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04. 1. This matter is taken up through hybrid mode.
2. Heard learned counsel for the petitioner and learned
counsel for the State.
3. The petitioner is an accused in C.T. Case No.536/66/04 of
2018-19, on the files of learned Additional Session Judge-Cum-
Special Judge POCSO Act, Bargarh, arising out of J.G.R.
No.536/66 of 2018, under Sections 450/307/302/34/120-B of IPC
and is in custody since 08.12.2018.
4. Being aggrieved by the rejection of her application for bail
U/s.439 Cr.P.C. by the learned Additional Session Judge-Cum-
Special Judge POCSO Act, Bargarh, by order dated 23.07.2019 in
the aforementioned case, the present BLAPL has been filed.
5. The petitioner is stated to be in custody since 08.12.2018.
By order dated 24.06.2021 this Court, taking note that the petitioner
is CCL had specifically directed for obtaining report regarding her
conduct and also for production of Case Diary. The matter suffered
another adjournment on 03.11.2021. Today when the matter is
called prayer is made on behalf of the State for adjournment to
produce the Case Diary.
6. On perusal of the records of the office of the Advocate
General, it is seen that by letter dated 24/28.06.2021 the IIC Bijepur
District Bargarh was informed to produce the up-to-date Case
7. Since the same was not responded to, another letter dated
06.11.2021 was addressed to Superintendent of Police Bargarh and
IIC Bijepur in the District Bargarh. But unfortunately, the case
diary is not made available to this Court.
8. As noted petitioner is in custody since 08.12.2018 and
cannot be allowed to suffer because of the apathy of investigating
9. Proceedings of the High Court cannot be held hostage to
the whims of the investigating agency and for their lackadaisical
attitude, rights of an accused cannot be marginalized, needs no
10. It is indeed disconcerting that the concerned District police
administration have scant regard for the orders passed by this Court
and have chosen to disregard repeated communication from the
office of the Advocate General for submission of Case Diary for
which the Case has to suffer adjournments.
11. It is fervently hoped that necessary corrective action shall
be taken so as to make the Police machinery more responsive to the
needs of administration of justice.
12. Considering the age of the petitioner and the period of
custody this Court is constrained not to grant any further
adjournment to the counsel for the State.
13. On a conspectus of the materials on record this Court
directs the petitioner to be released on bail on such terms to be fixed
by the learned Court in seisin over the matter
14. Registry is requested to send a copy of this order to
Principal Secretary Home Government of Odisha, Director General
of Police, Range DIG and the concerned Superintendent of Police.
15. Free copy of this order be made over to the learned
16. Accordingly, the BLAPL stand disposed of.
17. Urgent certified copy of this order be granted as per rules. | The Orissa High Court granted bail to a child in conflict with law on Thursday after she remained in custody for over 'three years'. A Single Judge Bench of Justice V. Narasingh came down heavily on the police for its apathetic approach and observed,
"Proceedings of the High Court cannot be held hostage to the whims of the investigating agency and for their lackadaisical attitude, rights of an accused cannot be marginalized, needs no emphasis." Factual Background:
The petitioner is an accused under Sections 450/307/302/34/120-B of IPC and was in custody since 08.12.2018. Being aggrieved by the rejection of her bail application on 23rd July 2019 by the Additional Session Judge-Cum-Special Judge POCSO Act, Bargarh, she filed the present bail application. By an order dated 24.06.2021, the High Court took note that the petitioner is a Child in Conflict with Law. Thereafter, it had specifically directed for obtaining report regarding her conduct and also for production of Case Diary. However, the matter suffered another adjournment on 03.11.2021. On 12th May 2022, when the matter was called for hearing, a prayer was made on behalf of the State for adjournment to produce the Case Diary. The Court perused the records available with the office of the Advocate General. Then, it came to light that by letter dated 24/28.06.2021 the IIC Bijepur District Bargarh was informed to produce the up-to-date Case Diary. Since the same was not responded to, another letter dated 06.11.2021 was addressed to Superintendent of Police Bargarh and IIC Bijepur in the District Bargarh. However, to the utter disappointment, the case diary was not made available to the Court. Court's Observations:
Having noted the aforesaid, the Court came down heavily on the police for its casual approach. It observed,
"It is indeed disconcerting that the concerned District police administration have scant regard for the orders passed by this Court and have chosen to disregard repeated communication from the office of the Advocate General for submission of Case Diary for which the Case has to suffer adjournments." The Court hoped that necessary corrective action shall be taken so as to make the Police machinery more responsive to the needs of administration of justice. Considering the age of the petitioner and the period of custody, the Court decided not to grant any further adjournment to the counsel for the State. After perusing the materials on record, it directed the petitioner to be released on bail on such terms to be fixed by the Court in seisin over the matter. Further, it requested the Registry to send a copy of the order to Principal Secretary, Home Department, Government of Odisha, Director General of Police, Range DIG and the concerned Superintendent of Police for their knowledge and necessary action. Case Title: Roshni Meher v. State of Odisha
Case No. : BLAPL No. 4649 of 2021
Order Dated: 12th May 2021
Coram: Justice V. Narasingh
Counsel for the Petitioner: Mr. D.P. |
ivil Appeal No. 1846 of 1974.
From the Judgment and Order dated 25.9.1972 of the Bombay High Court in Appeal No. 512 of 1965.
V.N. Ganpule and Mrs. Urmila Sirur for the Appellant.
V.A. Bobde, Uday U. Lalit and A.G. Ratnaparkhi for the Respondent.
The Judgment of the Court was delivered by SHARMA, J.
This appeal by the plaintiff appellant is directed against the decision of the Bombay High Court dismissing her suit for possession of the properties de tailed in the plaint.
The disputed properties belonged to a joint Hindu family governed by Mitakshara law of which one Bhiku and his son Balu were coparceners.
Bhiku died on June 6, 1942 leav ing behind his widow Parvati, the defendant No. 2 in the present suit and Balu who dies soon after his father 's demise on July 24, 1942.
In November 1942 Balu 's widow Lilabai gave birth to a posthumous daughter who is the present appellant.
Sometime later Lilabai remarried and thereupon Parvati 466 adopted Vithal, the first defendant in the present suit, in the year 1949.
After attaining majority, appellant Ashabai filed the present suit for a decree for possession of the properties with mesne profits and a decree for money for Rs.3,000 as expenses of her marriage.
She challenged the power of her grand mother to adopt the first defendant on the ground that her right to adopt was lost on the death of Balu leaving behind his widow Lilabai.
The trial court accepted the defence case, upheld the adoption of the defendant No. 1 as valid, and dismissed the suit.
The plaintiff, Ashabai, challenged the decision by an appeal which was heard by the Extra Assistant Judge, Poona, who allowed the same and passed a decree for possession of the suit properties along with mesne profits.
Now, it was the turn of the defendants to question the decree of the first appellate court before the High Court under section 100 of the Code of Civil Procedure.
After considering a number of Privy Council and Supreme Court decisions, the High Court ruled that a Hindu widow 's power to adopt is revived the moment there is nobody to continue the line, and since Lilabai incapacitated herself in doing so by her remarriage, the right of her mother in law to adopt a son to her husband revived.
The adoption of the first defendant was, thus, found legal and valid.
Accordingly the decree in favour of the plaintiff was set aside and her suit dismissed.
The appellant then moved this Court under Article 136 of the Constitution and special leave has been granted.
The case comes from Maharashtra where a Hindu widow may adopt even without any authority.
The contention of the plaintiff is that on the death of Balu his mother Parvati lost this power which vested in Balu 's widow Lilabai and on Lilabai 's remarriage Parvati 's power did not revive.
The adoption of defendant No. 1 was, therefore, illegal.
Reli ance was placed on several decisions of the Bombay High Court including that in Ram Chandra vs Murlidhar, In similar circumstances the Division Bench held that the mother 's power to adopt a son was permanently extinguished on the death of her natural son leaving a widow.
The High Court in the present case refused to follow the said decision on the ground that the same must be held to have been impliedly over ruled by the judgment of this Court in Gurunath vs Kamalabai, ; our view the High Court has not correctly appreciated the deci sion in Gurunath 's case.
The relevant facts in Gurunath vs Kamalabai, may be briefly put thus.
The disputed property belonged to Krishta rao who died leaving behind two widows Radhabai and Ganga bai and a son 467 Dattatraya.
Dattatraya died in 1913 leaving behind his widow Sundarabai and a son Jagannath.
Sundarabai died soon after the death of her husband and a year later Jagannath also died.
Gangabai, the junior widow of Krishtarao, adopted Gurunath, the appellant before this Court, who filed a suit claiming certain rights as the adopted son of Krishtarao.
One of the issues arising in the case related to the validi ty of Gurunath 's adoption.
A Bench of seven learned Judges of this Court examined several decisions of the Privy Coun cil including the judgment in Arnarendra Mansingh vs Sanatan Singh, [1933] L.R. 60 I.A. 242, and said that the rule, "That the interposition of a grand son, or the son 's widow, competent to continue the line by adoption brings the mother 's power of adoption to an end;" was being followed for a very long time and has become a part of Hindu law.
They also approved the observation of Chandavarkar, J., who delivered the judgment of the Full Bench of the Bombay High Court in Ramkrishna Ramchandra vs Shamrao, Bom.
526, to the following effect: "Where a Hindu dies leaving a widow and a son, and that son dies leaving a natural born or adopted son or leaving no son but his own widow to continue the line by means of adoption, the power of the former widow is extinguished and can never afterwards be revived.
" They also quoted with approval another part of the judgment of Chandavarkar, J., stating that when a son dies before attaining full legal competence and does not leave either a widow or a son or an adopted son then the power of the mother which was in abeyance during his lifetime revives but the moment he hands.
over that torch to another, the mother can no longer take it.
In view of these observations in the judgment in Gurunath 's case there does not appear to be any scope for holding that on the remarriage of the son 's widow the power of the son 's mother to adopt revives.
The matter does not stop here.
Reliance was placed by the appellant on the decision of the Nagpur High Court in Bapuji vs Gangaram, [1941] I.L.R. Nagpur 178, where the facts were identical to those in the present appeal.
The Nagpur High Court had held that the power of the mother revived on the remarriage of the son 's widow.
This Court discussed the Nagpur judgment at some length at pages 1148 and 1149 and disapproved it.
This part of the judgment does not leave any room for doubt that this Court in Gurunath 's case has affirmed the decisions of the Bombay High Court in Ramkrishna Ramchandra vs Shamrao, Bom.
526 468 and Ram Chandra vs Murlidhar, , as laying down the correct law and rejected the rule of law similar to the plea of the present respondent, recognised by Nagpur High Court in identical facts and circumstances.
We accordingly hold that on the death of Balu the responsibili ty for the continuance of the family line fell on his widow Lilabai by the power of adoption vesting in her, and the power of Parvati to adopt was extinguished permanently and did not revive even on Lilabai 's remarriage.
Consequently the adoption of first defendant was invalid in the eye of law and he did not get any interest in the suit properties.
Now remains the next question as to the relief which the plaintiff is entitled to get in this suit.
As has been observed earlier, the properties belonged to the joint family of which Bhiku was a coparcener.
On his death in 1942 his wife Parvati got under section 3(2) of the Hindu Women 's Rights to Property Act, 1937, the same interest as Bhiku had in the joint family properties.
If a partition had taken place Bhiku would have got half share in the properties, which on his death devolved on Parvati.
Parvati is still alive and is defending the claim of her grant daughter.
She cannot, therefore, be deprived of her half share in the properties.
The interest which initially devolved on Para vati, however, was the limited in nature known as Hindu Woman 's estate.
On the passing of the , she became full owner thereof.
Likewise the remaining half share of Balu in the properties, devolved on the appel lant on her mother 's remarriage and she got a Hindu Woman 's estate therein which ripened in full ownership under section 14(1) of the .
She is thus entitled to a decree for half share in the suit properties, as prayed for by way of an alternative relief in the plaint.
She has also asked for a decree for partition in case of a partial decree which she is entitled to get.
The first appellate court had also granted a decree for mesne profits, pendente lite and future, which should be restored but only in respect of her half share.
Accordingly, an inquiry shall be made under Order XX, Rule 12, CPC.
Her claim for a money decree for Rs.3,000 was not allowed even by the first appellate court and stands finally rejected.
In the result, the decision of the High Court is set aside and the plaintiff 's suit for half share in the suit properties with mesne profits as also for portion is de creed.
The appeal is accordingly allowed in part, but the parties are directed to bear their own costs throughout.
R.N.J. Appeal allowed. | The disputed property belonged to a joint Hindu family, governed by Mitakshra law of which one Bhiku and his son were coparceners.
Bhiku died leaving behind Parvati his widow and a son, Balu.
Soon after, Balu too died, leaving behind his widow Lilabai who gave birth to a posthumous daughter, the present appellant.
Sometime later Lilabai remarried.
Thereupon Parvati, Bhiku 's surviving wife adopted Vithal, the present respondent in this appeal.
The appel lant, Ashabai on attaining majority filed the present suit for a decree for possession of properties with mesne profits and a decree for money and challenged the power of her grand mother to adopt.
The trial court upheld the adoption of the defendant as valid and dismissed the suit.
The plaintiff Ashabai chal lenged the decision by an appeal.
The Appellate court al lowed the appeal and passed a decree in her favour granting the reliefs claimed.
Thereupon the defendants challenged the decree of the first appellate court in the High Court.
The High Court ruled that a Hindu widow 's power to adopt is revived the moment there is nobody to continue the line, and thus the adoption of the respondent was found legal and valid and the decree in favour of the plaintiff appellant was set aside and her suit dismissed.
Hence this appeal by special leave by the plaintiff.
Allowing the appeal in part by decreeing the suit for half share in the suit properties with mesne profits this Court, HELD: There does not appear to by any scope for holding that on the remarriage of the son 's widow the power of son 's mother to adopt revives.
[467F] In the instant case, on the death of Balu, the responsi bility for the continuance of the family line fell on his widow Lilabai by the power of adoption vesting in her and the power of Parvati to adopt was extin 465 guished permanently and is not revived even on Lilabai 's remarriage.
Consequently the adoption of the first defendant was invalid in the eye of law and he did not get any inter est in the suit properties.
[468B] The properties belonged to the joint family of which Bhiku was a coparcener.
On his death in 1942 his wife Par vati got under section 3(2) of the Hindu Women 's Rights to Property Act, 1937, the same interest as Bhiku had in the joint family properties.
[468C] The interest which initially devolved on Parvati, howev er, was limited in nature known as the Hindu Women 's estate.
On passing of the Hindu Succession Act, 1957 she became full owner thereof.
[468D] Ram Chandra vs Murlidhar, ; Gurunath vs Kamlabai, ; ; Amrendra Mansingh vs Sanatan Singh, [1933] L.R. 60 I.A. 242; Ramkrishna Ram chandra vs Shamrao, Bom.
526 and Bapuji vs Gangaram, [1941] I.L.R. Nagpur 178, referred to. |
1. This appeal is directed against the judgment dated 13th July,
2006 passed by the learned Sessions Judge, Keonjhar convicting
the Appellant for the offence punishable under Section 302 IPC
and sentencing him to undergo imprisonment for life in ST Case
No.18 of 2004.
2. By an order dated 19th October 2012, this Court enlarged the
Appellant on bail.
3. This Court has heard the submissions of Mr. R. N. Parija,
learned counsel appointed by the High Court Legal Services
JCRLA 96 of 2006 Page 1 of 4
Committee to appear for the Appellant and Mr. A. P. Das, learned
Additional Standing Counsel for the State-Respondent.
4. The case of the prosecution is that the mother of the accused
had left the house after quarrelling with his father. The accused
was said to have been upset and threatened his father. The
deceased, who happened to be the elder cousin brother of the
accused, protested this act of the accused. A quarrel ensued
between them. However, at that point in time, the dispute
subsided and, in the evening, both the accused and the deceased
took their meals in the house of the accused. The deceased slept in
the verandah.
5. At around 11.30 PM, on hearing the shout of the deceased, the
Informant-Nakula Behera (P.W.1), the father of the deceased and
the uncle of the accused woke up and saw the accused standing
with a Bala and his son, the deceased, lying with head injuries.
P.W.1 chased the accused, who ran away throwing the Bala at the
spot.
6. P.W.1 lodged the report at the Bamebari Outpost. Mr. Pradeep
Kumar Baral (P.W.8) was the Investigating Officer (IO), who on
14th June, 2003 at around 7 AM took down the complaint in
writing, registered the case and took up investigation. On 15 th
June 2003, he seized the wearing apparels of the deceased and on
the same day at 10.30 AM arrested the accused and seized the
wearing apparels of the accused. Meanwhile, the dead body of the
deceased was sent for Post-Mortem (PM). The charge was laid
against the accused for the offence under Section 302 IPC. He
pleaded not guilty and claimed trial.
7. Eight witnesses were examined for the prosecution and none
for the defence.
8. P.W.1, the informant, spoke clearly and cogently about he
having witnessed the incident. In his cross-examination, he made
clear that a ‘Dibiri’ was burning in the room and he was clearly
able to recognize the accused. He also mentioned how his wife
and his daughter, Bilasini (P.W.3) also woke up and saw the
accused run away. He said “to my knowledge, there was no
enmity between the accused and the deceased.” Barring the above
sentence, nothing else emerged in the cross-examination of this
witness to doubt the veracity of his testimony.
9. It is sought to be argued that the above sentence in the cross-
examination shows there was no motive for the crime. However,
P.W.3 said that “at evening, the accused being drunk came to our
house and there was exchange of words between my brother and
accused. Being asked by us, the accused went away to his house.”
Clearly therefore, there was a quarrel between the deceased and
the accused in the evening whereas the murder took place in the
night while the deceased was sleeping. Although P.W.3 said in the
cross-examination “there was no quarrel between the accused and
deceased prior to this incident”, what she was referring to were
incidents prior to the quarrel that took place between the accused
and the deceased. The evidence of P.W.4, who was another uncle
of the accused and the deceased, is not very helpful to either side
although he says accused and the deceased were in good terms.
The seizure witnesses have also supported the case of the
JCRLA 96 of 2006 Page 3 of 4
prosecution. Blood stains were detected on the Bala but the blood
grouping and the origine could not be detected.
10. This is not a case of mistaken identity since all the witnesses
are close relations of both the accused and the deceased. The fact
that the accused hits the deceased with Bala on the head clearly
reveals his intention to cause the death of the deceased. This was
not on the spur of the moment. The quarrel happened in the
evening whereas the incident happened in the night when the
deceased was sleeping and wholly unarmed. There was no need
for the close relations of the accused to falsely implicate him in
the homicidal death of the deceased.
11. The evidence being clear and cogent, the Court finds no
reason to interfere with the well-reasoned judgment of the trial
Court. There is no merit in this appeal and it is dismissed as such.
12. The bail bond of the Appellant is cancelled and he is directed
to surrender forthwith and in any event, not later than 1 st June,
2022 failing which the IIC concerned Police Station will take
steps to have him apprehended in order to serve out the remainder
of the sentence. | The Orissa High Court has upheld the conviction of a person, who was sentenced to life for committing murder of his cousin-brother. While dismissing the appeal, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik observed,
"This is not a case of mistaken identity since all the witnesses are close relations of both the accused and the deceased. The fact that the accused hits the deceased with Bala on the head clearly reveals his intention to cause the death of the deceased. This was not on the spur of the moment. The quarrel happened in the evening whereas the incident happened in the night when the deceased was sleeping and wholly unarmed. There was no need for the close relations of the accused to falsely implicate him in the homicidal death of the deceased." Factual Background:
As per the prosecution, the mother of the accused had left the house after quarrelling with his father. The accused was said to have been upset with this and threatened his father. The deceased, who happened to be the elder cousin brother of the accused, protested this act of the accused. A quarrel ensued between them. However, at that point in time, the dispute subsided and, in the evening, both the accused and the deceased took their meals in the house of the accused. The deceased slept in the verandah. At around 11.30 PM, on hearing the shout of the deceased, the Informant (P.W. 1), the father of the deceased and the uncle of the accused woke up and saw the accused standing with a Bala and his son, the deceased, lying with head injuries. P.W.1 chased the accused, who ran away throwing the Bala at the spot. The P.W. 1 lodged the report at the Bamebari Outpost. Mr. Pradeep Kumar Baral (P.W.8) was the Investigating Officer (IO), who on 14th June, 2003 at around 7 AM took down the complaint in writing, registered the case and took up investigation. On 15th June 2003, he seized the wearing apparels of the deceased and on the same day at 10.30 AM arrested the accused and seized the wearing apparels of the accused. The charge was laid against the accused for the offence under Section 302 IPC. He pleaded not guilty and claimed trial. P.W.1, spoke clearly about he having witnessed the incident. In his cross-examination, he made clear that a 'Dibiri' (a small kerosene lamp) was burning in the room and he was clearly able to recognize the accused. He also mentioned how his wife and his daughter (P.W.3) also woke up and saw the accused run away. He said "to my knowledge, there was no enmity between the accused and the deceased." Except the above sentence, nothing else emerged in the cross-examination of the informant to doubt the veracity of his testimony. It was argued that the above sentence in the cross-examination shows there was no motive for the crime. However, P.W. 3 said that "at evening, the accused being drunk came to our house and there was exchange of words between my brother and accused. Being asked by us, the accused went away to his house." Blood stains were detected on the Bala but the blood grouping and the origine could not be detected. On the basis of these evidence, the Sessions Judge, Keonjhar convicted the accused (appellant herein) for the offence punishable under Section 302, IPC and sentenced him to undergo imprisonment for lie. This appeal was filed against the said judgment dated 13th July, 2006. Court's Observations:
The Court observed that clearly there was a quarrel between the deceased and the accused in the evening whereas the murder took place in the night while the deceased was sleeping. Although P.W. 3 said in the cross-examination "there was no quarrel between the accused and deceased prior to this incident", what she was referring to, it held, were incidents prior to the quarrel that took place between the accused and the deceased. The Court further held that the instant case is not a matter of mistaken identity since all the witnesses are close relations of both the accused and the deceased. Again, the fact that the accused hits the deceased with Bala on the head clearly reveals his intention to cause the death of the deceased. Therefore, this was clearly not on the spur of the moment. The quarrel happened in the evening whereas the unfortunate incident happened in the night when the deceased was sleeping and wholly unarmed. Accordingly, the Court held that there was no need for the close relations of the accused to falsely implicate him in the murder of the deceased. It found the evidence clear and cogent and hence, the Court found no reason to interfere with the trial court's judgment. Consequently, the appeal was dismissed. Case Title: Baisakhu Sethy @ Behera v. State of Odisha
Case No. |
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
S.B. Criminal Misc(Pet.) No. 2516/2022
Aman Chopra S/o Shri Virendra Chopra, Aged About 36 Years, R/
o I-1901, Arihant Arden, Sector - 1, Greater Noida West,
Gautam Buddh Nagar, Uttar Pradesh.
----Petitioner
1. State Of Rajasthan, Through Pp
2. Krishnaraj Singh S/o Shri Indrajeet Singh Chouhan, R/o
Bichiwada, Police Station Bichiwada, Dungarpur,
Rajasthan.
For Petitioner(s) : Mr. Sidharth Luthra, Sr. Advocate
assisted by Mr. Mrinal Bharti and
Mr. Achintya Kaushik
Mr. Manoj Bhandari, Sr. Advocate
assisted by Mr. Nishank Madhan and
Mr. Aniket Tater
For Respondent(s) : Mr. Vinit Jain, Special P. P. assisted by
Mr. Pravin Vyas
1. Learned Senior Counsel Mr. Luthra and Mr. Bhandari, inform
the Court that Hon’ble the Supreme Court, while hearing the
matters relating to ‘sedition’ in S. G. Vombatkere Vs. Union of
Indian (WPC No.682/2021) along with Editors Guild of India
& Anr. Vs. Union of India & Ors. (WPC No.552/2021) has
passed an interim order directing the Centre/State Government to
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(2 of 2) [CRLMP-2516/2022]
refrain from registering any FIRs under Section 124-A of Indian
Penal Code and keep all pending matters in abeyance during the
period that Section 124-A of IPC is being reconsidered.
2. This Court has viewed the contentious debate recorded on a
C.D. provided by the petitioner.
3. Having heard learned counsel for the parties at some length
and considering the submissions made on facts so also on law,
this Court is of the view that the investigation, including
petitioner’s interrogation, is necessary before reaching any
concrete conclusion regarding commission of offences alleged
against the petitioner.
4. The petitioner is, therefore, directed to appear before the
on 16.05.2022 at 11.00 a.m.
5. The Investigating Officer shall carry out the
investigation/interrogation by 5.00 p.m., whereafter the State
would be free to pray for further opportunity for investigation (if
required) on the next date of hearing, which is being fixed as
20.05.2022. He shall, however, not investigate the matter for
allegations covered by Section 124-A of the Indian Penal Code.
6. Till then, the petitioner shall not be arrested in relation to
present FIR No.0147/2022 registered at Police Station Bichhiwada,
District Dungarpur or in relation to any other FIR filed or likely to
be filed concerning the programme ‘Desh Nahi Jhukne Denge’
aired at 8.00 p.m. on 22.04.2022.
