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The lis involved in these cases is connected to each other.
Therefore, they were heard together and are being disposed of with
the following common order.
2. Crl.P.No. 3786 of 2022 is filed seeking to quash the order
dated 08.04.2022 passed in Crl.M.P. (Sr). No. 3550 of 2022 in File
No. ECIR/HYZO/14/2021 by the Metropolitan Sessions Judge –
cum – Special Court Under PMLA Act, 2002 at Hyderabad.
Likewise, Crl.P.No. 4127 of 2022 and Crl.P.No. 4137 of 2022 are
filed to quash the orders dated 13.04.2022 and 31.03.2022 in File
No. ECIR/HYZO/14/2021 respectively. The petitioner is A.1 in the
said crime.
3. Heard Mr. T. Niranjan Reddy learned Senior Counsel
representing Mr. Avinash Desai learned counsel for the Petitioner
and Mr. Anil Prasad Tiwari, learned Spl. Public Prosecutor for
Directorate of Enforcement for the Respondent.
4. The Petitioner is the Chairman and Managing Director of
Respondent authority had registered ECIR/HYZO/14/2021 for the
offence of money laundering under the Prevention of Money
Laundering Act, 2002 (hereinafter ‘PMLA’) against KSBL. The
allegations against KSBL and the Petitioner include diversion of
large-scale clients funds through shell companies which resulted in
huge losses to the investors. It is further alleged that the clients’
money was misused by the shell companies created by KSBL and
the said money was transferred to the Petitioner and his family
5. Various FIRs were registered against the Petitioner and he
was arrested on 19.08.2021 in relation to Crime No. 100 of 2021
which is pending on the file of P.S. Central Crime Station
Hyderabad. The Petitioner in the said crime was remanded to
judicial custody. Pursuant to a P.T. warrant dated 10.01.2021, the
Petitioner was produced before the Metropolitan Sessions Judge –
cum – Special Court (hereinafter ‘Designated Court’) on
20.01.2021. On the same day, the Petitioner was remanded to
judicial custody.
6. The Petitioner has been in jail since 20.01.2022.
According to the Petitioner, the offences alleged against him are
not punishable for a term not less than ten years, death, life
imprisonment. Therefore, he is entitled for statutory bail under
Section 167(2) of the Cr.P.C. as the investigation is not completed
within sixty (60) days of his remand.
7. According to the Petitioner, the period of sixty days
expired on 21.03.2022. Therefore, on 21.03.2022, he filed an
application seeking default bail under Section 167 (2) of the
Cr.P.C. citing expiry of sixty days. The said application was
returned as infructuous on the ground that a charge sheet/complaint
was filed by the Respondent herein on 19.03.2022 which was
before the expiry of sixty days.
8. However, subsequently on 31.03.2022 another application
under Section 167 was filed by the Respondent herein seeking
extension of remand. According to the Petitioner, the application
was filed seeking further custody of the Petitioner to complete the
investigation. The said application was allowed and the custody of
the Petitioner was extended till 13.04.2022.
9. The Petitioner relying on the application dated 31.03.2022
filed by the Respondent which stated that investigation is yet to be
completed, filed another default bail application dated 01.04.2022
under Section 167(2) of the Cr.P.C. In the said bail application, the
Petitioner contended that no complaint/charge sheet was filed in
terms of Section 173(2) of the Cr.P.C. as investigation is yet to be
completed. The said bail application was returned as infructuous on
08.04.2022. The said order also stated that the application dated
31.03.2022 seeking extension of remand was returned as charge
sheet was already filed on 19.03.2022.
10. Subsequently, another application dated 13.04.2022
under Section 167 of the Cr.P.C. was filed by the Respondent
herein seeking extension of remand. The said application was
allowed and the remand was extended till 27.04.2022.
11. The Petitioner in the present criminal petitions has
challenged the order dated 31.03.2022 in ECIR/HYZO/14/2021, in
Crl.P.No. 4137 of 2022, order dated 13.04.2022 in
ECIR/HYZO/14/2021, in Crl.P.No. 4127 of 2022 and order dated
08.04.2022 in Crl.M.P.(sr) No.3350 of 2022 in
ECIR/HYZO/14/2021, in Crl.P.No. 3786 of 2022, inter alia, on the
ground that he is entitled for statutory bail under Section 167(2) of
i. A complaint in the nature of interim report was filed on
19.03.2022. No complaint/charge sheet in terms of
Section 173(2) of the Cr.P.C. is filed as the investigation
admittedly is not completed. Therefore, in the absence of
completion of investigation, the Petitioner is entitled for
statutory bail under Section 167(2) of the Cr.P.C. after a
period of sixty days which accrued on 21.03.2022.
ii. The complaint dated 19.03.2022 was filed only to deny
statutory bail to the Petitioner.
iii. The object of Section 167(2) of the Cr.P.C. is to complete
the investigation within the prescribed time. Failure of the
prosecution to complete investigation and file charge
sheet within prescribed time will give the accused a right
of statutory bail. Reliance was placed on M. Ravindran
v. Intelligence Officer, Directorate of Revenue
iv. The Designated Court has no power to return the bail
application filed under Section 167(2) of the Cr.P.C.
Reliance was placed on Directorate of Enforcement v.
v. The Petitioner was not produced before the Designated
Court when the remand was extended.
i. A complaint/charge sheet was already filed on
19.03.2022. Therefore, statutory bail under Section
167(2) of the Cr.P.C cannot be claimed once the charge
sheet is filed. Reliance was placed on Serious Fraud
Investigation Office v. Rahul Modi3.
ii. Remand was extended under Section 309 of the Cr.P.C.
and the Respondent can seek custody of the Petitioner to
complete further investigation under Section 44(2) of the
Order dated 15.02.2022 passed in Criminal Petition Nos. 9825, 9846 and 10021 of 2021.
iii. The Petitioner is trying to claim statutory bail to
overcome the requirement of bail under Section 45 of the
iv. The Petitioner did not oppose remand which was extended
under Section 309 of the Cr.P.C. Reliance was placed
Sunil Kumar Sharma v. State4.
14. In the present case, the issue before the Court is whether
the Petitioner is entitled for statutory bail under Section 167(2) of
the Cr.P.C. For the sake of convenience, the chronology of dates is
20.01.2022 Petitioner was remanded to judicial custody
and has been in jail since then.
19.03.2022 Alleged Complaint/charge sheet was filed by
21.03.2022 The date on which statutory bail accrues
after the expiry of sixty days under Section
31.03.2022 The remand of the Petitioner was extended
investigation is pending.
01.04.2022 Application seeking statutory bail under
Section 167(2) is filed.
08.04.2022 The bail application dated 01.04.2022 is
13.04.2022 The remand of the Petitioner is further
Before deciding the issue at hand, it is apposite to discuss the
object and scope of Section 167(2) of the Cr.P.C.
(2) The Magistrate to whom an accused person is forwarded under this
section may, whether he has or has not jurisdiction to try the case, from
time to time, authorise the detention of the accused in such custody as
such Magistrate thinks fit, for a term not exceeding fifteen days in the
whole; and if he has no jurisdiction to try the case or commit it for trial,
and considers further detention unnecessary, he may order the accused to
be forwarded to a Magistrate having such jurisdiction:
(a) the Magistrate may authorise the detention of the accused person,
otherwise than in the custody of the police, beyond the period of fifteen
days; if he is satisfied that adequate grounds exist for doing so, but no
Magistrate shall authorise the detention of the accused person in custody
under this paragraph for a total period exceeding,-
(i) ninety days, where the investigation relates to an offence punishable
with death, imprisonment for life or imprisonment for a term of not less
(ii) sixty days, where the investigation relates to any other offence, and,
on the expiry of the said period of ninety days, or sixty days, as the case
may be, the accused person shall be released on bail if he is prepared to
and does furnish bail, and every person released on bail under this sub-
section shall be deemed to be so released under the provisions of
Chapter XXXIII for the purposes of that Chapter.
(b) no Magistrate shall authorise detention in any custody under this
section unless the accused is produced before him;
(c) no Magistrate of the second class, not specially empowered in this
behalf by the High Court, shall authorise detention in the custody of the
police.
15. Section 167(2) of the Cr.P.C. obligates the investigative
agencies to complete the investigation in a time bound manner. The
object behind incorporating a time limit to complete investigation
was explained by a full bench of the Supreme Court inRavindran
(Supra). The relevant paragraphs are extracted below:
17. Before we proceed to expand upon the parameters of
the right to default bail under Section 167(2) as interpreted by
various decisions of this Court, we find it pertinent to note the
observations made by this Court in Uday Mohanlal
Acharya [Uday Mohanlal Acharya v. State of Maharashtra,
(2001) 5 SCC 453 : 2001 SCC (Cri) 760] on the fundamental
right to personal liberty of the person and the effect of
deprivation of the same as follows: (SCC p. 472, para 13)
“13. … Personal liberty is one of the cherished objects of
the Indian Constitution and deprivation of the same can only be
in accordance with law and in conformity with the provisions
thereof, as stipulated under Article 21 of the Constitution.
When the law provides that the Magistrate could authorise the
detention of the accused in custody up to a maximum period as
indicated in the proviso to sub-section (2) of Section 167, any
further detention beyond the period without filing of a challan
by the investigating agency would be a subterfuge and would
not be in accordance with law and in conformity with the
provisions of the Criminal Procedure Code, and as such, could
be violative of Article 21 of the Constitution.”
17.1. Article 21 of the Constitution of India provides that
“no person shall be deprived of his life or personal liberty
except according to procedure established by law”. It has been
settled by a Constitution Bench of this Court in Maneka
Gandhi v. Union of India [Maneka Gandhi v. Union of India,
(1978) 1 SCC 248] , that such a procedure cannot be arbitrary,
unfair or unreasonable. The history of the enactment of Section
167(2) CrPC and the safeguard of “default bail” contained in
the proviso thereto is intrinsically linked to Article 21 and is
nothing but a legislative exposition of the constitutional
safeguard that no person shall be detained except in accordance
with rule of law.
17.2. Under Section 167 of the Code of Criminal Procedure,
1898 (“the 1898 Code”) which was in force prior to the
enactment of the CrPC, the maximum period for which an
accused could be remanded to custody, either police or judicial,
was 15 days. However, since it was often unworkable to
conclude complicated investigations within 15 days, a practice
arose wherein investigating officers would file “preliminary
charge-sheets” after the expiry of the remand period. The State
would then request the Magistrate to postpone commencement
of the trial and authorise further remand of the accused under
Section 344 of the 1898 Code till the time the investigation was
completed and the final charge-sheet was filed. The Law
Commission of India in Report No. 14 on Reforms of the
Judicial Administration (Vol. II, 1948, pp. 758-760) pointed
out that in many cases the accused were languishing for several
months in custody without any final report being filed before
the courts. It was also pointed out that there was conflict in
judicial opinion as to whether the Magistrate was bound to
release the accused if the police report was not filed within 15
17.3. Hence the Law Commission in Report No. 14
recommended the need for an appropriate provision specifically
providing for continued remand after the expiry of 15 days, in a
manner that “while meeting the needs of a full and proper
investigation in cases of serious crime, will still safeguard the
liberty of the person of the individual”. Further, that the
legislature should prescribe a maximum time period beyond
which no accused could be detained without filing of the police
report before the Magistrate. It was pointed out that in England,
even a person accused of grave offences such as treason could
not be indefinitely detained in prison till commencement of the
17.4. The suggestion made in Report No. 14 was
reiterated by the Law Commission in Report No. 41 on The
Code of Criminal Procedure, 1898 (Vol. I, 1969, pp. 76-77).
The Law Commission re-emphasised the need to guard
against the misuse of Section 344 of the 1898 Code by filing
“preliminary reports” for remanding the accused beyond
the statutory period prescribed under Section 167. It was
pointed out that this could lead to serious abuse wherein
“the arrested person can in this manner be kept in custody
indefinitely while the investigation can go on in a leisurely
manner”. Hence the Commission recommended fixing of a
maximum time-limit of 60 days for remand. The
Commission considered the reservation expressed earlier in
Report No. 37 that such an extension may result in the 60-
day period becoming a matter of routine. However, faith
was expressed that proper supervision by the superior
courts would help circumvent the same.
17.6. It was in this backdrop that Section 167(2) was
enacted within the present day CrPC, providing for time-
limits on the period of remand of the accused,
proportionate to the seriousness of the offence committed,
failing which the accused acquires the indefeasible right to
bail. As is evident from the recommendations of the Law
Commission mentioned supra, the intent of the legislature
was to balance the need for sufficient time-limits to
complete the investigation with the need to protect the civil
liberties of the accused. Section 167(2) provides for a clear
mandate that the investigative agency must collect the
required evidence within the prescribed time period, failing
which the accused can no longer be detained. This ensures
that the investigating officers are compelled to act swiftly
and efficiently without misusing the prospect of further
remand. This also ensures that the court takes cognizance
of the case without any undue delay from the date of giving
information of the offence, so that society at large does not
lose faith and develop cynicism towards the criminal justice
17.9. Additionally, it is well-settled that in case of any
ambiguity in the construction of a penal statute, the courts
must favour the interpretation which leans towards
protecting the rights of the accused, given the ubiquitous
power disparity between the individual accused and the
State machinery. This is applicable not only in the case of
substantive penal statutes but also in the case of procedures
providing for the curtailment of the liberty of the accused.
17.10. With respect to the CrPC particularly, the Statement
of Objects and Reasons (supra) is an important aid of
construction. Section 167(2) has to be interpreted keeping in
mind the threefold objectives expressed by the legislature,
namely, ensuring a fair trial, expeditious investigation and trial,
and setting down a rationalised procedure that protects the
interests of indigent sections of society. These objects are
nothing but subsets of the overarching fundamental right
guaranteed under Article 21.
16. From the above decision, it is clear that a time limit for
completing investigation was incorporated in order to ensure that
the accused does not languish in jail for the investigative
authority’s failure to complete investigation. It was held that the
right to statutory bail accrues on a person if the charge sheet is not
filed within the prescribed period of sixty days. The said right to
bail is indefeasible and is interlinked with personal liberty as
envisaged under Article 21 of the Constitution of India.
17. This Court would like to clarify as to when a person is
entitled for statutory bail under Section 167(2) of Cr.P.C. It was
contended on behalf of the Petitioner that Section 167(2) of Cr.P.C.
comes into operation if no cognizance is taken within the
prescribed period. The said contention cannot be accepted. The test
to determine whether a person is entitled for bail under Section
167(2) of Cr.P.C. is not the date of taking cognizance but the date
of filing charge sheet. In other words, the right of statutory bail
ceases to exist the moment a charge sheet is filed within the
prescribed period of sixty or ninety days.
18. The Supreme Court in Rahul Modi (Supra) clarifying
11. It is clear from the judgment of this Court
in Bhikamchand Jain (supra) that filing of a charge-sheet
is sufficient compliance with the provisions of Section
167, CrPC and that an accused cannot demand release on
default bail under Section 167(2) on the ground that
cognizance has not been taken before the expiry of 60
days. The accused continues to be in the custody of the
Magistrate till such time cognizance is taken by the court
trying the offence, which assumes custody of the accused
for the purpose of remand after cognizance is taken. The
conclusion of the High Court that the accused cannot be
remanded beyond the period of 60 days under Section 167
and that further remand could only be at the post-
cognizance stage, is not correct in view of the judgment of
this Court in Bhikamchand Jain (supra).
16. A close scrutiny of the judgments in Sanjay
Dutt (supra), Madar Sheikh (supra) and M. Ravindran
(supra) would show that there is nothing contrary to what
has been decided in Bhikamchand Jain (supra). In all the
above judgments which are relied upon by either side, this
Court had categorically laid down that the indefeasible
right of an accused to seek statutory bail under Section
167(2) of CrPC arises only if the charge-sheet has not
been filed before the expiry of the statutory period.
Reference to cognizance in Madar Sheikh (supra) is in
view of the fact situation where the application was filed
after the charge-sheet was submitted and cognizance had
been taken by the trial court. Such reference cannot be
construed as this Court introducing an additional
requirement of cognizance having to be taken within the
period prescribed under proviso (a) to Section 167(2),
CrPC, failing which the accused would be entitled to
default bail, even after filing of the charge-sheet within the
statutory period. It is not necessary to repeat that in
both Madar Sheikh (supra) and M. Ravindran (supra), this
Court expressed its view that non-filing of the charge-
sheet within the statutory period is the ground for availing
the indefeasible right to claim bail under Section 167(2),
CrPC. The conundrum relating to the custody of the
accused after the expiry of 60 days has also been dealt
with by this Court in Bhikamchand Jain (supra). It was
made clear that the accused remains in custody of the
Magistrate till cognizance is taken by the relevant court.
As the issue that arises for consideration in this case is
squarely covered by the judgment in Bhikamchand
Jain (supra), the order passed by the High Court on
31.05.2019 is hereby set aside.
To decide whether the Petitioner is entitled to statutory bail, this
Court has to decide whether a charge sheet/complaintdated
19.03.2022 was filed or not. It is relevant to note that, in the
present case the proceedings are initiated under the PMLA. Section
44 of the PMLA provides that the offences under PMLA are triable
by Special Courts. The Special Court can take cognizance of an
offence only based on a complaint which is filed by the authorised
authority under Section 44(1)(b) of the PMLA.
19. The complaint filed under Section 44(1)(b) of the PMLA
is similar to a charge sheet/ final report filed under Section 173(2)
of Cr.P.C. In other words, similar to a charge sheet under Section
173(2) of Cr.P.C., a complaint under Section 44(1)(b) of the
PMLA is filed after completion of investigation, so that the Special
Court can take cognizance under Section 167 of the Cr.P.C. It is
relevant to note that the filing of the complaint and subsequent
cognizance under PMLA is governed by the provisions of the
Cr.P.C. in view of Section 65 of the Cr.P.C.
20. In the present case, the Respondent contended that a
complaint under Section 44(1)(b) of the PMLA was already filed
on 19.03.2022. Therefore, the Petitioner is not entitled for statutory
bail under Section 167(2) of the Cr.P.C. This Court cannot accept
the contention of the Respondent as the investigation was not
completed when the complaint dated 19.03.2022 was filed.
21. The Supreme Court in Satya NarainMusadi v. State of
Bihar5 discussing Section 173(2) of the Cr.P.C. has held that a
charge sheet can be filed only after the completion of investigation.
The relevant paragraph is extracted below:
9. Section 173(2)(1) provides that on completion of the
investigation the police officer investigating into a
cognizable offence shall submit a report in the form
prescribed by the State Government and stating therein
(a) the names of the parties; (b) the nature of the
information; (c) the names of the persons who appear to be
acquainted with the circumstances of the case; (d) whether
any offence appears to have been committed and, if so, by
whom (e) whether the accused has been arrested; (f)
whether he has been released on his bond and, if so,
whether with or without sureties; and (g) whether he has
been forwarded in custody under Section 170. Sub-section
(5) of Section 173 makes it obligatory upon the police
officer to forward along with the report all documents or
relevant extracts thereof on which the prosecution
proposes to rely and the statements recorded under Section
161 of all the persons whom the prosecution proposes to
examine as witnesses at the trial.
Similarly, the Supreme Court in Manu Sharma v. State (NCT of
Delhi)6 has held that the object behind Section 173 of the Cr.P.C.
is to complete the investigation and file the charge sheet. The idea
is to ensure that cognizance is taken without any delay. The
relevant paragraph is extracted below:
206. Section 173 commands the investigating agency to
complete the investigation expeditiously without
unnecessary delay and when such an investigation is
completed, the officer in charge of the police station
shall forward to a Magistrate empowered to take
cognizance of offence on a police report the details in
the form as may be prescribed by the State
Government and provide the information required
under this section.
22. From the above decisions, it is clear that a charge sheet
can be filed only after the completion of investigation.
Investigation is said to be completed if sufficient material is
collected by the Investigating Officer based on which cognizance
can be taken under Section 167 of the Cr.P.C. It was contended by
the Respondent that the complaint dated 19.03.2022 is a charge
sheet and only further investigation is being carried out which is
permissible under Section 44(1)(d)(ii). The said contention cannot
be accepted.
23. The Designated Court has extended the remand of the
accused on 31.03.2022 and subsequently on 13.04.2022 under
Section 167(2) of the Cr.P.C. on the ground that investigation is
pending. This clearly indicates that the complaint dated 19.03.2022
was filed without completing the investigation. Therefore, the
complaint dated 19.03.2022 is an incomplete complaint/charge
sheet. Further, if complaint dated 19.03.2022 was filed after
completion of investigation, the Designated Court would have
taken cognizance of the offence. Not taking cognizance of the
offence when complaint dated 19.03.2022 was already filed
indicates that investigation is incomplete. Therefore, complaint
dated 19.03.2022 cannot be treated as a complaint/charge sheet
under Section 173(2) of the Cr.P.C. The Supreme Court in
Ravindran (Supra) discussed how the Investigating Officers used
to file preliminary charge sheets to seek extension of remand
beyond the statutory period. It was to discourage such abuse of
process that a statutory limit of sixty days was incorporated in
Section 167(2) to complete the investigation and file the charge
sheet. In the present case, the Respondent cannot file a complaint
without completing the investigation and seek extension of remand
beyond the statutory period of sixty days. A complaint/charge sheet
filed without completing the investigation cannot be used to
circumvent the right of statutory bail under Section 167(2) of the
24. The Bombay High Court in Sharadchandra Vinayak
Dongre v. State of Maharashtra7 had to deal with a similar
situation. The State contended that charge sheet was already filed
but the investigation is yet to be completed. The Court therein drew
a distinction between completion of investigation and further
investigation. It held that it is only after the completion of
investigation and filing of charge sheet that further investigation
can be resorted to. In other words, Section 173(8) of the Cr.P.C.
comes into picture only after completion of investigation and filing
of the charge sheet under Section 173(2) of the Cr.P.C. Further, the
court held that by filing incomplete charge sheets, the State cannot
circumvent Section 167(2) of the Cr.P.C. The relevant paragraphs
23. Reference here may usefully be made to a decision
of the Supreme Court in Abhinandan Jha v. Dinesh Mitra,
AIR 1968 SC 117, which points out that the investigation
under the Code takes in several aspects and stages ending
ultimately with the formation of an opinion by the police
as to whether, as from the material covered and collected,
a case is made out to place the accused before the
Magistrate for trial and the submission of either a charge-
sheet or a final report is dependent on the nature of the
opinion so formed. The formation of the said opinion by
the police is the final step in the investigation evidenced
by the “police report” contemplated under section 173(2)
of the Code.
24. In my view, a plain reading of section 173 of the
Code shows that every investigation must be completed
without unnecessary delay and as soon as it is completed,
the Officer-in-charge of the Police Station shall forward a
report to the Magistrate in the form prescribed. Therefore,
there is no question of sending up of a “police report”
within the meaning of section 173, sub-section (2) of
Criminal Procedure Code until the investigation is
completed. Any report sent before the investigation is
completed will not be a police report within the meaning
of sub-section (2) of section 173 of the Criminal Procedure
Code read with section 2(r) of the Code and there is no
question of the Magistrate taking cognizance of the
offence within the meaning of section 190(1)(b) of the
Code on the basis of an incomplete charge-sheet. In the
present case, admittedly an incomplete charge-sheet has
been filed and it is specifically stated therein that the
investigation is not yet completed. The application,
Exhibit 2, clearly further recites that the investigation is
not completed and this fact is even admitted before me as
stated in the reply affidavit filed by the Investigating
Officer opposing the present Application. Consequently,
the incomplete charge-sheets cannot be treated as a “police
report” at all as contemplated under section 173(2) of the
Code to entitle the Magistrate to take cognizance of the
offences. The learned Counsel for the applicants is right in
contending that the definition of “police report” as given
in the Code cannot be enlarged under the guise of
interpretation and it is contended that when the meaning of
a statutory provision is plain and clear, the Court should
not be impelled by factors like practical difficulties and
inconvenience. The learned Counsel appears to be further
right when he canvassed that the expression “incomplete
charge-sheet” does not occur anywhere in the Code and
that forwarding of a “police report” after the completion of
the investigation is the requirement of sub-section (2) of
section 173 of the Code. Any report or statement of facts
in the form of an “incomplete charge-sheet” does not
become “police report” by merely giving a particular
25. The learned Counsel for the State contended
that the new provision added in sub-section (8) of
section 173 of the Code can be resorted to by the
Investigating Officer for collecting further evidence.
According to him, it tends to indicate that the
investigation is not shut but remains in suspended
animation till the police report is sent to the
Magistrate. As has already been pointed out, a police
report as defined in section 2(r) of the Code can only be
filed “as soon as the investigation is completed”. If it is
not complete; no such report can be filed. When no
report is forwarded as required by the Code, the
Magistrate cannot take cognizance. Thus, unless all
these steps are crossed, sub-section (8) cannot be
pressed in aid for collecting further evidence which
really can be called in aid if further evidence is
discovered after the filing of the charge-sheet or the
police report on the completion of the investigation.
26. As stated earlier, sub-section (2) of section 173
of the Code also speaks of taking cognizance of the
offence by a Magistrate on a police report. Thus,
without the police report as defined in section 2(r) of
the Code, the Magistrate is not empowered and is
incapacitated to take cognizance and unless cognizance
has been taken, sub-section (8) cannot be set in motion.
27. The question thus emerges naturally is, whether
the Magistrate can take cognizance on the admittedly
“incomplete charge-sheet” forwarded by the police.
The answer stubbornly and admittedly must be in the
negative, because the investigation is yet incomplete
and the “police report” yet remains to be filed. Thus,
the filing of the incomplete charge-sheet cannot
circumvent the provisions of sub-section (2) of section
173 of the Code and incomplete report or an
incomplete charge-sheet with whatsoever expression it
may be called does not meet the obligatory
requirements of law. If the view as contended by the
State is accepted, the provisions of section 167(2) or to
say section 468 of the Criminal Procedure Code can
always be circumvented by the prosecution and the
apparent legislative intents under those provisions
would not only be not effectuated but undoubtedly
stultified.
25. The Andhra Pradesh High Court in Akula Ravi Teja v.
State of A.P.8 dealt with a situation where a ‘preliminary charge
sheet’ was filed without completing the investigation. The Court
therein held that an incomplete charge sheet filed without
completing the investigation cannot be used to defeat the right of
statutory bail under Section 167(2) of the Cr.P.C. The relevant
19. Now the crucial question that arises for
determination is whether filing a preliminary charge-sheet
without completing the investigation would defeat the right
of the accused to claim default bail under proviso (a) to
Section 167(2) Cr.P.C. In this context, it is relevant to note
that the Parliament in its wisdom, considering the right of
the accused to speedy investigation, stipulated period of
time in proviso (a) to Section 167(2) Cr.P.C. stating that in
all offences which are punishable with death or life
imprisonment or with 10 years imprisonment, the
investigation is to be completed within 90 days and in other
offences, the investigation is to be completed within 60
days. The Code clearly envisaged that if the prosecuting
agency fails to complete the investigation within the said
stipulated period of time as contemplated under the Code,
the accused is entitled to claim default bail. The said right
conferred by the statute on the accused is an indefeasible
right and he is entitled to bail as a matter of right on
account of the default committed by the prosecuting agency
in completing the investigation within the time stipulated
by the statute.
20. It is significant to note that a plain reading of
proviso (a) to Section 167(2) Cr.P.C. makes it manifest that
what is required to claim for default bail under proviso (a)
to Section 167(2) Cr.P.C. is failure on the part of the
Investigating Agency to complete the investigation within
the stipulated period of time. In other words, it is the
default committed by the Investigating Agency to
complete the entire investigation within the stipulated
time that confers right on the accused to claim for
default bail. So, filing of charge-sheet is not the criteria
or the actual test to be applied to decide whether the
accused is entitled to default bail or not. It is relevant to
note that the charge-sheet after completion of
investigation will be filed to enable the Court to take
cognizance of the offence. So, the Court cannot take
cognizance of the offence on the basis of a preliminary
charge-sheet filed without completing the entire
investigation. Therefore, the crucial aspect that needs to
be ascertained to consider the claim of the accused for
default bail is whether the investigation is completed
within the stipulated time of 90 days or not. So, when
the Investigating Agency files only preliminary charge-
sheet within the said stipulated time keeping the
investigation pending or without completing the
investigation, it will not under any circumstances defeat
the right conferred on the accused to claim for default
bail. By mere filing a preliminary charge-sheet without
completing the entire investigation and filing a final and
full-fledged charge-sheet, the prosecuting agency cannot
vanquish the indefeasible statutory right of the accused
to claim for default bail.
21. The 3-Judge Bench of the Supreme Court in the
case of Rakesh Kumar Paul v. State of Assam2 held that
right to personal liberty under Article 21 of the Constitution
of India includes right to speedy investigation and
entitlement to “default bail” where statutory period of filing
charge-sheet has expired and accused has applied and is
willing to furnish bail.
22. A plain reading of Section 167 Cr.P.C. makes it
abundantly clear that it is not the intention of the legislation
that charge-sheet is to be filed within the stipulated period.
The intention of the legislation is that the investigation is to
be completed within the stipulated time. Nowhere in
Section 167 Cr.P.C. it is stated that the charge-sheet is to be
filed within the prescribed period of time. All that it is
stated in Section 167 Cr.P.C. is that the investigation is to
be completed within the said stipulated period of 90 days or
60 days, as the case may be. Therefore, the Court has to
see whether the investigation is completed or not while
considering the plea of the accused for grant of default
bail. Generally, charge-sheet will be filed only after
completion of the investigation. So, when the charge-
sheet is filed, it indicates that investigation is completed.
Therefore, it is in practice that when the Investigating
Agency files the charge-sheet that the Courts usually
presume that the investigation is completed. However, it
is to be noticed that at times, even when the
investigation is not fully completed that the police are in
the habit of filing preliminary charge-sheet or an
incomplete charge-sheet keeping some part of the
investigation pending as a clever contrivance and
subterfuge to prevent the accused from claiming default
bail by exercising his right conferred under the Code.
So, Courts must be on guard and should not fall in the
trap of such trickery and tactics of the investigating
agency when they only file preliminary charge-sheet
without fully completing the investigation. Therefore,
the real test to be applied to ascertain whether the
accused is entitled to default bail or not in a given case
is not to see whether the charge-sheet is filed or not. It
has to be ascertained whether the entire investigation is
completed or not within the stipulated period of time
and whether the said charge-sheet is filed after
completion of the entire investigation or not. A
preliminary charge-sheet filed without completing the
entire investigation cannot be allowed to serve as an
impediment to come in the way of exercising the
statutory right of the accused for default bail.
23. The very contents of the charge-sheet, which are
extracted above, clinchingly establishes that the
investigation is not completed and many crucial witnesses
are yet to be examined to prove the overt acts of the
accused in this crime and some other evidence as stated by
the investigating officer is still to be secured. Therefore, on
account of default committed by the prosecuting agency in
completing the investigation within the stipulated period of
time, the petitioner acquired an indefeasible right to claim
default bail under proviso (a) to Section 167(2) Cr.P.C.
24. In a petition filed under proviso (a) to Section
167(2) Cr.P.C. for grant of default bail, no discretion is
vested with the Magistrate/Court to deny bail to him. In the
judgment of the aforesaid 3-Judge Bench of the Apex
Court, it is clearly held that no discretion is vested with the
Court while granting default bail where accused satisfies
the prerequisite for grant thereof. The Apex Court in
another case Rajnikant JivanlalPatel v. Intelligence Officer,
Narcotic Control Bureau, New Delhi3 held as follows:
“The right to bail under Section 167(2) proviso (a)
thereto is absolute. It is a legislative command and not
Court's discretion. If the investigating agency fails to file
charge-sheet before the expiry of 90/60 days, as the case
may be, the accused in custody should be released on bail.
But at that stage, merits of the case are not to be examined.
Not at all. In fact, the Magistrate has no power to remand a
person beyond the stipulated period of 90/60 days.”
Therefore, the legal position is very clear that
irrespective of the gravity of the offence and the nature and
seriousness of the offence, the moment the accused claims
bail under proviso (a) to Section 167(2) Cr.P.C. on account
of the default committed by the Investigating Agency to
complete the investigation within the stipulated time, and
he is prepared to furnish bail, the Court has no other option
except to grant bail to him. The very nature of right which
is “indefeasible right” indicates that the said right cannot be
defeated or frustrated once accrued to the accused. Even
filing of preliminary charge-sheet cannot defeat the said
25. Therefore, in the considered opinion of the
Court, after analysing the law on the point, it would be
more in consonance with the legislative mandate to hold
that mere filing preliminary charge-sheet without
completing the investigation will not defeat the
indefeasible statutory right of the accused to claim for
default bail. In a way the right to claim bail by a
remanded accused touches the personal liberty of an
individual guaranteed under the Constitution of India.
Personal liberty is a valuable right of an individual and
it is one of the cherished objects of the Indian
Constitution. It can be deprived only in accordance with
law and in conformity with the provisions thereof, as
stipulated under Article 21 of the Constitution.
Therefore, when the law mandates that the Magistrate
could authorise detention of the accused in custody up
to a maximum period as indicated in the proviso to sub-
section (2) of Section 167 Cr.P.C. any further detention
beyond the period when, the investigation is not
completed and the final charge-sheet is not filed on
completion of the entire investigation by the
Investigating Agency would be a subterfuge and would
not be in accordance with law and in conformity with
the provisions of the Criminal Procedure Code.
Therefore, it could be violative of Article 21 of the
Constitution of India.
At the cost of repetition, this Court holds that the complaint dated
19.03.2022 was not a final complaint based on which cognizance
could have been taken. A complaint/report cannot be treated as
final report unless the investigation is completed, In the present
case, the investigation is admittedly not completed and the
statutory period of sixty days expired on 21.03.2022. Therefore, in
the absence of complete investigation and absence of filing a final
complaint, the Petitioner is entitled for statutory bail under Section
167(2) of the Cr.P.C.
26. It was sought to be contended on behalf of the
Respondent that the Petitioner was remanded not under Section
167 of the Cr.P.C. but under Section 309 of the Cr.P.C. The said
contention is ex facie misconceived. The Supreme Court in Dinesh
Dalmia v. CBI9 has held that Section 309 of the Cr.P.C. comes
into operation only after cognizance of the offence is taken. In the
present case, no cognizance is taken till date.
27. The Respondent relying on Y.S. Jagan Mohan Reddy v.
CBI10 and Ajay Kumar v. Directorate of Enforcement11
contended that economic offences are serious offences. It was
contended that the Petitioner is claiming bail under Section 167(2)
of the PMLA only to circumvent the strict rigors of bail under
Section 45 of the PMLA. The said contention cannot be accepted.
The investigative authority cannot rely on Section 45 of the PMLA
to deny statutory bail under Section 167(2) of the Cr.P.C. The
Supreme Court in Ashok Munilal Jain v. Directorate of
Enforcement12 held that an accused is entitled to statutory bail
under Section 167(2) of the Cr.P.C. even in PMLA proceedings.
The relevant paragraphs are extracted below:
5. We, thus, do not agree with the opinion of the High
Court that the provisions of Section 167(2) CrPC
would not be applicable to the proceedings under the
PMLA Act. In the present case, as no complaint was
filed even after the expiry of 60 days from the date
when the appellant was taken into custody, he was
entitled to statutory bail in view of the provisions
contained in Section 167(2) CrPC.
6. This appeal is, accordingly, allowed and as a result
thereof, the appellant shall be given the benefit of statutory
bail and be released forthwith subject to the conditions that
may be imposed by the trial court.
A perusal of the impugned order dated 08.04.2022 indicates that
the Designated Court has returned the application dated 31.03.2022
seeking extension of remand and the bail application dated
01.04.2022. According to this Court, the Designated Court has no
power to return the said applications. This Court in Kamma
Srinivas Rao (Supra) has held that it is incumbent on the
Designated Court to pass a reasoned order and not merely return
the applications. Neither the Cr.P.C. nor the PMLA contemplates
any provision which empowers the Designated Court to return
applications seeking remand or applications seeking bail. The
relevant paragraphs are extracted below:
47. A perusal of above orders clearly indicates that the
remand applications were returned. According to this
Court, the Designated Court cannot return a remand
application filed under Section 167(2) of Cr.P.C. It is
relevant to note that a Court performs a judicial function
while deciding an application for remand under Section
167(2) of the Cr.P.C. The Court while exercising the
judicial function under Section 167(2) of the Cr.P.C. is
bound to pass a judicial order by applying its mind. The
Court under Section 167 of the Cr.P.C. by passing a
judicial order has to, where there are adequate grounds for
proceeding with the investigation, remand the accused to
judicial custody or where no such further investigation is
required release him on bail on satisfying conditions as
prescribed.
49. It is also relevant to note that neither the Cr.P.C.
nor the Criminal Rules of Practice have any provisions
conferring the power on the Court to return an
application seeking remand under Section 167(2) of the
Cr.P.C. While the Code of Civil Procedure under
Order VII Rules 10 & 10A provides for return of
plaint, no such provision/procedure is provided under
the Cr.P.C.
28. In light of the aforesaid discussion and in view of the law
laid down by the Apex Court discussed supra, according to this
Court, the Petitioner herein is entitled for statutory bail under
Section 167(2) of the Cr.P.C.
i) The three Criminal Petitions are allowed.
ii) The orders dated 31.03.2022 and 13.04.2022 passed in
File No. ECIR/HYZO/14/2021 by the Metropolitan
Sessions Judge – cum – Special Court under PMLA
Act, 2002 at Hyderabad extending the remand of the
accused are hereby quashed.
iii) As the bail application dated 01.04.2022 was returned
on 08.04.2022, the petitioner is at liberty to file a fresh
bail application under Section 167(2) of Cr.P.C. before
the Metropolitan Sessions Judge – cum – Special Court
under PMLA Act, 2002 at Hyderabad. The said Court
is directed to consider the said application if it is
otherwise in order and pass orders in accordance with
law, within a period of one week from the date of filing
of such application.
iv) Consequently, miscellaneous petitions pending shall
stand closed.
Note; L.R.Copy to be marked.
|
In a recent case, the Telangana High Court ruled that accused under the Prevention of Money Laundering Act, 2002 is entitled to statutory bail under Section 167(2) of CrPC if the charge sheet is not submitted in terms of Section 173(2) of the Cr.P.C without completion of investigation. Justice K. Lakshman held that:
"At the cost of repetition, this Court holds that the complaint dated 19.03.2022 was not a final complaint based on which cognizance could have been taken. A complaint/report cannot be treated as final report unless the investigation is completed, In the present case, the investigation is admittedly not completed and the statutory period of sixty days expired on 21.03.2022. Therefore, in the absence of complete investigation and absence of filing a final complaint, the Petitioner is entitled for statutory bail under Section 167(2) of the Cr.P.C."
Brief Facts of the Case
The Petitioner is the Chairman and Managing Director of M/s Karvy Stock Broking Ltd. (KSBL) The Respondent authority had registered the offence of money laundering under the Prevention of Money Laundering Act, 2002 (PMLA) against KSBL. The allegations against KSBL and the Petitioner included diversion of large-scale clients' funds through shell companies which resulted in huge losses to the investors.
Various FIRs were registered against the Petitioner and he was arrested and produced before the Metropolitan Sessions Judge cum Special Court (Designated Court) on 20.01.2022 and on the same day the Petitioner was remanded to judicial custody. The Petitioner had been in jail since 20.01.2022. According to the Petitioner, the offences alleged against him are not punishable for a term not less than 10 years, death, life imprisonment. Therefore, he was entitled for statutory bail under Section 167(2) of CrPC as the investigation was not completed within 60 days.
According to the Petitioner, the period of 60 days expired on 21.03.2022. Therefore, he filed an application for default bail. But the said application was dismissed as the complaint/charge sheet was filed by the Respondent on 19.03.2022.
However, on 31.03.2022, another application under Section 167 was filed by the Respondent seeking extension of remand. The application was filed seeking further custody of the Petitioner to complete the investigation. The said application was allowed and the custody of the Petitioner was extended till 13.04.2022.
Subsequently, another application on 13.04.2022 was filed by Respondent seeking extension of remand. The remand was extended till 27.04.2022.
Contention of Petitioner
Mr. T. Niranjan Reddy, Semior counsel representing Mr. Avinash Desai on behalf of the Petitioner contended that a complaint in the nature of interim report was only filed on 19.03.2022 and no complaint/charge sheet was filed in terms of Section 173(2) of CrPC as the investigation was admittedly not completed. Therefore, in the absence of completion of investigation, the petitioner was entitled for statutory bail under Section 167(2) of CrPC.
Contention of Respondent
Mr. Anil Prasad Tiwari, Special Public Prosecutor for Directorate of Enforcement for the Respondent was that a complaint/charge sheet was already filed on 19.03.2022. Therefore, the statutory bail under Section 167(2) of CrPC cannot be claimed once the charge sheet was filed. The remand was extended under Section 309 of CrPC and the Respondent can seek custody of the petitioner to complete further investigation under Section 44(2) of the PMLA.
Issue
The issue was whether the Petitioner is entitled for statutory bail under Section 167(2) of the Cr.P.C.
Findings of the Court
Justice K. Lakshman relied on many decisions to observe that Section 167(2) of the Cr.P.C. obligates the investigative agencies to complete the investigation in a time bound manner.
In M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence (2021), it was made clear by the Supreme Court that a time limit for completing investigation was incorporated in order to ensure that the accused did not languish in jail for the investigative authority's failure to complete the investigation.
"It was in this backdrop that Section 167(2) was enacted within the present day CrPC, providing for time-limits on the period of remand of the accused, proportionate to the seriousness of the offence committed, failing which the accused acquires the indefeasible right to bail. As is evident from the recommendations of the Law Commission mentioned supra, the intent of the legislature was to balance the need for sufficient time-limits to complete the investigation with the need to protect the civil liberties of the accused. Section 167(2) provides for a clear mandate that the investigative agency must collect the required evidence within the prescribed time period, failing which the accused can no longer be detained. This ensures that the investigating officers are compelled to act swiftly and efficiently without misusing the prospect of further remand. This also ensures that the court takes cognizance of the case without any undue delay from the date of giving information of the offence, so that society at large does not lose faith and develop cynicism towards the criminal justice system."
The Court relied on the Supreme Court decision in Satya NarainMusadi v. State of Bihar (1980) which discussed Section 173(2) of the Cr.P.C. to hold that a charge sheet can be filed only after the completion of investigation.
Thus, it was clear that a charge sheet can be filed only after the completion of investigation. Investigation is said to be completed if sufficient material is collected by the Investigating Officer based on which cognizance can be taken under Section 167 of the Cr.P.C.
In this case, if complaint dated 19.03.2022 was filed after completion of investigation, the Designated Court would have taken cognizance of the offence. Not taking cognizance of the offence when complaint dated 19.03.2022 was already filed indicates that investigation is incomplete. Therefore, complaint dated 19.03.2022 cannot be treated as a complaint/charge sheet under Section 173(2) of the Cr.P.C.
Furthermore, in a Bombay High Court decision in Sharadchandra Vinayak Dongre v. State of Maharashtra, 1991 it was held that a complaint/charge sheet filed without completing the investigation cannot be used to circumvent the right of statutory bail under Section 167(2) of the Cr.P.C.
As has already been pointed out, a police report as defined in section 2(r) of the Code can only be filed "as soon as the investigation is completed". If it is not complete; no such report can be filed. When no report is forwarded as required by the Code, the Magistrate cannot take cognizance…The question thus emerges naturally is, whether the Magistrate can take cognizance on the admittedly "incomplete charge-sheet" forwarded by the police. The answer stubbornly and admittedly must be in the negative, because the investigation is yet incomplete and the "police report" yet remains to be filed. Thus, the filing of the incomplete charge-sheet cannot circumvent the provisions of sub-section (2) of section 173 of the Code and incomplete report or an incomplete charge-sheet with whatsoever expression it may be called does not meet the obligatory requirements of law.
Justice K. Lakshman reiterated that the complaint dated 19.03.2022 was not a final complaint. Therefore, the Petitioner was entitled to statutory bail under Section 167(2). The Petitioner cannot be remanded under Section 309 of CrPC as it comes into operation only after cognizance of the offence was taken. Thus, the Criminal petition was allowed and it was held that the Petitioner was entitled for statutory bail under Section 167(2) of CrPC.
Case Title: C. Parthasarthy v. Director of Enforcement
|
vil Appeal No. 1826 (N) of 1974.
From the Judgment and Order dated 6.4.1972 of the Madhya Pradesh High Court in F.A. No. 23 of 1966.
M.V. Goswami for the Appellants.
U.A. Rana and S.K. Agnihotri for the Respondents.
The Judgment of the Court was delivered by SAIKIA, J.
This plaintiffs ' appeal by special leave is from the appellate Judgment of the Madhya Pradesh High Court dismissing the appeal upholding the Judgment of the trial court dismissing the plaintiffs ' suit on the ground of limitation.
A registered firm Rai Saheb Nandkishore Rai Saheb Ju galki 599 shore (Appellants) was allotted contracts for manufacture and sale of liquor for the calendar year 1959 and for the subsequent period from 1.1.
1960 to 31.3.
1961 for Rs.2,56,200.00 and Rs.4,71,900.00, respectively, by the Government of Madhya Pradesh who also charged 7 1/2 per cent over the auction money as mahua and fuel cess.
As writ petitions challenging the Government 's right to charge this 7 1/2 per cent were pending in the Madhya Pradesh High Court, the Government announced that it would continue to charge it and the question of stopping it was under consid eration of the Government whose decision would be binding on the contractors.
The firm (appellants) thus paid for the above contracts a total extra sum of Rs.54,606.00.
On 17.10.1961 the Under Secretary to Government, M.P., Forest Department, Bhopal wrote the following letter No. 10 130 X/61 (Exhibit D 23) to the Chief Conservator of Forests, Madhya Pradesh, Rewa: "Subject: Levy of cess on liquor contractors.
Under former M.P. Government (Forest Depart ment) memo No. 4595 CR 73 XI dated 25th July, 1953, a royalty at 7 1/2 per cent of the license fee for liquor shops was imposed on liquor contractors to cover the value of mahua & fuel extracted from the reserved or protect ed forests by the contractors for their still.
The M.P. High Court has since decided that the levy of the aforesaid cess is illegal and the cess cannot be recovered from the liquor contractors.
In pursuance of this decision, Government desires that all process es whenever issued or proceedings instituted against liquor contractors for recovery of the mahua or fuel cess should forthwith be with drawn and no revenue recovery certificates should be issued in respect of this cess.
Simultaneously no free supply of mahua or fuel should be permitted by virtue of the imposition mentioned above.
Immediate compliance is requested.
No . .
X/61 Dt.
Bhopal the . . 661 Copy forwarded for immediate compliance to: 600 1.
Conservator of Forests, Bilaspur. 2.
All Divisional Forest Officers, Bilaspur Circle.
Copy to C.F. Raipur Circle for similar auction in this cess levied in any division of his Circle.
" On 24.4.1959 the Madhya Pradesh High Court 's Judgment in Surajdin vs State of M.P., declaring the collection of 7 1/2 per cent illegal was reported in 1960 MPLJ 39.
Even after this decision Government continued to charge 7 1/2 per cent extra money.
Again on 31.8.
1961 the High Court of Madhya Pradesh in N.K. Doongaji vs Collector, Surguja, decided that the charging of 7 1/2 per cent by the Government above the auction money was illegal.
This Judgment was reported in 1962 MPLI 130.
It is the appellants ' case that they came to know about this decision only in or about September 1962.
On 17.10.
1964 they served a notice on Government of Madhya Pradesh under section 80 of the Code of Civil Procedure request ing the refund of Rs.54,606.00, failing which, a suit for recovery would be filed; and later they instituted Civil Suit No. of 1964 in the court of Additional District Judge, Jabalpur on 24.12.1964.
The Government resisted the suit on, inter alia, ground of limitation.
The trial court taking the view that Articles 62 and 96 of the First Schedule to the Limitation Act, 1908 were applicable and the period of limitation began to run from the dates the payments were made to the Government, held the suit to be barred by limi tation and dismissed it.
In appeal, the High Court took the view that Article 113 read with section 17, and not Article 24, of the Schedule to the , was applicable; and held that the limitation began to run from 17.10.
1961 on which date the Government decided not to charge extra 7 1/2 per cent on the auction money, and as such, the suit was barred on 17.12.
1964 taking into consideration the period of two months prescribed by section 80 of the Code of Civil Procedure.
Consequently, the appeal was dismissed.
The appellants ' petition for leave to appeal to this Court was also rejected observing, "it was unfortunate that the peti tioners filed their suit on 24.12.
1964 and as such the suit was barred by time by seven days." Mr. M.V. Goswami, learned counsel for the appellants, submits, inter alia, that the High Court erred in holding that the limitation started running from 17.16.1961 being the date of the letter, Exhibit D 23, which was not communi cated to the appellants or any other contractor and there fore the appellants had no opportunity to know 601 about it on that very date with reasonable diligence under section 17 and the High Court ought to allow atleast a week for knowledge of it by the appellants in which case the suit would be within time.
Counsel further submits that the High Court while rightly discussing that section 17 of the was applicable, erred in not applying that section to the facts of the instant case, wherefore, the impugned Judgment is liable to be set aside.
Mr. Ujjwal A. Rana, the learned counsel for the respond ent, submits, inter alia, that 17.10.2961 having been the date on which the Government finally decided not to recover extra 7 1/2 per cent above the auction .money, the High Court rightly held that the limitation started from that date and the suit was clearly barred under Article 24 or 113 of the Schedule to the ; and that though the records did not show that the Government decision was communicated to the appellants, there was no reason why they, with reasonable diligence, could not have known about it on the same date The only question to be decided, therefore, is whether the decision of the High Court is correct.
To decide that question it was necessary to know what was the suit for.
There is no dispute that 7 1/2 per cent above the auction money was charged by the Government of Madhya Pradesh as mahua and fuel cess, and the High Court subsequently held that it had no power to do so.
In view of those writ peti tions challenging that power, Government asked the contrac tors to continue to pay the same pending Government 's deci sion on the question; and the appellants accordingly paid.
Ultimately on 17.10.1961 Government decided not to recover the extra amount any more but did not yet decide the fate of the amounts already realised.
There is no denial that the liquor contracts were performed by the appellants.
There is no escape from the conclusion that the extra 7 1/2 per cent was charged by the Government believing that it had power, but the High Court in two cases held that the power was not there.
The money realised was under a mistake and without authority of law.
The appellants also while paying suffered from the same mistake.
There is therefore no doubt that the suit was for refund of money paid under mistake of law.
The question is what was the law applicable to the case. 'Nul ne doit senrichir aux depens des autres ' No one ought to enrich himself at the expense of others.
This doctrine at one stage of English common law was remedied by 'indebitatus assumpsit ' which action lay for money "had and received to the use of the plaintiff".
It lay to recover 602 money paid under a mistake, or extorted from the plaintiff by duress of his goods, or paid to the defendant on a con sideration which totally tailed.
On abolition of 'indebit atus assumpsit ', courts used to imply a promise to pay which, however, in course of time was held to be purely fictitious.
Lord Manslied in Moses vs Macferlan, ; at 10 12 explained the juridical basis of the action for money "had and received" thus: "This kind of equitable action, to recover back money, which ought not in justice to be kept, is very beneficial, and therefore much encouraged.
It lies only for money which, 'ex aequo et bono ', the defendant ought to refund; it does not lie for money paid by the plain tiff, which is claimed of him as payable in point of honour and honesty, although it could not have been recovered from him by any course of law; as in payment of a debt barred by the Statute of Limitations, or contracted during his infancy, or to the extent of principal and legal interest upon a usurious contract, or, for money fairly lost at play; because in all these cases, the defendant may retain it with a safe conscience, though by positive law he was barred from recovering.
But it lies for money paid by mistake; or upon a consideration which happens to fail; or for money got through imposition, (express or implied); or extortion; or oppression; or an undue advan tage taken of the plaintiff 's situation, contrary to laws made for the protection of persons under those circumstances.
In one word, the gist of this kind of action is, that the defendant, upon the circumstances of the case, is obliged by the ties of natural jus tice and equity to refund the money." In that case Moses received from Jacob four promissory notes of cash each.
He endorsed these to Macferlan who, by a written agreement, contracted that he would not hold Moses liable on the endorsement.
Subsequently, however, Macferlan sued Moses on the notes in a Court of Conscience.
The Court refused to recognise the agreement, and Moses was forced to pay.
Moses then brought an action against Macferlan in the king 's Bench for money "had and received" to his use.
Lord Manslied allowed him to recover observing as above.
Courts in England have since been trying to formulate a juridicial basis of this obligation.
Idealistic formulations as 'aequum et bonum ' and 'natural justice ' were considered to be inadequate and the 603 more legalistic basis of unjust enrichment is formulated.
The doctrine of 'unjust enrichment ' is that in certain situation it would be 'unjust ' to allow the defendant to retain a benefit at the plaintiff 's expense.
The relatively modern principle of Restitution is of the nature of quasi contract.
But the English law has not yet recognised any generalised right to restitution in every case of unjust enrichment.
As Lord Diplock has said, "there is no general doctrine of "unjust enrichment" recognised in English law.
What it does is to provide specific remedies in particular cases of what might be classed as unjust enrichment in a legal system i.e. based upon the civil law.
" In Sinclair vs Brougham, Lord Haldane said that law could 'de jure ' impute promises to repay whether for money "had and received" otherwise, which may, if made defacto, it would inexorably avoid.
The principle of unjust enrichment requires: first, that the defendant has been 'enriched ' by the receipt of a "benefit"; secondly, that this enrichment is "at the expense of the plaintiff"; and thirdly, that the retention of the enrichment be unjust.
This justifies restitution.
Enrichment may take the form of direct advantage to the recipient wealth such as by the receipt of money or indirect one for instance where inevitable expense has been saved.
Another analysis of the obligation is of quasi contract.
It was said; "if the defendant be under an obligation from the ties of natural justice, to refund; the law implies a debt, and give this action rounded in the equity of the plaintiff 's case, as it were, upon a contract (quasi ex contracts) as the Roman law expresses it." As Lord Wright in Fibrosa Spolka vs Fairbairn Lawson, [1943] AC 32 1942 pointed out, "the obligation is as efficacious as if it were upon a contract.
Such remedies are quasi contract or restitution and theory of unjust enrichment has not been closed in English law.
" Section 72 of the Indian Contract Act deals with liabil ity of person to whom money is paid or thing delivered, by mistake or under coercion.
It says: "A person to whom money has been paid, or anything delivered, by mistake or under coer cion, must repay or return it." Illustration (b) to the section is: "A Railway Company refuses to deliver up certain goods to the consignee, except upon the payment of an illegal 604 charge for carriage.
The consignee pays the sum charged in order to obtain the goods.
He is entitled to recover so much of the charge as was illegally excessive.
" Our law having been codified, we have to apply the law.
It is true, as Pollock wrote in 1905 in the preface to the first Edition of Pollock and Mulla 's Indian Contract and Specific Relief Acts: "The Indian Contract Act is in effect . . a code of English law.
Like all codes based on an existing authoritative doctrine, it assumes a certain knowledge of the principles and habits of thought which are embodied in that doctrine.
" It is, therefore, helpful to know "those fundamental notions in the common law which are concisely declared, with or, without modification by the text.
" There is no doubt that the instant suit is for refund of money paid by mistake and refusal to refund may result in unjust enrichment depending on the facts and circumstances of the case.
It may be said that this court has referred to unjust enrichment in cases under section 72 of the Contract Act.
See ; ; and ; The next question is whether, and if so, which provision of the will apply to such a suit.
On this question we find two lines of decisions of this Court, one in respect of civil sulks and the other in respect of peti tions under Article 226 of the Constitution of India.
Though there is no constitutionally provided period of limitation for petitions under Article 226, the limitation prescribed for such suits has been accepted as the guideline, though little more latitude is available in the former.
A tax paid under mistake of law is refundable under section 72 of the .
In Sales Tax Officer vs Kanhaiya Lal, where the respondent, a regis tered firm, paid sales tax in respect of the forward trans actions in pursuance of the assessment orders passed by the Sales Tax Officer for the year 1949 51; in 1952 the Allaha bad High Court held in M/s Budh Prakash Jai Prakash vs Sales Tax Officer, Kanpur, that the levy of sales tax on forward transactions was ultra vires.
The respondent asked for a refund of the mounts paid, filing a writ peti tion under Article 226 of 605 the Constitution.
It was contended for the Sales Tax Author ities that the respondent was not entitled to a refund because (1) the amounts in dispute were paid by the respond ent under a mistake of law and were, therefore, irrecovera ble, (2) the payments were in discharge of the liability under the Sales Tax Act and were voluntary payments without protest, and (3) inasmuch as the monies which had been received by the Government had not been retained but had been spent away by it and the respondent was disentitled to recover the said amounts.
This Court held that the term "mistake" in section 72 of the comprised within its scope a mistake of law as well as a mistake of fact and that, under that section a party is entitled to recover money paid by mistake or under coercion, and if it is established that the payment, even though it be of a tax, has been made by the party labouring under a mistake of law, the party receiving the money is bound to repay or return it though it might have been paid voluntarily, subject, howev er, to questions of estoppel, waiver, limitation or the like.
On the question of limitation, it was held that section 17(1)(c) of the would be applicable and that where a suit will be to recover "monies paid under a mistake of law, a writ petition within the period of limita tion prescribed, i.e., within 3 years ' of the knowledge of the mistake, would also lie.
" It was also accepted that the period of limitation does not begin to run until the plain tiff has discovered the mistake or could, with reasonable diligence, have discovered it.
The money may not be recoverable if in paying and re ceiving it the parties were in pan delicto.
In Kiriri Cotton Co. Ltd. vs Ranchhoddas Keshavji Dewani, , where the appellant company, in consideration of granting to the respondent a sub lease asked for and received from him a premium of Sh.
10,000 and the latter.claimed refund thereof, the Privy Council held that the duty of observing the law was firmly placed by the Ordinance on the shoulders of the landlord for the protection of the tenant, and the appellant company and the respondent were not therefore in pari delic to in receiving and paying respectively the illegal premium, which, therefore, in accordance with established common law principles, the respondent was entitled to recover from the landlord and that the omission of a statutory remedy did not in cases of this kind exclude the remedy by money had and received.
In the instant case also the parties could not be said to be in pari delicto in paying and receiving the extra 7 1/2% per cent.
Had the appellants not paid this amount, they would not have been given the contracts.
In D. Cawasji &.
Co. vs The State of Mysore & Anr.
, ; , the appellants paid certain amount to the Government as 606 excise duty and education cess for the years 195 1 52 to 1965 66 in one case and from 1951 52 to 1961 62 in the other.
The High Court struck down the provisions of the relevant Acts as unconstitutional.
In Writ Petitions before the High Court claiming refund, the appellants contended that the payments in question were made by them under mis take of law; that the mistake was discovered when the High Court struck down the provisions as unconstitutional and the petitions were, therefore, in time but the High Court dis missed them on the ground of inordinate delay.
Dismissing the appeals, this Court held that where a suit would lie to recover monies paid under a mistake of law, a writ petition for refund of tax within the period of limitation would lie.
For filing a writ petition to recover the money paid under a mistake of law the starting point of limitation is from the date on which the judgment declaring as void the particular law under which the tax was paid was rendered.
It was held in D. Cawasji (supra) that although section 72 of the Contract Act has been held to cover cases of payment of money under a mistake of law, as the State stands in a peculiar position in respect of taxes paid to it, there are perhaps practical reasons for the law according different treatment both in the matter of the heads under which they could be recovered and the period of limitation for recovery.
P.N. Bhagwati, J., as he then was, in Madras Port Trust vs Hymanshu Inter national, , deprecated any resort to plea of limitation by public authority to defeat just claim of citizens observing that though permissible under law, such technical plea should only be taken when claim is not well founded.
Section 17(1)(c) of the , provides that in the case of a suit for relief of the ground of mistake, the period of limitation does not begin to run until the plaintiff had discovered the mistake or could with reasonable diligence, have discovered it.
In a case where payment has been made under a mistake of law as contrasted with a mistake of fact, generally the mistake become known to the party only when a court makes a declaration as to the invalidity of the law.
Though a party could, with reasonable diligence, discover a mistake of fact even before a court makes a pronouncement, it is seldom that a person can, even with reasonable diligence, discover a mistake of law before a judgment adjudging the validity of the law.
E.S. Venkataramiah, J., as his Lordship then was, in Shri Vallabh Glass Works Ltd. vs Union of India, ; , where the appellants claimed refund of excess duty paid under Central Excise and Salt Act, 1944, laid down that the excess amount paid by the appellants would have become refundable by virtue of section 72 of the 607 if the appellants had filed a suit within the period of limitation; and that section 17(1)(c) and Article 113 of the would be applicable.
In Commissioner of Sales Tax, U.P.v.
M/s Auriaya Chamber of Commerce Allahabad; , , the Supreme Court in its decision dated May 3, 1954 in Sales Tax Officer vs Budh Prakash Jai Prakash, [1954] 5 STC 193 having held tax on forward contracts to be illegal and ultra vires the U.P. Sales Tax Act, and that the decision was applicable to the assessee 's case, the assessee filed several revisions for quashing the assessment order for the year 1949 50 and for subsequent years which were all dismissed on ground of limitation.
In appeal to this Court Sabyasachi Mukharji, J. while dismissing the appeal held that money paid under a mistake of law comes within mistake in section 72 of the Contract Act; there is no question of any estoppel when the mistake of law is common to both the assessee and taxing authority.
His Lordship observed that section 5 of the Limitation Act, 1908 and Article 96 of its First Schedule which prescribed a period of 3 years were applicable to suits for refund of illegally collected tax.
In Salonah Tea Co. Ltd. & Ors.
vs Superintendent of Taxes, Nowgong and Ors.
, ; , the Assam Taxa tion (on Goods carried by Road or Inland Waterways) Act, 1954 was declared ultra vies the Constitution by the Supreme Court in Atiabari Tea Co. Ltd. vs State of Assam, ; A subsequent Act was also declared ultra vires by High Court on August 1, 1963 against which the State of Assam and other respondents preferred appeals to Supreme Court.
Meanwhile the Supreme Court in a writ petition Khyer bari Tea Co. Ltd. vs State of Assam, ; , declared on December 13, 1963 the Act to be intra vires.
Consequently the above appeals were allowed.
Notices were, therefore, issued requiring the appellant under section 7(2) of the Act to submit returns.
Returns were duly filed and assessment orders passed thereon.
On July 10, 1973, the Gauhati High Court in its Judgment in Loong Soong Tea Es tate 's case, Civil Rule No. 1005 of 1969, decided on July 10, 1973, declared the assessment to be without jurisdic tion.
In November, 1973 the appellant filed writ petition in the High Court contending that in view of the decision in Loong Soong Tea Estate 's case he came to know about the mistake in paying tax as per assessment order and also that he became entitled to refund of the amount paid.
The High Court set aside the order and the notice of demand for tax under the Act but declined to order refund of the taxes paid by the appellant on the ground of delay and laches as in view of the High Court it was possible for the appellant to know about 608 the illegality of the tax sought to be imposed as early as in 1963, when the Act in question was declared ultra vires.
Allowing the assessee 's appeal, Mukharji, J. speaking for this Court held: "In this case indisputably it appears that tax was collected without the authority of law.
Indeed the appellant had to pay the tax in view of the notices which were without juris diction.
It appears that the assessment was made under section 9(3) of the Act.
Therefore, it was without jurisdiction.
In the premises it is manifest that the respondents had no authority to retain the money collected with out the authority of law and as such the money was liable to refund.
" The question there was whether in the application under article 226 of the Constitution, the Court should have refused refund on ground of laches and delay, the case of the appel lant having been that it was after the Judgment in the case of Loong Soong tea Estate, the cause of action arose.
That judgment was passed in July, 1973.
The High Court was, therefore, held to have been in error in refusing to order refund on the ground that it was possible for the appellant to know about the legality of the tax sought to be imposed as early as 1973 when the Act in question was declared ultra vires.
The Court observed: "Normally speaking in a society governed by rule of law taxes should be paid by citizens as soon as they are due in accordance with law.
Equally, as a corollary of the said statement of law it follows that taxes col lected without the authority of law as in this case from a citizen should be refunded because no State has the right to receive or to retain taxes or monies realised from citizens without the authority of law.
" On the question of limitation referring to Suganmal vs State of M.P., AIR 1965 SC 1740, and Tilokchand Motichand vs H.B. Munshi, , his Lordship observed that the period of limitation prescribed for recovery of money paid by mistake started from the date when the mistake was known.
In that case knowledge was attributable from the date of the Judgment in Loong Soong Tea Estate 's case on July 10, 1973.
There had been statement that the appellant came to know of that matter in October, 1973 and there was no denial of the averment made.
On that ground, the High Court was held to be in 609 error.
It was accordingly held that the writ petition filed by the appellants were within the period of limitation prescribed under article 113 of the Schedule read with section 23 of the .
It is thus a settled law that in suit for refund of money paid by mistake of law, section 72 of the Contract Act is applicable and the period of limitation is three years as prescribed by Article 113 of the Schedule to the Indian and the provisions of section 17(1)(c) of that Act will be applicable so that the period will begin to run from the date of knowledge of the particular law, where under the money was paid, being declared void; and this court be the date of judgment of a competent court declaring that law void.
In the instant case, though the Madhya Pradesh High Court in Surajdin vs State of M.P., declared the collection on 7 1/2% per cent illegal and that decision was reported in , the Government was still charging it saying that the matter was under consideration of the Government.
The final decision of the Government as stated in the letter dated 17.10.
1961 was purely an internal communication of the Government copy whereof was never communicated to the appellants or other liquor contractors.
There could, there fore, be no question of the limitation starting from that date.
Even with reasonable diligence, as envisaged in section 17(1)(c) of the , the appellants would have taken at least week to know about it.
Mr. Rana has fairly stated that there was nothing on record to show that the appellants knew about this letter on 17.10.
1961 itself or within a reasonable time thereafter.
We are inclined to allow at least a week to the appellants under the above provision.
Again Mr. Rana has not been in a position to show that the statement of the appellants that they knew about the mistake only after the judgment in Doongaji 's case reported in , in or about September, 1962, whereafter they issued the notice under section 80 C.P.C. was untrue.
This statement has not been shown to be false.
In either of the above cases, namely, of knowledge one week after the letter dated 17.10.
1961 or in or about September, 1962, the suit would be within the period of limitation under Article 113 of the Schedule to the .
In the result, we set aside the Judgment of the High Court, allow the appeal and remand the suit.
The records will be sent down forthwith to the trial court to decide the suit on merit in accordance with law, expeditiously.
The appellants shall be entitled to the costs of this appeal.
R.N .J.
Appeal allowed.
|
The appellant firm was allotted contracts for manufac ture and sale of liquor for the year 1959 and for the subse quent periods from 1.1.
1960 to 31.3.1961 for Rs.2,56,200 and Rs.4,71,900 respectively by the M.P. Govt.
who also charged 7 1/2% over the auction money as mahua and fuel cess.
As writ petitions challenging the government 's right to charge this 7 1/2% were pending in the M.P. High Court, the Govt.
announced that it would continue to charge it and the question of stopping it was under consideration of Govt.
whose decision would be binding on the contractors.
The appellant firm paid for the above contracts a total extra sum of Rs.54,606.00.
On 24.4.1959 the M.P. High Court in Surajdin vs State of M.P., declared the collection of 7 1/2% as illegal.
Even after this decision the Govt.
continue to charge 7 1/2% extra money.
Again on 31.8.1961, the High Court of Madhya Pradesh in N.K. Doongaji vs Collector, Surguja, decided that charg ing of 7 1/2% by the Govt.
above the auction money was illegal.
Appellants came to know of this decision only in or about September, 1962.
On 17.10.1964 the appellants gave a notice under section 80 C.P.C. to the Govt.
of Madhya Pradesh requesting for the refund of Rs.54,606.00.
failing which a suit for recovery would be filed and later they instituted a civil suit in the court of additional District Judge, Jabalpur on 24.12.1964.
The Govt.
resisted the suit inter alia on the ground of limitation.
The Trial Court held that the suit was barred by 597 limitation and dismissed it.
The High Court also dismissed the appeal.
The appellants then came up in appeal by special leave.
While allowing the appeal and remanding the suit to the Trial Court for decision on merits.
This Court, HELD: 'Nul ne doit senrichir aux depens des autres ' No one ought to enrich himself at the expense of others.
This doctrine at one stage of English common Law was remedied by 'indebitatus assumpsit ' which action lay for money ' had and received to the use of the plaintiff '.
It lay to recover money paid under a mistake or extorted from the plaintiff by duress of his goods, or paid to the defendant on a consider ation which totally failed.
On abolition of 'indebitatus assumpsit ', courts used to imply a promise to pay which, however, in course of time was held to be purely fictitious.
[601G 602A] Courts is England have since been trying to formulate a juridical basis of this obligation.
Idealistic formulations as 'aequum et bonum ' and 'natural justice ' were considered to be inadequate and the more legalistic basis of unjust enrichment is formulated.
The doctrine of 'unjust enrich ment ' is that in certain situations it would be 'unjust ' to allow the defendant to retain a benefit at the plaintiff 's expense.
The relatively modern principle of restitution is of the nature of quasi contract.
But the English law has not yet recognised any generalised right to restriction in every case of unjust enrichment.
[602H 603B] The principle of unjust enrichment requires; first, that the defendant has been 'enriched ' by the receipt of a "benefit"; secondly.
that this enrichment is "at the expense of the plaintiff" and thirdly, that the retention of the enrichment be unjust.
This justified restitution.
Enrichment may take the form of direct advantage to the recipient wealth such as by the receipt of money or indirect one for instance where inevitable expense has been saved.
[603C 603D] There is no doubt that the suit in the instant case, is for refund of money paid by mistake and refusal to refund may result in unjust enrichment depending on the facts and circumstances of the case.
[604D] Though there is no constitutionally provided period of limitation for petitions under Article 226, the limitation prescribed for such suits has been accepted as the guide line, though little more latitude is available in the for mer.
[604F] For filing a writ petition to recover the money paid under a mis 598 take of law the starting point of limitation is three years is prescribed by Article 113 of the Schedule to the Indian and the provisions of section 17(1)(c) of the Act will be applicable so that the period will begin to run from the date of knowledge of the particular law, where under the money was paid, being declared void and this could be the date of the judgment of a competent court declaring that law void.
[609B] Moses vs Macferlan, ; at 1012; Sin clair vs Brougham, ; Fibrosa Spolka vs Fair bairn Lawson; , = ; ; Sales Tax Officer vs Kanhaiya Lal, ; M/s Budh Prakash Jai Prakash vs Sales Tax Officer, Kanpur, ; Kiriri Cotton Co. Ltd. vs Ranchhoddas Keshavji Dewani, ; D. Cawasji & Co. vs The State of Mysore & Anr., ; ; Madras Port 7rust vs Hymanshu Inter national, ; Shri Vallabh Glass Works Lid.
vs Union of India; , ; Commissioner of Sales Tax, U.P.v.
M/s. Auriaya Chamber of Commerce Allahabad; , ; Sales Tax Officer vs Budh Prakash Jai Prakash, [1954] 5 STC 193; Salonah Tea Co. Ltd. & Ors.
vs Superin tendent of Taxes, Nowgong & Ors.
, ; ; Atiabari Tea Co. Ltd. vs State of Assam, ; ; Khyerbari Tea Co. Ltd. vs State of Assam, ; ; Loong Soong Tea Estate 's, case decided on July 10, 1973; Suganmal vs State of M.P., AIR 1965 SC 1740; Tilokchand Motichand vs H.B. Munshi, , referred to.
|
Mr. Sandeep Dere for the Petitioner in WP/224/2023.
Mr. L.S. Deshmukh i/b. Ms. Pooja Mankoji for the Petitioner in
Mr. Pranav Avhad a/w Ms. Darshana Naval for the Respondent
Nos.4 to 7 in WP/224/2023.
Ms. Purna S. Pradhan i/b. Mr. Dinesh B. Khaire for the
Applicants in OA No.830 of 2022 (party not made in
Mr. M.M. Pabale, AGP for the Respondent – State In
Mr. B.V. Samant, AGP for the Respondent – State in
1. Rule. Rule made returnable forthwith. With the consent
of parties taken up for final hearing.
2. By these petitions, petitioners challenge the Order dated
20th December, 2022 passed by the Maharashtra
Administrative Tribunal, Mumbai (Tribunal) in Original
Application Nos.775 of 2022, 776 of 2022, 777 of 2022, 778 of
2022, 779 of 2022, 793 of 2022, 796 of 2022 & 830 of 2022 by
which the Tribunal has proceeded to recall its earlier
Judgment and Order dated 11th April, 2022 passed in Original
Application Nos. 144 of 2022, 145 of 2022, 146 of 2022, 167 of
2022, 203 of 2022, 300 of 2022, 301 of 2022, 321 of 2022.
The petitioners also challenge common Order dated 22 nd
December, 2022 passed in both sets of Original Applications
wp 226.2023 (J) (f).doc
(OA No.775/2022 & other connected OAs and OA No.144 of
2022 & other connected OAs) to a larger Bench.
3. Brief facts of the case are that the recruitment process
for the post of Police Constable (Driver) was initiated by the
Additional Director General of Police, (M.S), Mumbai vide
Advertisement dated 30th November, 2019. The recruitment
process was apparently to be conducted in respect of the
separate Units / Districts. The Applicants in Original
Application No.144 of 2022 & other connected OAs filled up
forms in respect of multiple Units / Districts and also appeared
for multiple examinations. Though their names were included
in the merit list, the same were subsequently deleted from the
revised merit list for the reason of their participation in
selection process in more than one Unit/District. Challenging
deletion of their names from the revised merit list, Original
Application Nos.144 of 2022, 145 of 2022, 146 of 2022, 167 of
2022, 203 of 2022, 300 of 2022, 301 of 2022, 321 of 2022
were instituted by such candidates before the Tribunal. In
those Original Applications, though relief was sought for
inclusion of their names in the merit list and consequential
appointment to the post of Police Constable (Driver), the
wp 226.2023 (J) (f).doc
candidates that were likely to be affected by grant of such
reliefs were not impleaded as parties to those Original
4. The Tribunal proceeded to allow Original Application
No.144 of 2022 & ors, by common judgment and order dated
11th April, 2022 directing consideration of candidature of
applicants therein in further process of selection by setting
aside deletion of their names from the merit list.
5. The State Government proceeded to implement the
Tribunal’s judgment and order dated 11 th April, 2022 and it
appears that, names of some of the candidates got deleted from
the merit list and orders terminating them from service came
to be issued. This led to filing of Original Application Nos. 775
of 2022, 776 of 2022, 777 of 2022, 778 of 2022, 779 of 2022,
793 of 2022, 796 of 2022 & 830 of 2022. During the course of
hearing of those OAs, the Tribunal noticed that implementation
of its Judgment and order dated 11th April, 2022 passed in OA
No.144 of 2022 & ors, was the reason for termination of
services of the applicants in OA No.775 of 2022 & ors. The
Tribunal therefore proceeded to pass Order dated 20 th
wp 226.2023 (J) (f).doc
December, 2022 recalling its Judgment and order dated 11 th
April, 2022 passed in OA No.144 of 2022 & ors and restored all
those Original Applications on its file.
6. The Tribunal thereafter took up both sets of Original
Applications (OA Nos.144 of 2022 & ors and OA Nos. 775 of
2022 & ors) for hearing on 22 nd December, 2022 and
proceeded to refer all Original Applications for decision to a
larger Bench of three learned Members.
7. The petitioners in the present petitions are aggrieved by
Orders dated 20th December, 2022 and 22nd December, 2022
passed by the Tribunal.
8. Appearing for the petitioners, Mr. Dere and Mr.
Deshmukh, the learned counsels would submit that while
hearing OA No.775 of 2022 & ors, the Tribunal had no occasion
to decide the issue of validity of its Judgment and order dated
11th April, 2022 passed in OA No.144 of 2022 & ors. It is
further submitted that while passing order of recall dated 20th
December, 2022, the applicants in OA No.144 of 2022 & ors,
were not heard and the Order passed in their favour has been
wp 226.2023 (J) (f).doc
recalled behind their back. It is further submitted that no case
is made out by the Applicants in OA No.775 of 2022 & ors,
though they came to be affected only on account of passing of
the Judgment & order dated 11th April,2022 in OA No.144 of
2022 & ors. They would also contend that if the Tribunal was
of the view that reference to larger Bench was warranted, it
ought to have first distinguished its earlier decision dated 11 th
April 2022 by recording reasons and then made an order of
reference. That no specific question is formulated by the
Tribunal while making order of reference. Lastly, it is
submitted that the Applicants in OA No.144 of 2022 & ors,
have already been appointed in pursuance of the Judgment
and Order dated 11th April, 2022 and effect of recalling of the
said order would entail termination of their services.
9. Per contra, Mr. Pranav Avhad and Ms. Purva Pradhan,
the learned counsels appearing for Applicants in OA Nos.775 of
2022 & ors would oppose the Petitions and support the Order
passed by the Tribunal. They would submit that the Judgment
and Order dated 11th April, 2022 was erroneously passed by
the Tribunal in OA No.144 of 2022 & ors, without hearing the
candidates who were already selected and appointed and that
wp 226.2023 (J) (f).doc
the Tribunal has merely corrected the error by recalling its
order dated 11th April 2022 for the purpose of affording an
opportunity of hearing the affected candidates. It is further
submitted that reference of the issue to the Larger Bench
would enable the Tribunal to effectively decide the lis between
the competing parties.
10. We have also heard, learned AGP appearing on behalf of
11. There are competing claims of candidates participating
in selection in multiple Units/Districts and those participating
only in one Unit/District. When OA No.144 of 2022 & ors, were
instituted by the candidates appearing for examination in
multiple Units/Districts, the merit lists were already declared.
Names of selected candidates were already known. Therefore,
while challenging such merit lists and seeking inclusion of
their names therein, it was incumbent on such candidates to
include atleast some of the selected candidates in
representative capacity for affording them an opportunity of
defending those OAs. However, without impleading any of the
selected candidates, OA No.144 of 2022 & ors came to be
wp 226.2023 (J) (f).doc
instituted. The Tribunal proceeded to allow those OAs by its
Judgment and order dated 11th April, 2022 setting aside
deletion of names of applicants from the merit list and
directing consideration of their candidature in further
selection process.
12. We feel that the course of action adopted by the Tribunal
in entertaining OA Nos, 144 of 2022 & Ors without
impleadment of affected selected candidates was against the
well settled principles enunciated in various judgments of the
Apex Court. A reference in this regard can be made to the
Judgment in Ranjan Kumar v. State of Bihar 1, in which the
Apex Court has held as under:
7. In Rashmi Mishra v. M.P. Public Service Commission [Rashmi
Mishra v. M.P. Public Service Commission, (2006) 12 SCC 724 :
(2007) 2 SCC (L&S) 345] , after referring to Prabodh Verma [Pra-
bodh Verma v. State of U.P., (1984) 4 SCC 251 : 1984 SCC (L&S)
704] and Indu Shekhar Singh [Indu Shekhar Singh v. State of U.P.,
(2006) 8 SCC 129 : 2006 SCC (L&S) 1916] , the Court took note of
the fact that when no steps had been taken in terms of Order 1 Rule
8 of the Code of Civil Procedure or the principles analogous thereto
all the seventeen selected candidates were necessary parties in the
writ petition. It was further observed that the number of selected
candidates was not many and there was no difficulty for the appel-
lant to implead them as parties in the proceeding. Ultimately, the
Court held that when all the selected candidates were not im-
pleaded as parties to the writ petition, no relief could be granted to
the appellant therein.
8. In Tridip Kumar Dingal v. State of W.B. [Tridip Kumar Din-
gal v. State of W.B., (2009) 1 SCC 768 : (2009) 2 SCC (L&S) 119] ,
this Court approved the view expressed by the tribunal which had
opined that for absence of selected and appointed candidates and
without affording an opportunity of hearing to them, the selection
could not be set aside.
13. In view of the aforesaid enunciation of law, we are disposed to
think that in such a case when all the appointees were not im-
pleaded, the writ petition was defective and hence, no relief could
have been granted to the writ petitioners.
(emphasis supplied)
13. It may well be contended that it is not possible to implead
each and every selected candidate, however atleast some of
them in representative capacity ought to have been impleaded.
This aspect has been expounded by the Apex Court in its re-
cent judgment in Ajay Kumar Shukla and Others Vs. Arvind
Rai and Others2 in which it is held as under:
46. In the recent case of Mukul Kumar Tyagi and Ors. vs. The State
of Uttar Pradesh and Ors.,14 Ashok Bhushan, J., laid emphasis that
when there is a long list of candidates against whom the case is pro-
ceeded, then it becomes unnecessary and irrelevant to implead
each and every candidate. If some of the candidates are impleaded
then they will be said to be representing the interest of rest of the
candidates as well. The relevant portion of paragraph 75 from the
judgment is reproduced below:
“75...... We may further notice that Division Bench also no-
ticed the above argument of non-impleadment of all the se-
lected candidates in the writ petition but Division Bench has
not based its judgment on the above argument. When the in-
clusion in the select list of large number of candidates is on
the basis of an arbitrary or illegal process, the aggrieved par-
ties can complain and in such cases necessity of implead-
ment of each and every person cannot be insisted. Further-
more, when select list contained names of 2211 candidates, it
becomes unnecessary to implead every candidate in view of
the nature of the challenge, which was levelled in the writ pe-
tition. Moreover, few selected candidates were also im-
pleaded in the writ petitions in representative capacity.”
47. The present case is a case of preparation of seniority list and
that too in a situation where the appellants (original writ petition-
ers) did not even know the marks obtained by them or their profi-
ciency in the examination conducted by the Commission. The chal-
lenge was on the ground that the Rules on the preparation of senior-
ity list had not been followed. There were 18 private respondents
arrayed to the writ petition. The original petitioners could not have
known who all would be affected. They had thus broadly impleaded
18 of such Junior Engineers who could be adversely affected. In
matters relating to service jurisprudence, time and again it has
been held that it is not essential to implead each and every one who
could be affected but if a section of such affected employees is im-
pleaded then the interest of all is represented and protected. In
view of the above, it is well settled that impleadment of a few of the
affected employees would be sufficient compliance of the principle of
joinder of parties and they could defend the interest of all affected
persons in their representative capacity. Non-joining of all the par-
ties cannot be held to be fatal.”
14. When the Tribunal proceeded to pass the Judgment and
order dated 11th April, 2022, the same resulted in deletion of
names of some of the candidates from the merit list and many
of them were required to be terminated from service. This led
to filing of OA No.775 of 2022 & ors. by such candidates. This
situation could have been avoided, if such candidates were
impleaded to OA No.144 of 2022 & ors.
15. The Tribunal was thus faced with a situation where it had
already allowed OA Nos.144 of 2022 & ors. by its Judgment
wp 226.2023 (J) (f).doc
and order dated 11th April, 2022 without hearing candidates
who got adversely affected by it. Such affected candidates were
required to institute OA Nos.775 of 2022 & ors. If the Tribunal
was to allow OA Nos.775 of 2022 & ors, the same would have
resulted in conflicting judgments in respect of same selection.
The course of action to be adopted in a situation like this is
stated by the Apex Court in its Judgment in the case of K. Ajit
Babu and Others V. Union of India and Others 3. In Paragraph 6
of the Judgment, the Apex Court has held as under;
“4. ……. Often in service matters the judgments rendered either by
the Tribunal or by the Court also affect other persons, who are not
parties to the cases. It may help one class of employees and at the
same time adversely affect another class of employees. In such
circumstances the judgments of the courts or the tribunals may not
be strictly judgments in personam affecting only the parties to the
cases, they would be judgments in rem. In such a situation, the
question arises: What remedy is available to such affected persons
who are not parties to a case, yet the decision in such a case
adversely affects their rights in the matter of their seniority…….
5. The Tribunal rejected the application of the appellant merely on
the ground that the appellant was seeking setting aside of the
judgment rendered by the Central Administrative Tribunal,
Ahmedabad in the case of P.S. John (supra) in TA No. 263 of 1986.
It is here that the Tribunal apparently fell in error. No doubt the
decision of the Tribunal in the case P.S. John was against the
appellant but the application filed by the appellant under Section 19
of the Act has to be dealt with in accordance with law.
6. Consistency, certainty and uniformity in the field of
judicial decisions are considered to be the benefits arising
out of the “Doctrine of Precedent”. The precedent sets a
pattern upon which a future conduct may be based. One of
the basic principles of administration of justice is, that the
cases should be decided alike. Thus the doctrine of
wp 226.2023 (J) (f).doc
precedent is applicable to the Central Administrative
Tribunal also. Whenever an application under Section 19 of
the Act is filed and the question involved in the said
application stands concluded by some earlier decision of
the Tribunal, the Tribunal necessarily has to take into
account the judgment rendered in the earlier case, as a
precedent and decide the application accordingly. The
Tribunal may either agree with the view taken in the
earlier judgment or it may dissent. If it dissents, then the
matter can be referred to a larger Bench/Full Bench and
place the matter before the Chairman for constituting a
larger Bench so that there may be no conflict upon the two
Benches. The larger Bench, then, has to consider the
correctness of the earlier decision in disposing of the later
application. The larger Bench can overrule the view taken
in the earlier judgment and declare the law, which would
be binding on all the benches (see John Lucas1). In the
present case, what we find is that the Tribunal rejected the
application of the appellants thinking that the appellants
are seeking setting aside of the decision of the Tribunal in
Transfer Application No.263 of 1986. This view taken by
the Tribunal was not correct. The application of the
appellant was required to be decided in accordance with
law.”
16. Similar proposition is laid down by the Apex Court in its
judgment in Gopabandhu Biswal v. Krishna Chandra Mohanty4,
in which it is held in Para 11 as under:
11. According to the applicants certain documents though produced
before the Tribunal were not noticed by the Tribunal in deciding the
main matter. Even so, once a judgment of a Tribunal has attained fi-
nality, it cannot be reopened after the special leave petition against
that judgment has been dismissed. The only remedy for a person
who wants to challenge that judgment is to file a separate applica-
tion before the Tribunal in his own case and persuade the Tribunal
either to refer the question to a larger Bench or, if the Tribunal
prefers to follow its earlier decision, to file an appeal from the Tri-
bunal's judgment and have the Tribunal's judgment set aside in ap-
peal. A review is not an available remedy.
(emphasis supplied)
17. Thus, following the Judgment in K. Ajit Babu and
Gopabandhu Biswal (supra), the candidates who were
adversely affected by the Judgment and Order dated 11th April,
2022 rightly instituted fresh Original Applications (OA
Nos.775 of 2022 & ors). However what is not done by the
Tribunal was to follow mandate of the Judgments of the Apex
Court in K. Ajit Babu and Gopabandhu Biswal. It ought to have
proceeded to decide OA Nos.775 of 2022 & ors by directing
impleadment of all Applicants of OA Nos. 144/2022 & Ors.
thereto. If after hearing all the parties, the Tribunal was to
arrive at a conclusion that the view taken by it in its earlier
order dated 11th April 2022 was correct, OA Nos.775 of 2022 &
ors could be dismissed. On the other hand, if the Tribunal was
to disagree with the view taken in its order dated 11 th April
2022, OA Nos.775 of 2022 & ors would then be referred to
larger Bench of three learned Members. This is the mandate of
judgments in K. Ajit Babu and Gopabandhu Biswal.
18. The Tribunal however adopted procedure unknown to
law by recalling its order dated 11 th April 2022 passed in OA
No.144 of 2022 & ors while hearing OA No.775 of 2022 & ors.
wp 226.2023 (J) (f).doc
it is incomprehensible as to how the Tribunal could have
passed any order in OA Nos. 144/2022 & ors while hearing
altogether different OAs. To make things worse, the order of
recall was passed behind the back of Applicants of OA Nos.
144/2022 & Ors. We find that there was no necessity for the
Tribunal to recall Judgment and order dated 11 th April, 2022.
Instead, the Tribunal ought to have simply directed the
Applicants of OA Nos.775 of 2022 & ors, to implead all the
applicants of OA No.144 of 2022 & ors, as party-respondents
and after hearing them, ought to have decided OA No.775 of
2022 & ors. If it was to agree with the view taken in its
Judgment and Order dated 11th April, 2022, it could have
dismissed OA No.775 of 2022 & ors. On the other hand, if the
Tribunal was to form an opinion that a view taken in OA No.144
of 2022 & ors was erroneous, it could have proceeded to refer
OA No.775 of 2022 & ors to larger Bench following the
mandate of the Judgments in K. Ajit Babu and Gopabandhu
Biswal. The erroneous procedure for making a reference to
larger Bench by recalling order in OA 144/2022 & Ors seems to
have been adopted by the Tribunal as the Judgments in K. Ajit
Babu and Gopabandhu Biswal were possibly not cited before it.
wp 226.2023 (J) (f).doc
19. We are thus not in agreement with the procedure
adopted by the Tribunal in recalling its Judgment and Order
dated 11th April, 2022 for the purpose of referring both set of
Original Applications to a larger Bench. However, at the same
time, though the procedure adopted by the Tribunal does not
commend us, we do not find any reason to interfere in the
ultimate decision of the Tribunal to refer the Original
Applications to a larger Bench. True it is that the Tribunal
ought to have first recorded a finding for disagreement with
the view taken in its order dated 11th April 2022 and then
make an order of reference to a larger Bench. It also ought to
have formulated the exact issue for reference. However since
much water has flown by now, it would not be appropriate to
set aside the impugned orders and to relegate the matter back
to the Tribunal for following the correct procedure for making
reference as mandated in K. Ajit Babu. Since the reference is
already made to larger Bench and since both the sets of parties
are already before the Tribunal, ends of justice would meet if
the larger Bench of the Tribunal is permitted to decide the
controversy before it.
20. It also appears that there is another decision rendered by
the bench of the Tribunal at Nagpur on 31 st March 2022. This
is yet another reason why the larger Bench of the Tribunal
decides the subject matter pending before it. The decision of
the larger Bench would prevail over all past decisions rendered
by the Division Benches of the Tribunal at various Benches.
Therefore, though we are not in agreement with the procedure
adopted by the Tribunal while referring the Original
Applications to a larger Bench, we are not inclined to interfere
in the impugned orders. However, it is made clear that our
decision is in view of the peculiar facts and circumstances of
the present case and the same shall not be construed to mean
that the course of action adopted by the Tribunal in recalling
the Judgment and Order dated 11th April, 2022 is approved by
us in any manner. Nor this judgment shall be treated as a
21. The present petitioners claim to have been appointed on
the post of Police Constable (Driver) in pursuance of the
Judgment and Order dated 11 th April, 2022 passed in OA
No.144 of 2022 & ors. Since the Judgment and Order dated
11th April, 2022 is already recalled, the same may affect the
wp 226.2023 (J) (f).doc
appointments of the petitioners. We are informed that the
larger Bench of the Tribunal has commenced the hearing of
both set of the Original Applications on 5 th January, 2023.
Since the larger Bench is already seized of the Original
Applications, it would be in the fitness of the things if status
with regard to the appointments of the petitioners is
maintained till the larger Bench of the Tribunal finally takes
decision in the Original Applications.
22. We therefore do not find any valid reason to interfere with
the orders passed by the Tribunal on 20th December 2022 and
22nd December 2022 and the present petitions must fail to that
extent. The only interference which we propose to make is to
protect the status of service of the Petitioners during pendency
of proceedings before the larger bench,
23. We accordingly proceed to pass the following order :-
(a) Till the matter is decided by the larger Bench, status
quo as on today be maintained.
(b) In view of the fact that the matter is referred to the
larger Bench, we request to the Tribunal (larger
wp 226.2023 (J) (f).doc
Bench) to hear the matter expeditiously considering
the issues involved.
(c) All contentions of respective parties are kept open.
24. The Writ Petitions stand disposed of accordingly. Rule
stands discharged.
|
The Bombay High Court has refused to interfere in the Maharashtra Administrative Tribunal’s decision to refer a dispute regarding the 2019 recruitment of police constables to a larger bench despite disapproving the procedure adopted by the tribunal.
Ordering a status quo in the matter, a division bench of Acting Chief Justice SV Gangapurwala and Justice Sandeep v. Marne said since the reference has already made to larger Bench and since both the sets of parties are already before the Tribunal, ends of justice would meet if the larger Bench of the Tribunal is permitted to decide the controversy before it.
“However since much water has flown by now, it would not be appropriate to set aside the impugned orders and to relegate the matter back to the Tribunal for following the correct procedure for making reference as mandated in K. Ajit Babu," said the court.
The petitioners were candidates in the recruitment for Police Constable (Driver), 2019. Their names were included in the merit list but they were subsequently deleted from the revised merit list because they participated in the selection process of more than one district. The petitioners, among others, challenged the revised merit list and the tribunal by common order in April 2022 set aside deletion of their names from the merit list.
When the state government implemented the tribunal’s judgement, the names of some of the candidates in the revised merit list got deleted and they were terminated from service. Those candidates approached the tribunal in a second set of Original Applications.
The tribunal noticed that the implementation of its judgement in the first set of applications resulted in termination of service of the second set of applicants. Therefore, it last month recalled its earlier judgement and restored the first set of original applications. The tribunal then referred both sets of original applications to a larger bench of three members. The petitioners (first set of applicants) challenged this before the High Court.
The court noted that when the first set of original applications was filed, the merit lists had been already declared and the names of selected candidates were known. Therefore, while challenging the merit list, the first set of applicants should have impleaded at least some of the selected candidates in a representative capacity, it added.
"We feel that the course of action adopted by the Tribunal in entertaining OA Nos, 144 of 2022 & Ors without impleadment of affected selected candidates was against the well settled principles enunciated in various judgments of the Apex Court," said the bench.
The court noted that the tribunal had already allowed the first set of applications and allowing the second set of applications would have resulted in conflicting judgements regarding the same selection process.
The tribunal should have decided the second set of applications by directing impleadment of all applicants of the first set, the court said.
"If after hearing all the parties, the Tribunal was to arrive at a conclusion that the view taken by it in its earlier order dated 11th April 2022 was correct, OA Nos.775 of 2022 & ors could be dismissed. On the other hand, if the Tribunal was to disagree with the view taken in its order dated 11th April 2022, OA Nos.775 of 2022 & ors would then be referred to larger Bench of three learned Members. This is the mandate of judgments in K. Ajit Babu and Gopabandhu Biswal," said the bench.
The court further said the Tribunal adopted procedure "unknown to law" by recalling its order in the first set of applications while hearing the second set, the court said. It is "incomprehensible" how the tribunal passed any order in the first set of applications while hearing altogether different applications, it added.
"To make things worse, the order of recall was passed behind the back of Applicants of OA Nos. 144/2022 & Ors," said the bench.
While refusing to interfere with the tribunal's decision to refer the matter to a larger bench, the court made it clear that its decision is not a precedent.
"However, it is made clear that our decision is in view of the peculiar facts and circumstances of the present case and the same shall not be construed to mean that the course of action adopted by the Tribunal in recalling the Judgment and Order dated 11th April, 2022 is approved by us in any manner. Nor this judgment shall be treated as a precedent."
The court also said the decision of the larger Bench would prevail over all past decisions rendered by the Division Benches of the Tribunal at various Benches.
"We are informed that the larger Bench of the Tribunal has commenced the hearing of both set of the Original Applications on 5th January, 2023. Since the larger Bench is already seized of the Original Applications, it would be in the fitness of the things if status with regard to the appointments of the petitioners is maintained till the larger Bench of the Tribunal finally takes decision in the Original Applications," it added.
The court said till the matter is decided by the larger Bench, status quo be maintained. It also requested the larger bench to hear the matter expeditiously considering the issues involved.
Advocates Sandeep Dere and L.S. Deshmukh represented the petitioners. Advocates Pranav Avhad and Purna S. Pradhan represented the second set of applicants.
Case no. – Writ Petition No. 224 of 2023
Case Title – Nitin Pandurang Shejwal v. State of Maharashtra and Ors.
|
The appellant-M/s. Punjab Wool Syndicate has come up in
appeal against the order dated 05.03.2010 (Annexure A-10) passed by the
Tribunal dismissing the Appeal (Vat) No. 565 of 2009 of the appellant and
had upheld the penalty of Rs.69,952/- under Section 51(7)(c) of the Punjab
As per the facts culled out from the order dated 24.07.2006
(Annexure A-7) passed by the Assistant Excise and Taxation
Commissioner, Information Collection Centre (Export), Shambhu at
Mehmadpur, the goods were being transferred in Vehicle No. HR-38-9923
from Ludhiana to Delhi. The driver of the vehicle furnished following
documents at the computer counter for the generation of declaration in form
1. Invoice No. 648 dated 12.7.06 of M/S Krishna Paints &
Chemicals, Jalandhar for Rs.67,754/- in favour of M/s Shri
2. Invoice No. 225 dated 12.7.06 of M/S Super Polyme & Co.
Coating Jalandhar for Rs.13,104/- in favour of M/S Shri Balaji
3. GR No. 431 dated 12.7.06 of M/s. H.S.Aujla Transport Service
from Jalandhar to Saharanpur.
4. Invoice No. 8 dated 12.7.06 of M/S R.S. Machi Mart, Ludhiana
for Rs.30,800/- in favour of Nav Nidh Machine Tolls, Delhi.
5. GR No. 2197 dated 12.7.06 of M/S Tempo Transport Union,
Ludhiana from Ludhiana to New Delhi.
After getting the declaration in form VAT-XXXVI, the driver
of the vehicle produced the above documents before the detaining officer,
who after examining the same, found that the goods seemed to be excessive
and needed physical verification. The goods were physically verified and
found that the driver of the vehicle did not furnish the information in respect
of Invoices No. 526 and 527 both dated 12.7.2006 and GR Nos. 9411 and
9412. Therefore, the goods were detained under Section 51(6) of the
Punjab VAT Act, 2005 and a show cause notice was issued to the owner of
the goods i.e. M/S Punjab Wool Syndicate, Ludhiana for 15.7.2006.
After issuing notice, Sunil Nanda, Accounts Manager of the
consignor party appeared before the detaining officer on 15.7.2006 and he
did not furnish information with respect to invoices No. 526 and 527 dated
12.07.2006. He furnished bank guarantee for Rs.50,000/- and Rs.20,000/-
(Total Rs.70,000/-) and the goods were released by the detaining officer.
Thereafter, show cause notice under Section 51(7)(c) of the Punjab VAT
Act, 2005 was issued to the owner of the goods i.e. M/s. Punjab Wool
Syndicate, Ludhiana for 21.07.2006. He was confronted with the report of
the detaining officer that the driver of the vehicle had failed to furnish
information with respect to goods covered by Invoices No. 526 and 527 at
the I.C.C. The dealer failed to produce his books of account before the
detaining officer and also failed to give any explanation for not submitting
the information in respect of above said two invoices. The value of the
goods was Rs.1,39,904.10 and they were meant for trade. Since the dealer
had not furnished information at the I.C.C. and the intention was to
avoid/evade tax due to the State, a penalty of Rs.69,952/- was imposed. On
appeal, the said order was affirmed by the Deputy Excise & Taxation
Commissioner (A), Patiala Division, Patiala vide order dated 15.06.2009
(Annexure A-8). Vide order dated 05.03.2010 (Annexure A-10), the Value
Added Tax Tribunal, Punjab, Chandigarh had dismissed the appeal filed by
the appellant against the order dated 15.06.2009.
Learned counsel for the appellant has referred to the supply
order (Annexure A-1) given by the Additional Deputy Inspector General of
Police, CRPF, Jalandhar wherein nomenclature of the goods was specified
as Beret Wool Knitted with Nylon Tape Binding (Khakhi) (at page No. 15
of the paper-book) and the total amount was Rs.38,42,564/- of the said
goods. As per the supply order, two of the destinations were the Additional
DGIGP, GC, CRPF, Mokambehghat-803303 (Bihar) and the Additional
DIGP, GC, CRPF, Rangareddy-500078 (Andhra Pradesh). He has also
placed on necessary bills bearing Invoices No. 526 and 527 dated
12.07.2006 (Annexures A-2 and A-3) respectively in favour of the
Additional DIG, CRPF. The materials were booked in the Transport
Company as these were in small quantities. G.Rs (Annexures A-4 and A-5)
were issued by Satkar Tempo Transport Union dated 12.07.2006 upto Delhi
Railway Station. From Delhi, the goods were to be sent by Train to the
actual consignees. This fact was mentioned in the G.Rs and it was a
Government supply. The inspection notes are Annexure A-6. After loading
the goods, the driver of the vehicle reached at I.C.C. Shambhu where he
furnished all the documents for generation of Form VAT-XXXVI.
Learned counsel for the appellant has further argued that the
person operating the computer failed to generate two bills of the appellant
due to oversight. The driver of the vehicle furnished all the documents
alongwith the computer generated information before the officer- incharge
who detained the goods on the ground that no information was generated in
respect of goods. He has further argued that keeping in view the supply
order (Annexure A-1) and inspection notes (Annexure A-6), the sale was
being made by the appellant to Central Government Department and the
Central Government Department had received sanction from the financial
authority to purchase these things. It was not a case where name of the
purchaser had not been disclosed and all the invoices had been produced
alongwith G.Rs. To support his contention, he has referred to the following
judgments on the proposition that all the necessary documents were in
possession of the driver before the I.C.C. and there was no intention to
Gobindgarh v. State of Punjab (2008) 31 PHT 398 (PVT)
School, Harbanspura, Mandi Gobindgarh vs. State of
3. Krish Pack Industries Vs. State of Punjab and others
4. M/s. Ganpati Foods vs. The State of Punjab and another
5. State of Punjab and another vs. Shree Ram Panels (2011)
6. M/s. Balaji Trading Company, Rewari vs. The State of
Haryana and another 2016 SCC Online P&H 4741
Since the sale was being made to the Government Department,
the invoices and G.Rs could not have been doubted keeping in view
inspection notes (Annexure A-6) which was with the driver and no attempt
was made to evade tax due to the State. Had the driver not produced the
invoices for generation of declaration in Form VAT-XXXVI, it could have
been a reason to initiate penalty proceedings. Since, all the documents
including Invoices No. 648 dated 12.7.06, 225 dated 12.7.06, 8 dated
12.7.06 and GRs No. 431 dated 12.7.06 and 2197 dated 12.7.06 were
produced alongwith Invoices No. 526 and 527 dated 12.7.2006 and GR Nos.
9411 and 9142 were produced by the driver at I.C.C., the findings recorded
by the Assistant Excise and Taxation Commissioner, ICC (Export)
Shambhu that the driver did not give any information with respect to
invoices No. 526 and 527 and subsequently imposing penalty is liable to be
set aside as the driver is not expected to know or give details of these
Learned counsel for the respondent-State has argued that in fact
Form VAT-XXXVI had not been issued to the appellant company for non-
producing invoices No. 526 and 527 before the I.C.C. but the goods were
detained as they seemed to be in excess of the invoices produced before the
I.C.C. He has finally argued that the driver had generated 3 bills whereas
information of two bills were not generated and the Tribunal had rightly
dismissed the appeal of the appellant by referring to judgment in the case of
M/s. Jain Industries Company vs. State of Punjab 2008(31) PHT page No.
Heard learned counsel for the parties and perused the case file.
At the outset, reference can be made to M/s. Jain Industries's
case (supra). This judgment was passed by the Value Added Tax Tribunal,
Punjab, Chandigarh. In that case, the goods had been transferred from
Mandi Gobindgarh to Raipur in Chattisgarh and the driver of the vehicle
furnished information with respect to four bills and GRs and generated
Form No. XXXVI in respect of those bills and when the goods were
detained, invoice No. 26 dated 26.06.2006 of Jain Industrial Company,
Mandi Gobindgarh in favour of Bajrang Metallic and Power Ltd., Raipur
(Chattisgarh) and GR No. 6337 dated 26.06.2006 of M/s. Ashok Akal
Transport Company (Registered) from Mandi Gobindgarh to Raipur
(Chattisgarh) were found. The driver had not given information with
respect to these documents at the I.C.C. and no Form No. XXXVI was
generated with a view to evade tax. He further gave a statement that owner
had asked him that no such forms may be generated at the I.C.C. Hence, the
facts of that case show that apart from four bills, there were two other bills
of other private companies, which were not shown at the time of generation
of Form No. XXXVI at I.C.C. and this would amount to attempt to evade
However, in the facts of the present case, sale was processed to
be made to CRPF as per supply order (Annexure A-1) and all the
information were given at the computer centre and all the documents were
shown but when the goods were detained, other two invoices were also
shown. The supply order was also shown which was given by the
Additional Deputy Inspector General of Police, CRPF, Jalandhar. Hence, it
was a sale which was made to Government Department and the appellant
had also produced GRs and all the invoices at the time of checking. There
was no attempt made by the driver not to show invoices before the detaining
In M/s. Ganpati Foods vs. The State of Punjab and another
(2014) 67 VST 348, a Coordinate Bench of this Court observed that in that
case Dealer was registered under the provision of Haryana Value Added
Tax, Act, 2003. It was having oil solvent plant at Nilokheri in District
Karnal. The appellant sold rice bran oil to one M/s. Bathinda Chemicals
Limited, Bathinda, a registered dealer under the Punjab VAT Act vide bill
dated 28.01.2008 booked with Ahmedgarh Transport Co., Ludhiana for its
transportation from Nilokheri to Bathinda. On its way from Nilokheri to
Bathinda, the driver of the vehicle had to cross the I.C.C. (Import) Shambhu
set up by the Punjab Government under Section 51 of the Punjab VAT Act.
The driver of the vehicle entered the I.C.C. and after getting necessary entry
made by the E.T.O. and clearance from the police personnel, a stamp was
affixed on his documents to this effect. When the documents were returned
to the driver, he was under the impression that necessary entry had been
made. On its way to Bathinda, it was checked by the Excise and Taxation
Officer (Mobile Wing), Bathinda and a case was made out for violation of
Section 51(6)(b) of the Punjab VAT Act on the ground that the information
had not been generated at the I.C.C. section centre while entering Punjab
State. The goods were detained and were subsequently released after
furnishing bank guarantee on 01.02.2008 and, thereafter, penalty amounting
to Rs.7,18,913/- was imposed by the Assistant Excise and Taxation
Commissioner (AETC) vide order dated 06.02.2008. Against the order
dated 06.02.2008, appeal was filed by the assessee before the first appellate
authority which was dismissed vide order dated 29.09.2008 and the second
appeal was dismissed by the Tribunal on 16.04.2009. The VAT appeal was
allowed by the Coordinate Bench and the penalty was set aside on the
ground that the goods in question were duly accompanied by invoice/GR,
statutory form VAT and the insurance policy with stamp of I.C.C. at
Shambhu on the GR. However, the driver being ignored and illiterate,
could not generate declaration at the I.C.C. and this in itself would not
amount an attempt to evade tax as the documents were sufficient to draw a
conclusion that there was no attempt to evade tax unless the documents
were rejected on the ground that they were not genuine.
Reference can now be made to judgment passed in State of
Punjab and another vs. Shree Ram Panels (2011) 46 VST 424, wherein a
coordinate Bench of this Court had dismissed the appeal filed by the State
of Punjab against the order of Tribunal as the Tribunal had accepted the
appeal filed by the assessee and set aside the imposition of penalty on the
ground that there was no violation of Section 51(4) of the Punjab Value
Added Tax Act with a view to make an attempt to evade tax as the driver of
the vehicle was in possession of goods receipts alongwith invoices and
produced the same as well.
Further reference can be made to a recent judgment passed by
the Division Bench of this Court in the case of M/s. Balaji Trading
Company, Rewari vs. The State of Haryana and another 2016 SCC
Online P&H 4741. In that case, the assessee Balaji Trading Company was
dealing with the purchase orders from NAFED, a Government of India
Undertaking. Annexure A-3 was the invoice dated 28.01.2003 and challan
to substantiate that the transaction was with the Government organization
NAFED was held to be bonafide and genuine as the documents were
required to be examined and only on the statement of the driver, penalty
could not be imposed.
In the facts of the present case, the appellant was making sale to
Government Department all over India as the supply order was given by the
Additional Deputy Inspector General of Police, CRPF, Jalandhar and the
driver had produced 5 documents before the computer centre at ICC but
VAT-XXXVI could not generate and at the time of checking, apart from 5
documents two invoices No. 526 and 527 dated 12.7.2006 and GR Nos.
9411 and 9412 were also produced. Since the respondents, in the present
case, were not disputing the fact that the sale was being made to CRPF and
only on account of non-generation of VAT-XXXVI, penalty could not have
been imposed. Further, in the order dated 05.03.2010 (Annexure A-10), it
was further observed that with respect to Invoices No. 526 and 527, the
driver did not furnish any information. The driver is not required to give
any information with respect to details of the invoices. He is to only
produce documents to show that there was a supply order and GRs had been
issued and he was taking the goods to their destination outside the State.
Further, it is not the case of the respondents that the two invoices No. 526
and 527 did not issue to CRPF. Hence, once the Government Department
had accepted the invoices produced at I.C.C., there was no occasion not to
accept Invoices No. 648, 225 and 8 dated 12.07.06. Similarly, invoices No.
526 and 527 were also issued on the same date i.e. 12.07.2006 with respect
to supply order (Annexure A-1). The driver was not expected to know
details of the supply order. It is not the case of the respondents that on
13.07.2006, the appellant did not produce above said invoices. In one of
the cases as referred above, even non-appearance before the I.C.C. cannot
be made a ground to initiate penalty proceedings if no attempt to evade tax
is made out. However, in the present case, the driver had produced the
documents at I.C.C. and subsequently at the time of checking, he showed all
the invoices. There was no attempt to evade tax. Hence, VAT appeal is
allowed and no case for imposition of penalty is made out under Section
51(7)(c) of the Punjab VAT Act, 2005. Order dated 05.03.2010 (Annexure
A-10) passed by the Tribunal is set aside.
Pending application, if any, stands disposed of.
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The Punjab and Haryana High Court has held that non-appearance before the Information Collection Centre (ICC) cannot be made a ground to initiate penalty proceedings if no attempt to evade tax is made.
The division bench of Justice Ritu Bahari and Justice Manisha Batra has observed that the driver had produced the documents at I.C.C. and subsequently, at the time of checking, he showed all the invoices. There was no attempt to evade tax. Hence, the VAT appeal was allowed, and no case for the imposition of a penalty is made out under Section 51(7)(c) of the Punjab VAT Act, 2005.
The goods were being transferred by vehicle from Ludhiana to Delhi. The driver of the vehicle furnished the documents at the computer counter for the generation of the declaration. After getting the declaration, the driver of the vehicle produced the documents before the detaining officer, who, after examining them, found that the goods seemed excessive and needed physical verification.
The goods were physically verified, and it was found that the driver of the vehicle did not furnish any information with respect to invoices. Therefore, the goods were detained under Section 51(6) of the Punjab VAT Act, 2005, and a show-cause notice was issued to the owner of the goods.
The appellant contended that the person operating the computer failed to generate two bills for the appellant due to an oversight. The driver of the vehicle furnished all the documents along with the computer-generated information before the officer-in-charge, who detained the goods on the ground that no information was generated with respect to the goods.
The department contended that Form VAT-XXXVI had not been issued to the appellant company for not producing invoices before the I.C.C., but the goods were detained as they seemed to be in excess of the invoices produced before the I.C.C. The driver had generated three bills, whereas information for two bills was not generated.
The court held that once the Government Department had accepted the invoices produced at I.C.C., there was no reason not to accept Invoices Nos. 648, 225, and 8 dated July 12, 2006. Similarly, invoices Nos. 526 and 527 were also issued on the same date, i.e., July 12, 2006, with respect to the supply order. The driver was not expected to know details about the supply order.
Case Title: M/s. Punjab Wool Syndicate Versus The State of Punjab and another
Date: 18.01.2023
Counsel For Appellant: Advocates Sandeep Goyal, Nazuk Singhal, Aakriti
Counsel For Respondent: A.A.G. Alankar Narula
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The petitioner-accused No.1 is before this Court seeking
grant of bail under Section 439 of Cr.P.C. in Crime No.36 of
2020 of Bagalur Police Station, pending in CC No.3468 of 2020
on the file of the learned V Additional District Judge, Bengaluru
Rural District at Devanahalli, registered for the offences
punishable under Sections 302, 120-B read with Section 149 of
the Indian Penal Code (for short 'IPC'), on the basis of the first
information lodged by the informant K Dhanalakshmi.
2. Heard Sri K Raghavendra Gowda, learned Counsel
for the petitioner and Sri K Rahul Rai, learned High Court
Government Pleader for the respondent -State. Perused the
materials on record.
3. Learned counsel for the petitioner submitted that
the petitioner is arrayed as accused No.1. He is innocent and
has not committed any offences as alleged. He has been falsely
implicated in the matter without any basis. He was
apprehended on 15.03.2020 and since then he is in judicial
custody. The investigation has been completed and the charge
sheet is also filed. The allegations against accused Nos.1 to 3
CRL.P No. 11294 of 2022
are similar with regard to the overt act said to have been
committed by them. However, accused Nos.2 and 3 have
already been enlarged on bail. Therefore, on the ground of
parity, this petitioner is also entitled to be enlarged on bail.
The petitioner is the permanent resident of the address
mentioned in the cause title to the petition and is ready and
willing to abide by any of the conditions that would be imposed
by this Court. Hence, he prays to allow the petition.
4. Per contra, learned High Court Government Pleader
opposing the petition submitted that serious allegations are
made against the petitioner for having committed the offences.
The present petitioner is the main accused. The charge sheet
is already filed which makes out a prima facie case against the
petitioner for having committed the offences. Considering the
nature and seriousness of the offences, the petitioner is not
entitled for grant of bail. Hence, he prays for dismissal of the
5. In view of the rival contentions urged by the
learned counsel for both the parties, the point that would arise
for my consideration is:
“Whether the petitioner is entitled
for grant of bail under Section 439 of
My answer to the above point is in ‘Affirmative’ for the
6. The allegations made against the petitioner and
other accused are of serious nature. The charge sheet filed by
the Investigating Officer makes out a prima facie case against
all the accused including the petitioner. Admittedly, the overt
act alleged against the present petitioner is similar to that of
accused Nos.2 and 3. It is not in dispute that accused Nos.2
and 3 are already enlarged on bail. Under such circumstances,
benefit of parity is to be extended to the present petitioner.
Moreover, the investigation is completed and the charge sheet
is also filed. Therefore, detention of the petitioner in custody
would amount to infringement of his right to life and liberty.
Hence, I am of the opinion that the petitioner is entitled to be
enlarged on bail subject to conditions, which will take care of
the apprehension expressed by the learned High Court
CRL.P No. 11294 of 2022
Government Pleader that the petitioner may abscond or may
tamper or threaten the prosecution witnesses.
7. Accordingly, I answer the above point in the
affirmative and proceed to pass the following:
The petition is allowed.
The petitioner is ordered to be enlarged on bail in Crime
No.36 of 2020 of Bagalur Police Station, pending in CC No.3468
of 2020 on the file of the learned V Additional District Judge,
Bengaluru Rural District at Devanahalli, on obtaining the bond
in a sum of Rs.2,00,000/- (Rupees Two Lakhs only) with two
sureties for the likesum to the satisfaction of the jurisdictional
Court, subject to the following conditions:
a). The petitioner shall not commit similar
offences.
b). The petitioner shall not threaten or tamper
with the prosecution witnesses.
c). The petitioner shall appear before the Court
as and when required.
If in case, the petitioner violates any of the conditions as
stated above, the prosecution will be at liberty to move the
Trial Court seeking cancellation of bail.
On furnishing the sureties by the petitioner, the Trial
Court is at liberty to direct the Investigating Officer to verify
the correctness of the address and authenticity of the
documents furnished by the petitioner and the sureties and a
report may be called for in that regard, which is to be
submitted by the Investigating Officer within 5 days. The Trial
Court on satisfaction, may proceed to accept the sureties for
the purpose of releasing the petitioner on bail.
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The Karnataka High Court has granted bail to a murder accused, observing that though the allegations against him and others are of serious nature but the overt act alleged against him is similar to that of other accused, who have already been granted bail.
"The charge sheet filed by the Investigating Officer makes out a prima facie case against all the accused including the petitioner. Admittedly, the overt act alleged against the present petitioner is similar to that of accused Nos.2 and 3. It is not in dispute that accused Nos. 2 and 3 are already enlarged on bail. Under such circumstances, the benefit of parity is to be extended to the present petitioner," it said.
The court also noted that the investigation has been completed and the charge sheet has also been filed. "Therefore, detention of the petitioner in custody would amount to infringement of his right to life and liberty," it added.
A single judge bench of Justice M G Uma made the observations while granting bail to one Ravi @ Kamaran Ravi. The petitioner is charged for offences punishable under sections Sections 302, 120-B read with Section 149 of the Indian Penal Code, on the basis of the first information lodged by the informant K Dhanalakshmi, in 2020.
He approached the court seeking bail contending that he is innocent and has not committed any offences as alleged. He has been falsely implicated in the matter without any basis, his counsel argued. He was apprehended on 15.03.2020 and since then he has been in judicial custody, the court was told.
“The allegations against accused Nos.1 to 3 are similar with regard to the overt act said to have been committed by them. However, accused Nos.2 and 3 have already been enlarged on bail. Therefore, on the ground of parity, this petitioner is also entitled to be enlarged on bail," the counsel representing the accused submitted.
The prosecution opposed the plea saying serious allegations have been made against the petitioner for having committed the offences. The petitioner is the main accused, it said
"The charge sheet is already filed which makes out a prima facie case against the petitioner for having committed the offences. Considering the nature and seriousness of the offences, the petitioner is not entitled for grant of bail," the government pleader submitted.
Case Title: Ravi @ Kamran Ravi And State of Karnataka
Case No: CRIMINAL PETITION NO. 11294 OF 2022
Date of order: 05-01-2023
Appearance:
Advocate Raghavendra Gowda K, Advocate Mohankumara D for petitioner.
HCGP K. Rahul Rai for respondent.
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Present : Mr. Munfaid Khan, Advocate for the petitioners.
The limited challenge to the order dated 23.09.2021 passed by
the Motor Accident Claims Tribunal, Palwal (hereinafter referred to as the
‘Tribunal’) is to the extent whereby the Tribunal has directed 50% of the
compensation awarded to be deposited in fixed deposits. The further
challenge is to the order dated 12.05.2022 dismissing the application filed by
the petitioners for release of the amount directed to be deposited in the
Learned counsel for the petitioners would contend that the
petitioners lost their son namely, Sakir, in a motor vehicle accident. The
Tribunal awarded a total amount of Rs.11,18,272/- along with interest @
7.5% per annum from the date of filing of the claim petition till its
realization. However, it was further directed that on realization of the
awarded amount together with the interest, the same shall be shared equally
by the claimants and 50% of the amount of the share of the claimants was
directed to be paid in cash to them whereas remaining 50% was directed to
be deposited in a FDR in a nationalized bank in their names for a period of
three years.
authenticity of this order/judgment
CR No.2270 of 2022 -2-
Learned counsel for the petitioners would contend that both the
petitioners are over 40 years of age and have three other children to look
after and hence the money is urgently required by them. In support of his
contention, he relies on judgment of the Hon’ble Supreme Court in H.S.
Ahammed Hussain vs. Irfan Ahammed, [2002(3) RCR (Civil) 563] to
contend that in the case of an adult it would not be appropriate to direct the
deposit of the amount of compensation in a fixed deposit.
I have heard learned counsel for the petitioners.
In the present case, the claimant-petitioners are the parents of
the deceased who are wanting the release of the amount which has been
awarded to them but 50% of the awarded amount has been directed to be
deposited in FDRs. It is contended by the learned counsel for the petitioners
that the petitioners require the amount for taking care of their three other
minor children and in support of his contention learned counsel for the
petitioners has relied upon a judgment by the Hon’ble Supreme Court in
H.S. Ahammed Hussain’s case (supra) wherein it has been held as under :
“8. Learned counsel for the appellant lastly submitted
that the amount of compensation payable to mothers of
the victims should not have been directed to be kept in
fixed deposit in a nationalised bank. In the facts and
circumstances of the present case, we are of the view
that the amount of compensation awarded in favour of
the mothers should not be kept in fixed deposit in a
nationalised bank. In case the amounts have not been
authenticity of this order/judgment
CR No.2270 of 2022 -3-
already invested, the same shall be paid to the mothers,
but if, however, invested by depositing the same in fixed
deposit in a nationalised bank, there may be its
premature withdrawal in case the parties so intend.”
Keeping in view the law laid down in the above referred case as
well as the fact that the petitioners are over 40 years of age and have also
three other minor children to look after, the present petition is allowed. The
order dated 12.05.2022 passed by the Tribunal is set aside and the award
dated 23.09.2021 is modified to the said extent. The amount of
compensation lying deposited in the shape of FDRs be released to the
petitioners forthwith.
Disposed off in the above terms. Pending applications, if any,
also stand disposed off.
NOTE : Whether speaking/non-speaking : Speaking
Whether reportable : YES/NO
authenticity of this order/judgment
|
The Punjab and Haryana High Court recently allowed the plea of bereaved parents, seeking release of 50% compensation amount that was granted towards loss of their child in a motor accident, to be released from 3 years Fixed Deposit.Justice Alka Sarin referred to the case of H.S. Ahammed Hussain vs. Irfan Ahammed, [2002(3) RCR (Civil) 563], where the Supreme Court held that the amount...
The Punjab and Haryana High Court recently allowed the plea of bereaved parents, seeking release of 50% compensation amount that was granted towards loss of their child in a motor accident, to be released from 3 years Fixed Deposit.
Justice Alka Sarin referred to the case of H.S. Ahammed Hussain vs. Irfan Ahammed, [2002(3) RCR (Civil) 563], where the Supreme Court held that the amount of compensation awarded in favor of the mothers should not be kept in a fixed deposit in a nationalized bank.
In the present case, the petitioners had challenged an order passed by the Motor Accident Claims Tribunal whereby it was directed that 50% of the compensation awarded be deposited in fixed deposits in their names for a period of three years. The further challenge was to the order dismissing the application filed by the petitioners for release of the amount directed to be deposited in the FDRs.
The petitioners contended that both the petitioners are over 40 years of age and have three other children to look after and hence the money is urgently required by them.
Keeping in view the law laid down in the above referred case as well as the fact that the petitioners are over 40 years of age and have also three other minor children to look after, the present petition is allowed.
The court further set aside the order and award of the Motor Accident Claims Tribunal and ordered the release of the amount of compensation lying deposited in the shape of FDRs.
The order dated 12.05.2022 passed by the Tribunal is set aside and the award dated 23.09.2021 is modified to the said extent. The amount of compensation lying deposited in the shape of FDRs be released to the petitioners forthwith.
Case Title: Ayyub Khan and Anr VERSUS Pratap Gurjar and Ors.
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Case :- APPLICATION U/S 482 No. - 434 of 2023
Applicant :- Chandrapal
Opposite Party :- State Of U.P. And 4 Others
Counsel for Applicant :- Hardev Prajapati
Counsel for Opposite Party :- G.A.
Heard Shri Hardev Prajapati, learned counsel for the applicant
and learned A.G.A. Perused the record.
It is contended by learned counsel for the applicant that
respondent nos.3, 4 and 5 are the accused of Special Session
Trial No.183 of 2015 (State vs. Jay Prakash and others) u/s 436,
395, 397 I.P.C., P.S.-Qadar Chowk, District Budaun. It is further
contended by learned counsel for the applicant that respondent
nos.3, 4 and 5 are the police personnel, who are being accused,
but they are not co-operating with the trial.
It is shocking to see that non bailable warrants were issued
against the respondent nos.3, 4 and 5 for the first time way back
on 20.7.2016 and now we are in January, 2023 but after lapse of
even six years, learned Additional District Judge/Special
Court/D.A.A., Badaun was unable to get the non bailable
warrants executed against police personnel. Indeed it is a
shocking state of affairs. The police personnel are not above the
law and the application of law and legal provisions should be
one and same for all and no special treatment shall be given to
any person depending upon his position, power and place in the
society.
Under these circumstances, learned Additional District
Judge/Special Court/D.A.A., Badaun is required to give written
explanation as to why order dated 20.7.2016 issuing non
bailable warrants has not been complied with till date.
Let this matter be come on the board once again on 01.2.2023
as fresh.
By that time this Court expects that if there is no other legal
impediment, the learned Additional District Judge/Special
Court/D.A.A., Badaun shall execute his own non bailable
warrants against the respondent no.3, 4 and 5 and give a report
to this effect by the next date fixed.
Let this order may be handed over to the learned A.G.A. for
communication and compliance.
High Court of Judicature at Allahabad
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The Allahabad High Court recently expressed shock over the non-execution of non-bailable warrants against police personnel accused in a criminal case for 6 years.
The Court also sought a written response from the Additional District Judge/Special Court/D.A.A., Badaun explaining why the order of July 2016 issuing non-bailable warrants has not been complied with to date.
“It is shocking to see that non-bailable warrants were issued against the respondent nos.3, 4 and 5 (police personnel) for the first time way back on 20.7.2016 and now we are in January 2023 but after the lapse of even six years, learned Additional District Judge/Special Court/D.A.A., Badaun was unable to get the non-bailable warrants executed against police personnel,” the bench of Justice Rahul Chaturvedi said.
The bench further added that police personnel are not above the law and the application of law and legal provisions should be one and same for all and no special treatment shall be given to any person depending upon his position, power and place in the society.
The matter came to light while the court dealing with a Section 482 CrPC plea wherein the applicant contended that respondents nos.3, 4 and 5 (police personnel) are the accused in a case u/s 436, 395, 397 IPC, but they are not cooperating with the trial.
Calling it a shocking state of affairs that the NBW was issued against them in the year 2016, however, the same remained unexecuted to date, the Court sought a written explanation from the Court concerned.
The Court also asked the Court concerned to execute non-bailable warrants against respondents no.3, 4 and 5 and give a report to this effect by the next date fixed (February 1, 2023).
Appearances
Counsel for Applicant: Hardev Prajapati
Counsel for Opposite Party: G.A.
Case title - Chandrapal vs. State Of U.P. And 4 Others [APPLICATION U/S 482 No. - 434 of 2023]
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Sri.Sagar., learned counsel., for the petitioner has
appeared in person.
Sri. Gopalkrishna Soodi., learned counsel for respondent
No.1 has appeared through video conferencing.
2. The brief facts are these:
It is stated that the petitioner was working as Circle
Inspector at D.R.B.C Branch, Chikkaballapur at the time of the
alleged incident. Later, he was promoted and he was posted at
It is averred that the second respondent telephoned the
petitioner on 26.09.2010 and informed him that on 19.09.2010
that while having food at the LVT Daba, he had a scuffle with a
person named Mr.Lakshmikanth and 15 others concerning the
payment of commission for purchasing land. The second
respondent requested the petitioner to register a case based on
the complaint given to the Doddaballapur Police Station. Based
WP No. 51993 of 2015
on the request, the petitioner telephoned the PSI Mr.Rajendra
Kumar, and instructed him to take necessary action. Pursuant
to the complaint given by the second respondent on
26.09.2010 the Police Sub-Inspector -Mr.Rajendra Kumar., filed
FIR in Cr.No.107/2010 for the alleged offences punishable
under Sections 143, 147, 148, 342, 323, 324, 506(b), 327 read
with Section 149 of IPC against Mr.Lakshmikanth and fifteen
Thereafter, the PSI being the Investigating Officer,
conducted the investigation and filed a charge sheet with Addl.
Civil Judge and JMFC, Doddaballapur. Based on the charge
sheet, the Court conducted proceedings and passed the
Judgment acquitting the accused Mr.Lakshmikanth on
As things stood thus, Sri.K.A.Appanna - the second
respondent filed a complaint with the Karnataka State Human
Rights Commission against the petitioner and Mr.Rajendra
Kumar, the PSI of Doddaballapur. Based on the complaint, the
Commission sent a copy of the complaint to the Inspector
General of Police, Karnataka Human Rights Commission for
WP No. 51993 of 2015
conducting an inquiry and to submit a report. Accordingly, the
IGP, KHRC after conducting an inquiry, submitted a report.
Based on the report submitted by IGP, KHRC proves the
charges only against Mr.Rajendra Kumar, PSI Doddaballapur.
The Commission issued notice to Mr.Rajendra Kumar on
30.04.2012 to give a written reason for the report submitted by
the Inspector General of Police, Karnataka Human Rights
Commission. Accordingly, Mr.Rajendra Kumar submitted a
written statement of reason justifying his actions.
Subsequently, the Commission based on the complaint, report
of IGP, KHRC, and a written statement of reason by
Mr.Rajendra Kumar, PSI Doddaballapur vide order dated
20.06.2015. imposed a fine of Rs.10,000/- (Rupees Ten
Thousand only) not only on Mr. Rajendra Kumar’s PSI but also
on the petitioner.
Under these circumstances, the petitioner left with no
other alternative and efficacious remedy is filing this Writ
Petition under Articles 226 and 227 of the Constitution of
Learned counsel for the petitioner and respondent No.1
urged several contentions.
4. Heard, the contentions urged on behalf of the
respective parties and perused the Writ papers and also the
Annexures with utmost care.
Sri.Sagar., learned counsel for the petitioner vehemently
contended that the petitioner being the Circle Inspector has
discharged his duties honestly and obediently. He argued that
the moment the petitioner received a telephone call from the
complainant – the second respondent, he properly instructed
the PSI Mr.Rajendra Kumar to act in accordance with the law.
He argued by saying that under his direction, the PSI filed FIR
in Crime No.107/2010. Hence, there is no dereliction of duty
as noticed by the Commission. Counsel, therefore, submits that
the order passed by the Commission imposing a penalty of
Rs.10,000/- (Rupees Ten Thousand only) on the petitioner is
By way of answer, Sri.Gopalkrishna Soodhi., learned
counsel for Commission submits that the Commission has found
that the petitioner being the Circle Inspector has not
discharged his duties properly. Hence, taking note of the
material evidence on record, in particular the statements which
WP No. 51993 of 2015
are recorded before the Commission, the Commission justified
in imposing a penalty. Counsel, therefore, sought to justify the
order passed by the Commission.
The short point which arises for my consideration is:
Is the imposition of a penalty on the
The facts have been sufficiently stated and the same does
not require reiteration.
Suffice it to note that the petitioner being the Circle
Inspector received a telephone call from the second
respondent. A request was made by the second respondent to
register a case based on his complaint. It is seen from the
records that the petitioner being the Circle Inspector instructed
the Police Sub-Inspector - Mr.Rajendra Kumar on the very
same day and directed him to take necessary action.
The second respondent gave the complaint on
26.09.2010. Thereafter, the PSI Mr.Rajendra Kumar filed an
FIR in Cr.No.107/2010. It is pivotal to note that the
Investigating Officer conducted an investigation and filed a
charge sheet with the Addl. Civil Judge and JMFC,
WP No. 51993 of 2015
Doddaballapur. The Court conducted proceedings and the same
was ended in the order of acquittal of the accused
As things stood thus, for the best reasons known to the
second respondent, complained to the Karnataka Human Rights
Commission that there is a dereliction of duty by the petitioner.
It is further relevant to note that based on the complaint, the
Commission proceeded in the matter. In my opinion, the
giving of the complaint and the initiation of the proceedings by
the commission is unsustainable in law. law. The reason is quite
simple. Proceedings before the appropriate forum have been
concluded. It is pivotal to note that the order of acquittal was
passed by the court. If the second respondent had any
grievance or was not satisfied with the order of acquittal of
Mr.Lakshmikanth, the proper course would have been in a
different Forum altogether. Furthermore, even the finding of
the commission that the petitioner has not instructed the PSI in
writing is wholly incorrect and untenable. It is common sense
that the Circle Inspector is higher in ranking than the Police
Sub-Inspector. Based on a telephone call the petitioner has
WP No. 51993 of 2015
directed the official concerned i.e., PSI Mr.Rajendra Kumar to
act in accordance with the law.
It is needless to observe that legal action was set in
motion and the Court has passed the Judgment as per the law.
Therefore, in my opinion, there is no dereliction of duty as
alleged by the complainant. I may venture to say that the
commission has failed to have regard to relevant considerations
and disregarded relevant matters. In my considered opinion,
the imposition of penalty so far as the petitioner is concerned is
unsustainable in law. Hence, the same is liable to be set aside.
The result is that the Writ Petition will be allowed. This
court orders a writ of Certiorari. The order dated:20.06.2015
passed by the Human Rights Commission in
H.R.C.No.4860/2011(SB-1) vide Annexure-A imposing a
penalty of Rs.10,000/- (Rupees Ten Thousand only) in so far as
the petitioner is concerned is set-aside.
Resultantly, the Writ Petition is allowed.
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The Karnataka High Court has said initiation of proceedings by a complainant, post acquittal of the accused before the Karnataka State Human Right Commission, against a police officer who investigated the complaint and filed a chargesheet in the case is unsustainable in law.
A single judge bench of Justice Jyoti Mulimani made the observation while allowing a petition filed by police inspector Siddalingappa S T and quashed the order passed by the Commission dated 20.06.2015, imposing a penalty of Rs.10,000 on the charges of dereliction of duty.
The complainant K.A. Appanna had telephoned the petitioner on 26.09.2010 and informed him that on 19.09.2010 that while having food at the LVT Daba, he had a scuffle with a person named Mr.Lakshmikanth and 15 others concerning the payment of commission for purchasing land. He requested the petitioner to register a complaint.
The petitioner telephoned PSI Rajendra Kumar, and instructed him to take necessary action. Pursuant to which an FIR was filed for the alleged offences punishable under Sections 143, 147, 148, 342, 323, 324, 506(b), 327 read with Section 149 of IPC against Lakshmikanth and fifteen others. Thereafter, the PSI being the Investigating Officer, conducted the investigation and filed a charge sheet. Based on the charge sheet, the Court conducted proceedings and passed the Judgment acquitting the accused on 15.07.2013.
Following which the complainant approached the Commission, which forwarded the complaint to the Inspector General of Police for conducting an inquiry and to submit a report. Based on the report submitted by IGP, KHRC proved the charges only against Mr.Rajendra Kumar, PSI Doddaballapur. The Commission issued notice to him on 30.04.2012 to give a written reason for the report submitted by the Inspector General of Police.
He then submitted a written statement of reason justifying his actions. Subsequently, the Commission based on the complaint, report of IGP, KHRC, and a written statement of reason by Rajendra Kumar, vide order dated 20.06.2015 imposed a fine of Rs.10,000 not only on Rajendra Kumar’s PSI but also on the petitioner.
The petitioner contended that petitioner being the Circle Inspector has discharged his duties honestly and obediently. The moment the petitioner received a telephone call from the complainant – the second respondent, he properly instructed the PSI Mr.Rajendra Kumar to act in accordance with the law.
The bench on going through the records said “Proceedings before the appropriate forum have been concluded. It is pivotal to note that the order of acquittal was passed by the court. If the second respondent had any grievance or was not satisfied with the order of acquittal of Lakshmikanth, the proper course would have been in a different Forum altogether.”
It added “Even the finding of the commission that the petitioner has not instructed the PSI in writing is wholly incorrect and untenable.”
Following which it held “Legal action was set in motion and the court has passed the judgment as per the law. Therefore, in my opinion, there is no dereliction of duty as alleged by the complainant. The commission has failed to have regard to relevant considerations and disregarded relevant matters. In my considered opinion, the imposition of penalty so far as the petitioner is concerned is unsustainable in law. Hence, the same is liable to be set aside.”
Accordingly it allowed the petition.
Case Title: Siddalingappa S T And Karnataka State Human Rights Commission.
Case No: WRIT PETITION NO. 51993 OF 2015
Date of Order: 03-02-2023
Appearance: Advocate Sagar for Advocate Deepak J for petitioner.
Advocate Gopalkrishna Soodi for R1.
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and C.M.P. Nos.9919, 9922, 9925, 9937 and 9939 of 2021
1.The State of Tamil Nadu,
...Appellants in W.A.Nos.1573,1574 and 1577 of 2021
...Appellants in W.A.Nos.1574 and 1577 of 2021
Common Prayer: The Writ Appeal is filed under Clause 15 of Letters Patent
praying to set aside the common order dated 18.12.2020 passed in W.P.Nos.8916,
9555 and 9559 of 2019.
[Order of the Court was made by S.VAIDYANATHAN,J. and N.MALA,J.]
The issues raised in all the writ appeals are common. Therefore all the three
writ appeals are taken up together and disposed by this common order. The
individual facts of each case is dealt with separately as there are slight variations in
the service particulars of the respondent/writ petitioners.
2. Brief Facts in W.A. No. 1573 of 2021:
The respondent was appointed as secondary grade teacher on 07.12.1998 in the
second respondent school which is an aided elementary school governed by Tamil
Nadu Private School Regulation Act. The respondent was appointed against
sanctioned vacancy in view of the resignation of the earlier incumbent on
31.07.1997. The proposal for approval of the respondents appointment was
rejected by the District Elementary Educational officer, the 3rd appellant herein, on
the ground that the respondents appointment was in violation of G.O.Ms.No.559
dated 11.07.1995 which prohibited the appointment of higher qualified persons to
The respondent was appointed as a secondary grade teacher on 05.03.2001 in the
second respondent school which is an aided elementary school governed by Tamil
Nadu Private School Regulation Act. The respondent was appointed against the
sanctioned vacancy which arose in view of the resignation of the earlier incumbent
on 05.04.1998. Soon after the appointment of the respondent a proposal was sent
for approval of her appointment to the third appellant for approval. The proposal
was rejected by the 3rd Appellant on the ground that her appointment was in
violation of G.O.Ms.No.559 dated 11.07.1995 which prohibited the appointment
of higher qualified persons to the post of secondary grade teacher.
4. Brief Facts in W.A. No. 1577 of 2021:
The respondent was appointed as a secondary grade teacher on 25.11.1998 in the
second respondent school which is an aided elementary school governed by Tamil
Nadu Private School Regulation Act. The respondent was appointed against the
sanctioned vacancy which arose in view of the resignation of the earlier incumbent
on 03.10.1996. Soon after the appointment of the respondent a proposal was sent
for approval of her appointment to the third appellant. The proposal was rejected
by the 3rd appellant on the ground that her appointment was in violation of
G.O.Ms.No.559 dated 11.07.1995 which prohibited the appointment of higher
qualified persons to the post of secondary grade teacher.
5. The further facts apart from the above brief facts are as follows:
The Government of Tamil Nadu passed G.O.Ms.No.559 School Education
Department dated 11.07.1995 prohibiting the appointment of graduate teachers in
secondary grade vacancy. The schools in question appointed the respondents on
the dates mentioned supra, which was against G.O.Ms. 559 dated 11.07.1995. The
appellants therefore did not approve the appointment of the respondents. Teachers
who were affected by Go.Ms.No.559 dated 11.07.1995 approached the Hon'ble
Court in W.P. No. 6388 of 1993 and W.A Nos. 991 to 998 of 1998 and the Hon'ble
Division Bench by order dated 29.06.2001 upheld the validity of the said G.O with
a direction to approve the appointments made from 11.07.1995 to 19.05.1998.
Consequent to the judgment of this Hon'ble Court the Government passed
G.O.Ms.No.155 School Education Department dated 03.10.2002 with a direction
to approve the appointment up to 19.05.1998, subject to the completion of one
month Child Psychology Training by the said teachers. In pursuance to
G.O.Ms.No. 155 dated 03.10.2002 the teachers covered under the said G.O
underwent one month Child Psychology Training and on completion of the training
their appointments were approved in the regular time scale of pay in the year 2003.
6.The respondents and 19 similarly placed teachers who were not considered
for extension of benefits under G.O.Ms.No.155 dated 03.10.2002 on the ground
that their appointments were beyond the cut off date of 19.05.1998 through an
association which espoused their cause submitted a memorandum to the
Government seeking extension of benefit of G.O.Ms.No.155 dated 03.10.2002 in
respect of the teachers who were appointed upto the order of the Hon'ble Division
Bench Judgment dated 29.06.2001. The Government considered the memorandum
favourably and issued G.O.Ms.No.150 dated 02.07.2007 extending the benefits of
G.O.Ms.No.155 dated 03.10.2002 to the respondents and 19 similarly placed
teachers. In pursuance of G.O.Ms.No.150 of 02.07.2007 the Government approved
the appointments of the teachers covered under the said G.O. on completion of
Child Psychology Training vide proceeding dated 04.12.2007 with effect from
7.As G.O.Ms.No.155 dated 03.10.2002 not only covered the approval of the
secondary grade teachers with higher qualification but also contained certain
provisions which contemplated recovery of payments from the teachers the
aggrieved teachers filed several cases in W.A.Nos. 249, 282 and 448 to 452 of
2002 and 80 of 2004 and W.P.No. 42067 batch. The Hon'ble Division Bench vide
the Judgment dated 02.04.2004 reported in 2004(2) Law Weekly 591 while setting
aside a part of the Government order which directed the recovery from the teachers
held that the past services however shall be counted for pension. The said order of
the Hon'ble Division Bench was taken up by way of appeal to the Hon'ble Supreme
Court in Civil Appeal No. 5012 of 2006 and the same was dismissed. Meanwhile
the Government implemented the New Contributory Pension scheme for those who
joined Government service on or after 01.04.2003 vide G.O.Ms.No.430 dated
06.08.2004. The secondary grade teachers who were appointed between the period
from 11.07.1995 to 19.05.1998 and who were covered by G.O.Ms.No.155 dated
03.10.2002 filed writ petitions in W.P.Nos 26933 and 26934 of 2007, W.P. (MD)
Nos. 10447 and 5174 of 2008, 4537 of 2009, 1375 of 2010, 12280 to 12282 of
2010 before this Hon'ble Court praying for direction to count their past services
prior to completion of Child Psychology Training for the purpose of pensionary
benefits. This Hon'ble Court in the said writ petitions held that the petitioners
therein, were to be extended the pension scheme prevailing prior to 01.04.2003
and that they would not be covered by G.O.Ms.No.430 dated 06.08.2004. In
pursuance of the said orders of the Hon'ble Court, the Government issued
G.O.Ms.No.413 dated 04.11.2010 extending the Old Pension Scheme to the
secondary grade teachers appointed between 11.07.1995 to 19.05.1998 and whose
services were regularised as per G.O.Ms.No.155 dated 03.10.2002 while clarifying
that the New Pension Scheme in G.O.Ms.No.430 dated 06.08.2004 would not
apply to them.
8.It is the case of the respondents that they are similarly placed to the
teachers covered under G.O.Ms.No.155 dated 03.10.2002 and even the
Government had passed G.O.Ms.No.150 dated 02.07.2007 extending the benefit
of G.O.Ms.No.155 dated 03.10.2002 to the respondents and 19 others and as
much the respondents who were appointed as secondary grade teachers with effect
from 07.12.1998, 05.03.2001 and 25.11.1998 were entitled to the benefit of
counting of past services for pensionary benefits. In this regard the first respondent
in W.A. No. 1574 and W.A. No. 1577 earlier filed writ petitions in W.P.No. 30137
and 30143 of 2010 and the Hon'ble Court vide order dated 29.12.2010 directed the
appellants to consider the representation of the respondents and to pass
appropriate orders extending the Old Pension Scheme as directed in the order. The
respondents further relied on the Judgment of the Hon'ble Court passed in the case
of Shri. Jayapal and Shri. Sampasivam, wherein the Hon'ble Court allowed the
counting of past service from 26.02.1999 to 08.11.2007 for the purpose of
pensionary benefits on par with the secondary grade teachers who were appointed
prior to 01.04.2003. The Government preferred an appeal against the said order
which was dismissed on the ground of limitation. Thereafter on threat of contempt
G.O.Ms. 34 dated 15.02.2017 was passed extending the benefit of the Old Pension
Scheme to the said two persons only, even though similar orders were passed in
favour of the respondents also. The respondents therefore filed the present writ
petitions claiming benefit of G.O.Ms.No.34 dated 15.02.2017.
9.The appellants filed counter affidavit disputing the entitlement of the
respondents/writ petitioners to the relief claimed in the writ petition. According to
the appellants, as the approval of appointment of the respondents was issued on
09.11.2007 the respondents were not entitled to the benefit of Old Pension
Scheme. The appellants submitted that the counting of past service for the purpose
of pension would take effect from the date of approval of regular appointment and
not from the date of initial appointment. The appellants further relied on the
Judgement of this Hon'ble Court dated 08.02.2017 in W.P.(MD).No. 2356 of 2011
and order dated 21.03.2018 in W.P. No. 74 of 2015 and 957 of 2016 in support of
their case.
10.The learned Judge after hearing the arguments of the respective counsels
and on perusal of the records found favour with the respondents. The appellants
aggrieved by the order of the learned Single Judge have preferred the above appeal.
11.The factual narratives stated above are not denied. The pivotal issue
raised in the factual matrix of the case is whether the respondents are entitled for
pensionary benefits under the Old Pension Scheme or under the New Pension
Scheme notified in G.O.Ms.No. 430 dated 06.08.2004.
12.The learned Government Advocate submitted that as the respondents
appointments were approved only after the completion of the Child Psychology
Training programme, the date of appointment should be reckoned from the date of
the approval of the appointment dated 09.11.2007 and not from the date of initial
appointment which is 07.12.1998, 05.03.2001 and 25.11.1998. The learned
Government Advocate further submitted that the respondents would be covered by
G.O.Ms.No. 430 dated 06.08.2004 under which the New Pension Scheme was
introduced with effect from 01.04.2003. The learned Government Advocate
submitted that as the respondents appointments were approved after 01.04.2003
they would be covered by the New Pension Scheme which is Contributory Pension
Scheme and not under the Old Pension Scheme. The learned Government Advocate
relied on the Judgment of this Hon'ble Court in W.P.(MD). 2356 of 2011 dated
08.02.2017 and the W.A.No. 74 and 957 of 2016 dated 21.03.2018 in support of
his submissions.
13.Per contra, the counsel for the respondents submitted that the date for
determining the entitlement to the Old Pension Scheme would be the date of initial
appointment and not the date of approval of appointment as contended by the
appellants. The learned counsel further submitted that, in view of the orders passed
by this Hon'ble Court in their favour in W.P.No. 30137 of 2010 and 30143 of 2010
dated 29.12.2010, the appellants are bound to extend the benefit of Old Pension
Scheme to them. The respondents counsel further submitted that when similarly
placed Secondary Grade teachers were extended the benefit of the Old Pension
Scheme vide G.O.Ms.No. 34 dated 15.02.2017, the failure to extend the same
benefit to the respondents is discriminatory and violative of Article 14 and 21 of
the Constitution of India. The learned counsel for the respondents therefore prayed
that the writ appeal may be dismissed and the order of the learned Single Judge
may be affirmed.
14.We have heard the learned counsel for both sides and we have perused
the records.
15.The genesis of the issue relates back to the issuance of G.O.Ms. No.559
dated 11.07.1985, wherein the Government directed not to approve the
appointment of higher qualified persons to the post of Secondary Grade teachers.
The said Government order was challenged before this Hon'ble Court in W.A.Nos.
991 to 998 of 1998 and the Hon'ble Division Bench was pleased to uphold the G.O
with a direction to the Government to consider the approval of appointments made
between 11.07.1995 and 19.05.1998. In pursuance and in compliance of the above
said Division Bench order the appellants issued G.O.Ms.No. 155 dated 03.10.2002
giving permission for approval for B.T teachers who were appointed as Secondary
Grade teachers during the period from 11.07.1995 to 19.05.1998, subject to their
undergoing one month Child Psychology Training. The teachers covered under
G.O.Ms.No.155 dated 03.10.2002 on completion of Child Psychology Training
were granted approval of appointment with effect from 02.06.2003 in the regular
time scale of pay. The respondents as also 19 other secondary grade teachers who
were appointed subsequent to the cut off date of 19.05.1998 were not covered by
G.O.Ms.No. 155 dated 03.10.2002. A representation was given by the President of
Tamil Nadu recognised aided School Managers Association requesting for
extension of benefit of G.O.Ms. 155 dated 03.10.2002 to the teachers appointed till
the order of the Hon'ble Division Bench dated 29.06.2001. The Government
accepted the representation and issued G.O.Ms.No. 150 dated 02.07.2007
extending the benefits of G.O.Ms.No.155 dated 03.10.2002 to the 22 teachers who
were appointed subsequent to the cut off date of 19.05.1998 and before the order
of the Hon'ble Division Bench dated 29.06.2001. All the 22 teachers who were
covered by G.O.Ms.No.150 dated 02.07.2007 completed their Child Psychology
Training and thereafter their appointments were approved by the third appellant
vide proceeding dated 05.06.2008 with effect from 09.11.2007.
16.The secondary grade teachers who were covered under G.O.Ms.No. 155
dated 03.10.2002 challenged certain provisions of the said G.O in W.A.Nos. 249,
282, 448, 452 of 2002 and 80 of 2004 before this Hon'ble Court. The Hon'ble
Divison bench vide order dated 02.04.2004 was pleased to set aside para 7 of the
G.O which directed the recovery from the teachers. The G.O was confirmed with
respect to other aspects, except that the Government was directed to consider the
past service of the teachers for the purpose of pensionary benefits. After the
Judgement of the Hon'ble Division Bench, the Government passed G.O.Ms.No.430
dated 06.08.2004 introducing New Pension Scheme and the cut off date for New
Pension Scheme was given as 01.04.2003. The teachers covered under GO.Ms.No.
155 dated 03.10.2002 filed writ petitions before this Hon'ble Court praying for a
direction to count their past services prior to completion of Child Psychology
Training for pensionary benefits. This Hon'ble Court in the said writ petitions
ordered that the petitioners therein would be entitled to the pension scheme in force
prior to 01.04.2003 and that they would not be governed by G.O.Ms.No. 430
dated 06.08.2004. The Government passed G.O.Ms.Ms.413 dated 04.11.2010
implementing the above said order of the Hon'ble Court.
17.One Mr.Jayapal and Mr.Sampasivam, secondary grade teachers whose
appointments were approved on completion of training with effect from
09.11.2007 filed writ petitions in W.P.No.29163 and 29164 of 2010 seeking the
benefit of the Old Pension Scheme by counting their service from 26.02.1999 to
08.11.2000 (i.e) their date of appointment. This Hon'ble Court passed a common
order on 22.12.2010 ordering that they would be entitled to the pension scheme
applicable to teachers prior to 01.04.2003 and they would not be governed by
G.O.Ms.No.430 dated 06.08.2004. The appellants preferred an appeal before this
Hon'ble Court against the said order and the same was dismissed on the ground of
delay. Thereafter the appellants on threat of contempt passed G.O.Ms.No34 dated
15.02.2017 implementing the Old Pension Scheme to Mr.Jayapal and
18.The main ground on which the appellants sought to deny the
respondents, the relief claimed by them was that their appointments were approved
with effect from 09.11.2007 and therefore they would not be covered by the Old
Pension Scheme, but would be covered only, under the New Pension Scheme
introduced vide G.O.Ms.No.430 dated 06.08.2004. The appellants in this regard
relied on two Judgments of this Hon'ble Court in W.P.(MD).No. 2356 of 2011
dated 08.02.2017 and W.A.No. 74 of 2015 and 957 of 2016 dated 21.03.2018 in
support of their submissions.
19.We are not inclined to accept the submissions of the appellant. The
Hon'ble Division Bench of this Hon'ble Court in V.Vasanthi Vs. State of Tamil
Nadu 2019(4) CTC 865 held that the relevant date for claiming Old Pension
Scheme is the date of actual appointment and not the date of approval of
appointment. The relevant para from the Hon'ble Division Bench Judgment in
Vasanthi's case is extracted hereunder:
“A careful perusal of the above observation made in the said
Pallivasal Primary School case would show that even though
approval of the Appointment of the Teacher, who has
undergone Child Psychology Training, will take effect only
on completion of such training the past service rendered by
such Teacher i.e., service rendered before the completion of
such training, is bound to be counted for Pension. In other
words, the service period of such teacher commences from
the date of the Appointment and not from the date of
approval, even though the Monetary benefits start to accrue
only from the date of completion of the training. Therefore,
for all practical purposes, the date of Appointment is not
altered and remain to be the same. Therefore, the date of
Approval of Appointment of the Writ Petitioner cannot be
construed as the date relevant for considering the
applicability of the Pension Scheme and on the other hand, it
is the original date on which the Writ Petitioner got
appointed that matters for considering as to whether the Writ
Petitioner is governed under the Old Pension Scheme or not.
At this juncture, it is relevant to note that in G.O.Ms.No.259,
Finance (Pension) Department, dated 06.08.2003, a Proviso
to Rule 2 of the Tamil Nadu Pension Rule 1978, was
introduced by way of amendment, wherein and whereby, it is
contemplated that the Tamil Nadu Pension Rules, 1978 shall
not apply to Government Servants “appointed” on or after
1st April 2003 to services and posts. The word “appointed”
referred in the said Proviso cannot be construed to mean
approval of such Appointment.
Accordingly, the Writ Appeal is allowed and the Order of the
Writ Court is set aside. Consequently, the Writ Petition filed
by the Petitioner/Appellant is allowed and the Respondents
are directed to permit the Petitioner to continue under the
Old Pension Scheme, namely, Teacher Provident Fund
The said Judgment of the Hon'ble Division Bench squarely covers the issue raised
before us.
20.We are of the view that the Judgment relied on by the appellants are not
applicable to the facts of the present case. The Judgment passed in W.P.2356 of
2011 dated 08.02.2017 was by a learned Single Judge of this Hon'ble Court and
the same was also long prior to the Division Bench Judgment in Vasanthi's case. As
regards the other Judgment relied by the appellants dated 21.03.2018 we find that
the issue therein was with reference to disbursement of salary from the date of
original appointment and the Hon'ble Division Bench in the light of the explicit
condition contained in G.O.Ms.No.155 dated 03.10.2002 held that the
disbursement of salary from the date of original appointment order could not be
sustained as the G.O specifically stated that the salary would be paid from the date
of completion of training, after approving the said appointment. The Hon'ble
Division Bench Judgment is with reference to disbursement of salary and therefore
has no relevance to the present issue.
21.We are therefore of the view that the issue raised in this writ appeal is
covered by the Judgment of the Hon'ble Division Bench in V.Vasanthi's case. The
contention of the respondent that the relevant date would be the date of approval of
appointment cannot be countenanced and hence, the same stands rejected.
22.It is pertinent to note here that two of the respondents in W.A.No.1574
and 1577 earlier filed writ petitions in W.P.No. 30137 of 2010 and 30143 of 2010
wherein the learned Single Judge of this Hon'ble Court was pleased to pass the
“In view of the said submission, it is ordered that the
petitioners are to be extended the Pension Scheme applicable
to the Teachers appointed prior to 01.04.2003 and they are
not governed under G.O.Ms.No.430 Finance(Pension)
Department date 06.08.2004. If the pensionary contributions
if any, payable by the petitioners as per Tamil Nadu Pension
Rules 1978 are not paid till date by the petitioners, it is open
to the respondents to claim the same from the petitioners.
The writ petitions are ordered in the above terms.
Consequently, connected Miscellaneous Petitions are closed.
No costs.
In view of the same, the respondents 1 to 3 are directed to
consider the representation of the petitioner dated
24.12.2010 in the light of the above said paragraphs and
pass appropriate order extending the Pension Scheme not as
per G.O.Ms.No.430 Finance(Pension) Department dated
06.08.2004 but in terms of paragraph No.9 of the above said
order and such order shall be passed within a period of
eight weeks from the date of receipt of a copy of this order”
Inspite of the said orders, the appellants did not consider the respondents claim.
What is more appalling is that the second appellant in his proceedings dated
21.03.2016 recommended that the benefit of G.O.Ms.No.413 can be extended to
the 22 Secondary Grade teachers covered under G.O.Ms.No.150 dated 02.07.2007
inspite of such recommendation the appellants restricted G.O.Ms.No.34 dated
15.02.2017 to the said two persons thereby driving the respondents to this 2 nd
round of litigation.
In the light of the above facts we find absolutely no infirmity in the orders by
the learned Single Judge and hence the same is confirmed. In fine the Writ Appeals
are dismissed. Four months time is granted for the appellants to extend their
benefits to the writ petitioners, if not already extended.
PRE-DELIVERY JUDGMENT IN W.A.Nos. 1573, 1574 and 1577 of 2021
C.M.P. Nos.9919, 9922, 9925, 9937 and 9939 of 2021
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The Madras High Court recently observed that the relevant date while considering the pensionary benefits of Teachers would be the date on which the teacher entered into service and not the date on which the appointment was actually confirmed. Justice S. Vaidyanathan and Justice N Mala relied on the decision in V.Vasanthi v. State of Tamil Nadu wherein, on similar facts, the court had...
The Madras High Court recently observed that the relevant date while considering the pensionary benefits of Teachers would be the date on which the teacher entered into service and not the date on which the appointment was actually confirmed.
Justice S. Vaidyanathan and Justice N Mala relied on the decision in V.Vasanthi v. State of Tamil Nadu wherein, on similar facts, the court had held that the service period of teachers commences from the date of appointment and not from the date of approval, even though the monetary benefits start to accrue only from the date of completion of the training. Thus, the service rendered before the completion of training was also to be considered for pension.
In light of the order in Vasanthi's case, the court observed as under:
We are therefore of the view that the issue raised in this writ appeal is covered by the Judgment of the Hon'ble Division Bench in V.Vasanthi's case. The contention of the respondent that the relevant date would be the date of approval of appointment cannot be countenanced and hence, the same stands rejected.
Background
The Government of Tamil Nadu passed G.O.Ms.No.559 School Education Department dated 11.07.1995 prohibiting the appointment of graduate teachers in secondary grade vacancy. Some schools appointed the respondents in violation of this GO. These appointments were not confirmed by the appellants. The teachers who were affected approached the High Court where the High Court confirmed the validity of the G.O and also directed to approve the appointments made from 11.07.1995 to 19.05.1998.
Pursuant to the order, the Government issued G.O Ms.No. 155 dated 03.10.2002 giving permission for approval for B.T teachers who were appointed as Secondary Grade teachers during the period from 11.07.1995 to 19.05.1998, subject to their undergoing one month Child Psychology Training. These teachers were granted approval of appointment after they completed their one month training.
While so, the President of Tamil Nadu recognised aided School Managers Association made a representation requesting for extending the benefit of G.O.Ms. 155 dated 03.10.2002 to the teachers appointed till the order of the High Court. The government accepted the representation and issued G.O.Ms.No. 150 extending the benefits of earlier GO to 22 teachers who were appointed subsequent to the cut off date and before the order of the High Court.
The teachers covered under the G.O Ms,. 155 challenged certain provision of the GO with respect to recovery from the teachers before the High Court and the same was allowed. A single bench directed the government to consider the past service of the teachers for the purpose of pensionary benefits. As per the judgement of the court, the Government passed G.O.Ms.No.430 dated 06.08.2004 introducing New Pension Scheme and the cut off date for New Pension Scheme was given as 01.04.2003
The teachers covered under the GO Ms. No. 155 filed writ petitions praying for a direction to count their past services prior to completion of Child Psychology Training for pensionary benefits. The court ordered in favour of the teachers and the Government passed G.O.Ms.Ms.413 implementing the order of the court.
Two other teachers, whose appointments were approved on completion of training in 09.11.2007 also approached court seeking benefits of old pension scheme. The court passed a common order on 22.12.2010 ordering that they would be entitled to the pension scheme applicable to teachers prior to 01.04.2003 and they would not be governed by G.O.Ms.No.430 dated 06.08.2004.
The main ground on which the appellants herein were denying the challenge was that their appointments were approved with effect from 09.11.2007 and therefore they would not be covered by the Old Pension Scheme, but would be covered only, under the New Pension Scheme introduced vide G.O.Ms.No.430 dated 06.08.2004.
The court was however not inclined to accept this submission. Finding no infirmity in the order of the single judge, the court confirmed the same and directed the appellant Government to extend the benefits to the respondents within four months time.
Case Title: The State of Tamil Nadu and others v. R Chitradevi and others
Case No: W.A.Nos. 1573, 1574 and 1577 of 2021
Counsel for the Appellants: Mr.Abishek Murthy Government Advocate
Counsel for the Respondents: Mr.S.N.Ravichandran (R1)
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5& vkosnd ds fo}ku vf/koDrkx.k dk dFku gS fd vkosnd ch0 vkj0 Mh0 esfMdy
dkyst] xksj[kiqj esa ysDpjj ds in ij dk;Zjr gSA fn0 10@11 vxLr] 2017 dks ch0 vkj0
Mh0 esfMdy dkyst] xksj[kiqj esa vpkud fyfDoM vkDlhtu dh lIykbZ ckf/kr gq;h] ftlds
dkj.k cgqr ls cPpksa dh e`R;q gks x;h] ml fnu vkosnd vodk’k ij Fkk] fdUrq ,d MkDVj
gksus ds ukrs mlus vkDlhtu flysUMj dh O;oLFkk vius [kpsZ ij izkbosV fd;k rFkk 3&4 lkS
cPpksa dh tku mlus cpkbZ] rFkk og izkbosV lIyk;lZ ,oa izkbosV gkfLiVy ds laidZ essa jgkA
blds ckotwn Hkh mls fn0 22&8&2017 dks fuyafcr dj fn;k x;k rFkk fpfdRlk f’k{kk ,oa
izf’k{k.k] m0 iz0] y[kum }kjk Fkkuk dksrokyh gtjrxat] ftyk y[kum es mlds ,oa vU;
vf/kdkfj;ksa ds fo:) fn0 23&8&2017 dks izkFkfedh ntZ djk nh x;hA vkosnd ds fo:)
vkDlhtu dh deh ds laca/k esa dksbZ fo’oluh; lk{; ugha FkkA blds ckn vkosnd dks fn0
2&9&2017 dks fxjQ~rkj dj fy;k x;k] vkosnd dks fn0 12&9&2017 dks vkjksi i= feyk]
vkosnd dbZ ekg dkjkxkj esa fu:) jgk rFkk tekur ij eqDr gksus ds ckn vkosnd foHkkxh;
tkWp djus okys lacaf/kr vf/kdkjh ds ikl yxk, x, vkjksiksa dh tkudkjh djus x;k] blds
ckn vkosnd us fuyacu vkns’k ds f[kykQ mPp U;k;ky; vk;k rFkk ekuuh; mPpre
U;k;ky; Hkh x;k ,oa bl e/; dksfoM&19 dk nkSj Hkh vk x;k] ftlds ckn mlus /kkjk 482
6& vkosnd ds fo}ku vf/koDrkx.k us rdZ izLrqr fd;k fd /kkjk 196 na0iz0la0 dh
mi/kkjk 1 (v) esa ;g izkfo/kkfur gS fd U;k;ky; dks /kkjk 153&v] 153&c] 505 (2) Hkk0na0fo0
esa vijk/k dk laKku ysus ds iwoZ fdlh O;fDr ds vfHk;kstu gsrq dsUnz ljdkj vFkok jkT;
ljdkj vFkok ftykf/kdkjh }kjk iwoZ vfHk;kstu Lohd`fr ysuk vko’;d gS] ,slh iwoZ
Lohd`fr@vuqefr ds fcuk lEcfU/kr vijk/kksa ds vfHk;kstu gsrq laKku ugha fy;k tk ldrk gS
rFkk fcuk iwoZ vfHk;kstu Lohd`fr ds laKku ysus ds vkns’k dks voS/kkfud ekuk tk,xkA mudk
dFku gS fd /kkjk 196 ,oa 196&, na0iz0la0 ds izkfo/kku vkKkid (ck/;dkjh) izd`fr ds gSaA
iz’uxr okn esa eq[; U;kf;d eftLVzsV] vyhx<+ }kjk ikfjr iz’uxr vkns’k fn0 28&7&2020]
ftlds }kjk vkjksi i= dks ntZ jftLVj djrs gq, vijk/k /kkjk 153&v] 153&c] 505 (2) ,oa
109 Hkk0na0fo0 ds vUrxZr laKku fy;k x;k ,oa vkosnd dks rych vkns’k }kjk vkgwr fd;k
x;k rFkk ;g laKku ysus ,oa rych vkns’k ikfjr djus ds iwoZ dsUnz ljdkj vFkok jkT;
ljdkj vFkok ftykf/kdkjh ls dksbZ Lohd`fr ugha yh x;hA bl laca/k esa mudh vksj ls lacaf/kr
U;k;ky; ds le{k Application For Information (Chapter IX Rule 1F) izLrqr fd;k
x;k Fkk vkSj mlesa iz’u iwNk x;k Fkk fd D;k okn la0 3250 lu 2020 esa vfHk;kstu }kjk
vkjksi i= nkf[ky djus ls iwoZ dsUnz ljdkj ;k jkT; ljdkj ;k ftykf/kdkjh] vyhx<+ ls
/kkjk 196 na0iz0la0 ds vUrxZr (Sanction) Lohd`fr fy;k x;k gS] ftl ij tokc “NO”
fn;k x;k gSA vr% iwoZ vfHk;kstu Lohd`fr ds vHkko esa ,oa eq[; U;kf;d eftLVzsV] vyhx<+ ds
U;k;ky; esa yfEcr mijksDr laiw.kZ dk;Zokgh ,oa laKku ds laca/k esa ikfjr iz’uxr vkns’k
7& vkosnd ds fo}ku vf/koDrk us vius rdZ ds leFkZu esa eku~uh; mPpre
U;k;ky; }kjk Manoj Rai Vs. State of Madhya Pradesh 1999 (1) SCC 728 esa
izfrikfnr fof/k O;oLFkk ds izLrj 2 dh vksj U;k;ky; dk /;ku vkd`"V fd;k] tks fuEuor~
“2. Since the learned counsel for the State fairly states, on
instructions, that no sanction was given in accordance with
Section 196(1) of the Criminal Procedure Code to prosecute the
appellants for the offence under Section 295-A of the Indian Penal
Code, we allow this appeal and quash the impugned proceedings.
Let the written instructions received by the learned counsel for the
respondent-State in this regard be kept on record as desired by
him.”
8& bl lEcU/k essa vkosnd ds fo}ku vf/koDrkx.k us mPp U;k;ky;] bykgkckn
dh };&U;k;ihB }kjk Mohd. Waris @ Raza Vs. State, Jail Appeal No. 8326 of
2007 decided on 5.8.2019 ds izLrj 33] 34] 35] 36 ,oa 37 dh vksj U;k;ky; dk /;ku
“33. A perusal of Section 196 Cr.P.C., clearly shows that it
contemplates a prior sanction from Central Government or State
Government before cognizance is taken of any offence punishable
under Chapter-VI I.P.C. Therefore, apparently, it cannot be
disputed and learned AGA has also fairly stated that as per
requirement of Section 196 Cr.P.C., no cognizance could have
been taken of offence punishable under Chapter-VI I.P.C. unless
prior sanction from Central Government or State Government is
obtained.
34. In the present case, opportunity was granted to State to show
whether such sanction was given of categorical statement has
been made by learned AGA before this Court that no such
sanction was granted or even sought to be obtained, hence,
question of grant by competent authority does not arise.
Prosecution, in fact, strangely proceeded in complete and
absolute ignorance of Section 196 Cr.P.C. It is really surprising
that prosecution was not aware that for offences punishable under
Chapter-VI I.P.C., there was/is a statutory requirement of
obtaining prior sanction of Competent Authority. No efforts at all
were made to obtain the same.
35. Proceeding further now we have to examine, “whether
requirement of ‘prior sanction’ under Section 196 Cr.P.C. is
mandatory” and secondly, if no such issue was raised before
Magistrate, who committed proceedings to Court of
Sessions/Trial Court, whether it will stop appellants from raising
issue for the first time in appeal, or flaw is so inherent it goes to
the root of the matter and even in appeal, it can be taken for the
first time and may vitiates Trial and conviction.
36. The object of Section 196 Cr.P.C. is to ensure prosecution
after due consideration by appropriate authority so that frivolous
or needless prosecution is avoided. To appreciate the nature of
“sanction” contemplated under Section 196 Cr.P.C., in correct
perspective, it would be appropriate to bear in mind and examine
465. Finding or sentence when reversible by reason of
error, omission irregularity.
(1) Subject to the provisions hereinbefore contained, no
finding, sentence or order passed by a Court of competent
jurisdiction shall be reversed or altered by a Court of
appeal, confirmation or revision on account of any error,
omission or irregularity in the complaint, summons,
warrant, proclamation, order, judgment or other
proceedings before or during trial or in any inquiry or
other proceedings under this Code, or any error, or
irregularity in any sanction for the prosecution, unless in
the opinion of that Court, a failure of justice has in fact
been occasioned thereby.
(2) In determining whether any error, omission or
irregularity in any proceeding under this Code, or any
error, or irregularity in any sanction for the prosecution
has occasioned a failure of justice, the Court shall have
regard to the fact whether the objection could and should
have been raised at an earlier stage in the proceedings.
37. A perusal of Section 465 Cr.P.C. shows that it runs into two
parts; (i) “on any error, omission or irregularity”, and three
words have been used and it is said that the same will not justify
setting aside of conviction in appeal or revision etc. but with
reference to “sanction” only two words “error or irregularity”
have been used and the word “omission” has not been mentioned.
Meaning thereby, in the cases where sanction is required, if there
is an error or irregularity in the “sanction”, then conviction or
finding will not be reversed in appeal or revision. It contemplates
that sanction is there but there is some error or irregularity in
granting sanction. If there is a complete “omission” of sanction,
then in our view, Section 465 Cr.P.C. will not come into picture
and will not help prosecution. It, therefore, leads to irrestible
inference that if there is no sanction, whatsoever, by competent
authority as contemplated in Section 196 Cr.P.C., it will be a
serious flaw and an illegality and would vitiate the entire
proceedings.”
9& vkosnd ds fo}ku vf/koDrk us U;k;ky; dk /;ku Swaraj Thackeray Vs. State
of Madhya Pradesh esa izfrikfnr fof/k O;oLFkkvksa dh vksj Hkh U;k;ky; dk /;ku vkd`"V
fd;k] ftuesa voj U;k;ky; ds le{k yfEcr okn dh dk;Zokgh dks vikLr djrs gq,] izdj.k
dks 196 na0iz0la0 dk vuqikyu djus ds i’pkr xq.k&nks"k ij izlaKku dk vkns’k ikfjr djus
Swaraj Thackeray Vs. State of Jharkhand & Ors. 2008 CRI. L. J.
3780 esa ikfjr fu.kZ; dk izLrj 14 ,oa 15 fuEuor gS %&
“14. Regarding the points raised by the petitioner that
prior sanction under Section 196, CrPC was must before taking
cognizance of the offences under Sections 153-A and 153-B IPC, I
find that from a bare perusal of Section 196(1)(a) and (1-A)(a),
quoted herein above, it is absolutely clear that there is complete
bar for taking cognizance of the offences punishable under
Sections 153-A, 153-B, Section 295-A or Sub-sections (1), (2) and
(3) of Section 505,IPC.
In the present case, the cognizance of the offences under
Sections 153-A, 153-B and 504 IPC has been taken by the learned
Magistrate. There is no dispute of the fact that prior to taking
cognizance of the offences alleged under Sections 153-A and 153-
B IPC, no sanction either of the Central Government or of the
State Government was taken. The decision cited by the counsel
for the petitioner in the case of Shailbhadra Shah and Ors. v.
Swami Krishna Bharati and Anr. of Gujarat High Court reported
in 1981 Cr LJ 113, supports his contention that prior sanction
either of the State Government or of the Central Government is
necessary before taking cognizance of the offences under Sections
153-A and 153-B of the Indian Penal Code. Therefore, in such a
situation, it is held that the learned Magistrate had no jurisdiction
to take cognizance of the offences under Sections 153-A and 153-
B of the Indian Penal Code against the petitioner in absence of
any sanction as envisaged under Section 196(1)(a)(1-A)(a) CrPC.
Consequently, that part of the impugned order taking cognizance
for the aforesaid two offences, i.e., under Sections 153-A and 153-
B, IPC only by the learned Magistrate cannot be sustained and,
as such, is hereby quashed.
15. So far as for taking cognizance of the offence under Section
504 IPC, taken by the learned Magistrate, there is no such legal
bar for taking cognizance of the aforesaid Section 504 IPC, and I
find that the learned Magistrate after full application of mind and
on consideration of the materials on record has taken cognizance
of the offences under Section 504 IPC also and, therefore, the
same does not require any interference by this Court.”
Sarfaraz Sheikh Vs. The State of Madhya Pradesh esa ikfjr fu.kZ; dk
“The offence under sections 153-A and 153-B IPC are of
the nature of promoting enmity between different groups on the
ground of religion, race, place of birth, residence, language, caste
or community or any other ground whatsoever, disharmony or
feelings of enmity etc; or any act which is imputation, assertions
No.174/2017 (Sarfaraz Sheikh vs. The State of M.P.) prejudicial to
national-integration in place of public worship the maintenance
of harmony between different religious, racial, language or
regional groups or castes or communities and as such are offence
against the public at large and State. The inclusion of offence
under sections 147and 149 of IPC, in the charge-sheet, in fact,
are in conjunction with such offence under section 153 A and 153
B IPC are inseparable. Consequently, for want of sanction for
offence under sections 153 A and 153 B of IPC as on the date of
cognizance on 05.03.2016, the prosecution continued pursuant to
the impugned order cannot be sustained. It is accordingly
quashed. However, based on subsequent sanction on 16.08.2016,
the respondent/State is always at liberty to take recourse to law
for filing supplementary charge-sheet.”
10& fo}ku vij egkf/koDrk Jh euh"k xks;y ,oa fo}ku vij 'kkldh; vf/koDrk Jh
ikratfy feJ us vkosnd ds fo}ku vf/koDrkx.k ds rdksZ dk [k.Mu djrs gq, rdZ izLrqr
fd;k fd vkosnd ,d ljdkjh MkDVj gSa blfy, /kkjk 197 na0iz0la0 ds izkfo/kku Hkh ykxw gksrs
gSa] rFkk /kkjk 482 na0iz0la0 ds vUrxZr vkosnu i= izLrqr djds vfHk;kstu vuqefr ds vk/kkj
ij lEiw.kZ dk;Zokgh ds fujLrhdj.k dh ;kpuk iks"k.kh; ugha gSA vkosnd }kjk laKku ds Lrj
ij ;k vkjksi fojfpr gksus ds volj ij vfHk;kstu vuqefr u gksus ds vk/kkj ij
mUekspu ;kpuk dk iw.kZ vf/kdkj gSA mudk ;g Hkh dFku gS fd /kkjk 196 ,oa 197 na0iz0la0
ds izkfo/kku dksVZ }kjk izlaKku ysus ds lUnHkZ esa yxHkx leku gSa] ,sls esa fo/kkf;dk dh ea’kk ds
vuq:i izkfo/kku 197 Hkh ykxw gksaxs rFkk vkosnd ds izdj.k esa /kkjk 196] 197 na0iz0la0 ds
izkfo/kkuksa dks la;qDr :i ls i<+us dh vko’;drk gS rFkk laKku ysus ds ckn vfHk;kstu
vuqefr izkIr gksus ls lEiw.kZ dk;Zokgh nwf"kr ugha gks tk,xh rFkk bl izdj.k esa fn0
27&5&2021 dks vuqefr ysus ds i’pkr mls voj U;k;ky; esa fn0 3&8&2021 dks nkf[ky
dj fn;k x;k gSA mudk ;g Hkh dFku gS fd /kkjk 460 (C) esa mfYyf[kr izkfo/kku fdlh
vijk/k dk laKku vxj /kkjk 190 (1) es Dykt (A) ;k (B) ds rgr eftLVzsV }kjk ys fy;k
x;k gS rks og flQZ bjjsxqyj gksxh vkSj izkslhfMax dks nwf"kr ugha djsxhA izLrqr izdj.k esa
iqfyl fjiksVZ esa /kkjk 190 (1) B esa eftLVzsV }kjk fn0 28&7&2020 dks izlaKku fy;k x;k
gS] ,slh fLFkfr esa lacaf/kr eftLVzsV }kjk ikfjr fd;k x;k laKku dk vkns’k fcYdqy lgh gS
rFkk mlesa gLr{ksi djus dh dksbZ vko’;drk ugha gSA mUgksaus vius rdZ ds leFkZu esa eku~uh;
mPpre U;k;ky; }kjk Bakhshish Singh Brar Vs. Gurmej Kumar and another
(1987) 4 Supreme Court Cases 663 esa izfrikfnr fof/k O;oLFkk ds izLrj 4 dh vksj
“4. There are rival versions involved in this case. The question was
whether without the sanction under section 197 of the Code of
Criminal Procedure the proceedings could go on. It is quite apparent
that as a result of the alleged search and raid, which was conducted
by the petitioner in discharge of his official duties certain injuries,
which are described as grievous, injuries had been inflicted on the
complainant and one of the alleged offenders had died. In this case,
admittedly, the petitioner is a Government servant. Admittedly, there
was no sanction under section 197 of the Cr. P.C. had been taken. The
trial in this case is one of the offences mentioned under section 196 of
the Cr. P.C. The contention of the petitioner was that under section
196 of the Cr. P.C. the cognizance of the offence could not be taken
nor the trial proceeded without the sanction of the appropriate
authorities. The learned Additional Sessions Judge, Kapurthala after
consideration of the facts and circumstances of the case in view of the
observations of this Court in Pukhraj v. State of Rajasthan and
another, [1974] 1 S.C.R. S59 that unless cognizance is taken and the
facts and in the circumstances and the nature of the allegations
involved in this case are gone into the question whether the raiding
party exceeded its limits or power while acting in the official duties
cannot be determined. The learned Judge observed after gathering
the materials and some evidence, it would be possible to determine
whether the petitioner while acting in the discharge of his duties as a
police officer had exceeded the limit of his official capacity in
inflicting grievous injuries on the accused and causing death to the
other accused.”
esjs fopkj ls mDr fu.kZ; esa /kkjk 196 na0iz0la0 ,oa /kkjk 197 na0iz0la0 dks ,d lkFk
fopkfjr fd;k x;k gS rFkk orZeku ekeys esa flQZ /kkjk 196 na0iz0la0 fopkfjr fd;k tk jgk
gS] blfy, mDr fu.kZ; esas mfYyf[kr rF;] orZeku izdj.k ls fHkUu gSaA
11& fo}ku vij egkf/koDrk us vius rdZ ds leFkZu esa eku~uh; mPpre U;k;ky; }kjk
CBI Vs. B.A.Srinivasan (2020) 2 Supreme Court Cases 153 esa izfrikfnr fof/k
O;oLFkk dh vksj U;k;ky; dk /;ku vkd`"V fd;kA fdUrq ;g fu.kZ; /kkjk 197 na0iz0la0 ds
gS] tcfd orZeku ekeys esa flQZ /kkjk 196 na0iz0la0 fopkfjr fd;k
tk jgk gS] blfy, mDr fu.kZ; esas mfYyf[kr rF;] orZeku izdj.k esa ykxw ugha gksaxsA
12& fo}ku vij egkf/koDrk us vius rdZ ds leFkZu esa eku~uh; mPpre U;k;ky; }kjk
Dharmesh @ Nanu Nitinbhai Shah Vs. State of Gujarat (2022) 45 ACC 519 esa
izfrikfnr fof/k O;oLFkk dh vksj U;k;ky; dk /;ku vkd`"V fd;kA fdUrq mDr fu.kZ; ds rF;
13& fo}ku vij egkf/koDrk us vius rdZ ds leFkZu esa eku~uh; mPpre U;k;ky; }kjk
Devinder Singh and others Vs. State of Punjab Through CBI (2016) 12 SCC
87 esa izfrikfnr fof/k O;oLFkk ds izLrj 39.8 dh vksj U;k;ky; dk /;ku vkd`"V fd;k] tks
“39.8. Question of sanction may arise at any stage of proceedings.
On a police or judicial inquiry or in course of evidence during
trial. Whether sanction is necessary or not may have to be
determined from stage to stage and material brought on record
depending upon facts of each case. Question of sanction can be
considered at any stage of the proceedings. Necessity for sanction
may reveal itself in the course of the progress of the case and it
would be open to accused to place material during the course of
trial for showing what his duty was. Accused has the right to lead
evidence in support of his case on merits.”
fdUrq mDr fu.kZ; ds rF; orZeku izdj.k ds rF;ksa ls fHkUu gSa] blfy, mDr fu.kZ;
14& eSaus mHk; i{k ds fo}ku vf/koDrkvksa ds rdksZ ds ifjizs{; esa i=koyh ij miyC/k lk{;
,oa muds }kjk] ekuuh; mPpre U;k;ky; ,oa mPp U;k;ky;ksa }kjk ikfjr fu.kZ;ksa ,oa fof/k
15& bl izdj.k ds fuLrkj.k gsrq /kkjk 196 dks vorfjr fd;k tkuk vko’;d gS] tks
“196. Prosecution for offences against the State and for criminal
conspiracy to commit such offence.
(a) any offence punishable under Chapter VI or under
section 153A, ( Section 295 A or sub section (1) of section
(b) a criminal conspiracy to commit such offence, or
(c) any such abetment, as is described in section 108A of
the Indian Penal Code (45 of 1860 ), except with the
previous sanction of the Central Government or of the
(a) any offence punishable under section 153B or sub-
section (2) or sub- section (3) of section 505 of the Indian
(b) a criminal conspiracy to commit such offence, except
with the previous sanction of the Central Government or
of the State Government or of the District Magistrate.]
(2) No Court shall take cognizance of the offence of any
criminal conspiracy punishable under section 120B of the
Indian Penal code (45 of 1860 ), other than a criminal
conspiracy to commit [an offence] punishable with death,
imprisonment for life or rigorous imprisonment for a term
of two years or upwards, unless the State Government or
the District Magistrate has consented in writing to the
Provided that where the criminal conspiracy is one to
which the provisions of section 195 apply, no such consent
shall be necessary.
(3) The Central Government or the State Government
may, before according sanction [ under sub- section (1) or
sub- section (1A) and the District Magistrate may, before
according sanction under sub- section (1A) and the State
Government or the District Magistrate may, before giving
consent under sub- section (2), order a preliminary
investigation by a police officer not being below the rank
of Inspector, in which case such police officer shall have
the powers referred to in sub-section (3) of section 155.”
16& esjs fopkj ls vkosnd ds fo}ku vf/koDrkx.k ds rdksa ,oa muds }kjk vius rdZ ds
leFkZu esa Swaraj Thackeray Vs. State of Jharkhand & Ors. 2008 CRI. L. J.
3780 & Sarfaraz Sheikh Vs. The State of Madhya Pradesh esa izfrikfnr fof/k
O;oLFkkvks ds izdk’k esa ,oa /kkjk 196 na0iz0la0 dh mi/kkjk 1 (v) ds izkfo/kkuksa ds vuqlkj
/kkjk 153&v] 153&c] 505 (2) Hkk0na0fo0 esa vijk/k dk laKku ysus ds iwoZ dsUnz ljdkj vFkok
jkT; ljdkj vFkok ftykf/kdkjh }kjk iwoZ vfHk;kstu Lohd`fr ugha yh x;h gS rFkk fo}ku
eftLVzsV us izlaKku dk vkns’k ikfjr djrs le; lqlaxr izkfo/kkuksa dk leqfpr vuqikyu ugha
17& rn~uqlkj lacaf/kr voj U;k;ky; dh dk;Zokgh esa T;knk foyEc u gks] blfy, /kkjk
482 na0iz0la0 ds vUrxZr nk;j ;g vkosnu i= Lohdkj fd;k tkrk gS rFkk eq0v0la0&700
lu~ 2019] vUrxZr /kkjk 153&,] 153&ch] 505 (2)] 109 Hkk0na0fo0] Fkkuk flfoy ykbUl] ftyk
vyhx<++ esa izsf"kr vkjksi i= la0 055 lu 2020] fnukafdr 16&3&2020 ls mn~Hkwr okn la0
3250 lu 2020] LVsV olsZl Mk0 dQhy] tks eq[; U;kf;d eftLVzsV] vyhx<+ ds U;k;ky; esa
yfEcr gS rFkk blesa ikfjr izlaKku vkns’k fn0 28&7&2020 dh laiw.kZ dk;Zokgh vikLr dh
tkrh gS rFkk izdj.k dks eq[; U;kf;d eftLVzsV] vyhx<+ ds U;k;ky; esa bl funsZ’k ds lkFk
izfrizsf"kr fd;k tkrk gS fd /kkjk 196 (v) na0iz0la0 ds izkfo/kkuksa ds vuqlkj dsUnz ljdkj
vFkok jkT; ljdkj vFkok ftykf/kdkjh }kjk iwoZ vfHk;kstu Lohd`fr izkIr gksus ij gh vkosnd
ds fo:) mijksDr /kkjkvksa ds vUrxZr izlaKku dk vkns’k ikfjr fd;k tk;A
18& dk;kZy; dks funsZ’k fn;k tkrk gS fd bl vkns’k dh ,d izfrfyfi lacaf/kr voj
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In a huge relief to Dr. Kafeel Khan, the Allahabad High Court today quashed the entire criminal proceedings arising out of an FIR & pending against him over his speech given about CAA and NRC at a protest meeting at Aligarh Muslim University in December 2019. The Bench of Justice Gautam Chaudhary has quashed the entire criminal proceedings, which was initiated pursuant to his...
In a huge relief to Dr. Kafeel Khan, the Allahabad High Court today quashed the entire criminal proceedings arising out of an FIR & pending against him over his speech given about CAA and NRC at a protest meeting at Aligarh Muslim University in December 2019.
The Bench of Justice Gautam Chaudhary has quashed the entire criminal proceedings, which was initiated pursuant to his alleged provocative speech. Also, the cognizance order of the Chief Judicial Magistrate, Aligarh has also been set aside.
In this very matter, National Security Act was also invoked by the UP government against Dr. Khan. However, last year the Allahabad High Court quashed the detention of Dr.Khan under NSA observing that his speech was actually a call for national integration.
The case in brief
A First Information Report was registered against Dr. Khan and subsequently he was arrested for a speech he delivered at the Aligarh Muslim University on 12 December 2019.
The FIR under Section 153A of the Indian Penal Code (promoting enmity between different groups on grounds of religion) against him stated that his speech had "disrupted the harmony between the communities", and that it was "also likely to create a law and order situation".
Later on, Sections 153B (imputations, assertions prejudicial to national integration) and 505(2) (statements creating or promoting enmity, hatred or ill will between classes) were also added to the FIR
Thereafter, a charge sheet was filed against him in the court of Chief Judicial Magistrate, Aligarh, in March 2020.
The Court took cognizance of the charge sheet and had summoned him to face the trial in the case. Aggrieved with the same, Dr. Khan had moved High Court with his Section 482 CrPC plea seeking quashing of the criminal proceedings and the cognizance order.
Arguments put forth
The plea primarily argued that prior permission of the government was not taken before the filing of a charge sheet against him.
It was argued that as per Section 196 CrPC, before taking cognizance of the offense under section 153-A, 153-B, 505(2) of the IPC, the Central Government or the State Government or the District Magistrate has to give their prior prosecution sanction for the prosecution, and such prior sanction was not taken in the present case.
Therefore, it was submitted that since such prior sanction/permission was not taken in the instant case against Dr. Kafeel, the cognizance order as well as the criminal proceedings were liable to be quashed/set aside.
[NOTE: Section 196 Cr.P.C., contemplates a prior sanction from Central Government or State Government before cognizance is taken of any offence punishable under Chapter-VI I.P.C.
Therefore, as per the requirement of Section 196 Cr.P.C., no cognizance could have been taken of offence punishable under Chapter-VI I.P.C. unless prior sanction from Central Government or State Government is obtained.
The object of Section 196 Cr.P.C. is to ensure prosecution after due consideration by the appropriate authority so that frivolous or needless prosecution is avoided.
Importantly, as per Section 196(1)(a) and (1-A)(a), there is a complete bar for taking cognizance of the offences punishable under Sections 153-A, 153-B, Section 295-A or Sub-sections (1), (2), and (3) of Section 505, IPC.]
Court's observations
At the outset, the court referred to the Jharkhand High Court's ruling in the cases of Swaraj Thackeray Vs. State of Jharkhand & Ors. 2008 CRI. L. J. 3780 & Madhya Pradesh High Court's ruling in the case of Sarfaraz Sheikh Vs. The State of Madhya Pradesh and observed thus:
"…Before taking cognizance of the offense under IPC, prior prosecution sanction has not been taken by the Central Government or the State Government or the District Magistrate and the learned Magistrate did not properly comply with the relevant provisions while passing the order of cognizance."
Accordingly, the Court allowed the application filed under section 482 CrPC and the entire proceedings in case against Dr. Kafeel under section 153-A, 153-B, 505(2), 109 IPC, which is pending in the court of Chief Judicial Magistrate, Aligarh, and the Cognizance Order were set aside/quashed.
The Court has also remanded the matter back to the court of Chief Judicial Magistrate, Aligarh with the direction that as per the provisions of section 196 (A) Cr.P.C., the cognizance of the against Dr. Kafeel under the said sections be taken only after obtaining prior sanction of prosecution by the Central Government or the State Government or the District Magistrate.
Advocate Rajrshi Gupta, Dileep Kumar (Senior Adv.), Advocate Manish Singh & Nazrul Islam Jafri(Senior Adv.) appeared for Dr. Kafeel Khan.
Case title - Dr. Kafeel @ Dr. Kafeel Ahmad Khan v. State of U.P. and Another
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Ms. Sangeeta Salvi for the Applicant in MCA No.284/2022 & for the
Respondent in MCA No.191/2022.
Mr. Akshay Kapadia for the Respondent in MCA No.284/2022 & for
the Applicant in MCA No.191/2022.
1. Heard learned Advocate for the Applicant-wife in Miscellaneous
Application No.191 of 2022 and learned Advocate for the applicant-
husband in Miscellaneous Civil Application 284 of 2022.
2. These are two transfer Applications. Misc. Civil Application
No.191 of 2022 is filed by the wife for transfer of Restitution Petition
filed by the husband before the Family Court, Pune and she wants
transfer of the same to the Court of Civil Judge, Senior Division,
Thane. Before the Thane Court her Petition for divorce is pending.
Whereas the husband is praying for transfer of Divorce Petition filed
by the wife to the Family Court at Pune wherein his Restitution
Petition is pending.
3. Both spouses have not filed replies to transfer Application filed
by each of them. They submitted that averments in their respective
applications is sufficient. So by consent both these Applications are
heard on the basis of averments made in their individual Applications.
4. After hearing both learned Advocates, one thing is clear and
that is both the Petitions needs to be tried together by one and the
same Court. The reason is if both the petitions are tried by separate
Court, there may be possibility of conflicting orders and it may lead to
problems in execution. It is also for the reason that it will be in best
interest of the parties considering the witnesses to be examined by
both of them in each of these Petitions. So in view of the above,
question is whether the Thane Court is the appropriate forum or
whether it is Pune Court which is the appropriate forum ?
5. Learned Advocate for husband invited my attention to the
provision of section 21A of the Hindu Marriage Act. She has also read
that provision. It contemplates transfer of Petitions consisting various
reliefs mentioned therein. So far as present two Petitions are
concerned, one of relief sought in one Petition is for divorce. Whereas
the husband is seeking for restitution. Admittedly, the prayer in
restitution is not mentioned under provision of section 21A of Hindu
Marriage Act. So both these Petitions needs to be decided as per
section 24 of the Code of Civil Procedure.
6. In support of the prayer for transfer, learned Advocate for the
wife invited my attention to various grounds mentioned in para No.28
of her Transfer Petition. It consists of her financial condition, atrocities
alleged to be committed on her by the husband, danger to her life.
Whereas all these allegations are denied by the husband through his
Advocate by way of arguments.
7. Whereas the learned Advocate for the husband invited my
attention to averments in para no.5 and various sub-clauses of para 5.
It is submitted that two children born out of said wedlock are residing
at present with their father. Both are school going children. They are
being taken care by mother, Kaki (aunt) and cousin sister of the
husband. There is also emphasis on distance in between Pune to
Thane. The husband has also shown readiness to reimburse travelling
expenses to the wife. It is also emphasized that the wife is also
required to travel from Navi Mumbai to Thane for attending the Court
at Pune. There is also emphasis that after both spouses started
residing separately from 25th July 2021. Initially, wife stayed at her
husband’s house at Satara and now she claims that she is residing at
Kopar Khairane, Navi Mumbai. It is also submitted that the wife
claims that she is unemployed and being housewife it is not
convenient for her to attend the Family Court at Pune ??????????.
The order dated 20th April 2022 passed by this Court in Misc.Civil
Application No.79 of 2022 is relied upon on behalf of the husband.
In that matter this Court was pleased to reject transfer request made
by the wife and on the other hand directed the husband to pay certain
sum of money towards travelling allowance.
8. By way of reply, it is submitted that the observation in that
order are factual observations. It is submitted that the Application for
grant of interim alimony filed by wife and also custody Petitions are
pending before the Thane Court.
It is true that the allegations and counter allegations made by
both spouses against each other cannot be looked into by this Court
for deciding this Transfer Application except for limited purpose. If
wife comes with a grievance that during cohabitation she was being
ill-treated to great extent and on that background if there is danger to
her life to visit the place where husband is residing certainly it can be
considered as a ground for transfer. In this case, to certain extent, this
ground is taken by the Applicant-wife. At the same time it is true that
she is not coming with the case that she has approached any authority
so far as danger to her life is concerned.
9. When this Court has considered the grounds for transfer taken
by both spouses, after balancing them this Court feels that the Petition
for restitution filed by the husband at Pune needs to be transferred to
the Court of Civil Judge, Senior Division, Thane. It may be true that
the husband has shown his bonafides to pay traveling cost. It may be
true that at present he is having custody of both children and certainly
being father he is required to look after them. At the same time he
has said that his mother, aunt and his sister, are taking care. It may be
true that the husband is undertaking the painting contract and as such
he is required to devote some time towards that.
10. Even though this reason may be of some importance, the fact
that the Applicant in Miscellaneous Civil Application No.171 of 2022
is a lady, her inconvenience needs to be given more priority because
the law considers woman as class belonging to weaker section of
society and needs more protection. Except grounds taken by the
husband as stated above, there are no other special grounds to say
that the Applicant-wife is having more financial means to take her
care and also having all means of transport at her disposal to attend
the Pune Court, the request by the husband cannot be accepted.
Hence this Court is inclined to allow Transfer Application by wife and
inclined to reject the Transfer Application of the husband. The
observations made by this Court in above referred order are factual
observations. Hence it is not useful to husband. In view of that the
following order is passed :
(i) Transfer Application No.284 of 2022 filed by the Applicant-
husband is rejected.
(ii) Transfer Application No.191 of 2022 filed by the Applicant-wife
is allowed.
(iii) The proceedings being Petition No.A.2202 of 2021 pending
before the Family Court, Pune is transferred to the Court of Civil
Judge, Senior Division at Thane for inquiry and disposal as
per law.
(iv) It is submitted that the Petition at Thane is fixed on 17th
September 2022 and in view of that the Applicant-
husband is directed to attend the Court at Thane on 17th
September 2022 without any further notice.
(v) The Civil Judge, Senior Division, Thane is directed to try
both the proceedings together and dispose it as per law.
10. At this stage learned Advocate for the Applicant-husband prays
for stay for a period of six weeks. It is opposed on behalf of learned
Advocate for the wife. The stay is granted for a period of six weeks to
the present order.
11. Till that time the parties are at liberty to mutually decide about
interim relief by interacting with each other through respective
counsel or other marriage counsellors.
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The Bombay High Court last week transferred a matrimonial case observing that law considers women as belonging to weaker section of society and her inconvenience needs to be prioritized. The court observed,"Even though this reason may be of some importance, the fact that the Applicant in Miscellaneous Civil Application No.171 of 2022 is a lady, her inconvenience needs to be...
The Bombay High Court last week transferred a matrimonial case observing that law considers women as belonging to weaker section of society and her inconvenience needs to be prioritized.
The court observed,
"Even though this reason may be of some importance, the fact that the Applicant in Miscellaneous Civil Application No.171 of 2022 is a lady, her inconvenience needs to be given more priority because the law considers woman as class belonging to weaker section of society and needs more protection."
Justice S. M. Modak was dealing with two rival transfer applications filed by a husband and wife in a matrimonial case.
The husband prayed for transfer of wife's divorce petition to Pune Family Court from Thane Civil Court. The wife wanted the transfer of husband's application for restitution of conjugal rights to Thane Civil Court from Pune Family Court.
The court observed that both petitions must be tried together by the same court to avoid the possibility of conflicting orders.
Court noted that section 21A of the Hindu Marriage Act contemplates transfer of divorce petitions but does not mention restitution petitions. Hence, transfer of both the petitions needs to be decided as per section 24 of the CPC.
The wife submitted that her financial condition due to unemployment, atrocities committed on her by the husband, and danger to her life as her grounds for requesting transfer.
The husband, denying allegations of any atrocity, submitted that their two school going children are residing with him and being cared for by his family. He submitted that he is willing to reimburse travel expenses to his wife.
Both parties emphasised the inconvenience of travel due to distance between Thane and Pune.
The court noted that allegations and counter allegations made by both spouses against each other can only be looked into for a limited purpose for deciding the transfer applications.
Court noted that wife's claim of danger to her life on the basis of mistreatment during cohabitation can be ground for transfer. "If wife comes with a grievance that during cohabitation she was being ill-treated to great extent and on that background if there is danger to her life to visit the place where husband is residing certainly it can be considered as a ground for transfer." The court also noted that the wife has not approached any authority so far as danger to her life is concerned.
The court noted that while the husband has the custody of their children, admittedly his mother, aunt and his sister take care of them since he is busy with has business contracts.
After considering the submissions of both spouses the court decided to grant relief to the wife stating that the lady's inconvenience needs to be prioritized as women belong to weaker sections of society and need more protection.
The court observed that the husband had not raised any "special grounds" to say that the wife has financial means and means of transport at her disposal to attend the Pune Court.
The court allowed wife's transfer application and rejected husband's transfer application. The court transferred husband's restitution petition to the Thane Civil Court.
Case no: Misc. Civil Application no. 284 of 2022
Case Title: Rahul Uttam Phadtare v. Sarika Rahul Phadtare
Coram: Justice S. K. Modak
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2.1 While passing the impugned order the learned
Commercial Court has stated that as per Section 19 of the
Micro, Small and Medium Enterprises Development Act, 2006
pre-deosit of 75% of the award is required. It was the
contention of the petitioner inter-alia that as per the
judgments of the Apex Court, pre-deposit could be made in
3. The facts to be stated shortly are that the arbitration
proceedings took place between the petitioner – M/s Yamuna
Cable Accessories Pvt. Ltd. and the respondent – Desai
Enterprises which culminated into award of the sole arbitrator
dated 07.02.2020. The petitioner was directed under the said
award to pay the respondent an amount of Rs. 3,46,07,118.31
paisa with interest at 12% from the date of award till its
realization. It appears that thereafter the respondent also filed
an application under Section 33 of the Arbitration and
Conciliation Act, 1996 before the Arbitrator for passing an
additional award. The Arbitrator directed the petitioner to pay
additional Rs. 1,50,000/- with interest from 07.02.2020 till its
3.1 Against the said award, the petitioner preferred
application under Section 34(2)(iv) of the Arbitration and
Conciliation Act, 1996 being Commercial Court Application
(CMA) No. 1 of 2021 before the District Court, Halol
(Panchmahal). It was in the said proceedings that the order
impugned in this petition dated 29.03.2022 came to be
4. On 13.04.2022, this Court, while issuing notice for final
disposal, passed the following order.
“Learned advocate Mr.S.P.Majmudar
assails the impugned order dated
29.3.2022 by learned Additional District
Judge, Panchmahal, Halod whereby the
application of the petitioner to grant
time to pay 75% of the awarded amount as
required under Section 19 of the Micro,
Small and Medium Enterprises Development
Act, 2006 is refused, by relying on the
decision of the Supreme Court in
Intech Rubbers Private Limited and
Another] [(2012) 6 SCC 345] as also
[(2022) 1 SCC 61] to submit that the
Supreme Court in those cases interpreted
the words “in the manner directed by
such court” to hold that in a given set
of circumstances, the court may not
compel the appellant to pay the deposit
of 75% at one go but may consider grant
of installment to pay the same.
2. Notice for final disposal, returnable
on 4.5.2022.
3. Learned advocate for the petitioner
states that in order to show the
bonafides, the petitioner shall deposit
with this court amount of Rs.30,00,000/-
(Thirty Lakhs) towards 75% amount, on or
before the returnable date.
4. On condition of compliance of the
above statement and the deposit being
made, there shall be stay of the
proceedings of the Commercial Court
Application No.1 of 2021 to operate till
5. Direct service is permitted.”
4.1 It was stated that as per the direction in Para: 3 of the
above order Rs.30,00,000/- has already been deposited by the
petitioner with the registry of this Court.
4.2 Today when the petition comes up for consideration,
learned advocate for the petitioner submitted an undertaking
dated 04.05.2022 affirmed on oath by one Momin Rupdeen
Khan who is stated to be authorized signatory of the petitioner
company having address at M026, Block B7, Ashiana Navrang,
Halol Panchmahal, in which the following is undertaken:
“I state that present petitioner has
already deposited the amount of Rs.
30,00,000/- before this Hon’ble Court
on 02.05.2022, as per order dated
13.04.2022. I state that petitioner
undertakes to deposit the balance
amount of Rs. 2,50,96,654/- on or
before 29.09.2022.
4.3 The aforesaid undertaking is taken on record.
5. Since in the above undertaking the petitioner has agreed
to deposit the balance amount of Rs. 2,50,96,654/- on or
before 29.09.2022, learned advocate for the respondent has
no objection to the said deposit. He stated on instruction of the
respondent that if the petitioner abides by the said
undertaking of deposit, nothing would survive in the petition.
He requested the Court to accordingly dispose of the petition.
5.1 In view of the above undertaking of the petitioner given
on oath and to which the respondent having concurred as per
the statement made by respondent’s learned advocate, the
challenge in this petition does not survive. However, the
petitioner shall abide by the undertaking and shall deposit the
balance amount as above before 29.09.2022 as committed by
him in the undertaking.
5.2 The petition stands disposed of in view of the above
deposit and undertaking. The Court below shall proceed with
the application under Section 34 filed by the petitioner
expeditiously to decide the same on merits.
6. The registry shall transmit the amount to the Court
concerned, which is the 75% of the amount, which is required
to be made under Section 19 of the Micro, Small and Medium
7. Disposed of in the above terms.
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The Gujarat High Court recently permitted a party in appeal under the Micro, Small and Medium Enterprises Development Act, 2006 to make a pre-deposit to Court in terms of Section 19 of the Act, i.e., 75% of the amount awarded, in installments.
The Petitioner herein was aggrieved by an order of Additional District Judge, whereby its application for extension of time to deposit the 75% of the award amount was rejected.
A Bench comprising Justice NV Anjaria and Justice Samir Dave noted that the Petitioner in this case, M/S Yamuna Cable Accessories Pvt Ltd, had already deposited Rs. 30 lakh and undertook to deposit the remainder Rs. 2,50,96,654/- on or before 29th September. The award is of Rs. 3,46,07,118.31.
The Bench directed the Appellant to abide by its undertaking and accordingly, allowed the petition.
The brief facts of the case were that arbitration proceedings took place between the Petitioner and the Respondent which culminated into an award by the sole arbitrator where the Petitioner was directed to pay the amount of INR 3,46,07,118.31 to the Respondent along with 12% interest. The Respondent, subsequently, filed an application under Section 33 of the Arbitration Act for an additional award of INR 1,50,000 to be paid by the Petitioner as interest till its realisation. Consequently, the Petitioner challenged the award under Section 34(2)(IV) of the Arbitration Act and the impugned order rejected the application of the Petitioner.
The Petitioner contested that basis the opinion of the Supreme Court, the pre-deposit could be submitted in installments.
The High Court, while issuing notice for the final order had noted that basis the provisions of Section 19 of MSMED Act and the decision of the Supreme Court in Goodyear India Limited Vs. Norton Intech Rubbers Private Limited and Another, it cannot compel the Petitioner to pay the deposit of 75% in one go and may permit installments.
To show bonafides, the Petitioner had deposited INR 30 lakhs towards the 75% amount. The authorised signatory of the Petitioner company also undertook that having paid INR 30 lakhs, the Petitioner would deposit the balance amount of INR 2,50,96,654, as well.
Accordingly, the High Court direct that the Petitioner deposit the amount by 29.09.22 as committed by the Petitioner in the undertaking. The Court also directed the court below to proceed with the application under Section 34 expeditiously and decide the same on merits.
Case Title: YAMUNA CABLES ACCESSORIES PVT. LTD. v/s DESAI ENTERPRISE
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Civil Appeal Nos.
392 95 of 1988.
Appeal under Section 130E(b) of the Central Excise and Salt Act, 1944 from the order dated 15.12.1986 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal Nos.
C/2130 to 2132/86 C & 1027/83 and order No. 757 760/86.
B. Datta, ASG, Mrs. Indira Sawhney and P. Parmeshwaran for the Petitioners.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
These appeals under Section 643 130E(b) of the (hereinafter called the Act) are against the order dated 15th December, 1986 passed by the Customs, Excise and Gold (Control, Appellate Tribunal (hereinafter called CEGAT).
These appeals are related to a dispute regarding the duty of custom imposed on the respondent.
The department had levied duty on the product known as 'Sancticizer 429 ' imported by the respondent.
The respondent had contested this duty and filed a claim for the refund.
The Assistant Collector of Customs rejected this claim.
The Assistant Collector on test found it to be organic compound (easter type) inform of colourless viscose liquid and as per 7.0.046m should be considered as polymeric plasticizer.
The Appellate Collector found that Chapter 38 of the was residuary in nature.
According to him, if the item was not covered by any other chapter of the then it would fall under Chapter 38.
The Appellate Collector further found that linear polysters were covered by CCCN 39.01(E).
The Appellate Collector held that the impugned goods are formed by the condensation of diabasic acid within dihydric alcohols and were similar to the poly condensation product of terphthalic acid or Adipic acid with ethanediel covered by above mentioned CCCN headings.
The Appellate Collector held this CCCN headings corresponds to 39.01/06 of the .
The Appellate Collector upheld the decision of the Assistant Collector.
The respondent challenged the aforesaid order of the Appellate Collector before the Tribunal.
The Tribunal allowed the appeals relying on the two decisions of the Tribunal one being Bhor Industries Ltd. vs Collector of Customs, Bombay, and the other Collector of Customs, Bombay vs Bhor Industries Ltd. and another, The Tribunal was of the view that the product was classifiable under the heading 38.01/19(6) of the .
The decision of the Tribunal was later on followed by the subsequent decision referred to hereinbefore.
In Bhor Industries Ltd. vs Collector of Customs, Bombay (supra), the Tribunal observed that these are ordinarily liquids and, in rare instances, solids, as simple high boiling solvents for the polymers.
These are neither resins nor do they seem to be plastic materials; on the other hand, these are added to resins to impart better flexibility or plastic properties to them.
It was further observed that there was no evidence had been produced before the Tribunal to show that Sancticizer was a resin or plastic material as defined in Explanatory Notes to C.C.C.N.
It was neither similar to resols or polysiobutylene to attract the mischief of Note 2(c) to Chapter 39 nor a separately defined Chemical Compound so as to fall within Chapters 28 or 29 of 644 .
Hence, it was classifiable not under Heading 39.01/06 as it stood before its amendment in 1978 but under 38.01/19(6) of as "plasticizer, not elsewhere specified".
The Tribunal in its decision considered the technical leaflet on the product.
Sancticizer 429 was described as a medium high molecular polyester plasticizer made from a glycol reacted with a dibasic acid.
Among the properties claimed for the product are good low temperature flexibility, excellent electrical properties, outstanding migration resistance, humidity, stability and resistance to oil and solvant extraction.
It is said to be an excellent plasticizer for making oil resistant high temperature PVC wire and cable compounds.
It is also stated to be useful for plasticizing ethyl cellulose, mitrocellulose, acrylic caulking compunds, and adhesive systems based upon polyvinyl accetate, styrene butadiene, and acrylic latices.
Reference was also made to Kirk othmer 's "Encyclopaedia of Chemical Technology" 3rd edition page 111, where it was observed as follows: "A plasticizer is incorporated in a material to increase its workability, flexibility, or distensibility.
Addition of a plasticizer may lower the melt viscosity, the second order transition temperature, or the elastic modulus of the plastic.
For effectiveness with polymeric materials, a plasticizer needs to be initially mixed with the polymer either by dissolution of the resin in the plasticizer or the plasticizer in the resin, by heat or dissolving both in a common solvent and subsequent evaporation of the solvent.
In "Plastics materials" (4th edition, page 80), J.A. Brydson refers to plasticizers ordinarily liquids and in rare instances solids as simply high boiling solvents for the polymer.
The action is explained by saying that plasticizer molecules insert themselves between polymer molecules reducing but not eliminating polymer polymer contacts and generating additional free volume; also as some interaction between polymers and plasticizers off setting the spacing effect; or both.
" The Tribunal came to the conclusion that plasticizers were not resins; these are added to resins to impart better flexibility or plastic properties to the latter.
Nor did they seem to be plastic materials by themselves.
The Tribunal found that Sancticizer 429 which is admitedly a plasticizer would, therefore, not have fallen for classification 645 under Heading No. 39.01/06 of the Customs Tariff Schedule as it stood prior to its amendment in 1978.
The said reasoning was reiterated by the Tribunal in the decision of Collector of Customs, Bombay vs Bhor Industries Ltd. and another.
There, the Tribunal observed that as per various technical authorities, plasticizers are not resins.
Rather, these are added to resins to impart better flexibility or plastic properties to them.
These are not plastic materials by themselves either.
Further, goods under reference are not similar to resols or polysiobutylenes.
Therefore, their classification under Heading 30.01/106 of the , prior to and even after its amendment in 1978, should not be applicable.
Furthermore, not being separately defined chemical compounds, these would also not fall within Chapter 28 or 29 of the Act.
Since these are not specified elsewhere, their appropriate classification would be under Heading No. 39.01/19(6) as "Plasticizers, not elsewhere specified".
It is well settled in these matters how a good is known in the trade and treated in the trade literature is relevant and significant and often decisive factor.
In that view of the matter, the Tribunal was right in the view it took.
These appeals fail and are accordingly dismissed.
N.V.K. Appeals dismissed.
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The respondents who imported 'Sancticizer 429 ', contested the levy of duty by the Department and filed a claim for refund, which was rejected by the Assistant Collector on the ground, that on ted the product was found to be organic compound (easter type) of colourless viscose liquid and as per 7.0.046 should be considered a polymeric plasticizer.
On appeal, the Appellate Collector came to the conclusion that Chapter 38 of the was residuary in nature and that if the item was not covered by any other Chapter of the Tariff Act only then it would fall under the said Chapter.
He also found that linear polysters were covered by CCCN 39.01(E) and that the goods in question are formed by the condensation of diabasic acid within dihydric alcohols and were similar to the polycondensation products of terphthalic acid or adipic acid with ethanediel covered by the aforesaid CCCN headings, which corresponds to 39.01/06 of the .
The Appellate Collector upheld the decision of the Assistant Collector.
The respondent appealed to the Customs Excise and Gold Control Appellate Tribunal which allowed the appeals taking the view that plasticizers were not resins, but are added to resins to impart better flexibility of plastic properties to the latter, that 'Sancticizer 429 ' is admittedly a plasticizer and would therefore not have fallen for classification under Heading No. 39.01/06 of the Customs Tariff Schedule as it stood before amendment in 1978 and that the product was classifiable 642 under heading 38.01/19(6) of the Tariff Act.
Dismissing the Appeals of the Revenue, this Court, ^ HELD: 1.
As per various technical authorities, plasticizers are not resins.
These are added to resins to impart better flexibility or plastic properties to them.
These are not plastic materials by themselves either.
[644H] 2.
The goods under reference in the instant case, are not similar to resols or polysiobutylenes.
Their classification under Heading 39.01/06 of the , prior to and even after its amendment in 1978, should not be applicable.
Not being separately defined chemical compounds, these would also not fall within Chapter 28 or 29 of the Act.
Since these are not specified elsewhere their appropriate classification would be under Heading No. 38.01/19(6) as "Plasticizers, not elsewhere specified".
[645C] 3.
In these matters how a good is known in the trade and treated in the trade literature is relevant and significant and often decisive factor.
[645D] "Encyclopaedia of Chemical Technology" 3rd Edition page 111 referred to.
Bhor Industries Ltd. vs Collector of Customs, Bombay, and Collector of Customs, Bombay vs Bhor Industries Ltd. and another, approved.
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tion (Criminal) No. 307 of 1988.
(Under Article 32 of the Constitution of India) Ram Jethmalani, U.R. Lalit, Ms. Kamini Jaiswal and Arvind Nigam for the Petitioner.
T.U. Mehta, Dushiant Dave, M.N. Shroff and Mrs. section Dikshit for the Respondents.
The Judgment of the Court was delivered by RAY, J.
The petitioner who is the brother of detenu, Adbul Latif Abdul Wahab Sheikh of Ahmedabad has challenged in this writ petition the order of detention dated May 23, 1988 passed by the respondent No. 1, the Commissioner of Police, Ahmedabad City, Gujarat issued under Section 3(2) of the Gujarat Prevention of AntiSocial Activities Act, 1985 and served on the detenu while the detenu was in custody at Sabarmati Central Prison under a judicial order of remand made by the Designated Court, Ahmedabad in respect of C.R. No. 40 of 1987, on the grounds inter alia that there has been absolute non application of mind on the part of the detaining authority 895 in clamping the order of detention and also on other grounds.
In order to decide the various contentions raised in this writ petition, it is necessary to consider the back ground as well as the various orders of detention passed against the detenu by the detaining authority, the respond ent No. 1.
On September 11, 1984, the detenu was served with a show cause notice under Section 59 of the Bombay Police Act, 1951 calling upon him to show cause as to why he should not be externed from the limits of Ahmedabad City Police Commissioner 's jurisdiction and its surrounding areas as also from the rural areas of Gandhinagar, Kheda and Mehsana District limits for the activities of February, 1983.
In 1985 the detenu was arrested for alleged offences under Sections 307, 143, 147, 148, 149 and 324 of Indian Penal Code in C.R. No. 37 of 1985.
On February 14, 1985 the detenu was granted bail in the said case by the Sessions Court, Ahmedabad.
On March 18, 1985 communal riots broke out in Ahmedabad city and on March 24, 1985 an order of detention under the National Security Act was passed against the detenu by the respondent No. 1.
During the communal riots one Police Sub Inspector, Mr. Rana was killed in Kalupur P.S.F.I.R. was lodged against the detenu and six other accused on May 9, 1985.
In the FIR the detenu was named as accused No. 2.
On July 6, 1985 charge sheet was submitted in C.R. No. 37 of 1985.
On September 27, 1985 enquiry was completed in externment proceedings and arguments were heard.
On November 12, 1985, the detenu surrendered to police and he was arrested and taken into custody.
In the said case accused Nos. 6 and 7 were discharged, the detenu along with accused No. 4 was tried in the said charge by the Principal Judge, Sessions Court who by his Judgment dated May, 26, 1986 acquitted the detenu and the co accused after recording of the evidence of witnesses and considering the same.
The detenu was, however, enlarged on bail by the Magistrate in the said case vide his order dated June 23, 1986 as no case was made out against the detenu under Sec tion 307 I.P.C. and the offence, if any, was only under Section 324 I.P.C.
The detenu was released from jail on June 23, 1986 and immediately as he came out, an order of deten tion under the Prevention of Anti Social Activities Act (PASA) was served on the detenu there and then and he Was once again taken into custody.
It is relevant to mention in this connection that on January 18, 1986 the order of ex ternment of the detenu from Ahmedabad City and rural areas of Gandhinagar etc. was made while he was in custody.
The detenu preferred an appeal against the externment order which was heard by the Deputy Secretary (Home).
The State Government confirmed the order of externment on June 23, 1986.
On August 7, 1986, 896 the State Government revoked the order of detention dated June 23, 1986 on the ground that no Advisory Board was constituted.
On the same day, however, the State Government passed the second order of detention under PASA and the same was served on the detenu on the same day.
The detenu filed a Special Criminal Application No. 862 of 1986 challenging the externment order dated January 18, 1986 and its confirmation order dated June 23, 1986 before the High Court of Gujarat.
The detenu also filed another Special Criminal Application No. 889 of 1986 before the High Court challenging the second order of detention dated August 7, 1986.
The Special Crimi nal Application No. 889 of 1986 was dismissed by the High Court on October 21, 1986.
Against this judgment the detenu filed a Special Leave Petition (Crl.) No. 3762 of 1986 before this Court and the said Petition was finally heard in part on January 23, 1987 and it was adjourned to February 3, 1987.
This Court released the detenu on parole only on January 23, 1987 for the reason that the detenu was required to be in Ahmedabad because the Corporation elections were to take place on January 25, 1987.
Unfortunately, the mother of the detenu expired on January 23, 1987, but in spite of the order of parole made by this Court, the State Government permitted the detenu to attend his mother 's funeral by granting him parole for only four hours and after the funer al, the detenu was again taken into custody.
Thereafter, the detenu was released on parole on January 24, 1987.
The elections for the Corporation were held on January 25, 1987 and the detenu was declared elected from all the wards from which he had contested.
On February 3, 1987, the appeal of the detenu was heard finally by this Court and this Court extended the parole granted to him till the judgment was delivered in the case.
However, on February 3, 1987 in spite of the orders of parole, the detenu was kept in custody and was released only on the next day i.e. February 4, 1987.
This Court by its judgment dated February 9, 1987 quashed the detention order and directed the respondents to set the detenu at liberty forthwith.
The detenu in terms of his earlier bail orders was required to be present before Kalupur P.S. every morning at 11 a.m. and he continued to do so from February 9 to Febru ary 14, 1987.
On February 14, 1987 when the detenu reported at Kalupur P.S. along with his Advocate to record his presence, he was asked to wait there.
At about 12.30 p.m., he was informed that he was taken into custody for breach of orders of externment dated January 18, 1986.
The FIR against this case was registered and the detenu was produced before the Metropolitan Magistrate at about 1.30 p.m.
The Metropol itan Magistrate 897 granted bail to the detenu.
At that time the detenu received the news that disturbances had broken out in the city of Ahmedabad and, therefore, he declined to avail of the bail order and requested the Magistrate to take him into custody.
On February 15, 1987, the order of detention under Section 8(a) of the National Security Act was passed against the detenu by the Commissioner of Police, Ahmedabad City.
The detenu was served with the order which was confirmed by the State Government on February 18, 1987.
This order of deten tion was challenged by the detenu by a writ petition under Section 32 of the Constitution of India before this Court being Writ Petition (Crl.) No. 246 of 1987.
This Court issued rule returnable on April 4, 1987.
Pending disposal of the writ petition, the detenu was released on April 3, 1987 by the AdviSory Board constituted under the National Securi ty Act.
Furthermore, to harass the detenu two FIRs being C.R. Nos. 34 and 40 of 1987 were lodged against the detenu in Kalupur P.S.
On June 22, 1987 the detenu on receiving notices of two meetings, one of the General Body and the other of Suez Refugee Committee of the Ahmedabad Municipal Corporation to be held on June 26 and June 23, 1987 respec tively, made an application to the Home Secretary, Govern ment of Gujarat seeking permission to visit Ahmedabad for one month.
As no reply was received by the detenu, the detenu moved Crl.
Petition No. 1345 of 1987 before the High Court for permission to visit Ahmedabad.
the aforesaid Miscellaneous applications were rejected by the High Court.
Thereafter, the detenu filed Special Leave Petition (Crl.) No. 1952 of 1987 before this Court against the impugned order of externment of the detenu for a period of two years with effect from January 18, 1986.
Notice was issued on the said petition but as the period of externment expired, the said petition was finally disposed of by this Court.
On October 16, 1987, the detenu was arrested by the police for an alleged offence committed by the detenu in respect of the incident of February 14, 1987 i.e. breach of externment order dated January 18, 1986.
The detenu applied for bail to the Designated Court, Ahmedabad but the bail application was rejected vide order dated November 24, 1987.
The detenu filed an appeal before this Court under Section 16 of the Terrorist and Disruptive Activities (Prevention) Act, 1985.
This appeal being Criminal Appeal No. 316 of 1988 was dis posed of by this Court on April 27, 1988 setting aside the impugned order of the Designated Court rejecting application for bail and remitting the case to the Designated Court for a decision afresh.
The Designated Court was also directed to enlarge the applicant on bail on such terms as it deems fit pending disposal of the application 898 for bail on merits.
The respondents being afraid that this Court may allow the said Criminal Appeal No. 3 16 of 1987 made another order of detention on January 25, 1988 and served the order on the detenu on the same day.
This deten tion order was made under Section 3 of the Gujarat Preven tion of Anti Social Activities Act, 1985.
This order of detention was challenged by Criminal Writ Petition No. 114 of 1988 before this Court.
Rule was issued and the petition was heard on merits.
The detention order was withdrawn as the Advisory Board refused to confirm the order of deten tion.
The detenu was released on March 14, 1988.
The detenu accordingly went home.
However, when Criminal Appeal No. 316 of 1988 came up for hearing before this Court on April 7, 1988 an allegation was made that detenu had absconded.
This Court however, ordered on April 7, 1988 that the detenu should surrender within a week.
In compliance of the said order the detenu surrendered on April 13, 1988 and on May 23, 1988 the order of detention was made as stated hereinbe fore.
It has been stated in the writ petition that in the grounds of detention in support of the present order of detention dated May 23, 1988, no act on the part of the detenu is alleged between March 14, 1988 and April 13, 1988.
It has also been stated that it was the only period of less than a month during which the detenu was a free man.
After April 13, 1988 the detenu has been continuously in custody and prior to March 14, 1988 also the detenu was continuously in custody for nearly three years save for short periods during which he was released on parole by this Court.
No prejudicial act has been alleged against the detenu during the days when the detenu was out on parole.
It has been further stated that no prejudicial activity of any kind is alleged against the detenu after March 14, 1988 being the date on which the earlier order of detention stood revoked by virtue of the Advisory Board 's decision.
The action of respondents is plainly vindictive in total defiance of law and disgraceful blot on any civilised admin istration of justice.
It has also been stated that there has been no application of mind at all to the most glaring fact that the Designated Court in defiance of this Court 's order did not grant interim bail to the detenu by its order dated May 13, 1988.
There was no possibility therefore, of the detenu being released on bail.
It is impossible to justify the statement made in the grounds of detention that there are full possibilities that the detenu may be released on bail in this case.
This statement, it has been stated is recklessly false.
It has also been stated that the entire material which forms the basis of the present order of detention and the grounds of detention was available at the 889 time of the detention order of January 25, 1988.
The detaining authority, the respondent No. 1 has filed an affidavit in reply.
In para 16 of the said affidavit it has been stated that it is true that the detenu was released by the Advisory Board on April 3, 1987; but it is not true to say that two FIRs were lodged against the detenu with a view to harass him.
These two FIRs i.e.
C.R. Nos. 34 and 40 of 1987 were registered against the detenu on February 14, 1987 at P.S. Kalupur i.e. prior to the order dated April 3, 1987 passed by the State Government.
C.R. No. 34/87 was registered at P.S. Kalupur against the detenu for breach of externment order while C.R. No. 40/87 was registered against the detenu at P.S. Kalupur for an offence of provocative speech made by the detenu.
" In para 32, the respondent No. 1 merely denied the aver ments made in para 3(III) of the petition wherein it was specifically averred that there was no specific material for passing the detention order against the detenu.
In para 34, the respondent No. 1 has denied the statement that there is no application of mind to the facts of the case stated in the petition.
It has also been stated that the statement that there is no material to justify the action taken by the competent authority is not true.
It appears from the grounds of detention which was served under section 9 of the said Act that three criminal cases have been mentioned.
These are: 1.
P.S. Kalupur U/s 25(a)(c) of Arms pending in Court Case No. 372/85 Act, Sections 4, 5 of Explosive Act.
P.S. Kalupur U/s 120(b) of I.P.C. Pending for Case No. 456/87 U/s 25(1)(e)(c) of examination Arms Act and U/s (1) of the Terrorists Act, 1985 3.
P.S. Kalupur U/s 307, 120(b) of IPC Pending for Case No. 2/88 U/s 3(1) of Terrorists examination.
Act, U/s 4, 5 of Explo sives Act, U/s 25(1)(c) (1) of Arms Act and U/s 135(1) of Bombay Police Act.
900 It has also been stated therein that after careful consideration of the facts of the complaint of the aforesaid offences it is apprehended that detenu 's criminal activities will adversely affect the public order because the activi ties, the weapons kept by the detenu and his associates cannot except create terror in the State of Gujarat.
It has been further stated that: "You are arrested for committing the said offences, even though you are released on bail from the Court.
At present you are in jail in the case registered in Kalupur Police Station offence register No. 40/87 and there are full possibilities that you may be released on bail in this offence also.
" Out of these cases in respect of Case No. 2/88 which was registered on January 2, 1988 the name of the detenu is not mentioned in the F.I.R. In Case No. 372/85 also which was registered on June 26, 1985, the name of the detenu is not in the FIR.
The detenu, however, was arrested on October 17, 1987 i.e. after a lapse of more than two years and three months.
In Case No. 456/87 which was registered on October 16, 1987, the detenu was arrested on October 16, 1987.
This case related to the seizure of a revolver from the person of the detenu who kept the same without any licence in viola tion of the provisions of Arms Act.
The detaining authority while issuing the order of detention against the detenu, the brother of the petitioner who is already in custody, did not at all consider the fact that the Designated Court declined to grant bail to the detenu by its order dated May 13, 1988 in Crl.
No. 511 of 1988.
The detaining authority also was not aware that no application for bail on behalf of the detenu was filed between May 13 to May 23, 1988 i.e. the date when the detention order was made.
Had this fact been known to the detaining authority, the detaining authority could have considered whether in such circumstances he would have been subjectively satisfied on the basis of cogent materials, fresh facts and evidences that it was necessary to detain him in order to prevent him from acting in a manner prejudicial to the maintenance of public order.
In Rameshwar Shaw vs District Magistrate, Burdwan & Anr., ; the petitioner_was detained by the order of the District Magistrate under the provisions of .
The order recited that the District Magistrate was satisfied that it was necessary to detain the petitioner with a view to prevent him from acting in a manner prejudicial to the maintenance of public order.
