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The effect of non-recovery of the weapon cannot be a reason for not framing charges under Section 397 IPC: Delhi High Court

The fact that the weapon has not been recovered is no ground for not framing charges under Section 397 IPC. The effect of non-recovery of the weapon would be seen only in trial and that cannot be a reason for not framing charges under Section 397 IPC as held by the High Court of Delhi through the learned bench led by Justice Subramonium Prasad in the case of State V. Hassan Ahmed (CRL.REV.P. 108/2021) Facts of the case are that a complaint was received from one Navi S/o Sanjiv Bhadu, stating that on 11.04.2016 at about 9 PM, four of his friends, namely, Siddhant, Suyesh, Shubham and Pranav came to meet him at his house. It is stated that at about 1:00 AM he along with his friends went to Janakpuri to drop Pranav to his work in a car. It is stated that at about 1:40 AM the complainant stopped the car, to buy a cigarette. Pranav and Suyesh got off the car and a grey coloured Swift Dzire car came from the wrong side and parked their car behind the car of the complainant. The occupants of the car introduced themselves as officials of Delhi Police and asked the complainant and his friends as to what they were doing there and told them to sit inside the car. After the complainant and his friends sat in the car, one person threatened the complainant and his friends by brandishing a pistol and asked them to give all their belongings. The complainant and his friends gave their belongings to those persons. On the said complaint, was registered at Police Station South Campus for offences under Sections 392/34 IPC. Accused (respondent herein) was arrested in FIR registered at Police Station Malviya Nagar for offences under Sections 411/482 IPC and Sections 25/54/59 Arms Act. It is stated that during interrogation the accused gave a disclosure statement of having committed the offence in FIR No.189/2016 along with other persons who were there with him. The respondent herein refused to join the TIP. Charge-sheet has been filed stating that there is sufficient material against the respondent herein to proceed ahead against him for offences under Sections 397/34 IPC. On 25.02.2020, the learned District and Sessions Judge, Patiala House Courts, passed the impugned judgment framing charges against the respondent herein only for offences under Section 392 IPC. The learned District and Sessions Judge, Patiala House Courts, held that since the pistol had only been brandished, and it had not been used, and therefore, the offence under Section 397 IPC is not made out against the accused. Since, the offence under Section 392 IPC is triable by the learned Metropolitan Magistrate, the file was directed to be sent to the learned Chief Metropolitan Magistrate, Patiala House Courts to assign the case to its own Court or other Court in accordance with law. It is this order which has been assailed in the instant petition. After the perusal of the facts and arguments, the Hon’ble Court held, “The Apex Court upheld the judgment of the Bombay High Court in Govind Dipaji More v. State, AIR 1956 Bom 353, by observing that that if the knife was used for the purpose of producing such an impression upon the mind of a person that he would be compelled to part with his property, that would amount to ‘using’ the weapon within the meaning of Section 397 IPC. Accordingly, the revision petition is allowed. Charges under Section 397 IPC ought to be framed against the accused. The learned District and Sessions Judge, Patiala House Courts, New Delhi, is directed to assign the case to its own Court or other Court in accordance with law. With these observations, the petition is disposed of along with the pending application(s), if any.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 08th November 2021 IN THE MATTER OF: CRL.REV.P. 108 2021 ..... Petitioner Through: Ms. Meenakshi Chauhan APP for the State with SI Surendar Singh PS South Campus. ..... Respondent HASSAN AHMED HON BLE MR. JUSTICE SUBRAMONIUM PRASAD Through: Ms. Rakhi Dubey with Mr.Himanshu SUBRAMONIUM PRASAD J. Gera Advocates This petition under Section 397 401 Cr.P.C is directed against the order dated 25.02.2020 passed by the learned District and Sessions Judge Patiala House Courts New Delhi in SC No.58 2020 arising out of FIR No.189 2016 registered at Police Station South Campus for offences under Section 392 34 IPC. The learned District and Sessions Judge by the order impugned herein has held that the offence under Section 397 IPC is not made out against the accused respondent herein and the matter has been sent to the learned Chief Metropolitan Magistrate for framing of charge under The factual matrix which has led to the filing of the instant petition is Section 392 IPC. as under : CRL.REV.P. 108 2021 a) A complaint was received from one Navi S o Sanjiv Bhadu R o S 466 Second Floor Greater Kailash I New Delhi stating that on 11.04.2016 at about 9 PM four of his friends namely Siddhant Suyesh Shubham and Pranav came to meet him at his house. It is stated that at about 1:00 AM he along with his friends went to Janakpuri to drop Pranav to his work in a car bearing No. DL 1N 8064. It is stated that that the complainant was driving the car. It is stated that at about 1:40 AM the complainant stopped the car at Ring Road Dhaula Kuan Delhi before South Moti Bagh bus stand to buy a cigarette. It is stated that the complainant Pranav and Suyesh got off the car. It is stated that a grey coloured Swift Dzire car came from the wrong side and parked their car behind the car of the complainant. It is stated that the occupants of the car introduced themselves as officials of Delhi Police and asked complainant and his friends as to what they were doing there and told them to sit inside the car. It is stated that after the complainant and his friends sat in the car one person who was about 5 7 and had wheatish complexion threatened the complainant and his friends by brandishing a pistol and asked them to give all their belongings. It is stated that the complainant and his friends gave their belongings to those persons. On the said complaint FIR No.189 2016 dated 12.04.2016 was registered at Police Station South Campus for offences under Sections 392 34 IPC. CRL.REV.P. 108 2021 b) Accusedwas arrested in FIR No.559 2016 registered at Police Station Malviya Nagar for offences under Sections 411 482 IPC and Sections 25 54 59 Arms Act. It is stated that during interrogation the accused gave a disclosure statement of having committed the offence in FIR No.189 2016 along with other persons who were there with him. The respondent herein refused to join the TIP. c) Charge sheet has been filed stating that there is sufficient material against the respondent herein to proceed ahead against him for offences under Sections 397 34 IPC. d) On 25.02.2020 the learned District and Sessions Judge Patiala House Courts passed the impugned judgment framing charges against the respondent herein only for offences under Section 392 IPC. The learned District and Sessions Judge Patiala House Courts held that since the pistol had only been brandished and it had not been used and therefore the offence under Section 397 IPC is not made out against the accused. Since the offence under Section 392 IPC is triable by the learned Metropolitan Magistrate the file was directed to be sent to the learned Chief Metropolitan Magistrate Patiala House Courts to assign the case to its own Court or other Court in accordance with law. It is this order which has been assailed in the instant petition. The question which arises for consideration in this case is whether when an act of robbery is committed by showing a revolver pistol then does an offence under Section 397 is made out or not CRL.REV.P. 108 2021 5. Ms. Meenakshi Chauhan learned APP for the State submits that showing a revolver pistol to commit robbery is sufficient to attract the provisions of Section 397 IPC. The learned APP for the State relies on the judgment of the Supreme Court in Phool Kumar v. Delhi Admn. 1 SCC 797 to contend that the judgment impugned herein is completely contrary to the laws laid down by the Supreme Court. Per contra Ms. Rakhi Dubey learned counsel appearing for the accused respondent herein contends that there is no recovery of any material which is alleged to have been robbed by the accused respondent herein. She therefore states that the offence under Section 397 IPC is not made out against the respondent. It is further contended by the learned counsel for the respondent that the weapon used in the alleged incident has also not been recovered from the accused. It is further contended by the learned counsel for the respondent that the accused respondent was arrested in some other case and he is being falsely implicated in the present case. Heard Ms. Meenakshi Chauhan learned APP for the State and Ms. Rakhi Dubey learned counsel appearing for the accused respondent and perused the material on record. Section 397 IPC reads as under: 397. Robbery or dacoity with attempt to cause death or grievous hurt.—If at the time of committing robbery or dacoity the offender uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any per son the imprisonment with which such offender shall be punished shall not be less than seven years." The Supreme Court in Phool Kumarhas observed as under: CRL.REV.P. 108 2021 7. If the deadly weapon is actually used by the offender in the commission of the robbery such as in causing grievous hurt death or the like then it is of Chandra Nagar Nath v. EmperorSingh v. Emperorand Inder Singh v. Emperorsome overt act such as brandishing the weapon against another person in order to overawe him or displaying the deadly weapon to frighten his victim have been held to attract the provisions of Section 397 of the Penal Code. J.C. Shah and Vyas JJ. of the Bombay High Court have said the case of Govind Dipaji More v. Statethat if the knife “was used for the purpose of producing such an impression upon the mind of a person that he would be compelled to part with his property that would amount to „using‟ the weapon within the meaning of Section 397.” In that case also the evidence against the appellant was that he carried a knife in his hand when he went to the shop of the victim. In our opinion this is the correct view of the law and the restricted meaning given to the word “uses” in the case of Chand Singh2 Punj and Har 108] is not correct." emphasis supplied) 10. A reading of the abovementioned judgment shows that the term use would include brandishing the weapon against another person in order to overpower him or to frighten his victim. The Apex Court upheld the judgment of the Bombay High Court in Govind Dipaji More v. State AIR 1956 Bom 353 by observing that that if the knife was used for the purpose of producing such an impression upon the mind of a person that he would be compelled to part with his property that would amount to ‘using’ the CRL.REV.P. 108 2021 weapon within the meaning of Section 397 IPC. The Supreme Court has over ruled the judgment of the Full Bench of the High Court of Punjab & Haryana in State v. Chand Singh ILR2 Punj and Har 108 on this 11. The fact that the weapon has not been recovered is no ground for not framing charges under Section 397 IPC. The effect of non recovery of the weapon would be seen only in trial and that cannot be a reason for not framing charges under Section 397 IPC. 12. Accordingly the revision petition is allowed. Charges under Section 397 IPC ought to be framed against the accused. The learned District and Sessions Judge Patiala House Courts New Delhi is directed to assign the case to its own Court or other Court in accordance with law. 13. With these observations the petition is disposed of along with the pending application(s) if any. NOVEMBER 08 2021 SUBRAMONIUM PRASAD J CRL.REV.P. 108 2021

The petitioners Should get an Opportunity to Urge their Contentions and the Court is Duty Bound to heard the Matter: High Court of Kerala.

The petitioners should get an opportunity to urge their contentions based on the additional documents produced and the matter to be heard by the respective court. The honorable judgement was passed by High Court of Kerala in the case of M. Shahudeen and Samuelkutty v. Kerala Vyapari Vyavasai Ekopana Samithi [OP(C). No .383 OF 2020] by The Honorable Mr. Justice T.V. Anil Kumar. Petitioners in this original petition were defendant Nos.1 and 2 in O.S.No.331/2019. An order of temporary injunction was passed by the court of first instance restraining the petitioners from entering into plaint property and causing obstruction to possession and enjoyment of plaintiffs. Being aggrieved by the order, C.M.A.No.25/2019 was filed by the petitioners. It was dismissed confirming the order passed by the trial court. The concurrent order of temporary injunction passed by the both courts below are challenged in this original petition. When the matter came up for hearing, the learned counsel for the petitioners pointed out that the appellate court happened to agree with the trial court’s view only because additional documents produced in appeal by him were overlooked by that court. Had those documents also been considered it is contended, a different view would have been taken by the appellate court. The learned counsel for the respondents, on the other hand, submitted that those documents are not admissible in evidence and even if they are taken into account also, the order granting temporary injunction passed by the court of first instance would only have been upheld. The court opinioned that, “it doesn’t want to express any opinion on merits of the contentions raised by the parties on either side, and is of the opinion that the petitioners should get an opportunity to urge their contentions based on the additional documents produced in C.M.A.No.25/2019 and the matter to be heard. Having heard the submissions made on behalf of the parties, court do not intend to interfere with the concurrent orders passed by the both courts below.”

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR FRIDAY THE 26TH DAY OF MARCH 2021 5TH CHAITHRA 1943 OP(C).No.383 OF 2020 AGAINST THE ORDER DATED 29 10 2019 IN C.M.A.NO.25 2019 OF SUB COURT KOTTARAKKARA AGAINST THE ORDER IN I.A.NO.1597 2019 IN O.S. NO.331 2019 OF MUNSIFF COURT KOTTARAKKARA PETITIONER APPELLANTS 1 AND 2 DEFENDANTS 1 AND 2 AGED 85 YEARS BANGLAVIL MUSLIM STREET PADINJATTINKARA MURI KOTTARAKKARA VILLAGE KOTTARAKKARA AGED 70 YEARS SAM VILLA KIZHAKKEKKARA MURI KOTTARAKKARA VILLAGE KOTTARAKKARA SRI.S.NIDHEESH KERALA VYAPARI VYAVASAI EKOPANA SAMITHI REG. NO.262 81 KOTTARAKKARA UNIT VYAPARA BHAVAN KOTTARAKKARA KOTTARAKKARA VILLAGE 691506 C. L. JOHN PRESIDENT KERALA VYAPARI VYAVASAI EKOPANA SAMITHI KOTTARAKKARA UNIT DOING BUSINESS AS ARADHANA TRONIX PULAMON KOTTARAKKARA RESIDING AT ARADHANA KIZHAKKETHERUVU P. O. KOTTARAKKARA 691 506 N. RAMACHANDRAN NAIR GENERAL SECRETARY KERALA VYAPARI VYAVASAI EKOPANA SAMITHI KOTTARAKKARA UNIT DOING BUSINESS AS MOHAN DIGITAL STUDIO HOSPITAL JUNCTION KOTTARAKKARA RESIDING AT VALLAMKULATHUMADAM PADINJATTINKARA MURI KOTTARAKKARA VILLAGE 691 506 :2: P. K. VIJAYAKUMAR TREASURER KERALA VYAPARI VYAVASAI EKOPANA SAMITHI KOTTARAKKARA UNIT DOING BUSINESS AT KARTHIKA COLOUR CENTRE RAILWAY STATION JUNCTION KOTTARAKKARA RESIDING AT SREELAKSHMI PADINJATTINKARA KOTTARAKKARA 691 506 R1 4 BY ADVS. SRI.R.GIREESH VARMA SRI.V.K.NANDAKUMARAN THIS OP HAVING BEEN FINALLY HEARD ON 26.03.2021 THE COURT ON THE SAME DAY DELIVERED THE :3: Dated this the 26th day of March 2021 JUDGMENT Petitioners in this original petition are defendant Nos.1 and 2 in O.S.No.331 2019. An order of temporary injunction was passed by the court of first instance restraining the petitioners from entering into plaint property and causing obstruction to possession and enjoyment of Being aggrieved by the order C.M.A.No.25 2019 was filed by the petitioners. It was dismissed confirming the order passed by the trial court. The concurrent order of temporary injunction passed by the both courts below are challenged in this original petition When the matter came up for hearing the learned counsel for the petitioners pointed out that the appellate court happened to agree with the trial court s view only because additional documents produced in appeal by him were overlooked by that court. Had those documents also been considered it is contended a different view would have been taken by the appellate court :4: The learned counsel for the respondents on the other hand submitted that those documents are not admissible in evidence and even if they are taken into account also the order granting temporary injunction passed by the court of first instance would only have been upheld. I do not want to express any opinion on merits of the contentions raised by the parties on either side I am of the opinion that the petitioners should get an opportunity to urge their contentions based on the additional documents produced in C.M.A.No.25 2019 and the matter to be heard Having heard the submissions made on behalf of the parties I do not intend to interfere with the concurrent orders passed by the both courts below. While allowing the impugned orders to sustain I am of the opinion that Sub Court Kottarakkara has to have a re look into the issues raised in I.A.No.1597 2019 and decide the matter afresh after hearing parties In the result this original petition is disposed of calling upon Sub Court Kottarakkara to reconsider I.A.No.1597 2019 after hearing :5: parties in accordance with law within a period of three months from the date of production of certified copy of this judgment. The court below may give parties on both sides opportunity to produce documents on their side and it may decide the issues on hand untrammelled by the observations made in C.M.A.No.25 2019. It is further made clear that it will be open to the parties to urge before the court below that the suit itself may be disposed of provided it is ripe All pending interlocutory applications will P.A.To Judge PETITIONERS EXHIBITS :6: TRUE COPY OF THE PLAINT IN O.S.NO.331 2019 ON THE FILE OF MUNSIFF COURT KOTTARAKKARA TRUE COPY OF THE OBJECTION DATED 4.7.2019 FILED BY THE DEFENDANTS PETITIONERS HEREIN) IN O.S.331 2019 IN TRUE COPY OF THE ORDER OF THE LEARNED MUNSIFF S COURT IN I.A.1597 2019 IN O.S.331 2019 DATED 17.7.2019 TRUE COPY OF THE ORDER OF THE SUB COURT IN C.M.APPEAL 25 2019 DATED 29.10.2019 TRUE COPY OF THE BYE LAW OF THE KERALA VYAPARI VYAVASAI EKOPANA SAMITHI TRUE COPY OF THE MINUTES OF THE RESPONDENT SAMITHI DATED 3.3.2019 TRUE COPY OF THE LETTER DATED 15.11.2017 ISSUED TO THE DISTRICT PRESIDENT KERALA VYAPARI VYAVASAI TRUE COPY OF THE LETTER OF THE DISTRICT COMMITTEE DATED 18.11.2017 TRUE COPY OF THE NOTICE OF ELECTION TRUE COPY OF THE MINUTES OF THE MEETING TRUE COPY OF THE RELEVANT PORTION OF THE MINUTES DATED 4.4.2018 PAGES 154 156 TRUE COPY OF THE LETTER OF REQUEST DATED 5.4.2018 BY THE KOTTARAKKARA UNIT OF VYAPARI VYAVASAI EKOPANA SAMITHI TO THE DISTRICT COMMITTEE :7: TRUE COPY OF THE LETTER DATED 5.5.2018 OF THE DISTRICT COMMITTEE KOLLAM OF VYAPARI VYAVASAI EKOPANA SAMITHI TRUE COPY OF THE REPORT OF THE COMMISSIONER IN O.S.331 2019 IN I.A.NO.1646 2019 DATED 29.6.2019 RESPONDENTS EXHIBITS: NIL

Timely administration of Covid test result is covered under Article 21 of the Indian Constitution: Karnataka High Court

Right to health is an integral part of Right to life under Article 21 of the Indian Constitution. Therefore, providing timely Covid test results is a necessity to prevent deterioration of health of Covid patients. A Division Bench comprising of Chief Justice Abhay Oka and Justice Aravind Kumar while adjudicating the matter in Re Karnataka High Court Case [W.P.No.6435/2020] dealt with the issue of timely health management and provision of free food grains to the poor and needy. One of the staff members of the High Court died to Covid-19 because there was an inordinate delay in announcing the Covid test result. In another incident pertaining to the pandemic, an indent was placed by the State Government with the Central Government for two crore doses of Covishield and one crore doses of Covaxin to vaccinate beneficiaries from the age group of 18 years to 44 years. Only around 6 lakh doses of Covishield vaccine were received by the State Government. Several individuals who were administered the first dose, were unable to receive the second dose, despite the expiry of 6-week prescription period between the two doses. Thus, the situation prevailing today clearly showed that if all the available 9 lakh doses are to be used for administering the second dose, a substantial number of beneficiaries who have taken the first dose will not get the second dose, thereby rendering the first dose less effective. In response to the prevailing situation, the Karnataka State Government filed written submissions indicating that after the last order was passed, certain additional doses of vaccine were received. Upon considering the aforesaid facts, the Court in response to the first situation dealing with death of a High Court staff member due to delayed test result, held that the State Government must initiate appropriate action in accordance with law against all concerned individuals who are responsible for this lapse and place on record a report on the action taken. The test results should be informed to the concerned individual within 24 hours from the collection of the swab sample. In response to the second situation dealing with the issue of vaccination, the Court held that We have already noted that right to health is an integral part of the right to life guaranteed under Article 21 of the Constitution of India. Considering the corresponding obligation of the State, the Central Government came out with the policy of vaccination.

1 CJ & AKJ: Through Video Conferencing) and connected matters The Registry has brought to our notice that one of the staff members of the High Court Sri S.V.Muniraju aged 45 years died yesterday in the night. We are taking on record a printout of the test report. It shows that on 10th May 2021 at 11.06.53 hours his swab sample was collected by the laboratory of Sir C.V.Raman General Hospital Bengaluru. The laboratory received the swab sample after a lapse of 22 hours at 09.00.56 hours on 11th May 2021. It appears that the sample was tested on 11th May 2021 at 13.00.56 hours and the positive result was reported at 13.43.04 hours on 11th May 2021. The members of the Registry have learnt time of his death test result was not communicated to the deceased. There is a direction issued by this Court that test results should be informed to the concerned individual within 24 hours from the collection of the swab sample. So this may be a case where though the sample was collected on 10th May 2021 at 11.06.53 hours but till his death yesterday Sri S.V.Muniraju was not communicated the test result. Thus he could not take treatment for COVID 19. We are not taking up the WWW.LIVELAW.IN 2 matter because the person concerned was an employee of this Court. We are worried about the non implementation of the orders of this Court and the lives of the citizens. 2. We direct the State Government appropriate action in accordance with law against all concerned who are responsible for this lapse and place on record a report on the action taken on the next date. We direct that the State Government shall again issue a direction to all the Laboratories to ensure that such incidents are not repeated and test reports are made available within 24 hours. VACCINATION For the sake of continuity we are reproducing the factual details which are incorporated in paragraphs 12 and 13 of our order dated 11th May 2021 12. After the written submissions filed by the State Government today and the written submissions filed by Sri Vikram Huilgol the learned Amicus Curiae the following factual situation emerges a) On 22nd April 2021 and 29th April 2021 an indent was placed by the State Government with the Central Government two crore doses of COVISHIELD. An indent was placed on 3rd May 2021 for one crore doses of COVAXIN for vaccinating the beneficiaries belonging to the category of 18 to 44 years WWW.LIVELAW.IN 3 6 50 000 b) However for administering COVISHIELD vaccine have been received c) Thus the total doses available as of today are 9 37 780. But as of 5th May 2021 65 83 687 beneficiaries needed the second dose d) Thus the situation which prevails today clearly shows that if all the available 9 37 780 doses are to be used the second dose a substantial number of beneficiaries who have taken the first dose will not get the second dose. The situation is very serious as can be seen from the representation dated 6th May 2021 submitted by the State Government to the Central Government as per the directions issued in paragraph 9 of the order dated 6th May 2021 which we have quoted earlier. The said letter contains the following details a) As per the target of providing vaccine to 1.71 crore eligible beneficiaries aged about 45 years the State of Karnataka has covered 72 25 064 first dose and 11 71 008 regarding those who have taken COVISHIELD as a first dose and have completed minimum six weeks from the date of taking the first dose have been also stated b) 9 92 629 beneficiaries who have taken the first dose of COVISHIELD have completed six weeks from the date of their first dose 5 30 540 beneficiaries have completed seven weeks from the date of their first dose and 1 60 279 beneficiaries have completed eight weeks after receiving the first dose. Thus approximately 16 83 448 beneficiaries who have taken the first dose of COVISHIELD will immediately the prevailing guidelines of the Central Government which require second dose to be administered six to eight weeks after the first dose COVAXIN as the first dose have completed four weeks 3 10 022 beneficiaries have completed five weeks and 2 17 543 beneficiaries have completed six weeks. As per the present guidelines those who have taken COVAXIN as a first dose will have to take the second dose within 28 days from the date of first the second dose. The c) 3 97 894 beneficiaries who have the second dose as per WWW.LIVELAW.IN 4 the scenario which emerges dose. So 9 25 459 beneficiaries who have taken the first dose of COVAXIN more than four weeks back have not been given the second dose d) Broadly it can be said that about 26 00 000 beneficiaries in the State who have taken the first dose of COVISHIELD or COVAXIN have not received the second dose though it is overdue as per the prevailing norms of the Central Government. More importantly the total stock of vaccines available in the State is only 9 37 780 of doses. Hence there is no possibility of majority of 26 00 000 beneficiaries getting the second dose which is already overdue. We may hasten to add here that the aforesaid figure of 26 00 000 does not include the other 39 00 000 beneficiaries who have taken only first dose." underline supplied) Today the State Government has filed written submissions. The written submissions seem to indicate that after the last order was passed certain additional doses of vaccine were received. It is stated that on 12th May 2021 at 6.00 a.m. the State had a total stock of 12 32 960 doses of vaccine which included both the Government of India quota and the State procured quota. 50% quota from the Central Government is free of cost and 50% quota from the sources other than the Central Government is to be utilised for vaccinating persons belonging to the age group of 18 44 years. It is stated that 1 08 000 doses were administered on 12th May 2021. However there is no WWW.LIVELAW.IN 5 categorical statement that all the doses were administered to those whom the second dose was due. Now today the stand of the State is that in case of 14 87 262 COVISHIELD beneficiaries second dose is due and in case of 5 10 467 COVAXIN beneficiaries second dose is due. Thus the total figure comes to 19 97 729. Out of the total stock of 12 32 960 doses available at 6.00 a.m on 12th May 2021 a quantity of 1 08 000 has been utilised. Hence the doses which are available today are 11 24 960. Thus there will be a shortage of approximately 8 72 000 doses for providing second dose to 19 97 729 persons. We may record here that the figures which are stated today by the State Government are inconsistent with the figures which were placed before the Court on the earlier dates and the figures which have been incorporated in the letter dated 6th May 2021 of the State Government. The stand the memo filed by Government of India is that as of today second dose of COVAXIN is recommended to be administered after four to six weeks of the first dose and the second dose of COVISHIELD is recommended to be administered after six to eight weeks of the WWW.LIVELAW.IN 6 first dose. Paragraph 9 of the said memo states that a body of experts is looking into the question of the effect of the failure to abide by the aforesaid timelines while administering the second dose. Ms.Aishwarya Bhati learned Additional Solicitor General of India who addressed the Court from Delhi states that the report of the body of experts is expected within few days. There cannot be any distinction between the words due and overdue when it comes to administration of the second dose. Once as per the existing timelines the second dose is due it is an obligation of the Governments to ensure that the second dose is provided. If the second dose is not provided it will be a violation of the fundamental rights of the citizens under Article 21 of the Constitution of India. Thus as stated above even in case of persons whose second dose is due as on today considering the availability of vaccine more than 8 00 000 persons will not get the second dose. As per the written submissions filed by the learned Amicus Curiae as of 6th May 2021 5 16 234 HCWs and FLWs were to receive the second dose. The learned Amicus Curiae states that as of today the figure may have crossed 5 20 000. Perhaps this figure is not accounted for in the written WWW.LIVELAW.IN 7 submissions of the State Government when they have given the figure of 19 97 729. 7. We may record here that as noted in the earlier order dated 11th May 2021 65 83 687 beneficiaries who had taken the first dose as of 5th May 2021 were awaiting the second dose. The figure as of today must be much more than 65 83 687. Therefore the figure of 19 97 729 beneficiaries to whom second dose is due as of today will not be a static figure and by a simple calculation everyday few lakh numbers will be added to the said figure. Now coming to the memo filed by the Government of India in the first fortnight of May 2021 13 36 670 doses were provided to the State Government. These doses are representing 50% quota which the State can procure from the Central Government. The memo records that in addition to that in the 50% quota of "other than the Central Government" the State of Karnataka has received 8 94 170 vaccines to cover the age group of 18 to 44 years. The figure of 12 32 960 at 6.00 a.m on 12th May 2021 includes the doses of vaccine of both the categories. The learned Additional Solicitor General invited our attention to the letters dated 16th April 2021 29th April 2021 and WWW.LIVELAW.IN 8 6th May 2021 addressed by the Central Government to the State Governments. In the first letter itself the Central Government had informed all the State Governments to ensure timely completion of the second dose to the beneficiaries as per the recommended dose interval. The said letter also warns the State Governments that it is important to ensure that the second dose is not delayed or missed so that full protection is conferred on the recipient. In the second letter dated 29th April 2021 there is a clear guideline laid down by the Government of India that those beneficiaries who are due for the second dose of vaccine shall be prioritized so as to provide them full protection against COVID 19. The third letter of 6th May 2021 specifically lays down that the State Governments are advised to utilize the allocation of vaccines supplied through the Government of India channel in the ratio of 70 : 30. Thus 70% of the doses shall be used for second dose and 30% for the first dose respectively. 10. When we made a query to the learned Additional Solicitor General who is addressing the Court from Delhi whether at present the State Government can utilize the quota of vaccine allotted to it for the age group of 18 to 44 years for giving them the first dose the learned Additional Solicitor General states that WWW.LIVELAW.IN 9 the advisory of the Central Government is very clear that unless those who have taken the first dose get the second dose on due date first dose shall not be given to the said age group of 18 to 44 years. She however states that it is for the State Government to implement the advisory. 11. We have already noted that right to health is an integral part of the right to life guaranteed under Article 21 of the Constitution of India. Considering the corresponding obligation of the State the Central Government came out with the policy of vaccination. If those who have taken the first dose are not administered the second dose on the respective due dates apart from violation of the fundamental rights of the said citizens under Article 21 of the Constitution of India if they are required to take the first dose again it will be a huge national waste of the first dose already administered to them. Taking the figures which are stated by the State Government as correct even if the State Government receives more than 40 00 000 doses in the second quarter of May 2021 it may not be able to cater to the need of all those who have taken the first dose so far. Therefore this may be a fit case to issue a mandatory direction to both the Governments to ensure that sufficient quantity of doses of vaccine is procured WWW.LIVELAW.IN 10 which will ensure that all those persons to whom the second dose is due get the second dose. In normal course we had no option but to issue such a direction. However the learned Additional Solicitor General states that a decision on allocation of vaccine for the second fortnight of May 2021 is likely to be taken tomorrow. She states that if the State Government immediately furnishes on excel sheets the entire district wise data of the persons to whom the second dose is due and the persons to whom the second dose is likely to become due the Central Government will make every endeavour to bridge the gap to ensure that no one is denied the second dose which has become due. It is in the light of this assurance given by the learned Additional Solicitor General that today we are not issuing any mandatory direction. However we direct the State Government to immediately furnish the aforesaid details to the Central Government. 12. When we pointed out the guidelines contained in the aforesaid three letters of the Central Government to the learned Advocate General and the learned Additional Advocate General and when we questioned them why the State has overlooked the guidelines in the said letters the learned Advocate General seeks time to respond. While we grant time to the State to respond to WWW.LIVELAW.IN 11 the same it is absolutely necessary for the State Government to abide by the said guidelines considering the desperate and critical situation created today due to failure to administer second dose to about 20 00 000 citizens. 13. The sum and substance of the guidelines appears to be that the first priority of the State Government should be to provide vaccine to those who have taken the first dose. Needless to add that as and when more and more doses are made available by the Central Government equitable distribution of second dose will have to be made. By way of an illustration we may record here that if a person has taken the first dose of COVISHIELD more than eight weeks back he must get priority over the person who has completed seven weeks from the date of taking the first dose of COVISHIELD. Thus it is mandatory for the State Government to ensure that a rational and fair formula is adopted for giving second dose of vaccination. 14. The Central Government will place on record the decision taken regarding allocation of quota of vaccine to the State Government for the second fortnight of May 2021 as soon as the same is taken. WWW.LIVELAW.IN 12 15. We also direct the State Government to place on record all the facts and figures regarding the second dose administered throughout the State. The State Government will place the same on record on 19th May 2021. 16. W.P.No.8475 2021 has been filed where the prayer is for giving priority for vaccination to persons with benchmark disabilities who are not able to visit the centres where vaccination is provided. The State Government has produced on record along with a memo the guidelines issued in this behalf on 10th May 2021. Going by the facts and figures on record and considering the situation which prevails today and the guidelines of the Central Government though it is very unfortunate whatever vaccines are available now will have to be used for administering the second dose. Therefore today we are not in a position to issue any further directions. However further steps taken at the district level on the basis of the said guidelines dated 10th May 2021 shall be placed on record by the State Government by 19th May 2021. WWW.LIVELAW.IN 13 FOOD SECURITY 17. Now coming to the issue of food security in the written submissions filed yesterday and today the State Government has referred to implementation of the scheme which is being implemented through Indira Canteens throughout the State. Today the learned Standing Counsel appearing for the Central Government has placed on record a copy of the Press Information Bureau publication of 23rd April 2021. For the sake of convenience we are reproducing paragraph 2 of the memo filed today by the Central Government which reads thus: "2. With regard to distribution of food India Ministry of grains Government of Consumer Affairs and Public Distribution vide Press Information Bureau dated 23 04 2021 notified that Government of India decided to allocate free of cost food grains at 5 Kgs per person per month to nearly 80 crore beneficiaries covered under the National Food Security Act 2013 over and above NFSA Food grains for next two months i.e. May and June 2021 on the same pattern as the earlier "Pradhan Mantri PM GKAY)". Garib Kalyan Anna Yojana PM GKAY) around 80 crore NFSA beneficiaries covered under both the categories of NFSA namely Antyodaya Anna Yojana and Priority Householders will be provided with an additional quota of free of cost food grains Rice wheat) at a scale of 5 Kgs per person per month over and above their regular this Special scheme WWW.LIVELAW.IN 14 monthly entitlements under NFSA. A copy of Information Bureau publication the Press is annexed hereto as dated 23 04 2021 Annexure R.2." underline supplied) It goes without saying that now this decision of the Government of India will have to be implemented in the State of Karnataka and therefore we direct the State Government to take immediate steps to implement the said decision." It is pointed across the bar that in the first wave of pandemic and lockdown the orders passed by this Court on 11th June 2020 and 2nd July 2020 note that under the Atma Nirbhar Scheme of the Government of India a person who is not holding a ration card of any State was entitled to get free ration of 5 kg. of rice and 1 kg. of channa per person per month. We direct both the Governments to take a call on the issue whether the benefits of Atma Nirbhara Scheme as applicable last year can be extended to those who are not holding a ration card of any State. Appropriate decision taken by the Governments shall be placed on record within a period of one week from today. WWW.LIVELAW.IN 15 19. The learned Advocate General assures the Court that depending upon the situation the State Government will consider whether apart from the facility of providing cooked food through Indira Canteens ration kits can be made available to vulnerable sections of the society. There is already an order passed by this Court directing the State Government to identify the vulnerable sections of the society who have been affected by the partial lockdown. As far as implementation of the scheme through Indira Canteens is concerned before the next date the State Government shall place on record the necessary details in terms of number of beneficiaries. The data shall be district wise. In terms of the direction contained in paragraph 7 of the order dated 11th May 2021 the State Government has not taken any decision on the issue of restoring Dasoha helpline. We direct the State Government to take a decision immediately. The reason is that if such a helpline is created the State Government will immediately know who are the persons who are deprived of the benefits of the scheme of the State Government of supplying cooked food as well as well as the scheme of the Central Government to which we have made a reference earlier. We are WWW.LIVELAW.IN 16 of the view that it will be in the interests of all concerned that Dasoha helpline is restored. REPORT OF THE MONITORING COMMITTEE OF THE KARNATAKA STATE LEGAL SERVICES AUTHORITY 21. A very exhaustive report prepared by the State Level Monitoring Committee of the Karnataka State Legal Services Authority constituted to monitor COVID 19 issues is placed on record and the copies thereof have been supplied to the learned counsel appearing for the parties. Broadly two main issues arise on the basis of the said report. The first is in what manner the State Government is going to compensate the families of those who lost their lives in Chamarajanagar District Hospital due to the failure of the agencies and instrumentalities of the State to procure sufficient oxygen. The State Government will have to take a stand on the issue of compensating the families of the victims. It is needless to add that the decisions of the Apex Court in the case of RUDUL SAH vs STATE OF BIHAR AND ANOTHER1 followed by the case of SMT. NILABATI BEHERA ALIAS LALITA BEHERA vs STATE OF ORISSA AND OTHERS2 and various subsequent decisions hold that in a public 1 1983SCC 141 2 AIR 1993 SC 1960 WWW.LIVELAW.IN 17 law remedy in the form of a petition under Article 226 of the Constitution of India Writ Court can grant compensation for violation of the fundamental rights guaranteed under Article 21 of the Constitution of India. The State will have to respond on this issue. We are putting the State to notice that the question of exercising the power to grant compensation may be considered on the next date. 22. The second issue which arises on the basis of the said report is the responsibility for lapses. The State Government will have to take a call on this aspect. We must note here that the Committee has found instances of tampering with the relevant record. Therefore our earlier order that the record shall be retained in the custody of the Chief Secretary will continue to operate. Needless to add that if either the Commissioner appointed under the Commission of Inquiry Act 1952 or any Investigating Agency needs to look into the record the Chief Secretary will make available the said record. 23. As regards the supply of oxygen paragraph 1 of the memo dated 13th May 2021 of the Central Government is very WWW.LIVELAW.IN 18 clear. Now it is for the State Government to immediately communicate the requirements of the State to the concerned Authority of the Central Government in view of the assurance recorded therein. We may note here that the details of the oxygen procurement are placed on record by the State Government in the written submissions filed today. The learned Additional Solicitor General invited our attention to paragraph 11 of the written submissions filed by the State Government which records the additional quantity of oxygen received by the State. DIGNIFIED BURIAL OR CREMATION 24. The issue of dignified burial or cremation of those who have died due to COVID 19 has been W.P.No.8715 2021 and in I.A.No.5 2021 in W.P.No.8619 2020. A copy of the objections filed in I.A.No.5 2021 shall be supplied to the petitioner in W.P.No.8715 2021. On the next date we will hear the learned counsel appearing for the parties on the said issue. 25. The learned counsel appearing for the applicant in I.A.No.5 2021 has expressed one concern. His submission is that the guidelines issued by the State WWW.LIVELAW.IN 19 Government permit burial of the body of a person who has died due to COVID 19 without obtaining a death certificate. The learned Advocate General and the learned Additional Advocate General state that they will look into this aspect and respond on the next date. 26. Since various directions have been issued under this order it will be appropriate that before the next date either the learned Advocate General or the learned Additional Advocate General convenes a meeting of the learned counsel appearing for the parties so that the issues regarding compliances can be discussed and a proper response is given on the next date. 27. Before we part with today s order we must record our appreciation for the services rendered by the Committee of KSLSA headed by a retired Hon ble Judge of this Court of which another retired Hon ble Judge of this Court is also a part. There are other equally prominent members of the Committee. We must record our appreciation for the service rendered by all of them by submitting a report within such a short time. WWW.LIVELAW.IN 28. We direct that this group of petitions shall be listed on 20th May 2021 at 10.30 a.m for further hearing. 20 Sd CHIEF JUSTICE Sd JUDGE

The plea of husband that he does not possess any source of income ipso facto does not absolve him of his duty to maintain his wife: High Court of Delhi

The test for determination of maintenance in matrimonial disputes depends upon the financial status of the Respondent and the standard of living that the applicant was accustomed to in her matrimonial home. The maintenance amount awarded must be reasonable and realistic. The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able-bodied and has educational qualifications and the same was upheld by High Court of Delhi through the learned bench led by Justice Subramonium Prasad in the case of JAGMIT SINGH vs. SONIA SINGH [CRL.M.C. 2385/2021] on 08.02.2022. The facts of the case are that the marriage between the Petitioner and the Respondent was solemnized. As differences arose between the two, the Respondent filed a complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005. An FIR was also registered by the Respondent alleging cruelty and cheating which consequently prompted the Petitioner to move the Court for anticipatory bail. The Court had directed the Petitioner to a pay a sum of Rs. 50,000 per month towards maintenance to the Respondent. The Ld. Mahila Court in exercise of its power u/s 23 of the DV Act increased the interim maintenance to Rs. 1,00,000 per month in favour of the Respondent from the date of filing of the petition. The present petition, therefore, has been filed challenging the order of the Mahila Court. The petitioner’s counsel submitted that the Orders of the Ld. Mahila Court and the Ld. Sessions Court have disregarded the financial constraints of the Petitioner by misreading the data available on record. He stated that the reading of “liabilities” of the Petitioner as “assets” has led to the Courts below to arrive at the inflated figure of maintenance and this misreading has also led the Courts to believe that the Petitioner has concealed his true assets. He further stated that the respondent is a designer for large television networks earning a handsome amount of money. The respondent’s counsel submitted that the impugned Orders of the Courts are well-reasoned and based upon due consideration of the record before them. He submitted that the decision of the Ld. Sessions Court to direct the Petitioner to pay to the Respondent as interim maintenance has been taken after considering the status and the net-worth of the Petitioner. It was contended that according to Section 19(f) of the DV Act, the husband has to secure same level of alternate accommodation for the aggrieved person as was enjoyed by her in shared household. According to the facts and circumstances, the Court allowed the application filed by the respondent as the amount was solely for the purpose of interim maintenance and the same was to be adjusted with the final amount. The Court observed that “the test for determination of maintenance in matrimonial disputes depends upon the financial status of the Respondent and the standard of living that the applicant was accustomed to in her matrimonial home. The maintenance amount awarded must be reasonable and realistic. The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able-bodied and has educational qualifications.”

IN THE HIGH COURT OF DELHI AT NEW DELHI IN THE MATTER OF: Date of decision: 08th FEBRUARY 2022 CRL.M.C. 2385 2021 & CRL.M.As. 15783 2021 & 18164 2021 JAGMIT SINGH ..... Petitioner Through Mr. Mandeep Singh Vinaik Mr. Anjali Sharam Mr. Deepak Bashto Ms. Simmi Bhamrah Ms. Geetika Vyas Ms. Ragini Vinaik Ms.Vandini Dagar and Mr. Pawan Advocates SONIA SINGH HON BLE MR. JUSTICE SUBRAMONIUM PRASAD ..... Respondent Through Mr. Anunaya Mehta and Mr. Vinayak Thakur Advocates SUBRAMONIUM PRASAD J. This petition under Section 482 Cr.P.C. has been filed challenging Order dated 20.06.2015 passed by the Metropolitan Magistrate 01 Mahila Court South District Saket Courts New Delhi in C.C. No. 200 1 464853 16) and Order dated 20.09.2021 passed by the Additional Sessions Judge 05 South East Saket Courts directing the Petitioner herein to pay a sum of Rs. 1 35 000 per month to the Respondent herein as maintenance. The facts in brief leading up to this petition are as follows: It is stated that the marriage between the Petitioner and the Respondent was solemnized on 12.12.1997. As differences arose between the two the Respondent filed a complaint under Section 12 of the Protection of Women from Domestic Violence CRL.M.C. 2385 2021 Act 2005before the Ld. Mahila Court in the year 2012. An FIR had also been registered by the Respondent against the Petitioner alleging cruelty and cheating and this had prompted the Petitioner to move this Court for anticipatory bail. Therein this Court had directed the Petitioner to a pay a sum of Rs. 50 000 per month towards maintenance to the Respondent. b) Vide Order dated 26.06.2015 the Ld. Mahila Court exercising its power under Section 23 of the DV Act had increased the interim maintenance to Rs. 1 00 000 per month in favour of the Respondent from the date of filing of the petition i.e. 23.07.2012. c) This Order dated 26.06.2015 was challenged before the Ld. Sessions Courts. It is stated that vide judgement dated 20.09.2021 the Ld. Sessions Court dismissed the appeal preferred by the Petitioner and directed the Petitioner to pay a monthly sum of Rs. 35 000 in addition to the interim maintenance awarded by the Ld. Mahila Court and that the same would be towards alternate accommodation from the date of filing of complaint till disposal of the case before the Ld. Trial Court. d) Aggrieved by Orders dated 26.06.2015 and 20.09.2021 the Petitioner has approached this Court by way of the instant petition assailing the two impugned Orders. 3. Mr. Mandeep Singh Vinaik learned Counsel for the Petitioner has submitted that the Orders of the Ld. Mahila Court and the Ld. Sessions CRL.M.C. 2385 2021 Court have disregarded the financial constraints of the Petitioner by misreading the data available on record. He has stated that the reading of “liabilities” of the Petitioner as “assets” has led to the Courts below to arrive at the inflated figure of maintenance. Mr. Vinaik has submitted that this misreading has also led the Courts below to believe that the Petitioner has concealed his true assets and this selective reading glosses over the fact that the Petitioner has taken loans and has utilised his savings for litigation The learned Counsel for the Petitioner has submitted before this Court that the income of the Petitioner has been misinterpreted and that a temporary bank interest income resulting from a one time sale of property loan taken and maturity of an old LIC policy only in the financial year 2013 2014 cannot be considered as the basis for calculating the regular monthly income of the Petitioner. Furthermore Mr. Vinaik has submitted that there has been a misreading of the family holdings of the Petitioner as minor in various companies including assets which are disputed under litigation or non functional. 5. Mr. Vinaik has submitted that the admissions in the affidavit of the Respondent have been largely ignored. He has stated that the wife of the Petitioner is a designer for large television networks earning a handsome amount of money and has claimed that her annual income is only Rs. 2 lakhs and this is contradictory to her claim of her monthly rent being Rs. 45 000 . The learned Counsel for the Petitioner has cited various instances to showcase that the Respondent has been concealing her income. The learned Counsel for the Petitioner has argued that the impugned Order dated 20.09.2021 ignores the law laid down by the Supreme Court in CRL.M.C. 2385 2021 Rajnesh v. Neha 2 SCC 324 with regard to computation of interim maintenance and has proceeded on the basis that every woman in a marital dispute is to be granted maintenance regardless of the facts of the matter. Further the Ld. Sessions Court has overlooked the suppression of income tax returns on behalf of the Respondent. Mr. Vinaik has informed this Court that despite the financial constraints of the Petitioner he has unfailingly continued to pay Rs. 50 000 per month to the Respondent as per the directions of this Court. He has further submitted that the Respondent leads a very luxurious lifestyle and that as per her ITR of FY 2007 2008 she genderated an admitted personal income of Rs. 18.9 lacs per annum. 7. Mr. Vinaik has submitted that the impugned Orders of the Ld. Mahila Court and the Ld. Sessions Court suffer from various legal infirmities and lack application of mind. He has argued before this Court that the Courts below have failed to notice the evasions in the claims of the Respondent and has misinterpreted the claims disclosed by the Petitioner. Mr. Vinaik has stated that such a misreading has led to a grossly inflated figure being rendered as interim maintenance and that on these grounds the impugned Orders are liable to be set aside. He has further submitted that such adverse orders lead to victimization of the Petitioner and that due to dire circumstances it is financially unfeasible for the Petitioner to adhere to the directions of the Ld. Sessions Court. Per contra Mr. Anunaya Mehta learned Counsel appearing for the Respondent has argued that the impugned Orders of the Courts below are well reasoned and based upon due consideration of the record before them. He has submitted that the decision of the Ld. Sessions Court to direct the Petitioner to pay Rs. 1 35 000 per month to the Respondent as interim CRL.M.C. 2385 2021 maintenance has been taken after considering the status and the net worth of the Petitioner including his income assets expenses as well as the accommodation enjoyed by both the parties during the subsistence of their marital relations. Mr. Mehta has referred to Section 19(f) of the DV Act to state that the husband has to secure same level of alternate accommodation for the aggrieved person as was enjoyed by her in shared household or at least pay rent for the same if the circumstances so require. Therefore Mr. Mehta has stated that the grant of Rs. 35 000 towards alternate accommodation is not erroneous or perverse and does not warrant interference of this Court. The learned Counsel for the Respondent has referred to Section 20(2) of the DV Act to state that the monetary relief which is granted to the aggrieved person shall be “adequate fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed’”. Relying upon Rajnesh v. NehaMr. Mehta has stated that the test for determination of maintenance in matrimonial disputes depends upon the financial status of the Respondent and the standard of living that the applicant was accustomed to in her matrimonial home. 10. Mr. Mehta has informed this Court that the Petitioner is a very well off individual belonging to the upper strata of society and that the monthly income of the Petitioner is more than enough to spare the amount of maintenance granted to the Respondent. He has stated that the actual income of the Petitioner is much more than what has been disclosed by him on affidavit and that these methods are being adopted by the Petitioner to evade payment of maintenance. He has submitted that the Petitioner has himself CRL.M.C. 2385 2021 disclosed that his expenditure on litigation fees in the year 2013 2014 was 21.75 lacs which is contradictory to the claim that the Petitioner has an annual income of Rs. 18 lacs. Furthermore the claim of the Petitioner that he has taken a loan of Rs. 11.4 lacs for payment of the litigation fees from his uncle Dr. J.B. Singh is also incorrect as the affidavit states that the entire amount was paid by the Petitioner for himself. 11. The learned Counsel for the Respondent has referred to a list of immovable properties that have been purchased by the Petitioner and has stated that the value of his personal assets would be well over Rs. 150 200 crores. He has submitted that the Respondent has had no family support and has had to deal with the situation all alone and that the business of the Respondent has also reduced which is evident from the fact that she had to shut down her shop in Santushti Complex and now runs her business from a very small place in Kotla. 12. Heard Mr. Mandeep Singh Vinaik learned Counsel for the Petitioner Mr. Anunaya Mehta learned Counsel for the Respondent and perused the material on record. 13. At the outset this Court deems it appropriate to refer to Section 20 of the DV Act which stipulates that a Magistrate hearing an application under Section 12 of the DV Act may direct the Respondent to pay certain monetary relief to the aggrieved person. Section 20 further delineates the contours of the monetary relief that is to be paid to the aggrieved person including the criteria governing it as well as the manner in which the payment is to be made. For ease of comprehension Section 20 of the DV Act has been reproduced as under: 20. Monetary reliefs: CRL.M.C. 2385 2021 While disposing of an application under sub sectionof section 12 the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include but is not limited to loss caused due the loss of earnings the medical expenses a) b) c) destruction damage or removal of any property from the control of the aggrieved person and the maintenance for the aggrieved d) person as well as her children if any including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure 1973or any other law for the time being in The monetary relief granted under this section shall be adequate fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed. The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance as the nature and circumstances of the case may require. CRL.M.C. 2385 2021 xxx............................"(emphasis supplied) It would be pertinent to refer to the judgement of the Supreme Court in Rajnesh v. Neha wherein the Apex Court had comprehensively dealt with the issue of maintenance and had laid down the criteria for determining quantum of maintenance. The same has been reproduced as under: 77. The objective of granting interim permanent alimony is to ensure that the dependent spouse is not reduced to destitution or vagrancy on account of the failure of the marriage and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded. 78. The factors which would weigh with the court inter alia are the status of the parties reasonable needs of the wife and dependent children whether the applicant is educated and professionally qualified whether the applicant has any independent source of income whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home whether the applicant was employed prior to her marriage whether she was working during the subsistence of the marriage whether the wife was required to sacrifice her employment opportunities for nurturing the family child rearing and looking after adult members of the family reasonable costs of litigation for a non working wife. 7 SCC 7 Refer to Vinny Parmvir Parmar v. Parmvir Parmar 13 SCC 112 : 2012) 3 SCC290] CRL.M.C. 2385 2021 79. In Manish Jain v. Akanksha Jain 15 SCC 801 : 2 SCC Civ) 712] this Court held that the financial position of the parents of the applicant wife would not be material while determining the quantum of maintenance. An order of interim maintenance is conditional on the circumstance that the wife or husband who makes a claim has no independent income sufficient for her or his support. It is no answer to a claim of maintenance that the wife is educated and could support herself. The court must take into consideration the status of the parties and the capacity of the spouse to pay for her or his support. Maintenance is dependent upon factual situations the court should mould the claim for maintenance based on various factors brought before 80. On the other hand the financial capacity of the husband his actual income reasonable expenses for his own maintenance and dependent family members whom he is obliged to maintain under the law liabilities if any would be required to be taken into consideration to arrive at the appropriate quantum of maintenance to be paid. The court must have due regard to the standard of living of the husband as well as the spiralling inflation rates and high costs of living. The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able bodied and has educational qualifications. 12 SCC 303 : 5 SCC596 :4 SCC339] 81. A careful and just balance must be drawn between all relevant factors. The test for determination of maintenance in matrimonial disputes depends on the financial status of the respondent and the standard of living that the applicant was accustomed to in her CRL.M.C. 2385 2021 matrimonial home. 2 SCC 316 : 1 SCC 547 : 1 SCC Cri) 356] The maintenance amount awarded must be reasonable and realistic and avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent nor should it be so meagre that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort." 15. The Supreme Court has therefore observed that while there is no straitjacket formula to determine the quantum of maintenance it could be presumed that an able bodied husband was capable of earning sufficient money to maintain his wife and children and whether the wife was educated earning money and could support herself was no answer to a claim of maintenance. A careful and just balance is to be drawn between all the relevant factors and the test for determination of maintenance in matrimonial disputes depends on the financial status of the husband and the standard of living that the applicant was accustomed to in her matrimonial life. 16. The material on record discloses that the Ld. Mahila Court vide Order dated 20.06.2015 had awarded monthly interim maintenance of Rs. 50 000 to the Respondent herein in addition to the Rs. 50 000 that was already being paid by the Petitioner herein. However the Ld. Mahila Court had refrained from granting any amount towards rent in lieu of maintenance on the ground that the Respondent herein could easily arrange accommodation for herself. An appeal against this Order led to the impugned Order dated 20.09.2021 wherein the Ld. Sessions Court has painstakingly considered the CRL.M.C. 2385 2021 assets and liabilities of both the Petitioner and the Respondent to arrive at the decision to uphold the Order dated 20.06.2015. However the learned Sessions Court has further granted Rs.35 000 to the Respondent for the purposes of accommodation. It is pertinent to note at this juncture that the maintenance that has been awarded vide impugned Order dated 20.09.2021 is in the form of interim maintenance. Judicial discipline circumspects this Court from interfering in an Order rendered by Courts below and only justifies interference if the Order is egregious in nature and suffers from legal perversity. The scope and ambit of the High Court when exercising its powers under Section 482 Cr.P.C. while considering judgments of two Courts below is extremely narrow. It is well settled that unless the said Orders are perverse and have been passed on the basis of "nil evidence" the High Court must be slow in interfering with the concurrent judgments of the two Courts below. The High Court cannot substitute its own conclusion to the one arrived at by the two courts below who have rendered their decision it after considering all the material on record. 18. The Supreme Court in State of Kerala v. Puttumana Illath Jathavedan Namboodiri 2 SCC 452 the Supreme Court observed as under: “5. Having examined the impugned judgment of the High 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 CRL.M.C. 2385 2021 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 jurisdiction. Ordinarily as a second appellate therefore it would not be appropriate 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 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 reappreciating 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 the 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 Additional Sessions Judge in appeal is confirmed. This furnished stand cancelled. The respondent must surrender to serve the the Magistrate and affirmed by is allowed. Bail bonds In State of Haryana v. Rajmal 14 SCC 326 the Supreme Court observed as under: “14. In State of A.P. v. Pituhuk Rao9 SCC 537 : 2001 SCC 642] this Court held that the exercise of the revisional jurisdiction of the High Court in upsetting the concurrent finding of the facts cannot be accepted CRL.M.C. 2385 2021 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 SCC651 : 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.of the Report.)” 20. While rendering the impugned Order dated 20.09.2021 the Ld. Sessions Court noted that the Petitioner was a man of substantial means and that a cursory reading of the affidavit of the Petitioner has revealed that the Petitioner has not been truthful while disclosing his income. The Ld. Sessions Court after carefully considering the material placed before it had come to the conclusion that the award of interim maintenance by the Ld. Mahila Court was fully justifiable and could not be faulted. To this extent this Court finds no merit in the submissions of the Petitioner and does not deem it fit to interfere in the impugned Orders. 21. However the Ld. Sessions Court has failed to provide cogent reasons for granting an extra award of Rs.35 000 towards rent of accommodation of the Respondent herein. This Court is of the opinion that in the absence of a reasoned order pertaining to the grant of Rs.35 000 over and above the interim maintenance of Rs.1 00 000 that has been granted by the Ld. Mahila Court this portion of the impugned Order dated 20.09.2021 cannot CRL.M.C. 2385 2021 be sustained. 22. Vide Order dated 04.10.2021 this Court had directed the Petitioner to pay a sum of Rs. 1 00 000 per month to the Respondent herein as maintenance and had also directed the Petitioner to deposit a sum of Rs. 20 00 000 within four weeks from the date of the Order which had been done so on 29.10.2021. The Respondent herein filed an application for withdrawal of the amount of Rs. 20 00 000 wherein this Court had issued notice vide Order dated 16.11.2021. This Court considering the fact that this amount is solely for the purpose of interim maintenance and is to be adjusted with the final amount allows this application filed by the Respondent. In light of the above the instant petition is partly allowed along with any other pending application(s) if any. SUBRAMONIUM PRASAD J. FEBRUARY 08 2022 CRL.M.C. 2385 2021

A written application supported by an affidavit is a must for seeking condonation of delay: Delhi High Court

When a written statement is filed after 30 days of service of summons but before the expiry of further 90 days, the filing of the written statement must be accompanied with a written application setting out the reasons for the delay to allow the court to consider the reasons so given, to condone delay and receive the belated written statement giving reasons for granting such leave and enabling the court to impose appropriate costs. This was held by the Hon’ble Justice Asha Menon in the case of M/s OK Play India Pvt. Ltd. Vs. M/s A P Distributors and Anr. [CM (M) 346/2020] on the 17th of August, 2021 before the Hon’ble High Court of Delhi at New Delhi. The brief facts of the case are, The petitioner/plaintiff had filed the suit for the recovery of a sum of Rs.7,68,000/-. Summons were duly served on the respondent on 23rd January, 2019. the written statement had to be filed by 22nd February, 2019. However, the written statement was filed on 26th February 2019, with a delay of four days and that too, without the affidavit of admission and denial of documents, as mandated by the Delhi High Court (Original Side) Rules 2018. Neither was the written statement accompanied with any application seeking condonation of delay. the learned Commercial Court heard the objections raised by the petitioner/plaintiff on 31st October 2019 and reserved the matter for orders for pronouncement at 4 PM that day. However, at 4 PM itself, the learned Court accepted an application filed by the respondents/defendants under Section 151 C.P.C., for condonation of the delay in filing the written statement and re-fixed the matter for orders on 26th November 2019.  The counsel for the petitioner submits that, on 20th May 2019, the affidavit of admission and denial was filed i.e., after 118 days of the service of summons, and once again, no application for condonation of delay accompanied the filing of the said affidavit. This, according to the learned counsel for the petitioner/plaintiff, has greatly prejudiced it as the time lines in a commercial suit were strict and the petitioner/Plaintiff was entitled to a decree as the written statement and affidavit had been filed belatedly and without applications for condonation of delay. The application for condonation of delay could not have been filed and taken on record on 30th October, 2020, after the expiry of 120 days from the date of service, beyond which period, the Court had no powers to condone delay in filing the written statement. Learned counsel argued that no application for condonation of delay could have been received once the matter was fixed for orders. The commercial court noted that, that though the application for condonation of delay was filed only on 31st October, 2020, the written statement and the affidavit had been filed well within the period of 120 days, the period up to which time the court had powers to condone the delay. It was also of the opinion that as the application for condonation of delay had brought out cogent reasons to explain the delay, therefore, a hyper technical view was not called for.

CM346 2020 IN THE HIGH COURT OF DELHI AT NEW DELHI % Reserved on: 16th July 2021 Pronounced on: 17th August 2021 + CM346 2020 CM APPL.10013 2020M S OK PLAY INDIA PVT LTD ..... Petitioner Through: Mr. Anirudh Wadhwa and Mr. Vipul Kumar Advocates versus M S A P DISTRIBUTORS & ANR .....Respondents Through: None CORAM: HON BLE MS. JUSTICE ASHA MENON JUDGMENT 1. This petition under Article 227 of the Constitution of India has been filed by the plaintiff before the learned Commercial Court being aggrieved with its order dated 26th November 2019 whereby it had rejected the objections raised by the petitioner plaintiff against the belated filing of the written statement by the respondents defendants allowing an application filed for condonation of delay much after the period of limitation. CM346 2020 2. The petitioner plaintiff had filed the suit bearing number CS81 2018 for the recovery of a sum of Rs.7 68 000 . Summons were duly served on the respondent on 23rd January 2019. 3. Mr. Anirudh Wadhwa learned counsel for the petitioner plaintiff submitted that the written statement had to be filed by 22nd February 2019. However the written statement was filed on 26th February 2019 with a delay of four days and that too without the affidavit of admission and denial of documents as mandated by the Delhi High CourtRules 2018. Neither was the written statement accompanied with any application seeking condonation of delay. 4. Learned counsel further submitted that on 20th May 2019 the affidavit of admission and denial was filed i.e. after 118 days of the service of summons and once again no application for condonation of delay accompanied the filing of the said affidavit. 5. The learned Commercial Court heard the objections raised by the petitioner plaintiff on 31st October 2019 and reserved the matter for orders for pronouncement at 4 PM that day. However at 4 PM itself the learned Court accepted an application filed by the respondents defendants under Section 151 C.P.C. for condonation of the delay in filing the written statement and re fixed the matter for orders on 26th November 2019. 6. This according to the learned counsel for the petitioner plaintiff has greatly prejudiced it as the time lines in a commercial suit were strict and the petitioner Plaintiff was entitled to a decree as the written statement and affidavit had been filed belatedly and without applications for condonation of delay. The application for condonation of delay could CM346 2020 not have been filed and taken on record on 30th October 2020 after the expiry of 120 days from the date of service beyond which period the Court had no powers to condone delay in filing the written statement. Learned counsel argued that no application for condonation of delay could have been received once the matter was fixed for orders. Reliance has been placed on the judgment of this Court in Friends Motel Pvt. Ltd. Through its director Mr. Arun Dwivedi Vs. Shreeved Consultancy LLP & ors.140 2019) and the judgment of the Supreme Court in SCG contracts India Private Limited Vs. K.S. Chamankar Infrastructure Private Limited and Others 2019SCC 210. 7. Despite service none had appeared to argue on behalf of the respondents defendants. 8. The learned Commercial Court in the impugned orders had noted the objections raised by the petitioner plaintiff. It records an explanation offered in the application for condonation of delay that the written statement was delayed on account of the time taken for procuring the original documents. But what prevailed upon the learned Commercial Court was the fact that though the application for condonation of delay was filed only on 31st October 2020 the written statement and the affidavit had been filed well within the period of 120 days the period up to which time the court had powers to condone the delay. It was also of the opinion that as the application for condonation of delay had brought out cogent reasons to explain the delay therefore a hyper technical view was not called for. CM346 2020 9. Amendments were carried out to the Civil Procedure Code through Section 16 of the Commercial Courts Act 2015. The Supreme Court in its decision in SCG contracts casehas held that these timelines are to be mandatorily adhered to. It held that the Commercial Court dealing with a commercial suit had no discretion to condone delay and could not allow the written statement to be taken on record beyond the mandatory period provided under Order VIII Rule 1 CPC. It was observed : “8. xxxxxx A perusal of these provisions would show that ordinarily a written statement is to be filed within a period of 30 days. However grace period of a further 90 days is granted which the Court may employ for reasons to be recorded in writing and payment of such costs as it deems fit to allow such written statement to come on record. What is of great importance is the fact that beyond 120 days from the date of service of summons the defendant shall forfeit the right to file the written statement and the Court shall not allow the written statement to be taken on record. This is further buttressed by the proviso in Order 8 Rule 10 also adding that the court has no further power to extend the time beyond this period of 120 days. 9. The learned Commercial Court seems to have used its inherent powers to condone delay on an application under Section 151 C.P.C. that was filed beyond 120 days as it was filed only at 4 pm on 31st October 2019 as a sequel to the arguments raised before the learned Commercial Court in regard to the delay in filing the written statements and affidavit. The Supreme Court in SG contractsrejected such an argument before it that the court could exercise its inherent powers to condone delay when the consequences of a procedural provision such as the CM346 2020 amended Order VIII Rule 1 CPC were “unjust”. The Supreme Court also frowned upon the exercise of inherent powers which could have the result of circumventing definite and mandatory provisions of Order V and Order VIII Rules 1 & 10 C.P.C. 10. Now the question is whether a condonation application had to be filed and that too within 120 days along with the written statement or whether the court without any application before it could condone the delay and receive the written statement subject to recording of its reasons and imposition of costs. This Court is of the view that since it is not for the court to furnish reasons for condoning the delay in filing the written statement it is necessary that the defendant when filing a belated written statement also submits to the court an explanation for the delay by moving an application in this regard. A written application supported by an affidavit is a must for seeking condonation of delay. 11. Since the written statement has to be filed within 120 days from the date of service of summons and a filing beyond 30 days of service of summons is a delayed filing of the written statement it is crystal clear that the application accompanying the belated filing of the written statement must necessarily have to be filed within the same time period that is 120 days. There is nothing in Order VIII C.P.C. to suggest otherwise. 12. A Coordinate Bench of this Court in Friends Motelwas dealing with a case with similar facts. There too the written statement was filed with an affidavit of admission and denial on the 117th day on receipt of summons without an application seeking condonation of delay. An application for condonation of delay was claimed to have been filed CM346 2020 on 28th August 2019 i.e. after another 19 days. It was held that the necessary application seeking condonation of delay in filing the written statement having not been filed within the period of 120 days there was no proper application filed before the court for condonation of delay and the written statement was not allowed to be taken on record. 10. To sum up when a written statement is filed after 30 days of service of summons but before the expiry of further 90 days the filing of the written statement must be accompanied with a written application setting out the reasons for the delay to allow the court to consider the reasons so given to condone delay and receive the belated written statement giving reasons for granting such leave and enabling the court to impose appropriate costs. No application can be filed seeking condonation of delay in filing the written statement after 120 days have elapsed from the date of service of summons. 11. In the instant case the written statement without the affidavit was filed on 26th February 2019. The affidavit was filed on 20th May 2019 117 days after service. But no application seeking condonation of delay was filed either on 26th February or on 20th May 2020. The petitioner plaintiff raised objections to the receiving of the belated written statement and affidavit even without a condonation application. The orders were to be pronounced at 4 pm but could not be pronounced due to administrative issues as recorded by the learned Commercial Court. Till that time the learned Commercial Court clearly could not have condoned the delay without such application. Probably faced with an inevitable situation the respondent defendant came up with the application seeking condonation of delay on 31st October 2019 that is after about 282 days CM346 2020 could have considered the reasons given by the defendants for filing written statement and affidavit belatedly. 12. The learned Commercial Court erred in observing that the written statement and affidavit had been filed before the expiry of the 120 days’ time that is available to the court to allow the filing of the written statement and use its inherent powers under Section 151 C.P.C. and to set at naught the mandatory provisions for filing of the written statement within 30 days or within the further period of 90 days allowed under Order VIII Rule 1 C.P.C. accompanied with an application seeking condonation of delay. 13. The impugned order is liable to be and is set aside. It is held that the respondents defendants have forfeited their right to file the written statement. The same is directed to be taken off the record. The parties are directed to appear before the learned Commercial Court on 1st September 2021 for the learned Commercial Court to consider the course it wishes to take under Order VIII Rule 10 C.P.C. 14. The petition alongwith pending application is accordingly disposed of. 15. Copy of this order be sent to the learned Commercial Court. 16. The judgment be uploaded on the website forthwith. JUDGE AUGUST 17 2021 ak

Assessing officer cannot ignore the mandate of Rule 28AA: Delhi High court

Writ petition, challenging the Certificate dated 30th June, 2020 issued by respondent No.1 under Section 197(1) of the Income Tax Act refusing to grant a certificate of deduction of tax at source at NIL rate, on payments to the petitioner company by its customers, was filed in case of Camions logistics solutions private limited v. Joint commissioner of income tax, Osd, Tds circle-73-1, new Delhi & Anr. [ W.P. (c) 8524/2020 & cm appl.27471 /2020]. The assessing officer cannot ignore the mandate of Rule 28AA and proceed on any other basis as the Government is bound to follow the rules and standard, they themselves had set on pain of their action being invalidated stated by the Delhi High court. Also, the tax liability depends on the estimated profits, which in turn, depends on the turnover. In financial year 2020-21, the petitioner has itself projected a rise of more than 60% in the turnover. Hon’ble Mr. Justice Manmohan and Hon’ble Mr. Justice Sanjeev Narula stated that the impugned reasons furnished by the Revenue in support of the impugned Lower Tax Deduction Certificate and note that as opposed to estimation of tax liability, the assessing officer has instead rejected the estimates provided by the assesses, on a broad and generalized reasoning. Thus, in absence of determination, as provided under the Rule, the reasons for rejections cannot be termed as valid in eyes of law. Consequently, decision making process in the present case is contrary to law. In the writ petition it has been averred that the respondent did not compute the tax liability of the petitioner which is a mandatory requirement of Rule 28AA and has arbitrarily concluded on mere guess work that there would be increase in tax liability as the petitioner’s turnover is projected to increase. The present writ petition was not maintainable as the petitioner has not exhausted the alternative efficacious remedy available under Section 264 of the Act. Moreover, the scope of judicial review of an order passed under Section 197 of the Act is limited as it is directed not against the rates prescribed in the certificate, but against the decision-making process. She submitted that it is settled law that till there is a patent illegality and/or error apparent on the face of the decision or non-application of mind by the Officer. The court held that there is non-application of mind which vitiates the impugned order and reasons. Accordingly, the impugned order and reasons and remand the matter to the Assessing Officer for fresh determination in accordance with law as expeditiously as possible preferably within three weeks was set aside.

IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.8524 2020 & CM APPL.27471 2020 CAMIONS LOGISTICS SOLUTIONS PRIVATE LIMITED ..... Petitioner Through: Mr. V.N. Jha Advocate. versus JOINT COMMISSIONER OF INCOME TAX OSD TDS CIRCLE 73 1 NEW DELHI & ANR. ...... Respondents Through: Ms. Adeeba Mujahid Advocate for Ms. Lakshmi Gurung Sr. Standing Date of Decision: 23rd December 2020 HON BLE MR. JUSTICE MANMOHAN HON BLE MR. JUSTICE SANJEEV NARULA JUDGMENT MANMOHAN Jof the Income Tax Act refusing to grant a certificate of deduction of tax at source at NIL rate on payments to the petitioner company by its customers. Petitioner also prays for a direction to the respondent No.1 to reconsider the petitioner’s application and grant Certificate under Section 197 of the Income Tax Act 1961 for deduction of tax at source at NIL rate. WPC 8524 2020 2. In the writ petition it has been averred that the respondent did not compute the tax liability of the petitioner which is a mandatory requirement of Rule 28AA and has arbitrarily concluded on mere guess work that there would be increase in tax liability as the petitioner’s turnover is projected to increase. The learned standing counsel for respondent submits that present writ petition is not maintainable as the petitioner has not exhausted the alternative efficacious remedy available under Section 264 of the Act. She relies upon the judgment of this court in the case of Sis Live Vs. Income Tax Officer 333 ITR 13 wherein the court declined to entertain a similar writ petition and directed the petitioner to file a revision petition. She further submits that the scope of judicial review of an order passed under Section 197 of the Act is limited as it is directed not against the rates prescribed in the certificate but against the decision making process. She submits that it is settled law that till there is a patent illegality and or error apparent on the face of the decision or non application of mind by the Officer this Court would not interfere with the decision arrived at by such officer. In support of her submission she relies upon the judgment dated 20th December 2019 passed by this Court in National Petroleum Construction Company Vs. Deputy Commissioner of Income Tax Circle 2(2)(2). She submits that the tax liability depends on the estimated profits which in turn depends on the turnover. She states that in financial year 2020 21 the petitioner has itself projected a rise of more than 60% in the turnover. WPC 8524 2020 6. This court in similar facts in the case of Manpowergroup Services India Pvt. Ltd Vs. Commissioner Of Income Tax 1 New Delhi & Anr. being WP(C) 5865 2020 decided on 21st December 2020 has held that since the impugned order was passed after an approval from the CIT it cannot be challenged by way of a revision petition before the CIT under Section 264 of the Act. To hold otherwise would amount to directing the petitioner to file an ‘appeal from Caesar to Caesar’. This court also held in Manpowergroup Services India Pvt. Ltd Vs. Commissioner Of Income Tax1that the assessing officer cannot ignore the mandate of Rule 28AA and proceed on any other basis as the Government is bound to follow the rules and standards they themselves had set on pain of their action being invalidated. The relevant portion of Rule 28AA of the Income Tax Rules reads as under: the Assessing Officer on an “28AA. Where application made by a person under sub rule of rule 28 is satisfied that existing and estimated tax liability of a person justifies the deduction of tax at lower rate or no deduction of tax as the case may be the Assessing Officer shall issue a certificate in accordance with the provisions of sub section of section 197 for deduction of tax at such lower rate or no deduction of tax. The existing and estimated liability referred to in sub ruleshall be determined by the Assessing Officer after taking into consideration the following:— tax payable on estimated income of the previous year relevant to the assessment year WPC 8524 2020 tax payable on the assessed or returned previous years iii) existing liability under the Income tax Act 1961 and Wealth tax Act 1957 iv) advance tax paymentof rule 28] ” emphasis supplied) Perusal of the aforesaid Rule shows that the considerations and parameters prescribed under clause are mandatory and the department is bound to take the same into consideration for the purpose of computation of existing and estimated liability referred in sub ruleread with rebate of 25% given by Ministry of Finance on account of Covid 19 crisis from the rates applicable in the preceding year 2019 20 vide Press Release dated 13th May 2020 be given to the petitioner. Respondents should ensure compliance of this order forthwith. With the aforesaid directions the writ petition is allowed and pending application(s) stand disposed of. DECEMBER 23 2020 MANMOHAN J SANJEEV NARULA J WPC 8524 2020

No person in the eyes of law can escape from rigorous imprisonment after violating Section 392 IPC: New Delhi High Court.

The default was suppose to undergo simple Imprisonment for a period of one month, this was held in the judgement passed by a single bench judge comprising  HON’BLE MR. JUSTICE  MANOJ KUMAR OHRI , in the matter SONU V. THE STATE (GOVT. OF NCT), Delhi . Dealt with the issue of robbery and uses any deadly weapon, or causes grievous hurt to any person During the process . The appeal has been preferred under Section 374(2) read with Section 383 Cr.P.C. on behalf of the appellant challenging the judgment on conviction dated 09.08.2019 and the order on sentence dated 09.08.2019 passed by the learned Additional Sessions Judge-05 (North District), whereby the appellant was convicted for the offences punishable under Section 392 IPC read with Section 397 IPC and sentenced to undergo Rigorous Imprisonment for a period of 07 years along with fine of Rs.1,000/-, in default whereof to undergo Simple Imprisonment for a period of one month. All the facts were noted by the trial court. When the investigation was completed , a charge sheet was filed and the appellant was charged under Sections 392/34 IPC read with Section 397 IPC by the Trial Court. The appellant pleaded not guilty and claimed trial. While arguing the present appeal, learned counsel for the appellant has assailed the conclusions arrived at in the impugned judgment by contending that: The knife recovered during apprehension of the appellant could not be connected with him as no fingerprints were taken . The record would show that Sunil (PW-2), the complainant, deposed in his testimony that on 01.05.2015, when he was coming back from the house of his friend, the appellant along with his three associates met him. The appellant put a knife on the waist of the complainant and demanded money. When the complainant refused, the appellant slapped him. While the associates of the appellant caught hold of the complainant, the appellant took out Rs.1,000/- from the complainant’s pocket and extended threats to him thereafter. He also mentions On 05.05.2015, he is stated to have spotted the appellant with some boys at Yograj Colony, Bus Stand wherefore he informed the police and the police personnel approached the Bus Stand along with him. He also tells the He saw appellant at the bus stand of Yograj colony.  He admitted that Yograj Colony, Bus Stand was a highly inhabited area. SI Manzoor Alam, the Investigating Officer, was examined as PW-6. He deposed that on receipt of DD No. 69B (Ex.PW3/A), he had reached the spot i.e., 33/1 Gurdwara Wali Gali, Indira Vikas Colony, Mukherjee Nagar and recorded the statement of the complainant. On 05.05.2015, the complainant had come to the Police Station Mukherjee Nagar and informed him that the appellant was present with his associates at the Bus Stand of Yograj Colony. In the present case, the Trial Court has brushed aside the evidence of defence witnesses as one coming from interested witnesses. In view of the inconsistency noted above in the events leading to the appellant’s arrest, it is equally probable that the appellant was arrested from his house and not in the manner stated by the prosecution. The court perused the facts and argument’s  presented , it was of the opinion that – “The Trial Court incorrectly reached the conclusion that the appellant had taken contradictory defences in the trial. In opining so, the Trial Court noted that while cross examining the complainant, no suggestion was given on behalf of the appellant that the altercation with Nitin had taken place in a Gulli Danda match. The Trial Court failed to appreciate that the suggestion of an altercation with Nitin was duly given and only the word ‘Gulli Danda match’ was not mentioned, which was clarified by the appellant in his statement recorded under Section 313 Cr.P.C. Consequently, the impugned judgment on conviction and order on sentence are set aside. The appeal is allowed and the appellant is acquitted of the charges framed against him. He is directed to be set free” Dated on 6th September 2021. Click here for Judgment                

IN THE HIGH COURT OF DELHI AT NEW DELHI IN THE MATTER OF: CRL.A. 633 2020 Reserved on: Date of Decision: 06.09.2021 13.08.2021 ..... Appellant Through: Mr. S.S. Ahluwalia Advocate DHCLSC) alongwith Mr. Mohit Bangwal Advocate. THE STATEDELHI Respondent Through: Mr. Sanjeev Sabharwal APP for State with SI Deepak P.S. Mukherjee Nagar. HON BLE MR. JUSTICE MANOJ KUMAR OHRI MANOJ KUMAR OHRI J. The present appeal has been preferred under Section 374(2) read with Section 383 Cr.P.C. on behalf of the appellant challenging the judgment on conviction dated 09.08.2019 and the order on sentence dated 09.08.2019 passed by the learned Additional Sessions Judge 05 North District) Rohini Courts Delhi in SC No. 58477 2016 arising out of FIR No. 605 2015 registered under Sections 392 394 34 IPC at Police Station Mukherjee Nagar Delhi whereby the appellant was convicted for the offences punishable under Section 392 IPC read with Section 397 IPC and sentenced to undergo Rigorous Imprisonment for a period of 07 years along with fine of Rs.1 000 in default whereof to undergo Simple Imprisonment for a period of one month. CRL.A. 633 2020 For the sake of felicity the facts of the case as noted by the Trial Court are extracted hereunder: “1. Prosecution case in brief is that on 01.05.2015 a PCR call was received in Police Station Mukherjee Nagar vide DD No. 69 B. After receipt of call SI Manzoor Alam along with staff reached at H. No. 33 1 Indira Vikas Colony Delhi where the complainant Sunil got recorded his statement that he was going towards his home after meeting his friend. When he reached in front of H. No. 22 7 Indira Vikas Colony Delhi suddenly one Sonu S o Nanak Chand who earlier used to reside in Munshi Ram Dairy came along with three persons and pointed a knife at his waist and demanded money. When the complainant objected this Sonu slapped him. His three accomplices caught hold of the complainant and Sonu took out Rs.1000 from his pocket and said that if the complainant told anything to anyone he would kill him. On the complaint of the complainant the above case was registered and investigation was taken up. 2. During investigation the accused was searched at H. No. 118 Jhuggi Munshi Ram Dairy Delhi but he was not found there. It was transpired that the accused and his family had vacated the house and were living somewhere else. The accused and his accomplices were searched but could not be 3. On 05.05.2015 the complainant came to PS and stated that he had seen accused Sonu along with some of his friends sitting at Yograj Colony Bus Stand. The said facts were brought into the notice of SHO who prepared a raiding team to arrest the accused. A raid was conducted on the instance of complainant and accused Sonu was arrested in the case. During the search of accused one knife was also recovered and the same was identified by the complainant. The recovered knife was seized vide seizure memo Ex.PW2 C and deposited in Malkhana. During his interrogation accused CRL.A. 633 2020 Sonu stated that he along with his three accomplices robbed the complainant. He further stated that he did not know the address of the accomplices namely Raju Monu and Sunil but he could get arrest the accomplices. One day PC remand of the accused was obtained and search of other co accused was made but the accused Sonu did not cooperate in the investigation and the co accused persons could not be arrested. After one day PC remand accused was sent to JC”. After completion of investigation a charge sheet was filed and the appellant was charged under Sections 392 34 IPC read with Section 397 IPC by the Trial Court. The appellant pleaded not guilty and claimed 4. While arguing the present appeal learned counsel for the appellant has assailed the conclusions arrived at in the impugned judgment by contending that: there are contradictions in proving of the place of incident by the prosecution as to whether it occurred near 22 7 Indira Vikas Colony or at 33 1 Gurdwara Wali Gali no public witness present at the time of arrest of the appellant was made to join the proceedings the knife recovered during apprehension of the appellant could not be connected with him as no fingerprints were taken and the Trial Court did not consider the testimony of DW 1 Raju Paswan @ Pannu Chai Wala who had stated that he had seen a quarrel take place between the appellant and one boy whom he could not name but no incident of robbery or snatching had taken place in that quarrel. Learned APP for the State on the other hand has supported the impugned judgment. He has submitted that the appellant was already known to the complainant. It is also submitted that besides the present case the appellant has other previous involvements. CRL.A. 633 2020 I have heard learned counsels for the parties and gone through the Trial Court Record. A perusal of the record would show that Sunil the complainant deposed in his testimony that on 01.05.2015 when he was coming back from the house of his friend the appellant along with his three associates met him. The appellant put a knife on the waist of the complainant and demanded money. When the complainant refused the appellant slapped him. While the associates of the appellant caught hold of the complainant the appellant took out Rs.1 000 from the complainant’s pocket and extended threats to him thereafter. The complainant further deposed that the site plan was prepared at his instance. On 05.05.2015 he is stated to have spotted the appellant with some boys at Yograj Colony Bus Stand wherefore he informed the police and the police personnel approached the Bus Stand along with him. On seeing the police party the appellant is stated to have tried fleeing away but he was apprehended after a chase. The other associates of the appellant however managed to escape. In the appellant’s personal search a knife was recovered and it was identified by the complainant as the same knife which was used at the time of the incident. The complainant has identified his signatures on the sketch of the knife Ex.PW2 B) as well as on the seizure memo vide which recovery of the knife was effected. On being confronted with the site plan during his cross examination the complainant stated that he was unable to understand it and that the police officials had not asked him anything regarding preparation of the site plan. He stated that on 05.05.2015 at about 4:00 p.m. he saw the appellant at the Bus Stand of Yograj Colony. He CRL.A. 633 2020 admitted that Yograj Colony Bus Stand was a highly inhabited area. He admitted that he was aware of the address of the appellant who was an erstwhile classmate and that he had told the Investigating Officer about it. He denied the suggestion that he had falsely implicated the appellant at the behest of Nitin with whom the appellant had a quarrel. He also denied that he had an altercation with the appellant on the issue of driving motorcycle when the appellant was living at Village Gopalpur Delhi. He stated that the distance between Yograj Colony and Police Station Mukherjee Nagar could be covered on foot in 25 30 minutes. SI Manzoor Alam the Investigating Officer was examined as PW 6. He deposed that on receipt of DD No. 69B he had reached the spot i.e. 33 1 Gurdwara Wali Gali Indira Vikas Colony Mukherjee Nagar and recorded the statement of the complainant. On 05.05.2015 the complainant had come to the Police Station Mukherjee Nagar and informed him that the appellant was present with his associates at the Bus Stand of Yograj Colony. He along with Ct. Madan Ct. Narender and the complainant had gone to the Bus Stand Yograj Colony. Some passers by were requested to join the investigation but they refused. On the identification of the complainant the appellant was apprehended after a chase and from the right side pocket of his jeans pant a knife was recovered. In cross examination he stated that on 05.05.2015 complainant had come to the Police Station at about 7:00 p.m. and after about 30 minutes from his arrival they had left the Police Station. HC Madan who had joined the proceedings with the Investigating Officer on 05.05.2015 was examined as PW 4. His testimony is cumulative to the testimony of SI Manzoor Alam. CRL.A. 633 2020 10. Ct. Rahul deposed that he along with the Investigating Officer had gone to search for the appellant in Munshi Ram Colony Delhi but there they came to know that the appellant had already vacated his Jhuggi. In cross examination he stated that when he reached the spot on the day of the incident there were many persons present. He stated that there was a five minute walking distance between the Police Station and the spot of incident. 11. The statement of the appellant was recorded under Section 313 Cr.P.C. wherein he stated that on the day of the incident he had an altercation with the complainant who was an employee of one Nitin a supplier of water gallons and the testimony of the Investigating Officer mentions the place of incident as 33 1 Gurudwara Wali Gali Indira Vikas Colony Mukherjee Nagar however on the other hand the Rukka and the site plan mention the place of incident as “mark A” at 22 7 Indira Vikas Colony. In the site plan no mention has been made of 33 1 Gurudwara Wali Gali Indira Vikas Colony. In fact HC Madan has deposed that the appellant had pointed out the place of incident in front of 22 7 Indira Vikas Colony. Making matters worse the complainant had stated that the site plan was not prepared at his instance while SI Manzoor Alam deposed that the site plan was prepared at the instance of the complainant. 15. There also appears to be greater inconsistency on the point of arrest of the appellant. While the complainant deposed that on 05.05.2015 after seeing the appellant at Yograj Colony Bus Stand at about 4:00 p.m. he had reached the Police Station in an auto rickshaw and the police personnel immediately accompanied him to the Bus Stand the Investigating Officer testified that the complainant had reached Police Station Mukherjee Nagar at about 7:00 p.m. on the said date. He further stated that they had left the Police Station after 30 minutes from the arrival of the complainant. He also stated that the distance between CRL.A. 633 2020 the Yograj Colony and the Police Station was about 6 7 kms and it took them 10 15 minutes to reach. The aforesaid two testimonies are in clear contrast to each other and when looked at in light of the testimonies given by the appellant and his brother that the appellant was arrested from his house it seems highly improbable that the appellant continued to remain at the Bus Stand for more than 3 and ½ hours or that it took the complainant about 3 hours to reach the Police Station. In this regard it may also be noted that the Supreme Court in Dudh Nath Pandey v. State of Uttar Pradesh reported as 2 SCC 166 opined that Courts should avoid the error of attributing motives to defence witnesses merely because they are examined by the defence. Defence witnesses are entitled to equal treatment with those of the prosecution and Courts ought to overcome their traditional instinctive disbelief in defence witnesses. To a similar extent in State of U.P. v. Babu Ram reported as 4 SCC 515 the Supreme Court has observed as under: “23. Depositions of witnesses whether they are examined on the prosecution side or defence side or as court witnesses are oral evidence in the case and hence the scrutiny thereof shall be without any predilection or bias. No witness is entitled to get better treatment merely because he was examined as a prosecution witness or even as a court witness. It is judicial scrutiny which is warranted in respect of the depositions of all witnesses for which different yardsticks cannot be prescribed as for those different categories of witnesses.” 17. Later in Munshi Prasad and Others v. State of Bihar reported as 2002) 1 SCC 351 the Supreme Court made the following observation on the appreciation of evidence of defence witnesses: “3. …we wish to clarify that the evidence tendered by the defence witnesses cannot always be termed to be a tainted CRL.A. 633 2020 one by reason of the factum of the witnesses being examined by the defence. The defence witnesses are entitled to equal respect and treatment as that of the prosecution. The issue of credibility and trustworthiness ought also to be attributed to the defence witnesses on a par with that of the prosecution a lapse on the part of the defence witnesses cannot be differentiated and be treated differently than that of the prosecutors witnesses.” In the present case the Trial Court has brushed aside the evidence of defence witnesses as one coming from interested witnesses. In view of the inconsistency noted above in the events leading to the appellant’s arrest it is equally probable that the appellant was arrested from his house and not in the manner stated by the prosecution. It is an admitted fact that both the complainant and the appellant were known to each other being erstwhile classmates. The appellant from the inception has taken the consistent defence of false implication at the instance of one Nitin and also on account of previous quarrel between him and the complainant. The Trial Court incorrectly reached the conclusion that the appellant had taken contradictory defences in the trial. In opining so the Trial Court noted that while cross examining the complainant no suggestion was given on behalf of the appellant that the altercation with Nitin had taken place in a Gulli Danda match. The Trial Court failed to appreciate that the suggestion of an altercation with Nitin was duly given and only the word ‘Gulli Danda match’ was not mentioned which was clarified by the appellant in his statement recorded under Section 313 Cr.P.C. In light of the above analysis it was imperative for the prosecution to cite independent public witnesses but none was produced. It is also worthwhile to note that evidence in the present case is replete with CRL.A. 633 2020 statements that public persons were present at the time of incident and also at the time of arrest. However for both occasions no public witness has been cited. In fact the first information about the quarrel was given by a third person from mobile number 9213970007 which resulted in recording of DD No. 69B. In the entire evidence there is not even a whisper of any efforts having been made to trace the caller. He could have been cited as an independent witness. In the facts of the case the deposition of such independent witness would have lent a much needed corroboration to the prosecution case and assured fairness in the conduct of the Investigating Officer. The non examination of any independent witness has seriously impaired the credibility of the prosecution case. 21. On a conspectus of the entire evidence brought on record and as analyzed hereinabove this Court is of the opinion that the prosecution has failed to prove its case against the appellant beyond reasonable doubt. 22. Consequently the impugned judgment on conviction and order on sentence are set aside. The appeal is allowed and the appellant is acquitted of the charges framed against him. He is directed to be set free unless required in any other case. 23. A copy of this judgment be communicated electronically to the Trial Court as well as to the concerned Jail Superintendent forthwith. SEPTEMBER 6 2021 MANOJ KUMAR OHRI) JUDGE CRL.A. 633 2020

The Court is constrained to hold that the petitioners are not found entitled to any order from the Court for regularisation of their respective services: Gauhati High Court

The implications of the appointment being temporary, casual, or contractual, and the fact that such a person cannot rely on the notion of legitimate expectation to be confirmed in the position when an appointment to the job could only be made after a thorough selection method. The Court is compelled to rule that the petitioners are not entitled to any order from the Court requiring them to regularise their respective services. The judgment was passed by The High Court of Sikkim in the case of Rajkumar Kachari and 2 Ors. V. The State of Assam And 4 Ors [WP(C)/956/2016] by a Single Bench consisting of Hon’ble Shri Justice Kalyan Rai Surana. The case of the petitioner is that the issue regarding non-regularization of the petitioners to the post of the driver in the Assam Tribal Development Authority (respondent) is involved. Therefore, as the case is ready as regards service and the respondent has filed their affidavit-in-opposition, at the insistence of the learned counsel for all sides, the matter has been heard in the admission stage. The Learned Counsel for the petitioners has submitted that previously there was no vehicle allotted to the ATDA. However, subsequently, the ATDA had been given vehicles for various schemes and vehicles were allotted to various functionaries of the ATDA. Therefore, the petitioners were engaged in service as drivers. It is submitted that from time to time, communications were exchanged for sanctioning the creation of the posts of drivers and to regularise the service of the petitioners. The learned senior counsel for the petitioners has further submitted that the petitioners are also entitled to monthly salary, after taking into account the due increments along with other financial benefits. The Learned Counsel for the respondent has opposed this application by submitting that the Government had not accorded sanction for creation of the posts of drivers, as such, the Government cannot be burdened with the liability to pay monthly salary to the petitioners. The learned departmental standing counsel appearing for the respondent referred to the affidavit-in-opposition filed by the respondent and he had made his submissions thereby supporting the claim of the petitioners. It is submitted that the respondent has repeatedly sent proposals before the appropriate and competent authority of the State for according sanction for creation of posts of drivers and to regularise the service of the petitioners.

Page No.# 1 12 THE GAUHATI HIGH COURT HIGH COURT OF ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C) 956 2016 RAJKUMAR KACHARI and 2 ORS S O LT. HARESWAR KACHARI R O HENGRABARI NABANAGAR P.O. HENGRABARI P.S. DISPUR DIST. KAMRUP M ASSAM 2: SRI BIREN RABHA S O LT. TULSI RAM RABHA R O JAPORIGOGH KRISHNANAGAR P.O. JAPORIGOGH P.S. DISPUR DIST. KAMRUP M 3: SRI RAM CHARAN RABHA S O LT. GANESH RABHA R O NICHINPUR P.O. BIRPARA P.S. BOKO DIST. KAMRUP THE STATE OF ASSAM AND 4 ORS REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM WPT and BC DEPARTMENT DISPUR GUWAHATI 6 2:THE PRINCIPAL SECRETARY FINANCE DEPARTMENT GOVT. OF ASSAM GUWAHATI 6 3:THE ASSAM TRIBAL DEVELOPMENT AUTHORITY REP. BY ITS MEMBER SECRETARY R.P. ROAD GUWAHATI 6 4:THE CHIEF EXECUTIVE OFFICER ASSAM TRIBAL DEVELOPMENT AUTHOIRTY R.P. ROAD GUWAHATI 6 Page No.# 2 12 WPT and BC DEPARTMENT GUWAHATI6 Advocate for the Petitioner : MR.F U BORBHUIYA Advocate for the Respondent : GA ASSAM Linked Case : WP(C) 2321 2018 RAJKUMAR KACHARI AND 3 ORS S O LT HARESWAR KACHARI R O HENGRABARI NABANAGAR P.O. HENGRABARI P.S. DISPUR DIST KAMRUP1216 2016 FAKAR UDDIN AHMED S O LT. ABDUR RAHMAN VILL. SUNDARBAN NAGAR NABARATNA PATH Page No.# 4 12 P.O. KAHILIPARA P.S. HATIGAON DIST. KAMRUP M GHY 19 THE STATE OF ASSAM AND 4 ORS REP.BY THE COMMISSIONER and SECY. TO THE GOVT. OF ASSAM WPT and BC DEPTT GHY 6 2:THE PRINCIPAL SECRETARY GOVT. OF ASSAM GHY 6 3:THE ASSAM TRIBAL DEVELOPMENT AUTHORITY REP. BY ITS MEMBER SECY R.P. ROAD GHY 6 4:THE CHIEF EXECUTIVE OFFICER ASSAM TRIBAL DEVELOPMENT AUTHORITY R.P. ROAD GHY 6 5:THE DIRECTOR WPT and BC DEPTT GHY 6 Advocate for : MR.F U BORBHUIYA Advocate for : appearing for THE STATE OF ASSAM AND 4 ORS B E F O R E HON’BLE MR. JUSTICE KALYAN RAI SURANA For the petitioners: Mr. H.R.A Choudhury Senior Advocate Mr. F.U. Borbhuiya. Mr. R.A. Choudhury Ms. S. Das Advocates For respondent no. 1 and 5: Mr. G. Bordoloi Govt. Advocate For respondent no. 2: Mr. B. Gogoi SC. Finance Dept Page No.# 5 12 For respondent no.3& 4: Mr. R.K.D. Choudhury R. Dhar S.C Date of hearing: 09.03.2021 Date of judgment: 09.06.2021 JUDGMENT AND ORDER Heard Mr. H.R.A. Choudhury learned senior counsel assisted by Mr. F.U. Borbhuiya learned counsel for the petitioners. Also heard Mr. G. Bordoloi learned Govt. Advocate for respondent nos.1 and 5 Mr. B. Gogoi learned standing counsel for the Finance Department and Mr. R.K.D. Choudhury along with Mr. R. Dhar learned standing counsel for the WPT&BC Department respondent nos. 3and 4 2) In the present case is hand the issue regarding non regularization of the petitioners to the post of driver in the Assam Tribal Development Authorityis involved. Therefore as the case is ready as regards service and the respondent nos. 3 and 4 have filed their affidavit in opposition at the insistence of the learned counsel for all sides the matter has been heard in the ‘admission’ 3) The grievance of the three petitioners in WP(C) 956 2016 and the sole petitioners in WP(C) 1216 2016 is that WPT & BC Department had arbitrarily rejected the proposals dated 14.07.1994 05.04.2011 and 20.04.2015 submitted by the ATDA for creation of posts of driver to accommodate the petitioners by regularising their services. In connection with both the said writ petitions a common order dated 03.11.2017 was passedby this Court The relevant part of the said order is quoted below: “In view of such provisions of Section 12 of the Act the reasons stated in order dated 21.12.2015 that the posts of Driver had not been approved is inadequate to reject the claim of the petitioners for regularization of their services In view of above it is directed that the WP(T) & BC Department shall take a decision as to whether the decision of the authority taken u s 12 requiring the four posts of driver in to be approved or not. In doing so the Government in the WP(T Page No.# 6 12 BC Department shall give its own reason either accepting or rejecting the case for approval. If the WP(T) & BC Department is of the view that the concurrence of the Finance Department or any other department is required to be obtained the same being an inter departmental requirement for a correspondence the Department shall do the needful to arrive at its decision List the matter again on 05.01.2018 to enable the WP(T) & BC Department to take the appropriate decision.” 4) Pursuant to the aforesaid order the WPT & BC Department by a speaking order bearing No.TAB BC 224 2011 219 dated 03.01.2018 rejected the proposal for regularization on the ground that the appointments were sought to be made in the non sanctioned and non existing post and without prior concurrence or approval of the State Govt. The three petitioners in W.P.(C) 956 2016 and the sole petitioner in W.P.(C) 1216 2016 have now jointly filed WP(C) 2321 2018 in order to assail the herein before referred order dated 03.01.2018. 5) The learned senior counsel for the petitioners has submitted that in the present case in hand previously there was no vehicle allotted to the ATDA. However subsequently the ATDA had been given vehicles for various schemes and vehicles were allotted to various functionaries of the ATDA. Therefore the petitioners were engaged in service as drivers. It is submitted that from time to time communications were exchanged for sanctioning the creation of the posts of drivers and to regularise the service of the petitioners and in this regard reference is made to communications dated 14.07.1994 30.01.2001 26.06.2001 26.06.2002 03.06.2008 08.01.2013 and 08.04.2015. It is submitted that in this case instead of creating the posts of drivers the ATDA had extracted service from the petitioners. Accordingly by placing strong reliance on the case of Nihal Singh Vs. State of Punjab & Ors. 14 SCC 65 it has been submitted that as the petitioners are rendering service this is a fit case for issuing a direction to the respondents to regularise the service of the petitioners with retrospective effect by providing ex post facto sanction of the posts of drivers in the establishment of the respondent no.3 i.e. ATDA in terms of communications dated 14.07.1994 30.01.2001 26.06.2001 26.06.2002 03.06.2008 08.01.2013 and Page No.# 7 12 08.04.2015. The learned senior counsel for the petitioners has further submitted that the petitioners are also entitled to monthly salary from the month of December 2017 onwards till date after taking into account the due increments along with other financial benefits 6) While the learned State counsel appearing for the respondent no.1 and the learned standing counsel for the respondent no. 2 have opposed this application by submitting that the Government had not accorded sanction for creation of the posts of drivers as such the Government cannot be burdened with the liability to pay monthly salary to the petitioners. The learned departmental standing counsel appearing for respondent nos 3 and 4 has referred to the affidavit in opposition filed by the respondent nos. 3 and 4 and he had made his submissions thereby supporting the claim of the petitioners. It is submitted that the respondent nos. 3 and 4 have repeatedly send proposals before the appropriate and competent authority of the State for according sanction for creation of posts of drivers and to regularise the service of the petitioners. 7) The core issue for consideration of the Court is whether the petitioners who claim to be initially appointed by respondent no.4 in the pay scale of Rs.420 to 750 per month are entitled for a direction from the Court upon the respondents to regularise the service of the petitioners with consequential benefits like pension etc 8) It is seen that in Section 12 of the Assam Tribal Development Authority Act 1983 it is provided as follows: “12. The Authority may have such staff as may be decided by the Authority with the approval of the Government.” 9) Therefore there is no doubt that subject to approval of the State Government the respondent no.3 had the power and authority to have such staff as may be decided by the authority. Therefore according to the opinion of the Court the provisions of Section 12 of the Assam Tribal Development Authority Act 1983 envisages prior approval of the Government regarding creation of posts or appointment of staff before appointments are Page No.# 8 12 actually made. The Court is unable to accept that the intent and purport of Section 12 is to enable the respondent nos. 3 and 4 to first make appointment and then to seek post facto approval from the Government. On a perusal of the documents annexed to the writ petition there is absence of materials to show that the State Government had accorded sanction for creation of the post of ‘driver’ in the establishment of the respondent no.3 i.e. ATDA. In the herein before referred order no. TAD BC 224 2011 219 dated 03.01.2018 issued by Secretary to the Govt. of Assam WPT & BC Department it has been specifically mentioned that the ATDA had appointed the following petitioners in W.P.(C) 2321 18 namely Biren Rabha Ram Charan Rabha petitioner no.3) and Md. Fakaruddinover and above the posts created for the office of the ATDA. There is no material on record to controvert the said position 10) Moreover from the documents annexed to the writ petition it is seen that there is nothing on record to show that the respondent nos. 3 and 4 had conducted any recruitment drive through transparent pubic process inviting applications from the public for appointment to the posts of driver. Hence the only conclusion that can be drawn by the Court is that the petitioners were not regularly selected and appointed to the posts of driver in the ATDA. Nonetheless there is no dispute at the Bar that the petitioners have been rendering their services in ATDA as driver since the date of their respective appointment till date and that the ATDA had extended to the petitioners the benefit of regular pay scale Moreover as it is seen that the petitioners have not been selected and appointed in sanctioned and vacant posts the petitioners cannot be said to have the status of permanent employee in the establishment of respondent no.3 i.e. ATDA. Thus the petitioners may be said to have temporary casual or contractual employment for all intents and purpose but not permanent employment in the absence of appointment to a sanctioned and vacant posts of 11) In case of Nihal Singhthe appellants therein were selected and appointed in exercise of power under Section 17 of the Police Act 1861 as such the Page No.# 9 12 appointments were held to be in consonance with the statutory provisions because the decision to resort to the procedure adopted was taken at the highest level of the State by conscious choice. The appointments were made pursuant to a sanctioned selection process The appointments were found to be necessitated owing to need to obtain services of persons who had the experience and training in handling extraordinary situation of dealing with armed miscreants. After selection the selected persons were given training in use of arms. It is further seen that on consideration that in the said case the financial implication was not on the State but creation of new posts was found to create financial burden on various banks who were utilizing services of the Special Police Officers and under those circumstances the Supreme Court of India had issued direction to the State of Punjab to regularise the service of the appellants by creating necessary posts and it was ordered that pursuant to regularisation the appellants would be entitled to all the benefits of services attached to the posts which are similar in nature already in cadre of the police service of the State 12) Fact situation similar to the case of Nihal Singhis not found to exist in the present case in hand. In this case there was no selection process as such the petitioners appear to be chosen arbitrarily in exclusion to other eligible persons. The appointment was not sanctioned by law as no post of driver was sanctioned and created pursuant to the orders of the Government. In the absence of sanctioned and retained posts the Court is of the considered opinion that the State Government cannot be compelled to absorb the petitioners into the service of the State by paying salary and other emoluments Thus the ratio of the case of Nihal Singhis not found to help the petitioners in any manner. Accordingly the order no. TAD BC 224 2011 219 dated 03.01.2018 impugned in W.P.(C) 2321 2018 does not warrant any interference by the Court 13) On a query by the Court it has been informed that the respondent no.3 operates on the basis of grants provided by the State Government and that such grant is inclusive of money against salary payable to employees working in specific sanctioned and retained posts. Thus when the Government has not created posts of drivers for the establishment of ATDA if any order is passed for regularising the services of the petitioners there would be additional financial implication on the State Government. Page No.# 10 12 14) In light of observations made in paragraph 47 of the case of Secretary State of Karnataka Vs. Umadevi & Ors. 4 SCC 1it can be culled out that when a person enters a temporary employment or gets engagement as a contractual casual worker and the engagement is not based on a proper selection as recognized by the relevant Rules or procedure he is aware of the consequences of the appointment being temporary casual or contractual in nature and that such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection. In light of the law laid down by the Supreme Court of India in the case of Umadevithe Court is constrained to hold that the petitioners are not found entitled to any order from the Court for regularisation of their respective services 15) Accordingly as the petitioners have rendered their services to the respondent no.3 authority since their respective dates of joining as drivers as already indicated herein before by treating the petitioners as temporary casual or contractual employment for the purpose of this order this appears to be a fit case to apply the principles laid down by the Division Bench of this Court in the case of State of Assam Vs. Upen Das 5 NEJ 553 this Court had observed as follows in para 22 and 23: “22. It is however heartening to learn that the State Government has agreed not to terminate the Muster Roll Work Charged and similarly placed employees working since last more than 10 yearstill their normal retirement except on disciplinary ground or on ground of criminal offences. The State Government has also agreed to enlist such employees in Health and Accidental and Death Insurance Scheme which will be prepared in consultation with the State Cabinet. We appreciate this positive stand of the State Government taken as welfare measures for the betterment and security of the employees in question. We accordingly direct the State Government to implement the measures without further delay. Besides this we in the light of decision of the Supreme Court in State of Punjab v. Jagjit Singh 1 SCC 148 also direct the State Government to pay minimum of the pay scale to Muster Roll workers Work Charged workers and similarly placed employees working since Page No.# 11 12 last more than 10 yearswith effect from 1.8.2017. 23. For these reasons we are of the view that in the fact situation of the case Muster Roll workers Work Charged workers and Casual workers are not entitled for regularization of their services with consequential benefits such as pension etc. We accordingly subject to our direction in paragraph 22 of the judgment allow the appeal and set aside the impugned judgment and order dated 20.12.2013 passed by the learned Single Judge.” 16) In the present case in hand the petitioners are not found entitled to regularization of their services with consequential benefits such as pension etc. Accordingly the prayer for regularization is refused. However in order to ensure welfare measures to the petitioners who have rendered long years of service to the respondent no.3 i.e. Assam Tribal Development Authority in a non sanctioned post the Court by following the decision rendered in the herein before referred case of Upen Dasis inclined to direct the State Government to implement the welfare schemes by enlisting the petitioners in Health and Accidental and Death Insurance Scheme. Besides in the present case in hand. Moreover as the petitioners are presently being paid their salary as per their pay scale and considering that that the letter of appointment of thepetitioner no.1 was issued on 27.09.1985(ii) petitioner no.2 was issued on 12.02.1986 petitioner no.3 was issued on 27.02.1989 andpetitioner no.4 was issued on 05.01.1996 and since then they have rendered service in a non sanctioned post the Assam Tribal Development Authoritybeing the authority functioning under the Welfare of Plain Tribes and Backward Classes Department are directed to continue to pay to the petitioners their salary as per their last pay scale. In the event the claim made in W.P C) 2321 18 that the petitioners have not been paid their salary since the month of December 2017 is true the respondents shall release the arrear salary as per last pay scale drawn within a period of 4months from the date of service of a certified copy of this order upon the respondent no.4. The current salary shall however be paid as and when due 17) Before parting with the records it is made clear that this order shall not stand as an impediment for the respondents to take lawful steps to regularize the services of the petitioners if so permitted in accordance with the law holding the field. Page No.# 12 12 18) The petitioners are not found entitled for quashing of the order dated 03.01.2018 impugned in W.P.(C) 2321 18 or to any order from the Court for regularisation of their respective services as such the writ petition stands partly allowed to the extent as indicated herein below: a. The respondents would implementthe welfare schemes by enlisting the petitioners in Health and Accidental and Death Insurance Scheme as envisaged in the herein before referred case of Upen Das2321 18 that the petitioners have not been paid their salary since the month of December 2017 then the respondents shall release the arrear salary as per last pay scale drawn within a period of 4months from the date of service of a certified copy of this order upon the respondent no.4. c. The current salary shall be paid as and when due d. Save and except the reliefs as indicated above all other prayers made in these three writ petitions are refused 19) These writ petitions are disposed of JUDGE

State does not fall within the definition of “person under erroneous belief” as per section 401(5) Cr.P.C: High Court of Delhi

Section 401(5) Cr.P.C provides that when an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly. The word person has not been defined in the Cr. P.C but has been defined in Section 11 of the Indian Penal Code. Section 401(5) Cr. P.C cannot apply to the State. It cannot be stated/argued that the State was under the erroneous belief that no appeal would lie from the order passed by the Sessions Court. This was held in STATE, GNCT DELHI v. YOGESH KOCHAR @ BABLOO. [CRL.REV.P. 12/2018] in the High Court of Delhi by a single bench consisting of JUSTICE SUBRAMONIUM PRASAD. Facts are that the prosecution alleges the accused/respondent herein beat up the complainant, one Sandeep Dutta, and caused grievous hurt to him and had also caused damage to his Maruti car. Fir was registered for offenses under Sections 325 & 427 IPC. The petition under Section 397/401 Cr. P.C is directed against the order passed by the Additional Session Judge/acquitting the accused herein and setting aside the judgment of conviction. The court questioned the maintainability of the revision petition filed by the prosecutor on the direction of the State. The court made reference to the judgment of Apex court in Subhash Chand v. State (Delhi Admn.), wherein it was observed that “Section 378(1)(b) uses the words “in any case” but leaves out orders of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence from the control of the State Government. Therefore, in all other cases where orders of acquittal are passed appeals can be filed by the Public Prosecutor as directed by the State Government to the High Court”. The court also made reference to para 19 of the  Apex court decision in the case of  Subhash Chand (Supra)., wherein it is stated that “Neither the District Magistrate nor the State Government can appeal against that order of acquittal. The idea appears to be to accord quietus to the case in such a situation”. Considering the facts of the case and the legal precedents, the court observed that the judgment of the Sessions Court and the grounds raised in the revision petition does not persuade the Court to call for the records of this case for further examination. The Sessions Court after looking into the material on record has acquitted the respondent herein and as stated earlier it cannot be said that the findings and reasoning of the Appellate Court are perverse. Thus dismissing the revision petition.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 01st JUNE 2021 CRL.REV.P. 12 2018 & CRL.M.A. 174 2018STATE GNCT DELHI Petitioner Through Ms. Meenakshi Chauhan APP YOGESH KOCHAR @ BABLOO Respondent Through Mr. Abhishek Kumar Advocate HON BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD J. The present petition under Section 397 401 Cr.P.C is directed against the order dated 30.08.2017 passed by the Additional Session Judge Special Judge (West) Tis Hazari Courts Delhi in Criminal Appeal No. 67 2016 acquitting the accused respondent herein and setting aside the judgment of conviction dated 05.08.2016 and order on sentence dated 02.09.2016 passed by the learned Metropolitan Magistrate 07 Tis Hazari Courts Delhi. The facts in brief leading to the instant revision petition are as under: It is the case of the prosecution that on 28.11.2006 at about 7.15 PM the accused respondent herein beat up the complainant one Sandeep Dutta and caused grievous hurt to him and had also caused damage to his Maruti car having registration No.HR 26H 4333. It is stated that the incident took place near house No. BG 6 344 Paschim Vihar. On the basis of the complaint an FIR was lodged being FIR CRL.REV.P. 12 2018 No.73 2007 dated 24.01.2007 registered at Police Station Paschim Vihar for offences under Sections 325 & 427 IPC. After completion investigation sheet was accused respondent herein. Charges under Sections 325 427 IPC were framed against the accused respondent herein to which the respondent pleaded not guilty and claimed trial. In order to prove their case the prosecution examined 4 witnesses. The learned Trial Court found that the injured witness i.e. PW 1 was reliable and convicted the respondent herein for an offence under Section 325 IPC. 02.09.2016 the learned Metropolitan Magistrate sentenced the respondent herein to undergo rigorous imprisonment for six months and to pay fine of Rs.20 000 in default of payment of fine the respondent was directed to undergo simple imprisonment for 15 days. The accused respondent herein was granted benefit under Section 389(3) Cr.P.C on furnishing a personal bond in the sum of Rs.10 000 along with one surety of the like c) Against the said order the accused respondent herein filed an appeal before the Sessions Court. The learned Additional Session Judge held that no effort has been made on the part of the prosecution to contact independent public witnesses to join the investigation. It was found that notice under Section 160 Cr.P.C. was not served on any of the public persons. The learned Additional Session Judge held that there is nothing on record to show that after receiving the Notice under Section 160 Cr.P.C the public witnesses have refused to join CRL.REV.P. 12 2018 investigation and the names and addresses of the public witnesses have not been mentioned by the Investigating Officer. The learned Additional Session Judge relied on the judgment of the Supreme Court in Pawan Kumar v. The Delhi Administration 1989 CRI.L.J. 127 to hold that when there is no effort made by the Investigating Officer to contact the witnesses even though a number of them were present and no possible explanation is given by the prosecution for not calling independent witnesses serious doubts are raised on the case of the prosecution. The learned Additional Sessions Judge also found that the date of incident is 28.11.2006 and FIR in the matter has been lodged on 24.01.2007 i.e. after about two months from the date of the incident. He also found that even though the MLC records that the complainant suffered grievous injuries it is not stated that the complainant was unfit to give statement. No reason has been given by the prosecution as to why the IO had not recorded the statement of the injured complainant on the same date. The learned Additional Session Judge also noted that the weapon of offence used in the crime was not produced in the Court. He also noted that the site plan was prepared at the instance of the complainant but the signatures of the complainant were not found on the site plan. The learned Additional Session Judge also found that the doctor who injured complainant was not examined by to prove the MLC and injuries sustained by complainant injured. The learned Additional Session Judge allowed the appeal and acquitted the respondent herein. d) Against the said judgment of the Sessions Court the instant CRL.REV.P. 12 2018 revision petition is filed. Heard Ms. Meenakshi Chauhan learned APP for the State and Mr. Abhishek Kumar learned counsel for the respondent and perused the In the opinion of this Court the instant revision petition filed by the material on record. State is not maintainable. Sections 378(1) and 378(3) Cr.P.C were brought in the Cr.P.C wide Code of Criminal Procedure Act 2005. Section 378(1)(b) Cr.P.C. provides for an appeal filed by the State Government from an original or appellate order of acquittal passed by any Court other than High Court. The appeal is presented by the Public Prosecutor on the direction given by the State Government. Section 378(3) Cr.P.C provides that an appeal can be entertained only with the leave of the High Court. Sections 378378(3) and 401(4) Cr.P.C reads as under: “ Section 378 Cr.P.C: Appeal in case of acquittal the State Government Section 378(1)(b) Cr.P.C: may in any case direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court not being an order under clauseor an order of acquittal passed by the Court of Session in Section 378(3) Cr.P.C: No appeal under Sub Sectionor Sub Sectionshall be entertained except with the leave of the High Court.” CRL.REV.P. 12 2018 “Section 401 Cr.P.C: High Court’s powers of revision Section 401(4) Cr.P.C: Where under this Code an appeal lies and no appeal is brought no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.” The Supreme Court in Subhash Chand v. State(2013) 2 SCC 17 has succinctly analysed Sections 378and 378Cr.P.C as amended by the 25th Amendment Act 2005. The said judgment reads as At the outset it must be noted that as per Section 378(3) appeals against orders of acquittal which have to be filed in the High Court under Sections 378(1)(b) and 378(2)(b) of the Code cannot be entertained except with the leave of the High Court. Section 378(1)(a) provides that in any case if an order of acquittal is passed by a Magistrate in respect of a cognizable and non bailable offence the District Magistrate may direct the Public Prosecutor to present an appeal to the Court of Session. Sub section of Section 378 provides that in any case the State Government may direct the Public Prosecutor to file an appeal to the High Court from an original or appellate order of acquittal passed by any court other than a High Court not being an order under clauseor an order of acquittal passed by the Court of Session in revision. Sub section of Section 378 refers to orders of acquittal passed in any case investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act 1946 or by any other agency empowered to make investigation into an offence under any Central Act other than the Code. This provision is similar to sub sectionexcept that here the words “State Government” are CRL.REV.P. 12 2018 substituted by the words “Central Government”. If we analyse Sections 378(1)(a) and it is clear that the State Government cannot direct the Public Prosecutor to file an appeal against an order of acquittal passed by a Magistrate in respect of a cognizable and non bailable offence because of the categorical bar created by Section 378(1)(b). Such appeals that is appeals against orders of acquittal passed by a Magistrate in respect of a cognizable and non bailable offence can only be filed in the Sessions Court at the instance of the Public Prosecutor as directed by the District Magistrate. Section 378(1)(b) uses the words “in any case” but leaves out orders of acquittal passed by a Magistrate in respect of a cognizable and non bailable offence from the control of the State Government. Therefore in all other cases where orders of acquittal are passed appeals can be filed by the Public Prosecutor as directed by the State Government to the High Court. 19. Sub sectionof Section 378 makes provision for appeal against an order of acquittal passed in a case instituted upon complaint. It states that in such case if the complainant makes an application to the High Court and the High Court grants special leave to appeal the complainant may present such an appeal to the High Court. This sub section speaks of “special leave” as against sub section relating to other appeals which speaks of “leave”. Thus the complainant s appeal against an order of acquittal is a category by itself. The complainant could be a private person or a public servant. This is evident from sub sectionwhich refers to application complainant. It grants six months period of limitation to a complainant who is a public servant and sixty days in every other case for filing application. Sub sectionis important. It states that if in any case the complainant s for “special leave” by CRL.REV.P. 12 2018 application for “special leave” under sub section is refused no appeal from the order of acquittal shall lie under sub section or under sub section Section 401(4) Cr.P.C mandates that if the Code of Criminal Procedure provides for an appeal and no appeal is brought then no proceedings by revision shall be entertained at the instance of the parties who could have appealed. The scheme under Sections 378 Cr.P.C and 401 Cr.P.C therefore postulates that when there is a right of appeal against any order of acquittal by any Court to the High Court a revision petition cannot be entertained. The procedure for filing an appeal is that the State Government has to direct the Public Prosecutor to prefer an appeal. The appeal so preferred by the Public Prosecutor at the direction of the State Government can be entertained by the High Court only if the High Court grants leave. The Public Prosecutor therefore cannot file a revision petition and get over the provisions of Sections 378(1)(b) and 378(3) Cr.P.C. It is well settled that what cannot be achieved directly cannot be achieved indirectly by resorting to a power of revision and that too while there is a specific provision barring entertaining a revision petition when a remedy of appeal is available to the State. The purpose of Section 378(3) Cr.P.C which postulates that the State Government can file an appeal on an order of acquittal passed by any Court after getting leave of the High Court is to prevent the Government from filing frivolous appeals and give quietus to the CRL.REV.P. 12 2018 case because the presumption of innocence gets fortified by acquittal. The scheme clearly distinguishes between an appeal against acquittal and an appeal against conviction. It is well settled that if there is a power coupled with duty mandating that an act has to be done in a particular way it has to be done only in that way or not at all and all other modes are forbidden. The said principle has been laid down in Taylor v. Taylor 1 Ch.D 426 where it was observed that where a statutory power is conferred for the first time upon a Court and the mode of exercising it is pointed out it means that no other mode has to be adopted. This judgment has been followed by the Privy Council in another celebrated judgment: Nazir Ahmad v. King Emperor AIR 1936 PC 253 wherein it has been observed as under: where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily This principle has been consistently followed by the Supreme Court in a number of judgments12 SCC 608 State v. Sanjeev Nanda 8 SCC 450) Nika Ram v. State of H.P. 2 SCC 80 Delhi Airtech Services Ltd. v. State of U.P. 9 SCC 354) In the instant case the Trial Court has acquitted the respondent herein. The State Government had to direct the Public Prosecutor to present an appeal to the High Court. No such direction has been filed. There is no averment in the revision petition that this revision petition has been filed by the Public Prosecutor at the direction of the State Government. In view of CRL.REV.P. 12 2018 the above this revision petition as framed cannot be entertained. Section 401(5) Cr.P.C reads as under: “Section 401 Cr.P.C: High Court’s powers of revision Section 401(5) Cr.P.C: Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly.” Section 401(5) Cr.P.C provides that when an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly. The word person has not been defined in the Cr.P.C but has been defined in Section 11 of the Indian Penal Code. Section 11 IPC reads as under: “11. “Person”.—The word “person” includes any Company or Associa tion or body of persons whether incorporated or not.” Section 401(5) Cr.P.C cannot apply to the State. It cannot be stated argued that the State was under erroneous belief that no appeal would lie from the order passed by the Sessions Court. 10. No doubt Section 397 Cr.P.C gives power to the High Court to suo CRL.REV.P. 12 2018 moto call for and examine the records of any proceeding before any inferior criminal Court situated within its local jurisdiction for the purpose of satisfying itself as to the correctness legality or propriety of any finding. Sentence or order recorded or passed and as to the regularity of any proceedings of such inferior Court and may when calling for such record direct that the execution of any sentence or order be suspended and if the accused is in confinement that he be released on bail or on his own bond pending the examination of the record. The High Court can look into the records of the case suo moto but it is equally well settled that such interference has to be used very sparingly. The Sessions Court has taken a view and it cannot be said that the view taken by the Sessions Court is so perverse that this Court should call for the records of the case for exercising its jurisdiction under Section 397(1) Cr.P.C. A reading of the judgment of the Sessions Court and the grounds raised in the revision petition does not persuade this Court to call for the records of this case for further examination. The Sessions Court after looking into the material on record has acquitted the respondent herein and as stated earlier it cannot be said that the findings and reasoning of the Appellate Court are so perverse that no Court could have come to such a conclusion while acquitting the respondent. In view of the above this revision petition is not maintainable and the same is dismissed on the ground of maintainability along with the pending SUBRAMONIUM PRASAD J application. JUNE 01 2021 CRL.REV.P. 12 2018

Disciplinary authority is required to finish the investigation proceedings in a timely manner: Patna High Court

The disciplinary authority is required to finish the investigation proceedings and the appointing authority is directed to investigate whether Peon services could be drafted to Corporation and if it is not legal, the appropriate order should be issued and conveyed is upheld by the High Court of Patna through the learned bench led by HONOURABLE MR. JUSTICE P. B. BAJANTHRI in the case of Virendra Kumar Vs. The State of Bihar (Civil Writ Jurisdiction Case No. 1750 of 2021) Brief facts of the case are that the petitioner has asked for the issuance of a writ in the nature of a writ of mandamus directing the respondents to pay the petitioner’s salary for the month of February 2020 up to the present because the petitioner has been working continuously as a Peon in the office of the Superintending Engineer, PHED, and for a direction to the respondents to issue a copy of the office order by which the petitioner’s service has been transferred from his current place of posting  (office of the Superintending Engineer, PHED to BUIDCO headquarters at Rajapur Pull, Patna). The petitioner has requested that the respondent’s office send a relieving letter to the petitioner so that the petitioner can be released and join at the transfer location. During the pendency of the present case, the petitioner’s fundamental remedy has been set right in providing arrears of salary for which the present petition is filed, and the petitioner has filed an Interlocutory Application requesting certain further remedies. The petitioner’s learned counsel stated that the petitioner was removed from the parent department and was asked to work for the Bihar Urban Infrastructure Development Corporation Limited (the “Corporation”), and that the deputation to the Corporation was not challenged. The petitioner is not entitled to redress as addressed by the learned counsel for the petitioner until the deputation order is challenged. Considering the facts and circumstances, the petition is dismissed, with the petitioner reserved the right to claim the difference in salary if he is found not guilty in the disciplinary processes. If he is found guilty, the authority is therefore directed to regulate the period in line with the law within three months of the conclusion of the investigation. The disciplinary authority is hereby required to finish the investigation proceedings and the appointing authority who deputed the petitioner’s service to Corporation is hereby directed to investigate whether Peon services could be drafted to Corporation and if it is not legal, the appropriate order will be issued and conveyed to the petitioner. Click here to read the judgment

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.104220 Virendra Kumar Son of Late Nand Ram resident of Mohalla Subhash Nagar Khemnichak P.O. Jaganpura P.S. Ram Krishna Nagar District Patna 27 ... Petitioner s The State of Bihar through the Engineer in Chief cum Special Secretary Public Health Engineering Department Nirman Bhawan Bailey Road Patna 800015 Superintending Engineer Public Health Engineering Department Circle No 01 at present Bihar Rajya Jal Parshad Bihar Urban Infrastructure Development Co. Ltd BUIDCO) Ganga Project Circle No. 01 West Boring Canal Road Rajapur Pull P.S. Budha Colony Patna 800001 3. General Manager Bihar Urban Infrastructure Development Co Ltd.West Boring Canal Road Rajapur Pull P.S. Budha Colony Patna 800001 4. Managing Director Bihar Urban Infrastructure Development Co. Ltd BUIDCO) West Boring Canal Road Rajapur Pull P.S. Budha Colony Patna 800001 Principal Secretary Urban Development and Housing Department Govt. of Bihar Vikas Bhawan Bailey Road Patna 800001 ... Respondent s For the Petitioner s For the Respondent s Mr. Prakash Kumar Advocate Mr. Rajiv Roy GP 1 Mr. Rabindra Kumar Priyadarshi Advocate CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI Date : 25 01 2022 The matter is heard via video conferencing due to circumstances prevailing on account of the COVID 19 pandemic 2. In the instant petition petitioner has prayed for the following relief reliefs: “i. For issuance of writ in the nature of writ of mandamus directing the respondents to pay to the petitioner the salary for the month from February 2020 up till now as the Patna High Court CWJC No.104220 dt.25 01 2022 petitioner is working continuously on the post of Peon in the office of the Superintending Engineer PHEDBUIDCo to issue a copy of office order no. 124 dated 22.04.2020by which the service of the petitioner has been transferred from his present place of posting i.e. in the office of the Superintending Engineer PHED Circle No. 1 respondent no. 2) to BUIDCO headquartersat Rajapur Pull Patna and further to issue relieving letter from the office of respondent no. 2 to the petitioner so that the petitioner may get relieved and join at the place of transfer iii. For grant of any other relief or reliefs as made available to the petitioner as per the law.” 3. Petitioner has filed Interlocutory Application seeking certain additional relief. During pendency of the present petition the petitioner’s main relief has been set right in providing arrears of salary for which present petition is filed. 4. Learned counsel for the petitioner submitted that the petitioner has been ousted from the parent department and asking the petitioner to work in Bihar Urban Infrastructure Development Corporation Limited (for short “Corporation”). There is no challenge to the deputation to the Corporation. In the absence of challenge to the deputation order the petitioner is not entitled to relief as addressed by the learned counsel for the petitioner. 5. In the light of above facts and circumstances present petition stands disposed off reserving liberty to the petitioner to claim difference of salary in the event of petitioner is exonerated in the disciplinary proceedings. If he is punished in that event the Patna High Court CWJC No.104220 dt.25 01 2022 authority is hereby directed to regulate the period in accordance with law within a period of three months from the date of conclusion of the enquiry. 6. The disciplinary authority is hereby directed to complete the enquiry proceedings within a period of two months from today. The appointing authority who has deputed the petitioner’s service to Corporation is hereby directed to examine whether Peon services could be drafted to Corporation or not If it is not in accordance with law necessary order shall be passed and communicated to the petitioner. P. B. Bajanthri J GAURAV S.

Union of India v/s BESCO Ltd

“The Chief Justice or the designated Judge under Section 11(6) of the Arbitration Act is free to nominate any qualified person as arbitrator and that the Chief Justice or the designated Judge is not bound to nominate the arbitrator as specified in the agreement” ISSUE AND PROCEDURAL HISTORY:The short question arising for consideration in this case is whether the Chief Justice of a High Court or any person or institution designated by him, while exercising power under Section 11(6) of The Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Act”) is bound to nominate an arbitrator as specified in the agreement for arbitration.The designated Judge in the High Court took the view that the appellant has lost the mandate to appoint an arbitrator since it failed to appoint the arbitrator within the permitted time and hence nominated an independent arbitrator. RATIO OF THE COURT:Mr. Maninder Singh, learned Additional Solicitor General, placing reliance on Union of India and another v. M.P. Guptaand Union of India and others v. Master Construction Company, submitted that the designated Judge, exercising the power under Section 11(6) of the Act, is bound to nominate a person as stipulated in the agreement for arbitration.Mr. Dushyant Dave, learned Senior Counsel appearing for the respondent submits that once the right of a party to nominate an arbitrator is forfeited, the Chief Justice or the designated Judge under Section 11(6) of the Act is free to nominate any qualified person as arbitrator and that the Chief Justice or the designated Judge is not bound to nominate the arbitrator as specified in the agreement. Our attention has been invited to Northern Railway Administration, Ministry of Railway, New Delhi v. Patel Engineering Company Limited(2008) 10 SCC 240and North Eastern Railway and others v. Tripple Engineering Works(2014) 9 SCC 288.In Patel Engineering Company Limited (supra), a three-Judge Bench of this Court held that the Chief Justice or the designated Judge, if required, is free to deviate from the arbitration clause and nominate an independent person; but while doing so, due regard shall be given to the qualifications prescribed in the arbitration agreement, as required under Section 11(8) of the Act.In Indian Oil Corporation and others v. Raja Transport Private Limited(2009) 8 SCC 520, this Court has elaborately discussed the scope of Section 11 of the Act and held that if the circumstances so warrant, the Chief Justice or the designated Judge can ignore the specified arbitrator as stipulated in the agreement.Thus, the issue is no more res integra. Though an arbitrator is specified in the agreement for arbitration, if circumstances so warrant, the Chief Justice or the designated Judge is free to appoint an independent arbitrator, having due regard to the qualification, if any, and other aspects as required under Section 11(8) of the Act.The designated Judge of the High Court has only exercised his powers in terms of the agreement by nominating an independent arbitrator. DECISION HELD BY COURT: Thus, the court find no merit in this appeal and the same is accordingly dismissed. There shall be no order as to costs.

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4483 OF 2017 Arising out of S.L.P.(C) No. 178314 UNION OF INDIA APPELLANTNO. 26614 OF 2014 JUDGMENT KURIAN J CIVIL APPEAL NO. 4483 OF 2017 Arising out of S.L.P.(C) No. 178314 Leave granted. The short question arising for consideration in this case is whether the Chief Justice of a High Court or any person or institution designated by him while exercising power under Section 11(6) of The Arbitration and Conciliation Act 1996 hereinafter referred to as “the Act”) is bound to nominate an arbitrator as specified in the agreement for arbitration. The Page 1 designated Judge in the High Court took the view that the appellant has lost the mandate to appoint an arbitrator since it failed to appoint the arbitrator within the permitted time and hence nominated an independent arbitrator Mr. Maninder Singh learned Additional Solicitor General placing reliance on Union of India and another v. M.P Gupta1 and Union of India and others v. Master Construction Company2 submitted that the designated Judge exercising the power under Section 11(6) of the Act is bound to nominate a person as stipulated in the agreement for arbitration. In M.P. Gupta the relevant clauses on arbitration contained a provision that the arbitrators should be Gazetted Railway Officers. It may also be relevant in this context to note that the arbitration agreement contained a specific provision that it is a term of contract that no person other than a gazetted railway officer should act as an arbitrator umpire and if for any reason that is not possible the matter is not to be referred to arbitration at all. This Court 10 SCC 504 212 SCC 349 Page 2 hence set aside the order passed by the designated Judge who had nominated a retired Judge as the sole arbitrator. In Master Construction Companythe question in issue was in fact left open Mr. Dushyant Dave learned Senior Counsel appearing for the respondent submits that once the right of a party to nominate an arbitrator is forfeited the Chief Justice or the designated Judge under Section 11(6) of the Act is free to nominate any qualified person as arbitrator and that the Chief Justice or the designated Judge is not bound to nominate the arbitrator as specified in the agreement. Our attention has been invited to Northern Railway Administration Ministry of Railway New Delhi v. Patel Engineering Company Limited3 and North Eastern Railway and others v. Tripple In Patel Engineering Company Limited a three Judge Bench of this Court held that the Chief Justice or the designated Judge if required is free to deviate from the arbitration clause and nominate an independent person but while doing so due regard shall be given to the qualifications 310 SCC 240 49 SCC 288 Page 3 prescribed in the arbitration agreement as required under Section 11(8) of the Act In Tripple Engineering Works also this Court reiterated the position that the Chief Justice or the designated Judge was free to deviate from the terms of the contract Paragraphs 6 and 7 read as follows: “6. The “classical notion” that the High Court while exercising its power under Section 11 of the Arbitration and Conciliation Act 1996must appoint the arbitrator as per the contract between the parties saw a significant erosion in ACE Pipeline Contracts Ltd. wherein following a three Judge Bench decision in Punj Lloyd Ltd. v. Petronet MHB Ltd. it was held that once an aggrieved party files an application under Section 11(6) of the Act to the High Court the opposite party would lose its right of appointment of the arbitrator(s) as per the terms of the contract. The implication that the Court would be free to deviate from the terms of the contract is obvious 7. The apparent dichotomy in ACE Pipeline and Bharat Battery Mfg. Co.Ltd. was reconciled by a three Judge Bench of this Court in Northern Railway Admn. v. Patel Engg. Co. Ltd. wherein the jurisdiction of the High Court under Section 11(6 of the Act was sought to be emphasised by taking into account the expression “to take the necessary Page 4 measure” appearing in sub sectionof Section 11 and by further laying down that the said expression has to be read along with the requirement of sub sectionof Section 11 of the Act. The position was further clarified in Indian Oil Corpn. Ltd. v. Raja TransportLtd. Para 48 of the Report wherein the scope of Section 11 of the Act was summarised may be quoted by reproducing sub paras and hereinbelow: The Chief Justice or his designate while exercising power under sub sectionof Section 11 shall endeavour to give effect to the appointment procedure prescribed in the vii) If circumstances exist giving rise to justifiable doubts as to the independence and impartiality of the person nominated or if other circumstances warrant appointment of an independent arbitrator by ignoring the procedure prescribed the Chief Justice or his designate may for reasons to be recorded ignore the designated arbitrator and appoint emphasis in original)” In Indian Oil Corporation and others v. Raja Transport Private Limited5 this Court has elaborately discussed the scope of Section 11 of the Act and held that if the circumstances so warrant the Chief Justice or the designated Judge can ignore the specified arbitrator as stipulated in the agreement. Paragraphs 45 and 48 to the extent relevant read as follows: 58 SCC 520 Page 5 “45. If the arbitration agreement provides for arbitration by a named arbitrator the courts should normally give effect to the provisions of the arbitration agreement. But as clarified by Northern Railway Admn. where there is material to create a reasonable apprehension that the person mentioned in the arbitration agreement as the arbitrator is not likely to act independently or impartially or if the named person is not available then the Chief Justice or his designate may after recording reasons for not following the agreed procedure of referring the dispute to the named arbitrator appoint an independent arbitrator in accordance with Section 11(8) of the Act. In other words referring the disputes to the named arbitrator shall be the rule. The Chief Justice or his designate will have to merely reiterate the arbitration agreement by referring the parties to the named arbitrator or named Arbitral Tribunal Ignoring the named arbitrator Arbitral Tribunal and nominating an independent arbitrator shall be the exception to the rule to be resorted for valid xxxx xxxx xxxx 48. In the light of the above discussion the scope of Section 11 of the Act containing the scheme of appointment of arbitrators may be i) Where the agreement provides for arbitration with three arbitratorsin the event of a party failing to appoint an arbitrator within 30 days from the receipt of a request from the other party the Chief Justice or his designate will exercise power under sub section of Section 11 of the Act Page 6Where the agreement provides for arbitration by a sole arbitrator and the parties have not agreed upon any appointment procedure the Chief Justice or his designate will exercise power under sub sectionof Section 11 if the parties fail to agree on the arbitration within thirty days from the receipt of a request by a party from the other party iii) Where the arbitration agreement specifies the appointment procedure then irrespective of whether the arbitration is by a sole arbitrator or by a three member Tribunal the Chief Justice or his designate will exercise power under sub sectionof Section 11 if a party fails to act as required under the agreed procedureWhile failure of the other party to act within 30 days will furnish a cause of action to the party seeking arbitration to approach the Chief Justice or his designate in cases falling under sub sections and such a time bound requirement is not found in sub sectionof Section 11. The failure to act as per the agreed procedure within the time limit prescribed by the arbitration agreement or in the absence of any prescribed time limit within a reasonable time will enable the aggrieved party to file a petition under Section 11(6) of the Act v) Where the appointment procedure has been agreed between the parties but the cause of action for invoking the jurisdiction of the Chief Justice or his designate under clausesb) orof sub sectionhas not arisen then the question of the Chief Justice or his designate exercising power under sub sectiondoes not arise. The condition precedent for approaching Page 7 the Chief Justice or his designate for taking necessary measures under sub section is i) a party failing to act as required under the agreed appointment procedure or ii) the parties failing to reach an agreement expected of them under the agreed appointment procedure or iii) a person institution who has been entrusted with any function under the agreed appointment procedure failing to perform vi) The Chief Justice or his designate while exercising power under sub section of Section 11 shall endeavour to give effect to the appointment procedure prescribed in the vii) If circumstances exist giving rise to justifiable doubts as to the independence and impartiality of the person nominated or if other circumstances warrant appointment of an independent arbitrator by ignoring the procedure prescribed the Chief Justice or his designate may for reasons to be recorded ignore the designated arbitrator and appoint Thus the issue is no more res integra. Though an arbitrator is specified in the agreement for arbitration if circumstances so warrant the Chief Justice or the designated Judge is free to appoint an independent arbitrator having due regard to the qualification if any and other aspects as required under Section 11(8) of the Act On the facts of the present case one wonders whether the issue actually arose or not. Clause 2900 of the Standard Conditions of Contract no doubt provides that the sole arbitrator shall be a Gazetted Railway Officer but in Clause 19.0 of the agreement dated 16.01.2012 executed between the parties it is clearly stipulated that the contract shall be governed by the General Conditions and Special Conditions of Contract. Clause 19.0 specifically provides that ... “the contract shall be governed by the general conditions and special conditions of contract. ...”. Paragraph 18.0 of the General Conditions and Special Conditions of Contract reads as follows In the event of any question dispute or difference arising under these conditions or any special condition of contract or in connection with this contractthe same shall be referred to the sole Arbitration of a person appointed to be arbitrator by the General Manager in the case Page 9 contracts entered into by the Zonal Railways and Production Units by the the Railway Board member of concerned in the case of contracts entered into by the Railway Board and by the head of the organizations in respect of the contracts entered into by the other organizations under the Ministry of Railways. There will be no objection if the arbitrator is a Government Servant that he had to deal with matters to which the contract relates or that in the course of his duties as a Government Servant he has expressed views on all or any of the matters in disputes or difference. The award of the Arbitrator shall be final and binding on the parties to this contract.” Thus it is clear that there is no stipulation for appointment of a Railway Officer. It can be any person. The designated Judge of the High Court has only exercised his powers in terms of the agreement by nominating an Thus we find no merit in this appeal and the same is accordingly dismissed. There shall be no order as to costs. Page 10 SPECIAL LEAVE PETITIONNO. 26614 OF 2014 In view of the Judgment of this Court in Civil Appeal No 4483 of 2017 @ Special Leave Petition No. 17838 of 2014 we find no merit in this petition and the same is accordingly dismissed. There shall be no order as to costs (KURIAN JOSEPH (R. BANUMATHI New Delhi MARCH 27 2017.

Once the work has been executed by the petitioner to the satisfaction of respondents, it is not open to the respondents to withhold the payment: The High Court of Jammu & Kashmir and Ladakh

If the respondents were short of funds, they should not have gone ahead with the allotment of work and withheld the payment of the petitioner. The inaction on the part of respondents has definitely caused a lot of harassment and inconvenience to the petitioner. Such an attitude on the part of Government functionaries cannot be countenanced. The petitioner cannot be made to wait for years together for his legitimate dues. The aforesaid has been considered by the High Court of Jammu & Kashmir and Ladakh while adjudicating the case of  M/S AL-Qaimoon Constructions v. Commr/Secretary & Ors. [ WP(C) No.1754/2021 CM No.5840/2021] which was decided upon by the single judge bench comprising Justice Sanjay Dhar on 10th November 2021. The facts of the case are as follows. It is averred in the petition that in response to NIT through etendering process, the petitioner offered its bids and thereafter, the work for construction of 0.75 lac Gallons RCC dome type clear water sump for water supply scheme, Shoul Sarsona was allotted in favour of the petitioner. The cost of the work was Rs37.11 lacs. It is further averred that after the allotment of work was executed by respondents in favour of the petitioner whereafter the petitioner started execution of the work by mobilizing men and machinery. It is further averred that after successful completion of the allotted work, the same was checked and measured by the respondents and a bill in the amount of Rs.28,76,000/ was raised by the petitioner before respondent No.5. After verification and authentication of this bill, net amount of Rs.24,37,410/ was found payable in favour of the petitioner. According to the petitioner, this amount has remained unpaid though the same is not being disputed by the respondents. The court perused the facts and arguments presented. It was of the opinion that “ it is a case of admitted liability by the respondents. The respondents are directed to pay an amount of Rs.24,37,410/ (Rupees twenty-four lacs thirty-seven thousand and four hundred ten only) to the petitioner within a period of three months from the date of this order. The petitioner shall also be entitled to interest @6% from the date of filing of this petition till realization of aforesaid amount.”

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on: 28.10.2021 Pronounced on: 10.11.2020 WP(C) No.1754 2021 CM No.5840 2021 M S AL QAIMOON CONSTRUCTIONS ...PETITIONER(S) Through: Mr. M. A. Beigh Advocate. COMMR SECRETARY & ORS. Through: Mr. Irfan Andleeb Dy. AG. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR JUDGE Petitioner has filed the instant petition seeking a direction upon respondents to release a sum of Rs.24 37 410 in its favour which according to the petitioner is outstanding in respect of the works executed by it pursuant to allotment order No.PHB 7977 79 dated is averred the petition in response to NIT No.24 PHED Bijbehara of 2019 20 dated 13.12.2019 through e tendering process the petitioner offered its bids and thereafter vide allotment order No.PHB 7911 79 dated 18.01.2020 the work for construction of 0.75 lac Gallons RCC dome type clear water sump for 2 water supply scheme Shoul Sarsona was allotted in favour of the petitioner. The cost of the work was Rs37.11 lacs. It is further averred that after the allotment of work the agreement contract No.655 PHB of 1 2020 was executed by respondents in favour of the petitioner whereafter the petitioner started execution of the work by mobilizing men and machinery. It is further averred that after successful completion of the allotted work the same was checked and measured by the respondents and a bill in the amount of Rs.28 76 000 was raised by the petitioner before respondent No.5. After verification and authentication of this bill net amount of Rs.24 37 410 was found payable in favour of the petitioner. According to the petitioner this amount has remained unpaid though the same is not being disputed by the respondents. It is further averred that a Committee constituted by the respondents in terms of Government Order No.49 JK(JSD) of 2021 dated 25.02.2021 conducted physical verification of the works done which included the work allotted to the petitioner and the said Committee has physically verified the work executed by the petitioner. Finally petitioner has submitted that despite repeated requests to the respondents the admitted amount of Rs.24 37 410 has not been paid to the petitioner who has raised bank loan to execute the work in Reply on behalf of respondents has been filed. In their reply respondents have admitted that the work in question was allotted in 3 favour of the petitioner in terms of allotment order dated 18.01.2020. It is also admitted by respondents that after completion of work petitioner had submitted bills which have been passed for an amount of Rs.24 37 410 . It is averred that the Committee constituted by the Government for physical verification of the work executed under languishing projects has also conducted physical verification of the work executed by the petitioner and it has submitted its report to the Government. However it is submitted that the response of the Government regarding release of payment of the petitioner is still awaited and as and when the Government will issue orders for release of the payment the same will be released in accordance with rules in favour of the petitioner. material on record. I have heard learned counsel for the parties and perused the From the response of the respondents it is clear that they have not raised any dispute as regards their liability to pay the amount of Rs.24 37 410 to the petitioner. The allotment of work and its execution by the petitioner has also been admitted. The amount claimed by the petitioner from the respondents is also not in dispute and it is also not in dispute that the work has been physically verified by the Government. The only plea taken by respondents in their reply is that they are awaiting release of payment from the Government so that the same is released in favour of the petitioner. Thus it is a case of admitted liability by the respondents. Once the work has been executed by the 4 petitioner to the satisfaction of respondents it is not open to the respondents to withhold the payment. If the respondents were short of funds they should not have gone ahead with the allotment of work and withheld the payment of the petitioner. The inaction on the part of respondents has definitely caused a lot of harassment and inconvenience to the petitioner. Such an attitude on the part of Government functionaries cannot be countenanced. The petitioner cannot be made to wait for years together for his legitimate dues. For the foregoing reasons the petition is allowed. The respondents are directed to pay an amount of Rs.24 37 410 to the petitioner within a period of three months from the date of this order. The petitioner shall also be entitled to interest @6% from the date of filing of this petition till realization of aforesaid amount. The petition shall stand disposed of in above terms. Judge “Bhat Altaf PS” Whether the order is speaking: Yes No Whether the order is reportable: Yes No

The District Council Courts are conferred with powers and jurisdiction to try suits and cases between members of the Scheduled Tribes : High Court of Meghalaya

The learned Judge District Council Court, GHADC had dismissed the application for probate of the said Will, mainly on the ground that the court lacked legal jurisdiction. 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 Smti. Clarinda Momin Vs. Smti. Brishmony G. Momin [FA. No. 1 of 2019].  The facts of the case were associated with the appellant who was aggrieved by the order dated 10.05.2007. The Counsel, Mr. A. H. Hazarika representing the appellant stated that the appellant herein was the executor of her late elder brother’s Will and Testament. The late brother left all his landed property including four residential standing houses and other belongings, moveable and immoveable to the Appellant but excluding his first wife, the respondent. Moreover, before the Garo Hills District Council Court at Tura, the appellant filed an application wherein the Court in favour of the Appellant had granted probate of the Will. The Counsel also stated that the application was dismissed by the learned Judge, District Council Court, GHADC. There was a delay of 9/10 years in filing the application without any sufficient explanation for condonation of delay by the respondent.  On the other hand, the counsel for the respondent did not make any counter submissions and had consented to the prayer that this matter may be remanded to the Court of the Judge, District Council Court, GHADC for trial after allowing the Respondent herein to be made a party thereto.  The Hon’ble High Court considering all the facts stated that “In view of the above, this appeal is allowed. The impugned order is hereby set aside and quashed. Probate Case No. 1 of 2019 in the Court of the Judge, District Council Court, GHADC is restored to file. The Appellant/ Petitioner, as well as the Respondent herein, are accordingly directed to appear before the said Court on 20.11.2021 to proceed in the case.” The said matter was disposed of. 

Serial No. 01 Regular List HIGH COURT OF MEGHALAYA AT SHILLONG MAC App. No. 21 Date of Decision: 10.11.2021 New India Assurance Co. Ltd Vs. Smti Khein Kharsati represented by Smti. Shandra Kharsati & 2 Ors. 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. S. Jindal Adv. Mr. H. Nongkhlaw Adv. for R 1. None for R 2 & 3. ii) Whether approved for publication in press: The Judgment dated 13.06.2019 passed by the learned Member Motor Accident Claims Tribunal(MACT) East Khasi Hills Shillong is under challenge in this instant appeal. Brief facts of the case is that on 17.09.2011 at about 9:00 PM a Motor Vehicle Accident occurred at a place called Pomlahier Mawryngkneng in the East Khasi Hills District of Meghalaya whereby one Truck bearing registration number AS01 BC 3835 dashed against one pedestrian Banlong Kharsati who received head and multiple injuries and died on the spot. The mother of the deceased the Respondent No. 1 herein through her daughter Smti. Shandra Kharsati sought for compensation on account of the death of her son named above from the MACT Shillong for an amount of ₹14 30 000 only against the Owner Driver and Insurer of the said vehicle in question. It may also be mentioned that as a result of the said Motor Vehicle Accident the police had registered a criminal case being Madanriting P.S. Case No. 92of 2011 under Section 279 304 A IPC against the driver of the said truck. On the matter being taken up by the MACT Shillong the Insurer New India Assurance Co. Ltd the appellant herein as OP No. 1 has entered appearance and filed the written statement. The Owner and Driver duly arrayed as Ops No. 2 and 3 respectively failed to appear in the matter and the learned Member MACT proceeded exparte against them. The learned Member MACT then framed three issues Viz Whether the Claim petition is maintainable Whether the death of the deceased was due to the fault of the truck No. AS01 BC 3835 or the fault of the deceased and Who is liable to pay compensation and to what extent . The Claimant Respondent No. 1 examined three witnesses as CW. 1 2 and 3 respectively while the OP No. 1 Appellant has examined two witnesses as DW. 1 and 2 respectively. The matter was finally argued by the parties and on conclusion of the same the learned Member MACT Shillong has awarded compensation of ₹ 3 62 500 only favour of Claimant Appellant. The said compensation was directed to be paid by the Appellant Insurance Company herein along with 9% interest p.a. Being highly aggrieved at and dissatisfied with the said Judgment and Order dated 13.06.2019 the Appellant Insurance Company has preferred this appeal inter alia on the ground that the same is not sustainable both under facts and law and is required to be set aside and quashed. Heard Mr. S. Jindal learned Counsel for the Appellant who has confined his argument on the findings of the learned Member MACT on issue No. “Who is liable to pay compensation and to what extent ”. Even on this issue the learned Counsel has taken exception on the finding of the MACT on the issue of the driving licence of OP Driver wherein at paragraph 27 of the said Judgment the learned Member MACT on appreciation of the evidence as regard the driving licence of the driver who has produced the same during evidence as Exhibit B which shows that he was holding a driving licence for driving vehicle in the category of LMV MGV HGV has found the said driving licence valid at the time of the accident which according to the learned Counsel is not the correct interpretation of the evidence in this regard and as such has failed to absolved the OP Insurance Company from its liability on this ground and further that the interest awarded at the rate of 9% pa is well above the prevailing rate of interest entitled to by the Respondent No. 1 Claimant. 10. To buttress his point Mr. Jindal has led this Court to the evidence of DW 1 Shri H.F. Khongsit who was the District Transport Officer(DTO) at the relevant period wherein in his deposition he has stated that “… Driving licence No. ML05 19990014477 was issued from DTO East Khasi Hills Shillong to Mr. Sylvester Sohtun. It was issued on 02.11.1999 and is valid only for Light Motor Vehicleand valid upto 06.03.2019. He was granted to upgrade heavy motor vehicle on 02.11.2011 to 30.11.201…”. In his cross examination this witness has reiterated that the driver Mr. Sylvester Sohtun was having a valid driving licence but only for light motor vehicle and his licence was upgrade to heavy motor vehicle only on 11. Again the evidence of DW 2 Mr. Sylvester Sohtun who was the driver of the said Truck in question was also pointed out when he has deposed that he was issued with a valid driving licence on 02.11.1999 and valid upto 30.11.2011. However he admitted that the said licence was issued for non transport. This makes it clear that the said driving licence does not bear the necessary endorsement on the date of the accident. In the light of this evidence Mr. Jindal has submitted that the learned Tribunal ought to have come to a finding to exonerate the Insurance Company or in the alternative if fasten with the initial liability of having to pay the said compensation then the liberty to pay and recover ought to have been allowed which was not done so. 12. Further submitting that the driver in this case does not possess a valid driving licence therefore the Insurance Company cannot be held responsible if there has been a violation of the policy conditions. The case of United India Insurance Co. Ltd v. Gyan Chand and others: 7 SCC 558 paragraphs 12 13 and the case of Oriental Insurance Co. Ltd v. Annemma and others: ACJ 409 paragraph 16 was cited to prove this point. However Mr. Jindal has candidly submitted that the Appellant is not pressing on this point in their favour. 13. Again Mr. Jindal has submitted that the recent trend as noticed from a number of judgments of the Hon’ble Supreme Court is that even in cases where there is a violation of policy conditions or that there is a fake or invalid driving licence the Hon’ble Supreme Court has directed the Insurer to pay first then recover the same from the Owner. In this regard the case of New India Assurance Co. Shimla v. Kamla and others:4 SCC 342 where the Hon’ble Supreme Court has employed the principle of pay and recover was cited. This principle if applied to this instant case is not opposed by the Appellant if found justified by this Court it is submitted. 14. On the issue of the rate of interest Mr. Jindal has submitted that the award of 9% interest by the learned Tribunal is not justified under the prevailing financial and economic condition of the Country and as such as was held by this Court in the case of Smti Ronilla Ch. Marak & Anr v. Mr. Aftar Ali and 2 Ors whereby the rate of interest was quantified at 6% the same may be made applicable in this case too. 15. Mr. H. Nongkhlaw learned Counsel appearing for the Respondent No. 1 has submitted that the fact that the accident has taken place and that the deceased son of the Respondent Claimant who was a bachelor at the time of his death died as a consequence of the said Motor vehicle Accident involving the said Truck Number AS01 BC 3835 which was duly insured with the Appellant Insurance Company herein is not a disputed fact. Therefore the Respondent No. 1 Claimant is entitled to the award of compensation passed by the learned Tribunal. 16. Mr. Nongkhlaw has however submitted that irrespective of who is to pay the said compensation whether the Owner or Appellant Insurance Company the Respondent No. 1 Claimant is entitled to the same and this Court may direct the same to be paid accordingly. 17. On the question of interest Mr. Nongkhlaw has submitted that the fact that the accident occurred in the year 2011 and the compensation award was made in the year 2019 the award of 9% interest is justified and this Court may not reduce the same as prayed for by the Appellant. 18. Having heard the learned Counsels for the parties this Court on consideration of the matter in hand has thought it fit to first take up the issue argued by the learned Counsel for the Appellant who has literally confined his argument only on the issue of whether the Appellant Insurer could be fasten with the liability of payment of the awarded compensation on the ground that the driving licence of the driver of the truck involved in the accident though being a valid one was however not the proper one to enable the said driver to drive a transport vehicle there being no endorsement on the said licence as on the date of the accident and in the alternative if the Appellant Insurer is directed to satisfy the said award then the principle of ‘Pay and recover’ is to be applied to enable the Appellant Insurer to recover the same from the Owner of the said Truck involved. In this regard on perusal of the evidence of OPW 1 the District Transport Officer it is seen that he has exhibited the Extract of Driving Licence of the driver Shri Sylvester Sohtun which revealed that the same was issued for Light Motor Vehicle on 02.11.1999 and under the heading of Catg(Category) the letters NT(Non Transport) was noted. In the next column under the heading COV(Cover) the letters TRANS(Transport) was noted and the date of issue of the same was indicated as 02.11.2011. 20. The driver Shri Sylvester Sohtun has been examined as OPW 2 and he has exhibited his driving licence as Exhibit B which shows that under the column ‘Date of issue’ the date 02.11.1999 was indicated while the validity of the same was noted as 30.11.2011. In his evidence the OPW 2(driver) has stated in his Examination in Chief that the driving licence was issued to him on 02.11.1999 and valid upto 30.11.2011. He however stated that the said driving licence was issued for non transport. This admission is relevant inasmuch as it corroborates with the evidence of the OPW 1(DTO) on this point. It is not the case of the Appellant Insurer that the said driver was not holding a valid driving licence but that he was not holding a driving licence with the endorsement of ‘Transport’ on it rather he was authorized to drive a transport vehicle only from 02.11.2011 about two months or so from the date of the said accident. 23. The learned Tribunal in holding that the driver is having a valid driving licence at the time of the accident is not wrong however no definite finding was returned as to whether the said driving licence was having an endorsement of ‘Transport’ on it at the time of the accident. On examination of Exhibit A what can be ascertained is that the driver was allowed to drive a transport vehicle only from 02.11.2011. In all probability the OPW 1 is privy to the full details of the said driving licence of the driver as could be seen from the extractand the one held by the driveris an abridged format of the same which would not carry all the details of date of renewal or subsequent endorsement of ‘Transport’ on the body of the same and as such this aspect of the evidence has escape the scrutiny of the learned Tribunal. 24. This being the case the contention of Mr. Jindal has validity as far as the nature of the driving licence of the said driver Shri Sylvester Sohtun at the time of the accident is concerned that the same is not valid for transport In the light of the above what has been established herein is that the fact that the said driver Shri Sylvester Sohtun was holding a driving licence not endorsed to enable him to drive a transport vehicle constitutes a breach of the policy condition between the Insured and the Insurer the Insurer is not liable to pay the compensation. However in the light of a number of pronouncements by the Hon’ble Supreme Court including the case of New India Insurance Co. Shimlacited by the Appellant and also in the case of Shamanna & Anr v. Divisional Manager Oriental Insurance Company Limited & Ors:9 SCC 650 wherein at paragraph 15 of the same the Hon’ble Supreme Court under the facts and circumstances has directed the Insurance company to pay the enhanced compensation to the Claimant along with accrued interests and the Insurance company to recover the same from the owner of the vehicle the same principle of pay and recover is made applicable in this instant case. 26. On the next point of contention raised by Mr. Jindal that is the rate of interest which according to him should not be quantified at the rate of 9% pa but in the light of the recent judgment of the Hon’ble Supreme Court and considering the economic condition of the country as well as the prevailing rate of interest offered by the banks the rate of interest should have been pegged at 6% pa this Court having considered the authority cited by the learned counsel that is the case of Smti Ronilla Ch. Marak & Anr. v. Mr Aftar Ali & Ors in which this Court vide order dated 27.08.2021 in MAC App. No. 18 while dealing with the issue of interest in the said case relying on relevant judgments of the Hon’ble Supreme Court has allowed the interest of 6% pa instead of 9% pa to be awarded on the award of compensation given. This being the case this instant case being similarly situated as far as the issue of interest is concerned this Court is inclined to confine the rate of interest herein to 6% pa. 27. Consequently this appeal is allowed to the extent indicated above with further direction to the Appellant New India Assurance Co. Ltd. Shillong to satisfy the award modified herein within a period of 30(thirty) days from the date of this order. 28. With the above this appeal is hereby disposed of. 29. Registry is directed to send back the case record. Judge “D. Nary PS”

Applying the aforesaid dictum of Hon’ble Supreme Court to the case is hand, the present petition is allowed: High Court of Delhi

Ms. Anita Sahni, Advocate has been appointed sole Arbitrator in these petitions to adjudicate the dispute between the Parminder Jit kaur and others versus Splendor Buildwel Pvt. Ltd. & Anr. By Hon’ble Mr. Justice Suresh Kumar Kait [ARB.P. 841/2021, ARB.P. 842/2021, ARB.P. 843/2021]. The present petitioner have been filled under the provisions of Section11(6) of the Arbitration and Conciliation Act, 1996 for the appointment of Arbitrator to adjudicate the dispute with respondents. With the consent of all the parties the matter is being heard together as the petitions are more or less similar. According to petitioner(s), respondent No.1 & 2 are companies registered under the Companies Act, 1956 and pursuant to understanding between two of them, respondent No.1-company agreed to undertake to develop and construct IT Building/Tower(s) consisting of IT Office Spaces on the land admeasuring 6.775 acres situated in Sector-58 in the revenue estate of Village Behrampur, Tehsil Sohna and District Gurgaon, Haryana owned by respondent No.2. For this purpose, respondents No.1 and 2, who were said to be sister concerns, entered into a Space Buyers Agreement and Memorandum of Understanding dated 28.07.2021 in [ARB.P.841/2021]; Space Buyers Agreement 24.10.2016 and Memorandum of Understanding dated 25.10.2016 in [ARB.P.842/2021] and Space Buyers Agreement and Memorandum of Understanding dated 06.05.2015 in [ARB.P.841/2021] whereunder respondent No.1 undertook to register conveyance deed in the name of petitioner within six months of receipt of Occupancy Certificate. The petitioner(s) claimed to have paid entire amount of Rs.25,70,400/ towards sales consideration with respect to unit No.404, super area of 765 Sq.ft on the Second Floor of Tower-D (in ARB.P.841/2021) and Rs.40,94,310/- towards sales consideration with respect to unit No.412, super area of 1306 Sq.ft on the Second Floor of Tower-D 9 (in ARB.P.842/2021) and Rs.41,48,3201/ – towards sales consideration with respect to unit No.205, super area of 975 Sq.ft on the Second Floor of Tower-B (ARB.P.843/2021). The petitioner has submitted that the Space Buyers Agreements and Memorandum of Understandings have been violated, whereunder in Clause-31 & 34 it was agreed between the parties that disputes, if any, first shall be tried to be resolved through mutual discussion, failing which the same shall be settled through arbitration. After various demands by the petitioners for the payment of pending assured terms and execution of sale deed, the respondent provided no reply and therefore the present petition is present. The Delh High Court following the dictims of the Surpeme Court in the cases of Perkins Eastman Architects DPC & Anr. Vs. HSCC (India) Ltd. 2019 SCC Online SC 1517, allowed the petitioner and thus Ms. Anita Sahni has been appointed as the sole arbitrator in the present matter. The fee of the learned Arbitrator shall be governed by the Fourth Schedule of the Arbitration and Conciliation Act, 1996. The learned Arbitrator shall ensure compliance of Section 12 of Arbitration and Conciliation Act, 1996 before commencing the arbitration, concludingly the present petitions are disposed of by the Delhi High Court.

4 to 6 ii) + iii) + IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 20.09.2021 ARB.P. 841 2021 PARMINDER JIT KAUR ARB.P. 842 2021 PARMINDER JIT KAUR & ANR. ARB.P. 843 2021 PARMINDER JIT KAUR Petitioner(s) Through: Mr. Siddharth Asthana and Mr. Siddhant Nath Advocates SPLENDOR BUILDWELL PVT.LTD. & ANR. Through: Mr. Poorva Pant Advocate Respondents HON BLE MR. JUSTICE SURESH KUMAR KAIT JUDGMENT The hearing has been conducted through video conferencing. Petitioner in the first and third captioned is Ms. Paraminder Jit Kaur and in the second captioned petition besides her is Mr. Manmohanjit Singh is who have preferred these petitions under the provisions of Section ARB.P.841 2021 842 2021 & 843 2021 11(6) of the Arbitration and Conciliation Act 1996 for appointment of Arbitrator to adjudicate the dispute with respondents. Since parties to the present petitions are similar and even the subject matter of these petitions is more or less similar therefore with the consent of counsel representing both the sides these petitions have been heard together and are being disposed of by this common judgment. According to petitioner(s) respondent No.1 & 2 are companies registered under the Companies Act 1956 and pursuant to understanding between two of them respondent No.1 company agreed to undertake to develop and construct IT Building Tower(s) consisting of IT Office Spaces on the land admeasuring 6.775 acres situated in Sector 58 in the revenue estate of Village Behrampur Tehsil Sohna and District Gurgaon Haryana owned by respondent No.2. For this purpose respondents No.1 and 2 who are said to be sister concerns entered into a Space Buyers Agreement and Memorandum of Understanding dated 28.07.2021 in ARB.P.841 2021] Space Buyers Agreement Memorandum of Understanding dated 25.10.2016 in and Space Buyers Agreement and Memorandum of Understanding dated 06.05.2015 inwhereunder respondent No.1 undertook ARB.P.841 2021 842 2021 & 843 2021 to register conveyance deed in the name of petitioner within six months of receipt of Occupancy Certificate. The petitioner(s) claims to have paid entire amount of Rs.25 70 400 towards sales consideration with respect to unit No.404 super area of 765 Sq.ft on the Second Floor of Tower D in ARB.P.841 2021) and Rs.40 94 310 towards sales consideration with respect to unit No.412 super area of 1306 Sq.ft on the Second Floor of Tower D 9 and Rs.41 48 3201 towards sales consideration with respect to unit No.205 super area of 975 Sq.ft on the Second Floor of Tower B(Comm.) 175 2021 176 2021 & 177 2021] wherein respondents have undertaken that no third party interests shall be created with regard to properties in question with liberty to petitioners to invoke the arbitration clause. It is pleaded on behalf of the petitioners that petitioners vide Notice dated 14.07.2021 invoked the arbitration clause and appointed Shri. Udit Gupta as the Sole Arbitrator and invited respondent to give confirmation to the same. In reply thereof respondents vide its communication dated 13.08.2021 nominated its own sole Arbitrator which is contrary to the law. Hence these petitions. The contents of these petitions are disputed by learned counsel ARB.P.841 2021 842 2021 & 843 2021 appearing on behalf of respondents however is not disputed that the disputes inter se parties can be resolved through arbitration. 9. With regard to appointment of Arbitrators the Hon’ble Supreme Court in Perkins Eastman Architects DPC & Anr. Vs. HSCCLtd. 2019 SCC Online SC 1517 has categorically stated that “in cases where one party has a right to appoint a sole arbitrator its choice will always have an element of exclusivity in determining or charting the course for dispute resolution. Naturally the person who has an interest in the outcome or decision of the dispute must not have the power to appoint a sole 10. Applying the aforesaid dictum of Hon’ble Supreme Court to the case is hand the present petition is allowed. 11. Accordingly Ms. Anita Sahni Advocate is appointed sole Arbitrator in these petitions to adjudicate the dispute between arbitrator.” the parties. 12. The fee of the learned Arbitrator shall be governed by the Fourth Schedule of the Arbitration and Conciliation Act 1996. 13. The learned Arbitrator shall ensure compliance of Section 12 of Arbitration and Conciliation Act 1996 before commencing the arbitration. ARB.P.841 2021 842 2021 & 843 2021 14. With aforesaid directions the above captioned three petitions are accordingly disposed of. SEPTEMBER 20 2021 JUDGE SURESH KUMAR KAIT) ARB.P.841 2021 842 2021 & 843 2021

Writ petition, concerning right and title of Chiefship dispute between two tribal communities allowed: The High Court of Manipur

It is mandatory to inform the original owner regarding the order stay to transfer the ownership of a particular village to another person. Such chiefship disputes involve a big question of fact and should be perused with extra detail before passing an order in favor of any of the parties. The aforesaid was followed by the High Court of Manipur while adjudicating the case of Mr. Shri Lungkhothang Singson v. The State of Manipur 7 Ors. [WP(C) NO.725 of 2010] which was decided by a single judge bench comprising Justice M.V. Muralidaran on 21st June 2021. The facts of the case are as follows. The second petitioner is the grandson of the original petitioner and claimed to be the chief of Lungthulien village. The third respondent is a resident of Renkai village and the grandson of former Chief of Senvon village. The third respondent filed a petition and stayed the order of the sub divisional officer that declared the petitioner as the Chief of Lungthulien village claiming that this village is a mace=het of the Senvon village and comes under the same Chiefship. This particular stay order has been challenged by the petitioner in the instant case. It was contended by the respondents that the ancestors of the petitioner shifted to another village and have hence lost their title to the concerned village. Therefore, the concerned village ceased to exist and has since then been managed by the respondents. After impleading the second petitioner, the second petitioner had filed a rejoinder affidavit to the affidavit filed by the third respondent stating that the third respondent is a stranger to Lungthulien village and has no right or interest whatsoever in the Chiefship of the village. Furthermore, when it is undisputed that none of the petitioner’s siblings have raised any objections, the third respondent has no authority at all to raise the issue that the second petitioner being the youngest son has no right to Chiefship of the village.