7. List the matter on 20.05.2022.
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Powered by TCPDF (www.tcpdf.org) | The Rajasthan High Court (Jodhpur Bench) has directed the state police to not investigate allegations leveled against News 18 Journalist Aman Chopra of committing offence punishable under Section 124-A of the Indian Penal Code (sedition)
This relief for Chopra has come in an FIR registered against him for airing a discussion show named as "Desh Jhukne Nahi Denge" and subsequently posting it on his Twitter account, which allegedly resulted in communal disharmony and communal riots on 22.04.2022 at Alwar. Importantly, the Bench of Justice Dinesh Mehta has issued this direction in the light of today's order of the Supreme Court wherein 152-year-old sedition law [under Section 124A of the Indian Penal Code] has been kept in abeyance till the Union Government reconsiders the provision. Chopra's Counsels informed the bench about the Supreme Court's order. For the act of airing and posting his show on Twitter, three FIRs were registered. First FIR was registered with Police Station Bichwada Dungarpur vide FIR No. 147/2022 (the instant matter) on 23.04.2022 and second FIR was registered with Police Station Sadar, Bundi vide FIR No. 200/2022 on 23.04.2022 itself and the third FIR was instituted with Police Station Kotwali, Alwar vide FIR No. 372/2022 on 24.04.2022. He has been booked under Sections 124-A (sedition), 295-A (acts intended to outrage religious feelings), and 153-A (promoting enmity between different groups) of the Indian Penal Code. In the subsequent two FIRs [FIR No. 200/2022 and FIR No. 372/2022], he was granted relief on May 7, as the Court ordered an order granting interim protection from arrest. Now, regarding the very first FIR, for which the instant plea had been filed, the Court observed that investigation, including the petitioner's interrogation, is necessary before reaching any concrete conclusion regarding the commission of offences alleged against the petitioner. The petitioner was, therefore, directed to appear before the Investigating Officer, Police Station Bichhiwada, District Dungarpur on 16.05.2022 at 11.00 a.m. The Investigating Officer has been directed to carry out the investigation/interrogation by 5.00 p.m., whereafter, the Court added, the State would be free to pray for the further opportunity for investigation (if required) on the next date of hearing [May 20, 2022]. Till then, the Court has directed that Chopra shall not be arrested in relation to instant FIR or in relation to any other FIR filed or likely to be filed concerning the program 'Desh Nahi Jhukne Denge' aired at 8.00 p.m. on 22.04.2022. |
Petitioner has raised an issue of the State Police authorities not
following the mandate of Section 173 (2) (ii) of Cr.P.C. in large number of
cases. The petitioner has raised an issue in public interest exhibiting no
personal interest in the same.
Section 173 of Cr.P.C., pertains to report of police officer on
completion of investigation. Sub-Section (1) of Section 173 provides that
every investigation under the Chapter XII shall be completed without
unnecessary delay. Clause (i) of sub-Section (2) of Section 173 provides
that as soon as it is completed, the officer-in-charge of the police station
shall forward to a Magistrate empowered to take cognizance of the offence
on a police report, a report in the form prescribed by the State Government
stating various details as provided in sub-clauses (a) to (h) of the said
clause. Clause (ii) of sub-Section (2) further provides that the officer shall
also communicate, in such manner as may be prescribed by the State
Government, the action taken by him to the person, if any, by whom the
information relating to the commission of the offence was first given.
In plain terms thus as per Section 173 (2) (ii) upon completion of
investigation, the officer concerned would communicate the action taken
by him to the first informant. The grievance of the petitioner is that this
requirement is breached in numerous cases in the State. He has cited
several instances where despite completion of investigation the first
informant was completely in dark about the developments.
The State Government has filed a detailed affidavit opposing the
factual assertions of the petitioner, primarily contending that in all cases,
the requirement of Section 173 (2) (ii) are followed. District wise
declarations are made in this respect. The petitioner has thereafter filed a
rejoinder affidavit dated 22nd February, 2021 once again stating as under:
“3. That, I vehemently oppose Para-4, 5 & 6 of the Counter
Affidavit of the respondents and differ from the same in toto. In
the said paras it is contended that all the Police Stations are
informing the results of the registered cases, whether they ended
in Charge-sheet or final report to the complainant/informant,
once the investigation gets over, which is out and out false and
baseless and to prove the same I have annexed few affidavits of
individuals, who on oath have stated that the police did not
comply with Section 173(2)(ii) of Cr.P.C.
The Affidavits of individuals, along with related
documents are annexed herewith and marked as Annexure-1.
4. That, it is pertinent to mention here that under my instruction
my Junior Mr. Saikat Rahman made an RTI Application dated:
28.11.2019 asking for information regarding the prescribed form
of submission of investigation report U/S 173(2) Cr.P.C of State
Government of Tripura, before the Home Department, Govt. of
Tripura. After about a month when he went to the office to
gather information regarding the said RTI Application, then he
was handed over a Copy of letter whereby, the Under Secretary
& SPIO, Govt. of Tripura had requested the SPIO, DGP Office
to provide the applicant with the required information but till
date the SPIO, Office of the DGP is completely silent regarding
the said query.
A copy of the money receipt of RTI Application, receipt
copy of the RTI Application and letter handed over to the
applicant by the Home Department are annexed herewith and
marked as Annexure-2.”
Along with this affidavit, the petitioner has annexed affidavits of
several complainants, who had filed first information before the concerned
police station and who have not been communicated the result of the
completion of the investigation. Counsel for the petitioner pointed out that
all these instances pertained to West Tripura District. He, therefore,
submitted that even in the urban centers of the State, the requirements of
Section 173 (2) (ii) of Cr.P.C. are not followed. The situation in the rural
centers would be much worse.
The State has not filed reply to the said rejoinder affidavit of the
petitioner, nor controverted the contents of several affidavits annexed to
the said rejoinder. We have no basis to discard the instances cited by the
petitioner where the requirements of Section 173 (2) (ii) of Cr.P. C. may
not have been strictly followed. The said provision is meant to convey to
the first informant, the result of the completion of the investigation and in a
given case, if he wants to contest the police report. When the first
informant, who in large number of cases may be the victim or the heir of
the victim is not conveyed the result of the completion of the police
investigation, the same would undoubtedly breach the requirements of
Section 173 (2) (ii) of Cr.P.C.
The respondents shall therefore ensure that the said requirements of
Section 173 (2) (ii) of Cr.P.C. are scrupulously followed in all cases. The
Home Department shall issue a proper circular addressed to all police
stations requiring the Officer-in-Charge of the police station and the
Investigating Officer to comply with the requirements of Section 173 (2)
(ii) of Cr.P.C. in all cases.
Petition disposed of accordingly. Pending application(s), if any, also
stands disposed of. | The Tripura High Court on Monday (01st February) directed the State Government to ensure that the requirements of Section 173 (2) (ii) of Cr.P.C. are 'scrupulously followed' in all cases. The Bench of Chief Justice Akil Kureshi and Justice S. G. Chattopadhyay specifically directed the Home Department of the State Government to issue a proper circular addressed to all police...
The Tripura High Court on Monday (01st February) directed the State Government to ensure that the requirements of Section 173 (2) (ii) of Cr.P.C. are 'scrupulously followed' in all cases.
The Bench of Chief Justice Akil Kureshi and Justice S. G. Chattopadhyay specifically directed the Home Department of the State Government to issue a proper circular addressed to all police stations requiring the Officer-in-Charge of the police station and the Investigating Officer to comply with the requirements of Section 173 (2) (ii) of Cr.P.C. in all cases.
Plea before the Court
The Court was hearing a plea filed by one Sri Bhaskar Deb raising an issue that the State Police authorities are not following the mandate of Section 173 (2) (ii) of Cr.P.C. in a large number of cases.
It may be noted that the said provision [Section 173 (2) (ii) of Cr.P.C.] makes it mandatory for the officer-in-charge of the police station to communicate the action taken by him to the first informant upon the completion of the investigation.
This Section reads as under,
"(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given."
In this backdrop, the grievance of the petitioner was that the requirement of this Provision was being breached in numerous cases in the State.
He also cited several instances where despite completion of investigation the first informant was completely in dark about the developments.
The petitioner also annexed affidavits of several complainants, who had filed first information before the concerned police station and they were not communicated the result of the completion of the investigation.
The Counsel for the petitioner pointed out that all the instances pertained to West Tripura District.
He, therefore, submitted that if in the urban centers of the State, the requirements of Section 173 (2) (ii) of Cr.P.C. were not being fulfilled then the situation in the rural centers would be much worse.
Court's observations
Taking into account the response filed by the State of Tripura, wherein the issues raised by the Petiitoner were not denied or disputed, the Court said,
"We have no basis to discard the instances cited by the petitioner where the requirements of Section 173 (2) (ii) of Cr.P. C. may not have been strictly followed."
The Court further noted,
"The said provision is meant to convey to the first informant, the result of the completion of the investigation and in a given case, if he wants to contest the police report. When the first informant, who in large number of cases may be the victim or the heir of the victim is not conveyed the result of the completion of the police investigation, the same would undoubtedly breach the requirements of Section 173 (2) (ii) of Cr.P.C."
Thus, the respondents were therefore directed to ensure that the said requirements of Section 173 (2) (ii) of Cr.P.C. are scrupulously followed in all cases and proper directions be issued in this regard.
Case title - Sri Bhaskar Deb v. The State of Tripura and another [W.P. (C) (PIL) No.07/2020]
Read Order |
At the outset, be it noted, it is settled law that “a jurisdiction can
neither be waived nor created even by consent and even by submitting to
jurisdiction, an Assessee cannot confer upon any jurisdictional authority,
something which he lacked inherently”. The said ratio squarely applies to the
case on hand.
2. The appellant is an assessee on the file of the second respondent. For
the assessment year 2011-2012, she filed her return of income on 19.04.2012
admitting an income of Rs.11,60,000/-, which was processed by the Assessing
Officer under Section 143 (1) of the Income Tax Act, 1961 (in short, “the
Act”). While so, after a period of five years, she received a notice dated
28.03.2018 issued by the first respondent under Section 148 of the Act
purportedly to re-assess the income of return submitted by her for the
assessment year 2011-2012. In response, she submitted a reply dated
26.04.2018 stating that the first respondent has no jurisdiction to issue such a
notice under Section 148 of the Act and therefore, she requested to drop the
reassessment proceedings. Subsequently, the first respondent transferred the
files pertaining to the appellant to the second respondent. Thereafter, the
second respondent continued the reassessment proceedings by issuing a notice
dated 14.12.2018 under section 143(2) r/w 129 of the Act, directing the
appellant to appear and file return of income to the notice under section 148 of
the Act along with supportive documents. Aggrieved over the same, the
appellant preferred WP.No.34136 of 2018 to quash both the notices dated
28.03.2018 and 14.12.2018 issued by the respective respondents 1 and 2.
3. It was contended by the respondents before the writ court that the
appellant had received a sum of Rs.53,50,000/- towards her share in respect of
the property at Mumbai, from a developer within the jurisdiction of the first
respondent and therefore, notice dated 28.03.2018 under section 148 of the
Act was issued by the first respondent. When the appellant raised an issue of
jurisdiction, the entire materials collected by the first respondent were sent to
the second respondent for continuing the reassessment proceedings.
Accordingly, the second respondent seized of the reassessment proceedings
within whose jurisdiction the appellant resides. According to the respondents,
in the original assessment proceedings for the assessment year 2011-2012, it
was not known as to whether the appellant had disclosed the said sum of
Rs.53,50,000/- received by her towards transfer of FSI rights in respect of the
property situated at Mumbai and therefore, she was directed to appear before
the second respondent and explain the same. In any event, there is tangible
material evidence available to initiate reassessment proceedings against the
appellant.
4. Upon hearing both sides, the learned Judge, having observed that the
notice initially issued by the first respondent against the appellant though
improper, need not be set aside, in view of the fact that the said proceedings
were subsequently transferred to the Income Tax Authorities at Chennai; the
commencement of the proceedings by issuing notice dated 14.12.2018 is in no
way prejudiced the appellant; and she is at liberty to file her objections and
avail an opportunity of hearing to be provided under the IT Act, dismissed the
said writ petition, by the order impugned herein. Therefore, the appellant / writ
petitioner is before this court with this appeal.
5.1. The learned counsel for the appellant would contend that the first
respondent lacks jurisdiction to initiate the reassessment proceedings by
issuing the notice dated 28.03.2018 knowing fully well that the appellant is not
residing within the jurisdiction of the first respondent. Further, after a period of
five years from the completion of the original assessment for the assessment
year 2011-2012, the reassessment proceedings were initiated, alleging that
some of the income was not disclosed by the appellant truly and fully.
However, the fact remains that there was no income omitted to be included by
the appellant for assessment during the assessment year in question. Therefore,
the reassessment proceedings ought not to have been initiated by the first
respondent against the appellant.
5.2. Adding further, the learned counsel for the appellant contended that
when the reassessment proceedings initiated by the first respondent itself is
invalid, the second respondent without issuing notice afresh under section 148
of the Act, cannot be permitted to continue the further proceedings by issuing
notice dated 14.12.2018 invoking Section 129 of the Act. According to the
learned counsel, even assuming that the reassessment proceedings are valid, as
per Section 149 (b) of the Act, the second respondent cannot issue a notice
under Section 148 of the Act beyond the period of six years from the end of the
relevant assessment year. It is also submitted that the limitation period for
initiation of reassessment proceedings for the assessment year 2011-12 came to
an end on 31.03.2018; the second respondent, who is the jurisdictional
assessing officer, did not issue any notice under Section 148 of the Act, before
31.03.2018 to reopen the return of income declared by the appellant; and
therefore, the second respondent cannot ride upon the borrowed satisfaction of
the first respondent to continue with the reassessment proceedings without
issuance of notice under section 148 of the Act within the prescribed time
frame, which vitiate the entire reassessment proceedings. However, the learned
Judge erred in observing that there is no irregularity or infirmity in initiating
the reassessment proceedings by the first respondent by issuing notice dated
28.03.2018 and transmitting the files to the second respondent, who in turn,
issued notice dated 14.12.2018 for continuation of the reassessment
proceedings; and dismissing the writ petition, by the order impugned herein.
5.3. The learned counsel placed reliance on the decisions of various High
Court and the Hon'ble Supreme Court and ultimately, submitted that when
once the initiation of the reassessment proceedings is without jurisdiction and
held to be invalid, the other consequential proceedings must also necessarily
held to be invalid; and therefore, the writ appeal will have to be allowed, by
setting aside the order impugned herein and the notices impugned in the writ
petition.
6. Opposing this appeal, the learned Senior Panel Counsel appearing for
the respondents would contend that the reassessment proceedings were
initiated by issuing notice under section 148 of the Act by the first respondent
inasmuch as the particulars relating to the PAN number of the appellant were
not available and the details about the developer, who had made payment to
the appellant, were not furnished. However, when the issue of jurisdiction was
raised by the appellant, the first respondent transferred the entire files relating
to the reassessment proceedings of the appellant to the second respondent. The
appellant, without filing her return of income to the notice under section 148 of
the Act for the relevant assessment year to the second respondent, approached
this Court invoking Article 226 of the Constitution of India. Even in the writ
proceedings, the appellant did not state anything about the amount received by
her. Therefore, the learned Judge justified the notices issued by the respondents
and rightly dismissed the writ petition, granting liberty to the appellant to
submit her objections to the notice dated 14.12.2018 issued by the second
respondent and also avail an opportunity of personal hearing to be provided.
Thus, according to the learned counsel, the order of the learned Judge does not
require any interference at the hands of this court.
7. Heard both sides and perused the materials available on record.
8. The subject matter of challenge before the writ court was the notice
dated 28.03.2018 issued by the first respondent under section 148 of the Act
and the consequential notice dated 14.12.2018 issued by the second
respondent under section 143(2) r/w 129 of the Act, for the assessment year
2011-12. The learned Judge decided the same against the appellant / writ
petitioner.
9. In this writ appeal, the learned counsel for the appellant made
elaborate contentions both on legal and factual aspects. Firstly, in law, it is
submitted that the first respondent lacks jurisdiction to issue reassessment
notice under section 148 of the Act; when the same was pointed out by the
appellant, the first respondent transferred the entire files to the jurisdictional
assessing officer / second respondent, who inturn, continued the reassessment
proceedings by issuing notice under section 143(2) r/w 129 of the Act, without
issuing any fresh notice under section 148 of the Act; and hence, the notices so
issued by the respective respondents are invalid and the same vitiate the
reassessment proceedings. Secondly, on facts, it is contended that the appellant
disclosed fully and truly all the material facts necessary for her assessment for
the relevant assessment year and there was no income omitted to be included
by way of reassessment proceedings. However, the learned Judge failed to
appreciate the same in a proper perspective and erred in dismissing the writ
petition filed by the appellant herein.
10. On the other hand, the learned senior panel counsel appearing for
the respondents reiterating the averments made in the counter affidavit,
justified the reassessment proceedings initiated by the respondents against the
appellant, as affirmed by the learned Judge in the writ petition.
11. Before proceeding further, it is but relevant to refer to the provisions
of law, based on which the notices impugned in the writ petition were issued
by the respondent authorities, viz., section 148 and 129 of the Act, as follows:
“Issue of notice where income has escaped assessment
148.(1)Before making the assessment, reassessment or
recomputation under section 147, the Assessing Officer shall serve on the
assessee a notice requiring him to furnish within such period as may be
specified in the notice, a return of his income or the income of any other
person in respect of which he is assessable under this Act during the
previous year corresponding to the relevant assessment year, in the
prescribed form and verified in the prescribed manner and setting forth
such other particulars as may be prescribed; and the provisions of this Act
shall, so far as may be, apply accordingly as if such return were a return
required to be furnished under section 139:
(a)Where a return has been furnished during the period
commencing on the 1st day of October, 1991 and ending on the 30th day of
September, 2005 in response to a notice served under this section, and
(b)Subsequently a notice has been served under sub-section (2) of
section 143 after the expiry of twelve months specified in the proviso to
sub-section (2) of section 143, as it stood immediately before the
amendment of said sub-section by the Finance Act, 2002 (20 of 2002) but
before the expiry of the time limit for making the assessment, re-
assessment or recomputation as specified in sub-section (2) of section 153,
every such notice referred to in this clause shall be deemed to be a valid
Provided further that in a case -
https://www.mhc.tn.gov.in/judis (a)Where a return has been furnished during the period
commencing on the 1st day of October, 1991 and ending on the 30th day of
September, 2005, in response to a notice served under this section, and
(b)subsequently a notice has been served under clause (ii) of sub
section (2) of section 143 after the expiry of twelve months specified in the
proviso to clause (ii) of sub-section (2) of section 143, but before the
expiry of the time limit for making the assessment, reassessment or
recomputation as specified in sub-section (2) of section 153, every such
notice referred to in this clause shall be deemed to be a valid notice.]
[Explanation.- For the removal of doubts, it is hereby declared that
nothing contained in the first proviso or the second proviso shall apply to
any return which has been furnished on or after the 1 st day of October,
2005 in response to a notice served under this section.]
(2)The Assessing Officer shall, before issuing any notice under this
section, record his reasons for doing so.”
129.Whenever in respect of any proceeding under this Act an income-tax
authority ceases to exercise jurisdiction and is succeeded by another who
has and exercises jurisdiction, the income-tax authority so succeeding
may continue the proceeding from the stage at which the proceeding was
left by his predecessor:
Provided that the assessee concerned my demand that before the
proceeding is so continued the previous proceeding or any part thereof be
reopened or that before any order of assessment is passed against him, he
be reheard.”
On a plain reading of the aforesaid provisions, it is apparent that section 148
provides for issuance of notice where income has escaped assessment and the
assessing officer intends to make assessment, reassessment or recomputation
under section 147. Under sub-section (1) to section 148, the assessing officer
shall issue notice to the assessee requiring him/her to furnish a return of
income in respect of which he/she is assessable for the relevant assessment
year; and under sub-section (2) to section 148, the assessing officer shall
before issuing any notice under this section, record his reasons for doing so. It
is also crystal clear from the provisions of section 129 of the Act that the same
is applicable, when there is a change of incumbent without any change of
jurisdiction and one Assessing Officer is succeeded by another in the same
office.
12. In the instant case, it could be seen that the assessment of the
appellant was reopened upon receipt of credible information from the
Directorate of Income Tax (I & CI), Mumbai, to the effect that she received a
sum of Rs.53,50,000/- for transfer of her FSI right in the property at Mumbai.
Pursuant to the same, the first respondent issued notice dated 28.03.2018
under section 148 of the Act stating that he has reasons to believe that the
income of the appellant chargeable to tax for the assessment year 2011-12 has
escaped assessment within the meaning of section 147 of the Act; and
therefore, he proposed to assess/re-assess the income for the said assessment
year and he directed the appellant to file her return of income in the prescribed
form within 30 days from the service of notice. Upon receipt of the said notice,
the appellant in her reply dated 26.04.2018, pointed out that she is a
permanent resident of Chennai and her PAN is AAKPK7417K and an assessee
on the file of the second respondent; and she therefore, requested the first
respondent to drop the proposal. Consequently, the files pertaining to the
reassessment of the appellant were transmitted to the second respondent.
Thereafter, without issuing any fresh notice under section 148 of the Act, the
second respondent / jurisdictional assessing officer continued the reassessment
proceedings initiated by the first respondent, who lacks jurisdiction to issue
notice under section 148 of the Act, and sent a notice dated 14.12.2018 under
section 143(2) r/w section 129 of the Act to the appellant, calling upon her to
appear either in person or through an authorised representative and produce
the documents in support of the return of income filed by her. Thus, both the
notices issued by the respondents 1 and 2 respectively were challenged by the
appellant.
13. Reference was made by the learned counsel for the appellant to the
(i)Shibani Dutta v. Commissioner of Income-tax [(2012) 26 taxmann.com
105 (Delhi), in which, it was held as under:
“10....The period of limitation gets extended under clause (iii) of
Explanation I only by the time taken to reopen the whole or any part of the
proceeding or giving an opportunity to the assessee (to be reheard) under
the proviso to Section 129. If we turn to section 129 of the Act we find that
it provides for the procedure to be followed when there is a “change of
incumbent of an office”. ...
11.We do not see how this provision helps the Revenue. It is
applicable when in the same jurisdiction, there is a change of incumbent
and one Assessing Officer is succeeded by another. In such a case, the
main Section provides that the successor – officer is entitled to continue
the proceeding from the stage at which it was left by his predecessor
subject to the caveat, expressed in the proviso, that if the assessee demands
that before the proceeding is continued the previous proceedings or any
part thereof shall be reopened or that before any assessment order is
passed against him, he shall be reheard, such a demand has to be
accepted. If as a result of accepting the assessee's demand under the
proviso to section 129 some time is taken and the assessment proceedings
cannot be completed within the normal period of limitation, then the period
of limitation gets extended by such time taken for giving the assessee an
opportunity to reopen the earlier proceedings or for rehearing. Section
129 is applicable to normal assessments made under section 143(3) of the
Act as well as the block assessments made under section 158BC of the
(ii)Commissioner of Income-tax v. M.I.Builders (P) Ltd [(2014) 44
taxmann.com 360 (Allahabad)], wherein, it was observed as follows:
“17.Having heard learned counsel for the parties and perusing the
records, we are of the view that on 29.3.2004, when the notice under
section 148(1) of the Act was issued, ACIT, Range-IV, Lucknow have no
jurisdiction over the Assessee on the date of issuance of such notice as the
jurisdiction over the Assessee was transferred to the Additional CIT,
Range-I, Lucknow vide order dated 1.8.2001 passed under section 120 of
the Act by the CCIT, Lucknow. Therefore, it cannot be situation where two
Assessing Officer would have simultaneous jurisdiction over the assessee,
one being Additional CIT, Range-I, Lucknow and other being ACIT,
Range-IV, Lucknow. In these backgrounds, the Tribunal has rightly held
that the issuance of notice under section 148(1) of the Act by the ACIT,
Range-IV, Lucknow was without jurisdiction.”
(iii)Pr.Commisioner of Income Tax-II Lucknow v. Mohd. Rizwan Prop.
M/s.M.R.Garments Moulviganj [ITA No.100 of 2015 dated 30.03.2017], in
which, it was held as under:
“34.Section 148 clearly talks of issue of notice by A.O. Meaning
thereby, A.O. having jurisdiction over Assessee. In fact, it is his
satisfaction which is to be recorded for justifying reopening of assessment
/ reassessment proceedings as contemplated under section 147 and
recording of reasons for the same purpose is mandatory. The satisfaction
of A.O. could not have been hired or be delegated to any other authority.”
“43.The reason for issuance of notice by Competent A.O. is quite
obvious inasmuch as such notice could have been issued only when
concerned A.O. has reason to believe that some income has escaped
assessment and recomputation / reassessment is needed. Now such
satisfaction can be of that A.O. only who has jurisdiction in the matter and
not of any third party.
44.We, therefore, hold that in the present case, no valid notice
under section 148 was issued by Jurisdictional A.O before making
assessment / reassessment and, therefore, proceedings of reassessment
pursuant to notice issued under section 148 by an incompetent officer are
void and ab initio.”
(iv)Pankajbhai Jaysukhlal Shah v. Assistant Commissioner of Income-tax
Circle 2 [(2019)110 taxmann.com.51 (Gujarat), which was affirmed by the
Hon'ble Supreme Court in Assistant Commissioner of Income-tax Circle-2 v.
Pankajbhai Jaysukhlal Shah [(2020) 120 taxmann.com 318 (SC)] and the
ratio laid down therein is as follows:
“10.....while the reasons for reopening the assessment have been
recorded by the jurisdictional Assessing Officer viz., the Deputy
Commissioner of Income Tax, Circle-2, Jamnagar, the impugned notice
under section 148(1) of the Act has been issued by the Income Tax Officer,
Ward 2(2), Jamnagar who had no jurisdiction over the petitioner and
hence, such notice was bad on the count of having been issued by an
officer who had not authority in law to issue such notice. As a necessary
corollary it follows that no proceedings could have been taken under
section 147 of the Act in pursuance of such invalid notice. In the aforesaid
premises, the impugned notice under section 148(1) of the Act as well as
all the proceedings taken pursuant thereto cannot be sustained.”