This 901 order was served on the petitioner while he was in jail custody as.
an under trial prisoner in connection with a criminal case pending against him.
It was urged on behalf of the petitioner that the detention was not justified under the provisions of Section 3(1)(a) of the Act and as such it was invalid.
It was held that the satisfaction of the de taining authority under section 3(1)(a) is his subjective satisfaction and as such it is not justiciable.
It is not open to the detenu to ask the Court to consider the question as to whether the said satisfaction of the detaining author ity can be justified by the application of objective tests.
The reasonableness of the satisfaction of the detaining authority cannot be questioned in a court of law; the ade quacy of the material on which the said satisfaction pur ports to rest also cannot be examined by a court of law.
It has also been observed that if any of the grounds furnished to the detenu is found to be irrelevant while considering the application of clauses (i) to (iii) of Section 3(1)(a) and in that sense of the Act, the satisfaction of the de taining authority on which the order of detention is based is open to challenge and the detention order is liable to be quashed.
Similarly, if some of the grounds supplied to the detenu are so vague that they would virtually deprive the detenu of his right of making an effective representation that again may introduce a serious infirmity in the order of his detention.
It has been further observed that an an abstract proposition of law, there may not be any doubt that Section 3(1)(a) of the Act does not preclude the authority from passing an order of detention against a person whilst he is in detention in jail but in deciding the question as to whether it is necessary to detain a person, the detaining authority has to be satisfied that if the said person is not detained he may act in a prejudicial manner and this conclu sion can be reasonably reached by the authority generally in the light of the evidence about the past prejudicial activi ties of the said person.
The past conduct or antecedent history of a person can be taken into account in making a detention order, but the past conduct or antecedent history of the person, on which the authority purports to act, should ordinarily be proximate in point of time and would have a rational connection with the conclusion drawn by the authority that the detention of the person after his release is necessary.
The detention of a person without a trial is a very serious encroachment on his personal freedom and so at every stage, all questions in relation to the said detention must be carefully and solemnly considered.
The detaining authority considered the antecedent history and past conduct which was not proximate in point of time to the order of detention and as such the detention order was held to be not justified and so the same was set aside.
902 In Alijan Mian vs District Magistrate, Dhanbad and Ors. etc.
, [1983] 4 SCC 301 detention orders were served on the petitioners in jail.
The detaining authority was alive to the fact that the petitioners were in jail custody on the date of the passing of the detention orders as evident from the grounds of detention.
It was stated therein that the position would have been entirely different if the petition ers were in jail and had to remain in jail for a pretty long time.
In such a situation there could be no apprehension of breach of public order from the petitioners.
But the detain ing authority was satisfied that if the petitioners were enlarged on bail, of which there was every likelihood, it was necessary to prevent them from acting in a manner preju dicial to public order.
It was held that the pendency of a criminal prosecution is no bar to an order of preventive detention, nor is an order of preventive detention a bar to prosecution.
it is for the detaining authority to have the subjective satisfac tion whether in such a case there is sufficient material to place a person under preventive detention in order to pre vent him from acting in a manner prejudicial to public order or the like in future.
In Ramesh Yadav vs District Magistrate, Etah and Ors., the order of detention under section 3(2) of was made at a time when the petitioner had already been in Mainpur jail as an under trial prisoner in connection with certain pending criminal cases.
The grounds of detention were served on the petition er along with the order of detention.
The petitioner asked for certain papers with a view to making an effective repre sentation but when the request was rejected, the petitioner made a representation.
The Board did not accept the peti tioner 's plea.
The petitioner 's detention was confirmed by the State Government.
This was challenged in the writ peti tion.
Apart from specifying five grounds in the grounds of detention, a reference was made to the fact that the detenu creates public terror on account of his criminal activities which are absolutely prejudicial to ' the maintenance of public order.
It was further mentioned in the detention order that though the petitioner was detained in district jail yet he filed an application for bail in the court of law and the same has been fixed for heating on September 17, 1984, and there is a positive apprehension that after having bail he will be out of jail and the detaining authority is convinced that after being released on bail he will indulge in activities prejudicial to the maintenance of public order.
It was observed that: 903 "On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenu was released on bail he would again carry on his criminal activi ties in the area.
If the apprehension of the detaining authority was true, the bail appli cation had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised.
Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail an order of detention under the should not ordinarily be passed.
" In Suraj Pal Sahu vs State of Maharashtra and Ors., ; Sabyasachi Mukharji, J while agreeing with the views expressed in Ramesh Yadav vs District Magistrate, Etah & Ors., (supra) observed that the principle enunciated in the said case would have to be judged and applied in the facts and circumstances of each case.
Where a person accused of certain offences whereunder he is undergoing trial or has been acquitted, the appeal is pending and in respect of which he may be granted bail may not in all circumstances entitle an authority to direct preventive detention and the principle enunciated by the aforesaid decision must apply but where the offences in respect of which the detenu is accused are so interlinked and continuous in character and are of such nature that these affect continuous maintenance of essential supplies and thereby jeopardize the security of the State, then subject to other conditions being fulfilled, a man being in detention would not detract from the order being passed for preventive detention.
In Vijay Narain Singh vs State of Bihar & Ors., ; at 459 wherein an order of detention under Section 12(2) of Bihar Control of Crimes Act, 198 1 was served on the petitioner while he was in jail as an under trial pris oner in a criminal case under Section 302 I.P.C. and was allowed to be enlarged on bail by the High Court but not yet enlarged, it was held that: "It is well settled that the law of preventive detention is a hard law and therefore it should be strictly construed . the law of preventive detention should not be used merely to clip the wings of an accused who is in volved in a criminal prosecution.
" 904 In the case of Raj Kumar Singh vs State or Bihar and Ors., ; Mukharji, J. observed that while adequacy or sufficiency is no ground for a challenge, rele vancy or proximity is relevant in order to determine whether an order of detention was arrived at irrationally or unrea sonably.
It has been further observed that: "Preventive detention as reiterated is hard law and must be applied with circumspection rationally, reasonably and on relevant materi als.
Hard and ugly facts make application of harsh laws imperative.
The detenu 's rights and privileges as a free man should not be unnec essarily curbed.
" In Binod Singh vs District Magistrate, Dhanbad, Bihar and Ors., ; at 420 21 the petitioner was arrested in connection with the criminal case and he was already in custody.
The order of detention dated January 2, 1986 under Section 3(2) of was served on the petitioner in jail.
It was observed by the Court that; " . .
There must be awareness of the facts necessitating preventive custody of a person for social defence.
If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised.
A bald statement is merely an ipse dixit of the officer.
If there were cogent materials for thinking that the detenu might be released then these should have been made apparent.
Eternal vigilance on the part of the authority charged with both law and order and public order is the price which the democracy in this country extracts from the public officials in order to protect the fundamental freedoms of our citizens." In Poonam Lata vs
M.L. Wadhawan & Anr., ; the court observed that: "The fact that the detenu is already in deten tion does not take away the jurisdiction of the detaining authority in making an order of preventive detention.
What is necessary in such a case is to satisfy the court when detention is challenged on that ground that the detaining authority was aware of the fact that the detenu was already in custody and 905 yet he was subjectively satisfied that his order of detention became necessary.
" In Smt.
Shashi Aggarwal vs State of U.P. and Ors.
, ; at 440 the detenu was detained by the District Judge, Meerut by an order dated August 3, 1987 made under Section 3(2) of .
The detention order was approved by the State Government on receipt of the opinion of the Advisory Board.
It was chal lenged by a writ petition before this Court.
The Court observed that: "In the instant case, there was no material made apparent on record that the detenu, if released on bail, is likely to commit activi ties prejudicial to the maintenance of public order.
The detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out.
We do not think that the order of detention could be justified on that basis.
" On a consideration of the aforesaid decisions the prin ciple that emerges is that there must be awareness in the mind of the detaining authority that the detenu is in custo dy at the time of service of the order of detention on him and cogent relevant materials and fresh facts have been disclosed which necessitate the making of an order of deten tion.
In this case, the detenu was in jail custody in con nection with a criminal case and the order of detention was served on him in jail.
It is also evident that the applica tion for bail filed by the detenu was rejected by the Desig nated Court on 13th May, 1988.
It is also not disputed that thereafter no application for bail was made for release of the detenu before the order of detention was served on him on 23rd May, 1988.
It appears that in the grounds of deten tion there is a statement that at present you are in jail yet "there are full possibilities that you may be released on bail in this offence also.
" This statement clearly shows that the detaining authority was completely unaware of the fact that no application for bail was made on behalf of the detenu for his release before the Designated Court and as such the possibility of his coming out on bail is non exist ent.
This fact of non awareness of the detaining authority, in our opinion, clearly establishes that the subjective satisfaction was not arrive&at by the detaining authority on consideration of relevant materials.
There is also nothing to show from the grounds of detention nor any fresh facts have been disclosed after the detention order dated January 25, 1988 was set aside by the Advis 906 ory Board on March 13, 1988, on the basis of which the detaining authority could come to his subjective satisfac tion that the detenu, if released on bail will indulge in acts prejudicial to the maintenance of public order and as such an order of detention is imperative.
In the grounds of detention three criminal cases have been mentioned.
Out of those three criminal cases, criminal case No. 372/85 was lodged on June 26, 1985 i.e. much before the present deten tion order and several orders of detention were made in the meantime.
This criminal case is, therefore, not proximate in time to the making of the order of detention.
So it is a stale ground.
Another criminal case No. 456/87 is dated October 16, 1987 on the basis of which the previous order of detention was made.
This case has nothing to do with the maintenance of public order as it pertains to the recovery of a revolver from the detenu on a search of the person of the detenu, without any valid licence under the Arms Act.
The third case No. 2/88 is dated January 2, 1988.
This case was in existence at the time of making of the detention order dated January 25, 1988.
Moreover, the name of the detenu is not in the F.I.R. The statements of some of the associates of the detenu have been annexed to the grounds of detention.
These statements do not disclose any activity after 14th March, 1988 or any activity of the time when the detenu was a free person.
Considering all these facts and circumstances we are constrained to hold that there has been no subjective satisfaction by the detaining authority on a consideration of the relevant materials on the basis of which the impugned order of detention has been clamped on the detenu.
It also appears that the detenu was in detention as well as in jail custody for about three years except released on parole for short; periods.
The only period during which he was a free person was from 14th March, 1988 to 13th April, 1988.
During this period no act prejudicial to the maintenance of public order has been alleged to have been committed by the detenu.
It is convenient to mention here that Section 15(2) of PASA Act says that a detention order may be revoked by State Government; but such revoca tion on expiry of detention order will not bar making of a fresh detention order provided where no fresh facts have arisen after expiry or revocation of the earlier detention order made against such person.
The maximum period of deten tion in pursuance of subsequent detention order cannot extend beyond twelve months from the date of detention of earlier order.
This Court in considering similar provision in Section 13(2) of in Kshetra Gogoi vs The State of Assam, ; at 43 held the order of detention as illegal stating that: " . .
Under Section 13(2) what is required is that fresh 907 facts should have arisen after the expiry of the previous detention.
Facts arising during the period of detention are, therefore, not relevant when applying the provisions of Section 13(2).
" It is highlighted in this connection that in the affida vit in reply filed by the respondent No. 1, the detaining authority, he merely denied the specific averments made in para 3(III) that no act prejudicial to the maintenance of law and order on the part of the detenu is alleged to have been committed by the detenu between 14th March to 13th April, 1988 etc.
without specifically denying those state ments.
In this background, a mere bald statement that the detenu who is in jail custody is likely to be released on bail and there are full possibilities that he may continue the above offensive activities without reference to any particular case or acts does not show on the face of the order of detention that there has been subjective satisfac tion by the detaining authority in making the order of detention in question.
We, therefore, quash the order of detention and direct the respondents to set the detenu at liberty forthwith.
Y.L. Petition allowed.
|
The Commissioner of Police, Ahmedabad, Respondent No. 1 therein passed an order of detention dated 23.5.1988 against Abdul Latif Abdul Wahab, petitioner 's brother under section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985 and served the same on the detenu, while he was in jail, in pursuance of an order of remand made by the Desig nated Court, Ahmedabad in CR No. 40 of 1987.
The petitioner, detenu 's brother challenged the validity of this order on the ground, amongst others, that there has been absolute non application of mind on the part of the detaining author ity in making the order of detention.
The grounds of detention furnished to the detenu, makes mention of three criminal cases viz. Case No. 372/85, Case No. 456/87 and Case No. 2/88 pending against the detenu at P.S. Kalupur, out of which case No. 372/85 is stated to be pending in Court and the other two pending for examination.
The detaining authority acting on the basis of the said complaints apprehended that detenu 's criminal activities will adversely affect the public order because the activi ties, the weapons kept by the detenu and his associates cannot except create terror in the State of Gujarat.
The detaining authority further felt that the detenu though in jail, there are full possibilities that he may be released on bail in that offence.
It may be pointed out that in case No. 2/88, the name of the detenu does not find place in the FIR.
Likewise in case No. 372/85 aforesaid, detenu 's name is not there.
891 In case No. 456/87, registered on 16.10.87 the detenu was arrested the same day.
The case related to the seizure of a revolver from the person of detenu.
The detaining authority while issuing the order of detention against the detenu, did not at all consider the fact that the Designated Court declined to grant bail to the detenu by its order dt.
May 13, 1988.
The detaining authority also was not aware that no application for bail by detenu was filed between May 13 to May 23, 1988 i.e. when the detention order was made.
The Court in order to decide the various contentions advanced by the parties felt it necessary to consider the background as well as the various detention orders passed against the detenu.
The first in the series is an order dt.
11th September, 1984 when the Respondent No. 1 issued to the detenu a notice to show cause why he should not be externed from the boundaries of Ahmedabad and the surroundings rural areas.
In 1985 the detenu was arrested u/s 307, 143, 147, 148 & 324, I.P.C. CR case No. 37/85 wherein he was granted bail by the Sessions Judge on February 14, 1985.
On 24th March 1985, Commr. of Police passed an order of detenu 's detention.
On 6th July 1985 charge sheet in CR Case No. 37 of 1985 was submitted.
On 27th September, 1985 inquiry into the externment proceedings was completed.
On Dec. 12, 1985 the detenu surrendered and was taken into custody.
On May 26, 1986, the detenu was acquitted in that case.
The detenu was released from the jail on June 23, 1986 and as soon as he came out of the jail, an order of detention under Preven tion of Anti Social Activities Act was served on the detenu there and then and he was once again taken into custody.
It may be mentioned in this connection that on Jan. 18, 1986, the order of externment of the detenu from Ahmedabad city and rural areas of Gandhi Nagar etc. was made when the detenu was in jail.
The State Govt.
on appeal by the detenu confirmed the order of externment.
However on August 7, 1986, the Govt.
revoked the order of detention, as Advisory Board could not be constituted.
On the same day the State Govt.
passed the second order of detention under PASA and the same was served on the detenu the same day.
The detenu challenged the validity of both the externment order as also the detention order in the High Court.
The High Court re jected the petition challenging the order of detention and he filed petition for special leave in this Court.
This Court released the detenu on parole on 23.1.87 as he was to participate in municipal elections which were to take place on 25th Jan. 1987.
The detenu was released on parole on 24th Jan. 1987.
He won the election from all the wards wherefrom he had contested.
This Court on February 9, 1987 quashed the detention order and 892 directed the respondents to set the detenu at liberty.
On February 14, 1987 when the detenu went to the police station with his advocate to mark his presence as required by the earlier bail order, he was again taken into custody for breach of order of externment of 18.1.1986.
He was granted bail.
On February 15, 1987 an order of detention under section 8(a) of the National Security Act was passed against the detenu.
The detenu challenged the same but in the meantime Advisory Board released him.
On October 16, 1987, the detenu was again arrested for an incident of Feb. 14, 1986.
He applied for bail before the Designated Court which was refused.
Against that order he preferred an appeal to this Court under section 16 of the Terrorists and Disruptive Activities (Prevention) Act 1985.
This Court set aside the order of the Designated Court and remitted the matter back to the said Court with a direction to decide the matter afresh and enlarge the detenu on bail pending the disposal of the application for bail.
Another order of detention was passed against the detenu on Jan. 25, 1988 which was later withdrawn as the Advisory Board declined to confirm the same.
The detenu was released on March 14, 1988.
At the hearing of the appeal by this Court on 7.4.88 an application was made that the detenu has absconded whereupon this Court ordered that the detenu should surrender within a week 's time.
He accordingly surrendered on April 13, 1988.
On May 23, 1988 the order of detention in question was made which is hereby challenged.
The contention raised on behalf of the petitioner is that in the grounds of detention furnished in support of the order of detention, no prejudicial act on the part of the detenu is alleged between March 14, 1988 and April 13, 1988 during which small period he was a free man; as he was in jail for nearly three years prior to March 14, 1988 except for short periods when he was on parole, and after April 13, 1988 again he was under custody.
It is urged that no preju dicial activity has been shown, when the detenu was on parole.
As such the action of the respondent is wholly vindictive and in total defiance of law.
According to him there has been no application of mind at all to the most glaring fact that the Designated Court in defiance of this Court 's order did not grant interim bail to the detenu by its order dt.
13.5.88.
There was no possibility therefore of the detenu being released on bail.
It was thus impossi 893 ble to prove the statement made in the grounds of detention that there were full possibilities that the detenu may be released on bail in this case.
Allowing the petition, this Court, HELD: The detention of a person without a trial is a very serious encroachment on his personal freedom and so at every stage, all questions in relation to the detention must be carefully and solemnly considered.
[901G] The past conduct or antecedent history of a person can be taken into account in making a detention order but the past conduct or antecedent history of the person, on which the authority purports to act, should ordinarily be proxi mate in point of time and would have a rational connection with the conclusion drawn by the authority that the deten tion of the person after his release is necessary.
[901F G] There must be awareness in the mind of the detaining authority that the detenu is in custody at the time of service of the order of detention on him, and cogent rele vant materials and fresh facts have been disclosed which necessitate the making of an order of detention.
[905D E] In the instant case, the detenu was in jail custody in connection with a criminal case and the order of detention was served on him in jail.
It is also evident that the application for bail filed by the detenu was rejected by the Designated Court on May 13, 1988.
The statement in the grounds of detention that at present you are in jail yet "there are full possibilities that you may be released on bail in this offence also" clearly shows that the detaining authority was completely unaware of the fact that no appli cation for bail was made on behalf of the detenu for his release before the Designated Court and as such the possi bility of his coming out on bail is non existent.
This fact of non awareness of the detaining authority clearly estab lishes that the subjective satisfaction was not arrived at by the detaining authority on consideration of relevant materials.
The only period during which he was free person was from March 14, 1988 to April 13 1988.
During this period no act prejudicial to the maintenance of public order has been alleged to have been committed by the detenu.
[905E G; 906E F] A mere bald statement that the detenu is in jail custo dy is likely to be released on bail and there are full possibilities that he may continue 894 the offensive activities without reference to any particular case or acts does not show on the face of the order of detention that there has been subjective satisfaction by the detaining authority in making the order of detention in question.
[907C D] The order of detention was accordingly quashed and the detenu directed to be set at liberty forthwith.
[907D] Rameshwar Shaw Burdwan & Anr.
vs Distt.
Magistrate Burdwan & Anr., ; referred to; Alijan Mian vs Distt.
Magistrate Dhanbad & Ors.
, [1983] 4 SCC 301 referred to; Ramesh Yadav vs Distt.
Magistrate, Etah & Ors., referred to; Suraj Pal Sahu vs State of Maharashtra & Ors., ; referred to; Vijay Narain Singh vs State of Bihar & Ors., referred to; Raj Kumar Singh vs State of Bihar & Ors., ; referred to; Binod Singh vs Distt.
Magis trate Dhanbad & Ors., ; at 420 21; Poonam Lata vs
M.L. Wadhawan and Anr., ; referred to and Smt.
Shashi Aggarwal vs State of U.P. & Ors., ; at 440, referred to.
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These cross appeals are directed against the order passed by
Ld. CIT(A)-5, Bengaluru and they relate to the assessment year
2. These appeals were earlier disposed of by this bench of
Tribunal vide its order dated 2.12.2016. The assessee challenged
the order passed by the Tribunal by filing appeal before Hon’ble
High Court of Karnataka. The Hon’ble High Court has restored the
matter back to the file of the Tribunal with the following
“8. From close scrutiny of the order passed by the Tribunal, it
is evident that the tribunal while deciding the appeal preferred by
the revenue has adjudicated only grounds 2 and 3 and has not
adjudicated the ground with regard to the claim of assessee under
Section 54F of the Act in the light of law laid down by Delhi High
Court in ‘CIT Vs. GITA DUGGA’, (2013) 257 CTR (DEL.) 208.
The Tribunal has failed to adjudicate the grounds raised by the
assessee in her appeal. The impugned order therefore, cannot be
sustained in the eye of law. It is accordingly quashed. The matter
is remitted to the tribunal to decide the appeal preferred by the
assessee as well as the revenue afresh in accordance with law laid
down by this Court in NAVIN JOLLY, GITA DUGGAL, M.
WAHAL supra. It is therefore, not necessary for us to answer the
substantial questions of law.”
We notice that the Hon’ble High Court has directed the Tribunal to
decide the appeals afresh.
3. At the time of hearing, both the parties admitted that the tax
effect involved in the appeal filed by the revenue is below the
monetary limit as prescribed by the CBDT in its circular
No.17/2019 dated 8.8.2019. Accordingly, the appeal of the revenue
is dismissed in limine.
4. The only issue urged in the appeal of the assessee relates to
partial rejection of deduction claimed u/s 54F of the Income-tax
Act,1961 ['the Act' for short].
5. The facts relating to the issue are stated in brief. The
assessee is an individual and she filed her return of income for the
year under consideration on 29.9.2008 declaring a total income of
Rs.9,06,860/-. The assessee had earned long term capital gain of
Rs.1,56,85,225/- on sale of a land and claimed exemption u/s 54F
of the Act from it to the extent of Rs.1,56,33,870/-. Accordingly,
the assessee offered net long term capital gain of Rs.51,355/-.
6. The A.O. examined the long-term capital gain declared by the
assessee. It was noticed that the assessee along with 3 other
persons had sold a property on 27.10.2007 for a consideration of
Rs.5.35 crores. The assessee’s share out of the above said
consideration was Rs.1,60,50,000/-. The assessee claimed that she
has purchased a residential house property in a project named
“M/s. Prestige Ozone” for a sum of Rs.1,72,29,993/-. Accordingly,
she claimed deduction u/s 54F of the Act to the extent of
7. The A.O. examined the details of purchase of the property at
Prestige Ozone. The A.O. noticed that the initial agreement was
entered by the assessee’s husband Shri Y.C. Rami Reddy with M/s
Prestige Properties on 5.5.2004 for construction of building at a
cost of Rs.46,35,610/-. Subsequently, a sale deed was registered
on 24.2.2007 for purchase of plot No.8 having extent of Rs.6,108
sq.ft. for a consideration of Rs.39,67,933/-, on which the above
said construction has happened. The said sale deed was executed
in favour of Shri Y.C. Rami Reddy and the assessee herein. The
assessee claimed that she has reimbursed all the payments made
by her husband to him and she also incurred further expenses for
interior design, etc. Accordingly, the assessee claimed that the
entire cost of purchase was met by her and further, the property
was purchased by her from her husband. The breakup details of
total expenses incurred in connection with this property was stated
Cost of land as per agreement dt 5.5.04 Rs.39,69,933.00
Cost of Construction as per agreement dt. 5.5.2004 Rs.46,35,210.00
Common Maintenance Charges as per clause 8(b) Rs.87,500.00
Common Maintenance Charges as per cluse 8(d) Rs.87,500.00
Payment made to Prestige and other structural changes Rs.34,17,560.00
Payment made to Morph Design vide letter dt 6.3.2007 Rs.30,66,252.00
for changes in the villa
Material purchased and supplied by the assessee Rs.7,89,677.00
Cost of registration of land on 24.02.2007 Rs.3.77,540.00
Other costs Rs.8,98,421.00
8. The A.O. examined the cost of purchase of property furnished
to him and noticed that the assessee could not furnish evidence
with regard to the expenses incurred on interiors, etc. Accordingly,
the A.O. held that the cost of acquisition should be taken as
Rs.91,57,683/- only as given below:-
1. Cost of land vide sale deed dt 24.2.2007 – Rs.39,69,933.00
2. Cost of construction vide agreement dt.5.5.2004 – Rs.46,35,210.00
3. Common maintenance charges vide clause 8(b)&(d) - Rs. 1,75,000.00
4. Cost of registration of land on 24.2.2007 - Rs. 3,77,540.00
Total cost of acquisition - Rs.91,57,683.00
9. The A.O. also examined the claim of the assessee for
deduction u/s 54F of the Act. The A.O. took the view that the
assessee is not eligible for deduction u/s 54F of the Act for the
following reasons:-
1. The assessee has already held 50% share in the Prestige
Ozone building and hence, there was no necessity for her to
pay the full consideration of Rs.1.72 crores to her husband.
2. The husband has relinquished his right in favour of the
assessee on 3.1.2008 by way of an unregistered document,
which was subsequently registered on 25.1.2010.
Accordingly, the assessee cannot be considered to have
purchased new house within one year before the date of
transfer.
3. The assessee has got more than one residential house at the
time of sale of the land as given below:-
a) Property at 19/1, Outer Ring Road, Penathur Junction,
b) A residential house in Ooty.
4. The assessee has also advanced money to purchase another
flat at M/s. Prestige Knotting Hill on 8.6.2007. Purchase of
another new house within 3 years is in violation of third
proviso to Section 54F of the Act, which would disentitle the
assessee for deduction u/s 54F of the Act.
5. The assessee became absolute owner of the building in
Prestige Ozone only on 25.1.2010.
Accordingly, the A.O. rejected the claim for deduction u/s 54F of
10. Before Ld. CIT(A), the assessee filed detailed submissions.
The assessee also submitted that the sale consideration should be
reduced by an amount of Rs.26,75,000/-. It was submitted that
the above said amount represented sale value of a portion of land
gifted by assessee’s son to her. However, in the assessment of the
assessee’s son, the above said amount of Rs.26.75 lakhs was
included for computing capital gain disregarding the claim of gift to
the assessee herein. Accordingly, it was prayed that the above said
amount should be reduced from the value of sale consideration
offered by the assessee, since it has already been assessed in the
hands of the assessee. Since the assessee has made detailed
explanations with regard to the various observations made by the
A.O, the Ld. CIT(A) called for a remand report from the A.O.
11. The assessee submitted she does not own the property
mentioned in her return of income as located at Outer Ring Road.
It was submitted that the rental income shown against that
property was actually received from the property purchased in
Prestige Ozone and the mistake has happened due to typographical
mistake. We notice this fact was accepted by the tax authorities.
12. (a) With regard to the residential flat located in Ooty, the A.O.
observed in the remand report that it consisted of 3 residential
buildings and hence, the condition prescribed in section 54F of the
Act is violated.
(b) The AO reiterated that the assessee has given advance
for purchase of a flat at Prestige Nottingghill, which is a violation of
the one of the conditions prescribed in sec. 54F of the Act. Hence
the assessee is not eligible for deduction.
(c) The AO accepted the fact that the sale consideration of
Rs.26.75 lakhs was assessed in the hands of the assessee’s son.
13. In the reply to the remand report, the assessee submitted
that the assessing officer is taking the view that there are three
residential house properties in Ooty for the first time. It was
submitted that it is a single building having three units in ground
floor, 1st and 2nd Floor. The assessee also submitted that she has
furnished bills for interior works to the maximum extent possible
and she could not furnish evidences to the extent of Rs.16,97,098/-
, which agreed for disallowance.
14. The Ld. CIT(A) after considering the remand report as well as
the reply given by the assessee to the remand report gave his
decision as under:-
a) The residential flat located at Ooty is a single residential
building consisted of 3 residential units. Accordingly, he held
that the residential building at Ooty should be considered as
a single house property.
b) With regard to advance given by assessee for purchase of flat
at Prestige Knotting Hill, the Ld. CIT(A) held that mere giving
advance will not result in acquisition of any house property.
Hence, it cannot be said that the third proviso to section 54F
of the Act is violated.
15. With regard to the cost of acquisition of the building, the Ld.
CIT(A) took the view that
(a) the expenditure incurred on interiors, renovation,
furnishing, etc. after registration of plot i.e. after 24.2.2007 cannot
be taken as part of cost of acquisition.
(b) the assessee has purchased only 50% of right from her
husband on 27.10.2007 and she has already held 50% earlier. The
Release deed given by husband of the assessee was registered on
25.1.2010, which is 3 years from the date of sale of original
property. Accordingly, the Ld. CIT(A) took the view that,
irrespective of the amount of payment made to her husband, the
assessee can be said to have acquired only 50% of the property on
25.1.2010, which falls within 3 years from the date of sale of
original property. Accordingly, he took the view that the deduction
u/s 54F of the Act shall be available to the assessee only to 50% of
cost of acquisition of asset.
(c) Since the Ld CIT(A) took the view that the expenses
incurred after 24.2.2007 cannot be considered as part of
acquisition of property, he computed the cost of acquisition as
Cost of construction - Rs.46,35,610/-
Cost of land as per sale deed - Rs.43,47,473/-
Maintenance charges - Rs. 1,75,000/-
Accordingly, the Ld CIT(A) held that the assessee is eligible for
deduction u/s 54F of the Act only in respect of 50% of the cost of
property, i.e., 50% of Rs.91,58,083/-, i.e., Rs.45,79,042/-.
16. Aggrieved by the order passed by Ld CIT(A), both the parties
have filed appeals before the Tribunal. We have already dismissed
the appeal of the Tribunal, since the tax effect involved therein was
less than the monetary limits prescribed by CBDT for pursuing its
appeals. Hence the issues urged by the assessee are only need to
be adjudicated. Following issues are contested by the assessee:-
(a) Whether the Ld CIT(A) was justified in ignoring
expenditure of Rs.81,71,910/- incurred on the new house property
for computing deduction u/s 54F of the Act.
(b) Whether Ld CIT(A) was justified in holding that the
assessee is entitled to claim deduction to the extent of 50% of the
cost of acquisition computed by him.
17. From the facts discussed above, we noticed that the
agreement for the purchase of property was first entered by the
assessee’s husband in 2004. However the sale agreement for
transfer of plot was registered only on 24.2.2007 and it was
registered in the name of the assessee and her husband.
Accordingly, the AO/Ld CIT(A) has taken the view that the assessee
was already entitled to 50% of the right in the property. The
Hon’ble Karnataka High Court has held in the case of Mrs. Jennifer
Bhide (2011)(15 taxmann.com 82)(Kar) that the deduction u/s 54 of
the Act should not be denied merely because the name of assessee’s
husband is mentioned in the purchase document, when the entire
purchase consideration has flown from the assessee. In the instant
case also, the plot was purchased in the name of the assessee and
her husband. Hence, what is required to be examined is the
question, viz., who has funded the acquisition?.
Admittedly, in the instant case, the assessee’s husband had
advanced money initially. Subsequently, the admitted fact is that
the assessee has reimbursed the money to her husband and finally,
it is the assessee who has actually given funds for the acquisition of
the property. We notice that the Ld CIT(A) has taken the view that
the funds given by the assessee should not be taken in account and
in our view, the said view of the Ld CIT(A) is not, in our view, correct
in law.
18. The deduction u/s 54F of the Act only induces an assessee to
make investment in residential house property. If the assessee has
herein has given money for acquisition of the property either
directly to the builder or as reimbursement to her husband, then
the assessee should be given benefit of deduction u/s 54F of the Act
for the cost of acquisition.
19. The next impediment in the minds of the tax authorities was
that the plot was purchased jointly in the name of the assessee and
her husband and hence it should be held that both held 50% right
each and hence the assessee could have purchased only her
husband’s share only. We are unable to agree with this logic.
There is no dispute that the assessee has actually given funds for
the acquisition of the property. When the assessee’s husband has
not given money for purchase of property, how it can be held that
her husband was owner of 50% of the property merely for the
reason that his name appears in the conveyance agreement and
also in the rental agreement. The deduction under sec.54F of the
Act shall be given only to the person who has invested the money.
In the instant case, it is the assessee who has invested the money
and hence the assessee should be given deduction u/s 54F of the
Act for the money invested by her.
20. The next issue is with regard to the cost of acquisition. The
assessee claimed the cost of acquisition to be Rs.1,72,29,993/-.
During the remand proceedings, the assessee herself has agreed for
reduction of cost of acquisition by Rs.16,97,098/-, since she could
not prove the incurring of expenses to that extent. Hence the cost
of acquisition as per the assessee now stands at Rs.1,55,32,895/-.
There is no dispute that the assessee has invested the money to the
above said extent in acquisition of the property.
21. The Ld CIT(A) has taken the view that the amount spent after
the date of registration of land, i.e., 24.02.2007 for interiors,
renovation, furnishing etc cannot be part of acquisition. The
Hon’ble Karnataka High Court has held in the case of Mrs. Rahana
Siraj (2015)(58 taxmann.com 333)(Kar) that the money spent in
additions, alterations, modifications and improvements on the new
asset to make it habitable would be eligible for benefit of deduction
u/s 54F of the Act. Accordingly, we set aside the view so taken by
Ld CIT(A) as it is contradictory to the binding decision of
jurisdictional High Court. Accordingly, we hold that the assessee is
eligible for deduction u/s 54F of the Act in the amount spent on
interiors, renovation, furnishing etc.
22. In view of the foregoing discussions, we hold that the
deduction u/s 54F of the Act should be computed on the above said
amount of Rs.1,55,32,895/- and direct the AO accordingly.
23. In the result, the appeal filed by the assessee is treated as
allowed and the appeal of the revenue is dismissed.
Order pronounced in the open court on 28th Apr, 2022.
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The Banglore Bench of the Income Tax Appellate Tribunal (ITAT) headed by N.V. Vasudevan (Vice-President) and B.R. Baskaran (Accountant Member) has ruled that the capital gain exemption cannot be denied to the wife for the mere presence of the husband's name in the purchase document.
The appellant/assessee is an individual, and she filed her return of income for the year under consideration, declaring a total income of Rs. 9,06,860. The assessee had earned long-term capital gain on the sale of land and claimed exemption under section 54F of the Income Tax Act from it to the extent of Rs. 1,56,33,870. The assessee offered a net long-term capital gain of Rs. 51,355.
The AO examined the long-term capital gain declared by the assessee. It was noticed that the assessee, along with 3 other persons, had sold a property for a consideration of Rs. 5.35 crores. The assessee's share of the consideration was Rs. 1,60,50,000/-. The assessee claimed that she had purchased a residential house property in a project named "M/s. Prestige Ozone" for a sum of Rs. 1,72,29,993/-. Accordingly, she claimed a deduction under section 54F of the Income Tax Act to the extent of Rs. 1,56,33,870.
The AO examined the details of the purchase of the property at Prestige Ozone. The AO noticed that the initial agreement was entered into by the assessee's husband, Y.C. Rami Reddy, with M/s Prestige Properties for the construction of a building at a cost of Rs. 46,35,610. Subsequently, a sale deed was registered for the purchase of plot No.8, having an extent of Rs.6,108 sq.ft. for a consideration of Rs.39,67,933, on which the construction has happened. The sale deed was executed in favour of Y.C. Rami Reddy and the assessee. The assessee claimed that she had reimbursed all the payments made by her husband to him and she had also incurred further expenses for interior design, etc. Accordingly, the assessee claimed that the entire cost of purchase was met by her, and the property was purchased by her from her husband.
The AO examined the claim of the assessee for a deduction under section 54F of the Income Tax Act. The AO took the view that the assessee was not eligible for a deduction under section 54F of the Income Tax Act on the grounds that she had already held a 50% share in the Prestige Ozone building and, hence, there was no necessity for her to pay the full consideration of Rs. 1.72 crores to her husband.
The assessee challenged the order of the AO before the CIT (A). The CIT (A) held that the expenditure incurred on interiors, renovation, furnishing, etc. after the registration of the plot, i.e., after 24.2.2007, cannot be taken as part of the cost of acquisition. On October 27, 2007, the assessee purchased only 50% of the rights from her husband, and she already held 50%.The release deed given by the husband of the assessee was registered on 25.1.2010, which is 3 years from the date of the sale of the original property. Accordingly, the CIT (A) took the view that, irrespective of the amount of payment made to her husband, the assessee can be said to have acquired only 50% of the property on 25.1.2010, which falls within 3 years from the date of sale of the original property. As a result, he concluded that the deduction under section 54F of the Income Tax Act should be limited to 50% of the cost of acquiring an asset.
The issue raised was whether the CIT (A) was justified in ignoring expenditure of Rs.81,71,910/- incurred on the new house property for computing deduction under section 54F of the Income Tax Act.
The ITAT observed that the assessee's husband had advanced money initially. Subsequently, the assessee has reimbursed the money to her husband, and finally, it was the assessee who actually gave funds for the acquisition of the property.
"We notice that the CIT (A) has taken the view that the funds given by the assessee should not be taken into account and, in our view, the said view of the CIT (A) is not, in our view, correct in law," the tribunal said.
The ITAT ruled that the deduction under section 54F of the Income Tax Act only induces an assessee to make an investment in residential house property. If the assessee has given money for the acquisition of the property, either directly to the builder or as reimbursement to her husband, then the assessee should be given the benefit of a deduction under section 54F of the Act for the cost of acquisition.
Case Title: Y. Manjula Reddy Vs. ITO
Dated: 28.04.2022
Counsel For Appellant: A.R. Padam Chand Khincha
Counsel For Respondent: D.R. Sankar Ganesh K.
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Mr. Yeshwant Shenoy, petitioner-in-person,
Mr. Amogh Singh a/w Mr. Pranav Thackur for
respondent nos.1 and 3.
Mr. Vikram Nankani, Senior Advocate a/w Ms.
Shoma Maitra a/w Mr. Nikhil Apte a/w Dhruv
Nyahadhish and Mehul Talera i/by Wadia Ghandy &
Co. for respondent no.4.
Mr. Abhijit Khare with Smt. T. H. Puranik & Ms. K.
H. Mastakar for respondent no.6/MCGM.
Mr. P. P. Kakade, Govt. Pleader a/w Mr. M. M.
Pabale, AGP for respondent nos.7, 8 & 9/State.
1. This public interest litigation raises a concern of seminal
importance. Aviation safety and ancillary matters have been
placed before us. The petitioner seeks to obtain orders from
the Court to activate the respondents 2, 3 and 4 to comply
with the provisions of the Aircraft (Demolition of obstructions
caused by Buildings and Trees etc.) Rules, 1994 (hereafter
“the 1994 Rules”, for short).
2. Pursuant to the earlier orders passed by this Court,
affidavits have been filed by the respondents. The affidavit
dated 8th July 2022 filed on behalf of the respondent no.4, the
Mumbai International Airport Limited, inter alia, reveals this.
As per a survey conducted in 2010, particulars of 137
obstacles (buildings/ structures) on the approach surface of
all the runways of the Chhatrapati Shivaji Maharaj
International Airport (hereafter “the airport”, for short) were
submitted to the Director General of Civil Aviation (hereafter
“DGCA”, for short) for removal. Notices were issued under rule
4 of the 1994 Rules to 110 owners of such obstacles pursuant
whereto final orders of demolition were passed in May and
June 2017 in respect of 63 such obstacles. Owners of nine (9)
such obstacles preferred appeals to the DGCA, whereas six
(6) owners complied with the final orders. It is revealed from
the affidavit that 49 obstacles are yet to be removed and the
particulars of such obstacles have been furnished by the
respondent no. 4 to the District Collector, Mumbai Suburban
District vide notification dated 3rd November, 2017. We have
been informed by Mr. Nankani, learned senior advocate
representing respondent no. 4 that Vileparle Mahila School,
figuring at number 4 of the list, has since complied with the
final order passed by the competent authority.
3. Our previous orders required the Collector as well as the
Municipal Corporation for Greater Mumbai (hereafter “MCGM”,
for short) to file affidavits to indicate the steps that have been
taken for demolition of the obstacles in terms of rule 8 of the
1994 Rules. It is the statutory mandate that after a final order
has been passed, it is for the District Collector to take
measures for demolition of any such obstacle that impedes
take-off and landing of the aircrafts at the airport.
4. Mr. Pabale, learned AGP appearing for the District
Collector, Mumbai Suburban has filed an affidavit dated 27th
July, 2022 of a Tehsildar (Leave Reserve) in the Office of the
Collector. It appears therefrom that meetings were convened
by the Collector with the officials of the MCGM. The affidavit
points out that in the city of Mumbai, it is the MCGM being the
planning authority in terms of the provisions of the
Maharashtra Regional and Town Planning Act, 1966, which is
authorized to carry out demolition of structures.
5. An attempt to shift the responsibility of demolition to the
MCGM is clear from a reading of such affidavit. However, we
are not at all impressed thereby. The 1994 Rules are the
special law in this case and once rule 8 envisages that it is the
District Collector who would be responsible for demolition of
obstacles, we do not approve of the Collector’s attempt to
pass on the responsibility to the MCGM. It is indeed true that
in the matter of demolition the Collector may require the
assistance of the MCGM but it is not correct to contend that
demolition has to be carried out by the MCGM. We find from
the affidavit filed by the MCGM that it is willing to provide
such assistance as may be required by the Collector. We,
therefore, hold that it is the Collector who needs to proceed
for demolition of the obstacles in accordance with the
provisions contained in rule 8 of the 1994 Rules.
6. Since 48 obstacles have been identified in course of the
survey undertaken in 2010, as appears from the documents
from pages 111 to 123 of the affidavit of the respondent no.
4, we direct the Collector to personally affirm an affidavit and
indicate the road map as well as plan(s)/step(s)/measure(s)
for the purpose of demolition of those 48 identified obstacles
which do not enjoy any protection of either any appellate
order of the DGCA or a judicial order of this Court. Let such an
affidavit be filed by 19th August, 2022 which shall be placed
before us for our consideration on 22nd August, 2022.
7. Insofar as other obstacles which have been identified by
the respondent no. 4 and forms part of the affidavit at page
238 is concerned, we propose to pass orders after the
response of the Collector is placed on affidavit in terms of this
order.
8. If there are other planning authorities, apart from the
MCGM, whose assistance would be required for the purpose of
demolition of the obstacles, we permit the Collector to seek
such assistance and if any such assistance is sought, all other
planning authorities shall provide requisite assistance to give
full effect to this order which is intended to take the
proceedings to its logical conclusion in terms of rule 8 of the
9. Stand over to 22nd August, 2022.
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The Bombay High Court on Friday held the Collector (Mumbai Suburban) responsible for removing obstacles, and directed her to take immediate steps to demolish 48 obstacles around the Mumbai airport. The obstacles include certain floors of high-rises and the demolition would be undertaken under Rule 8 of the Aircraft Rules 1994. A division bench of Chief Justice Dipankar Datta...
The Bombay High Court on Friday held the Collector (Mumbai Suburban) responsible for removing obstacles, and directed her to take immediate steps to demolish 48 obstacles around the Mumbai airport.
The obstacles include certain floors of high-rises and the demolition would be undertaken under Rule 8 of the Aircraft Rules 1994.
A division bench of Chief Justice Dipankar Datta and Justice MS Karnik was hearing a PIL by Advocate Yashwant Shenoy seeking the removal of all obstacles to ensure air safety.
"48 structures have been identified, Collector to personally affirm and submit an affidavit indicating the steps for demotion of these obstacles by August 19," the court said in the order.
During the hearing on Friday, petitioner in person told the court that the number of obstructions have increased to 498, when authorities are yet to comply with order passed 12 years ago.
According to a 2010 survey of the airport's authority, 137 obstacles/ building structures were found on the approach surfaces of the runways of Chhatrapati Shivaji Maharaj Airport and was submitted to the Director General of Aviation.
One hundred and ten notices were issued under Rule 4 of the 1994 Rules and in 2017 the DGCA passed orders regarding 63 of these structures. While 9 appealed against DGCA's orders, 6 complied with them.
However, 48 obstacles are yet to be removed details of which were furnished to the District Collector in 2017 itself.
Previously the court had asked the BMC and the Collector to inform the court about steps taken for demolition in view of Rule 8 of the 1994 Rules. The District Collector has to take measures for such demolition, the court said.
According to the affidavit filed by AGP Manish Pable, the Collector convened a meeting with the BMC officials and said the latter would have to proceed with the demolitions.
However, the court said it was clear that it was the District Collector's responsibility to proceed with the demolitions under Rule 8 of the 1994 Aircraft Rules.
"An attempt to shift the responsibility is clear. We are not impressed with the affidavit. We don't approve of the Collector passing on the responsibility of demotion to the BMC," the CJ said in the order.
"Collector may require BMC's help, they are willing to provide such help," the CJ added.
The bench then posted the matter for hearing on August 22, 2022. Advocates Amogh Singh and Pranav Thakur appeared for DGCA.
Case Title: Yeshwanth Shenoy V/s. The Union of India
|
This petition is filed by the petitioner-accused No.3
under Section 439 of Cr.P.C., for granting regular bail in
Crime No.59/2022 registered by Nandini Layout Police
Station, Bengaluru for the offences punishable under
Sections 326-A, 448 read with Section 34 of IPC.
2. Heard the arguments of learned counsel for the
petitioner and learned High Court Government Pleader for
the respondent-State.
3. The case of the prosecution is that the
complainant-Devi C.M., gave her statement before the
Police when she was taking treatment in the Victoria
Hospital on 18.03.2022 alleging that she worked as a
B.M.T.C. conductor and after giving voluntary retirement
to the service, she is working as a Drama Artist. She came
in contact with accused No.1 and due to her relationship
with accused No.1, the wife of accused No.1 said to be left
him. Therefore, accused No.1 is having enmity with the
victim. Subsequently, accused No.3-the present petitioner
who is also a drama artist and a competitor, wants to
destroy the face of the victim to disfigure her, thereby, she
will get chances in the drama. For the same, she contacted
accused No.2 and later, accused Nos.1 to 3 colluded
together and decided to throw acid on the face of the
victim, thereby, her face would become ugly and she will
loose the chance as drama artist. Therefore, accused No.2
assured to pay Rs.10,000/- to accused No.1 but accused
No.1 did not agree to throw acid. Later, accused No.2
along with accused No.1 went in a car and stopped the car
little away from the house of victim on 18.03.2022 at 4.30
a.m. and accused No.1 went to the house of the victim and
when she was sleeping in the hall, he thrown the cleaning
acid on the face and the back of the victim and ran away.
After verifying the CCTV footage, accused Nos.1 to 3 were
arrested and they are in custody. The bail petition of
accused No.3 is rejected. Hence, she is before this Court.
4. Having heard the arguments and on perusal of
the records, which reveals that there was enmity between
accused No.1, victim and accused No.3, therefore, accused
Nos.1 to 3 colluded together and at the instance of this
petitioner, accused Nos.1 and 2 purchased the cleaning
acid and accused No.1 has poured the acid on the face of
the victim when she was sleeping in the house at about
4.30 a.m. The photograph and medical certificate shows
14% superficial burn injuries on the face as well as on the
back of the victim and she has already discharged from the
hospital. This petitioner is a woman and co-drama artist
was arrested and is in custody from 20.03.2022. The
investigation is completed and charge-sheet has been
filed. The alleged offence is punishable with not less than
10 years and extended to life and triable by the Court of
Sessions. It is an unfortunate incident that a woman taking
revenge against another woman by throwing acid through
accused Nos.1 and 2 to disfigure the victim lady in respect
of the competition in the drama field. However, by looking
to the superficial injury of 14% sustained by the victim,
this petitioner is also a woman, a co-drama artist and in
custody for almost more than five months. Considering the
facts and circumstances of the case, the co-accused are
already arrested and they are in jail, therefore, by
imposing certain stringent conditions, if bail is granted to
the petitioner, no prejudice would be caused to the case of
the prosecution.
5. Accordingly, criminal petition is allowed.
The Committal Court is directed to release the
petitioner-accused No.3 on bail in Crime No.59/2022
registered by Nandini Layout Police Station for the offences
punishable under Sections 326A, 448 read with Section 34
of IPC, subject to the following conditions:
(i) Petitioner-accused No.3 shall execute a
personal bond for a sum of
Rs.5,00,000/- (Rupees Five Lakh only)
with two sureties for the likesum to the
satisfaction of the trial Court/Committal
(ii) Petitioner shall not indulge in similar
offences strictly;
(iii) Petitioner shall not tamper with the
prosecution witnesses directly/
(iv) Petitioner shall take trial without
causing any delay.
(v) Petitioner shall not leave the jurisdiction
without prior permission of the Court.
If any of the above conditions are violated, the
prosecution is at liberty to seek cancellation of this bail
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The Karnataka High Court has granted bail to a woman who allegedly, with a view to take revenge and spoil another woman co-artist's chances in getting roles in dramas, threw acid on her face.
A single judge bench of Justice K Natarajan allowed the petition filed by Swathi and directed the Committal Court to release her on bail in case registered by Nandini Layout Police Station for the offences punishable under Sections 326A, 448 read with Section 34 of IPC, on execution of a personal bond for a sum of Rs.5,00,000, with two sureties for the like sum.
The Petitioner is named as the third accused in the FIR. As per prosecution, she colluded with accused no. 1 and 2 and the trio decided to throw acid on the victim's face to make her 'ugly'. In pursuance thereof, it is alleged that the trio drove to her house where accused No.1 threw cleaning acid on her face and the back while she was sleeping and ran away.
After verifying the CCTV footage, accused Nos.1 to 3 were arrested and they are in custody.
Findings:
At the outset, the Court remarked that it is unfortunate that a woman, in order to take revenge against another woman, threw acid on her through accused Nos.1 and 2 to disfigure her as a competition.
However, it allowed the bail plea, keeping in view the "superficial injury" sustained by the victim and the duration of Petitioner's custody.
"This petitioner is also a woman, a co-drama artist and in custody for almost more than five months. Considering the facts and circumstances of the case, the co-accused are already arrested and they are in jail, therefore, by imposing certain stringent conditions, if bail is granted to the petitioner, no prejudice would be caused to the case of the prosecution."
The Court also said that investigation in the matter is complete and a charge-sheet has been filed.
Case Title: Swathi v. State of Karnataka
Case No: Criminal Petition no 8209/2022
Date of Order: 19-09-2022
Appearance: Advocate A Derick Anil for Advocate Gangadhar for petitioner; HCGP Krishna Kumar K.K
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1. The petitioner/ husband is aggrieved by the Order dated 21st,
February, 2022 directing him to pay maintenance in the sum of ₹20,000/-
per month to the respondent/wife and daughter Varnika Singh under Section
24 of Hindu Marriage Act,1955 (hereinafter referred to as the Act).
2. Facts in brief are that appellant and respondent got married according
to Hindu customs and rites on 24th February, 2011 in Ramgarh, Jharkhand
and were blessed with a daughte February, 2015. The
relationship between the parties deteriorated over a period of time, but the
watershed moment came in their life in May, 2016, when the appellant came
MAT.APP. (F.C.) 38/2022 Page 1 of 6
to know about the adulterous relationship of his wife, the respondent with
her cousin brother. He left the matrimonial home on 22nd May, 2016 and
shifted with his brother. The appellant/husband made a complaint dated 27th
May, 2016 to SHO, PS Indirapuram about the adulterous acts of the
respondent. Thereafter, he filed a Divorce Petition being HMA No.699 of
2016 (renumbered as HMA No.1089 of 2018) on the ground of cruelty and
adultery which is pending adjudication before the Family Court, East,
3. The respondent, on the other hand, filed a complaint being CT
No.59546 of 2016 under Section 12 of The Protection of Women Against
Domestic Violence Act, 2005 which is pending adjudication before the
Mahila Court, East, Karkardooma, Delhi. She has also filed a FIR No.1151
of 2016 P.S. Indirapuram under Section 498A IPC.
4. The respondent in divorce petition, filed an application under Section
24 of the Act dated 24th January, 2017 claiming maintenance for herself and
her daughter in the sum of ₹45,000/- per month. The learned Judge, Family
Court assessed the income of the appellant to be ₹1,09,000/- per month and
granted a sum of ₹20,000/- per month as maintenance for the respondent and
the daughter w.e.f the date of filing of the application till the date of disposal
of the petition.
5. The appellant has challenged the Order on the ground that the Ld.
Family Judge has erred in assessing the income of the appellant as
₹1,09,000/- per month. He had lost his job and is presently working as a
freelance sales professional having an income of approximately ₹40,000/-
per month. On the other hand, the respondent/wife is a highly educated
woman and has been working in the past. She, in her Income-Expenditure
MAT.APP. (F.C.) 38/2022 Page 2 of 6
affidavit dated 22nd January, 2022 has disclosed that she had been earning
₹10,000 to 12,000/- per month till lockdown i.e., till March, 2020. In fact,
the respondent has not disclosed her correct employment status.
6. Heard submissions.
7. Essentially the challenge in the present appeal is to the quantum of
maintenance fixed by the learned Family Judge. Before venturing into the
facts it may be appropriate to consider that the provision for maintenance
has been made in various Acts. One of the earliest enactments is Code of
Criminal Procedure, Section 125 of which provided for maintenance to wife,
dependent children and parents upto ₹500/- per month though by
Amendment Act 50 effective from 24th September, 2001, the cap of ₹500/-
has been removed. The reason for providing maintenance under Code of
Criminal Procedure essentially was to address destitution and vagrancy
which many a times, drives a person in desperation to commit crime. The
objective was essentially to provide basic subsistence for survival as a
preventive measure against commission of crime. The maintenance under
Protection of Women Against Domestic Violence Act, 2005 is to give
immediate succour to a women who is a victim of domestic violence. It is
under Hindu Maintenance and Adoption Act, 1956 that the parties may
establish their respective claims to maintenance according to their status
after adducing evidence in a trial. The objective of Section 24 of Hindu
Marriage Act, 1955 is not to equalize the income of the spouses but is only
intended to ensure that when matrimonial proceedings are filed, either party
should not suffer due to paucity of a source of income and is provided
maintenance to tie over the litigation expenses and also to meet the daily
needs of the spouse, as has been held in the case of K.N. Vs. R.G 2019 SCC
MAT.APP. (F.C.) 38/2022 Page 3 of 6
8. In the light of above stated objective of Section 24 of the Act, it may
be considered if the impugned order requires interference. The respondent
had claimed the income of the appellant to be more than ₹1,00,000/- per
month. The learned Family Judge has mentioned that there were three
affidavits of Income and Expenditure filed by the appellant. In his affidavit
dated 2nd March, 2019 he had stated that he was doing a private job and
earning ₹42,000/- per month. As per his second affidavit dated 19th
February, 2018 his income is shown to be ₹65,000/- per month. In his latest
affidavit dated 15th February, 2022 the appellant has claimed that he lost his
job in October, 2022 and now is earning about ₹40,000/- per month by
working as freelance sales professional. Ld. Judge, Family Court referred to
the statement of RBL Bank of the appellant annexed along with the
subsequent affidavit dated 15th February, 2022 which reflected his salary as
₹82,410/- for the months of May 2021 and July, 2021. The Statement of
Account of Axis Bank of the appellant reflected a credit of ₹1,09,000/- as
salary on 13th January, 2022 which had not been denied by the appellant.
The learned Judge, Family Court thus, rightly concluded the income of the
appellant as ₹1,09,000/- per month as borne out from his own documents.
9. The appellant has also claimed his monthly expenditure to be
₹52,000/- per month which includes the house rent in the sum of ₹9,900/-
per month and other medical, grocery and litigation expenses. In addition,
he has claimed the responsibility of his aged parents and their medical bills.
However, it has been pointed out by the respondent that father of the
appellant is a pensioner getting pension and all the medical bills of the
parents are being reimbursed by his erstwhile employer which has again not
MAT.APP. (F.C.) 38/2022 Page 4 of 6
been seriously refuted by the appellant. Moreover, even if it is accepted that
appellant has to take care of the parents then too, he cannot deny his
responsibility to maintain his wife and the daughter.
10. The appellant has claimed that the daughter is not residing with the
respondent but with the maternal grandparents in Ramgarh, Jharkhand. Even
if the daughter is living with the grandparents, it cannot be said that the
respondent stands absolved of his responsibility towards the child.
11. The respondent is M.Sc., residing in a rented accommodation in
Shakarpur, Delhi since the date of separation. She has claimed a monthly
expenditure of herself to be around ₹50,000/- per month and about ₹25,000/-
for the daughte has also disclosed that she is a
freelance content writer and before lockdown was getting about ₹10,000 to
₹12,000/- per month, but she has not been able to do any work on account of
lock down. This is not a case where the respondent who has done M.Sc is
sitting idle out of laziness or spite, but has been utilizing her skill and
qualifications to work as freelance content writer and was earning about
₹10,000 to ₹12,000/- pr month. However, the earnings cannot be considered
sufficient for her to meet the routine expenditure and also other incidental
expenses of litigation.
12. The respondent may be qualified and may be earning about ₹10,000
to ₹12,000/- per month from her freelance work and but by no parameter can
the earnings of the respondent be considered sufficient to meet the day to
day expenditure of herself and the daughter and also the litigation expenses.
Even after taking into consideration the respondent’s earnings, then too
₹20,000/- per month as awarded by the learned Family Judge for monthly
maintenance for both the respondent as well as the daughter, cannot be
MAT.APP. (F.C.) 38/2022 Page 5 of 6
13. There is no merit in the present appeal which is hereby dismissed.
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The Delhi High Court has observed that a father cannot deny his responsibility to maintain his wife and daughter even if he has to take care of his parents. It thus upheld a Family Court order directing him to give maintenance to the wife and daughter.A Bench of Justice Mukta Gupta and Justice Neena Bansal Krishna added that merely because the daughter is living with her maternal grandparents,...
The Delhi High Court has observed that a father cannot deny his responsibility to maintain his wife and daughter even if he has to take care of his parents. It thus upheld a Family Court order directing him to give maintenance to the wife and daughter.
A Bench of Justice Mukta Gupta and Justice Neena Bansal Krishna added that merely because the daughter is living with her maternal grandparents, it cannot be said that the father stands absolved of his responsibility towards his child.
The Court was dealing with a plea filed by a husband challenging the order passed by a Family Court dated 21st February, 2022 directing him to pay maintenance in the sum of Rs. 20,000 per month to the wife and daughter under sec. 24 of Hindu Marriage Act, 1955.
The appellant husband and respondent wife got married on 24th February, 2011 and were blessed with a daughter on 5th February, 2015. The relationship between the parties deteriorated over a period of time. However, in May, 2016, the appellant husband came to know that the wife was having an adulterous relationship with her cousin brother.
The husband had then left the matrimonial home on 22nd May, 2016 and shifted with his brother. Thereafter, he filed a Divorce Petition on the ground of cruelty and adultery which was pending adjudication before the Family Court.
The respondent wife, on the other hand, filed a complaint under sec. 12 of the Protection of Women Against Domestic Violence Act, 2005 which was pending adjudication before the Mahila Court.
The respondent wife, in divorce petition, filed an application under sec. 24 of the Act claiming maintenance for herself and her daughter in the sum of Rs. 45,000 per month. The Family Court assessed the income of the appellant to be Rs. 1,09,000 per month and granted a sum of Rs. 20,000 per month as maintenance for the respondent and the daughter.
It was thus the case of the appellant husband that he had lost his job and was presently working as a freelance sales professional having an income of approximately Rs. 40,000 per month.
The Court said that the reason for providing maintenance under Code of Criminal Procedure was to address destitution and vagrancy which many a times, drives a person in desperation to commit crime.
"The objective was essentially to provide basic subsistence for survival as a preventive measure against commission of crime. The maintenance under Protection of Women Against Domestic Violence Act, 2005 is to give immediate succour to a women who is a victim of domestic violence," the Court said.
It added that under Hindu Maintenance and Adoption Act, 1956, the parties may establish their respective claims to maintenance according to their status after adducing evidence in a trial.
"The objective of Section 24 of Hindu Marriage Act, 1955 is not to equalize the income of the spouses but is only intended to ensure that when matrimonial proceedings are filed, either party should not suffer due to paucity of a source of income and is provided maintenance to tie over the litigation expenses and also to meet the daily needs of the spouse," the Court said.
Noting that the appellant had also claimed his monthly expenditure to be Rs. 52,000 per month and claimed the responsibility of his aged parents and their medical bills, it was pointed by the respondent wife that father of the appellant was a pensioner getting pension and that all the medical bills of the parents were being reimbursed by his erstwhile employer.
"Moreover, even if it is accepted that appellant has to take care of the parents then too, he cannot deny his responsibility to maintain his wife and the daughter," the Court said.
Further noting that the appellant father had claimed that the daughter was not residing with the respondent wife but was living with the maternal grandparents, the Court observed:
"Even if the daughter is living with the grandparents, it cannot be said that the respondent stands absolved of his responsibility towards the child."
The Court noted that while the respondent wife may be qualified and may be earning about Rs. 10,000 to Rs. 12,000 per month from her freelance work, however the said earnings cannot be considered sufficient to meet the day to day expenditure of herself and the daughter and also the litigation expenses.
"This is not a case where the respondent who has done M.Sc is sitting idle out of laziness or spite, but has been utilizing her skill and qualifications to work as freelance content writer and was earning about ₹10,000 to ₹12,000/- pr month. However, the earnings cannot be considered sufficient for her to meet the routine expenditure and also other incidental expenses of litigation," the Court said.
The Court thus concluded that the amount of monthly maintenance awarded by the Family Court for both the respondent wife as well as the daughter cannot be termed as exorbitant or excessive.
The plea was accordingly dismissed.
Case Title: X v. Y
|
This case is referred to our Hon’ble High Court
under Section 113 read with Order XLVI Rule 1 of
the Code of Civil Procedure, 1908, to consider the
following aspects:
1) To declare sub-sections (2) and (3) of Section 23-
A of the Karnataka Civil Courts Act, 1964
[inserted vide Karnataka Civil Courts (Second
28/1978 with effect from 1/2/1979)], are ultra
vires the Constitution of India.
2) To consider if the Notification bearing No. GOB
460/78 issued by our Hon’ble High Court,
published in the Gazette on 29-03-1979, clothes
the powers of a District Judge under the Indian
Succession Act, 1925, upon Senior Civil Judges or
Civil Judges in the State of Karnataka, in respect
of issuance of Probates and Letters of
Administration, in view of the divergent views
expressed in the decisions of co-ordinate benches
of our Hon’ble High Court.”
2. Brief facts of the case are, one
Smt.Boppanda Boji Kalappa executed her Will on
May 3, 1995. First respondent filed an application
in P & SC No.2/1996 on the file of learned Principal
District Judge, Kodagu, Madikeri under Section 276
of the Indian Succession Act, 19951, for grant of
Probate. Upon being contested, probate petition
was converted as O.S. No.1/1997.
3. On December 11, 2003, the suit was
transferred to the Court of Civil Judge, Senior
Division, Kodagu on the ground of valuation and it
was re-numbered as O.S. No.3/2004.
4. On February 28, 2006, as per the order
passed by the learned District Judge, the case was
again transferred to the Court of District Judge,
Madikeri and re-numbered as O.S. No.7/2006.
‘Indian Succession Act’ for short
5. By order dated February 2, 2013, the
suit was again transferred to the Court of Senior
Civil Judge, Madikeri, in view of Notification No.
GOB 460/78 issued by this Court under
Section 23-A of the Karnataka Civil Courts Act,
19642 and the suit was re-numbered as O.S.
was decreed by the learned Senior Civil Judge,
Madikeri holding that the Will was proved in favour
of first respondent. Feeling aggrieved, the first
defendant in the suit filed R.A. No.11/2017 in the
Court of First Additional District Judge, Kodagu,
7. It was contended on behalf of the
appellant before the learned District Judge that the
Court of Senior Civil Judge did not have jurisdiction
‘Civil Courts Act’ for short
to issue the Probate of the Will because, as per
Notification No.GOB 460/78, the Civil Judges and
Senior Civil Judges had jurisdiction to adjudicate
upon the cases relating to issuance of Succession
Certificates. Therefore, in matters relating to
issuance of Probate the jurisdiction vested with the
8. It was contended on behalf of the first
respondent that under Section 23-A of the Civil
Courts Act, the High Court is empowered to invest
all or any powers of the District Judge under the
Indian Succession Act. The amendment
incorporating Section 23-A in the Civil Courts Act
had received the accent of the President on
November 22, 1978. By the Notification No. GOB
560/1978, all Civil Judges and Senior Civil Judges
were invested with the powers of the District Judge.
9. Before the learned District Judge,
following authorities were cited:
• B.R. Jayanthi Vs. Radhamma and others3
wherein, the challenge to the jurisdiction of
Civil Judge on a transferred Probate Petition
was negatived;
• B.R. Jayanthi Vs. Radhamma and others4
wherein, this Court had relegated the
appellants therein to file an appeal before the
learned District Judge in view of Section 23-A
of the Act and the Notification issued by this
Ltd., and others5 wherein, the decision in
ILR 2008 KAR 4612 was followed.
10. In view of the above, the learned District
Judge framed following questions for his
1) Whether sub-sections (2) and (3) of Section 23-A
of the Karnataka Civil Courts Act, 1964 [inserted
vide Karnataka Civil Courts {Second
RFA No.1324/2012 decided on 13.12.2012.
W.P. No.39334/2015 decided on 23.09.2015
28/1978 with effect from 1/2/1979)], are ultra
vires the Constitution of India?
2) Whether the Notification bearing No. GOB 460/78
issued by our Hon’ble High Court, published in
the Gazette on 29-03-1979, clothes the powers
of a District Judge under the Indian Succession
Act, 1925, upon Senior Civil Judges or Civil
Judges in the State of Karnataka, in respect of
issuance of Probates and Letters of
and answered the first question in the affirmative
and held that the second question requires
consideration in view of divergent views expressed
by this Court.
11. Shri. A.V. Gangadharappa, learned
Advocate for the appellant submitted that under
Section 276 of the Indian Succession Act, 1925, an
application for Probate has to be filed before the
learned District Judge and it was rightly filed by the
first respondent at the first instance. However, in
view of the Notification dated March 12, 1979, the
suit was transferred to the Court of the learned
Senior Civil Judge, Madikeri and the same has been
decreed. Placing reliance on Mrs. Joyce Enet Ugare
Vs. James I. P. Roche6, he submitted that the
power to invest jurisdiction in any inferior Courts in
grade to the Court of District Judge is only in
relation to proceedings for issue of Succession
Certificate provided under Part-X of the Indian
Succession Act. Therefore, the judgment and
decree passed by the learned Senior Civil Judge is a
nullity. Consequently, the appeal filed before the
learned District Judge is not maintainable and this
Court may direct the learned District Judge to
conduct the proceedings denova.
12. In reply, Smt. Laksha Kalappa for the
respondents submitted that the Notification issued
in the year 1979 is under Section 23-A of the Civil
Courts Act. By the said Notification, all powers of
the District Judge have been conferred upon the
M.F.A. No.3618/2010 decided on 19.06.2012 (para 8)
Civil Judges. Therefore, the judgment and decree
passed by the Senior Civil Judge is in accordance
with law. Consequently, the appeal is maintainable
before the learned District Judge.
13. We have carefully considered the
Reference order, the submissions of learned
Advocates on both sides and perused the records.
14. Section 388 of the Indian Succession Act
reads as follows:
“388. Investiture of inferior courts with
jurisdiction of District Court for purposes of this
Act.— (1) The State Government may by notification
in the Official Gazette, invest any court inferior in
grade to a District Judge with power to exercise the
functions of a District Judge under this Part. (2) Any
inferior court so invested shall, within the local limits
of its jurisdiction, have concurrent jurisdiction with
the District Judge in the exercise of all the powers
conferred by this Part upon the District Judge, and
the provisions of this Part relating to the District
Judge shall apply to such an inferior court as if it
were a District Judge: Provided that an appeal from
any such order of an inferior court as is mentioned in
sub-section (1) of section 384 shall lie to the District
Judge, and not to the High Court, and that the
District Judge may, if he thinks fit, by his order on
the appeal, make any such declaration and direction
as that sub-section authorises the High Court to
make by its order on an appeal from an order of a
District Judge. 94 (3) An order of a District Judge on
an appeal from an order of an inferior Court under
the last foregoing sub-section shall, subject to the
provisions as to reference to and revision by the
High Court and as to review of judgment of the Code
of Civil Procedure, 1908 (5 of 1908), as applied by
section 141 of that Code, be final. (4) The District
Judge may withdraw any proceedings under this Part
from an inferior court, and may either himself
dispose of them or transfer them to another such
court established within the local limits of the
jurisdiction of the District Judge and having authority
to dispose of the proceedings. (5) A notification
under sub-section (1) may specify any inferior court
specially or any class of such courts in any local
area. (6) Any Civil Court which for any of the
purposes of any enactment is subordinate to, or
subject to the control of, a District Judge shall, for
the purposes of this section, be deemed to be a
court inferior in grade to a District Judge.”
15. Section 23-A of the Karnataka Civil
Courts Act, 1964 reads as follows:
“23-A. Investiture of subordinate Courts
with jurisdiction of District Court under the
(1) The High Court may, by notification, invest any
Senior Civil Judge or Civil Judge, within such local
limits and subject to such pecuniary and other
limitations as may be specified in such notification,
with all or any of the powers of a District Judge under
the Indian Succession Act, 1925 (Central Act 39 of
(2) Any Senior Civil Judge or Civil Judge invested
with powers under sub-section (1) shall have
concurrent jurisdiction with the District Judge in the
exercise of the powers conferred by the said Act
upon the District Judge, and the provisions of the
said Act relating to the District Judge shall apply to
such Senior Civil Judge or Civil Judge, as the case
may be, as if he were the District Judge:
Provided that every order made by the Senior
Civil Judge or the Civil Judge by virtue of the powers
conferred upon him under sub-section (1) shall be
subject to appeal.–
(i) to the District Court, when the amount or value of
the subject matter is less than twenty thousand
(ii) To the High Court, in other cases.
(3) Every order of the District Judge passed on
appeal under the proviso to sub-section (2) shall be
subject to appeal to the High Court under the rules
contained in the Code of Civil Procedure, 1908,
applicable to appeals from appellate decrees.”
16. Under Section 23-A of the Civil Courts
Act, the investiture of power is regulated by the
High Court. The reference made by the learned
District Judge has stemmed out of the divergent
views noted above.
17. It is relevant to record that in Circular
No. R(J)5/2020 dated January 20, 2020, it has been
ordered that the Notification No. GOB 460/78 dated
March 12, 1979 has limited scope and invests the
power in Senior Civil Judges only for issuance of
Succession Certificates under Part-X of the Indian
Succession Act and not for Probate.
18. Thus, the conflict in the judicial
pronouncements has been resolved by the Circular
19. Hence, both questions referred are
answered in the negative.
20. Incidentally, it was also argued by Smt.
Laksha Kalappa that the learned District Judge be
directed to proceed further to hear the arguments
of the parties as evidence has been adduced and
the same is on record.
21. Admittedly, the proceedings were
initiated before the learned District Judge and it was
submitted at the Bar that some evidence has been
recorded in that Court. The evidence recorded in
the proceedings before learned Senior Civil Judge is
without jurisdiction. Therefore, the same cannot
looked into. In view of the Circular dated January
20, 2020, fresh proceedings will have to be
conducted before the learned District Judge.
22. In view of the above, the following:
(a) Questions No. 1 and 2 referred by the
learned District Judge are answered in the
(b) Judgment and decree passed in O.S.
No.33/2013 on the file of the Senior Civil Judge is
set-aside and the said suit shall stand transferred to
the Court of learned Principal District Judge,
(c) The learned Principal District Judge or
the Additional District Judge to whom the file is
made over, shall commence fresh proceedings from
the stage of transfer of file from the Court of
District Judge to the Court of Senior Civil Judge,
Madikeri and complete the same as expeditiously as
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The Karnataka High Court recently clarified that the notification issued by the High Court in the year 1979, has limited scope and invests the power in Senior Civil Judges only for issuance of Succession Certificates under Part-X of the Indian Succession Act and not for Probate.
A division bench of Justice P.S. Dinesh Kumar and Justice M.G. Uma issued the clarification on a reference made to the court by the First Addl. District Judge, Kodagu, Madikeri.
The reference made to the high court was seeking clarification on two issues:
1) To declare sub-sections (2) and (3) of Section 23- A of the Karnataka Civil Courts Act, 1964 [inserted vide Karnataka Civil Courts (Second Amendment) Act, 1978 (Karnataka Act No. 28/1978 with effect from 1/2/1979)], are ultra vires the Constitution of India
2) To consider if the Notification bearing No. GOB 460/78 issued by our Hon'ble High Court, published in the Gazette on 29-03-1979, clothes the powers of a District Judge under the Indian Succession Act, 1925, upon Senior Civil Judges or Civil Judges in the State of Karnataka, in respect of issuance of Probates and Letters of Administration, in view of the divergent views expressed in the decisions of coordinate benches of our Hon'ble High Court.
The High Court answered both the above questions in the negative.
The District Judge had made the reference to the High Court as divergent views on the issue were made in the following cases—B.R. Jayanthi Vs. Radhamma and others ILR 2008 KAR 4612, wherein, the challenge to the jurisdiction of Civil Judge on a transferred Probate Petition was negatived. B.R. Jayanthi Vs. Radhamma and others RFA No.1324/2012 decided on 13.12.2012, wherein, the High Court had relegated the appellants therein to file an appeal before the District Judge in view of Section 23-A of the Act and the Notification issued by the High Court Court. The order in the case of S.N. Koushik Vs. M/s. Kanva Industries Pvt. Ltd., and others W.P. No.39334/2015 decided on 23.09.2015, wherein, the decision in ILR 2008 KAR 4612 was followed.
Petitioner arguments:
Advocate A.V. Gangadharappa, for the appellant submitted that under Section 276 of the Indian Succession Act, 1925, an application for Probate has to be filed before the l District Judge and it was rightly filed by the first respondent at the first instance. However, in view of the Notification dated March 12, 1979, the suit was transferred to the Court of the Senior Civil Judge, Madikeri and the same has been decreed.
Further he said, "The power to invest jurisdiction in any inferior Courts in grade to the Court of District Judge is only in relation to proceedings for issue of Succession Certificate provided under Part-X of the Indian Succession Act. Therefore, the judgment and decree passed by the learned Senior Civil Judge is a nullity. Consequently, the appeal filed before the learned District Judge is not maintainable and this Court may direct the learned District Judge to conduct the proceedings denova."
Respondent arguments:
Advocate Laksha Kalappa for the respondents submitted that the Notification issued in the year 1979 is under Section 23-A of the Civil Courts Act. By the said Notification, all powers of the District Judge have been conferred upon the Civil Judges. Therefore, the judgment and decree passed by the Senior Civil Judge is in accordance with law. Consequently, the appeal is maintainable before the learned District Judge.
Court findings
The bench referring to section 23-A of the Karnataka Civil Courts Act, 1964 said, "The investiture of power is regulated by the High Court. The reference made by the learned District Judge has stemmed out of the divergent views noted above."
It said, "It is relevant to record that in Circular No. R(J)5/2020 dated January 20, 2020, it has been ordered that the Notification No. GOB 460/78 dated March 12, 1979 has limited scope and invests the power in Senior Civil Judges only for issuance of Succession Certificates under Part-X of the Indian Succession Act and not for Probate. Thus, the conflict in the judicial pronouncements has been resolved by the Circular dated January 20, 2020. Hence, both questions referred to are answered in the negative."
Further in regards to the case at hand before the First Addl. District Judge, Kodagu, Madikeri, the bench said, "The evidence recorded in the proceedings before learned Senior Civil Judge is without jurisdiction. Therefore, the same cannot be looked into. In view of the Circular dated January 20, 2020, fresh proceedings will have to be conducted before the learned District Judge."
Accordingly it directed the Judgment and decree passed in O.S. No.33/2013 on the file of the Senior Civil Judge is set-aside and the said suit shall stand transferred to the Court of learned Principal District Judge, Madikeri, Kodagu. The learned Principal District Judge or the Additional District Judge to whom the file is made over, shall commence fresh proceedings from the stage of transfer of file from the Court of District Judge to the Court of Senior Civil Judge, Madikeri and complete the same as expeditiously as possible.
Case Title: BOPPANDA N. KUSHALAPPA v. BALEYADA K. CHERAMANNA and Others
Case No: C.R.C No.1 OF 2019
Date of Order: 22ND DAY OF APRIL, 2022
Appearance: Advocate A.V. GANGADHARAPPA for petitioner; Advocate B. LAKSHA KALAPPA for respondents
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Profession: Paan shop and water supply business.
Profession: Auto driver.
R/o House No.B262, Gali No.7, Babu Nagar, near Shiv Mandir,
Delhi. Profession: Hardware shop.
Profession: Cloth selling at Mangalore, Karnataka.
Profession: Motorcycle repairing.
R/o House No.F14, Gali No.1, Babu Nagar, main Brijpuri Road,
Profession: Electricity shop.
Present: Shri R.C.S Bhadoria, Ld. Special PP for the State alongwith
Shri Salim Malik, Ld. Counsel for the accused persons namely
and Mohd. Tahir.
Shri Dinesh Tiwari, Ld. Counsel for accused persons namely Mohd.
Shahnawaz @ Shanu @ Ansari, Azad and Parvez.
Shri Abdul Gaffar, Ld. Counsel for accused persons namely
Mohd.Faisal and Rashid @ Monu.
The matter is listed for consideration on charge today. I have heard
arguments advanced at bar by both the sides and perused the entire material on
2. (i) The facts of the case in brief required for the present are that FIR in
the matter was registered on 04.03.2020 on a written complaint dated 01.03.2020,
made by Brijpal, S/o Shri Binda Prasad, wherein he stated that his rented shop by
the name of “Kapil Rickshaw Battery”, bearing No.A5 (adjacent to Priyanka
Copy House), situated in Chaman Park, in front of DRP Public School, main
Brijpuri Road, Delhi110094 was looted by the riotous mob on 25.02.2020 at
(ii) Thereafter, during the course of investigation, on 05.04.2020, IO
clubbed two more complaints (both dated 24.02.2020), made by Shri Diwan
Singh, S/o Shri Dashrath Singh regarding breaking opening the shutters and loot
at his two shops, i.e shop No.4 (Shivam Cycle Store) and shop No.5 (Shivam
General Store), situated at main Brijpuri Road, Chaman Park by the riotous mob
3. The learned defence counsel(s) have made a strong pitch by
submitting that there is no incriminating material available on record against the
accused persons and as such they are entitled for discharge in the matter on
(i) It is argued that the accused persons have been falsely implicated in
the matter by the investigating agency, being resident(s) of the same
area/locality. Their false implication is further evident from the fact that
there is an “unexplained delay” of about eight (08) days in registration of
FIR, as the alleged incident took place on 25.02.2020; whereas, the case
FIR in the matter was registered on 04.03.2020.
(ii) Both the complainants have neither specifically named any of the
accused persons in their respective written complaints nor any specific role
has been assigned to them in the matter. Even complainant Brij Pal has
not named the accused persons in his two supplementary statements dated
04.03.2020 and 09.04.2020 respectively. As a sequel thereto, it is
contended that at the instance of investigating agency, complainant Diwan
Singh had later on falsely implicated accused persons namely Mohd.
Shahnawaz @ Shanu, Ashraf Ali, Rashid @ Raja and Mohd. Faisal vide
his supplementary statement recorded under Section 161 Cr.P.C in the
matter on 09.04.2020, which is neither here nor there. No recovery of any
sort has been effected from any of the accused persons.
(iii) It is further argued that accused persons were initially arrested in
case FIR No.39/2020, PS Gokalpuri (Dilbar Negi murder case) and
thereafter merely on the basis of disclosure statement(s) made by them in
the said case, their arrest has been formally effected in the instant matter.
(iv) It is contended that the police has wrongly clubbed two incidents of
different dates in the matter, in as much as the alleged incident as per
complaint(s) made by complainant Diwan Singh occurred on 24.02.2020;
whereas, as per complaint of Brijpal his shop was looted by the riotous
mob on 25.02.2020. The FIR in the matter should have been registered on
the complaint(s) dated 24.02.2020 of Diwan Singh and not on the
complaint dated 01.03.2020, made by complainant Brij Pal.
(v) It is next contended that even the four public witnesses namely
Pawan Singh, Sharad Singh, Vipin and Mahesh, all of whom had made call
at number 100 on the date of incident(s) have not specifically named any
of the accused persons vide their respective statement(s) recorded under
Section 161 Cr.P.C on 09.07.2020.
(vi) It is next contended that Constable Sanjay, Constable Vipin and HC
Hari Babu are “planted witnesses” because if they had witnessed the
incident, then why they didn’t report the matter to the Police Station on
24.02.2020 itself and waited till the recording of their alleged statements
under Section 161 Cr.P.C on 08.04.2020 by the IO. No cogent/plausible
explanation for the delay in recording the statements of said police
witnesses has come from the side of prosecution.
(vii) Lastly, it is very strenuously argued that there is no electronic
evidence available against the accused persons in the form of CCTV
footage/videoclip to nail their presence at the spot/SOC at the relevant
time .
4. Per contra, the learned Special PP for the State has very vehemently
argued that on 24.02.2020 some unscrupulous elements had hatched a large scale
conspiracy and carried out riots in the area of NorthEast District of Delhi. The
communal riots continued for two days unabated, resulting in large number of
deaths of innocent persons and loss of property worth crores of rupees. It is
submitted that initially all the accused persons were arrested in case FIR
No.39/2020, PS Gokalpuri and thereafter their formal arrest was effected in the
instant matter.
5. The evidence available against the accused persons has been
(a) Role of accused They have been found to be “active members of the
persons riotous mob” on the date and time of incident that
took active participation in rioting, vandalizing and
arson in the area/locality in question on the date(s)
and time of incident.
(b) Ocular evidence (i) Complainant Diwan Singh vide his supplementary
statement dated 09.04.2020 had categorically named/
identified four accused persons namely Mohd.
Shahnawaz @ Shanu, Ashraf Ali, Rashid @ Raja and
Mohd.Faisal in the matter.
categorically named/identified by PW Shyam Sunder
vide his statement recorded under Section 161 Cr.P.C
on 10.04.2020.
(iii) Furthermore, the presence of accused persons at
the spot/SOC on the date(s) and time of incident(s)
(No.1840/NE), Constable Sanjay (No.1988/NE) and
Constable Vipin (No.1997/NE), vide their statements
recorded under Section 161 Cr.P.C in the matter on
87.04.2020. The said police witnesses were lying
posted as “Beat Officers” in the area/locality in
question at the relevant time.
(c) Technical Evidence The CDR location qua the mobile phones of accused
persons have been found near the spot/SOC at the
relevant time.
(d) Involvement in Besides the case in hand, all the accused persons are
other cases involved in several other cases of rioting in the area,
including case FIR No.39/2020, PS Gokalpuri
(Dilbar Negi murder case).
6. (i) As regards the contention of the learned counsel(s) that there is a
delay in recording of FIR in the matter, it is argued that the riots at or around the
scene of crime were “very fierce” from 23.02.2020 till 26.02.2020. Several
persons were injured; public and private property(ies) worth crores of rupees
were vandalized, arsoned and torched. There was curfew like atmosphere at or
around the area. The police officials of PS Gokalpuri remained busy in law and
order duty and as such, delay in recording of FIRs took place.
(ii) As regards the complainants not specifically naming the accused
persons in their respective written complaints, it is submitted that same is not of
much significance as complainant Diwan Singh has categorically named four
accused persons vide his supplementary statement dated 09.04.2020. Even PW
Shyam Sunder has categorically identified the accused persons vide his statement
dated 10.04.2020 and the same finds corroboration from the statements of police
witnesses recorded in the matter, who were lying posted as ‘Beat Officers” in the
area/locality in question at the relevant time. As a sequel thereto, it is contended
that the peculiarity of NorthEast Delhi communal riots is such that the
“atmosphere of terror” remained for weeks together, people were highly scared
and it may be possible that due to highly surcharged and tense atmosphere,
complainant(s) might have got scared and could not name the accused persons in
their initial written complaints. At the same time, it is also contended that this is
not the appropriate stage to dwell upon the said issue and the same would be
taken care of during the course of trial.
7. Lastly, it is submitted that at the stage of consideration on charge,
the court is not supposed to meticulously judge the evidence collected by the
investigating agency and has to take prima facie view thereupon.
8. I have given thoughtful consideration to the arguments advanced at
bar by both the sides. I have also carefully gone through the chargesheet filed in
the matter.
9. The law with regard to framing of charge is fairly settled now. In
the case of “Kallu Mal Gupta V/s State”, 2000 I AD Delhi 107, it was held that
while deciding the question of framing of charge in a criminal case, the Court is
not to apply exactly the standard and test which it finally applied for determining
the guilt or otherwise. This being the initial stage of the trial, the court is not
supposed to decide whether the materials collected by the investigating agency
provides sufficient ground for conviction of the accused or whether the trial is
sure to culminate in his conviction. What is required to be seen is whether
there is strong suspicion which may lead to the court to think that there is
ground for presuming that the accused has committed an offence.
10. Furthermore, in case titled as, “Umar Abdula Sakoor Sorathia V/s
Intelligence Officer Narcotic Control Bureau”, JT 1999 (5) SC 394 it was
held that, “it is well settled that at the stage of framing charge, the Court is not
expected to go deep into the probative value of the materials on record. If on the
basis of materials on record, the court could come to the conclusion that the
accused would have committed the offence, the court is obliged to frame the
charge and proceed to the trial”.
11. It is wellsettled law that at the time of framing of charge the FIR
and the material collected by the investigating agency cannot be sieved through
the cull ender of the finest gauzes to test its veracity. A roving inquiry into the
pros and cons of the case by weighing the evidence is not expected or even
warranted at the stage of framing of charge (reliance Sapna Ahuja V/s State”,
1999V AD Delhi p 407).
12. Now, reverting back to the case in hand. A careful perusal of the
chargesheet filed in the matter reveals that sections 147/148/149/436/454/392/
452/188/153A/427/506 IPC have been invoked therein. It is relevant to note
that except for section 436 IPC, all the sections invoked in the matter are
exclusively triable by learned Magistrate. Now, let us see whether ingredients of
Section 436 IPC are made out in the matter or not. Before that, it would be
appropriate to have the definition of Section 436 IPC, which for ready reference
Section 436 Mischief by fire or explosive substance
with intent to destroy house, etc.—Whoever commits
mischief by fire or any explosive substance, intending to
cause, or knowing it to be likely that he will thereby
cause, the destruction of any building which is
ordinarily used as a place of worship or as a human
dwelling or as a place for the custody of property, shall
be punished with [imprisonment for life], or with
imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine.
13. (i) The case FIR in the matter was registered on 04.03.2020, on the
basis of a written complaint dated 01.03.2020, made by complainant Birjpal, S/o
Shri Binda Prasad. I have carefully gone through the aforesaid written complaint.
In his said complaint, he has merely stated that his rented shop by the name of
“Kapil Rickshaw Battery”, bearing No.A5 (adjacent to Priyanka Copy House),
situated in Chaman Park, in front of DRP Public School, main Brijpuri Road,
Delhi110094 was looted by the riotous mob on 25.02.2020 at about 9.30 PM. It
is relevant to note here that date (25.02.2020) and time (at about 9.30 PM) has
been added/inserted later on by a different ink in the said complaint. Even no
initials of complainant Brij Pal are there on the said addendum. The said
complainant has not stated a single word regarding committing mischief by
fire or explosive substance by the riotous mob in his aforesaid shop on
25.02.2020, i.e on the date of incident. Even in his supplementary
statement(s) dated 04.03.2020 and 09.04.2020, he has not stated a single word
regarding putting on fire of his shop by the riotous mob. As such, the
ingredients of Section 436 IPC are not at all made out either from written
complaint of aforesaid complainant or from his supplementary statement(s)
recorded under Section 161 Cr.P.C.
(ii) Now, coming to the other two complaints, both dated 24.02.2020,
made by another complainant Diwan Singh, S/o Dashrath Singh regarding
breaking open the shutters and looting of his two shops, i.e shop No.4 (Shivam
Cycle Store) and shop No.5 (Shivam General Store), situated at main Brijpuri
Road, Chaman Park by the riotous mob on 24.02.2020. A careful reading of both
his aforesaid complaints clearly and unerringly reveals that even he has not stated
a single word therein which could attract the ingredients of Section 436 IPC.
This is not be all and end all in the matter. A glaring fact which is worth
mentioning here is that in the body of said two complaints, complainant Diwan
Singh has categorically mentioned that when he visited his aforesaid shops on
25.02.2020, he found the shutters thereof broken and articles looted by the
riotous mob and few articles taken outside and put on fire in front of his Shivam
General Store; whereas, in the heading/subject he mentions the date of incident as
24.02.2020. This Court is not able to comprehend as to how he could prefer the
said complaint(s) to police on 24.02.2020 when he himself had visited his shops
on 25.02.2020, meaning thereby that prior to his visit to the shops on 25.02.2020
he was not aware about the fate thereof. Secondly, when both the aforesaid
complaints had reached to the police prior in time on 24.02.2020, then why FIR
was not registered on these two complaints and instead the same was registered
on the complaint of Brij Pal, dated 01.03.2020. No explanation in this regard has
been provided by the investigating agency in the entire chargesheet. This Court
is further not able to comprehend as to how an incident which took place on
24.02.2020 can be clubbed with the incident which occurred on 25.02.2020,
unless and until there is clear evidence to the effect that same unlawful assembly
of rioters was operating on both the aforesaid dates and there has to be specific
witnesses in this regard. These are a few questions/queries which the
investigating agency has to answer during the course of trial.
(iii) Be that as it may, as regards the complainant Diwan Singh naming
accused persons in his supplementary statement and narrating the incident of
putting on fire his Shivam General Store and first floor where spareparts of
bicycles were being kept, I am afraid that the investigating agency cannot cover
up the said flaw by way of recording the supplementary statements of
complainant(s), if the ingredients of Section 436 IPC were not there in their
initial written complaints made to the police. This Court is conscious of the fact
that cases of communal riots have to be considered with utmost sensitivity, but
that does not mean that the common sense should be given goby; mind has to be
applied even at this stage with regard to the material available on record. In case
reported as, “2004 SCC Online Del 961”, titled as, “Deepa Bajwa V/s State &
Ors.”, Hon’ble High Court of Delhi has been pleased to observe as under:
6. After considering the submissions made by learned
counsel for the parties, this Court is of the considered
view that a complaint, on the basis of which the
complainant seeks registration of an F.I.R., must disclose
essential ingredients of the offence and in case a
complaint lacks or is wanting in any of the essential
ingredients, the lacuna or deficiency cannot be filled up
by obtaining additional complaint or supplementary
statement and thereafter proceed to register the F.I.R. If
such a course is permitted, it would give undue latitude
as well as opportunity to unscrupulous complainants to
nail others by hook or by crook in spite of the fact that
their initial complaint does not make out the offence
complained of. Such a course would be utter abuse of the
process of law. First version as disclosed in a complaint
is always important for adjudicating as to whether an
accused has committed or not an offence. In the
complaint dated 19th April, 2001, the Complainant
himself alleged that the Councillor Chhannu Mal was
introducing him to the petitioner. If that was the case,
how could he say later that on that day the petitioner
knew that he was a Scheduled Caste. This statement,
therefore, was a crude falsity introduced at the behest of
the police to implicate the petitioner under Section 3 of
the Act. This effort on the part of the police to supply the
deficiency and cover up a lacuna in the complaint in
view of legal opinion was totally unwarranted and an
abuse of the process of law.
(iv) In another case reported as, “2008 (2) JCC 979”, titled as,
“Rajender Singh Sachdeva V/s State (NCT) of Delhi” has been pleased to
13. If these and other surrounding circumstances are
taken into consideration the complaint of the petitioner
complainant, the incident in which the petitioner was
involved occurred some time in AprilMay 1988, i.e 16
years before the complaint. He was not named in the
FIR. That incident is also absent in the first report
documented during investigation, i.e a complaint to the
Assistant Labour Commissioner. The allegations against
the petitioner surfaced only during the statement under
section 161. Interestingly, he was named in that. The
third statement was recorded on 21.05.2004. In the
meanwhile, the petitioner was arrested on 18.05.2004.
One does not find any logic as to the recording of the
second statement under Section 161 except as a
explanation by the complainant regarding identity and
knowledge of the petitioner’s name. If this is seen in the
background of absence of any mention of the petitioner
in the FIR, the tenuousness of the link with allegations
against him become apparent.
15. Now, it is well established by series of judgments
of the Supreme Court commencing from Union of India
V/s Prafulla Kumar Samal, AIR 1979 SC 366 onwards
that charges can be framed against an accused if the
materials, i.e documentary and oral evidence show his
prima facie involvemenet and existence of a grave
suspicion in that regard. The materials sought to be
pressed into service by the prosecution in this case for
the charge under Section 120B do not inspire such
confidence as to be termed as disclosing grave suspicion
of his involvement. Another principle which has been
recognized by the Courts is that if two views are
possible, the one favouring the accused should be
preferred at the charge framing stage. In this case, the
entirety of evidence are the two Section 161 Cr.P.C
statements of the complainant. There are no objective
material or circumstantial evidence supporting the
statements in the form of seizure of articles etc. In this
background, it is clear that there are two views possible.
Therefore, applying the rule enunciated in “Dilawar
Balu Karane V/s State of Maharashtra”, 2002 (2) SCC
135, the interpretation favouring the petitioner has to be
accepted.
(v) Furthermore, in case reported as, “(2002) 2 SCC 135”, titled as,
“Dilawar Balu Kurane V/s State of Maharashtra”, the Hon’ble Supreme
12. Now the next question is whether a prima facie case
has been made out against the appellant. In exercising
powers under Section 227 of the Code of Criminal
Procedure, the settled position of law is that the Judge
while considering the question of framing the charges
under the said section has the undoubted power to sift
and weigh the evidence for the limited purpose of finding
out whether or not a prima facie case against the
accused has been made out; where the materials placed
before the court disclose grave suspicion against the
accused which has not been properly explained the court
will be fully justified in framing a charge and proceeding
with the trial; by and large if two views are equally
possible and the Judge is satisfied that the evidence
produced before him while giving rise to some suspicion
but not grave suspicion against the accused, he will be
fully justified to discharge the accused, and in exercising
jurisdiction under Section 227 of the Code of Criminal
Procedure, the Judge cannot act merely as a post office
or a mouthpiece of the prosecution, but has to consider
the broad probabilities of the case, the total effect of the
evidence and the documents produced before the court
but should not make a roving enquiry into the pros and
cons of the matter and weigh the evidence as if he was
conducting a trial [Union of India versus Prafulla
(vi) Further, section 436 IPC cannot be invoked merely on the basis of
statements (dated 08.04.2020) of police witnesses namely HC Hari Babu,
Constable Sanjay and Constable Vipin, who were lying posted as “Beat
Officers” in the area/locality in question on the date of incident(s), as when both
the complainants aforesaid had stated nothing in this regard, then the statements
of said police witnesses have no significance. There is also a considerable delay
in recording of their statements.
14. In view of the aforesaid discussion, I am of the considered view that
ingredients of Section 436 IPC are not at all made out from the material produced
on record by the investigating agency. Except Section 436 IPC, all the offences
invoked in the matter are exclusively triable by the court of learned Magistrate.
15. Accordingly, the case file be placed before learned Chief
Metropolitan Magistrate (NorthEast), Karkardooma District Courts on
28.09.2021 at 2.00 p.m. with a request to either try the matter himself or assign it
to some other competent Court/learned MM. Accused persons be produced
physically before learned CMM (NorthEast) on the said date.
16. A copy of this order be sent to learned counsel(s) for the accused
persons as well as to Superintendent Jail concerned.
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Observing that the investigating agency cannot cover up the flaw in the case by recording supplementary statements, a Delhi Court has discharged ten accused persons in a case concerning North East Delhi riots.Additional Sessions Judge Vinod Yadav discharged accused namely Mohd Shahnawaz, Shahrukh, Rashid, Azad, Ashraf Ali, Parvez, Md. Faisal, Rashid @Monu and Mohd. Tahir under sec. 436 of...
Observing that the investigating agency cannot cover up the flaw in the case by recording supplementary statements, a Delhi Court has discharged ten accused persons in a case concerning North East Delhi riots.
Additional Sessions Judge Vinod Yadav discharged accused namely Mohd Shahnawaz, Shahrukh, Rashid, Azad, Ashraf Ali, Parvez, Md. Faisal, Rashid @Monu and Mohd. Tahir under sec. 436 of IPC mischief by fire or explosive substance with intent to destroy house etc). However, the Court directed the Chief Metropolitan Magistrate to try other offences in the FIR as the same were triable by the Magistrate.
"I am afraid that the investigating agency cannot cover up the said flaw by way of recording the supplementary statements of complainant(s), if the ingredients of Section 436 IPC were not there in their initial written complaints made to the police," the Court said.
It added "This Court is conscious of the fact that cases of communal riots have to be considered with utmost sensitivity, but that does not mean that the common sense should be given goby; mind has to be applied even at this stage with regard to the material available on record."
FIR 138/2020 was registered on 04.03.2020 on a written complaint made by one Brijpal, wherein he stated that his rented shop allegedly was looted by the riotous mob on 25.02.2020 at about 9.30 PM.
It was thus the case of accused persons that the they were falsely implicated in the matter by the investigating agency and that there was an "unexplained delay" of about eight days in registration of FIR.
It was also submitted that both the complainants had neither specifically named any of the accused persons in their respective written complaints nor any specific role was assigned to them.
Going through the material available on record, the Court was of the view that:
"The said complainant has not stated a single word regarding committing mischief by fire or explosive substance by the riotous mob in his aforesaid shop on 25.02.2020, i.e on the date of incident. Even in his supplementary statement(s) dated 04.03.2020 and 09.04.2020, he has not stated a single word regarding putting on fire of his shop by the riotous mob."
With regards to the other complainant's statement, the Court took note of the fact that he mentioned that in February 25, 2020 he found shutters of the shop to be broken and looted by the riotous mob. Accordingly the Court observed:
"This Court is not able to comprehend as to how he could prefer the said complaint(s) to police on 24.02.2020 when he himself had visited his shops on 25.02.2020, meaning thereby that prior to his visit to the shops on 25.02.2020 he was not aware about the fate thereof."
Observing that there are few questions which the investigating agency has to answer during trial, the Court said:
"This Court is further not able to comprehend as to how an incident which took place on 24.02.2020 can be clubbed with the incident which occurred on 25.02.2020, unless and until there is clear evidence to the effect that same unlawful assembly of rioters was operating on both the aforesaid dates and there has to be specific witnesses in this regard."
Accordingly, the Court while discharging him of graver offence, directed the CMM to either try the matter himself or to assign it to some other competent Court/ MM while also directing the accused to appear before CMM on September 28.
Title: State v. Mohd. Shahnawaz & Ors.
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Rule. Rule made returnable forthwith. The petition is
heard finally by consent of the learned advocates for the parties.
02] In this criminal writ petition, the petitioner has
challenged the order passed by the respondent No.1-Deputy
Commissioner of Police, Amravati Zone-1 dated 5 th April, 2022,
whereby he was ordered to be externed from the Amravati City as
well as Amravati District and also the order dated 28 th September,
2022 passed by the Appellate Authority-Respondent No.3
confirming the order of externment passed by the respondent No.1
03] The facts leading to the filing of the petition can be
summarized as follows:
The respondent No.1 initiated proceeding for
externment of the petitioner from Amravati District by invoking
the provisions of Section 56(1)(b) of the Maharashtra Police Act,
1951 (for short “the Act of 1951”). The respondent No.1 to record
his subjective satisfaction, relied upon the following crimes. The
said crimes are set out hereinbelow in tabulated form:
Sr. Police Crime No. Section Dated Case status
1. Frezarpura 52/2010 307 of IPC 08/02/2010 Pending in
2. Frezarpura 243/2011 399 of IPC with 30/08/2011 Pending in
3. Frezarpura 156/2015 307, 324, 294, 506 27/04/2015 Pending in
4. Frezarpura 68/2017 294, 506(B) of IPC 29/01/2017 Pending in
5. Frezarpura 156/2017 324, 504, 506, 34 28/02/2017 Pending in
6. Frezarpura 154/2020 65(E) of 07/02/2020 Pending in
7. Frezarpura 475/2021 65(E) of 25/03/2021 Pending in
8. Frezarpura 1582/2021 65(E) of 15/08/2021 Under police
Maharashtra investigation
9. Frezarpura 1681/2021 65(E) of 25/09/2021 Pending in
1. Frezarpura 04/2020 110 of Cr.PC 20/02/2016
2. Frezarpura 54/2021 110 of Cr.PC 09/08/2021
04] The respondent No.1 conducted necessary inquiry. He
issued a notice to the petitioner on 4th March, 2022 to show cause
as to why he should not be externed from the Amravati District.
The respondent No.1, based on the material collected, passed the
order of externment on 5th April, 2022. The petitioner challenged
the said order by filing an appeal before the respondent No.3. The
respondent No.3 vide order dated 28th September, 2022 though
found certain deficiencies in the order of externment, dismissed the
appeal and confirmed the said order.
05] The learned advocate for the petitioner submitted that
out of five crimes registered at Frezarpura Police Station for the
various offences committed under the provisions of the Indian
Penal Code, 1860 (for short “IPC”), the petitioner was acquitted in
four crimes before issuance of notice. The learned advocate
submitted that while arriving at subjective satisfaction, four crimes
at Serial Nos.1 to 4 in which he was acquitted were taken into
consideration. The learned advocate further submitted that four
crimes registered against the petitioner at Frezarpura Police Station
were for commission of offences under Section 65(e) of the
Maharashtra Prohibition Act, 1949 (for short “the Prohibition
Act”). The learned advocate submitted that for the purpose of
passing an externment order under Section 56(1)(b), the offences
under the Prohibition Act cannot be taken into consideration. In
order to substantiate this submission, he has placed reliance on the
decision in the case of Dhananjay Manohar Sapkal Vs. State of
Maharashtra and Another [2005(2) Mh.L.J. 384] . The learned
advocate submitted that after excluding the crimes in which he was
acquitted as well as the crimes under the Prohibition Act, only one
crime at Serial No.5 registered at Frezarpura Police Station bearing
Crime No.156/2017 was available to be considered by the
respondent No.1. The learned advocate, therefore, submitted that
the respondent No.1 took into consideration the stale crimes in
which he was acquitted. It is further submitted that apart from the
crimes being stale, there is no live link in those crimes as well as the
proposed action. The learned advocate submitted that a reference
has been made to the in-camera statements of the confidential
witnesses. By drawing my attention to the show cause notice dated
4th March, 2022, the learned advocate submitted that there was no
mention of these statements in the show cause notice. The learned
advocate further submitted that the statements of the confidential
witnesses indicate that the same were recorded before issuance of
notice. The learned advocate further submitted that the respondent
No.1 did not record the reasons for externment of the petitioner
from entire Amravati District and that too for a period of two
years. The learned advocate submitted that in the absence of the
reasons, the order passed by the respondent No.1 and confirmed by
the respondent No.3 suffers from the virus of excessiveness.
06] The learned APP submitted that after passing the order
of externment, the petitioner indulged in the commission of the
similar crimes. The learned APP took me through the FIRs
registered in those crimes. Based on these FIRs, the learned APP
submitted that the same are sufficient to reflect upon the overall
conduct and behaviour of the petitioner. The learned APP further
submitted that the petitioner did not file the reply to the show
cause notice and, therefore, the respondent No.1 had no occasion
to know that he was acquitted in four crimes. The learned APP
further submitted that the remaining crimes registered against the
petitioner are sufficient to justify the order. The learned APP
submitted that the statements of the confidential witnesses are
sufficient to reflect upon the dangerous nature of the petitioner
and overall threat to the public peace and tranquility. As far as the
offences under the Prohibition Act is concerned, the learned APP
submitted that in addition to the crimes registered under the IPC,
to consider the overall conduct of the petitioner in indulging the
repetitive crimes, would give a fair idea of the activities of the
petitioner and ultimately warranting his externment.
07] It is to be noted that in order to justify the order under
Section 56(1)(b) of the Act of 1951, reliance was placed on four
crimes under the Prohibition Act. It is true that the cases for
commission of those offences are pending against the petitioner in
the Court of Law. In the case of Dhananjay Manohar Sapkal
(supra), the Coordinate Bench of this Court has held that the
offences registered under the Prohibition Act or under the
Maharashtra Prevention of Gambling Act, 1887 (for short “the
Gambling Act”) cannot be taken into consideration for the purpose
of passing an externment order. In this case, the Coordinate Bench
of this Court has considered the provisions of Section 56(1)
Clauses (a) and (b) of the Act of 1951 and held that the offences
under the Prohibition Act or the Gambling Act would fall outside
the scope of the offences and activities contemplated under Clauses
(a) and (b) of Section 56(1) of the Act of 1951. It is to be noted
that the offences contemplated under Section 56(1)(b) of the Act
of 1951 are relating to coin and government stamps, offences
affecting the human body and the offences against the property. It
is pertinent to note that the repetitive indulgence in the offences
relating to the human body by and large have a tendency to affect
the public peace and tranquility. The above offences apart from
resulting in breach of peace and tranquility have a tendency to
harm the society at large. In my view, therefore, this aspect needs to
be borne in mind while appreciating the submissions made by the
learned advocates.
08] Perusal of Section 56(1) Clauses (a) and (b) of the Act
of 1951 would show that the subjective satisfaction for passing
externment order cannot be recorded on the basis of the offences
registered under the Prohibition Act. Therefore, on this ground,
the dent has been caused to the so-called subjective satisfaction,
sought to be relied upon by the respondents to substantiate the
09] The next important point is with regard to the
consideration of the crimes in which the petitioner was acquitted to
record the subjective satisfaction. In order to justify the reliance on
these crimes, the learned APP submitted that the petitioner did not
file the reply to the show cause notice and, therefore, the
respondent No.1 had no reason to know that he was acquitted in
those crimes. In my view, this submission is self-contradictory to
the subjective satisfaction, recorded in the externment order. This
submission would indicate that the respondent No.1 was not
supposed to make an inquiry whether the cases are pending or the
cases have been disposed of. It is to be noted that in all the crimes,
the petitioner was released on bail. The respondent No.1 was,
therefore, required to make a thorough inquiry and that too by
perusing the bail orders in those matters, to come to a definite
conclusion that the activities of the petitioner are in all respect
covered by Section 56(1)(b). The reliance upon the crimes in
which the petitioner was acquitted would indicate that the inquiry
was flawed. It needs to be emphasized that the subjective
satisfaction for passing such an order must be arrived at on the
basis of the objective material. In the present case, the material,
which could not have been taken into consideration at all, has been
stated to be objective material to arrive at subjective satisfaction.
On this ground also the satisfaction recorded is substantially
10] After excluding the four crimes in which he was
acquitted as well as the four crimes which are under the Prohibition
Act, the only one crime at Serial No.5 registered at Frezarpura
Police Station being Crime No.156/2017 was available for being
considered by the respondent No.1 to form an opinion to proceed
further against the petitioner under Section 56 of the Act of 1951.
It is to be noted that this crime is also stale crime. The same could
not have been taken into consideration at all. The show cause
notice is dated 4th March, 2022. The crime at Serial No.5 was
registered in the year 2017. It is, therefore, apparent that the
respondent No.1 took into consideration a crime, which was
registered five years prior to the issuance of notice. The sole crime
apart from being a stale crime for this purpose, would also not be
sufficient to establish the live link for passing the impugned order.
The live link in this case was, therefore, completely snapped. In my
view, therefore, based on this crime alone, the order of externment
was not at all justified.
11] Perusal of the show cause notice as well as the order
passed by the respondent No.1 would indicate that the chapter
cases under Section 110 of the Code of Criminal Procedure, 1971
were initiated against him. The first case is bearing No.04/2020
and the second case is bearing No.54/2021. At the conclusion of
such proceeding, the party concerned is called upon by the
Executive Magistrate to execute a bond for good behaviour. The
duration of such a bond is normally for a period of six months. The
show cause notice as well as the order of externment is silent with
regard to the execution of bond for good behaviour. The show
cause notice as well as the order is silent on the point whether there
was breach of the undertaking and conditions of the bond executed
in those proceedings. The bond is executed in the proceeding,
which is of preventive nature. This aspect has not been considered
and appropriately dealt with by respondent Nos.1 and 3.
12] The next important aspect is with regard to the reliance
placed on the statements of the confidential witnesses. The
statement of the first confidential witness was recorded on 10 th
February, 2022 and the statement of the second witness was
recorded on 11th February, 2022. The statements were recorded by
statements were, therefore, admittedly not recorded by the
respondent No.1. The respondent No.1 was, therefore, required to
verify those statements. Perusal of the statements would show that
at the bottom of the statements, there is endorsement “verified”.
The stamp below the signature clearly spells out that those
statements were not verified by the respondent No.1, but those
statements were verified by the Assistant Commissioner of Police.
Even if it is assumed that there was verification, the cryptic manner
of the endorsement to indicate the verification, creates a doubt
about actual verification. The statements were verified on 28 th
February, 2022. The notice in question was issued on 4 th March,
2022. There is no reference of this in-camera statements of the
confidential witnesses in the notice.
13] Perusal of the externment order would show that the
reliance has been placed on these statements to form a subjective
satisfaction. The respondent No.1, who has passed the externment
order, has not stated in his order that he had personally verified
those statements by securing the presence of the witnesses. In my
view, this exercise was required to be scrupulously conducted. The
statements have been relied upon to form the subjective
satisfaction. It, therefore, goes without saying that the statements of
the confidential witnesses without verification by the respondent
No.1 personally, were made a part of record to pass an externment
order. In my view, this is one more ground to cause serious dent to
the subjective satisfaction recorded in the impugned order.
14] It is to be noted that this order passed by the
respondent No.1 and confirmed by the respondent No.3 suffers
from the virus of excessiveness. The order of externment apart
from making inroads on the personal liberty guaranteed under the
Constitution of India, makes the said person live separate from his
family members. Similarly, the externment order can deprive the
said person of his livelihood. In the given case, depending upon
the financial position of the person, it can make the dependents of
the said person to starve. Therefore, in order to justify the
externment for a maximum period of two years, the Authority is
required to consider the objective material to record subjective
satisfaction on all points. In this case, I am constrained to observe
that the order passed by the respondent No.1 is woefully silent on
all these points. The respondent No.1 has not recorded the reasons
to order the externment of the petitioner for a period of two years
and that too from the entire Amravati District. It is seen on perusal
of the notice and order that all the crimes committed by the
petitioner were within the jurisdiction of Frezarpura Police Station,
15] In my considered opinion, therefore, the order passed
by the respondent No.1 and confirmed by the respondent No.3
suffers from the virus of excessiveness. The law laid down on the
point in the cases of Shaikh Mukhtyar S/o Mustafa Shaikh Vs.
State of Maharashtra and Others [2017 ALL.M.R. (Cri.) 268 and
Bhagwat Dadasaheb Landge and Another Vs. State of Maharashtra
and Others [2020(5) Mh.L.J. (Cri.) 546] , would, therefore, equally
apply in this case. It is to be noted that the excessive nature of the
order on both the counts is one of the factors, which would weigh
in favour of the petitioner. The order of externment, making a
direct inroads on the fundamental right of movement, must,
therefore, pass all the legal tests. In this case, the order passed by
the respondent No.1 and confirmed by the respondent No.3 do
not pass the said test. It is to be noted that the respondent No.3
despite being confronted with the factual position vis-a-vis the
acquittal of the petitioner in four crimes and his involvement in
four crimes under the Prohibition Act, confirmed the said order.
Perusal of the order of the respondent No.3 would show that the
respondent No.3 has recorded factual submissions, but failed to
sufficiently deal with the same. Therefore, in my view, this order is
not sustainable.
16] Accordingly, the writ petition is allowed. The order
dated 5th April, 2022 passed by the respondent No.1-Deputy
Commissioner of Police, Zone-1 Amravati City externing the
petitioner from Amravati District for a period of two years and the
order dated 28th September, 2022 passed by the respondent No.3-
Divisional Commissioner of Amravati confirming the said order of
externment are quashed and set aside.
17] Rule is made absolute in above terms. The writ petition
is disposed of.
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The Bombay High Court recently held that subjective satisfaction for passing an externment order cannot be recorded on the basis of a crime in which the accused was acquitted.
Justice G. A. Sanap sitting at Nagpur quashed an externment order observing –
“The reliance upon the crimes in which the petitioner was acquitted would indicate that the inquiry was flawed. It needs to be emphasized that the subjective satisfaction for passing such an order must be arrived at on the basis of the objective material. In the present case, the material, which could not have been taken into consideration at all, has been stated to be objective material to arrive at subjective satisfaction”.
The writ petitioner challenged the order passed by Deputy Commissioner of Police, Amravati directing his externment from Amravati city as well as Amravati district.
The DCP passed the order under Section 56(1)(b) of the Maharashtra Police Act. Nine crimes registered in Frazerpura police station as well as two preventive actions under section 110 of CRPC were relied on for the order. Four of the crimes were for offences under the IPC. Four other crimes were for offence under the Maharashtra Prohibition Act. The remaining crime was for offences under the Maharashtra Police Act.
The court relied on Dhananjay Manohar Sapkal v. State of Maharashtra and said that offences under the Maharashtra Prohibition Act and Maharashtra Prevention of Gambling Act cannot be considered for the purpose of passing an externment order.
The petitioner had been acquitted in the four crimes registered under IPC. APP for the justified reliance on these crimes by contending that petitioner didn’t respondent to the show-cause notice and hence the DCP did not know that he was acquitted in those crimes.
The court said that APP’s submission is contradictory to the subjective satisfaction recorded in the externment order. “This submission would indicate that the respondent No.1 was not supposed to make an inquiry whether the cases are pending or the cases have been disposed of. It is to be noted that in all the crimes, the petitioner was released on bail. The respondent No.1 (DCP) was, therefore, required to make a thorough inquiry and that too by perusing the bail orders in those matters, to come to a definite conclusion that the activities of the petitioner are in all respect covered by Section 56(1)(b)”, the court held.
The court said that the crime registered in 2017 is a stale crime and could not have been taken into consideration. It would not be sufficient to establish the Live link for passing the order.
The confidential statements were not recorded by the DCP. Therefore, the DCP had to verify those statements. The court noted that they were verified by the Assistant Commissioner of Police instead of the DCP. The court further noted that though the statements were verified before the issuance of show cause notice, they have not been mentioned in the notice.
The court further noted that no reason has been given for ordering externment for two years from the entire Amravati District even though all the registered crimes were within the jurisdiction of Frezarpura Police Station, Amravati City.
Thus, the court said that the order of externment suffers from the “virus of excessiveness” as the Divisional Commissioner confirmed it despite recording the fact of the petitioner’s acquittal in four of the crimes.
“The order of externment apart from making inroads on the personal liberty guaranteed under the Constitution of India, makes the said person live separate from his family members. Similarly, the externment order can deprive the said person of his livelihood. In the given case, depending upon the financial position of the person, it can make the dependents of the said person to starve”, the court observed.
Case no. – Criminal Writ Petition No. 908 of 2022
Case Title – Harikesh @ Guddu Madan Kattilwar v. Deputy Police Commissioner
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For the respondent: Mr. Nand Lal Thakur Addl. Advocate General, Mr. Ram
Lal Thakur Assistant Advocate General, and Mr. Rajat
Damtal, Distt. Kangra, H.P. 21 & 22 of NDPS Act
A pregnant woman, apprehending her arrest on the allegations of conspiring
with her husband in substance trade, from whose house the Police had recovered 259
grams of diacetylmorphine (heroin) and 713 grams of tablets containing tramadol,
the quantities of both drugs falling in the commercial category, attracting the rigors
of S. 37 of NDPS Act, came up before this Court under Section 438 CrPC, seeking
anticipatory bail.
Whether reporters or papers may be allowed to see the judgment? -Yes
2. Earlier, the petitioner had filed a bail petition before Ld. Special Judge, Distt
Kangra. However, vide order dated 19-01-2021, passed in Bail Application No. 30-
D/XXII/2021, the application was dismissed.
In Para 10 of the bail application, the petitioner declares having no criminal
history. The status report also does not mention any criminal past of the accused.
Briefly, the allegations against the petitioner are that on the midnight of Nov
29, 2020, the DySP, who was also officiating as SHO of the Police station Damtal,
received a secret information that Dharminder alias Govinda (husband of the
petitioner) had received a large quantity of psychotropic substances, which he had
concealed in his residential house. The informant also disclosed that Dharminder
would disburse the same during the night. Upon this, the DySP informed ASP, his
superior officer, who further conveyed to him that he would join him soon. After that,
the Investigator and other police officials, along with the drug detection kit, etc.,
reached the concerned place. In the meanwhile, they also associated independent
witnesses. At 1:40 a.m., they reached in the village Channi at the house of
Dharminder, alias Govinda. When they knocked on the door, a lady came out of the
house and revealed her name as Raj Kumari (mother-in-law of petitioner). The
Investigator informed her about their intention to search the house and informed Raj
Kumari about her legal rights under S. 50 of the NDPS Act. When the Investigator
inquired about Dharminder, she said that he and his wife were sleeping on the upper
floor. On this, the Police officials went to the upper floor and knocked on the door,
but no body opened it. After that, they made a forced entry, but no one was inside the
room. They further noticed that the back door was open. Subsequently, while
searching the house, they noticed a secret cabin on the wall below the plyboard of the
H LCD panel. On removing its door, the Investigator recovered a considerable quantity
of cash, jewelry, a white-colored plastic packet, and brown colored packet, which
had some powder. On opening the same, it contained brown colored substance
resembling heroin, and on testing, it gave a positive result for diacetylmorphine
(heroin). The substance, when weighed on an electronic scale, measured 259 grams.
The Police also recovered 1091 capsules of Ridley tramadol, gross weight 713
grams. The Police also recovered cash amounting to Rs.14,50,000/-, besides gold,
silver, etc. After that, the Investigator completed the procedural requirements under
the NDPS Act and the CrPC and arrested Raj Kumari. She revealed during her
interrogation that Dharminder and Monika, petitioner herein, had absconded from the
backside. Subsequently, the Investigator also arrested Dharminder alias Govinda.
Based on these allegations, the Police registered the FIR mentioned above.
5. Ld. Counsel for the bail petitioner, based on the pleadings in paragraphs 3 & 4
of the petition, submitted that from August 2020, the petitioner, along with her two
minor children, had been residing at her paternal home at Phillaur, in Punjab, because
her husband had married another girl. The petition further reads that she came to
know about the case after the arrest of her mother-in-law.
Mr. Nand Lal Thakur, Ld. Additional Advocate General opposed the bail and
contended that the accused has yet not discharged the presumption under S. 35 of the
NDPS Act. Further, the quantity involved is commercial, and restrictions of S. 37 of
the NDPS Act do not entitle the accused to bail. The arguments on behalf of the State
are that the Police have collected sufficient evidence of a conspiracy between the bail
petitioner and her husband, Dharminder, a trader of illicit drugs, which prima facie
points out towards her involvement. While opposing the bail, the alternative
contention on behalf of the State is that if this Court is inclined to grant bail, such a
bond must be subject to very stringent conditions.
Mr. Bharat Barowalia, Ld. Amicus Curiae submitted that by opposing the bail
petition of the pregnant women, the welfare State would cause ill-being to those
residents, who under their instinct of motherhood are also carrying forward the
human genes by bearing a long gestation period and almost lifelong responsibilities.
Mr. Barowalia further asserted that the Courts should be generous in granting bails to
the pregnant.
8. On 02.02.2021, this Court issued notice to the State to file status report. Vide
order dated 23.02.2021, this Court granted interim bail to the petitioner, which is
continuing till date. In the meantime, the petitioner has filed a medical record about
H her pregnancy. One such document dated 9th Mar 2021 is in the following terms:
On trans-Abdominal sonography- Gravid uterus shows single g sac with
viable fetus CRL=6.6 cms=12W06d; Liquor is adequate; Cardiac &
Somatic activity is seen; EDOD++15/09/2021; Nasal bone seen. N T
measure 1.4 mm; Internal os is closed; Ovary show normal scan.
Opinion=ongoing pregnancy of 12w06d Showing normal cardiac
activity.”
9. Thus, as on 9th Mar 2021, the petitioner was carrying pregnancy of 90 days,
i.e., three months. Mr. Rajiv Sharma, Ld. Counsel for the petitioner, submitted that
she is in the seventh month of her pregnancy and has some medical complications.
The State did not refute the contentions.
10. In Gurbaksh Singh Sibbia v State of Punjab, 1980 (2) SCC 565, (Para 30), a
Constitutional Bench of Hon’ble Supreme Court held that the bail decision must
enter the cumulative effect of the variety of circumstances justifying the grant or
refusal of bail. Per Kalyan Chandra Sarkar v Rajesh Ranjan @ Pappu Yadav,
2005 (2) SCC 42, (Para 18) a three-member Bench of Supreme Court held that the
persons accused of non-bailable offences are entitled to bail if the Court concerned
concludes that the prosecution has failed to establish a prima facie case against him,
or despite the existence of a prima facie case, the Court records reasons for its
satisfaction for the need to release such person on bail, in the given fact situations.
The rejection of bail does not preclude filing a subsequent application, and the
Courts can release on bail, provided the circumstances then prevailing requires, and a
change in the fact situation. In State of Rajasthan v Balchand, AIR 1977 SC 2447,
(Para 2 & 3), Supreme Court noticeably illustrated that the basic rule might perhaps
be tersely put as bail, not jail, except where there are circumstances suggestive of
fleeing from justice or thwarting the course of justice or creating other troubles in the
shape of repeating offences or intimidating witnesses and the like by the petitioner
who seeks enlargement on bail from the Court. It is true that the gravity of the
offence involved is likely to induce the petitioner to avoid the course of justice and
must weigh when considering the question of jail, and also the heinousness of the
crime. In Gudikanti Narasimhulu v Public Prosecutor, (1978) 1 SCC 240, (Para
16), Supreme Court held that the delicate light of the law favors release unless
countered by the negative criteria necessitating that course. In Prahlad Singh Bhati
H v NCT, Delhi, (2001) 4 SCC 280, Supreme Court highlighted one of the factors for
bail to be the public or the State's immense interest and similar other considerations.
In Dataram Singh v State of Uttar Pradesh, (2018) 3 SCC 22, (Para 6), Supreme
Court held that the grant or refusal of bail is entirely within the discretion of the
judge hearing the matter and though that discretion is unfettered, it must be exercised
judiciously, compassionately, and in a humane manner. Also, conditions for the grant
of bail ought not to be so strict as to be incapable of compliance, thereby making the
grant of bail illusory.
11. The proviso to S. 437 of CrPC, creates a special right of bail in favour of a
person who is under the age of sixteen years or is a woman or is sick or infirm. S.
437. When bail may be taken in case of non- bailable offence.
(1) When any person accused of, or suspected of, the commission
of any non- bailable offence is arrested or detained without warrant
by an officer in charge of a police station or appears or is brought
before a Court other than the High Court or Court of Session, he
(i) such person shall not be so released if there appear
reasonable grounds for believing that he has been guilty of an
offence punishable with death or imprisonment for life;
(ii) such person shall not be so released if such offence is a
cognizable offence and he had been previously convicted of
an offence punishable with death, imprisonment for life or
imprisonment for seven years or more, or he had been
previously convicted on two or more occasions of a non-
Provided that the Court may direct that a person referred to in
clause (i) or clause (ii) be released on bail if such person is under
the age of sixteen years or is a woman or is sick or infirm: Provided
further that the Court may also direct that a person referred to in
clause (ii) be released on bail if it is satisfied that it is just and
proper so to do for any other special reason.
Art. 51(c) of the Constitution of India is a provision which acts as a beacon for
international coordination towards similarities of laws around the globe. It enjoins
the state ‘to foster respect for international law.’ It provides that,
(c) foster respect for international law and treaty obligations in the
dealings of organized peoples with one another,”
13. Therefore, it is imperative to consider Rule 64 of the United Nations Rules for
H the Treatment of Women Prisoners and Non-custodial Measures for Women
Offenders (the Bangkok Rules)2, adopted by the General Assembly on 21 December
2010, according to which, “Non-custodial sentences for pregnant women and women
with dependent children shall be preferred where possible and appropriate, with
custodial sentences being considered when the offence is serious or violent or the
woman represents a continuing danger, and after taking into account the best
interests of the child or children, while ensuring that appropriate provision has been
made for the care of such children.”
https://www.ohchr.org/EN/ProfessionalInterest/Pages/BangkokRules.aspx
14. Article 12 of the Convention on the Elimination of All Forms of Discrimination
against Women New York, 18 December 1979,3 reads as follows,
1. States Parties shall take all appropriate measures to eliminate
discrimination against women in the field of health care in order to
ensure, on a basis of equality of men and women, access to health care
services, including those related to family planning.
2. Notwithstanding the provisions of paragraph I of this article, States
Parties shall ensure to women appropriate services in connection with
pregnancy, confinement and the post-natal period, granting free
services where necessary, as well as adequate nutrition during
pregnancy and lactation.
The National Health Portal of Government of India depicts that, “The
environment is everything around us wherever we are at home, at work, or outdoors;
Although you don't need to worry about every little thing you breathe in or eat, it's
smart to avoid exposure to substances that might put your pregnancy or unborn
16. Per the report of Ministry of Women and Child Development Government of
India, on Women in Prisons, launched by the Ministry of Women and Child
Development, 25-06-2018,5 “As per most recent data available from the end of 2015,
there are 4,19,623 persons in jail in India, of which, 17,834 (about 4.3%) are women.
Of these, 11,916 (66.8%) are undertrial prisoners. In India, an analysis of prison
statistics at five-year intervals reveals an increasing trend in the number of women
prisoners – from 3.3% of all prisoners in 2000 to 4.3% in 2015. A majority of female
inmates are in the age group of 30-50 years (50.5%), followed by 18-30 years
(31.3%). Of the total 1,401 prisons in India, only 18 are exclusive for women,
housing 2,985 female prisoners. Thus, a majority of women inmates are housed in
H women’s enclosures of general prisons.”
17. According to Mayo Clinic, even if you eat a healthy diet, you can miss out on
key nutrients. Taking a daily prenatal vitamin — ideally starting at least three months
before conception — can help fill any gaps.6 Apart from these, pregnant women need
https://www.ohchr.org/en/professionalinterest/pages/cedaw.aspx
https://www.nhp.gov.in/healthlyliving/pregnancy
https://pib.gov.in/Pressreleaseshare.aspx?PRID=1536513
https://www.mayoclinic.org/healthy-lifestyle/pregnancy-week-by-week/in-depth/pregnancy-
nutrient level of food and access to basic nutrition and health services, and need
sanitation and hygiene education, including menstrual hygiene.7
18. According to WHO’s Kyiv Declaration on Women’s Health in Prison, 8
Correcting gender inequity in prison health Offender Health, 2009, “Pregnant
prisoners should be provided with the same level of health care as that provided to
women outside prison, including access to obstetricians, gynaecologists, midwives
and birthing practitioners appropriate to their culture. Pregnant prisoners should have
access to female practitioners if requested. Women may also decide not to proceed
with their pregnancy in prison, especially if they were previously unaware that they
were pregnant. Treatment options equivalent to those available in the community
should be guaranteed (WHO Regional Office for Europe, 2007).”
19. According to Somayeh Alirezaei and Robab Latifnejad Roudsari, in Promoting
Health Care for Pregnant Women in Prison: A Review of International Guidelines 9,
published in Iranian Journal of Nursing and Midwifery Research, (2020), “Despite
the efforts made in international maternity guidelines to address the issues of care for
pregnant women, there are currently deficiencies in many health aspects of pregnant
prisoners and the special needs, such as prenatal care and assessment fetal health,
MHC, ethical issues, problems related to the prison environment and forced labor,
communication with the environment and people inside and outside the prison.”
20. According to Danielle Dallaire and Rebecca Shlafer, in Shackling Pregnant
Women Poses Risks to Mother and Fetus,10 (2015), based on a research in US
prisons, stated, “Although there is a dearth of research data on these women, we do
know that, when compared to women in the general population, pregnant prisoners
are more likely to have risk factors associated with poor perinatal outcomes,
H including preterm and small-for-gestational-age infants. These outcomes are likely a
result of exposure to a combination of risk factors, including lack of access to or
failure to attend prenatal care, substance use, toxic stress, domestic violence, poor
nutrition, and sexually transmitted infections.”
21. According to CDC (Centers for Disease Control and Prevention), “Violence
can lead to injury and death among women in any stage of life, including during
https://data.unicef.org/topic/maternal-health/antenatal-care/
https://www.unodc.org/documents/hiv-
aids/WHO_EURO_UNODC_2009_Womens_health_in_prison_correcting_gender_inequity-EN.pdf
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7055189/
https://psychologybenefits.org/2015/12/29/shackling-pregnant-women-poses-risks-to-mother-and-
pregnancy.”11 Bleeding and clotting disorders can cause serious problems during
pregnancy, including miscarriage.12 Some workplace hazards can affect the health of
22. According to Lauren Kuhlik and Carolyn Sufrin, in Pregnancy, Systematic
Disregard and Degradation, and Carceral Institutions,14 Harvard Law & Policy
Review, [Vol. 14 2020], P 417, “An incarcerated pregnant person must, by default,
rely on custody officers to triage any pregnancy related symptoms requiring medical
attention, including possible labor symptoms. A pregnant person in custody does not
have the freedom to call their health care provider or an ambulance or to go to a
hospital, but must instead notify a custody officer who serves, functionally, as the
gatekeeper to a pregnant person accessing medical personnel. The response of a
custody officer, who is not a medical professional and typically has had no training
from the institution on proper pregnancy care or warning signs, should always be to
contact medical staff. This need is particularly salient in pregnancy because
concerning signs in pregnancy or labor symptoms may often be subtle, such as light
bleeding, cramping, or even a headache. In reality, however, custody officers may
make their own, unqualified assessments as to whether a pregnant person’s
symptoms warrant medical attention, or whether they are “really” in labor—leading
to delays and neglect in care. Custody officers’ gatekeeping position allows them not
only to exercise their lack of clinical judgment, but also to exercise potential
punitive, moral judgments about pregnant incarcerated people. Institutions of
incarceration are rarely held accountable for failing to provide prenatal care except
when that failure results in an adverse pregnancy outcome.”
23. According to Zohreh Shahhosseini, Mehdi Pourasghar, Alireza
Khalilian, and Fariba Salehi in A Review of the Effects of Anxiety During Pregnancy
on Children’s Health15, stated “Although pregnancy is often portrayed as a time of
great joy, that’s not the reality for all women. The adverse, long-term, stable, and
sometimes, irreparable effects of anxiety during pregnancy can change pregnancy
into an agonizing and unpleasant event of women’s life span.” The authors further
https://www.cdc.gov/ViolencePrevention/index.html
https://www.cdc.gov/ncbddd/blooddisorders/index.html
https://www.cdc.gov/niosh/topics/repro/pregnancy.html
https://harvardlpr.com/wp-content/uploads/sites/20/2020/11/Kuhlik-Sufrin.pdf
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4499279/#ref22
stated, “Also it can be concluded that adverse effects resulting from high levels of
maternal anxiety in children is a serious and thought-provoking in which the
necessity of identifying and screening of anxiety disorders in periodic care during
influencing factors on anxiety during pregnancy is essential.”
pregnancy seems to be urgent. In this regard, the identification of contexts and
24. According to Michael T. Kinsella, and Catherine Monk, Impact of Maternal .
Stress, Depression & Anxiety on Fetal Neurobehavioral Development 16, “Studies
discussed here, all of which are ongoing, indicate that pregnant women’s
psychological health may have consequences for fetal neurobehavioral development,
and consequently, child outcomes. These findings underscore the importance of
considering the effects of women’s mental health on child development during the
prenatal, as well the postnatal, periods.”
25. According to Susan Hatters Friedman, Aimee Kaempf and Sarah Kauffman in
their paper, The Realities of Pregnancy and Mothering While Incarcerated,17 the
Journal of the American Academy of Psychiatry and the Law Online (2020), stated as
follows, “Thus, pregnancies among women in prison, in addition to being
complicated by the aforementioned risk factors, are more likely to be complicated by
mental illness, substance-use disorders, and personality disorders.”
26. According to Francesca Halstead, in Pregnancy and childbirth in prison,18
(2020), “Nonetheless, the difference between pregnant prisoners and the general
prison population (and pregnant women in mainstream society) was the wish for
some to conceal their pregnancies. The wish to blend in to avoid being singled out
for attention or, worse, threats of violence, intensified their stress. The intensity of
masking concerned women about the effect of stress on their unborn baby.”
27. According to Kiran R. Naik, in Women in Prisons India, International Journal
H of Research and Analytical Reviews,19 IJRAR (2019), Vol. 6, Issue 2, “As far as
possible, except in the case of high-risk prisoners, arrangements for temporary
release are to be made to enable delivery of children in a hospital outside the prison.
Suspension of sentence may also be considered in the case of casual offenders.
Further, the birth certificate of the child should not mention the prison as place of
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3710585/
https://www.sociologylens.net/topics/gender/pregnancy-and-childbirth-in-prison/27982
http://www.ijrar.org/papers/IJRAR1AXP008.pdf
birth to protect them against social stigma. “Spending their formative years in prison
can have a severe negative impact on the entire lives of children”
28. In Tin Sei Minthang Touthang v. Officer-in-Charge, Moirang Police
Station, Manipur, 2021 CriLJ 19, Manipur High Court granted bail to a pregnant
woman carrying seven months pregnancy, despite accusations of involvement in a
huge quantity of opium, but had no bad antecedents. .
29. In Rekha v. State of Karnataka, Cr. Pet No. 200107 of 2021, decided on
29.01.2021, in a case for causing the death of five persons, the Karnataka High Court
granted bail to a woman because there were no allegations against her of overt acts,
and also because she was pregnant.
30. In State of Gujarat v. Jadav, Cr. A No. 652 of 2008, decided on 01.02.2016, a
Division Bench of Gujrat High Court, while convicting in an appeal, imposed the
sentence on the convicts for seven years imprisonment for dowry death,
simultaneously suspended sentence for around ten months of a pregnant convict.
31. In Joginder Kumar versus State of U.P., 1994 4 SCC 260, a three-Judge
[9]. A realistic approach should be made in this direction. The law of
arrest is one of balancing individual rights, liberties and privileges, on the
one hand, and individual duties, obligations and responsibilities on the
other; of weighing and balancing the rights, liberties and privileges of the
single individual and those of individuals collectively; of simply deciding
what is wanted and where to put the weight and the emphasis; of
deciding which comes first - the criminal or society, the law violator or
ig h the law abider; of meeting the challenge which Mr. Justice Cardozo so
forthrightly met when he wrestled with a similar task of balancing
individual rights against society's rights and wisely held that the
exclusion rule was bad law, that society came first, and that the criminal
should not go free because the constable blundered.
32. Taking birth in jail could possibly be such a trauma to the child that social
H hatred might follow, potentially creating an everlasting impact on the mind whenever
questioned about birth. It is high time to take a contrarian call to the maxim Partus
sequitur ventrem.
33. Good and nutritious food in prisons may give good physical health but cannot
substitute good mental health. Restrains and confined spaces might cause mental
stress to a pregnant woman. Giving birth in jail might cause her tremendous trauma.
What difference will it make to the State and society by not postponing
incarceration? What is so urgent to execute the sentence? Heavens will not fall if
incarceration is postponed. There should be no restraints throughout pregnancy, no
restraints during labor and delivery, and no restraints at least for a year after giving
birth. Every expecting female deserves dignity during motherhood.
34. Pregnant women need bail, not jail! Courts must restore the due and sacrosanct
freedom of women in motherhood pro tanto. Even when the offenses are highly
grave and accusations very severe, they still deserve temporary bail or suspension of
sentence, extending to a year after delivery. Further, those who stand convicted and
their appeals closed also deserve similar relief, in whatever camouflage it may come.
35. The next question is since the allegations against the petitioner are for
committing a heinous offense, attracting rigors of S. 37 of NDPS Act, is she entitled
to a limited period bail, or the entire trial period?
36. To answer this question, the gravity of allegations and the nature of offense
assumes significance. The accusations against the petitioner involve commercial
quantities of psychotropic substances. Given this, the pre-conditions of S. 37 of the
NDPS Act might impede the judicial discretion of whether she is entitled to limited
37. The decision of this Court in Satinder Kumar v. State of H.P., 2020 SCC
Online HP 3276, covers the proposition of law involved in this case, wherein this
Court observed, “Satisfying the fetters of S. 37 of the NDPS Act is candling the
infertile eggs.” The ratio of the said decision is that to get the bail in commercial
quantity of substance, the accused must meet the twin conditions of S. 37 of NDPS
38. The prosecution's case is that DySP had received secret information about
illicit procurement of a vast quantity of contraband by Dharminder, the petitioner's
husband. The petitioner explicitly declares that she has no criminal history, and even
the State does not refute it. On the contrary, the investigation revealed that many
H cases are registered against co-accused Dharminder alias Govinda under NDPS Act,
1) FIR No. 9/13 Registered under Section 21 of NDPS Act in PS Division
2) FIR No.19/15, registered under Sections 18 and 21 of NDPS Act in PS
3) FIR No.215/16, registered under Section 21 of NDPS Act in PS Indora.
4) FIR No.33/19 registered under Sections 21 and 29 of NDPS Act in PS
5) FIR No.50/19 registered under Sections 21 and 29 of NDPS Act in PS
6) FIR No.53/19 registered under Sections 21 and 29 of NDPS Act in PS
7) FIR No.74/19 registered under Sections 21, 22, 27, 29 of NDPS Act in
8) FIR No.185/20 registered under Sections 21 and 25 of NDPS Act in PS
The petitioner was married to the accused around a decade ago and has no
criminal background. However, her husband has a checkered criminal history. Thus,
being a wife, she might be aware of her husband's illegal activities. But that is not
enough! What was her role? How much say she had in the home? Whether she could
have intervened and persuaded him to stop illegal activities? Whether her
intervention would have helped? The answers to all these factors will depend upon
the quality of evidence adduced during the trial and the firmness of cross-
examination at her end. The fact is that she has no criminal history of her own.
40. The confessional statement of mother-in-law, who is a co-accused is legally
insufficient to deny bail to the other accused in the absence of any other
incriminating evidence or allegations.
41. The difference between a bail order and the final judgment is similar to that of
a sketch and a painting. However, some sketches would be detailed, and some
paintings with a few strokes.
42. Any detailed discussions about the evidence may prejudice the case of the
prosecution or the accused. Suffice it to say that due to the reasons mentioned above,
and keeping in view the nature of allegations, the petitioner has made out a case for
grant of bail.
43. The mandate of S. 37 of the NDPS Act implies that the accused should satisfy
its twin conditions and come out clean. The evidence collected by the Investigator is
legally insufficient to deny bail to the other accused in the absence of any other
incriminating evidence or allegations, further mellowed down by the criminal history
H of her husband. Thus, the petitioner has satisfied the first condition. To meet the
second condition, stringent conditions would suffice. Thus, on this ground alone,
instead of limited period bail, she has satisfied the rigors of Section 37 of the NDPS
Act. Thus, the petitioner makes a case for release on bail during the trial in the facts
and circumstances peculiar to this case.
44. The possibility of the accused influencing the investigation, tampering with
evidence, intimidating witnesses, and the likelihood of fleeing justice, can be taken
care of by imposing elaborative and stringent conditions. In Sushila Aggarwal,
(2020) 5 SCC 1, Para 92, the Constitutional Bench held that unusually, subject to the
evidence produced, the Courts can impose restrictive conditions.
45. Given the above reasoning, the Court is granting bail to the petitioner, subject
to strict terms and conditions, which shall be over and above and irrespective of the
contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.
46. In Manish Lal Shrivastava v State of Himachal Pradesh, CrMPM No. 1734
of 2020, after analyzing judicial precedents, this Court observed that any Court
granting bail with sureties should give a choice to the accused to either furnish surety
bonds or give a fixed deposit, with a further option to switch over to another.
47. The petitioner shall be released on bail in the FIR mentioned above, subject to
her furnishing a personal bond of Rs. Ten thousand (INR 10,000/-), and shall
furnish one surety of Rs. Twenty-five thousand (INR 25,000/-), to the satisfaction
of the Investigator. Before accepting the sureties, the Attesting Officer must satisfy
that in case the accused fails to appear in Court, then such sureties are capable to
produce the accused before the Court, keeping in mind the Jurisprudence behind the
sureties, which is to secure the presence of the accused.
48. In the alternative, the petitioner may furnish a personal bond of Rs. Ten
thousand (INR 10,000/-), and fixed deposit(s) for Rs. Ten thousand only (INR
10,000/-), made in favour of Chief Judicial Magistrate of the concerned district.
a) The arresting Officer shall give a time of ten working days to enable the
accused to prepare the fixed deposit.
Such Fixed deposit may be made from any of the banks where the stake
ig h of the State is more than 50%, or any of the stable private banks, e.g., HDFC
Bank, ICICI Bank, Kotak Mahindra Bank, etc., with the clause of automatic
renewal of principal, and liberty of the interest reverting to the linked account.
c) The said fixed deposit need not necessarily be made from the account of
H the petitioner and need not be a single fixed deposit.
d) If the fixed deposit is made in physical form, i.e., on paper, then the
original receipt shall be handed over to the concerned Court.
e) If made online, then its printout, attested by any Advocate, and if
possible, countersigned by the accused, shall be filed, and the depositor shall
get the online liquidation disabled.
f) The petitioner or her Advocate shall inform at the earliest to the
concerned branch of the bank, that it has been tendered as surety. Such
information be sent either by e-mail or by post/courier, about the fixed deposit,
whether made on paper or in any other mode, along with its number as well as
FIR number.
g) After that, the petitioner shall hand over such proof along with
endorsement to the concerned Court.
It shall be total discretion of the petitioner to choose between surety
bonds and fixed deposits. It shall also be open for the petitioner to apply for
substitution of fixed deposit with surety bonds and vice-versa.
Subject to the proceedings under S. 446 CrPC, if any, the entire amount
of fixed deposit along with interest credited, if any, shall be endorsed/returned
to the depositor(s). Such Court shall have a lien over the deposits up to the
by substitution as the case may be.
expiry of the period mentioned under S. 437-A CrPC, 1973, or until discharged
The furnishing of the personal bonds shall be deemed acceptance of the
following and all other stipulations, terms, and conditions of this bail order:
The petitioner to execute a bond for attendance to the concerned
Court(s). Once the trial begins, the petitioner shall not, in any manner, try to
delay the proceedings, and undertakes to appear before the concerned Court
and to attend the trial on each date, unless exempted. In case of an appeal, on
this very bond, the petitioner also promises to appear before the higher Court in
terms of Section 437-A CrPC.
ig h b) The attesting officer shall, on the reverse page of personal bonds,
mention the permanent address of the petitioner along with the phone
number(s), WhatsApp number (if any), e-mail (if any), and details of personal
bank account(s) (if available), and in case of any change, the petitioner shall
H immediately and not later than 30 days from such modification, intimate about
the change of residential address and change of phone numbers, WhatsApp
number, e-mail accounts, to the Police Station of this FIR to the concerned
c) The petitioner shall not influence, browbeat, pressurize, make any
inducement, threat, or promise, directly or indirectly, to the witnesses, the
Police officials, or any other person acquainted with the facts of the case, to
dissuade them from disclosing such facts to the Police, or the Court, or to
tamper with the evidence.
48. The petitioner shall, within thirty days of release from prison, procure a
smartphone, and inform its IMEI number and other details to the SHO/I.O. of the
Police station mentioned before. The petitioner shall keep the phone location/GPS
always on the “ON” mode. Whenever the Investigating officer asks to share the
location, then the petitioner shall immediately do so. The petitioner shall neither clear
the location history, WhatsApp chats, calls nor format the phone without permission
of the concerned SHO/I.O.
During the trial's pendency, if the petitioner repeats or commits any offence
where the sentence prescribed is more than seven years or violates any condition as
stipulated in this order, it shall always be permissible to the respondent to apply for
cancellation of this bail after three months of her delivering the baby. It shall further
be open for any investigating agency to bring it to the notice of the Court seized of
the subsequent application that the accused was earlier cautioned not to indulge in
criminal activities. Otherwise, the bail bonds shall continue to remain in force
throughout the trial and after that in terms of Section 437-A of the CrPC.
In case the petitioner finds the bail condition(s) as violating fundamental,
human, or other rights, or causing difficulty due to any situation, then for
modification of such term(s), the petitioner may file a reasoned application before
this Court, and after taking cognizance, even to the Court taking cognizance or the
trial Court, as the case may be, and such Court shall also be competent to modify or
delete any condition.
51. Any Advocate for the petitioner and the Officer in whose presence the
petitioner puts signatures on personal bonds shall explain all conditions of this bail
order, in vernacular and if not feasible, in Hindi or Punjabi.
H 52. This order does not, in any manner, limit or restrict the rights of the Police or
the investigating agency from further investigation as per law.
53. Any observation made hereinabove is neither an expression of opinion on the
merits of the case, nor shall the trial Court advert to these comments.
54. In return for the protection from incarceration, the Court believes that the
accused shall also reciprocate through desirable behavior.
55. There would be no need for a certified copy of this order for furnishing bonds.
Any Advocate for the petitioner can download this order along with the case status
from the official web page of this Court and attest it to be a true copy. In case the
attesting officer or the Court wants to verify the authenticity, such official can also
verify its authenticity and may download and use the downloaded copy for attesting
bonds.
In the facts and circumstances peculiar to this case, the petition is allowed in
the terms mentioned above.
|
Observing that heavens will not fall if the incarceration is postponed, the Himachal Pradesh High Court on Saturday held that every expecting female deserves dignity during motherhood and that in such conditions, a pregnant woman deserves bail and not jail.Granting anticipatory bail to a pregnant woman accused under NDPS Act, a single judge bench comprising of Justice Anoop Chitkara observed...
Observing that heavens will not fall if the incarceration is postponed, the Himachal Pradesh High Court on Saturday held that every expecting female deserves dignity during motherhood and that in such conditions, a pregnant woman deserves bail and not jail.
Granting anticipatory bail to a pregnant woman accused under NDPS Act, a single judge bench comprising of Justice Anoop Chitkara observed that there should be no restraint to a woman throughout the period of her pregnancy as restraints and confined spaces might cause mental stress to a pregnant woman.
"What is so urgent to execute the sentence? Heavens will not fall if incarceration is postponed. There should be no restraints throughout pregnancy, no restraints during labor and delivery, and no restraints at least for a year after giving birth. Every expecting female deserves dignity during motherhood." The Court said.
Furthermore, the Court observed thus:
"Pregnant women need bail, not jail! Courts must restore the due and sacrosanct freedom of women in motherhood pro tanto. Even when the offences are highly grave and accusations very severe, they still deserve temporary bail or suspension of sentence, extending to a year after delivery. Further, those who stand convicted and their appeals closed also deserve similar relief, in whatever camouflage it may come."
"Taking birth in jail could possibly be such a trauma to the child that social hatred might follow, potentially creating an everlasting impact on the mind whenever questioned about birth. It is high time to take a contrarian call to the maxim Partus sequitur ventrem."
The Court was dealing with an anticipatory bail plea filed by the Pregnant woman apprehending arrest in an NDPS case in which her husband and mother in law were arrested by the police. The allegations against the petitioner was that she conspired with her husband in substance trade after commercial quantities were recovered from husband's house.
Denying the allegations and Involvement in the matter, it was the case of the woman that she had been living in Punjab since August last year along with her two minor children.
Analyzing the facts of the case, the Court observed thus:
"The petitioner was married to the accused around a decade ago and has no criminal background. However, her husband has a checkered criminal history. Thus, being a wife, she might be aware of her husband's illegal activities. But that is not enough! What was her role? How much say she had in the home? Whether she could have intervened and persuaded him to stop illegal activities? Whether her intervention would have helped? The answers to all these factors will depend upon the quality of evidence adduced during the trial and the firmness of cross-examination at her end. The fact is that she has no criminal history of her own."
Relying upon international instruments such as United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules) and Convention on the Elimination of All Forms of Discrimination against Women, the Court analysed the physical and mental health risk conditions and needs of a pregnant woman.
Reliance was also placed on report of Ministry of Women and Child Development Government of India on Women in Prisons which stated that from the end of 2015, there were 4,19,623 persons in jail in India, of which, 17,834 (about 4.3%) are women and out of these, 11,916 (66.8%) were undertrial prisoners.
"Good and nutritious food in prisons may give good physical health but cannot substitute good mental health. Restrains and confined spaces might cause mental stress to a pregnant woman. Giving birth in jail might cause her tremendous trauma." The Court observed at the outset.
In view of the aforesaid observations, the Court granted anticipatory bail to the petitioner.
Title: Monika v. State of H.P.
|
This petition has been filed under Section 482 Cr.P.C. for
quashing of FIR No.236 dated 15.09.2021 (Annexure P-1), under
Sections 384, 511 and 506 IPC, registered at Police Station Lehra,
District Sangrur along with all consequential proceedings emanating
The FIR in the present case has been registered on
15.09.2021, on the statement of respondent No.2 Jagdeep
Singh/complainant, as per which, the occurrence has been stated to
have taken place during the period starting from 10.10.2019 to
15.09.2021. In his statement, the complainant has alleged that the
petitioner was having enmity against father of the complainant since
2008 and the petitioner in connivance with his accomplices, had got
registered a false rape case against the complainant in the year 2019,
so that he could blackmail the complainant and could take Rs.14 lakhs
from the complainant and could take revenge on account of his enmity
and in the said FIR, the SHO and Superintendent of Police had
declared the complainant innocent. It is further alleged that as per the
enquiry report of the police officials, the petitioner got the said false
case registered against the complainant for taking Rs.14 lakhs from
the complainant. It is further alleged that in the year 2020, Gurjit
Singh had told the complainant that one girl ‘S’ (name withheld) was
demanding money by blackmailing the said Gurjit Singh and the
complainant being an advocate, advised Gurjit Singh to get a case
registered against the said girl ‘S’ and as per the advice given by the
complainant, the said Gurjit Singh got a case registered under Section
384 IPC against ‘S’ and it was the petitioner who helped ‘S’ in getting
bail and then provoked ‘S’ to register a false case against the
complainant, but said ‘S’ refused to do so and got registered the rape
case i.e. case 307/2020, only against Gurjit Singh, which was
subsequently cancelled as the same was found to be false. It is further
alleged that now, the petitioner, in connivance with wrong persons, is
demanding Rs.14 lakhs from the complainant and has threatened that
in case, the said amount is not paid, then a false rape case will again
be registered against the complainant. On the basis of the said
complaint and allegations, the present FIR under Sections 384, 511
and 506 IPC has been registered.
Learned counsel for the petitioner has submitted that the
registration of the present FIR is a complete abuse of the process of
the Court. It is submitted that the FIR in question can be divided into
two parts. The first part pertaining to the allegations with respect to
the rape case filed in the year 2019 by ‘R’ (name withheld) against
Gupreet Singh @ Goldy, Jagdeep Singh son of Najar Singh and
Respondent No.2/Complainant and in the second part, the allegations
pertain to the year 2020 involving Gurjit Singh and the second girl ‘S’
(name withheld) as per which, the Petitioner in connivance with other
persons had been demanding Rs. 14 lakhs from Respondent
No.2/complainant failing which, the petitioner would get another false
case registered against respondent no.2/complainant. It is argued that
even a perusal of the FIR would show that the period during which the
alleged offences have been committed is from 10.10.2019 to
15.09.2020. Reference has been made to Annexure P-2, which is an
FIR bearing No.263 dated 10.10.2019, registered under Section 376,
342, 506 and 120-B IPC and Section 8 of the Protection of Children
from Sexual Offence Act, 2012 which was registered at the instance
of one girl ‘R’ (name withheld) and in the said case, the respondent
no.2/complainant was also made an accused in addition to Gurpreet
Singh @ Goldy and Jagdeep Singh son of Najar Singh. It is stated that
the first part of the present FIR relates to the said FIR No.263 dated
10.10.2019 and with respect to the same, it is submitted that the
complainant-respondent No.2 had filed an application dated
07.07.2020 in the Court of Judicial Magistrate, 1st Class, Moonak
against the said girl ‘R’, the present petitioner as well as three other
persons. The said application has been annexed as Annexure P-5
along with the present petition. Learned counsel for the petitioner has
referred to the said application and has specifically highlighted the
allegations made at page Nos.54, 58 and 59 of the paper-book with
respect to the allegations of the alleged demand of Rs.14 lakhs by the
present petitioner and the false implication of the complainant by the
petitioner in the said rape case. Reference has also been made to the
prayer clause to show that a prayer was made to register a case under
Sections 211, 193, 389 and 120-B IPC. It is submitted that the said
case had come up before the Judicial Magistrate, 1st Class, Moonak on
20.07.2020, on which date, the Judicial Magistrate, 1st Class, Moonak
observed that the Court was of the opinion that the facts disclosed in
the application did not warrant registration of the FIR and treated the
application under Section 156(3) as a criminal complaint and
adjourned the same to 21.08.2020 for pre-summoning evidence. It is
further submitted that the said girl ‘R’ (name withheld) appeared in
the witness box as PW-1 in the FIR No.263 on 17.08.2021 and made
specific allegations against respondent No.2 and on the basis of the
said allegations, an application dated 24.08.2021 under Section 319
Cr.P.C. for summoning of respondent No.2 as an accused was filed. It
is argued that without disclosing the factum of the filing the
application under Section 156(3) Cr.P.C. as well as the order dated
20.07.2020, respondent No.2 has got the present FIR registered. The
same is stated to be an act of active concealment and abuse of the
process of the Court on part of the respondent No.2. It is also
submitted that once the Judicial Magistrate 1st Class, Moonak had
observed that the application under Section 156(3) did not warrant
registration of the FIR and the allegations made in the said application
under Section 156(3) Cr.P.C. were similar to the allegations made in
the first part of the FIR, then, it was not for the police officials to act
in violation of the orders passed by the Judicial Magistrate, 1st Class,
Moonak and register the present FIR. It is submitted that the
complainant/respondent No.2 by getting the present FIR registered
has in fact tried to nullify the order dated 20.07.2020 passed by the
Judicial Magistrate, 1st Class, Moonak, without even challenging the
said order before a higher forum.In order to complete the chain of
events with respect to the first part, learned counsel for the petitioner
has stated that after registration of the present case, respondent No.2
had withdrawn the said complaint under Section 156(3) Cr.P.C. and
for the said purpose, he has referred to the order dated 11.12.2021
(Annexure P-11), at page 216 of the paperbook. Learned counsel for
the petitioner has further submitted that the allegations in the FIR with
respect to the fact that respondent No.2 was implicated in a false case
in the year 2019 and was exonerated by the police, cannot even
remotely stand, on account of the fact that respondent No.2 has been
summoned under Section 319 Cr.P.C. vide order dated 01.12.2021
passed by the Sessions Judge, Sangrur and the said order has been
annexed with the paperbook as Annexure P-9. Paragraph 8 of the said
order would show that respondent No.2 has been summoned to face
trial under Sections 363, 376(D) and 384 of the IPC along with the
other accused persons for 23.12.2021.
With respect to the second part of the FIR, in which
allegations pertaining to the year 2020 have been made involving
Gurjit Singh and the girl ‘S’ (name withheld) and with respect to the
petitioner demanding Rs.14 lakhs failing which, respondent
No.2/complainant has been threatened to be implicated in another
false case of rape, it is submitted that a second complaint under
Section 156(3) Cr.P.C. had been filed before the Judicial Magistrate,
1st Class, Moonak, in which, the present petitioner was also made an
accused and a prayer was made for registration of FIR under Sections
116, 195, 211, 384, 389 read with Sections 511 and 120-B IPC. The
said application has been annexed as Annexure R-2/1 by respondent
No.2. Specific reference has been made to the averments made in the
said application, moreso, pargraphs No.5, 6 and 8 to highlight that the
allegations with respect to the petitioner wanting to extort money from
respondent No.2 and implicating him in a false case of rape by taking
the help of second girl ‘S’ (name withheld), have been made and the
said allegations are similar to the allegations made in the second part
of the present FIR. It is submitted that although the said application is
not dated, but since the said application was withdrawn on 22.03.2021
(Annexure P-12), thus, it is apparent that the said application was filed
prior to 22.03.2021. It is argued that the said application was also
prior to the registration of the present i.e. FIR No.236 dated
15.09.2021 and yet, in the present FIR, no reference with respect to
the filing of the said application under Section 156(3) Cr.P.C., much
less, the order dated 22.03.2021 has been made. Learned counsel for
the petitioner has relied upon a judgment of the Hon’ble Supreme
Court of India in “Moti Lal Songara Vs. Prem Prakash @ Pappu”,
reported as 2013(9) SCC 199, to contend that suppression of a vital
fact, which is in the special knowledge of a person would itself be a
ground for quashing of the proceedings, moreso, when the Court finds
that a party has abused the process of the Court. Learned counsel for
the petitioner has submitted that in the above-cited case, accused
therein, had challenged the order under Section 319 Cr.P.C., without
disclosing to the Court that charges had been framed against him and
the accused therein was successful in getting the order under Section
319 Cr.P.C. set aside. The Hon’ble Supreme Court had allowed the
appeal of the appellant therein and set aside the orders vide which the
order summoning the accused under section 319 was set aside and
thus, upheld the order summoning the accused therein by observing
that it was a clear case of suppression of a vital fact which was in the
knowledge of the accused therein.
Reliance has also been placed upon a judgment of the
Hon’ble Supreme Court in case “Mrs. Priyanka Srivastava and
another Vs. State of U.P. and others, reported as 2015(6) SCC 287,
to contend that the proceedings under Section 156(3) Cr.P.C are on a
higher footing than the proceedings under Section 154 Cr.P.C.,
inasmuch as, in the said proceedings under Section 156(3) Cr.P.C., a
Court of law is involved and even in the said proceedings, the Hon’ble
Supreme Court had observed that at the time of filing of the
application under Section 156(3) Cr.P.C., it was incumbent upon the
complainant/applicant to specifically indicate that earlier applications
under Section 154 (1) and 154 (3) have been filed. Even supporting
affidavit is also required to be filed alongwith the application under
Section 156 (3) CrPC. It is submitted that once in the proceedings
under Section 156(3) Cr.P.C., it is necessary to mention about the said
application, it is equally incumbent upon respondent No.2 to have
mentioned about the filing of application under Section 156(3) Cr.P.C.
before the Judicial Magistrate, 1st Class, Moonak in his complaint on
the basis of which the present FIR has been registered. It is, thus,
submitted that the present petition for quashing deserves to be allowed
solely on the ground of active concealment/suppression of the
proceedings under Section 156(3) Cr.P.C and the orders passed
therein. Additionally, it is submitted that once respondent No.2 has
been summoned in proceedings under Section 319 Cr.P.C., then, the
allegations in the FIR to the effect that respondent No.2 was falsely
involved in the case,cannot stand. It is submitted that the FIR also
deserves to be quashed on the ground that the police officials cannot
act in violation of the the orders passed by the Judicial Magistrate, 1st
Class, Moonak, moreso, the order dated 20.07.2020 vide which,it was
specifically observed that the application under Section 156(3) CrPC
did not warrant registration of an FIR. Learned counsel for the
petitioner has also argued that even the allegations to the effect that
the petitioner is demanding Rs.14 lakhs and is threatening the
complainant to involve in a false rape case in case the amount is not
paid, are vague, inasmuch as, no details as to when the said demand
was made or when the threat was issued have been mentioned in the
FIR and at any rate, would not constitute an offence and have
apparently been made only to get the present false FIR registered for
mala-fide reasons to harass the present petitioner. It is submitted that
the act and conduct of respondent No.2 is contemptuous, inasmuch as
respondent No.2 has made every effort to win over the prosecutrix or
to pressurize the prosecutrix with respect to the FIR No.263 dated
15.09.2021. It is submitted that initially an attempt was made to
falsely involve the said prosecutrix ‘R’ in proceedings under Section
182 IPC and once the same was rejected on the basis of an opinion
given by the Deputy DA, Sangrur, then a complaint was also got filed
from the said prosecutrix ‘R’, even after she had given evidence
against respondent No.2 before the trial court and in the said
complaint, certain averments in favour of respondent No.2 were
sought to be incorporated. However, the said complaint was also
withdrawn on 18.11.2021 (Annexure P-13) as respondent No.2 was
aware that any statement contrary to the evidence given in the Court
could result in initiation of proceedings against the persons, who were
trying to influence the said witness. It is submitted that the present
FIR was also registered on false, frivolous and vague allegations only
on the understanding of Respondent no 2 that the present petitioner
may have some influence on the said prosecutrix ‘R’ and by
registering the present FIR, the petitioner might persuade the said
prosecutrix ‘R’ to withdraw the application under Section 319 Cr.P.C,
which had been filed on 24.08.2021, immediately prior to the
registration of the FIR dated 15.09.2021. It is submitted that in fact
respondent No.2 had abused the process of the Court and had made
every attempt to influence the prosecutrix and to tamper with the
evidence. It is submitted that no offence under Section 384, Section
511 or Section 506 has been made out.
On the other hand, learned State counsel and counsel for
the complainant have opposed the present petition for quashing of FIR
and have submitted that the present petition under Section 482 Cr.P.C.
deserves to be dismissed on the ground that the report under Section
173 Cr.P.C in the present case has not been submitted and have relied
upon the judgment of the Hon’ble Supreme Court in “Mahendra
K.C.Vs. State of Karnataka and another”, 2021(4) R.C.R. (Criminal)
653, to contend that at the stage before the report, the High Court
cannot test the veracity of the allegations nor can it proceed in the
manner that a Judge conducting a trial would, on the basis of evidence
collected during the course of the trial. Learned counsel for
respondent No.2 has referred to Annexure P-5, which is an application
under Section 156(3) Cr.P.C., and has highlighted paragraph 7 (page
52 of the paperbook), to contend that it has been specifically averred
in the said application under Section 156(3) Cr.P.C. that Kulwant
Singh had called up respondent No.2 and had informed him that
respondent No.2 should give Rs.14 lakhs and the said Kulwant Singh
is the real uncle of prosecutrix ‘R’ and has submitted that there was a
telephonic conversation between the said Kulwant Singh, the present
petitioner and Respondent No.2 with respect to the said demand. It is,
thus, submitted that the allegations with respect to the first incident as
mentioned in the present FIR, have substance. Learned counsel for
respondent No.2 has further referred to statement under Section 161
Cr.P.C. of respondent No.2, which is stated to have been recorded on
16.09.2021 i.e., one day after registration of the FIR and has
submitted that in the said statement the allegations have been made
with respect to the petitioner asking for Rs.14 lakhs on 06.09.2021
from respondent No.2, failing which, he would falsely implicate
respondent No.2 in a criminal case. It is submitted that all the said
factors would be taken into consideration at the time of trial and thus,
the present petition deserves to be dismissed.
Learned counsel for the petitioner in rebuttal to the said
argument has submitted that the counsel for respondent no.2 is
seeking to rely upon the allegations/averments in the petition under
Section 156(3) Cr.P.C. dated 07.07.2020 (Annexure P-5),after
considering which,on 20.07.2020, the Judicial Magistrate First Class,
Moonak had observed that the application does not warrant
registration of an FIR. It is further submitted that even in the alleged
statement under Section 161 Cr.P.C., there is no mention about the
filing of the earlier application under Section 156(3) Cr.P.C. or the
orders thereon and thus, his plea of active concealment, would stand.
It is submitted that it is surprising as to how respondent No.2 has got
the copy of the said statement under Section 161 Cr.P.C. without the
final report under Section 173 Cr.P.C. being submitted. It is further
submitted that in the alleged statement under Section 161, reference
has been made to an incident of 06.09.2021 whereas in the FIR which
has been registered on 15.09.2021, after the said date, there is no
reference with respect to the said incident.
With respect to the maintainability of the petition under
Section 482 Cr.P.C., learned counsel for the petitioner has relied upon
the judgment of Hon’ble Supreme Court passed in case “Ajay Mitra
Vs. State of M.P.& Ors., reported as 2003(3) SCC 11, to contend that
where the FIR and the criminal proceedings are an abuse of the
process of the Court or does not constitute any offfence or is mala-fide
or involves a legal argument, then even in case, the report under
Section 173 Cr.P.C. has not been submitted, still, the FIR can be
quashed. Further, reference has also been made to the provision of
Section 482 Cr.P.C. to state that as per the said provision, nothing in
the Code of Criminal Procedure, 1973 shall deem to limit or affect the
inherent powers of the High Court to make such orders as may be
necessary to give effect to any order under this Code, or to prevent
abuse of the process of any Court or otherwise to secure the ends of
justice. It is submitted that the said provision does not in any way
envisage that the power under Section 482 Cr.P.C. cannot be
exercised unless the report under Section 173 Cr.P.C. is submitted.
This Court has heard the learned counsel for the parties
and perused the record.
This Court would first like to deal with the objection
raised by the learned counsel for the respondents with respect to the
maintainability of a petition under Section 482 for quashing of an FIR
without the final report under Section 173 CrPC having been
For determining the said objection, it would be pertinent
to note the relevant judgments on the said aspect.
The Hon’ble Supreme Court in Ajay Mitra’s case
(supra) has held as has observed as under: -
“Leave granted.
These appeals by special leave are directed against the
judgment and order dated January 16, 2002 of High Court of
Madhya Pradesh, by which three Petitions filed by the
appellants under Section 482 Cr.P.C. were dismissed.
xxx xxx xxx xxx xxx xxx
Thereafter, the appellants filed three Criminal
Miscellaneous Petitions under Section 482 Cr.P.C. before the
High Court for quashing of the FIR and the proceedings of
the case before the learned Magistrate. After hearing the
parties, the High Court held that the investigation had not yet
commenced in connection with the FIRs which had been
registered at the Police Station and, therefore, the Petitions
were pre-mature and accordingly all the three Petitions were
rejected.
The High Court has held that the Petitions filed by the
appellants for quashing the complaint and the FIRs
registered against them are pre-mature. The question which
arises is that where the complaint or the FIR does not
disclose commission of a cognizable offence, whether the
same can be quashed at the initial stage? This question was
examined by this Court in State of West Bengal &Ors. V.
and it was held that the First Information Report which does
not allege or disclose that the essential requirements of the
penal provision are prima facie satisfied, cannot form the
foundation or constitute the starting point of a lawful
investigation. It is surely not within the province of the police
to investigate into a Report (FIR) which does not disclose the
commission of a cognizable offence and the code does not
impose upon them the duty of inquiry in such cases. It was
further held that an investigation can be quashed if no
cognizable offence is disclosed by the FIR. The same question
has been considered inState of Haryana &Ors. V. Ch.
Bhajan Lal &Ors. 1991(3) RCR (Criminal) 383 (SC) and
after considering all the earlier decisions, the category of
cases, in which the Court can exercise its extra-ordinary
power under Article 226 of the Constitution or the inherent
power under Section 482 Cr.P.C. either to prevent abuse of
the process of any Court or to secure the ends of justice, were
sumarised in para 108 of the Report and sub- paras 1 to 3
thereof are being reproduced hereinbelow :
"1. Where the allegations made in the First
Information Report or the complaint, even if they are taken at
their face value and accepted in their entirety do not prima
facie constitute any offence or make out a case against the
accused.
2. Where the allegations in the First Information
Report and other materials, if any, accompanying the F.I.R.
do not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1) of the
Code except under an order of a Magistrate within the
purview of Section 155(2) of the Code.
3. Where the uncontroverted allegations made in the
FIR or complaint and the evidence collected in support of the
same do not disclose the commission of any offence and make
out a case against the accused."
The said judgment by the Three Judges Bench of the
Hon’ble Supreme Court had affirmatively held that where an FIR does
not disclose the essential requirements of the penal provision or does
not disclose the commission of a cognizable offence, the same can be
quashed at the initial stage. Reference has also been made to the
judgment of Hon’ble Supreme Court in case “State of Haryana and
others Vs. Ch. Bhajan Lal & Ors., 1991(3) RCR (Criminal) 383), in
which, it was observed that the High Court can exercise its extra-
ordinary power under Article 226 of the Constitution or the inherent
power under Section 482 Cr.P.C. 1973 either to prevent abuse of the
process of any Court or to secure the ends of justice.
The Hon’ble Supreme Court of India in “R Kalyani vs.
Janak C. Mehta” reported as 2009 (1) SCC 516 has held as under:
“Leave granted.
2. Appellant lodged a First Information Report (FIR)
against the respondents on or about 4.1.2003 under Sections
409, 420 and 468 read with Section 34 of the Indian Penal
3. First and second respondent approached the High
Court for an order for quashing of the said FIR as also the
investigation initiated pursuant thereto or in furtherance
thereof. The High Court allowed the said proceedings by
reason of the impugned order dated 29.4.2004.Mr. K.K.
Mani, learned counsel appearing on behalf of the appellant,
would, in support of the appeal, contend :
(1) The High Court exercised its inherent jurisdiction
under Section 482 of the Code of Criminal Procedure wholly
illegally and without jurisdiction insofar as it entered into the
disputed questions of fact in regard to the involvement of the
respondents as the contents of the first information report
disclose an offence of cheating, criminal breech of trust and
forgery.
(2) While admittedly the investigation was not even
complete, the High Court could not have relied upon the
documents furnished by the defendants either for the purpose
of finding out absence of mens rea on the part of the
applicants or their involvement in the case.
(3) Respondent Nos.1 and 2 herein being high ranking
officers of M/s. Shares and Securities Ltd., a company dealing
in shares, were vicariously liable for commission of the
offence being in day to day charge of the affairs thereof.
(4) An offence of forgery being a serious one and in
view of the fact that the respondent No.2 forwarded a letter
purporting to authorise the accused No.3 to transfer shares to
the National Stock Exchange, he must be held to have the
requisite intention to commit the said offence along with the
respondent No.3.
(5) In any view of the matter, the respondent No. 3
being not an applicant before the High Court, the entire
criminal prosecution could not have quashed by the High
In Hamid v. Rashid alias Rasheed & Ors. [(2008) 1
SCC 474], this Court opined :
"6. We are in agreement with the contention advanced
on behalf of the complainant appellant. Section 482 Criminal
Procedure Code saves the inherent powers of the High Court
and its language is quite explicit when it says that nothing in
the Code shall be deemed to limit or affect the inherent
powers of the High Court to make such orders as may be
necessary to give effect to any order under the Code, or to
prevent abuse of the process of any Court or otherwise to
secure the ends of justice. A procedural Code, however
exhaustive, cannot expressly provide for all time to come
against all the cases or points that may possibly arise, and in
order that justice may not suffer, it is necessary that every
court must in proper cases exercise its inherent power for the
ends of justice or for the purpose of carrying out the other
provisions of the Code. It is well established principle that
every Court has inherent power to act ex debito justitiae to do
that real and substantial justice for the administration of
which alone it exists or to prevent abuse of the process of the
One of the paramount duties of the Superior Courts is
to see that a person who is apparently innocent is not
subjected to persecution and humiliation on the basis of a
false and wholly untenable complaint.
A vicarious liability can be fastened only by reason of
a provision of a statute and not otherwise. For the said
purpose, a legal fiction has to be created. Even under a
special statute when the vicarious criminal liability is
fastened on a person on the premise that he was in-charge of
the affairs of the company and responsible to it, all the
ingredients laid down under the statute must be fulfilled. A
legal fiction must be confined to the object and purport for
which it has been created. In Sham Sunder & Ors. v. State of
Haryana [(1989) 4 SCC 630], this Court held :
"9. But we are concerned with a criminal
liability under penal provision and not a civil"
liability. The penal provision must be strictly
construed in the first place. Secondly, there is no
vicarious liability in criminal law unless the statute
takes that also within its fold. Section 10 does not
provide for such liability. It does not make all the
partners liable for the offence whether they do
business or not."
27. If a person, thus, has to be proceeded with as being
vicariously liable for the acts of the company, the company must be
made an accused. In any event, it would be a fair thing to do so, as
legal fiction is raised both against the Company as well as the
person responsible for the acts of the Company.
xxx xxx xxx xxx xxx xxx
30. The appeal is dismissed with the aforementioned
observations.”
A perusal of the said judgment would show that the High
Court had in a petition under section 482 quashed the FIR without the
investigation having been completed and the said order was upheld by
the Hon’ble Apex Court qua the persons who had filed the petition
under Section 482. The specific objection of the appellant therein to
the effect that the investigation was not complete was noticed in
Paragraph 3 of the said judgment. In the abovesaid case, it was
observed that for a person to be proceeded against vicariously for the
acts of a company, the company must be made an accused. It was also
observed that vicarious liability can be fastened only by reason of a
provision of a statute and not otherwise and incase, under a special
statute vicarious criminal liability is fastened upon a person on the
allegation that he was in-charge of the affairs of the company, then all
the other ingredients laid down under the statute must be fulfilled. It is
thus apparent that in case, a legal issue is raised by an accused person
to the effect that he has been vicariously prosecuted without there
being any provision in the Act for vicarious liability under which he is
being prosecuted, then his petition under Section 482 CrPC raising
such issues could not be rejected solely on the ground that report
under Section 173 has not been filed.
The Hon’ble Supreme Court in “T.T. Antony Vs. State of
Kerela” reported as 2001 (6) SCC 181 has observed as under: -
“However, the sweeping power of investigation does
not warrant subjecting a citizen each time to fresh
investigation by the police in respect of the same incident,
giving rise to one or more cognizable offences, consequent
upon filing of successive FIRs whether before or after filing
the final report under Section 173(2) Criminal Procedure
Code, 1973 It would clearly be beyond the purview of
sections 154 and 156 Criminal Procedure Code, 1973 nay, a
case of abuse of the statutory power of investigation in a
given case. In our view a case of a fresh investigation based
on the second or successive FIRs, not being a counter case,
filed in connection with the same or connected cognizable
offence alleged to have been committed in the course of the
same transaction and in respect of which pursuant to the first
FIR either investigation is underway or final report under
Section 173(2) has been forwarded to the Magistrate, may be
a fit case for exercise of power under Section 482 Criminal
Procedure Code, 1973 or under Articles 226/227 of the
The course adopted in this case, namely, the
registration of the information as the second FIR in regard to
the same incident and making a fresh investigation is not
permissible under the scheme of the provisions of the
Criminal Procedure Code as pointed out above, therefore, the
investigation undertaken and the report thereof cannot but be
invalid. We have, therefore, no option except to quash the
same leaving it open of the investigating agency to seek
permission in Crime No. 353/94 or 354/94 of the Magistrate
to make further investigation, forward further report or
reports and thus proceed in accordance with law.”
A perusal of the above judgment would show that it was
observed by the Hon’ble Supreme Court of India that in case, with
respect to one incident an FIR has already been registered, then a
second FIR with respect to the same incident cannot be registered and
in case the same is registered then the High Court while exercising its
powers under Section 482 CrPC would be well within its rights to
quash the second FIR. The same principle has been followed by the
Hon’ble Supreme Court in the case of “Amitbhai Anil Chandra Shah
vs. Central Beureu of Investigation and Anr” reported 2013 (6) SCC
348. Thus, in a situation where a second FIR is registered with respect
to the same incident on which an FIR has already been registered, the
petition for quashing of the second FIR should not be thrown out on
the ground that the report under Section 173 CrPC has not been
A Coordinate Bench of this Court in “Kuldeep Raj
Mahajan vs. Hukam Chand” in a judgment dated 05.12.2007 passed
in CRM-34272-M of 2003 had observed as under:
“ Kuldip Raj Mahajan has approached this Court by
way of instant petition under Section 482 of the Code of
Criminal Procedure (in short 'the Code') for quashing of
criminal complaint No. 130 of 2000 instituted by Hukam
Chand-respondent against the petitioner in the court of
Judicial Magistrate Ist Class, Hisar (Annexure P-1) under
section 3 of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 (in short 'the Act') and
Section 506 of the Indian Penal Code, along with summoning
order dated 19.9.2002 (Annexure P-2).
2. The respondent inter alia alleged in the impugned
complaint Annexure P-1 that he belongs to Dhanak caste
which is a Scheduled Caste whereas the petitioner belongs to
Vaish caste which is a higher caste. The respondent, at the
relevant time, was working as Head Cashier in State Bank of
Patiala, Branch Mayar, District Hisar where the petitioner
was posted as Branch Manager. On 9.9.19999, at about 4.45
p.m., the petitioner insulted the respondent in the presence of
other employees and abused him by his caste. Petitioner's
utterances demeaning the respondent by caste have been
quoted in paragraph 4 of the complaint. Tilak Raj Khurana,
Cashier Incharge and also Jag Ram and Wazir Singh,
Watchmen-cum-Peons were present there at that time. They
objected to the offensive utterances made by the petitioner,
but the petitioner continued with his abusive language. On
10.9.1999, the respondent reported this matter to the higher
authorities which further annoyed the petitioner, who ran
towards respondent to assault him. Same witnesses saved the
respondent. Petitioner was using abusive caste based
language against the respondent and threatened to implicate
him in a false case and to get him removed from service. The
petitioner extended threat to the life of the respondent. The
respondent filed a complaint in Police Station Hisar and later
on made representation on 29.10.1999 to Inspector General
of Police, Hisar Range, Hisar. Another representation was
made to the Inspector General of Police on 9.11.1999.
Ultimately FIR No. 11 dated 8.1.2000 was registered, but the
police, even thereafter, did not take any action nor arrested
the petitioner. On 23.4.2000, the respondent went to the
Police Station to inquire about the progress in the matter and
was told that due to political pressure, police officials were
unable to arrest the petitioner. Thereupon the respondent
filed the impugned complaint dated 24.4.2000 (Annexure P-
1). After recording of preliminary evidence, the learned
Magistrate, vide impugned order dated 19.9.2002 (Annexure
P-2), summoned the petitioner as accused for offence under
Section 3 of the Act and Section 506 of the Indian Penal
Code. Feeling aggrieved, the petitioner has filed the instant
petition for quashing of the impugned complaint and
summoning order.
It would indicate that the respondent, after being
aware of the cancellation of the FIR, filed the impugned
complaint, but did not disclose in the complaint that FIR
lodged by him had been cancelled.
Perusal of impugned summoning order (Annexure P-2)
reveals that there is no reference at all to the investigation
report/cancellation report of the police in the summoning
order. Without considering the investigation
report/cancellation report of the police, the impugned
summoning order could not have been legally passed by the
learned Magistrate. The respondent, despite knowledge,
concealed the cancellation report of the police from the
learned Magistrate. This is another indicator of mala fide on
the part of the respondent.
11. Learned counsel for the petitioner next pointed out
that offence under Section 506 of the Indian Penal Code, as
well as offence under Section 3 of the Act, is not made out
from the allegations in the impugned complaint. It was
pointed out that alleged empty threat, to implicate the
respondent in false case or to get him removed from service,
would not come within the mischief of criminal intimidation
punishable under Section 506 of the Indian Penal Code.
There is considerable merit in the submission. Alleged threat
by the petitioner could not have caused any alarm to the
respondent nor he was being compelled to do an act which he
was not legally bound to do or to omit to do an act which he
was entitled to do. The allegations in the complaint do not
make out a case of criminal intimidation punishable under
There cannot be any quarrel with this legal
proposition. Disputed questions of fact cannot be gone into in
a petition under section 482 of the Code. However, this Court
cannot be a helpless spectator when it is made out that the
criminal prosecution is mala fide and an abuse of the
process of the court. In fact, this Court has inherent power
and corresponding duty to prevent abuse of the process of
any court or otherwise to secure the ends of justice. In the
instant case, the impugned complaint is result of mala fide as
the respondent was nursing grudge against the petitioner as
discussed herein above.
After investigation by Gazetted Officer, the FIR lodged
in the same matter was found to be false and cancellation
report was submitted by the police. The respondent, despite
being aware of the cancellation report, concealed the same
from the learned Magistrate. The impugned summoning order
has also been passed without considering or even referring to
the cancellation report. Keeping in view all these
circumstances, it is a fit case in which this Court has to
exercise its inherent powers under section 482 of the Code by
quashing the impugned complaint and summoning order so
as to prevent the abuse of process of court and to secure the
ends of justice.”
A perusal of the above judgment would show that it has
been observed that the High Court cannot be a helpless spectator
when it is made out that the criminal prosecution is mala fide and an
abuse of the process of the court and that the High Court has inherent
power and a corresponding duty to prevent the abuse of the process of
the court or otherwise to secure the ends of justice and in the said
case, the petition under Section 482 Cr.P.C. was allowed on grounds
which are akin to the present case inasmuch as, there was concealment
by the complainant therein in his complaint with respect to the fact
that in the FIR registered earlier regarding the same occurrence, a
cancellation report had been submitted and the same was considered
as an indicator of mala fide on the part of the complainant therein and
was considered as one of the grounds for quashing the proceedings. It
was further observed that even the allegations in the complaint with
respect to threat given by the accused therein to complainant therein
was found not to make out a case under Section 506 IPC.
The aspect with respect to concealment/suppression of
facts has also been dealt in detail by the Hon’ble Supreme Court of
India in the case of Moti Lal (supra) as well Mrs. Priyanka
Srivastava (supra). In the case of Priyanka Srivastava (supra), the
Hon’ble Supreme Court had observed that in the application under
Section 156(3) Cr.P.C., it was necessary to be spell out the details of
the applications filed under Sections 154(1) and 154(3) Cr.P.C. in the
application under Section 156(3) Cr.P.C. Even supporting affidavit
was required to be submitted. The copy of the said judgment was
circulated to all the High Courts for further circulation to the Sessions
Judges and to the Magistrates. Once, in the application under Section
156(3) Cr.P.C., it is found incumbent to mention about the application
filed before the police, it would be equally incumbent or rather, the
higher duty of the complainant to mention about the application under
Section 156(3) Cr.P.C. filed and the orders thereof in his complaint
before the police when the complaint before the police is subsequent
to the application filed under Section 156(3) Cr.P.C.
The judgment of the Hon’ble Supreme Court of India in
“Mahendra KC” (supra) relied upon by the Learned Counsel for the
Respondent no.2 would not further the case of respondent no.2 in any
manner. In the said case, none of the issues i.e., either of active
concealment or registration of FIR being in violation of the order
passed by the Judicial Magistrate or forum shopping or criminal
proceedings being an abuse of the process of law or being mala-fide
etc. raised by the petitioner in the present petition, were the basis for
quashing of the FIR by the High Court. The relevant portion of the
said judgment is reproduced hereinbelow: -
5. The FIR was registered at 20:00 hours on 6
December 2016. The second respondent-accused, an SLAO
for Bengaluru City, and another driver of his car were named
as accused. The suicide note recorded by the deceased
allegedly in his own handwriting contains a detailed
narration of the properties alleged to have been illegally
acquired by the second respondent. Besides detailing the
properties which were acquired by the accused in
paragraphs 1 to 13, the suicide note refers to:
(i) The transfer of funds in several lakhs of rupees by
the accused to his relatives by using the cell phone and bank
account of the deceased;
(ii) The conversion of approximately Rs. 100 crores
into currency notes of Rs. 2,000/-, Rs. 100/- and Rs. 50/-;
(iii) The knowledge of the deceased in regard to the
transactions of the accused as a result of which he had been
threatened to be killed "by rowdies";
(iv) A raid conducted against the accused by the
establishment of the Lokayukta of Karnataka while he was
posted in the Housing Board;
(v) The involvement of judges to whom presents or
(vi) The payment of salary to the deceased having been
stopped at the behest of the accused;
(vii) The accused having used the deceased for
changing currency worth over Rs. 75 crores; and
(viii) The deceased being in knowledge of "all the
information", and when a shortage of an amount of Rs. 8
lakh was found, the deceased had been directed to make
good the deficiency, failing which he was threatened to be
killed by rowdies.
6. In this backdrop, the deceased recorded that he
had been threatened by the accused and hence was ending
his life by consuming poison. Both the second respondent
and his "house driver" were specifically named as
responsible for this death.
7. The second respondent-accused was arrested on 11
December 2016. On 12 December 2016, based on a
complaint made by BT Suresh, a friend of the deceased, an
FIR was registered against the accused as Crime
No.128/2016 in Ijur Police Station, Ramnagar District, under
Sections 323, 324, 341, 342, 363, 506, 114 read with Sections
120B and 34 of the IPC.
8. On 18 April 2017, the accused instituted a petition
under section 482 CrPC, 1973 for quashing the FIR
registered as Crime No. 565/2016. A Single Judge of the High
Court of Karnataka stayed investigation and proceedings in
Crime No.565/2016. After arguments were heard, judgment
was reserved on 12 November 2019. Eventually, by his
judgment delivered nearly 6 months thereafter on 29 May
2020, the Single Judge allowed the petition and quashed all
proceedings relating to the complaint and FIR registered as
9. At the outset, it is necessary to elucidate the reasons
which have weighed with the High Court in quashing the FIR.
The High Court has held that:
(i) The suicide note which consists of 21 numbered
paragraphs gives a detailed account of the transactions
undertaken by the accused;
(ii) For a person who has made such a detailed
account of twenty transactions in the suicide note, it can be
prudently expected that the deceased would have furnished
details of the threats administrated to him by the accused;
iii) In the unnumbered paragraph of the suicide note
"the totally different story" is set out, stating that the accused
threatened to kill the deceased since there was a shortage of
cash to the tune of Rs 8 lacs for which the accused suspected
the deceased to be responsible;
(iv) The deceased held the accused responsible for
withholding his salary for three months;
(v) Though a query was put to the Government Pleader
and counsel for the complainant as to whether the
investigation had thrown up any material which corroborated
the allegations set out in the suicide note, the GP submitted
that "they have not been able to unearth any material to
corroborate any of the allegations";
(vi) Though the petition was instituted before the High
Court on 18 April 2017, and was pending for over three
years, no corroborative material had been produced before
the Court by the investigating agency;
(vii) Even assuming that the accused has amassed
huge wealth, that would not constitute a good ground for a
person to commit suicide since it was not the case of the
deceased that the accused had deprived him of his wealth;
viii) The suicide note contains no incriminating
statement or material except for a bald and vague statement
that the accused had threatened the deceased;
(ix) The complaint does not disclose details of the
alleged threat nor does it state that the deceased had on
multiple occasions complained of having received threats
(x) The allegation in regard to the demand for
repayment of Rs 8 lacs rings hollow "as neither the
prosecution nor the de facto complainant had placed an iota
of material that the deceased was or had in fact been in
possession of huge sum of money";
(xi) No act proximate to the time of death is alleged
against the accused;
(xii) If the allegation of the demand of Rs. 8 lacs was
correct, it would have been natural for the accused to restrain
the deceased from leaving Bangalore to ensure the recovery
(xiii) The investigation had not thrown up any material
regarding the use of the mobile banking facilities of the
deceased for the transfer of funds;
(xiv) Neither the death-note nor investigation revealed
a threat call to the deceased;
(xv) The only witness who could have spoken about
the veracity of the suicide note was the deceased;
(xvi) If a threat had been administered to the deceased,
he would have narrated the incident to the complainant or his
(xvii) Even if a threat was given, the nature of the
threat would have to be examined particularly on the question
as to whether it was of such an alarming proportion so as to
drive a `normal person' to contemplate suicide;
(xviii) If the deceased had felt threatened by the
accused, this was belied by his visits to his village to meet his
parents and friends and the failure to lodge a complaint with
the police particularly when the Police Commissionerate was
a stone's throw away. This casts doubt on the veracity of the
(xix) Since the deceased had consumed alcohol, it is
possible that in the grip of intoxicants he had failed to act
(xx) The conduct of the deceased in attending a
marriage in a different town is indicative of the actions of a
(xxi) How the deceased had sourced the poison was
unknown.
10. The judgment of the Single Judge has given rise to
two special leave petitions under Article 136 of the
Constitution: one by the complainant and the second by the
State of Karnataka.
The High Court in the present case has virtually
proceeded to hold a trial, substituting its own perception for
what it believed should or should not have been the normal
course of human behavior. This is clearly impermissible.
17. The complaint in the present case on the basis of
which the FIR was registered contains a detailed account of:
(i) The knowledge of the deceased in regard to the
illegal activities of the accused;
(ii) The accused having used the deceased's bank
account for transfer of funds to his relatives;
(iii) The deceased having been threatened by the
accused and by his "house car driver" with death; and
(iv) The recovery of the suicide note which was also
uploaded on the Facebook account of the deceased; The
suicide note in turn provides a detailed account of
(a) The wealth amassed by the second respondent-
accused who was an SLAO, worth over Rs. 100 crores;
(b) The second respondent-accused having converted
approximately Rs. 100 crores into currency notes of various
(c) The knowledge of the deceased with respect the
illegal activities of the accused;
(d) The accused having used the deceased for the
conversion of currency notes amounting to over Rs. 75
(e) The payment of the salary of the deceased, who
was a driver having been stopped for three months;
(f) A threat of murder being administered to the
deceased following a shortage in the currency; and
(g) The deceased having decided to end his life by
consuming poison, having suffered at the hands of the
accused.
18. In this backdrop, it is impossible on a judicious
purview of the contents of the complaint and the suicide note
for a judicial mind to arrive at a conclusion that a case for
quashing the FIR had been established. In arriving at that
conclusion, the Single Judge has transgressed the well settled
limitations on the exercise of the powers under section 482
CrPC, 1973 and has encroached into a territory which is
reserved for a criminal trial.
19. The High Court has the power under Section 482
to issue such orders as are necessary to prevent the abuse of
legal process or otherwise, to secure the ends of justice. The
law on the exercise of power under Section 482 to quash an
FIR is well settled. In State of Orissa v. Saroj Kumar Sahoo,
(2005) 13 SCC 540, a two judge Bench of this Court,
"8. [...] While exercising powers under the section,
the court does not function as a court of appeal or
revision. Inherent jurisdiction under the section though
wide has to be exercised sparingly, carefully and with
caution and only when such exercise is justified by the
tests specifically laid down in the section itself. It is to be
exercised ex debito justitiae to do real and substantial
justice for the administration of which alone courts exist.
Authority of the court exists for advancement of justice
and if any attempt is made to abuse that authority so as
to produce injustice, the court has power to prevent
abuse. It would be an abuse of process of the court to
allow any action which would result in injustice and
prevent promotion of justice. In exercise of the powers
court would be justified to quash any proceeding if it
finds that initiation/continuance of it amounts to abuse of
the process of court or quashing of these proceedings
would otherwise serve the ends of justice. When no
offence is disclosed by the report, the court may examine
the question of fact. When a report is sought to be
quashed, it is permissible to look into the materials to
assess what the report has alleged and whether any
offence is made out even if the allegations are accepted
in toto."
20. In Bhajan Lal (supra), this Court laid down the
principles for the exercise of the jurisdiction by the High
Court in exercise of its powers under section 482 of the
CrPC, 1973 to quash an FIR. Justice Ratnavel Pandian laid
down the limits on the exercise of the power under section
482 CrPC, 1973 for quashing the FIR and observed:
"102. In the backdrop of the interpretation of the
various relevant provisions of the Code under Chapter XIV
and of the principles of law enunciated by this Court in a
series of decisions relating to the exercise of the
extraordinary power under Article 226 or the inherent
powers under Section 482 of the Code which we have
extracted and reproduced above, we give the following
categories of cases by way of illustration wherein such power
could be exercised either to prevent abuse of the process of
any court or otherwise to secure the ends of justice, though it
may not be possible to lay down any precise, clearly defined
and sufficiently channelised and inflexible guidelines or rigid
formulae and to give an exhaustive list of myriad kinds of
cases wherein such power should be exercised.
(1) Where the allegations made in the first information
report or the complaint, even if they are taken at their face
value and accepted in their entirety do not prima facie
constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information
report and other materials, if any, accompanying the FIR do
not disclose a cognizable offence, justifying an investigation
by police officers under Section 156(1) of the Code except
under an order of a Magistrate within the purview of Section
155(2) of the Code.
(3) Where the uncontroverted allegations made in the
FIR or complaint and the evidence collected in support of the
same do not disclose the commission of any offence and make
out a case against the accused.
(4) Where, the allegations in the FIR do not constitute
a cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
Section 155(2) of the Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently improbable on the
basis of which no prudent person can ever reach a just
conclusion that there is sufficient ground for proceeding
against the accused.
(6) Where there is an express legal bar engrafted in
any of the provisions of the Code or the concerned Act (under
which a criminal proceeding is instituted) to the institution
and continuance of the proceedings and/or where there is a
specific provision in the Code or the concerned Act,
providing efficacious redress for the grievance of the
aggrieved party.
(7) Where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance on
the accused and with a view to spite him due to private and
personal grudge."
The judgment in Bhajan Lal (supra) has been recently
relied on by this Court in State of Telangana v. Managipet,
26. Instead of applying this settled principle, the High
Court has proceeded to analyze from its own perspective the
veracity of the allegations. It must be emphasized that this is
not a case where the High Court has arrived at a conclusion
that the allegations in the FIR or the complaint are so
absurd and inherently improbable on the basis of which no
prudent person could ever reach a just conclusion that there
is sufficient ground for proceeding against the accused. Nor
is this a case where the criminal proceeding is manifestly
mala fide or has been instituted with an ulterior motive of
taking vengeance on the accused. On the contrary, the
specific allegations in the FIR and in the complaint find due
reflection in the suicide note and establish a prima facie
case for abetment of suicide within the meaning of Sections
306 and 107 of the IPC. The entire judgment of the High
Court consists of a litany of surmises and conjectures and
such an exercise is beyond the domain of proceeding under
section 482 of the CrPC, 1973. The High Court has
proceeded to scrutinize what has been disclosed during the
investigation, ignoring that the investigation had been
stayed by an interim order of the High Court, during the
pendency of the proceedings under section 482.
27. The High Court observed that a prima facie case
for the commission of offence under Section 306 of the IPC is
not made out since: i) the suicide note does not describe the
specific threats; ii) details of the alleged demand of Rs. 8 lacs
from the deceased by the respondent-accused are not set out
in the suicide note; and iii) no material to corroborate the
allegations detailed in the suicide note has been unearthed by
the investigating agency. The High Court observed that since
the deceased took considerable time to write a twelve page
suicide note, "it would have been but natural for the author to
set out the details". The High Court has evidently travelled
far beyond the limits of its inherent power under section 482
CrPC, 1973 since instead of determining whether on a
perusal of the complaint, a prima facie case is made out, it
has analysed the sufficiency of the evidence with reference to
the suicide note and has commented upon and made strong
observations on the suicide note itself.
xxx xxx xxx xxx xxx xxx
Further, the observation of the High Court that there
is no material to corroborate the allegations made in the
suicide note is erroneous since it is not a consideration for
the High Court while exercising its power under section 482
of the CrPC, 1973 particularly in view of the fact that the
trial has not begun and the Single Judge had stayed the
investigation in the criminal complaint.
xxx xxx xxx xxx xxx xxx
The alleged suicide is of a person who was working as
a driver of a Special Land Acquisition Officer, who is a
public servant and against whom serious and grave
allegations of amassing wealth disproportionate to the known
sources of income were made by the deceased. The suicide
note contains a detailed account of the role of the accused in
the events which led to the deceased committing suicide.
These are matters of investigation and possibly trial. The
High Court stalled the investigation by granting an interim
order of stay. If the investigation had been allowed to
proceed, there would have been a revelation of material facts
which would aid in the trial, for the alleged offence against
the second respondent.
31. For the above reasons, we allow the appeals and
set aside the impugned judgment and order of the Single
Judge of the High Court of Karnataka dated 29 May 2020. In
the circumstances, the petition for quashing the FIR instituted
by the respondent-accused shall stand dismissed.
32. Pending application(s), if any, stand disposed of.”
A perusal of the above judgment would show that in the
said case, the FIR was registered under Section 306 and there was a
detailed suicide note of the deceased alleging that the accused person
had committed corruption of hundreds of crores and since the
deceased was in the knowledge of the said transactions, the accused
person had threatened to kill him and inspite of that, the High Court
had disregarded the suicide note without recording a finding that the
criminal proceedings were manifestly mala fide or had been instituted
with an ulterior motive and the Hon’ble Supreme observed that the
judgment of the High Court was based on surmises and conjectures
and the High Court had made observations that the allegations in the
FIR were not supported by any material during investigation whereas,
the investigation had been stayed by the High Court itself. In the said
judgment, the principles as observed in the case of Bhajan Lal
(supra) were detailed and it was also observed that the principles were
illustrative and not exhaustive.
A comprehensive reading of the above judgments would
show that the exercise of power under Section 482 CrPC for quashing
of an FIR has not been absolutely excluded where a report under
Section 173 CrPC is not filed. The said power is to be exercised
sparingly and no straitjacket formula can be laid down as to in which
situations and when the said power can be or should be exercised.
Some of the situations in which, depending upon the facts and
circumstances of the case, the said power may be exercised in spite of
the report under Section 173 CrPC having not been filed, are
illustrated hereinbelow:
i. Where a second FIR has been registered with respect to
an incident regarding which there is already an FIR
registered, then the second FIR could be sought to be
quashed in a proceeding under Section 482 on the
principle laid down by the Hon’ble Supreme Court in
T.T. Antony (supra) and Amitbhai Anil Chandra Shah
(supra) without waiting for the report under Section 173
ii. Where a bare reading of the FIR does not disclose the
commission of any offence. Reference may be made to
the judgment of the Hon’ble Supreme Court in Ajay
iii. Where the FIR has been registered for offences which are
non-cognizable, then the FIR could be quashed without
waiting for the report under Section 173 Cr.P.C. as the
police would have no jurisdiction to investigate the said
offences.
iv. Where the FIR has been registered, for offences not
exceeding three years, after the period of limitation as
provided for under Section 468 CrPC, except if saved by
any specific provision of the Code.
v. Where the FIR has been registered in violation of any
judicial order.
vi. Where the registration of the FIR is in violation of a
statute or some principle settled by judicial
pronouncement and the said violation can be
demonstrated from the FIR and unimpeachable material
on record.
a) For example, a person prosecuted for an
offence for being vicariously liable without there being
any provision for vicarious criminal liability in the statute
under which he is sought to be prosecuted.
Reference may be made to the judgment of the Hon’ble
Supreme Court in “R. Kalyani” (supra).
b) The FIR and its proceedings are an abuse of the process
of law and the said fact is apparent from the material
before the court as in the case of Moti Lal (supra)
wherein the Hon’ble Supreme Court had observed that a
case of suppression of material facts could amount to
playing fraud with the Court and the maxim “suppressio
veri, expression faisi” i.e suppression of the truth is
equivalent to the expression of falsehood, gets attracted.
Reference may also be made to the judgment of the
coordinate bench of this Court in Ramesh Chand
It is reiterated that the above said instances are only
enumerative and not exhaustive.
It is however, clarified that whether a case for quashing is
made out or not, even in a case where the abovesaid issues arise
would depend upon the facts and circumstances of the said case and it
cannot be stated in absolute terms that in all cases where the above
said issues arise that the FIR has to be quashed. It is further clarified
that all the necessary facts should be before the Court so as to
undisputedly raise the above issues before the Court and should not
depend upon the facts which might emerge from the report under
Adverting to the facts of the present case and after
keeping in mind the observations of the Hon’ble Supreme Court and
of various High Courts, detailed hereinabove, this Court is of the
opinion that the present FIR deserves to be quashed for the reasons
detailed hereinbelow.
A perusal of the present FIR dated 15.09.2021 would
show that the period for which the offences alleged to have been
committed is from 10.10.2019 to 15.09.2021 and the same are with
respect to two incidents. First incident being with respect to the
petitioner allegedly involving respondent No.2 in a false rape case in
the year 2019, which has been registered on the statement of ‘R’
(name withheld) against Gurpreet Singh @ Goldy, Jagdeep Singh son
of Najar Singh and respondent no.2 and the second incident pertains
to the year 2020 involving Gurjeet Singh and one girl ‘S’ (name
withheld) and the allegation against the petitioner in the same is with
respect to demand of Rs.14 lakhs from respondent No.2, failing
which, it has been alleged that he would involve the respondent No.2
in a false rape case. It is not in dispute that the first incident in the
present FIR pertains to FIR No.263 dated 10.10.2019, registered
under Sections 376, 342, 506 and 120-B IPC and Section 8 of the
Protection of Children from Sexual Offence Act, 2012. In the said
FIR, the allegations made by the prosecutrix ‘R’ are against
respondent No.2 also. It is not in dispute that respondent No.2 had
filed an application under Section 156(3) Cr.P.C. against the said
prosecutrix ‘R’, the present petitioner and three other persons for
registration of an FIR under Sections 211, 193, 389 and 120-B IPC on
the averment that in the FIR No.263 dated 10.10.2019, the police had
found the respondent no.2 to be innocent and thus, a false case was
registered against Respndent no.2. The relevant part of the said
application dated 07.07.2020 under Section 156(3) is reproduced
“Jagdeep Singh alias Jolly, age around 30 years s/o
presently R/o Ward No.9, Lehra, Tehsil Lehra, District
1. “R”xxxxx D/o xxx xx 2. Sarabjit Kaur W/ Amarjit
Singh 3. Kulwant Singh alias Kanti S/o Karnail Singh 4.
Lachhman Singh S/o Gurcharan Singh residents of Village
Gurmail Singh alias Mely S/o Bant Singh R/o Village
Applicant under section 156 (3) Cr.PC for
instructing SHO P.S. Lehra for registering case
U/s 211, 193, 389, 120-B IPC against the
12) That after getting registered false case against the
applicant, Gurmail Singh alias Mely had. called up my
father on phone and had said that 1 and aforesaid. accused
had in connivance got registered this false case and said
that if you will give us Rs. 14 lakhs only then we will leave
you, otherwise be ready to face its consequences. The
accused Gurmail Singh alias Mely had called up my father
on phone only after registration of case. This fact can be
cleared by taking the call recording.
13) That the aforesaid accused in mutual
connivance, for settling old enmity with me and by fearing
me of alleging about serious offence against me, for
extracting heavy amount from me, 04 days' after 07-10-
2019, had got registered falsely Case No. 263/2019, under a
planned conspiracy. In this connection the enquiry of the
enquiry officer who had declared me innocent is enclosed
with the application.”
Perusal of the above would show that the allegations
made in the said application under Section 156(3) Cr.P.C. pertain to
the allegations made in the first part of the present FIR. The
averments made in the said application have also been relied upon by
learned counsel for respondent No.2 while making his submissions
and it was argued by the said counsel that the allegations contained in
paragraph 7 (Page 52 of the paperbook) of the said application, would
make out a case for the registration of FIR against the present
petitioner. On 20.07.2020, Judicial Magistrate, 1st Class, Moonak after
considering the allegations made in the application under 156(3)
Cr.P.C. had observed that the Court was of the opinion that the facts
disclosed in the application did not warrant registration of an FIR. The
order dated 20.07.2020 is reproduced as under: -
Perusal of the record reveals that FIR against the
complainant was registered on the statement under Section
376 IPC and Section 8 of POCSO Act. The Court is of the
opinion that the fact disclosed in the application does not
warrant be registration of FIR. Thereby, the present
application is treated as criminal complaint and the case is
adjourned to 21.08.2020 for pre summoning evidence.
It is not in dispute that the said order had not been
challenged and has thus attained finality. The case was then fixed for
pre-summoning evidence. It would be relevant to point out that after
registration of the present FIR, the said complaint under Section
156(3) Cr.P.C. has been withdrawn, vide order dated 11.12.2021
(Annexure P-11). It is not in dispute that inspite of the said criminal
complaint being pending, respondent No.2 has chosen to file the
present complaint before the police on the basis of which, the present
FIR has been registered, without disclosing the fact with respect to the
filing of the application under Section 156(3) Cr.P.C. or the order
dated 20.07.2020. The said fact has also not been disclosed in the
alleged statement under Section 161 Cr.P.C., which was stated to have
been recorded on 16.09.2021 (Annexure R-2/3), which was referred to
by the learned counsel for respondent No.2. Even with respect to the
second incident, it is not in dispute that respondent No.2 had filed an
application under Section 156(3) Cr.P.C. against the present petitioner
and other accused. The relevant portion of the said application
(Annexure R2/1) is reproduced hereinbelow: -
Sub: Application u/s 156(3) Cr.P.C. for direction to
S.H.O., Lehra, Distt. Sangrur to register the
case against the accused 1) Buta Singh HC,
Bant Singh R/o village BakhoraKhurad, Tehsil
Lehra, Distt. Sangrur u/s 116, 195, 211, 384,
389 read with 511, 120-B of IPC.
5. That when the complainant was exonerated
from FIR No. 263 of 10-10-2019 he was apprehensive that the
accused can again hatch any conspiracy to implicate him any
other false case so he moved applications to CM Punjab,
DGP. Punjab Police, Punjab, Chief Secretary, Punjab on 15-
10-19 stating that he is fearing that the accused may again
implicate him any false case.
6. Then the fear of the complainant proved true
when a client namely Gurjeet Singh came to him and told
him that the was facing troubles by a lady namely “S”xxxx
W/oxxxx R/o xxxxxxxxx(withheld) who was threatening him
and demanding Rs 40000 per month as extortion money. He
told the complainant that he was already in relation with that
lady but now she had started to threaten him. So the
complainant advised him to file complaint u/s 384 against the
lady for blackmailing with police. On my advice he filed
application and the police registered an FIR no. 281 of 3-11-
2020 at Police station Lehra against the lady namely Sxxxxxx.
She was arrested on 6 11-2020 in the said case by the police
and was produced at court at Moonak She got regular bail
from the court at Moonak. Thereafter the lady Sxxxx got
registered an FIR no. 307 of 1-12-2020 police station City
Ratia u/s 376(2)(N), 384, 450, 34 of IPC. This case was
cancelled by the police after inquiry being found false.
7. That due to close proximity with Gurjeet Singh
i.e. my client who was my classmate too I was pursuing the
matter of FIR no. 307 of 2020 which was got registered by
Sxxxx against him and for that purpose I visited Fatehabad
DSP office during inquiry of that case. I talked with
Sxxxxthere and advised her to compromise the matter then
she told me that Buta Singh HC introduced me to a Sarpanch
who arranged my bail at court at Moonak. Buta Singh HC
told her to act as per advice of Sarpanch in future and the
Sarpanch and she were having conversation on phone. Many
days they kept pressurising her for registration of the case at
Fatehabad. At that time Sarpanch was inst, gating her to file
application of rape against Jolly Advocate (Complainant)
also and told her to say that he had raped me during custody
of police. She also told the complainant that her internal
voice did not allow her to make allegations against
complainant and she told the complainant that another
person also instigated her on the instance of Sarpanch.”
Perusal of the said averments would show that
respondent No.2 sought to get an FIR registered under the same
offences under which the present FIR has been registered. Perusal of
the allegations/averments in the said application would also show that
the same are with respect to the second incident as detailed in the
present FIR. The said application was withdrawn on 22.03.2021 by
respondent No.2. The order dated 22.03.2021 is reproduced
Statement of applicant Jagdeep Singh @ Jolly
recorded qua withdrawal of the present application.
In view of the statement suffered by applicant, the
present application is hereby dismissed as withdrawn. File be
consigned to Record Room Moonak.
It is apparent from the above that even the said
application under Section 156 (3) was filed prior to the filing of
present complaint on the basis of which the present FIR was
registered. Even the said application under Section 156(3) Cr.P.C. or
the order dated 22.03.2021 has not been referred to either in the FIR
or in the alleged statement under Section 161 Cr.P.C. nor the
respondents have been able to show any document which was the
basis of the registration of the FIR, where reference of the proceedings
under Section 156(3) have been made. The Hon’ble Supreme Court in
Moti Lal Songara’s case (supra) has observed as under: -
“2. The factual score of the case in hand frescoes a
scenario and reflects the mindset of the first respondent which
would justifiably invite the statement “court is not a
laboratory where children come to play”. The action of the
accused-respondent depicts the attitude where one
calculatedly conceives the concept that he is entitled to play a
game of chess in a court of law and the propriety, expected
norms from a litigant and the abhorrence of courts to the
issues of suppression of facts can comfortably be kept at bay.
Such a proclivity appears to have weighed uppermost in his
mind on the base that he can play in aid of technicalities to
his own advantage and the law, in its essential substance, and
justice, with its divine attributes, can unceremoniously be
buried in the grave.
18. The second limb of the submission is whether in the
obtaining factual matrix, the order passed by the High Court
discharging the accused- respondent is justified in law. We
have clearly stated that though the respondent was fully
aware about the fact that charges had been framed against
him by the learned trial Judge, yet he did not bring the same
to the notice of the revisional court hearing the revision
against the order taking cognizance. It is a clear case of
suppression. It was within the special knowledge of the
accused. Any one who takes recourse to method of
suppression in a court of law, is, in actuality, playing fraud
with the court, and the maxim supressioveri, expression faisi,
i.e., suppression of the truth is equivalent to the expression of
falsehood, gets attracted.
19. Consequently, the appeal is allowed, the order
passed by the High Court in Criminal Revision No. 327 of
2011 and the order passed by the learned Additional District
and Sessions Judge, No.1, Jodhpur, in Criminal Revision No.
7 of 2009 are set aside and it is directed that the trial which is
pending before the learned Additional District and Sessions
Judge, No. 3, Jodhpur, shall proceed in accordance with
law”.
A perusal of the above would show that the Hon’ble
Supreme Court had come down heavily on the litigants/persons who
are guilty of suppression of facts. In the said case, the accused while
challenging the summoning order under Section 319 Cr.P.C., had not
brought to the notice of the Court that the charges had been framed
against him and was successful in getting the order under Section 319
Cr.P.C. set aside, which was reversed by the Hon’ble Supreme Court.
While reversing the said order, the factum with respect to suppression
of material fact, was considered to be one of the primary grounds to
be held against the accused therein, and it was observed that anyone
who takes recourse to the method of suppressing information in a
court of law, is, in actuality, playing fraud with the court, and the
maxim supressio veri, expression faisi, i.e., suppression of the truth is
equivalent to the expression of falsehood, gets attracted.
A coordinate bench of this court in Kuldip Raj
Mahajan’s case (supra) had observed that the High Court cannot be a
helpless spectator when it is made out that the criminal prosecution is
mala fide and an abuse of the process of the court and that the High
Court has inherent power and corresponding duty to prevent the abuse
of the process of the court or otherwise to secure the ends of justice
and in the said case, the petition under Section 482 was allowed on
grounds which are akin to the present case inasmuch as, there was
concealment by the complainant in the said case as he did not disclose
in his complaint about the cancellation of the FIR despite having
knowledge of the same and the same was considered to be an
indicator of mala fide on the part of the complainant and was
considered as one of the primary grounds for quashing the
proceedings therein
The Hon’ble Supreme Court in Priyanka Srivstava case
(supra) has also held as under: -
“26. At this stage it is seemly to state that power under
Section 156(3) warrants application of judicial mind. A court of law
is involved. It is not the police taking steps at the stage of Section
154 of the code. A litigant at his own whim cannot invoke the
authority of the Magistrate. A principled and really grieved citizen
with clean hands must have free access to invoke the said power. It
protects the citizens but when pervert litigations takes this route to
harass their fellows citizens, efforts are to be made to scuttle and
curb the same.
27. In our considered opinion, a stage has come in this
country where Section 156(3) Cr.P.C. applications are to be
supported by an affidavit duly sworn by the applicant who seeks the
invocation of the jurisdiction of the Magistrate. That apart, in an
appropriate case, the learned Magistrate would be well advised to
verify the truth and also can verify the veracity of the allegations.
This affidavit can make the applicant more responsible. We are
compelled to say so as such kind of applications are being filed in a
routine manner without taking any responsibility whatsoever only to
harass certain persons. That apart, it becomes more disturbing and
alarming when one tries to pick up people who are passing orders
under a statutory provision which can be challenged under the
framework of said Act or underArticle 226 of the Constitution of
India. But it cannot be done to take undue advantage in a criminal
court as if somebody is determined to settle the scores. We have
already indicated that there has to be prior applications under
Section 154(1)and 154(3)while filing a petition under Section
156(3). Both the aspects should be clearly spelt out in the
application and necessary documents to that effect shall be filed. The
warrant for giving a direction that an application under Section
156(3) be supported by an affidavit so that the person making the
application should be conscious and also endeavour to see that no
false affidavit is made. It is because once an affidavit is found to be
false, he will be liable for prosecution in accordance with law. This
will deter him to casually invoke the authority of the Magistrate
under Section 156(3). That apart, we have already stated that the
veracity of the same can also be verified by the learned Magistrate,
regard being had to the nature of allegations of the case.”
Perusal of the above judgment would show that it was
observed by the Hon’ble Supreme Court that the exercise of power
under Section 156(3) Cr.P.C. warrants application of judicial mind as
a court of law is involved and the said proceedings are on a higher
footing than the proceedings under Section 154 Cr.P.C. It was further
observed that in the application under Section 156(3)Cr.P.C., it was
necessary to spell out that the application under Sections 154(1) and
154(3) Cr.P.C. has been filed before filing the petition under Section
156(3) Cr.P.C. Even supporting affidavit was required to be
submitted. The copy of the said judgment was circulated to all the
High Courts for further circulation to the Sessions Judges and to the
Magistrates. Once, in the application under Section 156(3)Cr.P.C., it
was found incumbent to mention about the filing of application before
the police, it would be equally incumbent, rather, the higher duty of
the complainant to mention about the application under Section
156(3) Cr.P.C. filed and the orders thereof, in the complaint before the
police on the basis of which the FIR has been registered, when the
complaint before the police is subsequent to the application filed
under Section 156(3) Cr.P.C. In the present case, the same has
admittedly not been done and the same amounts to suppression of a
material fact. As earlier noticed hereinbefore, vide order dated
20.07.2020, it had been noticed by the Judicial Magistrate, 1st Class,
Moonak in the application under Section 156(3) Cr.P.C. that the
allegations made in the complaint did not warrant registration of an
FIR and thus, the subsequent registration of the present FIR is in
violation of the order passed by the Judicial Magistrate, 1st Class,
Moonak. In fact, both the applications under Section 156(3) Cr.P.C.
have been dismissed as withdrawn. In the first application under
Section 156(3) Cr.P.C. observations had come against respondent
No.2 and thus, it seems that instead of pursuing his complaint or
challenging the order dated 20.07.2020, respondent No.2 had got the
present FIR registered. The said act of Respondent no.2 amounts to
forum shopping. Moreover, police officials cannot be permitted to act
in violation of judicial orders or judicial proceedings. The registration
of the present FIR is thus, illegal on the said account also in addition
to there being active concealment of suppression of material facts and
thus, deserves to be quashed on each of the said grounds.
Another important aspect of the present case is that the
allegations in the FIR are to the effect that in the FIR registered in the
year 2019 with respect to the prosecutrix ‘R’, the respondent No.2 had
been found to be innocent by the police and thus, the said FIR is false
as far as respondent No.2 is concerned, also would have no legs to
stand on inasmuch as, the said prosecutrix ‘R’ has appeared in the
witness box in the proceedings in FIR No.263 dated 10.10.2019 as
PW1 on 17.08.2021 and has levelled allegations against respondent
No.2 and an application dated 24.08.2021 had been filed under
Section 319 Cr.P.C. against respondent No.2 on the basis of the
evidence given by the prosecutrix ‘R’. The said application has been
allowed vide order dated 01.12.2021. The relevant portion of the said
order (Annexure P-9) is hereinunder: -
Gurpreet Singh and others
R/W 6 Prevention of Children from Sexual Offences
Application U/s 319 Cr.P.C. for summoning
Jagdeep Singh @ Jolly son of Hargopal Singh,
R/o Bakhora Khurd to face trial along with the
xxx xxx xxx xxx xxx xxx xxx
8. Keeping in view the observation, made above, this
Court is satisfied that the evidence on record against the
accused, proposed to be summoned, is too strong and cogent
to make out more than prima facie case required for framing
of charge but short of satisfaction to the extent that if it goes
unrebutted, would lead to conviction. Accordingly, the
application is allowed. Accused Jagdeep Singh @ Jolly son
of Hargopal Singh resident of Bakhora Khurd is ordered to
be summoned to face trial under sections 363, 376 (D), and
384 Indian Penal Code, along with the other accused for
Perusal of the above order would show that respondent
No.2 has been summoned in order to face trial under Sections 363,
376(D) and 384 of the IPC along with the other accused. Since
respondent No.2 has been summoned under Section 319 Cr.P.C. after
considering the evidence of the prosecutrix and also the fact that
respondent No.2 had been given a clean chit by the police, the clean
chit given by the police loses its significance and thus, the foundation
laid down by respondent No.2 for the registration of the said FIR
would have no legs to stand on.
A Coordinate Bench of this Court in “Ramesh Chand
Vs. State of Haryana”, reported as 2006 (4) RCR (Cr) 718 had
observed as under: -
“Petitioner Ramesh Chand has filed this petition under
Section 482 of the Code of Criminal Procedure for quashing
of the kalandra submitted by the police of Police Station
Nissang, District Karnal, against him under Section 182
Indian Penal Code and the consequent proceedings.
2. In this case, on a complaint made by the petitioner,
FIR No. 31 dated 1.2.1999 was registered at Police Station
Nissang under Section 379 Indian Penal Code against Sona
Devi and her son Balbir alias Dalbir. In the complaint, it was
alleged that Smt. Sona Devi, the then Sarpanch of Gram
Panchayat, Village Amunpur, with the help of certain persons
have cut trees standing on the panchayat land. Subsequently,
during the investigation, the police found the allegations to be
false. Consequently, the aforesaid FIR was got cancelled.
Thereafter, the police submitted impugned kalandra under
Section 182 Indian Penal Code against the petitioner for
initiating proceeding against him for giving false information
to the police.
3. It is the case of the petitioner that after cancellation
of the aforesaid FIR, he filed a private complaint under
sections 379, 201, 467, 468, 471 and 120B Indian Penal Code
against Sona Devi and others, wherein, after recording
preliminary evidence, the trial Court has summoned the
accused persons to face trial under Section 379 Indian Penal
Code. Copies of the complaint and the summoning order have
been placed on record as Annexures P-2 and P-3. The said
complaint is still pending. In view of this fact, counsel for the
petitioner submits that once on the complaint filed by the
petitioner on the same allegations, the accused have been
summoned, the proceedings initiated against him by the
police under Section 182 Indian Penal Code for giving them
false information are abuse of process of law and are liable
to be quashed.
4. Counsel for the respondent-State has not disputed
the filing of the private complaint by the petitioner against the
accused on the similar allegations as well as the summoning
of the accused in the said complaint by the trial Court. The
pendency of the complaint is also not disputed.
5. This Court in Crl. Misc. No. 18769-M of 2005,
decided on September 13, 2006, while following the
judgments of the Supreme Court in Gopal Vijay Verma v.
Bhuneshwar Prasad Sinha, 1982(3) SCC 510 and H.S.
Bains v. State (Union Territory of Chandigarh), AIR 1980
Supreme Court 1883 and a Division Bench decision of the
Patna High Court in Munilal Thakur and others v. Nawal
Kishore Thakur and another, 1985 Criminal Law Journal
437, has held that a Magistrate, even after accepting the final
report after hearing the complainant, can still take
cognizance of the offence upon a complaint on same or
similar allegations of fact.
6. In view of the admitted facts that in the private
complaint filed by the petitioner, the accused have been
summoned, though they were found innocent by the police in
the FIR and keeping in view the aforesaid settled proposition
of law, at this stage it cannot be said that the allegations
levelled by the petitioner in the FIR are false. Therefore, in
my opinion, the proceedings initiated by the police against
the petitioner under Section 182 Indian Penal Code are liable
to be quashed.
7. Resultantly, the instant petition is allowed. The
kalandra submitted by the police of Police Station Nissang,
District Karnal, against the petitioner under Section 182
Indian Penal Code and the consequent proceedings are
quashed.”
A perusal of the above judgment would show that a
petition under Section 482 was allowed and the proceedings under
Section 182 CrPC were quashed on the ground that after the police
had found the case registered by the petitioner therein to be false and
submitted a cancellation report and initiated proceeding under Section
182 IPC against the petitioner therein, on a complaint filed by the
complainant/petitioner therein the accused person had been
summoned and it was thus, observed that since the complaint was
pending, thus, the proceeding under Section 182 IPC were liable to be
quashed. The law laid down in the above-said judgment would apply
on all fours to the present case.
This Court has also considered the fact, as highlighted by
learned counsel for petitioner, that respondent No.2 has been filing
one application after the other in order to influence the prosecutrix ‘R’
in the case and in order to pressurize her not to give statement against
respondent No.2. Initially, the proceedings under Section 182 Cr.P.C.
were sought to be initiated against prosecutrix ‘R’, which was not
initiated against her on account of the opinion given by the Deputy
DA, Sangrur, which has been annexed as Annexure P-4 with the
present petition. The second attempt was made by moving an
application under Section 156(3) Cr.P.C. dated 07.07.2020 (the
relevant portion of which has been reproduced hereinabove), in which
the said prosecutrix was arrayed as accused No.1 and the present
petitioner was also made accused No.5 and in the said case, the
Judicial Magistrate, 1st Class, Moonak had observed on 20.07.2020
(relevant portion has been reproduced hereinabove) that the same did
not warrant registration of an FIR. Third attempt has been made, in
which, an application was sought to be filed through the said
prosecutrix, in which certain averments were made in favour of
respondent No.2 (Annexure R-2/4), even contrary to the evidence
which had been given by the prosecutrix before the Court on
17.08.2021 (Annexure P-7). The said application/complaint was
withdrawn on 18.11.2021. Learned counsel for the petitioner has
highlighted that the registration of the present FIR on 15.09.2021 was
the fourth attempt made, as respondent No.2 had an understanding
that the present petitioner might be able to influence the prosecutrix in
withdrawing the application under Section 319 Cr.P.C. in the
proceeding of FIR No.263 dated 10.10.2019. To support this
argument, it was highlighted that on 17.08.2021, the prosecutrix ‘R’
had given her evidence against respondent No.2 on the basis of which,
an application dated 24.08.2021 was filed under Section 319 Cr.P.C.
for summoning respondent No.2 and it is thereafter, the present FIR
has been registered on 15.09.2021. The said act and conduct of
respondent No.2 also shows that registration of the FIR is an abuse of
the process of the Court and respondent No.2 has indulged in forum
shopping and has got present FIR registered with the mala-fide intent
and with an ulterior motive of taking vengeance on the petitioner with
whom even as per his own version he has enmity. The present petition
thus, deserves to be quashed.
Certain other factors are also sought to be highlighted as
the same would also substantiate the reasons detailed above for
allowing the present petition for quashing the FIR.
The present FIR has been registered under Sections 384,
506 and 511 IPC. The allegations on the basis of which Section 506
IPC has been sought to be added in the FIR is to the effect that the
petitioner in connivance with other persons were demanding Rs.14
lakhs from the complainant and threatened that if the said amount was
not given, then, a false rape case will be got registered against
respondent No.2. Apparently it seems that it is the said alleged threat
which as per respondent No.2 and the police, constitutes the offence
under Section 506 IPC. A Co-ordinate Bench of this Court in the case
titled “Surinder Suri Vs. State of Haryana and others, reported as
1996(2) R.C.R. (Criminal) 701, has held as under: -
“This is a petition under Section 482 of the Criminal
Procedure Code filed by Surinder Suri and Ramesh Kumar
sons of Kimti Lal whereby they have prayed for the quashing
of FIR No. 297 dated 4.8.1995 under Sections 506/34 of the
Indian Penal Code, P.S. City Jagadhri and the resultant
proceedings thereof pending before Ms. Sarita Gupta,
xxx xxx xxx xxx xxx xxx
14. According to the allegations set out in FIR No.
297 dated 4.8.1995 under section 506/34 of the Indian Penal
Code by Pawan Kumar, on 2.8.1995 at about 7.00 P.M., he
alongwith Bhusan and Ajit Kumar were passing through
HUDA Colony, Jagadhri. He was driving scooter ahead of
Bhusan and Ajit Kumar. They were behind him. Surinder Suri
and his brother Ramesh came there all of sudden. Surinder
Suri was driving scooter and his brother Ramesh Kumar was
sitting on the pillion. They slowed down their scooter and
came there. They threatened to kill him and abused him.
They further threatened that in future if he published any
news against them, he would be eliminated. In the meantime,
Bhusan and Ajit also came near him. Thereupon, Surinder
Suri and Ramesh Kumar sped away their scooter. Pawan
Kumar is a Press Reporter feeding news to Punjab Kesri.
Pawan Kumar, Bhusan and Ajit went to their house and
narrated the occurrence to Pawan Kumar's brother. They
reached police Station, City Jagadhri at 10.00 P.M. where
ASI Amarnath met them. He was in civilian dress. He told
them that if they reported the matter at the police station, they
would have to face the consequences.
16. Court while considering the question of
quashing of the first information report, has to see the
malafides of the complainant, if there be any. If dominant
purpose in filing the first information report is malafide,
FIR would have to be quashed. This view was taken by the
Full Bench of the Delhi High Court in M/s Neelam
Mahajan Singh v. Commissioner of Police and others,
1994(2) CLR 181. Article 226 of the Constitution confers
extraordinary jurisdiction on the High Court to issue
appropriate writ, order or direction as may be necessary in
the administration of justice. This is a wide discretionary
power. Similarly, the High Court has wide inherent powers
under Section 482 of the Code of Criminal Procedure. This
power is, however, to be exercised with certain amount of
circumspection and with utmost care and caution. Section
503 of the Indian Penal Code defines criminal intimidation as
"Whoever threatens another with any injury to his
person, reputation or property, or to the person or reputation
of any one in whom that person is interested, with intent to
cause alarm to that person, or to cause that person to do any
act which he is not legally bound to do, or to omit to do any
act which that person is legally entitled to do, as the means of
avoiding the execution of such threat, commits criminal
intimidation.
Explanation - A threat to injure the reputation of any
deceased person in whom the person threatened is interested,
is within this section."