IN THE HIGH COURT OF MANIPUR AT IMPHAL WP(C) NO.7210 Mr. Shri Lungkhothang Singson aged about 70 years s o Late Siakpu Singson Chief of Lungthulien Village Tipaimukh Sub Division P.O. & P.S. Tipaimukh District Churachandpur Manipur. . Petitioner Versus 1. The State of Manipur represented by the Chief Secretary Government of Manipur. 2. The Deputy Commissioner Churachandpur District Manipur. 3. Mr. Paukhomawi S o Late Paulienmang Singson Chief of Senvon Hill village P.O. & P.S. Parbung Tipaimukh Sub Division District Churachandpur Manipur. …. Respondents HON’BLE MR. JUSTICE M.V. MURALIDARAN For the Petitioner s For the Respondent s Mr.N. Surendrajit Advt. Mr. Phungyo Zingkhei Advt. Mr.S. Nepolean GA. Date of reserved Date of Judgment & Order Wpc no.7210. Page 1 JUDGMENT & ORDER The writ petition was originally filed by the petitioner Lungkhothang Singson seeking to quash the order dated 30.6.2010 passed by the Deputy Commissioner Churachanpur in Hill Revision Case No. 10 alleging that his father was the recorded Chief of Lungthulien Village and while he was unable to function as Chief of the Village the father of the petitioner allowed the petitioner to function as the chief of the village under an authorization letter dated 27.2.1989. Since the date of expiry of the father of the petitioner on 05.03.1989 the petitioner being the eldest son he has been functioning as the Chief of Lungthulien village without any interruption and his name has also been recorded as the Chief of the village by the Sub Divisional Officer vide order dated 11.02.2010. However the third respondent who is the resident of Renkai village and the grandson of former Chief of Senvon village filed a petition before the Deputy Commissioner Churachandpur challenging the order of recording the name of the petitioner as Chief of the Lungthulien village and obtained an order of stay on 30.6.2010 thereby staying the operation of the order dated 11.02.2010 passed by the Sub Divisional Officer Tipaimukh. Challenging the said order dated 30.06.2010 the petitioner Lungkhothnag Singson filed the writ petition. Wpc no.7210. Page 2 Pending writ petition Lungkhuthang Singson died and kamminlun Singson was added as the second petitioner. According to the second petitioner he inherited the Chiefship of Lungthulien village from his grandfather late Lungkhothang Singson through his father Sehkholal Singson. It is stated that since the father of the second petitioner has been incapable of being the Chief of the said Lungthulien village due to his ill health and by customary law the right and title of Chiefship was inherited in the family through the male lineage. Accordingly the right and title of the Chiefship of Lungthulien village has been transferred by Sehkholal Singson to the second petitioner by way of deed of transfer of Chiefship on 03.10.2016 and accordingly the second petitioner is proceeding with the writ petition. The power of attorney holder of the third respondent filed affidavit in opposition on 31.5.2013 stating that the real dispute between the original petitioner and the third respondent is in respect of the land and title thereto and other rights pertaining to the office of Chiefship etc. The original petitioner ought to have gone to the Civil Court for establishing his right and title. It is stated that the Senvon Hill village is Kuki Tribal village established in or about 1906 with Kamkholun as the Founder Chief. Though the village has its hamlet machets such as Lungthulien Rovokot Tipaimukh Sipuikom and Sitam having separate village authority each there is no system of having separate Chief of such sub Wpc no.7210. Page 3 villages comprised therein. All these villages are under the high Administrative control and supervision of the Chief of the Senvon village in the administration and management of these villages according to the Kuki custom and usage. It is stated that on the death of Kamkholun Chief of Senvon village his eldest son Chekang succeeded him to the office of Chief and after his death his eldest son Lungkhopao and on the death of his eldest son paulienmang being the heir successor by custom became the Chief of Senvon village and at present the third respondent eldest son of the said paulienmang is the Chief of Senvon village vide order date 30.7.2010 passed by the Deputy Commissioner Churachandpur and his name was recorded in the relevant Touzi Book by the Sub Divisional Officer Tipaimukh. According to the third respondent when the said Lungkhopao had been discharging and carrying out the function and duties of the Chief of Senvon village the biggest Kuki village ever established and he allowed and permitted the said Seiphu Singson second son of the said Kamkholun the great great grandfather of the third respondent to assist him in the administration and management of the village relating to the collection and payment of hill house tax to the Government. Taking advantage of the situation the said Seiphu Singson somehow managed to get his name recorded in the relevant Touzi book as the Chief of Lungthulien village and wrongly shown at serial No. 10 in the list Wpc no.7210. Page 4 of the village in Southern Circle West Sub Division Thanglon tamenglong Circle No. 3 in collusion with the local authorities of that circle while the Senvon village is shown at Serial No. 24 without the knowledge and behind the back of the Chief of Senvon village. It is also stated that said Seiphu Singson along with his family members including the original petitioner left Lungthulien village and shifted to a village called Bethel situated within the sub division Churachandpur during the ethnic clashes between Kuki and Hmar that took place in 1960. They have abandoned their rights and titles to the land and settle therein permanently and Seiphu died in 1989 and with the passage of time the original petitioner Lungkhothang Singson became the Chief of Bethel village and he is still discharging the duties and functions as such Chief thereof. According to the third respondent Lungthulien village being a sub village of the main Senvon village ceased to exist since 1960 in the manner as stated above and where after the third respondent before him his predecessor in interest have taken absolute control of the said sub village and since then they have been in exclusive physical possession and enjoyment thereof by doing cultivation in arable areas maintaining and preserving forest and extracting forest produce thereform and by permitting his villagers to construct residential houses thereon till date adversely to the knowledge of the said Seiphu and the Wpc no.7210. Page 5 original petitioner. In fact the original petitioner is no longer the resident of Lungthulien village. In the affidavit the third respondent denied that the original petitioner became the Chief of Lungthulien village on the death of his father and on his application for recording his name as a Chief of that village the SDO Tipaimukh granted the order dated 11.2.2010 without giving notice and behind the back of the Chief of Senvon village. Since the second respondent alone is the competent authority to recognize or de recognise Chiefship in Hill villages the said order of SDO dated 11.02.2010 is null and void and being one passed without any legislative competence and jurisdiction. Accordingly the third respondent filed an application before the Deputy Commissioner for setting aside the order passed by the SDO. The Deputy Commissioner by the impugned order of the SDO Tipaimukh in Hill Revision Case No. 10. After impleading the second petitioner the second petitioner has filed a rejoinder affidavit to the affidavit filed by the third respondent stating that the third respondent is a stranger to Lungthulien village and has no right or interest whatsoever in the Chiefship of the village. Furthermore when it is undisputed that none of the petitioner’s siblings have raised any objections the third respondent has no authority at all to raise the issue that the second petitioner being the youngest son has no right to Chiefship of the village. Wpc no.7210. Page 6 The third respondent filed reply affidavit stating that the second petitioner never inherited the Chiefship of Lungthulien village from his grandfather late Lungkhothang Singson. It is recognized and recorded that the third respondent as the Chief of Senvon and Lungthulien village is one of the machet villages of senvon and there is no any Chief other than the third respondent. It is stated that as per the Kuki customary law the Chiefship is inherited by the natural son from his natural father and Sheikholal father of the second petitioner has the Chiefship of Bethel village Lungkhothang Singson who was the original writ petitioner. The question of the second petitioner claiming to be the Chief of Lungthulien village has no substance and therefore the writ petition is liable to be dismissed. Assailing the impugned order dated 30.6.2010 staying the order of the Sub Divisional Officer Tipaimukh whereby transferring the Chiefship of Lungthulien village in favour of the original petitioner Lungkhothang Singson the learned counsel for the second petitioner contended that the second petitioner inherited the Chiefship of Lungthulien village from his grandfather late Lungkhothang Singson through his father Sehkholal Singh and since the father of the second petitioner incapable of being the Chief of Lungthulien village due to his ill health and by customary law the right and title of Chiefship was inherited in the family through the male lineage. Accordingly the right and title of the Wpc no.7210. Page 7 Chiefship of Lungthulien village has been transferred by sehkholal Singson to the second petitioner by way of deed of transfer of Chiefship dated 03.10.2016. The learned counsel further submitted that the third respondent is a stranger to the Lungthulien village and he has no right or interest whatsoever in the Chiefship of Lungthulien village and that the third respondent obtained the impugned order of stay behind the back of the grandfather of the second petitioner and therefore the impugned order is not sustainable in the eye of law and the same is liable to be set aside and that the right and title of the Chiefship of second petitioner in respect of Lungthulien village has to be confirmed. Per contra the learned counsel for the third respondent submitted that the second petitioner never inherited the Chiefship of Lungthulien village from his grandfather and that it is recognized and recorded that the third respondent as the Chief of Senvon village by the competent authorities and Lungthulien village is one of the machet villages of Senvon and that there is no any Chief except the third respondent. He would submit that in fact the father of the second petitioner namely Sheikholal Singson son of Lungkhothang Singson is the Chief of Bethel village and as per the Kuki customary law the Chiefship is inherited by the natural son from his natural father and that the father of the second petitioner has the Chiefship of Bethel village Wpc no.7210. Page 8 Lungkhothang Singson who was the original writ petitioner and not Lungthulien The learned counsel for the third respondent further submitted that both the father and son cannot be a Chief at the same period of time and that the question of the second petitioner claiming to be the Chief of Lungthulien village has no basis at all. Heard the learned counsel for the respondent State also. This Court considered the submissions made by the learned counsel for parties and also perused the materials available on record. The writ petition was originally filed by Lungkhothang singson challenging the order dated 30.6.2010 thereby staying the transfer of Chiefship of Lungthulien village in favour of Lungkhothang Singson dated 11.2.2010 of the SDO Tipaimukh. It appears that by the order dated 11.2.2010 the SDO Tipaimukh ordered transfer of Chiefship of Lungthulien village in favour of the original writ petitioner Lungkhothang Singson. Aggrieved by such transfer the third respondent herein filed Hill Revenue Case No. 2 of 2010 before the Deputy Commissioner Churachandpur. By the order dated 30.6.2010 impugned in the writ petition the Deputy Commissioner Churachandpur stayed the order dated 11.2.2010 of the SDO Tipaimukh. Admittedly the said order of stay has been Wpc no.7210. Page 9 passed by the Deputy Commissioner Churachandpur without notice to the original writ petitioner Lungkhothang Singson. When the order transferring the Chiefship of Lungthulien village was issued in favour of the original writ petitioner he should be heard before staying the said order. According to the third respondent there are as may as five various villages such as Lungthulien Tipaimukh Sitam Sepuikon and Robokot lying and comprised in Senvon village of which the third respondent is the Chief. All the above five villages are under the high administrative control supervision of the Chief of Senvon village. Since the third respondent claims that Lungthulien village is one of the machet village of Senvon and the third respondent is the Chief of Senvon village and also there is no Chief of Lungthulien village the said disputed question of fact cannot be decided in this writ petition. That apart the second petitioner now claims that the impugned order stay transferring the Chiefship of Lungthulien village has been passed without hearing the original petitioner who is the grandfather of the second petitioner. When the second petitioner claims that he is the Chiefship of Lungthulien village and the third respondent is a stranger to Lungthulien village it would be appropriate to remit the matter to the SDO concerned to decide the factual aspects of the matter in detail upon hearing the parties afresh. As stated supra while staying the order dated 11.02.2010 of Wpc no.7210. Page 10 the SDO Tipaimukh the Deputy Commissioner Churachandpur has not heard the original writ petitioner and his families. It is also the say of the third respondent that the second petitioner never inherited the Chiefship of Lungthulien village from his grandfather late Lungkhothang Singson. In such view of the matter it would be appropriate to direct the matter to be heard by the SDO Tipaimukh and pass appropriate order in this regard as two parties claim Chiefship of Lungthulien village. Accordingly a) the writ petition is allowed and the stay order dated 30.06.2010 passed by the Deputy Commissioner Churachandpur District in Hill Revision Case No. 10 and the order dated 11.2.2010 passed by the SDO Tipaimukh are set aside and the matter is remitted to the SDO Tipaimukh. b) The SDO Tipaimukh is directed to issue notice to both the second writ petitioner and third respondent calling upon them to establish their case of Chiefship of Lungthulien village and upon hearing both parties and upon affording opportunity of hearing to both sides the SDO Tipaimukh is direct to pass appropriate orders in accordance with law in Wpc no.7210. Page 11 such regard. Such an exercise shall be done within a period of three months from the date of receipt of a copy of this order. c) No costs. The Registry is directed to issue copy of this order to both parties and other Government officials concerned to their whatsapp e.mail. JUDGE John kom Wpc no.7210. Page 12

The philosophy of sentencing is undergoing change and should not be confined to deterrence: High court of Sikkim

Petitioner seek a direction to the respondent to recall of witness power to be invoked to meet the ends of justice for strong and valid reasons with cautions and circumspection, and the same issue was held in the judgement passed by a division bench judge HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE, THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE. In the matter Hem, Kumar Chettri versus  State of Sikkim [ Crl.A. No.06 of 2021] dealt with an issue mentioned above. The Appellant, aged about 40 years, is alleged to have raped the victim, aged about 79 years, on 15.12.2019, at around 12 p.m. On 16.12.2019, at 1.30 p.m., the victim was medically examined and the Doctor found that she was bleeding from her genital. Charge-Sheet was submitted against the Appellant under Sections 376/457/506 of the Indian Penal Code, 1860 (for short, the “IPC”), on completion of investigation by P.W.11, the Investigating Officer of the case. The Learned Counsel for the parties have been heard and all the relevant documents perused as also the impugned Judgment and Order on Sentence. As per the victim, she lives alone and that night when she retired to bed at around 00.30 hours after finishing her household chores she heard some sounds. She saw her neighbour, the Appellant, breaking into her room through the gap between the roof and the windows. He turned off the light, disrobed her forcefully and sexually assaulted her. The court perused the facts and arguments presented, it was the opinion In light of the discussions which have emanated hereinabove, we do not find any mitigating circumstance to reduce the sentence imposed on the Appellant. We also find no reason to interfere with the findings of the Learned Trial Court. The impugned Judgment and Order on Sentence are upheld.

THE HIGH COURT OF SIKKIM : GANGTOK Criminal Appeal Jurisdiction) DATED : 10th December 2021 DIVISION BENCH : THE HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI JUDGE THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN JUDGE Crl.A. No.021 Appellant Hem Kumar Chettri versus Respondent State of Sikkim Appeal under Section 374(2) of the Code of Criminal Procedure 1973 Appearance Mr. Gulshan Lama Advocate for the Mr. Thinlay Dorjee Bhutia and Mr. Yadev Sharma Additional Public Prosecutor with Mr. Sujan Sunwar Assistant Public Prosecutor for the respondent. JUDGMENT Meenakshi Madan Rai J. The Appellant aged about 40 years is alleged to have raped the victim aged about 79 years on 15.12.2019 at around 12 p.m. On 16.12.2019 at 1.30 p.m. the victim was medically examined and the Doctor found that she was bleeding from her genital. Charge Sheet was submitted against the Appellant under Sections 376 457 506 of the Indian Penal Code 1860 on completion of investigation by P.W.11 the Investigating Officer of the case. Learned Counsel for the Appellant before this Court submitted that on account of the inconsistency of the victim‟s statement the offence would fall under Section 354 of the IPC and not under Section 376(2)(l) of the IPC. While asserting that Crl.A. No. 021 2 Hem Kumar Chettri vs. State of Sikkim the Appellant was not guilty of the offence of rape it was urged that the sentence of imprisonment imposed by the Learned Trial Court for the offence of rape extending to 15 years be reduced to 10 years i.e. the minimum period prescribed by the provision should it be found by this Court that the offence was indeed committed. That mitigating circumstances exist for such reduction viz. the Appellant is married and has two children both of whom are studying and are financially dependent on him. His wife is a home maker and on account of his incarceration his entire family is financially dependent on his aged father. Reliance was placed on State of Himachal Pradesh vs. Nirmala Devi1 and it was contended that the philosophy of sentencing is undergoing change and should not be confined to deterrence other aspects such as mental health and mitigating circumstances ought to be taken into consideration. The attention of this Court was drawn to the Judgment of the Hon‟ble Supreme Court in Rai Sandeep alias Deepu vs. Stateof the IPC as no medical report was furnished by it to establish that the victim was physically challenged as stated by her in her evidence. Hence the assailed Judgment and Order on Sentence be set aside and the Appellant acquitted of the offence charged. In the 7 SCC 262 8 SCC 21 Crl.A. No. 021 3 Hem Kumar Chettri vs. State of Sikkim alternative the offence reduced to one under Section 354 of the IPC. However he be found guilty of the offence under Section 376 of the IPC the sentence be reduced as prayed. Per contra it was the argument of the Learned Additional Public Prosecutor that there is no question of the evidence of the victim being inconsistent. That there was no eye witness to the incident and P.W.2 has been categorical and consistent in her claim that the Appellant committed the offence. That the evidence of P.W.4 reveals that she had heard the victim shouting on the night of 15.12.2019 which was the night of the incident and the next morning she found the victim in the kitchen with her mother in law. The victim then told her that she had shouted for help the whole night but P.W.4 had not woken up. P.W.5 mother in law of P.W.4 and the victim had in fact gone to the house of the Appellant to inform his parents of the incident and to the house of one “D.B. Police” the same night to lodge a complaint but returned as he was not at home. The victim had also told P.W.4 that the Appellant had sexually assaulted her. That P.W.5 also clearly supported the Prosecution case. Her evidence revealed that P.W.2 had approached her at 1 p.m. the same night of the incident and she along with the victim had gone to the house of one “D.B. Police” and also to the house of the Appellant thereby fortifying the evidence of P.W.2. The Learned Trial Court in its impugned Judgment at Paragraph 44 has reflected that the Defense Counsel at the time of arguments admitted that the victim was physically challenged. In light of these circumstances the impugned Judgment requires no interference and the appeal be dismissed. Crl.A. No. 021 4 Hem Kumar Chettri vs. State of Sikkim The Learned Counsel for the parties have been heard and all the relevant documents perused as also the impugned Judgment and Order on Sentence. The Appellant is aggrieved by Judgment dated 18.02.2021 in S.T. Case No. 01 2020 in the Court of the Learned Judge Fast Track South & West Sikkim at Gyalshing whereby he was convicted of the offence under Sections 376(2)(l) and 457 IPC. The assailed Order on Sentence dated 18.12.2021 incarcerated him as follows imprisonment for a term of fifteen years under Section 376(2) IPC and shall pay a fine of Rs.10 000 only. In default of payment of fine the convict shall undergo simple imprisonment for a term of one under Section 457 IPC the convict is sentenced to undergo rigorous imprisonment for a term of five years and to pay a fine of Rs.2 000 Rupees Two Thousand) only. In default of payment of fine the convict shall undergo simple imprisonment for a term of six months. c. Both sentences shall run concurrently.” The Prosecution case summarized is that on 16.12.2019 at 10.30 hours the victim P.W.2 lodged an oral complaint before the Melli Police Station reduced to writing by the SHO Melli Police Station457 and 506 of the IPC who pleaded “not guilty” to the Charges and claimed trial. The Prosecution thus examined 11 witnesses to prove its case on closure of which the Appellant was examined under Section 313 of the Cr.P.C. The final arguments of the parties were heard thereafter and the Judgment and Order on Sentence pronounced. While considering the evidence on record and the merits of the Prosecution case the word employed by the Learned Counsel for the Appellant for describing the evidence of P.W.2 appears to be a misnomer considering that her evidence reflects no inconsistency at all. She has deposed inter alia as follows “ .. On 15.12.2019 around midnight while I was sleeping in my room Hem Kumar Chettri entered my room through the ventilation. When I started screaming out for my neighbors he told me not to shout and also put off light in my room Thereafter he undressed me and pushed me down got on top of me and raped me. He then told me “Mo Mamm Lai Kei Gardina” P.W.10 was the Medical Officer who examined P.W.2. On her local examination he found the following “ … There was no external injuries seen No fresh injuries were noted in skin. Pubic hair present. Per vagina bleeding was present due to forceful penetration. The bleeding was fresh. Hymen also not intact due to forceful penetration. This injury was also fresh.” 11] His evidence thus revealed that the vaginal bleeding of the victim was not due to any infection but on account of forceful penetration duly fortifying the evidence of the victim P.W.2 thereby establishing the offence of rape committed by the Appellant along with the offence under Section 457 of the IPC. Even if no certificate of physical disability was furnished by the Crl.A. No. 021 7 Hem Kumar Chettri vs. State of Sikkim Prosecution to prove the fact of disability of the victim it is undisputed that she was around eighty years old which itself suffices to not only hold her testimony regarding the state of her health as the truth but also to believe that she would at her age not be physically agile. Besides the Learned Trial Court has recorded in Paragraph 44 of the impugned Judgment that the Counsel for the accused had conceded to the claim of physical disability of the victim during the course of arguments. The Learned Trial Court has also recorded the physical disability of the victim was evident when the victim appeared before the Court for recording her evidence. 12] In light of the discussions which have emanated hereinabove we do not find any mitigating circumstance to reduce the sentence imposed on the Appellant. We also find no reason to interfere with the findings of the Learned Trial Court. 13] The impugned Judgment and Order on Sentence are upheld. 14] Appeal dismissed. 15] No order as to costs. 16] Copy of this Judgment be transmitted forthwith to the Appellant in Jail. ( Meenakshi Madan Rai ) Judge Judge 10 12 2021 10 12 2021 Approved for reporting : Yes yb

No mala fide can be attributable to the doctors constituting the Medical Boards, the opinion formed by them to be preferred to the opinion of private or government doctors: Delhi High Court

The petitioner having accepted the eligibility criteria condition and participated in the selection process cannot now cry “foul” only because he has failed to meet the prescribed medical standards. This was said in the case of Si Gd Pradeep V Union Of India & Ors [W.P.(C) 292/2021] by Mr. Justice Manmohan and  Ms. Justice Asha Menon in the High Court Of Delhi. The facts of the case date back to 10.12.2020 when the petitioner was declared medically unfit by the Review Medical Board after going through the Colour Doppler Test. He claims that he was never communicated either verbally or in writing as to the outcome of the said test, but he was orally informed that he was found medically unfit on the ground of “Varicose Veins Right Lower Limb”. On 12th December 2020 got himself examined by way of Colour Doppler Right Lower Limb at Rajasthani Diagnostic and MRI Centre and was found to be normal by the Specialist Government Medical Officer of the Government Hospital. The medical report from RMB acts as a hindrance to his post of AC/GD. Hence, the present writ petition. The petitioner contended that great wrong had been perpetrated on the petitioner as the respondents had applied standards that were meant for ‘entry-level direct recruitment candidates’ to the while the petitioner admittedly had been in service since 2012 and was in SHAPE-1 and had applied to the post of AC/GD only for promotion and had to be assessed medically on standards prescribed for promotees. Secondly, they contended that this court in several cases, where the candidates had been declared medically unfit on the plea of “Varicose Veins”, had directed the respondents to conduct a medical examination by an independent Board constituted by the Commandant, Army Hospital (R&R) and that a similar relief be also extended to the petitioner and he be directed to be examined at the R&R Hospital. The Court opined that “The very fact that the petitioner has endorsed the report of the RMB to the effect that he had undertaken surgery for “Varicose Veins” confirms the fact that he was suffering from that medical condition. The conclusions drawn by the first Medical Board and the RMB, therefore, are not incorrect or based on erroneous assessment”.

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 25th March 2021 Pronounced on: 20th April 2021 W.P.(C) 292 2021 SI GD PRADEEP Through: Mr.N.L.Bareja Advocate Petitioner UNION OF INDIA & ORS. Respondents Through: Mr.Shashank Bajpai Sr.Panel Counsel for UOI HON BLE MR. JUSTICE MANMOHAN HON BLE MS. JUSTICE ASHA MENON JUDGMENT ASHA MENON J: This petition has been filed with the following prayers: Issue an appropriate writ order(s) or directions(s) in the nature of: i) Certiorari by quashing setting aside the impugned letter dated 19.11.2020 and the decision dated 10.12.2020 passed by the RMB against the petitioner in the Review Medical Examination held on 10.12.2020 wherein the petitioner was declared medically unfit. W.P.(C) 292 2021 Mandamus directing the respondents to consider the case of the petitioner by treating him medically fit in medical category SHAPE 1 in terms of the Medical Fitness Certificate issued by the Registered Medical Practitioner in the relevant field who was fully qualified and competent to assess the Medical Fitness of the petitioner after having given him the appropriate treatment as also in the opinion of the expert on the outcome of the colour Doppler Test held at Delhi as well as Jhunjhunu and in pursuance thereof direct the respondents to issue him the letter of appointment to the post of AC GD in accordance with his position in the merit list drawn on conclusion of the LDCE 2017 18 with all consequential benefits accruing to the petitioner there from or in the alternative direct the conduct of the medical examination of the petitioner by constituting an Independent Medical Board under the aegis of either AIIMS or under Commandant Army HospitalOrder or direct the respondents to keep one vacancy in the post of AC GD reserved for the petitioner for appointment 1n one of the unreserved Vacancies in the CRPF under the scheme for appointment through LDCE 201 7 18 pending finalization of the above noted writ petition. b) Direct the respondents to pay appropriate compensation damages towards the sufferings and mental agony under gone by the petitioner on W.P.(C) 292 2021 account of the unjustifiable acts on the part of the respondents for depriving the petitioner of his rights for appointment to the post of AC GD through LDCE. c) Direct the respondents to pay costs of this petition to the petitioner for compelling him to approach this Hon ble Court for indulgence to seek justice. d) Pass such other and further order(s) as this Hon ble Court may deem fit and proper in the facts and circumstances of the case in favour of the petitioner to meet the ends of justice.” The brief facts as are relevant for the disposal of the present case are as follows. The petitioner was selected for the direct appointment to the post of SI GD through CPOs Examination 2011 on 27th July 2012 and was allocated to the Central Reserve Police Force CRPF Laturwhere he performed his duties as Training Instructor till March 2019 when he was posted to the CTC Neemuchwhere he is presently serving. On 28th June 2019 an advertisement was issued by the respondents inviting applications to fill 135 vacancies i.e. 87 vacancies in the BSF 27 in the CRPF and 21 in the SSB from serving officers of the rank of SI GD Inspector GD and Subedar Major GD for selection to the post of Assistant CommandantGD in the said Central Armed Police CAPFs) through Limited Departmental Competitive W.P.(C) 292 2021 Examination2017 18 as per their respective RRs. The petitioner responded to this advertisement by submitting his application and was shortlisted for the Written Test on 2nd February 2020. The petitioner qualified the Written Test and also underwent the Physical Standard Test PST) and Physical Efficiency Teston 8th February 2020 at 39 Bn. ITBP Lakhnawali Camp Greater Noidawhich too he cleared. He then appeared in the Interview and Personality Test which was held from 5th October 2020 to 13th October 2020 for 144 candidates who had qualified the Written Test as well as the PST and PET. On 18th November 2020 the petitioner was medically examined at Composite Hospital New Delhi and was declared unfit on the ground of being overweight by 8 KGs and being a case of “Varicose Veins Right Lower Limb” vide memorandum dated 19th November 2020 issued by Dr.Shekhar Kansara Medical Officer Selection Board LDCE. Since the petitioner was entitled to apply for a Review Medical Examination after obtaining necessary fitness certificate from a Registered Medical Practitioner within 15 days i.e. by 3rd December 2020 the petitioner underwent an operation at Sama Hospital Sri Fort Road New Delhi on 19th November 2020 and thereafter got the requisite fitness certificate from the Registered Medical Practitioner serving at Bhagwan Das KhetanHospital a Govt. Hospital at Jhunjhunu. The petitioner appeared for the Review Medical Boardon 10th December 2020 at CH CRPF New Delhi and was subjected to Colour Doppler Test on 11th December 2020. He claims that he was never communicated either verbally or in writing as to the outcome of the said Colour Doppler Test but he was orally informed that he was found W.P.(C) 292 2021 medically unfit on the ground of “Varicose Veins Right Lower Limb”. The petitioner nevertheless on 12th December 2020 got himself examined by way of Colour Doppler Right Lower Limb at Rajasthani Diagnostic and MRI Centre Jhunjhunu and was found to be normal by the Specialist Government Medical Officer of the Government Hospital Jhunjhunu who also issued to him a Certificate dated 13th December 2020. In this background Sh.N.L.Bareja learned counsel for the petitioner submitted that great wrong had been perpetrated on the petitioner as the respondents had applied standards that were meant for ‘entry level direct recruitment candidates’ to the post of GOs NGOs in the CAPFs and Assam Rifles while the petitioner admittedly had been in service since 2012 and was in SHAPE 1 and had applied to the post of AC GD only for promotion and had to be assessed medically on standards prescribed for promotees. Learned counsel also submitted that this court in several cases where the candidates had been declared medically unfit on the plea of “Varicose Veins” had directed the respondents to conduct a medical examination by an independent Board constituted by the Commandant Army Hospitaland that a similar relief be also extended to the petitioner and he be directed to be examined at the R&R Hospital. Learned counsel also relied on the judgment of the Supreme Court in SLP Nos.2332 2333 2018 titled Ct CD Rambabu Chandrawanshi v. Union of India and Ors. to submit that the order of this court in W.P.(C)4765 2015 filed by CT DC Rambabu Chandrawanshi declining to direct the said petitioner to be medically examined by a RMB had been W.P.(C) 292 2021 set aside by the Supreme Court and that this court ought to be guided by the view taken by the Supreme Court. Sh.Shashank Bajpai learned counsel for the respondents pursuant to our directions on 8th January 2021 had placed on record the photocopy of the report of the RMB dated 10th December 2020 as well as the copies of the judgments passed in W.P.(C) 10783 2020 and W.P.(C) 9191 2020. 9. We have heard both the learned counsel and have perused the record and find that on 18th November 2020 when the petitioner was examined he was found to be overweight by 8 KGs and was found with “Varicose Veins Right Lower Limb”. The Report of the RMB held on 11th December 2020 records that the petitioner was found unfit on account of being a case of “OPTD varicose veins RT Leg” wherein the petitioner has also recorded “maine varicose veins ka surgery karwaya hai”. The Board then recorded “as per guidelines optd varicose veins is unfit as basic defect remains unchanged” and declared the petitioner unfit. 10. There is no dispute that the existence of “Varicose Veins” is considered as unfitness under the Uniform Guidelines for Medical Examination. The petitioner had been examined through Colour Doppler and was found to be suffering from “Varicose Veins Right Lower Limb”. The very fact that the petitioner has endorsed the report of the RMB to the effect that he had undertaken surgery for “Varicose Veins” confirms the fact that he was suffering from that medical condition. The conclusions drawn by the first Medical Board and the RMB therefore are not incorrect or based on erroneous assessment. So neither of the two Reports can be rejected on that ground. In any case this court in various W.P.(C) 292 2021 cases including in W.P.(C) 9191 2020 titled Vikash Choudhry v. Union of India & Others and W.P.(C) 10783 2020 titled KM. Priyanka v. Union of India & Others copies whereof have been filed by the learned counsel for the respondents has held that when no mala fide can be attributable to the doctors constituting the Medical Boards the opinion formed by them that a candidate is not medically fit for appointment is to be preferred to the opinion of private or government doctors to the contrary as the doctors belonging to the CAPFs are well aware of the demands of the duties of the Forces and the terrain in which they have to work and the challenges they are required to face. 11. With regard to the contention of the learned counsel for the petitioner that the medical standards for the LDCE could not be equated to the requirements for candidates of direct recruitment process since LDCE was a promotion and that the standards applicable for promotees alone should be made applicable to the LDCE candidates this is an issue that has been settled by this court in W.P.(C)2591 2020 titled Pavnesh Kumar v. Union Of India & Ors.. In that case also a plea had been raised that the petitioner having applied for LDCE the BSF could not apply different medical standards for promotion to the same post of SI(GD) through general promotion and through LDCE. Reliance was also placed on two judgments of this court in Man Singh v. Union of India 2012 SCC OnLine Del 6360and Ajay Pandey v. Union of India MANU DE 1721 2014to contend that the Recruitment Rules and the guidelines for promotion which would apply to appointments through LDCE would have to be those which were applicable to appointments by promotion. The submissions were rejected by the court. The following W.P.(C) 292 2021 observations of the court apply on all fours to the facts of the present case and are worth reproducing as below: “20. xxx xxx D) The sheer difference in age in the two modes of appointment even though to the same rank one by LDCE and the other in the due course in our view is sufficient for the two to be treated differently and to be not placed at par. Through LDCE Constables even though already working in BSF can aspire to be an SI much before 32 years of age and which rank they would otherwise in the due course attain in all probability not before 50 years of age if not more. E) There is a sea of difference between an SI in his 30s and an SI in his 50s. Though on paper their job profile may be same but experience of life shows the duties allocated to the two out of the same job profile to be entirely different. Normal wear and tear of human body with age takes a toll on physical strength and efficiency and it cannot possibly be disputed that the tasks which a person in his 30s is able to perform are not ordinarily performable by the same person in his 50s. xxx xxx G) LDCE is a means of providing an opportunity to those who owing to compulsions of life have been forced to commence working life at a comparatively young age of fulfilling their dreams and aspirations. Such persons are not condemned to live the entire life of drudgery by being not in a position to resign from service already in hand to fulfill their dreams. LDCE offers them an opportunity to while holding on to their job in hand if better than their peers fulfill their dreams without risking their jobs. It is only after they are successful that they are required to resign from their jobs in hand.” W.P.(C) 292 2021 12. Reliance was also placed by the court on another decision of this reported as Sunil Kumar Singh v. Union of India MANU DE 0428 2017to conclude that for eligibility LDCE have to be treated at par with direct recruitment and not with promotion. As in those cases so also in the present case the eligibility criteria were declared in the advertisement for filling the vacancies. In the present case the advertisementnotified that the candidates who qualified the written examination PST PET and appear in the interview process were to be shortlisted for undergoing medical examination which was to be conducted as per the “Revised Medical Guidelines 2015”. The petitioner having accepted this condition and participated in the selection process cannot now cry “foul” only because he has failed to meet the prescribed medical standards. 13. The judgment in Rambabu Chandrawanshi has no application to the facts of the present case. Following the judgment in Pavnesh Kumar we find no force in the contention of the learned counsel for the petitioner that the LDCE should be treated at par with the promotees who get promoted in due course at a much later stage in their career and at a far more advanced age and not with direct recruits who are younger and of a similar age as the LDCE candidates. 14. Before concluding we must deal with the submission of the learned counsel for the petitioner that he was in SHAPE 1 as per the Annual Medical Examination held on 5th September 2020 and could not have been found unfit by the Medical Boards two three months later. The advertisement in question once again provides the answer. In para 8 of W.P.(C) 292 2021 the advertisementit is notified as follows: “Medical Standards: i) The candidates must be in Medical Category SHAPE 1. It should however be clearly understood that the Government of India reserves to itself absolute discretion to reject or accept any candidate after considering the report of the Medical Board. iii) Medical examination will be conducted as per revised Medical Guidelines issued by MHA dated 20 05 2015 and amended from time to time for recruitment of GOs and NGOs in the CAPFs and AR.” 15. Thus it is clear that being in SHAPE 1 is a mandatory condition to apply to appear for and participate in the selection process. It does not exempt the candidate from being medically examined by the Medical Board on clearing the examinations. Rather para 8 proclaims loud and clear that the Government of India has reserved to itself the “absolute discretion” to reject or accept a candidate based on the reports of the Medical Boards. These conditions were never challenged by the petitioner. On the contrary he willingly accepted all these conditions including that he would be assessed for medical fitness on standards prescribed for recruitment of GOs and NGOs and applied for and participated in the selection process. He was aware that he is an in service candidate and appearing for the LDCE. But he made no grievance at the time of applying for the vacancy of AC GD that the medical standards prescribed were improper. W.P.(C) 292 2021 16. In the result the appeal is dismissed along with pending applications if any as being devoid of merits. ASHA MENON J MANMOHAN J APRIL 20 2021 s W.P.(C) 292 2021

If the advance payment check is dishonoured, criminal responsibility under Section 138 shall not arise: Jharkhand High Court

Payment by check in the form of an advance payment has been stated, that there was no outstanding liability at the time the check was drawn. As a result, no case under section 138 of the Act may be brought under the Negotiable Instruments Act, 1881. The judgment was passed by the High Court of Jharkhand in the case of Rang Lal Ram vs The State of Jharkhand [Cr. Revision No. 156 of 2012] by Single Bench consisting of Hon’ble Shri Justice Anubha Rawat Choudhary. The facts of the case are that the accused approached the complainant for financial accommodation. The accused agreed to give to the complainant 40% of the profit to be accrued out of said purchase orders accused and issued a cheque of Rs. 49,500/. But the same was dishonoured on account of insufficient fund. Further, the said notice was sent to the accused through the registered post as well as through courier service. Learned counsel for the petitioner submits that it was the specific case of the complainant himself that he was to invest in the 2 business of the accused and in place of that, he would be entitled to get 40% profit. He further submits that there have been no accounts regarding profit and the cheques were issued only by way of security and not against any existing debt or liability. The further point which has been argued by the learned counsel for the petitioner is that it has come in the trial court’s judgment that the notice was served upon the son of the petitioner and therefore it is submitted that the notice was not served upon the petitioner, and accordingly both the judgments are perverse and fit to be set aside. Learned counsel for the respondents submits that that there is no illegality or perversity in the impugned judgments passed by the learned courts below regarding finding of service of notice upon the petitioner. He submits that there can be several ways in which the accused can avoid service of notice and in such a situation, he has an opportunity to pay the amount by stating that he had not received the notice regarding bouncing of a cheque. He further submits that there is no scope for re-appreciation of evidence particularly when the notice as per the petitioner himself was served upon his son who was residing with him. Relying on the Apex court judgment Indus Airways Private Limited and Others vs. Magnum Aviation Private Limited and Another, it was held that “if the cheque towards advance payment is dishonoured, it will not give rise to criminal liability under Section 138 of the act.”

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 1512 Rang Lal Ram son of Late Jitan Ram resident of Industrial Area Balidih P.O. Balidih P.S. Marafari District Bokaro 1. The State of Jharkhand 2. Balmiki Choudhary son of Late Indradeo Choudhary resident of Azad Nagar P.O. Shivandih P.S. Marafari District Bokaro … Opp. Parties … … … CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY Mr. A. K. Sahani Advocate For the Petitioner For the Opp. Party State : Mr. P. D. Agarwal Advocate For the Opp. Party No. 2 : Mr. Sanjay Kumar Advocate C.A.V. on 05.03.2021 Pronounced on 16.03.2021 Heard Mr. A. K. Sahani learned counsel appearing on behalf of the petitioner. of opposite party State. of opposite party No. 2. Heard Mr. P. D. Agarwal learned counsel appearing on behalf Heard Mr. Sanjay Kumar learned counsel appearing on behalf This revision has been filed for the following reliefs: “This criminal revision has been filed challenging the judgment dated 01.02.2012 passed by learned Sessions Judge Bokaro in Cr. Appeal No. 81 of 2011 whereby he has affirmed the judgment of conviction and the order of sentence dated 28.07.2011 passed by the learned Judicial Magistrate 1st Class Bokaro in C.P. Case No. 434 of 2004 whereby the petitioner has been convicted for the offence under Section 138 of the Negotiable Instruments Act 1881 and has been sentenced to pay a fine of Rs. 1 20 000 out of which Rs. 60 000 has been directed to be given to the complainant opposite party No. 2 by way of compensation and in default of payment of fine he has been directed to undergo simple imprisonment for a period of six months.” Arguments of the petitioner Learned counsel for the petitioner submits that it was the specific case of the complainant himself that he was to invest in the business of the accused and in lieu of that he would be entitled to get 40% profit. He further submits that there have been no accounts regarding profit and the cheques were issued only by way of security and not against any existing debt or liability. The further point which has been argued by the learned counsel for the petitioner is that it is come in the trial court’s judgment that the notice was served upon the son of the petitioner and therefore it is submitted that the notice was not served upon the petitioner. He submits that these aspects of the matter have not been properly considered by the learned courts below and accordingly both the judgments are perverse and fit to be set Learned counsel for the petitioner has relied upon the judgment passed by the Hon’ble Supreme Court reported in12 SCC 539 para 12 onwards. Arguments of the opposite party State Learned counsel appearing on behalf of opposite party State has relied upon a judgment passed by the Hon’ble Supreme Court reported in14 SCC 750 to submit that there is no illegality or perversity in the impugned judgments passed by the learned courts below regarding finding of service of notice upon the petitioner. He submits that there can be a number of ways in which the accused can avoid service of notice and in such situation the Hon’ble Supreme Court has held that the moment the accused appears before the learned court below he has an opportunity to pay the amount by stating that he had not received the notice regarding bouncing of cheque. He further submits that there is no scope for re appreciation of evidence particularly when the notice as per the petitioner himself was served upon his son who was residing with him. Arguments of the opposite party No. 2 Learned counsel appearing on behalf of opposite party No. 2 submits that the learned courts below have rightly appreciated the materials on record and have come to concurrent findings of fact that all the basic ingredients for offence under Section 138 of the Negotiable Instruments Act 1881 have been satisfied and accordingly there is no scope for re appreciation of evidence and coming to a different finding. He further submits that otherwise also there is presumption of law in connection with existing debt when a cheque is issued and the reverse burden has not been discharged by the petitioner. He submits that there is no illegality and perversity in the impugned judgments and therefore the present petition is fit to be Findings of this Court The prosecution case in brief is that the accused in the month of February 2003 approached the complainant for financial accommodation as the accused was going to receive two work orders. The accused agreed to give to the complainant 40% of the profit to be accrued out of said purchase orders. The complainant advanced Rs. 1 00 000 to the accused for carrying out the job but the accused did not pay back the money to the complainant and in the first week of January 2004 on the request of the complainant the accused issued a cheque of Rs. 49 500 dated 31.01.2004 and promised to pay rest of the amounts in installments within March 2004. The said cheque was deposited in the bank on 07.02.2004 but the same was dishonored on account of “insufficient fund”. On receipt of aforesaid information the complainant immediately met the accused at his residence and told him about the dishonor of the cheque. The accused requested the complainant not to take any legal action and issued a fresh cheque of Rs. 55 000 with a request not to produce the same in the bank till first week of March 2004. On 10.03.2004 another cheque was issued by the accused amounting to Rs. 5 000 . The complainant was requested by the accused to deposit the said two cheques of Rs. 55 000 and Rs. 5 000 after 21.03.2004. On 28.03.2004 the accused requested the complainant not to produce the said cheques before the bank for encashment as the accused was unable to arrange sufficient funds. Thereafter the complainant received a letter from the accused intimating the complainant that cheque issued by the accused was issued as a security and the accused asked for another Rs. 50 000 for investment. After receiving the said letter dated 27.03.2004 of the accused the complainant met the accused at his residence on 07.04.2004 and the accused informed the complainant that he wrote the letter dated 27.03.2004 on wrong advice of his friend and the accused sought three months from the complainant for depositing sufficient fund in his bank account. On 30.07.2004 the accused informed and confirmed that there are sufficient funds available in his bank account . Accordingly the complainant deposited the said two cheques dated 16.02.2004 and 10.03.2004 for an amount of Rs. 55 000 and Rs. 5 000 respectively which were dishonored on 02.08.2004 on account of “insufficient fund”. The complainant issued notice to the accused through his Advocate on 17.08.2004 informing about dishonor of cheques and for payment within 15 days. The said notice was sent to the accused through registered post as well as through courier service. Further case of the complainant is that both the letters were served upon the accused on 19.08.2004 and thereafter more than 15 days had elapsed and the accused did not pay the cheque amounts to the complainant hence the complaint petition was filed. 10. The learned Chief Judicial Magistrate Bokaro summoned the accused on 16.02.2005 to face trial for offence under Section 418 of Indian Penal Code and Section 138 of Negotiable Instruments Act 1881 and subsequently charges were also framed under Section 418 of IPC and Section 138 of Negotiable Instruments Act after recording the evidence before charge. The charges were read over and explained to the accused to which he pleaded not guilty and claimed to be tried. 11. The complainant had examined altogether two witnesses and exhibited the following materials as exhibits: Cheque No. 0265373 dated 30.01.2004 marked as ii) Memorandum issued by Vijaya Bank relating to Cheque No. 265373 dated 30.01.2004 of Rs. 49 500 marked as iii) Deposit slip of cheque No. 265373 marked as Exhibit 1 iv) Cheque No. 265372 dated 16.02.2004 of Rs. 55 000 marked asv) Memorandum issued by Vijaya Bank relating to cheque No. 265371 dated 10.03.2004 of Rs. 5 000 and cheque No. 265372 dated 16.02.2004 of Rs. 55 000 marked as Exhibit 2 1) vi) Deposit slip of cheque No. 265372 in Canara Bank marked asvii) Cheque No. 265371 marked asviii) Deposit slip of cheque No. 265371 in Canara Bank Bokaro Steel City Branch marked asix) The letter dated 27.03.2004 of accused Ranglal Ram written to the complainant Balmiki Chaudhary marked as Exhibit 4) x) Legal notice issued by the complainant to the accused Ranglal Ram marked asxi) Letter issued by the learned Advocate of the complainant to the Sub Post Master Sub Post Office Balidih Bokaro Steel City Bokaro marked as12 SCC 539it was held that payment through cheque in the nature of advance payment indicated that at the time of drawl of the cheque there was no existing liability and accordingly in such circumstances no case under section 138 of Negotiable Instruments Act 1881 can be made out. In the instant case the specific case of the complainant was that he was to invest in the business of the accused and in lieu of that it was agreed he would be entitled to get 40% of the profit and subsequently the accused inter alia issued the aforesaid two cheques. Admittedly in the present case the accused has not led any defence evidence. This Court is of the considered view that considering the nature of transactions between the parties and read with the presumption under Section 139 of the Negotiable Instruments Act that the cheque was issued against discharge of existing debt or other liability the argument of the petitioner that the same was issued by way of security has no legal basis and accordingly this Court finds that the accused could not discharge his onus against the presumption of cheque having been drawn in discharge of liability. 20. This Court further finds that so far as the other point raised by the petitioner that there have been no accounts regarding profit and the cheques were issued only by way of security and not any existing debt is concerned the same is also fit to be rejected. This Court finds that the learned court below has dealt with the plea of the petitioner regarding applicability of Sections 138 to 142 of the N.I. Act and in view of the presumption raised under Section 139 of the N.I. Act the aforesaid plea of the petitioner has no legal basis. Admittedly the petitioner did not adduce any defence evidence. There is no material on record to show that the reverse burden upon the petitioner regarding the cheque having been issued against a debt or any liability has not been discharged at all and therefore the presumption under section 139 of Negotiable Instruments Act 1881 remained intact. Accordingly both the points which have been raised by the petitioner during the course of argument are devoid of any merit and are hereby rejected in absence of any perversity or illegality in the impugned judgments passed by the learned courts below. 22. This Court finds that the learned courts below have not committed any error illegality or perversity in convicting the petitioner for bouncing of the aforesaid two cheques. 23. Accordingly this revision petition is dismissed. 24. The bail bonds furnished by the petitioner is hereby cancelled. 25. Let the records be sent back to the court concerned. 26. Let this order be communicated to the learned court below through FAX e mail. Mukul

Parties are bound by the decision which is not challenged and is in force as on date: High Court of Jammu and Kashmir and Ladakh

Parties are bound by the decision which is not challenged and is in force as on date, therefore, there is no scope as far as quashment of appointment of respondent is concerned on whatsoever grounds unless the trial court decides the issue regarding the factum of residence of respondent which the petitioner believes to be obtained by fraud as upheld by the High Court of Jammu and Kashmir and Ladakh through the learned bench led by Justice Ali Mohammad Magrey in the case of Waheeda Yaseen Khan v. State of JK and others (SWP no. 296/2018 [CM no. 854/2020]) The brief facts of the case are that post of ReT teacher was available in Upgraded School at ward No. 8 of Government Housing Colony, Ompora, Budgam which was notified by the official respondents. The petitioner and respondent no. 10 applied and participated in the section process that commenced subsequently and a panel was drawn in which both petitioner and respondent no. 10 figure at serial no. 3 and 2 respectively. Before appointment is made against the said post, a controversy arose as regards the residential status of the respondent no. 10 who stood at serial no. 2, and had a preferential right of appointment. This led to filing of a vociferous litigation which includes a civil suit filed by the petitioner wherein the selection of respondent no. 10 came to be challenged; Writ petition filed by the respondent no. 10 seeking direction in the name of respondent no. 2 therein to regularize his services as a General Line Teacher for having completed more than five years continuous services as ReT teacher; Writ Petition, filed by the petitioner seeking a direction in the name of respondents 3 and 4 therein to hold an enquiry with regard to Permanent Resident Certificate (PRC) and domicile of respondent no. 8 and to enquire the veracity of the documents submitted by the respondent no. 8 (respondent no. 10 herein) the petitioner had further prayed for a direction in the anme of Crime Branch, Kashmir to hold an enquiry with regard to providing of favorite documents to respondent no. 8 therein. The Hon’ble High Court held, “Parties are bound by the decision which is not challenged and is in force as on date, therefore, there is no scope as far as quashment of appointment of respondent no. 10 is concerned on whatsoever grounds unless the trial court decides the issue regarding the factum of residence of respondent no. 10. On this finding alone, the challenge to appointment in the instant writ petition is not available. But the petitioner is at liberty to lay challenge to the appointment in the pending suit on available pleadings if the law so permits. In light of the above findings based on the judgment/ final order of this court rendered in a writ petition, the petitioner’s right, depending upon the decision of the Civil Court, is reserved to further relief in the said suit. Having regard to what has been stated hereinbefore, the writ petition is disposed of,” Click here to read the Judgment

SWP 296 2018 HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR SWP no. 296 2018 CM no. 854 2020 Reserved on: 20.09.2021 Pronounced on: 23.09.2021 Waheeda Yaseen Khan …PetitionerThrough: Mr Aijaz Ahmad Chesti Advocate v. State of JK and others …Respondents Through: Mr Shah Aamir AAG Mr M. I. Qadiri Sr. Advocate with Mr Ahmad Javed Advocate Coram: Hon’ble Mr Justice Ali Mohammad Magrey Judge JUDGMENT 1. By the instant petition petitioner seeks a writ of certiorari to the effect thatAppointment order of respondent no. 10 as R e T teacher made in terms of Order No. ZEO R RT 11 746 48 dated 28.07.2011 Enquiry issued under No. DCV LRA Enquiry 2011 57 59 dated 28.4.2011 be quashed. Petitioner has further sought a writ of Mandamus to the effect that petitioner be appointed as R e T teacher being next in merit after Respondent no. 8 on the grounds taken in the memo of petition. 2. To appreciate the issue in its proper perspective a brief look at the events as they happened is desired thus: 3. A notification dated 11.11.2010 for appointment of two number of Rehbar e Taleem Teachers for upgraded Primary School at New Colony Ompora Budgam falling under Ward no. 8 issued by respondent no. 7 Zonal Education Officer Budgam was responded to besides others by the petitioner and the respondent no. 10 by offering their candidature for the said posts. The eligibility for the posts in question as prescribed in the Notification was 10+2 or SWP 296 2018 above level with Mathematics and Science background aged between 18 to 37 years as on 01.01.2010. Subsequently a panel was drawn by the Zonal Education Officer and the petitioner is reflected at serial no. 3 therein while as the respondent no. 10 is shown to be at serial no. 2. 4. It is further stated in the writ petition that the respondent no. 10 is hailing from Batpora Handwara and is not a resident of the area for which the posts in question were advertised and the respondent no. 10 by way of fraud has managed his residential status. In that view of the matter the petitioner feeling aggrieved of the inclusion of the respondent no. 10 in the panel filed a representation before respondent no. 3 objecting to the inclusion of respondent no. 10 in the panel. Besides the Welfare Committee of Government Housing Colony Ompora Budgam is also stated to have objected to the inclusion of respondent no. 10 in the panel on the same ground of not being the resident of the area. It is further stated in the writ petition that even the PRC produced in support of his claim by the respondent no. 10 does not show him to be the resident of the Ward No. 8 where the posts are sanctioned but of Ompora Village. 5. Subsequent thereto the petitioner was constrained to file a civil suit questioning the inclusion of respondent no. 10 in the panel. 6. Thereafter the Assistant Commissioner Budgam has vide No. DCB LRA Enquiry 2011 57 59 dated 28.04.2011 returned a finding in an enquiry initiated on the application of the petitioner to the effect that out of the two candidates respondent no. 10 has the PRC of village Ompora Tehsil Budgam while as the petitioner is having PRC of Srinagar therefore respondent no. 10 deserve to be considered for selection to the ReT post. SWP 296 2018 7. Thereafter the interim relief application of the petitioner was rejected by the court below by vacating the interim order dated 12.2.2011 in terms of order dated 29.04.2011 providing therein that the tentative list challenged is not the final list but subject to objections therefore the petitioner plaintiff ought to have filed objections to such tentative list. 8. Thereafter the official respondents issued an appointment order in favour of respondent no. 10 which the petitioner came to know when a writ petition SWP no. 2192 2016 came to be filed by the respondent no. 10 before this Court and the petitioner represented objected to such appointment at every administrative level but could not get justice therefore was constrained to file the writ petition in hand. 9. Aggrieved of the action initiated against him as indicated hereinbefore the petitioner has filed this writ petition to seek the relief as reflected in the foregoing paragraphs on the grounds that: the appointment earned by the respondent no. 10 is on the strength of the fraud documents as such liable to set at naught petitioner being meritorious and eligible to hold the post of R e T teacher advertised in ward no. 10 Govt Housing Colony Ompora Budgam which stands usurped by the respondent no. 10 therefore the appointment order deserves to be quashed the appointment order in question being violative of doctrine of legitimate expectation warrants to be quashed more so when earned by activating fraud vis à vis issuance of fraud documents both in terms of PRC voter list and other allied documents therefore the appointment order in question deserves to be quashed the impugned appointment order is also violative of rule of law equity and good conscience therefore merits to be set at naught SWP 296 2018 10. Upon notice the respondents appeared and filed their reply resisting the claim of the petitioner. 11. The respondents 1 2 6 7 11 and 12 have filed objections to the stand of the petitioner stating inter alia that the petitioner has raised disputed questions of fact which cannot be gone into in a writ petition the impugned order does not suffer from any legal infirmity as such the writ petition is liable to be dismissed that the petitioner has relinquished her right to challenge the impugned order as she did not choose to do so while filing her earlier writ petition and the judgment passed in the said writ petition SWP no. 1268 2017 has earned finality. It is further stated in the reply filed on behalf of the respondents 1 2 6 & 7 that petitioner had filed a writ petition SWP no. 1268 2017 which came to be disposed of by this Court in terms of judgment dated 15.02.2018 providing therein that petitioner can avail the liberty to take recourse to challenge the enquiry with regard to PRC and domicile of respondent no. 10 by way of revision and in case he is of the opinion that the said respondent has obtained the documents by playing fraud he can file FIR against the said respondent before the concerned police. 12. The respondents 11 and 12 have additionally adverted that petitioner was ineligible for the post in question as she did not have the requisite knowledge of Science or Math at 10+2 level which was a pre requisite for appointment as ReT teacher. 13. Heard learned counsel for the parties and considered the submissions made. 14. The admitted facet of the case is delineated in the first instance hereunder thus: SWP 296 2018 A post of ReT teacher was available in Upgraded School at ward No. 8 of Government Housing Colony Ompora Budgam which was notified by the official respondents. The petitioner and respondent no. 10 applied and participated in the section process that commenced subsequently and a panel was drawn in which both petitioner and respondent no. 10 figure at serial no. 3 and 2 respectively. Before appointment is made against the said post a controversy arose as regards the residential status of the respondent no. 10 who stood at serial no. 2 and had a preferential right of appointment. This led to filing of a vociferous litigation which includes a civil suit filed by the petitioner wherein the selection of respondent no. 10 came to be challenged Writ petition SWP no. 2192 2016 filed by the respondent no. 10 seeking direction in the name of respondent no. 2 therein to regularize his services as a General Line Teacher for having completed more than five years continuous services as ReT teacher Writ Petition SWP no. 1268 2017 filed by the petitioner seeking a direction in the name of respondents 3 and 4 therein to hold an enquiry with regard to Permanent Resident Certificateand domicile of respondent no. 8 and to enquire the veracity of the documents submitted by the respondent no. 8the petitioner had further prayed for a direction in the anme of Crime Branch Kashmir to hold an enquiry with regard to providing of favorite documents to respondent no. 8 therein. Apart from these petitions the writ petition on hand as also two more petitions which have been delinked by the order dated 20.09.2021 are also pending on the subject. 15. The petitioner has filed a Civil Suit for declaration and permanent injunction before the court below with the following relief: SWP 296 2018 “In the premises it is therefore prayed that a decree in the nature of declaration may be passed in favour of the plaintiff and against the defendants declaring the plaintiff to be entitled for appointment of RET teacher on the basis of merit in the Govt. Middle School Govt. Housing colony Ompora Budgam Kashmir as being the permanent resident of District Budgam. A decree in the nature of mandatory injunction may be passed in favour of the plaintiff and against the defendants thereby commanding the defendants to issue the appointment order of RET teacher for Govt. Middle School Govt. Housing Colony Ompora Budgam in favour of the plaintiff on the basis of merits as being the permanent resident of district Budgam.” 16. The petitioner has thereafter filed an amended plaint adding a following relief clause therein: “A decree of mandatory injunction in favour of the plaintiff and against the defendants thereby commanding upon defendants 1 to 3 not to issue any order of appointment viz RET Middle School Ompora Housing Colony District Budgam in favour of defendant no. 4.” 17. The Court below for adjudication of the matter has framed following issues for determination: “1. Whether the plaintiff is the Permanent Resident of Ward No. 8and have the eligibility to be appointed as ReT for the newely upgraded school at Ompora Budgam in pursuance of notification challenged in this suit2. Whether the defendant no. 4 is not the permanent resident of Ompora Colony and as such having no right to seek appointment against the said notification OPP 3. Whether the eligibility fixed by the Chief Education Officer Budgam in pursuance of the alleged notification has been fulfilled by the plaintiff defendant no. 4 irrespective areas of their domicile 4. Relief: To what relief the parties are entitled 18. The writ petition no. 2192 2016 filed by the respondent no. 10 seeking regularization of his services has been disposed of by this court in terms of order dated 31st December 2016 with a direction to the respondent no. 2 therein to decide the claim of the petitioner for regularization of his services as General Line Teacher in accordance with the law and rules applicable by a speaking order within a period of two months from the date of receipt of certified copy of SWP 296 2018 the order. While so ordering it has been made clear by the court that it has not expressed any opinion with regard to the merits of the case. 19. The Writ Petition SWP no. 1268 2017 filed by the petitioner seeking the relief as taken note of in the foregoing paragraphs has been disposed of by this Court in terms of order dated 15.02.2018 in the following terms: “Thus from perusal of the relief claimed by the petitioner in the civil suit as well as issues framed by the trial court it is evident that the factum of residence of respondent no. 8 is in issue before the trial court. The petitioner cannot be allowed to prosecute two remedies simultaneously. It is also relevant to mention here that enquiry with regard to PRC and domicile of respondent no. 8 has already been held and in case the petitioner is aggrieved of the same he is entitled to take recourse to challenge the same by way of revision. Needless to state that in case the petitioner is of the opinion that respondent no. 8 has obtained the documents by playing fraud the petitioner is at liberty to file first information report against respondent no. 8 before the concerned official which shall be dealt with in accordance with law by concerned SHO in view of the law laid down in Lalita Kumari v. Government of Uttar Pradesh2013SLJ 777 2) 2000SLJ 574 3) 2000SLJ 41 4) AIR 2013 SC 487 5) AIR 1977 SC 1112 6) AIR 2016 SC 3006 7) AIR 2009 SC 571 8) AIR 2004 Rajasthan 247 9) AIR 1996 SC 497 10) AIR 1999 SC 517 11) AIR 2008 SC 1614 12) 2010SLJ SWP 296 2018 580 13) 2007SLJ 838 14) AIR 1990 SC 185 15) 1989 KLJ 284 16) 1991 SLJ 185 17) AIR 2013 SC 487 18) AIR 1964 SC 962 19) AIR 1976 SC 2438 22. Given the fact that the petitioner has filed a civil suit on the subject and a writ petition also before filing the instant writ petition therefore without returning finding on all the points raised by the parties it is thought appropriate to first address a question as to whether the writ petition survives consideration for the reliefs prayed for 23. To have the question answered one needs to appreciate the events as they took place and the first event that comes to the fore would be the appointment of the respondent no. 10 as ReT teacher made in the year 2011 which had to be questioned by the petitioner under appropriate proceedings which has not been done although a civil suit is filed by the petitioner before the competent court of jurisdiction but that challenged the tentative selection of respondent no. 10 as the appointment order had not been issued at that point of time. There is a copy of the amended plaint also on records in which the petitioner had additionally sought a restraint in the name of defendants respondents herein for issuing any appointment order in favour of respondent no. 10 but there is nothing on record to show that any restraint was ever issued by the court. However it is quite apparent that no appointment order had been issued until then. 24. Next event that takes place and assumes importance is the filing of writ petition by the petitioner bearing SWP no. 1268 2017 presented on 6th July 2017 but the petitioner did not choose to lay a challenge to the appointment of respondent no. 10 when admittedly the appointment order was issued way before in the year 2011 and the petitioner was quite aware of it. 25. The situation would have been different in case the petitioner had not filed any writ petition on the subject after the issuance of the appointment order in favour of respondent no. 10 as in that case the court had to look at the aspect of SWP 296 2018 delay and then go to the merits of the case but since the petitioner has been aware of the appointment order and had filed a writ petition on the subject afterwards without questioning the same the court would be required to see as to what effect does it carry on the merits of the case in hand. Whether it amounts to relinquishment of the right to challenge the appointment of respondent no. 10 or not 26. Admittedly the petitioner on approaching this court in the first round of litigation had chosen not to challenge the appointment order may be because of pendency of the suit challenging selection of respondent no. 10 but on decision of the writ petition SWP no. 1268 2017 rendered on 15.2.2018 the petitioner can by no stretch of imagination challenge the appointment as the challenge will be governed by the decision rendered in the writ petition SWP 1268 2017. 27. Parties are bound by the decision which is not challenged and is in force as on date therefore there is no scope as far as quashment of appointment of respondent no. 10 is concerned on whatsoever grounds unless the trial court decides the issue regarding the factum of residence of respondent no. 10. On this finding alone the challenge to appointment in the instant writ petition is not available. But the petitioner is at liberty to lay challenge to the appointment in the pending suit on available pleadings if the law so permits. 28. In light of the above findings based on the judgment final order of this court rendered in a writ petition SWP no. 1268 2017 the petitioner’s right depending upon the decision of the Civil Court is reserved to further relief in the said suit. 29. Having regard to what has been stated hereinbefore the writ petition is disposed of along with all CMs in the following manner: SWP 296 2018 i) Writ Petition for the relief sought qua quashment of appointment of respondent no. 10 is dismissed. ii) Petitioner is at liberty to seek further relief in the pending civil suit on the strength of the judgment final order rendered by this court in a writ petition SWP no. 1268 2017 if available under law. The writ petition along with all CMs is disposed of on the above lines. Records be returned to Mr Shah Aamir AAG against receipt. It goes without saying that the court below shall adjudicate upon the merits of the case without getting influenced by any of the observations made by this Court while deciding the instant writ petition. Judge SRINAGAR 23.09.2021 Amjad lone PS Whether approved for reporting: Yes No.

“Appellant Authority found that the respondent is not obliged to provide information where the query is vague and not specific.”: SEBI, Part 2.

Further, information was provided regarding approval of adjudication proceedings in the matter of Varun Global Ltd. the appellant was informed that any further regulatory action, if taken by SEBI in the said matter, will be published on the SEBI website. Additionally, the respondent also stated that the above status has been informed to the appellant in reply to all the complaints filed by the appellant since 2020. A copy of the ATR pertaining to complaint number SEBIE/MH20/00….68/1 was also provided to the appellant. The appellant has filed the appeal on the ground that access to the requested information was refused. The appellant, in his appeal, alleged that his SCORES account has been blocked and that the ATRs cannot be accessed. It was noted that the appellant has sought all ATRs regarding complaints filed by him against Varun Shipping Ltd (Inc.Varun Global/Resources) from December 2015 to date. The appellant also specifically sought the ATR to complaint number SEBIE/MH20/00….68/1. On consideration, Mr Baiwar found that neither the application nor the submissions made in the appeal clearly specify the exact details of the complaints in respect of which the ATRs were sought (except the one specifically provided by the appellant).

Appeal No. 43721 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 43721 Prerit Misra CPIO SEBI Mumbai The appellant had filed an application dated June 19 2021under the Right to Information Act 2005from December 2015 to date. The appellant also specifically sought the ATR with respect to complaint number SEBIE MH20 00….68 1. The respondent in response to the application informed that the query is vague and not specific and accordingly the same cannot be construed as “information” as defined under section 2(f) of the RTI Act. The respondent also observed that SEBI has responded multiple times to his grievances pertaining to Varun Global Ltd. Varun Resources Ltd. registered through SCORES platform and RTI applications. The respondent also informed that Varun Resources Ltd. has been liquidated under the Insolvency and Bankruptcy Code 2016. Further Varun Global Limited published a Public Announcement notice in newspapers Financial Express and Jansatta on June 11 2018 pursuant to the grant of relaxation by SEBI vide letter dated October 31 2017 from the applicability of the Rule 19(2)(b) of the Securities Contracts Regulation) Rules 1957. It was also mentioned that Varun Global Ltd. is yet to approach the Exchange for listing. Further information was provided regarding approval of adjudication proceedings in the Appeal No. 43721 matter of Varun Global Ltd. the appellant was informed that any further regulatory action if taken by SEBI in the said matter will be published on the SEBI website. Additionally the respondent also stated that the above status has been informed to the appellant in reply to all the complaints filed by the appellant since 2020. A copy of the ATR pertaining to complaint number SEBIE MH20 00….68 1 was also provided to the appellant. 5. Ground of appeal The appellant has filed the appeal on the ground that access to the requested information was refused. The appellant in his appeal alleged that his SCORES account has been blocked and that the ATRs cannot be accessed. I note that the appellant has sought all ATRs regarding complaints filed by him against Varun Shipping Ltdfrom December 2015 to date. The appellant also specifically sought the ATR to complaint number SEBIE MH20 00….68 1. On consideration I find that neither the application nor the submissions made in the appeal clearly specify the exact details of the complaints in respect of which the ATRs were sought vs. B. Bharathi. has held that The action of the second respondent in sending numerous complaints and representations and then following the same with the RTI applications that it cannot be the way to redress his grievance that he cannot overload a public authority and divert its resources disproportionately while seeking information and that the dispensation of information should not occupy the majority of time and resource of any public authority as it would be against the larger public interest..." The Hon’ble CIC in the matter of Samir Sardana vs. CPIO Mormugao Port Trust also referred to the said observations made by the Hon’ble High Court while dismissing the appeal. I also note that in the context of misuse of provisions of RTI Act the Hon’ble CIC in R. P. Verma vs. CPIO Ordinance Factories strongly criticised the practice of filing multiple applications on similar matters. In view of the above observations I find that there is no need to interfere with the decision of the respondent. The Appeal is accordingly dismissed. Place: Mumbai Date: August 10 2021 ANAND BAIWAR APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA

Petitioner released on bail after being arrested under Sections 354-A, 504, 337, 506/34 IPC and 8 of the POCSO Act, 2012: High court of Patna

The petitioner was arrested under Section 354-A Indian penal code, “punishment for sexual harassment” section 504, “Intentional insult with intent to provoke breach of the peace” section 337, “Causing hurt by act endangering life or personal safety of others” section 506, “Punishment for criminal intimidation” Section 34 IPC, “Acts have done by several persons in furtherance of common intention.”  Section 8 of the Protection of Children from Sexual Offences Act, 2012, “Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.” This was in connection with Govindpur PS Case No. 90 of 2020 on 10.05.2020, corresponding to POCSO Case No. 76 of 2020. This judgment was given in the high court of Judicature at Patna by honorable Mr. Justice Ahsanuddin Amanullah on the 23rd of July 2021 in the case of Nitish Kumar v/s the state of Bihar criminal miscellaneous No.37752 of 2020, Mr. Anil Singh represented as the advocate for the petitioner and Mr. Bharat Bhushan represented the state of Bihar as the additional Public Prosecutor. The following are the facts of the case, the minor daughter of the informant was at the door of her house she was offering prayer around 6:30 PM, the petitioner along with others pulled her scarf from her neck, and when the informant has gone to the house of the petitioner to confront him, the member of the informant family was threatened and the petitioner was accused of abusing and throwing bricks against the informant but however they managed to save themselves.   The counsel for the petitioner claimed before the court that even if the incident of pulling the scarf is true it has been blown out of proportion, according to the FIR no allegation of any assault on any person has been registered and he also claimed that the narration of the case wasn’t all accurate and the petitioner and others as an everyday routine used to wash at the hand pump of the informant and due to some altercation between the parties the complaint was lodged. And also held that the petitioner has no criminal antecedent. However, the additional Public Prosecutor submitted that the petitioner had gone to the house of the informant and pulled her scarf which clearly indicates serious misconduct on the part of the petitioner and his friends. The court decided that the petitioner be released on bail upon furnishing bail bonds of Rs. 25,000 with two sureties each to the satisfaction of the learned Additional District Judge, however subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure, 1973 “(i) that one of the bailors shall be a close relative of the petitioner, (ii) that the petitioner and the bailors shall execute bond with regard to the good behavior of the petitioner (iii) that the petitioner shall cooperate with the Court and the police/prosecution.”

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.377520 Arising Out of PS. Case No. 90 Year 2020 Thana GOVINDPUR District Nawada Nitish Kumar aged about 20 years son of Yogeshwar Ravidas resident of Village Ambedkar Nagar Kunda P.S. Govindpur District ... Petitioner s The State of Bihar For the Petitioner s For the State CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH Mr. Anil Kumar Singh Advocate Mr. Bharat Bhushan APP ... Opposite Party s Date : 23 07 2021 The matter has been heard via video conferencing. 2. Heard Mr. Anil Kumar Singh learned counsel for the petitioner and Mr. Bharat Bhushan learned Additional Public Prosecutorfor the 3. Learned counsel for the petitioner submitted that he may be permitted to add the number of the special case i.e. POCSO Case No. 720 with the FIR number. Prayer is allowed. Let the same be done by tomorrow through e mode 4. The petitioner apprehends arrest in connection with Govindpur PS Case No. 90 of 2020 dated 10.05.2020 corresponding to POCSO Case No. 720 instituted under Sections 354 A 504 337 506 34 of the Indian Penal Code and Patna High Court CR. MISC. No.377520 dt.23 07 2021 8 of the Protection of Children from Sexual Offences Act 2012. 5. The allegation against the petitioner is that when the minor daughter of the informant was at the door of her house and offering prayer in the evening at 6.30 PM the petitioner along with others had come and had pulled the scarf of the daughter of the informant and when the informant had gone to the house of the petitioner the informant and her family members were threatened and were sent outside the house and had stated that they would get Panchayati done and would deal with the informant but again they had abused and thrown brick bats and somehow the informant side had managed to save 6. Learned counsel for the petitioner submitted that from the reading of the FIR it is clear that the parties being young the incident of the petitioner having pulled the scarf from the neck of the daughter of the informant even if true has been blown out of proportion. Learned counsel submitted that even as per the FIR there is no allegation of any assault resulting in any injury to any person. Learned counsel submitted that the story in the FIR is not the true narration of the incident It was submitted that it has come during investigation that every day as a matter of routine the petitioner and others used to play Patna High Court CR. MISC. No.377520 dt.23 07 2021 cricket and come and wash themselves at the hand pump of the informant and on the date of occurrence there was some altercation between the two sides and without waiting for any Panchayati FIR has been lodged. Learned counsel submitted that the petitioner has clean antecedent. 7. Learned APP submitted that the petitioner who had come to the house to the informant had pulled the scarf of the daughter of the informant which is a serious misconduct on his 8. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties in the event of arrest or surrender before the Court below within six weeks from today the petitioner 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 petitioner that the petitioner and the bailors shall execute bond and give Patna High Court CR. MISC. No.377520 dt.23 07 2021 undertaking with regard to good behaviour of the petitioner and iii) that the petitioner shall cooperate with the Court and the police prosecution. Any violation of the terms and conditions of the bonds or undertaking or failure to cooperate shall lead to cancellation of his bail bonds. 9. It shall also be open for the prosecution to bring any violation of the foregoing conditions of bail by the petitioner to the notice of the Court concerned which shall take immediate action on the same after giving opportunity of hearing to the petitioner 10. The petition stands disposed off in the (Ahsanuddin Amanullah J J. Alam

Plea for conducting Home-Based Exam for CLAT 2020 Rejected by Delhi High Court

The Hon’ble High Court of Delhi in V Govinda Ramanan Vs Consortium of National Law Universities & Anr. [W.P.(C) 4848/2020] dismissed a petition for conducting CLAT in Home based exam format. Background –  The petitioner is an LLM aspirant who has approached the High Court for a change in the mode of CLAT examination as an offline/physical examination is detrimental to his ‘Right to life’ and ‘Right to health’ guaranteed under Article 21 of the constitution. The petitioner suffers from asthma and is among the vulnerable group as per the advisory direction of the government. The CLAT-2020 examination was to be held on 22.08.2020 which has been extended to 28.09.2020. The petitioner prayed for a home-based examination which is conducted by the consortium of 22 National Law Universities. The Respondent consortium assured that all the necessary measures of disinfection of the centre, thermal screening of students and social distancing etc will be adhered to as per the guidelines issued by the Ministry of Human Resource Development on 06.07.2020 for conducting examinations at physical test centre for final term examinations for Universities, IIT-JEE, NEET, etc. Since there are approximate 78,000 students appearing for CLAT home-based exam will not serve the larger interest of an entrance as it gives scope to malpractices and it will also be prejudicial to candidates not having a stable internet connection or a laptop or desktop. Held –

IN THE HIGH COURT OF DELHI AT NEW DELHI V GOVINDA RAMANAN Through Mr.Yudhvir Singh Chauhan petitioner in person CONSORTIUM OF NATIONAL LAW UNIVERSITIES & ANR Through Mr.Dayan Krishnan Sr.Adv. with Mr.Vinayak Mehrotra Adv. for R 1 Mr.Ajay Digpaul Mr.Himanshu Pathak and Mr.Kamal R.Digpaul Advs. for R 2 HON BLE MR. JUSTICE JAYANT NATH O R D E R This hearing is conducted through video conferencing Allowed subject to all just exceptions CM APPL. No.17491 2020 For the reasons stated in the application the same is allowed Court fees be filed within two weeks W.P.(C) 4848 2020 CM.APPL Nos.17489 & 19726 2020 This writ petition is filed by the petitioner seeking an appropriate direction to quash the CLAT 2020 examination notification issued by respondent No.1 in so far as it mandates directs the petitioner to physically go to the examination centre and give the exam The petitioner is a law graduatewho wishes to pursue his LL.M. It is pleaded that the petitioner suffers from asthma and as such falls under the vulnerable category of individuals who are advised by the Government not to go outside in the present time application forms were invited by the NLU’s respondent No.1 to conduct CLAT 2020 for UG and PG Law programs offered by the 22 National Law Universities It is pleaded that on account of COVID 19 pandemic the entire educational system in the country has come to a standstill. Schools Colleges Universities are completely closed The CLAT 2020 examination was to be held on 22.08.2020. This date now has been extended to 28.09.2020. The grievance of the petitioner is that it is mandatory for the petitioner to physically go to the testing center and to give the said examination which is dangerous in the present circumstances It is pleaded that the Government of India has granted certain concessions on movement. However movements of the individuals under the risk category i.e. elderly children and other individuals who are suffering from ailments continues to be restricted. Hence the present writ petition Respondent No.1 the consortium of NLU has filed its counter affidavit. It is stated that respondent No.1 is responsible for conducting the Common Law Admission Testwhich is a common examination for entry to various National Law Universities across the country Approximately 78 000 candidates are expected to appear in the examination across 203 centers in the country It is further pleaded that similar petitions have been rejected by the Supreme Court for various other examinations pertaining to professional degree courses. Reliance is placed on various decisions to the said effect that have been passed by the Supreme Court It is also pointed out that respondent No.1’s decision to conduct CLAT 2020 at physical test centers was challenged by way of Public Interest Litigation before the Supreme Court of India. The same was dismissed in lemine by a three Judge Bench of the Supreme Court in the order titled ‘Mitul Jain v. Consortium of NLUs & Ors.’ in W.P.(C 717 2020 dated 29.07.2020 further pleaded that the Ministry of Human Resource Development has on 06.07.2020 issued instructions examinations at physical test centers for final term examinations for Universities IIT JEE NEET etc. These instructions would also cover the conduct of CLAT 2020 by respondent No.1 It is stated that vide office memorandum dated 06.07.2020 it is specially noted that the MHA has granted an exemption for opening educational institutions for the purpose of holding such examinations evaluation work. Further in case there are restrictions on movement in certain areas admit identity cards issued to the candidates would be treated as a pass for the movement of students. It is stated that the State Governments would issue instructions to all local authorities to issue movement passes to invigilators and all personnel engaged in the conduct of examination. All precautions would be taken i.e steps would be taken for disinfection of the entire examination center provision for sanitizer at the entry gate examination rooms staff rooms seating plans to ensure proper social distancing thermal screening of all concerned individuals at entry gates etc. would be done. The notification dated 30.06.2020 issued by respondent No.1 detailing the medical precautions to be undertaken while conducting CLAT 2020 examination has also been annexed with the counter affidavit of the respondent no.1 10. Regarding the contention of the petitioner that home base online test be conducted it has been pleaded that home based online test for around 78 000 students would not be possible. The test would be completely compromised and may even be manipulated by the participants or coaching centers. The several meetings which took place by respondent No.1 whereafter it was concluded that an online test at home with technological measures cannot ensure transparency fairness and integrity of a high stake examination such as CLAT. Further home based exams require access to a laptop or desktop computer internet access and network stability Respondent No.1 cannot expect all candidates to have access to these resources at home. Further such a course would severely harm those candidates from the backward areas sections The petitioner has also filed a rejoinder affidavit. In the course of arguments he has reiterated that all his contentions have been noted in the rejoinder. The contents of the rejoinder may be looked into It has been pleaded that the direction to the petitioner who is an asthmatic to appear physically in the examination center of CLAT 2020 is violative of ‘Right to Life’ and ‘Right to Health’ guaranteed under Article 21 of the Constitution of India and hence is liable to be set aside Further reliance is placed on the notification issued by the Ministry of Home Affairs under the Disaster Management Act 2005 on 29.07.2020 where certain guidelines and restrictions have been issued. Reliance is placed on one of the guidelines which states that persons above 65 years of age and persons with co morbidities are advised to stay at home except for essential and health purposes. It is pleaded that the act of the respondents tantamounts to violation of the said guidelines. Any such violation invites prosecution in terms of the Disaster Management Act 2005 and other It is further pleaded that because of the present COVID 19 situation the premiere institution like Indian Institute of Mass Communication has cancelled its entrance examination It is stated that mere observations in the order of the Supreme Court does not cause prejudice to the case of the petitioner It is further pleaded that the home based online exam is the safest and the best mode in these trying times and especially in view of the COVID 19 I may first have a look at the order of the Supreme Court dated 29.07.2020 passed in W.P.(C) No.717 2020 titled ‘Mitul Jain vs Consortium of NLUs & Ors. The said petition was dismissed by the O R D E R We are not inclined to entertain this petition under Article 32 of the constitution of India The writ petition is accordingly dismissed. Pending applications stand disposed of.” Keeping in view the aforesaid it is clear that the aforesaid order would remain binding on this court Even otherwise it is clear that the plea of respondent No.1 that a home based exam may not be appropriate for approximately 78 000 candidates who are to take the exam. The possibility of the exams being compromised or manipulated by the participants coaching centers cannot be ruled out. That apart the problem of accessibility for 78 000 candidates to appropriate technology internet connection laptop or desktop computer itself would be doubtful. Hence this plea of the petitioner cannot be Further reliance of the learned counsel for the petitioner on the guidelines of the Ministry of Home Affairs is misplaced. The said guidelines clearly provide that persons with co morbidities are advised to stay at home It is at best ‘an advisory’ Further as pointed out in counter affidavit by respondent No.1 the Ministry of Human Resources Development has issued instructions for conducting examinations at physical centers for final term examination of Universities IIT JEE NEET etc. The concerned memorandum notes that MHA has granted exemptions for opening educational holding such examinations. The office memorandum envisages and permits the conduct of the examinations online offline mode subject to adherence to the Standard Operating Procedure which is sought to be followed by It is clear that the pleas of the petitioner are misplaced and cannot be a ground for postponing the exams change of mode to conduct the exam I may also note that the petitioner has completed his LL.B. in 2016. It is now after a gap of 4 years that he seeks to apply for a Post Graduation in Law. The Petitioner has hence waited for four years to give the exam There is no merit in the present petition. The same is dismissed SEPTEMBER 10 2020 v JAYANT NATH J Page

High courts are empowered to issue orders to any person or authority, including the government: High Court Of New Delhi

Petitioner filed a suit for recovery of Rs.1190000/- by filing a written statement and the same issue was held in the judgement passed by a single bench judge comprising HON’BLE MR. JUSTICE AMIT BANSAL, in the matter VANEETA KHANNA & ORS. V.  VIKRAM SEHGAL [CM(M) 520/2021], dealt with an issue mentioned above. The petition was filed under Article 226 of the Constitution of India, After hearing the parties, judgment was reserved in the matter on 17th September 2021. Both parties have filed written submissions that have been taken on record. The present petition arises was a suit for recovery of Rs.11,90,000/-. The said suit was contested by the petitioners by filing a written statement, wherein it was stated that the alleged Will dated 20th June 2006 of the petitioner no.1 and respondent’s mother was forged and fabricated and the alleged Will dated 26th March 2007 of petitioner no.1 and respondent’s father was executed under force and coercion. It was mentioned that On 15th September 2016 affidavit of evidence was filed on behalf of the petitioners. However, to date, the cross-examination of the petitioner’s witnesses has not commenced. As regards the impugned order dated 16th April 2021, dismissing the application of the petitioners filed under Section 151, CPC, for placing on CM(M) 520/2021 record complaint against their previous counsel, no submissions were made on behalf of the petitioners impugning the said order. The petitioner has placed on record a subsequent order dated 27th August 2021 passed by the Trial Court, whereby the applications filed by the petitioners under Order 7 Rule 14, CPC, for filing list of additional witnesses and application under Order 16 Rule 1 and 3, CPC for summoning additional witnesses, have been partly allowed by the Trial Court. Vide the order 27th August 2021, few witnesses were taken on record. After hearing the rival contentions and perused the impugned order passed by the Trial Court and the written submissions filed by both the parties. The Trial Court dismissed the aforesaid application filed on behalf of the petitioners under Order 18 Rule 17 of CPC by observing few facts. It was mentioned that they have examined the impugned order passed by the Trial Court. Conducting a cross-examination in a suit is a specialized job. It was only with experience that a counsel develops skills for cross-examination. Different Advocates may conduct cross-examination differently and it may not be correct to say that which is the correct approach and which is not. Hence, at the mere behest of a dissatisfied litigant, it cannot be taken that the advocate has not conducted proper cross-examination of the witnesses. Therefore, the impugned order has correctly noted that the litigant is the principal who is bound by all acts of his Advocate, who acts as his agent, so long as the aforesaid acts are conducted in the course of his professional dutyIt was also a matter of record that the petitioner no.1 was herself present in Court when the cross-examination was conducted and that all the three witnesses were exhaustively cross-examined by the advocate appearing on behalf of the petitioners. It was mentioned that t petitioner no.1 has been appearing herself throughout the proceedings and she is well aware of the facts and circumstances of the case as was stated in the affidavit filed in support of the applications. The fact that a similar application filed on behalf of the petitioners was dismissed by the Trial Court vide order dated 20th July 2016 should have been disclosed in the present application. After a lapse of three years, the petitioners cannot be allowed to fill in lacuna in their case by seeking to recall the aforesaid witnesses. Reference in this regard may be made to the decision of the Hon’ble Supreme Court in K.K. Velusamy Vs. N. Palanisamy (2011) [11 SCC 275]. The court perused the facts and argument’s presented, it thought that- “Order 18 Rule 17 of the Code is not a provision intended to enable the parties to recall any witnesses for their further examination-in-chief or cross-examination or to place additional material or evidence which could not be produced when the evidence was being recorded. Order 18 Rule 17 is primarily a provision enabling the court to clarify any issue or doubt, by recalling any witness either suo motu or at the request of any party, so that the court itself can put questions and elicit answers. Once a witness is recalled for purposes of such clarification, it may, of course, permit the parties to assist it by putting some questions. Therefore, there is no infirmity in any of the impugned orders passed by the Trial Court that warrant the interference of this Court in the exercise of jurisdiction under Article 227 of the Constitution of India, Dismissed”.

IN THE HIGH COURT OF DELHI AT NEW DELHI CM(M) 520 2021 Reserved on : 17th September 2021 Decided on : 07th October 2021 VANEETA KHANNA & ORS. ..... Petitioners Petitioner No.1 in person ..... Respondent VIKRAM SEHGAL In person HON BLE MR. JUSTICE AMIT BANSAL The present petition under Article 226 of the Constitution of India impugns the following three orders passed by the ADJ 02Tis Hazari Courts Delhi passed in Civil Suit No.611999 2016: i) Order dated 16th April 2021 dismissing the application filed by the petitioners defendants under Section 151 of the Code of Civil Procedure 1908 for placing on record complaint dated 11th November 2014 against the petitioners’ previous counsel for not conducting proper cross examination of the respondent’s plaintiff’s witness. ii) Order dated 16th April 2021 dismissing the application filed on behalf of the petitioners under Order 18 Rule 17 of CPC for recalling respondent’s witnesses namely respondent himself Jai CM(M) 520 2021 Bhagwan Charan Dass and Bijender Kumar for further cross iii) Order dated 16th April 2021 only partly allowing the application of the petitioners under Order 8 Rule 1A(3) of CPC After hearing the parties judgment was reserved in the matter on 17th September 2021. Both parties have filed written submissions which have been taken on record. The suit from which the present petition arises was a suit for recovery of Rs.11 90 000 . The said suit was contested by the petitioners by filing a written statement wherein it was stated that the alleged Will dated 20th June 2006 of the petitioner no.1 and respondent’s mother was forged and fabricated and the alleged Will dated 26th March 2007 of petitioner no.1 and respondent’s father was executed under force and coercion. The aforesaid Wills are also subject matter of an earlier partition suit filed on behalf of the petitioner no.1 which is also pending before the Trial Court. The issues were framed in the present suit on 15th July 2010 and thereafter evidence was led on behalf of the respondent and the same was concluded in 2015. On 15th September 2016 affidavit of evidence was filed on behalf of the petitioners. However till date the cross examination of the petitioner’s witnesses has not commenced. As regards the impugned order dated 16th April 2021 dismissing the application of the petitioners filed under Section 151 CPC for placing on CM(M) 520 2021 record complaint against their previous counsel no submissions were made on behalf of the petitioners impugning the said order. The said order correctly records that the court cannot take action against a counsel for not properly conducting the case. Therefore the complaint sought to be placed on record against the counsel was rightly dismissed. As regards the impugned order in respect of application filed by the petitioners under Order 8 Rule 1A(3) CPC the petitioners were allowed to place on record order dated 16th May 2014 passed in the partition suit and copy of the list of documents filed by the father of petitioner no. 1 and the respondent C.L. Raizada in the said suit. The grievance of the petitioners against the said impugned order is that they were not allowed to place on record relevant documents bearing signatures of the mother of petitioner no. 1 and the respondent in support of their contention that the mother’s Will dated 20th June 2006 is forged and fabricated. The petitioner has placed on record a subsequent order dated 27th August 2021 passed by the Trial Court whereby the applications filed by the petitioners under Order 7 Rule 14 CPC for filing list of additional witnesses and application under Order 16 Rule 1 and 3 CPC for summoning additional witnesses have been partly allowed by the Trial Court. The Trial Court while partly allowing both the applications observed that documents bearing the signature of the mother of the petitioner no. 1 and the respondent are relevant for the present suit. In the said order it was also noted by the Trial Court that the authenticity of both the wills are facts in issue in the present suit. In view of the aforesaid order dated 27th August 2021 the grievance of the petitioners in respect of the impugned order dated 16th CM(M) 520 2021 April 2021 disallowing the petitioners to place on record relevant documents bearing signatures of the mother of petitioner no.1 and the respondent stands redressed. Vide the order 27th August 2021 the following witnesses are taken on record and are summoned with relevant documents: i) Clerk official from Allahabad Bank 1A Banarasi Dass Estate Timarpur Delhi 54 along with Account Opening Form and other documents containing the signature of Late Smt. Pushpa Sehgal when she signed while getting her account opened. ii) Mr. Deepak Jain Handwriting Expert. iii) Clerk from office of Senior Superintendent of Post Office Delhi 54 North Postal Division along with the applications signed by Pushpa Raizada for purchasing the KVP’s. iv) Clerk from Allahabad Bank Ground Floor 17 Parliament Street New Delhi to bring all documents signed by Pushpa Raizada for getting her locker no.401 opened. The main grievance of the petitioners is in respect of the impugned order dated 16th April 2021 with regard to the application filed by the petitioners under Order 18 Rule 17 CPC for recalling the respondent’s witnesses namely respondent himself Jai Bhagwan Charan Dass and Bijender Kumar for further cross examination. The petitioner no. 1 appearing in person has submitted that: CM(M) 520 2021 The petitioners want to recall the aforesaid witnesses to confront them with the undated statements given by the said witnesses in the partition suit which are contrary to the evidence given by the said witnesses in the present suit. Since these undated statements are not on oath they cannot be exhibited and therefore it is sought that the aforesaid witnesses may be recalled so that they can be confronted with the aforesaid undated statements. iii) The lawyers engaged by the petitioners earlier erroneously did not confront the said witnesses with the undated statements in the course of the cross examination conducted by them and that the petitioners cannot be allowed to suffer on account of the fault of her lawyers. 10. Respondent appearing in person on advance notice has submitted that: The aforesaid application has been filed belatedly inasmuch as the plaintiff’s evidence in the suit got concluded on 17th December 2015. ii) The undated statements that are sought to be put before the respondent’s witnesses were filed in the partition suit on 29th August 2008 and hence were already available with the petitioners during the cross examination in the present suit. iii) All the three witnesses were exhaustively cross examination by the counsel for the petitioners. CM(M) 520 2021 It is falsely averred that the cross examination was conducted by the previous counsels in a faulty manner as the said previous counsels are still appearing for the petitioner no. 1 and her husband in other proceedings. v) Petitioner no.1 herself is well versed with her case and has been appearing in person on all the dates of the case and the affidavit filed by her in support of the present applications also states that she is well versed with the facts of the case. vi) Petitioners did not disclose that an earlier application under Order 18 Rule 17 of CPC filed for recalling respondent’s witness namely Jai Bhagwan has been dismissed by the Trial Court vide order dated 20th July 2016 and that no appeal has been filed against the said order. vii) The present application has only been filed so as to fill in the lacuna and to prolong the proceedings in her case and therefore cannot be allowed. I have heard the rival contentions and perused the impugned order passed by the Trial Court and the written submissions filed by both the parties. 12. The Trial Court has dismissed the aforesaid application filed on behalf of the petitioners under Order 18 Rule 17 of CPC by observing that: CM(M) 520 2021 The statements of the witnesses sought to be confronted to them were filed on 29th August 2008 in the partition suit between the same parties. ii) The recovery suit was filed on 29th October 2009 and the said witnesses were cross examined at length in the year 2015. iii) The petitioners despite being aware of the statements the aforesaid witnesses were not confronted with the said iv) The erstwhile counsels may have taken a strategic call as not to confront the said witnesses with the aforesaid statements. Therefore it cannot be conclusively said that the erstwhile counsels had not conducted the cross examination properly. v) Petitioners are bound by the acts of their advocate when it was done while conducting the case on behalf of the petitioners. It was noted in the order dated 19th March 2015 of the Trial Court passed in the present suit that the petitioner no. 1 was threatening the aforesaid witnesses and taking into account her conduct the in charge of PP Tis Hazari was called and the SHO was directed to depute personnel to ensure safety of witnesses and decorum of court. vii) The documents proposed to be put to the respondent plaintiff have been obtained from banks and police etc. and have not come from the custody of the respondent. The documents were CM(M) 520 2021 neither prepared by him and nor were bearing his signature. So he cannot be expected to comment on them. I have examined the impugned order passed by the Trial Court. Conducting cross examination in a suit is a specialized job. It is only with experience that a counsel develops skills for cross examination. Different Advocates may conduct cross examination in different manner and it may not be correct to say that which is the correct approach and which is not. Hence at the mere behest of a dissatisfied litigant it cannot be taken that the advocate has not conducted proper cross examination of the witnesses. The Advocate in his wisdom conducts the cross examination of the witnesses and a litigant cannot approach the court three years later and be heard to say that the cross examination was not conducted properly. 14. Therefore the impugned order has correctly noted that the litigant is the principal who is bound by all acts of his Advocate who acts as his agent so long as the aforesaid acts are conducted in the course of his professional duty. Even if it is assumed that the contention of the petitioners is correct that the cross examination was not conducted in a proper manner the petitioners would still be bound by the same. It is also a matter of record that the petitioner no.1 was herself present in Court when the cross examination was conducted and that all the three witnesses were exhaustively cross examined by the advocate appearing on behalf of the petitioners. It is also borne out from the record that the petitioner no.1 has been appearing herself throughout the proceedings and she is well aware of the facts and circumstances of the case as was stated in the affidavit filed in support of the applications. CM(M) 520 2021 16. As rightly pointed out by respondent in person the petitioners are guilty of concealment of facts. The fact that a similar application filed on behalf of the petitioners was dismissed by the Trial Court vide order dated 20th July 2016 should have been disclosed in the present application. It is a settled principle of law that the provisions of Order 18 Rule 17 of CPC cannot be used by a party to fill in lacuna in his case. The petitioners were given full opportunity to cross examine the witnesses of the respondent and the said witnesses were exhaustively cross examined. Now after a lapse of three years the petitioners cannot be allowed to fill in lacuna in their case by seeking to recall the aforesaid witnesses. Reference in this regard may be made to the decision of the Hon’ble Supreme Court in K.K. Velusamy Vs. N. Palanisamy11 SCC 275. Relevant portion of the same is set out below: 9. Order 18 Rule 17 of the Code enables the court at any stage of a suit to recall any witness who has been examinedand put such questions to him as it thinks fit. The power to recall any witness under Order 18 Rule 17 can be exercised by the court either on its own motion or on an application filed by any of the parties to the suit requesting the court to exercise the said power. The power is discretionary and should be used sparingly in appropriate cases to enable the court to clarify any doubts it may have in regard to the evidence led by the parties. The said power is not intended to be used to fill up omissions in the evidence of a witness who has already been examined.520 2021 Naggappa Vernekar v. Sharadchandra Prabhakar Gogate4 SCC 410 :2 SCC198] .) 10. Order 18 Rule 17 of the Code is not a provision intended to the parties to recall any witnesses examination in chief or cross examination or to place additional material or evidence which could not be produced when the evidence was being recorded. Order 18 Rule 17 is primarily a provision enabling the court to clarify any issue or doubt by recalling any witness either suo motu or at the request of any party so that the court itself can put questions and elicit answers. Once a witness is recalled for purposes of such clarification it may of course permit the parties to assist it by putting some questions. 18. Therefore there is no infirmity in any of the impugned orders passed by the Trial Court that warrant interference of this Court in exercise of jurisdiction under Article 227 of the Constitution of India. 19. Dismissed. OCTOBER 07 2021 AMIT BANSAL J. CM(M) 520 2021

Section 320 of Cr.P.C. does not limit or affect the powers under Section 482 of the Code of Criminal Procedure: High Court of Uttarakhand.

The High Court, in the exercise of its inherent power, can quash criminal proceedings or FIR or complaint and Section 320 of Cr.P.C. does not limit or affect the powers under Section 482 of the Code of Criminal Procedure, 1973. A single Judge Bench comprising Hon’ble Justice R.C. Khulbe, in the matter of Tushar Prajapati Vs. The state of Uttarakhand and another (Criminal Misc. Application (C482) No.1057 of 2021 With Compounding Application (CRMA 1 of 2021)), dealt with an issue where the petitioner filed this application under Section 482 Cr.P.C. seeking to quash the summoning order passed by the C.J.M., Dehradun in Crl. A case under Sections 323/354/427/452/ 504/506 IPC, along with a further prayer to quash the entire proceedings of the aforesaid case which are pending before the ACJM, Dehradun. In the present case, the compounding application had also been filed seeking to compound the offence between the parties on the basis of a compromise arrived at between them. The counsel for the state opposed the compounding application. The counsel for the applicant contended that offences punishable under Sections 323, 354, 427, 504 and 506 IPC were compoundable offences whereas Section 452 IPC was a non-compoundable offence. The high court in one of its judgements observed that while exercising its inherent power under Section 320 of Cr.P.C., it does not limit or affect the powers under Section 482 of the Code of Criminal Procedure, 1973. The apex court had also permitted compounding of such offences in the decision of Nikhil Merchant v. CBI and another, (2008) 9 SCC 650 and the counsel of the parties pointed out the ruling of Hon’ble Apex Court in Gian Singh’s case.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. ApplicationNo.10521 With Compounding ApplicationTushar Prajapati ….. Applicant State of Uttarakhand and another ….Respondents Mr. Bhuwan Bhatt learned counsel for the applicant. Mrs. Manisha Rana Singh learned AGA for the State. Mr. Hemant Pant learned counsel for respondent no.2. Hon’ble R.C. Khulbe J. This application is filed under Section 482 Cr.P.C. seeking to quash the summoning order dated 23.01.2021 passed by the C.J.M. Dehradun in Crl. Case No.780 of 2021 under Sections 323 354 427 452 504 506 IPC along with a further prayer to quash the entire proceedings of the aforesaid case which are pending before the ACJM Dehradun. The above numbered compounding application has also been filed seeking to compound the offence between the parties on the basis of a compromise arrived at between them. Learned counsel for the State opposed the compounding application. It is contended by learned counsel for the applicant that the offences punishable under Sections 323 354 427 504 and 506 IPC are compoundable offences whereas Section 452 IPC is a non compoundable offence. The Apex Court has dealt with consequence of a compromise in regard to non compoundable offences in the case of B.S.Joshi and others vs. State of Haryana and another 4 SCC 675 and has held as below: “If for the purpose of securing the ends of justice quashing of FIR becomes necessary Section 320 Cr.P.C. 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.” Thus the High Court in exercise of its inherent power can quash criminal proceedings or FIR or complaint and Section 320 of Cr.P.C. does not limit or affect the powers under Section 482 of the Code of Criminal Procedure 1973. 7. The Hon’ble Supreme Court has permitted compounding of such offences in the decision of Nikhil Merchant v. CBI and another 9 SCC 650. 8. Learned counsel for the parties also drew the attention of this Court towards the citation of Gian Singh v. State of Punjab and another 1 SCC 160 in which Hon’ble Supreme Court observed as below: “The position that emerges from the above discussion can be summarised thus: 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 or to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and 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 serious impact on society. Similarly any compromise between the victim and offender in relation to the offences under special statutes like 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 pre dominatingly civil flavour stand on 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 High Court may quash criminal proceedings if in its view because of the compromise between the offender and victim the possibility of conviction is remote and bleak and continuation of criminal case would put 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 the criminal proceeding would or continuation of tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative the High Court shall be well within its jurisdiction to quash the criminal proceeding.” 9. The instant case is squarely covered by the above ruling of the Hon’ble Supreme Court. The obvious reply to the question posed above is in the affirmative in view of the ruling of Hon’ble Apex Court in Gian Singh’s case18.08.2021

Real Estate an Appropriate Forum for Khasra Numbers and Mesne Profit: High Court of Shimla

The RSA was the appropriate forum, for determining the factum, of, legality or illegality of assumption of possession, upon, writ khasra numbers, and for determining whether during pendency thereof either status quo was to be maintained or whether possession subject, to, payment of mesne profit, was to be delivered. This remarkable judgement was passed by Shimla High Court in the case of Jagdish Ram & Ors. V. State of H.P. & Ors [LPA No. 135 of 2015] by The Hon’ble Mr. Justice Sureshwar Thakur and The Hon’ble Mr. Justice Sandeep Sharma The Mandamus writ petition was filed directing respondents No.1 to 3 to complete the consolidation proceedings within a time bound period not exceeding 6 months, put the petitioner in possession of his holdings prior to the consolidation proceedings and directing the respondents to pay to the petitioner compensation for the deprivation of his property for the period he remained out of possession. The writ petitioner herein was unlawfully deprived of possession of the writ property during consolidation proceedings his possession, upon, the writ property, became reduced from hitherto 42.3 kanals to 23.16 kanals, and, also his concomitant physical possession, upon, the writ property became reduced. Furthermore, there was also a reference in the impugned verdict to a judgment pronounced by the Civil Court qua land measuring 42.6 kanals, and, the finalization of the freshly instituted consolidation proceedings, the writ petitioner be put in physical possession of the writ property. The correspondents, asserted that they did rather acquire title to the suit property through adverse possession. The court was in the opinioned that, “the judgment, rendered by the Civil Court, and, though purportedly appertaining to the writ khasra numbers or the suit khasra numbers, alluded in the verdict of the learned Single Judge, hence symbolic and physical possession, of the writ khasra numbers, or suit khasra numbers, stood delivered, to the writ petitioner arrayed as co-respondent No.4 in the LPA, (i) thereupon, up till a decision dispute becomes encapsulated, with respect to suit khasra numbers or the writ khasra numbers, (ii) appertains to the validity of acquisition, of, title thereon, respectively by the appellants, and/or by the writ petitioner, arrayed as co-respondent No.4, in the extant LPA” The court was of the view that, “In summa, the impugned verdict is recalled. Also since unclouded, and, uncontested title, upon, the apposite khasra numbers, is, the indispensable norm for hence thereon , consolidation proceedings becoming validly recourse, thereupon, hence, till a final and conclusive adjudication, is, made upon RSA No. 365 of 2015, thereupon the respondents concerned, may not subject, the writ khasra numbers, and, suit khasra numbers to consolidation operations.”

Hig h C o urt of H.P on 17 03 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLALPA No. 1315.Reserved on: 4 th March 2021.Decided on : 10 th March 2021.Jagdish Ram & Ors....Petitioners. VersusState of H.P. & Ors. ....Respondents.Coram:The Hon’ble Mr. Justice Sureshwar Thakur Judge.The Hon ble Mr. Justice Sandeep Sharma Judge.Whether approved for reporting 1 Yes.For the Petitioner:Mr. R.K. Sharma Senior Advocatewith Ms. Vidushi Sharma Advocate.For Respondents No. 1 to 3:Mr. Sudhir Bhatnagar Mr.Narender Guleria Mr. Hemant Vaidand Mr. Ashwani Sharma Addl.A.Gs.With Mr. Kunal Thakur Ms. SvaneelJaswal and Mr. Vikrant Chandel Dy.A. Gs.For Respondent No.4:Mr. G.D. Verma Senior Advocate withMr.B.C. Verma Advocate. 1 Whether reporters of the local papers may be allowed to see the judgment Hig h C o urt of H.P on 17 03 HCHP Per Sureshwar Thakur Judge.The writ petitioner respondent No.4 herein in CWPNo. 7094 claimed the making of the hereinafter extractedmandamus upon the respondents: a) Directing respondents No.1 to 3 to completethe consolidation proceedings within a time boundperiod not exceeding 6 months. b)Directing the respondents to put thepetitioner in possession of his holdings prior to theconsolidation proceedings in 1982 till and so long asthe new proceedings under the Act are not finalizedand further directing the respondents to pay to thepetitioner compensation for the deprivation of hisproperty for the period he remained out ofpossession till the date of possession is restored tohim. c)Directing the Respondents to produce untothis Hon ble Court the entire record relating to theconsolidation proceedings so that justice is done.d) Any other writ order or direction as may bedeemed just and proper in the facts andcircumstances of the case may be passed in favour ofthe petitioner and against the respondents.”…2… Hig h C o urt of H.P on 17 03 HCHP 2.Through the impugned verdict made upon CWP No.7094 by the learned Single Judge the latter proceeded to after accepting the proposals made in sub clausesandofparagraph No. 5 by the Director Consolidation of Holding H.P. in an affidavit of 22nd December 2014 and as became swornby the latter officer and as became tendered before the Court in compliance to an order of 26.10.2004 hence make aconclusion that the writ petitioner respondent No.4 herein becoming unlawfully deprived of possession of the writproperty inasmuch as during consolidation proceedings hispossession upon the writ property became reduced fromhitherto 42.3 kanals to 23.16 kanals and also his concomitantphysical possession upon the writ property became reduced (i) wherethrough theapposite scheme of consolidation as prepared vis a vis thewrit kahsra numbers became rescinded and a direction waspronounced for rather with the apposite consensus ad idem ofall the right holder concerned in the contentious writ khasra…4… Hig h C o urt of H.P on 17 03 HCHP numbers hence a fresh consolidation scheme being preparedand thereafter consolidation operations under the aforenomenclatured statute being embarked upon.4.Necessarily the valid embarking upon or recoursingto the statutory mandate enshrined in the Act is comprised inthe relevant khasra numbers being free from any civil litigation appertaining to the title of the landowners concerned in and upon apposite khasra numbers whereons the exercising(s) ofjurisdiction under the Act is strived to be recoursed.Contrarily if there is an acid contest vis a vis validassumption(s) thereon of title by any or all the landownersconcerned thereupon uptil the dispute appertaining to thevalidity of title upon the khasra numbers concerned of orany of the land owners concerned becomes enjoined to becompletely rested by a conclusive and binding decree becoming made upon the apposite civil action by the Civil Courtconcerned and obviously thereupto the recoursing to themandate of the Act becomes completely forbidden.…5… Hig h C o urt of H.P on 17 03 HCHP 5.Be that as it may the afore impediments workingagainst the complete valid holdings of consolidationproceedings in the Mohal concerned whereons the writ khasranumbers are located is vociferously urged by the co respondents arrayed as respondents No.4 to 10 in the writpetition No. 7094 in their apposite reply(ies) wherein they asserted that they did rather acquire title to the suitproperty through adverse possession. Moreover an aliketherewith contention is reared in the LPA and the afore factumhas remained undenied by the writ petitioner respondent No.4herein. Untrovertedly when hence the apposite therewith RSANo. 3615 is subjudice before this Court and the lisborne therein appertains to the validity of canvassing(s) of theafore acquisition of title qua the suit khasra numbers hence bythe appellants herein and also an averment is raisedtherein vis a vis the appellants rather making interference(s) inthe ownership and possession of the writ petitioner arrayed asrespondent No.4 in the extant LPA upon hence vis a vis writ…6… Hig h C o urt of H.P on 17 03 HCHP khasra number or suit khasra numbers as the case may be and also the latter causing obstruction in the furtherprogression(s) of the partition proceedings hence subjudicebefore the Assistant Collector 1st Grade concerned.6.In aftermath even if the judgment and decreerendered by the Civil Court and though purportedlyappertaining to the writ khasra numbers or the suit kahsranumbers and also if in pursuance thereto mutations quatherewith became attested besides even if as alluded in theverdict of the learned Single Judge hence symbolic and physicalpossession of the writ khasra numbers or suit khasra numbers stood delivered to the writ petitioner arrayed as co respondentNo.4 in the LPA thereupon uptill a decision both final andconclusive becomes recorded upon RSA No. 3615 wherein also a purportedly alike dispute becomes encapsulated with respect to suit khasra numbers or the writ khasra numbersand or appertains to the validity of acquisition of titlethereons respectively by the appellants and or by the writ…7… Hig h C o urt of H.P on 17 03 HCHP petitioner arrayed as co respondent No.4 in the extant LPA …9…

Exemptions from Sales Tax valid pertaining to uniform policy of the state: Cuttack High Court

The order of the Assistant Commissioner of Sales Tax party allowing sales tax appeal filed by the Assessee which in turn challenged the assessment order passed by the Sales Tax officer held in Justice B.P.Routray in the matters of Akbari Continental Pvt. Ltd v. the State of Odisha. [STREV No. 20 of 2007]. Background of the case involves that the petitioner is a hotelier carrying on the business of providing lodging accommodation and manufacture and sale of food, drinks etc. The petitioner is the registered dealer under the OST Act. The petitioner also registered as a small-scale industry by the district Industry centre Cuttack. It claims to be eligible for the sales tax exemption under the industry Policy Resolution. The Industry Department issued a Registration Certification in its favour showing the date of commencement of production.  In the notification of the Finance Department (FD) Government of Odisha, Finished products would be allowed exemption taking into account the installed capacity. After the commencement of Intellectual property rights issued certificate exempting petitioner from payment of sales tax. In the certificate, the petitioner unit started fixed capital investment in terms of IPR and had gone into commercial production. Petitioner is eligible for sales tax exemption on the sale of its finished product for the period of seven years from the effective date as per IPR.  The claim form exemption from the payment of sales tax was disallowed on the grounds that there is no evidence that the petitioner’s unit had been set up in terms of the policy. It is noted that Clause- 7(3)(2) of the IPR read with rule 21 of the OST Rules, the petitioner was not eligible to get sales tax incentive on its finished products as a continuing unit of the policy. Exemptions under the sales tax are granted to number of commodities and for a various of reasons. Exemptions in sales tax covers all the necessaries. The Hon’ble Court held “Petitioner will be exempted from sales tax- Exempted to the person making supplies regardless of the nature of the outward supply. Certain supplies due to their nature and type are exempted from GST. All supplies that are notified would be eligible for the exemption”. There is no uniform policy and the practice differs from state to state. It would probably stand the test of administrative feasibility. The exemption are examined from the standpoint of equity and administrative expediency. 

IN THE HIGH COURT OF ORISSA AT CUTTACK STREV No.207 Akbari Continental Pvt. Ltd. Mr. Jagabandhu Sahoo Sr. Advocate versus State of Odisha Opp. Party Mr. S.S. Padhy ASCCuttack in S.A. 350 of 1999 2000 and S.A. No.3599 2000. 2. The aforementioned appeals one by the Petitioner Assessee S.A. No.350 of 1999 2000) and another by the Department S.A. No.352 of 1999 2000) arose from an order of the Assistant Commissioner of Sales Tax dated 30th March 1999 partly allowing the Sales Tax Appeal No.AA434 CUI W 98 99 filed by the Assessee which in turn challenged the assessment order dated 29th August 1998 passed by the Sales Tax OfficerCuttack I West Circle Cuttack under Section 12of the Orissa Sales Tax Act 1947 OST Act) for the assessment year1995 96. 3. While admitting the present revision petition this Court by an order dated 13th February 2007 framed the following two questions for consideration: i) Whether in the fact and circumstances of the case the petitioner namely M s. Akbari Continental Pvt. Ltd. is a Hotel" or comes under "Guest House and Restaurants" under Clause 27 of the ineligibility list so as not be entitled to sales tax exemption under Entry 30 FFFF vide Finance Department Notification dated 16.08.1990 ii) Whether in the facts and circumstances of the case disallowance of the case disallowance of claim of first point sale of cold drinks and IMFL U s. 5(2)(a) read with Section 8 of the Act is sustainable in law " 4. It must be was mentioned here that on 28th January 2010 this Court stayed the re assessment pursuant to the notice dated 12th January 2010 issued to the Petitioner by the STO asking that books of account for the period of 1995 1996 be produced pursuant to the impugned order of the Tribunal. 5. The background facts are that the Petitioner is a hotelier carrying on the business of providing lodging accommodation and manufacture and sale of food drinks etc. The Petitioner is a registered dealer under the OST Act. The Petitioner it also registered as a small scale Industry by the District Industries Centre Cuttack. It claims to be eligible for sales tax exemption under the Industrial Policy Resolution IPR 1989). The Industry Department issued a Registration Certificate dated 19th April 1988 in its favour showing the date of commencement of production as 19th February 1988. 6. It is stated that in terms of a Notification dated 16th August 1990 of the Finance DepartmentGovernment of Odisha finished products would be allowed exemption taking into account the installed capacity. After the commencement of the IPR 1989 the General Manager DIC Cuttack issued a certificate dated 19th September 1992 exempting the Petitioner from payment of sales tax. In the said certificate it was noted that the Petitioner s unit had started fixed capital investment in terms of IPR 1980 and had gone into commercial production on 10th February 1988. further certified that since the Petitioner’s SSI unit was a continuing unit under the 1980 Policy it was eligible for sales tax exemption on the sale of its finished products for a period of seven years from the effective date as per IPR 1989. 7. In the assessment order dated 29th August 1998 passed by the STO Cuttack for AY 1995 96 the claim for exemption from payment of sales tax was disallowed on the ground that there is no evidence that the Petitioner’s unit had been set up after 1st August 1980 prior to 1st April 1986 in terms of the 1980 Policy. The STO therefore did not accept the Petitioner s unit one to be one continuing under the 1980 policy. It was noted that under Clause 7.3.2 of the IPR 1989 read with Rule 21 of the OST Rules the Petitioner was not eligible to get sales tax incentives on its finished products as a continuing unit of the 1980 policy. It was noted that the hotel was eligible for sales tax loan as per IPR 1980 but the Petitioner did not avail of that loan. Therefore the Petitioner had not satisfied the condition laid down in clause 7.3.2 of paragraph III of the IPR 1989. It was further observed that IPR 1989 did not provide for sales tax incentives to hotels making a fixed capital investment prior to the operational period of IPR 1989. 8. Aggrieved by the above assessment order the Petitioner went in appeal before the ACST with AA 435 CU I W 1998 99. By order dated 30th March 1999 the ACST noted that the Petitioner was entitled to exemption under Sl. NO. 30 FFFF of the Tax Free Schedule as a continuing unit of IPR 1980. It was noted that the General Manager DIC Cuttack by a letter dated 24th December 1996 drew the attention of the STO to the fact that as per the recommendation dated 20th January 1995 of the State Level Empowered Committee the Petitioner was held to be entitled to sales tax exemption. However the 7th State Level Empowered Committee at a meeting held on 30th April 1996 reversed its earlier decision. This decision was communicated by the Director DIC to the STO on 25th January 1997. The ACST held that the Petitioner was thus entitled to exemption at least till 30th April 1996. As regards purchase or sale of soft drinks IMFL and cigarettes which were not manufactured or processed by the Petitioner it was held that the Petitioner was entitled to sales tax incentive. Thus only such deductions as were usually available in respect of such goods as first point tax paid goods were allowed. As a result the amount payable under the assessment order was reduced to Rs.37 860 . The excess tax paid was asked to be refunded. 9. Aggrieved to the extent of its other claims relating to sale of IMFL and cold drinks the Petitioner filed S.A. No.350 of 1999 2000 in the Tribunal. Aggrieved to the extent that the tax payable was reduced to Rs.39 600 the Department filed S.A. No.3599 2000. 10. Both the appeals were disposed of by a common order of the Full Bench of the Tribunal. It is held that soft drinks were purchased from unregistered dealers and there could be no presumption that the goods had suffered tax at the first point of sale. Therefore the Tribunal concluded that the ACST had wrongly allowed deduction of sales turnover of soft drinks by treating the same as first point tax paid goods. 11. As regards the claim for tax exemption under Entry No.30 FFFF of the IPR 1989 it was held that the Petitioner was not eligible for the said tax exemption since it had failed to produce any certificate to show that it was a SSI unit set up after 1st August 1980 and before 1st April 1986 and that it had gone into commercial production after 1st April 1986. Further the Tribunal held that the assessment in respect of sale of IMFL as well as soft drinks was found to be not in accordance with the provisions laid down under the OST Act. It was held that with the Petitioner having purchased IMFL worth Rs. 7 28 517.66 during the year under assessment the ACST could not have allowed deduction of the entire sales turnover of Rs. 16 38 814.35. Further the Petitioner Assessee had not bifurcated the purchase and sale turnover in IMFL for the period from 1st April 1995 to 13th July 1995 and 14th July 1995 to 31st March 1996. It was held that this required further enquiry. 12. It was sought to be contended by the Department that in the list of industries excluded from the exemption provision under Entry No.30 FFFF was "Guest House and Restaurant". The Department contended that the activities in the restaurant run by the Petitioner was distinct from that of the hotel and therefore the dealer s business related to the restaurant was not eligible for tax concession. This explanation was accepted by the Tribunal. The matter was accordingly remanded to the STO for a fresh assessment. The re assessment notice has already been stayed by this Court. 13. This Court has heard the submissions of Mr. Jagabandhu Sahoo learned Senior counsel for the Petitioner and Mr.S.S. Padhy learned ASC for CT & GST. 14. As regards the first issue Mr. Sahoo states that that the DIC Certificate referred to above was indeed produced before the Tribunal and had also been referred to in a brief written note submitted by the Petitioner. That the Petitioner continued to be a ‘hotel’ and that it was not a restaurant in terms of Sl. No. 27 of the ‘ineligible list’ was apparent from the deposition made by the General Manager DIC before the STO on 14th DIC. November 1996 pursuant to a summons issued to him under Section 21 of the OST Act. Mr. Sahoo relied on the decision in Vadilal Chemicals Ltd. v. State of Andhra Pradesh 5 RC 295 in the Supreme Court disapproved of the sales tax authorities disregarding the exemption certificate issued by a 15. On the second issue Mr. Sahoo points out that the Petitioner purchased IMFL in bottles and sold it in the Hotel’s Bar by way of pegs in loose quantity for consumption. There was obviously a wide gap between the purchase value and the sales price. The purchase of IMFL having been subjected to sales tax in the State of Orissa and there being no dispute that it had suffered sales tax the subsequent sale of IMFL at a higher price cannot be subject to further levy of tax under the OST Act. Likewise for the sale of cold drinks there was no controversy that the Petitioner was not their first seller and that they had already suffered sales tax. The purchase bills in this regard had been produced before the STO. Therefore these too were not exigible to sales tax under Section 8 of the OST Act. He placed reliance on the orders p[assed by the Tribunal in the Petitioner’s own case for the AYs 1993 94 1994 95 and 1996 97. 16. Mr. Padhy learned ASC sought too defend the impugned order of the Tribunal by submitting that the activity of the Petitioner in selling IMFL and cold drinks in its Bar and restaurant was distinct from the service offered by it in the hotel and therefore those sales in its ‘restaurant’ would be covered in the ‘ineligible list’. Further there was indeed no clear demarcation of the IMFL stocks for the two distinct periods and this required further enquiry. Therefore the remand to the STO was justified. Issue17. The above submissions have been considered. In the first place it requires to be noted that it was not the case of the Department before the STO or the ACST that the Petitioner was not a unit under the 1980 Policy or a unit continuing as such under the 1989 IPR or that it had not been issued a certificate by the DIC. The point of controversy was whether by selling IMFL cold drinks in its hotel it was part of the list of units excluded from exemption under Sl. No. 27 of IPR 1989 18. In this context Clause 2.18 of the IPR 89 is relevant: Continuing units of 1980 Policy" means any industrial Unit where fixed capital investment commenced on or after the 1st August 1980 and prior to the 1st April 1986 and the unit has gone or goes into commercial productionafter the 1st April 1986." 19. The wording of Clause 3 of the certificate dated 18th April 1995 issued by the DIC Cuttack reads as under: The unit being a small scale continuing unit of 1980 policy and having surrendered the Sales Tax loan availed by it within the prescribed time limitis eligible for exemption from payment of Sales Tax on sale of its finished products for a period of 7 years from the effective date of IPR 89 and subject to such restrictions and conditions as laid down in Finance Deptt. Notification No.789 90 dt.15.8.90 as amended from time to time." 20. The above certificate therefore should have dispelled any doubt as regards the Petitioner’s eligibility for sales tax exemption. In fact the same certificate has been relied upon by the Petitioner and accepted by the Tribunal in its orders dated 7th January 2008 21st November 2007 and 21st May 2007 for the AYs 1993 94 1994 95 and 1996 1997 respectively. In each of the aforementioned orders passed after the impugned order was passed by the Tribunal on 4th September 2006 for AY 1995 96 the Tribunal has noted that in terms of the above exemption certificate the Petitioner was exempt from paying sales tax on its finished products i.e. cooked food and beverages for a period of seven years from 1st December 1989 till 30th November 1996. The AY 1995 96 with which the present revision petition is concerned is covered in this period. 21. In each of the orders for the aforementioned three AYs the Tribunal has accepted the finding of the ACST that "hotel is different from guest house and restaurant" and that the eligibility certificate issued by the DIC cannot be nullified by the Department and cannot be withdrawn on the basis of resolution of the State Level Empowered Committee dated 30th April 1996. The Tribunal has consistently held that “cooked food served in the restaurant of the dealer who is a hotelier is entitled for tax exemption under Serial No.30 FFFF of tax exemption schedule.” 22. When the Department sought to refer to the impugned order for AY 1995 96] the Tribunal distinguished it by observing that the finding therein had been rendered only because of the failure of the Petitioner to produce the exemption certificate. However the fact that the DIC had indeed issued the aforementioned eligibility certificate on 18th April 1995 was never in dispute. 23. In any event as explained by the Supreme Court in Vadilal Chemicals Ltd. v. State of Andhra Pradesh the Department certainly could not assume the exemption was wrongly granted nor did he have the jurisdiction under Section 20 of the State Act to go behind the eligibility certificate and embark upon a fresh enquiry with regard to the appellant s eligibility for the grant of the benefits. The counter affidavit filed by the respondents sales tax authorities is telling. It is said that the Sales Tax Department had decided to cancel the eligibility certificates for sales tax incentives. As we have said the eligibility certificates were issued by the Department of Industries and Commerce and could not be cancelled by the Sales Tax Authorities 9 SCC." 24. The Tribunal has for the aforementioned three AYs 1993 94 1994 95 and 1996 1997 rejected the plea of the Department that the Petitioner’s unit is to be categorized as a ‘restaurant’ and denied the exemption in terms of Entry 30 FFFF. This Court finds no reason why only for AY 1995 96 the Department’s case ought to be accepted by the Tribunal particularly since the eligibility certificate issued by the DIC is the same for all these AYs. 25. Consequently question is answered in favour of the Petitioner and against the Department by holding that the Petitioner is a hotel and does not fall under Clause 27 of the ineligibility list of IPR 1989 and is entitled to sales tax exemption under Entry 30 FFFF in terms of the Finance Department Notification dated 16th August 1990. Issue26. There are two components of sales in question here. One is regarding the tax payable on sale of cold drinks and the other on the sales of IMFL. As regards the sale of cold drinks it is not in dispute that the Petitioner is not the first seller in respect of cold drinks. It has produced the invoices to show from whom it has purchased the soft drinks. The Tribunal appears to have rejected these invoices only because the seller was not a registered dealer. But the Tribunal has for the AYs 1993 94 and 1996 97accepted that the cold drinks have suffered tax at the first point of sale and that irrespective of the sellers of such cold drinks not being registered dealers themselves the cold drinks cannot be made exigible again to sales tax. This appears position also flows from a reading of Section 8 read with Explanationto Section 5(A)of the OST Act. 27. In this context Mr. Sahoo is right in placing reliance on Govindan and Company v. State of Tamil Nadu 35 STC 50 where the Madras High Court held that to claim benefit of tax on the ground that the sales effected by the Assessees were second sales they need not show that their sellers had in fact paid the tax at the first point. It was enough for them to show that the earlier sales were taxable sales and the tax was really payable by their sellers. This decision of the Madras High Court has been affirmed by the Supreme Court in State of Tamil Nadu v. Raman & Company33 STC 1. Likewise in State of Tamil Nadu v. Chamundeswari 52 STC 124 it was held as under: The learned counsel for the revenue contends before us that the assessee must for getting exemption in relation to his sale not only show that his sale was not the first sale but also prove that the first sale has suffered tax in the State. We are not inclined to accept this proposition of law as correct. If the sale effected by the assessee is not the first sale then under the provisions of the Act that sale cannot be brought within the net of taxation and it is for the revenue to search the first seller and levy tax on the first sale. It is not for the assessee who is the subsequent seller to show that the first sale has been taxed. Once it is found that the assessee s sale is a subsequent sale and there has been a first sale in respect of the same goods earlier in the State then it is for the authorities to proceed to levy that transaction of first sale and the onus cannot be thrown on the assessee to show that the first sale has suffered tax. The onus on the subsequent seller is only to point out that there has been a first sale and the onus is not on him to show that the first sale has in fact suffered tax. This is the view this Court has taken in two earlier decisions reported in Govindan Company v. State of Tamil Nadu 35 STC and Deputy Commissioner Vijayalakshmi Mills Ltd.40 STC 463." 28. This was reiterated by the Madras High Court in State of Tamil Nadu v. A.R. Duraisamy Chettiar and Brothers 61 STC 360is accordingly answered partly in favour of the Petitioner by holding that the disallowance of claim of first point sale of cold drinks under Section 5(2) (a) read with Section 8 thereof was not sustainable in law. However the observation of the Tribunal in regard to the issue of sale of IMFL requiring further enquiry is upheld and the issue of sale of IMFL by the Petitioner for the AY 1995 96 is therefore remanded to the Assessing Authority for a fresh determination. 31. The revision petition is disposed of in the above terms and the order dated 4th September 2006 of the Tribunal stands modified accordingly. 32. The records of the Tribunal if requisitioned be returned forthwith. A certified copy of this order be sent by Special Messenger to the Assessing Authority concerned for further enquiry as held in para 31 above. 33. An urgent certified copy of this order be issued as per rules. Chief Justice Judge K.C Bisoi

No DNA Test unless dispute regarding birth or school records:Tripura High Court

The issue as to whether the DNA Test can be allowed in case which involves demand for direction from the court to permit DNA Test of the first respondent for the purpose of determining parentage of the person to prove the allegation of the petitioners that the respondent is not the biological son of the deceased father, who was the owner of the properties in dispute was decided upon by the Tripura High Court bench consisting of Justice T Amarnath Goud in the matters of Nirmal Ghosh and Ors. vs. Partha Ghosh and Ors. CRP 14 of 2020 decided on 4.1.2022. The facts of the case are that the petitioner strongly believe that respondent is not the son of their deceased father who had executed a will.The respondent has been selling certain properties on the pretext of the said will, which are the subject matter of dispute in the trial.This led them to the demand for the DNA test to ascertain if the respondent is genuinely the son of the deceased father, Kshitish Ghosh and their mother, Fulu Rani Ghosh. The petitioners contended that during the trial, the respondent transferred the disputed properties to third parties and if they were successful before the court, nothing would be left to the plaintiffs, who were brothers. They placed reliance on supreme courts decision in Goutam Kundu v. W.B. State and Anr., that DNA Test was required to prove the authenticity of the parents. The Tripura High Court held unless there is an objection in the birth certificates and school records showing that Kshitish Ghosh is not the father of the first defendant, Partha Ghosh, there can be no direction to test the first defendant’s DNA.The petitioner should choose to challenge these documents before a plea for DNA testing could be accepted. The Court also refused to make any observations on the facts of the dispute and accordingly held that it was not its task to delve into the disputed facts when appropriate remedies were available to the parties. Concern expressed by petitioners, who are siblings of the deceased, that their biological siblings have vested rights and interests in their properties as legal heirs and that nothing is left if the first respondent and his spouse transfer the property and create a third party interest.The Court afforded the plaintiff the freedom to bring to the relevant court applications seeking appropriate remedies in support of its claims to protect the disputed property.

HIGH COURT OF TRIPURA CRP 120 1. Shri Nirmal Ch Ghosh S O. Late Ganesh Ghosh Village Ganki P.O. Ganki. Khowai District Khowai Tripura. 2. Shri Bimal Ghosh S O. Late Ganesh Ghosh Village Ganki P.O. Ganki. Khowai District Khowai Tripura. 3. Smt. Sucharu Bala Ghosh W O Shri Badal Ghosh Village Ganki P.O. Ganki Khowai District Khowal Tripura. 4. Smt. Kalpana GhoshW O Sri. Shyamal Biswas. resident of Barjalla P.O Barjalla Agartala District West Tripura 5. Shri Biswajit Ghosh S O. Late Naresh Ch Ghosh. resident of B.B.C Para. P.O Khowai. District Khowai Tripura. 6. Shri Prasenjit Ghosh S O. Late Naresh Ch Ghosh. resident of B.B.C Para. P.O Khowai. District Khowai Tripura. 7. Smt Pratima Ghosh W O Late Subhash Ch Ghosh. Village Ganki P.O. Ganki. Khowai District Khowai Tripura. 8. Sri Mahitosh Ghosh S O Late Subhash Ch Ghosh. Village Ganki P.O Ganki. Khowai District Khowal Tripura. 9. Smt. Dipika Ghosh D O Late Subhash Ch Ghosh. Village Ganki P.O. Ganki. Khowai District Khowal Tripura. 10. Sri Prantosh Ghosh S O Late Subhash Ch Ghosh. Village Ganki P.O. Ganki. Khowai District Khowai Tripura. Petitioner(s) 1. Sri Partha Ghosh and Ors S O. Unknown. C O Sri Kumod Sarkar Kalikapur Agartala P.O.Ramnagar. West Tripura. 2. Smt Chumki Das W O. Sri Partha Ghosh. C O Shri Kumod Sarkar. Kalikapur Agartala PO Ramnagar West Tripura 3. Smt. Rekha Rani DeyW O Late Debasish Ch. Roy Town Ganki PO Ganki Khowai District Khowai Tripura. ii)Miss Diya Roy D O Late Debasish Ch. Roy Town Ganki PO Ganik Khowai District Khowai Tripura. 4. Shri Jadu Roy S O. Late Digendra Kr. Roy Town Ganki PO Ganki Khowai District Khowai Tripura. 5. Shri Bimal Deb S O. Late Pushpa Ghosh Lalcharra P.O Khowai District Khowai Tripura. 6. Smt Reba Das W O Shri Bimal Deb Lalcharra P.O Khowai District Khowai Tripura. Respondent(s) For Petitioner(s) For Respondent(s) Date of hearing Date of delivery of judgment & Order Whether fit for reporting Mr. T. D. Majumder Sr. Adv. Mr. S. Lodh Adv. 04.01.2022 04.01.2022 No HON’BLE MR. JUSTICE T. AMARNATH GOUD Judgment & Order It is the case of the petitioner that the respondent is not the son of the deceased Kshitish Ghosh and under the garb of certain Wills the respondent is selling the properties which is in dispute before the trial court and the application which is said to be dismissed seeking to get the DNA tested the petitioner is before this court. The counsel for the petitioner submits that the first respondent is alienating the properties to third parties and nothing remains for the petitioners who are the siblings if they succeed before the trial court. Counsel for the first respondent who claims to be the son of the deceased Kshitish Ghosh and his spouse Fulu Rani Ghosh submits that in his school records and birth certificate and all documents indicates that the respondent is the son of the deceased Kshitish Ghosh and relied upon a judgment by the apex court in Goutam Kundu vs State of W.B and AnotherNo.26492 decided on 14 05 1993) which says that in a routine manner the blood test need not be conducted to prove the genuineness of the parents. Heard both sides. It is not in dispute that the petitioners herein who are the petitioner plaintiffs before the trial court that they are aware of the certificates like Birth Certificate School Records and certificate from Revenue Department Aadhar Card Ration Card and the certificate issued by the Magistrate to show that where it reflects the name of Partha Ghosh son of Kshitish Ghosh and Fulu Rani Ghosh remains unchallenged. The only attack of the petitioner plaintiffs before the trial court is challenging the Will and to declare the petitioner plaintiffs as legal heirs and not the first respondent Partha Ghosh. Unless and until there is a challenge to the birth documents and school register to show that Kshitish Ghosh is not the father of the first respondent Partha Ghosh there cannot be any direction to get the DNA of first respondent tested to declare whether he is the son of the deceased Kshitish Ghosh and Fulu Rani Ghosh or not. It is not for this court to go into the disputed question of facts when appropriate remedy is available to the parties. The concern expressed by the petitioners who are the siblings of the deceased that they have the vested right and interest over the properties of their biological brother as legal heirs and nothing remains if the first respondent and his spouse proceeds alienating the properties and create third party interest. It is not for this court to decide this aspect. However petitioners plaintiffs are at liberty to move applications before the concerned court seeking appropriate remedy in support of their claim to protect the property. In the event of filing of any such application it is for the court below to consider the same on its own merit without being influenced by the observation made by this court in this revision petition. For the reasons mentioned above this court is not inclined to interfere with the present CRP and accordingly the same stands dismissed and the orders passed by the trial courts are not interfered. In view of the above interlocutory application lying pending if any stands disposed of. Send down the LCRs forthwith. JUDGE

Unless the matter of transfer is capital assets, there cannot be any demand under Chapter IV of the Income Tax Act: High Court of Karnataka

Chapter IV of the Income Tax Act deals with all forms of income that does not form a part of the total income. For this reason unless the matter of transfer is capital assets, no demand can be made under this chapter of this Act. This was held in the judgement passed by a bench of the High Court of Karnataka consisting of Justice B.V. Nagarathna and Justice Hanchate Sanjeevkumar in the case of Nataraja v Pr. Commissioner of Income Tax, Mysuru [Writ Appeal No. 1078/2018 T-IT] pronounced on 15th of July 2021. The appellant, Nataraja filed the writ appeal under Section 4 of the Karnataka High Court Act praying for order by the single judge in WP No. 54836837/2017 (T-IT) to be set aside. The impugned order observed that the appellants had bye-passed the remedy available to them under Section 246A of the Income Tax Act 1961 and had availed the revisional remedy under Section 264 of the Act and concluded that there was no infirmity the said order and had the writ petition dismissed. For this reason the appellant decided for the present appeal. It was held that if an assessee is aggrieved by an assessment order, he has the option of either an appeal before the commissioner under Section 246A of the Income Tax Act or a revision reition under Section 264 of the Act before the revisional authority. The appellant’s grievance was that the lands in question situated in Vajamangala Village in Mysore attracted tax on capital gains in as much as the mentioned lands were capital assets. It was contended that in Chapter-IV of the Act which deals with computation of income from capital gains, it is held that such gains are to be calculated by deducting from the full value of the consideration received or accruing as a result of the transfer of the capital asset, certain amounts. In the immediate case, it was found that the aforesaid provisions were not applied to the facts of the case.

: 1 : IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF JULY 2021 THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA THE HON’BLE MR. JUSTICE HANCHATE SANJEEVKUMAR WRIT APPEAL No.1078 2018S o late Madappa Aged about 50 years. 2. S.Jeevan. 3. S.Pavan. Aged about 11 and 9 years S o late SiddarajuRep. by their Natural Guardian Mrs.Geetha W o late Siddaraju. All residing at Vajamangala Village Varuna Hobli Mysuru 570 010. By Smt.Vanaja M.R. Advocate) 1. Pr. Commissioner of Income Tax Mysuru 21 16 Residency Road Nazerbad Mysuru 570 010. 2. Income Tax Officer Ward 1(1) Mysuru 570 010. By Sri.Jeevan J.Neeralgi Advocate) ...APPELLANTS ... RESPONDENTS : 2 : This writ appeal is filed under Section 4 of the Karnataka High Court Act praying to set aside the order the Writ Petition Nos.54836 dated 20 02 2018 837 2017passed by the Single Judge and allow the This appeal coming on for ‘Preliminary Hearing’ this day NAGARATHNA J. delivered the following: JUDGMENT Though this appeal is listed for preliminary hearing with the consent of learned counsel for the appellants and learned standing counsel for the respondent Revenue it is heard finally. 2. The legality and correctness of the order dated 20.2.2018 passed by the learned Single Judge in Writ Petition Nos.54836 387 2017 is called in question in this intra court appeal. 3. By the impugned order learned Single Judge in appellants assessees had by passed the remedy available to them under Section 246A of the Income Tax Act 1961 hereinafter referred to as ‘the Act’ for the sake of brevity) and had availed the revisional remedy under Section 264 of the Act. Further learned Single Judge while considering : 3 : the order of the revisional Authority passed under Section 264 of the Act has extracted paragraph Nos.6 to 9 of the said order and concluded that there was no infirmity in the said order and accordingly dismissed the writ petition. Being aggrieved the assessees have preferred this appeal. 4. We have heard learned counsel Smt.Vanaja M.R. for the appellants and learned counsel Sri.Jeevan J.Neeralgi for the respondent Revenue and perused the material on record. 5. At the outset we wish to clarify that if an assessee is aggrieved by the assessment order then he could either prefer an appeal before the Commissioner Appeals) under Section 246A of the Act which is a statutory appellate remedy or in the alternative could also prefer a revision petition under Section 264 of the Act. Admittedly in the instant case the appellants assessees did not choose to file an appeal. However they filed a revision petition under Section 264 of the Act before the revisional Authority as they were aggrieved by the order of the Assessing Officer. Therefore the assessees were well within their right to have opted for the remedy by way of a revision. Hence we find that the learned Single Judge : 4 : was not right in making observations with regard to the fact that the assessees choose to file a revision under Section 264 of the Act instead of filing an appeal under Section 246A of the Act. 6. As already observed it is the option of the assessee either to file an appeal or to file a revision. Therefore all the observations made with regard to the assessees herein exercising their option to file a revision under Section 264 of the Act and not file an appeal under Section 246A of the Act cannot be sustained. 7. Coming to the merits of the case the grievance of the assessees was the lands in question bearing Sy.No.119 Part measuring 1 Acre 22½ Guntas and Sy.No.213 1 Part 3 Acres and 4½ Guntas situated at Vajamangala village Varuna Hobli Mysore Taluk which was the subject matter of a joint development agreement between the assessees and M S. Skill Tech Engineers and Contractors Pvt. Ltd. attracted tax on capital gains inasmuch as the said lands were capital assets. In this context it is necessary to observe that Chapter IV of the Act deals with computation of income from capital gains. that chapter Section 48 deals with mode of : 5 : computation. The income chargeable under the head ‘capital gains’ has to be computed by deducting from the full value of the consideration received or accruing as a result of the transfer of the capital asset certain amounts namely expenditure incurred wholly and exclusively in connection with such transfer and the cost of acquisition of the asset and the cost of any improvement thereto as detailed in the said provision. 8. Af course there are provisos to Section 48 of the Act which may not be applicable in the instant appeal. But what is significant to note is the expression “transfer of capital asset”. The expression ‘transfer’ and the expression ‘capital asset’ are both defined under the Act. The expression ‘capital asset’ is defined under Section 2(14) of the Act. While defining capital asset under the said provision agricultural land in India is not included. However by way of exception certain agricultural lands are included which are stated in Section 2(14)(iii)(a) orof the Act. Therefore before applying Section 48 of the Act it is necessary to ascertain whether the subject matter of transfer namely immovable property or agricultural land or not. If it is to be construed to be agricultural land then the parameters as stipulated under : 6 : Section 2(14) of the Act has to be applied. In the instant case we find that the Assessing Officer has not applied the parameters as stipulated under Section 2(14)(iii) inasmuch as either sub clauseor sub clausewould apply. Even while applying the said sub clauses there are certain criteria mentioned within the sub clauses which have been applied to the subject matter of transfer before demanding tax on capital gains on the transfer of land. 9. Further Section 2(47) defines “transfer” in relation to a capital asset. Therefore there has to be a transfer of a capital asset within the meaning of Section 2(47) of the Act also before the said tax is attracted. 10. Hence if there istransfer andof a capital asset as defined under the provisions of Section 2 of the Act then it would attract Section 48 and other related provisions of Chapter IV of the Act for the purpose of raising a demand with regard to ‘capital gains’. 11. In the instant case on perusal of the order of the Assessing Officer we find that the aforesaid provisions have not been applied to the facts of the case. Although there is a detailed discussion with regard to the nature of the transaction as to whether it is a transfer or not we : 7 : find there is no application of mind as to whether the subject lands are capital asset or not. We reiterate that unless the subject matter of transfer are capital assets there cannot be any demand under Chapter IV of the Act. Therefore the assessees herein preferred a revision under Section 264 of the Act. 12. Admittedly the revision petition was filed in time as the limitation period is one year from the date on which the order in question was communicated or the date on which the assessee otherwise came to know of it. There is no controversy with regard to the revision petition being belated in the instant case. However we find that the revisional Authority had to consider the revision in light of the observations we have made above as the Assessing Officer has not considered the case in that light. 13. Learned Single Judge has simply extracted paragraphs 6 to 9 of the revisional order and has not considered whether subject lands were indeed capital asset or not which was the subject matter of transfer in the instant case. 14. In the circumstances we set aside the order of the revisional Authority as well as the order of the : 8 : Assessing Authority dated 27.3.2017 and 21.3.2014 respectively. We remand the matter to the concerned Assessing Officer to consider the case of the assessees in light of the observations made above and in accordance with law and within the time stipulated after issuing notice to the appellants assessees. 15. In the circumstances the order of the learned Single Judge is set aside. The appeal is allowed and disposed in the aforesaid terms. Parties to bear their respective costs. Sd JUDGE Sd JUDGE

Grant of Permanent Commission is not an entitlement : Delhi High Court

The non-filing of an application before the AFT, could best be a procedural irregularity. The High Court bench consisting of J. Prathiba M Singh and  J. Subramonium Prasad decided upon the matter of CDR Ravindra Pal Singh & Ors v. Union of India & Ors. [W.P. (C) 11230/2020], dismissed three writ petitions seeking grant of Permanent Commission, stating that the same was not an entitlement. The Petitioner had filed before the AFT an application seeking direction against non-consideration for  grant of Permanent Commission to which the AFT had granted interim relief to the petitioners. The petitioner filed the present petition challenging the impugned order passed by the learned Armed Forces Tribunal (AFT) previously. As per the respondents, the petitioners were shortlisted and the Selection Board was constituted for consideration of grant and later decided that the petitioners were not entitled to any relief. The counsel for petitioner submitted that the petitioners were protected by the interim order passed by the AFT and the discharge order would in effect be violative of the said interim order. The counsel for the respondents submitted that the directions of the Supreme Court  had been carried out in letter  and in spirit. In any event, the non-filing of an application before the AFT could best be a procedural irregularity on part of the respondents.   The court held that the ideal course of action for the Respondents, during the operation of an interim order, was to move before the AFT. However, since the court in the present petition was only concerned as to whether the respondents had implemented the directions given by the SC. The court found that the grant of Permanent Commission was duly considered. Further the court stated “Under these circumstances, no interference is called in the present petitions, under Article 227 of the Constitution. The question as to whether the policy applied and whether the rejection of Permanent Commission to the Petitioners is valid or not, would have to be decided on merits by the Tribunal, either in the pending petitions or in any fresh challenge which may be mounted by the Petitioners”. The petitions were dismissed, however, the court, considering,  that the petitioners had served for several years in the Navy and that they would be required to look for fresh accommodation, as also on humanitarian grounds during the global pandemic, they were permitted 3 months to vacate their official accommodations.

9 10 11 IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 28th December 2020 W.P.(C) 11230 2020 CDR RAVINDRA PAL SINGH UNION OF INDIA AND ORS. Through: Mr. Jaideep Singh Advocate Petitioner Through: Mr. Harish Vaidyanathaan Shankar Respondents Advocate W.P.(C) 11231 2020 CDR AMIT KHAJURIA UNION OF INDIA AND ORS. Petitioner Through: Mr. Jaideep Singh Advocate Through: Mr. Harish Vaidyanathaan Shankar Respondents Advocate W.P.(C) 11232 2020 CDR MANIKSH KUMAR SINGH UNION OF INDIA AND ORS. Petitioner Through: Mr. Jaideep Singh Advocate Through: Mr. Harish Vaidyanathaan Shankar Respondents Advocate HON BLE MS. JUSTICE PRATHIBA M. SINGH HON BLE MR. JUSTICE SUBRAMONIUM PRASAD Prathiba M. Singh J.(Oral) 1. This hearing has been done by video conferencing. CM.APPL 35027 2020in W.P.(C) 11230 2020 CM.APPL 35029 2020in W.P.(C) 11231 2020 CM.APPL 35031 2020in W.P.(C) 11232 2020 Allowed subject to all just exceptions. Applications are disposed of. W.P.(C) Nos.11230 11232 2020 W.P.(C) 11230 2020 & CM.APPL 35026 2020W.P.(C) 11231 2020 & CM.APPL 35028 2020W.P.(C) 11232 2020 & CM.APPL 35030 2020The present three writ petitions have been filed challenging the impugned order dated 24th December 2020 passed by the learned Armed Forces Tribunal by which the applications moved by the Petitioners seeking stay of discharge as per order dated 18.12.2020 passed by the Ministry of Defence have been dismissed by the ld. AFT. The Petitioners had originally filed petitions before the AFT seeking directions against non consideration for grant of Permanent Commission. In the said petitions filed before the AFT an interim order was passed on 21st December 2018 to the following effect: “ This is an application by virtue of which interim directions are sought with regard to the orders dated 28th September 2018 having been passed by the respondents in respect of Mr. Amit Khajuria Mr. M.K. Singh Mr. R.P. Singh and Mr. Varun Sharma who are the applicants in these cases and whose names are appearing at Sr. No.26 28 31 and 38 respectively. 2. With regard to the letter dated 28th September 2018 ordering the release of the applicants against the respective dates in the month of August 2019 the contention of the learned counsel for the applicant is that similarly placed officers are already enjoying the effect of interim directions against the discharge on account of the fact that they have been arbitrarily denied the grant of consideration for Permanent Commission and the said matters are listed now for 10th January 2019. 3. It has also been pointed out that similar issue with regard to the grant of Permanent Commission to Naval Officers in certain special branches is under the W.P.(C) Nos.11230 11232 2020 consideration of the Hon’ble Supreme Court and no final view has been taken by it. 4. It is accordingly prayed that till the time the Hon’ble Apex Court takes a final view in the matter the release from service of the aforesaid officers be also stayed. The respondents were represented through Mr. Bhati Senior Central Government Standing Counsel in response to the advance copy having been served. Learned counsel has made a statement on instructions that they do not intend to file any reply and have not disputed the submissions made by learned counsel for the applicant. 5. We have carefully considered the averments made in the application as well as the documents placed on record. We are satisfied that the applicants are having a prima facie good case and are likely to succeed on account of the fact that similarly placed persons are already enjoying interim directions against their release till the time the Hon’ble Apex Court takes a final view and therefore there is no reason to take different view than the one which has already been taken by the Bench in other cases when the balance of convenience is also in favour of the applicants. Further the applicants will suffer irreparable loss in case the benefits of the said order are not extended to 6. Accordingly the operation of the impugned order dated 28th September 2016 in respect of the applicants is stayed till further orders. A copy of the order shall be given ‘dasti’ to the learned counsel for the parties for compliance. 7. Expression of any opinion hereinbefore may not be treated as an expression on the merits of the main matter and is tentative keeping in view the fact that the matter is still under the consideration of the Hon’ble Apex Court. 8. Accordingly MAs are disposed of.” W.P.(C) Nos.11230 11232 2020 As can be seen from the above interim order the case of the Petitioners before the AFT was that the question as to grant of Permanent Commission was pending before the Supreme Court and there were other similarly placed persons in whose favour certain interim directions had been passed. In view of the said position the ld. AFT had granted interim relief to the petitioners. It is the admitted position not disputed by either parties that the Supreme Court has by a detailed judgment dated 17th March 2020 titled Union of India & Ors.. v. Lt. Cdr Annie Nagaraja & Ors. passed the following directions: “96. We hold and direct that: i) The statutory bar on the engagement or enrolment of women in the Indian Navy has been lifted to the extent envisaged in the notifications issued by the Union Government on 9 October 1991 and 6 November 1998 under Section 9(2) of the 1957 Act ii) By and as a result of the policy decision of the Union Government in the Ministry of Defence dated 25 February 1999 the terms and conditions of service of SSC officers including women in regard to the grant of PCs are governed by Regulation 203 Chapter IX Part III of the 1963 Regulations iii) The stipulation in the policy letter dated 26 September 2008 making it prospective and restricting its application to specified cadres branches of the Indian Navy shall not be enforced iv) The provisions of the implementation guidelines dated 3 December 2008 to the extent that they are made W.P.(C) Nos.11230 11232 2020 prospective and restricted to specified cadres are quashed and set aside v) All SSC officers in Education Law and Logistics cadres who are presently in service shall be considered for the grant of PCs. The right to be considered for the grant of PCs arises from the policy letter dated 25 February 1999 read with Regulation 203 of Chapter IX Part III of the 1963 Regulations. SSC women officers in the batch of cases before the High Court and the AFT who are presently in service shall be considered for the grant of PCs on the basis of the vacancy position on the date of judgments of the Delhi High Court and the AFT or as it presently stands whichever is higher vi) The period of service after which women SSC officers shall be entitled to submit applications for the grant of PCs shall be the same as their male counterparts vii) The applications of the serving officers for the grant of PCs shall be considered on the basis of the norms contained in Regulation 203 namely availability of vacancies in the stabilised cadre at the material time determination of suitability andrecommendation of the Chief of the Naval Staff. Their empanelment shall be based on inter se merit evaluated on the ACRs of the officers under consideration subject to the availability of vacancies viii) SSC officers who are found suitable for the grant of PC shall be entitled to all consequential benefits including arrears of pay promotions and retiral benefits as and when due ix) Women SSC officer of the ATC cadre in Annie Nagraja’s case are not entitled to consideration for the grant of PCs since neither men nor women SSC officers are considered for the grant of PCs and there is no direct induction of men officers to PCs. In exercise of the power conferred by Article 142 of the Constitution we W.P.(C) Nos.11230 11232 2020 direct that as a one time measure SSC officers in the ATC cadre in Annie Nagaraja’s case shall be entitled to pensionary benefits. SSC officers in the ATC cadre in Priya Khurana’s case being inducted in pursuance of advertisements pursuant to which they were inducted shall be considered for the grant of PCs in accordance with directionsandabove x) All SSC women officers who were denied consideration for the grant of PCs on the ground that they were inducted prior to the issuance of the letter dated 26 September 2008 and who are not presently in service shall be deemed as a one time measure to have completed substantive pensionable service. Their pensionary benefits shall be computed and released on this basis. No arrears of salary shall be payable for the period after release from service xi) As a one time measure all SSC women officers who were before the High Court and the AFT who are not granted PCs shall be deemed to have completed substantive qualifying service for the grant of pension and shall be entitled to all consequential benefits and xii) Respondents two to six in the Civil Appeals arising out of Special Leave Petition Nos 30791 96 of 2015 namely Commander R Prasanna Commander Puja Chhabra Commander Saroj Kumar Commander Sumita Balooni and Commander E Prasanna shall be entitled in addition to the grant of pensionary benefits as a one time measure to compensation quantified at Rs.25 lakhs It is the case of the Petitioners that direction nos.(iv) and viii) are applicable to the Petitioners herein. As per the Respondents pursuant to the above directions passed by the Supreme Court the W.P.(C) Nos.11230 11232 2020 Petitioners were shortlisted and the Selection Board was constituted for consideration of grant of Permanent Commission. The Selection Board after a detailed consideration of the matter decided to grant discharge to eight Officers including the three Petitioners herein. A notice of discharge was served upon the Petitioners on 18th December 2020 pursuant to which the Petitioners moved before the AFT and sought stay of the discharge order. In the said application the ld. AFT observed that the case of the Petitioners was that they were entitled to interim relief till the matter was pending in the Supreme Court. The question as to whether the judgment of the Supreme Court has been followed and what was the policy which was applied by the Respondents was left open. The ld. AFT was however of the view that in view of the directions of the Supreme Court having been carried out and a Selection Committee having taken a final decision in the matter the Petitioners are not entitled to any interim relief. 8. Mr. Jaideep Singh ld. counsel appearing for the Petitioners submits that since the Petitioners were protected by the interim order passed by the AFT on 21st December 2018 the discharge order would in effect be violative of the said interim order. Moreover it is the case of the Petitioners that consideration has not been given in accordance with the principles laid down by the Supreme Court. 9. Mr. Harish Vaidyanathan Shankar learned counsel appearing for the Respondents submits that the directions of the Supreme Court have been carried out in letter and in spirit. In any event the non filing of an application before the AFT could at best be a procedural irregularity on part of the Respondents. The Petitioners themselves having sought interim orders initially on the strength of the pendency of the matter before the W.P.(C) Nos.11230 11232 2020 Supreme Court now cannot resile from their own earlier position. Mr. Harish Vaidyanathan submits that due to the fact that the Petitioners participated in the selection process and the Selection Board considered the matter comprehensively and took a final decision accordingly the judgment of the Supreme Court in Lt. Cdr Annie Nagaraja & Ors. has clearly been 10. Heard ld. Counsels for the parties. After considering the record this Court is of the view that the ideal course of action for the Respondents during the operation of an interim order was to move before the AFT. However in the present writ petitions this Court is only concerned as to whether the Respondents have implemented the directions given by the Supreme Court. It is clear from a reading of the directions of the Supreme Court as also the decision taken by the Respondents on 18th December 2020 and the impugned order of the AFT that the case of the Petitioners for grant of Permanent Commission has been duly considered. 11. Under these circumstances no interference is called in the present petitions under Article 227 of the Constitution. The question as to whether the policy applied and whether the rejection of Permanent Commission to the Petitioners is valid or not would have to be decided on merits by the Tribunal either in the pending petitions or in any fresh challenge which may be mounted by the Petitioners. 12. Accordingly the writ petitions are dismissed. However considering the fact that the Petitioners have served for several years in the Navy and that they would be required to look for fresh accommodation as also on humanitarian grounds during a global pandemic they are permitted three months time to vacate their official accommodations. It is made clear that W.P.(C) Nos.11230 11232 2020 the Respondent authorities would cooperate with the Petitioners during this period for their smooth transition. 13. Finally it is submitted by Mr. Jaideep Singh ld. counsel that usually Short Service Commission officers are given eight to ten months release time in order to enable them to seek alternate employment. If that is the usual practice the Petitioners are permitted to make a representation to that effect to the Respondent authority which shall be considered in a compassionate manner considering the prevalent situation of a pandemic. The Petitioners are permitted to approach the Ld. AFT for any further directions in this regard. 14. Needless to add that the observations made in the present petitions would not affect the final determination by the ld. AFT. 15. The petitions and all pending applications are disposed of in the above DECEMBER 28 2020 pst Ak PRATHIBA M. SINGH VACATION JUDGE) SUBRAMONIUM PRASAD VACATION JUDGE) W.P.(C) Nos.11230 11232 2020

Bhikaji Narain and Ors. Vs. The State of Madhya Pradesh and Anr

Article 13(1) had the effect of nullifying or rendering the existing law which had become inconsistent with Article 19(1)(g) read with clause (6) as it then stood ineffectual, nugatory and devoid of any legal force or binding effect only with respect to the exercise of the fundamental right on and after the date of the commencement of the Constitution The petitioners work as stage carriage operators under permits granted. Originally permit granted under way for a period of not more than 5 years and not less than 3 years and a permit holder applying for renewal of the permit get preference over new applicants for permit over the same route and would ordinarily get such renewal.The amendments were introduced by the C.P. & Berar Motor Vehicles amendment Act, 1947 into the Motor Vehicles Act, 1939. In exercise of the powers conferred by new amendments a notification was issued on the 4th Feb, 1955. The result of these amendments was that power was given to the Government to (i) to fix fares or freights throughout the Province or for any area or for any route, (ii) to cancel any permit after the expiry of 3 months, (iii) to declare its intentions to engage in the business of road transport generally or in any area specified, (iv) to limit the period of the license to a period less than the minimum specified in the Act, (v) to direct the specified transport authority to grant a permit.Petition Nos. 189 to 193 of 1955 filed under Article 32 of the Indian Constitution challenging the Constitutional validity of the C.P. & Berar Motor Vehicles Amendment Act, 1947 (Act III of 1948) which amended the Motor Vehicles Act, 1939 (Central IV of 1939) which gave extensive powers  to the Provincial Government including power to create monopoly of the motor transport business in its favor to the exclusion of all motor transport operators..On the 18th of June 1951 Section 3(1) of the Motor Vehicles Act, 1939 was amended, a new sub clause was substituted which was expressly made retrospective. Clause 6 of the Article 19 of the Indian Constitution was also amended which empowers the government with some privileges.PROCEDURAL HISTORY:The petitioners contended that the law having become void for unconstitutionality under Article 19(1)(g) and 31(2) as was inconsistence with Art. 13(1) was dead and could not be revived by a subsequent amendment of the constitution, removing the constitutional objection. On the other hand, the contention of the respondents before the court were is that although the amending Act on the authority of the decision by the apex court in Shagir Ahmad v. The State of U.P. and ors. became on and from the 26th January 1950 void as against the citizens to the extent of its inconsistency with the provision of article 19(1)(g) but after the First Amendment Act, 1951 when Clause 6 of the Article was amended by the constitution the amending Act ceased to be inconsistence with the Fundamental rights guaranteed under Article 19(1)(g) read with the amended clause (6) of that article, as it now permits the creation of law of state monopoly of motor transport business.ISSUE BEFORE THE COURT:Whether the law inconsistent with Article 13(1) is dead? andWhether the same law can be revivified by any subsequent amendment in the Constitution?RATIO OF THE COURT:The Court finds that extensive powers were given to the government to carry out and implement the policy of nationalization of the road transport business adopted by the government. The amending Act (III of 1948) was, at the commencement of the Constitution, an existing law. The new provisions introduced by the Act authorized the government to exclude all private motors operators from the field of transport business. The Court said, Prima Facie it was an infraction of the provisions of the Article 19(1)(g) of the Constitution and would be void under article 13(1) unless this invasion could be justified under the Clause (6) of article 19 on the ground that it imposed reasonable restrictions on the exercise of the right under Article 19(1)(g) in the interests of the general public.The Court applied the ratio of the Keshavan Madhava Menon V. St. of Bombay where it was decided that the word “void” in Article 13 is no longer res integra. As per Article 13(1) cannot be said to have obliterated the entire inconsistence law, such law existed and continued to be in force after the commencement of the constitution with respect to the persons who were not citizens and could not claim the fundamental rightsThe court observed that on and after the commencement of the Constitution the existing law, as a result of its becoming inconsistent with the provisions of Article 19(1)(g) read with clause (6) as it then stood, could not be permitted to stand in the way of the exercise of that fundamental right. Article 13(1) by reason of its language cannot be read as having obliterated the entire operation of the inconsistent law or having wiped it out altogether from the statute book. Such law existed for all past transactions and for enforcement of rights and liabilities accrued before the date of the Constitution, as was held in Keshavan Madhava Menon’s case.The law continued in force, even after the commencement of the Constitution, with respect to persons who were not citizens and could not claim the fundamental right. In short, Article 13(1) had the effect of nullifying or rendering the existing law which had become inconsistent with Article 19(1)(g) read with clause (6) as it then stood ineffectual, nugatory and devoid of any legal force or binding effect only with respect to the exercise of the fundamental right on and after the date of the commencement of the Constitution. Therefore, between  26 January 1950 and the 18 June 1951 the impugned Act could not stand in the way as it was inconsistence with the Fundamental right but, the true position of the impugned Act became as it were eclipsed for the time being by the fundamental right, the effect of First Amendment Act 1951 removed the shadow to make the impugned Act free from all infirmity.The true effect of Article 13(1) is to declare an Act inconsistent in violation of any Fundamental right. It is overshadowed by the Fundamental right and remains dormant but it is not dead therefore with the Amendment in Clause 6 of Article 19 of the constitution the provisions of the impugned law were no longer inconsistent and the result is that the impugned Act is once again began to operate.DECISION HELD BY COURT:In this case the judgement was given by JUSTICE SUDHI RANJAN DAS that the court concludes that the law declaring the intention of the state to take over the bus routes to the exclusion of all other motor transport operators was perfectly constitutional.The court said that the contentions put by the respondents as to the first amendment act 1951 are well founded while the objections against them by the petitioners are untenable.The court dismissed the appeal and made no order as to costs.