The legal proposition laid down in the aforesaid decisions is that “notice under
section 148 is mandatory to reopen/ reassess the income of the assessee and
such a notice should have been issued by the competent assessing officer, who
has jurisdiction”; “The jurisdictional Assessing Officer, who records the
reasons for reopening the assessment as contemplated under sub section (2) of
section 148, has to issue notice under section 148(1), then only, such a notice
issued under section 148(1) would be a valid notice”; “The officer recording
the reasons under section 148(2) of the Act and the officer issuing notice under
section 148(1) has to be the same person”; “Section 129 is applicable when in
the same jurisdiction, there is a change of incumbent and one assessing officer
is succeeded by another”; and “when once the initiation of reassessment
proceedings is held to be invalid, whatever follows thereafter must also,
necessarily be invalid”.
14. Applying the provisions of law as well as the legal proposition laid
down in the aforesaid decisions to the facts of the present case, wherein,
admittedly, the appellant is an assessee on the file of the second respondent
and hence, the first respondent has no jurisdiction over the appellant to issue
notice under section 148 for reopening the assessment for the relevant
assessment year, after recording the reasons to believe that some of the income
of the appellant has escaped assessment, this court is of the opinion that the
notice dated 28.03.2018 issued by the first respondent under section 148 of the
Act, without jurisdiction, lacks legal sanctity and hence, the same is held to be
invalid. As a sequitur, the continuation of the reassessment proceedings by the
second respondent, who is the jurisdictional assessing officer, without issuing
any fresh notice as contemplated under section 148, but issuing notice dated
14.12.2018 under section 143(2) r/w 129 of the Act, which applies only for
change in incumbent within the same jurisdiction, is also held to be invalid.
15. Pertinently, it is to be pointed out at this stage that “if an order is
passed by a judicial or quasi-judicial authority having no jurisdiction, it is
an obligation of Appellate Court to rectify the error and set aside the order
passed by the authority or forum having no jurisdiction” [Refer: State of
Gujarat v. Rajesh Kumar Chimanlal Barot and another, AIR 1996 SC
2664]. Therefore, the notice issued by the first respondent under section 148 as
well as the consequential notice issued by the second respondent under section
143(2) r/w 129, cannot be allowed to be sustained. However, the learned Judge
erred in directing the second respondent to continue the reassessment
proceedings and granting liberty to the appellant to file objections and avail the
opportunity of personal hearing to be provided, by the order impugned herein,
which is liable to be set aside, in the considered view of this court.
16. As already held by this court, the first respondent, who recorded the
reasons for reopening the assessment under section 148(2), has no jurisdiction
over the appellant, to issue notice dated 28.03.2018 under section 148(1).
Though the files pertaining to the reassessment proceedings of the appellant
were transferred, the second respondent has no authority to continue the
reassessment proceedings under section 129 and hence, the notice dated
14.12.2018 issued by him is also held to be invalid. The invalid notices so
issued by the respondents vitiate the entire reassessment proceedings initiated
against the appellant. Admittedly, no notice under section 148 was issued by
the second respondent, who is the jurisdictional assessing officer, for
reassessment of the return of income of the appellant, within the time frame
stipulated under the Act. In this case, the limitation period of six years for
reopening the assessment for the year 2011-12 under section 147 of the Act,
came to an end on 31.03.2018. In such circumstances, there is no requirement
for this court to go into the other issue based on the factual matrix projected by
the appellant i.e., whether the appellant has disclosed fully and truly all the
material particulars that are necessary for assessment for the relevant
assessment year.
17. In the ultimate analysis, the writ appeal stands allowed by setting
aside the notices impugned in the writ petition and the order impugned herein.
No costs. Consequently connected miscellaneous petition is closed.
1. Assistant Commissioner of Income Tax-23(2), Mumbai | The Madras High Court invalidated the reassessment procedures on the basis that the reopening of the income tax assessment was conducted by an officer without jurisdiction.The division bench of Justice R. Mahadevan and Justice J.Sathya Narayana Prasad has observed that the ACIT Mumbai, who recorded the reasons for reopening the assessment, has no jurisdiction over the appellant, to issue...
The Madras High Court invalidated the reassessment procedures on the basis that the reopening of the income tax assessment was conducted by an officer without jurisdiction.
The division bench of Justice R. Mahadevan and Justice J.Sathya Narayana Prasad has observed that the ACIT Mumbai, who recorded the reasons for reopening the assessment, has no jurisdiction over the appellant, to issue a notice dated 28.03.2018. Though the files pertaining to the reassessment proceedings of the appellant were transferred, the ACIT Chennai has no authority to continue the reassessment proceedings. Hence, the notice issued by him was also held to be invalid.
The appellant was an assessee on the file of the ACIT at Chennai. For the assessment year 2011-2012, the assessee filed her return of income on 19.04.2012, admitting an income of Rs.11,60,000/-, which was processed by the Assessing Officer under Section 143 (1) of the Income Tax Act, 1961.
After a period of five years, the assessee received a notice dated March 28, 2018 issued by the ACIT Mumbai under Section 148 purportedly to re-assess the income tax return submitted by her for the assessment year 2011-2012.
In response, the assessee submitted a reply dated 26.04.2018 stating that the ACIT Mumbai has no jurisdiction to issue a reassessment notice. Therefore, the assessee requested to drop the reassessment proceedings. Subsequently, the ACIT Mumbai transferred the files pertaining to the appellant to the ACIT Chennai.
The ACIT Chennai continued the reassessment proceedings by issuing a notice dated 12.12.2018 directing the appellant to appear and file a return of income along with supportive documents.
The assessee was aggrieved by the notices and filed the appeal.
The department contended that the appellant had received an amount towards her share in respect of the property in Mumbai from a developer within the jurisdiction of the ACIT Mumbai. Therefore, a notice under section 148 of the Act was issued by the ACIT Mumbai. When the appellant raised an issue of jurisdiction, the entire materials collected by the ACIT Mumbai were sent to the ACIT Chennai for continuing the reassessment proceedings. Accordingly, the ACIT Chennai seized of the reassessment proceedings within whose jurisdiction the appellant resides.
The single judge observed that the notice initially issued by the ACIT Mumbai against the appellant through improper, need not be set aside. The proceedings were subsequently transferred to the Income Tax Authorities at Chennai; the commencement of the proceedings by issuing a notice dated 14.12.2018 in no way prejudiced the appellant. The appellant was at liberty to file her objections and avail herself of an opportunity of hearing. The court dismissed the writ petition.
The appellant challenged the order of the single judge bench.
The appellant contended that the ACIT Mumbai lacked jurisdiction to begin reassessment proceedings by issuing the notice dated March 28, 2018.The ACIT Mumbai was aware that the appellant was not residing within the jurisdiction of the ACIT Mumbai. After a period of five years from the completion of the original assessment for the assessment year 2011-2012, the reassessment proceedings were initiated. It alleged that some of the income was not disclosed by the appellant truly and fully. However, there was no income omitted to be included by the appellant for assessment during the assessment year in question. Therefore, the reassessment proceedings ought not to have been initiated by the ACIT Mumbai against the appellant.
The court held that the notice issued by the ACIT Mumbai under section 148 as well as the consequential notice issued by the ACIT Chennai cannot be allowed to be sustained.
The court held that the single judge bench erred in directing the ACIT Chennai to continue the reassessment proceedings.
"In such circumstances, there is no requirement for this court to go into the other issue based on the factual matrix projected by the appellant, i.e., whether the appellant has disclosed fully and truly all the material particulars that are necessary for assessment for the relevant assessment year," the court said.
Case Title: Charu K. Bagadia Versus Assistant Commissioner of Income Tax-23(2), Mumbai
Case No: Writ Appeal No. 2493 of 2021 and C.M.P. No. 16191 of 2021
Dated: 27.06.2022
Counsel For Appellant: Advocate Vandana Vyas
Counsel For Respondent: Senior Panel Counsel Hema Muralikrishnan |
Dated this the 1st day of August, 2022
The appellant/wife filed Mat.Appeal No.181 of 2013 against
the dismissal of O.P No.944 of 2005 on the file of Family Court,
Thiruvananthapuram, and she along with her three children filed
R.P (F.C) No.41 of 2019, challenging the order in M.C No.248 of
2010 dated 10.05.2017. In both cases, the respondent is her
2. Brief facts necessary for the appeal could be stated as
The appellant and the respondent are husband and wife.
Their marriage was solemnised on 11.03.1990 as per Muslim
rites and custom. Three children were born in their lawful
wedlock. At the time of marriage, the appellant was given 50
sovereigns of gold ornaments and 42 cents of land from her
family, apart from a gold chain weighing 2 sovereigns and a gold
ring weighing 1 sovereign given to the respondent/ husband. By
selling away her 50 sovereigns of gold ornaments, the husband
purchased plaint ‘A’ schedule property having 25 cents in his
name though it was agreed to be purchased in her name. Only
later she could realise that the document was registered in the
name of the respondent. The respondent constructed a house in
plaint ‘A’ schedule property expending his own money. But the
movables in that house were gifted to the appellant from her
family. The respondent ill-treated the appellant demanding more
dowry. Her brothers purchased six cents of land in her name,
but the respondent compelled her to sell away that property for
constructing shop rooms in ‘A’ schedule property. She sold away
that property for Rs.2,40,000/- and that amount was utilised for
constructing five shop rooms in ‘A’ schedule property. In April
2005, the appellant and her children were ousted from the house
in the ‘A’ schedule property, and thereafter he contracted a
second marriage. The appellant and her children were
abandoned by the respondent and he failed even to pay their
maintenance. So, she filed O.P No.944 of 2005, for declaring her
title over ‘A’ schedule property and to get back ‘B’ schedule
movables kept in the house in ‘A’ schedule. She along with her
three children filed M.C No.185 of 2005 for maintenance from
the respondent.
3. The respondent/husband filed counter affidavit denying
the claim of the appellant/wife. According to him, the appellant
was leading a wayward life and she misused and misappropriated
the amounts he had given to her, while he was working abroad.
No property was purchased by selling away her gold ornaments,
and no property was purchased in her name by her brothers.
The house as well as the shop rooms in ‘A’ schedule were
constructed by the respondent using his own hard earned
money. Regarding her maintenance claim also, the respondent
disowned his liability as he was even doubting the paternity of
the children.
4. After formulating necessary issues by the Family Court,
the parties went on trial. Both the O.P and M.C were tried
together. PW1 was examined and Exts.A1 to A15 were marked
from the side of the appellant/wife, and RW1 was examined and
Ext.B1 was marked from the side of the respondent/husband.
5. On an anxious consideration of the rival contentions put
forward from either side, the Family Court dismissed
O.P No.944 of 2005 and allowed M.C No.185 of 2005, awarding
monthly maintenance allowance @ Rs.2,000/-, Rs.1,850/-,
Rs.2,150/- and Rs.1,600/- respectively to petitioners 1 to 4.
6. Against the order in M.C No.185 of 2005, the
respondent/husband preferred R.P (F.C) No.257 of 2009
challenging the quantum of maintenance awarded, as he had lost
his job and suffered a stroke as well. This Court, as per
judgment dated 18.03.2010, revised and fixed the monthly
maintenance allowance @ Rs.2,000/- to the wife and Rs.1,500/-
each to the children from 29.10.2005, giving liberty to the
parties to move for variance, when circumstances exist under
Section 127 of Cr.P.C.
7. Later, the respondent/husband filed C.M.P No.229 of
2010 under Section 127 of Cr.P.C to modify the maintenance
order, as he had no assets or source of income, after his return
from Gulf. That C.M.P was converted into M.C No.248 of 2010.
PWs 1 to 3 were examined and Exts.A1 to A14 were marked from
the side of the husband and CPWs 1 and 2 were examined and
Exts.B1 to B6 were marked from the side of the wife .
8. The learned Family Court Judge, on analysing the facts
and evidence, found that the husband is suffering from renal
problem and he needs kidney transplantation and moreover a
portion of his body was paralysed as he had suffered a stroke.
Finding that the husband had no means to pay the maintenance,
the order passed in M.C No.185 of 2005 was altered and it was
ordered that the wife and children were not entitled to recover
maintenance from the respondent/husband from the date of
petition. Challenging that order dated 10.05.2017, the wife and
children preferred R.P (FC) No.41 of 2019.
9. Let us have a scrutiny of the facts and evidence, to find
out whether any interference is warranted in the judgment and
order impugned.
10. Admittedly, the appellant and the respondent are
husband and wife. Ext.A3 document shows that, even prior to
the marriage, the appellant/wife was having 43 cents of land,
settled in her favour by her sister. The respondent is not
disputing that fact, and that property is not a subject matter
here. Though the appellant contended that, in connection with
the marriage, she was given 50 sovereigns of gold ornaments as
her patrimony, no evidence is forthcoming to support that
contention. There is no evidence to show that, a gold chain
weighing 2 sovereigns and a gold ring weighing 1 sovereign were
given to the respondent in connection with the marriage.
11. Though the pleadings of the appellant are to the effect
that, her 50 sovereigns of gold ornaments were utilised for
purchasing 'A' schedule property, there is no pleading to the
effect that, those ornaments were ever entrusted with the
respondent. But, when examined before court as PW1, she put
forward a new case that her entire 50 sovereigns of gold
ornaments were put in the locker of the sister of the respondent
and without informing her, those ornaments were sold away and
the sale proceeds were utilised to purchase 'A' schedule property.
At the same time, she has got a contention that, the respondent
had agreed to purchase 'A' schedule property in her name. But,
only later she came to know that the said property was
purchased in the name of the respondent himself.
12. The appellant is admitting that, at the time of marriage
and even thereafter, the respondent was employed in Gulf
countries drawing monthly income of Rs.1 lakh. The appellant
had no job or income of her own. In the absence of evidence
either to show that, the appellant was having 50 sovereigns of
gold ornaments at the time of marriage, or to prove entrustment
of that gold with the respondent or his sister, we could not
presume that 'A' schedule property was purchased in the name
of the respondent, by selling away the gold ornaments of the
13. The appellant contended that, the respondent
compelled her to bring money from her family for constructing a
house in 'A' schedule property. Her case is that, when there was
pressure to bring money from home, her brothers purchased six
cents of land in her name. If she was compelled to bring money,
there was no probability for her brothers to purchase a landed
property in her name. According to her, that six cents of land
was subsequently sold away for a sale consideration of
Rs.2,40,000/- and with that amount, five shop rooms were
constructed in 'A' schedule property. But, no evidence is
forthcoming to substantiate that fact. According to the
respondent, he himself purchased 'A' schedule property,
constructed a house therein, and later constructed shop rooms
also in that property, for which no gold or money of the appellant
was utilised.
14. During cross examination, PW1 admitted that, the sale
proceeds of her property was never entrusted with the husband,
and it was deposited in her own bank account. Admittedly, she
sold away her 43 cents to her brother, and the sale proceeds
were deposited in her account, and that amount also was never
given to the respondent. Subsequently, she returned that money
to her brother and got the property reconveyed in her name.
There is nothing to show that 'A' schedule property was
purchased and the house and shop rooms were constructed with
the funds of the appellant. So, the Family Court rightly found
that she was not entitled for a declaration as prayed for, with
respect to 'A' schedule property.
15. Now coming to the 'B' schedule movables, according to
the appellant, 38 items in 'B' schedule belonged to her and it was
gifted to her from her family. But, during cross examination, she
admitted that, the gas connection which she had claimed is in
the name of her husband. The motorcycle claimed by her was
brought by the husband from Gulf. According to her, item Nos.1
to 28 were given from her family in connection with the
housewarming function. But, there is no evidence to show that
'B' schedule movables were either purchased or gifted to the
appellant from her family. Admittedly, she had no job or income
at the time of marriage or even after that. The Family Court
rightly rejected her claim for recovery of 'B' schedule movables
also. Hence her Mat.Appeal No.181 of 2013 is liable to be
16. Coming to R.P (F.C) No.41 of 2019, the Family Court,
by the impugned order dated 10.05.2017, altered the order in
M.C No.185 of 2005, finding that the appellant and her children
are not entitled to recover maintenance from the respondent
from the date of the petition. It is not specified from the date of
which petition the order was altered.
17. Originally in M.C No.185 of 2005, maintenance was
awarded to the wife and children finding that they have no
means for their sustenance, and the respondent/husband who
was having sufficient means was not maintaining them willfully.
Though the husband approached this Court by filing R.P(FC)
No.257 of 2009 against the maintenance awarded in M.C No.185
of 2005, with similar allegations of stroke and no means, the
order was not cancelled, but it was only revised fixing the
maintenance @ Rs.2,000/- to the wife and Rs.1,500/- each to
the children. That judgment was dated 18.03.2010. Again the
respondent approached the Family Court for modification of the
maintenance allowance under Section 127 of Cr.P.C availing the
liberty granted by the High Court to move for variance.
18. The Family Court found that the respondent was
suffering from kidney problem and a portion of his body was
paralysed due to stroke. He was found to be a man of no means,
incapable of doing any job also. There was no contra evidence
from the part of the wife to show that he was having any income
or assets in his name. Further she had no case that, he was
physically fit to do any job to earn income therefrom. So, the
finding of the Family Court that the order passed in M.C No.185
of 2005 requires alteration, is well founded. But, in fact, the
maintenance allowance prevailing then was the one modified and
fixed by this Court in R.P (F.C) No.257 of 2009. Since the parties
were given liberty by this Court to move for variance, the Family
Court was empowered to alter or modify that order, on being
satisfied that circumstances exist under Section 127 of Cr.P.C.
19. Now the question to be answered is what shall be the
crucial date on which an order of cancellation of maintenance
allowance to take effect? Is it the date of the application for
cancellation or the date of the order. To put it otherwise whether
the order of cancellation of maintenance operates prospectively
or retrospectively?
20. In the case on hand, the Family Court cancelled the
maintenance order from the date of application, which means the
cancellation was ordered retrospectively.
Section 125(2) of Cr.P.C reads thus:
“Any such allowance for the maintenance or interim
maintenance and expenses for proceeding shall be
payable from the date of the order, or, if so ordered, from
the date of the application for maintenance or interim
maintenance and expenses of proceeding, as the case
may be”.
So, maintenance allowance ordered under Section 125 Cr.P.C
shall be payable either from the date of order, or if so ordered it
can be from the date of application.
21. Section 127(1) of Cr.P.C empowers the Magistrate to
alter the monthly maintenance awarded under Section 125
Cr.P.C, on proof of a change in the circumstances and
Section 127(2)Cr.P.C gives the power to the Magistrate to cancel
or vary the order. The legislature under Section 125(2) Cr.P.C
has given power to the Magistrate to date back the order to the
date of application, but such a power is not there under
Section 127(2) of Cr.P.C. So, the order of cancellation shall be
effective only from the date of order, and it cannot date back to
the date of application. Till the order is altered, modified or
cancelled, the earlier orders will remain effective. So the order
of cancellation of maintenance always operates prospectively and
not retrospectively.
22. In Balraj Singh vs. Balkar Singh (1983 (2) Crimes
506), the Punjab & Haryana High Court held that, Section 127(2)
of the Code of Criminal Procedure enjoins that where after an
order for maintenance passed in favour of the wife under Section
125(2) of the Code, the husband obtains a decree necessitating
the cancellation of the order, the court shall cancel or vary the
order. The legislature under Section 125(2) Cr.P.C has given
power to the Magistrate to date back the order of the application,
but does not give any such power under Section 127(2) of the
Code. We cannot read a power into the Code which is not there.
The order of cancellation of maintenance always operates
prospectively and not retrospectively. This position was
reiterated by the Rajasthan High Court in Harikishan vs.
Smt.Shantidevi (1989 Crl.LJ 439) as well.
23. So, the impugned order altering/cancelling the
maintenance order in M.C No.185 of 2005 from the date of the
petition, is not valid or proper in the eye of law. The cancellation
order will take effect only from the date of cancellation i.e. from
10.05.2017. The R.P (F.C) is allowed to that extent.
In the result, Mat.Appeal is dismissed and R.P (F.C) is
allowed in part, setting aside the order cancelling the
maintenance awarded in M.C No.185 of 2005 from the date of
petition. It is further clarified that, the revision petitioners are
entitled to recover the arrears of maintenance as ordered in
M.C No.185 of 2005 and as modified in R.P (FC) No.257 of 2009
till 10.05.2017, and the cancellation order will take effect only
from the date of order i.e. 10.05.2017. No order as to costs. | The Kerala High Court on Monday ruled that an order of cancellation of maintenance under Section 127(2) of the Code of Criminal Procedure (CrPC) always operates prospectively and not retrospectively.A Division Bench of Justice A. Muhamed Mustaque and Justice Sophy Thomas added that such cancellation orders cannot date back to the date of application and will operate only from the date...
The Kerala High Court on Monday ruled that an order of cancellation of maintenance under Section 127(2) of the Code of Criminal Procedure (CrPC) always operates prospectively and not retrospectively.
A Division Bench of Justice A. Muhamed Mustaque and Justice Sophy Thomas added that such cancellation orders cannot date back to the date of application and will operate only from the date the maintenance was cancelled.
"The order of cancellation shall be effective only from the date of order, and it cannot date back to the date of application. Till the order is altered, modified or cancelled, the earlier orders will remain effective. So the order of cancellation of maintenance always operates prospectively and not retrospectively."
The appellant-wife had married the respondent-husband in 1990 and they had three children in their wedlock. The wife contended that during their marriage, her husband regularly ill-treated her for more dowry.
In 2005, she and her children were ousted from the matrimonial house while the husband contracted a second marriage. Alleging that her husband abandoned her and their children without even paying maintenance, the wife moved a plea before the Family Court under Section 125 CrPC.
The Family Court awarded monthly allowance to the wife and the three children respectively finding that they have no means for their sustenance, and the respondent despite having sufficient means, was not maintaining them willfully.
The quantum was reduced after the husband alleged that he had suffered a stroke and had no means to maintain them.
A few years later, the respondent preferred another plea under Section 127 of CrPC to modify the maintenance order citing that he had no assets or source of income. At this juncture, the Family Court found that the husband was suffering from several diseases and that a portion of his body was paralysed after the stroke.
Finding him to be incapable of doing any job, the maintenance order was cancelled. It was ordered that the wife and children were not entitled to recover maintenance from the husband from the date of the petition.
The Bench discarded the appellant's argument that she was compelled to bring more dowry from her house based on factual circumstances.
However, it was noted that the Family Court had cancelled the maintenance order from the date of application, which means the cancellation was ordered retrospectively.
The Court emphasised that the maintenance under Section 125 CrPC is payable from the date of order, or if so ordered, it can be from the date of application. It highlighted that while the legislature has empowered the Magistrate to date back the order to the date of application under Section 125, no such power was there under Section 127.
"We cannot read a power into the Code which is not there. The order of cancellation of maintenance always operates prospectively and not retrospectively."
Therefore, it was found that the order of cancellation was effective only from the date of order and that it cannot date back to the date of application.
As such, the order cancelling the maintenance awarded from the date of the petition was set aside. It was further clarified that the wife and children were entitled to recover the arrears of maintenance as modified till 2017 and that the cancellation order will take effect only from the date of order i.e. 10.05.2017.
Advocates N. Mahesh and P. Rahim appeared for the wife while the husband was represented by Advocates S. Vinod Bhat and Anagha Lakshmy Raman.
Case Title: Jumaila Beevi v. A. Nissar |
1. By way of the present application, permission has been sought
by petitioner/accused Amrinder Singh @ Raja to file the petition
bearing No. CRL.M.C. 1571/2021 seeking quashing of FIR No.
258/2010 and the charge-sheet and all the proceedings arising
therefrom including the proceedings initiated against the petitioner u/s
82/83 of the Code of Criminal Procedure through his S.P.A. holder Sh.
Sukhjinder Singh S/o Mohinder Singh aged about 38 years R/o H. No.-
489, Street No. 8 Ghuman Nagar, Sarhandh Road, Patiala Punjab who
is the brother of the petitioner/accused. The present application under
disposal has been signed by the said SPA of the petitioner/accused. The
affidavit in support of this application has also been executed by the
said SPA holder.
2. The title of the petition bearing No. CRL.M.C. 1571/2021 reads
The State of NCT of Delhi.
3. I have heard the Ld. counsel for the petitioner, Ld. APP for the
State and perused the records of this case.
4. It is contended by the Ld. counsel for the petitioner/accused that
the petitioner/accused has not been named in the FIR and there is no
admissible evidence against the petitioner/accused and the
petitioner/accused has only been made an accused on the basis of the
disclosure statement of the co-accused. It is further submitted by the
Ld. counsel for the petitioner/accused that there is nothing on record to
show that the petitioner was a travel agent doing the business of travel
agency or was doing any business ancillary to travel agency. He further
submitted that the petitioner is a business man and working as a
Director of an NRI company, the fact which was thoroughly
investigated by the IO in May 2010. It is further submitted by the Ld.
counsel for the petitioner/accused that the order dated 05.03.2016
declaring the petitioner/accused as absconder is bad in law and has
been passed without following the due procedure.
5. On the other hand, it is submitted by the Ld. APP for the State
that there are allegations against the petitioner/accused and it cannot be
said that the case is of no evidence. It is further submitted by the Ld.
APP that this is not the first time that the petitioner has been declared
absconder and he further submitted that the petitioner was previously
declared PO vide order dated 20.12.2011 and the said proceedings were
dropped vide order dated 11.11.13 when an application in this regard
was moved by the petitioner/accused for dropping of the proceedings
U/s 82 Cr.P.C. It is further submitted by the Ld. APP that despite this,
the petitioner did not mend his ways and again failed to appear before
the trial Court and he was again declared absconder vide order dated
6. It is vehemently argued by the Ld. APP that the present petition
under article 227 of the Constitution of India read with section 482 of
the Code of Criminal Procedure is not maintainable as the same has
been filed through S.P.A. holder and the present application and
petition are liable to be dismissed.