17. If we carefully go through the provisions of Section
503 of the Indian Penal Code, I do not think the allegations
made by Pawan Kumar on the basis of which FIR No. 297
dated 4.81995 was registered will satisfy the ingredients of
Section 503 of the Indian Penal Code. The gist of the offence
is the effect which the threat is intended to have upon the
mind of the person threatened. The threat must be one which
can be put into execution by the person threatening. A threat,
in order to be indictable must be made with intent to cause
alarm to the complainant. As for instance mere vague
allegation by the accused that he is going to take revenge by
false complaints cannot amount to criminal intimidation.
xxx xxx xxx xxx xxx xxx
I am equally alive that criminal prosecution should
be quashed in exercise of these powers by this Court if the
intention of the complainant is malicious and is to wreak
vengeance on the accused and to spite him due to private
and personal grudge and not to vindicate the law for the
good of the society.
19. For the reasons given above, this petition is
accepted and FIR No. 297 dated 4.8.1995 under section
506/34 of the Indian Penal Code registered at Police Station
City Jagadhri together with the proceedings consequential
thereto pending before the Judicial Magistrate Ist Class,
Jagadhri is quashed.”
A perusal of the above judgment would show that in the
said case, petitioner/accused therein had come close to the
complainant while riding the scooter and threatened to kill him and
abused him and further threatened that in future if the complainant
therein, would publish any news article against them, the said
complainant would be eliminated. Even in the said situation, a Co-
ordinate Bench held that the mere vague allegations by the accused
that he was going to take revenge by filing false complaints cannot
amount to criminal intimidation. It was further observed that in case,
the dominant purpose in filing the FIR is malafide then the FIR would
have to be quashed and reliance had been placed upon the judgment of
a Full Bench of the Delhi High Court in M/s Neelam Mahajan Singh
vs. Commissioner of Police and others, 1994(2) CLR 181. In
Kuldeep Raj Mahajan’s case (supra), the reproduction of the relevant
portion of which has been made hereinbefore, the petitioner therein
had extended threat to the life of the respondent and a Co-ordinate
Bench of this Court had noticed in para No.11 of the judgment that an
alleged empty threat, to implicate the respondent in false cases or to
get him removed from service, would not constitute the offence of
criminal intimidation punishable under Section 506 IPC. It was further
observed that the allegations in the complaint therein would not make
out a case of criminal intimidation and accordingly, the proceedings
were quashed. Another Co-ordinate Bench of this Court in case titled
as “Makam H.A. Vs. State of Haryana and another, 2013(11) R.C.R.
(Criminal) 370, has held as under: -
5. Counsel for the petitioner had made reference to
the Section 384 I.P.C. to urge that it would not at all be
attracted. Counsel would also contend that even if it is
accepted that some threatening call is made to the
complainant, it would not reveal an offence as such threat
was not advanced in the immediate presence of the
complainant or on face to face basis.
As per the allegation, the petitioner had threatened
the complainant that he had links with LTTE and will get his
house blasted by putting RDX. He is alleged to have used
some filthy abuses, which of course are not mentioned in the
complaint or the FIR. He has made Anirudh Aggarwal as his
witness as the other call was received in his presence.
8. Whether a call given on telephone from such a
remote place with potential threat would attract Section 506
I.P.C. is a question and out of blew the police has added
offence under Section 384 I.P.C. making the case of extortion
against the petitioner, which is without any justification.
xxx xxx xxx xxx xxx xxx
10. Section 384 I.P.C. provides punishment for
extortion. The extortion is defined in Section 383 I.P.C. as
" Whosoever intentionally puts any person in fear of
any injury to that person, or to any other, and thereby
dishonestly induces the person so put in fear to deliver to any
person any property or valuable security, or anything signed
or sealed which may be converted into a valuable security,
commits extortion".
Accordingly, no offence under Section 384 I.P.C.
would be made out against the petitioner, from the perusal
and even reading of FIR in a best possible manner, I
wonder how the trial Court has framed the charge under
Section 384 I.P.C. To an extent, it would reflect non-
application of mind.
12. The other offence alleged against the petitioner
is under Sections 504 and 506 I.P.C. Section 504 I.P.C.
punishes an intentional insult with intent to provoke breach of
the peace. As per the State counsel, Section 504 I.P.C. would
be attracted to the facts of the case as the petitioner had used
abusive language on telephone call that he gave to the
respondent. The Section, however, apparently is providing for
some different situation. This Section provides that,
whosoever intentionally insults, and thereby gives
provocation to any person, intending or knowing it to be
likely that such provocation will cause him to breach of the
public peace, would be guilty of offence under this Section. It
is not even alleged that the word, which was used by the
petitioner, was with intention to provoke the complainant to
indulge in breach of peace. In my view, the offence under
Section 504 I.P.C. would also not be attracted as per the
allegations made in the FIR.
13. So far as the charge of criminal intimidation is
concerned, this also, apparently, is too remote. The person
giving telephone call from Mumbai would hardly be in any
position to advance any effective threat at such a far off
place. Apparently, there was business transaction between the
petitioner and complainant and mere receipt of call would not
mean that use of words as alleged in the FIR stands proved.
In this regard, except for the evidence of the complainant,
nothing else would be there to support the allegation. The
submission that the conversation was in the presence of other
witness would again be not worthy of reliance as telephonic
call between two persons can hardly be heard by any person
even if he is present in vicinity. In my view, the allegations
against the petitioner have been stretched. No offence against
the petitioner for the offences alleged is made out.
xxx xxx xxx xxx xxx xxx
15. The present petition is, accordingly, allowed. FIR
No. 1099 dated 21.10.2009 registered under Sections 384,
504 and 506 I.P.C. at Police Station City Panipat and all
subsequent proceedings arising therefrom are hereby
quashed.”
A perusal of the above judgment would show that in the
said case the FIR had been registered under Sections 384, 504 and 506
IPC. As per the allegations in the FIR therein, the petitioner/accused
therein had threatened the complainant therein by stating that he had
links with LTTE and would get his house blasted by putting RDX and
also used filthy language against him. It was further alleged that the
telephonic call, which was made was in the presence of one witness. It
was observed by the Co-ordinate Bench, that a call given on telephone
from a remote place, would not give rise to the offence under Section
506 IPC as the person giving a telephonic call, is hardly in a position
to advance any effective threat. Even with respect to the offence
under Section 384 IPC, it was observed that the said offence was not
made out.
In the present case, there is no overt act alleged in the
FIR and it has only been vaguely stated that the petitioner is
threatening to implicate respondent No.2 in a false rape case and thus,
as per the law laid by the above-said judgments and also, as per the
settled principles of law, the provision of Section 506 IPC would not
be attracted even in case, the allegations levelled in the FIR are taken
on its face value. Even with respect to the offence of extortion/attempt
to extort, it is apparent that the allegations are far-fetched and with
respect to the second incident, no alleged false case has been
registered even till date and thus, the question of seeking money is too
far-fetched. In case on the basis of such allegations, an FIR is
registered, then, it would be very easy for any person to implicate
another person by merely making vague allegations, moreso, when
there is previous enmity between the parties. Thus, as per the opinion
of this Court, the present FIR registered under Sections 506, 384 and
511 IPC has no legs to stand on. It would be relevant to mention that
while deciding the present case and holding that the present FIR
deserves to be quashed, the entire material, which was required for the
adjudication of the present case, was before this Court and it could not
be said that the facts were incomplete so as to await the report under
Accordingly, the present petition is allowed and the FIR
No.236 dated 15.09.2021 (Annexure P-1), under Sections 384, 511
and 506 IPC, registered at Police Station Lehra, District Sangrur as
well as subsequent proceedings emanating therefrom, are quashed qua
the petitioner.
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The Punjab and Haryana High Court has held that if a second FIR is registered regarding an incident on which a prior FIR already exists, it amounts to abuse of process of law and the High Court is well within its powers under Section 482 CrPC to quash the same, without awaiting a final report under Section 173 CrPC. Justice Vikas Bahl observed,"exercise of power under Section 482...
The Punjab and Haryana High Court has held that if a second FIR is registered regarding an incident on which a prior FIR already exists, it amounts to abuse of process of law and the High Court is well within its powers under Section 482 CrPC to quash the same, without awaiting a final report under Section 173 CrPC.
Justice Vikas Bahl observed,
"exercise of power under Section 482 CrPC for quashing of an FIR has not been absolutely excluded where a report under Section 173 CrPC is not filed. The said power is to be exercised sparingly and no straitjacket formula can be laid down as to in which situations and when the said power can be or should be exercised."
The Court illustrated thus some of the situations in which, depending upon the facts and circumstances of the case, the said power may be exercised in spite of the report under Section 173 CrPC having not been filed:
If a second FIR has been filed for an incident regarding which one FIR already existsIf on a bare reading of the FIR, the commission of an offence is not made outIF the FIR has been registered for a non-cognizable offenceIf the FIR has been registered for offences not exceeding three years, after the period of limitationIf an FIR has been registered in violation of a judicial orderIf an FIR has been registered in violation of a statute or a legal principle settled by a judicial pronouncement
It however clarified, that the above said instances are only enumerative and not exhaustive.
It added,
"whether a case for quashing is made out or not, even in a case where the abovesaid issues arise would depend upon the facts and circumstances of the said case and it cannot be stated in absolute terms that in all cases where the above said issues arise that the FIR has to be quashed."
Background
The petitioner had sought to quash an FIR containing charges under S.384 (Punishment for extortion), S.511(Punishment for attempting to commit offences punishable with imprisonment for life or another imprisonment) and S.506 (Punishment for Criminal Intimidation), filed by the respondent no.2/complainant.
This FIR was filed by respondent no.2 in August 2021 stating that the petitioner had enmity with the complainant's father since 2008 and he had registered a false rape case against the complainant in the year 2019 and had blackmailed him for INR 14 Lakh to take revenge and in this rape case FIR, the SHO and Superintendent of Police had declared respondent no.2 innocent.
Then in 2020, one Gurjit Singh went to respondent no. 2 regarding one girl 'R' who was apparently blackmailing Gurjit Singh for money and thus, respondent no.2, being an advocate, advised Gurjit Singh to register a case against 'R' under S.384 IPC.
The petitioner then bailed 'R' and provoked her to file a false rape case against respondent no.2 but 'R' refused to do so and only filed a case against Gurjit Singh which was subsequently cancelled because Gurjit Singh was found innocent.
Then the petitioner in connivance with others again threatened respondent no.2 with a false rape case if INR 14 Lakh was not paid to the petitioner and in this background, respondent no. 2 had to file an FIR under S.384, 511 and 506, which the petitioner sought to quash.
Arguments by Counsel for Petitioner
Advocate Preetinder Singh Ahluwalia, counsel for the petitioner submitted that this registration of the FIR in question (filed by respondent no. 2) was a complete abuse of the process of the court. He submitted that regarding the 2019 FIR, respondent no.2 was made an accused in addition to two other people.
Following this, respondent no. 2 had filed an application in August 2020 in the court of Judicial Magistrate 1st class against 'R', the present petitioner and three other people, praying to register a case under S.211 (False charge of offence made with intent to injure), 193 (Punishment for false evidence), 389 (Putting person in fear of accusation of offence, in order to commit extortion) and 120B IPC.
The Judicial Magistrate 1st class was of the opinion that the facts disclosed in the application did not warrant registration of an FIR and thus, treated this application under S.156(3) as a criminal complaint and adjourned the same for pre-summoning evidence. 'S' then appeared in the witness box and made specific allegations against respondent no. 2 and respondent no.2 was summoned by the court under S.319 (Power to proceed against other persons appearing to be guilty of offence) of CrPC, via an order in December 2021.
Since the respondent no.2 had not disclosed any of this information in the FIR in question, actively concealed facts regarding the criminal complaint already filed and his court summoning and got the present FIR registered without challenging the order passed by Judicial Magistrate 1st class, this was an abuse of process of Court, argued the learned counsel for the petitioner.
Arguments by Counsel for the respondent
Per Contra, leaned counsel for complainant stated that the petition under S.482 CrPC should be dismissed for lack of report under S.173, CrPC. He further submitted a telephonic conversation between one Kulwant Singh who is the uncle of 'S', the petitioner and the complainant regarding a demand of INR 14 lakhs.
Findings
The Court had to decide on two important questions of law: whether a petition under S.482 can be dismissed for lack of report of under S.173 under CrPC? And Secondly, whether filing of another FIR while an FIR on the same incident exists, amounts to abuse of process of law and should be quashed?
The court referred to the apex court's judgment in Ajay Mitra v. State of MP & Ors. where it was held that "if an FIR does not disclose the essential requirements of the penal provision or does not disclose the commission of a cognizable offence, the same can be quashed at the initial stage." And to the Supreme Court judgment in State of Haryana and Others v. Ch. Bhajan Lal & Ors. where the court held that "the High Court can exercise its extraordinary power under A.226 of the Constitution or the inherent power under S.482 CrPC, 1973 to prevent abuse of the process of any court or to secure ends of justice."
Thus, after averring all facts, judgments and provisions, the Court concluded that since respondent no. 2 did not show any reference regarding the complaint under S.156(3) which had been made before the Court of Judicial Magistrate 1st class, in the FIR in question and he had registered the second FIR in violation of the order given by the Court of Judicial Magistrate 1st Class who had clearly stated that allegations in the complaint did not warrant registration of an FIR and the respondent no. 2 had not brought to the court's notice that charges had been framed against him as per S.319, CrPC, these acts of respondent no. 2 amounted to forum shopping and the registration of the FIR in question was thus, held illegal.
Court also stated that provisions of S.506 would not be attracted, the offence under S.384 was not made out and the question of seeking money was too far-fetched. The Court further observed that "respondent no.2 has been filing one application after the other to influence the prosecutrix 'R' in the case and to pressurize her not to give statement against respondent no.2" showing abuse of process of the court and indulgence in forum shopping.
Thus, the Court quashed the present FIR citing that it was registered with mala-fide intent, solely to take vengeance on the petitioner.
Case Title: Gurmail Singh v. State of Punjab and anotherCase citation: (P&H) 8
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Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Manoj Kumar Srivastava,Ajai Kumar
Counsel for Opposite Party :- G.A.
1. Heard Sri Ajai Kumar, learned counsel for applicant and Sri
K.P. Pathak, learned A.G.A. for State.
2. Applicant-Sunil, has approached this Court by way of filing
the present Criminal Misc. Bail Application under Section 439
Cr.P.C. after rejection of his Bail Application vide order dated
15.06.2021, passed by Special Judge (POCSO Act)/ Additional
Sessions Judge, Kannauj, in Case Crime No.194 of 2021, under
Section 376 I.P.C. and 5/6 POCSO Act, Police Station Kannauj,
3. The applicant is seeking bail for allegedly committing an
offence which is shocking and inhuman. It is alleged that
applicant, a Carpenter, committed offence of rape with the
victim, a minor girl of three years old. The medical examination
of the victim shows that her hymn was torn and there were
swelling over labia majora and tenderness present over
genitalia. Victim in her statement recorded under Section 164
Cr.P.C. has communicated by words and also by action that
applicant has raped her and blood was oozing out from her
private parts. The applicant was apprehended from the spot and
a named FIR was lodged against him.
4. Learned counsel for the applicant submits that applicant is a
62 years old person. There was a delay of about five days in
lodging the FIR. He was falsely implicated in the present case.
He was doing some job of Carpentry in the house of father of
victim, however there was dispute on payment of wages. The
applicant has no prior criminal antecedents and he is in jail
5. Learned A.G.A. appearing for State has opposed the bail and
drawn attention of this Court on the contents of FIR as well as
the statement of victim recorded under Section 164 Cr.P.C.
wherein she completely corroborated the prosecution case.
6(A) Law on bail is well settled that 'Bail is rule and Jail is
exception'. Bail should not be granted or rejected in a
mechanical manner as it concerns liberty of a person. At the
time of considering an application for bail, the Court must take
into account certain factors such as existence of a prima facie
case against the accused, gravity of the allegations, severity of
punishment, position and status of the accused, likelihood of the
accused fleeing from justice and repeating the offence,
reasonable apprehension of tampering with the witnesses and
obstructing the Courts as well as criminal antecedents of the
(B) It is also well settled that the Court while considering an
application for bail must not go into deep merits of the matter
such as question of credibility and reliability of prosecution
witnesses which can only be tested during the trial. Even
ground of parity is one of the above mentioned aspects which
are essentially required to be considered. It is also well settled
that the grant or refusal of bail is entirely within the discretion
of the judge hearing the matter and though that discretion is
unfettered, it must be exercised judiciously and in a humane
manner, compassionately and not in whimsical manner.
(C) The Court should record the reasons which have weighed
with the count for the exercise of its discretionary power for an
order granting or rejecting bail. Conditions for the grant of bail
ought not to be so strict as to be incapable of compliance,
thereby making the grant of bail illusory.
7. In the background of above facts and legal position of the
present case, it is prima facie evident that the applicant has
committed an inhuman act of rape on a minor girl of three
years. The victim has narrated her ordeal in words as well as in
signs and explained the entire incident of rape committed by the
applicant. Medical report shows that victim's hymen was torn
and there was swelling on her private parts. The applicant, who
has prima facie, committed a heinous crime of rape on a three
years old minor girl, is not entitled for bail.
8. The application is accordingly rejected.
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The Allahabad High Court recently denied bail to a 62-year-old person accused of raping a 3-year-old girl as it noted that prima facie it was evident that the accused had committed an inhuman act of rape on a 3-year-old minor girl.The Bench of Justice Saurabh Shyam Shamshery also noted that the 3-year-old victim girl had narrated her ordeal in words as well as in signs and had explained...
The Allahabad High Court recently denied bail to a 62-year-old person accused of raping a 3-year-old girl as it noted that prima facie it was evident that the accused had committed an inhuman act of rape on a 3-year-old minor girl.
The Bench of Justice Saurabh Shyam Shamshery also noted that the 3-year-old victim girl had narrated her ordeal in words as well as in signs and had explained the entire incident of rape, allegedly committed by the accused.
"...it is prima facie evident that the applicant has committed an inhuman act of rape on a minor girl of three years. The victim has narrated her ordeal in words as well as in signs and explained the entire incident of rape committed by the applicant. The medical report shows that victim's hymen was torn and there was swelling on her private parts. The applicant, who has prima facie, committed a heinous crime of rape on a three years old minor girl, is not entitled for bail," the Court remarked.
Essentially, the accused, booked under Section 376 I.P.C. and 5/6 POCSO Act, had moved to the High Court after the rejection of his Bail Application in June 2021 by the Special Judge (POCSO Act)/ Additional Sessions Judge.
Hearing his plea, the Court noted that the allegations against him are that he committed offence of rape with the 3-year-old victim girl. The Court also observed that in her statement recorded u/s 164 CrPC, the victim had communicated by words and also by action that the applicant had raped her and blood was oozing out from her private parts.
Though the applicant argued that there was a delay of about five days in lodging the FIR and that he was falsely implicated in the present case as he was doing some job of Carpentry in the house of the father of the victim, and there was a dispute on payment of wages, however, the Court did not consider it fit to enlarge him on bail.
Case title - Sunil v. State of U.P. and Another CRIMINAL MISC. BAIL APPLICATION No. - 29765 of 2021
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ivil Appeal No. 2792 of 1988 Etc.
From the Judgment and Order dated 27.7.1988 of the Bombay High Court in W.P. No. 3264 of 1988.
G. Ramaswamy, Additional Solicitor General, T.R. Andya rujuna, V.V. Vaze, V.M. Tarkude, D.N. Misra, M.D. Siodia, Pinaki Misra, P.H. Parekh, Ms. Sunita Sharma, A.M. Khanwil kar, A.S. Bhasme, Dalveer Bhandari, Vijay Thorat, Raian Karanjawala, Mrs. Manik Karanjawala, Ms. Meenakshi Arora, V.D. Khanna, Rameshwar Nath, B.R. Agarwal, P.K. Pillai, P.N. Gupta, Shri Narain, Madhuri Gokhale, Prangalia and N. Nettar for the appearing parties.
The Judgment of the Court was delivered by DUTT, J.
The principal point involved in these appeals relates to the constitutional validity of rule 4(A) of the Rules flamed by the Bombay Municipal Corporation for admis sion to post graduate degree and diploma courses in its medical colleges framed on June 18, 1988 and rule 5 framed under the Government Resolution dated June 18, 1971 for admission to the Government Medical College, both the rules providing for collegewise institutional preference for admission in the M.D. Course.
By the impugned judgment, the High Court allowed the writ petitions out of which these appeals arise, and struck down the impugned rule 4(A) in whole and rule 5 (wrongly stated as rule 6 in the High Court judgment), in so far as it applies to the Government Medical College in the city of Bombay, as discriminatory and viola tive of Article 14 of the Constitution and, accordingly, invalid.
Rule 4(A) is as follows: "4.
PREFERENCE: (A) While selecting candidates for admission to the postgraduate courses preference will be given in the following order: 922 (a) Candidates applying for admission at the parent institution.
(Note: Parent institution means the medical college at which the candidate has passed his qualifying examination).
(b) Candidates who have graduated from other Municipal Medical Colleges in Brihan Mumbai.
" Relevant portion of rule 5 framed under the Government Resolution dated June 18, 1971 reads as follows: " 5. . . . . . . . . . .
While selecting from amongst eligi ble candidates preference will be given to the students of that college i.e. who passed their final M.B.B.S. Examination from that college in Broad specialities and their ancillary discipline.
" There are four medical colleges in the city of Bombay, and affiliated to the University of Bombay.
Of these four medical colleges, three are run and conducted by the Bombay Municipal Corporation, namely, Lokmanya Tilak Memorial Medical College (LTMMC), Seth G.S. Medical College (GSMC) and Topiwalla National Medical College (TNMC).
The only college that is being run by the Maharashtra Government in the city of Bombay is Grant Medical College (GMC).
It is not necessary to state in details the facts leading to the filing of the writ petitions before the High Court out of which these appeals arise.
Suffice it to say that some candidates who were not admitted in the M.D. Course in the respective colleges from which they had passed their MBBS Examination, were not also admitted in the other medical colleges in the city of Bombay, in view of collegewise institutional preference as provided by rule 4(A) in respect of three Municipal Colleges and by rule 5 relating to GMC, the Maharashtra Government College.
The High Court, as stated already, struck down rule 4(A) and rule 5 in part and allowed the writ petitions.
Hence these appeals by special leave.
It is Urged by Mr. G. Ramaswamy, the learned Additional Solicitor General, that this Court in Dr. Pradeep Jain vs Union of India & Ors., ; has given sufficient indication of its approval 923 of collegewise institutional preference.
While the learned Additional Solicitor General frankly concedes that he is not in a position to support cent percent institutional prefer ence or reservation of seats for admission in the M.D. Course in the Municipal Colleges and the Government College in the city of Bombay, such preference or reservation in respect of certain percentage of seats is quite permissible and will not be hit by the provision of Article 14 of the Constitution.
In Pradeep Jain 's case, the question that has been considered by this Court as noted by Bhagwati, J. (as he then was) is whether, consistently with the constitutional values, admissions to a medical college or any other insti tution of higher learning situate in a State can be confined to those who have their domicile within the State or who are resident within the State for a specified number of years or can any reservation in admissions be made for them so as to give them precedence over those who do not possess domicile or residential qualification within the State, irrespective of merit.
The question that has been formulated and consid ered does not show, on the face of it, that collegewise institutional preference was also involved as a part of the question.
It has been ruled in Pradeep Jain 's case that effort must always be to select the best and most meritori ous students for admission to technical institutions and medical colleges by providing equal opportunity to all citizens in the country, and that it would be against na tional interest to admit in medical colleges or other insti tutions giving instruction in specialities, less meritorious students when more meritorious students are available.
So, wholesale reservation on the basis of domicile or residen tial requirement within the State or on the basis of insti tutional preference for students who have passed the quali fying examination held by the University or the State ex cluding all students not satisfying this requirement, re gardless of merit, has been condemned.
The Court took the view that reservation of seats based on residential require ment within the State or on institutional preference should, in no event, exceed the outer limit of 70 per cent of the total number of open seats after taking into account other kinds of reservation validly made, the 70 per cent reserva tions needs to be reduced if the Indian Medical Council determines a shorter outer limit.
The institutional preference that has been referred to in the observation of Bhagwati, J. does not at all relate to collegewise institutional preference, with which we are concerned.
The learned Additional Solicitor General has, however, placed strong reliance on the following observation made by Bhagwati, J. in Pradeep Jain 's case which is ex tracted below: 924 "We are therefore of the view that so far as admissions to post graduate courses, such as M.S., M.D. and the like are concerned, it would be eminently desirable not to provide for any reservation based on residence re quirement within the State or on institutional preference.
But, having regard to broader considerations of equality of opportunity and institutional continuity in education which has its own importance and value, we would direct that though residence requirement within the State shall not be a ground for reservation in admissions to post graduate courses, a certain percentage of seats may in the present circumstances, be reserved on the basis of institutional preference in the sense that a student who has passed M.B.B .S. course from a medical college or university may be given preference for admission to the post graduate course in the same medical colleges or university but such reservation on the basis of institutional preference should not in any event exceed 50 per cent of the total number of open seats available for admission to the post graduate course.
This outer limit which we are fixing will also be subject to revision on the lower side by the Indian Medical Council in the same manner as directed by us in the case of admissions to the M.B.B.S. course.
But, even in regard to admis sions to the post graduate course, we would direct that so far as super specialities such as neuro surgery and cardiology are concerned, there should be no reservation at all even on the basis of institutional preference and admissions should be granted purely on merit on all India basis.
" It is urged by the learned Additional Solicitor General that in Pradeep Jain 's case collegewise institutional pref erence has been recognised and upheld, as is apparent from ,the above observation, particularly from the observation "a certain percentage of seats may, in the present circum stances, be reserved on the basis of institutional prefer ence in the sense that a student who has passed MBBS Course from a medical college or University may be given preference for admission to the post graduate course in the same medi cal colleges or university, but such reservation on the basis of institutional preference should not in any event exceed 50 per cent of the total number of open seats avail able for admission to the post graduate course.
" It is true the expression "institutional preference" has been used in the said observation in respect of a medical college or a university, but we do not think that in making that observa tion Bhagwati, J. had in his mind 925 collegewise institutional preference.
Any observation in a judgment has to be read and understood in the context of facts of that particular case in respect of which such observation has been made.
As has been pointed out, the question that has been considered in Pradeep Jain 's case relates to reservation of seats in medical colleges on the ground of domicile or residential qualification within the State irrespective of merit.
It was not the case of anybody that reservation of seats.
should be made on the ground of collegewise institutional preference.
The institutional preference that was considered in the case was university wise institutional preference and not collegewise institu tional preference.
It is also apparent from the judgment of Amarendra Nath Sen, J., who delivered a separate but concur ring judgment, that the Court had no occasion to consider the question of collegewise institutional preference in matters of admission to M.D. Course.
In the circumstances, we are unable to accept the contention of the learned Addi tional Solicitor General that this Court in Pradeep 's Jain 's case has upheld or recognised collegewise institutional preference of seats in medical colleges for admission in M.D. Course.
The position is clarified in a subsequent decision of this Court in Nidamarti Mahesh Kumar vs State of Maharashtra and others; , which related to the constitu tional validity of regionwise reservation of seats in medi cal colleges.
It has been observed by Bhagwati, C.J. that where the region from which the students of a university are largely drawn is backward either from the point of view of opportunities for medical education or availability of competent and adequate medical services, it will be consti tutionally permissible, without violating the mandate of the equality clause to provide a high percentage of reservation or preference for students coming from that region because without reservation or preference students from such back ward region will hardly be able to compete with those from advanced regions, since they would not have adequate oppor tunity for development so as to be in a position to compete with others.
Further, it has been observed that it would not be unconstitutional for the State to provide for reservation or preference in respect of a certain percentage of seats in the medical college or colleges in each region in favour of those who have studied in schools or colleges within that region and even if the percentage stipulated by the State Government is on the higher side, it would not fall foul of the constitutional mandate of equality.
In respect of such reservation of preference the reasons that have been given are that it would cause considerable hardship and incon 926 venience if students residing in the region of a particular university are compelled to move to the region of another university for medical education which they might have to do if selection for admission to the medical colleges in the entire State were to be based on merit without any reserva tion or preference regionwise.
There may be a large number of students who, if they do not get admission in the medical college near their residence and are assigned admission in a college in another region on the basis of relative merit, may not be able to go to such other medical college on account of lack of resources and facilities and in the result, they would be effectively deprived of real opportu nity for pursuing the medical course even though on paper they would have got admission in the medical college.
Fur ther, it has been pointed out that some difficulty would arise in case of girls because if they are not able to get admission in the medical college near the place where they reside they might find it difficult to pursue medical educa tion in a medical college situated in another region where hostel facilities may not be available and even if hostel facilities are available, the parents may hesitate to send them to the hotels.
Even with regard to regionwise reservation of certain percentage of seats in medical colleges, except for the reasons mentioned above, this Court in Nidamarti 's case has turned down the contention that the provision of the im pugned rule, that is, students from a school or college situate within the jurisdiction of a particular university would not be eligible for admission to medical college or colleges situate in the jurisdiction of another university, but would be confined only to medical college or ,colleges within the jurisdiction of the same university, was intended to give protection to students in certain rural areaS, the population of which is socially, economically and education ally backward, for otherwise they would have not been able to compete with students from advanced regions and, conse quently, the classification made by the provision was con stitutionally permissible.
Thus, except in certain circum stances, even regionwise reservation of seats in medical colleges has not been approved by this Court.
In Pradeep Jain 's case, merely because the expression "institutional preference" has been used with reference to a student pass ing the MBBS Course from a medical college or a university, it does not necessarily follow that the Court had in its contemplation or was laying down collegewise institutional preference.
In support of the contention that collegewise institu tional preference or reservation of seats was in the contem plation of this Court, reliance has been placed on behalf of the appellants on an earlier 927 decision of this court in Jagdish Saran & Ors.
vs Union of India & Ors.
, ; In that case, of the three learned Judges, Krishna Iyer, J. delivered the judgment for himself and for Chinnappa Reddy, J. Pathak, J. (as he then was) agreed with the judgment of Krishna Iyer, J. that the writ petition should be dismissed, but he gave his own reasons.
The reasons of Pathak, J. are, inter alia, con tained in the following observations: "It is not beyond reason that a student who enters a medical college for his graduate studies and pursues them for the requisite period of years should prefer on graduation to continue in the same institution for his post graduate studies.
There is the strong argument of convenience, of stability and familiarity with an educational environment which in different parts of the country is subject to varying economic and psychological pressures.
But much more than convenience is involved.
There are all the advantages of a continuing frame of educational experience in the same educational institution.
It must be remembered that it is not an entirely differ ent course of studies which is contemplated; it is a specialised and deeper experience in what has gone before.
The student has become familiar with the teaching techniques and standards of scholarship, and has adjusted his responses and reactions accordingly.
The continuity of studies ensures a higher degree of competence in the assimilation of knowledge and experience.
Not infrequently some of the same staff of Professors and Readers may lecture to the post graduate classes also.
Over the under graduate years the teacher has come to understand the particular needs of the student, where he excels and where he needs an especial encouragement in the removal of deficiencies.
In my judgment, there is good reason in an educational institution extending a certain degree of preference to its graduate for admission to its post graduate classes.
The preference is based on a reasonable clas sification and bears a just relationship to the object of the education provided in the post graduate classes.
The concept of equality codified in our constitutional system is not violated.
It has been said sometimes that classification contradicts equality.
To my mind, classification is a feature of the very core of equality.
It is a vital concept in ensuring equality, for those who are similarly situated alone from a class between them selves, and the classification is not 928 vulnerable to challenge if its constituent basis is reasonably related to achieving the object of the concerned law.
An institutional preference of the kind considered here does not offend the constitutional guarantee of equality.
" The above observations or reasons should not be read or understood dehors the facts and the questions involved for the determination of this Court.
The facts of that case will be stated presently.
The University of Delhi has many post graduate and diploma courses in the faculty of medicine providing in all 250 seats.
The three medical colleges in Delhi turn out annually 400 medical graduates who get house jobs in the local hospitals and qualify themselves for postgraduate course.
As the graduates from the Delhi Univer sity could not be accommodated fully or even in part for the post graduate course in Medicine and as these graduates were not considered for admission into other universities, Delhi University had earmarked some seats at the post graduate level in Medicine for the medical graduates of Delhi Univer sity.
By the impugened rule, 70 per cent of the seats at the post graduate level was reserved for Delhi graduates and 30 per cent of the seats was kept open to all including gradu ates of Delhi.
It was, therefore, not a case of collegewise reservation, but 70 per cent reservation of seats in the medical colleges under the Delhi University for the medical graduates of that University.
The question of collegewise institutional preference or reservation of seats did not at all arise, nor was it argued or sought to be decided in Jagdish Saran 's case.
It is true that the observation of Pathak, J., without reference to the context of the facts and the question involved in that case, may support to some extent the contention of the appellants, but the contention has to be rejected on a reference to the facts and the question involved in that case.
It is, however, submitted by the learned Additional Solicitor General that there are some special facts and circumstances which justify collegewise reservation as provided by the impugned rules 4(A) and 5.
It is stated by him that while the theoretical examinations in MBBS Course are conducted by the University, the practical examinations involving 50 per cent of the total marks are held by the individual colleges.
Counsel submits that in such circum stances the merits of the candidates passing the MBBS Exami nation from these four colleges are difficult to be compared and evaluated for the purpose of admission in the M.D. Course.
This submission has also been made by Mr. Baze, learned Counsel appearing on behalf of the University of Bombay.
929 We regret, we are unable to accept such a contention.
It is not disputed that in each college the practical examina tions are conducted by a set of four examiners consisting of one internal examiner from the same college, one external examiner from one of the other three colleges and two exter nal examiners from outside Bombay.
Thus, excepting one internal examiner, three other examiners are external exam iners and all those examiners are presumably appointed by the University.
These examiners are of high academic quali fications and we fail to understand why they would deviate from the standard prescribed by the University for the assessment and evaluation of the merits of the students in the practical examinations.
There is, therefore, no sub stance in the contention that the standard of examination and evaluation of the merits of students in such practical examinations differ from college to college.
Indeed, no material has been placed before us in support of the conten tion that different standards are adopted by the colleges in MBBS practical examinations.
Equally untenable is the con tention that because of institutional preference, the dif ferent marks given by different colleges do not affect the students, as it is the relative merit of the student in the same college which matters in the selection of post graduate students.
We do not find any justification for the apprehen sion that if the institutional preference is removed and all the candidates from the University are pooled together, a process of dilution and undesirable racing are likely to start making a mockery of the examination system and creat ing mad race of overtaking the other colleges.
This appre hension has been expressed by the Dean of Lokmanya Tilak Memorial Medical College in his.
affidavit filed before the High Court.
Another ground in justification of collegewise institu tional preference which has been relied on by the Dean in his affidavit and urged before us on behalf of the appel lants is that the facilities differ from college to college in respect of the pattern of patients coming to the hospital attached to each college.
By way of illustration, it is stated that in the hospital attached to Lokmanya Tilak Memorial Medical College there is maximum load of trauma cases (accidents and injuries), the number of such cases is much higher than that in the hospital attached to the three other colleges.
The under graduate students in Lokmanya Tilak Memorial Medical College will have a wider exposure to these cases and will be far more suitable for seat in the post graduate course in Surgery where he will have to actu ally deal with these cases than a student of any other college.
Even assuming that the facts stated above are correct, we do not think that the same constitute any ground in support of institutional preference.
It is the university which is required to maintain a standard in respect of the 930 subjects in the colleges affiliated to it.
It is not the case of the University that the standard prescribed by it is not maintained in different colleges or that any particular college is higher in standard in a particular subject than that in another college.
It may be that the number of acce dent and injury cases in the hospital attached to Lokmanya Tilak Memorial Medical College is higher than the number of such cases in the hospitals attached to other colleges, but that does not prove or lead to the conclusion that the students of other colleges will be deficient in surgery or less meritorious than the students of Lokmanya Tilak Memori al Medical College.
The contention in this regard is without substance and is rejected.
Let us now examine the question of collegewise institu tional preference from the point of view of Article 14 of the Constitution.
By the impugned rules, a classification has been sought to be made with the students of each partic ular college passing their MBBS Examination from that col lege to the exclusion of all other students obtaining their MBBS Degree from the other colleges.
In order that a classi fication is a permissible one within the meaning of Article 14 of the Constitution, two tests are to be satisfied, namely, (1) that there is an intelligible differentia which distinguishes persons grouped together from those who are left out of the group; and (2) that there is a rational nexus to the object sought to be achieved by the impugned rules.
The object sought to be achieved by the impugned rules is obviously to prefer merit for the post graduate course and to exclude less meritorious candidates.
It will be presently demonstrated that both the tests are not satis fied in the instant case.
In this connection, we give below following tabular statement showing the number of seats available in each of the said four colleges in some of the disciplines.
COLLEGE LTMMC TNMC GSMC GMS Students Intake 100 100 100 DISCIPLINE 1.
M.D. Obs. & Gyn. 2 1 5 3+ I(R) 2.
M.S. Orthopaedics 2 1 2 1 3.
M.S. General Surgery 4 2 3 3+ I(R) 4.
M.D. General Medicine 4 3 3 3+ I(R) 931 In Seth G.S. Medical College (GSMC), there are five seats in Obstetrics and Gynaecology and one seat in Topiwala Nationl Medical College (TNMC).
In view of the impugned rules providing collegewise institutional preference, five seats in Obstetrics and Gynaecology in Seth G.S. Medical College were allotted to five of its students.
Of these five students, Dr. Ganpat Sawant secured 150 marks and the four other candidates secured marks between 118 and 128 in the MBBS Examination.
The respondents Dr. Anjali Deokumar Thuk ral and Dr. Sumeet Godambe, both students of Topiwala Na tional Medical College obtained respectively 140 and 143 marks in the MBBS examination.
They, however, were not admitted in their college, for there was only one seat in Obstetrics and Gynaecology and that seat was alotted to a student of that college who secured 156 marks in the MBBS examination.
Thus, although Dr. Anjali Deokumar Thukral and Dr. Sumeet Godambe secured more marks than the students admitted in the post graduate course in Obstetrics and Gynaecolocy in the said G.S. Medical College, except the said Dr. Ganpat Sawant, they were refused admission in view of collegewise institutional preference.
Similarly, in respect of other disciplines many meritorious students could not get admission even though they secured higher marks than those admitted in the post graduate degree course by virtue of the impugned rules.
Thus, there is a patent discrimina tion inasmuch as students obtaining lesser marks have been preferred to those obtaining higher marks.
There is no intelligible differentia for the classification by way of collegewise institutional preference as provided by the impugned rules distinguishing the preferred candidates in respect of each college from those excluded from such clas sification.
By such classification or collegewise institu tional preference, merit has been sacrificed, far less it has been preferred.
When the university is the same for all these colleges, the syllabus, the standard of examination and even the examiners are the same, any preference to candidates to the post graduate degree course of the same university, except in order of merit, will exclude merit to a great extent affecting the standard of educational insti tutions.
In such circumstances, collegewise institutional preference cannot be supported and, it has already been noticed that this Court has not approved of such preference at all.
State of Rajasthan and another vs Dr. Ashok Kumar Gupta and others; , is a case of college based institutional preference in respect of five medical colleges in Rajasthan under the same University.
The impugned Ordi nance of the University provided for addition of 5 per cent of the aggregate of marks which work out to be 932 to 137.5 marks by way of institutional preference in the sense of preference dependant on the particular medical college at which the concerned candidate has passed his final MBBS Examination.
This collegewise institutional preference has been disapproved by this Court in that case and the impugned Ordinance has been struck down.
The learned Additional Solicitor General sought to distinguish Dr. Ashok Kumar Gupta 's case from the instant case.
We do not think that the said case is distinguishable from the case with which we are concerned, inasmuch as in both the cases the question of collegewise or college based institutional preference is involved.
It is stated that mode or method adopted for giving collegewise institutional preference in Dr. Ashok Kumar Gupta 's case is different from the instant case but, in our opinion, nothing turns out of that.
So far as educational institutions are concerned, unless there are strong reasons for exclusion of meritorious candidates, any preference other than in order of merit, will not stand the test of Article 14 of the Constitution.
So, the impugned rules are discriminatory and do not satisfy the tests of reasonable classification and, as much, cannot be sustained.
It is next contended on behalf of the appellants that as the Bombay Municipal Corporation has to spend a lot of money for the running of the three colleges sponsored by it, seats for the postgraduate course should be reserved in these three colleges for the students passing the MBBS Examination from any of these colleges.
If such reservation is allowed, the students of the Maharashtra Government College, namely, the Grant Medical College, will not get any admission in any of the three Municipal Colleges, even if the students or some of them passing the MBBS Course from the Government College are more meritorious than the students for whom the seats will be kept reserved in the Municipal Colleges.
It is urged that it will not be a case of collegewise institution al preference so far as the Municipal Colleges are concerned and there should be no objection for the Bombay Municipal Corporation to give preference to the students of the Munic ipal Colleges, of course, to the exclusion of the students of the Government College.
This contention, in our opinion, is without any substance.
It may be that the Bombay Munici pal Corporation has to spend a lot of money for the colleges run by it, but that will be no ground for making a discrimi nation between the students of the Municipal Colleges and those of the Government College affiliated to the same university, for the purpose of admission in the post gradu ate degree course.
Such discrimination will not serve any object which can be justified on any rational basis.
Such reservation or preference also cannot be allowed, for if allowed, rule 5 of the Rules framed under the 933 Government Resolution dated June 18, 197 1 will survive inasmuch as the students of the Grant Medical College will only be admitted in the M.D. Course.
But, those students who could not be admitted in that College, will not be eligible for admission in the Municipal Colleges.
We are unable to permit such discrimination in the matter of admission in the M.D. Course.
Another ground on which collegewise institutional preference has been sought to be justified by the learned Additional Solicitor General is on the basis of institutional continui ty.
In support of this ground of institutional continuity, the learned Additional Solicitor General has placed much reliance on the observations of Pathak, J. in Jagdish Sa ran 's case, which has already been extracted above.
It was not a case of collegewise institutional preference or insti tutional continuity, and the said observations should not be understood in that sense, but in the sense of institutional continuity in the same university.
After giving our thoughtful consideration to the question of collegewise institutional preference, we are of the view that such preference or reservation of seats is not permissible and the High Court has rightly struck down both the impugned rule 4(A) flamed by the Bombay Municipal Corpo ration and part of rule 5 flamed under the Government Reso lution, that is to say, only in respect of its application to the Grant Medical College in the city of Bombay relating to admission to post graduate M.D. Course.
We, however, make it clear that the students who have been admitted to post graduate M.D. Course pursuant to the impugned rules, their admission shall not be interfered with or disturbed.
At this state, we may consider the submission of Mr. Lalit, learned Counsel appearing on behalf of the applicants in C.M.P. No. 20748 of 1988 praying for their impleadment as party respondents to Civil Appeal No. 2792 of 1988.
We do not think that any useful purpose will be served by implead ing them as party respondents to the appeal.
The only prayer that has been made by Mr. Lalit is that the applicants who have passed the diploma course from the Municipal Colleges should be held to be eligible for admission in the M.D. Course with credit for the diploma course in any of the Municipal Colleges.
We are told by the learned Counsel appearing for the State Government and the Bombay Municipal Corporation that if the impugned rules are struck down, they will have to frame fresh rules consistent with the judgment of this Court and, as we have directed not 934 to disturb admission of the candidates in the post graduate M.D. Course pursuant to the impugned rules, we consider the prayer made by the applicants as quite reasonable and, accordingly, direct that the applicants who have passed the diploma course in the Municipal Colleges after passing the MBBS Examination, will be eligible for admission in the post graduate M.D. Course in any one of the Municipal Col leges with credit for the diploma course.
Mr. Tarkunde, learned Counsel appearing on behalf of the respondents writ petitioners, submits that the cases of admission of some of the respondents, who have not been admitted to the postgraduate degree course in certain spe cialities of their choice in view of the impugned rules, may be considered by the State of Maharashtra and the Municipal Corporation of Greater Bombay, in case seats are available, either in the Municipal Colleges or in the Grant Medical College, which is a Government College.
In our opinion, the prayer is quite reasonable and the State of Maharashtra and the Bombay Municipal Corporation are directed to consider the question of their admission, provided seats are avail able.
The names of the said respondents and the respective disciplines of their choice are given below: 1.
Dr. Anjali Deokumar Thukral M.D. Gynaecology and Obstetrics 2.
Dr. Atul Jaywant Galtonde M.S. Orthopaedics 3.
Dr. Naresh Kanayalal Navani M.S. General Surgery 4.
Dr. Anna Koshy Joseph M.D. General Medicine 5.
Dr. Vaishali Ramnik Doshi M.D. General Medicine Before we part with these cases, we may dispose of one submission made on behalf of the appellants.
Our attention has been drawn to the fact that while striking down the impugned rule 4(A) and impugned rule 5 in part, the High Court has directed the appellants to frame rules adopting certain alternative methods for dismission in the post graduate M.D. Course for the next year, as stated in the judgment.
The said directions appear to be in the nature of suggestions by the High Court, and the appellants will be free to frame rules for admission in the post graduate M.D. Course in the said four colleges in the city of Bombay in conformity with the provision of Article 14 of the Constitution and in the light of the judgment of this Court and in 935 framing the rules, the appellants may take into considera tion the suggestions of the High Court.
In the result, Subject to the directions given above, the appeals are dismissed.
There will, however, be no order as to costs.
SPECIAL LEAVE PETITION (CML) NO.
8883 OF 1988 WRIT PETITION (CIVIL) NO.
1253 OF 1988 For the reasons aforesaid, Special Leave Petition and Writ Petition fail and are dismissed without any order as to costs.
Y.L. Ap peals dismissed.
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There are four Medical Colleges in the City of Bombay, all affiliated to the University of Bombay.
Out of four, three colleges are run by the Municipal Corporation and one is run and conducted by the State of Maharashtra.
Rule 4A framed by the Municipal Corporation and Rule 5 framed by the State Govt.
vide Govt.
Resolution dated June 18, 1971 govern the admissions of students to post graduate degree and diploma course in the respective Medical Colleges.
Both the aforesaid Rules provide for collegeate institu tional preference for admission in the M.D. Course.
In other words, in each college, candidates who passed their M.B.B.S. exam from that college were to be preferred for purposes of admission to the Post Graduate M.D. degree, no matter wheth er the candidates had secured less marks than those who secured higher marks, having passed the M.B.B.S. Exam.
from other colleges.
On this basis some candidates who were not able to secure admission to the M.D. Course in the respec tive colleges from which they had passed their M.B.B.S. Examination were not also admitted in the other medical colleges in the City of Bombay, in view of college wise institutional preferences as provided by Rule 4A and Rule 5 referred to above.
Those students/candidates challenged the validity of the afore said Rule 4A and Rule 5 framed by the Municipal Corpn.
and the State Govt.
in the High Court, as being violative of article 14 of the Constitution.
The High Court allowed the Writ Petition and struck 920 down the impugned Rule 4A in whole and Rule 5 in so far as it applies to the Govt.
Medical College, as discriminatory and violative of article 14 of the Constitution and thus in valid.
Hence these appeals by Special Leave.
Dismissing the appeals with some directions, the Court, HELD: When the University is the same for all these colleges, the syllabus, the standard of examination and even the examiners are the same, any preference to candidates to the post graduate degree course of the same University except in order of merit, will exclude merit to a great extent affecting the standard of educational institutions.
In such circumstances, college wise institutional prefer ence cannot be supported and, this Court has not approved of such preference at all.
[931F G] So far as educational institutions are concerned unless there are strong reasons for exclusion of meritorious candi dates, any preference other than in order of merit, will not stand the test of article 14 of the Constitution.
[932C D] The Rules are discriminatory and do not satisfy the test of reasonable classification and as such, cannot be sus tained.
The Court accordingly dismissed the appeals and directed that the students who have been admitted to post graduate M.D. Course pursuant to the impugned Rules, their admission shall not be interfered with or disturbed.
[933E] The High Court has directed to the appellants to frame rules adopting certain alternative methods for admission in the Post graduate M.D. Course for the next year.
The said directions appear to be in the nature of suggestions by the High Court and the appellants will be free to frame the rules for admission in the Post graduate M.D. Course in the said four colleges in the City of Bombay in conformity with the provision of article 14 of the Constitution and in the light of the Judgment of this Court and in framing the Rules, the appellants may take into consideration the sug gestions of the High Court.
[934G H; 935A] Dr Pradeep Jain vs Union of India & Ors., ; , distinguished.
Nidamarti Mahesh Kumar vs State of Maharashtra & Ors.
, ; , not applicable.
921 Jagdish Saran & Ors.
vs Union of India & Ors.
, ; , not applicable.
State of Rajasthan & Anr.
vs Dr. Ashok Kumar Gupta & Ors., ; , not applicable.
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1) Petitioners have filed the instant writ petition seeking a
direction upon respondents to ensure safety of their life and
honour. A further direction asking the official respondents to
proceed against the private respondents in accordance with law has
also been sought.
2) The case of the petitioners, in brief, is that the petitioner No.1
has entered into wedlock with petitioner No.2 out of her free will
and volition against the wishes of her father i.e., respondent No.7.
According to petitioner, respondent No.7, father of the petitioner
No.1, is a person of ill repute who has entered into wedlock four
times and has divorced the mother of petitioner No.1. It is further
averred that the respondent No.7 wanted to give petitioner No.1 in
marriage to an illiterate truck driver and the same was resisted by
petitioner No.1 who is stated to have lodged a complaint with
Women’s Commission in this regard. The petitioners are stated to
have approached this Court by way of several writ petitions
including OWP No.1064/2017 and OWP No.546/2016, which are
pending before this Court. It is alleged that private respondents i.e.,
respondents No.6 to 9, invaded the house of the petitioners and
raised a hue and cry over there and in case petitioners are not
protected from the said respondents, they apprehend that they will
be killed.
3) The petition has been resisted by respondents No.7 to 9 by
filing a reply thereto. In their reply, it has been averred that the
petitioner No.1 has managed to enter into a wedlock with petitioner
No.2 by suppressing the fact that there is already a restraint order
passed by learned Sub Judge, Sopore, whereby she has been
restrained from contracting marriage. According to the said
respondents, as per Shariat, consent of father his very important
for marriage of daughter and without the consent of father,
marriage is incomplete. It is further averred that as father, it is
responsibility of respondent No.7 to watch welfare of his daughter.
4) I have heard learned counsel for parties and perused the
material on record.
5) It is not in dispute that the petitioners No.1 and 2 are major
and it is also not in dispute that they have entered into a wedlock
out of their own will and volition. The question whether learned
Sub Judge, Sopore, was justified in passing an order of restraint on
marriage of petitioner No.1 is left to be decided in appropriate
proceedings. However, one thing is clear that even if petitioner
No.1 has violated the said order, it is not open to respondent No.7
and his associates to harass the petitioners or to intimidate them.
The proper course for them is to approach the concerned court
seeking action for breach of its order. No law or religion gives a
license to a father to harass or intimidate his major daughter just
because she does not accede to wishes of her father to marry a
particular person. It is not open to a father or relatives of a girl to
take law into their own hands. It is the duty of the Court to protect
life and liberty of a major girl who, out of her own volition, wants
to reside separately from her father.
6) For the foregoing reasons, the writ petition is allowed to the
extent that the respondents No.1 to 6 are directed to ensure that the
petitioners are not harassed at the behest of respondents No.7 to 9
and it is also directed that they shall be given proper security as
and when the official respondents are approached by petitioners in
this regard.
Whether the order is reportable: Yes/No
|
The Jammu And Kashmir High Court today observed that no law or religion gives a license to a father to harass or intimidate his major daughter just because she does not accede to his wishes to marry a particular person.This assertion came from the Bench of Justice Sanjay Dhar while hearing a protection plea filed by one Anjum Afshan (petitioner no. 1) along with her husband (petitioner no. 2)...
The Jammu And Kashmir High Court today observed that no law or religion gives a license to a father to harass or intimidate his major daughter just because she does not accede to his wishes to marry a particular person.
This assertion came from the Bench of Justice Sanjay Dhar while hearing a protection plea filed by one Anjum Afshan (petitioner no. 1) along with her husband (petitioner no. 2) who alleged that she would be killed by her own father as he is unhappy because of her marriage with petitioner.
Case background
She also claimed that her father wanted her to marry an illiterate truck driver and the same was resisted by her as she wanted to marry the petitioner no. 2.
Responding to these allegations, the father of the woman (petitioner no. 1) filed a reply before the Court and claimed the woman married petitioner No.2 by suppressing the fact that there is already a restraint order passed by Sub Judge, Sopore, whereby she had been restrained from contracting marriage.
It was further contended by him that as per Shariat, consent of the father is very important for a marriage of a daughter, and without the consent of the father, marriage is incomplete.
Court's observations
At the outset, the Court noted that both the petitioners are major and that they have entered into wedlock out of their own will and volition.
Regarding the restraint order passed by the Sub Judge, Sopore, the Court noted that whether the court below was justified in passing an order of restraint on the marriage of petitioner No.1, would be decided in appropriate proceedings.
"However, one thing is clear that even if petitioner No.1 has violated the said order, it is not open to respondent No.7 (father) and his associates to harass the petitioners or to intimidate them. The proper course for them is to approach the concerned court seeking action for breach of its order" the Court further added.
Further, stressing that no law or religion allows a father to harass a daughter if she refuses to marry the person of his choice, the Court importantly, observed thus:
"No law or religion gives a license to a father to harass or intimidate his major daughter just because she does not accede to wishes of her father to marry a particular person. It is not open to a father or relatives of a girl to take law into their own hands. It is the duty of the Court to protect life and liberty of a major girl who, out of her own volition, wants to reside separately from her father."
Lastly, allowing the plea, the Court directed the official respondents to provide security to the petitioners if they approach them.
Case title - ANJUM AFSHAN & ORS. v. STATE OF J&K & ORS.
Read Order
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Seniority List of Multi Purpose Health Workers (male) as on 31.08.2018
published on 20.12.2018. The petitioner has been placed at serial No. 184
on the merit list which is germane for consideration for promotion to the
post of Multi Purpose Health Supervisors. The placement of petitioner at
serial No. 184 in list rather than his expected placement at serial no. 105-
A is on the ground that the petitioner was appointed as Multi Purpose
Health Worker and joined on 09.07.2013.
3 Facts in brief would indicate that the Gujarat Panchayat Services
Selection Board, issued an advertisement for recruitment to the post of
Multi Purpose Health Worker (male). The petitioner applied on-line. He
was placed at serial no. 677, considering his written test marks at 55.80
plus additional marks for sports at 2.79 making a total merit secured as
3.1 On 27.08.2012, the petitioner was called for verification of
documents, on which date, he remained present with a certificate issued
by the Principal of Shri Saraswati Vidya Mandir certifying the
petitioner’s proficiency in cricket. The Rajkot District Panchayat Services
Selection Board informed the petitioner that he would not be entitled to
the additional 2.79 marks for sports as the certificate was of the school
and the merit would be considered only as 55.80. Candidates who were
selected along with the petitioner were offered appointments on
01.10.2012 and they joined on 03.10.2012. On record is a letter dated
09.10.2012 addressed by the petitioner to the respondent No.3 indicating
that even if his marks for the sports i.e. 2.79 marks are not considered, he
would otherwise be on merit, and therefore, he would not insist for
pressing for the additional marks as he would otherwise fall within the
merit for preference for appointment.
3.2 The petitioner was not issued an order of appointment and it was
only on 08.07.2013 that the petitioner was offered appointment which he
accepted and joined on 09.07.2013. Based on this date of joining, the
petitioner is placed at merit seniority No. 184 in the seniority list which is
under challenge.
4 Mr.K.B.Pujara, learned advocate for the petitioner, would draw the
Court’s attention to the seniority list and submit that the candidates who
were offered appointment along with the petitioner and who joined on
03.10.2012 were placed on the seniority list at serial no. 105 , merit order
985 and at 106 merit no. 1053. Admittedly, since the petitioner had merit
higher than the candidate at 106, he was entitled to placement at 105-A.
The candidates shown at 106 and 107 have subsequently been based on
this placement promoted as Multi Purpose Health Supervisors by an order
of 08.03.2019. He would therefore submit that there was no delay on the
part of the petitioner which could go against him as it was a delay purely
attributable to the respondents who, despite the petitioner accepting the
stand of the respondents of not insisting a certificate of cricket issued an
appointment order only after nine months and eight days.
4.1 Reliance was placed on a Resolution of the State dated 22.01.2009.
Sub-clause (ch) of para 11 of the resolution was relied upon with regard
to the order of preference in the merit, when the delay is not on account
of the candidate who has secured appointment. Reliance was also placed
on a decision of the Hon’ble Supreme Court in the case of M.C.D vs.
Veena & Ors., reported in (2001) 6 SCC 571.
5 Mr.H.S.Munshaw, learned counsel for the respondent No.2 have
taken the Court through the affidavit-in-reply filed on behalf of the Chief
District Health Officer, Rajkot District Panchayat. He would submit that
since the petitioner could not produce the Sports Certificate in accordance
with the rules, he was addressed a letter dated 03.10.2012 to submit the
same within four days. He did not do so.
5.1 The affidavit-in-reply further indicates that though the petitioner
was not holding a requisite Sports Certificate for availing the benefit of
additional marks, he has misrepresented his case while submitting his
application by providing incorrect information for availing employment.
The delay was solely on account of the petitioner for which the
authorities cannot be held responsible and the application was only
reconsidered when the petitioner requested that he be considered on the
basis of he having secured 55.80 marks.
5.2 In para 5 of the reply, Mr.Munshaw, learned advocate, would
submit that a revised merit list was published by the Board on
21.06.2013, pursuant to which the appointment order dated 08.07.2013
was issued.
6 Considering the arguments of the learned counsels for the
respective parties, it is undisputed that the first offer of appointment to
the petitioner as well as to the candidates who figure in the seniority list
of 31.08.2018 at serial nos. 105 and 106 were offered appointments
together with the petitioner on 01.10.2012. Their merit was at 985 and
1053 respectively. Pursuant to the letter of 03.10.2012, the petitioner
immediately on 09.10.2012 had offered himself for appointment minus
the Certificate of Cricket categorically pointing out to the authorities that
his name otherwise also fall within the merit. It took nine months and
eight days for the respondents to react and respond and ultimately offered
an appointment to the petitioner only on 08.07.2013 and the petitioner
joined on 09.07.2013. The delay, therefore, cannot be attributed to the
petitioner who had immediately within four days offered himself without
insisting for the Certificate of Cricket and on consideration of the merit at
55.80 minus the score of 2.79 percent of cricket. Placement therefore at
seniority no. 184 in spite of he having a merit, holding the petitioner
responsible for the delay in joining is misconceived.
6.1 It will be fruitful to note the observations of the Hon’ble Supreme
Court in the case of M.C.D vs. Veena (supra). Paras 8,9 and 10 need to
be considered and are referred to as hereunder:
“8 However, one aspect has to be borne in mind and that is the
respondent candidates had made applications as if they belong to
OBCs on the basis of the certificates issued by the State from
which they migrated to the national Capital Territory of Delhi, but
if the certificates issued in their original States of which they are
permanent or ordinary residents were not good, the applications
should have been treated as if they had been made in the general
category and cases of the respondent candidates ought to have
been considered in the general category. Therefore, to the extent,
the applicants have attained necessary merit in the general list,
they deserve to be appointed.
9 The learned counsel for the appellants, however, pleaded
that the respondent candidates having applied for the posts as if
they belong to OBC groups, their applications could not be treated
as falling under the general category. We fail to appreciate this
contention. The particulars furnished by the respondent candidates
clearly give in detail their general qualifications and eligibility.
The only additional aspect stated by them in their respective
applications or in the certificates supported thereto is that they
belong to OBC categories. Hence, their cases ought to have been
considered in the general category as if they do not belong to OBC
categories in the circumstances arising in this case.
10 We, therefore, in allowing these appeals direct that the cases
of the respondent candidates shall be treated as if they do not
belong to OBC groups but fall under the general category and
their cases shall be examined and they shall be appointed in
appropriate posts of primary and nursery teachers if they have
attained the necessary merit in the select list. This exercise shall be
done within a period of three months from today. It is brought to
our notice that there are several vacancies still available with the
appellants in this category of posts and no difficulty would arise in
the matter of appointing the respondent candidates to those posts.
However, if any difficulty arises, it shall be the duty of the
appellants to create appropriate posts and appoint the respondent
candidates to such vacancies falling under the general category.”
6.2 In para 9, the Hon’ble Supreme Court on facts when found that
even the OBC certificate was not produced, the respondent therein have
been considered in the general category, would apply to the facts of the
present case. Immediately, after offering appointment to the petitioner,
the petitioner stepped back accepting the stand of the respondents in not
insisting for his Sports Certificate being considered. The respondents
reacted and responded in appointing the petitioner only on 08.07.2013
which was a delay purely attributable to the respondents. Pending the
petition, the candidates at serial numbers 106 and 107 have been
appointed as Multi Purpose Health Supervisors.
7 The petition is allowed, accordingly. The consequential effect of
quashing the placement at 184 of the petitioner would entitle the
petitioner for being promoted to the post of Multi Purpose Health
Supervisor with effect from 08.03.2019 with all consequential benefits
including arrears of pay. Necessary compliance of the order be made
within a period of six weeks from the date of receipt of copy of this order.
Rule is made absolute to the above extent. Direct service is permitted.
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A single judge bench of the Gujarat High Court consisting of Justice Biren Vaishnav held that delay in appointment, when entirely attributable to the employer and caused due to no fault of the candidate could not be allowed to result in a delayed promotion for the said candidate.
Briefly, the facts of this case are that the Gujarat Panchayat Services Selection Board issued an advertisement for recruitment to the post of Multi-Purpose Health Worker (Male). The petitioner applied for the same online. He was placed at Serial No. 677, as his written test marks were 55.80 and he got additional 2.79 marks for sports, making his total 58.59.
He was later called for verification of documents. Here he presented himself with a certificate issued by the Principal of Shri Saraswati Vidya Mandir certifying the petitioner's proficiency in cricket. The Rajkot District Panchayat Services Selection Board informed him that he would not be entitled to the additional 2.79 marks for sports as the certificate was of a school. The petitioner wrote a letter to the respondent indicating that even if his marks for the sports were not considered, he would still be on merit, therefore, he did not insist on the additional marks.
The petitioner was not issued an order of appointment on 01.10.2012 like other candidates who were able to join by 03.10.2012. Instead, he was offered an appointment on 08.07.2013 which he accepted and joined on 09.07.2013. Based on this date of joining, the petitioner was placed at merit seniority No. 184 in the seniority list. This petition was filed challenging the said seniority list as the petitioner contended that his placement should not be at Serial No. 184 in list, rather, it should be at Serial No. 105- A
The counsel for petitioner submitted that the candidates who were offered appointment along with the petitioner and who joined on 03.10.2012 were placed on the seniority list at Serial No. 105 , merit order 985 and at Serial No. 106 merit no. 1053. Since the petitioner had a higher merit than the candidate at 106, he was entitled to placement at 105-A. The candidates shown at 106 and 107 have subsequently been based on this placement promoted as Multi-Purpose Health Supervisors by an order of 08.03.2019. The petitioner thus submitted that there was no delay on his part which could go against him as it was a delay purely attributable to the respondents who, despite the petitioner accepting the stand of the respondents of not insisting a certificate of cricket issued an appointment order only after nine months and eight days.
Per contra, the counsel for respondent submitted that since the petitioner could not produce the Sports Certificate in accordance with the rules, he was addressed a letter dated 03.10.2012 to submit the same within four days. He did not do so. Though the petitioner was not holding a requisite Sports Certificate for availing the benefit of additional marks, he had misrepresented his case while submitting his application by providing incorrect information for availing employment. Thus, it was submitted that the delay was solely on account of the petitioner for which the authorities could not be held responsible.
The court held that the delay could not be attributed to the petitioner who had immediately within four days offered himself without insisting for the Certificate of Cricket and on consideration of the merit at 55.80 minus the score of 2.79 percent of cricket. The court relied upon the observations of the Supreme Court in the case of M.C.D vs. Veena (2001) 6 SCC 571 in which, the Supreme Court on facts found that even when the OBC certificate was not produced, the respondent was considered in the general category.
Thus, the court held that–
"Immediately, after offering appointment to the petitioner, the petitioner stepped back accepting the stand of the respondents in not insisting for his Sports Certificate being considered. The respondents reacted and responded in appointing the petitioner only on 08.07.2013 which was a delay purely attributable to the respondents. Pending the petition, the candidates at serial numbers 106 and 107 have been appointed as Multi Purpose Health Supervisors. The petition is allowed, accordingly. The consequential effect of quashing the placement at 184 of the petitioner would entitle the petitioner for being promoted to the post of Multi Purpose Health Supervisor with effect from 08.03.2019 with all consequential benefits including arrears of pay."
Case Title : BHALODIYA RAVIKUMAR JAYNATILAL Versus STATE OF GUJARAT
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Prayer in W.P.No.19342 of 2013: Writ Petition under Article 226 of the Constitution of
India, praying for the issuance of a Writ of Certiorari, calling for the records relating to the
proceedings of the 2nd respondent dated 2.7.2013 bearing No. Pro. G2/ 56444/ 2013 and
quash the same.
Prayer in W.P.No.19343 of 2013: Writ Petition under Article 226 of the Constitution of
India, praying for the issuance of a Writ of Certiorarified Mandamus, calling for the records
relating to G.O.Ms.No.45 Youth Welfare and Sport Development Department, the 1st
respondent dated 12.10.2000 and quash the same and direct the 1st respondent to disburse
the sum of money due towards advertisement charges to the petitioner as per
G.O.Ms.No.324 dated 6.5.1996.
Prayer in W.P.No.19344 of 2013: Writ Petition under Article 226 of the Constitution of
India, praying for the issuance of a Writ of Certiorari, calling for the records of the
communication of the 1st respondent dated 2.6.2012 in letter No.52/S2/2007 and quash the
same.
The facts in all these Writ Petitions are common and the issues involved are also
common and hence, this Court is taking up all the Writ Petitions together and passing this
2.The petitioner is the proprietor of M/s. Meena Advertisers which is an advertising
concern. The South Asian Federation Games (hereinafter referred to as ‘SAF games’) were
held at Chennai during December 1995. The Government of Tamil Nadu made elaborate
arrangements to conduct the event in a grand manner. The Government thought it fit to
utilise these games and make a viable economic proposition by commercialisation of the
events and to involve private players. In the said process, M/s.Times TV was appointed as
the marketing agency and they were expected to obtain sponsorship for television, instadia
publicity, sole status appointment such as mineral water supplies, official caterer etc. They
were expected to pay 30% of the gross revenue generated through commercialisation and
for all direct revenue sources through SAF games organisers. M/s. Times TV was permitted to
retain 5% commission.
3.A letter of appointment was issued to M/s. Times TV on 2.11.1995. It seems that
M/s. Times TV were not able to get any concrete financial commitment and therefore, it was
decided to call for quotations from leading marketing agents in Madras city and appoint
marketing agent to carry on with the decision taken by the Government.
4.The petitioner participated in the tender process and submitted the highest bid
amount. Thereafter, the petitioner was called for negotiations and was asked to improve the
offer and ultimately the petitioner guaranteed a sum of Rs.3 Crores for commercialisation of
the games subject to certain rights given to the petitioner. This resulted in the passing of
G.O.(D) No. 177, dated 9.12.1995. The Government Order recorded the guarantee given by
the petitioner and the exclusive rights given to the petitioner were provided at paragraph 9 of
the G.O. and paragraph 10 of the G.O. contemplated signing of a Memorandum of
Understanding and the conditions were also specifically stipulated therein. The G.O. also
directed the petitioner to pay a sum of Rs.3.50 Lakhs to M/s. Times TV as a reimbursement
for the publicity measures already undertaken by them.
5.A Memorandum of Understanding was entered into on 9.12.1995 and it specifically
provided the terms and conditions and the rights given to the petitioner.
6.After the completion of the SAF games, the petitioner made a representation on
3.2.1996 to the Chairman and Managing Director of TAMIN and requested for remitting a
sum of Rs.1 Crore instead of Rs.3 Crores and to waive the balance of Rs.2 Crores. The
petitioner gave various reasons for making this request. According to the petitioner, he
incurred a loss of Rs.26.75 Lakhs and that he had spent a sum of Rs.2.25 Crores towards
advertisement charges and requested the Government to release the payment.
7.The Government issued G.O.Ms.No.324, dated 6.5.1996 and waived the sum of
Rs.2 Crores that was guaranteed by the petitioner subject to the condition that the petitioner
must pay the sum of Rs.3.50 Lakhs to M/s. Times TV and must withdraw the suit filed by him
for recovery of money. Accordingly, the petitioner paid the amount to M/s. times TV and also
withdrew C.S.No.95 of 1996 that was pending before this Court.
8.An FIR came to be registered by the Vigilance and Anti-Corruption Department on
27.8.1996. The petitioner was also added as A6 in this FIR. The complaint that led to the
registration of the FIR was that a favourable treatment was given to the petitioner inspite of
the Model Code of Conduct which was in force in view of the Assembly elections and inspite
of the serious objections raised by the Finance Department which resulted in the State
exchequer incurring a wrongful loss of a sum of Rs.2 Crores. The FIR was registered as
against six accused persons for offences under the Prevention of Corruption Act and IPC.
9.The petitioner started knocking the doors of the State Government and called upon
the Government to pay the expenses incurred by the petitioner towards advertisement
charges. The Government replied to the petitioner stating that the criminal case is pending
and it will not be possible to settle the claims made by the petitioner.
10.The petitioner was also blacklisted by the Government of Tamil Nadu through a
G.O. dated 3.4.1997. It is stated that W.P.No.5257 of 1997, was filed against this Order and
the Writ Petition was allowed by an Order dated 5.10.2002.
11.A communication dated 20.6.2000 was sent to the petitioner calling upon the
petitioner to show cause as to why G.O.Ms.No.324, dated 6.5.1996 should not be cancelled.
The petitioner challenged the same by filing W.P.No.11616 of 2000 and this Writ Petition was
dismissed by an Order dated 12.7.2000 and the petitioner was directed to submit his reply for
the show cause notice.
12.There was exchange of notices between the petitioner and the Government
wherein the petitioner was requesting for copies of documents relied upon by the
Government. Ultimately, the petitioner was allowed to inspect the documents and according
to the petitioner, the counsel was allowed to inspect only certain documents and the entire
materials were not shown to him. Thereafter, the petitioner once again filed W.P.No.14476 of
2000 questioning the letter dated 21.8.2000 issued by the Government, wherein the
Government informed the petitioner that no further extension of time will be granted for
giving the reply for the show cause notice and the petitioner also sought for the relevant
materials relied upon by the Government. The above Writ Petition came to be dismissed by
this Court by an Order dated 25.8.2000. The petitioner thereafter gave an additional reply
dated 27.8.2000 through his Counsel.
13.The Government considered the explanation given by the petitioner and
G.O.Ms.No.45, dated 12.10.2000 was issued and by virtue of the same,
G.O.Ms.No.324, dated 6.5.1996 was cancelled. The petitioner filed W.P.No.17844 of 2000 and
challenged G.O.Ms.No.45, dated 12.10.2000. The Government also filed a detailed Counter in
this Writ Petition. The petitioner chose to withdraw this Writ Petition on the ground that he
intends to approach the Government to reconsider the G.O. and the Writ Petition, by an
Order dated 22.8.2002 was dismissed as withdrawn and it was made clear that if the
petitioner is aggrieved by any further decision of the Government, he was at liberty to
approach the Court.
14.The petitioner made a representation dated 2.12.2002 to the Government and
requested for the cancellation of G.O.Ms.No.45, releasing his payments incurred towards
advertisement charges and to drop the action in the criminal case.
15.A closure report was filed in the criminal case before the concerned Court and
further action was dropped and the concerned Court also passed an Order on 9.12.2004,
recording the same.
16.The Collector of Chennai issued a Notice dated 31.10.2006 and initiated
proceedings under the Revenue Recovery Act for the recovery of a sum of Rs.2 Crores from
the petitioner. The petitioner filed W.P.No.49785 and 49786 of 2006 and challenged
G.O.Ms.No.45 and also the communication dated 31.10.2006 sent by the Collector.
17.The petitioner chose to withdraw both the Writ Petitions on the ground that they
once again wanted to make a representation to the Government and this Court disposed of
the Writ Petitions as withdrawn and gave liberty to the petitioner if in any case, any adverse
order is passed against him. Immediately thereafter a representation was made by the
petitioner to the Government on 6.9.2011 and a further representation on 16.9.2011.
A detailed reminder dated 11.10.2011 was also sent to the Government.
18.The Government, on considering the representations made by the petitioner,
through a letter dated 2.6.2012, rejected the request made by the petitioner. The District
Collector also initiated proceedings under the Revenue Recovery Act, for the recovery of a
sum of Rs.2 Crores from the petitioner.
19.The petitioner has therefore filed three Writ Petitions. W.P.No.19342 of 2013, has
been filed challenging the proceedings of the District Collector dated 2.7.2013. W.P.No.19343
of 2013, has been filed challenging G.O.Ms.No.45, dated 12.10.2000. W.P.No.19344 of 2013,
has been filed challenging the letter dated 2.6.2012 issued by the Government rejecting the
representations made by the petitioner.
20.The 1st respondent has filed a common counter affidavit. All the claims made by the
petitioner has been refuted in the counter affidavit and the 1 st respondent has given their
justification for cancelling G.O.Ms.No.324 and for initiating Revenue Recovery proceedings
against the petitioner.
21.Heard Mr.G.Rajagopalan, learned Senior Counsel for the petitioner and Mr.U.Arun,
learned Additional Advocate General for the respondents.
22.This Court has carefully considered the submissions made on either side and the
23.The main issue that has to be focused by this Court is with respect to
G.O.Ms.No.45, dated 12.10.2000 through which the earlier G.O. in G.O.Ms.No.324, dated
6.5.1996 was cancelled and the waiver that was granted in favour of the petitioner was
withdrawn. The subject matter of challenge in W.P.No.19342 and 19344 of 2013 wherein the
proceedings of the Collector of Chennai dated 2.7.2013 and the communication of the
Government of Tamil Nadu, dated 2.6.2012, are consequential to G.O.Ms.No.45. Therefore, if
G.O.Ms.No.45 is interfered by this Court, the consequential proceedings will automatically
fall. On the other hand, if this Court does not interfere with G.O.Ms.No.45, the consequential
proceedings will stand.
24.The main ground of attack by the Learned Senior Counsel appearing on behalf of
• The Government Order was passed in violation of principles of natural justice.
• After the FAD report was filed in the criminal case, there is no ground to
sustain the impugned G.O.
• The materials relied upon by the Government was not disclosed to the
petitioner.
• The impugned G.O. suffers from lack of jurisdiction since the dispute between
the petitioner and the Government should have been decided by a different
body and the Government should not have decided its own case.
• The petitioner was made to act upon G.O.Ms.No.324 and hence,
G.O.Ms.No.45 is vitiated by principles of estoppel.
• The impugned G.O. is vitiated by mala fides.
25.This is a peculiar case where the petitioner used his proximity with the Government
which was in the helm of affairs and managed to get certain favours. The proximity of the
petitioner with the head of the Government is clearly admitted by the petitioner in the
affidavit filed in support of the Writ Petition. The conduct of the petitioner right through also
clearly indicates that he will use this Court by filing Writ Petitions whenever the political
climate is not in his favour and withdraw the same once it turns in his favour. The reason as
to why this Court predicated this Order with such an adverse statement, will be evident while
discussing the facts of the case hereunder.
26.The Government took a decision to use the SAF games as a viable economic
proposition by commercialisation of the events involving private sector in this regard. This
decision was taken on 28.7.1994 and the SAF games were planned to be conducted between
18.12.1995 to 27.12.1995. A tender was floated in this regard on 31.5.1995 and M/s. Times
TV, was declared as the highest bidder and they started spending money on the
advertisements. It is at this point of time, the petitioner got into the scene and he quoted an
amount of Rs.2 Crores. Immediately, a discussion was held with the petitioner and he seems
to have increased the offer to Rs.3 Crores. A G.O. was passed on 9.12.1995 in favour of the
petitioner and a Memorandum of Understanding was also entered into with the petitioner.
The G.O. as well as the Memorandum of Understanding contains various terms and
conditions. After the SAF games ended, the petitioner made a request on 3.2.1996 seeking
for the waiver of a sum of Rs.2 Crores and the petitioner came forward to remit only a sum
of Rs.1 Crore. On 15.4.1996, the petitioner submitted a breakup of the expenditure and
receipts. In this letter, there were absolutely no details or bills attached to substantiate the
claim made for the expenditure incurred by the petitioner. By the time this letter was issued,
the Model Code of Conduct was brought into force by the Election Commission on 10.3.1996
since the Assembly elections were slated to be held on 2.5.1996. It is quite surprising that
even during this period, the request made by the petitioner was very actively considered and
G.O.Ms.No.324, dated 6.5.1996 was issued by granting waiver to the petitioner to the tune of
27.The results of the Assembly elections was declared on 9.5.1996 and the party in
power lost the said election. The party which came to power found that the entire transaction
was done against the interest of the State and consequently, there was a loss for the State
exchequer. It was also found that the G.O. was issued inspite of the objections raised by the
Finance department. It was further found that the G.O. was issued hurriedly just before the
declaration of the election results and when the Model Code of Conduct was in force. Hence,
the Vigilance and Anti-Corruption Wing registered an FIR against six accused persons and the
petitioner was made as A6. The investigation was going on in this criminal case.
28.The Government took a decision to reconsider G.O.Ms.No.324 and hence issued a
show cause notice dated 20.6.2000 to the petitioner calling upon the petitioner to show
cause as to why the said G.O. should not be cancelled. The attempt made by the petitioner
to challenge the steps taken by the Government to cancel the G.O. in W.P. 11616 of 2000
and W.P.14476 of 2000 failed and this Court directed the petitioner to submit his reply for the
show cause notice. Accordingly, the petitioner also gave his reply.
29.The Government, on considering the reply given by the petitioner and various other
facts and circumstances, issued G.O.Ms.No.45, dated 12.10.2000 cancelling G.O.Ms No.324,
dated 6.5.1996. This Court carefully went through the entire G.O. and found that sufficient
reasons have been assigned to justify the cancellation of G.O.Ms.No.324. Every ground that
was raised by the petitioner was considered and rejected and the same is evident from
paragraph 21 of the said G.O. The Government came to a categoric conclusion that it was the
petitioner who volunteered and agreed to give a minimum guarantee amount of Rs.3 Crores
to the Government and there was no compulsion for the petitioner if he had felt that it will
not be possible for him to earn such an income. The Government also came to a conclusion
that G.O.Ms. No. 324 was issued by flouting the Tamil Nadu Government Business Rules and
undue favouritism was shown in favour of the petitioner.
30.The petitioner chose to challenge G.O.Ms.No.45 by filing W.P.17844 of 2000. A
detailed counter affidavit was also filed by the Government justifying the issuance of the G.O.
If the petitioner was really serious and aggrieved by the issuance of G.O.Ms.No.45, he should
have contested this Writ Petition on merits. However, the petitioner found that there was a
subsequent change in the political climate and the party which favoured him took over the
reins. The petitioner obviously wanted to take advantage of the changed scenario and he
consciously took a decision to withdraw the Writ Petition and accordingly, the Writ Petition
was dismissed as withdrawn through an Order dated 22.8.2002. Immediately thereafter, the
petitioner makes a representation dated 2.12.2002 to the Government and it will be
interesting to take note of the request that was made by the petitioner which is extracted
“9) Hence I request the Government.
(g) To Cancell G.O.MS No.45 youth Welfare and Sports Development
Department dated 12.10.2000 and restore G.O. M.S no.324 dated 6.5.96.
(h) Release Payment of newspapers to us, so that we can inturn
release payment to the newspapers.
(i) Forthwith drop further action in crime no.8/96 DVAC Hq.”
31.The representation made by the petitioner was acted upon and as a first step, a
closure report was filed before the Criminal Court and an Order was passed on 9.12.2004,
closing the FIR as “further action dropped”.
32.The petitioner also started pushing for the payments made by him for
advertisement and hence called upon the Government to release the payments as per
G.O.Ms.No.324. At this point of time, there was once again a change in Government after the
next elections. Since G.O.M.S.No.45 was in force, the Collector of Chennai called upon the
petitioner to settle the sum of Rs.2 Crores, failing which, proceedings would be initiated
33.The petitioner decided to once again challenge G.O.M.S.No.45 and also the letter of
the Collector informing the petitioner that proceedings will be initiated under the Revenue
Recovery Act and hence, filed W.P.Nos.49785 and 49786 of 2006. Some interim orders were
passed in these Writ Petitions and these Writ Petitions were pending.
34.Once again there was a change in the political climate in the year 2011. The
petitioner obviously decided to make use of the same and once again chose to withdraw both
the Writ Petitions and the Writ Petitions were dismissed as withdrawn by an Order dated
30.8.2011. The petitioner also got a liberty to work out his remedy with the State
Government. For the first time, the then Government was not prepared to accede to the
request made by the petitioner for withdrawing G.O.Ms.No.45 and for making the payments
claimed by the petitioner. Hence, the representations made by the petitioner were rejected
through a communication dated 2.6.2012 and once again revenue recovery proceedings were
initiated by the Collector for recovery of a sum of Rs.2 Crores from the petitioner. Once again
the petitioner knocked the doors of this Court and filed the above three Writ Petitions. It is
clear from the conduct of the petitioner that he will resort to legal proceedings depending
upon the Government that was in the helm of affairs. By doing so, the petitioner has
challenged G.O.Ms.No.45 for the third time and the revenue recovery proceedings for the
second time before this Court.
35.The ground raised by the learned Senior Counsel for the petitioner as if, the
impugned G.O. was issued in violation of principles of natural justice, is clearly unsustainable.
The petitioner was put on notice and he gave detailed reply and every ground was
considered and only thereafter, G.O.Ms.No.45 came to be issued. Merely because further
action was dropped in the criminal case, that by itself is not a ground for withdrawing
G.O.Ms.No.45 and the reasons for issuing this G.O. has been elaborately discussed in the
36.Insofar as the ground of lack of jurisdiction is concerned, it is always left open to a
Government to correct its mistakes when a palpable illegality is brought to its notice. The
circumstances under which G.O.Ms.No.324 was issued, is quite curious. This G.O. was issued
with a tearing hurry just before the election results were announced and the powers that be
went that extra mile to favour the petitioner and caused a loss of Rs.2 Crores to the State
exchequer. The petitioner was bound by G.O.(D)No.177 and Memorandum of Understanding
and the terms and conditions contained therein and for a commercial venture of this nature,
it is too unnatural for a Government to waive the amount undertaken by the petitioner. That
is the reason why this Court commented that undue favour was shown to the petitioner
utilising his proximity to the then head of the Government. In view of the same, this Court
holds that it was perfectly within the power and jurisdiction of the Government to issue
37.There is no question of applying the principles of estoppel in this case since
G.O.Ms.No.324 was a favour that was done to the petitioner for obvious reasons and the
principle of estoppel is not meant to be applied in cases of this nature.
38.The ground of mala fides raised by the Petitioner also does not pass muster. This
Court has already found that there were sufficient grounds to cancel G.O.Ms.No.324 through
G.O.Ms.No.45 and this was done after affording opportunity to the petitioner and after
providing sufficient reasons for the cancellation of the earlier G.O. If any person chooses to
conduct his business with an apparent political identity, it has its own consequences. With
such a political identity, a routine ground that is always raised is mala fides when action is
initiated by the subsequent Government. Mala fides is a ground which has to be pleaded and
proved and it is not a matter of assumption. The petitioner has not made out a case for mala
fides and G.O.Ms.No.45 gives solid reasons as to why the earlier G.O. was cancelled and it
has to be sustained on its own merits.
39.The learned Additional Advocate General questioned the maintainability of these
Writ Petitions on the ground that the petitioner had withdrawn the earlier Writ Petitions and
hence, the present Writ Petitions are hit by the principles of res judicata. In the considered
view of this Court, the petitioner managed to get some liberty from this Court and hence this
Court did not want to reject the Writ Petitions on the ground of res judicata and hence,
discussed the merits of the case. However, the manner in which the petitioner was filing one
Writ Petition after another and withdrawing it on his own whims and fancies, is a conduct
which strongly goes against the petitioner.
40.In view of the above discussion, this Court does not find any merits in the claim
made by the petitioner and there are absolutely no grounds to interfere with G.O.Ms.No.45
dated 12.10.2000. Accordingly, W.P.No.19343 of 2013 is liable to be dismissed.
41.Insofar as W.P.Nos.19342 and 19344 are concerned, the impugned proceedings
under challenge are consequential to G.O.Ms.No.45. Since this Court upholds G.O.Ms.No.45,
the consequential proceedings will also stand and as a result, these two Writ Petitions are
also liable to be dismissed.
42.The learned Senior Counsel appearing on behalf of the petitioner was continuously
harping on the advertisement charges not being paid by the Government. The petitioner
ought to have prosecuted and sought for the recovery of the amount in the Civil Suit. The
petitioner took a calculated risk and withdrew the Civil Suit and hence he has to blame only
himself for the situation in which he is placed. A litigant must understand that Court
proceedings are to be taken seriously and the rights have to be agitated sincerely before a
Court. The Court will come to the aid of only such litigants. Insofar as the petitioner is
concerned, he was coming to this Court as if it was an amusement park and he got in and
got out as per his own whims and fancies. The petitioner has to necessarily face the
consequences for such a conduct.
43.In the result, all the Writ Petitions stand dismissed and the petitioner is directed to
pay a cost of Rs.1,00,000/- (Rupees One Lakh only) to the Chief Justice Relief Fund
within a period of four weeks from the date of receipt of copy of this Order. No costs.
Consequently, connected miscellaneous petitions are closed.
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Coming down heavily on a litigant for approaching the court on his whims and fancies depending upon the change in the political climate of the State, the Madras High Court recently dismissed a plea and imposed heavy costs. Justice Anand Venkatesh noted that from the conduct of the Petitioner, it was clear that he would use this Court by filing Writ Petitions whenever the political...
Coming down heavily on a litigant for approaching the court on his whims and fancies depending upon the change in the political climate of the State, the Madras High Court recently dismissed a plea and imposed heavy costs.
Justice Anand Venkatesh noted that from the conduct of the Petitioner, it was clear that he would use this Court by filing Writ Petitions whenever the political climate was not in his favour and withdraw the same once it turns in his favour. It remarked as under:
A litigant must understand that Court proceedings are to be taken seriously and the rights have to be agitated sincerely before a Court. The Court will come to the aid of only such litigants. Insofar as the petitioner is concerned, he was coming to this Court as if it was an amusement park and he got in and got out as per his own whims and fancies. The petitioner has to necessarily face the consequences for such a conduct.
Background
When the South Asian Federation (SAF) games were conducted in Chennai in 1995, the government decided to use it as a visible economic proposition by commercialisation of the events involving private sector. A tender was floated and M/s. Times TV, was declared as the highest bidder and they started spending money on the advertisements. The petitioner entered the scene and quoted an amount of Rs.2 Crores which he later increased to Rs.3 Crores. G.O. was passed on 9.12.1995 in favour of the petitioner and a Memorandum of Understanding was also entered into with the petitioner.
After the SAF games ended, the petitioner made a request on 3.2.1996 seeking for the waiver of a sum of Rs.2 Crores and the petitioner came forward to remit only a sum of Rs.1 Crore. On 15.4.1996, the petitioner submitted a breakup of the expenditure and receipts. In this letter, there were absolutely no details or bills attached to substantiate the claim made for the expenditure incurred by the petitioner. Subsequently a G.O.Ms.No.324, dated 6.5.1996 was issued by granting waiver to the petitioner to the tune of Rs.2 Crores. This was in light of his proximity with the Government which was in the helm of affairs.
Interestingly, when the subsequent government came into power, it observed that the above GO was issued in spite of objections from the finance department and in a hurried manner. The Vigilance and Anti-Corruption Wing registered an FIR against all involved and started a criminal case.
Meanwhile, the Government, while reconsidering the GO, issued a show cause notice to the Petitioner. Though he challenged the same he was directed by the court to give a reply to the show cause. After considering the reply of the petitioner, the issued G.O.Ms.No.45, dated 12.10.2000 cancelling G.O.Ms No.324, dated 6.5.1996.
The court opined that the petitioner challenged this impugned GO on multiples occasions and withdrew them whenever the political situation in the country was in his favour. While withdrawing these petitions challenging the impugned GO, the reason given by the petitioner was that he intended to make representations before the government. The government considered the representation of the petitioner, rejected it, and initiated revenue recovery proceedings for recovery of Rs. 2 crore. Hence, the present petition was filed by the petitioner challenging both the impugned GO and initiation of revenue recovery proceedings.
The petitioner submitted that the G.O was passed in violation of principles of natural justice. He contended that there was no ground to sustain the impugned G.O after filing of the "Further Action Dropped" Report in the criminal case. He submitted that impugned G.O. suffers from lack of jurisdiction since the dispute between the petitioner and the Government should have been decided by a different body and the Government should not have decided its own case. He also submitted that since he was made to act on the earlier GO, the impugned GO was vitiated by principles of estoppel. He contended that the GO was vitiated by malafides and the materials relied upon by the State were also not disclosed to the petitioner.
The respondents submitted that the petition was not maintainable on the ground that the petitioner had withdrawn the earlier Writ Petitions and hence, the present Writ Petitions are hit by the principles of res judicata.
The court considered the submissions of the petitioner. With respect to the plea that the GO was passed in violation to the principles of natural justice, the court opined that the same was unsustainable. The petitioner was given due notice, to which he replied. Every ground was considered in detail and only thereafter the GO was passed.
With respect to the plea of lack of jurisdiction, the court observed that it was always left open to a Government to correct its mistakes when a palpable illegality is brought to its notice. Since there was apparent favouritism existed from the beginning which also caused a loss of Rs.2 Crores to the State exchequer, the Government was within it's power and jurisdiction to issue GO. Since the earlier GO was a favour done for the petitioners, the principle of estoppel would not apply to the present case.
The court was not satisfied with the contention of malafide raised by the Petitioner. The court remarked that sufficient grounds existed for cancellation of the GO. The court observed that it was a trend to raise the plea of malafide whenever a subsequent government initiated actions.
"If any person chooses to conduct his business with an apparent political identity, it has its own consequences. With such a political identity, a routine ground that is always raised is mala fides when action is initiated by the subsequent Government. Mala fides is a ground which has to be pleaded and proved and it is not a matter of assumption. The petitioner has not made out a case for mala fides and G.O.Ms.No.45 gives solid reasons as to why the earlier G.O. was cancelled and it has to be sustained on its own merits."
The court further observed that the plea of non payment of advertisement charges should have been prosecuted by the Petitioner through a Civil Suit. "The petitioner took a calculated risk and withdrew the Civil Suit and hence he has to blame only himself for the situation in which he is placed." the court recorded.
It imposed a cost of Rs.1 Lakh to be deposited to the Chief Justice Relief Fund within a period of four weeks.
Case Title: V.Krishnamurthy v. The State of TN and others
Case No: W.P.Nos.19342, 19343 and 19344 of 2013
Counsel for the Petitioner: Mr.G.Rajagopalan Senior Counsel for. M/s G.R.Associates
Counsel for the Respondent:
Mr.U.Arun, Additional Advocate General Asst.by Mr. R.Kumaravel Additional Government Pleader
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Digitally signed by (BY SRI. PAVANA CHANDRA SHETTY H., ADVOCATE)
WP No. 14860 of 2022
The petitioner has called in question validity of the
order of transfer at Annexure - A dated 23.12.2021. The
facts made out in the petition is that respondent No.6 has
been posted to the place of the petitioner as per the
impugned order at Annexure-A dated 23.12.2021. Insofar
as the posting of the petitioner is concerned, it is only
observed that the petitioner is to report to the competent
authority for obtaining an order for posting. It is further
noticed that it is only on 20.07.2022, more than about six
[6] months after the order at Annexure - A, during the
pendency of the present proceedings, the petitioner has
WP No. 14860 of 2022
been given an order of posting at the Town Municipal
Counsel, Ullal (for vacant post).
2. The only point that requires to be considered is
as to whether the order of transfer after the period of
general transfers could be upheld where no order of
posting has been shown as regards the petitioner. The
legal position insofar as not showing order of posting of an
employee in whose place another employee has been
placed, has been considered in detail by the Division
Bench of this Court in M.Arun Prasad Vs. The
Commissioner of Excise and Others1. The observations
at Paragraph Nos.4 to 7 are reproduced below:
"4. We may record that this Court in the
above referred order dated 16.09.2016 at
paragraph-6 had observed thus:
6. There are two serious infirmities in
the transfer order. One is that when the petitioner
is transferred from the post of Assistant
Conservator of Forest, there is no clear posting
order at a particular post of the petitioner.
W.P.No.58931/2016 (S-KAT) dated 02.03.2017
WP No. 14860 of 2022
Unless the petitioner is lifted from one place
and posted at another place, it cannot be said that
any vacancy has arisen of the petitioner and
such an exercise of the power cannot be
appreciated even if one keeps in mind the
administrative circumstances for the public
interest as the case may be. It is hardly
required to be stated that when ‘A’ is posted in
place of ‘B’ from one place to another then only
there will be a vacancy of ‘A’ and ‘B’ can be posted
at the place of ‘A’. If ‘A’ is lifted and his posting is
kept in lurch and ‘B’ is posted vice-A such
practice cannot be appreciated and deserves to be
rather deprecated and the reason being that the
officer who is lifted from one place is not certain at
which place he has to join the duty and unless he
joins the duty at different place, it cannot be said
that vacancy in law had arisen at his original place.
So long as there is no vacancy at the original place,
the question of posting is without any foundation.
Hence, the said transfer order can be said to
be with the exercise of legal malafide.
5. Thereafter this Court while allowing the petition had
also observed at paragraph-12 in the said decision
which reads as under:
“12. Before parting with, we would find it
appropriate to observe that in number of cases it is
found by this Court that the transfer order is passed in
a manner that one Officer is lifted from one post
but it is not clarified about his next posting and
he is expected to approach before the concerned
Department for appropriate posting and another
Officer vice him is already posted. This practice would
keep the Officer in lurch about his next posting even he
is to be transferred. Such practice is deprecated
by the Court in this matter as well as in other
WP No. 14860 of 2022
matters. A reference may be made to the order passed
by this Court in W.P.No.39438/2016 disposed of
on 19.08.2016 and W.P.No.43919/2016 disposed
of on 23.08.2016. Hence, in order to ensure that
appropriate mechanism is worked out, the registry
shall forward the copy of the order to the Chief
Secretary of the State Government to look into the
matter and to take suitable action.”
6. Pending the present petition, the posting order of
the petitioner was already made. However, the fact
remained that without appropriate posting of the
petitioner, the transfer order was passed coupled with
the aspects that as per the observations made by this
Court in the earlier order, no transfer order could have
been passed without appropriate posting of the Officer
who is lifted from the place he is working."
3. It is clear that the position of law is settled that
passing an order of transfer without showing place of
posting would suffer from legal malafide. This position is
reiterated by the Division Bench of this Court in the latest
decision in Mahiboob Sab Vs. The State of Karnataka
and Others2. It is also to be noticed that this is the stand
of the Government as is noticed from the Circulars
W.P.No.16363/2021 (S-KSAT) dated 31.05.2022
WP No. 14860 of 2022
of 18.01.2017 and 27.03.2017. In fact, the Circular of
27.03.2017 further stipulates that reasons must be
recorded in writing for not showing posting to any
Government Servant and such reasons should be
"compelling administrative reasons like non availability of
post due to abolishment/up-gradation/down-gradation,
shifting in lieu of suspension, requirement of Government
Servant to perform urgent confidential work in a post,
unsuitability or inefficiency to work in the existing vacancy
or for being utilized against temporary and leave vacancy
etc., which are only illustrative but not exhaustive".
Procedure is also shown to review orders of transfer by the
Head of the Department where person displaced is not
shown posting recording reasons in writing.
4. Admittedly, in the present case, none of the
procedures are followed. Despite the observations by the
Division Bench of this Court in M.Arun Prasad's case
WP No. 14860 of 2022
(supra) and also the Government Circulars referred to
above, time and again orders of transfer are being passed
without showing places for posting. In terms of the order
in M.Arun Prasad's case (supra), vacancy will not arise
until an employee in whose place another employee has
been transferred, is shown a place of posting. The
Government to ensure that such instances should not
repeat and strict compliance of Circular dated 27.03.2017
as well as directions of the Division Bench of this Court in
M.Arun Prasad's case (supra).
5. It is also necessary to note that transfer is
made in the month of December. Even as per the records
submitted by the Government, as per note on 01.10.2021
it is observed that if transfers are made after the period of
general transfers, no request for transfers should be
entertained or orders made unless there is a vacant place.
In the present case, as stated earlier, there was no vacant
WP No. 14860 of 2022
place while considering the representation of the
respondent No.6 to be transferred and posted in the place
of the petitioner. It is also noticed that the case of
respondent No.6 is on the basis of the letter of the
Member of the Legislative Assembly. Nevertheless,
procedure requires to be followed.
6. The delay in filing is explained by way of earlier
proceedings instituted by the petitioner before this Court
in W.P.No.3955/2022 (S-RES) disposed of on 22.02.2022
and subsequently, in Application.No.1439/2022 disposed
of on 12.07.2022.
7. Accordingly, on two grounds i.e., not showing
an order of posting for a period of more than six [6]
months and on the ground that no transfer must be made
except to a vacant post after the period of general
transfers, while noticing that the transfer is made in
December 2021 as noticed in the proceedings of transfer,
WP No. 14860 of 2022
the petition is allowed. The impugned order dated
23.12.2021 at Annexure - A is set aside. The parties are
directed to be placed in the position prior to the impugned
It is only expected that the State will ensure strict
compliance with its own Circular of 27.03.2017 as well as
directions of the Division Bench passed in M.Arun
Prasad's case (supra) and the observations in Mahiboob
Sab's case (supra).
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The Karnataka High Court has directed the State government to ensure that if transfers are made after the period of general transfers, no request for transfers should be entertained or orders made unless there is a vacant place. A single judge bench of Justice S Sunil Dutt Yadav allowed a petition filed by one Murthy and set aside the order of transfer dated 23.12.2021 issued to him....
The Karnataka High Court has directed the State government to ensure that if transfers are made after the period of general transfers, no request for transfers should be entertained or orders made unless there is a vacant place.
A single judge bench of Justice S Sunil Dutt Yadav allowed a petition filed by one Murthy and set aside the order of transfer dated 23.12.2021 issued to him. It placed the petitioner back in the position prior to the impugned order of transfer.
Further the bench said,
"It is only expected that the State will ensure strict compliance with its own Circular of 27.03.2017 as well as directions of the Division Bench passed in M.Arun Prasad's case (supra) and the observations in Mahiboob Sab's case (supra)."
In its order in the case of M Arun, W.P.No.58931/2016 (S-KAT) dated 02.03.2017 the bench had deprecated the practice of lifting an officer from one post but not clarifying about his next posting. "He is expected to approach before the concerned Department for appropriate posting and another Officer vice him is already posted. This practice would keep the Officer in lurch..."
The government circular dated 27.03.2017 stipulates that reasons must be recorded in writing for not showing posting to any Government Servant and such reasons should be "compelling administrative reasons like non availability of post due to abolishment/ up-gradation/ down-gradation, shifting in lieu of suspension, requirement of Government Servant to perform urgent confidential work in a post, unsuitability or inefficiency to work in the existing vacancy or for being utilised against temporary and leave vacancy etc., which are only illustrative but not exhaustive". Procedure is also shown to review orders of transfer by the Head of the Department where a person displaced is not shown posting recording reasons in writing.
The petitioner by the impugned order was asked to report to the competent authority for obtaining an order for posting. Only after six months, that is only on 20.07.2022, after the order during the pendency of the present proceedings, the petitioner was given an order of posting at the Town Municipal Council, Ullal (for vacant post).
To which the bench said,
"In the present case, none of the procedures are followed. Despite the observations by the Division Bench of this Court in M.Arun Prasad's case (supra) and also the Government Circulars referred to above, time and again orders of transfer are being passed without showing places for posting."
Further it observed,
"In the present case, as stated earlier, there was no vacant place while considering the representation of the respondent No.6 to be transferred and posted in the place of the petitioner. It is also noticed that the case of respondent No.6 is on the basis of the letter of the Member of the Legislative Assembly. Nevertheless, procedure requires to be followed."
Finally it held,
"Accordingly, on two grounds i.e., not showing an order of posting for a period of more than six [6] months and on the ground that no transfer must be made except to a vacant post after the period of general transfers, while noticing that the transfer is made in December 2021 as noticed in the proceedings of transfer, the petition is allowed. The impugned order dated 23.12.2021 at Annexure - A is set aside. The parties are directed to be placed in the position prior to the impugned order."
Case Title: MURTHY v. THE STATE OF KARNATAKA
Case No: WRIT PETITION NO. 14860 OF 2022
Date of Order: 18TH DAY OF AUGUST, 2022
Appearance: Advocate PAVANA CHANDRA SHETTY H for petitioner; AGA M.C.NAGASHREE, FOR R1 TO R4; Advocate H.V.MANJUNATH, FOR C/R5 AND R6
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11/05/2022 Shri Vijay M. Adwani, Advocate with Shri Manish Upadhyay and
Shri A.M. Sachwani, counsel for the petitioner.
Shri Ramakant Mishra, Asst. Solicitor General for India/respondents.
Shri Ramakant Mishra, A.S.G. accepts notice for respondents. He
prays for and is granted three weeks time to file reply to writ petition as well
as application for grant of interim relief.
Also heard on IA No.2, which is an application for grant of interim relief.
Learned counsel for the petitioner would submit that pursuant to arrest
made by Directorate of Revenue Intelligence (DRI) on 01.05.2021 of two
persons at Railway Station- Raipur, DRI further searched the house of
petitioner on the same date and have seized gold bar, silver ingots and fine
silver and cash amount also amounting to Rs.32 lakhs. Seizure proceedings
was put to challenge by the petitioner before this Court by way of filing writ
petition bearing WPC No.5388 of 2021, which was finally decided vide order
dated 02.03.2022 whereby the notice under Section 110 (2) of the Customs
Act, 1962 (for short “the Act of 1962”) for extending the time for investigation
was quashed and subsequent notices/summons issued to the petitioner
therein have been held to be without any authority of law. It is further
contended that in terms of Section 110 (2) of the Act of 1962, if proceedings
have not been concluded within prescribed period, the investigation agency
have to mandatorily return back the goods which were taken into possession
from the petitioner but that was not done till date. Order dated 02.03.2022
passed by the learned Single Judge was put to challenge by respondent-
Department along with the application for grant of interim relief but till date, no
interim relief has been granted in their favour and the order dated 02.03.2022
is still in existence and force. It is contended that after passing of order dated
02.03.2022, as on the date, proceedings of search and seizure was quashed,
no further proceedings under under Section 124 of the Act of 1962 which is
the proceedings for confiscation of good seized can be initiated. He submits
that pending consideration of this writ petition, awaiting reply of respondents,
further proceedings pursuant to the notice under Section 124 of the Act of
1962 may be stayed.
Shri Ramakant Mishra, learned ASG for the respondents would submit
that though there is order in favour of petitioner in WPC No.5388 of 2021 but
the said order is under challenge before the Division Bench in Writ Appeal
No.211 of 2022 and is pending consideration. Hence, proceedings have not
attained finality. He also contended that the amendment has been brought
into the Act of 1962 by virtue of Notification dated 31.03.2022 and in that
amended provision, there is no mention of Proper Officer and the amendment
has been made applicable with retrospective effect. Hence the interim relief
as sought for by the petitioner may not be granted at this stage.
Taking into consideration the facts and circumstances of the case,
taking into consideration the submission made by learned counsel for the
petitioner based on order dated 02.03.2022 passed by the High Court in WPC
No.5388 of 2021 whereby the notice under Section 110 (2) of the Act of 1962
was held to be without any authority of law, the notice was quashed, it is
directed that respondents shall not proceed any further pursuant to notice
dated 23.04.2022 (Annexure P-1) issued under Section 124 of the Act of
1962, till the next date of hearing.
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The Chhattisgarh High Court bench of Justice Parth Prateem Sahu has quashed the show cause notice which was issued by the DRI and stayed the proceedings.
The petitioner/assessee submitted that pursuant to the arrest made by DRI of two persons at Railway Station-Raipur. The DRI searched the house of the petitioner on the same date and seized gold bars, silver ingots, fine silver, and cash amounts also amounting to Rs. 32 lakhs.
The petitioner has challenged the seizure proceedings before the high court. The High Court quashed the notice under Section 110 (2) of the Customs Act, 1962 for extending the time for investigation. Subsequent notices/summons issued to the petitioner were also without any authority of law.
The petitioners contended that in terms of Section 110 (2) of the Customs Act Act of 1962, if proceedings have not been concluded within the prescribed period, the investigation agency has to mandatorily return back the goods which were taken into possession by the petitioner, but that has not been done till date.
The order of the High Court was challenged by the department along with the application for grant of interim relief, but till date, no interim relief has been granted in their favour and the order dated 02.03.2022 is still in existence and in force.
The petitioner contended that after the passing of an order dated 02.03.2022, as on the date, proceedings of search and seizure were quashed and no further proceedings under Section 124 of the Customs Act, 1962, which is the proceedings for confiscation of goods seized, could be initiated. Further proceedings pursuant to the notice were stayed while the writ petition was being considered and a response from the department was awaited.
The department contended that though there was an order in favour of the petitioner, the order was under challenge before the Division Bench in Writ Appeal No.211 of 2022 and was pending consideration. Hence, proceedings have not attained finality. The amendment has been brought into the Customs Act by virtue of a Notification dated 31.03.2022. In the amended provision, there was no mention of the proper officer and the amendment has been made applicable with retrospective effect. Hence, the interim relief sought for by the petitioner may not be granted.
"Taking into consideration the facts and circumstances of the case, taking into consideration the submission made by counsel for the petitioner based on order dated 02.03.2022 passed by the High Court in WPC No.5388 of 2021 whereby the notice under Section 110 (2) of the Act of 1962 was held to be without any authority of law, the notice was quashed, itis directed that respondents shall not proceed any further pursuant to notice dated 23.04.2022 issued under Section 124 of the Act of 1962, till the next date of hearing," the court said.
Case Title: Vijay Baid Versus Union Of India
Dated: 11/05/2022
Counsel For Petitioner: Advocate Vijay M. Adwani
Counsel For Respondent: Asst. Solicitor General for India Ramakant Mishra
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This appeal is filed by the original petitioner to challenge the
judgment of the learned Single Judge dated 02.12.2021. The
petitioner was selected for the post of PTI Grade-II by the State
Government. She was appointed in Jhunjhunu district. It appears
that the select list was reshuffled on account of litigation and
consequent Court orders. The State Government thereupon
issued a circular dated 10.06.2021 to give effect to the reshuffling
of the select list. Paragraph 2 of the circular specifies that only
those candidates, who on account of such reshuffle are being
included in the select list, would be called for counselling for
allotment of appropriate district. This counselling would not be
necessary for the PTI already appointed. Some aggrieved persons
filed Civil Writ Petition No.7730/2021. The learned Single Judge
disposed of the said petition on 10.08.2021 permitting those
petitioners to make a representation to the authorities. Reference
was made to a decision rendered at Jaipur Bench in the case of
Reena vs. State of Rajasthan and others (S.B. Civil Writ
Petition No.7617/2020, decided on 16.10.2020), in which
referring to the decision of this Court in the case of Nirmla Jat
vs. State of Rajasthan (S.B. Civil Writ Petition
No.5753/2020, decided on 14.9.2020) was made.
The authorities thereupon issued a fresh circular dated
12.10.2021 in which it was decided that those representations in
which the request for movement within district are made, may be
considered. However, the request for inter-district transfers would
not be accepted. The petitioner thereupon approached the High
Court by filing Civil Writ Petition No.16316/2021 and contended
that less meritorious persons have been accommodated in Alwar
district, whereas she is sent to Jhunjhunu. The learned Single
Judge dismissed the writ petition making following observations:
“A perusal of the order passed in the case of
Sangeeta Patidar (supra) would reveal that said petitions
were decided while referring to order passed in Reena vs.
State of Rajasthan & Ors. : S.B.C.W.P. No.7617/2020
decided on 16.10.2020 at Jaipur Bench. The Bench at
Jaipur in the case of Reena (supra) referred to paragraph
35 of the judgment in the case of Nirmla Jat (supra) and
directed the respondents to follow the same directions.
This Court in the case of Nirmla Jat (supra) had, inter
“34. There is yet another reason, for which this
Court does not deem it appropriate to direct the
respondents to undertake the exercise afresh.
Seniority of the teachers is reckoned Division Wise.
Now all the teachers have been allotted the division
according to their merit cum preference. When it
comes to posting, it has to be noted that they are
subject to intra division transfers, hence, posting at
a particular place cannot be claimed as a matter of
right. Posting is only a matter of convenience, which
can be addressed/redressed at a later point of time.
35. Hence, considering the submission of the
State, as noticed in para No. 21 above and in view
of the common consensus and alternative oral
submission of all the learned counsel for the
respective petitioners, this Court deems it
appropriate and in the interest of all the concerned,
particularly the candidates (who are not before this
Court) to dispose of all the writ petitions with
(i) The State shall publish latest subject-wise and
category-wise vacant position of each division on its
website, within a period of 15 days from today.
(ii) All the petitioners herein may submit
representations to the Director, giving choice(s) qua
the vacant positions [out of their division(s)], so
published by the State. Representation(s) be
furnished within a period of four weeks from
publication of such list.
(iii) The petitioners shall also be permitted to
request for mutual transfer within their division.
(iv) The Director/Joint Director shall decide
petitioners’ representations within a period of four
weeks thereafter, while trying to accommodate the
petitioners in accordance with the preference given
by them, of course, if the relevant law/guidelines so
permit.
(v) In case, petitioners’ representations are
rejected, the respondents shall pass a reasoned
order under intimation to the concerned.
(vi) The petitioners will be free to take up their
remedies against such orders, in accordance with
law.”
It may be noticed here that the Bench in the case of
Nirmla Jat (supra) observed that seniority of the Teachers
is reckoned Division Wise, which in the case of P.T.I.
Grade-III, which is subject matter of the present writ
petitions, is reckoned District Wise. If the directions given
in the case of Nirmla Jat (supra) are read mutatis
mutandis qua the present case, instead of ‘Division’,
‘District’ will have to be read and consequently, the
directions as given in the case of Nirmla Jat (supra)
(i) The State shall publish latest subject-wise and
category-wise vacant position of each District on its
website, within a period of 15 days from today.
(ii) All the petitioners herein may submit representations
to the Director, giving choice(s) qua the vacant positions
[out of their district(s)], so published by the State.
Representation(s) be furnished within a period of four
weeks from publication of such list.
(iii) The petitioners shall also be permitted to request for
mutual transfer within their district.
The respondents in the communication dated
12.10.2021, as quoted herein before, have required that
in case of Intra-District transfer within newly allotted
districts, if representation has been made, the same may
be disposed of as per the merit of the candidate(s) and
qua the representations seeking Inter-District Transfers,
it was directed that the same be dismissed.
The communication dated 12.10.2021 is in
consonance with the directions given in the case of
Nirmla Jat (supra), when the same is read in context of
the district, wherein the Court has specifically indicated
that the petitioners may submit representation giving
choice of any vacant position (out of their district) so
published by the State.
Once in the case of Nirmla Jat (supra), the choice
was restricted to Division, wherein the cadre was Division
Wise, the stipulation made in the communication dated
12.10.2021 restricting the choice within the district, in
the present case, where the cadre is District Wise, the
same cannot be faulted on any count.
In view of above fact situation, no case for
interference in the order dated 12.10.2021 is made out.
The petitions have no substance, they are therefore,
dismissed.
In case the representations made by the petitioners
are still pending, the same may be decided expeditiously
by the respondents, preferably within a period of three
weeks in accordance with communication dated
The petitioners, who have not made any
representation in consonance with communication dated
12.10.2021, they may make representation within a
period of ten days from today i.e. by 13.12.2021 and the
respondents are directed to pass appropriate orders
thereon by 24.12.2021.”
The petitioner has challenged the said judgment in the
present appeal.
Having heard learned counsel for the appellant and having
perused the documents on record, we see no reason to interfere.
The learned Single Judge noticed that in the case of Nirmala Jat
(supra) the transfer liability of the cadre of teachers was reckoned
division-wise. Accordingly, the observations were made for the
movement of teachers within division. In the present case, we are
concerned with the post of PTI Grade-III where the cadre is
maintained district-wise. The learned Single Judge was of the
opinion that the observations and directions of the Court in the
case of Nirmala Jat (supra) therefore have to be suitably modified
for adoption in the present case. Thus, the petitioner did not have
choice of inter-district transfer and the communication of the
authority dated 12.10.2021 not accepting any such representation
for inter-district transfer was correct.
The question of appointment or absorption in particular
district, division or zone at the time of recruitment is essentially
for the convenience of the selected candidate but this always is
subject to administrative exigencies. No person has a vested right
to be posted at a particular place. The selections and
recruitments must attain finality. Posting orders which are
consequential to such selection and recruitment also must not be
allowed to be raised after a reasonable period of time. Accepting
such request for inter-district transfer can lead to chain reaction
and at times considerable administrative difficulties.
Nothing stated in this order and that of the learned Single
Judge would come in the way of the petitioner in seeking inter-
district transfer if the Government rules and regulations recognize
any such policy.
Under the circumstances, the appeal is dismissed.
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The Rajasthan High Court has ruled that no person has a vested right to be posted at a particular place. The court further observed that accepting a request for inter-district transfer of a recruit can lead to chain reaction and at times considerable administrative difficulties. Chief Justice Akil Kureshi and Justice Madan Gopal Vyas, ordered, "The question of appointment...
The Rajasthan High Court has ruled that no person has a vested right to be posted at a particular place. The court further observed that accepting a request for inter-district transfer of a recruit can lead to chain reaction and at times considerable administrative difficulties.
Chief Justice Akil Kureshi and Justice Madan Gopal Vyas, ordered,
"The question of appointment or absorption in particular district, division or zone at the time of recruitment is essentially for the convenience of the selected candidate but this always is subject to administrative exigencies. No person has a vested right to be posted at a particular place. The selections and recruitments must attain finality."
The development ensued in a writ appeal filed by a PTI Grade-III recruit, seeking posting at Alwar instead of Jhunjhunu.
The petitioner had argued that less meritorious persons have been accommodated in Alwar district, whereas she is sent to Jhunjhunu. The Single Judge had dismissed the writ petition.
In appeal, the court noted that the selections and recruitments must attain finality. It added that posting orders which are consequential to such selection and recruitment also must not be allowed to be raised after a reasonable period of time.
Reliance was placed on the case of Nirmla Jat vs. State of Rajasthan [S.B. Civil Writ Petition No.5753/2020] in which seniority of Teachers was reckoned Division Wise.
The court observed that the cadre is maintained district-wise for the post of PTI Grade-III. The court also noted that the learned Single Judge was of the opinion that the observations and directions of the Court in the case of Nirmla Jat (supra) have to be suitably modified for adoption in the present case. Thus, the petitioner did not have a choice of inter-district transfer and the communication of the authority dated 12.10.2021 not accepting any such representation for inter-district transfer was correct, added the court.
The bench further ruled,
"Nothing stated in this order and that of the learned Single Judge would come in the way of the petitioner in seeking interdistrict transfer if the Government rules and regulations recognize any such policy. Under the circumstances, the appeal is dismissed."
Facts
Essentially, The petitioner was selected for the post of PTI Grade-II and was appointed in Jhunjhunu district. It appears that the select list was reshuffled on account of litigation and consequent Court orders. The State Government thereupon issued a circular, which specified that only those candidates, who on account of the reshuffle are being included in the select list, would be called for counselling for allotment of appropriate district. This counselling would not be necessary for the PTI already appointed. Some aggrieved persons filed Civil Writ Petition No.7730/2021. The learned Single Judge disposed of the said petition on 10.08.2021 permitting those petitioners to make a representation to the authorities.
The authorities thereupon decided that those representations in which the request for movement within the district are made, may be considered. However, the request for inter-district transfers would not be accepted. The petitioner thereupon approached the High Court, which dismissed the petition. The petitioner had challenged the said judgment in the present appeal.
Adv. Vikram Singh Bhati appeared for the appellant.
Case Title: Soniya Burdak v. State of Rajasthan
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1 The appellants are convicted for the offence punishable under
section 302 of the Indian Penal Code and sentenced to suffer Life
Imprisonment and to pay fine of Rs. 10,000/- each in default to suffer R.I. for
six months. The appellants are further convicted for the offence punishable
under section 201 of the Indian Penal Code and sentenced to suffer R.I. for 5
years and to pay fine of Rs. 5,000/- each in default to suffer R.I. for 3
months, by the Additional Sessions Judge, Vasai vide Judgment and Order
dated 16th February, 2018 in Sessions Case No. 76 of 2014. Hence, this
2 Such of the facts necessary for the decision of this appeal are as
(i) That on 4/1/2014 at about 7.45 a.m. Joseph Rodrigues had been
to his wadi (a small piece of agricultural land) for giving water to Banana
trees through water pump. Since flow of the water was not proper, he had
been to the water pump and at that time, he had noticed that a dead body was
floating in the well. The backside of the dead body was open from waist to
leg. It was in a plastic gunny bag.
(ii) Joseph Rodrigues (P.W.1) returned home and informed to his
brother about the same. He then called upon the Councillor of the area who
further passed on the information to the police patil. At the instance of the
police patil a fire brigade team alongwith police came to the spot. The dead
body was pulled out of the well by the fire brigade.
(iii) P.W. 7 then reported the matter to the police, on the basis of
which accidental death was registered vide ADR No. 3 of 2014.
(iv) Investigation of the ADR No. 3 of 2014 was given to P.W. 2
Hemantkumar Katkar, PSI of Palghar Police Station. He had carried out
initial steps in investigation. The inquest panchanama was drawn by him,
which is marked at Exh. 25. A coir rope was seized which is marked at
Article B and Article A is the plastic gunny bag. The advance death
certificate was served upon P.W. 2 on the next day. After initial enquiry, P.W.
2 registered Crime No. 1 of 2014 at Palghar Police Station.
(v) In the course of investigation, the Investigating officer recorded
the statement of one Jeris @ Anna Falix Pillai (P.W.8) and Martin Niel
Moris(P.W.9) who had lastly seen the accused with the deceased. One Hitesh
Raut(P.W.11) who was running a pan stall disclosed to the police that he had
seen a mentally ill person standing near his pan shop. On the basis of the
statements of P.W. 8 and P.W. 9, the accused were arrested and charge-
(vi) It was the case of the investigating agency that accused Pravin
had also made an extra judicial confession to P.W. 9.
3 At the trial the prosecution examined as many as 13 witnesses to
bring home the guilt of the accused. However, the entire case of the
prosecution rests on the evidence of P.W. 3 Vinay Muley, a panch for
recovery of the clothes of the deceased at the instance of accused Gautam;
P.W. 4 Dr. Anant Kulkarni who performed the autopsy on the dead body of
the deceased ; P.W. 7 Joseph Rodrigues who set the law into motion; P.W. 8
Jeris Pillai, who saw the deceased in the company of the accused; P.W. 9
Martin Moris to whom extra judicial confession was made and P.W. 12 API
Santosh Barge who conducted investigation and filed charge-sheet.
4 According to P.W. 7 Joseph Rodrigues, he had filed a report
thereby informing the police that when he had been to the well to start the
motor pump, he had noticed that an unidentified dead body was floating in
the well. On the basis of his report, ADR No. 3 of 2014 was registered and
investigation was set in motion. In the cross-examination, he had admitted
that he had not informed the police that upon seeing the dead body in the
well, he had first informed his brother, who called the local councilor and
then on the basis of the information of the police patil, the police had arrived
at the spot. It is categorically stated in the cross-examination that the said
well was a common well and the residents in the wadi used to draw water
from the well turn by turn. That there was no fencing around the wadi and
therefore, trespassers had an easy access to the wadi. According to him,
whenever a thief is apprehended in the wadi, the thief used to be assaulted by
the agriculturists. That the accused were not residents of the wadi and
therefore, he had not seen the accused in the close vicinity of the wadi. That
when he saw the dead body, he had not noticed any injury on the dead body
and therefore, he had presumed that the said person must have had an
accidental fall.
5 P.W. 8 Jeris Pillai has deposed before the court that he is a
resident of Virar Garden. On 31st December, 2013 he was celebrating the
New Year Eve alongwith the accused Pravin, Gautam, Rahul and Raj Martin.
They had enjoyed the party. At about 3 a.m. to 4 a.m. they all dispersed and
went to their respective houses. On 1 st January, 2014 in the morning Raj
Martin approached him and informed him that his cousin Cyril has arranged a
party and that he should join him. P.W. 8 obliged. P.W. 8 was in the
company of Raj Martin till 11 to 11.30 p.m. in Gokul township. In his
presence, Raj received a phone call from Pravin. Pravin asked both of them
to come behind the MM Bar. They reached there by 1 a.m. and saw a
mentally ill person wandering on the road. The said person had dashed
Gautam. They had tried to inquire with the said person but he gave no reply.
Then under the pretext of giving food to the said person, Pravin, Gautam and
Rahul led him to pump house and started assaulting him. The accused then
denuded the said person of his clothes. In the meanwhile, P.W. 8 and Raj
Martin were being invited for the party and therefore, they left. P.W. 8 stayed
in the house of Raj Martin till 3.30 a.m. and went to his own house.
6 On 2nd January, 2014 Pravin and Raj asked P.W. 8 to reach
Chaware wadi at about 8 to 8.15 p.m. When he visited Chaware wadi, he saw
all the three accused were present and at that time, Gautam informed
everybody that the mentally ill person, they encountered in the previous night
was in fact a demon(Khavis). Gautam then disclosed that they had assaulted
the said person on the head, killed him and threw his body in the well situated
behind Sakharambaba Sankul. They were performing some ritual and then
handed over a lemon to P.W. 8 informing him that the said lemon will protect
7 On 4/1/2014 P.W. 8 had seen the fire brigade taking out the dead
body from the well. It is elicited in the cross-examination that P.W. 8 is an
alcoholic. After consuming alcohol he used to consume ganja. Martin was
his good friend and used to consume alcohol with P.W. 8. In a state of
intoxication, his mind used to be out of control. That from 31 st December,
2013 to 4th January, 2014 he had enjoyed parties every day. He has further
admitted that on 1st January, 2014 he returned from Gokul township to Martin
at about 9.30 p.m. and Cyril’s party had started at 9.30 p.m. He was under
the influence of alcohol when he reached MM. Bar at about 1 a.m. They had
again consumed liquor at MM. Bar. The fact that Pravin had called upon Raj
is an omission. In fact, Gautam had told Pravin that the said person is not a
beggar but a thief. That they were aware that there was some tussle between
the said unknown person and a rickshawalla who had asked said unknown
person to get out of the rickshaw and after that the unidentified person had
disappeared from the spot.
8 According to P.W. 8, all the three accused were under the
influence of liquor and therefore, were not in position to walk properly. The
pump house is situated in the wadi and there is no facility of light near the
pump house. That he had accompanied Martin to Bolinj Naka and then they
both returned to the house of Martin. That Martin was in a hurry to reach
home since the family members were calling him persistently. On 2nd January,
2014 he woke up at about 3 p.m. and thereafter, had not visited any of the
places like Sakharababa Sankul and Pump house. In the evening of 2 nd
January, 2014, he found nothing objectionable. It is specifically admitted that
he had not suspected Rahul, Pravin and Gautam as the assailants of the
unknown person as he had not seen any one of them assaulting the said
unknown person. He had not seen the dead body nor the police had called
upon him to see the dead body. There are material omissions in the evidence
of P.W. 8 which go to the root of the matter.
9 P.W.9 Martin Moris was resident of Virar Garden. P.W.9 was a
good friend of accused and used to consume liquor alongwith them in the
premises of pump room which is situated behind the Sakharambaba Sankul.
According to P.W. 9, on 31/12/2013 he had accompanied P.W. 8 to Gokul
township and then they returned home at about 9 p.m. A party was going on.
They joined the party. P.W. 8 Jeris was receiving calls from Pravin
persistently and therefore, they both decided to meet Pravin at Bolinj Naka.
Pravin was not present at the spot but a beggar was wandering here and there.
The said beggar had a bad smell. Pravin asked them to come behind MM
Bar. P.W. 8 and P.W. 9 obliged. He saw all the accused present there. The
beggar had dashed Gautam and the said gesture annoyed Gautam. The
beggar was apprehended by Gautam and Pravin, but he was unable to speak
except uttering the words “Mumbai station”. They suspected him to be a
thief. Pravin caught hold of the beggar whereas Gautam and Rahul gave him
fists and blows. Then they went to pump house. P.W. 8 and P.W. 9 were
asking the accused to release the beggar and not to assault him. Rahul and
Pravin denuded the beggar of his clothes and assaulted him. P.W. 9 received
phone call from his sister and therefore, left the spot. On 2 nd January, 2014
accused Pravin called P.W. 9 at Bolinj Naka and informed him that the said
person was not a human being but a demon and all three of them killed the
said person with a stone. Pravin also informed that the dead body of the said
person was thrown in a well. All the three accused suspected the said person
to be a demon. While handing over lemon, they informed P.W. 9 that the said
spirit could cause harm to him and his family. He has also admitted to be an
alcoholic. That they used to consume drugs together. On 31st December,
2013 the party continued for the whole night and spilt over till 8 a.m. of 1 st
January, 2014. He was a good friend of Pravin and vouched for him as a
good person with a helping nature and no criminal antecedents. He admits
that he has not given description of the said unknown person to the police.
There are material omissions in the evidence of P.W. 9. His evidence that his
friend had threatened him of dire consequences in the eventuality of
disclosing facts to the police is a material omission.
10 P.W.4 Dr. Anand Kulkarni has performed autopsy on the dead
body. His qualification was B.A.M.S.(Bachelllor of Aurvedic Medical
Science). According to him, the injuries were antemortem. On external
examination, he found following injuries on the said dead body.
(i) Contusion size 3 cm. x 1 cm. on chest right side 2 cm. above
nipple, colour black.
(ii) CLW size 5 cm. x 2 cm. x bone deep on right temporal region,
3” above right ear, brain protruding from fracture skull, colour
was black and angles were broad and borders were irregular,
(iii) CLW size 1 cm. x ½ cm. x bone deep, just above injury no.2,
colour was black, angles were broad and borders irregular,
(iv) CLW 1 cm. x 3 mm. X bone deep, just above injury no. 3, colour
was black and angles were broad and borders irregular,
(v) Contusion size 6 cm. x 1 cm. near left shoulder tip, colour was
black.
(vi) Contusion size 1 cm. x 1 cm. on left forearm lateral side
midway, between elbow and wrist, colour was black.
All injuries nos. 1 to 6 were possible due to hard and blunt object within 36
hours to 7 days of examination. Injury nos. 2 , 3 and 4 were grievous
whereas injury nos. 1, 5 and 6 were simple injuries. Injury no. 2, 3 and 4
were sufficient in the ordinary course to cause death. On internal
examination, he found following injuries:
(i) Subcutaneous haematoma 2 cm. x 4 cm. on left temporal region,
(ii) fracture skull, right temporal region 7 cm. x 2 cm. horizontal
below injury No. 2, 3 and 4 described under Col. 17.
(iii) Brain covering were contused below injury No. 2, 3, 4 described
under col. 17 on right temporal region,
(iv) Subdural blackish Haemotoma on right temporal region irregular
sized and shape.
The autopsy was performed alongwith Dr. D. A. Jadhav. But the PM. Notes
were prepared in the handwriting of P.W. 4. The same are proved and
marked at Exh. 43. On 13th January, 2014 police had shown a stone to P.W.
4. It is admitted that injury Nos. 1, 2 and 6 are not possible by the stone,
which was seized in the course of investigation. The dead body was in
swollen condition, but there was no water in the lungs. There were no clothes
on the dead body when the body was sent for post mortem and therefore,
there was no question of dry and wet clothes. According to P.W. 4, after
completion of post-mortem he had handed over the clothes mentioned in
column no. 8 to police. It is clarified that the dead body was wrapped in a
curtain and the said curtain was wet. Column No. 12 and 13 of the
postmortem reports shows as follows :
12. Extent and signs of Whole body swollen and disfigured. Bullae
decomposition, presence formation & ruptured all over body skin flaccid
post-mortem lividity of and detach on pulling tongue protruded outside
buttocks, loins, back and mouth maggots all over body (pupae) ½ cm. long
thighs or any other part. p.m. lividity on back buttocks and scapular
Whether bullae present regions fixed.
13. Features- Whether natural Swollen eyes swollen & closed. Tongue
or swollen, stale of eyes, protruded outside mouth due to decomposition,
position of tongue: nature blood clots present in limb right ear.
of fluid (if any) oozing
The cause of death was “due to intracranial hemorrhage due to head injury.
11 P.W. 12 Santosh Barge, API has deposed before the court the
steps taken by him in the course of investigation. According to him, accused
Pravin Wagh had burnt his bloodstained clothes. Stone was recovered at this
instance. The clothes of the deceased were recovered at the instance of
accused Gautam from the lake. The clothes of the accused Gautam were also
recovered from his house. There were blood stains on the pant below the
knee area. Similarly, there is recovery of clothes of Accused Rahul. He
disclosed that he had thrown the clothes with bloodstains in lake. P.W. 12 has
admitted that no blood stains were seen on the scene of offence. There was
no material to show that the dead body was dragged from pump house to
well. P.W. 12 had admitted that he has not recorded the statement of the
owner of land Joseph Rodrigues, in which the well and pump house were
situated. There was no compound to the well as well as the pump house. The
dead body was not identified. According to him, he did not feel it necessary
to record statement of the owner of the land. There is no investigation besides
the evidence of P.W. 8 and P.W. 9 that the deceased was a beggar nor it had
transpired that the deceased was a thief. But in the course of investigation, it
had transpired that on the day of the incident, an auto rickshaw driver had
teased the deceased but the said auto rickshaw driver could not be tressed.
12 The accused were not subjected to alcoholic examination. There
was no evidence to show that anyone in the locality besides P.W. 8 and P.W.9
had seen the deceased in the locality. In the course of investigation, clothes of
deceased were not shown to eye witnesses for verification. In the
panchanama at Exh. 31, it is specifically mentioned that the clothes were wet
and therefore, the signatures of the panchas will be obtained after the clothes
dried. There is no evidence to show that after seizure, the clothes were sealed.
Some currency notes were recovered in the course of seizure of clothes, but
there is no reference from whom the notes were seized and to whom they
were given. The currency notes are not deposited in the court either. The big
stone which was seized was not sent for chemical analysis. During
investigation, P.W. 12 had opened the seal of stone for the purpose of
showing the same to the medical officer. There is a distance of 50 to 60 ft.
between the pump room near lake and the pump room near the well. But
there were no marks of dragging the dead body nor there was trail of blood.
No liquor bottles were found near any of the pump room. During
investigation, P.W. 12 had not collected the call details records of accused
and witnesses. P.W. 12 had proved the omissions and contradictions in the
evidence of the witnesses. It is categorically admitted by P.W. 12 that in the
present case, there is no eye witness to the murder.
13 The learned Counsel for the appellants has vehemently
submitted that the prosecution has not proved its case beyond reasonable
doubt. It is argued that it is the case of the prosecution that accused had
assaulted the deceased with fists and blows. The medical evidence is
otherwise. The medical evidence shows that the assault was with hard and
blunt object. That the accused had no reason to assault the deceased and that
they have been falsely implicated only because they happened to be alcoholic
and drug addict. However, that by itself is not sufficient to hold that the
accused are the perpetrators of the crime. Hence, they deserve to be
acquitted. It is also urged that the accused have not fled from the scene of
offence. They did not have a guilty mind. That in the eventuality they had
committed an offence, they would have fled from the spot. There are no
independent witnesses. P.W. 8 and P.W. 9 were in the company of the
accused from 31st December, 2013 to 4th January, 2014. They have
suppressed the facts and hence, their evidence does not inspire the confidence
to convict the accused.
14 Learned counsel for the appellants placed reliance upon the
Sahadevan and anr. v.s. State of Tamilnadu1.
“14. It is a settled principle of criminal jurisprudence
that extra-judicial confession is a weak piece of evidence.
Wherever the Court, upon due appreciation of the entire
prosecution evidence, intends to base a conviction on an extra-
judicial confession, it must ensure that the same inspires
confidence and is corroborated by other prosecution evidence.
If, however, the extra- judicial confession suffers from material
discrepancies or inherent improbabilities and does not appear to
be cogent as per the prosecution version, it may be difficult for
the court to base a conviction on such a confession. In such
circumstances, the court would be fully justified in ruling such
evidence out of consideration.
judgments of this Court, it will be appropriate to state the
principles which would make an extra- judicial confession an
admissible piece of evidence capable of forming the basis of
conviction of an accused. These precepts would guide the
judicial mind while dealing with the veracity of cases where the
prosecution heavily relies upon an extra-judicial confession
alleged to have been made by the accused.
i) The extra-judicial confession is a weak evidence by itself.
It has to be examined by the court with greater care and
caution.
ii) It should be made voluntarily and should be truthful.
iii) It should inspire confidence.
iv) An extra-judicial confession attains greater credibility and
evidentiary value, if it is supported by a chain of cogent
circumstances and is further corroborated by other prosecution
evidence.
v) For an extra-judicial confession to be the basis of
conviction, it should not suffer from any material discrepancies
and inherent improbabilities.
vi) Such statement essentially has to be proved like any other
fact and in accordance with law.”
The learned Counsel for the appellants has placed reliance upon the same
judgment to substantiate that the factum of last seen has to be corroborated
and shall not suffer from any and discrepancies as well.
15 Per contra, the learned APP has submitted that P.W. 8 and P.W. 9
are eye witnesses and they had seen the deceased lastly in the company of
the accused.
16 The evidence in the present case is in the nature of the
circumstances of last seen theory and extra judicial confession to P.W. 9. The
prosecution has only relied upon the evidence of P.W. 8 and P.W. 9 who were
under the influence of alcohol throughout that period. P.W. 8 and P.W. 9 were
in the company of the accused when the incident of assault had taken place.
The fact that they had tried to persuade the accused not to assault the
deceased is in the nature of a material omission and the said omission is
proved in accordance with law. P.W. 8 and P.W. 9 were also not in a proper
frame of mind even to understand the events which they have seen. They
have not disclosed anything to police immediately. It is not known as to what
was the material on record to show that the accused and the witnesses were
in each other’s company at the time of incident. It is true that the accused had
no animus or intention to assault the deceased much less to kill him. The
identity of the deceased has not been established. The deceased was also not
apprehended when he was attempting to commit theft. It is the case of the
P.W. 8 and P.W. 9 that the accused had assaulted only with fists and blows.
There is no recovery of weapon. However, according to P.W. 4, the assault
was with a hard and blunt object. The evidence in the nature of extrajudicial
confession is week, since there is no material on record to show that it was a
voluntary disclosure to its fullest extent. The accused were not in their senses
till late in the afternoon of 1st January, 2014 and that they had continued the
party for 4 days after the incident. The dead body was found on 4 th January,
2014 and the condition of dead body shows that the death must have occurred
atleast four days before. P.W. 11 Hitesh Raut has disclosed that he had seen a
mentally ill person standing near pan shop on 1/1/2014 at about 12 to 12.30
a.m. P.W. 11 has been declared hostile by the prosecution. P.W. 11 was also
not called by the police for identifying the dead body.
17 The prosecution has failed to establish that P.W. 8 and P.W.9 had
seen the deceased in the company of the accused. The only description is that
he was a mentally ill person. But the identity of the person as the deceased
has not been established. The statement of P.W. 8 and P.W. 9 are recorded
after the arrest of the accused. Therefore, again there is no material to show
that it was on the basis of their statement that the accused were arrested.
18 The extrajudicial confession does not inspire confidence as P.W.
9 was in the company of the accused on 31 st December, 2013 as well as on 1 st
January, 2014. There was no reason for the accused to tell P.W. 9 on the eve
of 2nd January, 2014 that they had killed the deceased. Moreover, P.W. 9 had
neither reported it to the police nor he had verified that the body was thrown
in the well. The body was recovered on 4 th January, 2014. The material
infirmities in the evidence of P.W. 8 and P.W. 9 do not inspire the confidence
of the court.
19 “Last seen theory” by itself is not sufficient to prove that the
accused are the authors of the fatal injuries sustained by the deceased. In
fact, the prosecution has to establish the time when the deceased was lastly
seen in the company of the accused and the time of death. Unless there is
proximity in the time of last seen and the time of death, the evidence cannot
be taken into consideration to convict the accused.
20 In view of the above discussion, it can be safely inferred that the
prosecution has failed to establish the guilt of the accused beyond reasonable
doubt. The appellants deserve to be acquitted of all the charges levelled
against them. Hence, following order is passed :
(i) The Criminal Appeal is allowed.
(ii) The conviction and sentence imposed upon the appellants vide
Judgment and Order dated 16th February, 2018 passed by the
learned Additional Sessions Judge, Vasai in Sessions Case No. 76 of
2014 is hereby quashed and set aside. The appellants are acquitted
of all the charges levelled against them.
(iii) The appellant be released forthwith if not required in any other
offence. Fine amount if paid be refunded.
(iv) The Criminal Appeal is disposed of accordingly.
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The Bombay High Court has held that the "last seen theory," whereby the accused is the last person spotted with the victim, is not enough to hold him guilty of the crime in the absence of a correlation with the time of the victim's demise.
The prosecution must establish the time when the deceased was last seen with the accused and the time of death, the court added. "Unless there is proximity in the time of last seen and the time of death, the evidence cannot be taken into consideration to convict the accused."
Observing thus, a division bench of Justices Sadhana Jadhav and Milind Jadhav acquitted a 32-year-old man and a 19-year-old student accused of assaulting and killing a mentally ill man. The man had allegedly bumped into them and was beaten up under the pretext of being given food in 2013.
After the incident, the accused had allegedly told one of their acquaintances that the victim had a "devil" in him and they had disposed of the body in the well.
The High Court set aside the life imprisonment awarded to the appellants for offences under sections 302 and fine of Rs 10,000. The trial court had also convicted them under section 201 (destruction of evidence.)
Facts of the Case
Accused Gautam Pardeshi and Rahul Jadhav were arrested following an investigation into an abandoned nude body found in the local village well on January 1, 2014.
The prosecution examined 13 witnesses to bring home the guilt of the accused. This included a panch witness regarding the alleged recovery of the deceased's clothes from Pardeshi, an eye witness who saw the victim with the accused last and another person to whom a third accused had give an extra-judicial confession.
A witness who allegedly saw them together last said that on the fate full night his friend "Raj" received a call from one Pravin, a friend, who asked them to come behind a bar where a mentally ill person had dashed into accused "Gautam."
"Then under the pretext of giving food to the said person, Pravin, Gautam and Rahul led him to pump house and started assaulting him. The accused then denuded the said person of his clothes," according to the witness.
The next day the accused informed their friends that the mentally ill person was a demon (Khavis), and that he has assaulted him, killed him and threw his body in the well. However, the cross examination revealed that the witness was an alcoholic and was under severe influence of liquor when he was arrested. He also denied saying his friends assaulted the man.
Considering the quantity of alcohol consumed by the "eye witness" the court disbelieved the statement.
The court disbelieved the recovery of clothes as the formal witnesses said they had not seen the accused with the deceased.
"The prosecution has failed to establish that P.W. 8 and P.W.9 had seen the deceased in the company of the accused. The only description is that he was a mentally ill person. But the identity of the person as the deceased Talwalkar has not been established. The statement of P.W. 8 and P.W. 9 are recorded after the arrest of the accused. Therefore, again there is no material to show that it was on the basis of their statement that the accused were arrested," the court held.
Regarding the proximity been the time of death and the last seen theory, the court said, "Last seen theory" by itself is not sufficient to prove that the accused are the authors of the fatal injuries sustained by the deceased. In fact, the prosecution has to establish the time when the deceased was lastly seen in the company of the accused and the time of death."
Case Title : Gautam Kamlakar Pardeshi and anr v The State of Maharashtra
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2. By way of present writ-application under Article 226 of
the Constitution of India the writ-applicant has prayed for he
following reliefs :-
“(a) Be pleased to direct the respondent no. 1 bank release
the charge over the property in question and subsequently be
pleased to direct to handover the original title documents of
the property in question immediately and forthwith.
(b) Pending hearing, admission and final disposal, the
respondent no. 1 bank is required to be RESTRAINED from
taking any coercive actions against the property in question.
(c) To grant any other appropriate and just relief/s;”
3. Brief facts for the adjudication of the present writ-
application are stated thus :-
3.1 It is the case of the writ-applicant that the respondent
No.2 had availed the financial assistance from the respondent
No.1 – Bank and while availing the financial assistance, the
respondent No.2 had mortgaged the property in question in
favour of the respondent No.1 Bank.
3.2 It appears that the respondent No.2 failed to repay the
financial assistance and hence the respondent No.1 Bank
classified the account of the respondent No.2 as Non-
3.3 In view of above, the respondent No.1 Bank was in the
process to sell the mortgaged property i.e. property in question
and, therefore, the writ-applicant approached the respondent
No.1 bank to purchase the property in question for an amount
of Rs.2.50 crores with consent of the respondent No.2.
3.4 The respondent No.1 Bank gave no objection in
purchasing the property for an amount of Rs.2.50 crores. The
respondent No.2 on 21.11.2017 executed an agreement to sale
in favour of the writ-applicant for the property in question.
The writ-applicant deposited the entire amount of Rs.2.50
crores with the respondent No.1 Bank which was accepted by
the respondent No.1 bank and also encashed by the respondent
No.1 Bank in the account of the respondent No.2.
3.5 It appears that though the respondent No.1 bank had
received the entire amount of Rs.2.50 crores from the
purchaser through the respondent No.2, the respondent No.1
Bank declined to issue certificate for releasing the charge over
the property and also did not hand over the original title
documents of the property.
3.6 The writ-applicant addressed several reminders to the
respondent No.1 Bank to release the property in question.
However, the writ-applicant also issued legal notice on
12.9.2019, but the respondent No.1 Bank did not release the
original documents or release the charge over the property
and, therefore, the writ-applicant herein is constrained to
approach this Court by filing the present writ-application.
Submissions on behalf of the writ-applicant :-
4. Mr. S. S. Iyer, the learned advocate appearing for the
writ-applicant submitted that the writ-applicant is neither
borrower nor the guarantor of the loan transaction which has
taken place between the respondents No.1 and 2 and the writ-
applicant is not concerned with the proceedings initiated by
the respondent No.1 Bank against the respondent No.2 for
recovery of any amount due and payable by the respondent
4.1 Mr. Iyer, the learned advocate submitted that the
respondent No.1 Bank had given no objection for sale of the
property in question to the writ-applicant for an amount of
Rs.2.50 crores by communication dated 20.11.2017 and assured
the release of property upon receipt of the aforesaid amount
and, therefore, it is now not open for the respondent No.1
Bank in refraining from releasing the property from the charge.
4.2 Mr. Iyer, the learned advocate placed reliance on the
decision dated 26.11.2018 in the Special Civil Application
No.13890 of 2017 reported in (2020) 1 GLH 8.
Relying on the aforesaid decision Mr. Iyer, the learned
advocate submitted that said issue is no longer res integra and
that the prayers as prayed for by the writ-applicant in the
present writ-application be allowed.
Submissions on behalf of the respondent No.1 – Bank :-
5. Mr. Vishwas K. Shah, the learned advocate appearing for
the respondent No.1 Bank submitted that the Bank is not in a
position to release the charge on the aforesaid property as per
the banking norms for releasing the mortgaged property. All
direct/indirect liability should be closed and the in the case on
hand the proprietor of the respondent No.2 i.e. Shankar
Ramkumar Mundra had given guarantee in another account
known as M/s. Jay Ganesh Roadlines which is also NPA and
the said liability is outstanding. Mr. Shah, the learned
advocate submitted that in view of above there is indirect
liability of the respondent No.2 Vinayak Fabrics to the tune of
Rs.85.34 lacs. The writ-applicant therefore cannot be absolved
from the aforesaid charge.
6. It is apposite to refer to the law as laid down by this
Court in the decision dated 26.11.2018 rendered in the
Special Civil Application No.13890 of 2017, paragraphs 48 to
“48. The case of the respondent Bank as it emerges from the
materials on record, more particularly, the reply of the Bank
to the notice issued by the writ-applicants is that they have a
right to retain the title deeds of the property delivered to them
in the normal course of business transaction by exercising the
general lien under Section 171 of the Act and, therefore, they
are bound to retain the same till the liability in the other
account, i.e. M/s.Radheshyam Fibres Private Limited, where
the writ-applicant nos.2 and 3 are guarantors, is discharged.
49. In the course of hearing of this matter, the decision of the
Supreme Court in the case of Syndicate Bank v. Vijaya Kumar
and others, reported in 1992(2) SCC 331 was also looked into.
50. As noticed above, Section 171 of the Act states that the
bankers like the respondent Bank, in the absence of a contract
to the contrary, retain as security for a general balance
account, any goods bailed to them. Therefore, what is required
to be seen in the instant case is, whether there is any contract
to the contrary, which prevents the bank from exercising their
general lien and as to whether any goods have been bailed to
them. It cannot be disputed that the title deeds in question
were not bailed to the Bank by the writ-applicants at any
point of time. Further, indisputably, the property in question
of which the title deeds are in possession of the Bank was
offered by the writ-applicants to cover their liability in respect
of the loans which they had borrowed in the account of
M/s.Radheshyam Spinning Mill Private Limited. There is
nothing on record to indicate that the writ-applicants herein
had given any authorization to the Bank to hold the title deeds
of the mortgaged property given to secure the loan transaction
for M/s. Radheshyam Spinning Mill Private Limited for the
purpose of any other loan availed in any other branch by M/s.
Radheshyam Fibres Private Limited, in which the writ-applicant
nos.2 and 3 stood as guarantors. Thus, the issue boils down to
the question as to whether there is any contract to the
contrary, which prevents the Bank from exercising its general
lien under Section 171 of the Act.
51. In Chitty on Contracts, 29th Edition (2004) - Volume-II,
Page 496 on Banker's Lien, it is stated as follows :
".....The most frequent example of circumstances
inconsistent with the general lien is in the case of a
deposit expressed to cover an advance for a specified
purpose. However, once the original purpose has been
fulfilled by repayment of the specified advance, if a
customer knowingly permits the banker to retain the
security, a general lien may ultimately be implied and its
protection then claimed in respect of other advances."
52. In the case on hand, the writ-applicants have admittedly
deposited the title deeds of the property to secure a loan
transaction availed in respect of M/s.Radheshyam Spinning Mill
Private Limited. This fact is apparent from the reply of the
Bank itself which has been referred to in the earlier part of
the judgment. In such circumstances, I have no hesitation to
hold that this contract/mortgage had been created by the
writapplicants for a specific purpose and for a specific loan
and the contract was self-contained and the terms and
conditions were binding upon both, the borrowers as well as
the Bank. To put it in other words, the deposit of title deeds,
by which the mortgage was created by the writ-applicants, was
for a specific purpose to cover an advance for a specific loan.
When such is the situation, the borrower, having deposited the
title deeds in order to secure a specific transaction, the Bank
cannot take a stance that they could hold the title deeds for a
balance due in a different loan amount, i.e. with respect of M/
s. Radheshyam Fibres Private Limited, where the writ-applicant
nos.2 and 3 may be guarantors. Further, the language of
Section 171 of the Act is explicit to the fact that the bankers
are entitled to retain as a security for a 'general balance
account'. Indisputably, it is not the case of the respondent
Bank that the amount which is now said to be due on account
of the borrowings of M/s.Radheshyam Fibres Private Limited is
a general balance account of the writ-applicants.”
6.1 The aforesaid judgment was carried in Appeal which
came to be confirmed by the Hon’ble Division Bench and the
same is reported in (2020) 1 GLH 8, para-39 reads thus :-
“39. Thus, for all the reasons recorded above, we do not
find any infirmity in the order of the learned Single Judge
directing the appellant Bank to return the title-deeds forthwith
and also to discharge the charge recorded in the records of the
Registrar of Companies. The appeal lacks merit and is
accordingly dismissed. Consequently, Civil Application No.1 of
2019 stands disposed of.”
6.2 In the case of Pravin Cotton Pvt. Ltd., vs. Branch
12 to 15 reads thus :-
“12. Having considered the submissions made by the learned
counsel for the respective parties, what is evident is that the
letter of sanction dated 1.10.2015 was in the context of the
petitioner Company to the Cash Credit Hypothecation
whereby certain properties were agreed to be mortgaged by
the Company i.e. Parvin Cotton Pvt. Ltd. and the details of
the securities have been mentioned in the sanctioned letter at
page No.33. List shows the properties of Parvin Cotton Pvt.
Ltd. and, therefore, the stand of the Bank that they are not
willing to release the properties of Parvin Cotton Pvt. Ltd.
itself is not proper. What is evident from the record is that
the property is mortgaged by two separate corporates i.e.
13. I am inclined to accept the submission of Mr.Puj as far
as the contention of objecting to the release of such dues on
the ground of having sanctioned Letter of Guarantee of
General lien and General Undertaking at page No.118. Such
undertaking was given by the Directors of Parvin Exim Pvt.
Ltd. at page No.118 and though they may be the Directors of
the Company, one cannot lose sight of the fact that what
binds Parvin Exim Pvt. Ltd., would not bind Parvin Cotton
Pvt. Ltd. I am supported by the view taken by this Court in
the case of Radheshyam Spinning Mill Pvt. Ltd. (Supra) which
has extensively considered Section 171 of the Contract Act
and relied on a Division Bench Judgment and categorically
considered the case on similar facts and the prayers made in
the context of facts therein and directed the Bank to release
the title deeds of the mortgaged property pertaining to a
legal entity namely; one M/s.Radheshyam Spinning Mill Pvt.
Ltd. Facts on hand would also indicate similar case because
there were common Directors / Promoters, and that the
properties by virtue of the Equitable Mortgage was made of
the petitioner company, the Bank cannot refuse to release
mortgage deeds of the properties belonging to Parvin Cotton
Pvt. Ltd. merely because some of the Directors / Promoters
are also part of Parvin Exim Pvt. Ltd.
14. Pending the petition, the petitioner Company has filed
an undertaking dated 21.1.2019 stating that they are willing
to clear the outstanding dues if the Court gives a direction to
the Bank to return the documents in respect of the properties
belonging to the petitioner which are enlisted in the
sanctioned letter dated 1.10.2015. In fact, Mr.Puj has pointed
out that in order to show bonafide of their will to stand by
the proposal on 20.9.2019, the petitioner company has
already deposited an amount of Rs.50,00,000/- (Rupees fifty
lacs only) with the Bank.
15. Considering the request made by the petitioner for
release of the title deeds of the documents in respect to the
properties belonging to the petitioner, it is directed that in
the event, the petitioner presents before the Bank buyers of
the properties which they have offered for sale to which the
Bank responded on 19.3.2018 and once the buyer deposits the
entire outstanding dues of the petitioner by way of the sale
consideration of such properties, the Bank shall release the
documents in respect of such properties within a period of
two weeks thereafter and shall also give `No Objection
Certificate' to that effect. Thereby, the petition is allowed in
terms of paragraph Nos.8(A) and 8(B). Rule is made absolute
to the aforesaid extent.”
7. The communication by the respondent No.1 Bank dated
20.11.2017 to the writ-applicant herein is germane for
adjudication of the present writ-application which reads thus :-
Sub : Sale of property at C-303/304, Sree Kuberji TextiIe Park,
Property above is under mortgage to our Bank created by
M/S. Vinayak Fabrics for the facilities extended to them.
However, account has become process of selling the properties
mortgaged to us.
We have no objection to your buying the above property at
Rse 2.50 Crore and you may remit tv proceeds directly to the
borrower's account (Vinayak Fabrics ) and on receipt of Rs,
2,50 Crore (Rs. Two Crore and Fifty Lakhs), we wilt release
the above property from our charge.
Pursuant to the aforesaid communication the writ-
applicant deposited the entire amount of Rs.2.50 crores to the
respondent No.1 Bank through the respondent No.2 which has
been accepted by the respondent No.1 Bank and also encashed
by the bank in the account of the respondent No.2.
8. In view of this Court, it is not open for the respondent
No.1 Bank to deny the writ-applicant herein, the title deed, no
objection certificate/no due certificate and the sale deed
executed in respect of the subject property in terms of the
aforesaid letter dated 20.11.2017 issued by the respondent No.1
Bank to sell the property to the writ-applicant on receipt of
the consideration of Rs.2.50 crores. It is not open for the Bank
to fasten indirect liability of the respondent No.2 – Vinayak
Fabrics to the the respondent No.1 Bank in respect of loan
advanced to M/s. Jay Ganesh Roadlines wherein respondent
No.2 – Vinayak Fabrics is a guarantor. The respondent Bank is
bound by the contractual agreement between the writ-applicant
and the respondent Bank. It is not open for the Bank to assert
that unless and until the total dues of the Bank which are due
and payable by the alleged liability of M/s. Jay Ganesh
Roadlines in favour of the respondent No.1 Bank are realized.
The writ-applicant be denied the release of the title deed, no
objection certificate/no due certificate with respect to the
subject property.
9. The title deed of the immovable property purchased by
the writ-applicant was not mortgaged as collateral/primary
security for the purpose of loan granted by the respondent
No.1 Bank to M/s. Jay Ganesh Roadlines wherein respondent
No.2 Vinayak Fabrics is a guarantor. Further the language of
Section 171 of the Contract Act is explicit to the fact that the
bankers are entitled to retain security only for general balance
account. Undisputably there is no charge over the immovable
property in question. Undisputably there is no charge on the
immovable property in question in respect of alleged liability
of M/s. Jay Ganesh Roadlines in favour of the respondent No.1
Bank, therefore in view of above it is not open for the
respondent No.1 Bank to deny the contractual commitment of
issuing no objection certificate/no due certificate and release of
title deeds of the property and the writ-applicant having made
full and final payment and the Bank having accepted the same
as per the letter dated 20.11.2017, the secured assets has
already been sold by the secured creditor i.e. respondent Bank
with concurrence of the borrowers to the writ-applicant.
10. In view of above an equitable mortgage created by
Vinayak Fabrics in respect of alleged loan advanced to M/s.
Jay Ganesh Roadlines, the writ-applicant cannot be denied the
prayers as prayed for having fulfilled the entire obligation in
accordance with the communication dated 20.11.2017 as
referred above. No subsisted liability can be said to be
continued against the writ-applicant herein.
11. The respondent No.1 bank is directed to release the
charge over the property in question and is further directed to
hand over the original title documents of the property in
question forthwith latest within a period of two weeks from
the receipt of this order.
12. For the foregoing reasons the present writ-application
succeeds and the same is allowed. Rule is made absolute to
the aforesaid extent.
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The Gujarat High Court has held that once the Bank agrees to sell a property mortgaged with it by a loan defaulter and a third party pays full consideration for purchase of said property after entering into a valid agreement with the Bank, the latter cannot turn back and refuse the title deed, no objection certificate/no due certificate.Justice Vaibhavi Nanavati thus directed...
The Gujarat High Court has held that once the Bank agrees to sell a property mortgaged with it by a loan defaulter and a third party pays full consideration for purchase of said property after entering into a valid agreement with the Bank, the latter cannot turn back and refuse the title deed, no objection certificate/no due certificate.
Justice Vaibhavi Nanavati thus directed the Respondent, Syndicate bank, to release the charge over the property in question and hand over the original title documents of the property to the Applicant (purchaser) within two weeks.
The Bench observed that the Applicant had deposited the entire amount of Rs. 2.5 crores to the bank through Respondent No. 2 (loan defaulter) which had been accepted by the Respondent No. 1 Bank and encashed, as well.
"It is not open for the Bank to fasten indirect liability of the respondent No.2 – Vinayak Fabrics to the the respondent No.1 Bank in respect of loan advanced to M/s. Jay Ganesh Roadlines wherein respondent No.2 – Vinayak Fabrics is a guarantor. The respondent Bank is bound by the contractual agreement between the writ-applicant and the respondent Bank. It is not open for the Bank to assert that unless and until the total dues of the Bank which are due and payable by the alleged liability of M/s. Jay Ganesh Roadlines in favour of the respondent No.1 Bank are realized. The writ-applicant be denied the release of the title deed, no objection certificate/no due certificate with respect to the subject property," it observed.
Respondent No. 2 had availed financial assistance from Respondent No. 1 Bank and while availing assistance, Respondent No. 2 had mortgaged the property in question in favour of the Bank. Failure to repay the loan led the Bank to classify the account of Respondent No. 2 as a Non-Performing Asset.
Accordingly, the Bank proceeded to sell the mortgaged property to the Applicant for INR 2.5 crores with the consent of Respondent No. 2
The Bench noted that though the Bank had received the entire amount through Respondent No.2, the Bank refused to issue a certificate for releasing the charge over the property and did not hand over the title despite several reminders by the Applicant.
The Applicant primarily contested that the Bank had given no-objection for sale of the property vide a 2017 communication. Therefore, it was not open for the Respondent Bank to refrain from releasing the property.
Per contra, the Respondent Bank contested that it was not in a position to release the charge on the property as per banking norms. It submitted that all direct/indirect liability should be closed. In the instant case, Respondent No. 2 had given guarantee in another account which was also an NPA. Therefore, that liability was outstanding.
Justice Nanavati placed reliance on the law laid down by the High Court in SCA No. 13890 of 2017:
"To put it in other words, the deposit of title deeds,by which the mortgage was created by the writ-applicants, was for a specific purpose to cover an advance for a specific loan. When such is the situation, the borrower, having deposited the title deeds in order to secure a specific transaction, the Bank cannot take a stance that they could hold the title deeds for a balance due in a different loan amount, i.e. with respect of M/s. Radheshyam Fibres Private Limited, where the writ-applicant nos.2 and 3 may be guarantors. Further, the language of Section 171 of the Contract Act is explicit to the fact that the bankers are entitled to retain as a security for a 'general balance account'."
Justice Nanavati also observed that the aforesaid judgement was confirmed by the Division Bench of the High Court. Further reference was also made to Pravin Cotton Pvt. Ltd., vs. Branch Manager, Dena Bank, 2019 SCC OnLine Guj. 4201 to reach the same conclusion.
The High Court also perused the communication by Respondent No. 1 Bank to conclude that the entire amount had been deposited in favour of the Bank which was encashed, as well. Therefore, the Bank was bound by the contractual agreement between the Applicant and the Bank.
Accordingly, it was held that no subsisted liability could be said to be continued against the Applicant.
Case No.: C/SCA/18997/2019
Case Title: M/S MAHALAXMI TEXTILES A PROPRIETORSHIP FIRM THORUGH ITS PRORPRIETOR BHARTIBEN MAHESHBHAI CHEVLI v/s SYNDICATE BANK SURAT MAIN BRANCH
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This Criminal Petition under Section 482 of the Code of
Criminal Procedure, 1973 (for short “Cr.P.C.”) is filed seeking
quash of charge sheet in C.C.No.973 of 2020 on the file of the
Heard learned counsel for the petitioner and learned
Additional Public Prosecutor for the State.
The petitioner is A-4 in the above C.C.No.973 of 2020 on the
file of the learned VI Additional Junior Civil Judge, Guntur. He has
been facing prosecution for the offences punishable under Section
498A r/w 34 IPC and under Sections 3 and 4 of the Dowry
Learned counsel for the petitioner would submit that it is
stated in the F.I.R that the petitioner, who is A-4, only harassed
the de facto complainant by using harsh language against her. He
would submit that, however, it is stated in her Section 161 Cr.P.C
statement that the petitioner herein, who is A-4, also harassed her
along with along with other accused by making illegal demand for
additional dowry. Therefore, he would submit that this is a
deliberate improvement made in her Section 161 Cr.P.C statement,
which was not stated in the F.I.R. So, he would submit that this is
a false case foisted against him and thereby prayed for quash of
the said charge sheet against the petitioner.
The aforesaid ground urged by the petitioner is not a valid
legal ground for quash of the charge sheet. No doubt, it is only
stated in the F.I.R that the petitioner harassed the de facto
complainant by using harsh language against her and that
subsequently she stated in her Section 161 Cr.P.C statement that
the petitioner also harassed the de facto complainant along with
other accused by demanding additional dowry from her. Whether
the subsequent statement given by her in her Section 161 Cr.P.C
statement is an improvement made subsequently or not and
whether the said evidence is true or not is the matter relating to
appreciation of evidence by the trial Court in the final adjudication
of the case. This Court in a petition filed under Section 482 Cr.P.C
cannot appreciate the evidence on record in exercise of its inherent
powers. Since the ground that was urged by the petitioner pertains
to appreciation of evidence of the witnesses, it cannot be a valid
legal ground for quash of the charge sheet. Therefore, the Criminal
Petition is devoid of merit.
Resultantly, the Criminal Petition is dismissed.
Miscellaneous petitions, if any pending, in the Criminal
Petition, shall stand closed.
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The Andhra Pradesh Court recently ruled that in a petition filed under Section 482 Cr.P.C the Court cannot appreciate the evidence on record in exercise of its inherent powers. The Criminal Petition under Section 482 of the CrPC, 1973 was filed seeking to quash the charge sheet. The petitioner who was one of the accused was undergoing prosecution for the offences punishable...
The Andhra Pradesh Court recently ruled that in a petition filed under Section 482 Cr.P.C the Court cannot appreciate the evidence on record in exercise of its inherent powers.
The Criminal Petition under Section 482 of the CrPC, 1973 was filed seeking to quash the charge sheet. The petitioner who was one of the accused was undergoing prosecution for the offences punishable under Section 498A r/w 34 IPC and under Sections 3 and 4 of the Dowry Prohibition Act, 1961.
The Petitioner's contention was that in the FIR it was only stated that the Petitioner harassed the complainant by using harsh language against her. However, in complainant's Section 161 Cr.PC statement (statement to police) it is stated that the petitioner also harassed her along with other accused by making illegal demand of additional dowry.
The Petitioner alleged that it is a deliberate improvement in her Section 161 Cr.P.C. statement which was not stated in the FIR. He prayed for quash of the said charge sheet on this ground.
Justice Chekati Manavendranath Roy ruled that the ground raised by the petitioner is not a valid legal ground for quash of charge sheet under Section 482. The bench stated as below:
"Whether the subsequent statement given by her in her Section 161 Cr.P.C statement is an improvement made subsequently or not and whether the said evidence is true or not is the matter relating to appreciation of evidence by the trial Court in the final adjudication of the case. This Court in a petition filed under Section 482 Cr.P.C cannot appreciate the evidence on record in exercise of its inherent powers."
The Court dismissed the Criminal Petition since the ground that was urged by the petitioner pertains to appreciation of evidence of witnesses which the Court does not have power to do under Section 482 Cr.P.C.
Case Title: Thammisetti Narasimha Rao Versus The State of AP
Case No: Criminal Petition No.63 of 2022
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This appeal has been filed by the complainant in C.C No.1577 of 2003
on the file of the Judicial First Class Magistrate Court, Muvattupuzha
challenging the acquittal of the 2nd respondent who was accused of an
offence under Section 138 of the Negotiable Instruments Act. The
complaint was filed alleging that the 2nd respondent herein had in the
discharge of a debt, issued cheque No.327388 dated 30.12.2000 drawn on
the Catholic Syrian Bank, Koothattukulam branch for a sum of Rs.1,70,000/-
and on presentation, the said cheque was returned unpaid on the ground of
insufficiency of funds in the account maintained by the 2 nd
respondent/accused. The complaint was filed after statutory notice and
complying with all other formalities.
2. The appellant/complainant was examined as PW1 and Exts.P1
to P11 were marked. From the side of the 2nd respondent/accused, DW's 1 to
3 were examined and D1 to D7 were marked.
3. The learned Magistrate, on a consideration of the matter found
that the complainant had failed to prove his case and accordingly, acquitted
the 2nd respondent/accused.
4. Sri.Peeyus A. Kottam, the learned counsel appearing for the
appellant would submit that the circumstances which led to the finding that
the complainant has not proved his case can be seen (in summary) from
paragraph 21 of the impugned judgment. He submits that the finding of the
learned Magistrate that cheque No.327388 was issued before 5.6.1995 at the
time when the complainant had advanced a loan of Rs.40,000/- to the 2 nd
respondent/accused is incorrect. According to him, the circumstances taken
into account by the learned Magistrate was that there was evidence to show
that cheque bearing No.327387 was presented on 23.05.1995, cheque
bearing No.327392 was presented on 10.06.1995, cheque bearing No.327393
was presented on 05.06.1995 and cheque bearing No.327397 was presented
on 17.07.1995 and that the entire cheque book was exhausted on 07.02.1996.
Further, a new cheque book was found to be issued on 29.03.1996 and the
accused presented cheque leaf-bearing No.238249 (from the new cheque
book) on 29.03.1996. The learned counsel for the appellant/complainant
would submit that even according to the case put forth by the 2 nd
respondent/accused, a cheque bearing No.327387 was presented for
encashment on 23.05.1995, whereas the date of the earlier loan admittedly
availed by the accused from the complainant is 18.04.1995. From this,
according to the learned counsel for the complainant, it is clear that the
cheque bearing No.327388 (the subject cheque) could not have been issued
for the loan availed on 18.04.1995. He would submit that the learned
Magistrate went wrong in assuming that a new loan of Rs.1,70,000/- would
not have been granted when the old loan was outstanding and that the
amount of loan of Rs.1,70,000/- would not have been given in cash when the
earlier loan of Rs.40,000/- was given by way of cheque. He submits that the
learned Magistrate should have accepted the case of the complainant that the
loan of Rs.1,70,000/- was given in personal capacity. He submits that there
was no warrant for the learned Magistrate to assume that the cheque was a
blank cheque given as security for the earlier loan. D2 and D3 documents do
not, according to the learned counsel, go against the case of the Complainant.
The learned counsel also contends that there was nothing illegal in giving a
personal loan just because the business of the complainant is that of money
lending. The learned counsel for the appellant would rely on the judgment of
the Supreme Court in Rohitbhai Jivanlal Patel v. State of Gujarat,
(2019) 18 SCC 106 to contend that the principle that the appellate court
would be slow in setting aside a judgment of acquittal that two views are
possible could not be applicable in the case of a prosecution under Section
138 of the Negotiable Instruments Act. He would further rely on the
judgment of the Supreme Court in M. Abbas Haji v. T.N.
Channakeshava, (2019) 9 SCC 606 to contend that failure to explain as
to how the cheque in question reached the hands of the complainant is fatal
to the defence. He also relies on the judgment of the Supreme Court in APS
Forex Services (P) Ltd. v. Shakti International Fashion Linkers,
(2020) 12 SCC 724 to contend that where the issuance of the cheque and
the signatures are not disputed, the presumptions under the Negotiable
Instruments Act will kick in and for the proposition and that it was wrong to
shift the burden of proving the existence of a liability to the complainant. In
other words, according to the learned Counsel, the presumption under
Section 139 of the Negotiable Instruments Act, though rebuttable, should
have operated in favour of the Complainant in the total absence of any
acceptable evidence to rebut that presumption from the side of the defence.
5. The learned counsel for the 2nd respondent/accused would rely
on the judgment of this Court in Joshy P G v. Jose Varghese and
Another, 2019 (4) KHC 753 to contend that where an accused in a
prosecution under Section 138 of the Negotiable Instruments Act has fairly
and reasonably established that the case put up by the complainant is highly
improbable, the complainant cannot rely on the statutory presumption any
longer. He would also refer to the Division Bench judgment of this Court in
Basheer K v. C.K.Usman Koya and Another, 2021 (2) KHC 432 for
the proposition that where the accused has succeeded in rebutting the
presumption under the Negotiable Instruments Act, the burden shifts to the
complainant to prove consideration and on failure to do so, the accused is
entitled to be acquitted.
6. I have considered the contentions raised. The first circumstance
taken into account by the learned Magistrate to hold that the 2 nd
respondent/accused was entitled to an acquittal is the fact that cheque
No.327388(the subject cheque) could not have been one which was issued
close to the time at which it was stated to have been issued. According to the
appellant/complainant, the loan of Rs.1,70,000/- was given on 26.12.2000
and in the discharge of this debt, the subject cheque bearing No.327388 was
issued on 30.12.2000. Based on the evidence tendered by the 2 nd
respondent/accused, the learned Magistrate found that immediately
previous cheque, namely cheque bearing No.327387 was presented for
encashment on 23.05.1995, that cheque bearing No.327392 was presented
for encashment on 10.06.1995 and cheque bearing No.327397 was presented
for encashment on 17.07.1995. The learned Magistrate took note of the fact
that the entire cheque book, which also contained the subject cheque bearing
No.327388, was exhausted on 07.02.1996 and a new cheque book was issued
on 29.03.1996 and further that the 2nd respondent/accused had presented
the cheque bearing No.238249 from the new cheque book on 29.03.1996.
The aforesaid findings of the learned Magistrate based on Ext.D4 passbook
of the accused cannot be faulted. The mere fact the cheque bearing
No.327387 (the subject cheque bears the No.327388) was presented for
encashment only on 23.05.1995 and the fact that the earlier loan admittedly
availed by the accused from the complainant is 18.04.1995 does not, in any
manner, suggest that the subject cheque was not issued as a security for the
loan availed on 18.4.1995. There may have been many reasons for the earlier
cheque having been presented later. Considering the totality of the evidence,
I think that the case put forth by the 2 nd respondent/accused cannot be
disbelieved, as it is the admitted case that there was a transaction between
the parties in the year 1995 as is evident from the fact that an amount of
Rs.40,000/- was credited to the account of the 2 nd respondent/accused
through cheques issued by the complainant on 18.04.1995 and 29.04.1995.
The loan of Rs.1,70,000/- was reportedly given on 26.12.2000. It is highly
improbable that a cheque leaf from a cheque book that got exhausted on
07.02.1996 would have been used on 30.12.2000 in the discharge of a
liability for a loan taken on 26.12.2000. Therefore, I am in complete
agreement with the view taken by the learned Magistrate that there is
evidence to show that the cheque in question was not issued in discharge of
the alleged liability of Rs.1,70,000/-.
7. The learned Magistrate has also found from Exts.D2 and D3 that
the earlier loan stood discharged. Though the appellant/complainant
disputed the fact that the earlier loan had been discharged, the learned
Magistrate found from Exts.D2 and D3 receipts that the signature of the
appellant/complainant stood proved. A comparison of the admitted
signature of the appellant/complainant with the signatures in Exts. D2 and
D3 was clearly an exercise authorized under Section 73 of the Indian
8. As rightly held by the learned Magistrate there is no admission
of repayment of the loan amount of Rs.40,000/- on 26.12.2000. The
statement that another loan of Rs.1,70,000/- was given in cash by the
appellant/complainant, who was admittedly a money lender at the time
when the earlier loan of Rs.40,000/- remained unpaid was clearly a
circumstance that could be taken note of in concluding that the 2 nd
transaction (loan of Rs.1,70,000/-) was quite improbable. The case of
appellant/complainant that the second transaction with the 2 nd
respondent/accused was in his personal capacity was only to get over the
defence of the 2nd respondent/accused that he had discharged the earlier
liability and that there was no further liability subsisting to be paid off to the
9. The documents produced by the appellant/complainant
(Exts.P9 Daybook, P8 DPN register and P10 & P11 Counterfoils of receipts
book) were also not accepted by the learned Magistrate, as the details of the
earlier loan which was admittedly paid by cheque were also not entered in
10. I think that this is a case where the 2nd respondent/accused has
been successful in rebutting the statutory presumption under Section 139 of
the Negotiable Instruments Act. The fact that there was an earlier
transaction in the year 1995 and that liability had been settled by repayment
is a factor which would lend credence to the case of the 2 nd
respondent/accused that Ext.P1 cheque was one issued as security in the
discharge of that liability and such cheque was misused by the
appellant/complainant to make it appear that there was a subsequent
transaction. In the totality of the facts and circumstance of this case, this
Court should not interfere with the findings rendered by the trial court. As
held by this Court in Basheer K (supra) when the accused has succeeded in
rebutting the presumption, it is for the complainant to prove the existence of
a debt in the discharge of which the subject cheque was issued. I have found
that the 2nd respondent/accused has succeeded in showing that the statutory
presumption under Section 139 of the Negotiable Instruments Act should not
be applied. In other words the 2nd respondent/accused has been able to rebut
the statutory presumption. The appellant/complainant has not thereafter
been able to bring in any evidence suggesting the existence of a transaction
resulting in a legally enforcible debt payable by 2 nd respondent/accused.
Therefore, the prosecution of the 2 nd respondent/accused under Section 138
of the Negotiable Instruments Act must necessarily fail. The decisions cited
at the bar by the learned counsel for the appellant, do not support his case
especially when this Court is of the view that the 2 nd respondent/accused has
succeeded in rebutting the statutory presumption under Section 139 of the
Negotiable Instruments Act. Appeal fails and will stand dismissed.
|
The Kerala High Court observed that it was highly improbable that a cheque leaf from a cheque book that was exhausted in 1996 would be used by a drawer to discharge his liability that arose in the year 2000. Justice Gopinath P further noted that it was highly unlikely for a money lender to initiate a second loan transaction when the first loan transaction was yet to be paid,...
The Kerala High Court observed that it was highly improbable that a cheque leaf from a cheque book that was exhausted in 1996 would be used by a drawer to discharge his liability that arose in the year 2000.
Justice Gopinath P further noted that it was highly unlikely for a money lender to initiate a second loan transaction when the first loan transaction was yet to be paid, which further weakened the case of the appellant.
Accordingly, it was held that the complaint had failed to prove the existence of a legally enforceable debt, thereby implying that the accused under Section 138 of the Negotiable Instruments Act had successfully rebutted the statutory presumption.
This appeal was filed against the order of a Judicial First Class Magistrate Court acquitting the 2nd respondent herein from an offence under Section 138 of the Negotiable Instruments Act.
Factual Background:
A complaint was filed alleging that the 2nd respondent herein had issued a cheque bearing No.327388 dated 30.12.2000 (subject cheque) drawn for a sum of Rs.1,70,000/- in the discharge of a debt and that on presentation, the said cheque was returned unpaid citing insufficiency of funds in the account.
The Magistrate found that the subject cheque was issued before June 1995 at the time when the complainant had advanced a loan of Rs.40,000/- to the 2nd respondent. It also observed that a new loan would not have been granted when the old loan was outstanding and that the amount of loan of Rs.1,70,000/- would not have been given in cash when the earlier loan of Rs.40,000/- was given by way of cheque.
Since the complainant had failed to prove his case, the 2nd respondent was acquitted. Aggrieved by such acquittal, the complainant approached the Court.
The case of the complainant was that the loan of Rs.1,70,000/- was given in a personal capacity. According to him, the presumption under Section 139 of the Act, though rebuttable, should have operated in his favour in the total absence of any acceptable evidence to rebut that presumption from the side of the defence.
The 2nd respondent relied on a couple of decisions to contend that where an accused in a prosecution under Section 138 of the NI Act has fairly and reasonably established that the case put up by the complainant is highly improbable, the complainant cannot rely on the statutory presumption any longer.
He added that for the proposition that where the accused has succeeded in rebutting the presumption under the Negotiable Instruments Act, the burden shifts to the complainant to prove consideration and on failure to do so, the accused is entitled to be acquitted.
Observations:
Improbable That Cheque Leaf From Cheque Book Exhausted in 1996 Used To Discharge Liability In 2000
The first circumstance taken into account by the Magistrate to hold that the 2nd respondent was entitled to an acquittal is the fact that the subject cheque could not have been one which was issued close to the time at which it was stated to have been issued. According to the appellant/complainant, the loan of Rs.1,70,000/- was given on 26.12.2000 and in the discharge of this debt, the subject cheque was issued on 30.12.2000.
However, based on the evidence tendered by the 2nd respondent, the immediately previous cheque was presented for encashment on 23.05.1995. The one following the subject cheque was presented for encashment on 10.06.1995.
The Magistrate took note of the fact that the entire cheque book which contained the subject cheque was exhausted on 07.02.1996 and a new cheque book was issued on 29.03.1996. Further, it was seen that the 2nd respondent had presented the cheque from the new cheque book on 29.03.1996.
The Court noted that the aforesaid findings of the Magistrate based on the passbook of the accused cannot be faulted.
However, it emphasised that the mere fact the immediately preceding cheque bearing No.327387 was presented for encashment only on 23.05.1995 and the fact that the earlier loan admittedly availed by the accused from the complainant is 18.04.1995 does not, in any manner, suggest that the subject cheque was not issued as a security for the loan availed on 18.4.1995. There may have been many reasons for the earlier cheque having been presented later.
However, the Bench noted thus:
"Considering the totality of the evidence, I think that the case put forth by the 2nd respondent cannot be disbelieved, as it is the admitted case that there was a transaction between the parties in the year 1995 as is evident from the fact that an amount of Rs.40,000/- was credited to the account of the 2nd respondent/accused through cheques issued by the complainant on 18.04.1995 and 29.04.1995".
The Court also took note of the fact that the loan of Rs.1,70,000/- was reportedly given on 26.12.2000.
"It is highly improbable that a cheque leaf from a cheque book that got exhausted on 07.02.1996 would have been used on 30.12.2000 in the discharge of a liability for a loan taken on 26.12.2000."
Unconvincing That Second Loan Transaction Transpired When First Loan Was Unpaid
As rightly held by the Magistrate, there was no admission of repayment of the loan amount of Rs.40,000/- on 26.12.2000.
The statement that another loan of Rs.1,70,000/- was given in cash by the appellant, who was admittedly a money lender at the time when the earlier loan of Rs.40,000/- remained unpaid was clearly a circumstance that could be taken note of in concluding that the 2nd transaction was quite improbable.
The case of the appellant that the second transaction with the 2nd respondent was in his personal capacity was only to get over the defence of the 2nd respondent that he had discharged the earlier liability and that there was no further liability subsisting to be paid off to the appellant.
"Therefore, I am in complete agreement with the view taken by the learned Magistrate that there is evidence to show that the cheque in question was not issued in discharge of the alleged liability of Rs.1,70,000/-."
The Court also found that the 2nd respondent had succeeded in showing that the statutory presumption under Section 139 should not be applied. I
"In other words, the 2nd respondent/accused has been able to rebut the statutory presumption. The appellant/complainant has not thereafter been able to bring in any evidence suggesting the existence of a transaction resulting in a legally enforcible debt payable by 2nd respondent/accused."
Therefore, the Bench observed that the prosecution of the 2nd respondent under Section 138 of the Negotiable Instruments Act must necessarily fail.
Accordingly, the appeal failed and was dismissed.
Advocate Peeyus A. Kottam appeared for the appellant, Government Pleader Ranjith George represented the State and the respondent appeared through Advocate P.V. Elias.
Case Title: V.P Zacharia v. State of Kerala & Anr.
|
Appeal No. 324 of 1962.
Appeal from the judgment and decree dated August 8, 1960 of the Kerala High Court, in O. P. No. 97 of 1953.
G.B. Pai, J. B. Dadachanji, O. C. mathur and Ravinder Narain, for the appellant.
S.V. Gupte, Additional Solicitor General of India, R. Ganapathy lyer, P. D. Menon and R. H. Dhebar, for the respondent.
April 9.
The judgment of the Court was delivered by GAjENDRAGADKAR J.
The short question which arises in this appeal is whether the factory run by the appellant, the Associated Industries (P) Ltd., Qulion, falls within section 1 (3) of the employees ' Provident Funds Act, 1952 (No. 19 of 1952) (hereinafter called 'the Act ').
The appellant is a Company which runs a tile factory and an engineering works at Quilon.
The tile factory began its career in July, 1943, and the engineering works in 907 September, 1950.
It is common ground that these two industries are separate and distinct and that they are carried on by the same Company and on the same premises.
It is also common ground that a licence issued under the , has been issued to the appellant for the entire premises and it is under this licence that the said premises arc allowed to be used as one factory under the said Act and the rules framed thereunder.
It appears that the respondent, the Regional Provident Fund Commissioner, Vanchiyoor, Trivandrum, intimated to the appellant on March 10, 1953, that the Act as well as the scheme framed under it were applicable to the appellant 's factory, and so, the appellant was called upon to deposit in the SubOffice of the Imperial Bank of India the contribu tions and administrative charges as required by section 6 of the Act.
The same requisition was repeated on March 25, 1953 and April 24, 1953.
The appellant disputed the correctness of the view taken by the respondent that the appellant 's factory fell under the purview of the Act, and so, it refused to comply with the respondent 's requisition.
Thereupon, the respondent wrote to the appellant on June 16, 1953 informing it that appropriate action would be taken to compel the appellant to make the necessary deposit and submit returns as required by the Act in case it failed to comply with the notices issued in that behalf.
At this stage, the appellant moved the High Court of Kerala by a writ petition (O. P. No. 97/1953) in which it claimed a writ of certiorari quashing the notices issued by the respondent against it, and restraining the respondent from proceeding further in the matter and for other incidental reliefs.
The main contention raised by the appellant before the High Court was that the appellant 's factory was not an establishment to which section 1 (3) of the Act applied.
The High Court 908 has rejected this contention.
Then it was urged before the High Court on behalf of the appellant that the effect of the notices served on the appellant by the respondent was retrospective in character and it was urged that the said notices were illegal.
This argument was also rejected by the High Court. 'I he appellant further contended before the High Court that since for the relevant period the employees had not made their contributions, it would be inequitable to enforce the notices against the appellant.
The High Court noticed the fact that it had been conceded by the respondent that he did not propose to collect the employees ' share of the contribution to the fund for the relevant period from the appellant, and it held that the concession so made was proper and fair and so, there was no substance in the grievance made by the appellant that giving effect to the notices served on it by the respondent would be inequitable and unjust.
On these findings, the writ petition filed by the appellant was dismissed with costs, It is against this order that the appellant has come to this Court with a certificate granted by the High Court.
The principal point which is sought to be raised by Mr. Pai on behalf of the appellant in this appeal is concluded by a recent decision of this Court in The Regional Provident Fund Commissioner, Bombay vs (1) Shree Krishna Metal Manufacturing Co., Bhandra, and (2) Oudh Sugar Mills Ltd. (1).
It would be noticed that the relevant sections which fell to be construed in dealing with the appellant 's contention are section 1 (3), section 2 (g) and (i) and section 6 of the Act.
Section 1 (3) (a) provides, inter alia, that subject to the provisions contained in section 16, the Act applies to every establishment which is a factory engaged in any industry specified in Schedule I and in, which 50 or more persons are employed; the numerical requirement of 50 has been reduced to 20 by an Amending Act of 1960.
Section (2) (g) (1) A.1,R. 909 defines a 'factory ' as meaning any premises, including the precincts thereof, in any part of which a manufacturing process is being carried on or is ordinarily so carried on, whether with the aid of power or without the aid of power; and section 2 (i) defines an 'industry ' as meaning any industry specified in Schedule I, and includes any other industry added to the Schedule by notification under section 4.
Section 6 prescribes for the levy of contributions and deals with other matters which may be provided for in Schemes; and in accordance with the provisions of this section, the Employees ' Provident Fund Scheme of 1952 has been framed.
In the case of the Regional Provident Fund Commissioner, Bombay, (1) this Court has held that section 1 (3) (a) does not lend itself to the construction that it is confined to factories exclusively engaged in any industry specified in Schedule I.
It was observed in that connection that when the legislature has described factories as factories engaged in any industry, it did not intend that the said factories should be exclusively engaged in the industry specified in Sch.
I. Consistently with this view, this Court further observed that the word 'factory ' used in section 1 (3) (a) has a comprehensive meaning and it includes premises in which any manufacturing process is being carried on as described in the definition, and so the factory engaged in any industry specified in Sch.
I does not necessarily mean a factory exclusively engaged in the particular industry specified in the said Schedule.
in construing the scope of section 1 (3) (a) this Court held that composite factories came within its purview and that the fact that a factory is engaged in industrial activities some of which fall under the Schedule and some do not, will take the factory out of the purview of section 1 (3) (a) having dealt with this aspect of the matter, this Court proceeded to consider the question as to (1) A I. R. 910 whether numerical requirement of the employment of 50 persons, as the section then stood, applied to the factory or to the industry, and it held that the said test applied not to the industry but to the factory.
Thus, the conclusion was that in order that a factory should fall under section 1 (3) (a), it must be shown that it is engaged in any such industry as is specified in Sch.
I and the number of its employees should not be less than 50.
This decision makes it clear that section 1 (3) (a) is not confined only to factories which are exclusively engaged in industrial work to which Sch.
I applies,but it also takes in composite factories which run industries some of which fall under Sch.
I and some do not.
In order to make the position clear let us state the true legal position in respect of the scope of the application of section 1 (3) (a) in categorical terms.
If the factory carries on one industry which falls under Sch.
I and satisfies the requirement as to the number of employees prescribed by the section, it clearly falls under section 1 (3) (a).
If the factory carries on more than one industry all of which fell under Sch. 1 and its numerical strengh satisfies the test prescribed in that behalf, it is an establishment under section 1 (3) (a).
If a factory runs more industries than one, one of which is the primary and the dominant industry and the others are its feeders and can be regarded as subsidiary, minor, or incidental industries in that sense, then the character of the dominant and primary industry will determine the question as to whether the factory is an establishment under section 1 (3) (a) or not.
If the dominant and primary industry falls under Sch.
I, the fact that the subsidiary industries do not fall under Sch.
I will not help to exclude the application of section 1 (3) (a).
If the dominant and primary industry does not fall under Sch. 1, but one or more subsidiary, incidental, minor and feeding industries fall under Sch.
I, then section 1 (3) (a) will not apply.
If the factory runs more 911 industries than one all of which are independent of each other and constitute separate and distinct industries, section 1 (3) (a) will apply to the factory even if one or more.
, but not all, of the industries run by the factory fall under Sch.
The question about the subsidiary, minor, or feeding industries can legitimately arise only where it is shown that the factory is really started for the purpose of running one primary industry and has undertaken other subsidiary industries only for the purpose of subserving and feeding the purposes and objects of the primary industry ; in such a case, these minor industries merely serve as departments of the primary industry; otherwise if the industries run by a factory are independent, or are not so integrated as to be treated as part of the same industry, the question about the principal and the dominant character of one industry as against the minor or subsidiary character of another industry does not fall to be considered.
It is in the light of this position that we may revert to the actual decision in The Regional Provident Fund Commissioner, Bombay (1).
In that case, this Court was dealing with the cases of Shree Krishna Metal Manufacturing Co., and Oudh Sugar Mills Ltd. The Metal Company carried on four different kinds of activities and it was held that its industrial activity which fell under Sch.
I was neither minor, nor subsidiary, nor incidental to the other activities.
In other words, the industry which the company ran and which fell under Sch.
I was independent of the other industries conducted by the Company, and so, it was held that the question about one industry being subsidiary, minor, or incidental did not arise.
In the result, the Company 's factory was found to fall under section 1 (3) (a).
On the other hand, the case of the Oudh Sugar Mills stood on a different basis.
The primary activity (1) A. I. R. 912 of the mills was the manufacture of hydrogenated vegetable oil named 'Vanasada ' and its by products, such as soap, oil cakes, etc.
It appeared that a department of the Mills manufactured containers and this part of the industrial activity of the Mills fell under Sch.
I. Evidence, however, showed that the fabrication of the containers had been undertaken by the Mills only as a feeder activity which was integrally connected with its primary business of producing and marketing vegetable oil, and since the primary business was.
outside Sch. 1, the factory as a whole was held to be outside section 1 (3) (a).
It is true that since this Court dealt with the two respective cases of the Company and the, Mills in one judgment, the test as to the principal character of the industrial activity of one industry in relation to the character of the minor industry came to be considered ; but the application of the said test became necessary essentially because of the case of the Oudh Sugar Mills.
In the case of the Company, however, the several activities were not minor or subsidiary, but were independent , and it was held that the factory of the company fell under section 1 (3) (a).
Therefore, in our opinion, there is no scope for the argument in the present case that the engineering industry which the appellant runs is not the primary or dominant industry but the manufacture of tiles is.
Mr. Pai attempted to argue that though engineering industry run by the appellant 's factory falls under Sch.
I,it employs only 24 workers whereas the tiles industry employs more than 50.
He also relied on that fact that the tiles factory was started in 1943 and the engineering works in 1950, and his argument was that judged in the light of the fact that the tiles industry was started first, as well as considered by the application of the test of the strength of the employees working in the two industries,tiles industry should be treated to be the main, dominant and primary industry of the factory, and so, the factory, as a 913 whole, should be held to be outside section 1 (3) (a).
In our opinion, this argument is plainly untenable.
If the tiles industry and the engineering industry are independent of each other, then no question arises as to which is principal and which is subsidiary.
As soon as it is shown that the factory is carrying on two industries independent of each other one of which falls under Sch.
I, it becomes a composite factory to which section 1 (3) (a) applies.
When section 1 (3) (a) requires that the factory should be engaged in any industry specified in Sch.
I, considerations as to whether the industrial activity is major or minor can arise only where some activities are dominant and others are of the nature of feeding activities, but not otherwise.
Where the industrial activities are independent and the factory is running separate industries within the same premises and as part of the same establishment and under same licence, it is difficult to accept the argument that in dealing with such a factory, enquiry would be relevant as to which of the industries is dominant and primary, and which is not.
Therefore, in our opinion, the High Court was plainly right in rejecting the appellant 's case that its factory did not attract the provisions of section 1 (3) (a) of the Act.
Mr. Pai wanted to contend that if the appellant 's factory is treated as falling under section 1 (3) (a), complications may arise by reason of the fact that the rate of contribution initially prescribed by section 6 has been amended in 1962 by the Amending Act No. 48 of 1962.
Section 6 of the unamended Act provides, inter alia, that the contribution to be paid by the employer to the fund shall be 6 1/4% of the basic wages, dearness allowance and retaining allowance, if any, for the time being payable to each of the employees, and the employees ' contribution shall be equal to the contribution payable by the employer in respect of him.
This section further provided that the employee was competent to 914 make a higher contribution not exceeding 8 and one third per cent of his emoluments specified in the said section.
By the amendment made in 1962, this rate has been enhanced to 8% in respect of any establishment or class of establishments which the Central Government, after making such enquiry as it deems fit, may by notification in the official Gazette specify.
We were told that in regard to the engineering industry.
, this amended sub section has been extended by a notification, and Mr. Pai 's apprehension is that if the factory of the appellant is held to be an establishment to which section 1 (3) (a) applies on the ground that it is a composite factory Which runs several industries one of which falls under Sch.
I, it is likely that the increased rate may be made applicable to the factory as a whole.
We ought to add that Mr. Pai conceded that subsequent to the decision of the appellant 's writ petition in the High Court, the tiles industry has also been included in Sch.
I. but the revised rate has been made applicable to it.
Mr. Pai contends that if the factory is treated as falling under section 1 (3) (1), a distinction should be made in the different industries run by the factory for the purpose of calculating the contribution of the employer to the Provident Fund.
We do not propose to deal with this contention in the present appeal.
That is a matter which may well have to be decided by the respondent, and it is not open to Mr. Pai to request this Court to decide such a hypothetical question in the present proceedings.
The result is,, the appeal fails and is dismissed with costs.
Appeal dismissed.
|
The appellant runs a tile factory and an engineering works at Quilon.
These two industries are indepedent of each other, but they arc carried on by the same company and on the same premises.
The tile factory was started in 1943 and the engineering works in 1950.
The engineering industry was included in Schedule I of the Act and it employed only 24 workers, whereas the tile industry employed more than 50.
The license issued to the appellant under the , was for the entire premises.
The appellant moved a writ petition in the High Court in which he alleged that its factory did not attract the provisions of section 1 (3) (a) of the Employees ' Provident Funds Act 1952.
The 'writ petition was dismissed with costs.
It is against this order that the appellant has come to this Court.
Held (i) that a factory is an "establishment" within the meaning of section 1 (3) (a) of the Act if it satisfies the requirements of the section, namely, (1) that its one or all industries fall under Schedule I of the Act, (2) that it satisfies the numerical strength as prescribed under the section.
(ii)that the character of the dominant or primary industry will determine the question of the application of section I (3) (a) if a factory carries on both the dominant and subsidiary industries.
(iii)That if the factory runs more industries than one an of 'which are independent of each other, section I (3) (a) will 906 apply to the factory even if one or more, but not all, of the industries run by it fall under Shedule I. (iv)that neither the tile industry was dominant nor the engineering industry was subsidiary; rather both the industries were independent of each other.
(v)that the factory of the appellant will be deemed to be a composite factory and the provisions of section 1 (3) (a) will be attracted as one of its industries i. e. engineering industry, falls under Schedule I.
The Regional Provident Fund Commissioner, Bombay vs Shree Krishna Metal Manufacturing Co. Bhandara [1962] Supp.3 section C. R. 815, approved.
|
This appeal is filed challenging the Judgment and
award passed in WCF No.59/2009 dated 21.07.2011 on
the file of the Labour Officer and Workmen’s
questioning the liability fastened on the Insurance
2. The factual matrix of the case of the
claimants before the Workmen’s Compensation
Commissioner is that, the claimants are the legal hears
of the deceased Azam Khan, who died in an accident
which occurred on 30.01.2008, contending that as per
the instructions of the owner i.e. respondent No.4
herein, he was driving the lorry bearing registration
No.KA-36/6712 from Kampli to Tumkur to unload the
rice bags and after taking dinner on NH-13, the second
driver by name Paulraj was driving the same in a rash
and negligent manner and when it reached near
Mariyammanahalli bye-pass, in order to avoid the
accident from oncoming lorry he suddenly applied the
brake of the vehicle, due to which the deceased fell
down and sustained severe injuries and he succumbed
to the accidental injuries. It is claimed that, he was
working with respondent No.1 of the claim petition and
he was getting salary of Rs.6,000/- per month and the
Workmen’s Compensation Commissioner awarded an
amount of Rs.4,15,960/-. It is the contention of the
appellant herein that the Insurance company denied the
relationship of employer and employee and all other
contentions raised in the claim petition and also
contended that, the policy does not covers the risk of
the second driver and no premium has been to cover the
risk of the second driver and in spite of it, the
Workmen’s Compensation Commissioner allowed, the
claim petition. Hence, the present appeal is filed.
3. Being aggrieved by the Judgment and
award of the Workmen’s Compensation Commissioner
the counsel appearing for the Insurance company
would vehemently contend that, the Commissioner
was not justified in answering Issue No.2 by holding
that, the deceased was working under the respondent
No.1, who is none other than the brother of the
deceased by overlooking the documentary evidence
on record. It is also contended that, the Commissioner
was not justified in allowing the petition when there is
no contract of carrying two drivers under the policy
and the deceased driver being the brother of the
Insured and when no additional premium is paid to
the additional driver under the policy. The counsel
also contend that, the vehicles which are permitted to
ply throughout the nation are permitted to carry two
drivers and not the vehicles which are restricted to ply
only in the particular State and that too in the present
case, the deceased was going from Kampli to Tumkur
which is hardly 300 kilometers distance and hence,
the Commissioner has not justified in allowing the
claim petition, ignoring the material and documentary
evidence and hence, it requires interference of this
4. Learned counsel in support of his
arguments he relied upon the Judgment of this Court,
in the case of M.E.Jayachandra Vs. Reliance
General Insurance company Ltd., and another,
reported in 2016 ACJ 1576, wherein, this Court has
held that, the liability in respect of spare driver and if
the policy does not disclose the coverage of the risk of
the spare driver, liability cannot be fastened on the
Insurance company and also held that, the claimant
Injured neither produced the licence to prove that he
had license to drive the heavy goods vehicle, nor he
cross-examined any witness to prove that he was
travelling as spare driver. The counsel also relied upon
the Judgment of this Court, in the case of National
Lakshmindevamma and another, reported in 2011
Kant. M.A.C. 629 (kant), wherein also this Court has
held that, the liability cannot be fastened on the
Insurer in the case of gratuitous passengers, on the
ground that there is breach of terms and conditions of
the policy and that when the owner of the offending
vehicle has not paid the required premium, question
of fastening liability on the insurer and the insurer
satisfying the award does not arise.
5. Per contra, learned counsel appearing for
the respondent would vehemently contend that, the
respondent was having only one vehicle and the
claimant was working as driver and the father had
lodged the complaint wherein, specifically stated that,
the deceased was the driver and another driver who
was driving the vehicle at the time of the accident is
the spare driver and the claim is made by the legal
heirs of the deceased driver. The counsel also would
submits that, the complaint was given within a span of
two hours of the death of the deceased and the
vehicle is a goods vehicle and the same was taken
from Kampli to Tumkur to unload the rice bags. The
counsel in support of his arguments, he relied upon
the Judgment of this Court, in the case of United
Kamanagouda Patil and another, reported in 2017
(2) KCCR 1691 , wherein this Court has discussed
Section 2(1)(n) of the Employees Compensation Act,
1923, and the claimant working as driver of the Jeep
belonging to mother of claimant and held that, there
is no provision which prohibits son to work and claim
to be workman under his father, mother or any other
relative, the claimant is workman within meaning of
the Act and hence, the contention cannot be accepted.
6. Having heard the respective counsel and
also the material on record, the point that would arise
for consideration of this Court are:
(i) Whether the Workmen’s
Compensation Commissioner committed an
error in coming to the conclusion that, the
deceased was a workman as defined under
Section 2(1)(n) of the Employees
committed an error in fastening the liability on
the Insurance company and whether it requires
(iii) What order?
7. Answer to Point No.1 : Having heard the
respective counsel and also on perusal of the material,
the Court has to take note of the pleading of the
claimant in the application filed under Section 22 read
with Section 10A(2) of the Workmen Compensation
Act, 1923, wherein it is contended that, the deceased
was working as a driver of the lorry and as per the
direction of the respondent No.1, the deceased was
proceeding as a lorry driver from Kampli to Tumkur to
unload the rice bags along with the second driver by
name Paulraj and cleaner Veeresh. After completion of
meals, the second driver by name Paulraj driving the
said lorry and when he was driving the vehicle, by
seeing the on coming vehicle which suddenly came
near the vehicle, the driver suddenly stopped the
lorry, as a result the deceased who was sitting in the
cabin fell down from the lorry and sustained severe
injuries. The very contention of the Insurance
company in the written statement is that, there was
no any employer and employee relationship between
the respondent No.1-owner and the deceased. The
respondent No.2 also denied the contents of the claim
petition and hence, the company is not liable to pay
any compensation. The respondent No.1 also filed the
written statement. In paragraph No.5, it is admitted
that, he is the owner of the vehicle and the vehicle
was insured with the respondent No.2 and on the date
of the accident the policy was in force and the
deceased Ajam Khan had valid driving licence as on
the date of the accident and he has not violated any of
the conditions. If the tribunal comes to the conclusion
that, the petitioners are entitle for any compensation,
the same may be awarded against the respondent
No.2 in view of the contract of indemnity and admitted
the other allegation made in the petition, except
denying the wages. It is also important to note that, it
is emerged during the course of the evidence the
deceased is none other than the brother of the
respondent No.1 and son of the complainant. The
claimant also examined the wife of the deceased as
P.W.1 and no doubt in the cross-examination,
admitted the relationship but specifically denied the
suggestion that her husband was not working under
the first respondent and also denied the suggestion
that there was no any relationship of employer and
employee. The other suggestion is that, her husband
was not having valid driving licence was also denied
and instead of got marked the document at Ex.P.1,
driving licence of the deceased. On the other hand,
the Insurance company also examined one witness as
R.W.1 and in the evidence also he says that, the first
respondent and the deceased are the brothers and
also says that, the deceased was not having the
driving licence and he was subjected to cross-
examination. In the cross-examination, he admits
that, he has not produced authorization letter before
the Court to give evidence and however, he admits
that, the policy was in force as on the date of the
accident. It is suggested that, there was an employer
and employee relationship between the deceased and
the respondent No.1 and the same was denied. It is
suggested that, the deceased was having driving
licence and the said suggestion was denied. Having
considered both the oral and documentary evidence
available on record, the respondent No.1 admitted the
ownership and also admitted that the policy was in
force as on the date of the accident and R.W.1 also
admitted that the policy was in force as on the date of
the accident. It is the case of the respondent-
Insurance company that the deceased was not having
the valid driving licence, but claimants have produced
the valid driving licence which is marked as Ex.P.1
before the Court. The main contention of the
Insurance company is that, there was no any
relationship between the employer and employee and
this Court in the Judgment reported in 2017 (2) KCCR
1691, referred supra held that, there is no any
provision under the Act that, it prohibits that son
cannot be employed as driver and claim to be
workman under his father, mother or any other
relative, but in the case on hand, the deceased is
driver under the brother as put forth in the pleading
and also he was working as driver and when the
principles laid down in the Judgment, it is clear that,
there is no any prohibition. This Court also would like
to rely upon the Judgment reported in ILR 2006 Kar.
Prakash Shankar Gourav and another, wherein also
similar question was raised that cleaner employed by
his own father and employer and employee
relationship whether is permissible and in this
Judgment also categorically held that, father engaging
his son as an employee in a vehicle owned by the
father is not prohibited in law nor it can be said that,
such a situation is not normally possible just as in an
other avocation, it is possible for a father to engage
his son as employee. If this preposition is accepted,
the doubt cast on the document filed by the claimants
in support of their contention, do not take much
significance. This Court also would like to rely upon
the Judgment of this Court, in the case of United
India Insurance Company Ltd., Vs. Jonsa and
others, reported in 2001 ACJ 1682 wherein held
that, the death of two sons employed by their father
as coolies in his agricultural land in an accident while
transporting sugarcane the deceased were changing
wheel of tractor when they met with accident and
question was arises whether the finding of the
Commissioner that they were workmen under the Act
could be challenged in appeal and this Court held that,
no and no substantial question of law is involved. This
Court also in the Judgment reported in 2009 Kar MAC
Smt. Mahananda and others, has clearly laid down a
law that there is no prohibition under the Act for the
blood relatives to be employer and employee. Having
considered the principles laid down in the Judgment
referred supra, it is clear that there is no any
provisions under the Act that any prohibition to
employ the blood relatives as driver. In the case on
hand also, the respondent No.1 of the claim petition
was the owner of the vehicle and he had employed his
brother as driver. It is also important to note that, the
complaint was given on the date of the accident itself
in the early morning at 3.30 a.m. and the statement
of the father of the deceased was recorded and the
accident was occurred at 11.45 p.m. in the previous
day, wherein it is specifically stated that his son went
in the lorry to unload the rice bags and the second
spare driver called and informed about the accident
and the deceased was sitting in the cabin in the said
lorry and the spare driver was driving the vehicle and
an accident was occurred and within a span of three
and half hours, the complaint was given and apart
from that, the deceased died at around 1.10 a.m. and
within a span of two hours of the accident, the
complaint was given and in the said complaint it is
stated that the second spare driver was driving the
vehicle and except denying the suggestion that he was
not employed with the respondent No.1 nothing is
elicited from the mouth of the P.W.1 that he was not
working as driver. It is also important to note that,
R.W.1 though in his evidence says that, there was no
any relationship of employer and employee and the
deceased was not having any driving licence, but
records reveals that the deceased was having the
driving licence and the same is marked as Ex.P.1
through P.W.1 and the same is not denied in the
cross-examination of the P.W.1 and P.W.1 also
categorically says that, her husband was having the
driving licence and the suggestion of her husband was
not working as driver with the first respondent was
categorically denied and having taken note of driving
licence is produced before the Court which is not
rebutted by leading any rebuttal evidence by the
Insurance company, the very contention that, he was
not a workman cannot be accepted.
contention that the premium was not paid in respect
of the second driver, but not disputed the fact that,
policy was in force as on the date of the accident and
here it is not the claim made by the second driver and
question of no liability on the part of the Insurance
company does not arise and all the documents
including complaint as well as the pleadings is very
clear that deceased was the driver and driver who was
driving at the time of the accident is the spare driver
and I have already pointed out that the complaint
came to be filed within two hours of the death of the
deceased, wherein, specifically stated that, the driver
who was driving the vehicle at the time of the accident
was the second driver and in the cross-examination of
P.W.1, nowhere it is suggested that the driver who
was driving the vehicle was not working as spare
driver except suggesting that he was not proceeding
in the vehicle as driver and in the evidence of R.W.1
also except stating that there was a relationship of
brother between the respondent No.1 and the
deceased and he was not having driving licence, but
driving licence is produced as Ex.P.1 and hence, it is
clear that, he was the driver along with the other
driver in the said vehicle and the said fact came into
existence immediately after the accident and in order
to prove the contrary, no material is placed before the
Court and not disputes the contents of the document
at Ex.P.1-complaint along with FIR and police have
also investigated the matter and filed the charge-
sheet in terms of Ex.P.2 and the same is also not
challenged. Under the circumstances, the very
contention that, company is not liable cannot be
accepted, though it is contended that no separate
premium is paid, but material available before the
Court that, it is not the case of the claimants that he
was the second driver and the second driver is
different from the deceased and this deceased was
working as driver and policy was also in force as on
the date of the accident and when such being the
case, it is not a fit case to reverse the finding of the
tribunal exonerating the liability of the Insurance
company. No doubt the Judgments which have been
relied upon by the appellant counsel in
Jayachandra’s case, the Court held that, the
claimant injured neither produced driving licence to
prove that, he had licence to drive the heavy goods
vehicle nor examined witness to prove that, he was
travelling as a spare driver, but in the case on hand
already claimants have produced the driving licence of
the deceased to prove that he had driving licence to
drive the heavy goods vehicle and the same has not
been rebutted by the Insurance company and hence,
the Judgment will not comes to the aid of the
Insurance company to exonerate the liability. The
other Judgment relied upon by the Insurance
company which is referred supra i.e.
Laxmindevamma and another case, this Court held
that, the liability cannot be fastened on the Insurer in
he case of gratuitous passengers, on the ground of
breach of terms and conditions of the policy when the
owner of the offending vehicle has not paid the
required premium, but in the case on hand, it is not
the case of the Insurance company that he was a
gratuitous passenger, but only the contention that on
the instructions of his father he was proceeding in the
lorry along with rice bags to unload the same, but he
was not the driver and hence, the Judgment relied
upon by the Insurance company is not applicable to
the facts of the case on hand and hence, I answer
point No.2 as negative.
9. Answer to Point No.3 : In view of the
discussions made above, I pass the following:
The appeal is dismissed. No cost.
The amount in deposit is ordered to be
transmitted to the tribunal, forthwith, to disburse the
amount in favour of the claimants.
The Registry is directed to transmit the TCR, if
any to the concerned tribunal forthwith.
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The Karnataka High Court has reiterated that under the Workmen's Compensation Act, there are no provisions prohibiting blood relatives to be employer and employee.A single judge bench of Justice H P Sandesh sitting at Dharwad dismissed the appeal filed by the Divisional Manager of Oriental Insurance, questioning the order of Workmen's Compensation Commissioner at Koppal by which it...
The Karnataka High Court has reiterated that under the Workmen's Compensation Act, there are no provisions prohibiting blood relatives to be employer and employee.
A single judge bench of Justice H P Sandesh sitting at Dharwad dismissed the appeal filed by the Divisional Manager of Oriental Insurance, questioning the order of Workmen's Compensation Commissioner at Koppal by which it fastened liability on the company in a claim petition filed by the legal heirs of deceased driver Azam Khan, who died in an accident in 2008.
The insurance company argued that the deceased was working for his brother and thus, there was no relationship of employer and employee.
Findings:
The court placed reliance on a coordinate bench judgment in United India Insurance Company Ltd. v. Prakash Shankar Gourav & Anr., ILR 2006 Kar. 1036, where it was held that a father engaging his son as an employee in his vehicle is not prohibited in law. Similarly, in United India Insurance Company Ltd. v. Jonsa & Ors., 2001 ACJ 1682, it was held that Commissioner's finding that two sons employed by their father as coolies in his agricultural land were workmen could not be challenged in appeal.
It also relied on New India Assurance Company Ltd., Vs. Smt. Mahananda and others, 2009 Kar MAC 476 (Kar), wherein it has clearly laid down in law there is no prohibition under the Act for the blood relatives to be employer and employee.
Following which the bench said, "It is clear that there is no any provisions under the Act that any prohibition to employ the blood relatives as driver...Licence is produced before the Court which is not rebutted by leading any rebuttal evidence by the Insurance company, the very contention that he was not a workman cannot be accepted."
Accordingly it dismissed the appeal.
Case Title: THE DIVISIONAL MANAGER, THE ORIENTAL INSURANCE CO., LTD v SAYEEDA KHANAM W/O. LATE AZAM KHAN
Case No: MFA No.25711/2011
Date of Order: 23rd DAY OF SEPTEMBER, 2022
Appearance: M.K.SOUDAGAR, ADVOCATE FOR APPELLANT; M. AMAREGOUDA, ADVOCATE FOR R1; R2 AND R3
|
with the consent of the learned counsel for the rival parties.
(2) The petitioner is one of the two accused persons in
First Information Report (FIR) No. 429 of 2021, dated 24/09/2021,
registered at Police Station, Parva, Taluka–Ghatanji, District–Yavatmal,
for offence under Section 306 read with 34 of the Indian Penal Code,
1860 (IPC). The present writ petition is filed seeking quashing of the
aforesaid FIR and charge-sheet filed in pursuance thereof.
(3) The facts leading up to filing of the present writ
petition are that – one Kavadu Sambhaji Tiple, committed suicide on
14/09/2021 by hanging himself on a tree in an agricultural field,
within the jurisdiction of the aforesaid Police Station. The son-in-law
of the deceased i.e. Mahadev Narayan Kamble caused the FIR to be
registered after 10 days on 24/09/2021, against the petitioner and her
mother. A perusal of the report, leading to registration of the FIR,
shows that it is based almost entirely on the contents of two suicide
notes found on the person of the deceased. The contents of the two
suicide notes are identical, wherein the deceased stated that he was
fed up with life and constrained to take the extreme step because of
the petitioner and her mother. On this basis, the FIR stood registered
and police undertook investigation.
(4) During the course of investigation, the police
recorded statements of witnesses and took the suicide notes on record.
The charge-sheet was filed on 27/11/2021 and it was stated therein
that the material on record pointed towards the guilt of the petitioner
and her mother for offence under Section 306 read with 34 of the IPC.
Much emphasis was placed on the suicide note dated 09/09/2021.
This Court issued notice in the present writ petition, wherein the
respondent No.1 State appeared through the learned Assistant Public
Prosecutor. The respondent No.2 i.e. original informant/ complainant
was served, but he chose not to appear before this Court.
(5) Mr. A. M. Sudame, learned counsel appearing for
the petitioner submitted that even if the FIR, charge-sheet and the
material available on record were to be taken into consideration, the
ingredients of the offence under Section 306 of the IPC were not made
out against the petitioner and that therefore, the FIR and the charge-
sheet deserved to be quashed. It was submitted that, applying the
position of law laid down by the Hon’ble Supreme Court and this Court
in various judgments as regards offence under Section 306 of the IPC,
even if the contents of the suicide note allegedly left behind by the
deceased were to be accepted, ingredients of the offence under Section
306 of the IPC were not made out, because the essential aspect of
abetment as defined under Section 107 of the IPC was absent and it
could not be said that the petitioner before this Court was even prima
facie liable for instigating the deceased to commit suicide. Reference
was made to a number of judgments in support of the aforesaid
contentions, which will be referred to at the appropriate place
(6) The learned counsel for the petitioner referred to
Sections 107 and 306 of the IPC and read the suicide note in detail, to
submit that at worst the contents thereof brought out the anguish of
the deceased in respect of the demands for share in property made by
the co-accused i.e. mother of the petitioner, allegedly at the behest of
the petitioner. It was submitted that the demands made by the mother
of the petitioner, even if at the instigation of the petitioner, could at
worst be said to be demands that the accused persons thought were
genuine and it could not be said that such demands were made with
the intention to drive the deceased to commit suicide. It was further
submitted that there was no proximity between the suicide note, which
was written on 09/09/2021 and the actual act, which took place on
14/09/2021. On this basis it was submitted that the present writ
petition deserved to be allowed.
(7) On the other hand, Mr. S. M. Ghodeswar, learned
APP submitted that the material available on record, particularly the
suicide note, clearly demonstrated that no option was left for the
deceased, but to take the extreme step, because of the aggressive
behavior of the co-accused i.e. mother of the petitioner, due to
instigation on the part of the petitioner. It was submitted that a
perusal of the suicide note and the material available on record with
the charge-sheet demonstrated that prima facie the ingredients of the
offence under Section 306 of the IPC were made out and that the
actions attributed to the petitioner were prima facie covered under the
concept of abetment as per Section 107 of the IPC. By referring to the
various judgments on which the learned counsel appearing for the
petitioner had placed reliance, the learned APP submitted that
ultimately the Court in those cases had concluded in favour of the
accused on facts and that the facts of the present case were
distinguishable, demonstrating that no case was made out for quashing
of the FIR and the charge-sheet. The learned APP also relied upon
judgments to support his arguments and they shall be referred to at
the appropriate place hereinbelow.
(8) In order to appreciate the contentions raised on
behalf of the petitioner as well as the respondent – State, it would be
necessary to refer to Sections 107 and 306 of the IPC which read as
“107. Abetment of a thing — A person abets the doing of a
thing, who — First — Instigates any person to do that
Secondly — Engages with one or more other person or
persons in any conspiracy for the doing of that thing, if an
act or illegal omission takes place in pursuance of that
conspiracy, and in order to the doing of that thing; or
Thirdly — Intentionally aids, by any act or illegal omission,
the doing of that thing.
306. Abetment of suicide — If any person commits suicide,
whoever abets the commission of such suicide, shall be
punished with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to
fine.”
(9) The consideration and analysis of the above quoted
provisions has attracted the attention of the Supreme Court and this
Court in various cases and the judgments rendered by the Courts have
elucidated the essential ingredients of the same and they are guiding
lights for applying the aforesaid provisions to the facts of individual
cases. Before applying the principles that can be culled out from the
said judgments to the facts of the present case, it would be appropriate
to refer to some of them.
(10) This Court is referring to only those judgments
relied upon by the learned counsel for the petitioner where the Courts
were concerned with the question of quashing of FIR/Charge-sheet
under Section 482 of the Cr.P.C. or exercise of power in writ
jurisdiction for quashing of the same and where the accused contended
that the criminal proceedings did not deserve to be continued any
(11) In the case of Swamy Prahalddas Vs. State of M.P.
and another, 1995 Supp (3) SCC 438 , the Supreme Court was
considering a situation where the accused was alleged to have
remarked to the deceased ‘to go and die’ and thereafter, the deceased
committed suicide. Even in such a situation the Supreme Court held
that the allegations, even if they were to be accepted as it is, did not
prima facie reflect mens rea on the part of the accused and it was also
found that the deceased did have time to weigh the pros and cons of
the act by which he ultimately ended his life. It was held that the
accused need not face the charge in such a situation.
(12) In the case of Sanju Alias Sanjay Singh Sengar Vs.
State of M.P., (2002) 5 SCC 371, the Supreme Court was considering a
situation where the deceased had left behind a suicide note, wherein it
was specifically stated that the accused was responsible for his death.
In the said case, the Supreme Court considered the liability of the
accused to face investigation and prosecution under Section 306 of the
IPC, in the context of Section 107 thereof and it was held that the
word “instigate” denotes incitement or urging to do some drastic or
inadvisable action or to stimulate or incite, further holding that
presence of mens rea, therefore, was a necessary concomitant of
instigation. It was found that in the said case the alleged abusive
words were used by the accused against the deceased, two days prior
to the date when the deceased was found hanging. In these
circumstances, the Supreme Court found it fit to quash the criminal
(13) In the case of Madan Mohan Singh Vs. State of
Gujarat and another, (2010) 8 SCC 628, the accused was alleged to
have instigated his driver to commit suicide. There was a suicide note
of 15 pages left behind by the deceased and the accused had
approached the High Court for quashing of the FIR and the criminal
proceedings, but his prayer was rejected, as consequence of which, the
accused was before the Supreme Court seeking relief. The Supreme
Court applied Section 306 read with 107 of the IPC and found that
there has to be proximity between the alleged acts of the accused and
the extreme step taken by the deceased of committing suicide. It was
held that the allegations made and the material ought to be of a
definite nature and not imaginary or inferential. The Supreme Court
went into the suicide note of about 15 pages and found that the
contents thereof expressed the anguish of the deceased, who felt that
his boss (the accused) had wronged him, but it was noted that the
contents fell short of depicting an intentional act on the part of the
accused for driving the deceased to commit suicide. On this basis, the
judgment of the High Court was set aside and the FIR and criminal
proceedings were quashed.
(14) In the case of S.S. Chheena Vs. Vijay Kumar
Mahajan and another, (2010) 12 SCC 190 , the Supreme Court
considered the facts of the said case and after referring to Sections 107
and 306 of the IPC, found that the High Court had erred in not
quashing the criminal proceedings. Reference was made to a series of
judgments on the aspect of abetment, particularly in the context of
instigation. It was observed in the said judgment as follows : -
“25. Abetment involves a mental process of instigating a
person or intentionally aiding a person in doing of a thing.
Without a positive act on the part of the accused to instigate or aid
in committing suicide, conviction cannot be sustained. The
intention of the legislature and the ratio of the cases decided by
this Court is clear that in order to convict a person under Section
306 IPC there has to be a clear mens rea to commit the offence.
It also requires an active act or direct act which led the deceased
to commit suicide seeing no option and that act must have been
intended to push the deceased into such a position that he
committed suicide.
26. In the instant case, the deceased was undoubtedly
hypersensitive to ordinary petulance, discord and differences
which happen in our day-to-day life. Human sensitivity of each
individual differs from the other. Different people behave
differently in the same situation.”
(15) Similarly, in the case of M.Mohan Vs. State
Represented by the Deputy Superintendent of Police, (2011) 3 SCC
626, the Supreme Court held in the context of abetment as follows: -
“44. Abetment involves a mental process of instigating a
person or intentionally aiding a person in doing of a thing. Without
a positive act on the part of the accused to instigate or aid in
committing suicide, conviction cannot be sustained.
45. The intention of the legislature and the ratio of the
cases decided by this court are clear that in order to convict a
person under section 306 IPC there has to be a clear mens rea to
commit the offence. It also requires an active act or direct act
which led the deceased to commit suicide seeing no option and
this act must have been intended to push the deceased into such
a position that he/she committed suicide.”
(16) The Supreme Court in the said case also emphasized
that there ought to be a proximate link between the incidents alleged
against the accused and the suicide by the deceased. On the facts of
the said case, it was found that when the alleged incidents had taken
place about four days prior to the suicide committed by the deceased,
no proximate link could be attributed.
(17) In the case of Vaijnath Kondiba Khandke Vs. State of
Maharashtra and another, (2018) 7 SCC 781 , the Supreme Court took
note of the fact that there were indeed two lines of cases in the context
of quashing of criminal proceedings, when the accused was facing
charge of offence under Section 306 of the IPC. After taking note
thereof, in the said judgment, the Supreme Court held that the accused
may face trial if the material on record prima facie shows that the
situation was created deliberately by the accused so as to drive the
victim to suicide. On the facts of the said case, it was found that the
FIR and the criminal proceedings deserved to be quashed.
(18) In the case of Geo Varghese Vs. State of Rajasthan
and another, 2021 SCC Online SC 873, the Supreme Court held as
“23. What is required to constitute an alleged abetment
of suicide under Section 306 IPC is there must be an allegation of
either direct or indirect act of incitement to the commission of
offence of suicide and mere allegations of harassment of the
deceased by another person would not be sufficient in itself,
unless, there are allegations of such actions on the part of the
accused which compelled the commission of suicide. Further, if
the person committing suicide is hypersensitive and the
allegations attributed to the accused is otherwise not ordinarily
expected to induce a similarly situated person to take the extreme
step of committing suicide, it would be unsafe to hold the accused
guilty of abetment of suicide. Thus, what is required is an
examination of every case on its own facts and circumstances
and keeping in consideration the surrounding circumstances as
well, which may have bearing on the alleged action of the
accused and the psyche of the deceased.”
(19) In the case of Shabbir Hussain Vs. The State of
Madhya Pradesh and Ors. (order dated 26/07/2021 passed in SLP
(Cri.)No.7284/2017), the Supreme Court relied upon earlier judgment
in the case of Amalendu Pal Vs. State of West Bengal, (2010) 1 SCC
707, and held that mere harassment without any positive action on the
part of the accused proximate to the time of occurrence, which led to
the suicide, would not amount to an offence under Section 306 of the
(20) The said position of law was followed by the
Division Bench of this Court in the case of Dilip S/o Ramrao Shirasao
and Ors. Vs. State of Maharashtra and anr. (Criminal Application
(APL) No.332/2016) and the criminal proceedings were quashed. It
was held in the said judgment as follows: -
“20. As has been held by Their Lordships of the Apex
Court that for permitting a trial to proceed against the accused for
the offence punishable under Section 306 of the Indian Penal
Code, it is necessary for the prosecution to at least prima facie
establish that the accused had an intention to aid or instigate or
abet the deceased to commit suicide. In the absence of
availability of such material, the accused cannot be compelled to
face trial for the offence punishable under Section 306 of the
Indian Penal Code. As has been held by Their Lordships of the
Apex Court that abetment involves mental process of instigating
a person or intentionally aiding a person in doing of a thing and
without a positive act on the part of the accused in aiding or
instigating or abeting the deceased to commit suicide, the said
persons cannot be compelled to face the trial. Unless there is
clear mens rea to commit an offence or active act or direct act,
which led the deceased to commit suicide seeing no option or the
act intending to push the deceased into such a position, the trial
against the accused under Section 306 of the Indian Penal Code,
in our considered view, would be an abuse of process of law.”
(21) Much emphasis was placed by the learned APP on
recent judgment of the Supreme Court in the case of Mahendra K.C.
Vs. State of Karnataka and another, (2022) 2 SCC 129 , wherein the
Supreme Court set aside an order passed by the High Court granting
relief of quashing of criminal proceedings in an offence under Section
306 and 107 read with 34 of the IPC. In the said case also, a suicide
note was left behind by the deceased. The Supreme Court reversed the
order of the High Court by reading the suicide note, accepting the
contents as they were and holding that the High Court had erred in
analyzing the same from its own perspective, while examining the
veracity of the allegations. It was held that the approach adopted by
the High Court in the said case was not sustainable, although the
position of law laid down by the Supreme Court in earlier judgments
in the context of Sections 107 and 306 of the IPC, was indeed taken
note of. But, on the facts of the said case, the Supreme Court found
that quashing of criminal proceedings was not justified and that the
accused deserved to face trial.
(22) Similarly, the Supreme Court in the cases of
Didigam Bikshpathi and another Vs. State of A.P., AIR 2008 SC 527,
Munshiram Vs. State of Rajasthan, AIR 2018 SC 1923 and Narayan
Malhari Thorat Vs. Vinayak Deorao Bhagat, AIR 2019 SC 224 , found
on facts and on perusing suicide notes in the said cases that prima
facie ingredients of offence under Section 306 read with 107 of the IPC
were made out and accordingly held against the accused persons.
(23) Therefore, it becomes clear that the principles that
have been laid down by the Supreme Court in the aforementioned
judgments in the context of Sections 107 and 306 of the IPC, have to
be applied to the facts of the individual case to conclude, as to whether
the criminal proceedings deserve to be interdicted at this stage of FIR
and charge-sheet itself or that the accused deserves to face trial.
(24) In order to apply the aforementioned principles laid
down by the Supreme Court and followed by this Court, it would be
necessary to refer to the suicide note in the present case. The material
available on record shows that the oral report lodged by the
informant/complainant was virtually based on the aforementioned
suicide note. A perusal of the suicide note shows that it was dated
09/09/2021, while the actual act of suicide was committed on
14/09/2021. We have noted above that even when there was a gap of
only two days between the incident alleged against the accused and
the actual act of suicide committed by the deceased, the Supreme
Court found that there was no proximate link between the two,
because the deceased had enough time to weigh the pros and cons of
the act of committing suicide.
(25) The suicide note shows that the deceased stated the
(a) The co-accused i.e. Shobha, mother of the petitioner, was
the second wife of the deceased.
(b) Shobha was illiterate and she used to act as per the advice
given by her elder daughter Lata i.e. the petitioner.
(c)Last year it was agreed between Shobha and the deceased
that a fixed deposit of Rs.2,00,000/- would be made in her
name to take care of her expenses.
(d) The petitioner was not happy with the situation and she
asked her mother Shobha (co-accused) to demand
Rs.5,00,000/- from the deceased.
(e) As a consequence, the deceased spoke to his relatives and
when they agreed to help him, the deceased agreed to give
Rs.5,00,000/- to Shobha.
(f) But, the petitioner asked Shobha to increase the demand to
Rs.15,00,000/- or three acres of agricultural land.
(g) The deceased did not have agricultural land and he also
did not have Rs.15,00,000/- and due to this the petitioner
was angry with him and using her mother i.e. co-accused
Shobha, she had started harassing the deceased. The
petitioner was asking her mother Shobha (co-accused) to
threaten the deceased by coming to Dorli.
(h) Shobha did come to Dorli and abused the deceased and
threatened that she will file false report against him, that she
will set herself on fire or take poison and report that the
(i) Shobha was capable of doing the same as she had earlier
lodged some false reports.
(j) Shobha and her daughter i.e. the petitioner had harassed the
deceased. He found no meaning in living any further as
people close to him had turned against him and hence, he was
committing suicide for which he held the accused responsible.
(26) The contents of the suicide note have been heavily
emphasized upon by the learned APP to contend that a prima facie
case regarding ingredients of offence under Section 306 read with 107
of the IPC are clearly made out and that therefore, the petitioner
deserves to face trial.
(27) We have analyzed the contents of the suicide note,
the gist of which is stated hereinabove. We find that the contents of the
suicide note bring out anguish of the deceased as regards the alleged
harassment by the petitioner and her mother. But, it also brings out
the fact that Shobha (co-accused) i.e. mother of the petitioner was the
second wife of the deceased and that at worst the said Shobha (co-
accused) at the behest of the petitioner was making monetary
demands or asking for a share in agricultural land from the deceased.
The informant in the present case is the son-in-law the deceased, who
is married to the daughter of the deceased from his first wife.