BHIKAJI NARAIN DHAKRAS AND OTHERS Vs THE STATE OF MADHYA PRADESH AND ANOTHER DATE OF JUDGMENT DAS SUDHI RANJAN DAS SUDHI RANJAN BHAGWATI NATWARLAL H AIYYAR T.L. VENKATARAMA IMAM SYED JAFFER AIYAR N. CHANDRASEKHARA 1955 AIR 781 1955 SCR 589 Fundamental Rights Infrigement of Law void for inconsistency ’Void’ Meaning of Removal of inconsistency by amendment of the Constitution if revivifies the law Constitution of India as amended by the constitution Act 1951 and the Constitution31(2) C.P. & Berar Motor VehiclesAct 1947Act 1947 which amended the Motor Vehicles Act 1939 Central Act IV of 1939) and conferred extensive powers on the Provincial Government including the power to create a monopoly of the motor transport business in its favour to the exclusion of all motor transport operators. In exercise of the powers conferred by new s. 43(1)(iv) a notification was issued on the 4th of February 1955 declaring the intention of the Government to take up certain routes. The case of the petitioners was that the passing of the Constitution and the grant of fundamental rights rendered the Act void under Art. 13(1) being inconsistent with the provisions of Arts. 19(1)(g) and 31(2) and reliance was placed on the decision. of the Supreme Court in Shagir Ahmad v. The State of U.P. & others. On behalf of the respondents it was contended that although as a result of the said decision the impugned Act was rendered void the Constitution Act 1951 and the ConstitutionAct 1955 bad the effect of removing the inconsistency and the Amending Actbecame operative again. It was however contended on behalf of the petitioners that the impugned Act being void under Art. 13(1) was dead and could not be revivified by any subsequent amendment of the Constitution It must be re enacted Held that Shagir Ahmad’s case had no application and the contentions put forward by the respondents were well founded and must be accepted That it is well settled: that the word ’void’ In Art. 13 means void to the extent of the inconsistency with a fundamental right and the language of the article makes it clear that the entire operation of an inconsistent Act is not wiped out. It applies to past transactions and the rights and liabilities accruing therefrom and continues even after the commencement of the Constitution to apply to non Keshavan Madhava Menon v. The State of BombayS.C.R 288 relied on The true effect of Art. 13(1) is to render an Act inconsistent with a fundamental right inoperative to the extent of the’inconsistency. It is overshadowed by the fundamental right’ and remains dormant but is not dead With the amendment made in cl.of Art. 19 by the first Amendment Act the provisions of the impugned Act were no longer inconsistent therewith and the result was that the impugned Act began to operate once again from the date of such amendment with this difference that unlike amended clause of Art. 19 which was expressly made retrospective no rights and obligations could be founded on the provisions of the impugned Act from the date of the Commencement of the Constitution till the date of the amendment. The notification declaring the intention of the State to take over the bus routes to the exclusion of all other motor transport operators was therefore perfectly Shagir Ahmad v. The State of U.P. & Others 1 S.C.R. 707 and Behram Khurshed Pesikaka v. The State of Bombay 1 S.C.R. 613 distinguished and held American authorities held inapplicable Nor can the impugned Act on a parity of reasoning be held to infringe any longer the fundamental rights of the petitioners under Art. 31(2) in view of the amendment effectd there in by the Constituation for the petitioners in Petition No. 1855 Rameshwar Nath and Rajinder Narain for petitioners in Petition No. 1955 Sri Narain Andley and Rajinder Narain for petitioners in Petitions Nos. 191 to 1955 T. L. Shevde Advocate General of Madhya Pradeshfor respondents in all petitions 1955. September 29. The Judgment of the Court was DAs ACTG. C. J. This judgment will dispose of all the five petitions which have been heard together and which raise the same question as to the constitutional validity of the C.P. & Berar Motor Vehicles Amendment) Act 1947as amended by the C.P. & Berar Motor VehiclesAct.$ 1947A permit may be renewed on an application made and disposed of as if it were an application for Provided that other conditions being equal an application for renewal shall be given preference over new applications for permits It will be noticed that under the section as it originally stood the permit granted thereunder was for a period of not less than 3 years and not more than 5 years and a permit holder applying for renewal of the permit had other things being equal preference over new applicants for permit over the same route and would ordinarily get such renewal Very far reaching amendments were introduced by the C.P. Berar Motor. VehiclesAct 1947 into the Motor Vehicles Act 1939 in its application to Central Provinces and Berar. By section 3 of the amending Act itemof subsectionof section 43 of the Central Act was replaced by the following items " fix maximum minimum or specified fares or freights for stage carriages and public carriers to be applicable throughout the province or within any area or any route within the province or was added after subsection Notwithstanding anything contained in subsection the Provincial Government may order a Regional Transport Authority or the Provincial Transport Authority to limit the period for which any permit or class of permits is issued to any period less than the minimum specified in the Act Section 9 of the amending Act added after section 58 a new section reading as follows: "58 A. Notwithstanding. anything herein before contained the Provincial Government may by order direct any Regional Transport Authority or the Provincial Transport Authority to grant a stage carriage permit to the Provincial Government or any undertaking in which the Provincial Government is financially interested or a permit holder whose permit has been cancelled under section 43 or any local authority specified in the order The result of these amendments was that power was given to the Governmentto fix fares or freights throughout the Province or for any area or for any route to cancel any permit after the expiry of three months from the date of notification declaring its intention to do so and on payment of such compensation as might be provided by the Rules iii) to declare its intention to engage in the business of road transport generally or in any area specified in the notification to limit the period of the license to a period less than the minimum specified in the Act andto direct the specified Transport Authority to grant a permit inter alia to the Government or any undertaking in which Government was financially interested. It may be mentioned here that in the State of Madhya Pradesh there are two motor transport companies known as C. P. Transport Services Ltd. and Provincial Transport Co. Ltd. in which at the date of these writ petitions the State of Madhya Pradesh and the Union of India held about 85 per cent. of the share capital Indeed since the filing of these petitions the entire undertakings of these companies have been purchased by the State of Madhya Pradesh and the latter are now running the services. on some routes for which permits had been granted to them A cursory perusal of the new provisions introduced by the amending Act will show that very extensive powers were conferred on the Provincial Government and the latter were authorised in exercise of these powers not only to regulate or control the fares or freights but also to take up the entire motor transport business in the province and run it in competition with and even to the exclusion of all motor transport operators. It was in exercise of the powers under the newly added sub sectionof section 58 that the period of the permit was limited to four months at a time It was in exercise of powers conferred on it by the new section 43 (iv) that the Notification hereinafter mentioned declaring the intention of the Government to take up certain routes was issued. It is obvious that these extensive powers were given to the Provincial Government to carry out and implement the policy of nationalisation of the road transport business adopted by the Government. At the date of the passing of the amending Actthere was no such thing as fundamental rights of the citizens and it was well within the legislative competency of the Provincial Legislature to enact that law. It has been conceded that the amending Act was at the date of its passing a perfectly valid piece of legislation Then came our Constitution on the 26th January 1950. Part III of the Constitution is headed "Fundamental Rights" and consists of articles 12 to 35. By article 19(1) the Constitution guarantees to all citizens the right to freedom under seven heads. Although in article 19(1) all these rights are expressed in unqualified language none of them however is absolute for each of them is cut down or limited by whichever of the several clausesto of that article is applicable to the particular right. Thus the right to practise any profession or to carry on any occupation trade or business conferred by article 19(1)(g 595 controlled by clausewhich prior to its amendment to which reference will presently be made ran as follows: "(6) Nothing in sub clauseof the said clause shall affect the operation of any existing law in so far as it imposes or prevent the State from making any law imposing in the interests of the general public reasonable restrictions on the exercise of the right conferred by the said sub clause and in particular nothing in the said sub clause shall affect the operation of any existing law in so far as it prescribes or empowers any authority to prescribe or prevent the State from making any law prescribing or empowering any authority to prescribe the professional or technical qualifications necessary for practising any profession or carrying on any occupation trade or business The fundamental rights conferred by articles 14 to 35 are protected by the provisions of article 13 the relevant portions of which are as follows: "13. All laws in force in the territory of India immediately before the commencement of this "Constitution in so far as they are inconsistent with the provisions of this Part shall to the extent of such inconsistency be was at the commencement of the Constitution an existing law. The new provisions introduced by the Act authorised the Provincial Government to exclude all private motor transport operators from the field of transport business. Prima facie therefore it was an infraction of the provisions of article 19(g) of the Constitution and would be void under article 13(1) unless this invasion by the Provincial Legislature of the funda mental right could be justified under the provisions of clause of article 19 on the ground that it imposed reasonable restrictions on the exercise of the right under article 19(1)(g) in the interests of the general public. In Shagir Ahmad v. The State of U.P. & Others(1) it was held by this Court that if the word "restriction" was taken and read in the sense of limitation and not extinction then clearly the law there under review which like the amending Act now before us sanctioned the imposition of total prohibition on the right to carry on the business of a motor transport operator could not be justified under article 19(6). It was further held in that case that if the word "restriction" in clauseof article 19 of the Constitution as in other clauses of that article were to be taken in certain circumstances to include prohibition as well even then having regard to the nature of the trade which was perfectly innocuous and to the number of persons who depended upon business of this kind for their livelihood the impugned law could not be justifled as reasonable. In this view of the matter there is no escape from the conclusion that the amending Act in so far as it was inconsistent with article 19(g) read with clause 6) of that article became under article 13(1) void "to the extent of such inconsistency" and if there were nothing else in the case the matter would have been completely covered by the decision of this Court in that case On the 18th June 1951 however was passed the Constitution First Amendment) Act 1951. By section 3(1) of that Act for clause of article 19 a new sub clause was substituted which was expressly made retrospective. Clause 6) of article 19 was also amended. That clause so amended now reads as follows: 6) Nothing in sub clauseof the said clause shall affect the operation of any existing law in so far as it imposes or prevent the State from making any law imposing in the interests of the general public reasonable restrictions on the exercise of the right conferred by the said sub clause and in particular nothing in the said sub clause shall affect the operation of any existing law in so far as it relates to or prevent the State from making any law relating to 1) 1 S.C.R. 707 i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation trade or business or the carrying on by the State or by a corporation owned or controlled by the State of any trade business industry or service whether to the exclusion complete or partial of citizens or otherwise It will be noticed that clauseas amended was not made retrospective as the amended clausehad been made The contention of the respondents before us is that although the amending Act on the authority of our decision in Shagir Ahmad’s casebecame on and from the 26th January 1950 void as against the citizens to the extent of its inconsistency with the provisions of article 19(1)(g) nevertheless after the 18th June 1951 when clausewas amended by the ConstitutionAct 1951 the amending Act ceased to be inconsistent with the fundamental right guaranteed by article 19(1)read with the amended clause of that article because that clause as it now stands permits the creation by law of State monopoly in respect inter alia of motor transport business and it became operative again even as against the citizens. The petitioners on the other hand contend that the law having become void for unconstitutionality was dead and could not be vitalised by a subsequent amendment of the Constitution removing the constitutional objection unless it was re enacted and reference is made to Prof. Cooley’s work on Constitutional Limitations Vol. I p. 384 Note referred to in our judgment in Shagir Ahmad’s case and to similar other authorities. The question thus raised by the respondents however was not raised by the learned Advocate General in that case although the notification was published by the U. P. Government on the 25th March 1953 and the proposed scheme was published on the 7th April 1953 i.e. long after the ConstitutionAct 1951 had been passed. This question was not considered by this Court in Shagir Ahmad’s case for it was there conceded see p. 720 of the report) that the validity of the U. P Act which in this res pect was similar to the C. P.’& Berar Act now under consideration. was not to be decided by applying the provisions of the amendea clauseWe therefore conceive it to be open to us to go into the new question that has now been mooted before us and to consider what effect the amended clausehas on the impugned Act. This involves a question of construction of article 13 of the Constitution The meaning to be given to the word "void" in article 13 is no longer res integra for the matter stands concluded by the majority decision of this Court in Keshavan Madhava Menon v. The State of Bombay(1). We have to apply the ratio decidendi in that case to the facts of the present case The impugned Act was an existing law at the time when the Constitution came into force. That existing law imposed on the exercise of the right guaranteed to the citizens of India by article 19(g) restrictions which could not be justified as reasonable under clauseas it then stood and consequently under article 13that existing law became void "to the extent of such inconsistency". As explained in Keshavan Madhava Menon’s. casethe law became void not in toto or for all purposes or for all times or for all persons but only "to the extent of such inconsiatency" that is to say to the extent it became inconsistent with the provisions of Part III which conferred the fundamental rights on the citizens. It did not become void independently of the existence of the rights guaranteed by Part III. In other words on and after the commencement of the Constitution the existing law as a result of its becoming inconsistent with the provisions of article 19(1)(g) read with clauseas it then stood could not be permitted to stand in the. way of the exercise of that fundamental right. Article 13(1) by reason of its language cannot be read as having obliterated the entire operation of the inconsistent law or having wiped it out altogether from 1) 1 S.C.R. 613 2) S.C.R. 228 the statute book. Such law existed for all past tran sactions and for enforcement of rights and liabilities accrued before the date of the Constitution as was held in Keghavan Madhava Menon’s case. The law continued in force even after the commencement of the Constitution with respect to persons who were not citizens and could riot claim the fundamental right. In short article 13(1) had the effect of nullifying or rendering the existing law which had become inconsistent with article 19(1)read with clauseas it then stood ineffectual nugatory and devoid of any legal force or binding effect only with respect to the exercise of the fundamental right on and after the date of the commencement of the Constitution. Therefore between the 26th January 1950 and the 18th June 1951 the impugned Act could not stand in the way of the exercise of the fundamental right of a citizen under article 190(1) Act 1951 was to remove I the shadow and to make the impugned Act free from all blemish or infirmity. If that were not SO. then it is not intelligible what "existing law" could have been sought to be saved from the operation of article 19(1)(g) by the amended clause in so far as it sanctioned the creation of State monopoly for ex hypothesi all existing laws creating such monopoly had already become void at the date of the commencement of the Constitution in view of clauseas it then stood. The American authorities refer only. to post Constitution laws which were inconsit tent with the provisions of the Constitution. Such laws never came to life but were still born as it were The American authorities therefore cannot full apply to pre Constitution laws which were perfectly valid before the Constitution. But apart from this distinction between re Constitution and post Constitution laws on which however we need not rest on decision it must be held that these American authorities can have no application to our Constitution All laws existing or future which are inconsistent with the provision s of Part III of our Constitution are by the express provision of article 13 rendered void "to the extent of such inconsistency". Such ’laws were not dead for all purposes. They existed for the purposes of pre Constitution tights and liabilities and they remained operative even after the Constitution as against non citizens. It is only as against the citizens that they remained in a dormant or moribund condition. In our judgment after the amendment of clauseof article 19 on the 18th June 1951 the impugned Act ceased to be unconstitutional and became revivified and enforceable against citizens as well as against non citizens. It is true that as the amended clause was not made retrospective the impugned Act could have no operation as against citizens between the 26th January 1950 and the 18th June 1951 and no rights’ and obligations could be founded on the provisions of the impugned Act during the said period whereas the amended clauseby reason of its being expressly made retrospective had effect even during that period. But after the amendment of clausethe impugned Act immediately became fully operative even as against the citizens. The notification declaring the intention of the State to take over the bus routes to the exclusion of all other motor transport operators was published on the 4th February 1955 when it was perfectly constitutional for the State to do so. In our judgment the contentions put forward by the respondents as to the effect of the ConstitutionAct 1951 are well founded and the objections urged against them by the petitioners are untenable and must be negatived The petitioners then contend that assuming that one impugned Act cannot be questioned on the ground of infringement of their fundamental right under article 19(1)(g) read with clause of that article there has been another infraction of their fundamental right in that they have been deprived of their property’ namely the right to ply motor vehicle’ s for gain which is an interest in a commercial undertaking and therefore the impugned Act does Conflict with the provisions of article 31of the Constitution again they rely on our decision in Shagir Ahmad’s case Here too if there were nothing else in the case this contention may have been unanswerable. But unfortunately for the petitioners there is the Constitution Act 1955 which’ came into farce on the 27th April 1955 By section 2 of that Act article 31 of the Constitution was amended and for clauseof that article the following clauses were substituted: 2) No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for compensation for the property so acquired or requisitioned and either fixes the amount of the compensation or specifies the principles on which and the mariner in which the compensation is to be determined and given and no such law shall be called in question in any :court on the ground that the compensation provided by that law is not adequate 2 A) Where a law does not provide for the transfer of the ownership or right to possession of any property to the State or to a corporation owned or controlled by the State it shall not be deemed to provide for the compulsory acquisition or requisitioning of property notwithstanding that it deprives any person of his property Article 31 A of the Constitution was also amended. There can be no question that the amended provisions if they apply save the impugned law for it does not provide for the transfer of the ownership or right to possession of any property and cannot there fore be deemed to provide for the compulsory acquisition or requisitioning of any property. But the petitioners contend as they did with regard to the ConstitutionAct 1951 that these amendments which came into force on the 27th April 1955 are not retrospective and can have no application to the present case. It is quite true that the impugned AN became inconsistent with article 31 as soon as the Constitution came into force on the 26th January 1950 as held by this Court in Shagir Ahamad’s case and continued to be so inconsistent right up to the 27th April 1955 and therefore under article 13(1) became void "to the extent of such inconsistency Nevertheless that inconsistency was removed on and from the 27th April 1955 by the ConstitutionAct 1955. The present writ petitions were filed on the 27th May 1955 exactly a month after the Constitution Act. 1955 came into force and on a parity of reasoning here in before mentioned the petitioners cannot be permitted to challenge the constitutionality of the impugned Act on and from the 27th April 1955 and this objection also cannot prevail Learned counsel for the petitioners sought to raise the question as to the invalidity of the impugned Act even before the advent of the Constitution. Prior to the Constitution when there were no fundamental rights section 299 of the Government of India Act 1935 which corresponds to article 31 had been construed by the Federal Court in Rao Bahadur Kunwar Lal Singh v. The Central Provinces and Berar(1) and in other cases referred to in Rajah of Bobbili v. The State of Madras(2) and it was held by the Federal Court that the word "acquisition" occurring in section 299 had the limited meaning of actual transference of ownership and not the wide meaning of deprivation of any kind that has been given by this Court in Subodh Gopal Bose’s case(3) to that word acquisition appearing in article 31(2) in the light of the other provisions of the Constitution.’ It is therefore not clear at all that the impugned Act was in conflict With section 299 of the Government of India Act 1935. Besides this objection was not taken or even hinted at in the petitions and cannot be permitted to be raised at this stage The result therefore is that these petitions must be dismissed. In the circumstances of this case we make no order as to costs 1) [1952] 1 M.L.J 174 193 194 3) B.C.R. 587

The quality and worthiness of statement of prosecutrix should be tested during trial: High Court of Delhi

Where there appear to be material contradictions in the statement of prosecutrix under Section 161 Cr.P.C. and different versions of prosecutrix are forthcoming. Further, where there are other materials placed on record like MLC, call detail record and in the peculiar facts and circumstances of the present case, this Court is of the opinion that petitioner deserves bail, however, without commenting on the merits of the prosecution case. This was held in ARUN v.   THE STATE GNCT OF DELHI. [Bail Appln. 1528/2021] in the High Court of Delhi by a single bench consisting of JUSTICE SURESH KUMAR KAIT. Facts are that an FIR was registered against Petitioner by the prosecutrix and her mother, he was accused of committing offenses under Sections 370/376/342/366A/34 IPC and Section 6 of Prevention of Children from Sexual Offence Act, 2012. A bail application has been filed by the accused of the same. The counsel for the petitioner submitted that the petitioner has been falsely implicated in this case on a fabricated and concocted story, whereas the fact is that the petitioner and prosecutrix worked as safai karamchari in Noida and they were having a love affair and the prosecutrix wanted to marry petitioner. Further submitted that the call detail record filed along with petition justify the same. The learned Additional Public Prosecutor for State opposed the present petition and submitted that the statement of the prosecutrix was recorded wherein she stated that the petitioner had forcibly married her and thereafter, on that day made physical relations with her and thereafter, on four-five occasion. Further that the offense committed by the petitioner is heinous in nature and bail should thus be denied. The court made reference to the judgment of Apex court in Mahipal Vs. Rajesh Kumar, wherein it was observed that “It is a fundamental premise of open justice, to which our judicial system is committed, that factors which have weighed in the mind of the Judge in the rejection or the grant of bail are recorded in the order passed. Open justice is premised on the notion that justice should not only be done but should manifestly and undoubtedly be seen to be done. The duty of Judges to give reasoned decisions lies at the heart of this commitment. Questions of the grant of bail concern both liberty of individuals undergoing criminal prosecution as well as the interests of the criminal justice system in ensuring that those who commit crimes are not afforded the opportunity to obstruct justice. Judges are duty-bound to explain the basis on which they have arrived at a conclusion”. The court also made reference to the judgment of Apex court in Krishan Kumar Malik Vs. State of Haryana, wherein it was observed that “no doubt, it is true that to hold an accused guilty for commission of an offense of rape, the solitary evidence of prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality”.

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 21.05.2021 Pronounced on: 27.05.2021 BAIL APPLN. 1528 2021 ARUN Through: Mr. Amit Gupta Advocate .....Petitioner THE STATE GNCT OF DELHI .....Respondent Through: Mr. G.M Farooqui Additional Public Prosecutor for State & SI Khushbu with victim complainantHON BLE MR. JUSTICE SURESH KUMAR KAIT is accused of committing offences under Sections 370 376 342 366A 34 IPC and Section 6 of Prevention of Children from Sexual Offence Act 2012 in FIR No. 290 2012 registered at police station Kalyanpuri Delhi. He was arrested on 20.09.2020 in this FIR case. On 16.07.2020 a complaint was received at police station by ASI Virender Singh from mother of the victim that on 12.07.2020 her daughter had gone missing. Thereafter on 04.09.2020 the mother came to the police station with her daughter prosecutrix whose medical examination was Bail Appln. 1528 2021 conducted vide MLC No. 300 2020 on the same day. Thereafter on 04.09.2020 itself the prosecutrix was produced before the court of learned Metropolitan Magistrate where her statement under Section 164 Cr.P.C. was recorded. In her statement the prosecutrix stated that on 12.07.2020 she had gone to Jalebi Chowk Kalyanpuri to buy chowmin and was standing near the vegetable seller when Akash came and told her that his wife was calling her and so she went with him. He took her to a house in Sector 11 Noida where one Arun was living along with his father two married sisters and their husbands. She was confined to the said house by those persons and was made to do daily household chores like washing cleaning etc. and they all used to beat her. She further stated that Arun had committed rape upon her three four times and though she tried to escape but could not do so. The prosecutrix also stated that on 15.07.2020 Arun had forcibly married her in front of mandir in the house and made her wear mangalsutra and sindoor. She was forced to live like Arun’s wife in the said house but he used to tie her hands and legs and keep her locked in one room. The crux of the complaint came out to be that parents of prosecutrix lived in the neighbourhood of in laws of Akash who knew the prosecutrix Bail Appln. 1528 2021 and her family very well. Akash also knew brother in lawof Arun and he and Arun worked together for a few days in a call centre. The prosecutrix used to accompany and help her mother who worked as safai karamchari and on their way home both the accused used to keep an eye on prosecutrix. At the instance of prosecutrix accused Akash was arrested on 20.09.2020 from his house and petitioner accused Arun was also arrested on the same day near his house. After investigation charge sheet was filed on 21.11.2020 against accused Akash for the offences under Sections under Sections 342 366A 370 376 34 IPC and Section 6 of Prevention of Children from Sexual Offence Act 2012 against accused petitioner herein. Thereafter upon receipt of call detail record of mobile numbers used by the prosecutrix and Arun supplementary charge sheet has been filed however charge is yet to be framed. Learned counsel for petitioner submitted that petitioner has been falsely implicated in this case on a fabricated and concocted story whereas the fact is that petitioner and prosecutrix worked as safai karamchari in Noida and they were having a love affair and prosecutrix wanted to marry petitioner. Further submitted that on the day of alleged incident prosecutrix Bail Appln. 1528 2021 had herself come to the house of petitioner Arun with co accused Akash because her parents wanted to solemnize her marriage with a handicapped person for money and she requested petitioner to allow her to stay at his house. Next submitted that petitioner had initially refused her request but the prosecutrix threatened that if he does not allow her to stay at his house she would go somewhere and commit suicide and for this reason petitioner had permitted her to stay at his house. Learned counsel for petitioner further submitted that petitioner is living with his father and two married sisters and also that his house is located in a thickly populated area where daily vendors like sabzi wala safai wala etc. keep coming and if prosecutrix had ever been locked or deliberately bounded in the house she could have raised an alarm but she never did so and stayed in the said house out of her own willingness. Further submitted that the call detail record filed along with the supplementary charge sheet further makes it clear that the prosecutrix on many occasions talked with the petitioner and this shows that she was happily residing with him. Learned counsel also pointed out material contradictions in the statement of prosecutrix recorded under Section 161 Cr.P.C. with that recorded under Section 164 Cr.P.C. to submit that the Bail Appln. 1528 2021 contents of complaint statement of prosecutrix cannot be relied upon. Lastly submitted that petitioner has falsely been implicated at the instance of parents of prosecutrix and he is innocent and deserves to be released on bail. 10. On the other hand learned Additional Public Prosecutor for State opposed the present petition and submitted that on 10.09.2020 statement of prosecutrix was recorded wherein she stated that on 15.07.2020 petitioner had forcibly married her and thereafter on that day made physical relations with her and thereafter on four five occasions. As per school record the date of birth of prosecutrix is 28.06.2004 and she being minor provisions of Prevention of Children from Sexual Offence Act 2012 were also invoked against petitioner in this case. Further submitted that the offence committed by the petitioner is heinous in nature and does not call for any leniency to him and this petition deserves out right dismissal. 11. Learned counsel representing both the sides were heard at length and the material placed on record has been carefully gone through by this Court to find out whether petitioner who is accused of serious offence of abduction 12. The Hon’ble Supreme Court in Mahipal Vs. Rajesh Kumar 2 and rape deserves bail SCC 118 has held that: Bail Appln. 1528 2021 “12. The determination of whether a case is fit for the grant of bail involves the balancing of numerous factors among which the nature of the offence the severity of the punishment and a prima facie view of the involvement of the accused are important. No straitjacket formula exists for courts to assess an application for the grant or rejection of bail. At the stage of assessing whether a case is fit for the grant of bail the court is not required to enter into a detailed analysis of the evidence on record to establish beyond reasonable doubt the commission of the crime by the accused. That is a matter for trial. However the Court is required to examine whether there is a prima facie or reasonable ground to believe the accused had the offence and on a balance of considerations involved the continued custody of the accused subserves the purpose of the criminal justice system. .” 13. Further in Mahipal Vs. Rajesh Kumarheld as under: “25. Merely recording “having perused the record” and “on the facts and circumstances of the case” does not subserve the purpose of a reasoned judicial order. It is a fundamental premise of open justice to which our judicial system is committed that factors which have weighed in the mind of the Judge in the rejection or the grant of bail are recorded in the order passed. Open justice is premised on Bail Appln. 1528 2021 the notion that justice should not only be done but should manifestly and undoubtedly be seen to be done. The duty of Judges to give reasoned decisions lies at the heart of this commitment. Questions of the grant of bail concern both liberty of individuals undergoing criminal prosecution as well as the interests of the criminal justice system in ensuring that those who commit crimes are not afforded the opportunity to obstruct justice. Judges are duty bound to explain the basis on which they have arrived at a 14. Keeping in mind the pertinent observations of Hon’ble Supreme Court in Mahipal Vs. Rajesh Kumar this Court has gone through the impugned order copy of charge sheet supplementary charge sheet MLC and statements of prosecutrix recorded in this case. 15. Pertinently the prosecutrix was got medically examined on 04.09.2020 and in the MLC dated 04.09.2020 it stands noted that the prosecutrix had told the doctor that she was abducted by Sagar and also that she was found back on 02.09.2020 by the police. Since the prosecutrix agreed for both external and internal check up the doctor opined that “no external injury swelling bleeding bruises or abrasion and for internal no fresh injury old tear.” Thus the contents of MLC prima facie falsify the Bail Appln. 1528 2021 allegations of prosecutrix that she was ever beaten by the petitioner or his family members. In view of the prosecution story this Court also adduced the statements of prosecutrix recorded under Section 164 Cr.P.C. on 04.09.2020 and her first statement under Section 161 Cr.P.C. recorded on 10.09.2020. In in her statement under Section 164 Cr.P.C. she stated that she knew Akash with whom she had gone to the house of petitioner Arun. Similarly in her statement under Section 161 Cr.P.C. the prosecutrix stated that she knew Akash with whom on his bike she had gone to the house of Arun. 17. However on 21.10.2020 supplementary statement of prosecutrix under Section 161 Cr.P.C. was recorded wherein she stated that she had erroneously stated name of Sagar before the doctor who prepared the MLC and it was only Akash who had taken her to Arun’s house. She also stated that she does not know why the doctor has appended the date of 02.09.2020 on the MLC though she had come to Kalyanpuri on 04.09.2020 whereas infact the date recorded in the MLC is 04.09.2020 only. In another supplementary statement recorded on 17.11.2020 prosecutrix has stated that when Akash dropped her at the house of Arun none else was there in that house. His two sisters along with his brothers in Bail Appln. 1528 2021 lawlived in separate houses. She further stated that she had spoken to Arun on phone earlier but when Akash took her to his house that was the first time she met him आपको बताना चाहती04.09.2020 को बस म# बैठकर अपने ससुरके साथ िद+ी आ गयी थी”. In what circumstances the prosecutrix has addressed petitioner’s father as her sasurhas to be seen as prosecution has not been able to bring on record any video or photos of marriage of petitioner with the prosecutrix. Rather a few photographs have been placed on record by the petitioner to show that the prosecutrix lived willingly and happily with him Bail Appln. 1528 2021 at his house and a perusal thereof prima facie shows no sign of torture or remorse on the face of prosecutrix. Even the call detail record pertaining to the period 01.07.2020 till 13.07.2020 placed on record shows that the prosecutrix had spoken to Arun many times during this period and especially multiple times on the date of incident before she left home. 21. The issue whether the prosecutrix has deliberately broken her sim card so that she could not be traced or petitioner had broken her phone and sim card is a matter of trial. In what circumstances prosecutrix changed her statements and made improvements in her statements recorded on different dates is also to be tested during trial. However it is not disputed that at the time of alleged incident prosecutrix was minor but whether she was kidnapped or left her home of her own will to live with petitioner is also yet to be established. 22. The Hon’ble Supreme Court in Krishan Kumar Malik Vs. State of Haryana7 SCC 130 has held that no doubt it is true that to hold an accused guilty for commission of an offence of rape the solitary evidence of prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy unblemished and should be of sterling quality. In view of said proposition the quality and worthiness of statement of Bail Appln. 1528 2021 prosecutrix shall be tested during trial. 23. However in view of different versions of prosecutrix forthcoming and the other material placed on record like MLC call detail record and in the peculiar facts and circumstances of the present case this Court is of the opinion that petitioner deserves bail however without commenting on the merits of the prosecution case. 24. Accordingly the petitioner is directed to be released on bail forthwith upon his furnishing personal bond in the sum of Rs.10 000 with one surety in the like amount to the satisfaction of the Trial Court Duty Magistrate. It is made clear that the trial court shall not get influenced by any observation made by this Court while deciding the present petition. 26. The petitioner shall not directly or indirectly influence any prosecution witness and shall appear before the trial court as and when directed. 27. A copy of this order be transmitted to the Trial Court and Jail Superintendent concerned for information and compliance. MAY 27 2021 JUDGE Bail Appln. 1528 2021

A petitioner must adhere to the provisions contained in the Statute and must take the consequences on the failure to abide by the stipulation contained therein: Bombay High Court

A petitioner must adhere to the provisions contained in the Statute and take the consequences on the failure to abide by the stipulation contained therein, this has been observed in the recent matter of Fakira Devram Sansare v. The Collector & Ors. [Writ Petition No.14824 OF 2021], listed Bombay High Court, Bench at Aurangabad. The final proceedings of the case were taken place on February 2nd 2022, and the said proceedings were presided by a single judge bench of Justice SMT. Bharati Dangre. The petitioner contested the elections and came to be elected as a ‘Sarpanch’ of village panchayat from the seat reserved for scheduled category. The candidate, had submitted an affidavit before the Returning Officer while filing of his nomination form and had undertaken to produce the validity certificate within a period of one year from being declared elected, but he did not obtained the validity certificate.   Hence, he incurred a disqualification to continue as a Sarpanch and his election was be deemed to have been terminated retrospectively. While the case being heard, many landmark judgments of Shankar Raghunath Devre (Patil) v. State of Maharashtra & Ors. [2019 (3) SCC 220], Anant H. Ulahalkar & anr. v. Chief Election Commissioner & Ors. [2017 (1) B.C.R. 230] were quoted in order to put emphasize on the pertinent case. The court also places reliance on Jyoti Basu and other v. Debi Ghosal & Ors. [AIR 1982 SCC 983] where it was held that “Outside of Statute, there is no right to elect, no right to be elected and no right to dispute the election. Statutory creations they are, and therefore, subject to statutory limitation.” Court, after perusal of facts and evidences, held that “The petitioner, therefore, cannot travel beyond the Statute, which govern his election and on failure to produce validity certificate within period stipulated, he must face the consequences provided by the Statute.” In addition to the above, the court related the case with the principle and held that “In the light of the position of law which has been crystallized to the above effect, the petitioner who has contested the election for reserved seat and got himself declared, must adhere to the provisions contained in the Statute and must take the consequences on the failure to abide by the stipulation contained therein.” “The impugned order passed by the Collector, thereby terminating him from the post of Sarpanch of village panchayat Kanadgaon with retrospective effect, is just and proper and deserves to be upheld.” Judgment reviewed by Pranav Sharma

on 08 02 2022 on 09 02 14824.21wp SACHIN(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADWRIT PETITION NO.14824 OF 2021 Fakira S o Devram Sansare Age: 50 years Occu: Agril and Social worker R o. Kanadgaon Tq. Rahuri Dist. Ahmednagar ….PETITIONERVERSUS1. The Collector Ahmednagar Dist. Ahmednagar2.The Tahsildar Rahur Tq. Rahuri Dist. Ahmednagar3.Bhausaheb S o Baburao Chokhar Age: 40 years Occu: Nil R o. Village Kanadgaon Tq. Rahuri Dist. Ahmednagar ….RESPONDENTSMr S. R. Andhale Advocate for petitioner Mr A. S. Jagatkar A.G.P. for respondent Nos.1 & 2Mr T. J. Momin Advocate for respondent No.3 CORAM : SMT. BHARATI DANGRE J. DATE : 2nd February 2022JUDGMENT:1.The petitioner raise a challenge to his disqualification as aMember Sarpanch of village panchayat Kanadgaon Tq. Rahuri on 08 02 2022 on 09 02 14824.21wp SACHIN(2) Dist. Ahmednagar by invoking the provisions of Section 10(1 A)of the Maharashtra Village Panchayats Act 1959election he preferred an application to the District Caste ScrutinyCommittee Ahmednagar for being conferred with validitycertificate and pending the receipt of the said certificate hecontested the elections and was declared elected to fill up the postreserved for scheduled caste.5.Respondent No.3 preferred an application before theCollector Ahmednagar on 25 01 2021 inviting attention of theCollector to the fact that the petitioner who was elected as aSarpanch of village panchayat Kanadgaon to fill up the postreserved for scheduled candidate had submitted an affidavitbefore the Returning Officer while filing of his nomination formand had undertaken to produce the validity certificate within aperiod of one year from being declared elected but till date hehas not obtained the validity certificate and hence he has incurreda disqualification to continue as a Sarpanch and his election shallbe deemed to have been terminated retrospectively.6.Pertinent to note that on 15 11 2021 the Collector Ahmednagar issued a notice to the petitioner by inviting hisattention to Section 10 1A of the Maharashtra Village Panchayats on 08 02 2022 on 09 02 14824.21wp SACHIN(4) Act as amended by the Government Notification dated14 12 2018 which made it mandatory for a candidate electedupon the reserved post to produce the validity certificate within aperiod of one year from the date of he being declared as elected and on failure to produce the validity certificate his election shallbe deemed to have been terminated retrospectively and he shall bedisqualified for being a Member. By the aforesaid notice thepetitioner was specifically reminded that he was elected on thepost of Sarpanch reserved for scheduled category on 09 01 2020and therefore he should produce a proof of submitting his castecertificate for verification to the Caste Validity Committee on orbefore 26 11 2021. Failing to abide by the same he shall incur adisqualification.7.The petitioner responded to the said communication on25 011 2021 wherein he stated that he had forwarded his castecertificate for it’s verification to the Scrutiny Committee but hehas not yet obtained the said certificate and therefore he cannotproduce the same. He specifically pleaded that he is not at fault as he had forwarded his certificate for verification prior to his on 08 02 2022 on 09 02 14824.21wp SACHIN(5) election but the Committee has not yet issued him a validitycertificate. This delay was sought to be condoned and he soughtthe time to be extended to submit the validity certificate. Alongwith his application he also forwarded a letter addressed to theCommittee on 20 08 2020 by which he had forwarded somedocuments to the Committee which were found to be deficient indetermining his claim.8.The request made by the petitioner to extend the time forfiling the validity certificate was not attended to and hisgrievance is that the Collector Ahmednagar by his order dated02 12 2021 granted the application filed by respondent No.3 anddeclared the petitioner to be disqualified to hold the post ofSarpanch ad terminated his election to the post of Sarpanch withretrospective effect. In the impugned order the Collector recorded a finding tothe effect that the elected candidate i.e. the petitioner who waselected to the post of Sarpanch has failed to produce validitycertificate within a period of one year from the date of declarationof the result of the elections and the necessary consequences that on 08 02 2022 on 09 02 14824.21wp SACHIN(6) on failure to produce the validity certificate within a periodprescribed his election shall be deemed to have been terminatedretrospectively. It is this order which is the subject matter of thepresent writ petition.9.The learned Counsel Shri. Andhale appearing for thepetitioner would submit that on 15 12 2021 the District CasteCertificate Scrutiny Committee Ahmednagar has validated hiscaste certificate belonging to ‘Mahar’ caste and certified that hiscaste claim is found to be correct and his caste certificate dated02 02 2007 is validated with a declaration that the petitionerbelong to ‘Mahar’ a scheduled caste. Relying upon the said certificate the learned Counsel forthe petitioner would vehemently submit that the petitioner hadapplied for validating his caste certificate to the ScrutinyCommittee on 21 12 2019 i.e. much before of his declaration asSarpanch of the Grampanchayat but the Committee consumedtime in following the procedure before confirming him the statusof a scheduled caste and before his caste certificate is validated.The learned Counsel would submit that it is not his fault that the on 08 02 2022 on 09 02 14824.21wp SACHIN(7) Committee did not issue the validity certificate within a period ofone year but for that lapse he cannot be made to suffer.Ultimately according to the learned Counsel as on date there is adeclaration in his favour that he belong to scheduled caste and isentitled to hold the post of Sarpanch of village Kanadgaon. Theimpugned order according the the learned Counsel is clearlyprejudicial to the interest of the petitioner when obtaining thevalidity certificate was not within his control and the submissionis he has complied with the requisite by submitting an applicationin time and also curing the lacuna which is pointed by theCommittee by submitting additional documents but if theCommittee did not complete the procedure of verifying his castestatus within a period of one year he should not suffer theextreme consequence of being removed from the post ofSarpanch particularly when in the particular period the wholenation was grappling with the pandemic even the working of theScrutiny Committee was affected and he could not be issued thevalidity certificate within a period of one year. on 08 02 2022 on 09 02 14824.21wp SACHIN(8) The learned Counsel has placed reliance upon an orderpassed by the Hon’ble Apex Court in Suo motu Writ Petitionproceedings before the Scrutiny Committee which is also a quasijudicial authority. 10.The learned Counsel made every attempt to urge that sinceobtaining the validity certificate was interrupted by theextraordinary circumstances he should be benefited and it shallbe ensured that for no fault on his part the action of terminationfrom the post of Sarpanch be set aside. Per contra the learned Counsel for respondent No.3 and thelearned Asstt. Govt. Pleader would submit that the amendmentprescribed in Section 10 1A of the said Act is adhered to by theCollector in passing the impugned order and by relying upon theprovisions of Section 10 1A the submission of the respondents is that as a person who has applied to the Scrutiny Committee forverification of his caste certificate before the date of filing ofnomination paper but has not received the validity certificate onthe date of his nomination shall submit a true copy of theapplication preferred by him to the Scrutiny Committee forissuance of validity certificate or any proof of having made suchan application and he shall also submit an undertaking that within on 08 02 2022 on 09 02 14824.21wp SACHIN(10) a period of 12 months from the date on which he declared elected the validity certificate shall be issued by the Scrutiny Committee.It is submitted that by virtue of the proviso appended to the saidSection if a person fails to produce the validity certificate withinthe prescribed period from the date on which he is declaredelected his election shall be deemed to have been terminatedretrospectively and he shall be disqualified for being a Member. By relying upon the decision of the Full Bench of this Court in case of Anant H. Ulahalkar & anr. Vs. Chief ElectionCommissioner & others 2017B.C.R. 230 the learnedCounsel for the respondents submits that there is no discretion leftwith the authority to continue the petitioner as a Sarpanch sincethe proviso contemplated a deeming fiction where on failure toproduce the validity certificate within a period of 12 months fromthe date of his election he shall be deemed to have beenterminated retrospectively and disqualified as a Member. Thesaid Section being held to be mandatory it is argued that theelection of the petitioner is deemed to have been terminated w.e.f.10 01 2020 and no power is left with any authority to save this on 08 02 2022 on 09 02 14824.21wp SACHIN(11) deeming consequences as contemplated under the proviso. Thelearned Counsel therefore have prayed for dismissal of thepetition in the light of the imperative nature of the provision onfailure to produce the validity certificate within a period of 12months from the date of election. 11.The full Bench of the Bombay High Court in case of AnantH. Ulahalkarwhere three questions were referred to theFull Bench for reference answered the same in following words :“2.The genesis of this reference is the order dated 11August 2015 made in the present writ petition by theDivision BenchWhether the time limit prescribed underSection 9 A of he Maharashtra Municipal NagarPanchayats and Industrial Township Act 1965 forsubmission of caste validity certificate by electedCouncilor is mandatory in nature on 08 02 2022 on 09 02 14824.21wp SACHIN(12)Whether failure on the part of the personelected as a Councilor to produce the castevalidity certificate within prescribed period of sixmonths from the date of which he was declaredelected irrespective of facts and circumstancesand eventuality beyond the control of such personto produce the validity certificate wouldautomatically result in termination of his electionwith retrospective effect Whether the validation of caste claim of theelected Councilor by the Scrutiny Committeebeyond the prescribed period would automaticallyresult into termination of such Councilor withretrospective operation ”12.The Full Bench in the above case was considering Section9A of the Maharashtra Municipal Councils Nagar Panchayats andIndustrial Townships Act 1965 which is pari materia to Section10 1A of the Maharashtra Village Panchayats Act 1959. The FullBench after elaborate consideration held that the requirement ofsubmitting caste certificate within the period stipulated is amandatory requirement and in the relevant observations from theJudgment of the Full Bench need a reproduction : on 08 02 2022 on 09 02 14824.21wp SACHIN(13) “98. In the present case also the legislature inenacting Section 9 A has provided for a statutoryfiction which is evident from the use of expression "hiselection shall be deemed to have been terminatedretrospectively and he shall be disqualified being aCouncilor". The statutory fiction must be allowed tohave its full play. No other provision or reason hasbeen pointed out to take the view that consequencesprescribed under second proviso to Section 9 A are notautomatic or would require any further adjudicationonce it is established that the person elected has failedto produce the Validity Certificate within a stipulatedperiod of six months from the date of his election. 99.The validation of caste claim of the electedCouncillor by the Scrutiny Committee beyond theprescribed period would have no effect upon thestatutory consequences prescribed under the secondproviso to Section 9 A i.e. deemed retrospectivetermination of the election of such Councillor and hisdisqualification for being a Councillor. The subsequentvalidation or issue of the Validity Certificate willtherefore be irrelevant for the purpose of restoration ofthe Councillor s election but such validation willobviously entitle him to contest the election to be held on 08 02 2022 on 09 02 14824.21wp SACHIN(14) on account of termination of his election and theconsequent vacancy caused thereby.100. In the result we hold that the time limit of sixmonths prescribed in the two provisos to Section 9A ofthe said Act within which an elected person is requiredto produce the Validity Certificate from the ScrutinyCommittee is mandatory. Further in terms of second proviso to Section 9 Aif a person fails to produce Validity Certificate within aperiod of six months from the date on which he iselected his election shall be deemed to have beenterminated retrospectively and he shall be disqualifiedfor being a Councillor. Such retrospective termination of his election anddisqualification for being a Councillor would beautomatic and validation of his caste claim after thestipulated period would not result in restoration of hiselection. The questions raised stand answeredaccordingly.” 13.This judgment of the Full Bench of the Bombay High Court came up for consideration before the Hon’ble Apex Court in case on 08 02 2022 on 09 02 14824.21wp SACHIN(15) of Shankar Raghunath DevreVs. State of Maharashtra& others 2019SCC 220 and the Hon’ble Apex Court afternoticing the provision upheld the decision of the Full Bench ofthe Bombay High Court that the Statute engrafts mandatoryrequirement in law and the observations of the Hon’ble ApexCourt read as under :“7.A proviso to the aforesaid main provision of theStatute was brought in subsequently which permitted acandidate to file his her nomination even in absence ofvalidity certificate provided he she enclose with thenomination a true copy of the application filed byhim her before the Scrutiny Committee and anundertaking that he she shall submit within period of sixmonths from the date of his her election the validitycertificate issued by the Scrutiny Committee.8.There is Second proviso which contemplates thaton failure of the person(s) concerned to produce thevalidity certificate within time frame stipulated hiselection “shall be deemed to have been terminatedretrospectively and he shall be disqualified for being aCouncillor” on 08 02 2022 on 09 02 14824.21wp SACHIN(16) 9.We have read and considered the very elaboratereasoning adopted by the Full Bench of the High Courtin coming to its conclusion that the aforesaid provisionsof the Statute engrafts a mandatory requirement in law.The High Court in our considered view very rightlycame to the aforesaid conclusion along with furtherfinding that equities in individual case(s) would not be agood ground to hold the provision to be directory. Infact the High Court has supported it’s decision byweighty reasons to hold that reading the provisions tobe directory would virtually amount to rendering thesame to be negatory.”13.The position of law as regards the provision contained in aStatute providing for election to a reserved seat to submit castecertificate and validity certificate are found in the distinctStatutes which include Section 5B of the Mumbai MunicipalCorporation Act 1888 Section 9 A of the MaharashtraMunicipal Councils Nagar Panchayats and Industrial TownshipsAct 1965 and Section 10 1A of the Maharashtra VillagePanchayats Act 1959. on 08 02 2022 on 09 02 14824.21wp SACHIN(17) 14.In case of Kesharben Murji Patel VS. State of Maharashtraand othersand in case of Tulip BrianMiranda Vs. State of Maharashtra and othersNomadic Tribes OtherBackward Classes and Special Backward CategoryCaste Certificate Act 2000and particularly by referring to sub section(4) ofSection 10 a similar conclusion was arrived at. At this juncture it is appropriate to take note of sub sectionof Section 10 of theAct of 2000 which reads thus : on 08 02 2022 on 09 02 14824.21wp SACHIN(18) “(4)Notwithstanding anything contained in any lawfor the time being in force a person shall bedisqualified for being a member of any statutory body ifhe has contested the election for local authority co operative society or any statutory body on the seatreserved for any of Scheduled Castes Scheduled Tribes De notified TribesNomadic Tribes Other Backward Classes or Special Backward Categoryby procuring a false Caste Certificate as belonging tosuch Caste Tribe or Class on such false CasteCertificate being cancelled by the Scrutiny Committee and any benefits obtained by such person shall berecoverable as arrears of land revenue and the electionof such person shall be deemed to have been terminatedretrospectively.”15.Recording that in order to translate the provision containedin the Act of 2000 relevant provisions came to be introduced inthe local enactments by the State Legislature relating to MunicipalCouncils Nagar Panchayats and Industrial Townships Act 1965and Maharashtra Village Panchayats Act etc by referring to therequirement contained in Section 5B of the Mumbai MunicipalCorporation Act 1888 by relying upon the Full Bench decision in on 08 02 2022 on 09 02 14824.21wp SACHIN(19) case of Anant H. Ulahalkarit was held that from the dateof coming into effect of amendment Act and the substitutedproviso it is imperative for the candidate contesting election from27 09 2018 to submit an undertaking that he will produce validitycertificate within a period of 12 months and if he does notproduce the same he would be deemed to have disqualifiedretrospectively. It was held that the Legislature has not conveyedany relaxation in it’s intention for consequence to fall. Thefollowing observation is relevant :“24. A Full Bench of this Court has in great detail dealtwith the result why it is construed the stipulation of timelimit contained in the two provisos to Section 9A withinwhich the person elected is required to produce the validitycertificate from Scrutiny Committee to be mandatory.Failure to comply with the stipulation resultedconsequences. The consequences must fall “whatever maybe the reason for non production of the validity certificate.The State Legislature being conscious of the difficultiesbeing faced by the candidates has stepped in and save thedisqualification from the retrospective effect but from aparticular stipulated date and not from the time and furtherprovided for a window of 15 days from the date of coming on 08 02 2022 on 09 02 14824.21wp SACHIN(20) into effect of the Act namely period of 15 days to producethe validity certificate in order to save such candidate fromaxe of disqualification falling on him but for such adisqualification is incurred by deeming provision.” Thelegislature has not conveyed any relaxation in it’s intentionfor the consequence to hold in case of non production ofvalidity certificate within the period undertaken by thecandidate. We have therefore not inclined to accept thesubmission of the learned Senior Counsel and be say so inthe light of authoritative pronouncement of the Full Benchon the said point and since according to us the amendedlegislation do not change intention of the Statute to make itmandatory.”The aforesaid decision came to be upheld by the Hon’bleApex Court and has now become a settled position of law.16.In the light of the position of law which has beencrystallized to the above effect the petitioner who has contestedthe election for reserved seat and got himself declared mustadhere to the provisions contained in the Statute and must take theconsequences on the failure to abide by the stipulation containedtherein. on 08 02 2022 on 09 02 14824.21wp SACHIN(21) 17.In Jyoti Basu and other Vs. Debi Ghosal and others AIR1982 SCC 983 the Hon’ble Apex Court has held as under :“The right to elect fundamental though it is to democracyis anomalously enough neither a fundamental right nor aCommon Law Right. It is pure and simple a statutoryright. So is the right to be elected. Outside of Statute thereis no right to elect no right to be elected and no right todispute the election. Statutory creations they are andtherefore subject to statutory limitation.18.The petitioner therefore cannot travel beyond the Statute which govern his election and on failure to produce validitycertificate within period stipulated he must face the consequencesprovided by the Statute. The impugned order passed by theCollector thereby terminating him from the post of Sarpanch ofvillage panchayat Kanadgaon with retrospective effect is just andproper and deserves to be upheld. Resultantly the writ petition is dismissed. Rule isdischarged. (SMT. BHARATI DANGRE J.)sjk

This act of college amounts to playing fraud both upon the students as well as upon the University concerned: Allahabad High Court

The Colleges collect the fees from the students for the entire year including the examination fee which is to be deposited with the universities in due time by the colleges, but such is not done and the colleges instead deposit the said amount in their own account. This act amounts to playing fraud both upon the students as well as upon the University concerned. Such an observation was made by the Hon’ble Allahabad High Court before Hon’ble Justice Vivek Chaudhary in the matter of Ram Avatar Kalyani Devi Kanya Mahavidyalay Thru Manager &Ors vs State Of U.P. Thru Prin. Secy. Higher Education Lucknow & Ors. [MISC. SINGLE No. – 14258 of 2021] The fact of the matter was that the college collected the examination fees from the students but delayed its deposit with the university. As a result, the university imposed a fine of Rs. 500/- on every student.  The Hon’ble High court by an interim order a reduction of fine from Rs. 500/- to Rs. 250/-. The same was accepted by the university and deposited by the college concerned. Additionally, the  Hon’ble High court observed that “The colleges collect the fee from their students for the entire year, including the examination fee required to be deposited by them with the University. However, the examination fee is not deposited by them with the University in time. The amount is retained by the colleges in their bank accounts. This act amounts to playing fraud both upon the students as well as upon the University concerned. Such activity should be immediately stopped” Furthermore, the Hon’ble High Court stated that “ In absence of any specific provisions, the colleges transfer the said late fee upon the students, while there is no fault of the students. The Universities have not yet framed any specific provision providing that in such cases late fee and penalty would be imposed upon the colleges only, which they would be barred from recovering from their students.” Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur The fact of the matter was that the college collected the examination fees from the students but delayed its deposit with the university. As a result, the university imposed a fine of Rs. 500/- on every student.  The Hon’ble High court by an interim order a reduction of fine from Rs. 500/- to Rs. 250/-. The same was accepted by the university and deposited by the college concerned. Additionally, the  Hon’ble High court observed that “The colleges collect the fee from their students for the entire year, including the examination fee required to be deposited by them with the University. However, the examination fee is not deposited by them with the University in time. The amount is retained by the colleges in their bank accounts. This act amounts to playing fraud both upon the students as well as upon the University concerned. Such activity should be immediately stopped” Furthermore, the Hon’ble High Court stated that “ In absence of any specific provisions, the colleges transfer the said late fee upon the students, while there is no fault of the students. The Universities have not yet framed any specific provision providing that in such cases late fee and penalty would be imposed upon the colleges only, which they would be barred from recovering from their students.” Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur The Hon’ble High court by an interim order a reduction of fine from Rs. 500/- to Rs. 250/-. The same was accepted by the university and deposited by the college concerned. Additionally, the  Hon’ble High court observed that “The colleges collect the fee from their students for the entire year, including the examination fee required to be deposited by them with the University. However, the examination fee is not deposited by them with the University in time. The amount is retained by the colleges in their bank accounts. This act amounts to playing fraud both upon the students as well as upon the University concerned. Such activity should be immediately stopped” Furthermore, the Hon’ble High Court stated that “ In absence of any specific provisions, the colleges transfer the said late fee upon the students, while there is no fault of the students. The Universities have not yet framed any specific provision providing that in such cases late fee and penalty would be imposed upon the colleges only, which they would be barred from recovering from their students.” Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur Additionally, the  Hon’ble High court observed that “The colleges collect the fee from their students for the entire year, including the examination fee required to be deposited by them with the University. However, the examination fee is not deposited by them with the University in time. The amount is retained by the colleges in their bank accounts. This act amounts to playing fraud both upon the students as well as upon the University concerned. Such activity should be immediately stopped” Furthermore, the Hon’ble High Court stated that “ In absence of any specific provisions, the colleges transfer the said late fee upon the students, while there is no fault of the students. The Universities have not yet framed any specific provision providing that in such cases late fee and penalty would be imposed upon the colleges only, which they would be barred from recovering from their students.”

Court No. 8 Case : MISC. SINGLE No. 142521 Petitioner : Ram Avatar Kalyani Devi Kanya Mahavidyalay Thru Respondent : State Of U.P. Thru Prin.Secy.Higher Education Lucknow Counsel for Petitioner : Lalit Kishore Tiwari Himanshu Shukla Counsel for Respondent : C.S.C. Savitra Vardhan Singh Case : MISC. SINGLE No. 143821 Petitioner : C M Madhuri Singh Mahavidyalaya Thru Manager & Ors Respondent : State Of U.P. Thru Prin.Secy. Higher Education Lko. And Counsel for Petitioner : Abhishek Singh Counsel for Respondent : C.S.C. Anurag Kumar Singh Savitra Vardhan Case : MISC. SINGLE No. 144721 Petitioner : C M Shri Jagdev Singh Mahavidayalaya Thru. Manager & Respondent : State Of U.P. Thru. Prin. Secy. Higher Education Lko.& Counsel for Petitioner : Abhishek Singh Sameer Singh Counsel for Respondent : C.S.C. Savitra Vardhan Singh Hon ble Vivek Chaudhary J 1. Heard learned counsel for petitioner colleges learned Standing Counsel for the State and Sri Savitra Vardhan Singh learned counsel for respondent University. 2. Present writ petitions are filed by the petitioner colleges for quashing of the order dated 04.07.2021 whereby a penalty of Rs. 500 per student was imposed by the University upon the colleges for deposit of late fee as the examination fee was deposited by the colleges after the last date for deposit had expired. 3. This Court passed an interim order dated 12.07.2021 in Writ Petition No.14473 of 2021 requiring the colleges to deposit only Rs. 250 per student as late fee for allowing students to appear in the examination. The University has permitted all the students to appear in the examination Meanwhile the University has also recalled its earlier order dated 04.07.2021 and permitted all the colleges to deposit only Rs. 250 per students as late fee. Since the University itself has modified its earlier order dated 04.07.2021 which stands complied in petitioners case also therefore there is no requirement for passing of any further order with regard to late fees. The examination of students of the petitioner colleges which the University has already taken only result thereof is now required to be declared. The Court in the given circumstances the colleges have already complied and deposited the required late fee as per the amended order of the University direct the University to declare their result within ten days from today. 4. Before parting with the case the Court would like to point out the fraud being played by large number of colleges. The colleges collect fee from their students for the entire year including the examination fee required to be deposited by them with the University. However the examination fee is not deposited by them with the University in time. The amount is retained by the colleges in their bank accounts. This act amounts to playing fraud both upon the students as well as upon the University concerned. Such activity should be immediately stopped. The action in this regard ought to be taken by both the University as well as the State Government. It has come before this Court that Universities charge late fee from the erring colleges. In absence of any specific provisions the colleges transfer the said late fee upon the students while there is no fault of the students. The Universities have not yet framed any specific provision providing that in such cases late fee and penalty would be imposed upon the colleges only which they would be barred from recovering from their students. The Universities should specifically provide such a provision before opening of any academic session. Unless the Universities clarifies the same it is very difficult to stop this fraudulent practice adopted by the colleges. It is expected that the Universities as well as the State Government shall expeditiously look into the matter 5. Let a copy of this order be forwarded to the respondent no.1 Principal Secretary Department of Higher Education Government of U.P. Civil Secretariat Lucknow. Mr. Pankaj Khare learned Additional Chief Standing Counsel will take appropriate steps for the same 6. With the aforesaid present writ petition is disposed of. Order Date : 8.10.2021 Vivek Chaudhary J.)

In a rape case, the accused could be convicted on the sole testimony of the prosecutrix if it is capable of inspiring confidence in the mind of the court: Gauhati High Court

The accused might be convicted on the only record of the prosecution. If there is no medical proof or the entirety of the circumstances supporting the version given by the prosecutor and believes that the case established by the prosecutor does not act on the only evidence of the prosecutor. If the entire case is implausible and implausible, the courts shall take great care to accept the only evidence of the prosecutor. The judgment was passed by the High Court of Gauhati in the case of  Sri Rajib Bordoloi v. State of Assam & Anr. [Crl.A./450/2019] by Single Bench consisting of Hon’ble Justice Mir Alfaz Ali. The facts of the case are the appellant accompanied by three others came to the house of the victim and forcibly kidnapped the victim. The appellant and his companion ravished the victim repeatedly and they also assaulted the victim causing multiple injuries. Thereafter, they left the victim, where after she came home and the FIR was lodged by the father of the victim, on the basis of which, police registered a case under Section 366(A)/376(g)/325 IPC. Learned counsel for the appellant, submitted that the entire prosecution case was based on the solitary testimony of the victim, which was not at all reliable, in view of the material contradiction in her evidence as well as the other attending facts and circumstances. It was also submitted that the FIR was lodged after 7 days without any proper explanation. Further contention of the learned counsel was that the prosecution sought to suppress the real facts and lodged the FIR by making a concocted allegation and as such, the conviction and sentence of the appellant warrants interference. Learned counsel, on the other hand, submitted that the testimony of the victim cannot be disbelieved and the conviction can be based on the sole testimony of the victim in an offence of sexual assault.

Page No.# 1 9 HIGH COURT OF ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH) THE GAUHATI HIGH COURT Case No. : Crl.A. 450 2019 SRI RAJIB BORDOLOI S O LATE MAHENDRA BORDOLOI R O VILL. PURANI GUDAM KURUAJAN P.S. SAMAGURI DIST. NAGAON ASSAM PIN 782141. THE STATE OF ASSAM AND ANR REP. BY P.P. ASSAM. 2:JAFAT KAWA S O LATE MARKASH KAWA R O VILL. BORDOL P.O. AND P.S. SAMAGURI DIST. NAGAON PIN 782140 Advocate for the Petitione r MR. B C DAS Advocate for the Respondent : MR. B B GOGOI Addl. PP ASSAM HONOURABLE MR. JUSTICE MIR ALFAZ ALI JUDGMENT & ORDER Page No.# 2 9 This appeal is directed against the judgment and order dated 01.11.2019 passed by the learned Additional District & Sessions Judge FTC Nagaon in Sessions Case No. 129 2009. By the said judgment the accused appellant was convicted under Section 366 376 1) 323 IPC and sentenced to rigorous imprisonment for seven years and fine of Rs. 2 000 with default stipulation under Section 366 IPC rigorous imprisonment for 10 years and fine of Rs. 5 000 with default stipulation under Section 376IPC and rigorous imprisonment for 6 months under Section 323 IPC. As per the prosecution case on 23.10.2008 at about 10 PM at night the accused appellant accompanied by three others came to the house of the victim and forcibly kidnapped the victim who was aged about 17 years at the time of occurrence. The appellant and his companion ravished the victim repeatedly and they also assaulted the victim causing multiple injuries. Thereafter on 26.10.2008 at about 4 AM in the morning they have left the victim at Bharaguri where after she came home and the FIRwas lodged by the father of the victim on the basis of which police registered a case being Samaguri P.S. Case No. 191 2008 under Section 366(A) 376(g) 325 IPC. During investigation statement of the victim was recorded by Magistrate under Section 164 CrPC. She was also subjected to medical examination and on completion of investigation charge sheet was laid against the present appellant. In course of trial charges were framed against the accused appellant under Section 366 376 323 IPC to which he pleaded not guilty. Nine witnesses were examined by the prosecution to establish the charges and on appreciation of evidence learned Trial Court convicted the present appellant and awarded sentence as indicated above. Aggrieved by conviction and sentence the accused appellant has preferred the instant Learned counsel Mr. B.C. Das appearing for the appellant and learned Addl. P.P. Mr. B.B. Gogoi for the State were heard. Page No.# 3 9 Learned counsel for the appellant Mr. Das submitted that the entire prosecution case was based on the solitary testimony of the victim which was not at all reliable in view of the material contradiction in her evidence as well as the other attending facts and circumstances. It was also submitted by Mr. Das that the FIR was lodged after 7 days without any proper explanation. Further contention of the learned counsel was that the prosecution sought to suppress the real facts and lodged the FIR by making a concocted allegation and as such the conviction and sentence of the appellant warrants interference. Learned Addl. P.P. however submitted that the testimony of the victim cannot be disbelieved and the conviction can be based on the sole testimony of the victim in an offence of sexual assault. I have perused the evidence brought on record and considered the submissions made by the learned counsel. On assessment of the prosecution evidence it is found that the prosecution case is basically banking on the testimony of the prosecutrix as submitted by the learned counsel for the appellant inasmuch as the other witnesses who were examined did not have any personal knowledge and they were more or less reported and post occurrence The informant PW 2 is the father of the victim. He stated to have lodged the FIR on the basis of the narration of the occurrence by the victim. According to him the accused visited their house in the morning on the date of the occurrence and at night when all the members of the family were in sleep the victim was missing from the house. After three days she returned home with multiple injuries on her body and thereafter she was initially taken to Samaguri PHC for treatment wherefrom she was shifted to Nagaon Civil Hospital and on the next day the FIR was lodged. He also stated that the victim told him that four persons including the accused appellant committed rape on her. He also stated to have noticed fresh injuries with oozing of blood on the body of the victim. During cross examination it was elicited that he did not know how the victim was missing at night and on the next morning i.e. on 24.10.2008 they came to know that the victim was missing. He also stated that the doors were not broken rather it was open. It was also elicited in the cross examination that on 26.10.2008 the victim came on her own by walking and he met her on the road. Page No.# 4 9 The victim in her examination in chief deposed that on being asked by the accused to go with him in order to marriage she came out from the house and went with the accused in his motorcycle. She further stated that when she was going with the accused with a view to marry him the accused administered some intoxicated substance along with ‘pan’ and took her to a nearby jungle and ravished her there. She also stated that the accused assaulted her with a ‘kotary’on various parts of her body and receiving such assault she became senseless and was lying in the jungle for three days. She further stated that after three days when she regained her sense she came back home and narrated the story to her father. During cross examination she stated that at the time of the occurrence her age was 20 years and upon promise of the accused to marry her she went with him out of her own will without informing her parents. She also stated that she went with the accused alone in his motorcycle. She also stated that she became senseless when the accused inflicted cut injuries to her. It is also in her evidence that initially the accused committed rape on her and thereafter inflicted injuries. Again she stated that she was ravished by the accused appellant and three other persons and she became fainted because of repeated forceful sexual intercourse by the accused and his companion. It is also in her statement that when she came back home initially she did not state about the occurrence to the village people and only after coming from the hospital she narrated about the occurrence. PW 4 mother of the victim stated that she did not know the accused. According to her the accused came to their house at about 6 PM on the date of occurrence and they went to sleep at 10 PM. However on the next day morning they discovered that her daughter was missing. She also stated that when her husband was going to graze the cattle he noticed the victim coming towards home. According to her also the victim stated that the accused along with three others ravished her and attempted to kill her. PW 5 was declared hostile. However nothing material could be elicited during the cross examination of this witness which could be any help to the prosecution. PW 7 stated that he came to know about the occurrence later on. PW 6 was the doctor who examined the victim on 31.10.2008 and the found the following injuries. Page No.# 5 9 “Body injuries: granulation tissue. 1. Old lacerated wound in the scalp right parietal region 1”X1 4”cm unhealthy 2. Old lacerated wound in the back of neck left lateral aspect ½”X1 4” cm unhealthy granulation tissue. 3. Old lacerated wound in the post aspect of neck lawn part literally 1 3”X1 4” cm unhealthy granulation tissue. 4. Abrasion post aspect of both elbow joints. 5. Multiple abrasion in the back. 6. Lacerated wound upper lip unhealthy granulation tissue. Private parts: 1. Hymen is torn. 3. LMP 2. No redness tenderness found in introits. 4. No semen stain found in her private parts and under garments. Examination of breast: Milk could be squeezed at the breast. Examination of abdomen: Lower synoptic region with muscle grand. Radiological age: Vide X ray no. 11406+07+08 dated 31 10 08 as reported by radiologist her age is20 years or above. 1. Hymen is torn. No redness tenderness seen. 2. Milk could be squeezed at the breast. 3. 4. ….. 5. …” According to the doctor the age of the victim was 20 years or above at the relevant time and all the injuries were old but he could not say the actual age of the injuries. The doctor also stated referring to his opinion as regards presence of milk at her breast that the victim might have given birth to a child or there was forcible abortion inasmuch as according to the doctor the tear of hymen or pain of lower abdomen and presence of infection was suggestive of forceful abortion. It is also in the evidence of the doctor that she was for the first time treated by him and before him the victim was not treated by any doctor for the Page No.# 6 9 A dispassionate scrutiny of the oral ev idence adduced by the prosecution would show that the prosecution story as sought to be projected in the FIR as well as deposed by the victim were inconsistent and contradictory on material facts. Though initially it was stated that the accused and three others forcibly kidnapped the victim and subjected her to forcible sexual assault during evidence the victim stated that she had relationship with the accused and she went with the accused out of her own will with a view to marry him without informing her parents and the appellant alone committed rape on her and there after inflicted injuries with knife and consequently she became senseless and regained her sense after three days. Again she tried to say that she was ravished by all the four persons including the accused appellant repeatedly because of which she became senseless. Though it was stated in the FIR that four persons ravished her repeatedly after she was abducted and after three days she was left at Bharaguri during evidence she stated that she remained at the alleged place of occurrence for three days where she was ravished. From the medical evidence it appears that all the injuries sustained by the victim were more or less superficial or simple in nature which were old and already healed injuries when the victim was examined by the doctor. Evidently no injury was detected at her private part rather doctor opined that the victim conceived and there was symptom of delivery or forcible abortion. PW 2 stated that after three days the victim regained her sense and came back home whereas PW 4 stated that after three days when PW 2 went to graze the cattle he met the victim on the road coming towards home. PW 3 also stated that after three days she came home and she did not state that while she was coming home she met her father on road who was proceeded to graze the cattle. The evidence of the PW 1 that she remained senseless for three days and was lying in the jungle for such injuries does not appear to be worthy of inspiring confidence in v iew of the nature of injuries sustained by her. Though in one version the victim stated that she was repeatedly ravished by four persons including the accused appellant the medical evidence does not support such statement of the victim being subjected to forceful sexual assault by Page No.# 7 9 four persons repeatedly. Another important aspect revealed from the evidence of the doctor that most likely the victim was pregnant at the time of the occurrence or she might have given birth to a child or there was forceful abortion. All these attending facts and circumstances including the medical evidence and inconsistency in the evidence of the victim as well as other prosecution witnesses left a mark of reasonable doubt in the prosecution story as sought to be projected by the prosecution. It is also apparent from the medical evidence and testimony of the prosecution witnesses that there might be suppression of real genesis of the occurrence inasmuch as prosecution has departed from the initial narration of the story reflected in the FIR that the victim was forcibly kidnapped by four persons and subjected her to sexual assault. Though PW 4 stated that she did not know the accused appellant from the evidence of PW 4 PW 2 it is apparent that the accused appellant was known to them as he used to visit the house of the victim and even used to take meal. It is no doubt true that there is no bar in basing conviction on the sole testimony of the prosecutrix in a case of sexual assault prov ided the testimony of the victim is worthy of inspiring confidence in the mind of the court or the testimony of the victim must be free from any doubt or the witnesses must be of starling quality so as to inspire confidence of the court. In the instant case as indicated above apparently there are inherent inconsistencies in the story of the prosecution as revealed from the evidence of the victim. The medical evidence as indicated above also raises doubt about the veracity of the prosecution story as sought to be projected in the instant case. Therefore for the inconsistency and material contradiction in the prosecution story as deposed by the victim in view of the attending circumstances as indicated above it is difficult to say that the testimony of the victim is free from doubt and worthy of inspiring confidence of the court. The Apex Court in Sadashiv Ramrao Habde Vs. State of Maharastra & Anr. reported in10 SCC 92 observed as under: “9. It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix if it is capable of inspiring of confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen.” Page No.# 8 9 Apparently the FIR was lodged after a delay of 7 days. However learned trial court held that such delay of 7 days has been satisfactorily explained. True it is that delay in lodging FIR perse is not fatal. What is fatal is the delay without proper explanation. In the instant case the delay in lodging the FIR was sought to be explained in the FIR by stating that as the informant father was busy in treatment of the victim there was delay in lodging the FIR. Admittedly the victim came in the morning of 26.10.2008 and the FIR was lodged on 30.10.2008 and after lodging the FIR the victim was taken to doctor on 31.10.2008 for treatment. It is also in the evidence that before 31.10.2008 the victim was not treated or examined by any other doctor. Though the PW 2 sought to say that initially the victim was taken to Samaguri PHE there is no other material to support such version. What is therefore apparent is that even the victim came with the alleged injury on her body she was neither taken to doctor till 31.10.2008 nor the FIR was lodged till 30.10.2008. Therefore the explanation given in the FIR that the delay was caused because of the informant being busy with the treatment of the victim appears to be false inasmuch as the victim was taken for treatment only on 31.10.2008 after lodging the FIR. Though admittedly the victim was missing from the night of 23.10.2008 even a missing entry was not made which seems to be extremely unusual. Therefore the inordinate delay of 8 days in the above facts and circumstances without any proper explanation also cast a doubt on the veracity of the prosecution case. Thus unreliability of the testimony of the solitary witness being the prosecutrix the medical evidence which is apparently not supporting the prosecution coupled with the inordinate delay of 7 days in lodging the FIR raises serious doubt on the veracity of the prosecution case and as such the accused appellant atleast ought to have been given the benefit of doubt. In a serious offence like rape one cannot be convicted in a light manner unless prosecution succeeds in proving the case beyond reasonable doubt. In view of the above facts and circumstances this court is of the considered opinion Page No.# 9 9 that the prosecution evidence is inadequate to bring home the guilt of the accused appellant beyond reasonable doubt and as such the conviction and sentence of the accused appellant cannot be sustained. Accordingly the conviction and sentence of the accused appellant is set aside and the appeal is allowed. The accused appellant be released and set at liberty forthwith if not required in any other case. Send down the LCR. Comparing Assistant

Magistrate cannot be said to have taken cognizance of the offence for ordering investigation under Section 156(3) CRPC, or for issuing a search warrant for the purpose of the investigation: Jammu and Kashmir High Court

If there is bona fide dispute between two parties and both are asserting the possession but unless there is evidence to ascertain the fact as to whether the disputed portion is part of which, no process could be issued and taking of cognizance of the offences is without jurisdiction and abuse of the process of law. This was held in the judgment passed by a single judge bench comprising of HON’BLE MRS. JUSTICE SINDHU SHARMA in the matter of National Insurance Company Ltd V. Feroz-ud-Din & anr [IA No. 01/2018], dealt with an issue where the petitioner filed a petition seeking to quash order passed by the Judicial Magistrate 1st Class, Banihal whereby, he has directed issue of process against the accused under sections 447/379/506 RPC. The facts of the case in brief are these; both the parties are residents of Village Senigam Neel, Revenue Village Dhanmasta, Tehsil Pogal Paristan (Ukhral) District, Ramban, while the landed property of the petitioner is in Village Dhanmasta. The land of the respondent is in village Neel but land in Khasra No. 417 has been purchased by the respondent in village Bohardar. Petitioners are in possession of land measuring 14 kanals, 2 Marlas in Khasra situated at Village Dhanmasta. It is admitted fact that the land comprising of Khasra \ and land comprising of Khasra are contiguous and have common boundary. The respondent himself filed an application under section 156(3) Cr. P.C in the Court of learned Munsiff, Banihal alleging that, the petitioners have encroached upon the land comprising Khasra No. 417 and also took away ten bundles of grass. The report stated that the dispute between the parties cannot be resolved unless Patwari of Village Bohardar and Patwari of Village Dhanmasta visit the spot and demarcate the boundary of the two Khasra numbers by Nishandehi. The learned Magistrate took cognizance and issued process to all the accused. There is nothing on record to justify the police report for the issuance of process against the accused, as the report only says that the dispute between the parties is about the boundry of Khasra No. 4 991 and Khasra No. 417 and it can be settled only by demarcation of the boundaries. Whether the disputed portion is part of Khasra No. 991 or 417 can be determined only by Nishandehi and not otherwise. There is no evidence regarding the allegation of theft of ten bundles of grass or digging of the portion. After hearing both sides, the Hon’ble High Court of Jammu and Kashmir allowed the petition and held that the order impugned is illegal on the admitted facts of the case and the same is, accordingly, quashed. It also held that the order of Trial Court is, thus, abuse of process of Court as the disputes are purely of civil nature, which should be resolved only by the Revenue Officers after proper demarcation. Click here to view judgement Judgement reviewed by – Vaishnavi Raman

HIGH COURT OF JAMMU AND KASHMIR AT JAMMU CRMC No. 537 2018 IA No. 01 2018 Pronounced on: 12.06.2020 Ab. Gaffar Naik and others ….Petitioner(s) Through: Mr. R. K. S. Thakur Advocate Bashir Ahmed .…Respondent(s) Through: Mr. M. R. Daing Advocate CORAM: HON’BLE MRS. JUSTICE SINDHU SHARMA JUDGE Petitioners seek quashing of order dated 01.08.2018 passed by the Judicial Magistrate 1st ClassBanihal whereby he has directed issue of process against the accused under sections 447 379 506 RPC. The facts of the case in brief are these both the parties are residents of Village Senigam Neel Revenue Village Dhanmasta Tehsil Pogal ParistanDistrict Ramban while the landed property of the petitioner is in Village Dhanmasta. The land of the respondent is in village Neel but land in Khasra No. 417 has been purchased by the respondent in village Bohardar. Petitioners are in possession of land measuring 14 kanals 2 Marlas in Khasra No. 991 situated at Village Dhanmasta. It is admitted fact that the land comprising of Khasra No. 991 and land comprising of Khasra No. 417 are contiguous and have common boundary. The respondent himself filed an application under section 156(3) Cr. P.C on 18.08.2017 in the Court of learned Munsiff Banihal alleging that on 07.08.2017 the petitioners have 2 CRMC No. 537 2018 encroached upon the land comprising Khasra No. 417 and also took away ten bundles of grass. The learned Magistrate Banihal on 18.08.2017 forwarded the said application to Inchare Police Post Neel for proceeding under law and to submit a compliance report before 31.08.2017 and kept the complaint on board. The Incharge Police Post Neel submitted the report dated 27.08.2017 which is on the file. He has confirmed the allegations made by the complainant in the application but without recording any evidence according to him while Khasra No. 991 is in Tehsil Pogal Paristan and Khasra No. 417 is in Tehsil Banihal. In his report dated 27.08.2017 Incharge Police Post Neel says that the dispute between the parties cannot be resolved unless Patwari of Village Bohardar and Patwari of Village Dhanmasta visit the spot and demarcate the boundary of the two Khasra numbers by Nishandehi. There is another report of Incharge Police Post Neel dated 19.11.2017 in which it has been suggested that both the parties were asked to get copies of latha from the record room i.e Muhafiz Khana Jammu to facilitate the resolution of the dispute. There is another report of Incharge Police Post Neel dated 06.12.2017 on record and as per the report of Patwar Halqa Dhanmasta neither Aks Masavi nor field book of the villages is available as such it is not possible to demarcate Khasra No. 991 as the same is the case regarding Khasra No. 417. Minutes of the proceedings indicate that w.e.f 18.08.2017 the case was regularly being adjourned for more than twelve hearings without taking cognizance for ensuring the presence of the complainant and also calling for the police report. However on 01.08.2018 the learned 3 CRMC No. 537 2018 Magistrate issued process under sections 447 379 506 RPC and took cognizance of the offences. The question involved in this petition is what is the basis of taking cognizance and issue of process or taking cognizance. In report dated 27.08.2017 the Incharge Police Post Neel has reported the allegations made in the application filed by the complainant as correct as the accused have extracted some stones from the disputed area. According to him the accused are more dangerous persons who are ready to do or die. They always threatened the complainant but all this is without any evidence as he appears to have translated the application. The source of dispute is not based on any evidence recorded by him therefore the learned Magistrate did not take cognizance on 31.08.2017 and adjourned the application to 14.09.2017. On 14.10.2017 he sought fresh report from the police which was received on 20.11.2017 but according to learned Magistrate it was not complete. He asked Investigating Officer concerned to get a detailed report and as no report was received on 07.08.2017 or on 28.12.2017 when the Court directed the Incharge Police Post Neel to file reply by the next date and file was adjourned to 20.01.2017 when the report dated 19.11.2017 was produced but no action was taken on the complaint. It was on 16.05.2018 Incharge Police Post Neel was directed to appear in person and to explain filing of incomplete report after adjourning the case to 05.06.2018 and 12.07.2018 the Court took cognizance on 01.08.2018 and issued process without disclosing the evidence in support of the complaint. The learned Magistrate took cognizance and issued process to all the accused. There is nothing on record to justify the police report dated 19.11.2017 for the issuance of process against the accused as the report only says that the dispute between the parties is about the boundry of Khasra No. 4 CRMC No. 537 2018 991 and Khasra No. 417 and it can be settled only by demarcation of the boundaries. Whether the disputed portion is part of Khasra No. 991 or 417 can be determined only by Nishandehi and not otherwise. There is no evidence regarding the allegation of theft of ten bundles of grass or digging of the portion. There is thus a bona fide dispute between two parties and both are asserting the possession but unless there is evidence to ascertain the fact as to whether the disputed portion is part of which of two Khasra Nos. 991 and 417 no process could be issued and taking of cognizance of the offences is without jurisdiction and abuse of the process of law. The application of mind to the facts of the case is not for non taking cognizance as held by their lordship in case titled Gopal Das Sindhi and others V. State of Assam and another’’ reported in AIR 1961 SC 986 ‘held in AIR 1950 Calcutta 437 which reads as under: “The following observations of Mr. Justice Das Gupta in the case of Superintendent and Remembrancer of Legal Affairs West Bengal v. Abani Kumar Banerjee AIR 1950 Calcutta 437: “What is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire to attempt to define it. It seems to me clear however that before it can be said that any magistrate has taken cognizance of any offence under Section 190(1)(a) Criminal Procedure Code he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter proceeding under Section 200 and thereafter sending it for inquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter but for taking action of some other kind e.g. ordering investigation under Section 5 CRMC No. 537 2018 156(3) or issuing a search warrant for the purpose of the investigation he cannot be said to have taken cognizance of the The order of Trial Court is thus abuse of process of Court as the disputes are purely of civil nature which should be resolved only by the Revenue Officers after proper demarcation. In view of the aforesaid discussion the order impugned is illegal on the admitted facts of the case and the same is accordingly quashed. Disposed of. Let the original record of the court below be remitted back Judge Whether the order is speaking: Whether the order is reportable: Yes Yes 12.06.2020 SUNIL II

The High Court is entitled to quash the proceedings if it came to the conclusion that the ends of justice so required: Jharkhand High Court

The High Court has the authority to quash a proceeding if it determines that continuing the prosecution will be a violation of the court’s procedure or if the ends of justice demand that the proceeding be quashed. The preservation of the High Court’s inherent powers, both in civil and criminal cases, is intended to accomplish a beneficial public goal: a court case can not be used as a tool of harassment or persecution. The judgement was passed by the High Court of Jharkhand in the case of Rajnish Kumar & Ors. vs The State of Jharkhand & Anr. [Cr. M.P. No. 2623 of 2019] by Single Bench consisting of Hon’ble Justice Sanjay Kumar Dwivedi. The facts of the case are Company has appointed or selected Genesis Sale Corporation as a CNF Agent and, thereafter the Company was intending to get back its stock from the Genesis Sale Corporation, but the petitioners have refused to meet with the informant and did not return the stock. The allegation was that 390 Pumps amounting to Rs.10.48 Lakhs was with them. Subsequently, the said agreement was cancelled and the accused persons were asked to return the stock and, thereafter, F.I.R. has been lodged. Learned counsel for the petitioners submits that now they have entered into a compromise and based on the said compromise, this quashing petition has been filed. They further submit that they have settled the dispute which 3 Cr. Which arising out of the business rivalry and they are willing to maintain a good relation in the interest of the business. They also submit that F.I.R. has been lodged under Sections 420 and 406 I.P.C., which are compoundable under Section 320 of the Cr.P.C. with the permission of the Court before which any prosecution for such offence is pending and by the person who has been cheated. Learned counsel for the State also accepts that the law is well settled given the judgment relied on the learned counsel for the petitioners as well as learned counsel for the opposite party. While relying on the Hon’ble Supreme Court judgment Shiji v. Radhika, wherein it was held that that “the offences under Section 320 CrPC which are not compoundable with or without the permission of the court cannot be allowed to be compounded.” Further, it was noted that “to declare that such offences as are made compoundable under Section 320 can alone be compounded and none else.”

1 Cr. M.P. No. 26219 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. M.P. No. 26219 Rajnish Kumar aged about 38 years S o Shri Suresh Sharma Resident of House No.51 New AG Cooperative Colony PO Kadru PS Argora District Ranchi… Petitioners Versus The State of Jharkhand Sunil Manohar Wavikar S o Late Manohar Ramchandra Wavikar R o EPC Industries Ltd. Plot No.109 MIDC Ambad Nasik P.O. Ambad P.S … Opposite Parties Ambad District Nasik10 SCC 705 Paragraphs 7 10 18 and 19 of the said judgment are quoted herein “7. This Court has in several decisions declared that the offences under Section 320 CrPC which are not compoundable with or without the permission of the court cannot be allowed to be compounded. In Ram Lal v. State of J&K this Court referred to Section 320(9) CrPC to declare that such offences as are made compoundable under Section 320 can alone be compounded and none else. This Court declared two earlier decisions rendered in Y. Suresh Babu v. State of A.P. and Mahesh Chand v. State of Rajasthan to be per incuriam inasmuch as the same permitted composition of offences not otherwise compoundable under Section 320 CrPC 10. There is another line of decisions in which this Court has taken note of the compromise arrived at between the parties and quashed the prosecution in exercise of powers vested in the High Court under Section 482 CrPC. In State of Karnataka v. L. Muniswamy this Court held that the High Court was entitled to quash the proceedings if it came to the conclusion that the ends of justice so required. This Court observed:and 6 Cr. M.P. No. 26219 also in light of the fact that the petitioners and opposite party no.2 have entered into a compromise this Court comes to a conclusion that it is a fit case to exercise its jurisdiction under Section 482 Cr.P.C. Accordingly the F.I.R. being Argora P.S. Case No.342 2018 dated 30.10.2018 and entire criminal proceeding pursuant to that F.I.R. is hereby quashed Accordingly this criminal miscellaneous petition stands allowed and disposed of. Ajay (Sanjay Kumar Dwivedi J

The testimony of the victim recorded with the aid of her mother being an interested witness cannot be given any credence: Gauhati High Court

The argument credited to the victim was undoubtedly articulated by the mother based on the victim’s signs and gestures. However, the victim’s symptoms were not listed in the interview, and since she is a party of concern, her evidence is not credible. The judgment was passed by The High of Court Gauhati in the case Of Abdul Karim @ Gatu Vs the State of Assam And Anr. [Crl.A./5/2019] by Division Bench consisting of Hon’ble Shri Justice Suman Shyam & Justice Mir Alfaz Ali. The case as unfolded at the trial, may, briefly, stated as the victim in the instant case is a deaf and dumb girl of 22 years of age. the accused took the daughter of the informant to an isolated place on the backside of Moinamati building and committed rape on her. The incident was witnessed, the father of the victim lodged an FIR, on the basis of which, police registered the case under Section 376 IPC and upon completion of the investigation submitted a charge sheet against the appellant under Section 376 IPC. Learned Counsel for the appellant, contends that the prime witnesses of the prosecution contradicted on material facts and as such testimony of all these four witnesses was totally unreliable. Though they projected themselves to be eyewitnesses, in fact, none of them was an eye witness of the occurrence and as such, no reliance could have been placed on the testimony of these four witnesses, submits Mr Choudhury. He further submits that the evidence of the victim was also not reliable, inasmuch as, her statement was recorded with the aid of her mother, who was an interested witness. On the contrary Learned Counsel contends that in a case of sexual assault, the testimony of the victim is sufficient to record conviction without any corroboration, inasmuch as, the victim of the sexual offence cannot be disbelieved unless her testimony is found to have suffered from inherent improbabilities. The court relying on the Apex Court in the State of Rajasthan Vs. Darshan argues, “that the testimony of the victim in the instant case recorded with the aid of her mother being an interested witness cannot be given any credence.”

Page No.# 1 9 THE GAUHATI HIGH COURT HIGH COURT OF ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A. 5 2019 ABDUL KARIM @ GATU S O LATE SUMUDDIN SHEIKH VILL. ANANDA NAGAR P.O. AND P.S. BILASIPARA DIST. DHUBRI ASSAM PIN 783348 THE STATE OF ASSAM AND ANR REPRESENTED BY PP ASSAM S O LATE BAIDY NATH CHOUDHURY R O VILL. BILASIPARA WARD NO. 3 P.O. AND P.S. BILASIPARA DIST. DHUBRI ASSAM PIN 78334 Advocate for the Petitioner : MR H R A CHOUDHURY Advocate for the Respondent : PP ASSAM HONOURABLE MR. JUSTICE SUMAN SHYAM HONOURABLE MR. JUSTICE MIR ALFAZ ALI Date : 07 04 2021 M.A. Ali J. Heard Mr. H.R.A. Choudhury learned Sr. Counsel assisted by Mr. Azad Ahmed appearing for the appellant and the learned Additional P.P. Mr. M. Phukan for the respondent State Page No.# 2 9 2. This appeal is directed against the judgment and order dated 09.10.2018 rendered by the learned Additional Sessions Judge Bilasipara in Sessions Case No. 46 2016 whereby the appellant was convicted under Section 376IPC and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 25000 with default stipulation. 3. The prosecution case as unfolded at the trial may briefly be stated thus The victim in the instant case is a deaf and dumb girl of 22 years of age and she is the daughter of the informant. On 16.07.2013 at about 10.30 AM the accused took the daughter of the informant to an isolated place on the back side of Moinamati building and committed rape on her. The incident was witnessed by Hemen Singhaand Liton Dascame later and had taken the victim home. During cross Page No.# 3 9 examination it was elicited that the place of occurrence was about 200 cubit away from the house of the victim. He also stated that at the time of occurrence he was present in his house. He also stated in his cross examination that initially he went to the place of occurrence and his wifefollowed him. It was also elicited in his cross examination that there was a tea stall at a distance of about 10 20 cubits from the temple and the victim on the day of occurrence came to the said tea stall for taking tea. When she was coming back from the tea stall the occurrence took place. He however pleaded ignorance as to who had taken the victim to the place of occurrence from the tea stall. 7. The PW 3 mother of the victim stated that at the time of occurrence she was at her home and having heard hue and cry she rushed to the place of occurrence and had found the victim in naked condition. She also stated to have found the accused at the place of occurrence in naked position According to her as soon as she arrived the place of occurrence the accused put on his ‘gamocha’ and had fled the scene. She brought the victim home and police was informed. During cross examination she stated that she had received the information about the incidence after half an hour of the occurrence. She also stated that having arrived at the place of occurrence she had found many people assembled there. She also stated during cross examination that at the time of the occurrence her husband was at the market and he came home at about 11 AM. She also stated that her husband found the victim at home after she was brought back home by her. 8. The PW 4 Padum Singha deposed that when she was going to graze cattle in the field one cowboy by name Liton told her pointing to the incident that “see aunty what the old man is doing with the poor deaf and dumb girl”. She also stated that the accused committed rape on her. She further stated that having seen them the appellant had fled the scene. She also stated to have seen the victim in naked condition. During cross examination she stated that she had not seen the exact incident of rape but had seen the accused running away from the place of occurrence 9. Liton Das has been examined as PW 6. He deposed that when he was in his shop he had noticed the accused running away from the side of the Moinamati Sangha. He also stated to have seen the victim at the place i.e. Moinamati Sangha. This witness again stated that he heard that a lady had noticed the accused with the victim and thereafter the accused had left the place. During cross examination he stated that he did not go to the place of occurrence or inside the Moinamati Sangha and as such he did not see exactly what had happened. He also admitted that he did not go near the victim nor did he meet the parents of the victim. According to him the wife of one Krishna had seen the victim with the accused and he had only seen the accused from the back side when he was running Page No.# 4 9 away. Wife of Krishna has not been examined either by the police or by the court. 10. The PW 7 stated to have heard that some incident had taken place with the victim. This witness was however declared hostile by the prosecution. From the cross examination of this witness including the previous statement proved through the Investigating officer we find that this witness in fact was not an eye witness to the occurrence. The PW 8 pleaded ignorance about the incident. The PW 5 was one of the Investigating Officer through whom the accused proved certain previous statement of the witnesses. According to him the PW 3 did not state before him that she had found the victim in naked condition nor had she stated to have seen the accused running from the place of the occurrence. The PW 2 also did not state before police that hearing hue and cry he went to the place of occurrence and had seen the victim as well as the accused in naked condition. The PW 4 also did not state before him that she had seen the victim in naked condition. Rather she had stated before police that she tried to understand from the victim as to what had happened but she could not follow her. The PW 9 was also another Investigating Officer. The testimony of the PW 9 was more or less formal as he only narrated the various steps taken by him during investigation. 11. The PW 10 is Dr. Muskura Ahmed who examined the victim. The doctor in his evidence stated that during examination he did not find any sign of rape. According to the doctor no spermatozoa was detected in vaginal swab of the victim. PW 10 however deposed that hymen was found torn. 12. Appreciating the evidence adduced by the prosecution learned trial court convicted the appellant under Section 376(2)(1) IPC and awarded sentence as indicated above. 13. Assailing the impugned judgment learned counsel for the appellant Mr. Choudhury contends that the prime witnesses of the prosecution were the PW 1 PW 2 PW 4 & PW 6 and all of them stood contradicted on material facts and as such testimony of all these four witnesses was totally unreliable Though they projected themselves to be eye witnesses in fact none of them were eye witness of the occurrence and as such no reliance could have been placed on the testimony of these four witnesses submits Mr. Choudhury. Learned counsel for the appellant further submits that the evidence of the victim was also not reliable inasmuch as her statement was recorded with the aid of her mother who was an interested witness. Mr. Choudhury has placed reliance on a decision of the Apex Court in State of Rajasthan Vs. Darshan reported in 2012(4) Supreme 72 to argue that the testimony of the victim in the instant case recorded with the aid of her mother being an interested witness cannot be given any 14. Par contra learned Additional P.P. Mr. Phukan contends that in a case of sexual assault the testimony of the victim is sufficient to record conviction without any corroboration inasmuch as the victim of the sexual offence cannot be disbelieved unless her testimony is found to have suffered from Page No.# 5 9 15. We have considered the submission made by the learned counsels and also meticulously scrutinized the evidence and materials brought on record. 16. On our assessment of the evidence we find that the PW 2 & PW 3 who are parents of the victim stated in their testimony that they went to the place of occurrence having heard hue and cry and had seen the victim as well as the accused in naked condition. But none of them had stated in their previous statement recorded under Section 161 CrPC that they had seen the appellant and the victim in naked condition at the place of occurrence. According to PW 2 he was in his home at the time of the occurrence and having heard hue and cry he rushed to the place of occurrence and had found the victim and the accused in naked condition. He further stated that having seen him the accused put on his lungi and had fled the scene. He further stated that his wife came later following him whereas PW 3 the wife of PW 2 deposed that at the time of occurrence the PW 2 was not available in his home rather he was at the market. According to her having heard hue and cry she went to the place of occurrence first in point of time and had seen the victim and the accused both in naked condition. She further stated that having seen her the accused put on his ‘gamocha’ and had fled the scene. Again during cross examination she stated that she got the information about the occurrence after half an hour. Therefore if the evidence of PW 2 & PW 3 are read in juxta position it appears that the testimony of these two witnesses who projected themselves as eye witness to the occurrence stood contradicted against each other on material facts. Though both of them stated in court that upon arrival at the place of occurrence they have found the accused and the victim in naked condition in their previous statement none of them stated to have found the victim and accused in naked condition at the place of occurrence. Thus the PW 2 and PW 3 not only stood contradicted with their previous statement on material facts they also contradicted each other by making mutually destructive statement and thereby the PW 2 and PW 3 have belied each other’s claim of being a witness to the occurrence. In view of the above we are of the considered view that no credibility can be attached to the oral testimony of PW 2 and PW 3 Page No.# 6 9 17. In the FIR lodged by the PW 2 it was clearly mentioned that the occurrence was witnessed by PW 6 Liton Das and PW 8 Hemen Singha. However the PW 8 in his evidence stated that he did not know anything about the occurrence. The PW 4 Padum Singha stated in his evidence in chief that the occurrence was initially witnessed by PW 6 Liton Das who had told him pointing to the incidence that the appellant was doing some immoral act with the victim. She also stated to have seen the appellant committing rape on the victim. However during cross examination she stated that she did not see the occurrence of rape but she had only seen the accused running away from the place of occurrence. The PW 4 though stated in court that she had seen the victim and the accused in naked condition in her previous statement she did not state that she had seen the victim in naked condition rather her statement before police was to the effect that she tried to understand as to what has happened but could not know anything as the victim did not respond to her queries 18. The PW 6 Liton Das stated in his evidence in chief that he had seen the accused running away from the side of Moinamati Sangha. He also stated to have heard that one lady had noticed the victim with the accused who ran away from the place of occurrence. During cross examination this witness also stated that he did not see the exact incident nor did he go to the place of occurrence or inside the Moinamati Sangha. He also admitted that he did not go near to the victim nor did he meet the parents of the victim. According to PW 6 he only heard that one lady had seen the victim with the accused Thus the testimony of the PW 6 also appears to be hearsay. In view of the above facts and circumstances the oral testimony of PW 4 & PW 6 also does not inspire confidence. A dispassionate scrutiny of the oral testimony of the PW 2 PW 3 PW 4 and PW 6 shows that none of them witnessed the occurrence except having seen the accused running away by the PW 4 and PW 6. Once the oral testimonies of PW 2 PW 3 PW 4 & PW 6 are discarded the prosecution is left with only the testimony of the victim. 19. On careful scrutiny of the oral testimony of the victim we find that when at the first instance she was examined in chief with the aid of the independent interpreter she only stated by giving signs and gesture that the accused removed her clothes and touched her abdomen. However learned trial court could not record her statement completely as she was not responding to the interpreter. But when she was examined for the second time with the aid of her mothershe had stated that the accused Page No.# 7 9 committed rape on her and after committing rape he had run away. What we notice is that the victim could not communicate specifically the acts done by the appellant inasmuch as ‘rape’ is a legal or technical term which is defined in Section 375 IPC and the court has to decide whether particular sexual act or assault constitute rape or not. Evidently the victim is deaf and dumb and as such there is no difficulty in understanding that commission of rape as recorded by the learned trial court with the aid of the mother certainly did not fall from the mouth of the victim as she was not able to speak. The evidence was also not given in writing. Therefore the statement attributed to the victim was certainly articulated by the mother from the signs and gesture made by the victim. However the signs made by the victim were not mentioned in the deposition. Section 119 of the Evidence Act provides the procedure for recording evidence of a deaf and dumb witness. Section 119 of the Evidence Act reads as follows: “119. Dumb witnesses.—A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible as by writing or by signs but such writing must be written and the signs made in open Court Evidence so given shall be deemed to be oral evidence.” 20. Section 119 of the Evidence Act requires that when a witness is unable to speak or communicate verbally may give his her evidence in any other manner in which he she can make it intelligible such as in “writing” or by ‘sign’. The proviso further lays down that when a witness is unable to communicate verbally his her statement can be recorded with the assistance of the interpreter or a special educator and when the statement is recorded with the assistance of interpreter or special educator such recording of the statement shall be video graphed. The proviso to Section 119 of the Evidence Act was incorporated by criminal law Act 2013. In the instant case the evidence was recorded in the year 2017. Therefore the court was under obligation to video graph the recording of statement when the victim adduced evidence by signs and the court recorded the statement with the assistance of the interpreterwhether the hymen of the victim was torn or not. Though the doctor in his deposition stated that hymen was found torn we found that such statement was given by the doctor from his memory inasmuch as the medical report was silent in this regard. Therefore the testimony of the doctor that hymen was torn which was not even mention in the medical report also hardly carries any weight. Therefore in our considered view though in the second part of the evidence of the victim recorded by the learned trial court with the aid of the mother who tried to project that a rape was committed is not believable her evidence recorded at the first instance through the independent interpreter to the effect that the appellant removed her cloth and touched her abdomen cannot be doubted reason being that the trial court had also recorded the signs made by the victim from which it can be easily understood that the appellant by removing the upper garment touched the abdomen of the victim. Therefore we find no reason to disbelieve the testimony of the victim to the extent that the accused touched the abdomen of the victim by removing cloth in a public place which certainly amounted to outraging the modesty Thus having considered the evidence and materials in its entirety we are of the considered opinion that the prosecution evidence falls sort of proving the charge of rape under Section 376IPC However on the facts and circumstances more particularly the testimony of the victim clearly establishes a charge of outraging modesty punishable under Section 354 IPC beyond reasonable doubt Accordingly we set aside the conviction of the appellant under Section 376IPC instead we convict him under Section 354 IPC. Page No.# 9 9 22. Having regard to the fact that the victim a deaf and dumb girl was subjected to sexual assault by way of outraging her modesty by the accused taking advantage of her disability we are not inclined to show any leniency in awarding punishment to the accused. Accordingly we are of the considered opinion that the maximum punishment of imprisonment for 5 years would commensurate with the gravity of the offence in the present case. Accordingly we sentence the accused to undergo rigorous imprisonment for 5 years and to pay fine of Rs. 1000 in default to undergo further simple imprisonment for 15 days. The period undergone during investigation and trial shall stand set off 23. The appeal stands partly allowed to the extent indicated above 24. Send back the LCR. JUDGE JUDGE

Forcing DNA Test amounts to infringement of Right to Privacy and Personal Liberty: Supreme Court of India

In the kind of cases where the interest will have to be balanced and the test of eminent need is not satisfied for undergoing a DNA Test, the protection of the right to privacy of the Person should get precedence as upheld by the Hon’ble Supreme Court through the learned bench of Justice Hrishikesh Roy in the case of Ashok Kumar v. Raj Gupta and Others [CIVIL APPEAL NO. 6153 OF 2021] (Arising out of SLP(C) No.11663 of 2019). Brief facts of the case are that the appellant Ashok Kumar filed CS No. 53/2013 seeking declaration of ownership of property, left behind by late Trilok Chand Gupta and late Sona Devi. He arrayed the couple’s three daughters as defendants in the Suit and claimed himself to be the son of Trilok Chand Gupta and Sona Devi. In their written statement, the defendants denied that the plaintiff is the son of their parents (Trilok Chand Gupta and Sona Devi), and as such he is disentitled from any share in their parental property. In course of the proceedings before the learned Addl. Civil Judge (Sr. Division), Kalka, the defendants filed an application on 19.4.2017 seeking direction from the Court to conduct a Deoxyribonucleic Acid Test (for short “DNA test”) of the plaintiff and either of the defendants, to establish a biological link of the plaintiff to the defendants’ parents i.e., late Trilok Chand Gupta and Smt. Sona Devi. The defendants’ application for conducting the DNA test for the plaintiff was disposed of by the Court by referring to the fact that the CS No. 53/2013 is for declaration of ownership of property left behind by late Trilok Chand Gupta and late Sona Devi. The learned Judge noted that the evidence was already led by the plaintiff to prove his case and the application of the defendants was filed at that stage of the Suit when it was their turn to lay their evidence. Since the plaintiff had refused to give the DNA sample, the view taken was that the Court cannot force the plaintiff to provide DNA sample and accordingly the defendants’ application came to be dismissed by the order dated 28.11.2017 by the learned Trial Judge. The defendants moved the High Court by filing a Revision Petition against the order dated 28.11.2017. The parties were heard and the learned judge upon due consideration observed that a DNA test is a double -edged weapon and is a vital test to determine the relation of a party and the plaintiff who is claiming to be the son of late Trilok Chand Gupta and Sona Devi, should not shy away from the DNA test suggested by the defendants. Taking exception to the revisional order of the High Court, the aggrieved plaintiff is before the Hon’ble Supreme Court. The Hon’ble Court, after considering the cases of Banarsi Dass V. Teeku Dutta, Kamti Devi v. Poshi Ram and Bhabani Prasad Jena vs. Convenor Secretary, Orissa State Commission for Women &Anr., held that, “The appellant (plaintiff) as noted earlier, has brought on record the evidence in his support which in his assessment adequately establishes his case. His suit will succeed or fall with those evidence, subject of course to the evidence adduced by the other side. When the plaintiff is unwilling to subject himself to the DNA test, forcing him to undergo one would impinge on his personal liberty and his right to privacy. Seen from this perspective, the impugned judgment merits interference and is set aside. Inconsequence thereof, the order passed by the learned Trial Court on 28.11.2017 is restored. The suit is ordered to proceed accordingly.”   

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6153 OF 2021 Arising out of SLP(C) No.116619 …APPELLANT(S RAJ GUPTA & ORS …RESPONDENT(S JUDGMENT Hrishikesh Roy J Heard Ms. Sunieta Ojha the learned counsel for the appellantand as such he is disentitled from any share in their parental property. The defendants also set up an exclusive claim on the property based on the Will dated 16.4.1982executed by their late mother Sona Devi In course of the proceedings before the learned Addl Civil Judge Kalka on closure of the plaintiff’s evidence when the suit was slated for the other side’s evidence the defendants filed an application on 19.4.2017 seeking direction from the Court to conduct a Deoxyribonucleic Acid Test of the plaintiff and either of the defendants to establish a biological link of the plaintiff to the defendants parents i.e. late Trilok Chand Gupta and Smt. Sona Devi.This application was opposed by the plaintiff with the projection that the defendants’ application is an abuse of the process of law and that there are adequate evidences placed before the Court by the plaintiff to show that he is the son of Trilok Chand Gupta and Sona Devi. The plaintiff in his opposition had specifically pleaded that the mother of the plaintiff and the defendants had submitted sworn affidavit before the Municipal Committee Kalka to transfer the Property No. 496 Pahari Bazar Kalka in her name mentioning the name of the plaintiff as her son. The copy of the concerned affidavit was duly placed on record in the suit proceedings. Similarly sworn affidavits of the three defendants regarding transfer of the property No. 496 Pahari Bazar Kalka where again the plaintiff was admitted to be the son of late Trilok Chand Gupta and late Smt. Sona Devi were also brought on record in the suit. With such projection of admission on his linkage to the defendants’ parents the plaintiff opposed the DNA test suggested in the defendants’ application and offered to rely on the already adduced evidence to prove his case The defendants’ application for conducting the DNA test for the plaintiff was disposed of by the Court by referring to the fact that the CS No. 53 2013 is for declaration of ownership of property left behind by late Trilok Chand Gupta and late Sona Devi where the defendants have denied that the plaintiff is their brother or the son of their parents. The learned Judge noted that the evidence was already led by the plaintiff to prove his case and the application of the defendants was filed at that stage of the Suit when it was their turn to lay their evidence. Taking these aspects into account the Court opined that onus is on the plaintiff to prove that he is a coparcener amongst the defendants by way of his birth in their family and such burden does not shift to the defendants. Since the plaintiff had refused to give the DNA sample the view taken was that the Court cannot force the plaintiff to provide DNA sample and accordingly the defendants’ application came to be dismissed by the order dated 28.11.2017 by the learned Trial Judge Thus aggrieved the defendants moved the High Court by filing a Revision Petition against the order dated 28.11.2017. The parties were heard and the learned judge upon due consideration observed that a DNA test is a double edged weapon and is a vital test to determine the relation of a party and the plaintiff who is claiming to be the son of late Trilok Chand Gupta and Sona Devi should not shy away from the DNA test suggested by the defendants. The plea for conducting the DNA test on the plaintiff was accordingly allowed by interfering with the contrary view taken by the trial Court. Taking exception to the revisional order of the High Court the aggrieved plaintiff is before this Court The pleadings were exchanged quite early in the Civil Suit No. 53 2013 but only after closure of the plaintiff’s evidence the defendants filed application on 19.4.2017 for subjecting the plaintiff to a DNA test. The question therefore is whether in a declaratory suit where ownership over coparcenary property is claimed the plaintiff against his wishes can be subjected to the DNA test. The related question is whether the plaintiff without subjecting himself to a DNA test is entitled to establish his right over the property in question through other material evidence. The timing of the application is equally relevant. The plaintiff has already led evidence from his side to prove relationship between the parties and at this stage whether the High Court should have directed the plaintiff to undergo the DNA test Another issue of concern is whether in the absence of consent a party can be forced to provide sample for a DNA 8. This court in Banarsi Dass V. Teeku Dutta1 had declared that DNA test is not to be directed as a matter of routine but only in deserving cases. A petition was filed in that case for grant of succession certificate in respect of properties of the deceased. The Plaintiff claimed to be the deceased’s daughter and the only Class 1 legal heir under the Hindu Succession Act 1956. The deceased had died intestate leaving behind 5 brothers. The Delhi High Court denied one of the brother’s applications for conducting the DNA test of the daughter to establish her paternity. Justice Arijit Pasayat upheld the decision of the High Court in the following passage of the judgment: “10. In matters of this kind the court must have regard to Section 112 of the Evidence Act. This section is based on the well known maxim pater is est quem nuptiae demonstrantmay be presumed the law in general presuming against vice and In Bhabani Prasad Jena vs. Convenor Secretary Orissa State Commission for Women &Anr.2 Justice R.M. Lodha while reconciling two earlier decisions of this Court on the point had rightfully prescribed that “23. There is no conflict in the two decisions of this Court namely Goutam Kundu3 SCC 418 : 1993 SCC928 and Sharda4 SCC 493] . In Goutam Kundu3 SCC 418 : 1993 SCC928 it has been laid down that courts in India cannot order blood test as a matter of course and such prayers cannot be granted to have roving inquiry there must be strong prima facie case and the court must carefully examine as to what would be the consequence of ordering the blood test. In Shardawhile concluding that a matrimonial court has power to order a person to undergo a medical test it was reiterated that the court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the court. Obviously therefore any order for DNA test can be given by the court only if a strong prima facie case is made out for such a course.” The learned Judge while noting the sensitivities involved with the issue of ordering a DNA test opined that the discretion of the court must be exercised after balancing the interests of the parties and whether a DNA 2(2010) 8 SCC 633 Test is needed for a just decision in the matter and such a direction satisfies the test of “eminent need”. 10. The above decision in Bhabani Prasad Jena was considered and approved in Dipanwita Roy vs. Ronobroto Roy3 where the Court noticed from the facts that the husband alleged infidelity against his wife and questioned the fatherhood of the child born to his wife. In those circumstances when the wife had denied the charge of infidelity the Court opined that but for the DNA test it would be impossible for the husband to establish the assertion made in the pleadings. In these facts the decision of the High Court to order for DNA testing was approved by the Supreme Court Even then Justice J.S Khehar writing for the Division Bench considered it appropriate to record a caveat to the effect that the wife may refuse to comply with the High Court direction for the DNA test but in that case presumption may be drawn against 11.1 In circumstances where other evidence is available to prove or dispute the relationship the court should ordinarily refrain from ordering blood tests. This is 3(2015) 1 SCC 365 because such tests impinge upon the right of privacy of an individual and could also have major societal repercussions Indian law leans towards legitimacy and frowns upon bastardy. The presumption in law of legitimacy of a child cannot be lightly repelled. This Court in Kamti Devi v Poshi Ram4 while determining the question of standard of proof required to displace the presumption in favor of paternity of child born during subsistence of valid marriage “10. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with deoxyribonucleic acid as well as ribonucleic acidtests were not even in contemplation of the legislature. The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of Section 112 of the Act e.g. if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband the conclusiveness in law would remain irrebuttable. This may look hard from the point of view of the husband who would be compelled to bear the fatherhood of a child of which he may be innocent. But even in such a case the law leans in favor of the innocent child from being bastardised if his mother and her spouse were living together during the time of conception. Hence the question regarding the degree of proof of non access for rebutting the conclusiveness must be answered in the light of what is meant by access or non access as delineated above.” 11.2. The presumption of legitimacy of a child can only be displaced by strong preponderance of evidence and not merely by balance of probabilities. The material portion of the Court’s opinion is produced herein below “11 …..But at the same time the test of preponderance of probability is too light as that might expose many children to the peril of being illegitimatized. If a court declares that the husband is not the father of his wife s child without tracing out its real father the fallout on the child is ruinous apart from all the ignominy visiting his mother. The bastardised child when grows up would be socially ostracised and can easily fall into wayward life. Hence by way of abundant caution and as a matter of public policy law cannot afford to allow such consequence befalling an innocent child on the strength of a mere tilting of probability. Its corollary is that the burden of the plaintiff husband should be higher than the standard of preponderance of probabilities. The standard of proof in such cases must at least be of a degree in between the two as to ensure that there was no possibility of the child being conceived through the plaintiff husband.” 12. It was also the view of the Court that normal rule of evidence is that the burden is on the party that asserts the positive. But in instances where that is challenged the burden is shifted to the party that pleads the negative Keeping in mind the issue of burden of proof it would be safe to conclude that in a case like the present the Court’s decision should be rendered only after balancing the interests of the parties i.e the quest for truth and the social and cultural implications involved therein. The possibility of stigmatizing a person as a bastard the ignominy that attaches to an adult who in the mature years of his life is shown to be not the biological son of his parents may not only be a heavy cross to bear but would also intrude upon his right of privacy. 13. DNA is unique to an individualand can be used to identify a person’s identity trace familial linkages or even reveal sensitive health information Whether a person can be compelled to provide a sample for DNA in such matters can also be answered considering the test of proportionality laid down in the unanimous decision of this Court in K.S Puttaswamy v. Union of India5 wherein the right to privacy has been declared a constitutionally protected right in India. The Court should therefore examine the proportionality of the legitimate aims being pursued i.e whether the same are not arbitrary or discriminatory whether they may have an adverse impact on the person and that they justify the encroachment upon the privacy and personal autonomy of the person being subjected to the DNA Test. It cannot be overlooked that in the present case the application to subject the Plaintiff to a DNA Test is in a declaratory suit and the plaintiff has already adduced evidence and is not interested to produce additional evidenceto prove his case. It is now the turn of the defendants to adduce their evidence. At this stage they are asking for subjecting the plaintiff to a DNA test Questioning the timing of the application the trial Court dismissed the defendants application and we feel that it was the correct order. 14. In the yet to be decided suit the plaintiff has led evidence through sworn affidavits of the Respondents his School Leaving Certificates and his Domicile Certificate Significantly the respondent No.1 who is one of the 3 siblingshad declared in her affidavit that the Plaintiff was raised as a son by her parents. Therefore the nature of further evidence to be adduced by the plaintiffneed not be ordered by the Court at the instance of the other side. In such kind of litigation where the interest will have to be balanced and the test of eminent need is not satisfied our considered opinion is that the protection of the right to privacy of the Plaintiff should get precedence. 15. Having answered these questions additional issue to be resolved is whether refusal to undergo DNA Testing amounts to ‘other evidence’ or in other words can an adverse inference be drawn in such situation. In Sharda vs Dharmpal6 a three judges bench in the opinion written by Justice S.B. Sinha rightly observed in paragraph 79 that ”if despite an order passed by the court a person refuses to submit himself to such medical examination a strong case for drawing an adverse inference” can be made out against the person within the ambit of Section 114 of the Evidence Act. The plaintiff here has adduced his documentary evidence and is disinclined to produce further evidence. He is conscious of the adverse consequences of his refusal but is standing firm in refusing to undergo the DNA Test. His suit eventually will be decided on the nature and quality of 6 2003(4) SCC 493 the evidence adduced. The issue of drawing adverse inference may also arise based on the refusal. The Court is to weigh both side’s evidence with all attendant circumstances and then reach a verdict in the Suit and this is not the kind of case where a DNA test of the plaintiff is without exception 16. The respondent cannot compel the plaintiff to adduce further evidence in support of the defendants’ case. In any case it is the burden on a litigating party to prove his case adducing evidence in support of his plea and the court should not compel the party to prove his case in the manner suggested by the contesting party 17. The appellantas noted earlier has brought on record the evidence in his support which in his assessment adequately establishes his case. His suit will succeed or fall with those evidence subject of course to the evidence adduced by the other side. When the plaintiff is unwilling to subject himself to the DNA test forcing him to undergo one would impinge on his personal liberty and his right to privacy. Seen from this perspective the impugned judgment merits interference and is set aside. In consequence thereof the order passed by the learned Trial Court on 28.11.2017 is restored. The suit is ordered to proceed accordingly. 18. With the above order the appeal stands allowed leaving the parties to bear their respective cost. [R. SUBHASH REDDY [HRISHIKESH ROY OCTOBER 1 2021 Page 1

Prostitution shall not be considered an offence: Bombay High Court

While freeing 3 sex workers from Corrective Institution held that prostitution is not an offence and that an adult woman has the right to choose her vocation and cannot be detained without her consent as per the Immoral Traffic (Prevention) Act, 1956 (Act) held by Justice Prthiviraj K. Chavan in Kajal Mukesh Singh,Sneha Anil Singh,Bhumi Anil Singh versus State of Maharashtra [Criminal writ petition no.6065 of 2020]. Facts related to this case is: A secret mission was led by constable Rupesh Ramchandra More (Social Service Branch) on the basis of information received that a man named Mr Nijamuddin Khan, a pimp provides women for prostitution at a guest house in Malad. After a successful decoy, the police arrested the accused along with 3 sex workers. All were produced before the magistrate who ordered a medical examination of the victims and directed an NGO for counselling the victims. After the medical report and preliminary investigation, it was noted that the victim’s belonged to a particular community ‘bediya’ where it is a tradition that a girl after attaining puberty is to be sent for prostitution. The magistrate ordered the detention of the victims for a period of one year from 19th October 2019 considering the fact that the parents themselves are allowing to indulge in prostitution as a profession for their daughters’ and, therefore, it would not be safe to hand over the custody of the victims to their mothers. The police were ordered to transfer the victims to a state-run institutional facility in their native place for the care, protection, shelter and vocational training in the subject of their liking. This order of the magistrate was challenged before the Additional Sessions Judge who upheld the direction of the Magistrate. According to the petitioner since the victims were not being prosecuted, so no question was raised for continuing their detention in any correctional institution. It was further pointed out that Act does not empower the Magistrate to hold the custody of the victims beyond the period of 3 weeks without there being any final order to that effect after following due process of law. It was observed that “Section 17(4) of the said Act provides that after completion of such inquiry, if the Magistrate is satisfied, he may subject to the provisions of sub-section (5) make an order that the victims be detained for such period, being not less than one year and not more than three years, as may be specified in the order, in a protective home for which the Magistrate shall give reasons in writing. It is pertinent to note that that the provisions of Section 17(4) of the Act are subjected to the provision of subsection (5), which provides that the inquiry shall be conducted by the panel of at least 5 persons, to be appointed in the manner as contemplated in the said sub-section (5). No such inquiry as contemplated under the statute has been conducted. The interpretation of the provisions of Section 17(2) and Section 17(5) of the said Act have been considered by the High Court of Delhi in the decision reported in the case of Kumari Sangeeta vs. State of Delhi and Ors. [1996, Criminal Reporter, P-129, (Delhi)].” It was emphasised in the Court, “There is no provision under the law which makes prostitution per se a criminal offence or punishes a person because he indulges in prostitution. What is punishable under the Act is sexual exploitation or abuse of a person for commercial purpose and to earn the bread thereby, except where a person is carrying on prostitution in a public place as provided in Section 7 or when a person is found soliciting or seducing another person in view of Section 8 of the said Act. There is nothing on record to show that the petitioners were seducing any person for the purpose of prostitution nor there is any material to show that they were running a brothel. It seems that the learned Magistrate has been swayed away while passing the impugned order by the fact that the petitioners belong to a particular caste.” The Court held that the victims being major, their fundamental rights to move from one place to another place or to reside at a place of their choice and choose their vocation has to be considered. They couldn’t be subjected to unnecessary detention contrary to their wish and should be asked to reside in the corrective institution. The Court concluded that it was nearly one year that the victims had been detained in the corrective home against their wish and, therefore, for the reasons stated herein, they need to be released forthwith. Click here to read the judgement

Uday S. Jagtap 6065 2020 WP Judgment=.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 6065 OF 2020 Kajal Mukesh Singh Age 23 years Indian Inhabitant permanently R at 629 Ashok Nagar Kalyanpur Kanpur Nagar Uttar Pradesh 208 107 2. Sneha Anil Singh Age 20 years Indian Inhabitant Flat No. 3 Plot No.75 Sector 5 Koperkhairane Navi Mumbai Thane 400 709 3. Bhumi Anil Singh Age 22 years Indian Inhabitant Room No. 107 Squaters Colony Gate No.7 Malwani Kharodi Malad West Mumbai 400 095 The State of Maharashtra Through the Inspector in charge of Malad Police Station Mr. A.M. Saraogi i b Mr. Siddharth Jaiswal for the petitioners Ms. M.H. Mhatre A.P.P for Respondent State CORAM RESERVED ON : 14th SEPTEMBER 2020 PRONOUNCED ON : 24th SEPTEMBER 2020 Act 1956who are alleged to have been compelled to involve themselves in prostitution their identity therefore needs to be concealed. The petitioners therefore shall be referred to as “victims(B) andof the said Act as well as an order dated 22.11.2019 passed by the Additional Sessions Judge Dindoshi in Criminal Appeal No. 2819 which upheld the order dated Uday S. Jagtap 6065 2020 WP Judgment=.doc The facts in brief can be summarized as follows The complainant Rupesh Ramchandra More Police Constable attached to Social Service Branch approached the office of the Social Service Branch Mumbai where he was informed by P.I. Mr. Revle about the secrete information that a person by name Mr. Nijamuddin Khan a pimp Mumbai where the victims would be shown to the decoyer from amongst whom he was supposed to select one victim girl and pimp Nijamuddin will thereafter book a room in a nearby guest house. Uday S. Jagtap 6065 2020 WP Judgment=.doc Accordingly a trap was arranged and the raiding team left for the spot. A rickshaw came and stopped near the decoy and panch no.1. The rickshaw driver spoke to the decoy. The decoy had paid money to rickshaw driver for prostitution. Thereafter two victim girls came out of the rickshaw. The decoy along with one victim girl and panch no.1 left in the same rickshaw. P.I. Revle asked other pancha and few officers of the team to keep a watch on the remaining two victim girls whereas he along with rest of the members of the raiding team followed the rickshaw carrying the first victim and the decoy. The rickshaw stopped in front of a metal gate of a building near Chincholi Phatak S.V.. Road Malad Mumbai. The rickshaw driver victim girl and panch no.1 went inside the building. After some time the driver came out and went back towards Chincholi Bandar Maladto bring remaining two victims. As per the direction of P.I. Revle members of the raiding team who were keeping vigil over the two victims arrested the rickshaw driver and the victims and took them in their custody. Uday S. Jagtap 6065 2020 WP Judgment=.doc P.I. Revle entered into 1st floor of the building named as ‘Madhuban’. There was one “Yatri Guest House”. The first panch was standing near the cash counter. When a raid was conducted the decoy and the victim girl were found in room no.7. The victim was taken into custody from room no.7 of “Yatri Guest House”. The accused and the other two victims were also arrested and taken into custody. The victim (B) and were produced before the Metropolitan Magistrate on 13.09.2019. There were no complaints of ill treatment at the hands of Police. The learned Magistrate for the purpose of verification of the age of the victims as well as to ascertain as to whether they are infected with any sexually transmitted disease referred them for medical examination. The learned Magistrate inter alia called for a report from the Probation Officer in respect of antecedents character and suitability of relatives of the Victims(B) andfor taking their charge. The Probation Officer has been directed to submit a report on or before 07.10.2019. Intermediate custody of victims A) andhad been given to Navjeevan Mahila Vasti Griha Uday S. Jagtap 6065 2020 WP Judgment=.doc Deonar Mumbai. The learned Magistrate had allowed victim girls to contact their family members parents. The learned Magistrate also thought it fit to direct a NGO Justice and Care to give primary education to victims(B) andduring their stay in “Navjeevan Mahila Vasatigruha” as well as “Kshamata NGO” to make an inquiry in respect of victims and submit a report Subsequently victims(B) andwere produced before the learned Magistrate on 19.10.2019 along with their medical reports. No sexual transmitted disease has been detected in respect of any of the victims. The learned Magistrate it appears had also personally inquired with victims(B) and(B) and belong to Uday S. Jagtap 6065 2020 WP Judgment=.doc “Bediya” community. A custom prevails in the community wherein a girl after attaining puberty is sent for prostitution. The parents of the victims were aware that the victims are engaged in prostitution meaning thereby the parents themselves are allowing to indulge in prostitution as a profession for their daughters’ and therefore the learned Magistrate observed that it would not be safe to hand over the custody of the victims to their mothers. The learned Magistrate having perused the report of the Probation Officer NGO and the Medical Officer observed that the victims need care and protection. Since the victims were not safe with their parents as the parents have no objection for the victim girls to live their life as prostitutes the victims were directed to be detained in the shelter home wherein the Counsellor would counsel the victims to restrain from prostitution. It is further observed by the learned Magistrate that the victims need to be counseled and trained so that they can earn in a dignified manner after getting adequate vocational Uday S. Jagtap 6065 2020 WP Judgment=.doc The learned Magistrate had observed that victims(B andare originally from Kanpur Uttar Pradesh and therefore they need to be sent to their original place of native. 15. Having taken into consideration all the facts and circumstances and after going through Sections 17(1) (3) of the said Act the victims(B) andwere detained for a period of one year from 19th October 2019. The victims were directed to be sent to “Nari Niketan Prayag Vastigruha Fultabad Ilahabad UP or any State run institution of Uttar Pradesh for one year for the care protection shelter and vocational training in the subject of their liking. The Superintendent of Navjeevan Mahila Vasahatigruha has been directed to take necessary steps in shifting the victimsB) and to “Nari Niketan Prayag Vasahatigruha Khultabad Dist. Ilahabad Uttar Pradesh or any other State institution of Uttar Pradesh at the earliest in the escort that would be provided by Malad Police Station. Uday S. Jagtap 6065 2020 WP Judgment=.doc The said order was challenged by way of an appeal bearing No. 2819 in the Court of Sessions Judge at Dindhoshi. The learned Additional Sessions Judge dismissed the appeal by confirming the order passed by the learned Magistrate on 19.10.2019. I heard Mr. Saraogi the learned Counsel for the petitioners He contends that both the Courts below have ignored the ambit and scope of the said Act more particularly Section 17 which is not a penal provision as the victims herein are not accused nor being prosecuted under Sections 3 to 9 of the said Act. He submits that both the Courts below have failed to appreciate the factual matrix of the matter which they took it in a very casual cavalier and mechanical manner while passing the impugned orders. Thus according to him the impugned orders came to be passed without application of mind. According to the learned Counsel the victims are major enough to take their own decision in respect of their lives. My attention is drawn by the learned Uday S. Jagtap 6065 2020 WP Judgment=.doc Counsel to the impugned order passed by the learned Magistrate under Section 17(2) of the said Act which according to him is void ab initio as well as bad in law as the mandate created by the statute has not been followed by both the Courts below. Sections 15 and 16 of the said Act are always subjected to the provision of an inquiry under the provision of Section 17 of the Act. He drew my attention to the fact that during the alleged raid conducted by the Investigating Agency no customer was found with the victims petitioners in order to involve the petitioners into any immoral activities like prostitution as defined in the said Act. Since the victims according to the learned Counsel are not being prosecuted there is no question of continuing their detention in the custody of Navjeevan Mahila Vastigruha Deonar Mumbai or with any other institution. Even otherwise the said Act does not empower the Magistrate to hold the custody of the victims beyond the period of 3 weeks without their being any final order to that effect after following due process of law. 1 Uday S. Jagtap 6065 2020 WP Judgment=.doc The learned Counsel has therefore strenuously urged to quash the impugned orders passed by the Metropolitan Magistrate 54th Court Mazgaon Mumbai and the Additional Sessions Judge 22. Mrs. Mhatre the learned APP though supported the impugned orders submitted that in view of the arguments advanced by the learned Counsel for the petitioners necessary orders can be passed as regards further detention of the victims. Inherent jurisdiction of this Court under Section 482 of the Criminal Procedure Code as well as jurisdiction under Article 227 of the Constitution of India has been invoked by the petitioners to meet the ends of justice. This Court in its supervisory jurisdiction as well as under Section 482 of the Cr.P.C. can entertain a petition and after examining the facts and the material placed on record pass necessary orders or give directions. There are certain glaring discrepancies in the impugned orders. The first order of the learned Metropolitan Magistrate 54th Court Mazgaon Mumbai under the said Act dated 30.09.2019 indicates that as per order of 1 Uday S. Jagtap 6065 2020 WP Judgment=.doc holiday remand Court dated 28.09.2019 the victims were produced before her on 30.09.2019. Neither the first order of the remand Court dated 28.09.2019 is produced on record nor there is any observation in the order dated 30.09.2019 by the Magistrate as to where the victims were placed from 28.09.2019 to 30.09.2019. Perusal of this order clearly manifests non application of mind by the learned Magistrate as regards necessity or requirement of keeping the victims in safe custody. In fact the learned Magistrate passed an order under sub section of Section 17 calling for a report from the District Probation Officer The serious lacuna in not ascertaining the custody of the victims from 28.09.2019 to 30.09.2019 would go to the root of the matter The learned Magistrate seems to have not ascertained from the victims as to where they were kept from 28.09.2019 to 30.09.2019 meaning thereby whether the victims were placed in a safer custody as provided in sub Sectionof Section 17 of the said Act. There are no charges qua the victims that they were carrying prostitution in public. The inquiry as contemplated under Section 17(2) of the said Act appears to have been carried in a very casual manner. The impugned orders therefore can be 1 Uday S. Jagtap 6065 2020 WP Judgment=.doc quashed only on this ground itself. Be that as it may. Section 17(4) of the said Act provides that after completion of such inquiry if the Magistrate is satisfied he may subject to the provisions of sub sectionmake an order that the victims be detained for such period being not less than one year and not more than three years as may be specified in the order in a protective home for which the Magistrate shall give reasons in writing. It is pertinent to note that that the provisions of Section 17(4) of the Act are subjected to the provision of sub sectionwhich provides that the inquiry shall be conducted by the panel of at least 5 persons to be appointed in the manner as contemplated in the said sub section and Section 17(5) of the said Act have been considered by the High Court of Delhi in the decision reported in the case of Kumari Sangeeta Vs State of Delhi and Ors. 1996 Criminal Reporter P 129 of Section 17 Thus the learned Magistrate was left with no option but to seek the assistance of the said panel comprised of five persons as provided under Section 17while discharging his functions under the said Section. The learned PPs on the other hand have contended that it was not incumbent on the Magistrate to seek the assistance of a panel of five persons as spoken of under Section 17of the Act inasmuch as the word used therein is ‘may’ which gave an ample option and latitude to the Magistrate and left to his judicious discretion to have the services of those five persons or to ignore the same. Since we are concerned with the construction of Section 17 of the Act it would be just and proper to examine the provisions of the said Section before embarking upon a detailed discussion. In view of the above I am inclined to reproduce Section 17 of the Act in extensor. It is in the following words: “17.When the Special police officer removing a person under sub sectionof Section 15 or a Police Officer rescuing a person under Sub sectionof Section 16 is for any reason unable to produce him before the appropriate Magistrate as required by Sub sectionof Section 15 or before the Magistrate issuing the order under 1 Uday S. Jagtap 6065 2020 WP Judgment=.doc Sub sectionof Section 16 he shall forthwith produce him before the nearest Magistrate of any class who shall pass such orders as he deems proper for his safe custody until he is produced before the appropriate Magistrate or as the case may be the Magistrate issuing the order: Provided …..…..of Section 15 or the Magistrate under Sub section of Section 16 he shall after giving him an opportunity of being heard cause an inquiry to be made as to the correctness of the information received under Sub sectionof Section 16 the age character and antecedents of the person and the suitability of his parents guardian or husband for taking charge of him and the nature of the influence which the conditions in his home are likely to have on him if he is sent home and for this purpose he may direct a Probation Officer appointed under the Probation of Offenders Act 1958 to inquire into the above circumstances and into the personality of the person and the prospects of his rehabilitation. Where the Magistrate is satisfied after making an inquiry as required under Sub section(a that the information received is correct andthat he is in need of care and protection he may subject to the provisions of Sub sectionmake an order that such person be detained for such period being not less than one year and not more than three years as may be specified in the order in a protective home on in such other custody as he shall for 1 Uday S. Jagtap 6065 2020 WP Judgment=.doc reasons to be recorded in writing consider suitable: Provided that such custody shall not be that of a person or body of persons of a religious persuasion different from that of the person and that those entrusted with the custody of the person including the persons in charge of a protective home may be required to enter into a bond which may where necessary and feasible contain undertakings based on directions relating to the proper care guardianship education training and medical and psychiatric treatment of the person as well as supervision by a person appointed by the Court which will be in force for a period not exceeding three years.In discharging his functions under Sub sectiona Magistrate may summon a panel of five respectable persons three of whom shall wherever practicable be women to assist him and may for this purpose keep a list of experienced social welfare workers particularly women social welfare workers in the field of suppression of immoral traffic in persons.of Section 17 shall be construed as “shall” insofar as summoning a panel of 5 respectable persons is concerned 3 of whom shall wherever practicable be women to assist him and may for this purpose keep a list of experienced social welfare 1 Uday S. Jagtap 6065 2020 WP Judgment=.doc workers. In view of the judgment in case of Kumari Sangeeta supra) the word “may” and the word “shall” are interchangeable terms. It cannot be deducted ipso facto from use of word “may” in a particular statute that it has been used in the sense of directly conferring an ample discretion on the part of the Authority to take recourse to board intercourse of action are not much will depend upon the context in which the word “may” has been used and the intention of the legislature which they intend to convey through a particular enactment. Section 17(4) implies that an order under the said Section can only be passed subject to the provision of sub sectionof Section 17 of the said Act. As already stated sub section the Magistrate will have to summon a panel of 5 respectable persons 3 of whom shall wherever practicable be women to assist him in that regard. It can therefore be safely inferred that the legislature while using the word “may” wanted to use it in a mandatory sense otherwise they would not have subjected to exercise powers under Sections 17(2) to 17(5) of the 1 Uday S. Jagtap said Act. 6065 2020 WP Judgment=.doc It is interesting to note the relevant provisions of the said Act which go to show that the purpose and the object of the Act is not to abolish the prostitution or the prostitute. There is no provision under the law which makes prostitution per se a criminal offence or punishes a person because he indulges in prostitution What is punishable under the Act is sexual exploitation or abuse of person for commercial purpose and to earn the bread thereby except where a person is carrying on prostitution in a public place as provided in Section 7 or when a person is found soliciting or seducing another person in view of Section 8 of the said Act. The record does not reveal nor there is a charge against the victims petitioners that they were indulged in prostitution as defined in Section 2(f) of the said Act. There is nothing on record to show that the petitioners were seducing any person for the purpose of prostitution nor there is any material to show that they were running a brothel. It seems that the learned Magistrate has been swayed away while passing the impugned order by the fact that the petitioners belong to a particular caste. It is equally important 1 Uday S. Jagtap 6065 2020 WP Judgment=.doc to note that the petitioners victims are major and therefore have a right to reside at the place of their choice to move freely throughout the territory of India and to choose their own vocation as enshrined in Part III of fundamental rights of the Constitution of India. The learned Magistrate before passing the impugned order ought to have considered the willingness and consent of the victims before ordering their detention in the protective home The orders impugned dated 19.10.2019 by the Metropolitan Magistrate Mazgaon and the order dated 22.11.2019 passed by the Additional Sessions Judge Dindoshi therefore need to be quashed as the same are bad in law. Clause of Article 19 of the Constitution of India contemplates that all citizens shall have following rights which read as under : “(a) to freedom of speech and expression to assemble peaceably and without arms to form association or unions(d) to move freely throughout the territory of India to reside and settle in any part of the territory of India and to practice any profession or to carry on any occupation trade or business.” 1 Uday S. Jagtap 6065 2020 WP Judgment=.doc There is no doubt that the State Government within its power under the said Act keeping in mind the interest of the victims can seek appropriate directions from the Court to send the victims to corrective institution. However it cannot be lost sight of the fact that the fundamental rights conferred upon the citizen of India in part III of the Constitution of India are with reasonable restrictions mentioned in each Article. The fundamental rights of the citizens enshrined in this part of the Constitution stand on the higher pedestal vis a vis statutory right or any other right conferred by the general law. In view of this position of law the victims being major their fundamental rights to move from one place to another place or to reside at a place of their choice and choose their vocation has to be considered. They cannot be subjected to unnecessary detention contrary to their wish and should be asked to reside in the corrective institution. There is no material on record suggesting that the victims are suffering from any disability or any diseases so that reasonable restrictions can be placed. It is not the case of the 2 Uday S. Jagtap 6065 2020 WP Judgment=.doc Police that setting the victims free would cause some danger to the society. It is nearly one year that the victims have been detained in the corrective home against their wish and therefore for the reasons stated herein they need to be released forthwith. As regards the reports of the Probation Officer which were sent in a sealed cover to this Court it is noticed that the reports in respect of the victims(B) andare stereotype of which two reports are undated while one report in case of victimis dated 30.07.2020. The reports are so casual and cryptic which simply indicate that in view of indulgence of the victims in prostitution they need to be sent to Naariniketan Prayag Mahila Vasahatigruha Uttar Pradesh for a period of one year for training and counseling. These reports according to me not worth consideration since they appear to have been prepared at the eleventh hour only for the sake of fulfilling the formality of submitting the reports. There is one more glaring discrepancy which is apparent from the face of the record that the alleged two panchas said to 2 Uday S. Jagtap 6065 2020 WP Judgment=.doc have accompanied the raiding team have not been named anywhere. There is even no mention of name of woman panch witness in the record. A reasonable doubt therefore creeps in one’s mind whether any such persons were in fact called and had acted as panch witnesses. At least the record submitted before this Court does not reveal anything in that regard. The second glaring discrepancy is that no inquiry qua pimp Nijamuddin with the victims appears to have been made by the learned Magistrate as to whether the said pimpNijamuddin was running a brothel or was responsible for procuring the victims or inducing them for the purpose of prostitution. There is even no statement of the decoy indicating any conversation with the victim girl. Admittedly pimp Nijamuddin is being prosecuted under Section 370(3) of the Indian Penal Code and Sections 4 and 5 of the said Act 34. Having considered the entire facts of the case and submissions made by the learned Counsel for the petitioners and the learned APP the impugned orders need to be quashed and set aside. 2 Uday S. Jagtap 6065 2020 WP Judgment=.doc Consequently to secure the ends of justice following order is expedient : The impugned order dated 19.10.2019 passed by the learned Metropolitan Magistrate Special Court for ITPA 54th Court at Mazgaon Mumbai and confirmed by the Additional Sessions Judge Dindoshi in Criminal Appeal No. 248 of 2019 are quashed and set aside ii) The petitioners be enlarged and set at liberty from Navjeevan Mahila Vastigruha Deonar Mumbai forthwith iii) Before setting the petitioners at liberty their wishes be ascertained whether they desire to continue their stay in Navjeevan Mahila Vastigruha Deonar Mumbai for remaining period or otherwise If they do not wish to continue their stay in Navjeevan Mahila Vastigruha Deonar they be released forthwith iv) The petitioners shall remain present before the trial Court during the course of trial at the time of recording their evidence if summoned The Special Magistrate shall ensure that the victims are 2 Uday S. Jagtap 6065 2020 WP Judgment=.doc given adequate protection and are not influenced by any one at the time of recording their evidence vi) The petitioners shall furnish their permanent address to the Investigating Officer as well as their mobile numbers 36. With the aforesaid directions the Petition stands disposed of Rule is made absolute in the aforesaid terms. This order shall be digitally signed by the Private Secretary of this Court. All concerned shall act on production by fax or e mail of a digitally signed copy of this order. (PRITHVIRAJ K. CHAVAN J 2

Application questioning the answers given for raised queries was found satisfactory by the appellate authority – The SECURITIES AND EXCHANGE BOARD OF INDIA

Application questioning the answers given for raised queries was found satisfactory by the appellate authority – The SECURITIES AND EXCHANGE BOARD OF INDIA An appeal questioning the unsatisfactory answers for the 23 queries raised by the applicant was heard and disposed of by THE APPELLATE AUTHORITY Mr. ANAND BAIWAR in the case of Prateek Tewari versus CPIO, SEBI Appeal No. 4554 of 2021. The background of the case is that the appellant filed an application under the Right to Information Act, 2005 and the respondent responded to the application filed and the appellant filed an appeal on the basis that the respondent has not given proper information about the investigation and inquiry conducted in the matter of the issuance of OFCDs by Sahara India Real Estate Corporation Ltd. based on misconstruction and erroneous interpretation of the exceptions/provisions provided under Section 8 of the RTI Act the appellant is not satisfied with the provided in queries 1to 23(except 17) and the appeal is dealt by the appellant authority. The authority looked upon the queries and answers given by the respondent and found out that the answer given in most of the queries are satisfactory and have correct responses towards question some queries asked for confidential information like queries 9 and 10 and they were answered according to the rules. The authority concludes that the respondent has adequately addressed the queries by providing the information available with him and also guiding the appellant to access the information available on the SEBI website and the appellant has not made any specific submission regarding the response provided by the respondent hence the authority does not find any default in giving answers. further, It was found out that exemption under Section 8 cannot be claimed because the respondent has not claimed an exemption under Section 8 of the RTI Act. The authority, at last, remits the matter to the respondent for de novo consideration of query numbers 12 and 13 and to send a proper response to the appellant regarding these queries, and the appeal is disposed of. Click here to read the order

Appeal No. 45521 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 45521 Prateek Tewari CPIO SEBI Mumbai The appellant had filed an application dated September 18 2021under the Right to Information Act 2005 against the said response dated October 21 2021and Sahara Housing Investment Corporation Ltd. based on misconstruction and erroneous interpretation of the exceptions provisions provided under Section 8 of the RTI Act. On perusal of the appeal it appears that the appellant is not satisfied with the response provided to query numbers 1 to 23and the response provided thereto in the following paragraphs. 3. Query number 1 The appellant vide query number 1 of his application dated September 18 2021 sought the copies of all the Material Document Information Communication for the period from January’ 2010 to August’ 2010 made by SEBI Board to ENAM Securities Pvt Ltd JM Financial Consultants Pvt Ltd Edelweiss Capital Ltd IDBI Capital Markets and Securities Ltd. Daiwa Security SMBC India Pvt Ltd. The appellant also sought the communication information received by SEBI from these entities. The respondent in response to query number 1 informed that the correspondences sent by SEBI were issued in the course of its regulatory function and it may contain information of commercial confidence Appeal No. 45521 relating to the entities whom the notice was issued or even other entities. Therefore the same is exempt from disclosure under Section 8(1)(d) of the RTI Act. The respondent also informed that the replies and submissions made by an entity may contain the information received in confidence from various entities as part of the regulatory process and held by SEBI in fiduciary capacity. Therefore the same is exempt from disclosure u s 8(1)(e) of the RTI Act. The appellant in his appeal inter alia submitted that the information sought is neither the commercial confidence relating to third party nor held by SEBI in fiduciary capacity and further would not harm the competitive position of any third party. The appellant also submitted that he had sought information with respect to prosecution of Sahara. I have perused the queries and the response provided thereto. I note that the respondent denied disclosure of information by observing that the same is available to SEBI in fiduciary capacity and includes information pertaining to commercial confidence. I have no reason to disbelieve the respondent’s observation. I note that in Writ PetitionNos. 8396 2009 16907 2006 4788 2008 9914 2009 6085 2008 7304 2007 7930 2009 and 36007 the Hon’ble High Court of Delhi in its order dated November 30 2009 held that the ‘person’ referred to in section 8(1)of the RTI Act will include a public authority. It also held that: “In a fiduciary relationship the principal emphasis is on trust and reliance the fiduciary’s superior power and corresponding dependence of the beneficiary on the fiduciary. It requires a dominant position integrity and responsibility of the fiduciary to act in good faith and for the benefit of and to protect the beneficiary and not oneself”. Further the Hon’ble CIC in the matter of Mr. Ashok Kumar Rajak vs. CPIO SEBI held that “Further the details such as investigation report file noting directions and various communication involves with the third party information which is received from other agencies is being held by them in fiduciary capacity hence the same is barred from disclosure under section 8(1)(e) &of the RTI Act 2005.” I find that SEBI being the regulatory authority for the securities market gets various references documents from market participants and the information contained therein are received in ‘fiduciary relationship’. I also find that such reference documents received by SEBI or correspondences made by SEBI with other entities may contain information in the nature of commercial confidence disclosure of which may adversely impact the competitive position of the concerned entities. I therefore find that such information pertaining to commercial confidence and which contains information received in ‘fiduciary relationship’ from market participants etc. is exempted from disclosure under Sections 8(1)(d) and 8(1)(e) of the RTI Act. Accordingly I do not find any deficiency in the response. 6. Query numbers 2 and 3 The appellant vide query numbers 2 and 3 sought the following information: Appeal No. 45521 “2. Provide copies of all the ‘Office Note Official Noting’ of the proceedings made by the Officer(s) of SEBI Board for the period from January’ 2010 to August’ 2010 in respect of the enquiry proceedings conducted by the SEBI Board into the alleged violation of the provisions of the SEBI Act 1992 Securities Contract the Depositories Act’ 1996 & the Provisions of the section 55A of the Companies Act’ 1956 and the Rules & Regulations made or directions issued by SEBI Board thereof by SIRECL and SHICL pursuant to the complaint dated 25.12.2009 & complaint dated 04.01.20103. Kindly provide the copies of all the material document Information Communication Office Note on the basis of which an order dated 16.08.2010 was passed by SEBI for initiating an investigation in the above referred subject matter Provide copy of the Order dated 16.08.2010 ” In response to the aforesaid queries the respondent informed that information sought is exempt from disclosure under Sections 8(1)(a) 8(1)(d) and 8(1)(e) of the RTI Act as the same pertains to internal functioning of SEBI and is strategic in nature disclosure of which may hamper the decision making by SEBI in its supervisory and regulatory role. The respondent also informed that requested information may contain information available to SEBI in fiduciary relationship and may include information which is of commercial confidence the disclosure of which could harm the competitive position of the entities. The appellant in his appeal inter alia submitted that the response provided to query number 2 and 3 is vague evasive misconstrued misconceived and without any basis. The appellant also referred to the order passed by the Hon’ble Supreme Court in the matter of RBI vs. Jayantilal N. Mistry No. 915]. Further the appellant submitted that the respondent is bound to disclose the information which involves as element of larger public interest. I have perused the queries and the response provided thereto. On consideration I agree with the response of the respondent that the requested information pertains to information which is strategic in nature. I find that the disclosure of the same would affect and compromise the regulatory functions and roles of SEBI. The same may also hamper decision making by SEBI. I also agree with the respondent that the requested information is held in a fiduciary capacity and the same may form part of office notes file notings etc. I note that the requested information will also be governed by the observations made in para 5 above. In view of the observations I find that the requested information is exempt Appeal No. 45521 from disclosure under Sections 8(1)(a) 8(1)(d) and 8(1)(e) of the RTI Act. Accordingly I do not find any deficiency in the response. 10. Further I note that the appellant in his appeal has referred to the decision of the Hon ble Supreme Court in the matter of RBI vs. Jayantilal N. Mistrywhich inter alia states that RBI is clearly not in any fiduciary relationship with any bank and that there is no relationship of ‘trust’ between them. I note that the appellant has not made any submission as to how the said judgement is relevant in the extant matter. I note that the facts and circumstances of the said order were totally different. In this regard reliance is placed on the matter of Arun Damodar Sawant vs. SEBI Order dated September 26 2018) wherein the Hon’ble CIC had accepted the submission of SEBI regarding existence of fiduciary relationship even after considering the appellant’s submissions wherein he had relied upon the aforementioned judgement of Hon’ble Supreme Court in the matter of RBI vs. Jayantilal N. Mistry. Further I note that the appellant has not established how the information involves an element of larger public interest. In view of the said observations I do not find any merit in the submission of the appellant. 11. Query numbers 4 and 5 The appellant vide query number 4 sought details of the ‘Investigating Officer’ appointed by SEBI Board to investigate into the violation in the matter of issuance of OFCD by SIRECL and SHICL. Vide query number 5 the appellant sought the copy of the order circular or office note in regards to the appointment of the “Investigating Officer”. In response to query numbers 4 and 5 the respondent informed that the information sought relates to personal information the disclosure of which has no relationship to any public activity or interest and may cause unwarranted invasion into the privacy of the individual and may also endanger the life or physical safety of the person. The same is therefore exempt in terms of Section 8(1)(g) and 8(1)(j) of the RTI Act I have perused the queries and the response provided thereto. As regards the non disclosure of information relating to name of investigating officer I find that a similar issue was settled in H. E. Rajashekarappa vs. State Public Information Officer and Ors.wherein the Hon’ble High Court of Karnataka had ruled that: "... it cannot be said that section 2(f) of the Act wherein it was concluded that the disclosure of information relating to the name etc. of SEBI official(s) is exempt under Sections 8(1)(g) and 8(1)(j) of the RTI Act. Further I note that the decision making process in SEBI is a collective affair in which officers of different levels contribute and hence the names of SEBI officials handling the matter are internal to the functioning of SEBI and the said information relates to personal information the disclosure of which has no relation to any public activity. In view of the observations I do not find any deficiency in the response. 14. Query numbers 6 The appellant vide query number 6 sought the copy of the ‘Report of the Investigation’ submitted by the Investigating Officer to the SEBI. In response to query 6 informed that the investigation report may contain information received in confidence from various entities as part of the regulatory process and held by SEBI in fiduciary capacity and also may include information pertaining to commercial confidence the disclosure of which could harm the competitive position of the entities. The respondent also informed that the requested information contains personal information the disclosure of which has no relationship to any public activity or interest and may cause unwarranted invasion into the privacy of the individual and may also endanger the life or physical safety of the person. Therefore the information sought is exempt from disclosure under Sections 8(1)(d) 8(1)(e) 8(1)(g) and 8(1)(j) of the RTI Act. Additionally the respondent informed that in the same matter prosecution proceedings are ongoing in respect of the companies SIRECL and SHICL and its directors. Therefore the information is also exempt under Section 8(1)(h) of the RTI Act as disclosure of the information may impede the prosecution of offenders. The respondent also informed that the information that can be disclosed in the matter with respect to the queries raised in the captioned RTI application is already available in the SEBI order dated November 24 2010. 16. The appellant in his appeal inter alia submitted that the respondent denied information wilfully and deliberately as regards the disclosure of information sought by the appellant. Further the appellant submitted that the respondent has failed to mention how revealing the information could impede the process of prosecution of offenders specially when the prosecution of offenders has already been concluded. I have perused the query and the response provided thereto. I note that investigation report is the culmination of the part in the process of investigation wherein the information is sought gathered and analyzed to crystallize the preliminary charges for which the entities individuals are issued show cause Appeal No. 45521 notices. Such information gathered by SEBI may include information relating to commercial and business interest as submitted by the entities individuals against whom the investigation is conducted by SEBI. Such information is summoned by SEBI in the discharge of its regulatory function and in its authority as a regulator of the securities market. Such information thus called for is provided by the entity irrespective of whether the same is confidential or in the nature of commercial confidence. Under the provisions of the law in force at the time it is incumbent on the entities individuals during investigations to provide the requisite information lest they be visited upon with the consequences of non compliance with the summons issued by SEBI in the matter. Hence it is the duty of the entities individuals during investigation to provide the requisite information to SEBI without any recourse to the claim of privacy or confidentiality. Furthermore I note that under the scheme of SEBI Act Section 11C empowers SEBI to investigate and based on investigation appropriate actions are initiated in accordance with the provisions of the SEBI Act. Further Section 11C embarks a duty upon every person to provide the information called for by Investigating Officer and any failure thereto is a punishable Act under Section 11Cof SEBI Act. Further such person by virtue of Section 11C of SEBI Act is bound to disclose said information to SEBI even though disclosure of such information is confidential and against business or commercial interest of such person or an entity relating to which the information is provided to the Investigating Authority. I note that such kind of information received by SEBI is third party information and is received in its fiduciary capacity. I note that similar contentions were accepted by the Hon’ble CIC in the matter of Arun Kumar Agrawal vs. The CPIO SEBI order dated August 04 2020). Further I note that the respondent has categorically stated that prosecution proceedings are ongoing in respect of the companies SIRECL and SHICL. In this context I note that the Hon’ble CIC in the CIC AT A 2007 00007 observed that "17. Thus the term investigation used in Section 8(1)(h) in the context of this Act should be interpreted broadly and liberally. We cannot import into RTI Act the technical definition of investigation one finds in Criminal Law. Here investigation would mean all actions of law enforcement disciplinary proceedings enquiries adjudications and so on. Logically no investigation could be said to be complete unless it has reached a point where the final decision on the basis of that investigation is taken. In that sense an investigation can be an extended investigation. In the case of the Income Tax Department investigation into tax evasion can be said to be over or complete only after the final adjudication about the tax liability had been made after the matter has gone through all the stages of appeals and revisions as well as a final decision about prosecuting or not prosecuting that person has been taken by an appropriate competent authority. The respondents are therefore right in holding that it would be a misnomer to hold that investigation in matters such as this the moment the Investigating Officer submits his report to the competent authority spells the end of investigation." In view of these observations I find that the requested information is exempt from disclosure under Sections 8(1)(d) 8(1)(e) and 8(1)(h) of Appeal No. 45521 the RTI Act. information 18. Query numbers 7 and 8 The appellant vide query numbers 7 and 8 sought he following “7. Kindly Provide for the list of the Board members members of the committee dealing with the above subject matter in relation to the refund to the Investors pursuant to the order direction of the Supreme Court for the years 2012 13 2013 14 2014 15 2015 2016 2016 17 2017 18 2018 19 2019 20 & 2020 21 . 8. In relation to question no. 7 above kindly provide for the procedure being followed by the Board member committee looking into the above subject matter in the process of its decision making ” 19. The respondent in response to query numbers 7 and 8 provided the information regarding directions passed by the Hon’ble Supreme Court vide which Mr. Justice B.N. Agarwal a retired Judge was appointed to oversee whether directions issued by the Court were properly and effectively complied with by SEBI and other officials. The respondent also informed that the instructions made by Justice B.N. Agarwal SEBI with regards to refund process were informed to the Hon’ble Supreme Court from time to time by way of filing 22 status reports in total. Further the matter is pending before the Hon’ble Supreme Court. The respondent also guided the appellant to access the orders passed by the Hon’ble Supreme Court in this matter. The appellant in his appeal inter alia submitted that the information provided is partial incomplete vague misplaced misconstrued and misconceived. I have perused the queries and the response provided thereto. With respect to query number 7 I note that the respondent has adequately addressed the query by providing the information available with him. Further no specific submission has been made by the appellant in his appeal regarding the response of the respondent. In view of the same I find that no further interference is warranted at this stage. 21. With respect to query number 8 I note that the appellant has sought information regarding procedure followed by the Board in the process of its decision making. I find that the same is in the nature of seeking clarification from the respondent. In this context I note that the Hon’ble CIC in the matter of G. Vairamathu vs. CPIO Railways Southern Railwaysheld that “7. This Commission observes that the CPIO is not obliged to provide clarification to the appellant regarding the procedure of compassionate appointment under the RTI Act 2005.” In view of these observations I find that the respondent is not obliged to provide clarification to the appellant. Accordingly no further intervention Appeal No. 45521 is warranted at this stage. information 22. Query numbers 9 and 10 The appellant vide query numbers 9 and 10 sought the following “9. In relation to question no. 7 above kindly provide the copies of all the “Office Note Official Notings Instructions Records of the proceedings made by the Board Members Committee for the years 2012 13 2013 14 2014 15 2015 16 2016 2017 2017 18 2018 19 2019 20 &2020 21 . 10. Provide copies of all the Office Note Official Notings instructions records of the proceedings made by the SEBI Board members Committee on the issue of refund to be made to the investors ” 23. The respondent in response to the aforesaid queries informed that the information sought pertains to the internal functioning of SEBI and is strategic in nature disclosure of which may hamper the decision making by SEBI. The respondent also informed that the requested information is exempt under Section 8(1)(h) of the RTI Act as the matter is pending before the Hon’ble Supreme Court. The appellant in his appeal inter alia submitted that the response suffers from legal infirmity. Further the appellant submitted that Supreme Court is only monitoring the cases of SIRECL and SHICL. 24. On consideration I am of the opinion that the office notes notings etc. may contain information which is confidential and strategic in nature concerning regulatory functions of SEBI. Since the requested information is regarding the issue of refund to be made to investors I note that the same may also contain information which is personal in nature and disclosure of which would cause unwarranted invasion of the privacy of third parties. In view of these observations I find that the requested information is exempt from disclosure under Sections 8(1)(a) and 8(1)(j) of the RTI Act. 25. Query numbers 11 12 and 13 The appellant vide query numbers 11 12 and 13 sought he following information “11. Provide details of the exact Balance Amount as on 31st August 2021 in the various SEBI SAHARA refund Bank Accounts especially opened for the repayment purpose in terms of the Order of the Supreme Court of India Appeal No. 45521 12. Provide for the Bank wise details of the Amountas on 31st August 2021 deposited into various Nationalised Banks by SEBI in SEBI Sahara Account in terms of Order dated 31.08.2012 of the Hon’ble Supreme Court of India 13. What was the exact amount recovered by the SEBI board through the attachment of assets of various SAHARA Group of Companies pursuant to various orders passed by Supreme Court of India Kindly provide the details of the attached assets & the Recovery made against each of such assets in tabular format ” In response to query numbers 11 and 12 the respondent informed that pursuant to the various orders passed by the Hon’ble Supreme Court and the attachment orders dated February 13 2013 passed by SEBI in the matter SIRECL SHICL an aggregate amount of Rs. 15 473 Crores has been deposited to ‘SEBI Sahara Refund” Account. The respondent also informed that the amounts along with interest earned on them after providing for making refunds to the bondholders of SIRECL and SHICL have been deposited in ‘Nationalized Banks’ in terms of the judgement dated August 31 2012 of the Hon’ble Supreme Court. Further the respondent also informed the total amount deposited in ‘Nationalized Banks’ as on March 31 2021. The respondent also stated that the information sought in respect of amount deposited in various nationalized banks is exempt from disclosure under Section 8(1)(d) of the RTI Act as the same relates to commercial confidence the disclosure of which could harm the competitive position of the entities. With respect to query number 13 the respondent informed that the information is exempt from disclosure under Section 8(1)(d) as it relates to commercial confidence and disclosure of the same could harm the competitive position of the entities. 27. The appellant in his appeal inter alia submitted that the disclosure of information of the total amount deposited in nationalized banks is a public information and information based on record and data available with SEBI. The appellant also submitted that the respondent failed to appreciate the fact that appellant sought information for total money recovered by SEBI Board through the attachment of assets of various SAHARA Group Companies. pursuant to various orders passed by the Hon’ble Supreme Court. 28. With respect to query number 11 pertaining to balance amount in various SEBI Sahara Refund Bank Accounts I note that the respondent has adequately addressed the query by providing the information available with him. Accordingly I do not find any deficiency in the response. 29. With respect to query number 12 I note that the respondent has provided the total amount deposited in the Nationalized Banks. I note that the respondent with respect to the query seeking “bank wise Appeal No. 45521 details” of amount deposited in various nationalized banks has claimed exemption under Section 8(1)(d) of the RTI Act and stated that the information sought in respect to various Nationalized Banks relates to commercial confidence the disclosure of which could harm the competitive position of the entities. On consideration I find that the respondent has not explained how the said exemption would apply. Therefore the respondent shall reconsider the query number 12 afresh and provide an appropriate response thereon. 30. On perusal of query number 13 I note that the appellant has sought amountrecovered by the SEBI Board through the attachment of assets of various SAHARA Group of Companies pursuant to various orders passed by Supreme Court of India. Further I note that the respondent has denied the information on the ground that the same is exempt under Section 8(1)(d) of the RTI Act. On consideration I find that the respondent has not explained how the said exemption is applicable to this query. Therefore the respondent shall reconsider the query number 13 afresh and provide an appropriate response thereon. information 31. Query numbers 14 15 and 16 The appellant vide query numbers 14 15 and 16 sought the following “14. Provide the details of all expenses made from August 2012 till date i.e 31.08.2021 from the SAHAR SEBI Account with head wise bifurcation & Agencies Head names 15. Kindly Provide details of SEBI Employees getting remuneration compensation salary from SAHAR SEBI Account and the amount being given to each of such employees per month and total amount paid till date i.e 31.08.2021 toward disbursement of salaries 16. Kindly provide details of the exact amount of remuneration compensation salary being paid per month or otherwise to JusticeMr. BN Agarwal appointed by the Hon’ble Supreme Court of India in the above referred matter from the SAHARA SEBI Account and total amount paid to him from the date of his Appointment till date i.e 31.08.2021 ” In response to the aforesaid queries informed that in terms of Hon’ble Supreme Court Order dated August 31 2012 details of expenses incurred by SEBI were submitted to Hon’ble Supreme Court by way of filing Interlocutory Applications and or Status Reports duly approved by JusticeMr B.N. Agarwal appointed by the Hon’ble Supreme Court in the said matter. The respondent also informed that the requested information is exempt from disclosure under Section 8(1)(h) as the matter is presently pending before Hon’ble Supreme Court. Appeal No. 45521 33. The appellant in his appeal inter alia submitted that the Hon’ble Supreme Court is only monitoring cases of SIRECL and SHICL and pendency of Sahara cases are more in the nature of compliance. The appellant also submitted that pendency of a case before Supreme Court is no bar to disclose information. I have perused the queries and the response provided thereto. I note that the respondent has claimed exemption under Section 8(1)(h) of the RTI Act. The respondent has also informed that the matter is pending before the Hon’ble Supreme Court. In addition to the same I note that the details of expenses incurred by SEBI were submitted to Hon’ble Supreme Court by way of filing Interlocutory Applications and or Status Reports. In view of the order dated July 10 2007 in the matter of Shri Shankar Sharma & Ors. vs. The Director of Income TaxII & CPIOas discussed in para 17 above I agree with the response of the respondent and hold that the requests made herein by the appellant squarely attract the exemption under Section 8(1)(h) of the RTI Act. Accordingly I do not find any deficiency in the response. 35. Query number 19 The appellant vide query number 19 sought he following information “19. Provide the details eg. Exact Amount of Refund date of Refund and Name of the Investor against such refund made till 31.08.2021 ” In response to query number 19 the respondent informed that the information sought by the appellant relates to personal information and third party subscribers in OFCDs issued by SIRECL & SHICL and disclosure of which has no relation to any public activity or interest and is exempted under Section 8(1)(j) of RTI Act. The appellant in his appeal inter alia submitted that the appellant has not sought any information which is related to privacy of the person. I have perused the query and the response provided thereto. I note that the respondent denied disclosure of the requested information in terms of 8(1)(j) of the RTI Act. In this context reference is made to the judgment of the Hon ble Supreme Court of India in the matter of Central Public Information Officer Supreme Court of India Vs. Subhash Chandra Agarwal in Civil Appeal No. 10044 of 2010 with Civil Appeal No. 10045 of 2010 and Civil Appeal No. 2683 of 2010 wherein the import of "personal information" envisaged under Section 8(1)(j) of RTI Act has been exemplified in the context of earlier ratios laid down by the same Court in other matter(s). The Hon’ble Supreme Court held that: Appeal No. 45521 59. Reading of the aforesaid judicial precedents in our opinion would indicate that personal records including name address physical mental and psychological status marks obtained grades and answer sheets are all treated as personal information. Similarly professional records including qualification performance evaluation reports ACRs disciplinary proceedings etc. are all personal information. Medical records treatment choice of medicine list of hospitals and doctors visited findings recorded including that of the family members information relating to assets liabilities income tax returns details of investments lending and borrowing etc. are personal information. Such personal information is entitled to protection from unwarranted invasion of privacy and conditional access is available when stipulation of larger public interest is satisfied. This list is indicative and not exhaustive..." In view of the above observations I am of the opinion that the requested information relates to personal information of third parties the disclosure of which has no relationship to any public activity or interest and may cause unwarranted invasion into the privacy of the individual. Hence the same is exempted from disclosure under Section 8(1)(j) of the RTI Act. Accordingly I do not find any deficiency in the response. sought he following information Query numbers 18 20 21 22 and 23 The appellant vide query numbers 18 20 21 22 and 23 “18. In reference to query no. 13 Is the verification process complete If the reply to query is affirmative provide the exact date on which the process of verification of the pending refund claim has been completed 20. What is the total amount of the refund made by the SEBI to the Investors in the above referred matter for the period of Jan 2012 till 31st August 2021 21. What is the last date fixed by SEBI for the investors to apply for the refund in the above referred matter Prove for the copy of the ‘Office Note Official Notings Instructions records in relation to fixing the last date for claiming refunds by the Investor 22. What is number of total pending applications as on 31.08.2021 received by the SEBI for claiming 23. Provide the details of the total amount to be refunded to the Investors against the pending claims as of refund by the Investors on 31.08.2021 ” In response to the aforesaid queries the respondent informed that the Hon’ble Supreme Court vide order dated August 31 2012 inter alia directed SEBI to refund to the subscribers the moneys invested by them in the OFCDs issued by the two companies i.e. SIRECL and SHICL only. The respondent Appeal No. 45521 also informed that as per the direction of the court and the advice of JusticeB.N. Agarwal SEBI issued press release on May 28 2013 and press advertisements during the months of August September 2014 and December 2014 advising the bondholders of SIRECL and SHICL to make necessary applications for refund. Further the respondent provided the cut off date i.e. last date for receiving the applications for refund along with the details of the relevant advertisements. The respondent also informed the total number of applications received total number of applications against which refunds were made total amount refunded as on March 31 2021 etc. The respondent also guided the appellant to access the details of applications received and refunds made to bond holders which is available on the SEBI website. The appellant in his appeal inter alia submitted that the respondent has responded to the queries in a vague and evasive manner and that exemption under Section 8 cannot be claimed. 41. On consideration I note that the respondent has adequately addressed the queries by providing the information available with him and also guiding the appellant to access the information available on the SEBI website. Further I note that the appellant has not made any specific submission regarding the response provided by the respondent. Accordingly I do not find any deficiency in the response. 42. Further I note that the appellant in his appeal submitted that exemption under Section 8 cannot be claimed. On perusal of the response I find that the respondent has not claimed any exemption under Section 8 of the RTI Act. In view of the same I do not find any merit in the submissions made by the 43. Considering the above observations I remit the matter to the respondent for de novo consideration of query numbers 12 and 13 of the application dated September 18 2021 and to send appropriate response to the appellant in terms of RTI Act within 30 working days from the date of receipt of this 44. The Appeal is accordingly disposed of. Place: Mumbai Date: January 06 2022 ANAND BAIWAR APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA appellant. order.