(Criminal) 586; it has been observed as under:-
“9. The plain reading of the ratio of law, laid down, in
the aforesaid cases, clearly goes to reveal, that it is
only the accused person, against whom, a criminal
case, has been registered or a criminal complaint, has
been filed, can file a petition, under Section 482
Cr.P.C., in the High Court, for quashing the
complaint, the summoning order, and the subsequent
proceedings, and no third person, can fight a proxy
war, on his behalf, under the garb of public interest
litigant. The aggrieved party, which is affected by an
order, is required to seek redress of its grievance, by
questioning the legal validity or correctness of the
same. It is another thing, if the aggrieved party, is
suffering from some disability i.e. unless such party is
a minor, an insane person, or is suffering from any
other disability, which, in law, is recognized as
sufficient to permit any other person e.g. next friend,
to move the Court, on his behalf. On behalf of minor,
or insane person, a guardian or a next friend, initiates
proceedings, so as to challenge the legality and
validity of the order, passed against him, to seek
redressal of the grievance, as under law, such a person
having disability, cannot be said to be competent, to
file a petition, except through next friend or guardian.
In the instant case, there is nothing, on the record, that
Amit Ahuja, petitioner, is suffering from any
disability, recognized by the provisions of law. He is
an accused, in the aforesaid complaint. It is he, who is
aggrieved, against the complaint and the summoning
order. It is he, who can challenge the same, on any
ground which may be available to him, under the
provisions of law. If, in criminal cases, until and
unless, a person aggrieved, suffers from some
disability, recognized by law, a stranger or some other
person, is allowed, to fight the proxy war, then the
very purpose of criminal justice system, shall be
defeated. In that event, the Courts, would be
mushroomed, by public interest litigants. In this view
of the matter, the present petition, under Section 482
Cr.P.C., filed by the petitioner, through his attorney, is
not maintainable. On this ground alone, the same is
liable to be dismissed.”
8. In T.C. Mathai and another Vs. The District & Sessions Judge,
Thiruvananthapuram, Kerala, AIR 1999 SC 1385; in para 15, it is
“15. Section 2 of the Power of Attorney Act cannot
override the specific provision of a statute which
requires that a particular act should be done by a party
in person. When the Code requires the appearance of
an accused in a court it is no compliance with it if a
power of attorney holder appears for him. It is a
different thing that a party can be permitted to appear
through counsel. Chapter XVI of the Code empowers
the Magistrate to issue summons or warrant for the
appearance of the accused. Section 205 of the Code
empowers the Magistrate to dispense with “the
personal attendance of accused, and permit him to
appear by his pleader” if he sees reasons to do so.
Section 273 of the Code speaks of the powers of the
court to record evidence in the presence of the pleader
of the accused, in cases when personal attendance of
the accused is dispensed with. But in no case can the
appearance of the accused be made through a power
of attorney holder. So the contention of the appellant
based on the instrument of power of attorney is of no
avail in this case.”
9. In the instant case as well the petition has been filed through SPA
holder which is per se not maintainable. Therefore no permission can
be granted to the petitioner to file the present petition bearing No.
CRL.M.C. 1571/2021 under article 227 of the Constitution of India
read with section 482 of the Code of Criminal Procedure seeking
quashing of FIR No. 258/2010 and the charge-sheet and all the
proceedings arising therefrom including the proceedings initiated
against the petitioner u/s 82/83 of the Code of Criminal Procedure
through his SPA holder. Therefore, I find no ground to accept the
prayer made in the present application bearing No. Crl.
M.A.10986/2021, the same is, therefore, dismissed, consequently, the
petition bearing No. CRL.M.C. 1571/2021 is also dismissed. All
pending applications (if any) are disposed of. | The Delhi High Court has held that the accused cannot recourse to a third party, such as a Power of Attorney holder, to represent him in criminal proceedings. Citing the mandatory requirement of personal appearance of the accused in the Code of Criminal Procedure, the Court noted that the presence of third parties in criminal cases would defeat the very purpose of the...
The Delhi High Court has held that the accused cannot recourse to a third party, such as a Power of Attorney holder, to represent him in criminal proceedings.
Citing the mandatory requirement of personal appearance of the accused in the Code of Criminal Procedure, the Court noted that the presence of third parties in criminal cases would defeat the very purpose of the criminal justice system.
Accordingly, the Court dismissed a petition under Article 227, Constitution of India read with Section 482, Code of Criminal Procedure 1973, seeking quashing of proceedings through the Petitioner's Representative holding his Special Power of Attorney (S.P.A.).
Background
The Petitioner accused had been named absconder vide Order dated 5.3.2016 by the Trial Court. The Petitioner was embroiled in criminal proceedings under an F.I.R. and charge sheet under Section 82/83 of the CrPC. Challenging the Order and the proceedings, the Petitioner filed a Petition seeking to quash all criminal proceedings through his S.P.A. holder. The affidavit for the Petition was also filed by the S.P.A. holder. The Court decided on the maintainability of the Petition filed via S.P.A. holder.
Bar to appoint S.P.A. Holder
The Delhi High Court held that the Petition filed through a S.P.A. holder is not maintainable.
The Court cited the Supreme Court in Amit Ahuja v. Gian Parkash Bhambri (2010) and T.C. Mathai and another v. The District & Sessions Judge (1999).
The Supreme Court in T.C. Mathai described representation through Power of Attorney as an act of non-compliance in criminal cases when a Statute requires explicitly an accused to appear in person. Such a representation may frustrate the vires of statutes such as Chapter XVI, Sections 205 and 273, which require the personal appearance of the accused.
The Court held thus, "Section 2 of the Power of Attorney Act cannot override the specific provision of a statute which requires that a particular act should be done by a party in person." In sum, the law requires that the accused not recourse to a proxy or a third person to appear on his behalf or represent his case citing public interest in criminal proceedings.
The exception to this general rule was laid out in Amit Ahuja for minors, persons with disabilities, insane persons, or other incompetent person named as accused. Further, only a guardian or a next friend may initiate the proceedings in such circumstances. This prevents the Court from mushrooming by third parties/public interest litigants in criminal cases. Further, filing such a petition through a proxy would defeat the very purpose of the criminal justice system.
Deferring to this line of precedents, Justice Rajnish Bhatnagar held:
"In the instant case as well, the Petition has been filed through S.P.A. holder which is per se not maintainable. Therefore no permission can be granted to the Petitioner to file the present Petition bearing No. CRL.M.C. 1571/2021 under article 227 of the Constitution of India read with section 482 of the Code of Criminal Procedure seeking quashing of F.I.R. No. 258/2010 and the charge-sheet and all the proceedings arising therefrom including the proceedings initiated against the Petitioner u/s 82/83 of the Code of Criminal Procedure through his S.P.A. holder."
Accordingly, the Petition was dismissed.
Case Title: Amrinder Singh & Raja Through: Spa Holder Sukhjinder Singh v. The State of NCT of Delhi
Date of Judgment: 04.01.2022
Coram: Justice Rajnish Bhatnagar |
The present application has been filed for review of the order
dated 27.04.2022 on the ground that there is an error apparent on the record
as real facts were not put forth before this Court.
It is apt to notice that the present application for review has
been filed by a counsel who was neither the filing counsel nor the arguing
counsel. A perusal of the order dated 27.04.2022 would reveal that the
counsel appearing on behalf of the petitioner had not pressed the revision
petition on merits and had also made a statement that he would withdraw the
appeal pending before the Appellate Authority against the eviction order
dated 02.12.2021 and further that he is willing to pay the entire arrears of
rent and future rent/compensation for use and occupation of the premises in
case he is granted a period of 09 months for vacating the same since he is
running his shop in the said premises since 1973.
RA-CR-38-2022 and
Mr. Rahul Rampal, Advocate, who was present in Court,
accepted notice on behalf of the respondents. On instructions from the
respondents, he stated that the respondents have no objection in giving 09
months’ time to the petitioner to vacate the premises provided that the entire
arrears be cleared within a period of 15 days and the future
rent/compensation for use and occupation was paid by the 10th of every
month. In view of the statements made by the learned counsels, the petition
was disposed off.
Learned counsel for the applicant has firstly contended that he
has obtained a no objection from the earlier counsel who had appeared
before this Court on 27.04.2022. It is next contended by the learned counsel
that the error apparent on the face of the record is that certain facts were not
brought to the notice of this Court and in view thereof the order dated
27.04.2022 be reviewed and the matter be considered on merits.
In the present case, the present review application has been filed
by the counsel who was neither the filing counsel nor the arguing counsel
nor was he present at the time of passing of the order dated 27.04.2022. A
bare perusal of the order dated 27.04.2022 reveals that the revision petition
was not pressed on merits by the counsel for the petitioner and was disposed
off on mutually agreeable terms. Learned counsel for the applicant has
contended that he has taken no objection from the earlier counsel. However,
the same would not suffice inasmuch as the petition was disposed off on the
RA-CR-38-2022 and
statements made by the counsel and none other than the counsel who had
made a statement on 27.04.2022 would be in a position to say what had
transpired on the said date.
Further, the Supreme Court of India has repeatedly deprecated
the conduct of the parties of changing their counsels and filing review
petitions. Support qua the same can be drawn from the judgment of the
Supreme Court passed in Om Parkash Vs. Suresh Kumar [2020(13) SCC
188] and T.N.Electricity Board & Anr. Vs. N. Raju Reddiar & Anr.
Learned counsel for the applicant has not been able to point out
any error apparent on the face of the record. The applicant by filing the
present application is wanting to resile from the statement made by the
earlier counsel and to re-argue the matter on merits, which cannot be
permitted in law. The parties are bound by the statements made by their
counsel in Court. It is not the case of the applicant that the counsel was not
authorized to made the statement. Infact the only ground of review is that
there is an error apparent on the record as the real facts were not put before
In view of the above, I do not find any merit in the present
application which is dismissed with exemplary costs of Rs.20,000/- to be
deposited with the Chandigarh Legal Aid Society.
NOTE : Whether speaking/non-speaking : Speaking
Whether reportable : YES/NO | The Punjab and Haryana High Court has reiterated that parties are bound by the statements made by their counsel in Court. The observation was made while disallowing a review application filed against an order on the ground of an 'error apparent'.
The bench comprising Justice H.S. Madaan held that the counsel for the applicant had not been able to point out any error apparent on the face of the record and therefore, the applicant was trying to resile from the statement made by the earlier counsel and to re-argue the matter on merits, which is not permitted in law.
It noted that the instant review application has been filed by the counsel who was neither the filing counsel nor the arguing counsel nor was he present at the time of passing of the impugned order.
The court further noted that the revision petition was not pressed on merits by the counsel for the petitioner and it was stated by the counsel that he would withdraw the appeal pending before the Appellate Authority against the eviction order dated December 12, 2021. Therefore, the revision petition was disposed off on these mutually agreeable terms.
After considering these circumstances, court held that no objection taken by the counsel for the applicant from the earlier counsel would suffice since the petition was disposed off on the statements made by the counsel and only the counsel who had made a statement on 27.04.2022 would be able to say what had transpired on the said date.
Learned counsel for the applicant has contended that he has taken no objection from the earlier counsel. However, the same would not suffice inasmuch as the petition was disposed off on the statements made by the counsel and none other than the counsel who had made a statement on 27.04.2022 would be in a position to say what had transpired on the said date.
Court relied on Supreme Court's judgement in Om Parkash Vs. Suresh Kumar [2020(13) SCC 188] and T.N.Electricity Board & Anr. Vs. N. Raju Reddiar & Anr. [1997(9) SCC 736] and held that the Supreme Court of India has repeatedly deprecated the conduct of the parties of changing their counsels and filing review petitions.
Court further concluded that the parties are bound by the statements made by their counsel in Court.
The parties are bound by the statements made by their counsel in Court. It is not the case of the applicant that the counsel was not authorized to made the statement. Infact the only ground of review is that there is an error apparent on the record as the real facts were not put before this Court.
Therefore, court dismissed the application for being sans merit with exemplary costs of Rs.20,000/- to be deposited with the Chandigarh Legal Aid Society.
Case Title : Ankush Rawat v. Guru Nanak Education Trust and Another |
The biological parents, i.e. appellant Nos.3 and 4 and
alleged adoptive parents, i.e. appellant Nos.1 and 2 entered
into unregistered agreement of an 'unborn child' in the form of
adoption, jointly filed the present appeal against the judgment
and decree dated 31-5-2022 passed in G & W.C. No.9 of 2021
MFA No. 4617 of 2022
on the file of the Additional Senior Civil Judge, Udupi,
dismissing the petition filed under Sections 7 to 10 and 25 of
the Guardians and Wards Act, 1890 (for short, 'the Act').
I. Facts of the case
2. Appellant Nos.1 and 2 filed the petition before the
trial Court under the provisions of Sections 7 to 10 and 25 of
the G & W Act to grant permission to appoint them as the
adoptive parents and guardians of a minor child, by name
Inshu. Appellants Nos.3 and 4 are the biological parents of the
said child. The child was born on 26-3-2020. Since appellant
Nos.1 and 2 were childless and appellant Nos.3 and 4 were
unable to look after the child due to poverty, appellant Nos.1
and 2 adopted the child. After adoption of the child, appellant
Nos.1 and 2 have looked after raised the child for two years as
their own daughter with love and affection. The respondent-
State represented by Legal-cum-Probation Officer, District Child
Protection Unit, Udupi, lodged a complaint against appellant
Nos.3 and 4 stating that they have illegally sold the child to
appellant Nos.1 and 2. However, the only mistake committed
by appellant Nos.3 and 4, biological parents, and appellant
MFA No. 4617 of 2022
Nos.1 and 2, adoptive parents, is that due to lack of proper
legal knowledge and guidance, the procedure was not complied
with. Now, the child is in the custody of the respondents/
appellants 3 & 4. Therefore, appellant Nos.1 and 2 are seeking
to appoint them as adoptive parents of the child.
3. The order-sheet of the trial Court dated 25-11-2021
depicts that appellant Nos.3 and 4, biological parents, came up
with their vakalatnama and also filed memo to the effect that
they have no objection for the petition filed by appellant Nos.1
and 2, adoptive parents.
4. In order to prove the case of appellant Nos.1 and 2,
appellant No.1 examined herself as P.W.1 and marked four
documents as per Ex.P.1 to Ex.P.4(a). No evidence was
adduced on behalf of appellant Nos.3 and 4, who are
respondent Nos.1 and 2 before the trial Court.
5. Learned Judge of the trial Court upon careful perusal
of the pleadings has framed the following issue:
MFA No. 4617 of 2022
"Whether the petitioners are entitled for permission
to appoint them as adoptive parents and
guardian of the person of minor Inshu as
contemplated under Sections 7 to 10 and 25 of the
Guardians and Wards Act, 1890, as prayed for
them in their petition?"
6. After considering the oral and documentary evidence
on record, the learned trial Judge, by judgment and decree
dated 31-5-2022 dismissed the petition. Hence, the present
appeal is filed.
7. We have heard Smt. Haleema Ameen, learned counsel
for the appellants, Sri Vijayakumar A. Patil, learned Additional
Government Advocate, along with Sri Kiran Kumar, learned
High Court Government Pleader, for the respondent-State.
8. On 23-11-2022, this Court requested Sri Vijayakumar
A. Patil, learned Additional Government Advocate, along with
Sri Kiran Kumar, learned High Court Government Pleader, to
assist the Court with reference to the Rules made by the State
Government under Section 35 of the Juvenile Justice (Care and
Protection of Children) Act, 2015.
II. Arguments advanced by the learned counsel
for the appellants
9. Learned counsel for the appellants has contended that
the impugned judgment and decree passed by the trial Court
dismissing the petition filed by appellant Nos.1 and 2 to appoint
them as adoptive parents and guardians is erroneous and the
same cannot be sustained and is liable to be set aside. She has
further contended that the trial Court failed in appreciating the
sanctity of the fact that the adoptive parents of the child and
the biological parents had entered into an agreement with
respect of adopting the child in question even before the child
was born on 26-3-2020 and hence, the question of having sold
the child does not arise.
10. The learned counsel has further contended that
filing of F.I.R. and taking the child into their custody by the
respondent is only for their statistical purpose and not in the
interest of welfare of the child. Further, the child who was
under the love and care of appellant Nos.1 and 2 is kept under
the shelter of persons unknown to the child and this aspect will
have grave repercussions on the psychological growth of the
MFA No. 4617 of 2022
child. She has further contended that Section 17 of the Act
emphasizes on the aspect that welfare of the minor child alone
shall be considered while granting custody. She has further
contended that the petition filed by the adoptive parents is
dismissed only on the ground that the biological parents
belonging to Hindu and leanred trial court has not stated
anything in respect of applicability of Hindu Adoption and
11. The further contended that the Apex Court and
several High Courts have held that conversion to different faith
cannot be regarded as a disqualification for custody of the
minor child. Therefore, she sought to allow the appeal.
III. Arguments advanced by the learned Additional
Government Advocate for the respondent
12. Per contra, Sri Vijayakumar A. Patil, learned
Additional Government Advocate, along with Sri Kiran Kumar,
learned High Court Government Pleader, while justifying the
impugned judgment and decree passed by the trial Court, has
contended that at the first instance, the agreement was not
registered one. The appellants cannot have any agreement to
MFA No. 4617 of 2022
an unborn child and it is unknown to law. Appellant Nos.1
and 2 belong to Muslim community and appellant Nos.3 and 4
belong to Hindu community and thereby, Mohammedan Law
does not recognise adoption. He has further contended that it
is the duty of the Court to consider the welfare of the child, if
really appellant Nos.3 and 4, are being biological parents, were
unable to take care of the child. Very strangely, appellant
Nos.3 and 4, biological parents, have filed memo through their
counsel stating that they have no objection to the petition filed
by appellant Nos.1 and 2, which raises the doubt of adoption
and thereby, the 3rd respondent was justified in lodging the
complaint before the jurisdictional Police that the child has been
13. He has further contended that sub-section (2) of
Section 17 of the Act provides that 'in considering what will be
for the welfare of the minor, the Court shall have regard to the
age, sex and religion of the minor, the character and capacity
of the proposed guardian and his nearness of kin to the minor,
the wishes, if any, of a deceased parent, and any existing or
previous relations of the proposed guardian with the minor or
MFA No. 4617 of 2022
his property'. Admittedly, the appellant Nos.3 & 4 are the
biological parents being Hindus and appellant Nos.1 & 2 are the
adoptive parents being Muslims, have entered into an
unregistered agreement (Ex.P.1) of an unborn child in the form
of adoption which creates a doubt. Therefore, he sought to
dismiss the appeal.
14. In view of the aforesaid rival contentions, the only
point that would arise for our consideration in the appeal is:
Whether appellant Nos.1 and 2, adoptive parents,
and appellant Nos.3 and 4, biological parents,
have made out a case to interfere with the
judgment and decree passed by the trial Court?
15. We have given our anxious consideration to the
arguments advanced by learned counsel for the parties and
perused the entire material on record carefully.
16. It is undisputed fact that appellant Nos.1 and 2
belong to Muslim community and appellant Nos.3 and 4 belong
to Hindu community. It is the case of appellant Nos.1 and 2
MFA No. 4617 of 2022
that on 21-3-2020, they have entered into agreement with
appellant Nos.3 and 4 that post delivery of the child, they will
take care of the child and raise the child. In order to verify the
veracity, we have perused the agreement entered between
them. In the agreement for adoption dated 21-3-2020, it is
mentioned that the first party, i.e. appellant Nos.1 and 2 have
adopted the child of the second party, i.e. appellant Nos.3 and
4 and they will raise the child with honour and dignity. As on
the date of the agreement, the child was in the womb of
appellant No.4 and the child was born on 26-3-2020, i.e. after
five days of the agreement entered into between the parties.
Thereby, both parties entered into agreement in respect of an
"unborn child, which is unknown to law". Condition No.3 in the
agreement is that, the second party will not claim any money
from the first party. Thereby, this clearly depicts that the child
was given in adoption for money. It is also relevant to point
out at this stage that on the basis of the complaint lodged by
the 3rd respondent, Kota Police registered a case against the
appellants and two others, namely Balakrishna and Reshma, in
Crime No.104 of 2021 for the offences punishable under
Sections 80, 81 and 87 of the Juvenile Justice (Care and
MFA No. 4617 of 2022
Protection of Children) Act, 2015. Later, it was transferred to
Karkala Town Police Station and the same was numbered as
Crime No.72 of 2021 for the offences punishable under
Sections 80 and 81 of the Juvenile Justice (Care and Protection
of Children) Act, 2015 and under Sections 465, 468 and 420 of
the Indian Penal Code, 1860. The jurisdictional Police, after
holding detailed enquiry, filed charge-sheet on 14-6-2022
before the Principal Civil Judge and Judicial Magistrate First
17. A careful perusal of the agreement entered into
between the parties clearly depicts that appellant Nos.1 and 2
belong to Muslim community and appellant Nos.3 and 4 belong
to Hindu community and thereby, the Mohammedan Law does
not recognise adoption. Our view is fortified by the dictum of
the Hon'ble Supreme Court in the case of DAGADABAI
(DEAD) BY LEGAL REPRESENTATIVES v. ABBAS ALIAS
GULAB RUSTUM PINJARI reported in (2017) 13 SCC 705,
wherein at paragraph No.20, it has held as under:
"20. Fifth, the defendant having failed to prove
that he was the adopted son of Rustum, had no
MFA No. 4617 of 2022
option but to suffer the decree of dispossession
from the suit land. It is a settled principle of
Mohammedan Law that Mohammedan Law does not
recognize adoption (see-Section 347 of Mulla
Principles of Mahomedan Law, 20th Edition page
18. It is shocking that an agreement is entered into
between the parties in respect of an "unborn child". It is for
the District Child Protection Unit to take the responsibility of all
such cases. It is well settled that 'an unborn child has a life of
its own and rights of its own and the rights of unborn are
recognised by law. No doubt, only if the unborn can be treated
as a person, the right to life of the unborn can be equated with
the fundamental right of the mother guaranteed under Article
21 of the Constitution. True, an unborn is not a natural person,
but it is well known that after six weeks, life is infused into the
embryo, thus converting embryo into foetus and once an
embryo evolves into a foetus, the heartbeat starts. In other
words, the unborn has life from the stage it transforms into
foetus. If the unborn has life, though it is not a natural person,
it can certainly be considered as a person within the meaning of
MFA No. 4617 of 2022
Article 21 of the Constitution, for there is absolutely no reason
to treat an unborn child differently from a born child. In other
words, the right to life of an unborn shall also be considered as
one falling within the scope of Article 21 of the Constitution of
India'. Admittedly, in the present case, as on the date of
agreement, i.e. on 21-3-2020, appellant No.4 was nine months
pregnant and she delivered the child on 26-3-2020, i.e. after
five days of the agreement, thereby the child has a every right
to lead life with dignity and honour as contemplated under
Article 21 of the Constitution of India.
19. Based on the agreement, appellant Nos.3 and 4 filed
the petition before the trial Court for custody. In all cases,
where a Court is called upon to adjudicate the question as to
whether permission shall be granted to a pregnant woman for
terminating her pregnancy on a plea of infringement of her
fundamental right to life guaranteed under Article 21 of the
Constitution, the Court has to make a balance between the
rights of the mother and the rights of the unborn. The fact
remains that as on the date of agreement entered into between
the parties, appellant No.4 was in verge of completing nine
MFA No. 4617 of 2022
months of her pregnancy and thereby, the appellants, both
adoptive parents and biological parents, have violated the
rights of the child guaranteed under the provisions of Article 21
of the Constitution of India. Considering the peculiar facts and
circumstances of the case, very agreement for adoption on 21-
3-2020 entered between the parties is invalid document and
the same is not permissible under the principles of
Mohammedan Law. As already stated supra, the 3rd
respondent rightly lodged the complaint to the jurisdictional
Police and in turn, they registered a case and now it is pending
on the file of the Principal Civil Judge and Judicial Magistrate
First Class, Karkala. Thereby, we resist to observe anything at
this stage that it is for the concerned Court to proceed to a
logical end in accordance with law.
20. The leaned trial Judge, while considering Ex.P.1 has
recorded a finding that agreement for adoption does not depicts
the welfare of the minor child, and rightly dismissed the
petition in accordance with law. It is relevant to observe at this
stage that, if really appellant Nos.3 and 4, biological parents,
came forward to give the child for adoption due to poverty,
MFA No. 4617 of 2022
they could have surrendered the child to the concerned
authority for the welfare of the child. Even if that was not
possible, they could have taken care by sending the child to
Government Educational institutions and now, the Government
has introduced various schemes for their day-to-day essential
commodities, thereby the contention of the learned counsel for
appellants that appellant Nos.3 and 4 entered into agreement
for adoption of their child to appellant Nos.1 and 2 due to
poverty cannot be accepted. The Government has introduced
many schemes to overcome, or to streamline the poverty. If
they have self-confidence and respect, they can lead family by
taking loan from Banks and instead of that, appellant Nos.3 and
4 have sold the child in the name of adoption, which cannot be
21. Even under Section 35 of the Juvenile Justice (Care
and Protection of Children) Act, 2015, provides that (1) a
parent or guardian, who for physical, emotional and social
factors beyond their control, wishes to surrender a child, shall
produce the child before the Committee; (2) if, after prescribed
process of inquiry and counseling, the Committee is satisfied, a
MFA No. 4617 of 2022
surrender deed shall be executed by the parent or guardian, as
the case may be, before the Committee, and (3) the parents or
guardian who surrendered the child, shall be given two months
time to reconsider their decision and in the intervening period,
the Committee shall either allow, after due inquiry, the child to
be with the parents or guardian under supervision, or place the
child in a Specialised Adoption Agency, if he or she is below six
years of age, or a children's home if he is above six years.