(28) As held by the Supreme Court in the case of Geo
Varghese Vs. State of Rajasthan (supra) the Court is required to take
into consideration surrounding circumstances as well, which may have
a bearing on the alleged action of the accused and the psyche of the
deceased. It is significant that in the present case the petitioner,
allegedly through her mother, was making demands towards share in
the agricultural land or monetary relief from the father. We are of the
opinion that such repeated demands or alleged increase in the
demands cannot lead to a finding that prima facie the demands were
being made with the intention of driving the father to commit suicide.
The demand in itself, at worst, may have been unreasonable or a
demand which the father was unable to fulfill, but it would be
stretching things a bit far to reach a finding that the accused as the
daughter, through her mother i.e. co-accused, intentionally acted in
such a manner to drive the deceased to commit suicide. The
surrounding circumstances also indicate that the deceased had two
wives and children from both the wives and it cannot be said that
driving the deceased to commit suicide would have led to any
exclusive gain to the petitioner.
(29) It is also significant, as noted above, that the suicide
note is dated 09/09/2021, while the actual act of committing suicide
took place after about five days on 14/09/2021. There is no
proximate link between the suicide note recording harassment
allegedly at the behest of the petitioner and the extreme step taken by
the deceased on 14/09/2021. The judgment in the case of Mahendra
K.C. Vs. State of Karnataka (supra) of the Supreme Court is
distinguishable on facts, for the reason that there was specific threat of
being killed by rowdies, recorded in the suicide note, which led to
anxiety and fear in the mind of the deceased, but such is not the case
in the present matter.
(30) Applying the position of law clarified by the
Supreme Court in the aforementioned judgments to the facts of the
present case, we are convinced that a case is made out for interdicting
the criminal proceedings, by quashing the FIR and the charge-sheet for
the reason that the material available on record does not indicate that
the petitioner deserves to face trial for alleged offence under Section
306 of the IPC.
(31) In view of the above, the present writ petition is
allowed and the FIR No.429/2021 dated 24/09/2021, as also charge-
sheet bearing No.449/2021 dated 27/11/2021 are quashed, insofar
the petitioner before this Court is concerned.
(32) Rule made absolute in above terms.
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The Nagpur bench of the Bombay High Court has quashed an FIR registered against a woman accused of abetting her father's suicide, observing that it is unlikely that she demanded money from him with the purpose of driving him to commit suicide."We are of the opinion that such repeated demands or alleged increase in the demands cannot lead to a finding that prima facie the demands were being...
The Nagpur bench of the Bombay High Court has quashed an FIR registered against a woman accused of abetting her father's suicide, observing that it is unlikely that she demanded money from him with the purpose of driving him to commit suicide.
"We are of the opinion that such repeated demands or alleged increase in the demands cannot lead to a finding that prima facie the demands were being made with the intention of driving the father to commit suicide", the court held.
Justice Manish Pitale and Justice G. A. Sanap allowed a writ petition for quashing of FIR and observed that it would be 'stretching things a bit far' to conclude that the accused, through her mother, intentionally drove her father to commit suicide.
The petitioner, along with her mother was an accused in the abetment of her father's suicide. The FIR against her was based almost entirely on two identical suicide notes found on the deceased. The deceased stated that he was fed up with his life and had to take the extreme step because of the petitioner and her mother. The petitioner approached the High Court for quashing of the FIR and charge sheets filed against her.
Advocate A. M Sudama for the petitioner submitted that even if contents of suicide note are accepted, the essential element of abetment under section 107 of the IPC was absent. At worst, the demands the petitioner's mother made at the instigation of the petitioner are demands that they thought were genuine. It cannot be said that the demands were made with intention to drive the deceased to commit suicide. Further, there was no proximity between the suicide note and the actual act.
APP S. M. Ghodeswar for the State submitted that the suicide note clearly demonstrates that no option was left for the deceased because of the aggressive behaviour of the co-accused mother of the petitioner due to instigation of the petitioner.
The court noted that the suicide note was dated 9 September 2021 while the actual act of suicide was 14 September 2021.
The court perused the suicide note and said that it brings out the anguish of the deceased from the alleged harassment by the petitioner and her mother. However, it also shows that the co-accused was the second wife of the deceased. She was making monetary demands or asking for a share and agricultural land from the deceased at the behest of the petitioner.
The court relied on the judgment in Geo Varghese v. State of Rajasthan in which the Supreme Court held that the surrounding circumstances which may affect the alleged action of the accused and the psyche of the deceased have to be considered to determine the question of abetment of suicide.
The court said that at worst, the repeated demands were unreasonable and something that the deceased could not fulfill.
The court also noted that the deceased had two wives and children with both wives. Driving him to commit suicide would not have let to any exclusive gain to the petitioner.
As the suicide note is dated September 9 while the actual suicide happened five days later, there is no proximate link between the suicide note alleging harassment at the behest of the petitioner and the extreme step taken by the deceased on September 14, the court further observed.
The court quashed the FIR and the charge sheets against the petitioner.
Case no. – Criminal Writ Petition No. 866 f 2021
Case title – Lata v. State of Maharashtra and Anr.
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This petition is filed under Section 438 of Cr.P.C. praying
to enlarge the petitioner/accused on bail in the event of his
arrest in FOC No.51/2020-21 (Case No.05/2020-21) registered
Gauribidanur now pending in PCR No.56/2020 on the file of
Principal Civil Judge & JMFC., Gauribidarnur, for the offences
punishable under Sections 2, 9, 50 read with 51 of the Wild Life
2. Heard the learned counsel appearing for the
petitioners and the learned High Court Government Pleader
appearing for the respondent/State.
3. This matter was heard and reserved on 10.01.2022.
Having heard the learned counsel appearing for the petitioner
and the learned High Court Government Pleader appearing for
the respondent-State and considering the factual aspects of the
case, it is the case of the prosecution that the respondent –
Deputy Range Forest Officer, Gauribidanur Range, detected the
crime on 08.07.2020 at Hakki-Pikki Colony, Kurudi beat, Hosur
Hobli, Gauribidanur Range. The respondent recovered three
number monitor lizard and three number gray francolin, in the
house of petitioner - Ramesh in the said colony. The respondent
being a public servant under Section 59 of the Wild Life
(Protection) Act, 1972 has filed a complaint under Section 55(b)
read with Section 51 of the Wild Life (Protection) Act, 1972 and
the said case is numbered as PCR No.56/2020-21. The Trial
Court took the cognizance of the said offence and registered a
case and issued summons to the accused vide order dated
15.07.2020 and fixed the date of appearance on 05.10.2020 of
this petitioner. The accused was served with summons and
appeared through his counsel and also sought for exemption by
filing application under Section 205 of Cr.P.C., instead of Section
317 of Cr.P.C., which was allowed by the Trial Court, yet, the
accused remained absent on 06.10.2021. Hence, NBW had been
issued against the accused from time to time. Hence, the
petitioner has approached this Court by filing the present
4. The main contention of the petitioner before this
Court is that no prima facie case is made out against the
petitioner and the very search conducted by the complainant is
not in accordance with Section 50(8) of the Wild Life (Protection)
Act, 1972. As per the complaint without a search warrant the
complainant based on some information allegedly searched the
house of petitioner and conducted seizure under Mahazar and
the very seizure itself is doubtful. The learned Magistrate ought
not to have issued notice to the petitioner and committed an
error in taking cognizance. It is also contended that there is no
any direct evidence and also the alleged lizard had kept in the
vegetable crate outside the house and not inside the house and
the very procedure adopted by the respondent by filing a private
complaint based on the seizure done under a Mahazar and
without any independent witness creates a doubt about the
veracity of the seizure. The Sessions Judge ought to have
admitted the petition filed under Section 438 of Cr.P.C., instead
of rejecting the same. Hence, it requires an interference of this
5. Per contra, the learned High Court Government
Pleader appearing for the State would submit that the very
petition itself is not maintainable and the private complaint is
filed under Section 200 of Cr.P.C., as envisaged under Section
55(b) of the Wild Life (Protection) Act, 1972 read with Section
51 of the Wild Life (Protection) Act, 1972. The respondent being
a public servant under Section 59 of the Wild Life (Protection)
Act, 1972 empowered to file a complaint and the complaint is
also filed in terms of the special enactment. Learned High Court
Government Pleader also would submit that the learned
Magistrate having considered the contents of the complaint and
looking into the material took the cognizance and issued the
summons. The petitioner also appeared through his counsel by
filing a necessary application, which was allowed by the Trial
Court, but he failed to appear before the Trial Court afterwards.
Hence, NBW was issued. Hence, he is not entitled for the relief of
anticipatory bail. Once the accused/petitioner has appeared
before the Trial Court through his Counsel and ought to have
made an application for recalling the order before the Trial Court
instead of invoked Section 438 of Cr.P.C.
6. Having heard the learned counsel appearing for the
petitioner and the learned High Court Government Pleader
appearing for the State, the points that would arise for the
(i) Whether Section 438 Cr.P.C., can be invoked once
the petitioner appeared through the Counsel and
sought for exemption and the same was allowed?
7. Having heard the respective counsel and considering
the material available on record, it is not in dispute that a
private complaint is filed as envisaged under the special
enactment. It is the case of the prosecution that the respondent
has seized three number monitor lizard and three number gray
francolin, in the house of the petitioner - Ramesh in the said
colony. It is also not in dispute that after issuance of summons,
which has been served on the petitioner herein, he had appeared
through Counsel and an exemption was sought under Section
205 of Cr.P.C., instead of Section 317 of Cr.P.C., and the same
was also allowed by the Trial Court, he remained absent
thereafter and NBW was issued against him. It has to be noted
that nowhere in the petition has stated that the counsel was
engaged before the Trial Court and sought for an exemption and
the appearance through counsel has been suppressed by the
8. The learned counsel appearing for the petitioner in
support of his arguments, he contend that upon even though the
petitioner had appeared through his Counsel, he can maintain
the petition under Section 438 of Cr.P.C., and engaging the
counsel and appearing through the Counsel will not take away
the rights of approaching the Court by invoking Section 438 of
9. The learned counsel appearing for the petitioner in
support of his arguments, he relied upon the judgment of the
Apex Court in the case of Niranjan Singh and another v.
Prabhakar Rajaram Kharote and others reported in AIR
1980 SC 785, wherein, the Apex Court discussed with regard to
the custody where the accused had appeared and surrendered
before the Sessions Judge, the Judge would have jurisdiction to
consider the bail application as the accused would be considered
to have been in custody within meaning of Section 439 of
Cr.P.C., and no dispute with regard to the fact that once he
appeared and surrendered before the Court, it amounts to a
custody and he maintain a petition under Section 439 of Cr.P.C.,
and in the judgment also Apex Court interpreted the word
10. The learned counsel also relied upon the judgment of
the Apex Court in the case of Directorate of Enforcement v.
Deepak Mahajan and another reported in AIR 1994 SC
1775, wherein the words ‘arrest’, ‘custody’ and ‘powers’ under
the Act discussed. The Apex Court has also observed that
whether the person is under arrest or not, depends not on the
legality of the arrest, but on whether he has been deprived of his
personal liberty to go wherever he pleases. When used in the
legal sense in connection with criminal offences, an ‘arrest’
consists in the taking into custody of another person under
detaining him to answer a criminal charge or of preventing the
commission of a criminal offence. No doubt, the Apex Court in
both the cases discussed with regard to the meaning of custody
and the word ‘arrest’. But in the case on hand, the Court has to
look into the aspect of whether the petitioner can seek an
anticipatory bail once he appeared through counsel before the
Trial Court and sought for an exemption. The Apex Court in
Niranjan Singh’s case (supra), held that when the accused
appeared and surrendered that he has been in custody and
hence the judgment will not come to the aid of the petitioner.
11. This Court would like to refer to the judgment of this
Court in the case of S.R. Nagaraj v. State of Karnataka
reported in 2011 SCC OnLine Kar 3301, wherein, this Court
has observed that when a private complaint has been lodged and
after investigation charge-sheet has been filed, when the
petitioner after service of summons has appeared before the
Court through an Advocate and has filed an exemption
application. The petitioner instead of seeking bail before the Trial
Court has approached this Court under Section 438 of Cr.P.C.,
which is not maintainable. The issue involved in the matter
before this Court is also similar to the facts of the case. In this
case also, the petitioner appeared through counsel and sought
for an exemption and the said exemption application was also
allowed and permitted to appear him through counsel and once
the Trial Court permitted the petitioner to appear through his
Counsel and allowed the application, the petitioner cannot invoke
Section 438 of Cr.P.C., and can invoke Section 439 of Cr.P.C., if
he does not appear before the Court and whether he had
appeared through Advocate or physically, is not the question and
once availed the benefit before the Trial Court appearing through
counsel and sought for an exemption and the same has been
entertained, question of invoking Section 438 of Cr.P.C., again
does not arise.
12. This Court also would like to refer to the order of this
Court in the case of K. Somasekhar v. State of Karnataka
reported in 2015 SCC OnLine Kar 8412, wherein also similar
circumstances arises. This Court in paragraph No.3 referring to
the judgment of this Court in the case of Venkatachalaiah and
Others v. State of Karnataka, by Kadugodi Police,
Bengaluru and others reported in ILR 2003 KAR 3985, and
the order in Criminal Petition No.23/2013, held that once the
accused appeared before the Trial Court and thereafter on
account of his absence on any later date warrant is issued by the
Court for deliberate absence is concerned, the remedy of
anticipatory bail under Section 438 Cr.P.C. is not available to
such person. However, liberty is reserved to the petitioner to file
necessary application before the Trial Court for recalling the
issuance of NBW.
13. This Court also would like to refer to the Division
Bench Judgment of this Court in Venkatachalaiah’s case
(supra), wherein, discussed with regard to Sections 438(1) and
438(3) of Cr.P.C., and also held that even after filing of charge-
sheet also, the accused can approach the respective Courts
invoking Section 438 of Cr.P.C., but categorically held that in
paragraph No.27 that in the normal course where warrant is
issued in pursuance of filing charge-sheet or issuance of
summons and non-appearance of the party, the remedy under
Section 438(1) of Cr.P.C., is available. It is further observed that
however, we would like to emphasis that where in a criminal
proceeding a party has already appeared once or more than one
date and thereafter does not appear in the Court, the Court in
such circumstances issues non-bailable warrant and the said
warrant issued is in view of the defaulting conduct on the part of
the accused and in such cases a petitioner cannot invoke the
jurisdiction of the Court under Section 438(1) of Cr.P.C. and he
is bound to obey the court order or warrant by first appearing
before the Court and than by satisfying the Court as to the
sufficient cause for his absence, pray for bail under Section 439
14. But in the case on hand, it is not in dispute that the
petitioner had appeared before the Trial Court through an
advocate and also filed an application under Section 205 of
Cr.P.C., instead of 317 of Cr.P.C., seeking an exemption for the
day. It is also not in dispute that the said application was
allowed. Once an application seeking an exemption was allowed,
the petitioner again cannot invoke Section 438 of Cr.P.C., and
instead of filing an application for recalling the warrant issued by
the Court for non-appearance has approached this Court and
also the Trial Court. Apart from that, the appearance of the
petitioner before the Trial Court has been suppressed before this
Court and nowhere in the petition has stated that he had
appeared through the Counsel and only on perusal of the order
of the Trial Court, it is clear that he had appeared through the
Counsel and exemption application was allowed but he did not
appear before the Court. Hence, NBW was issued. When such
being the factual aspects of the case, once he appeared through
the Court, whether it is through Counsel or personally, he cannot
seek again anticipatory bail. The very contention of the learned
counsel for the petitioner is that the petitioner appeared before
the Trial Court through an Advocate is not amount to custody or
an arrest, cannot be accepted and he was permitted to appear
through Counsel and once permitted to appear through counsel
he cannot contend that he had not appeared physically. The
petitioner legally permitted to appear and once he has been
permitted to appear legally he cannot contend that he was not
appeared before the Trial Court and hence petition under Section
438 of Cr.P.C., is not maintainable.
15. The Apex Court also given interpretation with regard
to the custody and for invoking Section 439 of Cr.P.C., and not
for Section 438 of Cr.P.C., and also with regard to the meaning
of arrest discussed in Directorate of Enforcement v. Deepak
Mahajan and another ‘s case (supra), and not the question of
arrest before this Court also. In the case on hand when the
private complaint was filed, the learned Magistrate took the
cognizance and issued the summons. In pursuance of the said
summons he appeared through the Counsel before the Trial
Court. Once he had appeared before the Trial Court he cannot
seek for an anticipatory bail again invoking under Section 438 of
Cr.P.C. This Court in S.R. Nagaraj and K. Somasekhar’s case
(supra), and also considering the principles laid down in
Venkatachalaiah’s case (supra), categorically held that once an
advocate appeared through counsel, he cannot seek for an
anticipatory bail again. When such being the interpretation of
this Court and also the principle laid down in the judgments
referred supra, the petitioner cannot maintain any petition
invoking Section 438 of Cr.P.C. Hence, the petition is liable to
be dismissed.
16. This Court does not want to consider the matter on
merits, whether he is entitled for anticipatory bail or not since
the very maintainability is questioned before this Court and this
Court comes to the conclusion that the petition under Section
438 of Cr.P.C., is not maintainable and an option is given to the
petitioner to approach before the Trial Court by filing necessary
application for recalling of the warrant issued against him as held
by this Court in K.Somasekhar’s case (supra), and seek
appropriate relief.
17. In view of the discussions made above, I pass the
(i) The bail petition is dismissed as not
maintainable.
(ii) The petitioner is given liberty to approach the
Trial Court by filing necessary application for
recalling the warrant issued against him.
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The Karnataka High Court has said that once an accused has appeared before the court, either personally or through his counsel, he cannot seek anticipatory bail by invoking section 438 of the Criminal Procedure Code (CrPC). Justice H P Sandesh thus dismissed the anticipatory bail petition filed by one Ramesh and granted him liberty to approach the Trial Court by filing the...
The Karnataka High Court has said that once an accused has appeared before the court, either personally or through his counsel, he cannot seek anticipatory bail by invoking section 438 of the Criminal Procedure Code (CrPC).
Justice H P Sandesh thus dismissed the anticipatory bail petition filed by one Ramesh and granted him liberty to approach the Trial Court by filing the necessary application for recalling the warrant issued against him.
Case Background:
As per the prosecution case, Deputy Range Forest Officer, Gauribidanur Range, recovered three number monitor lizards and three number gray francolin, in the house of petitioner. He then filed a complaint under Section 55(b) read with Section 51 of the Wild Life (Protection) Act, 1972 before the concerned Magistrate court.
The Trial court took cognizance of the said offence and registered a case and issued summons to the accused, who appeared through his counsel on 05.10.2020 and sought for exemption by filing an application under Section 205 of Cr.P.C. which was allowed by the Trial Court.
However, the accused remained absent subsequently and hence, NBW was issued against him. He then approached the session court seeking anticipatory bail which came to be rejected. Following which he moved the High Court.
Petitioners Submissions:
Advocate Dhiraj A.K, appearing for the petitioner, submitted that no prima facie case was made out against the petitioner and the search conducted by the complainant was not in accordance with Section 50(8) of the Wild Life (Protection) Act, 1972.
It was contended that the complainant based on some information allegedly searched the house of petitioner without a search warrant and conducted a seizure under Mahazar and the very seizure itself is doubtful.
Prosecution opposed the plea:
It was submitted that the petition itself is not maintainable since, once the accused/petitioner has appeared before the Trial Court through his Counsel, he ought to have made an application for recalling the order before the Trial Court instead of invoked Section 438 of Cr.PC.
Court findings:
The bench relied on the judgement of the Karnataka High Court in the case of S.R. Nagaraj v. State of Karnataka reported in 2011 SCC OnLine Kar 3301 and in the case K. Somasekhar v. State of Karnataka reported in 2015 SCC OnLine Kar 8412.
It was held in these cases that once the accused appeared before the Trial Court and thereafter on account of his absence on any later date a warrant was issued by the Court for deliberate absence, the remedy of anticipatory bail under Section 438 Cr.P.C. is not available to such a person.
Taking note of the fact that the petitioner had appeared before the Trial Court through an advocate and also filed an application under Section 205 of Cr.P.C., instead of 317 of Cr.P.C., seeking an exemption for the day, the court said,
"Once an application seeking an exemption was allowed, the petitioner again cannot invoke Section 438 of Cr.P.C., and instead of filing an application for recalling the warrant issued by the Court for non-appearance has approached this Court and also the Trial Court."
The court also considered that the appearance of the petitioner before the Trial Court has been suppressed in the petition. The bench said "When such being the factual aspects of the case, once he appeared through the Court, whether it is through Counsel or personally, he cannot agin seek anticipatory bail."
Following which it held, "The petitioner is legally permitted to appear and once he has been permitted to appear legally he cannot contend that he has not appeared before the Trial Court and hence petition under Section 438 of Cr.P.C., is not maintainable."
Case Title: Ramesh v. State Through Dy RFO
Case No: CRIMINAL PETITION NO.9975/2021
Date of Order: 21st January 2022
Appearance: Advocate Dhiraj A.K for petitioner; Advocate Vinayaka V.S for respondent
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This is an appeal filed under Section 374(2) of the Code of
Criminal Procedure by accused Nos.1 and 2 in S.C.No.1317/2003
on the file of the IInd Additional Sessions Court, Kollam, assailing
conviction and sentence imposed against them as per judgment
dated 12.03.2007. State of Kerala represented by the Public
Prosecutor is the respondent.
2. Heard the learned counsel for the appellants as well as
the learned Public Prosecutor in detail.
It is alleged by the prosecution that the 1 st accused had
married one Suja, the cousin sister of the defacto complainant, in
accordance with the religious rites and customs prevalent in their
community, on 6.2.1999. At the time of marriage, 35 sovereigns of
gold ornaments had been given to Suja and a sum of Rs.2,50,000/-
was promised to be paid as dowry within 2 years from the date of
marriage. Subsequent to the marriage, the above Suja as well as
the 1st accused were lived together as husband and wife in
Village, which is the family house of the 1st accused as well as the
2nd accused, who is the mother of the 1st accused. It is alleged
further that during the stay, the accused had subjected Suja to
cruelty and harassed her demanding the promised dowry which had
not been paid even after one year of the marriage. The 1 st accused
had demanded Suja to go to her house and bring dowry and the 2 nd
accused had asked her to commit suicide if she could not pay
dowry. So the consistent nagging and demand for dowry had
driven Suja to suicide, some time between 9.30 p.m on 13.03.2000
and 4 o' clock in the morning on the next day, by hanging on a fan
hook at the bed room of the residential house of the accused,
Balakrishnavilasom veedu bearig Door No.250 of Ward No.II of
Ummannoor Panchayat. Thus the accused alleged to have
committed the offences punishable under Sections 304(B), 306 r/w
34 of I.P.C.
4. On the above facts, Kottarakkara police registered crime
No.186/2000 and on investigation charge was laid against the
accused under Section 304(B), 306 r/w 34 of I.P.C.
5. The case was committed to the Sessions Court, Kollam
and in turn made over to the IInd Additional Sessions Court, Kollam
and the said Court tried the case after framing charge.
6. During trial, the prosecution adduced evidence by
examining PWs 1 to 11 and marked Exts.P1 to P15. During cross
examination of the prosecution witnesses, Exts.D1 and D2
contradictions were marked on the side of the defence.
7. Though after questioning the accused under Section 313
of Cr.P.C, opportunity was given to adduce evidence, no defence
evidence adduced.
8. On analysing the evidence after hearing both sides, the
trial court found that accused 1 and 2 committed offences under
Section 304(B) and 306 r/w 34 of I.P.C and accordingly they were
sentenced to undergo R.I for a period of 7 years for the offence
under Section 304(B) r/w 34 of I.P.C and to undergo R.I for a
period of 3 years under Section 306 r/w 34 of I.P.C.
9. It is argued by the learned counsel for the appellants that
the trial court convicted the appellants without support of sufficient
evidence and remote evidence given by PW2 and PW3 was given
emphasis to find the commission of the above offences by the
appellants. He also pointed out that Ext.P4 diary, alleged to be
written by the deceased when forwarded to FSL, Ext.P12 report
was given by the expert suggesting that there is probability to write
the diary by the deceased.
10. Repelling this argument, the learned Public Prosecutor
vehemently supported the conviction and sentence and he pressed
for upholding the conviction and sentence, since the prosecution
successfully established commission of offences under Section
304B and 306 of I.P.C.
11. In view of the rival arguments, it is necessary in the
interest of justice to appreciate the evidence in this case.
12. PW1 examined in this case is the cousin brother of Suja.
He deposed about the marriage between the 1st accused and Suja
held on 06.02.1999 at Anupama Auditorium, Chadayamangalam
and the joint residence of the 1st accused and Suja at the
matrimonial home in Odanavattom. His evidence further is that on
14.03.2000 morning Suja died and there were problems in the
marital life. 1st and 2nd accused created problems demanding more
dowry and the 1st accused used to make scenes demanding dowry
under the influence of alcohol. His evidence further is that Suja
committed suicide due to cruelty, demanding more dowry. Ext.P1
marked through PW1 is the F.I statement. PW1 given evidence
further that at the time of marriage 35 sovereigns of gold ornaments
were given to Suja and it was agreed to give Rs.2.5 lakh more
within 2 years as dowry. He deposed further that his statement in
Ext.P1 to the effect that Suja would not commit suicide on the
ground of dowry for the reason that there was 2 years' time for
paying the same is not correct and this portion of his previous
statement was marked as Ext.D1 on the side of the defence.
13. PW2 examined in this case is the mother of Suja. She
deposed before the court that Suja is her daughter and the accused
are the husband and mother in law of Suja. She also deposed about
the marriage between the 1st accused and Suja held on 06.02.1999
and their joint residence at the matrimonial home thereafter.
According to PW2, the marital life of Suja and the 1 st accused was
not satisfactory and the 1st accused used to create problems
demanding dowry after consuming alcohol. According to PW2, at
the time of marriage, 35 sovereigns of gold ornaments were given
and it was agreed to give Rs.2.5 lakh more within 2 years. But the
accused demanded the said amount before 2 years. Though her
daughter demanded the same, money was not given. She deposed
about the cruelty on the part of the accused which led to suicide of
Suja. She deposed about abortion of Suja after 2 to 3 months of the
marriage. She deposed further that gold chain with thali, one ring,
a pair of earrings and an anklet were the items available at the time
of death and the other items of gold ornaments were in the custody
of the accused. When PW2 was confronted about the handwriting
in Ext.P4, a diary alleged to be written by Suja before suicide, she
emphatically denied the same as the hand writing of Suja. Her
evidence further is that the 1st accused maintained relationship with
another lady, by name Elisa, even before the marriage. During
cross examination, PW2 admitted that the 1 st accused and Suja used
to visit her house and they used to stay there for 2 days and PW2
also used to visit the matrimonial home occassionally. PW3
examined in this case is the younger sister of Suja. She also
deposed supporting the evidence of PW2 in the matter of marriage
and its aftermath. According to her, a few days after the marriage,
Suja informed her that there was cruelty on the part of the accused
demanding dowry. She also deposed that the 1 st accused was of
drinking habit and he used to manhandle Suja after consuming
alcohol. PW3 given evidence further that Suja committed suicide
due to harassment of the accused demanding dowry. Further when
Suja became pregnant, the 1st accused pulled her down from the cot
and thereby she had abortion. Suja was hospitalised in this
connection in Kottarakkara. PW3 also given evidence stating that
the husband of PW2 and her father died 17 years prior to the date
of occurrence and the 2 daughters including Suja were looked after
by PW2 by utilising her income as a Peon in Public Works
Department. She also given evidence that PW2 given education to
the daughters and both daughters are graduates. While admitting
the signature of Suja in Ext.P2 series letters, PW3 denied the
handwriting in Ext.P4 diary. She also given evidence supporting
the evidence of PW2 to the effect that the 1 st accused maintained
relationship with another lady by name Elisa and the relationship
was in existence even prior to the marriage of the 1st accused and
14. PW4 examined in this case is the Grama Panchayat
President, Ummannoor. According to him, the accused were his
neighbours and he had put signature in Ext.P3 inquest report
prepared after the death of Suja. He also given evidence that the
autopsy examination of Suja was at MCH, Thiruvananthapuram
and the body was brought to the house of the 1 st accused and later
burried in Chadayamangalam, the house of Suja. He also given
evidence that he participated in the funeral where he could not find
the 1st accused and the other accused.
15. PW5 examined in this case is none other than the
husband of the sister of the 1st accused and the daughter of the 2nd
accused. He had given evidence denying production of Ext.P4
diary alleged to be written by Suja before death. According to
PW5, Ext.P4 diary was taken by the police from the place of
occurrence on the date of occurrence itself. The prosecution case is
that it was PW5, who produced Ext.P4 before the police after a
week from the date of occurrence. In fact, PW5 turned hostile to
the prosecution. PW6 examined in this case was the police
constable at Thenmala police station as on 15.09.2000 and he had
given evidence that he had put signature in Ext.P5 mahazar
prepared for taking custody of Ext.P4 diary when it was produced
by PW5. He also admitted during cross examination that Ext.P5
mahazar is in his own handwriting.
16. PW8 in this case prepared Ext.P3 inquest report while
working as Tahsildar and Executive Magistrate at Kottarakkara
during March, 2000. PW9 examined in this case is Dr.Rema,
Assistant Professor and Deputy Police Surgeon, MCH,
Thiruvananthapuram during March, 2000 and she had given
evidence supporting Ext.P7 postmortem certificate. As per Ext.P7
and as per evidence of PW9, opinion as to cause of death is stated
as “postmortem appearances are consistent with death due to
hanging”. PW10, the then A.S.I of Police Kottarakkara, deposed
about the recording of Ext.P1 statement of PW1 and registration of
crime No.156/2000 under Section 174 Cr.P.C and Ext.P1(a)
marked through him is copy of FIR. He had arrested the 1 st
accused on 2.6.2000. Ext.D1 contradiction stands proved through
PW10. PW11 is the Investigating Officer. He generally supported
the investigation. It seems that the learned Sessions Judge given
much emphasis to the evidence of PW2 and PW3 to find that the
accused herein committed offences under Section 304B, 306 r/w 34
17. Before addressing the question as to whether the
findings entered into by the trial court is justifiable, it is worthwhile
to discuss the essentials required to constitute offences under
Section 304B as well as 306 of I.P.C. Section 304 of I.P.C deals
with dowry death. Section 304B of I.P.C is extracted hereunder:
“304B. Dowry death. -- (1) Where the death of a woman is
caused by any burns or bodily injury or occurs otherwise than under
normal circumstances within seven years of her marriage and it is
shown that soon before her death she was subjected to cruelty or
harassment by her husband or any relative of her husband for, or in
connection with, any demand for dowry, such death shall be called
"dowry death", and such husband or relative shall be deemed to have
caused her death.
Explanation.For the purposes of this sub-section, "dowry" shall
have the same meaning as in section 2 of the Dowry Prohibition Act, 1961
(28 of 1961).
(2) Whoever commits dowry death shall be punished with
imprisonment for a term which shall not be less than seven years but
which may extend to imprisonment for life."
18. Thus the ingredients to constitute an offence under
(a) There was an unnatural death of a woman;
(b) that woman had been married within 7 years preceding
her aforesaid unnatural death, and
(c) soon before her death she was subjected to cruelty or
(i) such cruelty or harassment had been caused to her by
her husband or husband's other relative;
(ii) that such cruelty or harassment was for or in connection
with any demand for dowry.
In all dowry death cases the standard of appreciation of evidence
has to be in the light of the provisions contained in Section 113A of
19. It is relevant to note that when an offence under Section
304B of I.P.C is alleged, the same has a proximate nexus with
Section 113B of the Evidence Act, 1872 which reads as follows:
“Section 113B: Presumption as to dowry death;-- When the
question is whether a person has committed the dowry death of a woman
and it is shown that soon before her death such woman had been subjected
by such person to cruelty or harassment for, or in connection with, any
demand for dowry, the Court shall presume that such person had caused
the dowry death.
Explanation:-- For the purposes of this section, “dowry death”
shall have the same meaning as in section 304B of the Indian Penal Code
(45 of 1860).”
20. Section 113B of the Evidence Act in the later part
mandates drawing of presumptions that the husband or relative of
the husband of the victim girl have caused her death and this
presumption of dowry death corresponds to presumption as to
dowry death envisaged in Section 113B of the Evidence Act, 1872.
Section 304B(1) of the I.P.C, 1860 has 2 limbs. First limb defines
dowry death and the second limb deals with the legal consequence
of occurrence of dowry death namely, that the husband or such
other relative of the husband who soon before the death of the lady
was found to have subjected the lady to cruelty or harassment shall
conclusively be held to be guilty of the offence of dowry death. In
the decision reported in [2015 (8) Scale 270 : AIR 2015 SC 3043 :
2015 Crl.J 4021 (SC)], V.K.Mishra v. State of Uttarakhand, a 3
Judge Bench of the Apex Court while dealing with Section 304B of
IPC and 113B of the Evidence Act, inter alia, held, after referring
another decision reported in [AIR 2015 SC 980], Shersing alias
Partapa v. State of Haryana that the word `shown' instead of
`proved' in Section 304B of I.P.C indicates that the onous cast on
the prosecution would stand satisfied on the anvil of a mere
preponderance of probability. In other words, `shown' would have
to be read upon to mean `proved', but only to the extent of
preponderance of probability. It was held further that in a case of
demand for dowry, independent and direct evidence with regard to
the occurrence is ordinarily not available. That is why the
legislature had introduced Section 113A and 113B in the Evidence
Act by permitting presumptions to be raised in certain
21. In another decision of the Apex Court reported in [AIR
2016 SC 5313 : 2016 KHC 6768] Baijnath & Ors. v. State of
Madhya Pradesh, the Apex Court considered the legislative
mandate to invoke the presumption under Section 113B of the
Evidence Act and held as under:
“33. A conjoint reading of these three provisions, thus predicate
the burden of the prosecution to unassailably substantiate the ingredients of
the two offences by direct and convincing evidence so as to avail the
presumption engrafted in S.113B of the Act against the accused. Proof of
cruelty or harassment by the husband or her relative or the person charged
is thus the sine qua non to inspirit the statutory presumption, to draw the
person charged within the coils thereof. If the prosecution fails to
demonstrate by cogent coherent and persuasive evidence to prove such
fact, the person accused of either of the above referred offences cannot be
held guilty by taking refuge only of the presumption to cover up the
shortfall in proof.
34. The legislative premature of relieving the prosecution of the
rigour of the proof of the often practically inaccessible recesses of life
within the guarded confines of a matrimonial home and of replenishing the
consequential void, by according a presumption against the person
charged, cannot be overeased to gloss – over and condone its failure to
prove credibly, the basic facts enumerated in the Sections involved, lest
justice is the casualty.
35. This Court while often dwelling on the scope and purport of
S.304B of the Code and S.113B of the Act have propounded that the
presumption is contingent on the fact that the prosecution first spell out the
ingredients of the offence of S.304B as in Shindo Alias Sawinder Kaur and
another Vs. State of Punjab – 2011 (11) SCC 517 and echoed in Rajeev
Kumar Vs. State of Haryana – 2013 (16) SCC 640. In the latter
pronouncement, this Court propounded that one of the essential ingredients
of dowry death under S.304B of the Code is that the accused must have
subjected the woman to cruelty in connection with demand for dowry soon
before her death and that this ingredient has to be proved by the
prosecution beyond reasonable doubt and only then the Court will presume
that the accused has committed the offence of dowry death under S.113B of
the Act. It referred to with approval, the earlier decision of this Court in
K.Prema S.Rao v. Yadla Srinivasa Rao – 2003 (1) SCC 217 to the effect
that to attract the provision of S.304B of the Code, one of the main
ingredients of the offence which is required to be established is that “soon
before her death” she was subjected to cruelty and harassment “in
connection with the demand for dowry”.
22. Similarly, in another decision reported in [AIR 2014 SC
227 : 2013 (13) Scale 410], Rajeev Kumar v. State of Haryana, the
Hon'ble Supreme Court referred another decision reported in [AIR
2003 SC 11], K.Prema S.Rao & anr. v. Yadla Srinivasa Rao &
ors. and held as under:
“One of the main ingredients of the offence of dowry death under
section 304-B of the Indian Penal Code, 1860 which is required to be
established is that “soon before the death” the accused must have subjected
a woman to cruelty in connection with demand of dowry.”
23. In the decision reported in [2015 SC 1359], Rajinder
Singh v. State of Punjab, the Apex Court held that “soon before”
in Section 304B, is not synonymous with “immediately before”.
The same proposition is laid by the Apex Court in another decision
reported in [AIR 2021 SC 2627 : 2021 KHC 6284], Satbir Singh
& anr. v. State of Haryana.
24. In the decision reported in [AIR 2004 SC 1714], Baljeet
Singh v. State of Haryana the Apex Court set out the condition
precedent for establishing offence under Section 304B of I.P.C as
a) That a married woman had died otherwise than under
normal circumstances;
b) such death was within 7 years of her marriage; and
c) the prosecution has established that there was cruelty
and harassment in connection with the demand for dowry soon
25. In another decision reported in [AIR 2009 SC 913],
Baldev Singh v. State of Punjab the expression “soon before her
death” used in the substantive section of 304B of I.P.C and Section
113B of the Evidence Act is present with the idea of proximity test.
No definite period has been indicated and the expression “soon
before” is not defined. A reference to expression “soon before” in
Section 114 illustration (a) of the Evidence Act is relevant. It lays
down that a man who is in the possession of goods “soon after
theft” is either the thief or has received the goods knowing the
same to be stolen, unless he can account for his possession. The
determination of the period which can come with the term `soon
before' is left to be determined by the courts depending upon facts
and circumstances of each case. Suffice, however, to indicate that
the expression “soon before” would normally imply that the
interval should not be much between the concerned cruelty or
harassment and the death in question.
26. In the same decision, in para.17 it was observed as
“The law on Section 304-B IPC and Section 113-B of the
Evidence Act has been pithily summarised as follows:
(1) Section 304-B IPC must be interpreted keeping in
mind the legislative intent to curb the social evil of bride burning
and dowry demand.
(2) The prosecution must at first establish the existence
of the necessary ingredients for constituting an offence under
Section 304B IPC. Once these ingredients are satisfied, the
rebuttable presumption of casualty, provided under Section 113B
of the Evidence Act operates against the accused.
(3) The phrase “soon before” as appearing in Section
304B IPC cannot be construed to mean “immediately before”.
The prosecution must establish existence of “proximate and live
link” between the dowry death and cruelty or harassment for
dowry demand by the husband or his relatives.
(4) Section 304B IPC does not take a pigeonhole
approach in categorising death as homicidal or suicidal or
accidental. The reason for such non-categorisation is due to the
fact that death occurring “otherwise than under normal
circumstances” can, in cases, be homicidal or suicidal or
accidental.”
27. In the said judgment while confirming the conviction
imposed by the trial court and the High Court under Section 304B
and under Section 498A of I.P.C, the Apex Court also upheld
acquittal found by the High Court under Section 306 of I.P.C.
28. In another decision reported in [2022 Cri.LJ 2545 : AIR
OnLine 2022 SC 577], Devender Singh and Ors. v. State of
Uttarakhand, another 3 Bench decision, the Apex Court considered
the ingredients of Section 304B of I.P.C within the ambit of Section
113B of the Evidence Act and finally confirmed conviction
imposed against the husband under Section 304B of I.P.C while
acquitting appellants 2 and 3 on the finding that there is no specific
role with regard to the demand of dowry and nor any specific
instances of cruelty and harassment been ascribed to the appellants
2 and 3 except for the general assertion against appellants 2 and 3.
29. In a latest decision of the Apex Court reported in
[(2022) 5 SCC 401], State of Madhya Pradesh v. Jogendra & anr.,
3 Bench of the Apex Court considered the menace of dowry death
while dealing with a case alleging commission of offences under
Section 304B, 498A and Section 306 of I.P.C. In the said case also
the Apex Court in para.9 set forth the following as the most
fundamental constituent for attracting the provisions of Section
304B of I.P.C.
(i) that the death of a woman must have been caused by
burns or bodily injury or occurred otherwise than under normal
(ii) that such a death must have occurred within a period
of seven years of her marriage;
(iii) that the woman must have been subjected to cruelty
or harassment at the hands of her husband, soon before her
(iv) that such a cruelty or harassment must have been for or related
to any demand for dowry.
30. Thus when the four essentials required to prove offence
under Section 304B, viz; (i) death of a woman should have
occurred otherwise than under normal circumstances (ii) within 7
years of her marriage; (iii) soon before her death she should have
been subjected to cruelty or harassment by the accused, and (iv) in
connection with any demand for dowry to presume that the accused
has committed dowry death.
31. Once the prosecution succeeded in establishing that the
death of the lady was the outcome of cruelty or harassment by her
husband or any relative of her husband soon before her death
within a period of 7 years of her marriage, if the accused wants
protection from the said catch, the burden is on him to disprove and
if he fails to rebut the presumption under Section 113B of the
Evidence Act, the court is bound to act on it. To put it differently,
Section 113B of the Evidence Act, casts a reverse burden on the
accused to disprove the prosecution case. Then the question is;
what is the standard of proof in cases involving reverse burden?
The Apex Court considered the same in the decision reported in
[(2008) 16 SCC 417 : 2008 KHC 5054], Noor Aga v. State of
Punjab & anr., while interpreting the provisions of the Narcotic
Drugs and Psychotropic Substances Act, 1985, wherein also a
reverse burden is cast upon the accused. In this judgment, the
Apex Court considered the draconian provisions in the NDPS Act
and it was held that though the Act contains draconian provisions,
it must, however be borne in mind that the Act was enacted having
regard to the mandate contained in international conventions on
narcotic drugs and psychotropic substances. Only because the
burden of proof under certain circumstances is placed on the
accused, the same, by itself, would not render the impugned
provisions unconstitutional. It was concluded in the said judgment
that Sections 35 and 54 are not ultra-vires the Constitution of India
and ultimately it has been held that the constitutionality of a penal
provision placing burden of proof on the accused must be tested on
the anvil of the State's responsibility to protect innocent citizens.
Even then, an initial burden exists upon the prosecution and only
when it stands satisfied, the reverse burden would arise and the
standard of proof required to prove the guilt of the accused on the
prosecution is `beyond all reasonable doubt'. But it is
`preponderance of probabilities' on the accused. Thus the law is
clear on the point that proof of reverse burden shall be discharged
on the basis of `preponderance of probabilities'.
32. In the decision reported in [AIR 2001 SCC 2828],
Satwir Singh v. State of Punjab, the Apex Court considered the
meaning of dowry and it was held that some customary payment in
connection with birth of a child or other ceremonies are prevalent
in different societies. Such payments are not enveloped within the
ambit of “dowry”. Hence, the dowry mentioned in Section 304B
should be any property or valuable security given or agreed to be
given in connection with the marriage.
33. Coming to Section 306 of I.P.C, the ingredients to
constitute an offence under Section 306 may be useful. Section
306 provides as under:
“306. Abetment of suicide.—If any person commits suicide,
whoever abets the commission of such suicide, shall be punished with
imprisonment of either description for a term which may extend to ten
years, and shall also be liable to fine.
Classification of Offence:-- The offence under this section is cognizable,
non-bailable, non-compoundable and triable by Court of Session.
34. In the decision reported in [AIR 1989 SC 378 : (1989) 1
anr. v. State of Haryana, the Apex Court held that in order to
convict any person for instigating any person to commit suicide, it
has to be established that the victim committed suicide.
35. In the decision reported in [(2001) 9 SCC 618 : 2002
SCC (Crl) 1088], Ramesh Kumar v. State of Chattisgarh, the
Apex Court held that Sections 498A and 306, I.P.C are independent
and constitute different offences. Though, depending on the facts
and circumstances of an individual case, subjecting a woman to
cruelty may amount to an offence under Section 498A and may
also, if a course of conduct amounting to cruelty is established
leaving no other option for the woman except to commit suicide,
amount to abetment to commit suicide. However, merely because
an accused has been held liable to be punished under Section
498A, I.P.C, it does not follow that on the same evidence he must
also and necessarily be held guilty of having abetted the
commission of suicide by the woman concerned.
36. Coming to Section 306, wherein also presumption of
abetment is embodied under Section 113A of the Evidence Act,
1872. Section 113A of the Evidence Act, 1872 is extracted
“Section 113-A: Presumption as to abetment of suicide by a
married woman:-- When the question is whether the commission of
suicide by a woman had been abetted by her husband or any relative of
her husband and it is shown that she had committed suicide within a
period of seven years from the date of her marriage and that her husband
or such relative of her husband had subjected her to cruelty, the Court
may presume, having regard to all the other circumstances of the case,
that such suicide had been abetted by her husband or by such relative of
her husband.
Explanation:-- For the purposes of this section, “cruelty” shall
have the same meaning as in section 498A, Indian Penal Code, 1860.”
37. In the decision reported in [2014 CrLJ 2425 : AIR 2014
SC 1782], Mangat Ram v. State of Haryana, the Apex Court held
that a woman may attempt to commit suicide due to various
reasons, such as depression, financial difficulties, disappointment
in love, tired of domestic worries, acute or chronic ailments and so
on and need not be due to abetment.
38. In this case, Ext.P4 diary has been given emphasis by
the accused to rebut the presumption under Section 113B of the
Evidence Act. In Ext.P4, alleged to be written by Suja just before
her death, there is recital to the effect that the husband or his men
had no role in the death and the death was the like of Suja.
According to the accused, the entry in Ext.P4 was written by Suja
just before her death and the same would go to show that the
accused are innocent. The prosecution forwarded the entries in
Ext.P4 with the admitted hand writings of Suja, marked as Ext.P2
series, for comparison to ensure as to whether the text in Ext.P4
was written by Suja before her death. Ext.P12 is the report. As per
Ext.P12 it was reported as under:
“The questioned documents in this case were carefully and
thoroughly examined and compared with standard documents in all
aspects of handwriting identification and detection of forgery with
scientific aids in the State Laboratory at Thiruvananthapuram. The
results of examination are the following.
2. The person who wrote the red enclosed standard
writings stamped and marked A3 to A10 probably also wrote the red
enclosed questioned writings similarly stamped and marked Q1 and
3. It has not been possible to arrive at any conclusion
regarding the authorship of the red enclosed questioned signature
stamped and marked Q1(a) in comparison with the red enclosed
standard writings similarly stamped and marked A3 to A10.”
Thus the evidence as per Ext.P12 does not suggest that the entries
in Ext.P4 are actually written by Suja. The trial court considered
the authenticity of the handwriting in Ext.P4 diary. It has been
observed that evidence of PW5 that the police recovered Ext.P4 on
the date of occurrence from the place of occurrence could not be
believed as it has been established in evidence that PW5 produced
the same before the Investigating Officer and it was taken into
custody as per Ext.P5 mahazar, as categorically deposed by PW6,
who witnessed Ext.P5 recovery mahazar. It has been observed
further that if the deceased had any intention to reveal the cause
which led to her suicide, there was no possibility of the suicide note
being concealed in the almirah which might not come to the
immediate notice of any person entering the room, where Ext.P4
was kept. It has been observed further that the only one writing in
the diary is this suicide note and no other entries could be found in
the diary are reasons to disbelieve Ext.P4. Similarly, the trial court
observed that there was nothing in Ext.P4 to indicate that it was
being used by Suja prior to her death regularly. In fact, in Ext.P4
the only one entry is the disputed text to the effect that Suja
committed suicide on her volition. That apart, Ext.P4 also did not
suggest that Ext.P4 was written by Suja.
39. In fact, the reasons stated by the learned Sessions Judge
to disbelieve Ext.P4 is justifiable and I do agree with the said
40. In this matter, the case advanced in defence right from
the very beginning is that the accused have no responsibility in the
suicide of Suja and Suja had committed suicide out of depression
as she felt that the marriage of her sister PW3, would not take place
as arranged since her relative, who had promised some amount to
41. In this regard, during cross examination of PW2 and
PW3 it had come in evidence that PWs 1 to 3 had visited the
residence of a relative one Prasad in Adoor to invite him for
marriage of PW3. Further, evidence of PWs 1 to 3 would suggest
that they had reached the house of the relative Prasad in Adoor for
collecting the amount offered by him, but the amount was not paid.
However, even on searching cross examination, PWs 1 to 3
emphatically denied the suggestion that Suja committed suicide
arising out of the said depression. It is relevant to note that during
cross examination, PW3 categorically stated that though the money
was not given by Prasad as expected on the date, Prasad agreed to
give the money.
42. The crucial question to be decided is whether Suja was
subjected to cruelty by demanding the offered dowry soon before
the occurrence. Reading the evidence of PW2 and PW3, demand
for the offered dowry soon after the marriage and harassment at the
hands of the 1st accused/1st appellant, repeatedly stated by them
could be gathered. It is pertinent to note that Suja committed
suicide just after one year of the marriage on 14.03.2000, after the
marriage which took place on 06.02.1999. PW2 and PW3 given
evidence that PW2 was employed as Peon in Public Works
Department, Government of Kerala and she had a chitty with
Kerala State Financial Enterprises to conduct the marriage of PW3
and ultimately PW2 stated that the marriage of PW3 was
solemnised on the date earlier fixed. Thus the prosecution
evidence established that Suja committed suicide just after one year
of marriage and soon before her death she was subjected to cruelty
and harassment by the 1st appellant/1st accused and she committed
suicide in consequence thereof. The evidence available does not
suggest cruelty and harassment on the part of the 2nd appellant/2nd
accused in a satisfactory manner.
43. Coming to the facts of this case, as I have already
pointed out, PW2 and PW3 specifically deposed about the demand
for dowry by the 1st accused and cruelty and harassment demanding
the offered dowry soon after the marriage and continuance of the
same thereafter. While so, just after completion of one year of
married life, Suja committed suicide. There is no reason to
disbelieve the categorical evidence given by PW2 and PW3. To be
more explicit, the evidence of PW2 and PW3 along with the other
evidence discussed in detail herein above, categorically established
the four essentials to constitute an offence under Section 304B of
IPC committed by the 1st accused. Similar is the position of the 1 st
accused as far as offence under Section 306 of IPC is concerned.
However, the allegation of cruelty and harassment on the part of
the 2nd accused not fully established in this case. That is to say, the
prosecution not succeeded in establishing that the 2nd accused
committed the offences under Section 304B and 306 of IPC by
convincing evidence. Therefore, I hold that the conviction imposed
on the 1st accused under Section 304B and 306 of IPC would
sustain. As far as the 2 nd accused is concerned, the conviction and
sentence imposed under the above Sections found to be not
44. Though it is the bounden duty of the accused to
disprove the presumption under Section 113B of the Evidence Act,
no convincing evidence forthcoming to rebut the presumption.
Therefore, I am of the view that the trial court convicted the 1 st
appellant/1st accused under Section 304B and 306 of I.P.C, in
accordance with law. However, the conviction and sentence
imposed against the 2nd accused is not with the support of
convincing evidence and, therefore, the said conviction and
sentence are liable to be set aside.
45. Coming to the sentence imposed against the 1 st
appellant/1st accused, Section 304B of I.P.C mandates that whoever
commits dowry death shall be punished with imprisonment for a
term which shall not be less than 7 years, but which may extend to
imprisonment for life. Since the court below imposed the statutory
minimum sentence, the sentence imposed by the Sessions Court for
the offence under Section 304B of I.P.C is not liable to be
interfered and as such the same is confirmed. Similarly, for the
offence under Section 306 of I.P.C, if any person commits suicide,
whoever abets the commission of suicide, shall be punished with
imprisonment of either description for a term which may extend to
10 years and shall also be liable to fine. The Sessions Court
imposed rigorous imprisonment for a period of 3 years for the
offence under Section 306 of I.P.C, without imposing any fine.
The said procedure adopted by the learned Sessions Judge is
illegal. It is to be borne in mind that when the statute imposes
imprisonment and fine, the same shall be read in `conjunctive' and
not `disjunctive'. Therefore, both forms of punishment shall be
imposed. Since there is no statutory minimum sentence for the
offence under Section 306 of I.P.C, I am inclined to reduce the said
sentence for a period of 2 years and impose a fine of Rs.20,000/-
(Rupees Twenty thousand only). In default of payment of fine, the
1st accused shall undergo default rigorous imprisonment for a
46. In the result, this appeal is allowed in part. The
conviction and sentence imposed against the 2 nd accused stand set
aside and the 2nd accused is acquitted for the offences under Section
304B and 306 r/w 34 of I.P.C. The bail bond executed by the 2 nd
appellant/2nd accused shall stand cancelled and she is set at liberty
47. The conviction imposed against the 1st appellant/1st
accused for the offences under Section 304B and 306 r/w 34 of
I.P.C is confirmed while modifying the sentence as under:
i) The 1st appellant/1st accused shall undergo rigorous
imprisonment for a period of 7 years for the offence punishable
under Section 304B of I.P.C.
ii) The 1st appellant/1st accused shall undergo rigorous
imprisonment for a period of one year and to pay fine of
Rs.20,000/- (Rupees Twenty thousand only) for the offence
punishable under Section 306 of I.P.C. In default of payment of
fine, he shall undergo rigorous imprisonment for a period of one
month. Set off is allowed for the period the 1st appellant/1st accused
had been in custody in connection with this crime.
Regarding destruction of M.Os 1 to 4, the order passed by the
Sessions Judge is confirmed.
Bail bond executed by the 1st appellant stands cancelled and
the 1st accused/1st appellant is directed to surrender before the trial
court within 10 days from today to undergo the sentence.
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The Kerala High Court on Tuesday held that merely because an accused is found guilty under Section 498A of the IPC (cruelty), does not imply that he must also be held guilty of abetting his wife's suicide under Section 306 IPC. Justice A. Badharudeen emphasised that Sections 498A (cruelty) and 306 IPC (abetment to suicide) are independent and constitute different offences."Merely because...
The Kerala High Court on Tuesday held that merely because an accused is found guilty under Section 498A of the IPC (cruelty), does not imply that he must also be held guilty of abetting his wife's suicide under Section 306 IPC.
Justice A. Badharudeen emphasised that Sections 498A (cruelty) and 306 IPC (abetment to suicide) are independent and constitute different offences.
"Merely because an accused has been held liable to be punished under Section 498A IPC, it does not follow that on the same evidence he must also and necessarily be held guilty of having abetted the commission of suicide by the woman concerned."
The Court was adjudicating upon an appeal moved by the husband and mother-in-law of a deceased woman, challenging their conviction under Sections 304(B) (dowry death), 306 (abetment of suicide) r/w 34 of IPC by the Sessions Court.
The prosecution case was that 35 sovereigns of gold were given to the deceased at the time of marriage between the couple. A sum of Rs.2.5 lakhs was also promised to be paid as dowry within 2 years. It was alleged that during her stay at the matrimonial house, the deceased was subjected to consistent nagging and demand for dowry by her husband and mother-in-law. According to the prosecution, this eventually drove her to suicide within a year of their marriage.
The husband and mother-in-law were soon booked and questioned, after which they were given an opportunity to adduce evidence but no defence evidence was adduced. Accordingly, the Sessions Court convicted them and sentenced them to rigorous imprisonment.
Challenging this conviction and the sentence, the accused moved the High Court.
Advocates Sasthamangalam S. Ajithkumar, Prabhu Vijayakumar and Renjith B. Marar appearing for the appellants argued that the trial court convicted the appellants without the support of sufficient evidence.
However, Public Prosecutor Maya M.N vehemently supported the conviction and sentence citing that the prosecution had successfully established the commission of offences under Sections 304B and 306 of IPC.
Upon appreciating the evidence in the case, the Court examined the essentials required to constitute an offence of dowry death under Section 304B. The Judge relied on several decisions to lay down the four essentials required to prove the offence of dowry death:
(i) death of a woman should have occurred otherwise than under normal circumstances
(ii) within 7 years of her marriage;
(iii) soon before her death she should have been subjected to cruelty or harassment by the accused, and
(iv) in connection with any demand for dowry to presume that the accused has committed dowry death.
It was found that the prosecution evidence categorically established all these ingredients against the husband and hence, the burden was on him to disprove the same as per Section 113B of the Indian Evidence Act. However, no convincing evidence was forthcoming to rebut the presumption.
Coming to Section 306 IPC, the crucial question to be decided was whether the deceased was subjected to cruelty soon before the occurrence.
It was found that the prosecution evidence clearly established that the wife committed suicide within a year of marriage and soon before her death she was subjected to cruelty and harassment by her husband and she committed suicide in consequence thereof. Therefore, the Judge held upheld the husband's conviction under Section 304B and 306 of IPC.
However, the Court found that the evidence did not suggest cruelty and harassment on the part of the mother-in-law in a satisfactory manner. Therefore, finding that the prosecution failed to establish that the mother-in-law committed the offences under Section 304B and 306 of IPC by convincing evidence, the conviction and sentence imposed against her were set aside.
Regarding the sentence imposed on the husband, the Judge found that the Sessions Court imposed rigorous imprisonment for 3 years under Section 306 of I.P.C, without imposing any fine, which was illegal.
"The said procedure adopted by the learned Sessions Judge is illegal. It is to be borne in mind that when the statute imposes imprisonment and fine, the same shall be read in `conjunctive' and not `disjunctive'. Therefore, both forms of punishment shall be imposed."
Since there is no statutory minimum sentence for the offence under Section 306, the Court reduced the sentence for a period of 2 years and imposed a fine of Rs.20,000.
As such, the appeal was allowed in part.
Case Title: Ajayakumar & Anr. v. State of Kerala
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2. This petition is filed by accused Nos.1 to 4 under Section 482 of Cr.P.C for
quashing criminal proceedings in Crime No.19/2019 registered by Chandra Layout
police station pending on the file of Additional City Civil and Sessions Judge,
Bengaluru in Special C.C. No.1667/2022 for the offences punishable under sections
376, 376(2)(N) of IPC, Sections 5(L), 6 and 17 of POCSO Act and Section 9 and 11
3. Heard learned counsel for the petitioners and learned High Court Government
Pleader for respondent State and learned counsel for respondent No.2.
4. The case of prosecution is that suo moto complaint was registered by Chandra
Layout police on 18.01.2022. It is alleged in the complaint that they received
information from BGS Global hospital that the victim girl came to hospital for medical
check up. She was pregnant and she was also minor, aged about 17 years 2 months.
After receipt of information, the police registered suo moto case against accused
No.1-husband of the victim, accused No.2-father-in-law of the victim, accused No.3-
mother of the victim and accused No.4mother-in-law of the victim. The police
investigated the matter and filed charge sheet. Now the matter is pending before the
Sessions Judge. It is stated that petitioner No.1 is said to have married the victim on
10.10.2021 and she became pregnant. When she became pregnant, she went to
hospital and she was medically examined, wherein it was found that she was minor
aged about 17 years and 2 months and accordingly, charge sheet came to be filed.
5. During pendency of this petition, learned counsel for the parties have filed
I.A.No.1/2022 under Section 320(2)(8) read with section 482 of Cr.P.C. seeking
permission to compound the offence.
6. Learned counsel for the petitioners and learned counsel for respondent No.2
have contended that the petitioners and respondent No.2 are Mohammedans and as
per Mohammedan law, if a girl is aged 15 years and after attaining puberty, they can
perform marriage and accordingly, the marriage was performed. Now the victim has
attained majority and delivered a child, which is two months old. Both the parties have
settled down their issue and therefore, prayed for quashing the criminal proceedings.
In respect of their contentions, a joint affidavit is filed by the petitioners and respondent
No.2 before the Court.
7. Learned counsel for the petitioners has relied upon the judgment of the Punjab
and Haryana High Court in case of MOHD. SAMIM VS. STATE OF HARYANA AND
OTHERS decided in W.P. No.532/2018 (O&M) on 26.09.2018 and also the judgment
of the High Court of Delhi in case of FIJA AND ANOTHER VS. STATE
GOVERNMENT OF NCT OF DELHI AND OTHERS in W.P. (Criminal) No.763/2022
decided on 17.08.2022 and also the judgment of Coordinate Bench of this Court in
8. Having heard learned counsel for the parties, perused the records. The records
reveal that petitioner No.1 is said to be the husband of the victim. The victim was aged
about 17 year and 2 months at the time of her pregnancy, now she has attained
majority and delivered a child. The marriage was said to be an arranged marriage
performed by the parents of the victim as well as accused No.1. Accused Nos.2 and
4 are the in laws of the victim and accused No.3 is said to be the mother of the victim.
The marriage was performed at Mysuru and it was performed according to the
Mohammedan tradition and the marriage certificate was also issued by Masjid
authorities. The High Court of Delhi in a similar situation in Fija's case, cited supra,
has quashed the criminal proceedings considering the POCSO Act as well as IPC and
Child Marriage Restraint Act. The Punjab and Haryana High Court in a similar case in
case of Mohd. Samim, cited supra, has also quashed the proceedings. The
Coordinate Bench of this Court in Criminal Petition No.4172/2022 has taken a similar
view and quashed the criminal proceedings. The joint affidavit of both the parties
shows that the parties have settled the issue in dispute.
9. Considering the facts and circumstances of the case, continuing to allow
criminal proceedings is abuse of process of law and no purpose would be served if
the victim turns hostile during trial and the question of conducting investigation against
the petitioners by the investigation officer is a futile exercise. Therefore, I.A.No.1/2022
filed by the both parties has to be allowed and accordingly, it is allowed. Both the
parties are permitted to settle the dispute and compound the offence.
10. Consequently, criminal petition is allowed. the criminal proceedings pending on
the file of Additional City Civil and Sessions Judge, Bengaluru in Special C.C.
No.1667/2022 for the offences punishable under sections 376, 376(2)(N) of IPC,
Sections 5(L), 6 and 17 of POCSO Act and Section 9 and 11 of Child Marriage
Restraint Act, against petitioners-accused Nos.1 to 4 is hereby quashed.
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The Karnataka High Court has quashed the POCSO case registered against a Muslim man for impregnating his minor wife. The matter was put to rest after a settlement between the accused and the victim, who was married to him as per the Mohammedan Law.
The order was passed by Justice K.Natarajan on 10th October, two days before another single bench of the High Court declared that POCSO Act overrides personal law and thus, the age for involving in sexual activities is 18 years.
The case against the instant Petitioner was instituted on a suo moto complaint registered by Chandra Layout police upon receiving information from BGS Global hospital that the victim girl came to hospital for medical check up, she was pregnant and she was also minor, aged about 17 years 2 months.
The Petitioner argued that as per Mohammedan law, if a girl is aged 15 years and attains puberty, she can perform marriage. Now the victim has attained majority and delivered a child, which is two months old. Both the parties have settled down their issue and therefore, prayed for quashing the criminal proceedings.
The bench relied on the judgement of Punjab and Haryana High Court in the case of Mohd. Samim v. State Of Haryana & Ors., W.P. No.532/2018, and judgment of the Delhi High Court in Fija & Anr. v. NCT of Delhi & Ors., W.P. (Crl) No.763/2022, wherein criminal proceedings considering the POCSO Act as well as IPC and Child Marriage Restraint Act were quashed.
The bench said, "The joint affidavit of both the parties shows that the parties have settled the issue in dispute. Considering the facts and circumstances of the case, continuing to allow criminal proceedings is abuse of process of law and no purpose would be served if the victim turns hostile during trial and the question of conducting investigation against the petitioners by the investigation officer is a futile exercise...Both the parties are permitted to settle the dispute and compound the offence."
Accordingly, it allowed the petition and quashed the proceedings under Sections 376, 376(2)(N) of IPC, Sections 5(L), 6 and 17 of POCSO Act and Section 9 and 11 of Child Marriage Restraint Act..
Case Title: MOHAMMAD WASEEM AHAMAD & Others v. 1 STATE BY CHANDRA LAYOUT POLICE STATION.
Case No: CRIMINAL PETITION NO.5917 OF 2022
Date of Order: 10TH DAY OF OCTOBER, 2022
Appearance: MUZAFFAR AHMED, ADVOCATE for petitioners; B.J. ROHITH, HCGP FOR R1; S. YOGENDRA, ADVOCATE FOR R2S
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P.I. Mr.Vikramsinh Kadam attached to Badlapur East P. Stn. present.
Mr.S.V.Gavand, APP for the State in BA 2057/22.
Mrs.A.A.Takalkar, APP for the State in BA 2058/22.
1. These two applications are filed by the same applicant Shri Sagar
Vilas Tote who is charged for committing offences punishable under
Sections 406 and 420 of the IPC read with Section 3 of the Maharashtra
Protection of Interest of Depositors (In Financial Establishments) Act,
1999. Two distinct C.R.s came to be registered against him; C.R. I-
64/2018 was registered with Bazar Peth Police Station, whereas C.R. I-
11/2018 came to be registered with Badlapur East Police Station. He
came to be arrested in both the C.R.s in the month of June 2018. On
completion of investigation, charge-sheet bearing no. MPID No.01 of
2018 and MPID No.02 of 2018 was filed before the Additional Sessions
2. The prosecution alleged that as far as C.R. registered with
Badlapur Police Station is concerned, the total investment with the
assured interest has been worked out to be Rs.1,07,95,000/-. The
learned counsel for the applicant makes a categorical statement that out
of the amount received by him by way of investment from 15 investors,
he has refunded an approximate amount of Rs.25,22,300/-. As far as
the C.R. registered with Bazar Peth Police Station is concerned which
involves 82 investors, the total amount as per the charge-sheet is worked
out at Rs.4,73,23,260/-. The learned counsel for the applicant makes a
categorical statement by referring to the statements of several victims
which are part of the charge-sheet that he has cleared Rs.2,75,00,000/-
in favour of some of the aggrieved investors the victims in the subject
C.R. The investigation is complete and the charge-sheet is filed.
3. The learned counsel for the applicant seeks his release on two
counts; firstly, on completion of investigation, further incarceration of
the applicant is unnecessary and secondly, he seeks to derive benefit of
Section 436-A of the Cr. P.C. which according to him, entitle him to be
released on bail since on the date of his arrest, he has undergone
imprisonment of four years and three months and the maximum penalty,
which would be imposed upon him on he being convicted for the
offences punishable under Sections 406 and 420 of the IPC read with
Section 3 of the Maharashtra Protection of Interest of Depositors (In
Financial Establishments) Act, 1999, would be of seven years.
The learned counsel for the applicant placed reliance on the latest
decision of the Apex Court in case of Satender Kumar Antil Vs. Central
Bureau of Investigation & Anr. 1 as well as the decision in case of Bhim
Singh Vs. Union of India2 and the decision in case of Hussainara
Khatoon and Others (IV) Vs. Home Secretary, State of Bihar, Patna3.
The learned APP Mr. Gavand and Ms. Takalkar have filed their
respective affidavits and the relief of being released by taking recourse
to Section 436-A of the Cr. P.c. is opposed on the grounds that the
offence involved is serious as the applicant has defrauded several
investors and the amount runs into crores of rupees and since no
property is available for attachment by the police, he do not deserve his
release on bail though admittedly he has undergone imprisonment of
more than four years and three months and the maximum period of
imprisonment which could be imposed upon him by way of punishment
is seven years.
4. Section 436-A of the Cr. P.C. prescribe the maximum period for
1 Miscellaneous Application No. 1849 of 2021
which an under-trial prisoner can be detained and it has been inserted
by Act 25 of 2005 with effect from 23 June, 2006. The provision
prescribe the maximum period for which under trial prisoner can be
detained and it read thus:-
“436A- Maximum period for which an under trial prisoner can
be detained.-
Where a person has, during the period of investigation, inquiry
or trial under this Code of an offence under any law (not being
an offence for which the punishment of death has been
specified as one of the punishments under that law) undergone
detention for a period extending up to one-half of the
maximum period of imprisonment specified for that offence
under that law, he shall be released by the Court on his
personal bond with or without sureties;
Provided that the Court may, after hearing the Public
Prosecutor and for reasons to be recorded by it in writing,
order the continued detention of such person for a period
longer than one-half of the said period or release him on bail
instead of the personal bond with or without sureties;
Provided further that no such person shall in any case be
detained during the period of investigation inquiry or trial for
more than the maximum period of imprisonment provided for
the said offence under that law.”
5. As early as in 1980, the right of under-trial prisoners was
recognized by the Hon’ble Apex Court in a decision of Hussainara
Khatoon and Others (IV) Vs. Home Secretary, State of Bihar, Patna
(supra) and speedy trial was reckoned as an essential ingredient of
‘reasonable fair and just’ procedure guaranteed by Article 21 of the
Constitution. Hon’ble Justice Shri P. N. Bhagwati (as he was then)
underlined the constitutional mandate to provide speedy trial in the
“"Not only those precedents but also reason and reflection
require us to recognise that in our adversary system of criminal
justice, any person haled into court, who is too poor to hire a
lawyer cannot be assured a fair trial unless counsel is provided
for him. This seems to us to be an obvious truth. Governments,
both State and Federal quite properly spend vast sums of
money to establish machinery to try defendants accused of
crime. Lawyers to prosecute are everywhere deemed essential
to protect the public's interest in an orderly society. Similarly,
there are few defendants charged with crime who fail to hire
the best lawyers they can get to prepare and present their
defences. That government hires lawyers to prosecute and
defendants who have the money hire lawyers to defend are the
strongest indications of the widespread belief that lawyers in
criminal courts are necessities, not luxuries. The right of one
charged with crime to counsel may not be deemed fundamental
and essential to fair trials in some countries, but is in ours.
From the very beginning, our state and national constitutions
and laws have laid great emphasis on procedural and
substantive safeguards designed to assure fair trials before
impartial tribunals in which every defendant stands equal
before the law. This noble idea cannot be realised if the poor
man charged with crime has to face his accusers without a
lawyer to assist him."
6. In case of Bhim Singh Vs. Union of India (supra), once again the
principle was reiterated with its emphasis on Section 436A of the Cr.P.C.
where jurisdictional Magistrate/Chief Judicial Magistrate/Sessions
Judge were directed to hold one sitting in a week in each jail/prison for
a limited time so that effect can be given to Section 436A of the Cr.P.C.
Once again in the latest decision in case of Satender Kumar Antil Vs.
Central Bureau of Investigation & Anr. (supra) while recognizing liberty
to be one of the most essential requirements of the modern man, and
quintessence of civilized existence, the highest Court of this country
interpreted the said provision and reiterated its earlier decision in case
of Bhim Singh Vs. Union of India (supra) while recognizing that the said
provision is a substantive one, facilitating liberty, being the core
intendment of Article 21. The Hon’ble Apex Court observed thus:-
“46. Section 436A of the Code has been inserted by Act 25 of
2005. This provision has got a laudable object behind it,
particularly from the point of view of granting bail. This
provision draws the maximum period for which an undertrial
prisoner can be detained. This period has to be reckoned with
the custody of the accused during the investigation, inquiry
and trial. We have already explained that the word ‘trial’ will
have to be given an expanded meaning particularly when an
appeal or admission is pending. Thus, in a case where an
appeal is pending for a longer time, to bring it under Section
436A, the period of incarceration in all forms will have to be
reckoned, and so also for the revision.
47. Under this provision, when a person has undergone
detention for a period extending to one-half of the maximum
period of imprisonment specified for that offense, he shall be
released by the court on his personal bond with or without
sureties. The word ‘shall’ clearly denotes the mandatory
compliance of this provision. We do feel that there is not even
a need for a bail application in a case of this nature
particularly when the reasons for delay are not attributable
against the accused. We are also conscious of the fact that
while taking a decision the public prosecutor is to be heard,
and the court, if it is of the view that there is a need for
continued detention longer than one-half of the said period,
has to do so. However, such an exercise of power is expected to
be undertaken sparingly being an exception to the general
rule. Once again, we have to reiterate that ‘bail is the rule and
jail is an exception’ coupled with the principle governing the
presumption of innocence. We have no doubt in our mind that
this provision is a substantive one, facilitating liberty, being the
core intendment of Article 21. The only caveat as furnished
under the Explanation being the delay in the proceeding
caused on account of the accused to be excluded. This court in
Bhim Singh v. Union of India, (2015) 13 SCC 605, while
dealing with the aforesaid provision, has directed that:
“5. Having given our thoughtful consideration to the
legislative policy engrafted in Section 436-A and large
number of undertrial prisoners housed in the prisons, we
are of the considered view that some order deserves to
be passed by us so that the undertrial prisoners do not
continue to be detained in prison beyond the maximum
period provided under Section 436-A.
6. We, accordingly, direct that jurisdictional Magistrate/
Chief Judicial Magistrate/Sessions Judge shall hold one
sitting in a week in each jail/prison for two months
commencing from 1-10-2014 for the purposes of
effective implementation of Section 436-A of the Code of
Criminal Procedure. In its sittings in jail, the above
judicial officers shall identify the undertrial prisoners
who have completed half period of the maximum period
or maximum period of imprisonment provided for the
said offence under the law and after complying with the
procedure prescribed under Section 436-A pass an
appropriate order in jail itself for release of such
undertrial prisoners who fulfill the requirement of
Section 436-A for their release immediately. Such
jurisdictional Magistrate/Chief Judicial Magistrate/
Sessions Judge shall submit the report of each of such
sittings to the Registrar General of the High Court and at
the end of two months, the Registrar General of each
High Court shall submit the report to the Secretary
General of this Court without any delay. To facilitate
compliance with the above order, we direct the Jail
Superintendent of each jail/prison to provide all
necessary facilities for holding the court sitting by the
above judicial officers. A copy of this order shall be sent
to the Registrar General of each High Court, who in turn
will communicate the copy of the order to all Sessions
Judges within his State for necessary compliance.”
Their Lordships of the Apex Court emphasis that the directions
issued by the Court if not complied fully, are expected to be complied
with in order to prevent the unnecessary incarceration of under-trials,
and to uphold the inviolable principle of presumption of innocence until
proven guilty.
7. In the light of the aforesaid pronouncement as above, which has
enunciated the scope of Section 436A of the Cr.P.C., I do not think that
the seriousness of the accusation would deny him the benefit flowing
from the said section, when his case squarely falls within sub-section (1)
of Section 436A, on having undergone more than half of the period of
maximum imprisonment, which would be imposed upon him by way of
penalty, assuming that he will be convicted for the offences with which
he is charged. The applicant deserves his release on bail. Hence the
(a) Applications are allowed.
(b) Applicant - Sagar Vilas Tote shall be released on bail in
connection with distinct C.R.s i.e. (i) C.R. I-64/2018 registered
with Bazar Peth Police Station and (ii) C.R. I-11/2018 registered
with Badlapur East Police Station on furnishing P.R. Bond to the
extent of Rs.15,000/- each with one or two sureties in the like
amount.
(c) The applicant shall mark his attendance before the
concerned police station on first Monday of every trimester.
(d) The applicant shall not directly or indirectly make any
inducement, threat or promise to any person acquainted with the
facts of the case so as to dissuade him from disclosing the facts to
Court or any Police Officer. The applicant shall not tamper with
evidence.
(e) On being released on bail, the applicant shall furnish his
contact number and residential address to the Investigating Officer
and shall keep him updated, in case there is any change.
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The Bombay High Court granted bail to a businessman accused of duping investors of crores of rupees under the Maharashtra Protection of Interest of Depositors (In Financial Establishments) Act, 1999, observing that gravity of his offence cannot be a reason to deny him benefit of section 436-A of the CrPC.
Under the section, an accused who has undergone one half of the maximum imprisonment he can be awarded for the alleged offence, would be eligible for release on bail, except for special reasons to be recorded in writing.
The bench rejected the prosecution's contention that the accused was involved in a serious offence for duping investors of crores, the police hasn't found any property of his that can be attached, and therefore bail should be denied.
Relying on SC's judgement in Satender Kumar Antil Vs. Central Bureau of Investigation & Anr, Justice Bharati Dangre observed, "In the light of the aforesaid pronouncement... I do not think that the seriousness of the accusation would deny him the benefit flowing from the said section, when his case squarely falls within sub-section (1) of Section 436A, on having undergone more than half of the period of maximum imprisonment…The applicant deserves his release on bail."
In the case at hand the accused had undergone imprisonment of over four years and the maximum punishment that could be imposed on him was seven years. He was facing charges under Sections 406 and 420 of the IPC read with Section 3 of the Maharashtra Protection of Interest of Depositors (In Financial Establishments) Act, 1999. The crime was registered at Badlapur Police station in 2018.
While the prosecution alleged that the total investment with the assured interest has been worked out to be Rs.1,07,95,000, accused Sagar Tote's Advocate Akshay Bafna stated that he had refunded Rs. 25,22,300. In the second FIR out of the total amount of over Rs. 4.73 crore assured to 82 investors, Rs. 2.75 crore was returned.
Regarding the applicability of section 436-A of the CrPC, Bafna relied on the judgements of Satender Kumar Antil Vs. Central Bureau of Investigation, the decision in case of Bhim Singh Vs. Union of India and the decision in case of Hussainara Khatoon and Others (IV) Vs. Home Secretary, State of Bihar, Patna.
Justice Dangre agreed with Bafna's contention and granted bail.
Case Title: Sagar Vilas Tote vs. State of Maharashtra
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Petitioner :- Vishnu Kumar Srivastava (Petitioner In person)
Counsel for Respondent :- C.S.C.
Heard Shri Vishnu Kumar Srivastava, in person in support of
this petition and Shri Amitabh Rai, learned Additional Chief
Standing Counsel representing the State-respondents.
This Public Interest Litigation has been filed with the following
"(i) Issue a writ, order or direction or an appropriate writ
commanding the State Authorities to frame guidelines to come
out with their specific stand whether such publications are
permissible where the credentials of originator of new
items/articles prima-facie under scrutiny which influences the
public in general to believe his covered stories based on his
ulterior motives and accordingly issue appropriate directions to
the Authorities or the same may kindly be issued by this
Hon'ble Court, in the interest of public at large;
(ii) Issue a writ, order or direction in the nature of mandamus
commanding the respondents to constitute an independent
committee/legal body of press and publication for scrutinize the
credentials of originator of new items/article prior to
publication of the news items in order to maintain
credibility/authenticity of the press/media in order to build the
public trust in democratic system.
(iii) Issue a writ, order or direction in the nature of mandamus
commanding the respondents to identify the frivolous and un-
genuine magazine/news-papers, media channels and journalist
and take appropriate legal action against them, whithin the
time so stipulated by this Hon'ble Court.
(iv) Issue a writ, order or direction in the nature of Mandamus
commanding the respondents not to permit such publications
which are not having credentials of being published and being
circulated under valid authority issued under the verified
licenses issued by the respondents in accordance with law in
In sum and substance, the prayers made in this writ petition are
to the effect that appropriate direction be issued to the State
authorities for framing guidelines to regulate various news
media so that the tendency to spread fake, fabricated and
orchestrated news, may be curbed.
What we find is that the prayers made in this petition primarily
lie in realm of policy and the petitioner has thus sought a
direction to the State to frame/come out with a policy to check
such disturbing trend in media.
While we do not intend in any manner to minimize the need of
curbing such menace which is causing more harm to the
society, we are also conscious of the fact that the matter
exclusively lies in the policy making arena, which in our
considered opinion is not the preserve of the Court. At this
juncture, we have been informed that the broader issue raised in
this petition is already engaging attention of Hon'ble Supreme
Court in Writ Petition (Civil) No.787 of 2020; Jamiat Ulama I
Hind & another vs. Union of India and another.
Accordingly, having regard to the nature of prayers made in this
petition and also considering the fact that Hon'ble Supreme
Court is already seized of such matter, we are not inclined to
entertain this writ petition, which is hereby dismissed.
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The Allahabad High Court on Monday observed that the menace of fake, fabricated, and orchestrated news is causing harm to society.The Bench of Justice Devendra Kumar Upadhyaya and Justice Abdul Moin observed this while hearing a plea seeking an appropriate direction to the State authorities for framing guidelines to regulate various news media so that the tendency to spread fake, fabricated,...
The Allahabad High Court on Monday observed that the menace of fake, fabricated, and orchestrated news is causing harm to society.
The Bench of Justice Devendra Kumar Upadhyaya and Justice Abdul Moin observed this while hearing a plea seeking an appropriate direction to the State authorities for framing guidelines to regulate various news media so that the tendency to spread fake, fabricated, and orchestrated news, may be curbed.
However, the Court noted that prayers primarily lie in the realm of policy and are not the preserve of the Court, and therefore, the Court dismissed the plea.
"What we find is that the prayers made in this petition primarily lie in the realm of policy and the petitioner has thus sought a direction to the State to frame/come out with a policy to check such disturbing trend in media," the Court noted.
The Court was also informed that the Apex Court is already seized of such matter in Writ Petition (Civil) No.787 of 2020; Jamiat Ulama I Hind & another vs. Union of India and another.
However, before the Court dismissed the plea, the Court did observe thus:
"While we do not intend in any manner to minimize the need of curbing such menace which is causing more harm to society, we are also conscious of the fact that the matter exclusively lies in the policymaking arena, which in our considered opinion is not the preserve of the Court."
Importantly, while hearing a batch of writ petitions seeking action against the media for communalization of the Tablighi Jamaat meeting in Delhi Nizamuddin Markaz, the Chief Justice of India NV Ramana last week expressed concerns about the attempts in social media and online portals to give communal colour to news.
The CJI lamented that the web portals are not governed by anything and social media companies listen only to powerful people and not to institutions or common people.
"Twitter, Facebook or YouTube...they never respond to us and there is no accountability. About the institutions they have written badly and they don't respond and say this is their right. They only worry about powerful men and not judges, institutions or common man. That is what we have seen," said CJI.
Case title - Vishnu Kumar Srivastava (Petitioner In person) v. State Of U.P.Thru Addl.Chief Secy. Information Lko & Ors
Read Order
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1. Petitioners claim to be engaged in the business of designing,
developing, manufacturing, marketing and/or sale of telecommunications
related products worldwide. According to petitioners, Bharat Sanchar
Nigam Limited (BSNL) invited bids for planning, supply, installation
and commissioning of IMPCS 20/30 Combo Network (Phase V) vide
tender No.: MM/CMTS/032006/000301 dated 22.03.2006 and B&CCS
(Billing and Customer Care System including DR) and COTS Solution,
which were part of overall IMPCS 20/30 network (Phase V) solution
designed by petitioners, were to be delivered to the BSNL as per tender
specifications and requirement. For this purpose, petitioners entered into
PACCHNHW09032002 RUA dated 20.03.2009 with the respondent.
2. During the course of hearing, learned counsel for the petitioners
submitted that Clause 4.4 of the Agreement clearly stipulated that time is
of the essence under the agreement and the respondent is obligated to
follow the project time line and ensure that no delay is there in supply
and implementation; Clause 4.5 of Agreement stipulated that the
respondent was to provide (one) year Operation and Maintenance
support; Clauses 4.6 and 10.3 of the Agreements read with Clause 1.2.1
stipulated that respondent was required to provide three years’ 7X24
warranty services from the date of commissioning of the complete
network in the service area. It was also submitted that respondent was
responsible for bearing all the expenses for repair and replacement of the
supplied solution and provide the same free of charge to the petitioners
during the subsistence of the warranty period. It was also stipulated in
both the Agreements that in case BSNL imposes any penalty on the
petitioners due to delay in restoration/replacement/fixing of the fault with
B&CCS and COTS solution, the respondent shall pay the complete
penalty imposed and also if the respondent has to get the defects
remedied from a third party, that shall be at complete risk and expense of
the respondent.
3. Learned counsel for the petitioners further submitted that based on
the aforesaid agreements and assurances, the petitioners issued four
purchase orders to respondent for hardware implementation, integration
of B&CCS and other components, integration of new element with
billing system and performance tuning with expanded billing system,
disaster recovery and business continuity system, application, software,
drives, modem, printer, web based application with customizable OUI
for data analysis and COTS package. According to petitioners, the
aforesaid work was commissioned after a delay on 25.06.2012 and was
valid till 24.06.2013 and the associated warranted for complete
solution/products supplied was valid till 24.06.2015.
4. Learned counsel next submitted that during the subsistence of
warranty period under the said agreements, BSNL raised several issues
with regard to solution and products supplied by the respondent,
however, respondent in direct breach of its contractual obligation did not
rectify/resolve certain issues. Several e-mails and communications were
made by the petitioners to the respondent during that one year requesting
respondent to fix the issues and admittedly, in a few of the
communications, respondent acknowledged the pending issues and
assured the petitioners that all the issues will be resolved/rectified. In
order to rectify the defects and due to inaction of respondent, petitioners
engaged a Third-Party Vendor and in terms of the agreements, the third
party vendor was wholly at the risk and cost of respondent and the same
was informed to the respondent.
5. According to counsel for petitioners, thereafter meetings were held
between petitioners and respondent on 26.10.2016; 06.12.2016;
15.11.2018 and 27.11.2018 wherein respondent always assured the
petitioners that their team will check the claims of petitioners and revert,
however, respondent failed to perform its contractual obligation.
6. Learned counsel further submitted that due to non-resolution/
rectification of open/pending issues with the Servers and Storage, BSNL
imposed penalty amounting to INR3,62,46,055 on petitioners for the
period 2015-2017, which accrued only due to voluntary inaction, breach
of warranty terms and non-adherence to contractual obligations by the
respondent. Additionally, BSNL has withheld Huawei's Bank Guarantee
(BG) amounting to INR7,72,23,487, which may be encashed by BSNL
due to inaction of respondent.
7. Further, during subsistence of the Agreements respondent did not
avail technical support from ORACLE and petitioners got to know about
it only when it demanded the complete payment of Technical Support
charges from December 2010 onwards from the petitioners before
providing any further service, which respondent is solely liable to pay.
8. Learned counsel for petitioners next submitted that due to
respondent’s inaction to resolve the issues with BSNL and upon failure
of discussions between the parties, petitioners sent Legal Notice dated
21.12.2018 to respondent to come up with resolution plan within seven
days. Though the said letter was replied by the respondent vide
communication dated 03.01.2019, however, it only stated that the
detailed response shall follow, which respondent never did. Thereafter,
petitioners were constrained to send legal notice dated 14.03.2019 to
respondent invoking arbitration under Clause 18 of the Agreements and
proposed name of Justice (Retd.) R.C. Chopra as the sole arbitrator to
adjudicate the disputes and called upon the respondent to consent to the
same. However, the said communication was not replied to and therefore,
this petition has been filed seeking appointment of sole Arbitrator by this
9. On the other hand, learned counsel appearing on behalf of
respondent submitted that the disputes between the parties are not at all
arbitrable and hence, the present petition deserves outright rejection.
Learned counsel submitted that the claims raised by the petitioners are
highly time barred, which purportedly pertain to Agreements dated
20.03.2009, according to which respondent were to provide warranty
services for three years and the cause of action is not a continuous cause
of action and also that the maximum period of three years under the
limitation expired in December, 2017 and, therefore, the present petition
deserves to be rejected on the point of limitation alone. Learned counsel
submitted that even if it is assumed that the purported e-mails were
exchanged between the parties, yet the e-mail was written by the
respondent in the year 2016 and notice invoking arbitration by the
petitioners is of the year 2019 and thereby, this petition fails on
10. Reliance was placed upon Hon’ble Supreme Court’s decision
dated 06.03.2021 in BSNL Vs. Nortel Networks (India) (P) Ltd., (2021)
5 SCC 738 to submit that merely by exchange of letters and discussions,
period of limitation for issuing of notice invoking arbitration, shall not be
extended and also that Section 5 to 20 of the Limitation Act do not
exclude the time taken on settlement discussions. Reliance was also
placed upon another decision of Hon’ble Supreme Court in Geo Miller
SCC 643 to submit that petition under Section 11(6) of the Act was
rejected as the claims were hopelessly time barred.
11. It was submitted by learned counsel for respondent that by filing
this petition, petitioners are trying to revive the dead claims and there is
no continuing cause of action in the present case. Reliance was also
placed upon Hon’ble Supreme Court’s decisions in Balkrishna
Sansthan&Ors. AIR 1959 SC 798 and M. Siddique Vs. Mahant Suresh
Das 2019 SCC OnLine SC 1440 in support of above submissions.
12. Learned counsel next submitted that neither Agreement was
executed nor any breaches were committed within the territorial
jurisdiction of this Court, therefore, this Court has no jurisdiction to
entertain the present petition under the provisions of Section 11 of the
Arbitration and Conciliation Act. It was next submitted that neither of the
parties work for gain at New Delhi; the cause of action has not accrued at
New Delhi; the agreement was not executed in New Delhi but in
Gurgaon and none of the payments has been received in New Delhi,
moreover no breached were committed within the territorial jurisdiction
of this Court, therefore, this Court has no jurisdiction to adjudicate this
petition under Section 11 of the Act.
13. Learned counsel further submitted that the arbitration clause
contained in Para-18.2.1 notes that the place of arbitration shall be New
Delhi and this would not confer any jurisdiction upon this Court to
entertain this petition. It was submitted that seat and venue are two
different legal issues and place of arbitration cannot give the status of the
juridical seat.
14. Learned counsel submitted that all disputes between the parties
were settled in a meeting dated 21.12.2015, whereunder petitioners and
respondent had agreed to liquidate the damages at 6.5% of total Purchase
Order value and thereby, differential amount of INR 16,151,717.51 was
paid by respondent to petitioners on 11.03.2016, which fact is concealed
by the petitioners.
15. To refute petitioners’ claim that the defects were got rectified by a
third party on 19.05.2017 at the risk and cost of respondent, learned
counsel placed reliance upon decision of a Division Bench of this Court
in Ancient Infratech Vs. NBCC wherein it was held that the cause of
action has to have a cut-off date of determination irrespective of letters
demanding completion of work and therefore, rectification of work by a
third party cannot renew the period of limitation.
16. Reliance was also placed upon Hon’ble Supreme Court’s decision
in Sundaram Finance Vs. NoorjhanBiwi 2003 (16) SCC 1 to submit
that where there was a breach in payment of instalments, the limitation
ran from the date of the first default of payment.
17. Learned counsel further submitted that both the Agreements in
question are independent of each other and cannot be bound for the
purpose of Section 11 of the Act. With regard to claims raised by the
petitioners, learned counsel submitted that these are false, baseless and
without any merit. Hence, dismissal of the present petition is sought.
18. In rebuttal, learned counsel for petitioners submitted that
respondent’s plea seeking dismissal of the present petition on the ground
of limitation is to be rejected as even though the warranty period got over
by 24.06.2015, thereafter, petitioners and respondent have been in
continuous exchange of e-mails and holding meetings on regular
intervals from 2015 till 2018. It is only when on 27.11.2018 that the
respondent for the first time declined to rectify the pending issues, the
petitioners sent a legal notice on 21.12.2018 and finally, invoked
arbitration on 14.03.2019. Hence, the claims raised by petitioners cannot
be treated as “dead wood” as stated by respondent. Reliance was placed
upon decisions in BSNL v. Nortel Networks (India) (P) Ltd., (2021) 5
SCC 738 and Vidya Drolia Vs. Durga Trading Corpn. (2021) 2 SCC 1.
19. The arguments advanced by both the sides were heard at length
and the material placed on record as well as decisions relied upon have
been perused.
20. The foremost question which is first required to be answered is
whether this Court has jurisdiction to entertain the present petition.
21. In reply to the present petition, it is averred by the respondent that
since one of the parties to the Agreements is not an Indian national,
therefore, disputes, if any, shall be governed under the international
arbitration as defined under Section 2(f) of the Act and also that the
provisions of Section 11(4) of the Act make it clear that in case where
international commercial arbitration has to take place, only the Hon’ble
Supreme Court shall have the exclusive jurisdiction to appoint the
arbitrator. However, during the course of hearing, no submission was
made in this regard and therefore, this Court has not gone into this
22. Relevantly, it is not disputed that the Cooperation Agreement
dated 20.03.2009 in question contains the arbitration clause, which reads
18.2.1 The Agreement will be governed by the laws
of India All disputes. controversies or claims arising
out of or in connection with or in relation to this
Contract or itsnegotiation, performance, breach,
existence or validity, whether contractual or
tortuous, shall be referred to arbitration in
accordance with the Arbitration and Conciliation
Act, 1996 and conducted by a single Arbitrator to be
appointed by the Parties by mutual consent. The cost
of the arbitration shall be shared by the Parties. The
place of the arbitration shall be New Delhi, India.
The arbitration proceedings shall be conducted in
English language. The award of the arbitration shall
be final and binding against the Parties hereto.
23. The Hon’ble Supreme Court in BGS SGS SOMA JV Vs. NHPC,
“82. On a conspectus of the aforesaid judgments, it
arbitration clause as being the “venue” of the
arbitration proceedings, the expression “arbitration
proceedings” would make it clear that the “venue”
is really the “seat” of the arbitral proceedings, as
the aforesaid expression does not include just one or
more individual or particular hearing, but the
arbitration proceedings as a whole, including the
making of an award at that place. This language has
to be contrasted with language such as “tribunals
are to meet or have witnesses, experts or the
parties” where only hearings are to take place in the
“venue”, which may lead to the conclusion, other
things being equal, that the venue so stated is not the
convenient place of meeting. Further, the fact that
the arbitral proceedings “shall be held” at a
particular venue would also indicate that the parties
intended to anchor arbitral proceedings to a
particular place, signifying thereby, that that place
is the seat of the arbitral proceedings. This, coupled
with there being no other significant contrary
indicia that the stated venue is merely a “venue”
and not the “seat” of the arbitral proceedings,
would then conclusively show that such a clause
designates a “seat” of the arbitral proceedings. In
an international context, if a supranational body of
rules is to govern the arbitration, this would further
be an indicia that “the venue”, so stated, would be
the seat of the arbitral proceedings. In a national
context, this would be replaced by the Arbitration
Act, 1996 as applying to the “stated venue”, which
arbitration.”
24. Hence, the contention of respondent that seat and venue are two
different legal issues and place of arbitration cannot give the status of the
juridical seat, is liable to be rejected and this Court is well within its
jurisdiction to entertain this petition.
25. Another question, which is raised in the present petition is that the
claims raised by the petitioners are ex facie highly time barred. To seek
dismissal of present petition on this ground, respondent has placed
reliance upon various decisions and this Court has gone through the
26. In Geo Miller Vs. Chairman (Supra) relied upon by the
respondent, the final bill was handed over on 10.08.1989; three years
period ended on 10.08.1992; notice invoking arbitration was sent in 2002
and petition under Section 11 was filed in the year 2003 and thereby, the
Hon’ble Supreme Court observed that there was inordinate delay of 14
years and upheld the decision passed by High Court of Rajasthan
dismissing petition under Section 11 of the Act.
27. The decision of Hon’ble Supreme Court in Balkrishna Savalram
Pujari (Supra)andM. Siddique (Supra) relied upon by the respondent,
are distinguishable on facts and is of no assistance to the case in hand.
28. In Vidya Drolia (Supra) relied upon by the petitioners, the
Hon’ble Supreme Court has dealt with the scope of judicial review under
Sections 8 and 11 of the Act.
29. The Hon’ble Supreme Court in BSNL Vs. Nortel Network (India)
(P) Ltd. (Supra)has extensively dealt with the issue of determining
limitation period in filing a petition under Section 11 of the Act as well
as issue whether a Court exercising jurisdiction under Section 11 of the
Act is obligated to appoint an Arbitrator where the claims are ex-facie
time barred.
30. With regard to first issue i.e. determining the period of limitation
in filing petition under Section 11 of the Act, the Hon’ble Supreme Court
in BSNL Vs. Nortel Network(Supra)has held as under:-
“15. It is now fairly well-settled that the limitation
for filing an application under Section 11 would
arise upon the failure to make the appointment of the
arbitrator within a period of 30 days from issuance
of the notice invoking arbitration. In other words, an
application under Section 11 can be filed only after
a notice of arbitration in respect of the particular
claim(s)/dispute(s) to be referred to arbitration [as
contemplated by Section 21 of the Act] is made, and
there is failure to make the appointment.
16. The period of limitation for filing a petition
seeking appointment of an arbitrator(s) cannot be
confused or conflated with the period of limitation
applicable to the substantive claims made in the
underlying commercial contract. The period of
limitation for such claims is prescribed under
various Articles of the Limitation Act, 1963. The
limitation for deciding the underlying substantive
disputes is necessarily distinct from that of filing an
application for appointment of an arbitrator. This
position was recognised even under Section 20 of
the Arbitration Act, 1940. Reference may be made to
the judgment of this Court in J.C.
Budhraja v. Orissa Mining Corpn. Ltd. [J.C.
Budhraja v. Orissa Mining Corpn. Ltd., (2008) 2
SCC 444 : (2008) 1 SCC (Civ) 582] wherein it was
held that Section 37(3) of the 1940 Act provides that
for the purpose of the Limitation Act, an arbitration
is deemed to have commenced when one party to the
arbitration agreement serves on the other party, a
notice requiring the appointment of an arbitrator.
Para 26 of this judgment reads as follows : (SCC p.
claims were in time as on that date.
notice invoking arbitration.
position clear.”
19. The reasoning in all these judgments seems to be
that since an application under Section 11 is to be
filed in a court of law, and since no specific Article
of the Limitation Act, 1963 applies, the residual
Article would become applicable. The effect being
that the period of limitation to file an application
under Section 11 is 3 years from the date of refusal
to appoint the arbitrator, or on expiry of 30 days,
whichever is earlier.”
31. Applying the afore-noted observations to the case in hand, this
Court finds that in the present case, the agreement in question contains an
arbitration clause. For resolution of disputes with regard to work order in
question, petitioners first sent Legal Notice dated 21.12.2018 to
respondent calling upon to provide a resolution plan within seven days,
which was replied by the respondent vide its communication dated
03.01.2019 stating therein the respondent was under the process of
reviewing the allegations and claims raised by the petitioners and a
details response shall be shared shortly. Thereafter, petitioners sent a
legal notice dated 14.03.2019 to respondent invoking arbitration wherein
name of Justice (Retd.) R.C.Chopra was proposed for appointment as
Arbitrator, which was not replied to. The period of limitation of three
years will be counted from the expiry of refusal to reply to appointment
of Arbitrator within 30 days of invoking arbitration by notice, which in
this case shall be 13.04.2019. The present petition was filed before this
Court on 24.05.2019 and in this manner, there is no delay in filing the
present petition.
32. On the second question raised in the present petition by the
respondent that the claims raised by the petitioners are ex facie highly
time barred, reliance was again placed by respondent upon decision in
BSNL Vs. Nortel Network (Supra)to submit that the period of limitation
in issuing the notice of arbitration would not get extended by mere
exchange of letters or mere settlement discussions and the case of
petitioners is a deadwood. Relevantly, in BSNL Vs. Nortel Network
(Supra), the Hon’ble Supreme Court had dealt with a case where the
notice invoking arbitration was issued after 5½ years of rejection of
claims and there was no averment either in the notice of arbitration or the
petition filed under Section 11 of the Act or before the Supreme Court
any intervening facts which would have extended the limitation period.
However, in the said case the Hon’ble Supreme Court on this question
“47. It is only in the very limited category of cases,
where there is not even a vestige of doubt that the
claim is ex facie time-barred, or that the dispute is
non-arbitrable, that the court may decline to make
the reference. However, if there is even the slightest
doubt, the rule is to refer the disputes to arbitration,
otherwise it would encroach upon what is essentially
a matter to be determined by the tribunal.”
33. In view of afore-noted observations of Hon’ble Supreme Court,
this court has once again tested the minute details of this case to find out
whether the claims raised by the petitioners are stale and ex facie time
barred and liable to be rejected.
34. Pertinently, with regard to Agreement dated 20.03.2009, work was
commissioned after a delay on 25.06.2012 and respondent was required
to give one year maintenance and three years operation warranty and so,
the Operation and Maintenance period was valid till 24.06.2013 and the
warranty was valid till 24.06.2015. With regard to issues raised by their
client-BSNL, petitioners had written several e-mails dated 1.09.2015,
08.03.2016, 27.04.2016 and 26.10.2016 to respondent for rectification
and resolution of pending issues and a few of them were replied by the
respondent vide e-mail dated 28.12.2015, 07.01.2016, 03.02.2016.
Besides, both sides held meetings on 15.11.2018 and 27.11.2018. The
first legal notice was sent on 21.12.2018, which was replied by the
respondent 03.01.2019 stating that the detailed response shall be given
and thereafter, on 14.03.2019 notice invoking arbitration was sent by the
petitioners nominating its Arbitrator. However, since the said notice was
not replied to within 30 days, petitioners filed the present petition on
24.05.2019. Without going into the details of these e-mails and minutes
of meeting held between the parties, this Court finds that there has been
continuous cause of action and persistent demand raised on the part of
petitioner and thereby, the claims raised cannot be said to be decayed.
35. So far as plea of respondent that the claims raised by respondent
that all disputes stood already settled in terms recorded in the Minutes of
Meeting dated 21.12.2015 or that there are two distinct agreements
which cannot be consolidated or that the defects which were got
rectified by a third party at the risk and cost of respondent, are questions
of claims which shall be considered and decided by the learned
36. Pertinently, execution of Cooperation Agreement dated 20.03.2009
between the parties; existence of arbitration Clause-18.2 therein and
invocation of arbitration by virtue of notice dated 14.03.2019 is not
disputed. Also, terms of Clause -18.2 the disputes have to be referred to a
37. Accordingly, the present petition is allowed and Mr. Justice G.S.
Sistani (Retd.) Mobile: 9871300034 is appointed the sole Arbitrator to
adjudicate the dispute between the parties.
38. The fee of the learned Arbitrator shall be governed by the Fourth
Schedule of the Arbitration and Conciliation Act, 1996.
39. The learned Arbitrator shall ensure compliance of Section 12 of
Arbitration and Conciliation Act, 1996 before commencing the
40. The present petition and pending application, if any, are
accordingly disposed of.
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The Delhi High Court has held that the Limitation period of 3 years for seeking Appointment of Arbitrator commences from the date of expiry of 30 days period, reckoned from date of issuance of the notice invoking arbitration.Holding thus, it has allowed the Petitioner, Bharat Sachar Nigam Limited (BSNL), to proceed with Arbitration against the Respondent, WIPRO...
The Delhi High Court has held that the Limitation period of 3 years for seeking Appointment of Arbitrator commences from the date of expiry of 30 days period, reckoned from date of issuance of the notice invoking arbitration.
Holding thus, it has allowed the Petitioner, Bharat Sachar Nigam Limited (BSNL), to proceed with Arbitration against the Respondent, WIPRO Limited.
Background
The Petitioner and the Respondent executed Cooperation Agreements. Following expiry of warranty period mentioned therein, the Petitioner raised several issues regarding the products/services provided by the Respondent. In this regard, several emails were exchanged and the parties also met. However, Petitioner claims that the Respondents continued to fail to meet their contractual obligations.
Petitioners sent Legal Notice dated 21.12.2018 to Respondent to come up with resolution plan, however, no proper response was received.
Consequently, the Petitioner sent Legal Notice dated 14.3.2019 to Respondent invoking Arbitration under Clause 18 of the Agreement seeking consent for sole Appointment of Arbitrator. However, the same was not responded to. Thus, the Petitioners approached the Court with this Petition.
The seat of the Arbitration
During the court proceedings, Respondents raised several objections as to the maintainability of the Petition, respecting the jurisdiction of the Court, the expiry of the limitation period for the institution of Petition, the time-barred nature of claims, and objections to the merits of Petitioner's claims.
The jurisdictional claim mainly rested on the issue of the "Seat" of Arbitration. It was contended that the Arbitral Clause contained in Para 18.2.1 mentioned "Place" of Arbitration as New Delhi without specifying the seat. Further, the Agreement was executed in Gurugram, the parties did not work for gain in New Delhi, the payments were not received in Delhi, and the occurrences of the breaches also did not occur in Delhi. Issues of Seat and Venue (Place) being two different things, the Place of Arbitration could not confer the status of Juridical Seat/Jurisdiction of this Court.
Rejecting this submission, the Court cited BGS SGS Soma JV v. NHPC (2020), where it was held that an arbitration clause designating a place of Arbitration as the venue of all arbitration proceedings, it is to be implied as to the seat of the Arbitration. This is in contrast to a clause simply indicating one or more individual hearings at a place, but proceedings as a whole, including the arbitral award. Relying on this, this Court rejected the Petitioner's contention the Court did not have jurisdiction as seat and place are different issues. The Court affirmed its jurisdiction to hear this case on the basis that place of Arbitration in the arbitral clause as New Delhi was indicative of the seat of the Arbitration.
Limitation Period
The Respondent averred that the filing of the Petition ought to be rejected as the claims were time-barred. The Petition, being for the Appointment of an arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996, the Court cited BSNL v. Nortel Network (2021) of the Supreme Court. The Case dealt with the issue of determining the limitation period in filing a petition under Section 11. It was cited that,
"It is now fairly well-settled that the Limitation for filing an application under Section 11 would arise upon the failure to make the Appointment of the arbitrator within a period of 30 days from issuance of the notice invoking Arbitration. In other words, an application under Section 11 can be filed only after a notice of Arbitration in respect of the particular claim(s)/dispute(s) to be referred to Arbitration [as contemplated by Section 21 of the Act] is made, and there is failure to make the Appointment. The period of Limitation for filing a petition seeking Appointment of an arbitrator(s) cannot be confused or conflated with the period of Limitation applicable to the substantive claims made in the underlying commercial contract. The period of Limitation for such claims is prescribed under various Articles of the Limitation Act, 1963. The Limitation for deciding the underlying substantive disputes is necessarily distinct from that of filing an application for Appointment of an arbitrator……. The effect being that the period of Limitation to file an application under Section 11 is 3 years from the date of refusal to appoint the arbitrator, or on expiry of 30 days, whichever is earlier."
Applying this precedent, the Court noted that the Legal Notice invoking Arbitration was dated 14.3.2019. The period of replying to the Legal Notice expired within 30 days of this Notice, i.e., 13.4.2019. The period of Limitation starts from this date and is extended till 3 years. Since the Petition was filed on 24.5.2019, it was held that there was no delay in filing this Petition. Accordingly, the ratio that comes from this holding is: The Period of Limitation of 3 years for filing Petition for Appointment of Arbitrator runs from the date of expiry of the period for replying to a Legal Notice seeking the Appointment by the party.
Time-Barred claims
The Respondent averred that the Petitioner lost its right to cause of action as the claims were time-barred. The Agreement dated 20.3.2009 conferred warranty for 3 years from the date of commissioning. Accordingly, the claims being not arbitrable, ought to be rejected. The Respondents claimed that the maximum period of Limitation expired in December 2017. The Respondent argued that the Petitioner was trying to revive dead claims, and there is no continuing cause of action. Even if the exchange of emails is assumed, since the purported email was sent in 2016 and the Notice invoking Arbitration was in 2019, the period of Limitation had expired.
The Court again referred to BSNL v. Nortel Network. The cited case dealt with a notice of Arbitration issued after 5.5 years of rejection of Arbitration. The Court, in the instant case, distinguished facts to the present case as in the cited case there were no intervening facts in the notice of Arbitration nor the Petition filed under Section 11. Even so, the Court noted the cited Supreme Court's Case's observations regarding purported time bar of arbitrability of claims:
"It is only in the very limited category of cases, where there is not even a vestige of doubt that the claim is ex facie time-barred, or that the dispute is non-arbitrable, that the Court may decline to make ARB.P. 365/2021 Page 19 of 21 the reference. However, if there is even the slightest doubt, the rule is to refer the disputes to Arbitration, otherwise, it would encroach upon what is essentially a matter to be determined by the tribunal."
Applying these observations, this Court found that the facts of this case gave rise to a continuing cause of action, arising from the persistent demands of the Petitioners to seek resolution of disputes within the warranty period. The warranty was till 24.6.2015. Petitioners had raised several emails during this warranty period from 1.9.2015 to 26.10.2016. Meetings held between the parties in 2018 bore no fruit, per the Petitioner's claims. The Petitioner first sent Legal Notice seeking a resolution plan on 21.12.2018. This was replied to on 3.1.2019 with a commitment for future details. However, these were not provided. Accordingly, given the unresolved claims the facts presenting a continuing cause of action due to persistent demands of the Petitioners, the claims were deemed subject to Arbitration per BSNL. All outstanding claims regarding the minute details of emails, outcomes of meetings, etc., by the parties would accordingly be subject to Arbitration.
Held, the Petition was allowed, and Justice (Retd.) G.S. Sistani was appointed as sole arbitrator.
Case Title: Huawei Telecommunications (India) Co. Pvt. Ltd. & Anr v. WIPRO Ltd.
Case No: ARB.P. 365/2019
Coram: Justice Suresh Kumar Kait
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This appeal is filed by the original petitioner to challenge the
judgment of the learned Single Judge dated 10.12.2021. The
appellant was engaged as a constable-driver in CRPF. He was
granted leave from 21.08.2013 to 19.09.2013. He however did
not report for duty on completion of leave period. He remained
unauthorisedly absent without sanction of leave from 20.09.2013
on wards without any intimation to the department. The
departmental enquiry was therefore initiated against him. He did
not participate in the enquiry. Final order was passed by the
(2 of 4) [SAW-333/2022]
disciplinary authority on 10.09.2014 imposing punishment of
dismissal. During the enquiry it appears that the department had
discharged the charge-sheet, list of witnesses, enquiry officer’s
report at all stages but there was no response from the petitioner.
The petitioner had challenged the order of the disciplinary
authority. The appellate authority converted the order of dismissal
to removal from service. Eventually the petitioner approached this
Court and challenged the punishment imposed on him. His petition
was dismissed by the learned Single Judge upon which this appeal
has been filed.
Appearing for the appellant-original petitioner it is submitted
that looking to the long clean service of the petitioner extreme
punishment of removal from service should not have been
imposed. He submitted that the petitioner was suffering from
illness on account of which he could not resume his duties. He
lastly contended that none of the communications of the
department reached to him because the petitioner was not living
at his residence. In support of his contentions he relied on
following decisions:-
(1) In case of Veerendra Kumar Dubey Vs. Chief of Army
Staff and Ors., reported in (2016) 2 Supreme Court Cases
(2) In case of Roop Singh Negi Vs. Punjab National Bank
and Ors., reported in (2009) 2 Supreme Court Cases 570;
(3) In case of Krushnakant B. Parmar Vs. Union of India
and Anr., reported in (2012) 3 Supreme Court Cases 178;
(4) In case of Bhagwan Lal Arya Vs. Commissioner of
Police, Delhi and Ors., reported in 2004 (3) SLR 70;
(3 of 4) [SAW-333/2022]
(5) In case of Chairman-cum-Managing Director, Coal
India Limited and Another. Vs. Mukul Kumar Choudhuri and
Others., reported in (2009) 15 Supreme Court Cases 620.
In our view the petitioner has not made out any case for
interference. We may recall, the petitioner was engaged as
constable of CRPF which is a disciplined force. He remained
unauthorisedly absent without sanctioned leave or communication
to the department for about one year. This was a clear case of
misconduct. Section 10 of the Central Reserve Police Force Act,
1949 (in short ‘the Act’) pertains to less heinous offences and
includes the act of a member of the force of remaining absent
himself without leave, or without sufficient cause overstaying the
leave granted to him. For any such less heinous offences the
punishment prescribed under Section 10 of the said Act is of
imprisonment for a term which may extend to one year or with
fine which may extend to three months’ pay, or with both. Section
11 pertains to minor punishments. Sub-section (1) of Section 11
provides that the commandant or any other authority or officer as
may be prescribed, may, subject to any rules made under the Act,
award in lieu of, or in addition to, suspension or dismissal any one
or more of the punishments to any member of the force whom he
considers to be guilty of disobedience, neglect of duty, or
remissness in the discharge of the duty or any duty or other
misconduct in his capacity as a member of the force. One of the
punishments prescribed is removal from the office.
Thus for the act of remaining absent without leave, under
Section 10 the competent authority could impose a punishment of
imprisonment. Under Section 11 the punishment of dismissal or
(4 of 4) [SAW-333/2022]
removal from service can also be considered. As noted, the
disciplinary authority had imposed the punishment of dismissal
from service which was converted by the appellate authority to
removal from service. These punishments are thus within the
competence of the said authority to impose. The misconduct of
not reporting for duty for over one year without sanctioned leave
was established during the course of enquiry. The petitioner has
not produced any evidence of his suffering from such illness which
prevented him from resuming his duty and which prevented him
from appearing in the departmental enquiry and any rate from
communicating to the department his inability to appear. All
communications were made by the department at his residential
address. Despite which the petitioner did not appear before the
disciplinary authority. The petitioner cannot complain that the
enquiry was conducted ex-parte.
Under the circumstances, we do not find any reason to
interfere. The case of punishment essentially rests with the
disciplinary authority. The Court would not interfere unless the
punishment shocks the conscience of the Court. Reference in this
respect can be made to the decision of the Supreme Court in the
case of B.C. Chaturvedi Vs. Union of India and Ors., reported
in AIR 1996 SC 484.
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The Rajasthan High Court, Jaipur Bench has refused to interfere in the disciplinary authority's decision, which dismissed CRPF Constable-petitioner from service as he did not report for duty on completion of leave period. A division bench of Chief Justice Akil Kureshi and Justice Sudesh Bansal, observed, "In our view the petitioner has not made out any case for interference....
The Rajasthan High Court, Jaipur Bench has refused to interfere in the disciplinary authority's decision, which dismissed CRPF Constable-petitioner from service as he did not report for duty on completion of leave period.
A division bench of Chief Justice Akil Kureshi and Justice Sudesh Bansal, observed,
"In our view the petitioner has not made out any case for interference. We may recall, the petitioner was engaged as constable of CRPF which is a disciplined force. He remained unauthorisedly absent without sanctioned leave or communication to the department for about one year. This was a clear case of misconduct."
Essentially, the appellant-original petitioner was engaged as a constable-driver in CRPF. He was granted leave from 21.08.2013 to 19.09.2013. He, however. did not report for duty on completion of leave period. He remained unauthorisedly absent without sanction of leave from 20.09.2013 onwards, without any intimation to the department. The departmental enquiry was therefore initiated against him. He did not participate in the enquiry. Final order was passed by the disciplinary authority on 10.09.2014 imposing punishment of dismissal.
Later, the appellate authority converted the order of dismissal to removal from service. A writ petition challenging the said orders was dismissed by a Single Bench, following which the present appeal was filed.
The counsel for the appellant-original petitioner submitted that looking at the long clean service of the petitioner, extreme punishment of removal from service should not have been imposed. He submitted that the petitioner was suffering from illness on account of which he could not resume his duties. He lastly contended that none of the communications of the department reached to him because the petitioner was not living at his residence. He also placed reliance on multiple Supreme Court judgments.
Placing reliance on B.C.Chaturvedi v. Union of India [AIR 1996 SC 484], the court observed that the case of punishment essentially rests with the disciplinary authority. The Court would not interfere unless the punishment shocks the conscience of the Court.
After perusal of Section 10 and 11 of the Act, the court opined that the competent authority could impose a punishment of imprisonment for the act of remaining absent without leave, under Section 10 and the punishment of dismissal or removal from service can also be considered under section 11. The court observed that these punishments are thus within the competence of the said authority.
The court noted that the misconduct of not reporting for duty for over one year without sanctioned leave was established during the course of enquiry against the petitioner. The court added that the petitioner has not produced any evidence of his suffering from such illness which prevented him from resuming his duty and which prevented him from appearing in the departmental enquiry and any rate from communicating to the department his inability to appear.
The court also observed that all communications were made by the department at his residential address, despite which the petitioner did not appear before the disciplinary authority. The petitioner cannot complain that the enquiry was conducted ex-parte, added the court.
Adv. M.S. Raghav appeared for the appellant-original petitioner.
Case Title: No. 970250021 Sep/driver Ramraj Meena v. Union of India
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The matter comes up on an application preferred by Shri
Sunil Bhandari representing the respondents seeking dismissal of
the writ petition on the ground of it having been filed without
proper authorization.
The instant writ petition has been filed in representative
capacity on behalf of a Union posed as Income Tax Contingent
Employees Union. The affidavit in support of the writ petition has
been sworn by one Kamal Pal claiming to be a Member and an
authorized person of the Union.
Shri Sunil Bhandari Advocate representing the respondents
has filed an application (I.A.No.1/2021) seeking dismissal of the
writ petition on the ground that none of the Members of the so-
called union whose cause is sought to be agitated in this writ
petition are identifiable. No list of the casual labour who are
alleged to be Members of the Union, has been annexed with the
writ petition. Furthermore, no proper authorization/resolution
passed by the so-called Union for the purpose of filing the Original
Application before the Central Administrative Tribunal or the writ
petition before this Court has been placed on record.
Reliance has been placed by counsel for the respondents on
the order dated 17.11.2011 passed in D.B. Civil Writ
Union & Anr. Vs. A.N. Jha & Anr.” and the order dated
9.7.2019 passed in D.B. Civil Writ Petition No.3798/2019
“Income Tax Contingent Employees Union Vs. Union of
India & Ors.” whereby, this Court has held that such writ
petitions are not maintainable for lack of proper authorization.
Shri Gupta learned counsel representing the petitioners
vehemently relied upon the document Annex.7 claiming that in the
meeting dated 20.3.2015, the Union authorized him (Shri Gupta)
to file the cases on behalf of the Union. He further urged that in
the meeting dated 11.4.2018, Shri Kamal Pal had been authorized
to plead the matters on behalf of the Union. Shri Gupta thus
submits that the writ petition has been presented and is being
pursued under proper authorization.
We have given our thoughtful consideration to the arguments
advanced at the bar and have gone through the material placed
on record.
Suffice it to say that the minutes of the meeting dated
20.3.2015, which have been referred to by Shri Gupta during the
course of his arguments, do not bear signatures of any of the
Members of the Union. Furthermore, no list of the Members of the
Union has been annexed with the writ petition. Shri Jagdish
Solanki claiming to be President of the Union, has authorized Shri
Kamal Pal to file the matters on behalf of the Union in the courts.
However, no resolution of the Union has been filed on record on
the strength whereof, Shri Jagdish Solanki has been authorized to
further authorize Shri Kamal Pal to file the Original Application
before the Central Administrative Tribunal or the instant writ
petition. In similar circumstances, Writ Petition No.2893/2019
filed by the petitioner Union through its so-called President
Jagdish Solanki was dismissed by this Court by order dated
respondent has raised a preliminary objection
pertaining to incorporation of petitioner No. 1 and
authorization/resolution passed by the members of
the Union and authorization given to the Advocate.
The respondent counsel has also brought to the
knowledge of the Court judgment passed by the Co-
ordinate Bench of this Court in DBCWP No.3798/2019
passed on 09.7.2019 wherein relying upon the Rule 7
of the Central Administrative Tribunal Rules of
Practice, 1993 (hereinafter referred to as the Rules of
1993) and after hearing the arguments, this Court has
held that there was non compliance of Rule 7 and in
absence of proper and adequate authorization the
petition was dismissed.”
Hence, we are of the firm view that the writ petition has
been filed without proper authorization/resolution and hence, the
same is not maintainable.
Accordingly, the I.A.No.1/2021 is allowed.
The writ petition is dismissed as not maintainable in absence
of proper authorization.
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The Rajasthan High Court has held that a writ petition filed in representative capacity without proper authorization or resolution is not maintainable. A division bench of Justice Sandeep Mehta and Justice Vinod Kumar Bharwani, observed,"We are of the firm view that the writ petition has been filed without proper authorization/resolution and hence, the same is not maintainable."...
The Rajasthan High Court has held that a writ petition filed in representative capacity without proper authorization or resolution is not maintainable.
A division bench of Justice Sandeep Mehta and Justice Vinod Kumar Bharwani, observed,
"We are of the firm view that the writ petition has been filed without proper authorization/resolution and hence, the same is not maintainable."
In furtherance, the court dismissed the writ petition purportedly filed on behalf of Income Tax Contingent Employees Union as not maintainable, in the absence of proper authorization.
The court relied on a similar issue dealt by the High Court in Income Tax Contingent Employees Union v. A.n. Jha, Finance Secretary [Writ Petition No.2893/2019], wherein writ petition filed by the petitioner Union through its so-called President was dismissed.
In the present case, a writ petition was filed in representative capacity on behalf of a Union posed as Income Tax Contingent Employees Union. The affidavit in support of the writ petition was also sworn by one Kamal Pal claiming to be the Member and an authorised person of the aforesaid Union.
Thereafter, an application was preferred by Advocate Sunil Bhandari, representing the respondents, seeking dismissal of the writ petition on the ground of it having been filed without proper authorization.
The court found that the minutes of the meeting referred to by petitioners does not bear signatures of any of the Members of the Union. The court further observed that no list of the Members of the Union has been annexed with the writ petition.
The court added that Jagdish Solanki, claiming to be President of the Union, has authorised Kamal Pal to file the matters on behalf of the Union in the courts. However, no resolution of the Union has been filed on record on the strength whereof, Shri Jagdish Solanki has been authorised to further authorise Shri Kamal Pal to file the Original Application before the Central Administrative Tribunal or the instant writ petition.
Appearing for the respondents, Adv. Sunil Bhandari contended that no list of the casual labour who are alleged to be Members of the Union, has been annexed with the writ petition. He further argued that no proper authorization/resolution passed by the so-called Union for the purpose of filing the Original Application before the Central Administrative Tribunal or the writ petition before this Court has been placed on record.
He submitted that this Court has held that such writ petitions are not maintainable for lack of proper authorization. In furtherance, he relied on the order dated 17.11.2011 passed in D.B. Civil Writ Petition No.2893/2019 "Income Tax Contingent Employees Union & Anr. Vs. A.N. Jha & Anr." and the order dated 9.7.2019 passed in D.B. Civil Writ Petition No.3798/2019 "Income Tax Contingent Employees Union Vs. Union of India & Ors."
Representing the petitioners, Adv. T.C. Gupta vehemently relied upon the document claiming that in the meeting dated 20.3.2015, the Union authorised him to file the cases on behalf of the Union. He further urged that in the meeting dated 11.4.2018, Shri Kamal Pal had been authorised to plead the matters on behalf of the Union. He also submitted that the writ petition has been presented and is being pursued under proper authorization.
Case Title: Income- Tax Contigent Employees Union and Anr. v. Union Of India and Ors.
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ivil Appeal No. 2183 of 1988.
From the Judgment and Order dated 25.3.1988 of the Allahabad High Court in F.A.F.O. No. 951 of 1987.
N.D.B. Raju and N. Ganapathy for the Appellants.
M.S. Ganesh and Murlidhar for the Respondents.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
The question raised in this appeal relates to the liability of the owner of an insured vehicle to pay compensation for the accident caused by negligence of an unlicensed driver.
The facts which are now found are these.
A constable while returning home after performing his duties was knocked down by a tractor owned by appellant No. 1 Kashiram Yadav.
Appellant No. 2 Raghuraj was then driv ing the tractor.
He had no driving licence.
The widow of the constable and her children claimed compensation from the appellants and the insurer.
The owner resisted the claim contending inter alia that he had already sold the vehicle to a third party and that vehicle was driven by the licensed driver Gaya Prasad at the time of the accident.
Both these facts were not established.
The Tribunal held that Raghuraj Singh was driving the tractor and the accident took place due to his rash and negligent driving and not due to any fault on the part of the constable.
Since Raghuraj Singh had no driving licence, the Tribunal held that the 813 owner of the vehicle alone is liable to pay the compensa tion.
Having reached that conclusion, the Tribunal deter mined the amount of compensation payable to the claimants.
A sum of Rs.96,000 was awarded with interest at the rate of 12 per cent per annum till realisation.
This award of the Tribunal has been affirmed by the High Court.
We are not concerned with the quantum of compensation determined by the Tribunal.
That question has not been agitated before us.
The only contention that was canvassed before us is as to the liability of the insurer to indemnify the owner to satisfy the judgment against him.
Section 96 of the imposes duty on the insurer to satisfy judgments against persons insured in respect of third party risks.
Sub section 2 thereof provides exception to the liability of the insurer.
Sub sec.
2(b) of sec.
96 provides that the insurer is not liable to satisfy the judgments against the persons insured if there has been a breach of a specified condition of the policy.
One of the conditions of the policy specified under clause (ii) is that the vehicle should not be driven by any person who is not duly licensed, or by any person who has been disqualified from holding or obtaining driving licence during the period of disqualification.
It is not in dispute that the certificate of insurance concerned in this case contains this condition.
If, therefore, there is a breach of this condition, the insurer will not be liable to indemnify the owner.
Counsel for the appellants however, submitted that insurer alone would be liable to pay the award amount even though the tractor was not driven by a licensed driver.
In support of the contention, he placed reliance on the deci sion of this Court in Skandia Insurance Co. Ltd. vs Kokila ben Chandravadan and Ors., [1987] 2 SCC 654.
We do not think that that decision has any relevance to the present case.
There the facts found were quite different.
The. vehicle concerned in that case was undisputedly entrusted to the driver who had a valid licence.
In transit the driver stopped the vehicle and went to fetch some snacks from the opposite shop leaving the engine on.
The ignition key was at the ignition lock and not in the cabin of the truck.
The driver has asked the cleaner to take care of the truck.
In fact the driver had left the truck in the care of the clean er.
The cleaner meddled with the vehicle and caused the accident.
The question arose whether the insured (owner) had committed a breach of the condition incorporated in the certificate of insurance since the cleaner operated the vehicle on the fatal occasion without driving licence.
This Court expressed the view that it is 814 only when the insured himself .entrusted the vehicle to a person who does not hold a driving licence, he could be said to have committed preach of the condition of the policy.
It must be established by the Insurance Company that the breach is on the part of the insured.
Unless the insured is at fault and is guilty of a breach of the condition, the insur er cannot escape from the obligation to indemnify the in sured.
It was also observed that when the insured has done everything within his power in as much as he has engaged the licensed driver and has placed the vehicle in his charge with the express or implied mandate to drive himself, it cannot be said that the insured is guilty of any breach.
We affirm and reiterate the statement of law laid down in the above case.
We may also state that without the knowl edge of the insured, if by driver 's acts or omission others meddle with the vehicle and cause an accident, the insurer would be liable to indemnify the insured.
The insurer in such a case cannot take the defence of a breach of the condition in the certificate of insurance.
But in the present case, the onus of the insurer has been discharged from the evidence of the insured himself.
The insured took a positive defence stating that he was not the owner of the vehicle since he had already sold the same to a third party.
This has not been proved.
Secondly, he took a defence stating that the vehicle at the relevant time was driven by a licensed driver, Gaya Prasad, (PW 2).
This was proved to be false:There is no other material even to indicate that the vehicle was entrusted to the licensed driver on the date of the fatal accident.
With these distin guishing features in the present case, we do not think that the ratio of the decision in Skandia Insurance Co. Ltd. 's case could be called to aid the appellants.
In the result, the appeal fails and is dismissed.
In the facts and circumstances of the case, we make no order as to costs.
G.N. Appeal dismissed.
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A Constable while returning home after performing his duties was knocked down by a tractor owned by appellant No. 1, and driven by appellant No. 2 who had no driving licence.
As a result of the accident, the Constable died and his widow and children claimed compensation, before the Tribu nal.
Awarding a compensation of Rs.96,000 the Tribunal held that at the time of the accident the vehicle belonged to appellant No. 1 and was driven by appellant No. 2, who had no driving licence, that the accident took place due to his rash and negligent driving, and appellant No. 1 alone was liable to pay the compensation.
The appellant has come in appeal, by special leave, contending that the insurer alone would be liable to pay the compensation amount, even though the tractor was not driven by a licensed driver.
Dismissing the appeal, HELD: 1.
Section 96 of the imposes a duty on the insurer to satisfy judgments against persons insured in respect of third party risks.
Sub section 2 thereof provides exception to the liability of the insur er.
Sub sec.
2(b) of sec.
96 provides that the insurer is not liable to satisfy the judgments against the persons insured if there has been a breach of a specified condition of the policy.
One of the conditions of the policy specified under clause (ii) is that the vehicle should not be driven by any person who is not duly licensed or by any person, who has been disqualified from holding or obtaining driving licence, during the period of disqualification.
It is not in dispute that the certificate of insurance concerned in this case contains this condition.
If, therefore, there is a breach of this condition, the insurer will not be liable to indemnify the owner.
[813C E] 812 2.
In the present case, the onus of the insurer has been discharged from the evidence of the insured himself.
The insured took a positive defence stating that he was not the owner of the vehicle since he had already sold the same to a third party.
This had not been proved.
Secondly, he took a defence stating that the vehicle at the relevant time was driven ' by a licensed driver.
This was proved to be false.
There is no other material even to indicate that the vehicle was entrusted to the licensed driver on the date of the fatal accident.
[814D F] Skandia Insurance Co. Ltd. vs Kokilaben Chandravadan and Ors., [1987] 2 SCC 654, distinguished.
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1. In this appeal, the appellant challenges the judgment and
order dated 01.04.2021 passed in Sessions Case No.87 of 2016 by
the learned Sessions Judge, Gadchiroli, whereby the learned Judge
convicted the appellant (accused no.1) for the offence punishable
under Section 304B of the Indian Penal Code (for short, ‘IPC’) and
sentenced him to undergo rigorous imprisonment for ten years and
pay fine of ₹25,000/-, in default to undergo further simple
imprisonment for six months.
2. Informant-Suresh Khobragade, who is father of deceased
Shefali lodged report on 19.06.2016 against the appellant and
remaining four accused. The learned Sessions Judge acquitted
accused nos.2,3 and 5. Accused no.4 died during pendency of the
trial and therefore prosecution abated against her. Acquitted accused
no.2 is the brother of the appellant. Acquitted accused no.3 is the
brother-in-law of the appellant. Deceased accused no.4 is the
mother of the appellant. Acquitted accused no.5 is the sister of the
appellant. There was love affair between the appellant and deceased
Shefali. Deceased Shefali and appellant on 05.06.2016 by
maintaining utmost secrecy performed the marriage at Markanda
temple. The appellant and the informant are the resident of
Gadchiroli. After marriage, deceased Shefali went to stay with the
appellant at the house of Pallavi (accused no.5). Informant and his
family members did not like the marriage and therefore severed all
ties with deceased Shefali.
3. It is the case of the prosecution that after 4 to 5 months of the
marriage, the appellant and the acquitted accused started ill-treating
deceased Shefali. The appellant and his family members told the
deceased that if her father had performed her marriage, he would
have spent near about five to six lakh rupees. The love marriage has
saved the money of the father of deceased Shefali. Therefore, they
insisted deceased Shefali to bring five to six lakh rupees from her
father as dowry. The appellant and his family members wanted to
construct upper floor of the house therefore they needed money.
Deceased Shefali was caught in precarious position inasmuch as she
had married with appellant against wish of her parents. One day,
deceased Shefali made a phone call to her mother and informed her
that the appellant and other accused are making demand of five to
six lakh rupees towards dowry. She further informed that on
account of this demand she was subjected to ill-treatment and
cruelty. On 27.05.2016, the mother of the deceased called her to the
house of her neighbour Lalita Sonpipre. On 27.05.2016, there was
birthday celebration of the son of Lalita Sonpipre. Under the pretext
of attending birthday, deceased Shefali came to the house of Lalita
Sonpipre. Mother of the deceased and deceased Shefali met there.
The deceased told her mother that her in-laws are demanding five to
six lakh rupees towards dowry for construction of upper floor of the
house. On that count she was subjected to mental and physical
harassment. She narrated this in presence of Lalita Sonpipre. After
sometime, husband of deceased went there and picked-up deceased
Shefali with him to his house. On 29.05.2016, the dead body of
deceased Shefali was found in the village pond. The police conveyed
this information to the informant and his family members. They
went to the hospital and saw the dead body.
4. The appellant on 29.05.2016 at about 15:00 hours went to the
Police Station and lodged the missing report of deceased Shefali.
However, by that time, dead body of deceased Shefali was found in
the pond. On the basis of this report, a Merg bearing No.30/2016
was registered. The police recovered the dead body of Shefali and
performed inquest panchanama of the dead body. The police
forwarded dead body of Shefali to Government Hospital for
postmortem. The Medical Officer on the basis of observations at the
time of postmortem reserved his opinion subject to the viscera
report.
5. The informant and his family members were not informed by
the appellant and his family members, when deceased Shefali
allegedly went missing. The informant and his family members,
therefore, became suspicious that deceased Shefali was killed by the
appellant and his family members. He therefore went to Police
Station, Gadchiroli on 30.05.2016 to lodge report. The police
refused to take the report. On 31.05.2016, he forwarded the report
by speed post to Gadchiroli Police Station but there was no
response. Therefore, the informant went to the Superintendent of
Police, Gadchiroli on 06.06.2016. After great persuasion on
19.06.2016 his report was recorded at Gadchiroli Police Station. On
the basis of his report, a Crime bearing No.116/2016 came to be
registered for the offence punishable under Section 304B read with
Section 34 of the IPC against the appellant and the reaming
accused. The Investigating Officer recorded the statements of the
witnesses. He obtained the opinion of the Medical Officer. The
Medical Officer categorically stated that death was due to
strangulation with postmortem drowning. After investigation,
charge-sheet came to be filed. On committal of the case, the learned
Sessions Judge framed the charge against the appellant and other
accused for the offence punishable under Section 304B read with
Section 34 of the IPC. The alternate charge was framed under
Section 302 read with Section 34 of the IPC.
6. The prosecution examined in all 12 witnesses. The prosecution
relied upon number of documents. The learned Sessions Judge on
consideration of the evidence, found the appellant alone guilty for
the offence punishable under Section 304B of the IPC. Remaining
accused were acquitted. Being aggrieved by conviction and sentence
the appellant is before this Court in appeal.
7. I have heard Shri Abdul Subhan, learned advocate for the
appellant and Shri M.J. Khan, learned APP for respondent/State.
Perused the record and proceedings.
8. The learned advocate for the appellant submitted that
prosecution has failed to establish the basic ingredients of Section
304B of the IPC. Learned advocate submitted that the evidence
adduced by the prosecution is not sufficient to prove the charge
against the appellant. Learned advocate pointed out that on the
basis of the identical evidence learned Sessions Judge has granted
benefit of doubt to the remaining accused and acquitted them.
Learned advocate submitted that on the basis of same evidence,
learned Judge should not have convicted and sentenced the
appellant. Learned advocate submitted that the informant and his
family members had grudge against the appellant and his family
members because daughter of the informant deceased Shefali had
eloped with the appellant and performed marriage against their
wish. The learned advocate took me through the evidence of the
informant and his wife i.e. mother of deceased Shefali and
submitted that their evidence is not sufficient to prove the guilt of
the appellant. Learned advocate submitted that on material aspects
there are omissions, contradictions and inconsistencies in their
evidence. As far as the remaining witnesses are concerned, the
learned advocate submitted that their evidence is not sufficient to
corroborate the evidence of the informant (PW1) and mother of
deceased Shefali (PW3). Learned advocate took me through the
evidence of PW6 and submitted that this witness was brought on
scene to rope-in the appellant and his family members. The learned
advocate submitted that number of prohibition cases have been
registered against PW6 at Gadchiroli Police Station. It is therefore
submitted that in order to oblige the police for favour, PW6
concocted a story which is totally unbelievable. Learned advocate
while commenting on the evidence of the Medical Officer
submitted that initially the Medical Officer was not able to give
opinion as to the cause of death. Learned advocate submitted that
the opinion as to the cause of death obtained later on was in
connivance with the police and the informant. Learned advocate
submitted that the learned Sessions Judge has committed a mistake
in convicting the appellant.
9. Learned APP Shri M.J.Khan, submitted that the evidence
adduced by prosecution is a cogent and reliable. He submitted that
on the basis of this evidence, the prosecution has proved guilt
against the appellant beyond reasonable doubt. Learned APP
submitted that there was no reason for deceased Shefali to make
false complaint against the appellant and his family members and so
for the informant to falsely implicate them. Learned APP submitted
that the cause of death namely strangulation with postmortem
drowning, indicates that the deceased was killed and her dead body
was thrown in the village pond. Learned APP submitted that
fortunately for the appellant he has escaped the dragnet of the
offence under Section 302 of the IPC. The learned APP submitted
that deceased Shefali died within 5 to 6 months of her marriage.
Learned APP submitted that there is ample evidence to prove that
the demand of dowry was made by the appellant and his family
members. Learned APP in short supported the judgment and order
passed by the learned Sessions Judge.
10. In order to appreciate rival submissions, I have minutely
perused the evidence on record. Learned Sessions Judge, as can be
seen from the judgment and order has not at all considered the
charge framed under Section 302 read with Section 34 of the IPC.
No finding has been recorded one way or the other. There is no
order of acquittal of the appellant and remaining accused for the
offence punishable under Section 302 read with Section 34 of the
IPC. It is seen that on the basis of materials compiled in the charge-
sheet and the medical evidence, charge under Section 302 read with
Section 34 of the IPC was framed as an alternate charge by the
learned Sessions Judge. The charge was framed on 12.01.2018. The
first witness was examined on 03.05.2018. The last witness was
examined on 21.08.2019. After examination of the last witness, on
04.11.2019, the incharge of the Gadchiroli Police Station had
forwarded postmortem notes, query report and viscera analysis
report to the Civil Surgeon, Gadchiroli with request to give final
opinion as to cause of death. The final opinion was given on
04.11.2019. The Panel of Doctors opined that the cause of death was
strangulation with postmortem drowning. On receipt of this
opinion, the prosecution made a request to recall the Medical
Officer. The application was allowed and Medical Officer was
examined. The accused persons by taking benefit of this order of
allowing prosecution to place on record the final opinion of cause of
death, cross-examined remaining witnesses. It is to be noted that
learned Sessions Judge at the time of granting application for taking
final opinion as to cause of death on record and granting the
permission to examine the medical officer, was expected to modify
and/or alter the charge. In view of this concrete opinion the charge
under Section 302 of the IPC ought to have been a principal charge
against all the accused. It is seen from the record that learned
Sessions Judge, by exercising powers under Section 216 of the Code
of Criminal Procedure, did not alter or frame the additional charge
for principal offence under Section 302 of the IPC. It is seen that
the learned Sessions Judge completely ignored the opinion of the
medical officer as to the cause of death. The opinion of cause of
death clearly indicated that deceased Shefali was killed and
thereafter her dead body was thrown in the village pond.
11. It would be profitable in the above context to consider the
judicial pronouncement of the Hon’ble Supreme Court in the case
of Vijay Pal Sing and others Vs. State of Uttarakhand reported in
(2014) 15 SCC 163. Paragraphs 18, 19 and 20 would be important
“18.However, it is generally seen that in cases where a married
woman dies within seven years of marriage, otherwise than
under normal circumstances, no inquiry is usually conducted
to see whether there is evidence, direct or circumstantial, as to
whether the offence falls under Section 302 of IPC.
Sometimes, Section 302 of IPC is put as an alternate charge.
In cases where there is evidence, direct or circumstantial, to
show that the offence falls under Section 302 of IPC, the trial
court should frame the charge under Section 302 of IPC even
if the police has not expressed any opinion in that regard in
the report under Section 173(2) Cr.PC. Section 304B IPC can
be put as an alternate charge if the trial court so feels. In the
course of trial, if the court finds that there is no evidence,
direct or circumstantial, and proof beyond reasonable doubt is
not available to establish that the same is not homicide, in
such a situation, if the ingredients under Section 304-B IPC
are available, the trial court should proceed under the said
provision. In Muthu Kutty and another v. State, this Court
addressed the issue and held as follows:
"20. A reading of Section 304-B IPC and Section 113-B,
Evidence Act together makes it clear that law authorises a
presumption that the husband or any other relative of the
husband has caused the death of a woman if she happens to
die in circumstances not normal and that there was evidence
to show that she was treated with cruelty or harassed before
her death in connection with any demand for dowry. It,
therefore, follows that the husband or the relative, as the case
may be, need not be the actual or direct participant in the
commission of the offence of death. For those that are direct
participants in the commission of the offence of death there
are already provisions incorporated in Sections 300, 302 and
304. The provisions contained in Section 304-B IPC and
Section 113-B of the Evidence Act were incorporated on the
anvil of the Dowry Prohibition (Amendment) Act, 1984, the
main object of which is to curb the evil of dowry in the society
and to make it severely punitive in nature and not to extricate
husband’s or their relatives from the clutches of Section 302
IPC if they directly cause death. This conceptual difference
was not kept in view by the courts below. But that cannot
bring any relief if the conviction is altered to Section 304 Part
II. No prejudice is caused to the accused- appellants as they
were originally charged for offence punishable under Section
302 IPC along with Section 304-B IPC."
19. In a recent decision, this Court in Jasvinder Saini v. State
(Government of NCT of Delhi), observed thus:
"15. It is common ground that a charge under Section 304-B
IPC is not a substitute for a charge of murder punishable
under Section 302. As in the case of murder in every case
under Section 304-B also there is a death involved. The
question whether it is murder punishable under Section 302
IPC or a dowry death punishable under Section 304-B IPC
depends upon the fact situation and the evidence in the case.
If there is evidence whether direct or circumstantial to prima
facie support a charge under Section 302 IPC the trial court
can and indeed ought to frame a charge of murder punishable
under Section 302 IPC, which would then be the main charge
and not an alternative charge as is erroneously assumed in
some quarters. If the main charge of murder is not proved
against the accused at the trial, the court can look into the
evidence to determine whether the alternative charge of
dowry death punishable under Section 304-B is established.
The ingredients constituting the two offences are different,
thereby demanding appreciation of evidence from the
perspective relevant to such ingredients. The trial court in that
view of the matter acted mechanically for it framed an
additional charge under Section 302 IPC without adverting to
the evidence adduced in the case and simply on the basis of
the direction issued in Rajbir case. The High Court no doubt
made a half-hearted attempt to justify the framing of the
charge independent of the directions in Rajbir case, but it
would have been more appropriate to remit the matter back to
the trial court for fresh orders rather than lending support to it
in the manner done by the High Court."
20. Though in the instant case the accused were charged by
the Sessions Court under Section 302 IPC, it is seen that the
trial court has not made any serious attempt to make an
inquiry in that regard. If there is evidence available on
homicide in a case of dowry death, it is the duty of the
investigating officer to investigate the case under Section 302
IPC and the prosecution to proceed in that regard and the
court to approach the case in that perspective. Merely because
the victim is a married woman suffering an unnatural death
within seven years of marriage and there is evidence that she
was subjected to cruelty or harassment on account of demand
for dowry, the prosecution and the court cannot close its eyes
on the culpable homicide and refrain from punishing its
author, if there is evidence in that regard, direct or
circumstantial.”
12. It is apparent that there was confusion with regard to the
offence of murder and the offence of dowry death in the mind of
learned Sessions Judge. It is to be noted that the offence of dowry
death is different from the offence of murder. A case of dowry death
may not necessarily be a murder. However in case of murder there
can be a dowry death. The ingredients of the offence of murder and
the ingredients of the offence of dowry death, as can be seen on
plain reading are totally different. The learned Sessions Judge as can
be seen has completely ignored this important aspect and proceeded
on the assumption that offence of dowry death would take in its fold
offence of murder.
13. It is seen on perusal of the judgment that the learne
Sessions Judge did not frame a point for determination with regard
to the charge under Section 302 read with Section 34 of the IPC.
He did not discuss this charge in the judgment. In my view, this was
totally contrary to the express provision of law. The witnesses were
recalled after granting permission for taking final opinion of cause of
death on record. It is further seen that learned Sessions Judge has
accepted the case of prosecution that deceased Shefali died
homicidal death. In my view, this was the crux of the matter. In this
view of the matter, charge for murder ought to have been a principal
charge. The learned Sessions Judge somehow or the other has
missed this crux of the matter and committed grave error.
14. It is to be noted that after re-examination of the medical
officer and bringing on record the final cause of death certificate, the
learned Judge was not only required to add or alter the charge but
consistent with the evidence on record put this important
circumstance to the accused persons in their examination under
Section 313 of the Code of Criminal Procedure statement. This
important evidence as to cause of death was not put to the accused
person in their examination under Section 313. It is seen that this
vital evidence has been made the basis of conviction and sentence of
appellant. It is to be noted that by way of precaution this Court has
recorded the statement of the appellant and put those circumstances
to him and sought his explanation at the stage of hearing of this
appeal.
15. It is seen that this error committed by the learned Session
Judge has further been compounded by the prosecution. It is seen
that prosecution has accepted the judgment and order passed by the
learned Sessions Judge without any demur. At the trial stage, learned
prosecutor incharge of the case before the Sessions Court did not
apply for alteration or addition of the charge after obtaining the final
opinion of cause of death. The learned APP submitted that the State
has neither proposed nor filed appeal against order of acquittal of
the remaining accused. Learned APP further submitted that the
State has not made any grievance with regard to the manner in
which the mater was proceeded and decided vis-a-vis charge under
Section 302 of the IPC. The State has not filed any appeal for
enhancement of the sentence of the appellant. It is further pertinent
to note that during the pendency of this appeal no steps have been
taken to rectify the above position. This Court is therefore left with
no alternative but to decide this appeal being an appeal against
conviction and sentence for the offence under Section 304B of the
16. Dr. Mangesh Bele (PW9) had conducted post mortem of
the body of deceased Shefali. He found following injuries on the
person of deceased Shefali:
(ii) depressed contusion over right lateral side of neck of size
4 x 0.5 x 0.5 cm reddish in colour,
(iii) depressed contusion over right lateral side of neck of size 1
cm below injury no.2.”
17. The viscera was preserved for chemical analysis (CA). The
opinion as to the cause of death was reserved. Postmortem report is
at Exh.71. The postmortem was conducted on 29.05.2016 at about
05:00 pm. According to PW9, the approximate time of death of the
deceased was between 24 to 36 hours prior to postmortem. The
uterus was gravid (6 to 8 weeks pregnant). The medical officer
(PW9) issued query report, which is at Exh.73. PW9 has
categorically stated in the query report that the death in question
was not due to drowning. All the injuries were antemortem in
nature. In my view, this opinion would assume great importance. As
stated above, the final opinion as to the cause of the death was not
called till the examination of all the witnesses. On 04.11.2019, that
request was made to the Medical Officer to give final opinion with
regard to the cause of death of deceased Shefali. Dr. Mangesh Bele,
Dr. Arvind Alam and Dr. Shambharkar (maiden name Vaidhya) on
going through the CA report, postmortem notes and query report,
gave final opinion as to the cause of death. According to PW9, the
cause of death was strangulation with postmortem drowning. On
the basis of this evidence, the learned Sessions Judge has recorded a
finding that deceased Shefali died unnatural homicidal death due to
bodily injuries and otherwise than under natural circumstance. The
observation of the learned Judge that deceased Shefali died
unnatural homicidal death due to bodily injuries seems to be
misconceived. On the basis of evidence on record, the finding ought
to have been that deceased Shefali died homicidal death due to
strangulation with postmortem drowning. Homicidal death cannot
be termed as unnatural homicide. The homicide means killing of a
man by a man. Section 299 of the IPC defines culpable homicide.
Therefore, there cannot be unnatural homicidal death. It seems that
this finding as to the nature of death has been recorded to bring the
case within the ambit of Section 304B of the IPC. The learned
Judge ought to have recorded finding with regard to the nature of
death based on the oral evidence of PW9 and the postmortem
report, as well as the final opinion of cause of death. The deceased
had sustained three injuries to her neck. The injuries clearly
indicated that deceased was strangulated, killed and thereafter
thrown in the pond. Injuries were antemortem. It therefore goes
without saying that in this case the death was pure and simple
homicidal death.
18. PW9 was cross-examined on behalf of the accused
persons. Perusal of his cross-examination would show that not a
single admission has been elicited in his cross-examination to
discard the evidence of PW9 and postmortem report. Injuries found
on the dead body and condition of internal organs of the dead body
recorded in postmortem report clearly indicate that death was not
due to drowning. I have already mentioned that essential ingredients
of Section 304B (dowry death) and Section 302 (murder) are totally
different. It is therefore apparent that the charge in this case under
Section 304B of the IPC could not have been substitute for a charge
of murder punishable under Section 302. In the facts and
circumstances, therefore, the cause of death coupled with the
evidence of medical officer is sufficient to record a concrete finding
that deceased Shefali died homicidal death due to strangulation with
postmortem drowning. In view of legal position discussed above and
the fact that death was homicidal, in the facts and circumstances of
this case, the Court can proceed to decide the case of prosecution on
merits for the offence under Section 304B of the IPC. In order to
make out offence under Section 304B the basic requirements are; (i)
demand of dowry and (ii) ill-treatment and harassment by her
husband or any relative in connection with demand of dowry. At
this stage, needless to state that due to the misconception as
mentioned above the appellant and remaining accused were not
made to face principal charge for the offence of murder. It is
apparent on the face of record that on account of this misconception
there is no whisper in the entire judgment about the charge under
Section 302 of the IPC.
19. Be that as it may, it would be necessary to appreciate the
evidence on record. PW1 is the father of deceased Shefali and PW3
is the mother of deceased Shefali. Evidence of PW1 is not a direct
evidence on the point of the demand of dowry and harassment on
account of failure to pay the dowry. In absence of evidence of PW3
mother of deceased Shefali, evidence of PW1 could have been
termed as hearsay evidence. As per the case of the prosecution, PW3
came to know about the demand of money by the appellant and
remaining accused and due to the failure to meet the demand, the
deceased was subjected to ill-treatment and harassment. PW3 had
conveyed ill-treatment and demand of the money received by her
from deceased Shefali to PW1. Before appreciating their evidence, it
is necessary to state that initially there were five accused, in the case.
The mother of the appellant died during pendency of the trial. The
main allegation against the accused persons as can be seen from the
report at Exh.45 and the evidence of PW1 was that all the accused
insisted deceased Shefali to bring five to six lakh rupees as dowry
from her parents and on that count she was subjected to mental and
physical torture by all the accused. The learned Judge as can be seen
from his judgment observed that no direct role has been attributed
against the accused nos.2,3 and 5. It is observed that against them
there are general allegations of harassment and ill-treatment. In my
view, this observation is not factually correct. The identical role has
been attributed to all the accused in the matter of five to six lakh
rupees and ill-treatment and harassment on that count. In my view,
learned Judge on the basis of the same evidence extended benefit to
the accused nos.2,3 and 5 and acquitted them. In my view, this is
very important aspect which would be required to be borne in mind
while appreciating the evidence of prosecution witnesses.
20. Before I appreciate the evidence of witnesses, it is
necessary to state that deceased Shefali was beloved and pampered
daughter of PW1. This fact has been admitted in evidence by PW1.
Deceased Shefali had love affair with the appellant. Deceased
Shefali eloped with appellant and secretly performed the marriage
with him. It has come on record in the evidence of PW1 that
because of this, they had grudge against the appellant and his family
members. It is pertinent to note that this marriage was performed on
05.01.2016 and Shefali died on 28 or 29.05.2016. It has come on
record that in their evidence when they came to know that deceased
Shefali married with the appellant behind the back, the family of the
PW1 severed all ties with deceased Shefali. This aspect could be
very important while appreciating the evidence of PW1 and PW3.
PW3 has stated that after 4 to 5 months of the marriage, deceased
Shefali made a phone call to her and informed her that the appellant
and his family members were asking her to bring five to six lakh
rupees from her parents for construction of upper-floor of the
house. PW3 has stated that the appellant and remaining accused
told deceased Shefali that if her parents had performed her marriage,
they would have spent five to six lakh rupees for marriage and
therefore the amount which has been saved should be given to the
accused persons. In the evidence it is stated that on 27.05.2016
PW3 called deceased Shefali to the house of her neighbor PW5-
Lalita Sonpipre. The deceased came there. She has stated that
deceased started weeping. The deceased told her that she was being
harassed for non-payment of five to six lakh rupees demanded by
the accused persons. So this is the only evidence with regard to
demand of money. She has stated that when deceased Shefali
requested her to the pay the amount, PW3 told her that since she
has married without their consent therefore they could not pay
money to her. PW3 was cross-examined. In her cross-examination,
sufficient material has been elicited to create doubt about the case of
prosecution vis-a-vis demand of money and ill-treatment on that
count. Perusal of her cross-examination would show that the
material statements in examination-in-chief have been proved to be
omission from her statement. It is seen that while recording her
statement by the police PW3 has stated that in April 2016 deceased
Shefali made a phone call to her and demanded five to six lakh
rupees for construction of upper floor of the house. Deceased
Shefali told to PW3 that if they had performed her marriage they
would have spent five to six lakh rupees. This shows that deceased
on her own demanded money. It therefore clearly indicates that
PW3 has improved her statement before the Court and stated that
deceased Shefali made this demand at the instance of the accused
persons. It is seen that first part of the story narrated by PW3 has
been found to be self-contradictory to her initial statement. It is
therefore not possible to place explicit reliance on the story narrated
by the PW3. The material improvement made by PW3 has made
evidence of PW3 doubtful.
21. In this context, it would be necessary to consider the
events occurred on 27.05.2016 when PW1 and deceased Shefali met
at the house of neighbor Lalita Sonpipre, who has been examined as
PW5. PW3 has stated that on the pretext of attending the birthday
of son of Laita Sonpipre deceased Shefali come to her house. PW3
went there when she received call from Sonpipre. She has stated that
there deceased Shefali started weeping and told her that she is being
harassed and ill-treated on account of failure to bring five to six lakh
rupees from her parents by all accused. This solitary statement has
been made the basis of the conviction of the appellant. Perusal of
the evidence of PW3 would clearly indicate that she has attributed a
specific role to all the accused persons with equal vehemence. It is to
be noted that when this evidence is found to be of general and
vague in nature against accused nos.2,3 and 5, I fail to understand
how the same evidence could diminish its general and vague
character against the appellant. In my view, the finding of the
learned Judge is self-contradictory. It cannot be sustained. On the
contrary, perusal of the evidence of PW3 would show that she had
attributed serious role to accused no.5-Pallavi, the sister-in-law of
deceased Shefali. It has come on record in evidence that after love
marriage, the appellant and deceased Shefali were staying at the
house of Pallavi. Pallavi is married to accused no.3. The appellant
and deceased Shefali, as can be seen from the evidence on record,
were provided shelter by accused no.5-Pallavi and therefore she was
in a dominant position. In the facts and circumstances, in my view,
the allegations are general and vague against the appellant as well
and therefore the learned Judge ought to have extended the benefit
to the appellant which he has extended to accused nos.2,3 and 5.
22. Evidence of PW1 is on the line of the evidence of PW3.
PW1 has stated that in the evening of 27.05.2016 PW3 had told
him about her meeting with deceased Shefali, the demand of five to
six lakh rupees and ill-treatment and harassment to her on that
count. PW1 has stated that deceased Shefali had made a phone call
to PW3 and told her that accused persons were making demand of
five to six lakh rupees, which they had saved due to her love
marriage. The statement made by PW3 on this count specifically
attributing the role to the accused persons in making demand of
money, has been proved to be an omission. In his evidence, he has
narrated the incident occurred at the house of PW5-Lalita Sonpipre.
It is seen that after this incident, PW1 neither took any action nor
contacted deceased Shefali. In the context of the chronology of
events, the case putforth with regard to the demand of money by the
appellant and the family members appears to be improbable. There
are material omissions and inconsistencies in the evidence of PW1
and PW3. Their evidence is self-contradictory. Their evidence
creates doubt about occurrence of incident as stated.
23. It would be necessary to consider the evidence of the
independent witnesses. PW5-Lalita Sonpipre’s evidence would be
very relevant because so called meeting of the PW3 and deceased
Shefali took place at her house. It is the case of PW3 that when
deceased Shefali narrated the incident to her, PW5 was present
there. Perusal of evidence of PW5 does not support this fact. PW5
has stated that in her presence deceased Shefali told her mother that
accused treated her well for few days and now they are harassing her
for bringing the money. She has stated that her mother(PW3) told
deceased Shefali that since she had performed love marriage they
would not pay money to her. Her evidence is silent about weeping
of deceased Shefali at her house. Her evidence is also silent about
demand of particular sum of money and beating for dowry. In her
cross-examination, PW5 has stated that when she made enquiry
with deceased Shefali about her family life, she told her that they
were doing well. She has stated that when PW3 told deceased that if
she had performed marriage with their consent, they would have
performed her marriage well, the deceased became speechless and
started weeping. She has further stated that about the family life of
deceased, deceased Shefali told her that mother-in-law, sister-in-law
and husband are residing together. Deceased Shefali also told that
they are residing happily. PW5 has stated when this talk was going
on her neighbor Jambhule Tai came there. Perusal of evidence of
PW5 would show that on material aspect she has not corroborated
the version of PW3. It is to be noted that the main episode took
placed at the house of PW5 in her presence. In this backdrop, PW5
could be the proper witness to narrate all the facts narrated by PW3,
if incident as stated had occurred in her house. PW5 has admitted in
her cross-examination that her neighbor Jambhule Tai had also
made enquiry with deceased Shefali. The deceased told Jambhule
Tai that she was doing well. In my view, therefore, evidence of PW5
instead of supporting the case of prosecution creates the path
difficult for the prosecution. The combine reading of evidence of
PW1, PW3 and PW5 would show that their evidence is not
sufficient with regard to the demand of money as a dowry, ill-
treatment and harassment on that count. PW1 and PW3 have
categorically admitted that due to the marriage by the deceased
Shefali with the appellant they had grudge against the appellant and
his family members. It is to be noted that if the demand of dowry
and ill-treatment on that count was narrated by the deceased, then
PW1 without wasting time could have lodged the report. In my
view, this would reflect on their conduct. Their conduct in the facts
situation, appears to be contrary to the conduct of man of prudence
placed in a similarly situation.
24. The prosecution has examined three important witnesses
to seek corroboration to the case of prosecution. PW6 is one of
those witnesses. He has deposed that on 28.05.2016 when he was
sleeping in his courtyard, at about 2 to 2:30 am he woke-up for
urination and at that time, he saw two vehicles coming towards his
house from filter by-pass road. He has stated that Vijay Barapatre
was on one motor bike and accused Mangesh Kannake was driving
another motor bike and Pallavi was holding Shefali on that motor
bike. He thought that they were taking Shefali to hospital. He has
stated that after half an hour they returned from the same road but
Shefali was not seen with them. This witness seems to have been
examined to prove that in the night intervening of 27 and
28.05.2016 at 02.00 to 02.30 a.m. deceased Shefali was carried by
those accused and thrown in pond. It is pertinent to note that this
witness was under the thumb of the police. Several crimes registered
against him at the same police station. It is further pertinent to note
that his evidence is directly contradictory to the evidence of PW7
and PW8. PW7 has stated he saw Shefali on 28.05.2016 in front of
his house. It means that during the day time of 28.05.2016, he saw
deceased Shefali. He has stated that deceased Shefali was going to
her house carrying bread packet. PW8 has stated that on
28.05.2016 he saw deceased Shefali and the appellant going towards
market on motorcycle. Therefore, evidence of PW6 is contradictory
to the evidence of PW7 and PW8. If deceased Shefali was killed or
carried on the motorcycle as stated by the PW6 on 28.05.2016 at
about 02.00 to 02:30 am then there was no question of PW7 and
PW8 having seen deceased Shefali alive during day time of
28.05.2016. PW6 seems to be a got-up witness. Their evidence is
not the direct evidence on the point of ill-treatment and demand of
money.
25. There is one more circumstance which goes against the
case of the prosecution. PW12 has stated that CDR and SDR of the
phone carried by deceased Shefali was obtained. He has
categorically stated that the last location of deceased Shefali, as per
CDR, was near the bus stand. It is the case of the appellant that this
CDR has been suppressed despite making repeated requests for
production of the same by the prosecution. Perusal of the record
would show that the accused had made an application seeking
direction to the prosecution to produce the CDR and SDR. The
learned Sessions Judge rejected the said application. It has come on
record that house of the PW1, father of deceased Shefali is in the
vicinity of the bus stand. PW12 has admitted that after obtaining
the CDR and SDR of the mobile, it was handed over to PSI
Lasanthe. In my view, this aspect would assume importance in view
of the categorical admission by PW1 and PW3 that they had grudge
against the appellant and his family members. They have stated that
their reputation was spoiled due to the marriage performed by
deceased Shefali with the appellant. In my opinion, therefore, failure
to produce CDR and SDR despite repeated requests by the accused
is one more circumstance to create doubt about the prosecution case
against the appellant. No plausible explanation has been placed on
record for such non-production.
26. On minute perusal and appreciation of evidence, I am of
the opinion that the prosecution has failed to prove the charge
under Section 304B particularly with regard to the demand of any
amount as dowry and ill-treatment on that count. In the facts and
circumstances, therefore, merely because of the evidence of the
doctor as to the cause of death the appellant cannot be held guilty of
the offence punishable under Section 304B of the IPC.
27. It is to be noted that the learned Sessions Judge has not
properly considered the case of the prosecution vis-a-vis charge of
the murder under Section 302 is concern. It is seen that in the entire
judgment there is no even cursory observation about the charge of
murder of deceased Shefali and the evidence adduced by the
prosecution. In the teeth of the specific opinion as to the cause of
death i.e. strangulation with postmortem drowning, the learned
Judge ought to have amended and made charge under Section 302
as a principal charge against appellant and other accused. In that
event circumstances relevant to the point of homicidal death
brought on record would have been of some assistance to the case of
prosecution. In this case, therefore the basic two ingredients of
section 304B have not been made out namely; demand of dowry
and the ill-treatment or harassment on that count. Therefore, in my
view, the judgment and order passed by the learned Judge cannot be
sustained. The appellant would be entitled to get benefit which has
been extended to the accused nos.2,3 and 5 by the learned Sessions
Judge. The appeal deserves to be allowed. Hence, following order:
(i) The criminal appeal is allowed.
(ii) The judgment and order of conviction and sentence
passed by the Sessions Judge, Gadchiroli dated 01.04.2021
passed in Sessions Case No.87/2016 is set aside.
(iii) Appellant – Mangesh s/o Deorao Kannake (accused
no.1) is acquitted of the offence under Section 304B of the
(iv) The appellant be set at liberty forthwith, if not required
in any other crime. Fine amount, if any, deposited by the
appellant be refunded to him.
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The Bombay High Court recently observed that parents not taking any action on their daughter's complaint about the dowry demand and harassment by her in-laws is not a conduct of a prudent person, while setting aside a man's dowry death conviction.
"If the demand of dowry and ill-treatment on that count was narrated by the deceased, then PW1 (father) without wasting time could have lodged the report. In my view, this would reflect on their conduct. Their conduct in the facts situation, appears to be contrary to the conduct of man of prudence placed in a similarly situation"
Justice G. P. Sanap of the Nagpur bench made the observation while dealing with an appeal by a man convicted under section 304B of the IPC for the death of his 6-8 weeks pregnant wife.
The accused and the victim woman had a love affair and married secretly in 2016. The family of the deceased cut ties with her after the marriage.
The prosecution alleged that after 4-5 months of marriage in 2016, the husband and his family members started ill-treating the woman and demanded dowry. Before death, the victim met her mother at the house of a neighbour and told her that her in-laws are demanding dowry and mentally and physically harassing her. Four days later, the woman's body was found in the village pond.
The medical officer opined that the death was due to strangulation with drowning after death. The sessions judge framed charge against the husband and his family members under section 304B (dowry death) of the IPC, and an alternate charge under section 302 (murder) IPC was also framed. The appellant was found guilty under section 304B.
The victim's mother testified in the trial that she told her that her husband and his family members had said that her parents would have spent 5-6 lakhs if they had performed the marriage and since the money was saved due to their love marriage, she should should bring it from her father "as dowry".
The court observed that the alleged dowry demand was improbable. "It is seen that after this incident, PW1 (father) neither took any action nor contacted deceased Shefali. In the context of the chronology of events, the case put forth with regard to the demand of money by the appellant and the family members appears to be improbable."
The court noted that the mother's testimony about the incident at the neighbour's house is the only evidence regarding demand of dowry, and it is not supported by the neighbour's testimony.
It further noted that the parents of the deceased had admitted that they had a grudge against the appellant and his family as their daughter had eloped and married him, thus "spoiling" their reputation.
The bench also said that the mother improved her statement before the court. All these factors create doubt in her story, it added.
Mere Dowry Death Or Murder?
A panel of doctors had given the final opinion that the cause of death was strangulation with postmortem drowning. The court said that the trial court committed grave error in not framing principal charge of murder considering the cause of death.
"It is further seen that learned Sessions Judge has accepted the case of prosecution that deceased died homicidal death. In my view, this was the crux of the matter. In this view of the matter, charge for murder ought to have been a principal charge. The learned Sessions Judge somehow or the other has missed this crux of the matter and committed grave error," Justice Sanap said.
The court said that the sessions judge was confused between offence of murder on offence of dowry death. The ingredients of the two offences are totally different.
"The learned Sessions Judge as can be seen has completely ignored this important aspect and proceeded on the assumption that offence of dowry death would take in its fold offence of murder", the court observed.
There is no discussion of murder charge in the trial court's judgment which is contradictory to the law, the court said.
"It is seen that this error committed by the learned Session Judge has further been compounded by the prosecution. It is seen that prosecution has accepted the judgment and order passed by the learned Sessions Judge without any demur. At the trial stage, learned prosecutor incharge of the case before the Sessions Court did not apply for alteration or addition of the charge after obtaining the final opinion of cause of death".
The court said the State has not filed any appeal for enhancement of the sentence of the appellant or taken any steps to rectify the position with regard to charges. "This Court is therefore left with no alternative but to decide this appeal being an appeal against conviction and sentence for the offence under Section 304B of the IPC," it added.
In the post mortem, it was found that the deceased had injuries on her eyelid and neck. All the injuries happened before death. However, the sessions judge concluded that the deceased died an unnatural homicidal death due to bodily injuries.
The high court said that this conclusion is misconceived. "…homicide means killing of a man by a man. Section 299 of the IPC defines culpable homicide. Therefore, there cannot be unnatural homicidal death. It seems that this finding as to the nature of death has been recorded to bring the case within the ambit of Section 304B of the IPC."
It added that the trial court ought to have recorded a finding with regard to the nature of death based on the oral evidence of the doctor.
"The deceased had sustained three injuries to her neck. The injuries clearly indicated that deceased was strangulated, killed and thereafter thrown in the pond. Injuries were antemortem. It therefore goes without saying that in this case the death was pure and simple homicidal death," said the court.
Acquittal
The sessions judge had acquitted the other accused persons observing that no direct role has been attributed against them and there are general and vague allegations of harassment. The high court found this unsustainable as there was identical evidence against the appellant as well.
The court also said that failure to produce call records of the victim's phone despite repeated requests of the appellant creates doubt about the prosecution's case.
The court concluded that the prosecution failed to prove the charge of section 304B IPC as the basic ingredients - a demand of dowry, and ill treatment by the husband or any relative regarding demand of dowry, have not been made out.
Case no. – Criminal Appeal No. 260 of 2021
Case title – Mangesh s/o Deorao Kannake v. State of Maharashtra
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Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Umesh Pal Singh
Counsel for Opposite Party :- G.A.
Counter affidavit filed by the learned A.G.A., is taken on
Heard learned counsel for the applicant as well as learned
A.G.A. and perused the record.
The accused- applicant, Manoj Saxena, is involved in Case
Crime No.189 of 2022, under Sections 376A, B, 354 I.P.C. &
It is submitted by the learned counsel for the applicant that
there is general allegation in the FIR. In the statements under
Sections 161 and 164 Cr.P.C. of the victim, there is no
ingredient of Section 376 I.P.C. No medical has been conducted
as the parents of the victim denied to get her daughter medically
examined. No injury has been found on the person of the
victim. In fact the father of the victim is a police personnel and
this FIR is only the misuse of that power. The applicant is 50
years of age so the incident appears to be suspicious. He is
languishing in jail since 13.04.2022 and in case he is enlarged
on bail he will not misuse the liberty of bail. Hence, bail has
been prayed for.
Learned A.G.A. has opposed the bail application and submitted
that as per medical report, the victim is 10 years of age and as
per school leaving certificate the age of the girl is seven years.
From the perusal of the FIR, it appears that in the absence of
other family members when eight years old victim was alone at
her home and when she saw her TV dish connection was
disturbed, she called Manoj Saxena (applicant), the person who
used to go to repair the dish connection. When Manoj Saxena
(applicant) came inside the house, he saw the girl alone at her
home, he started vulgar activities with her. The victim made hue
and cry then he ran away from the house. In the statement under
Section 161 Cr.PC. the victim has stated that when Manoj
Saxena came in the house of the first informant to repair the
dish connection, seeing the girl alone at her home he inserted
his hand in her clothes and kissed her on lips. As per statement
under Section 164 Cr.P.C. of the victim, Manoj Saxena came at
the house of the first informant repaired the dish connection
then hold her tightly and kissed on her lips, inserted his hand
into her panty and also pressed her breast by inserting her hands
therein.
Admittedly, the parents of the victim have denied for any
medical examination of the victim.
Having heard the submissions of learned counsel of both sides,
considering the seriousness of the charge and the severity of
punishment in case of conviction and the nature of supporting
evidence, prima facie satisfaction of the Court in support of the
charge, reformative theory of punishment, and larger mandate
of the Article 21 of the Constitution of India, the dictum of
Apex Court in the case of Dataram Singh v. State of U.P. and
another, reported in (2018) 2 SCC 22 and without expressing
any opinion on the merit of the case, I find it to be a case of
bail.
Let the applicant, Manoj Saxena, who is involved in aforesaid
crime be released on bail on his furnishing a personal bond and
two sureties each in the like amount to the satisfaction of the
court concerned subject to following conditions.
1. The applicant will attend and co-operate in the trial pending
before the court concerned on the date fixed after release.
2. He will not tamper with the witnesses.
3. He will not indulge himself in any illegal activities during the
bail period.
The identity, status and residential proof of sureties will be
verified by the court concerned and in case of breach of any of
the above conditions, the court below shall be at liberty to
cancel the bail and send the applicant to prison.
It is clarified that the observations, if any, made in this order are
strictly confined to the disposal of this bail application and must
not be construed to have any reflection on the ultimate merits of
the case.
In case of breach of any of the above conditions, it shall be a
ground for cancellation of bail.
Location: High Court of Judicature at
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The Allahabad High Court recently granted bail to an accused booked for committing an Aggravated Sexual Assault (punishable under Section 10 of the POCSO Act) upon a 8 year old girl as her parents refused to get her medically examined.The bench of Justice Sadhna Rani (Thakur) granted bail to accused Manoj Saxena taking into account the larger mandate of Article 21 of the Constitution...
The Allahabad High Court recently granted bail to an accused booked for committing an Aggravated Sexual Assault (punishable under Section 10 of the POCSO Act) upon a 8 year old girl as her parents refused to get her medically examined.
The bench of Justice Sadhna Rani (Thakur) granted bail to accused Manoj Saxena taking into account the larger mandate of Article 21 of the Constitution of India and the Apex Court's dictum in the case of Dataram Singh v. State of U.P. and another (2018) 2 SCC 22
The case in brief
As per the FIR in the case, in the absence of other family members of the 8-year-old victim, the accused, a dish repairing technician, visited the victim's house and seeing the victim alone, started vulgar activities with her. The victim made hue and cry then that is how he ran away from the house.
In her statement recorded under Section 161 Cr.PC, the victim stated that when the accused came in her house, to repair the dish connection, he inserted his hand in her clothes and kissed her on the lips.
As per her statement recorded under Section 164 Cr.P.C., the victim alleged that the accused held her tightly and kissed her lips, inserted his hand into her panty, and also pressed her breast by inserting her hands therein.
The Accused was booked under Sections 376A, B, 354 I.P.C. & 9D/10 POCSO Act & 3(2)V SC/ST Act and thus, he moved to the Court seeking regular bail. It was argued on his behalf that there is a general allegation in the FIR and as per the statements of the victim recorded under Sections 161 and 164 Cr.P.C., no ingredient of Section 376 I.P.C is made out.
Further, it was argued that the parents of the victim refused the medical examination of the victim and that no injury had been found on the person of the victim. It was further argued that the father of the victim is a policeman and this FIR is only a misuse of that power.
In view of this, the Court granted him bail as it noted that the parents of the victim denied any medical examination of the victim.
Case title - Manoj Saxena v. State of U.P. and Another [CRIMINAL MISC. BAIL APPLICATION No. - 27038 of 2022]
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The State of Madhya Pradesh has filed this appeal against the
order dated 20.08.2018 passed in W.P. No.5436/2017 whereby Writ
Court has directed State to consider the case of the writ petitioner for
grant of compassionate appointment on merit ignoring clause 4.1 of
the policy dated 29.09.2014.
1. Late Ishwarsingh Rajawat working on the post of peon in the
office of collector Ujjain. He died on 12.09.2016 due to cardiac arrest
while in employment. The writ petitioner being a second son
dependent of income his father became eligible to claim a
compassionate appointment after the death of his father. He submitted
an application in prescribed form on 02.10.2016 in the Office of
Collector claiming compassionate appointment on the post of Assistant
Grade -III by virtue of his educational qualification B.Com. M.A. and
A.D.C.A. In support of the application, he has submitted the affidavit
of his mother Smt. Padma Kunwar to the effect that she has no source
of income. Her elder son Jitendra Rajawat is working in the Indian
Army since 2008 has also given an affidavit that he is not in a position
to support the family financially as he has been living separately with
his wife and not providing any financial aid to the father, mother and
writ petitioner.
2. Vide letter dated 18.10.2016, the Collector Ujjain has sought
direction from Principal Secretary, GAD of Madhya Pradesh for grant
of compassionate appointment to the petitioner in view the condition
No.4.1 of the policy dated 29.09.2014. Vide letter dated 10.11.2016,
the Deputy Secretary of GAD of Madhya Pradesh has held that in view
of clause 4.1, the writ petitioner is not entitled to get the
compassionate appointment. Hence, the petitioner filed a writ petition,
and it came to be allowed vide order dated 20.08.2018 on the ground
that the employment in the Indian Army is a tenure appointment. The
Writ Court has held that the brother of the writ petitioner after joining
the Indian Army has been living separately and for which the writ
petitioner cannot be made to suffer.
3. Being aggrieved by the above direction given by the writ court
the State of Madhya Pradesh has preferred this Writ Appeal on the
ground that since the elder brother of the writ petitioner is already in
employment of Indian Army, which makes the petitioner ineligible to
claim the compassionate appointment by virtue of condition No.4.1 of
the policy dated 29.09.2014. it is further submitted by the learned
Government Advocate for the appellant that the language of clause 4.1
is very clear, no other interpretation can be given. Even otherwise the
policy of compassionate appointment is only a policy framed by the
Government has no statutory force, hence, no writ of mandamus can
be issued to the State for providing employment. Shri Garg learned
Government Advocate has placed reliance on the judgment passed by
the Division Bench of Court in the case of Prajesh Vs. State of M.P. in
which clause 4.1 of the aforesaid policy has been examined and held
that the dependent of the deceased's family is not entitled to a
compassionate appointment if one of the family members is in
Government Service, even if he is not supporting the other dependent,
therefore, the order passed by Writ Court runs contrary to the aforesaid
judgment, hence, liable to be set aside.
4. Per contra Shri A.K. Sethi, learned Senior Counsel appearing on
behalf of the writ petitioner has argued that the Hon’ble Writ Court has
rightly held that the employment in the Indian Army is different from
the service of State Government as well as Central Government. In the
Indian Army, there is no uniform age of retirement at the age of 60 or
62 years. The brother of the petitioner was initially appointed on the
post of Soldier and now he has been promoted to the post of Naik for
which retirement age is 47 years and he would be retiring from service
on 31.12.2030. In clause 4.1, if any member is in employment in
services of Corporation, Council and commission etc. then only one of
the dependents shall be ineligible to claim the compassionate
appointment. Employment in the Armed forces is liable to be excluded
as it cannot be compared with government service. Even otherwise
being an employee of the Indian Army, the brother of the writ
petitioner is posted in various parts of the country, and he is having his
own family to support. He is out from dependence of the deceased
employee; hence, no interference is warranted and writ appeal is liable
to be dismissed.
5. The controversy involved in this appeal is in a very narrow
compass. As per the policy after the death of a Government employee,
his wife shall be entitled to the compassionate appointment and if she
is not having qualifications or is not interested in the compassionate
appointment, she can nominate her son or unmarried daughter for said
appointment. If the deceased is having a daughter only then surviving
husband or wife can nominate a married daughter also for
compassionate appointment, even the stepson and stepdaughter are
also entitled to claim a compassionate appointment. In case, a
government employee dies before marriage then his brother and
unmarried sister can also claim compassionate appointment. Clause 4
of the policy provides the disqualifications for compassionate
appointments. In the present clause, clause 4.1 applies which is
4-1 fnoaxr 'kkldh; lsod ds ifjokj dk dksbZ Hkh
lnL; ;fn iwoZ ls 'kkldh; lsok vFkok fuxe] e.My] ifj"kn
vk;ksx vkfn esa fu;fer lsok esa fu;ksftr gks] ¼vkosnd ds ifjokj
dk dksbZ lnL; fu;fer lsok esa fu;ksftr u gksus dk 'kiFk i=
The language of this clause is very clear as it says that if any
member of the family of the deceased Government employee is
already in regular service, then other dependents shall not be eligible
to claim compassionate appointments. The applicant shall submit an
affidavit that no other family member is in employment. The Division
Bench of this Court in case Prajesh Vs. State of M.P. has considered
clause 4.1 of the policy and held that a brother who is living separately
is also come under the definition of a member of the family, therefore,
merely a member of the family of the deceased servant, who is in
employment in government service or corporation or board, council or
commission has started living separately, he cannot be excluded from
the class under clause 4.1 of the policy. The Writ Court has considered
the nature of employment in the Indian Army and held that it cannot be
equated with regular services in the Government as well as Central
Government, hence, the case of the petitioner deserves to be
considered on merit ignoring clause 4.1 of the policy.
6. Recently, this clause 4.1 of the policy again come for
consideration before Division Bench of this Court in Writ Appeal
No.13/2020 in which Division Bench of this Court has held that
merely rejecting the plea of writ petitioner on the ground that her
brother is in employment is our considered may not be correct hence,
the matter has been remitted back to conduct an enquiry with regard to
the penury of the petitioner and as to whether her brother who had
secured the employment is taking care of the family or not or other
related issues. In the said case, the Writ Court had dismissed the writ
petition placing reliance on the judgment passed in the case of Prajesh
(supra). In the case in hand also the mother has filed an affidavit to the
effect that she is not getting any financial support from his first son
because he is living elsewhere for the last 8 years with his family and
not getting any financial aid. Brother of the petitioner Jitendra Rajawat
has also given an affidavit that he is separately living along with his
wife and given his life to serving the Indian Army for this Country.
Employment in the armed force cannot be compared with service in
the state or central Government. His late father and brother used to
look after his mother, hence his younger brother is entitled to get a
compassionate appointment. By letter dated 10 November 2016
without verifying the aforesaid fact and conducting any enquiry,
respondent No.1 has communicated its decision to the Collector in
view of clause 4.1. of the policy, the writ petitioner is not entitled to
compassionate appointment.
7. As per clause 2.1. of the policy in question only wife and
husband are treated dependent as the case may be on a government
employee and they have first right to claim the compassionate
appointment, in case wife or husband as the case may be is ineligible
then he /she can nominate son or unmarried daughter. The nomination
of a son who should be unemployed and not have any source of
income, therefore, survival either wife or husband cannot nominate son
who is already in employment. The son who is in employment is not
entitled to claim a compassionate appointment. Son means who is not
in employment. The son who is already in regular employment
constitute his own family hence he is seized to be a member of the
family of the deceased employee. In the family of a working son, his
brother has no claim. Hence, we are not inclined to interfere with the
impugned order. The order passed by the Writ Court be complied with
within a period of 60 from today.
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The elder son lived separately with his wife and was not providing financial aid to the deceased's family.The Madhya Pradesh High Court, Indore Bench recently upheld the decision of a single bench wherein the Writ Court had directed the State to consider the younger son of a deceased government employee for compassionate appointment, despite his elder son serving in the Indian Army. The division bench of Justice Vivek Rusia and Justice Pranay Verma noted that the elder son, though was...
The Madhya Pradesh High Court, Indore Bench recently upheld the decision of a single bench wherein the Writ Court had directed the State to consider the younger son of a deceased government employee for compassionate appointment, despite his elder son serving in the Indian Army.
The division bench of Justice Vivek Rusia and Justice Pranay Verma noted that the elder son, though was in regular employment, lived separately, had constituted his own family and was not in a position to provide financial aid to the deceased's family, i.e. deceased's wife and younger son.
"He is seized to be a member of the family of the deceased employee. In the family of a working son, his brother has no claim," the Bench remarked.
The Court was hearing a writ appeal preferred by the State against the order of the Writ Court, whereby it had directed the State Government to consider the case of the Petitioner (younger son of the deceased) for grant of compassionate appointment on merit, ignoring clause 4.1 of the policy dated 29.09.2014.
The facts of the case were that the deceased servant was working as peon in the office of the Collector, District Ujjain. He died due to cardiac arrest while in employment. His younger son (Petitioner) moved an application for compassionate appointment since he was dependent on his father's income and was eligible for the job by virtue of his educational qualifications. He also attached an affidavit of his elder brother with the application, wherein the elder brother had stated that he was serving in the Indian Army but was not in a position to support the family financially as he was living separately with his wife.
The Collector forwarded the application of the Petitioner to the General Administration Department (GAD) to seek directions. The GAD rejected the application citing Clause 4.1, which disqualifies a person seeking compassionate appointment, if any member of the deceased servant has a government job.
Aggrieved by the same, he filed a writ petition before the Court and the same was allowed on the grounds that employment in the Indian Army is tenure appointment. Moreover, the Writ Court had noted that the brother of the Petitioner, after joining the Indian Army, has been living separately and therefore, the Petitioner cannot be made to suffer for it.
Aggrieved by the said order, the State preferred an appeal.
The State submitted that since the brother of the Petitioner was serving in the Indian Army, he automatically became ineligible for compassionate appointment, pursuant to Clause 4.1. It was further submitted that the language of Clause 4.1 was absolutely clear and that no other interpretation ought to be given to it. It was also argued that even otherwise, the policy of compassionate appointment is only a policy framed by the Government, which has no statutory force, hence, no writ of mandamus can be issued to the State for providing employment.
The State relied on on the judgment of the Division Bench of the Court in the case of Prajesh v. State of M.P., wherein Clause 4.1 of the aforesaid policy had been examined and it was held that the dependent of the deceased's family is not entitled to a compassionate appointment if one of the family members is in Government Service, even if he is not supporting the other dependent. Therefore, the State argued, the order passed by Writ Court ran contrary to the aforesaid order and hence, was liable to be set aside.
Per contra, the Petitioner submitted that the Writ Court had rightly held that employment in the Indian Army is different from the service of State Government as well as Central Government. He argued that in the Indian Army, there is no uniform age of retirement at the age of 60 or 62 years. He stated that as per Clause 4.1, if any member is in employment in services of Corporation, Council and commission etc., only then would one of the dependents be ineligible to claim the compassionate appointment. Therefore, he argued, employment in the Armed forces was liable to be excluded as it cannot be compared with government service.
Even otherwise, he submitted, being an employee of the Indian Army, the brother of the Petitioner was being posted in various parts of the country and that he was having his own family to support. He was out from dependence of the deceased employee. Hence, he concluded that no interference was warranted and the appeal was liable to be dismissed.
Scrutinizing the provision under Clause 4.1, the Court observed-
The language of this clause is very clear as it says that if any member of the family of the deceased Government employee is already in regular service, then other dependents shall not be eligible to claim compassionate appointments. The applicant shall submit an affidavit that no other family member is in employment. The Division Bench of this Court in case Prajesh Vs. State of M.P. has considered clause 4.1 of the policy and held that a brother who is living separately is also come under the definition of a member of the family, therefore, merely a member of the family of the deceased servant, who is in employment in government service or corporation or board, council or commission has started living separately, he cannot be excluded from the class under clause 4.1 of the policy. The Writ Court has considered the nature of employment in the Indian Army and held that it cannot be equated with regular services in the Government as well as Central Government, hence, the case of the petitioner deserves to be considered on merit ignoring clause 4.1 of the policy.
Considering the case at hand, the Court noted that the mother of the Petitioner had filed an affidavit to the effect that she was not getting any financial support from his first son because he was living elsewhere for the last 8 years with his family. Brother of the Petitioner had also given an affidavit, stating that he was living separately along with his wife. Examining the facts of the case, the Court opined-
Employment in the armed force cannot be compared with service in the state or central Government. His late father and brother used to look after his mother, hence his younger brother is entitled to get a compassionate appointment. By letter dated 10 November 2016 without verifying the aforesaid fact and conducting any enquiry, respondent No.1 has communicated its decision to the Collector in view of clause 4.1. of the policy, the writ petitioner is not entitled to compassionate appointment.
The Court then laid out a step-by-step procedure with respect to compassionate appointment and held that the son who is already in regular employment, constitutes his own family and thus, seizes to be a member of the family of the deceased employee-
As per clause 2.1. of the policy in question only wife and husband are treated dependent as the case may be on a government employee and they have first right to claim the compassionate appointment, in case wife or husband as the case may be is ineligible then he /she can nominate son or unmarried daughter. The nomination of a son who should be unemployed and not have any source of income, therefore, survival either wife or husband cannot nominate son who is already in employment. The son who is in employment is not entitled to claim a compassionate appointment. Son means who is not in employment. The son who is already in regular employment constitute his own family hence he is seized to be a member of the family of the deceased employee. In the family of a working son, his brother has no claim.
With the aforesaid observations, the Court decided not to interfere with the impugned order and further directed the authorities to comply with the said order within 60 days. The Appeal was accordingly dismissed.
Case Title : GENERAL ADMINISTRATION DEPARTMENT v. PREMSINGH
|
Age : 60 years, Occu.: Household,
1/6] Dilip @ Bhandu s/o Umaji Shep,
Age : 58 years, Occu.: Agril.,
2 Common Judgment in AO 15-21 & 16-21
1/9] Lata w/o Eknath Nagargoje,
2-A] Madhukar s/o Madhavrao Shep,
Age : 63 years, Occu.: Agril.,
2-F] Susheelabai w/o Shridhar Bade,
Age : 55 years, Occu.: Household,
2-G] Kushabai w/o Madhukar Munde,
Age : 66 years, Occu.: Household,
3 Common Judgment in AO 15-21 & 16-21
1] Gulam Mohmood s/o Gulam Dastgir
1/1] Shaikh Ayesha Begum w/o Gulam
Age : 70 years, Occu.: Household,
s/o Gulam Mahemood,
1/3] Shaikh Sof s/o Gulam Mahemood,
Age : 42 years, Occu.: Business,
1/4] Patel Shanez w/o Shafque Patel,
Age : 44 years, Occu.: Household,
1/5] Shaikh Mukhtar s/o Gulam Mahemood,
Age : 42 years, Occu.: Business,
1/6] Shaikh M. A. Maroof s/o Gulam Mahemood
Age : 38 years, Occu.: Business,
1/7] Shaikh M. A. Farooque s/o Gulam Mahemood,
Age : 35 years, Occu.: Business,
1/8] Shaikh Shakila w/o Shaikh Sajjad,
Age : 29 years, Occu.: Household,
4 Common Judgment in AO 15-21 & 16-21
1/9] Shaikh Shaziya Jabeen d/o
1/10] Shaikh Sumiy d/o Gulam Mahemood,
Age : 26 years, Occu.: Household,
R/o.: As above. ..... (Resp.No.1/1 to 1/10
L.Rs. or Orig. R.No.5)
2. Azeemunisa Begum w/o Razak Jaybee Saheb
2-A] Yasmeen Begum w/o Khalequez Zaman,
Age years, Occu.: Agril., and Business,
3. Sayeda Begum w/o Mohd. Miskeen Saheb
3-A] Abdul Qayum s/o Mohammed Miskin,
Age : 30 years, Occu.: Business,
5 Common Judgment in AO 15-21 & 16-21
4-C] Jabin Begum w/o Mohd. Afsar,
4-D] Mohammed Shakeel s/o Munawar Ali,
District : Beed. .... (Resp. Nos.4-A to 4-D
Orig. Deft. No.1-A to 1-D)
(Died) by L.Rs. .... (R.No.5 Orig.Deft.No.2)
5-A] Masudali s/o Habibali Shaikh,
Age : 50 years, Occu.: Agril.,
5-B] Maksudali s/o Bahibali Shaikh,
Age : 44 years, Occu.: Agril.,
5-C] Farakhudali s/o Habibali Shaikh,
Age : 42 years, Occu.: Agril.,
5-D] Zubairali s/o Habibali Shaikh,
Age : 32 years, Occu.: Agril.,
5-E] Tahesin Begum w/o Naimoddin Kazi,
Age : 40 years, Occu.: Household,
5-F] Taslimbegam w/o Maksud Inamdar,
Age : 38 years, Occu.: Household,
5-G] Tanveer Sultana w/o Shaikh Habibali,
Age : 38 years, Occu.: Household,
5-H) Shaikh Praveen Sultana w/o Mohammad Siddiqui,
Age : 34 years, Occu.: Househld,
6 Common Judgment in AO 15-21 & 16-21
6] Mohd. Abdul Karim s/o Gulam Dastagir Saheb,
Age : 35 years, Occu. & R/o.: As above.
7] Abdul Rauf s/o Abdul Latif Saheb,
Age : 30 years, Occu.: Agri., & business,
R/o.: As above.
Age : 25 years, Occu & R/o.: As above.
9] Abdul Majid s/o Abdul Latif,
District : Beed ... (Resp.Nos.7 to 9
Orig. Defts.No.7 to 9)
10] Mohmad Masood Ali s/o Mohmad Miskin
(Died) Through his LRs.
10-1] Aayeshabegum w/o Mohd. Masood Ali,
Age : 56 years, Occu.: Household,
10-2] Mohd. Abdul Waris s/o Mohd. Masood Ali,
R/o.: As above.
10-3] Mohd. Abdul Naser s/o Mohd. Masood Ali,
Age ; 30 years, Occu.: Business,
11. Mohmad Yusuf s/o Mohmad Miskin,
Age : 51 years, Occu.: Business,
12. Mohmad Siddiq s/o Mohmd. Miskin,
Age : 41 years, Occu.: Business,
7 Common Judgment in AO 15-21 & 16-21
13. Ayesha Jabeen w/o Mohd. Inayath Ali,
14. Samira Fatima d/o Late Mohmad Miskin,
Age : 26 years, Occu.: Business,
15. Mohmad Maqsood s/o Mohmad Miskin, ... (Resp.No.10 to 15
Age : 42 years, Occu.: Business, Orig. Deft.Nos.10
R/o.: House No. 23-5-67-3, to 15)
Mr. V. D. Sapkal, Senior Advocate i/b
Mr. M. K. Deshpande for appellants
Mr. Akash Gade, Advocate for Respondent Nos.1-A to 1-10
Mr. S.A.P. Quadri, Advocate for respondent No.3-A
Mr. J. H. Deshmukh, Advocate for Respondent Nos.4-A to 4-D
Mr. S. A. Sable, Advocate for Respondent Nos. 5-A to 5-H
8 Common Judgment in AO 15-21 & 16-21
Age : 64 years, Occu.: Agril.,
1/5] Siminta w/o Panditrao Tidke,
Age : 60 years, Occu.: Household,
1/6] Dilip @ Bhandu s/o Umaji Shep,
Age : 58 years, Occu.: Agril.,
2-A] Madhukar s/o Madhavrao Shep,
Age : 63 years, Occu.: Agril.,
9 Common Judgment in AO 15-21 & 16-21
2-C] Shivdas s/o Madhavrao Shep,
2-F] Susheelabai w/o Shridhar Bade,
Age : 55 years, Occu.: Household,
2-G] Kushabai w/o Madhukar Munde,
Age : 66 years, Occu.: Household,
1] Azeemunisa Begum w/o Razak Jaybee Saheb
1-A] Yasmeen Begum w/o Khalequez Zaman,
Age 48 years, Occu.: Agril., and Business,
2. Sayeda Begum w/o Mohd. Miskeen Saheb
10 Common Judgment in AO 15-21 & 16-21
2-A] Abdul Qayum s/o Mohammed Miskin,
Age : 30 years, Occu.: Business,
3-D] Mohammed Shakeel s/o Munawar Ali,
District : Beed. .... (Resp. Nos.3-A to 3-D
Orig. Deft. No.1-A to 1-D)
(Died) by L.Rs. .... (R.No.4 Orig.Deft.No.2)
4-A] Masudali s/o Habibali Shaikh,
Age : 50 years, Occu.: Agril.,
4-B] Maksudali s/o Bahibali Shaikh,
Age : 44 years, Occu.: Agril.,
4-C] Farakhudali s/o Habibali Shaikh,
Age : 42 years, Occu.: Agril.,
4-D] Zubairali s/o Habibali Shaikh,
Age : 32 years, Occu.: Agril.,
4-E] Tahesin Begum w/o Naimoddin Kazi,
11 Common Judgment in AO 15-21 & 16-21
Age : 40 years, Occu.: Household,
4-F] Taslimbegam w/o Maksud Inamdar,
Age : 38 years, Occu.: Household,
4-G] Tanveer Sultana w/o Shaikh Habibali,
Age : 38 years, Occu.: Household,
4-H) Shaikh Praveen Sultana w/o Mohammad Siddiqui,
Age : 34 years, Occu.: Househld,
5] Mohd. Abdul Karim s/o Gulam Dastagir Saheb,
Age : 35 years, Occu. & R/o.: As above.
6] Abdul Rauf s/o Abdul Latif Saheb,
Age : 30 years, Occu.: Agri., & business,
R/o.: As above.
Age : 25 years, Occu & R/o.: As above.
8] Abdul Majid s/o Abdul Latif,
District : Beed ... (Resp.Nos.6 to 8
Orig. Defts.No.7 to 9)
9] Mohmad Masood Ali s/o Mohmad Miskin
(Died) Through his LRs.
9-1] Aayeshabegum w/o Mohd. Masood Ali,
Age : 56 years, Occu.: Household,
12 Common Judgment in AO 15-21 & 16-21
9-2] Mohd. Abdul Waris s/o Mohd. Masood Ali,
R/o.: As above.
9-3] Mohd. Abdul Naser s/o Mohd. Masood Ali,
Age ; 30 years, Occu.: Business,
10. Mohmad Yusuf s/o Mohmad Miskin,
Age : 51 years, Occu.: Business,
11. Mohmad Siddiq s/o Mohmd. Miskin,
Age : 41 years, Occu.: Business,
12. Ayesha Jabeen w/o Mohd. Inayath Ali,
13. Samira Fatima d/o Late Mohmad Miskin,
Age : 26 years, Occu.: Business,
14. Mohmad Maqsood s/o Mohmad Miskin, ... (Resp.No.9 to 14
Age : 42 years, Occu.: Business, Orig. Deft.Nos.10
R/o.: House No. 23-5-67-3, to 15)
Mr. V. D. Sapkal, Senior Advocate i/b
Mr. M. K. Deshpande for Appellants
Mr. S. A. Sable, Advocate for Respondent Nos.4-A to 4-H.
Mr. J. H. Deshmukh, Advocate for Respondent Nos.3-A to 3-D
Mr. S. A.P. Quadri, Advocate for Respondent Nos.2-A
13 Common Judgment in AO 15-21 & 16-21
1. The appellants in both these appeals, who are original
respondent Nos.3/1 to 3/9 and 4/A to 4/G, have challenged the
common order dated 15/01/2021 passed by the learned District
Judge-2, Ambajogai (hereinafter referred to as 'the learned
appellate court') below Exhibits-34, 40, 44 and 80 in RCA No. 44 of
2016. The application Exhibits-40 & 80 in RCA No. 44 of 2016
were fled by present respondent Nos.1/1 to 1/10, who are
respondent Nos. 5/1 to 5/10 in RCA No. 44 of 2016, where as
application Exhibits-34 and 44 in RCA No. 44 of 2016 were fled by
present respondent Nos.1-A and 2-A. Under the impugned order,
the learned appellate court has allowed all the applications
Exhibits-34, 40, 44 and 80 and thereby restrained the present
appellants from alienating the suit lands and for creating any third
party interest in the same till fnal disposal of the appeal.
2. On perusal of the impugned order, it appears that the
learned appellate court by relying upon certain photographs in
respect of display of board named as 'Satwaji Nagar' on the suit
property, came to conclusion that the present appellants were
trying to create third party interest in the suit land by developing
the same into plots and it would create complications and addition
of many parties if those plots are sold.
14 Common Judgment in AO 15-21 & 16-21
3. The learned senior counsel for the appellants strongly
submitted that the predecessor of appellants had in fact purchased
the suit land, comprising Survey No. 97 to the extent of 16 Acres
24 Gunthas, Survey No. 102 to the extent of 16 Acres 20 Gunthas
and Survey No. 134 to the extent of 19.5 Gunthas by way of
registered sale deed dated 11/10/1958 and since then the suit
land is in possession of the appellants and their forefathers. One
Gulam Dastgir had fled RCS No. 36 of 1963 for claiming 1/3rd
share in the suit land, wherein Ahemad Ali i.e. the predecessor of
present respondent No.2, was party as defendant in the said suit.
During pendency of that suit, Ahemad Ali died and therefore, his
written statement was adopted by present respondent No.2 -
Azeemunisa Begum ( in AO No.15 of 2021), who is also no more.
The suit was decided on 27/11/1972 and it was held that the
appellants are the owners of the suit land. In the said suit,
Ahemad Ali had admitted share of the appellants in the suit land.
However, Azeemunisa Begum, despite being the party to that suit,
fled another suit bearing RCS No. 215 of 1994 alongwith Sayeeda
Begum, claiming ownership over the suit land under one
Hibanama. However, that suit was also dismissed on 20/04/2016,
against which RCA No. 44 of 2016 is pending. Not only this, but
legal heirs of Azeemunisa Begum, who are the present respondent
Nos.2-A and 2-B, had fled third suit bearing RCS No. 3 of 2001,
which was decided prior to RCS No. 215 of 1994 i.e. on
31/10/2012. In that suit, the Hibanama theory was again raised,
but it was rejected by the concerned court. The learned counsel
for the appellants, thus, submitted that in earlier three rounds of
litigation it has been established that the appellants are the
owners and possessors of the suit land since beginning and the
15 Common Judgment in AO 15-21 & 16-21
decrees of RCS No. 38 of 2016 and RCS No. 3 of 2001 have attained
fnality and therefore, the contesting respondents in the present
appeals cannot raise the point of ownership again and again. He
pointed out that earlier to passing of impugned order, the learned
appellant court had in fact rejected two applications of the
contesting respondents whereby status-quo was claimed, by
observing that the appellants are already declared owners and
possessors by the competent civil court. Thus, he fnally submits
that there should be an end to the litigation which is being fought
by third generation of the contesting parties and requested to allow
the appeals by setting aside the impugned order.
4. On the contrary, the learned counsel for the contesting
respondent Nos. 2-A and 3-A, who are the legal heirs of
Azeemunisa Begum and Sayeeda Begum i.e. original respondent
Nos.2 & 3, strongly opposed the submissions made on behalf of
the appellants. He pointed out that earlier applications for status-
quo fled by the contesting respondents, were not decided on
merits but those were rejected being unattended. He submits that
if the impugned order is set aside, then the appellants will
defnitely sell the suit land, which will give rise to more
complications and may defeat right of present contesting
respondents. He also pointed out as to how the sale deed dated
11/10/1958 executed in favour of predecessor of the appellants,
was void-abinitio. He further submits that principle of res
judicata is not at all applicable to the applications for claiming stay
to the alienation as every such application can be made on fresh
cause of action and by considering the change in circumstances.
He pointed out that the suit land was in fact in possession of the
16 Common Judgment in AO 15-21 & 16-21
Government and not of the appellants. As such, he prayed for
dismissal of the appeals. In alternative, he submits that
expeditious hearing and disposal of appeals is already directed.
5. On the other hand, the learned counsel for respondent
Nos.3-A to 3-D in A.O. No. 16 of 2021 submitted that an
appropriate order might be passed.
6. With the assistance of the learned counsel for rival parties, I
have gone through the entire documents produced by the rival
parties on record alongwith the impugned order. The respective
learned counsel for the contesting parties have also relied on
certain judgments, which I would like to discuss at appropriate
stage hereinafter.
7. On going through the impugned order in both these appeals,
which is commonly passed by the learned appellate court below
Exhibits-34, 40, 44 and 80, it is evident that present respondent
Nos.2-A to 2-B and 3 as well as the legal representatives of 1/1 to
1/10 have fled these applications restraining the present
appellants, who are the legal heirs of Umaji Satwaji Shep and
Madhavrao Satwaji Shep, from creating third party rights over the
suit land and alienating the same till fnal disposal of the appeal.
The learned senior counsel for the appellants vehemently
submitted that despite there was bar under the principle of res-
judicata the learned appellate court decided all these applications
for seeking temporary injunction in favour of the original
appellants and legal representatives of original respondent No.5 in
the appeal. He pointed out that earlier also respondent No.2-A
17 Common Judgment in AO 15-21 & 16-21
had fled application below Exhibit-56 in the appeal before the
learned appellate court for grant of status-quo pertaining to the
suit property and the same was rejected on 20/02/2020 by the
learned appellate court. He further pointed out that thereafter, the
present respondent No.3-A had also fled similar application for
maintaining status-quo by the present appellants below Exhibit-64
before the learned appellate court, but that application was also
rejected on 14/12/2020. Thus, the learned senior counsel for the
appellants submitted that there was a bar for the learned appellate
court to decide the subsequent applications for similar relief,
specially when earlier applications to that effect, were rejected. He
also placed reliance on the judgment of Hon'ble Apexc Court in
case of Arjun Singh vs. Mohindra Kumar and others, reported in
AIR 1964 SC 993, wherein it is held as under :
" Scope of the principle of res judicata is not
confned to what is contained in Section 11 but
is of more general application. Again, res
judicata could be as much applicable to
different stages of the same suit as to fndings
on issues in different suits. If the Court which
rendered the frst decision was competent to
entertain the suit or other proceeding, and had
therefore, competency to decide the issue or
matter, the circumstance that it is a tribunal of
exclusive jurisdiction or one from whose
decision no appeal lay would not by themselves
negative the fnding on the issue by it being res
judicata in later proceedings. Where the
principle of res judicata is invoked in the case
of the different stages of proceedings in the
same suit, the nature of the proceedings, the
scope of the enquiry which the adjectival law
provides for the decision being reached, as well
as the specifc provisions made on matters
touching such decision are some of the
18 Common Judgment in AO 15-21 & 16-21
material and relevant factors to be considered
before the principle is held applicable".
8. On the contrary, the learned counsel for the contesting
respondents in the present appeals strongly opposed the
submissions made on behalf of the appellants in respect of bar
under the principle of res-judicata.
9. Admittedly, as per the observations of the Hon'ble Apex
Court, the principle of res-judicata is not confned to what is
contained in Section 11 of the CPC but it also applies to the
different stages of the same proceedings. The learned senior
counsel for the appellants is relying on the rejection of similar
applications claiming status-quo against the appellants. However,
on going through the orders below those applications at Exhibits-
56 and 64 it is evident that those applications were fled only to get
restraining order till decision of applications below Exhibits-34 and
44, which are now decided under the impugned order in this
appeal. The learned appellate court has specifcally observed in
the orders passed on the application below Exhibits-56 & 64 that
the then pending applications for restraining relief, were to be
decided on merit and therefore, he was not inclined to grant relief
of status-quo in those applications. As such, nothing was decided
on merit by the learned appellate court while rejecting the
applications below Exhibits-56 & 64. As such, there cannot be
any bar for the learned appellate court for deciding the
applications for grant of temporary injunction by way of the
impugned order subsequently.
19 Common Judgment in AO 15-21 & 16-21
10. On perusal of the impugned order, it is evident that the
learned appellate court has restrained the appellants from
alienating the suit land or creating any third party interest over the
same till fnal disposal of the appeal mainly on the basis of some
photographs fled by contesting respondents, wherein one board
showing name of Satwaji Nagar was erected on the suit land,
which was divided into plots by stone markings. Further,
Tahsildar, Ambajogai had also issued one letter mentioning that
action would be taken against the persons who had erected that
board. Ultimately, the learned appellate court found that there
was possibility of alienation of the suit land during pendency of
the appeal and therefore, the impugned order was passed.
However, it is settled position that the temporary injunction of any
nature can be granted if the three things namely prima facie case,
balance of convenience and irreparable loss are established by a
person seeking such injunction. It is also settled that unless and
until all these three things are established, no injunction can be
granted. Moreover, it is also settled by the Hon'ble Apex Court in
various judgments that a party who has suppressed the material
facts from the record while obtaining favourable relief, can be
thrown out at any stage of proceeding. In view of the same, I have
to verify whether the original appellants and the legal heirs of
original respondent No.5 in RCA No. 44 of 2016, have established
the three important things for seeking relief in their favour. It has
also to be seen whether there is any suppression of material facts
by the persons, who are claiming the relief of temporary injunction
against the present appellants.
20 Common Judgment in AO 15-21 & 16-21
11. On going through the plaint in RCS No. 215 of 1994 it is
evident that Azeemunisa Begum and Sayeda Begum, who were the
daughters of one Ahemad Ali, have claimed that they be put in
Khas possession of the suit property i.e. eastern 1/2 portion of
Survey Nos.97, 102 and 134 by dispossessing the defendants or
any other person found in possession of those lands. In the said
suit Azeemunisa Begum and Sayeda Begum had made their real
brothers Munawar Ali and Habeeb Ali as party defendant Nos.1
and 2 and also present appellants and legal heirs of Gulam
Mohamood s/o Gulam Dastgir Saheb and others as remaining
defendants. On perusal of the plaint itself, it appears that
daughters of Ahemad Ali namely Azeemunisa Begum and Sayeda
Begum had claimed that their father Ahemad Ali orally gifted the
suit property to them on 04/03/1957 and thereafter executed an
agreement of memorandum of oral gift on 05/04/1957 to that
effect and therefore, on the basis of said oral gift they became
owners of the suit property.
12. On the contrary, the present appellants had resisted the suit
by fling written statement mentioning that they had in fact
purchased the suit property from father of Azeemunisa Begum and
Sayeda Begum by way of a registered sale deed dated 11/10/1958
through their predecessor Umaji and Madhav for consideration of
Rs.3,000/- alongwith proportionate share in well and four mango
trees. They contended that the present original respondent Gulam
Dastgir s/o Abdul Quadar had fled suit bearing RCS No. 36 of
1963, wherein deceased Ahemad Ali during his life time had
admitted the fact of the aforesaid sale deed and after that
Azeemunisa Begum and Sayeda Begum also admitted the same
21 Common Judgment in AO 15-21 & 16-21
without raising any objection on the ground of the aforesaid
Hibanama (oral gift). The appellants have also produced various
documents in support of their claim in the written statement in
RCS No. 215 of 1994.
13. The judgment in RCS No. 36 of 1963 indicates that there
were three shares in lands bearing Survey Nos. 97, 102 and 134,
situated at village Shepwadi. One Gulam Mohmood Gulam Dastgir
and Gulab Gaus Abdul Quadar were having share to the extent of
25% each and one Ahmed Ali Mohmad Munawar Ali, who was
father of Azeemunisa Begum and Sayeda Begum, was having
eastern side half share. The predecessor of appellants by name
Satwaji was possessing those entire lands since prior to 1956.
However, in the year 1958 Ahmed Ali sold his half share in those
lands towards eastern side, that means the suit properties to
original defendant Nos.3 & 4 i.e. Umaji Satwaji Shep and
Madhavrao Satwaji Shep by way of registered sale deed dated
11/10/1958. However, thereafter as per the provisions of
Hyderabad Tenancy Act, 1950 under Section 98-C, Umaji and
Madhavrao paid the required fne and validated earlier sale deed
on 19/12/1960. Therefore, since 1958, Umaji and Madhavrao were
in possession of the suit properties. However, Gulam Dastgir
thereafter fled RCS No. 36 of 1963 against Umaji and Madhav and
others for partition and separate possession of his 1/4 share
towards western side in the aforesaid lands. The record further
shows that Ahemad Ali who was party to that suit, had fled
written statement in the said suit and thereby agreed that he had
sold the suit property to Umaji and Madhav by way of registered
sale deed, which was validated thereafter under the order dated
22 Common Judgment in AO 15-21 & 16-21
19/12/1960 passed by Tahasildar, Ambajogai under Section 98-C
of the Hyderabad Tenancy Act in File No.409 of 1959 as required
permission for the sale deed was not sought at the relevant time.
It is extremely important to note that during pendency of that suit,
Ahmed Ali died in the year 1969 and therefore, his legal heirs were
brought on record. The name Azeemunisa Begum was shown as
Abeda Begum in the said suit being the legal heirs of deceased
Ahmed Ali. Moreover, Sayeda begum was also party to that suit. It
is to be noted that Azeemunisa Begum and Sayeda Begum
alongwith other legal heirs of Ahemad Ali, had adopted written
statement earlier fled by Ahemad Ali and as such, they admitted
the fact of selling the suit land to Umaji and Madhav. Thus, it
clearly indicates that Azeemunisa Begum and Sayeda Begum did
not raise any objection by mentioning that there was an oral gift in
their favour in respect of the suit properties by their father
Ahemad Ali. On the contrary, they admitted the fact that the suit
properties were sold to the Umaji and Madhav vide registered sale
deed dated 11/10/1958, which was also validated thereafter in due
14. It further reveals that though Umaji and Madhav were in
possession of the suit properties since 1958 but the plaintiffs and
other defendants in RCS No. 36 of 1963 lodged false proceeding
under Section 145 of Cr.P.C. to deprive Umaji and Madhav of the
suit lands. Those persons by joining hands with concerned
authorities, caused the suit lands to be forfeited by Government as
per the order dated 25/04/1991 passed by concerned Taluka
Magistrate. However, Umaji and Madhav had challenged the said
decision by fling Revision No. 40 of 1991 before Additional
23 Common Judgment in AO 15-21 & 16-21
Collector, Ambajogai and the same was allowed on 05/08/1991
and the earlier decision of Tahsildar dated 25/04/1991 was
quashed and set aside. Against the said order of Additional
Collector, Ambajogai, an Appeal No. 185 of 1991 was fled against
Umaji and Madhav by those plaintiffs and other defendants. But
this court rejected the said appeal vide order dated 20/07/1992.
Thus, it is evident that the suit properties were in possession of
Government from 1976 till 15/07/1994. Since after the order of
this court, the Executive Magistrate, Ambajogai passed order dated
29/06/1994 and gave actual possession of the suit properties to
Umaji and Madhav on 15/07/1994 under panchanama and
possession receipt. Thus, it is clearly evident that the suit
properties were never in possession of Azeemunisa Begum and
Sayeda Begum but it was in possession of Umaji and Madhav from
1956 to 1976 and thereafter from 15/07/1994 till today. It is also
evident that 1/4th share each in the land Survey No.97, 102 and
134 was given to respective fathers of original defendant Nos.5 & 6
as well as original defendant Nos.7 to 9 in the execution
proceeding No. 6 of 1973 fled as per the decree in RCS No.36 of
1963 on 13/01/1973.
15. It is extremely important to note that this court in Criminal
Writ Petition No. 410 of 1997 fled by legal heirs of Gulam Dastgir
and Habeeb Ali i.e. son of Ahmed Ali, has made following
10. At this juncture, I would like to mention that the
second party had claimed actual possession of
the landed property in Regular Civil Suit No. 272
of 1973 and the competent civil court granted
this relief in favour of the second party. In view
24 Common Judgment in AO 15-21 & 16-21
of this position, the party No.1 cannot claim
possession of the disputed lands. Certain orders
were passed by the Executive Magistrate in the
past because that time, circumstances justifed
to take action under section 145 Criminal
Procedure Code. But after fnalization of
proprietary rights in favour of the second party,
the position becomes different. It is the second
party who has got legal right to possess the
disputed lands. Under the circumstance, it
cannot be said that the Executive Magistrate
should restore the disputed lands to party No.1
on the ground that the question of title or
ownership is unknown to the proceedings under
11. The cases relied upon by Shri Khader, learned
counsel can very well be distinguished on facts.
The cases relied upon by Shri Khader, learned
counsel, do not come to the rescue of Party No.1.
It is true that on the background of pendency of
civil litigation for possession, the Executive
Magistrate should not have initiated a parallel
criminal proceeding under Section 145 Criminal
Procedure Code. In the civil court, the parties
were in a position to obtain interim orders such
as injunction or appointment of receiver for the
purpose of protection of the disputed property
during pendency of the civil litigation. But
simply because wrong is committed by the
Executive Magistrate in the matter of initiation of
proceedings under Section 145 Criminal
Procedure Code on the background of pendency
of civil suit, it cannot be said that the Executive
Magistrate should now ignore the ultimate relief
granted by civil court in favour of second party
and direct restoration of possession to Party
No.1. The decree of civil court for possession has
achieved fnality in law and therefore, the
Executive Magistrate is bound to obey the decree
of civil court.
12. The civil court has settled the rights of second
party and as a consequence thereof, the actual
possession of the disputed lands should go to
25 Common Judgment in AO 15-21 & 16-21
the second party. Directing restoration of
possession in favour of Party No.1 by Executive
Magistrate would be an abuse of process of the
court."
Thus from the aforesaid observations of this court it is clearly
evident that the civil court had already settled right of Umaji and
Madhav being the owner of the suit properties and therefore,
refused to entertain the aforesaid criminal writ petition. Not only
this but the Executive Magistrate while passing order dated
29/06/1994 had observed that Umaji and Madhav had purchased
the suit properties vide registered sale deed by referring all the
earlier civil proceedings bearing RCS Nos. 36 of 1963, 272 of 1973,
40 of 1991, 41 of 1991, Appeal No.6 of 1980 and order of this court
in Proceeding No.185 of 1991.
16. It is extremely important to note that Azeemunisa Begum and
Sayeda Begum, who have fled the original appeal RCA No. 44 of
2016 on rejection of their RCS No. 215 of 1994, were parties in suit
bearing RCS No. 36 of 1963, wherein civil rights of Umaji and
Madhav were crystallized by the competent civil court and they
had also admitted the position that the suit properties were sold
by their father to Umaji and Madhav by way of registered sale deed
dated 11/10/1958 after being impleaded in the suit and by
adopting the written statement of Ahmed Ali. It is also important
to note that though Azeemunisa Begum and Sayeda Begum were
party to that suit, they suppressed the entire earlier proceedings
and even the observations of this court in respect of creation of
legal right by Umaji and Madhav over the suit properties while
fling the subsequent suit bearing RCS No. 215 of 1994. This
26 Common Judgment in AO 15-21 & 16-21
suppression of material facts by Azeemunisa Begum and Sayeda
Begum needs to be taken seriously and they can even be thrown
out from the proceeding for that reason as per the observation of
Hon'ble Apex Court in so many judgments that fraud vitiates
17. The learned counsel for respondent Nos.1/1 to 1/10 relied
upon various judgments as follows :
1) Wander Ltd. and another vs. Antox India P. Ltd,
2) Maharwal Khewaji Trust (Regd.) Faridkot vs.
3) Sunil s/o Madanlal Agrawal vs. Jawaharlal s/o
Nandlal Chittarke, 2012(2) Mh.L.J.254 and
4) Prakash Ahuja vs. Ganesh Dhonde and others,
It has been observed in the above judgments that the nature
of the property cannot be permitted to be changed and for avoiding
multiplicity of proceedings, temporary injunction has to be granted
for restraining further alienation during pendency of appeal or
proceeding. It has also been observed in the aforesaid judgments
that discretion exercised by the lower court is not to be interfered
with in appeal. However, all these observations will be applicable
to the party who has come with clean hands before the court. It is
a principle of law that who seeks equity, must do the same.
However, in this case, the record prima facie indicates that
ownership of Umaji and Madhav over the suit properties was
established twice in the earlier proceedings which remained
unchallenged and thereby attained fnality. Further, by giving
complete go-bye to the earlier proceedings, Azeemunisa Begum and
Sayeda Begum fled another suit knowing well that Umaji and
27 Common Judgment in AO 15-21 & 16-21
Madhav were declared owner of the suit properties by competent
civil courts, suppressed those earlier proceedings and came with
concocted story of oral gift, which has been negatived by the trial
18. Further, it is also extremely important to note that the earlier
dispute was between Satwaji i.e. father of Umaji and Madhav and
the earlier owners of the suit properties. Thereafter, Umaji and
Madhav continued the proceedings and established their
ownership over the suit properties. Now their next generation is
fghting for getting fruits of earlier decrees. Likewise, the third
generation of original owner Ahmed Ali has continued the litigation
despite it has already been established that Ahmed Ali had sold
the suit properties. Under such circumstances, I do not fnd that
there is prima facie case established by Azeemunisa Begum and
Sayeda Begum. Per contra, it appears that they have suppressed
the earlier proceedings despite being party to it and fled RCS
No.215 of 1994 on account of new ground of alleged oral gift
theory. It is also important to note that if the injunction granted
by the learned appellate court is allowed to be continued further,
then there will be no end to the present litigation and it will
continue for indefnite period leaving the appellants deprived from
getting fruits of earlier proceedings. Thus, it has been revealed
that twice it has been established by the competent civil court that
Umaji and Madhav were owners of the the suit properties and the
said fact remained unchallenged. There should be an end to the
litigation specially when the fnding of competent civil court
determining the legal ownership of Umaji and Madhav over the suit
28 Common Judgment in AO 15-21 & 16-21
19. Therefore, considering all these facts, I come to the
conclusion that the learned appellate court has wrongly restrained
the appellants from alienating the suit properties till decision of
appeal only on the basis of certain display board and by ignoring
the vital ingredients required for granting equitable relief of
temporary injunction. The record clearly shows that Azeemunisa
Begum and Sayeda Begum failed to establish prima facie case in
their favour for securing the temporary injunction as prayed.
Moreover, they have also suppressed the earlier proceedings while
fling RCS No.215 of 1994. It is to be noted here that there was no
injunction of any kind was running against the present appellants
during pendency of the suit. In fact, Azeemunisa Begum and
Sayeda Begum despite fling the application for grant of temporary
injunction in the suit, did not press the same and requested to the
trial court to hear the same alongwith the suit. It is signifcant to
note that the advocate for the present appellants had in fact made
statement before the trial court that the appellants would not
alienate the suit properties till the decision of the suit. Thus, on
dismissal of the suit, the said statement also become useless and
it can not be considered as a ground for granting further
injunction in favour of Azeemunisa Begum and Sayeda Begum. By
considering all these aspects, I certainly fnd that the learned
appellate court has defnitely erred in restraining defendant Nos.3
& 4 namely, Umaji and Madhav and their legal representatives,
who are the appellants in this appeal from alienating the suit
properties and creating third party interest thereon till fnal
disposal of the appeal. As such, the impugned order is liable to be
quashed and set aside.
29 Common Judgment in AO 15-21 & 16-21
20. After the impugned order in these appeals is quashed and set
aside, the learned counsel for the respondent Nos. 2A and 3A
requested for continuation of impugned order for certain period
since he wants to challenge the order of this Court before
Honourable Supreme Court. The learned counsel Mr. Niranjan M.
Deshpande, holding for Mr. M. K. Deshpande, the learned counsel
for appellants, strongly opposed the submission made on behalf of
respondent Nos. 2A and 3A.
21. Since the learned appellate Court i.e. District Court at
Ambejogai had granted relief in favour of respondents and thereby
restrained the present appellants from alienating the suit property
till disposal of appeal and the respondents now want to challenge
the order of this Court setting aside the said order, the said order
can be continued for certain period considering the ensuing Diwali
Vacation which starts from tomorrow. Accordingly following order
is passed.
1. Both the appeals are allowed and the
impugned common order dated 15/01/2021
passed by the learned appellate court i.e.
District Judge-2, Ambajogai in RCA No.44 of
2016 below applications Exhibits-34, 40, 44
and 80 is quashed and set aside.
30 Common Judgment in AO 15-21 & 16-21
2. Both the appeals are accordingly disposed of.
3. Pending civil applications, if any, accordingly
stand disposed of.
4. The order of learned appellate Court i.e. the
impugned order in these appeals is
continued for further period of four weeks.
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The Bombay High Court recently held that a temporary injunction can be granted only if the applicant approaches the court without any suppression of material facts and reiterated that such an injunction can be granted only if a prima facie case, balance of convenience, and irreparable loss to the person seeking the injunction is established.
Justice Sandeep Kumar C. More of the Aurangabad bench set aside a temporary injunction restraining the appellants from alienating the suit land in a property dispute as the respondents had suppressed prior litigation related to the dispute from the court.
The court referred to various judgements in which Supreme Court observed that discretion of the lower court should not be interfered with in an appeal. The court stated, "all these observations will be applicable to the party who has come with clean hands before the court. It is a principle of law that who seeks equity, must do the same."
There were three shares in a land situated at village Shepwadi. One Gulam Dastgir and Gulab Gouse had 25% each and one Ahmed Ali had half of the land. In 1958, Ahmed Ali sold his half i.e., the suit land to Umaji Satwaji Shep and Madhavrao Satwaji Shep. In 1963, Ghulam Dastgir filed a suit against Umaji and Madhav and others for partition of the land. In that suit, Ahmed Ali via written statement stated that he had sold his property to Umaji and Madhav via registered sale deed. Ahmed Ali died during the pendency of the suit. His daughters Azeemunisa Begum and Sayeda Begum along with other legal heirs were brought on record. They adopted the written statement filed by Ahmed Ali.
Azeemunisa and Sayeda filed another suit in 1994 for ownership over the suit property under a hibanama (gift deed). That suit was dismissed in 2016. Appeal against the judgement is pending before the District Judge (appellate court). In this appeal, the legal heirs of Gulam Dastgir, Azeemunisa and Sayeda filed applications for restraining the present appellants, i.e., legal heirs of Umaji and Madhav from creating third party rights over the suit property and alienating the same till final disposal of the appeal. The appellate court allowed the applications. The present appellants approached the High Court against this order.
Legal heirs of Azeemunisa filed another suit in 2001 which was decided prior to Azeemunisa's 1994 suit. In that suit, the court rejected the hibanama theory.
Counsel for the appellants contended that legal heirs of Azeemunisa and Sayeda had earlier filed applications before the District Judge for grant of status quo which was rejected. Hence there was a bar for the court to decide the subsequent applications for similar relief when earlier applications were rejected.
Counsel for the legal heirs of Azeemunisa and Sayeda pointed out that the applications for status quo filed by them were not decided on merits. Res judicata is not applicable to the applications to restrain the alienation as every such application can be made on fresh cause of action and by considering the change in circumstances.
The District Judge had specifically observed while rejecting the applications for status quo that the pending applications for restraining relief were to be decided on merit.
The court noted that principle of res judicata is not confined to section 11 of the CPC but also applies to different stages of the same proceedings. The court said that applications for status quo were not rejected on merits by the appellate court. Hence, there is no bar for the appellate court to decide the application for grant of temporary injunction, the court said.
The court said that such a temporary injunction can be granted only if prima facie case, balance of convenience, and irreparable loss are established by the applicant. Further, it has to be seen whether there was any suppression of material facts by the persons claiming the relief of temporary injunction against the present appellants.
The court noted that in the 1994 suit, Azeemunisa and Sayeda claimed that their father Ahmed Ali orally gifted the land to them and thereafter executed an agreement of memorandum of oral gift to that effect.
However, Azeemunisa and Sayeda did not raise any objection to Ahmed Ali's written statement in Gulam Dastgir's 1963 suit by mentioning the oral gift, the court observed.
The court perused the judgment in Gulam Dastgir's 1963 suit and noted that the civil court settled the right of Umaji and Madhav as the owners of the land. Hence, the High Court refused to entertain a criminal writ petition filed by legal heirs of Gulam Dastgir in 1977.
The court said that Azeemunisa and Sayeda were parties in the 1963 suit wherein a competent court crystallized the civil rights of Umaji and Madhav. Further, they have admitted that their father sold the land to Umaji and Madhav by adopting his written statemen in the 1963 suit. Azeemunisa and Sayeda suppressed the entire proceeding of that suit and even the observations of High Court about legal right of Umaji and Madhav over the land while filing the 1994 suit, the court stated.
The court said that this suppression of material facts needs to be taken seriously and Azeemunisa can even be thrown out from the proceedings for that reason.
The present respondents relied on many judgements which said that a temporary injunction has to be granted to restrain alienation of land during pendency of cases to avoid multiplicity of proceedings. Those judgements also observed that discretion of the lower court is not to be interfered with in appeal.
The court said that these observations will be applicable to the party who has come with clean hands before the court. The record indicates that ownership of Umaji and Madhav over the land was established twice before which remained unchallenged and attained finality. Azeemunisa gave a complete go-by to the proceedings while filing another suit knowing well that Umaji and Madhav were declared owners of the land by competent civil courts, the court stated.
Hence, the court did not find a prima facie case established by the Azeemunisa in these circumstances.
The court concluded that the appellate court wrongly restrained the appellants from alienating the land till decision of appeal.
Case no. – Appeal From Order No. 15 of 2021
Case title – Umaji s/o Satwaji Shep (Died) by L.Rs. and Ors. v. Gulam Mohmood s/o Gulam Dastgir (Died) By L.Rs. and Ors.
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For Petitioner(s) : Mr. S.S. Ladrecha with
1. In the wake of instant surge in COVID – 19 cases and spread
of its highly infectious Omicron variant, abundant caution is being
maintained, while hearing the matters in the Court, for the safety
of all concerned.
2. The present case, originally, was filed as criminal misc. third
bail application. However, upon an application being moved on
behalf of the petitioner seeking to treat the bail application as
criminal revision petition, the same was allowed by this Hon’ble
Court order dated 14.03.2022. Accordingly, the said bail
application was treated and registered as criminal revision
petition, which is listed before this Court for consideration.
3. The prayer made in the present case, as originally filed,
“It is, therefore, most respectfully and humbly
prayed that this bail application under Section 167 (2)
Crpc. may kindly be allowed and the petitioners may kindly
be ordered to be release on bail in FIR no. 273/2021
registered on 16.10.2021 Police Station Osiyan at district
4. Learned counsel for the petitioner submits that an F.I.R.,
bearing No. 273/2021 was lodged on 16.10.2021 under Section
363 I.P.C., by one Chhoturam S/o Ramnarayan stating that his
brother’s daughter, Sumitra was abducted by the present
accused–petitioner alongwith other persons; whereafter, the
petitioner was taken into custody on 19.10.2021, and remained as
such for one day, until ordered to be released by the competent
court on 20.10.2021; however, subsequently the petitioner was
again arrested and took into custody. As per learned counsel, the
total period of the petitioner’s custody was beyond the mandated
time period, as prescribed under Section 167(2) Cr.P.C.