Mere apprehension without materials cannot be entertained – Madras High Court

The petitioner’s claims concerning the investigation are unfounded. As can be seen, the inquiry into this matter is continuing as planned. Already, 55 witnesses have been interviewed, a forensic report has been acquired, and a post mortem doctor’s opinion has been obtained. Also, CDR data has been collected and validated. This was decided by the single bench heading Honourable Justice M. Nirmal Kumar in the case of Uma v. The Superintendent of Police & Ors. (W.P.No.20976/2021) The crux of the issue is that the complainant’s mother Nachathal was living alone in Ayegoundanpalayam after her father died five years ago. A case was registered in Crime No.64 of 2021 under Section 174 of Cr.P.C., on the complaint of one Chellamuthu/de facto complainant when the de facto complainant received a phone call from the Villagers about 5 p.m. on 17th February, 2021, informing him of smoke coming from his mother’s house. The de facto complainant’s mother committed suicide by self-immolation, and the complainant instructed his relative Eswari to check and tell. Eswari went to the Nachathal’s residence and found that the de facto complainant’s mother had committed suicide by self-immolation. Doctors at the Dharapuram Government Hospital then confirmed her dead and deposited her remains in the morgue. The petitioner, who is the daughter of deceased, expressed concern about her mother’s death and made a representation to the Superintendent of Police, Tiruppur, on February 24, 2021. The petitioner’s complaint is that on February 18, 2021, about 5.30 p.m., she alerted the Mulanur Police that she had some doubts about her mother’s death. Her mother had been murdered, and she felt it was the fault of her brother Chellamuthu and sister-in-law Anbukarasi. The petitioner’s complaint is that the First Information Report was submitted incorrectly with misleading information, and she gathered photographs of her mother’s body, but no action was taken, and the claims recorded were not accurate. The Mulanur Police do not collect the phone numbers of the suspects. The probe had been stalled for more than three months by the police. The details of the CDR were not verified. The following facts were discovered throughout the investigation. Nachathal was about 80 years old when she died, and she was living alone in a modest cottage in Ayegoundanpalayam Village. She had two children, one named Tr. Chellamuthu and the other named Tmt. Umadevi, who is the petitioner in this case. There was a feud between Nachathal’s and Umadevi’s families. As a result, the petitioner no longer visits Nachathal’s home. As a result, they were unable to communicate with one another and expressed their displeasure with one another. Tmt. UmaDevi, despite residing in a neighbouring village about two kilometers away, has never visited or assisted her mother Nachathal. The claimed Nachathal was in a lot of mental pain and used to communicate to a woman named Eswari, who told her that she was disinherited in life and that her son and daughter had abandoned her. She told Eswari @ Rajeswari that she was going to commit suicide by self-immolation. So, here the single bench heading Honourable Justice M. Nirmal Kumar dismissed the petition stating that furthermore, the petitioner’s concerns about the investigation are baseless. The inquiry in this case appears to be going in the right way. Already, 55 witnesses have been interviewed, a forensic report has been acquired, and a postmortem doctor’s opinion has been obtained. CDR data has been collected and validated. A forensic report from the Regional Forensic Laboratory in Chennai is also required. The records will be scrutinized in their entirety, and a second view will be sought. It can be noticed that a significant chunk of the investigation has progressed. The allegations leveled against the Mulanur Police Station Investigating Officer and the CBCID Investigating Officer are unsupported by evidence. As a result, the above petitions are unlikely to be heard by this Court. The petitioner’s assertion that she and her girls were intimidated by someone is just that: an allegation. The petitioner has made no specific references to anyone or offered any information. There is likewise no concrete justification presented for doubting the forensic report. It is impossible to entertain mere apprehension in the absence of evidence.

Crl.O.P.Nos.17958 & 181121 and W.P.No.209721IN THE HIGH COURT OF JUDICATURE AT MADRASRESERVED ON : 29.11.2021PRONOUNCED ON : 23.12.2021CORAMTHE HONOURABLE MR.JUSTICE M.NIRMAL KUMARCrl.O.P.Nos.17958 & 181121andW.P.No.2097211.Uma ... first Petitioner in Crl.O.P.Nos.17958 181121 & W.P.No.20976 20212.K.Jeevitha ... second Petitioner in Crl.O.P.No.17958 2021 Versus1.The Superintendent of Police CBCID Chennai.2.The Investigating Officer Crime Branch CID South Tiruppur. ... Respondents in Crl.O.P.No.17958 20211.The Superintendent of Police Tiruppur District Tiruppur. 1 30 https: www.mhc.tn.gov.in judis Crl.O.P.Nos.17958 & 181121 and W.P.No.2097212.The Inspector of Police Moolanur Police Station Tirupur District.3.Kothukara Kanagaraj4.Sivakumar5.Pillakal Thootam Shanmugam6.Maniyathal7.Muthulakshmi8.Karasakattu Chellamuthu9.Kumar ... Respondents in Crl.O.P.No.18113 20211.Union of India Secretary Secretary Ministry of Home Affairs Shastri Bhavan New Delhi Delhi.2.Central Bureau of Investigation Director CGO Complex Lodhi Road New Delhi Delhi.3.The Director General of Police CB CID Chennai.2 30 https: www.mhc.tn.gov.in judis Crl.O.P.Nos.17958 & 181121 and W.P.No.2097214.The Investigating Officer Crime Branch CID South Tiruppur. ...Respondents in W.P.No.20976 2021PRAYER in Crl.O.P.No.17958 2021: Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure to direct the Regional Forensic Laboratory Coimbatore to preserve the Viscera sample of the deceased Nachathal sent in connection with Crime No.621 on the file of the third respondent herein transferred and renumbered as Crime No.21 on the file of the second respondent herein till such time as prescribed by this Court. PRAYER in Crl.O.P.No.18113 2021: Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure to direct the second respondent herein to provide necessary Police protection to the petitioner and her family members pursuant to the representation dated 23.06.2021 given to the first respondent. PRAYER in W.P.No.20976 2021: Writ Petition is filed under Article 226 of the Constitution of India to issue a Writ of Mandamus directing the first 3 30 https: www.mhc.tn.gov.in judis Crl.O.P.Nos.17958 & 181121 and W.P.No.209721respondent herein to withdraw the investigation in Crime No.21 on the file of the fourth respondent and transfer the same to the file of the second respondent herein and conduct the investigate in accordance with law. For Petitionersin all Crl.O.Ps.& W.P.:Mrs.K.Umaand Ms.Sathya visited the office of CBCID met SP Mr.Rohit. During discussion with Mr.Rohith she informed that the present case to be registered as murder case and must be investigated by CBCID team. Mr.Tiruvanandam Inspector of Mulanur Police Station declared the death of Nachathal as suicide due to the influence of the Village President and 11 30 https: www.mhc.tn.gov.in judis Crl.O.P.Nos.17958 & 181121 and W.P.No.209721Councillor and a case has been registered under Section 174 of Cr.P.C. There are strong circumstantial evidence to confirm that her mother was murdered. The CBCID SP Mr.Rohith informed that the forensic and circumstantial evidence prove beyond reasonable doubt that the death of her mother was a murder. Despite the same no action was taken FIR not altered and due to the delay the main accused escaped. The accused are still residing in the same Village. 11. On 12.08.2021 Mr.Rohith refused to meet petitioner. Thereafter several requests were sent to DGP CBCID. Mr.Rohith informed her that if they raise questions regarding the investigation CBCID team will turn against them. The petitioner was shocked and appalled as it is her duty to follow up the case to know the truth. She further submitted that on the night of 16.08.2021 one Mrs.Radha contacted the petitioner s daughters Ms.Jeevithaand Ms.Sathya through phone and informed that she is the new CBCID Investigating Officer and she has re registered the First Information Report vide Crime No.21. She further submitted that the petitioner s daughter Sathya immediately asked Mrs.Radha that despite CBCID SP Mr.Rohith confirmed that the case was received to CBCID team as 12 30 https: www.mhc.tn.gov.in judis Crl.O.P.Nos.17958 & 181121 and W.P.No.209721 Murder why the FIR was not registered under Section 302 of IPC for which there was no proper reply from Mrs.Radha. She further submitted that the forensic report clearly indicates that the death of her mother is a murder and hence the correct provisions of law ought to be stated in the FIR. She further submitted that despite requesting Mrs.Radha to state the correct provisions of law in the FIR she turned deaf to their requests. She further submitted that she had sent representation to the Governor and Home Secretary of Tamil Nadu requesting them to stop the CBCID investigation with immediate effect since the First Information Report lodged does not include correct provisions of law and also requested the Hon ble Governor and Home Secretary of Tamil Nadu to take possession and look into the CCTV footage and the conversation between the petitioner her daughters with Mr.Rohith on 04.08.2021 at CBCID office and the CBCID officer Mr.Rohith admitting the death of Nachathal as murder. On 16.09.2021 the petitioner s daughters enquired with the Regional Forensic Team with regard to despatch of forensic report. It was informed that the report was dispatched on 09.09.2021. However Mr.Rohith as early as on 04.08.2021 informed that the forensic report analysis have confirmed her mother s death as murder and forensic report indicates that her mother was murdered. Since there is a disparity she suspects that there is every possibility 13 30 https: www.mhc.tn.gov.in judis Crl.O.P.Nos.17958 & 181121 and W.P.No.209721of tampering of evidences and the reports. Further in the forensic report it is mentioned that no poison was found in the viscera report.12. The Sub Inspector of Police Mr.Nagarajan Head Constable Mr.Boopathy and CBCID SP Mr.Rohith had confirmed that her mother was murdered but the First Information Report is yet to be altered to Section 302 of IPC and the case is completely proceeded on a misdirected direction with false information and witnesses statement were recorded accordingly as seen in the status report. She further submitted that she decided to submit some confidential information with evidence about Nachathal s murder to the “Hon ble President of India” “Chief Justice of India” & some key Authorities in the Central Government to bring out the truth behind her mother s suspicious death. She further stated that in the year 2015 due to the physical assault inflicted upon the petitioner by the accused the petitioner had lodged a complaint to the Mulanur Police Station CSR assigned but no action taken. However the petitioner and her daughters will appear before the CBI enquiry and disclose all the facts. Hence she sought for transfer of investigation. Since the CBCID not conducted proper investigation they are ready to appear before CBI to disclose the true facts hence sought transfer of investigation.14 30 https: www.mhc.tn.gov.in judis Crl.O.P.Nos.17958 & 181121 and W.P.No.20972113. The fourth respondent in W.P.No.209721 The Investigating Officer Crime Branch CID South Tirupur filed a counter and status report narrating the events from registration of the case on the complaint of one Chellamuthu by the Mulanur Police Station registered as Crime No.621 under Section 174 of Cr.P.Cfor suspicious death and submitted the CD file to the then Inspector of Police Tr.Thiruvanantham Mulanur Police Station for further investigation. The Sub Inspector of Police sent requisition to the Medical Officer Government Hospital Dharapuram to conduct postmortem on the dead body of Nachathal.14. He further submitted that on 19.02.2021 Tr.Thiruvanantham the Inspector of Police took up investigation of this case examined relevant witnesses and recorded their statements. On 23.02.2021 the viscera organs of the deceased Nachathal were collected and the same were sent to Regional Forensic Science Laboratory Coimbatore. On 02.03.2021 the Inspector of Police summoned the petitioner herein viz. Uma Devi and her daughters 16 30 https: www.mhc.tn.gov.in judis Crl.O.P.Nos.17958 & 181121 and W.P.No.209721namely Sathya and Jeevitha to appear before the Investigation Officer on 03.03.2021. On 04.03.2021 the petitioner appeared before the Investigation Officer and presented a petition raising questions and suspicion over the death of Nachathal. On 09.03.2021 the Inspector of Police Mulanur sent a letter to Thasildar Dharapuram to transfer all the documents relevant to this case to Judicial Magistrate Dharapuram. As per the request the documents and materials were transferred and produced before the Judicial Magistrate Court Dharapuram. On 15.03.2021 the petitioner herein filed a Writ Petition in W.P.No.72221 before this Court seeking transfer of investigation of this case to Crime Branch CID. In the meanwhile she presented a petition to the Director General of Police Head of Police Force requesting to transfer the investigation of this case to the State Crime Branch CID. As per R.C.No.6413 Crime 2(2) 2021 dated 27.07.2021 the case was transferred. As per the orders of the Director General of Police Head of Police Force The Director General of Police Crime Branch CID directed the fourth respondent to conduct further investigation vide C.No.Crime I(2) 361 10629 2021 dated 03.08.2021. The case was registered in Tiruppur Crime Branch CID Crime No.021 under Section 174 of Cr.P.C.dated 16.08.2021. Thereafter the fourth respondent took the investigation in this case collected 17 30 https: www.mhc.tn.gov.in judis Crl.O.P.Nos.17958 & 181121 and W.P.No.209721all the relevant documents from the previous Investigating Officer. The fourth respondent perused the CD file and thereafter proceeded to the spot prepared observation mahazar rough sketch and seizure mahazar from the scene of occurrence on 18.08.2021. He visited the scene of crime with the help of scientific officer Finger print expert Police photographer and recovered 1) Swab of smearable smoke deposit from the wooden bench 2) melted substance from the wooden bench 3) torn piece of green cloth collected with the help of scientific officer. CBCID sent a request letter to the mobile network service provider requesting them to provide CDR tower location etc. for the suspected numbers provided by the petitioner herein. The seized materials from the scene of crime were produced before the Chief Judicial Magistrate Court Tiruppur and recorded as CP.No.08 2021 and CP.No.021. The seized materials were forwarded to Tamil Nadu Forensic Science Laboratory Chennai for chemical analysis. The fourth respondent sofar examined 53 witnesses recorded their 161(3) Cr.P.C. statements and interrogated the suspected persons identified by the petitioner. He further submits that he summoned the petitioner over phone on 17.08.2021 19.08.2021 and 23.08.2021 but the petitioner failed to attend the call her daughters conveyed a message to the fourth respondent that they will not attend the enquiry till the 18 30 https: www.mhc.tn.gov.in judis Crl.O.P.Nos.17958 & 181121 and W.P.No.209721case is altered to Section 302 of IPC. Since they failed to appear and co operate with the investigation summon was affixed on the address of the petitioner at Karupparayanpudur on 24.08.2021 and a copy of summon was sent through registered post on 15.09.2021 and also sent a summon to her daughter s email address on 18.09.2021. Even after receipt of the summons the petitioner failed to appear for enquire and co operate with the investigation. 15. Further during the investigation the following facts came to light. The deceased Nachathal was aged about 80 years and she was living alone in a small house at Ayegoundanpalayam Village. She had two children one Tr.Chellamuthu and another is Tmt.Umadevi petitioner herein. During the year 2010 when Nachathal s husband Thirumalaisamy Gounder was alive he had given in lease of his land to Chandrasekar who had enmity with Kathirvel the husband of the petitioner herein. This created dispute between Nachathal s family and Umadevi s family. Due to which the petitioner stopped to visit Nachathal s house. During the year 2011 Nachathal s husband Thirumalaisamy passed away. At that time neither Kathirvel nor Umadevi attended the funeral. Likewise during the year 2014 Kathirvel the petitioner s husband passed away. At that time Nachathal and her son Chellamuthu has 19 30 https: www.mhc.tn.gov.in judis Crl.O.P.Nos.17958 & 181121 and W.P.No.209721not attended the funeral. Thus they were not in talking terms and had displeasure towards each other. In these circumstances Nachathal was living alone at Ayegoundanpalayam Village she was paid Rs.1 000 per month by her son Chellamuthu. The petitioner herein Tmt.UmaDevi eventhough living in the nearby Village within two kilometers has never visited and helped her mother Nachathal. Her son Chellamuthu is settled in Coimbatore and he is doing money lending business at Coimbatore which is situated nearly 120 Kilometers away from Nachathal residence at Ayengoundanpalayam. Tmt.Nachathal used to purchase ration materials like rice sugar kerosene etc. from the ration shop at Ayengoundanpalayam with the money given by her son Chellamuthu. The said Nachathal had high level of mental agony and used to talk to one Eswari @ Rajeswari who informed that she was disinherit in life and complained that she was left alone by her son and daughter. She was suffering health ailments and unable to intake food and water. She informed to Eswari @ Rajeswari that she will commit suicide by self immolation. She also requested Eswari @ Rajeswari to place a piece of cloth on her dead body after her death to cover her body since her dress would be burnt. Nachathal was suffering from both mental and physical loneliness and was in a depressed state. In such a situation on 12.02.2021 she suffered from headache throat 20 30 https: www.mhc.tn.gov.in judis Crl.O.P.Nos.17958 & 181121 and W.P.No.209721pain difficulty in swallowing and unable to take food and water for which she took treatment at NG Hospital Coimbatore. The medical treatment was given by her son. The treatment particulars reveal that she was suffering from severe anemia under evaluation dysphagia ulcer problem and she also had mental depression. On 14.02.2021 she was discharged from NG Hospital Coimbatore and returned to her native place through car which was arranged by her son Chellamuthu. It was ascertained that the medical bill at NG Hospital Coimbatore was paid by her son Chellamuthu. On the same day the said Nachathal again fell ill and asked one Rani to arrange to talk to her grand daughter Sathya. Accordingly Rani contacted Sathya and conveyed the message that her grandmother Nachathal was not well and she wants to meet Sathya. At that time Sathya informed Rani to make arrangements for admitting Nachathal to a nearby Hospital. Sathya also sent Rs.2500 through Google Pay to Tr.Naveen S o.Rani for the medical expenses. The said Nachathal was admitted in Prakash Hospital Chinna Dharapuram on 14.02.2021 and got discharged on 17.02.2021. One Rani neighbour of Nachathal house saw her sitting in front of her house on that day. Subsequently around 15.30 hrs one Deivanai another neighbour of Nachathal found smoke coming from Nachathal s house. Immediately Dheivanai shouted 21 30 https: www.mhc.tn.gov.in judis Crl.O.P.Nos.17958 & 181121 and W.P.No.209721for help and informed Meenakshi. They found that the front door of Nachathal s house was opened and they saw Nachathal in flame and smoke lying on the floor in the hall. Subsequently Pooranam Ranganayagi Kothukara Kanagaraj Eswari and other Villagers came there put off the fire and then informed to her son Chellamuthu. Subsequently the information was passed to Mulanur Police Station Police Personnel of Mulanur Police Station came to the spot removed the dead body to the Government Hospital Dharapuram with the help of Villagers and relatives of Nachathal. Before removal of dead body from the scene of occurrence the petitioner herein Umadevi and her daughter Jeevitha came to the spot in the evening. They had not entered the house and shown no inclination to see Nachathal body. Even after the request of local Police Umadevi and her daughter Jeevitha refused to see the dead body of Nachathal. After that around 9.30 p.m. Nachathal s son Chellamuthu visited the Mulanur Police Station and gave the complaint and on receipt of the same a case registered and further process commenced.16. The fourth respondent examined Dr.Chokkalingam who conducted autopsy over the dead body of Nachathal. Viscera report obtained from the Regional Forensic Science Laboratory Coimbatore confirms that no 22 30 https: www.mhc.tn.gov.in judis Crl.O.P.Nos.17958 & 181121 and W.P.No.209721poison was detected in the viscera organs collected from the dead body of Nachathal. Dr.Chokkalingam had stated that he noticed burn injuries on the dead body of Nachathal which was Anti mortem in nature. He has also found suit carbon particulars were found on the trachea of the deceased and no other injuries were found on the dead body. Dr.Chokkalingam opined that the deceased appear to have died of shock due to burn injury. On the complaint of the petitioner CDR of the suspected persons were analysed nothing incriminating found. The materials collected by the CBCID from the scene of crime were sent to the Tamil Nadu Forensic Science Laboratory Chennai for chemical analysis. The report is yet to be received and the second opinion will be obtained from HOD Forensic Department Coimbatore with regard to cause of death of Nachathal. 17. Investigation is proceeding in the right direction. The persons who are suspected by the petitioners were examined and verified. The investigation is in progress. As on date the petitioner s suspicion seems to be without any materials. During investigation if any material is collected appropriate action will be taken. The petitioner has been making bald allegations initially against Mulanur Police later against the CBCID SP and 23 30 https: www.mhc.tn.gov.in judis Crl.O.P.Nos.17958 & 181121 and W.P.No.209721against the Investigating Officer. The Investigating Officer has nothing against the petitioner and the investigating has been properly conducted. The petitioner without any material made bald allegations. Hence he prayed for dismissal of the petitions. The petitioner seeks police protection without naming any particular person or giving valid reasons. If any complaint is received by naming persons with tangible materials appropriate action would be taken and police protection will be given.18. This Court considered the rival submissions and perused the materials. It is seen that the deceased Nachathal had a son and a daughter who are the defacto complainant and the petitioner in this case. The deceased Nachathal was aged about 80 years she was living alone in a small house in Ayengoundanpalayam she felt deserted. In the year 2010 Nachathal s husband Tirumalaisamy the father of the petitioner and the defacto complainant gave lease of his land to Chandrasekar. The said Chandrasekar had enmity with Kathirvel the husband of the petitioner due to which dispute and displeasure arose between the petitioner and her mother s family. In the year 2011 Nachathal s husband Thirumalaisamy father of the petitioner passed away. The petitioner and her husband Kathirvel did not participated in 24 30 https: www.mhc.tn.gov.in judis Crl.O.P.Nos.17958 & 181121 and W.P.No.209721the funeral and other rituals. Likewise on the death of the petitioner s husband Kathirvel neither Nachathal nor Chellamuthu participated in the funeral and other rituals. Such was the animosity between them. The petitioner s brother Chellamuthu is residing in Coimbatore along with his family. He took care of his mother by providing monetary support. When Nachathal was suffering from ill health on 12.02.2021 she was admitted in NG Hospital Coimbatore. Later she got discharged on 14.02.2021 and she returned back home by a Car arranged by Chellamuthu. After Nachathal reached home she again suffered health ailments and she was unable to take food and water. Thereafter she got admitted in Chinna Dharapuram Prakash Hospital. On 17.02.2021 at about 15.00 hrs one Rani a neighbour saw Nachathal sitting in front of her house. She was in a depressed mood her son residing in Coimbatore 120 kilometres far away and her daughter though only 2 kilometres away failed to visit their mother for years together. Later another neighbour Meenakshi saw the front door of Nachathal house was opened flame and smoke coming from inside. Raising alarm she visited the house with other villagers found Nachthal body burnt lying on the floor. The petitioner on coming to know about the death of her mother though came to the scene of occurrence refused to enter the house to see the condition of her mother. However she suspected that it was a 25 30 https: www.mhc.tn.gov.in judis Crl.O.P.Nos.17958 & 181121 and W.P.No.209721murder for the reason there is no burn injuries on the back side of the body. The Forensic Doctor opined that there is no poison or any substance found in the viscera. The Post mortem doctor in his report opined that the cause of death of the deceased was due to burn injury which was anti mortem in nature. The petitioner made allegations against the Investigation Officer of Mulanur Police Station for not taking her complaint and not registering a case of murder but there is no material to show that the petitioner had given any complaint then. It is normal that such death are registered under Section 174 of Cr.P.C. Only during investigation if materials found Section will be altered. Chellamuthu son of Nachathal had given a complaint and a case under Section 174 Cr.P.C. was registered. There is nothing wrong in it. Nothing to infer any malice.19. The other allegation of the petitioner that the CBCID Police registered the case in Crime No.021 under Section 174 of Cr.P.C. which is reproduction of contents in Crime No.621 registered by the Mulanur Police Station instead of registering a case under Section 302 IPC as it is a case of murder registering the case under Section 174 Cr.P.C. is not proper. On the direction of the DGP of Police the case has been registered vide 26 30 https: www.mhc.tn.gov.in judis Crl.O.P.Nos.17958 & 181121 and W.P.No.209721C.No.Crime I(2) 361 10629 2021 dated 03.08.2021. While transferring a case from one investigation agency to another the earlier contents of the FIR would be re registered and thereafter during the investigation if any materials are found the same would be added later by way of alteration report. The apprehension of the petitioner that the SP of Police on 04.08.2021 informed that it is a case of murder and and the forensic report may be tampered these are bald allegations without any material. The Forensic report post mortem report given by the Government authorities. They are responsible officials no motive to be attributed against them without any materials.20. One other allegation of the petitioner is that in the year 2015 due to family dispute the petitioner was threatened by one Velusamy Vadivel Maniyathall and Balakrishnan for which CSR.No.1715 was assigned. They have nothing to do with the present case. The persons who are named in the said CSR are attempted to be linked in this case which cannot be accepted.21. The seized articles from the scene of occurrence were sent to the forensic expert through the Court. The petitioner participated in the 27 30 https: www.mhc.tn.gov.in judis Crl.O.P.Nos.17958 & 181121 and W.P.No.209721inquest raised no objection. The other allegation that the Farmhouse lock was broken foot print found and some movement were noticed is no way connected with the investigation of this case. Further doubts raised by the petitioner about investigation is without reason. It is seen that investigation in this case is proceeding in the right direction. Already 55 witnesses examined forensic report received opinion of the post mortem Doctor obtained CDR details collected and verified. Further one more forensic report from the Regional Forensic Laboratory Chennai to be obtained. It is submitted that the entire records would be scrutinised and second opinion will be obtained. It is seen that substantial portion of investigation progressed. The allegation made against the Investigating Officer of Mulanur Police Station and CBCID Investigating Officer are without any materials. 22. In view of the same this Court is not inclined to entertain the above petitions. The complaint of the petitioner that she and her daughters were threatened by someone is only an allegation without materials.The petitioner has not mentioned any named person and provided any particulars. It is also seen that no tangible reason is given for doubting forensic report. Mere apprehension without materials cannot be entertained. Further the 28 30 https: www.mhc.tn.gov.in judis Crl.O.P.Nos.17958 & 181121 and W.P.No.209721premier agency of the State viz. CBCID is conducting the investigation which is proceeding in the right direction. In view of the same the fourth respondent shall continue the investigation and file a final report in this case without delay with due intimation to the petitioner.23. Hence all the petitions in Crl.O.P.Nos.17958 & 181121 and W.P.No.209721 are dismissed. 23.12.2021Index: Yes NoInternet: Yes NodnaNote: Issue Order Copy on 23.12.2021.To1.The Director General of Police CB CID Chennai.2.The Superintendent of Police CBCID Chennai.3.The Superintendent of Police Tiruppur District Tiruppur. 29 30 https: www.mhc.tn.gov.in judis Crl.O.P.Nos.17958 & 181121 and W.P.No.209721M.NIRMAL KUMAR.J. dna4.The Investigating Officer Crime Branch CID South Tiruppur. 5.The Inspector of Police Moolanur Police Station Tiruppur District6.The Inspector of Police Mooanur Police Station Tirupur District.7.Union of India Secretary Secretary Ministry of Home Affairs Shastri Bhavan New Delhi Delhi.8.The Central Bureau of Investigation Director CGO Complex Lodhi Road New Delhi Delhi.9.The Investigating Officer Crime Branch CID South Tiruppur. 10.The Public Prosecutor High Court Madras.PRE DELIVERY ORDER INCrl.O.P.Nos.17958 & 181121andW.P.No.20972130 30

Inherent jurisdiction of the High Court cannot be invoked to override bar of review under S.362 Cr.P.C: High Court of New Delhi

The purpose of S.362 Cr.P.C is that once a Court delivers the judgment that Court becomes functus officio and thereafter it cannot reconsider or modify the judgment. Application under S.482 cannot be used to short-circuit other proceedings which are subsisting between the parties. This was held in SOMBIR DAGAR & ORS v. THE STATE GOVT OF NCT OF DELHI AND SOMBIR DAGAR v. THE STATE GOVT OF NCT OF DELHI [CRL.M.C. 314/2015 & CRL.M.C. 315/2015] in the High Court of New Delhi by single judge bench consisting of JUSTICE SUBRAMONIUM PRASAD. Facts are that due to matrimonial disputes between the petitioner and the respondent F.I.Rs were registered for offenses under Sections 498A, 406, 34 IPC. Parties entered compromise and Court by an order quashed the two FIRs with recourse to law. Applications have been filed for recalling the prior order on the ground the compromise had been obtained by the petitioners by giving false assurances to the Court. The counsel for the applicant stated the petitioner has beaten, humiliated and thrown out the petitioner and argued that the sole purpose of compromise was to get the FIRs quashed by fraud. He placed reliance on Sanjeev Kapoor v. Chandana Kapoor to support that the case fell under exceptions to embargo u/s 362 Cr.P.C. The court referred to the Apex court judgment in the case of  Nazma v. Javed, where in it was held that, “The practice of filing miscellaneous petitions after the disposal of the main case and issuance of fresh directions in such miscellaneous petitions by the High Court are unwarranted, not referable to any statutory provision and in substance the abuse of the process of the court.” The court relied on the judgement of Simrikhia v. Dolley Mukherjee, where the Apex Court had discussed the scope of Sections 482, wherein the following observations were made, “The inherent jurisdiction of the High Court cannot be invoked to override bar of review under Section 362. It is clearly stated in Sooraj Devi v. Pyare Lal [(1981) 1 SCC 500 : 1981 SCC (Cri) 188], that the inherent power of the court cannot be exercised for doing that which is specifically prohibited by the Code. The law is therefore clear that the inherent power cannot be exercised for doing that which cannot be done on account of the bar under other provisions of the Code. The court is not empowered to review its own decision under the purported exercise of inherent power.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 05th April 2021 IN THE MATTER OF: CRL.M.C. 314 2015 SOMBIR DAGAR & ORS ..... Petitioners Through None THE STATE& ANR..... Respondents Through Ms. Meenakshi Chauhan APP for the Mr. Vipul Goel Advocate respondent No.2 Applicant. CRL.M.C. 315 2015 SOMBIR DAGAR ..... Petitioner Through None THE STATE& ANR..... Respondents Through Ms. Meenakshi Chauhan APP for the Mr. Vipul Goel Advocate respondent No.2 Applicant. HON BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD J. CRL.M.A.705 2021in CRL.M.C. 314 2015 CRL.M.A.678 2021in CRL.M.C. 315 2015 These applications have been filed for recalling of order dated CRL.M.C. 314 2015 and others 28.01.2015 passed in CRL.M.C. 314 2015 and CRL.M.C 315 2015. CRL.M.C. 314 2015 is directed against F.I.R. No. 412 14 registered at Police Station Vasant Vihar New Delhi for offences under Sections 498A 406 34 IPC. CRL.M.C. 315 is directed against F.I.R. No. 601 14 registered at Police Station Saket New Delhi for offences under Sections 323 328 506 These petitions arise out of the matrimonial disputes between the petitioner No.1 and the respondent No.2. The marriage of the petitioner No.1 and the respondent No. 2 was solemnized according to Hindu Rites Customs and ceremonies at Katwaria Sarai New Delhi on 30.04.2012 and a child was born on 23.09.2013. Disputes arose between the parties and F.I.R. No. 412 14 was registered at Police Station Vasant Vihar New Delhi for offences under Sections 498A 406 34 IPC. Matter was referred to mediation and a settlement was arrived at between the parties. Both the parties amicably resolved their mis understandings and decided to live together again as husband and wife. Noticing that the petitioner and the respondent are happily residing together since 27.08.2014 this Court by an order dated 28.01.2015 on the basis of the mediation settlement and after noticing the fact that the petitioners are living together quashed the two FIRs i.e. FIR No.412 2014 under Sections 498 A 406 34 of IPC registered at Police station Vasant Vihar Delhi and FIR No.601 2014 under Sections 323 328 506 of IPC registered at P.S. Saket New Delhiand petitioner No.3 Smt. Shakuntala started beating the applicant respondent No. 2 mercilessly. MLC was conducted and FIR No.0671 2019 dated 19.11.2019 under CRL.M.C. 314 2015 and others Sections 323 506 IPC was lodged at P.S. Sonipat City. The petitioner No. 1 was arrested on 19.11.2019. Thereafter petitioner No.3 and petitioner No.2 along with the petitioner s brother in laws namely Sh Jagbir and Sh. Tarun Thakran forced the parents of the applicant respondent No.2 to compromise once again in order to get bail for the petitioner. It is stated that on 29.02.2020 the applicant respondent No. 2 was once again beaten up by petitioner Nos.1 to 3. The applicant respondent No.2 filed a police complaint at Police Chowki Court Complex Sonipat. On 29.02.2020 petitioner No.1 was enlarged on bail petitioner Nos.2 & 3 forced the applicant respondent No.2 once again to compromise and live with the petitioner. As per the compromise it was agreed that the applicant respondent No.2 alongwith the petitioner No.1 and children would stay on the first Floor. It is stated that on 01.03.2020 the petitioners and other in laws alongwith some other persons abused and molested the applicant respondent No.2 tore her clothes in front of her children. It is stated that on 04.03 2020 the applicant respondent No.2 along with her children had come to her maternal house in Delhi for vacation. The petitioner No.3 filed a false police complaint bearing No.1046P1 dated 06.03.2020 against the applicant respondent No.2 and her parents at Crime Against Women Cell as petitioner No.2 is a Sub Inspector posted at Sonipat Haryana. The complaint was closed as all the allegations were found to be false. It is stated that on 11.03.2020 when the applicant respondent No.2 went back home at Sonipat she found that the petitioner No.3 had changed the locks and the applicant respondent No.2 had to return back to Delhi as she was not permitted to enter her residence. It that on 16.03.2020 the bail proceedings applicant respondent No.2 was informed by the learned Chief Judicial CRL.M.C. 314 2015 and others Magistrate Sonipat that in CRM M 54815 2019 which is pending before the High Court of Punjab & Haryana the High Court had directed the Trial Court to state whether the petitioner had filed a compromise deed for quashing of FIR No.0671 2019 dated 19.11.2019 under Sections 323 506 registered at Police Station Sonipat City and whether applicant respondent No.2 has voluntarily signed on the quashing as well as compromise Deed. The applicant found that the petitioner had without the consent of the applicant filed an application for quashing of FIR No.0671 2019 dated 19.11.2019 under Sections 323 506 IPC registered at Police Station Sonipat City before High Court of Punjab and Haryana. The applicant respondent No.2 informed the Chief Judicial Magistrate Sonipat that the petitioner had forcefully made her to write certain lines on a paper and made her sign on 4 5 blank papers which is now being misused before the High Court of Punjab & Haryana. is stated applicant respondent No.2 came to know that one Ms. Surabhi Kaushik Advocate had appeared and accepted notices on behalf of applicant respondent No.2 in the High Court of Punjab & Haryana. It is stated that the applicant respondent No.2 has never authorized anyone to appear on behalf of her before the High Court of Punjab & Haryana. She was not even aware of the quashing petition filed by the petitioner No.1. It is stated that the petitioner and his father are constantly threatening the applicant. It is stated that on 02.06.2020 at around 06.30 P:M. six police officials from Women Cell Sonipat City came to the applicant respondent No.2 s house and forcefully took the applicant respondent No.2 into custody and gave the custody of two minor children who are aged 6.5 years and 5 years respectively to the petitioner No.1. It is stated that at around 10:00 CRL.M.C. 314 2015 and others PM the applicant respondent No. 2 was asked to leave the Women Cell on her own. It is stated that when the applicant respondent No.2 refused to leave the police officials arrested her and an FIR being FIR No.310 2020 was lodged against her at Police Station Sonipat City. On 03.06.2020 the applicant respondent No.2 was enlarged on bail and all her jewellery and cash has been taken over by the petitioner. The applicant respondent No.2 s father emailed a complaint to the Hon ble the Chief Justice of High Court of Punjab & Haryana on which a suo motu cognizance has been taken by the High Court of Punjab & Haryana and a writ of Habeas Corpus was registered vide CRWP 3813 2020. In these circumstances the applicant has filed the present applications on the ground that the order dated 28.01.2015 was obtained on false 8. Mr. Vipul Goel learned counsel for the applicant states that the applicant respondent No.2 has been taken for ride. He would state that since the FIRs were quashed the respondent No.2 has been beaten humiliated and thrown out of her house. He would state that the petitioners have committed a fraud on the respondent No.2 and this Court by stating that all the disputes have been resolved. It is argued that the sole purpose of compromise was to get the FIRs quashed. The short question which arises for consideration is whether the application is maintainable in view of the bar under Section 362 Cr.P.C. Section 362 Cr.P.C reads as under: “362. Court not to alter judgement. Save as otherwise provided by this Code or by any other law for the time being in force no Court when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or CRL.M.C. 314 2015 and others arithmetical error.” Learned counsel for the applicant places reliance on Sanjeev Kapoor v. Chandana Kapoor 13 SCC 172 wherein the Supreme Court while dealing with cases arising out of complaints made under Section 125 Cr.P.C observed as under: judgments of “19. The legislative scheme as delineated by Section 369 of the Code of Criminal Procedure 1898 as well as legislative scheme as delineated by Section 362 of the Code of Criminal Procedure 1973 is one and the same. The embargo put on the criminal court to alter or review its judgment is with a purpose and object. this Court as noted above summarised the law to the effect that criminal justice delivery system does not clothe criminal court with power to alter or review the judgment or final order disposing of the case except to correct the clerical or arithmetical error. After the judgment delivered by a criminal court or passing of the final order disposing of the case the court becomes functus officio and any mistake or glaring omission is left to be corrected only by appropriate forum in accordance with law. 22. We need to first examine as to whether the orders passed in the present case are covered by the exception i.e. “save as otherwise provided by the Code”. Section 362 CrPC thus although put an embargo on the criminal court to alter or review its judgment or final order disposing of exceptions as indicated therein. The legislature was aware that there are and may be the situations where altering or reviewing of criminal court judgment is contemplated in the Code itself or any other law for the time being in force. We since in the present case are concerned only with Section 125 CrPC we need to examine as to whether Section 125 CrPC in any the case but engrafted CRL.M.C. 314 2015 and others manner relaxed the rigour of Section 362 CrPC. 23. Before we proceed to look into the legislative scheme of Section 125 CrPC we need to notice few rules of interpretation of statutes when the court is concerned with the interpretation of a social justice legislation. Section 125 CrPC is a social justice legislation which orders for maintenance for wives children and parents. Maintenance of wives children and parents is a continuous obligation enforced ..” 10. Learned counsel for the applicant also places reliance on a decision of single Judge of Madras High Court in CRL.O.P. No.6231 2018 CRL.O.P. No.6232 2018 & CRL.O.P. No.6322 2018 titled as G. Sakthi Saravanan v. S. Arun wherein the Madras High Court while dealing with the powers of Section 362 Cr.P.C observed as under: “28. Crime against the State and general public should be viewed differently from the crime against the individual. In this case due to suppression of facts by the parties concerned this Court has been mislead to quash the criminal proceedings vide its order dated 01.03.2018. Therefore this Court recalls the order passed in Crl.O.P. Nos. 6231 6232 and 63215 as void and non est in the eye of law.” Learned counsel for the applicant also places reliance on the judgment of Kerala High Court in Sudheer Kumar @ Sudheer v. Manakkandi M.K. Kunhiraman & Anr. 2007 SCC OnLine Ker 147. 12. The learned counsel for the applicant also relies on the judgment of Supreme Court in S. Ramesh & Ors. v. State Rep. by Inspector of Police & Ors. CRIMINAL APPEAL No.585 2019 wherein the Supreme Court upheld the order of the High Court exercising its power under Section 482 CRL.M.C. 314 2015 and others Cr.P.C in reopening the final judgments. 13. The present application has been filed on the basis of events which have transpired subsequent to the orders dated 28.01.2015. The judgment of the Supreme Court in Sanjeev Kapoor v. Chandana Kapoordoes not apply to the facts of this case. That case arose in matrimonial proceedings arising under Section 125 Cr.P.C. An order under Section 125 Cr.P.C is not hit by Section 362 Cr.P.C for the reason that an order under Section 125 Cr.P.C fixing maintenance can be varied. The Supreme Court entertained the application on the ground that an order under Section 125 Cr.P.C is not a final order and that the Court after passing of the judgment or the final order in a proceeding under Section 125 Cr.P.C does not become functus officio. There is no discussion on Section 362 CrPC in S. Ramesh & Ors. v. State(supra) and cannot be relied on by the applicant. 14. A reading of Section 362 CrPC shows that it bars a Court from altering a judgment or final order except to correct a clerical or arithmetical error. Section 362 Cr.P.C itself provides the circumstances where petitions for review of orders which have attained finality can be entertained. Section 362 Cr.P.C begins with the words “Save as otherwise provided by this Code or by any other law for the time being in force”. The above expression shows that the rigor contained in Section 362 Cr.P.C can be relaxed only i. when it is provided by the Code itself permitted by any other law for the time in force There is a clerical or arithmetical error or CRL.M.C. 314 2015 and others 15. While dealing with the practice of entertaining miscellaneous petitions in criminal cases after disposal of main petition by the High Court while exercising jurisdiction under Section 226 227 or Section 482 Cr.P.C the Supreme Court in Nazma v. Javed 1 SCC 376 observed as “11. The practice of entertaining miscellaneous in disposed of writ petitions was deprecated by this Court in Hari Singh Mann1 SCC 169 : 2001 SCC 113] . Reference to the following paragraph of that judgment is apposite: SCC p. 173 para 8) the High Court wherein “8. We have noted with disgust impugned orders were passed completely ignoring the basic principles of criminal law. No review of an order is contemplated under the Code of Criminal Procedure. After the disposal of the main petition on 7 1 1999 there was no lis respondent could have filed any miscellaneous petition. The filing of a miscellaneous petition not referable to any provision of the Code of Criminal Procedure or the rules of the court cannot be resorted to as a substitute of fresh litigation. The the proceedings record of produced before us shows that directions in the apparently without notice respondents in the petition. Merely because Respondent 1 was an advocate did not justify the issuance of directions at his request without notice of the other side. The impugned orders dated 30 4 1999 and 21 7 1999 could not have been passed by the High Court under its inherent power under Section 482 of the Code of Criminal Procedure. The practice of filing miscellaneous the respondents were to any of filed by CRL.M.C. 314 2015 and others petitions after the disposal of the main case and miscellaneous petitions by the High Court are unwarranted not referable to any statutory provision and in substance the abuse of the process of the court.” We are sorry to note that in spite of the clear pronouncement of law by this Court still the High Courts are passing similar orders which practice has to be deprecated in the strongest terms. Of late we notice that the High Courts are entertaining writ petitions under Articles 226 and 227 of Constitution so also under Section 482 CrPC and passing and interfering with various orders granting or rejecting request for bail which is the function of ordinary criminal court. The jurisdiction vested on the High Court under Articles 226 and 227 of the Constitution as well as Section 482 CrPC are all in most exceptional cases. The jurisdiction under Section 439 CrPC is also discretionary and it is required to be exercised with great care and caution.” in nature and to be used Even though the said judgment was pronounced while dealing with bail applications but the principle that was applied was regarding the power of the High Court to review its decisions and pass orders on matters which had In Sooraj Devi v. Pyare Lal 1 SCC 500 the Supreme Court attained finality. observed as under: “5. The appellant points out that he invoked the inherent power of the High Court saved by Section 482 of the Code and that notwithstanding the prohibition imposed by Section 362 the High Court CRL.M.C. 314 2015 and others The Supreme Court in Simrikhia v. Dolley Mukherjee 2 SCC 437 has observed as under: had power to grant relief. Now it is well settled that the inherent power of the court cannot be exercised for doing that which is specifically prohibited by the Code2 Cri LJ 288] ). It is true that the prohibition in Section 362 against the court altering or reviewing its judgment is subject to what is “otherwise provided by this Court or by any other law for the time being in force”. Those words however refer to those provisions only where the court has been expressly authorised by the Code or other law to alter or review its judgment. The inherent power of the court is not contemplated by the saving provision contained in Section 362 and therefore the attempt to invoke that power can be of no avail.” “3. The learned counsel for the appellant contended before us that the second application under Section 482 CrPC was not entertainable the exercise of power under Section 482 on a second application by the same party on the same ground virtually amounts to the review of the earlier order and is contrary to the spirit of Section 362 of the CrPC and the High Court was therefore clearly in error in having quashed the proceedings by adopting considerable force in the contention of the learned counsel. The inherent power under Section 482 is intended to prevent the abuse of the process of the court and to secure ends of justice. Such power cannot be exercised to do something which is expressly barred under the Code. If any consideration of the facts by way of review is not permissible under the Code and is expressly barred it is not for the court to exercise its inherent power to reconsider the matter and record a that course. We CRL.M.C. 314 2015 and others conflicting decision. If there had been change in the circumstances of the case it would be in order for the High Court to exercise its inherent powers in the prevailing circumstances and pass appropriate orders to secure the ends of justice or to prevent the abuse of the process of the court. Where there is no such changed circumstances and the decision has to be arrived at on the facts that existed as on the date of the earlier order the exercise of the power to reconsider the same materials to arrive at different conclusion is in effect a review which is expressly barred under Section 362. 5. Section 362 of the Code expressly provides that no court when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error save as otherwise provided by the Code. Section 482 enables the High Court to make such order as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice. The inherent powers however as much are controlled by principle and precedent as are its express powers by statute. If a matter is covered by an express letter of law the court cannot give a go by to the statutory provisions and instead evolve a new provision in the garb of inherent jurisdiction. 7. The inherent jurisdiction of the High Court cannot be invoked to override bar of review under Section 362. It is clearly stated in Sooraj Devi v. Pyare Lal 1981) 1 SCC 500 : 1981 SCC 188] that the inherent power of the court cannot be exercised for doing that which is specifically prohibited by the Code. The law is therefore clear that the inherent power cannot be exercised for doing that which cannot be done on account of the bar under other CRL.M.C. 314 2015 and others provisions of the Code. The court is not empowered to review its own decision under the purported exercise of inherent power. We find that the impugned order in this case is in effect one reviewing the earlier order on a reconsideration of the same materials. The High Court has grievously erred in doing so. Even on merits we do not find any compelling reasons to quash the proceedings at that stage.” 18. The purpose of Section 362 Cr.P.C is that once a Court delivers the judgment that Court becomes functus officio and thereafter it cannot reconsider or modify the judgment5 SCC 398). 19. By an order dated 28.01.2015 this Court had quashed the FIRs on the basis of a compromise. This Court had noted in the order that if the marriage of respondent No.2 with petitioner husband again runs into rough weather then the respondent No.2 herein can take appropriate recourse against him. A perusal of the facts narrated above would show that the applicant has taken appropriate steps and there are proceedings between the parties. The contention of the applicant that the compromise was only a ruse to get the proceedings quashed cannot be examined by this Court at this juncture. The instant proceedings arises out of matrimonial disputes. It is the word of the applicant against the word of the petitioner. No doubt the bar under Section 362 Cr.P.C cannot be used by a party if it has played fraud on the Court by producing false documents or when it has suppressed material facts which if had been disclosed the Court would never have used its power under Section 482 Cr.P.C to quash the proceedings on the basis of a compromise. The present case does not fall in any of the exceptions given in Section 362 CRL.M.C. 314 2015 and others her. Cr.P.C. The fact that the applicant is alleging that she has been subjected to cruelty post compromise has to be proved in the proceedings initiated by 20. The judgment of the Madras High Court in G.Sakthi Saravanan supra) will also not apply to the facts of this case because the High Court in that case found that there was suppression of facts because of which the High Court was misled in quashing the criminal proceedings. In the present case the allegations are that pursuant to the order dated 28.01.2015 the applicant has been treated with cruelty. The judgment of the Kerala High Court in Sudheer Kumarwould also not apply to the present case. In that case the question which arose was whether an offence under Section 138 of the Negotiable Instruments Act can be compounded after the confirmation of the conviction passed by the Magistrate Court by the appellate court and High Court in revision Whether an order passed by the High Court in the criminal revision petition confirming the conviction can be nullified by the High Court in a petition filed under Section 482 of Cr.P.C. noticing subsequent compromise of the case by the contesting parties 21. A perusal of the application would show that it is yet to be established as to whether cruelty has been committed by the petitioners against the respondent No.2. It cannot be said that the petitioner has misled the Court or suppressed facts when both the parties came before the High Court and pleaded that they have settled all their disputes and the proceedings against the petitioner be quashed. As stated above the present proceedings are pending between both the sides. This application cannot be used to short circuit other proceedings which are subsisting between the parties. In view CRL.M.C. 314 2015 and others of the bar under Section 362 Cr.P.C the applications are not maintainable and are accordingly dismissed. APRIL 05 2021 SUBRAMONIUM PRASAD J. CRL.M.C. 314 2015 and others

Refusing to condone the delay can result in a meritorious claim being thrown out at the threshold and cause justice to be defeated: Delhi High Court

The Employee Compensation Act is a beneficial legislation for the purposes of providing some respite to the family of the deceased who passes away in an accident at the working place. On a hyper technical view of delay in filing application for restoration a lawful claim should not be permitted to be defeated as upheld by the High Court of Delhi through the learned bench led by Justice Sanjeev Sachdeva in the case of Late Mohd Asif Through His Mother Legal Heir Shabnam v. Shahid Khan & Anr. (FAO 146/2020) Brief facts of the case are that Subject claim petition was filed by the appellant on account of the death of her son who was employed in the factory of the respondent No.1. As per the claim petition the son died on account of electrocution in the factory premises where it is alleged that there were open wires and unrepaired electricity connection in the factory. The claim petition was earlier allowed ex-parte in favour of the appellant and the respondent had filed an application seeking setting aside of the ex-parte order which was allowed on 21.08.2018 and thereafter the case was listed for written statements and framing of issues. It is on 12.09.2018 that the appellant failed to appear and the claim petition was dismissed in default. The order however, records that despite availing last opportunity claimant failed to appear and file counter submissions and the opportunity was closed. Appellant impugns order dated 19.06.2020 whereby the application of the appellant seeking restoration of the claim petition dismissed in default, has been rejected. After the perusal of facts and arguments, the Hon’ble Court held, “The explanation rendered by the appellant for non-appearance and not filing an application within time is a plausible one. In view of the above, the delay in filing the application for restoration is liable to be condoned. Accordingly, the impugned order dated 19.06.2020 is set aside. The Commissioner shall proceed with the claim petition and decide the same in accordance with law expeditiously. It is clarified that nothing stated herein shall amount to an expression of opinion on the merits of the claim of the appellant or the defence of the respondent. Appeal is disposed of in the above terms.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: 27.10.2021 FAO 146 2020 LATE MOHD ASIF THROUGH HIS MOTHER LEGAL HEIR SHABNAM Appellant SHAHID KHAN & ANR. Respondents Advocates who appeared in this case: Mr. Vijay Kinger AdvocateAppellant impugns order dated 19.06.2020 whereby the application of the appellant seeking restoration of the claim petition dismissed in default has been rejected. It is contended by learned counsel for the appellant that the appellant is the legal heir of the deceased and is not educated. He submits that she had entrusted the case to her advocate who did not appear when the matter was listed. He submits that the appellant herself had appeared on an earlier occasion and was under an impression that the review petition filed by the respondents had been dismissed and the matter was proceeding. FAO 146 2020 1 Digitally SignedBy:JUSTICE SANJEEVSACHDEVASigning Date:28.10.202108:46Digitally Signed By:KUNALMAGGUSigning Date:28.10.2021 22:43:52This file is digitally signed by PSto HMJ Sanjeev Sachdeva.Signature Not Verified He submits that she thereafter bonafidely filed an execution petition seeking execution of the award and when she came to know that her claim petition has been dismissed for non prosecution she filed the subject application for restoration. It is contended that she became aware of the dismissal of her claim petition only on 02.08.2019 and accordingly on 07.08.2019 subject application for restoration was immediately filed. It is contended by learned counsel for the respondent that there is no plausible explanation given by the appellant for not filing the restoration application within time. Perusal of the record shows that that the claimant had been appearing on all dates in person. On the said date i.e. 12.09.2018 the order records that none had appeared for the claimant and held that claimant was not interested in pursuing the matter and accordingly dismissed the claim petition in default. Subject claim petition was filed by the appellant on account of the death of her son who was employed in the factory of the respondent No.1. As per the claim petition the son died on account of electrocution in the factory premises where it is alleged that there were open wires and unrepaired electricity connection in the factory. Perusal of the order sheet shows that the claim petition was earlier allowed ex parte in favour of the appellant and the respondent had filed an application seeking setting aside of the ex parte order which was allowed on 21.08.2018 and 2018 and thereafter the case was listed on 12.09.2018 FAO 146 2020 2 Digitally SignedBy:JUSTICE SANJEEVSACHDEVASigning Date:28.10.202108:46Digitally Signed By:KUNALMAGGUSigning Date:28.10.2021 22:43:52This file is digitally signed by PSto HMJ Sanjeev Sachdeva.Signature Not Verified for written statements and framing of issues. It is on 12.09.2018 that the appellant failed to appear and the claim petition was dismissed in default. The order of 12.09.2018 however records that despite availing last opportunity claimant failed to appear and file counter submissions and the opportunity was closed. The order is clearly erroneous in as much as there was no response to be filed by the claimants on the said date. The counter submissions referred to in order dated 12.09.2018 pertain to the review application of the respondent No.1 which review application already stood allowed on 21.08.2018 so there was no question of appellant filing any further counter submission. Be that as it may it is observed that the claimant has filed the claim petition with regard to the death of her son which allegedly took place in the factory premises of the respondent. The Employee Compensation Act is a beneficial legislation for the purposes of providing some respite to the family of the deceased who passes away in an accident at the working place. On a hyper technical view of delay in filing application for restoration a lawful claim should not be permitted to be defeated. Reference may be had to the judgment of the Supreme Court in Manoharan vs. Sivarajan4 SCC 163 wherein the Supreme Court has held that refusing to condone the delay can result in a meritorious claim being thrown out at the threshold and cause justice to be defeated. The explanation rendered by the appellant for non appearance and FAO 146 2020 3 Digitally SignedBy:JUSTICE SANJEEVSACHDEVASigning Date:28.10.202108:46Digitally Signed By:KUNALMAGGUSigning Date:28.10.2021 22:43:52This file is digitally signed by PSto HMJ Sanjeev Sachdeva.Signature Not Verified not filing an application within time is a plausible one. In view of the above the delay in filing the application for restoration is liable to be 12. Accordingly the impugned order dated 19.06.2020 is set aside. The claim petition is restored to its original number on the record of the Commissioner. The Commissioner shall proceed with the claim petition and decide the same in accordance with law expeditiously. Parties shall appear before the concerned Commissioner for directions and further proceedings on 18.11.2021. It is clarified that nothing stated herein shall amount to an expression of opinion on the merits of the claim of the appellant or the defence of the 15. Appeal is disposed of in the above terms. SANJEEV SACHDEVA J. OCTOBER 27 2021 FAO 146 2020 4 Digitally SignedBy:JUSTICE SANJEEVSACHDEVASigning Date:28.10.202108:46Digitally Signed By:KUNALMAGGUSigning Date:28.10.2021 22:43:52This file is digitally signed by PSto HMJ Sanjeev Sachdeva.Signature Not Verified

Father granted visitation rights of the minor child on the day of Diwali in the interest of justice: The High Court of Bombay at Goa

The father of a child had sought the temporary custody of the child specifically on days of festivals like Dussehra, festivals and special occasions. The days set for visitation rights of the petition, the father in this case, sought for getting the rights to meet his biological child on the day of Diwali. The court without commenting on the rights of the rival parties over the temporal custody of the minor child sorted this matter in the interests of justice. The petitioner, Amey Dilip Sardessai has challenged the order dated 13/10/2021 passed by the Adhoc District Judge- I, FTC, Panaji whereby an application for grant of interim relief was filed on behalf of the petitioner has been dismissed. The High Court of Bombay at Goa in a single bench led by Hon’ble Justice Manish Pitale in the matter of Amey Dilip Sardessai v. Gayatri Amey Sardessai [W.P/2163/2021]. The facts of the case are related to the custody of the minor child and the court below was not inclined to grant the temporary custody of the child for the festival of Dussehra on 15th October 2021. Presently, the petitioner i.e., the father has been granted only visitation rights on every Sunday, Wednesday and Friday. The timing of the visiting rights was from 4.00 p.m. to 7.00 p.m. The respondent, Gayatri Amey Sardessai i.e., the mother of the minor child has appeared suo motu against denying the visiting rights for temporal custody on days of festivals like Diwali. Accordingly, since 4th November 2021, the day of Diwali happens to be a Thursday, which is not one of the days on which the petitioner is granted visitation rights. The High Court of Bombay at Goa directed “that the petitioner shall have visitation right of the minor child in the ancestral house of the respondent between 4.00 p.m. to 7.00 p.m. on 04/11/2021. The learned Counsel appearing for the respondent, on instructions, submits that the respondent has no objection to the said arrangement for the day of the festival of Diwali.” Accordingly, this writ petition is disposed of and the court directed that “the petitioner shall be extended visitation rights of the minor child on 04/11/2021 i.e. Thursday between 4.00 p.m. to 7.00 p.m. in the ancestral house of the respondent.” The court had not made any comments on the rights of the rival parties on the question of temporary custody of the minor child.

6 WP 2163 2021 F.DOC IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.2163 OF 2021 (Filing AMEY DILIP SARDESSAI Age 31 years S o. Shri Dilip B. Sardessai Married Service R o. House No.2 136 A24 Flat No.FA 405 Sinari Apartments Patto Ribandar Goa 403 006 GAYATRI AMEY SARDESSAI Age: 30 yrs D o. Sanjay Shivram Kamat Married Doctor R o. House No.580 1 5 “Kamaxi” Aradi Guirim Bardez Mapusa Goa 403 507 … Petitioner Mr. Asha A. Desai Advocate for the Petitioner Mr. S. Kamat Advocate for the Respondent CORAM: MANISH PITALE J 25th October 2021 By this Writ Petition the petitioner has challenged order dated 13 10 2021 passed by the Adhoc District Judge I FTC Panaji whereby an application for grant of interim relief filed on behalf of the petitioner has been dismissed 25th October 2021 6 WP 2163 2021 F.DOC By the said application the petitioner who is the father of the minor child sought temporary custody of the child particularly on days of festival like Dussehra festivals and special occasions. It appears that the Court below was not inclined to grant temporary custody of the child for the festival of Dussehra on By the time the Writ petition has come up for consideration the festival of Dussehra is over. Hence the petitioner is pressing for temporary custody of the child for the festival of Diwali which falls For the present the petitioner has been granted only visitation rights on every Sunday Wednesday and Friday. The timing of the visiting rights stood extended by one hour i.e. from 4.00p.m. to 7.00p.m. on the aforesaid days by an order dated 27 09 2021 passed by this Court in Writ Petition No.2121 The respondent i.e. the mother of the minor child has appeared suo motu and the learned Counsel appearing for the respondent has handed over an affidavit which is taken on record It is an admitted position that an appeal filed by the petitioner challenging an order rejecting grant of temporary custody is pending before the Court below and this Court by the aforesaid order dated 27 09 2021 has already directed that the appeal shall be disposed of within a period three months from the date of order 25th October 2021 6 WP 2163 2021 F.DOC Considering the aforesaid admitted facts and material on record this Court is inclined to dispose of the Writ Petition at this Since 04 11 2021 i.e. the day of Diwali happens to be a Thursday which is not one of the days on which the petitioner is granted visitation rights in the interest of justice it is directed that the petitioner shall have visitation right of the minor child in the ancestral house of the respondent between 4.00p.m. to 7.00p.m. on 04 11 2021. The learned Counsel appearing for the respondent on instructions submits that the respondent has no objection to the said arrangement for the day of festival of Diwali 10. Accordingly the Writ Petition is disposed of in the above terms and it is directed that the petitioner shall be extended visitation rights of the minor child on 04 11 2021 i.e. Thursday between 4.00p.m. to 7.00p.m. in the ancestral house of the the minor child 11. Needless to say this Court has not made any comments on the rights of the rival parties on the question of temporary custody of MANISH PITALE J 25th October 2021

The court can strike off scandalous pleadings that appear to be an abuse of the process of the court: High Court of Delhi

Order 7 Rule 11(d) CPC provides that the plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law. Order VI Rule 16 CPC permits the court, at any stage of the proceedings to strike out any matter in the pleading which may be unnecessary, scandalous, frivolous, vexatious or prejudicial or otherwise appears to be an abuse of the process of the court and the same was upheld by High Court of Delhi through the learned bench led by Justice Asha Menon in the case of DR. SANJIV BANSAL vs. DR. MANISH BANSAL [CS(OS) 649/2021] on 15.02.2022. The facts of the case are that the defendant instituted a suit impleading RG Scientific Enterprises Limited as defendant. The said suit was filed for perpetual injunction and declaration that the alleged Will and Testament, purportedly executed by Dr. Bhim Sen Bansal was not genuine and the same had been made in suspicious circumstances. The plaintiff herein claimed that his father, late Dr. B.S. Bansal had bequeathed his estate through a registered Will to him. Therefore, the question before Court was as to whether the sentences as pointed out in the plaint and stated to have been incorporated in the plaint filed by the defendant are defamatory and the supply of the copies of the plaint to a third party who is not a family member in a case filed by the defendant to determine inter se rights of the family members in respect of the estate of their late father would amount to publication and circulation. The plaintiff’s counsel submitted defendant was fully aware of the plaintiff having painstakingly built his reputation then also he made an unacceptable and false allegations in the plaint, knowing fully well that the plaint would also reach the hands of the management and employees of M/s RG Scientific Enterprises Limited and its recent investors. Thus, plaintiff had been defamed. It was further submitted that the suit was maintainable as the plaintiff was entitled to claim damages for injury to his reputation as the right to reputation is envisaged under Article 21 of the Constitution of India. The respondent’s counsel submitted that one of the reliefs sought by plaintiff is a direction to the defendant to withdraw the so called false and wrong allegations made in plaint. Such a prayer would be silencing the defendant in his suit and to ask the defendant to withdraw those pleas would amount to contempt of court. According to the facts and circumstances, the Court held that scandalous pleadings can be struck off by the court under Order VI Rule 16 of the CPC and therefore, the relief sought cannot be an act of contempt of court. The Court observed that “Order 7 Rule 11(d) CPC provides that the plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law. Order VI Rule 16 CPC permits the court, at any stage of the proceedings, to strike out any matter in the pleading which may be unnecessary, scandalous, frivolous, vexatious or prejudicial or otherwise appears to be an abuse of the process of the court.”

IN THE HIGH COURT OF DELHI AT NEW DELHI CS(OS) 649 2021 I.As. 16022 2021& 16023 2021 DR. SANJIV BANSAL …..Plaintiff Through: Mr. Manish Kaushik and Mr. Ajit DR. MANISH BANSAL Singh Joher Advs. Versus .….Defendant Through: Mr. Maneck Mulla Ms. Anuja Jhunjhunwala Mr. Priyank Kapadia Mr. Harsh Thadani Mr. Ghanshyam Joshi and Mr. Chirag Joshi Advs. HON BLE MS. JUSTICE ASHA MENON VIA VIDEO CONFERENCING] O R D E R 15.02.2022 The present order has been necessitated on account of the submissions made on behalf of the defendant that the suit was not maintainable under Order VII Rule 11(d) of the Code of Civil Procedure 1908649 2021 officers associates representatives attorneys and all acting for and on its behalf from writing circulating speaking publishing or making any demeaning remark material against the Plaintiff or engaging in any conduct which causes mental pain and agony to the Plaintiff Pass an order for damages of Rs.3 00 00 000 Rupees Three Crores Only) or such further amount as may be ascertained by this Hon ble Court for causing mental pain stress agony torture and cruelty to the Plaintiff Pass an Order directing withdraw the said ex facie demeaning derogatory false and wrong allegations made against the Plaintiff in CSNo.287 2021 the Defendant Pass a Decree for costs in the proceedings ” 3. Mr. Manish Kaushik learned counsel for the plaintiff submitted that the defendant had instituted a suit being CS(OS) No.287 2021 titled Dr. Manish Bansal Vs. Dr. Sanjiv Bansal & Ors. also impleading M s RG Scientific Enterprises Limited as defendant No.9. The said suit was filed for perpetual injunction and declaration that the alleged Will and Testament dated 29th December 2017 purportedly executed by Dr. Bhim Sen Bansal was not genuine and the same had been made in suspicious circumstances. The plaintiff herein claimed that his father late Dr. B.S. Bansal had bequeathed his estate through a registered Will dated 29th December 2017 to him. This was not acceptable to the defendant and so he instituted the suit for a share in his father‟s estate. 4. While doing so though he was fully aware of the plaintiff having painstakingly built his reputation he made unacceptable deliberately CS(OS) 649 2021 demeaning derogatory false wrong and scandalous allegations in the plaint knowing fully well that the plaint would also reach the hands of the management and employees of M s RG Scientific Enterprises Limited and its recent investors. Thus he had been defamed. Relying on the judgements in Ram Jethmalani v. Subramaniam Swamy 2006 SCC OnLine Del 14 Dhiro Koch and Ors. v. Gobinda Dev Mishra Bura Satria 65Ind. Cas.204 Auguda Ram Shaha v. Nemai Chand Shaha 12Ind. Dec. 576 and Rahim Bakhsh v. Bachcha Lal 1928 SCC OnLine All 246 the learned counsel submitted that there could be no absolute privilege to averments specially defamatory statements made in the pleadings. The learned counsel has further relied on several judgments of this court other High Courts as well as the Supreme Court in John Thomas v. K. Jagadeesan (2001) 6 SCC 30 and Rohini Singh v. State of Gujarat 2018 SCC OnLine Guj 10 Sanjay Mishra v. Govt. 2012 SCC OnLine Del 1779 Thangavelu Chettiar v. Ponnammal 1965 SCC OnLine Mad 248 Madhuri Mukund Chitnis v. Mukund Martand Chitnis 1990 SCC OnLine Bom 410 Prabhakaran v. Gangadharan 2006 SCC OnLine Ker 302 and Sushma Rani v. H.N. Nagaraja Rao 2020 SCC OnLine Kar 1913 to contend that pleadings in a court amount to publication and can be per se defamatory. It was submitted that the suit was maintainable as the plaintiff was entitled to claim damages for injury to his reputation as the right to reputation is envisaged under Article 21 of the Constitution of India. Reliance in this regard has been placed on the judgements of the Supreme Court in Om Prakash Chautala v. Kanwar Bhan 5 SCC 417 CS(OS) 649 2021 Subramanian Swamy v. Union of India 7 SCC 221 Kiran Bedi v. Committee of Inquiry 1 SCC 494 Mehmood Nayyar Azam v. State of Chhattisgarh 8 SCC 1 Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni and Ors. 1 SCC 124 Umesh Kumar v. State of Andhra Pradesh 10 SCC 591 and Vishwanath v. Sarla Vishwanath Agrawal7 SCC 288. It was also the submission of the learned counsel for the plaintiff that he had incorporated prayer No.(c) in view of the provisions of Order II Rule 2 of the CPC. Reliance was placed on the judgment of the Supreme Court in Coffee Board Vs. M s Ramesh Exports Pvt. Ltd.6 SCC 424 Deva Ram and Ors. v. Ishwar Chand and Ors. 6 SCC 733 and V. Kalyanaswamy v. L. Bakthavatsalam 2020 SCC OnLine SC 584. It was thus submitted that there was no reason to reject the present suit. It was the stand taken by Mr. Maneck Mulla learned counsel for the defendant that the entire purpose of the suit was to prevent the defendant from pursuing his suit. Since it was a pressure tactic it interfered with the course of justice and therefore was per se contemptuous. It was further submitted by learned counsel for the defendant that there was also no cause of action. It was submitted that one of the reliefs sought is a direction to the defendant to withdraw the so called false and wrong allegations made in CS(OS) No.287 2021. Such a prayer would be silencing the defendant in his suit. The learned counsel has relied on the judgments in T. Arivandandam v. T.V. Satyapal 4 SCC 467 Pearlite LinersLtd. v. Manorama Sirsi3 SCC 172 Rajendra Bajoria v. Hemant Kumar Jalan 2021 SCC OnLine SC 764 and Renu Khhullar v. Aaron 2018 SCC OnLine Del CS(OS) 649 2021 9115 in support of his contention that such a frivolous suit ought to be nipped in the bud and rejected at the threshold. The learned counsel submitted that only if the allegations were proved to be false they could tantamount to be defamatory as the pleas taken by the defendant in his suit reflecting on the conduct of the plaintiff are ex facie not defamatory. To ask the defendant to withdraw those pleas would amount to contempt of court. Thus the suit was barred by law and no summons ought to be issued. Reliance in this regard has been placed on the judgements in Pratap Singh v. Gurbaksh Singh 1962 SuppSCR 838 Govind Sahai v. State of U.P. 1969) 1 SCR 176 and Ch. Rajender Singh v. Uma Prasad 1934 SCC OnLine All 228. These submissions have been stoutly repelled by the learned counsel for the plaintiff pointing out that scandalous pleadings can be struck off by the court under Order VI Rule 16 of the CPC and therefore the relief sought cannot be an act of contempt of court. It was submitted that by accusing the plaintiff of plotting and being selfish and being responsible for the death of their brother in 1990 the unfounded and unsubstantiated allegations impacted the reputation of the plaintiff and being circulated to third parties and investors had caused much harm to the plaintiff including severe mental agony for which he was entitled to claim damages and therefore the suit was fully maintainable. The learned counsel has relied on the judgements in Organo Chemical Industries and Ors. Vs Union of India and Ors.4 SCC 573 Shobha Rani Vs Madhukar Reddi1 SCC 105 V. Bhagat Vs D. Bhagat 1 SCC 337 Spring Meadows Hospitals and Ors. Vs Harjol Ahluwalia through KS Ahluwalia and Ors. 4 SCC 39 CS(OS) 649 2021 Gananath Pattnaik Vs State of Orissa 2 SCC 619 Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate 6 SCC 334 Jose Phillip Mampillil Vs Premier Automobiles Ltd. and Ors. 2 SCC 278 Ghaziabad Development Authority Vs Balbir Singh5 SCC 65 A. Jayachandra Vs Aneel Kaur 2 SCC 22 Naveen Kohli v. Neelu Kohli4 SCC 558 Samar Ghosh Vs Jaya Ghosh4 SCC 511 K. Srinivas Rao Vs D.A. Deepa 5 SCC 226 Malathi Ravi v. B.V. Ravi7 SCC 640 Raj Talreja Vs Kavita Talreja14 SCC 194 Savitri Balchandani v. Mulchand Balchandani 1986 SCC OnLine Del 63 Rajani v. Subramonian 1988 SCC OnLine Ker 348 Boregowda v. C.D. Devaiah 1998 SCC OnLine Kar 466 Padma Joseph v. Rana Joseph 2014 SCC OnLine Ker 1706 Jayanti v. Rakesh Mediratta 2016 SCC OnLine Del 5760 Kirti Nagpal v. Rohit Girdhar 2020 SCC OnLine Del 1466 Thalraj v. Sau. Jyoti 2021 SCC OnLine Bom 255 Sabitha Unnikrishnan v. Vineet Das 2021 SCC OnLine Ker 2995 and Neelam v. Jai Singh106 2021] to support his It is well within the powers of the court on receiving a plaint to determine whether or not to issue summons while determining whether the suit discloses a cause of action and should be put to trial. This has been held by this Court in Ashwani Kumar v. Aditya Mannohar Bhide and Ors. 2021 SCC OnLine Del 4752 while observing the following “6. There is no doubt that the court on receipt of a plaint acts well within its powers to consider whether the summons have to be issued or whether the suit as framed was CS(OS) 649 2021 maintainable or not. These powers are drawn from Order VII Rule 10 and Rule 11 CPC. A Co ordinate Bench of this Court has already observed in Tajunissa that even at the pre summoning stage the court could hear both the parties on the question of the maintainability of the suit under Order VII Rule 11 CPC….” 11. But while doing so the court has to consider the averments in the pleadings and the documents annexed to the plaint. As has been held in the judgements relied upon by the counsel for the plaintiff including Exphar SA and Ors. Vs Eupharma Laboratories Ltd. and Ors.3 SCC 688 Saleem Bhai and Ors. Vs State of Maharashtra and Ors. 1 SCC 557 LT Foods Limited v. Heritage Foods Limited 2014 SCC OnLine Del 2918 Indovax Pvt. Ltd. v. Merck Animal Health 2017 SCC OnLine Del 9393 G.D. Foods MFGPvt. Ltd. v. Zihawa Foods Pvt. Ltd. 2017 SCC OnLine Del 8372 etc. averments made in the plaint are to be taken on demurrer and the merits of the case and the defence available to the defendant are irrelevant to decide the question whether or not to reject the plaint. 12. While considering the averments the court is also to be cautious of skillful drafting. As observed in T. Arivandandam649 2021 the party at the first hearing so that bogus litigation can be shot down at the earliest stage…” 13. Similarly with regard to the question whether a suit is barred under law as argued by the learned counsel for the defendant it would be worthwhile to reproduce the observations of the Supreme Court in Srihari Hanumandas Totala v. Hemant Vithal Kamat 9 SCC 99: “17. Order 7 Rule 11(d) CPC provides that the plaint shall be rejected “where the suit appears from the statement in the plaint to be barred by any law”. Hence in order to decide whether the suit is barred by any law it is the statement in the plaint which will have to be construed. The court while deciding such an application must have due regard only to the statements in the plaint. Whether the suit is barred by any law must be determined from the statements in the plaint and it is not open to decide the issue on the basis of any other material including the written statement in the case ….25. On a perusal of the above authorities the guiding principles for deciding an application under Order 7 Rule 11(d) can be summarised as follows: 25.1. To reject a plaint on the ground that the suit is barred by any law only the averments in the plaint will have to be referred to 25.2. The defence made by the defendant in the suit must not be considered while deciding the merits of the 25.3. To determine whether a suit is barred by res judicata it is necessary that the “previous suit” is decided the issues in the subsequent suit were directly and substantially in issue in the former suit the former suit was between the same parties or parties through whom they claim litigating under the same title and that these issues were adjudicated and finally CS(OS) 649 2021 decided by a court competent to try the subsequent suit. 25.4. Since an adjudication of the plea of res judicata requires consideration of the pleadings issues and decision in the “previous suit” such a plea will be beyond the scope of Order 7 Rule 11(d) where only the statements in the plaint will have to be perused.” 14. The question in the present case would be whether the plaint discloses a cause of action and whether the prayers made would amount to an act in contempt of the court to be barred by law. 15. Taking the aspect of contempt first. In the case of Pratap Singh supra) relied upon by the defendant the Supreme Court was dealing with appeals against the High Court finding the appellants guilty of contempt and subjecting them to punishment. The respondent before the Supreme Court had instituted a suit in the court of the Senior Subordinate Judge Amritsar Punjab for a declaration that the order of recovery sought to be made from his salary was void and without effect. A stand was taken by the appellants before the Supreme Court that there was a letter of the Chief Secretary dated 25th January 1953 which required that a government employee had to exhaust departmental remedies before going to the court of law and the respondent Gurbaksh Singh having failed to do so was liable for disciplinary action. Disciplinary action was also initiated. Then the respondent Gurbaksh Singh alleged that by doing so they had committed contempt of court punishable under Section 3 of the Contempt of Courts Act 1952. He took the plea that the disciplinary proceedings tantamounted to interference with his legal rights to seek redress in a court of law and also amounted to exerting pressure upon him with the intent to restrain him from pressing his CS(OS) 649 2021 suit. The High Court as noticed held the appellants guilty of contempt of court. 16. The Supreme Court affirmed the finding that the conduct of the appellants before it amounted to contempt of court. The facts situation in the present case is vastly different. Nevertheless it would be of value to note the observations of the Supreme Court in para No.10 which are as to bring “10. What after all is contempt of court “To speak generally contempt of court may be said to be constituted by the authority and any conduct administration of the law into disrespect or disregard or to interfere with or prejudice parties litigant or their witnesses during the litigation”.649 2021 exhausting all his departmental remedies. What would be the effect of these proceedings on the suit which was pending in the Court of the Senior Subordinate Judge Amritsar From the practical point of view the institution of the proceedings at a time when the suit in the Court of the Senior Subordinate Judge Amritsar was pending could only be to put pressure on the respondent to withdraw his suit or face the consequences of disciplinary action. This in our opinion undoubtedly amounted to contempt of court. There are many ways of obstructing the court and “any conduct by which the course of justice is perverted either by a party or a stranger is a contempt thus the use of threats by letter or otherwise to a party while his suit is pending or abusing a party in letters to persons likely to be witnesses in the cause have been held to be contempts”. Oswald s Contempt of Court 3rd Edn. p. 87). The question is not whether the action in fact interfered but whether it had a tendency to interfere with the due course of justice. The action taken in this case against the respondent by way of a proceeding against him can in our opinion have only one tendency namely the tendency to coerce the respondent and force him to withdraw his suit or otherwise not press it. If that be the clear and unmistakable tendency of the proceedings taken against the respondent then there can be no doubt that in law the appellants have been guilty of contempt of court even contained in the circular letter.” they were merely carrying out 17. To put it differently every act cannot amount to contempt of court. The conduct which interferes with or prejudices a party litigant during the pendency of the suit or proceeding would alone amount to contempt. Though in Pratap Singh the initiation of the disciplinary proceedings was intended to discourage the respondent Gurbaksh Singh from proceeding with his suit it and amounted to a threat in the present case the plaintiff has merely approached the court seeking redressal for damage to CS(OS) 649 2021 his reputation the damage having been caused by the defendant making allegations against the plaintiff namely of being responsible for the death of their brother. Seeking legal redressal cannot tantamount to interference or obstruction to the course of justice. 18. Disparaging remarks can be expunged under Order VI Rule 16 of the CPC. The same is reproduced below for ready reference: “16. Striking out pleadings.—The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading— a) which may be unnecessary scandalous frivolous or vexatious of b) which may tend to prejudice embarrass or delay the fair trail of the suit or c) which is otherwise an abuse of the process of the Court.” What can be done by the Trial Court on an application made to it can certainly not take on the character of a threat nor can it tantamount to interference with the course of justice. Thus seeking such a prayer cannot render this suit barred under law thus requiring the court to reject the plaint under Order VII Rule 11(d) of the CPC. 19. However the question remains whether the prayer No.(c) can be sought before this Court in a suit. The plaintiff has sought a “direction” to the defendant to “withdraw” demeaning derogatory false and wrong allegations made by the defendant against him in CS(OS) No.287 2021. But as pointed out by the learned counsel for the plaintiff himself Order VI Rule 16 CPC permits the court at any stage of the proceedings to strike out CS(OS) 649 2021 any matter in the pleading which may be unnecessary scandalous frivolous vexatious or prejudicial or otherwise appears to be an abuse of the process of the court. Nothing prevented the plaintiff to have sought the striking out of such of the pleadings as was felt by him to be scandalous frivolous vexatious or prejudicial or an abuse of the process of the court which are alleged to have been made in paras No.33 34 35 & 38 of the plaint in that case. What could possibly have been achieved by moving an application before the Trial Court is sought to be incorporated as a prayer in a suit. Obviously this suit would require a trial to determine whether the plaintiff is entitled to such a relief and clearly serves no purpose. This is an example of deft drafting to seek a relief through multiplicity of proceedings with oblique motives that certainly has to be nipped into the bud. Exercising the powers under Order VI Rule 16 CPC the prayer no.(c) is struck out as being an abuse of the process of the court. However the plaintiff would be entitled to move the Trial Court in this regard if so advised. Coming to such a conclusion however cannot result in the rejection of the suit as being barred by law. 20. The learned counsel for the plaintiff has argued the question of whether averments in the pleadings entail complete privilege. In the opinion of this Court determining that issue would need a consideration of the defence that the defendant may likely take in his written statement including of privilege. However that stage is yet to come. As noted herein above reliance has also been placed on a number of judgments to contend that unfair onslaught on personal character amounts to cruelty and the victim is entitled to seek damages. While it would be a question of merit which CS(OS) 649 2021 would have to be seen in the light of the pleadings and evidence that would come on record once summons are issued as to whether the sentences as pointed out in the plaint and stated to have been incorporated in the plaint filed by the defendant are defamatory and whether the supply of the copies of the plaint to a third party who is not a family member in a case filed by the defendant to determine inter se rights of the family members in respect of the estate of their late father would amount to publication and circulation. It would also be a matter of proof that the plaintiff had indeed suffered mental agony and therefore would be entitled to seek damages from the 21. Suffice it to note on the basis of the judgments relied upon by the learned counsel for the plaintiff that a suit may be filed alleging defamation and seeking damages for harm to reputation if such pleadings have been filed that may reflect on the character of the plaintiff. A cause of action would arise on the basis of which the plaintiff can approach the court. It would definitely be a different matter whether ultimately the plaintiff succeeds in the suit or not. It is therefore not found necessary to refer to the extracts of the plaint in CS(OS) No.287 2021 as reproduced in para No.11 of the plaint except to consider whether a cause of action is disclosed. To that extent it has to be concluded that the suit discloses a cause of action. It may be underlined that such an objection has not been stressed on behalf of the defendant but in view of the detailed submissions urged on behalf of the plaintiff on the issue an opinion on the same has been given. 23. The suit having been found to be maintainable the plaint be registered CS(OS) 649 2021 as a suit. 24. Summons in the suit and notice in the applications be issued to the defendant by all permissible modes including through WhatsApp and email and also through the learned counsel who has appeared on behalf of the defendant in this matter. 25. The written statement to the suit and reply to the applications be filed within thirty days from the date of receipt of summon and notice. The defendant shall also file affidavit of admission denial of the documents filed by the plaintiff failing which the written statement shall not be taken on record. 26. The plaintiff is at liberty to file replication to the written statement and rejoinder to the reply filed by the defendant within thirty days of the filing of the written statement reply. The replication shall be accompanied by affidavit of admission denial in respect of the documents filed by the defendant failing which the replication shall not be taken on record. If any of the parties wish to seek inspection of any documents the same shall be sought and given within the time lines. 28. List before the Joint Registrar on 11th April 2022 for completion of 29. The order be uploaded on the website forthwith. FEBRUARY 15 2022 CS(OS) 649 2021 JUDGE

A criminal petition filed for quashing entire criminal proceedings and order of cognizance allowed for valid terms – Jharkhand high court

A criminal petition filed for quashing entire criminal proceedings and order of cognizance allowed for valid terms – Jharkhand high court The present criminal petition has been filed against Case No. 63 of 2006 (G.R. No. 511 of 2006) where criminal proceedings and order of cognizance has been passed against the petitioner in connection of offense under section Section 201 of the Indian Penal Code and Section 37 of the Air (Prevention of Control of Pollution) Act. the present petition was heard and allowed by a single judge bench of HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY in Mahesh Kumar Agarwal and Anr. Versus The State of Jharkhand (Cr. M. P. No. 91 of 2020) The learned counsel appearing on behalf of the petitioners submits that in the case the allegations were made against the petitioner that the petitioner owner of M/s. Sri Bihari Ji Minerals has not obtained a No Objection Certificate (NOC- consent to establish) from Jharkhand State Pollution Control Board and the unit was found running without obtaining such NOC under the pollution control law. And during the inspection, it was found that the petitioner already has obtained a NOC and was valid at the time of operation. The counsel submits that the entire case filed against the petitioners is an abuse of the process of law and therefore the entire criminal proceeding as well as the order taking cognizance to be set aside. The learned counsel appearing on behalf of the respondents submits that the NOC was issued to the unit of the petitioners and as the fact stated by the petitioners that on the date of inspection i.e. on 29.08.2006 the petitioners were having No Objection Certificate dated 04.05.2006 valid for six months is not in dispute, however, there is considerable delay in moving to court and in filing the FIR and the NOC was not produced at the time of inspection. After hearing the argument from both the parties the court decides the petitioner has valid reasons and the petition is allowed. Click here to read the Judgment

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. M. P. No. 920 1. Mahesh Kumar Agarwal aged about 57 years son of Late Lakhi Ram Agarwal Resident of Katras Bazar P.O. and P.S. Katras Bazar Dist. Dhanbad2. Ajay Kumar aged about 54 years son of Late Jokhi Ram Resident of Village Niti Bag Colony Agrico Road No. 2 P.O. Agrico P.S. Sitaramdera Jamshedpur Dist. Singhbhum East… … … Petitioners 1. The State of Jharkhand 2. The Regional Officer Jharkhand State Pollution Control Board M.B. 15 New Housing Colony P.O. and P.S. Adityapur District Saraikella … … Opp. Parties CORAM: HON BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioners For the State For the O.P. No. 2 Mr. Rajendra Prasad Gupta Advocate Mr. Ashok Kumar Advocate Mr. Prabhas Kumar Advocate Through Video Conferencing 1. Heard Mr. Rajendra Prasad Gupta learned counsel appearing on behalf of the petitioner. opposite party No. 2. present. 2. Heard Mr. Prabhas Kumar learned counsel appearing on behalf of the 3. Learned counsel for the opposite party State Mr. Ashok Kumar is also 4. This petition has been filed for quashing of the entire criminal proceeding including order taking cognizance dated 12.03.2007 in connection with Gua P.S. Case No. 63 of 2006 for offence under Section 201 of the Indian Penal Code and Section 37 of the AirAct said to be pending before the court of Chief Judicial Magistrate Chaibasa Singhbhum West. 5. The learned counsel for the petitioners submits that the allegation against the petitioners is that the petitioners in order to run their unit namely M s. Sri Bihari Ji Minerals had not obtained No Objection Certificate from Jharkhand State Pollution Control Board and that the unit was found running without obtaining such NOC under the pollution control law. 6. Learned counsel submits inspection was conducted on 29.08.2006 and the petitioners were already having the No Objection Certificate which was issued on 04.05.2006 which was valid for the period of six months from the date of issue. He also submits that a counter affidavit has been by the opposite party No. 2 confirming this fact. He submits that No Objection Certificate dated 04.05.2006 is an unimpeachable document on record and duly confirmed by the none less than the Pollution Control Board. The entire case filed against the petitioners is an abuse of the process of law and therefore the entire criminal proceeding as well as the order taking cognizance be set aside. 7. Learned counsel appearing on behalf of the opposite party No. 2 has referred to the counter affidavit and has also referred to the letter dated 09.09.2006 issued by the Member Secretary of the Pollution Control Board clearly indicating that vide letter No. 87 dated 04.05.2006 the NOC was issued to the unit of the petitioners and thus the fact stated by the petitioners that on the date of inspection i.e. on 29.08.2006 the petitioners were having No Objection Certificate dated 04.05.2006 valid for a period of six months is not in dispute. However the learned counsel for the opposite party No. 2 has also submitted that there is considerable delay in moving this court. There is delay of about 14 years from the date of the F.I.R. 8. Learned counsel appearing on behalf of the State also does not dispute the aforesaid submissions made by the learned counsel for the opposite party No. 2. He further submits that at the time of inspection the NOC was not produced. 9. After hearing the learned counsel for the parties this court finds that it is not in dispute that the genesis of the case against the petitioners is inspection conducted in the unit of the petitioners on 29.08.2006 and the allegation is that the petitioners have operated their unit without having NOC from the Pollution Control Board. 10. It further appears from the FIR as well as the counter affidavit filed on behalf of the Jharkhand State Pollution Control Board that only allegation against the petitioners who are said to be the partners of the M s. Bihari Ji Minerals is that on the date of inspection they had not obtained consent to establish from the Jharkhand State Pollution Control Board and in the counter affidavit a specific stand has been taken by the none less than the Jharkhand State Pollution Control Board itself that consent to establish was issued in favour of the Ms. Bihari Ji Minerals vide No N 87 dated 04.05.2006. Accordingly the regional office Jharkhand State Pollution Control Board has been informed and warned not to take action against any unit without proper verification vide Letter No. G 292 dated 09.09.2006. 11. It is not in dispute in the present case that the petitioners had obtained the required NOC dated 04.05.2006 from the Pollution Control Board which was valid on the date of inspection. It is further not in dispute that vide letter dated 9.09.2006 issued by the Pollution Control Board this fact has been confirmed and the said authority has also observed that before lodging any case appropriate care should be taken at the end of the Pollution Control Board itself. Considering the aforesaid fact and unimpeachable document i.e. NOC dated 04.05.2006 and confirmed by none less than the Pollution Control Board this court is of the considered view that continuation of the criminal case against the petitioners for operating their unit without NOC would be an abuse of the process of law. So far as argument of the opposite party No. 2 on the point of delay in approaching the court is concerned a status report has been received from the learned court below and as per the status report the case is still pending for appearance of the present petitioners and accordingly delay if any in moving this court under Section 482 of Cr.P.C. is not fatal to the present case of the petitioners. Accordingly in exercise of powers conferred under Section 482 of the Cr. P.C. the entire criminal proceeding as against the petitioners in connection with Gua P.S. Case No. 606including order taking cognizance dated 12.03.2007 is hereby set aside. 12. Accordingly present petition is hereby allowed. 13. Let this order be communicated to the court concerned through FAX e mail. Binit Anubha Rawat Choudhary J.)

The power of seizure in section 102 Cr.P.C. has to be limited to moveable property: High Court of Delhi

The writing of a letter to revenue authorities to maintain status-quo qua the title is a permissible step as it is distinct and different from attaching, sealing & seizure of immovable property as observed by the Hon’ble Supreme Court in its judgement. The power of seizure in section 102 Cr.P.C. has to be limited to moveable property whereas in the present case, property in question is immoveable, thus, the steps taken under section 102 Cr.P.C. is illegal. This was held in INDIABULLS COMMERCIAL CREDIT LIMITE v. ECONOMIC OFFENCES WING & ORS. [W.P. (CRL) 1256/2020] in the High Court of Delhi by a single bench consisting of JUSTICE SURESH KUMAR KAIT. Facts are that the petitioner herein is a Non- Banking Financial Company, registered with the RBI and also a financial institution under the SARFAESI Act. An order/notice was issued against the petitioner by the office of the Offences Wing, New Delhi to the Sub-Registrar-IIA, Punjabi Bagh, Nangloi, Delhi under section 102 of the Code of Criminal Procedure, 1973. The writ has been filed against the same. The counsel for the petitioner submits that the impugned order is in direct contravention of Section 102 Cr.P.C. as the said provision does not grant any power for the seizure of immovable properties and same is against law and deserves to be set aside. The learned ASC that the notice issued is not against the overall spirit of the judgement of the Hon’ble Supreme Court in Nevada Properties Private Limited vs. State of Maharashtra. The court made reference to the judgement of Apex court in Nevada Properties Private Limited vs. State of Maharashtra., wherein it was observed that “Section 102 postulates seizure of the property. Immovable property cannot, in its strict sense, be seized, though documents of title, etc. relating to immovable property can be seized, taken into custody and produced. Immovable property can be attached and also locked/sealed. It could be argued that the word ‘seize’ would include such action of attachment and sealing. Seizure of immovable property in this sense and manner would in law require dispossession of the person in occupation/possession of the immovable property, unless there are no claimants, which would be rare. Language of Section 102 of the Code does not support the interpretation that the police officer has the power to dispossess a person in occupation and take possession of an immovable property in order to seize it”. The court also made reference to section 102 of Cr. P.C, wherein it is stated that “Power of police officer to seize certain property. -(1) Any police officer, may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence.”.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 31.05.2021 W.P.1256 2020 INDIABULLS COMMERCIAL CREDIT LIMITED ..... Petitioner Through Mr.Vivek Pahwa Sr. Adv. with Mr.Ankit Banaoti Adv. ECONOMIC OFFENCES WING & ORS. Through Mr.Rajesh Mahajan ASCwith Respondent Ms.Jyoti Babbar Adv. for State. Insp. A.K. Singh PS EOW. Mr.Amandeep Singh Adv. for Intervenors RG Luxury Home Buyers Association applicant. Mr.Vivek Kohli Sr. Adv. with Mr.Mudit Gupta Adv. for R 4 to R Mr.Rudreshwar Singh Adv. with Mr.Gautam Singh Adv. for intervenors RG Jan Kalyan Samiti applicant. HON BLE MR. JUSTICE SURESH KUMAR KAIT JUDGMENTThe hearing has been conducted through video conferencing. W.P.(Crl.) 1256 2020 & Crl.M.A.11172 2020Present petition has been filed under section 226 of the Constitution W.P.(CRL.) 1256 2020 of India read with section 482 Cr.P.C. seeking directions thereby against respondent no.1 for quashing of order notice dated 05.08.2019 bearing No.531 R ACP SEC V EOW issued by the office of the Offences Wing New Delhi to the Sub Registrar IIA Punjabi Bagh Nangloi Delhi under section 102 of the Code of Criminal Procedure 1973. Counsel for the petitioner submits that the petitioner herein is a Non Banking Financial Company registered with the Reserve Bank of India and also a financial institution under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 SARFAESI Act). The petitioner has granted two loans against a property to respondent nos. 4 to 10 and upon failure to pay EMI’s on time the loan accounts of the said respondents were declared Non Performing Assets NPA) and statutory proceedings under the SARFAESI Act were conducted. Counsel for the petitioner further submits that the property in question bearing Plot No. 32 Road No. 42 Punjabi BaghDelhi 110026 is mortgaged however vide impugned notice dated 05.08.2019 ACP EOW communicated to the Sub Registrar II A Punjabi Bagh Nangloi Delhi as reproduced under: “Investigation of the above said case is being conducted by the undersigned at Section V EOW Mandir Marg New W.P.(CRL.) 1256 2020 Delhi. Brief facts of the case are that Rajesh Project Pvt. Ltd. whose managing Director is Mr. Rajesh Goyal had launched a residential housing project “RG Luxury Homes” in Greater Noida UP. He collected more than 600 crore from 1672 flat buyer 2010 onwards for the said project but the abovesaid company could not complete the project. All the money collected from the complainants investors were siphoned off to the different accounts. The transaction related to this property is subject matter of investigation of the above mentioned FIR. It is also apprehended that the property may be further transferred. In view of the above facts it would be appropriate to place an embargo on the further sale transfer on the above said property i.e. Plot no. 32 road no. 42 registered in the name of M s R K Sons Rajesh Goyal in Punjabi Bagh West New Delhi under the provision of 102 Cr.P.C. Confirmation regarding placing embargo on the above land may also be intimated to the undersigned. Larger public interest is involved in the matter and therefore earliest action and confirmation is desirable.” Counsel for petitioner submits that the impugned order is in direct contravention of Section 102 Cr.P.C. as the said provision does not grant any power for the seizure of immovable properties and same is against law and deserves to be set aside. Accordingly for convenience section 102 of Cr.P.C. is reproduced as under: “102. Power of police officer to seize certain property. 1) Any police officer may seize any property which may be alleged or suspected to have been stolen or which may be W.P.(CRL.) 1256 2020 found under circumstances which create suspicion of the commission of any offence. 2) Such police officer if subordinate to the officer in charge of a police station shall forthwith report the seizure to that 3) 1 Every police officer acting under sub sectionshall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the Court he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the same.]” To strengthen his arguments counsel for the petitioner has relied upon the case of Nevada Properties Private Limited vs. State of Maharashtra: 2019 SCC OnLine SC 1247 wherein the Hon’ble Supreme Court has held as under: “18. Having held and elucidated on the power of the Criminal Court we find good ground and reason to hold that the expression ‘any property’ appearing in Section 102 of the Code would not include immovable property. We would elucidate and explain. 19. The first part of sub section of Section 102 of the Code relates to the property which may be alleged or suspected to have been stolen. Immovable property certainly cannot be stolen and cannot fall in this part. The second part relates to the property which may be found by a police officer under circumstances which create suspicion of the commission of any offence. We have already referred to the judgments of the Delhi High Court in the case of P.K. Parmar Ms. Swaran Sabharwal and W.P.(CRL.) 1256 2020 Jagdish Chander which have elucidated and in a restricted and narrow manner defined the requirement for invoking the second part. However we have come across a decision of this Court in Teesta Atul Setalvad v. State of Gujarat on an appeal from the judgment of the Gujarat High Court and had dealt with a situation when an act of freezing the accounts was a sequel to the crime as the crime was detected earlier. The Gujarat High Court took a somewhat contrary view by not interfering and directing defreezing observing that even if the action of the investigating agency at the inception to seize may not be regular the Court cannot be oblivious to the collection of substantial material by the investigating agency which justifies its action under Section 102 of the Code. Further when the investigation had progressed to a material point de freezing the bank accounts on the basis of such arguments would paralyse the investigation which would not be in the interest of justice. After referring to the factual matrix in Teesta Atul Setalvad this Court observed that the Investigating Officer was in possession of material pointing out to the circumstances that had created suspicion of the commission of an offence in particular the one under investigation and therefore exercise of power under Section 102 of the Code would be in law legitimate as it was exercised after following the procedure prescribed in sub sectionsandof the same provision. the property. 20. Section 102 postulates seizure of Immovable property cannot in its strict sense be seized though documents of title etc. relating to immovable property can be seized taken into custody and produced. Immovable property can be attached and also locked sealed. It could be argued that the word ‘seize’ would include such action of attachment and sealing. Seizure of immovable property in this sense and manner would in law require dispossession of the person in occupation possession of the immovable property unless there are no claimants which would be rare. Language of Section 102 of the Code does W.P.(CRL.) 1256 2020 not support the interpretation that the police officer has the power to dispossess a person in occupation and take possession of an immovable property in order to seize it. In the absence of the Legislature conferring this express or implied power under Section 102 of the Code to the police officer we would hesitate and not hold that this power should be inferred and is implicit in the power to effect seizure. Equally important for the purpose of interpretation is the scope and object of Section 102 of the Code which is to help and assist investigation and to enable the police officer to collect and collate evidence to be produced to prove the charge complained of and set up in the chargesheet. The Section is a part of the provisions concerning investigation undertaken by the police officer. After the charge sheet is filed the prosecution leads and produces evidence to secure conviction. Section 102 is not per se an enabling provision by which the police officer acts to seize the property to do justice and to hand over the property to a person whom the police officer feels is the rightful and true owner. This is clear from the objective behind Section 102 use of the words in the Section and the scope and ambit of the power conferred on the Criminal Court vide Sections 451 to 459 of the Code. The expression ‘circumstances which create suspicion of the commission of any offence’ in Section 102 does not refer to a firm opinion or an adjudication finding by a police officer to ascertain whether or not ‘any property’ is required to be seized. The word ‘suspicion’ is a weaker and a broader expression than ‘reasonable belief’ or ‘satisfaction’. The police officer is an investigator and not an adjudicator or a decision maker. This is the reason why the Ordinance was enacted to deal with attachment of money and immovable properties in cases of scheduled offences. In case and if we allow the police officer to ‘seize’ immovable property on a mere ‘suspicion of the commission of any offence’ it would mean and imply giving a drastic and extreme power to dispossess etc. to the police officer on a mere conjecture and surmise that is on suspicion which has hitherto not been exercised. W.P.(CRL.) 1256 2020 We have hardly come across any case where immovable property was seized vide an attachment order that was treated as a seizure order by police officer under Section 102 of the Code. The reason is obvious. Disputes relating to title possession etc. of immovable property are civil disputes which have to be decided and adjudicated in Civil Courts. We must discourage and stall any attempt to convert civil disputes into criminal cases to put pressure on the other side1256 2020 37. If the argument of the appellant and the State of Maharashtra is accepted then there was no need for the legislature to have introduced Chapter VIIA. It would also be pertinent to mention that the power of attachment and forfeiture is given to courts and not to police officer. As pointed out in the judgment of my learned brother if a police officer is given the power to seize immovable property it may lead to an absolutely chaotic situation. To give an example if there is a physical fight between appellant is to be accepted the police official would be entitled to seize the tenanted property. This would make a mockery of rent laws. To give another example if a person forges a will and thereby claims property on the basis of the forged will can the police officer be given the power to seize the entire property both movable and immovable that may be mentioned in the will The answer has to be in the negative. Otherwise it would lead to an absurd situation which could never have been envisaged by the Legislature. The power of seizure in Section 102 has to be limited to movable property. 38. As far as the meaning of property in Section 452 of the Cr.P.C. is concerned that is not a question referred to the larger Bench and therefore I would refrain from saying anything about that. 39. In view of the above I would answer the reference by holding that the phrase ‘any property’ in Section 102 will only cover moveable property and not immovable property.” Learned ASC appearing on behalf of the State submits that the intent of the investigating agency vide impugned notice is not to attach seize or seal the property but to preserve the property in question so that any third party interest is not created without causing dispossession. It was done in the larger interest of the investors. W.P.(CRL.) 1256 2020 7. It is further submitted by learned ASC that the notice issued is not against the overall spirit of the judgement of the Hon ble Supreme Court in Nevada case notice under section 102 Cr.P.C. is not sustainable. Accordingly the said notice is hereby set aside. 10. The order passed by this Court shall not affect any of the proceedings pending either before any court or tribunal. Crl.M.A.1854 2021 & Crl. M.B. 721 2021 11. Present applications have been filed by the applicants seeking intervention in the present petition. 12. Since the impugned order is limited to the issue of section 102 W.P.(CRL.) 1256 2020 Cr.P.C. therefore no order is required to be passed in the present applications. 13. Therefore same are accordingly dismissed. 14. Any other pending application if any also stands disposed of. SURESH KUMAR KAIT) MAY 31 2021 ab W.P.(CRL.) 1256 2020

The custom duty which is applicable for telecom sector is 0%: High Court Of New Delhi

The present petition under Section 34 of the Arbitration and Conciliation Act, 1996, impugning an Arbitral Award dated 13.06.2019 and the same issue was held in the judgement passed by a single bench judge comprising HON’BLE MR JUSTICE VIBHU BAKHRU, in the matter, BHARAT SANCHAR NIGAM LTD V. M/S VINDHYA TELELINKS PVT. LTD. dealt with an issue mentioned above The context of disputes which had arisen between the parties in respect of the contract for supply and purchase of Polyethylene Insulated Jelly Filled Cables (PIJF Cables). In terms of the contract between the parties, M/s Vindhya Telelinks Pvt. Ltd. had agreed to supply PIJF Cables to BSNL. Since the element of copper constitutes the main raw material for the manufacture of the PIJF Cables, the parties had agreed that the prices of the PIJF Cables to be supplied, would be suitably adjusted to accommodate the increase or decrease in the price of copper wire rods. BSNL had agreed to issue monthly circulars regarding the price of copper for calculation of the price variation. BSNL had issued a Notice Inviting Tender (NIT) dated 12.01.2005 inviting O.M.P. (COMM) 503/2019 inquiries for the procurement of “120 LCKM PIJF Cables” The Instructions to Bidders required the bidders to quote composite prices inclusive of all the levies and taxes but excluding entry tax, based on the copper wire prices. Clause 9.8 of the Instructions to Bidders expressly provided that the prices would be quoted considering the price of copper wire as ₹1,83,366/, Whereas BSNL issued monthly circulars indicating the provisional price of copper wire rod and specifying that the same would be subject to finalization. Based on the provisional prices of copper wire rods, VTPL effected supplies and raised its invoices and also they issued a circular dated 21.08.2006 finalizing the copper rod price for each month commencing April 2005 to August 2006. VTPL requested BSNL to correct the circular to enable it to furnish invoices for the differential amount, which is quantified at ₹4,50,48,097/-. Thereafter, on 20.04.2007, VTPL issued a notice calling upon BSNL to pay the differential amount of ₹4,50,48,097/- together with interest at the rate of 18% per annum, failing which to appoint an arbitrator in terms of the arbitration agreement (Clause 20 of Section III of the bid documents). But BSNL did not accede to the said request for the appointment of an arbitrator. VTPL claims that thereafter the parties exchanged correspondence for settlement of its claims but the same remained unresolved. They also claimed that even according to BSNL, a sum of ₹59,97,504/- was payable based on the final circular dated 21.08.2006. However, the said amount was also withheld by BSNL. Ms Narula, learned counsel appearing for BSNL contended that the impugned award was vitiated by patent illegality as the Arbitral O.M.P. (COMM) 503/2019) Tribunal had proceeded based on the Advanced Purchase Order dated 10.06.2005, which was not accepted. Thus, the impugned award is based on a non-existent contract. Later she submitted that the Arbitral Tribunal has held that BSNL had violated the terms of the Agreement and thus, VTPL was entitled to higher amounts as claimed by it, and also she submitted that the Arbitral Tribunal had erred in proceeding on the basis that since BSNL had issued price circulars in line with the price circulars issued by HCL in the past. Lastly, she relied on the arbitral award rendered by another arbitral tribunal in a similar matter – an award dated 07.05.2018 in Sterlite Technologies Ltd. v. Bharat Sanchar Nigam Ltd. Mr Sharma, learned counsel appearing for VTPL countered the aforesaid submissions advanced by Ms Narula. He submitted that none of the contentions advanced on behalf of BSNL fall within the grounds as set out in Section 34(2) or Section 34(2A) of the A&C Act. He also submitted that none of the contentions as advanced were pleaded. Thus, no interference with the Arbitral Award was warranted. He pointed out that BSNL had not challenged the quantification of the claim and the decision of the Arbitral Tribunal on the construction of the contract by the Arbitral Tribunal requires no interference. The court perused the facts and argument’s presented, it believed that- “The Arbitral Tribunal had also considered the aforesaid aspect and noted that BSNL’s witness (RW1) had in his cross-examination accepted that the provisional price of copper was inclusive of the O.M.P. (COMM) 503/2019 Page 19 of 19 customs duty. Question no. 20 put to the said witness and his response to the same are unambiguous. Because of the above, the present petition is unmerited and, accordingly, dismissed”.

IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: 26.10.2021 O.M.P.503 2019 BHARAT SANCHAR NIGAM LTD Petitioner M S VINDHYA TELELINKS PVT. LTD. Advocates who appeared in this case: Respondent For the Petitioner Ms Ruchi Gour Narula Advocate with Ms Sangeeta Sondhi and Mr Gorang Goyal Advocates. Mr Narendra M. Sharma Mr Abhishek Sharma Mr Siddhartha Jain Advocates. For the Respondent HON’BLE MR JUSTICE VIBHU BAKHRU VIBHU BAKHRU J Bharat Sanchar Nigam Ltd. has filed the present petition under Section 34 of the Arbitration and Conciliation Act 1996impugning an Arbitral Award dated 13.06.2019 delivered by an Arbitral Tribunal comprising of JusticeVijender Jain former Chief Justice of Punjab and Haryana High Court as the Sole Arbitrator hereafter the ‘Arbitral Tribunal’). O.M.P.503 2019 The impugned award was rendered in the context of disputes that had arisen between the parties in respect of the contract for supply and purchase of Polyethylene Insulated Jelly Filled Cableshad agreed to supply PIJF Cables to BSNL. Since the element of copper constitutes the main raw material for manufacture of the PIJF Cables the parties had agreed that the prices of the PIJF Cables to be supplied would be suitably adjusted to accommodate the increase or decrease in the price of copper wire rod. BSNL had agreed to issue monthly circulars regarding the price of copper for the purpose of calculation of the price variation. It had issued provisional circulars and provisional payments were made accordingly. Subsequently after the supplies were completed BSNL issued a final circular setting out the monthly base prices of copper for the period April 2005 to August 2006. VTPL had contested the calculation of the price of copper as fixed by BSNL and the said dispute is central to the controversy. It claimed that the price of copper as fixed was not comparable with the base price of copper as it was reduced by the element of customs duty which was included in the base price of copper. VTPL raised claims for the differential payments which were allowed by the Arbitral Tribunal. Factual Context BSNL is a Public Sector Undertaking. It is engaged in providing telecom services in India except in Delhi and Mumbai. BSNL had issued a Notice Inviting Tender dated 12.01.2005 inviting O.M.P.503 2019 inquiries for the procurement of “120 LCKM PIJF Cables”per MT excluding Excise Duty as on January 2005. Price variation will be applicable on copper as per standard Price variation table given in Section XI of the Bold Document.” Section XI of the Instructions to Bidders included a table setting out the corresponding increase and decrease in price for every increase decrease of price of raw materials by ₹100 per metric ton for PIJF cables of different sizes specifications. Noteto the said table is relevant and is set out below: “ Note:(1) The price variation will be calculated on the Basic Price element of the approved rate and the same shall be used to arrive at the composite price to be offered to all the vendors. The composite price of each size of cable shall be worked out accordingly or monthly basis based upon the Copper Price Circular issued by BSNL. O.M.P.503 2019 This price variation shall be applicable within original delivery schedule.” The petitioner as well as various other bidders submitted their bid on the basis of the base price of copper as indicated. It is VTPL’s case that the same also included customs duty at the rate of 15% which was applicable at the material time. VTPL was declared as one of the successful bidders however the price quoted by it was not accepted. VTPL claims that it entered into price negotiations with BSNL and thereafter BSNL had made a counter offer in the form of an Advance Purchase Order dated 10.06.2005. The said Advance Purchase Order was not accepted and subsequently a revised Advance Purchase Order dated 30.07.2005 hereafter ‘the APO’) was placed on VTPL. The APO also included a price variation clause. Clause 3(i) of the APO is relevant and set out “3. PRICE VARIATION: The price variation will be calculated on the basic price element of copper base price indicated in the bid document and the same shall be used to arrive at the composite price. The composite price of each size of cable shall be worked out accordingly on monthly basis based upon the monthly Copper Price Circular issued by BSNL. However a ready reckoner is enclosed as per annexure III.” It is relevant to state that Annexure III included a table for calculation of the price variation for every month for deriving the revised composite price. Noteto the said table stated that the price O.M.P.503 2019 variation on base price“are the values of PV on copper for different sizes of cables to be computed every month as per the BSNLMonthly Price Circular and PV Table503 2019 12. VTPL requested BSNL to correct the circular to enable it to furnish invoices for the differential amount which it quantified at ₹4 50 48 097 . 13. Thereafter on 20.04.2007 VTPL issued a notice calling upon BSNL to pay the differential amount of ₹4 50 48 097 together with interest at the rate of 18% per annum failing which to appoint an arbitrator in terms of the arbitration agreement503 2019 17. Before the Arbitral Tribunal VTPL filed a Statement of Claims. Paragraph 19 of the Statement of Claims sets out the claims made by VTPL and is reproduced below: “19. The claimant circumstances is entitled for the following amounts: the aforesaid in all facts and Amount4 50 48 097.00 2 17 71 190.00 6 68 19 287.00 The differential amount on account of revision of copper wire rod priceRs.4 50 48 097 w.e.f. 21.08.2006 till 27.4.2009 18% p.a. Crores Sixty Eight Lacs Two Hundred Eight Seven only) The claimant is further entitled for pendentelite and future interest @ 18% p.a. besides cost of Arbitration. It is submitted that if the respondent pursuant to the petition filed by the claimant under Section 9makes payment of the admitted amount the claim of the claimant to that extent shall be revised 18. BSNL contested VTPL’s claim. It stated that BSNLhad been adopting the rate of copper as declared by M s Hindustan Copper Ltd. Kolkata which is also a Government of India Enterprise. It claimed that BSNL would issue monthly circulars based on the price of “CC Rod 8mm Dia503 2019 declared by HCL for the previous month. BSNL stated that in the past HCL had declared a base price and used a multiplication factor of 1.22 for arriving at the price of the said commodity CC Rod. It claimed that on examination of the price circular received from HCL for the month of March 2005 it was observed that HCL had adopted a multiplication factor of 1.17 for the price of CC Rod instead of 1.22 as used earlier. BSNL asserted that the multiplication factor had been derived by accounting for reduced customs duty at the rate of 10%. 19. BSNL requested HCL to issue a specific price circular for the telecom sector as customs duty for the telecom sector had been reduced to ‘zero’ in the Union Budget for the year 2005 06. HCL did not do so but advised BSNL to declare its own price. Accordingly BSNL issued the final circular after reducing the impact of customs duty by applying a multiplication factor derived on the basis of the multiplication factors used by HCL and adjusting the same for reduction in customs duty to nil. 20. The principal dispute between the parties relates to the computation of the final monthly price of copper as declared by BSNL for the months of April 2005 to August 2006 in terms of its circular dated 21.08.2006. According to VTPL no adjustment in customs duty was warranted as the base price declared by BSNL on the basis of which bidders including VTL had bid a composite price included an element of customs duty. Alternatively it was contended by VTPL that the base price should also be adjusted to reduce the element of customs duty thus providing for a comparable price for determination of the O.M.P.503 2019 copper. Impugned Award price variations in the composite price commensurate with the price of 21. The Arbitral Tribunal considered the aforesaid claims and found in favour of VTPL. During the course of the arbitral proceedings BSNL paid a sum of ₹36 32 734 out of an amount of ₹59 97 504 which according to VTPL were admittedly due and payable by BSNL. BSNL also assured that the balance sum of ₹24 64 780 would be processed. VTPL had stated that in the event it was done within the stipulated period it would not claim any interest. Accordingly the Arbitral Tribunal had directed that in the event BSNL paid an amount of ₹24 64 780 within a period of four weeks from 14.04.2010 VTPL would not claim any interest on the delayed payment insofar as that amount is concerned. However the said payments were not made within the stipulated period. 22. The Arbitral Tribunal considered the rival contentions and accepted VTPL’s claim that the base price of copper as indicated in the bid documents and the APO were not comparable with the final prices as set out by BSNL in the circular dated 21.08.2006. 23. The customs duty of copper wire rod for the telecom sector had been reduced to zero pursuant to the Finance Bill tabled in the Parliament along with the Union Budget for the year 2005 06. Prior to that the rate of customs duty of copper wire was 15%. The APO had O.M.P.503 2019 been placed on VTPL after the customs duty had been reduced for manufacturing for the telecom sector but the base price of copper as mentioned included the element of customs duty. Since the prices of copper as fixed by BSNL in its circular dated 21.08.2006 did not include an element of customs duty therefore they were not comparable. 24. Accordingly the Arbitral Tribunal allowed VTPL’s claim and awarded a sum of ₹4 14 15 363 503 2019 Tribunal had proceeded on the basis of the Advanced Purchase Order dated 10.06.2005 which was not accepted. Thus the impugned award is based on a non existent contract. Next she submitted that the Arbitral Tribunal had grossly erred in holding that BSNL had breached the terms of the Agreement by not issuing monthly circulars declaring the price of copper wire. She submitted that the Arbitral Tribunal has held that BSNL had violated the terms of the Agreement and thus VTPL was entitled to higher amounts as claimed by it. She submitted that BSNL had issued provisional circulars as due to the peculiar circumstances it could not issue the final price circulars at the material time. However that did not constitute a breach of its obligations under the Contract. 28. She submitted that the Arbitral Tribunal had erred in proceeding on the basis that since BSNL had issued price circulars in line with the price circulars issued by HCL in the past VTPL would be entitled to receive the composite price calculated at a higher price of copper which included the component of customs duty. 29. Next she contended that the Arbitral Tribunal failed to appreciate that VTPL had given its unequivocal and unconditional acceptance to the APOby its letter dated 11.08.2005 despite being aware that BSNL was already issuing provisional circulars since April 2005 which did not include the component of customs duty. She contended that if VTPL had viewed the provisional circulars as a breach of the Agreement it ought not to have accepted the O.M.P.503 2019 APO. She submitted that even if BSNL had issued monthly circulars declaring the final price the same would nevertheless be computed on the same basis as the provisional circulars which did not include the component of customs duty. 30. Lastly Ms Narula relied on the arbitral award rendered by another arbitral tribunal in a similar matter award dated 07.05.2018 in Sterlite Technologies Ltd. v. Bharat Sanchar Nigam Ltd. whereby the arbitral tribunal had accepted BSNL’s contentions and rejected similar claims made by the claimant. In the written note of submissions filed by Ms. Narula learned counsel appearing for BSNL the same also referred to the decisions of the Supreme Court in Bharat Coking Coal Ltd. v. Annapurna Construction: AIR 2003 SC 660 Union of India v. Jain Associates: 1994) 4 SCC 665 Food Corporation of India v. A.M. Ahmed & Co.: AIR 2007 SC 829 and PSA Sical Terminals Pvt. Ltd. v. The Board of Trustees of V O Chidambranar Port Trust Tuticorin & Ors.: Civil Appeal no. 3699 and 3700 2018 decided on 28.07.2021. 32. Mr. Sharma learned counsel appearing for VTPL countered the aforesaid submissions advanced by Ms. Narula. He submitted that none of the contentions advanced on behalf of BSNL fall within the grounds as set out in Section 34(2) or Section 34(2A) of the A&C Act. He also submitted that none of the contentions as advanced were pleaded. Thus no interference with the Arbitral Award was warranted. O.M.P.503 2019 33. He pointed out that BSNL had not challenged the quantification of the claim and the decision of the Arbitral Tribunal on the construction of the contract by the Arbitral Tribunal requires no interference. He also contested the contention that the Arbitral Tribunal had not considered the revised APO dated 30.07.2005 as urged on behalf of BSNL. Reasons and Conclusion It is apparent from the tender documentsthat the bidders were required to quote a consolidated composite price for the PIJF Cables. As noted above since the element of copper constitutes a substantial value of the said product the agreement also provided a mechanism for adjusting the composite price commensurate with the variationin the price of copper. The tender documents specified a base price of ₹1 83 366 . The Instructions to Bidders as well as the APO set out a tabular statement indicating the base price of copper wire for various sizes specifications. The price of copper as indicated was also a consolidated price and did not separately indicate the elements that constituted that price. The base price did not indicate whether it was inclusive of customs or other duties. However it is conceded that the base price included an element of customs duty and was based on the prices as declared by HCL. The price circulars issued by HCL also did not specify the value of customs duty as included in the price. The said circulars used a multiplication factor and according to BSNL the said multiplication factor was in direct proportion to the element of customs duty. O.M.P.503 2019 35. Although the base price indicated an element of customs duty the final monthly prices which were declared by BSNL by its circular dated 21.08.2006 were based on the price declared by HCL and derived by BSNL by reducing the element of customs duty. BSNL did this by suitably altering the multiplication factor on the declared price. It is also not in dispute that the APO had been issued much after the customs duty on copper for the telecom sector had been reduced to ‘Nil’. This was by way of a special concession as the customs duty on copper for other sectors had not been reduced to Nil. Notwithstanding that the customs duty for telecom sector had been reduced to Nil the base price included the same. In the given circumstances VTPL’s contention that base prices of copper were merely required to provide a scale for adjusting the composite price of PGIF Cables and therefore the elements that constitute the base price were also required to be included in the monthly prices declared thereafter cannot be stated to be unreasonable. VTPL’s contention that there was no scope to reduce the element of customs duty as there was no change in the customs duty after the issuance of the APO is also not insubstantial. 37. The Arbitral Tribunal had accepted the said claim. Plainly the view of the Arbitral Tribunal is a plausible view and warrants no interference by this Court in this proceeding. The said view does not fall foul of any fundamental policy of Indian Law. 38. The arbitral award rendered by another arbitral tribunal503 2019 Ltd. v. Bharat Sanchar Nigam Ltd. is of little assistance to BSNL. Merely because another arbitral tribunal had accepted BSNL’s contentions cannot be construed to mean that the view expressed by the Arbitral Tribunal in this case is patently illegal or in conflict with the Public Policy of India. It is now far too well settled that this Court does not sit in appeal over the decision of an Arbitral Tribunal it cannot re evaluate and re appreciate the evidence and supplant its opinion over that of the Arbitral Tribunal 1 SCC 656 M s Dyna Technologies Pvt Ltd v M s Crompton Greaves Ltd:20 SCC 1 Associate Builders v Delhi Development Authority:3 SCC 49]. Thus this Court is not called upon to determine whether the view of the arbitral tribunal in Sterlite Technologies Ltd. v. Bharat Sanchar Nigam Ltd.or the decision of the Arbitral Tribunal in this case is erroneous. An arbitral award cannot be set aside on the ground that it is erroneous. In order to interfere with an arbitral award this Court must conclude that the award is vitiated by patent illegality apparent on the face of the award. In Delhi Airport Metro Express Pvt. Ltd. v. Delhi Metro Rail Corporation Ltd.: 2021 SCC OnLine SC 695 the Supreme Court had explained the import of the expression ‘patent illegality’ as used in Section 34(2A) of the A&C Act in the following words: “25. Patent illegality should be illegality which goes to the root of the matter. In other words every error of law committed by the Arbitral Tribunal would not fall within O.M.P.503 2019 the expression ‘patent illegality’. Likewise erroneous application of law cannot be categorised as patent illegality. In addition contravention of law not linked to public policy or public interest is beyond the scope of the expression ‘patent illegality’. What is prohibited is for courts to re appreciate evidence to conclude that the award suffers from patent illegality appearing on the face of the award as courts do not sit in appeal against the arbitral award. The permissible grounds for interference with a domestic award under Section 34(2 A) on the ground of patent illegality is when the arbitrator takes a view which is not even a possible one or interprets a clause in the contract in such a manner which no fair minded or reasonable person would or if the arbitrator commits an error of jurisdiction by wandering outside the contract and dealing with matters not allotted to them. An arbitral award stating no reasons for its findings would make itself susceptible to challenge on this account. The conclusions of the arbitrator which are based on no evidence or have been arrived at by ignoring vital evidence are perverse and can be set aside on the ground of patent illegality. Also consideration of documents which are not supplied to the other party is a facet of the expression falling within It is also contended on behalf of BSNL that the Arbitral Award would result in unjust enrichment of VTPL at the cost of public money and therefore the Arbitral Award is in conflict with the Public Policy of India. This contention is without any merit. The Agreement between BSNL and VTPL is a commercial contract and the disputes before the Arbitral Tribunal were limited to examining VTPL’s claims in terms of their contract. The Arbitral Tribunal has allowed VTPL’s claim and merely because the price as claimed by VTPL is higher than O.M.P.503 2019 what according to BSNL is payable does not render the impugned award contrary to Public Policy of India. As noticed above VTPL’s claim that since the composite price of the PGIF Cables was to be adjusted on a scale of copper price the integrity of that scale was required to be maintained is not without merit. BSNL had indicated a base price including the element of customs duty even though the APO had been issued after the customs duty for telecom sector had been reduced to ‘zero’. Clearly BSNL cannot now fault the impugned award by contending that inclusion of customs duty in the price of copper is contrary to the Public Policy of Indian Law. In the opening arguments Ms. Narula learned counsel appearing for BSNL had contended that the Arbitral Tribunal had grossly erred in proceeding on the basis of the Advance Purchase Order dated 10.06.2005 and by completely ignoring that the Advance Purchase Order dated 10.06.2005 was not accepted and a revised Advance Purchase Order dated 30.07.2005 was issued. The said contention is erroneous as the arbitral record indicates that this issue was clarified by the Arbitral Tribunal by an order dated 15.01.2018. The impugned award also indicates that the Arbitral Tribunal had decided the disputes in reference to the APO503 2019 customs duty and if VTPL had any grievance in this regard it ought not to have accepted the APO. The said contention is unpersuasive. Even if the said contention is accepted it would not warrant any interference with the impugned award as the same does not fall within the scope of the grounds available under Section 34 of the A&C Act. 44. Having stated that it is also necessary to observe that the contention is based on a patently erroneous premise that the provisional circulars issued by BSNL since April 2005 did not include an element of customs duty. The said contention appears to be contrary to BSNL’s own case set up in its Counter Statement filed before the Arbitral Tribunal. In its Counter Statement BSNL had expressly stated that it used to issue circulars based on the price circular issued by HCL. In the month of March 2005 it was observed by BSNL that HCL had adopted a multiplication factor of 1.17 for pricing of CC Rod which was less than the multiplication factor of 1.22 applied earlier. BSNL noticed that the multiplication factor of 1.17 was derived by taking 10% customs duty into account instead of zero percent and had thereafter taken up the matter with HCL. The tabular statement set out in paragraph 3 of the Counter Statement of Facts indicates the prices finally determined by BSNL. These indicates that the provisional prices as conveyed to supplier were based entirely on the prices conveyed by HCL which admittedly included the element of customs duty. 45. The Arbitral Tribunal had also considered the aforesaid aspect and noted that BSNL’s witness had in his cross examination accepted that the provisional price of copper was inclusive of the O.M.P.503 2019 customs duty. Question no. 20 put to the said witness and his response to the same are unambiguous. The same are reproduced below: “Q.20 Whether the finalized copper price as finalized vide BSNL Circular dated 21.08.2006 Exh CW ¼ was inclusive of customs duty or exclusive of custom duty Ans. It was inclusive of custom duty. However the custom duty applicable for telecom sector was 0%.” In view of the above the present petition is unmerited and accordingly dismissed. VIBHU BAKHRU J OCTOBER 26 2021 O.M.P.503 2019

The order of a tribunal is sustainable when the opportunity of hearing is an empty formality: High Court of Telangana

An order issued by the tribunal is sustainable even when the opportunity of being heard is not available to either of the parties, when such an opportunity would not serve any useful purpose. This was decreed by the The Honourable Sri Justice P.Naveen Rao in the case of S. Surendhar Reddy Vs. The state of Telangana [W.P. No.15066 of 20201] on the 07th of July 2021 before the Hon’ble High Court at Telangana. The brief facts of the case are, the State Government issued general notification in Namasthe Telangana and The Hindu daily newspapers on 09.04.2021 calling upon the parties to appear before the Special Tribunal on 15th or 16th April, 2021, to request for fresh hearing of the matters. In the affidavit filed in support of the writ petition, there is no averment of petitioner that he appeared before the Special Tribunal on the days specified in the notification and requesting for rehearing the case. The case in question dealt with restoration of name of Sri E. Krishna Reddy which was found on the Pahani for the year 1959-60, but subsequently his name was removed. Petitioners before the Special Tribunal prayed to restore the name of Sri E. Krishna Reddy from 1960 onwards as protected tenant and to grant consequential benefits to them. The prayer before the Special Tribunal was to restore the name of Sri E. Krishna Reddy as protected tenant relating back to the year 1960-61 onwards i.e., more than 60 years. Assuming that he was protected tenant and was entitled to all the benefits of protected tenants, having regard to the claim to restore name of Krishna Reddy dating back to pahani for the year 1960-61, the Tribunal held that there was inordinate delay in prosecuting the claim. The present petition is filed before this court claiming that this order was not sustainable on the sole grounds of not having an opportunity to be heard. The court observed this case with respect to the judgement decreed by the court in Joint Collector ,Ranga Reddy district and another Vs. D. Narsing Rao and others [(2015) 3 SCC 695] wherein, it was observed that, “To sum up, delayed exercise of revisional jurisdiction is frowned upon because if actions or transactions were to remain forever open to challenge, it will mean avoidable and endless uncertainty in human affairs, which is not the policy of law. Because, even when there is no period of limitation prescribed for exercise of such powers, the intervening delay, may have led to creation of third-party rights, that cannot be trampled by a belated exercise of a discretionary power especially when no cogent explanation for the delay is in sight. Rule of law it is said must run closely with the rule of life. Even in cases where the orders sought to be revised are fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud. Simply describing an act or transaction to be fraudulent will not extend the time for its correction to infinity; for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority.”

THE HONOURABLE SRI JUSTICE P.NAVEEN RAO W.P. No.1506201 S.Surendhar Reddy s o. late Arjun Reddy Aged about 50 years occu: Business r o.9 6 129 Durga Nagar Champapet ….petitioner The State of Telangana rep.by its Prl.Secretary Revenue Department Secretariat Hyderabad and others. Counsel for the petitioner : Sri.Rapolu Bhaskar Counsel for the Respondents 1 to 4: Assistant Government Pleader for Home …. Respondents Gist : Head Note: Cases referred: 2015) 3 SCC 695 PNR J W.P.No.150621 HONOURABLE SRI JUSTICE P.NAVEEN RAO WRIT PETITION NO.15066 OF 2021 Date: 07.07.2021 S.Surendhar Reddy s o. late Arjun Reddy Aged about 50 years occu: Business r o.9 6 129 Durga Nagar Champapet Hyderabad. and The State of Telangana rep.by its Prl.Secretary Revenue Department Secretariat Hyderabad and others. The Court made the following: 3 PNR J W.P.No.150621 HONOURABLE SRI JUSTICE P.NAVEEN RAO WRIT PETITION NO.15066 OF 2021 This writ petition is filed praying to grant the following relief: “ …..to issue a Writ order or direction more particularly one in the nature of Writ of Mandamus by declaring the action of respondent No.2 in passing the impugned order dated 01.02.2021 in Old Case No.F3 1325 2019 without conducting trial and without issuing prior notice and opportunity to prove the case of the petitioner as illegal arbitrary and against the principles of natural justice and violative of Articles 14 19 and 21 of the Constitution of India and consequently to direct the respondent No.2 to conduct trial in Old Case No.F3 1325 2019 and pass such other orders as may deem fit and proper in the circumstances of the case.” Heard Mr.Rapolu Bhaskar learned counsel for petitioner and learned Assistant Government Pleader for Revenue respondents 1 to 4. This writ petition is filed challenging the decision of the Special Tribunal dated 01.02.2021. The Special Tribunal dismissed the revision filed under Section 9 of the Telangana Rights in Land and Pattadar Passbooks Act 1971on the ground of inordinate delay. The primary challenge to the decision of the Special Tribunal is on the ground that Special Tribunal passed orders without notice and opportunity of hearing. The disposal of the cases by the Special Tribunals in this manner was considered by the Hon’ble Division Bench of this Court in W.P.(PIL).No.221. By order dated 18.03.2021 the learned Division Bench directed as under: 4 PNR J W.P.No.150621 “4. It is therefore deemed appropriate to direct that in all cases that have been transferred from the revenue courts to the Special Tribunals notwithstanding any orders that may have been passed by the Special Tribunals the respondents shall issue public notices calling upon parties to appear before the Special Tribunals in each district on a fixed date and time to enable them to make their submissions. Wherever a request for a personal hearing is received from parties the orders passed by the Special Tribunals shall be deemed to be quashed and set aside. Fresh orders shall be passed by the Special Tribunals after granting a reasonable opportunity to the parties of being heard either in person or through their advocates. They shall also be afforded a chance to file written submissions if not already filed. Only thereafter shall fresh orders be passed by the Special Tribunals. Adequate and wide spread publicity of this order shall be given by the State within three weeks to apprise all concerned parties of the same.” Consequent to the directions issued by the Division Bench the State Government issued general notification in Namasthe Telangana and The Hindu daily newspapers on 09.04.2021 calling upon the parties to appear before the Special Tribunal on 15th or 16th April 2021 to request for fresh hearing of the matters. In the affidavit filed in support of the writ petition there is no averment of petitioner that he appeared before the Special Tribunal on the days specified in the notification and requesting for rehearing the case. However matter does not rest there. It is appropriate to note that Special Tribunal dismissed the revision on the ground that the claim was made after fifty years. Thus the petitioner has to state clearly that there was no delay or there is sufficient justification in not availing the remedy of revision. Fifty years in prosecuting the litigation even if there is merit in the contentions cannot be appreciated having regard to the settled principle of law. PNR J W.P.No.150621 In Joint Collector Ranga Reddy district and another Vs. D.Narsing Rao and others1 the Hon’ble Supreme Court was considering inordinate delay in exercising revisional jurisdiction under Section 9 of the Act 271. Deprecating the practice of availing revisional remedy after long lapse of time of arising of cause of action even though Section 9 did not stipulate limitation period to avail the remedy the Hon’ble Supreme Court held: “31. To sum up delayed exercise of revisional jurisdiction is frowned upon because if actions or transactions were to remain forever open to challenge it will mean avoidable and endless uncertainty in human affairs which is not the policy of law. Because even when there is no period of limitation prescribed for exercise of such powers the intervening delay may have led to creation of third party rights that cannot be trampled by a belated exercise of a discretionary power especially when no cogent explanation for the delay is in sight. Rule of law it is said must run closely with the rule of life. Even in cases where the orders sought to be revised are fraudulent the exercise of power must be within a reasonable period of the discovery of fraud. Simply describing an act or transaction to be fraudulent will not extend the time for its correction to infinity for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority.” 10. Thus petitioner has to prima facie explain that if an opportunity was afforded by the Special Tribunal he could have satisfied the Special Tribunal that there was no delay in prosecuting the revision and the revision is maintainable. 11. The Special Tribunal noted the contentions of petitioners. It has recorded that among the 48 names recorded as tenants in the pahani for the year 1959 60 the name of late E.Krishna Reddy found place in respect of land admeasuring Acs.400.00 guntas that after his death his sons and daughters are entitled to 6 PNR J W.P.No.150621 Acs.80.00 guntas each for one standard family holdings under the provision of Tenancy Act 1950 till the Government published the acquisition proceedings. Further case of the petitioners therein was that 48 persons were shown in the provisional register and final P.T. register and their names continued till 2014 15 and subsequently they were issued Section 38 E certificates. The name of Sri E.Krishna Reddy was found in pahani for the year 1959 60 but subsequently his name was removed. Petitioners before the Special Tribunal prayed to restore the name of Sri E.Krishna Reddy @ Kista Reddy from 1960 onwards as protected tenant and to grant consequential benefits to them. 12. The Special Tribunal found that in the Khasra pahani for the year 1954 55 Chessala pahani for the years 1955 58 and pahani 1958 59 some persons names were found in possession in which name of Sri E.Krishna Reddy @ Kista Reddy was not found that only in the year 1959 60 the name of Sri E.Kista Reddy was found in possession column as last entry. It was observed that except in the year 1959 60 his name was not found in other pahanies. In other words the prayer before the Special Tribunal was to restore the name of Sri E.Krishna Reddy @ Kista Reddy as protected tenant relating back to the year 1960 61 onwards i.e. more than 60 years. Assuming that he was protected tenant and was entitled to all the benefits of protected tenants having regard to the claim to restore name of Krishna Reddy @ Kista Reddy dating back to pahani for the year 1960 61 the Tribunal held that there was inordinate delay in prosecuting the claim. PNR J W.P.No.150621 In the affidavit filed in support of the writ petition no explanation is set forth as to whether petitioner or his ancestors agitated the grievance earlier and that there was no delay or laches on their part in prosecuting the claim for recognizing them as protected tenants and that erroneously Sri E.Krishna Reddy @ Kista Reddy name was deleted after 1959 60 and it should be restored with all consequential benefits. 14. Learned counsel for the petitioner sought to contend that the order of Special Tribunal is not sustainable on the sole ground that the Special Tribunal order was not preceded by notice and opportunity. In the normal circumstance the said stand of the petitioner warrants acceptance and matter should go back to Special Tribunal. Opportunity of hearing is one of the basic requirements of a fair decision by a quasi judicial Tribunal affecting right and or interest in agricultural land. Non compliance thereof may vitiate the decision. But in a given facts of the case writ Court need not grant the relief only on this ground if other circumstances overwhelmingly go to show on the face of it the claim of petitioner is not valid and opportunity of hearing is an empty formality. In other words it does not change the character of the decision per se. Further Court need not grant relief on the ground of lack of opportunity of hearing if it turns out to be an empty formality. In the facts of this case when there is no semblance of explanation for inordinate delay and laches and the prayer if accepted will result in upsetting settled position dating back to the year 1960 the burden is heavy on petitioner to explain more vividly how he prosecuted the grievance all along and why the issue should be reopened after 60 years. The Hindu calendar PNR J W.P.No.150621 has 60 years and after every sixty years a new cycle begins. In Hinduism completion of 60 years is an important milestone for a person called as ‘Shasti Purthi’. Petitioner completed ‘Shasti Purti’ of his claim. There is inordinate and unexplained delay in prosecuting the grievance. Thus in the facts of this case opportunity of hearing is an empty formality. Petitioner cannot improve his case to invalidate the decision of the Special Tribunal even if an opportunity is afforded to him by the Special Tribunal. 15. As no satisfactory explanation is offered on delay in prosecuting the grievance no useful purpose would be served in remanding the matter to the Special Tribunal only on the ground that Tribunal did not afford opportunity of hearing more so when petitioner has not availed the opportunity provided by the Government as per the directions of the Division Bench of this Court in W.P.(PIL) No.221 dated 18.03.2021. Writ Petition is accordingly dismissed. Pending miscellaneous petitions shall JUSTICE P.NAVEEN RAO stand closed. Date: 07.07.2021 PNR J W.P.No.150621 HONOURABLE SRI JUSTICE P.NAVEEN RAO WRIT PETITION NO.15066 OF 2021 Date: 07.07.2021

The court rejected pre-arrest bail for petitioner no. 1 as he caused grievous injuries but granted bail for petitioners no. 2, 3 and 4 as they caused simple injuries: High court of Patna

The petitioners were arrested under Section 341 IPC, “Punishment for wrongful restraint”, section 323, “Punishment for voluntarily causing hurt”, section 324, “Voluntarily causing hurt by dangerous weapons or means”, section 307, “Attempt to murder”, section 379, “Punishment for theft”, section 427, “Mischief causing damage to the amount of fifty rupees”, section 447, “Punishment for criminal trespass”, section 504, “ Intentional insult with intent to provoke breach of the peace”, and sections 506/34 of the Indian Penal Code. This present petition is in connection with Bajpatti PS Case No. 325 of 2020 dated 13.08.2020. In the high court of Judicature at Patna, this judgement was given by honourable Mr Justice Ahsanuddin Amanullah on the 21st of August 2021 in the case of Md. Gulab and others versus the state of Bihar criminal miscellaneous No.16757 of 2021, Mr Ashok Kumar Jha Represented as the advocate for the petitioner, Mr Sakir Ahmad represented the state of Bihar as the additional Public Prosecutor, and Mr Alok Kumar 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 petitioner and 10 others have been accused of assault on the informant and the others which resulted in injuries and petitioner no.1 has been specifically accused of assaulting one Mr Md. Ezaz with a farsa and petitioner no.2 and 4 has been accused of assaulting the informant with an iron rod and petitioner no.3 has been accused of hitting one Mr Enamul by a cemented pillar. The counsel representing the petitioner held that the parties are agnates and there has been a dispute during the Panchayati. This incident took place on 11th august 2020 and the FIR was filed on the 13th of august on a written report which shows that the injuries were not that serious on the informant’s side and it occurred in the spur of the moment, there has been no explanation for the delay in filing for the FIR there has also been a counter case filed by the petitioners’ side which shows that even the petitioner was seriously injured and was admitted in the hospital. According to the injury report for Mr Md. Ezaz discloses two incised wounds bone deep on the head besides other wounds; the injury report of Enamul Haque shows swelling on the lips and mobility of teeth of the lower and upper region, as also the injury report of Md. Tanseer (informant) discloses lacerated wound skin deep on the skull and body aches. However, all these injuries are considered simple in nature which is caused by hard and blunt substances except for Mr Md Ezaz as he had bleeding from his nostrils which were considered grievous in nature. Further, the counsel held that the petitioners have no other criminal antecedent. The additional public prosecutor held that the allegations of assault are very specific against the petitioners and the incident has also resulted in injuries. The counsel for the informant held that just because there is a counter case by the petitioner does not indicate the falsity of the present case however the counsel has not controverted the delay for filing the FIR and the copies of the injury reports. The court concluded that “the Court finds that as there is a specific allegation of overt act against the petitioner no. 1 that he assaulted by farsa on the head of Md. Ezaz, who sustained bone-deep injuries on the head, the Court is not persuaded to grant pre-arrest bail to him. Therefore the prayer for pre-arrest bail on behalf of petitioner no. 1, Md. Gulab stands rejected. However for petitioners no. 2, 3 and 4 are concerned, in view of the specific overt act against petitioners no. 2 and 3 i.e., Md. Ubaid and Md. Junaid, of hitting by iron rod on the head of the informant Md. Tanseer and there is only one lacerated wound on the head which is simple in nature as also the fact that against petitioner no. 3, Md. Junaid, there is an allegation of assault on Enamul Haque whose lips were swollen and there was the mobility of teeth of lower and upper region and all the aforesaid injuries have been found to be simple in nature caused by hard and blunt substance and that the petitioners no. 2, 3 and 4 have no other criminal antecedent, the Court is inclined to allow their prayer for pre-arrest bail. The petitioners no. 2, 3 and 4, Md. Ubaid, Md. Zunaid, and Md. Suhail, respectively, be released on bail upon furnishing bail bonds of Rs. 25,000. The petition stands disposed of in the aforementioned terms.” Click here to read the judgment

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.167521 Arising Out of PS. Case No. 325 Year 2020 Thana BAJPATTI District Sitamarhi 1. Md. Gulab aged about 44 years for the State and Mr. Alok Kumar Jha learned counsel for the informant. 4. The petitioners apprehend arrest in connection with Bajpatti PS Case No. 3220 dated 13.08.2020 instituted Patna High Court CR. MISC. No.167521 dt.21 08 2021 under Sections 341 323 324 307 379 427 447 504 506 34 of the Indian Penal Code 5. The allegation against the petitioners and ten others is of assault on the informant and others resulting in injuries and specifically against the petitioner no. 1 is of assault by farsa on the head of Md. Ezaz and against the petitioners no. 2 and 4 is of assault by iron rod on the informant Md. Tanseer whereas against the petitioner no. 3 the allegation is of hitting Enamul Haque by cemented pillar. 6. Learned counsel for the petitioners submitted that the parties are agnates and the dispute arose during Panchayati It was submitted that besides the occurrence being on the spur of the moment there is also a counter case. Learned counsel submitted that though the incident took place on 11.08.2020 but the FIR was lodged on 13.08.2020 that too on the written report submitted in the police station which clearly indicates that there were no serious injuries on the side of the informant Thus it was submitted that there is no explanation for the delay of almost two days in lodging of the FIR. Further it was submitted that the case filed by the petitioners’ side has been lodged on the basis of fard beyan of Md. Ubaid from Sadar Hospital Sitamarhi which shows that he was badly injured and Patna High Court CR. MISC. No.167521 dt.21 08 2021 was in the hospital. Learned counsel drew the attention of the Court to the injury report of Md. Ezaz who is said to have been assaulted by petitioner no. 1 which discloses two incised wounds bone deep on the head besides other wounds injury report of Enamul Haque shows swelling on the lips and mobility of teeth of lower and upper region which is attributed to the petitioner no. 3 as also the injury report of Md. Tanseer who is the informant and is said to have been assaulted by the petitioners no. 2 and 4 which discloses lacerated wound skin deep on the skull and bodyache. It was submitted that the nature of injuries have been said to be simple caused by hard and blunt substance except for that of Md. Ezaz on whom bleeding from both nostrils was also found which is said to be grievous in nature. Learned counsel submitted that the petitioners have no other criminal antecedent. 7. Learned APP submitted that there is specific allegation of assault against all the petitioners and the same has also resulted in injuries 8. Learned counsel for the informant submitted that just because there is a counter case it does not mean that the present case is false. However he could not controvert that there is no explanation for the delay in lodging the FIR and further Patna High Court CR. MISC. No.167521 dt.21 08 2021 the injury reports copies of which have been brought on record were also not controverted. 9. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties the Court finds that as there is specific allegation of overt act against the petitioner no. 1 that he assaulted by farsa on the head of Md. Ezaz who sustained bone deep injuries on the head the Court is not persuaded to grant pre arrest bail to him 10. Accordingly prayer for pre arrest bail on behalf of the petitioner no. 1 Md. Gulab stands rejected 11. As far as petitioners no. 2 3 and 4 are concerned in view of the specific overt act against the petitioners no. 2 and 3 i.e. Md. Ubaid and Md. Junaid of hitting by iron rod on the head of the informant Md. Tanseer and there being only one lacerated wound on the head which is simple in nature as also the fact that against petitioner no. 3 Md. Junaid there is allegation of assault on Enamul Haque whose lips were swollen and there was mobility of teeth of lower and upper region and all the aforesaid injuries have been found to be simple in nature caused by hard and blunt substance and that the petitioners no 2 3 and 4 have no other criminal antecedent the Court is inclined to allow their prayer for pre arrest bail. Patna High Court CR. MISC. No.167521 dt.21 08 2021 12. Accordingly in the event of arrest or surrender before the Court below within six weeks from today the petitioners no. 2 3 and 4 Md. Ubaid Md. Zunaid and Md Suhail respectively 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 Sub Divisional Judicial Magistrate Pupari at Sitamarhi in Bajpatti PS Case No. 3220 subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure 1973 and further that one of the bailors shall be a close relative of the petitioners no. 2 3 and 4 that the petitioners no. 2 3 and 4 and the bailors shall execute bond and give undertaking with regard to good behaviour of the petitioners no 2 3 and 4 andthat the petitioners no. 2 3 and 4 shall cooperate with the Court and the police prosecution. Any violation of the terms and conditions of the bonds or undertaking or failure to cooperate shall lead to cancellation of their bail bonds. 13. It shall also be open for the prosecution to bring any violation of the foregoing conditions by the petitioners no 2 3 and 4 to the notice of the Court concerned which shall take immediate action on the same after giving opportunity of Patna High Court CR. MISC. No.167521 dt.21 08 2021 hearing to the petitioners no. 2 3 and 4 14. The petition stands disposed of in the 15. However in view of submission of learned counsel for the petitioners it is observed that if the petitioner no. 1 Md. Gulab appears before the Court below and seeks bail the same shall be considered on its own merits in accordance with law without being prejudiced by the present (Ahsanuddin Amanullah J order. J. Alam

Jurisdiction of Courts u/s 142 of NI Act to try cheque bounce cases clarified by Supreme Court of India

The Hon’ble Supreme Court of India in M/S Himalaya Self Farming Group Vs. M/S Goyal Feed Suppliers [Transfer Petition Criminal No. 273 of 2020] held that the court within whose jurisdiction the branch of the bank where payee maintains the account is situated, will have jurisdiction to try the offence under the Negotiable Instruments Act, 1881, (“Act”) if the cheque is delivered for collection through an account.   Background: The petitioner approached the court by filing a petition u/s 406 of CrPC contending that under the delivery challan all disputes between the parties will be subjected to the jurisdiction of Silliguri and there was no reason to lodge complaint in agra other than the ulterior motive to harass the petitioner.   Relevant Provisions: Through the Negotiable Instruments Amendment Act, 2015, Section 142 of the act was amended to introduce the following provision – “(2) The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction,— (a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be,maintains the account, is situated; or (b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated.”   Held/Observation – The bench headed by Hon’ble Justice V. Ramasubramanian , while examining a Transfer Petition observed that, “If the delivery challan which states that all disputes will be subject to the jurisdiction of courts in Siliguri, is construed by the petitioners to constitute a bar for the courts in any other jurisdiction to entertain the proceedings, it is always open to the petitioners to raise this point before the Agra Court. This cannot be a ground for seeking transfer.” It was further observed by the Hon’ble Apex Court that “The fact that the petitioners have made a prior complaint to the police about the loss that he sustained on account of the poor quality of feed supplied by the respondent herein cannot be a ground to seek the transfer of the proceedings under Section 138.”

ITEM NO.7 Court 9SECTION XVI A S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Transfer PetitionNo.2720 M S HIMALAYA SELF FARMING GROUP & ANR. Petitioner(s VERSUS M S GOYAL FEED SUPPLIERS Respondent(s FOR ADMISSION and IA No.89281 2020 STAY APPLICATION and IA No.89282 2020 EXEMPTION FROM FILING O.T. Date : 16 09 2020 This petition was called on for hearing today CORAM : HON BLE MR. JUSTICE V. RAMASUBRAMANIAN Mr. Rahul Kaushik Adv. Ms. Bhuvneshwari Pathak AOR Ms. Shilpi Satyapriya Satyam Adv. Mr. Alok Pandey Adv. UPON hearing the counsel the Court made the following O R D E R The petitioners have filed the above Transfer Petition seeking transfer of the proceedings filed by the respondent under Section 138 of the Negotiable Instrument Act pending on the file of Additional Chief Judicial Magistrate Agra Uttar Pradesh to the competent Court at Siliguri Darjeeling West It is contended by the learned counsel for the petitioners that the proceedings are liable to be transferred to Siliguri for three reasons namely that under the delivery challan all disputes between the parties are made subject to the jurisdiction of courts in Siliguri that the petitioners have already lodged a criminal complaint on 29.05.2017 about the offences committed by the respondent and during the pendency of the criminal complaint the present proceedings have been initiated on 27.10.2018 and that when the respondent has its Head Office in Siliguri there was no reason to lodge the complaint at Agra except to harass the I am not convinced about any of these reasons. If the delivery challan which states that all disputes will be subject to the jurisdiction of courts in Siliguri is construed by the petitioners to constitute a bar for the courts in any other jurisdiction to entertain the proceedings it is always open to the petitioners to raise this point before the Agra Court. This cannot be a ground for seeking The fact that the petitioners have made a prior complaint to the police about the loss that he sustained on account of the poor quality of feed supplied by the respondent herein cannot be a ground to seek the transfer of the proceedings under Section 138. The fact that the respondent has its Head Office at Siliguri and that there is no reason why it chose to file a complaint in Agra except to harass the petitioners cannot also be a ground for seeking transfer. Under Section 142(2)(a of the Negotiable Instrument Act the court within whose jurisdiction the branch of the bank where the payee maintains the account is situated will have jurisdiction to try the offence if the cheque is delivered for collection through an account. Therefore all the grounds on which the petitioners seek transfer are unsustainable. The Transfer Petition is therefore dismissed. Pending application(s) if any stands disposed of ASHWANI KUMAR) (KAMLESH RAWAT AR CUM PS COURT MASTER (NSH

Section 21 of the mines and minerals Act have a lot of impact on any issue relating to mining :High Court Of Jammu & Kashmir

The claim was established on a stone crusher under the name of M/s Krishna Stone Crusher at Sanghani, Poonch Road Akhnoor.  He has challenged the order of respondent No.3 and the same was held in the judgement passed by a single bench judge comprising The Hon’ble Justice Sanjeev Kumar, in the matter M/s Krishna Stone Crusher  V/s Union Territory of J&K and others [WP(C) No.1154/2021]. On 21.12.2020, the business premises of the petitioner were raided by respondent No.3 and found that the petitioner had without lawful authority and in contravention to The Mines and Minerals (Development and Regulation) Act, 1957, Accordingly vide seizure memo which was dated 21.12.2020, respondent No.3 seized the machinery as well as minor minerals unlawfully raised by the petitioner and handed over the same on the surname of Sub Inspector Rashpal Sharma of Police Station, Akhnoor. Later the petitioner preferred a statutory appeal before respondent No.2. The appeal was dismissed by respondent No.2 vide impugned order dated 18.01.2021 being devoid of any merit. On remand, the matter came up for consideration before respondent No.2, who, vide impugned order dated 19.04.2021, constituted a Committee of four officers to carry out spot inspection and assessment of the number of minor minerals lying at the site of crusher in the presence of the petitioner and District Mineral Officer. It was mentioned that the appeals filed by the petitioner before respondents Nos.2 and 1, too, were decided by the authorities in a casual and perfunctory manner without addressing the real issues raised by the petitioner. Also, the respondents have filed objections, It is submitted that the State of Jammu & Kashmir now Union Territory intending to regulate [WP(C) No.1154/2021] development and mining of minor minerals in tune with the directions of Hon’ble the Supreme Court and acting in the exercise of powers conferred under Section 15 read with Section 23-C of the Act reframed The Jammu and Kashmir Minor Mineral Concession, Storage, Transportation of Minerals and Prevention of Illegal Mining Rules, 2016 [“the Rules”] notified vide SRO 105 of 2016. Machinery as also the minor minerals stacked at the unit were seized by respondent No.3. FIR was also recommended against the petitioner for having committed theft of minor minerals, the property of the government, but correctly it was dismissed. Then Section 21 of the Act deals with the penalties that can be imposed on a person contravening the provisions of Sub Section (1) or Sub-Section (1-A) of Section 4 of the Act. Sub-Section (4) of Section 21 of the Act was mentioned by the Advocate. It appears that the petitioner as also the respondents without appreciating the true import proceeded on the assumption that the provisions of Section 23-A of the Act providing for compounding of the offence on payment of sum were mandatory and that is how the matter was dealt with by the first appellate authority, However, if the petitioner chooses not to accept the offer for compounding of the offence, it shall be open for the authorized officer to file an appropriate complaint before the competent court of law and launch prosecution against the petitioner. The seized material including the machinery shall be dealt with by the competent court in accordance 9 WP(C) No.1154/2021 with law. The Hon’ble High Court perused the facts and the arguments presented, and thereby, opined that –“These proceedings can proceed independently of the prosecution that may be launched by the authorized officer against the petitioner before the competent court of law for committing an offence under Sub-Section (1) of Section 21 of the Act. Needless to say that the petitioner, if aggrieved of the order/orders, if any passed by the respondents, shall be entitled to invoke statutory remedies as may be available to him under the Act and the Rules framed thereunder, With the aforesaid observations and directions, this writ petition is disposed of”.

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU h475 WP(C) No.1154 2021 CM Nos.4762 2021 4763 2021 5288 2021 & 5291 2021 Reserved on : 22.09.2021 Pronounced on : 29.09.2021 M s Krishna Stone Crusher ...Petitioner(s) Through: Mr. Parag Sharma Advocate Union Territory of J&K and others ...Respondent(s) Through: Mr. F.A.Natnoo AAG Coram: HON’BLE MR. JUSTICE SANJEEV KUMAR JUDGE The petitioner Vinod Kumar claims to have established a stone crusher under the name of M s Krishna Stone Crusher at Sangani Poonch Road Akhnoor. He is aggrieved and has challenged the order of respondent No.3 bearing No.DMO 2 seizure 20 21 2394 95 dated 21.12.2020 whereby machinery and minor minerals i.e. crushed bajri approx. 15000mt c dust 1000 mt Nullah Muck 200 mt and bed mix 5000 mt has been seized and handed over on Supurdnama to Sub Inspector Rashpal Sharma of Police Station Akhnoor. The petitioner has also assailed the order of respondent No.2 dated 18.01.2021 passed in an appeal filed by the petitioner challenging the order of respondent No.3. The order 2 WP(C) No.1154 2021 passed by respondent No.1 dated 08.03.2021 in the second appeal filed by the petitioner is also under challenged in this petition. Two orders passed by respondent No.2 on 19th April 2021 and 27th May 2021 are also subject matter of challenge in this petition. Before adverting to the grounds of challenge urged by learned counsel for the petitioner to assail the impugned orders it is necessary to notice material facts. On 21.12.2020 the business premises of the petitioner were raided by respondent No.3 and found that the petitioner had without lawful authority and in contravention to The Mines and Minerals Act 1957 had raised minor minerals of different quantity and was using the machinery contrary to the provisions of the Act and the Rules framed thereunder. Accordingly vide seizure memo dated 21.12.2020 respondent No.3 seized the machinery as well as minor minerals unlawfully raised by the petitioner and handed over the same on spurdnama of Sub Inspector Rashpal Sharma of Police Station Akhnoor. Feeling aggrieved the petitioner preferred statutory appeal before respondent No.2. The appeal was dismissed by respondent No.2 vide impugned order dated 18.01.2021 being devoid of any merit. The petitioner approached respondent No.1 by way of second appeal which was partially accepted and respondent No.2 was directed to do fair assessment of the seized minor minerals under Rules and expedite the matter in light of the repeal of SRO 302 and notification of new Rules vide 3 WP(C) No.1154 2021 S.O. 621. On remand the matter came up for consideration before respondent No.2 who vide impugned order dated 19.04.2021 constituted a Committee of four officers to carry out spot inspection and assessment of quantity of minor minerals lying at the site of crusher in the presence of the petitioner and District Mineral Officer. The Committee was also called upon to verify the documents as also to certify whether the seized material was freshly extracted crushed. It is the allegation of the petitioner that respondent No.2 without waiting for the report of the Committee constituted by him and acting upon the report of District Mineral Officer dated 23.05.2021 requested the Joint Director Geology and Mining Department to impose penalty on the petitioner as per seizure memo issued on 21.12.2020 at an earliest. The petitioner being aggrieved of the manner in which the respondents have addressed his grievance and has assailed the impugned order inter alia on the ground that respondent No.3 who vide order dated 21.12.2020 effected seizure could not have directed the petitioner to remain present before the Joint Director Geology and Mining Department Jammu on 22.12.2020 for compounding of the penalty when there was no penalty imposed at that time. It is argued that the appeals filed by the petitioner before respondent Nos.2 and 1 too were decided by the authorities in a casual and perfunctory manner without addressing the real issues raised by the petitioner. The respondents have filed objections. It is submitted that the State of Jammu & Kashmir now Union Territory with a view to regulate 4 WP(C) No.1154 2021 development and mining of minor minerals in tune with the directions of Hon’ble the Supreme Court and acting in the exercise of powers conferred under Section 15 read with Section 23 C of the Act reframed The Jammu and Kashmir Minor Mineral Concession Storage Transportation of Minerals and Prevention of Illegal Mining Rules 2016 notified vide SRO 1016. Subsequently the Government of Jammu and Kashmir also promulgated the Jammu & Kashmir Minor Minerals Exploitation and Processing Rules 2017 vide SRO 302 dated 19.07.2017. It was made mandatory for all existing and fresh units to obtain prescribed license for their operations dealing with minor minerals. It is submitted by the respondents that the petitioner was found to have raised minor minerals of different kinds in violation of SRO 302 and SRO 105 as such machinery as also the minor minerals stacked at the unit were seized by respondent No.3. FIR was also recommended against the petitioner for having committed theft of minor minerals the property of the government. The Appellate Authority found no merit in the appeal of the petitioner and thus correctly dismissed it. Respondent No.1 on receiving the second appeal under Rule 85 of the Rules constituted a Committee of officers to carry out spot inspection and assessment. The Committee submitted its report on 05.05.2021 and respondent No.2 on receiving the report from the Committee constituted by him called upon the Joint Director Geology and Mining Department Jammu to impose penalty on the petitioner as per the seizure memo issued. This is how the respondents have sought to justify the action taken by them against the petitioner. 5 WP(C) No.1154 2021 Having heard learned counsel for the parties and perused the record it is necessary to notice relevant provisions of the Act governing the controversy in hand. Section 21 of the Act deals with the penalties that can be imposed on a person contravening the provisions of Sub Section or Sub Sectionof Section 4 of the Act. Sub Sectionof Section 21 of the Act which is invoked by the respondents to effect seizure of the machinery and minor minerals stacked at the unit of the petitioner reads thus: “21. Penalties. 1) .. 2) .. 3) 4) Whenever any person raises transports or causes to be raised of transported without any lawful authority any mineral from any land and for that purpose uses any tool equipment vehicle or any other thing such mineral tool equipment vehicle or any other thing shall be liable to be seized by an officer or authority specially empowered in this Admittedly respondent No.3 is an officer authority specially empowered by the State Government to exercise the powers under Sub Sectionof Section 21 of the Act and therefore no fault can be found with the impugned order dated 21.12.2020. The argument of the learned counsel for the petitioner that respondent No.3 could not have called upon the petitioner to appear before Joint Director Geology and Mining 6 WP(C) No.1154 2021 Department for compounding of the penalty as there was no penalty imposed on 21.12.2020 and that it would be tantamount to putting cart before the horse is without any substance and cannot be accepted. Section 23 A of the Act which provides for compounding of offences gives power to the person authorized to file a complaint before the competent court for taking cognizance of an offence punishable under the Act to compound the offence either before or after the institution of the prosecution on payment by the accused person to the credit of the government such sum as such authorized person may specify provided that in case of an offence punishable with fine only such sum shall not exceed the maximum amount of fine that may be imposed for that offence. For ready reference Sections 22 and 23 A of the Act are reproduced hereunder: Section 22 “22.Cognizance of offences. No court shall take cognizance of any offence punishable under this Act or any rules made thereunder except upon complaint in writing made by a person authorized in this behalf by the Central Government or the State Government.” Section 23 A “23 A. Compounding of offences.—(1) Any offence punishable under this Act or any rule made thereunder may either before or after the institution of the prosecution be compounded by the person authorized under Section 22 to make a complaint to the court with respect to that offence on payment to that person for credit to the Government of such sum as that person may specify: 7 WP(C) No.1154 2021 Provided that in the case of an offence punishable with fine only no such sum shall exceed the maximum amount of fine which may be imposed for that offence. 2) Where an offence is compounded under sub section no proceeding or further proceeding as the case may be shall be taken against the offender in respect of the offence so compounded and the offender if in custody shall be released A conjoint reading of Section 21(4) Section 22 and Section 23 A(1) of the Act would clearly and unequivocally indicate that if a person is found to have contravened the provisions of Section 4(1) and Section 4(1 A) of the Act and has become liable to be prosecuted for such offence the authorized officer before filing a complaint in the competent court of law and launching prosecution or even after launching of the prosecution can compound such offence on payment of such sum as that authorized person may specify to the credit of the Government. It is in the light of these provisions respondent No.3 after effecting seizure and before filing complaint before the competent court of law provided an opportunity to the petitioner to come forward for compounding of the offence. It is true and there could be no disagreement on the point that it is always left to the discretion of the accused person to either face prosecution or avoid it by resorting to Section 23 A of the Act by seeking compounding of the alleged offence. The impugned seizure memo dated 21.12.2020 and the directions contained therein for appearance of the petitioner for compounding of offence is required to be viewed and appreciated in light of the aforesaid provisions. 8 WP(C) No.1154 2021 It appears that the petitioner as also the respondents without appreciating the true import proceeded on the assumption that the provisions of Section 23 A of the Act providing for compounding of the offence on payment of sum were mandatory in nature and that is how the matter was dealt by the first appellate authority second appellate authority and on remand again by the first appellate authority giving rise to unnecessary and uncalled for litigation. For the foregoing reasons and with a view to set the record straight all impugned orders except seizure memo dated 21.12.2020 and order of respondent No.2 dated 19.04.2021 to the extent of constitution of Committee of officers by respondent No.2 for making assessment in a fair and transparent manner are found to be not in consonance with law and therefore quashed. The Joint Director Geology and Mining Department Jammu the authorized officer shall in terms of Section 23 A of the Act give an option to the petitioner in writing as to whether he is willing and interested in the compounding of the offence and in case he expresses his intention for compounding of the offence rather than facing prosecution the officer authorized in terms of Section 22 shall proceed under Section 23 A and direct the petitioner to pay such sum as he may specify. And in case of offence punishable with fine only such sum shall not exceed maximum amount of fine. However if the petitioner chooses not to accept the offer for compounding of the offence it shall be open for the authorized officer to file an appropriate complaint before the competent court of law and launch prosecution against the petitioner. The seized material including the machinery shall be dealt with by the competent court in accordance 9 WP(C) No.1154 2021 with law. Notwithstanding the aforesaid procedure which ought to be followed by the authorized officer when a person who is found to have contravened the provisions of Sections 4(1) and 4(1 A) of the Act it is open to the State Government or the authorized officer who may have been delegated such powers to recover from such person the minerals raised in contravention of the provisions of the Act and the Rules framed thereunder or where such minerals had already been disposed of the price thereof. This is so provided in Section 21(5) of the Act which for facility of reference is reproduced hereunder: “(5) Whenever any person raises without any lawful authority any mineral from any land the State Government may recover from such person the mineral so raised or where such mineral has already been disposed of he price thereof and may also recover from such person rent royalty or tax as the case may be for the period during which the land was occupied by such person without any lawful authority.” It is thus held that apart from proceeding under Section 22 and 23 A of the Act the State Government or officer authorized by it under Section 26 of the Act is entitled to recover the seized mineral if the same is intact and where such mineral has already been disposed of the price thereof. With a view to work out the price so recoverable it shall be incumbent upon the State Government authorized officer to conduct an enquiry and give an opportunity of being heard to the petitioner. However if the authorized officer relies upon the report of the Committee constituted by respondent No.2 for making assessment of the material seized a copy of 10 WP(C) No.1154 2021 the report shall be given to the petitioner and he shall be given a fair opportunity to object to the report as also the assessment proposed to be made by the State Government authorized officer. These proceedings can proceed independently of the prosecution that may be launched by the authorized officer against the petitioner before competent court of law for committing offence under Sub Section of Section 21 of the Act. Needless to say that the petitioner if aggrieved of the order orders if any passed by the respondents shall be entitled to invoke statutory remedies as may be available to him under the Act and the Rules framed thereunder. With the aforesaid observations and directions this writ petition is disposed of. Judge 29.09.2021 Vinod PS Whether the order is speaking : Yes Whether the order is reportable: Yes

The Court is inclined to allow the prayer for bail to the petitioner after being apprehended under Sections 419, 420, 406, and 120B IPC: High court of Patna 

The petitioner was taken into custody under Section 419 IPC, “Punishment for cheating by personation”, section 420 “Cheating and dishonestly inducing delivery of property”, section 406, “Punishment for criminal breach of trust” and section 120B IPC, “Punishment of criminal conspiracy”. This is in connection with Town PS Case No. 50 of 2019 dated 24.01.2019. This judgment was given in the high court of Judicature at Patna by honorable Mr. Justice Ahsanuddin Amanullah on the 5th of August 2021 in the case of Dharam Sah @ Dharm Sah versus the state of Bihar criminal miscellaneous No.19508 of 2021, Mr. Arun Kumar Represented as the advocate for the petitioner and Mr. Raj Ballabh Singh represented as the additional Public Prosecutor, the proceedings of the court were held via video conference. The following are the facts of the case, the petitioner made connections between the informant and co-accused and her husband, they had taken Rs. 5 lakhs from the informant for getting a job for the informant’s grandson in the civil court which happened in the presence of the petitioner however the same did not materialize, further the petitioner took the informant to a bank and made her deposit Rs. 49,000 and took the money, the co-accused refused to return the money and instead gave her one card, PAN card, Aadhar, etc and also abused the informant. According to the counsel for the petitioners, he held that the daughter of the informant was also working as a maid in the co-accused household, the petitioner also resided in the same building, the grandson of the informant was getting married and they had taken jewelry worth Rs. 1,15,912 from the shop owned by the petitioner and some amount is yet to be paid, according to the FIR the money was given to the co-accused and not the petitioner, after investigation the informant’s family has a history of lodging false cases. Therefore, the petitioner is not guilty under the law because the money paid to him was due to the ornaments which he sold in his shop and handed over the required documents regarding the payments to the court as evidence, the co-accused have been granted anticipatory bail and the petitioner cannot be held in custody any longer The Additional Public Prosecutor held that according to the witnesses they have supported the story laid down by the prosecutor however it is not controverted that due to the informant’s grandson‘s marriage they had purchased the gold and the due amount was remaining, and the parties are tenants of a common landlord. The court after considering the facts and circumstances of this present case held that the petitioner was not the one who promised the job for the informant’s grandson and the documents prove that he was the owner of the jewelry shop and the co-accused have been granted anticipatory bail and therefore the Court is inclined to allow the prayer by giving bail for the same.