22. When the State Government is providing so many
benefits for the welfare of the Society, that too, for the people
below the poverty and Section 35 of the Juvenile Justice (Care
and Protection of Children) Act, 2015, clearly explains
regarding surrender of the child, the agreement entered into
between appellant Nos.1 and 2 and appellant Nos.3 and 4
cannot be sustained.
23. Admittedly, from 20-5-2021, the child is in the
welfare custody of Krishna Anugraha Centre, Udupi, and it is
the recognised Centre of the State Government for welfare of
the child. When we summoned the appellants before this
MFA No. 4617 of 2022
Court, appellant Nos.3 and 4, biological parents, expressed
their willingness to take back their child along with them. If it
is so, it is for them to approach the Child Welfare Committee
and the Child Welfare Committee to take appropriate steps in
accordance with law.
24. For the reasons stated above, the point raised in the
present appeal is answered in the negative holding that the
appellants have not made out a case to interfere with the
judgment and decree passed by the trial Court.
25. In view of the above, we pass the following
i. The appeal, being devoid of merits, is hereby
ii. The judgment and decree dated 31-5-2022 passed
in G & W.C. No.9 of 2021 on the file of the
Additional Senior Civil Judge, Udupi, is hereby
MFA No. 4617 of 2022
iii. It is needless to observe that appellant Nos.3 and 4,
biological parents, to approach the Child Welfare
Committee, if they really want their child back and
it is for the Child Welfare Committee to take
appropriate steps and pass orders in accordance
iv. If the Child Welfare Committee comes to the
conclusion that after considering all the pros and
cons in handing over the child to appellant Nos.3
and 4, biological parents, then the jurisdictional
Police is directed to monitor appellant Nos.3 and 4
and so that the child is not sold to anyone and
ensure that A3 and A4 shall take care of the
paramount interest of the child.
The assistance rendered by Sri Vijayakumar A. Patil,
along with Sri Kiran Kumar, learned High Court Government
Pleader, Smt. Haleema Ameen, learned counsel for the
appellants, Sri M.V. Chadrakanth, IPS, Director, Directorate of
MFA No. 4617 of 2022
Officer, and Sri Damodara K.B., Sub-Inspector of Police, are
highly appreciated and placed on record. | The Karnataka High Court has said that Mohammedan Law does not recognise adoption and thus an agreement entered into between a Hindu couple to give their unborn child in adoption to a Muslim couple is not allowed.
A division bench of Justice B Veerappa and Justice K. S. Hemalekha dismissed a petition filed by the couples challenging the judgment of Additional Senior Civil Judge dismissing the petition filed under Sections 7 to 10 and 25 of the Guardians and Wards Act, 1890, by them.
The bench said, "A careful perusal of the agreement entered into between the parties clearly depicts that appellant Nos.1 and 2 belong to Muslim community and appellant Nos.3 and 4 belong to Hindu community and thereby, the Mohammedan Law does not recognise adoption."
Case Details:
Appellant Nos.1 and 2 filed the petition before the trial Court under the provisions of Sections 7 to 10 and 25 of the G & W Act to grant permission to appoint them as the adoptive parents and guardians of a minor child.
Appellants Nos.3 and 4 are the biological parents of the said child. The child was born on 26-3-2020. Since appellant Nos.1 and 2 were childless and appellant Nos.3 and 4 were unable to look after the child due to poverty, appellant Nos.1 and 2 adopted the child. After adoption of the child, appellant Nos.1 and 2 looked after and raised the child for two years as their own daughter.
The respondent State through District Child Protection Unit lodged a complaint against appellant Nos.3 and 4 stating that they have illegally sold the child to appellant Nos.1 and 2. However, the only mistake committed by appellant Nos.3 and 4, biological parents, and appellant Nos.1 and 2, adoptive parents, is that due to lack of proper legal knowledge and guidance, the procedure was not complied with. Now, the child is in the custody of the respondents/ appellants 3 & 4. Therefore, appellant Nos.1 and 2 sought to be appointed as adoptive parents of the child. Biological parents filed a memo that they have no objection for the petition filed by adoptive parents.
Findings:
The bench referred to the agreement entered between the couples and said,
As on the date of the agreement, the child was in the womb of appellant No.4 and the child was born on 26-3-2020, i.e. after five days of the agreement entered into between the parties. Thereby, both parties entered into agreement in respect of an "unborn child, which is unknown to law".
Further the bench noted that condition No.3 in the agreement is that the second party will not claim any money from the first party. Thereby, this clearly depicts that the child was given in adoption for money. It is also relevant to point out at this stage that on the basis of the complaint lodged by the 3rd respondent, Kota Police registered a case against the appellants and two others, namely Balakrishna and Reshma, under Sections 80, 81 and 87 of the Juvenile Justice (Care and Protection of Children) Act, 2015. Later, it was transferred to Karkala Town Police Station, which filed a charge-sheet on 14-6-2022 before the Principal Civil Judge and Judicial Magistrate First Class, Karkala.
Expressing shock that an agreement was entered between the parties in respect of an "unborn child", the bench observed,
"It is well settled that 'an unborn child has a life of its own and rights of its own and the rights of the unborn are recognised by law. No doubt, only if the unborn can be treated as a person, the right to life of the unborn can be equated with the fundamental right of the mother guaranteed under Article 21 of the Constitution."
It added, "If the unborn has life, though it is not a natural person, it can certainly be considered as a person within the meaning of Article 21 of the Constitution, for there is absolutely no reason to treat an unborn child differently from a born child. In other words, the right to life of an unborn shall also be considered as one falling within the scope of Article 21 of the Constitution of India'."
Following which it held,
"As on the date of agreement, i.e. on 21-3-2020, appellant No.4 was nine months pregnant and she delivered the child on 26-3-2020, i.e. after five days of the agreement, thereby the child has a every right to lead life with dignity and honour as contemplated under Article 21 of the Constitution of India."
The bench held,
"As on the date of agreement entered into between the parties, appellant No.4 was in verge of completing nine months of her pregnancy and thereby, the appellants, both adoptive parents and biological parents, have violated the rights of the child guaranteed under the provisions of Article 21 of the Constitution of India."
Upholding the order of the trial court the bench opined, "If really appellant Nos.3 and 4, biological parents, came forward to give the child for adoption due to poverty, they could have surrendered the child to the concerned authority for the welfare of the child. Even if that was not possible, they could have taken care by sending the child to Government Educational institutions and now, the Government has introduced various schemes for their day-to-day essential commodities, thereby the contention of the learned counsel for appellants that appellant Nos.3 and 4 entered into agreement for adoption of their child to appellant Nos.1 and 2 due to poverty cannot be accepted."
It added "The Government has introduced many schemes to overcome, or to streamline, poverty. If they have self-confidence and respect, they can lead a family by taking a loan from Banks and instead of that, appellant Nos.3 and 4 have sold the child in the name of adoption, which cannot be tolerated."
Reference was also made to Section 35 of the Juvenile Justice (Care and Protection of Children) Act, 2015, which provides for voluntary surrender of the child by the parents or guardian.
The court dismissed the appeal and said "Appellant Nos.3 and 4, biological parents, to approach the Child Welfare Committee, if they really want their child back and it is for the Child Welfare Committee to take appropriate steps and pass orders in accordance with law."
Further, "If the Child Welfare Committee comes to the conclusion that after considering all the pros and cons in handing over the child to appellant Nos.3 and 4, biological parents, then the jurisdictional Police is directed to monitor appellant Nos.3 and 4 and so that the child is not sold to anyone and ensure that A3 and A4 shall take care of the paramount interest of the child."
Case Title: Shahista & Others v. The State.
Case No: MISCELLANEOUS FIRST APPEAL NO.4617 OF 2022
Date of Order: 30-11-2022
Appearance: Advocate Haleema Ameen for appellants.
AGA Vijaykumar A Patil a/w Kiran Kumar HCGP for respondents. |
The petitioner has filed the present petition seeking
quashment of Annexure P/1 and P/2 whereby she has been
denied for compassionate appointment as well as ex-gratia
/compensation by the respondents. The petitioner is also
claiming gratuity and pension w.e.f. 1998.
(2) Facts of the case in short are as under:
(a). The husband of the petitioner, Shri Ashok Dhaigude
left the house on 19.12.1998 to go to bank but he went missing.
In the year 1998 he was working as peon in the State Bank of
Indore, which latter on merged into State Bank of India. The
petitioner gave information about his missing to the Police as
well as bank. When he did not return, after seven years, the
petitioner submitted an application for compassionate
appointment and payment of all retiral dues. Vide letter dated
12.01.2006, the Head office of the Bank has treated Ashok
Dhaigude voluntarily retired w.e.f. 20.10.1998 on account of his
missing and directed Regional Office, Indore of SBI to
complete necessary formalities for settlement of terminal dues
in favour of the petitioner being a nominee viz payment of
provident fund, gratuity and ex-gratia compensation. A
Smt. Meena Dhaigude V/s. Maha Pravandhak State Bank of India.
declaration or indemnity bond was also directed to be obtained
from petitioner in case Ashok Dhaigude joins the duties and
claims the provident fund then entire amount would be
recovered from her or said amount would be adjusted in the
retiral benefit granted to the petitioner. According to the
petitioner the respondents /bank have calculated and paid all
benefit like gratuity, EPF treating her husband to be dead on
21.10.2005 whereas, he had been treated voluntarily retired
from services 21.10.1998.
(b). The petitioner has been denied for compassionate
appointment because the new policy came into force w.e.f.
10.01.2006 and in which there is provision of ex-gratia payment
in lieu of compassionate appointment. According to the
petitioner since her husband had been treated dead in the year
2005 and retiral benefit were paid, then the policy came into
2006 would not apply in her case. The petitioner submitted
representation for compassionate appointment on 06.06.2008,
which was replied by the respondent vide letter dated
19.09.2008 that arrears of family pension from 22.10.2005 to
31.08.2008 Rs.1,47,9221.80/- deposited in the account.
(c). The petitioner submitted an affidavit that her
husband went missing on 21.10.1998 and he had been treated to
be dead w.e.f. 20.10.2005, she has not remarried so far. She
again submitted a representation on 05.12.2008 claiming arrears
of pension from 21.10.1998 till 21.10.2005 followed by
Smt. Meena Dhaigude V/s. Maha Pravandhak State Bank of India.
representation by representation dated 15.12.2010. When no
action was taken, then petitioner filed present petition before
(d). After notice, the respondents have filed reply
mentioning the undisputed facts of the petition in para, which
2. That, the undisputed facts of this petition are as under:
(i). That, the said Shri Ashok Dhaigude (the said ex-
employee) absented from the duties in the erstwhile bank from
20.10.1998 and as such, the erstwhile bank treated him to have
voluntarily retired from service w.e.f. 20.10.2005, in terms of
the relevant provisions of the Bipartite Settlement applicable to
(ii). That, having treated the said ex-employee as '
voluntarily retired' the erstwhile bank has paid his gratuity/PF
to the petitioner against indemnity bond, copies placed as the
Annexure R/1 and R/2.
(iii). That, the petitioner applied for family pension after 7
years from missing of the said ex-employee and as such she is
also being paid family pension with effect from 2005 (page 17
and 18 of Annexure P/4).
(iv). That, the petitioner has been declined compassionate
appointment on the ground that the scheme of compassionate
appointment was discontinued in the erstwhile bank with effect
from 10.01.2006 whereas the petitioner applied for the said
appointment to the erstwhile bank on 30.09.2007 i.e. after the
said scheme was discontinued/abolished.
(v). That, the petitioner's demand for payment of family
pension from 20.10.1998 (i.e. from the date of disappearance of
her husband), instead from 21.10.2005 (i.e. the date when 7
years of his disappearance were completed), has also been
declined.
(e). In para 3 the respondents have given pointwise reply
about denial of compassionate appointment, payment of ex-
Smt. Meena Dhaigude V/s. Maha Pravandhak State Bank of India.
gratia and denial of payment gratuity and pension from 1998,
3. That, the disputes involved in the present petition are:
A. Dispute regarding compassionate appointment
(i) That, the petitioner has impugned the bank's decision of
refusing to give her compassionate appointment. The
petitioner's contention is that she was eligible for
compassionate appointment on 21.10.2005 i.e. the date when 7
years of missing of her husband were over and as the scheme
for compassionate appointment was discontinued with effect
from 10.01.2006, she should be given the said appointment
irrespective of the fact as to when she applied.
(ii) That, the bank's contention is that since the relative
scheme was discontinued from 10.01.2006 and she had applied
for the said appointment for the first time through her
advocate's notice dated 03.09.2007, copy placed as the
Annexure P/3, she is not eligible for the said compassionate
appointment. The petitioner has therefore impugned the bank's
relative communication to her which are placed at the
Annexure P/1 and P/2.
(iii) That, in support of its foregoing contention, the bank
relies on the case reported at 2010 (3) MPLJ 213 (Bank of
Maharashtra Vs Manoj Kumar Dehariya) wherein this Hon'ble
Court has held that compassionate appointment is not a vested
right and when grant of such appointment is governed by the
Rules and Policies prevailing in an establishment, then
consideration as per Rules is required to be made and
consideration on the basis of a policy which has been given up
by the employer and which has no application at that point of
time, cannot be insisted upon.
(iv) That, in the light of the aforesaid judgment of this
Hon'ble Court, it is obvious that the petitioner is not entitled for
compassionate appointment and as such she has rightly been
declined the said appointment on the ground that when she
applied therefore, the relative scheme in the erstwhile bank had
been abolished/discontinued.
B. Dispute regarding payment of Ex-gratia amount in lieu
of Compassionate Appointment.
(i). That, the petitioner has although never made any
application for payment of 'Ex-gratia Lumpsum Amount in lieu
of Compassionate Appointment' (hereinafter referred to as
Smt. Meena Dhaigude V/s. Maha Pravandhak State Bank of India.
the “ ex-gratia payment”), she has falsely alleged in the
petition that the bank's decision for not paying the said ex-
gratia payment/compensation to her, is illegal. As she has never
applied for the said ex-gratia payment, there is no question of
declining the same and as such, the aforesaid allegation made
in the petition is absolutely false.
(ii). That, the bank also submits that the petitioner cannot
make two demands simultaneously. Either she should ask for
compassionate appointment or for ex-gratia lumpsump amount
in lieu of compassionate appointment. However, a bare reading
of the erstwhile bank's scheme for the said ex-gratia payment,
placed as Annexure P/6, would reveal that (a) as per its clause
No. 15(v), the said scheme is not applicable to the families of
missing persons and only the Board of Directors of the
erstwhile bank was entrusted to consider such cases (b) the said
clause 15(v) also stipulates that the Bank's Board of Directors
can consider such a case if the employees missing for more
than 7 years, has been declared ' dead' by the Court (c) as per
clause 11 of the said Scheme, the time limit for submitting the
relative application was only 6 months of the date of death.
(iii). That, in this case, since 21.10.2005, the 7 years of
missing of the petitioner's husband (the said ex-employee) were
over and he was presumed as 'dead' as on 21.10.2005, the
petitioner is now not entitled to make an application for
payment of the said ex-gratia amount in view of the said clause
11 of the said Scheme. It is also noteworthy that the erstwhile
bank is no more in existence.
In view of the foregoing, at the outset, the petitioner is not
eligible for the said ex-gratia payment also.
C. Disputes regarding payment of Gratuity and Pension
from 1998.
(i). That, the petitioner has also prayed for a relief that the
respondent bank should be directed to pay the gratuity and
pension from the year 1998. To substantiate, the petitioner has
averred that since her husband (the said ex-employee) has been
treated to have retired with effect from 21.10.1998, she is
eligible for benefits of gratuity and pension from 21.10.1998
instead from 21.10.2005 when 7 years of missing of her
husband (the said ex-employee) were over and he was
presumed to be 'dead'.
(ii). That, the bank submits that the petitioner is getting
family pension for which she became eligible only after her
husband (the said ex-employee) was presumed to be 'dead'. As
the said presumption could be made only on 21.10.2005 when
Smt. Meena Dhaigude V/s. Maha Pravandhak State Bank of India.
the period of 7years of missing of her husband (the said ex-
employee) was completed, it is obvious that the petitioner's
demand that she should be paid the said pension from the date
of treating her husband as 'voluntarily retired' and not from the
date when he was presumed as 'dead', does not have any merit.
(iii). That, so far as payment of gratuity from the date the said
ex-employee has been treated to have 'voluntarily retired' is
concerned, it is submitted that the said erstwhile bank had
“State Bank of Indore (Payment of Gratuity to Employees)
Regulations, 1975. In its Rule 13 read with Rule 12(1) (V), the
method of calculation of the amount of gratuity inter-alia to an
employee voluntarily retired after completion of 10 years
service, has been given. As the petitioner has been paid the
amount of gratuity of the said ex-employee from the year 2005
instead from the year 1998. The excerpt of the said Rule 13 and
Rule 12 of the said Regulations are placed as the Annexure
P/4. It is also submitted that the said Regulations being legal
fiction, have got the binding effect.
(3). I have heard learned counsel for the parties and perused
the record.
(4). As per the undisputed facts of this case, the husband of the
petitioner Shri Ashok Dhaigude remained absent in the
erstwhile bank from 20.10.1998 , hence a notice was issued to
him to join the duties. The petitioner and respondents have
accepted that he did not return to home or bank therefore he has
been treated as a dead person w.e.f. 20.10.2005. According to
the respondents , the petitioner applied for grant of family
pension after seven years of the missing of her husband,
therefore, they have paid the pension and other admissible
benefits to her from the year 2005. The petitioner has been
denied compassionate appointment in view of the scheme came
into force w.e.f. 10.01.2006 as she applied for a compassionate
appointment on 03.09.2007. Despite the denial of the
Smt. Meena Dhaigude V/s. Maha Pravandhak State Bank of India.
compassionate appointment, respondents have also denied the
ex-gratia compensation by placing reliance clause No.15(v) of
the scheme because the same does not apply to the family of
missing person and the time limit for submitting the relative
application was only 6 months of the date of death. Since the
seven years of missing of petitioner's husband had been passed
on 21.10.2005 and he was presumed as dead as on 21.10.2005
hence, the petitioner is not entitled to the ex-gratia
compensation in view of clause 11 of the scheme.
(5). According to respondents since the petitioner's husband
was presumed to be dead on 21.10.2005 i.e. after seven years of
the missing there she became entitled to payment of pension and
gratuity from the said date. It is further submitted by the
respondent that the petitioner has been paid gratuity amount by
adopting the method of calculation provided under rule 12 (1)
(v) and read with Rule 13 of State Bank of Indore (Payment of
Gratuity to Employees), Regulations, 1975 w.e.f. 2005.
(6). The petitioner is a widow of a class IV employee, and she
has somehow survived with two minor children after her
husband left them at the mercy of God. She has submitted the
representation that she be provided with a temporary job or
engaged as a daily wager so that she could maintain her
children. I have never come across any such case in which,
such a harsh approach has been adopted by an employer like
respondents. That thousands of employees work in such a big
Smt. Meena Dhaigude V/s. Maha Pravandhak State Bank of India.
organization like SBI and it is least expected from them to have
behaved like the model employer.
(7). That husband of the petitioner went missing 19.12.1998,
when he did not join the duties from 20.10.1998, the Branch
Manager sent a letter to the house of the petitioner on
21.01.1999 calling upon him to join the duties within 30 days
from the date of receipt of notice failing which he would be
treated as voluntarily retired from the services. The petitioner
submitted a reply that since 21.10.1998 she has no information
about her husband as he has left the house without leaving any
note. She gave information to the police about missing and
requested respondents for not taking any action. She submitted a
representation on 17.05.1999 that it is becoming very difficult
for her to survive with two minor sons aged about 14 years and
12 years, her husband had served the bank for 22 years,
therefore she may be engaged temporary or daily wages in place
of her husband so that she would maintain her family but no
heed was given to the aforesaid representation. Vide letter dated
11.11.2005, the Superintendent of Police Indore informed the
petitioner that they could not find her husband and as per law
since seven years had been over hence he was treated as dead.
That on 06.06.2008 the petitioner submitted a representation
that her husband be now treated dead on 20.10.2005, hence, her
claim for compassionate appointment be reconsidered. The
Smt. Meena Dhaigude V/s. Maha Pravandhak State Bank of India.
respondents have settled her pension payable from 20.10.2005
and paid the gratuity amount to her.
(8). The respondents have wrongly denied the compassionate
appointment to the petitioner on the ground that, the new policy
has come into force w.e.f. 01.01.2006. As per clause 3 of the
policy this scheme will replace all existing compassionate
appointment schemes and no request for compassionate
appointment shall be entertained or considered by the bank
under any circumstances with effect from 10.01.2006. Clause 4
provides the payment of ex-gratia lumpsum amount in case of
an employee dying in harness and employees seeking premature
retirement due to incapacitation before reaching the age of 55
years. The Apex Court in the case of Canara Bank & another
Vs. M. Mahesh Kumar reported in 2015 (7) SCC 412 has held
that an application for compassionate appointment should be
considered as per the policy prevailing at the time of death of
the employee. Admittedly, in this case, the husband of the
petitioner was treated to be dead w.e.f. 20.10.2005 and the new
policy came into force w.e.f. 10.01.2006, hence, the respondents
ought to have considered the claim of the petitioner for
compassionate appointment policy prevailing prior to
10.01.2006 or at the time of death. Hence, respondents are
directed to consider the claim of the petitioner for a
compassionate appointment. Now due to the passage of time her
sons have become major now hence if she submits an affidavit
Smt. Meena Dhaigude V/s. Maha Pravandhak State Bank of India.
to the effect then a claim of compassionate appointment be
considered for her any of the sons .
(9). So far payment of gratuity and passionary benefits are
concerned same are liable to be released after the death of an
employee or attaining the age of superannuation or voluntarily
resigning from the services of the bank after 10 years completed
from the service. Since the husband of the petitioner was treated
to be dead on 20.10.2005 and held that the petitioner is entitled
to get a compassionate appointment on a policy prevailing on
20.10.2005, therefore, all the benefits are liable to be paid
treating the petitioner's husband dead on 20.10.2005.
(10). There is no such order has been placed on record by
respondents by which husband of the petitioner has been treated
as voluntarily retired on 20.10.1998. That only in the letter dated
12.01.2006, Head Office of SBI has directed Regional Office to
annex the order treating the petitioner's husband voluntarily
retired on 20.10.1998 for submitting the claim of provident fund
and ex-gratia payment, therefore there is no such order on
record, hence, all the claims of the petitioner are liable to be
considered treating him dead w.e.f. 20.10.2005 and accordingly,
all the retiral benefits are liable to be calculated and be paid to
(11). So far as payment of ex-gratia compensation is concerned,
the bank has rejected the claim of the petitioner on the ground
of delay in view of policy dated 24.01.2006 which came into
Smt. Meena Dhaigude V/s. Maha Pravandhak State Bank of India.
force w.e.f.10.01.2006 but it has been held in the above paras
that new policy will not apply in case of the petitioner,
therefore, the question of ex-gratia compensation is not liable to
be considered. However, it is observed that there was no delay
in submission of application for ex-gratia compensation because
the husband of the petitioner was treated dead on 21.10.2005
and policy came into force w.e.f. 10.01.2006 and representations
submitted by the petitioner were already pending for grant of
compassionate appointment.
(12). In my considered opinion it is a fit case in which
exemplary cost should be imposed on the respondents for their
inhuman approach. The way Respondents has dealt with the
issue of the widow and children of class IV employee it is liable
to denounce with the strong words deprecated. The husband of
the petitioner was a class-IV employee before he went missing
he had served 22 years with the respondents. It is equivalent to
the case of dying in harshness for the family. The petitioner had
to work as a domestic maid in the house of others to survive
herself as well as her sons. She requested respondents to
provide the temporary appointment or daily wager so that she
could maintain the family. It is not a case of the petitioner that
she was not qualified for an appointment for a class IV
employee or as a daily wager. If an employee went missing and
not coming for duties months together then it is the case dying
in harshness. The respondents have treated him voluntarily
Smt. Meena Dhaigude V/s. Maha Pravandhak State Bank of India.
retired w.e.f. 20.10.1998 then they ought to have started paying
pension from 1998 to the petitioner and other retiral benefits to
ensure their survival. They kept the matter pending for seven
years to get a declaration that her husband is no more without
considering that how the family of the petitioner would survive
for seven years. An equally facet of right to life is the right to
livelihood because no person can live without the means of
living, that is the means of livelihood. The right to live a
dignified life has been taken by the respondents in this case.
Respondents could have paid her some monthly amount like
half of the salary payable to her missing husband because they
were in control of all retiral dues of her husband with them,
therefore, the approach of bank was inhuman towards the
family of class-IV employee.
(13). This petition is pending since 2012 before this Court. The
petitioner has also drawn attention to this Court towards the
bank statements which reflects that w.e.f.12.10.2012 the pension
has been reduced from Rs.6499/- and Rs. 6869/- to Rs. 3583/-
and Rs. 3969/- and there is no reply to the said reduction in this
petition. There is no reason as to why her pension has been
reduced and since 2012 her family is surviving with only Rs.
3500/- per month. This petition deserves to be allowed and is
accordingly allowed with costs of Rs. 2,00,000/- (Rupees Two
Lac only) payable to the petitioner.
The petitioner is entitled for the following reliefs :-
Smt. Meena Dhaigude V/s. Maha Pravandhak State Bank of India.