Relevant portion of Section 167 Cr.P.C reads as follows: -
167. Procedure when investigation cannot be
(2) The Magistrate to whom an accused person is forwarded
under this section may, whether he has or has not jurisdiction
to try the case, from time to time, authorise the detention of
the accused in such custody as such Magistrate thinks fit, for a
term not exceeding fifteen days in the whole; and if he has no
jurisdiction to try the case or commit it for trial, and considers
further detention unnecessary, he may order the accused to
be forwarded to a Magistrate having such jurisdiction:
[(a) the Magistrate may authorise the detention of
the accused person, otherwise than in custody of
the police, beyond the period of fifteen days, if he is
satisfied that adequate grounds exist for doing so,
but no Magistrate shall authorize the detention of
the accused person in custody under this paragraph
relates to an offence punishable with death,
imprisonment for life or imprisonment for a
(ii) sixty days, where the investigation relates to
any other offence, and, on the expiry of the said
period of ninety days, or sixty days, as the case
may be, the accused person shall be released on
bail if he is prepared to and does furnish bail, and
every person released on bail under this sub-
section shall be deemed to be so released under
the provisions of Chapter XXXIII for the purposes
[(b) no Magistrate shall authorise detention of the accused
in custody of the police under this section unless the
accused is produced before him in person for the first time
and subsequently every time till the accused remains in
the custody of the police, but the Magistrate may extend
further detention in judicial custody on production of the
accused either in person or through the medium of
(c) no Magistrate of the second class, not specially
empowered in this behalf by the High Court, shall
authorise detention in the custody of the police.
[Explanation I.—For the avoidance of doubts, it is hereby
declared that, notwithstanding the expiry of the period
specified in paragraph (a), the accused shall be detained in
custody so long as he does not furnish bail.]
[Explanation II.—If any question arises whether an accused
person was produced before the Magistrate as required under
clause (b), the production of the accused person may be
proved by his signature on the order authorising detention or
by the order certified by the Magistrate as to production of the
accused person through the medium of electronic video
[Provided further that in case of a woman under eighteen
years of age, the detention shall be authorised to be in the
custody of a remand home or recognised social institution.]
5. Learned counsel for the petitioner further submits that the
petitioner is entitled to statutory / default bail, and that his right
to seek the same has accrued on the ground that the period, as
laid down in Section 167 (2) Cr.P.C., of 90 days, was exceeded and
he was kept in custody for a total period of 92 days.
5.1 Learned counsel also submits that the petitioner was
arrested on 19.10.2021 at 11:00 a.m. and was in custody until
20.10.2021 i.e. one whole day, and from 27.10.2021 to
24.01.2022, and also, he was in custody for 5 days in October, 30
days in November, 31 days in December and 24 days in January,
until the challan i.e. the chargesheet was filed on 24.01.2022.
6. Learned counsel for the petitioner placed reliance on the
Ors., Criminal Appeal Nos.185-186 of 2022, decided on
07.02.2022, wherein the Hon’ble Apex Court observed as under:-
“8. The only point that arises for our consideration in
this case is whether an Accused is entitled for statutory bail
Under Section 167(2), Code of Criminal Procedure on the
ground that cognizance has not been taken before the expiry
of 60 days or 90 days, as the case may be, from the date of
remand.. . . .
9. . . . . The scheme of the provisions relating to remand of
an accused first during the stage of investigation and
thereafter, after cognizance is taken, indicates that the
legislature intended investigation of certain crimes to be
completed within the period prescribed therein, according to
this Court in Bhikam chand Jain (supra). This Court held that
in the event of investigation not being completed by the
investigating authorities within the prescribed period, the
Accused acquires an indefeasible right to be granted bail, if he
offers to furnish bail. This Court was of the firm opinion that if
on either the 61st day or the 91st day, an Accused makes an
application for being released on bail in default of charge-
sheet having been filed, the court has no option but to release
the Accused on bail. However, once the charge-sheet was filed
within the stipulated period, the right of the Accused to
statutory bail came to an end and the Accused would be
entitled to pray for regular bail on merits.. . . .It was held by
this Court that the filing of charge-sheet is sufficient
compliance with the provisions of proviso (a) to Section
167(2), Code of Criminal Procedure and that taking of
cognizance is not material to Section 167. The scheme of
Code of Criminal Procedure is such that once the investigation
stage is completed, the court proceeds to the next stage,
which is the taking of cognizance and trial. During the period
of investigation, the Accused is under the custody of the
Magistrate before whom he or she is first produced, with such
Magistrate being vested with power to remand the Accused to
police custody and/or judicial custody, up to a maximum
period as prescribed Under Section 167(2). Acknowledging the
fact that an Accused has to remain in custody of some court,
this Court concluded that on filing of the charge-sheet within
the stipulated period, the Accused continues to remain in the
custody of the Magistrate till such time as cognizance is taken
by the court trying the offence, when the said court assumes
custody of the Accused for purposes of remand during the trial
in terms of Section 309, Code of Criminal Procedure. This
Court clarified that the two stages are different, with one
following the other so as to maintain continuity of the custody
of the Accused with a court.
10. It is clear from the judgment of this Court in
Bhikamchand Jain (supra) that filing of a charge-sheet
is sufficient compliance with the provisions of Section
167, Code of Criminal Procedure and that an accused
cannot demand release on default bail Under Section
167(2) on the ground that cognizance has not been
taken before the expiry of 60 days.
11.. . . . In Sanjay Dutt (supra), this Court held that the
indefeasible right accruing to the accused is enforceable
only prior to the filing of challan and it does not survive
or remain enforceable, on the challan being filed. It was
made clear that once the challan has been filed, the
question of grant of bail has to be considered and
decided only with reference to the merits of the case
under the provisions relating to grant of bail to an
accused after the filing of the challan.. . . .
12. In Madar Sheikh (supra) … this Court held that the
right conferred on an accused Under Section 167(2)
cannot be exercised after the charge-sheet has been
submitted and cognizance has been taken. . . .
15. A close scrutiny of the judgments in Sanjay Dutt (supra),
Madar Sheikh (supra) and M. Ravindran (supra) would show
that there is nothing contrary to what has been decided in
Bhikamchand Jain (supra). In all the above judgments which
are relied upon by either side, this Court had categorically laid
down that the indefeasible right of an Accused to seek
statutory bail Under Section 167(2), Code of Criminal
Procedure arises only if the charge-sheet has not been
filed before the expiry of the statutory period. Reference
to cognizance in Madar Sheikh (supra) is in view of the fact
situation where the application was filed after the charge-
sheet was submitted and cognizance had been taken by the
trial court. Such reference cannot be construed as this Court
introducing an additional requirement of cognizance having to
be taken within the period prescribed under proviso (a) to
Section 167(2), Code of Criminal Procedure, failing which the
Accused would be entitled to default bail, even after
filing of the charge-sheet within the statutory period. It
is not necessary to repeat that in both Madar Sheikh
(supra) and M. Ravindran (supra), this Court expressed
its view that non-filing of the charge-sheet within the
statutory period is the ground for availing the
indefeasible right to claim bail Under Section 167(2),
Code of Criminal Procedure. The conundrum relating to the
custody of the Accused after the expiry of 60 days has also
been dealt with by this Court in Bhikamchand Jain (supra). It
was made clear that the Accused remains in custody of the
Magistrate till cognizance is taken by the relevant court.. . . ”
6.2 Suresh Kumar Bhikamchand Jain Vs. State of
Maharashtra and Ors. (2013) 1 SCC (LS) 480 wherein the
Hon’ble Apex Court, with regard to the provision of law laid down
in Section 167 Cr.P.C, observed as under:-
“From the above provision, it would be amply clear that
the Magistrate may authorise the detention of an accused
person, otherwise than in the custody of the police, beyond a
period of 15 days, if he is satisfied that there are adequate
grounds for doing so, but no Magistrate is authorised to detain
the accused person in custody for a total period exceeding 90
days where the investigation relates to an offence punishable
with death, imprisonment for life or imprisonment for a term of
not less than ten years and, 60 days where the investigation
relates to any other offence. In other words, if an accused was
ready to offer bail, once the stipulated period for the
investigation had been completed, then the Magistrate no
longer had the authority to extend the period of detention
beyond the said period of 90 days and, consequently, he
had no option but to release the accused on bail. The
language used in Sections 167(2)(a)(i) and (ii) is that on
the expiry of the period of 90 days or 60 days, as the case
may be, the accused person shall be released on bail, if he
is prepared to and does furnish bail. The direction upon the
learned Magistrate or the Trial Court is mandatory in nature and
any detention beyond the said period would be illegal.
…once a charge-sheet is filed within the stipulated time, the
question of grant of default bail or statutory bail does not
arise.. . .Whether cognizance is taken or not is not material as
far as Section 167 Code of Criminal Procedure is concerned. . .
The scheme of the Code of Criminal Procedure is such that once
the investigation stage is completed, the Court proceeds to the
next stage, which is the taking of cognizance and trial. An
accused has to remain in custody of some court. During the
period of investigation, the accused is under the custody of the
Magistrate before whom he or she is first produced. During that
stage, under Section 167(2) Code of Criminal Procedure, the
Magistrate is vested with authority to remand the accused to
custody, both police custody and/or judicial custody, for 15 days
at a time, up to a maximum period of 60 days in cases of
offences punishable for less than 10 years and 90 days where
the offences are punishable for over 10 years or even death
sentence. In the event, an investigating authority fails to file the
charge-sheet within the stipulated period, the accused is entitled
to be released on statutory bail. In such a situation, the accused
continues to remain in the custody of the Magistrate till such
time as cognizance is taken by the Court trying the offence,
when the said Court assumes custody of the accused for
purposes of remand during the trial in terms of Section 309 Code
of Criminal Procedure. The two stages are different, but one
follows the other so as to maintain a continuity of the custody of
the accused with a court.”
7. On the other hand, learned Public Prosecutor opposes, and
submits that the learned Court below, vide the impugned order,
has rightly held that once a charge sheet has been filed and
cognizance has also been taken against the accused–petitioner,
the right to claim bail under Section 167 (2) Cr.P.C. does not
subsist. And that, since the accused–petitioner made the
application seeking default/statutory bail after the charge sheet
was filed, he relinquished his right to seek bail as a matter of right
8. Learned Public Prosecutor placed reliance on the following
8.1 Sanjay Dutt Vs. State through C.B.I. Bombay (1994) 5
SCC 410, relevant portion of which reads as under:
“(2)(b) The 'indefeasible right' of the accused to be
released on bail in accordance with Section 20(4)(bb) of the
TADA Act read with Section 167(2) of the CrPC in default of
completion of the investigation and filing of the challan within
the time allowed, as held in Hitendra Vishnu Thakur is a right
which enures to, and is enforceable by the accused only from
the time of default till the filing of the challan and it does not
survive or remain enforceable on the challan being filed. If the
accused applies for bail under this provision on expiry of the
period of 180 days or the extended period, as the case may
be, then he has to be released on bail forthwith. The accused,
so released on bail may be arrested and committed to custody
according to the provisions of the CrPC. The right of the
accused to be released on bail after filing of the challan,
notwithstanding the default in filing it within the time
allowed, is governed from the time of filing of the
challan only by the provisions relating to the grant of
bail applicable at that stage.”
8.2 Mohamed Iqbal Madar Sheikh and Ors. Vs. State of
Maharashtra (1996) 1 SCC 722, relevant portion of which reads
“So far the facts of the present case are concerned, the
appellant Nos. 1 to 6 were taken into custody on 16.1.1993.
The charge-sheet was submitted on 30.8.1993; obviously
beyond the statutory period under Section 20(4)(b). There is
nothing on record to show that provisions of Section 20(4(bb)
were applied in respect of appellants. They had become
entitled to be released on bail under proviso (a) to Section
167(2) of the Code read with Section 20(4)(b) of the TADA.
But it is an admitted position that no application for bail
appellants. Unless applications had been made on
behalf of the appellants, there was no question of their
being released on ground of default in completion of the
investigation within the statutory period.”
9. The contention of the learned counsel for the petitioner that
the period, during which the accused–petitioner was arrested for
the first time, and detained in custody, before which the additional
offences were added by the investigation officer, would be
computed and therefore the total period of detention of the
accused person in custody would exceed 90 days, making him
entitled to default/statutory bail.
10. Heard learned counsel for the parties as well as perused the
record of the case and the judgments cited at the Bar.
11. This Court therefore observes that the following two issues
11.1 Whether the learned Court below, in computing the
total period of detention of accused person as under Section 167
(2) Cr.P.C. , during which the accused – applicant was in custody,
was right to exclude the period during which he was previously
remained in custody, and subsequently released on bail i.e. before
which the additional offences against him were found to be made
out by the investigating officer.
11.2 Whether a bail application, under Section 167 (2)
Cr.P.C., seeking default/statutory bail, filed after the charge sheet,
although the charge sheet has been filed after the expiry of the
prescribed statutory time limit under Section 167 (2) Cr.P.C.,
would be maintainable.
12. This Court observes that the accused–petitioner was initially
arrested on 19.10.2021, in connection with alleged commission of
offence under Section 363 I.P.C. and was presented before a
Magistrate and was granted bail on 20.10.2021. Subsequently,
during the period of investigation, the investigating officer filed an
application under Section 437(3) Cr.P.C. before the Judicial
Magistrate, Osiyan upon finding that the accused– petitioner had
allegedly committed offences under other Sections of the I.P.C.,
namely Sections 457, 342, 366A, 376(2)(n), 376D, along with
offences under the Protection of Children from Sexual Offences
Act, 2012 (POCSO), namely Sections 3/4, 5(G)/6 which was
accepted by the learned Magistrate vide order dated 26.10.2021,
while granting permission to the investigating officer to arrest the
petitioner. In pursuance of the said order, the petitioner was
arrested again on 27.10.2021, and after being presented before
the learned Court below on 28.10.2021, he was remanded to
police custody. Subsequently, on 31.10.2021 the accused-
petitioner was remanded to judicial custody. The charge sheet was
filed on 24.01.2022.
13. This Court further observes that the impugned order, dated
24.02.2022, passed by the learned Court below, states that the
accused–petitioner made an application seeking bail before the
learned Court below, on 22.02.2022, after the charge sheet was
filed, and cognizance of the offences mentioned in the F.I.R. was
taken against him, which was within the stipulated period of 90
days as laid down in Section 167 (2) Cr.P.C., which was computed
14. This Court is also conscious of the law laid down by the
Hon’ble Apex Court in the following judgments: -
14.1 Achpal & Ors. Vs. State of Rajasthan (2019) 14 SCC
599, relevant portion of which reads as under:
“It is thus clearly indicated that the stage of
investigation ought to be confined to 90 or 60 days, as the
case may be, and thereafter the issue relating to the custody
of the Accused ought to be dealt with by the Magistrate on the
basis of the investigation. Matters and issues relating to liberty
and whether the person Accused of a charge ought to be
confined or not, must be decided by the Magistrate and not by
the Police. The further custody of such person ought not to be
guided by mere suspicion that he may have committed an
offence or for that matter, to facilitate pending investigation.
The fact of the matter is that as on completion of 90 days of
prescribed period Under Section 167 of the Code there were
no papers of investigation before the concerned Magistrate.
The Accused were thus denied of protection established by
law. The issue of their custody had to be considered on merits
by the concerned Magistrate and they could not be simply
remanded to custody dehors such consideration.
The provisions of the Code do not empower anyone to
extend the period within which the investigation must
be completed nor does it admit of any such eventuality.
There are enactments such as the Terrorist and
Disruptive Activities (Prevention) Act, 1985 and
Maharashtra Control of Organised Crime Act, 1999
which clearly contemplate extension of period and to
that extent those enactments have modified the
provisions of the Code including Section 167. In the
absence of any such similar provision empowering the
Court to extend the period, no Court could either
directly or indirectly extend such period.
We must at this stage note an important feature. In Rakesh
Kumar Paul (supra), in his conclusions, Madan B. Lokur, J.
The Petitioner is held entitled to the grant of "default
bail" on the facts and in the circumstances of this
case. The trial Judge should release the Petitioner on
"default bail" on such terms and conditions as may
be reasonable. However, we make it clear that this
does not prohibit or otherwise prevent the arrest or
re-arrest of the Petitioner on cogent grounds in
respect of the subject charge and upon arrest or re-
arrest, the Petitioner is entitled to petition for grant
of regular bail which application should be considered
on its own merit. We also make it clear that this will
not impact on the arrest of the Petitioner in any
other case.”
14.2 Rakesh Kumar Paul Vs. State of Assam (2017) 15 SCC
67 wherein the Hon’ble Apex Court made the following
“The significance of the period of 60 days or 90 days, as
the case may be, is that if the investigation is not
completed within that period then the Accused
(assuming he or she is in custody) is entitled to 'default
bail' if no charge sheet or challan is filed on the 60th or
90th day, the Accused applies for 'default bail' and is
prepared to and does furnish bail for release.
Ever since 1898, the legislative intent has been to conclude
investigations within twenty-four hours. This intention has not
changed for more than a century, as the marginal notes to
Section 167 of the Code of Criminal Procedure suggest.
However, the Legislature has been pragmatic enough to
appreciate that it is not always possible to complete
investigations into an offence within twenty-four hours.
Therefore initially, in the Code of Criminal Procedure of 1898,
a maximum period of 15 days was provided for completing the
investigations. Unfortunately, this limit was being violated
through the subterfuge of taking advantage of Section 344 of
the Code of Criminal Procedure of 1898. The misuse was
recognized in the 41st Report of the Law Commission of India
and consequently the Law Commission recommended fixing a
maximum period of 60 days for completing investigations and
that recommendation came to be enacted as the law in the
Code of Criminal Procedure of 1973. Subsequently, this period
was also found to be insufficient for completing investigations
into more serious offences and, as mentioned above, the
period for completing investigations was bifurcated into 90
days for some offences and 60 days for the remaining
Notwithstanding this, the basic legislative intent of completing
investigations within twenty-four hours and also within an
otherwise time-bound period remains unchanged, even though
that period has been extended over the years. This is an
indication that in addition to giving adequate time to complete
investigations, the Legislature has also and always put a
premium on personal liberty and has always felt that it would
be unfair to an Accused to remain in custody for a prolonged
or indefinite period.
What is forgotten is that the indefeasible right for 'default bail'
accrued to the Petitioner when the period of 60 days for
completing the investigation and filing a charge sheet came to
an end on 3rd or 4th January, 2017 and that the indefeasible
right continued till 24th January, 2017. The question is
whether during this interregnum the Petitioner was entitled to
'default bail' or not? Ordinarily, the answer would be "yes" but
in the present case, the Petitioner was not granted bail and a
charge sheet was filed against him on 24th January, 2017.
Was his indefeasible right completely taken away?
The Constitution Bench in Sanjay Dutt made it clear in
paragraph 48 of the Report that the indefeasible right
accruing to the Accused is enforceable only prior to the
filing of the charge sheet and it does not survive or
remain enforceable thereafter, if already not availed of.
In other words, the Constitution Bench took the view
that the indefeasible right of 'default bail' continues till
the charge sheet or challan is filed and it gets
extinguished thereafter.
This Court had occasion to review the entire case law on the
subject in Union of India v. Nirala Yadav MANU/SC/0580/2014
: (2014) 9 SCC 457. In that decision, reference was made to
Uday Mohanlal Acharya v. State of Maharashtra
MANU/SC/0222/2001 : (2001) 5 SCC 453 and the conclusions
arrived at in that decision. We are concerned with conclusion
(3) On the expiry of the said period of 90 days or 60
days, as the case may be, an indefeasible right accrues
in favour of the Accused for being released on bail on
account of default by the investigating agency in the
completion of the investigation within the period
prescribed and the Accused is entitled to be released
on bail, if he is prepared to and furnishes the bail as
directed by the Magistrate.
This Court also dealt with the decision rendered in Sanjay Dutt
and noted that the principle laid down by the
Constitution Bench is to the effect that if the charge
sheet is not filed and the right for 'default bail' has
ripened into the status of indefeasibility, it cannot be
frustrated by the prosecution on any pretext. The Accused can
avail his liberty by filing an application stating that the
statutory period for filing the charge sheet or challan has
expired and the same has not yet been filed and therefore the
indefeasible right has accrued in his or her favour and further
the Accused is prepared to furnish the bail bond.
It is not as if the Petitioner did not make any application for
default bail-such an application was definitely made (if not in
writing) then at least orally before the High Court. In our
opinion, in matters of personal liberty, we cannot and should
not be too technical and must lean in favour of personal
liberty. Consequently, whether the Accused makes a written
application for 'default bail' or an oral application for 'default
bail' is of no consequence. The concerned court must deal with
such an application by considering the statutory requirements
namely, whether the statutory period for filing a charge sheet
or challan has expired, whether the charge sheet or challan
has been filed and whether the Accused is prepared to and
does furnish bail. 41. We take this view keeping in mind that
in matters of personal liberty and Article 21 of the
Constitution, it is not always advisable to be formalistic or
… it would equally be the duty and responsibility of a court on
coming to know that the Accused person before it is entitled to
'default bail', to at least apprise him or her of the indefeasible
right. A contrary view would diminish the respect for personal
liberty, on which so much emphasis has been laid by this
… when the High Court dismissed the application for bail filed
by the Petitioner, he had an indefeasible right to the grant of
'default bail' since the statutory period of 60 days for filing a
charge sheet had expired, no charge sheet or challan had
been filed against him (it was filed only on 24th January,
2017) and the Petitioner had orally applied for 'default bail'.
Under these circumstances, the only course open to the High
Court on 11th January, 2017 was to enquire from the
Petitioner whether he was prepared to furnish bail and if so
then to grant him 'default bail' on reasonable conditions.
Unfortunately, this was completely overlooked by the High
It would have been another matter altogether if the
Petitioner had not applied for 'default bail' for whatever
reason during this interregnum”
of Revenue Intelligence (2021) 2 SCC 485 wherein the
“The right to be released on default bail continues to
remain enforceable if the Accused has applied for such
bail, notwithstanding pendency of the bail application; or
subsequent filing of the chargesheet or a report seeking
extension of time by the prosecution before the Court; or filing
of the chargesheet during the interregnum when challenge to
the rejection of the bail application is pending before a higher
15. This Court further observes, as aforementioned, that the
accused-petitioner was first arrested and taken into custody for a
period of one day, when an offence under Section 363 I.P.C. was
found to be made out against him. And that the accused-petitioner
was produced before a Magistrate the very next day, and was
granted bail on 20.10.2021, the same day.
16. It is clear from the record, and from what has been
enumerated above that the petitioner was, after the aforesaid
order, re-arrested on 27.10.2021 upon fresh inclusion of the
alleged offences under Sections 457, 342, 366A, 376(2)(n), 376D
IPC, along with Sections 3/4, 5(G)/6 of the POCSO Act, and the
charge-sheet was filed on 24.01.2022.
17. A bare perusal of Section 167 (2) Cr.P.C. reveals that under
sub-section (2) (a) (I) of 167 Cr.P.C., the period of 90 days would
be computed when the investigation, with regard to that particular
offence(s), began. The offence under Section 363 I.P.C. would
attract the application of Section 167 sub-section (2) (a) (ii) of
Cr.P.C. since the maximum / upper limit period of imprisonment
under the said section would be 60 days. Regardless of that fact,
this Court finds that if an additional or new offence(s) are found to
be made out by the investigating authority, against an accused,
then the computation of the period, as laid down under Section
167 Cr.P.C. would be done afresh.
17.1 Owing to the present facts and circumstances, such is the
position in the present case, wherein new offences were found to
be made out against the accused–petitioner, by the investigating
officer during the course of investigation.
18. This Court, in light of the aforementioned, finds that the
learned Court below, after appreciating relevant judicial
precedents, has rightly found that the total period of detention of
the accused-petitioner have to begun from 27.10.2021, until when
the charge sheet was filed on 24.01.2022. And therefore, the
charge sheet was rightly filed within the stipulated 90 days’ time
period as laid down under Section 167 (2) (a) (I) Cr.P.C.
19. In the present case, the accused–petitioner preferred an
application seeking bail, under Section 167 (2) Cr.P.C, on
22.02.2022 before the learned court below, at a belated stage of
about 29 days after the charge sheet was filed, i.e. on
20. Thus, the first issue is answered as that the period of 90
days is stated to be counted when the investigation for the fresh
offence(s) is started and not from the date of lodging of the FIR.
20.1 The second issue once attached to the controversy is also
answered in the following paragraphs in accordance with the
settled law as laid down by the Hon’ble Apex Court.
21. In Suresh Kumar Bhikamchand Jain (supra), the Hon’ble
Apex Court reiterated the decision of the Hon’ble Constitution
Bench in Sanjay Dutt (supra) stating that the right to
default/statutory bail accrues to the accused, and gains the status
of an ‘indefeasible right’ only after the expiry of the total period as
laid down in Section 167 (2) Cr.P.C. and until the charge-sheet is
subsequently filed.
21.1 The Hon’ble Apex Court in Sanjay Dutt (supra), laid down
in clear and cogent terms that the indefeasible right of
default/statutory bail, accruing to the accused, who is in
detention/custody, is enforceable only prior to filing of the charge-
sheet and it does not survive once the charge-sheet has been
filed; unless, the said right had already been availed of.
21.2 This implies that if the accused had made an application
seeking bail under Section 167(2) Cr.P.C. after the expiry of the
total period laid down in the said provision, but before the charge-
sheet is filed, the pendency of such an application would not affect
his right to seek such bail, even in case of filing of the charge-
sheet prior to adjudication on such application.
22. In both the aforesaid cases, and in Mohamed Iqbal Madar
Sheikh (supra), the Hon’ble Apex Court held that the said right
to seek default/statutory bail may be availed only after an
application for the same has been made by the accused, or on
behalf of the accused–applicant before the concerned Magistrate.
23. Further, in Achpal (supra) it has been clarified that unless
an extension to such a total period of detention of an accused, as
laid down under Section 167 (2) Cr.P.C, was prescribed by a
particular statute, the Courts would not be empowered to grant
any extension of time for detention of an accused or overlook the
delay in filing the charge sheet in case an application seeking bail
by the accused person(s) has been preferred.
24. The Hon’ble Apex Court, in Rakesh Kumar Paul (supra),
after delving deep into statutory interpretation of legislation, and
the right to life and personal liberty of an accused, and in M.
Ravindran (supra), reinforced the ratio decidendi, as laid down
in aforementioned case laws, and held that the indefeasible right
accruing to the accused is enforceable only prior to the filing of
the charge sheet, and therefore, the right to seek
default/statutory bail only remains until the charge sheet is filed,
and is extinguished as soon as the charge sheet is filed, once the
statutory period as laid down under Section 167 (2) Cr.P.C. has
25. This Court answers the second issue as that if a bail
application under Section 167(2) Cr.P.C., seeking default/statutory
bail, if filed after filing of the charge-sheet, even if the charge-
sheet has been filed after expiry of the prescribed statutory time
limit, under the said provision of law, would not in fact be
maintainable.
26. Therefore, what is of utmost significance is whether the
application seeking default/statutory bail under Section 167(2)
Cr.P.C. has been made before filing of the charge-sheet, or not;
and the said right of the accused becomes an indefeasible right
only in the circumstance that the prescribed total period has
expired and the charge-sheet has not been filed. Other
surrounding circumstances are however, immaterial solely with
regard to such right, in such attending circumstances.
27. This Court hereby observes that the right to seek
default/statutory bail accrues to the accused in the nature of an
indefeasible right, only if such remedy by preferring an
appropriate application has been availed of within the prescribed
window from the date of expiry of total period of detention of
accused person(s) under Section 167(2) Cr.P.C., until filing of the
charge-sheet.
28. This Court, in light of the praefatus observations, finds that
the impugned order passed by the learned Court below does not
suffer from any legal infirmity so as to warrant any interference by
this Court.
29. Consequently, the present petition is dismissed. All pending
applications stand disposed of.
|
The Rajasthan High Court has recently observed that the right to seek default/statutory bail accrues to the accused in the nature of an indefeasible right, only if such remedy by preferring an appropriate application has been availed of within the prescribed window from the date of expiry of total period of detention of accused person(s) under Section 167(2) Cr.P.C., until filing of...
The Rajasthan High Court has recently observed that the right to seek default/statutory bail accrues to the accused in the nature of an indefeasible right, only if such remedy by preferring an appropriate application has been availed of within the prescribed window from the date of expiry of total period of detention of accused person(s) under Section 167(2) Cr.P.C., until filing of the charge-sheet.
The Court also held that if an additional or new offence(s) are found to be made out by the investigating authority, against an accused, then the computation of the period, as laid down under Section 167 Cr.P.C. would be done afresh.
Dr. Justice Pushpendra Singh Bhati observed,
"This Court hereby observes that the right to seek default/statutory bail accrues to the accused in the nature of an indefeasible right, only if such remedy by preferring an appropriate application has been availed of within the prescribed window from the date of expiry of total period of detention of accused person(s) under Section 167(2) Cr.P.C., until filing of the charge-sheet."
Essentially, an F.I.R was lodged on 16.10.2021 u/s 363 I.P.C. by one Chhoturam stating that his brother's daughter, Sumitra was abducted by the accused–petitioner along with other persons; whereafter, the petitioner was taken into custody on 19.10.2021, and remained as such for one day, until ordered to be released on 20.10.2021.
However, subsequently the petitioner was re-arrested and taken into custody. The accused-petitioner alleged that the total period of the petitioner's custody was beyond the mandated time period, as prescribed under Section 167(2) Cr.P.C.
The accused-petitioner alleged that he is also entitled to statutory / default bail, and that his right to seek the same has accrued on the ground that the period, as laid down in Section 167 (2) Cr.P.C., of 90 days, was exceeded and he was kept in custody for a total period of 92 days. Through this criminal revision petition, he prayed for the court's order to be released on bail.
Notably, the court considered the following two issues and answered them accordingly:
1. Whether the Court below, in computing the total period of detention of accused person as under Section 167 (2) Cr.P.C. , during which the accused – applicant was in custody, was right to exclude the period during which he was previously remained in custody, and subsequently released on bail i.e. before which the additional offences against him were found to be made out by the investigating officer.
The court observed that the period of 90 days, as laid down under Section 167 (2) Cr.P.C., is stated to be counted when the investigation for the fresh offence(s) is started and not from the date of lodging of the FIR.
It was opined that the trial court, after appreciating relevant judicial precedents, has rightly found that the total period of detention of the accused-petitioner has to begin from 27.10.2021, until when the charge sheet was filed on 24.01.2022. And therefore, the charge sheet was rightly filed within the stipulated 90 days' time period as laid down under Section 167 (2) (a) (I) Cr.P.C, added the court.
Further, the bench also opined,
"A bare perusal of Section 167 (2) Cr.P.C. reveals that under sub-section (2) (a) (I) of 167 Cr.P.C., the period of 90 days would be computed when the investigation, with regard to that particular offence(s), began. The offence under Section 363 I.P.C. would attract the application of Section 167 sub-section (2) (a) (ii) of Cr.P.C. since the maximum / upper limit period of imprisonment under the said section would be 60 days. Regardless of that fact, this Court finds that if an additional or new offence(s) are found to be made out by the investigating authority, against an accused, then the computation of the period, as laid down under Section 167 Cr.P.C. would be done afresh."
2. Whether a bail application, under Section 167 (2) Cr.P.C., seeking default/statutory bail, filed after the charge sheet, although the charge sheet has been filed after the expiry of the prescribed statutory time limit under Section 167 (2) Cr.P.C., would be maintainable.
The court noted that the utmost significance is whether the application seeking default/statutory bail under Section 167(2) Cr.P.C. has been made before filing of the charge-sheet, or not; and the said right of the accused becomes an indefeasible right only in the circumstance that the prescribed total period has expired and the charge-sheet has not been filed. Other surrounding circumstances are however, immaterial solely with regard to such right, in such attending circumstances, added the court.
It was answered by the court that if a bail application under Section 167(2) Cr.P.C., seeking default/statutory bail, if filed after filing of the charge-sheet, even if the charge- sheet has been filed after expiry of the prescribed statutory time limit, under the said provision of law, would not in fact be maintainable.
Reliance was placed by the court in Sanjay Dutt v. State through C.B.I. Bombay [(1994) 5 SCC 410], wherein it was held that if the accused had made an application seeking bail under Section 167(2) Cr.P.C. after the expiry of the total period laid down in the said provision, but before the chargesheet is filed, the pendency of such an application would not affect his right to seek such bail, even in case of filing of the charge sheet prior to adjudication on such application.
The counsels for the petitioner include Adv. S.S. Ladrecha with Adv. Devendra Singh, while the counsel for the respondent includes PP Gaurav Singh.
Case Title: Akheraj v. State of Rajasthan
|
New India Assurance Company Ltd., through Regional Manager,
1. Smt. Kanchan Devi W/o Shri Chathurbhuj Ji Soni, aged 60
2. Smt. Chaman Soni W/o Shri Pawan Kumar, aged 32 years,
3. Kumar Saloni D/o Shri Pawan Kumar, aged 12 years,
4. Master Ankit S/o Shri Pawan Kumar, aged 10 years
5. Smt. Sarla W/o Shri Gajraj Ji Soni, aged 40 years
6. Mst. Prakash S/o Late Shri Gajraj Ji Soni, aged 16 years
No.3 and 4 are minor through their Natural Guardian Mother
Smt. Chaman Soni and No.6 is minor through Natural
All resident of Kesariya Jewelers, Outside Nehru Gate, Geeta
7. Raghuvir Singh S/o Kashmir Singh, Resident of C/o
Vrandawan Mathura (U.P.) (Driver of the vehicle Truck No.HR-
38H-5545) (Since deceased)
8. Jaswant Singh S/o Shri Havela Singh Bajwa, Resident of 210
Durgapuri Vistar Delhi (Owner of the Vehicle Truck No.HR-
9. Hari Prakash Sahani S/o Shri Gour Ram Sahani, Resident of
of Vehicle Indica Car No.RJ-21CA-0783)
of 116/11, Brahmpur Medta City, Nagaur Legal
Representative of Hari Prakash Sahani.
11. Rahul Sahani S/o Hari Prakash Sahani, Resident of 116/11,
Brahmpur Medta City, Nagaur Legal Representative of Hari
Prakash Sahani (Owner of Vehicle Indica Car No.RJ-21CA-
(2 of 6) [CMA-2423/2012]
For Appellant(s) : Mr. Praveen Jain through VC
For Respondent(s) : Mr. Rishipal Agarwal through VC
Mr. Jai Prakash Gupta through VC
1. Appellant-New India Assurance Company Ltd. is the insurer
of the Truck bearing Registration No.HR-38H-5545. On
24.12.2007, the truck was dashed by a rash and negligent trolley
which resulted in death of driver Raghuvir Singh. For the accident
aforesaid Sojat City PS Case No.389/2007 was registered on
25.12.2007. The police came and with the help of JCB Crane
dragged the damaged truck to the soiled portion of the road and
the truck was left there under seizure of the police. Copy of the
FIR is Ex-8 on this record.
2. On 26.12.2007, driver Pawan Kumar alongwith others was
driving the car bearing Registration No.RJ-21CA-0783. The FIR of
Sojat City PS Case No.390/2007 registered on 27.12.2007 would
reveal that Pawan Kumar was rash and negligent while driving the
car on 26.12.2007 and dashed with the said truck from behind the
truck, resulting in death of the Pawan Kumar and injury to others.
After investigation of Sojat City PS Case No.390/2007, the police
found that the accident was due to rash and negligent driving of
Pawan Kumar. The car was insured with Respondent No.12-
(3 of 6) [CMA-2423/2012]
Oriental Insurance Company Ltd. The legal representatives of
victim Pawan Kumar brought Claim Case No.364 of 2011
(78/2008) before the Motor Accident Claims Tribunal (Upper
3. The Tribunal found that the said accident was due to
negligent parking of the truck without any flash light for guidance
of other moving vehicles or any other sign showing stationed
truck. In the result, the Tribunal fixed 50% liability on the truck
and 50% contributory negligence on the deceased.
4. The appellant is aggrieved by the impugned judgment dated
01.05.2012 passed in Claim Case No.78 of 2008/364 of 2011.
5. Mr. Praveen Jain, learned counsel for the appellant contends
that without verifying the actual state of affairs, the driver and
owner alongwith insurer of the truck were impleaded as party in
the claim petition alongwith owner and insurer of the car. Without
verifying the fact that driver Raghuvir Singh had already died two
days back in the accident of the said truck. Learned counsel
contends that the Tribunal wrongly fixed 50% negligence of
already damaged truck rather the accident was due to 100%
negligence of car driver. Moreover, the truck was under the seizure
of the police, hence it could not have been held that the parking of
the truck was result of negligence of driver or owner of the
vehicle. The owner of the truck Jaswant Singh was examined as
NAW-2 in the claim case and he is specific that the crane brought
by the police had dragged and shifted the truck to the soilly road
by the side of the main pitch road. The police was not made party
deliberately otherwise the entire matter would have surface before
(4 of 6) [CMA-2423/2012]
6. While admitting this appeal for hearing, this Court issued
notice to Respondent No.12 only on the question whether the
appellant-Assurance Company can be held liable to pay the
compensation or it is the respondent No.12-Oriental Insurance
Company, which should bear the liability of payment of
7. Mr. Rishipal Agarwal, learned counsel for the respondent
No.12 contends that the Tribunal has relied on the judgment of
Raj Rani and Ors. Vs. Oriental Insurance Company Ltd.,
reported in 2009 (13) SCC 654 corresponding to 2008 ACJ
(SC) 1617 wherein the fact of the case was that the truck was
parked on the middle of the road without any flash light and the
vehicle which caused death was coming from behind the truck and
dashed against the truck. Learned counsel further relies on the
judgment of Hon’ble Karnataka High Court in Misc. First
Vs. Pushpa & Ors., in support of his contention on the point of
contributory negligence. Reliance has been placed on National
Insurance Company Ltd. Vs. Mrs. Sunita Yadav and Ors.,
reported in 2007 (1) TAC 992 (Raj.).
8. In my view, none of the aforesaid cases are helping
respondent No.12 in the facts and circumstances of this case. In
Raj Rani (supra) case the driver of the truck had parked the
truck on the mid of the road without any flash light or indicator
again the driver of the lorry had parked half on the Tar road (pitch
road). Likewise, in National Insurance Company Ltd. (supra)
the truck was parked by the driver without any reflectors, blinkers
(5 of 6) [CMA-2423/2012]
or indicators. Against the said truck a jeep with a moderate speed
had collided.
In the present case, admittedly the parking of the truck was
not due to negligence of the driver or owner of the truck. The
driver had already died in the accident two days ago. The
damaged truck was dragged with the help of JCB crane to the side
of the road on the soiled portion. These facts are not disputed.
The claimant of this case unaware of the aforesaid factual position
or by suppressing the aforesaid factual positions impleaded the
dead driver Raguvir Singh as party to the claim petition. Moreover,
the truck was in the seizure of the police and no police official was
impleaded as party to the claim petition. The police investigation
report available on the record reveals that the accident was result
of sole negligence of the driver of the car, who was rash and
negligent at the time of accident. The informant of the case is eye-
witness of the occurrence.
9. Therefore, in my view, the learned Tribunal on wrong in
appreciation of the facts as well as the law while holding that 50%
of the contribution to the accident was of the truck. There is no
evidence that the truck was parked at the public place by its driver
or the owner rather definite evidence is that the police crane had
dragged the truck to the soiled portion of the road leaving the
pitch road completely free for movement and the car had dashed
going on the soiled portion of the road without any perceivable
obstruction from any other vehicle. Therefore, the accident was
result of the rash and negligence driving of the car.
10. Accordingly, the impugned judgment is set aside to the
extent that the Tribunal has fixed the liability to pay compensation
on respondent Nos.2 and 3 i.e. owner and insurer of the truck. In
(6 of 6) [CMA-2423/2012]
fact, the liability was against the owner and insurer of car during
use whereof the accident took place. Therefore, the exoneration of
respondent Nos.4, 5, 6 and 7 by the Tribunal is also not
sustainable in law. Accordingly, the same is set aside and it is
ordered that the entire liability to pay compensation goes against
the owner and insurer of the car. Since the car was insured with
respondent No.12 it is liable to pay entire compensation payable
to the claimants. If there would be any violation of the terms and
conditions of policy i.e. the driver of the car being without any
license to drive the vehicle or without any proper license,
respondent No.12 would be competent to recover from the owner
of the car in a separately instituted proceeding after making
payment to the claimant.
11. It has been informed that the appellant has already paid
Rs.5,10,500/- to the claimant. Therefore, the appellant would be
entitled to be reimbursed by respondent No.12. Respondent No.12
shall pay the aforesaid amount to the appellant alongwith interest
paid by the appellant to the claimant on the aforesaid amount.
Exercise be completed within three months to avoid 12% interest
till recovery.
12. Accordingly, this appeal stands allowed to the aforesaid
extent.
|
Reversing the findings of a Motor Accident Tribunal which had fixed 50% contributory negligence on the truck driver against which the claimants' car had dashed, the Rajasthan High Court has directed the car insurance company to reimburse the payments made by insurer of the truck.Justice Birendra Kumar held that the Tribunal had passed the impugned order without taking note of the fact that...
Reversing the findings of a Motor Accident Tribunal which had fixed 50% contributory negligence on the truck driver against which the claimants' car had dashed, the Rajasthan High Court has directed the car insurance company to reimburse the payments made by insurer of the truck.
Justice Birendra Kumar held that the Tribunal had passed the impugned order without taking note of the fact that the driver of the truck had died two days before the accident and the claimants' car had dashed into the truck which was in the seizure of the police and was parked in soiled portion of the road leaving the pitch road completely free for movement.
The bench thus ordered,
"Accordingly, the impugned judgment is set aside to the extent that the Tribunal has fixed the liability to pay compensation on respondent Nos.2 and 3 i.e. owner and insurer of the truck. In fact, the liability was against the owner and insurer of car during use whereof the accident took place...Accordingly, the same is set aside and it is ordered that the entire liability to pay compensation goes against the owner and insurer of the car. Since the car was insured with respondent No.12 it is liable to pay entire compensation payable to the claimants...It has been informed that the appellant (truck insurer) has already paid Rs.5,10,500/- to the claimant. Therefore, the appellant would be entitled to be reimbursed by respondent No.12."
Facts
Appellant-New India Assurance Company Ltd. was the insurer of the Truck. On 24.12.2007, the truck was dashed by a rash and negligent trolley which resulted in the death of driver Raghuvir Singh. The police with the help of JCB Crane dragged the damaged truck to the soiled portion of the road and the truck was left there under seizure of the police.
On 26.12.2007, driver Pawan Kumar along with others was driving the car, insured with Respondent No.12- Oriental Insurance Company Ltd. The FIR registered on 27.12.2007 revealed that Pawan Kumar was rash and negligent while driving the car on 26.12.2007 and dashed with the said truck from behind, resulting in death of Pawan Kumar and injury to others. After investigation, the police found that the accident was due to rash and negligent driving of Pawan Kumar. The legal representatives of victim Pawan Kumar brought Claim before MACT, Beawar.
The Tribunal found that the said accident was due to negligent parking of the truck without any flash light for guidance of other moving vehicles or any other sign showing stationed truck. In the result, the Tribunal fixed 50% liability on the truck and 50% contributory negligence on the deceased. The appellant is aggrieved by the impugned judgment dated 01.05.2012 passed in Claim Case No.78 of 2008/364 of 2011.
The court, while admitting this appeal., issued notice to Respondent No.12 only on the question whether the appellant-Assurance Company can be held liable to pay the compensation or it is the respondent No.12-Oriental Insurance Company, which should bear the liability of payment of compensation.
Findings
The court observed that there is no evidence that the truck was parked at the public place by its driver or the owner rather definite evidence is that the police crane had dragged the truck to the soiled portion of the road leaving the pitch road completely free for movement and the car had dashed going on the soiled portion of the road without any perceivable obstruction from any other vehicle. The court ruled that the accident was the result of the rash and negligent driving of the car.
The court opined that since the car was insured with respondent No.12 it is liable to pay entire compensation payable to the claimants. The court added that if there would be any violation of the terms and conditions of policy i.e. the driver of the car being without any license to drive the vehicle or without any proper license, respondent No.12 would be competent to recover from the owner of the car in a separately instituted proceeding after making payment to the claimant.
On finding that the appellant has already paid Rs.5,10,500/- to the claimant, the court observed that the appellant would be entitled to be reimbursed by respondent No.12. The court added respondent No.12 shall pay the aforesaid amount to the appellant alongwith interest paid by the appellant to the claimant on the aforesaid amount and that this exercise should be completed within three months to avoid 12% interest till recovery.
The court also opined,
"In the present case, admittedly the parking of the truck was not due to negligence of the driver or owner of the truck. The driver had already died in the accident two days ago. The damaged truck was dragged with the help of JCB crane to the side of the road on the soiled portion. These facts are not disputed. The claimant of this case unaware of the aforesaid factual position or by suppressing the aforesaid factual positions impleaded the dead driver Raguvir Singh as party to the claim petition."
Further, it was observed by the court that the truck was in the seizure of the police and no police official was impleaded as party to the claim petition. The police investigation report available on the record reveals that the accident was the result of sole negligence of the driver of the car, who was rash and negligent at the time of accident, added the court. The court found that the informant of the case is an eyewitness of the occurrence.
The court also rejected the judgments relied by the counsel for respondent no.12 and observed that In Raj Rani v. Oriental Insurance Company Ltd. [2009 (13) SCC 654], the driver of the truck had parked the truck on the mid of the road without any flash light or indicator working. In Shriram General Insurance Co. Ltd. v. Pushpa, again the driver of the lorry had parked half on the Tar road (pitch road). Likewise, in National Insurance Company Ltd. v. Mrs. Sunita Yadav [2007 (1) TAC 992 (Raj.)], the truck was parked by the driver without any reflectors, blinkers or indicators. Against the said truck a jeep with a moderate speed had collided.
The counsel for the appellants contended that the Tribunal wrongly fixed 50% negligence of the already damaged truck rather the accident was due to 100% negligence of the car driver. Moreover, the truck was under the seizure of the police, hence it could not have been held that the parking of the truck was the result of negligence of the driver or owner of the vehicle.
He further submitted that the owner of the truck Jaswant Singh was examined as NAW-2 in the claim case and he is specific that the crane brought by the police had dragged and shifted the truck to the soilly road by the side of the main pitch road. The police was not made party deliberately otherwise the entire matter would have surface before the Tribunal, he argued.
Adv. Praveen Jain appeared for the appellants, while Adv. Rishipal Agarwal and Adv. Jai Prakash Gupta appeared for the respondents.
Case Title: New India Assurance Company Ltd., through Regional Manager v. Smt. Kanchan Devi
|
1. This Review Petition was adjourned yesterday at Mr
Krishnan’s request. He appears for the Review Petitioners (“the
Agarwals”). I have heard him at some length this afternoon and,
briefly, Dr Saraf for the contesting Respondent (“Tata Financial”).
Priyanka Communications (India) Pvt Ltd & Ors v Tata Capital Financial Services Ltd
2. In my view, this Review Petition is not only thoroughly
misconceived but is also deliberately mischievous, and quite possibly
vexatious. I believe it is precisely the kind of proceeding that the
Commercial Courts Act 2015 (“the CCA”) deprecates. It has taken
an unconscionable amount of the court’s time. The CCA uses the
expressions “frivolous claim”, “vexatious proceeding” and “wasting
the time of the Court”. This Review Petition is all three; I will return
to this part of the CCA towards the end of this judgment. Apropos
the last of these, the phrasing in the CCA is not “taking the time of
the Court” but “wasting the time of the Court”. The difference is
significant: every litigant is entitled to the Court’s time. After all, the
purpose of a court is to make time for a litigant. But no litigant is
entitled to squander or waste the time of the court. That is as unfair
to a court as it is to other litigants waiting in line. In the Commercial
Division, governed by the provisions of the CCA, wasting the time of
the Court invites an order of costs. I have, therefore, not only
dismissed the Review Petition, but I have done so with costs.
3. The law on the power of review is now far too well-settled to
warrant any larger discussion. There are two authorities that Dr Saraf
cites that seem to me apposite to this case; I will come to those later.
But it is not contentious that the power of substantive review — as
opposed to procedural or “purely procedural” review — is, first, one
that must be conferred by law,1 and, second, the exercise of the power
of review is narrowly constrained by the law that confers it. This law
1 See Patel Narshi Thakershi & Ors v Shri Pradyuman Singhi Arjunsinghji,
(1971) 3 SCC 844; Patel Chunibhai Dajibha etc v Narayanrao Khanderao Jambekar
& Anr, AIR 1965 SC 1457; Harbhajan Singh v Karam Singh & Ors, AIR 1966 SC
641; RR Verma & Ors v Union of India & Ors, (1980) 3 SCC 402;
Priyanka Communications (India) Pvt Ltd & Ors v Tata Capital Financial Services Ltd
is not new either. In fact, it is very old. In the 1891 decision in Drew v
Willis,2 Lord Esher, M.R., said that no court or authority has the
power to set aside an order properly made, unless it (viz., the power)
is given by statute.
4. In 1914, in Hession v Jones,3 Bankes J held that no court has the
power to review an order deliberately made after argument and to
entertain a fresh argument upon it with a view to ultimately
confirming or reversing it. The decision in Hession — a case about a
contract for sale of eggs — is oddly prescient to the facts of this case,
as the extract that follows shows.
BANKES J. This is an application on behalf of the plaintiff,
the respondent on an appeal to this Court, to restore the
appeal to the list. Such an application may be made either (1.)
to restore a case which has merely been struck out and has
never been heard and decided because the appellant did not
attend; or (2.) to restore a case in which the appellant has
appeared and argued his appeal in the absence of the
respondent and the Court has heard the appeal and come to
a decision. In the first case the application is to restore an
appeal which has not been heard; in the second case the
application is to set aside a decision after a hearing which in
the respondent's view is not satisfactory because he was not
present. This is an application of the second class, to set
aside an order of this Court made by Ridley J. and myself
after hearing. The appellant was present and produced a
copy of the county court judge's notes and was ready to
proceed with his appeal. The respondent was not
represented. The appellant was the defendant in the county
2 (1891) 1 QB 450. Cited in Harbhajan Singh, supra.
3 (1914) 2 KB 421. Also cited with approval in Harbhajan Singh, supra.
Priyanka Communications (India) Pvt Ltd & Ors v Tata Capital Financial Services Ltd
court. An action had been brought against him for the price
of certain cases of eggs ordered by him for delivery at a
named station. The plaintiff delivered a larger quantity than
that ordered. The defendant had refused to take delivery on
the grounds (1.) that there was unreasonable delay in
forwarding and (2.) that the eggs were not in proper
condition. When he was sued in the county court he took the
further point under s. 30, sub-s. 2, of the Sale of Goods Act,
1893, that the plaintiff could not succeed because he had
tendered a different quantity from that ordered. The
defendant claimed the right to reject on that ground also.
The point was taken before the county court judge. The
plaintiff contended that the defendant could not rely upon it,
because he had not given it as his reason when he first
rejected the goods. The county court judge decided the
point in favour of the plaintiff. In the opinion of Ridley J.
and myself he was wrong in so deciding. Before deciding
the appeal we considered whether there was any evidence
that the defendant had waived or abandoned or in any
way estopped himself from relying on this defence, and
came to the conclusion that he had not done so.
Accordingly we made an order allowing the appeal; we
set aside the judgment of the county court, and ordered
judgment to be entered for the defendant in that Court.
That order was duly drawn up by the officer of this Court; a
copy of the order was obtained by the solicitor for the
appellant, the defendant below, and he was thereupon in a
position to have the record in the county court altered by
striking out the judgment for the plaintiff and entering
judgment for the defendant. I do not know whether that was
done, but there is no doubt that the order of this Court was
drawn up and perfected before any step was taken to set it
aside. It is clear therefore that this is an application to
review an order deliberately made after argument and to
entertain a fresh argument upon it with a view to
Priyanka Communications (India) Pvt Ltd & Ors v Tata Capital Financial Services Ltd
ultimately confirming or reversing it. Has the Court
jurisdiction to do this? I may say at once that if we have I
should not exercise it in the present case, because any
application of this sort must be supported by an affidavit of
merits. I have read the affidavit in this application and can
find nothing which would lead me to alter the opinion I
formed on the hearing of the appeal. But it is necessary to
consider the jurisdiction of the Court. The application is
supported by an affidavit in which the solicitor for the
plaintiff says that by an unfortunate mistake he did not
instruct any one to appear for the respondent on the
appeal. … Our jurisdiction therefore is in part a statutory
jurisdiction regulated by the Rules of the Supreme Court,
1883, and partly an inherent jurisdiction which we
possess as judges of the High Court. The question is
whether either by the rules or by reason of our inherent
jurisdiction we have the power to reinstate this appeal.
Then as to the inherent jurisdiction of the Court. Before the
Judicature Acts the Courts of common law had no
jurisdiction whatever to set aside an order which had been
made. The Court of Chancery did exercise a certain limited
power in this direction. All Courts would have power to
make a necessary correction if the order as drawn up did not
express the intention of the Court; the Court of Chancery,
however, went somewhat further than that, and would in a
proper case recall any decree or order before it was passed
and entered; but after it had been drawn up and perfected no
Court or judge had any power to interfere with it. That is
clear from the judgment of Thesiger L.J. in the case of In re
5. As we shall presently see, this Review Petition is in the same
class as Hession. It seeks a reinstatement of the original Arbitration
Priyanka Communications (India) Pvt Ltd & Ors v Tata Capital Financial Services Ltd
Petition on grounds never argued, never taken, and some never
pleaded; and it does so after the original Arbitration Petition was fully
argued, and then decided by pronouncement in open court. The
order under review was then ‘perfected’, that is to say its transcript
was corrected, signed and uploaded, the very next day or perhaps
shortly after pronouncement.
6. A power of review is conferred on our civil courts by Section
114 and Order 47 of the Code of Civil Procedure, 1908 (“CPC”). The
relevant part of those provisions say:
114. Review.—Subject as aforesaid, any person considering
(a) by a decree or order from which an appeal is
allowed by this Code, but from which no appeal has
(b) by a decree or order from which no appeal is
(c) by a decision on a reference from a Court of
Small Causes, may apply for a review of judgment to
the Court which passed the decree or made the order,
and the Court may make such order thereon as it
thinks fit.
1. Application for review of judgment.—(1) Any
person considering himself aggrieved—
appeal is allowed, but from which no appeal
Priyanka Communications (India) Pvt Ltd & Ors v Tata Capital Financial Services Ltd
Court of Small Causes, and who, from the
discovery of new and important matter or
evidence which, after the exercise of due
diligence was not within his knowledge or
could not be produced by him at the time when
the decree was passed or order made, or on
account of some mistake or error apparent on
the face of the record of for any other sufficient
reason, desires to obtain a review of the decree
passed or order made against him, may apply
for a review of judgment to the Court which
passed the decree or made the order.
(2) A party who is not appealing from a decree or
order may apply for a review of judgment
notwithstanding the pendency of an appeal by some
other party except where the ground of such appeal is
common to the applicant and the appellant, or when,
being respondent, he can present to the Appellate
Court the case on which he applies for the review.
Explanation.—The fact that the decision on a
question of law on which the judgment of the Court is
based has been reversed or modified by the
subsequent decision of a superior Court in any other
case, shall not be a ground for the review of such
4. Application where rejected.—(1) Where it appear
to the Court that there is not sufficient ground for a review,
it shall reject the application.
Priyanka Communications (India) Pvt Ltd & Ors v Tata Capital Financial Services Ltd
(2) Application where granted.—Where the
Court is of opinion that the application for review
should be granted, it shall grant the same:
(a) no such application shall be granted
without previous notice to the opposite party,
support of the decree or order, a review of
(b) no such application shall be granted on
the ground of discovery of new matter or
evidence which the applicant alleges was not
within his knowledge, or could not be adduced
by him when the decree or order was passed or
made, without strict proof of such allegation.
7. Order of rejection not appealable. Objections to
order granting application.—(1) An order of the Court
rejecting the application shall not be appealable; but an order
granting an application may be objected to at once by an
appeal from the order granting the application or in an appeal
from the decree or order finally passed or made in the suit.
7. The Agarwals were respondents to the original Section 9
Arbitration Petition. Tata Finance was the Petitioner. I made an order
on 12th March 2021. I held against the Agarwals. I said they had,
Priyanka Communications (India) Pvt Ltd & Ors v Tata Capital Financial Services Ltd
prima facie, no defence at all — they were indubitably borrowers from
Tata Finance under finance agreements, and, not having repaid the
loan on the terms of the agreement, were in contractual default. I
directed an asset disclosure and granted an injunction. This is the
order the Agarwals seek to review.
8. But before they filed this Review Petition, the Agarwals filed
an appeal. By the time of the Appeals, the Agarwals had changed
lawyers. They had now engaged M/s Pan India Legal Services LLP.
Counsel instructed by Pan India Legal Services LLP in the appeal
court sought to contend that I had failed to consider the Agarwals’
written submissions (filed at a much earlier date, on 15th December
2020) in my order of 12th March 2021. The Appeal Court disposed
of the appeal by granting the Agarwals liberty to file a review.
9. It is actually correct that in my order of 12th March 2021 I did
not consider the Agarwals’ written submissions. I do not do so
because nobody asked me to. Nobody even told me they had been
filed. Nobody briefed for the Agarwals made any arguments on the
written submissions. Before me, Mr SK Sen appeared for the
Agarwals, not only on that date but on several previous occasions. He
did not once reference these written submissions. Now, apart from
his acuity and legal acumen, Mr Sen has built himself a reputation in
this court for a preternaturally calm doggedness, and for being as
undaunted as he is dauntless. I imagine that had he wanted to show
me the written submissions and found any argument on them, no
human force could have stopped him and I would have had no choice
in the matter. But for whatever reason he did not once refer to them.
Priyanka Communications (India) Pvt Ltd & Ors v Tata Capital Financial Services Ltd
10. I dictated the order in open Court. Mr Sen was present
throughout. At no point did he say that I had not dealt with a point he
canvassed, or that I had not taken into account the written
submissions — simply because he never argued the latter. No one for
the Agarwals applied for a clarification or speaking to the minutes in
the days that followed. The very first time that this ground — of the
written submissions not being considered — was raised was by these
new lawyers in appeal.
11. But this is not the frame of the Review Petition at all. Its
grounds for review are, to put it mildly, astonishing.
12. Ground A says that this Court has no jurisdiction because the
dispute between the parties is within the jurisdiction of the Debts
Recovery Tribunal (“DRT”). This was never argued before me.
More importantly, it is no part of the Affidavit in Reply. It is also not
a part of these much-vaunted written submissions. Mr Krishnan
insists this is a question of law that can be taken at any stage. He is
wrong. In this case, it is at the very least a mixed question of fact and
law. His case is that Tata Finance is covered by a Notification dated
5th August 2016 of the Ministry of Finance and hence cannot
arbitrate its disputes. It must follow the special procedure under the
Recovery of Debts Due to Banks and Financial Institutions Act, 1993
(“the DRT Act”). No copy of any such notification of 2016
regarding Tata Finance is annexed. Dr Saraf submits that the correct
notification in question as regards Tata Capital is of 24th February
2020, not 5th August 2016. It is not under DRT Act but is under the
Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 (“the SARFAESI
Priyanka Communications (India) Pvt Ltd & Ors v Tata Capital Financial Services Ltd
Act”). Mr Krishnan’s reliance on the decision of the Supreme Court
in Vidya Drolia & Ors v Durga Trading Corporation4 is misplaced:
paragraph 58 says claims covered by the DRT Act are non-arbitrable.
In any case, I do not see how this furnishes a ground of review.
Nobody ever argued it.
13. Ground B is that no leave was obtained under Order II Rule 2
of the Code of Civil Procedure 1908. This is on the basis that the
present Petition was lodged on 24th September 2020 and two days
earlier Tata Capital filed Commercial Summary Suit on 22nd
September 2020. Mr Krishnan insists that the subject matter of the
two actions is the same. Dr Saraf disagrees. He says that the
Summary Suit was on distinct cause of action on a transaction that
did not have an arbitration clause. But I am not going into the merits
of that at all. I cannot. Once again this ground was not argued by Mr
Sen before me. It turns on a question of fact: that the cause of action
in both proceedings is the same. Mr Krishnan insisting that the two
are identical does not make it so. It ought to have been shown. There
is a reference in paragraph 5(a) and 5(b) of the written submissions to
the summary suit. But this only says that the Tata Capital is
approaching multiple forums and it would be impermissible for the
arbitration proceedings and summary suit to be adjudicated
simultaneously. That is not the same as showing that the two causes
of action and underlying transactions are the same. Mr Sen made no
submission based on this. There is also no such averment in the
Affidavit in Reply.
Priyanka Communications (India) Pvt Ltd & Ors v Tata Capital Financial Services Ltd
14. Ground C says that there is no period of repayment in the
sanction letter. I have dealt with this. I rejected it. I said that the
submission amounted to saying that the Agarwals got a gift from Tata
Finance. It is no ground of review and Mr Krishnan does not press it.
15. Ground D is on the question of insufficient stamping. Again,
this was not argued. The ground incorrectly references the decision
of the Supreme Court in Garware Wall Ropes Ltd V Coastal Marine
Construction5 and happily ignores the law thereafter, especially the
decision of the Supreme Court in NN Global Mercantile Pvt Ltd v Indo
Uniqie Flame Ltd & Ors.6 That decision of 11th January 2021. This
Review Petition was filed on 22nd July 2021. The omission could not
have been accidental and prima facie seems designed to mislead on
16. Ground E is clearly on merits, saying that there was no
justification for an order under Section 9. It seeks to distinguish
authorities I noted in the order under review. That is impermissible
in our limited review jurisdiction. Mr Krishnan does not press it.
17. A more fundamental point is this. The entire Review Petition
does not explain nor does Mr Krishnan show how this Petition falls
within the narrow limits of Section 114 or Order 47 of the Code of
Civil Procedure 1908. It more or less assumes that a party’s right to
seek a review of a final order after arguments is, if not quite a
fundamental right, something very close to it. The submission seems
Priyanka Communications (India) Pvt Ltd & Ors v Tata Capital Financial Services Ltd
to be that anyone can file a Review Petition on any ground whatsoever
even if it is not pleaded or argued. It is perfectly all right, the
suggestion continues, to assail an order in appeal or in review on
grounds never taken or submitted. A mere change of advocates is
enough. Their latter-day epiphany on all matters — of fact and law
both — is enough ground for a review.
18. More disturbing is the implicit suggestion that Counsel’s
arguments are almost entirely worthless; and, by necessary extension,
that Counsel are entirely redundant. If the attorney has filed
something on record, Counsel must argue it, no matter how trifling
or irrelevant. Further, it is then the job of the Court to engage in some
sort of forensic archaeological excavation of these often mountainous
records, and go through them document by document and page by
page, to ferret out some sort of case in favour of a Review Petitioner,
even if counsel have never argued every single line of what is pleaded.
Whether or not Mr Krishnan agrees with my interpretation of his
arguments and the implication for Counsel is totally irrelevant. For
that is indeed the implication of the submission he makes when he
says that my order does not take into account some written
submissions tucked away at the back of a large file and to which my
attention was never drawn and on which Counsel then appearing
made no submissions at all.
19. We have Counsel for a reason. We expect of them certain skills.
Foremost among these is their ability to sanguinely render assistance
to the Court. This purpose is fundamental. It is not achieved by
saying that Counsel’s arguments are irrelevant. It is not achieved by
saying that counsel overlooked or were not properly briefed or that
Priyanka Communications (India) Pvt Ltd & Ors v Tata Capital Financial Services Ltd
counsel ought to have but did not take some point. Counsel often
realize, as well they should, that not all arguments taken in affidavits
or even in written submissions are worth pursuing. They confine their
arguments to a few points. They know that the rest do not matter and
will not convince. If Counsel has not urged a point, the fact that there
were written submissions is immaterial if those written submissions
were never in fact argued.
20. Counsel’s failure to argue written submissions is not a ground
of review or, I dare say, even appeal. It is no ground to assail any order
of any judge of any court. If the written submissions were to be relied
on, that ought to have been done during arguments, or, at any rate,
while judgment was being dictated in open court or at best shortly
after the judgment or order was uploaded. These never-argued
written submissions cannot be taken in hindsight.
21. Sometimes, after arguments close, we permit written
submissions. That requires an order of the Court, and the Court then
always references the written submissions it called for. There is no
such order calling for the written submissions. The original
Arbitration Petition was before me and no other court since the time
it was instituted. It was listed on 13th October 2020, 2nd November
11th February 2021, 12th February 2021 and 12th March 2021 (this
being the order under review). The orders of 7th December 2020 and
16th December 2020 are important for today’s purposes. The order
of 7th December 2020 only stood over the matter by consent to 16th
December 2020. It did not permit any written submissions to be filed.
Neither did any previous order. The written submissions are of 15th
Priyanka Communications (India) Pvt Ltd & Ors v Tata Capital Financial Services Ltd
December 2020, one day before the next listing date. Even on 16th
December 2020, and in no order thereafter, did anyone mention these
written submissions. I do not pretend to understand how, without a
specific order of the court, the Agarwals could have entered these
written submissions on record. There is no inward stamp of
December 2020 showing receipt. I do not know how the registry
permitted this filing. It seems to have been done by email — but still
without an order permitting the filing — for the printed document
has only the scanned signature of Mr Vishwas Deo. Therefore, I do
not know, and cannot say, whether as a matter of record, i.e., with a
court order, these written submissions were filed. It is possible that
they were simply printed out when we moved from online / email
filings to physical filings. There is no praecipe asking the written
submissions to be taken on record.
22. In fact, I do not know whether Mr Sen in March 2021 even
knew of these written submissions or had himself seen them. He
certainly did not argue on them.
23. This is the situation of which Mr Krishnan seeks to take
advantage. I do not see how it cannot be termed undue advantage.
There is no order permitting those written submissions. There is no
inward entry from the registry. There is no physically signed set of
written submissions. There is only a print out and it has somehow
been tucked at the back of the file. That is the level of unfairness with
which I am sought to be confronted.
Priyanka Communications (India) Pvt Ltd & Ors v Tata Capital Financial Services Ltd
24. That arguing counsel often confine themselves to a single point
or a few points is, indeed, exemplified by this Review Petition itself.
For the only point Mr Krishnan has canvassed is the one about the
summary suit. He has not pressed anything else. I have heard him in
open Court after giving him a date to prepare as he requested
yesterday, and I have dictated this order in open Court.
25. Dr Saraf says this point about the summary suit being based on
the same transaction and the same cause of action is not taken even
in the Review Petition. Mr Krishnan’s reply is to point to Ground
“d) That this Hon’ble Court failed to appreciate that the
alleged sanction letter is distinct from the consortium loan as
the alleged sanction letter is a part of the alleged Loan
Agreement. Furthermore, the alleged account statement and
alleged recall notice are common in respect of both alleged
loans and there are no bifurcation of amount under the
alleged facilities. The alleged One Time Temporary Limit
Finance and/or Working Capital Demand Loan facility are
one and the same and are not distinct to each other. Had it
been that One Time Temporary Limit Finance and Working
Capital Demand Loan facility would be a separate facility,
However, as there is no separate Agreement/Separate
Priyanka Communications (India) Pvt Ltd & Ors v Tata Capital Financial Services Ltd
Demand Letter, it is presumed that the One Time
Temporary Limit Finance/ ad hoc is part of the alleged
original loan agreement and extension of original sanction
letter.”
26. But this is no answer at all to Dr Saraf’s objection. And this is
how it goes. Mr Krishnan makes a submission. When Dr Saraf points
out this is not a ground taken in the Review Petition, Mr Krishnan
shows me something totally irrelevant and on another aspect (which
is on merits and not a ground for review). Mr Krishnan’s submission
is that no matter what the controlling law is, I must strain every nerve
to find for his clients, even if I have to do this in some circuitous,
inferential way. It is clearly not possible for him to argue that the
Agarwals were unaware of the summary suit — they were, and most
certainly so by the time of my order of 12th March 2021. But it was
never argued and it is, as I noted earlier, a question of fact.
27. A very similar case came up before the Hon’ble Mr Justice SC
Gupte in Mohinder Rijhwani & Ors v Hiranandani Construction Pvt
Ltd.7 Several months after he delivered a reasoned judgment, an
application for review was made before him suggesting that during
the course of hearing he indicated his mind in a certain way and that
counsel had according trimmed and tailored arguments and not
pressed the point or not made it fully. Gupte J said:
Mar Basselios Catholicos v Most Rev. Mar Poulose Athanasius
((1955) 1 SCR 520 : AIR 1954 SC 526)] the controversy
concerned a statement made by the judges of the Full Bench
Priyanka Communications (India) Pvt Ltd & Ors v Tata Capital Financial Services Ltd
of the High Court of Travancore (per majority of two judges)
that the defendants’ advocate had conceded that the
plaintiffs had not left the Church and they were as good
members of the Church as anybody else. It was the case of
the defendants (the review petitioners) that this statement
was said to be inaccurate, incomplete and misleading. The
argument before the Supreme Court was that the majority
decision proceeded on a misconception as to the concession
said to have been made by the defendants’ advocate. This
misconception was sought to be proved through affidavit and
other documentary evidence. That was objected to by the
Attorney General. The learned Attorney General’s
argument was that the affidavit and document could not be
said to be part of the “record” within the meaning of Order
47 Rule 1. The Supreme Court did not countenance the
objection. According to the court, there was no reason to
construe the word “record” in any restricted sense. The
court observed that when the error complained of was that
the court assumed that a concession was made when none
had in fact been made or that the court misconceived the
terms of that concession or the scope or extent of it, it would
not generally appear on record but would have to be brought
before the court by way of an affidavit and this could only be
done by way of review. Once again, these facts are clearly
distinguishable. In our case, the court did not proceed on
any concession made by Counsel; the order under review
mentions none. If it was Counsel, who was under a
misconception as to the position of the court and
therefore, chose not to argue a point, that by itself is no
ground for review and cannot be brought in by way of an
affidavit. In any event, the affidavit in support of review
petition does not refer to any such misconception, as noted
above. As for what transpired in court, there is, as noticed
above, a serious contest between the parties and there is no
Priyanka Communications (India) Pvt Ltd & Ors v Tata Capital Financial Services Ltd
question of taking a view one way or the other based on a
unilateral statement of the review petitioners.
14. The Review Petitioners’ case here is neither
supported by law or authority of court. If anything, it
would set a bizarre precedent, if accepted, that it is open
to seek review of a judgment or order, if the court had
indicated its mind one way in court whilst reserving the
judgment and the judgment came the other way or that
Counsel appearing before the court was under an
impression that the case would be decided one way and in
reality, it was decided otherwise.
28. Even if that decision can fairly be set to turn on the facts of this
case, the general principle that it propounds is not only salutary but
is essential. If this practice is to be encouraged — that a party faced
with an adverse order first files an appeal on a ground never taken or
argued before the court of first instance — then that injects an
impermissible level of uncertainty into the whole decision-making
process. A Review Petition that follows a disposal of that appeal with
liberty to the appellants to file a Review Petition, again on grounds
never taken, argued or even pleaded only aggravates the matter.
29. To take a step back from all of this, it is necessary, I think, to
see the Review Petitioners for what they really are. There is no
dispute that they are borrowers from Tata Capital. These are all
attempts to avoid the inevitable. They must come a point when a
Court must say enough is enough and they cannot succeed in taking
this further.
Priyanka Communications (India) Pvt Ltd & Ors v Tata Capital Financial Services Ltd
30. As to the contours of a Review Petition, I need only refer to the
Division Bench Judgment of this Court in Radhakrishna CHSL & Anr
v State of Maharashtra & Ors.8 The decision quoted at length from the
decision of the Supreme Court in Kamlesh Verma V Mayawati & Ors.9
original matter. The power of review cannot
be confused with appellate power which
enables a superior court to correct all errors
committed by a subordinate court.
15. Review proceedings are not by way of
an appeal and have to be strictly confined to
the scope and ambit of Order XLVII, Rule 1
disagreement with the view of the judgment
cannot be the ground for invoking the same.
following grounds of review are maintainable
(A) When the review will be maintainable:-
exercise of due diligence, was not within
knowledge of the petitioner or could not
Priyanka Communications (India) Pvt Ltd & Ors v Tata Capital Financial Services Ltd
(iii) Any other sufficient reason.
The words “any other sufficient reason” has
been interpreted in Chhajju Ram v. Neki, AIR
1922 PC 112 and approved by this Court in
Moran Mar Basselios Catholicos v. Most Rev.
520: (AIR 1954 SC 526), to mean “a reason
sufficient on grounds at least analogous to
principles have been reiterated in Union of
India v. Sandur Manganese & Iron Ores Ltd. &
concluded adjudications.
inconsequential import.
the case.
unless the material error, manifest on
soundness or results in miscarriage of
justice.
Priyanka Communications (India) Pvt Ltd & Ors v Tata Capital Financial Services Ltd
error.
ground for review.
searched.
(viii) The appreciation of evidence on
record is fully within the domain of the
appellate court, it cannot be permitted
to be advanced in the review petition.
been negatived.”
9. The above principles are culled out from the
judgment of the Hon’ble Supreme Court itself. That is a law
of the land. They are salutary in character and by virtue of
Article 141 of the Constitution of India bind all the judicial
authorities. We cannot override the law declared by the
Hon’ble Supreme Court of India as that binds all courts
within the territory of India. The review petitioners before
us are aware of the same. Yet, they have, in the garb of the
order of the Hon’ble Supreme Court passed in this case,
preferred this review petition not through the same
advocates/counsel, who argued the matter when the
order under review was passed by this court. They were
aware that respondent No. 6 had challenged the acquisition
of the land/property in issue unsuccessfully. The property
stood acquired and the owner has lost his right, title and
interest therein. He/it could not have propped-up the
tenants/occupants of the building/structure standing on the
Priyanka Communications (India) Pvt Ltd & Ors v Tata Capital Financial Services Ltd
land to question the acquisition. Therefore, as a strategy, the
alleged dilapidated and unsafe condition of the
structure/building was put in issue in the original writ
petition purely to gain sympathy from this court. The very
purpose of the writ petition was to take another chance or, to
put it differently, initiate a second round to wriggle out of the
acquisition of the property. Therefore, advisedly, the
counsel arguing the matter at the initial stage and when
the order under review was passed, did not base his
arguments on the pleadings, which we have reproduced
above. When no argument was raised based on such
pleadings and advisedly and purposely, though the
pleadings were on record, now, through different
advocates on record and distinct set of counsel, the
petitioners are seeking to get over a binding order of this
court. This is a third round and in the garb of a review, a
re-hearing of the case is sought. That is why we have
deprecated the practice and routinely adopted in this
court of litigants filing review petitions not through the
same advocates and counsel, who were engaged when the
orders under review are passed. A different set of
advocates/counsel is engaged and the same contentions and
submissions, which were either not raised, given up or
negatived earlier, are sought to be re-introduced by taking
advantage of the liberty granted by the Hon’ble Supreme
Court of India. Should we, therefore, encourage this
trend, which destroys long-standing, healthy practices
and traditions of this court. The professionals and
litigants may not feel anything about the rich heritage
and healthy practices and traditions of this court, but
surely we cannot abandon or ignore them. More so, when
they are deep rooted and have stood the test of time.”
Priyanka Communications (India) Pvt Ltd & Ors v Tata Capital Financial Services Ltd
31. A litigant has a right to be heard by a court. He has a right to
engage a lawyer, who will be heard on that party’s behalf. But no party
has the right to keep changing lawyers and then having the new
lawyers attempt to argue points not raised, given up or rejected.
Certainly no lawyer is entitled to say to a court, “I am entitled to urge
anything and everything, even points my client’s previous lawyer did
not argue, or may have given up or which you negatived. I am entitled
to do all this because I am now newly engaged and therefore it matters
not a whit what my client’s previous lawyer, no matter how illustrious
or brilliant, said or did.” There is no such right.
32. No matter how long and tortuous litigation in India may be, it
must have some finality. If what Mr Krishnan seems to believe is
legitimate — that appeals can be filed on grounds not argued and that
review petitions can be similarly pressed — then there is no end in
sight at all. This is anathema to our jurisprudence.
33. The Review Petition is entirely bereft of merit. Allowing it
would set a dangerous precedent. The Review Petition is dismissed.
34. As to costs, this being in the Commercial Division, the
amendment to CPC Section 35 effected by the CCA will operate:
costs must ordinarily follow the event. If not, reasons must be
recorded. Dr Saraf presses for an order of costs. I can see no reason
not to make that order.
35. In response, it is now suggested by Mr Krishnan for the Review
Petitioner was “not his choice” but “was suggested by the Division
Priyanka Communications (India) Pvt Ltd & Ors v Tata Capital Financial Services Ltd
Bench”. Those are his exact words. The argument is quite possibly
the most repellent I have heard in a long time. Mr Krishnan leaves me
with no choice. I will now reproduce the whole order of 20th June
2021 of the Appeal Court. It is at Exhibit ‘D’ at pages 103-104. This
“By the above Appeal, the Appellants have impugned the
Order dated 12th March 2021 passed by the Learned Single
Judge whilst disposing off the Arbitration Petition (L) NO.
3628 of 2020 filed by the Respondent No. 1 seeking reliefs by
way of interim protection under Section 9 of the Arbitration
and Conciliation Act, 1996. The learned Advocate for the
Appellants has made several submissions before this Court.
However, it appears that though the said submissions
were set out in the written submissions filed by the
Appellants, much prior to the commencement of
arguments, the same were not advanced before the
learned Single Judge at the time of making oral
submissions. In view thereof, we grant liberty to the
Appellants to file a Review Petition seeking review of the
impugned Order dated 12th March, 2021 before the
Learned Single Judge. Since the execution proceedings are
fixed on 26th July 2021, the Review Petition may be moved
before the Learned Single Judge on or before 23rd July 2021.
Needless to add that the Review Petition shall be heard
strictly on merits. The Appeal is accordingly disposed off.
The above Interim Application also stands disposed off.”
36. The emphasized words above show clearly that the Division
Bench merely granted liberty to the Agarwals to file a Review
Petition. The Division Bench did not ‘direct’ the Review Petitioner
to do so. It did not ‘suggest’ that. It did not order it. The reason to
Priyanka Communications (India) Pvt Ltd & Ors v Tata Capital Financial Services Ltd
grant this liberty, and it was not an idle indulgence, is set out in the
previous part where the Court noted that the Counsel briefed by Mr
Krishnan made several submissions that were based on the written
submissions but were not advanced during the arguments either in
my order of 12th March 2021.
37. It lies ill in Mr Krishnan’s mouth to say that this Petition was
filed because “the Division Bench directed” or “suggested” it.
Nothing could be further from the truth. This is a deliberate and
entirely unacceptable distortion of an unambiguous and clear order
of a Division Bench of this Court. Frankly, to my mind, it is probably
deserving of censure, but I will let that pass. But this does not mean
that this serves as a reason not to award costs.
38. I should also reiterate that the filing of the written submissions
is in more than murky — and certainly ambiguous — circumstances
as I have set out earlier: with no order of a court permitting it, no
stamp of receipt, no praecipe, and a mere print-out of some digital
document. That only makes matters worse.
39. In my view, it is now time to send a clear message that this kind
of conduct will not be tolerated. It will be dealt with severely. The
factors that the CCA says must be taken into account while ordering
costs are in Section 35(3) of the amended CPC:
(3) In making an order for the payment of costs, the
Court shall have regard to the following circumstances,
Priyanka Communications (India) Pvt Ltd & Ors v Tata Capital Financial Services Ltd
(b) whether a party has succeeded on part of its case,
even if that party has not been wholly successful;
(c) whether the party had made a frivolous counterclaim
leading to delay in the disposal of the case;
(d) whether any reasonable offer to settle is made by a
party and unreasonably refused by the other party; and
(e) whether the party had made a frivolous claim and
instituted a vexatious proceeding wasting the time of the
40. The Review Petitioners’ conduct is deplorable. The Review
Petition is certainly frivolous and vexatious and it is an unforgivable
waste of judicial time — which, not incidentally, has been to the time-
disadvantage of other litigants as well.
41. Consequently, the dismissal of the Review Petition will be
accompanied by an order of costs in the amount of Rs. 5 lakhs. These
costs are to be paid by the Review Petitioners directly to the
Respondent within two weeks from the day this order is uploaded.
42. This order will be digitally signed by the Private Secretary of
this Court. All concerned will act on production of a digitally signed
copy of this order.
|
In an important order, the Bombay High Court has observed that written submissions in a dispute become immaterial if the litigant's counsel doesn't rely on them before the court of the first instance.The Bench went on to add that those submissions cannot subsequently be used to challenge any order. "Counsel's failure to argue written submissions is not a ground of review or, I dare...
In an important order, the Bombay High Court has observed that written submissions in a dispute become immaterial if the litigant's counsel doesn't rely on them before the court of the first instance.
The Bench went on to add that those submissions cannot subsequently be used to challenge any order.
"Counsel's failure to argue written submissions is not a ground of review or, I dare say, even appeal. It is no ground to assail any order of any judge of any court. If the written submissions were to be relied on, that ought to have been done during arguments, or, at any rate, while judgment was being dictated in open court or at best shortly after the judgment or order was uploaded. These never-argued written submissions cannot be taken in hindsight."
Justice GS Patel remarked that allowing parties to take grounds in review pleas or in appeals that weren't argued initially injects an impermissible level of uncertainty into the whole decision-making process.
"These are all attempts to avoid the inevitable…They [There] must come a point when a Court must say enough is enough and they cannot succeed in taking this further," court said.
It was further found that there existed no order permitting those written submissions.
"There is no inward entry from the registry. There is no physically signed set of written submissions. There is only a print out and it has somehow been tucked at the back of the file. That is the level of unfairness with which I am sought to be confronted", the Court remarked.
With this view, the Court went on to dismiss the review petition after imposing heavy cost of Rs.5 lakh on the petitioners.
The Review Petitioners' conduct is deplorable. The Review Petition is certainly frivolous and vexatious and it is an unforgivable waste of judicial time — which, not incidentally, has been to the time disadvantage of other litigants as well.
It was further observed that "the purpose of a court is to make time for a litigant. But no litigant is entitled to squander or waste the time of the court. That is as unfair to a court as it is to other litigants waiting in line."
Justice Patel went on to add that "A litigant has a right to be heard by a court. He has a right to engage a lawyer, who will be heard on that party's behalf. But no party has the right to keep changing lawyers and then having the new lawyers attempt to argue points not raised, given up or rejected…There is no such right."
The Case:
Mahesh and Manish Agarwal, who were respondents in the original Section 9 Arbitration plea filed by Tata Finance approached the High Court in the instant review petition. Justice Patel had passed an order against the Agarwals on March 12, 2021, directing an asset disclosure and granted an injunction. He had then observed the petitioners had, prima facie, no defence at all — they were indubitably borrowers from Tata Finance under finance agreements, and, not having repaid the loan on the terms of the agreement, were in contractual default.
Before the filing of the Review Petition, the Agarwals had filed an appeal. The Counsel instructed by Pan India Legal Services LLP in the appeal court contended that Justice Patel had failed to consider the Agarwals' written submissions in his order passed in March. The Appeal Court had disposed of the appeal by granting the Agarwals liberty to file a review.
The Agarwals then approached the High Court for a review.
In the current review plea, Counsel appearing for the Agarwal's again relied on written submissions that were not brought to the Court's notice previously.
Senior Advocate Birendra Saraf appeared for Tata Finance and argued that grounds never taken before were being taken in the present writ petition.
Court's findings:
The High Court agreed that the order of 12th March 2021 did not consider the Agarwals' written submissions.
"I do not do so because nobody asked me to. Nobody even told me they had been filed. Nobody briefed for the Agarwals made any arguments on the written submissions", the Court remarked.
Moreover, the grounds as mentioned in the review petition were found to be 'astonishing'. The Court noted that these grounds were not a part of the 'much-vaunted' written submissions or were rejected by the it.
Court's views on the Important Role of a Counsel
Justice Patel made important observations on the vital role played by counsel in a proceeding. He said that a judge can't be expected to go on a "forensic archaeological excavation" of often "mountainous records" to ferret out a case in the petitioner's favour.
"We have counsel for a reason. We expect of them certain skills. Foremost among these is their ability to sanguinely render assistance to the Court. This purpose is fundamental. It is not achieved by saying that counsel's arguments are irrelevant. It is not achieved by saying that counsel overlooked or was not properly briefed or that counsel ought to have but did not take some point."
Counsel often realize, as well they should, that not all arguments taken in affidavits or even in written submissions are worth pursuing, the Court wen on to note.
They confine their arguments to a few points. They know that the rest do not matter and will not convince. If Counsel has not urged a point, the fact that there were written submissions is immaterial if those written submissions were never in fact argued.
With these observations and while terming the review petition to be 'deliberately mischievous', the High Court dismissed the same.
"In my view, this Review Petition is not only thoroughly misconceived but is also deliberately mischievous, and quite possibly vexatious. I believe it is precisely the kind of proceeding that the Commercial Courts Act 2015 ("the CCA") deprecates. It has taken an unconscionable amount of the court's time", the Court said.
Case Title - [Priyanka Communications (India) Pvt Ltd vs Tata Capital Financial Services Ltd.]
Appearances:
Petitioners – Advocates Premlal Krishnan with Dinesh Bhate, i/b Pan India Legal Services LLP
Respondents – Senior Advocate Dr Birendra Saraf along with advocates Rohan Savant, Sachin Chandarana & Chandrajit Das, i/b M/s Manilal Kher Ambalal & Co
|
1. The present transfer petition has been filed by the petitioner-wife for
transfer of CS No.6 of 2020 titled as “Sh. Ravindra Bhushan Joshi v.
Smt. Sarita Joshi” pending before the Principal Judge, Family Court,
South West District, Dwarka Courts to the Principal Judge, Family
Court, East District of Karkardooma Court.
2. It has been submitted that in the Karkardooma Court, the petition
under Section 12 of Domestic Violence Act, 2005 and petition under
Section 125 Cr. PC bearing No. 2712/2017 are pending.
3. It has been submitted that the petitioner is 68 years of age. It has
further been submitted that since two litigations are also pending in
the Karkardooma Court. The present suit may also be transferred to
TR.P.(C.) 33/2021 Page 1 of 3
the Karkardooma Court.
4. Learned counsel for the respondent has vehemently opposed the same.
It has been submitted that the respondent –husband is 72 years of age.
Learned counsel for the respondent submits that even in the affidavit,
wrong address has been given. Learned counsel also submits that the
petitioner-wife has been enjoying all the benefits and the present
application has been moved just to harass the respondent.
5. The exercise of the jurisdiction while transferring the petition
particularly in the matrimonial disputes, has to be undertaken in such
a manner that there should not be any inconvenience caused to either
of the parties. It is a settled practice that in such matters, the
convenience of the wife has to be seen more. The request of the
petitioner-wife can be declined only if there are weighty reasons
behind the same.
6. I do not see any reason in the present case to decline the request of the
petitioner-wife for transfer of the case. Hence, the CS No.6 of 2020
titled as Sh. Ravindra Bhushan Joshi v. Smt. Sarita Joshi pending
before the Principal Judge, Family Court, South West District,
Dwarka Courts is withdrawn and assigned to the Principal Judge,
Family Court, East District of Karkardooma Court.
7. The transferee Court is directed to send complete record to the
transferor Court.
8. Parties are directed to appear before the Principal District & Sessions
Judge, East District of Karkardooma Court on 27th October, 2022.
9. Learned Trial Court may consider the dates in such a manner that all
the petitions are taken up on a single day.
TR.P.(C.) 33/2021 Page 2 of 3
10.Copy of this order be sent to the Principal District & Sessions Judge,
South West District, Dwarka Courts as well as the Principal District &
Sessions Judge, East District of Karkardooma Court.
11. In view of the submission made, the present petition stands disposed
|
The Delhi High Court has observed that the convenience of the wife has to be seen more while transferring a petition to a different court in matrimonial disputes.
Justice Dinesh Kumar Sharma added that the transfer jurisdiction has to be exercised in such a manner that there should not be any inconvenience caused to either of the parties.
The court was dealing with a plea moved by 68 year old wife seeking transfer of the matrimonial case pending before Family Court's Principal Judge of Dwarka Courts (South West District) to Family Court's Principal Judge of Karkardooma Court (East District).
The transfer plea was moved on the ground that two petitions filed under Section 12 of Domestic Violence Act and Section 125 of Code of Criminal Procedure seeking maintenance were already pending in the Karkardooma Court. Hence, it was prayed that the suit pending before Dwarka Court also be transferred to the other court.
However, the plea was opposed by the 72 year old husband arguing that the wife had been enjoying all the benefits and that the transfer plea was moved only to harass him. He also argued that even in the affidavit before court, wrong address was given by the wife.
The court was of the view that the wife's request to transfer the case can be declined only if there are weighty reasons behind the same, adding that it found no reason to decline the said request.
Allowing the wife's plea, the court ordered "The transferee Court is directed to send complete record to the transferor Court. Parties are directed to appear before the Principal District & Sessions Judge, East District of Karkardooma Court on 27th October, 2022."
Case Title: SMT. SARITA JOSHI v. RAVINDRA BHUSHAN JOSHI
|
Dr. Birendra Saraf, Senior Counsel a/w Anand Mohan, Nishit Dhruva,
Khushboo Chhajed, Yash Dhruva & Shahbaz Malbari i/b. MDP &
Partners, for the Applicant/Plaintiff.
Mr. Hiren Kamod a/w Ankoosh Mehta, Sarah Navodia, Aman Parekh
i/b. Cyril Amarchand Mangaldas for Defendant Nos. 1 to 3.
Mr. Rashmin Khandekar a/w Megha Chandra-Bagchi & Ajay Basutkar
i/b. Ajay Basutkar for Defendant No.4.
Mr. Aditya Khanna, Representative of the Plaintiff is present.
Mr. Ashok Thakeria, Defendant No.2 and Partner of Defendant No.1
is present.
1. In the above Interim Application, an order was passed on 20 th
October, 2022, wherein this Court opined that at the ad-interim stage,
no relief could be granted in relation to the film “Thank God” and the
Defendants were given time to file their affidavit in reply. The matter
was thereafter placed on board on 22nd November, 2022 for other ad-
interim reliefs.
2. When the above matter came up on 22 nd November, 2022,
Dr. Saraf, the learned Senior Counsel fairly stated that in light of the
order dated 20th October, 2022 and the subsequent events, the Plaintiff
was not pressing for ad-interim reliefs in terms of prayer clauses (i) to
(iv) of the Interim Application. He submitted that the Interim
Application would only survive for ad-interim reliefs in terms of prayer
clause (v). This is how the matter was placed before me today.
3. After the matter was argued for some time, both parties
agreed that the above Suit itself can be disposed of in the following
21 ial 33390-22..doc
i. There shall be a decree against Defendant Nos. 1 to 3 to jointly
and severally pay to the Plaintiff a sum of Rs. 4.50 crores together
with interest @ 10% p.a. plus GST under Clause 11 of the Second
Addendum dated 21st October, 2020 (Exhibit-D to the plaint).
ii. As and by way of a concession, the Plaintiff agrees to accept a sum
of Rs. 3.75 crores in full and final settlement of the above decree
in the following instalments:
Rs. 60,00,000/- On or before 3rd December, 2022
Rs. 31,66,666/- On or before 15th January, 2023
Rs. 31,66,666/- On or before 1st March, 2023
Rs. 31,66,666/- On or before 15th April, 2023
Rs. 31,66,666/- On or before 30th May, 2023
Rs. 31,66,666/- On or before 14th July, 2023
Rs. 31,66,666/- On or before 28th August, 2023
Rs. 31,25,000/- On or before 28th September, 2023
Rs. 31,25,000/- On or before 28th October, 2023
Rs. 31,25,000/- On or before 28th November, 2023
Rs. 31,25,000/- On or before 30th December, 2023
iii. The liability to pay GST, if any, shall be borne by Defendant Nos.
1 to 3.
iv. In the event Defendant Nos. 1 to 3 commit any default in making
payment of a single instalment, then the entire decretal amount of
Rs. 4.50 crores together with interest @ 10% p.a. shall become
forthwith due and payable (as set out in paragraph 3(i) above)
and the Plaintiff shall be entitled to execute this decree for the
entire sum, after giving credit for the amounts already received.
Since time to make payment has been granted by consent, the
same shall not be varied without the consent of both parties.
21 ial 33390-22..doc
4. The above Suit is decreed in the aforesaid terms. No order
as to costs. Drawing and sealing of the decree is dispensed with.
5. This order will be digitally signed by the Private
Secretary/Personal Assistant of this Court. All concerned will act on
production by fax or email of a digitally signed copy of this order.
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Less than six weeks after the Bombay High Court refused ad-interim reliefs to plaintiffs Azure Entertainment in a commercial suit worth Rs. 4.50 crores against release of the film "Thank God," the parties entered into consent terms and settled the matter for Rs. 3.75 crore.
Justice BP Colabawalla decreed the suit against defendant Nos. 1 to 3 (Maruti and its partners) to jointly and severally pay to the plaintiff a sum of Rs. 4.50 crores together with interest @ 10% pa plus GST under Clause 11 of the Second Addendum dated 21st October, 2020.
However, the court recorded the settlement amount of Rs 3.75 crores and said that if there was even a single default in payment, then the entire decretal amount of Rs. 4.50 crores together with interest would become forthwith due and payable.
In the suit filed before the Bombay High Court, Azure claimed that it had acquired the remake rights of the Danish film 'Sorte Kugler' (What Goes Around) on the basis of which the Hindi film 'Thank God' was produced under a co-production arrangement between Azure and Maruti International pursuant to which Maruti had committed to pay Rs.4.50 Crores to Azure prior to the release of the domestic theatrical prints of the film and had also committed to Azure that the domestic prints of the film will not be released until an NOC is given by Azure.
The plaintiff alleged that defendant Maruti International defaulted on certain payments in spite of receiving the entire budget of the film from the studio 'T-Series.'
In its order dated 30th November 2022 passed by Justice B.P. Colabawalla, pursuant to the mutual consent of the parties involved, a sum of Rs.3.75 crores was agreed to be paid by Maruti International as a concession against the decreed amount of Rs.4.50 crores with a clear direction that in the event the payment of any single instalment was defaulted upon by Maruti International, Azure would be entitled to execute the decree for the entire amount of Rs.4.50 crores along with interest and GST.
Senior Advocate Dr.Birendra Saraf alongwith Advocates Anand Mohan,, Khushbu Chajjed, and Shahbaz Malbari briefed by MDP & Partners, appeared for Azure.
Case Title: Azure Entertainment Pvt. Ltd. Vs. Maruti International & Ors.
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This petition is filed by the petitioner/accused under
Section 482 of Cr.P.C. for quashing the criminal
proceedings in FIR in Crime No.6/2015 registered by the
Davangere Lokayukta police for the offence punishable
under Sections 13 (1)(e) read with 13(2) of the Prevention
of Corruption Act, 1988 and Sections 120B and 420 of IPC
pending on the file of Principal District and Sessions Judge,
2. Heard the arguments of learned counsel for the
petitioner and special counsel for respondent
No.1/Lokayukta and learned counsel for respondent No.2.
3. The case of the prosecution is that on the
complaint filed by respondent no.2 one Gurupadaiah the
police have registered FIR on 30.11.2015 in crime
No.6/2015 and it was alleged that the respondent No.2
claiming himself to be president of Brashtachara Virodi
Vedike filed a private complaint under Section 200 of
Cr.P.C before the special Court for Lokayukta on 28.4.2015
alleging that the petitioner had amassed wealth
disproportionate to his known source of income while he
was a Member of Legislature Assembly during 2004 to
2008, again from 2008 to 2013 and also from 25.12.2009
to 23.12.2013 when he was Cabinet Minister of
Government of Karnataka. In the year 2004 when he had
filed nomination paper for contesting the MLA election at
Honnalli, he has declared his assets at Rs.26,07,319/-and
thereafter in the year 2008 election he had declared his
assets as Rs.73,97,828 and in the year 2013 he has
declared assets as Rs.4,95,32,608/-. It was alleged that
there was raise of income and assets during his tenure as
Minister in the State Government of Karnataka, he along
with his brother has established Educational Institution by
name Bapuji Educational Institution at Shimoga and the
brothers had also amassed huge wealth when the
petitioner was MLA and there after became the Minister.
The petitioner by using office and by abusing his official
position accumulated huge movable and immobile
properties, which is disproportionate to his income. Based
upon the private complaint, the same was referred to
Lokayukta police under section 156 (3) of Cr.P.C, in turn
the police investigated the matter and submitted the
report. The police in Crime No.5/2015 against the
petitioner and his brothers for the offence punishable
under Sections 13 (1)(d) and (e) of the Prevention of
Corruption Act, 1988 and Section 120B and 420 of IPC. It
is further alleged that the petitioner and his brother have
challenged FIR in Crime No.5/2015 by filing
Crl.P.No.3431/2015 before the High Court. The High Court
vide its order dated 04.09.2015 had allowed the petition
and quashed the FIR and consequential proceedings and
liberty was reserved for complainant to pursue his
complaint in accordance with procedure laid down by
Hon'ble Supreme Court in the case of Priyanaka
Srivastava and Anr. Vs. State of Uttar Pradesh and
other reported in (2015) 6 SCC 287 and all contentions
of both parties were left open.
4. Subsequently the petitioner had approached the
Superintendent Police of Lokayuktha and filed the
complaint and the same was registered by the Lokayuktha
police in Crime No.6/2015 for the same alleged offence
punishable under section 13 (1)(d) and (e) of the
Prevention of Corruption Act, 1988 and section 120B and
420 of IPC and registered the FIR which is under
5. The learned counsel for the petitioner has
contended based upon the same set of facts two FIR's
have been registered which is clear case of abuse of
process of law and the respondent have filed false
complaint against the petitioner and when the High Court
set aside the FIR, the question of filing complaint to
Lokayukta Police does not arise as the High Court had set
aside the FIR for non following the guidelines of
Priyanaka Srivastava stated supra. Therefore, the
respondent required to file private complaint, but he has
filed a direct complaint to the police which is registered as
FIR. Absolutely, there is no material against the
petitioner. The respondent No.2 is Janatha Dal political
party, an opponent to the petitioner for prosecuting the
case against the petitioner. The sanction under section
197 of Cr.P.C is mandatory which is not obtained by the
prosecution, therefore the learned counsel for petitioner
prayed for quashing the FIR.
6. Per contra learned special counsel for
Lokayukta has contended the police already investigated
the matter and final report was ready, they were waiting
for receiving the sanction from the State for filing the
charge sheet and further contended that the previous
complaint has been quashed by the High Court on the
ground for not following the guidelines issued by the
Hon'ble Supreme Court in Priyanaka Srivastav's case as
he did not approach the police and higher official of police
under section 154 (1) & 154 (3) of Cr.P.C. Therefore, in
order to comply the provisions of 154 (1) of Cr.P.C, he
approached the police and filed the complaint, but the
Lokayukta police received the complaint and registered the
FIR. Therefore, there is no need for approaching the
higher officers under section 154 (3) of Cr.P.C and filing
private complaint under section 200 Cr.P.C does not
arises. There is no flaw in the procedure, it is not second
FIR, based upon the same set of facts as in the first FIR
the complaint has been quashed by the High Court and
liberty was granted. Hence prayed for dismissing the
7. The learned counsel for respondent No.2 also
submitted the same and contended, he has acted in
accordance with law and therefore, prayed for dismissing
the petition.
8. Having heard the arguments and perused the
records. On perusal of the records, it is an admitted fact,
the respondent No.2 filed a private complaint against this
petitioner which was numbered as PCR No.2/2015 on the
file of Principal District and Sessions Court and Special
Court, Davangere and learned Sessions Judge referred the
complaint to the SP Lokayukta under section 156 (3) of
Cr.P.C. Inturn the Lokayukta police registered the FIR in
Crime No.5/2015 on 2.5.2015 for the offences punishable
under Sections 13 (1)(d) and (e) of the Prevention of
Corruption Act, 1988 and Section 120B and 420 of IPC. It
is also an admitted fact, that both petitioners approached
the High Court by filing the criminal petition under section
482 of Cr.P.C and the coordinate bench of this court has
quashed the FIR, in Crl.P.No.3431/2015 dated 4.9.2015 as
there was no compliance of Priyanaka Srivastav's case
for non filing the affidavit and approaching the police under
section 154 of Cr.P.C. and liberty given to the complainant
to pursue the complaint in accordance with procedure laid
down by the Hon'ble Supreme Court.
9. In view of the judgment of the co-ordinate bench
of the High Court for having quashed the FIR and
complaint for non-compliance of Priyanaka Srivastav's
case as he had not approached the police under section
154 of Cr.P.C. Therefore, in order to comply the guidelines
of the Hon'ble Supreme Court, the petitioner filed First
information before Lokayukta police and immediately
Lokayukta police Davangere received the complaint and
registered the FIR in Crime No.6/2015 which is under
10. The learned counsel for the petitioner has
contended, it is a multiple FIRs on the same complaint and
he has relied upon the judgment of Hon'ble Supreme Court
1132 and prayed for quashing the FIR. Therefore, prior to
discussing the case on merits, it is worth to mention the
guidelines issued by Hon'ble Supreme Court in Priyanaka
Srivastava's case at para.29, 30, and 31…. which is as
"29. At this stage it is seemly to state that
power under Section 156(3) warrants application of
judicial mind. A court of law is involved. It is not
the police taking steps at the stage of Section 154
of the Code. A litigant at his own whim cannot
invoke the authority of the Magistrate. A principled
and really grieved citizen with clean hands must
have free access to invoke the said power. It
protects the citizens but when pervert litigations
takes this route to harass their fellow citizens,
efforts are to be made to scuttle and curb the
same.
30. In our considered opinion, a stage has
come in this country where Section 156(3) CrPC
applications are to be supported by an affidavit
duly sworn by the applicant who seeks the
invocation of the jurisdiction of the Magistrate. That
apart, in an appropriate case, the learned
Magistrate would be well advised to verify the truth
and also can verify the veracity of the allegations.
This affidavit can make the applicant more
responsible. We are compelled to say so as such
kind of applications are being filed in a routine
manner without taking any responsibility
whatsoever only to harass certain persons. That
apart, it becomes more disturbing and alarming
when one tries to pick up people who are passing
orders under a statutory provision which can be
challenged under the framework of the said Act or
under Article 226 of the Constitution of India. But it
cannot be done to take undue advantage in a
criminal court as if somebody is determined to
settle the scores.
31. We have already indicated that there
has to be prior applications under Sections 154(1)
and 154(3) while filing a petition under Section
156(3). Both the aspects should be clearly spelt
out in the application and necessary documents to
that effect shall be filed. The warrant for giving a
direction that an application under Section 156(3)
be supported by an affidavit is so that the person
making the application should be conscious and
also endeavour to see that no false affidavit is
made. It is because once an affidavit is found to be
false, he will be liable for prosecution in accordance
with law. This will deter him to casually invoke the
authority of the Magistrate under Section 156(3).
That apart, we have already stated that the
veracity of the same can also be verified by the
learned Magistrate, regard being had to the nature
of allegations of the case. We are compelled to say
so as a number of cases pertaining to fiscal sphere,
matrimonial dispute/family disputes, commercial
offences, medical negligence cases, corruption
cases and the cases where there is abnormal
delay/laches in initiating criminal prosecution, as
are illustrated in Lalita Kumari [(2014) 2 SCC 1 :
(2014) 1 SCC (Cri) 524] are being filed. That apart,
the learned Magistrate would also be aware of the
delay in lodging of the FIR.”
On bare reading of the principle laid down by the
Hon'ble Supreme Court at Para 31, it has held prior to
invoking the provisions under section 156 (3) of Cr.P.C for
referring the complaint to the police upon filing the private
complaint, the complainant shall first approach the police
authority under section 154 (1) Cr.P.C and if the police
have not taken any action, then as per section 154(3) of
Cr.P.C, the complaint shall be sent to the higher
authorities like Superintendent of Police etc., Even then
the police not acted upon on the complaint of the
complainant, then the complainant shall approach the
Magistrate by filing private complaint under Section 200 of
Cr.P.C and shall get it referred to the police under section
156 (3) of Cr.P.C.
11. Admittedly, the complainant without
approaching the Lokayukta police at Davangere in order to
file First Information as required under section 154 (1) of
Cr.P.C or 154 (3) of Cr.P.C before the Superintendent of
Police, but he has directly filed private complaint before
the District Court and got it referred to the police for
investigation under section 156 (3) of Cr.P.C. Therefore,
the co-ordinate bench of High Court has rightly quashed
the FIR and the complaint. The liberty was granted to
follow the procedures as per the Priyanaka Srivastava's
case. As per the judgment of the co-ordinate bench of
this court in Crl.P.No.3431/2015 dated 4.9.2015.
Therefore, the respondent/complainant in order to invoke
section 154(1) of Cr.P.C., he went to the Lokayukta police
Davangere, for filing the complaint under section 154 (1)
of Cr.P.C but the Lokayukta police received the complaint
and acted upon, by registering the FIR in Crime No.6/2015
for the above said offences as on 30.11.2015. Therefore,
once the case filed under section 154(1) of Cr.P.C has
been complied by the complainant and the police also
registered the FIR. The question of the complainant going
to the Superintendent of Lokayukta under section 154(3)
of Cr.P.C does not arise. Moreover when the Lokayukta
already received the complaint and registered the FIR, the
question of going back to Sessions Judge for filing the
complaint under Section 200 of Cr.P.C and referring the
complaint under section 156(3) of Cr.P.C does not arise.
As per the Hon'ble Supreme Court in Priyanaka
Srivastava's case the litigant shall approach the
Magistrate under section 200 of Cr.P.C and referring the
complaint to the police under section 156 (3) of Cr.P.C
only after exploring the remedies available before the
police under section 154 (1) and (3) of Cr.P.C. Such being
the case, the contention of the learned counsel for the
petitioner that this FIR is based upon the same cause of
action and multiple FIR's cannot be acceptable as there is
no multiple FIR in this case, since the earlier FIR has been
quashed by co-ordinate bench in Crl.P.No.3431/2015 .
However, if at all the complaint in PCR is pending before
the Sessions Judge, it is no use as the complainant can
withdraw the same on the ground of becoming infructuous
as the police already registered FIR and investigating the
matter. Therefore the judgment relied by the learned
counsel for the petitioner in AIR Online 2022 SC
1393::2022 (3) CRI LR (RAJ) 1132 is not applicable to
the case on hand as there is no multiple FIR on the same
cause of action. Therefore, the petition is devoid of merits
and liable to dismissed.
Accordingly the criminal filed by the petitioner
accused is hereby dismissed.
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The Karnataka High Court has refused to quash an alleged case of disproportionate assets against Bharatiya Janata Party (BJP) Leader M P Renukacharya. Justice K Natarajan, while dismissing the petition filed by the legislator, said the petition is devoid of merits and liable to be dismissed.On the private complaint filed by one Gurupadaiah, the police earlier registered FIR on 30.11.2015,...
The Karnataka High Court has refused to quash an alleged case of disproportionate assets against Bharatiya Janata Party (BJP) Leader M P Renukacharya.
Justice K Natarajan, while dismissing the petition filed by the legislator, said the petition is devoid of merits and liable to be dismissed.
On the private complaint filed by one Gurupadaiah, the police earlier registered FIR on 30.11.2015, wherein it was alleged Renukacharya had amassed wealth disproportionate to his known source of income while he was a Member of Legislature Assembly during 2004 to 2008, again from 2008 to 2013 and also from 25.12.2009 to 23.12.2013 when he was Cabinet Minister of Government of Karnataka.
Further it was claimed that in the year 2004 when he had filed nomination paper for contesting the MLA election at Honnalli, he declared his assets at Rs.26,07,319 and thereafter in the year 2008 election he declared his assets as Rs.73,97,828 and in the year 2013, he declared assets of Rs.4,95,32,608.
“There was rise of income and assets during his tenure as Minister in the State Government of Karnataka, he along with his brother has established Educational Institution by name Bapuji Educational Institution at Shimoga and the brothers had also amassed huge wealth when the petitioner was MLA and there after became the Minister,” the complaint said.
Based upon the private complaint, the matter was referred to Lokayukta police under section 156 (3) of Cr.P.C. In turn the police investigated the matter and submitted the report and an FIR was registered against the petitioner.
The prosecution was challenged by the petitioners before the High court which vide its order dated 04.09.2015, allowed the petition and quashed the FIR and consequential proceedings and liberty was reserved for complainant to pursue his complaint in accordance with procedure laid down by Hon'ble Supreme Court in the case of Priyanaka Srivastava and Anr. Vs. State of Uttar Pradesh and other.
Subsequently, the complainant again approached the Superintendent Police of Lokayuktha and filed the complaint and the same was registered by the Lokayuktha police under section 13 (1)(d) and (e) of the Prevention of Corruption Act, 1988 and section 120B and 420 of IPC.
The petitioners primarily contended that when the High Court set aside the FIR, the question of filing complaint to Lokayukta Police did not arise as the High Court had set aside the FIR for non following the guidelines of Priyanaka Srivastava.
The prosecution opposed the plea saying the previous complaint was quashed by the High Court on the ground for not following the guidelines issued by the Supreme Court in Priyanaka Srivastav's case as he did not approach the police and higher official of police under section 154 (1) & 154 (3) of Cr.P.C.
On going through the record the bench said: “Once the case filed under section 154(1) of Cr.P.C has been complied by the complainant and the police also registered the FIR. The question of the complainant going to the Superintendent of Lokayukta under section 154(3) of Cr.P.C does not arise. Moreover, when the Lokayukta already received the complaint and registered the FIR, the question of going back to Sessions Judge for filing the complaint under Section 200 of Cr.P.C and referring the complaint under section 156(3) of Cr.P.C does not arise.”
The bench also said contention of the counsel for the petitioner that the FIR is based upon the same cause of action and multiple FIRs cannot be accepted as there is no multiple FIR in this case, since the earlier FIR has been quashed by the co-ordinate bench.
“However, if at all the complaint in PCR is pending before the Sessions Judge, it is no use as the complainant can withdraw the same on the ground of becoming infructuous as the police have already registered FIR and are investigating the matter,” it added.
Case Title: M P Renukacharya And State of Karnataka
Case No: CRIMINAL PETITION NO.2098 OF 2017
Date of Order: 28-03-2023
Appearance: Advocate Hareesh Bhandary T for petitioner.
Advocate B.S. Prasad for R1.
Advocate J.D. Kashinath for R2.
|
: Criminal Appeal Nos. 380 of 1989 and 323 of 1988.
From the Judgment and Order dated 28.1.1988 of the Allahabad High Court in Crl.
Appln.
No. 995 of 1987.
G. Ramaswamy, Additional Solicitor General, Anil Dev Singh, Miss A. Subhashini and R.P. Kapur for the Appellants.
R.L. Kohli, Manoj Saxena and R.D. Upadhyay for the Respondents.
The Judgment of the Court was delivered by DUTT, J.
These two appeals by special leave, one pre ferred by the State of U .P. and the other by the State Bank of India, are directed against the judgment of the Allahabad High Court whereby the High Court has quashed the criminal proceedings being Crime Case No. 40 of 1983 in the Court of Special Judge, Anti Corruption, only as against the respond ent R.K. Srivastava.
In quashing the proceedings in the exercise of its jurisdiction under section 482 Cr.
P.C., the High Court took the view that allegations made in the First Information Report 836 (FIR) did not constitute any offence.
In order to appreciate the view of the High Court, it is necessary to refer to the FIR which reads as follows: "An information has been received that Shri P.C. Saxena and Shri Ram Kumar Srivastava while posted and functioning as Accountant and Clerk cum Godown Keeper in the State Bank of India, Agriculture Development Branch, Budaun, respectively entered into a criminal conspira cy with Shri Sarwant Singh and his wife Smt.
Rajwant Kaur, Props.
of M/s. National Mill Store, Budaun, during the month of June, 1982 to cheat the State Bank of India, Budaun, and in pursuance of the said criminal conspiracy an.amount of Rs.54,600 ' was withdrawn on the basis of false credit entry made in the books of accounts of the Bank and connected credit and debit vouchers were also prepared and passed by the accused employees of the Bank and payment were made to the accused persons, namely, Shri Sarwant Singh and Smt.
Rajwant Kaur who tendered cheque No. 348459 dated 2.5.
1982 for Rs.18,600 cheque No. 348482 for Rs. 19,200, date 2.6.
1982 and cheque No. 502206 dated 2.6.82 for Rs. 16,800 = 54,600.
The above facts constitute offence punishable u/s 120 B, 420, 468,471 I.P.C. and 5(2) r/w 5(1)(d) of PC Act, 1947.
A regular case is therefore regis tered and its investigation is entrusted to Shri V.P. Arya, Inspector of this establish ment." According to the FIR, as against three cheques of the aggre gate amount of Rs.54,600, presumably of three different Banks, a credit entry was made in the accounts of M/s. National Mill Stores Co., Budaun, and M/s. New Manufacturing Co., Budaun, and their partners, Sardar Sarwant Singh and his wife Smt.
Rajwant Kaur, in the State Bank of India and the said sum of Rs.54,600 was allowed to be withdrawn by them by the respondent and the accused P.C. Saxena.
The allegations in the FIR appear to be vague and al though it is alleged that the respondent and the accused P.C. Saxena made false credit entries in the books of ac counts of the Bank and connected credit and debit vouchers were also prepared and passed by them, no 837 particulars of the same have been given.
It appears from the chargesheet that the said Shri Sarwant Singh and his wife Smt.
Rajwant Kaur and their firms, namely, M/s. National Mill Stores Co., Budaun, and M/s. New ManufaCturing Co., Budaun, have current accounts in the State Bank of India, Budaun.
After the said three cheques amounting to Rs.54,600 were tendered, the respondent and the accused P.C. Saxena sent the said cheques for clearance and allowed the said Shri Sarwant Singh and his wife Smt.
Rajwant Kaur to with draw the sum of Rs. 54,600 from their current account.
It is now a well settled principle of law that if the allegations made in the FIR are taken at their face value and accepted in their entirety do not constitute an offence, the criminal proceedings instituted on the basis of such FIR should be quashed.
In the instant case, on the basis of the said FIR the respondent and the said P.C. Saxena and Shri Sarwant Singh were charged under sections 120 B, 420, 468 and 471 I.P.C. and section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act, 1947.
According to the appellant, as no prima facie case was made out against Smt.
Rajwant Kaur, wife of Shri Sarwant Singh, she has been dropped from the array of the accused persons.
The question is whether the facts disclosed in the FIR constitute the offences with which the accused have been charged.
It is manifestly clear from the allegations in the FIR that the respondent or the other accused had no inten tion whatsoever to make any wrongful gain or to make any wrongful loss to the Bank.
They had accepted the said three cheques amounting to Rs.54,600 and sent the same for clear ance after debiting the LOC account.
The said cheques have been encashed and the money was received by the State Bank of India.
It may be that there was some delay in crediting the LOC account or that the money against the three cheques were credited in the accounts of the said Shri Sarwant Singh and his wife, but the allegations made either in the FIR or in the charge sheet do not show that the respondent and the said P.C. Saxena had acted dishonestly, that is to say, acted with a deliberate intention to cause wrongful gain or wrongful loss.
In our opinion, the High Court has rightly held that the allegations made in the FIR do not constitute any offence of cheating, nor do they constitute any offence of forgery.
It is true that it has been alleged that the said sum of Rs.54,600 was withdrawn on the basis of false credit entries made in the books of accounts of the Bank and connected credit and debit vouchers were also prepared and passed by the respondent and the other accused.
When the said sum of Rs.54,600 838 had been allowed to be withdrawn by the said Shri Sarwant Singh and his wife, necessary entries had to be made in the books of accounts, but it is not understandable how these entries can be characterised as false entries.
No document has been referred to in the FIR as the outcome of forgery.
The High Court has rightly held that as the criminal proceedings have been started against the respondent on the basis of a FIR which does not contain any definite accusa tion, it amounts to an abuse of process of the court and, as such, is liable to be quashed.
We entirely agree with the view expressed by the High Court.
The High Court has quashed the proceedings only as against the respondent No. 1, R.K. Srivastava.
In our opin ion, when the allegations in the FIR are the same against all the accused persons, the entire proceedings as against all the accused persons including the said P.C. Saxena and the said Shri Satwant Singh should be quashed.
Accordingly, while we uphold the judgment of the High Court, we quash the entire criminal proceedings being Crime Case No. 40 of 1983 also as against the accused P.C. Saxena and Shri Sarwant Singh.
The appeals are disposed of as above.
N.P.V. Appeals disposed of.
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The respondents, two employees of a nationalised Bank and two account holders, were charged with offences punisha ble under Sections 120B, 420, 468, 471 I.P.C. and 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947.
The F.I.R. alleged that the two Bank employees entered into a criminal conspiracy with the two account holders to cheat the Bank and, in pursuance thereof an amount of Rs.54,600 was allowed to be withdrawn by the account hold ers, who had tendered three cheques aggregating to Rs.54,600, on the basis of the false credit entries in the books of accounts of the Bank, and connected credit and debit vouchers were also prepared.
The case against one of the account holders was later dropped.
The High Court quashed the proceedings only against Respondent No. 1 on the ground that the allegations made in the F.I.R. did not constitute any offence of cheating or forgery.
Against this decision, the State as well as the Bank filed appeals in this Court.
Quashing the proceedings against all the respondents, HELD: 1.
If the allegations made in the FIR taken at their face value and accepted in their entirety do not constitute an offence, the criminal proceedings instituted on the basis of such FIR should be quashed.
[837C] In the instant case, the Respondent No. 1 and the other accused had accepted the three cheques in question and sent the same for clearance after debiting the LOC account.
The cheques were encashed and the money was received by the Bank.
It may be that there was some delay in crediting the LOC account or that the money against the three 835 cheques were credited in the accounts of the account hold ers, but the allegations made either in the FIR or in the charge sheet do not show that they had acted dishonestly, or with deliberate intention to cause wrongful gain or wrongful loss to the Bank.
When the amount was allowed to be with drawn by the account holders, necessary entries had to be made in the accounts of the Bank and these entries cannot be characterised as false.
No document has been referred to in the FIR as the outcome of forgery.
[837E F, 838A] The High Court was, therefore, right in holding that the allegations made in the FIR did not constitute any offence of cheating or forgery and that as the criminal proceedings had been started on the basis of a FIR which did not contain any definite accusation and it amounted to an abuse of process of the Court, they were liable to be quashed.
[837G, 838B] Since the allegations in the FIR are the same against all the accused persons, the entire proceedings as against all the accused persons should be quashed.
Accordingly, the entire criminal proceedings are quashed.
[838C]
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The petitioner is before this Court calling in question
order dated 12-09-2019 passed on I.A.No.VII, by the II
Additional Principal Judge Family Court, Bengaluru in
M.C.No.1256 of 2012 c/w. M.C.No.824 of 2012.
2. Heard the petitioner who appeared in-person. The
respondent though served by all modes, has neither
appeared nor represented.
3. The facts that lead the petitioner to this Court, in
the subject petition, as borne out from the pleadings, are
The petitioner gets married to the respondent on
12.11.2010 and got their marriage registered under the
Special Marriage Act, 1954 (‘the Act’ for short). On their
relationship turning sore, the parties are before the Family
Court. The petitioner-wife has filed M.C.No.824 of 2012,
seeking restitution of conjugal rights and the respondent-
husband has filed M.C.No.1256 of 2012, seeking
annulment of marriage. The issue in the lis does not
concern merits of those proceedings. In the pending
proceeding, the petitioner initially filed an application
seeking maintenance at the hands of the husband. The
same comes to be allowed by the Court by grant of
maintenance at Rs.10,000/- per month. Challenging the
said order, with regard to the quantum of maintenance
granted, the respondent - husband preferred a petition
before this Court in Writ Petition No.32994 of 2016, which
had by then came to be dismissed. After about three years
of filing of the application and grant of maintenance, the
petitioner comes up with another application in I.A.VII
seeking enhancement of maintenance under Section 37 of
the Act, on the ground that there has been changed
circumstances and cost of living has also increased. The
learned Judge declines to accept the application on the
ground that the petitioner has not pleaded any changed
circumstances, which has forced her to seek enhancement
of maintenance or modification of the earlier order and has
not produced any documentary evidence to show that she
is in need of money in addition to the maintenance already
granted to her. Merely because the husband earns well, it
is not a right for the wife to claim more maintenance, is
the reason rendered by the concerned Court to decline
acceptance of the application. The rejection of the
application is what drives the petitioner to this Court in the
subject petition.
4. The petitioner appearing in-person would
vehemently contend that the respondent-husband is an
Anesthesiologist and a retired Squadron Leader and,
therefore, his earning is above Rs.1.5 lakhs to Rs.2/- lakhs
per month; that the maintenance that is awarded in the
year 2012 was Rs.10,000/- per month and in view of rise
in cost of living and the petitioner having no earnings of
her own, as she is still at nascent stage of Law practice,
she is seeking enhancement of maintenance.
5. With regard to service of notice upon the
husband, this Court has passed several orders in an effort
to get the respondent - husband served. When ordinarily
he could not be served, paper publication was also taken
out in terms of order dated 25-07-2022. Even then, the
respondent did not appear and the service of notice on him
is held sufficient on 24-08-2022. In view of his absence
throughout, the petitioner in-person is heard.
6. I have given my anxious consideration to the
submissions made by the petitioner and perused the
material on record.
7. The marriage between the petitioner and the
respondent is not in dispute, neither its subsistence as on
date. Two years after marriage, the petitioner - wife
institutes M.C.No.824 of 2012 seeking restitution of
conjugal rights and in the same breath, the respondent -
husband institutes M.C.No.1256 of 2012 seeking
annulment of marriage. As observed hereinabove, the
issue in the lis does not concern merits of matrimonial
petitions pending before the concerned Court.
8. The petitioner files an application before the
concerned Court seeking maintenance at an earlier point in
time, which was allowed by granting at Rs.10,000/- per
month in terms of the order of the concerned Court dated
26-03-2016. The maintenance was awarded from the date
of application. The said order came to be challenged by the
husband before this Court by filing Writ Petition No.32994
of 2016 qua quantum of maintenance, which comes to be
dismissed. The said dismissal becomes final. After three
years of the said dismissal, the wife again files an
application in I.A.No.VII seeking enhancement of
maintenance under Section 37(2) of the Act. Section 37
(2) of the Act, reads as follows:
“37. Permanent alimony and maintenance.―
(2) If the District Court is satisfied that
there is a change in the circumstances of
either party at any time after it has made an
order under sub-section (1), it may, at the
instance of either party, vary, modify or
rescind any such order in such manner as it
may seem to the court to be just.”
(Emphasis supplied)
The afore-quoted provision permits the wife to approach
the Court seeking enhancement of maintenance on
changed circumstances and if the Court is satisfied, it may
vary, modify or rescind the earlier order of grant of
maintenance. The concerned Court after noticing the
pleadings of the petitioner records that there is no change
in circumstance narrated by the petitioner to grant
enhancement of maintenance. The reasons rendered read
“12. On going through the IA, the petitioner
has not pleaded about any changed circumstance
which has forced her to seek
enhancement/modification of maintenance. So also,
the petitioner/wife has also not produced any
documentary evidence to show that she is in need of
maintenance in addition to the maintenance awarded
to her earlier. Merely because now the
respondent/husband is earning well, which is not
entitling the petitioner/wife to seek maintenance
from him. Hence, the decisions relied by the
petitioner/wife are not applicable to the case on hand
with due respect to it . Therefore, the petitioner/wife
has failed to satisfy the court that the earlier order of
maintenance has to be modified by enhancing the
maintenance from Rs.10,000/- p.m. to Rs.25,000/-
p.m. Accordingly, I answered point No.1 in the
It is this order that is called in question in the subject
petition. The petitioner seeks enhancement of maintenance
to Rs.25,000/- from Rs.10,000/- per month, which was
granted on 26.03.2016. Though the application was filed
three years after the grant of maintenance of Rs.10,000/-
p.m., today we are at the end of 2022 and beginning of
2023. It is therefore, the maintenance that is granted is
close to six years ago. The changed circumstance need
not be that the wife should narrate every circumstance of
her living, manner of living or the explicit details for
enhanced maintenance. It is permissible for the Court to
grant enhancement of maintenance on changed
circumstances. The changed circumstances in the case
would be passage of time and cost of living inter alia.
Therefore, the reason so rendered by the concerned Court
that there is no circumstance narrated for grant of
enhancement of maintenance, is unsustainable. Whether
the wife would be entitled to maintenance in a similar
manner, if she had lived in the house of her husband is
what is to be noticed. The Apex Court in the case of
REEMA SALKAN v. SUMER SINGH SALKAN1, has held
“13. Be that as it may, the High Court took
into account all the relevant aspects and justly
rejected the plea of the respondent about inability
to pay maintenance amount to the appellant on
the finding that he was well educated and an
able-bodied person. Therefore, it was not open
to the respondent to extricate from his
liability to maintain his wife. It would be
apposite to advert to the relevant portion of the
impugned judgment which reads thus: (Reema
Salkan case [Reema Salkan v. Sumer Singh
DLT 16] , SCC OnLine Del paras 80-84)
“80. The respondent during the cross-
examination has admitted that he too is
BCom, MA (Eco) and MBA from Kentucky
University, USA; the respondent is a
Canadian citizen working with Sprint
Canada and is earning Canadian $(CAD)
29,306.59 as net annual salary. However,
he has claimed that he has resigned from
Sprint Canada on 23-11-2010 and the same
has been accepted on 27-11-2010 and the
respondent since then is unemployed and
has got no source of income to maintain
himself and his family.
81. In the instant case, the petitioner
has filed the case under Section 125 CrPC,
1973 for grant of maintenance as she does
not know any skill and specialised work to
earn her livelihood i.e. in Para 26 of
maintenance petition against her husband.
However, the respondent husband who is
well educated and comes from extremely
respectable family simply denies the same.
The respondent husband in his written
statement does not plead that he is not an
able-bodied person nor he is able to prove
sufficient earning or income of the
petitioner.
82. It is an admitted fact emerging on
record that both the parties got married as
per Hindu rites and customs on 24-3-2002
and since then the petitioner was living with
her parents from 10-8-2002 onwards, and
the parents are under no legal obligation to
maintain a married daughter whose
husband is living in Canada and having
Canadian citizenship. The plea of the
respondent that he does not have any
source of income and he could not
maintain the wife is no answer as he is
mature and an able-bodied person
having good health and physique and
he can earn enough on the basis of him
being able-bodied to meet the
expenses of his wife. In this context,
the observation made in Chander
Parkash v. Shila Rani [Chander
Parkash v. Shila Rani, 1968 SCC OnLine
Del 52 : AIR 1968 Del 174] by this
Court is relevant and reproduced as
under : (SCC OnLine Del para 7)
‘7. … an able-bodied young man
has to be presumed to be capable of
earning sufficient money so as to be
able reasonably to maintain his wife
and child and he cannot be heard to
say that he is not in position to earn
enough to be able to maintain them
according to the family standard. It is
for such able-bodied person to show to
the Court cogent grounds for holding
that he is unable, for reasons beyond
his control, to earn enough to discharge
his legal obligation of maintaining his
wife and child.’
83. The husband being an able-bodied
person is duty-bound to maintain his wife
who is unable to maintain herself under the
personal law arising out of the marital
status and is not under contractual
obligation. The following observation of the
Apex Court in Bhuwan Mohan
Singh v. Meena, (2015) 6 SCC 353 : (2015)
AIR 2014 SC 2875] , is relevant : (SCC p.
‘2. Be it ingeminated that Section
125 of the Code of Criminal Procedure
(for short “the Code”) was conceived to
ameliorate the agony, anguish, financial
suffering of a woman who left her
matrimonial home for the reasons
provided in the provision so that some
suitable arrangements can be made by
the court and she can sustain herself
and also her children if they are with
her. The concept of sustenance does
not necessarily mean to lead the life of
an animal, feel like an unperson to be
thrown away from grace and roam for
her basic maintenance somewhere else.
She is entitled in law to lead a life in
the similar manner as she would have
lived in the house of her husband. That
is where the status and strata come
into play, and that is where the
obligations of the husband, in case of a
wife, become a prominent one. In a
proceeding of this nature, the husband
cannot take subterfuges to deprive her
of the benefit of living with dignity.
Regard being had to the solemn pledge
at the time of marriage and also in
consonance with the statutory law that
governs the field, it is the obligation of
the husband to see that the wife does
not become a destitute, a beggar. A
situation is not to be maladroitly
created whereunder she is compelled to
resign to her fate and think of life “dust
unto dust”. It is totally impermissible.
In fact, it is the sacrosanct duty to
render the financial support even if the
husband is required to earn money with
physical labour, if he is able-bodied.
There is no escape route unless there is
an order from the court that the wife is
not entitled to get maintenance from
the husband on any legally permissible
grounds.’
84. The respondent's mere plea that
he does not possess any source of income
ipso facto does not absolve him of his moral
duty to maintain his wife in presence of
good physique along with educational
qualification.”
14. The view so taken by the High Court is
unassailable. Indeed, the respondent has raised a
plea to question the correctness of the said view,
in the reply-affidavit filed in this appeal, but in our
opinion, the finding recorded by the High Court is
15. The only question is: whether the
quantum of maintenance amount determined
by the High Court is just and proper. The
discussion in respect of this question can be
traced only to para 85 of the impugned
judgment which reads thus : (Reema Salkan
case [Reema Salkan v. Sumer Singh Salkan,
maintenance is concerned, nothing
consistent is emerging on record to
show the specific amount which is
being earned by the respondent after
2010, however, the husband is legally
bound to maintain his wife as per the
status of a respectable family to which
he belongs. The husband being able-
bodied along with high qualification
BCom, MA (Eco) and MBA from
Kentucky University, USA could earn at
least minimum of Rs 18,332 as per the
current minimum wage in Delhi.
Therefore, the petitioner being wife is
entitled to Rs 9000 per month from 9-
12-2010 onwards till further orders.”
16. The principle invoked by the High
Court for determination of monthly
maintenance amount payable to the
appellant on the basis of notional minimum
income of the respondent as per the current
minimum wages in Delhi, in our opinion, is
untenable. We are of the considered opinion
that regard must be had to the living
standard of the respondent and his family,
his past conduct in successfully protracting
the disposal of the maintenance petition
filed in the year 2003, until 2015; coupled
with the fact that a specious and
unsubstantiated plea has been taken by him
that he is unemployed from 2010, despite
the fact that he is highly qualified and an
able-bodied person; his monthly income
while working in Canada in the year 2010
was over Rs 1,77,364; and that this Court
in Reema Salkan v. Sumer Singh
Salkan [Reema Salkan v. Sumer Singh
Salkan, (2019) 12 SCC 312] has prima facie
found that the cause of justice would be
subserved if the appellant is granted an
interim maintenance of Rs 20,000 per month
commencing from 1-11-2014. At this
distance of time, keeping in mind the
spiraling inflation rate and high cost of living
index today, to do complete justice between
the parties, we are inclined to direct that the
respondent shall pay a sum of Rs 20,000 per
month to the appellant towards the
maintenance amount with effect from
January 2010 and at the rate of Rs 25,000
per month with effect from 1-6-2018 until
further orders. We order accordingly.
17. We, therefore, direct the respondent to
pay the enhanced maintenance amount, as
determined in terms of this order, to the appellant
within a period of eight weeks from today after
duly adjusting the amount already deposited in
Court/paid to the appellant till date. The appellant
will be entitled to forthwith withdraw the
maintenance amount deposited by the respondent
in Court, if any. The impugned judgment of the
High Court is accordingly modified in the
aforementioned terms.”
The Apex Court holds that Section 125 of the Cr.P.C. was
conceived to ameliorate agony, anguish, financial suffering
of a woman and, therefore, maintenance should be
awarded on a rational basis. At this distance of time,
keeping in mind the spiraling inflation rate and high cost of
living, an order should be passed granting such
9. In the light of the judgment rendered by the Apex
Court (supra), it cannot be said that the petitioner was not
entitled for enhancement in maintenance. The earning of
the husband was not in dispute, as the Court records that
merely because the husband earns Rs.1.5 lakhs to Rs.2.00
lakhs a month, enhancement of maintenance cannot be
granted. Therefore, the reason rendered by the concerned
Court is on the face of it, is erroneous. In the light of the
judgment of the Apex Court and the facts obtaining in the
case at hand, I deem it appropriate to enhance the
maintenance to the wife from Rs.10,000/- to Rs.20,000/- a
month, from the date of filing of the application before the
10. It is noticed that two petitions – one for
annulment of marriage filed by the husband and the other
for conjugal rights filed by the wife, are pending
consideration before the concerned Court for the last 10
years. There can be no justification for keeping the matter
for 10 long years. Therefore, the concerned Court shall
make every endeavour to conclude the proceedings as
expeditiously as possible and at any rate within 3 months,
is a direction that needs to be given in the case at hand.
11. For the aforesaid reasons, I pass the following:
(i) The Writ petition is allowed.
(ii) The order dated 12.09.2019 passed on I.A.VII
by the II Additional Principal Judge, Family
Court, Bengaluru, stands quashed
(iii) The application I.A.VII filed by the petitioner
seeking enhancement of maintenance is
allowed. The petitioner is entitled to
maintenance at Rs.20,000/- per month from
the date of the application.
Bengaluru shall conclude the proceedings in
M.C.Nos.824 of 2012 and 1256 of 2012, within
three months from the date of receipt of a
copy of this order, if not earlier.
(v) It is needless to observe that the parties to the
lis shall co-operate for the conclusion of
proceedings.
(vi) The concerned Court would be free to pass
appropriate orders, in the event the parties
would further seek to drag on the proceedings.
The Court is further free to regulate the
procedure for such speedy disposal.
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The Karnataka High Court has said that 'passage of time' and 'cost of living' are valid grounds to be considered as changed circumstances for enhancing maintenance amount granted to wife under Special Marriage Act.
A single judge bench of Justice M Nagaprasanna allowed the petition filed by one Vineetha Thomas and increased the maintenance amount of Rs 10,000 granted to her in the year 2016 to Rs 20,000.
The bench said, "The changed circumstance need not be that the wife should narrate every circumstance of her living, manner of living or the explicit details for enhanced maintenance. It is permissible for the Court to grant enhancement of maintenance on changed circumstances. The changed circumstances in the case would be passage of time and cost of living inter alia."
The court thus set aside the order of Family Court which rejected her application under Section 37 of the Special Marriage Act for enhancement of maintenance. The Family Court had said that merely because the husband earns well, it is not a right for the wife to claim more maintenance.
The High Court observed that maintenance of Rs.10,000 p.m. was granted almost six years ago. Referring to the judgment of the Apex court in the case of Reema Salkan v. Sumer Singh Salkan, it said, "The Apex Court holds that Section 125 of the Cr.P.C. was conceived to ameliorate agony, anguish, financial suffering of a woman and, therefore, maintenance should be awarded on a rational basis...At this distance of time, keeping in mind the spiraling inflation rate and high cost of living, an order should be passed granting such maintenance."
It then held "In the light of the judgment rendered by the Apex Court (supra), it cannot be said that the petitioner was not entitled for enhancement in maintenance. The earning of the husband was not in dispute, as the Court records that merely because the husband earns Rs.1.5 lakhs to Rs.2.00 lakhs a month, enhancement of maintenance cannot be granted. Therefore, the reason rendered by the concerned Court is on the face of it, is erroneous."
Case Title: Vineetha Thomas v. SQD LDR Dr Praveen Kumar Borushetty
Case No: WP 16949 of 2021
Date of Order: 06-12-2022
Appearance: Vineetha Thomas–party in person.
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Through Mr. Jitender Solanki and Mr. Vikrant,
with petitioner in person.
Through Ms. Kusum Dhalla, APP for the State.
Mr. Ashok Kumar Kailashi and Mr.
the complainant/respondent No.2.
along with the complainant in person.
1. The present petition under Section 482 of the Code of Criminal
Procedure (Cr.P.C.) has been filed for quashing FIR No.526/2020, dated
15.07.2020, registered at Police Station Vikas Puri, Delhi, for offences
under Sections 354 and 506 IPC, on the ground that the complainant and
the petitioner/accused have amicably settled the matter and no useful
purpose would be served in continuing the proceedings.
2. Shorn of details the facts leading to the petition are as follows:
a) The prosecutrix registered a complaint on 15.07.2020 in Police
Station Vikas Puri stating that on 15.07.2020, at about 4:30 PM,
after finishing work at her office she was sitting at PVR complex on
the backside of PVR slums beside an open gym with her three
colleagues.
b) It is stated that the petitioner herein came towards them and
started talking to the prosecutrix and said that he is a millionaire.
When he was rebuked and asked to go away he left, but after ten
minutes he once again came there and tried to speak with the
prosecutrix. It is stated that the prosecutrix wanted to go away but
the petitioner held her hand and twisted it behind her back.
c) It is stated that he hit the prosecutrix on her face and her
spectacles fell down. It is further stated that the petitioner hit the
prosecutrix with his bag.
d) It is stated that when the prosecutrix started making noise,
people started gathering there and the petitioner ran away. On the
basis of the complaint, FIR No.526/2020, dated 15.07.2020, was
registered at Police Station Vikas Puri, Delhi, for offences under
Sections 506 and 354 IPC.
e) The petitioner was arrested on 21.07.2020 and later on
released on bail.
f) Charge-sheet has been filed.
3. As stated above this petition has been filed on the ground that the
parties have compromised. The complainant is present in the Court today.
The complainant states that she would not like to pursue with the matter.
4. In the present case it is the victim who is the ultimate sufferer. She
has been harassed by the petitioner and she is being further harassed in the
proceedings initiated against the petitioner.
5. It is well settled that the High Court has the power to quash
FIR/complaint on the basis of a compromise arrived at between the parties
while exercising its jurisdiction under Section 482 Cr.P.C. The Supreme
Court in Gian Singh v. State of Punjab, (2012) 10 SCC 303 observed as
“61. 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
(ii) to prevent abuse of the process of any court.
In what cases power to quash the criminal proceeding
or complaint or FIR may be exercised where the
offender and the victim have settled their dispute
would depend on the facts and circumstances of each
case and no category can be prescribed. However,
before exercise of such power, the High Court must
have due regard to the nature and gravity of the
crime. Heinous and serious offences of mental
depravity or offences like murder, rape, dacoity, etc.
cannot be fittingly quashed even though the victim or
victim's family and the offender have settled the
dispute. Such offences are not private in nature and
have a serious impact on society. Similarly, any
compromise between the victim and the offender in
relation to the offences under special statutes like the
Prevention of Corruption Act or the offences
committed by public servants while working in that
capacity, etc.; cannot provide for any basis for
quashing criminal proceedings involving such
offences. But the criminal cases having
overwhelmingly and predominatingly civil flavour
stand on a different footing for the purposes of
quashing, particularly the offences arising from
commercial, financial, mercantile, civil, partnership
or such like transactions or the offences arising out of
matrimony relating to dowry, etc. or the family
disputes where the wrong is basically private or
personal in nature and the parties have resolved their
entire dispute. In this category of cases, the High
Court may quash the criminal proceedings if in its
view, because of the compromise between the offender
and the victim, the possibility of conviction is remote
and bleak and continuation of the criminal case would
put the accused to great oppression and prejudice and
extreme injustice would be caused to him by not
quashing the criminal case despite full and complete
settlement and compromise with the victim. In other
words, the High Court must consider whether it would
be unfair or contrary to the interest of justice to
continue with the criminal proceeding or continuation
of the criminal proceeding would tantamount to abuse
of process of law despite settlement and compromise
between the victim and the wrongdoer and whether to
secure the ends of justice, it is appropriate that the
criminal case is put to an end and if the answer to the
above question(s) is in the affirmative, the High Court
shall be well within its jurisdiction to quash the
criminal proceeding.”
6. A perusal of the complaint shows that the petitioner has acted in a
very high handed manner. There are CCTV footages which show that the
petitioner has committed the offence under Section 354 and 506 IPC. There
are eye-witnesses to the incident. Since the complainant does not want to
pursue the complaint it would be futile to continue with the prosecution.
7. Looking at the facts and the conduct of the petitioner, this Court is
inclined to direct the petitioner to do some social service to atone for his
sins. He is also warned not to repeat such actions in the future.
8. The petitioner is directed to do one month community service at the
de-addiction Centre run by the Society for Promotion of Youth & Masses
Delhi-110002, from 01.04.2021 to 30.04.2021.
9. This Court is also inclined to impose cost of Rs.1,00,000/-(Rupees
One Lakh Only) on the petitioner. The amount shall be paid to the
a) Sum of Rs.25,000/-(Rupees Twenty Five Thousand Only) in
the ‘DHCBA Lawyers Social Security and Welfare Fund’.
b) Sum of Rs.25,000/-(Rupees Twenty Five Thousand Only) in
the ‘Nirmal Chhaya Foundation’.
c) Sum of Rs.50,000/-(Rupees Twenty Five Thousand Only) in
the ‘Army Welfare Fund Battle Casualties’.
Copy of the receipts be filed with the Registry within three weeks from
today to show compliance of the order. After completion of one month, a
certificate from the Centre be also filed to show compliance of the order. In
case of any absenteeism/default on the part of the petitioner or any
misbehavior on the part of the petitioner the same shall be conveyed
immediately by the Centre to the concerned SHO, who shall in turn inform
the learned APP for the State, for bringing the same to the notice of the
Court and for seeking recall of the orders passed today.
10. With the above directions the petition is disposed of along with the
pending application.
11. A copy of this order be transmitted to Society For Promotion of
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The Delhi High Court on Friday (26th March) directed a man accused of assaulting a woman to do 1-mon community service at the de-addiction Centre 'to atone for his sins' while quashing the FIR against him on the ground of a compromise being entered between the parties.
A single-judge bench comprising of Justice Subramonium Prasad passed the direction while imposing a cost of Rs. 1 lakh after observing that a perusal of the complaint showed that the petitioner had acted in a very high-handed manner.
Facts in brief
An FIR was registered after the woman victim made a formal complaint that on 15th July 2020, she was sitting at the PVR complex when petitioner herein came towards her and started talking to the prosecutrix and said that he is a millionaire.
When he was rebuked and asked to go away, he left, but after ten minutes he once again came there and tried to speak with the prosecutrix.
It was stated that the prosecutrix wanted to go away but the petitioner held her hand and twisted it behind her back, further, he hit the prosecutrix on her face and her spectacles fell down and in response to this, the petitioner hit the prosecutrix with his bag.
However, later on, the instant petition under Section 482 of the Code of Criminal Procedure (Cr.P.C.) was filed for quashing the FIR on the ground that the complainant and the petitioner/accused have amicably settled the matter and no useful purpose would be served in continuing the proceedings.
Court's order
At the outset, the Court noted that the victim is the ultimate sufferer and that she had been harassed by the petitioner and she was being further harassed in the proceedings initiated against the petitioner.
Further, noting that in the instant case there are CCTV footages which show that the petitioner had committed the offence under Section 354 and 506 IPC, the Court remarked,
"Since the complainant does not want to pursue the complaint it would be futile to continue with the prosecution."
Thus, quashing the FIR, the Court directed the petitioner to do some social service to atone for his sins and was also warned not to repeat such actions in the future.
The petitioner has been directed to do a one-month community service at the de-addiction Centre run by the Society for Promotion of Youth & Masses Centre, from 01.04.2021 to 30.04.2021.
Also, the amount of 1 Lakh has been directed to be paid to the following institutions:
a) Sum of Rs.25,000/-(Rupees Twenty Five Thousand Only) in the 'DHCBA Lawyers Social Security and Welfare Fund'.
b) Sum of Rs.25,000/-(Rupees Twenty Five Thousand Only) in the 'Nirmal Chhaya Foundation'.
c) Sum of Rs.50,000/-(Rupees Twenty Five Thousand Only) in the 'Army Welfare Fund Battle Casualties.
In related news, the Delhi High Court recently directed a young accused of 21 years to do one-month community service at Gurudwara Bagala Sahib while quashing the FIR against him on the ground of a compromise being entered between the parties. The Court directed the community service to continue from 16th March to 16th April 2021.
Case title - Vikramjeet Singh v. State & anr. [CRL.M.C. 993/2021 & CRL.M.A. 5066/2021]
Read Order
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1. This is a petition filed seeking setting aside of the orders dated
26.07.2021, 15.09.2021 and 18.10.2021 passed by the learned Metropolitan
Magistrate, Mahila Court-02, South East, Saket District Court, Delhi in CT
titled qua car bearing
2. The present petition has its genesis in a matrimonial dispute between
respondent No. 2 and respondent No. 3 who are wife and husband
respectively. Admittedly, petitioner is a company of which 75% shares were
Digitally Signed byAMIT CRL.M.C. 2872/2022 Page 1 of 16
held by respondent No.3. The petitioner company is engaged in business of
construction, real estate. The petitioner is the registered owner of car bearing
registration No. make Audi Q7 (hereinafter referred to as
„Audi car‟). As per the petition, the company had given the said car to
respondent No. 3 for his official use and was being used by respondent
3. It is further stated that the said car was returned by respondent No.3 to
petitioner at the time of his resignation, i.e 02.07.2021. On 19.07.2021,
respondent No. 2 took the car from the possession of the petitioner having
original title documents of 24 properties of the clients of the petitioner.
Since the petitioner was not aware of the whereabouts of the Audi car, the
petitioner filed a complaint at Sector 49, Noida Police Station with respect to
the theft of the Audi car.
4. On 01.08.2021, FIR No. 861/2021 was registered at Sector 49, Noida
Police Station, under Section 379 IPC qua theft of the Audi car and original
title documents of the 24 properties.
5. In the meanwhile, respondent No. 2 initiated proceedings under
Protection of Women from Domestic Violence Act against respondent No. 3
before learned MM, Mahila Court-02, South East, Saket District Court,
6. The petitioner was informed subsequently that the car is in the power
and possession of respondent No. 2 and her possession is protected by the
order of learned MM Mahila Court.
7. On 26.07.2021, respondent No. 2 and respondent No. 3 were referred
to mediation. On the said date, the counsel for the respondent No.3 had
made a statement that the Audi car must be returned by the respondent No. 2
Digitally Signed byAMIT CRL.M.C. 2872/2022 Page 2 of 16
and in place the respondent No. 3 would provide respondent No. 2 a BMW
car. However, the learned counsel for the respondent No. 3 later retracted
from the said statement regarding providing of a BMW car.
8. On 15.09.2021, the learned MM Court directed that the said Audi car
will remain in power and possession of the respondent No. 2 till the matter is
heard on merits. On 18.10.2021, the application filed by petitioner company
seeking review of the order dated 15.09.2021 was dismissed. The learned
MM Court was of the view that there is no power of review under Protection
of Women from Domestic Violence Act. In addition, the learned MM Court
was of the view that assuming that the powers of Section 25 (2) of the
Domestic Violence Act permitted alteration/modification of the order, the
petitioner, i.e. the intervener before the learned MM Court had no locus
standi to move the application as it was neither an aggrieved person within
the meaning of the Act nor the respondent. Lastly, the learned MM Court
was of view that the respondent No. 3 was a Director of the petitioner
company with 75% shares. The respondent No. 3 resigned from petitioner
company only after the order of 26.07.2021 had been passed. Hence, the
learned MM dismissed the application filed on 04.10.2021 moved by the
petitioner company for return of the Audi car.
9. Mr Vachher, learned counsel for petitioner states that the petitioner
company is suffering at the hands of the husband and wife i.e respondent
No. 3 and respondent No. 2 without any fault of the petitioner company. He
further states that in addition to the loss of car, there are original property
papers also lying were in the car and one Mr A.C. Juneja has initiated
criminal proceedings against the petitioner in this regard. He further submits
that petitioner being the registered owner of the Audi car, cannot be
Digitally Signed byAMIT CRL.M.C. 2872/2022 Page 3 of 16
deprived of its assets on account of matrimonial disputes between
Respondents 2 and 3.
10. Mr. Vachher has also relied upon Section 29 of Prevention of Women
from Domestic Violence Act to state that since the petitioner is neither the
respondent nor an aggrieved person in the present case, he cannot maintain
an appeal under section 29 of the said act.
11. Mr Jauhar, learned counsel appearing for respondent No. 2 states that
the present petition is a proxy litigation by respondent No. 3, i.e. the
husband. He further states that the petitioner has already submitted to the
jurisdiction of the learned MM Court and has already filed an application for
recall of the order dated 15.09.2021. Once petitioner has submitted to the
jurisdiction, the present petition is not maintainable as all the orders i.e.
orders dated 26.07.2021, 15.09.2021 and 18.10.2021 are intermediate
orders. He further submits that the respondent No. 3 on 26.07.2021 made a
statement to the Court that he would provide the respondent No. 2 with a
BMW car in place of the Audi car and on that statement, respondent No. 2
was agreeable. Respondent No. 2 even today is agreeable to return the Audi
car, provided a BMW car is provided to respondent No. 2. Lastly, he
submits that the respondent No. 3 resigned from the petitioner company only
to play mischief with the Court and to deprive respondent No. 2 of the
benefits of orders dated 26.07.2021, 15.09.2021 and 18.10.2021. The
respondent No. 3 was a 75% shareholder of the petitioner company and a
Director and he resigned from Directorship only after passing of the orders.
12. I have heard learned counsel for the parties.
13. In present case, the first question which arises for my determination is
whether the present petition is maintainable against orders passed by the
Digitally Signed byAMIT CRL.M.C. 2872/2022 Page 4 of 16
learned MM under Section 12 of the Domestic Violence Act. It was stated
by Mr. Jauhar that the petitioner should have filed an appeal under Section
29 of the Protection of Women from Domestic Violence Act. I am unable to
agree. The petitioner in the present case is neither a respondent nor an
aggrieved person. As per section 2(a) of the Protection of Women from
Domestic Violence Act, an “aggrieved person” means any woman who is,
or has been, in a domestic relationship with the respondent and who alleges
to have been subjected to any act of domestic violence by the respondent. On
the other hand, section 2(q) of the Act defines a “respondent” as any adult
male person who is, or has been, in a domestic relationship with the
aggrieved person and against whom the aggrieved person has sought any
relief under this Act. The petitioner in the present case is a company of
which respondent No. 3 was a Director and 75 % shareholder. The
judgement of Chaitanya Singhania and Masood Khan is applicable to the
facts of the present case. In „Chaitanya Singhania and Another v.
Khushboo Singhania‟ (2021 SCC OnLine Cal 2602) on 27.09.2021, it was
“47. Similarly, there is no bar in invoking Section 482 in the
cases under Protection of Women against Domestic Violence
Act, 2005. In Suresh Ahirwar vs. Priya Ahirwar [M. Cr. C
No.22777/2017], vide order dated 11th November, 2018, the
Madhya Pradesh High Court quashed a proceeding
under Section 482 of the Code where aggrieved person
impleaded some persons as respondents in a proceeding
under Section 12 of the said Act with whom she had no
domestic relationship.
Digitally Signed byAMIT CRL.M.C. 2872/2022 Page 5 of 16
48. This being the interpretation of the statute, a court of the
Judicial Magistrate or the Metropolitan Magistrate cannot
pass any order in a proceeding under Section 125 of the Code
or under the provision of Protection of Women against
Domestic Violence where there is no relation or domestic
relation exists between the parties. For example, an order of
maintenance cannot be passed against a stranger. Similarly,
an order of residence under Section 19 of the said Act cannot
be passed against a landlord under the instance of an
aggrieved person. Even a residence order cannot be passed
against the father-in-law of the aggrieved person if the
residence is not a shared household of the respondent along
with his father (See Satish Chander Ahuja Vs. Sneha Ahuja
reported in (2021) 1 SCC 414). If such application is filed by
an aggrieved person, will it be a logical proposition that the
respondent will not be able to nip the proceedings in bud
without waiting for a prolonged trial or otherwise wait for a
considerable period till the disposal of trial? My considered
reply is - such questions affecting the maintainability of the
procedure itself can be decided by this Court under Section
482 of the Code of Criminal Procedure.”
14. Furthermore, in „Masood Khan v. Millie Hazarika‟ (2021 SCC
OnLine Megh 58) on 04.03.2021, it was observed as under-
“35. The applicability of the said provision of Section 28 of the
said DV Act in criminal proceedings was emphasized by the
Digitally Signed byAMIT CRL.M.C. 2872/2022 Page 6 of 16
Hon'ble Supreme Court in the case of Satish Chander Ahuja
(supra) at paragraphs 138 and 139 where it has restated that
the procedure to be followed shall be under the Code of
36. The learned counsel for the Respondent No. 2 has
submitted that the Hon'ble Supreme Court in the said case of
Satish Chander Ahuja (supra) at paragraph 146 of the same
has pointed out that only Section 19 of the DV Act, 2005 has
been singled out for consideration and exposition to examine
the conflict between orders passed in a criminal proceeding on
a civil proceeding and as such, it is maintained that the
observation of the Court at paragraphs 138 and 139 are
limited to this extent.
37. This Court is not in agreement with the submission of the
learned counsel for the Respondent No. 2 on the observation of
the Hon'ble Supreme Court in the said case of Satish Chander
Ahuja (supra) to say that it is limited, when it is clearly seen
that the Hon'ble Supreme Court has clearly spelt out
its position on the nature of proceedings under the DV Act,
2005 being governed by the procedure under the Code of
Criminal Procedure which is only a reiteration of the stated
provision of Section 28 and as such, the relief or remedy may
be civil in nature, but the procedure to be followed under
the DV Act, particularly for proceedings under Sections
12, 18, 19, 20, 21, 22 and 23 as well as under Section 31 has
Digitally Signed byAMIT CRL.M.C. 2872/2022 Page 7 of 16
to be governed by the provisions of the Code of Criminal
Procedure. Even reference to paragraph 146 would also show
that Section 19 of the DV Act which is under consideration, is
one of the section indicated above to be governed by the
procedure of Code of Criminal Procedure.
38. It is also a fact that Section 482 Cr.P.C provides for
inherent power on the High Court to make such order as may
be necessary to give effect to any order under the Code and as
stated above, proceedings under the DV Act being governed by
the procedure under the Cr.P.C, therefore the logical
conclusion would be that an application under Section 482 is
maintainable qua order passed under Sections
12, 18, 19, 20, 21, 22 and 23 of the DV Act.
39. With due respect, the decisions of the Hon'ble Kerala High
Court and the Madras High Court cited above and relied upon
by the learned Counsel for the Respondent No 2, as far as the
procedural aspects under the DV Act is concerned, would not
stand the test in the light of the decision of the Hon'ble
Supreme Court in the case of Satish Chander Ahuja (supra).
40. Consequently, this Court finds that this instant petition
under Section 482 Cr.PC is maintainable. The submission and
contention of the parties on the issue of consideration of
converting this instant petition into one under Article 227 and
the authorities referred thereto would therefore not require
Digitally Signed byAMIT CRL.M.C. 2872/2022 Page 8 of 16
any decision or observation by this Court under the
circumstances.”
15. Hence, for the reasons stated above and relying on the judgments, I
am of the view that the petitioner company is not a respondent and the
respondent No. 2 is not an aggrieved person within the meaning of
Protection of Women from Domestic Violence Act vis-à-vis each other and
hence the petitioner cannot be relegated to filing an appeal under section 29
of Protection of Women from Domestic Violence Act.
16. Coming to the second limb of the argument, whether the learned MM
could have passed an order permitting the respondent No. 2 to retain the
control of the said Audi car? The Audi car belongs to the petitioner company
and the RC bearing No. is not in dispute. As already held, it is
not the petitioner company which is in a domestic relationship with
respondent No. 2. At best, the car was given to respondent No. 3 maybe as a
75% shareholder or as a Director of petitioner company, as a benefit. The
respondent No.2 under Section 12 of the Domestic Violence Act can only
have a grievance against the respondent No. 3 with whom she was in a
domestic relationship. Section 19 and 22 of the Act entitles the respondent
No. 2 with right of residence as well as relief of compensation and damages
against the respondent who has been defined under Section 2(q). The
petitioner company does not come within the ambit of the said definition.
The lifting of corporate veil and to hold that the Audi car even though
belongs to petitioner company but in fact belongs to respondent No. 3,
would not be legally tenable. The company and its shareholders and
Directors are separate legal entities.
Digitally Signed byAMIT CRL.M.C. 2872/2022 Page 9 of 16
17. The Supreme Court in „Abhilash Vinodkumar Jain v. Cox & Kings
(India) Ltd.’ [(1995) 3 SCC 732] has held that-
“18. Section 630 of the Act provides speedy relief to the
company where its property is wrongfully obtained or
wrongfully withheld by an "employee or an officer" or a "past
employee or an officer" or "legal heirs and representatives"
deriving their colour and content from such an employee or
officer" in so far as the occupation and possession of the
property belonging to the company is concerned. The failure
to deliver property back to the employer on the termination,
resignation, superannuation or death of an employee, would
render the "holding" of that property wrongful and actionable
under Section 630 of the Act. To hold that the "legal heirs"
would not be covered by the provisions of Section 630 of the
Act would be unrealistic and illogical. It would defeat the
"beneficent" provision and ignore the factual realities that the
legal heirs or family members who are continuing in
possession of the allotted property, had obtained the right of
occupancy with the employee concerned in the property of the
employer only by virtue of their relationship with the
employee/officer and had not obtained or acquired the right to
possession of the property in any other capacity, status or
right. The legislature, which is supposed to know and
appreciate the needs of the people, by enacting Section 630 of
the Act manifested that it was conscious of the position that
today in the corporate sector - private or public enterprise -
Digitally Signed byAMIT CRL.M.C. 2872/2022 Page 10 of 16
the employees officers are often provided residential
accommodation by employer for the 'use and occupation' of
the concerned employee during the course of his employment.
More often than not, it is a part of the service conditions of the
employee that the employer shall provide him residential
accommodation during the course of his employment. If an
employee or a past employee or anyone claiming the right of
occupancy under them, were to continue to 'hold' the property
belonging to the company, after the right to be in occupation
has ceased for one reason or the other, it would not only
create difficulties for the company, which shall not be able to
allot that property to its other employees, but would also cause
hardship for the employee awaiting allotment and defeat the
intention of the legislature.”
18. The Hon‟ble Supreme Court in „Life Insurance Corporation of India
v Escorts Ltd & Ors.’ [1986] 1 SCC 264] on 19.12.1985 had observed that-
“90. … Generally and broadly speaking, we may say that the
corporate veil may be lifted where a statute itself contemplates
lifting the veil, or fraud or improper conduct is intended to be
prevented or a taxing statute or a beneficent statute is sought to
be evaded or where associated companies are inextricably
connected as to be in reality, part of one concern.”
19. Further, the Hon‟ble Supreme Court in „P.C. Agarwala v. Payment of
Wages Inspector, M.P’ [(2005) 8 SCC 104] in the year 2005 has cited with
Digitally Signed byAMIT CRL.M.C. 2872/2022 Page 11 of 16
approval the law laid down in “Salomon v. Salomon & Co”, holding that a
company is a separate legal entity and the corporate veil is to be lifted only
in exceptional circumstances and cases like serious fraud. It has opined that-
“21. In TELCO v. State of Bihar [(1964) 6 SCR 885 : AIR 1965 SC
40] the basic features of a company, its corporate existence and its
position vis-á-vis shareholders was highlighted as follows: (SCR pp.
“The true legal position in regard to the character of
a corporation or a company which owes its incorporation
to a statutory authority, is not in doubt or dispute. The
corporation in law is equal to a natural person and has a
legal entity of its own. The entity of the corporation is
entirely separate from that of its shareholders; it bears its
own name and has a seal of its own; its assets are
separate and distinct from those of its members; it can
sue and be sued exclusively for its own purpose; its
creditors cannot obtain satisfaction from the assets of its
members; the liability of the members or shareholders is
limited to the capital invested by them; similarly, the
creditors of the members have no right to the assets of the
corporation. This position has been well established ever
since the decision in the case of Salomon v. Salomon &
Co. [1897 AC 22 : (1895-99) All ER Rep 33 (HL)] was
pronounced in 1897; and indeed, it has always been the
well-recognised principle of common law. However, in
Digitally Signed byAMIT CRL.M.C. 2872/2022 Page 12 of 16
the course of time, the doctrine that the corporation or a
company has a legal and separate entity of its own has
been subjected to certain exceptions by the application of
the fiction that the veil of the corporation can be lifted
and its face examined in substance. The doctrine of the
lifting of the veil thus marks a change in the attitude that
law had originally adopted towards the concept of the
separate entity or personality of the corporation. As a
result of the impact of the complexity of economic factors,
judicial decisions have sometimes recognised exceptions
to the rule about the juristic personality of the
corporation. It may be that in course of time these
exceptions may grow in number and to meet the
requirements of different economic problems, the theory
about the personality of the corporation may be confined
more and more.”
23. Gower has similarly summarised this position with an
observation that in a number of important respects, the legislature
has rent the veil woven by Salomon case [1897 AC 22 : (1895-99)
All ER Rep 33 (HL)] . Particularly this is so, says Gower, in the
sphere of taxation and in the steps which have been taken towards
the recognition of the enterprise entity rather than corporate entity.
It is significant, however, that according to Gower the courts have
only construed the statutes as “cracking open the corporate shell”
when compelled to do so by the clear words of the statute—indeed
Digitally Signed byAMIT CRL.M.C. 2872/2022 Page 13 of 16
they have gone out of their way to avoid this construction whenever
possible. Thus, at present the judicial approach in cracking open
the corporate shell is somewhat cautious and circumspect. It is only
when the legislative provision justifies the adoption of such a
course that the veil has been lifted. In exceptional cases where the
courts have felt “themselves able to ignore the corporate entity and
to treat the individual shareholder as liable for its acts” the same
course has been adopted. Summarising his conclusions, Gower has
classified seven categories of cases where the veil of corporate
body has been lifted. But it would not be possible to evolve a
rational, consistent and inflexible principle which can be invoked in
determining the question as to whether the veil of the corporation
should be lifted or not. Broadly, where fraud is intended to be
prevented, or trading with the enemy is sought to be defeated, the
veil of the corporation is lifted by judicial decision and the
shareholders are held to be “persons who actually work for the
corporation.”
20. In the present case which is a matrimonial dispute, the corporate veil
cannot be permitted to be lifted to hold that the Audi car bearing registration
No. even though belongs to the petitioner company, must be
held to be belonging to and owned by respondent No. 3. The respondent
No.3 was a director of the petitioner company and a 75% shareholder. There
is another shareholder who owns 25% of the shareholding and there are
other directors of the petitioner company.
Digitally Signed byAMIT CRL.M.C. 2872/2022 Page 14 of 16
21. The learned counsel for respondent No. 2 has tried to emphasise that
respondent No. 3 has been showing incorrect dates of resignation. He states
that respondent No. 3 has fraudulently shown his date of resignation as a
director from the petitioner company on 02.07.2021, when in fact he had
resigned from the petitioner company on 04.08.2021, i.e, only after passing
of the consent order dated 26.07.2021. The same is irrelevant for purpose of
adjudication as the proceedings which have been enumerated hereinabove
cannot be brought within the ambit of the phrase “fraud”. Black‟s Law
Dictionary has defined fraud as “A knowing misrepresentation of the truth or
concealment of a material fact to induce another to act to his or her
detriment”. The act and conduct of the respondent No. 3 does not come
within the said definition of fraud. The respondent No. 3 is entitled to resign
as a director from the petitioner company as and when he desires. The law
permits him to do so. Once the respondent No. 3 has done a legally
permissible act, the same cannot be considered a fraud in any way. Hence,
there cannot be a declaration to hold that the said Audi Car belongs not the
petitioner company but to the respondent No. 3.
22. For the aforesaid reasons, I am inclined to allow the petition. The
orders dated 26.07.2021, 15.09.2021 and 18.10.2021 as far as permitting
respondent No. 2 to retain the Audi car are set aside and Audi car bearing
registration No. must be returned to the petitioner company
within one week of passing of this order. However, this order is only for the
return of the Audi car and in no way determines the right of respondent No.
2 to seek maintenance, right of residence commensurate with her stature and
her living lifestyle, from respondent No. 3. She shall be at liberty to initiate
any/all such proceedings for getting a car/maintenance for herself and her
Digitally Signed byAMIT CRL.M.C. 2872/2022 Page 15 of 16
children which if already filed or which may be filed in future, shall be
determined in accordance with law.
23. With these observations, the petition is allowed.
Digitally Signed byAMIT CRL.M.C. 2872/2022 Page 16 of 16
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In a case connected to a matrimonial dispute, the Delhi High Court on Friday directed a woman to return an Audi Car to a private company, while ruling that the corporate veil cannot be permitted to be lifted to hold that even though the vehicle belongs to the company, it is owned by her husband.
The woman had been permitted by a Mahila Court to retain the car last year after she initiated proceedings under Protection of Women from Domestic Violence Act against her husband, who was a 75 percent shareholder in the company and had been given the vehicle for official use.
Setting aside the Mahila Court order permitting her to retain the car, Justice Jasmeet Singh in the judgment clarified, "However, this order is only for the return of the Audi car and in no way determines the right of respondent No. 2 [wife] to seek maintenance, right of residence commensurate with her stature and her living lifestyle, from respondent No. 3 [husband]. She shall be at liberty to initiate any/all such proceedings for getting a car/maintenance for herself and her children which if already filed or which may be filed in future, shall be determined in accordance with law".
The judgment was passed by Justice Singh on a petition filed by Radical Arc Ventures Pvt. Ltd., a company which is engaged in the business of construction and real estate. The company is the registered owner of the vehicle Audi Q7.
The car had been returned by the man to the company at the time of resignation on July 2 last year. However, the woman on July 19 allegedly took the car from the company's possession. A complaint was filed at Sector 49, Noida Police Station regarding theft of the car. There were original title documents of 24 properties of the company's clients in the car at that time.
Subsequently, the company came to know that the car is in possession of the woman and the same is protected by an order of the Mahila Court. On September 15 last year, the MM Court had directed that the Audi car will remain in power and possession of the woman till the matter is heard on merits. An application filed by the company for review of the order was dismissed, saying there exists no power of review under Protection of Women from Domestic Violence Act. The court had also noted that the man resigned from the company only after an order dated July 26, 2021 was passed.
The high court in July had referred the husband and wife to mediation and counsel representing the man had made a statement that the Audi car must be returned by his wife and instead, he would provide a BMW car to her. However, the counsel representing the husband later retracted from the statement.
The counsel representing the company argued before the court that it is suffering at the hands of the couple without any fault. The court was also told that certain original property papers were lying in the car and one person has initiated criminal proceedings against the company in this regard.
However, the counsel representing the woman called it a proxy litigation and told the court that she will return the Audi, if he agrees to provide a BMW car. It was also argued that he resigned from the company only to play mischief with the court and deprive her of the benefits of the MM Court orders.
Justice Singh in the order rejected the argument that the company should have filed an appeal under Section 29 of the Protection of Women from Domestic Violence Act and said the company is neither a respondent nor an aggrieved person in those proceedings.
The court further said the woman under Section 12 of the Domestic Violence Act can only have a grievance only against her husband.
"Section 19 and 22 of the Act entitles the respondent No. 2 [wife] with right of residence as well as relief of compensation and damages against the respondent who has been defined under Section 2(q). The petitioner company does not come within the ambit of the said definition. The lifting of corporate veil and to hold that the Audi car even though belongs to petitioner company but in fact belongs to respondent No. 3 [husband], would not be legally tenable. The company and its shareholders and Directors are separate legal entities," it said.
On the argument that the husband has been fraudulently showing incorrect dates of resignation, the court said the same is irrelevant for the purpose of adjudication as the proceedings in the case cannot be brought within the ambit of the phrase "fraud".
"The act and conduct of the respondent No. 3 [husband] does not come within the said definition of fraud. The respondent No. 3 is entitled to resign as a director from the petitioner company as and when he desires. The law permits him to do so. Once the respondent No. 3 has done a legally permissible act, the same cannot be considered a fraud in any way. Hence, there cannot be a declaration to hold that the said Audi Car belongs not the petitioner company but to the respondent No. 3," it added.
Allowing the petition, the court said the Audi car must be returned to the petitioner company within one week
Title: RADICAL ARC VENTURES PVT LTD versus STATE NCT OF DELHI
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1] Being aggrieved and dissatisfied by the
judgment and award passed by the Commissioner for
Workmen’s Compensation and Judge, Labour Court, Latur
in WCA No.33/2003, the appellants – original claimants
preferred this Appeal for enhancement of amount of
compensation.
Brief facts of the case are as under:
2] On 31st January, 2003, when the deceased
Parmeshwar was driving the vehicle at about 6.00 a.m., at
the relevant time the truck coming from the opposite
direction gave dash to the truck driven by the deceased
Parmeshwar. Due to said accident, he died on the spot.
3] As the accident was occurred during the course
of employment, hence, the claimants filed petition for
claiming the compensation before the Commissioner for
Workmen’s Compensation and Judge, Labour Court, Latur
[for short ‘the trial Court’]. Considering the evidence on
record and after hearing the parties, learned trial Court has
awarded the compensation. Against the said judgment and
order, this appeal.
4] It is the contention of the learned counsel for
the appellants that the trial Court has not properly
considered the income of the deceased. The deceased was
driver. The trial Court has considered the income of the
deceased of Rs.2,000/- per month. In the evidence, it has
come on record that the deceased was getting salary of
Rs.4,000/- per month but this fact was not considered by
the trial Court. The trial Court has awarded 9% interest on
the compensation amount from the date of accident. It
should be 12% interest, hence, requested to allow the
appeal.
5] It is the contention of the learned counsel for
respondent no.2 that the trial Court has passed the
judgment and order on the basis of evidence led before the
trial Court, the trial Court has considered all the aspects. No
evidence was produced before the trial Court to prove that
the deceased was getting Rs.4,000/- per month as salary.
The interest awarded by the trial Court is proper, hence, the
judgment passed by the trial Court is legal and valid.
6] I have heard both learned counsel. Perused the
judgment and order passed by the trial Court. The issue
involved in this appeal is in respect of the income of the
deceased was not properly considered by the trial Court and
rate of interest should be 12%.
Appellant no.1, who is a widow of the deceased,
has examined herself before the Court and deposed that the
deceased was getting Rs.4,000/- per month towards wages
along with separate Bhatta. In cross examination, she
admits that there is no salary certificate in respect of salary
of her husband. The trial Court has observed that appellant
no.1 had not filed any document to show that salary of the
deceased was Rs.4,000/- per month. Her evidence is
hearsay, hence, the trial Court has considered the salary of
deceased Rs.2,000/- per month. In my view, admittedly, the
deceased was driver of the truck vehicle so no question of
salary certificate arise as he was private employee of truck
owner. Generally, the wife knows salary of the husband. It
has come in the evidence of appellant no.1 that her husband
was getting Rs.4,000/- per month including Bhatta; it does
not mean that she was speaking false. The trial Court
should have considered this fact. The trial Court has
considered lesser amount of Rs.2,000/- per month as salary
of the deceased. Appellant no.1 has stated that Rs.4000/-
salary was including Bhatta. Hence, I am considering salary
of the deceased as Rs.3,000/- per month.
ii] The issue in respect of interest awarded by the
trial Court, in my view, Section 4-A of the Employees’
Compensation Act, 1923 is compensation to be paid when
due and penalty for default. Sub-section (3) (a) of the
Employees’ Compensation Act reads as under :
(3) Where any employer is in default in
paying the compensation due under this Act
within one month from the date it fell due, the
Commissioner shall, -
(a) direct that the employer shall, in addition
to the amount of the arrears, pay simple
interest thereon at the rate of twelve per
cent per annum or at such higher rate not
exceeding the maximum of the lending
rates of any scheduled bank as may be
specified by the Central Government, by
notification in the Official Gazette, on the
7] This section specifically states that rate of
interest shall be Rs.12% but the trial Court has erred while
awarding the interest of Rs.9%, hence, I am considering the
rate of interest of 12%.
8] Considering the above, the appellants are
entitled for following amount as compensation:-
Monthly wages : Rs.3000/-
There is no dispute of multiplying factor, hence, 211.79 x
1500 = Rs.3,17,685 + 12% interest. The appellants are
entitled for this amount. The Tribunal has granted
Rs.2,11,790/- + 9% interest.
9] In view of the above, I pass the following
i] Appeal is allowed. The appellants are entitled
for enhanced amount of Rs.1,05,895/- @ Rs.12% interest.
The appellants are entitled to get 12% interest on the
amount of Rs.2,11,790/- from the date of filing of the
application till its realization.
ii] Accordingly, Appeal is disposed of.
Iii] The appellants are permitted to withdraw the
amount.
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The Bombay High Court's Aurangabad bench recently enhanced compensation awarded to a deceased truck driver's kin under the Employees' Compensation Act, 1923 relying on the oral testimony of the wife.Justice SG Dige observed that the labour court wrongly discarded the wife's evidence in the absence of a salary slip in a 19-year-old-case. "The deceased was driver of the truck vehicle so no...
The Bombay High Court's Aurangabad bench recently enhanced compensation awarded to a deceased truck driver's kin under the Employees' Compensation Act, 1923 relying on the oral testimony of the wife.
Justice SG Dige observed that the labour court wrongly discarded the wife's evidence in the absence of a salary slip in a 19-year-old-case.
"The deceased was driver of the truck vehicle so no question of salary certificate arise as he was private employee of truck owner. Generally, the wife knows salary of the husband," the High Court observed.
The court increased the salary consideration from Rs. 2000 to Rs 3000 per month as the wife had claimed her husband was receiving Rs. 4000 inclusive if Bhatta (extra earned on the side.) It therefore enhanced the award from Rs.2,11,790 plus 9% interest to Rs.3,17,685 along with 12% interest.
On 31st January, 2003, when the deceased Parmeshwar was driving his truck at 6.00 am, a truck from the opposite direction collided with his truck, killing him immediately.
The appellants included the driver's parents, wife and two-year-old son. They approached the Commissioner for Workmen's Compensation and Judge, Labour Court, Latur who considered the driver's salary only at Rs 2000 in the absence of documentary proof and used 9% as the interest rate.
In their 2004 appeal the family claiming that the wife's testimony was wrongly discarded and the interest amount was also less than what the statute provided.
The respondent's counsel argued that the trial Court has passed the judgment and order on the basis of evidence led before the trial court, and has considered all the aspects. No evidence was produced before the trial Court to prove that the deceased was getting Rs.4,000 per month as salary.
While the High Court relied on the wife's statement for the salary, it noted that according to Section 4-A of the Employees' Compensation Act, 1923, 12% interest would apply as a penalty to the employer for not clearing the compensation within a month.
The bench disposed off the petition accordingly.
Case Title : Sunita and ors v Sandipan Dyanoba Tathapare and anr
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Hiqh Court of ludic a t u re at A ah a bad
Functioninq of High Court during COVID-l9
ln suppression of all earlier direction / guidelines the Modalities &
Arrangement as per following details will be effective w.e.f. 01.03.2021 -
1. The High Court will function as usual and all the Courts will function
in routine manner.
2. The Hon'ble Judges and their supporting staff (Private Secretary,
Bench Secretary, Peon etc.) will attend the High Court in full
strength.
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Officers, Officials & Staff will attend the High Court in full strength.
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In the premises of the High Court as per arrangement prior to the
5. There shall be no requirement of Urgency Applications for listing of
Listed matters.
6. The defects reported by the Stamp Reporting Sections in fresh
cases shall be cured as per the arrangement which was existing
before 18.03.2020.
7. The Listed matters shall continue to be listed in Additional Cause
List and Daily Cause List shall not be printed i published till further
orde rs.
8. The Photo-Affidavit Centre will start functioning in routine manner
w.e.f.01.03.2021.
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to charge Court Fee through e-mode.
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proceedings. This email has to be lodged with the
later than 1:00 p.M. one working day before the date of hearing.
The e-mail id is:- request_vc_alld@a llahabadhig hcourt.in. It is
clarified that the counsel on record/AcA"/Counsel for the
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individual except with those who are disclosed as representing the
party on the e-flle/petition/application. Not more than two
advocates for a party shall be permitted on the video platform of
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and an application, Counter Affidavit etc. is required to be filed,
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Link of the same is avairabre on the officiar website of Ailrahabad
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33. All the guidelines regarding COVID_19 issued by the Central
Government, Government of Uttar pradesh and the High Court of
Judicature at Alrahabad wiil be fo[owed by ail concerned stricily.
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The Allahabad High Court has decided to function as usual, in a routine manner, from March 1, 2021. As per an order issued under the orders of Chief Justice Govind Mathur, physical hearing of cases will be held in a routine manner from the said date. To facilitate this, all Judges and their supporting staff will attend the High Court in full strength. The following guidelines...
The Allahabad High Court has decided to function as usual, in a routine manner, from March 1, 2021.
As per an order issued under the orders of Chief Justice Govind Mathur, physical hearing of cases will be held in a routine manner from the said date. To facilitate this, all Judges and their supporting staff will attend the High Court in full strength.
The following guidelines for functioning have been issued:
Advocates' Entry
Only those Advocates will be permitted to enter in the High Court through E-Pass, whose case(s) are to be taken by the Court on that day.Gate No. 3, 3A and 5 of the Main Building shall be used for Entry of employees, Advocates & their Clerks.Gate No. 3B and 4 of the Main Building shall be used for Exit of employees, Advocates & their Clerks.Gate No. 9 of the Mediation Centre Building shall be sued for Entry / Exit of employees Advocates & their Clerks.Litigants will not be permitted to enter the High Court premises except those appearing in-person.Not more than 6 (Six) Advocates will be permitted to remain in the Court Room at any given time.
Video conferencing
The High Court has kept the channel of video conferencing open for now.
It is stated that any person desirous of joining Court proceedings through Video Conferencing shall have to send an email indicating his/her mobile number along with case details (parties, Name, Nature of Case, Case Number, Year etc.) and his email id with a request for being provided a Video Conferencing link to enable him to join the Court proceedings.
This email has to be lodged with the High Court not later than 1:00 P.M. one working day before the date of hearing.
The e-mail id is:- [email protected]
Filing
Advocates will file their cases in e-mode or in physical form in the Stamp Reporting Section and the Application Section, at Counters located In the premises of the High Court as per arrangement prior to the Lockdown.There shall be no requirement of Urgency Applications for listing of Listed matters.The defects reported by the Stamp Reporting Sections in fresh cases shall be cured as per the arrangement which was existing before 18.03.2020, i.e. before the pandemic.Listed matters shall continue to be listed in Additional Cause List and Daily Cause List shall not be printed/ published till further orders.Counters will function outside the premises of the High Court to charge Court Fee through e-mode.
Other updates
Photo-Affidavit Centre will start functioning in routine manner from March 1, 2021.Advocates' Chambers in the High court premises will be opened from March 1, 20201.Canteens of the Advocates and the Employees' Canteen situated in the High Court premises function in routine manner.Judges and Lawyers will wear Robes and Coat as prescribed in routine manner.Parking of vehicles to be made as per existing arrangement i.e. outside the premises of the distancing measures.
Read Order
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1. Being aggrieved and dissatisfied with the judgment and
order passed by the Motor Accident Claims Tribunal, Pune (for short
the Tribunal), the Appellant Insurance Company preferred this
On 15th May 2010, Sakharam Gaikwad was riding the
motorcycle bearing No. MH-14/BD-9975 and deceased Ganesh was a
pillion rider on said motorcycle. At the time of incident, Sakharam
was crossing Mumbai-Pune road for going towards Kamshet. At the
relevant time, the Respondent No.1 drove his rickshaw bearing No.
MH-43/C-1989 in rash, excessive and negligent manner and thereby
dashed to the motorcycle. Because of dash, Sakharam and deceased
fell down on road, sustained multiple injuries. Deceased Ganesh
sustained head injury. Ganesh died while taking treatment. The
offence was registered against the Respondent No.1 rickshaw driver.
3. The Claimants filed Claim Petition for getting compensation
before the Tribunal. The Tribunal has passed judgment and order, it is
under challenge. It is contention of learned Counsel for the Appellant
that the Respondent No.1 drove the offending rickshaw outside the
jurisdiction and thereby violated the terms and conditions of the
permit. Therefore, the Appellant is not liable to pay any compensation
to the Claimants.
4. The permit to ply offending rikshaw was for Thane district
only. The incident had happened outside Thane district.
5. The learned Counsel further submits that the Claimant
No.1-wife of deceased Ganesh remarried after the death of Ganesh.
Hence, she is not entitled for the compensation and income of
deceased is considered on higher side. Hence, requested to allow the
6. It is contention of learned Counsel for the Respondent-
Claimants that the offending rickshaw had permit to drive the
rickshaw. No witness is examined by the Appellant to prove that there
was breach of terms and conditions of permit before the Tribunal.
7. The learned Counsel further submits that, when Ganesh
died, at that time, the Claimant No.1 was widow and thereafter she
filed Claim Petition for getting compensation. At the time of death of
her husband, she was 19 years old only. Hence her remarriage cannot
be a ground to deny compensation to her. The learned Counsel
further submits that deceased was getting Rs.10,000/- per month
from doing the welding work and from agricultural land. But the
Tribunal has considered only Rs.5,000/- per month. Hence, requested
to dismiss the Appeal.
8. I have heard both learned Counsel. Perused judgment and
order passed by the Motor Accident Claims Tribunal (for short the
Tribunal). The Tribunal has awarded compensation of
9. While dealing with issue of breach of permit, the Tribunal
has observed that it is settled position that breach of terms and
conditions of policy are quite different than the breach of terms and
conditions of permit issued by the RTO Authority. The permit was
issued for the purpose of plying the rickshaw and giving the service
within the District Thane. However, it does not preclude the
Opponent No.1 to carry the rickshaw out of the jurisdiction of District
Thane. I do not find any infirmity in it. In my view the Appellant’s
have not examined any witness to prove that taking offending
rickshaw outside the jurisdiction of Thane District was breach of
terms of permit, and it amount’s to breach of terms and conditions of
insurance policy. Hence, I do not see merit in the contention of
learned Counsel for appellant that there was breach of terms and
conditions of insurance policy.
10. In respect of, issue of remarriage of Claimant No.1, in my
view, it appears from record that at the time of death of her husband,
she was 19 years old. Thereafter, she filed a Claim Petition for getting
compensation, during pendency of the Claim petition she re-married.
One cannot expect that for getting compensation of deceased
husband, the widow has to remain widow for life time or till getting
compensation. Considering her age, and at the time of accident, she
was wife of deceased, is sufficient ground that she is entitled for the
compensation. Moreover after death of husband remarriage can not
be a taboo to get a compensation.
Section 166 of Motor Vehicles Act states about who can file
Application for Compensation.
“Section 166. - Application for Compensation – 1) An application for
compensation arising out of an accident of the nature specified in
sub-section (1) of section 165 may be made -
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the
legal representatives of the deceased; or ------”
This section provides that by all or any legal representative
of deceased can file application for compensation. The Claimant No. 1
was wife of deceased at the time of accident being legal representative
she filed application for compensation, which is legal.
11. In respect of income of deceased, it has come on record that
the deceased was doing fabrication work and he was also getting
income from agricultural field, and he was getting income at
Rs.10,000/- per month. Considering the evidence on record, the
Tribunal has considered Rs.5,000/-per month as monthly income of
deceased. I do not find any infirmity in it. In my view, no evidence
was produced on record in respect income from fabrication work. The
income from agricultural work can be considered as supervisory
income. Hence, notional income considered by the Tribunal is proper.
12. It is contention of learned Counsel for the
Respondents/Claimants that the Tribunal has not awarded
consortium amount, amount for funeral expenses and loss of estate.
13. It is contention of learned Counsel for the Appellant that
the Claimants have not preferred Appeal for enhancement of
compensation. They are not entitled for any enhancement without
any Appeal. In my view Section 168 of Motor Vehicles Act states
about just compensation. The consortium amount is being awarded
to the legal heirs of deceased on the basis of parental consortium,
spousal consortium and filial consortium. The Claimants are entitled
for consortium amount. Hence, I am considering the consortium
amount. As per the view of Hon’ble Apex Court in the case of Magma
General Insurance Co. Ltd V/s. Nanu Ram1, each Claimant is entitled
Rs.40,000/- as consortium amount. There are three Claimants. So
they are entitled for Rs.1,20,000/- as consortium and Rs.15,000/- for
funeral expenses and Rs.15,000/- for loss of estate. Total comes to
14. The Tribunal has awarded amount of Rs.70,000/- for
funeral expenses, loss of love and affection and consortium. If this
amount is deducted from amount considered by this Court, it comes
to Rs.80,000/-. The Claimants are entitled for Rs.80,000/-.
15. In view of above, I pass following order.
i. Appeal is dismissed. No order as to costs.
ii. The Claimants are entitled for Rs.80,000/- as additional
amount @ 7.5% per annum from 1 October 2017 till
realization of the amount.
iii. The Appellant is directed to deposit the additional amount
along with accrued interest thereon within four weeks, after
iv. The Claimants are permitted to withdraw the additional
amount along with accrued interest thereon.
v. The statutory amount be transmitted to the Tribunal.
Parties are at liberty to withdraw it as per rule.
vi. All pending Civil Applications, if any, are disposed of.
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The Bombay High Court recently held that remarriage will not disentitle the widow of a deceased in a motor accident from receiving compensation.
Justice SG Dige observed that remarriage cannot be a taboo against motor accident compensation –
“One cannot expect that for getting compensation of deceased husband, the widow has to remain widow for life time or till getting compensation. Considering her age, and at the time of accident, she was wife of deceased, is sufficient ground that she is entitled for the compensation. Moreover after death of husband remarriage can not be a taboo to get a compensation.”
The court dismissed an insurance company’s plea against award of compensation to widow of deceased in a motor accident who later remarried.
The deceased was a pillion rider on the motorcycle of one Sakharam Gaikwad. They were riding towards on the Mumbai-Pune Highway when an auto rickshaw crashed into the bike injuring both riders.
The deceased died while receiving treatment. The Motor Accident Claims Tribunal awarded compensation to his wife and two family members. Therefore, the insurance company approached the High Court against the tribunal’s judgement.
The insurance company contended that the widow of the deceased is not entitled to compensation as she remarried after his death. It also contended that the permit to ply the offending rickshaw was only for Thane District but the incident happened outside Thane. Therefore, the driver violated the terms and conditions of the permit.
The court said that there is a difference between breach of terms of insurance policy and breach of terms of permit issued by RTO authority. The court added that though the permit to ply was for Thane District, it does not preclude the driver to take the rickshaw outside Thane District. The court noted that the insurance company did not examine any witness to prove that taking the rickshaw outside Thane District was breach of permit and that it amounts to breach of terms policy
The court further noted that at the time of accident, the wife of the deceased was only 19 years old. She remarried during the pendency of the claim petition.
The court said that a widow cannot be expected to remain a widow for life or till getting compensation.
The court noted that all or any legal representative of the deceased can seek compensation as per section 166 of the Motor Vehicles Act. Thus, it was legal for the wife of the deceased to file an application for compensation as she was his legal representative at the time of the accident, the court said.
The court held that all three claimants are entitled to Rs. 40,000/- each as consortium amount, Rs 15,000/- compensation for funeral expenses and Rs 15,000 for loss of estate.
The tribunal had awarded Rs. 70,000/- for funeral expenses, loss of love and affection, and consortium. Therefore, the court awarded an additional Rs 80,000/- to the claimants.
Case no. – First Appeal No. 111 of 2019
Case Title – The Iffco Tokio General Insurance Company Ltd. v. Bhagyashri Ganesh Gaikwad
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3. The State of Maharashtra Respondents
Mr. Suresh Shetye with Ms. Khushboo Pathak i/by Mr. Prem
Kumar Pandey, Advocate for the Applicant.
Mr. Vinod D. Gangwal, Advocate for respondent Nos. 1 and 2.
Mr. S. R. Agarkar, APP for the Respondent – State.
Digitally signed
1. The applicant is aggrieved by order dated 26.06.2015
passed by Additional Sessions & District Judge-3, Thane in
Criminal Revision Application No.134 of 2015.
2. The applicant is the original complainant in S.C.C.
No.7963 of 2015 pending before the Court of 4th Joint
Judicial Magistrate, First Class, Vashi at CBD Belapur, Navi
Mumbai. The complaint was fled alleging ofence
punishable under Section 138 of Negotiable Instruments
Act. The learned Magistrate issued process. The respondent
No.1 and 2 challenged order of process by preferring
revision application before the Sessions Court. The learned
Sessions Judge vide order dated 26.06.2015 allowed the
revision application and set aside the order issuing process
dated 09.04.2015 passed by learned JMFC, Vashi, Navi
3. The case of the complainant is that the accused No.1
is partnership frm and accused No.2 and 3 are partners of
accused No.1. In February 2014, accused No.2 and 3
approached complainant for fnancial help and sought
friendly loan of Rs. 12,00,000/-. The complainant
transferred Rs.7,50,000/- to accused by RTGS on
22.02.2014 and sum of Rs.4,50,000/- was paid in cash to
accused on 22.02.2014. The accused executed MOU
admitting receipt of Rs.12,00,000/- and undertook to repay
the loan on or before 30.08.2014. The accused issued fve
cheques bearing Nos. 068172, 068173, 068166, 068170
and068168 in favour of complainant. The complainant
presented the cheques which were dishonoured for the
reason “Alteration”. The complainant suspected that the
accused have deliberately made mistake while writing
name of complainant on the cheque. The accused issued
fresh cheque dated 11.03.2015 for Rs.11,50,000/-. The
accused issued notice dated 02.03.2015 by which the
accused admitted the loan transaction and liabilities of
Rs.5,50,000/-. The accused however, made false claim in
the notice stating that cheques were issued by way of
security. Cheque were presented by the complainant which
was returned with remark “Payment stopped by the
drawer”. The demand notice dated 17.03.2015 was sent to
the accused. The complaint was fled before the Court of 4 th
Joint Judicial Magistrate First Class, Vashi at CBD Belapur,
4. Learned Magistrate issued process for ofence under
Section 138 of Negotiable Instruments Act vide order dated
5. The applicant challenged the order of process before
the Sessions Court by preferring revision application which
has been allowed by the Sessions Court hence,
applicant/complainant has preferred this revision
6. Learned advocate for the applicant submitted that the
impugned order passed by learned Sessions Judge is
contrary to law. Prima facie, case was made out against the
accused and the learned Magistrate after recording
verifcation statement and considering the document on
record issued process against the accused. Cheques were
dishonoured. Demand notice was sent to the accused. All
procedural safeguards were complied. Order of process
could not be set aside in Revisional Jurisdiciton. Learned
Sessions Judge has considered defence of the accused.
While deciding the revision application, the learned
Sessions Judge failed to consider the presumption under
Section 139 of Negotiable Instruments Act which has
required to be rebutted during trial. Learned Sessions Judge
has committed an error in observing that the MOU
suggested payment of interest by the accused. The
respondent No.1 and 2 has replaced the earlier cheques
which shows the admission of liabilities. The learned
Sessions Judge has committed an error in holding that the
cheques were given by way of security and thus out of
purview of Negotiable Instruments Act the accused had
admitted the execution of cheques giving rise to statutory
presumption under Section 118 and 139 of Negotiable
Instrument Act. The order passed by learned Sessions Judge
is required to be set aside. opportunity is required to be
given to the complainant to prove its case by adducing
evidence. The learned Sessions Judge however, set aside
the order of process on erroneous fnding.
7. Learned advocate for the applicant has relied upon
following decisions:-
Son Gaurav Singh Vs. State of Jharkhand and
State of Gujarat and Others2.
(c) Mundalik Jewellers, Aurangabad and another
Vs. Bhilaji s/o Ganpat Patil3.
(g) K. sitaram And Another Vs. CFL Capital
Financial Service Limited and Another7.
Krishnajirao Dessai and Another .8
8. Learned advocate for respondent No.1 and 2
submitted that there is no illegality in the impugned order.
Continuation of proceedings against the respondent would
be abuse of process of law. The Sessions Judge was
empowered to entertain the revision application and set
aside the order issuing process. Learned Sessions Judge has
rightly taken into consideration the undisputed document
on record and set aside the order of process. It was rightly
held that in cases of money lending business without the
license, the proceedings was not maintainable in law. The
Court has observed that the transaction was loan
transaction without license post dated cheques were given
for security of the loan. Money lending without licence is
cognizable ofence. The respondents had lodged complaints
against the applicant. The order issuing process was
passed mechanically. It would not be possible to enforce
any agreement. The object of which is unlawful within
meaning of section 23 of Contract Act.
9. Learned advocate for respondents has relied upon the
following decisions :-
Khavnekar and Ors.10.
(b) Smt. Nanda W/o Dharam Nandanwar represented
through PAO Dharam S/o Kisandas Nandanwar
Vs. Nandkishor s/o Talakram Thaokar11.
(d) K. K. Sidharthan Vs. T. P. Praveena Chandran and
(e) Rajendra Kumar Sitaram Pande Vs. Uttam and
10. I have perused the order dated 26.06.2015 which is
impugned in this proceedings. The learned Sessions Judge
while allowing the revision application preferred by
respondent Nos. 1 and 2 has observed that the contract
which is forbidden by law is void contract. In cases of
money lending business without license, the provisions
under Section 138 of Negotiable Instruments Act are not
attracted. According to the complainant huge amount of Rs.
4,50,000/- was parted to the accused. There was a
Memorandum Of Understanding (for short “MOU”) dated
22.02.2014 between M/s. Monika Sumit Ujjain as the lender
and M/s. Saga Infra as the borrowers. As per MOU it can be
gathered that the transactions was without license. Post
dated cheques were given by way of security. I have
perused the MOU and the other documents on record
considering the factual matrix of this case I do not fnd any
reason to interfere with the impugned order, Hence I pass
the following order:-
(i) Criminal Revision Application stands rejected and
disposed of.
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The Bombay High Court recently rejected a criminal revision application in a complaint under the Negotiable Instruments Act observing that section 138 cannot be attracted if the cheque is given as security for a loan from a unlicensed money lender. "In cases of money lending business without license, the provisions under Section 138 of Negotiable Instruments Act are not...
The Bombay High Court recently rejected a criminal revision application in a complaint under the Negotiable Instruments Act observing that section 138 cannot be attracted if the cheque is given as security for a loan from a unlicensed money lender.
"In cases of money lending business without license, the provisions under Section 138 of Negotiable Instruments Act are not attracted", Justice Prakash Naik observed in his order.
It was the applicant's case that in February 2014, she gave a loan of Rs 12 lakhs to the accused persons. The accused executed a Memorandum of Understanding admitting receipt of the money and undertook to repay the loan on or before August 30, 2014. The accused issued five cheques to the applicant which were dishonoured for the reason of "alteration". The accused then issued a fresh cheque for Rs 11.5 lakhs. The accused issued a notice on March 2, 2015 admitting loan and liabilities of Rs 5.5 lakhs. However, the accused claimed in the notice that the cheques were issued as security for the loan.
The applicant filed a complaint before the Joint Judicial Magistrate First Class (JJMFC) under section 138 of Negotiable Instruments Act. The JJMFC issued process in the case. The accused persons challenged the order of process in a revision application before the sessions court. The sessions court allowed the revision application. Hence, the applicant approached the High Court.
Advocate Suresh Shetye for the applicant submitted that the prima facie, a case was made out against accused and the JJMFC issued process after verification of the statement and considering documents on record. The applicant fulfilled all procedural requirements such as issue of demand notice before filing the complaint. Order of process could not be set aside under revisional jurisdiction. The sessions court did not consider the presumption under section 139 of the NI Act which is required to be rebutted during trial. Further, the complainant should have the opportunity to prove the case by adducing evidence.
Advocate Vinod Gangwal for the respondents argued that continuation of proceedings against the respondent would be abuse of law as the sessions court was empowered to entertain the revision application and set aside the order issuing process. He said that the Sessions judge rightly considered the undisputed document on record. He relied on sessions court's observation that the post-dated cheques were given as security for the loan. It was correctly held by the sessions judge that proceedings were not maintainable in cases of money lending business without licence. Therefore, the loan agreement cannot be enforced as it has an unlawful object, he argued.
The court perused the order of the sessions judge and stated that section 138 of NI Act is not attracted in cases of money lending business without licence. The court, from the MoU between the parties, gathered that the transaction was without licence and the post-dated cheques were given as security. Therefore, the court did not find any reason to interfere with the order and rejected the criminal revision application.
Case no. – Criminal Revision Application No. 394 of 2015
Case title –Monic Sunit Ujjain v. Sanchu M. Menon and Ors.
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The instant revision petition has been preferred under Article
227 of the Constitution of India, for setting aside of order dated 09th March,
2022 (Annexure P-3), passed by Addl. Civil Judge (Sr. Divn.), Chandigarh,
vide which, application filed under Order 7 Rule 11 of the Code of Civil
Procedure (hereafter called as 'Code') for rejection of plaint in a summary
suit, by the respondent-defendant, was allowed.
It would be apposite to give a brief sequence of events leading
to the filing of the instant revision petition by the petitioners, who are
plaintiffs before the Court below. Parties hereinafter shall be referred to by
their original positions before the Court below.
Plaintiffs, who are practicing Advocates, filed a summary suit
under Order XXXVII of Code for grant of a decree for recovery of
Rs.49,66,510/- (i.e. Rs. 10,11,900/- towards plaintiff No.1 and Rs.
39,54,610/- towards plaintiff No.2) along with interest pendente lite @ 12%
p.a., during the pendency of the suit and future interest @ 12% p.a. till its
actual realization, along with costs and legal fee dues from the defendant for
various cases contested on its behalf. It has been pleaded that notice in the
aforementioned suit filed by the plaintiffs/petitioners was issued to the
defendant/respondent on 26.09.2019. Summons were served upon the
defendant on 23.10.2019, however, the defendant failed to put in
appearance in the Court within the stipulated 10 days, as envisaged under
Order XXXVII Rule 3(1) of Code. Thereafter, statutory summons for
judgment under Order XXXVII Rule 3(4) of Code were served upon the
defendant on 03.01.2020. Application for leave to defend was required to
be filed by the defendants within 10 days as per the provisions of Order
XXXVII Rule 3(5) of Code, however, they failed to file any application for
leave to defend within the statutory period of 10 days. Instead, they filed an
application under Order 7 Rule 11 of Code on 23.12.2021, seeking rejection
of the plaint on the ground that the suit did not fall within the ambit of
summary suit as contemplated under Order XXXVII Rule 1 (2) of Code.
The said application was allowed vide impugned order dated 09.03.2022
and the plaint rejected. Hence, the instant revision petition.
At the outset, a pointed query was put to the learned senior
counsel for the petitioners qua the maintainability of the instant revision
petition since a statutory remedy of appeal against the order of rejection of
plaint is provided for and was available to him. On the query put, learned
senior counsel submitted that the trial Court had on the face of it committed
grave illegality while passing the impugned order. He submitted that
statutory summons for judgment was served upon the defendant on
03.01.2020, as per Order XXXVII Rule 3(4) of Code and hence, the
defendant/respondent was required to file an application for leave to defend
within 10 days i.e. by 13th January, 2020, as provided for under Order
XXXVII Rule 3(5) of Code. However, the defendant failed to file an
application for leave to defend within the statutory period of 10 days and
hence, on this ground alone, the suit was liable to be decreed forthwith as
per the provisions of Order XXXVII Rule 3(6)(a) of Code. Therefore, the
trial Court fell in error while failing to exercise its jurisdiction in not
passing a decree immediately on the lapse of 10 days.
Learned senior counsel for the petitioners further contended
that application under Order 7 Rule 11 of Code was not maintainable in a
suit filed under Order XXXVII of Code. He submitted that Order XXXVII
of Code was a complete code in itself and thus, the procedure provided
therein could not be deviated from and had to be strictly complied with.
After putting in appearance, the defendant has to file an application for
leave to defend and on doing so, only thereafter he could be permitted to
raise all the defenses be available to him and permissible under law. It was
thus argued by the learned senior counsel that an application under Order 7
Rule 11 of Code, was not maintainable in a summary suit and the trial Court
had clearly gone beyond its jurisdiction by entertaining the application filed
under Order 7 Rule 11 of Code by the defendant.
Learned senor counsel for the petitioners vehemently argued
that the supervisory jurisdiction of this Court under Article 227 of the
Constitution of India, was extensive and it could be exercised to check and
correct any patent error or illegality committed by a subordinate Court. He
thus submitted that in the aforementioned circumstances, since the trial
Court had not complied with the mandatory procedure envisaged under
Order XXXVII of Code and still further illegally adjudicated upon an
application under Order 7 Rule 11 of Code, the instant revision petition
under Article 227 of the Constitution of India, would be maintainable. In
support of his submissions, learned counsel has placed reliance upon Surya
Dev Rai Vs. Ram Chander Rai and others, (2003) 6 SCC 675, Calcutta
and another, (1961) 2 SCR 241, Hirday Narain Vs. Income Tax Officer,
Bareilly, 1970(2) SCC 355, Harbanslal Sahnia andanother Vs. Indian Oil
Corpn. Ltd. and others and various other judgments of High Courts and the
Per contra, learned counsel for the respondent/defendant while
opposing the submissions made by the counsel opposite, prayed for
dismissal of the instant petition on the ground of maintainability by urging
that the supervisory jurisdiction under Article 227 of the Constitution of
India, could not be invoked by the petitioner without first availing of his
alternative remedy of appeal. He submitted that since the rejection of plaint
is a deemed decree, the petitioner could not have approached this Court
under Article 227 of the Constitution of India and could have challenged the
impugned order only by way of an appeal. In support of his contentions,
learned counsel placed upon Sayyed Ayaj Ali Vs. Prakash G. Goyal and
Vithal Kamat and others : 2021(3) RCR (Civil) 768 and Ramal Adwani
Vs. Vashulal M.Talreja and another (Bomby HC) : Writ Petition (Civil)
No.13427 of 2018.
I have heard learned counsel for the parties and have perused
the relevant material on record.
The foremost question, which requires to be dealt with by this
Court, is whether the instant petition under Article 227 of the Constitution
of India, is maintainable or not. Before proceeding further, it would be
apposite to reproduce Section 2(2) of Code:-
“(2) "decree" means the formal expression of an adjudication
which, so far as regards the Court expressing it, conclusively
determines the rights of the parties with regard to all or any of
the matters in controversy in the suit and may be either
preliminary or final. It shall be deemed to include the rejection
of a plaint and the determination of any question within
section 144, but shall not include
(a) any adjudication from which an appeal lies as an appeal
(b) any order of dismissal for default.
Explanation. A decree is preliminary when further proceedings
have to be taken before the suit can be completely disposed of.
It is final when such adjudication completely disposes of the
suit. It may be partly preliminary and partly final;”
By decree, it is implied that it is a formal expression of an
adjudication by a Court of law, wherein, the rights of the parties are
conclusively determined with regard to all or any of the matters in
controversy in a suit. Further, the term ‘decree’ would include within its
ambit an order of rejection of plaint under Order 7 Rule 11 of Code, as
would be evident from the expression “shall be deemed to include the
rejection of plaint” appearing in Section 2(2) of Code. A statutory remedy
of appeal has been provided under Section 96 of Code against a decree,
therefore, even an order of rejection of plaint under Order 7 Rule 11 of
Code would be amenable to the remedy of appeal.
In the circumstances, when there does exist a statutory remedy
of appeal against the impugned order, this Court does not deem it
appropriate to entertain the instant petition under Article 227 of the
Constitution of India. It would be relevant to reproduce the observations of
the Hon’ble Supreme Court in Virudhunagar Hindu Nadargal Dharma
Paribalana Sabai and Ors. Vs. Tuticorin Educational Society and Ors.,
(2019)9 SCC 538, which are as under:-
“11. Secondly, the High Court ought to have seen that when a
remedy of appeal under section 104 (1)(i) read with Order XLIII,
Rule 1 (r) of the Code of Civil Procedure, 1908, was directly
available, the respondents 1 and 2 ought to have taken recourse to
the same. It is true that the availability of a remedy of appeal may
not always be a bar for the exercise of supervisory jurisdiction of the
Venkatasubhiah Naidu v. S. Chellappan, (2000) 7 SCC 695], this
Court held that “though no hurdle can be put against the exercise of
the Constitutional powers of the High Court, it is a well recognized
principle which gained judicial recognition that the High Court
should direct the party to avail himself of such remedies before he
resorts to a Constitutional remedy”.
12. But courts should always bear in mind a distinction between
(i) cases where such alternative remedy is available before Civil
Courts in terms of the provisions of Code of Civil procedure and (ii)
cases where such alternative remedy is available under special
enactments and/or statutory rules and the fora provided therein
happen to be quasi judicial authorities and tribunals. In respect of
cases falling under the first category, which may involve suits and
other proceedings before civil courts, the availability of an appellate
remedy in terms of the provisions of CPC, may have to be construed
as a near total bar. Otherwise, there is a danger that someone may
challenge in a revision under Article 227, even a decree passed in a
suit, on the same grounds on which the respondents 1 and 2 invoked
the jurisdiction of the High court. This is why, a 3 member Bench of
this court, while overruling the decision in Surya Dev Rai vs. Ram
Chander Rai [Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC
675], pointed out in Radhey Shyam Vs. Chhabi Nath [Radhey
Shyam v. Chhabi Nath, (2015) 5 SCC 423 : (2015) 3 SCC 67] that
“orders of civil court stand on different footing from the orders of
authorities or Tribunals or courts other than judicial/civil courts.
13. Therefore wherever the proceedings are under the code of
Civil Procedure and the forum is the Civil Court, the availability of
a remedy under the CPC, will deter the High Court, not merely as
a measure of self imposed restriction, but as a matter of discipline
and prudence, from exercising its power of superintendence under
the Constitution. Hence, the High Court ought not to have
entertained the revision under Article 227 especially in a case
where a specific remedy of appeal is provided under the Code of
Civil Procedure itself.”
The order dated 09.03.2022 amounts to a decree as
contemplated under Section 2(2) of the Code and the aggrieved party has a
remedy of appeal under Section 96 of the Code. That being the position, this
Court would loathe to interfere in the matter in exercise of its jurisdiction
under Article 227 of the Constitution of India.
As a sequel to the above, no case for interference by this court
is made out. The revision petition is thus dismissed.
Whether speaking/reasoned: Yes/No
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Punjab and Haryana High Court recently dismissed a revision petition for setting aside order of the Addl. Civil Judge (Sr. Divn.), Chandigarh, vide which, application under Order 7 Rule 11 of the Code of Civil Procedure for rejection of plaint in a summary suit was allowed. The bench comprising Justice Manjari Nehru Kaul held that in circumstances, when there already exists a...
Punjab and Haryana High Court recently dismissed a revision petition for setting aside order of the Addl. Civil Judge (Sr. Divn.), Chandigarh, vide which, application under Order 7 Rule 11 of the Code of Civil Procedure for rejection of plaint in a summary suit was allowed.
The bench comprising Justice Manjari Nehru Kaul held that in circumstances, when there already exists a statutory remedy of appeal against the impugned order, it is not appropriate to entertain the instant petition under Article 227 of the Constitution of India.
The court was dealing with a matter where a summary suit for grant of a decree for recovery of a certain sum of money was instituted by the Plaintiffs. Thereafter, the defendants filed an application seeking rejection of the plaint on the ground that the suit did not fall within the ambit of summary suit. The said application was allowed and plaint was rejected hence, the instant revision petition was filed.
The court considered rival submission of the parties and held that a statutory remedy of appeal is already provided under Section 96 of CPC against a decree and even an order of rejection of plaint is amenable to this remedy of appeal.
The court further observed that a decree is a formal expression of adjudication by Court of law, wherein, the rights of the parties are conclusively determined with regard to all or any of the matters in controversy in a suit. Further, the court noted, 'decree' includes an order of rejection of plaint under Order 7 Rule 11 of CPC.
By decree, it is implied that it is a formal expression of an adjudication by a Court of law, wherein, the rights of the parties are conclusively determined with regard to all or any of the matters in controversy in a suit. Further, the term 'decree' would include within its ambit an order of rejection of plaint under Order 7 Rule 11 of Code, as would be evident from the expression "shall be deemed to include the rejection of plaint" appearing in Section 2(2) of Code.
Accordingly, the court concluded that the impugned order by the Addl. Civil Judge (Sr. Divn.), Chandigarh amounts to a decree as contemplated under Section 2(2) of the Code of Civil Procedure. Therefore, the plaintiff has a remedy of appeal under Section 96 of the Code.
The revision petition was thus dismissed.
Case Title: Nimrata Shergill and another Versus Shop Owners Welfare Association
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1. I have heard learned Advocate Shri.Hrishikesh Chavan for the
Applicant and learned APP Shri.N.B.Patil for the Respondent-State on
more than one occasion.
2. He has moved this Application on behalf of the Applicant on the
basis of the scheme titled as ‘Release_UTRC@75’ framed by National
Legal Services Authority. There are various categories. He placed reliance
on Category No.16 which says ‘Those undertrials who are above 65 years
of age’.
3. He has taken me through various categories as per the scheme.
Broadly, the categories can be divided into two divisions. One is the
persons who are convicted and who are languishing in jail and second is
those who are waiting for the turn for the trial. Amongst the undertrial
prisoners, there are various categories depending upon the nature of
offence, type of punishment, medical health, gender, age group. There are
certain categories which nowhere says about the nature of offence or
period of their detention as an undertrial prisoner. The present category is
one of such category which only mentions about the age of undertrial
4. Learned Advocate vehemently submitted that the present Applicant
is above 65 years of age and he is of 71 years age and he fits in that
category. According to him, his Bail Application was rejected by the
Sessions Court and now, this Application is moved in view of the decision
of the High Court Legal Services Committee. According to him, while
deciding such request, if merits of the matter are considered, then it will
defeat the purpose of that scheme. Whereas, according to learned APP,
the merits of the matter need to be considered and if they are not
considered, then many undertrial prisoners will be released on bail
irrespective of merits of the matter.
5. I have perused the order passed by the Sessions Court. In Para No.4,
he has discussed about the allegations against the present Applicant and
the offence is of Section 302 and there was an attempt to kill four
witnesses. The learned Additional Sessions Judge rejected the Application
considering the above said merits.
6. Prior to passing the order, this Court tried to seek some clarification
from the learned Member/Secretary – MSLSA in respect of clarification if
any about the scheme. Though, learned Member/Secretary made certain
correspondence, he could not place on record any clarification except
giving the statistics of how many applications have been received by them
and the steps taken by them.
7. The purpose of launching of the scheme is mentioned in the scheme
itself. Considering the high proportion of undertrial prisoners, in
continuation of the earlier measures taken by the NALSA, this scheme was
framed. There were several directions from the Hon’ble Supreme Court
given in this behalf and they are referred in the scheme itself. We can
gather the intention for framing of the scheme. The District and Sessions
Judge is given certain responsibilities so also the Under Trial Review
Committees has been given certain responsibility. As per that mechanism,
the Authorities were supposed to take steps for release of the prisoners.
8. There are two aspects. One is moving the concerned Court for
releasing on bail and other is passing an order of bail on their request. It is
true that it is the discretion of the concerned Court ; whether to grant bail
or not. Such discretion cannot be taken away by any act. So, we gather is
that by framing of such scheme, the attention of the concerned stake
holders is brought to the effect that in your district, there are certain
prisoners who are languishing in jail for so many years. So, the attention
of the stake holders is brought. One can say that the Authorities of DLSA
and MSLSA were successful in bringing into the notice of this Court about
the case of the Applicant. However, when the trial Court as well as this
Court has considered the merits, the Applicant cannot secure bail
considering the merits of the matter. So, I am not inclined to grant bail.
9. However, the issue cannot be left at this stage. Certainly, there is an
occasion for the trial Court to issue certain directions. It is submitted that
the trial has already started. In view of that, following order is passed :-
(i) Application is rejected.
(ii) The trial Court seized of the matter is directed to
expedite the trial and complete it as early as possible.
(iii) The trial Court also to consider the fact that the case
before him involves a prisoner more than 65 years of age
and for their early release, the scheme is framed.
10. With these directions, the Application is disposed of.
11. Office is directed to pay the fees to learned Advocate for the
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The Bombay High Court held that the NALSA’s scheme for release of undertrial prisoners is meant to bring the attention of the stakeholders i.e., courts, to the undertrial persons languishing in jail, but it cannot override the court’s discretion to grant or refuse bail to such prisoners on merits.
Justice S. M. Modak, while denying bail to a murder accused, observed that nothing can take away the discretion of the court in grant of bail.
“It is true that it is the discretion of the concerned Court ; whether to grant bail or not. Such discretion cannot be taken away by any act. So, we gather is that by framing of such scheme, the attention of the concerned stake holders is brought to the effect that in your district, there are certain prisoners who are languishing in jail for so many years.”
Under the scheme titled [email protected] framed by the national legal services authority (NALSA), the Under-Trial Review Committee (UTRC) is supposed to identify prisoners under the categories provided in the scheme and recommend release for fit cases. NALSA, along with State and District Legal Services Authorities aims to urgently file bail applications for all prisoners recommended for release by the UTRC.
The accused, booked under section 302 (punishment for murder) of IPC sought bail under Category 16 of the [email protected] scheme - under trials above 65 years of age. In this category, there is no mention of the nature of offence or the period of detention of the accused as an under-trial prisoner.
The accused was of 71 years of age and fit the category. His bail application was rejected by the Sessions Court.
Advocate Hrishikesh R. Chavan argued that if merits of the matters are considered then it will defeat the purpose of the scheme.
APP N. B. Patil for the State contended that the merits of the matter need to be considered otherwise many undertrial prisoners will be released on bail irrespective of merits.
The court noted that there was also an attempt to kill four witnesses by the accused and hence the Sessions Court rejected his bail application.
The court noted that the scheme was framed considering the high proportional of undertrial prisoners. Under the scheme the authorities were supposed to take steps for release of the undertrial prisoners.
However, when the trial court as well as HC has considered the merits, the accused cannot secure bail, the court held.
“One can say that the Authorities of DLSA and MSLSA were successful in bringing into the notice of this Court about the case of the Applicant. However, when the trial Court as well as this Court has considered the merits, the Applicant cannot secure bail considering the merits of the matter”, the court held.
The court noted that the trial has already started. Hence, it directed the trial court to consider the fact that the accused is more than 65 years of age and the scheme was framed for the release of undertrial prisoners above 65 years of age.
Case no. – Criminal Bail Application No. 2777 of 2022
Case title – Mahipati Antu Jadhav v. State of Maharashtra
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1. The instant petition under Section 34 of the Arbitration &
Conciliation Act, 1996 (hereinafter referred to as the „Arbitration Act‟)
raises some important questions of law inter alia pertaining to the
interpretation of Section 21 of the Arbitration Act. By way of the instant
petition, the Petitioner seeks indulgence of this Court to set aside the
impugned arbitral award dated 16th March 2015 passed by the learned
sole arbitrator, Mr. Divya Darshan Sharma in the case titled as „CL
Educate Ltd. vs. Monika Oli‘.
2. The facts necessary for the disposal of the present petition are that
an Employment Agreement was entered into between the Petitioner and
M/s Comprehensive Education and IT Training Institute (hereinafter
referred to as „CEITI‟), a Dubai based entity which was authorized to run
Career Launcher test-prep courses in the United Arab Emirates
(hereinafter referred to as „UAE’). M/s CL Educate Ltd. (hereinafter
referred to as the „Respondent’), is a company registered under the
Companies Act, 1956. By way of the Employment Agreement, the
Petitioner was appointed as the Principal Consultant for its Dubai office
and she was entrusted with the responsibility for enrollment and
collection of fees from students for the test-prep courses in Dubai. She
was also required to bear the costs in relation to rent, marketing and sales,
course material, salary for faculty, among other things.
3. For the 1st year, as per Clause 2 of the Employment Agreement,
the Petitioner was entitled to 75% of the net collections arising out of
IITJEE, AIEEE, CBSE XII Program, IIT Foundation IX and X, and 85%
of the net collections for all other programs. It was also agreed by the
parties that the collections made by the Petitioner would be deposited in
Career Launcher‟s account and on a monthly basis, the Petitioner‟s share
would be transferred to her account. From the next year onwards, it was
agreed between the parties that the percentage of net collections falling to
the share of the Petitioner would be mutually discussed. It was further
stipulated that from the 2nd year, all collections would accrue to the
Petitioner as her top-line and only remit either 25%/15% (depending on
the product) to Career Launcher.
4. On 6th November 2013, the Petitioner received a legal notice on
behalf of the Respondent seeking payment of various amounts, including
AED 6,25,775/- on account of alleged short deposit of fee collected by
the Petitioner and AED 13,92,000/- on account of fee allegedly collected
by the Petitioner against the installment due on 31st January 2013 which
was not deposited in the account of the Respondent. On 16th November
2013, the Petitioner responded to the above legal notice dated 6th
November 2013, denying the claims of the Respondent and alleging that
the Respondent has issued the legal notice in order to set up a false case
against the Petitioner as she had on previous occasion raised requests
with the Respondent to settle the accounts between the parties.
5. The Respondent invoked Clause 10 which contained the
arbitration clause and provided that any dispute arising between the
parties would be referred to a sole arbitrator appointed by the Managing
Director of Career Launcher India Ltd., having its jurisdiction/place at
New Delhi. A sole arbitrator was appointed and the Petitioner was
proceeded ex parte. The arbitral tribunal passed the impugned arbitral
award by which the claims raised by the Respondent were allowed
against the Petitioner.
6. Aggrieved with the passing of the impugned arbitral award, the
Petitioner has approached this Court under Section 34 of the Arbitration
(on behalf of the petitioner)
7. Mr. Jayant Mehta, learned senior counsel appearing on behalf of
petitioner, in support of the instant petition has strenuously argued that
the impugned arbitral award is wholly illegal as the Petitioner has never
received the mandatory notice under Section 21 of the Arbitration Act by
which the arbitration proceedings are to be commenced. It is further
submitted that the Petitioner has never received any communication
whatsoever inter alia stating the name or the information qua the
appointment of the Arbitrator, to adjudicate the dispute which has arisen
between the parties.
8. Mr. Mehta, learned senior counsel appearing on behalf of petitioner
submitted that though the Arbitrator has given his consent vide notice
dated 10th March 2014 and directed the parties to appear before him on
2nd May 2014, but the Petitioner has never received any communication
indicating the consent from the Arbitrator. It is further submitted that the
Petitioner also never received any communication directing her to appear
on 2nd May 2014. It is also argued that the Petitioner did not receive any
communication whatsoever from the arbitrator notifying the first hearing
of the arbitration. It is vehemently submitted that the Petitioner has for
the very first time received an email on 5th June 2014 from the arbitrator
stating that the proceeding could not take place on 2nd May 2014, and the
next date of hearing was shifted to 9th July 2014.
9. Learned senior counsel appearing on behalf of petitioner submitted
that the claim petition filed by the Respondent before the Arbitrator on 9 th
July 2014 was also never served upon the Petitioner which is a serious
error that goes to the root of the matter. It is also submitted that though
the Respondent was directed by the Arbitrator on 23rd September 2014 to
re-send a copy of the notice dated 10th March 2014 to the Petitioner and
to place on record a copy of the dispatch proof as well as the delivery
report, but no such courier was ever received by the Petitioner to this
effect. It is further submitted that the Petitioner gained knowledge of the
impugned Award on 23rd May 2022 when the Petitioner received a notice
dated 19th May 2022 from a Dubai Court.
10. Learned senior counsel appearing on behalf of petitioner further
submitted that in the execution proceedings in UAE, the Respondent
herein has taken a stand that the impugned arbitral award was sent by the
learned Arbitrator to the Petitioner through courier on 18th March 2015
and a courier receipt has also been provided as a proof of delivery.
However, it is submitted by the learned senior counsel that this does not
evidence receipt by the Petitioner of the impugned arbitral award. It is
further submitted that the Petitioner has filed an appeal against the notice
dated 19th May 2022 issued by a Dubai Court which is pending before the
Appellate Court in Dubai. It is further submitted that in the reply filed by
the Respondent herein to that appeal, the Respondent has miserably failed
to place on record any evidence to establish that the notice dated 10th
March 2014 issued by the Arbitrator giving his consent to act as the
Arbitrator was ever dispatched or delivered to the Petitioner by any mode.
11. Learned senior counsel appearing on behalf of petitioner further
vehemently argued that the Arbitrator ought to have addressed a
communication subsequent to his appointment, notifying the first date of
hearing, and thereafter communicating every order passed. It is submitted
that vague and isolated emails sent to the Petitioner by the Arbitrator
cannot constitute proper notice. It is accordingly, submitted that grave
prejudice has been caused to the Petitioner in being impeded to meet her
defence before the Arbitral Tribunal. It is also argued that the Petitioner
has received only two correspondences, first, legal notice dated 6th
November 2013 issued by the Respondent to the Petitioner and second,
email dated 5th June 2014 sent by the Arbitrator to the Petitioner. Learned
senior counsel has categorically denied the receipt of the following
correspondences which has been mentioned in the impugned arbitral
1. Letter dated January 2014 pertaining to appointment of the
2. Arbitration commencement Notice dated 10th March 2014 issued
by the Arbitrator to the Petitioner and the Respondent.
3. Pleadings or Statement of Claim filed by the Respondent herein.
4. Order dated 1st November 2014 passed by the Arbitrator vide
which the Petitioner herein was proceeded ex parte.
12. Another main ground taken by Mr. Mehta, learned senior counsel
appearing on behalf of petitioner, is that the Employment Agreement was
executed between the Petitioner and CEITI, which is a separate and
distinct legal entity, based in Dubai; and not between the Petitioner and
the Respondent herein. It is submitted that as the arbitration proceedings
were alleged to have been initiated by the Respondent relying on the said
Employment Agreement and accordingly, the invocation of the
arbitration proceedings is bad in law as there is no privity of contract
between the Petitioner and the Respondent. It is also submitted that such
an infirmity goes to the root of the matter rendering the impugned arbitral
award as null and void.
13. Learned senior counsel appearing on behalf of petitioner has also
pleaded that a bare perusal of the impugned arbitral award would show
that it has been passed by treating the Indian Law as the substantive law
of the contract whereas, the substantive law of the contract was the UAE
Federal Labour Law. It is further submitted that the parties had agreed for
the substantive law of the contract to be the UAE Federal Labour Law
and according to which, employment and labour disputes are not capable
of resolution by arbitration, i.e., they are non-arbitrable disputes. It is
accordingly submitted that the impugned arbitral award is completely
perverse and in conflict with the public policy of India and hence, is
liable to be set aside under Section 34(2)(b)(ii) of the Arbitration Act.
14. Learned senior counsel appearing on behalf of petitioner submitted
that the Arbitrator has erred in interpreting the provisions of the
Employment Agreement as he has awarded the entire claim amount
demanded by the Respondent herein. It is submitted that as per the
provisions of the Employment Agreement, from the 2nd year onwards, all
collections would have accrued to the Petitioner as her top-line which
means that the Petitioner would retain the collections and would only
remit either 25%/15% (depending on the product) to Career Launcher and
hence, the approach taken by the Arbitrator does not stand to reason in
view of the specific provisions of the Employment Agreement. It is
further submitted that the Arbitrator has returned an erroneous finding
that the Employment Agreement stood automatically renewed in view of
the specific conditions in the Employment Agreement inasmuch as the
conditions requisite for the automatic renewal were never satisfied. It is
submitted that for automatic renewal, two conditions should have been
satisfied, which in the present facts and circumstances have not been
satisfied, first, the Petitioner should continue the employment after expiry
of the Employment Agreement and second, neither party has given a
notice declining renewal at least 30 days prior to the expiry date. It is also
argued that the Arbitrator has awarded an exorbitant interest of 18% per
annum, without there being any provision in the contract for award of
interest, let alone such a high quantum of interest. This is contrary to the
basic notions of justice and thus, the Arbitral Award is liable to be set
aside under Section 34(2)(b)(ii) of the Arbitration Act.
15. He has relied upon the following judicial pronouncements to
substantiate the submissions made in support of the instant petition:
a) Alupro Building Systems Pvt. Ltd. vs. Ozone Overseas Pvt. Ltd.,
b) Sachin Gupta vs. K.S. Metal Forge Pvt. Ltd., (2013) 10 SCC 540.
c) Suvidha Infracon Pvt. Ltd vs. Intec Capital Ltd., (2018) SCC
d) Union of India vs. Tecco Trichy Engineers & Contractors, (2005)
e) Benarsi Krishna Committee vs. Karmyogi Shelters Pvt. Ltd.,
f) State of Maharashtra vs. Ark Builders, (2011) 4 SCC 616.
(on behalf of the respondent)
16. Per Contra, Mr. Dhruv Mehta, learned senior counsel appearing on
behalf of respondent has taken a preliminary objection to the
maintainability of the present petition and has submitted that the instant
petition is clearly barred by limitation, as it has been filed after the expiry
of eight years from the date of receipt of the award by the Petitioner. It is
further submitted that the Petitioner has taken a frivolous plea that the
impugned award dated 16th March 2015 came to the knowledge of the
Petitioner only on 23rd May 2022 inasmuch as the impugned award was
delivered to the Petitioner on 23rd March 2015 by the Arbitrator which is
also evident from the additional documents filed by the Petitioner itself.
17. Learned senior counsel appearing on behalf of respondent
submitted that provisions of the Limitation Act, 1963 are not applicable
for the purpose of Section 34 of the Arbitration Act as the Arbitration Act
is a complete code in itself. Learned senior counsel has further relied on
Section 34(3) of the Arbitration Act to contend that the arbitral award can
be challenged within a period of three months of the receipt of the Award,
which can be extended only for a further period of 30 days on showing
sufficient cause. It is also submitted that as per various authoritative
judicial pronouncements by the Hon‟ble Supreme Court, the time-line
provided under Section 34(3) of the Arbitration Act is mandatory and
inflexible and hence, this Court does not have any power to condone any
delay exceeding 30 days.