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

“Equal pay for equal work” is not a fundamental right vested in any employee, though it is a constitutional goal to be achieved by the Government: Supreme Court

Equal pay for equal work” is not a fundamental right vested in any employee, though it is a constitutional goal to be achieved by the Government, the Supreme Court remarked in a judgment delivered on Thursday (27 January 2022). The bench comprising Justices DY Chandrachud and Bela M. Trivedi observed that the equation of post and determination of pay scales is the primary function of the executive and not the judiciary in the case of State of Madhya Pradesh (Appellants) versus R.D. Sharma and anr. (CIVIL APPEAL Nos. 474-475 OF 2022). Therefore, ordinarily courts will not enter upon the task of job evaluation which is generally left to the expert bodies like the Pay Commissions, the court added. In this case, the writ petitioner before the High Court of Delhi had retired from the post of Principal Chief Conservator of Forest (PCCF). The Government of India had rejected his representation seeking revision of his pension from Rs.37,750/- (50% of HAG Scale 75000-80000) to Rs. 40,000/ (50% of apex scale 80000) as per the Indian Forests Service (Pay) Second Amendment Rules, 2008. Against this, he approached the Central Administrative Tribunal, which dismissed his Original Application. Later, the Delhi High Court, allowing his writ petition, held that he was eligible to get the benefit of Rs. 40,000/- as pension at par with the other officers, as per the Rules of 2008. In appeal filed by the State, the Supreme Court bench noted that the High Court had thoroughly misdirected itself by applying the principle of “equal pay for equal work” placing reliance on the decision of this court in case of State of Punjab and Ors. Vs. Jagjit Singh and Ors. (2017 SCC 148) which had no application to the facts of the present case. Referring to relevant rules, the bench observed that the Tribunal had rightly rejected the claim made by the appellant. The Tribunal had not committed any jurisdictional error, nor any failure of justice had occasioned, and hence the interference of the High Court in order passed by the Tribunal was absolutely unwarranted, the court said while allowing the appeal. Click here to read the judgment Judgment Reviewed by Meenakshi Jena

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL Nos. 474 475 OF 2022 Arising out of SLP(Civil) Nos. 547 5421) STATE OF MADHYA PRADESH R.D. SHARMA AND ANR. …APPELLANT(S) JUDGMENT BELA M. TRIVEDI J. Leave granted. The appellant State of Madhya Pradesh by way of present appeals filed under Article 136 of the Constitution of India has assailed the Judgments and Orders dated 28.04.2017 and 17.09.2019 passed by the High Court of Madhya Pradesh Principal Seat at Jabalpur in W.P. No. 149413 and R.P. No. 13818 respectively. The respondent no. 2 herein i.e. Government of India Ministry of Personnel Public Grievances and Pensionsin exercise of the powers conferred by sub section 1 of section 3 of All India Services Act 1951 and in supersession of the Indian Forests Service had made the Rules namely the Indian Forests ServiceRules 2007). The said Rules of 2007 came to be amended by the respondent no. 2 vide the notification dated 27the September 2008. The said Amended Rules were called the Indian Forests Service Second Amendment Rules 2008to be designated as the Head of Forest Force in the each State cadre. The said rule further provided for the apex scale at Rs. 80 000 for the said upgraded post designated as the Head of Forest Force. It also provided that the said upgradation was to be made w.e.f. the date of issue of the notification of the Amended Rules 2008 i.e. 27th September 2008 and that the said upgraded post was to be filled by “selection” from amongst the officers holding the post of PCCF in the State cadre in the HAG+ scale of Rs. 75 500 Rs. 80 000. The respondent no. 1retired from the post of PCCF on 31st December 2001. On 2nd April 2011 the respondent no. 1 made a representation to the Government of India requesting it to revise his pension from Rs.37 750 to Rs. 40 000 as per the Indian Forests ServiceSecond Amendment Rules 2008. The said representation came to be rejected by the Government of India Ministry of Personnel Public Grievances and Pensions Department of Pension and Pensioners Welfare vide the order dated 24th June 2011. The aggrieved respondent filed an O.A. being No. 1142 2011 before the Central Administrative TribunalJabalpur Madhya Pradesh on 27th November 2011. The said O.A. came to be dismissed by the Tribunal vide the order dated 17th May 2013. However the Writ Petition being No.149413 filed by the respondent challenging the said order passed by the Tribunal came to be allowed by the High Court of Madhya Pradesh Jabalpur vide the order dated 24th August 2013. The High Court by the said order held that the respondent no. 1 was eligible to get the benefit of Rs. 40 000 as pension at par with the other officers as per the Rules of 2008. The aggrieved appellant State of MP challenged the said order passed by the High Court before this Court by filing the special leave petitionNo. 36531 of 2017. The said SLP came to be disposed of by this Court vide order dated 1st December 2017 which reads as under: “Delay condoned. In the judgment it is observed as follows: “It is an admitted fact that the petitioner retired from the post of Principal Chief Conservator of Forests Head of the Forest Department…..”. According to the learned counsel appearing for the State this is not true to facts. If that be so it is for the petitioner to go back to the High Court and get the records corrected. With the liberty as above the special leave petition is disposed of. We make it clear that we have not otherwise considered the matter on merits. Pending application(s) if any shall stand disposed of.” The appellant availed the liberty granted by this Court and approached the High Court by filing a review petition being R.P. No. 13818. The said review petition however came to be dismissed by the High Court vide impugned order dated 17th September 2019. The aggrieved appellant therefore has challenged both the orders dated 28.04.202017 and 17.09.2019 passed by the High Court by way of these appeals. In the instant appeals the question that falls for consideration before this court is whether the High Court while exercising its powers of superintendence under Article 227 of Constitution of India had misdirected itself by applying the principle of “equal pay for equal work” to the case of respondent no. 1 who had already retired as the PCCF on 31.12.2001 for the purpose of granting him the benefit of the apex scale fixed for the upgraded post of Head of the Forest Force MP Cadre as per the Amended Rules of 2008 which came into effect from 27the September 2008 and fixing his pension accordingly However before adverting to the rival contentions raised by the Ld. Advocates for the parties let us first deal with the preliminary objection raised by the Ld. Advocate Mr. Anish Kumar Gupta appearing for the respondent no. 1 as regards the maintainability of the appeals. According to Mr. Gupta the appellant having earlier challenged the order dated 28th April 2017 passed by the High Court by filing the SLP before this court and this court while disposing of the said SLP vide the order dated 1st December 2017 having not granted any liberty to approach this court again after the disposal of Review Petition by the High Court the present appeals are not maintainable. The court does not find any substance in the said preliminary objection raised by Mr. Gupta. As discernible from the earlier order dated 1st December 2017 reproduced hereinbefore this court while disposing of the SLP had granted a liberty to the appellant to go back to the High Court and get the records corrected as according to the Ld. Counsel appearing for the appellant State certain facts were not correctly recorded by the High Court in the impugned order. This court also clarified that it had otherwise not considered the matter on merits. As rightly submitted by Ld. AAG Mr. Saurabh Mishra for the appellant State since this court had granted a liberty to the appellant to approach the High Court and had disposed of the SLP without expressing any opinion on merits it was intended to keep all the issues open for being considered by the High Court in the Review Petition and to permit the appellant to approach this court in case the appellant was aggrieved by the order passed by the High Court in the Review Petition as well as in the Writ Petition. In the opinion of the court the observations made by this court in the latest decision in case of Sudhakar Baburao Nangnure Vs. Noreshwar Raghunathrao Shende 2020SCC 399 clinch the issue in which the Supreme Court in almost similar issue as raised in the present appeals has observed as under: “It is well settled that if a submission which has been urged before the High Court has not been noticed or considered it is to the High Court that the aggrieved litigant must turn for the rectification of the record. But apart from this the observation in the order dated 12 December 2017 that this Court had not considered the matter on merits is of crucial significance. The purpose of that clarification was to ensure that the issues which were raisedwere entirely open to be urged before the High Court in the first instance and thereafter if the appellant were to be aggrieved in further proceedings before this Court. The above observation of this Court was not merely intended to keep the issue of the non consideration of the catch up rule open to be urged before the High Court. That this issue was kept open is evident from the last part of the order dated 12 December 2017 which specifically keeps open the contentions of the parties to be urged before the High Court. In addition this Court carefully enunciates that we have not considered the matter on merit. the order of In view of this clear clarification it is impossible to accept the preliminary objection that a recourse to this Court is barred after the High Court decided the review petitions. To take any other view would effectively deny access to justice to the appellant. Evidently the grievance of the appellant was not considered by this Court on merits on 12 December 2017. To adopt a construction which would deprive the appellant of the remedy of moving this Court after the decision of the High Court in review would lead to an egregious failure of justice. Such a construction must be eschewed.” In view of the clinching observations made by this court in the afore stated decision no further elaboration is required for holding that the present appeals are legally So far as the merits of the appeals are concerned Ld. AAG Mr. Mishra for the appellant strenuously urged placing reliance upon the Rules of 2008 that the said rules having come into force w.e.f. 27th August 2008 and the respondent no. 1 having already retired as PCCF in 2001 the respondent no. 1 could not have been granted the benefit of the apex scale as erroneously granted by the High Court applying the principle of “equal pay for equal work”. According to him the said principle had no application to the upgradation of post of PCCF as the Head of Forest force in the apex scale which had to be filled up by “selection” and that too with effect from 27th August 2008. He also drew the attention of the court to the Rules of 2007 and of 2008 to submit that the respondent no. 1 was working as PCCF and was not working on the upgraded post of Head of the Forest Force which was designated for the first time in the year 2008 and that the High Court had erroneously observed in the impugned orders that the respondent no. 1 was working as the PCCF Head of the Forest Force. The Ld. ASG Mr. Vikramjit Banerjee for the respondent no. 2 Union of India supplementing the submissions made by the Ld. AAG Mr. Mishra for the appellant State submitted that the benefit of upgradation of one existing post cannot be given to the pensioner who had already retired before such upgradation. In this regard he had relied upon K.S. Krishnaswamy & Ors. Vs. Union of India & Anr. Reported in 2006 13) SCC 215. Per contra the Ld. Advocate Mr. Anish Kumar Gupta appearing for the respondent no. 1 taking the court to the various appointment orders issued by the appellant in case of other officers submitted that the officers appointed as PCCF MP were also appointed as the Head of the Forest Department M.P. before the Amended Rules came into force and that the respondent was also shown as the PCCF M.P. in the list of members of IFS which meant that the respondent was also the PCCF Head of the Forest Department in the State of Madhya Pradesh. Invoking the principle of “equal pay for equal work” he submitted that the work and responsibility of a PCCF M.P. and the upgraded post of PCCF Head of Forest Force were the same and therefore the High Court had rightly granted the benefit of the apex scale as per the Amended Rules of 2008. He further submitted that the post of PCCF Head of Forest Force in IFS was not a newly created post but was upgraded from the existing post of PCCF in the department by virtue of the Amended Rules and therefore also though the respondent had retired in 2001 he was required to be treated as eligible for the pension as per the apex scale of Rs. 80 000 . In order to appreciate the rival contentions raised by the learned counsel appearing for the parties it would be beneficial to reproduce the relevant Amended Rules of 2008 which came into effect from 27th September 2008. The relevant sub rule 1) of Rule 3 of the said Amended Rules 2008 reads as under: Pay Bands and Grade Pays: The pay bands and grade pays admissible to a member of the Service and the dates with effect from which the said pay bands and grade pays shall be deemed to have come into force shall be as follows: A to C …. Above Super Time Scale: Additional Principal Chief Conservator of Forest Pay Band 4: Rs.37400 67000 plus Grade Pay Rs.12000 HAG +: Rs.75500 80000 Grade Pay: Nil Apex Scale: Rs.80000 Grade Pay: nil With effect from the date of issue of notification of the Indian Forests ServiceAmendment Rules 2008) Note 1: …. Note 2: The post of Principal Chief Conservator of Forest in the apex scale shall be filled by selection form amongst the officers holding the post of Principal Chief Conservator of Forest in the State cadre in the HAG + Scale of Rs. 75500From the above quoted rules it is abundantly clear that one existing post of PCCF was to be upgraded as the Head of Forest Force in each State cadre fixing the apex scale at Rs. 80 000 w.e.f. the date of the issue of Notification of the said Amended Rules i.e. 27th September 2008 and that the said post of PCCF in the apex scale was to be filled up by selection from amongst the officers holding the post of PCCF in the State cadre in the HAG + scale of Rs.75 500 80 000 . Since the respondent no. 1 had retired as the PCCF in the year 2001 that is much prior to the coming into force of the Amended Rules 2008 his claim to get the benefit of the apex scale as per the said rules was thoroughly misconceived. The apex scale of Rs. 80 000 was fixed for the upgraded post designated as the Head of Forest Force w.e.f. 27th September 2008 and was to be filled up by way of selection and not as a matter of course. It is needless to say that filling up a post by selection would always require a process of screening the eligible employees and cannot be automatic on the basis of seniority. The contention raised by Mr. Gupta for the respondent no. 1 that even prior to the amendment in the rules in the year 2008 the officers working on the post of PCCF were the Head of the Forest Force and the respondent no. 1 was also working as such cannot be accepted for the simple reason that if all the officers working on the post of PCCF were also working as the Head of the Forest Force there was no need to upgrade one existing post of PCCF in the apex scale of Rs. 80 000 and designate it as the Head of the Forest Force w.e.f. 27th September 2008 as specifically provided in Sub Rule 1 of Rule 3 of the Amended Rules of 2008. Rule 11 of the said Amended Rules of 2008 also specifically reiterates the said position about upgradation and designation of the post of PCCF as the Head of Forest Force in the State of Madhya Pradesh as in other States and Union Territories. The High Court in the impugned orders passed in Writ Petition as well as in the Review Petition had thoroughly misdirected itself by applying the principle of “equal pay for equal work” placing reliance on the decision of this court in case of State of Punjab and Ors. Vs. Jagjit Singh and Ors. 2017 SCC 148 which had no application to the facts of the present case. It may be noted that this court has consistently held that the equation of post and determination of pay scales is the primary function of the executive and not the judiciary and therefore ordinarily courts will not enter upon the task of job evaluation which is generally left to the expert bodies like the Pay Commissions. This is because such job evaluation exercise may include various factors including the relevant data and scales for evaluating performances of different groups of employees and such evaluation would be both difficult and time consuming apart from carrying financial implications. Therefore it has always been held to be more prudent to leave such task of equation of post and determination of pay scales to be best left to an expert body. Unless there is cogent material on record to come to a firm conclusion that a grave error had crept in while fixing the pay scale for a given post and that the court’s interference was absolutely necessary to undo the injustice the courts would not interfere with such complex issues. A beneficial reference of the observations made in this regard in case of Secretary Finance Department Vs. West Bengal Registration Service Associations and Ors. 1993 Supl. 1 SCC 153 be made. As held in State of Haryana and Anr. Vs. Haryana Civil Secretariat Personal Staff Association 2002SCC 72 “equal pay for equal work” is not a fundamental right vested in any employee though it is a constitutional goal to be achieved by the Government. Pertinently the Administrative Tribunal after considering the relevant factual and legal aspects had rightly rejected the claim of the respondent no. 1 for granting the apex scale on the basis of “equal pay for equal work” in the O.A. filed by him. The said well considered just and proper order of the Tribunal was wrongly set aside by the High Court on extraneous grounds applying the principle of “equal pay for equal work” while exercising the power of superintendence under Article 227 of the Constitution of India. It is well settled legal position that the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. In the instant case the Tribunal had not committed any jurisdictional error nor any failure of justice had occasioned and hence the interference of the High Court in order passed by the Tribunal was absolutely unwarranted. In that view of the matter the impugned orders passed by the High Court being thoroughly misconceived in law and in facts deserve to be quashed and set aside and the same are hereby set aside. The appeals are allowed accordingly. NEW DELHI …..............................J.

The Nominated Person cannot be convicted in the absence of the Company: Supreme Court

The company cannot be convicted by the trial court and the court found that the “finding of the High Court to revisit the judgement will be unfair to the appellant/Nominated Person who has been facing trial for more than last 30 years”. This auspicious judgement was passed by the Hon’ble Justice Hemant Gupta in the matter of Hindustan Unilever Limited versus The state of Madhya Pradesh [Criminal no.- 578 of 2020]. The appeal was made to this court which challenged the order passed by the High Court of Madhya Pradesh, Jabalpur where the court remitted back to the trial court to revise the evidence adduced by both the parties to suit. Initially a complaint was filed by a food inspector in respect of Dalda Vanaspati Khajoor Brand Ghee manufactured by the Company, in context to the provisions of The Prevention of Food Adulteration Act, 1954. The sample of Vanaspati Ghee was taken from the godown of Lipton India Limited which was found to be adulterated as the melting point was found to be 41.8 degree centigrade which is higher than the normal range i.e. as against 31-41 degree centigrade. The court relied to the judgement passed by a three-judge Bench in the case of Aneeta Hada v. Godfather Travels & Tours Private Limited (2012 )5 SCC 661 which was as follows: “considered the question of conviction of the Directors in the absence of the Company in proceedings under Section 138 of the Negotiable Instruments Act, 188112 as also in the proceedings under Information Technology Act, 2000. This Court held that Section 141 of the NI Act dealing with offences by companies contemplates that every person who at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly”.

IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 715 OF 2020 ARISING OUT OF SLPNO. 578 OF 2020 HINDUSTAN UNILEVER LIMITED THE STATE OF MADHYA PRADESH W I T H CRIMINAL APPEAL NO. 716 OF 2020 ARISING OUT OF SLPNO. 806 OF 2020 JUDGMENT HEMANT GUPTA J The challenge in the present appeals is to an order passed by the High Court of Madhya Pradesh Jabalpur on 9.1.2020 whereby the revision filed by Shri Nirmal Sen appellant Nominated Officer of the Hindustan Unilever Limited1 was allowed however the matter was remitted back to the trial court to revisit the evidence adduced by both the parties so far it relates to the appellants Nirmal Sen and the Company. The operative part of the order reads thus “8. If the company Hindustan Lever Limited is acquitted of the charges the said benefit will also directly go to the applicant. In view whereof this Court finds a glaring and patent defect in the judgment of the trial Court as well as in the judgment of the appellate Court thus this Court in these premises finds it fit to interfere in the judgment of the trial Court in exercise of the revisional jurisdiction under Section 401(1) of Cr.P.C. hence this Court is inclined to set aside the conviction and sentence passed against the applicant being a nominated person of the company and remitted back the matter to the trial Court for passing fresh judgment considering the company Hindustan Lever Limited that had already been arrayed as an accused along with the applicant 9. In view of aforesaid discussions this revision is allowed. The impugned conviction and sentence passed against the applicant is hereby set aside and the matter is remitted back to the trial Court to revisit the evidence adduced by both the parties and also revisit its judgment dated 16 06 2015 so far as it relates with the applicant and company Hindustan Lever Limited thereafter again pass a separate judgment after providing opportunity of hearing to the applicant as well as the company Hindustan Lever Limited without getting prejudice with the discussions made by the appellate Court and this Court.” Brief facts leading to the present appeals are that a complaint Hereinafter referred to as “Company” was filed by Shri H.D. Dubey Inspector Food and Health on the basis of a sample taken on 7.2.1989 in respect of Dalda Vanaspati Khajoor Brand Ghee manufactured by the Company in terms of the provisions of The Prevention of Food Adulteration Act 19542 The sample of Vanaspati Ghee was taken from the godown of Lipton India Limited which was found to be adulterated as the melting point was found to be 41.8 degree centigrade which is higher than the normal range i.e. as against 31 41 degree centigrade. Initially the complaint was filed against the Directors of the Company as well as that of Lipton India Limited. However the said proceedings came to be decided by this Court in a judgment reported as R. Banerjee & Ors. v. H.D. Dubey Ors.3 wherein it was held as under “12. In the result the appeals are allowed. The order of the learned Magistrate as well as the impugned order of the High Court are set aside. The matters are remanded to the learned trial Magistrate with a direction to inquire into the question whether the nomination forms nominating H. Dayani and Dr Nirmal Sen were received and acknowledged by the Local Authority competent to receive and acknowledge the same. This question will be considered as a preliminary question and the learned magistrate will record a finding thereon. If he comes to the conclusion that the nomination forms had been acknowledged by the competent Local Authority he shall drop the proceedings against the Directors of the company other than the company and the nominated persons. If on the other hand he comes to the conclusion that the prescribed forms had been acknowledged by a person For short the ‘1954 Act’ 2 SCC 552 other than the competent Local Authority he will proceed against all the persons who are shown as the accused in the complaint i.e. all the Directors including the nominated person and the company. The appeals are allowed accordingly.” In terms of the directions of this Court it appears that the learned trial court passed an order on 6.7.1993 absolving the Directors of the Company and the prosecution was ordered to continue against the appellant Nirmal Sen. The said order is not on record but it appears that no proceedings were continued against the Company inasmuch as it has four accused namely Lipton India Limited Mohd. Saleem Harish Dayani and Nirmal Sen were arrayed as accused. The Act was then repealed and the Food Safety and Standards Act 20064 came into force on 23.8.2006 The learned trial court vide judgment dated 16.6.2015 convicted the appellant Nominated Officer under various provisions of the 1954 Act. The learned trial court held as under “58. That on the basis of the above complete evidence analysis it is certified that on the day of the incident the accused Dr. Nirmal Sen was a nominee of Hindustan Limited Company and the goods of the said company were given to the palm plantation oil vanaspati from Godown Rathore Clearing and Forwarding Agency Panagar Jabalpur Mohd. Salim. Sale of Vanaspati by Hindustan Liver Limited to the complainant food inspector H.D. Dubey went to purchase there. At the time when the said product was sold the adulteration was came in light and according to rule 32(f) of the Act For short the ‘2006 Act’ the details were not even duly marked which comes under the category of false impression in print of the packet or pouch 60. Therefore the accused Dr. Nirmal Sen was found to be guilty under Section 2(1G)(K) r w Section 32(F) 7(i) 16(A)(i) and Section 2(ia)(m) r w 7(i) 16(1)of Food Adulteration Act 1954 and Food Adulteration and Prevention Act under Section 14 r w Rule 2(A) r w A complete reading of the order passed by the trial court does not lead to an inference that the Company was represented at any stage during the course of trial. It is to be noted that in the aforementioned judgment there was no order passed by the learned trial court to convict the appellant Company of any offence. The appellant Nirmal Sen contested the proceedings and was convicted by the trial court In an appeal against the said judgment the learned Additional Sessions Judge held that the prosecution was found to be maintainable against Rathore Clearing and Forwarding Agency and the Company but the same was not mentioned in the impugned judgment and order. The Court held as under “31. ….As per order dated 6.7.1993 the Hindustan Lever Limited also has been held accused but erroneously it could not have been mentioned in the impugned judgment and order. As per law any company is a legal personality and it cannot be undergo imprisonment sentence. The appellant Nirmal Sen being the nominee for the offence of the aforesaid company has been punished. In such situation the appellant does not seem to be entitled for get any benefit only on the mere technical grounds.” The learned counsel for the appellant placed reliance on the judgment of this Court reported as Nemi Chand v. State of Rajasthan5 before the learned Additional Sessions Judge in support of the argument that pursuant to the repeal of the Act only punishment of fine has been contemplated under the 2006 Act. Thus since the provisions of the 2006 Act are beneficial to the accused the accused is entitled to such benefits provided by the 2006 Act. It was found that the decision in Nemi Chand has been passed in exercise of the jurisdiction conferred on the constitutional courts but the First Appellate Court does not have any such specific constitutional power. The Court rejected the applicability of the 2006 Act as the punishments imposed under the repealed Act have been saved by Section 97 of the 2006 Act The Court held as under “39. There is no doubt in it that as a result of amendment made by the post facto laws if the sentence given for any offence is lessened or rejected then the accused is entitled to get benefit of it under Article 20 of the Constitution of India. But is also mentionable that the accused has been prosecuted and sentenced under the “Act” of 1954 in the matter under consideration and in place of it the Food Safety and Standard Act 2006 has been implemented since 24.08.2006. By section 97of this new Act the Act of 1954 has been repealed but it also has been provided that action could be kept continued under the 17 SCC 448 repealed Act and any such penalty confiscation or punishment could be charged like it that as if this Act be not passed 40. Thus with regard to the offence occurred before the date of implementation of the new Act the provisions of the “Act” of 1954 have applicability and it cannot be held the punishment has been lessened by amending in the offence under Section 16 of the old Act by the new Act. It seems from the records that the case has remained pending for several years before the Ld Trial Court but several Stays submitted by the accused persons are also responsible for this delay and on this ground they are not entitled for any sympathy Keeping in view to the gravity of the offence the sentence awarded to the appellant Nirmal Sen by the Ld. Subordinate Court in the case seems in accordance with law and of appropriate and no need to interfere in it does not seem.” With the aforesaid discussion the learned Additional Sessions Judge affirmed the conviction of the appellant Nominated Officer but the conviction of the accused Harish Dayani and Mohd Saleem was set aside and they were acquitted The High Court in its order noticed that if the Company is acquitted of the charges the said benefit will also directly go to the appellant Nominated Officer. A glaring and patent defect in the judgment of the trial court as well as in the judgment of the appellate court was observed by the High Court. Thus the conviction and sentence passed against the appellant being a nominated person of the Company was set aside and the matter was remitted back to the trial Court for passing fresh judgment. Before this Court two fold arguments were raised by the learned counsels for the appellants. Dr. Abhishek Manu Singhvi learned senior counsel appearing on behalf of the appellant Nominated Officer argued that the appellant was charged for the violation of Section 2(ia)(m) read with Section 7(i) of the Act. Such violation attracted a sentence of not less than six months and up to 3 years and a fine of Rs.1 000 under Section 16(1)(a)(i) whereas under the 2006 Act the punishment of such adulteration which is related to only higher melting point is fine of Rs.5 lakhs and Rs.1 lakh under Sections 3(1)(zx) and 3(1)(i) respectively. The reliance is placed upon judgments of this Court in T. Barai v. Henry Ah Hoe & Anr.6 Nemi Chand and Trilok Chand v. State of 12. Mr. Siddharth Luthra learned senior counsel for the appellant Company raised an argument that the Company was not convicted by the trial court. Therefore the High Court in revision could not have passed an order of retrial more so when the Company was not given any notice of being heard. Since there was no order of conviction by the trial court as also no opportunity of hearing was given such order is in contravention of sub sectionof Section 401 of the Code of Criminal Procedure 1 SCC 177 Criminal Appeal No. 18310 decided on 1.10.2019 19738. Section 401of the Code reads thus “401(2). No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.” 13. We do not find any merit in the arguments raised by Dr. Singhvi with respect to the punishment provided under the 2006 Act. The judgment of this Court in T. Barai is consequent to amendment in the Act when Section 16A was inserted by the Parliament Similarly the judgment in Nemi Chand was a judgment arising out of the amendment in the Act only. The benefit of amendments in the Act has been rightly granted to the accused in an appeal arising out of the proceedings under the Act. But in the present case the Act has been repealed by Section 97 of the 2006 Act however the punishments imposed under the Act have been protected. Section 97 of the 2006 Act which came into force on 5.8.2011 is as follows “97. Repeal and savings.—(1) With effect from such date as the Central Government may appoint in this behalf the enactment and orders specified in the Second Schedule shall stand repealed Provided that such repeal shall not affect:— i) the previous operations of the enactment and orders under repeal or anything duly done or suffered thereunder or ii) any right privilege obligation or liability acquired For short the ‘Code’ accrued or incurred under any of the enactment or orders under repeal or iii) any penalty forfeiture or punishment incurred in respect of any offences committed against the enactment and orders under repeal or iv) any investigation or remedy in respect of any such penalty forfeiture or punishment and any such investigation legal proceedings or remedy may be instituted continued or enforced and any such penalty forfeiture or punishment may be imposed as if this Act had not been passed 2) If there is any other law for the time being in force in any State corresponding to this Act the same shall upon the commencement of this Act stand repealed and in such case the provisions of Section 6 of the General Clauses Act 1897shall apply as if such provisions of the State law had been repealed 3) Notwithstanding the repeal of the aforesaid enactment and orders the licences issued under any such enactment or order which are in force on the date of commencement of this Act shall continue to be in force till the date of their expiry for all purposes as if they had been issued under the provisions of this Act or the rules or regulations made thereunder 4) Notwithstanding anything contained in any other law for the time being in force no court shall take cognizance of an offence under the repealed Act or orders after the expiry of a period of three years from the date of the commencement of this Act.”affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment and any such investigation legal proceeding or remedy may be instituted continued or enforced and any such penalty forfeiture or punishment may be imposed as if the Repealing Act or Regulation had not been passed.” In terms of Section 6 of the General Clauses Act 1897 unless dif ferent intention appears the repeal of a statute does not affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability penalty forfeiture or pun ishment and any such investigation legal proceeding or remedy may be instituted continued or enforced and any such penalty forfeiture or punishment may be imposed as if the Repealing Act or Regulation had not been passed. But in the 2006 Act the re peal and saving clause contained in Section 97 and of the Interpretation Act of England. It was held as under: “6. Under the law of England as it stood prior to the Interpretation Act of 1889 the effect of repealing a statute was said to be to obliterate it as completely from the records of Parliament as if it had never been passed except for the purpose of those actions which were commenced prosecuted and concluded while it was an existing law. A repeal therefore without any saving clause would destroy any proceeding whether not yet begun or whether pending at the time of the enactment of the Repealing Act and not already prosecuted to a final judgment so as to create a vested right Vide Crawford on Statutory Construction p. 599 600w To obviate such results a practice came into existence in England to insert a saving clause in the repealing statute with a view to preserve rights and liabilities already accrued or incurred under the repealed enactment. Later on to dispense with the necessity of having to insert a saving clause on each occasion Section 38(2) was inserted in the Interpretation Act of 1889 which provides that a repeal unless the contrary intention appears does not affect the previous operation of the repealed enactment or anything duly done or suffered under it and any investigation legal proceeding or remedy may be instituted continued or enforced in respect of any right liability and penalty under the repealed Act as if the Repealing Act had not been passed. Section 6 of the General Clauses Act as is well known is on the same lines as Section 38(2) of the Interpretation Act of England 9. The offence committed by the respondent consisted in filing a false claim. The claim was filed in accordance with the provision of Section 4 of the Ordinance and under Section 7 of the Ordinance any false information in regard to a claim was a punishable offence. The High Court is certainly right in holding that Section 11 of the AIR 1955 SC 84 Act does not make the claim filed under the Ordinance a claim under the Act so as to attract the operation of Section 7. Section 11 of the Act is in the following “The East Punjab RefugeesOrdinance 48 is hereby repealed and any rules made notifications issued anything done any action taken in exercise of the powers conferred by or under the said Ordinance shall be deemed to have been made issued done or taken in exercise of the powers conferred by or under this Act as if this Act had come into force on 3rd day of March 1948” .The truth or falsity of the claim has to be investigated in the usual way and if it is found that the information given by the claimant is false he can certainly be punished in the manner laid down in Sections 7 and 8 of the Act. If we are to hold that the penal provisions contained in the Act cannot be attracted in case of a claim filed under the Ordinance the results will be anomalous and even if on the strength of a false claim a refugee has succeeded in getting an allotment in his favour such allotment could not be cancelled under Section 8 of the Act. We think that the provisions of Sections 47 and 8 make it apparent that it was not the intention of the Legislature that the rights and liabilities in respect of claims filed under the Ordinance shall be extinguished on the passing of the Act and this is sufficient for holding that the present case would attract the operation of Section 6 of the General Clauses Act. It may be pointed out that Section 11 of the Act is somewhat clumsily worded and it does not make use of expressions which are generally used in saving clauses appended to repealing statutes but as has been said above the point for our consideration is whether the Act evinces an intention which is inconsistent with the continuance of rights and liabilities accrued or incurred under the Ordinance and in our opinion this question has to be answered in the In another judgment reported as Tiwari Kanhaiyalal & Ors. v Commissioner of Income Tax Delhi10 the assessments were completed under the Income Tax Act 1922 after the Income Tax Act 1961 came into force. There was search on the premises of the assessee. The revised returns were filed after the Income Tax Act 1961 came into force. The penalty proceedings were initiated and it was levied under the 1961 Act. Later the complaints were filed alleging commission of the offences under Section 277 of 1961 Act. Another set of complaints were filed under the Income Tax Act 1922. This Court held that the complaints under the 1922 Act remains unaffected. It was held as under “7. It is advisable to discuss and dispose of a new point which arose during the hearing of these appeals. Sub sectionof Section 297 of the 1961 Act repealed the 1922 Act including Section 52. In sub section no saving seems to have been provided for the launching of the prosecution under the repealed Section 52 of the 1922 Act. It does not seem correct to take recourse to clauseof Section 297(2) to make the offences come under Section 277 of the 1961 Act as was endeavoured to be done by the respondent in the first 12 complaint petitions. But then from no clause under sub sectionof Section 6 of the General Clauses Act….” Thus in view of Section 97 of the 2006 Act as also under Section 6 of the General Clauses Act 1897 the proceedings would 10 4 SCC 101 continue under the Act. No benefit can be taken under the 2006 Act as the prosecution and punishment under the Act is protected The judgment of this Court in Trilok Chand is the only judgment which has given benefit of the 2006 Act and the sentence was imposed by imposing a fine of Rs.5 000 . The attention of the Court was not drawn to Section 97 of the 2006 Act which protects the punishments given under the repealed Act. Therefore the order in Trilok Chand is on its own facts. However we find merit in the argument of Mr. Luthra that the order of remand by the High Court to the trial court against the Company cannot be sustained for the reason that such an order was passed without giving an opportunity of hearing as contemplated under Section 401(2) of the Code. The question thus now narrows down as to whether the course adopted by the High Court to remand the matter to the trial court after more than 30 years to cure the defect which goes to the root of the trial though permissible in law is justified A three Judge Bench of this Court in Aneeta Hada v. Godfather Travels & Tours Private Limited11 considered the question of conviction of the Directors in the absence of the Company in proceedings under Section 138 of the Negotiable Instruments Act 188112 as also in the proceedings under Information Technology 11 5 SCC 661 12 For short the ‘NI Act’ Act 2000. This Court held that Section 141 of the NI Act dealing with offences by companies contemplates that every person who at the time the offence was committed was in charge of and was responsible to the company for the conduct of the business of the company as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. This Court considering the said provision held as under “38. From the aforesaid pronouncements the principle that can be culled out is that it is the bounden duty of the court to ascertain for what purpose the legal fiction has been created. It is also the duty of the court to imagine the fiction with all real consequences and instances unless prohibited from doing so. That apart the use of the term “deemed” has to be read in its context and further the fullest logical purpose and import are to be understood. It is because in modern legislation the term “deemed” has been used for manifold purposes. The object of the legislature has to be kept in mind 56. We have referred to the aforesaid passages only to highlight that there has to be strict observance of the provisions regard being had to the legislative intendment because it deals with penal provisions and a penalty is not to be imposed affecting the rights of persons whether juristic entities or individuals unless they are arrayed as accused. It is to be kept in mind that the power of punishment is vested in the legislature and that is absolute in Section 141 of the Act which clearly speaks of commission of offence by the company. The learned counsel for the respondents have vehemently urged that the use of the term “as well as” in the section is of immense significance and in its tentacle it brings in the company as well as the Director and or other officers who are responsible for the acts of the company and therefore a prosecution against the Directors or other officers is tenable even if the company is not arraigned as an accused. The words “as well as” have to be understood in the context 58. Applying the doctrine of strict construction we are of the considered opinion that commission of offence by the company is an express condition precedent to attract the vicarious liability of others. Thus the words “as well as the company” appearing in the section make it absolutely unmistakably clear that when the company can be prosecuted then only the persons mentioned in the other categories could be vicariously liable for the offence subject to the averments in the petition and proof thereof. One cannot be oblivious of the fact that the company is a juristic person and it has its own respectability. If a finding is recorded against it it would create a concavity in its reputation. There can be situations when the corporate reputation is affected when a Director is indicted 59. In view of our aforesaid analysis we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act arraigning of a company as an accused is imperative. ….” Section 17 of the Act reads as under “17. Offences by companies—(1) Where an offence under this Act has been committed by a company— a) the person if any who has been nominated under sub section to be in charge of and responsible to the company for the conduct of the business of the company or ii) where no person has been so nominated every person who at the time the offence was committed was in charge of and was responsible to the company for the conduct of the business of the company and b) the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished Provided that nothing contained in this sub section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of such Clauseof Sub Sectionof Section 17 of the Act makes the person nominated to be in charge of and responsible to the company for the conduct of business and the company shall be guilty of the offences under clause of Sub Section of Section 17 of the Act. Therefore there is no material distinction between Section 141 of the NI Act and Section 17 of the Act which makes the Company as well as the Nominated Person to be held guilty of the offences and or liable to be proceeded and punished accordingly. Clauses and are not in the alternative but conjoint. Therefore in the absence of the Company the Nominated Person cannot be convicted or vice versa. Since the Company was not convicted by the trial court we find that the finding of the High Court to revisit the judgment will be unfair to the appellant Nominated Person who has been facing trial for more than last 30 years. Therefore the order of remand to the trial court to fill up the lacuna is not a fair option exercised by the High Court as the failure of the trial court to convict the Company renders the entire conviction of the Nominated Person as In view of the above the appeals are allowed and the order passed by the High Court is set aside. Resultantly the complaint is NEW DELHI NOVEMBER 5 2020 L. NAGESWARA RAO

A police officer has the power to investigate a non-cognizable offence also, only after obtaining the prior permission of the concerned magistrate: High Court of Uttarakhand.

Under Section 155 Cr.P.C. which provides for information as to non-cognizable cases, the police officer has no suo moto power to investigate the matter, but as soon as the 2 information is recorded by him, he will refer the informant to the Magistrate. However, the concerned magistrate can empower the police officer to investigate a non-cognizable offence. A single Judge bench comprising Hon’ble Justice R.C. Khulbe, in the matter of Nandan Kumar Mittal Versus State of Uttarakhand and others (Criminal Writ Petition No.1264 of 2021), dealt with a matter where the petitioner filed a criminal writ petition under Article 226 of the Constitution of India for quashing the FIR No.0261 of 2020, u/s 434 and 427 IPC, registered at P.S. Doiwala, District Dehradun. In the present case, from the FIR, it was clear that it was lodged under Sections 427 and 434 IPC; as per the First Schedule appended to the Cr.P.C., both these offences are non-cognizable; as per Chapter XII of Cr.P.C. Under Section 154 Cr.P.C. dealing with offence in cognizable cases is concerned, the concerned officer of the Police Station is bound to investigate the matter, whereas, as per Section 155 Cr.P.C. which provides for information as to non-cognizable cases, the police officer has no suo moto power to investigate the matter, but as soon as the information is recorded by him, he will refer the informant to the Magistrate and the magistrate if deems fit can empower the police officer to investigate such non-cognizable offence. The court observed – “since the offences u/s 427 and 434 IPC fall within the category of non-cognizable offences, the concerned officer of the police station had no power to lodge the information as per Section 154 Cr.P.C. nor did he have any power to investigate the matter without obtaining the prior permission of the concerned Magistrate.” Thereby the criminal petition was allowed.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Writ Petition No.12621 Nandan Kumar Mittal ….. Petitioner State of Uttarakhand and others ….Respondents Mr. Piyush Garg learned counsel for the petitioner. Mr. V.S. Rathore learned A.G.A. along with Mr. Pankaj Joshi learned B.H. for the State. Hon’ble R.C. Khulbe J. Heard learned counsel for the parties. This criminal writ petition has been filed under Article 226 of the Constitution of India for quashing the FIR No.02620 u s 434 and 427 IPC registered at P.S. Doiwala District Dehradun. From the perusal of the FIR it is clear that the said FIR was lodged under Sections 427 and 434 IPC as per the First Schedule appended to the Cr.P.C. both these offences are non cognizable as per Chapter XII of Cr.P.C. an Officer of the Police Station has a power to lodge the information under Section 154 in case of cognizable offence when an information is given regarding non cognizable offence before a police officer the police officer can reduce it in the prescribed format as per Section 155 Cr.P.C. there is a basic difference between the two as far as Section 154 Cr.P.C. dealing with offence in cognizable cases is concerned the concerned officer of the Police Station is bound to investigate the matter whereas as per Section 155 Cr.P.C. which provides for information as to non cognizable cases the police officer has no suo moto power to investigate the matter but as soon as the information is recorded by him he will refer the informant to the Magistrate however as per the directions of the Magistrate certainly a police officer has the power to investigate a non cognizable offence also. As far as present case is concerned since the offences u s 427 and 434 IPC fall within the category of non cognizable offences the concerned officer of the police station had no power to lodge the information as per Section 154 Cr.P.C. nor did he have any power to investigate the matter without obtaining the prior permission of the concerned Magistrate. At this juncture it is relevant to reproduce the relevant extract of a judgment rendered by the Hon’ble Apex Court in the matter of “Keshav Lal Thakur vs. State of Bihar” reported in11 SCC 557 which reads as under: “We need not go into the question whether in the facts of the instant case the above view of the High Court is proper or not for the impugned proceeding has got to be quashed as neither the police was entitled to investigate into the offence in question nor the Chief Judicial Magistrate to take cognizance upon the report submitted on completion of such investigation. On the own showing of the police the offence under Section 31 of the Act is non cognizable and therefore the police could not have registered a case for such an offence under Section 154 Cr. P.C. Of course the police is entitled to investigate into a non cognizable offence pursuant to an order of a competent Magistrate under Section 155Cr. P.C. but admittedly no such order was passed in the instant case. That necessarily means that neither the police could investigate into the offence in question nor submit a report on which the question of taking cognizance could have arisen. While on this point it may be mentioned that in view of the Explanation to Section 2Cr. P.C. which defines complaint the police is entitled to submit after investigation a report relating to a non cognizable offence in which case such a report is to be treated as a complaint of the police officer concerned but that explanation will not be available to the prosecution here as that relates to a case where the police into a cognizable offence unlike the present one but ultimately finds that only a non cognizable offence has been made out.” Accordingly the criminal writ petition allowed. As a result the FIR No.0261 of 2020 lodged against the present petitioner u s 434 and 427 IPC registered at P.S. Doiwala District Dehradun is hereby quashed. Pending applications if any stand disposed of. 13.08.2021

The court does not inspire confidence with regard to their innocence and rejects pre-arrest bail to the petitioners arrested under Sections 304-B/34 IPC: High court of Patna

The petitioners were arrested under Section 304-B, “Dowry death”, section 34IPC, “Acts done by several persons in furtherance of common intention”. This is in connection with Banka (Barahat) PS Case No. 683 of 2019 dated 23.09.2019. This judgment was given in the high court of Judicature at Patna by honorable Mr. Justice Ahsanuddin Amanullah on the 5th of August 2021 in the case of Bhawani Devi others versus the state of Bihar criminal miscellaneous No.1440 of 2021, Mr. Md. Najmul Represented as the advocate for the petitioner and Ms. Pushpa Sinha 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, petitioner no.1 is the mother-in-law and petitioner no.2 and 3 are the brothers of the husband of the deceased. The petitioners have been accused of being party to the killing of the deceased as her body was recovered from a pond. The counsel for the petitioners held that the petitioners lived separately from the couple and have no connection with any foul play that has taken place. The couple was married years prior to the incident and they have two minor children and therefore no one in the right mind would indulge in such a crime. It was also held that there has been no past abuse from the husband and no complaint as well regarding the same before any authority. According to the FIR, there was a demand for dowry, and the deceased was tortured before her death but there is no evidence to prove the same. As the pound was in the temple located at the village, the deceased might have slipped and drowned in the pond and therefore there was no foul play by the petitioners, the husband has been held in custody and the petitioners have no other criminal antecedent. The Additional Public Prosecutor held that according to the circumstances it clearly indicates the role played by the petitioners in the crime. It was transpired that the family members all living in the same house and if the deceased had not returned home, it was the duty of the family to look for her or approach the police for the same which they failed to do. The informant who was residing in a different place heard the news and came to the place at 11:00 AM and found the body in the pond. This shows that the petitioners committed the crime because it is natural to look for a missing family member. Therefore, the family of the husband of the deceased has much more explaining to do regarding the fact she was living in the matrimonial home. The high court concluded that “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. The conduct of the petitioners, as has been submitted by learned APP, does not inspire confidence with regard to their innocence. For reasons aforesaid, the Court is not inclined to grant pre-arrest bail to the petitioners.  Accordingly, the petition stands dismissed”

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.14421 Arising Out of PS. Case No. 683 Year 2019 Thana BANKA District Banka Bhawani Devi aged about 55 years wife of Anirudh Sah Chandan Shah @ Chandan Kumar Sahaged about 35 years Rohit Kumar @ Rohit Sahaged about 28 years both sons of Anirudh All resident of Village Parghari P.S. Dhoriya Dist. Banka ... Petitioner s The State of Bihar For the Petitioner s For the State Mr. Md. Najmul Hodda Advocate Ms Pushpa Sinha APP CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ... Opposite Party s Date : 05 08 2021 ORAL JUDGMENT The matter has been heard via video conferencing. 2. The case has been taken up out of turn on the basis of motion slip filed by learned counsel for the petitioners on 30.07.2021 which was allowed. 3. Heard Mr. Md. Najmul Hodda learned counsel for the petitioners and Ms. Pushpa Sinha learned Additional Public Prosecutorfor the State 4. Learned counsel for the petitioners submitted that the petitioner no. 3 has been arrested and he may be permitted to withdraw the petition on his behalf. In view thereof the petition on behalf of petitioner no. 3 Rohit Kumar @ Rohit Sah stands Patna High Court CR. MISC. No.14421 dt.05 08 2021 disposed of as withdrawn and is restricted to petitioners no. 1 and 2 namely Bhawani Devi and Chandan Sah @ Chandan 5. The petitioners apprehend arrest in connection with BankaPS Case No. 6819 dated 23.09.2019 instituted under Sections 304 B 34 of the Indian Penal Code 6. The petitioner no. 1 is the mother in law and petitioners no. 2 and 3 are the brothers of the husband of the deceased. The allegation against them is of being party to killing her as the body was found in a pond. 7. Learned counsel for the petitioners submitted that they are separate in mess and residence and have no connection with any foul play if at all it has taken place. It was submitted that the marriage took place six years prior to the incident and there are two minor children also born out of the wedlock and thus there was no occasion to commit such crime. Further it was submitted that in the past there has been no complaint before any authority though it has been mentioned in the FIR that there was demand for dowry and the victim was tortured but without any supporting material. Learned counsel submitted that the pond was of the temple in the village and the deceased may have slipped and fallen in the pond leading to her death by Patna High Court CR. MISC. No.14421 dt.05 08 2021 drowning but there was no foul play much less by the petitioners. It was submitted that the husband of the deceased is in custody since 23.09.2019. It was further submitted that the petitioners have no other criminal antecedent. 8. Learned APP submitted that the circumstances indicate the involvement of the petitioners and it appears that a crime was committed for the reason that they were family members of the deceased living in the same house and if the deceased had gone somewhere and had not returned it was their duty to look for her or to intimate the police that she was missing and the informant who lives somewhere else was informed at 11.00 AM and thereafter when he came the body was still lying in the pond which indicates that the petitioners were either totally not bothered or because of their role had not intimated any authority. It was submitted that the natural conduct of a person would be that if any person of the household is missing they would look for the person and would also inform the authorities but in the present case the victim having been out of the house for a long period and the body found in the village pond near the temple it cannot be accepted they were unaware of such development for the reason that the informant came to know at 11.00 AM and then it must have Patna High Court CR. MISC. No.14421 dt.05 08 2021 been taken some time for him to reach the village and when he came the body was still lying in the pond which clearly shows that the family of the husband of the deceased have much to explain as she was living in the matrimonial home. 9. 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. The conduct of the petitioners as has been submitted by learned APP does not inspire confidence with regard to their innocence 10. For reasons aforesaid the Court is not inclined to grant pre arrest bail to the petitioners 11. Accordingly the petition stands dismissed Ahsanuddin Amanullah J J. Alam

To prove the defence, the appellant does not need to present any direct or positive proof: Gauhati High Court

It is not necessary for the accused person to prove his case beyond a reasonable doubt or in default to incur a verdict of guilty. The onus of proof lies upon the accused person is to prove his case by a preponderance of probability. The judgment was passed by the High Court of Gauhati in the case of Radharaman Bhowmik v. State of Assam [CRL.A(J)/5/2018] by Division Bench consisting of Hon’ble Justice Mir Alfaz Ali & Justice Manish Choudhury. The facts of the case are that the appellant married the victim and they were also blessed with two children, however, their conjugal life was not very happy and eventually on the date of occurrence, the appellant assaulted the victim being his wife demanding money whereby caused serious injury, to which the victim succumbed, FIR was lodged, on the basis of which police registered Case under Sections 498(A)/304(B), IPC and on completion of the investigation, submitted charge sheet against the appellant. Learned Amicus Curiae while assailing the judgment does not contest the finding of the learned trial Court holding that the injury leading to the death of the victim was caused by the present appellant. However, the contention of the learned Amicus Curiae is that there was no intention to cause death and, as such, the ingredients of the offence of murder as defined under Section 300, Cr PC was not present. Therefore, the learned trial Court ought not to have recorded conviction under Section 302, IPC. At best, according to the learned Amicus Curiae, it was a case of culpable homicide not amounting to murder punishable under Section 304 Part II, IPC. Counsel for defense is sought to be raised by the appellant to the effect that, the injury to the victim was caused accidentally and he did not have any intention to assault his wife, no evidence could be brought on record to substantiate the stand taken by the appellant.

Page No.# 1 5 HIGH COURT OF ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH) THE GAUHATI HIGH COURT Case No. : CRL.A(J) 5 2018 RADHARAMAN BHOWMIK S O. LT. ANIL CH. BHOWMIK R O. SHYAMAPRASAD ROAD P.S. KARIMGANJ DIST. KARIMGANJ ASSAM THE STATE OF ASSAM GHC GHY. Advocate for the Petitioner DR. B N GOGOI AMICUS CURIAE Advocate for the Respondent : PP ASSAM HONOURABLE MR. JUSTICE MIR ALFAZ ALI HONOURABLE MR. JUSTICE MANISH CHOUDHURY JUDGMENT & ORDER Heard Dr. B.N. Gogoi learned Amicus Curiae and Mr. M. Phukan learned Additional Public Prosecutor Assam. This jail appeal is directed against the judgment and order dated 25.09.2017 passed Page No.# 2 5 by the learned Sessions Judge Karimganj in Sessions Case no. 20 2015 whereby the learned Sessions Judge convicted the appellant under Section 302 Indian Penal Code and sentenced to rigorous imprisonment for life and fine of Rs. 500 with default stipulation. The prosecution case as reflected in the FIR in brief was that the appellant married the victim and they were also blessed with two children however their conjugal life was not very happy and eventually on the date of occurrence the appellant assaulted the victim being his wife demanding money whereby caused serious injury to which the victim succumbed. Exhibit 1 FIR was lodged by Munna Das on the basis of which police registered Karimganj Police Station Case no. 604 2014 under Sections 498(A) 304(B) IPC and on completion of the investigation submitted charge sheet against the appellant. In course of trial learned Sessions Judge framed charge against the appellant under Section 302 IPC which was abjured by him. The prosecution examined 9witnesses to substantiate the charge framed against the accused. On conclusion of the prosecution evidence the appellant was examined under Section 313 CrPC wherein the appellant had taken a plea that when quarrel ensued between him and his wife on family issues one Joy Dhar came to interfere whereupon he got agitated and dealt a blow aiming at Joy Dhar. In the meantime the victim came between them and the blow given by the appellant landed on the head of the victim which caused the injury. Thus the plea of the appellant in the statement recorded under Section 313 CrPC was that he had no intention to cause any injury to his wifeand the injury to the victim was caused accidentally. Upon appreciation of the evidence and materials brought on record the learned Sessions Judge convicted the appellant and awarded sentence as indicated above. Learned Amicus Curiae while assailing the impugned judgment does not contest the finding of the learned trial Court holding that the injury leading to death of the victim was caused by the present appellant. However the contention of the learned Amicus Curiae is that there was no intention to cause death and as such the ingredients of the offence of murder as defined under Section 300 CrPC was not present. Therefore the learned trial Court ought not to have recorded conviction under Section 302 IPC. At best according to the learned Amicus Curiae it was a case of culpable homicide not amounting to murder punishable under Section 304 Part II IPC. Page No.# 3 5 On our assessment of the evidence we find that the learned Sessions Judge basically relied upon the oral testimony of P.W.4 and P.W.5 who are the children of the deceased besides the medical evidence as well as the statement of the accused appellant recorded under Section 313 CrPC. P.W.4 deposed that in the morning when she woke up she had noticed that her parents were quarrelling. The victim sent her to wash her face. Accordingly she came out and her mother started cleaning the utensils. At that point of time she heard the scream of her mother and immediately rushed to the place of occurrence and found her mother falling on the ground. She had also noticed her father running away from the place of occurrence throwing away the rod which was in his hand. Immediately she informed the P.W.1 her maternal uncle about the occurrence. The evidence of P.W.4 who is none but the daughter of the accused and also the victim remained unshaken. P.W.5 the son of the victim also stated in the same tune that he had noticed his parents quarrelling in the morning and when he went to wash his face he heard the scream of his mother and immediately came into the room and found the victim falling on the ground. He also stated to have seen the appellant hurriedly leaving the room by throwing the rod which was in his hand. P.W.8 the Doctor who conducted the autopsy found a single injury on the head which in the opinion of the Doctor was caused by a blunt object. As already indicated above the stand taken by the appellant in his statement recorded under Section 313 CrPC was that when there was quarrel between the husband and wife one Joy Dhar intervened whereupon he got angry and dealt a blow aiming at Joy Dhar with a rod which accidentally landed on the victim. It is the trite law that statement recorded under Section 313 CrPC though not evidence stricto sensu such statement can be used for or against the accused in view of sub Section of Section 313 CrPC. Therefore the evidence of P.W.4 and P.W.5 coupled with the own admission of the appellant in his statement recorded under Section 313 CrPC clearly established that the injury sustained by the victim Page No.# 4 5 was inflicted by the appellant. The medical evidence further reinforced the evidence of P.W.4 and P.W.5 with regard to the weapon used and that the injury was inflicted by none other than the appellant himself. Though a defence is sought to be raised by the appellant to the effect that the injury to the victim was caused accidentally and he did not have any intention to assault his wife no evidence could be brought on record to substantiate the stand taken by the appellant with regard to presence of Joy Dhar at the place of occurrence. We are aware of the legal proposition that it is not necessary for the appellant to adduce any direct or positive evidence to establish his defence. The same can also be proved by the evidence and material brought on record by the prosecution. But we find nothing in the record to substantiate the plea taken by the accused during examination under Section 313 CrPC with regard to the presence of Joy Dhar. Therefore in our considered view the evidence of P.W.4 and P.W.5 as well as the medical evidence coupled with the statement of the victim recorded under Section 313 CrPC leaves no room for doubt that the appellant inflicted the injury to the victim which caused her death. What is however evident from the records and the evidence of P.W.4 and P.W.5 is that there was a quarrel between the husband and wife. In the statement recorded under Section 313 CrPC also the appellant admitted that there was quarrel between him and the victim. The admission of the accused and the explanation put forward by him regarding the cause of quarrel ensued between them coupled with the testimony of the P.W.4 and P.W.5 demonstrate that the appellant inflicted the injury to his wife with the rod which was available in his house in course of quarrel at the heat of passion. Evidently the appellant did not give the second blow. The nature of weapon used single blow given and that there was quarrel which led to the assault speaks loud and clear that there was no intention on the part of the accused to cause death of the victim being his wife or to cause such injury as to likely to cause her death. Evidently the injury was inflicted in course of quarrel at the heat of passion. Therefore the present case in our considered view squarely comes within the sweep of Exception 4 to Section 300 IPC and as such the offence committed by the accused by inflicting the injury to his wife which caused her death comes only within the definition of culpable homicide not amounting to murder. When there was no intention to cause death or any intention to cause such injury which is likely to cause death the conviction under Section Page No.# 5 5 302 IPC recorded by the learned Sessions Judge cannot be sustained. Accordingly we set aside the conviction of the appellant recorded under Section 302 IPC. Instead we convict him under Section 304 Part II IPC. It reveals from the record that the appellant has been in jail for about 7years and as such we are of the view that the period which the accused had already undergone in custody would commensurate with the gravity of offence. Accordingly we modify the sentence of imprisonment and sentence the appellant to imprisonment for the period which he has already undergone during the investigation and trial. We also reduce the default sentence for non payment of fine to 15 days. Upon due payment of fine or after completing the default sentence the appellant shall be released if not required in any other case. The appeal stands partly allowed. Appreciating the assistance rendered by Dr. B.N. Gogoi learned Amicus Curiae we hereby provide that he will be entitled to Rs. 7 500 as professional fee which shall be paid to him by the Gauhati High Court Legal Services Committee upon production of a copy of this Send down the LCR. Comparing Assistant

Mandatory to recompense the loss of forest land to the aggrieved: Karnataka High Court

It is compulsory for the Government to compensate and rehabilitate those individuals, from whom land has been acquired by the Government in order to execute a Government Project. A division bench comprising of Justice BV Nagarathna and Justice JM Khazi, while adjudicating the matter Sri KA Ravi Chengappa v. The Principal Secretary; [WRIT PETITION No.12038/2020 (KLR-RES)], dealt with the issue of compensation to the victims of land grabbing by the Government. The petitioners in the above case contended that an extent of land had not been physically handed over by the revenue department to the petitioners. The case devolves around the fact that, while constructing the Harangi Dam, the State Government had released 900 acres of land from the nearby forest area. As per a government order, in order to rehabilitate the persons who had lost their lands on account of the construction of Harangi Dam/Reservoir Project, a certain amount of land of the Revenue Department was to be handed over to the Forest Department to distribute it amongst those individuals claiming rehabilitation of their land. The grievance of the petitioners ventilated in this Public Interest Litigation is that the government order had not been given effect and they had not yet received their share of the land, despite there being a lapse of four decades. A legal notice was issued to the respondents on behalf of the petitioners for compliance of the aforesaid government order. The learned counsel appearing for the petitioners submitted that all that the petitioners are seeking is, the said transfer be completed by entering the name of the Forest Department in the official records and by taking all incidental and ancillary steps for completely handing over the control of the said lands to the Forest Department by the Revenue Department. The counsel also submitted that even after lapse of over four decades and nearing half a century, the respondent-State and its Authorities have not given effect to their own orders. The learned counsel appearing for the respondents stated that there has been no formal handing over of the lands to the Forest Department, inasmuch as name of the Forest Department has not been indicated in the official record, but the Forest Department is at liberty to take charge of the said extent of lands and in that regard appropriate directions may be issued.

: 1 : IN THE HIGH COURT OF KARNATAKA BENGALURU DATED THIS THE 08TH DAY OF APRIL 2021 THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA THE HON’BLE MS. JUSTICE J.M.KHAZI WRIT PETITION No.12038 2020... PETITIONERS SRI K.A. RAVI CHENGAPPA AGED ABOUT 56 YEARS S O. K.N. AIYAMMA THE PRESIDENT OF CAUVERY SENE1ST FLOOR SUMUKH COMPLEX CHICKPET MADIKERI 571 201 KODAGU DISTRICT. SRI. C.C. DEVAIAH AGED ABOUT 42 YEARS S O. LATE C.U. CHENGAPPA R O. BITTANGALA VILLAGE AND POST VIRAJPET TALUK 571 218. KODAGU DISTRICT. BY SRI. K.S. BHEEMAIAH ADVOCATE) THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF KARNATAKA DEPARTMENT OF REVENUE MULTISTORY BUILDING BENGALURU 560 001. THE DEPUTY COMMISSIONER KODAGU DISTRICT MADIKERI 571 201. CHIEF SECRETARY FOREST ENVIRONMENT AND ECOLOGY GOVERNMENT OF KARNATAKA : 2 : VIDHANA SOUDHA BANGALORE 560 001. PRL. CHIEF CONSERVATOR OF FOREST ARANYA BHAWAN 18TH CROSS MALLESWARAM BANGALORE 560 003. DEPUTY CONSERVATOR OF FOREST MADIKERI DIVISION MADIKERI ARANYA BHAWAN KODAGU DISTRICT 571 201. THE CHIEF SECRETARY GOVERNMENT OF KARNATAKA VIDHANA SOUDHA BANGALORE 560 001. BY SMT.VANI H. ADDL. GOVERNMENT ADVOCATE) ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R 1 AND 2 TO TRANSFER THE REVENUE ENTRIES IN THE NAME OF THE FOREST DEPARTMENT OF KODAGU DISTRICT IN RESPECT OF THE LAND TO THE EXTENT OF 11 722.29 HECTARES OF C AND D CATEGORY OF LAND IN KODAGU DISTRICT AS COMMUNICATION MADE BY THE R 2 TO THE RESPONDENT NO.1 LETTER DATED 26.06.2012 AT ANNEXURE B. THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY NAGARATHNA J. MADE THE O R D E R This writ petition is filed in Public Interest. Petitioner No.1 is stated to be the President of a voluntary organization Cauvery Sene Kodagu District which is engaged in the welfare of the people of Kodagu : 3 : District while petitioner No.2 is a person who is engaged in fighting for good causes in the District of Kodagu and has joined hands with petitioner No.1 for a public cause. It is the case of the petitioners that an extent of land measuring 11 722.29 Hectares of C and D category have not been physically handed over by the Revenue including respondent No.2 to the Forest Department by entering the name of the Forest Department in the revenue records pursuant to Government Order No.RD 106 LGP 88 dated 20.07.1994. Hence a direction is sought in that regard. the petitioners the Harangi Dam Reservoir built during 1970’s is located near Hudgur Village Somwarpet Taluk Kodagu District which is about 9 kms. away from Kushalnagar Town. The Harangi Dam is situated in the Western Ghats of Kodagu District which is a catchment area of Harangi River which is about 717 kms. in length. The Harangi river ultimately emerges with Cauvery River in Kodagu District near Kudige in Somwarpet Taluk. 4. While constructing the Harangi Dam Reservoir the State Government had released 900 acres of land from : 4 : the Yadavanadu forest area and 3000 acres from the Atturu forest area as per the Government Order No.AFD 71FGL 72 dated 12.05.1972 in order to rehabilitate the persons who had lost their lands on account of the construction of Harangi Dam Reservoir Project. In exchange of the said land the State Government ordered that 18 000 acres of land of Revenue Department shall be handed over to the Forest Department by Proceedings of the Government of Mysore dated 12.05.1972in pursuance of the Government Orders dated 12.05.1972 and 20.07.1994. 9. We have heard the learned counsel for the petitioners Sri K.S.Bheemaiah and the learned Additional Government Advocate for the respondents and perused the material on record. 10. Learned counsel for the petitioners submitted that the averments made by the petitioners in the writ petition supported by the orders of the State Government : 7 : would clearly indicate that an extent of 11.722.29 Hectares of C and D lands have been transferred from the Revenue Department to the Forest Department. There is no dispute with regard to the said fact. All that the petitioners are seeking is the said transfer be completed by entering the name of the Forest Department in the official records and by taking all incidental and ancillary steps for completely handing over the control of the said lands to the Forest Department by the Revenue Department. He submitted that even after lapse of over four decades and nearing half a century the respondent State and its Authorities have not given effect to their own orders. 11. He submitted that the Hon’ble Supreme Court in the case of T.N.Godavarman Thirumulkpad vs. Union of India and Others2 SCC 267] and several other decisions have emphasized the need to not only preserve but enhance the forest area in the Country. When the State Government has taken a categorical decision and passed orders dated 12.05.1972 as well as 20.07.1994 for the purpose of handing over 11.722.29 Hectares of C and D lands to the Forest Department in order to compensate the for construction of the Harangi : 8 : Dam Reservoir Project second respondent and all other Authorities ought to have complied with the said orders of the State Government. Therefore a direction may be issued in that regard. 12. Learned Additional Government Advocate appearing for the respondents Authorities did not contradict the orders passed by the State Government on 12.05.1972 as well as on 20.07.1994. She however submitted that there has been no formal handing over of the lands to the Forest Department inasmuch as name of the Forest Department has not been indicated in the official record but the Forest Department is at liberty to take charge of the said extent of lands and in that regard appropriate directions may be 13. We have considered the submissions of the learned counsel for the respective parties and we find that the object and purpose of issuance of the Government Orders dated 12.05.1972 and 20.07.1994 must be given effect to and fulfilled inasmuch as in order to recompence the loss of the forest land due to the construction of the Harangi Dam Reservoir Project the State Government in its wisdom transferred totally 11.722.29 Hectares of C and D : 9 : revenue lands to the Forest Department. Ultimately the loss of forest land for the purpose of construction of the project led to the State Government to compensate the same and the extent of 11.722.29 Hectares of C and D lands were transferred to the Forest Department but unless and until the said lands are indicated as forest lands in the official records the same would not acquire the status of forest lands. For immediate reference the Government Order dated 12.05.1972 is extracted as under: “ORDER NO.AFD.71 FGL.72 DATED BANGALORE THE 12TH MAY 72. Preamble: In the proceedings of the meeting held in the chambers of the Commissioner for Land Reforms and EX officio Secretary to Government of Mysore. Revenue Department on 7th January 1972 it has been decided that in area of 3 900 acres of Forest land may be released for the resettlement of the expropriated ryots of Harangi Reservoir Project. O R D E R Government is accordingly pleased to release an area of 900 acres of Forest land in Sulebavi area of Yedavanad and 3 000 acres of forest land in Athur Reserve Forests and surrender it to the Revenue Department for being granted to the affected ryots : 10 : under the land grant Rules 1969 subject to the condition that the Revenue Department has to hand over 18 000 acres of land in Coorg District to Forest Department immediately in pursuance of government order No.RD 52 LAD 62 dated 1 8 1964.” In this regard it would be useful to refer to the definition of Forest which has been given by the Hon’ble Supreme Court the case of T.N.Godavarman Thirumulkpad vs. Union of India and Others reported in 1997) 2 SCC 267] under the provisions of the Forest Conservation Act 1980 which is a Central Act. The Hon’ble Supreme Court has held that the expression “forest” must have within its scope and ambit not only forest as understood in the dictionary sense but also any area recorded as forest in the Government record irrespective of the ownership. The provisions of the Forest Conservation Act 1980 for the conservation of forests and the matters connected therewith must apply clearly to all forests so understood irrespective of the ownership or classification thereof. It would be relevant to extract paragraph No.4 of the said judgment which reads as under: “4. The Forest Conservation Act 1980 was enacted with a view to check further deforestation which ultimately results in ecological imbalance and therefore the provisions made therein for the : 11 : conservation of forests and for matters connected therewith must apply to all forest irrespective of the nature of ownership or classification thereof. The word “forest” must be understood according to its dictionary meaning. This description covers all statutorily recognized forest whether designated as reserved protected or otherwise for the purpose of Section 2(i) of the Forest Conservation Act. The term “forest land” occurring in Section 2 will not only include “forest” as understood in the dictionary sense but also any area recorded as forest in the Government record irrespective of the ownership. This is how it has to be understood for the purpose of Section 2 of the Act. The provisions enacted in the Forest Conservation Act 1980 for the conservation of forests and the matter connected therewith must apply clearly to all forests to understood irrespective of the ownership or classification thereof. This aspect has been made abundantly clear in the decisions of this Court in Ambica Quarry Works Vs. State of Gujarat Rural Litigation and Entitlement Kendra Vs. State of U.P. and recently in the order dated 29.11.1996 to manage generation. One of the viewpoints for sustaining : 18 : forest is a naturally functioning forest ecosystem. This view point takes a man and nature relationship to the point of endorsing to the extent possible the notion of letting forest develop and process without significant human intervention. A strong adoption of the naturalistic value system that whatever nature does is better than what humans do this is almost the “nature dominates man” perspective. Parks and natural reserve creations non intervention in insect disease and fire process and reduction of human activities are typical policy situation. This viewpoint has been endorsed by 1988 Forest Policy of Government of India. Yet another viewpoint recognises the pragmatic reality faced by the governments and the administrative namely trees don’t vote while people do. Some of the criteria reflecting key elements of ecological economic and social sustainability are: Conservation of biological diversity. Maintenance of productive capacity of forest water resources. carbon cycles. Maintenance of forest ecosystem health and Conservation and maintenance of soil and Maintenance of forest contribution to global Maintenance and enhancement of long term multiple socioeconomic benefits to meet the needs of societies. Legal institutional and economic framework conservation and : 19 : An expert dealing with principles and applications of forest valuation on the aspect of value of inputs and outcomes and conditions says : “Decision making in forest management requires that we understand the relative values of inputs outcomes and conditions. Cost values for inputs such as labour capital interest supplies legal advice trades and other management activities as well as the market value of existing timber stands are relatively easy to obtain. Outcomes or resulting condition values are more difficult but we need measures of the values of timberland recreation water wild life visual amenities biodiversity services ecological process to help guide management decisions. By understanding market social and other values of forests we can better allocate our scarce and valuable resources to attain the desired mix of outcomes and conditions." The emphasis is on ecosystem management philosophy that has greater emphasis on integration biological diversity and ecological processes. In respect of working economic values of the outcome it is said: real world forest management situations decision makers are faced with several alternatives and potentially large sets of criteria related to the ecological economic and social impacts of these alternatives. It would be : 20 : incomprehensible table that documented every physical biological economic and social outcome and condition resulting from each management alternative. Such information could include outcome levels for water yield sediment production and timber growth population trends for important wild life species recreation use for backcountry and Similarly information on the economic value of these outcomes can be estimated by means of the methods discussed in chapter 8 and added to impact table. To this avalanche of information we could add the impacts on the social well being of local and communities. The forest management analyst can easily overwhelm the decision makers and stakeholders with information." Dealing with fundamental of decision analyses to achieve ecological economic and social goals it is said that what is to be broadly kept in view is: Ecological and environmental goals are important to forest managers landowners and their stakeholders we need information about how decision alternatives affect such goals. These goals can be broadly stated as 1. Maintaining 2. Conservation of biological diversity : 21 : 3. Protecting and enhancing environmental In view of the above mandate of the Hon’ble Supreme Court the second respondent is directed to transfer the revenue entries in respect of 11.722.29 Hectares of C and D lands in the name of the Forest Department of Kodagu District in terms of the Government Orders dated 12.05.1972 and 20.07.1994 and to take all incidental and ancillary steps in that regard. The transfer in the official records in the name of the forest department Kodagu District shall be made within a period of one month from the date of receipt of the certified copy of this order. The Writ Petition is allowed in the aforesaid terms. Parties to bear their respective costs. JUDGE Sd Sd JUDGE

An arbitrator appointed by one of the parties may be appointed to act as a sole arbitrator: High Court Of New Delhi

The present petition has been filed by the petitioner seeking the appointment of Sole Arbitrator under the provisions of Sections 11(5) and 11(6) of the Arbitration and Conciliation Act, 1996. and the same issue was held in the judgement passed by a single bench judge comprising HON’BLE MR. JUSTICE SURESH KUMAR KAIT, in the matter SIVANSSH INFRASTRUCTURE DEVELOPMENT PVT. LTD  V.  ARMY WELFARE HOUSING ORGANIZATION dealt with an issue mentioned above. The petitioner was a person who was running a company whereas, The company registered under the provisions of Companies Act, 1956 claims to be engaged in construction-related activities including construction of various industrial, institutional, commercial as well as residential projects in India. The issue was that according to the petitioner, in December 2015, the respondent invited bids for the development of a Residential Complex to be spread over an area of 3.57 acres (approx.) for construction of 220 dwelling units to be constructed in 5 Towers located at Sector-6A, Vrindavan Awas Yojna, Lucknow, to which petitioner had submitted its bid, which was accepted by the respondent vide Acceptance Letter dated 02.06.2016. The total value of the awarded project according to the petitioner was Rs.100,59,48,977.35. The petitioner was instructed to commence the work at the Site on the even date with a Completion Period of 30 months expiring on 27.12.2018. However, since the respondent failed to hand over the site to the petitioner, a Revised Work Order dated 19.06.2017 was issued by the respondent, for the petitioner to commence the project on 12.08.2016 with the Completion Date as 11.02.2019. It was also mentioned that because of the various delays and defaults on the part of the respondent, the contract completion was delayed and consequently, the petitioner had to seek an extension of the project with the Completion Period on various occasions up to 31.05.2019 and by then, petitioner completed the ARB.P. 830/2021 work, It was submitted that since the respondent had been unwilling to release the longstanding dues of the Petitioner, Petitioner invoked arbitration vide letter dated 22.06.2021 under Clause 174 of GCC. Learned counsel for the petitioner submitted that appointment of Mr S.S. ARB.P. 830/2021 Bansal as Arbitrator violates dictum of Hon’ble Supreme Court in Perkins Eastman Architects DPC &Anr. vs. HSCC (India) Ltd. 2019 SCC Online SC 1517. Learned counsel has disputed the claims raised in the present petition, however, the existence of an arbitration clause is not disputed. And also they referred to the case which was held by The Hon’ble Supreme Court in Perkins Eastman Architects DPC &Anr. vs. HSCC (India) Ltd. 2019 SCC Online SC 1517. The court perused the facts and argument’s presented, it thought that- “Because of the above, the present petition is allowed. Accordingly, Mr Justice (Retd.) B.D.Ahmed is appointed sole Arbitrator to adjudicate the dispute between the parties. The arbitration shall be conducted under the Delhi International Arbitration Centre (DIAC). The learned Arbitrator shall ensure compliance with Section 12 of the Arbitration and Conciliation Act, 1996 before commencing the arbitration. With aforesaid directions, the present petition is accordingly disposed of”.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 26.10.2021 ARB.P. 830 2021 SIVANSSH INFRASTRUCTURE DEVELOPMENT PVT. LTD. Through: Mr. Navin Kumar Ms. Rashmeet Kaur & Ms. Priya Goyal Advocates Petitioner ARMY WELFARE HOUSING ORGANIZATION Respondent Through: Mr. A.K.Tewari & Mr. Tushar Upreti HON BLE MR. JUSTICE SURESH KUMAR KAIT JUDGMENT The present petition has been filed by petitioner seeking appointment of Sole Arbitrator under the provisions of Sections 11(5) and 11(6) of the Arbitration and Conciliation Act 1996. Petitioner company registered under the provisions of Companies Act 1956 claims to be engaged in construction related activities including construction of various industrial institutional commercial as well as residential projects in India. Respondent is a Society registered under the Societies Registration Act 1860. ARB.P. 830 2021 3. According to petitioner in December 2015 respondent invited bids for development of a Residential Complex to be spread over an area of 3.57 acresfor construction of 220 dwelling units to be constructed in 5 Towers located at Sector 6A Vrindavan Awas Yojna Lucknow to which petitioner had submitted its bid which was accepted by the respondent vide Acceptance Letter dated 02.06.2016. The total value of the awarded project Contract Price according to petitioner was Rs.100 59 48 977.35. Further as per Work Order dated 28.06.2016 issued by the respondent petitioner was instructed to commence the work at the Site on the even date with a Completion Period of 30 months expiring on 27.12.2018. However since respondent failed to handover the site to the petitioner a Revised Work Order dated 19.06.2017 was issued by the respondent for petitioner to commence the project on 12.08.2016 with the Completion Date as 11.02.2019. During the course of hearing learned counsel for petitioner has averred that in view of the various delays and defaults on the part of the respondent the contract completion was delayed and consequently the petitioner had to seek extension of the project with Completion Period on various occasions upto to 31.05.2019 and by then petitioner completed the ARB.P. 830 2021 work. However thereafter certain disputes arose between the parties with regard to handing over of the dwelling units issuance of completion certificate defects liability period release of bank guarantees furnished by the petitioner etc. It is submitted that since respondent had been unwilling to release the longstanding dues of the Petitioner Petitioner invoked arbitration vide letter dated 22.06.2021 under Clause 174 of GCC and further vide letter dated 22.06.2021 suggested the names of three eminent persons for the Respondent to choose one person to act as the Sole Arbitrator for adjudicating the disputes between the parties. In response thereto vide letter dated 06.07.2021 Respondent instead of choosing one therefrom called upon the Petitioner to choose from its own list of four people. However vide letter dated 13.07.2021 petitioner conveyed its unacceptance to the respondent’s proposal. The Chairman of the respondent in complete neglect of petitioner’s letter dated 13.07.2021 unilaterally appointed Mr. S.S. Bansal ADGMilitary Engineering Serviceas the Sole Arbitrator. Thereafter petitioner received a letter dated 03.08.2021 from the Mr. S.S. Bansal calling upon the parties to submit to his jurisdiction as the Sole Arbitrator. Learned counsel for petitioner submitted that appointment of Mr. S.S. ARB.P. 830 2021 Bansal as Arbitrator is in violation of dictum of Hon’ble Supreme Court in Perkins Eastman Architects DPC &Anr. vs. HSCCLtd. 2019 SCC Online SC 1517. Notice issued. 8. Mr. A.K.Tewari Advocate appearing on behalf of petitioner accepts notice and submits that upon being informed about filing of the present petition the learned Arbitrator has stayed the proceedings. Learned counsel has disputed the claims raised in the present petition however existence of arbitration clause is not disputed. Pertinently the arbitration agreement between the parties and invocation of arbitration are not disputed by the parties. However unilateral appointment of Arbitrator by the respondent is rejected as no party can be permitted to unilaterally appoint an Arbitrator as the same would defeat the purpose of unbiased adjudication of dispute between the parties. 10. The Hon’ble Supreme Court in Perkins Eastman Architects DPC Anr. vs. HSCCLtd. 2019 SCC Online SC 1517 has categorically stated that “in cases where one party has a right to appoint a sole arbitrator its choice will always have an element of exclusivity in determining or charting the course for dispute resolution. Naturally the ARB.P. 830 2021 person who has an interest in the outcome or decision of the dispute must not have the power to appoint a sole arbitrator.” 11. The afore noted dictum of Hon’ble Supreme Court in Perkins Eastmanhas been followed by Coordinate Benches of this Court in Proddatur Cable Tv Digi Services Vs. Siti Cable Network Limited2020 SCC OnLine Del 350 and VSK Technologies Private Limited and Others Vs. Delhi Jal Board 2021 SCC OnLine Del 3525 in unequivocal terms. In view of the above the present petition is allowed. Accordingly Mr. JusticeB.D.Ahmed is appointed sole Arbitrator to adjudicate the dispute between the parties. The arbitration shall be conducted under the Delhi International Arbitration CentreAdministrative Cost and Arbitrators Fees) Rules 2018. 14. The learned Arbitrator shall ensure compliance of Section 12 of Arbitration and Conciliation Act 1996 before commencing the arbitration. 15. With aforesaid directions the present petition is accordingly disposed of. 16. A copy of this order be sent to the learned Arbitrator as well as Delhi ARB.P. 830 2021 International Arbitration Centrefor information. OCTOTBER 26 2021 JUDGE SURESH KUMAR KAIT) ARB.P. 830 2021

Mere custody of ammunition without awareness will not constitute offense U/S. 25 of the Arms Act, 1959: High Court of Delhi

It is a well-settled law that where a person is not conscious of the ammunition in his possession, an offense under Section 25 of the Arms Act, 1959 would not be made out. This was held in ARUN v.   THE STATE GNCT OF DELHI. [Bail Appln. 1528/2021] in the High Court of Delhi by a single bench consisting of JUSTICE SURESH KUMAR KAIT. Facts are that an FIR was registered against the petitioner under Section 25 Arms Act, 1959.The writ petition has been filed under Articles 226/227 of the Constitution of India read with section 482 Cr.P.C. seeking quashing of the FIR registered at Police Station of I.G.I. Airport, and all proceedings emanating from the same. The counsel for the petitioner submitted he was not in conscious possession of the live cartridge that was recovered from him whilst he was traveling from Delhi to Sri Lanka and had thereafter a connecting flight to Australia. He further submitted that the live cartridge of 0.32 mm calibre detected in Petitioner’s tagged baggage, was part of the baggage of his father used in the normal course of traveling and his father has a valid arms license. The learned ASC for State submitted that the Arms Licence issued in the name of petitioner’s father had been verified and the same was found to be genuine. The court made reference to the judgment of Delhi High court in Chan Hong Saik Vs. State and Anr. ,, wherein it was observed that “the court had quashed the FIR by holding that a single cartridge without a firearm is a minor ammunition which is protected under clause (d) of Section 45 of the Arms Act.”. But the same was also referred to a larger bench of the court who had opined that “opined that single cartridge is ammunition and comes under the Arms Act, 1959. But  since the possession of the ammunition was unconscious and there was no arm with the accused and there was no threat to anyone, therefore this Court has rightly quashed the FIR” The court also made reference to the provision of Arms act and further reference to the judgment of Delhi High in Paramdeep Singh Sran v. The State (NCT of Delhi) W.P, wherein it was observed that “ Section 25 Arms Act was converted into Section 30 Arms Act as the Petitioner was holding a valid Arms License”.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 28.05.2021 W.P.552 2021 GAURAV SACHDEVA Through Mr. Aamir Chaudhary Adv. Petitioner NCT OF DELHI &ANR. Respondent Through Mr. R.S. Kundu ASC for State HON BLE MR. JUSTICE SURESH KUMAR KAIT JUDGMENTCRL. M.A. 5356 2021 Allowed subject to all just exceptions. Application is disposed of. W.P.(CRL.) 552 2021 The present writ petition is filed under Articles 226 227 of the Constitution of India read with section 482 Cr.P.C. seeking quashing of FIR No. 100 2019 registered at Police Station I.G.I. Airport for the offences punishable under Section 25 Arms Act 1959 and all proceedings emanating therefrom. W.P.(Crl.) 552 2021. 4. Learned counsel for petitioner submits that the petitioner was not in conscious possession of the live cartridge that was recovered from him whilst he was travelling from Delhi to Sri Lanka vide flight No.UL196 and had thereafter a connecting flight to Australia . He further submits that the live cartridge of 0.32 mm calibre detected in Petitioner s tagged baggage was part of the baggage of his father used in the normal course of travelling bearing No. DM FZR DUP FZRC 0118 11. During interrogation petitioner disclosed that his father has a valid arms license issued by the Government of Punjab. During further course of investigation petitioner produced a copy of his father’s Arms License bearing number DM FZR DUP FZRC 0118 11. Learned ASC for State submits that the aforesaid Arms Licence issued in the name of petitioner’s father has been verified and the same is found to be genuine. It is a well settled law that where a person is not conscious of the ammunition in his possession an offence of under Section 25 of the Arms Act 1959 would not be made out in view of judgments Surender Kumar @ Surender Kumar Singh vs. The State& Anr.: W.P.(Crl.) W.P.(Crl.) 552 2021. 2143 2019 decided on 27.09.2019 Aruna Chaudhary vs. State & Ors.: W.P.(Crl.) 1975 2019 decided on 25.09.2019 and Paramdeep Singh Sran v. The StateW.P.:(Crl.) 152 2019 decided on 29.08.2019) therefore Section 25 Arms Act was converted into Section 30 Arms Act as the Petitioner was holding a valid Arms License. The fact remains that this Court in Chan Hong Saik Vs. State and Anr. 2012DRJ 504in CRL.M.C. 3576 2011 ) quashed the FIR by holding that a single cartridge without firearm is a minor ammunition which is protected under clauseof Section 45 of the Arms Act. However the judgment delivered by this Court dated 02.07.2012 was referred to the larger Bench and vide judgment dated 06.01.2016 in case of Dharmendra vs. State in CRL.M.C. 4493 2015 the Court opined that single cartridge is ammunition and comes under the Arms Act 1959. The larger Bench referred above did not agree with the opinion of this Court but opined that since the possession of the ammunition was unconscious and there was no arm with the accused and there was no threat to anyone therefore this Court has rightly quashed the FIR. In the case in hand it is not the case of the prosecution that there was fire arm recovered from the petitioner or there was any threat to anyone at W.P.(Crl.) 552 2021. the Airport. 11. Thus in the present case also the possession of the ammunition was unconscious and there was no threat to anyone. 12. Accordingly for the reasons afore recorded FIR No. 100 2019 registered at Police Station I.G.I. Airport for the offences punishable under Section 25 Arms Act 1959 and all proceedings emanating therefrom 13. The petition is allowed and disposed of accordingly. SURESH KUMAR KAIT) are hereby quashed. MAY 28 2021 rk W.P.(Crl.) 552 2021.

A legislation passed by a Parliament can be challenged only on constitutionally recognized grounds : Jammu and Kashmir High Court

Ordinarily, the grounds of attack of legislation are whether the legislature has the legislative competence and whether the legislation is ultra vires the provisions of the Constitution. This was held in the judgment passed by a two – judge bench comprising of Hon’ble Mr. Justice Ali Mohammad Magrey, Hon’ble Mr. Justice Dhiraj Singh Thakur, in the matter of Suhail Maqbool Dar V. State of J&K & ors  [CM no.3588/2019], dealt with an issue where the petitioner filed a petition seeking to ive effect to his regularization as Junior Assistant from the date he was initially appointed on ad hoc basis vide High Court, and to declare him entitled to consequential service benefits. his initial appointment on ad hoc basis, without any doubt, was dehors the Rules and a backdoor appointment; therefore, in terms of the law as it existed, he was not entitled to, and could not have dreamt of, regularisation on the post. However, the then State of Jammu and Kashmir passed a legislative enactment, namely, the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010 [Act No.XIV of 2010], which came into force with effect from 28.04.2010, providing for regularization of the employees appointed on ad hoc, contractual or consolidated basis, subject to the conditions prescribed therein, especially in Section 5 thereof. Notwithstanding the law, as it existed, the petitioner in this petition, apart from seeking other reliefs, has challenged the very provision contained in the aforesaid enactment, i.e. the first proviso to Section 5 thereof, as enabled the competent authority to regularize him. Thus, the petitioner is seeking to sever the very perch he has been given a legal right to securely settle on. Counsel for the petitioner also sought to refer to Regulation 177-A of the Jammu and Kashmir Civil Service Regulations to contend that the impugned proviso was dehors, rather ultra vires the said Regulation. It is unfortunate, the learned counsel seems to be labouring under a misconception that the Special Provisions Act has been enacted by the State Legislature under the aforesaid Regulations. Regulation 177-A relates to a different class of employees whose regularization is governed by a different set of Rules providing for, inter alia, a minimum of seven years continuous service. After hearing both sides, the Hon’ble High Court of Jammu and Kashmir dismissed the petition and held that that the State Legislature had the competence to pass the enactment and that it is not ultra vires the provisions 13 of the Constitution; it rather is intra vires thereto. Therefore, there is no merit in the claims of the writ petitioner and, consequently, in this writ petition. Click here to view judgement Judgement reviewed by – Vaishnavi Raman

HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR Video conferencing) SWP no.2127 2016 CM no.3588 2019 Reserved on :03.05.2020 Pronounced: on 04.06.2020 Suhail Maqbool Dar Through: Mir Majid Bashir Advocate. State of J&K & ors. Through: Mr. B. A. Dar Sr. AAG for no.1 & Mr. N. A. Beigh Advocate for nos. 2 to 4. Coram: Hon’ble Mr. Justice Ali Mohammad Magrey Judge Hon’ble Mr. Justice Dhiraj Singh Thakur Judge Whether approved for reporting: Yes DATE OF DECISION: 04.06.2020 Magrey J: Essentially the principal claim and prayer of the petitioner in this writ petition is to give effect to his regularization as Junior Assistant from the date he was initially appointed on ad hoc basis on 21.08.2003 vide High Court order no.365 dated 21.08.2003 and to declare him entitled to consequential service benefits. From a bare perusal of the aforesaid High Court order it becomes axiomatic that his initial appointment on ad hoc basis without any doubt was dehors the Rules and a backdoor appointment therefore in terms of the law as it existed he was not entitled to and could not have dreamt of regularisation on the post. However the then State of Jammu and Kashmir passed a legislative enactment namely the Jammu and Kashmir Civil ServicesAct 2010which came into force with effect from 28.04.2010 providing for regularization of the employees appointed on ad hoc contractual or consolidated basis subject to the conditions prescribed therein especially in Section 5 thereof. Notwithstanding the law as it existed the petitioner in this petition apart from seeking other reliefs has challenged the very provision contained in the aforesaid 2 enactment i.e. the first proviso to Section 5 thereof as enabled the competent authority to regularise him. Thus the petitioner is seeking to sever the very perch he has been given a legal right to securely settle on. The facts are that vide High Court order no.365 dated 21.08.2003 the petitioner was appointed as a Junior Assistant on ad hoc basis till the post was filled up by regular selection under rules. It is his case that pursuant to his representations made in that behalf his services were regularised by Order no.795 dated 01.02.2011 from the date of issue of the order. He filed representations for accord of retrospective effect to his regularisation from the date he was initially appointed on ad hoc basis seeking analogy with some eleven employees who according to the petitioner were regularised from retrospective dates in terms of High Court order no.475 dated 27.08.2001 and no.282 dated 23.07.2003 i.e. prior to the engagement of the petitioner on ad hoc basis. However according to the petitioner his representations were not decided. He filed writ petition SWP no.2445 2013 which was disposed of by the learned Writ Court vide order dated 12.12.2013 without issuing notice with direction to the High Court to accord consideration to his representation for giving effect to his regularisation from the date of initial appointment at par with those who were similarly placed and were accorded benefit of regularization from the date of initial appointment. However according to the petitioner his representations were not decided. He filed contempt petition no.258 2015 wherein the respondents responding to the notice stated that his representation had been rejected as being devoid of any merit and against the provisions of the Jammu and Kashmir Civil ServicesAct 2010 hereinafter the Special Provisions Act) especially sub section of Section 5 thereof etc. The petitioner thereafter challenged the order of rejection of his representations in SWP no.1506 2016 but withdrew the same on 28.09.2016 with liberty to file a fresh writ petition to challenge Section 5 of the Special Provisions Act. It is in the backdrop of the above facts that the petitioner has filed the present writ petition with the following prayers: “It is therefore prayed that in view of the above submissions Hon’ble Court may be pleased to: Issue writ direction or order in the nature of certiorari for quashing the order no.795 dated 01.02.2011 issued by Principal Secretary to Hon’ble Chief Justice of J&K High Court to the extent of regularizing the services of the petitioner as Junior Assistant on prospective basis i.e. from the date of order of regularization. Issue writ direction or order in the nature of certiorari for quashing communication no.18819 NG dated 01.01.2015 of answering respondent rejecting the claim of petitioner for regularization of service with retrospective effect vis à vis treating the ad hoc period into regular service for the purpose of seniority and other service cum pensionery benefits including qualifying service etc. reads as sic) “provided Issue writ direction or order in the nature of declaration declaring proviso appended to sub sectionof Section 5 of the J&K Civil Services Act 2010 which regularization of the eligible ad hoc or contractual or consolidated appointees under this Act shall have effect only from the date of such regularization irrespective of the fact that such appointees have completed more than seven years of service on the appointed date or thereafter regularization’ unconstitutional but before ineffective and inoperative. Issue writ direction or order in the nature of mandamus commanding the respondents to give effect to the regularization of services of the petitioner as Junior Assistant retrospectively i.e. from the date of initial Issue writ direction or order in the nature of mandamus commanding the respondents to place the petitioner at an appropriate place in the senior list of Junior Assistants and consequent thereto grant all consequential benefits to the petitioner to which he is entitled. vi. By issuance of writ of mandamus it be declared that the service of the petitioner is not governed by SRO 400 of 2009 dated 24.11.2009 and the services of the petitioner in the matter of pension are governed by the Pension Rules as applicable prior to issuance of SRO 4009 dated vii. Any other writ direction or order which this Hon’ble Court may deem fit and proper in the fact and circumstances of the case may also be passed in favour of the petitioner and against he respondents along with the cost of litigation.” The respondents have contested the petitioner’s claim. 5. We heard the learned counsel for the parties perused the pleadings and record and considered the matter. Admittedly the petitioner herein was appointed on ad hoc basis on 21.08.2003. What Rules were prevalent then and what did they provide for is not even remotely spoken about in the present writ petition. Instead judgments from other corners of the country were cited before us without letting us know which Rules governed the appointment of the petitioner on ad hoc basis. However we may observe here that the history of ad hocism in the erstwhile State of Jammu and Kashmir has been aptly traced in the Single Bench judgment of this Court in Thomas Masih v State of J&K 2004(I) S.L.J. 2 and this judgment was conveniently neither mentioned nor cited at the Bar. The first few paragraphs of that judgment are relevant in context of the controversy raised in this petition. We quote the same hereunder: “1. The practice of appointing persons on ad hoc basis on posts ranging from Class IV to Gazetted nomenclature and the evil of continuing these arrangements either with or without formal extensions dehors the Rules beyond the prescribed period of nine months and or against the terms of initial orders of such appointment seems to have been followed unabatedly by the Government and its various functionaries since long. It appears that there was a ban imposed by the Government on such appointments for some period with effect from 29th December 1988 to 28th July 1989. However record reveals that even during the period of ban various functionaries of the Government made ad hoc appointments. Ultimately in terms of Government order No.1220 GAD of 1989 dated 11th September 1989 it was ordered that all ad hoc appointees to non gazetted posts recruited from time to time till 29th December 1988 and who were continuing as on the date of issue of the aforesaid Government order i.e. 11th September 1989 be treated to have been appointed on regular basis on probation or trial as the case may be with effect from the date of issue of the Government order dispensing with reference of posts held by them to the Service Selection Board or the District Level Committees in the case of Class IV posts. In respect of those of the appointees who had been appointed during the period of ban it was ordered that their cases should be submitted to the Chief Minister through General Administration Department for orders. However in respect of Gazettes Officers it was ordered that these posts should immediately be referred to the Public Service Commission for selection. The Government order also envisaged relaxation of qualification and age bars. It may be relevant to notice here that appointment on ad hoc basis to Government service is permitted by Rule 14 of the Jammu and Kashmir Civil Service Classification Control and Appeal) Rules 1956dated 10.09.2001. It was inter alia ordered that all ad hoc appointees to non gazetted posts recruited from time to time beyond 29.12.1988 till the date of issue of the order who were still in service be considered for regularization after completing seven years of continuous service from the date of appointment dispensing with reference of posts held by them to Service Selection Board subject to certain conditions prescribed the Government order. This Government order was purportedly issued consequent upon judgment dated 12th February 1998 passed by one of the learned Single Judges of this Court in SWP No.283 94 titled Uttam Singh v State of J&K holding that an adhocee cannot be worse than a daily rated worker and that the petitioner therein would be entitled to regularization under SRO 64 of 1994 providing for regularization of daily rated workers after completion of seven years continuous service. In terms of the Government order the orders of regularization were required to be issued by the respective Administrative Departments. Before this process could be completed noticing the correct position of law as enunciated by the Apex Court and various other Benches of this Court as also the statutory law in force in the State the Government decided to do away with these ad hoc appointments. As a sequel to achieving this objective the first step taken by the Government was the issuance of Government order No.1018 GAD of 2003 dated 5th August 2003 based on Cabinet Decision No.136 9 dated 23.7.2003 adopting the policy of contractual appointments to certain categories of posts mentioned therein and such other posts as may be notified by the Government from time to time. The aforesaid Government order dated 5th August 2003 may be quoted below. It reads thus: ‘Government of Jammu and Kashmir General Administration Department Sub.: Contractual appointments. Ref.: Cabinet decision No.136 9 dated 23.7.2003. Govt. Order No.1018 GAD of 2003 Dated 05 08 2003. 1. In the public interest Government have approved the policy of contractual appointment to the following posts: Assistant Surgeons Veterinary Surgeons Junior Engineer Civil in the Public Works the Rural Development Department Junior Engineer Mechanical Junior Agriculture Assistant and Physical Education Teachers and such other posts as may be notified by the Government from time to time. 2. Contractual appointments referred to in para 1 above shall be made in accordance with the rules to be notified Pursuant to this policy sanction is accorded to the 3. constitution of the Committees comprising: i) Deputy Commissioner of the concerned District ii) The Head of the concerned Deptt at the District level for selecting candidates for these posts. Appointment orders shall be issued by the competent By order of the Government of Jammu and Kashmir. Sd Principal Secretary to Government.’ 2. By virtue of the aforesaid order it was also provided that as a matter of policy the contractual appointments be made in accordance with Rules to be notified separately. Simultaneous with the issue of the aforesaid order Government issued Notification SRO 255 dated 5th August 2003 promulgating the Jammu and Kashmir Contractual Appointment Rules 2003 dated 10.09.2001 whereby it was inter alia ordered that all ad hoc appointees to non gazetted posts recruited from time to time beyond 29.12.1988 till the date of issue of the said order i.e. 10.09.2001 who were still in service be considered for regularization after completing seven years of continuous service from the date of appointment dispensing with reference of posts held by them to Service Selection Board subject to certain conditions prescribed in the Government order. This Government order was purportedly issued consequent upon judgment dated 12th February 1998 passed by one of the learned Single Judges of this Court in SWP No.283 94 Uttam Singh v State of J&K holding that an adhocee cannot be worse than a daily rated worker and that the petitioner therein would be entitled to regularization under SRO 694 providing for regularization of daily rated workers after completion of seven years continuous service. As mentioned above the petitioner is stated to have been appointed on 21.08.2003. Since the aforesaid Government order no. 1285 GAD of 2001 dated 6.11.2001 was relatable to those ad hoc appointees recruited from time to time beyond 29.12.1988 till the date of issue of the said order i.e. 10.09.2001 the petitioner would not be entitled to the benefit of the said Government order nor can he seek parity with those employees in the matter of employment. It may be mentioned here that pursuant to the aforesaid Government order the services of a large number of employees had been regularised. This is one thing. 10. Subsequently in 2004 the Government in supersession of the aforesaid Government order No.1285 GAD of 2001 dated 06.11.2001 issued order No.168 GAD of 2004 dated 9th February 2004 read with two other Government orders both bearing one and the same No. and date i.e. 237 GAD of 2004 dated 20.2.2004 under the caption `policy relating to ad hoc appointments . By virtue of the aforesaid Government Orders it was inter alia ordered that all ad hoc appointments made after 28.07.1989 and continued in service till the date of issue of the aforesaid order i.e. 20.02.2004 and also those ad hocees who were appointed by the General Administration Department or with approval from the General Administration Department and continued in service till August 2002 or thereafter were ordered to be converted into contractual appointments with effect from 01.02.2004 and these contractual appointments were to subsist till 31.12.2004 or till selections against these posts were made by the concerned selection agencies whichever would be In light of above since the petitioner had been appointed on ad hoc basis on 21.08.2003 his such appointment was covered and would be governed by the terms of the ‘policy relating to ad hoc appointments’ thus promulgated by the Government under aforesaid Government order no. 168 GAD of 2004 dated 9th February 2004 read with the two Government orders both bearing one and the same No. and date i.e. 237 GAD of 2004 dated 20.2.2004. In other words the petitioner’s ad hoc appointment would get converted into contractual appointment and would last till 31.12.2004 only. 12. Numerous writ petitions were filed in the High Court challenging the aforesaid Government order dated 09.02.2004 and the said policy. It is not known whether the petitioner had challenged the said order or he accepted it in its toto. The averments made in the petition do not speak even a word about it. The inference is that he had accepted it in its entirety. If that act of the petitioner be taken by its strict consequence the petitioner would be deemed to have allowed conversion of his ad hoc appointment into a contractual appointment and come to an end on 31.12.2004 and consequently the post held by him was to be filled in by a candidate after proper selection. That however seems not to have been done and the petitioner continued to hold the post on ad hoc basis. Be that as it may the aforesaid writ petitions were decided by a common judgment in Thomas Masih v State of J&K was upheld by a Division Bench of the Court in LPA(SW) no.104 2004 Shafiqa Begum v. State of J&K and analogous appeals vide judgment dated 19.07.2004. There was an another batch of LPAs arising out of some judgments rendered by another learned Single Judge of the High Court namely Mr. Justice R. C. Gandhi. The Division Bench hearing those LPAs was of the view that some of the points raised therein had not been taken in LPA no.104 2004 and the connected LPAs. Therefore the Division Bench referred the matter to the Full Bench. The matter remained pending before the Full Bench for a pretty long time. 14. Meanwhile the erstwhile State of Jammu and Kashmir enacted the Jammu and Kashmir Civil ServicesAct 2010 which came into effect from 20.4.2010. The object of the said Act was to provide for regularisation of the employees appointed on ad hoc contractual or consolidated basis. 15. The Reference made to the Full Bench was ultimately disposed of without answer by order dated 18.05.2016 with the following operative part thereof: “In light of the enactment of the Act namely the Jammu and Kashmir Civil ServicesAct 2010 the Reference made by the Division Bench to answer the issue by Full Bench no longer survives. Hence we are of the view that no answer need to be given to the said Reference. However in all those appeals where the appellants are still continuing but their services have not been regularised under the aforesaid Act their regularization claim shall be considered and decided by the concerned official respondents in terms of the Jammu and Kashmir Civil Services Act 2010 within eight weeks and if any of the appellant is aggrieved of the date of regularization it is open to him to seek further remedy by filing separate writ petition if there is any legal ground available. Such of those appellants who have already filed separate writ petitions are permitted to raise all grounds raised before the Writ Court as this Full Bench has not decided any issue. All the appeals are accordingly disposed of.” It is reiterated that the appointment of the petitioner herein was governed by ‘policy relating to ad hoc appointments’ promulgated by the Government vide Government order no. 168 GAD of 2004 dated 09.02.2004 read with the two Government orders both bearing one and the same No. and date i.e. 237 GAD of 2004 dated 20.2.2004. Therefore his appointment was to come to an end on 31.12.2004 and the post held by him was to be put to regular selection. But that was not to be perhaps because there was an inconsistency in decisions by different Benches of the Court. Consequently the petitioner continued to hold the post on ad hoc basis. However above being the policy of the Government the petitioner was not entitled to regularization and could not be regularised. 17 Learned counsel for the petitioner referred to certain instances where some ad hoc employees working in the High Court were regularised prior to the date of appointment of the petitioner on ad hoc basis and sought parity of the petitioner with them. Admittedly those employees had been appointed and were regularised prior to the date of engagement of the petitioner therefore the petitioner cannot by any standards seek parity with those employees the two being forming two different and distinct classes. 18 There were numerous employees like the petitioner working on ad hoc contractual and consolidated basis in the erstwhile State in almost all the departments. With a view to providing for their regularization the State legislature enacted the Special Provisions Act. So basically this was an enabling enactment containing special provisions to facilitate the Government to regularize the services of such employees on the terms and conditions mentioned in its relevant provisions. 19. The petitioner as mentioned earlier has challenged proviso to Clauseof Section 5 of the Special Provisions Act in this petition. Section 5 is quoted hereunder. It reads thus: “5. Regularization of ad hoc or contractual or consolidated appointees.— Notwithstanding anything to the contrary contained in any law for the time being in force or any judgment or order of any court or tribunal the ad hoc or contractual or consolidated appointees referred to in Section 3 shall be regularised on fulfilment of the following conditions namely: that he has been appointed against a clear vacancy or post that he continues as such on the appointed day that he possessed the requisite qualifications and eligibility for the post on the date of his initial appointment on ad hoc or contractual or consolidated basis as prescribed under the recruitment rules governing the service or the post that no disciplinary or criminal proceedings are pending against him on the appointed day and that he has completed seven years of service as such on the appointed day. 11 Provided that the regularization of the eligible ad hoc or contractual or consolidated appointees under this Act shall have effect only from the date of such regularization irrespective of the fact that such appointees have completed more than seven years of service on the appointed date or thereafter but before such regularization. Provided further that any ad hoc or contractual or consolidated appointee who has not completed seven years service on the appointed day shall continue as such till completion of seven years and shall thereafter be entitled to regularization under this Act.” As it becomes axiomatice from a bare perusal of the aforesaid provision it simply is an enabling provision whereby it was made possible and permissible for the Government to regularise the services of the ad hoc contractual and consolidated employees who otherwise had no right to continue on the posts in question in terms of the Policy promulgated in 2004 not to speak of regularization on the posts. However by the legislative enactment this permissibility was made subject to certain terms and conditions contained in various clauses of Section 5 itself. The impugned proviso qualifies the main Section and limits the privilege granted by the provision of law as a whole to such qualification. In other words fulfilment of the qualifying condition contained in the proviso is sine qua non to the consideration of an employee for such regularization. As already mentioned earlier the petitioner is seeking to sever the very perch he has been resting on. He wants his sheet anchor to be removed underneath his feet. If that is done he would fall a mass of broken bones and torn in smithereens. 20. The prayer of the petitioner in reality is that his ad hoc appointment should be included in his regular service for the purposes of service benefits. In other words he seeks a regular appointment from the initial date of his ad hoc appointment. It is not comprehendible how can a backdoor entrant have the cheek to claim regularization from the date of his initial appointment on ad hoc basis invoking the mandate of Articles 14 and 16 of the Constitution especially so when the Rules and policy of the government then prevalent did not provide for such a treatment. The petitioner did not have and cannot claim any such right dehors the law. Consequently he cannot also not claim any relief subordinate to and in consequence of such a prayer. 21. The contention of the learned counsel for the petitioner is that the first proviso to Section 5 of the Special Provisions Act is violative of the rights of the petitioner guaranteed to him under Articles 14 and 16 of the Constitution. It may be mentioned here that in context of interpretation of statute or a statutory provision the cardinal principle is when a legislative enactment is challenged as not conforming to the constitutional mandate the Court has only one duty i.e. to lay the Article of the Constitution which is invoked beside the Statute or the relevant provision which is challenged and to decide whether the latter squares with the former. Applying the said test to the instant case the petitioner wants that his backdoor appointment on ad hoc basis should be treated as regular appointment ab initio ignoring the fact that when he was appointed as a backdoor entrant the rights of all those candidates who could have then been eligible and desirous of competing for the post had been violated to the hilt. Articles 14 and 16 of the Constitution are and were not meant for the petitioner alone. It is to meet a special circumstance that Section 5 with all its above quoted Clauses and the provisos was enacted to confer a right on the petitioner and other employees like him in lieu of a minimum of seven years continuous service on the post. These conditions contained in Section 5 of the Special Provisions Act including the provisos appended thereto are mandatory in nature unless they are fulfilled no right would accrue to such an employee for regularization of his services. 22. Viewed thus placing Articles 14 and 16 of the Constitution beside the first proviso to Section 5 of the Special Provisions Act we are of the considered view that the latter squares with the former. Apart from that the State Legislature had ample powers under Section 5 of the Constitution of the erstwhile State of J&K to make the law of the kind it actually enacted. It is therefore held to be intra vires the 23. Learned counsel for the petitioner also sought to refer to Regulation 177 A of the Jammu and Kashmir Civil Service Regulations to contend that the impugned proviso was dehors rather ultra vires the said Regulation. It is unfortunate the learned counsel seems to be labouring under a misconception that the Special Provisions Act has been enacted by the State Legislature under the aforesaid Regulations. Regulation 177 A relates to a different class of employees whose regularization is governed by a different set of Rules providing for inter alia a minimum of seven years continuous service. It is settled law that a legislation passed by a Parliament herein it is Legislative Assembly can be challenged only on constitutionally recognized grounds. Ordinarily the grounds of attack of legislation are whether the legislature has the legislative competence and whether the legislation is ultra vires the provisions of the Constitution. We have already held above that the State Legislature had the competence to pass the enactment and that it is not ultra vires the provisions 13 of the Constitution it rather is intra vires thereto. Therefore there is no merit in the claims of the writ petitioner and consequently in this writ petition. 25. During the course of arguments the learned counsel for the petitioner cited and relied upon the following judgments in support of his contentions: i) Rabia Shah v State of J&K 2017JKJ 490[HC] State of J&K v. Karmo Devi 2014JKJ 209{HC] iii) Latief Hussain Khan v State of J&K SWP no.1463 2016 decided on We have considered these judgments. These judgments are wholly distinguishable on facts therefore are of no help to the petitioner. For all what has been discussed above this petition being without any merit is dismissed together with the connected CMP Interim direction if any subsisting shall stand vacated. 27 No order as to costs. Registry shall return the Original records produced by the learned counsel for the High Court to Registrar General. (Ali Mohammad Magrey) Judge Judge Srinagar Syed Ayaz Secretary whether the judgment is speaking : Yes No. whether the judgment is non speaking: Yes No.

Objection of territorial jurisdiction has to be construed after taking all averments in the plaint to be correct: High Court of Delhi

When an objection to jurisdiction is raised by way of demurrer and not at the trial, the objection must proceed on the basis that the facts as pleaded by the initiator of the impugned proceedings are true. Objection of territorial jurisdiction has to be construed after taking all averments in the plaint to be correct. While considering a plaint from the standpoint of Order VII Rule 10 CPC, it is only the plaint and the documents filed along with it that need to be seen and the same was upheld by High Court of Delhi through the learned bench led by Justice Asha Menon in the case of SAISONS TRADE AND INDUSTRY PRIVATE LIMITED vs. MAITHRI AQUATECH PRIVATE LIMITED& ORS. [CS(COMM) 214/2021] on 02.03.2022. The facts of the case are that the present application has been filed on behalf of defendant under Order VII Rule 10 read with Section 151 of the Civil Procedure Code 1908 (for short „CPC‟) for return of the plaint as well as the application of the plaintiff under Section 20(b) of the CPC seeking leave to file the suit in Delhi as the suit was filed in Delhi but neither the plaintiff nor the defendant was located in Delhi. The plaintiff had an office in Mumbai and the defendant was located in Hyderabad and therefore, under Section 20 CPC, leave of this court to file the suit here should not have been sought. The plaintiff’s counsel submitted that the jurisdiction of the court had been invoked under Section 20(b) CPC. The defendant was carrying on business through an interactive official website, which could be accessed from anywhere in India, including Delhi. Further it was stated since the defendants have their registered offices in Delhi, and thus, Delhi could be deemed to be its principal place of business. The defendant’s counsel stressed on the lack of jurisdiction. He urged that the plaint be returned for being filed in the court with jurisdiction, namely Hyderabad, where the defendant No.1 was located. In view of the facts and circumstances, the Court held that the plaintiff is entitled to file the suit before this Court and the leave, as sought for, is to be granted as it is not only evident that the website can be accessed by the residents of Delhi and the products of defendant is delivered at Delhi, but also the advertisers/sellers of the products are actually located in Delhi carrying on business and working for gain here. The Court observed, “When an objection to jurisdiction is raised by way of demurrer and not at the trial, the objection must proceed on the basis that the facts as pleaded by the initiator of the impugned proceedings are true. Objection of territorial jurisdiction has to be construed after taking all averments in the plaint to be correct. While considering a plaint from the standpoint of Order VII Rule 10 CPC, it is only the plaint and the documents filed along with it that need to be seen.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Pronounced on: 2nd March 2022 CS(COMM) 214 2021 SAISONS TRADE AND INDUSTRY PRIVATE LIMITED ..... Plaintiff Through: Mr. Neeraj Grover Mr. Abhijeet Deshmukh Ms. Meenakshi Ogra and Mr. Vikram Singh Advocates. MAITHRI AQUATECH PRIVATE LIMITED& ORS. Defendants Through: Mr. Vinay Navare Advocate with Mr. Jay Kishor Singh Advocate for D 1. Mr. Prithvi Raj Sikka Advocate for D 2 & D 3. HON BLE MS. JUSTICE ASHA MENON O R D E R I.As. 13230 2021 & 6064 2021r w 151 CPC seeking leave of the court to file the suit in Delhi) This order will dispose of the application filed on behalf of defendant No.1 under Order VII Rule 10 read with Section 151 of the Civil Procedure Code 1908 for return of the plaint as well as the application of the plaintiff under Section 20(b) of the CPC seeking leave to file the suit in Delhi. 2. It is the contention of Mr. Vinay Navare learned senior counsel for the defendant No.1 that the suit has been filed in Delhi whereas neither the plaintiff nor the defendant No.1 was located in Delhi. According to learned senior counsel for defendant No. 1 the plaintiff had an office in Mumbai and the defendant No.1 was located in Hyderabad and therefore under Section 20 CPC leave of this court to file the suit here could not have even been sought. Relying on the judgment of a Coordinate Bench of this Court in Escorts Limited v. Tejpal Singh Sisodia 2019 SCC OnLine Del 7607 it was submitted that online activity through a website which was accessible from all parts of the world could not vest any and every court with jurisdiction. Moreover there was no document placed on the record to show that the defendants No.2 and 3 had any business in Delhi or that some person had actually accessed the website in Delhi and purchased the commodity from the defendants No.2 and 3. Thus when the defendant No.1 had not acquiesced to the jurisdiction of this court the plaint was liable to be returned. Reliance in this regard has been placed on the order of a Coordinate Bench of this Court in Ajay Pal Sharma vs. Udaiveer SinghCPC. The defendant No.1 was carrying on business through an interactive official website which could be accessed from anywhere in India including Delhi. The defendants No.2 & 3 were marketing and selling agents of defendant No.1 having their registered offices in Delhi and thus Delhi could be deemed to be its principal place of business. Reliance has been placed on the judgment of a Division Bench of this Court in World Wrestling Entertainment v. Reshma Collection 2014 SCC OnLine Del 2031. Therefore the Delhi courts had jurisdiction to try the matter. It was submitted that on the averments in the plaint there was nothing whereby it could be held that this court has no jurisdiction for the plaint to be returned. At best if two courts had jurisdiction then the plaintiff had sought leave to sue in Delhi which may be granted. Reliance has also been placed on the decision of the Bombay High Court in Suresh Kumar Vs. Maharashtra State Electricity Distribution Company Ltd. 2014 SCC OnLine Bom 2873 to submit that where two courts had jurisdiction the leave of the court alone was required to proceed in one of the jurisdictions which the plaintiff had sought but in any case the suit could not be dismissed as prayed for in the application. Further it has been submitted that merits of the case cannot be considered at this juncture. Reliance has been placed on Exphar SA & Anr. Vs Eupharma Laboratories Ltd. & Anr. 2004SCC688 Begum Sahiba Sultan Vs. Mohd. Mansur Ali Khan & Ors 2007 SCC OnLine SC 504 and RSPL Limited Vs. Mukesh Sharma & Ors. 2016 SCC OnLine Del 4285. 10. The Patents Act 1970 provides in Section 104 that no suit for a declaration under Section 105 or for any other relief under Section 106 or for infringement of patents shall be instituted in a court inferior to that of a District Court “having jurisdiction to try the suit”. Therefore the situs for filing of this suit would be governed by the provisions of CPC. Section 15 of the CPC provides that every suit is to be instituted in the lowest grade competent to try it. Section 16 of the CPC provides that subject to pecuniary and other limitations prescribed by law suits in respect of the immovable property of various kinds are to be instituted in the court within whose local limits the property is situated. If immovable property was situated within jurisdiction of different courts the suit could be instituted in any one of these courts within the local limits of whose jurisdiction any portion of the property was situated. Section 18 of the CPC deals with the place of the institution of the suits when local limits of jurisdiction of courts were uncertain. Section 19 of the CPC provides that a suit for compensation for wrong done to the person or to movable property if done within the local limits of the jurisdiction of one court whereas the defendant resided or carried out business etc. within the local limits of the jurisdiction of another court the suit could be instituted at the option of the plaintiff in either of the said courts. Finally Section 20 of the CPC provides as under: “20. Other suits to be instituted where defendants reside or cause of action arises.—Subject to the limitations aforesaid every suit shall be instituted in a Court within the local limits of whose jurisdiction— the defendant or each of the defendants where there are more than one at the time of the commencement of the suit actually and voluntarily resides or carries on business or personally works for gain or any of the defendants where there are more than one at the time of the commencement of the suit actually and voluntarily resides or carries on business or personally works for gain provided that in such case either the leave of the Court is given or the defendants who do not reside or carry on business or personally works for gain as aforesaid acquiesce in such institution or The cause of action wholly or in part arises. or in respect of any cause of action arising at any place where it has also a subordinate office at such place.” In the present case the „memo of parties‟ states that the plaintiff has its address at Andheri Mumbai. The defendant No.1 is located at Cherlapally Hyderabad Telangana. The defendant No.2 is located at Mayapuri Industrial Area Phase II New Delhi and the defendant No.3 has its address at Karol Bagh New Delhi while the defendant No.4 is located in Las Vegas USA. It is apparent that out of the four defendants two are located in Delhi. Merely because the defendant No.1 claims that he has not acquiesced to the institution of the suit in Delhi does not render the court powerless under Section 20(b) of the CPC. The plaintiff has in fact filed I.A. 6064 2021for leave of the court to institute the suit at Delhi. The plaintiff has therefore complied with the provisions of Section 20(b). It would of course lie within the discretionary powers of the court to grant or refuse the leave. 12. That apart Section 20(c) of the CPC provides for jurisdiction inhering in that court where the cause of action wholly or in part arises. The plaintiff has filed as Document No.23 printout of the IndiaMart Web page for Water Treatment and Purification Plant and Atmospheric Water Generator where there is a product brochure relating to brand make W360 and at the „contact seller‟ the details of the defendant No.2 Sophisticated Industrial Materials Analytic Labs Pvt. Ltd. is given. A brochure of the Defendant No.2 of the product „MEGHDOOT Atmospheric Water Generator with Remineralizer‟ is placed at Page no.443 of the Plaintiff‟s Documents which is the product manufactured by the Defendant No.1wherein the defendant No.2 is named as the promoter and marketer while the defendant No. 3 is named as the seller. It is well settled that while dealing with an objection of jurisdiction raised pre trial under Order VII Rule 10 CPC the averments in the plaint and the documents annexed thereto are alone to be considered. Thus it has to be seen whether the plaintiff has disclosed sufficient justification for permitting the trial of the suit in this court.the issue related to Section 62 of the Copyrights Act 1957 what is relevant for our purpose is the following observation of the Supreme Court: “9. Besides when an objection to jurisdiction is raised by way of demurrer and not at the trial the objection must proceed on the basis that the facts as pleaded by the initiator of the impugned proceedings are true. The submission in order to succeed must show that granted those facts the court does not have jurisdiction as a matter of law. In rejecting a plaint on the ground of jurisdiction the Division Bench should have taken the allegations contained in the plaint to be correct….” emphasis added) 15. The judgment of the Division Bench of this Court in RSPL Limited was again in relation to infringement of trademark and copyright but while dealing with the application under Order VII Rule 10 CPC it was held that the objection of territorial jurisdiction has to be construed after taking all averments in the plaint to be correct and that while “considering a plaint from the standpoint of Order VII Rule 10 CPC it is only the plaint and the documents filed along with it that need to be seen”. In World Wrestling Entertainmentthe Division Bench of this Court held that in a website transaction the ad on the website was only an invitation to offer and not an offer just as a menu in a restaurant. If an invitation is accepted by a customer in Delhi then it becomes an offer made in Delhi for purchasing of the goods advertised on the website as is the case in the present matter where advertisement is made on IndiaMart by the defendants No.2 & 3 of the products of the defendant No.1. The Division Bench in World Wrestling Entertainment considered it safe to presume that though the web server was not located in Delhi but the customers in Delhi who wished to purchase an article available on the website of the appellant in that case could access the website on their computer. The purchaser would place the order for the article from his computer in Delhi. The payment would be made either through credit or debit card or through cash on delivery again in Delhi and ultimately the goods would be delivered to the customer in Delhi. Therefore it was concluded that the rules that applied to contracts concluded over the telephone would apply with equal vigour to contracts concluded over the internet. In other words contracts would be completed at the place where the acceptance is communicated. When the transaction between the seller and purchaser occurs through internet i.e. on a website the offer and acceptance take place instantaneously and the acceptance is also instantaneously communicated to the customer through the internet at Delhi. Therefore in such a case part of the cause of action would arise in Delhi. 17. We can apply these principles to the facts of the present suit. From the documents filed at pages 437 466 of the Plaintiff‟s Documents it is not only evident that the website can be accessed by the residents of Delhi and the products of defendant No.1 would be delivered to them at Delhi additionally the advertisers sellers of the products being defendants No.2 & 3 are actually located in Delhi carrying on business and working for gain here. The product as reflected in the brochure of the Defendant No. 2 at page no. 443 and as advertised on IndiaMart by the defendants No.2 & 3 at page no. 437 establish that it is the same product of the defendant No.1 that is advertised on its website the printout of which is placed on the record as Document No.12 of the Plaintiff‟s Documents. Any one accessing the website can place an order for the products of defendant No.1 from Delhi make payments to the seller and obtain the product in Delhi. Thus seen from all angles it is clear that the plaintiff is entitled to file the suit before this Court and the leave as sought for is to be granted. 18. As regards the judgments relied upon by the learned counsel for the defendants the facts in Escorts Limitedas also Ajay Pal Sharma supra) relate to defamatory statements whereas the judgments relied upon by the plaintiffs are apposite as they relate to conclusion of contract in relation to sale and cause of action in respect of online sale transactions. Therefore the judgments relied upon by the learned counsel for the defendant No.1 are not applicable to the facts of the present case. 19. Accordingly the application i.e. 6064 2021 for leave is allowed. The application I.A. 13230 2021 under Order VII Rule 10 CPC is 20. The applications are disposed of. CS(COMM) 214 2021 & I.A. 6062 202121. An opportunity is granted to the defendants No.2 & 3 to file written statements alongwith affidavit of admission denial of documents filed by the plaintiff within four weeks with advance copies to the learned counsel for the plaintiff who may file replications to the written statements alongwith affidavit of admissions denial of documents filed by defendants No.2 & 3 within four weeks thereafter. Only one opportunity shall be given to the defendants No.2 & 3 to do the needful. 22. The case be listed now for framing of issues on 21st July 2022. 23. The order be uploaded on the website forthwith. MARCH 02 2022 ASHA MENON)

The law shelters everyone under the same light and should not be swirled for the benefit of a few: Jharkhand High Court

To condone the delay, discretion should not be based on the length of the delay but on sufficient and satisfactory explanation. The Hon’ble High Court of Jharkhand before The Hon’ble Acting Chief Justice Pradip Kumar Mohanty and The Hon’ble Justice Ananda Sen held such an opinion regarding the case of M/s Central Coalfields Limited Vs. Sarlu Mahato [I.A. No. 5437 of 2016 IN L.P.A. No. 209 of 2016 ]. The facts of the case were associated with the respondent’s interlocutory application under Section 5 of the Limitation Act, wherein it was prayed to condone the delay of 38 days for filing the instant petition. It was stated that it was not an intentional delay. A certified copy of the order was collected and thereafter the file was scrutinised by the respective department of the appellant company and some legal opinion was obtained. Afterwards, the file was sent to the Finance Director who was pleased to grant approval for filing the instant appeal. The counsel representing the respondent objected to the prayer of condoning the delay of 38 days and preferred to file a counter-affidavit and submitted that the limitation petition was frivolous, misconceived and not maintainable. He submitted that to frustrate the very object of Section 17(b) of the Industrial Disputes Act, 1947,  the appellant-company preferred LPA.  The case of Maniben Devraj Shah Vs. Municipal Corporation of Brihan Mumbai, (2012) 5 SCC 157 was referred wherein it was held that in cases of delay there might be a lapse on the part of the litigant concerned. However, if the delay was intentionally occasioned by the party to gain time, then the court must lean against the acceptance of the explanation. It was also reported that no proof or document was presented to support that the file was ever moved to place before the Finance Director.  Considering all the facts and submissions The Hon’ble Court held “In view of the aforesaid judgments cited hereinabove, this Court comes to a finding that the appellant-company has committed gross negligence in delaying and processing the matter for preferring the instant Letters Patent Appeal before this Court. leisurely moving the file from one department to another department after knowing the fact that the workman obtained interim order and, therefore, delay of 38 days has deliberately occurred due to latches on the part of the appellant-company. Therefore, this Court is not inclined to condone the delay of 38 days in preferring the present Letters Patent Appeal. Accordingly, I.A. No. 5437 of 2016 stands dismissed.”

IN THE HIGH COURT OF JHARKHAND AT RANCHI I.A. No. 54316 IN L.P.A. No. 2016 M s Central Coalfields Limited through its Project Officer Binesh Sharma son of Laldeo Sharma resident of Kuju Colliery P.O. Kuju P.S. Mandu District Ramgarh … … Appellant Versus Sarlu Mahato son of Latu Mahato resident of village Dulmi P.O. Harhand Kandar P.S. Mandu District Ramgarh. … Respondent CORAM: HON’BLE THE ACTING CHIEF JUSTICE HON’BLE MR. JUSTICE ANANDA SEN. For the Appellant : Mr. D.K. Chakraverty Advocate For the Respondent : Mr. Yogendra Prasad Advocate. 28th November 2016 Order No. 07 : Dated I.A. No. 54316 Heard Mr. D.K. Chakraverty learned Counsel appearing for the appellant and Mr. Yogendra Prasad learned counsel appearing for the respondent on the Interlocutory Application under Section 5 of the Limitation Act being I.A. No. 54316 wherein prayer has been made to condone the delay of 38 days in filing the instant appeal. Mr. D.K. Chakraverty learned counsel appearing for the appellant submits that there is a delay of 38 days in preferring the instant LPA. The delay is not intentional and there is no latches on part of the appellant. The order was passed on 27.1.2016 in WP(L) No. 5469 2014. Thereafter the appellant contacted the office of the lawyer to obtain the certified copy of the said order. Thereafter the lawyer applied for the certified copy and obtained the same and forwarded the same to the appellant company. Thereafter the file was scrutinized by the concerned department of the appellant company and some legal opinion was obtained from their lawyer and ultimately the appellant company took a decision to prefer an appeal for which approval was required to be taken from the Directorof the Company. Thereafter the file was sent to the Directorwho also sought for certain documents and record and ultimately he was pleased to grant approval for filing the instant appeal and thereafter appellant company contacted their panel lawyer and after discussing the matter got the appeal drafted and the same was presented for filing on 21.4.16. Therefore the delay of 38 days in filing the instant appeal has occurred learned counsel for the appellant relies upon a judgment in the case of Executive Officer Antiyur Town Vs G Arumugam by Legal Representatives reported in 3 SCC 569 wherein there was a delay of 1373 days and the same was condoned. In view of the above decision the learned counsel for the appellant prays to condone the delay of 38 days in filing the present appeal. Mr. Yogendra Prasad learned counsel for the respondent vehemently objects the prayer made for condoning the delay of 38 days in preferring the instant appeal by filing a counter affidavit stating therein that this limitation petition is frivolous misconceived and not maintainable. The appellant company in order to frustrate the very object of Section 17(b) of the Industrial Disputes Act 1947 has preferred the present LPA and he further submits that this LPA has been filed against the interim order dated 27.1.2016 in order to harass the workmen and therefore deliberate delay has been caused just to deprive the workmen to get the fruit of Section 17(b) of the Industrial Disputes Act. He relies upon the judgment of the Hon ble Supreme Court in the case of State of Uttar Pradesh and Anr. V. Amarnath Yadav reported in 2 SCC 422 wherein it has been held that the delay caused by moving the file from one department to another department is not a sufficient cause to condone the delay. In the aforesaid judgment the decision rendered in the case of Postmaster General Vs. Living Media India Ltd. reported in 3 SCC 563 has been relied wherein Hon ble the Supreme Court has deprecated such practices on the part of the Government authority Departments in the following words. “27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides a liberal concession has to be adopted to advance substantial justice we are of the view that in the facts and circumstances the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government In our view it is the right time to inform all the government bodies their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort there is no need to accept the usual explanation that the file was kept pending for several months years due to considerable degree of procedural red tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few 30. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates according to us the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly the appeals are liable to be dismissed on the ground of delay.” Learned counsel for the respondent also relies upon the decision in the case of Maniben Devraj Shah Vs. Municipal Corporation of Brihan Mumbai reported in 5 SCC 157 in which at para 18 it has been held as under “18. In N. Balakrishnan v. M. Krishnamurthy the Court went a step further and made the following “9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding much less in revisional jurisdiction unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court 11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium12 SCC 693 which followed the judgment of the Maniben Devraj Shah Vs. Municipal Corporation of Brihan Mumbai reported in5 SCC 157. It has been held in the aforementioned judgment that to condone the delay discretion should be based not on length of delay but on sufficient and satisfactory explanation. Counsel for the respondent further relies upon the decision in the case of Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and Others reported in 2013) 12 SCC 649 wherein in paragraph 21 22.1 to 22.4 it has been held as under “21. From the aforesaid authorities the principles that can broadly be culled out are 21.1. There should be a liberal pragmatic justice oriented non pedantic approach while dealing with an application for condonation of delay for the courts are not supposed to legalise injustice but are obliged to remove injustice 21.2. The terms “sufficient cause” should be understood in their proper spirit philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact situation 21.3. Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis 21.4. No presumption can be attached to deliberate causation of delay but gross negligence on the part of the counsel or litigant is to be taken note of 21.5. Lack of bona fides imputable to a party seeking condonation of delay is a significant and 21.6.It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice 21.7. The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play 21.8.There is a distinction between inordinate delay and a delay of short duration or few days for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart the first one warrants strict approach whereas the second calls for a liberal delineation 21.9. The conduct behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach 21.10.If the explanation offered is concocted or the grounds urged in the application are fanciful the courts should be vigilant not to expose the other side unnecessarily to face such a litigation 21.11. It is to be borne in mind that no one gets away with fraud misrepresentation or interpolation by taking recourse to the technicalities of law of limitation 21.12. The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual 21.13.The State or a public body or an entity representing a collective cause should be given some 22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are 22.1. An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system 22.2. An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically 22.3. Though no precise formula can be laid down regard being had to the concept of judicial discretion yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional 22.4.The increasing tendency to perceive delay as a non serious matter and hence lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed of course within legal In the instant case the ground for condonation of delay is set forth in paragraph 3 of the petition filed under Section 5 of the Limitation Act which is quoted here in below: “That it is stated that the appellant after coming to learn about the judgment order dated 27.1.2016 contacted their lawyer who advised them to move for appeal. Thereafter after discussing the matter with officials the lawyer was advised to obtain the certified copy and thereafter the lawyer applied for certified copy and after obtaining the same it was forwarded to the appellant company. Thereafter the file was scrutinized by the concerned department of the appellant company and some more legal opinion was obtained from their lawyer and ultimately the appellant company took a decision to prefer an appeal for which approval was required to be taken from the Director(Finance) of the Company. Accordingly the file was sent to the Director Finance) who also sought for certain documents and record and ultimately was pleased to grant approval for filing the instant appeal and thereafter the appellant company contacted their panel lawyer and after discussing the matter got the appeal drafted and the same was presented for filing on 21.4.2016 but in course thereof a delay of about 38 days has occurred. The ground is that the appellant being a public sector undertaking several formalities are required to be followed and therefore the statement made in paragraph 3 of the Limitation Petition is absolutely vague. There is no document to support that the file was ever moved to place before the Directorand if at all placed when it was placed and when the approval was given. At least some evidence should have been brought on record by the Company but in support of the submission made in paragraph 3 and 5 of the petition. No document whatsoever has been brought on record. Moreover as referred earlier the case of State of State of Uttar Pradesh and Anr. V. Amarnath Yadav reported in 2014) 2 SCC 422 the Hon ble Supreme Court held that the delay caused in moving the file from one department to another is not a sufficient cause to condone delay. In view of the aforesaid judgments cited herein above this Court comes to a finding that the appellant company has committed gross negligence in delaying and processing the matter for preferring the instant Letters Patent Appeal before this Court. The leisurely moving the file from one department to another department after knowing the fact that the workman obtained interim order and therefore delay of 38 days has deliberately occurred due to latches on the part of the appellant company. Therefore this Court is not inclined to condone the delay of 38 days in preferring the present Letters Patent Appeal. Accordingly I.A. No. 54316 stands dismissed. LPA No. 2016 In view of the order passed in I.A. No. 54316 this Letters Patent Appeal stands dismissed having been barred by limitation. Sharma Anu

There is no Requirement to Interfere the Orders of Court when Allegations were Proved beyond any Reasonable Doubt: Supreme Court of India

A call by using the mobile phone of the deceased just to divert the attention of the police so that he could escape in case the locked door was opened proved and established beyond reasonable doubt. This honorable judgement was passed by Supreme Court of India in the case of Shanmugam vs. State if inspector of police of Tamil Nadu [CRIMINAL APPEAL NO.900 OF 2010] by The Hon’ble Mr. Justice Sanjeev Khanna and the Hon’ble Mr Justice S. Abdul Nazeer. This appeal by special leave was filed against the judgment passed by the High Court of Judicature at Madras, wherein the conviction of the present appellant was upheld and his appeal was dismissed. The appellant was arrested by Sub-Inspector of Police for offences punishable under Sections 51 r/w2 63, 52 A r/w 68-A and 65 of the Copyright Act, 1957. He was then brought to the Office of the Video Piracy Cell and was kept in custody in the same room as that of the Head Constable Kaliappan. The appellant made an attempt to escape from the custody by attacking the deceased on his head with an iron stool causing his death. However, he was caught by while attempting to escape. The learned Additional Sessions Judge convicted the appellant for the offences punishable under Section 302 of I.P.C. and under Sections 224 r/w 511 of I.P.C. and sentenced him to undergo imprisonment for life and also to pay a fine of Rs.500/-. Aggrieved by the order of conviction, the appellant appealed before the High Court who confirmed the conviction of the appellant and dismissed the appeal. Being aggrieved the appellant has approached this Court by way of Special Leave to Appeal. The learned council argued that the conviction on the basis of the assumptions is not sustainable in law. The court opinioned that, “It appears that the accused had made a call to the control room by using the mobile phone of the deceased just to divert the attention of the police so that he could escape in case the locked door was opened. Perusal of Ex.P.10 shows that on receipt of the phone call, an ambulance was sent to the Street, near Kalyan Silks, which came back after waiting from 3.30 a.m. to 4.30 a.m. as nobody was found injured at the place of commotion.”

IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.900 OF 2010 SHANMUGAM Appellant(s STATE BY INSPECTOR OF POLICE TAMIL NADU JUDGMENT S. ABDUL NAZEER J This appeal by special leave is filed against the judgment dated 26.02.2008 in Crl. Appeal No.5007 passed by the High Court of Judicature at Madras wherein the conviction of the present appellant was upheld and his appeal was Brief reference to the facts as per the prosecution are necessary for the disposal of this case. The appellant was arrested by PW 1 Sub Inspector of Police on 09.09.2005 at about 7:30 p.m. for offences punishable under Sections 51 r w 63 52 A r w 68 A and 65 of the Copyright Act 1957. He was then brought to the Office of the Video Piracy Cell at 11:30 p.m. and was kept in custody in the same room as that of the Head Constable Kaliappan and PW 2while attempting to Upon investigation a charge sheet was filed against the appellant and the case was committed to the learned Additional Sessions Judge Fast Track Court No. II Coimbatore in S.C. No.19 of 2006. The appellant pleaded not guilty and claimed trial. After considering the arguments and analysing the evidence on record the learned Additional Sessions Judge convicted the appellant for the offences punishable under Section 302 of I.P.C. and under Sections 224 r w 511 of I.P.C and sentenced him to undergo imprisonment for life and also to pay a fine of Rs.500 . Further in default thereof to undergo rigorous imprisonment for one month for the offence under Section 302 of I.P.C. and to undergo rigorous imprisonment for one year for the offence under Section 224 r w 511 of I.P.C. Aggrieved by the order of conviction the appellant appealed before the High Court being Crl. Appeal No.508 of 2007. On 26.02.2008 the Division Bench of the High Court after thorough analysis of facts and circumstances confirmed the conviction of the appellant and dismissed the appeal Being aggrieved the appellant has approached this Court by way of Special Leave to AppealNo.4700 2009 The learned Counsel Mr. V. Ramasubramanian appearing on behalf of the appellant has contended that the case of the prosecution is based upon circumstantial evidence alleging that there is no circumstance pointed out by the prosecution to prove the guilt of the accused appellant beyond all reasonable doubt. Thus he argues that the conviction on the basis of the assumptions is not sustainable in law. 6. On the other hand the learned Counsel Mr. M. Yogesh Kanna appearing on behalf of the State while supporting the judgment of the High Court has contended that this Court should take a wholesome view instead of viewing circumstances in isolation in order to conclude whether a complete chain of events has been proved by the prosecution or not. 7. We have carefully considered the submission of the learned counsel for the parties and perused the impugned judgment and other materials placed on record It is not in dispute that the appellant accused was arrested by the then Sub Inspector of Police Video Piracy Cell at 7.30 p.m. on 09.09.2005 and at that time the deceased was with him. The evidence of PW 1 discloses that at the relevant point of time the deceased did not have any residence. Therefore he requested PW 1 to permit him to stay in the officealong with the accused where the accused was brought. PW 6 has stated that till 2.00 a.m. on 10.09.2005 PW 1 was in the office and later on left the office leaving the deceased constable and the accused inside the office by locking the door from outside as per the request of the deceased. This version of PW 1 has not been challenged in the cross examination. Since the office premises was not shown in the rough sketch the evidence of PW 6 was also questioned However this is nothing but an irregularity on the part of the I.O. PW 6 has categorically stated that he did not have residence in the nearby place. Therefore he remained at the office to finish his pending work. Keeping in mind the above situation we are of the view that the evidence of PW 6 cannot be doubted and if the same is accepted the story concocted by the accused that the deceased was murdered by PW 1 is only to falsely implicate PW 1 10. The evidence adduced by PW 1 was also corroborated by the evidence of the Head Constable who was accompanying PW 1 at around 7.30 a.m. on 10.09.2005. It is clear from the evidence of PW 2 that when PW 1 opened the locked door the accused tried to escape but was caught at the spot. This deposition has also remained unchallenged in the cross examination. It is in the evidence of PW 9 that on 10.09.2005 around 2.30 a.m. she was on duty of receiving PCR calls. She deposed that on that day she received a call from the accused who informed about some commotion said to have taken place in 6th Street on 100 feet road near Kalyan Silks. The accused did not call to attribute the commission of the offence to PW 1 This call was made deliberately to escape from the room where he was locked. This evidence was corroborated by PW 10 who was working as an operator at that time in the police control room. After getting the information of commotion from PW 9 PW 10 passed on the message to the Sub Inspector (PW 7 who was on patrolling duty. Accordingly PW 7 proceeded to the place of alleged occurrence. Since nobody was there in the said place PW 7 contacted the mobile number of the informer disclosing his identity but the same was instantly disconnected. This is evident from Ex.P.12. The said mobile number belongs to the deceased constable. The evidence of PW 7 PW 9 and PW 10 corroborated with each other in this regard. It appears that the accused had made a call to the control room by using the mobile phone of the deceased just to divert the attention of the police so that he could escape in case the locked door was opened. Perusal of Ex.P.10 shows that on receipt of the phone call an ambulance was sent to the Street near Kalyan Silks which came back after waiting from 3.30 a.m. to 4.30 a.m. as nobody was found injured at the place of commotion. 12. Perusal of the evidence in its entirety clearly shows that the offence had taken place at 2.00 a.m. by which time PW 1 had already left the place of occurrence and at the relevant point of time the accused and the deceased were alone inside the premises of the office of the Video Piracy Cell. Under the above circumstance it was for the accused to explain under what circumstances the deceased was dead. In our view the accused has failed to offer any cogent explanation in this regard. We are of the view that the chain of circumstances has been completely proved and established beyond reasonable doubt. Therefore we find no reason to interfere with the concurrent findings of the courts below. 13. Accordingly this Appeal fails and is accordingly dismissed. The order of the Division Bench of the High Court in Crl. Appeal No. 5007 dated 26.02.2008 is upheld. (ASHOK BHUSHAN (S. ABDUL NAZEER New Delhi April 6 2021 …. J (HEMANT GUPTA

There can be no rigid standard or yardstick for acceptance or rejection of a dying declaration: Supreme Court of India

A dying declaration is admissible in evidence under Section 32 of the Indian Evidence Act, 1872 and it alone can also form the basis for conviction if it has been made voluntarily and inspires confidence. This extensive judgment was passed by the Hon’ble supreme court of India in the case of Naresh Kumar v. Kalawati and others [CRIMINAL APPEAL NO. 35 OF 2013] by Justice NAVIN SINHA. The appellant was the brother of the deceased who charged the respondent 1 and 2 under Sections 498A and 302/34 I.P.C., affirmed by the High Court. The case of the prosecution was based on circumstantial evidence consisting of the dying declaration of the deceased. While the respondents were acquitted as the dying declaration was held not to have been proved in accordance with law and it did not inspire confidence.  It vacillated between blaming the husband and the sister­in­law, coupled with the absence of any certificate by the Doctor that the deceased was in a fit state of mind when she made the dying declaration. The court stated that “Though the discretionary jurisdiction of this Court under Article 136 of the Constitution is very wide, it has been a rule of practice and prudence not to interfere with the concurrent finding of facts arrived at by two courts, by a reappreciation of evidence, to arrive at its own conclusion, unless there has been complete misappreciation of evidence, or there is gross perversity in arriving at the findings, causing serious miscarriage of justice.   If the view taken by two courts is a reasonably possible view, this Court would be reluctant to interfere with a concurrent order of acquittal.” The court considered the facts of this case and stated that “the facts of the present case in the background of the aforesaid enunciation of the law, to examine if the impugned orders call for interference by us, or not.    The deceased was married to respondent no. 2 about 1½ years ago.  She suspected a promiscuous relationship between the respondents. The deceased even after 1½ of marriage was unable to conceive.  A probable defense has been taken that she committed suicide out of frustration.” Giving the benefit of doubt to the accused, the court stated that “If there are contradictions, variations, creating doubts about its truthfulness, affecting its veracity and credibility or if the dying declaration is suspect, or the accused is able to create a doubt not only with regard to the dying declaration but also with regard to the nature and manner of death, the benefit of the doubt shall have to be given to the accused. Therefore, much shall depend on the facts of a case.  There can be no rigid standard or yardstick for acceptance or rejection of a dying declaration.”

The appellant brother of the deceased is in appeal law and husband of the deceased of the charge under Sections The deceased suffered 95% burn injuries on 17.09.1991 at circumstantial evidence consisting of the dying declaration of the 4. Shri Rajendra Singhvi learned counsel for the appellant the matrimonial home within seventeen months of her marriage the deceased had stated that she had been put on fire by her upon her while she was making tea. Soon thereafter she made another statement to P.W. 25 the Assistant Sub­Inspector in presence of the said Dr. Anant Sinha and who also signed the statement that her elder sister­in­law had poured kerosene over was taken on her statement as her fingers had suffered burn injuries. The mere absence of any endorsement in the dying None of the relatives of the deceased were present at that time The mere failure of the prosecution to examine Dr. Anant Sinha all efforts to have the Doctor summoned. P.Ws. Nos. 3 4 and 5 the mother the sister and the appellant have also stated that the The respondents have also wrongly been acquitted of the charge under Section 498A. Reliance was placed upon State of Rajasthan vs. Parthu12 SCC 754 Sukanti Moharana vs State of Orissa 9 SCC 163 and Heeralal vs. State of Madhya Pradesh 12 SCC 671 in support of the dying Shri Ramesh Gupta learned Senior Counsel appearing for deceased was only stated to be conscious. There is no evidence and that he was present during recording of the same. The her on fire. There was no reference to the sister­in­law or any demand for dowry. Subsequently she stated that she had been on fire by her sister­in­law. Initially the deceased did not name named respondent no.1 in her statement to P.W. 25. The respondents had taken the defence that the deceased suspected herself on fire. The view taken by two courts being a reasonably and have also perused the evidence available on the record Though the discretionary jurisdiction of this Court under Article rived at by two courts by a reappreciation of evidence to arrive at of evidence or there is gross perversity in arriving at the findings causing serious miscarriage of justice. If the view taken by two vs. Sanjay Thakran & Ors. 3 SCC 755 it was observed: arrived at by any reasonable person and therefore because two views are possible the court of appeal is perverse and the court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court in such circumstances to reappreciate the evidence to arrive at a just decision on the basis of material placed on record to find out whether any of the ac­ 7. We shall now consider the facts of the present case in the the impugned orders call for interference by us or not. The suspected a promiscuous relationship between the respondents The deceased had suffered 95% burn injuries at home on the police at the hospital that she had been set on fire by her brother while making tea. The MLC records her as being fully conscious. It is signed only by the Doctor who has not been examined. The deceased is then stated to have made a dying husband had brought her to the hospital. It bears her right toe impression as her hands were burnt. The statement bears the fire by respondent no.1. P.W. 5 has stated that both the for conviction if it has been made voluntarily and inspires confidence. If there are contradictions variations creating doubts dying declaration is suspect or the accused is able to create a on hearsay as deposed by P.W. 20 that she was set on fire by because his signature has been identified by P.W. 19 cannot 11. P.W. 25 who recorded the dying declaration does not state that was certified by a resident junior doctor separately but whose signature and endorsement is not available on the dying In Paparambaka Rosamma and others vs. State of Andhra Pradesh 7 SCC 695 distinguishing between ment”. It has come on record that the injured Smt formed the post­mortem stated that the injured had lier the prosecution case solely rested on the dying declaration. It was therefore necessary for the prose­ end by Dr Smt K. Vishnupriya Devi did not comply with the requirement inasmuch as she has failed to certify that the injured was in a fit state of mind at the time of recording the dying declaration that “patient is conscious while recording the state­ be safe to accept the dying declaration as a fit state of mind. In medical science two stages In the facts and circumstances of the present case considering that the statements of the deceased have vacillated make the dying declaration including the presence of the Doctor the veracity and truthfulness of the dying declaration remains 14. Parthu is distinguishable on its facts. Despite the absence of a certificate of fitness of state of mind on the dying 15. Sukanti is again distinguishable on its own facts as been made on the dying declaration but there is contemporaneous evidence in the form of Ext. 9 1 The Doctor who recorded the dying and in a fit mental condition to make such a clear that the aforesaid dying declaration could be the said statement gave a vivid account of the In Heeralal noticing the discrepancies in the two dying declarations it was held that the conviction could not be 17. The appeal is therefore dismissed

Accused can be convicted for rape solely on testimony of prosecutrix if it is trustworthy and corroborated by evidence: High Court of Orissa

The testimony of a victim of sex offence is entitled to great weight before the court and therefore the accused person can be convicted for rape solely on the testimony of the victim, given that is trustworthy and well corroborated by medical evidence or other witnesses. This was held in the judgement passed by a single member bench of the High Court of Orissa consisting of Justice S.K. Sahoo in the case of Madhusudan Naik v State of Orissa [JCRLA No. 74 of 2016] on the 15th of July 2021. As per the prosecution’s case, the victim was attending the call of nature at a Nala near her village Jurapali in Sambalpur. The appellant allegedly came up from behind her and forcibly started committing sexual intercourse with her. Upon hearing the victim screaming, other villagers including the appellant’s brother came rushing towards the scene of crime as the appellant fled from there. On the same day, the victim lodged a First Information Report before the A.S.I. of Garposh and consequently it was filed against the Appellant under Section 376 of the Indian Penal Code for the offence of rape. Over the course of investigation, the victim as well as 13 other witnesses were examined and questioned. Additionally a thorough medical examination was also conducted. The medical examination indicated severe injuries on her neck, waist and right hand. However the appellant’s counsel contended that none of the evidence present was enough to convict the appellant beyond all doubt. The appellant counsel also pointed out a small contradiction that the victim claimed that the appellant ran away as the villagers reached the scene where another witness claimed that the appellant started running away as they started beating him. The High Court however refused to accept this argument and stated that the victim of a rape crime is often the best witness as she is the least likely person to exculpate the real offender. It was also added that her statement corroborated to the medical evidence and witness statement built a very strong case and the tiny irrelevant contradictions were to be ignored.

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.

The negative attitude of the Insurance Companies in repudiating the claims, defeats the very purpose of the Law Makers drafting the Insurance Act: Karnataka State Consumer Disputes Redressal Commission

The Commission opined that, when Insurance Company collects premiums, it should also take responsibility to properly address the complaints of its poor clients, who pay the premiums with extreme difficulty in the hope that the Sum Assured in the Insurance Policy will rescue them in case of crisis. This was held in the matter of M/s United India Insurance Co. Ltd v. Mr. B S Sathish [ Appeal No. 955/2018] before Hon’ble President Mr. Justice Huluvadi G Ramesh. The brief facts of the case are as follows; the Complainant insured his Cow under the Micro Insurance Product Cattle Insurance Policy from the Opposite Party (OP).  Rs. 50,000 was insured till 10th August 2017. The Cow died on 29th May 2017. When he claimed the insurance, OP rejected his claim on the ground that the Ear Tag No. of the policy was not submitted by him, while not challenging the PM Report or the Death Certificate dated 1st June 2017.  The Death Certificate indicated that as on date of death , the Insurance Policy was still in effect. The District Commission allowed the Complaint for deficiency of service against the OP. Aggrieved by this decision, the OP sought an appeal before the State Commission claiming that the 8th Term& Condition explicitly mentions the ‘No Tag No Claim’. After perusing the submissions of both the parties, the State Commission held that, “the Policy was in force and OP is liable to honor the Claim of the Complainant. Also, when the Insurance Companies happily collects the premiums, it should also take moral responsibility to resolve the grievances of its poor clients, who, with great difficulty pay the premiums, with a fond hope that when there is an absolute crisis, the Sum Assured in the Insurance Policy will come to their rescue. The negative attitude of the Insurance Companies in repudiating the claims, defeats the very purpose of the Law Makers drafting the Insurance Act and its further fine tuning from time to time, to reduce the grievance of the Insured. However, with regard to rate of interest awarded at 9% p.a by the District Forum is concerned, we are of the considered opinion that it is on higher side, hence, it is felt appropriate to reduce it to 6% p.a which would meet the ends of the justice and accordingly, Impugned Order is modified in the following terms.”

APPEAL No.955 2018 Date of Filing :26.06.2018 Date of Disposal : 26.10.2021 BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION BENGALURUHON’BLE Mr JUSTICE HULUVADI G RAMESH : PRESIDENT Mr K B SANGANNANAVAR: JUDICIAL MEMBER Mrs DIVYASHREE M:LADY MEMBER APPEAL NO.955 2018 M s United India Insurance Co. Ltd. Regional Office Krishi Bhavan 5th Floor Nrupathunga Road Near Hudson Circle Bengaluru 560001. Rep. by its Regional Manager By Mr Y K Sheshagiri Rao Advocate) Versus Mr B S Sathish S o Mr Shiva Kumar Major R at Bettadahalli village Gubbi Tq. Tumkuru District 572222 By Mr V B Siddaramaiah Advocate) Respondent Mr. JUSTICE HULUVADI G RAMESH : PRESIDENT This Appeal is filed under Section 15 of Consumer Protection Act 1986 aggrieved by the Order dated 28.05.2018 passed in Consumer Complaint No.85 2017 by District Consumer Disputes Redressal Forum Tumkuru (for short the District Forum). 2 APPEAL No.955 2018 The brief facts of the case are that the Complainant insured his Cow under Micro Insurance Product Cattle Insurance Policy bearing No.0714844716P107631819 with Ear Tag No. 136015 with the Sum Assured being Rs.50 000 valid till 10.08.2017 However when the Cow died on 29.05.2017 submitted a Claim to OP but OP Repudiated the claim on the ground that the Ear Tag on the Cow was not submitted. Hence Complainant lodged the instant Complaint under Section 12 of CP Act seeking direction to the OP to settle the Insurance Claim of Rs.50 000 with interest @ 18% p.a from the date of claim application till realisation Rs.50 000 towards mental agony torture and pain and cost. OP while contesting the case denied the allegation of the Complainant and pleaded that in the event of death of animals covered under their Insurance Policy scheme Claims if any shall be settled if only the Claim is received along with the surrender of Ear Tag. In the event of loss of Ear Tag it is the responsibility of the insured to give notice to the OP to get the animal tag. As per the Terms & Conditions of the Policy Complainant has not met this requirement and thus OP has not committed any deficiency in service as alleged and sought Dismissal of the Complaint. The District Forum after an enquiry deemed it fit to allow the Complaint and directed the OP to settle the Insured amount of Rs.50 000 along with interest at 9% p.a from the date of Claim till realisation with Cost of Rs.5 000 within 30 days from the Date of the Order. Aggrieved by the said Order OP is in Appeal taking a stand that as per Terms &Condition No. 8 of the Policy ‘no Tag no Claim’’ is not liable to admit the Claim of the ComplainAant and thus seeks to set aside the Impugned Order by allowing the Appeal. Heard the arguments of the Learned Counsel for the Appellant. None represented the Respondent. 3 APPEAL No.955 2018 Perused the Records & the Impugned Order. It is not in dispute that the Complainant insured his Cow under Micro Insurance Product Cattle Insurance Policy from OP vide Policy bearing No.0714844716P107631819 Ear Tag No. 136015 with Sum Assured of Rs.50 000 valid till 10.08.2017 and the Cow died due to ill health on 29.05.2017. The reasons for Repudiation of the Claim by OP was that the Ear Tag No.136014 was not submitted to honour the Claim. However OP has not disputed the PM Report nor the Death Certificate dated 01.06.2017 and in this regard OP has not taken any steps to investigate the matter. In the circumstances Death Certificate issued by Dr T Kanagaraj Veterinary Consultant Tumkur reveals the death of Cow and as on the date of death the Policy was in force and OP is liable to honour the Claim of the Complainant. Also when the Insurance Companies happily collects the premiums it should also take moral responsibility to resolve the grievances of its poor clients who with great difficulty pay the premiums with a fond hope that when there is an absolute crisis the Sum Assured in the Insurance Policy will come to their rescue. The negative attitude of the Insurance Companies in repudiating the claims defeats the very purpose of the Law Makers drafting the Insurance Act and its further fine tuning from time to time to reduce the grievance of the Insured. However with regard to rate of interest awarded at 9% p.a by the District Forum is concerned we are of the considered opinion that it is on higher side hence it is felt appropriate to reduce it to 6% p.a which would meet the ends of the justice and accordingly Impugned Order is modified in the following ORDER is allowed in part. Consequently Order dated 28.05.2018 passed in Consumer Complaint No.85 2017 by District Consumer Disputes Redressal Forum Tumkuru is hereby modified 4 APPEAL No.955 2018 and directed the OP to pay the Assured Sum of Rs.50 000 along with interest @ 6% p.a from the Date of Claim till realisation with cost of Rs.5 000 to the Respondent Complainant within 30 days from the date of receipt of this Order. The statutory Amount in deposit is ordered to be transferred to the District Commission for disbursement to the Complainant. Send a copy of this Order to the District Commission as well as to the parties concerned immediately. Lady Member Judicial Member President

State of Jharkhand & Ors V/s Tata Steel Ltd. & Ors

An interpretation which will result in an anomaly or absurdity should be avoided and where literal construction creates an anomaly, absurdity and discrimination, statute should be liberally construed even slightly straining the language so as to avoid the meaningless anomaly The background of the facts M/s. Tata Steel Limited, the 1st respondent herein, had established a manufacturing unit for production of HRP, rounds, structural and other iron and steel products in Dhanbad situated in erstwhile Bihar in the light of industrial policy formation by the State of Bihar on 22.12.1995 in order to attract investments.The said policy was issued in exercise of power conferred by Section 23A of the Bihar Finance Act, 1981 (for short, “the 1981 Act”) and the purpose of framing the policy was industrial growth of the State. The said policy was issued in exercise of power conferred by Section 23A of the Bihar Finance Act, 1981 (for short, “the 1981 Act”) and the purpose of framing the policy was industrial growth of the State.The matter stood thus, the Bihar Reorganisation Act, 2000 came into existence on 15.11.2000 as a result of which Jamshedpur became part of a newly carved out State, namely, Jharkhand. After coming into force of the new State, on 15.12.2000, the Governor of Jharkhand by notification ordered that the 1981 Act, the Central Sales Tax (Bihar) Rules, 1956 and the notifications made thereunder, etc. amongst other Acts, Rules and Regulations, shall be deemed to be in force in the entire State of Jharkhand w.e.f. 15.11.2000.On 21.12.2000, the successor State issued an exemption certificate as contemplated in earlier notification issued by the Bihar State Finance and Commercial Taxes Department exempting the new units which also included the unit established by the 1st respondent, from the purchase tax as well as the sales tax on purchase and sales made in regard to the cold rolling mill.The exemption was issued by the Joint Commissioner who had held HR and CR products different, thus holding the respondent eligible for compensation under Industrial Policy. However, the Commissioner of Commercial Taxes, Jharkhand initiated a suo motu revision under Section 46(4) of the 1981 Act and placing reliance on Telangana Steel Industries v. State of A.P.1 held that the two products must be treated as the same commodity and the products not being different commodities, the benefit of exemption was not available.A series of appeals were filed by both the parties wherein ultimately this court reversed the previous High Court order and held that the present respondent was eligible for exemption. As the facts would unveil, on 01.04.2006, Jharkhand Value Added Tax Act, 2005 (for brevity, “JVAT Act”) came into force.Prior to that, through a notification SO no. 202 dated 30.03.2006 issued under Section 7(3) of the 1981 Act, the State of Jharkhand had withdrawn notification nos. 478 and 479 dated 22.01.1995 and SO nos. 57 and 58 dated 02.03.2000 with immediate effect, as a result of which the facility of exemption from payment of sales tax on the purchase of raw materials and also facility of exemption of sales tax on its finished products was withdrawn.On 30.03.2006, a notification bearing SO no. 202 under Section 8(5)(a) of the Central Sales Tax Act, 1956 was issued withdrawing notification no. 481 dated 22.12.1995. In the pursuance of the provisions of the Act, the respondent filed for deferment of tax on April 15th, 2005. The said application seeking deferment of tax was rejected vide order dated 05.05.2006. Though the 1st respondent filed the said application, it moved the High Court in W.P.(T) No. 2664 of 2006 challenging the constitutional validity of Section 95(3)(ii) and Section 96(3) of the JVAT Act.The same was allowed by the division bench. ISSUE BEFORE THE COURT:Whether the payment of tax deferred tax was made within the prescribed period? RATIO OF THE COURT:The High Court, as is manifest, while quashing the notification nos. 201 and 202 had directed the State to grant deferment of tax to the 1st respondent under Section 95(3) (ii) of the JVAT Act. The court mentioned that the exemption was claimed and not granted, the 1st respondent had preferred an appeal by special leave but the same has already been disposed of. It has been fairly stated at the Bar that the issue that is seminal to the present lis is benefit of deferment and the period of repayment.It was the admitted position that the assessee had collected the tax from the consumers for the period 01.04.2006 to 31.07.2008 and stopped collecting tax after 31.07.2008. It is pertinent to note here that on 12.07.2013, in IA No. 1 of 2013, the following order came to be passed the court had directed the payment of Rs. 186.70 cr in small amounts to the appellant applicant.The singular issue for consideration was the interpretation of the deferment policy in the context of provisions enumerated under the JVAT Act. Section 95(3) (ii) envisages that a registered dealer who was enjoying the benefit of exemption of tax is allowed to convert the facility of exemption from payment of tax under the JVAT Act into the facility of deferment of payment of tax for the unexpired period. The assessee-company had availed the deferment and paid the amount of tax and the issue was that the assessee had failed to make the payment of deferred tax under the prescribed period.The court examined the relevant paras of S.O No. 480 dated 22.12.1995 and referring the case of Hansraj Gordhandas v. H.H. Dave, Assistant Collector of Central Excise & Customs, Surat and Two ors relied upon by the respondent the court observed that that in a taxing statute there is no room for any intendment but regard must be had to the clear meaning of the words. The entire matter was governed wholly by the language of the notification.It had also been held by the Constitution Bench, if the tax-payer is within the plain terms of the exemption, it cannot be denied its benefits by calling in aid any supposed intention of the exempting authority. The court relied upon Maunsell v. Olins; Utkal Contractors and Joinery Pvt. Ltd. and others v. State of Orissa and others and M/s Doypack Systems Pvt. Ltd. v. Union of India & others wherein it was laid down that Not infrequently one ‘rule’ points in one direction, another in a different direction. In each case we must look at all relevant circumstances and decide as a matter of judgment what weight to attach to any particular ‘rule’.”In this regard, reference to Mahadeo Prasad Bais (Dead) vs. Income-Tax Officer ‘A’ Ward, Gorakhpur and another was made. In the said case, it was held that an interpretation which will result in an anomaly or absurdity should be avoided and where literal construction creates an anomaly, absurdity and discrimination, statute should be liberally construed even slightly straining the language so as to avoid the meaningless anomaly.The first part of sub-para (1) of para 5 stipulates that the repayment of deferred tax amount shall have to be done after the completion of eligibility period of deferment or the prescribed percentage limit of fixed capital investment, whichever reaches earlier. In the case at hand, the period of exemption was converted to period of deferment of tax. It is for 8 years. There is no dispute that the assessee had availed the exemption for a period of 6 years and he is entitled to deferment of tax for the rest of the period which commenced in 2006. The notification lays a clear postulate that repayment of total deferred amount shall have to be done in ten equal six monthly instalments in such a manner so as to be completed within 13 years from the date of start of deferment.The court observed that the words “from the date of start of deferment” have to have nexus with the policy stated in the beginning. The policy would apply if the unit has commenced between 01.09.1995 and 31.08.2000; that it has a registration certification from the prescribed authority and that, most importantly, it has been given an eligibility certificate for the said purpose. The policy would come into play only if these conditions are satisfied and then the assessee will be allowed to have the benefit of deferment of sales tax on the sale of manufactured finished goods for a prescribed period. Therefore, the authority has been given the power to lay down the prescribed period for grant of deferment.The concept of exemption is distinct from the concept of deferment of tax. After the JVAT Act came into force, under the statutory provisions, there was no exemption and beneficiaries were entitled to convert to the scheme of deferment. The period remains intact, that is, 8 years. The repayment has to be done in equal six monthly instalments and that period is 5 years. The prescribed authority can grant an eligibility certificate but he has to keep in view the terms and conditions stipulated in the notification.Thus analysed, the irresistible conclusion is that the repayment schedule has to end on 31.08.2013 within a span of 5 years from the expiration of the eligibility period.The court also made it clear that the question of levy of penalty as envisaged under Rule 66 of the Rules should not be made applicable to the case at hand. DECISION HELD BY THE COURT: The assessee-1st respondent had already deposited the amount in pursuance of the order of this Court and regard being had to the nature of litigation, we direct that the 1st respondent-assessee shall pay 12% interest per annum and the said amount shall be deposited with the competent authority of the revenue within three months hence.