(i) Respondents are directed to consider the claim of the
petitioner for compassionate appointment under the policy
prevailing at the time of death of husband of the
petitioner. In alternate, if she submits an affidavit in
favour of her sons then the claim of compassionate
appointment be considered for any of her sons;
(ii) All the benefits admissible under rules after the
death of petitioner’s husband are liable to be paid treating
(iii) Respondents are directed to examine as how the
family pension payable to the petitioner has been reduced.
The family pension admissible to the petitioner as per
(iv) Respondents are directed to pay costs of Rs.
2,00,000/- (Rupees Two Lakhs only) to the petitioner
forthwith.
Certified copy as per Rules. | The Indore Bench of the Madhya Pradesh High Court has imposed exemplary cost of Rs. 2 lakh on the State Bank of India (SBI) for adopting a very 'inhuman approach' while dealing with a widow woman's application seeking appointment to the Bank on compassionate grounds. The cost is made payable to the woman (Petitioner)."I have never come across any such case in which, such a harsh approach has...
The Indore Bench of the Madhya Pradesh High Court has imposed exemplary cost of Rs. 2 lakh on the State Bank of India (SBI) for adopting a very 'inhuman approach' while dealing with a widow woman's application seeking appointment to the Bank on compassionate grounds. The cost is made payable to the woman (Petitioner).
"I have never come across any such case in which, such a harsh approach has been adopted by an employer like respondents. That thousands of employees work in such a big organization like SBI and it is least expected from them to have behaved like the model employer," Justice Vivek Rusia observed at the outset.
Meena Dhaigude had approached the High Court in 2012, challenging denial of compassionate appointment as well as ex-gratia/ compensation by the General Manager and Chief Manager of SBI. Her case was that her husband, a class IV employee, went missing after having served the bank for 22 years. Seven years later, the petitioner moved an application for compassionate employment and payment of all retiral dues at the bank. Whereas the bank had treated the Petitioner's husband as voluntarily retired from services 21.10.1998, in response to her application the Bank paid all benefits benefit like gratuity, EPF treating her husband to be dead on 21.10.2005.
Consequently, the petitioner had to work as a domestic maid for survival, despite being qualified for an appointment for a class IV employee.
In this backdrop, the Court noted,
"If an employee went missing and not coming for duties months together then it is the case dying in harness. The respondents have treated him voluntarily retired w.e.f. 20.10.1998 then they ought to have started paying pension from 1998 to the petitioner and other retiral benefits to ensure their survival. They kept the matter pending for seven years to get a declaration that her husband is no more without considering that how the family of the petitioner would survive for seven years. An equally facet of right to life is the right to livelihood because no person can live without the means of living, that is the means of livelihood. The right to live a dignified life has been taken by the respondents in this case. Respondents could have paid her some monthly amount like half of the salary payable to her missing husband because they were in control of all retiral dues of her husband with them, therefore, the approach of bank was inhuman towards the family of class-IV employee."
Significantly, the benefits credited to the Petitioner were based on a new policy which came into effect in 2006. This new policy contemplates ex-gratia payment instead of compassionate appointment.
The petitioner, represented by Advocate Anand Agarwal, argued that since the husband had been treated dead in the year 2005 and retiral benefit were paid, the policy that came into effect in2006 would not apply in her case.
The Court affirmed the argument by citing Canara Bank & Others v. M. Mahesh & Anr (2015), where it was held that an application for compassionate appointment should be considered as per the policy prevailing at the time of death of the employee.
It further criticized the approach taken by the bank in denying compassionate appointment to the Petitioner and disposed the matter with following remarks,
"In my considered opinion it is a fit case in which exemplary cost should be imposed on the respondents for their inhuman approach. The way Respondents has dealt with the issue of the widow and children of class IV employee it is liable to denounce with the strong words deprecated...This petition deserves to be allowed and is accordingly allowed with costs of Rs. 2,00,000/- (Rupees Two Lac only) payable to the petitioner."
Case Title: Smt. Meena Dhaigude v. Maha Pravandhak State Bank of India
Read Order |
1. These are writ petitions which are being disposed of by a common
order.
2. The petitioner in the above writ petitions has sought quashing of the
a. FIR No. 01/2012 dated 10.01.2012 registered at PS Anti Corruption
Branch under Section 13(1)(d)/13(2) of the Prevention of Corruption
Act, 1988 (hereinafter “PC Act”) and Section 420/120B Indian Penal
Code, 1860 (hereinafter “IPC”) and proceedings emanating therefrom
in W.P.(CRL) 786/2021;
b. FIR No. 02/2012 dated 10.01.2012 registered at PS Anti Corruption
Branch under Section 13(1)(d)/13(2) of the PC Act and Section
420/468/471/120B IPC and proceedings emanating therefrom in
c. FIR No. 04/2013 dated 16.02.2013 registered at PS Anti Corruption
Branch under Section 13(1)(d)/13(2) of the PC Act and Section
420/468/471/120B IPC and proceedings emanating therefrom in
3. The factual matrix of the case as per the petitioner is as under:
a. The Petitioner had a career of around 36 years as a medical officer
under the Govt. of Arunachal Pradesh, the Assam Rifles, and finally
the Central Govt. Health Services.
b. The petitioner was transferred to Delhi Government and was posted as
Digitally Signed byAMIT W.P.(CRL) 781/2021 & other connected matters Page 2 of 25
Director, Health Services (“DHS”) on 26.08.2009. Subsequently, he
was posted as Medical Superintendent, Deen Dayal Upadhyay (DDU)
Hospital on 10.03.2011 and was to retire on 31.01.2012 on attaining
superannuation.
c. The petitioner was suspended from service on 02.11.2011, just 3
months prior to his date of retirement. Being aggrieved by the
suspension, the petitioner filed an Original Application No.
4087/2011 before the Central Administrative Tribunal (CAT),
Principal Bench, New Delhi. Vide order dated 23.12.2011, the learned
CAT was pleased to quash and set aside the suspension orders dated
02.11.2011 and 28.11.2011.
d. Since the order dated 23.12.2011 was not implemented and the
retirement dated of the petitioner was approaching on 31.01.2012, the
petitioner filed a Contempt Petition No. 06/2012 titled „Dr. Sarbesh
Bhattacharjee v. Sh. Anshu Prakash & Ors.‟ before the learned CAT.
e. Thereafter, the FIR No. 01/2012 and impugned FIR No. 02/2012 were
filed against the petitioner on the same date i.e., 10.01.2012.
f. Following are the FIRs registered against the petitioner:-
FIR No. 01/2012 registered at PS Anti 10.01.2012
Corruption Branch under Section
FIR No. 02/2012 registered at PS Anti 10.01.2012
Corruption Branch under Section
Digitally Signed byAMIT W.P.(CRL) 781/2021 & other connected matters Page 3 of 25
FIR No. 04/2013 registered at PS Anti 16.02.2013
Corruption Branch under Section
RC/DAI/2014/A/0036 P.S. ACB under 22.08.2014
Section 13(1)(d)/13(2) of the PC Act read
with Section 420/468/471/120B IPC
g. All the above-mentioned FIRs emanate from the same tender inquiry
No. 2/DHS/CPA/2009 relating to the procurement of different
medical equipment.
h. As far as the order dated 23.12.2011 of CAT is concerned, the same
was challenged by the Department of Family Health and Welfare
preferred W.P.(C.) No. 249/2012 titled „Department of Health and
Family Welfare v. Dr. Sarbesh Bhattacharjee & Ors.‟ and the
operation of the order dated 23.12.2011 was stayed.
i. Hence, on 06.02.2012, the learned CAT was pleased to close the
contempt matter with liberty to the petitioner to revive the Contempt
Petition if the occasion so arose.
j. Thereafter, the petitioner has been repeatedly called for investigation
and he has been cooperating with the investigating agencies.
k. The petitioner has been granted bail in the FIR No. 01/2012 on
01.06.2012. The petitioner was granted interim protection in the FIR
No. 02/2012 on 04.01.2013 and thereafter anticipatory bail on
23.01.2013. On 17.07.2013, the order of 23.01.2013 was made
absolute. On 20.05.2013, the petitioner was granted interim protection
was in FIR No. 04/2013. He was further granted anticipatory bail vide
order dated 12.08.2013.
Digitally Signed byAMIT W.P.(CRL) 781/2021 & other connected matters Page 4 of 25
l. On 08.04.2013, the W.P.(C) No. 249/2012 titled „Dept. of Health and
Family Welfare v. Sarbesh Bhattacharjee‟ was dismissed.
m. On 22.08.2014, yet another FIR No. RC/DAI/2014/A/0036 registered
at P.S. ACB under Section 13(1)(d)/13(2) PC Act read with Section
420/468/471/120B IPC was registered against the petitioner regarding
the same tender. The Petitioner challenged the same by filing Writ
Petition (Crl.) No. 784/2021. This court in the order of 29.07.2021
recorded that “The charge sheet has already been filed in the Court of
learned C.M.M.; the trial is at the stage of recording of prosecution
evidence and the next date before the learned Trial Court is 13 th
September 2021. It is thus evident that in the RC/DAI/2014/A/0036 of
which the petitioner seeks quashing, no charge sheet has been filed
against the petitioner and even while taking the cognizance, the
petitioner was not summoned as an accused in view of the fact that
there was no material to substantiate that he had committed any
offence, as alleged.” Thus, the Writ Petition was dismissed by this
Hon‟ble Court as infructuous.
n. As per the petition, it is stated that after the suspension of the
petitioner, there has been no departmental inquiry against the
petitioner and never received any charge sheet or memorandum of
charge sheet in relation to the Tender Inquiry No. 2/DHS/CPA/2009.
Allegations in FIR No. 01/2012 :
o. The impugned FIR no. 01/2012, P.S. Anti-Corruption Branch, under
section 13(1)(d)/13(2) Prevention of Corruption Act read with Section
420/120-B IPC alleged that a contract for supply of sterile gloves was
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awarded to M/s. MRK Healthcare vide Tender dated 07.04.2010 for a
period of two years i.e. from 09.04.2010 to 08.04.2012.
p. The FIR No. 01/12 further alleged that:
M/s. MRK Healthcare were to furnish a security deposit calculated on
the following basis:
As per the prosecution case, Rs. 18 lakhs were to be deposited by
M/s. MRK Healthcare whereas they deposited only Rs. 3 lakhs.
The gloves were to be supplied through M/s. Pharmatek (India),
distributors of M/s. MRK Healthcare. Vide letter dated 20.10.2010,
M/s. MRK Healthcare informed that M/s. Pharmatek (India) had
ceased to be their distributor with immediate effect and supply orders
against the CPA contract may be placed with it directly, however, it is
alleged by the investigating agency that vide letter dated 27.10.2010
M/s. MRK Healthcare informed BSA Hospital, Rohini that M/s.
Pharmatek (India) were their distributors.
M/s. MRK Healthcare allegedly sought to cancel the contract on the
ground that excess order had been placed on them in the first year and
they could not continue to supply at the contract rate. The co-accused
Dr. D.S. Rao is alleged to have cancelled the contract, forfeited the
earnest money deposit of Rs. 3 lakhs and informed all the
Directors/Medical Superintendents intimating them of the cancellation
of the rate contract, mentioning the reason behind the decision and
requesting them to make their own arrangement for procurement of
sterile gloves.
The hospitals then allegedly purchased sterile gloves from the open
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market including from M/s. MRK Healthcare which is alleged to have
caused a loss to the exchequer of 98,98,391/-.
Allegations in FIR No. 02/2012 :
q. The allegations in the impugned FIR No. 02/2012 are that in 2009,
surgical tender was initiated by the Chief Medical Officer (“CMO”),
CPA, GNCT of Delhi to finalize the rate contract of drugs and
surgical consumables for all hospitals and other health establishment
under GNCT. It was the responsibility of the CPA to finalize the rates,
pursuant to which the following steps were taken:
04.05.2009 A Sub-Committee under the Chairmanship of Dr.
Manka Tala for the purpose of finalization of T&C
and list of items and their specification for open
tender of Surgical Consumables was constituted.
19.06.2009 SPC constituted a Committee of Dr. N. Singh and
Dr. P.S. Bhandaru to examine the tender documents
which was finalized by the above Sub-Committee.
24.06.2009 The above Sub-Committee suggested a few changes
and sought approval from the Law and Finance
09.10.2009 The Tender was floated by the CPA and on
09.07.2009 tender for 247 items was opened.
21.10.2009 Technical Evaluation Committee was constituted by
the CPA.
27.11.2009 Report of aforesaid Technical Evaluation Committee
was placed before the SPC.
02.12.2009 SPC made a Sample Evaluation Committee and this
Committee submitted its report on 08.12.2009.
21.12.2009 Financial bids were opened.
12.01.2010 a) SPC decided all single quoted and single
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approved items be retendered; b) to constitute a
Sub-Committee to evaluate the rates and assess the
reasonability of rates; c) to extande the old tenders
for six months.
28.01.2010 Meeting of Sub-Committee decided a) items whose
rates had increased upto 50% made be accepted; b)
retendering advised for all items whose rates had
increased above 150%; c) limit of negotiation set for
50% otherwise retendering for all those items was to
be done.
22.03.2010 Meeting of SPC was held and report of Sub-
Committee approved 90 items and further decided
that negotiated L-1 rates for items showing an
increase upto 30% from previous CPA rate may be
approved for rate contract and out of 90 items
recommended for approval, 59 items were approved
for rate contract and 31 items were to be
21.05.2010 Sub-Committee held a meeting and put suggestions
before the SPC.
01.06.2010 Meeting of the SPC was held and it decided to write
to all departments and hospitals under GNCT of
Delhi to provide approved rates. Based on which,
the CPA would prepare a comparative statement of
rates and the recommendation of Sub-Committee
would be placed before SPC in the subsequent
meeting. But, the Chairman of the SPC resigned in
June, 2010 and no meeting was held thereafter.
13.07.2010 Letters were sent to all Medical Superintendent to
provides the approved rates for 31 surgical
consumable items for comparison as per direction of
05.08.2010 Reminders were issued to all hospitals.
12.08.2010 After not receiving of rates from various hospitals,
the matter was placed before the Incharge, CPS and
16.09.2010 DHS approved the rates of 31 surgical consumables
as per recommendations of MS's committee.
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27.10.2010 DHS gave their approval from supplying of suture
material from the two firms namely M/s Centennial
Surgical Sutures Ltd. and M/s B. Braun at their own
level with directions to make negotiation with the
firms to bring the rates of suture material within
50% of previous tender suture rates. But the rates
decided by the DHS were not within 50% of previous
tender suture rates and decided on much higher
rates, even higher than the previous rate and the
then marked rates.
r. It is in this background that the FIR No. 02/2012 was registered for
violating and bypassing the instructions of the Special Purchase
Committee (“SPC”) and causing loss to the government exchequer.
s. The allegation in FIR 2/2012 against the petitioner is that the In-
charge of CPA and DHS took a decision at their own level to purchase
sutures at a higher rate from M/s Centennial Surgical Sutures Ltd.
which should have been done by the Special Purchase Committee
(“SPC”) and the SPC in its meeting dated 28.01.2010 rejected the L-1
rates of M/s Centennial Surgical Sutures Ltd. and had decided to issue
rate contracts of only those items which were within 50% of the
previous approved rates.
t. The allegations against M/s Centennial Surgical Sutures Ltd. are also
On 27.10.2010 (i.e. after the aforementioned decision was taken
by the SPC during the meeting dt. 28.01.2010), the concerned
officer of CPA and DHS proposed that two sutures supplying
firms whose bids were opened against the tender be asked to quote
afresh.
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M/s Centennial Surgical Sutures Ltd. supplied sutures to the CPA
at Rs. 2201/- whereas they were supplied to hospitals, i.e. GB Pant
Hospital at Rs. 996/- and to RML Hospital at Rs. 610/. Thus, there
is a huge difference in the rates of items quoted by M/s Centennial
Surgical Sutures Ltd. in response to tenders for various medical
use items called by DHS, in the existing CPA rate contract from
other three government institutional tender rates. However, during
the arguments before the Ld. Special Judge, Tis Hazari Courts,
Delhi it transpired that, in the minutes of the meeting on
28.01.2010 it was noted that there is no comparison between the
rates offered to individual hospitals and those offered to CPA.
M/s Centennial Surgical Sutures Ltd. had submitted forged
certificates dated 29.10.2009. The Food and Drug Administration,
Thane had denied issuing the same.
u. While being posted as Medical Superintendent, DDU Hospital, the
Petitioner abused his position as public servant for placing order
on M/s Colour Life Sciences Pharmaceutical Company for supply
of surgical rubber gloves.
v. An order dated 15.04.2011 for the supply of surgical gloves was
placed upon M/s Colour Life Sciences on the basis of an allegedly
forged letter, dated 29.03.2011, by which approval was given to
M/s Colour Life Sciences for supply of gloves by GTB Hospital.
w. The rate at which sterile surgical gloves were bought, i.e. at
Rs.12.90 per pair was exorbitant, and gloves supplied were less
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than what was reflected in the account books.
x. The FIR further states that the Petitioner violated GFR Rules,
which only permit single purchase not exceeding Rs. 25 Lakhs.
y. These orders were issued on the basis of the letter dated
29.03.2011, purported to have been issued by Dr. A.K. Chatterjee,
Garden, Delhi to Purchase Officer, DDU Hospital, Delhi
intimating the approved rates of the gloves. However, Dr. A.K.
Chatterjee denied to have issued any such letter and hence, the
said letter was alleged to be forged.
4. Ms. Katju, learned counsel for the petitioner, contends the
a. She states that since filing of the contempt petition, four FIRs have
been registered in retaliation to CP No.6/12 filed by the Petitioner
against the senior officer of GNCT of Delhi. Moreover, out of the four
FIRs, two were registered on the same day i.e., 10.01.2012 making
similar allegations. She states that all the FIRs emanate from the same
tender enquiry no.2/DHS/CPA/2009 relating to the procurement of
different medical equipment which simply shows the mala-fide
intention of the Respondent in multiplying proceedings against the
b. She states that assuming chargesheet has been finalised even then this
does not bar this Hon‟ble Court from quashing FIR under Section
482, CrPC. She quotes the Supreme Court in Joseph Salvaraj A. v.
State of Gujarat, (2011) 7 SCC 59 wherein it was held:
“16. Thus, from the general conspectus of the various sections
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under which the appellant is being charged and is to be
prosecuted would show that the same are not made out even
prima facie from the complainant's FIR. Even if the charge-
sheet had been filed, the learned Single Judge could have still
examined whether the offences alleged to have been committed
by the appellant were prima facie made out from the
complainant's FIR, charge-sheet, documents, etc. or not.”
c. She states that the impugned FIRs are an abuse of the process of the
court. These FIRs were registered in 2012, more than two years after
the alleged offences and 6 months after the complaints were received
by the agency. The investigation was not completed in over 10 long
years, but has been expedited and concluded after filing of the present
writ petitions by the Petitioner. This goes to show the malafide intent
of the respondents against the Petitioner.
d. She states that the delay in the investigation is not attributable to the
Petitioner. It is trite law that the Petitioner has a right to speedy
investigation and trial under Article 21 of the Constitution.
e. With respect to FIR No. 1/2012, she states that no role was attributed
to the Petitioner. Rather, the co-accused Dr. D.S. Rao (who was the
Petitioner's junior officer) was alleged to have cancelled the contract,
forfeited the earnest money deposit and intimated all the
Directors/Medical Superintendents of the cancellation of the rate
contract.
f. She states there is no allegation whatsoever that any advantage was
received by M/s MRK Healthcare, inasmuch as after they cancelled
the contract, the gloves were obtained from the open market, i.e. from
any supplier. Further, the Earnest Money Deposit of M/s MRK
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g. With respect to allegations in FIR No. 2/2012, she states that that the
petitioner had no role to play in the selection of the company, as the
same is done by various committees with members who are experts on
the subject.
h. She states that the submitting of forged certificate is attributable to
M/s Centennial Surgical Sutures Ltd. and the petitioner had no role to
play in that regard. Thus, no offence under Section 420/468/471/120B
IPC is alleged to have been committed by the petitioner.
i. She states that assuming the allegations to be correct, the same do not
amount to criminal misconduct under Section 13(1)(d)/ 13(2) of the
Prevention of Corruption Act, insofar as the petitioner had no role in
the selection of M/s Centennial Surgical Sutures Ltd. as it was done
by various committees with members who are experts on the subject.
j. At best, the offences alleged in the FIR, may amount to negligence or
a breach of rules for which the only remedy was a departmental
proceeding, but there is no criminality involved. She states the only
allegation against the Petitioner is that the Petitioner did not raise the
issue before the higher authorities before taking the decision of
cancellation of the contract.
k. With respect to allegations in FIR No. 4/2013, she states that there is
nothing on record to support the allegation that the Petitioner knew or
had reason to believe that the letter dated 29.03.2011 or 31.08.2011 as
alleged were forged documents. Thus, allegations under section 468
IPC are not established.
l. She states that the allegation under section 471 IPC is not made out
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inasmuch as the petitioner had no knowledge or reason to believe that
the certificate submitted by M/s Colour Life Sciences were forged.
The Petitioner considered the certificates to be genuine and did not
make any fraudulent or dishonest use of the same.
m. She states that FIR no. 04/2013 is stated to be based on information
discovered during the course of investigation in FIR No. 01/2012. In
accordance with the principle laid down in Babubhai v. State of
Gujarat, (2010) 12 SCC 254, registering of a fresh FIR in such
circumstances is an abuse of the process of law.
n. She states that no departmental proceedings were ever initiated
against the Petitioner, who is however, now receiving a provisional
pension. Petitioner‟s gratuity and leave encashment have not been
released to him till date.
o. The dishonest intention on the part of a public servant while obtaining
the valuable thing, is an essential prerequisite for an offence under
Section 13(1)(d) PC Act. In the entire FIR, there is no allegation of
any demand or acceptance of any bribe or illegal gratification, which
is also a prerequisite for 13(1)(d) PC Act.
p. She placed reliance on the judgment of Anil Maheshwari & Ors. v.
CBI, 2013 SCC OnLine Del 2175 to contend that a public servant has
a duty to take decisions on file and every award of a tender or claim,
decision to cancel a contract etc. and is bound to cause pecuniary
advantage to some and perhaps disadvantage to another. But merely
causing pecuniary advantage to someone will not hold the public
servant liable for criminal misconduct, unless it is coupled with the
use of corrupt or illegal means, abuse of position, or is without public
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q. She further stated that no offence under Section 420 IPC is made out
as the petitioner never deceived any person or induced any person to
deliver any property or retain any property, nor consented that a
person shall retain any property nor caused any person to do anything
or omit to do anything that they would have done if not so deceived.
r. She further states that offence under section 120-B IPC is not
established since there is no allegation that any of the co-accused
persons agreed to do or caused to be done any alleged illegal act or
any act which is not illegal by illegal means.
5. Per contra, Mr. Kundu, learned counsel for the respondent, argues the
a. He states that assuming there is a delay in investigation, the same is
not a ground for quashing the FIR. He places reliance on A R Antulay
& Ors. v. R.S. Nayak & Anr. [(1992) 1 SCC 225], to state that the
delay does not automatically cause prejudice to the accused and
balance is required to determine whether prejudice has actually been
caused to the accused. He further submits that in the present case, the
inordinate delay, if any, did not prejudice the rights of the petitioner.
b. He states that as per the Apex Court‟s observation in Dhanlaxmi v. R.
Prasanna Kumar, AIR 1990 SC 494, the High Court should not
quash proceedings initiated by the magistrate when there are specific
allegations in the complaint disclosing ingredients of offence.
c. He further states that as per the ratio in Jagdish Ram v. State of
Rajasthan, AIR 2004 SC 1734, in considering the question whether
criminal proceeding deserve to be quashed on the ground of delay, the
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first question to be looked at is the reason for delay as also the
seriousness of the offence. The court held that delay by itself is no
ground for initiating quashing proceedings.
d. It is stated that the investigation is complete and the charge sheet has
been prepared and is pending before the competent authority for grant
of sanction. He further states that this Hon'ble Court can consider the
investigation and the material gathered by the investigating agency,
forming part of the charge sheet, at the time of adjudicating the
present writ petition in view of the Judgment passed in 'Abhishek
Gupta & Anr. v. State of NCT of Delhi & Anr.' [Crl.MC. 1064/2022
decided by Delhi High Court on 16.03.2022], wherein it is held that:
“If the allegations made in the FIR or complaint or the
evidence collected, though remaining uncontroverted, do not
disclose the commission of an offence, then the FIR and
charge-sheet could be quashed.”
e. He submits that in the present case, on a proper conspectus of the
material gathered by the investigating agency, no case for quashing of
FIRs is made out. There are other accused persons in the charge sheet
in addition to the Petitioner; the cause of action is different and in the
above-mentioned FIRs, the co-accused are different in each of the
FIRs. Therefore, all the FIRs are distinct offences wherein the
beneficiaries as well as suppliers are different.
f. With regards to the allegations in FIR No. 01/2012, he states that it
was revealed in the enquiry that after supply of about 57,00,000/-
pairs of sterile gloves through its supplier, M/S Pharmatek India
during the first year of the rate contract, M/s MRK Healthcare refused
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to further supply surgical gloves. On this refusal, I/C CPA and the
Petitioner (DHS) maliciously cancelled the contract in haste and
intimated all hospitals to make their own arrangements regarding
procurement of sterile gloves. Due to this, all hospitals directly placed
orders for sterile gloves to M/s MRK Healthcare due to which a loss
of Rs. 98,98,391/- was caused to the exchequer and gain to M/s MRK
g. With regards to the allegations in FIR No. 02/2012, he states that
during enquiry it was revealed that the pronouncement of sutures by
CPA at higher rates was not finalised by SPC. In fact, it was the In-
charge CPA and DHS who took this decision to purchase sutures at
higher rates i.e., at Rs. 2201/-. Furthermore, the firm had submitted a
forged Manufacture and Marketing Standing Certificate bearing no.