18. Learned senior counsel appearing on behalf of respondent has
relied on para 8.16 of the Petition as well as page nos. 136 and 137 of the
additional documents filed by the Petitioner to contend that the Petitioner
had full knowledge of the arbitral award and had also received a copy of
the impugned arbitral award on 23rd March 2015 as the tracking report of
the parcel No. DHL-1491930425 (a parcel containing arbitral award sent
by the Arbitrator to the Petitioner by Express India) clearly shows that the
impugned arbitral award was delivered to Mr. Shrey Baxi, who is a
partner/employee of the Petitioner herein. It is submitted that the parcel
was accepted by Mr. Shrey Baxi on behalf of the Petitioner as he has a
full-time association with the entity namely the Knowledge Planet UAE
(an entity run by the Petitioner). Learned senior counsel has placed
reliance on Section 3 of the Arbitration Act to contend that any written
communication if delivered at the place of business is deemed to have
been received on the day it is so delivered. It is accordingly, submitted
that the contention of the Petitioner that the knowledge of the impugned
arbitral award came to the notice of the Petitioner on 23rd May 2022 is
totally false and contrary to the record as Section 34(3) of the Act is not
dependent on the knowledge but on the receipt of the award sent by the
19. It is further submitted that the Petitioner in her reply to the legal
notice issued by the Respondent‟s Advocate has signed as Chief Mentor
of the Knowledge Planet and the address of the Petitioner is undisputed
and has not been denied in any of the pleadings or otherwise. It is
accordingly submitted that the award has been delivered at the undisputed
address of the Petitioner in Dubai and hence, the requirements of Section
31(5) of the Arbitration Act has been complied with. Learned senior
counsel has submitted that the impugned arbitral award is not a result of
some overnight proceeding but has been passed after giving several
opportunities to the Petitioner to appear and answer the claims of the
Respondent which is evident inter alia from the following
correspondences:
a) Issuance of legal notice dated 6th November 2013 by the
Respondent to the Petitioner to initiate legal proceeding by stating
to refer the dispute for Arbitration.
b) Reply to the above legal notice by the petitioner on 16 th November
c) Email dated 5th June 2014 from the Arbitrator to both the parties
clearly mentioned the pendency of Arbitral proceeding.
d) Arbitrator in para 2,3, and 4 of the Award stated that he gave
consent vide notice dated 10th March 2014 and accordingly, parties
were directed to appear before the Tribunal on 2nd May 2014.
e) Arbitrator in para 5, 6, and 7 of the Award mentioned that on 23rd
September 2014 Respondent herein was directed to re-send the
copy of the notice dated 10th March 2014 along with the order
dated 23rd September 2014 to the Petitioner and the courier receipt
of same was filed on 1st November 2014.
20. Learned senior counsel appearing on behalf of respondent has
further submitted that the notice under Section 21 of the Arbitration Act
was duly issued by the Respondent to the Petitioner by way of a legal
notice dated 6th November 2013, which clearly indicated the intention of
the Respondent to initiate the arbitral proceedings in case of continuous
breach of the Employment Agreement . It is submitted that the Petitioner
has even replied to this legal notice. It is further submitted that the notice
appointing the Arbitrator was also sent to the Petitioner in January 2014,
stating that as disputes have arisen between the parties on account of
alleged violation of the terms and conditions of the Employment
Agreement by the Petitioner, the Respondent was appointing a sole
Arbitrator to adjudicate the disputes. It is also submitted that the
statement of claim filed by the Respondent herein was also sent to the
Petitioner and the receipt of the same is also filed in the additional
documents filed by the Petitioner.
21. Learned senior counsel appearing on behalf of respondent also
submitted that the curial law applicable to the Employment Agreement
was Indian law and thus all the requirements of the delivery of service as
required under the Indian laws stands satisfied as the communications
made to the Petitioner were duly received by the Petitioner. It is further
submitted that the ground taken by the Petitioner that there existed no
arbitration agreement between the Petitioner and the Respondent is
misconceived and in the nature of an argument of last resort. It is
submitted that at no point of time, either at the time of exchange of emails
or otherwise, the Petitioner has denied the existence of the arbitration
agreement or even otherwise, a simple perusal of the Employment
Agreement clearly shows that there exists a valid arbitration agreement
between the Petitioner and the Respondent.
22. Learned senior counsel appearing on behalf of respondent has
taken a vehement plea that the right of the Petitioner to raise the issue of
non-compliance of Section 21 stands waived in accordance with Section
4 of the Arbitration Act as she has failed to participate in the arbitral
proceedings despite being aware of the continuation of the arbitral
proceedings. Even otherwise, it is submitted that the Section 21 of the
Arbitration Act is a derogable provision which is apparent from the fact
that it starts with the words “Unless otherwise agreed by the parties…‖
23. It is further argued that the Employment Agreement clearly
provided for the resolution of the disputes arising between the parties as
per Indian law, as the seat of the arbitration proceedings was envisaged to
be at New Delhi. It is accordingly, submitted that the disputed
adjudicated between the parties were clearly arbitrable. It is also
submitted that it is no longer res integra that the Courts under Section 34
of the Arbitration Act would not sit in Appeal over the findings recorded
by the Arbitrator thereby, reviewing the interpretation of the contract as
well as the factual findings arrived by the Arbitrator. It is submitted that
the Writ of execution has already been granted by the First Court of
Dubai and the petitioner has filed an Appeal in the Court of Appeal in
Dubai challenging the execution proceedings and hence, the sole purpose
of filing the present petition is to halt and create obstructions in the
execution proceedings presently going on in Dubai Courts, for the
execution of the impugned arbitral award.
24. He has relied on the following judicial pronouncements to
substantiate his argument that the present petition is liable to be
a) Mahindra and Mahindra Financial Service Limited v.
Maheshbhai Tinabhai Rathod and Others, (2022) 4 SCC 162.
b) P. Radha Bai v. P. Ashok Kumar, (2019) 13 SCC 445.
c) Manohar Lal & Co. v. Axis Bank Ltd. 2018 SCC Online Cal
d) Rlj Ferro Alloys Pvt. Ltd. & Ors v. M/s. Reliance Capital Limited,
e) Shri Lachoo Mal vs Shri Radhey Shyam (1971) 1 SCC 619.
f) Prasun Roy vs Calcutta MDA (1987) 4 SCC 217.
(Rebuttal on behalf of petitioner)
25. In the rejoinder, the learned senior counsel for the petitioner
submitted that the legal notice dated 6th November 2013 can in no case
amount to a notice under Section 21 of the Arbitration Act. It is submitted
that under Section 21, an arbitration proceeding commences ―on the date
on which a request for that dispute to be referred to arbitration is
received by the Respondent" but the notice dated 6th November 2013
neither contains any request to refer disputes to arbitration nor proposes
any Arbitrator to be appointed, and merely mentions that such reference
would occur in the future if the Respondent‟s demands are not met. It is
further submitted that this notice itself has been described by the
Respondent as a „legal demand notice‟ which cannot satisfy the essentials
of Section 21 of the Arbitration Act.
26. Learned senior counsel also submitted that the tracking report
clearly shows that the impugned arbitral award was not delivered to
Monika Oli but to one Mr. Shrey Baxi. It is categorically denied by the
learned senior counsel that Mr. Baxi is a partner/employee of Monika Oli
and that he accepted the impugned award on behalf of the Petitioner. It is
further submitted that Knowledge Planet LLC is a company registered in
Dubai in which the Petitioner is a minority shareholder and Mr. Baxi is an
employee and hence, he could not have accepted any service on behalf of
the Petitioner.
27. Learned senior counsel has also taken a vehement plea that
issuance of notice under Section 21 of the Arbitration Act is mandatory
and its non-issuance renders the entire arbitral proceedings as non-est and
void ab initio. It is further submitted that Section 4 of the Arbitration Act
cannot be invoked to waive the requirement of Section 21 of the
Arbitration Act as the compliance with the latter is a matter of mandatory
statutory requirement. Even otherwise, it is submitted that Section 4 of
the Act applies only in those cases where the party „proceeds with
arbitration without stating his objection‟. In the instant case, it is
submitted that the Petitioner was proceeded ex-parte and as such, there
arises no question of the Petitioner having proceeded with the arbitration.
In other words, a party cannot be said to be one who “proceeds with” an
arbitration if, as in the present case, the party has not participated inter
alia due to lack of proper notice of the proceedings.
28. It is further argued that delivery of signed arbitral award is not
governed by Section 3 of the Arbitration Act but is governed by Section
31(5) of the Arbitration Act and hence, the arbitral award must have been
delivered to the individual who was a party to the arbitration proceedings
or the responsible officer of an entity which is a party handling the
arbitral dispute. It is accordingly, submitted that delivery of arbitral award
being not a mere formality, was not satisfied in the present facts and
circumstances of the case.
29. Heard learned senior counsel appearing for the parties at length and
also perused the record of the instant petition. This Court has carefully
perused the impugned arbitral award, and has given thoughtful
consideration to the submissions advanced on behalf of the parties.
30. The primary question which requires consideration is:
I. Whether the present petition under Section 34 of the
Arbitration Act is barred by limitation?
(i) Whether the delivery of the impugned arbitral award
to one Mr. Shrey Baxi can be taken as receipt of the
award to the Petitioner in view of the provisions of the
(ii) Whether the various correspondences between the
Petitioner, Respondent and the Arbitrator constitute as a
valid notice under Section 21 of the Arbitration Act?
31. It is necessary to reproduce Section 34(3) of the Arbitration Act,
which reads as under:-
“34. Application for setting aside arbitral award.—(1)
Recourse to a Court against an arbitral award may be made
only by an application for setting aside such award in
accordance with sub-section (2) and subsection (3).
(3) An application for setting aside may not be made after
three months have elapsed from the date on which the party
making that application had received the arbitral award or,
if a request had been made under Section 33, from the date
on which that request had been disposed of by the arbitral
Provided that if the Court is satisfied that the applicant was
prevented by sufficient cause from making the application
within the said period of three months it may entertain the
application within a further period of thirty days, but not
thereafter.‖
32. In the present case, it is not disputed that the impugned arbitral
award was passed on 16th March 2015. But the Petitioner has vehemently
disputed the receipt of the arbitral award on 23rd March 2015 which is
alleged to have been sent by the learned Arbitrator. The Arbitration Act
in Para 4(v) of the Statement of Objects and Reasons states one of the
most important objectives which is the need “to minimize the supervisory
role of courts in the arbitral process”. Section 5 of the Arbitration Act is
in the nature of injunction to the Courts and clearly defines the scope of
judicial intervention in an Arbitration proceeding. Section 5 of the
Arbitration Act is reproduced below:
―5. Extent of judicial intervention.—Notwithstanding
anything contained in any other law for the time being in
force, in matters governed by this Part, no judicial authority
shall intervene except where so provided in this Part.‖
33. The Hon‟ble Supreme Court in Mahindra & Mahindra Financial
Services Ltd. vs. Maheshbhai Tinabhai Rathod & Ors., (2022) 4 SCC
162, has given the following interpretation to Section 34(3) of the
―9. The scope available for condonation of delay being
self-contained in the proviso to Section 34(3) and Section 5
of the Limitation Act not being applicable has been taken
note by this Court in its earlier decisions, which we may
note. In Union of India v. Popular Construction Co. [Union
of India v. Popular Construction Co., (2001) 8 SCC 470] it
has been held as hereunder : (SCC pp. 474-76, paras 12, 14
―12. As far as the language of Section 34 of the 1996
Act is concerned, the crucial words are ―but not
thereafter‖ used in the proviso to sub-section (3). In our
opinion, this phrase would amount to an express
exclusion within the meaning of Section 29(2) of the
Limitation Act, and would therefore bar the application
of Section 5 of that Act. Parliament did not need to go
further. To hold that the court could entertain an
application to set aside the award beyond the extended
period under the proviso, would render the phrase ―but
not thereafter‖ wholly otiose. No principle of
interpretation would justify such a result.
14. Here the history and scheme of the 1996 Act
support the conclusion that the time-limit prescribed
under Section 34 to challenge an award is absolute and
unextendible by court under Section 5 of the Limitation
Act. The Arbitration and Conciliation Bill, 1995 which
preceded the 1996 Act stated as one of its main objectives
the need ―to minimise the supervisory role of courts in
the arbitral process‖ [ Para 4(v) of the Statement of
Objects and Reasons of the Arbitration and Conciliation
Act, 1996.] . This objective has found expression in
Section 5 of the Act which prescribes the extent of
judicial intervention in no uncertain terms:
‗5. Extent of judicial intervention.—
Notwithstanding anything contained in any other law
for the time being in force, in matters governed by this
Part, no judicial authority shall intervene except
where so provided in this Part.‘
16. Furthermore, Section 34(1) itself provides that
recourse to a court against an arbitral award may be
made only by an application for setting aside such award
―in accordance with‖ sub-section (2) and sub-section (3).
Sub-section (2) relates to grounds for setting aside an
award and is not relevant for our purposes. But an
application filed beyond the period mentioned in Section
34, sub-section (3) would not be an application ―in
accordance with‖ that sub-section. Consequently by
virtue of Section 34(1), recourse to the court against an
arbitral award cannot be made beyond the period
prescribed. The importance of the period fixed under
Section 34 is emphasised by the provisions of Section 36
which provide that
‗36. Enforcement.—Where the time for making an
application to set aside the arbitral award under
Section 34 has expired … the award shall be enforced
under the Civil Procedure Code, 1908 (5 of 1908) in
the same manner as if it were a decree of the Court.‘
This is a significant departure from the provisions of the
Arbitration Act, 1940. Under the 1940 Act, after the time
to set aside the award expired, the court was required to
―proceed to pronounce judgment according to the award,
and upon the judgment so pronounced a decree shall
follow‖ (Section 17). Now the consequence of the time
expiring under Section 34 of the 1996 Act is that the
award becomes immediately enforceable without any
further act of the court. If there were any residual doubt
on the interpretation of the language used in Section 34,
the scheme of the 1996 Act would resolve the issue in
favour of curtailment of the court's powers by the
exclusion of the operation of Section 5 of the Limitation
9.1. Further, in State of H.P. v. Himachal Techno
Engineers [State of H.P. v. Himachal Techno Engineers,
(2010) 12 SCC 210 : (2010) 4 SCC (Civ) 605] it was noted
and held as hereunder : (SCC pp. 211-12, paras 2 & 5)
―2. A petition under Section 34 of the Arbitration and
Conciliation Act, 1996 (―the Act‖ for short) was filed by
the appellant on 11-3-2008, challenging the arbitral
award. The petition was accompanied by an application
under sub-section (3) of Section 34 of the Act, for
condonation of delay of 28 days in filing the petition. The
respondent resisted the application contending that the
petition under Section 34 was filed beyond the period of 3
months plus 30 days and therefore, was liable to be
rejected.
5. Having regard to the proviso to Section 34(3) of the
Act, the provisions of Section 5 of the Limitation Act,
1963 will not apply in regard to petitions under Section
34 of the Act. While Section 5 of the Limitation Act does
not place any outer limit in regard to the period of delay
that could be condoned, the proviso to sub-section (3) of
Section 34 of the Act places a limit on the period of
condonable delay by using the words ‗may entertain the
application within a further period of thirty days, but not
thereafter‘. Therefore, if a petition is filed beyond the
prescribed period of three months, the court has the
discretion to condone the delay only to an extent of thirty
days, provided sufficient cause is shown. Where a petition
is filed beyond three months plus thirty days, even if
sufficient cause is made out, the delay cannot be
condoned.‖
9.2. The same view was taken by this Court in P. Radha
Bai v. P. Ashok Kumar [P. Radha Bai v. P. Ashok Kumar,
(2019) 13 SCC 445 : (2018) 5 SCC (Civ) 773] wherein this
Court held as follows : (SCC pp. 457-58, para 33)
―33.2. The proviso to Section 34(3) enables a court to
entertain an application to challenge an award after the
three months' period is expired, but only within an
additional period of thirty dates, ―but not thereafter‖.
The use of the phrase ―but not thereafter‖ shows that the
120 days' period is the outer boundary for challenging an
award. If Section 17 were to be applied, the outer
boundary for challenging an award could go beyond 120
days. The phrase ―but not thereafter‖ would be rendered
redundant and otiose. This Court has consistently taken
this view that the words ―but not thereafter‖ in the
proviso of Section 34(3) of the Arbitration Act are of a
mandatory nature, and couched in negative terms, which
leaves no room for doubt. [State of H.P. v. Himachal
Techno Engineers [State of H.P. v. Himachal Techno
Board v. Subash Projects & Mktg. Ltd. [Assam Urban
Water Supply & Sewerage Board v. Subash Projects &
and Anilkumar Jinabhai Patel v. Pravinchandra Jinabhai
Patel [Anilkumar Jinabhai Patel v. Pravinchandra
9.3. The observations of this Court in different decisions
relating to non-applicability of Section 5 of the Limitation
Act in condoning the delay and extending the limitation
prescribed under Section 34(3) of the 1996 Act was taken
note of by a Bench of three Hon'ble Judges of this Court with
approval, in Chintels (India) Ltd. v. Bhayana Builders (P)
Ltd. [Chintels (India) Ltd. v. Bhayana Builders (P) Ltd.,
34. Therefore, one thing is clear that this Court does not have the
power to condone any delay which exceeds the statutory time limit
prescribed under Section 34(3) of the Arbitration Act. As a necessary
corollary, next important question that arises for consideration is that
whether the delivery of the arbitral award to one Mr. Shrey Baxi
constitutes as a delivery to the Petitioner, so as to bring in the bar
envisaged under Section 34(3) of the Arbitration Act?
35. At this stage, it is pertinent to refer to Sections 2(h) and 31(5) of
the Arbitration Act. These Sections read as under:
―2. Definitions.—(1) In this Part, unless the context
(h) ―party‖ means a party to an arbitration agreement.
31. Form and contents of arbitral award.—(1) An arbitral
award shall made in writing and shall be signed by the
members of the arbitral tribunal.
(5) After the arbitral award is made, a signed copy shall be
delivered to each party.‖
36. In Union of India vs. Tecco Trichy Engineers & Contractors,
(2005) 4 SCC 239, the question which arose before the Hon‟ble Supreme
Court was that whether delivery of the impugned arbitral award to the
General Manager of Railways will constitute as valid delivery in terms of
Section 31(5) of the Arbitration Act, when the party before the Arbitrator
was the Chief Engineer? The Hon‟ble Supreme Court while answering
the question in the negative laid down the following proposition of law:
“6. Form and contents of the arbitral award are provided
by Section 31 of the Act. The arbitral award drawn up in the
manner prescribed by Section 31 of the Act has to be signed
and dated. According to sub-section (5), ―after the arbitral
award is made, a signed copy shall be delivered to each
party‖. The term “party” is defined by clause (h) of Section
2 of the Act as meaning “a party to an arbitration
agreement”. The definition is to be read as given unless the
context otherwise requires. Under sub-section (3) of Section
34 the limitation of 3 months commences from the date on
which ―the party making that application‖ had received the
arbitral award. We have to see what is the meaning to be
assigned to the term ―party‖ and ―party making the
application‖ for setting aside the award in the context of the
State or a department of the Government, more so a large
organisation like the Railways.
7. It is well known that the Ministry of Railways has a
very large area of operation covering several divisions,
having different divisional heads and various departments
within the division, having their own departmental heads.
The General Manager of the Railways is at the very apex of
the division with the responsibility of taking strategic
decisions, laying down policies of the organisation, giving
administrative instructions and issuing guidelines in the
organisation. He is from elite managerial cadre which runs
the entire organisation of his division with different
departments, having different departmental heads. The day-
to-day management and operations of different departments
rests with different departmental heads. The departmental
head is directly connected and concerned with the
departmental functioning and is alone expected to know the
progress of the matter pending before the Arbitral Tribunal
concerning his department. He is the person who knows
exactly where the shoe pinches, whether the arbitral award
is adverse to the department's interest. The departmental
head would naturally be in a position to know whether the
arbitrator has committed a mistake in understanding the
department's line of submissions and the grounds available
to challenge the award. He is aware of the factual aspect of
the case and also the factual and legal aspects of the
questions involved in the arbitration proceedings. It is also a
known fact and the Court can take judicial notice of it that
there are several arbitration proceedings pending
consideration concerning affairs of the Railways before
arbitration. The General Manager, with executive workload
of the entire division cannot be expected to know all the
niceties of the case pending before the Arbitral Tribunal or
for that matter the arbitral award itself and to take a
decision as to whether the arbitral award deserves
challenge, without proper assistance of the departmental
head. The General Manager, being the head of the division,
at best is only expected to take final decision whether the
arbitral award is to be challenged or not on the basis of the
advice and the material placed before him by the person
concerned with arbitration proceedings. Taking a final
decision would be possible only if the subject-matter of
challenge, namely, the arbitral award is known to the
departmental head, who is directly concerned with the
subject-matter as well as arbitral proceedings. In large
organisations like the Railways, ―party‖ as referred to in
Section 2(h) read with Section 34(3) of the Act has to be
construed to be a person directly connected with and
involved in the proceedings and who is in control of the
proceedings before the arbitrator.
8. The delivery of an arbitral award under sub-section (5)
of Section 31 is not a matter of mere formality. It is a matter
of substance. It is only after the stage under Section 31 has
passed that the stage of termination of arbitral proceedings
within the meaning of Section 32 of the Act arises. The
delivery of arbitral award to the party, to be effective, has to
be ―received‖ by the party. This delivery by the Arbitral
Tribunal and receipt by the party of the award sets in motion
several periods of limitation such as an application for
correction and interpretation of an award within 30 days
under Section 33(1), an application for making an additional
award under Section 33(4) and an application for setting
aside an award under Section 34(3) and so on. As this
delivery of the copy of award has the effect of conferring
certain rights on the party as also bringing to an end the
right to exercise those rights on expiry of the prescribed
period of limitation which would be calculated from that
date, the delivery of the copy of award by the Tribunal and
the receipt thereof by each party constitutes an important
stage in the arbitral proceedings.
9. In the context of a huge organisation like the Railways,
the copy of the award has to be received by the person who
has knowledge of the proceedings and who would be the best
person to understand and appreciate the arbitral award and
also to take a decision in the matter of moving an
application under sub-section (1) or (5) of Section 33 or
under sub-section (1) of Section 34.‖
37. Though, the aforesaid decision of the Hon‟ble Supreme Court dealt
with the meaning of ‗party‘ in the context of a larger organization, but the
general principles laid down cannot be ignored and are of a vital
importance in the facts and circumstances of the present case.
Ltd., (2012) 9 SCC 496, the Hon'ble Supreme Court was confronted with
a question as to whether delivery of an arbitral award on agent or
advocate of a party would constitute as a proper delivery in terms of
Sections 31(5) and 34(3)? The Hon‟ble Supreme Court while answering
the question in the negative laid down the following proposition of law:
―15. Having taken note of the submissions advanced on
behalf of the respective parties and having particular regard
to the expression ―party‖ as defined in Section 2(1)(h) of the
1996 Act read with the provisions of Sections 31(5) and
34(3) of the 1996 Act, we are not inclined to interfere with
the decision [Karmyogi Shelters (P) Ltd. v. Benarsi Krishna
Committee, AIR 2010 Del 156] of the Division Bench of the
Delhi High Court impugned in these proceedings. The
expression ―party‖ has been amply dealt with in Tecco
Trichy Engineers case [(2005) 4 SCC 239] and also in ARK
Builders (P) Ltd. case [(2011) 4 SCC 616 : (2011) 2 SCC
(Civ) 413] , referred to hereinabove. It is one thing for an
advocate to act and plead on behalf of a party in a
proceeding and it is another for an advocate to act as the
party himself. The expression ―party‖, as defined in Section
2(1)(h) of the 1996 Act, clearly indicates a person who is a
party to an arbitration agreement. The said definition is not
qualified in any way so as to include the agent of the party to
such agreement. Any reference, therefore, made in Section
31(5) and Section 34(2) of the 1996 Act can only mean the
party himself and not his or her agent, or advocate
empowered to act on the basis of a vakalatnama. In such
circumstances, proper compliance with Section 31(5) would
mean delivery of a signed copy of the arbitral award on the
party himself and not on his advocate, which gives the party
concerned the right to proceed under Section 34(3) of the
aforesaid Act.
16. The view taken in Pushpa Devi Bhagat case [(2006) 5
SCC 566] is in relation to the authority given to an advocate
to act on behalf of a party to a proceeding in the
proceedings itself, which cannot stand satisfied where a
provision such as Section 31(5) of the 1996 Act is concerned.
The said provision clearly indicates that a signed copy of the
award has to be delivered to the party. Accordingly, when a
copy of the signed award is not delivered to the party
himself, it would not amount to compliance with the
provisions of Section 31(5) of the Act. The other decision
cited by Mr Ranjit Kumar in Nilkantha Sidramappa
Ningashetti case [AIR 1962 SC 666 : (1962) 2 SCR 551] was
rendered under the provisions of the Arbitration Act, 1940,
which did not have a provision similar to the provisions of
Section 31(5) of the 1996 Act. The said decision would,
therefore, not be applicable to the facts of this case also.‖
39. Therefore, the proposition laid down in Tecco Trichy Engineers &
Contractors (supra) in the context of large bodies was even extended to
„agents‘ or „advocates‘ of parties.
40. In State of Maharashtra v. ARK Builders (P) Ltd., (2011) 4 SCC
616, the Hon‟ble Supreme Court was dealing with the question as to
whether the period of limitation for making an application under Section
34 is to be reckoned from the date on which a copy of the award is
received by the objector by any means and from any source, or it would
start running from the date a signed copy of the award is delivered to him
by the arbitrator? The Hon'ble Supreme Court laid down the following
principles of law:
―13. Section 34 of the Act then provides for filing an
application for setting aside an arbitral award, and sub-
section (3) of that section lays down the period of limitation
for making the application in the following terms:
―34.Application for setting aside arbitral award.—(1)
Recourse to a court against an arbitral award may be
made only by an application for setting aside such award
in accordance with sub-section (2) and sub-section (3).
(3) An application for setting aside may not be made
after three months have elapsed from the date on which
the party making that application had received the
arbitral award or, if a request had been made under
Section 33, from the date on which that request had been
disposed of by the Arbitral Tribunal:
Provided that if the court is satisfied that the applicant
was prevented by sufficient cause from making the
application within the said period of three months it may
entertain the application within a further period of thirty
days, but not thereafter.
The expression ―party making that application
had received the arbitral award‖ (emphasis supplied)
cannot be read in isolation and it must be understood in light
of what is said earlier in Section 31(5) that requires a signed
copy of the award to be delivered to each party. Reading the
two provisions together it is quite clear that the limitation
prescribed under Section 34(3) would commence only from
the date a signed copy of the award is delivered to the party
making the application for setting it aside.
14. We are supported in our view by the decision of this
Court in Union of India v. Tecco Trichy Engineers &
Contractors [(2005) 4 SCC 239] ; in SCC para 8 of the
decision it was held and observed as follows: (SCC p. 243)
―8. The delivery of an arbitral award under sub-
section (5) of Section 31 is not a matter of mere formality.
It is a matter of substance. It is only after the stage under
Section 31 has passed that the stage of termination of
arbitral proceedings within the meaning of Section 32 of
the Act arises. The delivery of arbitral award to the party,
to be effective, has to be ‗received‘ by the party. This
delivery by the Arbitral Tribunal and receipt by the party
of the award sets in motion several periods of limitation
such as an application for correction and interpretation
of an award within 30 days under Section 33(1), an
application for making an additional award under
Section 33(4) and an application for setting aside an
award under Section 34(3) and so on. As this delivery of
the copy of award has the effect of conferring certain
rights on the party as also bringing to an end the right to
exercise those rights on expiry of the prescribed period of
limitation which would be calculated from that date, the
delivery of the copy of award by the Tribunal and the
receipt thereof by each party constitutes an important
stage in the arbitral proceedings.‖
15. The highlighted portion of the judgment extracted
above, leaves no room for doubt that the period of limitation
prescribed under Section 34(3) of the Act would start
running only from the date a signed copy of the award is
delivered to/received by the party making the application for
setting it aside under Section 34(1) of the Act. The legal
position on the issue may be stated thus. If the law
prescribes that a copy of the order/award is to be
communicated, delivered, dispatched, forwarded, rendered
or sent to the parties concerned in a particular way and in
case the law also sets a period of limitation for challenging
the order/award in question by the aggrieved party, then
the period of limitation can only commence from the date
on which the order/award was received by the party
concerned in the manner prescribed by the law.‖
41. Therefore, the principle of law which was laid down by this
decision is that the signed arbitral award must have been delivered to the
party to the arbitration, in the manner which is prescribed under the
Arbitration Act. This Court has gone through the Employment Agreement
dated 15th February 2010 and it is clear that the Employment Agreement
was executed by Ms. Monika Oli individually and not in the capacity of
her being a shareholder of Knowledge Planet LLC. This Court has also
gone through the DHL Express Shipments which notes that the arbitral
award has been delivered to one Mr. Shrey Baxi. The Respondent has
vehemently pleaded that delivery to Mr. Baxi constitutes as delivery to
the Petitioner as the Petitioner has admitted to be a minority shareholder
in Knowledge Planet LLC and Mr. Baxi as an employee of Knowledge
Planet LLC. The Petitioner on the other hand has taken a stand that Mr.
Baxi has not accepted the delivery on behalf of the Petitioner and hence,
does not constitute as a valid delivery envisaged under Section 34(3) read
with Section 31(5) of the Arbitration Act. In the opinion of this Court, no
valid delivery of arbitral award has been affected in the facts and
circumstances of the case. The decision of the Calcutta High Court in
Manohar Lal & Co. vs. Axis Bank Ltd., (2018) SCC OnLine Cal
15745, is not of any help to the Respondent as in that case the award was
delivered to the wife of the Petitioner therein who received it on behalf of
her husband, and was delivered at the appropriate address of the
Petitioner therein. The principles qua delivery of arbitral award can be
summarized as follows:
a) The word ‘party’ in Section 34(3) means party to the
arbitration proceedings and does not include an agent of the
party as well.
b) The delivery to be effective and in consonance with the
legislative scheme of Arbitration Act must be made to a
person who has direct knowledge of the arbitral proceedings
and who would be the best person to understand and
appreciate the arbitral award being connected with the
dispute at hand.
42. Learned senior counsel for the Petitioner has taken a plea that
Section 3 of the Arbitration Act is not applicable to the facts and
circumstances of the present case. This Court is unable to agree with this
submission advanced by the learned senior counsel. At the outset, it is
necessary to reproduce Section 3:-
―3. Receipt of written communications.—(1) Unless
otherwise agreed by the parties,—
(a) any written communication is deemed to have been
received if it is delivered to the addressee personally or at
his place of business, habitual residence or mailing address,
(b) if none of the places referred to in clause (a) can be
found after making a reasonable inquiry, a written
communication is deemed to have been received if it is sent
to the addressee's last known place of business, habitual
residence or mailing address by registered letter or by any
other means which provides a record of the attempt to
deliver it.
(2) The communication is deemed to have been received on
the day it is so delivered.
(3) This section does not apply to written communications in
respect of proceedings of any judicial authority.
43. The UNCITRAL Model Law on the International
Commercial Arbitration: A Commentary on Article 31 clearly
negates the submissions advanced by the learned senior counsel for
the Petitioner in the following words:
―Paragraph 4 does not itself specify further formalities for
the ‗delivery‘ of signed copies of the award. Moreover, it is
silent as to which person or entity is burdened with the
obligation of delivering it to the parties. Given the centrality
of notification in the beginning and end of the arbitral
process and the vast range of practices across jurisdictions,
article 3(1)(a) of the Model Law provides sensible guidance,
unless the parties have otherwise agreed, as follows:
… any written communication is deemed to have been
received if it is delivered to the addressee personally or if it
is delivered at his place of business, habitual residence or
mailing address; if none of these can be found after making
a reasonable inquiry, a written communication is deemed to
have been received if it is sent to the addressee‘s last-known
place of business, habitual residence or mailing address by
registered letter or any other means which provides a record
of the attempt to deliver it.
In fact, although not specifically spelt out as a ground for
annulling the award, it certainly cannot be considered
binding until such time as it is delivered to the parties
through an official channel in accordance with the law of the
lex arbitri or the parties‘ chosen institutional rules…..
44. The UNCITRAL Model Law on the International
Commercial Arbitration: A Commentary on Article 3 gives the
following meaning to a ‗Party‘s Place of Business‘:
―The most appropriate definition of a party‘s ‗place of
business‘, for the strict purposes of article 3, is not
necessarily the legal seat of a party, or its principal place of
business, or head office.55 Given that the objective of article
3 is effective receipt of a written communication – and in this
light it allows even for personal delivery – the place of
business may be different from the seat of the party, if its
actual place of business is elsewhere. In transnational
arbitration, a company ordinarily seated in country A may
have to incorporate again in country B, which is where the
contract is to be performed. The new company premises in
country B are merely a representative office, with its
principal seat and place of key operations remaining in
country A. For the purposes of arbitral proceedings,
however, the party‘s place of business is the address in
country B, as long as this remains an effective address
during the arbitral proceedings.
We have already seen that in CLOUT Case 1448 the
claimant sought to identify the defendant‘s place of business
through the Russian register of foreign companies. As a
matter of caution, he was advised to look in the similar
register of the defendant‘s country of origin (Turkey)
because its accreditation in the Russian register had
expired.56 In case of multiple places of business, the
prevailing one is that which has featured the most in the
parties‘ transactions (i.e. by reason of prior mail exchanges,
effective letterheads, appearance in official website, past
place of meetings, registered company address, etc.).57 In
general, substance over form is the best determinant of a
party‘s place of business.”
45. However, in the present case, the Respondent has failed to bring
anything on record to substantiate that the delivery of the award was
made to the Petitioner, apart from the delivery to Mr. Shrey Baxi. In the
opinion of this Court, this cannot constitute as an effective delivery to the
Petitioner more so, when in the arbitral dispute, the Petitioner was
individually concerned and that the dispute did not pertain to her position
at Knowledge Planet LLC. This Court is conscious that it has been close
to 8 years since the award has been passed and a pedantic approach ought
not to be taken, however, justice cannot be thwarted only because
substantial time has elapsed when there is nothing on record to
substantiate compliance with the mandatory provisions of Section 34(3)
read with Section 31(5) of the Arbitration Act particularly, in view of the
decision in Benarsi Krishna Committee (supra). This court is conscious
of its duty to ensure compliance with the principles of natural justice and
when an award has been passed without complying with the mandatory
principles of natural justice, this Court being the custodian of rights and
liberties of parties has to take its guard to correct the infirmities which
have already been carried out. Nothing has been brought in record to
portray that Mr. Baxi had accepted the arbitral award on behalf of the
Petitioner. Therefore, delivery to the employee of an entity in which the
Petitioner is a shareholder but the arbitration dispute did not pertain to
that entity, would not constitute as a proper delivery in terms of the
46. Next question which requires adjudication is that:
II. Whether notice under Section 21 of the Arbitration Act was
given to the Petitioner? If not, can the entire arbitral
proceedings be set aside on this account?
47. The Petitioner has submitted that no effective notice under Section
21 of the Arbitration Act has been served upon her. Before dealing with
this question, it is necessary to reproduce Section 21 of the Arbitration
"21. Commencement of arbitral proceedings.—Unless
otherwise agreed by the parties, the arbitral proceedings in
respect of a particular dispute commence on the date on
which a request for that dispute to be referred to arbitration
is received by the respondent.‖
48. The question as to whether compliance with Section 21 is
mandatory or directory is no longer res integra. Recently, a Division
Bench of this Court has categorically held that compliance with Section
21 is mandatory in nature and not a matter of choice. The relevant portion
of the judgment rendered in Shriram Transport Finance Co. Ltd. vs.
Shri Narendra Singh, (2022) SCC OnLine Del 3412, is reproduced
“25. A perusal of the Arbitral record as filed by the
Appellant Company shows that a letter dated 20.09.2018
was addressed by the Appellant Company to the Respondent
stating that in the event, the payment due is not made within
7 days, the disputes ―stand referred to Arbitration‖ and
further that the Appellant Company shall initiate Arbitral
proceedings. The relevant portion of the said letter is
―7. Hence kindly take Note that you addresses are
advised to pay and clear entire outstanding dues
amounting to Rs. 470248/- as on date 12/09/2018 and
also with accrued interest/Penal all other charges till the
date of repayment/realization and charges, within 7 days
on the receipt of this notice, failing which company will
refer the matter for arbitration.
8. If you have failed to comply with the requisitions
contained in notices, the disputes, differences and claims
shall be deemed to have arisen under the said
Agreement and the said disputes, differences and claim
shall stand referred to the Arbitration.
9. If you are failed to pay the outstanding amount as
per out [sic : our] loan agreement ARTICAL [sic :
Article] No. 15. We have a right to initiate arbitration
processing. So we will initiate the arbitration
[Emphasis is ours]
26. From a plain reading of this letter, two things are
(i) The letter dated 20.09.2018 merely states that the
Appellant Company has a right to initiate Arbitration
proceedings so they will initiate such proceedings;
(ii) This letter does not name any person as an
Arbitrator, nor the fact that the person is being
appointed as an Arbitrator in terms of the procedure
set forth in the Loan Agreement.
27. A week later, a letter dated 27.09.2018, was sent by
the Appellant Company to the Arbitrator appointing him as
the ―Sole Arbitrator to adjudicate the disputes and
differences between Shriram Transport Finance Co. Ltd. and
Mr Narender Singh (Hirer) and pass the award.‖ This letter
was neither marked to the Respondent nor is there any
averment by the Appellant Company that the letter dated
27.09.2018 was in fact sent to the Respondent.
28. From a perusal of the Arbitral Award, it is also
apparent that the letter dated 27.09.2018 was sent by the
Appellant Company to the Arbitrator, by hand, through one
Mr Tekchand Sharma, Attorney for the Appellant Company.
29. In order to deal with the objection of the Appellant
Company, the notice under Section 21 of the Act was sent,
we would need to refer to the said provision. Section 21 of
the Act, which sets forth the date of commencement of
Arbitral proceedings, reads as follows:
―21. Commencement of Arbitral proceedings. - unless
otherwise agreed by the parties, the Arbitral proceedings in
respect of a particular dispute commence on the date on
which a request for that dispute to be referred to Arbitration
is received by the respondent.‖
30. A plain reading of this Section shows that Arbitral
proceedings commence on the date on which the request for
the dispute to be referred to Arbitration is received by the
concerned Respondent. Therefore, the commencement of
Arbitral proceedings is incumbent on the ―receipt of such
request or notice‖. If no notice is received by the concerned
Respondent, there is no commencement of Arbitral
proceedings at all. Emphasis here is also made to the fact
that the notice should not only be ―sent‖ but also that the
notice should be ―received‖ for such request for
commencement.
31. Section 21 will have to be read with Section 34 of the
Act. Section 34 (2) (iii) provides that an award may be set
aside, in the event, where the party appointing the Arbitrator
has not given proper notice of the appointment of an
Arbitrator or the Arbitral proceedings.
32. The judgment in Alupro Building case (supra) has
aptly explained the relevance of a notice under Section 21 of
the Act. It was held that the Act does not contemplate
unilateral appointment of an Arbitrator by one of the parties,
there has to be a consensus for such appointment and as
such, the notice under Section 21 of the Act serves an
important purpose of facilitating such a consensus on the
appointment of an Arbitrator. It was further held in Alupro
Building case (supra) that the parties may opt to waive the
requirement of notice under Section 21 of the Act. However,
in the absence of such a waiver, this provision must be given
full effect to.
33. We are in agreement with the principles as expressed in
the decision of Alupro Building case (supra), which are
enunciated below:
(i) The party to the Arbitration Agreement against whom a
claim is made should know what the claims are. The
notice under Section 21 of the Act provides an
opportunity to such party to point out if some of the
claims are time barred or barred by law or untenable in
fact or if there are counter-claims.
(ii) Where the parties have agreed on a procedure for
appointment, whether or not such procedure has been
followed, will not be known to the other party unless such
a notice is received.
(iii) It is necessary for the party making an appointment to
let the other party know in advance the name of the
person who it proposes to appoint as an Arbitrator. This
will ensure that the suitability of the person is known to
the opposite party including whether or not the person is
qualified or disqualified to act as an Arbitrator for the
various reasons set forth in the Act. Thus, the notice
facilitates the parties in arriving at a consensus for
appointing an Arbitrator.
(iv) Unless such notice of commencement of Arbitral
proceedings is issued, a party seeking reference of
disputes to Arbitration upon failure of the other party to
adhere to such request will be unable to proceed under
Section 11(6) of the Act. Further, the party sending the
notice of commencement may be able to proceed under
the provisions of Sub-section 5 of Section 11 of the Act
for the appointment of an Arbitrator if such notice does
not evoke any response.‖
49. In the present case, the Respondent has relied on legal notice dated
6th November 2013 to contend that the same is equivalent to a notice
under Section 21 of the Arbitration Act. It is imperative to reproduce the
contents of the above-mentioned legal notice:-
Under the instruction & authority and on behalf of my client
company M/S CL Educate Ltd having its Regd Office at R-
90, Greater Kailash –1, New Delhi – 110048 through its
Managing Director – Mr. Gautam Puri, I hereby serve you
with the following Legal Demand –cum- Cease/desist
1.That my client company is a duly incorporated company
under the Companies Act, 1956 in the name and style as CL
Educate Ltd (formerly known as Career Launcher (I) Ltd)
having its Regd Office at R-90, Greater Kailash –1, New
Delhi (India) 110048 and corporate office at 15-A,
2.That you entered into an agreement dated 15.2.2010 with
my client company, whereby you were appointed as
Principal Consultant of my client company for its Dubai
Centre for the purpose of running/operating the study
centre/professional learning centre for conducting IIT-JEE
& AIEEE programme for the aspiring students.
3.That as per the terms & conditions of the said agreement
term of your appointment was from 15 February 2010 to 14
4.That as per the terms & conditions of the said agreement,
it was one of your prime obligation amongst others, to
collect fees from the students in the name of and on behalf of
my client company and further to deposit the fee so collected
in the bank account of my client company.
5.That you were also liable to enter all the details pertaining
to enrolment of students, collection of fee, balance fee etc. in
the ERP system of my client company provided on line.
6.That on reconciliation of the bank statement and ERP
entries made by yourself, it has been come to the notice of
my client company that you did not deposit in the bank
account of my client company an amount of AED 625,775/-
(Six Hundred Twenty Five Thousand Seven Hundred and
Seventy Five only), despite the fact that this amount was
collected by yourself from the students as per the records
available in the ERP system, entries wherein were made by
you only.
7.That you have even failed to deposit this amount in my
client company‘s bank account despite repeated verbal as
well as written reminders/communications made by my client
company thereby demanding to pay this outstanding amount
which was received by you as a trustee of my client
company.
8.That further, you have also collected the installment of fee
from the students due as on 31.1.2013 on behalf of my client
company. As per the ERP records made by yourself in the
ERP system of my client company an amount of AED
1,392,200/- was due on this account. Though you have fully
collected this amount from the students but did not deposit in
the bank account of my client company even after repeated
reminders by my client company. Even my client company
sent you a statement of accounts alognwith a list of students
and amount due, duly audited by third party auditors,
thereby demanding to pay the same but of no avail.
9.That as per the records held with my client company you
made the last student enrolment entry in the ERP system on
15.12.2012 and no enrolments have been entered into the
system thereafter. My client company has not only learnt but
got concrete piece of evidence that you have been enrolling
the students upto 31.1.2013 under the agreement and in the
name of my client company and did not make the entries of
students enrolled after 15.12.2012 in the system, rather
enrolled these students in the name of Knowledge Planet
LLC (a competitive company which is being managed and
run by you for the purpose of starting a competitive business
that to of my client company in gross violation of the terms
and conditions of the agreement dated 15.2.2010) despite the
fact that these students were enrolled and fee was collected
by yourself in the name and on behalf of my client company.
10.That all these acts on your part amounts to criminal
breach of trust as well as misappropriation of funds, which
makes you liable for criminal action apart from recovery of
money by my client company.
11. That further, as per the agreement you were liable to
give a written confirmation with 30 days advance notice
regarding non-continuation of the contract and in case of
failure to issue such notice under clause 8 of the agreement,
it was automatic renewal of agreement and hence my client
company was under belief that you will be continuing with
the agreement and as such they were deprived of the
opportunity to find out a suitable replacement well within
time and thus suffered huge business losses, which though
can not be quantified in term of money but the same is
determined as AED 50,000/- for the purpose of claim, which
you are liable to pay to my client company.
12. Further more, it has also come to the notice of my client
company alongwith relevant evidence that even after
31.1.2013 you have been mis-representing yourself as a
service partner/provider of my client company with sole
intent to mis-guide the parents/students and to lure them to
take admission with your new named entity Knowledge
Planet LLC under the guise that you are a service provider
of my client company and thus caused huge losses to my
client company, for which you are liable to pay damages to
my client company.
13. Further as per the term of the agreement, you were
under legal obligation not to start a direct competing
business that to of my client company in the territory of
United Arab Emirates for a period of 01 year from the date
of termination of agreement, but whereas you immediately
on alleged termination of agreement (through no
communication was made as per the requirement under the
agreement) joined with M/S Knowledge Planet LLC and
started a competing business in gross violation of terms and
conditions of the agreement.
14.Further, you have not only started a competing and
similar business in association of the said Knowledge Planet
LLC but also started using the data/information, manuals
etc. pertaining to my client company which were in your
possession and you did not hand over the same to my client
company till date despite repeated reminders by my client
company. You have been using this data/information,
manuals with malafide intentions and thereby making
wrongful gains for yourself and wrongful losses to my client
company and thus made liable to yourself to pay damages to
my client company.
15. That further more, my client enrolled an employee
named Mr. Yogeshwar Singh Batyal and got him issued visa
in its name since you were not having any licence to get the
visa for employees in your name. This employee was
required for the purpose of discharging your
duties/obligations under the agreement and as such he was
paid all his salary and other emoluments by you. But, with
malafide intentions, you not only failed to clear all the dues
on account of salary & allowances of said Mr. Yogeshwar
Singh Batyal but also failed to complete the formalities for
cancellation of his visa from the Dubai authorities and as
such my client company was compelled to pay an amount of
AED 18120/- (AED 2828 for cancellation of visa and AED
15292 for settlement of his wage account) on account of
settlement of his dues as well getting his visa cancelled,
which you are liable to pay to my client company.
16. That at the time of taking over the operations of study
center of my client company, my client company‘s then
Centre Manager, Mr. Akhilesh Jha, handed over to you his
mobile Number 00971-50-4515576, which was used for the
company‘s business purposes and it was also agreed that
you shall be regularly paying all the dues pertaining to this
mobile number, but you with malafide intention did not pay
the bill of said mobile number amounting to AED 4300/- as a
result not only this mobile number was blocked by the
service provider but also the other mobile number 00971-50-
1487045 held by said Mr. Akhilesh Jha of my client company
was also blocked by the service provider, due to which my
client company was/is unable to avail banking facilities
through phone banking.
17.In view of the above facts, you are hereby called upon to :
a. Pay an amount of AED 625,775/- (Six Hundred Twenty Five
Thousand Seven Hundred and Seventy Five only on account of
short deposit of fee collected by you in the name of my client from
b. Pay an amount of AED 1,392,200/- on account of fee collected
by you against the installment due as on 31.1.2013 and did not
deposit in the bank account of my client company.
c. Pay an amount of AED 50,000/- on account of losses suffered by
my client company due to non-communication by you regarding
termination of agreement;
d. Pay an amount of AED 1,000,000/- on account of damages for
starting a same/similar business in violation of terms of the
agreement and unauthorizedly using data/information, manuals
etc. pertaining to my client company;
e. Pay an amount of AED 18120/- on account of settlement of wage
account and cancellation of visa of said Mr. Yogeshwar Singh
Batyal by my client company;
f. Pay an amount of AED 4300/- on account of payment of
outstanding dues of bill in respect of mobile No 00971-50-4515576
held by Mr. Akhilesh Jha, an employee and erstwhile center
manager of Dubai office of my client company;
g. To render the account of profits made by you since 15.12.2012
by enrolling the students under the mis-representation made by you
that you are a service provider of my client company; and h.
Immediately stop using for your wrongful gains the
data/information, manual etc. pertaining to my client company,
return the data/information, manual etc. to my client company and
also to give an undertaking not to use any data/information,
manuals pertaining to my client company, in any manner,
whatsoever.
That in case you fail to comply with the above legal
demands of my client company as stipulated in para 17 (a)
to (h) hereinabove, within a period of 10 days from the date
of receipt of this legal demand notice, I have definite
instructions from my client company to proceed legally
against you, as deemed fit, including but not limited to
lodging criminal complaint before the appropriate
authorities as well as to refer the dispute for arbitration as
provided under the agreement and you shall be solely
responsible for the cost and consequences. Further, you
are also liable to pay cost of legal charges incurred by my
client company for issuance of this legal notice amounting
to Rs.20,000/-. A copy of this legal notice is being retained
in my office for further necessary action.
50. This Court has carefully perused the legal notice and is unable to
come to a conclusion that this ‗Legal Demand cum Cease/Desist Notice‘
can qualify as a notice invoking arbitration under Section 21 of the Act.
This Court says so primarily for two reasons:
a) This letter merely states that the Respondent has a right to initiate
Arbitration proceedings in future, but does not intend to do so at
b) This letter does not name any person as an Arbitrator, nor the fact
that the person is being appointed as an Arbitrator in terms of the
Employment Agreement has been mentioned.
51. Other things which have to be taken into consideration before
coming to any conclusion is that whether the correspondences which have
been exchanged between the parties either pre-arbitration or post-
arbitration can be said to constitute sufficient notice to the Petitioner,
thus ensuring compliance with the statutory dictum envisaged under
52. It is not disputed that a pre-arbitration legal notice dated 6th
November 2013 (as discussed above) was received by the Petitioner
which, as held above, does not constitute a notice under Section 21 of the
Arbitration Act. Apart from this notice, the Petitioner has admitted the
receipt of the email dated 5th June 2014 from the Arbitrator to the
Petitioner which states that the arbitration proceedings were deferred in
view of the Delhi Bar Elections. The Respondent has claimed that other
communications were also made to the Petitioner which include first, a
letter dated January 2014 pertaining to appointment of Arbitrator;
secondly, a notice dated 10th March 2014, stating commencement of
arbitration (which was directed to be resend along with order dated 23rd
September 2014 to the respondent and the courier receipt of same is
claimed to be filed on 1st November 2014).
53. This Court has carefully perused the documents on record,
especially the notice dated 10th March 2014 by way of which the consent
of the Arbitrator was recorded and which stated commencement of
arbitration, but this Court is unable to find any documentary evidence on
record to satisfy its conscience that this notice was ever served upon the
Petitioner, by post or by email, as only speed post receipts evidencing
delivery to the Respondent herein have been brought on record.
Accordingly, this Court is satisfied that a proper notice under Section 21
of the Arbitration Act was not served upon the Petitioner and the dictum
of Shriram Transport (supra) is fully applicable to the facts and
circumstances of the present case.
54. Another question that arises for consideration is that:
III. Whether the impugned arbitral award is liable to be set
aside on the ground that the Arbitrator has wrongly applied
the Indian law as the substantive/governing law of the
55. The Petitioner has contended that the substantive law of the
contract was the UAE Federal Labour Law whereas, the Arbitrator has
relied on Indian law as the substantive law of the contract, as the
Arbitrator has relied on Indian laws and judicial pronouncements while
arriving at his findings. It has also been argued that under the UAE
Federal Labour Law, employment and/or labour disputes are not capable
of resolution by arbitration.
56. The position pertaining to various laws governing an arbitration
proceeding is no longer res integra and has been authoritatively dealt by
judicial pronouncements and has also been dealt by various acclaimed
authors around the globe. Before adverting to these decisions, it is
necessary to refer to the relevant clauses in the Employment Agreement
governing the parties.
This Employment Contract and the Employment shall be
governed by and construed in accordance with the United
Arab Emirates Federal Labour Law for the Private Sector
(being Federal Law No. 8 of 1980 as amended) only until
Sharjah regulatory authority puts into place separate
regulations concerning employment in Sharjah at which time
such separate regulations will govern this Employment
Contract and the Employment.
Any dispute arising under this agreement will be referred for
arbitration to a sole arbitrator appointed by the Managing
Director of Career Launcher India Ltd. and having its
jurisdiction/place at New Delhi, India.‖
57. Enka Insaat Ve Sanayi AS vs. OOO Insurance Company Chubb,
[2020] UKSC 38, is a watershed decision explaining the different laws
governing a contract which also contains an arbitration clause. The
Supreme Court of United Kingdom has beautifully explained the position
of law in the following words:
―43. It is rare for the law governing an arbitration clause to
be specifically identified (either in the arbitration clause
itself or elsewhere in the contract). It is common, however,
in a contract which has connections with more than one
country (or territory with its own legal system) to find a
clause specifying the law which is to govern the contract. A
typical clause of this kind states: ―This Agreement shall be
governed by and construed in accordance with the laws of
[name of legal system].‖ Where the contract also contains
an arbitration clause, it is natural to interpret such a
governing law clause, in the absence of good reason to the
contrary, as applying to the arbitration clause for the simple
reason that the arbitration clause is part of the contract
which the parties have agreed is to be governed by the
specified system of law.
45. There is a considerable body of English case law which
proceeds on the assumption that a choice of law for the
contract will normally apply to an arbitration clause in the
contract. The approach was summarised by Colman J in
Sonatrach Petroleum Corpn (BVI) v Ferrell International
Ltd [2002] 1 All ER (Comm) 627 at para 32:
―Where the substantive contract contains an express
choice of law, but the agreement to arbitrate contains
no separate express choice of law, the latter
agreement will normally be governed by the body of
law expressly chosen to govern the substantive
contract.‖
46. It has not generally been considered to make any
difference in this regard that the arbitration clause provides
for arbitration to take place in a different country from the
country whose law has been chosen to govern the contract.
Examples of decisions in which a choice of law clause in the
contract has been treated as applying to the arbitration
agreement despite the seat of arbitration being in a different
jurisdiction include: Cia Maritima Zorroza SA v Sesostris
653; Union of India v McDonnell Douglas Corpn [1993] 2
Lloyd‘s Rep 48, 49-50; Sumitomo Heavy Industries Ltd v Oil
and Natural Gas Commission [1994] 1 Lloyd‘s Rep 45, 57;
Deutz AG v General Electric Co (Thomas J, 14 April 2000)
at p 17; Peterson Farms Inc v C&M Farming Ltd [2004]
EWHC 121 (Comm); [2004] 1 Lloyd‘s Rep 603, paras 43-
46; Leibinger v Stryker Trauma GmbH [2005] EWHC 690
(Comm), para 38; and Svenska Petroleum Exploration AB v
Government of the Republic of Lithuania [2005] EWHC
2437 (Comm); [2006] 1 All ER (Comm) 731, paras 76-77.
58. Redfern and Hunter: Law and Practice of International
Commercial Arbitration, 6th ed (2015) at para 3.12 states as
―Since the arbitration clause is only one of many clauses in
a contract, it might seem reasonable to assume that the law
chosen by the parties to govern the contract will also govern
the arbitration clause. If the parties expressly choose a
particular law to govern their agreement, why should some
other law - which the parties have not chosen - be applied to
only one of the clauses in the agreement, simply because it
happens to be the arbitration clause?‖
59. Merkin on Arbitration Law, Issue 84 (2020), para 7.12,
―… even if there is no express contractual statement to that
effect, a choice of law clause for the entire agreement is
likely to be construed as extending to the arbitration clause.
There are numerous decisions to this effect … However, that
presumption may be ousted in appropriate circumstances
60. Dicey, Morris & Collins on The Conflicts of Laws, 15th ed
(2012) at para 16-017: states as under:
―If there is an express choice of law to govern the contract
as a whole, the arbitration agreement may also be governed
by that law.‖
61. The UK Supreme Court in Enka (supra) has also dealt with the
role of the law applicable to the seat of arbitration, i.e., the curial law in
the arbitration proceedings in the following manner:
―67. On this appeal Chubb Russia disputed the initial
premise that a choice of seat for an arbitration involves any
choice of law at all, procedural or substantive. Counsel for
Chubb Russia submitted that the application of the curial
law of the seat is something that follows automatically from
a choice of place of arbitration rather than being itself a
matter of choice. They cited as an analogy a hypothetical
case postulated by Redfern and Hunter: Law and Practice of
International Commercial Arbitration, 6th ed (2015), para
3.63, of an English motorist who takes her car to France.
Redfern and Hunter comment that:
―… it would be an odd use of language to say that
this notional motorist had opted for ‗French traffic
law‘; rather, she has chosen to go to France - and the
applicability of French law then follows
automatically. It is not a matter of choice.‖
68. We agree that it would be inapt to describe the tourist in
this example as having made a choice to be regulated by
French traffic law. But as Mr Dicker QC for Enka submitted,
it is difficult to conceive that a person‘s decision to visit
France might be informed by a desire to be governed by
French traffic law. By contrast, the nature and scope of the
jurisdiction exercised by the courts of a country over an
arbitration which has its seat there is a highly material
consideration in choosing a seat for the arbitration. That is
reinforced by the fact that the seat of an arbitration is a
legal concept rather than a physical one. A choice of place
as the seat does not dictate that hearings must be held, or
that any award must actually be issued, in that place. As the
Court of Appeal observed (at para 46), it is perfectly
possible to conduct an arbitration with an English seat at
any convenient location, anywhere in the world.
Furthermore, under section 53 of the Arbitration Act 1996,
unless otherwise agreed by the parties, where the seat of an
arbitration is in England and Wales, any award in the
proceedings shall be treated as made there, regardless of
where it was signed, despatched or delivered to any of the
parties (see also article 31(3) of the UNCITRAL Model Law
on International Commercial Arbitration adopted by the
United Nations Commission on International Trade Law on
21 June 1985). The point of agreeing a seat is to agree that
the law and courts of a particular country will exercise
control over an arbitration which has its seat in that country
to the extent provided for by that country‘s law. A choice of
seat can in these circumstances aptly be regarded as a
choice of the curial law.
69. As noted at the beginning of this judgment, however, the
curial law which applies to the arbitration process is
conceptually distinct from the law which governs the validity
and scope of the arbitration agreement. Whether a choice of
the curial law carries any implication that the parties
intended the same system of law to govern the arbitration
agreement - and, if so, the strength of any such implication -
must depend on the content of the relevant curial law.
70. In Carpatsky Petroleum Corpn v PJSC Ukrnafta [2020]
EWHC 769 (Comm); [2020] Bus LR 1284, the claimant
applied to enforce in England and Wales an arbitration
award made in Sweden. Enforcement was resisted on the
ground (among others) that there was no valid arbitration
agreement in the contract between the parties. This
argument depended on the assumption that the validity of the
arbitration agreement was governed by the law of Ukraine.
The contract provided for the ―law of substance of Ukraine‖
to apply ―on examination of disputes‖. Butcher J held (at
paras 67-71) that this was not a choice of Ukrainian law to
govern the arbitration agreement and that, in the
circumstances, the choice of Stockholm as the seat for any
arbitration demonstrated an implied choice that the validity
and interpretation of the arbitration agreement should be
governed by Swedish law. His reasons were that: (1) it was
reasonable to infer that the parties had deliberately chosen
a neutral forum to resolve their disputes and hence
“intended the law of that jurisdiction to determine issues as
to the validity and ambit of that choice”; and (2) by
choosing Sweden as the seat for the arbitration, the parties
agreed to the application of the Swedish Arbitration Act,
including section 48 which provides that, in the absence of
agreement on a choice of law to govern an arbitration
agreement with an international connection, the arbitration
agreement shall be governed by the law of the country in
which, by virtue of that agreement, the arbitration
proceedings have taken place or will take place. It follows
that, by providing for a Swedish seat, the parties were
impliedly agreeing that Swedish law should govern the
arbitration agreement.‖
62. In international commercial arbitrations, it is a well-established
rule that if the parties opt to have the arbitration's seat in a specific nation,
that nation's rules governing arbitration proceedings will take effect and
its courts will have supervisory jurisdiction over the arbitration. This
Court is persuaded with the submissions advanced by the learned senior
counsel for the Petitioner that the Arbitrator has grossly erred in applying
Indian laws to govern and adjudicate upon the disputes arising between
the parties even when there was a specific agreement to the effect that the
Employment Agreement will be governed by the UAE Federal Labour
Law. Accordingly, the impugned arbitral award is unsustainable on this
ground as well.
63. Now, it is necessary to determine what constitutes a violation of
the fundamental policy of Indian Law.
64. In Associate Builders vs. Delhi Development Authority, (2015) 3
SCC 49, the Hon‟ble Supreme Court clarified the meaning and scope of
„Fundamental Policy of Indian Law‟ in the context of Section 34 of the
Arbitration Act in the following manner: ―
28. In a recent judgment, ONGC Ltd. v. Western Geco
International Ltd., 2014 (9) SCC 263, this Court added three
other distinct and fundamental juristic principles which must
be understood as a part and parcel of the fundamental policy
of Indian law. The Court held-
35. What then would constitute the ―fundamental
policy of Indian law is the question. The decision in
ONGC [ONGC Ltd. v. Saw Pipes Ltd., (2003) 5 SCC
705] does not elaborate that aspect. Even so, the
expression must, in our opinion, include all such
fundamental principles as providing a basis for
administration of justice and enforcement of law in
this country. Without meaning to exhaustively
enumerate the purport of the expression
―fundamental policy of Indian law, we may refer to
three distinct and fundamental juristic principles that
must necessarily be understood as a part and parcel
of the fundamental policy of Indian law. The first and
foremost is the principle that in every determination
whether by a court or other authority that affects the
rights of a citizen or leads to any civil consequences,
the court or authority concerned is bound to adopt
what is in legal parlance called a ―judicial approach
in the matter. The duty to adopt a judicial approach
arises from the very nature of the power exercised by
the court or the authority does not have to be
separately or additionally enjoined upon the fora
concerned. What must be remembered is that the
importance of a judicial approach in judicial and
quasi-judicial determination lies in the fact that so
long as the court, tribunal or the authority exercising
powers that affect the rights or obligations of the
parties before them shows fidelity to judicial
approach, they cannot act in an arbitrary, capricious
or whimsical manner. Judicial approach ensures that
the authority acts bona fide and deals with the subject
in a fair, reasonable and objective manner and that its
decision is not actuated by any extraneous
consideration. Judicial approach in that sense acts as
a check against flaws and faults that can render the
decision of a court, tribunal or authority vulnerable to
challenge.
38. Equally important and indeed fundamental to the
policy of Indian law is the principle that a court and
so also a quasi judicial authority must, while
determining the rights and obligations of parties
before it, do so in accordance with the principles of
natural justice. Besides the celebrated audi alteram
partem rule one of the facets of the principles of
natural justice is that the court/authority deciding the
matter must apply its mind to the attendant facts and
circumstances while taking a view one way or the
other. Non-application of mind is a defect that is fatal
to any adjudication. Application of mind is best
demonstrated by disclosure of the mind and disclosure
of mind is best done by recording reasons in support
of the decision which the court or authority is taking.
The requirement that an adjudicatory authority must
apply its mind is, in that view, so deeply embedded in
our jurisprudence that it can be described as a
fundamental policy of Indian law.
39. No less important is the principle now recognised
as a salutary juristic fundamental in administrative
law that a decision which is perverse or so irrational
that no reasonable person would have arrived at the
same will not be sustained in a court of law.
Perversity or irrationality of decisions is tested on the
touchstone of Wednesbury principle of
reasonableness. Decisions that fall short of the
standards of reasonableness are open to challenge in
a court of law often in writ jurisdiction of the superior
courts but no less in statutory processes wherever the
same are available.
40. It is neither necessary nor proper for us to attempt
an exhaustive enumeration of what would constitute
the fundamental policy of Indian law nor is it possible
to place the expression in the straitjacket of a
definition. What is important in the context of the case
at hand is that if on facts proved before them the
arbitrators fail to draw an inference which ought to
have been drawn or if they have drawn an inference
which is on the face of it, untenable resulting in
miscarriage of justice, the adjudication even when
made by an Arbitral Tribunal that enjoys considerable
latitude and play at the joints in making awards will
be open to challenge and may be cast away or
modified depending upon whether the offending part
is or is not severable from the rest‖.
31. The third juristic principle is that a decision which is
perverse or so irrational that no reasonable person would
have arrived at the same is important and requires some
degree of explanation. It is settled law that where: 1. a
finding is based on no evidence, or 2. an arbitral tribunal
takes into account something irrelevant to the decision
which it arrives at; or 3. ignores vital evidence in arriving at
its decision, such decision would necessarily be perverse.
33. It must clearly be understood that when a court is
applying the ― ―public policy‖ test to an arbitration award,
it does not act as a court of appeal and consequently errors
of fact cannot be corrected. A possible view by the arbitrator
on facts has necessarily to pass muster as the arbitrator is
the ultimate master of the quantity and quality of evidence to
be relied upon when he delivers his arbitral award. Thus an
award based on little evidence or on evidence which does
not measure up in quality to a trained legal mind would not
be held to be invalid on this score1 . Once it is found that the
arbitrators approach is not arbitrary or capricious, then he
is the last word on facts......‖
65. Therefore, what really flows from above is that first, the learned
arbitrator must have taken a judicial approach; secondly, the principles of
natural justice must have been adhered; thirdly, the decision must not be
perverse.
IV. Whether the impugned arbitral award is liable to be set
aside under 34(2)(a)(ii) of the Arbitration Act on the ground
that there was no privity of contract between the Petitioner and
M/s CL EDUCATE Ltd., as the Employment Agreement was
between the Petitioner and CEITI?
66. The Petitioner has taken the argument that there was no valid
arbitration agreement between the parties. The Employment Agreement
dated 15th February 2010 containing the arbitration clause was entered
into between the Petitioner and CEITI, Dubai which is a separate and
distinct legal entity from the Respondent and as such, there is no privity
of contract and no arbitration agreement between the Petitioner and the
Respondent herein. Thus, the Arbitral Award is liable to be set aside
under Section 34(2)(a)(ii) of the Act.
67. This argument of the Petitioner raises the question as to whether
the „Group of Companies‘ doctrine is attracted to the facts and
circumstances of the present case to justify the arbitration proceedings
between M/s CL Educate Ltd. and the Petitioner. This concept was
created specifically by the French courts and International Chamber of
Commerce (ICC) arbitration tribunals. Its goal is to make it possible,
under specific circumstances, for non-signatory members of the same
group of companies to be included in an arbitration agreement that was
originally only signed by one or a small number of those companies.
Pietro Ferrario, The Group of Companies Doctrine in International
Commercial Arbitration: Is There any Reason for this Doctrine to
Exist? (Journal of International Arbitration) while dealing with the
‗Doctrine of Group of Companies‘ in detail has expressed the following
opinion.
In particular, as will be explained in more detail below, for
the application of the group of companies doctrine the
following conditions are necessary:
(a) the intention of all the parties involved to consider
the whole group as the contracting party without
giving importance to which company would conclude
or perform the contract. Thus, arbitration tribunals
will extend the arbitration agreement if they interpret
the parties' will in the sense that the parties meant all
units of the group to be party to the contract without
attaching importance to the form of the contract;
(b) the active participation of the non-signatories in
the negotiation, performance or termination of the
contract, showing the will of those companies to be
party to the contract and, as a consequence, to the
arbitration agreement even though they did not sign it.
Arbitration tribunals and courts give great importance
to this active role of the non-signatories and consider
it fundamental in order to apply the group of
companies doctrine.
As will be shown below in conclusion, the existence of a
group of companies is a factor taken into account by case
law, but it is not the sole ground on which the extension of
the arbitration agreement is based.
68. In Chloro Controls India Pvt. Ltd. v. Severn Trent Water
Purification Inc. & Ors., (2013) 1 SCC 641, the Hon‟ble Supreme Court
while dealing with Section 45 of the Arbitration Act, held as follows:
―71. Though the scope of an arbitration agreement is limited
to the parties who entered into it and those claiming under
or through them, the courts under the English law have, in
certain cases, also applied the ―group of companies
doctrine‖. This doctrine has developed in the international
context, whereby an arbitration agreement entered into by a
company, being one within a group of companies, can bind
its non signatory affiliates or sister or parent concerns, if
the circumstances demonstrate that the mutual intention of
all the parties was to bind both the signatories and the non-
signatory affiliates. This theory has been applied in a
number of arbitrations so as to justify a tribunal taking
jurisdiction over a party who is not a signatory to the
contract containing the arbitration agreement. [Russell on
72. This evolves the principle that a non-signatory party
could be subjected to arbitration provided these transactions
were with group of companies and there was a clear
intention of the parties to bind both, the signatory as well as
the nonsignatory parties. In other words, ―intention of the
parties‖ is a very significant feature which must be
established before the scope of arbitration can be said to
include the signatory as well as the non-signatory parties.
73. A non-signatory or third party could be subjected to
arbitration without their prior consent, but this would only
be in exceptional cases. The court will examine these
exceptions from the touchstone of direct relationship to the
party signatory to the arbitration agreement, direct
commonality of the subject-matter and the agreement
between the parties being a composite transaction. The
transaction should be of a composite nature where
performance of the mother agreement may not be feasible
without aid, execution and performance of the
supplementary or ancillary agreements, for achieving the
common object and collectively having bearing on the
dispute. Besides all this, the court would have to examine
whether a composite reference of such parties would serve
the ends of justice. Once this exercise is completed and the
court answers the same in the affirmative, the reference of
even non-signatory parties would fall within the exception
afore-discussed.‖
69. In Cheran Properties Ltd. v. Kasturi & Sons Ltd. & Ors., (2018)
16 SCC 413, a three judge bench of the Hon‟ble Supreme Court
interpreted the Doctrine of Group of Companies in the context of the
enforcement of a domestic arbitration award in the following words:
―23. As the law has evolved, it has recognised that modern
business transactions are often effectuated through multiple
layers and agreements. There may be transactions within a
group of companies. The circumstances in which they have
entered into them may reflect an intention to bind both
signatory and non-signatory entities within the same group.
In holding a non-signatory bound by an arbitration
agreement, the court approaches the matter by attributing to
the transactions a meaning consistent with the business
sense which was intended to be ascribed to them. Therefore,
factors such as the relationship of a non-signatory to a party
which is a signatory to the agreement, the commonality of
subject matter and the composite nature of the transaction
weigh in the balance. The group of companies doctrine is
essentially intended to facilitate the fulfilment of a mutually
held intent between the parties, where the circumstances
indicate that the intent was to bind both signatories and non-
signatories. The effort is to find the true essence of the
business arrangement and to unravel from a layered
structure of commercial arrangements, an intent to bind
someone who is not formally a signatory but has assumed
the obligation to be bound by the actions of a signatory.‖
70. In MTNL v. Canara Bank & Ors., (2020) 12 SCC 767, the
Hon‟ble Supreme Court held as follows:
―10.3. A non-signatory can be bound by an arbitration
agreement on the basis of the ―group of companies‖
doctrine, where the conduct of the parties evidences a clear
intention of the parties to bind both the signatory as well as
the non signatory parties. Courts and tribunals have
invoked this doctrine to join a non-signatory member of the
group, if they are satisfied that the non-signatory company
was by reference to the common intention of the parties, a
necessary party to the contract.
―10.5. The group of companies doctrine has been invoked by
courts and tribunals in arbitrations, where an arbitration
agreement is entered into by one of the companies in the
group; and the non-signatory affiliate, or sister, or parent
concern, is held to be bound by the arbitration agreement, if
the facts and circumstances of the case demonstrate that it
was the mutual intention of all parties to bind both the
signatories and the non-signatory affiliates in the group. The
doctrine provides that a non-signatory may be bound by an
arbitration agreement where the parent or holding company,
or a member of the group of companies is a signatory to the
arbitration agreement and the non signatory entity on the
group has been engaged in the negotiation or performance
of the commercial contract, or made statements indicating
its intention to be bound by the contract, the non-signatory
will also be bound and benefitted by the relevant contracts. [
Interim award in ICC Case No. 4131 of 1982, IX YB Comm
Arb 131 (1984); Award in ICC Case No. 5103 of 1988, 115
JDI (Clunet) 1206 (1988). See also Gary B. Born :
International Commercial Arbitration, Vol. I, 2009, pp.
10.6. The circumstances in which the ―group of companies‖
doctrine could be invoked to bind the non-signatory affiliate
of a parent company, or inclusion of a third party to an
arbitration, if there is a direct relationship between the party
which is a signatory to the arbitration agreement; direct
commonality of the subject-matter; the composite nature of
the transaction between the parties. A ―composite
transaction‖ refers to a transaction which is interlinked in
nature; or, where the performance of the agreement may not
be feasible without the aid, execution, and performance of
the supplementary or the ancillary agreement, for achieving
the common object, and collectively having a bearing on the
dispute.
10.7. The group of companies doctrine has also been
invoked in cases where there is a tight group structure with
strong organisational and financial links, so as to constitute
a single economic unit, or a single economic reality. In such
a situation, signatory and non-signatories have been bound
together under the arbitration agreement. This will apply in
particular when the funds of one company are used to
financially support or restructure other members of the
group. [ ICC Case No. 4131 of 1982, ICC Case No. 5103 of
71. Gary B. Born in his treatise on International Commercial
Arbitration indicates that:
“The principal legal basis for holding that a non signatory
is bound (and benefited) by an arbitration agreement …
include both purely consensual theories (e.g., agency,
assumption, assignment) and non-consensual theories (e.g.
estoppel, alter ego).
―Authorities from virtually all jurisdictions hold that a party
who has not assented to a contract containing an arbitration
clause may nonetheless be bound by the clause if that party
is an ‗alter ego‘ of an entity that did execute, or was
otherwise a party to, the agreement. This is a significant, but
exceptional, departure from the fundamental principle …
that each company in a group of companies (a relatively
modern concept) is a separate legal entity possessed of
separate rights and liabilities.
the group of companies doctrine is akin to principles of
agency or implied consent, whereby the corporate
affiliations among distinct legal entities provide the
foundation for concluding that they were intended to be
parties to an agreement, notwithstanding their formal status
as non-signatories.‖
72. This Court has perused the Employment Agreement which has
been entered into between the Petitioner and the Respondent. This
Agreement itself was executed on the letter-head of Career Launcher
(M/s CL EDUCATE Ltd. was previously known as Career Launcher. In
addition to this, it has been clearly mentioned in the Employment
Agreement itself that CEITI is authorized to run the Career Launcher test-
prep courses in UAE. The legal notice dated 6th November 2013 itself has
been sent on behalf of M/s CL Educate Ltd. to which the Petitioner had
responded.
73. However, this Court is conscious of the dictum of the Hon‟ble
Supreme Court in Cox and Kings Limited vs. SAP India Pvt. Ltd.,
(2022) 8 SCC 1, wherein a three judge bench of the Hon'ble Supreme
Court had doubted the application of this Doctrine as well as the decision
in Chloro Controls (supra) and hence, referred the matter to a larger
bench for further consideration. It was held as follows:
"36. The interpretation of Chloro Controls was further
expanded in the three-Judge Bench decision of this Court
in Cheran Properties Ltd. v. Kasturi & Sons Ltd. In that
case, this Court interpreted Section 35 of the Arbitration Act
to enforce an award against a non-signatory, even though it
did not participate in the proceedings.
37. This Court in Reckitt Benckiser (India) (P)
Ltd. v. Reynders Label Printing (India) (P) Ltd. [Reckitt
Benckiser (India) (P) Ltd. v. Reynders Label Printing (India)
wherein the two-Judge Bench of this Court refused to apply
the ―Group of Companies‖ doctrine as the applicant failed
to prove the commonality of intention of the respondents to
be bound by the arbitration agreement : (SCC pp. 64 & 74,
―4. Keeping in mind the exposition in Chloro
Controls [Chloro Controls India (P) Ltd. v. Severn Trent
SCC (Civ) 689] … In other words, whether the
indisputable circumstances go to show that the mutual
intention of the parties was to bind both the signatory as
well as the non-signatory parties, namely, Respondent 1
and Respondent 2, respectively, qua the existence of an
arbitration agreement between the applicant and the
said respondents.
12. … Thus, Respondent 2 was neither the signatory
to the arbitration agreement nor did have any causal
connection with the process of negotiations preceding
the agreement or the execution thereof, whatsoever. If
the main plank of the applicant, that Mr Frederik
Reynders was acting for and on behalf of Respondent 2
and had the authority of Respondent 2, collapses, then it
must necessarily follow that Respondent 2 was not a
party to the stated agreement nor had it given assent to
the arbitration agreement and, in absence thereof, even if
Respondent 2 happens to be a constituent of the group of
companies of which Respondent 1 is also a constituent,
that will be of no avail. For, the burden is on the
applicant to establish that Respondent 2 had an
intention to consent to the arbitration agreement and be
party thereto, maybe for the limited purpose of
enforcing the indemnity Clause 9 in the agreement,
which refers to Respondent 1 and the supplier group
against any claim of loss, damages and expenses,
howsoever incurred or suffered by the applicant and
arising out of or in connection with matters specified
therein. That burden has not been discharged by the
applicant at all. On this finding, it must necessarily
follow that Respondent 2 cannot be subjected to the
proposed arbitration proceedings. Considering the
averments in the application under consideration, it is
not necessary for us to enquire into the fact as to which
other constituent of the group of companies, of which the
respondents form a part, had participated in the
negotiation process.‖
38. In the Division Bench decision of this Court
in MTNL v. Canara Bank [MTNL v. Canara Bank, (2020) 12
SCC 767] , it was observed that the group of companies
doctrine can be utilised to bind a third party to an
arbitration, if a tight corporate group structure constituting
a single economic reality existed. The Court held as under :
(SCC pp. 779-80, para 10)
―10.6. The circumstances in which the ―Group of
Companies‖ doctrine could be invoked to bind the non-
signatory affiliate of a parent company, or inclusion of a
third party to an arbitration, if there is a direct
relationship between the party which is a signatory to the
arbitration agreement; direct commonality of the subject-
matter; the composite nature of the transaction between
the parties. A ―composite transaction‖ refers to a
transaction which is interlinked in nature; or, where the
performance of the agreement may not be feasible
without the aid, execution, and performance of the
supplementary or the ancillary agreement, for achieving
the common object, and collectively having a bearing on
the dispute.
10.7. The group of companies doctrine has also been
invoked in cases where there is a tight group structure
with strong organisational and financial links, so as to
constitute a single economic unit, or a single economic
reality. In such a situation, signatory and non-signatories
have been bound together under the arbitration
agreement. This will apply in particular when the funds
of one company are used to financially support or
restructure other members of the group. [ ICC Case No.
4131 of 1982 : (1984) 9 Yearbook of Commercial
Arbitration 131; ICC Case No. 5103 of 1988 : (1991)
39. We may notice that these cases have been decided by
this Court, without referring to the ambit of the phrase
―claiming through or under‖ as occurring under Section 8
of the Arbitration Act.
40. The ratio of the Chloro Controls case [Chloro Controls
India (P) Ltd. v. Severn Trent Water Purification Inc., (2013)
1 SCC 641 : (2013) 1 SCC (Civ) 689] alludes to the
subjective intention of parties to be bound by arbitration
agreement when the parties have clearly not been signatory
to the agreement. Reconciling the two is difficult and
requires exposition by this Court.
41. It may be noted that the doctrine, as expounded, requires
the joining of non-signatories as ―parties in their own
right‖. This joinder is not premised on non-signatories
―claiming through or under‖. Such a joinder has the effect
of obliterating the commercial reality, and the benefits of
keeping subsidiary companies distinct. Concepts like single
economic entity are economic concepts difficult to be
enforced as principles of law.
42. The areas which were left open by this Court in Chloro
Controls case [Chloro Controls India (P) Ltd. v. Severn
SCC (Civ) 689] has created certain broad-based
understanding of this doctrine which may not be suitable and
would clearly go against distinct legal identities of
companies and party autonomy itself. The aforesaid
exposition in the above case clearly indicates an
understanding of the doctrine which cannot be sustainable in
a jurisdiction which respects party autonomy. There is a
clear need for having a re-look at the doctrinal ingredients
concerning the group of companies doctrine.
43. Internationally, the group of companies doctrine has
been accepted in varying degrees. Swiss Courts usually do
not recognise such a doctrine under their Switzerland de
lege lata. [ Award in Geneva Chamber of Commerce Case of
has observed as under:
―… Mr Hoffmann suggested beguilingly that it would be
technical for us to distinguish between parent and subsidiary
company in this context; economically, he said, they were
one. But we are concerned not with economics but with law.
The distinction between the two is, in law, fundamental and
cannot here be bridged.‖ [Bank of Tokyo Ltd. v. Karoon,
1987 AC 45, p. 64 : (1986) 3 WLR 414 (CA)]
51. In view of the aforesaid discussion, we feel it
appropriate to refer the aspect of interpretation of
“claiming through or under” as occurring in amended
Section 8 of the Arbitration Act qua the doctrine of group
of companies to a larger Bench to provide clarity on this
aspect. The law laid down in Chloro Controls case [Chloro
Controls India (P) Ltd. v. Severn Trent Water Purification
Inc., (2013) 1 SCC 641 : (2013) 1 SCC (Civ) 689] and the
cases following it, appear to have been based, more on
economics and convenience rather than law. This may not
be a correct approach. The Bench doubts the correctness of
the law laid down in Chloro Controls case [Chloro
Controls India (P) Ltd. v. Severn Trent Water Purification
Inc., (2013) 1 SCC 641 : (2013) 1 SCC (Civ) 689] and cases
following it.
74. Accordingly, as a matter of utmost judicial propriety, as the larger
bench of the Hon‟ble Supreme Court is seized of the issue at hand, this
Court is not inclined to render any judicial finding on the issue of
application of the Doctrine of Group of Companies in the facts and
circumstances of the present case. It is also to be noted that findings on
this issue do not tilt the conclusion which is reached in the present case
on the findings already recorded on the other issues.
75. In view of the discussion aforesaid on facts and law, this Court is
satisfied that there was no effective delivery of arbitral award to the
Petitioner and the present case is fully covered by the decisions of the
Hon‟ble Supreme Court in Tecco Trichy (supra), Benarsi Krishna
(supra) and ARK Builders (supra). Accordingly, the present application
is within the purview of limitation as envisaged under Section 34(3) of
the Arbitration Act. This Court is also satisfied that no mandatory notice
under Section 21 of the Arbitration Act was given to the Petitioner, in
view of the dictum of the Division Bench of this Court in Shriram
Transport (supra). This Court is also satisfied that the Arbitrator has
applied wrong governing law while adjudicating the disputes between the
parties. The entire dispute was to be adjudicated by the substantive law of
the Contract which was the UAE Federal Labour Law in view of the
dictum of the Supreme Court of United Kingdom in Enka Insaat (supra).
The impugned arbitral award is contrary to settled norms of „Fundamental
Policy of Indian Law‟ in view of the dictum of the Hon‟ble Supreme
Court in Associate Builders (supra).
76. Accordingly, the impugned arbitral award dated 16th March 2015
passed by the learned sole arbitrator, Mr. Divya Darshan Sharma in the
case titled as „CL Educate Ltd. vs. Monika Oli’ is quashed and set aside.
The Petition stands allowed in the above terms.
77. Pending applications, if any, also stand disposed of.
78. The judgment be uploaded on the website forthwith.
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The Delhi High Court has ruled that delivery of arbitral award, to be effective under the Arbitration and Conciliation Act, 1996 (A&C Act), must be made to a person who has direct knowledge of the arbitral proceedings. The bench of Justice Chandra Dhari Singh remarked that the word ‘party’ in Section 34(3) of the A&C Act means party to the arbitral proceedings and does...
The Delhi High Court has ruled that delivery of arbitral award, to be effective under the Arbitration and Conciliation Act, 1996 (A&C Act), must be made to a person who has direct knowledge of the arbitral proceedings. The bench of Justice Chandra Dhari Singh remarked that the word ‘party’ in Section 34(3) of the A&C Act means party to the arbitral proceedings and does not include an agent of the party as well.
The Court further held that, delivery of the arbitral award to the employee of an entity in which the award debtor is a shareholder but the arbitral dispute does not pertain to that entity, would not constitute as proper delivery in terms of the A&C Act.
Section 34 (3) of the A&C Act provides that an application for setting aside an award must be made within three months from the date on which the party making the application had received the arbitral award.
The petitioner, Monika Oli, and the respondent, M/s CL Educate Ltd., entered into an Employment Agreement. After certain disputes arose between the parties under the Agreement, the respondent invoked the arbitration clause and an ex-parte arbitral award was passed against the petitioner. Challenging the arbitral award, the petitioner filed a petition under Section 34 of the A&C Act before the Delhi High Court.
The petitioner, Monika Oli, submitted before the High Court that the arbitral award was illegal as she never received the notice under Section 21 of the A&C Act. She argued that issuance of notice under Section 21 is mandatory and its non-issuance renders the entire arbitral proceedings as non-est and void ab initio.
The petitioner added that she never received any communication from the Arbitrator indicating his appointment and consent to act as an Arbitrator, or any notice directing her to appear in the arbitral proceedings.
The petitioner contended that she gained knowledge of the Arbitral Award in 2022 when she received a notice from a Dubai Court in the execution proceedings filed by the respondent. She argued that receipt of the arbitral award which was passed in 2015, by an employee of the Company in which the petitioner is a minority shareholder, cannot be construed as delivery to the petitioner.
The respondent, M/s. CL Educate, argued that the petition was barred by limitation. It further argued that notice under Section 21 was duly issued to the petitioner by way of a legal notice.
The Court noted that Section 31 (5) of the A&C Act requires that a signed copy of the arbitral award shall be delivered to each party. The term “party” is defined in Section 2 (h) as meaning “a party to an arbitration agreement”. It noted that as per the decision of the Apex Court in Union of India v. Tecco Trichy Engineers & Contractors, (2005) 4 SCC 239, the term “party” has to be read as defined in Section 2(h), unless the context otherwise requires.
Further, the Court took note that delivery of arbitral award on an agent or advocate of a party would not constitute as proper delivery in terms of Sections 31(5) and 34(3), in view of the Supreme Court’s decision in Benarsi Krishna Committee & Ors. v. Karmyogi Shelters Pvt Ltd., (2012) 9 SCC 496.
Also, the Court reckoned that the period of limitation will commence only from the date on which the order/award was received by the relevant party in the manner prescribed by the law. (State of Maharashtra v. ARK Builders (P) Ltd., (2011) 4 SCC 616)
The High Court thus concluded that the word ‘party’ in Section 34(3) means party to the arbitral proceedings and does not include an agent of the party as well. The bench added: “The delivery to be effective and in consonance with the legislative scheme of Arbitration Act must be made to a person who has direct knowledge of the arbitral proceedings and who would be the best person to understand and appreciate the arbitral award being connected with the dispute at hand”.
Observing that the petitioner was involved in the dispute in an individual capacity and not in relation to her position as a minority shareholder of her Company, the Court concluded that no valid delivery of arbitral award was affected in the present case.
“Nothing has been brought in record to portray that Mr. Baxi had accepted the arbitral award on behalf of the Petitioner. Therefore, delivery to the employee of an entity in which the Petitioner is a shareholder but the arbitration dispute did not pertain to that entity, would not constitute as a proper delivery in terms of the Arbitration Act”, the Court said.
The bench added: “This Court is conscious that it has been close to 8 years since the award has been passed and a pedantic approach ought not to be taken, however, justice cannot be thwarted only because substantial time has elapsed when there is nothing on record to substantiate compliance with the mandatory provisions of Section 34(3) read with Section 31(5) of the Arbitration Act particularly, in view of the decision in Benarsi Krishna Committee (supra).”
The Court took note that the Division Bench of the Delhi High Court in Shriram Transport Finance Co. Ltd. v. Shri Narendra Singh, (2022) SCC OnLine Del 3412, has recently ruled that compliance with Section 21 of A&C Act is mandatory in nature and not a matter of choice. Further, if no notice under Section 21 is received by the concerned party, there can be no commencement of arbitral proceedings at all, the Division Bench had held.
Referring to the ‘Legal Demand cum Cease/Desist Notice’ issued by the respondent, the High Court concluded that the said Notice/Letter merely stated that the respondent has a right to initiate arbitral proceedings in future; also, the said Notice did not name any person as an Arbitrator. Thus, the said Legal Notice cannot qualify as a notice invoking arbitration under Section 21 of the A&C Act, the Court said.
“Accordingly, this Court is satisfied that a proper notice under Section 21 of the Arbitration Act was not served upon the Petitioner”, the Court said.
The bench further conceded that the Arbitrator had grossly erred in applying Indian laws to adjudicate the disputes between the parties despite a specific agreement to the effect that the contract would be governed by the UAE Federal Labour Law, under which employment and labour disputes are non-arbitrable.
Since there was no effective delivery of arbitral award to the petitioner, the Court concluded that the petition was within the limitation period envisaged under Section 34(3). Holding that the arbitral award was contrary to the settled norms of “Fundamental Policy of Indian Law”, the Court allowed the petition and set aside the award.
Case Title: Monika Oli versus M/s CL Educate Ltd.
Counsel for the Petitioner: Mr. Jayant Mehta, Senior Advocate with Mr. Karan Lahiri, Mr. Akshat Gupta, Mr. Pranav Jain, Ms. Sakshi Tikmany, Ms. Sayani Dey and Mr. Raghav Bhatia, Advocates
Counsel for the Respondent: Mr. Dhruv Mehta, Senior Advocate with Mr. Rajat Arora, Ms. Mariya Shahab and Mr. Shyam Agarwal, Advocates
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ivil Appeal No. 1589 of 1988 etc.
From the Order dated 6.1.1988 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. 2085 of 1985A in Order No. 5 of 1988 A. K. Parasaran, Attorney General, A.K. Ganguli, K. Swamy, P. Parmeswaran and Sushma Suri for the Appellant.
R.N. Bajoria, S.K. Bagaria, Padam Khaita, Vivek Gambhir, Praveen Kumar, S.K. Bagga and R.K. Mehta for the Respond ents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
These appeals are at the in stance of the revenue under section 35 L of the Central Excises & Salt Act, 1944 (hereinafter referred as to 'the Act ').
Civil Appeal No. 1589 appeal arises out of Order No. 5 of 1988 A passed by the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi (hereinafter referred to as 'the Tribunal ').
The. respondent used to manufacture different varieties of printing paper including wrapping paper falling under Item No. 17(1) of the erstwhile Central Excise Tariff in their factory at Bansberia, District Hubli.
It is the appel lant 's case that the respondent had violated the 1020 provisions of Rule 9(1), Rule 173 F and Rule 173 G of the Central Excise Rules, 1944 inasmuch as they had removed 4,000 kgs.
of wrapping paper under Gate Pass No. A 460 dated 9th February, 1984 and 485 dated 17th February, 1984 valued at Rs. 13,200 without payment of central excise duty.
Show cause notice was issued to the respondent as to why appro priate duty of excise amounting to Rs.3,600 (basic), Rs. 180 (special) and Rs. 16.50 (cess) totalling Rs.3,796.50 should not be recovered from them on the said quantity at the rate of Rs.900 per M.T. and special duty at the rate of 5% of basic duty and cess 1/8% on value.
Notice to show cause as to why penalty should not be imposed was also issued.
Cause was shown by the respondent.
It was the contention of the respondent that there was no infringement of the impugned provision and no duty was required to be paid on the excisa ble goods if it was captively consumed or utilised in the same factory as component part of the finished goods falling under the same tariff item and specified in Rule 56(a) of the Central Excise Rules, 1944.
It was further stated that in the instant case, wrapped paper manufactured was captive ly consumed and utilised as component part of other varie ties of paper.
Wrapping, it was contended, of finished product by wrapping paper is a process incidental and ancil lary to the completion of manufactured product under section 2(f) of the Act and wrapping is used as a component part of finished excisable goods attracting the benefit of the notification No. 18A 83 CE dated 9th July, 1983.
The Super intendent (Technical) of Central Excise held otherwise.
The respondent preferred an appeal before the Collector (Ap peals), Calcutta.
The respondent contended before the Col lector that they were entitled to the benefit of notifica tion and it is well settled law in view of several judgments of High Court and orders of the Tribunal that wrapping of paper was a process incidental or ancillary to the comple tion of manufacture of paper, as the printing and writing paper could not be sold in the market without being packed and wrapped by wrapping paper.
The Collector (Appeals), however, rejected the claim to exemption in respect of such wrapping paper in terms of the proviso to Rule 9(1).
There was an appeal to the Tribunal.
The Tribunal referred to its own decision in the case of Collector of Central Excise, Bhubneshwar vs Orient Paper Mills, Brajraj Nagar, 135, which is the subject matter of the other appeal involved herein, and set aside the order of Collector.
Similar is the case in Civil Appeal Nos.
3760 62 of 1988.
In that case, M/s. Orient Paper Mills, Brajraj Nagar, respondents, were manufacturers of various types of paper and paper board.
They were also the manufacturers of wrap ping paper for packing or wrapping of 1021 other varieties of paper.
Under the relevant notification, the Central Government had exempted duty in respect of goods if these were consumed or utilised in a place where such goods were produced or manufactured under relevant rule either as raw materials or component parts for the manufac ture.
Therefore, in order to get the benefit of non levy of excise duty on wrapping paper, it had to be established in both these appeals that the wrapping papers were consumed or utilised by the respondent assessees as component parts or raw materials for the finished products.
The Collector (Appeals) in his order observed that when wrapping paper was used for making paper reams/reals, it lost its original identity as wrapping paper and became a part and parcel of the paper ream/real and as such available for the benefit of amended Rules.
Revenue disputed this finding.
It was contended that the wrapping paper was not utilised or consumed in the manufacture of other paper.
On behalf of the revenue, it was contended before us in these appeals that in order to be non dutiable, the wrapping paper must be either component part or raw material and must be consumed or utilised in the manufacture of the finished products.
Wrapping paper cannot, it was contended, be deemed to be component part because it did not become an integral part of the packed paper.
In this connection, on behalf of the revenue, learned Attorney General drew our attention to the fact that reliance had been placed on the decision of the Kerala High Court in Paul Lazar vs State of Kerala, [1977] 40 STC 437.
On behalf of the respondent, however, Shri Bajoria placed reliance on section 2(f) of the Act which includes any process incidental or ancillary to the completion of a manufactured product.
Therefore, it was urged that all processes leading upto the stage of goods, when the goods become completed for marketing would be within the process of marketing.
In that view of the situa tion, it was urged that wrapping paper was raw material or component part of the wrapped paper.
It was further urged that revenue had itself considered the stage of wrapped or packed paper as the R.G.I. stage, i.e., the stage at which goods should be entered in the statutory production regis ter. 'Manufacture ' in the sense it is used in the excise law, was not complete until and unless wrapping was done.
It is law now that excise is a duty on manufacture.
Manufacture is the process or activity which brings into existence new, identifiable and distinct goods.
Goods have been understood to be articles known as identifiable articles known in the market as goods and marketed or marketable in the market as such.
See in this connection the observations of this Court in Bhor Industries Ltd., Bombay vs Collector of Central Excise Bombay, 602; South Bihar Sugar Mills Ltd., etc.
vs Union of India & Ors.
, ; ; Union of India vs Delhi Cloth & General Mills Ltd., [1963] Supp. 1 SCR 586 and Union Carbide India Ltd. vs Union of India and Ors., See also the decision of this Court in Civil Appeal No. 2215(NA) of 1988 Collector of Central Excise, Baroda vs M/s Ambalal Sarabhai Enterprises, judgment delivered on 10th August, 1989.
The finished goods were cut to size and packed paper which, according to the Indian Standard and trade practice, consisted of the wrapping paper and the wrapped paper.
In South Bihar Sugar Mills Ltd. 's, case (supra), it was held by this Court that the duty is levied on goods.
As the Act does not define goods, the legislature must be taken to have used that word in its ordinary, dictionary meaning.
The dictionary meaning of the expression is that to become 'goods ' it must be something which can ordinarily come to the market to be bought and sold and is known to the market as such.
The Tribunal found, and there was material for the Tribunal to do so, that the market in which articles in question were sold were paper packed and wrapped in paper.
Therefore, anything that enters into and forms part of that process must be deemed to be raw material or component part of the end product and must be deemed to have been used in completion or manufacture of the end product.
This Court in the case of Empire Industries Ltd. & Ors.
vs Union of India & Ors.
, ; has explained the concept of 'process ' in Excise Law.
In view of the principle laid down therein and other relevant decisions, processes incidental or ancillary to wrapping are to be included in the process of manufacture, manufacture in the sense of bringing the goods into existence as these are known in the market is not complete until these are wrapped in wrapping paper.
In J.K. Cotton Spinning and Weaving Mills Co. Ltd. vs Sales Tax Officer, [1965] 16 STC 563 (SC), this Court while construing the expression 'in the manufacture or processing of goods for sale ' in the context of Sales Tax Law, though the concept is different under the Excise Law, has held that manufacture of goods should normally encompass the entire process carried on by the dealer of converting raw materials into finished goods.
Where any particular process, this Court further emphasised, is so integrally connected with the ultimate production of goods that, but for that process, manufacture or processing of goods would be commercially inexpedient, articles required in that process, would fall within the expression 'in the manufacture of goods '.
The Tribunal on the appraisement of all the relevant facts in the light of the principles indicated before, upheld its own decision in the case of Orient Paper Mills.
and in both the appeals accepted 1023 the manufacturer 's contentions and dismissed the appeal.
The revenue contends that the Tribunal has erred.
Shri Bajoria for the respondent, drew our attention to the decision of this Court in Collector of Central Excise vs Jay Engineering Works Ltd., There the respondent was the manufacturer of electric fans, and brought into its factory nameplates under Tariff Item 68 of the erstwhile Central Excise Tariff.
The nameplates were affixed to the fans before marketing them.
The respondent claimed the benefit of proforma credit in terms of notifica tion No. 201/79 dated 4th June, 1979, which was for the purpose of relief on the duty of excise paid on goods fall ing under Tariff Item 68, when these goods were used in the manufacture of other excisable goods.
The said notification stated that in supersession of the Notification No. 178/77 of the Central Excise dated 18th June, 1977, all excisable goods on which duty of excise was leviable and in the manu facture of which any goods falling under Item No. 68 have been used, were exempt from so much of the duty of excise leviable thereon as was equivalent to the duty of excise already paid on the inputs.
In that case, the question before the Tribunal was whether the nameplates could be considered as component part of the electric fan, so as to be eligible for proforma credit under the exemption notifi cation.
It was found by the Tribunal that no electric fan could be removed from the factory for being marketed without the nameplate.
The Tribunal also noted in that case that even though it could be said that electric fans could func tion without the nameplates, for actual marketing of the fans, the affixation of the nameplate was considered an essential requirement.
To be able to be marketed or to be marketable, it ap pears to us, in the light of facts in the appeals, that it was an essential requirement to be goods, to be wrapped in paper.
Anything required to make the goods marketable, must form part of the manufacture and any raw material or any materials used for the same would be component part for the end product.
In our opinion, the Tribunal was right in the view it took.
There is no ground to interfere in these appeals.
Before we conclude, we must further observe that Shri Bajoria drew our attention to the judgment and order of the Tribunal in Appeal No. ED(SB)A. No. 2734 83C (Collector of Central Excise vs Orient Paper Mills), where the appeal has been preferred and in the ' petition in appeal to this court by the revenue under section 35L(b) of the Act, where the question involved was whether the proforma credit under rule 56A of the Central Excise Rules, 1944 in respect of said 1024 packing and wrapping paper used for packing admissible or not is punishable or not, the revenue has pleaded that the unit of paper for sale was 'ream ' duly packed in wrapping paper and the real is cured and such real is also wrapped in the wrapping paper.
Therefore, from that statement, it further appears that such ream or real are wholesale pack ages and are stored in packed condition.
If that is the stand of the then it cannot be contended that wrapping paper is not integral part of the manufacture.
If that is so, any material utilised must be component part of the raw material used or consumed in the finished products.
Apart from that, under rule 56A of the Rules, the assessee would be entitled to the benefit of deduction of the duty to be charged on all wrapping papers, if any.
Nothing contrary to the aforesaid was indicated to us by the revenue though asked to do so.
In the aforesaid view of the matter, this question involved in these appeals is really of academic interest.
These appeals, however, have no merit for the reasons indicated above and are accordingly dismissed without any order as to costs.
G.N. Appeals dismissed.
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The respondent, in the first of these appeals, was manufacturing different varieties of printing paper includ ing wrapping paper failing under Item No. 17 of the erst while Central Excise Tariff.
The appellant issued a show cause notice to the Respondent for the alleged violation of Rules 9(1), 173 F and 173 G of the Central Excise Rules, 1944 in respect of wrapping paper removed outside the Facto ry without payment of Central Excise duty, and for imposi tion of penalty.
Showing cause, the Respondent contended that the wrapping paper was captively consumed and utilised as component :art of other varieties of paper and as such no duty was payable.
Reliance was placed on section 2(f) of the and Notification No. 18A/83 CE dated 9th July, 1983.
The Superintendent (Techni cal) having held otherwise, the respondent preferred an appeal to the Collector (Appeals).
The Collector rejected the claim.
On appeal, the Customs, Excise and Gold (Control) Appellate Tribunal referred to its own decision, which is the subject matter of the other appeals herein and set aside the order of the Collector.
The facts leading to the other appeals are similar, and the issue involved is the same.
The Revenue has filed the appeals under section 35 L of the Central Excises & Salt Act.
On behalf of the Revenue, it was contended that wrapping paper cannot be deemed to be component part because it did not become an integral part of the packed paper.
The assessee, however contended that wrapping paper was raw material or component part of the wrapped paper, and relied on section 2(f) of the Act which includes any process incidental or ancillary to the 1018 completion of a manufactured product.
It was also urged that Revenue had itself considered the stage of wrapped or packed paper as the stage at which goods should be entered in the statutory production register.
Dismissing the appeals, HELD: 1. 'Manufacture ' in the sense it is used in the excise law, was not complete until and unless wrapping was done.
It is the law now that excise is a duty on manufac ture.
Manufacture is the process or activity which brings into existence new, identifiable and distinct goods.
Goods have been understood to be articles known as identifiable articles known in the market as goods and marketed or mar ketable in the market as such.
The finished goods were cut to size and packed paper which, according to the Indian standard and trade practice, consisted of the wrapping paper and the wrapped paper.
Duty is levied on goods.
As the Act does not define goods, the legislature must be taken to have used that word in its ordinary, dictionary meaning.
The dictionary meaning of the expression is that to become 'goods ' it must be something which can ordinarily come to the market to be bought and sold and is known to the market as such.
The Tribunal found, and there was material for the Tribunal to do so, that the market in which articles in question were sold were paper packed and wrapped in paper.
Therefore, anything that enters into and forms part of that process must be deemed to be raw material or component part of the end product and must be deemed to have been used in completion or manufacture of the end product.
[1021G H; 1022A D] Bhor Industries Ltd., Bombay vs Collector of Central Excise, Bombay, ; ; South Bihar Sugar Mills Ltd., etc.
vs Union of India & Ors.
, ; ; Union of India vs Delhi Cloth & General Mills Ltd., [1963] Suppl.
I SCR 586; Union Carbide India Ltd. vs Union of India and Ors.
, ; Collector of Central Excise, Baroda vs M/s Ambalal Sarabhai Enterprises, ; relied on.
Processes incidental or ancillary to wrapping are to be included in the process of manufacture, manufacture in the sense of bringing the goods into existence as these are known in the market, is not complete until these are wrapped in wrapping paper.
Manufacture of goods should normally encompass the entire process carried on by the dealer of converting raw materials into finished goods.
Where any particular process, is so integrally connected with the ultimate production of goods that, but for that process, manufacture or processing of 1019 goods would be commercially inexpedient, article required in that process, would fail within the expression 'in the manufacture of goods '.
[1022E G] Empire Industries Ltd. & Ors.
vs Union of India & Ors.
, ; ; J.K. Cotton Spinning and Weaving Mills Co. Ltd. vs Sales Tax Officer, [1965] 16 STC 563 (SC); relied on.
[1023F] 3.
To be able to be marketed or to be marketable, in the light of facts in the appeals, it was an essential require ment to be goods, to be wrapped in paper.
Anything required to make the goods marketable, must form part of the manufac ture and any raw material or any material used for the same would be component part for the end product.
Collector of Central Excise vs Jay Engineering Works Ltd., ; referred to.
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Counsel for Appellant :- Mr. Anurag Shukla (Amicus Curiae)
Counsel for Respondent :- Government Advocate.
1. This Criminal Appeal has been filed against the judgment
and order dated 16.09.2008 passed in Sessions Trial No.796 of
2006, arising out of Crime No.50 of 2006, under Section 376 of
Indian Penal Code,1860 (in short I.P.C.), Police Station
Machhrehta, District Sitapur passed by by Additional District and
Sessions Judge, Court No.8, Sitapur whereby the convict/appellant
was held guilty for the offence punishable under Section 376 of
I.P.C. and sentenced to life imprisonment. The trial court also
directed the convict/appellant to pay Rs.25,000/- as compensation
to the victim.
2. The facts necessary for disposal of this appeal, shorn of
unnecessary details are as under:-
(i) A First Information Report (in short FIR) was registered
at Case Crime No.50 of 2006, under Section 376/452 of
I.P.C. at Police Station Machhrehta District Sitapur on the
basis of written report presented by the complainant
Shyamlal. It was narrated in the written report that on
19.03.2006 at about 12:30 PM his daughter (x) aged about
one year was playing on the platform situated infront of his
house. Shrawan Kumar Maurya, resident of the village of
complainant picked up her on the pretext of giving her
toffee. He (convict) took the victim in his thatched house
and committed rape on her. Upon hearing the cry of the girl
Sharadendu Dixit, resident of the same village, Suman wife
of the complainant and Ram Kishore, brother-in-law of the
complainant reached on the spot, then the convict/appellant
ran away. The condition of his daughter was serious.
(ii) The FIR was registered on 19.03.2006 on the date of
incident at about 3:15 PM. Investigation started, the girl was
medically examined on the same day at about 6:30 PM at
Dufrin Hospital, Sitapur. After investigation a chargesheet
under Section 376 of I.P.C. was submitted against the
convict/appellant in the Court of Magistrate concerned. The
Magistrate concerned took cognizance and committed the
case for trial to the Court of sessions. The Court of Sessions
framed charge under section 376 of I.P.C. against the
convict/appellant. He denied the charge and claimed to be
(iii) The prosecution in order to prove its case examined nine
witnesses in toto, which are as under:-
1. P.W.1 Shyamlal, complainant and father of the
victim girl.
2. P.W.2 Smt. Suman, an eyewitness and the mother of
the victim girl.
3. P.W.3 Sharadendu Dixit an eyewitness.
4. P.W.4 Head Moharrir Dinesh Bahadur Singh, who
registered FIR and has proved the chick FIR and
concerned G.D.
5. P.W.5 Sub-Inspector, Babau Upadhyaya, who is the
3rd Investigation Officer (in short I.O.) who finally
submitted the chargesheet against the convict/
appellant.
6. P.W.6 Dr. Suman Mishra, who medically examined
the victim on the date of incident itself.
7. P.W.7 Sub-Inspector Abdul Haleem who initially
investigated the case.
8. P.W.8 Inspector Harilal Kardam, who is the second
I.O. of the case.
9. P.W.9 Dr. Ashish Wakhlu who performed surgery
on the victim girl.
(iv) Apart from oral evidence, the relevant documents have
also been proved by the prosecution which are as under:-
a. Exhibit Ka-1 written report.
c. Exhibit Ka-3 Carbon copy of the concerned G.D.
d. Exhibit Ka-4 Chargesheet.
e. Exhibit Ka-5 Medico Legal report of the victim girl.
f. Exhibit Ka-6 Site plan of the place of occurrence.
g. Exhibit Ka-7 Surgical report of the victim girl.
h. Exhibit Ka-8 Letter to Superintendent Gandhi
Memorial and Associate Hospital, Lucknow.
(v) After completion of prosecution evidence statement of
the convict/appellant was recorded under Section 313 of the
Code of Criminal Procedure, 1973 (in short Cr.P.C.),
wherein he denied the crime and has stated that all the
evidence is false. He also stated that the case was registered
due to the enmity at the behest of Sharadendu Dixit because
Sharadendu Dixit wanted him to work, in his field forcibly,
when he denied, some altercations took place then he
(Sharadendu Dixit) said that he would implicate him
(convict) in a false case. No defence witness was produced
by the convict/appellant though opportunity was given by
the trial court.
3. Heard Mr. Anurag Shukla, learned Amicus Curiae on behalf
of appellant and Mr. Dhananjay Kumar Singh, learned Additional
Government Advocate for the State-respondent.
4. Learned counsel for the convict/appellant argued that the
trial court has erred in convicting and sentencing the
convict/appellant, because the place of occurrence has not been
proved. The FIR is ante -time as the alleged time of occurrence is
12:30 PM on 19.03.2006 and the FIR was lodged on the same day
at 3:15 PM and victim was medically examined at 6:30 PM.. The
conduct of family members of the victim was unnatural because no
person shall leave her 10 months old child unattended at the
platform. As per prosecution story the child was seriously injured,
but she was not taken to the hospital first. She was taken to the
hospital for medical aid after six hours. The victim who is so
seriously injured would not survive for such a longtime. Injury
report shows that there was fresh bleeding at 6:30 PM with clotted
blood. In six hours blood would dry after coagulation. There is no
whisper, how and when informant did receive information about
the incident when he was on his field. He further argued that
allegedly the rape was committed on earth, but not a single bruise
or redness was found on the back of the child. The offence as has
been alleged cannot possibly be committed by a man on such a
small child. He further argued that in the FIR there is nothing that
anybody saw the convict/appellant committing the crime, but
subsequently the witnesses have improved their versions before the
trial court. No evidence is there on the record about giving the
medical aid to the victim after six hours. The compliance of section
53 and 54 of Cr.P.C. was not made by the Investigating Officer. In
fact the girl got injured after falling on a picket of roof of “Arhar
Plant” and the convict was falsely implicated at the behest of
Sharadendu Dixit. Hence the impugned judgment and order should
be set-aside.
5. Learned Amicus Curiae, relied upon the following case
1. Brathi alias Sukhdev Singh Vs. State of Punjab 1991
2. Nirmal Singh Kahlon Vs. State of Punjab 2009 (1) SCC
Dhoble and another 2003 (7) SCC 749.
4. Bhikari Vs. State of Uttar Pradesh 1966 AIR SC 1.
5. Rahim Beg and another Vs. State of U.P. (1972) 3 SCC
6. Contrary to it, learned A.G.A. argued that the prosecution
has proved its case beyond all reasonable doubts. The incident was
witnessed by the mother of the victim girl, an independent eye
witness Sharadendu Dixit who reached at the place after hearing
the cry of the victim girl. The ocular account given about the
incident is consistent with the medical evidence. Medical
examination of the victim girl was done on the same day and
serious injuries were found on the private parts of the victim girl.
The lady doctor who conducted the medical examination of the
victim girl has been examined as P.W.6 and she has proved all the
injuries found on the private parts of the victim girl and has also
said in cross-examination that in her opinion the injuries found on
the body of the victim girl would only be possible due to the rape
committed on her and such injury cannot occur by fall on any
article or sharp-edged object. The girl was so seriously injured due
to the alleged criminal act of the convict that she was subjected to
surgery and that has been proved by P.W.9 Dr. Ashish Wakhlu .
Hence there is no error in the impugned judgment and order and
the appeal should be dismissed.
7. Considered the rival submissions, perused the original
record of trial court and gone through the case laws cited. The facts
as well as the evidence available on record show that this
unfortunate incident occurred with a girl aged about 11 months,
who is unable to understand and speak anything about the crime.
Allegedly the incident occurred on 19.03.2006 at about 12:30 PM.
The victim girl was playing at the platform situated in front of her
house and she was picked up by the convict from there. The
convict took her in his thatched house and committed rape on her.
Hearing the cry of the innocent and helpless child the mother of the
child P.W.2 and one independent witness Sharadendu Dixit,
resident of the same village reached at the spot and witnessed the
incident. An FIR of the crime was lodged on the same day at about
03:15 PM and the girl was medically examined on the same day at
about 6:30 PM. In the medical report of the victim Exhibit Ka-5,
the following observation has been made by the doctor:-
"Physical exam. 77 cm length, wt 9 kg. Teeth 4/4 No marks
of injury present anywhere in body.
Local exam- Hymen torn bleeding out. Post vag wall tear
present at 8 O'clock position complete P teat at 6 O'clock
position.
Inernal Examination- (1) Complete P tear size 3 cm x 1 cm
x communicating with rectum clotted blood present with
fresh bleeding at 6 O'clock position.
(2) Post Vag. wall torn extending up to post. fornix x 4 cm x
1 cm x muscle deep situated at 8 O'clock. Vag smear
prepared. sent to pathologist for evidence of spermatozoa.
Above examination done in presence of Surgeon Dr.
Bhardwaj, a paediatrician, Dr. S.P. Singh and anaesthestist
Adv. She is referred to KGMC for further manggement adv
X-ray elbow wrist with both hands for age determination.
Supplementary report is awaited."
8. P.W.1 father of the victim girl and the complainant has
proved his written report as Exhibit Ka-1. He stated before the trial
court that incident occurred about ten and half months ahead at
about 12:30 PM during day. His daughter was about one year old
at the time and she was playing outside the house on the platform.
His wife and brother-in-law Ram Kishore were present in the
house. The convict took her daughter and committed rape on her.
Upon hearing the cry of the girl, his wife Suman, brother-in-law
Ram Kishore and independent witness Sharadendu Dixit reached at
the spot, then Shrawan Kumar Maurya, convict ran away leaving
his daughter in injured condition. His wife, bother-in-law and
independent witness Sharadendu Dixit had told him the whole
incident. Thereafter he got written the report Exhibit Ka-1 by
Sharadendu Dixit, who wrote the report on his (complainant's)
dictation and read-over the same to the complainant, then he
affixed his thumb impression on that and lodged the FIR in the
police station.
9. He has further stated that after registering the FIR his
injured daughter was sent to hospital alongwith police personnel,
whereupon medical examination of the girl was conducted in the
presence of his wife at female Hospital Sitapur. He has further
stated that at the time of incident he was working in the field
alongwith other family members and neighbours. He and other
persons also reached at the spot and saw that his wife was weeping
keeping the victim girl in her lap. When he asked, she told him
about the incident and he saw that the blood was oozing out from
the private parts of the girl. This witness is not the eye witness of
the incident, he lodged the FIR of the crime upon the narrations
made by the eye witnesses i.e. his wife, Sharadendu Dixit and his
brother-in-law who reached at the spot after hearing the cry of the
girl. Smt. Suman is the mother of the victim. She has stated in the
Court as P.W.2 that at the time of incident her daughter was 11
months old, she could not speak. The incident occurred about 11
months ahead at about 12:00 O’clock in the day, her daughter was
playing at the platform in front of the house and she (witness) was
brooming in the courtyard of her house. The accused Shrawan
Kumar Maurya, present in the Court took her daughter on the
pretext of giving toffee and committed rape on her. The girl cried
and when she heard the cry of the girl she came out of the house, at
the same time Sharadendu Dixit and her brother-in-law was also
reached at the spot after hearing the cry of the girl. All the three
persons reached the spot and saw that accused Shrawan Kumar
Maurya was committing rape on her daughter. They all saw the
accused committing the rape on her daughter and recognized him
very well. When they reached at the spot, accused Shrawan Kumar
Maurya ran away towards south, leaving the girl there. The
condition of the girl was serious and she was unconscious.
Thereafter she went to Police Station about after one to two hours
alongwith her husband. Her husband presented an application at
the police station and lodged the FIR. Her daughter was medically
examined at female hospital Sitapur. Thereafter her daughter was
referred to Medical College as her condition was serious. She
remained admitted for eight days there. Thereafter her treatment
continued for about 7 months. Her (witness') statement was
recorded by the Investigating Officer. In the cross-examination of
this witness no major contradiction has occurred. Witness has
proved the incident and denied the suggestion that accused was
implicated falsely at the behest of Sharadendu Dixit.
10. Sharadendu Dixit has been examined as P.W.3, who is an
independent eye witness and resident of the same village. He has
stated before the Court that on 19.03.2006 at about 12:30 PM
during the day he heard a cry of the victim-girl. At that time he was
coming back from his grove to his house. The cry was coming
from the house of Shrawan Kumar Maurya, the accused. After
hearing the cry, he reached at the spot and saw that accused
Shrawan Kumar Maurya was committing rape on the victim girl
under the thatch of his house. At the same time, Suman mother of
the girl and Ram Kishore the brother of Suman also reached there
and they all witnessed Shrawan Kumar Maurya committing rape
on the victim girl. When accused Shrawan Kumar Maurya saw
them, he left the girl and ran away. The blood was oozing out from
the private parts of the girl and she was in unconscious state. He
has further stated that he scribed the report of the incident at the
dictation of wife of Shyamlal. He wrote whatever was dictated to
him by the wife of Shyamlal. Thereafter he read over the same to
Shyamlal, thereafter Shyamlal affixed his thumb impression on
that. Thereafter Shyamlal and his wife alongwith their girl went to
police station. This witness has proved the written report Exhibit
Ka-1 as written in his own handwriting. This witness has further
stated that the I.O. recorded his statement about the incident. This
witness has also been cross-examined at length by the learned
counsel for the convict / appellant, but nothing adverse has come
out in his cross-examination. This witness has also denied the
suggestion put by defence counsel that he has deposed in the case
due to enmity with the accused. He has also denied the suggestion
that the girl was injured by falling on a picket of root 'Arhar plant'.
11. Both these two witnesses of facts have proved the incident
committed by the convict/appellant. In the lengthy cross-
examinations made by the defence counsel nothing adverse can be
brought in their evidence. The medical evidence is in corroboration
of and consistent with the ocular evidence.
12. P.W.6, the lady doctor who medically examined the victim
girl has proved its medical report as Exhibit Ka-5. In the cross-
examination she has denied the suggestion that girl got injured by
falling on some hard and sharp edged object. This witness has
clearly stated that such type of injury could occur due to rape.
13. P.W.4 Head Moharir Dinesh Bahadur Singh has proved the
chick FIR and concerned GD and stated before the Court that the
case was registered by him on the basis of the written report
presented by the complainant who came there to lodge the FIR.
This witness has proved chick FIR as Exhibit Ka-2 and concerned
GD as Exhibit Ka-3 written in his own hand writing. This witness
has further stated that after lodging the FIR he gave the copy of the
same to the complainant and sent the victim girl alongwith
Constable 453 Shiv Sharma to Sitapur Hospital for medical
examination and thereafter handed over the 'Nakal Chick' and
carbon copy of 'Nakal Rapat' to Sub Inspector Abdul Haleem for
investigation who recorded his statement.
14. Sub Inspector Abdul Haleem who initially investigated the
case has been examined as P.W.7. He has proved the part of the
investigation conducted by him. He has stated in examination-in-
chief that on 19.03.2006 he was posted at Police Station
Machhrehta as Sub Inspector. On that day the Case Crime No.50 of
2006 under Section 376 and 452 of I.P.C. was entrusted to him for
investigation. 'Nakal Chick' and carbon copy of 'Nakal Rapat' was
given to him. The case was registered in his presence. The girl was
sent for medical examination and treatment. He recorded the
statement of Head Moharir Dinesh Bahadur Singh on the same day
at the Police Station, thereafter he reached at the spot where the
incident occurred.
15. Thereafter S.O. Harilal Kardam reached the spot alongwith
force and he took over the investigation. Inspector Harilal Kardam
has been examined as P.W.8. He has stated before the trial court
that the case was registered in his absence for that reason Sub
Inspector Abdul Haleem was entrusted with the investigation.
When he came back at Police Station and took over the
investigation. He got the medical report of the victim girl on
20.03.2006. He made an entry of the same in the case diary.
Inspected the place of occurrence and prepared the site plan in his
own hand writing and signature, which is correct. This witness has
proved the site plan as Exhibit Ka-6. He has further stated that he
arrested accused Shrawan Kumar Maurya on 21.03.2006 and
recorded his statement and he confessed the crime. After this stage
of investigation he was transferred from the police station.
16. Thereafter the investigation was taken over by Sub-Inspector
Babau Upadhyay who completed the investigation and submitted
the chargesheet against the accused under Section 376 of I.P.C. and
has proved the same as Exhibit Ka-4. Sub-Inspector Babau
Upadhyay has been examined as P.W.5.
17. By the evidence of P.W.2 and 3 who are the eye witnesses of
the incident and evidence of formal witnesses, the charge framed
against the accused has been proved beyond reasonable doubt. The
medical evidence is in corroboration of the ocular account given by
the eye witnesses.
18. The argument raised by learned Amicus Curiae on behalf of
the convict/appellant that the place of occurrence has not been
proved is not tenable at all. The place of occurrence has very well
been proved by the eye witnesses P.W.1 & 2 as well as by
Investigating Officer who prepared the site plan of the spot. The
site plan as Exhibit Ka-5 is on the record, wherein the place of
committing the crime has been shown and proved by the
Investigating Officer who has prepared the site plan of the place of
19. Learned counsel for the defence submitted that not a single
drop of blood was found at the spot where the rape was allegedly
committed. Mere absence of blood on the place of incident where
the alleged incident took place will not make the whole incident
untruthful when the trust-worthy ocular evidence as well as
medical evidence is there, about the incident.
20. In the case State of Rajasthan Vs. Satya Narain (1998) 8 SCC
404 the Hon'ble Apex Court has held that merely because of
absence of blood at the place of occurrence, the occurrence of the
incident itself cannot be doubted.
21. The contention of the learned Amicus Curiae that FIR is
ante -time is also not tenable because as per the evidence available
on record the incident occurred on 19.03.2006 at about 12:30 PM
and the FIR was lodged on the same day at about 3:15 PM. The
FIR was well within a reasonable time and cannot be termed as
ante- timed.
22. Learned counsel for the Amicus Curiae submitted that
conduct of the family members of the child was unnatural and un-
believable because they did not take the injured girl to the hospital
whose condition was serious instead they first went to the police
station, this creates a serious doubt. This contention of the learned
Amicus Curiae have no force, because generally in the cases where
the injury has been received as a result of crime the person goes
first to inform the police or lodge the FIR. So the conduct of the
family members of the victim cannot be termed as unnatural,
specially when they are of village and illiterate persons.
23. The argument of the learned Amicus Curiae that convict was
not medically examined as is mandatory under Section 53 and 54
of Cr.P.C. and this goes against the prosecution. The mere non-
examination of the accused medically after the incident cannot
create the clouds of doubts on the evidence of eye-witnesses well
supported with medical evidence specially when the accused was
arrested after two days of the incident. Further more in Section 53,
53A and Section 54 of Cr.P.C. related provisions were amended
and made effective on 23.03.2006, while this incident occurred on
24. The case law cited by the learned Amicus Curiae in Nirmal
Singh Kahlon Vs. State of Punjab (supra), wherein in paragraph
28 on which the amicus relied upon the following law has been
laid down by the Hon’ble Apex Court, which reads as under:-
"28. An accused is entitled to a fair investigation. Fair
investigation and fair trial are concomitant to preservation of
fundamental right of an accused under Article 21 of the
Constitution of India. But the State has a larger obligation
i.e. to maintain law and order, public order and preservation
of peace and harmony in the society. A victim of a crime,
thus, is equally entitled to a fair investigation. When serious
allegations were made against a former Minister of the State,
save and except the cases of political revenge amounting to
malice, it is for the State to entrust one or the other agency
for the purpose of investigating into the matter. The State for
achieving the said object at any point of time may consider
handing over of investigation to any other agency including
a central agency which has acquired specialization in such
cases."
This case law is of no help to the convict/appellant as there is
nothing on record to show that fair investigation was not made or
the accused was not afforded fair opportunity to defend himself or
fair trial was not made. Rest of the case law cited by learned
Amicus Curiae is not applicable in the matter due to the
difference of facts and circumstances of the case.
25. To sum up, in the present matter the incident has been
proved by the eye-witnesses P.W.1 and P.W.-2 supported with
medical evidence beyond all reasonable doubt against the
convict/appellant. The trial court has committed no error in
holding the accused guilty and sentencing him to
imprisonment for life, coupled with a direction to give
Rs.25,000/- to the victim girl as compensation. There appears
no reason to interfere with the judgment and order passed by
the learned trial court.
26. The appellant Shrawan Kumar Maurya is stated to be in
jail, accordingly he shall serve out the sentence awarded by
the trial Court.
27. The appeal is dismissed, accordingly.
28. Mr. Anurag Shukla, learned Amicus Curiae for the
appellant shall be paid his remuneration from Legal Services
Sub-Committee of this Court as permissible under the Rules.
29. Office is directed to send a copy of this order along with
the lower Court record to the trial Court concerned for
necessary information and compliance forthwith.
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The Allahabad High Court has observed that mere non-examination of the accused medically after the incident cannot create clouds of doubts on the evidence of eye-witnesses well supported with medical evidence.The Bench of Justice Ramesh Sinha and Justice Saroj Yadav observed thus as it upheld the conviction of the rape accused who was sentenced to life imprisonment by the trial court coupled...
The Allahabad High Court has observed that mere non-examination of the accused medically after the incident cannot create clouds of doubts on the evidence of eye-witnesses well supported with medical evidence.
The Bench of Justice Ramesh Sinha and Justice Saroj Yadav observed thus as it upheld the conviction of the rape accused who was sentenced to life imprisonment by the trial court coupled with a direction pay Rs.25,000/- as compensation to the victim.
The case in brief
One Shrawan Kumar Maurya was held guilty of the offence punishable under Section 376 of I.P.C. and sentenced to life imprisonment for raping a one-year-old girl. He challenged the sentence and conviction in the High Court.
It was narrated in the written report that on March 19, 2006, at about 12:30 PM, the daughter of the complainant (aged about one year) was playing on the platform situated in front of his house.
The accused picked up her on the pretext of giving her toffee and took the victim in his thatched house and committed rape on her.
The amicus appearing for the accused argued before the Court that the conduct of the family members of the child was unnatural and unbelievable because they did not take the injured girl to the hospital whose condition was serious instead they first went to the police station.
It was further argued that the convict was not medically examined as was mandatory under Section 53 and 54 of Cr.P.C. and this goes against the prosecution.
Court's observations
At the outset, the Court noted that the case rests on the evidence of P.W.2 and 3 who are the eye witnesses of the incident and the charge framed against the accused had been proved beyond a reasonable doubt.
The Court also underscored that the medical evidence was in corroboration of the ocular account given by the eye witnesses.
Regarding the argument of the defence that not a single drop of blood was found at the spot where the rape was allegedly committed, the Court observed that the mere absence of blood on the place of incident where the alleged incident took place will not make the whole incident untruthful when the trust-worthy ocular evidence, as well as medical evidence, is there, about the incident.
Regarding the argument that the victim was not taken to the hospital, the Court remarked that generally in the cases where the injury has been received as a result of a crime, the person goes first to inform the police or lodge the FIR.
"So the conduct of the family members of the victim cannot be termed as unnatural, especially when they are of village and illiterate persons," the Court held.
Further, regarding medical non examination of the accused right after the incident, the Court observed thus:
"The mere nonexamination of the accused medically after the incident cannot create the clouds of doubts on the evidence of eye-witnesses well supported with medical evidence specially when the accused was arrested after two days of the incident. Further more in Section 53, 53A and Section 54 of Cr.P.C. related provisions were amended 18 and made effective on 23.03.2006, while this incident occurred on 19.03.2006."
Consequently, the Court held that the incident had been proved by the eye-witnesses P.W.1 and P.W.-2 supported with medical evidence beyond all reasonable doubt against the convict/appellant and that the trial court had committed no error in holding the accused guilty and sentencing him to imprisonment for life, coupled with a direction to give Rs.25,000/- to the victim girl as compensation.
With this, the appeal was dismissed by the High Court.
Case title - Srawan Kumar Maurya v. State Of U.P. [CRIMINAL APPEAL No. - 2422 of 2008]
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1. This appeal is directed against the judgment and award
dated 14th April, 2007 in Application (WCA) No.17/B-8/2004,
passed by the Commissioner for Workmen’s Compensation and
Judge, 8th Labour Court at Mumbai, whereby the application
preferred by the appellants – applicants for compensation on
account of death, of late Vishakha Singh Suman Singh (the
deceased), on account of accident arising out of and in the
course of his employment, while driving motor vehicle (truck)
bearing No.MH-04-F-8979, owned by opponent no.1 employer
and insured with opponent no.2 – insurer, on 3 rd November,
2003, came to be dismissed.
2. The background facts leading to this appeal can be stated
(a) Late Vishakha Singh, the husband of applicant no.1
- Smt. Harvinder Kaur, father of applicant no.2 - Master
Charanjit Singh and applicant no.3 - Kum Luv Prit Kaur and
son of applicant no.4 - Mr. Suman Singh and applicant no.5 -
Smt. Mahindra Kaur, was employed with opposite party no.1 -
Mr. Tarvinder Singh, as a driver on the truck No.MH-04-F-8979.
The said vehicle was insured with opposite party no.2. The
applicants claim that the deceased was 35 years of age. He was
drawing wages of Rs.4,000/- per month.
(b) While the deceased was driving the said truck
bearing No.MH-04-F-8979, on his way to Mumbai, in the course
of employment, the deceased died at Chandwad, district Nashik.
Inquest was held on the body of the deceased. Postmortem
examination was conducted. It was opined that the deceased
died on account of coronary artery heart disease. The
applicants asserted that the deceased died on account of the
stress and strain of employment as the deceased had been
driving the said vehicle continuously since 17 to 18 days. On
the day of the death, the deceased was on his way to Mumbai
from Ranchi, which is at a distance of 1800 kms. from Mumbai.
Thus, the applicants claimed compensation of Rs.3,94,120/-
along with interest and penalty.
(c) The opposite party no.1 - employer filed the written
statement. It was admitted that the deceased was employed
with opposite party no.1 as a driver on the above-numbered
vehicle and met death on 3rd November, 2003, at Chandwad,
Nashik, on his way to Mumbai, in the course of employment.
The opposite party no.1 further admitted that he was paying
wages of Rs.4,000/- per month and a claim form was submitted
to the insurer with the aforesaid particulars.
(d) Opposite party no.2 - insurer resisted the claim
principally on the ground that the death, which the deceased
met, was natural. The death was not on account of the use of
the motor vehicle. Nor the accident occurred out of the
employment. The contingencies as specified in Section (II) of the
Contract of Insurance dated 29th September, 2003 and Section
147 of the Motor Vehicles Act, 1988, were not made out, and
thus the applicants were not entitled to claim compensation. In
substance, there was no nexus between the death, which the
deceased met, and the use of the vehicle, which was insured
with opposite party no.2 – insurer.
(e) In the backdrop of the aforesaid pleadings, the
learned Commissioner framed following issues at Exhibit-O-4:
1. Whether the applicants prove that the deceased met
with fatal accident in the course of and arising out of
use of the vehicle with the opposite party and died?
2. Whether the applicants prove that they are entitled to
receive the compensation claimed or such other
amount from the opposite parties Nos.1 and 2?
3. Whether the applicants prove that they are entitled to
receive the compensation with penalty and interests?
(f) The learned Commissioner recorded the evidence of
applicant no.1 Smt. Harvinder Kaur (witness no.1 – for the
applicants), Mr. Tarvinder Singh (witness no.1 for opposite
party) and Suryakant Kambli (witness no.1 for insurer). After
appraisal of the oral evidence and documents tendered for her
perusal, the learned Commissioner was persuaded to return the
finding that the employer – employee relationship between the
deceased and opposite party no.1 was established. However, the
applicants were non-suited on the ground that the death, being
natural, cannot be said to have been caused by an accident
arising out of and in the course of his employment. The learned
Commissioner while answering the issue nos.2 and 3, went on
to further record that the question as to whether the deceased
was in fact employed with the opposite party no.1 was in the
corridor of uncertainty as it was brought out in the cross-
examination of Tarvinder Singh - opposite party no.1 that he
was dealing in the business of transport under the name and
style of Amrit Roadlines, a partnership firm. Thus, the mere
fact that on the date of the accident, the deceased was working
as a driver on the above-numbered vehicle, owned by opposite
party no.1, was not sufficient to award compensation, held the
3. Being aggrieved by and dissatisfied with the aforesaid
judgment and award, the appellants – applicants are in appeal.
4. I have heard Mr. Gatane, the learned Counsel for the
appellants and Mr. Dange, the learned Counsel for respondent
no.2 – insurer. With the assistance of the learned Counsel for
the parties, I have perused the material on record including the
impugned judgment and depositions of the witnesses and
documents tendered for the perusal of the learned
5. At the outset, Mr. Dange, the learned Counsel for
respondent no.2 – insurer, assailed the tenability of the appeal
as it does not involve any substantial question of law. In view of
the proviso to sub-section (1) of Section 30 of the Employees
Compensation Act, 1923, the existence of a substantial question
of law is a jurisdictional condition for entertaining the appeal,
urged Mr. Dange. In the case at hand, while admitting the
appeal, no such substantial question of law was framed by this
Court and, therefore, at this juncture, the appeal does not
deserve to be entertained.
6. Mr. Gatatne, the learned Counsel for the appellants, joined
the issue by canvassing a submission that the very fact that the
learned Commissioner initially recorded a finding that the
employer – employee relationship between the deceased and
opposite party no.1 was established and, later on, went on to
take a diametrically opposite view itself raises a substantial
question of law. Taking the Court through the observations
made by the learned Commissioner on the aspect of employer –
employee relationship, which are irreconcilable, in the least, Mr.
Gatane would urge that the fact that a substantial question of
law was not framed while admitting the appeal cannot be urged
to deprive the appellants of the opportunity to assail the legality,
propriety and correctness of the impugned judgment and award,
lest the appellants would suffer an irretrievable prejudice.
7. I am persuaded to agree with the submission of Mr.
Gatane. Indeed, while admitting the appeal, on 3 rd July, 2007,
this Court did not frame any substantial question of law or gave
an indication as to the question of law on which the appeal
deserved admission. However, that does not preclude the Court
from considering the submissions to ascertain as to whether
there is a substantial question of law, which warrants
determination in this appeal, even at this stage. It is trite that a
substantial question of law can be reformulated. Thus,
respondent no.2 cannot draw any mileage from the said fact of
admission of the appeal without framing a substantial question
of law.
8. The submission on behalf of the appellants that the
learned Commissioner committed a patent error in first holding
that, in view of the pleadings and material on record, the
employee – employer relationship between the respondent no.1
and deceased was established, and later on, dismissing the
claim on the ground that the said fact was not adequately
proved, appears well founded. Indisputably, in the written
statement, respondent no.1 has admitted the employer –
employee relationship and also the essential terms of
employment. In paragraph 6, the learned Commissioner
recorded a categorical finding that such employer – employee
relationship was established. Nonetheless, while considering
the entitlement of the applicants for compensation, the learned
Commissioner recorded a view that the said fact was not proved.
This somersault gives rise to a substantial question of law as to
whether the learned Commissioner, once having recorded an
affirmative finding on the employer – employee relationship, was
justified in dismissing the application for compensation on the
count that no such relationship was established. I am thus
persuaded to entertain the appeal.
9. Mr. Gatane, the learned Counsel for the appellants, would
urge that apart from the aforesaid inconsistent findings as
regards the proof of employer – employee relationship, the
learned Commissioner committed a manifest error in returning
a finding that the deceased did not meet death in the
course of and out of the employment. The learned
Commissioner, according to Mr. Gatane, was in error in not
appreciating the evidence on record, which establishes that the
deceased was on the wheel of the truck for 17 to 18 days and
driving for such a prolonged period was impregnated with the
stress and strain, which eventually led to cardiac problem.
Therefore, it must have been held by the learned Commissioner
that the stress and strain of driving for such a long period,
accelerated the death of the deceased, submitted Mr. Gatane.
10. In opposition to this, Mr. Dange, the learned Counsel for
respondent no.2 – insurer supported the impugned judgment.
It was urged that the death, which the deceased met, was
undoubtedly natural. There was next to no evidence, according
to Mr. Dange, to show that the deceased suffered any stress and
strain of the driving. In fact, there was no explanation as to
why the cleaner on the said vehicle was not examined. The
cleaner was the best person to throw light on the circumstances
of transaction leading to the death of the deceased. In the
circumstances, the learned Commissioner, according to Mr.
Dange, committed no error in dismissing the application.
11. To lend support to the aforesaid submission, Mr. Dange,
placed reliance on the judgment of the Supreme Court in the
case of Shakuntala Chandrakant Shreshti vs. Prabhakar Maruti
Garvali and another,1 which was referred to and heavily relied
upon by the learned Commissioner in support of the said
12. Per contra, Mr. Gatane, the learned Counsel for the
appellants, submitted that the learned Commissioner totally
misconstrued the ratio in the case of Shakuntala Chandrakant
Shreshti (supra) and completely lost sight of the fact that in the
said case compensation was claimed in respect of death of the
cleaner, who was not expected to be under the stress and strain,
which a driver had to encounter. In contrast, the
pronouncement in the case of Param Pal Singh through Father
vs. National Insurance Company and another,2 according to Mr.
Gatane, governs the facts of the case at hand with full force.
13. It is imperative to note that there is no dispute over the
fact that the deceased died on 3 rd November, 2003, while he was
on his way back to Mumbai along with the motor vehicle bearing
No.MH-04-F-8979. Undoubtedly, the autopsy surgeon opined
that the cause of death was coronary artery heart disease and it
was natural. In Column nos.19 and 20 of the postmortem
report, the autopsy surgeon made following observations:
coverings, size, weight and general Brain matter – Edematous
condition of the organ itself and any
(g) Heart with weight Heart enlarged. Aorta showed
(h) Large vessels atheromatous plaque coronarie
(i) Additional remarks thickened & calcified coronary ostia
narrowed.
14. Laying emphasis on the aforesaid observations in the
postmortem report and the contents of the inquest, wherein the
public witnesses opined that the deceased might have met
death, while he was in the cabin of the truck, Mr. Gatane would
urge that the mere fact that the deceased met a natural death is
not decisive. The question as to whether the death, which the
deceased met, was on account of accident arising out of and in
the cause of employment cannot be determined de hors the
attendant circumstances. The learned Commissioner, according
to Mr. Gatane, misdirected herself in taking a hyper-technical
view of the matter and lost sight of the beneficial object of the
15. The learned Commissioner was persuaded to negative the
claim of the applicants for the reason that both Ms. Harvinder
Kaur - applicant no.1 and Mr. Tarvinder Singh – opposite party
no.1 conceded in the cross-examination that they were unaware
as to whether at the time of his death, the deceased was driving
the vehicle or it was in a stationary state. Secondly, the non-
examination of the cleaner, according to the learned
Commissioner, was inexplicable. It was only the cleaner, who
could have thrown light on the circumstances in which the
deceased met death.
16. Indeed, the cleaner could have thrown light over the
situation, and transactions leading to the death of the deceased.
However, the omission to examine the cleaner could not have
been exalted to such a pedestal as to jettison away the
applicants claim overboard. At the most, it would imply that
the applicants have not led evidence to sustain a finding that
the deceased died while he was on the wheel of the motor
vehicle. Nonetheless, the uncontroverted facts indicated that
the deceased had left Mumbai for Ranchi and, on the day of
death, the deceased was on his way back to Mumbai from
Ranchi, and 17 to 18 days period had lapsed since the deceased
had left Mumbai. This factor was not properly appreciated by
the learned Commissioner. Instead, the learned Commissioner
proceeded to draw support from the judgment of the Supreme
Court in the case of Shakuntala Shreshti (supra).
17. In the case of Shakuntala Shreshti (supra), Prakash, the
deceased therein, was working as a cleaner in the vehicle. He
suddenly developed chest pain. Upon being admitted to
Government Hospital, Mangaon, he was declared dead.
Evidently, the deceased died due to heart attack. The Supreme
Court noted that, Mr. Parasharam, the driver of the said vehicle,
who was the brother of the deceased, was not examined to
throw light upon the circumstances under which the death took
place. The Supreme Court thus held that the proximate nexus
between the cause of death and employment was not
18. In paragraph 26 in the case of Shakuntala Shreshti
(supra), the Supreme Court expounded factors which are
required to be established in a case of the present nature. The
observations in paragraphs 26 to 29 are instructive and hence
“26. In a case of this nature to prove that accident has
taken place, factors which would have to be established, inter
(1) stress and strain arising during the course of
(2) nature of employment,
(3) injury aggravated due to stress and strain.
27. The deceased was traveling in a vehicle. The same by
itself can not give rise to an inference that the job was
strenuous.
28. Only because a person dies of heart attack, the same
does not give rise to automatic presumption that the same
was by way of accident. A person may be suffering from a
heart disease although he may not be aware of the same.
Medical opinion will be of relevance providing guidance to
court in this behalf.
29. Circumstances must exist to establish that death was
caused by reason of failure of heart was because of stress
and strain of work. Stress and strain resulting in a sudden
heart failure in a case of the present nature would not be
presumed. No legal fiction therefor can be raised. As a person
suffering from a heart disease may not be aware thereof,
medical opinion therefore would be of relevance. Each case,
therefore, has to be considered on its own fact and no hard
and fast rule can be laid down therefor.”
19. After analysing the facts in the said case, the Supreme
Court, inter alia, observed as under:
“36. Only because the cause of death was due to heart
attack, the same by itself may not be a ground to arrive at a
conclusion that an accident had occurred resulting in
injury.
37. The nature of duty of the deceased was that of a
helper. Per se that the duties would not be such which could
cause stress or strain. If an additional duty were required to
be performed by him, the same was required to be clearly
stated.
38. Unless evidence is brought on record to elaborate that
the death by way of cardiac arrest has occurred because of
stress or strain, the Commissioner would not have
jurisdiction to grant damages. In other words, the claimant
was bound to prove jurisdictional fact before the
Commissioner. Unless such jurisdictional facts are found,
the Commissioner will have no jurisdiction to pass an order.
It is now well-settled that for arriving at a finding of a
jurisdictional fact, reference to any precedent would not be
helpful as a little deviation from the fact of a decided case or
an additional fact may make a lot of difference by arriving at
a correct conclusion. For the said purpose, the statutory
authority is required to pose unto himself the right
question.”
20. Banking upon the aforesaid observations especially,
“unless evidence is brought on record to elaborate that the
death by way of cardiac arrest has occurred because of stress or
strain, the Commissioner would not have jurisdiction to grant
damages”, the learned Commissioner held that, in the absence
of evidence of cleaner, in the case at hand, it cannot be said that
the deceased died on account of stress and strain caused by the
21. I am afraid to subscribe to the view of the learned
Commissioner. If the aforesaid pronouncement is construed
properly, in the backdrop of the fact situation therein, the
crucial distinguishing factor appears to be the nature of the
employment of the deceased. In the said case, the deceased was
stated to be working as a cleaner. The nature of the said
employment, which was essentially of a helper to the driver, was
held to be not per se such onerous as to cause stress or strain.
This distinguishing feature, in my considered view, was lost
sight of by the learned Commissioner.
22. The pronouncement of Supreme Court in the case of
Param Pal Singh (supra) arose out of a case, where the deceased
was working as a driver and suffered death while on the wheel
of the truck. In the facts of the said case, the deceased therein
felt uncomfortable and, therefore, parked the vehicle on the
roadside of a nearby hotel. Immediately after parking the
vehicle he fainted and the nearby persons took him to the
hospital, where the deceased was declared brought dead.
23. After adverting to the previous pronouncements of the
Supreme Court, including in the case of Shakuntala Shreshti
(supra), Malikarjuna G. Hiremath vs. Oriental Insurance Co.
Ltd.3, Mackinnon Mackenzie & Co. (P) Ltd. vs. Ibrahim
Mahmmed Issak4, the Supreme Court held that there was
causal connection to the death of the deceased with that of his
employement as a truck driver.
24. The observations in paragraphs 29 and 30 delineate the
approach to be adopted while ascertaining the causal
connection. They read as under:
“29. Applying the various principles laid down in the above
decisions to the facts of this case, we can validly conclude
that there was CAUSAL CONNECTION to the death of the
deceased with that of his employment as a truck driver. We
cannot lose sight of the fact that a 45 years old driver meets
with his unexpected death, may be due to heart failure
while driving the vehicle from Delhi to a distant place called
Nimiaghat near Jharkhand which is about 1152 kms. away
from Delhi, would have definitely undergone grave strain
and stress due to such long distance driving. The deceased
being a professional heavy vehicle driver when undertakes
the job of such driving as his regular avocation it can be
safely held that such constant driving of heavy vehicle,
being dependant solely upon his physical and mental
resources & endurance, there was every reason to assume
that the vocation of driving was a material contributory
factor if not the sole cause that accelerated his unexpected
death to occur which in all fairness should be held to be an
untoward mishap in his life span. Such an ‘untoward
mishap’ can therefore be reasonably described as an
‘accident’ as having been caused solely attributable to the
nature of employment indulged in with his employer which
was in the course of such employer’s trade or business.
30. Having regard to the evidence placed on record there
was no scope to hold that the deceased was simply
travelling in the vehicle and that there was no obligation for
him to undertake the work of driving. On the other hand,
the evidence as stood established proved the fact that the
deceased was actually driving the truck and that in the
course of such driving activity as he felt uncomfortable he
safely parked the vehicle on the side of the road near a hotel
soon whereafter he breathed his last. In such
circumstances, we are convinced that the conclusion of the
Commissioner of Workmen’s Compensation that the death
of the deceased was in an accident arising out of and in the
course of his employment with the second respondent was
perfectly justified and the conclusion to the contrary
reached by the learned Judge of the High Court in the order
impugned in this appeal deserves to be set aside.
(emphasis supplied)
25. A useful reference can also made to the judgment in the
case of Subhadrabai w/o Ganpatrao Suryawanshi (died) per LRs
Aruna d/o Ganpatrao Suryawanshi vs. Maharashtra State Road
Transport Corporation and others5, wherein it was held that
death by heart attack is an accident is well recognized. It was
inter alia observed as under:
“21. Thus, death by heart attack is an accident is now well
established by series of judicial pronouncements made from
time-to-time. If the workman died of heart attack, there was
a pre-existing heart condition which was aggravated by the
strain of work of the deceased while performing his duties
which resulted in his death and as such there is a causal
connection between the injury and the accident which has
been construed in wider sense as a mishap external or
internal not expected or designed by the victim. The accident
in the instant case was 'failure of heart'. Considering the
evidence on record it is obvious that the accident was in the
course of the employment and, therefore, it can be said that
it arose during the course of the employment within the
meaning of Section 3(1) of the Act.”
26. On the aforesaid touchstone, reverting to the facts of the
case, there is evidence to indicate that the vehicle in question
had left Mumbai for Ranchi 17 to 18 days prior to the date of the
death of the deceased. On the day of occurrence, the deceased
was on his way back to Mumbai from Ranchi. The deceased
had started eight days prior to the day of occurrence from
Ranchi. The distance to be covered was around 1800 kms.
There was no second or spare driver on the said truck. These
circumstances deserve adequate consideration.
27. An effort was made during the course of the cross-
examination of Mr. Tarvinder Singh – opposite party no.1 that
his drivers do not get exerted. They do not drive continuously
but take breaks. The deceased was healthy. There was no
complaint about his health. Tarvinder Singh, not unexpectedly,
asserted that the deceased do not die due to the work pressure.
28. The aforesaid admissions, even if they can be called so,
and even construed at par, do not erode the enormity of the
situation, which a driver faces, on account of long and arduous
journey, for almost 18 days, uninterrupted. The long distance
driving for about 3600 kms. can be expected to generate stress
and strain, even subconsciously. I am, therefore, persuaded to
hold that in the facts of the instant case, the death of the
deceased can be said to have been accelerated on account of the
stress and strain associated with the long distance driving for
almost 18 days in trying circumstances. Any other view of the
matter would defeat the beneficial object of the provisions
contained in Section 3 of the Employees Compensation
29. On the aspect of the employer – employee relationship, as
observed above, the learned Commissioner recorded
inconsistent findings. Whether such approach of the learned
Commissioner is justifiable? To start with, it is imperative to
note that in the written statement by opposite party no.1, the
relationship between the opposite party no.1 and deceased was
admitted in no uncertain terms. Even the essential terms of
employment were indicated therein. To add to this, in the
written statement filed on behalf of opposite party no.2 –
insurer, the absence of employer – employee relationship
between opposite party no.1 and the deceased was not
specifically pleaded.
30. The aforesaid factor assumes importance for the reason
that opposite party no.2 – insurer sought to draw support from
a report of the Suryakant Kambli, (witness no.1 for opposite
party no.2) an insurance investigator that the opposite party
no.1 gave a certificate to the effect that the deceased was
employed with Amrit Roadlines and was paid salary of
Rs.2,000/- per month. No effort appears to have been made by
opposite party no.2 to either controvert the assertion of opposite
party no.1 that the deceased was his employee or to contend
that the deceased was the employee of Amrit Roadlines, on the
basis of the said report of the insurance investigator. In the
absence of such pleadings, the applicants were not equipped to
meet a challenge to the employer – employee relationship, when
the said fact was, on the one hand, unequivocally admitted by
opposite party no.1 and, on the other hand, not specifically
denied by opposite party no.2 – insurer.
31. Emphasis was laid on behalf of respondent no.2 on the
manner in which Tarvinder Singh fared in the cross-
examination. Opposite party no.1 - Tarvinder Singh conceded in
the cross-examination that he deals in the transport business
under the name and style of Amrit Roadlines, which is a
partnership firm. There were 20 drivers and 20 cleaners apart
from two office staff and two loaders. All the vehicles were run
in the name of Amrit Roadlines, a partnerhsip firm. Mr.
Tarvinder Singh, however, asserted that the vehicle in question
was in his personal name and it did not belong to Amrit
Roadlines and the deceased was not concerned with Amrit
32. The aforesaid evidence does not lead to the only
conclusion that the vehicle in question belonged to Amrit
Roadlines. Tarvinder Singh – opposite party no.2 might have
been a partner of Amrit Roadlines. However, indisputably,
opposite party no.1 was the registered owner of the said vehicle
and the contract of insurance was between opposite party no.1
and the insurer. The fact that opposite party no.1 was a partner
in Amrit Roadlines, thus, does not detract materially from the
existence of employer – employee relationship between opposite
party no.1 and the deceased.
33. In the aforesaid view of the matter, the fact that the
insurance investigator Mr. Suryakant Kambli (witness no.1 for
opposite party no.2), had obtained a certificate from opposite
party no.1 that the deceased was working with his organization
(Amrit Roadlines) since last two years and was driving tankers
and was earning Rs.2,000/- per month, as salary, could not
have been so construed as to conclusively establish that the
deceased was not working with opposite party no.1. It is more
so for the reason that the identity of the registered owner of the
vehicle in question, the fact that the deceased was driving the
said vehicle at the time of the occurrence and it was insured
with opposite party no.2, were not in contest. In the absence of
a specific defence having been set up in the written statement,
in my considered view, a document of aforesaid nature, which
might have been obtained by insurance investigator in an
unguarded moment, cannot command primacy to the prejudice
of the dependents of the deceased employee.
34. For the same reasons, I am persuaded to believe the
testimony of opposite party no.1 that the deceased was paid
wages of Rs.4,000/- per month, which finds support in the
report of accident to workman. The learned Commissioner was,
however, justified in holding that the age of the deceased was 54
years as was evident from the driving license and applying the
factor of 139.13 relevant to the said age. The compensation
would thus be (2000X139.13) Rs.2,78,260/-.
35. For the foregoing reasons, the appeal deserves to be
allowed. Hence, the following order:
(i) The appeal stands allowed with costs.
(ii) Opposite party nos.1 and 2 do jointly and severally
deposit the compensation of Rs.2,78,260/- along
with interest at the rate of 12% p.a. from 3 rd
December, 2003 till realization.
(iii) Upon realization, the amount of compensation be
disbursed to the appellants – applicants, in equal
proportion.
(iv) Opposite party no.1 shall also pay a sum of
Rs.25,000/- by way of penalty.
|
The Bombay High Court recently directed an employer to compensate the kin of a truck driver, observing that the stress and strain caused during his employment had ultimately led to his demise. Justice NJ Jamadar held that the deceased driver's heart attack could be termed an accident arising out of and in the course of his employment, as contemplated under Section 3 of the...
The Bombay High Court recently directed an employer to compensate the kin of a truck driver, observing that the stress and strain caused during his employment had ultimately led to his demise.
Justice NJ Jamadar held that the deceased driver's heart attack could be termed an accident arising out of and in the course of his employment, as contemplated under Section 3 of the Workman's Compensation Act.
The bench thus set aside the Labour Court's order, allowed an appeal filed by the motorman's kin in 2007, and directed the travel company owner and insurance company to cough up Rs.2,78,260/- along with interest at the rate of 12% p.a. from December 3, 2003. The court also ordered the owner to pay costs of Rs. 25,000.
"I am persuaded to hold that in the facts of the instant case, the death of the deceased can be said to have been accelerated on account of the stress and strain associated with the long distance driving for almost 18 days in trying circumstances. Any other view of the matter would defeat the beneficial object of the provisions contained in Section 3 of the Employees Compensation Act,1923."
Facts of the Case
Deceased Vishakha Singh succumbed to coronary artery heart disease at Nashik, while driving the truck on his way back from Ranchi to Mumbai on November 3, 2003. The family asserted that Singh was continuously on the road for 17-18 days before the incident and died due to the stress and strain of employment.
The Labour Court held that the driver died due to natural causes. There was no evidence to connect his demise to his job as a driver, especially since no cleaner was examined. Merely being employed by the travel company at the time of his demise was not enough.
Observations
The High Court observed that the Commissioner and Labour Court had wrongly relied on Supreme Court's judgment in Shakuntala Chandrakant Shreshti vs. Prabhakar Maruti Garvali and refused relief to a cleaner who died of a heart attack.
The HC distinguished the two cases, observing that the cleaner's job is not stressful like a driver's job.
According to the judgement, while adjudicating such cases, the court must consider if stress and strain is arising during employment, what is the nature of employment and if the injury (in this case death) is aggravated due to stress and strain.
The court noted that the truck left Ranchi for Mumbai eight days prior to the incident, which means that the driver was expected to cover 1800 kms without any back-up driver.
The travel company owner Tarvinder Singh had testified that his drivers don't get tired as they take breaks. The deceased driver was healthy and didn't die due to work pressure.
"The aforesaid admissions, even if they can be called so, and even construed at par, do not erode the enormity of the situation, which a driver faces, on account of long and arduous journey, for almost 18 days, uninterrupted. The long distance driving for about 3600 kms. can be expected to generate stress and strain, even subconsciously," the court held.
Arguments
Advocate Amol Gatane for the petitioners argued that the Labour Court had recorded inconsistent findings in the judgement. While in the first half of the judgement, the court held that an employer-employee relationship was established, while deciding compensation entitlement, the court said that the aspect was not proved.
Advocate SM Dange for the insurer New India Assurance Co. Ltd. had supported the Labour Court's judgment. He argued that the deceased met with a natural death and there was next to no evidence to show that the deceased suffered any stress and strain of the driving. Also, the cleaner was not examined.
The HC held that the employer-employee relationship was established with the travel company accepting the driver as an employee and the insurer not explicitly denying the statement.
Case Title: Smt. Harvinder Kaur Vishakha Singh vs Tarvinder Singh K. Singh
Case No: FIRST APPEAL NO. 1476 OF 2007
|
Sessions Case No.96/96 acquitting the respondent –
original accused from the offence punishable under sections
489(a), 489(b) and 489(c)of Indian Penal Code.
2. The case of the prosecution in nutshell is as under:-
On 22/3/1995 owner of Prabhat Saw Mill named
Laxmidas Patel visited the Bank for depositing Rs.25,000/-
in Bank of Baroda Bank, Palanpur. As such he had placed
the notes of denomination of Rs.100 and Rs.50 before the
cashier and when the cashier was counting, some doubt
was created regarding 20 notes of Rs.100 i.e. total
Rs.2000/-. As such, the Manager was informed accordingly
and upon checking the notes, it was found to be counterfeit
and as a result, the notes were seized and complaint was
filed by the Senior Manager of Bank of Baroda, Palanpur in
Initially investigation was carried out by Head
Constable Rajabhai Virabhai. The notes were sent to
Government Press, Devas for checking. Thereafter, the
investigating officer investigated regarding involvement of
the accused and as the accused was not found, “A”
Sumary was filed by the then investigating officer, Palanpur
Thereafter, on 9/5/1996 upon Fax massage received
through D.S.P. Office, as an accused of counterfeit notes
was arrested in Bhuj Police Station, on the basis of the
Transfer Warrant, present respondent accused was
arrested, investigation was carried out, and statements
were recorded and as Certificate from the Government
Press, Devas was received stating the 20 notes being
counterfeit notes, chargesheet was filed against the present
respondent accused.
Upon committal of the case to the Sessions Court,
learned Sessions Judge framed charge at Exh.4 against the
respondent accused for the aforesaid offences. The
respondent accused pleaded not guilty and claimed to be
In order to bring home charge, the prosecution has
examined 7 witnesses and also produced 7 documentary
evidences before the learned trial Court, more particularly
described in para 4 of the impugned judgment and order.
3. On conclusion of evidence on the part of the prosecution,
the trial Court put various incriminating circumstances
appearing in the evidence to the respondent accused so as
to obtain explanation/answer as provided u/s. 313 of the
Code of Criminal Procedure. In the further statement, the
respondent accused denied all incriminating circumstances
appearing against him as false and further stated that he is
innocent and false case has been filed against him.
4. We have heard learned APP Ms. Shah for the appellant –
State and have minutely examined the record and
proceedings provided to us during the course of hearing.
Learned APP has submitted that the prosecution case is
supported by deposition of the investigating officer and
P.S.I. Nathekhan Muradkhan PW No.6 and P.I. Balvant
Mulji PW No.7, who have carried the investigation and
received the information of counterfeit notes in Bhuj and the
counterfeit notes found in this case are from the same serial
numbers as being the Fax message by the D.S.P. Office.
Except this, no other discriminating evidence has been
placed on record.
5. Per contra, learned advocate Mr. E.E. Saiyed appearing
for respondent – original accused has submitted that
nothing incriminating is coming out from the evidence of the
prosecution so as to connect the respondent accused with
the crime in question.
6. Heard the leaned advocates for the respective parties
at length and perused the impugned judgement and order of
acquittal passed by the trial court as well as the entire
record and proceedings.
7. Before adverting to the facts of the case, it would be
worthwhile to refer to the scope in Acquittal Appeals. It is
well settled by is catena of decisions that an appellate Court
has full Power to review, re-appreciate and consider the
Evidence upon which the order of Acquittal is founded.
However, the Appellate Court must bear in mind that in
case of Acquittal, there is prejudice in favour of the
Accused, firstly, the presumption of innocence is available
to him under the Fundamental Principle of Criminal
Jurisprudence that every person shall be presumed to be
innocent unless he is proved guilty by a competent Court of
Law. Secondly, the Accused having secured his Acquittal,
the presumption of his innocence is further reaffirmed and
strengthened by the trial Court.
8. We have carefully gone through the entire evidence of
main witness PW No.1 – Laxmidas Patel who is the person
who had come for depositing the amount in the Bank who is
the owner from of Prabhat sow mill. It reveals from the
evidence that 20 counterfeit notes were seized when he was
depositing the amount but he was unknown to the fact as
to how the notes had travelled to him. It is also admitted
that nothing comes out from the evidence of PW No.1 as to
involvement of the present respondent accused. It also
comes out from the evidence of the PW No.1 that the notes
were received by him during the transaction of his business
but it has not come out from his evidence that the present
accused had handed over these notes in transaction of
some business with him.
9. So far as recovery of counterfeit notes is concerned,
Panchnama is made out, counterfeit notes are seized, which
cannot be denied but to connect the accused with the
counterfeit notes, no evidence has been adduced by the
prosecution. Mr.Mava Mula is the person who was informed
by the cashier regarding counterfeit notes and the Bank
Manager filed the complaint accordingly. In the evidence of
the Bank Manager, no incriminating case is made out
against the respondent accused to connect him with the
crime in question.
10. It is also on record that the investigation was handed
over initially to Rajabhai Pirabhai, Head Constable, LCB,
Palanpur who has sent the notes for checking after duly
filling of the form to the Government Press and thereafter he
tried to trace out the accused but nobody was found and
therefore, he filed “A” Summary in the case. Thus, at the
initial stage itself when the investigation was set in motion,
nobody was found to be the culprit behind the counterfeit
notes so the investigation was shut-down by filing “A”
Summary. As such, thereafter, in the year 1996 one Fax
message was received by the office of the DSP, Palanpur
stating that an accused is found in Bhuj for the offence of
counterfeit notes. On the basis of Transfer Warrant, the
present respondent accused was arrested on 22/5/1996
from Bhuj Sub Jail and brought to Palanpur, as per the
deposition of PSI , Palanpur – Nathekhan PW No.6. From his
cross examination, nothing comes out on record to connect
the present respondent accused with the offence. It is
admitted by the PSI PW No.6 that except Fax message, no
evidence is against the respondent herein – original
11. As per the evidence of Mr.Ansari, P.I. CID Crime,
Ahmedabad - PW No.7, he was the person who has sent the
Fax massage from his office to all the police stations in the
State, as a case being CR No.84 of 1996 was filed of
counterfeit notes in Bhuj Police Station and statement of
serial numbers of counterfeit notes was also prepared,
which was sent to all the DSPs along with the Fax Message.
It is admitted by the PW No.7 in his cross examination that
statement has not been prepared in his presence and he
has no knowledge regarding investigation of Bhuj Case
being CR No.84 of 1996.
12. For the sake of arguments, even if the accused is
arrested in case of counterfeit notes in connection with Bhuj
Case being CR No.906 of 1996 and statement has been sent
by Fax, this aspect also does not point out any
incriminating evidence against the respondent accused for
his involvement in the present case.
13. The prosecution has not been able to prove the
presence of the present accused in Palanpur. No business
transaction with the PW No.1 has been proved. No material
is found in the present offence from the respondent accuse
which can relate the respondent accused with the present
offence. Merely on the basis of Transfer Warrant, the
accused has been implicate in this case. From the entire
evidence on record, no iota of evidence comes on record to
point out the guilt of the present respondent accused.
Under the circumstances, the learned trial judge has rightly
acquitted the respondent accused for the reasons stated in
the impugned judgement and order.
14. It may be noted that as per the settled legal position,
when two views are possible, the judgment and order of
acquittal passed by the trial Court should not be interfered
with by the Appellate Court unless for the special reasons. A
beneficial reference of the decision of the Supreme Court in
the case of State of Rajasthan versus Ram Niwas reported
in (2010) 15 SCC 463 be made in this regard. In the said
case, it has been observed as under:-
“6. This Court has held in Kalyan v. State of U.P.,
“8. The settled position of law on the powers to be
exercised by the High Court in an appeal against
an order of acquittal is that though the High Court
has full powers to review the evidence upon which
an order of acquittal is passed, it is equally well
settled that the presumption of innocence of the
accused persons, as envisaged under the criminal
jurisprudence prevalent in our country is further
reinforced by his acquittal by the trial court.
Normally the views of the trial court, as to the
credibility of the witnesses, must be given proper
weight and consideration because the trial court is
supposed to have watched the demeanour and
conduct of the witness and is in a better position to
appreciate their testimony. The High Court should
be slow in disturbing a finding of fact arrived at by
the trial court. In Kali Ram V. State of Himachal
Pradesh, (1973) 2 SCC 808, this Court observed
that the golden thread which runs through the web
of administration of justice in criminal case is that
if two views are possible on the evidence adduced
in the case, one pointing to the guilt of the accused
and the other to his innocence, the view which is
favourable to the accused should be adopted. The
Court further observed:
"27. It is no doubt true that wrongful acquittals are
undesirable and shake the confidence of the
people in the judicial system, much worse,
however, is the wrongful conviction of an innocent
person. The consequences of the conviction of an
innocent person are far more serious and its
reverberations cannot but be felt in a civilised
society. Suppose an innocent person is convicted of
the offence of murder and is hanged, nothing
further can undo the mischief for the wrong
resulting from the unmerited conviction is
irretrievable. To take another instance, if an
innocent person is sent to jail and undergoes the
sentence, the scars left by the miscarriage of
justice cannot be erased by any subsequent act of
expiration. Not many persons undergoing the
pangs of wrongful conviction are fortunate like
Dreyfus to have an Emile Zola to champion their
cause and succeed in getting the verdict of guilt
annulled. All this highlights the importance of
ensuring, as far as possible, that there should be
no wrongful conviction of an innocent person.
Some risk of the conviction of the innocent, of
course, is always there in any system of the
administration of criminal justice Such a risk can
be minimised but not ruled out altogether It may in
this connection be apposite to refer to the following
observations of Sir Carleton Alien quoted on page
157 of "The Proof of Guilt" by Glanville Williams,
"I dare say some sentimentalists would assent to
the proposition that it is better that a thousand, or
even a million, guilty persons should escape than
that one innocent person should suffer; but no
responsible and practical person would accept
such a view. For it is obvious that if our ratio is
extended indefinitely, there comes a point when
the whole system of justice has broken down and
society is in a state of chaos."
28. The fact that there has to be clear evidence of
the guilt of the accused and that in the absence of
that it is not possible to record a finding of his guilt
was stressed by this Court in the case of Shivaji
Sahebrao, (1973) 2 SCC 793, as is clear from the
following observations:
"Certainly it is a primary principle that the accused
must be and not merely, may be guilty before a
court, can be convicted and the mental distinction
between 'may be' and 'must be' is long and divides
vague conjectures from sure considerations."
“9. The High Court while dealing with the appeals
against the order of acquittal must keep in mind
the following propositions laid down by this Court,
namely, (i) the slowness of the appellate court to
disturb a finding of fact; (ii) the noninterference
with the order of acquittal where it is indeed only a
case of taking a view different from the one taken
by the High Court."
8. In Arulvelu and another versus State
reported in (2009) 10 Supreme Court Cases 206,
the Supreme Court after discussing the earlier
judgments, observed in para No. 36 as under:
“36. Careful scrutiny of all these judgments lead to
the definite conclusion that the appellate court
should be very slow in setting aside a judgment of
acquittal particularly in a case where two views
are possible. The trial court judgment can not be
set aside because the appellate court's view is
more probable. The appellate court would not be
justified in setting aside the trial court judgment
unless it arrives at a clear finding on marshaling
the entire evidence on record that the judgment of
the trial court is either perverse or wholly
unsustainable in law.”
15. It is a cardinal principle of criminal jurisprudence that
in an acquittal appeal if other view is possible, then also,
the appellate Court cannot substitute its own view by
reversing the acquittal into conviction, unless the findings of
the trial Court are perverse, contrary to the material on
record, palpably wrong, manifestly erroneous or
demonstrably unsustainable. (Ramesh Babulal Doshi V.
State of Gujarat (1996) 9 SCC 225). In the instant case,
the learned APP for the appellant has not been able to point
out to us as to how the findings recorded by the learned
trial Court are perverse, contrary to material on record,
palpably wrong, manifestly erroneous or demonstrably
16. In the case of Ram Kumar v. State of Haryana,
reported in AIR 1995 SC 280, Supreme Court has held as
“The powers of the High Court in an appeal from
order of acquittal to reassess the evidence and
reach its own conclusions under Sections 378 and
379, Cr.P.C. are as extensive as in any appeal
against the order of conviction. But as a rule of
prudence, it is desirable that the High Court
should give proper weight and consideration to the
view of the Trial Court with regard to the credibility
of the witness, the presumption of innocence in
favour of the accused, the right of the accused to
the benefit of any doubt and the slowness of
appellate Court in justifying a finding of fact
arrived at by a Judge who had the advantage of
seeing the witness. It is settled law that if the
main grounds on which the lower Court has based
its order acquitting the accused are reasonable
and plausible, and the same cannot entirely and
effectively be dislodged or demolished, the High
Court should not disturb the order of acquittal."
17. As observed by the Hon'ble Supreme Court in the case
of Rajesh Singh & Others vs. State of Uttar Pradesh
reported in (2011) 11 SCC 444 and in the case of
Bhaiyamiyan Alias Jardar Khan and Another vs. State of
Madhya Pradesh reported in (2011) 6 SCC 394, while
dealing with the judgment of acquittal, unless reasoning by
the learned trial Court is found to be perverse, the acquittal
cannot be upset. It is further observed that High Court's
interference in such appeal in somewhat circumscribed and
if the view taken by the learned trial Court is possible on the
evidence, the High Court should stay its hands and not
interfere in the matter in the belief that if it had been the
trial Court, it might have taken a different view.
18. Considering the aforesaid facts and circumstances of
the case and law laid down by the Hon'ble Supreme Court
while considering the scope of appeal under Section 378 of
the Code of Criminal Procedure, no case is made out to
interfere with the impugned judgment and order of
19. In view of the above and for the reasons stated above,
present Criminal Appeal deserves to be dismissed and is
accordingly dismissed.
|
The Gujarat High Court has declined to overturn the order acquitting Respondent who was accused of counterfeiting currency notes while noting that 'no iota of evidence' came on record to point out the guilt of the Respondent-Accused. The Bench comprising Justice SH Vora and Justice Rajendra Sareen concluded that no incriminating evidence was available against the Accused and that...
The Gujarat High Court has declined to overturn the order acquitting Respondent who was accused of counterfeiting currency notes while noting that 'no iota of evidence' came on record to point out the guilt of the Respondent-Accused.
The Bench comprising Justice SH Vora and Justice Rajendra Sareen concluded that no incriminating evidence was available against the Accused and that merely based on a Transfer Warrant, the Accused had been implicated in the case.
The instant Appeal was preferred by the State of Gujarat from an order of Sessions Judge acquitting the Accused for offences under Sec 489A (Counterfeiting currency-notes or bank-notes), 489B (Using as genuine, forged or counterfeit currency-notes or bank-notes) and 489C (Possession of forged or counterfeit currency-notes or bank-notes) of IPC.
The Prosecution's case was that the owner of Prabhat Saw Mill had visited the Bank for depositing Rs. 25,000 in Bank of Baroda and had placed notes of Rs. 100 and 50 for the same. The cashier doubted 20 notes of Rs. 100 for a total of Rs. 2000. Upon checking, it was revealed that the notes were counterfeit and consequently, the notes were seized and a complaint was filed. Subsequent to the investigation, the IO found the involvement of the Respondent-Accused. Thereafter, upon receipt of a Fax message, the Accused was arrested on the basis of a Transfer Warrant.
To bring home the charges, the Prosecution examined several witnesses and presented documentary evidence even as the Respondent denied all incriminating circumstances.
The Bench noted that the prosecution case was supported by the deposition of the IO and other police officers who carried out the investigation and had found the same serial numbers on the counterfeit notes in as those messaged in the Fax Message. However, no other incriminating evidence was available to connect the Accused with the offence.
The Bench cautioned that in acquittal appeals, the prejudice was in favour of the Accused. It concluded that there was no evidence that the Accused had handed over these notes in some transaction which reached the owner of the Mill. In the complaint of the Bank Manager, as well, no case was made out against the Accused. Notably, in the initial stage of investigation, nobody was found to be the culprit and the case was shut down by filing 'A' summary. Only after the Fax Message in 1996, was the Respondent arraigned as an Accused.
The Bench averred:
"The prosecution has not been able to prove the presence of the present accused in Palanpur. No business transaction with the PW No.1 has been proved. No material is found in the present offence from the respondent accuse which can relate the respondent accused with the present offence. Merely on the basis of Transfer Warrant, the accused has been implicate in this case."
Keeping in view these facts, the Bench affirmed the order of acquittal of the Sessions Court.
Case No.: R/CR.A/382/1997
Case Title: STATE OF GUJARAT v/s RAIB JUSAB SAMA MUSALMAN
|
2. Perused the First Information Report (FIR) and the
statements of relevant witnesses with the assistance of the learned
Counsel for the applicants, learned APP and the learned Counsel for
non-applicant no. 2.
3. Although, it is the contention of the learned counsel for the
applicants that the allegations made in the FIR and the material
collected during the course of investigation by Police when taken
together and taken at their face value, no prima facie case for offences
punishable under Sections 376(2)(n), 377, 498-A, 494, 294, 323, 504
43 judgAPL 1287.2022.odt
and 506 of the Indian Penal Code, 1860 (for short the “IPC”) r/w.
Section 34 of the IPC is made out, we find, agreeing with the
submissions made across the bar on behalf of the State and non-
applicant no. 2, that there is very strong prima facie case against each of
the applicants for the offences which have been registered against them
vide Crime No. 505/2022 at Police Station, Jaripatka, Nagpur.
4. The FIR as well as the statements of relevant witnesses,
apparently show that each of the applicant nos. 1 to 5 have prima facie
treated non-applicant no. 2, the complainant, consistently with severe
cruelty, so much so that her husband i.e. applicant no. 1 did not spare
her even when she was carrying pregnancy and forcibly committed
repeated acts of sexual intercourse with her with vengeance. The result
was that the complainant i.e. non-applicant no. 2 miscarried the fetus
and lost her child. In fact, the complainant had pleaded with her
husband not to indulge in those acts because of the condition of the
complainant but, her husband was relentless and prima facie behaved in
a savage manner with her. This material further shows that each of these
applicants, on every occasion of friction between husband and wife, had
prima facie taken the side of the husband, and prima facie encouraged
and instigated him in continuing with his atrocious and cruel behaviour
towards his wife. There is prima facie material further showing that all
the relatives of the husband, who are applicants here have at one point
43 judgAPL 1287.2022.odt
or the other, indulged in meting out cruel treatment in various ways to
non-applicant no. 2, the details of which are to be found not only in the
FIR but also in the statements of witnesses.
5. The cruelty prima facie handed out to non-applicant no. 2
did not stop at physically torturing non-applicant no. 2 but, it went
beyond the physical state of pain in the sense that the husband i.e.
applicant no. 1 with impunity performed marriage with another woman
and that was done with the active aid and assistance of the rest of the
applicants. When a husband performs the second marriage while his first
marriage is alive, a question arises as to whether such act on the part of
husband would amount to cruelty within the meaning of Section 498-A
of the IPC. As per explanation to Section 498-A of the IPC, cruelty
means; any wilful conduct of such a nature as is likely to drive the
woman to commit suicide or to cause grave injury or danger to life, limb
or health (mental or physical) of the woman. It also includes harassment
caused with a view to coercing the woman or any person related to her
to meet any unlawful demand for any property or valuable security.
Here, we are concerned with wilful conduct of such a nature which has
caused or which is likely to cause danger to health of non-applicant no.
2. Marrying another woman by the husband during existence of his first
marriage is something which is most likely to cause trauma and grave
injury to the mental health of the first wife, unless it has been done with
43 judgAPL 1287.2022.odt
the consent of the first wife. If the act of performance of second
marriage during subsistence of the first marriage is not interpreted as
amounting to cruelty contemplated under Section 498-A of the IPC, it
would frustrate the legislative intent to prevent the torture to a woman
by her husband or by relative of her husband and, therefore, that
interpretation has to be adopted which sub-serves the object sought to
be achieved by the Legislation. Useful reference in this regard may be
made to the cases of B.S. Joshi and ors. Vs. State Of Haryana and anr.
[2003 Cri L.J. 2028 (SC)] and Reema Aggarwal Vs. Anupam and ors.
[(2004) 3 SCC 199]. By these parameters, we find here that the second
marriage performed by applicant no. 1 while his first marriage with non-
applicant no. 2 was on, prima facie amounted to cruelty. It has been
further prima facie aggravated here when the applicant no. 1 made a
false representation to other woman with whom he performed marriage
during subsistence of the present marriage with non-applicant no. 2 that
his first wife had died and the rest of the applicants i.e. both his parents,
his siblings and also aunt joined in chorus with applicant no. 1. They
falsely told the second woman that the first wife of applicant no. 1 had
died. All these details have been graphically stated by the second woman
in her statement recorded under Section 161 of the Criminal Procedure
Code, 1973 (for short the “Cr.P.C.”). She has also informed the police
that she too had lodged a criminal complaint against applicant no. 1
43 judgAPL 1287.2022.odt
which was registered by Police Station, Imamwada, Nagpur for certain
cognizable offences. Although, it is not known as to exactly which are
those offences but, the fact remains that even the second wife of
applicant no. 1 has lodged a criminal report against him.
6. The learned Counsel for the applicants submits that non-
applicant no. 2 in the FIR has only stated about the performance of
second marriage during the subsistence of first marriage of Atul i.e.
applicant no. 1 by way of hearsay evidence, as she has stated that she
learnt about the same from somebody else. This statement, which was in
the nature of hearsay evidence now has turned itself, prima facie, into
piece of admissible evidence with recording of the statement of second
woman with whom applicant no. 1 solemnized his second marriage. This
woman has confirmed the fact that by resorting to deceptive means and
suppressing the material facts from her, applicant no. 1 induced her in
performing marriage with him. She has also stated in about few months
into her marriage with applicant no. 1, that applicant no. 1 admitted to
her that his first wife was alive, which fact was personally verified by
this woman and found to be correct. We, therefore, we do not find any
substance in the said submission of the learned Counsel for the
7. It is further submitted by the learned Counsel for the
applicants that the second woman with whom applicant no. 1 performed
his second marriage was an educated woman and was expected to make
inquiry about the deeds, character, background and actions of applicant
no. 1, perhaps suggesting that while applicant no. 1 could do anything,
could also be reckless, but the second woman can ill-afford to do it; that
she only has to make enquiry and find for herself if the applicant no. 1
was worthy of being her consort or not. In other words, according to her,
it was the responsibility of the woman to not trust such a man and first
know about him only upon making inquiry about his character,
background and history, before agreeing to marry him. The argument
does not impress us. Reasons are not too far to seek. In India marriage is
considered to be a sacrament wherein each of the parties to marriage is
expected to act honestly and remain faithful to each other. They must
not suppress from each other any material facts which may have a
bearing upon the marital bond. It is only when they conduct themselves
in a clean and faithful manner that a bond of trust, love and affection is
forged between them. No marriage can remain a sacrament, if parties to
the marriage do not come clean about their past and do not trust,
respect and love each other. Here in this case, applicant no. 1 has, prima
facie, breached the trust of second woman with whom he performed his
43 judgAPL 1287.2022.odt
second marriage during subsistence of his first marriage and also of his
first wife, the non-applicant no. 2. The argument is, in our considered
opinion, outlandish and hence, rejected.
8. It is further submitted by the learned Counsel for the
applicants that the investigation carried out by the Police, in this case, is
faulty, as no sufficient material has been collected, no photograph has
been clicked and no statements of independent and relevant witnesses
have been recorded. On going through the statements of witnesses, at
least at this stage, we find that there is hardly any inadequacy or lacuna
in the investigation made by the Police. If any inadequacy is discovered
later-on, the Investigation Officer would be at liberty to make further
investigation in the matter and file supplementary charge-sheet with the
permission of the concerned Court. The argument, therefore, can not be
accepted and it is rejected.
9. It is also submitted by the learned Counsel for the applicants
that applicant nos. 5, 6 and 7, relatives of the husband, had never given
their consent for performance of second marriage by applicant no. 1
while his first marriage was alive. On going through the charge-sheet,
we have not come across statement of any witness who agrees that there
was opposition made by applicant nos. 5, 6 and 7 to the second marriage
of applicant no. 1 with another woman, rather the statements of
43 judgAPL 1287.2022.odt
witnesses show that all of them had prima facie actively encouraged the
applicant no. 1 to perform the second marriage, they themselves had
arranged the second marriage, they were present at the time of
solemnization of his second marriage and had even falsely informed the
second woman that first wife of applicant no. 1 was dead. Therefore,
such argument cannot be accepted and is rejected. If at all it is to be
made, it may be made at the time of trial, where it can be appreciated
properly in the light of recorded evidence by the trial Court.
10. It would be now clear that an attempt made by the
applicants to invoke inherent power of this Court under Section 482 of
the Cr.P.C. is nothing but an abuse of process of law and, therefore, this
application deserves to be dismissed with exemplary costs.
11. The application is dismissed with costs of Rs.25,000/-
(Rupees Twenty Five Thousands only) to be deposited by the applicants
in the account of High Court Legal Services Sub-Committee, Nagpur
within a period of four weeks from the date of the order, failing which,
the Secretary, High Court Legal Services Sub-Committee, Nagpur shall
take steps for realising the amount of costs by considering it as fine
imposed by this Court.
|
The Bombay High Court recently held that a husband marrying another woman during the existence of first marriage and without his wife's consent constitutes cruelty under section 498-A of the IPC.
"Marrying another woman by the husband during existence of his first marriage is something which is most likely to cause trauma and grave injury to the mental health of the first wife, unless it has been done with the consent of the first wife. If the act of performance of second marriage during subsistence of the first marriage is not interpreted as amounting to cruelty contemplated under Section 498-A of the IPC, it would frustrate the legislative intent to prevent the torture to a woman by her husband or by relative of her husband and, therefore, that interpretation has to be adopted which sub-serves the object sought to be achieved by the Legislation", the court held.
The division bench of Justice Sunil B. Shukre and Justice M. W. Chandwani of Nagpur refused to quash an FIR against a man and his family members for cruelty to his wife.
The FIR was for offences under sections 376(2)(n) (rape repeatedly on the same woman), 377 (unnatural offences), 498-A (cruelty by husband or husband's relative), 494 (marrying again during lifetime of husband or wife), 294 (obscene acts), 323 (punishment for voluntarily causing hurt), 504 (intentional insult with intent to provoke breach of the peace) and 506 (punishment for criminal intimidation) of the IPC. The accused approached the High Court under section 482 of Cr.P.C. for quashing of the FIR.
The court perused the FIR and noted that all applicants prima facie treated the woman with severe cruelty. Her husband forcibly committed repeated acts of sexual intercourse with her even when she was pregnant, resulting in a miscarriage. The court said that the husband prima facie behaved in a 'savage' manner.
The court also noted that prima facie all the family members had encouraged and instigated the man's cruel behaviour towards his wife. The court said that prima facie, all relatives of the husband i.e., all applicants meted out cruel treatment to the wife.
The court further noted that the man married another woman with the active aid and assistance of his relatives. This amounts to cruelty and prima facie, breach of the trust of his second as well as his first wife, the court stated.
The court noted that prima facie, the man told the second woman that his wife had died. His parents, siblings, and aunt supported this narrative, the court noted.
Advocate Manju M. Ghatode for the applicants argued that the allegation of second marriage was hearsay as his wife had heard it from someone else.
The court stated that it is admissible evidence now since the second woman in her statement confirmed that the applicant induced her to marry him.
Ghatode contended that it was the responsibility of the second woman to not trust the man and first know about him by making enquiry about his character, background etc. The court considered this argument 'outlandish' and rejected it.
"In India marriage is considered to be a sacrament wherein each of the parties to marriage is expected to act honestly and remain faithful to each other. They must not suppress from each other any material facts which may have a bearing upon the marital bond. It is only when they conduct themselves in a clean and faithful manner that a bond of trust, love and affection is forged between them. No marriage can remain a sacrament, if parties to the marriage do not come clean about their past and do not trust, respect and love each other", the court observed.
The court did not find any inadequacy or lacuna in the police investigation.
The court held that the attempts of the applicants to invoke inherent power of court under section 482 of the Cr.P.C. is an abuse of process of law. Therefore, it imposed exemplary costs of Rs 25000 on the applicants.
Case no. – Criminal Application (APL) No. 1287/2022
Case Title – Atul S/o Raju Dongre and Ors. v. State of Maharashtra and Anr.
|
1. Business associations can sour and that is what has happened in
the present case. That the association was across the seas is another
aspect. The two parties before us were shareholders in the investment
holding company called Atlas Equifin Private Limited, India (for short
‘Atlas’) which held 11,05,829 equity shares of Rs.10 each in Multi
Screen Media Pvt. Ltd. (for short ‘MSM’). It appears that the appellant
had been attempting to sell the shares in MSM since 2002. In
furtherance of the said objective, a placement instruction dated
15.11.2005 was signed by the parties authorising Standard Chartered
Bank (for short ‘SCB’) as their agent to identify the purchaser for the
appellant’s shares in Atlas. The dispute apparently commenced on
account of the stand of the respondent that his signatures on the
placement instructions had been forged. Accordingly, he lodged a
complaint with the Economic Offences Wing, Mumbai Police (for short
‘EOW’) on 19.04.2010 against both the appellant and the SCB.
2. Better sense appears to have prevailed at that stage amongst the
parties, or if one would say commercial sense; and they endeavoured to
resolve their disputes by entering into a Deed of Settlement dated
03.01.2011. Since the present proceedings need to be adjudicated on
aspects which emerge from the Deed of Settlement, it would be
appropriate at this stage to set out the gist of its relevant clauses.
a. Clause 2 provided that the respondent would withdraw all
complaints and proceedings filed against the appellant.
b. Clause 3 forbade the respondent from writing letters,
communications, or complaints to any person about the subject
matter of the Deed of Settlement. The latter part of the said
“3..........It is farther agreed that in future Jackie shall not
write any letter or communication or complaint to any
police authority/ies and/or any other judicial, quasi-
judicial authority or statutory authority or any person or
entity complaining about the subject matter of the present
c. As a monetary incentive to the respondent to bring the
complaints to an end, an amount of US$ 1.5 million was to be
paid to the respondent as per clause 4.1. This amount vide
banker’s cheque was to be held in an Escrow by M/s. D.M.
Harish & Co., to be handed over to the respondent on
confirmation by the EOW of the appellant having withdrawn
his complaint dated 19.04.2010. The respondent was also
required to give further assurance to ensure that if any quashing
proceedings are initiated, he would cooperate in the same.
d. As per Clause 4.2, US$ 2 million was to be paid to the
respondent within seven (7) days of the receipt of the proceeds
from the sale of MSM’s shares.
e. The respondent was put to terms for committing any breach of
the Deed of Settlement in clause 6, the consequence of which
would be the termination of the Deed of Settlement and the
release of US$ 1.5 million kept in escrow back to the appellant.
f. The Deed of Settlement contained an arbitration clause for
resolution of disputes in clause 9. The said clause reads as
“9. If any dispute arises between the parties hereto in
relation to any provision of this Deed, the dispute shall
be referred to Arbitration by a single Arbitrator to be
appointed by mutual consent. The Arbitration
proceedings shall be governed by the Arbitration and
Conciliation Act, 1996 of India or any amendment
thereto. Courts in Mumbai shall have jurisdiction in
relation to any legal action or proceeding arising out of
or in connection with this Deed.”
3. The appellant claimed breach of the aforesaid Deed of Settlement
by an e-mail dated 09.06.2011 from the wife of the respondent informing
the appellant that “....once again you are not being straight with us, and
I’m concerned about this.” Copy of this e-mail was marked to some of
their associates. This was alleged to be the first breach. The second
breach was another e-mail dated 15.06.2011, once again, by the wife of
the respondent. The email stated that “I have no wish to continue to
fraternise with a forger.” Thereafter the e-mail sought to refer to the
Deed of Settlement and the alleged failure of the appellant not to give
updates to the respondent. This e-mail was also circulated to their
associates. On the respondent asking the appellant on 30.06.2011 to
complete the sale of shares for release of the second escrow cheque of
US$ 2 million, the appellant replied the same day stating that the
respondent could not push him to sell. The appellant also alleged the
breach of the Deed of Settlement by the false and defamatory e-mail on
15.06.2011. This triggered recourse to the arbitration clause.
Arbitral proceedings and Court proceedings in relation to arbitral
4. In July 2012, a share purchase agreement was executed for MSM’s
shares and the transfer was pending approval by the Foreign Investment
Promotion Board. The appellant filed a petition under Section 9 of the
Arbitration & Conciliation Act, 1996 (hereinafter referred to as the ‘said
Act’) seeking interim relief against the respondent, his wife, and the
escrow agent. The appellant claimed that the amount should not be
released to the respondent on account of the breach of the Deed of
Settlement through the e-mail sent by the respondent’s wife on
15.06.2011. In the said proceedings, being Petition No.853/2012, a
consent order was passed on 06.08.2012 in terms whereof the
respondent’s wife was dropped from the array of parties as she was not a
party to the Deed of Settlement. The disputes were referred by consent
to the sole arbitration of a former Judge of the Supreme Court of India. It
was further directed that the escrow agent would hand over the cheque
for US$ 1.5 million only after the direction of the arbitrator.
5. The appellant lodged a claim before the arbitrator seeking a refund
of US$ 1.5 million (Rs.8.49 crore) with 18 per cent interest per annum
w.e.f. 07.07.2011 till the date of payment. A statement of claim was filed
before the arbitrator dated 2.11.2012 in the following terms:
(a) that this Hon’ble Tribunal be pleased to hold and declare
that the Respondent has breached the Deed of Settlement dated
January 3, 2011 and severely harmed and damaged the hard-
earned reputation of the Claimant.
(b) that this Hon’ble Tribunal be pleased to hold and declare
that as a result of the breach of said Deed by the Respondent
the Respondent has caused damage to the Claimant as stated in
the Particulars of Claim or such amount as this Hon’ble
(c) that this Hon’ble Tribunal be pleased to order and direct
Respondent to compensate the Claimant and pay the damages
as stated in the Particulars of Claim (Annexure “S”) or such
amount as this Hon’ble Tribunal may deem just and reasonable
with interest thereupon as stated in the Particulars of Claim;
(d) that this Hon’ble Tribunal be pleased to order and direct
that the Respondent forthwith refund the sum of US$ 1.5
Million or Indian Rupees 8 crores 49 lakhs to the Claimant with
interest thereupon @ 18% per annum from July 7, 2011 till the
date of payment by the Respondent to the Claimant.
(e) that this Hon’ble Tribunal be pleased to order and direct
that the Respondent by himself his officers, servants, and
agents be restrained by an order and permanent injunction of
this Hon’ble Tribunal from seeking the release of, and/or
encashing the Second Cheque from the Escrow Agent and that
the Claimant be permitted to take custody of the Second
Cheque from the Escrow Agent or the Escrow Agent be
directed and ordered to hand-over the Second Cheque to the
(f) that this Hon’ble Tribunal be pleased to order and direct
that the Respondent by himself his officers, servants, and
agents be restrained by an order and permanent injunction of
this Hon’ble Tribunal from making any false, baseless and
defamatory statements against the Claimant in breach of the
express terms of the Deed of Settlement.
(h) For such further and other reliefs as the nature and
circumstances of the case may require and the Hon’ble Tribunal
deems fit.”
6. The respondent sought recourse to Section 16 of the said Act
seeking to raise a jurisdictional challenge against the reference, however
the arbitrator opined on 17.01.2013 that there could not be a threshold
rejection of the appellant’s claim. Thereafter the proceedings were
contested by the respondent.
7. It may be noticed that MSM’s shares were sold in March, 2013,
and on 06.04.2013, Atlas declared and paid dividend to its shareholders
from the proceeds. The appellant immediately thereafter filed an
application under Section 17 of the said Act seeking to attach an amount
of US$ 1.5 million which the respondent was to receive as his share of
the said proceeds. That application was rejected and further proceedings
in respect of the same also met the same fate in the High Court. That
being the position, the respondent filed a petition under Section 9 of the
said Act seeking directions to the escrow agent to hand over US$ 2
million on account of sale of MSM’s shares. However, the same was
dismissed on 02.04.2014 inter alia on the ground that the appellant was
resisting the payment and seeking a refund, and the appeal against the
same was dismissed as withdrawn.
8. The learned arbitrator made the final award on 10.11.2014,
awarding a claim for liquidated damages of US$ 1.5 million in favour of
the appellant, as set out in clause 6 of the Deed of Settlement. The award
also held that the respondent would not be entitled to the second cheque
of US$ 2 million held in escrow, on account of the respondent’s breach of
the Deed of Settlement.
9. The respondent moved a petition under Section 34 of the said Act
on 24.01.2015 before the Bombay High Court as Arbitration Petition
No.167/2015, while the appellant filed for execution of the award.
Consequently, the respondent also filed for stay of the enforcement of the
award. Interim stay was granted on 06.04.2018 and the SLP against the
same was dismissed, being SLP No.27085 of 2018. The learned Single
Judge of the High Court set aside the award in terms of the judgment
dated 19.05.2020. The appeal filed by the respondent under Section 37
of the said Act was dismissed by the Division Bench in terms of the
impugned judgment dated 20.04.2021. The High Court also granted
interim protection against withdrawal of the amount specified under the
Deed of Settlement for a limited period of time.
10. In the Special Leave Petition while issuing notice on 02.08.2021,
the interim arrangement by the High Court was extended and after grant
of leave, arguments were concluded on 28.09.2021.
11. In the conspectus of these facts, we feel the need for setting forth
certain legal principles within the contours of which the present dispute
needs to be adjudicated.
12. One of the issues raised before us is the nature of the award. The
appellant claims that it is an award arising out of an international
commercial arbitration. To appreciate this contention we turn to Section
2(1)(f) of the said Act, which reads as under:
(1) In this Part, unless the context otherwise requires,—
(f) “international commercial arbitration” means an
arbitration relating to disputes arising out of legal relationships,
whether contractual or not, considered as commercial under the
law in force in India and where at least one of the parties is—
(i) an individual who is a national of, or habitually resident in,
(ii) a body corporate which is incorporated in any country other
(iii) an association or a body of individuals whose central
management and control is exercised in any country other than
(iv) the Government of a foreign country;”
The admitted position is that the appellant is a party based in
Singapore and thus, in terms of the aforesaid definition the arbitration
although carried out a within the country, would be an “international
commercial arbitration”. We may notice at this stage that it is
nobody’s case that the award in question is a foreign award within the
meaning of Part II Section 44 of the said Act. For domestic awards,
Chapter 7 of the said Act provides recourse against the arbitral award.
Section 34 of the said Chapter provides for application for setting
aside an arbitral award and specifies the ground available for the
same. The Arbitration and Conciliation (Amendment) Act, 2015 (for
short ‘2015 Amendment Act’) amended the said Act w.e.f.
23.10.2015; inter alia by inserting Explanations to Section 34(2) of
the said Act as well as by inserting Sub-Section 2A to Section 34.
There is no doubt that the scope of interference by the Court became
more restrictive with the amendments coming into force. The pre-
amendment position with respect to expression “in conflict with
public policy of India” was enunciated by this Court in Ssangyong
Engineering and Construction Company Ltd. v. National Highways
Authority of India (NHAI)1, which referred to the judgment of this
Court in Associated Builders v. Delhi Development Authority2.
13. A distinction is sought to be carved out between a domestic award
arising from an international commercial arbitration and a purely
domestic award. The test for interference was sought to be made more
stringent by the amendment in respect of a domestic award arising from
an international commercial arbitration.
14. We may note that Explanation 1 sought to elucidate what is meant
by “in conflict with the public policy of India” by narrowing it to the
“Explanation 1.-For the avoidance of any doubt, it is clarified
that an award is in conflict with the public policy of India, only
(i) the making of the award was induced or affected by fraud or
corruption or was in violation of section 75 or section 81; or
(ii) it is in contravention with the fundamental policy of Indian
(iii) it is in conflict with the most basic notions of morality or
justice.”
15. The further elucidation is by Explanation 2, which reads as under:
“Explanation 2.-For the avoidance of doubt, the test as to
whether there is a contravention with the fundamental policy of
Indian law shall not entail a review on the merits of the
dispute.”
16. A distinction is sought to be made between purely domestic
awards and awards arising out of arbitrations other than international
commercial arbitrations, as set out in sub-section 2A to Section 34 of the
“(2A) An arbitral award arising out of arbitrations other than
international commercial arbitrations, may also be set aside by
the Court, if the Court finds that the award is vitiated by patent
illegality appearing on the face of the award:
Provided that an award shall not be set aside merely on the
ground of an erroneous application of the law or by
reappreciation of evidence.”
17. The crux of the aforesaid is that while the plea of the award being
vitiated by patent illegality is available for an arbitral award, such an
award has to be a purely domestic award, i.e. the plea of patent illegality
is not available for an award which arises from international commercial
arbitration post the amendment.
18. We are noticing the aforesaid distinction as it appears that the
judgments of the learned Single Judge and the Division Bench decide the
challenge to the award on the plea of patent illegality without noticing
this distinction. No doubt both judgments proceed on the basis that in
either situation, i.e., within the test available for a purely domestic award
or a domestic award arising from an international commercial arbitration;
the award cannot be sustained. Thus far as to the nature of the award.
Whether the amendment would apply in the facts of the present case:
19. It is the say of the appellant that the award has to be scrutinised in
the post amendment scenario and, thus, both the forums below fell into
error by applying the test applicable in the pre-amendment scenario. It
is, thus, the appellant’s say that patent illegality has no application as a
test to the award in question.
20. It is not in dispute that the Section 34 proceedings commenced
prior to 23.10.2015, which is the crucial date. As to when the
amendment would apply is an aspect that is no longer res integra. We
may refer to relevant judicial pronouncements in this regard.
21. In Board of Control for Cricket in India v. Kochi Cricket Pvt.
Ltd. & Ors.3 a reference was made to Section 26 of the 2015 Amendment
Act which had bifurcated proceedings into arbitral proceedings and court
proceedings. The said provision reads as under:
“26. Nothing contained in this Act shall apply to the arbitral
proceedings commenced, in accordance with the provisions of
Section 21 of the principal Act, before the commencement of this
Act, unless the parties, otherwise agree but this Act shall apply in
relation to arbitral proceedings commenced on or after the date of
commencement of this Act.”
22. It was clearly elucidated in para 39 of the judgment that the reason
behind the first part of Section 26 of the 2015 Amendment Act being
couched in the negative was only to state that the Amendment Act will
apply even to arbitral proceedings commenced before the amendment if
the parties otherwise agree. This is not so in the second part. The
judgment derived that the intention of the legislature was to mean that the
2015 Amendment Act is prospective in nature and will apply to those
arbitral proceedings that are commenced, as understood by Section 21 of
the said Act, on or after the 2015 Amendment Act, and to court
proceedings which had commenced on or after the 2015 Amendment Act
came into force.
23. The applicability of Section 34(2A) was further elucidated in
Ssangyong Engineering and Construction Company Ltd. v. National
Highways Authority of India4, where the SC categorically opined that
Section 34 as amended will apply only to Section 34 applications that
have been made to the Court on or after 23.10.2015, irrespective of the
fact that the arbitration proceedings may have commenced prior to that
date.
24. In the subsequent judgment of Hindustan Construction Company
Ltd. and Anr. v. Union of India & Ors. 5,it was observed in para 60 that
the result of the BCCI judgment was that salutary amendments made by
the 2015 Amendment Act would apply to all court proceedings initiated
after 23.10.2015.
25. The contention of the appellant, faced with the aforesaid judicial
pronouncements, solely rests on the wording of clause 9 of the Deed of
Settlement, which provides that “the Arbitration proceedings shall be
governed by the Arbitration and Conciliation Act, 1996 of India or any
amendment thereto.”(Emphasis supplied). The submission thus was
that this phraseology of clause 9 included the possibility of any future
amendments to the said Act being made applicable to the arbitration in
question.
26. We have to thus examine the effect of such phraseology used in the
arbitration clause.
27. In the context of the Arbitration Act, 1940 (hereinafter referred to
as the ‘Old Act’) and the said Act, there are some observations in
Thyssen Stahlunion Gmbh v. Steel Authority of India Limited 6, which
are relevant for the purposes of this discussion. While opining that the
provisions of the Old Act would apply in relation to arbitral proceedings
which had commenced before the coming into force of the said Act, this
Court referred to the ‘Repeal and savings’ provision in Section 85(2)(a)
of the said Act. It was observed that the phrase “in relation to arbitral
proceedings” cannot be given a narrow meaning so as to mean only
pendency of arbitration proceedings before the arbitrator, but would also
cover proceedings before the court. The appellants cited two judgments
of the Bombay High Court in support of their case, i.e., Padmini
Chandran Menon v. Vijay Chandran Menon7 and Board of Trustees of
the Pot of Mumbai v. Afcons Infrastructure Limited,8 which in turn rely
on Thyssen Stahlunion Gmbh(supra).
28. However, the general observations aforesaid cannot come to the
aid of the appellant in view of a number of judicial pronouncements by
this Court which deal with a similar issue.
29. In S.P. Singla Constructions Pvt. Ltd. v. State of Himachal
Pradesh & Anr.9, the arbitration clause provided that the arbitration
would be subject to the provisions of the Arbitration Act, 1940 or any
statutory modification or re-enactment thereof. A plea was raised that the
amended provisions would apply in accordance with Section 26 of the
2015 Amendment Act. This contention was repelled by the Court which
opined that such general conditions of the contract cannot be taken to be
an agreement between the parties to apply the provisions of the 2015
Amendment Act. As a result, the provisions of the 2015 Amendment Act
would apply only in relation to arbitral proceedings commenced on or
after the date of commencement of the 2015 amendment.
30. In a similar vein, the arbitration clause in Union of India v.
Parmar Construction Company10provided that “subject to the provisions
of the aforesaid Arbitration and Conciliation Act, 1996 and the Rules
thereunder and any statutory modifications thereof shall apply to the
arbitration proceedings under this Clause.”
Relying on this clause, a contention was sought to be raised that
the 2015 Amendment Act would apply to the arbitral proceedings which
had been pending on 23.10.2015.It was opined by this Court that a
conjoint reading of Section 21 of the said Act and Section 26 of the 2015
Amendment Act left no manner of doubt that the provisions of the 2015
Amendment Act shall not apply to arbitral proceedings which had
commenced in terms of the provisions of Section 21 of the said Act
unless the parties otherwise agree. Whether the application was pending
for appointment of an arbitrator or in the case of rejection because of no
claim as in that case for appointment of an arbitrator including
change/substitution of the arbitrator was held not to be of any legal effect
for invoking the provision of the 2015 amendment. While S.P. Singla11
and Parmar Construction Company12 opined on the topic of arbitral
proceedings, we may note here that the matter concerns Section 34
proceedings for setting aside the award. In this case, the Section 34
proceedings had already commenced when the 2015 Amendment Act
came into effect. The court proceedings were already subject to the pre-
2015 legal position. In a conspectus of the aforesaid, a generally worded
clause such as Clause 9 of the Deed of Settlement cannot be said to
constitute an agreement to change the course of law that the Section 34
proceedings were subject to. We may also note that a learned single
Judge of the Delhi High Court in ABB India Ltd. v. Bharat Heavy
Electricals Ltd.13, while referring to the judgment in Parmar
Construction Company14 case, has proceeded in accordance with this
Court’s observations while distinguishing the judgment in Thyssen
Stahlunion Gmbh15.In the context of anticipating new enactments that
may come into operation, it was opined that while Thyssen Stahlunion
Gmbh16 dealt with Section 85(2)(a) of the said Act, this provision is
dissimilar to Section 26 of the 2015 Amendment Act. Section 26 starts
with a negative covenant which is subject to an exception in the case of
an agreement between the parties, whereas the observations in Thyssen
Stahlunion Gmbh17were coloured by Section 85(2)(a) of the said Act
which is structured differently. We refer to the same only to give our
imprimatur. The relevant portion of ABB India Ltd. (supra) reads as
“71. Besides, in Thyssen Stahlunion GMBH, there was no
provision, similar to Section 26 of the 2015 Amendment Act,
which is crucial to adjudication of the dispute in the present case.
In this context, it is necessary to distinguish the structure of
Section 85(2)(a) of the 1996 Act, with Section 26 of the 2015
Amendment Act. Whereas Section 85 (2)(a) of the 1996 Act made,
inter alia, the 1940 Act applicable to arbitral proceedings which
commenced before the coming into force of the 1996 Act, unless
otherwise agreed by the parties. Section 26 of the 2015
Amendment Act starts with a negative covenant, to the effect that
nothing contained in the 2015 Amendment Act – which would
include the insertion of Section 12(5) of the 1996 Act – would
apply to arbitral proceedings, commenced before the 2015
Amendment Act came into force, i.e. before 23rd October, 2015.
This negative covenant was subject to an exception in the case of
agreement, otherwise, by the parties. Structurally and conceptually,
therefore, Section 26 of the 2015 Amendment Act is fundamentally
different from Section 85(2)(a) of the 1996 Act, and requires,
therefore, to be interpreted, keeping this distinction in mind.”
31. We may note that the line of reasoning in Ssangyong Engineering
and Construction Company Ltd.18 itself shows that to prevent any
uncertainty in law, while seeking to fine tune the law to restrict the scope
of interference in awards the legislature took a conscious decision to
make applicable the amendments only from the date it came into force.
Thus, the general phraseology of a clause which seeks to include any
amendment to the Act would not be able to be availed of to expand the
scope of scrutiny as it would appear to run contrary to the legislative
intent of Section 26 of the Amendment Act. In this regard it may be
appropriate to refer to the Supreme Court’s observations in Ssyangong
Engineering and Construction Company Ltd.19 (supra) relating to the
scope of ‘public policy’ as a ground to set aside arbitral awards before the
24. Yet another expansion of the phrase “public policy of India”
contained in Section 34 of the 1996 Act was by another judgment of
this Court in Western Geco [ONGC v. Western Geco International
Ltd., (2014) 9 SCC 263 : (2014) 5 SCC (Civ) 12] , which was
explained in Associate Builders [Associate Builders v. DDA, (2015) 3
SCC 49 : (2015) 2 SCC (Civ) 204] as follows : (SCC pp. 73-77, paras
“28. In a recent judgment, ONGC v. Western Geco International
Ltd. [ONGC v. Western Geco International Ltd., (2014) 9 SCC 263 :
(2014) 5 SCC (Civ) 12] , this Court added three other distinct and
fundamental juristic principles which must be understood as a part
and parcel of the fundamental policy of Indian law. The Court held :
29. It is clear that the juristic principle of a “judicial approach”
demands that a decision be fair, reasonable and objective. On the
obverse side, anything arbitrary and whimsical would obviously not
be a determination which would either be fair, reasonable or
objective.
30. The audi alteram partem principle which undoubtedly is a
fundamental juristic principle in Indian law is also contained in
Sections 18 and 34(2)(a)(iii) of the Arbitration and Conciliation Act.
‘18. Equal treatment of parties.—The parties shall be treated with
equality and each party shall be given a full opportunity to present his
case.
34. Application for setting aside arbitral award.—(1)
(2) An arbitral award may be set aside by the court only if—
(a) the party making the application furnishes proof that—
(iii) the party making the application was not given proper notice
of the appointment of an arbitrator or of the arbitral proceedings or
was otherwise unable to present his case;’
31. The third juristic principle is that a decision which is perverse
or so irrational that no reasonable person would have arrived at the
same is important and requires some degree of explanation. It is
(ii) an Arbitral Tribunal takes into account something irrelevant to
(iii) ignores vital evidence in arriving at its decision,
such decision would necessarily be perverse.”
32. We have considered the aforesaid two legal issues which would
govern the present case and have come to the conclusion that it would be
the pre-2015 legal position which would prevail. That being the
position, we would have to examine whether in the conspectus of that
legal position it can be said that the learned Single Judge and the
Division Bench erred in setting aside the award.
33. It is no doubt true that the arbitrator has the first hand benefit of
recording evidence and examining the factual scenario. The present case
is one which is solely based on an interpretation of a clause against the
background of a dispute which gave rise to the Deed of Settlement. We
have reproduced the relevant clauses which would emphasise that the
respondent was required to take a couple of steps back from the position
they had reached in the dispute, in order to avail the financial benefit
under the Deed of Settlement.
34. The first such step was to withdraw all complaints and proceedings
against appellant and all other named and unnamed persons before the
EOW. The respondent complied with the same and all such proceedings
were brought to an end. US $ 1.5 million was kept in escrow to ensure
that those proceedings came to an end, and on achieving the said
objective the escrow amount had to be released to the respondent.
35. The second stage was of the sale of shares and the escrow amount
of US$ 2 million was to be paid to the respondent when the shares were
sold. It appears that there was some delay in the sale of shares which is
what was objected to by the wife of the respondent and the appellant
claimed that he could not be pushed into an early sale. Be that as it may,
the sale did take place. Thus, the necessary conditions of the Deed of
Settlement stood satisfied. It is in this context that we have to consider
whether clause 6 would come into play, so as to deprive the respondent
of the benefits which were two fold, i.e., monetary benefit to cease and
desist on complaints and litigations, and the proceeds from the sale of
shares that were owned by him. Clause 6 provided for the return of the
amount of US$ 1.5 million in case the representations/assurances of the
respondent turn out to be false or incorrect. That was not the case. The
only aspect emphasised by the appellant as a cause for denying the
respondent his dues are the two e-mails sent by his wife. We may note
here that though the wife was initially impleaded in the proceedings
under Section 9 of the said Act, she was later dropped from the
arbitration proceedings as she was not a party to the agreement vide
consent order dated 06.08.2012. In a sense the agreement accepted that
the wife of the respondent had no role to play and the respondent could
not be penalised for her conduct.
36. We may note that what has weighed with the Courts below is the
fact that the respondent did nothing to ratify the e-mails of his wife. The
effect of the award would be to deprive the respondent of the due
valuation of the shares and what was paid to him to bring his complaints
to an end.
37. Even if we turn to the complaints of the wife, at best they would
fall in the category of some indiscreet language. The e-mail dated
09.06.2011 makes a grievance to the appellant about not being informed
about the deal term sheet having been signed and uses the expression that
the appellant was not being “straight with us.” This can hardly be
objected to. Of course, this was circulated to their associates but the e-
mail itself can hardly be called damaging. If we turn to the e-mail dated
15.06.2011, once again, a grievance about updates not being given is
made. Certainly, the sentence “I have no wish to fraternise with a
forger.” must be called wholly inappropriate. But then, that by itself
cannot deny the respondent of his dues merely because of such an
indiscreet e-mail by his wife, who was not even party to the proceedings
nor party to the Deed of Settlement which contained the arbitration
clause. It is in the aforesaid context that the impugned orders have been
delivered and we consider it appropriate to extract para 23 of the learned
Single Judge’s order which succinctly set forth what would be the
consequences of the result of the award.
“23. When we see the bizarre outcome it has brought about in
the matter, the extent of the fallacy can be realised better. The
Respondent got practically everything that he wanted from the
Petitioner in return for payment of USD 3,500,000 to the latter. He
got the EOW complaint withdrawn; he got the Petitioner to ratify
the original Placement Instruction to SCB for sale of Atlas shares
and for making over of the consideration to Grandway; he got an
irrevocable power of attorney in his name for sale of shares of
Atlas from the Petitioner; he got all the Petitioner’s claims against
him, his wife and Atlas and Grandway and their shareholders
released; he got the Petitioner’s resignation from the Board of
Atlas; he got an agreement and irrevocable consent from the
Petitioner for sale and transfer of Atlas shares; he got an agreement
or consent from the Petitioner for dividend distribution and
winding up of Atlas in a manner as the Board and the other
shareholders might deem fit; and he got a confirmation of no claim
against him or his family member or Atlas or Grandway of their
shareholders by the Petitioner. And after all that is done, he even
gets back his entire money of USD 3,500,000. And that because
the Petitioner’s wife calls him a ‘forger’ in a private
communication made to a couple of acquaintances or associates.
Can such award be ever sustained as something a fair and
judiciously minded person could have made. In my humble
opinion, it is the very opposite of justice; it would be a travesty of
justice to uphold such award.”
38. The aforesaid scenario cannot be countenanced and this is what
has been responsible for interference with the award of the learned
arbitrator in the context of the legal position applicable to the award pre
the amendment. We find that the arbitrator’s conclusions are not in
accordance with the fundamental policy of Indian law, and can thus be
set aside under the pre-2015 interpretation of S. 34 of the said Act. We
may also note that clause 6 of the Deed of Settlement could not have
been relied on to award liquidated damages in favour of the appellant, we
agree with the observations of the Single Judge and the Division Bench
in this regard. In fact, the consequences are so inappropriate that the
same appears to be the reason that both the learned Single Judge and the
Division Bench have opined that whatever be the position that is
applicable - pre or post amendment, in these facts the award would not
stand, something with which we agree.
39. In the conspectus of the aforesaid discussion we are not able to
find fault with the judgment of the learned Single Judge and the Division
Bench to the extent it interferes with the award and sets aside the award.
Consequently, the appeal is dismissed with costs.
|
The Supreme Court has held that the 2015 amendment to Section 34 of the Arbitration and Conciliation Act 1996 will apply only to Section 34 applications that have been made after the date of the amendment. "Section 34 as amended will apply only to Section 34 applications that have been made to the Court on or after 23.10.2015, irrespective of the fact that the arbitration proceedings may...
The Supreme Court has held that the 2015 amendment to Section 34 of the Arbitration and Conciliation Act 1996 will apply only to Section 34 applications that have been made after the date of the amendment.
"Section 34 as amended will apply only to Section 34 applications that have been made to the Court on or after 23.10.2015, irrespective of the fact that the arbitration proceedings may have commenced prior to that."
A Bench of Justices Sanjay Kishan Kaul and M.M.Sundaresh made the above observations in a case where the applicability of S.34 to international commercial dispute was in question.
The judgement, authored by Justice Kaul in a case titled Ratnam Sudesh Iyer v Jackie Kakubhai Shroff- examined the question whether an arbitration award can be challenged on the grounds of 'patent illegality if the arbitration proceedings had commenced before the 2015 Amendment Award coming into force.
Factual Background:
The appellant and respondent agreed to a Deed of Settlement to settle some pending disputes. The Deed of Settlement contained an arbitration clause for the resolution of disputes. Some facts triggered the arbitral proceedings and ultimately on 10.11.2014, the arbitrator made the final award awarding a claim of liquidated damages in favor of the appellant. The respondent moved a petition under S.34 of the Act before the Bombay High Court. The learned Single Judge of the High Court set aside the award in terms of the judgment dated 19.05.2020. The appeal filed by the respondent under Section 37 of the said Act was dismissed by the Division Bench in terms of the impugned judgment dated 20.04.2021.
The appellant argued that the Award could not be challenged under S.34 of the Act on the grounds of patent illegality since post the 2015 Amendment, patent illegality could not be used as a ground to challenge award in international commercial arbitration matters.
Court's Reasoning
On the nature of Award.
The Court noted that since the appellant was a party based out of Singapore, thus in terms of S.2)f) of the Act, the arbitration would be an international commercial arbitration and the award in question would be a domestic award arising out of an international commercial agreement.
This is an important finding in light of the changes in the position of law under S.34 post-2015 Amendment.
On 2015 Amendment and S.34 of the Act
The court noted that with the 2015 Amendment which inserted Explanations to S.34(2) of the Act as well as Sub-section 2A of S.34, "the scope of interference by the Court became more restrictive with the amendments coming into force."
The Court notes that by way of the 2015 Amendment a distinction is sought to be carved out between a domestic award arising from an international commercial arbitration and a purely domestic award. The test for interference was sought to be made more stringent by the amendment in respect of a domestic award arising from an international commercial arbitration. (Para 13)
The Court notes, that the crux of the Amendment is that:
" While the plea of the award being vitiated by patent illegality is available for an arbitral award, such an award has to be a purely domestic award, i.e. the plea of patent illegality is not available for an award which arises from international commercial arbitration post the amendment." (Para 17)
The Court notes that the judgments of the Single Judge and Division Bench decided the award of the plea of patent illegality without making note of this change in position of law post the 2015 Amendment.
This distinction is crucial because the appellant had argued that the award must be scrutinised in the post-amendment scenario and thus both forums erred in applying the test of patent illegality which would be applicable only for pre-amendment scenario. The appellant claimed that the patent illegality test would have no application to the award in question.
Against this backdrop, the Court analyses whether the 2015 Amendment would be applicable in this case.
Whether 2015 Amendment would apply to the present case
The Court notes that it is not disputed that S.34 proceedings commenced prior to 23.10.2015-which is when the Amendment came into force.
The Court relies on Board of Control for Cricket in India v Kochi Cricket Pvt Ltd & Ors, which had held that 2015 Amendment Act is prospective in nature and would apply to arbitral proceedings commended on or after 2015 Amendment Act. It further relied on Ssangyong Engineering and Construction Company Ltd. v. National Highways Authority of India , where the SC categorically opined that Section 34 as amended will apply only to Section 34 applications that have been made to the Court on or after 23.10.2015, irrespective of the fact that the arbitration proceedings may have commenced prior to that.
At this point, it is important to note that the appellant tried to rely on the wording of clause 9 of the Deed of Settlement signed between parties which provided that "the Arbitration proceedings shall be governed by the Arbitration and Conciliation Act, 1996 of India or any amendment thereto." The submission of the appellant was that the phrase used would include the possibility of any future amendment of the said Act. The appellant relied on Thyssen Stahlunion Gmbh v Steel Authority of India Limited.
In light of this submission, the Court noted that:
"the general observations aforesaid cannot come to the aid of the appellant in view of a number of judicial pronouncements by this Court which deal with a similar issue." (Para 28)
The Court referred to S.P.Singla Constructions Pvt ltd s State of Himachal Pradesh, where the SC had held that general conditions of the contract cannot be taken to be an agreement between parties to apply the provisions of 2015 Amendment Act and as a result, 2015 Amendment Act would apply only in relation to arbitral proceedings commenced or or after the date of commencement. (Para 29)
To further repel the argument of the appellant and the reliance sought to be made to the Thyssen Stahlunion Gmbh case, the Court referred to the Delhi High Court judgement in ABB India Ltd v Bharat Heavy Electricals Ltd, which in a similar case, had distinguished the judgment in Thyssen Stahlunion Gmbh.
The Court reproduced Para 17 of the ABB India Ltd case:
"in Thyssen Stahlunion GMBH, there was no provision, similar to Section 26 of the 2015 Amendment Act, which is crucial to adjudication of the dispute in the present case. In this context, it is necessary to distinguish the structure of Section 85(2)(a) of the 1996 Act, with Section 26 of the 2015 Amendment Act. Whereas Section 85 (2)(a) of the 1996 Act made, inter alia, the 1940 Act applicable to arbitral proceedings which commenced before the coming into force of the 1996 Act, unless otherwise agreed to by the parties. Section 26 of the 2015 Amendment Act starts with a negative covenant, to the effect that nothing contained in the 2015 Amendment Act – which would include the insertion of Section 12(5) of the 1996 Act – would apply to arbitral proceedings, commenced before the 2015 Amendment Act came into force, i.e. before 23rd October, 2015. This negative covenant was subject to an exception in the case of agreement, otherwise, by the parties. Structurally and conceptually therefore, Section 26 of the 2015 Amendment Act is fundamentally different from S.85(2) of the 1996 Act and requires, therefore, to be interpreted, keeping this distinction in mind." (Para 30)
In light of the above cases which govern the issue at hand, the Court held that the pre-2015 legal position would prevail and that the respondent could challenge the domestic award in an international commercial arbitration on the ground of patent illegality.
It notes:
"In this case, the Section 34 proceedings had already commenced when the 2015 Amendment Act came into effect. The court proceedings were already subject to the pre-2015 legal position. In a conspectus of the aforesaid, a generally worded clause such as Clause 9 of the Deed of Settlement cannot be said to constitute an agreement to change the course of law that the Section 34 proceedings were subject to." (Para 30)
The Court then examines the Arbitration Award and holds that the arbitrator's conclusions are not in accordance with the fundamental policy of Indian Law can thus be set aside as per the pre-2015 interpretation of S.34 of the Act.
The court affirms the judgment of the Single Judge and Division Bench to the extent it interfered with the award and sets aside the award.
Case Name: Ratnam Sudesh Iyer v Jackie Kakubhai Shroff
Coram: Justices Sanjay Kishan Kaul and M.M.Sundaresh
Case No: CIVIL APPEAL NO. 6112 OF 2021
|
No one has appeared on behalf of the Respondent No.2 in spite
of notice.
This appeal is against an order dated 24.11.2021 passed by the
High Court of Punjab and Haryana at Chandigarh dismissing Criminal
Misc. No.33701/2021 in Criminal Miscellaneous Petition No. 33995 of
2021 filed by the Appellant for permission to travel back to the
United States of America, where he has a job, and resume his
duties.
The short question in this appeal is, whether the Appellant
can be denied his fundamental right of personal liberty to travel
abroad, subject to possession of a valid passport, visa and other
requisite travel documents, only because he is arrayed as accused
in a complaint filed by his brother’s wife against his brother
being the husband of the complainant and his parents, particularly
mother and that too when the allegations in the complaint do not
disclose any criminal offence on the part of the Appellant. The
answer to the aforesaid question has to be in the negative.
The Appellant is the brother-in-law (husband’s brother) of the
Respondent No.2 (hereinafter referred to as the “complainant”). The
Appellant is employed in Texas in the United States of America.
The complainant Annupriya Sharma, a permanent resident of
Kurukshetra was married to Nitin Sharma, brother of the Appellant,
according to the Hindu rites and customs on 20.01.2019.
On 03.02.2019, the complainant’s husband went back to the
United States of America, where he had been working. On 16.02.2019,
the complainant left for the United States of America, to join her
husband. She had to travel alone.
The complainant has stated that the said Nitin Sharma had been
working as Application Engineer in a Multinational Company NOVOPLM
(SCONCE), and had been residing in the United States of America
since 2009 on H1B-Visa. The said Nitin Sharma apparently resides
at Charlotte in North Carolina, as would be evident from the array
of accused persons in the complaint.
It appears that there were differences and matrimonial
disputes between the complainant and her husband Nitin Sharma,
brother of the Appellant from the inception of their marriage.
According to the complainant she was also harassed for dowry by her
parents-in-law, particularly mother-in-law.
On 16.08.2019, the complainant returned to India, allegedly at
the behest of her in-laws. In November 2019, the complainant’s
parents-in-law returned to India. After the complainant’s parents-
in-law returned, the complainant and her parents tried to contact
them and also tried to contact the complainant’s husband Nitin
Sharma. The complainant’s in-laws tried to avoid the complainant
and her parents on one pretext or the other and the complainant’s
husband Nitin Sharma did not answer their calls. The complainant
was not allowed to live in her matrimonial home at Faridabad.
On 07.09.2020, an FIR was filed by the complainant against her
husband and in-laws under Sections 323, 34, 406, 420, 498A and 506
of the Indian Penal Code, 1860 was registered at the Thanesar City
Police Station at Kurukshetra under Section 154 of the Criminal
Procedure Code, 1973. The complainant’s husband Nitin Sharma, her
father-in-law, Suresh Chand Sharma, her mother-in-law, Satyawati
Sharma and the Appellant were arrayed as Accused Nos. 1, 2, 3 and 4
In a nutshell, the material allegations in the FIR were:
(i) The accused pressurized the complainant’s family to organise
the marriage ceremony of the complainant and the said Nitin
Sharma (Accused No.1) at Faridabad instead of Kurukshetra. As
ceremonies/functions were held at Kurukshetra and Faridabad
complainant’s parents incurred expenditure of Rs.23 lakhs.
(ii) The complainant’s mother-in-law (Accused No.3) had demanded
gold ornaments of her choice, saying that her elder daughter-
in-law had brought 70 tolas of gold.
(iii) After marriage the complainant’s in-laws expressed
dissatisfaction over the dowry brought by her. Her mother-in-
law (Accused No.3) taunted her for bringing less dowry.
(iv) The complainant’s mother in law (Accused No.3) insulted the
complainant even more after a cousin of the complainant’s
husband, whose marriage took place three days after the
complainant got married, was gifted a car by the bride’s
family. It is alleged that the complainant’s mother-in-law
(Accused No.3) demanded a car.
(v) The complainant’s husband (Accused No.1) was not interested in
her and found excuses to harass her. He returned home late in
an inebriated state and fought with her without reason. After
watching television till late at night, he slept on the couch.
(vi) The complainant's husband (Accused No.1) did not allow her to
go out of the Apartment. He did not arrange for social
security, health insurance or driving licence for the
complainant. He also did not allow her to obtain the same on
her own.
(vii) The complainant’s husband (Accused No.1) made the complainant
dependent on him even for small things. He did not give
attention to her health, and smoked at home and also stocked
non-vegetarian food in the refrigerator, though, before
marriage, he had told her that he was a vegetarian and a non-
smoker. The complainant’s husband (Accused No.1) twisted her
arms when she tried to stop him from smoking.
(viii) On the pretext of going to play cricket, the complainant’s
husband left the house early and returned at 3 o’clock at
night. She suspected he was living with a lady, after she
found lease documents in a closet. When the complainant asked
her husband(Accused No.1) about the lease documents, he left
the apartment without giving any answer. He had been in a
live-in relationship with a woman before marriage. This had
not been disclosed to the complainant.
(ix) On one occasion, after the complainant’s husband (Accused No.
1) had intoxicated himself with weed (Marijuana), the
complainant found weed pipe in her husband’s pocket. When
she told this to her brother-in-law (the Appellant) and his
wife, the complainant’s husband (Accused No.1) abused her,
pushed her and twisted her arm.
(x) The complainant’s husband (Accused No.1) tortured and harassed
her with a view to make her leave or to compel her to commit
suicide.
(xi) In June 2019, the complainant’s parents-in-law (Accused Nos.2
and 3) went to U.S.A. Instead of solving the complainant’s
problems, they both (Accused Nos. 2 and 3) started harassing
(xii) The complainant’s mother-in-law (Accused No.3) gave the
complainant stale food and scolded her without reason. When
the complainant protested, her husband (Accused No.1) rebuked
her for raising her voice in front of her parents-in-law and
insulting them.
(xiii) The complainant’s husband’s family told the complainant to
go to India, so that they could reform her husband.
Accordingly, she came to India in August, 2019.
(xiv) When the complainant’s parents-in-law returned to India in
November, 2019 the complainant and her parents tried to contact
them (Accused Nos. 2 and 3) and also tried to contact the
complainant’s husband (Accused No.1). The complainant’s
parents-in-law (Accused Nos. 2 and 3) avoided the complainant
and her parents, giving excuses, and the complainant’s husband
(Accused No.1) did not take calls.
(xv) The complainant’s parents-in-law (Accused Nos.2 and 3)
insulted the complainant’s parents when they went to visit the
complainant’s parents-in-law and they did not allow the
complainant to live in her matrimonial home at Faridabad. They
made it clear that the complainant would be allowed to stay in
her matrimonial home in Faridabad and be sent to USA only if
their dowry demands were satisfied.
(xvi) The accused have collectively ruined the complainant’s life
by falsely representing that the complainant’s husband(Accused
No.1) was a vegetarian, a teetotaller and non-smoker, when in
fact he was a non-vegetarian, a chain smoker and an alcoholic
and also by suppressing his live-in relationship with another
woman.