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO 4285 OF 2007 State of Jharkhand & Ors Versus Tata Steel Ltd. & Ors JUDGMENT Dipak Misra J M s. Tata Steel Limited the 1st respondent herein had established a manufacturing unit for production of HRP rounds structural and other iron and steel products in Dhanbad situated in erstwhile Bihar. The State of Bihar had on 22.12.1995 formulated an industrial policy for tax exemption and or deferment to such industrial units which started production between 01.09.1995 and 31.08.2000 The said policy was issued in exercise of power conferred by Section 23A of the Bihar Finance Act 1981and the purpose of framing the policy was industrial growth of the State. The policy stipulated that such industrial units should have the registration certificate indicating that the unit was eligible to have the benefits of the policy. The policy was issued with a view to create an atmosphere conducive for growth of industries and optimum utilisation of the natural resources available in the designated stipulated area. As is evident by the said policy the Government intended to attract investors from various parts of the country to invest in the identified areas The major incentive under the policy apart from others included eight years sales tax exemption on sale and purchase of material from the date of commencement of production as stipulated in the policy. Keeping in view the purpose incorporated in the policy exemption notification under the 1981 Act was issued. The appellant expressed its willingness to install a cold rolling mill in Jamshedpur by investing Rs. 2000 crores. After a final decision was taken upon due deliberation the 1st respondent sought a confirmation from the State of Bihar to assure the commitment to grant sales tax exemption as stated in the policy as an incentive. Number of meetings took place between the authorities of the State of Bihar and the 1st respondent and in pursuance of the discussion certain amendments in the policy took place as a consequence of which a communication was made to the 1st respondent for setting up a cold rolling mill with production capacity of 1.02 million tonnes requiring investment of Rs. 1874.04 crores on the project. Regard being had to the discussion and the communication the 1st respondent invested nearly Rs. 2000 crores on its own and the commercial production commenced from 01.08.2000 2. When the matter stood thus the Bihar Reorganisation Act 2000 came into existence on 15.11.2000 as a result of which Jamshedpur became part of a newly carved out State namely Jharkhand. After coming into force of the new State on 15.12.2000 the Governor of Jharkhand by notification ordered that the 1981 Act the Central Sales Tax Rules 1956 and the notifications made thereunder etc. amongst other Acts Rules and Regulations shall be deemed to be in force in the entire State of Jharkhand w.e.f. 15.11.2000. On 21.12.2000 the successor State issued an exemption certificate as contemplated in earlier notification issued by the Bihar State Finance and Commercial Taxes Department exempting the new units which also included the unit established by the 1st respondent from the purchase tax as well as the sales tax on purchase and sales made in regard to the cold rolling mill. Be it stated that the said certificate was issued after holding proper enquiry by the concerned Joint Commissioner. After due enquiry he had opined that though the raw materials for the manufacture of CR product is HR product the CR product is totally different both in its metallurgical components and the end use and the two products were commercially recognised as different products. Hence the cold rolled products manufactured by the new unit being different from the hot rolled product manufactured by the old unit the appellants were entitled to exemption of sales tax as provided under the industrial policy. On that score he had approved issuance of the certificate. However the Commissioner of Commercial Taxes Jharkhand initiated a suo motu revision under Section 46(4) of the 1981 Act and placing reliance on Telangana Steel Industries v. State of A.P.1 held that the two products must be treated as the same commodity and the products not being different commodities the benefit of exemption was not available. Being aggrieved by the order passed by the Commissioner the 1st respondent filed a writ petition before the High Court of Jharkhand which ultimately remanded the matter to the competent authority to examine whether HR product and CR product manufactured by the two units of the company are one and the same or two different products. The aforesaid order came to be assailed before this Court in Tata Iron & Steel Co. Ltd. v. State of Jharkhand and others2. The Court taking note of various aspects and the submissions raised at the bar held as 1 1994 Supp.SCC 259 2 7 SCC 242 “20. We are unable to accept this argument ei ther. First of all as noticed above it is not the case of the State that the product manufactured by the appellant in its new unit is not CRM. It is not the case of the State that the existing unit ei ther by its machinery or by its process is capable of making HRM and not CRM or is capable of manufacturing both. Of course if such an issue were to be raised the burden would have been on the appellant to establish the same. When such an issue is not raised it is not necessary for the appellant to establish that fact by any such in trinsic evidence. The material produced before the Joint Commissioner was in our opinion suffi cient to decide whether the product manufac tured by the appellant is CRM or not and the said Joint Commissioner having given a positive find ing and that finding having not been interfered with by the Commissioner we think the High Court erred in remanding the matter for fresh in 21. It is true that normally as against an order of remand this Court hesitates to interfere since there is always another opportunity for an ag grieved party to establish its case. But in this case we should notice that the decision to estab lish an industrial unit was initiated by the appel lant as far back as in the year 1997. Based on a promise made in the industrial policy of the State of Bihar at every stage the appellants tried to verify and confirm whether they are entitled to the benefit of exemption or not and they were as sured of that exemption. It is based on these as surances that the appellant invested a huge sum of money which according to the appellant is to the tune of Rs 2000 crores but the State says it may be to the tune of Rs 1400 crores. Whatever may be the figure the fact still remains that the appellants have invested huge sums of money in installing its new industrial unit. At every stage of the construction progress and installation of the machineries the Government authorities con cerned were informed and at no point of time it was suspected that the new unit was going to manufacture HRM. The process of manufacturing HRM and CRM as could be seen from the experts’ opinion is totally different and the material on record also shows that the plant design for a new unit is for the purpose of manufacturing CRM These factors coupled with the fact that at no stage of the proceedings which culminated in the judgment of the High Court the respondent State had questioned this fact except for the technical ground taken by the Commissioner which is found to be erroneous we find the ends of justice would not be served by remanding the matter for After so stating this Court allowed the appeal and set aside the order of the High Court and restored the proposal made by the Joint Commissioner for grant of exemption certificate to the company and also the exemption certificate In pursuance of the aforesaid judgment the 1st respondent company availed the benefit of exemption. As the facts would unveil on 01.04.2006 Jharkhand Value Added Tax Act 2005 came into force. Prior to that through a notification SO no. 202 dated 30.03.2006 issued under Section 7(3) of the 1981 Act the State of Jharkhand had withdrawn notification nos. 478 and 479 dated 22.01.1995 and SO nos. 57 and 58 dated 02.03.2000 with immediate effect as a result of which the facility of exemption from payment of sales tax on the purchase of raw materials and also facility of exemption of sales tax on its finished products was withdrawn. On 30.03.2006 a notification bearing SO no. 202 under Section 8(5)(a) of the Central Sales Tax Act 1956 was issued withdrawing notification no. 481 dated 22.12.1995. At this juncture it is relevant to refer to Section 95(3 ii) of the JVAT Act which reads as under: “95. Transitional Provisions 3)(ii) Where a registered dealer was enjoying the facility of exemption for payment of tax extended to him under the provisions of adopted Bihar Finance Act 1981 for his having established new industrial unit in the State or undertaken expansion modernization or diversification in such industrial units immediately before the appointed day may be allowed to convert the facility of exemption from payment of tax under the Act into getting the facility of deferment of payment of tax for the un expired period or percentage of value of fixed asset as determined as might have been allowed to such dealer under that Act by a notification published in Official Gazette by the State Government.” Rule 64 of the Jharkhand Value Added Tax Rules 2006deals with deferment. The said Page 8 rule reads as under: and notifications such Industrial “64. Deferment.(a) All units which were availing the benefit of deferment of tax under the provisions of the Repealed Act there under immediately before the Appointed Day and who are continued to be so eligible on such Appointed Day under the Act may be allowed to continue the benefit of such deferment of payment of tax for the balance un expired period or un availed percentage of gross value of fixed assets provided such Industrial units file an application in Form JVAT 121 for grant of fresh eligibility Certificate for the balance un expired period or un availed percentage of gross value of fixed assets before the In charge of the Circle in which such unit is registered. b) All the procedure and provisions issued for availing deferment in the Repealed Act shall continue to be in operation and shall be deemed to have been adopted for the purpose of the Act The In charge of Circle on receipt of such application mentioned in sub ruleshall issue a revised eligibility certificate indicating therein the balance un expired period or un availed percentage of gross value of fixed Provided such Industrial Unit shall file an application mentioned in sub rule within a period of fifteen days from the date on which the Act comes into operation Provided further the In charge of the circle shall issue a revised eligibility certificate for the remaining un expired period within fifteen days from receipt of such application 2) All such industrial units which were availing the benefit of exemption from payment of tax on the sales of their finished products granted under clause of sub section of Section 7 of the Repealed Act and who have not availed of their full entitlement as on Appointed Day may be allowed to opt for deferment of payment of tax for the balance unexpired period or unveiled percentage of value of fixed assets as determined whichever is earlier in accordance with sub sectionof Section 95 of the Act Provided no dealer eligible for deferment under sub rule shall be allowed to defer his tax liability under the Act unless he applies to the concerned Registering Authority of the Circle in Form JVAT 121 and upon receipt of such application the concerned Registering Authority of the circle shall issue a certificate of eligibility in Form JVAT 408 Provided further such deferment as mentioned in sub ruleshall be allowed in accordance with the notification issued for this purpose by the State Government in accordance with the provisions of sub section of Section 95 of Provided also that if such notification is issued by the State Government the Industrial Unit opting to changeover to deferment the tax for the remaining unexpired period or unveiled percentage of value of fixed assets shall apply within fifteen days of publication of such notification before the In charge of the circle in which such unit is registered and thereafter the In charge of the Circle shall issue revised eligibility certificate for the balance unexpired period or unveiled percentage of value of fixed assets after making such enquiry as he may deem fit & proper.” In pursuance of the statutory provision and the rules Page 10 framed thereunder the 1st respondent on April 15 2006 submitted an application for registration under deferment of payment of tax. In the said application it has been stated “With the enactment of “The Jharkhand Value Added Tax Act 2005” effective from 01.04.2006 exemptions have been converted to the deferment of payment of tax. We expressed our strong protest for withdrawing the said exemption of Tata Steel and replaced by deferment of payment of Tax provision. We also pray you to review the provision of the said deferment of payment of tax and allow us to continue availing the existing Sales Tax exemption on purchase of raw materials and other goods for production of CR products as well as on selling the CR Products as per the Bihar Industrial Policy 1995 and the Notification made thereunder till 31st July 2008 In pursuance to the VAT Act and Rules we have to file the application by 15th April 2006 for converting the exemption to deferment and we are applying for the same under protest as per the enclosed prescribed format JVAT 121.” The said application seeking deferment of tax was rejected vide order dated 05.05.2006 10. Though the 1st respondent filed the said application it moved the High Court in W.P.(T) No. 2664 of 2006 challenging the constitutional validity of Section 95(3)(ii and Section 96(3) of the JVAT Act. It also challenged the withdrawal of the notification and asserted that the company was entitled to get the benefit of exemption that had already been granted and that there was no justification for withdrawal of the same. The Division Bench of the High Court took up the said petition along with others and came to hold thus: “55. After holding that the principle of promissory estoppels is enforceable in the present case the question arises what relief the petitioners were entitled to. As observed by us even if the impugned notifications had not been issued the exemption notifications were otherwise to die in view of Section 96(3) of the VAT Act and the petitioners were not entitled to the benefit of exemption thereafter. We have declined to strike down the provisions of VAT Act including Section 96(3) of the VAT Act. Therefore we are unable to uphold the exemption benefits to the petitioners on account of the provisions of Section 96(3) of the VAT Act. However the State cannot justify the issuance of the impugned notifications in view of our findings on various aspects upholding the enforceability of doctrine of promissory equitable estoppel when it is intended to even deny legitimate tax deferment benefit under Sec. 95(3) of the VAT Act. We therefore quash the impugned notifications S.Os 201 and 202 both dated 30th March 2006 as also order dated 5th May 2006 rejecting claim for deferment of tax under Section 95(3) of VAT Act and as a natural corollary the petitioners will be and are entitled to the benefit of deferment of tax in terms of Section 95(3) of the VAT Act. We thus allow these writ petitions and direct the respondent State to allow the benefit of deferment of tax to the petitioners for the remaining period under 1995 Industrial Policy read with the notifications S.Os. 478 479 and 481 all dated 22nd December 1995 and S.Os. 57 and 58 both dated 2nd March 2000 in accordance with the provisions of Section 95(3) of the VAT Act.” The aforesaid order is the subject matter of assail in this civil appeal by special leave. 11. We have heard Mr. Ajit Kumar Sinha learned senior counsel for the appellants and Mr. Dushyant A. Dave learned senior counsel for the 1st respondent. 12. At the very outset it is necessary to state that the 1st respondent had enjoyed the benefit of exemption from payment of sales tax on cold rolling mills products w.e.f 01.08.2000 to 31.03.2006. Initially the exemption was granted from 01.08.2000 to 31.07.2008. It is not in dispute that the 1st respondent had applied for conversion from exemption of tax to deferment of tax for the remaining period i.e. 01.04.2006 to 31.07.2008. The High Court as is manifest while quashing the notification nos. 201 and 202 had directed the State to grant deferment of tax to the 1st respondent under Section 95(3)of the JVAT Act. It is pertinent to mention here as exemption was claimed and not granted the 1st respondent had preferred an appeal by special leave but the same has already been disposed of. It has been fairly stated at the Bar that the issue that is seminal to the present lis is benefit of deferment and the period of repayment. 13. When the special leave petition was listed on 04.05.2007 the following interim order was passed: “Till the hearing and final disposal of the matter the assessee will open a separate account and the tax which is being deferred from today will be shown in that account which will be subject to the result of the petition.” It is the admitted position that the assessee had collected the tax from the consumers for the period 01.04.2006 to 31.07.2008 and stopped collecting tax after 31.07.2008. It is pertinent to note here that on 12.07.2013 in IA No. 13 the following order came to be passed: “After hearing learned counsel for the parties to the lis we are of the opinion that the respondent no.1 herein should be directed to pay a sum of Rs.25 crores each in six monthly instalments till the entire amount of Rs.186.70 crores is paid to the appellant applicant excluding the amount of Rs.20 crores already paid appellant applicant. The first instalment of Rs.25 crores shall be paid by 31.8.2013.” to 15. We have been appraised at the Bar that the said amount has been paid. We may repeat at the cost of repetition that the issue of exemption is not alive and it has been fairly accepted by Mr. Dave learned senior counsel for the 1st respondent. The singular issue that arises for consideration is the interpretation of the deferment policy in the context of provisions enumerated under the JVAT Act Section 95(3)envisages that a registered dealer who was enjoying the benefit of exemption of tax is allowed to convert the facility of exemption from payment of tax under the JVAT Act into the facility of deferment of payment of tax for the unexpired period. The assessee company has availed the deferment and paid the amount of tax. The gravamen of the grievance pertains to the period within which the amount was liable to be paid. Submission of Mr. Sinha learned senior counsel appearing for the State is that the deferment of tax has to be computed in such a manner so that the period of thirteen years as provided in the notification is calculated from the year 2000 ending with the year 2013. In essence his argument is as the assessee had failed to make the repayment of deferred tax within the prescribed period the assessee is obligated to pay the interest for the delayed period. 16. The aforesaid being the fulcrum of cavil we are obliged to refer to the relevant paragraphs of SO No. 480 dated 22.12.1995. They read as follows: “S.O. No. 480 dated 22 12 1995: In exercise of powers conferred by Section 23A of the Bihar Finance Act 1981(Bihar Act No. 81) Part I the Governor of Bihar on being satisfied that it is necessary to do so in the interest of industrial growth is pleased to permit those new units which started production between 01 09 1995 to 31 08 2000 and which have the registration certificate issued from the prescribed authority and been given eligibility certificate for this purpose are allowed to defer the payable sales tax on the sale of manufactured finished goods for a prescribed period under the following terms 5. Repayment of deferred tax amount by industrial units: Repayment of deferred tax amount by industrial 1) The repayment of deferred tax amount shall have to be done after the completion of eligibility period of deferment or the prescribed percentage limit of fixed capital investment whichever reaches earlier. Repayment of total deferred amount shall have to be done in ten equal six monthly instalments in such a manner so as to be completed within 13 years from the date of start of deferment 2) In case of non payment of the deferred amount after the expiry of the prescribed period as stated in parta simple interest at the rate of 2.5 percent per month on repayable amount shall be payable till the month in which payment is made. For the purpose of this part a part of month will be treated as full month 3) If any unit defaults in repayment of the deferred amount within the prescribed period then for the recovery of due amount alongwith interest as stated in part(2) above all the suitable provisions of the Bihar Finance Act 1981 Part I related to recovery of tax realization of dues and imposition of penalty alongwith prosecution under Section 49 shall be applicable without adversely affecting other actions taken under the Act.” 17. Relying on the language employed in the notification it is submitted by Mr. Sinha learned senior counsel for the appellant that deferment of tax as contemplated in the said notification has to commence from 31.08.2000 for the purpose of computation of 13 years. The words used in para 5(1) “from the date of start of deferment” are not to be interpreted to convey to be determinative on the foundation of individual case of deferment but they have to be understood that the grant of benefit of deferment is associated with the repayment of deferred tax and in that context it has to be so done that the period of repayment is completed within 13 years that is 31.08.2013 18. Refuting the said submission it is canvassed by Mr. Dave learned senior counsel appearing for the assessee that the date of start of deferment has to be the date when deferment commences and the span of 13 years has to be computed from that date. On that basis it is urged by him that the period of repayment will come to end only after expiry of 13 years from 2006 the year in which the deferment of the tax commenced as per the order of the High Court. Learned senior counsel has emphasised that when the language employed in the notification is absolutely plain and clear the meaning has to be attributed to the clear words for the words employed therein. For the said purpose he has placed reliance on the authority in Hansraj Gordhandas v. H.H. Dave Assistant Collector of Central Excise & Customs Surat and Two ors.3 32 SCR 252 19. We have already reproduced the relevant paragraphs of the notification. Regard being had to the language employed therein we have to appreciate what has been laid down in Hansraj Gordhandas 1 All ER 16 21 18 53 SCC 279 62 SCC 299 Ashalata7 approving 44 Halsbury’s Laws of Eng land 4th Edn. para 856 at page 552 Nokes v Doncaster Amalgamated Collieries Limited8. It must be emphasised that interpretation must be in consonance with the Directive Principles of State Policy in Article 39andof the Consti 59. It has to be reiterated that the object of inter pretation of a statute is to discover the intention of the Parliament as expressed in the Act. The dominant purpose in construing a statute is to ascertain the intention of the legislature as ex pressed in the statute considering it as a whole and in its context. That intention and therefore the meaning of the statute is primarily to be sought in the words used in the statute itself which must if they are plain and unambiguous be applied as they stand. …” The aforestated principle has been reiterated in Keshavji Ravji and Co. and others vs. Commissioner of In this regard reference to Mahadeo Prasad Bais Dead) vs. Income Tax Officer ‘A’ Ward Gorakhpur and another10 would be absolutely seemly. In the said case it has been held that an interpretation which will result in an anomaly or absurdity should be avoided and where literal construction creates an anomaly absurdity and 74 SCC 447 476 8 1940 AC 1014 1022 92 SCC 231 104 SCC 560 discrimination statute should be liberally construed even slightly straining the language so as to avoid the Emphasis has been laid on the principle that if an interpretation leads to absurdity it is the duty of the court to avoid the same. In Oxford University Press v. Commissioner of Income Tax11 Mohapatra J. has opined that interpretation should serve the intent and purpose of the statutory provision. In that context the learned Judge has referred to the authority in State of T.N. v. Kodaikanal Motor Union P) Ltd.12 wherein this Court after referring to K.P Varghese v. ITO13 and Luke v. IRC14 has observed: “The courts must always seek to find out the in tention of the legislature. Though the courts must find out the intention of the statute from the language used but language more often than not is an imperfect instrument of expression of human thought. As Lord Denning said it would be idle to expect every statutory provision to be drafted with divine prescience and perfect clarity As Judge Learned Hand said we must not make a fortress out of dictionary but remember that statutes must have some purpose or object whose imaginative discovery is judicial crafts manship. We need not always cling to literalness 113 SCC 359 123 SCC 91 134 SCC 173 1454 ITR 692 : 1963 AC 557has observed thus: “… It is well recognised rule of construction that a statutory provision must be so construed if possible that absurdity and mischief may be avoided. It was held that construction suggested on behalf of the Revenue would lead to a wholly unreasonable result which could never have been intended by the legislature. It was said that the literalness in the interpretation of Section 52(2 must be eschewed and the court should try to ar rive at an interpretation which avoids the absur dity and the mischief and makes the provision ra tional sensible unless of course the hands of the court are tied and it cannot find any escape from the tyranny of literal interpretation. It is said that it is now well settled rule of construc tion that where the plain literal interpretation of a statutory provision produces a manifestly absurd and unjust result which could never have been intended by the legislature the court may modify the language used by the legislature or even “do some violence” to it so as to achieve the obvious intention of the legislature and produce a rational construction. In such a case the court may read into the statutory provision a condition which though not expressed is implicit in construing the basic assumption underlying the statutory 27. Keeping in view the aforesaid principle the language employed in the notification has to be appreciated. Benefit of deferment of tax is granted under certain terms and conditions. One of the terms and conditions pertains to repayment of deferment of tax amount by the industrial unit. The first part of sub paraof para 5 stipulates that the repayment of deferred tax amount shall have to be done after the completion of eligibility period of deferment or the prescribed percentage limit of fixed capital investment whichever reaches earlier. In the case at hand the period of exemption has been converted to period of deferment of tax It is for 8 years. There is no dispute that the assessee had availed the exemption for a period of 6 years and he is entitled to deferment of tax for the rest of the period which commenced in 2006. It is the next part of the said sub para which requires to be understood. The notification lays a clear postulate that repayment of total deferred amount shall have to be done in ten equal six monthly instalments in such a manner so as to be completed within 13 years from the date of start of deferment. The words “from the date of start of deferment” have to have nexus with the policy stated in the beginning. The policy would apply if the unit has commenced between 01.09.1995 and 31.08.2000 that it has a registration certification from the prescribed authority and that most importantly it has been given an eligibility certificate for the said purpose. The policy would come into play only if these conditions are satisfied and then the assessee will be allowed to have the benefit of deferment of sales tax on the sale of manufactured finished goods for a prescribed period. Therefore the authority has been given the power to lay down the prescribed period for grant of deferment. In the beginning the 1st respondent was granted exemption. The concept of exemption is distinct from the concept of deferment of tax. After the JVAT Act came into force under the statutory provisions there was no exemption and beneficiaries were entitled to convert to the scheme of deferment. The period remains intact that is 8 years. The repayment has to be done in equal six monthly instalments and that period is 5 years The repayment commences after completion of eligibility period of deferment or the prescribed percentage limit of fixed capital investment whichever is earlier. The prescribed authority can grant an eligibility certificate but he has to keep in view the terms and conditions stipulated in the notification. The said authority cannot travel beyond the stipulations of the notification. The language employed in the notification conveys that the grant of certificate has to be such that after expiration of the eligibility period the amount has to be paid back within a span of 5 years but the gap cannot exceed 13 years from the date of start of deferment. The postulate enshrined therein has to be appositely appreciated. It does not flow from the notification that if a benefit is granted for 8 years or for a lesser period the assessee cannot claim that the repayment has to be completed within 13 years from the date of grant. In the case at hand the claim of the assessee that the repayment schedule has to continue for a period of 13 years from 2006 for the deferment commenced only in 2006. Such an interpretation not only causes serious violence to the language employed in the notification but if it is allowed to be understood in such a manner it shall lead to an absurd situation. That apart the intention can be gathered from the notification that it has to relate back to the date of eligibility with a maximum limit of 13 years. It cannot be construed to mean 13 years from the date of completion of the eligibility period. The repayment schedule is 5 years from the expiry of eligibility period of deferment. The period of 5 years has to be so arranged that it does not go beyond 13 years from the date of deferment. Language employed in para 5(1) has to be understood in this manner to give it an appropriate meaning. Otherwise the interpretation propounded on behalf of the assessee will lead to an anomalous situation because as regards fixation of schedule of repayment within 5 years from the date of completion of the eligibility period will become totally otiose and in a way irrelevant. Words “from the date of start of deferment” cannot be conferred a meaning in the manner suggested by the learned senior counsel for the assessee. It is a well known principle of statutory interpretation that if an interpretation leads to absurdity the same is to be avoided. And we have no hesitation here to say that if the notification is read as a whole the intention purpose and working of it is absolutely clear. The ingenious interpretation placed on the words are really beyond the context and therefore we are not disposed to accept the same. Thus analysed the irresistible conclusion is that the repayment schedule has to end on 31.08.2013 within a span of 5 years from the expiration of the eligibility period. 28. Having said that we may proceed to deal with the imposition of interest and penalty under the JVAT Act Rule 66 of the Rules provides for payment for breach of the Rules. We may immediately make it clear that the question of levy of penalty as envisaged under Rule 66 of the Rules should not be made applicable to the case at hand. We say so as the present case projects special features. It is submitted by Mr. Sinha learned senior counsel for the State that the revenue is entitled to 2.5% interest per month as per sub para 2 of paragraph 5 of the notification. It is argued on behalf of the assessee that it is not a case for levy of interest. Regard being had to the special features of the case and taking note of the fact that the assessee 1st respondent had already deposited the amount in pursuance of the order of this Court and regard being had to the nature of we direct that the 1st respondent assessee shall pay 12% interest per annum and the said amount shall be deposited with the competent Page 29 authority of the revenue within three months hence 29. Resultantly the appeal stands disposed of in above terms. There shall be no order as to costs New Delhi February 12 2016

Dharma Prathishthanam v. M/S. Madhok Construction Pvt. Ltd

“Arbitration agreement” means a written agreement to submit present or future differences to arbitration” In the year 1985, the appellant proposed to have a building constructed for which purpose it entered into a works contract with the respondent for the construction as per the drawings and specifications given by the appellant. Disputes arose between the parties. Clause 35 of the agreement which is the arbitration clause read as under:- “Settlement of disputes shall be through arbitration as per the Indian Arbitration Act.” Obviously and admittedly the reference was to the Arbitration Act, 1940. On 12th June, 1989 the respondent appointed one Shri Swami Dayal as the Sole Arbitrator. The respondent gave a notice to the appellant of such appointment having been made by the respondent but the appellant failed to respond. The respondent made a reference of dispute to the Arbitrator and the Arbitrator Shri Swami Dayal entered upon the reference. The record of the proceedings of the Arbitrator had neither been produced before the High court nor before this court. However, it is not disputed that the appellant did not participate in the proceedings before the Arbitrator.On 14th April, 1990 the Sole Arbitrator gave an award of Rs.14,42,130.78p. with interest at the rate of 12 per cent per annum from 14th April, 1990 till realization in favour of the respondent against the appellant. The respondent filed an application in the Court under Sections 14 and 17 of the Act for making the Award a Rule of the Court. The notice under Section 14(2) of the Act was published in the Statesman, a daily English newspaper in its edition dated 6th December, 1991.The appellant appeared in the Court on the appointed date i.e. 20th February, 1992. According to the appellant it gathered only on that date of copy of the Award dated 14th April, 1990. From 14th March, 1992 to 20th March, 1992 the Court was closed. On 21st March, 1992 the appellant filed objections to the Award.The objections were dismissed without any adjudication on merits and only on the ground that the objection petition was filed beyond a period of 30 days from 6th February, 1991 i.e. the date of publication of notice in the Statesman. Having lost before the learned Single Judge of the High Court of Delhi (Original Side) as also in intra-court appeal preferred before the Division Bench, the aggrieved appellant filed this appeal by special leave. ISSUE BEFORE THE COURT:Whether in the light of a general provision as in clause 35, the respondent could have unilaterally appointed an arbitrator without the consent of the appellant and could have made a reference to such arbitrator again without the reference of disputes having been consented to by the appellant. RATIO OF THE COURT According to this court, three types of situations may emerge between the parties and then before the Court. Firstly, an arbitration agreement, under examination from the point of view of its enforceability, may be one which expresses the parties ‘ intention to have their disputes settled by arbitration by using clear and unambiguous language then the parties and the Court have no other choice but to treat the contract as binding and enforce it.Or, there may be an agreement suffering from such vagueness or uncertainty as it not capable of being construed at all by culling out the intention of the parties with certainty, even by reference to the provisions of the Arbitration Act, then it shall have to be held that there was no agreement between the parties in the eye of law and the question of appointing an arbitrator or making a reference or disputes by reference to Sections 8, 9 and 20 shall not arise.Secondly, there may be an arbitrator or arbitrators named, or the authority may be named who shall appoint an arbitrator, then the parties have already been ad idem on the real identity of the arbitrator as appointed by them before hand; the consent is already spelled out and binds the parties and the Court. All that may remain to be done in the event of an occasion arising for the purpose, is to have the agreement filed in the Court and seek an order of reference to the arbitrator appointed by the parties.Thirdly, if the arbitrator is not named and the authority who would appoint the arbitrator is also not specified, the appointment and reference shall be to a sole arbitrator unless a different intention is expressly spelt out. The appointment and reference – both shall be by the consent of the parties. Where the parties do not agree, the Court steps in and assumes jurisdiction to make an appointment, also to make a reference, subject to the jurisdiction of the Court being invoked in that regard.This court added that mere inaction by a party called upon by the other one to act does not lead to an inference as to implied consent or acquiescence being drawn. The appellant not responding to respondent’s proposal for joining in the appointment of a sole arbitrator named by him could not be construed as consent and the only option open to the respondent was to have invoked the jurisdiction of Court for appointment of an arbitrator and an order of reference of disputes to him. It is the Court which only could have compelled the appellant to join in the proceedings.The court held that far from submitting to the jurisdiction of the Arbitrator and conceding to the appointment of and reference to the Arbitrator-Shri Swami Dayal, the appellant did raise an objection to the invalidity of the entire proceedings beginning from the appointment till the giving of the Award though the objection was belated.In the facts and circumstances of the case, this court considered that referring the matter again to the learned Single Judge of the High Court so as to record a finding if the award is a nullity would be a futile exercise resulting in needless waste of public time. On the admitted and undisputed facts, this court held that the impugned Award is a nullity and hence liable to be set aside and that is what we declare and also do hereby, obviating the need for remand. . DECISION HELD BY COURT: The appeal was allowed.The impugned Award given by the Arbitrator along with the unilateral appointment of the Arbitrator and reference made to him were all set aside as void ab initio and nullity.

Appeal71404 M s. Madhok Construction Pvt. Ltd DATE OF JUDGMENT: 02 11 2004 CJI R.C. LAHOTI G.P. MATHUR & P.P. NAOLEKAR JUDGMENT R.C. LAHOTI CJI Arising out of Special Leave PetitionNo. 78303 Leave granted The appellant Dharma Prathishthanam is a charitable institution. The respondent is a builder engaged in construction activity. In the year 1985 the appellant proposed to have a building constructed for which purpose it entered into a works contract with the respondent for the construction as per the drawings and specifications given by the appellant. We are not concerned with the correctness or otherwise of the allegations and counter allegations made by the parties which relate to the question who committed breach of the agreement. Suffice it for our purpose to say that disputes arose between the parties. Clause 35 of the agreement which is the arbitration clause reads as under: "Settlement of disputes shall be through arbitration as per the Indian Arbitration Act Obviously and admittedly the reference was to the Arbitration Act 1940 On 12th June 1989 the respondent appointed one Shri Swami Dayal as the Sole Arbitrator. It appears that the respondent gave a notice to the appellant of such appointment having been made by the respondent but the appellant failed to respond. The respondent made a reference of disputes to the Arbitrator and the Arbitrator Shri Swami Dayal entered upon the reference. The record of the proceedings of the Arbitrator have neither been produced before the High court nor are they available before us. However it is not disputed that the appellant did not participate in the proceedings before the Arbitrator. On 14th April 1990 the Sole Arbitrator gave an award of Rs. 14 42 130.78p. with interest at the rate of 12 per cent per annum from 14th April 1990 till realization in favour of the respondent against the appellant. The respondent filed an application in the Court under Sections 14 and 17 of the Act for making the Award a Rule of the Court. The notice under Section 14(2) of the Act was published in the Statesman a daily English newspaper in its edition dated 6th December 1991. the notice reads as under: Dharma Prathishthanam A 214 New Friends Colony New Delhi \026 65 Whereas Shri Swami Dayal the Arbitrator has filed the award dated 14.4.90 delivered by the said Arbitrator with Arbitration proceedings in Court in disputes inter se you respondent and petitioner for being made a rule of the Court. You are hereby called upon to file objections if any in accordance with law to the said award within 30 days of the Service of this notice And petitioner has filed an application I.A. No. 8446 90 under Section 17 of the Arbitration Act 1940 on 20.9.91 AND Whereas it has been shown to the satisfaction of the Court it is not possible to serve you in the ordinary way therefore this notice is given by advertisement directing you to make appearance in Court on 20.2.92 at 11 a.m Take notice that in default of your appearance on the day before mentioned the suit and I.A. will be heard and determined in your absence Dated this 18th day of November 1991 The appellant appeared in the Court on the appointed date i.e. 20th February 1992. According to the appellant it gathered only on that date a copy of the Award dated 14th April 1990. From 14th March 1992 to 20th March 1992 the Court was closed. On 21st March 1992 the appellant filed objections to the Award. The objections have been dismissed without any adjudication on merits and only on the ground that the objection petition was filed beyond a period of 30 days from 6th February 1991 i.e. the date of publication of notice in the Statesman. Having lost before the learned Single Judge of the High Court of Delhias also in intra court appeal preferred before the Division Bench the aggrieved appellant has filed this appeal by special leave Though the initial submission of the learned counsel for the appellant has been that in the facts and circumstances of the case the delay in filing the objection petition ought to have been condoned and the objection petition ought to have been held to have been filed within the period of limitation calculated from the date on which copy of the award was made available to the appellant without which the appellant could not have exercised its right to file objections and therefore subject to this Court feeling satisfied of the maintainability of the objection petition and its availability for consideration on merits this Court may remand the objection petition for hearing and decision by the learned Single Judge on merits. However we do not think that this exercise is at all called for as we are satisfied that the Award given by the arbitrator is a nullity and hence the proceedings must stand terminated fully and finally at this stage itself. We proceed to record our reasons for taking this view. An arbitrator or an Arbitral Tribunal under the Scheme of the 1940 Act is not statutory. It is a forum chosen by the consent of the parties as an alternate to resolution of disputes by the ordinary forum of law courts. The essence of arbitration without assistance or intervention of the Court is settlement of the dispute by a Tribunal of the own choosing of the parties. Further this was not a case where the arbitration clause authorized one of the parties to appoint an arbitrator without the consent of the other. Two things are therefore of essence in cases like the present one: firstly the choice of the Tribunal or the arbitrator and secondly the reference of the dispute to the arbitrator. Both should be based on consent given either at the time of choosing the Arbitrator and making reference or else at the time of entering into the contract between the parties in anticipation of an occasion for settlement of disputes arising in future. The Law of Arbitration does not make the arbitration an adjudication by a statutory body but it only aids in implementation of the arbitration contract between the parties which remains a private adjudication by a forum consensually chosen by the parties and made on a consensual reference Arbitration Act 1940 consolidates and amends the law relating to arbitration. According to Clauseof Section 2 of the Act "Arbitration agreement" means a written agreement to submit present or future differences to arbitration whether an arbitrator is named therein or not. Under Section 3 "arbitration agreement unless a different intention is expressed therein shall be deemed to include the provisions set out in the First Schedule insofar as they are applicable to the reference. The First Schedule consists of 8 paragraphs incorporating implied conditions of arbitration agreements. Para 1 of the First Schedule which only is relevant for our purpose provides 026 " Unless otherwise expressly provided the reference shall be to a sole arbitrator". The manner and method of choosing the sole arbitrator and making the reference to him is not provided. That is found to be dealt with in Sections 8 9 and 20 of the Act The relevant parts of the provisions relevant in the context of a general clause merely providing for arbitration as in the present case are extracted and reproduced herein : Section 8 Power of Court to appoint arbitrator or umpire \026In any of the following cases a) where an arbitration agreement provides that the reference shall be to one or more arbitrators to be appointed by consent of the parties and all the parties do not after differences have arisen concur in the appointment or appointments or b) XXX XXX XXX c) XXX XXX XXX any party may serve the other parties or the arbitrators as the case may be with a written notice to concur in the appointment or appointments or in supplying the vacancy 2] If the appointment is not made within fifteen clear days after the service of the said notice the Court may on the application of the party who gave the notice and after giving the other parties an opportunity of being heard appoint an arbitrator or arbitrators or umpire as the case may be who shall have like power to act in the reference and to make an award as if he or they had been appointed by consent of all parties Section 9 is irrelevant for our purpose as its applicability is attracted to a case where an arbitration agreement provides for a reference to two arbitrators one to be appointed by each party and procedure to be followed in such cases which is not a situation provided in by the agreement with which we are Sections 8 and 9 are placed in Chapter II of the Act Section 20 finds place in Chapter III. According to Section 20 \026 Application to file in Court arbitration agreement \026 1) Where any persons have entered into an arbitration agreement before the institution of any suit with respect to the subject matter of the agreement or any part of it and where a difference has arisen to which the agreement applies they or any of them instead of proceeding under Chapter II may apply to a Court having jurisdiction in the matter to which the agreement relates that the agreement be filed in court." After noticing all the parties and affording them an opportunity of being heard under sub sectionsand\026 4) where no sufficient cause is shown the Court shall order the agreement to be filed and shall make an order of reference to the arbitrator appointed by the parties whether in the agreement or otherwise or where the parties cannot agree upon an arbitrator to an arbitrator appointed by the Court 5) Thereafter the arbitration shall proceed in accordance with and shall be governed by the other provisions of this Act so far as they can be made In the background of the above said provisions the question which arises for consideration is whether in the light of a general provision as in clause 35 the respondent could have unilaterally appointed an arbitrator without the consent of the appellant and could have made a reference to such arbitrator again without the reference of disputes having been consented to by the appellant. On a plain reading of the several provisions referred to hereinabove we are clearly of the opinion that the procedure followed and the methodology adopted by the respondent is wholly unknown to law and the appointment of the sole arbitrator Shri Swami Dayal the reference of disputes to such arbitrator and the ex parte proceedings and award given by the arbitrator are all void ab initio and hence nullity liable to be ignored. In case of arbitration without the intervention of the Court the parties must rigorously stick to the agreement entered into between the two. If the arbitration clause names an arbitrator as the one already agreed upon the appointment of an arbitrator poses no difficulty. If the arbitration clause does not name an arbitrator but provides for the manner in which the arbitrator is to be chosen and appointed then the parties are bound to act accordingly. If the parties do not agree then arises the complication which has to be resolved by reference to the provisions of the Act. One party cannot usurp the jurisdiction of the Court and proceed to act unilaterally. A unilateral appointment and a unilateral reference \026 both will be illegal. It may make a difference if in respect of a unilateral appointment and reference the other party submits to the jurisdiction of the arbitrator and waives its rights which it has under the agreement then the arbitrator may proceed with the reference and the party submitting to his jurisdiction and participating in the proceedings before him may later on be precluded and estopped from raising any objection in that regard. According to Russell\026 An Arbitrator is neither more nor less than a private judge of a private courtwho gives a private judgmenthe is chosen and paid by the disputantshe does not sit in publiche acts in accordance with privately chosen procedure so far as that is not repugnant to public policyso far as the law allows he is set up to the exclusion of the State Courtshis authority and powers are only whatsoever he is given by the disputants’ agreementthe effectiveness of his powers derives wholly from the private law of contract and accordingly the nature and exercise of these powers must not be contrary to the proper law of the contract or the public policy of England bearing in mind that the paramount public policy is that freedom of contract is not lightly to be interfered A reference to a few decided cases would be apposite. In Thawardas Pherumal and Anr. Vs. Union of India 1955) 2 SCR 48 a question arose in the context that no specific question of law was referred to either by agreement or by compulsion for decision of the Arbitrator and yet the same was decided howsoever assuming it to be within his jurisdiction and essentially for him to decide the same incidentally. It was held that \026 A reference requires the assent of both sides. If one side is not prepared to submit a given matter to arbitration when there is an agreement between them that it should be referred then recourse must be had to the court under Section 20 of the Act and the recalcitrant party can then be compelled to submit the matter under sub sectioncompelling a reference the arbitrator is not vested with the necessary exclusive A Constitution Bench held in Waverly Jute Mills Co. Ltd. Vs. Raymond and Co.Pvt. Ltd.3 SCR 203 that An agreement for arbitration is the very foundation on which the jurisdiction of the arbitrators to act rests and where that is not in existence at the time when they enter on their duties the proceedings must be held to be wholly without jurisdiction. And this defect is not cured by the appearance of the parties in those proceedings even if that is without protest because it is well settled that consent cannot confer jurisdiction." Again a Three Judges Bench held in Union of India Vs. A.L. Rallia Ram3 SCR 164 that it is from the terms of the arbitration agreement that the arbitrator derives his authority to arbitrate and in absence thereof the proceedings of the arbitrator would be unauthorized In Union of India Vs. Prafulla Kumar Sanyal 3 SCC 631 this Court observed that an order of reference can be either to an arbitrator appointed by the parties whether in the agreement or otherwise or where the parties cannot agree upon an arbitrator to an arbitrator appointed by the Court. If no such arbitrator had been appointed and where the parties cannot agree upon an arbitrator the Court may proceed to appoint an arbitrator itself. Clearly one party cannot force his choice of arbitrator upon the other party to which the latter does not consent. The only solution in such a case is to seek an appointment from the Court In Banwari Lal Kotiya Vs. P.C. Aggarwal 1985SCC 255 the question of validity of a reference came up for the consideration of the Court in the context of the issue whether an arbitrator could enter upon a reference which was not consensual. The Court explained the law laid down by this Court in Thawardas Perumal’s casethat though the reference to arbitrator has to be accompanied by consent of the parties but such consent is not necessarily required to be expressed at the time of making the reference if it is already provided by the agreement or is sanctioned by statutory rules regulations or bye laws. The Court held that the expression arbitration agreement" is wider as it combines within itself two concepts \026a bare agreement between the parties that disputes arising between them should be decided or resolved through arbitration and an actual reference of a particular dispute or disputes for adjudication to a named arbitrator or arbitrators. When the arbitration agreement is of the former type namely a bare agreement a separate reference to arbitration with fresh assent of both the parties will be necessary and in the absence of such consensual reference resorting to Section 20 of the Arbitration Act will be essential The Constitution Bench in Khardah Company Ltd. Vs. Raymond & Co.Private Ltd. AIR 1962 SC 1810 decided the issue from the view point of jurisdictional competence and held that what confers jurisdiction on the arbitrators to hear and decide a dispute is an arbitration agreement and where there is no such agreement there is an initial want of jurisdiction which cannot be cured even by acquiescence. It is clearly spelled out from the law laid down by the Constitution Bench that the arbitrators shall derive their jurisdiction from the agreement and consent. Thus there is ample judicial opinion available for the proposition that the reference to a sole arbitrator as contemplated by para 1 of the First Schedule has to be a consensual reference and not an unilateral reference by one party alone to which the other party does not consent We are also inclined to make a reference to a few decisions by High Courts. In India Hosiery Works Vs. Bharat Woollen Mills Ltd. AIR 1953 Cal. 488 the Division Bench of the Calcutta High Court an arbitration agreement neither specifying the number of arbitrators nor specifying the mode of appointment is perfectly effective and valid and the incidents of such an agreement are that it is to take effect as an agreement for reference to a sole arbitrator to be appointed by consent of the parties or where the parties do not concur in making an appointment to be appointed by the Court except where the operation of Rule 1 of the First Schedule is XX XX XX XX XX XX Where therefore the agreement does not assign the right of appointment distributively to different parties in respect of different arbitrators it is inherent in the agreement that the appointment of the arbitrator or of each of the several arbitrators must be by the consent of all parties. There may be an express provision to such effect but even in the absence of any express provision such a provision must be taken to be necessarily implied. It is for that reason that where the agreement does not specify the number of arbitrators nor specifies the mode of appointment the Court first takes the agreement as providing for reference to a single arbitrator by reason of the provisions of Rule 1 of Schedule I then takes the mode of appointment intended necessarily to be appointed by consent of the parties and next if it finds that the parties cannot concur in the appointment of an arbitrator it appoints from itself The view was reiterated by another Division Bench of the same High Court in M s. Teamco Private Ltd. Vs. T.M.S. Mani AIR 1967 Cal. 168 M s National Small Industries Corpn. Ltd. Vs. M s. National Metal Craft Delhi and others AIR 1981 Del. 189 is very close to the case at hand. An arbitration clause longish one in substance provided that on question dispute or difference arising between the parties to the agreement "either of the parties may give to the other notice in writing of such question dispute or difference and the same shall be referred to arbitration". One of the parties served a notice on the other appointing one ’K’ as arbitrator to adjudicate upon the dispute. The notice ended by saying "you are hereby called upon to agree to the said reference in accordance with the arbitration agreement for the settlement of the said disputes." ’K’ then commenced the arbitration proceedings. Following the Division Bench decision of the Calcutta High Court the learned Single Judge of Delhi High Court held \026 If the agreement merely provides as here that the dispute shall be referred to arbitration the reference shall be made to a single arbitrator. If the agreement does not provide for the number of arbitrators and the mode of their appointment it will be assumed to be one for reference to a single arbitrator by reason of para I of the First Schedule and the mode of appointment taken necessarily to be consent of parties and if the parties do not concur in the appointment as is the case here the court will make the appointment". of Section 8 of the Act and then it is the Court which assumes jurisdiction to appoint an Arbitrator as held by High Court of Orissa in Niranjan Swain Vs. State of Orissa and Others AIR 1980 Ori. 142 The view of the law taken by the several High Courts as above appeals to us and we find ourselves in agreement In the event of the appointment of an arbitrator and reference of disputes to him being void ab initio as totally incompetent or invalid the award shall be void and liable to be set aside de hors the provisions of Section 30 of the Act in any appropriate proceedings when sought to be enforced or acted upon. This conclusion flows not only from the decided cases referred to hereinabove but also from several other cases which we proceed to notice In Chhabba Lal Vs. Kallu Lal and Others AIR 1946 P.C. 72 their Lordships have held that an award on a reference pre supposes a valid reference. If there is no valid reference the purported award is a nullity. On this point there is near unanimity of opinion as amongst the High Courts of the country as well. Illustratively we may refer to a few cases. In Union of India Vs. M s. Ajit Mehta and Associates Pune and Others AIR 1990 Bom. 45 para 34) the Division Bench held that the Court has suo motu power to set aside an award on ground other than those covered by Section 30 such as an award made by arbitrators who can never have been appointed under Section 8 as such an award would undoubtedly be ab initio void and nonest. In Union of India Vs. South Eastern Railway AIR 1992 M.P. 47 and Rajendra Dayal Vs. Govind 1970 MPLJ 322 both Division Bench decisions the High Court of Madhya Pradesh has held that in certain situations the Court may set aside an Award even without there being an application under Section 30 or even if the petition under Section 30 has not been filed within the period of limitation if the Court finds that the award is void or directs a party to do an act which is prohibited by law or is without jurisdiction or patently illegal. We need not multiply the number of authorities on this point as an exhaustive and illuminating conspectus of judicial opinion is found to be contained in Law of Arbitration and Conciliation Practice and Procedure by S.K. Chawlaunder the caption 026 "Whether the Court has suo motu power to set aside an Arbitral Award " and the answer given in the discussion thereunder is in the affirmative Though it has been held in The Union of India Vs. Shri Om Prakash4 SCC 32 that an objection on the ground of invalidity of a reference is not specifically covered by clauses a) andof Section 30 yet it is included in the residuary expression "or as otherwise invalid" and could have been set aside on such an application being made. However the above decision cannot be treated as an authority to hold that an award which is void ab initio and hence a nullity consequent upon an invalid appointment and an invalid reference in clear breach of the provisions contained in Sections 8 9 and 20 of the Act can still be held to be valid if not objected to through an objection preferred under Section 30 of the Act within the prescribed period of limitation. Three types of situations may emerge between the parties and then before the Court. Firstly an arbitration agreement under examination from the point of view of its enforceability may be one which expresses the parties’ intention to have their disputes settled by arbitration by using clear and unambiguous language then the parties and the Court have no other choice but to treat the contract as binding and enforce it. Or there may be an agreement suffering from such vagueness or uncertainty as is not capable of being construed at all by culling out the intention of the parties with certainty even by reference to the provisions of the Arbitration Act then it shall have to be held that there was no agreement between the parties in the eye of law and the question of appointing an arbitrator or making a reference or disputes by reference to Sections 8 9 and 20 shall not arise. Secondly there may be an arbitrator or arbitrators named or the authority may be named who shall appoint an arbitrator then the parties have already been ad idem on the real identity of the arbitrator as appointed by them before hand the consent is already spelled out and binds the parties and the Court. All that may remain to be done in the event of an occasion arising for the purpose is to have the agreement filed in the Court and seek an order of reference to the arbitrator appointed by the parties. Thirdly if the arbitrator is not named and the authority who would appoint the arbitrator is also not specified the appointment and reference shall be to a sole arbitrator unless a different intention is expressly spelt out. The appointment and reference \026 both shall be by the consent of the parties. Where the parties do not agree the Court steps in and assumes jurisdiction to make an appointment also to make a reference subject to the jurisdiction of the Court being invoked in that regard. We hasten to add that mere inaction by a party called upon by the other one to act does not lead to an inference as to implied consent or acquiescence being drawn. The appellant not responding to respondent’s proposal for joining in the appointment of a sole arbitrator named by him could not be construed as consent and the only option open to the respondent was to have invoked the jurisdiction of Court for appointment of an arbitrator and an order of reference of disputes to him. It is the Court which only could have compelled the appellant to join in the proceedings In the present case we find that far from submitting to the jurisdiction of the Arbitrator and conceding to the appointment of and reference to the Arbitrator Shri Swami Dayal the appellant did raise an objection to the invalidity of the entire proceedings beginning from the appointment till the giving of the Award though the objection was belated. In ordinary course we would have after setting aside the impugned judgments of the High Court remanded the matter back for hearing and decision afresh by the learned Single Judge of the High Court so as to record a finding if the award is a nullity and if so then set aside the same without regard to the fact that the objection petition under Section 30 of the Act filed by the appellant was beyond the period of limitation prescribed by Article 119(b) of the Limitation Act 1963. However in the facts and circumstances of the case we consider such a course to follow as a futile exercise resulting in needless waste of public time. On the admitted and undisputed facts we are satisfied as already indicated hereinabove that the impugned Award is a nullity and hence liable to be set aside and that is what we declare and also do hereby obviating the need for remand For the foregoing reasons the appeal is allowed. The impugned Award given by the Arbitrator alongwith the appointment of the Arbitrator and reference made to him are all set aside as void ab initio and nullity. The respondent shall be at liberty to seek enforcement of his claim if any by having recourse to such remedy as may be available to him under law and therein pray for condonation of delay by seeking exclusion of time lost in the present proceedings. No order as to the costs

Award passed by arbitral tribunal set aside by High Court cannot be contended to be partially set aside award : High Court Of Bombay

Harinarayan_G_Bajaj_vs_Securities_Appellate_Tribunal_on_31_October_2002 The question as to whether an arbitral award passed by the Arbitral Tribunal is set aside bydivision bench of Bombay high court can be challenged by the appellant,  was examined by THE HIGH COURT OF BOMBAY, consisting of Justice J.P Devadhar in the matter of  Mr. Harinarayan G. Bajaj v. The Bombay Stock Exchange Limited [Appeal No. 182 /2015]  on 28.10.15. Facts of the case were that respondent no. 2, a member of BSE initiated Arbitration Proceedings against the appellant claiming an amount of ` 1,58,39,459.57. In the said Arbitration Proceedings the appellant filed a counter claim amounting to ` 27,62,427.27.  The Arbitral Tribunal of the BSE  allowed the claim of the respondent no. 2 and rejected counter claim of the appellant on the ground that the said amount of ` 27,62,427.27 was adjusted against the purchase transactions of the appellant with the respondent no. 2’s broking entity, which transactions were found to be valid and subsisting by the Arbitral Tribunal.  Challenging the aforesaid Award, appellant filed Arbitration Petition under Section 34 of the Arbitration and Conciliation Act, 1996 before the Bombay High Court. Bombay High Court dismissed the Arbitration Petition filed by the appellant under Section 34 of the 1996 Act. Challenging the aforesaid order, appellant filed an appeal  in the Bombay High Court. The learned Counsel of the the appellant Mr. Sailesh Bajaj submitted that under Bye Law 260(2) of the Bye Laws framed by BSE it was obligatory on part of the Stock Exchange to entertain the application filed by the appellant especially when the Award made by the Arbitral Tribunal is set aside by the Bombay High Court. Since the Apex Court has not stayed operation of the Division Bench decision of the Bombay High Court, it is submitted on behalf of the appellant that the Arbitration Application ought to have been accepted subject to decision of the Apex Court in the SLP Filed by the respondent no. The learned counsel of the respondents contended that BSE  is seeking re-adjudication of the same arbitration reference which was subject matter of earlier arbitration reference. However, since the Bombay High Court while setting aside the Award passed by the Arbitral Tribunal has held that the dispute could be  referred back to arbitration only if the respondent no. 2 agrees to such reference and since respondent no. 2 has not accepted arbitration and filed SLP, BSE has deemed it fit to reject the application. The counsel also submitted that in the memorandum of appeal,  appellant had not taken a ground that the counter claim has been 6 wrongly rejected. Moreover, Division Bench decision of the Bombay High Court reveals that no argument was advanced relating to the rejection of the counter claim by the Arbitral Tribunal as well as the Learned Single Judge of the Bombay High Court.

Harinarayan G. Bajaj vs Securities Appellate Tribunal on 31 October 2002 Bombay High Court Harinarayan G. Bajaj vs Securities Appellate Tribunal on 31 October 2002 Equivalent citations: 2003 42 SCL 548 Bom Bench: A Shah S Bobde 1. Both the appeals are directed against the common order dated 5th September 2002 passed by the Securities Appellate Tribunal Mumbai. The appeals are filed under Section 15Z of the Securities and Exchange Board of India Act 1992 hereinafter referred to as the SEBI Act. When the appeals came up for admission we pointed out that the order under appeal is only an order made on procedural matters and right of the parties are not affected by those orders and consequently the appeals may not be maintainable. Elaborate arguments were advanced by the learned Counsel for the appellants and respondents on the maintainability of appeals. The contention of the learned Counsel for the appellant is that Section 15Z creates a wide and broad appellate jurisdiction and every kind of judicial order could be challenged in appeal. The learned Counsel for the respondents on the other hand contended that the order is merely a procedural order and it does not affect the rights of the parties and therefore appeal would not be under Section 15Z. The question before us is therefore whether these appeals are maintainable 2. The facts giving rise to these appeals arc that the appellants are investors in shares and securities and they trade through broken at Bombay Stock Exchangeand National Stock Exchange NSE). The appellants were served with two show cause notices by the respondents. These show cause notices are dated 11th July 2001 and 27th July 2001. Notice dated 11th July 2001 alleged that the appellants had indulged in buying and selling of abnormal volumes of ARBL scrips with a view to creating artificial market in the scrip and in the context asked to show cause as to why criminal prosecution in terms of Section 24(1) of the SEBI Act read with Regulation 4 of the Securities and Exchange Board of IndiaRegulations 1995 hereinafter referred to as 1995 Regulations should not be launched against them. The second notice dated 27th July 2001 alleged that the trading by the appellants in the scrips of ARBL resulted in creation of false market for ARBL shares and artificially raising the price of the said scrip and in the context asked them to show cause as to why directions restraining them from further dealing in the securities and other direction as deemed fit in the facts and circumstances of the case should not be passed against them under Regulation 11 read with Regulation 12(d) of the 1995 Regulations. The appellants responded to the show cause notice in their letters dated 19th July 2001 and 10th August 2001 respectively requesting the respondents to furnish details as sought by them in their letter dated 11th April 2001 and also to provide copies of answer the said show cause notices. The appellants did not get any response from the respondents. The appellants therefore filed writ Petition No. 27301 which came to be disposed of vide order dated 19th December 2001 inter alia recording the statement of the Counsel appearing for the SEBI that the SEBI will hear and dispose of the applications within a period of one week after hearing rejected the applications filed by the appellants vide two separate orders dated 2nd January 2002 and asked them to submit their replies to the show cause notices. The appellants claiming to be aggrieved by the said order 2nd January 2002 filed appeals before the Securities Appellate Tribunal praying that the impugned order dated 2nd January 2002 be quashed and set Indian Kanoon Harinarayan G. Bajaj vs Securities Appellate Tribunal on 31 October 2002 aside and respondents be directed to furnish the details as sought by the appellants. By the impugned order the Tribunal dismissed both the appeals holding that the appellants are not in any way debarred from raising any objection before the respondents in the proceedings if they feel that the material relevant to the charges has been held back from the and in case they are aggrieved by the outcome of the proceedings initiated by the respondents they arc entitled to appeal against such decision before the concerned forum 3. SEBI Act as can be seen from the Statement of Object and Reasons and the Preamble is enacted to provide for establishment of the Board to protract the interest of the investors in securities and to promote development of and to regulate the securities market and for matters connected therewith or incidental thereto. We find that the Act confers powers on the SEBI Board to carry investigations inquiry and to take action or issue direction as provided in the Act. Section 15T provides that any person aggrieved by the order made by the SEBI Board or Adjudicating Officer may prefer an appeal to the Securities Appellate Tribunal having jurisdiction in the matter. Section 15Z provides an appeal to the High Court against the decision or order of the Securities Appellate Tribunal. Section 15Z reads as follows Appeal to High Court Any person aggrieved by any decision or order of the Securities Appellate Tribunal may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Securities Appellate Tribunal to him on any question of fact or law arising out of such order Provided that the High Court may if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period allow it to be filed within a further period not exceeding sixty days 4. In our opinion in the context of the scheme of SEBI Act it is difficult to accept the submission of the appellants that each and every order made by the Appellate Tribunal is intended to be subjected to appeal under Section 15Z. Mere procedural orders are not the orders which can be taken up and challenged under Section 15Z of the Act. Unless the orders formally adjudicate and affect rights of the parties it is difficult to conceive that remedy of an appeal under Section 15Z would be available In term Section 15Z provides for an appeal from the decision of the Securities Appellate Tribunal on any question of fact or law" arising out of the order. This clearly implied that the order in appeal should have decided the fact or law or decided the mixed question of fact and law which affect the appellants rights adversely. The section in our opinion docs not contemplate an appeal against any decision or order which does not decide the fact or law affecting any right of the parties 5. In Central Bank of India Ltd. v. Gokal Chand the Supreme Court was concerned with Section 38 of the Delhi Rent Control Act which provided an appeal from every order of the Controller. The Supreme Court held that the phrase "every order" is not so wide as to include Interlocutory orders which are merely procedural and do not affect the rights or liabilities of the parties. It was observed Indian Kanoon Harinarayan G. Bajaj vs Securities Appellate Tribunal on 31 October 2002 3) The object of Section 38(1) is to give a right of appeal to a party aggrieved by some order which affects his right or liability. In the context of Section 38(1) the words every order of the Controller made under this Act though very wide do not include interlocutory orders which are merely procedural and do not affect the rights or liabilities of the parties. In a pending proceeding the Controller may pass many interlocutory orders under Sections 36 and 37 such as orders regarding the summoning of witnesses discovery production and inspection of documents issue of a commission for examination of witnesses inspection of premises fixing a date of hearing and the admissibility of a document or the relevancy of a question. All these interlocutory orders arc steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in the pending proceeding they regulate the procedure only and do not affect any right or liability of the parties. The Legislature could not have intended that the parties would be harassed with endless expenses and delay by appeals from such procedural orders. It is open to any part to set forth the error defect or irregularity if any in such an order as a ground of objection in his appeal from the final order in the main proceeding. Subject to the aforesaid limitation an appeal lies to the Rent Control Tribunal from every order passed by the Controller under the Act. Even an interlocutory order passed under Section 37(2) is an order passed under the Act and is subject to appeal under Section 38(1) provided it affects some right or liability of any party. Thus an order of the Rent Controller refusing to set aside an ex parte order is subject to appeal to the Rent Control Tribunal 6. The Supreme Court referred to its earlier decision in Shankarlal Aggarwala v. Shankarlal Poddar where the Court decided that the words "from any order or decision made or given in the matter of winding up of the company by Court" in Section 202 of the Indian Companies Act 1913 though wide would exclude merely procedural orders or those which did not affect the rights or liabilities of 7. In Bant Singh Gill v. Shanti Devi again the relevant provision of the Delhi Rent Control Act came up for consideration. The Trial Court had held in the said case that the suit has not abated. The Supreme Court held that it was an interlocutory order and cannot be considered as an appealable order immediately. Whether the suit stood abated could be considered in an appeal from the ultimate order in case the party becomes aggrieved by the ultimate order 8. The observations of the Supreme Court in Central Bank of India Ltd. s casewould equally govern the relevant words used in Section 15Z of the SEBI Act. The rights and liabilities of the parties normally would be decided by the final order. Very rarely the interlocutory order on procedural matters would affect the rights of the parties. The course of a litigation should normally proceed unhampered. If at every stage the appellate court has to entertain an appeal there cannot be a speedy culmination of the litigation at all. It is with a view to expedite the trial and conclusion of a litigation before the original authority or court the Supreme Court has limited the scope of the appellate jurisdiction in the manner stated in CentralBank of India Ltd. s case (supra). Therefore we have no hesitation to hold that purely procedural orders which do not affect the substantive right of the parties are not appealable under Section 15Z of the SEBI Act. This interpretation would also apply with equal force Lo Section 15 I which provides an appeal to the Securities Appellate Tribunal against the order passed by the SEBI Board or adjudicating officer. Therefore the interlocutory Indian Kanoon orders not affecting the rights of the parties would not be appealable under Section 15T Harinarayan G. Bajaj vs Securities Appellate Tribunal on 31 October 2002 9. It was contended before us by the learned Counsel for the appellants that SEBI Board was not right in rejecting the request of the appellants to give inspection of the relevant documents. He in support of his contention cited various judgments. We do not propose to go into these questions because these questions can be appropriately considered by the Appellate Tribunal in appeal filed against the final order that may be passed by the SEBI Board. In case any adverse order is passed by the SEBI Board against the appellants the appellants will be entitled to agitate all issues in an appeal that may be filed against such order 10. For the reasons stated above we hold that the appeals are not maintainable and we dismiss the same with no order as to costs 11. Appellants are granted four weeks time to file the reply. If reply is not filed within the said period. SEBI Board is at liberty to proceed ex parte Indian Kanoon

Adjudicatory authorities under the I.D. Act not bound by technical procedures unlike Civil Courts: Delhi High Court

Adjudicatory authorities like Labour Courts instituted under the Industrial Disputes Act, 1948 are not bound by the technical rules of procedure unlike their civil correspondences. The writ petition in Rakesh v M/S J.M.J. Signage W.P.(C) 7600/2019 before the Delhi High Court bench of Rajiv Shakdher J. was directed against the award dated 12.02.2018 passed by the concerned labour court in LIR No. 3538/17. The principal grievance of the petitioner was, that the labour court ruled on the reference made to it, although, he had made a plea for withdrawing the reference. The petitioner claims that he was employed by the respondent in 2010 and worked as a field worker at monthly wages of Rs. 12,000/-. It is also averred that the petitioner worked for nearly 12 hours a day. It is averred by the petitioner that his services were terminated without prior notice or payment of due salary. According to the petitioner, arrears of salary for the period spanning between 01.01.2014 and 01.12.2016 were not paid to him when his services were terminated, albeit, without inquiry. It was thus construed that there was a violation of the provisions of Section 25-F of the Industrial Disputes Act, 1947. In 2018, on account of the wrong name registered, he tried to have the reference given by the Government to be withdrawn. The labour court however, rejected the application for withdrawal of reference on the ground that the dispute had been referred to it by the Government of NCT of Delhi, and therefore, it was only that authority, which could withdraw the reference. Since the petitioner had failed in withdrawing the reference in the first instance, his plea was rejected by the labour court, via the impugned award and when it was made by the petitioner for the second time, by incorporating the same plea in his affidavit of evidence. The question before the court was whether the impugned award deal with the merits of the industrial dispute? The I.D. Act, is a piece of welfare legislation whereby the labour courts and industrial tribunals have been given vast powers. Section 11A of the I.D. Act permits the labour court, Tribunal or National Tribunal, as the case may be, if it is satisfied that the order of discharge or dismissal is not justified, to set aside such order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, as it thinks fit or give such other relief to the workman including awarding lesser punishment in lieu of discharge or dismissal. The court observed that the labour court could have either stood over the matter or permitted the petitioner to withdraw the case with liberty to take recourse to an appropriate remedy under the I.D. Act. The appropriate authority would not have, possibly, entertained a plea for making a fresh reference unless the case pending before the labour court was withdrawn. The court held that “Not only upon a plain reading of this provision but other ancillary provisions of the I.D. Act, is, that the adjudicatory authorities acting under the said Act are not bound by the technical rules of procedure, as provided in the CPC which apply to a civil action. The labour court’s obduracy in not permitting the petitioner to withdraw the reference was both iniquitous and illogical as also unsustainable in law. This is for the reason that the labour court has dealt with a reference which adverts to “Rakesh” whereas the petitioner is Rakesh Ghosh.”

J 1 IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 7600 2019 & CM No.31605 2019 Judgement reserved on 18.02.2021 Judgement pronounced on 30.04.2021 Through : Mr. Ashish Virmani Adv. .....Petitioner M S J.M.J. SIGNAGE .....Respondent Through : Ms. Dolly Nair Adv. HON BLE MR. JUSTICE RAJIV SHAKDHER Judgement pronounced via videoconferencing on account of COVID 19] RAJIV SHAKDHER J. Table of Contents Preface: ..........................................................................................................2 Background facts: ..........................................................................................2 Submissions on behalf of the parties: ...........................................................8 Reasons and Analysis: ................................................................................ 10 Conclusion: ................................................................................................. 15 W.P.7600 2019 Preface: This writ petition is directed against the award dated 12.02.2018 passed by the concerned labour court in LIR No. 3538 17. The principal grievance of the petitioner is that the labour court has ruled on the reference made to it although he had made a plea for withdrawing the reference. The record shows that the petitioner advanced the plea for withdrawing the reference on two grounds. 2.1 First that his name had been wrongly recorded as “Rakesh” in the reference whereas his name is “Rakesh Ghosh” on the aadhar card. 2.2 Secondly the name of his employer i.e. the respondent herein had been recorded in the order of reference as “J.M.J. Signage” whereas the correct name was “JMJ Signage7600 2019 08.01.2017 which ultimately led to his termination from service. It is averred by the petitioner that his services were terminated without prior notice or payment of due salary. According to the petitioner arrears of salary for the period spanning between 01.01.2014 and 01.12.2016 were not paid to him when his services were terminated albeit without inquiry. It is thus averred that there was a violation of the provisions of Section 25 F of the Industrial Disputes Act 1947P.S. Karol Bagh. 4.1 Although the petitioner has also averred that he dispatched a letter on 08.02.2017 to the respondent via speed post demanding payment of outstanding salary and reinstatement of his services a copy of this letter has not been placed before the court. Be that as it may it appears that the conciliation proceedings were carried out before the conciliation officer which having failed propelled the Deputy Labour Commissioner to pass an order on 20.12.2017 referring the dispute for adjudication to the concerned labour court. The terms of the reference as framed in the order dated 20.12.2017 are set forth hereafter: “Whether services of Sh. Rakesh S o Sh. Naru Gopal Age 25 years have been terminated illegally and or unjustifiably by the management if so to what relief is he entitled and what directions are necessary in this respect ” W.P.7600 2019 6. Resultantly on 22.12.2017 notice was issued by the labour court to both the parties which was made returnable on 12.01.2018. On 12.01.2018 both the parties were represented before the labour court. The petitioner in particular was represented by one Mr. Pyare Lal. 6.1. On that date Mr. Pyare Lal filed on behalf of the petitioner the statement of claim along with the documents apart from a letter of authority issued by the petitioner. 6.2 The labour court having taken on record the filings made on behalf of the petitioner granted time to the respondent‟s representative to file a written statement in the matter along with a letter of authority issued in his favour. The matter was thus posted for further proceedings on 23.01.2018. 6.3 On 23.01.2018 the petitioner moved an application for withdrawing the reference in view of the fact that not only was his name wrongly set out in the order of reference dated 20.12.2017 but also the name of the respondent had wrongly been noted in the said order. In support of his plea that his name was “Rakesh Ghosh” and not “Rakesh” the petitioner had placed reliance on the Aadhar card filed with the application. 7. The labour court though rejected the application for withdrawal of reference preferred by the petitioner on the ground that the dispute had been referred to it by the Government of NCT of Delhiand therefore it was only that authority who could withdraw the reference. The labour court thus went on to conclude that the petitioner was incompetent to withdraw the reference. However even while directing dismissal of the petitioner‟s application the labour court observed that the petitioner could move an appropriate application with the labour department W.P.7600 2019 for carrying out the necessary corrections in the order of reference. Importantly the order dated 23.01.2018 respondent‟s representative had sought further time to file a written statement in the matter. 7.2 The lis was thus at that point at a nascent stage. It may also be relevant to note that during the course of the arguments the petitioner‟s representative had accepted the fact that the respondent‟s name had changed to “J.M.J. Signage” and was no longer “JMJ SignageRelief. 8.1 By the very same orderthe matter was posted by the labour court on 12.02.2018 for filing of the petitioner‟s evidence. 8.2 The petitioner filed a brief affidavit whereby he reiterated that he wanted to withdraw the reference with liberty to move afresh for the said purpose. There was nothing else stated by the petitioner in his affidavit of On 12.02.2018 the labour court took several significant steps one after the other. Firstly the labour court took on record the affidavit of evidence filed by the petitioner after it was formally tendered by him. Secondly it closed the evidence of parties. And lastly W.P.7600 2019 after hearing final arguments in the matter he proceeded to pass a final order in the matter. 9.1 The documents which were relied upon by the petitioner were also noticed by the court in its order dated 12.02.2018 which comprised the application filed before the court i.e. Ex.WW1 1 a copy of the complaint dated 09.01.2017 i.e. Mark W1 and copies of complaint with some documents i.e. Mark W27600 2019 matter it appears took place on 22.01.2020. On that date the learned judge recorded her unhappiness with the stand taken by the learned counsel for the respondent which was that she wished to withdraw the statement made by her on 20.11.2019 as it was made without instructions. 11.1 Notwithstanding her disapproval with the approach adopted in the matter the learned judge permitted the learned counsel for the respondent to recant and thereafter proceeded to issue notice in the petition with liberty to the respondent to file its counter affidavit. 12. The respondent since then has filed its counter affidavit in which it has taken the following pleas. That the petitioner was a daily wager who was engaged by the respondent whenever the work was available. ii) The petitioner‟s claim that he had not been paid his wages since iii) Because the petitioner was a daily wager he was paid wages as and when the work was available there were no arrears towards wages payable January 2014 was false. by the respondent. iv) Since the petitioner was not working on a regular basis with the respondent there cannot arise any question of removing him from service. v) The petitioner s application for withdrawing the reference was dismissed on 23.01.2018 and despite an opportunity being given to have the reference corrected he chose not to approach the labour department at vi) The petitioner did not challenge the order dated 23.01.2018 which his peril. entailed consequences. vii) The assertions made on behalf of the petitioner are contradictory in W.P.7600 2019 the sense that on the one hand he avers that the jurisdiction of the labour court is confined to the reference made to it and on the other hand he asserts that the labour court ought to have exercised its jurisdiction albeit beyond the terms of the reference. viii) The labour court had correctly rejected the reference as the petitioner had failed to prove that his termination was brought about illegally and or unjustifiably. evidence filed by the petitioner. ix) The labour court reached its conclusion based on the affidavit of The petitioner had neither worked with the respondent since 2010 as a field worker for a monthly wage of Rs. 12 000 nor the petitioner worked for the respondent for nearly 12 hours each day. Submissions on behalf of the parties: 13. With this state of the pleadings and the material on record arguments were advanced on behalf of the petitioner by Mr. Ashish Virmani while submissions on behalf of the respondent were made by Ms. Dolly Nair. 14. Mr. Virmani submitted that the labour court acted rather technically in dismissing the petitioner‟s application for withdrawing the reference made in the first instance. 14.1 According to him instead of dismissing the application the labour court could have read the reference as one made in the name of “Rakesh Ghosh” as against “Rakesh” having regard to the complaint dated 09.01.2017 made to the Deputy Labour Commissioner based on which the reference order dated 20.12.2017 was issued by the GNCTD. 14.2 In any event since the reference had not been decided on merits as W.P.7600 2019 the petitioner only reiterated his stand in his affidavit of evidence dated 12.02.2018 that he wished to withdraw the reference there can be no bar in a fresh request being made by the petitioner to the GNCTD for referring the dispute once again to the concerned labour court. 14.3 The observations made in paragraph 10 of the impugned award dated 12.02.2018 are thus erroneous to that extent. 14.4 The plea for withdrawing the reference ought to have been allowed and that if allowed cannot bar a fresh proceeding under the I.D. Act. 14.5 The principles and or the technical rules of the Code of Civil Procedure 1908cannot come in the way of the petitioner. Thus effectively the labour court via the impugned award has barred the initiation of fresh proceedings by the petitioner under the I.D. Act by holding that. since the matter has been decided on merits a fresh case cannot be filed by the petitioner on the same cause of action. 14.6 The labour court has thus in effect invoked the principles of Section 11 of the CPC which do not apply to a dispute under the I.D. Act. 14.7 Mr. Virmani in support of his plea has relied upon the following Ashoka Marketing Ltd. v. Shri B.D. Gupta & Anr. 1975 Lab I. 1715: 1975 SCC OnLine Del 41. ii) Dimple Ltd. v. Harish Kumar Aggarwal 1998 DRJ 558 : 1997 SCC OnLine Del 950. iii) Guest Keen Williams Pr. Ltd. Calcutta v. P.J. Sterling & Ors. AIR 1959 SC 1279. iv) Radio Manufacturers of India v. State of West Bengal & Ors. 2004 2) L.L.N. 274 : 2003 SCC OnLine Cal 452. W.P.7600 2019 15. Ms. Nair on the other hand has broadly argued in line with the reasoning contained in the impugned award. Ms. Nair submitted that since the petitioner had not taken advantage of the order dated 23.01.2018 passed by the concerned labour court permitting him to approach the labour department for having the reference corrected the labour court could not have come to any other conclusion but only one which it finally reached via the impugned award since the affidavit of evidence filed by the petitioner stated nothing which would prove the case set up by the petitioner that his services were illegally and or unjustifiably terminated. 16. Ms. Nair also submitted that since the petitioner had failed in withdrawing the reference in the first instance his plea was rightly rejected by the labour court via the impugned award 718 :1 SCC 524. ii) Yogesh Daulat Rai Mehta v. Union of India & Ors 2008 Law Suit Del) 1254 passed in W.P. 139 2008 by the High Court of iii) Ashok Kumar Chhabra v. Union of India 1998DLT 291 : 1998 SCC OnLine Del 158. Reasons and Analysis: 18. Having heard the counsel for the parties and perused the record the undisputed position which has emerged and its ramifications are set forth W.P.7600 2019 hereafter: 18.1 The petitioner had filed a complaint with the labour department qua the respondent which alluded to the fact that his dues for various periods had not been paid. This complaint was made by the petitioner by adverting to his complete name i.e. Rakesh Ghosh. 18.2 The conciliation proceedings having failed the Deputy Labour Commissioner GNCTD vide order dated 20.12.2017 made a reference that alluded to the petitioner s first name i.e. Rakesh. 18.3 In this order the respondent was described as “M s J.M.J. Signage". The reference was taken up by the labour court in the first instance on 22.12.2017 when notice was issued to both the parties which was made returnable on 12.01.2018. On that date the representatives of both the sides were present. The petitioner‟s representative filed the statement of claim along with the documents as also his letter of authority. The labour court posted the matter on 23.01.2018 for enabling the respondent‟s representative to file the written statement and letter of authority. 18.4 On 23.01.2018 the petitioner moved an application whereby he sought to withdraw the reference. The reasons given were that not only his name was incorrectly recorded but also the name of the respondent was not correctly shown in the order of reference. The labour court on that very date i.e. 23.01.2018 considered the application and thereafter proceeded to dismiss the same. The reason given by the labour court for dismissal of the application was that only the appropriate authority was competent to withdraw the reference. Liberty was however given to the petitioner to approach the labour department for having the reference W.P.7600 2019 18.5 Concededly the petitioner did not approach the labour department and instead ended up filing an affidavit of evidence wherein a similar plea was taken. This affidavit was filed on 12.02.2018. The petitioner was cross examined on the same date where he simply stated that he wished to withdraw the reference. The labour court though proceeded to hear the final arguments in the matter since the respondent chose not to cite any witnesses. 18.6 Therefore the question which arises for consideration is: does the impugned award deal with the merits of the industrial dispute The fact that it does not is reflected in paragraph 9 of the impugned award which reads as In his affidavit in evidence Ex.WWl A the claimant did not depose about cause of action. Rather he deposed that he was withdrawing the case due to his and management s wrong name in reference order. Such kind of plea has already been decided by this court vide order dated 23.01.2018. He did not mince a single word about termination of his service. Due to that reason he has failed to prove that his service was terminated illegally. Hence this issue is decided in favour of management and against claimant.” 19. The labour court having observed that the petitioner s affidavit of evidence and his deposition merely reiterated that he wished to withdraw the reference could not have then gone on to say in paragraph 101 of the impugned award that he should not be permitted to file a fresh case on the same cause of action as the matter had been decided on merits. 1 “Issue No.2: 10. As the matter has been decided on merit the claimant cannot be permitted to file fresh case on the same cause of action. Hence statement of claim is dismissed. He is not entitled to any relief. Parties to bear their own costs. Award is passed accordingly. W.P.7600 2019 19.1 What has emerged from the record is that the petitioner consistently expressed his desire to withdraw the reference. The fact that the petitioner s earlier application was dismissed on 23.01.2018 when it could have been dealt with more creatively by the labour court by holding that “Rakesh” and “Rakesh Ghosh” were the same persons and thus had assuaged the apprehensions of the petitioner it decided to reject the application. Notwithstanding the fact that the petitioner‟s application was rejected to my mind the labour court could not have via the impugned award foreclosed the remedy available to the petitioner to seek a fresh reference or correction of the reference as that was ultimately the import of the order dated 23.01.2018. 19.2 Although the labour court was right in noting in the proceedings of 23.01.2018 that the petitioner had not moved the appropriate authority for carrying out the corrections in the reference the gap between that date and the date when the matter came up and was finally decided was not much. 19.3 The labour court could have either stood over the matter or permitted the petitioner to withdraw the case with liberty to take recourse to an appropriate remedy under the I.D. Act. The appropriate authority would not have possibly entertained a plea for making a fresh reference unless the case pending before the labour court was withdrawn. 19.4 What made the matters worse is the observation of the labour court that since the matter had been decided on merits therefore a fresh action would not lie on the same cause. 19.5 The I.D. Act is a piece of welfare legislation whereby the labour courts and industrial tribunals have been given vast powers. Section 11A of Reference is answered accordingly.” W.P.7600 2019 the I.D. Act permits the labour court Tribunal or National Tribunal as the case may be if it is satisfied that the order of discharge or dismissal is not justified to set aside such order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions as it thinks fit or give such other relief to the workman including awarding lesser punishment in lieu of discharge or dismissal. 19.6 The concerned forum thus can as noticed above bring about industrial peace and end the disputes by fixing when necessary terms and conditions of reinstatement or by meting out lesser punishment. 19.7 Therefore what is evident not only upon a plain reading of this provision but other ancillary provisions of the I.D. Act is that the adjudicatory authorities acting under the said Act are not bound by the technical rules of procedure as provided in the CPC which apply to a civil action. The labour court s obduracy in not permitting the petitioner to withdraw the referencewas to my mind both iniquitous and illogical as also unsustainable in law. This is for the reason that the labour court has dealt with a reference which adverts to “Rakesh” whereas the petitioner is “Rakesh Ghosh”. 19.8 The judgements cited by Ms. Nair do not deal with the issue at hand and therefore are distinguishable on facts. i. The judgement in Ratnagiri Gas case inter alia dealt with the issue as to whether the appellant before the Court had adopted a correct approach in law in challenging by way of a fresh writ petition not only the terms and conditions contained in the amended tender but also those aspects which were embedded in the unamended tender and W.P.7600 2019 formed part of an earlier writ action. The Supreme Court held that this was not permissible as the earlier writ petition had been dismissed as withdrawn. Clearly no such situation arises in the instant case. The labour court in the instant case was required to apply its mind as to whether or not it should go ahead with the matter which was predicated on a reference made to it by GNCTD that did not relate to the petitioner. ii. The judgement rendered in Ashok Kumar Chhabra case also to my mind has no relevance given the facts and circumstances obtaining in the present writ petition. In Ashok Kumar Chhabra case a miscellaneous application was moved in a disposed of writ petition the Court held that this was not permissible. iii. The judgement rendered in Yogesh Daulat Rai Mehta case is also distinguishable on facts. This was a case where the petitioner before the Court had challenged the detention order passed qua him under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974. The writ petition was dismissed as withdrawn as the petitioner had been released. Thereafter the very same detention order was assailed by the petitioner concerning action taken against him under the Smugglers and Foreign Exchange Manipulators Act 1976. The Court ruled that the second writ petition challenging the same detention order was not maintainable. Conclusion: 20. Therefore for the foregoing reasons I am inclined to set aside the impugned award dated 12.02.2018. It is ordered accordingly. W.P.7600 2019 21. The petitioner would thus be free to take recourse to the remedy available under the I.D. Act to agitate his grievances as there was in substance no decision taken by the labour court on merits via the impugned 22. Resultantly the pending interlocutory application shall stand closed. APRIL 30 2021 aj RAJIV SHAKDHER J W.P.7600 2019

One single circumstance can’t be treated as of universal validity to either grant or refuse bail: Odisha High Court

“Once the charge-sheet has been filed unless antecedents to the contrary can be demonstrated, the presence of the accused may not be required to take the prosecution to its logical conclusion.”, this remarkable stand was forwarded by Hon’ble Odisha High Court, in a single judge bench chaired by Hon’ble Justice Mr. S.K. Panigrahi, where a common judgment was advanced in the Bail Application case of Pramod Kumar Sahoo V. State of Odisha, [BLAPL No.4125 OF 2020]. The present petition arises out of a written arrest memo bearing No. 104/CT & GST issued by the Enforcement Unit Bhubaneswar dated 13.03.2020 U/s. 132(I)(b)(c)(i) of OGST Act 2017 where under the Petitioner has been arrested on 12.03.2020 and has since been in custody. The allegation against the petitioner is that during the period between July 2017 & December 2019, the said firm has availed/utilized bogus input tax credit (ITC) of Rs. 2.48 crores on the strength of fake purchase invoices issued in the name of 21 fictitious entities. It has also been alleged that the Petitioner in collusion with others has been found to have created and operated 6 fictitious firms to avail/utilize bogus Input Tax Credit (ITC) of Rs.34.23 crores in their names on the strength of fake purchase invoices without physical receipt of goods and has passed on the same to recipients both within and outside the state. The petitioner has been in custody since the month of 12.3.2020 and in the meantime charge sheet has been filed on 07.05.2020 u/s 132(1)(b)(c)(i) of OGST Act 2017. The fact that an earlier bail application has been rejected by the learned Addl. Sessions Judge–cum–Special Judge CBI, Court No.1, BBSR vide its order dated 25.03.2020 has been brought on record. After examining all the submissions, arguments and evidences forwarded by the councils, the Hon’ble HC observed that, “it is directed that the petitioner be released on bail on furnishing a bail bond of Rs.5,00,000/- (Rupees five lakhs) with one surety for the like amount to the satisfaction of the learned trial court with the following conditions: (i) The petitioner shall co-operate with the trial and shall not seek unnecessary adjournments on frivolous grounds to protract the trial; (ii) The petitioner shall not directly or indirectly allure or make any inducement, threat or promise to the prosecution witnesses so as to dissuade him from disclosing truth before the Court; (iii) The involvement of the petitioner in any other similar nature of offence under the GST Act would entail cancellation of bail; (iv) In case of his involvement in any other criminal activities or breach of any other aforesaid conditions, the bail granted in this case may also be cancelled. (v) The petitioner shall submit his passports, if any, before the learned trial court and shall not leave India without prior permission of this Court.”

HIGH COURT OF ORISSA: CUTTACK BLAPL No.4125 OF 2020 In the matter of an application under Section 439 Criminal Procedure Code 1973) Pramod Kumar Sahoo State of Odisha For petitioner For the Opp. Party: … Opposite Party Shri Ravi Shankar Samal S. Mishra S.N. Kanungo S.P.Jena & R. Mohanty Shri Sunil Kumar Mishra Additional Standing Counsel THE HONOURABLE SHRI JUSTICE S.K. PANIGRAHI Date of Hearing: 16.10.2020 Date of judgment: 23.12.2020 1. The present petition arises out of a written arrest memo bearing No. 104 CT & GST issued by the Enforcement Unit Bhubaneswar dated 13.03.2020 U s. 132(I)(b)(c)(i) of OGST Act 2017 whereunder the Petitioner has been arrested on 12.03.2020 and has since been in custody. 2. The brief facts of the case as alleged by the informant the CT & GST Enforcement unit Bhubaneswar by the Deputy Commissioner of Sales Tax CT& GST Enforcement Unit BBSR is that the petitioner is the proprietor of M s. Sahoo Traders having GSTIN 21BSWP549B7B1ZH. The said firm is carrying out business at Plot No. 309 1825 Sailashree Vihar Bhubaneswar. The allegation is that during the period between July 2017 to December 2019 the said firm has availed utilized bogus input tax creditof Rs. 2.48 crores on the strength of fake purchase invoices issued in the name of 21 fictitious entities. It has also allegedly been found to have passed on bogus Input Tax Credit of 2.48 crores to the tax payers within and outside the state of Odisha in the name of the firm of the Petitioner. It has also been alleged that the Petitioner in collusion with others has been found to have created and operated 6 fictitious firms to avail utilize bogus Input Tax Credit ITC) of Rs.34.23 crores in their names on the strength of fake purchase invoices without physical receipt of goods and has passed on the same to recipients both within and outside the 3. The learned Counsel for the Petitioner has contended that the petitioner has always made genuine sale and purchase of goods using genuine GSTN and has paid Tax accordingly. He further submitted that the petitioner has been in custody since the month of 12.3.2020 and in the meantime charge sheet has been filed on 07.05.2020 U s.132(1)(b)(c)(i) of OGST Act 2017. The fact that an earlier bail application has been rejected by the learned Addl. Sessions JudgecumSpecial Judge CBI Court No.1 BBSR vide its order dated 25.03.2020 has been brought on record. The investigation has been kept pending for a long time and no purpose would be solved by keeping the petitioner in custody since he has been examined and all the relevant evidences required for adjudication are now on record. He further submitted that the petitioner is willing to co operate with the prosecution as and when required. He also undertakes to produce the Audit report for the relevant period i.e. financial year from 2017 to 2019. 4. The learned Counsel for the State on the other hand has made detailed submissions and has painstakingly taken us through the records of the case to demonstrate the alleged manner in which the bogus ITC has been claimed and passed on to other persons. He has taken us through the relevant rules to show that mere grant of a registration under the Act does not ipso facto grant a license to the accused person to abuse the process of law. He has contended that the Petitioner received invoices and E waybills through his mail from the other accused persons i.e. Vikash Sarawagi and Ankit Agarwal of M s. Utsav Enterprises M s. Blenders Iron & Steel and M s. Shree Shyam Enterprises which is evidenced from the mail of the Petitioner. 5. He further contends that the Petitioner has allegedly admitted that he has purchased goods worth of Rs.2 96 10 354 from M s. Blenders Iron & Steel bearing during the period from August 2018 to October 2018. However as per the Bank statement belonging to M s. Sahoo Traders an amount of Rs.3 34 31 625 seems to have been paid to M s. Blenders Iron & Steel for the period from 31.08.2018 to 19.01.2019. Similar connivance has been attributed to other accused persons namely Ankit Agarwal and Bhabagrahi Manik to contend that they have effected fictitious transactions with these fake firms to commit offences under the Act. Lastly the learned counsel for the petitioner has placed strenuous reliance on the order passed by this Court in case of Amit Beriwal v. State of Odisha1 decided on 27.7.2020. 6. The facts in issue here are that the present petitioner is having a business entity in the name and style of M s. Sahoo Traders office and stationed at Bhubaneswar since last 10 years. It has been contended that the petitioner being a genuine business man has always paid the tax due for which he has been awarded by the concerned Department in the past. The records of GST paid have been produced for the financial years from 2017 to 2018 2018 to 2019 and 2019 to 2020. It has been 1BLAPL No. 22120 submitted that the petitioner has been maintaining the records as required in law. It was further stated that the petitioner is a genuine businessman who prior to start the above iron and steel material products had availed a cash credit loan by mortgaging all his personal parental property with the City Union Bank for an amount of Rs.1 22 26 269 . 7. This Court while dealing with the contention of the counsels for the parties has taken note of the fact that in such matters the evidence is largely based on documentary evidence. Once the charge sheet has been filed unless antecedents to the contrary can be demonstrated the presence of the accused may not be required to take the prosecution to its logical conclusion. 8. The object of the law in question is to act as a deterrent in blocking loopholes in an otherwise nascent law which concerns itself with the collection of revenue for the State. Section 132(1) i)of the Act provides that in cases where the amount of tax evaded or the amount of input tax credit wrongly availed or utilised or the amount of refund wrongly taken exceeds five hundred lakh rupees with imprisonment for a term which may extend to five years and with fine. Similarly Section 132(ii) of the Act provides a punishment with imprisonment for a term which may extend to three years and with fine when the amount in question is greater than Rs.2 crores but does not exceed Rs. 5 crores. Likewise the punishment prescribed under Section 132 1)(iii) for amount between one crore to two crores the maximum imprisonment can be for a maximum period of one year. In cases where the amount is less than one crore of rupees the same has been made compoundable. It may also be noted that the present proceedings are still at a teething stage and may if the parties choose be subject to the rigours of law as prescribed under the Statute i.e. assessment appeal and revision etc. Till such time the guilt of the accused person would not have crystallized and it would difficult to pre judge at the stage of hearing an application for bail what the ultimate punishment imposed would be. In such circumstances keeping an accused in custody might not ultimately achieve the ends of justice. 9. While deciding the controversy at hand this Court was taken through the view taken by other High Courts in such matters with an endeavour to impress upon the fact that the Courts are gradually becoming more lenient and alive to the fact that the assessment in such matters is largely based on documents or documentary records and also that generally the completion of proceedings has become tedious and time taking. It is these factors including the fact that the proceedings do not attain finality till the time the person in default or accused has availed all these remedies available to him under the act in question. Such a view can be seen in the cases of Rakesh Kumar Khandelwal v UOI2 Kishor Wadhwani v State of M.P.3 Vijay Kumar Nair v State of M.P.4 Lalit Kumar Gandhi v State of M.P.5 and Nitesh Wadhwani v State of MP.6Considering the fact that the nature of the offence under the Act compoundable in nature the bail has been granted in the case of Sanjay Kumar Bhuwalka v.Union of India7 and Sanjay Kumar Bhuwalka v.Union of India8. 10. However the most cogent reasoning has been adduced by the Madras High Court in the case of Jayachandran AlloysLtd. Vs. Superintendent of GST & C. Ex. Salem9it has been aptly held that “38. Though the discussions and conclusions therein have been rendered in the context of Chapter V of the Finance Act 1994 levying service tax I am of the view that they are equally applicable to the provisions of the CGST Act as well. Section 132 of the Act as extracted earlier imposes a punishment upon the Assessee that ‘commits’ an offence. There is no dispute whatsoever that the offences set out under to of the provision refer to those items that 22019 SCC OnLine Raj 6711 32020 SCC OnLine MP 1734 42020 SCC OnLine MP 1731 52020 SCC OnLine MP 836 62020 SCC OnLine MP 1732 72018 SCC OnLine Cal 4674 82018 SCC OnLine Cal 9774 92019G.S.T.L. 321constitute matters of assessment and would form part of an order of assessment to be passed after the process of is complete and taking into account the submissions of the Assessee and careful weighing of evidence found and explanations offered by the Assessee in regard to the same. 39. The use of words ‘commits’ make it more than amply clear that the act of committal of the offence is to be fixed first before punishment is imposed. The allegation of the revenue in the present case is that the petitioner has contravened the provisions of Section 16(2) of the Act and availed of excess ITC in so far as there has been no movement of the goods in the present case as against the supplier and the Petitioner and the transactions are bogus and fictitious created only on paper solely to avail ITC. The manner of recovery of credit in cases of excess distribution of the same is set out in Section 21 of the Act. This section provides that where the Input Service Distributor distributes credit in contravention of the provisions contained in Section 20 resulting in excess distribution of credit to one or more recipients the excess credit so distributed shall be recovered from such recipients along with interest and the provisions of Section 73 or Section 74 as the case may be shall mutatis mutandis apply for determination of amount to be 40. Thus ‘determination’ of the excess credit by way of the procedure set out in Section 73 or 74 as the case may be is a prerequisite for the recovery thereof. Sections 73 and 74 deal with assessments and as such it is clear and unambiguous that such recovery can only be initiated once the amount of excess credit has been quantified and determined in an assessment. When recovery is made subject to ‘determination’ in an assessment the argument of the department that punishment for the offence alleged can be imposed even prior to such assessment is clearly incorrect and amounts to putting the cart before the horse.” 11. In so far as the reliance is placed on the case of Amit Beriwal supra) is concerned it is to be borne in mind that each case depends on the facts of that case. The position regarding bail in such offences as provided by the Delhi High Court in the case of H. B. Chaturvedi vs C.B.I10: Para 9. In Anil Mahajan v. Commissioner of Customs & Anr.11 this court after considering the judgments inter alia in Gurcharan Singh & Others v. State 459 2010. 1184DLT 854 12AIR 1978 SC 179. 13Air 1978 SC 729. circumstances the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail. For the purpose of granting or refusing bail there is no classification of the offences except the ban under Section 437(1) of the Criminal Procedure Code against grant of bail in the case of offences punishable with death or life imprisonment. Hence there is no statutory support or for classifying offences into different categories such as economic offences and for refusing bail on the ground that the offence involved belongs to a particular category. When the Court has been granted discretion in the matter of granting bail and when there is no statute prescribing a special treatment in the case of a particular offence the Court cannot classify the cases and say that in particular classes bail may be granted but not in others. Not only in the case of economic offences but also in the case of other offences the Court will have to consider the larger interest of the public or the State. Hence only the considerations which should normally weigh with the Court in the case of other non bailable offences should apply in the case of economic offences also. It cannot be said that bail should invariably be in cases involving serious economic offences. Similarly the Supreme Court in the case of Sanjay Chandra vs CBI14 iterated the importance position of bail in criminal jurisprudence: Para 26. The trial may take considerable time and it looks to us that the appellants who are in jail have to remain in jail longer than the period of detention had they been convicted. It is not in the interest of justice that accused should be in jail for an indefinite period. No doubt the offence alleged against the appellants is a serious one in terms of alleged huge loss to the State exchequer that by itself should not deter us from enlarging the appellants on bail when there is no serious contention of the respondent that the accused if released on bail would interfere with the trial or tamper with evidence. We do not see any good reason to detain the accused in custody that too after the completion of the investigation and filing of the charge sheet. This Court in the case of State of Kerala Vs. Raneef15 has stated: 15. In deciding bail applications an important factor which should certainly be taken into consideration by the court is the delay in concluding the trial. Often this takes several years and if the accused is denied bail but is ultimately acquitted who will restore so many years of his life spent in custody Is Article 21 of the Constitution which is the most basic of all the fundamental rights in our Constitution not violated in such a case Of course this is not the only factor but it is certainly one of the important factors in deciding to grant bail. the present case respondent has already spent 66 days in custody 1 SCC 784 stated in Para 2 of his counter affidavit) and we see no reason why he should be denied bail.” 12.In view of the above discussion it is directed that the petitioner be released on bail on furnishing a bail bond of Rs.5 00 000 Rupees five lakhs) with one surety for the like amount to the satisfaction of the learned trial court with the following conditions: i) The petitioner shall co operate with the trial and shall not seek unnecessary adjournments on frivolous grounds to protract the trial ii) The petitioner shall not directly or indirectly allure or make any inducement threat or promise prosecution witnesses so as to dissuade him disclosing truth before the Court iii) The involvement of the petitioner in any other similar nature of offence under the GST Act would entail cancellation of bail iv) In case of his involvement in any other criminal activities or breach of any other aforesaid conditions the bail granted in this case may also be cancelled. v) The petitioner shall submit his passports if any before the learned trial court and shall not leave India without prior permission of this Court. It is also clarified that the discussions hereinabove are only limited to the purpose of the instant application and that the assessment of the tax liability of the petitioner and his firm process. shall be carried out strictly in accordance with the applicable provisions of law uninfluenced by the observations as aforesaid. It is further stipulated that in such matters the adjudicating authority shall do well to expeditiously complete the assessment The bail application is accordingly disposed of. S. K. Panigrahi J. Orissa High Court Cuttack. The 23rd. day of December 2020 AKK LNB

Magistrate not to take cognizance of defamation complaint filed by non-aggrieved person: High Court of Delhi

If a Magistrate were to take cognizance of the offence of defamation on a complaint filed by one who is not an “aggrieved person”, the trial and conviction of an accused in such a case by the Magistrate would be void and illegal. This was held in the case of Business Standard Pvt Ltd & Anr. Vs. Lohitaksha Shukla & Anr [CRL.M.C. 2120/2017] in the High Court of Delhi by Hon’ble Justice Suresh Kumar Kait The basis of the complaint is an article titled as “The Long and Short of it” which was published on 18.03.2016 in the newspaper of petitioner- Business Standard under the authorship of Mitali Saran. The complainant has alleged that the article is not based on facts and contains some defamatory insinuations against RSS and its members, as it accused members of RSS being oppressive to Indians, mentally disturbed and disrespectful to Indian National Symbols ridden with psycho sexual complexes, practitioners of discrimination based on caste and physically unfit. Further he said that being a member of RSS, his reputation has been adversely affected. is petitioners seek to  quash  the summoning order by Magistrate. The counsel for Business Standard Private Limited averred that the complainant is not “person aggrieved” within the meaning of Section 199(1) Cr.P.C. and hence, is not competent to institute a private complaint. It must also be noted that the author has claimed that she is a columnist of long standing repute and she has been writing weekly for the newspaper Business Standard and her literary style involves using satire, irony and humour to comment on the latest political and social developments. On the other hand, learned counsel for respondent submitted that the impugned summoning order suffers from no illegality or infirmity and these petitions deserve to be dismissed. While examining Section 499 of IPC- Defamation, the court relied upon the judgement of Punjab & Haryana High Court in N. Ram, Editor-In-Chief and Publisher of ‘The Hindu [2012 (3) RCR (Crl) 161] where it was held “Explanation 4 to Sec. 499, IPC places a curb on the general description of definition contained in the section. It makes only such imputations punishable as might lower a person’s reputation in respect of some aspects of his personality and makes an imputation defamatory only if it lowers a person in the estimation of others. It implies a fall in reputation. The reputation has been used to denote the estimation in which a person is held by others, the character imputed to him in the community or the society to which he belongs.” The court went on to observe that provisions of Section 199 (1) Cr.P.C. mandates that the Magistrate can take cognizance of the offence only upon receiving a complaint by a person who is aggrieved. The purpose and intent of this provision is to limit the power of Magistrate to take cognizance of offences pertaining to defamation in order to prevent and discourage the filing of frivolous complaints. For this the court relied upon the ratio held in Mehmood UL Rehman Vs. Khazir Mohammad Tunda & Ors.[ (2015) 12 SCC 420].

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 17.02.2021 Pronounced on: 01.03.2021 CRL.M.C. 621 2017 & Crl.M.As.2665 2017 & 7817 2019 BUSINESS STANDARD PVT LTD & ANR. Petitioners Through: Mr. N.B.Joshi Mr. Neeraj K. Gupta Mr. Ranjeet Kumar Singh LOHITAKSHA SHUKLA & ANR. Respondents Through: Mr. Mukesh Sharma Advocate for respondent No.1 CRL.M.C. 2120 2017 & CRL.M.As. 8715 2017 & 7838 2019 MITALI SARAN Petitioner Through: Mr. Trideep Pais Advocate with Ms.Sanya Kumar Advocates LOHITAKSHA SHUKLA & ORS. Respondents Through: Mr. Mukesh Sharma Advocate for respondent No.1 HON BLE MR. JUSTICE SURESH KUMAR KAIT JUDGMENT Petitioners in the above captioned two petitions are seeking quashing of order dated 08.08.2016 as well as Complaint Case No. 631499 2016titled as Lohitaksha Shukla Vs. Business Standard Private Limited & Ors. pending before the court of Metropolitan Magistrate Saket Court New Delhi. The basis of the complaint is an article titled as “The Long and Short of it” which was published on 18.03.2016 in the newspaper of petitioner Business Standard and was also available on the website under the authorship of Mitali Saran. In the first captioned petitionpetitioner No.1 is Business Standard Private Limited who is running a newspaper under the name and style of “Business Standard” and petitioner No.2 A.K. Bhattacharya is the Editorial Director. In the said petition respondent No.1 Lohitaksha Shukla is the complainant and respondent No.2 Mitali Saran is the author of the article. The above captioned second petition preferred by the author Mitali Saran and respondents therein are the complainant Lohitaksha Shukla Business Standard Private Limited and Editorial Director A.K. Bhattacharya. Since both the petitions pertain to one common complaint and parties to both the petitions are similar therefore with the consent of both the sides Crl.M.C.621 2017 & Crl.M.C.2120 2017 these petitions were heard together and are being disposed of by this common judgment. Complainant Lohitaksha Shukla who is an Advocate by profession has averred that he was informed about the factum of publication of the article by his friends. In the complaint he has alleged that the article is not based on facts and contains some defamatory insinuations against RSS and its members as it accused members of RSS being oppressive to Indians mentally disturbed and disrespectful to Indian National Symbols ridden with psycho sexual complexes practitioners of discrimination based on caste and physically unfit. Complainant has averred that being a member of RSS his reputation has been adversely affected. learned Metropolitan Magistrate after examining complainant in the pre summoning evidence and considering the provisions of Sections 203 204 Cr.P.C. as well as Section 499 IPC held as under: “In view of the same I find that there is sufficient material for summoning the accused no.1 2 and 3 u s 500 IPC. Hence accused above said are summoned on filing of PF RC within a week from today along with supply of copy of complaint and documents for as many as accused are summoned for 21.11.2016.” Quashing of the aforesaid summoning order as well as complaint is sought by petitioners Business Standard Private Limited and Editorial Crl.M.C.621 2017 & Crl.M.C.2120 2017 Director A.K. Bhattacharyaon the ground that if a Magistrate were to take cognizance of the offence of defamation on a complaint filed by one who is not an “aggrieved person” the trial and conviction of an accused in such a case by the Magistrate would be void and illegal. To seek quashing of the complaint it is submitted that it is absolute abuse of process of law and it has been filed to harass the petitioners. In particular petitioner No.2 has averred that the allegation of complainant that he was ‘Editor in Chief’ of petitioner No.1 at the time of publication of article is baseless as he has never been ‘Editor in Chief’ of petitioner No.1. It is averred that the complainant is not “person aggrieved” within the meaning of Section 199(1) Cr.P.C. and hence is not competent to institute a private complaint and even if the complaint is taken on the face value the same does not disclose any offence whatsoever which falls within the ambit of Sections 499 and 500 IPC. In support of aforesaid submissions learned counsel appearing for Business Standard Private Limited and Editorial Director A.K. Bhattacharya relied upon Hon’ble Supreme Court’s decisions in S. Khushboo Vs. Kanniammal & Anr. 5 SCC 600 decision of this Court dated 03.07.2018 in Crl.M.C. 4514 2015 titled as S.T.P.Singh Vs. Crl.M.C.621 2017 & Crl.M.C.2120 2017 Tarsem Singh & Ors. decision of High Court of Bombay dated 04.09.2018 in Crl. Application No. 2004 2018 titled as Ashok Vs. The State of Maharashtra and decision of High Court of Punjab & Haryana in N.Ram Editor in Chief and Publisher of the Hindu and Others Vs. Rashtriya Swayamsewak Sangh Haryana Prant 2012RCR161. 11. The stand of petitioner Author Mitali Saran while seeking quashing of the impugned order is that in the pre summoning evidence no evidence has been led by the complainant in support of his complaint and the learned trial court has erred in not appreciating that the complainant was not a member of RSS which is essential to establish as an “aggrieved person” for the purpose of Section 199 Cr.P.C. and had thus no locus to file the complaint. 12. The author Mitali Saran has claimed that she is a columnist of long standing repute and has been writing weekly for the newspaper Business Standard and her literary style involves using satire irony and humour to comment on the latest political and social developments. It is submitted on her behalf that the so called defamatory averment in the complaint that “After reading the above said article on the website many of my friends called up and expressed their displeasure over my association with RSS and Crl.M.C.621 2017 & Crl.M.C.2120 2017 asked me to quit” does not amount to defamation either to him or to RSS. The reason for complainant’s friends to ask him to quit RSS could not be this article alone but might be because of previous poor opinion about RSS. It is also submitted on her behalf that since complainant has not established that he was authorised by the RSS to file the complaint on its behalf or if he holds any post in the RSS therefore it was incumbent upon him to obtain leave of the Court for instituting the complaint in a representative capacity and in absence thereof the learned trial court should have dismissed the complaint at the first instance. In support of her submissions learned counsel placed reliance upon decision of Hon’ble Supreme Court in Abhijit Pawar Vs. Hemant Madhukar Nimbalkar & Anr.3 SCC 528 Mehmood UL Rehman Vs. Khazir Mohammad Tunda & Ors. 12 SCC 420 S. Khushboo Vs. Kanniammal & Anr.5 SCC 600 and Shah Rukh Khan Vs. State of Rajasthan & Ors.SCC OnLine Raj 733. 15. Reliance is also placed upon decision of Allahabad High Court in Tek Chand Gupta Vs. R.K. Karanja and Others 1967 SCC OnLine All 282 and of Madras High Court in G. Narasimhan G. Kaswturi & K.Gopalan Vs. T.V. Chokkappa2 SCC 680. Crl.M.C.621 2017 & Crl.M.C.2120 2017 16. On the other hand learned counsel for respondent complainant Lohitaksha Shukla submitted that the impugned summoning order suffers from no illegality or infirmity and these petitions deserve to be dismissed. In support of his case learned counsel placed reliance upon decision of this Court in Abhishek Agrawalla Vs. Boortmalt NV & Anr. 2011 DRJ 421 decision of Madras High Court in G. Narasimhan G. Kaswturi & K.Gopalan Vs. T.V. Chokkappa 2 SCC 680 and decision of Allahabad High Court in Tek Chand Gupta Vs. R.K. Karanja and Others 1967 SCC OnLine All 282. The arguments advanced by counsel representing both the sides were heard at length and I have gone through the complaint impugned order material placed on record as well as decisions relied upon by the parties. 18. The complainant has instituted the complaint under Sections 190 200 Cr.P.C. seeking punishment of respondents therein for the offence under Section 500 IPC. The complainant claims himself to be a Swayamsewak of RSS and that the article in question has adversely affected his reputation being member of RSS. He has averred in his pre summoning evidence that “After reading the above said article on the website many of my friends called up and expressed their displeasure over my association with RSS and Crl.M.C.621 2017 & Crl.M.C.2120 2017 asked me to quit”. 19. The learned trial court while relying upon copy of the impugned article along with certificate under Section 65 B of Evidence Act has observed that “the same is not covered under any of the exceptions is laid down in Section 499 IPC with regard to application of provisions pertaining to Section 499 IPC has made the following observations: “(27) is evident the record complainant has filed the complaintagainst the petitioners accused inter alia on the ground that they have printed published and circulated the statement Annexure P 7) delivered by their co accused and former Central Cabinet Minister and Senior Congress Leader Mr. Arjun Singhintentionally just to harm the goodwill reputation of RSS and its followers knowing fully well it to be false. In this way they were stated to have committed the offences punishable under Sections 499 to 501 IPC. As is apparent that Section 499 IPC postulates 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 the cases hereinafter expected to defame that Crl.M.C.621 2017 & Crl.M.C.2120 2017 person.” The words “knowing or having reason to believe” intending to harm the reputation are very important and carry significant meaning in this regard. Not only that Explanation 4 further posits that “no imputation is said to have harm a person s reputation imputation directly or indirectly estimation of others lowers the moral or intellectual character of that person or lowers the character of that person in respect of his caste or his calling or lowers the credit of that person or causes it to be believed that the body of that person is in a loathsome state or in a state generally considered as disgraceful.” In this manner Explanation 4 to Sec. 499 IPC places a curb on the general description of definition contained in the section. It makes only such imputations punishable as might lower a person s reputation in respect of some aspects of his personality and makes an imputation defamatory only if it lowers a person in the estimation of others. It implies a fall in reputation. The reputation has been used to denote the estimation in which a person is held by others the character imputed to him in the community or the society to which he belongs.” 22. The explanation 4 of Section 499 IPC mandates that imputation can be said to harm a person’s reputation only if it directly or indirectly lowers the moral and intellectual character of that person or of his calling or the Crl.M.C.621 2017 & Crl.M.C.2120 2017 credit of that person in the estimation of others. This requirement has not been satisfied in the present case. In the present case the complainant has not led any evidence to establish how his reputation was harmed or his moral or intellectual character was lowered as a result of the said article. However he has claimed that he has been asked by his friends to leave RSS as a result of this article but he has not brought anyone in the witness box in support of this assertion and thereby has failed to prove that article brought any kind of defamation to him or that it has lowered the reputation of RSS in the eyes of his friends or RSS. So trial court has erred in not applying its mind on this 24. The complainant claims himself to be Swayamsewak of RSS and its member. But again he hasn’t got any witness examined from RSS or brought any material on record to prove that he is a member of RSS. 25. On this aspect during the course of arguments learned counsel for respondent complainant relied upon a decision of Allahabad High Court in Tek Chand Guptawho had filed a complaint under Section 500 I.P.C. against Chief Editor printer and publisher of “Blitz” Crl.M.C.621 2017 & Crl.M.C.2120 2017 Hindi weekly of Bombay for publication of imputations on pp. 3 and 15 in the said paper on 28.03.1964 which allegedly had harmed the reputation of Rashtriya Swayamsevak Sangh and of which complainant was a member had reversed the order of the Special Magistrate as well as Additional District Magistrate Dehradun and restored the complaints and remitted back to the Magistrate to be proceeded with in accordance with the law while observing that defamation of a class or body of persons is also defamation of individual members of that class or body and a complaint by an individual member of that class or body cannot be said to be not maintainable. 26. Learned counsel for complainant respondent No.1 also submitted that the decision in Tek Chand Gupta has been cited by the Hon’ble Supreme Court in G. Narasimhan G. Kasturi and K.Gopalan to hold that the High Court had misdirected itself in missing the real issue raised in the petitions as to whether the conference was a determinate and an identifiable body so that defamatory words passed in the resolution would be defamation to the individuals who composed it. 27. The decisions in Tek Chand Gupta and G. Narasimhan Supra) were also relied by learned counsel appearing for petitioners to Crl.M.C.621 2017 & Crl.M.C.2120 2017 submit that the complainant herein does not fall within the category of “aggrieved person”. 28. Learned counsel for petitioners submitted that in Tek Chand Gupta Supra) the complainant was a member of a body of large size scope of which was too wide and therefore the court held that defamation of a class or body of persons is also defamation of individual members of that class or body and a complaint by an individual member of that class or body cannot be said to be not maintainable. However in the instant case complainant has failed to prove that he is a member of RSS nor he has placed anything on record to prove it and therefore he does not fall within the category of “aggrieved person”. 29. Similarly it was contended on behalf of petitioners that decision in G. Narasimhan the Hon’ble Court had opined that under the provisions of Section 198 Cr.P.C. the complaint was unsustainable as the news item in question did not mention the name of accused nor did it contain any defamatory imputation against him individually. The Hon’ble Supreme Court had further held that Section 499 of the Penal Code which defines defamation lays down that whoever by words either spoken or intended to be read or by signs etc. makes or publishes any imputation Crl.M.C.621 2017 & Crl.M.C.2120 2017 concerning any person intending to harm or knowing or having reason to believe that the imputation will harm the reputation of such person is said to defame that person. This part of the Section makes defamation in respect of an individual an offence. While observing so the Hon’ble Supreme Court held that “the conference clearly was not an identifiable or a definitive body so that all those who attended it could be said to be its constituents who if the conference was defamed would in their turn be said to be defamed.” 30. Hence reliance placed upon decision in Tek Chand and G. Narsimhan is of no use as in these cases complainants were members of the said bodies and were thus covered under the domain of “aggrieved party”. In another case in S. Khushboothe Hon’ble Supreme Court while dealing with the case of appellant a well known actress who had the Hon’ble Supreme Court seeking quashing of criminal proceedings pending against her for some remarks made by her in an interview in leading news magazine and later the same issue was reported in a news periodical while relying upon observations in G. Narasimhan Supra) quashed the criminal complaints while observing as under: “39. We can also approvingly refer to an earlier decision of this Court in G. Narasimhan v. T.V. Chokkappa. In that Crl.M.C.621 2017 & Crl.M.C.2120 2017 case a controversy had arisen after The Hindu a leading newspaper had published a report about a resolution passed by Dravida Kazhagham a political party in its conference held on 23 1 1971 to 24 1 1971. Among other issues the resolution also included the following words: “It should not be made an offence for a person s wife to desire another man.” The Hindu in its report gave publicity to this resolution by using the following words: “The Conference passed a resolution requesting the Government to take suitable steps to see that coveting another man s wife is not made an offence under the Penal Code 1860.” 40. A complaint under Sections 499 500 and 501 IPC was filed in response to this report. Like the present case the Court in G. Narasimhan case had to consider whether the complainant had the proper legal standing to bring such a complaint. The Court did examine Section 198 of the Code of Criminal Procedure 1898 and observed that the said provision laid down an exception to the general rule that a criminal complaint can be filed by anyone irrespective of whether he is an “aggrieved person” or not. But there is a departure from this norm insofar as the provision permits only an “aggrieved person” to move the Court in case of Crl.M.C.621 2017 & Crl.M.C.2120 2017 defamation. This section is mandatory and it is a settled legal proposition that if a Magistrate were to take cognizance of the offence of defamation on a complaint filed by one who is not an “aggrieved person” the trial and conviction of an accused in such a case by the Magistrate would be void and illegal. 41. This Court in G. Narasimhan case further noted that the news item in question did not mention any individual person nor did it contain any defamatory imputation against individual. Accordingly it was held complainant was not a “person aggrieved” within the meaning of Section 198 CrPC 1898. The Court also took note of Explanation 2 to Section 499 IPC which contemplates defamation of “a company or an association or any collection of persons as such”. Undoubtedly the Explanation is wide but in order to demonstrate the offence of defamation such a collection of persons must be an identifiable body so that it is possible to say with precision that a group of particular persons as distinguished from the rest of the community stood defamed. In case the identity of the collection of persons is not established so as to be relatable to the defamatory words or imputations the complaint is not maintainable. In case a class is mentioned if such a class is indefinite the complaint cannot be entertained. Furthermore if it is not possible to ascertain Crl.M.C.621 2017 & Crl.M.C.2120 2017 the composition of such a class the criminal prosecution cannot proceed. 42. While case this Court in G. Narasimhan placed reliance on the judgment of the House of Lords in Knupffer v. London Express Newspaper Ltd.wherein it had been held that it is an essential element of the cause of action for defamation that the words complained of should be published “of the complainant plaintiff”. Where he is not named the test would be whether the words would reasonably lead people acquainted with him to the conclusion that he was the person referred to. In fact it is the reputation of an individual person which must be in question and only such a person can claim to have “a legal peg for a justifiable claim to hang on”. 54. In conclusion we find that the various complaints filed against the appellant do not support or even draw a prima facie case for any of the statutory offences as alleged. Therefore the appeals are allowed and the impugned judgment and order of the High Court dated 30 4 2008 is set aside. The impugned criminal proceedings are hereby Crl.M.C.621 2017 & Crl.M.C.2120 2017 In the aforesaid view of the matter it is pertinent to mention provisions of Section 199(1) Cr.P.C. which read as under: “199. Prosecution for defamation. 1) No Court shall take cognizance of an offence punishable under Chapter XXI of the Indian Penal Codeexcept upon a complaint made by some person aggrieved by the offence: Provided that where such person is under the age of eighteen years or is an idiot or a lunatic or is from sickness or infirmity unable to make a complaint or is a woman who according to the local customs and manners ought not to be compelled to appear in public some other person may with the leave of the Court make a complaint on his or her behalf.” The afore noted provisions of Section 199Cr.P.C. mandates that the Magistrate can take cognizance of the offence only upon receiving a complaint by a person who is aggrieved. The purpose and intent of this provision is to limit the power of Magistrate to take cognizance of offences pertaining to defamation in order to prevent and discourage the filing of 34. Further a Bench of High Court of Rajasthan in Shah Rukh Khan frivolous complaints. Supra) has held as under: Crl.M.C.621 2017 & Crl.M.C.2120 2017 “38. In the case of Asha Parekh v. The State of Bihar the Hon ble Patna High Court dealt with a case where a group of lawyers had filed a defamation case against the actors the actress the director the producer the scriptwriter etc. of the movie Nadan. The case before this Court is in fact much similar to that one. In that case the complainant alleged that one of the characters had played the role of an advocate and that there were defamatory statements made against the lawyers as a class. The Hon ble Patna High Court observed as under: The essence of the offence of description of pain which is felt by a person who knows himself to be the object of the sentiments of his creatures and those inconveniences to which a person who the object of such unfavourable sentiment is exposed. The words or visible representation therefore complained of must contain an imputation concerning some particular person or persons whose identity can be established. If they contain no reflection upon a particular individual or individuals but equally apply to others although belonging to the same class an action for defamation will not lie. Crl.M.C.621 2017 & Crl.M.C.2120 2017 Further although the word ‘person’ in Section 499 of the Code includes a company or an association or a collection of persons as well as provided in explanation 2 of Section 499 but the class of person attributed to must be a small determinate body. Advocates as a class are incapable of being defamed. If any publication can be shown to refer specifically to particular then alone an action defamation may lie not otherwise. 39. Thus the law requires that the defamatory statement in order to be actionable be made against a definite and an identifiable group. However lawyers taken as a class cannot be identified with any particular individual indeterminate indefinite and unidentifiable as the members are: Firstly the members of this class are too varied to be reduced to a few traits. Their is not a homogenous class but a heterogeneous one made up of wonderfully different individuals. Secondly they are spread over the length and the breadth of the land. Thirdly the class is always in flux ever changing as new lawyers enter and old ones depart the profession. The entire members of the class are clearly unidentifiable and indeterminable. Moreover it is not the case of the respondent No. 2 to 7 that the Petitioner said anything specific about the lawyers of Kota who arguably Crl.M.C.621 2017 & Crl.M.C.2120 2017 would form a definite collection of persons. The remark made by the petitioner was applicable to the lawyers as a community. Thus a group of lawyers could not file a complaint against the petitioner for offence under Sections 499 and 500 IPC. Therefore the complaint is not even maintainable. This aspect too has escaped the notice of the learned Magistrate in passing the impugned order. 42. According to sub section in case of ordinary persons the complaint should be made by the person aggrieved but not necessarily the person defamed. According to sub section the person who has been defamed can also file a complaint. But in either case the complainant has to show that the defamatory statement aggrieves him. As stated above a person belonging to a class that is ill defined and indeterminate cannot file a for defamation. In the present case complainants belong to a community of lawyers a class in itself ill defined and indeterminate. Hence the complaint is not maintainable under the provision of Section 199 of the Code either. Hence the Magistrate could not have taken the cognizance. Even if the Petitioner before the learned Magistrate did not argue it the learned Magistrate could Crl.M.C.621 2017 & Crl.M.C.2120 2017 have considered the twin aspects of the maintainability of the complaint and the power to take cognizance in light of Section 199 of the Code. However the learned Magistrate chose to ignore these two requirements of the law in dealing with the application under Section 245(2) of the Code. The impugned order in the view of this Court is clearly In the present case the complainant has not been able to show as to how he is the “person aggrieved” within the definition of Section 199(1) Cr.P.C. and thus the contents of complaint suffers from vices of illegality or infirmity. Even complainant is not a part of “identifiable class” or definite “association or collection of persons” as enumerated in Explanation to Section 499 of IPC. In the aforesaid view of the matter I find that while taking cognizance of the complaint the trial court has not taken into consideration the afore noted provisions of law. 37. However reliance placed upon decision in Abhijit Pawaris of no help to the case of petitioners as in the said case question with regard to procedure adopted by the Magistrate for issuing notice being the accused persons outside his jurisdiction had been raised. Similarly in Abhishek Supra) a Bench of this Court had dealt with the case of summoning of an Crl.M.C.621 2017 & Crl.M.C.2120 2017 accused residing at far off place and the procedure adopted in that respect and so this case also does not touch the points raised in the petitions in hand. 38. The Hon’ble Supreme Court in Mehmood Ul Rehmanwhile deciding the scope of “opinion of Magistrate” on sufficient ground for proceeding to issue process to the accused has held as under: 10. In taking recourse to such a serious process this Court has consistently held that the Magistrate must apply his mind on the allegations on commission of the offence. In Darshan Singh Ram Kishan v. State of Maharashtra it was held that the process of taking cognizance does not involve any formal action but it occurs as soon as the Magistrate applies his mind to the allegations and thereafter takes judicial notice of the offence. To quote:“8. As provided by Section 190 of the Code of Criminal Procedure a Magistrate may take cognizance of an offence either upon receiving a complaint or upon a police report or upon information received from a person other than a police officer or even upon his own information or suspicion that such an offence has been committed. As has often been held taking cognizance does not involve any formal action or indeed action of any kind but Crl.M.C.621 2017 & Crl.M.C.2120 2017 occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance therefore takes place at a point when a Magistrate first takes judicial notice of an offence. This the position whether Magistrate takes cognizance of an offence on a complaint or on a police report or upon information of a person other than a police officer. Therefore when a Magistrate cognizance of an offence upon a police report prima facie he does so of the offence or offences disclosed in such report.” 20. The extensive reference to the case law would clearly show that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence there has to be application of mind as to whether the allegations in the complaint when considered along with the statements recorded or the inquiry conducted thereon would constitute violation of law so as to call a person to appear before the criminal court. It is not a mechanical process or matter of course. As held by this Court in Pepsi Foods Ltd. to set in motion the process of criminal law against a person is a serious matter. Crl.M.C.621 2017 & Crl.M.C.2120 2017 22. The steps taken by the Magistrate under Section 190(1)(a) CrPC followed by Section 204 CrPC should reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter by asking the person against whom the violation of law is alleged to appear before the court. The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence and when considered along with the statements recorded would prima facie make the accused answerable before the court. No doubt no formal order or a speaking order is required to be passed at that stage. The Code of Criminal Procedure requires speaking order to be passed under Section 203 CrPC when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 CrPC if any the accused is answerable before the criminal court there is ground for proceeding against the accused under Section 204 CrPC by issuing process for appearance. The application of mind is best Crl.M.C.621 2017 & Crl.M.C.2120 2017 demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190 204 CrPC the High Court under Section 482 CrPC is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before the criminal court as an accused is serious matter affecting one s dignity self respect and image in society. Hence the process of criminal court shall not be made a weapon of harassment.” 39. On perusal of complaint in question impugned order various provisions of law discussed above and pertinent observations of the Hon’ble Supreme Court in Mehmood Ul Rehman I have no hesitation to hold that the complaint in question is not maintainable and is liable to be is ordered accordingly. Consequentially proceedings emanating there from are also quashed. In view of above these petitions and pending applications are accordingly disposed of. MARCH 01 2021 SURESH KUMAR KAIT) JUDGE Crl.M.C.621 2017 & Crl.M.C.2120 2017

Not prude to grant bail to accused person who is likely to abscond: High Court of Meghalaya

Bail is usually granted to people accused in criminal cases when they cannot tamper with the outcome of the case and they are not likely to abscond. However in cases where the accused may potentially abscond and his attendance in court is not guaranteed, it would not be wise to grant him bail. This was addressed by a single member bench of the High Court of Meghalaya consisting of Justice W. Diengdoh in the case of Biolinda Sten v State of Meghalaya & Anr. [BA. No. of 2021] on the 14th of June 2021. The petitioner came before the court and applied for bail for the accused person, Sharingstar Sten who had been arrested on 26th of February 20021 after being accused of engaging in sexual assault of a minor under Section 5(k)/6 of the Protection of Children from Sexual Offences Act (POCSO) 2012. The accused person allegedly sexually assaulted the minor sister of the informant, Pawshai Kharumnuid who lodged the FIR on 28th February 2018. The petitioner contended that the accused is the sole-bread earner of the family and that he has remained in prison for a very long period of time. It was brought to the notice of the court by the petitioner that the trial has been going on for a long period of time and that it did not seem like it would be finished any time soon so keeping the accused in jail would be a violation of his personal liberty under Article 21 of the Indian Constituion. However it was reported by the Investigating officer that the accused person could not be apprehended when the FIR was filed and that he had absconded through the course of the investigation and was declared an absconder at the time. The High Court of Meghalaya upheld the view of the trial court that bail should not be granted to the accused considering that he was arrested on a Non Bailable Arrest Warrant (NBAW) and that he had already absconded once and could possibly make an attempt to do the same in the future.

Serial No. 01 Regular List BA. No. 21 Smti. Biolinda Sten HIGH COURT OF MEGHALAYA AT SHILLONG Date of Decision: 14.06.2021 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. S.S. Yadav Adv. Mr. N.D. Chullai AAG. with Mr. A.H. Kharwanlang GA. Mr. S. Sengupta Addl. Sr. GA. ii) Whether approved for publication in press: 1. Matter taken up today via video conferencing. The Petitioner have come before this Court with an application under Section 439 Cr.P.C. with a prayer for grant of bail on behalf of the accused person Shri Sharingstar Sten who was arrested on 26.02.2021 on the strength of a Non bailable warrant of arrest in connection with Special POCSO) Case No. 20 under Section 5(k) 6 of the POCSO Act. This application was preferred after four similar bail applications were rejected by the learned Trial Court. On the previous date of hearing this Court having heard the parties have called for production of the records of the said SpecialCase No. 20 which was duly produced accordingly. From the application and the records what can be seen is that an FIR was lodged on 28.02.2018 by one Shri Pawshai Kharumnuid who has alleged that the accused Shri Sharingstar Sten had sexually assaulted his sister who is a minor and who is a person with disability on 23.02.2018 at about 11.00 A.M at Jariot village. The said FIR was addressed to the Officer in Charge Diengpasoh Police Station East Khasi Hills District. Again from the records including the case dairy it is seen that after registration of the FIR as Diengpasoh P.S case No. 2(2) of 2018 under Section 5(k) 6 of the POCSO Act investigation was launched and the Investigating Officer has proceeded with recording of statement of all relevant witnesses and causing of examination of the victim medically at the Diengpasoh PHC on 26.02.2018. The victim was also referred to the Ganesh Das Hospital Shillong for further examination which was done so on 26.02.2018 itself at about 4.00 P.M. The I O then reported that the accused person could not be apprehended as he has absconded right through the course of investigation. Therefore the I O while submitting the charge sheet has opined that a prima facie case is found established against the accused Shri Sharingstar Sten and that he is declared an absconder. 7. When the matter was taken up by the Trial Court summons was issued upon the accused but the Court on noting that the accused was declared an absconder has caused a Non Bailable Warrant of Arrest to be Eventually the police apprehended the accused on 26.02.2021 and he was accordingly produced before the Trial Court on 01.03.2021 and was remanded to judicial custody. 9. Mr. S.S. Yadav learned counsel for the Petitioner has submitted that this instant application was preferred before this Court after four similar bail applications were filed before the Trial Court which were rejected. Coming to his argument in this case the learned counsel has submitted that the manner in which the case proceeded against the accused person was not in accordance with law and procedure inasmuch as the accused was never in receipt of the summon issued to him and the learned Trial Court without first resorting to issue of a bailable warrant of arrest has straight away issued the as alleged. It is further submitted that the accused person has no knowledge of the FIR lodged against him and has also denied that he has committed the offence 11. As to the offences cited in the charge sheet the learned counsel has submitted that a perusal of the FIR would show that no penetrative sexual assault was committed as the medical report of the victim revealed that there were no injuries found in her body nor was the hymen torn to indicate penetrative sexual assault. Even the age of the victim was challenged as the medical report indicates that she is about 18 years of age and as such no case under POCSO Act can be made out it is further submitted. 12. The learned counsel for the Petitioner has however urged upon this Court to consider the prayer for grant of bail to the accused mainly on the ground that the accused was not actually an absconder but that after being estranged from his wife at Diengpasoh he had left his matrimonial house and went to stay with his mother at Klew village in Ri Bhoi District and nothing prevented the police to issue the summon to him at his present address which was not done so. Another contention raised is that since the accused was arrested on 26.02.2021 the Court had fixed the case for copies for the last 8(eight) dates and has thus not progressed at all which considering the present pandemic situation there is every likelihood of the case not progressing at all and as such incarcerating the accused any further would not serve any purpose. 13. Finally it is submitted that the accused being the only bread earner of the family comprising of a widowed mother a wife and two minor children coupled with the fact that there is no question of intimidation of the victim as he is no longer residing at Diengpasoh therefore prayer for grant of bail with any conditions to be imposed by this Court is hereby made. It is further submitted that if enlarged on bail reliable and solvent sureties will be provided who will be none other than the mother and sister of the accused. In support of his case the learned counsel has referred to two cases that is “Ahsan Shah v. State of Madhya Pradesh” LAWS(MPH) 2021 5 2 which is an order dated 03.05.2021 in M.Cr.C No. 9730 2021 and “Gulabbhai Parvatbhai Vadi v. State of Gujarat” LAWS(GJH) 2021 1 4 4 which is an order dated 08.04.2021 in Criminal Misc. Application No. 12121. In these two cases on an application for grant of bail under Section 439 Cr.P.C by the applicant who was accused of committing an offence inter alia under Section 5j(ii) 6 of the POCSO Act the Hon’ble Madhya Pradesh High Court has held that since investigation is completed and charge sheet has been filed and in view of the COVID 19 situation there is no possibility of trial commencing in the near future bail was accordingly granted. In the case of Gulabbhai Parvatbhai Vadi the Hon’ble High Court after hearing the parties relying on the ratio of the case of Sanjay Chandra v. Central Bureau of Investigation: 1 SCC 40 without going into the merits of the case has granted bail to the applicant therein who was charged with offences under Sections 4 and 6 of the POCSO Act amongst others. 15. Mr. N.D. Chullai learned AAG in reply to the submission made by the learned counsel for the Petitioner has at the first instance raised the issue of maintainability of this application inasmuch as it is submitted that the accused has stated that four bail applications were filed before the learned Trial Court and reference was made to the last bail application which was filed under Section 439 Cr.P.C. Now a look at Section 439 would show that concurrent power was conferred upon the Sessions Court as well as on the High Court to consider an application for grant of bail. This being the case the learned AAG has submitted that when an earlier application under Section 439 Cr.P.C. was rejected by a Court of concurrent power can a second application under the same provisions of law be filed before the High Court This according to the learned AAG is not acceptable and as such the Petitioner should have come by way of an appeal and not under Section 439 16. Another point raised by the learned AAG is that the Petitioner has annexed in her application copies of some of the contents of the case dairy including the medical report of the victim which documents are not privy to by the applicant or accused and as such a serious breach has been committed which this Court must take notice of. 17. The learned AAG has submitted that Sub Section 6 of Section 164 A Cr.P.C. provides for forwarding of the medical report to the I O who shall forward the same to the Magistrate referred to in Section 173 Cr.P.C. This is confidential information and as such the fact that the accused or applicant has procured the same when the copies entitled to by him has not yet been supplied to him as provided under Section 207 Cr.P.C. as evident from the averments made by the Petitioner at paragraph 19 of her application herein requires necessary action to be taken in this regard it is further submitted. 18. The learned AAG has also submitted that the victim is a mentally retarded person and the accused taking advantage of this fact has committed the offence and besides being an absconder the accused is not entitled to leniency for grant of bail in this case. The learned AAG has also submitted that Section 439 Cr.P.C was recently amended as per the criminal lawAct 2018 effective from 21st April 2020 by which it was made mandatory for the informant or any other person authorized by the informant to be present at the time of hearing of an application for bail filed by the accused under these provisions. Reference is made to the case of Miss. G. v. State2020 SCC Online Del 629 and emphasis was laid on paragraphs 6 and 24 of the same. It is therefore submitted that before proceeding further with the hearing of this case notice may be issued upon the informant to be present at the time of hearing. 20. In reply the learned counsel for the Petitioner has submitted that firstly on the objection that an application under Section 439 Cr.P.C. cannot be filed before this High Court after exhausting the same privilege before the Sessions Court there is no express provision to bar the Petitioner from approaching this High Court even after failing to get a positive result from the Sessions Court. Therefore the argument of the learned AAG in this regard is not well founded. 21. Secondly on the contention raised that the accused or the applicant has resorted to unfair means by obtaining the copies of the case without being supplied so under Section 207 Cr.P.C the learned counsel has submitted that the copies were not received illegally but were received from the Court by way of certified copies on proper application. It is also submitted that as stated the matter was fixed for supply of copies to the accused but for the prevailing situation the case having been charge sheeted and the I O having sent the said copies under Section 173 Cr.P.C. to the Court in any case the accused is due to receive the same and therefore no illegality has been 22. Having heard the argument advanced by the learned counsels for the parties this Court have given due consideration to the same. What is required to be considered here is whether the accused Shri Sharingstar Sten is entitled to bail under the circumstances 23. Before answering this question the twin objections raised by the learned AAG may be taken up first as the issue of maintainability is involved. The first objection is that since the accused had approached the Sessions Court under Section 439 Cr.P.C. therefore he cannot approach the High Court under the same provision except by way of appeal. In the case of Sri Kwmta Gwra Brahma v. State of Assam the Hon’ble Gauhati High Court vide Judgment and Order dated 10.04.2015 passed in B.A. 3024 2014 dealing with the issue of law as to: “(i) Whether it is essential that a person accused before approaching the High Court for grant of anticipatory bail u s 438 of the CrPC and grant of bail u s 439 of the CrPC should exhaust his remedies before the Sessions Court and then file application before the High Court” has elaborately dwell upon the subject and for the limited purpose relevant to the issue in question held as under: “14) After carefully analysing the ratio laid down in the above decisions the salient aspects that emerges is to the effect that ii) In so far as the provisions of section 439 are concerned no option to choose the forum is given to the person accused unlike under section 438. When the inferior court and the superior court are invested with concurrent jurisdiction normally a person accused has to exhaust his remedy before the inferior court. If the person accused is aggrieved by the order of the inferior court then he can approach the High Court in which event the High Court will have the benefit of considering the reasons and opinion given by the inferior court… iii)….In the event of rejection of bail application by the Sessions Court the persons accused can still move the High Court for grant of anticipatory bail u s 438 of the CrPC or bail u s 439 of the CrPC as the case may be… 19) In view of the reasons and discussions made above it is held that normally a person accused should exhaust his remedy u s 438 or 439 of the CrPC before the Sessions Judge before making an application before the High Court u s 438 or 439 of the CrPC…..” In the opinion of this Court the above has clarified the position that notwithstanding the fact that the accused or applicant having moved the Sessions Court with an application under section 439 Cr.P.C and the same was rejected he can still move the High Court for grant of bail under the same provision. This instant application is therefore maintainable. 26. As to the contention that the Petitioner herein has committed an illegality in obtaining copies of the contents of the case dairy and charge sheet including the medical report of the victim which is a confidential document not meant for the eyes of the accused or applicant the learned counsel for the Petitioner has submitted that the stage of the case before the learned Special Judge is for supply of copies to the accused person. However for the last eight dates the same was not yet supplied and for the purpose of this bail application the applicant has to apply for certified copy from the Court which was duly given and as such no illegality was committed as the papers are already part of the case record. It is further submitted that in any case the accused ought to have been given the said papers and as such applying for certified copies of the same is not a contravention of the provisions of the Cr.P.C. 27. A look at Section 164 A Sub Section 6 would show that the I O on receipt of the medical report has to forward the same to the Magistrate as part of the documents referred to in clauseof Sub Section 5 of Section 173 Cr.P.C. Again what clause of Sub Section 5 of Section 173 generally speaks of is that it is incumbent upon the I O to forward to the Magistrate the report including the said medical report on which the prosecution proposes to rely on during the trial. It is well settled that the accused cannot be caught by surprise at the trial as far as evidence against him is sought to be presented in court. This then mean only one thing that copies of all relevant papers has to be supplied to him including the said medical report. Therefore there is nothing confidential about the said medical report as adverted to by the learned AAG. 28. That the matter before the Trial Court was for supply of copies and the same was not yet supplied inspite of several dates being fixed for the same the accused therefore cannot be faulted if he requires the same and has received the same by way of certified copy which incidentally was allowed by the Court and which invariably the Prosecution is duty bound to supply to him. Therefore I find no force in the contention of the learned AAG in this regard the same is hereby rejected. 29. Before referring to the citations relied upon by the learned counsel for the Petitioner in support of his submission it would be beneficial to refer to the basic principles governing bail jurisdiction. In a catena of judgments the Hon’ble Supreme Court as well as the High Courts have maintained that grant or refusal of bail would basically depend on the particular facts and circumstances of a case however the general guidelines that have been followed in this regard would be that a competent court of jurisdiction before coming to any decision would be well advised to consider inter alia the The nature and gravity of the offence and the nature of supporting evidence Prima facie satisfaction of the Court that the accused has committed the offence Possibility of the accused absconding iv) Reasonable apprehension of witnesses and evidence being tampered with. 30. This Court is also mindful of the fact that there can be no unlawful or unnecessary restriction on personal liberty of an individual including the accused as guaranteed by Article 21 of the Constitution of India. Therefore every prayer for grant of bail is given due diligence. 31. On perusal of the citations relied upon by the learned counsel for the Petitioner what is noticed is that the accused persons in those cases were enlarged on bail on particular facts and circumstances which were not elaborated in the said judgments though the offence involved are similar to the offence alleged to have been committed by the accused herein. This being the case this Court respectfully decline to apply the ratio of the cited cases to the case in hand under the peculiar facts and circumstances of this instant 32. On perusal of the records particularly the charge sheet and the statement of the victim and witnesses in the case against the accused Shri. Sharingstar Sten this Court is convinced that prima facie an offence of sexual assault has been committed though it is a matter of evidence and the onus is on the prosecution to prove the same at the trial for which the opinion expressed by this Court shall not influenced the learned Trial Court in the process of trial. 33. The conduct of the accused in absconding from the authorities has also caused considerable delay in the trial and as such keeping in mind the adherence to speedy trial at this juncture it would not be prudent to enlarge the accused on bail. In this connection the Trial Court is directed to proceed with the trial expeditiously. 34. On the contention of the learned AAG that the informant is required to be present at the time of hearing of the bail application it is noticed that the Hon’ble Delhi High Court has brought to the fore the said amendment to Section 439 Cr.P.C vis à vis the ‘Practice Directions’ meant for the guidance of the Courts under the Delhi High Court which is not applicable in this High Court. It is also noticed that the said amended provisionrequiring the presence of the informant at the time of hearing is obligatory in nature and not mandatory. Therefore in the absence of specific rules in this regard this Court is not call upon to strictly enforce the same. In view of the above it is the considered opinion of this Court that this application is devoid of merit and the same is hereby rejected. 37. Registry is directed to send back the case record to the Trial Court. 38. Application disposed of. No cost. Judge “D. Nary PS”

Amendment to the gratuity act is NOT retrospective: Supreme Court of India

Pension is payable periodically as long as the pensioner is alive whereas the gratuity is ordinarily paid only once on retirement. Therefore, any amendment with respect to the cutoff date cannot be treated retrospective. This was held by the two-judge bench comprising of Hon’ble Justice Hemant Gupta and Hon’ble Justice A. S. Bopanna in the case of Krishna Gopal Tiwari and Anr. Vs. Union of India and Ors. [CIVIL APPEAL NO. 4744 OF 2021] on the 13th of August before the Hon’ble Supreme Court of India at New Delhi. The brief facts of the case are, the appellants are employees of Coal India Limited. The Government of India approved enhancement of gratuity to the executives and Non-Unionized Supervisors of Central Sector Enterprises such as the Coal India Limited where the appellants were employed. The ceiling of the gratuity was raised to Rs.10 lakhs w.e.f. 1.1.2007 in terms of office memorandum of Government of India dated 26.11.2008. The appellants were paid such gratuity in terms of such office memorandum. However, later on, the Payment of Gratuity Act was amended. In terms of sub-section (2) of Section 1 of the Amending Act, a notification was issued by the Government of India on 24.5.2010 appointing the said date as the date on which the Amending Act came into force. The grievance of the appellants is that the tax has been deducted at source when the gratuity was paid to the appellants before the commencement of the Amending Act. The appellants have thus challenged the date of commencement as 24.5.2010 but asserted that it should be made effective from 1.1.2007 and consequently the appellants would not be liable for deduction of tax on the gratuity amount. The challenge in the present appeal is to an order passed by the High Court of Jharkhand on 27.7.2016 whereby the claim of the appellants to declare the applicability of Payment of Gratuity (Amendment) Act, 2010 from 1.1.2007 was declined. The counsel for the appellant submitted that, the amendment of the Gratuity Act is to grant liberalized benefits. Therefore, it would be retrospective. It was also submitted that, the cut-off date as 24.5.2010 has created two categories of employees, first who have attained the age of superannuation before the said date and second who have superannuated on or after 24.5.2010. Such classification is illegal and arbitrary in nature. The counsel for the respondent submitted that, the cut-off date so as to grant benefit of pension to the retirees after the cut-off date and to deny the retirees pension before the cut-off date is arbitrary. It was thus argued that benefit of gratuity stands on different footing, then recurring right of payment of pension. The learned judges heard the submissions of both the parties and relied on the judgement in State Government Pensioners’ Association & Ors. v. State of Andhra Pradesh (1986) 3 SCC 501, wherein, “Similar is the case with regard to gratuity which has already been paid to the petitioners on the then prevailing basis as it obtained at the time of their respective dates of retirement. The amount got crystallized on the date of retirement on the basis of the salary drawn by him on the date of retirement. And it was already paid to them on that footing. The transaction is completed and closed. There is no scope for upward or downward revision in the context of upward or downward revision of the formula evolved later on in future unless the provision in this behalf expressly so provides retrospectively.”

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4744 OF 2021 ARISING OUT OF SLPNO. 10622 OF 2017 KRISHNA GOPAL TIWARY & ANR UNION OF INDIA & ORS JUDGMENT HEMANT GUPTA J The challenge in the present appeal is to an order passed by the High Court of Jharkhand on 27.7.2016 whereby the claim of the appellants to declare the applicability of Payment of Gratuity Amendment) Act 20101 from 1.1.2007 was declined. The appellants are employees of Coal India Limited. The Government of India approved enhancement of gratuity to the executives and Non Unionized Supervisors of Central Sector Enterprises such as the Coal India Limited where the appellants were employed. The ceiling of the gratuity was raised to Rs.10 lakhs w.e.f. 1.1.2007 in terms of office memorandum of Government of India dated 26.11.2008 For short the ‘Amending Act’ The appellants were paid such gratuity in terms of such office memorandum. However later on the Payment of Gratuity Act 2 was amended by Central Act No. 110 which received the assent of the Hon’ble President on 17.5.2010. The relevant provisions of the Amending Act read as under “1(1). This Act may be called the payment of Gratuity Amendment) Act 2010 2) It shall come into force on such date as the Central Government may by notification in the Official Gazette 2.In Section 4 of the Payment of Gratuity Act 1972 in sub section for the words “three lakhs and fifty thousand Rupees” the words “ten lakh rupees” shall be substituted.” In terms of sub section of Section 1 of the Amending Act a notification was issued by the Government of India on 24.5.2010 appointing the said date as the date on which the Amending Act came into force. The grievance of the appellants is that the tax has been deducted at source when the gratuity was paid to the appellants before the commencement of the Amending Act. The appellants have thus challenged the date of commencement as 24.5.2010 but asserted that it should be made effective from 1.1.2007 and consequently the appellants would not be liable for deduction of tax on the gratuity amount. Certain provisions of the Gratuity Act as it existed prior to For short the ‘Gratuity Act’ amendment by Central Act No. 118 and that of Income Tax Act 19613 would be necessary to be extracted “The Payment of Gratuity Act 1972 4. Payment of Gratuity Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years Provided that the completion of continuous service of five years shall not be necessary where the termination of the employment of any employee is due to death or 3) The amount of gratuity payable to an employee shall not exceed ten lakh rupees 5) Nothing in this section shall affect the right of an employee to receive better terms of gratuity under any award or agreement or contract with the employer.” The Income Tax Act 1961 10. Incomes not included in total income. In computing the total income of a previous year of any person any income falling within any of the following clauses shall not be included 1. xx 10to the extent it does not exceed an amount calculated in accordance with the provisions of sub sectionsandof section 4 of that Act ” Learned counsel for the appellants argued that the amendment of the Gratuity Act is to grant liberalised benefits. Therefore it would For short the ‘Income Tax Act’ be retrospective. Reliance is placed upon judgment of this Court in Commissioner of Income TaxI New Delhi v. Vatika Township Private Limited4. The aforesaid case is of insertion of proviso to Section 113 of the Income Tax Act providing that tax chargeable under the said Section shall be increased by a surcharge and shall be applicable in the assessment year relevant to the previous year in which the search is initiated under Section 132 of the said Act. It was the said provision which came up for consideration before this Court. This Court held as under “31. In such cases retrospectivity is attached to benefit the persons in contradistinction to the provision imposing some burden or liability where the presumption attaches towards prospectivity. In the instant case the proviso added to Section 113 of the Act is not beneficial to the assessee. On the contrary it is a provision which is onerous to the assessee. Therefore in a case like this we have to proceed with the normal rule of presumption against retrospective operation. Thus the rule against retrospective operation is a fundamental rule of law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act or arises by necessary and distinct implication. Dogmatically framed the rule is no more than a presumption and thus could be displaced by outweighing factors.” Learned counsel for the appellants also referred to a judgment of this Court in D.S. Nakara & Ors. v. Union of India5 to contend that the cut off date as 24.5.2010 has created two categories of employees first who have attained the age of superannuation before the said date and second who have superannuated on or after 24.5.2010. Such classification is illegal and arbitrary in 1 SCC 1 1 SCC 305 On the other hand Mr. Vikramjit Banerjee learned counsel for the Union has argued that D.S. Nakara’s case deals with pensioners who get recurring benefit every month whereas the gratuity is one time payment. This Court has held that the cut off date so as to grant benefit of pension to the retirees after the cut off date and to deny the retirees pension before the cut off date is arbitrary. It was thus argued that benefit of gratuity stands on different footing then recurring right of payment of pension. This Court held as “38. What then is the purpose in prescribing the specified date vertically dividing the pensioners between those who retired prior to the specified date and those who retire subsequent to that date That poses the further question why was the pension scheme liberalised What necessitated liberalisation of the pension scheme 42. If it appears to be undisputable as it does to us that the pensioners for the purpose of pension benefits form a class would its upward revision permit a homogeneous class to be divided by arbitrarily fixing an eligibility criteria unrelated to purpose of revision and would such classification be founded on some rational principle The classification has to be based as is well settled on some rational principle and the rational principle must have nexus to the objects sought to be achieved. We have set out the objects underlying the payment of pension. If the State considered it necessary to liberalise the pension scheme we find no rational principle behind it for granting these benefits only to those who retired subsequent to that date simultaneously denying the same to those who retired prior to that date…” The aforesaid judgment has come up for consideration before this Court in a judgment reported as State Government Pensioners’ Association & Ors. v. State of Andhra Pradesh6 wherein the payment of gratuity from a specified date of retirement was held to be not unconstitutional. This Court held as under “2. … Similar is the case with regard to gratuity which has already been paid to the petitioners on the then prevailing basis as it obtained at the time of their respective dates of retirement. The amount got crystallized on the date of retirement on the basis of the salary drawn by him on the date of retirement. And it was already paid to them on that footing. The transaction is completed and closed. There is no scope for upward or downward revision in the context of upward or downward revision of the formula evolved later on in future unless the provision in this behalf expressly so provides retrospectively 3 SCC 501 : 1986 SCC L&S) 676] and to the decision in N.L. Abhyankar case3 SCC 125 : 1984 SCC 486] has been brought to out notice. The observations made in these two cases are binding on us insofar as the applicability of the rule in D.S. Nakara case1 SCC 305 : 1983 SCC2 SCR 165 : 1983 UPSC 263] to the liability of the Government to pay gratuity on retirement. We 3 SCC 501 2 SCC 580 respectfully agree with the views expressed in those decisions. It is also not shown that the Government notification in question either expressly or by necessary implication directs that those who had retired prior to 1 1 1973 would be entitled to any additional amount by way of gratuity. The Tribunal was therefore in error in upholding that gratuity was payable in accordance with the Government Notification No. 33 12 73 AISC(ii) dated 24 1 1975 to all those members of the All India Services who had retired prior to 1 1 1973.” Sub sectionof Section 4 of the Gratuity Act protects the right of an employee to receive better terms of gratuity under any award or contract with the employer. The gratuity paid to the appellants on the strength of office memorandum dated 26.11.2008 would fall in the said sub section. However what is exempt from the Income Tax Act is the amount of gratuity received under the Gratuity Act to the extent it does not exceed an amount calculated in accordance with the provisions of sub sections and of Section 4 of the Gratuity Act. The Gratuity Act contemplated rupees ten lakhs as the amount of gratuity only from 24.5.2010. Such gratuity is the amount payable only once. Thus the cut off date cannot be said to be illegal it being one time payment. Therefore such amendment in the Gratuity Act cannot be treated to be retrospective. Therefore the provisions of the statute cannot be said to be retrospective. In a judgment of this Court reported as Sri Vijayalakshmi Rice Mills New Contractors Co. & Ors. v. State of Andhra Pradesh8 the new rate of supply of rice was made effective on 23.3.1964. The question arose was as to whether the rice supplied earlier would have the benefit of beneficial provision as contained in the later notification dated 23.3.1964. This Court held that price as was prevalent on the date of sale alone would be payable and not the higher price introduced by amendment. It was held as “6. The aforesaid sales in the instant cases having been made by the appellants before the coming into force of the Rice Price Control Co. Ltd. v. CST4 SCC 98 : 1974 SCC226 2 SCR 879] Harishankar Bagla v. State of M.P.1 SCR 380 388 : AIR 1954 SC 465] ]” 3 SCC 37 1991 Supp.SCC 81 In a recent judgment reported as Himachal Road Transport Corporation & Anr. v. Himachal Road Transport Corporation Retired Employees Union10 in the case of payment of increased quantum of death cum retirement gratuity it was held that the cut off date cannot be said to be arbitrary which was fixed keeping in view financial constraints. This Court held as under “18. Though there are long line of cases where validity of fixation of cut off date is considered by this Court we confine and refer to the case law which is relevant to the facts of the case on hand. In State of Punjab v. Amar Nath Goyal6 SCC 754 : 2005 SCC910] while examining the validity of cut off date fixed for grant of benefit of increased quantum of death cum retirement gratuity this Court has held that the financial constraint pleaded by the Government was a valid ground for fixation of cut off date and such fixation was not arbitrary irrational or violative of Article 14 of the In view of the above we find that the date of commencement fixed by the Executive in exercise of power delegated by the Amending Act cannot be treated to be retrospective as the benefit of higher gratuity is one time available to the employees only after the commencement of the Amending Act. The benefit paid to the appellants under the office memorandum is not entitled to exemption in view of specific language of Section 10(10)(ii) of the Income Tax Act. 10 4 SCC 502 18. Consequently we do not find any error in the order passed by the High Court. The appeal is dismissed. NEW DELHI AUGUST 13 2021

Opportunity to the parties to place on record all essential documents and materials, if required :Patna High Court

Opportunity shall be granted to the parties to place on record all essential documents and materials, if so required and desired 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 Antu Manjhi Vs. State Of Bihar (Civil Writ Jurisdiction Case No.5902 of 2020). Petitioner prayed to issue an appropriate order/s, direction/s writ, preferably in the nature of certiorari, for the quashing of the order passed by the respondent under the Bihar Targeted Public Distribution (Control) order 2016 Respondent has dismissed the petitioner’s Fair Price Shop License, invoking Clauses 24 and 26 of the said (Control)Order, 2016, as well as provisions of the National Food Security Act, 2013, and the Prevention of Block Marketing and Maintenance of Supplies of Essential Commodities Act, 1980, as violations. Petitioner further requested that the respondent restore the petitioner’s license, notwithstanding the fact that the petitioner had not been convicted. The petitioner’s appeal is pending before the District Magistrate in Gaya, and learned counsel for the petitioner argues that if a directive is made for its prompt disposition, the petitioner will be satisfied. According to learned counsel for the respondents, as this appeal is for the year 2019, it must be considered and decided within three months of the petitioner’s presence before the Appellate Authority, along with a copy of this ruling. As a result, the Statement has been accepted and is now part of the record alongside the petition. The parties will be given the opportunity to record all relevant documents and materials if they so wish, and Petitioner, through skilled counsel, agrees to fully cooperate and not take any unnecessary adjournments. Within three months of the petitioner’s appearance before the Appellate Authority, the Appellate Authority shall decide the appeal on the merits in accordance with natural justice principles, and the Appellate Authority shall issue a reasoned and spoken order. Likewise, the parties are free to pursue any other legal remedies accessible to them, and when a petitioner pursues such legal remedies before the appropriate venue, the matter will be handled in accordance with the law and in a timely manner. Court disposed of the instant petition with Interlocutory Application(s), if any,. The court has not decided on the merits, and all questions remain unresolved. As a result, the petitioner retains the right to challenge the ruling if the necessity arises later.