Cert./MSC-68/2019-2009/I dated 29.10.2009 at the time of tender
which was not issued by Food & Drugs Administration, Thane.
h. With regards to the allegations in FIR No. 04/2013, he states that
investigation has revealed that DDU hospital had issued supply order
for Rs. 24,51,000/- and Rs. 46,64,000/- for purchase of sterile surgical
gloves in favour of M/s Lord Krishna Company and M/s Colour Life
Science respectively. These orders were issued on the basis of the
letter dated 29.03.2011, purported to have been issued by Dr. A.K.
Dilshad Garden, Delhi to Purchase Officer, DDU Hospital, Delhi
intimating the approved rates of the gloves @ Rs. 12.90 per pair plus
VAT valid upto 31.08.2011. However, during verification, the said
letter was found to be forged. The Petitioner was the Medical Supdt.
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at DDU Hospital at the time and was found to have violated the
mandatory provision of GFR which states that in a single purchase,
the amount cannot exceed Rs. 25 lacs but a supply order of Rs.
46,64,000/- was given to M/s Colour Life Sciences which led to filing
of FIR No. 04/2013. Thus, the respondent argues that the Petitioner
played a key role in the conspiracy to commit offences under PC Act
and IPC.
i. I have heard learned counsel for the parties and have gone through the
material documents.
j. I am of the view that the impugned FIRs in the present case are to be
quashed.
k. At the outset, what weighs with me for quashing of the FIRs is the
delay in investigation and filing of charge-sheet. In the present case,
allegations in the FIR are of the year of 2012 and 2013. The complaint
was made two years after the date of the incident and the FIR was
registered 6 months thereafter. The delay in registering FIR is fatal.
Moreover, the respondent took more than 10 years to finalise the
charge-sheet.
l. In this matter, arguments were concluded on 07.07.2022 and the
judgment was reserved. However, there was some confusion with
regards to the filing of the chargesheet as in the written arguments on
behalf of the respondent, it has been stated in para no. 8 that
chargesheet has been filed but in the subsequent para no.12, it is stated
that the chargesheet has been prepared but is now pending before the
Competent Authority for grant of sanction. Hence, the matter was put
up for clarification on 06.10.2022 wherein, the parties have clarified
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that the chargesheet is yet to be filed as it is awaiting sanction.
6. According to Article 21 of the Constitution, the petitioner is entitled
to the right to speedy investigation and trial. The Apex court in A R
Antulay v. R S Nayak (1992) 1 SCC 225 has identified that “Right to
speedy trial is the right of the accused.” Reliance is also placed on
Vakil Prasad Singh v. State of Bihar, (2009) 3 SCC 355 wherein, it
“24. It is, therefore, well settled that the right to speedy trial in
all criminal persecutions (sic prosecutions) is an inalienable
right under Article 21 of the Constitution. This right is
applicable not only to the actual proceedings in court but also
includes within its sweep the preceding police investigations as
well. The right to speedy trial extends equally to all criminal
prosecutions and is not confined to any particular category of
cases. In every case, where the right to speedy trial is alleged to
have been infringed, the court has to perform the balancing act
upon taking into consideration all the attendant circumstances,
enumerated above, and determine in each case whether the
right to speedy trial has been denied in a given case.”
7. The Supreme Court in Mahendra Lal Das v. State of Bihar and
Others (2002) 1 SCC 149 held the following:
“7. In cases of corruption the amount involved is not material
but speedy justice is the mandate of the Constitution being in
the interests of the accused as well as that of the society. Cases
relating to corruption are to be dealt with swiftly, promptly and
without delay. As and when delay is found to have been caused
during the investigation, inquiry or trial, the concerned
appropriate authorities are under an obligation to find out and
deal with the persons responsible for such delay. The delay can
be attributed either to the connivance of the authorities with the
accused or used as a lever to pressurise and harass the accused
as is alleged to have been done to the appellant in this case.
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The appellant has submitted that due to registration of the case
and pendency of the investigation he lost his chance of
promotion to the post of Chief Engineer. It is common
knowledge that promotions are withheld when proceedings with
respect to allegations of corruption are pending against the
incumbent. The appellant has further alleged that he has been
deprived of the love, affection and the society of his children
who were residing in a foreign country as on account of the
pendency of the investigation he could not afford to leave the
country.
8. This Court in Ramanand Chaudhary v. State of Bihar
quashed the investigation against the accused on account of not
granting the sanction for more than 13 years. The facts of the
present case are almost identical. No useful purpose would be
served to put the appellant at trial at this belated stage.”
8. It is pertinent to note that CBI in the present case, had registered a
case bearing No. RC/DAI/2014/A/0036 dated 22.08.2014. The
petitioner filed a Writ Petition (Crl.) bearing no. 784 of 2021 titled
„Dr Sarbesh Bhattacharjee v. CBI‟ seeking quashing of the said RC.
The W.P. (Crl.) 784/21 was dismissed as infructuous vide order
29.07.2021 by this Hon‟ble Court as the CBI had filed its status report
dated 28.07.2021 before this Court wherein they submitted :
“3. That although the CBI registered the instant case against
Dr. S. Bhattacharjee, the then Director, DHC & Ors., however,
the allegations against Dr. S. Bhattacharjee has not
substantiated.
7. That the Petitioner/Applicant Dr. S. Bhattacharjee has not
been charge sheeted by the CBI as his involvement in the
conspiracy could not be established during the investigation.”
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9. Even though filing of the chargesheet does not preclude this court
from entertaining the present writ petitions as held by the Supreme
Court in Anand Kumar Mohatta v. State (NCT of Delhi) (2019) 11
SCC 706, however, in the present matters, investigation was
prolonged for over 10 long years and was immediately concluded
after filing of the present writ petitions by the Petitioner.
10. In the present matters, there is abuse of process of law. The impugned
FIRs were registered in 2012, more than 2 years after the alleged
offences and 6 months after the complaints were received by the
agency. Both FIR No. 1/2012 and FIR No. 2/2012 are registered on
the same day i.e., 10.01.2012 (though emanating from different
complaints). It is pertinent to note that the petitioner was suspended
vide order 02.11.2011, just 3 months before his superannuation on
31.01.2012. His suspension was set aside by CAT on 23.12.2011 but
the department did not implement the same. Hence, the petitioner
filed a Contempt Petition (CP) no. 6/2012 which was dismissed by
CAT on 06.01.2012. Interestingly, the petitioner never faced
departmental proceedings but was suspended, and is now receiving
provisional pension.
11. I find merit in the submission that FIR No. 01/2012, 02/2012 and
04/2013 have been filed as a counterblast to the contempt petition
filed by the petitioner.
12. There has been an inordinate delay of more than 10 years in filing the
charge-sheet, which is yet not filed for want of sanction. The delay in
investigation is not attributable to the petitioner. In my view, the
Respondent has not been able to justify the inordinate delay in filing
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the charge-sheet and concluding the investigation.
13. The Apex Court in Pankaj Kumar v. State of Maharashtra (2008) 16
SCC 117 quashed the criminal proceedings on account of
“unwarranted prolonged investigations” that caused inordinate delay.
The court held as under:
“24. Tested on the touchstone of the broad principles,
enumerated above, we are of the opinion that in the instant
case, the appellant's constitutional right recognised under
Article 21 of the Constitution stands violated. It is common
ground that the first information report was recorded on 12-5-
1987 for the offences allegedly committed in the year 1981, and
after unwarranted prolonged investigations, involving
aforestated three financial irregularities; the charge-sheet was
submitted in court on 22-2-1991. Nothing happened till April
1999, when the appellant and his deceased mother filed
criminal writ petition seeking quashing of proceedings before
the trial court.
25. Though, it is true that the plea with regard to inordinate
delay in investigations and trial has been raised before us for
the first time but we feel that at this distant point of time, it
would be unfair to the appellant to remit the matter back to the
High Court for examining the said plea of the appellant. Apart
from the fact that it would further protract the already
delayed trial, no fruitful purpose would be served as learned
counsel for the State very fairly stated before us that he had
no explanation to offer for the delay in investigations and the
reason why the trial did not commence for eight long years.
Nothing, whatsoever, could be pointed out, far from being
established, to show that the delay was in any way attributable
to the appellant.
26. Moreover, having regard to the nature of the accusations
against the appellant, briefly referred to above, who was a
young boy of about eighteen years of age in the year 1981,
when the acts of omission and commission were allegedly
committed by the concerns managed by his parents, who have
since died, we feel that the extreme mental stress and strain of
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prolonged investigation by the Anti-Corruption Bureau and the
sword of Damocles hanging perilously over his head for over
fifteen years must have wrecked his entire career.
27. Be that as it may, the prosecution has failed to show any
exceptional circumstance, which could possibly be taken into
consideration for condoning the prolongation of investigation
and the trial. The lackadaisical manner of investigation
spread over a period of four years in a case of this type and
inordinate delay of over eight years (excluding the period
when the record of the trial court was in the High Court), is
manifestly clear.
28. Thus, on facts in hand, we are convinced that the appellant
has been denied his valuable constitutional right to a speedy
investigation and trial and, therefore, criminal proceedings
initiated against him in the year 1987 and pending in the Court
of the Special Judge, Latur, deserve to be quashed on this short
ground alone.” (emphasis supplied)
14. From the aforesaid, what can be culled out is that Article 21
recognises the right of speedy trial. The respondent/prosecuting
agency must justify the reason for inordinate delay. The delay should
not be attributable to the acts of the petitioner.
15. In the present case, there has been an inordinate and unexplained
delay in completing the investigation on the part of the prosecution.
The Petitioner has always cooperated and joined the investigation
whenever called upon.
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16. Thus, the delay in the investigation is not attributable to the Petitioner.
The chargesheet has not been filed even till 06.10.2022 and is
awaiting sanction. The sword has been hanging on the head of the
petitioner for no fault of his.
17. The recent judgment of the Apex Court titled Vijay Rajmohan v.
State Criminal Appeal No. 1746 of 2022 is distinguishable on facts.
In the case of Vijay Rajmohan (supra) the sanction was granted after
1 year and 10 months and the same was considered to be not fatal
whereas, in the case on hand, the chargesheet has not been filed over a
decade for want of sanction.
18. What weighs with me is not only the fact that the chargesheet is still
awaiting sanction before the competent authority but also the
inordinate and unexplained delay in conducting the investigation for
Digitally Signed byAMIT W.P.(CRL) 781/2021 & other connected matters Page 24 of 25
19. The incidents mentioned in the FIR are more than a decade old and
hence, serious prejudice would be caused to the petitioner if trial is to
be conducted on a chargesheet after more than a decade. The
petitioner cannot be made to undergo the agony of trial after a decade
of filing the FIRs.
20. For the aforesaid reasons, FIR No.01/2012, FIR No.02/2012 and FIR
No.04/2013 are hereby quashed on account of delay in investigation
and filing of chargesheet.
21. Since I am quashing the FIRs on aforesaid grounds, I do not deem it
fit to give findings on the merits or demerits of the allegations in the
22. Thus, the writ petitions are allowed.
23. The writ petitions along with applications are disposed of accordingly.
Digitally Signed byAMIT W.P.(CRL) 781/2021 & other connected matters Page 25 of 25 | The Delhi High Court has quashed the three FIRs that were registered by Anti Corruption Branch against a senior doctor in 2012 and 2013, observing that there was an unexplained delay of 10 years in completing investigation and that chargesheet was still awaiting sanction from the appropriate authority.
The FIRs were under various provisions of Prevention of Corruption Act, 1988 and Indian Penal Code, 1860.
Justice Jasmeet Singh allowed the pleas filed by Dr Sarbesh Bhattacharjee, the former Director Health Services in Delhi, for quashing of the FIRs registered against him. Bhattacharjee had served as a medical officer under the Andhra Pradesh government, Assam Rifles and finally the Central Government Health Service (CGHS) for 36 years.
The FIRs emanated from a tender inquiry of 2009 relating to the procurement of different medical equipment.
Bhattacharjee was posted as Director of Health Services in August 2009. He was posted as Medical Superintendent of city's Deen Dayal Upadhyay Hospital in March 2011 and was to retire in January 2012. However, he was suspended from service in November 2011, three months prior to his date of retirement.
Subsequently, a total of four FIRs were registered against him — three by Anti Corruption Branch and one by CBI. While the three FIRs have now been quashed by Justice Singh, Bhattacharjee was not chargesheeted in the 2014 by the CBI as there was no material to substantiate that he had committed the offence.
With regard to the three FIRs, it was the petitioner's case that he had cooperated with the investigating agency after being repeatedly called to join the probe.
While Bhattacharjee was granted regular bail in one of the FIRs in 2012, he was granted anticipatory bail in the other two in 2013.
Advocate Arundhati Katju appearing for Bhattacharjee argued that the impugned FIRs were an abuse of the process of the court as they were registered in 2012, more than two years after the alleged offences and six months after the complaints were received by the agency.
She further submitted that the probe was incomplete even after 10 long years but the same was expedited and concluded after Bhattacharjee moved High Court. "This goes on to show the malafide intent of the respondents against the petitioner," Katju argued.
On the other hand, the prosecution argued that the investigation was complete and the charge sheet was prepared but it was pending before the competent authority for grant of sanction.
Quashing the three FIRs, the court observed that there had been an inordinate delay of more than 10 years in filing the chargesheet, which has still not been filed for want of sanction.
"Even though filing of the chargesheet does not preclude this court from entertaining the present writ petitions as held by the Supreme Court in Anand Kumar Mohatta v. State (NCT of Delhi) (2019) ..., however, in the present matters, investigation was prolonged for over 10 long years and was immediately concluded after filing of the present writ petitions by the Petitioner," said Justice Singh.
The court also observed in the cases against the doctor, there has been "abuse of process of law". "Interestingly, the petitioner never faced departmental proceedings but was suspended, and is now receiving provisional pension," it added.
Observing that Bhattacharjee is entitled to the right to speedy investigation and trial, the court was of the view that the prosecution was unable to justify the inordinate delay in filing the charge-sheet and concluding the investigation.
"In the present case, allegations in the FIR are of the year of 2012 and 2013. The complaint was made two years after the date of the incident and the FIR was registered 6 months thereafter. The delay in registering FIR is fatal. Moreover, the respondent took more than 10 years to finalise the charge-sheet," the court said.
While referring to a Supreme Court decision, it said: "From the aforesaid, what can be culled out is that Article 21 recognises the right of speedy trial. The respondent/prosecuting agency must justify the reason for inordinate delay. The delay should not be attributable to the acts of the petitioner."
Further noting that Bhattacharjee always cooperated and joined the investigation whenever called upon, the court said that the delay in the investigation was not attributable to him.
"The chargesheet has not been filed even till 06.10.2022 and is awaiting sanction. The sword has been hanging on the head of the petitioner for no fault of his," the court said.
It added "What weighs with me is not only the fact that the chargesheet is still awaiting sanction before the competent authority but also the inordinate and unexplained delay in conducting the investigation for 10 long years."
Advocates Arundhati Katju, Mohammad Ali Choudhary and Shrishti Borthakur appeared for the petitioner. R.S. Kundu appeared for the State.
Title: DR SARBESH BHATTACHARJEE v. STATE NCT OF DELHI |
ivil Appeal No. 4195 of 1989.
From the Judgment and Order dated 16.2.1987 of the Andhra Pradesh High Court in C.R.P. No. 3750 of 1984.
B. Kanta Rao for the Appellant.
M.S. Ganesh for the Respondents.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
We grant special leave and proceed to dispose of the appeal.
In O.S. No. 821/1973, there was ex parte decree against the appellant for payment of Rs.2,000 and cost.
In execution of the decree, the appellant 's land section No.116 at Bayanguda village measuring 10 acres was brought to Court sale.
His small farm house was also located in the land.
In the auc tion held the respondent purchased the land for Rs. 17,000.
The sale was subject to the prior mortgage for Rs.2,000 in favour of the Land mortgage Bank Jangareddigudem.
On 31 May 1976 the sale was confirmed.
On 26 July 1976, the appellant filed application under Order XXI Rule 90 for setting aside the sale.
He impeached the auction sale broadly on three grounds namely: (i) that he was the owner of only one acre of land and the remaining 9 acres in the said survey number belonged to his father Siddaiah, (ii) that the land was worth about Rs.70,000 but it was sold for a very low price of Rs. 17,000 by fraudulent procedure followed by the au thorities, and (iii) that he was not served with notice before attachment or sale.
453 In support of the above allegations, the appellant entered the witness box as PW 2.
He has also examined four other witnesses besides producing documentary evidence marked as exhibit A 1 to A 13.
The auction purchaser in turn has examined three witnesses.
On appraisal of the evidence, the executing court the Principal District Munsif, Kovvur, rejected the application of the appellant.
He held that the sale was not vitiated by fraud or irregularity.
The appeal against that order was dismissed by learned Subordinate Judge at Kovvur.
Before the appellate court, one other contention was argued on behalf of the appellant.
It was contended that the executing court ought to have sold only such portion of the land as would satisfy the decretal dues and the sale of the entire 10 acres was illegal and without authority.
The appellate court rejected that contention for the reason that it is a single piece of land and could not have been divided into parcels.
The High Court of Andhra Pradesh also dismissed the appel lant 's revision, but expressed no opinion as to whether a portion of the land could have been sold to satisfy the decree.
Hence this appeal.
The principal question that has been highlighted before us relates to the legality of the sale of 10 acres of land without considering whether a portion of the land could have been sold to satisfy the decree.
It is said that the total sum claimed in the execution was Rs.2,395.50.
The relevant provision which has a bearing on the question is Rule 64 Order XXI of the Code of Civil Procedure and it reads as follows: "Order XXI Rule 64: Power to order property attached to be sold and proceeds to be paid to persons entitled Any Court executing a decree may order that any property attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree, shall be sold, and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same.
" It is of importance to note from this provision that in all execution proceedings, the Court has to first decide whether it is necessary to bring the entire attached proper ty to sale or such portion thereof as may seem necessary to satisfy the decree.
If the property is large and the decree to be satisfied is small, the Court must bring only such 454 portion of the property, the proceeds of which would be sufficient to satisfy the claim of the decree holder.
It is immaterial whether the property is one or several.
Even if the property is one, if a separate portion could be sold without violating any provision of law only such portion of the property should be sold.
This, in our opinion, is not just a discretion, but an obligation imposed on the Court.
Care must be taken to put only such portion of the property to sale the consideration of which is sufficient to meet the claim in the execution petition.
The sale held without examining this aspect and not in conformity with this re quirement would be illegal and without jurisdiction.
In Takkaseela Pedda Subba Reddy vs Pujari Padmavathamma and Ors., at 340; this Court after examin ing the scope of Rule 64 of Order XXI CPC has taken a simi lar view: "Under this provision the executing Court derives jurisdiction to sell properties at tached only to the point at which the decree is fully satisfied.
The words 'necessary to satisfy the decree ' clearly indicate that no sale can be allowed beyond the decretal amount mentioned in the sale proclamation.
In other words, where the sale fetches a price equal to or higher than the amount mentioned in the sale proclamation and is sufficient to satisfy the decree, no further sale should be held and the court should stop at that stage.
" We may again hark back to the case of the appellant.
The amount claimed in the execution petition was about Rs.2,400.
To realize that amount the land measuring 10 acres was sold for Rs. 17,000.
The appellate court has stated that the land being one, could not have been divided.
Shri Ganesh, learned counsel for the respondent sought to justify that view.
But we find it difficult to appreciate that reason.
It seems to be against common sense.
The land is not indivisible.
Nor division is impracticable or undesirable.
Out of 10 acres, the Court could have conveniently demarcated a portion and sold it.
Unfortunately, no such attempt was made and it was not even thought of.
The Court has blind fold sold the entire property.
This is a usual feature which we have noticed in most of the execution cases.
We must deprecate this tendency.
There is a duty cast upon .the
Court to sell only such property or a portion thereof as necessary to satisfy the decree.
It is a mandate of the legislature which cannot be ignored.
We cannot, therefore, sustain the im pugned sale.
It must be set aside being in contravention of the provisions of Rule 64, Order XXI CPC.
455 In the result, we allow the appeal with costs.
In rever sal of the orders of the courts below, we set aside the impugned sale.
We direct the Executing Court first to put the appellant in possession of the land in question and then refund the sale amount to the auction purchaser if it is in deposit.
The Court, thereafter may proceed to execute the decree according to law and in the light of the observations made.
This order shah be complied with within two months from the date of receipts of this order.
P.S.S. Appeal allowed. | Rule 64, Order XXI CPC empowers the Court executing a decree to bring to sale any property attached by it or such portion thereof as may seem necessary to satisfy the decree.
The appellant 's land measuring 10 acres was brought to court sale in execution of a decree.
The respondent purchased the land for Rs. 17,000.
The sale was subject to a prior mort gage for Rs.2,000.
The appellant 's application under Order XXI, Rule 90 for setting aside the sale was rejected by the executing court on the ground that the sale was not vitiated by fraud or irregularity.
The appeal against the order was dismissed by the Subordinate Judge.
Before the appellate court the con tention taken on behalf of the appellant was that the exe cuting court ought to have sold only such portion of the land as would satisfy the decretal dues and the sale of the entire 10 acres was illegal and without authority.
The court rejected that contention on the ground that it was a single piece of land and could not have been divided into parcels.
The High Court also dismissed the revision.
Allowing the appeal by special leave, HELD: In all execution proceedings, the court has to first decide whether it is necessary to bring the entire attached property to sale or such portion thereof as may seem necessary to satisfy the decree.
If the property is large and the decree to be satisfied is small, the court must bring only such portion of the property to sale the proceeds of which would be sufficient to satisfy the claim of the decree holder.
It is a mandate of the legislature which cannot be ignored.
Any sale held without examining this aspect and not in conformity with this requirement would thus be illegal and without jurisdiction.
[453H; In the instant case, the amount claimed in the execution petition was about Rs.2,400.
To realize that amount the land measuring 10 acres was sold for Rs.17,000.
The land is not indivisible.
Nor division is impracticable or undesirable.
Out of 10 acres, the court could have conveniently demarcat ed a portion and sold it.
[454E F] The sale must, therefore, be set aside being in contra vention of the provision of Rule 64, Order XXI CPC.
[454H] Takkaseela Pedda Subba Reddy vs Pujari Padmavathamma & Ors., at 340, referred to. |
These petitions are filed by the common accused invoking
Section 482 of Cr.P.C, praying this Court to direct the second
respondent to release the petitioner/accused, forthwith, from the
Central Prison, Bengaluru, in respect of the following cases in
which the petitioner herein convicted for the offence punishable
under Section 138 of the Negotiable Instruments Act, 1881 (‘the
NI Act’ for short) and undergoing substantive sentence and
default sentence. The details are:
2. The petitioner, who is the common accused in the
above cases. In the petitions, it is contended that consequent
upon the Judgment of conviction and sentence in all 10 cases
both substantive sentence and default sentence she has been
serving sentence in prison from 08.02.2017. Though, the
petitioner had made a representation on 22.11.2018 and
05.12.2018, the Government of Karnataka and Chief
Superintendent Central Prison, Bengaluru, that she has already
served the imprisonment term, despite of which the authorities
did not consider the request made by the accused/petitioner,
unless this Court interfere and make the sentence to run
concurrently instead of consecutively as contemplated under
Section 427 of Cr.P.C.
3. The learned counsel appearing for the petitioner in
his arguments vehemently contend that the petitioner has been
serving the sentence from 08.02.2017 and already served the
sentence more than 27 months till filing of the petitions. As per
the dictums of various judgments in all cases, approximately, in
11 cases, the petitioner bound to serve 60 months of sentence in
aggregately. Though the Trial Court has awarded sentences in
different cases but in all cases the offences are similar in nature,
except complainants are different parties but accused person is
same and more so several cheques are being issued in a single
transaction. Thus, the Trial Court ought to have convicted the
petitioner in all cases, by imposing sentences are to be run
concurrently instead of consecutively. The learned counsel
referring to Section 427 of Cr.P.C, vehemently contend that it
ought to have been ordered concurrently. The learned counsel
in his arguments also vehemently contend that the Trial Court
have committed an error in ordering the sentence consecutively.
4. The learned counsel for the petitioner in support of
his contentions, he relied upon the judgment of the Apex Court
in the case of State of Punjab v. Madan Lal reported in AIR
2009 SC (Supp) 2836, wherein, the Apex Court held that,
Section 428 - sentences – concurrent running – several cheques
issued by accused in single transaction dishonoured – Accused
convicted and sentenced separately for each offence - Direction
that sentences would run concurrently would be Proper.
5. The learned counsel for the petitioner also relied
upon the judgment of the Apex Court in the case of V.K. Bansal
v. State of Haryana and another reported in (2013) 7
Supreme Court Cases 211, wherein, the Apex Court held that,
while awarding sentence concurrent and the same not to be
exercised in a mechanical or pedantic manner – Cases involving
dishonour of cheques issued by borrower towards repayment of
a loan – Each one of loan transactions was a separate and
distinct transaction between complainant and borrowing
Company – Different cheques subsequently dishonoured on
presentation could be said to be arising out of a single loan
transaction – Concurrent running of sentence directed limited to
substantive sentence only.
6. The learned counsel for the petitioner also relied
upon the judgment of the Apex Court in the case of Shyam Pal
v. Dayawati Besoya and another reported in (2016) 10
Supreme Court Cases 761, wherein, the Apex Court while
discussing Section 138 of the NI Act and Section 427 of Cr.P.C.
held that, power to direct concurrent running of sentences is
discretionary. Accused convicted for offence under Section 138
of the NI Act, in respect of two cases arising out of successive
transactions in a series between same parties and tried together
– Was sentenced to simple imprisonment for 10 months and fine
of Rs.6,50,000/- as compensation in both cases – Considering
duration of custody of accused as evidenced by custody
certificate of Deputy Superintendent of Prison to that effect –
Substantive sentences of 10 months’ simple imprisonment
awarded to accused in both cases directed to run concurrently.