In the entire complaint there is no specific complaint against
the Appellant. The only allegations against the Appellant are:
“My mother-in-law and my brother-in-law have taken all
gold and have kept with them. I went to USA with one
Mangal Sutra and Chain.
I am religious and vegetarian, which was known to
Nitin. For the purpose of harassing me, he used to
stock non-veg in the refrigerator. Before marriage,
he himself stated that he is non-smoker, non-drinker
and vegetarian, whereas truth was against this. He
used to take intoxicated materials. One time, I found
weed pipe from his pocket. When this fact was brought
into the notice of my brother-in-law, he instead asked
me to accept the culture of Nitin.
One day, Nitin came after doing intoxication (weed
marijuana), I thought that I found weed pipe earlier
from his pocket and he may not have the habit of weed,
then I told about this to his brother and sister-in-
law. On this Nitin started abusing and pushed me while
twisting my arm and he had been playing psychological
game and had been torturing and harassing, so that
either I myself leave him or commit suicide. My
brother-in-law threatened me to remain quiet otherwise
Nitin is a very bad enemy.”
The allegations in the complaint against the Appellant prima
facie do not disclose, against the Appellant, any offence under
Section 498A of the IPC, which contemplates cruelty, that is
willful conduct of such a nature, as is likely to drive the woman
to commit suicide or to cause grave injury or danger to the life,
limb or health (whether physical or mental) of the woman.
It is interesting to note that in the complaint, the
complainant has given the address of her husband in U.S.A. in
addition to his permanent address at Faridabad. The complainant
has, for reasons known to herself, not made any reference in her
complaint to the fact that the Appellant is a resident of Texas,
where he is working. The complaint gives the impression that the
Appellant is a resident of Faridabad.
From the complaint itself, it is patently clear that the
Appellant does not reside in the same premises as his brother,
being the husband of the complainant. The averments in the
pleadings in the Courts below read with the complaint show that
they do not even live in the same place. The Appellant works in
Texas, U.S.A., whereas his brother lives and works in North
Section 498A of the IPC is extracted hereinbelow for
“498-A. Husband or relative of husband of a woman
subjecting her to cruelty.—Whoever, being the husband or
the relative of the husband of a woman, subjects such woman
to cruelty shall be punished with imprisonment for a term
which may extend to three years and shall also be liable to
fine.”
The complainant has not given any particulars of the jewellery
that had allegedly been taken by her mother-in-law and brother-in-
law. There is not a whisper of whether any jewellery is lying with
the Appellant. It is not even alleged that the Appellant forcibly
took away or misappropriated the complainant’s jewellery or refused
to return the same inspite of request. Taking custody of jewellery
for safety cannot constitute cruelty within the meaning of Section
498A of the IPC.
There is not even any allegation against the Appellant of any
demand or threat or torture for dowry or property. Failure to
control an adult brother, living independently, or giving advice to
the complainant to adjust to avoid vindictive retaliation from the
Accused No. 1 cannot constitute cruelty on the part of the
Appellant within the meaning of Section 498A of the IPC.
There are no specific allegations against the Appellant of
misrepresentation or concealment. There is not a whisper of the
Appellant’s role in the marriage negotiations that took place in
India. As observed above, the Appellant who is the elder brother-
in-law of the complainant, resides in U.S.A. There is only a
general omnibus allegation that all the accused ruined the life of
the complainant by misrepresentation, concealment, etc. On the
face of the averments in the complaint, the complainant’s husband
made certain misrepresentations to her. The Appellant is not
liable for the acts of cruelty, or any other wrongful and/or
criminal acts on the part of his parents or brother.
There is nothing specific against the Appellant except the
vague allegation that the Appellant and his mother, that is the
complainant’s mother-in-law kept her jewellery. The only other
allegation is that the Appellant had not done anything, when the
complainant had spoken to the Appellant about his brother’s conduct
and behaviour, he had told the complainant to remain quiet as Nitin
could be a very bad enemy. In any event a deed of compromise has
now been executed between the complainant and her husband being the
Accused No. 1. A copy of the compromise settlement has been
enclosed. The Appellant is not party to the settlement.
Having regard to the nature of the allegations, it is not
understood how and why the Appellant should have been detained in
India. In our considered opinion, the Chief Judicial Magistrate,
Kurukshetra, erred in directing this Appellant not to leave the
country without prior permission of the Court. The High Court
rejected the prayer of the Appellant to leave the country with the
“I have heard learned counsel for the Applicant-Petitioner
No.4, learned State Counsel and perused the record.
This Court vide order dated 13.10.2021 heard the parties
and in view of the agreed position directed them to appear
before the Magistrate concerned for recording their
statement on 28.10.2021. Thereafter, learned Chief
Judicial Magistrate, Kurukshetra, sent its report dated
02.11.2021. It has been recorded in the statement that
complainant-respondent No.2 had stated that she is not
willing to get her statement recorded regarding compromise
as the divorce proceeding between her and her husband,
namely, Nitin, were pending before the Family Court,
Kurukshetra, for 22.02.2022 for recording of the second
motion statement. She stated that she wanted to get her
statement recorded regarding compromise as well as under
second motion on the same day as there was apprehension of
fleeing away of her husband who is working in USA.
As the complainant expressed her non-willingness to get
the statement recorded regarding compromise, the statement
of the parties could not be recorded. The main petition
has been filed for quashing of the FIR on the basis of the
compromise arrived at between the parties. As the
complainant had the apprehension that the accused might
flee to USA hence she expressed her willingness for not
recording her statement till 22.02.2022 when the case is
fixed before the Family Court for recording the second
motion statement.
In view of the statement made by the complainant-
respondent No.2, this Court finds no merit in the present
application for allowing applicant-petitioner No.4 to leave
the country during pendency of the present petition.
The application being devoid of any merit is hereby
dismissed.”
The apprehension that the husband of the complainant (Accused
No.1) who had been working in the U.S.A. might leave the country
cannot be ground to deny the Appellant’s prayer to go back to the
U.S.A. to resume his duties in a Company in which he has been
working for about 9/10 years. The High Court has also not
considered the allegations against the Appellant. There is not
even any prima facie finding with regard to liability, if any, of
the Appellant to the complainant. There are no specific allegations
against the Appellant.
The order of the High Court denying permission to this
Appellant to leave the country is not sustainable in law and is set
aside. The order of the Chief Judicial Magistrate is, accordingly
modified to the extent that this Appellant has been directed not to
leave the country without prior permission of Court. The aforesaid
condition shall stand deleted in respect of the Appellant(Accused
No.4). It is made clear that the husband-Nitin Sharma shall be
bound by all the directions in the order dated 13.09.2021 passed by
the Court of the Chief Judicial Magistrate, Kurukshetra.
The instant application was strongly opposed by the State.
This Court finds no merit in the contentions of the State. Ex
facie, the allegations in the FIR do not disclose any offence under
the provisions of the IPC referred to in the FIR. Ms. Monika Gusain
stated that charge-sheet has been filed. She has not been able to
point out what is the offence so far as this Appellant being the
brother of Nitin Sharma, living in the USA is concerned. The
repetitive allegations in the complaint are directed against the
husband of the complainant, Nitin Sharma (Accused No.1) and his
parents, particularly, his mother being the Accused No.2.
The appeal is, accordingly, allowed.
Pending applications, if any, stand disposed of accordingly.
Petition(s) for Special Leave to Appeal (Crl.) No(s). 9762/2021
(Arising out of impugned final judgment and order dated 24-11-2021
in CRM No. 33701/2021 passed by the High Court of Punjab & Haryana
Date : 12-01-2022 These matters were called on for hearing today.
UPON hearing the counsel the Court made the following
Leave granted.
No one has entered appearance on behalf of the Respondent No.
2 in spite of notice.
Heard the learned counsel for the parties.
The order of the High Court denying permission to this
Appellant to leave the country is not sustainable in law and is set
aside. The order of the Chief Judicial Magistrate is, accordingly
modified to the extent that this Appellant has been directed not to
leave the country without prior permission of Court. The aforesaid
condition shall stand deleted in respect of the Appellant(Accused
No.4). It is made clear that the husband-Nitin Sharma shall be
bound by all the directions in the order dated 13.09.2021 passed by
the Court of the Chief Judicial Magistrate, Kurukshetra.
The instant application was strongly opposed by the State.
This Court finds no merit in the contentions of the State. Ex
facie, the allegations in the FIR do not disclose any offence under
the provisions of the IPC referred to in the FIR. Ms. Monika Gusain
stated that charge-sheet has been filed. She has not been able to
point out what is the offence so far as this Appellant being the
brother of Nitin Sharma, living in the USA is concerned. The
repetitive allegations in the complaint are directed against the
husband of the complainant, Nitin Sharma (Accused No.1) and his
parents, particularly, his mother being the Accused No.2.
The appeal is, accordingly, allowed in terms of the signed
Pending applications, if any, stand disposed of accordingly.
|
Taking custody of jewellery for safety cannot constitute cruelty within the meaning of Section 498A of the Indian Penal Code, the Supreme Court observed.In this case, an FIR was filed by the complainant against her husband and in-laws under Sections 323, 34, 406, 420, 498A and 506 of the Indian Penal Code, 1860. Complainant's brother in law (who was employed in Texas in the United States...
Taking custody of jewellery for safety cannot constitute cruelty within the meaning of Section 498A of the Indian Penal Code, the Supreme Court observed.
In this case, an FIR was filed by the complainant against her husband and in-laws under Sections 323, 34, 406, 420, 498A and 506 of the Indian Penal Code, 1860. Complainant's brother in law (who was employed in Texas in the United States of America) was arrayed as one of the accused. The Apex Court was considering an appeal against the order passed by the High Court of Punjab and Haryana which dismissed an application filed by him for permission to travel back to the United States of America.
""The short question in this appeal is, whether the Appellant can be denied his fundamental right of personal liberty to travel abroad, subject to possession of a valid passport, visa and other requisite travel documents, only because he is arrayed as accused in a complaint filed by his brother's wife against his brother being the husband of the complainant and his parents, particularly mother and that too when the allegations in the complaint do not disclose any criminal offence on the part of the Appellant. The answer to the aforesaid question has to be in the negative", the bench comprising Justices Indira Banerjee and JK Maheshwari noted at the outset.
The court, examining the complaint, noted that there is nothing specific against the Appellant except the vague allegation that the Appellant and his mother, that is the complainant's mother-in-law kept her jewellery.
"The complainant has not given any particulars of the jewellery that had allegedly been taken by her mother-in-law and brother-inlaw. There is not a whisper of whether any jewellery is lying with the Appellant. It is not even alleged that the Appellant forcibly took away or misappropriated the complainant's jewellery or refused to return the same in spite of request. Taking custody of jewellery for safety cannot constitute cruelty within the meaning of Section 498A of the IPC.", the court observed.
The court added that failure to control an adult brother, living independently, or giving advice to the complainant to adjust to avoid vindictive retaliation from his brother (complainant's husband) cannot constitute cruelty on his part within the meaning of Section 498A of the IPC.
Allowing the appeal, the court deleted the condition imposed by the CJM of ' not to leave the country without prior permission of Court'.
"The apprehension that the husband of the complainant (Accused No.1) who had been working in the U.S.A. might leave the country cannot be ground to deny the Appellant's prayer to go back to the U.S.A. to resume his duties in a Company in which he has been working for about 9/10 years. The High Court has also not considered the allegations against the Appellant. There is not even any prima facie finding with regard to liability, if any, of the Appellant to the complainant. There are no specific allegations against the Appellant.", the court added.
Case name: Deepak Sharma vs State of Haryana
Case no.| Date: CrA 83 of 2022 | 12 Jan 2022
Coram: Justices Indira Banerjee and JK Maheshwari
Counsel: Adv Manu Mridul for appellant, AOR Dr. Monika Gusain for respondent
|
These appeals, by special leave, challenge the judgment and order dated 28th
August, 2009 rendered by the Delhi High Court (hereafter ‘the High Court’, for short)
while disposing of 5 (five) writ petitions, viz. WP(C) Nos. 1854 and 1895 to 1898 of
2. The High Court, for the reasons assigned in the impugned judgment, declared
section 9-D of the Central Excise and Salt Act, 1944 (hereafter ‘Excise Act’, for short)
as intra vires while dismissing the writ petitions.
3. In course of hearing before us, Mr. S.K. Bagaria, learned senior counsel
appearing for the appellants, did not even attempt to assail the reasons assigned by
the High Court for up-holding the constitutional validity of section 9-D of the Excise
Act. However, Mr. Bagaria argued that by a judgment and order dated 25th April, 2008,
this Court had remitted the matters back to the High Court for consideration thereof
afresh. In view of the judicial mandate, while deciding the writ petitions afresh on
remand, the High Court could not have limited its decision only to the issue relating to
vires of section 9- D. The writ petitions, as amended, also raised the issue as to how
the essential pre-requisites of section 9-D were breached by the department in the
adjudication orders. The effect of the principles and pre-requisites laid down by the
High Court for invocation of section 9-D vis-à-vis the appellants’ case could not have
been left undecided.
4. According to Mr. Bagaria, the principles laid down by the High Court in the
impugned judgment ought to have been applied to test the legality and correctness of
the impugned action of the department and there being apparent breach of such
principles at the end of the department, the High Court committed an error of law in
not deciding the other issues raised in the writ petitions. In other words, according to
Mr. Bagaria, the High Court could not have stopped at deciding the issue of vires of
section 9-D by reading it down and summarizing the conditions precedent in-built into
it and it was obligatory for the High Court to decide the writ petitions in its totality; and
while so deciding, to declare whether on the parameters of the conditions precedent
in section 9-D, as laid down in the impugned judgment, the petitioners were entitled
to any relief or not.
5. Mr. Bagaria continued by submitting that the details of the earlier proceedings
as well as all earlier orders including the orders passed by the Customs, Excise and
Gold Control Appellate Tribunal (hereafter ‘Tribunal’, for short) and this Court were
placed on record before this Court by way of a ‘status chart’. Such status chart was
reproduced in the judgment and order dated 25th April, 2008; and after noting all these
facts, the matters were remitted to the High Court for deciding the writ petitions afresh.
It is not as if the remand was only for deciding the issue of section 9-D alone without
deciding the remaining issues raised in the writ petitions.
6. The argument of Mr. Bagaria was that if the effect of the principles and pre-
requisites laid down by the High Court visà-vis the appellants’ case were to be left
undecided, the entire proceedings continuing since the last several years would simply
be rendered academic. He has, therefore, endeavoured to persuade us hold that the
High Court committed an error of law requiring correction by us.
7. Mr. Bagaria referred to the decisions of this Court in State of UP vs.
Mohammad Nooh1, Calcutta Discount Company vs. ITO2, Institute of Chartered
Accountants of India vs. L.K. Ratna3 and Andaman Timber Industries vs. CCE4
in support of his arguments.
8. To appreciate the contentions of Mr. Bagaria, we need to take a quick look at
the events preceding the impugned judgment and order.
9. The facts giving rise to the writ petitions reveal that huge demands of about Rs.
94,00,00,000/- were raised by the department on the ground that the appellants and
its job workers had manufactured deceptively similar versions of certain regular
brands of cigarettes showing sale price whereas the same were sold through
marketing chain at the higher price of normal brands and that the difference between
the two prices was received by the appellants as flow-back through various super
wholesale buyers. On 23rd March, 1988 and 29th March, 1988, two show-cause notices
were issued by the department to the petitioners raising demands for alleged short
payment of excise duty. Such notices primarily relied on the statements of 75
(seventy-five) witnesses to establish the recovery of prices higher than the declared
prices and flow back of additional amounts to the appellants. Pursuant to directions of
the Bombay High Court, facility of cross-examination was extended in respect of only
29 (twenty-nine) witnesses and most of them, during crossexamination, denied any
flow back to the appellants. The remaining statements remained untested but were
relied upon by invoking section 9-D of the Excise Act. Grievance of the appellants in
the writ petitions was that the parameters of section 9-D had been completely ignored
by the authorities.
10. Since the show-cause notices were spread over a thousand pages and 600 (six
hundred) of which were related to 63 (sixty-three) statements on which the department
had placed reliance, the appellants on 6th March, 1991 made a request for cross-
examination of 31 (thirty-one) witnesses. However, without attempting to follow the
principles of natural justice, adjudication orders in respect of the showcause notices
had been passed by the adjudicating authority confirming the demands.
11. Despite persistent requests, the facility of crossexamination was denied. Even
before the Collector of Central Excise had passed any order confirming the demand
of duty against them, the appellants had rushed to the High Court to complain about
the fairness of the procedure followed by the Collector, more particularly, the denial of
the opportunity to cross-examine. During the pendency of the proceedings, the
Collector had passed the final orders. By applying for amendment in each one of the
writ petitions, permission was sought to assail the validity of the orders passed by the
Collector. Such applications were disposed of by an order dated 28th October, 1992
with the observation that the order of the Collector being appealable, the petitioners
could pursue their remedy in appeal before the prescribed appellate authority.
However, since there was also a challenge to the constitutional validity of section 9-D
of the Excise Act, the High Court did not dispose of the writ petitions finally but
intended to examine that limited question later. The petitioners had preferred appeals
before the Tribunal for the period relevant to WP(C) 1854/1992 and 1895/1992. The
Tribunal had disposed of the appeals in favour of the department, whereafter appeals
were carried to this Court. The appeals arising out of orders passed by the Tribunal
relevant to WP(C) Nos. 1896/1992 and 1898/1992 were dismissed by an order dated
12th September, 1997 of this Court for failure to make the requisite pre-deposit.
12. The Tribunal on 21st March, 2001 had allowed appeals filed by M/s J&K
Cigarettes and M/s. Kanpur Cigarettes Pvt. Ltd. These orders were carried in appeal
by the department by filing appeals before this Court under section 35L of the Excise
Act, being Civil Appeal Nos. 6398-6403 of 2002.
13. During the pendency of these 2 (two) appeals, the 5 (five) writ petitions came
up for hearing before the High Court on December 6, 2006. The common grievance
of the petitioners was noted by the High Court in paragraph 3, that they had invoked
the writ jurisdiction feeling aggrieved by denial of adequate opportunity to cross-
examine certain witnesses whose statements were recorded by the excise authorities
in the course of investigation. The appellants had argued that the statements of such
witnesses, obtained by the excise authorities in the course of their investigation, could
only be used if they were given an opportunity to crossexamine the witnesses.
14. The High Court in its order dated 6th December, 2006 recorded that 2 (two)
issues emerged for decision, viz.,
“1. Whether this Court would be justified in reading down or interpreting Section 9-D of the
Act as suggested by counsel for the petitioner company when three appeals involving the
validity of the orders passed by the Collector and the CEGAT placing reliance upon Section
9-D of the Act are pending before the Supreme Court?
2. If answer to question No. 1 is in the affirmative, whether Section 9-D suffers from any vice
15. Insofar as the first question is concerned, the High Court, inter alia, held as
“Two of the orders when challenged before the Supreme Court, were upheld by Their
Lordships also while the remaining three appeals are pending adjudication. It is obvious that
stand (sic) disposed of or those pending before the Apex Court, the question of fairness of
the procedure and in particular, the denial of any opportunity to cross-examine the witnesses
was and continues be available to the petitioner. If the discretion vested in the authority in
terms of Section 9D(1)(a) has been improperly exercised, Their Lordships could have granted
relief in the disposed of appeals and can even now grant relief to the petitioner in the appeals
that are pending for disposal. It is also evident that while examining the question of fairness
of the procedure adopted by the adjudicating authority, the interpretation of provisions of
Section 9D(1)(a) would fall for consideration of Their Lordships. What is the true scope of
Section 9 D(1)(a) and what is the true interpretation to be placed upon the same having
regard to the possible 'constitutional infirmity suggested by the petitioner's is a matter which
would legitimately arise for consideration of the Supreme Court. Even assuming that the
dismissal of two appeals filed by the petitioner involving the same question is not indicative
of the Court finding infirmity either (sic, in) the procedure adopted by the adjudicating authority
or in the interpretation placed upon Section 9D(1)(a) by the saidauthority or the Tribunal, the
contrary interpretation which petitioner wishes this Court to place upon Section 9D is a matter
still open to the petitioners before the Supreme Court. That being so, there is no compelling
reason why this court should take upon itself the exercise of interpreting Section 9 D and in
the process reading the same down as suggested by the petitioner. If the interpretation
suggested does eventually appeal to the Supreme Court during the course the hearing
pending before Their Lordships, the opinion of this court on that aspect would be wholly
inconsequential and academic. Such an academic exercise need not be undertaken by this
court nor is any duplication of the process of interpretation (sic) Question number 1 is,
therefore, answered in the negative.”
In the light of the answer to question no. 1, the Court felt that the answer to the second
question becomes unnecessary. Consequently, the writ petitions were dismissed with
16. The judgment and order dated 6th December, 2006 was carried in appeal
before this Court in Civil Appeal Nos.3187-3189/2008. By an order dated 25th April,
2008, this Court disposed of the appeals by the following order:-
“7. The High Court, as noticed hereinbefore, did not decide the question of
constitutionality of the said provision, nor did it determine the objection of the respondents
that no cause of action had arisen therefor.
8. We are, therefore, of the opinion that interest of justice would be subserved if the
impugned judgments are set aside and the matters are remitted back to the High Court for
consideration thereof afresh. We direct accordingly.
9. The appeals are disposed of with the aforementioned observations and directions.
10. However, as these matters are pending for a long time, we would request the High
Court to consider the desirability of disposing of thewrit petitions, filed by the appellants, as
expeditiously as possible, preferably without a period of three months from the date of
communication of this order. All contentions of the parties shall remain open.”
17. It was in terms of the order dated 25th April, 2008 that the High Court once again
considered the challenge of the appellants to the vires of section 9-D of the Excise
Act. Upon hearing learned counsel appearing for the parties, the High Court in the
impugned judgment and order dated 28th August, 2009 recorded the following
“32. Thus, we summarize our conclusions as under:-
(i) We are of the opinion that the provisions of Section 9- D(2) of the Act are not
unconstitutional or ultra vires;
(ii) While invoking Section 9-D of the Act, the concernedauthority is to form an opinion on
the basis of material on record that a particular ground, as stipulated in the said Section,
(iii) Such an opinion has to be supported with reasons;
(iv) Before arriving at this opinion, the authority would give opportunity to the affected party
to make submissions on the available material on the basis of which the authority intends to
arrive at the said opinion; and
(v) it is always open to the affected party to challenge the invocation of provisions of
Section 9-D of the Act in a particular case by filing statutory appeal, which provides for judicial
and dismissed the writ petitions holding that the same had no merit.
18. Bearing in mind these preceding facts and circumstances, we need to consider
the contentions raised by Mr. Bagaria. For the reasons that follow, the contentions do
not commend acceptance.
19. This Court while remitting the writ petitions to the High Court for hearing the
same afresh had taken note of the fact that, inter alia, the appellants’ appeals bearing
Civil Appeal Nos. 5134-34/1997 questioning the order of the Tribunal confirming the
demands against the appellants stood dismissed by an order of this Court dated 12th
20. As noted above, the orders of the Tribunal dated 21st March, 2001 deciding the
appeals in favour of the appellants, were the subject matter of challenge in this Court
at the instance of the department in Civil Appeal Nos.63986403/2002 . Such appeals
were ultimately allowed by order dated 31st July, 2008; while directing a remand, it
was observed by this Court that the Tribunal had not recorded any findings regarding
the flow back.
21. At this juncture, from paragraph 1(xxiv) of the Statement of Case filed on 10th
December, 2012, we also note that pursuant to the remand ordered by this Court as
above, the Tribunal disposed of the statutory appeals confirming the demands against
Kanpur Cigarettes Pvt. Ltd. and J&K Cigarettes. Civil Appeal Nos. 1533-1534 of 2011,
carried before this Court from the orders of the Tribunal, were thereafter dismissed in
view of inability to comply with the conditional order passed by this Court directing
issue of notice subject to deposit of the entire demand amount as confirmed.
22. There was one other appeal filed before this Court but the same too had not
been not pursued by the appellants and the job workers.
23. Therefore, as on date of hearing of these civil appeals, there is no lis pending
in respect of the concerned demands between the parties.
24. It would be appropriate to note the issues involved in the writ petitions. First, the
vires of section 9-D of the Excise Act was under challenge. Secondly, even if section
9-D were intra vires, whether the parameters thereof were completely ignored by the
excise authorities.
25. The writ petitions were instituted before the High Court way back in 1992 before
any adjudication order was passed praying, inter-alia, for cross-examination of the
remaining witnesses whose cross-examination had already been permitted but who
were not produced. Pursuant to the liberty given by the High Court, the appellants filed
an application for amendment mentioning in detail as to how and for what reasons
invocation of section 9-D by the Commissioner was illegal and also challenging the
vires of section 9-D of the Excise Act.
26. Though vehemently argued by Mr. Bagaria, there is no pending proceeding
where the principles and prerequisites laid down by the High Court for invocation of
section 9-D of the Excise Act vis-à-vis the appellants’ case could be attracted for a
decision. When this Court by its order dated 25th April, 2008 remitted the matter to the
High Court for deciding the question of vires of section 9-D, only the civil appeals
carried from the orders of the Tribunal by the department were pending. These
appeals were ultimately allowed by this Court vide its order dated 31st July, 2008 and
the matters remitted to the Tribunal. These two appeals, on remand to the Tribunal,
have since been decided in favour of the department and against the appellants. As
noticed above, the appeals carried to this Court by the appellants from the orders of
the Tribunal confirming the demands against the appellants also stand dismissed. We
are, therefore, left to wonder in which proceedings would the principles and
prerequisites and/or the parameters of the conditions precedent in section 9-D, laid
down by the High Court, could at all be applied.
27. The contentions raised by Mr. Bagaria that the parameters of section 9-D were
completely ignored while the adjudication orders were made could have been
regarded to be of some worth and engaged our attention if only any remedy by way
of an appeal before the departmental authority or by a petition before any court were
open to be pursued by the appellants as on date these civil appeals came up for
consideration before us. What we find from the factual narrative is that although two
proceedings were pending before the Tribunal in view of the order of remand dated
31st July, 2008 when the judgment and order dated 28th August, 2009 under challenge
came to be made, even those proceedings stand closed today after the appellants
had approached this Court and their civil appeals stood dismissed for non-deposit of
the amount demanded. With the final decision on all the appeals arising from the
orders of the Tribunal being rendered against the appellants, there is no pending lis
where the principles and conditions precedent could be applied. The endeavour of the
appellants to have these appeals argued before us is, therefore, of purely academic
interest and would not serve any real purpose.
28. While dismissing the civil appeals, we endorse the views of the High Court
insofar as it spurned the challenge of the appellants to the constitutional validity of
section 9-D of the Excise Act.
29. For unnecessarily protracting the proceedings before this Court, although no lis
survived for resolution, we impose costs of Rs.5,00,000/- on the appellants. This
amount is to be paid to any charitable organization involved in providing help,
assistance and relief to children suffering from cancer. Such costs shall be paid within
a month from date. Within two weeks thereof, proof of payment shall be produced
before the Registrar who shall satisfy himself that the recipient organization is, in fact,
providing care to children suffering from cancer. In default thereof, the amount of costs
shall be recovered as arrears of land revenue.
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The Supreme Court, recently, endorsed the order of the Delhi High Court upholding the validity of Section 9D of the Central Excise and Salt Act, 1944 (Excise Act).
A Bench comprising Justice S. Ravindra Bhat and Justice Dipankar Datta also imposed a cost on the appellant cigarette manufacturing companies for unnecessarily protracting the proceedings before the Apex Court. It issued directions to pay a cost of Rs. 5,00,000 to any charitable organisation involved in providing help, assistance and relief to children suffering from cancer. The payment is required to be made within a period of a month and within two weeks thereof the appellants are to produce proof of payment to the Registrar of the Supreme Court.
The appellants had filed writ petitions before the Delhi High Court, inter alia, challenging the validity of Section 9D of the Excise Act. Eventually, the writ petitions were dismissed. The appellants approached the Apex Court, and it remitted the matter back to the High Court for fresh consideration. The High Court considered the challenge to the vires of Section 9D of the Excise Act and found the provision was not ultra vires.
Section 9D provides for relevancy of the statement made or signed by a person before any Central Excise Officer of a gazetted rank during the course of any inquiry or proceeding.
Senior Advocate, Mr. S.K. Bagaria appearing on behalf of the appellants argued that when the matter was remitted for fresh consideration, the High Court could not have limited its decision only to the issue of vires of the provision. He submitted that the High Court ought to have considered the procedural lapses on the part of the department and how the parameters of Section 9D were breached. He emphasised that the High Court had erred in not deciding the other issues raised in the writ petitions.
The Bench observed that the appeals from the order of the appellate tribunal had been disposed of by the Apex Court long back and at the time of hearing of the present appeals, there are no lis pending in respect of the concerned demands. It noted that there were no pending proceedings where the principles laid down by the High Court for invocation of Section 9A of the Excise Act could be implemented. When the Apex Court had remitted the matter to the Delhi High Court, only the civil appeals from the orders of the appellate Tribunal were pending. They were remitted to the Tribunal, which decided in favour of the department. The appeals before the Apex Court challenging confirmation of the demand by the Tribunal also stood dismissed.
Background
The Excise Department raised a demand of Rs. 94,00,00,000 from the appellants on the ground that they have manufactured deceptively similar versions of certain regular brands of cigarettes showing sale price though they were sold through marketing chain at a much higher price. It appears that the difference between the two prices was received by the appellants as flow-back through super wholesale buyers. In 1988, two show cause notices were issued demanding the short payment of excise duty. The notices were issued on the basis of 75 witnesses to establish recovery of higher prices than the declared price and also the flow back of additional amounts. The appellants approached the High Court. 29 witnesses were allowed to be cross examined. Most of them denied the event of flow back. The remaining statements were relied upon by invoking Section 9D of the Excise Act. The appellant had argued that the parameters of Section 9D were ignored by the department. In the meanwhile the Collector of Central Excise passed the orders.
By amending the petitions, the appellants sought to challenge the validity of the Collector’s orders, which was rejected and the appellants were asked to pursue remedy before appellate authority. However, the High Court agreed to consider the limited issue of validity of Section 9D later. Two appeals filed before the appellate authority was disposed of in favour of the department and against the appellants. The appellants approached the Apex Court. The appeals before the Apex Court were dismissed for failure to make the requisite pre-deposit. The appellate authority allowed two appeals in favour of M/s. J&K Cigarettes and M/s. Kanpur Cigarettes Pvt. Ltd. Subsequently the department approached the Apex Court in appeal. While the petitions were pending, the appellants had approached the Delhi High Court by filing the above-mentioned writ petitions.
Case details
GTC Industries Ltd (Now Known As Golden Tobacco Limited) Thr. Manager Legal And Anr. v. Collector of Central Excise And Ors. | (SC) 107 | Civil Appeal Nos. 8583-84 of 2010 | 9th Feb, 2023| Justice S. Ravindra Bhat and Justice Dipankar Datta
For Appellant(s) Mr. Sanjay Bagaria, Sr. Adv. Mrs. Nisha Bagchi, Adv. Mrs. B. Sunita Rao, AOR Mrs. Sujata S., Adv. Mr. Gunmaya Mann, Adv.
For Respondent(s) Mr. Arijit Prasad, Adv. Mr. C. Bhatia, Adv. Mr. I. Prasad, Adv. Mr. Mukesh Kumar Maroria, AOR
Central Excise and Salt Act 1944 - Supreme Court endorses Delhi High Court judgment upholding Section 9D - Pulls up cigarette company for protracting proceedings - Asks it to pay Rs 5 lakh cost to any charitable organisation involved in providing help, assistance and relief to children suffering from cancer
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1. The challenge in the present appeals is to an order dated 29.9.2021 passed by the
High Court of Judicature for Rajasthan at Jodhpur, whereby the writ petition filed by
respondent No. 11was allowed directing the appellant and respondent Nos. 2 to 8 not to
interfere with the action of the writ petitioner in removal of the structure forming part of
Khasra No. 6731 at Village Pur, Bhilwara, Rajasthan.
2. The writ petitioner was granted lease of an area admeasuring 1556.7817 hectares
vide lease deed dated 8.12.2010 for the mining of Gold, Silver, Lead, Zinc, Copper, Iron,
Cobalt, Nickle and associated minerals near Village Dhedwas, Tehsil and District
3. It was pointed out that the Tehsildar, Bhilwara had submitted a report on 3.12.2010
after conducting an inquiry along with Revenue Record Super Impose Site Plan in
respect of Land Numbers, admeasuring 142-15 bigha of village Samodi; Land Numbers
admeasuring 33-09 bigha of village Dariba; Land Numbers admeasuring 40-03 bigha of
village Pansal; Land Numbers admeasuring 127-02 bigha of village Malola; Land
Numbers admeasuring 24114 bigha of village Dhulkheda; Land Numbers admeasuring
74802 bighas of village Pur after obtaining report from the concerned Patwaris. Such
report shows that Land Number 897 of village Samodi is a Devsthan i.e. place of worship.
It was communicated that if the mining work is carried out without causing harm to
Devsthan and not using the harmful explosives, then there is no objection in carrying out
mining work in that survey number. In the detailed report, certain survey numbers in
different villages such as Samodi, Dariba, Pansal, Malola are mentioned wherein there
was a proposal not to grant permission and also certain other survey numbers wherein
permission was proposed to be given. In Survey Nos. 543 (6 Bigha 11 Biswa), 498 Min.
(8 Bigha 6 Biswa) and 42 (3 Biswa) of Malola Village, there was a proposal not to grant
permission in view of barren land near religious place. Similarly, in Dhulkheda Village,
1 For short, the ‘writ petitioner’
the proposal to undertake mining was not granted in Survey Nos. 219 and 220 on account
of religious place and in Survey No. 365 for the reason of graveyard. However, in respect
of the area in question in Village Pur, the mining was proposed to be carried out in Land
Survey No. 235. The permission was proposed to be granted in respect of Survey No.
6731 measuring 158 Bigha 12 Biswa. It was thus proposed that permission is not to be
granted in total of 213 Bigha 11 Biswa, for the mining work whereas in 325 Bigha 19
Biswa, permission was to be granted. It is thereafter that the lease was executed on
8.12.2010 by the State in favor of the writ petitioner.
4. The Survey Commissioner, Waqf of the State of Rajasthan, conducted survey of
the waqf properties in the year 1963. In the said survey, a structure was found named as
‘Tiranga Ki Qalandari Masjid’ in the survey report. On the basis of said Survey report, a
notification was published on 23.9.1965 in which ‘Qalandari Masjid of Tiranga’ located at
village Pur was notified as wakf. Later, on the basis of the said Gazette Notification, the
‘Tiranga Ki Qalandari Masjid’ was entered in the waqf register as admeasuring
12x9=108. Another survey was conducted in village Pur, Bhilwara in accordance with the
Waqf Act, 1995 2 . The ‘Qalandari Masjid Tiranga’ was found in existence in Survey
Number 931 as per the report dated 15.1.2002. Part III (b) of the said survey report gives
dimension of the mosque as 25x25x25x25, bounded on all sides by Hills.
5. It may be stated that Survey No. 931 is not included in the list of survey numbers
of which lease was granted. There is no reference to Survey No. 931 as to whether lease
is to be granted or not to be granted for the same.
6. It appears that the Anjuman Committee addressed a letter to the Chairman of the
appellant-Board on 17.4.2012 to the effect that on Tiranga Hill in Village Pur, there is a
wall and Chabutrah (platform) on so-called Qalandari Masjid where in olden times
laborers used to offer prayers. The elders had informed that they have not seen anybody
praying Namaaz nor there is access to water and stairs to reach the platform. The office
of the appellant responded on 18.4.2012 that the area consisting of the platform over the
Tiranga Hill should be saved from mining. The said letters, when translated, read thus:-
“It is submitted that there is a wall and delipidated platforms/chabutrah at the so-called Qalandari
Masjid situated at Tiranga Hills where earlier some laborers used to offer prayers. By enquiring from
the elderly people, it came to our knowledge that no one was seen offering prayer/namaz at such
place. Further, neither there is any water there, nor there are stairs.
The miners informed that due to mining, the wall and chabutrah, which are already in a dilapidated
condition, could fall.
When we talked about this to the miners present there, then they respectfully agreed to reach to a
settlement. Hence, kindly oblige us by issuing directions/guidance to settle the issue.”
“Subject- Relating to taking steps for the chabutara/platform as per the Shariyat.
In reference to your letter dated 17 April 2012.
In relation to the abovesaid letter, it is stated that there is a chabutara/dilapidated platform at the
Tiranga Hill situated at Village Pur which is sought to be protected from mining activities and there
have been talks of arriving at a settlement.
Hence, considering the present circumstances in this context as well as keeping in mind the benefit
of Wakf, take the requisite decisions at your end and also inform the Wakf Board about the same.
Original is attached herewith.”
7. On 23.4.2012, the Chairman of the appellant-Board communicated to the Collector
and to the Superintendent of Police that the communication dated 18.4.2012 is being
misinterpreted as the purpose was to safeguard the interest of the waqf but the members
of the Anjuman Committee have acted for personal gain and, therefore, action should be
taken. In response to the said letter, the District Magistrate communicated that an FIR
has been registered and a sum of Rs.65 lakhs has been recovered. It was in this
background, respondent No. 1 herein filed a writ petition before the High Court.
8. The High Court constituted an Expert Committee to examine the following two
“(i) As to whether the structure existing within the mining lease area of the Petitioner was a mosque
or structure which can be removed for the purpose of carrying out lease hold activities within the
said area.
(ii) The Committee shall also ascertain as to whether any illegal mining activity within the mining
lease area of the petitioner and if so whether the same was carried out by the petitioner-company
or any other entity.”
9. It has come on record that such Committee was chaired by Shri R.K. Sinha,
Controller General (Retd.) of India Bureau of Mines along with Shri O.P. Kabra, nominee
of the Secretary Mines, Department of Mines and Geology, Rajasthan and Smt. Nandini
Bhattacharya Sahu, Regional Director (West), Archaeological Survey of India. Shri O.P.
Kabra, nominee of the Secretary Mines was later substituted by Shri A.K. Nandwana,
Superintending Mining Engineer, Bhilwara. The Committee submitted its report on
10.1.2021, reporting that the dilapidated structure existing at Khasra No. 6731 is neither
a mosque nor any structure with archaeological or historical relevance. Shri A.K.
Nandwana, one of the members had partially dissented with the report by a handwritten
note stating that steps should be taken to stop the illegal mining.
10. Learned counsel for the appellant argued that such Expert Committee constituted
had no representative of the appellant and the appellant was not associated with the
report so submitted, therefore, the report cannot be made basis of rejecting the structure
on the Hill as not a religious structure. It was contended that whether the structure is a
waqf or not has to be decided by the Waqf Tribunal in terms of Section 83 of the Act and
not in a writ petition under Article 226 of the Constitution of India.
11. Dr. Manish Singhvi, learned senior advocate for the State supplemented the
arguments raised to contend that in terms of the lease dated 8.12.2010, the decision as
to whether the place is a public ground over which the mining activity can be carried out
has to be determined by the State Government. The State Government has determined
that mining lease is not permissible over Survey No. 6731. The relevant conditions read
“No building etc. upon certain places:-
1. No building or thing shall be erected, set up or placed and no surface operations shall be carried
on in or upon any public pleasure ground, burning or burial ground or place held sacred by any class
of persons or any house or villages site, public road or other place which the State Government may
determine as public ground nor in such a manner as to injure or prejudicially effect any buildings
works property or rights of other persons and no land will be used for surface operations which is
already occupied by persons other than the State Government for works or purposes not included
in this lease. The lessee/lessees shall not also interfere with any right of way well or talk.”
12. On the other hand, Mr. Ranjit Kumar and Mr. C.S. Vaidyanathan, learned senior
counsels appearing for the writ petitioner contended that as per the detailed report
submitted by the Tehsildar, on the basis of which permission to lease was granted,
Survey No. 931 over which the said structure is found in the survey report was not part
of the lease. Survey No. 6731 measuring 158 Bigha 12 Biswa was the one over which
the writ petitioner was granted permission to do the mining work but there is no document
or report to show that any part of Survey No. 6731 was ever declared to be a religious
structure within the meaning of waqf as defined under the Act. The learned counsel for
the parties furnished the photocopies of the original documents on the basis of which
reliance was placed by the appellant that the Tiranga Qalandari Masjid in Village Pur is
a mosque and, therefore, no mining activity can be undertaken.
13. The first document so produced is undated but the subject shows that it is in
respect of Auqaf to be registered in Ajmer and Sunel Regions of the State till 5.1.1959
and in the rest of Rajasthan by 1.4.1955 . A reading of the said report shows that it does
not have any survey number, though the value of waqf was assessed at Rs.900/- and
the purpose of use was for Namaaz. Thereafter, a notification was published on
23.9.1965 declaring Qalandari Masjid of Tiranga as the waqf property as the nature and
object are pious, religious and for offering prayers. The appellant has produced an extract
from its register pointing out that 12 x 9 measuring 108 is Tiranga Ki Qalandari Masjid.
Another document produced by the appellant is the survey report dated 15.1.2002 to the
effect that the Qalandari Masjid on Tiranga Hill is situated in Survey No. 931.
14. With this factual background, Mr. Ranjit Kumar and Mr. C.S. Vaidyanathan have
argued that the claim of the appellant is wholly untenable as at no point of time, any
revenue record shows any religious structure on the land comprising in Survey No. 6731.
In fact, the religious structure is said to be in existence over Survey No. 931. Still further,
the record of the appellant shows that the area of the religious structure is 108 feet
whereas in the second survey report, the area is shown to be 525 feet. Hence, there is a
discrepancy about the area over which the religious structure is in existence.
15. It has also been contended that a perusal of the photographs shows that the
structure is totally dilapidated without any roof and in fact a wall and some broken derelict
platform exist at the spot. The area is surrounded by vegetation and there is also nothing
to suggest that the structure was ever used for offering prayers (Namaaz) as neither the
area is accessible, nor there is any facility of Wazoo3, which is stated to be an essential
step before offering prayer. The experts from the Archaeological Department have
3 The practice of ritual purification i.e., to wash face, hands, arms and feet before daily prayer.
reported that the structure has no historical or archaeological importance. It is further
contended that the Tehsildar, before the possession was delivered, had given an
extensive report of each of the structure existing on the land proposed to be given. The
lands for graveyard and other religious structures have been excluded from the lease.
Therefore, the act of identification carried out years before raising of the dispute done by
the revenue officials in the course of their official duties carry presumption of correctness.
It shows that the structure had no religious value.
16. We have heard learned counsel for the parties at length and find no merit in the
appeals. The Qalandari Masjid on Tiranga Hill as per the document produced by the
appellant is located on Survey No. 931. There is no assertion that the Survey No. 931 is
changed as Survey No. 6731. In fact, the old number of Survey No. 6731 is 9646 or may
be some other number but positively not the survey number 931. Therefore, the claim of
the appellant is on a different portion of land and not the land leased to the writ petitioner.
There is discrepancy in the total area of the Masjid in the two documents, i.e., the extract
produced by the appellant from the register and the second survey report. The letter
dated 17.4.2012 by the Anjuman Committee is based upon hearsay and is not of any
binding value.
17. Still further, there is no evidence at any given point of time that the structure was
being used as a mosque. There is no allegation or proof of either of dedication or user or
grant which can be termed as a waqf within the meaning of the Act. Section 3 (r) of the
“[(r) “waqf” means the permanent dedication by any person, of any movable or immovable property
for any purpose recognised by the Muslim law as pious, religious or charitable and includes—
(i) a waqf by user but such waqf shall not cease to be a waqf by reason on ly of the user
having ceased irrespective of the period of such cesser;
(ii) a Shamlat Patti, Shamlat Deh, Jumla Malkkan or by any other name entered in a revenue
18. The report of the experts is relevant only to the extent that the structure has no
archaeological or historical importance. In the absence of any proof of dedication or user,
a dilapidated wall or a platform cannot be conferred a status of a religious place for the
purpose of offering prayers/Namaaz.
19. The stand of the State Government that they have identified it to be a religious
structure comprising in Khasra No. 6731 has not been produced on record. There is
nothing on record that such decision if any, was arrived at after associating the writ
petitioner. It is always open to the State as lessor to exercise the powers conferred in it
by the lease deed after complying the principles of natural justice and on good and
sufficient grounds.
20. In view of the above, we do not find any merit in the present appeals. Consequently,
the appeals are dismissed.
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The Supreme Court, on Friday, held that in absence of proof of 'dedication' or 'user' or 'grant' , which would qualify a dilapidated wall or a platform as 'waqf' in terms of Section 3(r) of the Waqf Act, 1995, the said structure cannot be recognised as a religious place for offering Namaaz.A Bench comprising Justices Hemant Gupta and V. Ramasubramanian dismissed an appeal assailing the order...
The Supreme Court, on Friday, held that in absence of proof of 'dedication' or 'user' or 'grant' , which would qualify a dilapidated wall or a platform as 'waqf' in terms of Section 3(r) of the Waqf Act, 1995, the said structure cannot be recognised as a religious place for offering Namaaz.
A Bench comprising Justices Hemant Gupta and V. Ramasubramanian dismissed an appeal assailing the order of the Rajasthan High Court which allowed Jindal Saw Limited to remove a structure from the plot allotted to it for mining, which the Waqf Board, Rajasthan claimed was a religious place.
Factual Background
By a lease deed dated 08.12.2010, Jindal Saw Limited was granted lease near Dhedwas Village, Bhilwara, Rajasthan for mining.
In 1963, the Survey Commissioner, Waqf of the State of Rajasthan had conducted a survey and notified a structure, 'Qalandari Masjid of Tiranga' ("Mosque") as waqf. As per entry in the waqf register the Mosque structure was measured to be 108 feet. Another survey was conducted in accordance with Waqf Act, 1995 and a report was submitted on 15.01.2002, where the Mosque structure, admeasuring 525 feet was found to exist in Survey Number 931.
On 17.04.2012, the Anjuman Committee wrote to the Waqf Board, Rajasthan ("Board") informing it that the wall and Chabutrah (platform) of the Mosque was situated in Tiranga Hill in Pur Village. It was also communicated that many moons ago labourers used to offer prayers there. However, as informed by the elderly member of the village, no one has been seen offering Namaaz in the Mosque which had become inaccessible. It also mentioned in the letter that the miners had agreed to settle the issue. On 18.04.2012, the Waqf Board responded stating that the remains of the Masjid should be saved from mining. Suspecting that the Ajuman Committee was acting in its own interest rather than that of the waqf, the Board informed the Collector and the Superintendent of Police. An FIR was registered and money was recovered from the Committee. Thereafter, Jindal Saw Limited approached the High Court, which constituted an Expert Committee to, inter alia, determine whether the structure located in the plot allotted for mining was a mosque or not.
The Committee submitted its report on 10.01.2021. The majority opinion reflected that the structure was neither mosque nor had any archaeological or historical relevance.
Contentions raised by the appellant
The Counsel for the Waqf Board averred that the Expert Committee had no representative of the Board. As the determination had to be made by the Waqf Tribunal in terms of Section 83 of the Waqf Act, 1995 it could not have been decided under Article 226 of the Constitution of India.
Senior Advocate, Dr. Manish Singhvi, appearing on behalf of the State of Rajasthan submitted that whether the plot allotted for mining was a public ground over which mining could be carried out had to be decided by the State Government. He argued that the concerned plot i.e. Survey No 6731 was identified as a public ground by the Government and mining therein was impermissible.
Contentions raised by the respondents
Senior Advocates, Mr. Ranjit Kumar and Mr. C.S. Vaidyanathan appearing on behalf of Jindal Saw Limited contended that the plot allotted for mining was Survey No. 6731 and not Survey No. 931 on which the Masjid was situated. It was asserted that there was no document on record to indicate that there existed a religious structure in Survey No. 6731. With respect to the area of the structure the Counsels highlighted a discrepancy. In one Survey it is 108 feet and in another 525 feet. From photographs it was shown that the structure was dilapidated and the area was inaccessible. The Counsels submitted there there is nothing to suggest that Namaaz was offered and there was no facility of Wazoo (the practice of ritual purification).
Analysis of the Supreme Court
The Court noted that there was no document to suggest that Survey No. 931, on which the Masjid was situated was the same as Survey No. 6731, the land allotted for mining. Therefore, it was of the opinion that the land on which the Board claimed the Masjid was situated was not the one allotted to Jindal Saw Limited. Moreover, it noticed the discrepancy in the area of the structure. The Court observed that the letter of the Anjuman Committee based on hearsay had no binding value. Stating that there was no evidence that the structure was used as a mosque and no proof of dedication or user or grant which would qualify it as a 'waqf' under Section 3(r) of the Waqf Act. It noted -
"In the absence of any proof of dedication or user, a dilapidated wall or a platform cannot be conferred a status of a religious place for the purpose of offering prayers/Namaaz."
The Court also observed that the State Government's claim that the Survey No. 6731 was public ground was unsubstantiated.
Case Name: Waqf Board. Rajasthan v. Jindal Saw Limited And Ors.
Case No. and Date: Civil Appeal No. 2788 of 2022 | 29 April 2022
Corum: Justices Hemant Gupta and V. Ramasubramanian
Headnotes
Waqf Act, 1995 ; Section 3(r), - definition of waqf - there ought to be proof of dedication or user or grant to qualify as waqf - in the absence of any proof of dedication or user, a dilapidated wall or a platform cannot be conferred a status of a religious place for the purpose of offering prayers/Namaaz. [Paragraph 17 and 18]
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Counsel for Petitioner :- Gaurav Mehrotra,Abhineet Jaiswal
Counsel for Respondent :- C.S.C.
1. Heard learned counsel for petitioner Sri Gaurav Mehrotra &
Sri Abhinit Jaiswal and learned Standing Counsel for the State.
2. Despite the best efforts of all still, how a working woman can
be harassed even in this era is reflected in the facts of the
present case. Petitioner, a doctor by qualification, after getting
selected by U.P. Public Service Commission, in furtherance of
appointment letter dated 01.09.2010, joined as a lecturer at the
Lala Lajpat Rai Memorial Medical College, Meerut & was
subsequently promoted to the post of Associate Professor. On
19.09.2018, the petitioner was transferred from Meerut Medical
College to Saharanpur Medical College. Though the petitioner
has challenged the aforesaid transfer order, it could not succeed.
Meanwhile, the State Government made an arrangement vide
Office Memorandum dated 19.07.2019 whereby the petitioner
along with some other Doctors were directed to render their
services at Saharanpur Medical College along with the previous
place of posting of petitioner i.e., Meerut Medical College.
3. The petitioner by means of several applications expressed her
difficulty in rendering the services & sought child-care leave on
account of medical issue of her daughter who has a severe case
of Bronchial Asthma and suffers from frequent Asthmatic
attacks which requires tonsillectory plus immune therapy as
well as constant care & attention.
4. The petitioner has further contended that neither her leave
was sanctioned nor the salary was paid to her. The petitioner
further submitted that she preferred a representation before
respondent No.1 on 01.01.2020 & 08.01.2020 apprising therein
that five applications had been preferred by her seeking child-
care leave & medical leave, however, none of them were
considered. It was also apprised that the petitioner has not even
been paid her salary for the period July 2019 to September 2019
& January 2020 to 24.02.2020. The petitioner by means of
representation dated 01.01.2020 & 08.01.2020 requested
respondent No.1 to consider her bonafide & genuine claim else
she will be left with no other choice than to resign from the
5. It had been further stated that when no action on the
aforesaid representation was taken by respondent No.1, the
petitioner ultimately tendered her resignation on 24.02.2020.
Shockingly, neither the resignation tendered by the petitioner
was accepted nor rejected by respondent No.1 till 23.05.2020
i.e., till 3 months notice period for accepting her resignation
6. It was after a lapse of more than 7 months from the date
when the petitioner tendered her resignation that the impugned
order dated 25.09.2020 was issued by respondent No.1 whereby
an enquiry on account of being absent from duty was initiated
against the petitioner. Further by means of another impugned
order dated 26.09.2020 issued by respondent No.1, the
resignation tendered by the petitioner was rejected on the
ground of public interest.
7. On 02.12.2020, when the present matter was taken up while
staying the disciplinary proceedings initiated against the
petitioner vide order dated 25.09.2020, this Court passed the
"Heard Shri Gaurav Mehrotra, learned counsel for petitioner
and Shri P. K. Singh, leamed Additional Chief Standing
Counsel for State.
Perused Annexure No. 8 which is, inter alia, a leave application
by petitioner which was not acceded to nor was it rejected by
communicating any such order. She tendered her resignation on
24.02.2020 as on account of the reasons mentioned in the said
letter and other reasons pertaining to the health of her child
etc. she was unable to leave Meerut permanently and work at
Saharanpur where she had been working since 2017 as alleged.
The notice period for resignation expired on 24.05.2020 during
which no decision was communicated to her. It is said that it is
only in July, 2020 that the Director General, Medical
Education and Training, U.P Lucknow communicated the offer
of resignation by petitioner dated 24.02.2020 to Principal
Secretary who instead of taking a decision on the same initiated
disciplinary proceedings against petitioner on 25.09.2020 for
absence w.e.f. 21.03.2020 inspite of her letter of resignation not
having been accepted in terms of Rule 4 and 5 of the Uttar
It is true that as per Rules and resignation becomes effective
only on being accepted and not otherwise and Rule 5(iii)
provides a ground for rejection of such offer of resignation if an
inquiry is contemplated or pending against applicant and in
ordinary course the petitioner if she was unable to work for the
reasons stated by her, she should have been taken leave instead
of abstaining from work, but considering the over all facts and
circumstances of the case, this is hardly a matter where action
as impugned herein should have been taken. After initiation of
disciplinary proceedings on 25.09.2020 her request for
resignation has been rejected on the next date i.e. 26.09.2020
Let opposite parties justify the impugned action in the facts of
the present case and as to why such a trivial matter should
culminate in such action. Why should the matter not be given a
quietus by accepting leave of petitioner without pay w.e.f.
21.03.2020 and allowing her to resign.
Let an affidavit be filed by the opposite parties positively within
a period of 10 days.
She is permitted to apply for leave as per rule w.e.f. 21.03.2020
albeit without pay. List/ put up on 15.12.2020 as fresh.
Till the next date of listing the disciplinary proceedings against
the petitioner shall remain stayed.
Let a copy of this order be given to learned counsel for parties
within 48 hours on payment of usual charges."
8. By means of the aforesaid order dated 02.12.2020 passed by
this Court, the opposite parties were given an opportunity to
justify their impugned action. Alternatively, this Court had also
indicated to the opposite parties to re-visit their orders by
expressing that such a trivial matter should be given quietus by
accepting leave of the petitioner without pay w.e.f. 21.03.2020
and allowing her to resign. However, in the Counter Affidavit,
there is no mention of the impugned orders having been
revisited by the opposite parties, as required by this Court.
9. The facts of the case clearly indicates that petitioner, a
mother was facing difficulty in handling both, a child in need of
care as well as her job with the State Government. In the given
circumstances, initially, she applied for leave as may be granted
to her under the service rules and finding that the same is not
possible she even resigned on 24.02.2020. The resignation was
kept pending for as good as seven months and the impugned
orders dated 25.09.2020 & 26.09.2020 were passed. Any
working woman, more particularly, a mother is required to be
accommodated as far as possible. Presuming the worst, it was
not possible for the department to grant any further leave to the
petitioner, including leave without pay. suffice would have been
in the given circumstances to accept the resignation of the
petitioner. This Court fails to understand what purpose is
achieved by the respondents by keeping the petitioner in service
from 24.02.2020 i.e. from the date of resignation onwards.
During the said period, they could not appoint any other person
in place of the petitioner, therefore, the work of the college
continued to suffer and the public at large in no manner
benefited. The entire issue could have been best served by
accepting her resignation. The petitioner had a right to resign on
24.02.2020 and her resignation had to be accepted as till that
date neither any departmental inquiry was initiated against her
nor there was any other reason available to the respondents for
not accepting the resignation. Even her immediate superior
administrative authority, i.e., the principal of the college, had
recommended accepting her resignation from the service.
10. Learned Counsel for the petitioner has placed reliance upon
the judgment & order dated 08.03.2022 passed in Writ-A No.
4813 of 2021, Dr. Sonal Sachadev Aurora Vs. State of U.P. &
others.
11. Learned Standing Counsel also could not place any reason
for not accepting the resignation of the petitioner.
12. This Court finds that the case of the petitioner is squarely
covered by the judgment of Dr. Sonal Sachdeva (Supra). The
petitioner in the given facts and circumstances is treated
arbitrarily by the respondents. The respondents were bound to
accept the resignation of the petitioner and, there was no
necessity to conduct any inquiry against the petitioner.
13. In view of the aforesaid, the impugned orders dated
25.09.2020 & 26.09.2020 are hereby quashed. The respondents
shall treat the petitioner as having resigned from her post w.e.f.
24.02.2020 and shall grant her benefit which she is entitled to
by treating her to be in service till 24.02.2020. Such an exercise
shall be conducted expeditiously, say in not more than two
months from the date a copy of this order is placed before
respondent no.2, Director, Medical Education & Training, 6th
14. With the aforesaid, the writ petition is allowed.
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"Any working woman, more particularly, a mother is required to be accommodated as far as possible" : Allahabad High CourtThe Allahabad High Court last week quashed an order of the State Medical Department initiating an inquiry against an associate professor working in a state medical college after keeping her resignation file pending for 7 months.
Taking into account the plight of the professor of medicine, who resigned as she was facing difficulty in handling her child while continuing her job with the State Government, the bench of Justice Vivek Chaudhary stressed that any working woman, more particularly, a mother is required to be accommodated as far as possible.
“Despite the best efforts of all still, how a working woman can be harassed even in this era is reflected in the facts of the present case,” the Court remarked in its order as it rapped the department for causing troubles for the petitioner/woman doctor.
Consequently, the Court ordered the respondents to accept her resignation from the day she resigned (February 24, 2020) and grant her the benefit, which she is entitled to by treating her to be in service till 24.02.2020. The entire exercise has to be completed within two months.
The case in brief
The Court was essentially dealing with the case of Dr. Priyanka Garg, a doctor by qualification, who joined the state government job in September 2010 as a lecturer at a Medical college in Meerut & was subsequently promoted to the post of Associate Professor.
In July 2019, the state government directed her to render her services at Saharanpur Medical College along with the previous place of posting of petitioner i.e., Meerut Medical College.
Pursuant to this direction, she sent as many as 5 representations to the department expressing her inability in rendering the services and she even sought child-care leave on account of a medical issue of her daughter, who suffers from frequent Asthmatic attacks.
However, neither her leave was sanctioned nor the salary was paid to her (for the period July 2019 to September 2019 & January 2020 to 24.02.2020.).
Consequently, since no action was taken on her representations, she ultimately tendered her resignation on 24.02.2020, however, the same was not accepted.
In fact, after a lapse of more than 7 months, an order was issued by respondent No.1 (Addl. Chief Secy./Prin.Secy.Medical) on September 25, 2022, whereby an enquiry was initiated against her for being absent from duty.
Further, by means of another impugned order dated September 26, 2020, the resignation tendered by the petitioner was rejected on the ground of public interest.
Hence, challenging the departmental inquiry, she moved to the High Court.
Court’s observations and order
Having perused the records of the case, the Court wondered as to why didn’t the department accept her resignation and as to why did it keep the same pending for 7 months.
The Court also observed that in case it was not possible for the department to grant any further leave to the petitioner, including leave without pay, it should have accepted the resignation of the petitioner.
“This Court fails to understand what purpose is achieved by the respondents by keeping the petitioner in service from 24.02.2020 i.e. from the date of resignation onwards. During the said period, they could not appoint any other person in place of the petitioner, therefore, the work of the college continued to suffer and the public at large in no manner benefited. The entire issue could have been best served by accepting her resignation,” the Court added as it did not find it justified that the department-initiated inquiry against her.
Consequently, setting aside the order initiating an inquiry, the Court ordered the department to accept her resignation wef 24.02.2020. In this regard, the Court also noted that the case was squarely covered by High Court 2022 ruling in the case of Dr. Sonal Sachadev Aurora v. State Of U.P.Thru.Addl.Chief Prin.Secy.Medical Educat. And Ors (AB) 134.
Appearances
Counsel for Petitioner: Gaurav Mehrotra, Abhineet Jaiswal
Counsel for Respondent: C.S.C.
Case Title – Dr.Priyanka Garg vs. State Of U.P.Thru.Addl.Chief Secy./Prin.Secy.Medical And Ors. [WRIT - A No. - 23384 of 2020]
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Till the final disposal of the main petition the respondents may
kindly be restrained not to interfere or disturb or to user and
possession of the Petitioner in the land.”
4. During pendency of the writ petition, a notification dated 06.05.2016 under
the 1903 Act was published in respect of the land comprised in the area
lying within the distance of 1000 yards from the crest of the outer perimeter
wall of Military Station at Sukhlapur in the District of Jabalpur in the State
of Madhya Pradesh, directing that this land be kept free from construction
of buildings and other obstructions from the date of publication of the
notification. The notification also imposes the restrictions specified in
clause (b) of Section 7 of the 1903 Act.
5. In view of the aforesaid notification, Writ Petition (C) No. 21481 of 2013
was disposed of, vide judgment and order dated 30.08.2017, making
reference to Sections 4 and 5 of the 1903 Act, with the direction that it was
obligatory on the part of the appellants to proceed further and pay
Civil Appeal arising out of SLP(C) No. 8579 of 2021 Page 2 of 8
damages on account of restrictions imposed regarding use of the land.
“(i) That the respondents shall take appropriate steps to
determine the damages and payment of damages to the
petitioners on account of imposition of restrictions in regard to
use of lands after publication of notification under Section 3 of
the Act of 1903 within a period of six months from the date of
receipt of copy of this order.
(ii) If the respondents fail to pay damages and will not
determine the same within the stipulated period, the
petitioners are at liberty to take appropriate action and
they are at liberty to file appropriate proceedings in
accordance with law. The petitioners can also challenge
the notification issued under Section 3 of the Act of 1903
quoted above in the order. No order as to costs.”
6. Alleging non-compliance, the respondents had filed Contempt Case No.
1014 of 2018, which was disposed of by order dated 06.04.2018 directing
the appellants to comply with the order dated 30.08.2017 passed in Writ
Petition (C) No. 21481 of 2013 within a further period of six months from
the date of receipt of certified copy of that order. Liberty was also given to
the respondents to file another contempt petition, if required, with the
observation that costs would be imposed and recovered from the erring
officer.
7. The respondents, again alleging non-compliance, filed the second
Contempt Case No. 2959 of 2018 on or about 23.10.2018, a copy of which
is not available on record. The appellants, in response to the contempt
petition filed affidavits stating that vide letter dated 24.08.2018 they had
Civil Appeal arising out of SLP(C) No. 8579 of 2021 Page 3 of 9
requested the Collector, Jabalpur to intimate the amount of compensation
to be paid to the owners for the restrictions imposed. This was followed by
the Ministry’s letter dated 13.09.2018 to the Chief Secretary, Government
of Madhya Pradesh to issue directions to the Collector to take necessary
action for computation of the compensation and payment. The Collector,
Jabalpur, however, incorrectly invoked provisions of the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 and asked the local military authority to deposit
more than Rs.10.55 crores. It is obvious that the determination was
erroneous.
8. The appellants thereupon were compelled to approach the revenue
authorities once again stating that the compensation should be determined
in terms of Sections 23 and 24 of the 1903 Act and not under the Right to
Fair Compensation and Transparency in Land Acquisition, Rehabilitation
and Resettlement Act, 2013. Thereafter, several letters were exchanged
between the appellants and the local authorities. On 03.08.2019, the
Collector, Jabalpur, informed the appellants that total cost of the land on
the said date was valued at Rs.16,39,35,000/- and that the compensation
amount payable was Rs.6,06,92,170/-. The appellants once again
protested vide letter dated 09.08.2019 to the Collector stating that the
compensation should not be computed on the actual cost of the land, but
determined in terms of provisions of Sections 23 and 24 of the 1903 Act.
Civil Appeal arising out of SLP(C) No. 8579 of 2021 Page 4 of 8
Finding merit in the said objection, the Collector undertook fresh exercise
and determined the compensation vide his award dated 27.09.2019 fixing it
at Rs.1,96,97,200/-.
9. The second contempt petition was dismissed by the Single Judge
recording that an award dated 27.09.2019 had been passed and the
proposal had been sent to the Ministry of Defence for disbursement of the
awarded amount. Liberty was granted to the respondents to approach the
appropriate forum in case grievance would exist, observing that the
question of limitation would not be a bar.
10. On or about 06.03.2020, the respondents filed the third Contempt Case
No. 708 of 2020 in which the impugned order dated 24.06.2021 has been
passed, inter alia observing that the appellants had already deposited
Rs.1,96,97,200/- before the Collector and this amount may be
released/disbursed to the respondents within fifteen days.
11. The appellants are not satisfied and are disputing the compensation of
Rs.1,96,97,200/- determined by the Collector. They have, accordingly, filed
a reference before the District Judge under Section 18 of the 1903 Act.
They have approached the Collector with an application that the amount of
Rs.1,96,97,200/- should not be released/disbursed to the respondents. In
addition, the appellants filed an application before the High Court in the
Civil Appeal arising out of SLP(C) No. 8579 of 2021 Page 5 of 9
contempt proceedings seeking reference of the award under Section 18 of
the 1903 Act. They had also filed an affidavit requesting the High Court to
drop the contempt proceedings and call upon the respondents to
participate in the proceedings under Section 18 of the 1903 Act.
12. To add to the aforesaid confusion, the appellants, it appears, have, post
the impugned order, passed an order dated 02.07.2021 under Section 3 of
the 1903 Act, determining the compensation @ 5% of the land, i.e.
Rs.30,45,200/-. Addition of 15% in terms of Section 23(2) of the 1903 Act,
i.e. Rs.4,56,700/- has been made. Total amount of compensation as
determined is Rs.35,01,980/-. This order observes that the respondents
would be entitled to interest on compensation @ 6% per annum in terms of
Section 34 of the 1903 Act.
13. We have referred to the aforesaid proceedings to highlight that the
contempt proceedings have, in the present case, proceeded as if all issues
and questions that required determination and adjudication. The orders
passed in the second and third contempt petitions have, therefore, gone
beyond the scope and ambit of the order dated 30.08.2017 passed in Writ
Petition (C) No. 21481 of 2013. The impugned order and the directions
given therein, therefore, cannot be sustained and are liable to be set aside.
Ordered accordingly.
Civil Appeal arising out of SLP(C) No. 8579 of 2021 Page 6 of 8
14. However, for doing complete justice and for ensuring that there is no
further confusion, we are inclined to pass the following directions:
(a) The reference petition pending before the 29th Additional District
Judge, Jabalpur in Case No. MJC/6337/2020 CNR:
MP200L0195912020 filed by the appellants against the determination
of compensation amount by the Collector, Jabalpur, be decided
expeditiously and in accordance with law. Before proceeding with the
said reference on merits, the court may examine the preliminary
objection of the respondents that reference at the instance of the
appellants being beneficiary, is not maintainable.
(b) The respondents would be also at liberty to file a reference before the
District Judge for enhancement of the compensation.
(c) The reference filed by appellants be decided uninfluenced by the fact
that the appellants had failed to pass any order under Section 3 of
the 1903 Act or that the order dated 02.07.2021 has been passed
post the impugned order.
(d) It will be open to the appellants to apply for stay against
disbursement of the compensation amount lying deposited with the
Collector, Jabalpur. Equally, it will be open to the respondents to
approach the Collector for release of the amount to them. Such
applications be decided on its own merits and in accordance with law.
Civil Appeal arising out of SLP(C) No. 8579 of 2021 Page 7 of 9
All contentions and further remedies available to both sides are left
open.
(e) We clarify that we have not commented on any of the above aspects
or on the question of computation of compensation as the said issue
has to be determined in the reference.
15. The civil appeal is allowed in the above terms. Pending application(s), if
any, also stand disposed of.
Civil Appeal arising out of SLP(C) No. 8579 of 2021 Page 8 of 8
Petition(s) for Special Leave to Appeal (C) No(s). 8579/2021
(Arising out of impugned final judgment and order dated 24-06-2021
in CONC No. 708/2020 passed by the High Court Of M.P Principal Seat
( IA No. 74846/2021 - EXEMPTION FROM FILING AFFIDAVIT and IA No.
74842/2021 - EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT and
IA No. 74845/2021 - EXEMPTION FROM FILING O.T. and IA No.
Date : 08-07-2021 This matter was called on for hearing today.
UPON hearing the counsel the Court made the following
Leave granted.
The Civil Appeal is allowed in terms of the signed order.
Pending applications, if any, stand disposed of.
Civil Appeal arising out of SLP(C) No. 8579 of 2021 Page 9 of 9
Civil Appeal arising out of SLP(C) No. 8579 of 2021 Page 10 of 8
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The Supreme Court set aside the Madhya Pradesh High Court order that directed the disbursal of the amount of about Rs. 1.96 crore deposited by Defence Ministry with Collector as compensation to land owners.Land owners of about 51.57 acres in Jabalpur had filed the writ petition before the Madhya Pradesh High court alleging that they were being obstructed by the Defence Ministry from carrying...
The Supreme Court set aside the Madhya Pradesh High Court order that directed the disbursal of the amount of about Rs. 1.96 crore deposited by Defence Ministry with Collector as compensation to land owners.
Land owners of about 51.57 acres in Jabalpur had filed the writ petition before the Madhya Pradesh High court alleging that they were being obstructed by the Defence Ministry from carrying out any kind of activities on their land. This writ petition was disposed of with a direction to authorities to take appropriate steps to determine the damages and payment of damages to the landowners on account of imposition of restrictions.
The Collector, Jabalpur, initially, invoked provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and asked the local military authority to deposit more than Rs.10.55 crores. Faced with this, the ministry approached the to approached the revenue authorities stating that the compensation should be determined in terms of Sections 23 and 24 of the Works of Defence Act, 1903 and not under the 2013 Act. The Collector undertook fresh exercise and determined the compensation vide his award dated 27.09.2019 fixing it at Rs.1,96,97,200.
In a contempt petition filed, the High court noted that the ministry had already deposited Rs.1,96,97,200/- before the Collector and this amount may be released/disbursed to the respondents within fifteen days. Against this order, the Apex Court was approached.
In appeal, the court noted that the contempt proceedings have, in the present case, proceeded as if all issues and questions that required determination and adjudication. The orders passed in the second and third contempt petitions have, therefore, gone beyond the scope and ambit of the order passed in writ petition, the bench comprising Justices AM Khanwilkar and Sanjiv Khanna said. Invoking Article 142 powers, the bench, while allowing the appeal, directed as follows:
(a) The reference petition pending before the 29th Additional District Judge, Jabalpur in Case No. MJC/6337/2020 CNR: MP200L0195912020 filed by the appellants against the determination of compensation amount by the Collector, Jabalpur, be decided expeditiously and in accordance with law. Before proceeding with the said reference on merits, the court may examine the preliminary objection of the respondents that reference at the instance of the appellants being beneficiary, is not maintainable. (b) The respondents would be also at liberty to file a reference before the District Judge for enhancement of the compensation. (c) The reference filed by appellants be decided uninfluenced by the fact that the appellants had failed to pass any order under Section 3 of the 1903 Act or that the order dated 02.07.2021 has been passed post the impugned order. (d) It will be open to the appellants to apply for stay against disbursement of the compensation amount lying deposited with the Collector, Jabalpur. Equally, it will be open to the respondents to approach the Collector for release of the amount to them. Such applications be decided on its own merits and in accordance with law.
Case: AJAY KUMAR vs. KEWAL KUMAR JAGGICounsel: Sr. Adv R. Balasubramium, AOR Sachin Sharma, for appellants, Adv V.K. Shukla, Adv. Sugam Mishra, for respondents.
Read/Order
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tion Nos.
1128 and 1204 of 1988, 1012 (Under Article 32 of the Constitution of India).
Mrs. section Ramachandran for the Petitioners.
V.C. Mahajan, Ms. A. Subhashini and Ms. Kusum Chaudhary for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
Each of these two writ petitions under Article 32 of the Constitution is by the widow of the respective pensioners.
Since family pension under the Rules has not been given to them, they have asked for a mandamus to the respondent Union of India to grant such pension in terms of the pension scheme applicable to the category to which the husbands of the respective petitioners belonged.
Petitioner Smt.
Bhagwanti is the widow of an ex Subedar of the Indian Army.
Her husband after serving for 18 years retired on 3.8.1947 and was given pension.
In 1955, his wife died and in 1965 he was married to the petitioner.
The Subedar died in September, 1985 in an accident.
Petitioner who has two minor children applied for family pension and the same has not been granted.
The petitioner in the connected writ petition is the wife of a retired Railway employee.
Her husband took volun tary retirement at the age of 44 in November, 1979.
Peti tioner got married to her husband in 1981 and has a daughter born in 1984 out of the said wedlock.
Petitioner 's husband died in 1986.
The petitioner applied for family pension but by a letter dated 3rd of August, 1988, her application was rejected by saying: 'It has not been found possible to include wife of a Government servant who had married after retirement in the definition of 'family ' for grant of family pension '.
Counter affidavits have been filed in both the writ petitions.
In the first case, in the return made by Captain N.K. Vishwakarma from the Office of Records AMC, Lucknow in paragraph A, it has been stated that pension has been re fused as petitioner 's marriage was after retirement of the Subedar.
In the connected matter, the Senior Personnel Manager of the South Central Railway has placed reliance on the definition of 'family ' occurring in Rule 54(14)(b) of the Central Civil Services (Pension) Rules, 1972.
As far as relevant, the definition reads thus: 1013 "(b). 'Family ' in relation to a Government servant means (i) wife in the case of a male Gov ernment servant, Or husband in the case of a female Government servant, provided the mar riage took place before retirement of the Government servant. . . . . . . . . . (ii) son who has not attained the age of twenty one years and unmarried daughter who has not attained the age of thirty years, including such son and daughter adopted legal ly before retirement but shall not include son or daughter born after retirement.
" The common stand of the Union of India in the two cases, therefore, is that family pension would not be admissible to spouses who get married after the retirement of the Govern ment servant, nor to children born after such retirement.
The only question for consideration in these two writ petitions therefore, has two facets: (i) whether the spouse man or woman, as the case may be married after the retirement of the concerned Government servant can be kept out of the definition so as to deprive him from the benefit of the family pension, and (ii) whether off springs born after retirement are entitled to benefits of such pension.
In D.S. Nakara & Ors.
vs Union of India, ; , a Constitution Bench of this Court at p. 185 of the Reports observed: " . . pension is not only compensation for loyal service rendered in the past, but pension also has a broader significance, in that it is a measure of socio economic justice which inheres economic security in the fall of life when physical and mental prowess is ebbing corresponding to aging process and, therefore, one is required to fall back on savings.
One such saving in kind is when you gave your best in the hey day of life to your employer, in days of invalidity, economic security by way of periodical payment is assured.
The term has been judicially defined as a stated allowance or stipend made in consideration of past service or a surrender of rights or emoluments to one retired from 1014 service Thus the pension payable to be a Government employee is earned by rendering long and efficient service and, therefore, can be said to be a deferred portion of the com pensation or for service rendered.
In one sentence one can say that the most practical raison detre for pension,, is the inability to provide for oneself due to old age .
In Deoki Nandan Prasad vs State of Bihar & Ors., , it was held by this Court: "The payment of pension does not depend upon the discretion of the Government but is gov erned by the relevant rules and anyone enti tled to the pension under the rules can claim it as a matter of right." In Smt.
Poonamal vs Union of India & Ors., ; , it was pointed out: "Where the Government servant rendered serv ice, to compensate which a family pension scheme is devised, the widow and the dependent minors would equally be entitled to family pension as a matter of right.
In fact we look upon pension not merely as a statutory right but as the fulfilment of a constitutional promise in as much as it partakes the charac ter of public assistance in cases of unemploy ment, old age, disablement or similar other cases of undeserved want.
Relevant rules merely make effective the constitutional mandate.
That is how pension has been looked upon in D.S. Nakara 's judgment." Admittedly, the definition of 'family ' as it stands after amendment excludes that scope of the Government serv ant who has got married to such Government servant after his/her retirement and the children born after retirement also stand excluded.
Petitioners have challenged the stand of the Union of India and the definition in the Pension Rules as arbitrary and discriminatory It has been contended that if family pension is payable to the widow or the hus band as the case may be, of the Government servant, the category which the definition keeps out, namely, those who have married after retirement and offsprings of regular marriage born after retirement, is discriminatory.
Pension is payable, as pointed out in several judgments of this 1015 Court, on the consideration of past service rendered by the Government servant.
Payability of the family pension is basically on the self same consideration.
Since pension is linked with past service and the avowed purpose of the Pension Rules is to provide sustenance in old age, distinc tion between marriage during service and marriage after retirement appears to be indeed arbitrary.
There are in stances where a Government servant contracts his first marriage after retirement.
In these two cases before us, retirement had been at an early age.
In the Subedar 's case, he had retired after putting in 18 years of service and the Railway employee had retired prematurely at the age of 44.
Premature or early retirement has indeed no relevance for deciding the point at issue.
It is not the case of the Union of India and, perhaps there would have been no force in such contention if raised, that family pension is admissible on account of the fact that the spouse contributed to the efficiency of the Government servant during his service career.
In most cases, marriage after retirement is done to provide protection, secure companionship and to secure support in old age.
The consideration upon which pension proper is admissible or the benefit of the family pension has been extended do not justify the distinction envisaged in the definition of 'family ' by keeping the postretiral spouse out of it.
Government Servants Conduct Rules prohibit marriage during the life time of a spouse.
Section 494 of the Indian Penal Code makes second marriage void and makes it a crimi nal offence.
Thereafter, both before retirement and even after retirement there is no scope for a person to have a second wife or a husband.
as the case may be, during the life time of an existing spouse.
Reliance has been placed on the recommendations of the Third Pay Commission on the basis of which the amendment in the Pension Rules is said to have been made.
Apart from referring to the recommendations, no attempt has been made at the hearing by counsel for the Union of India to derive support from the recommendations.
We really see no justifi cation as to why post retirement marriages should have been kept out of the purview of the definition.
In clause (ii) of the definition son or daughter born after retirement even out of wedlock prior to retirement have been excluded from the definition.
No plausible expla nation has been placed for our consideration for this exclu sion.
The purpose for which family pension is provided, as indicated in Smt.
Poonamal 's case, is frustrated if children born after retirement are excluded from the benefit of the 1016 family pension.
Prospect of children being born at such advanced age (keeping the age of normal superannuation in view) is minimal but for the few that may be born after the retirement, family pension would be most necessary as in the absence thereof,.
in the event of death of the Government servant such minor children would go without support.
The social purpose which was noticed in some pension cases by this Court would not justify the stand taken by the Union of India in the counter affidavit.
It is not the case of the Union Government that as a matter of public policy to con tain the growth of population, the definition has been so modified.
Even if such a contention had been advanced it would not have stood logical scrutiny on account of the position that the Government servant may not have any child prior to retirement and in view of the accepted public policy that a couple could have children upto two, the only child born after superannuation should not be denied family pension.
Considered from any angle, we are of the view that the two limitations incorporated in the definition of 'family ' suffer from the vice of arbitrariness and discrimination and cannot be supported by nexus or reasonable classification.
The Words 'provided the marriage took place before retire ment of the Government servant ' in clause (i) and 'but shall not include son or daughter born after retirement ' in clause (ii) are thus ultra vires Article 14 of the Constitution and cannot be sustained.
The writ petitions are allowed.
The respondent Union of India shall have a direction to extend to each of the peti tioners in the two writ petitions family pension as admissi ble under the respective schemes from the date the husband of each of petitioners died.
Since these writ petitions were instituted on the basis of letters received by the Court and treated as public interest litigation and were supported by the Supreme Court Legal Aid Committee through their counsel, there shall be no order as to costs.
Y. Lal Petitions allowed.
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These two Writ Petitions have been filed by the widows of the pensioners viz. Smt.
Bhagwati and Smt.
Sharda Swamy, as they have been refused family pension after the demise of their husbands.
Bhagwanti is the widow of an Ex Subedar of the Indian Army who retired after serving for 18 years on 3.8.1947.
He was given pension.
In 1955 his wife died and in 1965 he married the petitioner.
The Subedar died in Septem ber 1985 in an accident.
The Petitioner Smt.
Bhagwanti who has two minor children applied for family pension but the same was not granted to her.
The other Petitioner Smt.
Sharda Swamy is the wife of the retired railway employee.
Her husband took voluntary retirement at the age of 44 years in November 1979.
The Petitioner married her deceased husband in 1981 and has a daughter born to her in 1984.
Petitioner 's husband died in 1986.
The petitioner applied for a family pension but by a letter dated 3.8.1988, she was informed that her application has been rejected.
It was stated therein that it has not been found possible to include wife of a Government Servant who had married after retirement in the definition of ' ' family" for grant of family pension.
In the counter affidavits filed on behalf of the Union, the stand taken in the first case is that the pension has been refused as the marriage was after retirement and in the other case the Union relied on the definition of "family" occurring in Rule 54(14)(b) of the Central Civil Services (Pension) Rules 1972, which speaks of marriage before re tirement.
1011 The common stand taken thus by the Union is that family pension would not be admissible to spouses who get married after the retirement of the Government servant nor to chil dren born after retirement.
Allowing the Writ Petitions this Court HELD: Pension is payable, as pointed out in several Judgments of this Court, on the consideration of past serv ice rendered by the Government servant.
Payability of the family pension is basically on the self same consideration.
Since pension is linked with past service and the avowed purpose of the Pension Rules is to provide sustenance in old age, distinction between marriage during service and mar riage after retirement appears to be indeed arbitrary.
[101411 1015B] Admittedly, the definition of "family" as it stands after amendment excludes the spouse of the Government serv ant who has got married to such Government servant after his/her retirement and the children born after retirement also stand excluded.
[1014F] In most cases, marriage after retirement is done to provide protection, secure companionship and to secure support in old age.
[1015C] The consideration upon which pension proper is admissi ble or the benefit of the family pension has been extended do not justify the distinction envisaged in the definition of "family" by keeping the postretiral spouse out of it.
[1015D] The two limitations incorporated in the definition of "family" suffer from the vice of arbitrariness and discrimi nation and cannot be supported by nexus or reasonable clas sification.
[1016D] The words "provided the marriage took place before retirement of the Government servant" in clause (i) and "but shall not include son or daughter born after retirement" in clause (ii) are thus ultra vires Article 14 of the Constitu tion and cannot be sustained.
[1016E] D.S. Nakara & Ors.
vs Union of India, ; ; Deoki Nanaan Prasad vs State of Bihar & Ors., [1971] Suppl.
SCR 634; Smt.
Poonamal vs Union of India & Ors., ; ; referred to.
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1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 11.09.2017 passed by the High Court of Judicature at
Hyderabad for the State of Telangana and the State of Andhra Pradesh
passed in CCCA No.99 of 2017 by which the High Court has allowed the
said appeal and has quashed and set aside the judgment and decree
passed by the trial court and has remanded the matter to the trial court,
the original plaintiff has preferred the present appeal.
2. That the appellant herein – original plaintiff filed a suit for recovery
of Rs.47,90,088/-, along with interest of 18% from the respondent Nos. 1
and 2 herein original defendants. The said suit came to be decreed by
the trial court. The judgment and decree passed by the trial court came
to be challenged by the original defendants – respondent Nos. 1 and 2
before the High Court by way of CCCA No. 99 of 2017. In the said
appeal, respondent Nos. 1 and 2 herein – original defendants moved a
miscellaneous application seeking impleadment of A.P. Transco and
MAYTAS Infra Pvt. Ltd. as party respondents to the first appeal on the
ground that the subject work, which was given to the defendant No.1 by
the appellant, was originally given by A.P. Transco to the appellant. The
High Court by the impugned order without assigning any reasons as to
why the proposed respondents have to be impleaded in the first appeal,
allowed the said application and directed to implead A.P. Transco as
party to the appeal as well as to the original suit. Not only that, while
allowing the said application for impleadment, thereafter, without further
entering into the merits and/or expressing anything on merits and solely
on the ground that as the application for impleadment was allowed, the
High Court set aside the judgment and decree passed by the trial court
and remanded the matter to the trial court with a direction to the trial
court to decide the suit afresh after affording an opportunity to the
impleaded party to lead evidence in the suit.
3. Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court, the original plaintiff has preferred
the present appeal.
4. We have heard the learned Advocates appearing for the respective
parties at length.
5. We have gone through the impugned order passed by the High
Court. By the impugned judgment and order, the High Court has set
aside the judgment and decree passed by the trial court, which was in
favour of the appellant herein – original plaintiff, solely on the ground that
the application for impleadment filed by the respondent Nos. 1 and 2 –
original defendants –appellants before the High Court to implead A.P.
Transco has been allowed and, therefore, the judgment and decree is
set aside. This is not the manner in which the High Court was required
to deal with the first appeal arising out of the judgment and decree
passed by the trial court. Nothing has been observed and/or decided on
merits. Even no reasoning has been given why the A.P. Transco was
required to be impleaded as a party to the appeal. The High Court has
not only directed to implead the A.P. Transco as party to the appeal but
has also directed to implead the A.P. Transco in the original suit also. It
is required to be noted that as such the suit was filed by the appellant –
original plaintiff and as per the settled proposition of law, the plaintiff is
the dominus litis. No issue was raised before the trial court on non-
joinder of parties. Therefore, as such whether in the appeal preferred by
the original defendants against the judgment and decree passed by the
trial court, such an application would be maintainable or not, that itself is
a question, which was required to be first considered and decided by the
6. Even otherwise, assuming that the application to implead the A.P.
Transco as a party to the appeal on an application filed by the
respondent Nos.1 and 2– original defendants was maintainable and was
to be allowed is not discussed. There cannot be an automatic allowing
of the appeal and quashing and setting aside the judgment and decree
passed by the trial court without any further entering into the merits of
the appeal and/or expressing anything on merits in the appeal on an
impleadment of a party in an appeal. We strongly disapprove the
manner in which the High Court has disposed of the appeal. How to
deal with and decide a first appeal under Section 96 and Order XLI Rule
31 of the CPC has been dealt with by this Court in a catena of decisions.
As observed and held by this Court in the case of K. Karuppuraj Vs. M.
Ganesan, Civil Appeal Nos.6014-6015 of 2021 decided on 04.10.2021
“without framing points for determination and considering both facts and
law; without proper discussion and assigning the reasons, the First
Appellate Court cannot dispose of the first appeal under Section 96 CPC
and that too without raising the points for determination as provided
7. In view of the above discussion and for the reasons stated above,
the present appeal is allowed. We set aside the order passed by the
High Court in CCCAMP No.246 of 2017 impleading the A.P. Transco as
party to the appeal as well as to the original suit. Consequently, we also
set aside the impugned judgment and order passed by the High Court
quashing and setting aside the judgment and decree passed by the trial
court. We remand the matter to the High Court to decide and dispose of
the CCCAMP No. 246 of 2017 and the first appeal in accordance with
law and on its own merits. While deciding the CCCAMP No.246 of 2017
filed by the original appellants – respondent Nos. 1 and 2 herein –
original defendants to implead the A.P. Transco in the appeal as well as
the original suit. The High Court shall consider whether such an
application in the appeal preferred by the original defendants would be
maintainable or not and if so under which provision of Code of Civil
Procedure it would be maintainable.
Present Appeal is Allowed accordingly with exemplary cost, which
is quantified at Rs.25,000/- to be deposited by respondent Nos. 1 and 2
herein with the State Legal Services Authority of the concerned High
Court within a period of four weeks from today.
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The Supreme Court has disapproved the approach taken by a High Court in setting aside a decree in a suit and remanding the same for fresh trial after directing the plaintiff to implead a party as an additional defendant in the suit.The Top Court reminded that the plaintiff is the "dominis litis"(master of the suit), who is entitled to decide who all should be added as parties in the...
The Supreme Court has disapproved the approach taken by a High Court in setting aside a decree in a suit and remanding the same for fresh trial after directing the plaintiff to implead a party as an additional defendant in the suit.
The Top Court reminded that the plaintiff is the "dominis litis"(master of the suit), who is entitled to decide who all should be added as parties in the case.
The issue arose out of a money suit filed by IL & FS Engineering and Constructions Company against M/s Bhargavarma Constructions and others. The suit was decreed by the trial court. The defendants challenged the decree in appeal before the High Court. The defendants contended that another party A.P. Transco and MAYTAS Infra Pvt. Ltd had executed the subject contract work and hence it was liable to pay the sums. With this argument, the defendant filed an application to implead AP Transco as a party in the appeal.
The High Court set aside the judgment and decree passed by the trial court and remanded the matter to the trial court with a direction to the trial court to decide the suit afresh after affording an opportunity to the impleaded party to lead evidence in the suit.
Challenging this, IL&FS approached the Supreme Court by way of appeal. The Supreme Court noted that the High Court had not given any reasons to conclude why AP Transco was necessary to be impleaded. No issue regarding non-joinder of parties was raised before the trial court. The defendant raised the plea for the first time in appeal before the High Court.
A bench comprising Justice MR Shah and Justice BV Nagarathna noted
"This is not the manner in which the High Court was required to deal with the first appeal arising out of the judgment and decree passed by the trial court. Nothing has been observed and/or decided on merits. Even no reasoning has been given why the A.P. Transco was required to be impleaded as a party to the appeal. The High Court has not only directed to implead the A.P. Transco as party to the appeal but has also directed to implead the A.P. Transco in the original suit also. It is required to be noted that as such the suit was filed by the appellant –original plaintiff and as per the settled proposition of law, the plaintiff is the dominus litis. No issue was raised before the trial court on non-joinder of parties. Therefore, as such whether in the appeal preferred by the original defendants against the judgment and decree passed by the trial court, such an application would be maintainable or not, that itself is a question, which was required to be first considered and decided by the High Court"
"There cannot be an automatic allowing of the appeal and quashing and setting aside the judgment and decree passed by the trial court without any further entering into the merits of the appeal and/or expressing anything on merits in the appeal on an impleadment of a party in an appeal. We strongly disapprove the manner in which the High Court has disposed of the appeal. How to deal with and decide a first appeal under Section 96 and Order XLI Rule 31 of the CPC has been dealt with by this Court in a catena of decisions".
Accordingly, the Supreme Court set aside the High Court judgment and remanded the appeal back to it for fresh consideration on merits.
Case Title : IL & FS Engineering and Constructions Company vs M/s Bhargavarma Constructions and others
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1. This appeal, by special leave, challenges a judgment and order of the Calcutta High
Court, which affirmed a judgment and decree by the trial court2 allowing a petition for
grant of letters of administration under Section 278 of the Indian Succession Act, 1925
(hereinafter, “Act”). The aggrieved defendant is the appellant before this court.
2. The facts in brief are that one Gosaidas Samanta (hereinafter, “testator”) had three
sons – Upendra, Anukul and Mahadev. He died, survived by his three sons and widow
Bhagbati Das, and left behind a will dated 16.11.1929. The testator bequeathed his estate
among three heirs – his sons Anukul and Mahadev, and his grandson Shibu, the son of
Upendra (who was not granted any share). On 21.02.1945, a partition deed was drawn
between these three co-sharers. This arrangement was apparently accepted by Upendra,
who executed a disclaimer document, in respect of one part of the properties, sold by
Shibu, out of his share.
3. In 1952, alleging that he was in occupation of a part of the properties owned by the
testator, and that he had purchased them from Upendra, the present appellant filed a suit
for partition and possession. The suit was dismissed on the finding that the present
appellant had no title.3 That judgment was however reversed by the appellate court which
passed a preliminary decree for partition. 4 Upon a further appeal by the present
respondent (the son of Mahadev), the High Court noticed that although the will had been
F.A. No. 664/1972, dated 02.02.2007
relied upon, it was neither probated nor were letters of administration sought in respect of
it.5 The High Court cast doubts about the possession of the respondent herein.
4. Having regard to the High Court’s finding, especially the absence of a probate or
letters of administration, the respondents herein approached the competent court for
letters of administration6. At the time of trial, none of the attesting witnesses was alive.
The trial court therefore, relied upon the depositions of two of the sons of the testator as
well as the deposition of one Surendra Nath Bhowmick who deposed to having seen the
testator duly sign the will.
5. The administration proceedings were contested by the present appellant, i.e., the
purchaser of the properties from Upendra. He contended that the proceedings were not
maintainable as relief was sought after an inordinately long period of time. The trial court
relied upon the depositions of witnesses as well as the documents produced which
included the registered deed of partition, dated 21.02.1945, which expressly mentioned
the will in question. The trial court also relied upon a document, i.e., deed executed by
Upendra, which also contained a reference to the will.
6. Having regard to the materials, the court recorded a finding that the respondent was
entitled to letters of administration. An appeal against that judgment was rejected. 7
Therefore, the present appeal.
7. It was argued on behalf of the appellant by Mr Ranjan Mukherjee, Ld. Advocate,
that the courts below could not have relied upon the will and granted the letters of
administration in the absence of any evidence to substantiate that the will was executed
properly. It was urged that there were suspicious circumstances surrounding the execution
of the will which cast a doubt about its genuineness given that the propounder had raised
various contentions, including one for adverse possession in a previous suit for partition.
It was also argued that the courts below could not have accepted the will on the basis of
Section 90 of the Evidence Act,1872 and relied upon the partition deed of 1945 nor upon
the ‘Nabadi’ said to have been executed by Upendra. It was urged that the inordinate
delay in approaching the court ought to have defeated the claim for letters of
8. On the other hand, Mr Bikash Kar Gupta, Ld. Advocate, contended on behalf of the
respondents that the present case is one where the courts have rendered concurrent
findings of fact, which this court should not interfere with. It was urged that the will was
duly proved and that the question of delay in approaching the court for letters of
administration did not arise.
9. The respondent had relied upon the record, and the findings rendered by the trial
court, as well as the High Court, and contended that both courts consistently recorded
satisfaction that the ingredients necessary to prove the will had been satisfied, and the
courts did not rest their findings only on the basis of a presumption that the document was
Appeal from Appellate Decree No. 950/1959, dated 27.11.1967.
By filing O.S. No. 79/1969.
10. From the factual discussion, it is clear that the testator had extensive properties.
The appellant is a purchaser of part of the properties. Those properties were sold by
Upendra, the testator’s son. In the will, Upendra had not been bequeathed any portion of
the properties by the testator; instead Shibu, his son, was an heir and one of the legatees.
The respondent herein filed a suit claiming one-third share; the appellant claimed to be in
possession. Though in those proceedings, both courts held that he was not in possession,
yet, the plaintiff’s (the present respondent) title was held not proved as he had not sought
probate or administration of the testator’s properties. Therefore, the respondent, in
subsequent proceedings, claimed letters of administration. Both courts have held the will
to be genuine and upheld the claim for administration by the respondent.
11. The main argument of the appellant is that the application for letters of
administration was made after a considerable delay, and that the courts below should not
have relied on Section 90 of the Evidence Act, 1872, which reads as follows:
“Section 90 - Presumption as to documents thirty years old
Where any document, purporting or proved to be thirty years old, is produced from any custody
which the Court in the particular case considers proper, the Court may presume that the signature
and every other part of such document, which purports to be in the handwriting of any particular
person, is in that person's handwriting, and, in the case of a document executed or attested, that
it was duly executed and attested by the persons by whom it purports to be executed and attested.
Explanation-Documents are said to be in proper custody if they are in the place in which, and
under the care of the person with whom, they would naturally be; but no custody is improper if it
is proved to have had a legitimate origin, or the circumstances of the particular case are such as
to render such an origin probable.
12. This court, in M.B. Ramesh (D) by L.Rs. v K.M. Veeraje Urs (D) by L.Rs. & Ors.,8
while dealing with a similar argument regarding applicability of Section 90 in the case of
proof of will, held as follows:
“At the same time we cannot accept the submission on behalf of the Respondents as well that
merely because the will was more than 30 years old, a presumption under Section 90 of the Indian
Evidence Act, 1872 ('Evidence Act' for short) ought to be drawn that the document has been duly
executed and attested by the persons by whom it purports to have been executed and attested.
As held by this Court in Bharpur Singh v. Shamsher Singh reported in 2009 (3) SCC 687, a
presumption regarding documents 30 years old does not apply to a will. A will has to be proved
in terms of Section 63(c) of the Succession Act read with Section 68 of the Evidence Act.
That takes us to the crucial issue involved in the present case, viz. with respect to the validity and
proving of the concerned will. A Will, has to be executed in the manner required by Section 63 of
the Succession Act. Section 68 of the Evidence Act requires the will to be proved by examining
at least one attesting witness. Section 71 of the Evidence Act is another connected section "which
is permissive and an enabling section permitting a party to lead other evidence in certain
circumstances", as observed by this Court in paragraph 11 of Janki Narayan Bhoir v. Narayan
Namdeo Kadam reported in 2003 (2) SCC 91 and in a way reduces the rigour of the mandatory
provision of Section 68. As held in that judgment Section 71 is meant to lend assistance and come
to the rescue of a party who had done his best, but would otherwise be let down if other means
of proving due execution by other evidence are not permitted.”
Civil Appeal No. 1071/2006, decided on 03.05.2013.
13. In view of the above decision, wills cannot be proved only on the basis of their age
– the presumption under Section 90 as to the regularity of documents more than 30 years
of age is inapplicable when it comes to proof of wills, which have to be proved in terms of
Sections 63(c) of the Succession Act, 1925, and Section 68 of the Evidence Act, 1872.
14. There are often situations when wills which otherwise may have satisfied the
requirements of being attested, as provided by law, cannot be proved in terms of the said
two provisions, for the reason that the attesting witnesses are not available, or if one of
the witnesses denies having attested the will. Sections 69 and 71 of the Evidence Act,
1872 then come to the aid of the propounder. Section 69 reads as follows:
“Section 69 - Proof where no attesting witness found
If no such attesting witness can be found, or if the document purports to have been executed in
the United Kingdom, it must be proved that the attestation of one attesting witness at least is in
his handwriting, and that the signature of the person executing the documents is in the handwriting
of that person.”
“Section 71 - Proof when attesting witness denies the execution
If the attesting witness denies or does not recollect the execution of the document, its execution
may be proved by other evidence”
15. In Babu Singh & Ors. v. Ram Sahai alias Ram Singh9, the Court held as follows
“It would apply, inter alia, in a case where the attesting witness is either dead or out of the
jurisdiction of the court or kept out of the way by the adverse party or cannot be traced despite
diligent search. Only in that event, the will may be proved in the manner indicated in Section 69
i.e. by examining witnesses who were able to prove the handwriting of the testator or executant.
The burden of proof then may be shifted to others.
18. Whereas, however, a will ordinarily must be proved keeping in view the provisions of Section
63 of the Succession Act and Section 68 of the Act, in the event the ingredients thereof, as noticed
hereinbefore, are brought on record, strict proof of execution and attestation stands relaxed.
However, signature and handwriting, as contemplated in Section 69, must be proved.”
Section 69 was also considered in K. Laxmanan v. Thekkayil Padmini & Ors10:
“Since both the attesting witnesses have not been examined, in terms of Section 69 of the Act it
was incumbent upon the Appellant to prove that the attestation of at least one attesting witness
is in his handwriting and that the signature of the person executing the document is in the
handwriting of that person. DW 3, who was an identifying witness also in Ext. B-2, specifically
stated that he had not signed as an identifying witness in respect of Ext. B-2 and also that he did
not know about the signature in Ext. B-2. Besides, considering the nature of the document which
was a deed of gift and even assuming that no pleading is filed specifically denying the execution
of the document by the executant and, therefore, there was no mandatory requirement and
obligation to get an attesting witness examined but still the fact remains that the Plaintiff never
admitted the execution of the gift deed and, therefore, the same was required to be proved like
any other document.”
16. V. Kalyanaswamy (D) by L.Rs. & Ors. v L. Bakthavatsalam (D) by L.Rs. &
Ors., too, considered the effect of Sections 68 and 69, and observed as follows:
Civil Appeal No. 3124/2008, dated 30.04.2008.
“70. Reverting back to Section 69 of the Evidence Act, we are of the view that the requirement
therein would be if the signature of the person executing the document is proved to be in his
handwriting, then attestation of one attesting witness is to be proved to be in his handwriting. In
other words, in a case covered Under Section 69 of the Evidence Act, the requirement pertinent
to Section 68 of the Evidence Act that the attestation by both the witnesses is to be proved by
examining at least one attesting witness, is dispensed with. It may be that the proof given by the
attesting witness, within the meaning of Section 69 of the Evidence Act, may contain evidence
relating to the attestation by the other attesting witness but that is not the same thing as stating it
to be the legal requirement under the Section to be that attestation by both the witnesses is to be
proved in a case covered by Section 69 of the Evidence Act. In short, in a case covered Under
Section 69 of the Evidence Act, what is to be proved as far as the attesting witness is concerned,
is, that the attestation of one of the attesting witness is in his handwriting. The language of the
Section is clear and unambiguous. Section 68 of the Evidence Act, as interpreted by this Court,
contemplates attestation of both attesting witnesses to be proved. But that is not the requirement
in Section 69 of the Evidence Act.”
17. It is therefore clear that in the event where attesting witnesses may have died, or
cannot be found, the propounder is not helpless, as Section 69 of the Evidence Act, 1872
is applicable.
18. In the present case, both attesting witnesses had died. The two sons of the testator
deposed about their presence when the will was signed by him. They also identified the
signatures of Nivas Bhuiya, who drew and signed the will. In addition, one Phani Bhusan
Bhuiya (PW-4), son of Nivas Bhuiya, deposed. In his evidence he deposed to having been
present when the testator and the two attesting witnesses signed the will; he was able to
identify their signatures. This witness was educated and a graduate. The circumstances
when the will was signed, where it was signed and who all were present, were deposed
by him. Additionally, the witness also withstood cross-examination.
19. Besides the deposition of witnesses, the trial court relied on the partition deed which
gave effect to it, and in which, shares in accordance with the terms of the will were
distributed. This document was a registered one; further, the late Upendra, predecessor
of the appellant, also signed a document which acknowledged the existence of the will.
20. If all the above circumstances are considered in totality, and one also keeps in mind
the fact that none of the heirs of Upendra contested the grant of letters of administration,
there can be only one conclusion, i.e., that the will was duly executed, and the
propounder/respondent herein was successful in proving it.
21. In view of the foregoing discussion, this court finds no infirmity with the findings in
the impugned judgment of the High Court. The appeal therefore fails, and is dismissed.
There shall be no order as to costs.
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The Supreme Court has held that the presumption under Section 90 of the Indian Evidence Act regarding the genuineness of documents aged more that thirty years old is not applicable to a will.
"wills cannot be proved only on the basis of their age – the presumption under Section 90 as to the regularity of documents more than 30 years of age is inapplicable when it comes to proof of wills", the Court held following the precedent M.B. Ramesh (D) by L.Rs. v K.M. Veeraje Urs (D) by L.Rs. & Ors[Civil Appeal No. 1071/2006, decided on 03.05.2013.
The Court also added that a will has to be proved in in terms of Sections 63(c) of the Succession Act, 1925, and Section 68 of the Evidence Act, 1872.
The Court further held that when attesting witnesses of a will are not available, Section 69 of the Evidence Act, 1872 is applicable.
“It is therefore clear that in the event where attesting witnesses may have died, or cannot be found, the propounder is not helpless, as Section 69 of the Evidence Act, 1872 is applicable”, Justices Ravindra Bhat and Hima Kohli held.
The Court was hearing a challenge against a Calcutta High Court order which affirmed a judgment and decree by the trial court allowing a petition for grant of letters of administration under Section 278 of the Indian Succession Act, 1925.
One Gosaidas Samanta, the testator, had three sons – Upendra, Anukul and Mahadev. He died and was survived by his three sons and widow Bhagbati Das, and left behind a will dated November 16, 1929. The testator bequeathed his estate among three heirs – his sons Anukul and Mahadev, and his grandson Shibu, the son of Upendra (who was not granted any share).
In 1945, a partition deed was drawn between these three co-sharers. This arrangement was apparently accepted by Upendra, who executed a disclaimer document, in respect of one part of the properties, sold by Shibu, out of his share. In 1952, alleging that he was in occupation of a part of the properties owned by the testator, and that he had purchased them from Upendra, the present appellant filed a suit for partition and possession. The suit was dismissed on the finding that the present appellant had no title.
That judgment was however reversed by the appellate court which passed a preliminary decree for partition. Upon a further appeal by the present respondent (the son of Mahadev), the High Court noticed that although the will had been relied upon, it was neither probated nor were letters of administration sought in respect of it.
The High Court cast doubts about the possession of the respondent herein. Having regard to the High Court’s finding, especially the absence of a probate or letters of administration, the respondents herein approached the Trial Court. At the time of trial, none of the attesting witnesses was alive. The trial court therefore, relied upon the depositions of two of the sons of the testator as well as the deposition of one Surendra Nath Bhowmick who deposed to having seen the testator duly sign the will.
The administration proceedings were contested by the present appellant, i.e., the purchaser of the properties from Upendra. He contended that the proceedings were not maintainable as relief was sought after an inordinately long period of time. The trial court relied upon the depositions of witnesses as well as the documents produced which included the registered deed of partition, which expressly mentioned the will in question. The trial court also relied upon a document, i.e., deed executed by Upendra, which also contained a reference to the will. The Trial Court recorded that the respondent was entitled to letters of administration. An appeal against that judgment was rejected. Therefore, the present appeal reached the Top Court.
What the Court held
In the present case, after explaining the legal provisions, the Court noted that both attesting witnesses had died. The two sons of the testator deposed about their presence when the will was signed by him. They also identified the signatures of Nivas Bhuiya, who drew and signed the will. In addition, one Phani Bhusan Bhuiya (PW-4), son of Nivas Bhuiya, deposed. In his evidence he deposed to having been present when the testator and the two attesting witnesses signed the will; he was able to identify their signatures.
“This witness was educated and a graduate. The circumstances when the will was signed, where it was signed and who all were present, were deposed by him. Additionally, the witness also withstood cross examination”, the court explained.
Besides the deposition of witnesses, the trial court relied on the partition deed which gave effect to it, and in which, shares in accordance with the terms of the will were distributed. This document was a registered one; further, the late Upendra, predecessor of the appellant, also signed a document which acknowledged the existence of the will.
“If all the above circumstances are considered in totality, and one also keeps in mind the fact that none of the heirs of Upendra contested the grant of letters of administration, there can be only one conclusion, i.e., that the will was duly executed, and the propounder/respondent herein was successful in proving it”, the Bench observed before dismissing the appeal.
Case Title: Ashutosh Samanta Versus Ranjan Bala Dasi & Ors | Civil Appeal No.7775 Of 2021
Indian Evidence Act 1872 - Section 90- wills cannot be proved only on the basis of their age – the presumption under Section 90 as to the regularity of documents more than 30 years of age is inapplicable when it comes to proof of wills - Wills have to be proved in terms of Sections 63(c) of the Succession Act, 1925, and Section 68 of the Evidence Act, 1872- Para 13- Followed M.B. Ramesh (D) by L.Rs. v K.M. Veeraje Urs (D) by L.Rs. & Ors[Civil Appeal No. 1071/2006, decided on 03.05.2013.
Indian Evidence Act Evidence Act 1872- Section 69- In the event where attesting witnesses may have died, or cannot be found, the propounder is not helpless, as Section 69 of the Evidence Act, 1872 is applicable- Para 17
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1. The present appeal is directed against an order passed by the
National Consumer Dispute Redressal Commission 1 whereby the
appellant herein was directed to pay a sum of Rs. 265.01 Crores
along with interest @ 10% p.a. from 19.9.2016 within a period of
three months. In case of failure to deposit the said amount, the
awarded amount would carry compensation in the form of simple
interest @ 12% p.a. The appellant has filed an application (IA No.
99210 of 2021) ex abundanti cautela to entertain the appeal as per
the provisions of the Consumer Protection Act, 1986 2. It is the said
application which is being decided by the present order.
2. The complainant was awarded a contract for construction of rain
water drainage, heavy sewerage and municipal road system by the
Basra, Iraq. The complainant obtained two specific
contracts (Letter of Credit Comprehensive Risks Policies) by paying
a sum of ₹10,38,03,912/- as premium to the appellant. The
grievance of the complainant was that the payment for invoices
issued for the work done under the contract was suspended. Later,
the contract also was withdrawn by the Government of Basra
owing to some internal conflict. The appellant herein rejected the
insurance claim of the complainant and thus relief was sought
before the National Commission by filing a complaint under Section
21(a)(i) of the 1986 Act. The said complaint was allowed on
3. The question now being examined here is as to whether the
present appeal would be governed under the Consumer Protection
Act, 20193 or under the erstwhile 1986 Act.
4. In terms of Section 67 of the 2019 Act, no appeal against the order
of National Commission shall be entertained by the Supreme Court
unless the person has deposited fifty per cent of the amount
required to be paid. Whereas, under the 1986 Act, by virtue of a
proviso inserted vide Central Act 62 of 2002 w.e.f. 15.3.2003, the
condition was that no appeal shall be entertained by the Supreme
Court unless the person who is required to pay the amount
deposits fifty per cent of the amount or fifty thousand, whichever is
Provided further that no appeal by a Provided further that no appeal
person who is required to pay any by a person who is required to
amount in terms of an order of the pay any amount in terms of an
National Commission shall be order of the National Commission
entertained by the Supreme Court shall be entertained by the
unless that person has deposited in Supreme Court unless that
the prescribed manner fifty per cent person has deposited fifty per
of that amount or rupees fifty cent of that amount in the
thousand, whichever is less. manner as may be prescribed.
5. Learned Attorney General appearing for the appellant submitted
that the appeal has been preferred under Section 23 of the 1986
Act and not under the 2019 Act which came into force from
20.7.2020. It was stated that the condition of deposit of 50% of the
amount is more onerous than what was provided under the 1986
Act. Therefore, keeping in view the principle that the law which is
applicable at the time of initiation of the lis would be applicable,
the provisions of 1986 Act would govern the present appeal and
not the provisions of 2019 Act. The appellant has deposited
₹50,000/- vide demand draft in terms of second proviso to Section
23 of the 1986 Act while exercising its right of appeal under the
1986 Act. Hence, the present appeal be heard on merits.
6. The learned Attorney General inter alia argued that Section 107 of
2019 Act and Section 6 of the General Clauses Act, 1897 4
unequivocally operate against any question of retrospectivity. Sub-
Section (2) of Section 107 of 2019 Act does not change the legal
position as mentioned under Section 6 of the General Clauses Act.
To appreciate the argument, Section 6 of the General Clauses Act
and Section 107 of the 2019 Act are reproduced hereunder:
6. Effect of Repeal. - Where this Act, or any Central Act or
Regulation made after the commencement of this Act,
repeals any enactment hitherto made or hereafter to be
made, then, unless a different intention appears, the repeal
(a) revive anything not in force or existing at the time at
(b) affect the previous operation of any enactment so
repealed or any thing duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired,
accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in
respect of any offence committed against any enactment so
(e) affect any investigation, legal proceeding or remedy in
respect of any such right, privilege, obligation, liability,
penalty, forfeiture or punishment as aforesaid;
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.
107. (1) The Consumer Protection Act, 1986 is hereby
(2) Notwithstanding such repeal, anything done or any
action taken or purported to have been done or taken under
the Act hereby repealed shall, in so far as it is not
inconsistent with the provisions of this Act, be deemed to
have been done or taken under the corresponding provisions
of this Act.
(3) The mention of particular matters in sub-section (2) shall
not be held to prejudice or affect the general application of
section 6 of the General Clauses Act, 1897 with regard to
the effect of repeal.”
7. Sub-section (2) of Section 107 of the 2019 Act protects the actions
taken under the 1986 Act insofar as such actions are not
inconsistent with the provisions of 2019 Act. Such actions shall be
deemed to have been undertaken as per the corresponding
provisions of 2019 Act. Sub-section (3) contemplates that the
particular matters in sub-section (2) shall not prejudice or affect the
general application of Section 6 of the General Clauses Act with
regard to the effect of repeal. Referring to clause (c) of Section 6 of
the General Clauses Act, it was argued that unless a different
intention appears, the repeal shall not affect any right, privilege,
obligation or liability acquired, accrued or incurred under any
enactment so repealed. Further, Clause (e) stipulates that the
repeal shall not affect any investigation, legal proceeding or
remedy in respect of any such right, privilege, obligation, liability,
penalty, forfeiture or punishment which may be imposed as if the
repealing Act or the Regulation has not been passed. It was thus
argued that the repeal of enactment does not affect any right
acquired or accrued under the enactment so repealed or affect any
legal proceeding in respect of such a right. Such effect was to be
construed only when a different intention appears from the
repealing statute. It was thus argued that the right to file an
appeal under the 1986 Act has accrued in favour of the appellant in
terms of Section 6(c) of the General Clauses Act and that no
different intention is discernable from the repealing Act.
8. To support the above arguments, the learned Attorney General has
relied upon Division Bench judgment of the Calcutta High Court
reported as Nogendra Nath Bose v. Mon Mohan Singha Roy &
Ors.5 which was approved by this Court in a judgment reported as
Hoosein Kasam Dada (India) Ltd. v. State of Madhya
S.R. Das speaking for the Bench with Hon’ble Mr. Justice M.C.
Mahajan was examining a matter consequent to the amendment
on 25.11.1949 by the Central Provinces and Berar Sales Tax
(Second Amendment) Act (Act 57 of 1949) amending the Central
Provinces and Berar Sales Tax Act, 1947. The proviso to Section
22(1) of the 1947 Act prior to the amendment as enacted provided
that no appeal against an order of assessment shall be entertained
unless it was satisfied that such amount of tax or penalty or both
as the appellant may admit to be due from him has been paid. The
amending act contemplated that no appeal shall be entertained
unless an appeal is accompanied by a satisfactory proof of the
payment of the tax, with penalty, if any, in respect of which the
appeal has been preferred. Therefore, there was change in the
condition of preferring an appeal from the amount admitted to be
due by the assessee than the payment of the tax and penalty of in
respect of which an appeal has been preferred.
9. It may be relevant to mention that the Court also noticed the
argument of the learned counsel for the State that until actual
assessment is made, there can be no lis and therefore, no right of
appeal can accrue before that date. The Court observed that when
assessee files a return, the lis may not immediately arise. The
authority may assess the return under Section 11 of the 1947 Act,
but if the authority is not satisfied as to the correctness of the
return and call for evidence, a controversy arises. In the aforesaid
case, the sales tax return was filed on 28.11.1947 and a notice by
the Assistant Commissioner of Sales Tax was issued on 25.1.1949
i.e. prior to the amendment. This Court held as under:
“8. The above decisions quite firmly establish and our
decisions in Janardan Reddy v. State [(1950) SCR 941] and
in Ganpat Rai v. Agarwal Chamber of Commerce Ltd. [(1952)
SCJ 564] uphold the principle that a right of appeal is not
merely a matter of procedure. It is a matter of substantive
right. This right of appeal from the decision of an inferior
tribunal to a superior tribunal becomes vested in a party
when proceedings are first initiated in, and before a decision
is given by, the inferior court. In the language of Jenkins, C.J.
in Nana bin Aba v. Shaik bin Andu to disturb an existing right
of appeal is not a mere alteration in procedure. Such a
vested right cannot be taken away except by express
enactment or necessary intendment. An intention to
interfere with or to impair or imperil such a vested right
cannot be presumed unless such intention be clearly
manifested by express words or necessary implication.
9. …. In our view the above observation is apposite and
applies to the case before us. The true implication of the
above observation as of the decisions in the other cases
referred to above is that the pre-existing right of appeal is
not destroyed by the amendment if the amendment is not
made retrospective by express words or necessary
intendment. The fact that the pre-existing right of appeal
continues to exist must, in its turn, necessarily imply that
the old law which created that right of appeal must also exist
to support the continuation of that right. As the old law
continues to exist for the purpose of supporting the pre-
existing right of appeal that old law must govern the
exercise and enforcement of that right of appeal and there
can then be no question of the amended provision
preventing the exercise of that right. The argument that the
authority has no option or jurisdiction to admit the appeal
unless it be accompanied by the deposit of the assessed tax
as required by the amended proviso to Section 22(1) of the
Act overlooks the fact of existence of the old law for the
purpose of supporting the pre-existing right and really
amounts to begging the question. The new proviso is wholly
inapplicable in such a situation and the jurisdiction of the
authority has to be exercised under the old law which so
continues to exist. The argument of Sri Ganapathy Aiyer on
this point, therefore, cannot be accepted.
10. Finally, Sri Ganapathy Aiyer faintly urges that until
actual assessment there can be no “lis” and, therefore, no
right of appeal can accrue before that event. There are two
answers to this plea. Whenever there is a proposition by one
party and an opposition to that proposition by another a “lis”
arises. It may be conceded, though not deciding it, that
when the assessee files his return a “lis” may not
immediately arise, for under Section 11(1) the authority may
accept the return as correct and complete. But if the
authority is not satisfied as to the correctness of the return
and calls for evidence, surely a controversy arises involving
a proposition by the assessee and an opposition by the
State. The circumstance that the authority who raises the
dispute is himself the Judge can make no difference, for the
authority raises the dispute in the interest of the State and
in so acting only represents the State. It will appear from the
dates given above that in this case the “lis” in the sense
explained above arose before the date of amendment of the
section. Further, even if the “lis” is to be taken as arising
only on the date of assessment, there was a possibility of
such a “lis” arising as soon as proceedings started with the
filing of the return or, at any rate, when the authority called
for evidence and started the hearing and the right of appeal
must be taken to have been in existence even on those
dates. For the purposes of the accrual of the right of appeal
the critical and relevant date is the date of initiation of the
proceedings and not the decision itself.”
10. Subsequently, the Constitution Bench in a judgment reported as
Garikapati Veeraya v. N. Subbiah Choudhry & Ors.7 approved
the judgment in Hoosein Kasam Dada, though the issue was in
respect of right of appeal to the Federal Court under the
Government of India Act, 1935. The argument was that the
appellant had a right to file an appeal as the suit, out of which the
proceedings arose before this Court, was filed on 22.4.1949.
Hence, he had acquired a vested right to appeal to the Federal
Court which has since been replaced by the Supreme Court. It was
the said argument which was accepted by the Constitution Bench
when the following principles were delineated:
“23. From the decisions cited above the following principles
(i) That the legal pursuit of a remedy, suit, appeal and
second appeal are really but steps in a series of proceedings
all connected by an intrinsic unity and are to be regarded as
one legal proceeding.
(ii) The right of appeal is not a mere matter of procedure but
is a substantive right.
(iii) The institution of the suit carries with it the implication
that all rights of appeal then in force are preserved to the
parties thereto till the rest of the career of the suit.
(iv) The right of appeal is a vested right and such a right to
enter the superior court accrues to the litigant and exists as
on and from the date the lis commences and although it
may be actually exercised when the adverse judgment is
pronounced such right is to be governed by the law
prevailing at the date of the institution of the suit or
proceeding and not by the law that prevails at the date of its
decision or at the date of the filing of the appeal.
(v) This vested right of appeal can be taken away only by a
subsequent enactment, if it so provides expressly or by
necessary intendment and not otherwise.
24. In the case before us the suit was instituted on April 22,
1949, and on the principle established by the decisions
referred to above the right of appeal vested in the parties
thereto at that date and is to be governed by the law as it
prevailed on that date, that is to say, on that date the
parties acquired the right, if unsuccessful, to go up in appeal
from the sub-court to the High Court and from the High
Court to the Federal Court under the Federal Court
(Enlargement of Jurisdiction) Act, 1947 read with clause 39
of the Letters Patent and Sections 109 and 110 of the Code
of Civil Procedure provided the conditions thereof were
satisfied. The question for our consideration is whether that
right has been taken away expressly or by necessary
intendment by any subsequent enactment. The respondents
to the application maintain that it has been so taken away
by the provisions of our Constitution.”
11. In a three-Judge Bench judgment reported as State of Bombay v.
M/s. Supreme General Films Exchange Ltd. & Anr. 8, the
argument which arose for consideration was that the court fees
payable on the memorandum of appeal would be as on the date of
filing of the suit and not as per the amendment in the Court Fees
Act, 1870 by Bombay Act 12 of 1954. The court fee on the
memorandum of appeal was thus held to be payable as was
applicable prior to the amendment of the Act. This Court held as
“12. It is thus clear that in a long line of decisions approved
by this Court and at least in one given by this Court, it has
been held that an impairment of the right of appeal by
putting a new restriction thereon or imposing a more
onerous condition is not a matter of procedure only; it
impairs or imperils a substantive right and an enactment
which does so is not retrospective unless it says so expressly
or by necessary intendment.”
12. The Constitution Bench in Vitthalbhai Naranbhai Patel v.
Commissioner of Sales Tax, M.P., Nagpur 9 was considering a
matter where the date on which sales tax returns were filed was
not disclosed. In the absence of the date of filing of the return, this
“9. The decision in Hoosein Kasam Dada’s case, 1953 SCR
987: (AIR 1953 SC 221), proceeded on the ground that when
a lis commences, all rights get crystallised and no clog upon
a likely appeal can be put, unless the law was made
retrospective, expressly or by clear implication. From the
record of this case, we cannot say when the lis commenced,
and unless it can be proved conclusively that it was before
the amendment of the law, the rule in Hoosein Kasam
Dada’s case, 1953 SCR 987: (AIR 1953 SC 221), cannot
apply. There is no averment that right of appeal had vested,
and has been wrongly taken away.”
13. In another Constitution Bench judgment of this Court reported as
M/s. Hardeodas Jagannath v. The State of Assam & Ors.10,
none of the previous judgments were referred to and thus, it prima
facie appears to have taken a somewhat different view than what
was held in the earlier Constitution Bench judgments. But if
examined closely, the said judgment is not taking any contrary
view and is in line with the earlier judgments of this Court. The
issue was about an amendment dated 1.4.1958 in the Assam Sales
Tax Act, 1947 requiring deposit of assessed tax and penalty as
condition of filing of appeal. The assessee had filed half yearly
returns for periods ending on 30.9.1956, 31.3.1957 and 30.9.1957
respectively. The premises of the assessee were searched on
6.3.1959 and the account books etc. were seized. A notice for
reassessment was issued on 4.4.1959 under Section 19A of the
Assam Sales Tax Act, 1947. It was in this background, this Court
“9. It was contended that the amendment came into force
with effect from April 1, 1958 and it cannot be given
retrospective effect so as to apply to assessment periods
ending on September 30, 1956, March 31, 1957 and
September 30, 1957. We are unable to accept this argument
as correct because the assessments for these three periods
were completed after the amending Act came into force i.e.,
after April 1, 1958. The appeals against the assessments
were also filed after the amendment. It is therefore not
correct to say that the amending Act has been given a
retrospective effect and the Assistant Commissioner of Taxes
was therefore right in asking the appellant to comply with
the provisions of the amended Section 30 of the Act before
dealing with the appeals.”
14. Since the returns were filed prior to the amendment but the notice
for reassessment was issued after the Amending Act came into
force, therefore, in view of the Hoosein Kasam Dada, the
provisions of the Amending Act alone would be applicable and that
is what has been held by this Court.
15. In a judgment reported as K. Raveendranathan Nair & Anr. v.
Commissioner of Income Tax & Ors. 11, it has been held that the
relevant date for paying the court fee would be when the
proceedings were initiated in the lowest court and not when the
appeal was preferred before the High Court in view of the
amendment in the Kerala Court Fees and Suits Valuation Act, 1959.
16. In Anant Mills Co. Ltd. v. State of Gujarat & Ors.12, a four-
Judge Bench of this Court held that since the authority entertaining
appeal has a jurisdiction to dispense with the compliance of
requirement to deposit the amount of property tax, it is not
onerous as discretion was vested with the appellate court. In
another judgment reported as Gujarat Agro Industries Co. Ltd.
v. Municipal Corporation of the City of Ahmedabad & Ors. 13,
the judgment in Anant Mills was followed.
17. This Court in a judgment reported as Ramesh Singh & Anr. v.
Cinta Devi & Ors.14 held that an appeal under the Motor Vehicles
Act, 1988 contemplating deposit of twenty-five thousand rupees or
fifty per cent of the amount whichever is less will not be applicable
to the claim applications filed under Motor Vehicles Act, 1939.
Similar is the view of another Bench of this Court in a judgment
reported as M/s Gurcharan Singh Baldev Singh v. Yashwant
Singh & Ors.15 wherein the right of appeal conferred under the
Motor Vehicles Act, 1939 could not be said to be taken away after
repeal of such Act by the Motor Vehicles Act, 1988.
18. Mr. Nidhesh Gupta, learned senior counsel appearing for the
respondent submitted that the amendment is procedural in nature
and thus always retrospective. Reliance was placed upon
Thirumalai Chemicals Limited v. Union of India & Ors.16. It
was averred that procedure includes the manner and form of filing
of appeal, pre-deposit and limitation. The right of appeal is a
statutory right which can be taken away by express provision of
law, therefore, the conditions on which an appeal would lie is also
within the legislative competence.
19. We find that the reliance on Thirumalai Chemicals Limited may
not be correct as this Court held that Section 49 of FEMA does not
seek to withdraw or take away the vested right of appeal in cases
where proceedings were initiated prior to repeal of FERA on
01.06.2000 or after. The said judgment in fact held that liberal
provision of condonation of delay as provided in the new Act would
“28. Above discussion will clearly demonstrate that Section
49 of FEMA does not seek to withdraw or take away the
vested right of appeal in cases where proceedings were
initiated prior to repeal of FERA on 01.06.2000 or after. On a
combined reading of Section 49 of FEMA and Section 6 of
General Clauses Act, it is clear that the procedure prescribed
by FEMA only would be applicable in respect of an appeal filed
under FEMA though cause of action arose under FERA. In fact,
the time limit prescribed under FERA was taken away under
the proviso to sub-section (2) of Section 19 and the Tribunal
has been conferred with wide powers to condone delay if the
appeal is not filed within forty-five days prescribed, provided
sufficient cause is shown. Therefore, the findings rendered by
the Tribunal as well as the High Court that the Tribunal does
not have jurisdiction to condone the delay beyond the date
prescribed under FERA is not a correct understanding of the
law on the subject.
29. We, therefore, hold that the Appellate Tribunal can
entertain the appeal after the prescribed period of 45 days if it
is satisfied, that there was sufficient cause for not filing the
appeal within the said period. We are therefore inclined to set
aside the orders passed by the Tribunal and the High Court
and remit the matter back to the Tribunal for fresh
consideration in accordance with law on the basis of the
findings recorded by us…”
20. Mr. Gupta also referred to the three-Judge Bench judgment of this
Court reported as Newtech Promoters and Developers Pvt.
Ltd. v. State of UP & Ors.17 wherein pre-deposit was required to
be made while filing an appeal under the Real Estate (Regulation
and Development) Act, 2016. The said judgment is not applicable
as while framing the statute, Section 43(5) contemplating pre-
deposit was part of the initially enacted provision. Similarly,
another judgment reported as Tecnimont Pvt. Ltd. v. State of
Punjab & Ors.18 is also in respect of right of appeal on pre-deposit
which was enacted originally in the Punjab Value Added Tax Act.
21. The learned counsel for the respondent has also relied upon
Division Bench judgments in Sri Satya Nand Jha v. Union of
India & Ors.19 and M/s. Indian Oil Corporation v. Orissa Sales
Tax Tribunal, CTC & Ors.20. It is to be noted that the Orissa High
Court in Indian Oil Corporation was in fact considering the
reverse proposition wherein condition of pre-deposit of 50% of the
deposited amount of tax was deleted. The writ petition was filed
by the assessee to challenge the notice issued by the State to
deposit 50% of the deposited amount after the amendment. The
“24. The Apex Court time & again held that right of appeal is
a substantive right, but how the appeal is to be decided is a
matter of procedure. The rules of procedure are intended to
advance justice & not to defeat it. “Procedural law is
intended to facilitate & not to obstruct the course of
substantive justice.” (vide Hoosein Kasam Dada (India)
Ltd. v. State of M.P., AIR 1953 SC 221; Garikapati
Veeraya v. N. Subbiah Choudhry; AIR 1957 SC 540; M/s.
Ganesh Trading Co. v. Moji Ram, (1978) 2 SCC 91 : AIR 1978
SC 484; Harcharan v. State of Haryana, (1982) 3 SCC 408 :
Nagpur v. Swaraj Developers, (2003) 6 SCC 659 : AIR 2003
25. In the instant case, as the provision of the pre-deposit
condition for entertaining the appeal has been deleted prior
to entertaining the appeal being a procedural matter, the
amendment would apply retrospectively. The instant case is
squarely covered by the Judgment of the Hon'ble Supreme
Court in Lakshmi Rattan Engineering Works Ltd. (supra).”
22. The High Court of Jharkhand in Sri Satya Nand Jha was dealing
with the amendment in Section 35 of the Central Excise Act, 1944
by Section 105 of the Finance Act, 2014 prescribing that 7.5% or
10% of the duty demand or penalty levied is to be deposited. In
the said case, the pre-amended provision was that if the appellate
authority on being satisfied that the deposit of the duty demanded
or penalty levied would cause undue hardship, then the condition
of pre-deposit could be dispensed with. But subsequent to the
amendment, 7% of the duty assessed and 10% of the penalty
levied was made mandatory to be deposited. It may be noticed
that the second proviso clarified that the provisions of the
amended Section 35 shall not be applied to the stay applications
and appeals pending before any appellate authority prior to the
commencement of the Finance Act, 2014. Therefore, the issue
arising in the said case was of legality and validity of the pre-
deposit and not the retrospectivity of the said provision.
23. Mr. Gupta has relied upon the judgment of this Court in Manohar
Infrastructure and Constructions Private Limited v. Sanjeev
Kumar Sharma & Ors.21 in which the dispute was that the NCDRC
had granted stay subject to deposit of the entire decretal amount.
No argument was raised or decided for retrospectivity of Section 51
of the 2019 Act but the question raised was whether the NCDRC
could direct such deposit of the entire decretal amount pending
appeal though the statute prescribes pre-deposit of 50% of the
amount in dispute.
24. It was contended that the consumer protection legislation is a
beneficial legislation, therefore, the interpretation which benefits
the consumer should be preferred as held by this Court in Neena
Aneja & Anr. v. Jai Prakash Associates Ltd.22.
25. It is to be noted that in Neena Aneja, this Court held that right to
forum is not an accrued right. Section 6(e) of the General Clauses
Act protects the pending legal proceeding for enforcement of the
accrued right from the effect of repeal; it does not mean the legal
proceeding at a particular forum was saved from the effect of
repeal. This Court found that there was no express intention in the
repealing enactment that all pending cases would stand
transferred to the fora created under 2019 Act. This Court held as
21 Civil Appeal No. 7098 of 2021 with Ors. decided on 7.12.2021
“78. Having stated the above position, we need to
harmonize it with the principle that the right to a forum is
not an accrued right, as discussed in Part C of this
judgement. Simply put, while Section 6(e) of the General
Clauses Act protects the pending legal proceedings for the
enforcement of an accrued right from the effect of a repeal,
this does not mean that the legal proceedings at a particular
forum are saved from the effects from the repeal. The
question whether the pending legal proceedings are
required to be transferred to the newly created forum by
virtue of the repeal would still persist. As discussed, this
Court in New India Assurance (supra) and Maria
Christina (supra) has held that forum is a matter pertaining
to procedural law and therefore the litigant has to pursue
the legal proceedings at the forum created by the repealing
act, unless a contrary intention appears. This principle would
also apply to pending proceedings, as observed in Ramesh
and Sudhir G Angur (supra). In this backdrop, what is
relevant to ascertain is whether a contrary intent to the
general rule of retrospectivity has been expressed under the
Act of 2019 to continue the proceedings at the older forum.
79. Now, in considering the expression of intent in the
repealing enactment in the present case, it is apparent that
there is no express language indicating that all pending
cases would stand transferred to the fora created by the Act
of 2019 by applying its newly prescribed pecuniary limits. In
deducing whether there is a contrary intent, the legislative
scheme and procedural history may provide a relevant
insight into the intention of the legislature.
84. … The legislature cannot be attributed to be remiss in
not explicitly providing for transfer of pending cases
according to the new pecuniary limits set up for
the fora established by the new law, were that to be its
intention. The omission, when contextualized against the
statutory scheme, portends a contrary intention to protect
pending proceedings through Section 107(2) of the Act of
2019. This intention appears likely, particularly in light of
previous decisions of the NCDRC which had interpreted
amendments that enhanced pecuniary jurisdiction, with
prospective effect. The NCDRC, in Southfield Paints and
Chemicals Pvt. Ltd. v. New India Assurance Co. Ltd.,
Consumer Case No. 286 of 2000 (NCDRC) construed
amending Act 62 of 2002 by which the pecuniary limits of
jurisdiction were enhanced with effect from 15 March 2003
as prospective by relying on its earlier decision in Premier
Automobiles Ltd. v. Dr. Manoj Ramachandran, Revision
Petitions Nos. 400 to 402 of 1993, where the NCDRC held
that the amendments enhancing the pecuniary jurisdiction
are prospective in nature [albeit on a reliance of the
principle in Dhadi Sahu (supra)]. Parliament would be
conscious of this governing principle and yet chose not to
alter it in its application to the consumer fora.”
26. Having said so, this Court held that serious hardship would be
caused to the consumers if the cases already instituted before
National Consumer Disputes Redressal Commission were required
to be transferred to the State Consumer Disputes Redressal Forum.
Thereafter, the proceedings instituted before the commencement
of 2019 Act would continue before the fora corresponding to the
provisions under the 1986 Act.
27. Reliance was also placed upon judgment of this Court reported as
New India Assurance Co. Ltd. v. Smt. Shanti Misra23 wherein
the change in forum was said to be covered under procedural law.
In the said referred judgment, there was change of forum of filing
of a claim application under the Motor Vehicle Act, 1939 from that
of a civil suit. It was held that change of forum would apply
retrospectively. It was held that claimant have a vested right of
action and not of forum. Such is not the question posed before us
in the present appeal.
28. The change of forum and period of limitation have been held to be
procedural law even in the judgments reported in Videocon
International Limited v. Securities and Exchange Board of
India24, and Maria Cristina De Souza Sodder & Ors. v. Amria
29. Mr. Gupta has also relied upon Harihar Polyfibres v. Regional
v. Harjol Ahluwalia & Anr.27, Kishore Lal v. Chairman,
Employees’ State Insurance Corpn.28 and K.H. Nazar v.
Mathew K. Jacob & Ors.29 to contend that in respect of beneficial
legislations, the interpretation which support the intention of law
should be accepted.
30. In Harihar Polyfibres, this Court was examining the scope of
expression wages in the Employees’ State Insurance Act, 1948. It
was held that the Act in question was a beneficial legislation and
thus any ambiguous expression was bound to receive a beneficial
construction. The present dispute is not of any ambiguity, therefore
principles laid down in this case are not applicable.
31. In Spring Meadows Hospital, this Court held that the definition
clause of Section 2(1)(d)(ii) of the 1986 Act is wide enough to
include not only the person who hires the services but also the
beneficiary of such services. Thus, both the parents of the child as
well as the child would be consumer under the 1986 Act to claim
compensation under the Act. In Kishore Lal, this court held that
the definition of 'consumer' in the 1986 Act is apparently wide
enough and encompasses within its fold not only the goods but
also the services, bought or hired for consideration. In K.H. Nazar,
the question was, whether a rocky land which was used for
quarrying purposes can be treated as a “commercial site”, thus
exempt from the purview of the Kerala Land Reforms Act, 1963. We
are not concerned with interpretation to be given to a clause in the
statute as in the judgments referred to by the respondents but only
with the effect of substitution of a provision than earlier provisions.
32. The Division Bench of the Madras High Court in M/s. Dream
Castle & Anr. v. Union of India & Ors.30 dealing with amended
Section 35 of the Central Excise Act by Finance Act No. 2 of 2014
held that when the unamended condition gave only a chance or
hope for an assessee to get a total waiver at the discretion of the
Appellate Authority, the same cannot be equated to a vested right
or stated to be retrospective, unless it is definitely shown that the
amended condition is more onerous than the unamended
“54. Therefore, it is well settled that the right of appeal is a
creature of statute and the legislature is well within its
competence to impose conditions for the exercise of such a
right subject only to the restriction that the conditions so
imposed are not so onerous as to amount to unreasonable
restrictions rendering the right almost illusory.
30 W.P. No. 13431 of 2015 etc. decided on 18.4.2016
59. Therefore, if one condition that was already available in
the statute for the exercise of a right of appeal, is merely
replaced by another condition, the same cannot be said to
be retrospective, unless it is definitely shown that the
amended condition is more onerous than the unamended
condition. When the unamended condition gave only a
chance or hope for an assessee to get a total waiver at the
discretion of the Appellate Authority, the same cannot be
equated to a vested right. A mere chance of convincing the
Appellate Authority to exercise the discretion for the grant of
a total waiver is no vested right. The amendment, in our
considered view, did not take away a right vested, but
merely made a chance divested. What has now gone, is not
the right, but the chance or hope. Therefore, the first
contention of the learned Senior counsel for the petitioner is
liable to be rejected.”
33. There is another line of judgments taking a view that right of
appeal is a creation of statute and the legislature is competent to
determine the conditions on which an appeal would lie. These are
not the cases of amending or repeal of a statute, therefore, such
judgments are not applicable to the questions arising in the
present application.
34. In view of the binding precedents of the Constitution Bench
judgments referred to above, we hold that onerous condition of
payment of 50% of the amount awarded will not be applicable to
the complaints filed prior to the commencement of the 2019 Act.
Therefore, the I.A. is allowed.
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The Supreme Court held that the onerous condition of payment of 50% of the amount awarded to file appeal against NCDRC order will not be applicable to the complaints filed prior to the commencement of the Consumer Protection Act, 2019.The consumer complaint, in this case, was filed before the National Consumer Disputes Redressal Commission before the 2019 Act came into force. But the...
The Supreme Court held that the onerous condition of payment of 50% of the amount awarded to file appeal against NCDRC order will not be applicable to the complaints filed prior to the commencement of the Consumer Protection Act, 2019.
The consumer complaint, in this case, was filed before the National Consumer Disputes Redressal Commission before the 2019 Act came into force. But the NCDRC allowed the complaint on 27.1.2021, whereas the 2019 Act came into force from 20.7.2020.
NCDRC Can Direct Deposit Of Entire Or More Than 50% Of Amount Determined By SCDRC For Stay : Supreme Court
So the question before the Apex Court bench was whether the appeal before it would be governed under the Consumer Protection Act, 2019 or under the erstwhile 1986 Act. This issue became relevant since, in terms of Section 67 of the 2019 Act, no appeal against the order of National Commission shall be entertained by the Supreme Court unless the person has deposited fifty per cent of the amount required to be paid. Whereas, under the 1986 Act, the condition was that no appeal shall be entertained by the Supreme Court unless the person who is required to pay the amount deposits fifty per cent of the amount or fifty thousand, whichever is less.
Before the Apex court, it was contended that the law which is applicable at the time of initiation of the lis would be applicable, and therefore the provisions of 1986 Act would govern the present appeal and not the provisions of 2019 Act. Opposing this, the respondent contended that the amendment is procedural in nature and thus always retrospective.
In its judgment, the bench comprising Justices Hemant Gupta and V. Ramasubramanian refers to and discusses various judgments, including those by Constitution bench of the Supreme Court, to finally conclude thus:
"34. In view of the binding precedents of the Constitution Bench judgments referred to above, we hold that onerous condition of payment of 50% of the amount awarded will not be applicable to the complaints filed prior to the commencement of the 2019 Act."
Case name: ECGC Limited Vs Mokul Shriram EPC JV
Case no.|date: IA 99210 OF 2021 in CA 1842 OF 2021 | 15 Feb 2022
Coram: Justices Hemant Gupta and V. Ramasubramanian
Counsel for Appellant: Mr. K.K. Venugopal, AG Mr. Rajshekhar Rao, Sr. Adv. Mr. Naval Sharma, Adv. Mr. Saket Satapathy, Adv. Mr. Rohan Batra, AOR Ms. Sonali Malik, Adv. Mr. Chinmayee Prasad, Adv. Mr. Harsh Vardhan Arora, Adv. Mr. Dhruv Sethi, Adv. Mr. Areebama N., Adv. Mr. Padmanabh Sethunath,
For Respondents: Mr. Nidhesh Gupta, Sr. Adv. Mr. Japneet Kaur, Adv. Ms. Pallavi Singh, Adv. Ms. Vriti Gujral, Adv. Mr. Madhav Gupta, Adv. Mr. Ravin Swarup, Adv. Mr. Devesh Tripathi, Adv. Mr. Anasuya Chaudhary, Adv. Mr. Faraz Anees, Adv. Mr. Mukeshwar Nath Dubey, Adv. Ms. Payal Swarup, Adv. Mr. Praveen Swarup, AOR
Head notes:
Consumer Protection Act, 2019 - Section 67 Proviso - Onerous condition of payment of 50% of the amount awarded will not be applicable to the complaints filed prior to the commencement of the 2019 Act. (Para 34)
|
The petitioner has invoked the writ jurisdiction of this Court
claiming his release for the reason that he has undergone more than
21 years of sentence including 16 years of actual sentence.
The petitioner was convicted along with other accused for an
offence under Section 302 read with Section 149 IPC for causing
murder of two persons on 28.09.2005.
The claim of the petitioner is based upon the policy dated
11.08.2005 and 17.01.2006. The learned Counsel for the petitioner
argued that the petitioner is entitled for remission for the reason
that he has completed 20 years of sentence including remission.
However, we do not find that the petitioner is covered by any of
the two policies.
The policy dated 11.08.2005 is in respect of the convicts who
are convicted prior to 11.08.2005. Such policy was issued for
granting remission on the eve of Independence Day i.e. 15.08.2005.
The petitioner was convicted thereafter on 28.09.2005. Therefore,
benefit of such policy cannot be availed by the petitioner.
The policy dated 17.01.2006 is in respect of the convicts who
have been convicted on or before 26.01.2006. The petitioner relies
upon sub-Clause (2) of Clause 1 of policy No.F.No.3-2/2006/3/Jail
dated 17.01.2006 which reads as under:-
“Prisoners sentenced to imprisonment for life
after 18th December, 1978 who have undergone 14
years of sentence inclusive of undertrial periods
and completed 20 years of sentence including
remission on 26th January, 2006, be released
unconditionally.”
However, the benefit of such clause cannot be availed by the
petitioner for the reason that he has not completed 20 years of
sentence including the remission on 26.01.2006.
The policy which will be applicable to the petitioner is the
policy dated 10.01.2012 wherein the following clauses are relevant:
“1. A) Remission in conviction of convicts who have been
sentenced to undergo life imprisonment.
(1) Such life convicts who have not been convicted
for any other period along with the life
imprisonment and have undergone sentence of 14 years
including the period of trial, they will be released
after completion of 20 years sentence including the
remission period”
(5) Such life convicts who have been sentenced for
one or more life imprisonment besides the life
imprisonment and who have undergone 20 years
sentence including the trial period, they will be
released after completion of 26 years of sentence
including the remission.”
The grievance of the petitioner is that though the petitioner
is an accused of killing two persons but the punishment of only one
life imprisonment could be granted in view of judgment of this
Court in “Muthuramalingam & Ors. Vs. State Rep. by Inspector of
Police, reported in (2016) 8 SCC 313”. Therefore, Clause (5) of the
Policy dated 10.01.2012 will not be applicable.
We do not find any merit in the said argument.
In terms of the policy of sentencing, there cannot be
consecutive life imprisonment one after the another. But the fact
remains that for each of the death of the victim, the petitioner
has been convicted for an offence under Section 302 IPC. Therefore,
it would be Clause (5) which will be applicable to consider the
premature release case of the petitioner as he has been sentenced
for more than one life imprisonment for causing death of two
persons. The Competent Authority has declined the case of remission
on relying upon Clause (5). It is not a case of imposition of life
imprisonment consecutively. It is a case of imposition of
concurrent life imprisonment. Such sentence of imprisonment is not
the subject matter in an appeal before the Competent Court.
In view thereof, we do not find any merit in the present writ
The writ petition is dismissed accordingly.
Pending application(s), if any, also stand disposed of.
Date : 13-09-2021 This matter was called on for hearing today.
UPON hearing the counsel the Court made the following
The writ petition is dismissed in terms of the signed
Pending applications, if any, also stand disposed of.
(Signed order is placed on the file)
|
There is no bar in imposing concurrent life imprisonments on accused convicted for murder of more than one persons, the Supreme Court observed in a recent order.The court observed thus while considering a writ petition filed by a prisoner claiming his release for the reason that he has undergone more than 21 years of sentence including 16 years of actual sentence.In this case, the...
There is no bar in imposing concurrent life imprisonments on accused convicted for murder of more than one persons, the Supreme Court observed in a recent order.
The court observed thus while considering a writ petition filed by a prisoner claiming his release for the reason that he has undergone more than 21 years of sentence including 16 years of actual sentence.
In this case, the remission policy applicable had a clause (5) which provided that life convicts who have been sentenced for one or more life imprisonment besides the life imprisonment and who have undergone 20 years sentence including the trial period, they will be released after completion of 26 years of sentence including the remission.
The petitioner was convicted for killing two persons and was awarded life imprisonment twice, one for each murder.
However, the contention raised by the petitioner was that only one life imprisonment could be granted in view of judgment in "Muthuramalingam & Ors. Vs. State Rep. by Inspector of Police, reported in (2016) 8 SCC 313".
"In terms of the policy of sentencing, there cannot be consecutive life imprisonment one after the another. But the fact remains that for each of the death of the victim, the petitioner has been convicted for an offence under Section 302 IPC. It is not a case of imposition of life imprisonment consecutively. It is a case of imposition of concurrent life imprisonment. ", the bench of Justices Hemant Gupta and V. Ramasubramanian said.
Therefore, the court said that Clause (5) will be applicable to consider the premature release case of the petitioner as he has been sentenced for more than one life imprisonment for causing death of two persons. The Competent Authority has therefore rightly declined the case of remission on relying upon Clause (5), the court said.
Case name: Mahavir vs. State of Madhya Pradesh
Case no.| Date: WP(Crl) 294/2021 | 13 September 2021
Coram: Justices Hemant Gupta and V. Ramasubramanian
Counsel: AOR Rishi Malhotra for petitioner, AOR Pashupati Nath Razdan for respondents
|
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court of Judicature at Allahabad vide
order dated 23.01.2020 passed in Special Appeal No.638 of 2012 by
which the Division Bench of the High Court has dismissed the said
appeal and has confirmed the judgment and order passed by the
learned Single Judge by which the learned Single Judge has allowed
the writ petition preferred by the Respondent No.4 herein and
quashed and set aside the appointment of the appellants herein, the
original Respondent Nos. 3 to 5 whose appointments have been
quashed by the High Court have preferred the present appeal.
2. The facts leading to the present appeal in nutshell are as under:
2.1 In the judgeship of Moradabad in the year 1987, a competitive
examination was held for filling up the post of English and Hindi
Stenographers. The appellants herein initially participated for the
post of English Stenographers. Select list of English Stenographers
(containing the names of the appellants herein) and Hindi
Stenographers was prepared on 14.07.1987. However, since there
were no vacancies in the judgeship for the post of English
Stenographers, no appointments were given to the candidates in the
select list of English Stenographers (including the appellants herein).
As per Rule 14(3) of the Subordinate Civil Courts Ministerial
Establishment Rules, 1947 (hereinafter referred to as ‘the Rules,
1947’) select list was to remain valid for one year and the said select
list dated 14.07.1987 came to an end on 13.07.1988. At the same
time, Hindi Stenographers were given appointment as per the select
list. However, since there were some leave vacancies of temporary
nature in the post of Hindi Stenographers, the appellants were
appointed on temporary basis against those leave vacancies, for a
period of one month from 14.10.1987 to 15.11.1987. At this stage, it
is required to be noted that in their respective appointment letters it
was specifically stated that their appointments shall be terminated
once the regular employees resume their duties.
That thereafter fresh examination was conducted for the post of
Hindi Stenographers on 24.09.1988. Pursuant thereto Respondent
Nos. 1 to 3 herein were appointed on the substantive post of Hindi
Stenographers as per merit and the select list. Therefore, as such
Respondent Nos. 1 to 3 herein were appointed. As the appellants
herein were appointed on leave vacancies of a temporary nature,
their services were required to be terminated once the regular
employees resume their duties. However, representations were
made by the appellants to the District Judge, Moradabad. The
District Judge, Moradabad forwarded his comments on the same to
vide administrative order dated 22.05.1990 to District Judge,
Moradabad directed that the approved list of ex-stenos and Hindi
stenos dated 14.07.1987 be prepared and their names be arranged in
the order of merit. At this stage, it is required to be noted that in the
communication dated 22.05.1990, it was specifically mentioned that
the appointment of the appellants was temporary and on leave
vacancies. It appears that thereafter a typing/speed test was
conducted for the appellants for the post of Hindi Stenographers.
The Officer-In-charge proceeded and conducted Hindi typing test of
appellants and one more candidate on 29.05.1990. In the said
examination all the three appellants were found not qualified as per
Rule 5(c) of the Rules, 1947 and their typing test was found less than
the prescribed. Thus, the appellants failed in the speed test for the
post of Hindi Stenographers. Despite the above without
communicating to the High Court that the appellants have failed the
speed test, the District Judge, Moradabad terminated the services of
Respondent Nos.1 to 3 herein who were selected after due process
and in compliance of the Rules of 1947 and appointed the appellants
on 05.06.1990, against the post held by Respondent Nos. 1 to 3
herein by terminating the services of Respondent Nos. 1 to 3. The
appointment of the appellants and the termination of Respondent
Nos. 1 to 3 was challenged before the High Court by Respondent
Nos. 1 to 3 herein. The learned Single Judge allowed the said writ
petition and quashed and set aside the appointment of the appellants
herein and set aside the orders of termination terminating the
services of Respondent Nos.1 to 3 herein. The special appeal
against the order and judgment passed by the learned Single Judge
has been dismissed by the Division Bench by impugned judgment
and order dated 23.01.2020. Hence, the present appeal.
3. Mr. Pardeep Gupta, learned counsel appearing on behalf of the
appellants has vehemently submitted in the facts and circumstances
of the case more particularly when the appellants worked for almost
29 years and that too after the High Court of Allahabad vide its order
dated 22.05.1990 approved the appointment of the appellants as
Stenographers and directed the District Judge, Moradabad to issue
the appointment letters and in accordance with the same the
appointment letters dated 05.06.1990 were issued, it is not justified to
quash their appointments.
It is vehemently submitted that as such Rule 14(3) of the Rules,
1947 shall not be applicable to the recruitment list on merit under
Rule 11 and can be made applicable only to the reserved category
candidates under Rule 12. It is submitted that the High Court has
erred in relying upon the said rule for setting aside the appointment of
the appellants.
It is further submitted that the High Court has erred in treating
the appellants’ appointment against leave vacancy vide orders dated
14.10.1987, 15.10.1987 etc. and has failed to consider that the
appellants have continuously worked for more than 30 years.
The High Court has not properly appreciated the fact that
though the appointment of the Respondent Nos. 1 to 3 were
approved on the basis of the selection list dated 29.11.1988, they
were given appointment only in the year 2012, i.e., after a lapse of
more than 24 years of select list dated 29.11.1988. It is submitted
that therefore there is no justification to approve the appointment of
the respondents when they were already become age barred, i.e., 50
years old.
4. Making the above submissions, it is prayed to allow the present
appeal and protect the services of the appellants.
5. Present appeal is opposed by Ms. Preetika Dwivedi, learned
counsel appearing on behalf of Respondent No.4 – High Court of
Judicature at Allahabad. It is submitted that the appellants initially
participated for the post of English Stenographers in the year 1987.
However, since there were no vacancies, their names were placed on
the select list on 14.07.1987. It is submitted that the select list was
valid only for one year and came to an end on 13.07.1988, in view of
the provisions contained in Rule 14(3) of the Rules, 1947. It is
submitted that no appointments were given to the appellants to the
post of English Stenographers for want of vacancies for the post of
English Stenographers. It is submitted that however in the year 1987,
there were some leave vacancies of a temporary nature, in the post
of Hindi Stenographers and therefore the appellants were appointed
on temporary basis against leave vacancies for a period of one month
from 14.10.1987 to 15.11.1987. It is submitted that in the
appointment letter it was specifically stated that their appointment
shall be terminated once the regular employees resume their duties.
It is submitted that thereafter fresh recruitment process was initiated
and the fresh examination was conducted for the post of Hindi
Stenographers on 24.09.1988 and pursuant thereto, Respondent
Nos. 1 to 3 were appointed. It is submitted that however thereafter
the representations were made by the appellants to the District
Judge, Moradabad which was forwarded to the High Court and the
Deputy Registrar, High Court vide administrative order dated
22.05.1990 though noted that the appellants were appointed
temporarily, directed that the approved list of ex-stenos and Hindi
Stenos dated 14.07.1987 be prepared and their names be arranged
in the order of merit. It is submitted that pursuant thereto a speed
test was conducted for the appellants in accordance with the Rules
and the appellants failed to achieve and possess the minimum speed
required for the post of Hindi Stenographers, the fact which was not
communicated to the High Court thereafter. It is submitted that
despite the above the District Judge, Moradabad continued the
appellants and terminated the services of Respondent Nos. 1 to 3
who were appointed after due process and in compliance to the
Rules of 1947 and appointed the appellants against the post held by
Respondent Nos.1 to 3. It is submitted that therefore, the High Court
has rightly quashed the appointment of the appellants and has rightly
quashed the termination of Respondent Nos. 1 to 3.
6. It is submitted that the appellants are not entitled to any relief
as they were never appointed to the post of Hindi Stenographers,
after following due selection procedure. It is submitted that on the
contrary the respondents were appointed after following proper
selection procedure. It is submitted that the appointment of
Respondent Nos. 1 to 3 was on the substantive sanctioned posts. It
is submitted that there cannot be two persons working on one
sanctioned post. It is submitted that therefore once the Respondent
Nos. 1 to 3 were selected and appointed after following due selection
procedure on the post of Hindi Stenographers and the appellants
were appointed on leave vacancies, as a consequence the
Respondent Nos. 1 to 3 have to be appointed and the appellants
have to give way to those who are duly selected after following
selection procedure. It is submitted that therefore, the High Court has
not committed any error in passing the impugned judgment and order.
It is submitted that no interference of this Court in exercise of powers
under Article 136 of the Constitution of India is called for.
7. Dr. Ashutosh Garg, learned Counsel appearing on behalf of the
Respondent Nos. 1 to 3 have supported the impugned judgment and
order passed by the learned Single Judge and confirmed by the
Division Bench by adopting the submissions made by the counsel on
behalf of the High Court.
8. Heard learned counsel for the respective parties at length.
9. At the outset, it is required to be noted that initially the
appellants participated in the selection process for the post of English
Stenographers in the year 1987. They never applied for the post of
Hindi Stenographers in the year 1987. Since there were no
vacancies of English Stenographers in the District Court, Moradabad
no appointments were made and appellants were not appointed on
the post of English Stenographers of which they applied. However,
they were placed on the select list on 14.07.1987. As per Rule 14(3)
of the Rules, 1947 the validity of the select list was for one year and
therefore, the said select list dated 14.07.1987 came to an end on
13.07.1988. Thereafter the appellants could not have claimed any
appointment on the basis of the expired select list. However, it
appears that there were some leave vacancies of temporary nature in
the post of Hindi Stenographers and therefore, the appellants were
appointed purely on temporary basis on the said leave vacancies, for
a period of one month from 14.10.1987 to 15.11.1987. At this stage,
it is required to be noted that in the appointment letter itself it was
stated that their appointment shall be terminated once the regular
employees resume their duties. It is not in dispute that thereafter a
fresh examination was conducted for the post of Hindi Stenographers
on 24.09.1988 and Respondent Nos. 1 to 3 were appointed.
However, thereafter though the services of the appellants were
required to be terminated on the Respondent Nos. 1 to 3 being
selected for the post of Hindi Stenographers, pursuant to the
communication dated 22.05.1990 by the Deputy Registrar, High Court
by which it was directed that the approved list of ex-stenos and Hindi
Stenos dated 14.07.1987 be prepared and their names be arranged
in the order of merit, and though the appellants failed to clear the
speed test for the post of Hindi Stenographers as required as per
Rule 5(c) of the Rules, 1947, the District Judge, Moradabad
appointed the appellants and terminated the services of Respondent
Nos. 1 to 3. The appointment of the appellants and the termination of
the Respondent Nos. 1 to 3 has been rightly quashed and set aside
by the High Court, firstly on the ground that in the year 1990 no
direction could have been issued to make the appointment on the
basis of the select list dated 14.07.1987 as the select list dated
14.07.1987 expired and came to an end on 13.07.1988; secondly, the
appellants failed to clear/pass the speed test for the post of Hindi
Stenographers; thirdly, the appellants were never appointed after
following due procedure of selection, against which the Respondent
Nos. 1 to 3 were selected and appointed pursuant to the fresh
examination which was conducted for the post of Hindi
Stenographers on 24.09.1988 and thereafter they were appointed
after following due procedure of selection and that the appointment of
the appellants in the year 1987 was against the leave vacancies and
in the appointment order itself it was specifically mentioned that their
appointment shall be terminated once the regular employees resume
their duties. Considering the aforesaid facts and circumstances, the
High Court has rightly quashed and set aside the appointment of the
appellants and has rightly quashed and set aside the orders
terminating the services of Respondent Nos. 1 to 3 who were
selected after due process and in accordance with the Rules, 1947.
The submission on behalf of the appellants that the
Respondent Nos. 1 to 3 were appointed in the year 2012 is factually
incorrect as in the year 1988 itself Respondent Nos. 1 to 3 were
appointed and their services were terminated in the year 1990 by the
District Judge, Moradabad and the appellants were appointed and
thereafter pursuant to the interim orders passed by the Division
Bench of the High Court, the Respondent Nos. 1 to 3 were also
accommodated in the year 2012. Therefore, as such the Respondent
Nos. 1 to 3 have suffered for the period between 1992 - 2012 for no
fault of them and though they were selected and appointed after
following due procedure of selection. In fact, the appellants have
gained illegally and they were continued in service pursuant to the
interim order of the High Court. Once the appellants continued on the
aforementioned post pursuant to the interim order passed by the High
Court and their appointment is subsequently held to be bad in law
and not only that their continuation in service is also held to be bad in
law, thereafter they cannot be permitted to submit that as they worked
for a long time their services should be protected, though their
appointments are not legally tenable. Once their appointments are
held to be illegal and it is held that they have no right to continue on
the post to be occupied by other eligible candidates, the necessary
consequences shall follow. Once the Respondent Nos.1 to 3 are to
be accommodated and/or appointed who were selected after due
process and the appointment of the appellants were on leave
vacancies with a specific condition in the appointment order that their
appointment shall be terminated once the regular employees resume
their duties, necessary consequences shall follow and the services of
the appellants are to be terminated and/or put to an end.
Unfortunately, it has so happened that after 2012 on the post of Hindi
Stenographers the appellants as well as Respondent Nos. 1 to 3 are
working, which is not permissible. There cannot be appointment of
two persons on one sanctioned post. Otherwise, there will be
financial burden on the State of two persons on one sanctioned post.
Under the circumstances the prayer of the appellants to continue
them in services and to pay them pensionary benefits etc. also
cannot be granted. Appellants are not entitled to any relief. In fact,
they are benefitted by continuing in the service after 1988 though
their services were required to be put to an end after the fresh
selection in the year 1988 and after the Respondent Nos. 1 to 3 were
appointed after following due process and procedure as per Rules,
In view of the above and for the reasons stated hereinabove,
the present appeal fails and the same deserves to be dismissed and
is accordingly dismissed.
There shall be no order as to costs.
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The Supreme Court on Saturday (13th November) held that two persons cannot be appointed on one sanctioned post as the same would impose a serious financial burden on the State. A bench comprising Justices M.R. Shah and A.S. Bopanna dismissed a petition filed by the appellants, three Stenographers in the judgeship of Moradabad, whose appointments had been initially quashed by the...
The Supreme Court on Saturday (13th November) held that two persons cannot be appointed on one sanctioned post as the same would impose a serious financial burden on the State.
A bench comprising Justices M.R. Shah and A.S. Bopanna dismissed a petition filed by the appellants, three Stenographers in the judgeship of Moradabad, whose appointments had been initially quashed by the Single Judge of the Allahabad High Court and later affirmed by the Division Bench.
Factual Background
The matter goes as far back as 1987 when in the judgeship of Moradabad a competitive examination was conducted for the post of English and Hindi Stenographers. The appellants participated for the post of English Stenographers and got selected for the same as per the list prepared on 14.07.1987.
However, there were no vacancies for the English Stenographers and the refore, no appointments ensued. As per Rule 14(3) of the Subordinate Civil Courts Ministerial Establishment Rules, 1947 ("Rules"), which requires the list to remain valid for one year, the concerned list came to an end on 13.07.1988. In the meanwhile, there were some leave vacancies in the post of Hindi Stenographers and the appellants were temporarily appointed to fill up these vacancies for a period from 14.10.1987 to 15.11.1987 with a specific condition that they would be terminated once the regular employees resume their duties.
Eventually, fresh examinations for the post of Hindi Stenographers were conducted and fresh appointments were made. Therefore, it was time for the appellants, who were appointed in leave vacancy posts to be terminated. A representation was made by the appellants to the District Judge, Moradabad, who then forwarded his comments to the Deputy Registrar, High Court. Vide order dated 22.05.1990, the District Judge was directed that a list of ex-stenos, who were approved on 14.07.1987 be prepared and their names be arranged in the order of merit. In the meanwhile, a typing/speed test was conducted for the post of Hindu Stenographers, but the appellants could not qualify as per Rule 5(c).
On 05.06.1990, without any further intimation of the result of the speed test to the Deputy Registrar, High Court, the District Judge, Moradabad terminated the service of the new appointees (Respondent No. 1 to 3 herein) and appointed the appellants instead, which was subsequently were challenged before the Single Judge, who therein quashed and set aside the appointment of the appellants.
Contentions raised by the appellants
The appellants argued that their appointments were approved by the Allahabad High Court vide order dated 22.05.1990 and accordingly, appointment letters were issued by the District Judge, Moradabad. They also averred that the one year rule under Rule 14(3) does not apply to the recruitment list on merit under Rule 11, but only to the reserved category candidates under Rule 12. Referring to the judgment of the High Court, the appellants submitted that it had erred in not considering that the appellants had continuously worked for the judgeship of Moradabad for more than 30 years. Contending that the appointment of Respondents No. 1 to 3 had become age barred, the appellants argued that the said appointments were made by the interim order of the High Court, almost 24 years after the actual selection list was prepared on 29.11.1988.
Contentions raised by the Allahabad High Court
The appellants were never appointed to the post of Hindi Stenographers after following due selection procedure. The Respondent No. 1 to 3 were rightfully appointed on the substantive sanctioned posts. Since the appellants' appointment was temporary in nature, once selected the Respondent No.1 to 3 were to take up the posts.
The Respondent No. 1 to 3 adopted the submissions made by the Allahabad High Court.
Findings of the Supreme Court
The Supreme Court noted that the applicants had never applied for the post of Hindi Stenographers. The initial application of the appellants were only for the post of English Stenographer. On perusal of the appointment letters of the appellants, the Court observed that the appellants were appointed temporarily against leave vacancies in the post of Hindi Stenographers, and were to be terminated once the regular employees resumed duties. The Court pointed out that instead of being terminated, the appellants had remained in service and had indeed unjustly benefitted.
The Supreme Court accepted the three grounds enunciated by the High Court for quashing and setting aside appointment of the appellants:
In the year 1990 no appointments could have been made based on the selection list of 14.07.1987 as the same had expired on 13.07.1988;The appellants did not pass the speed test for Hindi Stenographers;Unlike the Respondents No. 1 to 3, the appellants were never appointed to the post of Hindi Stenographers following due selection process.
The Supreme Court pointed out that the submission made by the appellants that the appointment of the Respondent No. 1 to 3 was effective in 2012 by the interim order of the Division Bench was incorrect as in 1988 itself the said respondents were appointed after following the selection procedure. However, they were unjustly terminated in 1990 when the appellants were appointed.
The submission of the appellant that they had worked for almost 30 years was not acceptable to the Apex Court, given the fact that they had illegally continued service pursuant to the interim order of the High Court, which accommodated Respondent No. 1 to 3 in the same post. The Supreme Court further noted that post 2012 both the appellants and the Respondent No. 1 to 3 were working on the post of Hindi Stenographers, which is impermissible. The Court observed -
"There cannot be appointment of two persons on one sanctioned post. Otherwise there will be a financial burden on the State of two persons on one sanctioned post. Under the circumstances the prayer of the appellants to continue them in services and to pay them pensionary benefits etc. also cannot be granted. Appellants are not entitled to any relief."
[Case title: Wahab Uddin And Ors. v. Km. Meenakshi Gahlot And Ors. Civil Appeal No. 6477 of 2021]
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Through: Mr. N.S. Bajwa, APP for State with
1. This petition under Section 482 Cr.P.C. has been filed for quashing of
FIR No.003/2016 for offences under Sections 406/498A/354/377/34 IPC,
registered at Police Station Crime Women Cell, Nanak Pura and the
proceedings emanating therefrom.
2. The principal ground on which the petition has been filed is that the
respondent No.2/complainant has settled all her disputes amicably with the
petitioners. The settlement was arrived at between the parties on 18.09.2021.
Copy of the settlement dated 18.09.2021 is annexed with the petition
(Annexure P-2, of the paperbook).
Signed By:HARIOM CrlM.C. 1356/2022 Page 1 of 10
3. As per the settlement dated 18.09.2021, it is agreed between the
parties that husband/petitioner no.1 shall pay lump sum amount of
Rs.74,00,000/- to the wife/respondent no.2 as full and final settlement
towards all claims, Stridhan, child maintenance, compensation, permanent
alimony and child care maintenance towards past, present and future. The
respondent no.2 shall invest out of the aforesaid sum, Rs. 10 lacs in the
name of the minor for his benefit till he attains the age of majority.
3.1 It is agreed between the parties that out of the above settlement
amount of Rs. 74,00,000/- the petitioner no.1 shall pay a sum of
Rs.20,00,000/- at the time of signing of the Settlement Agreement. The DD
No. 465231 dated 18.09.2021 drawn on Yes Bank has been given by the
petitioner to respondent no.2. The petitioner no.1 shall pay Rs. 20,00,000/-
to respondent no.2 at the time of recording of statements of the parties in the
first motion petition under Section 13-B(1) of Hindu Marriage Act which
shall be filed by the parties within ten days from the date of settlement.
Payment of Rs. 20,00,000/- by way of DD/RTGS/NEFT shall be done by the
petitioner no.1 before recording the statements in the second motion and
acknowledgment shall be shared with the respondent no.2. It is agreed
between the parties that petitioner no.1 shall pay Rs. 14,00,000/- to
respondent no.2 by way of demand draft at the time of quashing of the
aforesaid FIR. The petitioner no.1 undertakes to file the petition for
quashing of FIR within 7 days of grant of decree of divorce. In case of
failure of the petitioner no.1 to file quashing petition as aforesaid, he
undertakes to pay the balance amount of Rs. 14,00,000/- within 15 days of
grant of decree of divorce by demand draft.
3.2 It is agreed between the parties that after receipt of the afore-mentioned
Signed By:HARIOM CrlM.C. 1356/2022 Page 2 of 10
amount, respondent no.2 shall have no further claims whatsoever towards
any amount/alimony towards past, present and future maintenance and
accordingly her right towards any alimony past, present, future stands
voluntarily waived.
3.3 The respondent no.2 further agrees to give no-objection for quashing
of the FIR.
3.4 The parties shall jointly file an application seeking waiver of the
statutory 6 months period within 10 days of recording of statement in the
first motion. The parties shall duly cooperate and sign all necessary papers
for the same. The second motion petition shall be filed within 10 days from
the order of waiver of the said statutory period by the Court.
3.5 It has been agreed that all the documents and trophies of the petitioner
no.1, if any, shall be returned by the respondent no.2 and the petitioner no.1
shall return all the documents/testimonials to the respondent no.2, if any,
more particularly, the relieving letter/experience certificate of American
Express and CTET-JULY 2013 marks statement before recording of the
second motion at a mutually convenient date and time.
3.6 It has been agreed that both the parties shall close the joint bank
account number 52062150000810 with Punjab National Bank (earlier OBC).
The petitioner no.1 shall sign the joint application for closure of the account
and give the same to respondent no.2 at the time of recording of the
statement in the joint petition u/S 13-B(1) of Hindu Marriage Act. Should
the bank require the personal presence of the petitioner no.1 for the said
purpose, the petitioner no.1 will personally go to the bank for the closure of
the account. The petitioner no.1 agrees that the amount, if any, in the joint
account may be taken by the respondent no.2.
Signed By:HARIOM CrlM.C. 1356/2022 Page 3 of 10
3.7 It has been further agreed that the petitioner no.1 shall facilitate
transfer of mobile no. 9811770993 with Vodafone service provided in
favour of respondent no.2, he shall perform all the obligations and
requirements in the said regard as may be required by the service provider
and provide NOC, ID etc. at the time of recording the statement under
Section 13B(1) of the Hindu Marriage Act.
3.8 It is agreed between the parties that the custody and guardianship of
the minor child Advik, aged about 9 years shall remain with respondent no.2
who shall be the sole custodian of the child. The petitioner may have a
video call with the child for one hour on the birthday of the child or may,
alternatively, meet the child for one hour in the week, the child has his
birthday, subject to, the convenience of the child. The petitioner and
respondent no.2 shall make arrangement on whatsapp.
3.9 It has been further agreed that both the parties shall
withdraw/cooperate in quashing all their cases filed in different courts,
police stations or anywhere else against each other and their family
members.
3.10 It is agreed between the parties that after this settlement, both the
parties shall be left with no claims against each other and their family
members of any nature whatsoever.
3.11 Both the parties agree and undertake that upon entering agreement, no
other legal action/complaint/case shall be initiated by either of them against
the other and their family members.
4. The respondent No.2/complainant has also filed affidavit (as
Annexure P-7 affirming the fact that her claims and grievances against the
petitioners in the above-mentioned FIR stands settled. It is also stated that
Signed By:HARIOM CrlM.C. 1356/2022 Page 4 of 10
the complainant does not have any objection if the FIR against the
petitioners is quashed as she has already settled her claims due to her.
5. It is to be noted here that apart from usual Sections invoked in
matrimonial disputes, i.e., Section 406/498A/34 IPC, in the present FIR,
Sections 354/377 IPC have also been invoked. Now the matter has been
settled between the parties and this Court has to take a call as to whether the
FIR in question can be quashed. A co-ordinate bench presided over by HMJ
Subramonium Prasad in CRL.M.C. No. 599/2021 tilted ‘Rifakat Ali & Ors
Vs. State & Anr.’ decided on 26.02.2021 has taken the following view on a
quashing petition filed under the similar circumstances:
“The power of the High Courts to quash FIRs while exercising its
powers under Section 482 CrPC even for offences which are not
compoundable under Cr.PC has been settled in a number of
judgments. In Gian Singh v. State of Punjab & Anr. reported as
(2012) 10 SCC 303, the Supreme Court has observed as under:
"61. 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. : (i) to secure the ends of justice, or
(ii) to prevent abuse of the process of any court. In what cases
power to quash the criminal proceeding or complaint or FIR may
be exercised where the offender and the victim have settled their
dispute would depend on the facts and circumstances of each case
and no category can be prescribed. However, before exercise of
such power, the High Court must have due regard to the nature
and gravity of the crime. Heinous and serious offences of mental
depravity or offences like murder, rape, dacoity, etc. cannot be
fittingly quashed even though the victim or victim's family and the
offender have settled the dispute. Such offences are not private in
Signed By:HARIOM CrlM.C. 1356/2022 Page 5 of 10
nature and have a serious impact on society. Similarly, any
compromise between the victim and the offender in relation to the
offences under special statutes like the Prevention of Corruption
Act or the offences committed by public servants while working in
that capacity, etc.; cannot provide for any basis for quashing
criminal proceedings involving such offences. But the criminal
cases having overwhelmingly and predominatingly civil flavour
stand on a different footing for the purposes of quashing,
particularly the offences arising from commercial, financial,
mercantile, civil, partnership or such like transactions or the
offences arising out of matrimony relating to dowry, etc. or the
family disputes where the wrong is basically private or personal in
nature and the parties have resolved their entire dispute. In this
category of cases, the High Court may quash the criminal
proceedings if in its view, because of the compromise between the
offender and the victim, the possibility of conviction is remote and
bleak and continuation of the criminal case would put the accused
to great oppression and prejudice and extreme injustice would be
caused to him by not quashing the criminal case despite full and
complete settlement and compromise with the victim. In other
words, the High Court must consider whether it would be unfair
or contrary to the interest of justice to continue with the criminal
proceeding or continuation of the criminal proceeding would
tantamount to abuse of process of law despite settlement and
compromise between the victim and the wrongdoer and whether to
secure the ends of justice, it is appropriate that the criminal case
is put to an end and if the answer to the above question(s) is in the
affirmative, the High Court shall be well within its jurisdiction to
quash the criminal proceeding."
After relying on Gian Singh (supra), this position has been laid
down in Narinder Singh & Ors. v. State of Punjab & Anr. reported
as (2014) 6 SCC 466, wherein the Supreme Court has observed as
"29.1. Power conferred under Section 482 of the Code is to be
distinguished from the power which lies in the Court to compound
the offences under Section 320 of the Code. No doubt, under
Section 482 of the Code, the High Court has inherent power to
quash the criminal proceedings even in those cases which are not
Signed By:HARIOM CrlM.C. 1356/2022 Page 6 of 10
compoundable, where the parties have settled the matter between
themselves. However, this power is to be exercised sparingly and
with caution.
29.2. When the parties have reached the settlement and on that
basis petition for quashing the criminal proceedings is filed, the
guiding factor in such cases would be to secure: (i) ends of justice,
or (ii) to prevent abuse of the process of any court While exercising
the power the High Court is to form an opinion on either of the
aforesaid two objectives.
29.3. Such a power is not to be exercised in those prosecutions
which involve heinous and serious offences of mental depravity or
offences like murder, rape, dacoity, etc. Such offences are not
private in nature and have a serious impact on society. Similarly,
for the offences alleged to have been committed under special
statute like the Prevention of Corruption Act or the offences
committed by public servants while working in that capacity are not
to be quashed merely on the basis of compromise between the
victim and the offender.
29.4. On the other hand, those criminal cases having
overwhelmingly and predominantly civil character, particularly
those arising out of commercial transactions or arising out of
matrimonial relationship or family disputes should be quashed
when the parties have resolved their entire disputes among
themselves.
29.5. While exercising its powers, the High Court is to examine as
to whether the possibility of conviction is remote and bleak and
continuation of criminal cases would put the accused to great
oppression and prejudice and extreme injustice would be caused to
him by not quashing the criminal cases."
In State of M.P. v. Laxmi Narayan & Ors. reported as (2019) 5
SCC 688, the Supreme Court has observed as under :
"15. Considering the law on the point and the other decisions of this
Court on the point, referred to hereinabove, it is observed and held
15.1. That the power conferred under Section 482 of the Code to
quash the criminal proceedings for the non-compoundable offences
under Section 320 of the Code can be exercised having
Signed By:HARIOM CrlM.C. 1356/2022 Page 7 of 10
overwhelmingly and predominantly the civil character, particularly
those arising out of commercial transactions or arising out of
matrimonial relationship or family disputes and when the parties
have resolved the entire dispute amongst themselves;
15.2. Such power is not to be exercised in those prosecutions which
involved heinous and serious offences of mental depravity or
offences like murder, rape, dacoity, etc. Such offences are not
private in nature and have a serious impact on society;
15.3. Similarly, such power is not to be exercised for the offences
under the special statutes like the Prevention of Corruption Act or
the offences committed by public servants while working in that
capacity are not to be quashed merely on the basis of compromise
between the victim and the offender;"
A perusal of the three judgments show that the Supreme Court has
consistently held that the power under Section 482 CrPC should not
be used for quashing heinous and serious offences of mental
depravity or offences like murder, rape, dacoity etc. since these
offences are not private in nature and have a serious impact in
society. An offence under Section 377 IPC is a henious offence and
points to the mental depravity of the accused and hence ought not to
be quashed by the High Court on the basis of compromise by
exercising its jurisdiction under Section 482 CrPC.
The present case arises out of matrimonial dispute and the
allegation has been made by the wife against the husband. The
parties have decided to part ways and move ahead in their lives
without having any acrimony against each other. In the facts and
circumstances of the case, this Court is inclined to exercise its
powers under Section 482 CrPC even for an offence under Section
377 IPC on the ground that the dispute is private in nature.
The learned counsel for the petitioners has placed reliance on
orders of this Court in CRL.M.C.830/2019 titled as Dinesh Kumar
& Ors. v. State & Anr., CRL.M.C.1613/2019 titled as Anmol Katyal
& Ors. v. State (NCT of Delhi) & Anr., CRL.M.C. 5216/2018 titled
as Gajender Singh & Ors. v. State (NCT of Delhi) & Ors. and
CRL.M.C. 4117/2018 titled as Joginder Singh Bote & Ors. v. NCT
of Delhi & Anr. In all these cases wife has levelled allegations on
the husband committing an offence under Section 377 IPC. This
Court has exercised its jurisdiction under Section 482 CrPC and
Signed By:HARIOM CrlM.C. 1356/2022 Page 8 of 10
has quashed the FIRs on the basis of the compromise entered into
between the husband and wife.
It is made clear that this Court is exercising its powers under
Section 482 CrPC to quash an offence of Section 377 IPC on the
ground that the parties have compromised the matter with each
other only because it arises out of a matrimonial dispute, the
allegation has been levelled by wife against her husband of
committing an offence under Section 377 IPC and the parties have
decided to move ahead in life.”
6. So, the view of the co-ordinate bench is that in matrimonial cases,
where settlement has taken place, even the offence under Section 377 IPC
can be compromised and FIR can be quashed as parties have to move ahead
in life. I concur with the said view. Keeping in view the fact that parties
have settled all their disputes, hence the offence under Section 354 IPC is
also allowed to be quashed to put an end to all bickerings between the
parties and allow them to begin a new chapter of their lives.
7. Today, parties are present in the Court and have been identified by the
Investigating Officer. The remaining payment of Rs.8,75,000/- is made by
way of a DD No. 122692 dated 05.05.2022 drawn on Axis Bank in favour of
respondent No. 2. The respondent No.2/complainant states that she has
settled all her matrimonial disputes with the petitioners out of her own free
will, without pressure, coercion or undue influence and states that she does
not want to pursue with the present case any further and requests that the
present FIR and the proceeding emanating therefrom may be quashed.
8. The parties understand the implication of the present proceedings. In
view of the settlement arrived at between the parties, this Court is of the
opinion that no useful purpose will be served in continuing with the present
proceedings. Resultantly, FIR No.003/2016 for offences under Sections
Signed By:HARIOM CrlM.C. 1356/2022 Page 9 of 10
406/498A/354/377/34 IPC, registered at Police Station Crime Women Cell,
Nanak Pura and the proceedings emanating therefrom are hereby quashed.
The parties shall remain bound by the terms of the settlement and the
undertakings given to the Court.
9. The petition stands disposed of in above terms.
Signed By:HARIOM CrlM.C. 1356/2022 Page 10 of 10
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The Delhi High Court has observed that in matrimonial cases where settlement has taken place, offence under sec. 377 of Indian Penal Code can be compromised and FIR can be quashed as parties have to move ahead in life. Justice Talwant Singh thus concurred with the decision of a coordinate bench in Rifakat Ali & Ors v. State & Anr. decided on February 26, 2021 wherein the Court had...
The Delhi High Court has observed that in matrimonial cases where settlement has taken place, offence under sec. 377 of Indian Penal Code can be compromised and FIR can be quashed as parties have to move ahead in life.
Justice Talwant Singh thus concurred with the decision of a coordinate bench in Rifakat Ali & Ors v. State & Anr. decided on February 26, 2021 wherein the Court had quashed an FIR under sec. 377 of IPC on the ground that the parties had compromised the matter with each other only because it arose out of a matrimonial dispute.
"So, the view of the co-ordinate bench is that in matrimonial cases, where settlement has taken place, even the offence under Section 377 IPC can be compromised and FIR can be quashed as parties have to move ahead in life. I concur with the said view," the Court observed in a ruling dated September 6.
The Court thus quashed an FIR registered under sec. 406, 498A, 354, 377 and 34 of IPC filed by a wife at Police Station Crime Women Cell, Nanak Pura.
The husband had approached the High Court seeking quashing of the FIR on the ground that the wife had settled all her disputes amicably with the husband and in laws and that a settlement was arrived at between the parties in September last year.
As per the settlement agreement, it was agreed that the husband shall pay lump sum amount of Rs.74,00,000 to the wife as full and final settlement towards all claims, Stridhan, child maintenance and permanent alimony whereas the wife shall invest out of the aforesaid sum, Rs. 10 lakhs in the name of their minor child for his benefit till he attains the age of majority.
It was also agreed that the custody and guardianship of the minor child shall remain with wife who shall be the sole custodian of the child. It was agreed that the husband may have a video call with the child for one hour on his birthday or may alternatively meet the child for one hour in the week.
"Keeping in view the fact that parties have settled all their disputes, hence the offence under Section 354 IPC is also allowed to be quashed to put an end to all bickerings between the parties and allow them to begin a new chapter of their lives," the Court said.
While quashing the FIR, the Bench said that the parties shall remain bound by the terms of the settlement and the undertakings given to the Court.
The plea was accordingly disposed of.
Case Title: ANEESH GUPTA & ORS. v. STATE OF NCT OF DELHI & ANR.
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The petitioner is challenging the order dated 23.03.2021
(Annexure A-1) passed in Appeal Case No.48/2021/Registration by the
Appellate Authority-cum-Joint Commissioner, Goods and Services Tax,
2. The brief facts shows that petitioner’s company was registered
under the Goods and Services Tax Act, 2017 and was alloted the registration
No.23AAICR6172RIZP. However, on account of non-filing of return, the
GST number allotted to the petitioner was cancelled. Against cancellation,
the petitioner preferred an appeal before the respondent No.4. The said
appeal has been dismissed vide order dated 23.03.2021, which is being
sought to be impugned in the present petition.
3. No one appeared even in the second round when the case was
4. Learned counsel for respondents submits that registration of the
petitioner was cancelled on 19.06.2019, against which the petitioner herein
preferred an appeal on 30.01.2021 and then the appeal was taken up on
16.03.2021, the Appellate Authority taking into consideration of provisions
under Section 107 of GST Act, dismissed the appeal as time barred.
5. We have heard learned counsel for respondents and perused the
records produced by respondents.
6. Perusal of the records shows that the order of cacellation of
registration was passed way back on 19.06.2019 and the appeal was
preferred by the petitioner on 30.01.2021. Thus, the appeal was preferred
almost after one and half years from the date of order of cancellation of
6.1 Section 107 (1) of GST Act provides that an appeal can be
preferred within a period of three (3) months from the date of the order,
while Section 107 (4) of the Act stipulates that the Appellate Authority, if
satisfied that the appellant was prevented by sufficient cause from presenting
the appeal within the period of limitation of 3 months, allow it to be
presented within a further period of one month.
6.2. Thus, the total period during which the appeal ought to have been
preferred was four months from the date of cancellation of registration dated
19.06.2019. However, despite lapse of four months, the appeal was not
preferred by the appellant/petitioner, nor even in the memo of appeal,
sufficient reasons for not filing the appeal in time were disclosed. There was
unexplained delay of 1 ½ years in filing the appeal.
7. Thus, in our considered view, the respondent No.4 has not
committed any error while dismissing the appeal preferred by the present
petitioner and therefore, we do not find any substance in the present petition.
Accordingly, the same stands dismissed.
|
The Madhya Pradesh High Court bench of Justice Sheel Nagu and Justice Maninder S. Bhatti has upheld the cancellation of GST registration as there was a delay of 18 months in filing the appeal without reasonable justification.
The petitioner company/assessee was registered under the Goods and Services Tax Act, 2017. On account of non-filing of a return, the GST number allotted to the petitioner was cancelled. Against cancellation, the petitioner preferred an appeal. The appeal was dismissed.
The assessee has challenged the order cancelling the GST registration.
The respondent/department submitted that the registration of the petitioner was cancelled on 19.06.2019, against which the petitioner herein preferred an appeal on 30.01.2021. The appeal was taken up on 16.03.2021. The Appellate Authority, taking into consideration provisions under Section 107 of the GST Act, dismissed the appeal as time barred.
Section 107(1) of the GST Act provides that an appeal can be preferred within a period of three (3) months from the date of the order. Section 107 (4) stipulates that the Appellate Authority, if satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the period of limitation of 3 months, may allow it to be presented within a further period of one month.
The court observed that the order of cancellation of registration was passed way back on 19.06.2019 and the appeal was preferred by the petitioner on 30.01.2021. Thus, the appeal was preferred almost one and a half years after the date of the order of cancellation of registration.
The court held that the total period during which the appeal ought to have been preferred was four months from the date of cancellation of registration. However, despite a lapse of four months, the appeal was not preferred by the petitioner, and even in the memo of appeal, sufficient reasons for not filing the appeal in time were disclosed. There was an unexplained delay of one and a half years in filing the appeal.
Case Title: M/s Rajdhani Security Force Pvt. Ltd Versus UOI
Dated: 25.04.2022
Counsel For Petitioner: None
Counsel For Respondent: Advocate Ankit Agarwal
|
1. The present appeal filed by the appellants –
Distribution Companies (hereinafter referred to as “the
appellants DISCOMS”) challenges the judgment and order
dated 7th January, 2020, passed by the Appellate Tribunal for
Electricity, New Delhi (hereinafter referred to as “the APTEL”)
in Appeal No. 41 of 2018, thereby allowing the appeal filed by
the respondent No.1 – M/s Hinduja National Power
Corporation Limited (hereinafter referred to as “HNPCL”). By
the impugned judgment and order, the APTEL has directed
(hereinafter referred to as “the State Commission”) to dispose
of O.P. No.21 of 2015 filed by HNPCL for determination of
capital cost and O.P. No.19 of 2016 filed by the appellants –
DISCOMS for approval of amended and restated Power
Purchase Agreement (hereinafter referred to as “PPA”)
(Continuation Agreement) on merits.
2. The facts, in brief, giving rise to the present appeal
3. The erstwhile Andhra Pradesh State Electricity Board
(hereinafter referred to as “APSEB”) entered into a
Memorandum of Understanding (hereinafter referred to as
“MoU”) with HNPCL on 17th July, 1992. As per the said MoU,
APSEB transferred all the licenses, approvals, clearance and
permits, fuel linkage, water required for establishment of the
power project at Visakhapatnam in the erstwhile State of
Andhra Pradesh, to HNPCL to generate and supply the
electricity to APSEB.
4. An initial PPA was entered into between APSEB and
HNPCL on 9th December, 1994. On 25th July, 1996, the
Central Electricity Regulatory Commission (CERC) granted a
Techno Economic Clearance for the power project for an
estimated cost of Rs.4628.11 crores (Rs. 4.45 crores per MW).
5. Owing to certain change in conditions, the parties
agreed to amend the initial PPA. Accordingly, an Amended
and Restated PPA dated 15th April, 1998, was entered into
between APSEB and HNPCL. Between the years 1998 and
2007, the Amended and Restated PPA, for sale of power by
HNPCL to APSEB, was not implemented. Subsequently, in
the year 2007, HNPCL approached the Government of Andhra
Pradesh to revive the power project mainly structuring it as a
merchant plant, offering 25% of the power generated to the
State and balance 75% power to third parties. However, it
appears that there were negotiations between the parties, and
the State Government had offered to purchase 100% power
generated from the plant of HNPCL and that HNPCL had
agreed to it. The same would be clearly evident from the
material placed on record, to which we will be referring
6. The material placed on record would reveal that in
the year 20112012, the Central Power Distribution Company
of Andhra Pradesh Limited (hereinafter referred to as
“APCPDCL”) for and on behalf of four Distribution Companies
of Andhra Pradesh (hereinafter referred to as “APDISCOMS”)
had initiated the process for procurement of power under
Case1 long term bidding route, to meet the base load
requirements of APDISCOMS from the years 20142015
onwards. In the said bidding process, HNPCL participated
and had successfully emerged as the second lowest bidder (L
2 bidder). After the completion of the bidding process,
APCPDCL had filed O.P. No.55 of 2013 before the State
Commission for approval of the tariffs emerged in the said
bidding process. However, the State Level Expert Committee
for evaluation of Case1 bidding (hereinafter to as “Bid
Evaluation Committee”) in its meeting dated 28 th September,
2012, had noted that, the State Government had informed
that the entire capacity of HNPCL was encumbered to the
State of A.P./APDISCOMS and was not available for
consideration under the tender. Accordingly, the Bid
Evaluation Committee had discarded HNPCL from the
bidding process.
7. In the meanwhile, there was a correspondence
between HNPCL and the State Government in the year 2012,
with regard to the steps to be taken for the development of
the project and requesting State support for scheduled
commissioning of the project. In this regard, HNPCL
addressed a letter dated 6th August, 2012 to the then Hon’ble
Chief Minister of the erstwhile State of Andhra Pradesh,
thereby conveying its intention to develop the project and
seeking State’s support. Vide communication dated 26 th
December, 2012, the State Government addressed a letter to
HNPCL accepting its proposal and agreeing to purchase 100%
power from the project of HNPCL as per the Amended and
Restated PPA. Vide communication dated 14 th January,
2013, HNPCL agreed to supply 100% power to the State
Distribution Companies at the tariff to be determined by the
8. The HNPCL vide communication dated 16 th May,
2013, addressed to the appellants – DISCOMS, inter alia,
provided therein the details with regard to the estimated
capital cost of the power project to the tune of Rs.6098 crores
as against Rs.5545 crores that was given in June, 2010. The
appellants – DISCOMS vide communication dated 17 th May,
2013, expressed their reservations about the capital cost
furnished by HNPCL and reserved their rights to contest the
same before the State Commission.
9. On the same day, i.e., 17th May, 2013, a
Memorandum of Agreement (hereinafter referred to as “MoA”)
was entered into between the APDISCOMS and HNPCL,
thereby deciding to continue the Amended and Restated PPA
dated 15th April, 1998, on the terms and conditions set out
therein. In pursuance of the aforesaid MoA, a Fuel Supply
Agreement (“FSA” for short) dated 26 th August, 2013, came to
be entered between HNPCL and Mahanadi Coalfield Limited
for coal supply for the said project.
10. On 12th March, 2014, a petition being O.P. No.21 of
2015, came to be filed by HNPCL before the State
Commission for determination of capital cost for the project
and for determination of the tariff for such generation and
sale of electricity by HNPCL to APDISCOMS.
11. Thereafter, on 2nd June, 2014, the Andhra Pradesh
State Reorganisation Act, 2014, (hereinafter referred to as
“Reorganisation Act”) came into effect vide which the
erstwhile State of Andhra Pradesh was bifurcated into two
States, i.e., the State of Andhra Pradesh and the State of
12. On 28th July, 2015, HNPCL filed an Addendum
Application in O.P. No.21 of 2015, thereby enhancing the
capital cost of the project to Rs.8,087 crore. This capital cost
was disputed by the APDISCOMS.
13. On 11th January, 2016, the first unit of the Power
project (520 MW) was declared Commercial Operation Date
(COD) by HNPCL. Vide interim order dated 1 st March, 2016,
the State Commission fixed the provisional tariff at the rate of
Rs.3.61 per unit for supply of electricity by HNPCL to the
14. On 30th March, 2016, HNPCL filed I.A. No.5 of 2016
in O.P. No.21 of 2015, for payment of variable charges and
fixed charges at Rs.1.80 per unit and Rs.2.16 per unit
aggregating to Rs.3.96 per unit at 80% availability.
15. On 28th April, 2016, distinct Power Distribution
Corporations were created including the appellants –
DISCOMS i.e. Southern Power Distribution Power Company
Limited of Andhra Pradesh (“APSPDCL”) and Eastern Power
Distribution Company of Andhra Pradesh (“APEPDCL”). These
corporations succeeded the APSEB, which had entered into
the Amended and Restated PPA dated 15 th April, 1998 with
HNPCL. As such, the Continuation Agreement to the
Amended and Restated PPA was entered into between the
appellants – DISCOMS and HNPCL on 28th April, 2016.
16. On 11th May, 2016, the appellants – DISCOMS filed a
petition being O.P. No.19 of 2016 before the State
Commission for approval of the Continuation Agreement
dated 28th April, 2016, read with the Amended and Restated
PPA dated 15th April, 1998.
17. The State Government vide order dated 1 st June,
2016, accorded approval for purchase of 100% power from
18. On 3rd July, 2016, the second unit of the HNPCL (520
MW) came to be declared COD by HNPCL.
19. Vide order dated 6th August, 2016, the State
Commission redetermined the provisional tariff at the rate of
Rs.3.82 per unit, payable by the appellants – DISCOMS for
the power supplied by HNPCL.
20. On 15th May, 2017, the State Commission after
hearing the parties on merits, reserved the judgment in both
the petitions, i.e., in O.P. No.19 of 2016 and O.P. No.21 of
21. It is further to be noted that in the appeal arising out
of interlocutory proceedings, the APTEL vide order dated 1 st
June, 2017, directed the State Commission to dispose of O.P.
No.19 of 2016 and O.P. No.21 of 2015 on or before 14 th
August, 2017. The said period came to be extended from
time to time, the last of such extension was granted till 31 st
January, 2018, vide order dated 10 th January, 2018.
22. Thereafter, on 4th January, 2018, the appellants –
DISCOMS filed two Interlocutory Applications, viz., (i) I.A.
No.1 of 2018 in O.P. No.19 of 2016 for withdrawal of O.P.
No.19 of 2016 together with initial PPA; and (ii) I.A. No.2 of
2018 in O.P. No.21 of 2015 for disposal of O.P. No.21 of
23. Vide order dated 31st January, 2018, the State
Commission allowed withdrawal of O.P. No.19 of 2016 filed
by the appellants – DISCOMS seeking approval of PPA and
consequentially dismissed O.P. No.21 of 2015 filed by HNPCL
seeking determination of tariff.
24. Aggrieved by the same, an appeal being Appeal No.41
of 2018, came to be filed by HNPCL before the APTEL. The
said appeal came to be admitted by the APTEL vide order
dated 26th February, 2018. The APTEL vide order dated 16 th
March, 2018, passed in I.A. No.211 of 2018 in the said
appeal, as an ad hoc arrangement, directed the parties to
maintain status quo as prevalent prior to 31 st January, 2018.
This was without prejudice to the rights and contentions of
the parties in the main appeal, i.e., Appeal No.41 of 2018.
25. It is also to be noted that the order dated 16 th March,
2018, passed by the APTEL in I.A. No.211 of 2018 in Appeal
No.41 of 2018, came to be challenged by the appellants –
DISCOMS before the High Court of Andhra Pradesh by filing
Writ Petition being Writ Petition No.10814 of 2018. Another
writ petition being Writ Petition No.13689 of 2018 came to be
filed by the appellants – DISCOMS challenging the order of
the APTEL dated 26th February, 2018, admitting the appeal
filed by HNPCL. The said writ petitions came to be dismissed
by the High Court of Andhra Pradesh vide order dated 2 nd
26. In the meantime, on 16th April, 2018, HNPCL had
filed an Execution Petition being Execution Petition No.3 of
2018 before the APTEL seeking execution of the order dated
16th March, 2018, passed by the APTEL in I.A. No.211 of
2018 in Appeal No.41 of 2018. Certain directions were
passed by the APTEL in the said Execution Petition vide order
27. The appellants – DISCOMS had also challenged the
order dated 16th March, 2018, passed by the APTEL, by way
of Civil Appeal No.5772 of 2018 before this Court. This Court
vide order dated 4th June, 2018, refused to interfere with the
said order, since it was an interim order. However, this Court
directed the appeal to be decided expeditiously without taking
into consideration the observations, in the order impugned
before it, as conclusive.
28. Vide impugned judgment and order dated 7th
January, 2020, the APTEL allowed the appeal filed by HNPCL
and directed the State Commission to dispose of O.P. No.21
of 2015 and O.P. No.19 of 2016. Being aggrieved thereby, the
appellants – DISCOMS have approached this Court by way of
the present appeal.
29. On 14th July, 2020, this Court passed the following
“The appeal is admitted.
Until further orders, the impugned
order passed by the Appellate Tribunal for
Electricity New Delhi in Appeal No. 41/2019
shall remain stayed.
List for hearing after four weeks.”
30. An application being I.A. No.67061 of 2020 for
modification of the said order dated 14th July, 2020, came to
be filed by HNPCL. This Court vide order dated 21 st August,
2020, modified the order as under:
By order dated 14.07.2020, we directed
the stay of impugned order passed by the
Appellate Tribunal for Electricity, New
Delhi, in Appeal No.41/2019.
We clarify that there shall be no stay of
the order dated 16.03.2018 passed by the
Appellate Tribunal for Electricity, New
Delhi, providing for interim measure. Order
accordingly.
The instant interlocutory application
stands disposed of accordingly”
31. It appears from the record that during the
intervening period, certain Interlocutory Applications have
been filed from both the sides, wherein, the appellants –
DISCOMS are seeking vacation of the interim order dated 21 st
August, 2020, whereas HNPCL is seeking implementation of
the order dated 21st August, 2020. The record would show
that the matter has been adjourned from time to time and
was finally heard by this Court on 20th January, 2022.
32. We have heard Shri C.S. Vaidyanathan, learned
Senior Counsel appearing on behalf of the appellants –
DISCOMS and Dr. Abhishek Manu Singhvi and Shri M.G.
Ramachandran, learned Senior Counsel appearing on behalf
33. Shri C.S. Vaidyanathan, learned Senior Counsel
appearing on behalf of the appellants – DISCOMS, submitted
that the APTEL has grossly erred in holding that the
appellants – DISCOMS were not entitled to apply for
withdrawal of O.P. No.19 of 2016, filed for grant of approval
of the PPA. It is submitted that unless there was prohibition
in law, the appellants were very much within their right to
apply for withdrawal of the O.P. filed by them. In this regard,
Shri Vaidyanathan relied on the following authorities:
(i) Boal Quay Wharfingers Ltd. v. King’s Lynn
(ii) Hulas Rai Baij Nath v. Firm K.B. Bass and
34. Shri Vaidyanathan further submitted that the PPA
was not a valid document until it was approved by the State
Commission under Section 86(1)(b) of The Electricity Act,
1 (1971) 1 WLR 1558 [Court of Appeal, England)
2003 (hereinafter referred to as “the Act of 2003”). He further
submitted that under Section 21 of The Andhra Pradesh
Electricity Reform Act, 1998 (hereinafter referred to as “the
Reform Act”), any agreement relating to generating,
transmitting, distribution or supply of energy without the
previous consent in writing of the Commission was void ab
initio. He submitted that by the impugned judgment, the
APTEL has, in effect, granted HNPCL a decree of specific
performance of a contract, which is void ab initio. He further
submitted that MoA dated 17th May, 2013 and the
Continuation Agreement dated 28th April, 2016 were
themselves contrary to the National Tariff Policy issued under
Section 3 of the Act of 2003 and Regulation 5.2(b) of the
and conditions for determination of tariff for supply of
electricity by a generating company to a distribution licensee
and purchase of electricity by distribution licensees)
Regulation, 2008 (Regulation No.1 of 2008) (hereinafter
referred to as ‘the Tariff Regulations’) issued by the State
Commission. As such, the direction by the APTEL, to
continue to get the electricity supply from HNPCL, being
contrary to the statutory provision, would not be tenable in
35. Shri Vaidyanathan submitted that the present
project does not fall under any of the categories mentioned in
Regulation 5.2 of the Tariff Regulations, which aspect has not
been taken into consideration by the APTEL.
36. Shri Vaidyanathan further submitted that the finding
of the APTEL, that HNPCL had made huge investments on the
basis of the assurance given by the appellants – DISCOMS
that they will purchase 100% power from it, is itself
erroneous. He submitted that the initial project of HNPCL
was lying in cold storage from 1996 to 2007. He submitted
that in the year 2007, HNPCL had attempted to revive the
project as a Merchantpower plant. He submitted that the
project of HNPCL had also attained financial closure in the
year 2010. He further submitted that before the acceptance of
the proposal of HNPCL by the State Government, HNPCL had
already completed upto 93% of the project. It is therefore,
submitted that the finding that huge investments made by
HNPCL were on the basis of the representation by the State
Government is totally erroneous. In any case, he submits,
that the appellants – DISCOMS are independent authorities
and not bound by the decision of the State. He submitted
that under the scheme of the Act of 2003, the appellants –
DISCOMS cannot purchase the power without the prior
approval of the State Commission. He submits that the State
has no role to play in the said matter. It is submitted that, in
any case, the appellants – DISCOMS could not be bound by
the representation made by the State Government.
37. Shri Vaidyanathan further submits that since the re
initiation of the project in the year 2007 by HNPCL is as a
Merchantpower plant, it can very well sell the power to the
third parties in the market. He submitted that however, the
appellants – DISCOMS cannot be compelled to purchase the
power from HNPCL, which will be at a very high price. He
submitted that the capital cost of the project, which was
initially estimated at Rs.4628.11 crores has now gone up to
Rs.8087 crores, which will have a direct effect on the
purchase price of the electricity by the appellants –
DISCOMS. He therefore submits that if the appellants –
DISCOMS are directed to purchase the electricity at such a
high price, the loss would be ultimately to the consumers and
as such, the direction given by the APTEL is also against the
public interest.
38. Per contra, Dr. Abhishek Manu Singhvi and Shri
M.G. Ramachandran, learned Senior Counsel appearing on
behalf of HNPCL submitted that the order passed by the
APTEL is such, which does not at all harm the appellants –
DISCOMS. Dr. Singhvi submitted that by the impugned
order, the APTEL has only directed the State Commission to
dispose of O.P. No.21 of 2015 filed by HNPCL for
determination of capital cost and O.P. No.19 of 2016 filed by
the appellants – DISCOMS for approval of Amended and
Restated PPA on merits.
39. Dr. Singhvi submits that the APTEL has given sound
and elaborate reasons and as such, no interference is
warranted in the present appeal.
40. Shri M.G. Ramachandran, learned Senior Counsel,
submitted that when withdrawal of an application is sought,
which has the effect of frustrating the contract and defeating
the defendant’s right, the appellants cannot be said to have
the right to withdraw the proceedings. He relied on the
following authorities in support of this proposition.
(i) Madhu Jajoo v. State of Rajasthan3
(ii) Kiran Girhotra & Ors. v. Raj Kumar & Ors.4
(iii) M. Radhakrisna Murthy v. Government of
(iv) Smt. Ajita Debi v. Musst. Hossenara Begum6
41. Shri Ramachandran has further submitted that a
right of withdrawal is not an absolute right and that once the
judgment is reserved there cannot be any further application
seeking withdrawal. In support of this proposition, he relied
(i) Arjun Singh v. Mohindra Kumar9
(ii) Bharati Behera v. Jhili Prava Behera10
(iii) Rabia Bi Qasim v. Countrywide Consumer
(iv) Pujya Sindhi Panchayat v. Prof. C.L.
(v) Yash Mehra v. Arundhati Mehra13
(vi) Dharani Sugars and Chemicals Limited v.
42. Dr. Singhvi, learned Senior Counsel, further
submitted that, as a matter of fact, HNPCL desired to start
the project as a Merchantpower plant. It is however, on the
insistence of the State of Andhra Pradesh that HNPCL was
compelled to supply 100% of power generated to the State. He
further submitted that it is evident from the record that
HNPCL had participated in the competitive bidding process
10 W.P. No.26254 of 2013 decided by Orissa High Court on 18.04.2014
14 CRP PD No.3309 to 3312 of 2011 and MP No.1 of 2011 decided by the Madras High Court on
conducted by the APCPDCL. It was the decision of the Bid
Evaluation Committee, to not consider the bid submitted by
HNPCL on the premise that the entire generation capacity of
HNPCL’s project was already encumbered to the State of
Andhra Pradesh under the Amended and Restated PPA of
1998. He further submitted that not only this but the entire
communication placed on record would show that it was the
State Government, which had expressed its interest to
purchase 100% power from HNPCL’s project as per the
Amended and Restated PPA dated 15th April, 1998.
43. He further submitted that on the reorganisation of
the erstwhile State of Andhra Pradesh and its bifurcation into
two States, i.e., the State of Andhra Pradesh and the State of
Telangana; though the State of Telangana had demanded
54% of the power from HNPCL’s project, the Government of
Andhra Pradesh insisted HNPCL to supply 100% of the power
to the State of Andhra Pradesh. He therefore submits that the
APTEL has rightly, on appreciation of the material placed on
record, held that it was on the representation of the State
Government that the HNPCL had made huge investments for
the project. He submitted that the contention of the
appellants – DISCOMS, that if the power generated by the
HNPCL is purchased by them, it will be at a very heavy cost,
is totally erroneous. He submitted that, as a matter of fact,
when as per the interim orders passed by the APTEL and this
Court, the appellants – DISCOMS could have purchased the
power from HNPCL at the rate of Rs.3.82 per unit, the
appellants – DISCOMS are purchasing the power at a much
higher rate from the generators, which were ranked much
below HNPCL in the merit order. He further submits that the
conduct of the appellants – DISCOMS is totally mala fide.
When under the interim orders of this Court as well as of the
APTEL, they were bound to purchase the power at much
lesser price than compared to the rate at which they are
purchasing, they continued to purchase power at much
higher price. He therefore submits that such an act, apart
from being violative of the order of this Court, is contrary to
the public interest.
44. Dr. Singhvi further submits that on account of mala
fide attitude of the appellants – DISCOMS, it is not only
HNPCL, but also the public at large, who are the sufferers.
He submits that huge investment of thousands of crores of
rupees is lying idle. He further submits that apart from
generating employment for more than 1000 people, the
generation project, which is fully operational, would also
provide electricity in the State of Andhra Pradesh. He
submitted that the contention of the appellants – DISCOMS
that they had decided to withdraw the application on account
of huge capital cost and the power being available in excess is
also factually incorrect. He submits that recently the
appellants have entered into an MoU with SEMBCORP
Energy India in December, 2021 for generation of 625 MW of
electricity. He submits that insofar as the price at which the
electricity would be purchased by the appellants – DISCOMS
from the generation unit of HNPCL would be determined by
the State Commission, which will have to take into
consideration various aspects while approving the capital cost
of the project as well as while doing the exercise of
determination of tariff. The learned Senior Counsel therefore
submits that no interference is warranted in the present
45. The facts in the present case are not much in
dispute. It is not in dispute that on 17 th July, 1992, an MoU
came to be entered between APSEB and HNPCL, vide which
APSEB had transferred all the licences, approvals, clearance
and permits, fuel linkage, water required for the project to
HNPCL. It is also not in dispute that on 9 th December, 1994,
an initial PPA came to be entered between HNPCL and
APSEB. On 25th July, 1996, the CERC granted a Techno
Economic Clearance for the power project for an estimated
cost of Rs.4628.11 crores (Rs.4.45 crores per MW). It is also
not in dispute that APSEB and HNPCL mutually agreed to
amend 1994 PPA and accordingly, an Amended and Restated
PPA came to be executed on 15 th April, 1998. It is also not in
dispute that from 1996 till 2007, the project remained in cold
storage. In the year 2007, the promoters of HNPCL
approached the then Hon’ble Chief Minister of the erstwhile
State of Andhra Pradesh. It appears that certain discussions
took place between the then Hon’ble Chief Minister of
erstwhile State of Andhra Pradesh and the promoters of
HNPCL. On 5th January, 2007, Mr. G.P. Hinduja addressed a
communication to the then Hon’ble Chief Minister of the
erstwhile State of Andhra Pradesh. It will be relevant to refer
to the following excerpt from the said communication, which
“As per our discussion I am summarizing
herein below our proposal for your ready
1. Vizag Power project will be mainly
structured as a Merchant plant and
implemented in a period manner with
an initial capacity of 1040 MW and
increasing upto 400 MW in a phased
manner.
2. GoAP will sign a MoU with the Project
- Title deeds for 1122.38 acres of land
against balance payment of Rs.16.48
- Transfer of remaining land of 1921.34
acres against payment of an amount
of Rs. 67.63 cr.
- Infrastructure support including for
construction, power and water.
- Recommend to GoI mega status for
the project.
- Facilitate environment clearance from
- Sanction of all other applicable State
3. GoAP will have the first right of refusal,
power at regulated tariff.”
46. It could thus be seen that when HNPCL proposed to
revive the project in the year 2007, it was mainly structured
as a Merchant plant, wherein the Government of Andhra
Pradesh was to have the first right of refusal, to purchase
25% of the power at regulated tariff.
47. It is also not in dispute that APCPDCL on behalf of all
the four APDISCOMS (viz., Central Power Distribution
Company of Andhra Pradesh Limited, Southern Power
Distribution Company of Andhra Pradesh Limited, Northern
Power Distribution Company of Andhra Pradesh Limited and
Eastern Power Distribution Company of Andhra Pradesh
Limited) had conducted bidding process for procurement of
power of 2000 MW +/ 20% under Case1 to meet the base
load requirements of APDISCOMS from the year 20142015
onwards. It is also not in dispute that in the said bidding
process, HNPCL had also submitted its bid and successfully
emerged as L2 bidder. After completion of the bidding
process, APCPDCL had applied for approval of the tariff at
which the power was to be purchased from the successful
bidders in the said process. It will be relevant to refer to
paragraph 4(u) of the order dated 13th August, 2013, passed
by the State Commission in O.P. No. 55 of 2013, filed by
APCPDCL on behalf of all the four APDISCOMS, which reads
“u) In the minutes of meeting held on
Evaluation Committee noted that
informed the Evaluation Committee
that the entire capacity of Hinduja
(HNPCL) is encumbered to the state
of A.P. /DISCOMs of A.P. and hence
not available for consideration under
this tender. Hence, HNPCL must be
accordingly. Hence the Committee
process”
48. It could thus be seen that though HNPCL had
successfully emerged as the L2 bidder in the open bidding
process, it was at the instance of the State of Andhra Pradesh
that the Bid Evaluation Committee had discarded the bid of
HNPCL, on the ground that the entire capacity of HNPCL was
encumbered to the State of Andhra Pradesh/APDISCOMS.
49. It will also be relevant to refer to the following excerpt
from the letter dated 26th December, 2012, addressed by the
Principal Secretary to Government, Energy Department, to
“This Is to Invite your attention to the
above cited letter intimating the
implementation of the coal fired power
Visakhapatnam and supply of power
therefrom. In this regard, HNPCL has
sought certain support so as to achieve
scheduled commissioning of the Project
matter I am to clarify that Government
of Andhra Pradesh reiterates its
Interest in purchasing 100% power
(through APDISCOMs) from the said
project, as already contemplated in the
restated PPA entered into between
conditions mentioned in the PPA signed
in 1998, except to the extent they may
change in laws/rules and regulatory
standards guiding such power projects
post 1998.
2. In this background, the Government
of Andhra Pradesh hereby agrees to
facilitate the implementation of the power
project to achieve the timeline for schedule
commissioning. The Government has
also decided to direct the APDlSCOMs
as the successor entities of APSEB to
enter into a continuation Agreement to
effect.”
50. A perusal of the said letter dated 26th December,
2012, would reveal that the Government of Andhra Pradesh
has reiterated its interest in purchasing 100% of power
(through APDISCOMS) from the said project, as already
contemplated in the restated PPA entered into between
APSEB and HNPCL in 1998 based on the MoU of 1992. No
doubt that it mentions that the same shall be except to the
extent they may stand modified due to impact of change in
laws/rules and regulatory standards guiding such power
projects post 1998. The said letter would also reveal that the
Government had decided to direct the APDISCOMS as the
successor entities of APSEB to enter into a continuation
agreement to the PPA of 1998 with HNPCL to the said effect.
It will also be relevant to note that in the said letter it is
observed that the State Government will take necessary steps
within three months for execution of PPA and provision of
Transmission System for Startup Power and Power
Evacuation. In the said letter, the State had also agreed for
providing assistance in obtaining statutory
clearances/approvals from State/local authorities within the
timeline for scheduled commissioning of Project.
51. In response to the aforesaid letter, HNPCL addressed
a communication dated 14th January, 2013, to the State
Government, thereby expressing its concurrence to the
proposal given by the Government of Andhra Pradesh of
procuring entire power from the Project. Vide the said letter
dated 14th January, 2013, HNPCL requested the State
Government to provide all the necessary support required for
taking the requisite approvals from the State Commission for
tariff determination based on the actual project cost.
52. A further communication dated 16th May, 2013, was
addressed by HNPCL to the appellants DISCOMS. By the
said letter, HNPCL had estimated the project cost to the tune
of Rs.6098 crores. The said project cost was worked out on
the basis of the order passed by the CERC dated 4 th June,
2012, providing a Benchmark Capital Cost (Hard cost) model
for Thermal Power Stations with Coal as Fuel for tariff
determined by the Commission under Section 62 of the Act of
53. The appellants – DISCOMS vide communication
dated 17th May, 2013, recorded that the documents of capital
cost of the Project were received without prejudice to the
rights of APDISCOMS to contest the cost of the project on
every component before the State Commission at appropriate
stage and that the receiving of the capital cost document did
not constitute that the APDISCOMS had agreed/accepted the
same without demur.
54. On the same day, i.e., 17th May, 2013, an MoA for
continuation of the Amended and Restated PPA dated 15 th
April, 1998, came to be executed between APDISCOMS and
HNPCL. It will be relevant to refer to clauses E and F of the
said MoA dated 17th May, 2013, which read thus:
“E. HNPCL shall agree that the entire
capacity of the project and all the units
of the power station shall at all times be
for the exclusive benefit of the DISCOMs
exclusive right as well as obligation to
purchase the entire capacity from the
project. HNPCL shall not grant to any
third party or allow any third party to
obtain any entitlement to the Available
Capacity and/or scheduled energy. In
case DISCOMs do not avail power up to
the Available Capacity provided by
HNPCL, DISCOMs shall pay to HNPCL
the capacity charges for such unavailed
Notwithstanding the above, in case
DISCOMS do not avail power up to the
Available Capacity provided by HNPCL,
HNPCL shall have the option to sell
such Available Capacity not availed by
DISCOMS to any third party or require
the payment of capacity charges from
Available Capacity not sold to third
parties. DISCOMs shall not be required
capacity sold to third parties.
F. Transmission line/system for startup
power and power evacuation from the
Project will be provided by DISCOMs
through APTRANSCO in time so as to
ensure availability of power evacuation
facility at the time of COD of Unit 1.
DISCOMs assure that power evacuation
without any delay.”
55. It could thus be seen that in the MoA dated 17th May,
2013, it was agreed that the entire capacity of the project and
all the units of the power station shall at all times be for the
exclusive benefit of the DISCOMS and the DISCOMS were to
have the exclusive right as well as the obligation to purchase
the entire capacity from the project. Vide the said MoA,
HNPCL was restrained from granting to any third party or
allowing any third party to obtain any entitlement to the
available capacity and/or scheduled energy. It was further
agreed that in case DISCOMS do not avail power up to the
Available Capacity provided by HNPCL, the DISCOMS were to
pay HNPCL, the capacity charges for such unavailed
Available Capacity. No doubt, that in case the DISCOMS
failed to avail power upto the Available Capacity provided by
HNPCL, an option was available to HNPCL to sell such
Available Capacity, not availed by DISCOMS, to any third
party. It was also agreed that the DISCOMS were not required
to pay capacity charges for such capacity sold to third
parties. As per the said MoA, the Transmission line/system
for startup power and power evacuation from the project was
to be provided by DISCOMS through Transmission
Corporation of Andhra Pradesh (APTRANSCO) in time so as to
ensure availability of power evacuation facility at the time of
COD of Unit1. It is also not in dispute that in pursuance of
the execution of the said MoA, HNPCL entered into an FSA
with Mahanadi Coalfield Limited for supply of coal for the
56. Pursuant to the execution of the said MoA, an
application being O.P. No.21 of 2015 came to be filed by
HNPCL before the State Commission on 12 th March, 2014, for
determination of Capital Cost of the coal fired power station
of 1040 MW (2 x 520 MW) capacity in the district of
57. Pursuant to these events, the Reorganisation Act
came into effect on 2nd June, 2014, thereby bifurcating the
erstwhile State of Andhra Pradesh into the State of Andhra
Pradesh and the State of Telangana. It is the contention of
HNPCL that after the bifurcation of the erstwhile State of
Andhra Pradesh, though the State of Telangana demanded
54% of the power from the project, the Government of Andhra
Pradesh insisted HNPCL to supply 100% of the power to the
State of Andhra Pradesh.
58. It is not in dispute that HNPCL filed an Addendum
Application in O.P. No.21 of 2015 on 28 th July, 2015, thereby
showing the capital cost of the project to have increased to
Rs.8087 crores.
59. When O.P. No.21 of 2015, was listed before the State
Commission on 26th September, 2015, the State Commission
“Sri P. Shiva Rao, learned Standing
Counsel for the respondents filed counter
on behalf for the respondents and sought
for further time to respond to the further
material filed by the petitioner by way of
addendum before the Commission. Sri P.
Shiva Rao, learned Standing Counsel for
the respondents also represented that they
are filing an application to dispense with
the earlier Consultant as the respondents
appointed their own Consultant. Hence,
for further response of the respondents
and rejoinder of the petitioner to the
counter filed by tile respondents and for
further hearing on the question of
Consultant including on the application for
dispensing with the earlier Consultant.
Posted to 03102015 at 11 AM. Both the
learned counsel also represented that
there is no issue of jurisdiction involved in
the matter.”
60. It is also not in dispute that the first unit of the
power project of HNPCL (520 MW) was declared COD on 11 th
61. Further, it is not in dispute that the State
Commission by an order dated 1 st March, 2016, directed the
appellants – DISCOMS to pay an interim tariff at the rate of
Rs.3.61 per unit to HNPCL. By the said order, the State
Commission also clarified that such interim tariff was without
prejudice to the rights and contentions of both parties in the
main petition, i.e., O.P. No.21 of 2015.
62. After the bifurcation of the erstwhile State of Andhra
Pradesh into the State of Andhra Pradesh and the State of
Telangana, on 28th April, 2016, a Continuation Agreement
came to be signed between the appellants – DISCOMS and
HNPCL. A perusal of the recital in the said Continuation
Agreement dated 28th April, 2016 would reveal that the
Government of Andhra Pradesh represented by the erstwhile
APSEB had expressed the desire to establish a coalbased
Thermal Power Project at Visakhapatnam and had selected
the consortium of Ashok Leyland Limited, a company
incorporated in India and Mission Energy Company, a
California, USA corporation, to set up a joint venture for
establishing a thermal power station. The said Continuation
Agreement dated 28th April, 2016, also refers to the MoU of
1992 (dated 17th July, 1992), PPA of 1994 (dated 9th
December, 1994), the Amended and Restated PPA of 1998
(dated 15th April, 1998), the correspondence between the
State of Andhra Pradesh and HNPCL, and MoA between the
erstwhile State of Andhra Pradesh and HNPCL dated 17 th
May, 2013. It will be relevant to refer to the following part of
the Continuation Agreement dated 28th April, 2016:
“3) The Parties acknowledge and agree
that the Procurers have replaced the
APSEB in all respects with regard to
the 1998 PPA and shall execute such
other or further documents and/or
take such steps, as are necessary
and/or incidental, in order to give full
and complete effect to such transfer
of contracts, deeds, agreements and
other instruments of whatever nature
to the Procurers.
4) The Procurers hereby agree that they
are jointly and separately liable for all
obligations under the Agreement.
pending the execution of such other
or further documents as envisaged
under Clause 3 hereof, the Parties
Continuation Agreement to the 1998
attached hereto, which Annexure
shall constitute an integral part of
this Continuation Agreement.
shall stand modified or amended to
the extent provided herein. All other
terms and conditions of the 1998 PPA
including the obligations of the
Parties as stated thereunder shall
continue to be binding on the Parties.
This Continuation Agreement and the
1998 PPA shall together constitute
one and the same agreement and the
provisions of this Continuation
Agreement shall form an Integral part
notwithstanding the foregoing, should
any provisions of this Continuation
conflict with any of the provisions of
provisions of this Continuation
Agreement shall prevail.”
63. It could thus clearly be seen that the appellants –
DISCOMS have clearly represented that they had replaced the
APSEB in all respects with regard to the 1998 PPA and had
agreed to execute all further documents and take such steps
as are necessary in order to give full and complete effect to
such transfer of contracts, deeds, agreements, etc. The
appellants – DISCOMS have also clearly agreed that the 1998
PPA (i.e. the Amended and Restated PPA dated 15 th April,
1998) shall stand amended as mentioned in the said
Continuation Agreement dated 28th April, 2016. It has been
specifically averred that the Continuation Agreement and the
1998 PPA shall together constitute one and the same
64. Immediately after the said Continuation Agreement
was entered into between the appellants – DISCOMS and
HNPCL, the appellants – DISCOMS filed an application being
O.P. No.19 of 2016 under Section 86(1)(b) of the Act of 2003
for grant of approval of PPA. The said application contained
the entire history narrated herein above leading up to the
execution of the Continuation Agreement dated 28 th April,
2016. The prayer clause in the said application reads thus:
32. Therefore, it is prayed that the
Hon’ble Commission may be pleased to
grant approval/consent for the initialed
Continuation Agreement to the PPA dated
15.04.1998 together with Amended &
Restated PPA dated 15.04.1998 of
65. The State Government vide order dated 1st June,
2016, accorded approval for purchase of 100% power from
HNPCL. On 3rd July, 2016, the second unit of HNPCL (520
MW) was declared COD. Vide order dated 6 th August, 2016,
the State Commission, after hearing the counsel for the
parties, directed the appellants – DISCOMS to pay an interim
tariff at the rate of Rs.3.82 per unit to HNPCL from 1 st
August, 2016 for the power received by them. This was to
operate until further orders passed by the State Commission.
66. It is also not in dispute that after elaborate hearing in
both the petitions i.e. O.P. No.21 of 2015 and O.P. No.19 of
2016, the State Commission reserved the matters for orders
on 15th May, 2017. It is also not in dispute that in an appeal
between the parties arising out of interlocutory proceedings,
the APTEL had directed the State Commission to decide O.P.
No.19 of 2016 and O.P. No.21 of 2015 expeditiously and on
or before 14th August, 2017. The said period came to be
extended from time to time, the last of such extension was
granted till 31st January, 2018, vide order dated 10 th January,
67. At this juncture, the appellants – DISCOMS filed two
Interlocutory Applications on 4th January, 2018, viz., (i) I.A.
No.1 of 2018 in O.P. No.19 of 2016 for withdrawal of O.P.
No.19 of 2016 together with initial PPA; and (ii) I.A. No.2 of
2018 in O.P. No.21 of 2015 for disposal of O.P. No.21 of
68. Vide order dated 31st January, 2018, passed by the
State Commission, which was impugned before the APTEL,
the State Commission allowed withdrawal of O.P. No.19 of
2016 filed by the appellants DISCOMS and consequently
dismissed O.P. No.21 of 2015 filed by HNPCL.
69. As discussed herein above, being aggrieved, HNPCL
filed Appeal No.41 of 2018 before the APTEL, which came to
be admitted by the APTEL on 26 th February, 2018. It is also
not in dispute that the APTEL passed an interim order dated
16th March, 2018 in I.A. No.211 of 2018 in Appeal No.41 of
2018, on an ad hoc arrangement basis, thereby directing the
parties to maintain status quo as prevalent prior to 31 st
January, 2018. It is also not in dispute that both the orders
passed by the APTEL, i.e., order dated 16 th March, 2018
directing maintenance of status quo as prevalent prior to 31 st
January, 2018 and order dated 26 th February, 2018,
admitting Appeal No.41 of 2018, were assailed before the
High Court of Andhra Pradesh by way of Writ Petitions being
Writ Petition No. 10814 of 2018 and Writ Petition No.13689 of
2018 respectively. However, the same were dismissed by the
High Court of Andhra Pradesh by order dated 2 nd May, 2018.
70. It is also not in dispute that in the meantime,
Execution Petition No. 3 of 2018 was filed by HNPCL before
the APTEL seeking execution of order dated 16 th March, 2018,
passed by the APTEL in I.A. No.211 of 2018 in Appeal No.41
71. The appellants – DISCOMS had also approached this
Court by way of Civil Appeal No.5772 of 2018, challenging the
interim order passed by the APTEL dated 16 th March, 2018.
However, this Court refused to interfere with the said order
and directed the APTEL to decide the appeal pending before it
expeditiously without taking into consideration the
observation in the impugned order as conclusive.
72. Vide the impugned judgment and order dated 7th
January, 2020, the Appeal No.41 of 2018, filed by HNPCL has
been allowed by the APTEL, the correctness of which is under
challenge in the present proceedings.
73. It could thus clearly be seen that though HNPCL had
initially proposed to revive its project in the year 2007 as a
Merchantpower plant and had proposed to give the
Government of Andhra Pradesh first right of refusal, in the
MoU, to purchase 25% of the power at regulated tariff, it was
at the instance of the State of Andhra Pradesh that it had
agreed to supply 100% power to the State through
APDISCOMS. It could clearly be seen from the record that
though HNPCL had participated in the bidding process
conducted by the APCPDCL in the year 20112012 and
though HNPCL had successfully emerged as L2 bidder in the
said bidding process, it was on account of the decision of the
Bid Evaluation Committee, that HNPCL was discarded from
the bidding process since the entire generation capacity of
HNPCL was encumbered to the State of Andhra
Pradesh/APDISCOMS. The minutes of the meeting dated 28 th
September, 2012 of the Bid Evaluation Committee, as has
been noticed in the order of the State Commission dated 13 th
August, 2013, clarify this position.