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.59020 Antu Manjhi S o Moali Manjhi resident of Village Basari P.S. Bodh Gaya District Gaya The State of Bihar through the Principal Secretary Department of Food Commerce and Civil Supplies Bihar Patna The Divisional Commissioner Magadh Division Gaya ... Petitioner s The District Magistrate Gaya The Sub Divisional Officer Sadar Gaya The District Supply Officer Gaya The Block Supply Officer Bodh Gaya Gaya ... Respondent s For the Petitioner s For the Respondent s Mr. Sudhir Kumar Sinha Advocate Mr. S. Raza Ahmad AAG 5 Mr. Alok Ranjan AC to AAG 5 CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR Per: HONOURABLE THE CHIEF JUSTICE Date : 20 12 2021 Heard learned counsel for the parties. Petitioner has prayed for the following relief(s): Patna High Court CWJC No.59020 dt.20 12 2021 Learned counsel for the petitioner states that petitioner’s appeal is pending before the District Magistrate Gaya and petitioner shall be content if a direction is issued for expeditious disposal of the same. Learned counsel for the respondents states that Patna High Court CWJC No.59020 dt.20 12 2021 since the appeal is of the year 2019 the same shall be considered and decided within a period of three months from the date of appearance of the petitioner before the Appellate Authority along with a copy of this order. Statement accepted and taken on record. As such petition stands disposed of in the following terms: a) Petitioner shall make himself available before Respondent No. 3 namely the District Magistrate Gaya on 10th of January 2022 b) Opportunity shall be granted to the parties to place on record all essential documents and materials if so required and desired c) Petitioner through learned counsel undertakes to fully cooperate and not take unnecessary adjournment d) The Appellate Authority shall decide the appeal on merits in compliance of the principles of natural justice e) The Appellate Authority shall pass a reasoned and speaking order within a period of three months from the date of appearance of the petitioner before the Appellate Authority f) Copy of the order passed by the Appellate Patna High Court CWJC No.59020 dt.20 12 2021 Authority shall be supplied to the parties g) Equally liberty reserved to the parties to take recourse to such other remedies as are otherwise available in accordance with law h) We are hopeful that as and when petitioner takes recourse to such remedies as are otherwise available in law before the appropriate forum the same shall be dealt with in accordance with law and with reasonable dispatch i) We have not expressed any opinion on merits and all issues are left open Liberty reserved to the petitioner to assail the order should the need so arise subsequently. The instant petition sands disposed of in the Interlocutory Application(s) if any stands disposed aforesaid terms. (S. Kumar J

The applicability of anticipatory bail under Section 438 Cr.Pc to minors in confrontation with the law under the JJ Act is not expressly barred.: Gujarat High Court

There is no expressed bar of application of Section 438 of the Code to the children in conflict with law covered by the Act, 2015 and in absence of expressed bar of application of Section 438 of the Code, there is no reason to imply such bar more particularly in the facts of the present case where the juvenile applicant is not even named as an accused and has raised an apprehension for being impleaded on extraneous consideration. The judgment was passed by The High Court of Gujarat in the case of Kureshi Irfan Hasambhai v. State of Gujarat [R/Criminal Misc. Application No.  6978 of 2021] by a Single Bench consisting of Hon’ble Justice A.Y. Kogje. The issue before the Court was whether an application for anticipatory bail under Section 438 of the Code of Criminal Procedure can be maintained by the child in conflict with law more particularly considering the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015. Learned Counsel for the applicant submitted that the applicant is not involved in the offence and therefore also, the complainant has not named him in the offence however apprehension of arrest has arisen due to a previous incident which occurred between the accused regarding pet dog for which in the present offence accused and other co-accused named in the FIR are likely to name the present applicant as an accused in the offence during the investigation; thereby falsely implicating the applicant in the offence. Learned Counsel for the respondent, it was stated that the language of Section 438 of the Code which is required to be read with Sections 10 and 12 of the Act, 2015. Furthermore, it was argued that for maintaining application under Section 438 of the Code there has to be an apprehension of the arrest of a person, whereas provisions of Section 10 of the Act, 2015 provides for in no case, a child alleged to conflict with the law shall be placed in a police lockup or lodged in jail and as in case of a child in conflict with the law there is a complete bar for placing the child in a police lockup or to be lodged in jail. While allowing the application the court opined that “any child in conflict with the law, a necessary procedure to be adopted as prescribed under Section 12 of the Act, 2015 and therefore, even where the application under Section 438 of the Code is decided in any which way, the protection of Section 12 of the Act, 2015 will always be available.”

on : Fri Jun 11 22:46:59 IST 2021 R CR.MA 6978 2021 ORDER DATED: 09 06 2021IN THE HIGH COURT OF GUJARAT AT AHMEDABADR CRIMINAL MISC.APPLICATION NO. 69721================================================================KURESHI IRFAN HASAMBHAI THRO KURESHI KALUBHAI HASAMBHAI VersusSTATE OF GUJARAT ===============================================================Appearance:MR. R.C.JANI ADVOCATE with KASHYAP R JANI(8287) for the Applicant(s)No. 1 and MR. VISHRUT R JANI(6696) for the Applicant(s) No. 1MR. D.M.DEVNANI APP for the Respondent(s) No. 1===============================================================CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE Date : 09 06 2021 ORAL ORDER[1]RULE. Learned APP waives service of Rule on behalf of therespondent State.[2]This is an application by the applicant under Section 438 ofthe Code of Criminal Procedure 1973 for anticipatory bail in theevent of his arrest in connection with FIR registered at C.R.No.111920502100921 before Sanand Police Station Ahmedabadfor the offence under Sections 143 147 148 149 152 153 224 225 186 332 353 395 397 427 and 504 ofthe Indian Penal Code under Section 135 of the GP Act and underSection 12 of the Gambling Act.[3]The application is filed through the brother of the proposedaccused who is aged 17 years and apprehends that he may befalsely involved in the aforesaid offence on account of the previousenmity with the accused No.1 though applicant is not named as anaccused in the FIR.can be maintained by child inconflict with law more particularly considering the provisions of theJuvenile JusticeAct 2015at Mirzapur however on account ofmaintainability the application was not entertained.to indicate that the High Court had exercised the discretiongranting pre arrest bail. Reliance is also placed upon the decision inthe case of Kumari Shivani and another v s. State of M.P. reported in 2009 SC OnLine MP 4803 wherein the anticipatorybail to the minor was granted. Reliance is also placed upon thedecision of Jharkhand High Court in the case of Birbal Munda andothers v s. State of Jharkhand reported in 2019 SCC OnLine1794. It is submitted that the Jharkhand High Court had taken intoconsideration all the aspects including relevant definitions andprovisions of Juvenile Justice Act and concluded that the applicationfor anticipatory bail is maintainable.holding application under Section 438 of theCode is not maintainable is justified.No.4316. Learned APPhas also relied upon the decision in the case of Vinayak PandeyPage 3 of 13 on : Fri Jun 11 22:46:59 IST 2021 R CR.MA 6978 2021 ORDER DATED: 09 06 2021v s. State of Madhya Pradesh in M.Cr.C.No.224807.which came to bedismissed by holding that the application for anticipatory bail underSection 438 of the Code is not maintainable. While doing so findingis given in para 5 by relying upon the decision in the case ofSatyendra Sharma v s. State of Madhya Pradesh reported in2014(2) MPLJ374 where according to the Sessions Courtthe issue was dealt with regarding maintainability of bail of ajuvenile and such application cannot be entertained by the HighCourt or Court of Sessions by applying the provisions containedunder Section 6(2) of the Act 2015. Section 6(2) of the Act providesplacement of persons who committed and offence when personPage 4 of 13 on : Fri Jun 11 22:46:59 IST 2021 R CR.MA 6978 2021 ORDER DATED: 09 06 2021below the age of 18 years. Sub Section provides for when suchperson is not released on bail by the Board shall be placed in a placeof safety during the process of inquiry. However in the ordernothing is discussed as to in what manner Section 6(2) of the Act 2015 is attracted. It appears that the judgment in the case ofSatyendra Sharmawas pronounced when the JuvenileJusticeAct 2000was prevailing and at that time Section 6(2) of the Act 2000 provides for the powers conferred on the Board by or underthis Act was also exercised by High Court and Court of Sessionswhen the proceedings come before them in appeal revision orotherwise. However the Act 2000 is now substituted by the Act 2015 and under Section 111 of the Act 2015 the Act 2000 standsrepealed. This aspect appears to have escaped the attention of theSessions Court while dealing with the present case.The seizing or taking hold of aman the act of arresting or seizing under process of law arrest the apprehension of criminals. “Apprehension” may include detention.”However for the purpose of this case the word“Apprehend” is to mean “seize” or “Arrest”.The word “arrest” though not defined in Criminal ProcedureCode purport could be gathered from Chapter 5 of CRPC. The word‘arrest” in common parlance and as defined in various dictionarieswould mean to deprive a person of his personal liberty to goanywhere he pleases. The word “arrest” in legal sense refers to aprocedure connected with an offence to take into custody of anotherperson under an authority of law for the purpose of holding ordetaining him to answer a criminal charge or preventing commissionof offence. The manner and method of arrest is also provided forunder Chapter 5 of CRPC. Section 438 of the Code opens with thephrase “when any person has reason to believe that he may bearrested on accusation of having committed non bailableoffence….”of the Act 2015 which reads as under: “Section 1(4) Notwithstanding anything contained in any otherlaw for the time being in force the provisions of this Act shallapply to all members concerning children in need of care andprotection and children in conflict with law including3(ii)and 3(viii) which read as under: “3(i) Principle of presumption of innocence: Any childshall be presumed to be an innocent of any mala fide orcriminal intent upto the age of eighteen years.3(ii)principle of dignity and worth: All human beingsshall be treated with equal dignity and rights.3(viii) Principle of non stigmatising semantics”Adversarial or accusatory words are not be used in theprocesses pertaining to a child.”[16]Section 1(4) of the Act 2015 though begin with non obstanteclause provides for application of Juvenile Justice Act to all mattersconcerning children in conflict with law. However thereby theobject of the Act is to provide something more that is alreadyPage 8 of 13 on : Fri Jun 11 22:46:59 IST 2021 R CR.MA 6978 2021 ORDER DATED: 09 06 2021provided for in the ordinary law in the present case provided underSection 438 of the Code. The Act which is separately provided forthe children is to Act in the benefit of the children and cannot beunderstood to curtail the rights which are otherwise ordinarilyavailable to the individuals.Act 1989 which read asunder: “18. Section 438 of the Code not to apply to personscommitting an offence under the Act.—Nothing in section438 of the Code shall apply in relation to any case involvingthe arrest of any person on an accusation of havingcommitted an offence under this Act”[18]Section 17(2) of the Gujarat Protection of Interest ofDepositorsAct 2003 reads as under: “17(2) The provisions of the Code of Criminal Procedure 1973except section 438 thereof shall so far asmay be apply to the proceedings before a Designated Courtand for the purposes of the said provisions a DesignatedCourt shall be deemed to be a Magistrate.”[19]Section 20(3) of the Gujarat Control of Terrorism andOrganized Crime Act 2015 reads as under: “20(3) Nothing in section 438 of the Code shall apply inrelation to any case involving the arrest of any personaccused of having committed an offence punishable underthis Act.”[20]Considering the aforesaid sets of provisions where there isexpressed bar of application of Section 438 of the Code toPage 9 of 13 on : Fri Jun 11 22:46:59 IST 2021 R CR.MA 6978 2021 ORDER DATED: 09 06 2021aforementioned Special Acts this Court is of the opinion that thereis no expressed bar of application of Section 438 of the Code to thechildren in conflict with law covered by the Act 2015 and in absenceof expressed bar of application of Section 438 of the Code there isno reason to imply such bar more particularly in the facts of thepresent case where the applicant who is juvenile is not even namedas an accused and has raised a apprehension for being impleadedon extraneous consideration.referred toSections 6 and 12 of the Act 2000. Relevant paras 8 and 9 read asunder: “8. A conjoint reading of Sections 6 and 12 of the Act wouldreveal that to deal with all the proceedings including bail etc in respect of juvenile a Juvenile Board is the appropriateauthority and it has been constituted exclusively for thispurpose and no Court either Sessions Court or High Court hasjurisdiction to deal with the proceedings pertaining to ajuvenile. Therefore it is clear that the bail application of ajuvenile can be entertained by the Board only when he isarrested or detained or appears or is brought before theBoard otherwise the application cannot be entertained. If thejuvenile is arrested or detained or appears or is brought beforethe Board then certainly bail application will be filed underSection 12 and the same has to be decided by the Board only but not by the High Court or Court of Sessions. However Section 52 of the Act gives right to a juvenile who is accusedof a bailable or non bailable offence if he has been refusedbail to file an appeal under Section 52 of the Act within 30days from the date of such order or after the expiry of the saidperiod if prevented by sufficient cause to prefer an appealwithin time to the Court of Sessions and in case the appealfails he can file a revision against the appellate order beforethe High Court in accordance with Section 53 of the Act.Therefore the Act specifically envisages that the powersconferred on the Board by or under this Act can be exercisedby the High Court and the Court of Sessions only when theproceedings comes before them in appeal revision orPage 10 of 13 on : Fri Jun 11 22:46:59 IST 2021 R CR.MA 6978 2021 ORDER DATED: 09 06 2021otherwise.9.Such being the legal position if any bail application filedby a juvenile is entertained by the High Court and rejected certainly the juvenile would be left with no option since hewould have been deprived of the right of appeal before theCourt of Sessions and revision before the High Court. In fact no provisions of the Act or in the Code of Criminal Procedureenables the juvenile to move an application for anticipatorybail either before the Court of Sessions or High Court or evenbefore the Board which has been exclusively constituted forthe purpose of dealing with the proceedings pertaining to ajuvenile.”[22]The aforesaid view of the Madurai Bench of Madras High Courtconsiders a point that in case of rejection of any bail application bythe juvenile by the High Court would render the juvenile remedy less. In this regard it is pertinent to observe that for any child inconflict with law necessary procedure to be adopted as prescribedunder Section 12 of the Act 2015 and therefore even where theapplication under Section 438 of the Code is decided in any whichway the protection of Section 12 of the Act 2015 will always beavailable.The question with regards to fruitfulness to invoke Section438 of the Code for the child in conflict with law may arise in otherwords even of invoking Section 438 of the Code no useful purposewill be served as the child in conflict with law have to undergo theprocess of Section 12 of the Act 2015. The parameters of practicalusage and or application of parameters cannot lead to inferring ofbar of application of a provision Section 438 of the Code in thepresent case.Moreover considering the Section 1(4) of the Act 2015 it isclear to the extent that it does not exclude the application of otherActs CRPC in the present case and therefore this Court in respectfuldisagreement with the view expressed by the Madurai Bench ofMadras High Court in case of Suriya v s. State of Tamilnadu(Supra).Page 11 of 13 on : Fri Jun 11 22:46:59 IST 2021 R CR.MA 6978 2021 ORDER DATED: 09 06 2021[23]After considering the judgments of various High Courts theCourt held in para 12 as under: “12. In view of the above discussion I am of the consideredview that this petition filed under Section 482 Cr.P.C. forconsideration of the bail application of the petitioner who isadmittedly a juvenile is not maintainable and it is liable to bedismissed.”[24]It would be appropriate to mention here that the MaduraiBench of the Madras High Court has taken into consideration theconjoint reading of Sections 6 and 12 of the Act 2000 and arrived atsuch conclusion.while reproducing thefinding given by the Division Bench of the Madrash High Court in thecase of K. Vignesh v s. State reported in Criminal Original PetitionNo.223615 holding application filed under Section 438 of theCode is not maintainable in law. The Madras High Court in thesubsequent decision in the case of Kumari Shivanihasreferred to the decision of the Madhya Pradesh High Court in M.Cr.C.No.472918 holding an application for anticipatory bail by thejuvenile is maintainable and has granted anticipatory bail. Moreover the reason for holding the anticipatory bail not maintainable wasthat in any case the Juvenile Justice Act provided for all thesafeguards that the child in conflict with law cannot be arrested forthe reasons stated here in preceding paras.In the result the present application is allowed by directing thatin the event of arrest of the applicant herein in connection with FIRregistered at C.R. No.111920502100921 before SanandPolice Station Ahmedabadthe applicant shall bereleased on bail in conformity with Section 12 of the Act 2015.(a) shall remain present at the concerned Board on14.06.2021 between 11.00 AM and 02.00 PMshall be subjected to the conditions prescribed bythe Board as per the provisions of lawAt the trial the Trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the applicanton bail. Rule is made is made absolute. Direct service is permitted.(A.Y. KOGJE J) SIDDHARTHPage 13 of 13

Reinstating conductors, suspended for indulging in financial frauds and dishonesty is against constitutional values, Kutumb Suraksha Yojna quashed: Bombay High Court

The impugned scheme is unique and novel as it says a complete goodbye to laws and is against the interest of the public at large, especially the youth. The decision of the administrator must be within four corners of the law, and not one which no sensible person could have reasonably arrived at having regard to the principle of reasonableness. MSRTC fails to satisfy the test and standard of reasonableness since the object behind the scheme appears to be not bona fide and instead of a blatant abuse of powers. This remarkable judgment was passed by the Bombay High Court in THE HIGH COURT OF BOMBAY, AURANGABAD BENCH V STATE OF MAHARASHTRA [SUO MOTO PUBLIC INTEREST LITIGATION NO. 01 OF 2017] by Honourable Justice S.V. Gangapurwala and Honourable Justice Shrikant D. Kulkarni. The scheme introduced by the Maharashtra State Road Transport Corporation as “Kutumb Suraksha Yojna” through which, terminated or suspended conductors are sought to be re-appointed under the said scheme, is being challenged in this Suo Moto Public Interest Litigation. Several writ petitions were filed before this Court seeking relaxation of the age restriction made under the notification of the MSRTC from 45 to higher age in order to get benefit of the said scheme “Kutumb Suraksha Yojna”. The said writ petition was placed before the Division Bench of this Court when this Court noticed that the scheme floated by the MSRTC is against the public interest since the employees who were charged or terminated or suspended on account of mis-appropriation of funds sought to be re-appointed under the guise of the scheme. This Court, converted the above said writ petition into Suo Moto Public Interest Litigation to consider the notification in question since it is against the interest of the public at large. The facts leading to this Suo moto PIL are, MSRTC came up with a novel scheme of re-appointment of those conductors who are either suspended or terminated in order to extend financial benefits to the family members of such conductors under the scheme “Kutumb Suraksha Yojna”. In the official circular, it was mentioned that conductors who are dismissed on account of mis-appropriation or any charges of fraud or otherwise, will be re-appointed. The intention in launching such scheme was tried to be canvassed in such a fashion to show that due to the litigation between the MSRTC and the suspended conductors, heavy financial loss is being caused to the Corporation and also it was stated that due to the misdeeds of the conductor their family members are facing financial problems and in order to protect their families, such a scheme is launched in for their benefit. MSRTC took a stand and submitted that the object of the scheme was that the family members should not be punished for the actions of their sole bread earner. Also, another aspect was based on Gandhian philosophy since this scheme provided an opportunity for such conductors to reform themselves by getting a fresh appointment and begin their employment fresh. It was contended by the petitioners that the said scheme clearly amounts to giving price or reward to an employee who has been suspended or dismissed from services on account of mis-appropriation of funds. It is somewhat novel idea tried to be introduced by the MSRTC against the settled provisions of law since the scheme is against the Constitutional provisions. The Division Bench strictly stated, “It is tried to be canvassed before us that for the welfare of the family members of suspended or dismissed conductors of the MSRTC, the impugned scheme is launched. It is by way of rehabilitation of suspended/dismissed conductors and their families. It is for their welfare and to protect their fundamental rights. We are not impressed by such argument.” Labour Legislation is adapted to overcome economic and social challenges at the modern world of work and there are various State and Central Laws which take care of welfare of labors but such schemes could not be against constitutional values. “There cannot be a debate that welfare of the employees is to be protected by the employer. At the same time, whatever policy decision is to be taken, it must be in consonance with the rules and regulations and should be reasonable and not irrational. The decision or the policy should not be against the public interest, which may hamper the generation of employment.” Provisions in the scheme are arbitrary since instead of taking action against the Conductors as per the procedure of discipline and appeals, the Conductors are allowed to be reappointed/reinstated in view of the scheme by recovering the misappropriated amount from them. “Where the MSRTC is dealing with the public, it cannot act arbitrarily at its sweet will. Its action must be in conformity with the standards or norms, which is rational. Justice and fairness and State action are essences of Article 14 of the Constitution of India and State instrumentality like MSRTC should satisfy that requirement.”

on 30 04 2021 on 01 05 01 17 PIL: 1. The scheme attempted to be introduced by the MaharashtraState Road Transport CorporationRespondent No.2 as “Kutumb Suraksha Yojna” wherebyterminated or suspended conductors are sought to be re appointedunder the said scheme is under challenge in the present Suo MotoPublic Interest Litigation.Background of PIL 2.One Mr. Sharad Babrao Pote and others had filed writ petitionNo.100316 before this Court and sought relaxation of the agerestriction made under the notification of the MSRTC from 45 tohigher age in order to get benefit of the said scheme “KutumbSuraksha Yojna”. The said writ petition was placed before the DivisionBench of this Court on 30.06.2017 when this Court noticed that thescheme floated by the MSRTC is against the public interest since theemployees who were charged or terminated or suspended on accountof mis appropriation of funds sought to be re appointed under theguise of the scheme. This Court converted the above said writpetition into Suo Moto Public Interest Litigation to consider the on 30 04 2021 on 01 05 01 17 PIL4 SCC 126.(iii)Jaskaran Singh Brar Vs. State of Punjab reported in 2005SLJ 354.(iv) Sushil Kumar Singhal Vs. Regional Manager Punjab National Bank reported in8 SCC 573. 13.Per contra Mr. Sapkal learned Senior Counsel supported theCircular impugned Scheme. Mr. Sapkal submitted that the PublicInterest Litigation in service matters cannot be entertained. Theimpugned Circular is in between the MSRTC and its employees. There on 30 04 2021 on 01 05 01 17 PILHari Bansh Lal Vs. Sahodar Prasad Mahto and others reported in AIR 2010 SC 351515.We have considered the arguments advanced by Mr.Gangakhedkar the learned amicus curiae and Mr. Sapkal learnedSenior Counsel. 16.The Public interest litigation is a weapon which has to be usedwith great care and caution. It is to be used as an effective weapon inthe armory of law for delivering social justice to the citizens. It shouldbe aimed at redressal of genuine public wrong or public injury andnot publicity oriented or based on personal vendetta. It is the duty ofthe Court to see that a persons approaches the court by way of publicinterest litigation is acting bona fide and not for personal gain orprivate motive or political motivation or other oblique considerations.17.In case of Dr. Duryodhan Sahu Vs. Jitendra Kumar Mishrareported in AIR 1999SC 114 it is ruled by the Hon’ble Supreme Courtthat the Public Interest Litigation should not be entertained involvingservice matters. The same view find place in case of Dattaraj NathujiThaware Vs. Sate of Maharashtra and othersit is held by the Hon’ble Supreme Court that in PublicInterest Litigation involving service matters the Public Interest1 on 30 04 2021 on 01 05 01 17 PILit is held by the Hon’ble Supreme Court that in servicematters the role of the Court is to ensure rule of law and to see thatexecutive acts fairly.20.In case of State of Orrisa Vs. Bimbalkumar Mohanty itis held by the Hon’ble Supreme Court as under:“Normally when an appointing authority or the disciplinaryauthority seeks to suspend an employee pending inquiry orcontemplated inquiry or pending investigation into gravecharges of misconduct or defalcation of funds or seriousacts of omission and commission the order of suspensionwould be passed after taking into consideration the gravityof the misconduct sought to be inquired into or investigatedand the nature of the evidence placed before the appointingauthority and on application of the mind by disciplinaryauthority. Appointing authority or disciplinary authorityshould consider the above aspects and decide whether it isexpedient to keep an employee under suspension pendingaforesaid action. It would not be as an administrativeroutine or an automatic order to suspend an employee. Itshould be on consideration of the gravity of the allegedmisconduct or the nature of the allegations imputed to thedelinquent employee. The Court or the Tribunal mustconsider each case on its own facts and no general lawcould be laid down in that behalf. Suspension is not apunishment but is only one of forbidding or disabling anemployee to discharge the duties of office or post held byhim. In other words it is to refrain him to avail further1 on 30 04 2021 on 01 05 01 17 PILtheallegations of fraud in public employment centrestaged on the"procedure and mechanism" adopted by the State of Punjab in thewholesome selection of Deputy Superintendent of Policefrom"Outstanding Sports Persons" can be a subject matter of publicinterest litigation the legality and propriety of these selections wasraised in writ petition along with the public interest litigation. ThePunjab nd Haryana High Court was pleased to entertain that thosepetitions and issued certain directions to the State of Punjab.1 on 30 04 2021 on 01 05 01 17 PILit is held by the Hon’ble Supreme Court that inService Law conviction of a person in crime involving moralturpitude impeaches his credibility as he has been found to haveindulged in a shameful wicked and base activity such an employeecannot be directed to be reinstated in service. 23.In case of National Association of Blind Vs. Bombay MunicipalCorporation reported in 2020 SCC Online Bom 2032 the DivisionBench of this Court at Principal Seat at Bombay has laid down thefollowing tests after having gone through the various authorities. Thetests to entertain the Public Interest Litigation are as under:“(a) that the PIL petition is not a camouflage to fosterpersonal disputes that behind the beautiful veil of public interest anugly private malice vested interest and or publicityseeking is not lurking that the PIL petition is not intended to besmirch thecharacter of others that the information given in the PIL petition issufficient to show the gravity and seriousness involved and 1 on 30 04 2021 on 01 05 01 17 PILthat the PIL petition is not mischievous seeking toassail an executive action for oblique motives. 24.The Division Bench of this Court while hearing the writ petitionNo.100316prima facie noticed that the schemelaunched by the MSRTC to re appoint the suspended or terminatedconductors under the scheme “Kutumb Suraksha Yojana” is againstthe public interest and directed to initiate Suo Moto Public InterestLitigation to consider notification in question. In that background it isdifficult to accept the argument advanced by the learned SeniorCounsel that the instant Public Interest Litigation relating to servicematter is not maintainable. 25.It is tried to be canvassed before us that for the welfare of thefamily members of suspended or dismissed conductors of the MSRTC the impugned scheme is launched. It is by way of rehabilitation ofsuspended dismissed conductors and their families. It is for theirwelfare and to protect their fundamental rights. We are not impressedby such argument. The MSRTC is run and controlled by the State ofMaharashtra. The Corporation is rendering its services to the public atlarge. The policy decisions taken by the State Government from timeto time are also applicable to the MSRTC.1 on 30 04 2021 on 01 05 01 17 PILThe Suo Moto Public Interest Litigation is hereby allowed.(ii)The impugned scheme known as Kutumb Suraksha Yojana bearing No.25 2016 dated 6.8.2016 is hereby quashed andset aside.(iii)The Registrarto forward copy of this judgment and order to the Managing Director M.S.R.T.C. Mumbai for information and further necessary action.2 on 30 04 2021 on 01 05 01 17 PILand the Secretary High Court Legal Services Sub Committee at Aurangabad shall pay the abovequantified fees to learned Counsel Mr S.S. Gangakhedkar.38.Suo Moto Public Interest Litigation stands disposed of in aboveterms. ( S.V. GANGAPURWALA ) JUDGE JUDGE S.P. Rane39Mr. Gangakhedkar the learned advocate graciously submitsthat the fees be remitted to the Government Medical College andHospital Aurangabad.40.We appreciate the gesture of Mr. Gangakhedkar the learnedadvocate. The said fees be remitted to the Government MedicalCollege and Hospital Aurangabad. SHRIKANT D. KULKARNI ) JUDGE JUDGE S.P. Rane2

Defaults prior to Covid-19 Pandemic cannot be covered under RBI’s guidelines granting relief on repayment of loans: Delhi High Court

RBI guidelines for reliefs to certain debtors for defaults made on loans due to the Covid-19 Pandemic are only applicable to defaults that arose during the Covid-19 Pandemic and not before. The Delhi High Court made the Petitioner liable for defaults of the Respondent that had been made since 2018. The ratio was laid down by the Delhi High Court presided over by J. P.M. Singh in the case of Amit Khaneja & Ors. Vs. IL & FS Financial Services Ltd., [W.P.(C) 3580/2020]. The brief facts of this case are that the Petitioner took multiple loans from IL&FS Financial Services between the years 2006 and 2018. The Petitioner defaulted in repaying the debts and hence his account was declared as a Non-Performing Asset (NPA). The Respondent initiated proceedings against the Petitioner under the SARFESI Act by taking possession of the Petitioner’s assets. There were multiple proceedings under the Debt Recovery Tribunal after which the Petitioner came up with a ‘one-time settlement’ offer in which he agreed to pay Rs. 100 crores, to which the Respondents agreed and directed the Petitioner to pay off the said amount by 27th March 2020 . The Petitioner did not pay off the amount agreed by him as the ‘one-time settlement’ offer and hence in May the respondents revoked the settlement. The Petitioner challenged the revocation of the Respondent in the High Court. The Petitioner submitted that it was due to the unforeseen circumstances that arose due to the Covid-19 Pandemic and he could not sell off his assets. Further, the RBI circular provided relief to all such debtors who defaulted on repayment of their loans. Hence, the Petitioner seeks some time to sell his assets as he is now making efforts to sell of his assets as soon as possible even if they are getting deflated prices for it.

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

The powers of the High Court under Article 227 of the Constitution of India to consider Appeal of the cases decided by the learned Additional Rent Controller (ARC) and the Rent Control Tribunal (RCT): High Court of Delhi

Article 227 determines that every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. The question as to the powers of the High Court under Article 227 of the Constitution of India to consider Appeal of the cases decided by the learned Additional Rent Controller (ARC) and the Rent Control Tribunal (RCT) was examined by High Court of Delhi, consisting of Justice Asha Menon in the matter of Laxmi Devi vs. Inder Dev Sharma & Anr. [CM (M) 320/2021 & CM APPL. 14054/2021] on 29.30.2021. The facts of the case are that the petitioner had filed a suit for eviction against the respondent, under Section 14(1)(a) of the Delhi Rent Control Act, 1958 (DRC) claiming to be the landlord of property in Anand Parbat, Delhi. The learned ARC passed the eviction order. The benefit under Section 14(2) of the DRC Act was denied as the plaintiff had not complied with the order dated 14th July, 2005 passed under Section 15(1) of the DRC Act. Then the plaintiff preferred an appeal which was also dismissed by the learned ARC. Thereafter, an Execution Petition was filed. It was during the pendency of the Execution Petition that the present petitioner preferred objections initially under Section 151 of the Code of Civil Procedure, 1908 followed by additional objections under Section 47 of the CPC read with Section 25 of the DRC Act claiming that she was the lawful, rightful and absolute owner in possession of the suit property and was having an independent right to the same having purchased it from Shri Mohan Lal Goyal s/o Shri Jyoti Ram vide Agreement to Sell. She further claimed that she was in possession of the suit property since then and had also obtained a factory licence for the property from the Municipal Corporation of Delhi (MCD). The learned ARC vide order dated 30th September, 2019 concluded that the petitioner had miserably failed to prove her independent right to the suit property and dismissed the objections. In appeal, the learned RCT, upheld the said findings, again looking into the evidence referred to by the learned ARC and found that the conclusions of the ARC were justified. The learned Counsel for petitioner submitted that both the courts had erred in coming to these conclusions as it was overlooked that there was some previous litigation between Shri Mohan Lal Goyal and the respondent No.1 through the objector, in which certain admissions had been made to the effect that the respondent No.1 was infact a tenant of the said Shri Mohan Lal Goyal. It is Shri Mohan Lal Goyal from whom the petitioner was claiming ownership to the suit property and that inadvertent typographical errors could not have the effect of denying to the petitioner the right to protect her possession in the suit property. It was further submitted that the documents ought to have been considered by the courts below instead of going by the statement made by the petitioner. Thus, it was prayed that the petition be allowed and the possession of the petitioner be protected under Section 25 of the DRC Act, as she was clearly having an independent right to the suit premises. The learned Counsel for the respondent contended that the powers of the High Court under Article 227 of the Constitution of India are limited and the powers of a Court of Appeal could not be arrogated to itself by the Court. Thus, the arguments based solely on the assessment of evidence by the learned ARC and the learned RCT could not be considered by this Court. Furthermore, it was submitted that the documents relied upon by the petitioner had not been proved as per law. There was no chain of title that was mentioned in these documents to establish that Shri Mohan Lal Goyal himself had any right in the suit property, particularly to transfer title. In the circumstances, the concurrent findings of fact by two courts could not be interfered with, particularly in the absence of any perversity disclosed. Hence, it was prayed that the petition be dismissed. The High Court of Delhi held that the scope of inquiry in a petition under Article 227 of the Constitution of India is limited. Thus, the Court, not sitting as an Appellate Court, is precluded from reassessing and revaluating the evidence that has been brought on record by parties. Mere production of the papers without proof of a transfer of title in immovable property i.e. the suit property to the petitioner does not assist the petitioner at all. The Court found no error in the appreciation of evidence by both the courts below nor did their conclusions reflect any perversity or overstepping of jurisdiction. Neither have they ignored vital evidence nor have they considered irrelevant evidence to come to a conclusion that the petitioner has not been able to establish her independent title to the suit property. The petition lacks merit and is accordingly dismissed along with the pending application.

IN THE HIGH COURT OF DELHI AT NEW DELHI Pronounced on: 29th September 2021 CM320 2021 & CM APPL. 14054 2021LAXMI DEVI .....Petitioner Through: Mr. Varun Dhingra and Mr. Hemant Choudhary Advocates. INDER DEV SHARMA & ANR Through: Mr. Rajendra Kumar .....Respondents Jain Advocate for R 1. HON BLE MS. JUSTICE ASHA MENON JUDGMENT The petition has been filed under Article 227 of the Constitution of India against the order dated 15th March 2021 passed by the learned Rent Control Tribunal District West Principal District & Sessions Judge RCT) whereby the appeal filed by the petitioner against the dismissal of her objections to the execution of the order of eviction against the respondent No.2 were dismissed. The facts as are relevant for the disposal of the present petition are that the respondent No.1 had filed a suit for eviction against the respondent No.2 numbered as 53 2008 under Section 14(1)(a) of the Delhi Rent Control Act 1958 claiming to be the landlord of property measuring 55 sq. yards being part of property No.10 13 Gali CM320 2021 No.9 Anand Parbat Delhi. The learned ARC passed the eviction order dated 24th March 2012 and vide subsequent order dated 7th April 2012 the benefit under Section 14(2) of the DRC Act was denied as the respondent No.2 had not complied with the order dated 14th July 2005 passed under Section 15(1) of the DRC Act. The respondent No.2 preferred an appeal being RCT No.28 2012 which was also dismissed by the learned ARCTvide order dated 9th October 2012. Thereafter an Execution Petition No.61934 2016 was filed. It was during the pendency of the Execution Petition that the present petitioner preferred objections initially under Section 151 of the Code of Civil Procedure 1908dated 15th February 2013 followed by additional objections under Section 47 of the CPC read with Section 25 of the DRC Act claiming that she was the lawful rightful and absolute owner in possession of the suit property and was having an independent right to the same having purchased it from Shri Mohan Lal Goyal s o Shri Jyoti Ram vide Agreement to Sell dated 23rd May 2003 Receipt of Payment Possession Letter registered General Power of Attorney as well as Will all dated 23rd May 2003. She has further claimed that she has been in possession of the suit property since then and had also obtained a factory licence from the Municipal Corporation of Delhi320 2021 4. The learned ARC vide order dated 30th September 2019 concluded that the petitioner had miserably failed to prove her independent right to the suit property and dismissed the objections. In appeal being RCT No.78 2019 the learned RCT vide order dated 15th March 2021 upheld the said findings again looking into the evidence referred to by the learned ARC and found that the conclusions of the ARC were justified. 5. Mr. Varun Dhingra learned counsel for the petitioner submitted that both the courts had erred in coming to these conclusions as it was overlooked that there was some previous litigation between Shri Mohan Lal Goyal and the respondent No.1 through the objector in which certain admissions had been made to the effect that the respondent No.1 was infact a tenant of the said Shri Mohan Lal Goyal. It is Shri Mohan Lal Goyal from whom the petitioner was claiming ownership to the suit property and that inadvertent typographical errors could not have the effect of denying to the petitioner the right to protect her possession in the suit property. It was further submitted that the documents ought to have been considered by the courts below instead of going by the statement made by the petitioner. Thus it was prayed that the petition be allowed and the possession of the petitioner be protected under Section 25 of the DRC Act as she was clearly having an independent right to the suit The learned counsel for the respondent No.1 however submitted relying on the judgments of the Supreme Court in India Pipe Fitting Co. Vs. Fakruddin M.A. Baker 4 SCC 587 and Mohd. Yunus Vs. Mohd. Mustaqim4 SCC 566 that the powers of the High Court under Article 227 of the Constitution of India were limited and the CM320 2021 powers of a Court of Appeal could not be arrogated to itself by the Court. Thus the arguments based solely on the assessment of evidence by the learned ARC and the learned RCT could not be considered by this Court. Furthermore it was submitted that the documents relied upon by the petitioner objector had not been proved as per law. There was no chain of title that was mentioned in these documents to establish that Shri Mohan Lal Goyal himself had any right in the suit property particularly to transfer title. In the circumstances the concurrent findings of fact by two courts could not be interfered with particularly in the absence of any perversity disclosed. Hence it was prayed that the petition be dismissed. The Supreme Court has laid down in India Pipe Fitting Co. supra) that the scope of inquiry in a petition under Article 227 of the Constitution of India is limited. It would be useful to reproduce the same for convenience: this Court the Constitution Bench of “5. The limitation of the High Court while exercising power under Article 227 of the Constitution is well settled. Power under Article 227 is one of judicial superintendence and cannot be exercised to upset conclusions of facts however erroneous those may be. It is well settled and perhaps too late in the day to refer to the decision in Waryam Singh v. Amarnathwhere the principles have been clearly laid down as follows: “This power of superintendence conferred by Article 227 is as pointed out by Harries C.J. in Dalmia Jain Airways Ltd. v. Sukumar Mukherjeeto be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors.” The same view was reiterated by another Constitution Bench of this Court in Nagendra Nath Bora v. Commissioner of Hills Division and Appeals Assam320 2021 : 1958 SCJ 798] Even recently in Bathutmal Raichand Oswal v. Laxmibai R. Tarta1 SCC 858] dealing with a litigation between a landlord and tenant under Bombay Rents Hotel and Lodging House Rates Control Act 1947 this Court relying on its earlier decisions observed as follows: “If an error of fact even though apparent on the face of the record cannot be corrected by means of a writ of certiorari it should follow a fortiori that it is not subject to correction by the High Court in the exercise of its jurisdiction under Article 227. The power of superintendence under Article 227 cannot be invoked to correct an error of fact which only a superior court can do in exercise of its statutory power as a court of appeal. The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the Legislature has not conferred a right of appeal and made the decision of the subordinate court or tribunal final on facts.” This is also reiterated in Mohd. Yunus and various other subsequent judgements of the Supreme Court. Thus the Court not sitting as an Appellate Court is precluded from reassessing and reevaluating the evidence that has been brought on record by parties. In the present matter the learned counsel for the petitioner has tried to explain the statement made by the petitioner before the Court as a witness examined to prove her claim in the objections. Thus the learned counsel has submitted that though in her testimony the petitioner had conceded that she had never met Shri Mohan Lal Goyal from whom she supposedly purchased the suit property except in Court and has expected this Court to read the name as ‘Mohan Singh’ i.e. respondent No.2 instead of ‘Mohan Lal Goyal’. But such a request cannot be acceded to. Rather the CM320 2021 fact that such an explanation is now being offered itself establishes that the courts below have rightly evaluated her testimony in court. 8. With regard to the alleged admission of respondent No.1 that he was a tenant of Shri Mohan Lal Goyal at best it may cloud his claim of ownership. As rightly observed by the courts below a landlord for the purposes of an eviction petition on the ground of non payment of rent is entitled to seek eviction of the tenant and this right is not restricted only to an owner. Thus the alleged admission does not defeat the right of the respondent No.1 to have filed an eviction petition under Section 14(1)(a) of the DRC Act against the respondent No.2. The observations of both the learned ARC and the learned RCT cannot be faulted with. To claim that the so called admission of the respondent No.1 that he was a tenant of Shri Mohan Lal Goyal was sufficient to prove the independent right of the petitioner would be farfetched. Under Section 25 of the DRC Act only a person who has a right independent of the tenant who can claim protection from eviction ordered against the tenant. Clearly therefore the onus is on the one who is claiming such independent rights. Here the petitioner was bound to establish her independent title to the suit property. All that she has done is that she has produced Agreement to Sell Receipts Possession Letter registered General Power of Attorney as well as Will all dated 23rd May 2003. These documents do not transfer any title to the petitioner. She has even admitted that she does not know whether Shri Mohan Lal Goyal is still alive. Thus even the Will does not come to her aid. Mere production of these papers without proof of a transfer of title in immovable property i.e. CM320 2021 the suit property to the petitioner does not assist the petitioner at all. This is the conclusion of both the learned ARC as well as the RCT. 10. This Court finds no error in the appreciation of evidence by both the courts below nor do their conclusions reflect any perversity or overstepping of jurisdiction. Neither have they ignored vital evidence nor have they considered irrelevant evidence to come to a conclusion that the petitioner has not been able to establish her independent title to the suit property. 11. The petition lacks merit and is accordingly dismissed along with the pending application. 12. The judgment be uploaded on the website forthwith. SEPTEMBER 29 2021 JUDGE CM320 2021

Condonation of delay cannot be arbitrary, there should be reasons to support such condonation: Supreme Court of India

In the application seeking condonation of delay, it was stated that she is aged 45 years and was looking after the entire litigation and that she was suffering from health issues and she had fallen sick from 01.01.2017 to 15.03.2017 and she was advised to take bed rest for the said period. However, there is no explanation for the period after 15.03.2017. Thus, the period of delay from 15.03.2017 till the Second Appeal was filed in the year 2021 has not at all been explained. Therefore, the High Court has not exercised the discretion judiciously. Such an observation was made by the Hon’ble Supreme Court before Hon’ble Justice M. R. SHAH & Hon’ble Justice B. V. NAGARATHNA in the matter of Majji Sannemma @ Sanyasirao vs Reddy Sridevi & Ors. [CIVIL APPEAL NO.7696 OF 2021]. The facts that gave rise to the present appeal were that the appellant herein filed a civil suit for a permanent injunction against the respondents herein. The Trial Court dismissed the said suit. The First Appellate Court allowed the suit by quashing and setting aside the judgment and decree passed by the Trial Court. The original defendants applied for the certified copy of the judgment and order on 04.02.2017. The same was ready for delivery on 10.03.2017. That after a period of approximately 1011 days, the respondents herein preferred the Second Appeal before the High Court. Application to condone the delay was also filed. By the impugned order, the High Court has condoned the delay of 1011 days in preferring the Second Appeal. Aggrieved the appellant had preferred the present appeal. The Hon’ble Supreme Court observed after perusing the impugned order that “it can be seen that the High Court has not observed that any sufficient cause explaining the huge delay of 1011 days has been made out.” Thereafter going through the averments in the application for the condonation of delay the Hon’ble Supreme Court observed that there is no sufficient explanation for the period from 15.03.2017 till the Second Appeal was preferred in the year   2021.  Additionally, the Hon’ble Supreme Court referred to the case of P.K. Ramachandran Vs. State of Kerala and Anr., (1997) 7 SCC 556 wherein it was held while refusing to condone the delay of 565 days, that in the absence of reasonable, satisfactory, or even appropriate explanation for seeking condonation of delay, the same is not to be condoned lightly. It was further observed that the law of limitation may harshly affect a particular party but it has to be applied with all its rigor when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds. It was further observed that while exercising discretion for condoning the delay, the court has to exercise discretion judiciously. Furthermore, the Hon’ble Supreme Court referred to the case of Basawaraj and Anr. Vs.   Special Land Acquisition Officer., (2013) 14 SCC 81 wherein it was observed and held by this Court that the discretion to condone the delay has to be exercised judiciously based on facts and circumstances of each case.   It was further observed that the expression “sufficient cause” cannot be liberally interpreted if negligence, inaction, or lack of bona fides is attributed to the party. It was further observed that even though limitation may harshly affect the rights of a party but it has to be applied with all its rigor when prescribed by statute. It was further observed that in case a party has acted with negligence, lack of bona fides, or there is inaction then there cannot be any justified ground for condoning the delay even by imposing conditions. It was further observed that each application for condonation of delay has to be decided within the framework laid down by this Court. It was further observed that if courts start condoning delay where no sufficient cause is made out by imposing conditions then that would amount to a violation of statutory principles and showing utter disregard to the legislature. Finally, the Hon’ble Supreme Court allowed the present appeal, and the impugned order of the High Court condoning the delay of 1011 days in filing the second appeal was quashed and set aside. However, there was no order as to cost. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur The facts that gave rise to the present appeal were that the appellant herein filed a civil suit for a permanent injunction against the respondents herein. The Trial Court dismissed the said suit. The First Appellate Court allowed the suit by quashing and setting aside the judgment and decree passed by the Trial Court. The original defendants applied for the certified copy of the judgment and order on 04.02.2017. The same was ready for delivery on 10.03.2017. That after a period of approximately 1011 days, the respondents herein preferred the Second Appeal before the High Court. Application to condone the delay was also filed. By the impugned order, the High Court has condoned the delay of 1011 days in preferring the Second Appeal. Aggrieved the appellant had preferred the present appeal. The Hon’ble Supreme Court observed after perusing the impugned order that “it can be seen that the High Court has not observed that any sufficient cause explaining the huge delay of 1011 days has been made out.” Thereafter going through the averments in the application for the condonation of delay the Hon’ble Supreme Court observed that there is no sufficient explanation for the period from 15.03.2017 till the Second Appeal was preferred in the year   2021.  Additionally, the Hon’ble Supreme Court referred to the case of P.K. Ramachandran Vs. State of Kerala and Anr., (1997) 7 SCC 556 wherein it was held while refusing to condone the delay of 565 days, that in the absence of reasonable, satisfactory, or even appropriate explanation for seeking condonation of delay, the same is not to be condoned lightly. It was further observed that the law of limitation may harshly affect a particular party but it has to be applied with all its rigor when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds. It was further observed that while exercising discretion for condoning the delay, the court has to exercise discretion judiciously. Furthermore, the Hon’ble Supreme Court referred to the case of Basawaraj and Anr. Vs.   Special Land Acquisition Officer., (2013) 14 SCC 81 wherein it was observed and held by this Court that the discretion to condone the delay has to be exercised judiciously based on facts and circumstances of each case.   It was further observed that the expression “sufficient cause” cannot be liberally interpreted if negligence, inaction, or lack of bona fides is attributed to the party. It was further observed that even though limitation may harshly affect the rights of a party but it has to be applied with all its rigor when prescribed by statute. It was further observed that in case a party has acted with negligence, lack of bona fides, or there is inaction then there cannot be any justified ground for condoning the delay even by imposing conditions. It was further observed that each application for condonation of delay has to be decided within the framework laid down by this Court. It was further observed that if courts start condoning delay where no sufficient cause is made out by imposing conditions then that would amount to a violation of statutory principles and showing utter disregard to the legislature. Finally, the Hon’ble Supreme Court allowed the present appeal, and the impugned order of the High Court condoning the delay of 1011 days in filing the second appeal was quashed and set aside. However, there was no order as to cost. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur The Hon’ble Supreme Court observed after perusing the impugned order that “it can be seen that the High Court has not observed that any sufficient cause explaining the huge delay of 1011 days has been made out.” Thereafter going through the averments in the application for the condonation of delay the Hon’ble Supreme Court observed that there is no sufficient explanation for the period from 15.03.2017 till the Second Appeal was preferred in the year   2021.  Additionally, the Hon’ble Supreme Court referred to the case of P.K. Ramachandran Vs. State of Kerala and Anr., (1997) 7 SCC 556 wherein it was held while refusing to condone the delay of 565 days, that in the absence of reasonable, satisfactory, or even appropriate explanation for seeking condonation of delay, the same is not to be condoned lightly. It was further observed that the law of limitation may harshly affect a particular party but it has to be applied with all its rigor when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds. It was further observed that while exercising discretion for condoning the delay, the court has to exercise discretion judiciously. Furthermore, the Hon’ble Supreme Court referred to the case of Basawaraj and Anr. Vs.   Special Land Acquisition Officer., (2013) 14 SCC 81 wherein it was observed and held by this Court that the discretion to condone the delay has to be exercised judiciously based on facts and circumstances of each case.   It was further observed that the expression “sufficient cause” cannot be liberally interpreted if negligence, inaction, or lack of bona fides is attributed to the party. It was further observed that even though limitation may harshly affect the rights of a party but it has to be applied with all its rigor when prescribed by statute. It was further observed that in case a party has acted with negligence, lack of bona fides, or there is inaction then there cannot be any justified ground for condoning the delay even by imposing conditions. It was further observed that each application for condonation of delay has to be decided within the framework laid down by this Court. It was further observed that if courts start condoning delay where no sufficient cause is made out by imposing conditions then that would amount to a violation of statutory principles and showing utter disregard to the legislature. Finally, the Hon’ble Supreme Court allowed the present appeal, and the impugned order of the High Court condoning the delay of 1011 days in filing the second appeal was quashed and set aside. However, there was no order as to cost. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur Additionally, the Hon’ble Supreme Court referred to the case of P.K. Ramachandran Vs. State of Kerala and Anr., (1997) 7 SCC 556 wherein it was held while refusing to condone the delay of 565 days, that in the absence of reasonable, satisfactory, or even appropriate explanation for seeking condonation of delay, the same is not to be condoned lightly. It was further observed that the law of limitation may harshly affect a particular party but it has to be applied with all its rigor when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds. It was further observed that while exercising discretion for condoning the delay, the court has to exercise discretion judiciously. Furthermore, the Hon’ble Supreme Court referred to the case of Basawaraj and Anr. Vs.   Special Land Acquisition Officer., (2013) 14 SCC 81 wherein it was observed and held by this Court that the discretion to condone the delay has to be exercised judiciously based on facts and circumstances of each case.   It was further observed that the expression “sufficient cause” cannot be liberally interpreted if negligence, inaction, or lack of bona fides is attributed to the party. It was further observed that even though limitation may harshly affect the rights of a party but it has to be applied with all its rigor when prescribed by statute. It was further observed that in case a party has acted with negligence, lack of bona fides, or there is inaction then there cannot be any justified ground for condoning the delay even by imposing conditions. It was further observed that each application for condonation of delay has to be decided within the framework laid down by this Court. It was further observed that if courts start condoning delay where no sufficient cause is made out by imposing conditions then that would amount to a violation of statutory principles and showing utter disregard to the legislature. Finally, the Hon’ble Supreme Court allowed the present appeal, and the impugned order of the High Court condoning the delay of 1011 days in filing the second appeal was quashed and set aside. However, there was no order as to cost. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur Furthermore, the Hon’ble Supreme Court referred to the case of Basawaraj and Anr. Vs.   Special Land Acquisition Officer., (2013) 14 SCC 81 wherein it was observed and held by this Court that the discretion to condone the delay has to be exercised judiciously based on facts and circumstances of each case.   It was further observed that the expression “sufficient cause” cannot be liberally interpreted if negligence, inaction, or lack of bona fides is attributed to the party. It was further observed that even though limitation may harshly affect the rights of a party but it has to be applied with all its rigor when prescribed by statute. It was further observed that in case a party has acted with negligence, lack of bona fides, or there is inaction then there cannot be any justified ground for condoning the delay even by imposing conditions. It was further observed that each application for condonation of delay has to be decided within the framework laid down by this Court. It was further observed that if courts start condoning delay where no sufficient cause is made out by imposing conditions then that would amount to a violation of statutory principles and showing utter disregard to the legislature. Finally, the Hon’ble Supreme Court allowed the present appeal, and the impugned order of the High Court condoning the delay of 1011 days in filing the second appeal was quashed and set aside. However, there was no order as to cost.

1. Feeling aggrieved and dissatisfied with the impugned order dated 16.09.2021 passed by the High Court of Andhra No.331 of 2021 by which the High Court has condoned a appellant ­ original plaintiff respondent before the High by quashing and setting aside the judgment and decree passed by the Trial Court by judgment and decree dated 01.02.2017. That the original defendants respondents herein applied for the certified copy of the judgment and order on 04.02.2017. The same was ready for delivery on the respondents herein original defendants preferred the the delay was also filed being I.A. No.1 of 2021. By the 1011 days in preferring the Second Appeal which is the 3. Learned counsel appearing on behalf of the appellant herein original plaintiff has vehemently submitted that in the present case High Court has committed a grave error in explaining the huge delay of 1011 days in preferring the delay of 1011 days the High Court has also not observed in the application for condonation of delay there is no explanation whatsoever explaining the delay for the period 3.4 Making the above submissions and relying upon the decisions of this Court in the cases of Ramlal Motilal and Chhotelal Vs. Rewa Coalfields Ltd. 2 SCR 762 P.K Patil Vs. Executive Engineer Jalgaon Medium Project 2008) 17 SCC 448 and Basawaraj and Anr. Vs. Special Land Acquisition Officer. 14 SCC 81 it is prayed to 4. Shri Siddhartha Srivastava learned counsel appearing on 4.1 It is submitted that when the High Court has exercised interfered with by this Court in exercise of powers under 4.2 It is further submitted by learned counsel appearing on the High Court if the delay is condoned in that case the appeal will be considered and decided on merits and submitted that in order to enable the respondents appellants before the High Court to submit the case on 5. We have heard the learned counsel appearing on behalf of 6. At the outset it is noted that by the impugned order the High the Second Appeal by respondent Nos.1 and 2 herein “In these circumstances when there are certain questions which require a debate in the second appeal it without inviting a decision on merits. lf the delay is give an opportunity to the parties to canvass their respective case. Since this question being of procedure assigned by the petitioner the delay in presenting this that valuable rights are accrued to her on account of payment of costs of Rs.2 000 ­ to the learned counsel for the respondent on or has not observed that any sufficient cause explaining the herein nor it suffers from want of due diligence. However from the averments in the application for condonation of delay we are of the opinion that it was a case of a gross respondents herein appellants before the High Court in 6.2 We have gone through the averments in the application for for the period from 15.03.2017 till the Second Appeal was preferred in the year 2021. In the application seeking suffering from health issues and she had fallen sick from 7. At this stage a few decisions of this Court on delay in filing 7.1 In the case of Ramlal Motilal and Chhotelal it is In construing s. 5 it is relevant to bear in mind two the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the parties. In other words when the period of limitation heartedly disturbed. The other consideration which delay and admit the appeal. This discretion has been J.L.R. 13 Mad. 269 "s. 5 gives the Court a discretion inaction nor want of bona fide is imputable to the 7.2 In the case of P.K. Ramachandranwhile refusing to condone the delay of 565 days it is observed that in the absence of reasonable satisfactory or even appropriate and the courts have no power to extend the period of limitation on equitable grounds. It is further observed that while exercising discretion for condoning the delay the court 7.3 In the case of Pundlik Jalam Patilit is observed as “The laws of limitation are founded on public policy Statutes of limitation are sometimes described as based on the maxim “interest reipublicae ut sit finis litium” that is the interest of the State requires that there should be end to litigation but at the same time litigation is based on public policy fixing a lifespan for meant to see that the parties do not resort to dilatory in his Jurisprudence states that the laws come to the 7.4 In the case of Basawaraj it is observed and held by exercised judiciously based on facts and circumstances of each case. It is further observed that the expression further observed that even though limitation may harshly for condoning the delay even by imposing conditions. It is It is further observed that if courts start condoning delay 7.5 In the case of Pundlik Jalam Patilit is observed by this Court that the court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity 8. Applying the law laid down by this Court in the aforesaid Court for condonation of huge delay of 1011 days in preferring the Second Appeal. The High Court is not at all delay. The High Court has not exercised the discretion judiciously. The reasoning given by the High Court while condoning huge delay of 1011 days is not germane delay of 1011 days in preferring the appeal by respondent Nos.1 and 2 herein original defendants. Impugned order In view of the above and for the reasons stated above the present Appeal is Allowed. The impugned order dated 1011 days in preferring the Second Appeal by respondent Nos.1 and 2 herein is hereby quashed and set aside Consequently Second Appeal No.331 of 2021 preferred by respondent Nos.1 and 2 herein stands dismissed on the

Cheque not having CTS authentication automatically would be invalidated in terms of the guidelines issued by the RBI : Jammu and Kashmir High Court

The RBI has categorically issued a notification wherein it is stated that Non-CTS cheques will not be presented before the Bank for encashment from December 31, 2013. This was upheld in the judgment passed by a single judge bench comprising of HON’BLE MS. JUSTICE SINDHU SHARMA, in the matter Ravi Kumar Sharma V. Yoginder Singh [IA No. 01/2016], dealt with an issue where the petitioner filed a petition seeking quashing of criminal proceedings in which cognizance under section 138 of the Negotiable Instrument Act, 1881 has been taken by the Sub-Judge/Special Mobile Magistrate, Jammu on the complaint filed by the respondent. The complaint was filed by the respondent/complainant herein alleging that the petitioner borrowed a sum of Rs.2,50,000/- from the complainant and after some time, he issued a cheque drawn on Ellaquai Dehati Bank, Jammu for liquidation of the debts. The cheque was presented by the respondent/complainant for payment but the said cheque was dis-honoured vide memo. The petitioner seeks exercise of the inherent powers of this Court under Section 561-A Cr.P.C, on the ground that the complaint is false and frivolous, because as per Income Tax Act, every loan beyond Rs.2,00,000/- could be advanced only through cheque and since the complainant has nowhere pleaded in his complaint that the amount was paid in cheque, therefore, it is a violation of Section 266 (ss) of the Income Tax Act and the stand of the respondent-complainant is that he paid Rs. 2,50,000/- in cash is false. The complaint is liable to be dismissed because the cheque for which, the complaint was filed could not have been presented before the Bank and, as such, the same could not have been encashed also for the reason that it became obsolete by December 2013, therefore, it is not legally enforceable debt against which the complaint under Section 138 of Negotiable Instrument Act. Moreover, the cheque could not have been given by the petitioner herein on 05.02.2015 because the same had become obsolete and it is categorically mentioned in the statement duly made by the petitioner that the cheque was issued from Mr. Surinder Khanna in the year 2006-2007. After hearing both sides, the Hon’ble High Court of Jammu and Kashmir dismissed the petition and held that the powers of this Court under Section 561-A Cr.P.C. are not to promote such litigation which is opposed to the concept of justice which is also a paramount importance because the petitioner has nowhere denied his signatures on the cheque, therefore, he claims to know so much about income tax and CTC, yet he issued a cheque, which was not CTC which borders on cheating and fraud, though the 4 CRMC No. 497/2016 respondent has not filed any case of cheating before the police against him, but the respondent appears only interested in recovery of his money and no harassment to the accused. Click here to view judgement Judgement reviewed by – Vaishnavi Raman

HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR Through video conferencing) WP(Cr1) No. 53 2020 Pronounced on: 16 .06.2020 Through: Mr. Shuja Ul Haq Advocate .…Petitioner(s) Ali Mohammad Charloo @ Sagar V s Union Territory of J&K and others .…Respondent(s) Through: Mr. B. A Dar Sr. AAG CORAM : HON’BLE MRS. JUSTICE SINDHU SHARMA JUDGE 01. This petition has been filed by the detenu through his son challenging his detention vide order No. DMS PSA 145 2020 dated 05.02.2020 passed by the District Magistrate Srinagar in exercise of his powers under section 8 of Jammu & Kashmir Public Safety Act. 02. Briefly stated the facts as narrated in the petition are that the detenu is a member of National Conference Party a regional political party of the erstwhile State of Jammu and Kashmir. The detenu being an active Member of the party has represented his party in elections held in 1996 2002 2008 and 2014 and has also secured the mandate of people. He also held various portfolios as Minister of Home Department Department of Law Justice and Parliamentary Affairs and R&B Department. 03. Article 370 of the Constitution of India came to be abrogated on 5th 6th of August 2019 and apprehending opposition by the petitioner in this regard he was arrested on 6th of August 2019 under sections 107 and 151 2 WP(Cr1) No. 53 2020 Cr.P.C. The order of detention was however passed on 05.02.2020 by the detaining authority with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. 04. This detention order has been assailed by the detenu on the following grounds: i) That the order of detention is unconstitutional illegal and bad in law as the detenu was already in custody u s 107 151 Cr.P.C when the detention order was passed and the detaining authority has neither shown any awareness of the fact nor shown any compelling reasons for passing the order of detention. ii) There is no subjective satisfaction recorded which is sine qua non for passing the order of detention. iii) The detaining authority has not assigned any compelling and cogent reason which necessitate for passing the order of detention. iv) The detenu was not supplied all the material on which the detaining authority has derived its satisfaction. v) The order of detention is based on verbatim reproduces of the police dossier and there is no application of mind by the detaining board nor approved by it. vi) The grounds of detention were neither referred to the advisory vii) The detention order is based on mere apprehension and grounds of detention are vague irrelevant and non existent which do not disclose any activity prejudice to maintenance of public order or 3 WP(Cr1) No. 53 2020 any eminent threat to public order. There is no proximate link with the grounds of detention and threat to public order. viii) The order of detention has neither been approved by the government within statutory period nor the detenu was heard by the Advisory Board. 05. Mr. Shuja Ul Haq learned counsel for the petitioner submits that the petitioner is an active member of National Conference Party who has always worked within the framework of Constitution of India. It is also the role of opposition to criticize policies of the Government to see that the same are within the framework of Constitution of India for the welfare of the citizens. He however submits that the detenu has never been involved in any activity against the maintenance of law and public order. He while reiterating the grounds of detention submitted that the detention order is liable to be quashed because the detaining authority has not shown its awareness to the fact that the detenu was already in custody and it has not assigned any compelling and cogent reasons for passing the order of detention. Reliance has been placed on judgments in Thahira Haris & ors. vs. Govt. of Karnataka & ors. 11 SCC 438 Jai Singh & ors. vs. State of J&K and ors. AIR 1985 SC 764’ and Mohd. Yousuf Rather vs. State of Jammu and Kashmir & others AIR 1979 SC 1925. 06. Mr. B. A Dar learned Senior Additional Advocate General appearing for the respondents submitted that the detaining authority has passed the order of detention after carefully examining the record and recorded its satisfaction. It was found necessary to detain the detenu to prevent him from acting in a manner prejudicial to the maintenance of public order and all statutory and constitutional guarantees have been complied and the grounds 4 WP(Cr1) No. 53 2020 of detention were provided to the detenu within the statutory period prescribed under section 13 of the Act. In compliance to District Magistrate’s detention order the warrants were executed by the Executive Officer Dy. SPStation House Officer Police Station Khanyar. 07. Mr. Dar further argued that the grounds of detention were explained to the detenu and the execution report is also placed on record. The Government in exercise of its powers under sub sectionof Section 8 of J&K Public Safety Act 1978 approved the aforesaid detention order and on the basis of the opinion of the State Advisory Board has confirmed the detention of the detenu. The detenu however despite having received the grounds of detention did not made any representation. In support of his case he has relied on judgment of the Supreme Court in Haradhan Saha vs. State of W. B. 3 SCC 198 and also on Mian Abdul Qayoom vs Union Territory of J&K & ors. LPA No. 28 2020 decided on 08. Heard learned counsel for the parties and perused the record. 09. The order of detention in this case has been passed on the apprehension referred in the grounds of detention in Para Nos. 3 to 7 which are reproduced as under : “Whereas you are a known political figure in Srinagar City and enjoys good popularity in Khanyar Constituency which is part of down town area of Srinagar city besides you are having a good liaison with respectable and youth of the area. Recently in July 2019 you have addressed your party workers at your residence situated at Airport Road Humhama stating there that if Article 370 & 35are abrogated you will unite and raise voice against Union of India as has already been decided by National Conference besides informed your party workers 5 WP(Cr1) No. 53 2020 about various decision taken by National Conference if Article 370 & 35will be abrogated by Government of India. Whereas reportedly you impressed upon his party workers who attended meeting at your residence that youth of Khanyar Constituency be informed regarding the meeting and tell them to be ready for mass agitation if Article 370 is revoked. Presently you are General Secretary of National Conference and are very vocal against abolishing of Article 370 and 35of Constitution of India and also against bifurcation of erstwhile J&K State. You have led many protest marches in this behalf and created problems in public order within District Srinagar besides instigated general youth in general party workers and youth belonging to your constituency in particular. Your capacity can be gauged from this fact that you were able to convince your electorates to come out and vote in huge numbers even during peak militancy and poll boycotts. Whereas you took out a protest rally alongwith about 250 party workers towards Lalchowk in view of Court hearing of Article 35 and while addressing at Khansahib Budgam you criticized government for alleged anti people policies including abrogation of Article 370 & 35(A) of Indian Constitution. White addressing a party workers meeting you again criticized Government for alleged anti people policies and attempt to Abrogation Article 370 & 35 of India Constitution. Whereas you have been very vocal against abolishing of Article 370 and 35(A) of Constitution of India and also against bifurcation of erstwhile J&K State. You have posted may provoking and instigating comments ideas on social networking sites so as to instigate common people against the decision of Union of India. Whereas your activities are highly prejudicial to the maintenance of Public order and have a significant effect and influence upon the ideology of common people. Your capacity 6 WP(Cr1) No. 53 2020 of influencing people for any cause could be gauged from this fact that you were able to convince your electorate to come out and vote in huge numbers even during peak militancy and poll boycotts. Your activities are aiming to raise a voice against union of India by way of encouraging mass agitation thus it would be safely said that by way of your influence in Beerwah Sonawar constituency you can get large numbers to protest against decision taken by Government of India.” 10. However whether the activities referred above would be sufficient for his detention has to be considered when compared to grounds of detention in case titled Mohd. Yousuf Rather vs. State of Jammu and Kashmir and others AIR 1979 SC 1925. These grounds are extracted below: ‘You are a die hard Naxalite and you are notorious for your activities which are proving prejudicial to the maintenance of public order. You are in the habit of organising meetings secret as well as public in which you instigate the people to create lawlessness which spreads panic in the minds of a common people. You are also reported to be in the habit of going from one village to the other with intent to compel the shopkeepers to close down their shops and participate in the meetings. You are reported to have recently started a campaign in villages asking the inhabitants not to sell their extra paddy crop to the Government and in case they are compelled to do so they should manhandle the Government officials deputed for the purpose of purchasing shali on voluntary basis from the On 9 2 79 you after compelling the shopkeepers to close down their shops organised a meeting at Chowalgam and asked the participants to lodge protests against the treatment meted out to Shri Z. A. Bhutto late Prime Minister of Pakistan by General Zia UI Haq in fact you did not have any sympathy for the late Prime Minister but you did it with the intent to exploit the situation and create lawlessness’.” 7 WP(Cr1) No. 53 2020 11. Even though the detenu in above case before the Supreme Court was a die hard Naxalite and as compared to the grounds of detention in the present case which in a democracy are the normal activities of a politician who admittedly is an active member of National Conference party since 1977 and has been legislature as well as the Member of Cabinet in the erstwhile State of Jammu & Kashmir. His opposition to the abrogation of Articles 370 & 35(A) of the Constitution of India is not sometime new but the question is whether such apprehension could be a ground for his detention in the present case while considering the grounds of detention with the case of Mohd. Yousuf Rather. In my opinion the grounds of detention of the detenu are so fragile in the present case that they do not justify his detention in view of the law laid down by the Supreme Court in case of Mohd Yousuf Rather supra) holding that: “We are primarily concerned this case with Article 22(5) which is as follows: “................The extent and the content of Article 22(5) have been the subject matter of repeated pronouncements by this Court consistently adopted by this Court is perhaps one of the outstanding contributions of the Court in the cause of Human Rights. The law is now well settled that a detenu has two rights under Article 22(5) of the Constitution:To be informed as soon as may be of the grounds on which the order of detention is based that is the grounds which led to the subjective satisfaction of the detaining authority andto be afforded the earliest opportunity of making a representation against the order of detention that is to be furnished with sufficient 8 WP(Cr1) No. 53 2020 particulars to enable him to make a representation which on being considered may obtain relief to him. The inclusion of an irrelevant or non existent ground among other relevant grounds is an infringement of the first of the rights and the inclusion of an obscure or vague ground among other clear and definite grounds is an infringement of the second of the rights. In either case there is an invasion of the Constitutional rights of the detenu entitling him to approach the Court for relief. The reason for saying that the inclusion of even a single irrelevant of obscure ground among several relevant and clear grounds is an invasion of the detenu s constitutional right is that the Court is precluded from adjudicating upon the sufficiency of the grounds and it cannot substitute its objective decision for the subjective satisfaction of the detaining authority.” 12. Finally in Para 20 of the aforesaid judgment it was held that the allegations are irrelevant and vague. Paras 20 & 24 are reproduced as follows: “20. The distinction made in Naresh Chandra Ganguly s supra) case between the preamble meaning thereby the recital in terms of the statutory provision and the grounds meaning thereby the conclusions of fact which led to the passing of the order of detention does not justify any distinction being made between introductory facts background facts and grounds as such. All allegations of fact which have led to the passing of the order of detention are grounds of detention . If such allegations are irrelevant or vague the detenu is entitled to be released. In paragraph five it is said that the detenu instigated educated unemployed youth to go on a hunger strike. A hunger strike in our country is a well known form of peaceful protest but it is difficult to connect it with public disorder. We consider this ground also to be vague and irrelevant. The allegation that the detenu made derogatory remarks about Shri Sheikh Mohammed Abdullah Chief Minister of Kashmir and 9 WP(Cr1) No. 53 2020 compared him with General Zia of Pakistan appears to us again to be entirely irrelevant. I do not think it is necessary to refer to all the grounds in any further detail as that has been done by my brother Shinghal J.” 13. The detention is also bad because he has been arrested under Sections 107 151 Cr.P.C. and was still in custody when the detention order was passed. However there is nothing on record to show that the detaining authority was aware of the fact or that the detenu was likely to be released. Detaining Authority in such a case must show that there are compelling reasons for detention in the absence of which his detention would be illegal as held by the Supreme Court in Vijay Kumar vs. Union of India & ors. AIR 1988 SC 934 which reads as under : awareness of the detaining authority of the fact that the detenu is already in detention and ii) there must be compelling reasons justifying such detention despite the fact that the detenu is already under 14. Moreover there is nothing in the grounds of detention as to when and on which date he took out a protest rally with 250 party workers towards Lal Chowk after the so called hearing Article 35before whom as also the date on which he addressed gathering at Khansahib Budgam where he allegedly criticized the Government. Every such activity should have nexus with the alleged abrogation of Articles which took place on 5th & 6th of August 2019 but no such nexus has been alleged in the grounds of 15. The detention order of detenu is illegal because the Detaining Authority has not shown its awareness to the fact that the detenu was 10 WP(Cr1) No. 53 2020 already in custody in view of the law laid down in N. Meera Rani Vs. Government of Tamil Nadu AIR 1989 SC 2027 which states as under: “We may summarise and reiterate the settled principle. Subsisting custody of the detenu by itself does not invalidate an order of his preventive detention and the decision must depend on the facts of the particular case preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order etc. ordinarily it is not needed when the detenu is already in custody the detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order but even so if the detaining authority is reasonably satisfied on cogent material that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time he must be detained in order to prevent him from indulging in such prejudicial activities the detention order can be validly made even in anticipation to operate on his release. This appears to us to be the correct legal position. In this case this Court has pointed out that there was no indication in the detention order read with its annexure that the detaining authority considered it likely that the detenu could be released on bail and that the contents of the order showed the satisfaction of the detaining authority that there was ample material to prove the detenu s complicity in the Bank dacoity including sharing of the booty in spite of absence of his name in the FIR as one of the dacoits. The Court held that the order for detention was invalid since it was made when the detenu was already in jail custody for the offence of bank dacoity with no prospect of his release.” 11 WP(Cr1) No. 53 2020 16. The judgments relied upon by the learned Sr. AAG have no relevance to the facts of this case. grounds taken in the petition. In view of the above discussion there is no need to advert to the other 18. For the aforesaid reasons this petition is allowed and the impugned detention order No. DMS PSA 145 2020 dated 05.02.2020 passed by the District Magistrate Srinagar is hereby quashed. Respondents shall set the detenu at liberty forthwith provided he is not required in any other case. 19. Let the detention record be returned back to the learned counsel for the respondents against proper receipt. Judge 16 .06.2020 SUNIL II Whether the order is speaking: Whether the order is reportable: Yes

A commercial document having an arbitration clause has to be interpreted in such a manner as to give effect to the agreement rather than to invalidate it: High Court of Gujurat

In absence of any procedure having been agreed upon for appointing the Arbitrator, and both the parties having failed to agree on the appointment of the Arbitrator, within thirty days from the receipt of the request made by the petitioner to the respondents, the case would fall under sub­ section (5) of Section 11 for appointment of Arbitrator by this Court. This was said in the case of Alphard Maritime Pvt. Ltd. vs Malara Enterprises [C/IAAP/40/2020] by Justice Bela M. Trivedi in the High Court of Gujarat at Ahmedabad.  The facts of the case are that the respondents were under a contract with the petitioners to provide dry docking services. The petitioner, sent a notice through E­ mail calling upon the respondents to pay the damages arising out of the breach of the contract and also invoked the arbitration Clause 13 requesting the respondents to appoint an independent and impartial sole Arbitrator as per the provisions of the said Act. However, the respondents refuted the very existence of the contract. The petitioner therefore has filed the petition seeking appointment of Arbitrator under Section 11 of the said Act, in view of the Clause­13 of the terms and conditions of the contract quoted by the respondents.  The petitioner contended that arbitration Clause­13 defined the contractual relationship between the partiesThe purchase order was issued by the petitioner pursuant to the Clause­11 of the quotation dated 26.09.2020. From the E­ mails exchanged and the conduct of the parties, it was evidently clear that there was an arbitration agreement as contemplated in Section 7 of the said Act. The existence of the Clause­13 is not denied by the respondents, the respondents have indirectly admitted to the validity of the Arbitration Clause, by stating that there was no ad idem between the parties on the arbitration agreement. The respondents contended that the quotation by the respondents was merely an offer and not a binding contract, and that there was no arbitration clause in the purchase order. They further contended that assuming without admitting that the quotation contained the arbitration agreement, such passing reference of words in the terms and conditions of the quotation would not constitute a valid arbitration agreement as contemplated under Section 7 of the said Act.  The Court after perusing the interpretation of Section 7 of the said Act, said that “it can be safely deduced from the aforesaid legal position that the Arbitration Agreement even though in writing need not be signed by the parties, if the record of the agreement is provided by the exchange of letters, telex, telegrams or other means of telecommunications”.  Furthermore, the Court said that “though the parties had agreed to submit to the jurisdiction at the High Court of Gujarat for the purpose of arbitration, the procedure for the appointment of the Arbitrator was not agreed upon. It has also come on record that the petitioner had already called upon the respondents by sending a Notice of Arbitration through e­mail, calling upon them to appoint an independent and impartial Sole Arbitrator as per the provisions contained in the Act, however the respondents had refused to agree to the said request. So, the case falls under section (5) of Section 11 for appointment of Arbitrator by this Court”. Hence, the appeal stands allowed.

on : Fri Apr 23 23:03:54 IST 2021 C IAAP 40 2020 CAV JUDGMENTIN THE HIGH COURT OF GUJARAT AT AHMEDABADR PETN. UNDER ARBITRATION ACT NO. 420 FOR APPROVAL AND SIGNATURE: HONOURABLE MS. JUSTICE BELA M. TRIVEDI ==========================================================1 Whether Reporters of Local Papers may be allowed to see the judgment NO2 To be referred to the Reporter or not YES3 Whether their Lordships wish to see the fair copy of the judgment NO4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder NO==========================================================ALPHARD MARITIME PVT. LTD. VersusMALARA ENTERPRISES ==========================================================Appearance:MR ASHWIN SHANKAR WITH MR RISHI MURAR KP FOR MS PAURAMI B. SHETH(841) for the Petitioner(s) No. 1MR.PARTH CONTRACTOR(7150) for the Respondent(s) No. 1 2==========================================================CORAM: HONOURABLE MS. JUSTICE BELA M. TRIVEDI Date : 23 04 2021 CAV JUDGMENT1.The petitioner M s. Alphard Maritime Pvt. Ltd. has preferred the present petition under Section 11 of the Arbitration and Conciliation Act 1996seeking following prayer:­“18.a.Appoint an independent Arbitrator for the purpose of resolving the dispute arose between the petitioner and the respondents under the Arbitration and Conciliation Act 1996read with the Arbitration and ConciliationAct 2019 No.319.”2.As per the case of the petitioner the petitioner is a Company incorporated in India and is an owner of various tugs barges and offshore vessels. The petitioner is the owner of the barge A M Abhik on which the dry docking services were provided by the respondents who belong to Malara firm a proprietary firm of the Proprietor Mr.Ashish S. Joshi the respondent No. 2 herein. The further case of the petitioner as stated in the petition is that the petitioner required dry docking services for the barge involved in the present dispute for which the respondent No.2 had approached the petitioner with a quotation for the dry dock repairs of the barge at Sikka Port on behalf of the respondent No.1. Later as per the instructions of the petitioner the respondent No.1 sent the quotations and the contractual terms on its letter­head vide E­mail on 26.9.2019 for the dry docking services to be provided 2 SCC 455 to submit that the arbitral Tribunal is empowered and has the competence to rule on its own jurisdiction including determining all jurisdictional issues as also the existence or validity of the arbitration agreement. Reliance has also been placed on the decision of the Supreme Court in case of Govind Rubber Limited Vs. Louis Dreyfus Commodities Asia Private Limited reported in13 SCC 477 to submit that an arbitration agreement even though in writing need not be signed by the parties if the record of agreement is provided in exchange of letters telex telegrams or other means of communications.6.Per contra the learned Advocate Mr.Parth Contractor for the respondents vehemently submitted that the quotation by the respondents was merely an offer and not a binding contract and that there was no arbitration clause in the purchase order. Mr. Contractor further submitted that assuming without admitting that the quotation contained the arbitration agreement such passing reference of words in the terms and conditions of the Page 6 of 19 on : Fri Apr 23 23:03:54 IST 2021 C IAAP 40 2020 CAV JUDGMENTquotation would not constitute a valid arbitration agreement as contemplated under Section 7 of the said Act. Placing heavy reliance on the decision of the Supreme Court in case of Jagdish Chander Vs. Ramesh Chander and Ors. reported in5 SCC 719 Mr. Contractor submitted that mere use of the word “arbitration” or “arbitrator” in a clause would not make it an arbitration agreement if it required or contemplated a further or fresh consent of the parties for reference to arbitration. Mr. Contractor also relied upon the decision of the Bombay High Court in case of Dhargalkar TechnoesisPvt. Ltd. Vs. MMRDdecided on 3.12.2020 to buttress his submission that in absence of an arbitration agreement between the parties the petition is liable to be dismissed.7.At the outset it may be noted that the 2015 Amendment Act brought significant changes in Section 11 of the Act and sub­sectionwas inserted therein by the said Amendment Act w.e.f. 23.10.2015. The said sub­Sectionwas omitted by the Act 319 however it seems that though the said Amendment Act 319 was published in the Official Gazette of India on 9th August 2019 the said deletion of sub­sectionPage 7 of 19 on : Fri Apr 23 23:03:54 IST 2021 C IAAP 40 2020 CAV JUDGMENThas not come into effect. The Supreme Court in the latest decision in case of Bharat Sanchar Nigam Ltd. Versus M s. Nortel Networks India Pvt. Ltd. decided on 10th March 2021 in Civil Appeal Nos. 843­8421 observed with regard to the status of sub­sectionas under:“The 2019 Amendment has deleted sub­sectionin Section 11. However the amended to Section 11 is yet to be notified. Consequently sub­sectioncontinues to remain on the statute book and governs the scope of power under Section 11 for the present. “8.The said sub­sectionof Section 11 of the said Act reads as under:­“(6A) The Supreme Court or as the case may be the High Court while considering any application under sub­sectionor sub­sectionor sub­sectionshall notwithstanding any judgment decree or order of any Court confine to the examination of the existence of an arbitration agreement.” 9. In case of Uttarakhand Purv Sainik Kalyan Nigam Limitedthe Supreme Court considering sub­sectionof Section 11 and applying the Doctrine of Kompentenz­Kompentenz also known as competence­competence reiterated that in view of the legislative mandate contained in Section 11the Court is now required only to examine the existence of the arbitration agreement. All other preliminary or threshold Page 8 of 19 on : Fri Apr 23 23:03:54 IST 2021 C IAAP 40 2020 CAV JUDGMENTissues are left to be decided by the Arbitrator under Section 16. The precise observations made by the Supreme Court in the said case are reproduced as under:“7.10.In view of the legislative mandate contained in Section 11(6­A) the Court is now required only to examine the existence of the arbitration agreement. All other preliminary or threshold issued are left to be decided by the arbitrator under Section 16 which enshrines the kompetenz­kompetenz principle.”10.In view of the above stated legal position the Court is required to examine only about the existence of the Arbitration Agreement. Section 7 of the said Act envisages as to what is an Arbitration Agreement. The said provision reads as under: “7.Arbitration Agreement­In this Part “arbitration agreement” means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship whether contractual or not.An arbitration agreement shall be in writing.An arbitration agreement is in writing if it is contained in­(a) a document signed by the partiesan exchange of letters telex telegrams or other means of telecommunication which provide a record of the agreement or(c) an exchange of statements of claim and defence in Page 9 of 19 on : Fri Apr 23 23:03:54 IST 2021 C IAAP 40 2020 CAV JUDGMENTwhich the existence of the agreement is alleged by one party and not denied by the other.(5) The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract.” 11.At his juncture it would be also germane to refer to the decision of the Supreme Court in the case of Govind Rubber Limitedon the interpretation of Section 7 of the said Act. Para. 15 to 17 thereof read as under:“15.A perusal of the aforesaid provisions would show that in order to constitute an arbitration agreement it need not be signed by all the parties. Section 7(3) of the Act provides that the arbitration agreement shall be in writing which is a mandatory requirement. Section 7(4) states that the arbitration agreement shall be in writing if it is a document signed by all the parties. But a perusal of clausesandof Section 7(4) would show that a written document which may not be signed by the parties even then it can be arbitration agreement. Sectionprovides that an arbitration agreement can be culled out from an exchange of letters telex telegrams or other means of telecommunication which provides a record of the agreement. 16.On reading the provisions it can safely be concluded that an arbitration agreement even though in writing need not be signed by the parties if the record of agreement is provided by exchange of letters telex telegrams or other means of telecommunication Section 7(4)(c) provides that there can be an arbitration agreement in the exchange of statements of claims and defence in which the existence of the agreement is alleged by one party and not denied by the other. If it can be prima facie shown that the parties are at ad idem then the mere fact of one party not signing the agreement cannot absolve him from the liability under Page 10 of 19 on : Fri Apr 23 23:03:54 IST 2021 C IAAP 40 2020 CAV JUDGMENTthe agreement. In the present day of e­commerce in cases of internet purchases tele purchases ticket booking on internet and in standard forms of contract terms and conditions are agreed upon. In such agreements if the identity of the parties is established and there is a record of agreement it becomes an arbitration agreement if there is an arbitration clause showing ad idem between the parties. Therefore signature is not a formal requirement under Section 7(4)(b) or 7(4)(c) or under Section 7(5) of the Act. 17. We are also of the opinion that a commercial document having an arbitration Clause has to be interpreted in such a manner as to give effect to the agreement rather than invalidate it. On the principle of construction of a commercial agreement Scrutton on Charter Partiesexplained that a commercial agreement has to be b construed according to the sense and meaning as collected in the first place from the terms used and understood in the plain ordinary and popular senseopined relying on Astro Vencedor Compania Naviera S.A. v. Mabanaft GmbH that the court should if the circumstances allow lean in favour of giving effect to the arbitration Clause to which the parties have agreed. The learned author has also referred to another judgment in Paul Smith Ltd. v. H and S International Holdings lnc. in order to emphasise that in construing an arbitration agreement the court should seek to “give effect to the intentions of the parties”.12.Thus it can be safely deduced from the aforesaid legal position that the Arbitration Agreement even though in writing need not be signed by the parties if the record of the agreement is provided by the exchange of letters telex telegrams or other means of telecommunications. It is also held that a commercial Page 11 of 19 on : Fri Apr 23 23:03:54 IST 2021 C IAAP 40 2020 CAV JUDGMENTdocument having an arbitration clause has to be interpreted in such a manner as to give effect to the agreement rather than to invalidate it. 13.Ofcourse the learned Advocate Mr. Parth Contractor appearing for the respondents has placed heavy reliance on the observations made by the Supreme Court in the case of Jagdish Chanderto submit that mere use of the words arbitration or arbitrator in a clause will not make it an arbitration agreement if it required a further or fresh consent of the parties for reference to arbitration. To be precise the observations made by the Supreme Court are reproduced as under:“8. This Court had occasion to refer to the attributes or essential elements of an arbitration agreement in K K Modi v. K N ModiSCC 573] Bharat Bhushan Bansal vs. U.P. Small Industries Corporation Ltd.SCC 166] and Bihar State Mineral Development Corporation v. Encon BuildersLtd.SCC 418]. In State of Orissa v. Damodar DasSCC 216] this Court held that a clause in a contract can be construed as an arbitration agreement only if an agreement to refer disputes or differences to arbitration is expressly or impliedly spelt out from the clause. We may at this juncture set out the well settled principles in regard to what constitutes an arbitration agreement: Page 12 of 19 on : Fri Apr 23 23:03:54 IST 2021 C IAAP 40 2020 CAV JUDGMENT(i) The intention of the parties to enter into an arbitration agreement shall have to be gathered from the terms of the agreement. If the terms of the agreement clearly indicate an intention on the part of the parties to the agreement to refer their disputes to a private tribunal for adjudication and an willingness to be bound by the decision of such tribunal on such disputes it is arbitration agreement. While there is no specific form of an arbitration agreement the words used should disclose a determination and obligation to go to arbitration and not merely contemplate the possibility of going for arbitration. Where there is merely a possibility of the parties agreeing to arbitration in future as contrasted from an obligation to refer disputes to arbitration there is no valid and binding arbitration agreement.Even if the words arbitration and arbitral tribunalare not used with reference to the process of settlement or with reference to the private tribunal which has to adjudicate upon the disputes in a clause relating to settlement of disputes it does not detract from the clause being an arbitration agreement if it has the attributes or elements of an arbitration agreement. They are :The agreement should be in writing.The parties should have agreed to refer any disputesbetween them to the decision of a private tribunal.The private tribunal should be empowered to adjudicate upon the disputes in an impartial manner giving due opportunity to the parties to put forth their case before it.The parties should have agreed that the decision of the Private Tribunal in respect of the disputes will be binding on them.Where the clause provides that in the event of disputes arising between the parties the disputes shall be referred to Arbitration it is an arbitration agreement. Where there is a specific and direct expression of intent to have the disputes settled by Page 13 of 19 on : Fri Apr 23 23:03:54 IST 2021 C IAAP 40 2020 CAV JUDGMENTarbitration it is not necessary to set out the attributes of an arbitration agreement to make it an arbitration agreement. But where the clause relating to settlement of disputes contains words which specifically excludes any of the attributes of an arbitration agreement or contains anything that detracts from an arbitration agreement it will not be an arbitration agreement. For example where an agreement requires or permits an authority to decide a claim or dispute without hearing or requires the authority to act in the interests of only one of the parties or provides that the decision of the Authority will not be final and binding on the parties or that if either party is not satisfied with the decision of the Authority he may file a civil suit seeking relief it cannot be termed as an arbitration agreement.But mere use of the word arbitration or arbitrator in a clause will not make it an arbitration agreement if it requires or contemplates a further or fresh consent of the parties for reference to arbitration. For example use of words such as "parties can if they so desire refer their disputes to arbitration" or "in the event of any dispute the parties may also agree to refer the same to arbitration" or "if any disputes arise between the parties they should consider settlement by arbitration" in a clause relating to settlement of disputes indicate that the clause is not intended to be an arbitration agreement. Similarly a clause which states that "if the parties so decide the disputes shall be referred to arbitration" or "any disputes between parties if they so agree shall be referred to arbitration" is not an arbitration agreement. Such clauses merely indicate a desire or hope to have the disputes settled by arbitration or a tentative arrangement to explore arbitration as a mode of settlement if and when a dispute arises. Such clauses require the parties to arrive at a further agreement to go to arbitration as and when the disputes arise. Any agreement or clause in an agreement requiring or Page 14 of 19 on : Fri Apr 23 23:03:54 IST 2021 C IAAP 40 2020 CAV JUDGMENTcontemplating a further consent or consensus before a reference to arbitration is not an arbitration agreement but an agreement to enter into an arbitration agreement in future. “14.Now so far as the facts of the present case are concerned the petitioner has placed reliance on the Clause­13 contained in the terms and conditions mentioned in the quotation submitted by the respondents. The said Clause­ 13 stated that the jurisdiction of arbitration will be at High Court of Gujarat. Undisputedly the said quotation with the terms and conditions was accepted by the petitioner without any modification therein. It is also not disputed by the respondents that pursuant to the said quotation the petitioner had issued the purchase order in favour of the respondents for carrying out the dry docking work on the barge of the petitioner and that the contract as such was acted upon and implemented by the parties. 15.The bone of contention raised by Mr. Contractor appearing for the respondents is that the purchase order issued by the petitioner did not contain the arbitration clause. The Court does not find any substance in the said submission. Merely because the purchase order issued by the petitioner did not contain any terms and conditions or the arbitration clause it could not be said that there was no arbitration clause more particularly Page 15 of 19 on : Fri Apr 23 23:03:54 IST 2021 C IAAP 40 2020 CAV JUDGMENTwhen the quotation of the respondents containing the arbitration clause was accepted by the petitioner and on the basis of which the purchase order was issued by the petitioner. There is also nothing on record to suggest that the parties had contemplated a further or fresh consent for reference of disputes to the arbitration. The said Clause 13 contained in the quotation of the respondents having neither been denied nor modified by the petitioner till the entire contract was executed it can safely be concluded that both the parties were ad­idem about the said clause pertaining to the arbitration. It does not lie in the mouth of the respondents to say that the clause­13 which stated that the jurisdiction of arbitration will be at the High Court of Gujarat was not binding to them or that there was no arbitration agreement as contemplated in Section 7 of the said Act. From the said documents on record namely the quotation of the respondents and the purchase order of the petitioner it clearly transpires that both the parties intended to refer the disputes to the arbitration and agreed that the jurisdiction of the arbitration will be at the High Court of Gujarat. 16.This takes the Court to the next question as to whether the Court could appoint an Arbitrator under Section 11 of the said Act as prayed for in the petition. In the instant case the parties Page 16 of 19 on : Fri Apr 23 23:03:54 IST 2021 C IAAP 40 2020 CAV JUDGMENTthough had agreed to submit the jurisdiction of the High Court of Gujarat they had not agreed to the procedure for the appointment of an Arbitrator. Therefore it will be necessary to cursorily refer to the relevant provisions contained in Section 11 as regards the appointment of an Arbitrator in a situation when the parties though having agreed for the arbitration have not agreed on the procedure for appointing an Arbitrator. It is needless to say that Section 11 exclusively deals with the appointment of the Arbitrators. Sub­sectionthereof provides that subject to the sub­sectionthe parties are free to agree on a procedure for appointing an Arbitrator or Arbitrators. Sub­sectionprovides inter alia that if an agreed procedure had not been acted upon the parties could approach the Supreme Court or the High Court as the case may be to take necessary measure unless the agreement on the appointment procedure provides other means for securing the appointment. Sub­sectionprovides that failing any agreement referred to in sub­sectionin an arbitration with a Sole Arbitrator if the parties fail to agree on the arbitrator within thirty days from the receipt of a request made by one party from the other party to so agree the appointment shall be made on an application of the party in accordance with the provisions contained in sub­sectionon the contingencies mentioned therein having arisen the appointment is required to be made on an application of the party by the High Court in case of arbitration other than international commercial arbitration. 17.As stated earlier though the parties had agreed to submit to the jurisdiction at the High Court of Gujarat for the purpose of arbitration the procedure for the appointment of the Arbitrator was not agreed upon. It has also come on record that the petitioner had already called upon the respondents by sending a Notice of Arbitration dated 14.04.220 through e­mail calling upon them to appoint an independent and impartial Sole Arbitrator as per the provisions contained in the Act however the respondents had refused to agree to the said request. Under the circumstances in absence of any procedure having been agreed upon for appointing the Arbitrator and both the parties having failed to agree on the appointment of the Arbitrator within thirty days from the receipt of the request made by the petitioner to the respondents the case would fall under sub­sectionof Section 11 for appointment of Arbitrator by this Court. 18.In the aforesaid premises the Court in exercise of the Page 18 of 19 on : Fri Apr 23 23:03:54 IST 2021 C IAAP 40 2020 CAV JUDGMENTpowers conferred under sub­sectionread with sub­sectionand sub­section(2) of Section 11 appoints Mr. Jutice Kartikeya Thaker Former Judge of High Court of Gujarat to act as an Arbitrator to resolve the disputes between the parties. The learned Advocate Mr.Shankar appearing with Ms. Paurami Sheth for the petitioner is directed to obtain the requisite consent and declaration of Mr. Justice Thaker as required in terms of Sixth Schedule under Section 11(8) read with Section 12(1)(b) of the Arbitration and Conciliation Act 1996 as amended by the Arbitration & ConciliationAct 2015 to act as an Arbitrator within two weeks from today. On obtaining such declaration learned Advocate for the petitioner Mr. Shankar shall submit the same in the office within two weeks from today.19.In the aforestated premises and subject to the aforesaid directions the petition stands allowed accordingly. Rule is made absolute accordingly.(BELA M. TRIVEDI J) V.V.P PODUVAL SINDHU NAIRPage 19 of 19

Breach of a promise cannot said to be a false promise: Supreme Court of India

To establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman’s decision to engage in the sexual act.” This was held in the case of Subash Kumar v State of Uttar Pradesh and Anr, [Criminal Appeal No 233 of 2021], by the Hon’ble Justice Dr. Dhananjaya Y Chandrachud in the supreme Court of India. The above application was instituted under Section 482 of the Code of Criminal Procedure 1973 for quashing the charge sheet filed under Section 376 of the Indian Penal Code 1860. The FIR, which is registered on the basis of a written complaint of the second respondent states that the second respondent developed friendship with the appellant and that he assured that he would marry her. It has then stated that she was exploited physically for one and a half years and that the second respondent had also spoken to the parents and sister of the appellant. After a lapse of about a year and a half, the appellant is stated to have gone back to his home town which is Jhansi and made a phone call to the second respondent that, since he wishes to perform a “court marriage”. The respondent on reaching Jhansi, was informed by the father of the appellant that the appellant does not wish to marry her. The appellant’s father also stated that the appellant did not desire to meet her and further asked her to take some money and leave from there. The counsel for the appellant placed reliance on Pramod Suryabhan Pawar v State of Maharashtra, (2019) 9 SCC 608, and submitted that the relationship between the appellant and the second respondent was consensual in nature. He also submitted that there was absolutely no intent on the part of the appellant, when he entered upon the relationship, not to marry the second respondent nor can it be even suggested that the promise to marry was false. Thus no offence has been made out within the meaning of Section 376 of IP The counsel for the respondents submitted on the basis of the statement made by the respondent under Section 164 of CrPC that the relationship between the appellant and the second respondent was of a consensual nature and the parties were in the relationship for about a period of one and a half years. It was because the appellant had expressed a disinclination to marry the second respondent which led to the registration of the FIR.

IN THE CRIMINAL APPELLATE JURISDICTION Criminal Appeal No 2321 Arising out of SLPNo 112119 Sonu @ Subhash Kumar State of Uttar Pradesh & Anr JUDGMENT Dr Dhananjaya Y Chandrachud J This appeal by way of an SLP arises from a judgment of a learned Single Judge of the High Court of Judicature at Allahabad dated 26 September 2019 in Criminal Miscellaneous Application No 35811 of 2019. The above application was instituted under Section 482 of the Code of Criminal Procedure 1973 1 for quashing the charge sheet dated 25 April 2018 in Case No 1066 IX 19 arising out of Case Crime No 1208 under Section 376 of the Indian Penal Code 1860 2 at PS Kotwali District Mathura. The High Court dismissed the application with a direction that the appellant herein may move the trial Court to seek discharge at the appropriate stage. However the High Court directed that if the appellant moves an application for bail before the competent Court the application should be disposed of in accordance with law. In the meantime the appellant was protected against coercive action for a period of thirty days and was directed to appear before the Competent Court within the aforesaid period In order to consider the grievance of the appellant it would be necessary to advert to the contents of the FIR. The FIR was lodged by the second respondent on 7 February 2018. The FIR which is registered on the basis of a written complaint of the second respondent to the SHO PS Kotwali Mathura states that the second respondent developed friendship with the appellant and that he assured that he would marry her. It has then stated that she was exploited physically for one and a half years and that the second respondent had also spoken to the parents and sister of the appellant. It has been stated that the father of the appellant had informed the second respondent that he would arrange the marriage of the appellant with her. After a lapse of about a year and a half the appellant is stated to have gone back to his home town which is Jhansi on 5 January 2018 and made a phone call to the second respondent that since he wishes to perform a “court marriage” the second respondent may come to Jhansi. This was on the ground that the appellant could not travel to Mathura where the second respondent lived. The second respondent has alleged that she proceeded to Jhansi but on reaching the residence of the appellant she was informed by the father of the appellant that the appellant does not wish to marry her. The appellant’s father also stated that the appellant did not desire to meet her and further asked her to take some money and leave from there. The FIR further records that the second respondent was assaulted by the appellant’s sister and thrown out of the appellant’s house. The statement of the second respondent was recorded under Section 164 of CrPC. The entirety of the statement is extracted below “Statement U s 164 Cr.P.C. Name of victim: Geeta D o Ram Babu Age 25 years stated on oath that I had love affair with Sonu S o Kamlesh age 27 years for the last 1 1 2 years. He used to tell to marry with me. I got influenced by his talks. I voluntarily developed relationship of husband wife with him. Now he and his family members are refusing to marry with me. On 5 th January 2018 Sonu went to Jhansi and from there also he kept on takingwith me on phone. He called me to Jhansi and then on 21.01.2018 without informing anybody in my home I went to Jhansi on the address given by Sonu. His father met me there and told me that they are not intending to solemniz’e my marriage with Sonu and advised me to ran away from there after taking some money. Sonu’s mother Shobha and sister Neha assaulted me. On 21.1.2018 I stayed at Jhansi station and then on the trainingof 12 O clock in the night I came back to Mathura. My sole grievance is that Sonu is refusing to marry with me. I have studied upto class 6th. I have nothing more to say It is certified that the above statement has been given by the victim with her own voluntary wish and without any force or pressure Recorded by Sd . Sd _ Heard and verified Mr Amit Pawan learned counsel appearing on behalf of the appellant has relied upon a decision of this Court in Pramod Suryabhan Pawar v State of Maharashtra3. Learned counsel submitted that the relationship between the appellant and the second respondent was consensual in nature. It has been urged that a bare reading of the FIR as well as the statement under Section 164 of CrPC would indicate that there was absolutely no intent on the part of the 2019) 9 SCC 608 appellant when he entered upon the relationship not to marry the second respondent nor can it be even suggested that the promise to marry was false Hence it has been submitted that no offence has been made out within the meaning of Section 376 of IPC On the other hand Mr Simant Kumar learned counsel appearing on behalf of the second respondent supported the judgment of the High Court stating that the FIR would indicate that the complaint of the second respondent on the basis of which the FIR was registered would indicate that the second respondent had developed a friendship with the appellant who had assured that he would marry her. Mr Vishnu Shankar Jain learned counsel appearing on behalf of the State of Uttar Pradesh has similarly supported the decision of the High Court relying on the observations contained in paragraph 16 of the decision of this Court in Pramod Suryabhan Pawarwhile dealing with a similar situation the principles of law which must govern a situation like the present were enunciated in the following observations “Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations there is a “misconception of fact” that vitiates the woman’s “consent”. On the other hand a breach of a promise cannot be said to be a false promise. To establish a false promise the maker of the promise should have had no intention of upholding his word at the time of giving it...” Further the Court has observed “To summarise the legal position that emerges from the above cases the “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry two propositions must be established. The promise of marriage must have been a false promise given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance or bear a direct nexus to the woman’s decision to engage in the Bearing in mind the tests which have been enunciated in the above decision we are of the view that even assuming that all the allegations in the FIR are correct for the purposes of considering the application for quashing under Section 482 of CrPC no offence has been established. There is no allegation to the effect that the promise to marry given to the second respondent was false at the inception On the contrary it would appear from the contents of the FIR that there was a subsequent refusal on the part of the appellant to marry the second respondent which gave rise to the registration of the FIR. On these facts we are of the view that the High Court was in error in declining to entertain the petition under Section 482 of CrPC on the basis that it was only the evidence at trial which would lead to a determination as to whether an offence was established For the above reasons we allow the appeal and set aside the impugned judgment and order of the High Court dated 26 September 2019. In view of the reasons which have been adduced earlier the charge sheet dated 25 April 2018 which has been filed in pursuance of the investigation which took place shall stand quashed. The order of the trial Court dated 3 October 2018 taking cognizance shall accordingly stand quashed and set aside In view of the above order Mr Amit Pawan learned counsel appearing on behalf of the appellant states that no further step shall be taken in respect of the cross FIR which was registered against the second respondent at the behest of Pending application if any stands disposed of SECTION II S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to AppealNo(s).11218 2019 Arising out of impugned final judgment and order dated 26 09 2019 in A482 No. 35811 2019 passed by the High Court of Judicature at SONU @ SUBHASH KUMAR Petitioner(s VERSUS STATE OF UTTAR PRADESH & ANR. Respondent(s Date : 01 03 2021 This petition was called on for hearing today CORAM : HON BLE DR. JUSTICE D.Y. CHANDRACHUD HON BLE MR. JUSTICE M.R. SHAH Mr. Amit Pawan AOR Mr. Anand Nandan Adv Mr. Vishnu Shankar Jain AOR Mr. Chanakya Gupta Adv Mr. Simant Kumar Adv Mr. Ravi Prakash AOR Ms. Jaishree Raj Soni Adv Mr. Sandeep Malik Adv Vagisha Nandini Adv Mr. Vikram Singh Arya Adv UPON hearing the counsel the Court made the following O R D E R The appeal is allowed in terms of the signed reportable judgment Pending application if any stands disposed of (SAROJ KUMARI GAUR AR CUM PS COURT MASTER Signed reportable judgment is placed on the file

Cannabis would attract Section 21(c) NDPS Act, hence Section 37 to come to play: High Court Of Meghalaya

The court finds that there are no rational grounds to believe that the accused persons are not guilty of such offense. Such an opinion was held by The Hon’ble High Court Meghalaya before The Hon’ble Mr. Justice W. Diengdoh in the matter of Azibar Rahman Vs. State of Meghalaya [BA. No. 10 of 2021].  The fact of the case was related to the filing of an application by the petitioner under 439 Cr. PC r/w Section 36-A (3) of the NDPS Act. The petitioner by filing such sought bail grant to 2(two) indicted persons namely Sonowal Ali and Jahal Uddin who were arrested on 30.04.2021 in connection with Jowai PS Case No. 50(4)2021 u/s 8(e)/21(c) NDPS Act. S.I of Phramer Traffic Cell, Shri A. R. Marak lodged an FIR because, during Naka checking near Pharmer, National Highway-6, a truck that refused to stop was chased down by the police near toll gate Lalong on National Highway-6. On checking the truck, some suspicious packages which appeared to be contraband items were found. Thereof, the afore-mentioned accused persons were forwarded to judicial custody.  After thorough interrogation and investigation, it seemed that the said accused person had no knowledge regarding the contraband items. Further, both the accused were being innocent and they had no intention to tamper with the evidence. Later, it was submitted that one of the co-accused in the case was released on bail. Afterwards, it was revealed that the indicted persons Sonowar Ali and Jahan Uddin were detained along with another person Amit Sarkar on 29.04.2021, on suspicion of possessing contraband item(cannabis). Moreover, the quantity of the alleged contraband confiscated was 421 kgs of cannabis which was a narcotic substance that would also attract the provision of section 21(c) NDPS Act.  Considering all the submissions and facts, The Hon’ble High Court Meghalaya ruled out that “… In this instant case, the public prosecutor has been duly heard and as pointed out above, this Court finds that there are no reasonable grounds for believing that the accused persons are not guilty of such offence… this Court is constraint to disallow the prayer of the Petitioner for grant of bail on behalf of the accused person above named and is of the opinion that at this juncture, bail cannot be granted. Accordingly, this application is hereby dismissed as devoid of merit.” 

Serial No. 01 Regular List BA. No. 121 HIGH COURT OF MEGHALAYA AT SHILLONG Date of Decision: 01.10.2021 Azibar Rahman Vs. State of Meghalaya 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. Rahman Adv. Mr. H. Kharmih GA. ii) Whether approved for publication in press: 1. Matter is taken up via video conferencing. This is an application u s 439 Cr. PC r w Section 36 Aof the NDPS Act filed by the Petitioner herein seeking grant of bail to 2(two) accused persons namely Sonowal Ali and Jahal Uddin who were arrested on 30.04.2021 in connection with Jowai PS Case No. 50(4)2021 u s 8(e) 21(c) NDPS Act. It is the averment of the Petitioner that on 29.04.2021 an FIR was lodged by one Shri A. R. Marak S.I of Phramer Traffic Cell to the effect that during naka checking near Pharmer National Highway 6 one truck bearing registration No. AS 25 EC 3411 on being stopped for checking refused to stop which led to the police to chase the vehicle and to intercept it near the toll gate Lalong on National Highway 6. On checking the said vehicle some suspicious packages were found in the back of the vehicle under one sofa set the contents of which appears to be contraband item. Accordingly the two accused persons named above being the driver and the handyman of the said truck were arrested on 29.04.2021 and were produced before the court of the learned Special Judge NDPS West Jaintia Hills District Jowai and forwarded to judicial custody. 4. It is also averred that the accused persons are innocent and have no knowledge regarding the alleged illegal contraband found from the vehicle. The accused persons were also thoroughly interrogated during investigation and no incriminating materials was found from them and as such as per section 37 NDPS Act there is no reasonable ground to believe that the accused persons are guilty of the commission of the alleged offence. The accused persons being innocent and having both moveable and immoveable property with no intention to abscond or tamper with evidence and also being the earning hands of the family they may be accordingly enlarged on bail with any conditions that this Court may deem fit and proper to impose. Heard Mr A. Rahman learned Counsel for the Petitioner who has submitted that the accused persons are already in custody for more than 148 days and as such they may be enlarged on bail. It is further submitted that one of the co accused in this case has been released on bail. 7. Mr H. Kharmih learned GA speaking on behalf of the State Respondent has submitted that the accused persons have been arrested for possession of contraband substance that is cannabis and the quantity seized is also huge being about 422.15 kg which is more than commercial quantity and as such this application may not be allowed at this stage submits Mr. Kharmih. 8. Upon hearing the learned Counsels appearing for the parties the case dairy having been produced before this Court the same was accordingly perused. What is seen is that it is a fact that the accused persons Sonowar Ali and Jahan Uddin were apprehended along with another person Amit Sarkar on 29.04.2021 suspected to be in possession of contraband substance cannabis) which was seized from the truck they were travelling in. On due procedure being carried out as per the legal provisions they were arrested and are in judicial custody till date. The IO after the expire of 90 days has sought for extension of the period of another 90 days to complete the investigation and the Court of the learned Special Judge(NDPS) Jowai has allowed the same vide order dated 06.08.2021. It is also seen that all the three accused persons are still in judicial custody and therefore the submission of the learned counsel for the Petitioner that one of the accused has been enlarged on bail is not correct and as such even if the prayer for enlargement on bail is made on the ground of parity the same would not apply in this case. 10. Again the records would reveal that the accused persons have been arrested in connection with an offence under the NDPS Act and accordingly this application for bail is made under the provision of section 439 Cr. PC r w Section 36 ANDPS Act. However it is also to be noted that an application for bail under the NDPS Act is circumscribed by the provision of section 37 of the said NDPS Act. Section 37 NDPS Act reads as follows: “37. Offences to be cognizable and non bailable. Notwithstanding anything contained in the Code of Criminal Procedure 1973(74) a) every offence punishable under this Act shall be cognizable b) no person accused of an offence punishable for shall be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity to oppose the application for such release and ii) where the Public Prosecutor opposes the application the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit an offence while on bail. 2) The limitations on granting of bail specified in clauseof sub section 1) are in addition to the limitations under the Code of Criminal Procedure 1973or any other law for the time being in force on granting of 12. The mandatory conditions provided in section 37 is that bail cannot be granted unless two conditions are fulfilled i.e.: i) There are reasonable grounds for believing that the accused is not guilty of such offence and ii) That he is not likely to commit any offence while on bail. 13. On the touchstone of the above provisions the factual situation in the case in hand from the case diary produced before this Court would reveal that the accused person for whom bail has been prayed for are the driver and the handyman of the truck from which the alleged contraband was seized. The provision of section 50 of the NDPS Act with regard to search and seizure was also carried out as per the said provision. That the quantity of the alleged contraband recovered from the said vehicle and duly seized is about 421 kgs or so and on preliminary test the substance was found to be cannabis which is a narcotic substance would also attract the provision of section 21(c) NDPS Act and therefore section 37 comes into play. In this instant case the public prosecutor has been duly heard and as pointed out above this Court finds that there are no reasonable grounds for believing that the accused persons are not guilty of such offence. 15. In the light of the above this Court is constraint to disallow the prayer of the Petitioner for grant of bail on behalf of the accused person above named and is of the opinion that at this juncture bail cannot be granted. 16. Accordingly this application is hereby dismissed as devoid of merit. 17. Registry is directed to send back the case diary. Judge “N. Swer Stenographer”

If offending vehicle had no valid route permit, owner/insured is liable to pay the awarded amount of compensation : Jammu High Court

This was held in the judgment passed by a one bench judge comprising HON’BLE MR. JUSTICE TASHI RABSTAN, JUDGE, in the matter Gouri Shanker V. Mohd. Iqbal & ors (MA 534/2014), dealt with an issue where the petitioner filed for an appeal that was directed against the judgment and award dated 13.06.2014 delivered by the Presiding Officer, Motor Accidents Claims Tribunal, Jammu. The claimant-Gouri Shanker has been held entitled to receive compensation for an amount of Rs.3,19,000/- along with future interest @ 7.5% per annum except on the amount of loss of future income from the owner payable by insurance company with right to recover the same from the owner-insured. The facts as borne out from the record are that a Tipper bearing No.JK11- 4837, while being driven rashly and negligently, hit the appellant-claimant on 25.03.2011 at about 10.30 AM at Yard No.6, Narwal, Jammu, as a result of which received injuries and his left leg got fractured. The petitioner as per the disability certificate issued by the Board of Doctors suffered a permanent disability of 30% which when compared to whole body shall be reduced by 50%. Appellant-Gouri Shanker filed a claim petition before the learned Tribunal and the learned Tribunal passed the award Being not satisfied the appellant has filed the instant appeal seeking enhancement of the award. Since the appellant was operated upon in a hospital at Amritsar and thereafter visited Amritsar on several occasions for follow-up checkup, an attendant must have remained there with the appellant on all these occasions. However, the award shows that the amount on these counts have not been awarded in favour of appellant. the Insurance Company took the plea that the offending vehicle was being plied without a valid route permit. The question that arose for consideration is: whether the owner/insured can be held liable for payment of compensation?

HIGH COURT OF JAMMU & KASHMIR AT JAMMU Through: Mr. Jatinder Singh Adv. MA 534 2014 …. Respondent(s) Gouri Shanker Mohd. Iqbal & ors. Through: Mr. Sanjay Kumar Dhar Adv. for No.3. CORAM: HON’BLE MR. JUSTICE TASHI RABSTAN JUDGE This appeal is directed against the judgment and award dated 13.06.2014 delivered by the Presiding Officer Motor Accidents Claims Tribunal Jammu in Claim No.24 2012 whereby the claimant Gouri Shanker has been held entitled to receive compensation for an amount of Rs.3 19 000 along with pendentelite and future interest @ 7.5% per annum except on the amount of loss of future income from the owner payable by insurance company with right to recover the same from the owner insured. The facts as borne out from the record are that a Tipper bearing No.JK11 4837 while being driven rashly and negligently hit the appellant claimant on 25.03.2011 at about 10.30 AM at Yard No.6 Narwal Jammu as a result of which received injuries and his left leg got fractured. Firstly he remained 2 MA 534 2014 admitted in Bee Enn Charitable Hospital Jammu and thereafter he was operated upon in a hospital at Amritsar of Motor Vehicles Act 1988: “81. Duration and renewal of permits. 5) Where a permit has been renewed under this section after the expiry of the period thereof such renewal shall have effect from the date of such expiry irrespective of whether or not a temporary permit has been granted under clauseof section 87 and where a temporary permit has been granted the fee paid in respect of such temporary permit shall be refunded.” 4 MA 534 2014 Admittedly the offending vehicle caused the accident on 25.03.2011 at Yard No.6 Narwal Jammu and the route permit was valid for all J&K roads. The validity of route permit expired on 18.01.2011 whereas it came to be renewed on 16.06.2011 upto 18.01.2012 meaning thereby the route permit came to be renewed for a period of one year upto 18.01.2012 thus the renewal of route permit was having retrospective effect. Further as per Section 81(5) of Motor Vehicles Act 1988 where a route permit is renewed after the expiry of period thereof such renewal shall have effect from the date of such expiry. 10. Further even if it is presumed that what was pleaded by appellant Insurance Company before the learned Tribunal was correct still it cannot avoid the liability to pay the amount of compensation to the injured as the defences available to it under Section 149(2) of the Act are very limited. Non renewal of Route Permit is not the defence available to the Insurance Company to avoid liability to compensate the third party. Further enactment of Motor Vehicles Act is welfare legislation with an objective to give financial aid to the victims of motor vehicular accidents and also to the persons who are deprived of their physical capabilities because of such accidents. This legislation aids such victims or their dependants to lead a respectable life. Thus the interpretation of various sections of Motor Vehicles Act shall be towards the fulfillment of these objectives and not to block the compensation on non sustainable grounds. 11. The case before this Court is not a case where there was no Route Permit at all therefore it cannot be said that the vehicle was being plied without a route 5 MA 534 2014 12. Thus the learned Tribunal was wrong in holding that since at the time of accident the offending vehicle had no valid route permit which came to be renewed on 16.06.2011 as such the owner insured was liable to pay the awarded amount of compensation. In view of the aforesaid discussion the impugned award merits to be modified. Accordingly the impugned award is modified and it is held that besides the awarded amount the appellant shall also be entitled to an amount of Rs.20 000 being the amount incurred on transportation charges as well as the expenses incurred on the attendant. Thus in all the appellant shall be entitled to receive compensation for an amount of Rs.3 39 000 along with pendentelite and future interest @ 7.5% per annum except on the amount of loss of future income from the insurance company. Let the awarded amount be released in favour of appellant after proper verification and identification in terms of the conditions if any as contained in the impugned award. 14. Registry to send down the record of learned Tribunal along with a copy of this judgment. 15. Disposed of along with connected MA(s) if any. .08.2021 Anil Sanhotra) Tashi Rabstan) Judge ANIL SANHOTRA2021.08.10 16:46I attest to the accuracy andintegrity of this document

Mere Excuse of Procedural Aspect is no Sufficient Cause for Condonation of Delay: High Court of Jammu & Kashmir and Ladakh at Jammu

Merely saying that the delay was on account of procedural aspect, is not sufficient cause to condone the delay, as observed by the High Court of Jammu & Kashmir and Ladakh at Jammu, before the HON’BLE JUSTICE MR. TASHI RABSTAN, in the matter of State of Jammu & Kashmir vs. Lalan Yadav [SLA No. 12/2015], on 09.12.21. The facts of the case were that while HC Rattan Singh and party were on routine duty, they intercepted the respondent, Lalan Yadav, and seized 11 Kg of ganza. After the registration of an FIR, SI Niayat Ali conducted the investigation, recorded the statements and performed all the legal formalities and presented the challan before the Court of Principal Sessions Judge, Kathua on 20.03.2010, who transferred the case to the trial court on the same day. Charges were framed against the respondent under Section 8 and 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 on 21.04.2010, who pleaded not guilty and claimed to be tried. The prosecution was directed to lead evidence, post which the defense denied the occurrence after which the case was posted for advancing of arguments. The trial court delivered the judgement on 13.06.2014 whereby the respondent herein had been acquitted of the charges, drawing the conclusion that the prosecution had miserably failed to prove the case and the charges leveled against the accused. Aggrieved by the said order, the appellant has filed an appeal. As the appeal has been filed after the expiry of period of limitation, application on hand has been filed seeking condonation of delay in its filing. The appellant has also filed an application seeking leave of the Court to file the appeal against the acquittal. The Honourable High Court of Jammu & Kashmir and Ladakh at Jammu, observed that the application seeking to condone the delay in filing the Criminal Acquittal Appeal is concerned, a perusal of the file reveals that there is 148 days delay in filing the appeal. The Court noted that the applicant failed to give any cogent reason for this delay, let alone explain day-to-day delay in filing the appeal. Delay in filing appeal after the statutory period of limitation prescribed cannot be condoned as a matter of course. The party seeking condonation of delay was required to satisfy the Court that there was sufficient cause justifying condonation of delay. It was held that merely saying that the delay was on account of procedural aspect, is not sufficient cause to condone the delay.

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU SLA No. 12 2015 CRAA No. 11 2015 CONCR No. 12 2015 Reserved on 06.12.2021 Pronounced on: 09.12.2021 Through : Mr. Aseem Sawhney AAG State of J&K Versus Lalan Yadav Through : Mr. Bhavishya Sudan Advocate CORAM: HON’BLE MR. JUSTICE TASHI RABSTAN JUDGE The order of acquittal of the accused dated 13.06.2014 is sought to be challenged by the appellant State in accompanied appeal. As the appeal has been filed after the expiry of period of limitation application on hand has been filed seeking condonation of delay in its filing. The appellant has also filed an application seeking leave of this Court to file the appeal against the acquittal. Before dealing with the application seeking condonation of delay it would be appropriate to examine the impugned judgment to find out as to whether or not any interference is warranted therewith so that injustice 2 SLA No. 12 2015 CRAA No. 11 2015 CONCR No. 12 2015 may not occasion merely because of lapse on the part of the appellant State in filing the appeal within the prescribed period of limitation. The brief case of the prosecution is that while HC Rattan Singh and party were on routine naka duty they intercepted accused respondent herein Lalan Yadav and seized 11 Kg of ganza. After the registration of FIR No. 56 2010 the investigation was handed over to SI Niayat Ali who conducted the investigation recorded the statements and performed all the legal formalities and presented the challan before the Court of Principal Sessions Judge Kathua on 20.03.2010 who transferred the case to the trial court on the same day. Charges were framed against the accused respondent herein under section 8 20 NDPS Act on 21.04.2010 who pleaded not guilty and claimed to be tried. The prosecution was directed to lead evidence. The prosecution has examined as many as eight out of nine cited witnesses to prove the guilt of the accused respondent herein. Prosecution evidence was closed vide order dated 20.02.2014 and the case was posted for recording the statement of the accused respondent herein under section 342 Cr.P.C. on the same day. The statement of the accused respondent herein was recorded on 23.04.2014 who in his statement denied the occurrence and the case was posted for advancing arguments in terms of section 273 Cr.P.C. Vide order dated 23.05.2014 the trial court did not find the case to be of no evidence asked the accused respondent herein to produce evidence in defence. But the learned counsel for the accused respondent herein submitted that he does not want to produce any defence evidence. As such the file was posted for advancing arguments. During trial the statements of the prosecution 3 SLA No. 12 2015 CRAA No. 11 2015 CONCR No. 12 2015 witnesses were recorded and after hearing the learned counsel for the parties the learned Trial court delivered the judgement on 13.06.2014 whereby the respondent herein accused has been acquitted of the charges. PW Dev Singh has stated that the accused was nabbed at 10.05 am however the other prosecution witnesses have deposed the time of occurrence at approximately 6.30 am. No independent witness has been brought as a witness to prove the prosecution case. Though Investigating Officer has deposed that no independent witness was willing to join however he has failed to disclose names of the independent witnesses who are not willing to join. The resealed packets of the narcotics which has been dispatched to the FSL on 09.03.2010 has not been produced as a part of the challan by the I.O. Consequently the same has also not been proved. As per the statement of the I.O. the seized material was deposited in malkhana but neither the extracts of malkhana register are part of the challan nor the then malkhana Incharge is a witness cited in the challan. PW Shamshad Begum deposed that she took the sealed packet to Tehsildar office for resealing who in turn directed the Naib Tehsildar to reseal the same. In her cross examination she deposed that Incharge Police Post in her presence sealed the ganza packet and then handed over the same to her for resealing. Dr. Pawan Abrol Asstt. Scientific Officer has proved his FSL report dated 13.03.2010 but in cross examination he admitted that there is no mention of nature of in his report and he cannot specimen impression of each seal. ASI Mohan Lal has been cited as a witness in the challan but he has not been examined as a witness during the 4 SLA No. 12 2015 CRAA No. 11 2015 CONCR No. 12 2015 trial thereby breaking the link evidence. Therefore the Trial court came to the conclusion that the prosecution has miserably failed to proved the case and the charges leveled against the accused. I have heard learned counsel appearing for the parties and carefully perused the material on record. So far as the application seeking to condone the delay in filing the Criminal Acquittal Appeal is concerned a perusal of the file reveals that there is 148 days delay in filing the appeal. The judgment impugned came to be delivered on 13.06.2014. It is revealed that sanction to file the appeal was given on 20.11.2014 and the appeal came to be filed only on 11.02.2015. The applicant has failed to give any cogent reason for this delay let alone explain day to day delay in filing the appeal. Delay in filing appeal after the statutory period of limitation prescribed cannot be condoned as a matter of course. The party seeking condonation of delay was required to satisfy the Court that there was sufficient cause justifying condonation of delay. Merely saying that the delay was on account of procedural aspect is not sufficient cause to condone the delay. The Hon’ble Supreme Court in SLP Diary No(s).19846 2020 titled as Union of India Vs. Central Tibetan Schools Admin & Ors. decided on 04.02.2021 while dismissing it on account of delay observed as under: “We have repeatedly being counselling through our orders various Government departments State Governments and other public authorities that they must learn to file 5 SLA No. 12 2015 CRAA No. 11 2015 CONCR No. 12 2015 appeals in time and set their house in order so far as the legal department is concerned more so as technology assists them. This appears to be falling on deaf ears despite costs having been imposed in number of matters with the direction to recover it from the officers responsible for the delay as we are of the view that these officers must be made accountable. It has not had any salutary effect and that the present matter should have been brought up really takes the cake! The aforesaid itself shows the casual in which the petitioner has approached this Court without any cogent or plausible ground for condonation of delay. In fact incompetence of the petitioner nothing which has been put on record. We Governments and public authorities adopting an approach that they can walk in to the Supreme Court as and when they please ignoring the period of limitation prescribed by the Statutes as if the Limitation statute does not apply to them. In this behalf suffice to refer to our judgment in the State of Madhya Pradesh & Ors. v. Bheru LalDiary No.9217 2020 decided on 15.10.2020] and The State of Odisha & Ors. v. Sunanda MahakudaDiary No.22605 2020 decided on 11.01.2021]….” 6 SLA No. 12 2015 CRAA No. 11 2015 CONCR No. 12 2015 For the foregoing reasons I do not find any merit in the application and as such the application seeking condonation of delay deserves to be rejected and accordingly the same is dismissed. Resultantly in light of dismissal of condonation of delay application the application seeking leave to appeal as well as the Criminal Acquittal Appeal shall also stand dismissed being time barred. Pawan Angotra Judge Whether the order is reportable Yes No Whether the order is speaking Yes No

The Pith and substance of the CGST Act is on a topic upon which the Parliament has power to legislate, levy and collect GST: High Court of Delhi

Constitutionality of an enactment or any part thereof and the burden to show that there has been a clear transgression of constitutional principles is upon the person who impugns such an enactment. Further, laws are not to be declared unconstitutional on the fanciful theory that power would be exercised in an unrealistic fashion or in a vacuum or on the ground that there is a remote possibility of abuse of power. This was held in the case of Sarjat Ali v. Union of India and Anr. [W.P.(CRL) 2020/2020] by Hon’ble Justice Asha Menon in the High Court of Delhi. A writ petition has been filed challenging the constitutional validity of certain provisions of the Central Goods and Services Tax, Act, 2017. Counsel for petitioner states that the order passed by this Court in Dhruv Krishan Maggu vs. Union of India & Ors. W.P.(C) 5454/2020 is per incuriam as it is contrary to the Division Bench judgment of this Court in Rajbhushan Omprakash Dixit vs. Union of India & Anr., 2018 (1) JCC 506. The relevant observations made by this Court in Dhruv Krishan Maggu vs. Union of India & Ors. are [1] The Goods and Service Tax is a unique tax, inasmuch as the power as well as field of legislation are to be found in a single Article, i.e., Article 246A. The scope of Article 246A is significantly wide as it grants the power to make all laws ‘with respect to’ goods and service tax. [2] This Court is of the prima facie opinion that the pith and substance of the CGST Act is on a topic, upon which the Parliament has power to legislate as the power to arrest and prosecute are ancillary and/or incidental to the power to levy and collect goods and services tax. [3] Even if it is assumed that power to make offense in relation to evasion of goods and service tax is not to be found under Article 246A, then, the same can be traced to Entry 1 of List III. The term ‘criminal law’ used in the aforesaid entry is significantly wide and includes all criminal laws except the exclusions.

IN THE HIGH COURT OF DELHI AT NEW DELHI Suppl. 25 W.P.(CRL) 2020 2020 SARTAJ ALI Through Mr.Vijay Aggarwal with Mr.Syed Petitioner Urfee Haider Advocates. UNION OF INDIA & ANR. ..... Respondents Through Mr. S.V. Raju ASG with Mr.Ravi Prakash CGSC Mr.Vinay Yadav Mr.Akshay Gadeock Mr.Amit Gupta Mr.Sahaj Garg and Mr.R.Venkat Prabhat Advocates for UOI. Date of Decision: 19th January 2021 HON BLE MR. JUSTICE MANMOHAN HON BLE MS. JUSTICE ASHA MENON JUDGMENT MANMOHAN J:Crl.M.A.16841 2020Allowed subject to all just exceptions. Consequently present application stands disposed of. The petition has been heard by way of video conferencing. Present writ petition has been filed challenging the constitutional validity of certain provisions of the Central Goods and Services Tax Act W.P.(CRL) 2020 2020 2017. This Court in a similar matter in Dhruv Krishan Maggu vs. Union of India & Ors. W.P.(C) 5454 2020 has refused to pass any interim order holding that it is not inclined to interfere with the investigation at this stage and that too in writ proceedings. The relevant observations made by this Court in Dhruv Krishan Maggu vs. Union of India & Ors. are reproduced hereinbelow: i) There is always a presumption in favour of constitutionality of an enactment or any part thereof and the burden to show that there has been a clear transgression of constitutional principles is upon the person who impugns such an enactment. Further laws are not to be declared unconstitutional on the fanciful theory that power would be exercised in an unrealistic fashion or in a vacuum or on the ground that there is a remote possibility of abuse of power. ii) The Goods and Service Tax is a unique tax inasmuch as the power as well as field of legislation are to be found in a single Article i.e. Article 246A. The scope of Article 246A is significantly wide as it grants the power to make all laws ‘with respect to’ goods and service tax. iii) This Court is of the prima facie opinion that the pith and substance of the CGST Act is on a topic upon which the Parliament has power to legislate as the power to arrest and prosecute are ancillary and or incidental to the power to levy and collect goods and services tax. W.P.(CRL) 2020 2020 Even if it is assumed that power to make offence in relation to evasion of goods and service tax is not to be found under Article 246A then the same can be traced to Entry 1 of List III. The term ‘criminal law’ used in the aforesaid entry is significantly wide and includes all criminal laws except the exclusions. v) This Court at the interim stage cannot ignore the view is taken by the Gujarat High Court with regard to application of Chapter XII Cr.P.C. to the CGST Act. vi) In view of the Supreme Court judgment in Directorate of Enforcement vs. Deepak Mahajan and the aforesaid Gujarat High Court judgment the arguments that prejudice is caused to the petitioners as they are not able to avail protection under Article 20(3) of the Constitution and or the provisions of Cr. P.C. do not apply even when CGST Act is silent are untenable in vii) Reliance on “no coercive orders” by counsel for the petitioners are untenable as the Supreme Court in Union of India vs. Sapna Jain Ors. SLP 4322 4324 2019 dated 29th May 2019 has ‘spoken its mind’. viii)This Court prima facie finds force in the submissions of the learned ASG that the Central Tax Officers are empowered to conduct intelligence based enforcement action against taxpayers assigned to State Tax Administration under Section 6 of the CGST W.P.(CRL) 2020 2020 What emerges at the prima facie stage is that it is the case of the respondents that a tax collection mechanism has been converted into a disbursement mechanism as if it were a subsidy scheme. x) In view of the serious allegations this Court is not inclined to interfere with the investigation at this stage and that too in writ proceedings. At the same time innocent persons cannot be arrested or harassed. Consequently the applications for interim protection are dismissed with liberty to the parties to avail the statutory remedies. However Mr. Vijay Aggarwal learned counsel for petitioner states that the order passed by this Court in Dhruv Krishan Maggu vs. Union of India & Ors.is per incuriam as it is contrary to the Division Bench judgment of this Court in Rajbhushan Omprakash Dixit vs. Union of India & Anr. 2018JCC 506. He further submits that subsequent to the Telangana High Court judgment the High Court of Punjab and Haryana in Akhil Krishan Maggu Anr. vs. Deputy Director DGGI & Ors. C.W.P. No.24195 2019 has refused to follow the Telangana High Court judgment and passed interim orders. However this Court finds that another Division Bench of this Court in Vakamulla Chandrashekhar vs. Enforcement Directorate & Anr. W.P.(Crl.) 852 2017 dated 08th May 2017 had taken a diametrically opposite view to the one enunciated in Rajbushan Omprakash Dixit vs. Union of India & Anr. No.003 W.P.(CRL) 2020 2020 of 2018 has transferred the reference made to a larger Bench of this Court to itself. Consequently as there are two contrary Division Bench judgments it cannot be said that the order passed by this Court in Dhruv Krishan Maggu vs. Union of India & Ors.is per incuriam. Further the interim order passed by the High Court of Punjab and Haryana in Akhil Krishan Maggu & Anr. vs. Deputy Director DGGI & Ors. is not binding on this Court. Also as the Supreme Court in Supreme Court in Union of India vs. Sapna Jain & Ors. SLP4322 4324 2019 has endorsed the Telangana High Court view it cannot be urged that this Court committed an error in law in not following the High Court of Punjab and Haryana view. Accordingly on parity of reasoning the application for interim relief is dismissed in view of the order passed by this Court in Dhruv Krishan Maggu vs. Union of India & Ors.2020 2020 List the matter before the roster Bench on 18th March 2021 along with the case of Dhruv Krishan Maggu vs. Union of India & Ors.2020 2020

State cannot not hold on to erroneous, forced or inadvertent payments by bringing in the defense of limitation: Kerala High Court

The State and its authorities could not act in a Shylockian manner and squeeze money from its citizens. The Kerala High Court made this remark on observing State’s failure to return the money paid twice for a certain due by the Petitioners. The High Court presided over by J.N. Nagaresh laid down this ratio in the case of M/s. Seahorse Ship Agencies Pvt. Ltd. Vs. Union of India & Ors., [W.P. (C) No. 17924 of 2020]. The brief facts of the case are that the Petitioner i.e. a shipping agent seeking an intervention from the Court in order to obtain a refund for a payment made twice by them for certain ‘light dues’ to the Director General of Lighthouses and Lightships (DGLL). The agent contended that they made an online payment on the first attempt, but the web portal failed to generate a receipt and so the petitioner believed that the first payment made was not successful. The Petitioner manually paid the amount in the second attempt believing that the first online payment was not successful. On the following day the Petitioner received a receipt confirming the online payment. The Petitioner had made duplicate payments in 2016 but efforts to recover the same were made in 2018 and so the DGLL refused to refund the amount as it was beyond the period of limitation. Hence the Petition filed a writ petition to recover the amount paid twice by them. The Petitioner stated that the reason for the delay in filing for the refund was because their auditor had resigned. Further, relying on provisions of the Lighthouse Act, 1927, the petitioner pointed out that a limitation period was prescribed under the legislation only for making applications for excess payments, rather than for the reimbursement of an amount paid twice. The Respondents submitted that the application was for an excess payment barred by statutory limitation. The Court after analyzing the submissions was of the opinion that, “the dual payment made by the petitioner in this writ petition cannot be described as excess payment, in the sense contemplated by Section 19 of the Lighthouse Act, 1927. What is effected by the petitioner is a dual payment or duplicate payment. The petitioner was forced to make such dual payment due to the failure of the web portal system to generate a receipt, when the petitioner made the first payment through the web portal. This Court is of the view that Section 19 is not intended to operate in such circumstances. If Section 19 does not apply to the dual payment made by the petitioner, then there is no question of a period of limitation under the Customs Act for making an application for refund of the dual payment.”

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR.JUSTICE N.NAGARESH TUESDAY THE 19TH DAY OF JANUARY 2021 29TH POUSHA 1942 WP(C).No.17924 OF 2020(M M S. SEAHORSE SHIP AGENCIES PVT. LTD. PLOT NO.10A NILHAT HOUSE GROUND FLOOR J. THOMAS BUILDING BRISTOW ROAD WILLINGDON ISLAND KOCHI 682 003 REP BY ITS BRANCH IN CHARGE MR. K.C DEVADAS SRI.JOY THATTIL ITTOOP SRI.JACOB TOMLIN VARGHESE SRI.GENS GEORGE ELAVINAMANNIL SHRI.MATHEW JOSEPH BALUMMEL UNION OF INDIA MINISTRY OF FINANCE NORTH BLOCK NEW DELHI 110 001 REP. BY SECRETARY COMMISSIONER OF CUSTOMS CUSTOMS HOUSE WILLINGDON ISLAND COCHIN 682 009 DIRECTOR GENERAL OF LIGHTHOUSES AND LIGHTSHIPS DIRECTORATE GENERAL OF LIGHT HOUSES AND LIGHTSHIPS “DEEP BHAVAN” A 13 SECTOR 24 NOIDA 201 301(U.P.) A SUBORDINATE OFFICE UNDER MINISTRY OF SHIPPING UNION OF INDIA). IS IMPLEADED AS ADDITIONAL R3 AS PER ORDER DATED 25.11.2020 IN I.A. 1 2020 IN WPC R1 R3 BY SRI.K.R.RAJKUMAR C.G.C R2 BY SREELAL N. WARRIER SC CENTRAL BOARD OF EXCISE & CUSTOMS SRI P.VIJAYAKUMAR ASGI THIS WRIT PETITIONHAVING BEEN FINALLY HEARD ON 19 01 2021 THE COURT ON THE SAME DAY DELIVERED THE WP(C) No.17924 2020 2 JUDGMENT ~ ~ ~ ~ ~ ~ ~ Dated this the 19th day of January 2021 The writ petitioner a company in the business of shipping agents is before this Court seeking to direct the 2 nd respondent Commissioner of Customs to return to the petitioner the duplicate payment of ₹6 33 144 made by the petitioner under Ext.P2. The petitioner was Agent of the vessel M. V. Cape Chronos. The vessel was to call at Cochin Port Trust on 09.05.2016. The vessel was expected to arrive in the evening In the morning the petitioner remitted Light Dues amounting to ₹6 33 144 through the web portal of the Director General of Lighthouses and LightshipsNo.17924 2020 3 absence of proof of payment of Light Dues the petitioner would have faced difficulties. The petitioner therefore made a manual payment of ₹6 33 144 before the Cochin Customs for which Ext.P2 receipt was issued. On the following day the petitioner Company received receipt for the payment made online. The petitioner accordingly and unintentionally made dual payment. The petitioner would submit that though the double payment was made in the year 2016 due to the resignation of the Accountant of the petitioner soon thereafter the petitioner failed to take appropriate steps to get back the duplicate payment made. When the Auditors of the petitioner noted the dual payment the petitioner submitted Ext.P3 letter to the 2nd respondent Commissioner of Customs seeking repayment of the duplicate payment. Ext.P3 was acknowledged as per Ext.P4 dated 31.05.2018. The 2nd respondent however instead of repaying the duplicate payment advised the petitioner to file an application for refund before the Assistant Commissioner of WP(C) No.17924 2020 4 Customs on 15.10.2018. On the Commissioner s advise the petitioner filed a statutory appeal against Ext.P5 order. The Commissioner of Customs by Ext.P9 order dismissed the appeal filed under the Customs Act 1962 holding that the appeal was filed beyond the period of The counsel for the petitioner would submit that the dual payment made by the petitioner cannot be treated as excess payment as contemplated under Section 9 of the Lighthouse Act 1927. Therefore statutory limitation for claiming excess payment would not be applicable to the case The petitioner was ill advised to resort to an inappropriate WP(C) No.17924 2020 5 statutory remedy by the Customs authorities. According to the petitioner the payment made by them as per Ext.P1 was not excess payment. The claim of the petitioner is for reimbursement of “Amount paid twice”. The respondents are therefore compellable to make repayment of the amount inadvertently paid by the petitioner. The 2nd respondent filed a statement in the writ petition as directed by this Court. The 2nd respondent stated that Ext.P9 order is appealable before the CESTAT. The petitioner has not impleaded necessary parties. The 2nd respondent further submitted that Light Dues are not customs revenue though it is collected by the Customs authorities. The Customs authorities collect Light Dues on behalf of DGLL and the amounts will be transferred to DGLL. Therefore refund cannot be granted by the Customs authorities. The petitioner thereupon impleaded the DGLL as additional 3rd respondent. The additional 3rd respondent stated that a claim for refund has to be presented in ILHForm 10 in duplicate to the officer of the Customs. Repayment can be WP(C) No.17924 2020 6 made only with the special authority of Ministry of Surface Transport. Under Section 19 of the Lighthouse Act 1927 the time limit for refund claim of excess payment is six months Hence the decision made by the Customs authorities is in accordance with the provisions of the Lighthouse Act 1927 The Director General of Lighthouses and Lightships does not have any role on the subject. The additional 3 rd respondent stated that the petitioner is not legally entitled to any relief. I have heard Sri. Joy Thattil Ittoop counsel for the petitioner Sri. Sreelal N. Warriar learned Standing Counsel for the 2nd respondent and Sri. K.R. Rajkumar Central Government Counsel appearing for the additional 3rd There is no dispute that the amount payable by the petitioner towards Light Dues in respect of the vessel MV Cape Chronos arrived at the Cochin Port Trust on 09.05.2016 is ₹6 33 144 . It is also not disputed that the petitioner has made two payments towards the same Light Dues on 09.05.2016. However the application filed by the petitioner WP(C) No.17924 2020 7 for refund was rejected by the Assistant Commissioner of Customs on the ground of limitation. The appeal was also rejected on the same ground. The question to be considered is whether the delay will spoil the right of the petitioner for refund of dual payment duplicate payment. 10. Section 19 of the Lighthouse Act 1927 provides that where Light Dues have been paid in respect of any ship in excess of the amount payable under this Act no claim for refund of such excess payment shall be admissible unless it is made within six months from the date of each payment. It is relying on the said period of limitation prescribed that the Assistant Commissioner of Customs has rejected the application preferred by the petitioner. 11. The issue therefore is whether Section 19 of the Lighthouse Act 1927 would apply to the case of the petitioner The Act 1927 was promulgated for the purpose of effective management of Lighthouses by the Central Government Section 9 of the Act 1927 enables the additional 3rd respondent to levy Light Dues in respect of every ship arriving WP(C) No.17924 2020 8 at or departing from any Port in India for the purpose of providing and maintaining lighthouses for the benefit of ships voyaging to or from India or between Ports in India. 12. Section 10 of the Act enables the Central Government to prescribe rates of Light Dues by notification in the official gazette. Section 10(2) of the Act 1927 specifically provides that if Light Dues have been paid in accordance with the provisions of this Act in respect of any ship no further dues shall become payable in respect of that ship for a period of 30 days from the date on which the dues so paid became 13. Section 12 of the Act 1927 would make it clear that the levy of Light Dues is dependent on the tonnage of a ship or vessel. Sub sectionof Section 12 provides for method of ascertaining the tonnage of any ship for the purpose of levying Light Dues. Section 19 provides that where Light Dues have been paid in excess of the amount payable under this Act no claim for refund of such excess payment shall be admissible unless it is made within six months. WP(C) No.17924 2020 9 It is therefore evident that Light Dues are directly related to tonnage of the ship vessel and excess payment can occur when payment of Light Dues is made disproportionately disregarding the tonnage of the ship. Shipping companies and shipping agents are expected to measure the tonnage of the ship vessel correctly and pay Light Dues with due regard to notified rates. Excess payment of Light Dues may occur if the shipping companies agents cause mistake in the tonnage of the ship or in respect of notified rates. It is for the refund of such excess payment effected by the shipping companies shipping agents without regard to the tonnage of the ship or rate of Light Dues that a period of limitation has been prescribed under Section 19. 15. The Supreme Court had held in the judgment in Sales Tax Officer v. Kanhaiya Lal Makund Lal Saraf that refund of sales tax paid under a mistake of law could be claimed based on Section 72 of the Indian Contract Act 1872. The court examined the scope of Section 72 and held that a person who pays money either under a WP(C) No.17924 2020 10 mistake of law or of fact is entitled to recover the amount so paid and the party receiving the same is bound to repay or return it irrespective of any consideration whether the money had been paid voluntarily subject however to questions of estoppel waiver limitation or the like. That was a case where the levy was made under a law which was subsequently held to be unconstitutional and the Apex Court held that as far Section 72 was concerned there was no distinction between a tax liability and any other liability and therefore tax paid under a mistake of law under the enactment in question could be got 16. The principle of this decision was applied by the Hon ble Apex Court in State of Kerala v. Aluminium Industries Ltd. 16 STC 689]. A levy was made in violation of Article 286(1)(a) of the Constitution and the assessee claimed refund of the amount on discovery of the mistake. The assessee had not raised the question of non liability at the time the assessment was completed and the mistake was on the part of both the assessee and the WP(C) No.17924 2020 11 assessing authority. Subsequently the assessee discovered the mistake and made the claim for refund which was allowed by this Court in a petition filed under Article 226 of the Constitution. The Supreme Court observed that such payment was within the scope of Section 72 of the Contract Act and the claim for refund was to be entertained if it was made within three years from the date on which the mistake became known to the assessee who made payment by mistake. The Court went on to observe that it was the duty of the State to investigate the facts when the mistake was brought to its notice and to make refund if the mistake was proved and the claim was made within the period of limitation under Article 96 of the Limitation Act 1908. In Commissioner of Sales Tax v. Auraiya Chamber of Commerce the Hon ble Apex Court held that when tax is collected without the authority of law the State has no right to the money and that it was refundable to the assessee. The same position has been reiterated in the decisions of the Apex Court in Shri Vallabh WP(C) No.17924 2020 12 Glass Works Ltd. v. Union of Indiaand in Salonah Tea Company Ltd. v. Superintendent of Taxes AIR 1990 SC 772]. In the latter case the Court ordered refund in an appeal arising out of an application under Article 226 of the Constitution of India filed within the period of limitation. In Sri Ravi Oil Mills v. Commercial Tax Officer 1990) 77 STC 7] the Hon ble Apex Court in a similar situation where an assessee paid tax under a mistake of law and the mistake came to his knowledge years later. The assessee s approach to the High Court was unsuccessful and the High Court dismissed the writ petition on the ground that a suit for refund was time barred. The Hon ble Apex Court set aside the order of the High Court and directed refund holding that in the absence of any denial or controversy as to the date on which the assessee came to know of the mistake on his part and the excess payment he was entitled to refund of the amount collected illegally. In Mahabir Kishore v. State of Madhya Pradesh AIR 1990 SC 315] the Hon ble Apex Court considered the WP(C) No.17924 2020 13 starting point of the period of limitation of three years for a proceeding of this nature. The Hon ble Apex Court held that when money is paid under a mistake of law the period of limitation for recovery of the amount does not begin to run until the date on which the plaintiff discovers the mistake or could with reasonable diligence have discovered the mistake Article 113 of the Schedule to the Limitation Act 1963 and the provisions of section 17(1)(c) of that Act apply in such cases. 19. The dual payment made by the petitioner in this writ petition cannot be described as excess payment in the sense contemplated by Section 19 of the Lighthouse Act 1927 What is effected by the petitioner is a dual payment or duplicate payment. The petitioner was forced to make such dual payment due to the failure of the web portal system to generate a receipt when the petitioner made the first payment through the web portal. This Court is of the view that Section 19 is not intended to operate in such circumstances. If Section 19 does not apply to the dual payment made by the WP(C) No.17924 2020 14 petitioner then there is no question of a period of limitation under the Customs Act for making an application for refund of the dual payment. 20. The State and its authorities are not expected to act in a Shylochian manner and squeeze money from its citizens Levy of any tax dues should have the authority of law. If the petitioner calculated Light Dues in respect of the Vessel correctly and remitted the correct amount then Section 19 of the Act 1927 cannot be resorted to withhold an erroneous double payment or dual payment made by a citizen due to a system error or failure. 21. The State is not expected to get itself unduly enriched by erroneous or forced or inadvertent payments of money made by its citizens. The State is not expected to bring in defence of limitation in respect of such payments resulting in unjust enrichment. The claim of the petitioner for refund of the dual payment in the circumstances would not fall within the ambit of Section 19 of the Customs Act. Exts.P5 and P9 orders are therefore otiose. WP(C) No.17924 2020 15 In the circumstances the writ petition is allowed The 2nd respondent and additional 3rd respondent are directed to refund to the petitioner the dual payment made within a period of one month. Sd N. NAGARESH JUDGE WP(C) No.17924 2020 16 PETITIONERS EXHIBITS THE TRUE COPY OF THE RECEIPT DATED O9.05.2016 FOR RS 6 33 144 GENERATED BY THE WEB PORTAL OF DIRECTORATE GENERAL OF LIGHTHOUSES AND LIGHTSHIPS AND RECEIVED BY THE PETITIONER ON THE TRUE COPY OF THE RECEIPT NO.145952 DATED 9.5.2016 FOR RS 6 33 144 ISSUED BY ADMINISTRATIVE OFFICER CUSTOMS HOUSE COCHIN TO THE THE TRUE COPY OF THE LETTER DATED 31.5.2018 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT THE TRUE COPY OF THE ACKNOWLEDGEMENT DATED 31.5.2018 ISSUED BY THE 2ND THE TRUE COPY OF THE ORDER DATED 5.10.2018 PASSED BY THE ASSISTANT COMMISSIONER OF CUSTOMSTO THE TRUE COPY OF THE WRITTEN SUBMISSION FILED BY THE PETITIONER BEFORE THE COMMISSIONER OF CUSTOMS THE TRUE COPY OF THE ORDER DATED 29.7.2020 PASSED BY THE COMMISSIONER OF CUSTOMS (APPEALS

Adjudicating Authority to not become functus officio on expiry of the period of 180 days from the passing of the order of provisional attachment unless confirmed u/S 8 of PMLA: Calcutta High Court

A period of 180 days after passing of the provisional attachment by the adjudicating authority cannot obstruct it from hearing the matter specified under section 8(1) and 8(2) of PMLA. The Calcutta High Court quorum consisting of Arindam Mukherjee J. ruled that there was an inherent difference between special courts and the adjudicating authorities and there was no time limit for completing the adjudication under Section 8(2) of PMLA. The matter in Fairdeal Supplies Ltd. & Anr. VS. Union of India & Ors [W.P.A. 8232 OF 2020] arose out of delay due to the pandemic. The facts arose from an FIR registered u/S120B, 406 and 420 of IPC scheduled offence as defined under Section 2 (1) (y) of the Prevention of Money Laundering Act, 2002 (in short ‘PMLA’) an investigation under PMLA was initiated by recording an Enforcement Case Information Report (in short ECIR) number KLZO/17/2016 on 2nd December 2016 against the petitioner and its Directors for alleged commission of offence under Section 3 which is punishable under Section 4 of PMLA. The petitioners have filed this instant application as a portion of the order dated 26th march, 2021 has been according to the petitioners misused by the respondents no. 2, 3, 4 and 13 to proceed with the adjudication under Sections 8(1), 8(2) and 8(3) of PMLA. The petitioners contended through the cited judgement in M/S Vikas WSP LTD. & ors. Vs. Directorate Enforcement & anr W.P.(C)3551/2020, in support of their contention that the Adjudicating Authority with the expiry of the validity/life of an order of provisional attachment becomes functus officio and cannot proceed any further for adjudication in terms of provisions of Section 8(1), 8(2) and 8(3) of PMLA. Further reliance was also placed in Knight Riders Sports Private Limited Vs. Adjudicating Authority (PMLA)and others [WPA no. 4845 of 2021] to demonstrate the validity of the order of provisional attachment to have not been extended automatically despite its lapse with the expiry of 180 days from passing of the same in view of the order passed by the Hon’ble Supreme Court of India (In re: Cognizance of Extension of Limitation) as contended by the respondent nos. 2, 3, 4 and 13 has been rejected. The court distinguished between the role of the Special Court (u/S 43 and 44 of PMLA) and the Adjudicating Authority as completely different. The Special Court tries the matter for finding whether an offence punishable under Section 4 connected with scheduled offence, if any and hold the accused guilty of the same if finds such offence has been committed. The punishment consequent upon such finding follows. The Adjudicating Authority on the other hand makes an endeavour to find out whether the property(s) are involved in money-laundering and makes a declaration to that effect on finding it in the affirmative. Upon such declaration being made the order of provisional attachment is confirmed. The bench after treading carefully through the analysis observed that the embargo to confirm an order of provisional attachment in a given case where such order of provisional attachment has lost its force by efflux of 180 days cannot be an impediment for the Adjudicating Authority in hearing a matter in terms of section 8(1) and 8(2) of PMLA. The narrow construction of the stature as sought to be made by the petitioners, therefore cannot be accepted as it will lead to holding 180 days to be the time period for completing adjudication under Section 8(2) of PMLA.

CAN 1 OF 2021 IN WPA 8232 OF 2020 IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE THE HON’BLE JUSTICE ARINDAM MUKHERJEE. CAN 1 OF 2021 W.P.A. 8232 OF 2020 FAIRDEAL SUPPLIES LIMITED & ANR. For the petitioners Mr. Jishnu Chowdhury UNION OF INDIA & ORS. For the Respondents no. 2 3 4 13 Ms. Debjani Ray For the Respondent no. 5 Mr. Rajarshi Dutta For the Respondent no.6 Mr. Om Narayan Rai For the Respondent no.9 Mr. Sarvapriya Mukherjee Mr. Aniruddha Agarwalla .... Advocates Mr. Sumitava Chakraborty. .... Advocates Mr. Arjun Mookherjee. .... Advocates .... Advocate Mr. Rajarshi Dutta Mr. Rahul Poddar Mr. Sandip Kr. Dutta. .... Advocates For the Respondent no.10 Ms. Rituparna Sanyal For the Respondent no. 11 For the Respondent no. 12 Ms. Riti Basu Mr. Santosh Kr. Roy. .... Advocates Mr. Avishek Guha Ms. Ruchika Mall. .... Advocates Ms. Chandrani Das. .... Advocates 12.04.2021 and 13.04.2021 23rd April 2021. Heard on Judgement on Arindam Mukherjee J.: CAN 1 OF 2021 IN WPA 8232 OF 2020 This is an application inter alia for modification of the order dated 26th March 2021 passed in the Writ Petition being WPA 8232 of 2020. Although the scope of the instant application is very limited but for proper appraisal of the grounds on which the order has been sought to be modified the basic facts are stated hereinbelow: 1. On the basis of a complaint made on 14th January 2015 by Sri Pranav Kumar the then Zonal Head UCO Bank Zonal Office Gariahat Branch Kolkata an FIR was registered by Central Bureau of Investigation(CBI BS & FC) Kolkata. A charge sheet bearing number 06 2016 dated 18th August 2016 was filed before the competent Court against the petitioner no. 1 and its directors for offence under Sec. 120 B read with Sections 406 and 420 of the Indian Penal Code (y) of the Prevention of Money Laundering Act 2002 an investigation under PMLA was initiated by recording an Enforcement Case Information Report number KLZO 17 2016 on 2nd December 2016 against the petitioner no. 1 and its Directors for alleged commission of offence under Section 3 which is punishable under Section 4 of PMLA. The directors of the petitioner no. 1 have however not joined the writ petition as petitioners. The petitioner no. 2 claims to be an authorized signatory. 2. On 20th January 2020 the Deputy Director Directorate of Enforcement Government of India being an officer under the provisions CAN 1 OF 2021 IN WPA 8232 OF 2020 of Section 5of PMLA passed an order of Provisional Attachment. On 19th February 2020 a complaint being Complaint no. 12620 was filed by the said Deputy Director before the Adjudicating Authority under Section 5(5) of PMLA inter alia stating the facts of attachment and praying for confirmation of the order of provisional attachment dated 20th January 2020 under the provisions of Section 8(3) of PMLA. 3. On 19th February 2020 the Adjudicating Authority issued a notice under Section 8(1) of the PMLA. 4. The petitioners filed a writ petition on or about 7th October 2020. In the said writ petition on 21 October 2020 an interim order was passed. The operative portion of the order is set out hereunder for convenience: “This Court is of the view that since an adjournment has been prayed for on behalf of the respondents the respondent should not take any steps in terms of the impugned order until the matter is heard out on merits.” 5. The writ petition was again taken up on 5th February 2021 when the matter was fixed for hearing in view of the interim order of stay being in operation. 6. On 18th March 2021 when the matter was again taken up it was submitted on behalf of the petitioners that the petitioners intended to withdraw the writ petition as the order of provisional attachment had lapsed with the expiry of 180 days in view of the provisions of Section 5 1) of the PMLA. The petitioners’ prayer was opposed by the CAN 1 OF 2021 IN WPA 8232 OF 2020 respondents no. 2 3 4 and 13 and as such the matter was adjourned. On 22nd March 2021 the petitioners prayer for withdrawal of the writ petition on the ground that the order of provisional attachment had expired by efflux of time under the provisions of Section 5(1)(b) was again opposed by respondents no. 2 3 4 and 13 on the ground that the order of provisional attachment according to the said respondents did not expire by efflux of time in view of the order dated 8th March 2021 passed by the Hon’ble Supreme Court of India in suo motu Writ Petition No. 3 of 2020) of the Prevention of Money Laundering Act 2002 of PMLA as the same will not amount to any coercive step in terms of the provisional order of attachment. After hearing the respective submissions and considering the materials on record I find that the matter can be more effectively heard after calling for affidavits. CAN 1 OF 2021 IN WPA 8232 OF 2020 Let affidavit in opposition be filed within a period of four week from date. Reply if any thereto be filed by two weeks thereafter. Liberty to mention after expiry of six weeks for inclusion in the list under the heading “Hearing”. The directions for filing of affidavits are peremptory in nature considering the fact that the interim order is subsisting as on date.” 7. The petitioners have filed this instant application as a portion of the order dated 26th march 2021 has been according to the petitioners misused by the respondents no. 2 3 4 and 13 to proceed with the adjudication under Sections 8(1) 8(2) and 8(3) of PMLA. The portion of the order dated 26th March 2020 which the petitioners wants modification is set out hereunder: “Pendency of the writ petition will however not be an embargo on the respondents in proceeding with the complaint no. 1262 of 2020 made under the provisions of Section 5(5) of PMLA as the same will not amount to any coercive step in terms of the provisional order of attachment.” 8. Petitioners’ Submission: CAN 1 OF 2021 IN WPA 8232 OF 2020 a) The petitioners say that the order of provisional attachment dated 20th January 2020 passed under the provisions of Section 5(1) has in fact expired on or about 20th July 2020 i.e. prior to the writ petition being filed. Once the order of provisional attachment has come to an end with the efflux of 180 days from the date of passing of the order the Adjudicating Authority to whom an application had been made under Section 5(5) of PMLA has become functus officio and as such the question of proceeding for any adjudication in terms of the provisions of Sections 8(1) 8(2) and 8(3) of PMLA cannot and does not arise. If the order of provisional attachment is not there according to the petitioners the question of the Adjudicating Authority confirming such order also does not arise. Any step taken by the Adjudicating Authority under the provisions of Sections 8(1) 8(2) and 8(3) of the PMLA is without jurisdiction and an invalid action according to the petitioners. The petitioners say that the respondent nos. 2 3 4 and 13 should not be allowed to proceed with the adjudication under the provisions of Sections 8(1) 8(2) and 8(3) of PMLA in the facts and circumstances of the case as also in view of the order dated 21st October 2020. Taking advantage of the order dated 26th March 2021 no step to confirm the order of provisional attachment should be allowed to continue any further. The petitioners therefor are seeking modification of the said order. CAN 1 OF 2021 IN WPA 8232 OF 2020 b) The petitioners say that so far as the other part of the order dated 26th March 2021 is concerned the petitioners have no objection and intend to have the writ petition heard after completion of affidavits. The petitioners also say that so far as the criminal proceedings for ascertainment of scheduled offence is concerned the petitioners have no objection and the trial before the Special Court may be allowed to continue. The petitioners have relied upon a judgement dated 8th November 2020 passed by a Learned Single Judge of the High Court at Delhi in W.P.(C) 3551 2020 and 12626 2020 M S VIKAS WSP LTD. & ORS. Vs. DIRECTORATE ENFORCEMENT & ANR in support of their contention that the Adjudicating Authority with the expiry of the validity life of an order of provisional attachment becomes functus officio and cannot proceed any further for adjudication in terms of provisions of Section 8(1) 8(2) and 8(3) of PMLA. The petitioners have also relied upon an order dated 9th April 2021 passed by a Learned Single Judge of this Court in WPA no. 4845 of 2021 Knight Riders Sports Private Limited Vs. Adjudicating Authority as contended by the respondent nos. 2 3 4 and 13 has been rejected. CAN 1 OF 2021 IN WPA 8232 OF 2020 c) The petitioners further say that the complaint case having Complaint No. 1262 of 2020 which is the source from where the Adjudicating Authority is purporting to derive its jurisdiction even after lapse of the order of provisional attachment should be stayed otherwise the said Adjudicating Authority is bent upon to confirm the order of provisional attachment though the same has lapsed on expiry of 180 days from the passing of the same. 9. Submission of respondents no. 2 3 4 and 13: i) On behalf of the respondent nos. 2 3 4 and 13 the order dated 8th March 2021 passed in is relied upon and in particular paragraph 3 thereof to contend that the outer limit of 180 days for the order of provisional attachment has stood extended in view of the said order dated 8th March 2021 passed by the Hon’ble Supreme Court. The time available to the Adjudicating Authority for confirming the order of provisional attachment under Section 8(3) by terminating the proceeding shall also stand extended in view of the said order. The Adjudicating Authority is therefore free to proceed with the matter and pass necessary orders under Sec. 8(3) of PMLA by bringing the adjudication process to a logical conclusion. It is also submitted that the definition of proceeding according to Black’s Law Dictionary is “the regular and orderly progression of a lawsuit including all acts and events between the CAN 1 OF 2021 IN WPA 8232 OF 2020 time of commencement and the entry of judgment”. The meaning of the term ‘proceeding’ has also been referred from the Supreme Court on Words and Phrases wherein it appears that the term ‘proceeding’ has been described as “is a very comprehensive term and generally speaking means a prescribed scope of action for enforcing a legal right”. It is also submitted that the petitioners were required to show cause in terms of the notice dated 19th February 2020 on or before 4th May 2020 and appear before the respondent no. 13 on 4th may 2020. The mandate under Sec. 8(1) according to the respondent nos. 2 3 4 and 13 is to serve a notice of not less than 30 days. If that minimum notice period is taken into consideration then the 30 days period from 19th February 2020 expires on 20th March 2020. But from 24th March 2020 national lockdown had been declared due to pandemic. Even after withdrawal of the lockdown period owing to the pandemic the Adjudicating Authority was not functioning regularly and as such the maximum time period of 180 days to confirm the order of provisional attachment should be computed by holding that such time period has expired between 15th March 2020 and 14th March 2021 as per the order of the Hon’ble Supreme Court of India dated 8th march 2021 thereby allowing the confirmation if necessary to be completed within a period of 90 days from 15th March 2020. iii) It is further submitted on behalf of the respondent no. 2 3 4 and 13 that the adjudication under Sections 88(2) and 8(3) is not CAN 1 OF 2021 IN WPA 8232 OF 2020 only restricted to the confirmation of the provisional order of attachment but for declaration as to whether the property is in money laundering and therefor stands on an independent footing. The Adjudicating Authority as such does not become functus officio upon lapse of the order of provisional attachment with the expiry of 180 days from passing of the same. iv) The said respondents also say that the adjudication up to a stage as contemplated under Sec. 8(2) of PMLA should be at least allowed to continue in the facts of the instant case. The respondent nos. 2 3 4 and 13 further submitted that the order of the Learned Single Bench of the High Court at Delhi dated 8th November 2020 does not take into consideration the order passed by the Hon’ble Supreme Court on 8th March 2020. That apart and in any event the said judgement and order dated 8th November 2020 has been stayed by the Division Bench of the High at Delhi by an order dated 8th January 2020 in LPA 362 2020 & C.M. APPL. 30675 2020 (Directorate of Enforcement and Anr. vs. M s Vikas WSP Limited & Ors). The respondent no. 2 3 4 and 13 have also taken a point that the petitioners in the garb of an application for modification is in effect seeking a review of the order dated 26th March 2021. This is impermissible in law and on this context the said respondents cite a judgement reported in 2014 12 SCC 713CAN 1 OF 2021 IN WPA 8232 OF 2020 10. Since the scope of the application is very limited and adjudication thereof is dependent only on interpretation of the legal provisions by consent of parties I proceed to deal with the same without calling for 11. Findings: i) On a plain reading of Section 2(1)(y) and Section 3 of the PMLA it appears to me that the legislature has bifurcated the offence under PMLA into “Scheduled Offence” and “Offence of money laundering”. “Scheduled Offence” are provided in Part A of the schedule to PMLA which takes into its sweep offences under various statutes. Scheduled Offence also includes offences specified under Part B and Part C of the Schedule to PMLA. ii) The offence of money laundering on the other hand is clearly specified in Section 3 which may have some overlapping with scheduled offence but are mostly different. Section 4 of PMLA provides for punishment for money laundering. On a conjoint reading of Section 3 and 4 of PMLA it appears to me that a separate set of punishment has been clearly provided by the legislature for offence of money laundering which is different from the punishment in case of scheduled offence under different statutes wherein the punishment for offences under those statutes are specifically provided. iii) On a reading of Section 43 and 44 of the PMLA it also appears that an offence punishable under Section 4 and any scheduled offence connected to the offence punishable under that Section shall be tried by CAN 1 OF 2021 IN WPA 8232 OF 2020 the Special Court constituted for the area in which the offence has been committed. It is therefore apparent from Section 44 that an offence punishable under Section 4 and any scheduled offence connected to the offence under Section 4 shall be tried by the Special Court. The second proviso of Section 45 of PMLA also clearly provide that the Special Court shall not take cognizance of any offence punishable under Section 4 of PMLA except upon a complaint in writing made by the director or any officer of the Central Government or the State Government authorised in writing in this behalf by the Central Government. Sub Section 1A of Section 45 debars a police officer otherwise authorised under the Code of Criminal Procedure 1973 from ordinarily investigating an offence under the PMLA. Investigation “is defined in Section 2(1)(na) which includes all proceedings under PMLA conducted by the director or by an authority authorised by the Central Government under PMLA for collection of evidence. The legislature therefor by including such provisions in the PMLA has segregated the investigation and trial of an offence under PMLA or any scheduled offence connected thereto and have provided for the Court wherein such offence has to be tried. Authorities under PMLA have been specified in Section 48. The jurisdiction powers of the authorities and other officers are provided in Chapter VIII of the PMLA. On a plain reading of Section 54 of PMLA it is also clear that the legislature wanted to include officers from other departments and or agencies for fruitful assistance in the inquiry. CAN 1 OF 2021 IN WPA 8232 OF 2020 The first proviso to Section 5(1) provides that “no such order of attachment” shall be made unless in relation to the scheduled offence report has been forwarded to a Magistrate under Section 173 of Cr.P.C. Section 3 of Cr.P.C. provides for the manner in which a “Magistrate” shall be construed. Section 173 (i) of Cr.P.C. speaks about a “Magistrate” empowered to take cognizance of the offence on a police report. Since Section 45(1 A) as by implication eliminate a police officer from investigating an offence under PMLA therefore the police report under Section 173 (i) of Cr.P.C. to the Magistrate under ordinary course has to be submitted by the Director or an officer not below the rank of Deputy Director under PMLA who is authorised to investigate under PMLA. This is what has been exactly provided under the first proviso under Section 5(1) of PMLA. An exception has however been curved out under the second proviso to Section 5(1) of PMLA as to when a property can be provisionally attached even without complying with the provisions of the first proviso to Section 5(1) of PMLA. At the same time under Section 43 and 44 any offence which is punishable under Section 4 of PMLA and any scheduled offence connected thereto has to be tried by a Special Court. Cognizance of an offence cannot be taken for a second time as a Court of Original Jurisdiction under Section 193 of Cr.P.C. The role of the Magistrate to whom a report is filed under the first proviso of Section 5of PMLA therefor requires further scrutiny to ascertain whether such Magistrate has to take a passive role in committing the case by not exercising its cognizance power so that the Special Court is free to exercise the same for the first CAN 1 OF 2021 IN WPA 8232 OF 2020 time as a Court of Original Jurisdiction under Section 193 of the Cr.P.C. or that the Magistrate can take cognizance of the matter on a report under the first proviso of Section 5(1) filed before it. Since I am not required to answer this question while adjudicating the issue in hand I refrain from dealing with this point further. These are so far as trying an offence punishable under Section 4 of PMLA and a scheduled offence connected thereto are concerned. Thus it is apparent that PMLA is a Complete Code in itself for taking cognizance of an offence punishable under Section 4 of PMLA with connected schedule offences its investigation and trial. vi) This now takes me to analyse the role of the Adjudicating Authority appointed under Section 6 of PMLA as it is necessary to answer the issue involved. vii) Section 5 has a heading “Attachment of Property involved in money laundering”. Attachment has been defined in Section 2 (d) of the PMLA. However the Act nowhere defines “provisional attachment” though section 5(1) speaks of an order in writing to provisionally attach a property for a period not exceeding 180 days from the date of such order. If the Director or any other officer not below the rank of Deputy Director has reasons to believe that a property is involved in money laundering and records the same in writing on the basis of the materials in his possession may provisionally attach a property. The use of word “may” gives a discretion upon the Director or an officer not below the rank of Deputy Director to either provisionally attach a property or not to do so depending upon his perception on the basis of CAN 1 OF 2021 IN WPA 8232 OF 2020 materials available with him. The second proviso to Section 5(1) further clarifies the reasons for which a provisional attachment is required to be made ─ “if such property involved in money laundering is not attached immediately under this chapter the non attachment of the property is likely to frustrate any proceeding under this Act”. The second proviso to Section 5(1) of PMLA also authorises the officer concerned to pass an order of provisional attachment even without first complying with the provisions of the first proviso to Section 5(1) of PMLA. The difference of wording of the first and the second proviso also makes it clear that the first proviso relates to the property of a person charged of having committed a scheduled offence while the second proviso relates to property of any other person not necessarily charged of having committed a scheduled offence. It therefore appears that pending investigation when the officer concerned thinks it necessary to either provisionally attach or that non attachment of the property provisionally is likely to frustrate any proceeding may by an order in writing provisionally attach such property. The provisional attachment is therefor a temporary measure valid for a specified time unless confirmed by the Adjudicating Authority and is subject to further investigation for the purpose of trial before the Special Court. viii) The Director or an Officer not below the rank of Deputy Director while exercising jurisdiction under Section 5(1) therefor has the discretion either to provisionally attach the property or not to do so. If the officer chooses to provisionally attach the property he has to forward a copy of CAN 1 OF 2021 IN WPA 8232 OF 2020 the order along with materials in his possession to the Adjudicating The Prevention of Money Laundering Issuance of Provisional Attachment Order) Rules 2013 specifies the manner of issuance of provisional attachment order. The manner of forwarding a copy of the order of provisional attachment of property with materials as required under Section 5(2) of PMLA is provided in Rule 3 of the Prevention of Money Laundering Rules 2005. Rule 6 of the 2005 Rules provides for the period of time such order of provisional attachment the materials and copy of the reasons are required to be retained by the Adjudicating Authority. Section 5(2) of PMLA therefor does not trigger the initiation of any Adjudication under Section 8(1) of PMLA. The concerned officer on passing an order of provisional attachment has to within 30 days therefrom file a complaint before the Adjudicating Authority under Section 5(5) of the PMLA. The process of adjudication is attracted immediately on such complaint being filed under Section 5(5) of PMLA. The Adjudicating Authority upon receipt of such complaint under Section 5(5) if has reasons to believe that any person has committed an offence under Section 3 may serve a notice not less than 30 days to such person calling upon him to show cause as to why all or any of such properties should not be declared to be the properties involved in money laundering and confiscated by the Central Government. The Adjudicating Authority CAN 1 OF 2021 IN WPA 8232 OF 2020 therefor declares whether a property is involved in money laundering. The procedure to be followed for the adjudication is specified under Section 8(2) of PMLA. After completion of the adjudication process as envisaged under Section 8(2) of PMLA the Adjudicating Authority has to record a finding whether all or any of the properties referred to in the notice issued under Section 8(1) are involved in money laundering. Once this finding is arrived at and it is declared by the Adjudicating the property properties are in money laundering the Adjudicating Authority shall confirm the order of attachment under Section 5(1) of PMLA i.e. the order provisionally attaching the property. The Adjudicating Authority after conclusion of hearing under Section 8 of PMLA therefor can either declare that the property or properties are involved in money laundering or hold that they are not so. The adjudication process by the Adjudicating Authority is thus not dependent on the order of provisional attachment being in force though the initiation of adjudication under Section 8(1) of PMLA had commenced after a complaint being lodged under Section 5(5) of PMLA pursuant to an order of provisional attachment under Section 5(5) of PMLA. Even Section 8(1) of PMLA empowers the Adjudicating Authority to form a prima facie independent opinion before issuing a notice under such Section after receiving a complaint under Section 5(5) of PMLA. The adjudication by the Adjudicating Authority is therefor independent of the fact whether the order of provisional attachment on the date of completion of the adjudication under Section 8(2) of PMLA is in operation or not. CAN 1 OF 2021 IN WPA 8232 OF 2020 ix) The role of the Special Court and the Adjudicating Authority is therefor completely different. The Special Court tries the matter for finding whether an offence punishable under Section 4 connected with scheduled offence if any and hold the accused guilty of the same if finds such offence has been committed. The punishment consequent upon such finding follows. The Adjudicating Authority on the other hand makes an endeavour to find out whether the property(s) are involved in money laundering and makes a declaration to that effect on finding it in the affirmative. Upon such declaration being made the order of provisional attachment is confirmed. x) In the light of the discussion as above I am unable to agree with the view taken by a Learned Single Judge of Delhi high Court in Vikas WSP supra) cited by the petitioners that the Adjudicating Authority becomes functus officio with the expiry of 180 days time period from the date of passing the order of provisional attachment unless the Adjudicating Authority completes the adjudication and confirms the order of provisional attachment before such 180 days period. xi) In the instant case the jurisdiction of the Adjudicating Authority was attracted on a complaint under Section 5(5) being lodged after an order for provisional attachment under Section 5(1) was made. The Deputy Director under PMLA in the instant case on 19th February 2020 i.e. within 30 days from the date of passing the order of provisional attachment had filed the complaint under Section 5(5) of PMLA. The Adjudicating Authority on receiving the complaint under Section 5(5) CAN 1 OF 2021 IN WPA 8232 OF 2020 upon having reasons to believe that the petitioner no. 1 has committed an offence under Section 3 or is in possession of proceeds of crime served a notice under Section 8(1) of PMLA on 19th February 2020 upon the petitioner no. 1 and its Directors calling upon them to indicate the source of income earnings or assets out of which or by means of which the property attached under the provisions of Section 5(1) of PMLA was acquired. It is an admitted position that immediately upon expiry of the minimum 30 days’ notice period for show cause under Section 8(1) was over the country went into a national lockdown. As a natural consequence the matter being fixed on 4th May 2020 before the Adjudicating Authority for a hearing under Section 8(2) could not take place. The petitioner no. 1 also did not file any reply as required under Section 8(2) of PMLA. Before the adjudication under Section 8(2) was over the 180 days time period from the date of passing of the provisional order of attachment had expired. xii) It appears from Section 8(2) of PMLA that there is no time limit for completing the adjudication. The stipulation in Section 5(3) on a conjoint reading of the said section along with Section 8(2) also does not indicate any timeframe. However on expiry of 180 days the order of provisional attachment losses its validity unless confirmed prior to expiry of such 180 days. Thus an adjudication pursuant to a complaint under Section 5(5) of PMLA if not completed before expiry of 180 days from the date of passing of the order of provisional attachment the said order of provisional attachment at the highest cannot be confirmed under Section 8(3) if the Adjudicating Authority finds that the property CAN 1 OF 2021 IN WPA 8232 OF 2020 is involved in money laundering. The embargo to confirm an order of provisional attachment in a given case where such order of provisional attachment has lost its force by efflux of 180 days however cannot be an impediment for the Adjudicating Authority in hearing a matter in terms of section 8(1) and 8(2) of PMLA. The narrow construction of the stature as sought to be made by the petitioners therefore cannot be accepted as it will lead to holding 180 days to be the time period for completing adjudication under Section 8(2) of PMLA. xiii) Since I have already held that the Adjudicating Authority does not become functus officio on expiry of the period of 180 days from the passing of the order of provisional attachment unless such order is confirmed under Section 8(3) in view of the provisions of Section 5(3) of the PMLA the Adjudicating Authority in the instant case is free to proceed with the Complaint Case being Complaint no. 12620 till the Sec. 8(2) stage i.e. to give a finding whether the property is involved in money laundering or not. xiv) So far as the issue of the order of provisional attachment remained valid or not after expiry of 180 days due to the pandemic is concerned I keep the same open to be decided in the writ petition wherein direction for affidavits have been given without vacating the interim order passed on 21st October 2020. In fact the confirmation of the order of provisional attachment under Section 8(3) of PMLA cannot be also done in the instant case before the writ petition being finally disposed of even if the Adjudicating Authority comes to a finding that the property CAN 1 OF 2021 IN WPA 8232 OF 2020 in question is involved in money laundering in view of the interim order dated 21st October 2020. xv) The other issue raised by the respondents no. 2 3 4 and 13 that the petitioners are seeking review of the order dated 26th March 2021 does not fall for any scrutiny in the facts of the instant case though there is no dispute as to the ratio laid down in Ram Chandra Singhof PMLA but the confirmation provided under Section 8(3) of PMLA shall take place after the final hearing of the writ petition depending upon the final result. I had in fact meant this in my order dated 26th March 13. The application being CAN 1 of 2021 filed in WPA 8232 of 2020 is accordingly disposed of without any order as to costs. Urgent photostat certified copy of this judgment and order if applied for be supplied to the parties on priority basis after compliance with all necessary formalities.

Invocation of Arbitration Clause Sufficient to Prove Pre-Existing Dispute: National Company Law Appellate Tribunal, Principal Bench, New Delhi

Whether the factum of invocation of an arbitration clause in pursuance of fulfilment of contractual obligations pertaining to operational creditor and corporate debtor, was a question considered by the NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI, before a bench consisting of Justice Anant Bijay Singh, Member (Judicial) and Ms. Shreesha Merla, Member (Technical), in the matter of Hindustan Petroleum Corporation Ltd. & Anr. vs. S S Engineers & Anr. [COMPANY APPEAL (AT) (INSOLVENCY) No. 332 of 2020], on 10.01.22. The facts of the case were that considering the legal framework as a whole, i.e., provisions of Section 3(23) along with other provisions of the Insolvency and Bankruptcy Code, 2016, Learned Adjudicating Authority (National Company Law Tribunal, Kolkata Bench, Kolkata), held that the term “person” in would include sole proprietorship firm as well being eligible to file petition under Section 7 or 9. Additionally, it was held that an analysis of the genuineness of the claim of pre-existing dispute, and amount of outstanding debt, was necessary in the facts and circumstances of the case, hence, it has been so analysed on the basis of the provisional statement prepared and filed by the Corporate Debtor itself. Aggrieved by the Order dated 12.02.2020 passed by the Adjudicating Authority, the appellant preferred this appeal under Section 61 of the Insolvency and Bankruptcy Code, 2016. The Learned Counsel for the Appellants, contended that the Application for initiation of CIRCorporate Insolvency Resolution Process (CIRP) was barred by limitation. Additionally, it was argued that various Form-C’s issued by the Corporate Debtor would not amount to an ‘Acknowledgement of Debt’ so as to extend the period of limitation. Further, it was asserted that the project in question was a turnkey project and the bifurcation given in the said Purchase Order was for the purpose of calculation of tax and not otherwise. The said Purchase Orders were under the same tender and the disputes which arose were under the same tender. It was contended that the Adjudicating Authority failed to take note that the Purchase Order and the tender documents provide for a turnkey based project. Further, it was contended that there is a ‘Pre-Existing Dispute’ between the parties as the first Respondent failed to honour the terms of the Purchase Order and its terms and conditions and delayed the supply of material, failed to deploy completion contractors, delayed the execution of the project and rendered inferior and substandard quality of work and finally withdrew from the Project abandoning the site as can be seen from the correspondence and the Minutes of the Meetings held with the Operational Creditor. It was also averred that It is on account of abandoning of the project by the Operational Creditor that the Corporate Debtor had suffered huge losses and made excess payments to the sub-contractors. The Corporate Debtor had cleared all outstanding dues in a timely manner as was agreed to by the first Respondent in the Minutes of the Meetings. It was also submitted that the Corporate Debtor invoked the Arbitration clause seeking to refer the ‘disputes for adjudication by an Arbitrator’. It was also contended that the Application for initiation of CIRP was not properly authorised as the business of the sole proprietorship is not a legal entity; and that the Corporate Debtor acts as the extended limb of the Central Government and cannot be put under CIRP. The Learned Counsel for the Respondents, contended that the work is divided into three parts (a) supply (b) works contract (c) services. He contended that the C Forms/Sales Tax declaration were given for the entire supply portions and this amounts to liability and admission as stipulated under Section 18 of the Limitation Act, 1963. Reliance was placed on various precedents in order to affirm that submission of Form-C is a significant element itself as the same signifies a jural relationship between the parties. It was submitted that when liability is shown in the Balance Sheet, it itself is a clear ‘Acknowledgement of Debt’ by the Company and has the effect of extending the period of limitation under Section 18 of the Limitation Act, 1963. Additionally, it was contended that there is no ‘Pre-Existing Dispute’ and that in the provisional Financial Statement given by the Corporate Debtor, there is a clear admission of debt owed to the Operational Creditor. It was also asserted that the Arbitration Notice issued on 09.07.2016 was for the recovery of the amount as there was an Arbitration clause in the tender and does not in any manner bar any initiation of Insolvency Proceedings. The National Company Law Appellate Tribunal, Principal Bench, New Delhi, considered the relevant facts and arguments, and perused the precedents relied on, in order to come to a conclusion. It was noted from the subject matter of the tender that the execution of the Project is on a lumpsum turnkey basis, whereby and whereunder the contractor was responsible for the entire execution of the work in accordance with the specifications and to the satisfaction of the Corporate Debtor. It was acknowledged that the issue raised in the current appeal needs to be adjudicated on the touchstone of the ratio laid down by the Hon’ble Supreme Court in a catena of judgements with respect to ‘Pre-Existing Dispute’. It was noted that the law was clear that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under Section 9(5)(2)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. In the present case, it was noted that, the correspondence on record evidences that there indeed was a delay in the performance of the Contract and the final Notice was issued on 01.12.2013 by the Corporate Debtor to complete the work. It was noted that instead of payment of dues, several allegations of inadequacies were raised by the Corporate Debtor on the work. The Tribunal found it pertinent to note that on 09.07.2016, ‘prior to the issuance of the Demand Notice under Section 8 of the Code’, the ‘Operational Creditor’ invoked Arbitration pursuant to the 8 project orders issued by the ‘Corporate Debtor’, which itself substantiates the ‘Existence of a Dispute’. It was also opined that regarding whether ‘C’ Forms, issued in acknowledgement of completion of sale, would amount to ‘Acknowledgement of Debt’ as envisaged under Section 18 of the Limitation Act, 1963, the Tribunal did not wish at this juncture, to go into those aspects as it was of the considered view that there is a ‘Pre-Existing Dispute’ between the parties. The appeal was accordingly allowed, and the Order of the Adjudicating Authority was Set Aside.

National Company Law Appellate Tribunal Principal Bench New Delhi COMPANY APPEAL(INSOLVENCY) No. 3320 Arising out of Order dated 12th February 2020 passed by National Company Law Tribunal Kolkata Bench Kolkata in C.P.No. 1422 KB 2018). IN THE MATTER OF: 1. Hindustan Petroleum Corporation Ltd. Through Power of Attorney Holder Sh. Ramesh Chandra Bagh Deputy General Manager Delhi Retail Regional Office Registered Office: Petroleum House 17 Jamshedji Tata Road Churchgate Mumbai 400020 North Zone Office: 7th Floor Scope Minar Laxmi Nagar District Centre Delhi 110092. 2. Mr. Rakesh Misri Directorof HPCL Biofuels Ltd. Registered Office: Hindustan Bhavan 8 Shoorji Vallabhdas Marg Mumbai 400001. And Residence at: Framroz Court Flat No. 24 5th Floor Marine Drive Mumbai 400020 ...Appellant No. 1 ...Appellant No. 2 1. M s. S.S. Engineers A Sole Proprietorship concern through Sole Registered Office: J 179 MIDC Bhosari Pune 411026 2. HPCL Biofuels Ltd. Through Mr. Nitesh Kumar More Interim Resolution Professional Registered Office: 18 ...Respondent No. 1 2 Rabindra Sarani Poddar Court Gate No. 1 7th Floor Room No. 701 Kolkata 700001 Also at: House No. 9 Shree Sadan 1st Floor Patliputra Colony Patna 800013. ...Respondent No. 2 Ishaan Chakrabarty Mr. Vivek Pandey Mr. Ramji Srinivasan Sr. Advocate along with Mr. Shivkrit Rai Mr. Abir Roy Harshapreetha & Mr. T. Sundar Ramanathan Advocates. Mr. Ratnako Banerjee Sr. Advocate along with Mr. Avinash Das Ms. Sakshi Kapoor Mr. Ranjit Singh Mr. Swatarup Banerjee Ms. Pooja Sethi & Mr. Amar Singh Advocates for R 1. J U D G E M E N T Aggrieved by the Order dated 12.02.2020 in CP IB) No. 1422 KB 2018 passed by the Learned Adjudicating Authority ‘M s. Hindustan Petroleum Corporation Ltd.’ preferred this Appeal under Section 61 of the Insolvency and Bankruptcy Code 2016 and observed as follows: “16. Thus considering the legal framework as a whole i.e. provisions of section 3(23) along with other provisions of the IBC 2016 in our considered view in the present context in our considered view would include sole proprietorship firm as well being eligible to file petition under section 7 or 9 under IBC 2016. We further observe that these aspects and legal provisions were not argued in cases relied on by the Corporate Debtor while deciding the issue as regards to maintainability of the application term "person" Company Appeal(Insolvency) No. 3320 3 by the sole proprietorship firm hence we most humbly submit that such decisions are not applicable. 17. As regards the pre existing dispute we have gone through all the facts stated by the Corporate Debtor but having regard to the quantum of claim in respect of supplies order in our considered view the amount of disputed claim due and payable will be more than Rs. One lakh in any case. Hence such claims do not help the case of Corporate Debtor in substantial manner. Having said so we would further refer to the provisional statement attached with the letter of the Corporate Debtor dated June 25 2014 copy of which has been placed at Page 1779 of Vol. 10 of the paper book to find as to what is the factual position as per the stand of Corporate Debtor on various issues. As per this provisional statement the total purchase order value has been shown as Rs. 3818.72 lakhs. There have been several deductions including for services provided by Corporate Debtor Operational Creditor in the execution of the contract entry tax TDS WCD payment to parties payment to Operational Creditor by the Corporate Debtor sub Operational Creditor. These are normal deductions as per business practice and terms of contract. However it is noteworthy that Liquidated Damage @ 5% amounting to Rs. 190.94 lakhs Performance Bank Guarantee to the tune of 673.6 lakhs work claim of Rs. 352.00 lakhs for boiler house extension P.O. finalisation and additional work 71 lakh have also been considered. The net effect has been worked out by Corporate Debtor as Rs. 500 lakhs receivable from the Operational Creditor. If the boiler house extension and additional work are the amount the Operational Creditor gets reduced to 63.13 lakhs. Further if the amount retained for Performance Bank Guarantee is taken into consideration then the amount payable to Operational Creditor works out at Rs. 610.23 lakhs i.e. 673 63.13). As noted earlier L.D. Is applicable 5% amounting to Rs. 190 94 lakhs has already been deducted. Further amount of Rs. 400.55 lakhs in respect of Purchase Orders issued at the risk and cost of the vendor have also been deducted. Thus all recoveries for non performance default has been considered and therefore amount of Performance Bank Guarantee minus recovery i.e. 610.23 lakhs at least becomes payable by Corporate Debtor to the ignored Company Appeal(Insolvency) No. 3320 4 Operational Creditor. As an adjudicating authority in the proceedings we are not suppose to do this kind of working but to find out the genuineness of the claim of pre existing dispute and amount of outstanding debt it was necessary in the facts and circumstances of the case hence it has been so analysed on the basis of the provisional statement prepared and filed by the Corporate Debtor itself. At the cost of repetition we again state that this statement takes consideration all these disputes raised by Corporate Debtor hence the amount payable by the Corporate Debtor remains in positive which is more than one lakh ultimately that too when we have considered the project as a whole against the claim of Operational Creditor of undisputed dues of supply portion only. We have also gone through the emails which have been taken into consideration while preparing this provisional statement. Hence on the basis of material on record it cannot be said that any other dispute remains to be considered. Apart from this the fact which is crucial to note is that the Corporate Debtor has awarded new work orders to the Operational Creditor subsequently which means that all the disputes relating to this contract had been considered resolved and this fact has remained undisputed. Further Form "C"s have been issued as late as up to March 2018. We further make it clear that we have analysed the provisional statement with limited objective of admissibility of this application and this analysis cannot be considered as expression of opinion on the amount of claim in any manner which may be actually due and payable.” Emphasis Supplied) Submissions of Learned Counsel appearing on behalf of the It is strenuously argued that the Application for initiation of CIRP is ‘barred by Limitation’ as the last payment was made by the ‘Corporate Debtor’ on 07.11.2013 the Demand Notices were issued on 30.08.2017 and on 25.07.2018 and the Application was filed on Company Appeal(Insolvency) No. 3320 5  The various Form C’s issued by the ‘Corporate Debtor’ would not amount to an ‘Acknowledgement of Debt’ so as to extend the period of limitation as the Form C’s were issued for the purpose of paying concessional rate of tax under CST Act 1956 and the rules made therein. Form C does not meet requirement of an ‘Acknowledgement of Debt’ in writing for the purpose of Section 18 of the Limitation Act 1963 as there is no conscious admission of the liability to pay and the commitment towards the liability. In support of this contention the Learned Counsel placed reliance on the following Bom) 402‘Reunion Electrical Manufacturers Ltd.’ 70 SCL 52 ‘Taipack Limited’ Vs. ‘Ram Kishore Nagar Mal’ 2007ARB LR ‘Alliance Paints and Varnish Works Pvt. Ltd.’ Vs. ‘Hari Kishan ‘Zion Steel Limited’ Vs. ‘Subtleweigh Electric Pvt. Ltd.’ Gupta’168 DLT 591 2014) 1 HCC284.  The project was a turnkey project and the bifurcation given in the said Purchase Order was for the purpose of calculation of tax and not otherwise. The said Purchase Orders were under the same tender and the disputes which arose were under the same tender. The Adjudicating Authority failed to take note that the Purchase Order and the tender documents provide for a turnkey based project. Company Appeal(Insolvency) No. 3320 6 It is contended that there is a ‘Pre Existing Dispute’ between the parties as the first Respondent failed to honour the terms of the Purchase Order and its terms and conditions and delayed the supply of material failed to deploy completion contractors delayed the execution of the project and rendered inferior and substandard quality of work and finally withdrew from the Project abandoning the site as can be seen from the correspondence and the Minutes of the Meetings held with the ‘Operational Creditor’. In support of his contention the Learned Counsel placed reliance on Annexure 8 and Annexures 16 93. It is on account of abandoning of the project by the ‘Operational Creditor’ that the ‘Corporate Debtor’ had suffered huge losses and made excess payments to the sub contractors. The ‘Corporate Debtor’ had cleared all outstanding dues in a timely manner as was agreed to by the first Respondent in the Minutes of the Meetings.  The ‘Corporate Debtor’ invoked the Arbitration clause seeking to refer the ‘disputes for adjudication by an Arbitrator’. Two Demand Notices were issued by the first Respondent one on 30.08.2017 and the other on 25.07.2018 both raised a demand for payment in relation to the very same 8 Purchase Orders seen in the letter dated 09.07.2016. The Learned Counsel placed reliance on the ratio of Hon’ble Supreme Court in the following Judgments: ‘Mobilox InnovationsLtd.’ Vs. ‘Kirusa SoftwareLtd.’1 SCC 353. ‘K. Kishan’ Vs. ‘Vijay Nirman Co.Ltd.’17 SCC 662. Company Appeal(Insolvency) No. 3320 7  The Application for initiation of CIRP is not properly authorised as the business of the sole proprietorship is not a legal entity.  The ‘Corporate Debtor’ acts as the extended limb of the Central Government and cannot be put under CIRP. Submissions of Learned Counsel appearing on behalf of the Respondent ‘Operational Creditor’:  Learned Counsel strenuously contended that the work is divided into three parts supply works contract services. He contended that the C Forms Sales Tax declaration were given for the entire supply portions and this amounts to liability and admission as stipulated under Section 18 of the Limitation Act 1963.  Learned Counsel placed reliance on the Judgement of the Hon’ble High Court of Andhra Pradesh ‘M s. Electroflame Ltd. Hyderabad’ Vs. ‘M s. Mittal Iron Foundry Private Limited’ 1998 2) APLJ 6 wherein it was held that submission of Form C is a significant element itself as the same signifies a jural relationship between the parties. He submitted that when liability is shown in the Balance Sheet it itself is a clear ‘Acknowledgement of Debt’ by the Company and has the effect of extending the period of limitation under Section 18 of the Limitation Act 1963. It is also contended that the Balance Sheets of the ‘Corporate Debtor’ has not been placed on  The tender conditions provide that C Forms will have to be issued for the supply portion. The Learned Counsel drew our attention to the 8 Purchase Orders to show that there is a clear breakup of the ‘supply’ Company Appeal(Insolvency) No. 3320 8 portion ‘works contract’ portion and the ‘services’ portion and further submitted that the issuance of C Forms from the period 11.03.2015 to 27.03.2018 is an act of admission of the supply of machinery as also of their value and amounts to ‘part payment’ of the total consideration and hence the Application is not ‘barred by Limitation’. It is contended that there is no ‘Pre Existing Dispute’ and the letters relied upon by the Appellants to urge ‘Pre Existing Disputes’ are all prior to the letter dated 25.06.2014 in which an unascertained sum is claimed as damages by the ‘Corporate Debtor’. In the provisional Financial Statement given by the ‘Corporate Debtor’ there is a clear admission of debt owed ‘Operational Creditor’. The unascertained sum which is sought to be adjusted against the bill amount is a counter claim for alleged damages and cannot be adjusted against the admitted claim. Further there is no defense as against the sum which has been retained against the Purchase Orders.  The Arbitration Notice issued on 09.07.2016 was for the recovery of the amount as there was an Arbitration clause in the tender and does not in any manner bar any initiation of Insolvency Proceedings. The ‘Corporate Debtor’ did not reply to the Notice dated 09.07.2016. There is also no Reply to the first Notice under Section 8 of the Code which is dated 30.08.2017. The second Notice was replied to by letter dated 07.08.2018 in which counter claim for damages was made which is wholly a malafide and a frivolous attempt by the ‘Corporate Debtor’ and is also otherwise ‘barred by Limitation’. Company Appeal(Insolvency) No. 3320 9 A perusal of the ‘Tender Enquiry’ dated 27.06.2012 the ‘Instructions to bidders’ ‘General Conditions of Contract’ and ‘Special Conditions of Contract’ show that the tender is for ‘design engineering manufacture procurement supply transportation to site transit and storage insurance storing at site project management civil work mechanical works electrical works instrumentation work erection installation interfacing testing commissioning performance testing putting into successful commercial operation and handing over additional equipment goods and material centrifugal section including civil foundation for enhancing the boiling house capacity from 1750 TCD to 3750 TCD on Lumpsum Turnkey Basis including civil foundation work’. It is an admitted fact that the ‘Operational Creditor’ was awarded another work on 13.06.2013 and on 08.08.2013 all on a ‘lumpsum turnkey basis’. It is seen from the subject matter of the tender that the execution of the Project is on a lumpsum turnkey basis whereby and whereunder the contractor was responsible for the entire execution of the work in accordance with the specifications and to the satisfaction of the ‘Corporate Debtor’. Clause 5.1 of the General Condition of Contract stipulates that ‘as soon as the work is completed in all respects the contractor shall give Notice of such completion to the site in charge and within 30 days of receipt of such Notice the site in charge shall inspect the work and furnish the contractor with a certificate of completion indicating the defects if any and the date of completion’. Company Appeal(Insolvency) No. 3320 For better understanding of the case the Purchase Order dated 10 15.10.2012is reproduced as hereunder: Company Appeal(Insolvency) No. 3320 11 It is seen from the Purchase Order that there is a detailed breakup as stated by the Counsel for the first Respondent of the ‘supply’ portion ‘works contract’ portion and ‘services’ portion. However the fact remains that the description of the tender read together with the General Conditions of the Contract and Special Conditions of the Contract establish that it is a lumpsum turnkey based contract. It is the case of the ‘Corporate Debtor’ that the ‘Operational Creditor’ had delayed the performance of his obligations and the same was brought to the Notice of the ‘Operational Creditor’ vide Letter dated 11.08.2013. For better understanding of the case the subject letter dated 11.08.2013 is reproduced as hereunder: Company Appeal(Insolvency) No. 3320 12 Company Appeal(Insolvency) No. 3320 The issue raised in this Appeal needs to be adjudicated on the 13 touchstone of the ratio laid down by the Hon’ble Supreme Court in a catena of Judgements with respect to ‘Pre Existing Dispute’. It will be relevant to refer to para 51 of the Judgment of the Hon’ble Apex Court in ‘Mobilox Innovations Ltd.’ Vs. ‘Kirusa Software Ltd.’1 SCC 353: “51. It is clear therefore that once the operational creditor has filed an application which is otherwise complete the adjudicating authority must reject the application under Section 9(5)(2)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational creditor the " existence" of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the "dispute" is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However in doing so the Court does not need to be satisfied that the defence is likely to succeed. The Court does not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious hypothetical or illusory the adjudicating authority has to reject the In the instant case the correspondence on record evidences that there indeed was a delay in the performance of the Contract and the final Notice was issued on 01.12.2013 by the ‘Corporate Debtor’ to complete the works. The letter dated 02.01.2014 is detailed as follows: Company Appeal(Insolvency) No. 3320 14 Company Appeal(Insolvency) No. 3320 15 Company Appeal(Insolvency) No. 3320 16 Company Appeal(Insolvency) No. 3320 17 Emphasis Supplied) Company Appeal(Insolvency) No. 3320 12. From the aforenoted letter dated 02.01.2014 the Appellant ‘Corporate 18 Debtor’ raised several issues summarized as hereunder:  Erection and commissioning of electric power was not done.  No monthly Progress Report was submitted in violation of Clause 8.4.3 of the Purchase Order.  Not met a single deadline of completion.  On account of delay in execution the ‘Corporate Debtor’ had to start their own mills with old equipment and lesser capacity on 23.12.2013 and on 24.12.2013 respectively.  On account of incomplete supply of equipment the ‘Corporate Debtor’ was forced to get the same completed by making direct payments in gross violation of the terms of the contracts.  Non supply of 70% of SS Tubes of evaporator and sets and pans.  Extreme poor quality of the equipment supplied by the ‘Operational Creditor’ namely valves pumps etc.  Poor supervision poor coordination poor quality of erection work in violation of clause 15.1.2 of the terms and conditions of the contract.  Centrifugal machines supplied are still not commissioned and no follow up on behalf of the ‘Operational Creditor’. Inadequate manpower used for electrical erection work. Raw juice pumps supplied are not working at both the sides.  Condenser nozzles are not fitted properly at both the locations.  Violation of clause 1.2 of SCC in terms of non supply of instrument cables from MCC to DLS. Company Appeal(Insolvency) No. 3320  Incomplete erection of evaporator sets vertical crystallizers and DCH 19  Lapse of more than one year of award of contract for new equipment and still there are several defects and defaults. Hence clause 23 of ‘owners right to withhold payment’ has been invoked. 13. As against these disputes raised the first Respondent ‘Operational Creditor’ stated in their Reply that despite several requests and reminder letters from 2013 to 2017 the ‘Corporate Debtor’ instead of paying the due amounts raised these baseless allegations and disputes. It is the case of the ‘Operational Creditor’ that there is no ‘Existence of Dispute’ prior to the issuance of Demand Notice. In their email dated 08.04.2013 in relation to the Minutes of the Meeting the ‘Operational Creditor’ had clarified that work progress is subject to prompt payments. July 31 2013 was decided as the commissioning date subject to immediate and prompt payment made by the ‘Corporate Debtor’. The ‘Operational Creditor’ had always shown their willingness to commission and perform their obligations and their senior personnel were stationed at the site of the ‘Corporate Debtor’ and additional staff always visited from time to time. It was only because of pendency of payment of the dues that the ‘Operational Creditor’ had faced difficulties in executing the ongoing Project. The ‘Corporate Debtor’ was making ad hoc payments but not as per the bills raised. The Learned Counsel relied on the emails dated October 12 2013 November 2 2013 and November 14 2013 to buttress his contention that despite repeated reminders the ‘Corporate Debtor’ never responded. The ‘Corporate Debtor’ engaged contractors on their own to commission the plant after the receipt of all the supplied Company Appeal(Insolvency) No. 3320 material from the ‘Operational Creditor’ without their approval or consent 20 and made exorbitant payments to such contractors. No consent has been given to the ‘Corporate Debtor’ to make such payments to the subject contractors directly and therefore such an act was at their own risk. Letters dated May 05th 2014 and May 07th 2014 were addressed to the ‘Corporate Debtor’ seeking supporting documentation of the work undertaken by the contractors engaged by the ‘Corporate Debtor’ but there was no response. The ‘Operational Creditor’ only accepted the debit of Rs.1 25 80 121 against 5% entry tax which was also accordingly been deducted in calculating the principal amount of ‘Operational Debt’ of Rs.13.69 Crores. Except these debits none of the debits have been accepted or consented to by the ‘Operational Creditor’. It is also their case that fraudulent debit notes were raised by the ‘Corporate Debtor as Purchase Orders were placed with Power Former Engineer for repairs of centrifugal machine which was never part of the ‘scope of work’ of the first Respondent. It is strenuously contended by the Learned Counsel that the conduct of the ‘Corporate Debtor’ in awarding fresh Purchase Order in August 2013 at the fag end of the completion of the previous 6 orders while at the same time complaining against their performance is self contradictory and goes to show the malafide intention of the ‘Corporate Debtor’. It is the case of the ‘Operational Creditor’ that all equipment supplied was of good quality and all the valves which were procured were from a vendor mandated by the ‘Corporate Debtor’ only. If the ‘Corporate Debtor’ was dissatisfied with the quality of work or substandard material supplied there are no substantial reasons as to why new contracts were awarded at the fag end of the previous Company Appeal(Insolvency) No. 3320 6 contracts. 87% of the material and services were already completed as per 21 the billing breakup and therefore the question of short supply or purchase of additional material by the ‘Corporate Debtor’ does not arise. It is also vehemently contended that the ‘Operational Creditor’ was constrained to stop supply to the ‘Corporate Debtor’ only on account of failure of payments of pending principal dues which amounts to more than Rs.13 Crores. The ‘Corporate Debtor’ continued to raise various debit notes unilaterally without any supporting documentation for which the ‘Operational Creditor’ cannot be held responsible. 15. The ‘Operational Creditor’ vide email dated 02.02.2014 i.e. one month after the aforenoted letter sought for release of payment. Once again the ‘Corporate Debtor’ on 04.02.2014 and on 28.02.2014 reiterated the poor performance of the ‘Operational Creditor’ on account of which huge losses were incurred. 16. On 29.03.2014 it is the case of the ‘Corporate Debtor’ that the ‘Operational Creditor’ had abandoned the site and therefore the ‘Corporate Debtor’ had to take over the Project and make all the relevant payments to the vendor. The material on record shows that on 28.04.2014 another letter was addressed by the ‘Corporate Debtor’ to the ‘Operational Creditor’ citing all the inadequacies in the performance of the contract. On 19.06.2014 the ‘Operational Creditor’ once again raised the payment for Rs.13.34 Crores. 17. Section 8 of the Code reads as hereunder: creditor.—(1) An operational creditor may on the occurrence of a default deliver a demand notice of unpaid operational debtor copy of an demanding payment of the amount involved in the Company Appeal(Insolvency) No. 3320 22 default to the corporate debtor in such form and manner as may be prescribed. 2) The corporate debtor shall within a period of ten days of the receipt of the demand notice or copy of the invoice mentioned in sub sectionbring to the notice of the operational creditor— a) existence of a dispute record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such dispute b) theof unpaid operational debt— i) by sending an attested copy of the record of electronic transfer of the unpaid amount from the bank account of the corporate debtor or ii) by sending an attested copy of record that the operational creditor has encashed a cheque issued by the corporate debtor. Explanation.—For the purposes of this section a “demand notice” means a notice served by an corporate debtor demanding of the operational debt in respect of which the default has occurred. It is clear from Section 8(2)(a) that ‘Existence of a Dispute’ record of the pendency of the Suit or Arbitration Proceeding filed before the receipt of such Notice or invoice in relation to such dispute should be brought to the notice of the ‘Operational Creditor’ within 10 days of receipt of the Demand Notice. In this case the Demand Notice under Section 8 of the Code claiming a sum of Rs.13.69 Crores was issued on 25.07.2018. On 07.08.2018 the ‘Corporate Debtor’ responded to the Demand Notice referring to various communications Minutes of the Meeting and submitted that there was a ‘Pre Existing Dispute’. Though we are conscious of the fact that the ‘Corporate Debtor’ responded to the Demand Notice belatedly the fact remains that the Appellant raised the issue of ‘Existence of a Dispute’ in Company Appeal(Insolvency) No. 3320 their Reply filed before the Adjudicating Authority with all the supporting 23 It is pertinent to note that on 09.07.2016 ‘prior to the issuance of the Demand Notice under Section 8 of the Code’ the ‘Operational Creditor’ invoked Arbitration pursuant to the 8 project orders issued by the ‘Corporate Debtor’ which itself substantiates the ‘Existence of a Dispute’. In the ‘Notice’ invoking Arbitration the ‘Operational Creditor’ has stated that there is an outstanding of Rs.18 12 21 452 and has further stated that they are ready to settle the disputes through Arbitration. A brief perusal of the documents on record evidence that the ‘Operational Creditor’ admitted that the contract was on lumpsum turnkey basis and stated in the Arbitration ‘Notice’ that the ‘Corporate Debtor’ had raised issues relating to non adherence of the terms of the contract. 20. The Hon’ble Apex Court in ‘K. Kishan’ Vs. ‘Vijay Nirman Co.Ltd.’ 2018) 17 SCC 662 has observed as follows: “19. After referring to Section 8 the judgment in Mobilox Innovations case went on to hold that what is important is that the existence of the dispute and or a suit or arbitration proceeding must be pre existing i.e. it must exist before the receipt of the demand notice or invoice as the case may be. 20. The adjudicating authority therefore when examining an application under Section 9 of the Code to determine will have Innovations case SCC p. 394 para 34) 34. ...Whether there is an " operational debt" as defined exceeding Rs 1 lakh ii) Whether the documentary evidence furnished with the application shows that the aforesaid Company Appeal(Insolvency) No. 3320 24 the record of the parties or debt is due and payable and has not yet been paid iii) Whether there is existence of a dispute pendency of a suit or arbitration proceeding filed before the receipt of the demand notice of the unpaid operational debt in relation to such dispute If any one of the aforesaid conditions is lacking the application would have to be rejected. Apart from the above the adjudicating authority must follow the mandate of Section 9 as outlined above and in particular the mandate of Section 9(5) and admit or reject the application as the case may be depending upon mentioned in Section 9(5). In para 38 this Court cautioned: Innovations case SCC “38.... We have also seen that one of the objects of the Code qua operational debts is to ensure that the amount of such debts which is usually smaller than that of financial debts does not enable operational creditors to put the corporate debtor into the insolvency resolution process prematurely or initiate the process for extraneous considerations. It is for this reason that it is enough that a dispute exists between the Finally the law was summed up as follows:is clear therefore that once operational creditor has filed an application which is otherwise complete the adjudicating authority must reject the application under Section 9(5)(ii)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational creditor the "existence" of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore all that the adjudicating authority is to see at this stage is Company Appeal(Insolvency) No. 3320 25 investigation and whether there is a plausible contention which dispute" is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However in doing so the Court does not need to be satisfied that the defence is likely to succeed. The Court does not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute is not spurious fact and truly exists hypothetical or the adjudicating illusory authority has to reject the application.” 22. Following this judgment it becomes clear that operational creditors cannot use the Insolvency Code either prematurely or for extraneous considerations or as a substitute for debt enforcement procedures. The alarming result of an operational debt contained in an arbitral award for a small amount of say two lakhs of rupees cannot possibly jeopardise an otherwise solvent company worth several crores of rupees. Such a company would be well within its rights to state that it is challenging the arbitral award passed against it and the mere factum of challenge would be sufficient to state that it disputes the award. Such a case would clearly come within para 38 of Mobilox Innovations being a case of a pre existing ongoing dispute between the parties. The Code cannot be used in terrorem to extract this sum of money of rupees two lakhs even though it may not be finally in respect payable as adjudication proceedings thereto are still pending. We repeat that the object of the Code at least insofar as operational creditors are concerned is to put the insolvency process against a corporate debtor only in clear cases where a real dispute between the parties as to the debt owed does not exist …... 27. We repeat with emphasis that under our Code insofar as an operational debt is concerned all that has to be seen is whether the said debt can be said to be disputed and we have no doubt in stating that the filing of a Section 34 petition against an arbitral award shows that a pre existing dispute which culminates at the first stage of the proceedings in an award continues even after the award at least till the final adjudicatory process under Sections 34 and 37 has taken place.” Company Appeal(Insolvency) No. 3320 26 21. The facts of the present case are being examined in the light of the law laid down by the Hon’ble Supreme Court though the Learned Counsel for the ‘Operational Creditor’ has strenuously contended that the issuance of further work orders and the Notice issued by the ‘Operational Creditor’ invoking Arbitration does not amount to ‘Existence of a Dispute’ the nature of communication on record with rival contentions clarify the ‘Existence of a Dispute’ between the parties prior to issuance of the Demand Notice. It has been time and again held that ‘it is enough that a ‘dispute exists’ between the parties. 22. The communication between the parties as noted in para 10 read together with the Arbitration invoked by the ‘Operational Creditor’ we are of the considered view that there is an ‘Existence of a Dispute’ between the parties which is a genuine dispute and not a spurious patently feeble legal argument or an assertion of fact unsupported by evidence. Therefore we are of the opinion that the ratio laid down by the Hon’ble Apex Court in the aforenoted ‘Mobilox InnovationsLtd.’and ‘K. Kishan’is squarely applicable to the facts of this case. It is the case of the ‘Operational Creditor’ that the ‘Corporate Debtor’ has not filed their Balance Sheets and has categorically raised this issue in their Reply to the Appeal. We are also conscious of the fact that the ‘Corporate Debtor’ has not filed the Balance Sheets to examine the question of limitation referring to the observations of the Hon’ble Supreme Court in ‘Asset Reconstruction Company Limited’ Vs. ‘Bishal Jaiswal and Ors.’ AIR 2021 SC 5249 and in ‘Dena Bank’ Vs. C. Shivakumar Reddy and Ors.’ 167 SCL 453 (Insolvency) No. 3320 regarding whether ‘C’ Forms 27 acknowledgement of completion of sale would amount to ‘Acknowledgement of Debt’ as envisaged under Section 18 of the Limitation Act 1963 we do not wish at this juncture to go into those aspects as we are of the considered view that there is a ‘Pre Existing Dispute’ between the parties and we allow the Appeal. 24. This Appeal is allowed and the Order of the Adjudicating Authority dated 12.02.2020 is set aside. The Adjudicating Authority will now close the proceedings. The Corporate Debtor is released from all rigours of law and is allowed to function independently through its Board of Directors with immediate effect. 25. The Registry is directed to upload the Judgement on the website of this Tribunal and send the copy of this Judgement to the Learned Adjudicating Authority Justice Anant Bijay Singh] MemberMs. Shreesha Merla] MemberNEW DELHI 10th January 2022 Company Appeal(Insolvency) No. 3320

Minor contradictions in the prosecution witness cannot suppress the broader truth: Calcutta High Court

In matter holding nexus between the offence of kidnapping and the subsequent witness cross-examination, it has been observed by the Calcutta High Court Appellate Bench that any minor contradictions in witness statement shall not eclipse the solemnness of the offence. The single judge bench of Tirthankar Ghosh J. in the matter of Haradan Dutta v State of West Bengal [CRA 672 of 2016] opined that the witnesses should be given a reasonable margin of error in recollection of their statements. The present appeal has been preferred against the judgment and order of conviction and sentence dated 27.09.2016 and 28.09.2016 passed by the learned Additional District & Sessions Judge, Calcutta, in connection with Sessions Trial No. 2(4)2013 arising out of Sessions Case No. 05 of 2013 where the appellant was held guilty for commission of offences punishable under Sections 363 and 366A of the Indian Penal Code. The genesis of the case relates to a statement of the victim girl namely, Rangila Khatoon, who had been led on by the accused. The statement was recorded by Sub-Inspector of Police attached to Detective Department on 06.08.2012 pursuant to which investigation was registered under Section 366A/372/511/120B of the Indian Penal Code. The court reiterated that it was a settled proposition of law that the answers given by the accused in course of examination under Section 313 of the Code of Criminal Procedure could be used as an aid to lend credence to the evidence given by the prosecution. In the present case, it was revealed that throughout the cross-examination the truthfulness of the prosecution version was challenged to the limited extent of the veracity of the witnesses who had been deposing before the Court. It was only for the first time while being examined under Section 313 of Cr.P.C. that the accused took a plea. The court while referring the literature u/S 363 of IPC turned to the judgment in Thakorlal D. Vadgama Vs. State of Gujarat, (1973) 2 SCC 413 wherein it was construed that the word “takes” does not necessarily connote taking by force and it was not confined only to use of force, actual or constructive. This word merely means, “to cause to go”, “to escort” or “to get into possession”. No doubt it does mean physical taking, but not necessarily by use of force or fraud. The word “entice” seems to involve the idea of inducement or allurement by giving rise to hope or desire in the other. This can take many forms, difficult to visualise and describe exhaustively; some of them may be quite subtle, depending for their success on the mental state of the person at the time when the inducement is intended to operate. Needless to state that the victim apart from being a minor was illiterate, below the poverty level (as the evidence reflects that she was working as a maid servant) and the evidence was recorded after a considerable period of time since the commission of the offence. So, the contention of the appellant that the complainant being the victim has consistently changed her stand is to be viewed with regard to her ability to present all the facts in a chronological manner, which in fact, is impossible if a true set of facts are to be placed before a Court of law. The veracity of the evidence of the victim, so far as the core allegations are concerned are consistent and minor contradictions in this case cannot suppress the ring of truth in her version

IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE THE HON’BLE JUSTICE TIRTHANKAR GHOSH CRA 6716 Haradhan Dutta vs. State of West Bengal & Anr. For the Appellant For the State of West Bengal Heard on : 12.02.2021 19.02.2021 26.02.2021 Mr. Jayanta Narayan Chatterjee Mr. Apalak Basu Mr. Nazir Ahmed Ms. Swagata Das Ms. Nandini Chatterjee Ms. Jayashree Patra Ms. Chandrima Roy Karmakar Mr. Avik Ghatak 05.03.2021 & 12.03.2021 30th April 2021. Judgment on Tirthankar Ghosh J: The present appeal has been preferred against the judgment and order of conviction and sentence dated 27.09.2016 and 28.09.2016 passed by the learned Additional District & Sessions Judge F.T. Court No.II Bichar Bhawan Calcutta in connection with Sessions Trial No. 2(4)2013 arising out of Sessions Case No. 013 where the appellant was held guilty for commission of offences punishable under Sections 363 and 366A of the Indian Penal Code. accused as under : The learned Trial Court was thereafter pleased to sentence the i. The convict Haradhan Dutta is sentenced to suffer imprisonment for five years and to pay fine of Rs.10 000 for the offence under Section 363 of I.P.C. i.d. to suffer R.I. for six months. ii. The convict Haradhan Dutta is also sentenced to suffer R.I. for sevenyears and to pay fine of Rs.10 000 i.d. to suffer R.I. for six months for the offence under Section 366A of I.P.C. The genesis of the case relates to a statement of the victim girl namely Rangila Khatoon recorded by Sub Inspector of Police attached to Detective Department on 06.08.2012 pursuant to which Burtolla Police case No. 344 2012 dated 06.08.2012 was registered for investigation under Section 366A 372 511 120B of the Indian Penal Code. The statement of the victim which has been treated to be the First Information Report of the instant case is as follows: “My name is Rangila Khatoon. I am 14 years old. My residential address is Village : Nohalberia Post Batul P.S. Bagnan District: Howrah. I have studied upto class V in Nohalberia School. My father Taj Mohammad and mother Sabana Begam live in Lucknow. My two younger brothers and a sister also live in Lucknow with father and mother since long. I visited there 2 3 times. My father works in a hotel there. I live with my grand mother Nurbanu Begum in our village. Our financial condition is not stable. As my grandmother was unable to afford my studies I had to engage myself as a house maidfor sometimes. Almost 15 20 days back as I rang my father he told me to go to Lucknow to stay with them. Since our Eid festival is ensuing so I was been to visit my father and mother. Today 6.8.12) in order to go to Lucknow I set off from home alone in the morning. The train was scheduled to depart in the night still I left home well before. When I stepped down on platform no. 11 in the Howrah Station a man approached me and asked my where abouts. I told him all. The man told me that I had enough time in hand before the schedule departure of my train to Lucknow. He told me to accompany him to one of his friends house and after spending some time there he himself would come to back with me to help me in boarding illegible train. The man introduced himself as a police personnel and that is why I trusted him. After that he brought me to Kolkata at about 2.30 P.M. by availing the ferry service from Howrah. After reaching Kolkata he hired an autorickshaw and took me to a place which was very crowded and where I saw something like rail tracksand left the place.” The Investigating Authority on completion of the Investigation submitted charge sheet against the appellant under Sections 363 366A of the Indian Penal Code consequently the case was committed to the Court of Sessions by the ACMM Calcutta. The learned Chief Judge City Sessions Court Calcutta thereafter transferred the case to the learned Trial Court i.e. Additional District & Sessions Judge F.T. Court No.II Bichar Bhawan Calcutta for enquiry trial and disposal. The learned Trial Court on or about 04.04.2013 after perusal of the documents relied on by the prosecution and hearing the accused was pleased to frame charge under Sections 363 and 366A of the Indian Penal Code. The contents of the charge was read over and explained to the accused to which he pleaded not guilty and claimed to be tried. The prosecution in order to prove its case relied on 12 witnesses and 10 documents which were marked as Exhibits. The accused however did not tender any defence witness or relied upon any document in support of its case. However a plea was taken up regarding innocence at the stage of Section 313 of the Code of Criminal Procedure took the sit beside her and asked her name and where she would be going. After knowing that she would be going to Lucknow the person stated that the train was at night and whether she had any food. The said person offered her food which she refused. The witness further stated that the accused was constantly disturbing her and as such she said that she would be informing the police authorities when the accused represented that he himself was a police and in order to convince her he brought out a card from his pocket. As the accused was wearing police like uniform the witness believed him to be a police and came outside the station with him for food. The accused thereafter stated that the food available at the station was not good and asked her to go towards the Ferry Ghatwho used to reside with her at Goalberia under P.S. Bagnan. According to the witness the parents of PW1 used to reside at Lucknow. She also stated that she has submitted documents to the Police Authorities and would be able to identify the same as her L.T.I. was affixed on it. The witness further narrated that in the month of August on Monday when Roza was going on PW1 was going to her parent’s house at Lucknow when a person representing himself as a Police Officer offered to escort her up to a train but she was taken to a different place. She categorically stated that PW1 was induced by the accused and the accused tried to sell her however she was rescued by local people who informed the Police Station. Additionally she received information from Bagnan Police Station and thereafter went to Lalbazar and also the Home where the victim has been kept. PW5 Baby Agarwal deposed that she knew PW1 who is aged about 12 13 years and on 06.08.2012 which was a Monday she went to Mandir and after returning back when she was sitting in front of her house she saw the accused along with PW1 entering in a room and immediately returning from there. The witness further stated that she somehow caught hold of the hand of PW1 and pulled the accused by back collar of the shirt. At that time the accused told her to leave him as he was a Police Officer when the witness called the Members of Durbar Mahila Samity situated at the opposite side of her house. The witness narrated whole of the incident to the Members of the Samity and handed over both the accused and the victim PW6 Cornelius Gomes is a seizure list witness who signed in the seizure list of the school certificate and his signature was marked as Exb.1 PW1) to them. by the Court. PW7 Tarun Mukherjee deposed that on 06.08.2012 when he had been for field work he found a crowd in front of 438 A Rabindra Sarani where he also found that a minor girl and a gentleman were standing. In order to save the aforesaid two persons from public assault they were brought to the clinic. On inquiry the minor girl stated that she was at a platform at Howrah Station and she was brought by that man on the promise that she would be offered a job at somebody’s house. The witness also stated that the accused on inquiry replied that he was employed at Howrah Police when his Identity Card was demanded initially he refused but subsequently he showed the same to some of the office staff. The witness also stated that from the I.D. Card it was reflected that the same was issued by Rail Civil Defence. The accused also represented to each of them that whenever any minister came to inaugurate any foundation stone he accompanied him. The name of the accused is Haradhan Dutta. The witness identified the accused in Court and further stated that Babli Bhattacharjee Sunita Das and Arati Biswas were also present there. Additionally the witness stated that the incident was informed to Mita Mukherjee who contacted the Police Authorities and also asked them to take the minor and the accused to their office situated at Nilmoni Mitra Street. Thereafter Police Officers from Lalbazar I.T. Section arrived and interrogated both of them and they were taken to the Police Station. The witness was asked to sign on the rescue memo and memo of arrest which were marked as Exbt.2 and Exbt.3 respectively. The witness identified his signature on the documents. PW8 Nabanita Adhikary stated that she was posted at Calcutta Medical College & Hospital as demonstrator. According to her on 14.08.2012 Rangila Khatoon was brought and identified by lady constableMamata Ghosh and PW1 was examined in presence of Mrs. Soma Guha Roy. She further stated that “On examination I found that multiple tear at 3 and 5 O’clock position and it was healed up on hymen. After examination I gave my detailed finding in my report. I also gave finding that she had no sex experience before clinically she was not pregnant. There was no injury in her body on private parts. Considering the physical finding dental data and data of radiological examination together I am of the opinion that victim was aged between 12 14 years at the date of her radiological examination i.e. on 23.08.2012. This is the said report bearing my signature with official seal.” The report was marked as Exbt.5 and the witness also stated that the signature of the victim as well as Soma Guha Roy and lady constable Mamata Ghosh is bearing on the said report. PW9 Chandraprabha Chakraborty Metropolitan Magistrate 16th Court Calcutta deposed that on 18.08.2012 as per order of Ld. A.C.M.M. Calcutta she recorded the statement of the victimunder Section 164 of the Code of Criminal Procedure in connection with C C No.344 dated 06.08.2012 under Sections 366A 372 511 120B of I.P.C. She categorically deposed that the statement was recorded in her chamber after observance of legal formalities and before recording such statement the victim was examined as to whether she could give rational answer and being satisfied she proceeded to record the statement. After recording the statement she appended necessary certificate and obtained the signature of the victim on each and every page. She also signed on every page of the statement. The witness identified the statement recorded by her in handwriting which bears her signature and same was marked as PW10 Mamata Ghosh lady constable No. 314 attached to I.T. Section D.D. Lalbazar. The witness stated that on 06.08.2012 a raiding team proceeded from her department wherein she was member and at about 4 4.30 p.m. as per direction of O.C all the members went to 438A Bidhan Sarani Rabindra Sarani. According to her the premise was a brothel 12 situated at Sonagachi area where a girl aged about 13 14 years along with one person aged 50 years was surrounded by the local persons. The witness also stated that some Members of Durbar Mahila Samity were also present at the place. The O.C. asked the girl about her name the girl stated her name to be Rangila Khatoon and on being asked how she arrived at this place the girl stated she was waiting at Howrah Station to go to Lucknow to meet her parents and the aged person told her that the train to Lucknow will come at night and induced the girl by stating that he had a friend’s house nearby and told her to accompany him. The witness also stated that instead of taking her to the friend’s house the accused brought her to Sonagachi. On inquiry the accused stated his name to be Haradhan Dutta. The witness identified the accused in court and stated that the girl was thereafter taken to a home. PW11 Brojendra Nath Kayal is a Plan Maker attached to D.D. Lalbazar who prepared rough sketch map which was marked as Exbt.7 and also the computerised final sketch map which was marked as Exbt.8. Learned Advocate for the appellant challenged the charges which were framed under Sections 363 366A of the Indian Penal Code and submitted that none of the charges are applicable in respect of the evidence which were adduced by the prosecution. In order to substantiate his arguments he has filed a written notes of argument wherein the points canvassed are. Taking away the minor from the lawful guardianship. Inducement of the victim to accompany the petitioner to a brothel recovery of the petitioner from a brothel. iii) Recovery of the petitioner from a brothel. The appellant having the intent reason to believe that the victim may be forced to indulge in sexual inter course with other person against her will. Apart from canvassing the aforesaid points the Learned Advocate also submitted that the Learned Trial Court failed to take into account the defence version which was answered by the appellant in reference to question No. 9 of Section 313 of the Code of Criminal Procedure. Learned Advocate argued that the prosecution by way of evidence adopted to establish that the offence was initiated at Howrah Railway Station the same continued till the appellant was nabbed at or around Rabindra Sarani. He emphasised that from the deposition of the victim girlit is seen that she intended to board a train to Lucknow and learnt that the same is at night so she was waiting at the platform when the appellant introduced himself to be a police and offered food to her. In view of such evidence on record it has been submitted that there is hardly any material to show that there was any inducement force upon the victim on the part of the appellant for taking her away from the lawful guardianship of her grandmother. To substantiate the second point the appellant argued that the evidence of the prosecution witnesses taken as a whole do not establish any iota of material that the victim girl was taken to a brothel. The evidence which has been canvassed by the prosecution according to the appellant show that the victim was passing through a narrow lane where she saw well dressed girls standing there. As such the place of occurrence raises a doubt regarding the version of PW2 PW3 and PW7 to introduce themselves as Members of Durbar Mahila Samanay Committee or clinic attendant of the said organization. To address the third point the appellant has questioned the place from where the victim was recovered. According to him the prosecution has constantly changed the place of occurrence or varied the same from a road a shop room brothel and the Office of the particular NGO. It has also been submitted that non examination of witnesses have prejudiced the appellant as the prosecution witnesses were bent upon to see the accused convicted as there is a lack of truth in their version and the evidence as narrated by different witnesses do not raise a reasonable suspicion for convicting the appellant. Learned Advocate further submits that the provisions of Sub section 363 and Section 366A of the Indian Penal Code are hardly applicable in the background of the evidence which is appearing on record and the Learned Trial Court erroneously arrived at such conclusion without taking into account the defence which has been canvassed by the appellant in his examination under Section 313 of the Code of Criminal Procedure. Learned Advocate for the appellant also relied upon the following judgments: Iqbal Vs. State of Kerala 12 SCC 724 Sannaia Subba Rao and Ors. Vs. State of Andhra Pradesh 17 SCC 225 Veerasamy Vs. State Equivalent Citation : 2019 MLJ Crl)472 Golapi Bibi & Anr. VS. State of Assam 2004 CriLJ 2209 2 GLR 338. Learned Advocate for the State opposed the contention on behalf of the appellant and submitted his written notes of argument. Learned Advocate emphasised that there are ample materials on record which would be evident from the deposition of PW1 and PW4 that the victim was minor on the date of incident and she was allured induced and diverted from her lawful guardianship. According to the Learned Advocate the evidence of PW1 PW2 PW3 PW5 and PW7 and the statement of the victim under Section 164 of the Code of Criminal Procedure taken together would irresistibly reach to one conclusion that the appellant allured the victim while introducing himself as a police personnel and on the garb of providing food job forced her to cross the river which is opposite to the Railway Station and with the aid of Auto rickshaw took her to an area whose introduction is evident from the statement of the victim. It is also evident in the evidence of these 5 witnesses that the appellant had taken her to a building and thereafter came down and was intercepted by the members of the said Durbar Mahila Samanay Committee. It has also been submitted that the evidence of the case must be taken as a whole and minor contradictions which has been emphasised by the appellant cannot be made the foundation of a case for arriving at its conclusion. The Learned Advocate also stated that the appellant has failed to show that there was any previous enmity between the victim who is 15 years old and the appellant for falsely implicating him in the instant case neither any enmity has been shown in respect of the members of the Durbar Mahila Samanay Committee who intercepted the accused initially and followed him while he was entering the house at Rabindra Sarani and coming down thereafter. In order to substantiate his case the Learned Advocate for the State relied upon the following judgments: State of Haryana Vs. Raja Ram AIR 1973 SC 819 Taru Das Vs. State of Tripura 2008 Cri LJ 3143 Kailash Laxman Khambar Vs. State of Maharashtra 2010 Cri LJ 3255 Sakina Bibi Vs. State of West Bengal 4 Cal LT 517 Ramesh Vs. State of Maharashtra AIR 1962 SC 1908 State of Rajasthan Vs. Smt. Kalki & Anr. 2 SCC 752 and State of Himachal Pradesh Vs. Lekh Raj & Anr. 1 SCC 247. Before dealing with the rival contentions this Court feels that the reply of the accused while he was examined under Section 313 of the Code of Criminal Procedurein question No. 9 is required to be referred: “9.Q. This witness further stated that when she became afraid he assured her that he was a police and after crossing the river he took her by a auto on the pretext of doing some urgent work and stopped near a road where she found many girls wearing short dresses smoking cigarettes and she felt very bad. What you have to say Answer: I was going along the road and stopped to purchase cigarette and then some persons apprehended and detained me.” Such plea of the appellant was never taken up during the examination of any of the witnesses and this defence was first time introduced by the appellant in his examination under Section 313 of the Code of Criminal Procedure. As to whether such type of plea can be accepted by this Court or not would be dealt with subsequently. An assessment of the prosecution witnesses would reveal that apart from the victim being PW1 Babli Bhattacharya Sunita Das Baby Agarwaland Tarun Mukherjeeare all witnesses who were present at the time when the accused was intercepted. The evidence of PW2 PW3 and PW5 reflect that the place where the accused along with PW1 was intercepted is a red light area. The spirit tenor of evidence of all these witnesses unerringly lead to one conclusion that the accused and the PW1 were intercepted in the area and the accused being questioned could not provide any satisfactory answer rather he tried to establish himself as a police and by such representation attempted to hoodwink the witnesses who believed that the minor PW1 was brought in the area for an illegal purpose. It is sufficient to say that the deposition of PW1 is inspiring confidence so far as the manner in which she has been brought in the area from the railway station at Howrah. Here it would be pertinent to deal with the argument advanced by the learned advocate for the appellant that there was no evidence that the minor was taken away from the lawful guardianship or there was no inducement of the victim to accompany the petitioner to a brothel. The foundation of such submission requires reference to the judgment of the Hon’ble Apex Court in Thakorlal D. Vadgama Vs. State of Gujarat 2 SCC 413 : 1973 SCC835 at page 420 wherein it has been held that: “10. The legal position with respect to an offence under Section 366 IPC is not in doubt in State of Haryana v. Rajaram1 SCC 544 : 1973 SCC 428] this Court considered the meaning and scope of Section 361 IPC it was said there: “The object of this section seems as much to protect the minor children from being seduced for improper purpose as to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards. The gravamen of this offence lies in the taking or enticing of a minor under the ages specified in this section out of the keeping of the lawful guardian without the consent of such guardian. The words ‘takes or entices any minor out of the keeping of the lawful guardian of such minor’ in Section 361 are significant. The use of the word ‘keeping’ in the context connotes the idea of charge protection maintenance and control: further the guardian s charge and control appears to be compatible with the independence of action and movement in the minor the guardian s protection and control of the minor being available whenever necessity arises. On plain reading of this section the consent of the minor who is taken or enticed is wholly immaterial: it is only the guardian s consent which takes the case out of its purview. Nor is it necessary that the taking or enticing must be shown to have been by means of force or fraud persuasion by the accused person which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the section.” 1.In the case cited reference has been made to some English decisions in which it has been stated that forwardness on the part of the girl would not avail the person taking her away from being guilty of the offence in question and that if by moral force of a willingness is created in the girl to go away with the former the offence would be committed unless her going away is entirely voluntary. Inducements by previous promise or persuasion was held in some English decision to be sufficient to bring the case within the mischief of the statute. Broadly the same seems to us to be the position under our law. The expression used in Section 361 IPC is “whoever takes or entices any minor”. The word “takes” does not necessarily connote taking by force and it is not confined only to use of force actual or constructive. This word merely means “to cause to go” “to escort” or “to get into possession”. No doubt it does mean physical taking but not necessarily by use of force or fraud. The word “entice” seems to involve the idea of inducement or allurement by giving rise to hope or desire in the other. This can take many forms difficult to visualise and describe exhaustively some of them may be quite subtle depending for their success on the mental state of the person at the time when the inducement is intended to operate. This may work immediately or it may create continuous and gradual but imperceptible impression culminating after some time in achieving its ultimate purposes of successful inducement. The two words “takes” and “entices” as used in Section 361 IPC are in our opinion intended to be read together so that each takes to some extent its colour and content from the other. The statutory language suggests that if the minor leaves her parental home completely uninfluenced by any promise offer or inducement emanating from the guilty party then the latter cannot be considered to have committed the offence as defined in Section 361 IPC. But if the guilty party has laid a foundation by inducement allurement or threat etc. and if this can be considered to have influenced the minor or weighed with her in leaving her guardian s custody or keeping and going to the guilty party then prima facie it would be difficult for him to plead innocence on the ground that the minor had voluntarily come to him. If he had at an earlier stage solicited or induced her in any manner to leave her father s protection by conveying or indicating or encouraging suggestion that he would give her shelter then the mere circumstance that his act was not the immediate cause of her leaving her parental home or guardian s custody would constitute no valid defence and would not absolve him. The question truely falls for determination on the facts and circumstances of each case. In the case before us we cannot ignore the circumstances in which the appellant and Mohini came close to each other and the manner in which he is stated to have given her presents and tried to be intimate with her. The letters written by her to the appellant mainly in November 1966 and in December 1966 Exhibit P 16) and also the letter written by Mohini s mother to the appellant in September 1966 Exhibit P 27) furnish very important and essential background in which the culminating incident of January 16 and 17 1967 has to be examined. These letters were taken into consideration by the High Court and in our opinion rightly. The suspicion entertained by Mohini s mother is also in our opinion relevant in considering the truth of the story as narrated by the prosecutrix. In fact this letter indicates how the mother of the girl belonging to a comparatively poorer family felt when confronted with a rich man s dishonourable behaviour towards her young impressionable immature daughter a man who also suggested to render financial help to her husband in time of need. These circumstances among others show that the main substratum of the story as revealed by Mohini in her evidence is probable and trustworthy and it admits of no reasonable doubt as to its truthfulness. We have therefore no hesitation in holding that the conclusions of the two courts below with respect to the offence under Section 366 IPC are unexceptionable. There is absolutely no ground for interference under Article 136 of the Constitution.” In view of the law laid down by the Hon’ble Apex Court the submission of the appellant so far as taking away from lawful guardianship or for the purpose of inducing the victim from accompanying the appellant cannot be sustained in the factual matrix of the present case. The evidence to that extent is overwhelming as there was an enticement allurement along with a misrepresentation by the appellant of being a police personnel and thereby building a confidence in the mind of the minor. Some minor contradictions have been pointed out by the Learned Advocate for the appellant but such minor contradictions are bound to appear where the victim is illiterate ignorant and aged about 15 years. In Boya Gaganna Vs. State of A.P. 1976) 1 SCC 584 it has been observed : “Even in case of trained and educated persons memory sometimes plays false and this would be much more so in case of ignorant and rustic women. It must also be remembered that the evidence given by a witness would very much depend upon his power of observation and it is possible that some aspects of an incident may be observed by one witness while they may not be witnessed by another though both are present at the scene of offence.” It is well settled that minor variations should not be taken into consideration while assessing the reliability of testimony of a witness and the consistency of the prosecution witness must be taken as a whole. Minor inconsistencies in the version cannot outweigh the consistent truth appearing from the version of the victim and to examine such evidence with microscopic approach would be an insult to justice oriented judicial system. Thus the charges of kidnapping in the instant case is to be appreciated on the background of enticement knowledge and capacity of the minor to understand the consequences the place of occurrence from where the minor has been recovered along with accused as also the belated plea taken up by the accused. Needless to state that the victim apart from being a minor was illiterate below the poverty level and the evidence was recorded after a considerable period of time since the commission of the offence. So the contention of the appellant that the complainant being the victim has consistently changed her stand is to be viewed with regard to her ability to present all the facts in a chronological manner which in fact is impossible if a true set of facts are to be placed before a Court of law. The veracity of the evidence of the victim PW1 so far as the core allegations are concerned are consistent and minor contradictions in this case cannot suppress the ring of truth in her version. The other aspect which requires consideration in this appeal is the belated plea taken up by appellant at the stage of Section 313 of the Code of Criminal Procedure. It is a settled proposition of law that the answers given by the accused in course of examination under Section 313 of the Code of Criminal Procedure can be used as an aid to lend credence to the evidence given by the prosecution. In this case we find that throughout the cross examination the truthfulness of the prosecution version was challenged to the limited extent of the veracity of the witnesses who had been deposing before the Court and it is only for the first time while being examined under Section 313 of Cr.P.C. the accused took a plea “I was going along the road and stopped to purchase cigarette and then some other persons apprehended and detained me.” Such a plea at least fortifies the presence of the accused at the place of occurrence and the same supports the prosecution version of being present in the red light area as narrated by the prosecution witness. On an analysis of the evidence of the prosecution witnesses and the examination under Section 313 of the Code of Criminal Procedure this Court finds that the judgment and order of conviction and sentence so passed by the Ld. Trial Court do not suffer from any infirmity and as such no interference is called for. The judgment and order of conviction and sentence dated 27.09.2016 and 28.09.2016 passed by the learned Additional District & Sessions Judge F.T. Court No. II Bichar Bhawan Calcutta in Sessions Trial No. 2(4) 2013 is hereby affirmed. Accordingly CRA 6716 is dismissed. Department is directed to communicate this order to the Ld. Trial Court and send the LCR forthwith to the Court below. Urgent Xerox certified photocopies of this judgment if applied for be given to the parties upon compliance of the requisite formalities. Tirthankar Ghosh J.)

Welfare policy for vaccination can never affect a major fundamental right: Meghalaya High Court

Mandatory Covid-19 vaccination drive by the state is for the greater benefit of the society and is not a negative coercive reinforcement. Such a drive does not impair any of the rights guaranteed under Chapter III of the constitution. Hon’ble Mr. Justice Biswanath Somadder and Hon’ble Mr. Justice H.S. Thangkhiew held that, “A harmonious and purposive construction of the provisions of law and principles of equity, good conscience and justice reveals that mandatory or forceful vaccination does not find any force in law leading to such acts being liable to be declared ultra vires ab initio.” In Registrar General Vs. State of Meghalaya [PIL No.6/2021]  Brief facts of the case are that an order was passed by the deputy commissioner which made it mandatory for shopkeepers, vendors, local taxi drivers and others to get themselves vaccinated before they can resume their businesses. The issue before the Hon’ble court was whether such a mandate was valid with respect to the fundamental rights of the citizens. The courts analyzed this issue in light of the right to life and livelihood which was included under the ambit of article 21 in Olga Tellis & Ors vs. Bombay Municipal Corporation & Ors. [1986 SC 180]. The individual’s personal rights would deemed to be violated if the vaccination is forced on them. However, if any compulsory vaccination drive is coercive by its very nature and spirit, it assumes a different proportion and character. Article 19 (6) states that reasonable restrictions can be imposed on such rights if it is in the interest of the public’. It was also observed that the burden to sensitize the citizens and disseminate information regarding the vaccination lies with the government. “The welfare nature of the State isn’t for coercive negative reinforcement by seizing their right to livelihood, proscribing them to earn from their occupation and/or profession without any justification in the garb of public interest, but lies in walking together with concerted efforts attempting to effectuate a social order as mandated under Article 38 by approaching the people directly by engaging them in one-to-one dialogues and dwelling on the efficiency and the positive aspects of administering of the vaccine without compromising its duty under Article 47 nor abrogating its duty to secure adequate means of livelihood under Article 39(a)” It was also observed that while issuing any kind of interventions causing behavioral change, such an intervention must be adaptive in nature meaning that the people must be educated about the impact of the intervention. The guidelines must be interpreted as persuasive advisory and not as a coercion. Furthermore, the health department further laid down 7 points to ensure that the vaccination is directory and not mandatory. It also directed vendors and establishments to put up posters indicating whether they were vaccinated or not. This will ensure that the customers can make an informed decision and calculate all risks.

Serial No.01 Regular List PIL No.6 2021 HIGH COURT OF MEGHALAYA AT SHILLONG Date of Order: 23.06.2021 Registrar General Vs. State of Meghalaya High Court of Meghalaya Hon’ble Mr. Justice Biswanath Somadder Chief Justice Hon’ble Mr. Justice H.S. Thangkhiew Judge For the Petitioner Appellant(s) For the Respondent(s) i) Whether approved for reporting in Mr. A Kumar Advocate General with Mr. S Sen Gupta Addl.Sr.GA Mr. AH Kharwanlang GA Mr. Chetan Joshi Adv Mr. Shaurya Sahay Adv Mr. Aditya Shankar Pandey Adv Law journals etc.: ii) Whether approved for publication in press: JUDGMENT:(per Biswanath Somadder the Hon’ble the Chief Justice) It has been brought to the notice of this High Court that the State of Meghalaya through various orders of the Deputy Commissioners has made it mandatory for shopkeepers vendors local taxi drivers and others to get themselves vaccinated before they can resume their businesses. Whether vaccination can at all be made mandatory and whether such mandatory action can adversely affect the right of a citizen to earn his her livelihood is an issue which requires consideration. At the outset it must be stated clearly and unequivocally that vaccination is need of the hour nay an absolute necessity in order to overcome this global pandemic which is engulfing our world. However the issue as stated in the earlier paragraph requires to be clearly answered. In order to answer the issue at first we need to look at certain fundamental principles which govern the field. Article 21 encompasses within its fold right to health as a fundamental right. By that same analogy right to health care which includes vaccination is a fundamental right. However vaccination by force or being made mandatory by adopting coercive methods vitiates the very fundamental purpose of the welfare attached to it. It impinges on the fundamental right(s) as such especially when it affects the right to means of livelihood which makes it possible for a person to live. As held in Olga Tellis & Ors vs. Bombay Municipal Corporation & Ors reported at AIR 1986 SC 180 =3 SCC 545 right to life includes right to the means of livelihood. Any action of the State which is in absolute derogation of this basic principle is squarely affected by Article 19(1)(g). Although Article 19(6) prescribes “reasonable restrictions” in the “interest of general public” the present instance is exemplary and clearly distinguishable. It affects an individual‟s right choice and liberty significantly more than affecting the general public as such or for that matter the latter‟s interests being at stake because of the autonomous decision of an individual human being of choosing not to be vaccinated. It is more about striking the right balance between an individual‟s right vis à vis the right of the public at large. However in substantiation of Mill‟s theory of the liberty to exercise one‟s right until it impinges on the right of another here too the “welfare State” is attempting to secure the rights of others which though legitimate is palpably excessive owing to the procedure adopted by it. Another pivotal question emerges as to whether any notification order published by the State Government and or its authority can be understood as a prescription by “law” for the purposes of prohibiting a greater degree of rights i.e. fundamental rights. In other words can a State Government and or its authority issue any notification order which is likely to have a direct effect on the fundamental rights of its citizens especially on a subject matter that concerns both public health and the fundamental rights of the individual The issue here essentially centres around a question on the lawmaking power of the State Government which even though permitted by Entry 6 List II of the Seventh Schedule has to be in consonance with the fundamental right to life and livelihood of an individual. In this case there is a clear lack of legitimacy in prohibiting freedom of carrying on any occupation trade or business amongst a certain category or class of citizens who are otherwise entitled to do so making the notification order ill conceived arbitrary and or a colourable exercise of power. A notification order of the State certainly cannot put an embargo and or fetter on the fundamental right to life of an individual by stripping off his her right to livelihood except according to the procedure established by law. Even that procedure is required to be reasonable just and fair on COVID 19 vaccine prepared and uploaded by the Ministry of Health and Family Welfare Government of India in its official website the question which appears under serial number 3 reads “Is it mandatory to take the vaccine ” The “potential response” which is provided in the official website reads “Vaccination for COVID 19 is voluntary. However it is advisable to receive the complete schedule of COVID 19 vaccine for protecting oneself against this disease and also to limit the spread of this disease to the close contacts including family members friends relatives and co workers.” In this context around one hundred and seven years ago in Schloendroff v Society of New York Hospitals reported at 211 NY 125 = 105 NE 92 1914 NY Justice Cardozo ruled that „every human being of adult years and sound mind has a right to determine what shall be done with their body‟. Thus by use of force or through deception if an unwilling capable adult is made to have the „flu vaccine would be considered both a crime and tort or civil‟ wrong as was ruled in Airedale NHS Trust v Bland reported at 1993 AC 789 = 2 WLR 316 = 1 All ER 821 around thirty yearsago. Thus coercive element of vaccination has since the early phases of the initiation of vaccination as a preventive measure against several diseases have been time and again not only discouraged but also consistently ruled against by the Courts for over more than a century. There are several ambiguities on the procedural and substantive aspects of the concerned notification order. Doubts are cast on whether coercive assertion of one‟s fundamental right can tend to abrogate another‟s equally placed fundamental right. Question also arises whether fundamental right can be forcefully imposed even if the beneficiary is not inclined to its exercise because if the latter is undertaken then there is a risk of running into infringing on the fundamental right to privacy and exercise of personal liberty. Furthermore whether to subject oneself to an intrusion of his her body even if of minor intensity e.g. through a needle concerns issues of personal and bodily autonomy and bodily integrity similar to abortion rights or non sterilization rights or even sex reassignment surgeries irrespective of what consequences the individual might be inviting. This finds mention in decisions of the European Commission and Court of Human RightsX vs. Austria of 1979 which has become truer in the present times across the world than ever before. Compulsorily administration of a vaccine without hampering one‟s right to life and liberty based on informed choice and informed consent is one thing. However if any compulsory vaccination drive is coercive by its very nature and spirit it assumes a different proportion and character. In our view the burden lies on the State to disseminate and sensitize the citizens of the entire exercise of vaccination with its pros and cons and facilitate informed decision making particularly in a situation where the skeptical vulnerable marginalised section of the society some of whom are also gullible members of the indigenous communities who are constantly being fed with deliberate misinformation regarding the efficacy of vaccination by some persons organisations with oblique motives. The welfare nature of the State isn‟t for coercive negative reinforcement by seizing their right to livelihood proscribing them to earn from their occupation and or profession without any justification in the garb of public interest but lies in walking together with concerted efforts attempting to effectuate a social order as mandated under Article 38 by approaching the people directly by engaging them in one to one dialogues and dwelling on the efficiency and the positive aspects of administering of the vaccine without compromising its duty under Article 47 nor abrogating its duty to secure adequate means of livelihood under Article 39(a). Therefore right to and the welfare policy for vaccination can never affect a major fundamental right i.e. right to life personal liberty and livelihood especially when there exists no reasonable nexus between vaccination and prohibition of continuance of occupation and or profession. A harmonious and purposive construction of the provisions of law and principles of equity good conscience and justice reveals that mandatory or forceful vaccination does not find any force in law leading to such acts being liable to be declared ultra vires ab initio. At this stage learned Advocate General draws our attention to certain guidelines issued by the Principal Secretary to the Government of Meghalaya Health and Family Welfare Department yesterday i.e. 22nd June 2021 to all the Deputy Commissioners of the districts of Meghalaya on the measures required to be taken by the districts for addressing the issue of vaccine hesitancy. Perusing the same it appears that the Principal Secretary to the Government of Meghalaya Health and Family Welfare Department has observed inter alia that for public health administration indigenous States like Meghalaya poses distinct challenges while mobilising people and introducing any new interventions. In such situations the approach towards effecting any kind of behavioural change needs to be „adaptive’ in nature meaning thereby that the people need to be mobilised and convinced to see the impact of the new intervention for greater acceptance among the communities. It has also been advised by the Principal Secretary to the Government of Meghalaya Health and Family Welfare Department in the said guidelines that the orders in the districts have to be seen as a “persuasive advisory” and not as a coercion with regards to the issue of vaccination. The Principal Secretary to the Government of Meghalaya Health and Family Welfare Department while issuing the guidelines dated 22nd June 2021 has also laid down 7(seven) points that are required to be considered for effecting change in the COVID vaccine compliance in the respective districts of Meghalaya. The Principal Secretary has clearly stated that the existing orders on vaccine compliance may be modified in the light of the new policy directions as spelt out in the guidelines dated 22nd June 2021 and requirement of vaccination should be directory and not mandatory. This in our view is a step in the right direction. The learned Advocate General has further placed an order issued by the Deputy Commissioner East Khasi Hills District Shillong yesterday i.e. 22nd June 2021 following the new guidelines issued by the Principal Secretary to the Government of Meghalaya Health and Family Welfare Department yesterday. A plain reading of this order reveals the same to be quite in sync with the observations made hereinbefore by this Court read with new guidelines issued yesterday by the Principal Secretary Government of Meghalaya Health and Family Welfare Department. We are of the view that this order is required to be complied with by all taxis auto rickshaws maxi cabs and buses forthwith. In addition thereto we issue the following directions so that the public at large are provided with an option of making an informed choice: i) All shops establishments local taxis auto rickshaws maxi cabs and buses should display prominently at a conspicuous place a sign “VACCINATED” in the event all employees and staff of the concerned shop establishment are vaccinated. Similarly in the case of local taxis auto rickshaws maxi cabs and buses where the concerned driver or conductor or helper(s) are vaccinated. ii) All shops establishments local taxis auto rickshaws maxi cabs and buses should display prominently at a conspicuous place a sign “NOT VACCINATED” in the event all the employees and staff of the concerned shop establishment are not vaccinated. Similarly in the case of local taxis auto rickshaws maxi cabs and buses where the concerned driver or conductor or helper(s) are not vaccinated. The actual dimension of the signs “VACCINATED” or “NOT VACCINATED” and the conspicuous place where such sign is required to be affixed displayed shall be decided by the concerned authority of the event rickshaws maxi cabs and buses flouts the above directions the concerned authority of the State shall immediately direct its closure stoppage of plying. So far as vaccine hesitation issue is concerned the same is required to be dealt with by the State Government in the manner specified in its new guidelines issued yesterday by the Principal Secretary Health and Family Welfare Department Government of Meghalaya read with the observations made by us hereinbefore. This Court shall monitor this issue closely so that the State Government is able to overcome the vaccine hesitation problem at the earliest and all eligible persons in the State of Meghalaya are vaccinated well within the timeframe as may be specified by the State. In the event there is any attempt made by any person organisation to spread misinformation regarding the efficacy of vaccination amongst the people of this State the concerned authority of the State shall immediately step in and proceed against such person organisation in accordance with law. The concerned authority of the State shall also bring such instances to the notice of this Court. So far as the other issue with regard to the method of implementation of the Government Welfare Schemes meant for the marginalised section of the society is concerned the learned Advocate General has placed an order dated 22nd June 2021 issued by the Chief Secretary to the Government of Meghalaya. We request the learned Registrar General to intimate the Member Secretary of the Meghalaya State Legal Services Authority Shillong with regard to the said order dated 22nd June 2021. The Member Secretary of the Meghalaya State Legal Services Authority Shillong shall bring the said order to the notice of all the Secretaries of the District State Legal Services Authorities in the State of Meghalaya who shall enquire and find out as to whether the concerned departments are actually taking steps to ensure that the Government Welfare Schemes for the marginalised section of the society are being properly and effectively implemented in a time bound manner in accordance with the guidelines of the respective schemes. The Secretaries of all the District State Legal Services Authorities shall submit their respective reports to the Member Secretary Meghalaya State Legal Services Authority Shillong within a period of four weeks from date so that the Member Secretary can compile the same and place the compilation before this Court through the learned Registrar General. List this matter next Wednesday i.e. 30th June 2021 for further H.S. Thangkhiew) Judge Chief Justice consideration. Meghalaya “Lam AR PS”

Interim bail granted, where the Jail Authority cannot provide the necessary treatment: High Court of Delhi.

In the case where the medical condition of the accused person in custody, is serious and the jail authority is unable to extend any necessary medical treatment, then in such case, the court may grant interim bail to such person in custody for a specified period to get examined and treated. A single Judge bench Comprising of Hon’ble Justice C. Hari Shankar, in the matter of Ashok Kumar Mishra Vs. Directorate of Enforcement (CRL.M(BAIL). 840/2021), dealt with an issue where the petitioner, who is in custody had applied for interim bail on medical grounds. In the present case the petitioner was alleged of committing offenses under Section 13(2) read with section 13(1)(a) of the Prevention of Corruption Act, 1947 and Section 409 read with Section 120-B of the Indian Penal Code. The petitioner was in custody while he applied for Interim bail on medical grounds. After issuance of notice on this application, the Senior Medical Officer, Central Jail No. & of Tihar, filed a medical report before this court on 25th June 2021. The medical report reflected the condition of the Petitioner to be considerably serious. And for such medical condition of the accused, the jail authority didn’t have the wherewithal to extend necessary treatment. Later the Court deemed it appropriate to call for a report from the Government Medical Hospital. As per the second medical Report, the SPP for the respondent submitted before the court that no where in the second report, the jail Authority have expressed any inability to extend any necessary medical treatment to the applicant. The counsel for the petitioner submitted that the petitioner should be granted anticipatory bail so that he can get the appropriate medical or surgical therapy, necessary for his condition. The counsel stated that the application for interim bail does not mean escapes from the confine of the jail, and the applicant through this application only seeks interim bail for 2 weeks, whereafter he had undertaken to return to custody. Moreover, the council submitted before the Hon’ble court that the co-accused in the same office was granted interim bail by the trial court for a period of 30 days, but the co-accused had continued to remain outside the jail. The court observed that it cannot totally ignore the first medical report which reflected that the applicant’s condition was serious and the inability of the Jail Authority to provide any necessary treatment to the applicant. Also, on 10th June 2021, the applicant had a cardiac arrest. After going through both the medical reports and the submission of both the counsels, the court deemed it appropriate to grant interim bail to the applicant to get examined and treated for a period of 14 days from the date of his release on furnishing of a personal bond of ₹ 2,00,000/ – with one surety of like amount to the satisfaction of the Jail Superintendent. Also, the applicant was asked to provide to the Jail Superintendent, his personal mobile no. along with the mobile no. of two other persons as an alternative contact source, before he is released. Further, the applicant was directed to contact the IO telephonically, on a daily basis. Moreover, he was direct not to interact with the co-accused or any other person named in the case and also should not interfere or influence the investigation or inquiry process. Lastly, the petitioner was directed to surrender to the custody immediately on the expiry of 14 days from the date of his release.

IN THE HIGH COURT OF DELHI AT NEW DELHI BAIL APPLN. 1878 2021 & CRL.M(BAIL). 840 2021 ASHOK KUMAR MISHRA ..... Petitioner Through: Mr. N. Hariharan Sr. Adv. assisted by Mr. Murari Tiwari Siddharth S. Yadav Mr. Samarth K. Luthra Ms. Akriti Gupta Mittal and Mr. Rahul Kumar Advs. DIRECTORATE OF ENFORCEMENT ..... Respondent Through: Mr. Nitesh Rana SPP with Mr. Ali Khan Adv. for ED HON BLE MR. JUSTICE C. HARI SHANKAR O R D E R03.07.2021 CRL.M(BAIL). 840 2021 in BAIL APPLN. 1878 2021 The applicant who is in custody on the allegation of having committed offences under Section 13(2) read with Section 13(1)(a) of the Prevention of Corruption Asct 1947 and Section 409 read with Section 120 B of the Indian Penal Code has applied for interim bail on medical grounds. Consequent to issuance of notice on this application on 21st June 2021 a medical report from the Senior Medical Officer Central Jail No. 7 Tihar dated 24th June 2021 was filed before this Court. The condition of the applicant as reflected in the said medical report BAIL APPLN. 1878 2021 appears to be considerably serious. Some extracts from the report may be usefully reproduced thus: “The Visiting Jail Senior Resident Medicine examined and advised for Charting of blood pressure as well as blood sugar level were found to be above acceptable biological reference limits in the various periods evaluated. Then advised for injectable medicines for control higher blood pressure tablets form with increase doses and antithromboticmedicines for Coronary Artery Disease Injection insulin Insulin dependent Diabetes Mellitus 2. Nebulisation with Bronchodilator Mucolytics and Steroids in CJ 07 Dispensary is being given twice daily along with inhalers and nasal spray. Inmate patient is being provided symptomatic treatment from jail dispensary but his symptoms His referral to a higher centre to and levels are not in control be done as soon as current restrictions on inmate movements to outside hospitals due to high risk of getting COVID 19 infection and for developing serious illness from COVID 19 due to presence of comorbidities of Diabetes Mellitus and Uncontrolled Hypertension. Inmate patient has been advised to nature of his multiple COVID precautions due HBAIC as on 07 06 2021 was 9.10% where as normal biological reference interval is 4.8 to 5.9%. Above 8% the risk of Microvascular complications associated with diabetes mellitus may increase in case of diabetes associated with Chronic Hypertension as age grows. Inmate patient have multiple episodes of severe breathlessness in recent days. Inmate patient has been prescribed medications including inhalers to symptomatically use for treatment. Regular nebulisation with bronchodilator mucolytics and steroids is being given. Inmate patient has been advised COVID precautions due to nature of his multiple comorbidities. Inmate patient was reviewed and monitored by visiting jail Senior Resident Orthopaedics and last reviewed on 22 06 2021 for the complaint of Severe Lower Back Ache pain in right and left shoulder pain in bilateral knee pain in great toe. severe low back pain radiating to bilateral lower limbs weakness numbness and tingling sensation in bilateral lower limbs and difficult in carrying routine activities and requiring assistance for routine activities. He is being BAIL APPLN. 1878 2021 provided symptomatic treatment from jail dispensary but his symptoms are aggravating and no improvement is reported. He has been provided appropriately prescribed medications and now additionally Tab Pregabalin for the neuropathy. He has been prescribed the use of knee cap and Lumbosacral belt. He has been prescribed Physiotherapy and Bed Rest including Sleeping and Sitting Support. Currently due to is not regularly COVID 19 restrictions physiotherapy available in jail. The inmate patient was brought on an emergency call to central jail no. 07 dispensary on 10 06 2021 at 02:15 P.M. for the complaint left sided Chest Pain fever anxiety palpitation fainting sweating then doctor on duty measure pulse rate high(l 12 per minutes). High blood pressure 148 130 mm of Hg) and Low SP02(92%). Doctor on duty injectable medication and oxygen prescribed necessary inhalation and blood test of cardiac markeris positive indicating a cardiac attack. Jail visiting Senior Resident Medicinealso examined the inmate patient and advised for oxygen inhalation anticoagulant medication and diagnosed a case of Angina Pectoris further advised for admitted in central jail no. 07 M.I. Room for close the presence of comorbidities of monitoring. Also uncontrolled diabetes mellitus 2 hypertension coronary artery disease and COPD in the inmate which puts him at higher risk for getting COVID 19 and for developing serious illness from COVID 19. Previously the inmate patient came in emergency condition in CJ 07 MI Room for the treatment of the acute exacerbation of Bronchial Asthma medical report dated 24th A plain reading of the afore extracted passages from the June 2021 reveals that the condition of the applicant is considerably serous and that the jail authorities do not have the wherewithal to extend to him the necessary treatment. This Court deemed it appropriate nevertheless to call for a report from the government medical hospital whereupon the applicant was seen by the authorities in the Ram Manohar Lohiya Hospital who have also tendered their opinion resulting in a second medical report June 2021 paras 1 to 3 of which read thus inmate patient was “1. The in Medicine department by Dr. K Sai Samarth Dr. Pooja Rani(MD Medicine Senior Resident) Finding SP02 98% respiratory system B L breath sound + except wheeze in B L ISA(Inferior Segmental Area) Chest x ray(p a view) diabetic diet B.P. and R.B.S. Monitoring Life style modification sign of hypoglycaemia explained and review with report. 2. The inmate patient was reviewed in Cardiology department by Dr. Aseem Basha M enclosed copy of review prescription Annexure 3) finding: Pulse rate 72 min. Blood Pressure 144 88 mm of hg CVS BAIL APPLN. 1878 2021 S1S2 Normal ECG normal R wave progression advised medication and plan for Coronary Angiography. 3. The inmate patient was reviewed by orthopaedic department by Dr. Ankush finding: SLR(Straight Leg Raise Test) right 60 degree left 90 degree and sensory loss over L4 L5 dermatomes. prescribed medication and plan for MRI L.S. Spine.The inmate patient currently admitted in cj 07 MI Room his vital status of today 30 06 2021 at 1:30 P.M. Temp — 99.0 °F Blood Pressure 142 88 mmHg Pulse Rate 92 min Respiratory rate 20 min Spo2 98%” 5. Mr. Nitesh Rana learned SPP for the respondent submits that in the second report dated 30th June 2021 the jail authorities have not expressed any inability to extend medical treatment to the applicant. It is not possible for this Court to entirely ignore the medical report dated 24th June 2021. Both the medical reports seen in conjunction reveal that the medical condition of the applicant is not satisfactory. Nor can the court shut it eyes to the helplessness expressed by the jail authorities in the medical report dated 24th June 2021 in extending requisite therapeutic assistance to the applicant. Perhaps of most serious concern would be the fact that the applicant is stated to have had a cardiac attack as recently as on 10th June 2021. 7. Mr. N. Hariharan learned Senior Counsel for the applicant submits that the present application is being filed not as a means to escape from the confines of the jail but only because serious concerns arise from the medical reports which are forthcoming in the present case and that in order to avoid any exacerbation of the applicant’s BAIL APPLN. 1878 2021 condition or any possible cardiac arrest which as per the medical report dated 24th June 2021 did actually take place at least on one occasion the applicant ought to be extended the benefit of having his condition properly apprised and if necessary appropriate medical or surgical therapy administered to him. For this purpose Mr. Hariharan submits that he is only at present seeking interim bail for two weeks whereafter he undertakes to return to custody. He submits that in fact a co accused in the same office was extended interim bail on medical grounds by the learned trial court on 16th April 2021 initially for a period of 30 days and continues to remain outside the jail. On a cumulative reading of the aforesaid medical reports dated 24th June 2021 and 30th June 2021 especially keeping in view the observations in the passages extracted from the medical report dated June 2021 indicates that the applicant had in fact suffered a cardiac attack in jail I deem it appropriate to grant interim bail to the applicant solely in order to enable him to be examined and treated for a period of 14 days from the date of his release on furnishing of a personal bond of ₹ 2 00 000 with one surety of like amount to the satisfaction of the Jail Superintendent. The applicant shall provide his own mobile number as well as the mobile number of two other persons who may be contacted in the alternative to the Jail Superintendent before he is released. All the mobile numbers would remain active and operational during the period of interim bail of the applicant. The applicant is also directed to telephonically contact the IO on a daily basis. BAIL APPLN. 1878 2021 10. The applicant shall also ensure that he does not interact with any of the other co accused persons or other persons named in the present case and obviously shall not impede or inhibit the investigation or the inquiry process in this matter. 11. Any violation of these directions shall result ipso facto in withdrawal of the facility of interim bail granted today. The applicant shall surrender to custody immediately on the expiry of 14 days from the date of his release. 12. With the aforesaid directions this application stands disposed 13. The Registry is directed to e mail a copy of this order to Jail Superintendent Tihar as well as to learned Counsel for the parties as soon as it is ready. Mr. Nitesh Rana learned SPP for the respondent undertakes to inform the respondent of the order passed today. C. HARI SHANKAR J. VACATION JUDGE) of. JULY 3 2021 BAIL APPLN. 1878 2021

Treatment of an employee as a regular employee even if it is against his designation would deem him to be a regular employee: Supreme Court of India

Aspects associated with a person who had a regular appointment when performed on a person who is deemed otherwise will be considered as a regular employee and be eligible for all the benefits a person with regular employment would be entitled like compassionate appointment. This was held by the Hon’ble Justice Sanjay Kishan Kaul and Hon’ble Justice Hrishikesh Roy in the case of The state of Uttar Pradesh and Ors. Vs. Uttam Singh [CIVIL APPEAL NO.4575/2021] on the 03rd of August, 2021 before the Hon’ble Supreme Court of India at New Delhi. The brief facts of the case are, the father of the respondent had earlier waged a legal battle against the appellant-Department arising out of his endeavour to get his appointment post his selection for the post of Tubewell Operator. The High Court in the impugned order opined that the selection process of the father of the respondent was unambiguous and against the regular vacancy whereby he had submitted all the requisite documents to the Irrigation Department. The case of the respondent is that the appellants held up this issue over six years and the actual appointment took place only on 29.01.2003. The respondent’s father continued to work and draw emoluments for a period of 13 years equivalent to the regular pay-scale till he unfortunately passed away on 09.03.2016. The appellants seek to assail the judgment of the Division Bench of the Allahabad High Court in terms whereof the respondent before us has been granted the benefit of compassionate appointment under the Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as “the Rules”) on account of demise of his father, who was working with the appellants. The respondents submit that, the father of the respondent had not been regularized and merely grant of equivalent benefits on the principle of ‘equal pay for equal work’ would not make him regular employee and thus the respondent is not entitled to the benefit of the Rules for compassionate employment the respondent contends that since his father was employed for more than 3 years in continuous service, he was bound to be considered as a Government Servant and thus the benefit should extend to the respondent. However, the appellant contends that, a person not regularly appointed but who had otherwise put in 3 years continuous service in a regular vacancy cannot mean to imply that a Daily Wager would get the benefit of the Rule. We may, however, note that the Court had opined on the facts of that case holding that benefit would not accrue to the respondent. The regular vacancy was held to mean a vacancy which occurred in posts sanctioned by the competent authority. The service of the deceased employee had not actually been regularized though they have claimed regularization. The fact that the deceased employee was drawing salary in a regular pay-scale was held not to mean that they are against a regular vacancy.

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.4575 2021 arising out of SLPNO.20650 2019 THE STATE OF UTTAR PRADESH & ORS. Appellant(s UTTAM SINGH Respondent(s JUDGMENT The appellants seek to assail the judgment of the Division Bench of the Allahabad High Court in terms whereof the respondent before us has been granted the benefit of compassionate appointment under the Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules 1974 on account of demise of his father who was working with the appellants The father of the respondent had earlier waged a legal battle against the appellant Department arising out of his endeavour to get his appointment post his selection for the post of Tubewell Operator. The High Court in the impugned order opined that the selection process of the father of the respondent was unambiguous and against the regular vacancy whereby he had submitted all the requisite documents to the Irrigation Department. The case of the respondent is that the appellants held up this issue over six years and the actual appointment took place only on 29.01.2003. The respondent’s father continued to work and draw emoluments for a period of 13 years equivalent to the regular pay scale till he unfortunately passed away on 09.03.2016. The case of the respondent is also that in identical matters the appellants have appointed one Balram and one Smt. Geeta Devi whose father and husband respectively died in harness as Part Time Tubewell Operators and many other candidates of whose record is not available. The respondent argues that he was singled out in being denied the benefit possibly on account of the earlier litigation between the father of the respondent and the appellant Department. The case of the appellants is that the father of the respondent had not been regularized and merely grant of equivalent benefits on the principle of ‘equal pay for equal work’ would not make him regular employee and thus the respondent is not entitled to the benefit of the Rules for compassionate employment. In this behalf reference is made to the judgment of this Court in Gen. Manager Uttaranchal Jal Sansthan vs Laxmi Devi & Ors. 7 SCC 205 stated to be dealing with the very Rule in question It will be useful to reproduce the relevant extract of the Rules where Rule 2reads as under “ 2.Definitions Government servant” means a Government employed in connection with the affairs of Uttar Pradesh Xxxxx though not regularly appointment put in three years had service in regular vacancy in such Explanation “regularly appointed” means appointed in accordance with the procedure laid down for recruitment to the post of service as the case may be ” Thus the respondent contends that since his father was employed for more than 3 years in continuous service he was bound to be considered as a Government Servant and thus the benefit should extend to the respondent. On the other hand relying upon the aforesaid judgment where the same Rules have been analyzed learned Senior counsel for the appellants seeks to contend that this Court opined that a person not regularly appointed but who had otherwise put in 3 years continuous service in a regular vacancy cannot mean to imply that a Daily Wager would get the benefit of the Rule. We may however note that the Court had opined on the facts of that case holding that benefit would not accrue to the respondent. The regular vacancy was held to mean a vacancy which occurred in posts sanctioned by the competent authority. The service of the deceased employee had not actually been regularized though they have claimed regularization. The fact that the deceased employee was drawing salary in a regular pay scale was held not to mean that they are against a regular vacancy We may note an interesting aspect pointed out by the learned counsel for the respondent inter alia in his synopsis 2 SCC 138. If we turn to the impugned order of the Division Bench the High Court has taken note of the Full Bench of the Allahabad High Court which is in consonance with the view propounded by this Court in the case of Gen. Manager Uttaranchal Jal Sansthan vs Laxmi Devi & Ors 7 SCC 20518 ADJ 664 been found to be unambiguous in its terms in accordance with norms after verification of all his certificates. A complete process of selection was conducted by the appellants as the employer. At the first instance appointment was denied to him on account of he not being a resident of the command area of the tubewell concerned but this ground was found unsustainable by the judicial view taken by the High Court by an earlier order dated 29.01.2003 and consequently the father of the respondent was appointed. It is in these given facts of the case that it has been found that the benefit should be made available to the respondent under the Rules. The facts have been found sufficient by the High Court to come to the conclusion that the appointment of the father of the respondent was against a regular vacancy and that is why in that background from the inception regular pay scale was allowed to him and he thus satisfied the parameters of the Rules aforesaid. We are in complete agreement with the view taken by the High Court in the given factual scenario. We may say it appears that the appellants for reasons best known to them endeavoured to deny the father of the respondent his dues even though the appointment was through a proper process. The High Court opined against the manner in which the father of the respondent was denied employment. That is the reason that from the very inception he was given the benefits of a regular employee while designating him as a Part Time tubewell operator. The High Court has found that these facts show that the appointment was against the regular vacancy though it continued to be termed as a ‘Part Time’ appointment apart from the fact that his work hours were of a regular employee entitling him to equal pay for 10. We have also taken note of the fact that during his 13 long years of employment and before that having battled the appellants for the period of 6 years to get his dues the father of the respondent was also transferred from one department to the other normally an aspect which would be associated with a person who had a regular employment. The most significant aspect is that had the father of the respondent not been considered a regular appointee there would be no occasion for the Department to volunteer his services to the State Election Commission to perform election duties which could have been done only by a Government employee as is specified under Section 159 of the Representation of the People Act 1950 (“Staff of certain authorities to be made available for election work”). 11. The present case is thus one which is peculiar in its given factual scenario which we have discussed above and thus for all practical purposes it is a case of an appointment against a regular vacancy. The respondent’s father was treated as a regular employee by the aforesaid conduct of the appellants even though he was labelled as a Part Time tubewell operator 12. We may like to further say that from the illustrations given by the appellants at least 2 persons as noted before were employed in a similar scenario i.e. Balram and Smt. Geeta Devi whose father and husband respectively died in harness as Part Time tubewell operators. It is quite obvious that there is an discrimination against the respondent possibly arising from the previous litigation between the appellants and the deceased father of the respondent. There is no satisfactory explanation for the same and we cannot permit the appellant Department to harass the respondent in this manner. 13. We are thus of the opinion that the course adopted by the Division Bench of the High Court is in accordance with law and the impugned order does not call for any 14. The appeal is dismissed with costs throughout 15. The necessary orders be issued in the case of the respondent within one month from date the order. SANJAY KISHAN KAUL NEW DELHI AUGUST 03 2021

Section 376 CRPC- Conviction can be Sustained on the Sole Testimony of the Victim if it inspires Confidence: Supreme Court of India.

A conviction can be based on the sole testimony of the victim/prosecutrix when the deposition of the prosecutrix is found to be trustworthy, unblemished, credible and her evidence is of sterling quality, and the same was observed by Hon’ble Mukeshkumar Rasikbhai Shah, J in the matter of Phool Singh vs. The State of Madhya Pradesh– [Criminal Appeal No. 1520 of 202]. The facts of the case is that on the intervening night of 9th August 1999, when the victim/prosecutrix was alone and sleeping in her room, the accused had jumped the wall and entered into the room of the prosecutrix, where he had committed rape and then fled away. Thereafter, the prosecutrix lodged an FIR on 12.08.1999 and after completion of the investigation, a charge-sheet was filed against the accused for the offence punishable under Section 376 IPC. Accused pleaded not guilty and therefore he came to be tried for the aforesaid offence. After appreciating the evidence on record, by judgment and order dated 31.07.2000, the learned trial Court convicted the accused for the offence under Section 376 IPC. Feeling aggrieved with the judgment and order of conviction and sentence passed by the learned trial Court, the appellant herein-accused preferred an appeal before the High Court, which was also rejected. Thereafter, the appellant filed an appeal in the Supreme Court of India. The learned Advocate appearing on behalf of the accused argued that in the present case that the medical evidence did not support the case of the prosecutrix, and therefore, the prosecution case rested solely on the deposition of the prosecutrix. The counsel had also argued that there was also a delay in lodging the FIR, since the incident took place on 9.8.1999 and the FIR was lodged on 12.08.1999, i.e., after a period of three days. It was put forth by the counsel that the story of the prosecution did not find any corroboration from medical evidence and in the absence of any signs of injuries, it could not be ruled out that the physical intercourse even if assumed it had happened, could’ve been consensual. The learned Advocate General appearing on behalf of the respondent-state, argued that the learned trial Court as well as the High Court have rightly convicted the accused for the offence under Section 376 IPC, relying upon the sole testimony of the prosecutrix/victim. It was submitted that there is no reason to doubt the credibility and trustworthiness of the prosecutrix, and that once it is found that the prosecutrix is reliable and trustworthy, in that case, there can be a conviction for the offence of rape – Section 376 IPC, relying upon the deposition of the sole witness/victim. Supreme court after perusing the facts and arguments presented, held that – “Applying the law laid down by this Court in its earlier decisions to the facts of the case on hand and as observed hereinabove, we see no reason to doubt the credibility and/or trustworthiness of the prosecutrix. She has been consistent right from the very beginning. Nothing has been specifically pointed out as to why the sole testimony of the prosecutrix should not be believed. Even after thorough cross-examination, she has stood by what she has stated and has fully supported the case of the prosecution. She is found to be reliable and trustworthy. Therefore, without any further corroboration, the conviction of the accused relying upon the sole testimony of the prosecutrix can be sustained. Now so far as the submission on behalf of the accused that as there were no external or internal injuries found on the body of the prosecutrix and therefore it may be that a case of consent is concerned, the aforesaid has no substance at all.” Having regard to the aforesaid, the court hereby confirmed the conviction and sentence awarded to the accused-appellant herein for the offence under Section 376 IPC.

IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1520 OF 2021 The State of Madhya Pradesh JUDGMENT M.R. SHAH J Feeling aggrieved and dissatisfied with the impugned judgment and order dated 05.09.2019 passed by the High Court of Madhya Pradesh at Indore in Criminal Appeal No. 875 2000 by which the High Court has dismissed the said appeal preferred by the appellant accused and has confirmed the judgment and order of conviction and sentence dated 31.07.2000 passed by the learned Sessions Judge Dewas hereinafter referred to as the learned ‘trial Court’) in Session Trial No 05 2000 convicting the accused for the offence punishable under Section 376 IPC and sentencing him to undergo 7 years rigorous imprisonment with fine of Rs.500 with default stipulation the original accused has preferred the present appeal As per the case of the prosecution in the intervening night of 9 th August 1999 and when the husband of the victim prosecutrix went to another village and she was alone and she was sleeping in her room the accused jumped the wall and entered into the room of the prosecutrix. Seeing the accused the prosecutrix woke up and in the light of the bulb she identified the accused. Then the accused pressed the mouth of the prosecutrix and committed rape and thereafter he fled away by jumping the wall. As per the case of the prosecutrix she narrated the incident to her sister in lawand mother in law but they did not believe her. On the contrary she was beaten. That thereafter the prosecutrix also told the incident to other family members of her matrimonial house but nobody took any action. The prosecutrix sent the information to her parental house. Thereafter her uncle and others came to her matrimonial house and the prosecutrix told them about the incident. They took her to parental house. Thereafter an FIR was lodged on 12.08.1999. She was sent for medical examination. After completion of the investigation charge sheet was filed against the accused for the offence punishable under Section 376 IPC. The case was committed to the learned Court of Sessions. Accused pleaded not guilty and therefore he came to be tried for the aforesaid offence In order to prove the charge against the accused prosecution examined six witnesses including the doctor who examined the prosecutrix on 12.08.1999 prosecutrix PW3 and the Investigating Officer PW6. One of the witnesses Rajaram PW2 did not support the prosecution story and he was declared hostile. The accused took the plea of alibi and according to him he had gone to Indore on the day of incident and he was not in the village on that day. He examined the defence witness as DW1. The learned trial Court did not believe the plea of alibi and DW1 by giving cogent reasons. That thereafter after appreciating the evidence on record by judgment and order dated 31.07.2000 the learned trial Court convicted the accused for the offence under Section 376 IPC and sentenced the appellant as mentioned 2.2 Feeling aggrieved and dissatisfied with the judgment and order of conviction and sentence passed by the learned trial Court the appellant herein accused preferred an appeal before the High Court. By the impugned judgment and order the High Court has dismissed the said appeal. Hence the present appeal is at the instance of the accused Shri Aditya Gaggar learned Advocate appearing on behalf of the accused has vehemently submitted that in the present case the medical evidence does not support the case of the prosecutrix. It is submitted that the doctor in her deposition specifically stated that on examination it was found that there were no external or internal injuries found in the person of the prosecutrix It is further submitted that therefore the prosecution case rests solely on the deposition of the prosecutrix only. It is submitted that no other independent witnesses have been examined and or supported the case of the prosecutrix It is further submitted that there was a delay in lodging the FIR. It is submitted that the incident took place on 9.8.1999 and the FIR was lodged on 12.08.1999 i.e. after a period of three days. It is submitted that therefore the prosecution story does not find any corroboration from medical evidence and in the absence of any signs of injuries it cannot be ruled out that the physical intercourse even if assumed it had happened was entire consensual. It is further submitted that both the learned trial Court as well as the High Court have materially erred in not believing DW1 who categorically stated that on the date night of the alleged incident the accused was not in the village and was at Indore along with DW1 3.4 Making the above submissions it is prayed to allow the present appeal. In the alternative it is prayed to reduce the sentence to the period already undergone by submitting that by now the accused has undergone two and half years of sentence against the seven years sentence imposed by the courts below. It is also prayed to convert the seven years rigorous imprisonment to seven years simple imprisonment The present appeal is vehemently opposed by Shri Abhay Prakash Sahay learned Additional Advocate General appearing on behalf of the respondent State. It is submitted that in the present case both the learned trial Court as well as the High Court have rightly convicted the accused for the offence under Section 376 IPC relying upon the sole testimony of the prosecutrix victim. It is submitted that as such there is no reason to doubt the credibility and trustworthiness of the prosecutrix. It is submitted that even no question was asked to the prosecutrix while cross examining the prosecutrix that a false case was filed against the It is submitted that once it is found that the prosecutrix is reliable and trustworthy in that case there can be a conviction for the offence of rape Section 376 IPC relying upon the deposition of the sole witness victim. Reliance is placed on the decisions of this Court in the cases of Ganesan v. State 10 SCC 573 Santosh Prasad v. State of Bihar 3 SCC 443 State of H.P. v. Manga Singh 16 SCC 759 and State v. Pankaj Chaudhary 11 It is submitted that in the case of Pankaj Chaudharyit is specifically observed and held by this Court that conviction can be sustained on the sole testimony of the prosecutrix if it inspires confidence and that there is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon without corroboration 4.4 Now so far as the submission on behalf of the accused relying upon the deposition of the doctor PW1 that there were no external or internal injuries found in the person of the prosecutrix and therefore the prosecution case is not to be believed as not supported by any corroborative evidence and or that it is to be presumed that it was a case of consent is concerned it is submitted that first of all the prosecutrix has been medically examined after three days of the incident. It is submitted that the prosecutrix is consistent in her evidence right from the very beginning and even in the cross examination also she has stood by what she has stated and she has fully supported the case of the prosecution It is submitted therefore that in the facts and circumstances of the case and even in the absence of any external or internal injuries in the person of the prosecutrix the conviction can be sustained It is further submitted that even there is no suggestion in the cross examination of the prosecutrix that it was a case of consent. It is further submitted by the learned Additional Advocate General appearing on behalf of the State that in the present case on one hand the accused took the plea that it was a case of consent and on the other hand accused took the plea of alibi and that he was not in the village on the date night of the incident. It is submitted that both are contradictory to each other. It is submitted that in any case cogent reasons have been given by the learned trial Court not to believe DW1 and it is specifically observed by the learned trial Court that deposition of DW1 does not inspire any confidence 4.7 Making the above submissions and relying upon the aforesaid decisions it is prayed to dismiss the present appeal 5. We have heard the learned counsel for the respective parties at length. We have gone through the judgment and order of conviction passed by the learned trial Court convicting the accused for the offence under Section 376 IPC and the impugned judgment and order passed by the High Court 5.1 At the outset it is required to be noted that in the present case the prosecutrix has fully supported the case of the prosecution. She has been consistent right from the very beginning. Nothing has been specifically pointed out why the sole testimony of the prosecutrix should not be believed. Even after thorough cross examination she has stood by what she has stated and has fully supported the case of the prosecution. We see no reason to doubt the credibility and or trustworthiness of the prosecutrix. The submission on behalf of the accused that no other independent witnesses have been examined and or supported the case of the prosecution and the conviction on the basis of the sole testimony of the prosecutrix cannot be sustained is concerned the aforesaid has no substance In the case of Ganesanthis Court has observed and held that there can be a conviction on the sole testimony of the victim prosecutrix when the deposition of the prosecutrix is found to be trustworthy unblemished credible and her evidence is of sterling quality In the aforesaid case this Court had an occasion to consider the series of judgments of this Court on conviction on the sole evidence of the prosecutrix. In paragraphs 10.1 to 10.3 it is observed and held as 10.1. Whether in the case involving sexual harassment molestation etc. can there be conviction on the sole evidence of the prosecutrix in Vijay8 SCC 191] it is observed in paras 9 to 14 as under:1 SCC 550] this Court held 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 and therefore her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under SCC p. 559 para 16 ‘16. A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 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. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. 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 Illustrationto 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. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. 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.’ 10. In State of U.P. v. Pappu3 SCC 594 this Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case the court is not satisfied with the version of the prosecutrix it can seek other evidence direct or circumstantial by which it may get assurance of her testimony. The Court held as under:2 SCC 384] this Court held that in cases involving sexual harassment molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR for sexual offence may not be even properly explained but if found natural the accused cannot be given any benefit thereof. The Court observed as under:9 SCC 86] this Court held that rape is not mere physical assault rather it often distractsthe 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 infirmity in the prosecution case particularly where the witnesses had not seen the commission of 13. In State of H.P. v. Raghubir Singh2 SCC 622] this Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has been reiterated by this Court in Wahid Khan v. State of M.P.2 SCC 9] placing reliance on in Rameshwar v. State Rajasthan7 SCC 130] it is observed and held by this Court that to hold an accused guilty for commission of an offence of rape the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy unblemished and should be of sterling quality 10.3. Who can be said to be a “sterling witness” has been dealt with and considered by this Court in Rai Sandeep v. State [Rai Sandeep v. State (2012) 8 SCC 21]. In para 22 it is observed and held as under:it is observed and held that as a general rule if credible conviction of accused can be based on sole testimony without corroboration. It is further observed and held that sole testimony of prosecutrix should not be doubted by court merely on basis of assumptions and surmises. In paragraph 29 it is observed and held as under “29. It is now well settled principle of law that conviction can be sustained on the sole testimony of the prosecutrix if it inspires confidence Vishnu v. State of Maharashtra1 SCC 283]. It is well settled by a catena of decisions of this Court that there is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon without corroboration and as such it has been laid down that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the “probabilities factor” does not render it unworthy of credence as a general rule there is no reason to insist on corroboration except from medical evidence where having regard to the circumstances of the case medical evidence can be expected State of Rajasthan v. N.K.5 SCC 30].” to be In the case of Sham Singh v. State of Haryana 18 SCC 34 it is observed that testimony of the victim is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement the courts should find no difficulty to act on the testimony of the victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It is further observed that seeking corroboration of her statement before relying upon the same as a rule in such cases amounts to adding insult to injury. In paragraphs 6 and 7 it is observed and held as under “6. We are conscious that the courts shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix which are not of a fatal nature to throw out an otherwise reliable prosecution case. If the evidence of the prosecutrix inspires confidence it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice The testimony of the prosecutrix must be appreciated in the background of the entire case and the court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations or sexual assaults.2 SCC 384]8 SCC 635).” Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and as observed hereinabove we see no reason to doubt the credibility and or trustworthiness of the prosecutrix. She is found to be reliable and trustworthy. Therefore without any further corroboration the conviction of the accused relying upon the sole testimony of the prosecutrix can be sustained Now so far as the submission on behalf of the accused that as there were no external or internal injuries found on the body of the prosecutrix and therefore it may be a case of consent is concerned the aforesaid has no substance at all. No such question was asked even remotely to the prosecutrix in her cross examination. Therefore the aforesaid submission is to be rejected outright Now so far as the submission on behalf of the accused that the learned trial Court erred in not believing DW1 and erred in not believing the defence and the plea of alibi that on the night of the incident he had gone to Indore and was not present in the village is concerned at the outset it is required to be noted that cogent reasons have been given by the learned trial Court not to believe DW1 and not to believe the plea of alibi raised by the accused. DW1 belongs to the same village of the accused. The reason to go to Indore has been disbelieved by the court It was the case on behalf of the accused and the defence that as one Babulal had met with an accident DW1 and the accused had gone to Indore taking Babulal and they had stayed at Indore on that night However it was found that Babulal had an injury before two months Defence had not produced the record of the hospital or examined doctor or employee of the hospital where the said Babulal was taken for treatment. According to the defence they had stayed in the house of Tulsiram at Indore but the said Tulsiram has not been examined. Even the Babulal has also not been examined. Under the circumstances the learned trial Court has rightly disbelieved the plea of alibi raised by the accused and has rightly disbelieved DW1. On appreciation of evidence the learned trial Court has specifically observed that the deposition of DW1 does not inspire any confidence Now so far as the submission on behalf of the accused that there was a delay of three days in lodging the FIR is concerned at the outset it is required to be noted that it was the specific and consistent case on behalf of the prosecutrix that immediately on the occurrence of the incident she narrated the incident to her sister in law and mother in law but they did not believe the prosecutrix. On the contrary they beat her. Even no other family members in her matrimonial home supported the prosecutrix and therefore she sent message to her parental house and thereafter she was taken to her parental house and FIR was lodged. It is very unfortunate that in this case the sister in law and mother in law though being women did not support the prosecutrix On the contrary she was compelled to go to her parental house and thereafter the FIR was lodged. Being women at least the sister in law and mother in law ought to have supported the prosecutrix rather than beating her and not believing the prosecutrix. Therefore when in such a situation the delay has taken place in lodging the FIR the benefit of such delay cannot be given to the accused who as such was the relative 10. Now so far as the prayer on behalf of the accused to reduce the sentence considering the proviso to Section 376 IPC is concerned as per section 376 IPC pre amendment the minimum punishment shall be seven years. However as per the proviso the court may for adequate and special reasons to be mentioned in the judgment impose a sentence of imprisonment for a term of less than seven years. No exceptional and or special reasons are made out to impose the sentence of imprisonment for a term of less than seven years. On the contrary and in the facts and circumstances of the case it can be said that accused has been dealt with lightly by imposing the minimum sentence of seven years rigorous imprisonment only. The victim was the relative. Nobody in the family at matrimonial home supported her and she suffered the trauma. She was compelled to go to her parental house and thereafter she was able to lodge the FIR. The accused has come out with a false case plea of alibi which is not accepted by the courts below. Under the circumstances the prayer of the appellant to reduce the sentence and or to convert the sentence from seven years rigorous imprisonment to seven years simple imprisonment is not accepted and it is rejected In view of the above and for the reasons stated above the present appeal fails and the same deserves to be dismissed and is accordingly dismissed. The conviction and sentence awarded to the accused appellant herein for the offence under Section 376 IPC is hereby NEW DELHI DECEMBER 01 2021

Tolerance for other religious practises is required; this country takes pride in its Unity in Diversity. – Madras High Court

In the Preamble to the Constitution of India “we the people” had determined to establish India as a Secular Republic. Article 15(1), which states that the state shall not discriminate against anyone based on criteria like as religion, and Article 51A(e), which states that it is the Fundamental Duty of every citizen to promote harmony and brotherhood, were also mentioned. The Fundamental Rights and Duties were sacred and binding on courts that dealt with religious matters. These were discussed by the single bench of Honourable Mr. Justice C. V. Karthikeyan in the case of Paulraj vs District Collector and others (W.P(MD)No.11276 of 2020). The gist of the case is the petitioner is a resident of Neduvilai, Kodaivilai, Maruthancode Post, Kanyakumari District. The petitioner, however, has raised objections particularly against the fifth respondent herein, who had apparently build a church, which in the eyes of the petitioner is causing nuisance because the respondent conducts prayers using loudspeakers through out day and night.  In previous petitions the petitioner sought relief by directing the first and second respondents therein namely, the Superintendent of Police, Kanyakumari and the Inspector of Police, Marthandam Police Station, Kanyakumari District to ensure that the third to sixth respondents therein, who are private individuals cannot use their house for prayer purpose by using loudspeakers and to remove the CCTV cameras put by the third to sixth respondents in their house facing the house of the petitioner herein. However, the present has been filed owing to the fact that the first respondent had passed an order of approval granting building permission for the church and consequential orders have been passed by the fourth respondent therein. It is stated that prior to the issuance of confirmation of such permission, the petitioner was not heard. The learned counsel for the petitioner had relied on a judgment of learned Single Judge of this Court and the Hon’ble Supreme Court wherein, permission granted to run a church had been examined. In South India Assemblies of God Vs the District Collector, Kanyakumari District and others,(W.P.No.11903 of 2003) the relief sought was of negative nature seeking a Mandamus restraining the right of the petitioner, Assemblies of God to Church situated at Kanyakumari. The single bench of Honourable Mr. Justice C. V. Karthikeyan observed and stated that “if the first respondent/District Collector either by himself/herself or through the second respondent/Sub Collector, Padmanabhapuram, were to impress upon the fifth respondent to practice tolerance and respect, then I am confident that sense and sensibility would prevail over pride and prejudice.”

W.P(MD)No.112720BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED : 10.01.2022CORAM THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYANW.P(MD).No.112720andW.M.P(MD).Nos.9856 9857and 98620 and 151221 Paulraj ... PetitionerVs.1.The District Collector Kanyakumari District. Nagercoil.2.The Sub Collector Padmanabhapuram Thuckalay Kanyakumari District.3.The Superintendent of Police Nagercoil Kanyakumari District.4.The Executive Officer Pacode A Town Panchayat Vilavancode Taluk Kanyakumari District.5.Y.Thangaraj ...Respondents1 10 https: www.mhc.tn.gov.in judis W.P(MD)No.112720Prayer : Writ Petition filed under Article 226 of the Constitution of India praying this Court to issue a Writ of Certiorari to call for the records pertaining to the impugned order passed by the first respondent herein in Pa.Mu.Ci 3 28581 2016 dated 06.03.2020 and the consequential impugned proceedings passed by the fourth respondent herein in Building Plan No.17 20 21 dated 07.07.2020 and quash the same as illegal. For Petitioner : Mr.C.KishoreFor R1 to R4 : Mr.N.Satheesh Kumar Additional Government PleaderORDERIn the preamble to the Constitution of India we the people have resolved to Constitute India as a secular Republic. Article 15(1) is as follows:15.Prohibition of discrimination on grounds of religion race caste sex or place of birth(1)The State shall not discriminate against any citizen on grounds only of religion race caste sex place of birth or any of them.2 10 https: www.mhc.tn.gov.in judis W.P(MD)No.112720 Article 51 Ais as follows:51A.Fundamental duties it shall be the duty of every citizen of India(e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious linguistic and regional or sectional diversities to renounce practices derogatory to the dignity of women.2.The Fundamental Rights and Duties are sacrosanct and binding on the Courts which adjudicate issues relating to the religion.3.The writ petition has been filed in the nature of Certiorari calling for the records of the impugned order passed by the first respondent District Collector Kanyakumari District dated 06.03.2020 and consequential proceedings passed by the fourth respondent Executive officer Pacode A Town Panchayat Vilavancode Taluk Kanyakumari District dated 07.07.2020 and to interfere with the same.3 10 https: www.mhc.tn.gov.in judis W.P(MD)No.1127204.The petitioner is a resident of Neduvilai Kodaivilai Maruthancode Post Kanyakumari District. He says that he is a Hindu. One of the basic tenants to be followed by every Hindu is tolerance. Tolerance must be his own community or religion and in particular to also to every other religious practice.5.The petitioner however has raised objections particularly against the fifth respondent herein who had apparently build a church which in the eyes of the petitioner is causing nuisance because the respondent conducts prayers using loudspeakers through out day and night. 6.The petitioner herein had earlier filed W.P.(MD).No.91219 and it is claimed that it is pending. The relief in that writ petition was to direct the first and second respondents therein namely the Superintendent of Police Kanyakumari and the Inspector of Police Marthandam Police Station Kanyakumari District to ensure that the third to sixth respondents therein who are private individuals cannot use their house for prayer purpose by using loudspeakers and to remove the CCTV cameras put by the third to sixth respondents in their house facing the house of the petitioner herein.4 10 https: www.mhc.tn.gov.in judis W.P(MD)No.1127207.W.P.(MD).No.91221 had already been disposed of based on an undertaking of the fifth respondent herein that he would not use loudspeakers. I am informed that learned Single Judge of this Court had examined the particular relief sought and had also directed to remove or refocusing of the CCTV cameras.8.However that is not the grievance in the present writ petition. The present has been filed owing to the fact that the first respondent had passed an order of approval granting building permission for the church and consequential orders have been passed by the fourth respondent therein. It is stated that prior to the issuance of confirmation of such permission the petitioner was not heard.9.The petitioner is a resident in the area and building permission is issued only to the person who applies for such permission. The petitioner being a resident is not directly involved with the construction. He may have grievances over the activities which are being conducted or for which the building is put to use.5 10 https: www.mhc.tn.gov.in judis W.P(MD)No.11272010.The learned counsel for the petitioner had relied on a judgment of learned Single Judge of this Court and the Hon ble Supreme Court wherein permission granted to run a church had been examined. In W.P.No.119003 South India Assemblies of God Vs the District Collector Kanyakumari District and others the relief sought was of negative nature seeking a Mandamus restraining the right of the petitioner Assemblies of God to Church situated at Kanyakumari. The learned Single Judge had passed an elaborate order and had dismissed the Writ Petition. Therefore the District Collector had refused to give permission to put up a Church.11.In the instant case the District Collector quite apart from examining all aspects had finally granted permission to the fourth respondent to put up a Church or rather to convert the existing house into a church. It is complained by the learned Counsel for the petitioner that the building or now the Church is in a residential area. However it is seen that there is also a temple in that particular residential area. The petitioner should learn to live with everybody else around him. This country takes the pride in unity in diversity. There cannot be diversity in unity. The petitioner should accept the group of people 6 10 https: www.mhc.tn.gov.in judis W.P(MD)No.112720living across and around with him and he should also accept that people of various faith and various caste creed and religion and given rights under the constitution. The country is a secular country recognising practice of religion. The petitioner cannot make compliant against the same. The District Collector Kanyakumari District may by himself herself or through the Sub Collector Padmanabhapuram have a meeting with the fourth respondent and impress upon the fifth respondent that it is only prudent to be restrained and it is not required that a prayer should put forth in loudspeakers for the God to hear. Let the fourth respondent also realise his responsibilities and appreciate that liberty has been granted to him to respect the residence in that area. Let the prayers be conducted in a gentle manner.12.Therefore if the first respondent District Collector either by himself herself or through the second respondent Sub Collector Padmanabhapuram were to impress upon the fifth respondent to practice tolerance and respect then I am confident that sense and sensibility would prevail over pride and prejudice.7 10 https: www.mhc.tn.gov.in judis W.P(MD)No.11272013.The Writ Petition is disposed of. No costs. Consequently the connected Miscellaneous Petitions are closed. 10.01.2022Index : Yes NoInternet : Yes NosnNote : In view of the present lock down owing to COVID 19 pandemic a web copy of the order may be utilized for official purposes but ensuring that the copy of the order that is presented is the correct copy shall be the responsibility of the advocate litigant concerned.8 10 https: www.mhc.tn.gov.in judis W.P(MD)No.112720To1.The District Collector Kanyakumari District. Nagercoil.2.The Sub Collector Padmanabhapuram Thuckalay Kanyakumari District.3.The Superintendent of Police Nagercoil Kanyakumari District.4.The Executive Officer Pacode A Town Panchayat Vilavancode Taluk Kanyakumari District.9 10 https: www.mhc.tn.gov.in judis W.P(MD)No.112720`C.V.KARTHIKEYAN J. sn W.P(MD).No.112720 10.01.202210 10

Right to property is not a fundamental right : Supreme Court

It has been observed over time and given the decisions of this court that the right to property has been severely undermined due to its character being that of a legal right and not a fundamental right. The evolving jurisprudence of this court also underlines that it is a valuable right ensuring guaranteed freedoms and economic liberty.This remarkable judgement was passed by the bench of the Supreme Court, consisting of Justice S Ravindra Bhat and Justice Indira Banerjee in the matter of B. K. Ravichandra & Ors. V Union Of India & Ors., [CIVIL APPEAL NO. 1460/2010]. A land owner was evicted from his land by the government for the governmental use of the property under the Requisitioning and Acquisition of Immovable properties Act, 1952. The owner appealed to the High Court praying for the government to vacate the land. Although the court did not grant this relief, it however granted relief in terms of prosecuting the government for adequate compensation. As mandated by Section 8 (2) of the Requisitioning Act, this dispute was referred to an arbitrator. Several issues were raised by the owner such as, amount of compensation payable, the recurring payments in respect of the periods of requisition and the sums equal to the rent that would have been payable for the occupation and use of the property and other sums towards 4 years of losses, i.e. pecuniary loss expense on account of the vacating of the requisitioned premises, expenses on account of re- occupying of premises after release from acquisition and damages other than normal repairs. The appeal was made to the Supreme Court. Firstly, in disagreement to the findings and order of the High Court in refusing to grant relief to the owners, the Apex Court opined, “the Union asserted that it had acquired at least some parts of the suit lands; these were examined by the High Court on two occasions, and in arbitration proceedings under the Requisitioning Act, on three occasions. Each time, the factual findings went against the Union. The Union’s occupation ceased to be lawful, with the lapse of the Requisitioning Act, in 1987. Yet, it has implacably refused to hand back possession, each time asserting that it has some manner of rights over it. The High Court, while noticing that the Union’s claim had no merits (in both its appeal, which was dismissed, as well as in the impugned judgment, disposing of the writ petition), nevertheless refused to issue any direction for the release of the suit lands”.

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1460 2010 B. K. RAVICHANDRA & ORS. ...APPELLANT(S) UNION OF INDIA & ORS. ...RESPONDENT(S) JUDGMENT S. RAVINDRA BHAT J. 1. This appeal by special leave questions a judgment of the Karnataka High Court1. The High Court rejected the appellants’ claim to direct the respondent hereafter called “the Union”) to vacate their lands leaving it open to the latter to initiate appropriate proceedings for acquisition of certain landsthe Requisitioning Act was to be 1 Dated 11.01.2008 in W.P. 8340 2006 2 By virtue of Section 1(3) the Act was initially temporary and to remain in force for six years. 2 in force for six years. Section 3 clothed the Union with the power to requisition properties for any public purpose Section 7 provided the procedure to requisition lands. It also spelt out the condition precedents for exercise of the power. Section 8 provided for compensation with regard to property. Section 8(2) laid out the principles applicable for determination of compensation for the property as a recurring one3. On 27.02.1958 the Requisitioning Act was amended and the period of its operation extended. In the meanwhile the Defence of India Act 1962 was enacted by Parliament empowering the Central Government with powers akin to those enacted under the Requisitioning Act. The Union invoked its powers under the DIA and requisitioned the three described properties which belonged to the predecessor of the appellants in Byppanahalli Bangalore South Taluk. The then owner late B.M. Krishnamurthy the appellants’ predecessor handed over the possession of the suit lands under protest these were taken over under Section 30 of the DIA. The competent authority fixed the compensation for these lands by order dated 3 Section 8(2)provided inter alia as follows: Section 8(b) provided for payment of following matters namely: i) pecuniary loss due to requisitioning “a recurring payment in respect of the period of requisition of a sum equal to the rent which would have been payable for the use and occupation of the property if it had been taken on lease for the period.” b) such sum or sums if any as may be found necessary to compensate the person interested for all or any of the ii) expenses on account of vacating the requisitioned premises iii) expenses on account of reoccupying the premises upon release from requisition and iv) damagescaused to the property during the period of requisition including the expenses that may have to be incurred for restoring the property to the condition in which it was at the time of requisition. 3 18.12.1964. The approval for this compensation fixation was given much later in 1968. By Act 463 Section 1(3) of the Requisitioning Act was amended and the period of operation of the Requisitioning Act was extended till 14.03.1970. In the meanwhile the DIA lapsed with effect from 10.01.1968. The Requisitioning Act was amended incorporating Section 25 which enacted that the immovable property requisitioned under the DIA which had not been released as on 10.01.1968 was deemed to have been requisitioned under the Requisition Act. It also continued the status quo with respect to determination of compensation completed under the DIA. This Amendment Ordinance was replaced by an actual amendment to the Requisitioning Act. The Requisitioning Act was again amended in 19704 to delete Section 1(3) of the main Act. The Amendment Act also enabled requisitioning of property and stated that requisitions were to be continued and were to be released after 12 years subsequently the period of 12 years was extended to 17 years)5. In late 1972 the predecessor of the appellants felt that the compensation fixed for the suit lands was inadequate and applied for enhancement. This was in 4 Act 70. The effect of this amendment Act was to change the temporary character of the legislation. 5 Section 6(1A) reads as follows: “ 6. Release from requisitioning.—(1) The Central Government may at any time release from requisition any property requisitioned under this Act and shall as far as possible restore the property in as good a condition as it was when possession thereof was taken subject only to the changes caused by reasonable wear and tear and irresistible force: Provided that where the purposes for which any requisitioned property was being used cease to exist the Central Government shall unless the property is acquired under section 7 release that property as soon as may be from requisition. 1A) Notwithstanding anything contained in sub section the Central Government shall release from requisition — a) any property requisitioned or deemed to be requisitioned under this Act before the commencement of the Requisitioning and Acquisition of Immovable Property Act 1970 on or before the expiry of a period offrom such commencement ” 4 terms of the amendment of 1970 contemplated retention of property for a total period of 3 years. Therefore the recurring payment was in respect of a short duration. The period of requisition under Section 8(2A)6 for the 6 “Section 8(2A) reads as follows: The recurring payment referred to in clause of sub section in respect of any property shall unless the property is sooner released from requisition under Section 6 or acquired under Section 7 be revised in accordance with the provisions of sub sectionin a case where such property has been subject to requisition under this Act for the period of five years or a longer period immediately preceding the commencement of the Requisitioning and Acquisition of Immovable PropertyAct 1975— i) first with effect from the date of such commencement and ii) secondly with effect from the expiry of five years and thirdly with effect from the expiry of ten years from such commencement ] b) in a case where such property has been subject to requisition under this Act immediately before such commencement for a period shorter than five years and the maximum period within which such property shall in accordance with the provisions of sub section of Section 6 be released from requisition or acquired extends beyond five years from such commencement — i) first with effect from the date of expiry of five years from the date on which possession of such property has been surrendered or delivered to or taken by the competent authority under Section 4 and ii) secondly with effect from the date of expiry of five years and thirdly with effect from the date of expiry of ten years from the date on which the revision made under sub clausetakes effect ] c) in any other case — i) first with effect from the date of expiry of five years from the date on which possession of such property has been surrendered or delivered to or taken by the competent authority under Section 4 and ii) secondly with effect from the date of expiry of five years and thirdly with effect from the date of expiry of ten years from the date on which the revision under sub clausetakes effect.] 5 purpose of compensation determination was during the pendency of the reference increased to five years. The reference was notified in a Gazette notification published by the Central Government. On 17.07.1975 the Arbitrator pronounced an Award which determined compensation as 6% per annum on the capital value of land assessed at ₹ 3 per square foot accepting the land requisitioned to be in Survey nos.103 2 and 104 in Byppanahalli. The Central Government had in the arbitration proceeding contended that the suit lands had also been acquired by virtue of a prior notification. The arbitrator considered this contention too and after examining the award of the LAC held: “From the evidence of RW 2 and also from the copy of the Ex R 13 and possession certificate as per Ex.R 14 it is established that 24 guntas and 29 sq. yards of land in S. No.103 2 and 8 guntas of land and 22 yards of land in S. No.104 of Byyappanahali were acquired for the purpose of NGEF and possession was taken by NGEF deducting the said acquired portion of the land in S. No.103 2 and 104 of Byyappanahalli the claimant would be the owner of the said lands in ARE No.72 73.” In view of the evidence it was also held that the appellants’ predecessor was entitled to receive compensation in respect of Survey No.104 deducting the portion of land acquired for the purposes of NGEF. This Award was made on The Requisitioning Act underwent a further amendment7. Section 8(2B) stated that recurring payment would be revised by re determining the amount8. 7 Act 75 which amended Section 6(1A) and substituted 10 years for the existing period for compensation determination. It also added Section 8(2A) by creating a deeming fiction that unless the property was released from requisition under Section 6 or duly acquired under Section 7 the recurring payment would be revised under provision of newly added sub sectionreads as follows: “(2B) The recurring payment in respect of any property shall be revised by re determining such payment in the manner and in accordance with the principles set out in sub sectionread with clauseof sub section6 As a consequence of this amendment of 1975 the recurring payment required to be determined and fixed under Section 8(2) had to be first decided and fixed with effect from the date of commencement of the Act and again with effect from the expiry of five years from the commencement of the amending Act. The amending Act came into force on 07.03.1975. To continue the narrative the arbitrator’s award was appealed against by the UOI. The award had determined compensation in terms of the DIA and later since it lapsed in 1968 also having regard to the principles spelt out in Section 8 of the Requisitioning Act as amended. On 21.07.1978 the Central Government’s appeal was disposed of in terms of a joint memo filed by the parties by which it was agreed that the matter with respect to determination of compensation would be remanded remitted for fresh adjudication however the compensation fixation of 10.01.1968 was agreed to be final and binding. The only caveat added was that the question of maintainability of appeals under Section 11 of the Requisitioning Act was pending before this Court in certain proceedings. However the parties agreed that till disposal of appeal by the arbitrator the compensation fixed @ ₹ 3 per square foot would be operative. It was further agreed that in case the appeals were not held to be maintainable the compensation fixed by the award was to be treated as final. But on the other hand if the appeal was held to be maintainable the arbitrator had to decide the fixation of compensation for the period prior to 10.01.1968. By a judgment of this Court9 it was held that an award covering the period of requisition can be challenged in appeal and that the award made under DIA was not appealable. Thus the compensation fixation for the period upto as if such property had been requisitioned under this act on the date with effect from which the revision has to be made under such sub sectionSCR 4 7 10.01.1968 in this casebecame final. 10. On 28.01.1985 in the second arbitration proceeding based on the fixation of compensation till 10.01.1968 it was held that the fixation of compensation till 10.01.1968 had to be accepted and basic fixation of rent was to be increased for over 5 years thereafter. The arbitrator then proceeded to fix the rental compensation payable per square foot for 3 distinct periods i.e. 10.01.1968 to 10.01.197310.01.1973 to 10.01.1975and 10.01.1978 to 10.01.1985 was introduced to the Requisitioning Act thus the recurring compensation question had to be decided from 10.01.1968 and then 10 Reported as Union of India v B.M. Krishnamurthy 1995KarLJ 607. 8 from the commencement of the Amendment Act and again from the expiry of that Act. It therefore held upon a reading of Section 8(2A) that “recurring compensation payable in this case from 10.01.1968 to the commencement of the amendment Act 75 upto 07.03.1975 shall be fixed and for the period 07.03.1975 it should be done as indicated in Section 8(2A). ” 11. The award therefore was set aside and the matter was remitted for fresh consideration by the arbitrator. In this freshround the arbitrator published two awards one dealing with the extent of land and the other the compensation payable. After examining all the evidence including the documentary evidence presented by the parties as well as the oral testimony i.e. the oral deposition on behalf of the UOI it was held that Survey nos. 103 1 and 103 2 were not validly acquired by the Central Government and that Survey No.104 was validly acquired. The other award determined the land value and recurring annual value at different rates which is set out below in a tabular form: Sl. No. Rate to be calculated for 2 acres 39 guntas) 10.1.1968 to 07.03.1975 ₹ 1 per square foot 6% p.a. 07.03.1975 to 07.03.1980 ₹ 1.5 per square foot 6% p.a. 07.03.1980 07.03.1985 ₹ 5 per square foot 6% p.a. 07.03.1985 07.03.1990 ₹ 25 per square foot 6% p.a. 07.03.1990 07.03.1995 ₹ 45 per square foot 6.5% p.a. 07.03.1995 07.03.2000 ₹ 100 per square foot 6% p.a. 9 12. Aggrieved by the two awards both dated 28.02.2000 the Union preferred an appeal before the Karnataka High Court. During its pendency the widow of the late BM Krishnamurthy and the present appellants her children filed a writ petitionclaiming that since the period of requisition had ended and the suit lands had not been acquired the possession of the Union after 1987 was untenable in law. In a judgment delivered on 11.01.2008the Division Bench of the Karnataka High Court rejected the contentions of the Union vis a vis its acquisition of suit lands or any part thereof and noted that the court was concerned “only with Sy. Nos. 103 1 and 103 2 for the period between 1968 and 2000 and so far as Sy. No. 104 is concerned between the period 1968 and 1977 as the portion of the land measuring 11985.24 square feet undisputedly came to be acquired”. It upheld the awards of the arbitrator fixing the compensation in 2000 and held that: “Accordingly in view of the discussion and reasoning stated above we confirm the fact that neither Sy. No. 103 1 nor Sy. No. 103 2 ever came to be validly acquired by the authorities for the benefit of appellant herein. We hold the rental compensation computed by the arbitrator is just and proper.” 13. The Union sought special leave to appeal under Article 136 of the Constitution against the said judgment dismissing its appeal11. By order dated 10.09.2010 that special leave petition was dismissed keeping it open for the Union to acquire the property in accordance with law. Thus as regards the question of ownership and the rental payable till the period 07.03.2000 the issue attained finality. By the impugned judgment delivered 11.01.2008 the Division 11 SLPCC No. 12634 2008. 10 Bench after considering the records dismissed the appellants’ writ petition and held that “It is also noticed from the records originally the land in question came to be handed over to the defence authorities It is also noticed from the records originally the land in question came to be handed over to the defence authorities by invoking the provisions of defence of India Act 1962 which act came to be repealed on 10.01.1968. By virtue of Section 25 of the Requisitioning Act 1952 whatever has been done under the Defence Act of India is presumed to have been done under Requisitioning Act the authorities could not have held the property beyond 08.03.1987 at any cost. We say so because withing the said period of 07.03.1987 apparently there was no valid acquisition of properties by the concerned authorities as noted above. the Requisitioning Act therefore u s 6 of It is also brought to our notice that though portions of land in different Sy. Numbers adjacent to these lands came to be acquired in the year 1972 and also on earlier occasions such acquisitions never came to be challenged by the respective owners and the defence authorities continued to be in possession of those properties as beneficiaries after acquiring the said lands by the competent authority. We notice that from the contentions of the defence authorities right from 1941 till date about 600 acres is in possession of them and some of the lands are acquired other than the lands in question. This Sy. No. 103 seems to be in the centre of that 600 acres on this vast area of 600 acres which is enclosed by a fence by the authorities. They have put up firing range buildings parade ground In that view of the matter as we noted above already at this late hour of the day it would not be just and proper to direct the respondents to hand over the possession of those properties. In the connected MFA No. 2220 02 we have already approved the computation of rental compensation awarded by the arbitrator upto 07.03.2000. The petitioners are entitled to seek compensation for the subsequent period in accordance with law. The Respondents defence authorities and the State Government are at liberty to initiate acquisition proceedings so far as these lands are concerned if they need in respect of property in Sy. No. 102 1 and 103 2 as well for the benefit of the defence authorities.” The contentions 14. Mr. Mohan Parasaran the appellant’s senior counsel argued that having upheld the main contentions with respect to the ownership and title of the suit lands the impugned judgment erred in law in refusing to grant the reliefs claimed in the writ proceedings. It was argued that even if arguendo any acquisition notification had covered any period upto 1975 with the coming into force of the 1984 amendments to the Land Acquisition Act a period of 2 years was statutorily granted by Parliament to complete the acquisition i.e. to issue the award. Since concededly there was no award valid ever made by virtue of the operation of law i.e. Section 11A12 the question of ownership which was decided by the arbitrator in the first and third award became conclusive and binding. It was also urged that the directions of the earlier Division Bench ruling in B.M. Krishamurthy13 were specifically to determine the extent of land acquired in compliance the arbitrator in the third arbitration proceedings by the first award decided the extent of acquired land. Those findings of the arbitrator rendered by virtue of the earlier remand became final because the Union’s appeal was rejected by the Division Bench. Further the special leave petition against that judgment was rejected by this court. 12 Section 11A reads as follows: “11A. Period shall be which an award within made. The Collector shall make an award under section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period the entire proceeding for the acquisition of the land shall lapse: Provided that in a case where the said declaration has been published before the commencement of the Land AcquisitionAct 1984the award shall be made within a period of two years from such commencement. Explanation In computing the period of two years referred to in this section the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a Court shall be 13 Supra n. 10 12 It was argued that once the issue of ownership stood settled conclusively the Union had to vacate the suit property because its possession was not justified or authorized by law. Learned counsel relied on the ruling of this court14 which held recollecting an earlier judgment in State of Haryana v Mukesh Kumar15 that the right to property is “not only a constitutional or statutory right but a human right”. This court quoted with approval earlier judgments which had ruled that deprivation of possession of one’s property without a law was untenable. It was argued that the determination of compensation was up to the period ending in 2000 i.e. 20 years ago. In the meanwhile the value of property as well as recurring value of compensation had risen astronomically as the suit lands had great commercial potential. 16. Mr. K.M. Natraj learned Additional Solicitor General urged this court not to interfere with the impugned judgment. According to him the High Court correctly denied the claim to release of lands since it was a dispute which had to be decided by the civil court. The learned ASG sought to argue that the findings with regard to extent of ownership were ambiguous and the courts committed errors in ignoring that the suit lands were acquired through notifications in 1941. Mr. Natraj contested the submission that the lands were unlawfully occupied pointing out that the properties were requisitioned validly and that those orders were never questioned by either the predecessor of the appellants or them in any 17. From the narration of events it is clear that first the suit properties were requisitioned in 1963 under the DIA. The amendment to the Requisition Act properly instituted proceedings. Analysis and findings 14 Vidya Devi v. State of H.P.2020SCC 569. 15 2013SCC 353 13 which enacted Section 25 in 1968 had the effect of creating a deeming fiction that requisitions under the DIA were deemed to be under the Requisitioning Act. Thereafter due to successive amendments to the Requisitioning Act the period of requisition continued it finally ended in 1987. In the meanwhile the original landowner late Krishnamurthy sought and was granted a reference to arbitration on the issue of compensation payable. The first award made in 1975 decided both the question of extent of land requisitioned the dispute was remitted. This time the arbitrator rendered two awards one deciding the question of ownership or its extent and the second on the question of compensation determination. The Union appealed to the High Court that appeal17 was dismissed by a judgment delivered on the same day as the impugned judgment. The Union’s special leave petition was dismissed 10 years ago provides for payment of compensation in accordance with predetermined principles. Yet the taking of property by definition is finite: it cannot result in expropriation or deprivation of title altogether unless another process for acquiring it is initiated. 19. Whilst dealing with a similar enactment18 this court in Grahak Sanstha Manch v. State of Maharashtra19 held through a Constitution Bench that requisition by its nature is temporary and that the landowner’s right to property cannot remain suspended indefinitely at the wishes of the state or its agencies: this Court “16. We find ourselves in agreement with the view taken in the cases of Collector of Akola1 SCR 401 : AIR 1968 SC 244] and Jiwani Kumar Paraki4 SCC 612] that the purpose of a requisition order may be permanent. But that is not to say that an order of requisitioning can be continued indefinitely or for a period of time longer than that which is in the facts and circumstances of the particular case reasonable. We note and approve in this regard as in Jiwani Kumar Paraki case4 SCC 612] the observations of the Nagpur High Court in the case of Mangilal Karwa v. State of M.P.which have been reproduced above. That the concept of requisitioning is temporary is also indicated by the Law Commission in its Tenth Report and as pointed out earlier by the terms of the said Act itself as it originally stood and as amended from time to time. There is no contradiction in concluding that while a requisition order can be issued for a permanent public purpose it cannot be continued indefinitely. Requisitioning might have to be resorted to for a 18 The Bombay Land Requisition Act 1948 194 SCC 192 at page 204 15 permanent public purpose to give an example to tide over the period of time required for making permanent premises available for it. The concepts of acquisition and requisition are altogether different as are the consequences that flow therefrom. A landlord cannot in effect and substance be deprived of his rights and title to property without being paid due compensation and the effect of prolonged requisitioning. Requisitioning may be continued only for a reasonable period what that period should be would depend upon the facts and circumstances of each case and it would ordinarily be for the Government to decide.” 20. When this court had to adjudicate in Rajendra Kumar Gupta v. State of U.P20 on somewhat similar facts i.e. the requisition having been resorted to during a national emergency under the DIA and its continuance under the Requisitioning Act the question which arose was the continued possession by the state. The court held that such possession long after the requisition period had ceased was contrary to law and observed that: “14. We therefore will have to examine the efficacy of the impugned order from the point of view of its prolonged duration uptil now which as seen earlier has been spread over more than two decades from the date on which it got its birth on 29 10 1976. For deciding this question we will assume with the respondents for the sake of argument that on the day on which it was passed it was validly passed under the provisions of Section 23. Even then the moot question still remains whether such an emergency order of requisition which might be justified in those days when it was passed could now be permitted to continue indefinitely. For answering this question we may usefully refer to the decision of the Constitution Bench of this Court in the case of Grahak Sanstha Manch4 SCC 192] . The Constitution Bench has in terms laid down that even though a requisition order can be issued for a permanent public purpose under the provisions of the Bombay Land Requisition Act 1948 it cannot be the relevant observations made in this connection by Bharucha J. speaking for the indefinitely. We may usefully refer 204 SCC 511 at page 525 16 majority of the Constitution Bench in paragraphs 16 and 17 of the Report:should be still permitted We have already shown that in the context of the emergency provisions of the Act in question the powers which could be exercised for requisitioning properties under Section 23 by their very nature could not be utilised for requisitioning immovable properties for an indefinite period. Such requisition virtually amounts to acquisition. In the facts and circumstances of this case it must be held that when years back the parent Act had ceased to operate and the internal and external emergency declarations had stood withdrawn now obviously there is no rhyme or reason why such a requisition order which by efflux of time has become stale and its very purpose has become obsolete should be permitted to be continued any further and the appellants’ properties requisitioned and in possession of the respondents. In the facts and circumstances of the case therefore it must be held that continued requisition of the appellants leasehold premises by now at least must be treated to have become unreasonable and it would necessarily indicate abuse of power and a colourable exercise thereof. It must be held that the impugned requisition order even assuming that it was valid and kicking and was not stillborn when it was passed in 1976 by now it has lost its efficacy and has become a dead letter in the present set of circumstances obtaining today. Even on this ground the continuance of the impugned requisition order cannot be sustained and has to be put an end to. The third point is also therefore answered in the affirmative in favour of the appellants and against the In this connection we may also note that it is not the case of 15. the respondents that now they require to acquisition the requisitioned premises on a permanent basis for the purpose for which they were initially requisitioned by exercise of powers under Section 30 of the Act. In fact the said provision could have been pressed in service by Respondent 3 if at all during the currency of the Act which provision is obviously not available to them now. Non exercise of powers under Section 30 for acquiring these requisitioned properties during the time the Act was in force itself shows that even according to the respondents the Government did not require the said requisitioned land to be acquired for its purposes or that it was felt that the cost of restoration of the requisitioned property by the Government would be 17 excessive. During the pendency of these proceedings this Court had earlier directed by order dated 21 9 1984 that status quo will remain so far as the construction in any part of the open space is concerned. That status quo was continued by an order of 29 10 1984. However by a latter order dated 9 2 1987 while granting special leave this Court had refused to grant stay but had made it clear that the respondents will not be entitled to claim the benefit of Section 30 of the Defence and Internal Security of India Act 1971 in the event of the appeal being allowed. Any further construction effected by the respondents will not be pleaded as defence during the hearing of the appeal. Under these circumstances therefore there cannot remain any valid defence for the respondents against the restoration of possession of the requisitioned premises to the appellants once the impugned order of requisition is found to be invalid in view of our findings on the aforesaid points for determination. In the result the appeal is allowed. The judgment and order of 16. the High Court are set aside. The writ petition filed by the appellants before the High Court is allowed. The impugned order of requisition of the premises in question dated 29 10 1976 is quashed and set aside. The respondents are directed to restore the possession of these requisitioned properties forthwith to the appellants by clearing off whatever construction may be existing on the spot and making available the requisitioned properties in their original form and shape to the appellants. The respondents are directed to comply with this order within eight weeks from the date of receipt of copy of this order at their end. In the facts and circumstances of the case there will be no order as to costs.” 21. Although the right to property is not a fundamental right protected under Part III of the Constitution of India21 it remains a valuable constitutional right. The importance of this right has been emphasized and iterated several times by this court. In Delhi Airtech Services Pvt Ltd v. State of U.P22 for instance this court underlined the issue as follows: 21 By reason of deletion of Article 19 (f) and Article 31 with sub heading “Right to Property” which were omitted by the Constitution 44th Amendment Act 1978. Article 31(1) was in effect enacted as Article 300A through an insertion in Chapter IV Part XII of the Constitution. 22 9 SCC 354 18 tyranny and economic oppression of “30. It is accepted in every jurisprudence and by different political thinkers that some amount of property right is an indispensable safeguard against Government. Jefferson was of the view that liberty cannot long subsist without the support of property." Property must be secured else liberty cannot subsist" was the opinion of John Adams. Indeed the view that property itself is the seed bed which must be conserved if other constitutional values are to flourish is the consensus among political thinkers and jurists.” Earlier in State of Rajasthan v. Basant Nahata23 this court highlighted that a property owner’s rights cannot be deprived stating that: “59. ..In absence of any substantive provisions contained a parliamentary or legislative act he cannot be refrained from dealing with his property in any manner he likes. Such statutory interdict would be opposed to one’s right of property as envisaged under Article 300 A 300 A of the Constitution.” The decision in K.T. Plantation Pvt. Ltd. v. State of Karnataka24 interpreted Article 300A and held that: “168. Article 300A proclaims that no person can be deprived of his property save by authority of law meaning thereby that a person cannot be deprived of his property merely by an executive fiat without any specific legal authority or without the support of law made by a competent legislature. The expression “property” in Article 300 A confined not to land alone it includes intangibles like copyrights and other intellectual property and embraces every possible interest recognized by law. 169. This Court in State of W.B. v. Vishnunarayan and Associates P) Ltd.6 while examining the provisions of the West Bengal Great Eastern Hotel Act 1980 held in the context of Article 300 A that the State or executive officers cannot interfere with the right of others unless they can point out the specific provisions of law which authorises their rights.” 2312 SCC 77 249 SCC 1 19 Other judgments of this court have also highlighted the importance of the right under Article 300 A in the context of regulatory laws and enactments which do not directly result in expropriation or acquisition but rather in an oblique and indirect fashion block the right to enjoyment of properties underlining that the essential theme of Article 300 A is unauthorized deprivation which would result in an indefinite suspension of the right to property. The court stressed that the law should be explicit about the nature and effect of the deprivation expressing the intention to do so. Therefore in T. Vijayalakshmi v. Town Planning Member25 this court observed that: “13. Town Planning legislations are regulatory in nature. The right to property of a person would include a right to construct a building. Such a right however can be restricted by reason of a legislation. In terms of the provisions of the Karnataka Town and Country Planning Act a comprehensive development plan was prepared. It indisputably is still in force. Whether the amendments to the said comprehensive development plan as proposed by the Authority would ultimately be accepted by the State or not is uncertain. It is yet to apply its mind. Amendments to a development plan must conform to the provisions of the Act. As noticed hereinbefore the State has called for objection from the citizens. Ecological balance no doubt is required to be maintained and the courts while interpreting a statute should bestow serious consideration in this behalf but ecological aspects it is trite are ordinarily a part of the town planning legislation. If in the legislation itself or in the statute governing the field ecological aspects have not been taken into consideration keeping in view the future need the State and the Authority must take the blame therefor. We must assume that these aspects of the matter were taken into consideration by the Authority and the State. But the rights of the parties cannot be intermeddled with so long as an appropriate amendment in the legislation is not brought into force. 258 SCC 502 20 15. The law in this behalf is explicit. Right of a person to construct residential houses in the residential area is a valuable right. The said right can only be regulated in terms of a regulatory statute but unless there exists a clear provision the same cannot be taken away. ….” emphasis supplied) This court has also recognized that regulatory laws which have the effect of impacting the right to property should be strictly construed.26 In a very recent judgment D.B. Basnett v. Land Acquisition Officer 27 the court approved the findings of the courts below that the lands were never acquired because the procedure prescribed was not followed notice of acquisition had not been given nor was any amount proved to have been received. The court also turned down the state’s plea of adverse possession and granted relief in the following terms: “20. We are conscious that the land is being used by the respondent State through Respondent 2 Department. That however does not give such a licence to the State Government. We had endeavoured to refer the matter for mediation to find an amicable solution but that did not fructify. We however would like to give some time to the respondent State to analyse the consequences of this judgment and in case they so desire to acquire the land through a proper notification under the said Act and to take proper recourse in law so as to enable them to keep the land. We grant three months time from the date of the 26 State of U.P. v. Manohar 2 SCC 126 Delhi Airtech Services Ltd. Bhavnagar University v. Palitana Sugar MillLtd. 2 SCC 111 Shrirampur Municipal Council v. Satyabhamabai Bhimaji Dawkher 2013SCC 627 : especially the following observation: “Shri Naphade s interpretation of the scheme of Sections 126 and 127 if accepted will lead to absurd results and the landowners will be deprived of their right to use the property for an indefinite period without being paid compensation. That would tantamount to depriving the citizens of their property without the sanction of law and would result in violation of Article 300 A of the Constitution.” Ref. also to Shrirampur Municipal Council v. Satyabhamabai Bhimaji Dawkher 5 SCC 627 Chairman Indore Vikas Pradhikaran v. Pure Industrial Coke & Chemicals Ltd. 8 SCC 705 Ramchandra Ravindra Waghmare v. Indore Municipal Corporation 1 SCC 667 and more recently in M.C. Mehta v Union of India 2020 SCC Online658. 274 SCC 572 at page 580 21 judgment for the respondent State to make up their mind as to what they want to do. Would they still like to retain the land by issuing a proper notification or would they like to surrender possession of the land. In either eventuality the question of payment for use and occupation would still arise which will have to be determined in accordance with law. Mesne profits would be determined by a Court Commissioner to be appointed by the trial court as a relief in that behalf has been sought in the plaint itself.” 24. To sum up the facts repeatedly the Union asserted that it had acquired at least some parts of the suit lands these were examined by the High Court on two occasions and in arbitration proceedings under the Requisitioning Act on three occasions. Each time the factual findings went against the Union. The Union’s occupation ceased to be lawful with the lapse of the Requisitioning Act in 1987. Yet it has implacably refused to hand back possession each time asserting that it has some manner of rights over it. The High Court while noticing that the Union’s claim had no meritsnevertheless refused to issue any direction for the release of the suit lands. The rationale given was that the adjoining areas had been acquired and were used by the Union for defense purposes. What is more the impugned judgment granted indefinite time to the Union to take steps to acquire the suit lands. The Union has not chosen to do so these last 12 years. These facts paint a stark even sordid picture. 25. The United States of America set up an exclusive courtwhich enabled the crown in the UK to assert its right to insist that it was not bound by the law unless there was express statutory intent29. Mercifully a later judgment30 overruled that understanding. In Superintendent and Remembrancer of Legal Affairsthis court held that “23. The next question is whether this Court should adopt the rule of construction accepted by the Privy Council in interpreting statute vis a vis the Crown. There are many reasons why the said rule of construction is inconsistent with and incongruous. In the present set up we have no Crown the archaic rule based on the prerogative and perfection of the Crown has no relevance to a democratic republic it is inconsistent with the rule of law based on the doctrine of It is therefore no longer open to the state: in any of its formsto claim that the law or the constitution can be ignored or complied at its convenience. The decisions of this court and the history of the right to property show that though its pre eminence as a fundamental right has been undermined nevertheless the essence of the rule of law protects it. The evolving jurisprudence of this court also underlines that it is a valuable right ensuring guaranteed freedoms and economic liberty. The 29 In Director of Rationing and Distribution v. Corporation of Calcutta1 SCR 158] where this Court held that the State was not bound by the provisions of a state law and was not liable to prosecution for its contravention. Sinha C.J. spoke for the majority Sarkar J. concurred separately and Wanchoo J. recorded his dissent. The reasoning of Sinha C.J. is found in the following passage: “It is well established that the common law of England is that the King s prerogative is illustrated by the rule that the Sovereign is not necessarily bound by a statutory law which binds the subject…. That was law applicable to India also as authoritatively laid down by the Privy Council in the case referred to aboveL. Rule 73 I.A. 271] itmust be interpreted as including the common law of England which was adopted as the law of this country before the Constitution came into force.”2 SCR 170 23 phrasing of Article 300 A is determinative and its resemblance with Articles 21 and 265 cannot be overlooked they in effect are a guarantee of the supremacy of the rule of law no less. To permit the state: whether the Union or any state government to assert that it has an indefinite or overriding right to continue occupying one’s propertywhatever be the pretext is no less than condoning lawlessness. The courts’ role is to act as the guarantor and jealous protector of the people’s liberties: be they assured through the freedoms and the right to equality and religion or cultural rights under Part III or the right against deprivation in any form through any process other than law. Any condonation by the court is a validation of such unlawful executive behavior which it then can justify its conduct on the anvil of some loftier purpose at any future time aptly described as a “loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”31 27. For the above reasons this court holds that the impugned judgment committed an error in refusing relief to the appellants. 33 years is a long enough time even in India to be kept away from one’s property. The respondent Union is directed to hand back possession of the suit lands to the appellants within three months. Furthermore it is open to the appellants to seek compensation based on fresh fixation of capital value and recurring annual value based on the different five 31 The phrase is quoted from Justice Robert Jackson’s powerful and timeless dissent in Korematsu v United States 323 US 214order itself. A military order however unconstitutional is not apt to last longer than the military emergency. … once a judicial opinion rationalises such an order to show that it conforms to the Constitution or rather rationalises the Constitution to show that the Constitution sanctions such an order the Court for all times has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.” 24 year periods for the last 20 years. Such a claim shall be referred to arbitration within four weeks of receipt of the reference. The arbitrator shall proceed to pronounce the award within six months of receipt of the reference. This is independent of the Union’s obligation to vacate and hand over peaceful possession of the suit lands within three months. 28. The appeal is allowed in the above terms the appellants shall be paid costs quantified at ₹ 75 000 . New Delhi November 24 2020.

Compounding of offences is acquittal in-terms of the provisions in the CrPC but is not equivalent to being innocent: High Court of Chhattisgarh.

When a person is acquitted from a case with a compounding order due to the compromise between the parties, it cannot be treated as being innocent. Furthermore, he cannot claim that such an acquittal is sufficient to prove his innocence and he must be reinstated of all the powers e had prior to such an offence. This was held by Hon’ble Shri Justice P. Sam Koshy in the case of Chamru Sai Yadav Vs. State Of Chhattisgarh and Ors. [Writ Petition (S) No. 2726 of 2021] on 22nd June 2021. The brief facts of the case are, the petitioner worked under the respondents as a daily wage earner in 1984. His services were regularized on 08.09.2008. It was the condition of regularization that the credential of the petitioner and other workers would be subject to the verification and the regularization would be subject to the said verification including that of the character certificate to be provided by the Police Authorities. During such a process, it was revealed that the petitioner was involved in a criminal case and was also under judicial custody in 2009. In 2010, the employer issued a notice of one month ordering the termination of services of the petitioner. In 2018, the petitioner got the proceedings dismissed on the grounds of compromise.  He approached the employer with the order of the criminal court and asked the employer to reinstate him, which was declined. Aggrieved by this, the petitioner has filed this petition challenging the order of 2010. After listening to this, the court made three observations. Firstly, it believed that the challenge against the order of termination is highly belated since it has been more than 10 years since that order was issued. Secondly, the order was based only on the police verification report that revealed a criminal background against the petitioner. Third and the most important observation that the court made was, the dismissal order (2008) was passed in between the trial and the trial was never completed. The petitioner had entered into a compromise and had thus gotten the offences compounded. It further mentioned that the order of termination was not malafide relying on the judgement in State of Rajasthan vs Love Kush Meena wherein, “what is important to note is the fact that the view of this Court has depended on the nature of offence charged and the result of the same. The mere fact of an acquittal would not suffice but rather it would depend on whether it is a clean acquittal based on total absence of evidence or in the criminal jurisprudence requiring the case to be proved beyond reasonable doubt, that parameter having not been met, benefit of doubt has been granted to the accused”. Thus, the court held that, “The said order cannot be said to be an order of termination of service on account of his getting involved in a criminal case or having remained in judicial custody for a period of around two months. It is a case where the order of regularization in service, which was otherwise subject to verification, on verification of finding the criminal antecedent, the services have been discontinued and the same is also purely in accordance with the conditions stipulated in the order of regularization itself” and thus dismissed the petition.

1AFRHIGH COURT OF CHHATTISGARH BILASPUR Writ PetitionNo. 2726 of 20211.Chamru Sai Yadav S o Prem Sai Yadav Aged About 60 Years R o Village AndPost Machadoli Lalpur P.O. Bango Tahsil Katghora District KorbaChhattisgarh. Petitioner Versus 1.State Of Chhattisgarh Through The Secretary Department Of WaterResources Mahanadi Bhawan Atal Nagar Nava Raipur District RaipurChhattisgarh.2.Chief Engineer MinimataWater Resources DepartmentBilaspur Chhattisgarh. 3.Executive Engineer Minimata Bango Project Mandal Division No. 5 KharsiyaDistrict Raigarh Chhattisgarh.4.Executive Engineer Kelo Project Sarvekshan Division Raigarh DistrictRaigarh Chhattisgarh.5.Sub Divisional Officer Kelo Project Sarvekshan Division Sub Division No. 1Lakha District Raigarh Chhattisgarh.6.Collector Raigarh District Raigarh Chhattisgarh. RespondentsFor Petitioner:Shri K. P.S. Gandhi Advocates.For State:Ms. Akanksha Jain Dy.G.A.Hon ble Shri Justice P. Sam Koshy Order On Board 22.06.20211.Aggrieved by the order passed by the respondentsnotice.3.The facts of the case are that the petitioner herein was appointed underthe respondents as a daily wage employee in the year 1984 thereafterthe petitioner stood regularized in service on 08.09.2008has been passed and Annexure P 1 shows thatthe order of termination has been passed after giving one month notice.4.The said impugned order dated 20.04.2010 was never questioned orchallenged by the petitioner before any authority of law. Down the lineafter eight years pending the trial before the Trial Court the petitionercompromised the matter with the complainant and got the casecompounded and the case got disposed of vide order dated 14.07.2018before the Lok Adalat. Now the petitioner approaches the departmentfor treating the order of the Criminal Court dated 14.07.2018 as anorder of acquittal and thereby the petitioner be taken back inemployment.5.This Court is of the opinion that firstly the writ petition is highly belatedin as much as the challenge to the termination is after more than adecade. Secondly the order of termination is only on the basis of a 3Police verification report received by the Department wherein it wasfound that the petitioner was having a criminal background he has alsoremained under custody for about two months and the criminal casewas pending on the date when he was regularized. Thirdly what canalso not be overlooked is the fact that the order passed in favour of thepetitioner on 14.08.2018 is not after completion of the entire trial it s anorder where in the midst of a trial the petitioner entered into acompromise with the complainant and thereafter with the leave of theCourt offences have been compounded. Though it may have an effectof acquittal in terms of the provision of CrPC but what has to be alsoseem is whether on the date when the impugned orderwas passed i.e. on20.04.2010 the petitioner had a criminal antecedent and he wasinvolved in a criminal case for the aforesaid offences he had been injudicial custody for a period of around two months followed by a Policeverification report received by the department in respect of the criminalantecedent and the petitioner having a criminal background. 6.Under the circumstances the action on the part of the respondentswhen the impugned order was passed in the year 2010 can not be saidto be in any manner arbitrary or malafide. Only because in the year2018 the matter i.e. the criminal case got compounded by itself wouldnot give rise to an occasion for challenging a termination order whichwas otherwise passed only on the ground of criminal antecedent. Thesaid order can not be said to be an order of termination of service onaccount of his getting involved in a criminal case or having remained injudicial custody for a period of around two months. It is a case where 4the order of regularization in service which was otherwise subject toverification on verification of finding the criminal antecedent theservices have been discontinued and the same is also purely inaccordance with the conditions stipulated in the order of regularizationitself.7.The view of this Court gets fortified from a recent decision of theHon ble Supreme Court in CIVIL APPEAL NO.3894 OF 2020 in thecase of State of Rajasthan vs Love Kush Meena decided on 24 03 21wherein in paragraph 23 to 27 it has been held as under : “23.Examining the controversy in the present case in theconspectus of the aforesaid legal position what isimportant to note is the fact that the view of this Courthas depended on the nature of offence charged and theresult of the same. The mere fact of an acquittal wouldnot suffice but rather it would depend on whether it is aclean acquittal based on total absence of evidence or inthe criminal jurisprudence requiring the case to beproved beyond reasonable doubt that parameter havingnot been met benefit of doubt has been granted to theaccused. No doubt in that facts of the present case theperson who ran the tractor over the deceased lady wasone of the other co accused but the role assigned to theothers including the respondent herein was not of amere bystander or being present at site. The attack withknives was alleged against all the other co accusedincluding the respondent. 124. We may also notice this is a clear case where theendeavour was to settle the dispute albeit not with thejob in mind. This is obvious from the recital in thejudgment of the Trial Court that the compoundableoffences were first compounded during trial but since theoffence under Section 302 34 IPC could not becompounded the Trial Court continued and qua thoseoffences the witnesses turned hostile. We are of theview that this can hardly fall under the category of aclean acquittal and the Judge was thus right in using theterminology of benefit of doubt in respect of suchacquittal.25. The judgment in Avtar Singh’s caseon therelevant parameter extracted aforesaid clearly stipulatesthat where in respect of a heinous or serious nature ofcrime the acquittal is based on a benefit of reasonabledoubt that cannot make the candidate eligible.26. We may also note the submission of learned counselfor the respondent that as per para 38.3 in Avtar Singh’scasethe employer has to take intoconsideration the Government orders instructions rulesapplicable to the employee at the time of taking adecision. It is her say that the issue whether the circulardated 28.03.2017 would apply or not was res integra inview of the earlier order of the learned Judge dated14.05.2018. She has further contended that in any 2case the circular had come into force and as per thejudgment in Avtar Singh’s casepara 38.4 it isthe date of decision which is material and as on the dateof decision dated 23.05.2017 the said circular wasapplicable.27. We may note here that the circular dated 28.03.2017is undoubtedly very wide in its application. It seeks togive the benefit to candidates including those acquittedby the Court by giving benefit of doubt. However suchcircular has to be read in the context of the judicialpronouncements and when this Court has repeatedlyopined that giving benefit of doubt would not entitlecandidate for appointment despite the circular theimpugned decision of the competent authority dated23.05.2017 cannot be said to suffer from infirmity asbeing in violation of the circular when it is in conformitywith the law laiddown by this Court.8.For all the aforesaid reasons this Court does not find any strong casemade out by the petitioner calling for an interference with the impugnedorder Annexure P 1. The writ petition therefore sans merits and isaccordingly rejected. Sd 1. P. Sam KoshyJudgeJyotijha