74. It is the State of Andhra Pradesh, which had
expressed its interest in purchasing 100% power from
HNPCL, as could be seen from the various documents placed
on record. The communication addressed by the Principal
Secretary to the Government of Andhra Pradesh, Energy
Department, to HNPCL dated 26th December, 2012, clearly
reiterates the intention of the Government of Andhra Pradesh
in purchasing 100% power (through DISCOMS) from the
project of HNPCL. The said communication would also show
that the State has assured to take all necessary steps for
commissioning the project at the earliest including execution
of PPA and for making provision of Transmission system for
startup power and power evacuation. The said
communication would clearly show that the parties had
agreed to abide by the conditions mentioned in the Amended
and Restated PPA dated 15th April, 1998, except to the extent
they may stand modified due to impact of change in
laws/rules and regulated standards guiding such power
projects post 1998.
75. No doubt, that the documents placed on record
would show that though HNPCL had given its estimation of
project cost on the basis of the guidelines issued by the
CERC, the same was received by the appellants – DISCOMS
without prejudice to their rights to contest the same on every
component before the State Commission. The documents
placed on record would clearly show that the State of Andhra
Pradesh has, on more than one occasion, expressed that it
was interested in buying 100% power from the project of
HNPCL. The MoA signed between the appellants – DISCOMS
and HNPCL dated 17th May, 2013, would clearly show that it
was agreed between the parties that the entire capacity of
HNPCL project and all the units of the power stations shall,
at all times, be for the exclusive benefit of the DISCOMS and
the DISCOMS were to have the exclusive right as well as
obligation to purchase the entire capacity from the project.
Not only this, but after the Reorganisation Act came into
effect and the erstwhile State of Andhra Pradesh was
bifurcated into the State of Andhra Pradesh and the State of
Telangana, the State of Andhra Pradesh, on more than one
occasion, reiterated its stand of procuring 100% power from
the project of HNPCL. Perusal of the orders of the State
Commission dated 26th September, 2015 and 6th August,
2016, would clearly reveal that the appellants – DISCOMS
also stood by the position that the 100% power generated in
the power plant of HNPCL was to be purchased by them. Not
only this, but after the bifurcation of the erstwhile State of
Andhra Pradesh, the appellants – DISCOMS entered into a
Continuation Agreement dated 28th April, 2016, reiterating
their stand.
76. After the Continuation Agreement was entered into
on 28th April, 2016, the appellants – DISCOMS filed O.P.
No.19 of 2016 for approval of the Continuation Agreement
with the Amended and Restated PPA of 1998 on 11 th May,
2016. The State Government again on 1st June, 2016,
accorded its approval for purchase of 100% power generated
by HNPCL. It could thus be seen that right from the year
2012 till January, 2018, it was the consistent stand of the
State of Andhra Pradesh as well as the appellants – DISCOMS
and its predecessors that the appellants DISCOMS were to
purchase 100% power generated by HNPCL.
77. It is also not in dispute that in pursuance of the
MoA, executed on 17th May, 2013, HNPCL had also entered
into FSA dated 26th August, 2013 with Mahanadi Coalfield
Limited for supply of coal for the project.
78. It is thus clear that the consistent stand of the
appellants DISCOMS from the year 2012, for the first time,
changed on 4th January, 2018, when they filed Interlocutory
Applications before the State Commission for withdrawal of
O.P. No.19 of 2016 and disposal of O.P. No.21 of 2015.
79. As already observed hereinabove, in the open bidding
process, conducted in the year 20112012, HNPCL emerged
as the successful L2 bidder. It is however on account of the
stand taken by the Bid Evaluation Committee, that it was
discarded from the bidding process. As such, the stand of
the appellants – DISCOMS, that the revival of the project of
HNPCL was as a Merchantpower plant and therefore, the
appellants – DISCOMS cannot be compelled to purchase
power from it, is selfcontradictory. On one hand, HNPCL
was discarded from the open bidding process, though it was
the successful L2 bidder, on the ground that 100% power
generated by HNPCL is encumbered to the State of Andhra
Pradesh/APDISCOMS whereas, on the other hand, it is now
sought to be urged that the appellants – DISCOMS cannot be
compelled to purchase the power from HNPCL, since it was a
merchantpower plant. We have no hesitation to hold that
the APTEL has rightly held that, on account of the assurance
given by the State of Andhra Pradesh/APDISCOMS, HNPCL
had altered its position and as such, it was not permissible
for the appellants – DISCOMS to withdraw O.P. No.19 of
2016. The grounds, which are sought to be urged in I.A. No.1
of 2018 in O.P. No.19 of 2016 and I.A. No.2 of 2018 in O.P.
No.21 of 2015, were very much available when the appellants
– DISCOMS had entered into MoA on 17 th May, 2013 and the
Continuation Agreement dated 28th April, 2016. It is difficult
to appreciate how it is permissible for the appellants –
DISCOMS to withdraw the application for grant of approval of
PPA on the ground that it could procure the power only
through the competitive bidding process, when in the facts of
the present case, it was the State of Andhra Pradesh, which
had discarded HNPCL from the open bidding process of 2011
2012, though it had successfully emerged as L2 bidder in
the said bidding process.
80. Various authorities have been cited at the Bar in
support of the proposition that withdrawal of an application
could not be permissible when such a withdrawal amounts to
frustration of a contract and thereby defeats the rights of the
defendant and that the right of withdrawal is not absolute. In
this respect, we will refer to the observations made by this
Court in the case of Arjun Singh v. Mohindra Kumar &
Ors.15. Though the issue involved in the said case is distinct
than the issue involved in the present case, we find that it
will be apposite to seek guidance from the observations made
by this Court, while construing the provisions of Order IX and
Order XX of the Code of Civil Procedure, 1908 (CPC). The
“ ….In the present context when once
the hearing starts, the Code contem
plates only two stages in the trial of the
suit: (1) where the hearing is adjourned
or (2) where the hearing is completed.
Where, the hearing is completed the
parties have no further rights or priv
ileges in the matter and it is only for
the convenience of the Court that Or
der XX. Rule 1 permits judgment to
be delivered after interval after the
hearing is completed. It would, there
fore, follow that after the stage con
terms of Order IX. Rule 6 the Court is
competent to pass. And then follows
the remedy of the party to have that de
cree set aside by application under Or
der IX. Rule 13. There is thus no hia
tus between the two stages of reser
vation of judgment and pronouncing
the judgment so as to make it neces
sary for the Court to afford to the
party the remedy of getting orders
passed on the lines of Order IX. Rule
7. We are, therefore, of the opinion that
the Civil Judge was not competent to en
tertain the application dated May 31,
1958 purporting to be under Order IX.
Rule 7 and that consequently the rea
sons given in the order passed would not
be res judicata to bar the hearing of the
petition undo Order IX. Rule 13 filed by
the appellant.”
81. It can be seen that this Court has held that CPC
contemplates two stages of the trial in the suit: (1) where the
hearing is adjourned; and (2) where the hearing is completed.
It has been held that where the hearing is completed, the
parties have no further rights or privileges in the matter and
it is only for the convenience of the Court that Order XX rule
1 permits judgment to be delivered after an interval after the
hearing is completed. It has been held that there is no hiatus
between the two stages of reservation of judgment and
pronouncing the judgment so as to make it necessary for the
Court to afford to the party the remedy of getting orders
passed on the lines of Order IX rule 7.
82. The other judgments of various High Courts relied
upon by Shri Ramachandran, follow the line laid down by
this Court in Arjun Singh (supra).
83. Insofar as the reliance placed by Shri Vaidyanathan,
learned Senior Counsel, on the judgment of Court of Appeal
in the case of Boal Quay Wharfingers Ltd. (supra) is
concerned, the said case arose out of an application made by
the appellant therein to the Licensing Authority for grant of a
license. It was not an application in a quasijudicial
proceeding where the withdrawal of an application would
adversely affect the rights of the other party. In the said case,
it has been observed that if a person applies for a license,
there is no prohibition as to why he is not entitled to
withdraw his application, unless, of course, there is some
provision in law, which would prevent him from doing so.
The proceedings in the aforesaid case did not arise from a lis
between the two parties, but arose out of an application made
by a party to a licensing authority under the Docks and
84. Insofar as the reliance placed on the judgment of this
Court in the case of Hulas Rai Baij Nath (supra) is
concerned, the respondent therein had instituted a suit for
rendition of accounts against the appellantfirm, alleging that
the appellantfirm was the commission agent of the
respondent and that the accounts between respondent as the
principal and appellant as the agent were not settled. The
claim of the respondent was resisted by the appellant therein,
stating that the claim of the respondent was fully settled and
that the suit was not fit to proceed in accordance with law.
In the said suit, after a considerable amount of evidence had
been recorded, an application was presented on behalf of the
respondentplaintiff for withdrawal of the suit. The same was
objected to. The trial court overruled the objection of the
appellantdefendant, holding that the plaintiff had a right to
withdraw the suit and that right could be exercised at any
time before judgment. The defendant could only claim an
order for costs in his favour. The suit was therefore
dismissed awarding costs of the suit to the appellant
defendant. The appellantdefendant filed revision in the High
Court. The High Court dismissed the revision. Being
aggrieved, the appellantdefendant had approached the Apex
Court. In this factual background, this Court observed thus:
“2. The short question that, in these cir
cumstances, falls for decision is whether
the respondent was entitled to withdraw
from the suit and have it dismissed by the
application dated 5th May, 1953 at the
stage when issues had been framed and
some evidence had been recorded, but no
preliminary decree for rendition of ac
counts had yet been passed. The language
of order 23 Rule 1 subrule (1) CPC, gives
an unqualified right to a plaintiff to with
draw from a suit and, if no permission to
file a fresh suit is sought under subrule
(2) of that Rule, the plaintiff becomes liable
for such costs as the Court may award and
becomes precluded from instituting any
fresh suit in respect of that subjectmatter
under subrule (3) of that Rule. There is no
provision in the Code of Civil Procedure
which requires the Court to refuse permis
sion to withdraw the suit in such circum
stances and to compel the plaintiff to pro
ceed with it. It is, of course, possible that
different considerations may arise where a
setoff may have been claimed under order
8 CPC, or a counter claim may have been
filed, if permissible by the procedural law
applicable to the proceedings governing
the suit. In the present case, the pleadings
in paras 8 and 11 of the written statement
mentioned above, clearly did not amount
to a claim for setoff. Further, there could
be no counterclaim, because no provision
is shown under which a counterclaim
could have been filed in the trial court in
such a suit. There is also the circumstance
that the application for withdrawal was
moved at a stage when no preliminary de
cree had been passed for rendition of ac
count and, in fact, the appellant was still
contending that there could be no rendi
tion of accounts in the suit, because ac
counts had already been settled. Even in
para 11, the only claim put forward was
that, in case the Court found it necessary
to direct rendition of accounts and any
amount is found due to the appellant, a
decree may be passed in favour of the ap
pellant for that amount. In this paragraph
also, the right claimed by the appellant
was a contingent right which did not exist
at the time when the written statement
was filed.”
85. It could thus be seen that the facts in the aforesaid
case are totally different from the facts in the present case.
This Court in the aforesaid case held that there is no
provision in the CPC, which requires the Court to refuse
permission to withdraw the suit and compel the plaintiff to
proceed with it. However, this Court itself has clarified that
different considerations could arise where a setoff may have
been claimed under order VIII of CPC, or a counter claim may
have been filed, if permissible by the procedural law
applicable to the proceedings governing the suit. It was
found that from the pleadings in the written statement, it
could be clearly seen that there is no claim for setoff. It was
further found that there could be no counterclaim, since no
provision was shown under which a counterclaim could have
been filed in the trial court in such a suit. It was further
found that the right claimed by the appellant was a
contingent one and did not exist at the time at which the
written statement was filed.
86. The facts in the present case are totally different,
wherein, after execution of various agreements, an
application being O.P. No.19 of 2016 came to be filed for
grant of approval of PPA. Not only this, but the said O.P.
No.19 of 2016 was clubbed along with O.P. No.21 of 2015,
which was filed for determination of capital cost of the project
as well as for determination of tariff. It can further be seen
that in the aforesaid case, an application for withdrawal of
the suit was filed at the stage of leading of evidence. It is not
as if the application was filed after the suit was closed for
87. In any case, we are of the considered view that the
conduct of the appellants – DISCOMS, in the present case,
would disentitle them to withdraw the application.
88. Another argument, that on account of increase of the
capital cost of the project, the appellants – DISCOMS would
be required to purchase power at much higher rate, also does
not hold water. The State Commission while determining the
tariff would be guided by various factors as are required to be
taken into consideration in view of the provisions of Section
61 of the Act of 2003. In any event, the appellants –
DISCOMS have themselves reserved their right to contest the
correctness of the cost on every component at an appropriate
stage before the State Commission. As already stated
hereinabove, the State Commission, while approving the cost
of the project and determining the tariff at which the
electricity would be purchased by the APDISCOMS from
HNPCL, would be required to look into various factors as are
stated in Section 61 of the Act of 2003, so also under the
Regulations notified for that purpose. While doing so, the
State Commission would be required to take into
consideration the various aspects as well as submissions to
be made by the appellants – DISCOMS and HNPCL. Merely
because, the cost of the project is estimated by HNPCL at a
particular amount, the State Commission is not bound to
accept the same. The State Commission would only approve
the cost as it would feel appropriate, as guided by the
provisions under Section 61 of the Act of 2003 and the
Regulations. In that view of the matter, the argument in this
regard also, is without substance.
89. The appellants – DISCOMS have heavily relied on the
judgment of this Court in the case of Tata Power Company
Limited v. Reliance Energy Limited and others 16, and
particularly, on paragraph 106 thereof, which reads thus:
“106. The scheme of the Act, namely,
the generation of electricity is outside
the licensing purview and subject to ful
filment of the conditions laid down un
der Section 42 of the Act a generating
company may also supply directly to
consumer wherefor no licence would be
required, must be given due considera
tion. The said provision has to be read
with Regulation 24. In regard to the
grant of approval of PPA the procedures
laid down in Regulation 24 are required
to be followed.”
90. No doubt, that this Court has held that a generating
company may also supply directly to consumer wherefor no
licence would be required, however, this Court itself observed
that the said provision has to be read with Regulation 24 and
with regard to the grant of approval of PPA, the procedures
laid down in Regulation 24 are required to be followed.
91. It will also be relevant to refer to paragraph 119 of
the said judgment.
“119. The 2003 Act even permits the
generating company to supply electricity
to a consumer directly. For the said pur
pose what is necessary is to comply with
the provisions of the Act, the Rules and
the Regulations. Section 14 of the Act
categorically provides for grant of licence
to any person who is transmitting elec
tricity or distributing supply or under
taking trading therein, indisputably,
however, the generator of an electrical
energy, although is not subject to the
grant of licence but while supplying elec
trical energy to a distributing agency, in
turn would be subject to approval and
directions of the Commission.”
92. It can thus clearly be seen that this Court has held
that though the Act of 2003 permits the generating company
to supply electricity to a consumer directly, and that the
generator of an electrical energy is not subject to the grant of
license, but while supplying electrical energy to a distributing
agency, in turn, it would be subject to approval and
directions of the Commission.
93. We are, therefore, of the view that the said judgment
is of no assistance to the case sought to be advanced by the
appellants – DISCOMS. On the contrary, we find that the
view that is being taken by us is fortified by the following
observations of this Court in the case of Tata Power
“87. …. The agreement of distribution
(PPA) being subject to approval, indis
putably the Commission would have the
public interest in mind. It has power to
approve an MoU which subserves the
public interest. It, while granting such
approval may also take into considera
tion the question as to whether the
terms to be agreed are fair and just.
111. Section 86(1)(b) provides for regula
tion of electricity purchase and procure
ment process of distribution licensees. In
respect of generation its function is to
determine the tariff for generation as
also in relation to supply, transmission
and wheeling of electricity. Clause (b) of
subsection (1) of Section 86 provides to
regulate electricity purchase and pro
curement process of distribution li
censees including the price at which the
electricity shall be procured from the
generating companies or licensees or
from other sources through agreements.
As a part of the regulation it can also ad
judicate upon disputes between the li
censees and generating companies in re
gard to the implementation, application
or interpretation of the provisions of the
said agreement.”
94. It is thus trite that, while considering grant of
approval to the PPA, the State Commission will have to keep
in mind the public interest. It will have to consider, as to
whether the PPA, which is subject to approval, subserves the
public interest. It will also be required to take into
consideration, as to whether the terms agreed are fair and
just while granting approval. While exercising power under
Section 86(1)(b) of the Act of 2003, the Commission will have
to regulate the price at which the electricity would be
procured from the generating companies. Undoubtedly, while
doing so, the Commission will be guided by the factors
mentioned in Section 61 of the Act of 2003 and the
Regulations concerning the same. Under Section 86(1)(f) of
the Act of 2003, the Commission is also empowered to
adjudicate upon the disputes between the licensees and
generating companies, and to refer any such dispute for
95. Another argument made on the basis of Section 21 of
the Reform Act is also not tenable. Much reliance is placed
on subsection (5) of Section 21 of the said Act, which reads
“(5) Any agreement relating to any
transaction of the nature described in sub
sections (1), (2), (3) or (4) unless made with
or subject to such consent as aforesaid, shall
be void.”
96. It could thus be seen that any of the agreements
mentioned in subsections (1), (2), (3) or (4) of Section 21
would be void unless they are made with the consent of the
Commission or subject to such consent. Undisputedly,
understanding this legal position, O.P. No.19 of 2016 came to
be filed by the appellants – DISCOMS, so as to obtain
approval of the State Commission for the PPA entered into by
them with HNPCL.
97. Insofar as the reliance placed on the provision of
Regulation 5.2 of the Tariff Regulations is concerned, the
same deals with approach to determination of tariff. It could
be seen that, whereas Regulation 5.1 of the Tariff Regulations
provides that where tariff has been determined through
transparent process of bidding in accordance with the
guidelines issued by the Central Government, the
Commission shall adopt such tariff in accordance with the
provisions of the Act; Regulation 5.2 of the Tariff Regulations
provides that the provisions specified in PartII of the said
Regulation shall apply in determining tariff based on capital
cost for supply to a Distribution Licensee. PartII of the Tariff
Regulations deals with ‘Filing Details’ and ‘Tariff
Determination’. Regulation 9 requires that each application
where tariff is to be determined based on capital cost shall
include various details duly accompanied by supporting data
and documentary and other evidence regarding Fixed Costs,
Variable Costs and Norms of operation, etc. Regulation 10 of
the Tariff Regulations requires the tariff to be determined in
accordance with the norms specified under the said
Regulations, guided by the principles and methodologies
specified in CERC (Terms and Conditions of Tariff)
Regulations, 2004, as amended from time to time. The
Regulations contain detailed guidelines, as to what shall be
the component of tariff and as to how the capital cost and
tariff is to be determined.
98. We find that such an argument at the behest of a
party, which has discarded HNPCL from the bidding process,
though it had emerged as the successful L2 bidder, does not
hold water and we have no hesitation to say that the
appellants – DISCOMS’ approach is of approbate and
99. In any event, we find that the State Commission has
totally erred in dismissing O.P. No.21 of 2015 filed by HNPCL.
Perusal of Section 64 of the Act of 2003 would reveal that
even a Generating Company is entitled to make an
application for determination of tariff under Section 62 of the
Act of 2003. As such, irrespective of the question, as to
whether an application for withdrawal of O.P. No.19 of 2016
filed by the appellants DISCOMS could have been
entertained, the State Commission was wholly unjustified in
dismissing O.P. No.21 of 2015 filed by HNPCL. In any case,
we have held that in the facts of the present case and,
particularly, taking into consideration the conduct of the
appellants – DISCOMS, the APTEL has rightly held that the
appellants – DISCOMS could not have been permitted to
withdraw O.P. No.19 of 2016.
100. Undisputedly, the appellants – DISCOMS are
instrumentalities of the State and as such, a State within the
meaning of Article 12 of the Constitution of India. Every
action of a State is required to be guided by the touchstone
of nonarbitrariness, reasonableness and rationality. Every
action of a State is equally required to be guided by public
interest. Every holder of a public office is a trustee, whose
highest duty is to the people of the country. The Public
Authority is therefore required to exercise the powers only for
the public good.
101. We may gainfully refer to the following observations
of this Court in the case of Kumari Shrilekha Vidyarthi
and others v. State of U.P. and others17:
“27. Unlike a private party whose acts un
informed by reason and influenced by per
sonal predilections in contractual matters
may result in adverse consequences to it
alone without affecting the public interest,
any such act of the State or a public body
even in this field would adversely affect the
public interest. Every holder of a public of
fice by virtue of which he acts on behalf of
the State or public body is ultimately ac
countable to the people in whom the
sovereignty vests. As such, all powers so
vested in him are meant to be exercised for
public good and promoting the public inter
est. This is equally true of all actions even
in the field of contract. Thus, every holder
of a public office is a trustee whose highest
duty is to the people of the country and,
therefore, every act of the holder of a public
office, irrespective of the label classifying
that act, is in discharge of public duty
meant ultimately for public good. With the
diversification of State activity in a Welfare
State requiring the State to discharge its
wide ranging functions even through its
several instrumentalities, which requires
entering into contracts also, it would be
unreal and not pragmatic, apart from being
unjustified to exclude contractual matters
from the sphere of State actions required to
be nonarbitrary and justified on the touch
stone of Article 14.
28. Even assuming that it is necessary to
import the concept of presence of some
public element in a State action to attract
Article 14 and permit judicial review, we
have no hesitation in saying that the ulti
mate impact of all actions of the State or a
public body being undoubtedly on public
interest, the requisite public element for
this purpose is present also in contractual
matters. We, therefore, find it difficult and
unrealistic to exclude the State actions in
contractual matters, after the contract has
been made, from the purview of judicial re
view to test its validity on the anvil of Arti
cle 14.”
102. It will also be apposite to refer to the following
observations of this Court in the case of Food Corporation
of India v. M/s Kamdhenu Cattle Feed Industries18:
“7. In contractual sphere as in all other
State actions, the State and all its instru
mentalities have to conform to Article 14
of the Constitution of which nonarbi
trariness is a significant facet. There is no
unfettered discretion in public law: A
public authority possesses powers only to
use them for public good. This imposes
the duty to act fairly and to adopt a pro
cedure which is ‘fairplay in action’. Due
observance of this obligation as a part of
good administration raises a reasonable
or legitimate expectation in every citizen
to be treated fairly in his interaction with
the State and its instrumentalities, with
this element forming a necessary compo
nent of the decisionmaking process in all
State actions. To satisfy this requirement
of nonarbitrariness in a State action, it
is, therefore, necessary to consider and
give due weight to the reasonable or legit
imate expectations of the persons likely to
be affected by the decision or else that
unfairness in the exercise of the power
may amount to an abuse or excess of
power apart from affecting the bona fides
of the decision in a given case. The deci
sion so made would be exposed to chal
lenge on the ground of arbitrariness. Rule
of law does not completely eliminate dis
cretion in the exercise of power, as it is
unrealistic, but provides for control of its
exercise by judicial review.
8. The mere reasonable or legitimate ex
pectation of a citizen, in such a situation,
may not by itself be a distinct enforceable
right, but failure to consider and give due
weight to it may render the decision arbi
trary, and this is how the requirement of
due consideration of a legitimate expecta
tion forms part of the principle of nonar
bitrariness, a necessary concomitant of
the rule of law. Every legitimate expecta
tion is a relevant factor requiring due
consideration in a fair decisionmaking
process. Whether the expectation of the
claimant is reasonable or legitimate in
the context is a question of fact in each
case. Whenever the question arises, it is
to be determined not according to the
claimant's perception but in larger public
interest wherein other more important
considerations may outweigh what would
otherwise have been the legitimate expec
tation of the claimant. A bona fide deci
sion of the public authority reached in
this manner would satisfy the require
ment of nonarbitrariness and withstand
judicial scrutiny. The doctrine of legiti
mate expectation gets assimilated in the
rule of law and operates in our legal sys
tem in this manner and to this extent.”
103. Recently, this Court in the case of Indian Oil
Corporation Limited and others v. Shashi Prabha
Shukla and another19, after referring to earlier judgments of
this Court on the present issue has observed thus:
“33. Jurisprudentially thus, as could be
gleaned from the above legal enuncia
tions, a public authority in its dealings
has to be fair, objective, nonarbitrary,
transparent and nondiscriminatory. The
discretion vested in such an authority,
which is a concomitant of its power is
coupled with duty and can never be un
regulated or unbridled. Any decision or
action contrary to these functional pre
cepts would be at the pain of invalidation
thereof. The State and its instrumentali
ties, be it a public authority, either as an
individual or a collective has to essen
tially abide by this inalienable and non
negotiable prescriptions and cannot act
in breach of the trust reposed by the
polity and on extraneous considerations.
In exercise of uncontrolled discretion and
power, it cannot resort to any act to frit
ter, squander and emasculate any public
property, be it by way of State largesse or
contracts, etc. Such outrages would
clearly be unconstitutional and extinctive
bedrock of the constitutional order.”
104. In the present case, though initially, HNPCL had
revived its project in the year 2007 as a Merchantpower
plant and offered 25% of electricity to the State, it was the
State, which offered to purchase 100% power from HNPCL.
HNPCL agreed for the said offer of the State Government. It
is clear from the record and, particularly, the letter dated 26 th
December, 2012, that the State had given various
facilities/concessions to HNPCL for execution of its power
project. The documents on record would reveal that the State
has also allotted thousands of acres of land for the project to
HNPCL. It is not in dispute that in pursuance of the MoA of
2013 (dated 17th May, 2013) and the Continuation Agreement
of 2016 (dated 28th April, 2016), the entire project has been
erected and is operational. Not only this, but from the year
2016 till 14th July, 2020, the power has been purchased by
the appellants – DISCOMS from HNPCL. It could thus be
seen that after investment of huge resources including the
land belonging to the State, the project is complete and has
become operational. The question, at this juncture, would
be, whether to discard such a project is in the public interest
or against it. At the cost of repetition, it may be reiterated,
that the determination of the capital cost of the project and
the rate of tariff at which the power has to be purchased
would always be subject to regulatory control of the State
Commission. What has been done by the APTEL is only
directing the State Commission to determine the same.
105. The record would clearly reveal that from the year
2012 onwards till 4th January, 2018, it was the consistent
stand of the State of Andhra Pradesh as well as the
APDISCOMS that it would be purchasing 100% power
generated from the project of HNPCL. Not only an application
being O.P. No.21 of 2015 was filed by HNPCL for
determination of capital cost, but also O.P. No.19 of 2016 was
filed by the appellants – DISCOMS for grant of approval to the
Continuation Agreement dated 28th April, 2016 with the
Amended and Restated PPA of 1998. The matters were heard
finally on 15th May, 2017 and closed for orders. For some
unknown reasons, exclusively within the knowledge of the
appellants – DISCOMS, things turned topsyturvy between
15th May, 2017 and 4th January, 2018, on which date, the
appellants – DISCOMS did a somersault and filed
applications for withdrawal of O.P. No.19 of 2016 and
disposal of O.P. No.21 of 2015. As already discussed
hereinabove, every decision of the State is required to be
guided by public interest and the power is to be exercised for
public good. For reasons unknown, the appellants –
DISCOMS took a decision to resile from their earlier stand,
due to which, not only the huge investment made by HNPCL
would go in waste, but also valuable resources of the public
including thousands of acres of land would go in waste. As
already discussed hereinabove, the reasons/grounds, which
are sought to be given in I.A. No. 1 of 2018 in O.P. No.19 of
2016 and I.A. No.2 of 2018 in O.P. No.21 of 2015, filed on 4 th
January, 2018, were very much available between 2011 till
15th May, 2017. It is not as if something new has emerged
between 15th May, 2017 and 4th January, 2018, which would
have entitled the appellants – DISCOMS to resile from their
earlier stand. We have no hesitation to hold that the
appellants – DISCOMS could not be permitted to change the
decision at their whims and fancies and, particularly, when it
is adversarial to the public interest and public good. The
record would clearly show that the change in decision is
arbitrary, irrational and unreasonable.
106. We may also gainfully refer to the following
observations of this Court in the case of Kalabharati
Advertising v. Hemant Vimalnath Narichania and
“25. The State is under obligation to act
fairly without ill will or malice— in fact or
in law. “Legal malice” or “malice in law”
means something done without lawful ex
cuse. It is an act done wrongfully and wil
fully without reasonable or probable
cause, and not necessarily an act done
from ill feeling and spite. It is a deliberate
act in disregard to the rights of others.
Where malice is attributed to the State, it
can never be a case of personal ill will or
spite on the part of the State. It is an act
which is taken with an oblique or indirect
object. It means exercise of statutory
power for “purposes foreign to those for
which it is in law intended”. It means
conscious violation of the law to the prej
udice of another, a depraved inclination
on the part of the authority to disregard
the rights of others, which intent is mani
fested by its injurious acts. (Vide ADM,
Jabalpur v. Shivakant Shukla [(1976) 2
Venkataraman v. Union of India [(1979) 2
1979 SC 49] , State of A.P. v. Goverdhan
lal Pitti [(2003) 4 SCC 739 : AIR 2003 SC
1941] , BPL Ltd. v. S.P. Gururaja [(2003) 8
SCC 567] and W.B. SEB v. Dilip Kumar
26. Passing an order for an unauthorised
purpose constitutes malice in law.
Singh [(2005) 6 SCC 776] and Union of In
dia v. V. Ramakrishnan [(2005) 8 SCC
107. We have no hesitation to hold that I.A. No.1 of 2018
in O.P. No.19 of 2016 and I.A. No.2 of 2018 in O.P. No.21 of
2015 filed by the appellants – DISCOMS, are acts, which have
been done wrongfully and wilfully without reasonable and
probable cause. It may not necessarily be an act done out of
ill feeling and spite. However, the act is one, affecting public
interest and public good, without there being any rational or
reasonable basis for the same.
108. Though serious allegations of mala fide have been
made by HNPCL, we do not find it necessary to go in those
allegations. However, in our view, the present case would
squarely fit in the realm of ‘legal malice’ or ‘malice in law’.
109. In any case, we find that the judgment impugned
before us cannot be said to be of such a nature, which can be
said to be prejudicial to the interests of any of the parties.
What has been done by the APTEL is only to direct the State
Commission to dispose of O.P. No.21 of 2015 filed for
determination of capital cost and O.P. No.19 of 2016 filed for
approval of Amended and Restated PPA (Continuation
Agreement) on merits. On remand, the State Commission
would be bound to take into consideration all the relevant
factors and the contentions to be raised by both the parties
before deciding the said O.Ps.
110. We therefore find no reason to interfere with the
impugned judgment. However, before parting with the
judgment, it is necessary to place on record the conduct of
the appellants – DISCOMS. Though vide order dated 14 th
July, 2020, this Court had stayed the impugned judgment
passed by the APTEL, vide order dated 21 st August, 2020, this
Court had clarified that there shall be no stay of the order
dated 16th March, 2018 passed by the APTEL. It is not in
dispute that in pursuance of the interim order dated 16 th
March, 2018, passed by the APTEL, the appellants –
DISCOMS were purchasing the power at the rate of Rs.3.82
per unit from HNPCL till 14th July, 2020. It is thus clear that
in view of the order passed by this Court on 21 st August,
2020, the appellants – DISCOMS were required to continue to
purchase the power from HNPCL at the rate of Rs.3.82 per
unit. Undisputedly, this has not been done. The reason
given for the same is that the appellants DISCOMS had
already filed an application for vacation of the order dated
21st August, 2020. By merely filing an application, the
appellants – DISCOMS could not have avoided abiding with
the order of the APTEL dated 16th March, 2018, as
maintained by this Court vide order dated 21 st August, 2020.
It is brought to our notice that though the appellants –
DISCOMS could have purchased the power from HNPCL at
the rate of Rs.3.82 per unit in view of the orders passed by
the APTEL and by this Court, they have chosen to purchase
the power at higher rate from various generators including
KSK Mahanadi from whom the power is being purchased at
the rate of Rs.4.33 per unit.
111. We ask a question to ourselves, as to whether public
interest, which is so vociferously pressed into service in the
present matter by the appellants – DISCOMS, lies in
purchasing the power at the rate of Rs.3.82 per unit from
HNPCL or by purchasing it at the rate of Rs.4.33 per unit
from KSK Mahanadi. We strongly deprecate such a conduct
of the appellants – DISCOMS, which are instrumentalities of
the State. The appellants – DISCOMS, rather than acting in
public interest, have acted contrary to public interest. For
defying the orders passed by this Court, we could very well
have initiated the action against the officials of the appellants
– DISCOMS for having committed contempt of this Court, but
we refrain ourselves from doing so.
112. In the result, the present appeal is dismissed with
costs, quantified at Rs.5,00,000/ (Rupees Five lakh only).
Pending I.As., if any, shall stand disposed of.
113. Taking into consideration that the issue before the
State Commission is pending since long, we direct the State
Commission to decide O.P. No.21 of 2015 and O.P. No.19 of
2016, as expeditiously as possible, and in any case, within a
period of six months from the date of this judgment.
114. Needless to say that till O.P. No.21 of 2015 and O.P.
No.19 of 2016 are decided by the State Commission, the
appellants – DISCOMS shall forthwith start purchasing the
power from HNPCL at the rate of Rs.3.82 per unit as per the
orders passed by the APTEL dated 16 th March, 2018 and by
this Court dated 21st August, 2020.
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On Wednesday, the Supreme Court held that the instrumentalities of the State cannot change a consistent stand taken by them, all of a sudden, at their whims and fancies, especially when it is arbitrary, irrational, unreasonable and against public interest. A Bench comprising Justices L. Nageswara Rao and B.R. Gavai rejected an appeal filed by power distribution companies assailing...
On Wednesday, the Supreme Court held that the instrumentalities of the State cannot change a consistent stand taken by them, all of a sudden, at their whims and fancies, especially when it is arbitrary, irrational, unreasonable and against public interest.
A Bench comprising Justices L. Nageswara Rao and B.R. Gavai rejected an appeal filed by power distribution companies assailing the order of Appellate Tribunal for Electricity, New Delhi which had directed the Andhra Pradesh Electricity Regulatory Commission to dispose of two applications filed by the parties before it. Displeased with the conduct of the appellants in the dispute the Court imposed a cost of Rs. 5,00,000 (five lakhs) on them.
"Undisputedly, the appellants – DISCOMS are instrumentalities of the State and as such, a State within the meaning of Article 12 of the Constitution of India. Every action of a State is required to be guided by the touchstone of nonarbitrariness, reasonableness and rationality. Every action of a State is equally required to be guided by public interest. Every holder of a public office is a trustee, whose highest duty is to the people of the country. The Public Authority is therefore required to exercise the powers only for the public good".
Factual Background
On 17.07.1992, vide a Memorandum of Understanding ("MoU") Andhra Pradesh State Electricity Board ("APSEB") transferred all licenses, approvals, clearance and permits, fuel linkage, water required for power project to Hinduja National Power Corporation Limited ("HNPCL"). On 09.12.1994, they entered into an initial Power Purchase Agreement ("PPA"). On 25.07.1996 the power project got clearance for an estimated cost of Rs. 4628.11 crores. The parties mutually agreed to amend the PPA and an amended PPA was executed on 15.02.1998. Until 2007, the project was in cold storage. In 2007, the promoters of HNPCL approached the Chief Minister of the State to revive the project as a Merchant plant, but the Government was interested in purchasing 100% of the power generated by HNPCL. Subsequently, the Central Power Distribution Company of Andhra Pradesh Limited had conducted bidding for procurement of power, HNPCL participated and successfully emerged as the second lowest bidder. But, the Bid Evaluation Committee, discarded its bid stating that HNPCL was to supply its entire capacity of power generated to the State Government. In a letter dated 26.12.2012, written to HNPCL, the State Government had expressed interest in purchasing 100% power from its power project. On 17.05.2013, the appellants, successors to APSEB and HNPCL entered into an MoA with HNPCL for continuation of the amended PPA. Pursuant to the MoA, HNPCL entered into an agreement with Mahanadi Coalfield Limited for supply of coal. Subsequently HNPCL filed an application before the Andhra Pradesh Electricity Regulatory Commission ("State Commission") for determination of capital cost of the power station. Thereafter, Telangana came into existence and it demanded 54% of the power from HNPCL's project. However, the Government of Andhra Pradesh insisted that it should be supplied 100% of the power and on 01.06.2016, it approved purchase of 100% power from HNPCL. On 11.05.2016, the appellants filed an application before the State Commission for approval of the Continuation Agreement which they eventually sought to withdraw. The same was permitted by the State Commission. The appeal filed by HNPCL challenging the withdrawal was eventually allowed by Appellate Tribunal for Electricity, New Delhi ("APTEL") and the State Commission was directed to dispose of the applications seeking determination of capital cost and approval of the Continuation Agreement.
Contentions raised by the appellants
Senior Advocate, Mr. C.S. Vaidyanathan appearing on behalf of the appellants argued that the APTEL was in the wrong to hold that the appellants could not have withdrawn the application filed by them for grant of approval of PPA as there is no provision in law to prohibit the same. He contended that APTEL had, in essence, granted the respondent a decree of specific performance of a contract which without the approval and prior consent of the State Commission was void ab initio. Moreover the direction of APTEL was contrary to the National Tariff Policy. The finding of APTEL pertaining to legitimate expectation was also assailed. Mr. Vaidyanathan asserted that the appellants cannot be compelled to purchase power at a higher rate than initially estimated.
Contentions raised by the respondent
Senior Advocates, Dr. Abhishek Manu Singhvi and Mr. M.G. Ramachandran appearing on behalf of HNPCL contended that the appellants were not entitled to withdraw application to the effect of frustrating the contract, more so, in view of the trite law that right to withdrawal is not absolute. It was averred that the State Government had on all occasions insisted HNPCL to supply 100% of the power to it and therefore, the argument of legitimate expectation holds water. It was pointed out that at present the appellants have chosen to purchase power at a much higher rate from other generators than what was determined in the interim order passed by APTEL.
Analysis by the Supreme Court
The Court noted that on perusal of several documents on record it is clear that the State Government had time and again insisted HNPCL to supply 100% power to it. It noted that from the year 2012 until it filed the application of withdrawal in 2018, it was the consistent stand of the Government and the appellants to purchase 100% power generated by HNPCL. Based on the assurance, HNPCL has also entered into a coal supply arrangement with Mahanadi Coalfield Limited. The Court was of the view that the conduct of the appellants disentitled them to withdraw the application. The Court refused to accept the argument that because the estimated cost of the project had increased, the tariff would increase, as it noted that the same is to be determined by the State Commission only after consulting the statutory provisions. It was noted that being instrumentality of the State, the appellants acts are to be tested on the touchstone of non-arbitrariness, reasonableness and rationality.
"Every action of a State is equally required to be guided by public interest. Every holder of a public office is a trustee, whose highest duty is to the people of the country. The Public Authority is therefore required to exercise the powers only for the public good."
Referring to the doctrines of 'legitimate expectation' and 'public interest' as elucidated in Kumari Shrilekha Vidyarthi And Ors. v. State of U.P. And Ors. (1991) 1 SCC 212, Food Corporation of India v. M/s. Kamdhenu Cattle Feed Industries (1993) 1 SCC 71 and Indian Oil Corporation Limited And Ors. v. Shashi Prabha Shukla And Anr. (2018) 12 SCC 85, the Court held that the appellants cannot be permitted to change the decision at their whims and fancies and, particularly, when it is adversarial to the public interest and public good, especially when it is arbitrary, irrational and unreasonable. The Court deprecated that the appellants at present were purchasing power from other generators at a higher rate and directed them to purchase power from HNPCL at the rate set out by the APTEL.
Case Name: Southern Power Distribution Power Company Limited of Andhra Pradesh (APSPDCL) And Anr. v. M/s. Hinduja National Power Corporation Limited And Anr.
Case No. and Date: Civil Appeal No. 1844 of 2020 | 2 Feb 2022
Corum: Justices L. Nageswara Rao and B.R. Gavai
Counsel for the appellant: Senior Advocate, Mr. Vaidyanathan; Advocate-on-Record, Mr. Mahfooz A. Nazki
Counsel for the respondent: Senior Advocates, Dr. Abhishek Manu Singhvi and Mr. M.G. Ramachandran; Mr Abhishek Sharma, Mr Shubham Arya and Ms Harshita Agarwal, Advocates, Mr. Alok Tripathi-AoR
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1. This appeal questions an order of the National Consumer Disputes
Redressal Commission,1 (hereinafter, “NCDRC”) which allowed the insurance
claim of Levi Strauss (India) Pvt. Ltd. (hereinafter, “Levi / insured / respondent”).
Prior to this order, United India Insurance Co. Ltd. (hereinafter, “insurer /
appellant”) had repudiated the policy issued to Levi.
2. The insurer issued to Levi a Standard Fire & Special Perils Policy
(hereinafter, “SFSP Policy”), for the period of 01.01.2007 to 31.12.2007. This
policy covered Levi’s stocks while in storage for the sum of ₹ 30 crores. Levi
obtained another SFSP Policy for the period of 01.01.2008 to 31.12.2008 on
similar terms. Meanwhile, the parent company of Levi (i.e., Levi Strauss & Co.)
had obtained a global policy from Allianz Global Corporate & Specialty
Digitally signed by Dr.
(hereinafter, “Allianz”) for the period of 01.05.2008 to 30.04.2009, covering
C.C. No. 213/2011, dated 01.08.2019.
stocks of all its subsidiaries, including Levi. The coverage through this stock
throughout policy (hereinafter, “STP Policy” or “foreign policy”) was for $10
million in any one vessel or conveyance, and $50 million in any one location.
The parent company also got another “all risks” policy (hereinafter, “AR Policy”)
issued by Allianz for the same period i.e., from 01.05.2008 to 01.05.2009
covering the stocks of its subsidiaries throughout the world being commercial
lines policy. The limit of liability of the AR Policy was up to $ 100 million.
3. During subsistence of all these policies, on 13.07.2008, a fire broke out in
one of the warehouses containing Levi’s stocks. On 18.07.2008, Levi claimed
₹12.20 crores from the insurer. The claim form furnished to the insurer on that
date valued extent of loss to be slightly higher at ₹ 12.5 crores. However, on the
instructions of the global insurer of the parent company, the Surveyor & Loss
Assessor Mr. K.P. Sen submitted a status report on 28.07.2008 provisionally
assessing the loss at a higher figure of ₹14.30 crores. The insurer i.e., the
appellant appointed its professional surveyor, Professional Surveyors and Loss
Adjusters Pvt. Ltd., for an assessment. The surveyor submitted the final Survey
Report dated 08.08.2009 assessing the net loss at ₹11.34 crores. The insurer’s
report recommended that it was not liable for the claim in view of Condition No.
4 in the SFSP Policy due to the policies issued by Allianz.
4. After considering the materials including Survey Report and the conditions
of the policies, the insurer repudiated Levi’s claim on 11.09.2009. The
repudiation letter stated as follows:
“The affected stocks in the present claim, at the hands of the logistics
provider would squarely fall within the scope of the aforesaid Marine cover,
in storage in the course of movement to retail locations.
Condition No.4 of the Fire Policy issued by us reads as under: -
“4. This insurance does not cover any loss or damage to
property which, at the time of the happening of such loss or
damage is insured by or would, but for the existence of this
policy, be insured by any marine policy or policies except in
respect of any excess beyond the amount which would have been
payable under the marine policy or policies had this insurance
not been effected."
The Fire Policy thus excludes liability for such loss payable
under marine policy, had the Fire Policy not been effected.
In view of coverage under the Companies Insurance Policy being a marine
cover, Condition No.4 of the Fire Policy is attracted and you have to recover
the loss from the marine policy.
In fact Clause 47 of the marine policy stipulates that "where the Assured....
Are obligated by legislation or otherwise to arrange insurance locality, they
shall continue to have the full benefits of these insurance in respect to difference
in perils insured:...."
Therefore, Clause 47 rather than excluding liability in such cases of local
Policy being available, agrees to pay where loss is not payable under such local
policy. The aforesaid clause is thus intended to operate even in respect of
property required to be insured locally, to the extent that the local policy may
not apply. In this case since the Fire Policy excludes liability where there is a
marine policy, it is a situation contemplated by Clause 47 and therefore marine
policy cannot refuse to answer the claim.
Accordingly, the Companies Insurance Policy being applicable to the
affected stocks and there is nothing to indicate that the extent of liability for
insurer thereunder would be less than the loss suffered, we have no liability
under the fire Policy issued by us.
We therefore regret our inability entertain the claim.”
The Complaint and Proceedings before NCDRC
5. Levi approached NCDRC with its complaint under Sections 21 and 22 of
the Consumer Protection Act, 1986 (hereinafter, “Act”). It alleged that in view
of Section 25 of the General Insurance Business (Nationalization) Act, 1972
(hereinafter, “Nationalization Act”) it was obligated to obtain a policy issued by
a domestic insurer to cover various risks, and that as a consequence, the condition
in Clause 47 of the STP Policy (which guaranteed coverage of the foreign policy
in the event that the insured was obliged to seek domestic policy) was met.
6. It was further argued that the SFSP policy was to cover loss exclusive of
$50 million inventory, which was the limit indicated in the STP Policy. Levi
alleged that claim repudiation on the ground that the risk was covered by the
global insurance policies (the STP Policy included) was contrary to Clause 41 (on
‘other insurance clauses’) of the STP Policy. In fact, Levi also argued that Clause
41 provided that if any fire insurance was specifically available to it, the STP
Policy would be void to the extent of such being available.
7. The insurer’s defence was that the SFSP Policy did not cover any loss or
damage to the property which at the time of the happening of such loss or damage
was insured, and which, but for the existence of the SFSP Policy, was insured by
any marine policy or policies except in respect of any excess beyond the amount
which would have been payable under such marine policy. The insurer argued
the fire policy issued by it, therefore excluded liability in respect of property
covered by marine policy. The further argument was that in Condition No. 4 of
the SFSP Policy, coverage under the marine policy i.e., the STP policy, was
excluded. It was submitted that Levi could (and did) recover loss from the STP
Policy. In this regard it was argued that Clause 47 of the STP Policy would
continue to cover the insured if the local laws or other conditions obligated the
insured (i.e., Levi) to arrange insurance locally. In the present case, it was
submitted that Levi was not obliged to secure a domestic policy.
8. The impugned order allowed Levi’s complaint. The NCDRC did not
finally decide whether the STP Policy was a marine policy. It held, on a
consideration of Clause 47 of the STP Policy, that to the extent of the insured risk
being covered by the domestic policy, coverage by the STP Policy stood
excluded. The impugned order was based on the reasoning that there was
difference in the perils insured and the conditions and / or limits of liability under
the domestic policy and the STP Policy. Therefore, the loss of profit which Levi
would have earned on sale of the damaged/destroyed cost was payable to it by
Allianz, whereas the loss suffered by Levi to the extent of the cost of those goods
would be reimbursable under the domestic policy issued by the insurer. After
noting that Levi had received $4.54 million (which, when converted into Indian
currency, worked out to be ₹ 19.52 crores), the claim was allowed to the extent
of ₹ 1.78 crores.
9. Mr. A.K. De, learned counsel appearing for the insurer argued that on a
reading of the STP Policy issued by Allianz, fire risk in question was covered by
virtue of the STP Policy being applicable whilst in transit and/or in store or
elsewhere, including whilst at retail locations. It was argued that the impugned
order erroneously interpreted Condition No. 4 of the SFSP Policy issued by it
(i.e., insurer) and Clause 47 of the STP Policy (issued by Allianz) to hold that the
loss caused to the goods was covered by the SFSP Policy, and loss of earnings of
Levi was covered by the STP Policy. It was argued that there was no basis either
in the pleadings or in the material on record to bear out this distinction.
10. It was pointed out that the NCDRC completely overlooked the fact that in
the claim form dated 18.07.2008, Levi specifically alleged that it suffered a loss
of ₹12.4 crores, and against this, received $4.54 million (equivalent to ₹ 19.52
crores) from Allianz. Clearly, on its own showing, Levi collected far more than
the actual loss admitted by it. It was also argued that the NCDRC erred in not
considering the facts of the case and in upholding Levi’s argument that the STP
Policy covered the loss sustained by virtue of loss of profit in addition to the cost
of goods destroyed, and that the SFSP Policy covered only loss. It was argued
that the loss suffered or included was a composite one which could not be
bifurcated in the manner that NCDRC was persuaded to, at the behest of Levi.
11. Mr. Joy Basu, learned senior counsel for Levi argued that by virtue of
Clause 47 of the STP issued by Allianz, the findings of the NCDRC were justly
warranted. It was urged that the primary obligation by law to arrange insurance
locally i.e., through a domestic insurer, reflected the statutory mandate which
arose in this case by virtue of Section 2(c)(b) of the Insurance Act, 1938
(hereinafter, “Act”) and Section 25 of the Nationalization Act. It was also urged
that arguendo, if it were to be held that there was no legal obligation,
nevertheless, Clause 47 contemplated other obligations by use of the term “or
otherwise”. In the present case, Levi was under a contractual obligation – in
addition to its obligation under Section 25 – to cover its risk under a domestic
policy. In such an event, by the virtue of Clause 47, the primary liability towards
the insured risk lay with the domestic insurer, i.e., the appellant.
12. It is submitted that if such a domestic policy had not been availed, there
would’ve been non-compliance of Clause 47 of the STP Policy which would have
entitled Allianz to repudiate any claim if and when made by the parent company
of Levi. It was further argued that Clause 47 of the STP Policy had to be read
harmoniously with Condition No. 4 of the SFSP Policy. The coverage under both
policies was envisioned to be mutually exclusive.
13. It was argued next that by virtue of Clause 47 of the STP Policy, the fire
incident cast liability upon the appellant insurer, and did not result in repudiation
of the SFSP Policy. It was submitted in this regard that the SFSP Policy contained
specific exclusions. Clause 9 of the General Exclusion condition was relied upon
to show that specific kinds of profit or earnings were excluded i.e., loss of profit
/ opportunity cost as being not payable under the domestic policy. Consequently,
all in direct losses stood excluded. Such a specific condition did not rule out other
kinds of loss of profits. It was urged that the primary aim or purpose of the SFSP
Policy was to cover all manner of losses arising out of insurable incidents of
different kinds. In this case that was fire; the only amount payable under the
SFSP Policy was relatable to loss. Undoubtedly, the SFSP Policy expressly
disassociated itself from loss other than manufacturing as a result of fire. That
was covered by the STP Policy. Consequently, there was no overlap between the
claims under the two policies.
14. It was argued that the insurer in its repudiation letter dated 11.09.2009 and
29.01.2010 specifically took a position with respect to liability, by holding that
Clause 47 was not intended to operate in respect of the property. It was therefore
argued that the insurer was liable to the extent of the local policy applicable.
Learned Counsel relied upon the decision of M/s. Galada Power and
Telecommunication Ltd. v. United India Insurance Co. Ltd2 to submit that the
insurer could not be allowed to travel beyond the grounds on which the claim was
repudiated by it. Therefore, the appellant could not be allowed to resist the claim
on the ground that it was payable under the AR Policy, even if it was not payable
under the STP Policy issued by Allianz.
15. Learned senior counsel urged that it was only after attaining full clarity on
the aspects of difference in conditions with regard to profit element and
manufacturing cost, and affording the insurer an opportunity to dispute and
question the same, did the NCDRC pass the impugned order, which assessed the
loss. It was argued that first, the NCDRC took the figures in terms of report of
the Domestic Surveyor appointed by it, who assessed gross cost of goods at ₹
12.59 crores. A sum of ₹ 88.57 lakhs was deducted from that for seconds goods
(after washing and drying); and cost of stock impacted by fire was assessed @ ₹
11.70 crores. Salvage of ₹ 36 lakhs was assessed by the Domestic Surveyor. It was
deducted, bringing the net loss to ₹ 11.34 crores. The NCDRC noted that Levi
claimed ₹ 9.08 crore in its complaint.
16. To reconcile the figures, NCDRC noticed the affidavit of Kevin Heston
Whelan and the Final Survey Report of the Foreign Surveyor, which found that
the Foreign Surveyor assessed salvage at ₹ 2.6 crores, i.e., higher than that
assessed by the Domestic Surveyor. If this salvage amount is deducted from the
figure of ₹ 11.70 crores instead, then the figure of ₹ 9.1 crores was payable to
Levi by the insurer (after deduction of policy excess of ₹ 10,000/-). It was urged
that in the alternative, NCDRC also assessed insurer’s liability on the basis of
assessment by the Global Insurer’s surveyor, which ultimately worked out to a
total figure of ₹ 27 crores. After deducting the sum of ₹ 19.52 crores, the balance
i.e., ₹ 7.48 crores was held payable by the insurer.
17. Counsel lastly urged that if the insurer’s interpretation of the SFSP policy,
as well as Clause 47 of the STP policy were to be accepted, the result would be
anomalous inasmuch as the SFSP policy would in effect result in no coverage. In
such case, the insurer would have collected the premia (which it undoubtedly did)
without any liability at all.
18. The first issue involved before the NCDRC was whether the STP Policy
was a marine policy. The NCDRC considered the stipulations in the policy,
having regard to Condition No. 4 in the SFSP Policy. However, it did not return
any positive finding that the STP Policy was a marine policy. Since the parties
have joined issues on this aspect, and made submissions, the issue has to be
decided, particularly in the context of the Condition No. 4 of the SFSP Policy and
provisions of law. It would therefore, be relevant to examine the provisions of the
Marine Insurance Act, 1963 in addition to other provisions. Section 3 of the Act
defines marine insurance. The expression “marine adventure” is defined by
Section 2(d). Similarly, “maritime peril” referred to in “marine adventure” is
defined in Section 2(e). Those definitions are extracted below:
(d) "marine adventure" includes any adventure where -
(i) any insurable property is exposed to maritime perils;
(ii) the earnings or acquisition of any freight, passage money, commission,
profit or other pecuniary benefit, or the security for any advances, loans, or
disbursements is endangered by the exposure or insurable property to maritime
(iii) any liability to a third party may be incurred by the owner of, or other
persons interested in or responsible for, insurable property by reason of
(e) "maritime perils" means the perils consequent on, or incidental to, the
navigation of the sea, that is to say, perils of the seas, fire, war perils, pirates,
rovers, thieves, captures, seizures, restraints and detainments of princes and
people, jettisons, barratry and any other perils which are either of the like kind
or may be designated by the policy..”
19. Section 4 clarifies that a contract of marine insurance may, by its express
terms, or by usage of trade, be extended so as to protect the assured against losses
on inland waters or on any land risk which may be incidental to any sea voyage.
The provisions of Marine Insurance Act are therefore subject to the terms of the
policy of insurance. Sections 3 and 4 read as follows:
“3. Marine insurance defined.—A contract of marine insurance is an
agreement whereby the insurer undertakes to indemnify the assured, in the
manner and to the extent thereby agreed, against marine losses, that is to say,
the losses incidental to marine adventure.
(1) A contract of marine insurance may, by its express terms, or by usage of
trade, be extended so as to protect the assured against losses on inland waters
or on any land risk which may be incidental to any sea voyage.
(2) Where a ship in course of building or the launch of a ship, or any adventure
analogous to a marine adventure, is covered by a policy in the form of a marine
policy, the provisions of this Act, in so far as applicable, shall apply thereto, but
except as by this section provided, nothing in this Act shall affect any rule of
law applicable to any contract of insurance other than a contract of marine
insurance as by this Act defined.
Explanation.—“An adventure analogous to a marine adventure” includes an
adventure where any ship, goods or other movables are exposed to perils
incidental to local or inland transit.”
Section 57 states that where the subject matter insured is destroyed, or so
damaged so as to cease to be a thing of the kind insured, or where the assured is
irretrievably deprived thereof, there is an actual total loss.
20. It is also relevant to note at this stage that Section 2 (13A) of the Insurance
Act, 1938 too defines “marine insurance” expansively. It reads as follows:
“(13A) “marine insurance business” means the business of effecting contracts
of insurance upon vessels of any description, including cargoes, freights and
other interests which may be legally insured, in or in relation to such vessels,
cargoes and freights, goods, wares, merchandise and property of whatever
description insured for any transit, by land or water, or both, and whether or
not including warehouse risks or similar risks in addition or as incidental to
such transit, and includes any other risks customarily included among the risks
insured against in marine insurance policies”
21. It is the consistent argument by Levi that the provisions of the
Nationalization Act obligate it to cover its risks through a domestic policy.
Section 25 of the Nationalization Act, is as follows:
"25. Properties in India not to be insured with foreign insurers except with
permission of Central Government.--
(1) No person shall take out or renew any policy of insurance in respect of any
property in India or any ship or other vessel or aircraft registered in India with
an insurer whose principal place of business is outside India save with the prior
permission of the Central Government.
(2) If any person contravenes any provision of sub-section (1), he shall be
punishable with imprisonment for a term which may extend to one year, or with
fine which may extend to one thousand rupees, or with both."
Relevant provisions of the STP policy and the SFSP policy
22. The relevant provisions of the STP Policy are extracted below:
Levi Strauss & Co. (and Majestic Insurance International Ltd. as a reassured
where applicable) and/or subsidiaries and/or associated and/or affiliated
controlled companies or corporations as may now exist or may hereafter be
formed or acquired, any companies or corporations over which the Assured
exercises management control and/or for whom they have authority to insure.
Hereinafter referred to as the Assured (For account of whom it may concern)
(1) In consideration of premium to be paid at rates to be agreed, insurance
herein covers all shipments of goods and/or merchandise of every kind and
description, (including, but not limited to, raw stock, materials, stock and
goods in process, finished goods and packaging materials), machinery,
equipment, spare parts and shipping containers, freight and all other interests
incidental to the Assured's business, lost or not lost, by any conveyance
including any connecting
conveyances between ports and/or places throughout the world, including
(2) This policy covers continuously while in transit, from the time of
commencement of transit until delivery to ultimate destination without
limitation of time (except as may be specifically excluded elsewhere herein)
notwithstanding the Warehouse to Warehouse Clause and Marine Extension
B. This insurance to cover all shipments, whether made by the Assured, or
its agents, or by others for its account or in which it may have an insurable
interest; also shipments belonging to others, which the Assured has
instructions, or is under obligation (whether by arrangements, understandings,
agreements or otherwise) or has a right to insure.
C. To take all insurances attaching hereto during the period from 1st May,
2008 to 30th April, 2009, both days inclusive, Local Standard Time, at the
place the shipment commences and, on all goods, and/or merchandise and/or
property in storage at locations insured under this policy.
Goods and/or merchandise and/or cargo of every description incidental to the
Assured's business as may be declared.
Consisting principally of, but not limited to, raw stock, materials, stock, goods
in process, finished goods etc. and similar property of others for which the
Assured is liable and/or duty and/or freight and/or insurance and/or interest
and/or advances and/or charges.
Coverage hereunder includes whilst in transit and/or in store or elsewhere,
including whilst at retail locations.
USD 10,000,000 any one vessel and/or conveyance USD 50,000,000 any one
location and in the aggregate per annum in respect of earthquake (first loss).
But in respect of Retail Locations USD 5,000,000 any one Retail Location and
in the aggregate per annum in respect of earthquake
This insurance attaches from the time the goods leave the warehouse at the
place named in the policy or certificate or declaration for the commencement
of the transit and continues until the goods are delivered to the final warehouse
at the destination named in the policy or certificate or declaration, or a
substituted destination as provided in Clause 7.B hereunder.
In case the interest hereby insured is covered by other insurance (except as
hereinafter provided) the loss shall be collected from the several policies in the
order of the date of their attachment, insurance attaching on the same date to
be deemed simultaneous and to contribute pro rata; provided, however, that
where any fire insurance, or any insurance (including fire) taken out by any
carrier or bailee is available to the beneficiary of this policy, or would be so
available if this insurance did not exist, then this insurance shall be void to the
extent that such other insurance is or would have been available.
It is agreed, nevertheless, that where these Assurers are thus relieved of
because of the existence of other insurance, these Assurers shall receive and
the premium payable under this policy and, in consideration thereof, shall
guarantee the solvency of the companies and/or underwriters who issued such
other insurance and the prompt collection of the loss hereunder to the same
extent (only) as these Assurers shall have been relieved of liability under the
terms of this clause, but not exceeding, in any case, the amount which would
have been collectible under this policy if such other insurance did not exist.
It is agreed that where the Assured or any of their Associated, Affiliated or
Companies or Partners are obligated by legislation or otherwise to arrange
insurance locally, they shall continue to have the full benefit of these
insurances in respect to difference in perils insured, definitions, conditions
and/or limits of liability.”
“Policy covers various loss or damage caused on account of fire (excluding
destruction or damage caused to the property insured by:
a) i) its own termination, natural heating or spontaneous combustion
ii) its undergoing any heating or drying process.
b) burning of property insured by order of any Public Authority.
“9. Loss of earnings, loss by delay, loss of market or other consequential or
indirect loss or damage of any kind or description whatever.”
Condition No. 4 which is material for the purpose of deciding this case is
“4. This insurance does not cover any loss or damage to property which, at the
time of the happening of such loss or damage, it insured by or would, but for
the existence of this policy, be insured by any marine policy or policies had this
insurance not been effected”.
24. The fire incident took place on 13.07.2008. Levi’s goods were stored in the
warehouse of Safexpress. There is no dispute that the fire incident was reported
immediately. On 22.07.2008 and 23.07.2008, the premises were visited by
authorized representative of Kaypsens & McLarens Young International,
Surveyor & Loss Assessor for final survey to value the loss caused by the fire at
the premises. They were nominated by Allianz. Pursuant to that visit, a Status
Report dated 28.07.008 was prepared setting out the details of the accident and
losses incurred. Subsequently the premises were once again inspected on
07.08.2008 and 08.08.2008, pursuant to which a Second Status Report was made
on 11.08.2008. In the meanwhile, on receipt of the fire accident intimation the
insurer appointed M/s Professional Surveyors and Loss Adjusters Pvt. Ltd. for
survey and assessment of loss submitted their final Survey Report on 08.08.2009.
The surveyor assessed the loss for ₹ 11.34 crores. So far as the claim’s
admissibility is concerned, the surveyor noticed the two policies issued by
Allianz, Clauses 41 and 47 of the STP Policy, and Condition No. 4 of the SFSP
policy, and stated that in its opinion the insurer “had no liability in respect of the
captioned claim, in view of the Global Marine Policy.” The relevant observations
a. The Insured's Parent Company M/s Levi Strauss & Co., has two Insurance
Policies, one Companies Marine policy covering the goods worldwide and
while at locations worldwide for storage, processing or packaging or
otherwise, on First Loss basis for an amount of USD 50,000,000 for any one
location, as. per Endorsement No: 2 - Storage/Inventory/Processing
Coverage. Clause 41 - Other Insurance Clause - also provides for pro-rata
contribution along with all other insurance-policies. This policy has been
taken from Allianz Global Risks.
b. The other Policy taken by the Parent is a Commercial Lines Policy from
Allianz Global Risks US Insurance Company. This policy also covers goods
worldwide upto a loss limit of USD 100,000,000/= per location. This Policy
also has a Standard Fire Bay Provisions Endorsement which mentions “Pro-
rata Liability”.
c. According to Condilion No: 4 of the SFSP Policy issued by UIC, “The
Insurance does nol cover any loss or damage to property which, at the time
of happening of such loss or damage, is insured by or would but for the
existence of this policy, be insured by any marine policy or policies except in
respect of any excess beyond the amount which would have been payable
under the marine policy or policies’ had this, insurance not been effected.”
d. Therefore, in our opinion, UIIC has no. lability in respect of the captioned
claim, in view of the Global Marine Policy.”
Eventually, the insurer, on 11.09.2009, repudiated the claim. In the meanwhile,
even before that event, on 18.07.2009, the insurer had intimated to Levi that by
virtue of Condition No. 4 of the SFSP policy, since the risk was covered by
another policy, that fact had to be considered.
25. The complaint before the NCDRC claimed the sum of ₹ 9.08 crores along
with interest @ 18% calculated from the date of claim to the date of payment. It
was in these proceedings, for the first time, that Levi disclosed that it received
amounts in satisfaction of its claims under the STP Policy issued by Allianz. It
was submitted that the position with regard to the losses incurred by Levi as on
date of the complaint was that the total inventory loss was $ 7.01 million. Under
the STP Policy issued by Allianz to Levi’s parent company, US $4.54 million had
already been paid to the parent company. Levi claimed that this was amount in
excess to the claim made by it under the SFSP Policy on “Difference in
Conditions” basis. Levi, therefore, claimed it was entitled to receive $ 1.97
million (~ ₹ 9.08 crores) under the SFSP Policy plus interest for inventory losses
caused by the fire. The insurer resisted, arguing that by virtue of a co-joint reading
of Condition No. 4 of the SFSP Policy, and Clause 47 of the STP Policy, it was
not liable.
26. NCDRC, in its impugned order, repelled the insurer’s contention, holding
firstly that Condition No. 4 could operate only if the other policy (i.e., one issued
by Allianz) was a marine policy. The NCDRC did not decide this issue. The
impugned order next held that by reason of Section 25 of the Nationalization Act,
Levi was obligated to cover its risks through a domestic policy and therefore the
condition in Clause 47 of the STP Policy, it was entitled to the full benefit of the
SFSP Policy. It was lastly held that the claimant was entitled to the amount of
loss constituting the difference between the pay out by Allianz and the value of
the goods.
27. In the light of the above facts, the first question which this Court has to
decide is regarding the nature of the STP Policy issued by Allianz. The insurer
asserts that it was a marine policy. However, the NCDRC has held otherwise.
28. This Court has, in a previous section of this judgment, noted relevant
provisions of the Marine Insurance Act. The expression “marine adventure” is
defined by Section 2(d). Similarly, “maritime peril” referred to in “marine
adventure” is defined in Section 2(e). Section 3 defines a marine policy; Section
4, which is relevant for this case, deals with mixed marine and land risks. It inter
alia, enables coverage – through “express terms, or by usage of trade” –
extension of marine policies “so as to protect the assured against losses on inland
waters or on any land risk which may be incidental to any sea voyage.”
29. In New India Assurance Co. Ltd. vs. Hira Lal Ramesh Chand & Ors3 this
court described a marine policy as follows:
“14. Marine Insurance is a contract whereby the insurer undertakes to
indemnify the assured in the manner and to the extent thereby agreed, against
marine losses, that is to say losses incident to marine adventure. The instrument
in which the contract of marine insurance is generally embodied is called a
policy. The thing or property insured is called the subject matter of insurance
and the assured's interest in that subject matter is called his insurable interest.
That which is insured against is the loss arising from maritime perils and
casualties, and these are called the perils insured against or the losses covered
by the policy. When the insurer's liability commences under the contract, the
policy is said to attach; or in other words, the risk is said to attach or to begin
to run from that time. A marine insurance cover applies to the shipment and if
the shipment reaches the destination, in a safe and sound condition, no claim
can arise against the insurer. A contract of marine insurance may, however, by
its express terms or by trade usage, be extended so as to protect the assured
against losses on inland waters or against any land risk which may be incidental
to a sea voyage. (Vide Sections 3 & 4 of Marine Insurance Act, 1963 and
Halsbury's Law of England, 4th Edition, Vol.25 paras 216 and 218).
30. Warehouse risks, combined with voyage and other marine risks, are
considered as part of marine insurance policies in India. This has been held in
Peacock Plywood Pvt. Ltd. v. The Oriental Insurance Co. Ltd4; United India
Insurance Co. Ltd. v Great Eastern Shipping Co. Ltd 5. In Hira Lal (supra), this
Court, after considering Section 4 of the Marine Insurance Act, held as follows:
“17. In view of the insurance cover extending `warehouse to warehouse' the
consignments are covered by insurance not only during the sea journey, but
beyond as stated in the policy. Therefore, the contention of the insurer that the
insurance cover is available only in regard to maritime perils that is perils
relating to or incidental to the navigation of the sea may not be correct. Having
regard to Section 4 of the Marine Insurance Act and the terms of the policy
undertaking insurance cover against wider risks, the policy of insurance would
cover the loss not only while goods or navigating the sea but also any loss or
damage during transit from the time it leaves the consignor's warehouse till it
reaches the consignee's warehouse. The cover against risks will however cease
on the expiry of 60 days after discharge of the consignment from the vessel at
the final port of discharge, if the goods do not reach the consignee's warehouse
or place of storage for any reason within the said 60 days.”
31. In the present case, the first two recitals of the STP Policy, as well as the
warehouse-to-warehouse transit (Clause 6) and other stipulations clearly state that
the policy covers both marine and other risks. An express condition is that
“Coverage hereunder includes whilst in transit and/or in store or elsewhere, including
whilst at retail locations.
USD 10,000,000 any one vessel and/or conveyance USD 50,000,000 any one
location and in the aggregate per annum in respect of earthquake (first loss).
But in respect of Retail Locations USD 5,000,000 any one Retail Location and
in the aggregate per annum in respect of earthquake.”
In fact, the STP describes itself as “OPEN MARINE INSURANCE
32. In view of these materials, it is clear that the STP Policy was a marine
policy which comprehensively covered voyage, transit, transportation and
warehouse perils. As can be seen from the description of the policy, and other
express stipulations, all kinds of risks, including marine risks were covered. In
fact, different limits for “retail locations” were provided; further Clause 6 also
extended to warehouse risks. In these circumstances, and having regard to the law
declared by this Court, what is material is not whether the insurable event
occurred during the voyage; rather, the focus is on the nature of the cover. The
cover in this case, clearly and unequivocally included marine perils. Therefore, it
was a marine cover.
33. Condition No. 4 of the SFSP Policy, which constituted a contract between
the parties, precisely contemplated a situation whereby in the event of occurrence
of an insurance risk, if Levi (or someone on its behalf, like in the present case the
parent company) was entitled to claim under a marine policy, the insurer was not
to be held liable.
34. In Export Credit Guarantee Corporation of India Ltd. v. Garg Sons
International6, this Court held:
“The insured cannot claim anything more than what is covered by the insurance
policy. The terms of the contract have to be construed strictly, without altering
the nature of the contract as the same may affect the interests of the parties
adversely. The clauses of an insurance policy have to be read as they are.
Consequently, the terms of the insurance policy, that fix the responsibility of the
insurance company must also be read strictly. The contract must be read as a
whole and every attempt should be made to harmonise the terms thereof,
keeping in mind that the Rule of contra proferentem does not apply in case of
commercial contract, for the reason that a Clause in a commercial contract is
bilateral and has mutually been agreed upon. (Vide Oriental Insurance Co. Ltd.
v. Sony Cheriyan [ (1999) 6 SCC 451], Polymat India (P) Ltd. v. National
Insurance Co. Ltd. (2005) 9 SCC 174], Sumitomo Heavy Industries Ltd. v.
ONGC Ltd. (2010) 11 SCC 296 and Rashtriya Ispat Nigam Ltd. v. Dewan
35. Similar views about the nature of insurance contracts and the principles of
their interpretation were expressed in Vikram Greentech India Ltd v New India
Assurance Co.7 and Sikka Papers Ltd v National Insurance Co8. It has been held
recently, in Impact Funding Solutions Ltd. v. Barrington Support Services Ltd.9
“As a matter of general principle, it is well established that if one party,
otherwise liable, wishes to exclude or limit his liability to the other party, he
must do so in clear words; and that the contract should be given the meaning it
would convey to a reasonable person having all the background knowledge
which is reasonably available to the person or class of persons to whom the
document is addressed... This applies not only where the words of exception
remove a remedy for breach, but where they seek to prevent a liability from
arising by removing, through a subsidiary provision, part of the benefit which
it appears to have been the purpose of the contract to provide.”
36. In the light of the above discussion, on a plain and reasonable construction
of Condition No. 4 of the SFSP policy, that once it is established that Levi – or
on its behalf, in this case, its parent company – was covered for the risk under a
marine policy, (the STP Policy) and was entitled to claim under it, the appellant
insurer’s liability was excluded. Therefore, on a plain construction of the terms
of the policy issued by Allianz, it was a marine policy. Therefore, Condition No.
4 operated to exclude the insurer’s liability.
37. Clause 47 of the STP Policy issued by Allianz stated that the assured (i.e.,
Levi’s parent company) “or any of their Associated, Affiliated or Companies or
Partners are obligated by legislation or otherwise to arrange insurance locally”.
38. The second question which arises for consideration is what is the meaning
of the term “obligated by legislation” This expression is an integral part of Clause
[2016] UKSC 57. This judgment was followed in New India Assurance Company Limited and Ors. vs. Rajeshwar
47 of the STP Policy. An overall reading of that condition bears out the intention
of the parties that regardless of whether domestic legislation in a particular
country mandates the taking out of a policy issued by local insurer, the global
insurer, i.e., Allianz would still continue to be liable. This is clear from the latter
part of the condition, “they shall continue to have the full benefit of this insurance
in reference to the difference in the insured, definitions, conditions and/or limits
of liability.”
39. It is clear that if and only if the insured, i.e., Levi, is obligated by law, i.e.,
required to have some form of mandatory insurance by virtue of express
provisions of law that the particular stipulation would operate to the extent of
‘difference’, Levi would be entitled to claim from Alliance. The expression
“obligated by law” has to be understood in the context as mandatory.
40. According to Stroud's Judicial Dictionary of Words and Phrases10:
"Obligation" is a word of his own nature of a large extent; but it is commonly
taken in the common law, for a bond containing penalty, with condition for
payment of money or to do or suffer some act or thing, etc. and a bill is most
commonly taken for a single bond without condition. The person bound is the
"obligor"; the other party is the "obligee". See Ryland Vs. Delisle L.R. 3 P.C 17
The word "obligation" primarily means a tie. Legally it was in origin the
binding tie established by what is called a "bond" as between obligor and
obligee. [Watkinson Vs. Hoolington (1944) K.B 16, 21 (Scott L.J.)]
"Oblige" :- A person is "obliged" to do a thing when placed in such
circumstances that he can scarcely help it; e.g. a constable who has been
suspended and on whom an inquiry has been ordered, and who thereupon sends
his resignation, has been "obliged to resign", within the rules of a pension fund
(Lapointe Vs. L'Association de Retraite, Montreal [1906] A.C. 535)”
P. Ramanatha Iyer’s Advanced Law Lexicon11 explains the term:
“"Obligate" means to bring or place under obligation; to bring or firmly hold
to an act.
"Obligated" means strictly, and in common parlance, to be bound.
Ninth Edition (2016) Vol. II pg. 1691.
"Obligatio" denotes not merely the passive duty imposed upon the obligor but
also the relationship between the obligor and the obligee such as that between
debtor and his creditor. It is that legal relationship subsisting between two
persons by which one is bound to the other for a certain performance.
"obligatio civilis" means an obligation enforceable by action, whether it derives
its origin from the jus civile, as the obligation engendered by formal contracts
or the obligation enforceable by bilaterally penal suits, or from such portion of
the jus gentium as has been completely naturalized in the civil law and protected
by all its remedies, such as obligation engendered by formless contracts.”
According to Black's Law Dictionary12:
"Obligation is a legal or moral duty to do or not to do something".
"Legal obligation" has wide and varied meanings. It may refer
to anything that a person is bound to do or forbear from doing,
whether the duty is imposed by law, contract, promise, social
relations, courtesy, kindness or morality.”
41. It is therefore evident from the above discussion that there should be a
mandate in law or in contract or by contract (which is covered by the expression
“or otherwise”). The argument on behalf of Levi was that Section 25 prohibits
the foreign insurers from taking or bringing any policy of insurance in respect of
any property in India and as a result it was compelled to take out the SFSP Policy.
If the plain meaning of the expression “obligated by law” or “obliged by law” is
to be understood, there should be an express requirement in law, which compels
the insured to obtain a policy. There are provisions in specific legislations in this
regard, such as the Motor Vehicles Act, 198813; the Merchant Shipping Act,
195814; Carriage by Air Act, 197215 and the Public Liability Insurance Act,
199116, etc. The conditions spelt out in these specific instances compel entities
and business to obtain specific kinds of insurance policies to cover particular
Section 4A read with Para 50, Chapter VI, Third Schedule to the Act.
Section 4 imposes a duty on owners of establishments involved in hazardous industries, to take out insurance
42. In this case, it is not Levi’s position that there exists any legislation which
compelled it to obtain insurance to cover risks which it sought to get covered by
the SFSP Policy. In this context, a mere prohibition in Section 25 of the
Nationalization Act clearly did not apply to Levi’s parent company, which
conducts business overseas (and not only in India) and obtain a marine cover
which catered to all risks, (including marine risks as well as risks to the goods in
transit and when they were warehoused). Therefore, the prohibition in Section 25
per se does not apply. Equally, there was no specific provision requiring Levi to
obtain a domestic policy, in the conduct of its business. The NCDRC, in this
Court’s opinion, was clearly wrong in holding that Clause 47 applied and it had
to be read in the way it was.
Interpretation of Clause 6 and 41 of STP Policy and Condition No. 4 of SFSP
43. As concluded in the first section of the analysis of this judgment, Condition
No. 4 of the SFSP Policy clearly excluded the insurer’s liability in the event Levi
could collect amounts under another insurance policy for the same risk. Clause 6
of the STP Policy as well as the recitals (noted earlier) point to the fact that a
comprehensive overall coverage was envisioned by Levi’s parent company. That
comprehensive risk included fire risks at the various warehouses where different
subsidiaries, including Levi (insured in this case) had stored its goods. The
surveyors appointed by Allianz, Mr. K.P. Sen, prepared and submitted two
reports. In the final report, according to the assessment made, two alternatives
were provided. In the first one, the value of the goods was affected by the fire
incidents after deduction for 2.5% for obsolete desktops and the value of net
realization of salvage at actuals was fixed at ₹ 11.10 crores. According to the
second alternative, which was on sale cost basis, again, after taking 2.5% for
obsolete/dead stocks and subtracting net realization of salvage value at actual
cost, the next cost at net sale basis was assessed at ₹ 15.30 crores. Initially, the
assessment (in terms of the documents placed on the record) was $3.60 million
as on 19.08.2008. This report took note of a plausible claim by Levi upon the
insurer. The subsequent supplementary report which provided global claims
services to Levi’s parent company dated 03.10.2008 indicated that “based on
present information”, it stated that the loss reserves should be increased to $4.5
million. It further stated that upon review, MYI calculation of inventory at
wholesale selling price loss salvage value was $6.85 million. In these
circumstances, finally, the sum of $ 4.54 million was paid out ($ 3 million plus
~$ 1.54 million).
44. A plain reading of Clause 41 of STP Policy shows that where fire insurance
or any insurance which was taken out by the carrier was available to the
beneficiary, i.e., Levi, or ‘would be so available’ if the STP did not exist, then a
claim under that policy, i.e., STP Policy would not be maintained and the
insurance would be void to that extent. There is nothing on the record to show
that any carrier or bailee in this case made a claim upon Alliance or any other
insurer to recover possible liability in furtherance of any policy. What has been
established from the record is that the sum of $4.54 million was in fact disbursed
to Levi as admitted liability by Allianz. In the circumstances, clearly, Condition
No. 4 of the SFSP Policy operated and excluded the appellant-insurer’s liability.
45. What is in issue in this present case has been characterized as “double
insurance”, i.e., where an entity seeks to cover risks for the same or similar
incidents through two different - overlapping policies. There is a wealth of
international jurisprudence on the various nuances of double insurance. Such
double insurance is per se not frowned upon in law. The courts however, adopt a
careful approach in considering policies which seeks to exclude liability on the
part of the insurer.
46. The celebrated commentary on insurance, Colinvaux’s Law of Insurance,
has this to say on double insurance - 17:
Pg. 12-130: General definition. Double insurance arises where two or
more independent insurers cover the same interest against the same risk,
that is, there is a common liability18.
As a matter of principle, it is clear that there cannot be double insurance unless
there is in existence more than on valid policy attaching to the same interest.
There is, for example, no double insurance where one policy is substituted for
another19. For there to be double insurance the policies need not be identical
but may cover different subjects and different risks as well as the risk covered
in common, but what is essential is that a common liability to indemnify the
same assured in respect of a specified loss must exist. The loss which more than
one insurer is liable to make good must be identical, so that payment of a claim
by one insurer will provide a co-insurer with a defence to a like claim against
it. In other words, two or more insurers must have insured the same assured in
respect of the same risk on the same interest in the same subject-matter.20
Pg. 12-131: Same assured and same interest Double insurance arises only
where both policies cover the subject-matter which has been the subject of the
loss. This is essentially a matter of construction of each of the policies. Thus, in
Baag v Economic Insurance Co Ltd21 it was held that a lorry-load of cigarettes
insured under an all-risks transit policy did not form part of the assured's stock
in trade at a factory at which the load had been temporarily stored, so that the
fire insurers of the factory were not liable to contribute towards payments made
by the all-risks insurers on the destruction of the factory and the load by fire.”
Pg. 12-132: Same assured and same interest. Generally, double insurance
arises where the same assured possesses two overlapping policies, although
there could potentially be double insurance where two assureds with the same
interest in the subject-matter insured that interest. It is more likely, however,
that different assureds will have different interests in the insured subject-matter,
and there is no double insurance in that situation because each assured is
insuring his own interest. Typical illustrations include concurrent interests in
Colinvaux’s Law of Insurance 12th edition Sweet & Maxwell (2019) Ed. Robert Merkin
See generally, Albion Insurance Co Ltd v GIO (NSW) (1969) 121 C.L.R. 342. In Equity Syndicate Management
Ltd v Glaxosmithkline Plc [2015] EWHC 2163 (Comm); [2016] Lloyd’s Rep. I.R. 155 a motor policy which by
its terms covered a claim by an employee driving a hired car was rectified to accord with the parties’ common
intention, so that the risk was borne solely by a policy designed to cover such risks and there was no double
Union Marine Insurance Co Ltd v Martin (1866) 35 L.J.C. P. 181. See also QBE Insurance (International) Ltd
v Allianz Australia Ltd [2018] NZCA 239, where the second policy was held to incept on the termination of the
first, so that there was no overlapping cover.
Portavon Cinema Co Ltd v Price & Century Insurance Co Ltd [1939] 4 All E.R. 601; North British & Mercantile
Insurance Co v London, Liverpool & Globe Insurance Co (1877) 5 Ch. D. 569. See also: Co-operative Bulk
Handling Ltd v SGIC (WA) (1990) 6 ANZ Ins Cas 60-992; Boys v Insurance General Manager [1980] 1 N.Z.L.R.
[1954] 2 Lloyd’s Rep. 581. Cf. QBE Insurance (Australia) Ltd v Westfarmers General Insurance Ltd [2010]
land held by vendor and purchaser,22 landlord and tenant,23 employer and
contractor, or mortgagor and mortgagee,24 and concurrent interests in goods
held by bailor and bailee.25 Equally, there is no double insurance between a
primary policy and a subsequent excess of loss policy26 or between a primary
policy and an increased value policy.27”
47. Similarly, Mac Gillvray on Insurance Law28 has this to say:
“There is high appellate authority29 for preferring the reasoning in the Eagle
Star case to that in Legal & General on the ground that an insurer should be
able to rely on policy defences to a claim by the assured in answer to a claim
for contribution. It is very respectfully submitted that Legal & General should
prevail. If an insurer can defeat a claim for contribution by reliance upon
defences to his liability to the assured arising after the loss, this will strike at
the foundations of the doctrine. First, once the first insurer has paid a complete
indemnity to the assured, the second insurer would be entitled to decline liability
to the assured on the ground that he has been fully indemnified30, although the
payment is the basis of the equity between the two insurers. Secondly, it would
be possible for the second insurer to defeat the claim for contribution by
agreeing with the assured to cancel the second policy after the first insurer had
paid a complete indemnity, contrary to the decision in O'Kane v Jones, The
48. In National Employers Mutual General Insurance Association v Haydon32,
‘S’, a firm of solicitors was insured by ‘P’ under a policy, renewable annually;
that policy excluded indemnification where the claimant was doubly insured. It
however covered claims arising after expiration, if due notice was given of the
likelihood of the claim before the policy expired. The claimant was later insured
Davjoyda Estates Pty Ltd v National Insurance Co of NZ Ltd (1965) 69 S.R. (NSW) 381.
Portavon Cinema v Price [1939] All E.R. 601.
Western Australian Bank v royal Insurance Co (1908) 5 C.L.R. 533.
Dickson Watch & Jewellery Co Ltd v Mow Tai Insurance & Reinsurance Co Ltd [1985] 1 H.K.C. 505
Pacific Employers Insurance Co v Non-Marine Underwriters 71 D.L.R (4th) 731 (1990); Steelclad Ltd v Iron
Mac Gillivray on Insurance Law Centenary Edition 2012 Sweet and Maxwell Page 759 (24-027)
Bolton MBC v. Municipal Mutual Insurance Ltd. [2007] Lloyd’s Rep IR 173 at [37] per Longmore L.J. Obiter,
stating that precedent did not oblige the CA to follow Legal & General Assurance Society v. Drake insurance Co.
Austin v. Zurich General Accident & Liability Insurance Co. [1945] KB 250 at 258; AMP Workers’
Compensation v. QBE Insurance [2001] NSWCA 267, stating – “The right of contribution cannot depend upon
the continued existence of co-ordinate liabilities for the same demand because the very payment which calls the
right into existence will have put an end to the liablility of the other insurance.”
O’Kane v. Jones, the Martin P [2004] 1 Lloyd’s Rep. 389, where the court held it was bound by precedent to
follow Legal & General Assurance Society v. Drake Insurance Co. [1992] QB 887 at [201]-[202].
by another insurer under a policy with similar double insurance provisions and
excluding cover for prior claims. S gave notice to P of a future claim in due time.
P claimed a contribution from D, on the ground that this claim was a case of
double insurance. It was held that
“Where each of two insurers agrees to an indemnity payable under one policy,
unless it is payable under another policy, neither insurer can prove that he is
not liable; therefore both insurers are liable and there is a true event of double
insurance. In my judgment, however, the principle of Weddell's case as to the
sharing of liability only applies if an indemnity is payable under both policies.
A clause of express absolution from one policy by reference to another only
applies if there is another policy which indemnifies against the same risk. If this
were not the case, an unfortunate insured could fail to recover against the first
insurer because of the existence of the second policy, but fail to recover under
the second policy because the risk had not been accepted by the second insurer.
If only one insurer is liable the insured can claim the whole.”
49. In the present case, the facts are that the only claim preferred by Levi with
the insurer on 18.07.2008 was for ₹ 12.2 crores. There is no material on the record
to show that during the subsistence of the policy issued by the parent insurer, it
was ever notified by Levi about the existence of the policy issued by Allianz. The
final report of the surveyors appointed by the appellant insurer assessed the total
loss at ₹ 11.70 crores. However, it also stated that as Levi’s parent company had
obtained another policy under which the loss was to be recovered, the claim was
inadmissible because of Condition No. 4 of the SFSP Policy. It is also a matter of
record that as against the claim of ₹12.2 crores made upon the insurer in this case,
Levi ultimately received equivalent of over ₹19 crores.
50. A contract of insurance is and always continues to be one for indemnity of
the defined loss, no more no less. In the case of specific risks, such as those arising
from loss due to fire, etc., the insured cannot profit and take advantage by double
insurance. Long ago, Brett LJ in Castettion v Preston33 said that:
“The contract of insurance … is a contract of indemnity, …, and this contract
means that the assured, in the case of a loss …, shall be fully indemnified, but
shall never be more than fully indemnified.”
51. Levi could not have claimed more than what it did, and not in any case,
more than what it received from Allianz. Its endeavour to distinguish between the
STP Policy and the SFSP Policy, i.e., that the former covered loss of profits, and
the latter, the value of manufactured goods, is not borne out on an interpretation
of the terms of the two policies. Even the facts here clearly show that Levi
received substantial amounts towards the sale price of its damaged goods, over
and above the manufacturing costs.
52. In view of the foregoing discussion, the appeal has to succeed; the
impugned order of NCDRC is hereby set aside. Levi’s complaint is dismissed;
consequently, the appeal is allowed.
|
The Supreme Court, recently, held that in cases of overlapping insurance policies, when the defined loss of the insured is fully indemnified by one insurer, the second insurer is not liable for the claim towards the same incident. "A contract of insurance is and always continues to be one for indemnity of the defined loss, no more no less. In the case of specific risks, such as...
The Supreme Court, recently, held that in cases of overlapping insurance policies, when the defined loss of the insured is fully indemnified by one insurer, the second insurer is not liable for the claim towards the same incident.
"A contract of insurance is and always continues to be one for indemnity of the defined loss, no more no less. In the case of specific risks, such as those arising from loss due to fire, etc., the insured cannot profit and take advantage by double insurance."
A Bench comprising Justices UU Lalit, S. Ravindra Bhat and P.S. Narasimha allowed appeal assailing the order of the National Consumer Disputes Redressal Commission (NCDRC), which directed the insurance company to pay Rs. 1.78 crores towards the claim raised by the insured. While opining that the insurance company was not liable to pay, the Apex Court noted that in the present case the issue was that of 'double insurance'/'overlapping policy', wherein the entity seeks coverage of risks of the same or similar incidents from two insurance policies.
Factual Background
United India Insurance Co. Ltd. (insurer) issued a Standard Fire and Special Perils Policy (SFSP Policy) to Levis Strauss (India) Pvt. Ltd. (insured) covering its stock in storage, first for a period of 01.01.2007 to 31.12.2007 and then 01.01.2008 to 31.12.2008. Levis Strauss & Co., the parent company of the insurer obtained a global policy (STP Policy) from Allianz Global Corporate & Speciality (Allianz) for the period of 01.05.2008 to 30.04.2009. It covered stocks of all its subsidiaries, including the insurer. Another 'all risks' policy (AR Policy) was issued by Allianz for the period of 01.05.2008 to 01.05.2009 covering stocks of its subsidiaries across the globe.
On 13.07.2008, fire broke out in one of the warehouses containing the stocks of the insured. On 18.07.2008, the insured claimed Rs. 12.20 crores from the insurer. Subsequently, on 11.09.2009, the insurer repudiated the claim stating that Condition No. 4 of the SFSP Policy, excludes liability for loss payable under marine policy i.e. STP Policy. The insured approached the NCDRC, which allowed its complaint, without deciding whether the STP policy was a marine policy. On perusal of Clause 47 of the STP Policy, it noted that the said policy excludes the extent covered by the domestic policy. It held that though the loss of profit which the insured would have earned on the sale of the damaged stock was payable by Allianz, the loss suffered to the extent of cost of the goods would be payable by the insurer. It allowed the claim to the extent of Rs. 1.78 crores as the insured had received 19.52 crores from Allianz.
Contentions raised by the appellant
Advocate, Mr. A.K. De, appearing on behalf of the insurer, submitted that the foreign policy, i.e., STP Policy covered fire risk to the stock while in transit and also in store and elsewhere. He assailed the interpretation of Condition No. 4 of the SFSP Policy and Clause 47 of the STP Policy by NCDRC to hold that loss caused to goods was covered by SFSP Policy while STP Policy covered loss of earnings. It was asserted that the loss suffered being a composite one could not have been bifurcated. Mr. De highlighted that the claim was for Rs. 12.4 crores, against which it received Rs. 19.52 from Allianz. Therefore, he argued that the insured had received more money than admitted loss.
Contentions raised by the respondent
Senior Advocate, Mr. Joy Basu, appearing on behalf of the insured, submitted that under Section 2(c)(b) of the Insurance Act, 1938 and Section 25 of the Nationalisation Act there is an obligation to arrange insurance through a domestic insurer. It was pointed out that the insured was under a contractual obligation to get its risk covered under a domestic policy and under Clause 47 of the STP Policy, the primary obligation was on the domestic insurer. He submitted that the coverage under the two policies were mutually exclusive - SFSP Policy expressly excluded loss other than manufacturing as a result of fire; which was covered by the STP Policy. If not so, then it would indicate that the insurer was collecting premia without any liability.
Analysis of the Supreme Court
STP Policy is a marine policy
Section 4 of the Marine Insurance Act, 1963 postulates that a contract of marine insurance may, by its express terms, or by usage of trade, be extended so as to protect the assured against losses on inland waters or on any land risk which may be incidental to any sea voyage. Referring to a catena of judgments, the Court noted that marine insurance policies in India include warehouse risks, combined with voyage and other marine risks. The STP policy also stipulates that it covers both marine and other risks. Moreover, the Policy describes itself as, 'Open Marine Insurance Contract'. It observed that the policy includes marine perils and is therefore a marine cover.
As per Condition No. 4 of the SFSP Policy, the insurer was not liable to pay
The Court noted that Condition No. 4 of the SFSP Policy stated that in the event of occurrence of an insurance risk, if the insured was entitled to claim under a marine policy, the insurer cannot be held liable. Relying on Export Credit Guarantee Corporation of India Ltd. v. Garg Sons International (2014) 1 SCC 686; Vikram Greentech India Ltd v New India Assurance Co. (2009) 5 SCC 599; Sikka Papers Ltd v. National Insurance Co (2009) 7 SCC 777; Impact Funding Solutions Ltd. v. Barrington Support Services Ltd. (2016) UKKSC 57, the Court was of the view that the party who wishes to limit its liability must do so in clear words and that the insured cannot claim more than what is covered by the insurance policy. On a strict interpretation of Condition No. 4, the Court held that the insurer had excluded its liability from the risk covered under a marine policy, which in this case was the STP Policy. The Court also noted that there was no statutory or contractual obligation on the insurer to obtain a domestic policy in the conduct of its business and therefore, NCDRC had erroneously applied Clause 47.
Double Insurance
The insured had raised a claim of Rs. 12.2 crores with the insurer. Against the claim of Rs. 12.2 crores, it had already received about Rs. 19 crores from Allianz. Considering the same, the Court observed that a contract of insurance is one for indemnity of defined loss. In case of specific risks the insured cannot profit by double insurance. In this regard Castettion v. Prestton (1833) 11 QBD 380 was referred to, which had held that in case of a loss, the insured would be fully indemnified, but shall never be more than fully indemnified. The Court opined -
"Levi could not have claimed more than what it did, and not in any case, more than what it received from Allianz. Its endeavour to distinguish between the STP Policy and the SFSP Policy, i.e., that the former covered loss of profits, and the latter, the value of manufactured goods, is not borne out on an interpretation of the terms of the two policies. Even the facts here clearly show that Levi received substantial amounts towards the sale price of its damaged goods, over and above the manufacturing costs."
Case Name: United India Insurance Co. Ltd. v. Levis Strauss (India) Pvt. Ltd.
Case No. and Date: Civil Appeal No. 2955 of 2022 | 2 May 2022
Coram: Justices UU Lalit, S. Ravindra Bhat and P.S. Narasimha
Headnotes :
Marine Policy - Section 4 of the Marine Insurance Act, 1963 - A contract of marine insurance may, by its express terms, or by usage of trade, be extended so as to protect the assured against losses on inland waters or on any land risk which may be incidental to any sea voyage - warehouse risks, combined with voyage and other marine risks, are considered as part of marine insurance policies in India(Paragraph 19).
Insurance Law - Exclusion of liability in insurance policies - as a matter of general principle, it is well established that if one party, otherwise liable, wishes to exclude or limit his liability to the other party, he must do so in clear words; and that the contract should be given the meaning it would convey to a reasonable person having all the background knowledge which is reasonably available to the person or class of persons to whom the document is addressed (Paragraph 19).
Insurance Law - Double Insurance - where an entity seeks to cover risks for the same or similar incidents through two different - overlapping policies - two or more insurers must have insured the same assured in respect of the same risk on the same interest in the same subject-matter - once the first insurer has paid a complete indemnity to the assured, the second insurer would be entitled to decline liability - in the case of specific risks, such as those arising from loss due to fire, etc., the insured cannot profit and take advantage by double insurance(Para 46 and 47).
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The legal issue which arises for consideration in the present
appeal is whether K. Veluswamy, as a Karta, has legal authority to
execute agreement to sell dated 8 th December 2006 for sale of the
suit land, being agricultural land – (i) Sy.No. 7/1P1, measuring 4
acres, 21 guntas of land; (ii) Sy.No. 7/1P2 measuring 5 acres of
land; and (iii) Sy.No. 8/3P3 measuring 2 acres of land, in all 11
acres 21 guntas of wet land, situated in Bagganadu Kaval Village,
Civil Appeal No. 7037 of 2021 Page 1 of 11
2. It is an accepted position that on 8 th December 2006, K.
Veluswamy as a Karta of the joint Hindu family had executed the
agreement to sell of the suit property for Rs.29 lakhs and had
received Rs.4 lakhs in advance from Beereddy Dasaratharami
Reddy, the appellant before us. K. Veluswamy, the second
respondent before us, has not entered appearance and contested
this appeal. The appeal is contested by the first respondent before
us, namely V. Manjunath, who is the son of K. Veluswamy. (For
convenience, K. Veluswamy and V. Manjunath, wherever required
have been collectively referred to the respondents).
3. On 26th November 2007, Beereddy Dasaratharmi Reddy instituted
the suit for specific performance of the agreement to sell
impleading both K. Veluswamy and V. Manjunath. The Court of
Senior Civil Judge, Hiriyur decreed the suit vide judgment dated
22nd January 2013 rejecting the defence that the agreement was a
camouflage for a loan agreement as K. Veluswamy was in need of
money for construction of a farm house. K. Veluswamy as the
Karta of the joint Hindu family property was entitled to execute the
agreement to sell, which agreement being on account of legal
necessity is valid.
Civil Appeal No. 7037 of 2021 Page 2 of 11
4. K. Veluswamy accepted the decision. His son V. Manjunath
preferred the regular first appeal before the High Court of
Karnataka at Bengaluru and vide the judgment under challenge
dated 6th March 2021 he has succeeded. The impugned judgment,
while accepting that K. Veluswamy did execute the agreement to
sell for the suit property for Rs.29 lakhs and had received Rs.4
lakhs as advance, held that the agreement to sell is un-
enforceable as the suit property belongs to the joint Hindu family
consisting of three persons, K. Veluswamy, his wife V.
Manimegala and his son V. Manjunath and, therefore, could not
have been executed without the signatures of V. Manjunath.
Relying on Pemmada Prabhakar and Others v. Youngmen’s
Vysya Association and Others,1 it was held that legal necessity
is not proved. Execution of the agreement to sell by K. Veluswamy
as a Karta of the joint Hindu family is held not established as no
issue on the aspect of authority of the Karta to execute agreement
to sell and legal necessity was framed. Consequently, it was held
that the suit must be dismissed.
5. The agreement to sell, which is an admitted document and
marked Exhibit P-1, it is accepted, was signed and executed by K.
Veluswamy and his wife V. Manimegala. P.B. Basavarajaiah,
Civil Appeal No. 7037 of 2021 Page 3 of 11
father-in-law of V. Veluswamy, had also signed the agreement to
sell. Payment of Rs. 4 lacs by Beereddy Dasaratharmi Reddy and
receipt of the said amount by K. Veluswamy as advance is also
not disputed. Remaining amount of Rs.25 lakhs was to be paid
within three months and the sale deed executed and registered.
The agreement to sell states that the subject property is a joint
Hindu family property, enjoyed jointly and that the Katha is in the
joint names. What is significant and important is the avowal by the
executants that they were in need of funds to meet the domestic
necessities and, consequently, had agreed to sell the suit
property. If any dispute arises with regard to the sale transaction, it
would be solved by the executants personally at their own risk and
cost. Lastly, if there was any loan, mortgage, revenue arrears, etc.
over the property, the same shall be cleared by the executants so
as to execute and register the sale deed in favour of Beereddy
Dasaratharami Reddy. The agreement to sell does mention that it
would be also executed by V. Manjunath, and it is a fact that it is
not signed and executed by him, but this, as discussed below,
would not nullify the rights and liabilities arising from the
agreement to sell.
6. Right of the Karta to execute agreement to sell or sale deed of a
joint Hindu family property is settled and is beyond cavil vide
Civil Appeal No. 7037 of 2021 Page 4 of 11
several judgments of this Court including Sri Narayan Bal and
Others v. Sridhar Sutar and Others,2 wherein it has been held
that a joint Hindu family is capable of acting through its Karta or
adult member of the family in management of the joint Hindu
family property. A coparcener who has right to claim a share in the
joint Hindu family estate cannot seek injunction against the Karta
restraining him from dealing with or entering into a transaction
from sale of the joint Hindu family property, albeit post alienation
has a right to challenge the alienation if the same is not for legal
necessity or for betterment of the estate. Where a Karta has
alienated a joint Hindu family property for value either for legal
necessity or benefit of the estate it would bind the interest of all
undivided members of the family even when they are minors or
widows. There are no specific grounds that establish the existence
of legal necessity and the existence of legal necessity depends
upon facts of each case. The Karta enjoys wide discretion in his
decision over existence of legal necessity and as to in what way
such necessity can be fulfilled. The exercise of powers given the
rights of the Karta on fulfilling the requirement of legal necessity or
betterment of the estate is valid and binding on other coparceners.
7. Elucidating the position in Hindu law, this Court in Kehar Singh
(D) through Legal Representatives and Others v. Nachittar
Civil Appeal No. 7037 of 2021 Page 5 of 11
Kaur and Others3 has referred to Mulla on Hindu Law and the
concept of legal necessity to observe thus:
“20. Mulla in his classic work Hindu Law while dealing
with the right of a father to alienate any ancestral
property said in Article 254, which reads as under:
254. Alienation by father.— A Hindu father as
such has special powers of alienating
coparcenary property, which no other
coparcener has. In the exercise of these
(1) make a gift of ancestral movable property
to the extent mentioned in Article 223, and
even of ancestral immovable property to the
(2) sell or mortgage ancestral property,
whether movable or immovable, including
the interest of his sons, grandsons and
great-grandsons therein, for the payment of
his own debt, provided the debt was an
antecedent debt, and was not incurred for
immoral or illegal purposes (Article 294).”
21. What is legal necessity was also succinctly said by
Mulla in Article 241, which reads as under:
241. What is legal necessity.—The following
have been held to be family necessities
(a) payment of government revenue and of
debts which are payable out of the family
(b) maintenance of coparceners and of the
Civil Appeal No. 7037 of 2021 Page 6 of 11
(c) marriage expenses of male coparceners,
and of the daughters of coparceners;
(d) performance of the necessary funeral or
(e) costs of necessary litigation in recovering
(f) costs of defending the head of the joint
(g) payment of debts incurred for family
business or other necessary purpose. In the
case of a manager other than a father, it is
not enough to show merely that the debt is a
The above are not the only indices for
concluding as to whether the alienation was
indeed for legal necessity, nor can the
enumeration of criterion for establishing legal
necessity be copious or even predictable. It
must therefore depend on the facts of each
case. When, therefore, property is sold in
order to fulfil tax obligations incurred by a
family business, such alienation can be
classified as constituting legal necessity.”
(See Hindu Law by Mulla “22nd Edition”)
26. Once the factum of existence of legal necessity
stood proved, then, in our view, no co-coparcener
(son) has a right to challenge the sale made by the
karta of his family. The plaintiff being a son was one of
the co-coparceners along with his father Pritam Singh.
He had no right to challenge such sale in the light of
findings of legal necessity being recorded against him.
It was more so when the plaintiff failed to prove by any
evidence that there was no legal necessity for sale of
the suit land or that the evidence adduced by the
defendants to prove the factum of existence of legal
Civil Appeal No. 7037 of 2021 Page 7 of 11
necessity was either insufficient or irrelevant or no
evidence at all.”
8. The aforesaid being the legal position, it has to be held that
signatures of V. Manjunath, son of Karta – K. Veluswamy, on the
agreement to sell were not required. K. Veluswamy being the
Karta was entitled to execute the agreement to sell and even
alienate the suit property. Absence of signatures of V. Manjunath
would not matter and is inconsequential. As noted above, it is an
accepted case of the respondents that K. Veluswamy did receive
Rs.4 lakhs as advance from Beeredy Dasartharami Reddy, as
recorded in the agreement to sell.
9. On the question of satisfaction of the condition of legal necessity,
the stand of the respondents is contradictory, for they have
pleaded in the written statement and even before us that the joint
Hindu family was in need of funds, which shows legal necessity. In
fact, as recorded above, the need for funds is duly reflected and
so stated in the agreement to sell dated 8 th December 2006 which
states that the executants were in need of funds to meet domestic
necessities and, therefore, had agreed to sell the suit property. It
is also an undisputed position that the suit property was
encumbered in favour of the State Bank of Mysore, Adivala
Branch, and the executants had informed that the dues of the
Civil Appeal No. 7037 of 2021 Page 8 of 11
bank would be cleared to release the mortgage before the date of
registration. In Kehar Singh (supra), on the question what is legal
necessity, reference was made to Article 241 from Mulla’s Hindu
Law which states that maintenance of coparceners, family
members, marriage expenses, performance of necessary funerals
or family ceremonies, costs of necessary litigation for recovering
or preserving estate, etc. fall and have been held to be family’s
necessities. Further, the instances are not the only indices for
concluding whether the alienation was in need for legal necessity
as enumeration on what would be legal necessity is unpredictable
and would depend upon facts of each case. Thus, we are of the
opinion that the agreement to sell cannot be set aside on the
ground of absence of legal necessity.
10. Decision of this Court in Pemmada Prabhakar (supra) has no
application, being a case of intestate property inherited by wife,
three sons and three daughters as class I heirs under Section 8 of
the Hindu Succession Act and the agreement to sell was not
signed by wife, one son and three daughters and, therefore,
neither binding nor enforceable against the non-executants. The
ratio would not apply to a joint Hindu family property.
Civil Appeal No. 7037 of 2021 Page 9 of 11
11. Omission to frame an issue as required under Order XIV Rule 1 of
the Code of Civil Procedure, 1908 does not vitiate the trial where
the parties go to trial fully knowing the rival case and lead
evidence in support of their respective contentions and to refute
contentions of the other side (See – Kannan (Dead) by LRs. and
Others v. V.S. Pandurangam (Dead) by LRs. and Others 4 and
Nedunuri Kameswaramma v. Sampati Subba Rao5).
12. We are informed that during the pendency of the present appeal,
the suit property has been transferred to a third person, which
transfer would obviously be subject to and hit by the doctrine of lis
pendens. Therefore, once we set aside the impugned judgment
and restore the judgment of the trial court, the respondents would
be bound to perform their obligations under the agreement to sell
dated 8th December 2006 and execute the registered sale deed,
notwithstanding any transaction which the respondents have
executed.
13. In light of the aforesaid discussion, we allow the present appeal
and set aside the impugned judgment and decree and restore the
judgment and decree passed by the trial court. The appellant
would deposit the balance sale consideration of Rs.25 lakhs in the
Civil Appeal No. 7037 of 2021 Page 10 of 11
trial court within a period of eight weeks from today, which amount
once deposited would be kept in an interest bearing fixed deposit
and would be handed over/paid to K. Veluswamy, Karta of the joint
Hindu family at the time of execution of the sale deed by him in
favour of the appellant/Beereddy Dasartharami Reddy. The
appellant/Beereddy Dasartharami Reddy will also bear necessary
expenses like stamp duty, registration charges for execution of the
sale deed. Physical possession of the property would be handed
over by the respondents to the appellant/Beereddy Dasartharami
Reddy along with the execution of the sale deed, notwithstanding
that the suit property has been sold to a third person during the
pendency of the present appeal.
14. The appeal is disposed of in the above terms without any order as
to costs.
Civil Appeal No. 7037 of 2021 Page 11 of 11
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Where a Karta has alienated a joint Hindu family property for value either for legal necessity or benefit of the estate it would bind the interest of all undivided members of the family even when they are minors or widows, the Supreme Court observed in a judgment.In this case, K. Veluswamy as a Karta of the joint Hindu family executed the agreement to sell of the suit property for Rs.29 lakhs...
Where a Karta has alienated a joint Hindu family property for value either for legal necessity or benefit of the estate it would bind the interest of all undivided members of the family even when they are minors or widows, the Supreme Court observed in a judgment.
In this case, K. Veluswamy as a Karta of the joint Hindu family executed the agreement to sell of the suit property for Rs.29 lakhs and had received Rs.4 lakhs in advance from Beereddy Dasaratharami Reddy. Beereddy Dasaratharmi Reddy instituted the suit for specific performance of the agreement to sell impleading both K. Veluswamy and V. Manjunath (son of Veluswamy). This suit was decreed by the Trial Court.
Manjunath preferred first appeal before the High Court contending that the agreement to sell is unenforceable as the suit property belongs to the joint Hindu family consisting of three persons, K. Veluswamy, his wife V. Manimegala and his son V. Manjunath and, therefore, could not have been executed without the signatures of V. Manjunath. The High Court held that the execution of the agreement to sell by K. Veluswamy as a Karta of the joint Hindu family is not established as no issue on the aspect of authority of the Karta to execute the agreement to sell and legal necessity was framed.
The Apex Court bench comprising Justices MR Shah and Sanjiv Khanna noted that a joint Hindu family is capable of acting through its Karta or adult member of the family in management of the joint Hindu family property.
"A coparcener who has right to claim a share in the joint Hindu family estate cannot seek injunction against the Karta restraining him from dealing with or entering into a transaction from sale of the joint Hindu family property, albeit post alienation has a right to challenge the alienation if the same is not for legal necessity or for betterment of the estate. Where a Karta has alienated a joint Hindu family property for value either for legal necessity or benefit of the estate it would bind the interest of all undivided members of the family even when they are minors or widows. There are no specific grounds that establish the existence of legal necessity and the existence of legal necessity depends upon facts of each case. The Karta enjoys wide discretion in his decision over existence of legal necessity and as to in what way such necessity can be fulfilled. The exercise of powers given the rights of the Karta on fulfilling the requirement of legal necessity or betterment of the estate is valid and binding on other coparceners.", the court said.
Thus the court held that signatures of V. Manjunath, son of Karta K. Veluswamy, on the agreement to sell were not required. "K. Veluswamy being the Karta was entitled to execute the agreement to sell and even alienate the suit property. Absence of signatures of V. Manjunath would not matter and is inconsequential. ", the court added.
While allowing the appeal, the bench referred to Kehar Singh (D) v. Nachittar Kaur (2018) 14 SCC 445 and said:
"In Kehar Singh (supra), on the question what is legal necessity, reference was made to Article 241 from Mulla's Hindu Law which states that maintenance of coparceners, family members, marriage expenses, performance of necessary funerals or family ceremonies, costs of necessary litigation for recovering or preserving estate, etc. fall and have been held to be family's necessities. Further, the instances are not the only indices for concluding whether the alienation was in need for legal necessity as enumeration on what would be legal necessity is unpredictable and would depend upon facts of each case. Thus, we are of the opinion that the agreement to sell cannot be set aside on the ground of absence of legal necessity"
Case name: Beereddy Dasaratharmi Reddy vs V. Manjunath
Case no. and Date: CA 7037 OF 2021 | 13 Dec 2021
Coram: Justices MR Shah and Sanjiv Khanna
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No. 17238 of 1988.
IN Writ Petition Nos.
630 632 of 1984.
(Under Article 32 of the Constitution of India).
Shanti Bhushan and P.D. Sharma for the Petitioner.
G.L. Sanghi, Mahabir Singh, Rana Ranjit Singh, Srinivas Choudhary, S.K. Mehta and G.K. Bansal for the Respondents.
The Judgment of the Court was delivered by NATARAJAN, J.
This Civil Miscellaneous Petition has been filed with a prayer for appropriate directions being issued to the State of Haryana as under: (a) Issue appropriate directions to the respondents No. 1 and 2 1082 to implement the judgment and order dated 17.12.86 and carry out the directions issued by way of writ of mandamus as prayed to this Hon 'ble Court in its full spirit giving effect to the promotion orders dated 30.12.87, from back dates (deemed dates) or the dates when their juniors were promoted.
(b) Further issue suitable directions to the Respond ents No. 1 and 2 to allow other consequential benefits viz. fixation of pay from deemed dates, payment of arrears, pension and gratuity benefits to all officers figuring in list dated 27.10.85 irrespective of their retirement prior to the order of promotions dated 30.12.87 pronouncement.
(c) Give effective relief to the petitioner Shri Mohinder Singh Kundu in full, irrespective of his retire ment.
(d) Any other suitable orders or directions as this Hon 'ble Court may deem fit and proper in the facts and circumstances set out in the present petition.
To understand the grievance of the petitioners, it is necessary to set out the back ground material and the pro nouncements made in T.R. Kapoor vs State of Haryana, ; and Ashok Gulati vs B.S. Jain, ; in favour of the petitioners.
The petitioners who are Diploma holders initially joined the Class III Engineering Service of the Punjab State in the early fifties and were promoted to Class II service as officiating S.D.Os in the middle sixties and in the case of some of them the said temporary promotion was even earli er.
By a Notification dated 27.10.1985 the petitioners and other similarly situated persons were regularly constituted as Class II service officers with effect from 25.12.1970.
Further avenues of promotion to them were barred because the State Government construed the Service Rules to mean that without a degree in Engineering, a Class II officer cannot be promoted to Class I service.
The said interpretation of the Service Rules was disapproved by this Court in A.S. Parmar vs State of Haryana, [1984] 2 SCR 476.
By reason of that judgment, it followed that a degree in Engineering was not an essential pre requisite for a member of Class II service being promoted to the Class I service.
1083 After the judgment in A.S. Parmar 's case (supra) was rendered, the petitioners filed Writ Petitions under Article 32 of the Constitution seeking writs of mandamus to the State Government to consider the case of the petitioners and the like of them for promotion to the posts of Executive Engineers in Class I service.
On 24.2.1984 an undertaking was given to the Court that the State would consider the claims of all the eligible persons including the petitioners for regular appointment to Class I service and that the exercise would be completed within four months time.
Howev er, two days before the expiry of the said period of four months, the State Government brought an amendment to the Rules with retrospective effect from 10.7.64 so as to make a degree in Engineering an indispensable qualification for an officer in Class II service being promoted to Class I serv ice.
Dismayed by the action of the State Government, the petitioners amended their writ petitions suitably and chal lenged the validity of the amendment to the Rules.
After considering the matter in detail, this Court delivered judgment on 17.12.1986 striking down the impugned amendment to the rules as ultra vires the State Government and in a connected appeal C.A. No. 149 of 1981 Ashok Gulati (supra) this Court directed the State Government to consider the cases of all eligible members of Class II service for promo tion to the post of Executive Engineer in Class I service in accordance with law and to complete the process of .appoint ment within six months ' time.
As the State Government failed to give effect to the said directions within the allotted time of six months, the petitioners filed a contempt petition C.M.P. No. 15430 of 1988 against the State.
In reply to the contempt petition, the State Government stated that the delay in the implemen tation of the Court 's order was due to the stupendous nature of the work involved in the fixation of seniority of more than four hundred officers, their promotions, reversion, claims, and counter claims and their deemed promotions etc.
After taking note of the said explanation, this Court di rected the State to expedite the matter and to complete the process of promotion of Class II officers to class I service within a period of two 'months and ordered the contempt petitions to be listed in the first week of January 1988.
When the contempt petition came up before Court on 4.1.1988, it was represented on behalf of the State Government that the Court 's directions have been complied with and orders of promotion have been issued to the petitioners on 30.12.87 itself.
Acting on 1084 the said representation, this Court passed the following order and discharged the notice in the contempt petition: "in view of this Court 's order dated 17th December, 1986 and the order dated 12th Octo ber, 1987, the officers concerned have been promoted by an order dated 30th December, 1987 and we presume that they will now be posted in consequence of that promotion.
We hope and trust that the State of Haryana will pass posting orders expeditiously.
The Civil Mis cellaneous Petition is disposed of according ly".
It is thereafter the petitioners have come forward with this application for directions.
The contention of the petitioners is that since their placement in Class II serv ice had been made effective with effect from 25.12.1970, though the order therefore was issued on 27.10.1985, they were entitled to be considered for promotion to Class I service as and when they attained eligibility after 25.12.1970 especially in view of the judgment in A.S. Par mar 's case (supra) which held that a degree in Engineering was not an essential pre requisite for members of Class II service being promoted to posts in Class I service.
It is, therefore, stated by the petitioners that in all fairness they must be placed in their rightful position by being given promotion "from back dates or deemed dates or, in any case, the dates when persons junior to them were promoted." According to the petitioners their juniors were given promo tions in the years 1963, 1969, 1970, 1971, 1973, 1976 and 1978.
The petitioners blame the State Government for their non promotion because of the delay in preparing the seniori ty list of Class II officers till 1985 and for closing the doors of promotion to them by wrong interpretation of the Rules and thereafter by making a wrongful amendment to the rules till judgments were rendered in T.R. Kapoor 's case (supra) and Ashok Gulati 's case (supra) on 17.12.1986.
The petitioners would therefore contend that the promotions given to them belatedly on 30.12.1987 do not render full justice to them and the said order is also not fully in compliance with the directions given by this Court in the judgments rendered in the two cases on 17.12.86.
Yet another grievance put forth is that the Government has not given relief to those Class II officers who have retired from service prior to 30.12.1987.
The petitioners therefore seek further directions being issued to the State Government to give them and other similarly placed officers besides those who have already retired from service the benefit of promo tion with effect from back dates or deemed dates as per theft entitlement or atleast from the dates when persons junior to 1085 them were promoted together with all the consequential benefits arising therefrom.
In reply to the petition for directions, three counter affidavits have been filed on behalf of the State of Har yana, one by Shri H.D. Bansal, Financial Commissioner and Secretary to Government, Irrigation & Power Department and the second by Shri H.K. Khosla, Engineer in Chief, Irriga tion Department.
In both the counter affidavits it has been stated that the State has fully complied with, the direc tions of the Court by giving promotion to all the petition ers by order dated 30.12.87 and that the Court, in approval of the action of the Government as proper compliance to the directions given on 17.12.1986, dropped further proceedings in the contempt petition and as such there is no basis for the petitioners to seek further directions from the Court.
The third counter affidavit dated 14.10.88 has been filed by Shri Raj Rup Fuliya, Deputy Secretary to Government of Haryana, Irrigation and Power Department.
Therein the stand taken is that since the petitioners had acquiesced in the interpretation of the Service Rules by the Government till they filed the writ petitions, the petitioners are not entitled to claim promotional benefits with reference to their service in Class II posts from 1970.
It is further stated that in the judgments rendered in T.R. Kapoor vs State of Haryana, (supra) and Ashok Gulati vs B.S. Jain, (supra), this Court had not directed that promotions should be given to the petitioners from back dates or deemed dates or from the dates their juniors were promoted to Class I Service.
Likewise, it is stated that the Court had not directed the State to give the benefit of promotion to per sons who have already retired from service.
The petitioners have controverted the averments in the counter affidavits by means of a rejoinder and have reiter ated their claim for promotion from anterior dates.
In turn Shri Raj Rup Fuliya, Deputy Secretary to the Government has filed a supplemental counter 'affidavit to the rejoinder filed by the petitioners.
In the light of the conflicting stands taken by the parties, it falls for consideration whether the petitioners are entitled to the benefit of promotion from anterior dates i.e. from deemed dates of promotion or from the dates their juniors were promoted as claimed by them or whether the promotions given to them on 30.12.87 by the Government amounts to grant of full relief to the petitioners as per this Court 's judgments dated 17.12.86.
1086 Taking up for consideration the contention of the peti tioners that by reason of their being constituted Class II Officers with effect from 25.12.70, they were entitled to promotion as and when they attained seniority, but the State Government had unjustly deprived them the benefit of promo tion due to wrong interpretation of the Rules, we are unable to accept the plea for more than one reason.
In the first place, the petitioners had acquiesced in the interpretation of the Rules by the State Government all along and it was only after the decision in A.S. Parmar 's case, they chose to move this Court under article 32 of the Constitution to seek promotional benefits.
Having remained complacent for a long number of years, the petitioners cannot now turn round and say that notwithstanding their inaction, they should be granted promotion from deemed dates on the basis of seniori ty.
Secondly, in the long interval of time that had elapsed before the petitioners chose to file the writ petitions, several o*her Class II Officers holding engineering degrees have been promoted to Class I Service.
The benefits which had accrued to those persons by reason of their promotions cannot now be disturbed or interfered with by giving the petitioners promotions from deemed dates of eligibility for promotion.
In other words, a settled state of affairs among the Class I Promotees cannot be unsettled now.
As already stated, during the pendency of the writ petitions, the State Government gave an undertaking on 24.2.1984 that they would consider the claims of the peti tioners for promotion to Class I service and pass orders in four months ' time.
Subsequently, the State Government went back on its representation and brought about an amendment with retrospective effect to the Rules so as to make a degree in engineering an essential qualification for promo tion to Class I service.
This amendment was struck down by this Court in T.R. Kapoor 's case and it was observed as follows: "Presumably, the State Government adopted this unfortunate course of action taking cue of the observations made by this Court in the con cluding part of the judgment in A.S. Parmar 's case saying that if the Government wish to appoint only persons having a degree in Engi neering to Class I service, it was free to do so by promulgating appropriate rules and that the power to frame such a rule was beyond question.
But the Court never laid down that such a rule may be framed under article 309 of the Constitution with retrospective effect so as to render ineligible Class II officers like the petitioners who were Diploma holders 1087 for further promotion as Executive Engineers in Class I service.
In view of the clear formulation of law interpreting r. 6(b) of the Class I Rules holding that a degree in Engi neering was not an essential qualification for promotion of Class II Officers to the cadre of Executive Engineers in Class I service, there was no occasion for the State Government to issue the impugned notification unless it was with the object of nullifying the decision of this Court in A.S. Parmar 's case".
After thus disapproving the Government 's action, this Court gave directions to the State Government in the connected appeal Ashok Gulati vs B.S. Jain, (supra) to consider the claims of all the eligible Class II officers for promotion to Class I service without reference to their possessing a degree in Engineering.
It is bearing in mind these factors the question whether the promotions granted to the petition ers with effect from 30.12.1987 amounts to sufficient com pliance of the directions of the Court dated 17.12.1986 has got to be examined.
Inasmuch as the petitioners had not asked for mandamus being issued for promotion them to Class I posts from ante rior dates on deemed basis or with reference to the promo tions given to junior persons, and since even if such a prayer had been made, the relief would not have been given for the reasons set out above, this Court appropriately called upon the Government to consider the case of all eligible members of Class II service for promotion to the post of Executive Engineer in Class I service in accordance with law and to complete the process of appointment within six months time.
The direction therefore enjoined the Gov ernment to give promotion to all Class II officers who were eligible for promotion to Class I service after Rule was issued in the writ petitions.
Even before the direction was issued, the Government had conceded the position and that was why the Government had asked for four months time through its counsel to consider the case of all eligible Class II officers and give them promotion.
The combined effect of the striking down of the amend ment to the Rules by the Government and the direction issued to the Government in Ashok Gulati 's case (supra) to consider for promotion the names of all the eligible Class II offi cers would entitle the petitioners to seek the benefit of promotion from 24.6.1984 when the time limit of four months sought for by the State Government to make the promotions came to expire.
But for the unsustainable amendment made to 1088 the Rules, the Government could not have postponed the promotion of the petitioners and other Class II officers similar to them beyond the time limit of four months which expired 24.6.1984.
It would therefore follow that the order of promotion made by the State Government on 30.12.
1987 will not amount to due compliance of the Court 's directions dated 17.12.1986.
The Government cannot take advantage of its own error in making an illegal amendment to the Rules with retrospective effect and postpone the benefit of promo tion to Class II officers.
The Government cannot also take umbrage for its action in giving promotion to the petitioners and other eligible Class II officers with effect from 30.12.1987 either because the directions given on 17.12.1986 did not set out the date from when promotions should be given or because the Court passed orders on 4.1.1989 dropping further proceedings in the contempt petition.
As regards the directions issued on 17.12.1986 to the State Government to give promotions to the Class II officers in accordance with law, they must be construed with reference to the observations made in T.R. Kapoor 's case (supra) that the amendment to the Rule with retrospective effect by the Government "was with the object of nullifying the decision of this Court in A.S. Parmar 's case".
Viewed thus, the Government 's action in giving promo tions to the petitioners and others belatedly on 30.12.1987 cannot be construed as due compliance of the Court 's direc tions.
Once that conclusion is reached the question would then be as to from which date the Government should have given promotions to the petitioners and others in accordance with the directions of the Court.
The latest point of time in which the Government could not and should have given promotions would be the date on which the four months ' time prayed for by the Government on 24.2.1984 to give promotions to the eligible Class II officers came to an end.
The said period on 24.6.1984 and the Government cannot escape its obligation to give promotions to the officers in question with effect from that date.
In so far as the order passed in the contempt applica tion on 4.1.
1988 is concerned, it is needless to say that this Court did not go into the question on that day as to whether the order of promotion passed on 30.12.1987 was in full compliance or only in partial compliance of the Court 's order dated 17.12.1986.
In fact it is the grievance of the petitioners that the State Government did not communicate to them the orders passed on 30.12.1987 and therefore they had no opportunity to state before Court on 4.1.1988 that the Government had acted mala fide in granting them promotion only with effect from 30.12.1987 and that the said order had been passed only to escape 1089 the consequences of the contempt petition and not for ful filling the directions given by the Court on 17.12.1986 to promote all eligible persons in accordance with law.
We, therefore, direct the State Government to give promotion to all eligible Class II officers with effect from 24.6.1984 and to give them all the consequential benefits arising therefrom.
The benefits of promotion and consequen tial benefits should also be given to all those officers who were eligible for promotion on 24.6.1984 but who have re tired since then.
The Government shall complete the exercise in two months ' time from today.
To this extent the petition for directions will stand or dered.
No costs.
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This is an application filed by the Petitioners seeking directions of the Court for implementation of this Court 's order dated 17.12.86 in its true spirit, in particular, praying that the promotion orders dated 30.12.87 be given effect from the back dates (deemed dates) or the dates when their juniors were promoted.
The circumstances that led to the filing of this application may be stated thus.
The Petitioners were members of the regularly constitut ed class II Engg.
service of the State with effect from 25.12.1970 and were working as Sub Divisional Officers.
Further avenues of promotion to them were barred because the State Government construed the service Rules to mean that without a degree in Engineering, a class II officer could not be promoted to class I service.
The said interpretation of the State Government was disapproved by this Court in the case of A.S. Parmar vs State of Haryana, [1984] 2 SCR 476 as a consequence whereof a degree in Engineering did not remain an essential pre requisite for a member of Class II service for being promoted to Class I service.
After the Judgment in Parmar 's case, the Petitioners filed a Writ Petition in this Court seeking a direction to the State Government to consid er the case of the Petitioners and others similarly situated for promotion to the post of Executive Engineers in Class I service.
On 24.2.84 an undertaking was given to the Court by the State, that the State would consider the claims of all the eligible persons including the petitioners for regular appointment to Class I service within four months.
Instead of granting promotions, the State.
Government amended the Rules with retrospective effect from 10.7.64 so as to make a degree in Engineering as an indispensable qualification for an officer in Class II service for being promoted as Class I officer.
The Petitioners thereupon amended their Writ Peti tion and challenged the validity of 1080 the amendment and the Court by its Judgment dated 17.12.86 struck down the amendment to the Rules as ultra vires the State Government.
In another case involving the same point viz., Ashok Gulati vs B.S. Jain, this Court directed the State Government to consider the cases of all eligible members of Class II service for promotion as Executive Engineers, within six months time.
The State having failed to comply with the Court 's order aforesaid, a contempt petition was flied, which was disposed of by the Court 's order dated 30.12.87 by which time the State had reported to the COurt that the promotions to all concerned eligible officers had since been granted.
The Petitioners have now filed this application contend ing that since their placement In Class II service had been made effective with effect from 25.12.70 though the order therefore was issued on 27.10.85, they Were entitled to be considered for promotion to Class I service as and when they attained eligibility after 25.12.70 especially in view of the Court 's Judgment in Parmar 's case whereby the degree in Engineering was no longer a necessary qualification.
The Petitioners therefore urge that they be placed in their rightful position by giving promotion from back dates or deemed dates, or, in any case, the date when persons junior to them were given promotions.
According to them promotions granted to them belatedly on 30.12.87 did not render true justice to them and that the said order did not fully comply with the Court 's order.
Further a grievance is also made that no benefit has been given to those officers who retired from service during this period.
On the other hand the State contended that it has duly complied with the Court 's order by giving promotions w.e.f. 30.12.87.
The State supported its contention by saying that in approval of its action the Court on 17.12.86 dropped further proceedings in contempt petition which meant that there has been due compliance with the Court 's order.
Disposing of the application with directions this Court, HELD: The combined effect of the striking down of the amendment to the Rules by the Government and the direction issued to the Government in Ashok Gulati 's case to consider for promotion the names of all the eligible Class II offi cers would entitle the petitioners to seek the benefit of promotion from 24.6.84 When the time limit of four months sought for by the State Government to make the promotions came to expire.
But for the unsustainable amendment made to the Rules, the Government could not have postponed the promotions of the 1081 Petitioners and other Class II officers similar to them beyond the time limit of four months which expired on 24.6.84.
It would therefore follow that the order of promo tion made by the State Government on 30.12.87 will not amount to due compliance of the Court 's directions dated 17.12.86.
The Government cannot take advantage of its own error in making an illegal amendment to the Rules with retrospective effect and postpone the benefit of promotion to Class II officers.
[1087G 1088B] The Government cannot also take umbrage for its action in giving promotion to the petitioners and other eligible Class II officers with effect from 30.12.87 either because the directions given on 17.12.86 did not set out the date from when promotions should be given or because the Court passed orders on 4.1.1989, dropping further proceedings in the contempt petition.
[1088C] The State Government was directed to give promotions to all eligible Class II officers with effect from 24.6.84 and to give them all the consequential benefits arising there from.
The court further directed that the benefit of promo tion and consequential benefits should also be given to all those officers who were eligible for promotion on 24.6.84 but who have retired since then.
[1089B]
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The Appellant, who claims mundkarial rights in respect of the property in
dispute, has come up with the above appeal challenging the judgment and decree
passed by the High Court of Bombay at Goa in a Second Appeal, confirming the
concurrent judgment and decrees of Trial Court and the Appellate Court, ordering his
We have heard Ms. Ananya Mukherjee, learned counsel for the Appellant.
The present Appellants are the legal representatives of one Ananta
Chandrakant Bhonsule, who claimed to have acquired mundkar rights in respect of
the subject property several decades ago.
According to the original Appellant, he had also constructed a house in the land
over which he acquired mundkarial rights.
The Respondents-landlords filed a civil suit way back in the year 1970 seeking
eviction of the original appellant. By a judgment and decree dated 21.4.1975, the Trial
Court decreed the suit and directed delivery of possession.
The original Appellant/Defendant filed a First Appeal before the District Court at
Panaji. The appeal was dismissed by the first appellate court by a judgment and
decree dated 10.3.2008. The same was challenged by the Appellant by way of a
second appeal before the High Court of Bombay at Goa. The High Court dismissed
the second appeal on the short ground that there was no perversity in the appreciation
of evidence by both the courts below and that there was no substantial question of
law arising in the second appeal. It is against the said judgment that the Appellant is
before us.
The main thrust of the argument of the learned counsel for the Appellant is that
under Section 31(2) of the Goa, Daman and Diu Mundakars (Protection from Eviction)
Act, 1975 (hereinafter referred to as ‘Act’), the jurisdiction of the Civil Court is barred.
It is the contention of the learned counsel for the Appellant that the fact that the
Appellant was a mundkar, within the definition of expression under Section 2(p) of the
Act, is admitted even by the Respondent-the original owners and that, therefore, all
the three courts exercised a jurisdiction completely contrary to Section 31(2) of the
Though, at the first blush, the said argument appears to be well-founded, it is
seen from admitted facts that the Respondent filed the suit for declaration and eviction
way back in the year 1970. The Trial Court decreed the suit on 21.4.1975. It was
during the pendency of a revision petition arising out of the execution petition that the
Act came into force on 12.3.1976. In other words, the Act under which the civil court’s
jurisdiction was barred, came into force after the decree was passed by the Trial Court
in the suit for eviction filed by the Respondent.
It is settled law that ouster of jurisdiction of civil court can be expressed or
implied, but it cannot have retrospective effect annulling a decree validly passed by
the civil court. Therefore, we do not find any error of law on the part of the High Court
in confirming the concurrent judgment and decrees of the Trial Court and the first
Appellate Court. Hence, this appeal is dismissed, without any order as to costs.
Pending application(s), if any, stand disposed of.
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Recently a Division Bench of the Supreme Court comprising Justice V. Ramasubramanian and Justice Pankaj Mithal reiterated that ouster of jurisdiction of civil court can be expressed or implied, but it cannot have retrospective effect annulling a decree validly passed by the civil court.
The Bench was hearing an appeal filed against an order of the Bombay High Court (Goa), which affirmed the concurrent judgment of courts below ordering eviction of a tenant, who claimed mundakar rights in respect of the suit property.
The original appellant claimed to have constructed a house in a plot of land over which he had mundakar rights. The landlords filed a civil suit for declaration and eviction in 1970 seeking eviction of the appellant. On 21.04.1975, the Trial Court decreed the suit and directed delivery of possession. A first appeal was filed by the appellant, which was dismissed. The matter went to the High Court in a second appeal. Noting that there was no perversity in appreciation of evidence by the courts below, the High Court dismissed the second appeal.
Advocate, Ms. Ananya Mukherjee appearing on behalf of the appellant submitted that under Section 2(p) of the Goa, Daman and Diu Mundakars (Protection from Eviction) Act, 1975, the appellant was a mundakar and the same was admitted by the landlords. She emphasised that Section 31(2) of the Act bars the jurisdiction of the civil court. In view of the same, it was argued that the civil court had passed the order of eviction without jurisdiction.
The Bench noted that the argument of the Counsel holds no merit as the landlords had filed the suit in 1970; the order decreeing the suit was passed on 21.03.1975, while the Act came into force later, on 12.03.1976. In the light of the same, the Bench observed -
“It is settled law that ouster of jurisdiction of civil court can be expressed or implied, but it cannot have retrospective effect annulling a decree validly passed by the civil court. Therefore, we do not find any error of law on the part of the High Court in confirming the concurrent judgment and decrees of the Trial Court and the first Appellate Court.”
[Case Title: Ananta Chandrakant Bhonsule (D) By Lrs. And Anr. v. Trivikram Atmaram Korjuenkar (D) By Lrd. And Anr. Civil Appeal No. 3936 of 2013]
For Appellant(s) Ms. Ananya Mukherjee, Adv. Mr. Krishna Murari, Adv. Ms. Shipra Ghose, AOR
Civil Law - It is settled law that ouster of jurisdiction of civil court can be expressed or implied, but it cannot have retrospective effect annulling a decree validly passed by the civil court
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2. These appeals by way of special leave petitions are directed
against the judgment and order dated 07.11.2019 passed by
Delhi High Court dismissing Crl.L.P. Nos.315 to 322 of 2019 filed
by the appellant against the order of Metropolitan Magistrate-04
(N.I. Act)/South East, Saket Courts, New Delhi (for short “learned
Magistrate”) dated 25.01.2019 dismissing Criminal Complaints
Digitally signed by
621742/16, 12742/17 and 12744/17 for non-appearance of the
complainant (the appellant herein).
3. The short question that arises for our consideration in
these appeals is whether in the facts of the case, the learned
Magistrate was justified in dismissing the criminal complaints for
non-appearance of the complainant even though the statement of
the complainant had been recorded and, vide order of the learned
Magistrate dated 26.10.2017, the complainant’s evidence was
closed with a direction to list the matter for recording of defence
evidence as also for consideration of application under Section
311 of the Code of Criminal Procedure, 1973 (for short “the
Code”) filed by the complainant.
4. To appropriately address the aforesaid issue, it would be
apposite to give a brief sketch of the facts giving rise to these
5. The appellant in all filed eight complaints against the
respondents under Section 138 of the Negotiable Instruments
Act, 1881. Three complaints were filed in the year 2011, three in
the year 2013 and remaining two in the year 2017. Out of the
aforesaid eight complaints, in Complaint Case Nos.621742/16,
621743/16 and 621744/16 the complainant was subjected to
cross-examination. On 26.10.2017, the learned counsel for the
accused made a statement before the learned Magistrate that the
cross-examination of CW-1 (the complainant), as made in the
above three cases, shall be adopted in the remaining complaints.
On basis of the above statement, the complainant’s evidence was
closed and the cases were directed to be listed for recording of
defence evidence. At that stage, an application was filed by the
complainant under Section 311 of the Code for summoning
certain witnesses. While the matter was pending at that stage,
according to the appellant, appellant’s counsel misled the
appellant into a belief that appellant’s presence is not required as
a settlement was being negotiated. It is the case of the appellant
that in these circumstances, the appellant did not appear and
ultimately the complaints were dismissed for non-appearance
vide order dated 25.01.2019.
6. The order dismissing the complaints for non-prosecution
was subjected to challenge before the Delhi High Court through
eight separate petitions which came to be dismissed by a common
order dated 07.11.2019 impugned in these appeals.
7. We have heard Shri Maninder Singh, learned Senior
Advocate appearing for the appellant; and Mr. Samrat Nigam,
learned Advocate for the respondents.
8. The learned counsel for the appellant submitted that the
learned Magistrate while dismissing the complaints for non-
prosecution lost sight of the proviso to sub-section (1) of Section
256 of the Code. It is submitted that the said proviso enables the
Magistrate to dispense with the attendance of the complainant
and proceed with the case where the complainant is represented
by a pleader or by the officer conducting the prosecution or where
the Magistrate is of the opinion that the personal attendance of
the complainant is not necessary.
It is submitted that as the statement of the complainant
had been recorded and the complainant was also subjected to
cross-examination, there existed admissible evidence on record in
support of the complaint case. In these circumstances, even if the
complainant was absent, the learned Magistrate could have
proceeded to decide the case on merits. Thus, the order of the
learned Magistrate stands vitiated for having failed to notice that
there existed evidence on record enabling the matter to proceed
even in absence of the complainant under the proviso to sub-
section (1) of Section 256 of the Code. It is urged that the High
Court also failed to notice the aforesaid aspect; consequently, the
order(s) of the High Court as well as of the learned Magistrate are
liable to be set-aside and the matter be restored to the stage at
which the learned Magistrate had dismissed the complaint.
In support of his submissions, the learned counsel for the
appellant placed reliance on the decisions of this Court in
Associated Cement Co. Ltd. v. Keshvanand1; S. Anand v.
Vasumathi Chandrasekar2; and, S. Rama Krishna v. S. Rami
9. Per contra, the learned counsel for the respondent(s)
submitted that sub-section (1) of Section 256 of the Code
mandates the Magistrate to acquit the accused if, on the day
appointed for the appearance of the accused or any day
subsequent thereto, to which the hearing may be adjourned, the
complainant does not appear. It is submitted that since it is not
in dispute that the complainant had filed an application under
section 311 of the Code and the complainant remained absent
from the proceedings, the learned Magistrate was justified in
dismissing the complaint(s) for non-appearance of the
complainant. It has also been urged that if there is any technical
defect in dismissing the complaint(s) for non-appearance of the
complainant, the same be treated as an order of acquittal as per
provisions of sub-section (1) of Section 256 of the Code.
10. Having noticed the rival submissions, before we proceed
further, it would be useful to notice the provisions of Section 256
of the Code, which are reproduced below:
“256. Non-appearance or death of complainant.—(1) If the
summons has been issued on complaint, and on the day appointed
for the appearance of the accused, or any day subsequent thereto
to which the hearing may be adjourned, the complainant does not
appear, the Magistrate shall, notwithstanding anything
hereinbefore contained, acquit the accused, unless for some reason
he thinks it proper to adjourn the hearing of the case to some other
Provided that where the complainant is represented by a
pleader or by the officer conducting the prosecution or where the
Magistrate is of opinion that the personal attendance of the
complainant is not necessary, the Magistrate may dispense with
his attendance and proceed with the case.
(2) The provisions of sub-section (1) shall, so far as may be,
apply also to cases where the non-appearance of the complainant
is due to his death.”
A plain reading of the proviso to sub-section (1) of Section
256 would indicate that where the Magistrate is satisfied that the
personal attendance of the complainant is not necessary, he can
dispense with the attendance of the complainant and proceed
with the case. Such a situation may arise where
complainant’s/prosecution’s evidence has been recorded and to
decide the case on merits, complainant’s presence is not
11. In the case of S. Anand (supra), addressing a situation
where the complainant was absent but had already examined his
witnesses, this Court observed as follows:
“12. Section 256 of the Code provides for disposal of a
complaint in default. It entails in acquittal. But, the question which
arises for consideration is as to whether the said provision could
have been resorted to in the facts of the case as the witnesses on
behalf of the complainant have already been examined.
13. The date was fixed for examining the defence witnesses.
The appellant could have examined witnesses, if he wanted to do
the same. In that case, the appearance of the complainant was not
necessary. It was for her to cross-examine the witnesses examined
on behalf of the defence.”
After observing as above, in paragraph 15, it was held thus:
“15. … when the prosecution has closed its case and the
accused has been examined under Section 311 of the Code of
Criminal Procedure, the Court was required to pass a judgment on
merit of the matter.”
12. In Associated Cement Co. Ltd. (supra), the purpose of
inserting a provision like Section 256 of the Code was discussed
and in light thereof, in paragraph 16, it was observed as under:
“16. What was the purpose of including a provision like Section
247 in the old Code (or Section 256 in the new Code). It affords
some deterrence against dilatory tactics on the part of a
complainant who set the law in motion through his complaint. An
accused who is per force to attend the court on all posting days
can be put to much harassment by a complainant if he does not
turn up to the court on occasions when his presence is necessary.
The section, therefore, affords protection to an accused against
such tactics of the complainant. But that does not mean if the
complainant is absent, the court has a duty to acquit the accused
in invitum.”
After observing as above, it was held that where the
complainant had already been examined as a witness in the case,
it would not be appropriate for the Court to pass an order of
acquittal merely on non-appearance of the complainant. Thus,
the order of acquittal was set-aside and it was directed that the
prosecution would proceed from the stage where it reached before
the order of acquittal was passed.
13. In the instant case, we notice that there is a specific
averment in the Special Leave Petition(s) that the appellant had
led its evidence in the case and thereafter had moved an
application under Section 311 of the Code to summon and
examine further witnesses. In Paragraph 5(u), it is stated that
the trial court as well as the High Court did not take into
consideration that the complainant’s cross-examination had been
over in Complaint Case Nos.621742/16, 621743/16 and
621744/16, and no cross-examination was sought in other cases.
Rather, CW-1’s cross-examination in the above three complaint
cases was adopted. There appears no specific denial of the
aforesaid factual position. However, we find that neither the High
Court nor the learned Magistrate has taken notice of the aforesaid
position. Both the courts below thus failed to consider whether
in the facts of the case under the proviso to sub-section (1) of
Section 256, the court could proceed with the matter after
dispensing with the attendance of the complainant.
Further, if the complainant had not appeared to press the
application under Section 311 of the Code, the learned Magistrate
could have rejected the application under Section 311 of the Code
and proceeded with the case on basis of the available evidence.
We are, therefore, of the considered view that the learned
Magistrate was not justified in straight away dismissing the
complaint(s) and ordering acquittal of the accused on mere non-
appearance of the complainant. The High Court too failed to take
notice of the aforesaid aspects. Thus, the orders impugned are
liable to be set aside.
14. For the reasons above, the order(s) of the High Court as
well as of the learned Magistrate are set-aside. The proceedings
shall stand restored to their original number(s) on the file of the
learned Magistrate and the prosecution shall now proceed from
the stage where it was when the order of acquittal/dismissal of
the complaint(s) was passed.
15. The appeals are allowed in the aforesaid terms.
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Where the complainant had already been examined as a witness in the case, it would not be appropriate for the Court to pass an order of acquittal merely on non-appearance of the complainant, the Supreme Court observed in a judgment today.
In this case, the complainant filed eight complaints against the accused under Section 138 of the Negotiable Instruments Act. The statement of the complainant had been recorded and the complainant’s evidence was closed with a direction to list the matter for recording of defence evidence as also for consideration of application under Section 311 of the Code of Criminal Procedure, 1973. However, Magistrate later dismissed the criminal complaints for non-appearance of the complainant. The Delhi High Court upheld this order of the Magistrate.
Before the Apex Court, it was contended that as the statement of the complainant had been recorded and the complainant was also subjected to cross-examination, there existed admissible evidence on record in support of the complaint case. In these circumstances, even if the complainant was absent, the Magistrate could have proceeded to decide the case on merits, it was contended.
Referring to the decisions in Associated Cement Co. Ltd. v. Keshvanand (1998) 1 SCC 687, the bench of Justices Sudhanshu Dhulia and Manoj Misra said:
it was held that where the complainant had already been examined as a witness in the case, it would not be appropriate for the Court to pass an order of acquittal merely on non-appearance of the complainant. Thus, the order of acquittal was set-aside and it was directed that the prosecution would proceed from the stage where it reached before the order of acquittal was passed.
The bench noted that the trial court as well as the High Court did not take into consideration that the complainant’s cross-examination had been over in Complaint Cases and no cross-examination was sought in other cases. Both the courts below thus failed to consider whether in the facts of the case under the proviso to sub-section (1) of Section 256, the court could proceed with the matter after dispensing with the attendance of the complainant, the bench observed while allowing the appeal.
Case details
BLS Infrastructure Limited vs Rajwant Singh | (SC) 153 | CrA 657-664 OF 2023 | 1 March 2023 | Justices Sudhanshu Dhulia and Manoj Misra
For Petitioner(s) Mr. Maninder Singh, Sr. Adv. Mr. Neeraj Gupta, Adv. Mr. Deepak Goel, AOR Ms. Urvashi Sharma, Adv.
For Respondent(s) Mr. Maibam Nabaghanashyam Singh, AOR Mr. Amit Punj, Adv.
Headnotes
Code of Criminal Procedure, 1973 ; Section 256 - Where the complainant had already been examined as a witness in the case, it would not be appropriate for the Court to pass an order of acquittal merely on non-appearance of the complainant - Referred to Associated Cement Co. Ltd. v. Keshvanand (1998) 1 SCC 687. (Para 12)
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1. Leave granted. These appeals are directed against the judgment
and order dated 15.11.2018 passed by the High Court of Delhi
whereby the Court upheld the common final order dated 24.08.2017
of the Central Administrative Tribunal, Principal Bench [hereinafter
referred to as the ‘Tribunal’ for short] and dismissed the petitions filed
by the North Delhi Municipal Corporation [hereinafter referred to as
the ‘NDMC’ for short]. The Tribunal declared that the applicants who
are ayurvedic doctors covered under AYUSH are also entitled to the
benefit of enhanced superannuation age of 65 years (raised from 60
years), just like the allopathic doctors. The entitlement of the
respondents to continue in service upto 65 years and receive due
remuneration for the same is the only issue to be considered in these
cases. For the sake of convenience, the relevant facts are taken from
SLP (C) No. 10156 of 2019.
2. Prior to 31.05.2016, the retirement age was 60 years for the
General Duty Medical Officers [‘GDMO’ for short] of the Central Health
Scheme [‘CHS’ for short], the Dentists and Doctors covered under
AYUSH (including ayurvedic doctors). At that stage, the Government
of India, Ministry of Health and Family Welfare issued the order dated
31.05.2016, with immediate effect, enhancing upto 65 years, the age
of superannuation of the specialists of Nonteaching and public health
subcadres of CHS and GDMOs of CHS. This was followed by
consequential amendment of the Fundamental Rules, 1922 by Gazette
Notification dated 31.05.2016 of the Department of Personnel
Training. On 30.06.2016 the NDMC adopted the Government of India
order by issuing office order dated 30.06.2016 and enhanced the
retirement age to 65 years for the Allopathic doctors working in the
NDMC. The Office Memorandum issued by the Ministry of Health and
Family Welfare on 30.08.2016 then clarified that the enhanced
superannuation age granted by order dated 31.05.2016 is applicable
to GDMOs of CHS i.e. the allopathic doctors and municipal
corporations and others were given the liberty to take their own
decision on the matter, on the applicability of the Ministry’s decision
on enhancement of superannuation age. Thus, the ayurvedic doctors
were not seen to have been covered by the Ministry’s order dated
3. The above led to several Original Applications (OA) filed by the
ayurvedic doctors, before the Tribunal. The respondent Dr. Ram
Naresh Sharma and other ayurvedic doctors sought the benefit of the
Government decision and the office order of NDMC, for it to be made
applicable to the ayurvedic doctors as well. On 09.12.2016 an interim
order was passed by the Tribunal to the following effect.:
Applicant may be allowed to continue in service
on the post held by him beyond the date of his
retirement/superannuation till further orders,
however, he will not be paid any salary nor
shall this order confer any right or equity in
favour of the Applicant.”
4. By the common final order dated 24.08.2017, the Tribunal
accepted the discrimination argument advanced by the ayurvedic
doctors visàvis the allopathic doctors. Accordingly, it was held that
the applicants were entitled to same service conditions including the
enhanced age of superannuation to 65 years, as made applicable to
doctors (GDMOs) working under the CHS, in terms of the order dated
31.05.2016 of Ministry of Health and Family Welfare. Thus, the
employer was directed to allow the ayurvedic doctors to continue in
service till the age of 65 years. It was clarified that in case any of the
applicants had been made to superannuate at the age of 60 years,
he/she shall be reinstated and be permitted to serve until the age of
65 years.
5. Aggrieved by the above decision of the Tribunal, the appellant
NDMC preferred Writ Petitions before the High Court of Delhi. During
the pendency of writ petition, on 24.11.2017, the Ministry of
Ayurveda, Yoga, Naturopathy, Unani, Siddha and Homeopathy
(‘AYUSH’ for short), Government of India, issued an order whereby it
was communicated that the superannuation age of AYUSH doctors is
also enhanced to 65 years w.e.f. 27.09.2017, i.e. the date of approval
of Union Cabinet. It was however directed that the doctors shall hold
administrative positions only until age of 62 years and thereafter,
their service shall be placed in nonadministrative positions.
6. It may be noted that the High Court on 26.09.2017 in WP(C)
8704/2017 arising out of OA 2712/ 2016 (NDMC vs. Dr. Santosh
Kumar Sharma), had passed the following interim order:
Since the private respondents are still working
under the orders as passed by the Tribunal, the
respondents may continue to work, if they so
desire without receiving any salary as of now.
We are inclined to permit the respondents to
continue to serve this interim order, since
learned counsel for the private respondents have
stated, on instructions, that in case the
petitioner succeeds, they shall not claim any
equity on account of the fact that they have
rendered services under the order of the Court.
The respondents shall remain bound by their
said statements.”
7. When the Writ Petition 637/2018 arising out of O.A. 4026/2016
of the respondent Dr. Ram Naresh Sharma came up for consideration,
the High Court on 23.01.2018 while issuing notice passed an interim
order to the following effect.
“In the meantime, the operation of the impugned
order shall remain stayed on the same terms as
recorded in the interim order dated 26.09.2017,
passed in W.P.8704/2017”
8. The Writ Petitions challenging the Tribunal’s common order
dated 24.08.2017 were heard analogously and were dismissed
affirming the Tribunal’s conclusion in favor of the ayurvedic doctors.
The Tribunal noted in its order that although initially the benefit of
policy decision of government to enhance the retirement age was
confined to allopathic doctors but subsequently the policy decision
was made applicable to other category doctors (including ayurvedic
doctors), covered by AYUSH. Significantly, while the NDMC has
adopted the Ministry’s decision but those ayurvedic doctors of the
NDMC who fall in the window between 31.05.2016 and 26.09.2017,
are deprived of getting the benefit of the enhanced retirement age. In
other words, only those retiring on or after 27.09.2017, could aspire to
serve until 65 years.
9. The High Court in the analogous judgment referred to the case
of Dr. Pratibha Sharma who was employed as an ayurvedic doctor
under the East Delhi Municipal Corporation [‘EDMC’] and observed
that her employer, unlike the NDMC, has not adopted the Government
decision dated 24.11.2017 to enhance the retirement age to 65 years
for the AYUSH category doctors. Taking note that Dr. Pratibha
Sharma’s employers had not adopted the AYUSH Ministry’s decision
dated 24.11.2017, it was left open to the EDMC to deal with her case
as deemed appropriate. With such finding and observation, the WPs
came to be dismissed upholding the view taken by the Tribunal in
favor of the ayurvedic doctors and consequential direction was issued
to the NDMC to disburse payment of arrears of salary and allowances
to the ayurvedic doctors, who continue to serve with the NDMC
beyond the age of 60 years. Specific direction was also issued on their
entitlement to salary and other allowances till they superannuate at
the age of 65 years. Aggrieved by the said decision of the High Court of
Delhi, the present Appeals are filed.
10. The Respondents in SLP (C) No. 19288/2019 (Dr. Brijesh
Kumari) and SLP (C) No. 19287/2019 (Dr. Mohd. Ahmed Khan) are
Ayurvedic and Unani doctors respectively, working under the South
Delhi Municipal Corporation [‘SDMC’]. Dr. Brijesh Kumar was
supposed to retire on 31.07.2017 upon attaining age of 60 years,
whereas Dr. Mohd. Ahmed Khan was supposed to superannuate on
31.05.2017. Dr. Brijesh Kumar filed O.A. 2503/2017 in the Tribunal,
which came to be decided on 05.09.2017. In its order the Tribunal,
relied on its earlier judgment in the matter of Dr. Santosh Sharma,
whereby the respondents were allowed to continue in service till they
attain the age of 65 years. Similarly, Dr. Khan’s application came to
be decided on 21.09.2017 with like consequences. Aggrieved by these
orders, Writ Petitions were preferred by the SDMC impugning the
judgments by the Tribunal. These Writ Petitions were dismissed by the
Delhi High Court on same day i.e. 27.03.2019 vide judgments in W.P.
(C) No. 1776/2018 and W.P.(C) No. 1769/2019. In this Court, the
SDMC has averred that the order of AYUSH Ministry dated
24.11.2017 has been adopted by the SDMC on 31.10.2018, but the
approval for the same from the House of SDMC, is still pending.
Hence, it cannot be said that the SDMC has adopted the order of
AYUSH Ministry dated 24.11.2017.
11. The respondent in SLP (C) 24693/2019, Dr. Lata A. Dupare, was
working as a dental surgeon under CGHS, Nagpur. Dr. Lata was
supposed to retire on 31.05.2016. The Tribunal by an order dated
17.11.2017 in O.A. 3795/2017 citing its own judgment in Dr. Santosh
Sharma, and Dr. H. P. Singh vs. Union of India 1 gave her the benefit of
extended superannuation age. Aggrieved by this order, the Union
preferred a W.P.(C) 3210/2019 in the High Court of Delhi which came
to be dismissed on 01.04.2019.
12. We have heard the learned counsel appearing for the appellants
and the respondents. Questioning the legality of the impugned
decision, Mr. R. Balasubramaniam, learned senior counsel contends
that the benefit of enhanced retirement age should have been
extended only w.e.f. 27.09.2017 as per the AYUSH Ministry’s decision,
as there is limited scope for interference on a cutoff date, stipulated
by the government. The interim order dated 26.09.2017 in W.P.
8704/2017 of the High Court is read by the counsel to argue that
while the respondents were permitted to continue in service beyond 60
years, they are disentitled to claim any equitable relief by way of
arrear of salary on account of the fact that they remained in service
under interim orders of the court. The financial implication for the
employer is highlighted by the learned senior counsel to argue that
the appellants should not be burdened with the liability to disburse
the unpaid arrear salary to the respondents.
13. On the other hand, the learned counsel for respondents argue
that relief to the respondents was granted by the Tribunal and by the
High Court by concluding that the action of the authorities in
treatment of the allopathic doctors visàvis the ayurvedic doctors was
discriminatory and violative of Art. 14 of Constitution. Accordingly, it
is argued that there can be no separate service condition in so far as
the superannuation age is concerned between allopathic and other
category doctors, particularly when the AYUSH Ministry itself on
24.11.2017 has enhanced the retirement age for the nonallopathic
doctors w.e.f. 27.09.2017, in tune with the Ministry’s order dated
14. Ld. Sr. Counsel for appellant relied on judgment of this Court in
U. P. State Brasswar Corporation Ltd. and Anr. vs. Uday Narain
Pandey2, and argued that while earlier, awarding full arrears of salary
was the practice, under the prevalent pragmatic view of the issue, the
Court should determine the award of back wages based on facts and
circumstances of each case. For the Bench, Justice S. B. Sinha in
“17. Before adverting to the decisions relied
upon by the learned counsel for the parties, we
may observe that although direction to pay full
back wages on a declaration that the order of
termination was invalid used to be the usual
result but now, with the passage of time, a
pragmatic view of the matter is being taken by
the court realizing that an industry may not be
compelled to pay to the workman for the period
during which he apparently contributed little or
nothing at all to it and/ or for a period that was
spent unproductively as a result whereof the
employer would be compelled to go back to a
situation which prevailed many years ago,
namely, when the workman was retrenched.”
15. The above ratio in Uday Narain Pandey (supra) is however not
attracted to the matters before us, as there is significant difference in
the factual matrix. In the cited case, the respondentworker had not
rejoined or continued his employment after his retirement, and was
asking for wages for work, he did not actually render. Whereas, in this
bunch of cases, it is undisputed that the respondent doctors have
continuously served in hospitals till attaining the enhanced age of
superannuation i.e. 65 years vide the AYUSH Ministry order dated
24.11.2017 and by virtue of interim order of the High Court dated
26.09.2017. In other words, they have been productive not only for
the patients but also for their employers.
16. The learned senior counsel for appellant by placing reliance
upon the HC interim order submits that respondent doctors are not
entitled to remuneration and unpaid arrears as they were serving in
the hospitals on the strength of the Court’s interim order. Such
argument for appellants cannot however be accepted in light of the
principle ‘Actus Curiae Neminem Gravabit’. Explaining the principle,
Justice B. S. Chauhan speaking for this court in Kalabharati
Advertising vs. Hemant Vimalnath Narichania3, stated the following:
gravabit", which means that the act of the Court
shall prejudice noone, becomes applicable in such
a case. In such a situation the Court is under an
obligation to undo the wrong done to a party by the
act of the Court. Thus, any undeserved or unfair
jurisdiction of the Court must be neutralised, as the
institution of litigation cannot be permitted to confer
any advantage on a party by the delayed action of
the Court.”
17. Bearing in mind the above legal principle the Interim order of
Delhi High Court dated 26.09.2017 in our opinion cannot be the basis
to deny salary and arrear benefits to respondents. The said interim
order merged with the final judgment dated 15.11.2018 and all
consequential benefits of employment were due to the respondents.
Therefore, when the respondents worked and served patients, the
basic benefit of salary cannot be denied to the doctors.
18. This Court in case of Central Electricity Supply Utility of Odisha
“51....Till the declaration is made, the incumbent
service he cannot be deprived of his salary.
admitted and the incumbent functions in the
post and neither suspended nor removed from
service, he is entitled to get salary, for it is his
legal right and it is the duty of the employer to
pay it as per the terms and conditions of the
appointment.…”
The above ratio correctly sets out the employers’ responsibility to
pay the wages for the productive employees serving under them.
19. In the case of New Okhla Industrial Development Authority &
Anr. vs. B. D. Singhal & Ors. 5, this Court while dealing with a
comparable issue, declined to give retrospective application to the U.P.
State Government order dated 30th September 2012, which extended
the age of superannuation from 58 years to 60 years. The arrears of
salary to respondent employees who had retired on 31 st August, 2012,
upon attaining the age of 58 years was also denied. But that case can
have no application in the present appeals since facts are
distinguishable. There are two vital factual differences, which need to
be considered. Firstly, the Allahabad High Court retrospectively
applied the U.P. State Government order dated 30 th September 2012,
from 29th June 2002 i.e. the day on which recommendation for
extending the age of superannuation was made. Whereas, in the case
5 2021 SCC OnLine SC 466, C.A. No. 2311 of 2021
at hand, on 31.05.2016 a notification was issued which was
expeditiously implemented. Secondly, arrears of salary were
disallowed, because the respondentemployees in New Okhla
Industrial Development Authority had not worked even a single day
after retiring, on attaining 58 years of age. But, in the present case,
respondentdoctors have been working continuously without break,
pursuant to the Interim order of the Delhi High Court dated
26.09.2017. Hence, based on these two distinguishing aspects, the
ratio in New Okhla Industrial Development Authority cannot in our
opinion be applicable here, to defeat the legitimate expectation of the
respondents.
20. In these matters, for almost 5 years, the respondent doctors
have been providing service to countless patients, without
remuneration or benefits. Their services are utilized by the employer
in Government establishments, without demur. In this regard, the
learned senior counsel for appellant submits that paying arrear
unpaid wages to the respondent doctors will impose substantial
financial burden upon the State. Such submission cannot however be
countenanced as a fair submission by the State’s counsel. The
principle of ‘No Work, No Pay’ protects employers from paying their
employees if they don’t receive service from them. A corollary thereto
of ‘No work should go unpaid’ should be the appropriate doctrine to be
followed in these cases where the service rendered by the respondent
doctors have been productive both for the patients and also the
employer. Therefore, we are quite clear in our mind that the
respondents must be paid their lawful remuneration arrears and
current, as the case may be. The State cannot be allowed plead
financial burden to deny salary for the legally serving doctors.
Otherwise it would violate their rights under Articles 14, 21 and 23 of
the Constitution.
21. In the case of the respondent in SLP (C) 12046/2019 i.e. Dr. H.
P. Singh, it is averred by the appellants, that he has not worked after
superannuation on attaining the age of 60 years. But, there is
sufficient evidence on record to suggest that the respondentdoctor
through several representations sought to be reappointed but it was
the employer who created impediments and did not allow the
respondent to rejoin his duties in hospitals. In such circumstances,
the principle of ‘No Work, No Pay’ cannot be raised by the employers,
as it is they who had obstructed the doctor from discharging his
service. For support we may cite Dayanand Chakrawarthy vs. State of
Uttar Pradesh6 where this Court speaking through Justice S. J.
employer from performing his duties, the employee
cannot be blamed for having not worked, and the
applicable to such employee.”
22. The common contention of the appellants before us is that
classification of AYUSH doctors and doctors under CHS in different
categories is reasonable and permissible in law. This however does not
appeal to us and we are inclined to agree with the findings of the
Tribunal and the Delhi High Court that the classification is
discriminatory and unreasonable since doctors under both segments
are performing the same function of treating and healing their
patients. The only difference is that AYUSH doctors are using
indigenous systems of medicine like Ayurveda, Unani, etc. and CHS
doctors are using Allopathy for tending to their patients. In our
understanding, the mode of treatment by itself under the prevalent
scheme of things, does not qualify as an intelligible differentia.
Therefore, such unreasonable classification and discrimination based
on it would surely be inconsistent with Article 14 of the Constitution.
The order of AYUSH Ministry dated 24.11.2017 extending the age of
superannuation to 65 Years also endorses such a view. This extension
is in tune with the notification of Ministry of Health and Family
Welfare dated 31.05.2016.
23. The doctors, both under AYUSH and CHS, render service to
patients and on this core aspect, there is nothing to distinguish them.
Therefore, no rational justification is seen for having different dates for
bestowing the benefit of extended age of superannuation to these two
categories of doctors. Hence, the order of AYUSH Ministry (F. No. D.
14019/4/2016EI (AYUSH)) dated 24.11.2017 must be
retrospectively applied from 31.05.2016 to all concerned respondent
doctors, in the present appeals. All consequences must follow from
this conclusion.
24. In light of the above discussion, the appellant’s actions in not
paying the respondent doctors their due salary and benefits, while
their counterparts in CHS system received salary and benefits in full,
must be seen as discriminatory. Hence, we have no hesitation in
holding that the respondentdoctors are entitled to their full salary
arrears and the same is ordered to be disbursed, within 8 weeks from
today. Belated payment beyond the stipulated period will carry
interest, at the rate of 6% from the date of this order until the date of
payment. It is ordered accordingly. The appeals are disposed of in
above terms without any order on cost.
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The Supreme Court has observed that there is no rational justification for different age of retirement for doctors practicing AYUSH system of medicines and allopathic doctors. The Court observed that the mode of treatment by itself will not qualify as an "intelligible differentia" between two categories as far as retirement age is concerned.A division bench comprising Justices L Nageswara Rao...
The Supreme Court has observed that there is no rational justification for different age of retirement for doctors practicing AYUSH system of medicines and allopathic doctors. The Court observed that the mode of treatment by itself will not qualify as an "intelligible differentia" between two categories as far as retirement age is concerned.
A division bench comprising Justices L Nageswara Rao and Hrishikesh Roy was deciding an appeal filed by the New Delhi Municipal Corporation against a Delhi High Court judgment which held that AYUSH doctors working under NDMC were entitled to the enhancement of retirement age as 65 years, with retrospective effect from the date on which such enhancement was given to allopathic doctors.
"The only difference is that AYUSH doctors are using indigenous systems of medicine like Ayurveda, Unani, etc. and CHS doctors are using Allopathy for tending to their patients. In our understanding, the mode of treatment by itself under the prevalent scheme of things, does not qualify as an intelligible differentia. Therefore, such unreasonable classification and discrimination based on it would surely be inconsistent with Article 14 of the Constitution", the Supreme Court observed while upholding the High Court judgment.
The dispute in the case related to the applicability of an order issued by the Union Ministry of Health and Family Welfare on 31.05.2016 to raise the age of superannuation for the General Duty Medical Officers [GDMO] of the Central Health Scheme [CHS] from 60 years to 65 years. The issue was if the order was applicable to ayurvedic doctors covered under the Ministry of AYUSH.
On 30.06.2016, the NDMC adopted the Government of India order by issuing office order dated 30.06.2016 and enhanced the retirement age to 65 years for the Allopathic doctors working in the NDMC. Ayurvedic doctors working in the NDMC were aggrieved with their exclusion from the order enhancing age of retirement. Therefore, some of them approached the CAT.
Later, on 27.09.2017, the Ministry of AYUSH issued an order enhancing the age of superannuation of AYUSH doctors as 65 years. Meanwhile, the CAT had allowed the applications filed by Ayurvedic doctors, accepting their argument of unjust discrimination.
The Delhi High Court upheld the CAT's order and directed the NDMC to disburse payment of arrears of salary and allowances to the ayurvedic doctors, who continue to serve with the NDMC beyond the age of 60 years. The High Court also held that the AYUSH Ministry's order enhancing the age of retirement must be retrospectively applied from 31.05.2016, the date on which MoHFW issued its order.
Approving the findings of the Delhi High Court and CAT, the Supreme Court said :
"The doctors, both under AYUSH and CHS, render service to patients and on this core aspect, there is nothing to distinguish them. Therefore, no rational justification is seen for having different dates for bestowing the benefit of extended age of superannuation to these two categories of doctors. Hence, the order of AYUSH Ministry (F. No. D. 4019/4/2016¬E¬I (AYUSH)) dated 24.11.2017 must be retrospectively applied from 31.05.2016 to all concerned respondent¬ doctors, in the present appeals. All consequences must follow from this conclusion".
Also from the judgment- State Cannot Plead Financial Burden To Deny Salary For Legally Serving Doctors : Supreme Court
Case Details
Case Title : North Delhi Municipal Corporation vs Dr. Ram Naresh Sharma and others
Coram : Justices L Nageswara Rao and Hrishikesh Roy
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Rinki Kumari @ Anita Kumari aged about 32 years, wife of
Kundan Kumar @ Kundan Kumar Singh and daughter of Tilak
Sharma, permanent resident of village Korma, P.O.
Chhatubagh, P.S. Chandauti, District Gaya (Bihar) at present
residing at Tungri Toli, behind St. Francis School, Harmu, P.O.
Kundan Kumar @ Kundan Kumar Singh, son of Amrendra
Kumar Singh @ Munna singh, resident of village Korma, P.O.
For the Petitioner : Mr. Arjun N. Deo, Advocate
For the Opp. Party : Mr. Vikas Kumar, Advocate
09/07.01.2022 Learned counsel for the petitioner Mr. Arjun N. Deo is
present.
2. Learned counsel for the opposite party Mr. Vikas Kumar
is also present.
3. The present revision application has been directed against
the judgement dated 18.02.2019 passed by the learned Addl.
Principal Judge, Addl. Family Court, Ranchi in Original
Maintenance Case No. 198 of 2014 (under Section 125 of the
Criminal Procedure Code, 1973), whereby the learned court
below has allowed the application of the petitioner and directed
the opposite party to pay an amount of Rs. 1500/- per month to
the petitioner from the date of passing of the judgement and
has further directed to pay Rs. 5,000/- lump sum as litigation
cost and has also directed the opposite party to make payment
of monthly allowance on or before 10th day of each month of
English calendar.
4. Vide order dated 31.01.2020, this Court has refused to
interfere with the quantum of maintenance. However, the
notice was issued on the point regarding effective date of grant
of maintenance whether it should have been from the date of
passing of the impugned judgement or from the date of filing of
the maintenance application.
5. Pursuant to the notice, the opposite party has appeared,
but no counter-affidavit as such has been filed by the opposite
6. The learned counsel for the petitioner has relied upon a
judgement passed by Hon’ble Supreme Court reported in
(2021) 2 SCC 324 (Rajnesh Vs. Neha and Another) and has
referred to para 113 of the said judgement to submit that the
law has been well-settled that in a case of maintenance, the
maintenance is to be awarded from the date of filing of the
application since the period during which maintenance
proceeding remained pending, is not within the control of the
applicant. The learned counsel submits that the point on which
notice was issued in the present case is squarely covered by the
aforesaid judgement.
7. The learned counsel appearing on behalf of the opposite
party, on the other hand, submits that pursuant to order dated
10.12.2021 he was to seek instructions as to whether
maintenance has been paid to the petitioner as per the
impugned order or not, but he does not have any instructions.
8. Upon this, the learned counsel for the petitioner submits
that not even a farthing has been paid to the petitioner and this
fact has been mentioned by the petitioner in the present memo
9. After hearing the learned counsel for the parties, this
Court finds that the learned court below, while allowing the
petition for maintenance on contest, directed the opposite party
to pay monthly maintenance at the rate of Rs. 1500/- per month
from the date of passing of the judgement along with a lump
sum litigation cost of Rs. 5,000/- with further direction to make
payment of monthly allowance on or before 10th day of each
month of English calendar.
10. Considering the aforesaid judgement relied upon by the
petitioner in the case of Rajnesh Vs. Neha and Another (Supra)
wherein in paragraph 113, the Hon’ble Supreme Court has
issued direction to bring about uniformity and consistency in
the orders passed by all courts by directing that maintenance be
awarded from the date on which the application was made
before court concerned, the right to claim maintenance must
date back to the date of filing the application since the period
during which the maintenance proceedings remained pending
is not within the control of the applicant.
11. In view of the aforesaid judicial pronouncement of the
Hon’ble Supreme Court, the impugned order dated 18.02.2019
passed by the learned Addl. Principal Judge, Addl. Family
Court, Ranchi in Original Maintenance Case No. 198 of 2014 to
the extent it directs payment of monthly maintenance from the
date of judgement, is not sustainable in the eyes of law and it is
accordingly modified by holding that the petitioner would be
entitled for the payment of monthly allowance as fixed by the
learned court below from the date of application filed before the
learned court below which is dated 22.09.2014.
12. Thus, the petitioner would be entitled for maintenance at
the rate of Rs. 1500/- per month from the month of October,
2014 apart from the litigation expenses of Rs.5,000/- already
fixed by the learned court below.
13. The entire arrears of maintenance for 88 months till
January, 2022 comes to Rs. 1,32,000/- and by including
litigation expenses, it comes to Rs. 1,37,000/-.
14. The learned counsel for the petitioner has furnished the
details of the bank account of the petitioner which is as follow:
Account holder name : Mrs. Anita Kumari
Bank name and Branch: Punjab National Bank,
15. The opposite party is directed to remit the arrears
of maintenance and litigation expenses amounting to
Rs. 1,37,000/- in monthly instalment of Rs. 10,000/- each with
effect from 10th February, 2022 along with the current monthly
maintenance amount for each month, as directed by the learned
court below to the aforesaid bank account of the petitioner
through RTGS mode.
16. The present criminal revision petition is accordingly
disposed of with the aforesaid modification of the impugned
judgement and aforesaid direction to the opposite party.
17. Let a copy of this order be communicated to the opposite
party by the office through speed post and the office is directed
to track the speed post-delivery online and put the same on
record.
18. Let this order be communicated to the learned court
below through FAX / e-mail.
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The Jharkhand High Court has recently held that the claim for maintenance arises from the date of filing the application and not the date of judgment. Justice Anubha Rawat Choudhary referred to the Supreme Court Decision in Rajnesh v. Neha & Anr. and modified the impugned order, directing payment of monthly allowance from the date of application.The matter arises out of a revision...
The Jharkhand High Court has recently held that the claim for maintenance arises from the date of filing the application and not the date of judgment. Justice Anubha Rawat Choudhary referred to the Supreme Court Decision in Rajnesh v. Neha & Anr. and modified the impugned order, directing payment of monthly allowance from the date of application.
The matter arises out of a revision application against the judgment of the Additional Principal Judge, Family Court, whereby it has allowed the petitioner's application and directed the opposite party to pay the monthly allowance of Rs. 1,500/- per month from the date of passing of the judgment.
The High Court refused to interfere with the quantum of maintenance and undertook the issue of the effective date of grant of maintenance. The issue is whether the effective date of grant of maintenance should be from the date of passing the impugned judgment or from the date of filing the maintenance application.
Advocate Arjun N. Deo, appearing for the petitioner, placed reliance on the case of Rajnesh v. Neha and Anr, where the Supreme Court issued direction that maintenance is awarded from the date on which the application was made before the court concerned, the right to claim maintenance must date back to the date of filing the application since the period during which the maintenance proceedings remained pending is not within the control of the applicant.
Relying on the apex court decision, the Jharkhand High Court held that the effective date of grant of maintenance as the date of the judgment, as fixed by the impugned judgment, is unsustainable in law. It directed the payment of the fixed monthly allowance from filing the application.
Case Title: Rinki Kumari @ Anita Kumari v. Kundan Kumar @ Kundan Kumar Singh
Read The Order
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The present appeal is directed against an order
passed by the National Consumer Disputes Redressal
Commission [in short, “NCDRC”] in R.P. No. 170 of
2006 on 21.10.2009, whereby the revision against an
order of the State Dispute Redressal Commission
dismissing the complaint was upheld.
The appellant is the brother-in-law of one Kiran
Srivastava, who was four months’ pregnant when she
was taken for treatment to the clinic of the
respondent on 22.12.2001. It is not necessary to
examine the allegations on merits, however, the
question required to be examined is as to whether the
appellant could file a complaint in respect of
deficiency in service on part of the respondent
regarding the treatment given to his sister-in-law
The argument of the appellant is that his brother
is a Constable and, therefore, the appellant had
availed the services for consideration on behalf of
his sister-in-law, being the Karta of Joint Hindu
Family. Therefore, the complaint on his behalf would
be maintainable.
A ‘complainant’ is defined under Section 2(1)(b)
of the Consumer Protection Act, 1986, whereas a
‘consumer’ is defined under Section 2(1)(d) of the
“(b) "complainant" means -
(ii) any voluntary consumer association
registered under the Companies Act, 1956 (1 of
1956) or under any other law for the time
(iii) the Central Government or any State
(iv) one or more consumers, where there are
numerous consumers having the same interest;
(v) in case of death of a consumer, his legal
heir or representative; who or which makes a
(d) "consumer" means any person who—
(ii) hires or avails of any services for a
consideration which has been paid or promised
or partly paid and partly promised, or under
any system of deferred payment and includes any
beneficiary of such services other than the
person who [hires or avails of] the services
for consideration paid or promised, or partly
paid and partly promised, or under any system
of deferred payment, when such services are
availed of with the approval of the first
mentioned person [but does not include a person
who avails of such services for any commercial
purpose]”
Learned counsel for the appellant relied upon two
judgments of this Court reported as (1998) 4 SCC 39 -
Anr., and (2020) 3 SCC 455 - Canara Bank Vs. United
India Insurance Company Ltd. and Ors. We have heard
the learned counsel for the parties and find no merit
in the present appeal.
A consumer as mentioned above, means any person
who hires or avails of any services for a
consideration which has been paid or promised or
partly paid and partly promised and includes a
beneficiary of services. The brother-in-law of a
pregnant woman would not be a beneficiary of any
services rendered by the respondent. There is no
allegation that he has paid or promised any
consideration for engaging the services of the
respondent. The only assertion in the complaint is
that he is the ‘Karta’ of a Joint Hindu Family,
therefore, he is entitled to file a complaint on
account of the alleged deficiency of service by the
respondent. Spring Meadows (supra) was a case of
medical negligence in respect of a child. It was the
parents of the child, who had filed a consumer
complaint, which was found to be maintainable in terms
of Section 2(1)(d)(ii). This Court held as under :-
“12. In the present case, we are concerned
with clause (ii) of Section 2(1)(d). In the
said clause a consumer would mean a person
who hires or avails of the services and
includes any beneficiary of such services
other than the person who hires or avails of
the services. When a young child is taken to
a hospital by his parents and the child is
treated by the doctor, the parents would come
within the definition of consumer having
hired the services and the young child would
also become a consumer under the inclusive
definition being a beneficiary of such
services. The definition clause being wide
enough to include not only the person who
hires the services but also the beneficiary
of such services which beneficiary is other
than the person who hires the services, the
conclusion is irresistible that both the
parents of the child as well as the child
would be consumer within the meaning of
Section 2(1)(d)(ii) of the Act and as such
can claim compensation under the Act.”
Further, Canara Bank (Supra) was a case arising
out of a claim on account of fire in the cold
storage, which was used to store the crop of the
farmers. It was, in these circumstances, it was
held that the complaint on behalf of the farmers,
who were the beneficiaries, was maintainable. This
“29. The definition of ‘consumer’ under
the Act is very wide and it includes
beneficiaries who can take benefit of the
insurance availed by the insured. As far as
the present case is concerned, under the
tripartite agreement entered between the
Bank, the cold store and the farmers, the
stock of the farmers was hypothecated as
security with the Bank and the Bank had
insisted that the said stock should be
insured with a view to safeguard its
interest. We may refer to the penultimate
clause of the tripartite agreement which
“WHEREAS the Third Party has agreed
to insure the produce/goods stored in
the cold storage to indemnify the
produce in case of any casualty or
accident by any means to cover the
risk and also to cover the loan
amount to avoid loss at the cost of
the Second Party till the release
order or repayment of the loan
amount.”
30. The aforesaid clause in
unambiguous terms binds the cold store
to insure the goods, to indemnify the
produce, to cover the risk and cover the
loan amount. This insurance policy has
to be taken at the cost of the second
party which is the farmer. Therefore,
there can be no manner of doubt that the
farmer is a beneficiary under the
policy. The farmer is, therefore,
definitely a consumer and we uphold the
orders of both the Commissions that the
complaint under the Act is
maintainable.”
The appellant herein is the ‘Karta’ of a Joint
Hindu Family. He cannot be said to be availing the
services of a medical practitioner in respect of the
pregnancy of his sister-in-law. The concept of
Joint Hindu Family does not extend to the treatment
of a pregnant sister-in-law. It is needless to
mention that no objection regarding maintainability
of complaint was raised either before the State
Commission or the National Commission, but such
issue of maintainability of the complaint goes to
the root of the case and we have found it to be non-
maintainable on the bare assertions of the complaint
alone. We find that the complaint itself was not
maintainable and, therefore, the present appeal is
dismissed.
There shall be no order as to costs.
Pending interlocutory application(s), if any,
is/are disposed of.
Date : 15-09-2021 This appeal was called on for hearing today.
UPON hearing the counsel the Court made the following
The appeal is dismissed in terms of the signed order.
Pending interlocutory application(s), if any, is/are disposed
(Signed order is placed on the file)
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The Supreme Court observed that a Karta of a Joint Hindu Family cannot file a consumer complaint in respect of deficiency in service on part of the Hospital/Doctor regarding the treatment given to his pregnant sister-in-law.The concept of Joint Hindu Family does not extend to the treatment of a pregnant sister-in-law, the bench of Justices Hemant Gupta and V. Ramasubramanian observed.In...
The Supreme Court observed that a Karta of a Joint Hindu Family cannot file a consumer complaint in respect of deficiency in service on part of the Hospital/Doctor regarding the treatment given to his pregnant sister-in-law.
The concept of Joint Hindu Family does not extend to the treatment of a pregnant sister-in-law, the bench of Justices Hemant Gupta and V. Ramasubramanian observed.
In this case, a 'karta' of a Joint Hindu Family filed a consumer complaint against a clinic alleging deficiency in service regarding the treatment given to his pregnant sister-in-law Kiran Srivastava. He stated in the complaint that he availed the services for consideration on behalf of his sister-in-law, being the Karta of Joint Hindu Family. The dismissal of complaint was upheld by the National Consumer Disputes Redressal Commission.
Referring to the provisions of the Consumer Protection Act, 1986, the bench noted that a complainant means any person who hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised and includes a beneficiary of services.
"The brother-in-law of a pregnant woman would not be a beneficiary of any services rendered by the respondent. There is no allegation that he has paid or promised any consideration for engaging the services of the respondent. The only assertion in the complaint is that he is the 'Karta' of a Joint Hindu Family, therefore, he is entitled to file a complaint on account of the alleged deficiency of service by the respondent.", the court noted.
The court added that the concept of Joint Hindu Family does not extend to the treatment of a pregnant sister-in-law.
"The appellant herein is the 'Karta' of a Joint Hindu Family. He cannot be said to be availing the services of a medical practitioner in respect of the pregnancy of his sister-in-law. The concept of Joint Hindu Family does not extend to the treatment of a pregnant sister-in-law.", the bench observed.
The court noted in this case the issue of maintainability of the complaint goes to the root of the case. Thus, the appeal was dismissed.
Case name: Jaganarayan Lal Vs Doctor Girija Tiwari
Case no.| Date: CA 2539 OF 2011 | 15 September 2021
Coram: Justices Hemant Gupta and V. Ramasubramanian
Counsel: Adv Santosh K. Mishra for appellant, Adv Gaurav Khetarpal for respondent
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1. Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court of Judicature for Rajasthan at Jaipur
passed in D.B. Civil Miscellaneous Appeal No. 2845 of 2018, by which
the Division Bench of the High Court has dismissed the said appeal
preferred by the appellant herein and has confirmed the judgment and
decree passed by the learned Family Court dissolving the marriage
between the appellant and the respondent on the ground of cruelty and
desertion by the appellant herein, the original appellant-wife has
preferred the present appeal.
2. The facts leading to the present appeal in nutshell are as under:
That the marriage between the appellant and the respondent was
solemnised on 16.11.2005. That the respondent herein was serving as
an Army Officer as Major. That out of the said wedlock, the appellant
and the respondent had one son Pranav Tyagi who is aged 13 years
presently being born on 23.2.2008. That the dispute arose between the
husband and the wife. That the appellant-wife filed number of
complaints against the respondent-husband before his employer – Army
Authorities including the extra-marital affairs of the respondent-husband.
An enquiry was initiated by the Army Authorities against the respondent-
husband for extra-marital affairs on the basis of the complaints dated
29.09.2014 and 5.2.2015 made by the appellant-wife. In the enquiry, the
respondent-husband was exonerated.
2.1 That the respondent-husband filed Case No. 1496/2016 against
the appellant-wife before the learned Family Court, Jaipur on 25.11.2014
seeking a decree of divorce and dissolution of marriage on the ground of
cruelty and desertion by the appellant-wife. That, in the meantime and
since 2012, the Army Authorities were deducting 27.5% of the salary per
month from the pay and allowances of the respondent-husband as per
Section 90(1) of the Army Act, 1950. That by judgment and decree
dated 19.05.2018, the learned Family Court passed a decree for
dissolution of marriage between the appellant and the respondent on the
ground of cruelty and desertion by the appellant-wife.
2.2 Feeling aggrieved and dissatisfied with the judgment and decree
passed by the learned Family Court dissolving the marriage between the
appellant and the respondent, the appellant herein preferred an appeal
before the High Court being D.B. Civil Miscellaneous Appeal No.
2845/2018. By the impugned judgment and order, the High Court has
dismissed the said appeal and has confirmed the judgment and decree
passed by the learned family Court. Hence, the present appeal is at the
instance of the appellant-wife.
3. We have heard Ms. Neela Gokhale, learned Advocate appearing
on behalf of the appellant. It is very unfortunate that though served, the
respondent-husband has not appeared in the present appeal and it is
reported that despite the order of status quo passed by this Court vide
interim order dated 22.11.2019, the respondent-husband has re-married.
3.1 Number of submissions have been made by the learned Advocate
appearing on behalf of the appellant-wife on the findings recorded by the
learned Family Court as well as the High Court on cruelty and desertion
by the appellant-wife. It is also the case on behalf of the appellant-wife
that subsequently and despite the order of status quo passed by this
Court on 22.11.2019, the respondent-husband has re-married and that is
why he is not appearing in the present proceedings.
3.2 It is urged on behalf of the appellant-wife that in the alternative, the
findings against the appellant-wife on “cruelty” may be expunged and
marriage may be continued to remain dissolved on account of
irretrievable breakdown of marriage since both wife and husband are
residing separately since May, 2011 and the respondent-husband has
already re-married. However, it is submitted to direct the respondent-
husband to pay maintenance to the appellant-wife and minor son –
Pranav as they have no means of maintaining themselves and have no
independent income to sustain themselves.
3.3 It is submitted that since December, 2019, the appellant-wife and
her son are not being paid any maintenance which they were receiving
from the Army Authorities as per order passed by the Army Authorities
dated 15.11.2012. It is submitted that the appellant and her son were
getting Rs. 40,000/- towards maintenance which they received from
2012 till November, 2019. It is therefore prayed to direct the respondent-
husband to pay the maintenance to the appellant and her minor son.
4. Having heard learned counsel for the appellant-wife and having
gone through the findings recorded by the learned Family Court as well
as by the High Court, on “cruelty” and “desertion” by the appellant-wife,
we are of the view that there are concurrent findings recorded by the
learned Family Court as well as the High Court on “cruelty” and
“desertion” by the appellant-wife, which as such are on appreciation of
evidence on record. The appellant-wife made number of complaints
against the respondent-husband to his employer – Army Authorities
making serious allegations of extra-marital affairs. On the basis of the
complaints made by the appellant-wife, an enquiry was initiated by the
Army Authorities and the Army Authorities exonerated the respondent-
husband of the allegation of extra-marital affairs.
5. However, considering the fact that both, the appellant-wife and the
respondent-husband are not staying together since May, 2011 and
therefore it can be said that there is irretrievable breakdown of marriage
between them. It is also reported that the respondent-husband has
already re-married. Therefore, no useful purpose shall be served to
further enter into the merits of the findings recorded by the courts below
on “cruelty” and “desertion” by the appellant-wife. Therefore, in the facts
and circumstances of the case and in exercise of powers under Article
142 of the Constitution of India, the decree passed by the learned Family
Court, confirmed by the High Court, dissolving the marriage between the
appellant-wife and the respondent-husband is not required to be
interfered with on account of irretrievable breakdown of marriage.
However, at the same time, the respondent-husband cannot be
absolved from his liability and responsibility to maintain his son Pranav
till he attains the age of majority. Whatever be the dispute between the
husband and the wife, a child should not be made to suffer. The liability
and responsibility of the father to maintain the child continues till the
child/son attains the age of majority. It also cannot be disputed that the
son Pranav has a right to be maintained as per the status of his father. It
is reported that the mother is not earning anything. She is residing at
her parental house at Jaipur. Therefore, a reasonable/sufficient amount
is required for the maintenance of her son including his education etc.
which shall have to be paid by the respondent-husband, irrespective of
the decree of dissolution of marriage between the appellant-wife and the
respondent-husband. The amount which was being paid pursuant to the
order passed by the Army Authorities on 15.11.2012 has also been
stopped by the respondent-husband since December, 2019.
6. In view of the above and for the reasons stated above, the present
appeal stands disposed of by confirming the decree of
divorce/dissolution of the marriage between the appellant-wife and the
respondent-husband. However, the respondent-husband is directed to
pay Rs.50,000/- per month with effect from December, 2019 to the
appellant-wife towards the maintenance of son Pranav as per the status
of the respondent herein. The arrears @ Rs. 50,000/- per month since
December, 2019 to November, 2021 shall be paid within a period of eight
weeks from today. The current maintenance @ Rs. 50,000/- per month
from the month of December, 2021 onwards be deducted from the salary
of the respondent-husband by the Army Authorities, which shall be
directly credited in the bank account of the appellant-mother. The
appellant-mother is directed to furnish the bank details to the Army
Authorities within a period of one week from today. It is further ordered
that if the arrears @ Rs. 50,000/- per month commencing from
December, 2019 till November, 2021, as ordered hereinabove is not paid
by the respondent-father within a period of eight weeks from today, in
that case, the recovery of arrears + monthly maintenance shall be
worked out by the Army Authorities and the same shall be deducted in
equal monthly instalments from the salary of the respondent-father, so
as not to exceed 50% of the total monthly pay and allowances of the
7. The instant appeal stands disposed of, with the aforesaid
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The liability and responsibility of the father to maintain the child continues till the child/son attains the age of majority, the Supreme Court observed in a judgment dissolving marriage of a couple."It also cannot be disputed that the son has a right to be maintained as per the status of his father", the Court added.Further, the court said that a child should not be made to suffer due...
The liability and responsibility of the father to maintain the child continues till the child/son attains the age of majority, the Supreme Court observed in a judgment dissolving marriage of a couple.
"It also cannot be disputed that the son has a right to be maintained as per the status of his father", the Court added.
Further, the court said that a child should not be made to suffer due to disputes between his parents.
In this case, the wife had approached the Apex Court against the High Court judgment that dismissed her appeal against the judgment of Family Court dissolving the marriage on the ground of cruelty and desertion. She requested the court to expunge the findings against her on "cruelty". Taking note of the factual aspects, the bench comprising Justices MR Shah and AS Bopanna observed thus:
However, considering the fact that both, the appellant-wife and the respondent-husband are not staying together since May, 2011 and therefore it can be said that there is irretrievable breakdown of marriage between them. It is also reported that the respondent-husband has already re-married. Therefore, no useful purpose shall be served to further enter into the merits of the findings recorded by the courts below on "cruelty" and "desertion" by the appellant-wife. Therefore, in the facts and circumstances of the case and in exercise of powers under Article 142 of the Constitution of India, the decree passed by the learned Family Court, confirmed by the High Court, dissolving the marriage between the appellant-wife and the respondent-husband is not required to be interfered with on account of irretrievable breakdown of marriage.
The court added that the husband cannot be absolved from his liability and responsibility to maintain his son till he attains the age of majority.
"Whatever be the dispute between the husband and the wife, a child should not be made to suffer. The liability and responsibility of the father to maintain the child continues till the child/son attains the age of majority. It also cannot be disputed that the son has a right to be maintained as per the status of his father."
While confirming the divorce decree, the bench directed the husband to pay Rs.50,000/- per month with effect from December, 2019.
Case name: Neha Tyagi vs Lt. Col Deepak Tyagi
Case no. and Date: CA 6374 OF 2021 | 1 Dec 2021
Coram: Justices MR Shah and AS Bopanna
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Heard the learned counsel for the petitioner.
This petition is filed by the petitioner for transfer of
Complaint No. 3105 of 2021 titled as “Vishal Mahajan vs. Dinesh
Mahajan” filed under Sections 420 and 506 of the Indian Penal Code
pending in the Court of Chief Judicial Magistrate, Jammu to Tis
In Ground ‘D’ of the Transfer Petition, an apprehension of
threat of life merely on receiving notice on the above-mentioned
complaint, has been shown. No complaint has been lodged by the
petitioner to the authorities concerned or before any Court.
of threat of life is not a sufficient ground to
transfer a case, without lodging a complaint or substantiating the
said ground.
The learned counsel appearing on behalf of the petitioner
prays for exemption from personal appearance by relying on a
judgment titled “Puneet Dalmia vs. Central Bureau of Investigation,
Hyderabad” reported in 2020 12 SCC 695, inter-alia contending that
exemption from personal appearance may be granted. Considering the
facts of the said case (Puneet Dalmia vs. Central Bureau of
Investigation, Hyderabad supra), in which the exemption was refused
by the Court and as prayed for by the petitioner, this Court while
considering the facts and circumstances of the said case, granted
exemption from personal appearance.
The order passed by this Court in Puneet Dalmia vs. Central
Bureau of Investigation, Hyderabad (supra) does not apply in the
instant transfer petition merely on the basis of apprehension.
In view of the afore-said, this Court does not find any ground
to transfer the Complaint No. 3105 of 2021 pending in the Court of
Chief Judicial Magistrate, Jammu to Tis Hazari Courts, Delhi.
The transfer petition is, accordingly, dismissed.
Pending application(s), if any, stand disposed of.
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The Supreme Court observed that mere apprehension of threat of life is not a sufficient ground to transfer a case, without lodging a complaint or substantiating the said ground.In this case, the petition sought transfer of Complaint filed under Sections 420 and 506 of the Indian Penal Code pending in the Court of Chief Judicial Magistrate, Jammu to Tis Hazari Courts, Delhi.One of the... The Supreme Court observed that mere apprehension of threat of life is not a sufficient ground to transfer a case, without lodging a complaint or substantiating the said ground. In this case, the petition sought transfer of Complaint filed under Sections 420 and 506 of the Indian Penal Code pending in the Court of Chief Judicial Magistrate, Jammu to Tis Hazari Courts, Delhi. One of the grounds raised in the petition was that there is an apprehension of threat of life. "No complaint has been lodged by the petitioner to the authorities concerned or before any Court. Mere apprehension of threat of life is not a sufficient ground to transfer a case, without lodging a complaint or substantiating the said ground. ", the court noted. The petitioner also relied on the decision in "Puneet Dalmia vs. Central Bureau of Investigation, Hyderabad" 2020 12 SCC 695, to seek exemption from personal appearance. "Considering the facts of the said case (Puneet Dalmia vs. Central Bureau of Investigation, Hyderabad supra), in which the exemption was refused by the Court and as prayed for by the petitioner, this Court while considering the facts and circumstances of the said case, granted exemption from personal appearance.
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The present appeal impugnes the judgment dated 16.12.2017, passed by the High
Court of Himachal Pradesh in Criminal Appeal No. 3/2017, whereby conviction of the
appellant-Amar Chand under Section 20 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (NDPS Act), vide judgment dated 20.10.2016, passed by the
Special Judge, District Kullu, Himachal Pradesh in Sessions Trial No.27 of 2015, has been
upheld. The appellant has been sentenced to rigorous imprisonment for a period of 10
years, pay fine of Rs. 1,00,000/-, and in default, to undergo simple imprisonment for a
period of 1 year.
Having heard the learned counsel for the parties, we are inclined to allow the appeal
by giving the appellant benefit of doubt.
It has come on record that the site plan/spot map, marked Ex. PW-5/D, which was
statedly prepared at the spot where recovery was made on 03.05.2015, is wrong and
Head Constable Hitesh Kumar (PW-4), in his crossexamination, has accepted that
in the site plan, the river has been shown on the left-side going towards Manikaran.
However, this is incorrect as the river should have been shown on the right-side and the
hill-side should have been shown on the left-side. This would indicate that the location of
the police vehicle used for Nakabandi has been wrongly indicated. Similarly, the place
where the appellant had allegedly thrown the rucksack (Pithu bag) has been wrongly
Head Constable Sunil Kumar (PW-5), the Investigating Officer, has deposed in his
examination-in-chief as having prepared the spot/site plan, marked as Ex.PW-5/D. In his
cross examination, he had to accept that the site plan is incorrect as the river is shown on
the right-side while going from Bhuntar towards Manikaran. He has stated that this was a
mistake, albiet a miss so fundamental which does dent and cast grave doubt on the
prosecution version on the place and manner of recovery.
This apart, the prosecution has not been able to show and prove the scribe/author
of the arrest memo, marked as Ex.PW-4/A, and the personal body search memo
(Jamatalashi), marked as Ex. PW-4/B.Head Constable Hitesh Kumar (PW-4) has
accepted that he had not put his signatures on the arrest memo, marked as Ex.PW-4/A,
and the personal body search memo (Jamatalashi), marked as Ex. PW-4/B, though his
name is mentioned therein as an attesting witness. The second attesting witness, Head
Constable Janesh/Jinesh Kumar did not depose as a witness. Janesh Kumar has also not
signed the arrest memo, marked as Ex.PW-4/A, and the personal body search memo,
marked as Ex. PW-4/B as an attesting witness.
Head Constable Hitesh Kumar (PW-4) professed that the arrest memo, marked as
Ex.PW-4/A, was prepared by Head Constable Sunil Kumar (PW-5). However, Head
Constable-Sunil Kumar (PW-5) proffered that he is not the scribe/author of the arrest
memo, marked as Ex.PW-4/A, and the personal body search memo (Jamatalashi),
marked as Ex. PW-4/B.
The appellant had taken the plea and defence that he was arrested from the bus
stand at Hathithan on 03.02.2015 at about 6:30 p.m., while he was waiting to board a bus.
4-5 women were also present there. One unclaimed bag was found under a bench by two
Police officers who were present there. Opening the said bag, charas was found.
Thereupon, the appellant has been falsely implicated. There were no public witnesses and
as per the version of the Police, the public witnesses, in spite of efforts made for 20-30
minutes, could not be found, the location being uninhabited.
In view of the aforesaid lacunae and gaps in the case of the prosecution, when
taken collectively and together, we feel, that the conviction of the appellant under Section
20 of the NDPS Act cannot be sustained. The appellant must be given benefit of doubt.
Accordingly, the appeal is allowed and the appellant’s conviction and sentence
under section 20 of the NDPS Act is set aside. The appellant shall be released forthwith
unless he is detained in accordance with law for any other offence. In case the appellant
has deposited the fine, the same shall be refunded to him.
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The Supreme Court recently acquitted a person, who was sentenced to 10 years imprisonment and pay Rs 1 lakh fine for the offence of possessing charas. Granting him benefit of doubt due to the lacunae and gaps in the prosecution, a bench comprising Justices Sanjiv Khanna and JK Maheshwari set aside the conviction of the appellant under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
The appellant was sentenced by by Special Judge District Kullu, Himachal Pradesh, and the sentence was upheld by the High Court of Himachal Pradesh.
The Supreme Court noted that the site plan/spot map, which was prepared at the spot where the recovery of the drugs was made, was wrong and incorrect.
The bench observed that Head Constable (PW-4) had in its cross examination has accepted the site plan was wrongly prepared. The nakabandi and even the place where the appellant had allegedly thrown the rucksack was also stated wrong. The bench had also noted that another Head Constable (PW-5) who is the Investigating Officer had also accepted in the cross examination that the site plan was incorrect.
The bench observed that the prosecution has also not been able to show and prove the author of the arrest memo and the personal body search memo. PW-4 accepted that he had not put his signatures on the arrest memo or personal body search memo though his name was mentioned as an attesting witness. The bench also noted that the PW-4 had professed that the arrest memo was prepared by PW-5 however the PW-5 proffered that he is not the author of the arrest memo and the personal body search memo.
The bench also noted that the appellant had made the plea that he was arrested from the bus stand while he was waiting to board a bus. One unclaimed bag was found under a bench in which charas was found. It was the stand of the appellant that he was falsely implicated and there were no public witnesses as per the Police.
"In view of the aforesaid lacunae and gaps in the case of the prosecution, when taken collectively and together, we feel, that the conviction of the appellant under Section 20 of the NDPS Act cannot be sustained. The appellant must be given benefit of doubt", the bench noted.
Amar Chand vs. State of Himachal Pradesh – C. A. No. 2035/2022 arising out of SLP (Crl.) No. 752/2019
For Petitioner(s) Mr. Aditya Dhawan, Adv. Ms. Kiran Dhawan, Adv. Mr. Chander Shekhar Ashri, AOR
For Respondent(s) Mr. Mohan Lal Sharma, AOR Ms. Shikha Sharma, Adv. Mr. Rajbir Singh, Adv.
Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 20- Supreme Court sets aside conviction- gives benefit of doubt after noting gaps in the prosecution case- arrest memo, body search memo not proved- site plan wrongly prepared- no independent witnesses
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1. On 07.03.2000 at about 1:00 p.m. Vikas Kumar Singh, aged about
22 years was going from his house towards Bhandar for performing
physical exercise. It is the case of the prosecution that based on the
recorded at Sadar Hospital, Garhwa at 2:00 p.m., when Vikas Kumar
Singh reached in front of the house of Ramadhar Ram, all of a sudden six
person who were sitting on the road surrounded him; namely Pappu
Tiwari (appellant in Crl. A. No.1492/2021), Sanjay Ram, Uday Pal, Ajay
Pal, Pintu Tiwari and Law Tiwari (appellant in Crl. A. No.1202-
1203/2014). Pappu Tiwari fired from his pistol at Vikas Kumar Singh as
a result of which he got injured and fell down by the side of the road.
The other accused are alleged to have been carrying knives and they
pounced upon him and inflicted knife blows on his entire body. Hearing
the commotion, Pankaj Kumar Singh rushed in the direction. Seeing the
said informant and other villagers coming, the accused persons fled
towards the path made over the Ahar. They are stated to have also
threatened persons present against giving any evidence in the matter.
Later on, as per the informant, he claims to have derived knowledge that
they fled in a Maruti Van bearing registration No.DL-2C-5177, which
belonged to Pintu Tiwari. On the basis of the fardbeyan, FIR Garhwa
P.S. Case No.33 of 2000 was registered under Sections 302 and 34 of the
Indian Penal Code, 1860 (hereinafter referred to as the ‘IPC’) and
Section 27 of the Arms Act, 1959 (hereinafter referred to as the ‘Arms
Act’) against the six named accused persons.
2. Assistance Sub-Inspector (for short ‘A.S.I’) Rajnikant Jha
prepared an inquest report but failed to identify the fire arm injury. The
post-mortem was conducted by Dr. Mahesh Prasad Singh, Medical
Officer, Sub-Divisional Hospital, Garhwa and the cause of death was
opined due to shock and haemorrhage caused by vital and multiple
injuries. Injuries one and two were identified as firm arm injuries. The
Maruti van was subsequently recovered on 09.03.2000. All the accused
were arrested albeit, Law @ Upendra Tiwari was arrested on 16.03.2000.
On investigation being completed, the chargesheet was submitted on
02.06.2000 against all the six persons under Sections 302 and 34 of the
IPC and Section 27 of the Arms Act and cognizance of the offence was
taken on the same date. The case was committed to the court of Sessions
Judge on 26.07.2000 where all six accused persons were charged under
Section 302 read with Section 34 of the IPC and Pappu Tiwari was
additionally charged under Section 27 of the Arms Act.
3. In the course of Sessions Trial No.159/2001, the prosecution
examined 22 witnesses and the defence examined two witnesses. In
terms of the judgment dated 27.05.2002, all the accused persons were
convicted as charged and in terms of order dated 28.05.2002, they were
sentenced to undergo imprisonment for life. Pappu Tiwari was
additionally sentenced to undergo rigorous imprisonment for three years
under Section 27 of the Arms Act.
4. The challenge to the judgment of the trial court was laid by two
separate appeals. Law Tiwari and Pintu Tiwari jointly filed Criminal
Appeal No.242/2002 while the remaining four convicts filed Criminal
Appeal No.398/2002. The High Court of Jharkhand vide a common
judgment dated 07.05.2012 affirmed the judgment of conviction of the
trial court against all the six convicts. However, in pursuance of an
inquiry conducted by the learned Chief Judicial Magistrate on the aspect
of juvenility, the High Court opined that since Pintu Tiwari was a minor
on the date of the incident and had already remained in jail for more than
three years, no further order of detention could be passed in view of the
provisions of Sections 15 & 16 of the Juvenile Justice (Care and
Protection of Children) Act, 2000. Insofar as Sanjay Ram and Uday Pal
are concerned, both of them accepted the High Court judgment. That left
three appellants, who took up the matter further to this Court.
5. Pappu Tiwari filed a Special Leave Petition (for short ‘SLP’) with
an application seeking exemption from surrendering. That application
was dismissed by this Court on 09.11.2012 granting four weeks time to
Pappu Tiwari to surrender. On a prayer being made, a further extension
of four weeks was granted to Pappu Tiwari on 18.02.2013 to surrender
failing which the SLP would be dismissed without reference to the Court.
Pappu Tiwari did not surrender and, thus, the SLP came to be dismissed
in terms of the order dated 18.02.2013.
6. Law @ Upendra Tiwari and Ajay Pal chose to jointly prefer an
SLP along with an application for condonation of delay. The appeals
came up for consideration on 19.11.2013 before this Court when the
appeal qua Ajay Pal (petitioner No.2) was dismissed while issuing notice
qua the appeal filed by Law Tiwari. On 07.05.2014, leave was granted
qua the said appeal which came to be registered as Criminal Appeal
7. Pappu Tiwari was finally apprehended on 25.06.2015. Thereafter,
he filed an application seeking restoration of his SLP and condonation of
delay in filing the restoration application but after issuing notice, the
same was dismissed on 07.03.2017 on the ground of failure to explain the
delay of 862 days appropriately. Pappu Tiwari filed a review petition
along with an application seeking bail on 22.01.2021. The review petition
was considered and allowed on 27.01.2021. The appeals were thereafter
directed to be listed.
8. In the mean time, Law Tiwari was released on 28.09.2016 after
having served out his sentence and, thus, on 01.09.2021 it was inquired
whether he was still interested in prosecuting the appeal to which the
answer was in the affirmative as Law Tiwari wanted to argue the aspect
of his conviction.
9. As far as Pappu Tiwari is concerned, his bail application was
dismissed on 04.10.2021 but with a direction for the appeal itself to be
taken up for hearing. Leave was also granted in the said SLP on
10. The aforesaid is the background on which these two appeals were
listed before us for hearing.
Crl.A. Nos.1202-1203/2014 (Appeal by Law @ Upendra Tiwari):
11. Insofar as Law Tiwari is concerned, a query was posed to the
learned counsel that on the appeal being jointly preferred by him (Law
Tiwari) and Ajay Pal and appeal of Ajay Pal having been dismissed, the
evidence being common, the role being common, i.e., five people
collectively inflicting knife injuries on the deceased after he was shot,
what could be the defence, which would be available to Law Tiwari.
12. Learned counsel fairly stated that his appeal is within a limited
scope and this Court also admitted the appeal on his plea of alibi.
13. Learned counsel drew our attention to the judgment of the trial
court as according to him there was hardly any discussion in the appellate
court judgment on the particular aspect. The trial court referred to the
depositions of the two defence witnesses, Rajendra Yadav (DW-1) and
Samsuddin Ansari (DW-2). DW-1 deposed in his examination-in-chief
that on 24.01.2000 he had x-rayed the right knee of Law @ Upendra
Tiwari. He proved the cash memo (Ex. A) and stated that he had x-rayed
the knee on the advise of Dr. M.P. Singh. DW-2 stated that he knew Law
@ Upendra Tiwari and on 24.01.2000, he had come to Garhwa from
Silliya Donger by bus. He saw Law Tiwari after falling from motorcycle
who was reeling in pain. He saw another man holding him. A rickshaw
was called and Law Tiwari was put on rickshaw and brought to Garhwa
Hospital to Dr. M.P. Singh, who advised an x-ray. The x-ray was done in
Janta Clinic and the doctor had opined that his leg had broken near the
knee. The man who is stated to have helped Law Tiwari was identified
as Kanchan Yadav. After handing over Law Tiwari to him, DW-2 went
14. Two witnesses were also examined as court witnesses on the
prayer of the defence – Almuddin Khan (CW-1), who proved the
certificate of Dr. M.P. Singh (Ex. A) and receipt of medicine (Ex. A/1) as
well as Akshay Kumar Mahto (CW-2) who stated that he knew Law
Tiwari, that Law Tiwari had come to Garhwa for marketing, and had
gone to see the ailing son of his cousin, Mohan Prasad Mahto in hospital.
He claimed to be a witness to the treatment and that Law @ Upendra
Tiwari was on bed with his leg plastered though he did not talk to him.
In view of the said testimony, the argument which was advanced before
the trial court as recorded as also before us was that since on the date of
the occurrence his leg was fractured, it was not possible for Law Tiwari
to have taken part in the crime and he was falsely implicated in the case.
The trial court noted that neither the x-ray plate nor the advise of Dr.
M.P. Singh had been produced in court. The doctor had also not been
produced by the defence. No papers of admission or treatment at the
Garhwa Hospital have been produced in support of the case of admission
or treatment of his fractured leg in hospital and the certificate did not
support such a case.
15. On the other hand, the case of the prosecution was and is that inter
alia as per the fardbeyan, a formal FIR was registered in PS case
No.6/2000 under Section 364, 365 and 120B of the IPC. The date of
occurrence was 26.01.2000 and the allegation was of kidnapping for
purposes of murder in that case. Law Tiwari was named as an accused in
that case too. The occurrence was of 26.01.2000 and the defence is that
the leg of Law Tiwari was fractured on 24.01.2000. Law Tiwari was
convicted under Section 365 of the IPC vide judgment dated 28.02.2000.
We may, however, note that as per learned counsel for the appellant in the
appeal filed against that conviction, Law Tiwari was acquitted on
16. Learned counsel for the State also submitted that there are three
eye witnesses, Pankaj Kumar Singh (PW-6), Subodh Kumar Singh (PW-
13) and Chandraman Singh (PW-18) and their testimonies have broadly
been consistent, which assign the role to Law Tiwari. The endeavour to
apprehend him on 07.03.2000 was not successful as he was found
absconding by the IO on six different occasions when his premises were
visited. He was only subsequently arrested and taken on remand on
04.04.2000. The contention of learned counsel for the State was that
neither the advise of Dr. M.P. Singh nor the x-ray having been produced,
and Dr. M.P. Singh not having been produced as a defence witness or
summoned, there was not a piece of paper evidencing the admission and
treatment of Law Tiwari in the hospital which could be produced in
support of his plea of alibi. He also drew our attention to the fardbeyan
to indicate that Law Tiwari and other accused had demanded a
motorcycle of the deceased to go to Meral in connection with a case,
which was declined. Learned counsel for the State also submitted that
the conduct of Law Tiwari even during custody was not proper as he had
extended a threat to the informant and the informant had suffered fire
arm injury on 13.06.2001. Consequently, case No.107/2001 was
registered at the Garhwa Police Station. In the end it was contended that
there was no attempt made to distinguish the appellant’s role from that of
Ajay Pal and the appeal of Ajay Pal being dismissed, the only aspect
which had to be examined was whether the concurrent findings of the
two courts below rejecting the plea of alibi was required to be interfered
with by this Court when the burden lay heavy on the appellant as when
such a plea is raised the accused must discharge that burden. We may
refer to the judicial view in this behalf in Vijay Pal v. State (Government
of NCT of Delhi)1 wherein this Court held that:
“ 27. In our considered opinion, when the trial court as well as the
High Court have disbelieved the plea of alibi which is a concurrent
finding of fact, there is no warrant to dislodge the same. The evidence
that has been adduced by the accused to prove the plea of alibi is
sketchy and in fact foes not stand to reason. It is not a case where the
accused has proven with absolute certainty so as to exclude the
possibility of his presence at the place of occurrence. The evidence
adduced by the accused is not of such quality that the Court would
entertain a reasonable doubt. The burden on the accused is rather
heavy and he is required to establish the plea of alibi with certitude.”
In Jitender Kumar v. State of Haryana2 this Court stated that:
“71. …. The burden of establishing the plea of alibi lay upon the
appellants and the appellants have failed to bring on record any such
evidence which would, even by reasonable probability, establish their
plea of alibi. The plea of alibi in fact is required to be proved with
certainty so as to completely exclude the possibility of the presence of
the accused at the place of occurrence and in the house which was the
home of their relatives.”
17. We have given our thought to the limited scope of appeal of Law
Tiwari and we do not find any merit whatsoever in the same. It has been
rightly pointed out by the learned counsel for the State that the burden
was on Law Tiwari to establish the plea of alibi (Vijay Pal3 and Jitender
Kumar4), which he failed to discharge. It was not a case where
opportunity was not granted to him. In fact, two witnesses were
produced in defence by Law Tiwari and two court witnesses were also
summoned. However, the relevant evidence was not led.
18. It has been rightly pointed out that the most material witness
would have been Dr. M.P. Singh, who was not produced as a defence
witness nor summoned.
19. We may note that there is some identity confusion in the judgment
of the trial court as a reference has been made to one Dr. M.P. Singh
(PW-1), who is not the same doctor. The advise stated to be given by Dr.
M.P. Singh was also not proved nor was the x-ray plate produced. DW-2
stated that he took Law Tiwari to Garhwa Hospital but no papers of
admission or treatment at the hospital were produced in support of the
treatment of a fractured leg in the hospital. Thus, on all these aspects
Law Tiwari failed to discharge the burden to establish the plea of alibi
and, thus, the trial court and the High Court cannot be said to have fallen
into any error in rejecting the plea of alibi. This was the only aspect to be
examined by us.
20. We may note that there is discussion in the trial court judgment on
the aspect of another case registered against Law Tiwari and his
conviction in the said case. The incident was contemporaneous to his
alleged fracture and, thus, the plea based on the fracture was found to be
unsustainable as Law Tiwari was convicted in the said case. He has,
however, filed the order of acquittal in appeal. This is the reason we
have not delved on this aspect but in view of our finding aforesaid this
aspect does not remain crucial.
21. The result of the aforesaid is that we find no merit in the criminal
appeal of Law @ Upendra Tiwari.
Crl.A. No.1492/2021 (Appeal by Pappu Tiwari):
22. Learned counsel for the appellant sought to raise multifarious pleas
that the prosecution has to prove its case beyond reasonable doubt. This
is not something which is really required to be stated and is the basic
principle of criminal jurisprudence. Suffice to say that learned counsel
sought to build on that principle by contending that if a reasonable doubt
could be created in the story of the prosecution, the appellant must
succeed.
23. In respect of the aforesaid, learned counsel sought to refer to the
testimonies of the eye witnesses. Pankaj Kumar Singh, the informant is
the brother of the deceased who was examined as PW-6. In the
fardbeyan he had not taken the name of any witnesses though he referred
to them as “many witnesses”. It was stated that there was contradiction
in the testimonies of the eye witnesses. He further submitted that PW-13
was a chance witness and that his presence at the place was doubtful as
he came to the area only ten days prior to the incident for appearing in
the matriculation examination and could not have known anybody.
24. We may, however, note that on perusal of the evidence it cannot be
said that there are any major discrepancies in the testimony of the eye
witnesses as to throw doubt on the story of the prosecution. There are
three eye witnesses. The testimony of the informant, PW-6, cannot be
waived away merely because it is the testimony of a close relative.
Similarly, PW-13 albeit a chance witness, explained his presence and
stated that he could identify the accused, who were well-known in the
area, even though in a negative sense. We may note, however, insofar as
the third eye witness, PW-18, is concerned, the High Court has not relied
upon his testimony on account of delay of more than two months in
examination of this witness who claimed to be an eye witness and was
the maternal uncle of the deceased.
25. Learned counsel vehemently sought to contend that the FIR was
ante timed and that itself would throw a doubt on the story. The FIR was
recorded on 07.03.2000 in the early afternoon but reached the court on
the next date on 08.03.2000 even when the distance between the court
and the police station was hardly a kilometre.
26. On the other hand learned counsel for the State pointed out that the
incident occurred at 1300 hours on 07.03.2000, at 1343 hours the
telephone call from the hospital reported that the injured had come to the
hospital and the time of the recording of the fardbeyan is 1400 hours.
The inquest report was prepared at 1410 hours and the FIR was
registered at 1425 hours. The body was received for post-mortem at
1445 hours and simultaneously the IO reached the place of occurrence.
The post-mortem commenced at 1550 hours. The IO returned home at
midnight and had gone to the house of the accused several times. The
FIR, thus, reached the court on 08.03.2000. These sequences of timings
and dates were pointed out to show that there could be no scope of ante
dating the FIR.
27. We may examine this aspect in the context of the judgment cited
by learned counsel for the appellant in Sudarshan & Anr. v. State of
Maharashtra5. The relevant paragraph pointed out by learned counsel
for the appellant shows that Column 15 of the FIR in the said case
pertained to date and time of dispatch to the Court which was left blank.
The IO could not prove as to when and how the FIR was sent to the
court. The necessity of doing so was emphasised in the judgment as as
the primary purpose is to ensure that truthful version is recorded in the
FIR and there is no manipulation or interpolation therein. That is the
reason this statutory requirement is provided under Section 157 of the
Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the
Cr.P.C.’). There was grave suspicion qua the FIR.
28. On the touchstone of the principles laid down aforesaid it can
hardly be said that the mandate of law under Section 157 Cr.P.C. has not
been met. On the intimation of the incident, the fardbeyan was recorded
expeditiously, inquest report prepared and the FIR was registered within
25 minutes of the same. The body was sent for post-mortem immediately
and the FIR was sent to the court the next morning. We cannot say that
there is any loophole which could have been utilised or that the FIR was
ante timed and, thus, the objective of the requirement for sending the FIR
to the Magistrate has been complied with. Thus, there is no merit in this
29. Now turning to the next plea on which a lot of emphasis was
placed by learned counsel for the appellant, it was urged that there was a
major discrepancy between the inquest report (Ex.3) and the post-mortem
report (Ex.1). This aspect was actually sought to be linked to the plea of
the FIR being ante timed. There are stated to be differences in the
version which would indicate that the fardbeyan was lodged only after
the post-mortem report. The factual basis for the same is stated to be that
in the inquest report six injuries are mentioned with no mention of
gunshot injury while the post-mortem report shows that there are 26
injuries including the gunshot injury. The pistol was not recovered from
him nor any cartridge found and A.S.I. Rajnikant Jha who recorded both
the fardbeyan as well as the inquest report was not examined by the
prosecution. On this aspect learned counsel relied upon the observations
in Maula Bux & Ors. v. State of Rajasthan6.
30. On the other hand learned counsel for the State sought to submit
that inquest report cannot be treated as substantive evidence but may be
utilised for contradicting the witness of inquest (Suresh Roy v. State of
Bihar7). He submitted that the inquest report is not really an evidence by
itself and cannot be pitted against the evidence of the medical witness in
court (Surjan & Ors. v. State of Rajasthan 8). Learned counsel drew our
attention to the observations in Pedda Narayana & Ors v. State of
Andhra Pradesh9 opining that the object of proceedings under Section
174 Cr.P.C. is merely to ascertain that whether the person has died under
suspicious circumstances or an unnatural death and if so what is the
apparent cause of death. The details, however, as to how the deceased
was assaulted or who assaulted him would be foreign to the scope of
proceedings under Section 174 of the Cr.P.C., nor are such details
required to be mentioned in the inquest report (Yogesh Singh v.
31. Learned counsel next turned to the more recent judgment of this
Court in Tehseen Poonawalla v. Union of India 11 opining that the
purpose of holding an inquest is limited and the inquest report does not
constitute substantive evidence. As compared to an inquest report, the
doctor who conducts the post-mortem examination, examines the body
from a medico-legal perspective. It is, thus, the post-mortem report that
is expected to contain the details of injuries through a scientific
examination. In that context he submitted that Maula Bux & Ors.12 case
did not help the appellant as a police officer who prepared the inquest
panchnama is not an expert in medical jurisprudence.
32. On examination of the aforesaid pleas, insofar as the factual
context is concerned, there is little doubt that there is not a minor but a
major difference in recording the number of injuries suffered by the
deceased in the inquest report and the post-mortem report. However, this
will not be fatal in our view. We say so keeping in mind the purpose of
an inquest report, which is not a substantive evidence. The objective is to
find out whether a person who has died under suspicious circumstances,
what may be the apparent cause of his death. In the present case the
death was unnatural. There were wounds. There is no doubt that it is a
homicide case. The expert is the doctor who carries out the post-mortem
and has been medico legal expert. The two fire arm injuries have been
clearly identified with the wounds at the entry and at the exit being
identified. We have already discussed the proximity of the time period
between the intimation and the police proceeding with it right up to the
stage when the post-mortem commenced. We do not find any substance
in this plea.
33. The third aspect emphasised by learned counsel for the appellant
was the alleged discrepancy between the medical evidence and ocular
evidence. PW-1 found 26 injuries on carrying out the post-mortem on
the deceased. Learned counsel pointed out that on being asked about the
distance from which the fire arm was used, he did not express any
opinion. Learned counsel also points out that the case of prosecution is
that after the fire arm injury by Pappu Tiwari, the deceased fell down and
the other accused persons assaulted him with knives. No explanation is
forthcoming on the backside of the deceased. As per the story of the
prosecution, the witness was going towards the gym at around 1:00 p.m.
but the post-mortem report reveals that the stomach was empty and the
rectum and the bladder full which would show that the person had not
eased himself and had also not taken his breakfast. This should be a
position in the morning hours and not in day time.
34. On the other hand, learned counsel for the State referred to the
testimony of the eye witnesses as also of the medical officer PW-1. On
the issues such as what fire arm was used, whether the injuries were
caused by bullet or pellet and the distance from which the fire arm was
used, it was submitted that where the weapon and ammunition is of
uncertain make and quality, the normal pellet pattern based on standard
weapon and ammunition cannot be applied with accuracy (Prahlad
Singh & Ors. v. State of M.P.13).
35. On consideration of this plea, we find that really there is no
discrepancy between the medical and ocular evidence but too much is
sought to be made out by learned counsel for the appellant on the doctor
not opining about the distance from which the fire arm injury was
caused. Further, the eye witnesses are categorical that the other accused
attacked the deceased with knives. In such a process of five persons
attacking the deceased it cannot be said that the deceased would be lying
in the same position and, thus, there is every possibility of injuries both
at the back and front. In the nature of the incident and the testimony of
the eye witnesses, a doubt must be cast on the story and not merely some
aspect of the food consumption pointed out. We cannot really see any
such infirmity which would cause us to reverse the concurrent findings of
the courts below.
36. The remaining arguments of learned counsel for the appellant are
based on plea of defective investigation, absence of independent
witnesses but then there is no reason why the eye witnesses story, which
is believable should not be given full credence. The test which is applied
of proving the case beyond reasonable doubt does not mean that the
endeavour should be to nick pick and somehow find some excuse to
obtain acquittal.
37. The last aspect urged by learned counsel for the appellant was that
the IO has referred to the antecedents of the appellant and other accused,
which has been erroneously taken into account by the High Court
contrary to the statutory provisions of Section 53 of the Indian Evidence
Act, 1872. The said provision stipulates that the previous bad character
is not relevant except in reply, i.e., unless evidence has been given of a
good character in which case it becomes relevant. However, what has
happened in the present case is that the part of the testimony of the IO
that the accused persons were dangerous was not supported by any
evidence being led nor has it weighed with the courts below. PW-13 was
able to identify the appellants because they used to pass through the road
and are stated to have been known to be “boss of the area”. We are, thus,
of the view that despite best endeavour learned counsel for the appellant
has not been able to cast any doubt on the impugned judgment of the trial
court and the High Court.
38. In the conspectus of the discussion aforesaid, we are of the view
that the story put forth by the prosecution has been established and has
not been dented by the appellant accused so as to cast a doubt and entitle
them to benefit of doubt. The result is that both the appeals are dismissed
leaving the parties to bear their own costs.
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"The test which is applied of proving the case beyond reasonable doubt does not mean that the endeavour should be to nick pick and somehow find some excuse to obtain acquittal.", the Supreme Court remarked in a judgment dismissing appeals filed by murder accused.Pappu Tiwari, Sanjay Ram, Uday Pal, Ajay Pal, Pintu Tiwari and Law Tiwari were convicted by the Trial Court under Section 302 of...
"The test which is applied of proving the case beyond reasonable doubt does not mean that the endeavour should be to nick pick and somehow find some excuse to obtain acquittal.", the Supreme Court remarked in a judgment dismissing appeals filed by murder accused.
Pappu Tiwari, Sanjay Ram, Uday Pal, Ajay Pal, Pintu Tiwari and Law Tiwari were convicted by the Trial Court under Section 302 of the Indian Penal Code. The High Court of Jharkhand vide a common judgment affirmed the judgment of conviction of the trial court against all the six convicts. In pursuance of an inquiry conducted by the learned Chief Judicial Magistrate on the aspect of juvenility, the High Court opined that since Pintu Tiwari was a minor on the date of the incident and had already remained in jail for more than three years, no further order of detention could be passed in view of the provisions of Sections 15 & 16 of the Juvenile Justice (Care and Protection of Children) Act, 2000. Sanjay Ram and Uday Pal accepted the High Court judgment. The other three convicts filed appeals.
Law Tiwari, in appeal, raised the plea of alibi. The burden was on Law Tiwari to establish the plea of alibi which he failed to discharge, the court observed. Pappu Tiwari contended that if reasonable doubt could be created in the story of the prosecution, the appellant must succeed. According to him, there was contradiction in the testimonies of the eye witnesses. On perusal of the evidence it cannot be said that there are any major discrepancies in the testimony of the eye witnesses as to throw doubt on the story of the prosecution, the bench observed.
Yet another contention was that the the FIR was ante-timed. "On the intimation of the incident, the fardbeyan was recorded expeditiously, inquest report prepared and the FIR was registered within 25 minutes of the same. The body was sent for post-mortem immediately and the FIR was sent to the court the next morning. We cannot say that there is any loophole which could have been utilised or that the FIR was ante timed and, thus, the objective of the requirement for sending the FIR to the Magistrate has been complied with. Thus, there is no merit in this plea", the court held.
The accused contended that there was a major discrepancy between the inquest report and the post-mortem report. "There is little doubt that there is not a minor but a major difference in recording the number of injuries suffered by the deceased in the inquest report and the post-mortem report. However, this will not be fatal in our view. We say so keeping in mind the purpose of an inquest report, which is not a substantive evidence. The objective is to find out whether a person who has died under suspicious circumstances, what may be the apparent cause of his death. In the present case the death was unnatural. There were wounds. There is no doubt that it is a homicide case. The expert is the doctor who carries out the post-mortem and has been medico legal expert. The two fire arm injuries have been clearly identified with the wounds at the entry and at the exit being identified. We have already discussed the proximity of the time period between the intimation and the police proceeding with it right up to the stage when the post-mortem commenced. We do not find any substance in this plea.", the court observed.
While dismissing his appeal, the bench observed thus:
"The remaining arguments of learned counsel for the appellant are based on plea of defective investigation, absence of independent witnesses but then there is no reason why the eye witnesses story, which is believable should not be given full credence. The test which is applied of proving the case beyond reasonable doubt does not mean that the endeavour should be to nick pick and somehow find some excuse to obtain acquittal."
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