7. The learned counsel for the petitioner also relied
upon the judgment of the Apex Court in the case of Ammavasai
and another v. Inspector of Police, Valliyanur and others
reported in AIR 2000 Supreme Court 3544, wherein, the Apex
Court discussed Section 427 of Cr.P.C. and also the offence
under Section 395 of IPC, held that, benefit of all the sentences
to run concurrently on the ground that occurrence in all cases
took place between 3 to 5 months – Offence found against each
of them in all cases was under Section 395 of IPC. – Appellants
sentenced to undergo R.I. for 7 years in each case – Appellants
claiming benefit under Section 427 in order to avoid undergoing
of imprisonment for total period of 28 or 35 year in jail – Benefit
if allowed appellants would be out after serving sentence of 7
years awarded in one case – To meet ends of justice held,
appellants to undergo total period of 14 years of imprisonment in
respect of all convictions passed against them.
8. The learned counsel for the petitioner also relied
upon the judgment of the High Court of Judicature for Rajasthan
at Jodhpur in the case of Rajender s/o Satya Narain v. State
of Rajasthan in S.B.CRIMINAL MISC (PET) No.2883/2014,
referring to this Judgment, the learned counsel would contend
that similarly placed case, the Rajasthan High Court extended
the benefit in respect of different cases of cheque bounce cases
and held that 32 cases which have been referred would run
concurrently in respect of the substantive sentences. However,
the petitioner will have to serve default sentences as the
provisions of Section 427 of Cr.P.C, do not permit a direction for
concurrent running of substantive sentences with the sentences
awarded in default of payment of fine/compensation. The
sentences, which the petitioner has been directed to undergo in
default of payment of fine/compensation shall not be affected by
this direction and if the petitioner has not paid the
fine/compensation as directed by the trial courts, the said
sentences would run consecutively.
9. The learned counsel for the petitioner also relied
upon the unreported judgment of this Court in the case of
Vadiraja v. State by CPI, Brahmavar, Udupi District in
wherein, this Court discussed Section 428 of Cr.P.C. and allowed
the petition in respect of the offences punishable under Sections
392 and 413 of IPC. The sentences shall run concurrently.
10. Per contra, learned counsel for respondent
No.1/complainant in most number of cases herein vehemently
contend that the petitioner herein is the accused before the Trial
Court in all the cases, is one and the same. The learned counsel
for the petitioner contends that no trial was taken place in other
cases and also not disputes the fact that the accused has
pleaded guilty. It is also not in dispute that in one case evidence
has been recorded. The learned counsel would submit that in the
cases on hand in some cases only directed to pay the fine
amount and in default of payment of fine she has to suffer the
default sentence. In some of the other cases, she was awarded
with substantive sentences and directed to pay the fine amount
and in default she has to undergo default sentence.
11. The learned counsel would submit that when the
complainants are different and the same cannot be termed as it
is a single transaction as held by the Apex Court. The
complainants are different and transactions are different and
cause of actions are also different. When such being the case,
there cannot be an order for concurrent sentences and it should
be consecutive only. It is also contended that the default
sentence is a continuous offence and the same cannot be a
concurrent sentence. The learned counsel would submit that
Section 427 of Cr.P.C, is not applicable and the petitioner herein
cheated more than Rs.3.5 Crores.
12. The learned Counsel for respondent
No.1/complainant in support of his contentions, he also relied
upon the judgment of the Apex Court in Shyam Pal’s case
(supra), the very same judgment referred by the petitioner’s
counsel also and brought to the notice of this Court paragraph
Nos.9, 10, 12 and 13, wherein, the Apex Court discussed the
Judgment in V.K. Bansal’s case (supra), and the Apex Court has
observed that the Court has the power and discretion to issue a
direction that a subsequent sentence shall run concurrently with
the previous sentences, the very nature of the power so
conferred, predicates that the discretion, would have to be
exercised along judicial lines or not in a mechanical or pedantic
manner. It was underlined that there is no cut and dried formula
for the court to follow, in the exercise of such power and that the
justifiability or otherwise of the same, would depend on the
nature of the offence or offences committed and the attendant
facts and circumstances. It was however postulated, that the
legal position favours the exercise of the discretion to the benefit
of the prisoners in cases where the prosecution is based on a
single transaction, no matter even if different complaints in
relation thereto might have been filed. The caveat as well was
that such a concession cannot be extended to transactions which
are distinctly different, separate and independent of each other
and amongst others where the parties are not same. The learned
counsel also brought to the notice of this Court that the
imperative essentiality of a single transaction as the decisive
factor to enable the court to direct the subsequent sentence to
run concurrently.
13. The learned counsel referring to this Judgment would
vehemently contend that in the cases on hand, it is not a single
transaction, it is different and distinct and the said principle
cannot be extended to the transaction, which are distinctly
different and separate and independent of each other. The
learned counsel would contend that the very contention of the
petitioner before this Court is that it was a single transaction
cannot be accepted. The learned counsel would contend that it is
not only in respect of the chit transaction and the cheques are
issued in respect of the loan transactions taken place between
the petitioner and the complainants.
14. Learned High Court Government Pleader appearing
for respondent No.2 in her arguments vehemently contend that
the Apex Court in V.K. Bansal’s case (supra), held that, Court
should exercise its discretion judicially and not mechanically in
each case, having regard to nature of offence and particular fact
situation – No straitjacket approach can be laid down – However,
only substantive sentences can be directed to run concurrently
and sentences awarded in default of payment of
fine/compensation cannot be directed to run concurrently. The
Apex Court also discussed with regard to the single transaction
rule is concerned, where there was a single transaction
constituting offences, even if different complaints were filed in
relation thereto, sentences can be directed to run concurrently.
But, where the cheques are issued in respect of the different
transaction if it would constitute a separate and independent
transaction and sentence awarded to appellant-accused under
Section 138 of the NI Act cannot be directed to run concurrently.
The learned counsel brought to the notice of this Court to
paragraph No.18, wherein, the Apex Court has discussed in
detail, which has been extracted below:
“18. Applying the principle of single transaction
referred to above to the above fact situations we are of
the view that each one of the loan transactions/financial
arrangements was a separate and distinct transaction
between the complainant on the one hand and the
borrowing company/appellant on the other. If different
cheques which are subsequently dishonoured on
presentation, are issued by the borrowing company acting
through the appellant, the same could be said to be
arising out of a single loan transaction so as to justify a
direction for concurrent running of the sentences awarded
in relation to dishonour of cheques relevant to each such
transaction. That being so, the substantive sentence
awarded to the appellant in each case relevant to the
transactions with each company referred to above ought
to run concurrently. We, however, see no reason to
extend that concession to transactions in which the
borrowing company is different no matter the appellant
before us is the promoter/Director of the said other
companies also. Similarly, we see no reason to direct
running of the sentence concurrently in the case filed by
State Bank of Patiala against M/s Sabhyata Plastics and
M/s Rahul Plastics which transaction is also independent
of any loan or financial assistance between the State
Financial Corporation and the borrowing companies. We
make it clear that the direction regarding concurrent
running of sentence shall be limited to the substantive
sentence only. The sentence which the appellant has been
directed to undergo in default of payment of
fine/compensation shall not be affected by this direction.
We do so because the provisions of Section 427 CrPC do
not, in our opinion, permit a direction for the concurrent
running of the substantive sentences with sentences
awarded in default of payment of fine/compensation.”
15. In reply to the arguments of learned counsel for
respondent No.1 and learned High Court Government Pleader
appearing for respondent No.2, the learned counsel appearing
for the petitioner would vehemently contend that all these
transactions are in respect of the single transaction in respect of
subscribing of chits and non payment of chit fund, cheques are
issued and she has been in custody for almost four years.
Hence, the petitioner is entitled for the benefit under Section 427
of Cr.P.C. The learned counsel also disputes the very contentions
of the respondents’ counsel that the transaction is not a single
16. Having heard the arguments of the respective
counsel and also considering the principles laid down in the
judgments referred supra, it is clear that if it is single
transaction, then, the petitioner is entitled for the order to run
the sentence concurrently, if it is not a single transaction,
different and independent transaction, then, the petitioner is not
entitled for the benefit. The Apex Court in V.K. Bansal’s case
(supra), made it clear that if the transactions are different there
cannot be any concurrent sentence and further observed in the
Judgment that only substantive sentences can be directed to run
concurrently and sentences awarded in default of payment of
fine, compensation cannot be directed to run concurrently. Now
this Court has to examine whether all the transactions are
pertaining to a single transaction as contended by the learned
counsel for the petitioner and also considered the contention of
the respondents that the transaction is different transaction.
The Apex Court also in the recent Judgment in Shyam Pal’s
case (supra), discussed in paragraph No.13, the said benefit
cannot be extended to transactions which are distinctly different,
separate and independent of each other and amongst others. In
the case on hand, it has to be noted that the complainants are
different. No doubt, the offences invoked against the petitioner
herein under Section 138 of the NI Act. It is also not in dispute
that the judgments are passed on different dates, but in 7 cases,
the judgments are passed by the very same judge and the
judgments are delivered on 21.07.2017. Having perused the
details of the cases also the fine amount imposed also different
in three cases only default sentence has been awarded in other
cases sentence of six months as well as directed to pay the fine
amount in default six months sentence also imposed. Hence, it
is clear that in the cases on hand, there is a substantive
sentence and also a default sentence against the petitioner
17. In view of the principles laid down in the judgments
referred supra, it is clear that only the substantive sentences can
be made as concurrent if it is the transaction is single
transaction. If it is the transaction is different transaction, the
said concession cannot be given to the petitioner. Hence, I would
like to make it clear that the default sentences cannot be made
as concurrent and the same should run consecutively in respect
of the substantive sentence is concerned, this Court has to look
into each case material before the Court whether the
transactions are arising out of same transaction or different
18. In respect of Crl.P.No.705/2020, the complainant
made an allegation that the petitioner herein requested the
complainant to become the subscriber of the chit and on request
of the accused, the complainant has subscribed two chits. One
chit for Rs.5,00,000/- and another for Rs.10,00,000/- on
monthly installment of Rs.12,500/- each. The other persons are
also subscribers to the said chit. The accused has not made the
payment and ultimately executed a settlement deed on
21.02.2015 and in terms of the settlement deed, cheque was
issued and the same was dishonoured.
19. In respect of Crl.P.No.1062/2020, wherein, the
complainant in the complaint made an allegation that the
complainant agreed to accommodate hand loan to the accused
and lent hand loan of Rs.7 Lakhs to the accused i.e., in the
month of second week of May 2015. The cheque was issued and
the same was dishonoured.
20. In respect of Crl.P.No.1098/2020, the accused has
approached the complainant to pay a loan of Rs.35 Lakhs to
discharge the hand loan borrowed from the third parties and
accordingly in the 4th week of May 2014, made the payment and
borrowed the hand loan of Rs.35 Lakhs and the same was not
repaid. Hence, cheques were issued and the same were
21. In respect of Crl.P.No.26/2020, the transaction
between the parties as per the complaint, the complainant
borrowed a hand loan of Rs.14 Lakhs and the amount has not
been paid. Hence, the cheques were issued and the same were
22. In respect of Crl.P.No.34/2020, wherein, the
complainant borrowed a hand loan of Rs.15 Lakhs and in default
of payment of money, cheques were issued and the same were
23. In respect of Crl.P.No.3977/2019, the complainant
has subscribed two chits. One chit for a sum of Rs.5,00,000/-
and another for a sum of Rs.10,00,000/- on monthly installment
of Rs.12,500/- each and not made the payment. Hence, the
cheques were issued and the same were dishonoured.
24. In respect of Crl.P.No.62/2020, the complainant
borrowed a hand loan of Rs.30 Lakhs and not made the
payment. Hence, a cheque was issued and the same was
25. In Crl.P.No.630/2020, the complainant borrowed a
hand loan of Rs.5.5 Lakhs. Payment was not made and a cheque
was issued and the same was dishonoured.
26. In Crl.P.No.703/2020, the complainant borrowed a
hand loan of Rs.18 Lakhs and payment was not made. The
cheques were issued and the same were also dishonoured.
27. In Crl.P.No.758/2020, the complainant has
subscribed two chits. One chit for a sum of Rs.5,00,000/- and
another for a sum of Rs.10,00,000/- on monthly installment of
Rs.12,500/- each. Due to non-payment of chit amount, cheque
was issued and the same was also dishonoured.
28. Having perused the factual aspects of each case, it is
emerged that it is not a single transaction. In seven cases, there
were loan transactions between the parties and the transactions
are of the years 2014 and 2015 and in other cases the
complainants are the subscribers of two chits and those two chit
transactions are also the different transactions. When such being
the case, when the transactions are different, the question of
passing an order invoking Section 427(1) of Cr.P.C, the sentence
shall run concurrently with the previous sentences does not
29. In the judgment of the Apex Court in V.K. Bansal’s
case (supra), wherein, it was held that though it is manifest from
Section 427(1) of Cr.P.C, that the Court has the power and
discretion to issue a direction that a subsequent sentence shall
run concurrently with the previous sentences, the very nature of
the power so conferred, predicates that the discretion, would
have to be exercised along judicial lines or not in a mechanical
or pedantic manner.
30. I have already pointed out that the record discloses
that these are the cases arising out of different transactions and
also different complainants and even though the accused is one
and the same. If the transactions are the single transaction, then
only, the Court can invoke Section 427(1) of Cr.P.C. to extend
the benefit. The transactions are different and cause of actions
are different and complainants are different. Under the
circumstances, there cannot be an order even for substantive
sentences to run concurrently. In the cases on hand, it has to be
noted that apart from substantive sentences, default sentences
are also awarded. It is settled law that in case of default
sentences, there cannot be an order of concurrent sentences.
31. In seven cases, substantive sentences are awarded
along with default sentence. In case of non-payment of
fine/compensation, the Judgments are also on different dates. It
is settled law that there was no cut and dried formula for the
court to follow, in the exercise of such power and that the
justifiability or otherwise of the same, would depend on the
nature of the offence or offences committed and the attendant
facts and circumstances. The legal position favours the exercise
of the discretion to the benefit of the prisoners in cases where
the prosecution is based on a single transaction, no matter even
if different complaints in relation thereto might have been filed.
The concession cannot be extended to transactions which are
distinctly different, separate and independent of each other and
amongst others where the parties are not the same.
32. In the cases on hand, the accused is common, the
complainants are different, transactions are different and cause
of actions are also different, it is not in respect of single
transaction, it is in respect of two chit transactions and also
seven different loan transactions. Hence, it is not a fit case to
extend the benefit under Section 427(1) of Cr.P.C. as contended
by the learned counsel for the petitioners. It is also important to
note that the fine of Rs.3,11,10,000/- was imposed apart from
imprisonment and default sentence for non-payment in respect
of all the 10 cases. Hence, the petitioner also cannot contend
that she may be extended the benefit under Section 427 of
Cr.P.C. as taking into note of the facts and circumstances of the
case for having owed liability to such an extent.
33. In view of the discussions made above, I pass the
The petitions are dismissed. | The Karnataka High Court has held that only substantive sentences can be made as concurrent if it is of a single transaction. If the transaction is different, the said concession cannot be given to the accused. In case of default sentences, there cannot be an order of concurrent sentences.
A single bench of Justice H P Sandesh while dismissing a petition said "I would like to make it clear that the default sentences cannot be made as concurrent and the same should run consecutively in respect of the substantive sentence is concerned, this Court has to look into each case material before the Court whether the transactions are arising out of same transaction or different transaction."
Petitioner submissions:
Petitioner C Bharati had approached the court seeking to issue directions to the Chief Superintendent of Central Prison, to release her forthwith, from the Prison, in respect of the following cases in which the petitioner was convicted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and undergoing substantive sentence and default sentence.
It was submitted that the petitioner has been serving the sentence from 08.02.2017 and already served the sentence more than 27 months till filing of the petitions. As per the sentences in all cases, the petitioner is bound to serve 60 months of sentence in aggregately. Though the Trial Court has awarded sentences in different cases but in all cases the offences are similar in nature, except complainants are different parties but accused person is same and more so several cheques are being issued in a single transaction. Thus, the Trial Court ought to have convicted the petitioner in all cases, by imposing sentences to be run concurrently instead of consecutively.
Reliance was placed on the following Supreme court judgments: State of Punjab v. Madan Lal reported in AIR 2009 SC (Supp) 2836. Supreme Court order in the case of V.K. Bansal v. State of Haryana and another reported in (2013) 7 Supreme Court Cases 211. Shyam Pal v. Dayawati Besoya and another reported in (2016) 10. Ammavasai and another v. Inspector of Police, Valliyanur and others reported in AIR 2000 Supreme Court 3544.
Complainant opposed the plea:
It was contended that when the complainants are different and the same cannot be termed as a single transaction as held by the Apex Court. The complainants are different and transactions are different and cause of actions are also different. When such being the case, there cannot be an order for concurrent sentences and it should be consecutive only. It is also contended that the default sentence is a continuous offence and the same cannot be a concurrent sentence. The learned counsel would submit that Section 427 of Cr.P.C, is not applicable and the petitioner herein cheated more than Rs.3.5 Crores.
Prison department opposed the plea:
The High Court Government Pleader appearing for respondent No.2 submitted that only substantive sentences can be directed to run concurrently and sentences awarded in default of payment of fine/compensation cannot be directed to run concurrently.
Court Findings:
The bench said "Considering the principles laid down in the judgments referred supra, it is clear that if it is single transaction, then, the petitioner is entitled for the order to run the sentence concurrently, if it is not a single transaction, different and independent transaction, then, the petitioner is not entitled for the benefit."
On going through the judgments cited the court observed "In view of the principles laid down in the judgments referred supra, it is clear that only the substantive sentences can be made as concurrent if it is the transaction is single transaction. If the transaction is different, the said concession cannot be given to the petitioner."
It then went through each of the cases for which the petitioner is convicted and opined that "Having perused the factual aspects of each case, it has emerged that it is not a single transaction. In seven cases, there were loan transactions between the parties and the transactions are of the years 2014 and 2015 and in other cases the complainants are the subscribers of two chits and those two chit transactions are also the different transactions. When such being the case, when the transactions are different, the question of passing an order invoking Section 427(1) of Cr.P.C, the sentence shall run concurrently with the previous sentences does not arise."
It added "The legal position favours the exercise of the discretion to the benefit of the prisoners in cases where the prosecution is based on a single transaction, no matter even if different complaints in relation thereto might have been filed. The concession cannot be extended to transactions which are distinctly different, separate and independent of each other and amongst others where the parties are not the same."
The court also noted that the fine of Rs.3,11,10,000/- was imposed apart from imprisonment and default sentence for non-payment in respect of all the 10 cases. Hence, the petitioner also cannot contend that she may be extended the benefit under Section 427 of Cr.P.C. as taking into note of the facts and circumstances of the case for having owed liability to such an extent.
Accordingly it dismissed the petition.
Click Hear To Download/Read Order |
Habeas Corpus Petition has been filed under Article 226 of
Constitution of India seeking for an issue of a Writ of Habeas Corpus
directing the 9th respondent namely, the Commissioner of Police, Chennai
City, Tamil Nadu to secure the minor sons respondents 2 and 3 from the
illegal custody of the respondents 1, 4 and 5 and to produce the bodies of the
respondents 2 and 3 before this Court and hand over the custody of the said
minor childrens to, so that the respondents 2 and 3 can be taken to the United
States of America where they were living and studying in school since they
are the citizens of the said country.
For Respondents : Mr.M.Muthappan for R1 to R5
“The Child is father of the Man” is a famous quote from William
§Wordsworth’s poem “My Heart Leaps Up”. The popular understanding of
this phrase is that the behaviour and activities of a person’s childhood go a
long way in building his personality. Children used to be enchanted with the
joys of childhood and those thoughts evoke nostalgia when the child becomes
a man. For Wordsworth, a rainbow in the sky made his heart leap. Alas, gone
are the days when children used to enjoy their childhood and they are now
helplessly made to witness the fight between their father and mother, because
of their petty egos and it is painful to notice that in most of those fights, it is
the children who are used as a pawn. The mental health of such a child takes
a beating and how such a child is going to grow into a man and manage
relationships, is a million dollar question. We were constrained to start this
judgment with such a poignant note since we encounter two or three such
cases on a daily basis while dealing with Habeas Corpus Petitions. This is yet
another case which falls under this category and we have to deal with it
keeping in mind the best interest of the children involved in this case.
2. The father of and , twin boys, has
knocked the doors of this Court seeking for handing over the custody of the
children and to take them back to the United States of America(USA) in order
to continue their living and education at USA.
3. The brief facts of the case are as under:
3.1. The petitioner got married to (1st respondent
herein) on 21.04.1999 according to Hindu rites and customs. Even before
marriage, the petitioner and the 1st respondent were citizens of USA and
naturally, both of them left India after 10 days of their marriage and started
their matrimonial life in Virginia. Through the marriage, the twin boys were
born on 16.04.2008 and they also acquired American citizenship by birth.
3.2. The children were raised and educated in USA and this continued
till December 2020. The children came along with their mother to India on
27.12.2020 to meet their grandparents and to stay with them. By then, there
was friction in the relationship between the petitioner and the 1st respondent.
3.3. The grievance of the petitioner is that the stay of the children in
India was extended from time to time upto May 2021. Even thereafter, the 1st
respondent was not returning back to USA. As a first step, the petitioner
caused a legal notice on 23.09.2021 calling upon the 1st respondent to return
back to USA along with the children. The 1st respondent issued a reply notice
dated 22.10.2021, which mostly gave her justification to stay away from the
petitioner, in India. The reconciliation process did not fructify and ultimately,
an action was initiated by the petitioner during October 2021 for divorce and
custody of the children before the appropriate Court at Virginia. The 1st
respondent submitted herself to the jurisdiction of the said Court and moved a
motion to transfer the jurisdiction from Virginia and this motion was denied
by the Circuit Court of Fairfax County through order dated 27.01.2022 and
the matter was set for trial for the custody of the children.
3.4. The 1st respondent moved O.P.No.719 of 2021 before this
Court seeking for the relief of permanent custody of the minor children. The
petitioner filed a petition in Application No.384 of 2022 seeking for the
rejection of the petition and this Court by an order dated 21.03.2022 rejected
the petition in O.P.No.719 of 2021 and gave liberty to the 1st respondent to
work out her remedy before the Circuit Court of Fairfax County, USA. The 1 st
respondent, aggrieved by the same, filed O.S.A.No.102 of 2022 and this
Appeal was dismissed as withdrawn on 12.07.2022.
3.5. The petition that was moved by the petitioner was taken up by
the Circuit Court and an order was passed on 21.07.2022, giving the sole
custody of the children to the petitioner and directing the 1st respondent to
handover the children on or before 12.08.2022. The 1st respondent moved an
Application to suspend the order passed on 21.07.2022 and accordingly, a
suspension order was passed on 29.07.2022. Ultimately, a final order was
passed on 18.10.2022 lifting the suspension order dated 29.07.2022 and
thereby, the earlier order that was passed on 21.07.2022 was restored. The
trial for the divorce and equity distribution was scheduled to 4th and 5th of
3.6. In the meantime, the 1st respondent enrolled the children with
an online High School and the education of the children was continued
through online mode and the children are now stay put with the 1st respondent
in India. Parallelly, the 1st respondent started initiating various proceedings
against the petitioner viz. O.P.No.2788 of 2022 seeking for the relief of
restitution of conjugal rights before the 2nd Additional Family Court, Chennai,
proceedings under the Domestic Violence Act in D.V.C.No.116 of 2022
before the Additional Mahila Court, Egmore and it was also brought to our
notice that a criminal complaint has been given against the petitioner and his
family members for alleged offence under Section 498A of IPC. Thus, the 1st
respondent has paved way for further complications in an already tumultuous
relationship prevailing between the petitioner and the 1st respondent.
3.7. It is under these circumstances, the Habeas Corpus Petition
came up for hearing before us and we heard Mr.G.Rajagopalan, learned
Senior Counsel for the petitioner, Mr.M.Muthappan, learned counsel for R1
to R5 and R.Muniyapparaj, learned Additional Public Prosecutor for R9. We
carefully considered the submissions made on either side and the materials
placed before us.
4. At the outset, this Court has to make it abundantly clear that the
dispute between the petitioner and the 1st respondent will not be gone into and
we will focus our attention only on those facts which directly concern the best
interests of the children.
5. There is no dispute with regard to the fact that the petitioner, the 1 st
respondent and the children are American citizens. There is also no dispute
with regard to the fact that the parties concerned are Overseas Citizen of
India (OCI) card holders. The OCI card is more in the nature of a long time
visa and it does not confer any domiciliary right to the card holder and the
card holder for all purposes is considered to be a foreigner as envisaged under
the Foreigners Act, 1946. We must also bear in mind that this Court must give
due regard to the order passed by the Circuit Court of Fairfax County and the
implementation of the same.
6. Before we go into the essential facts to decide on the relief sought
for by the petitioner, it will be more appropriate to take note of the legal
position with regard to the jurisdiction of this Court to entertain this petition
and the manner in which the interest of the children must be determined,
considering the fact that they are American citizens.
7. The co-ordinate Bench of this Court (in which one of us Justice
P.N.Prakash was a party) dealt with a very similar issue in H.C.P.No.654 of
2021 in the case of Girish Arunagiri v. Mahalakshmi Senthil Nathan and Others.
The relevant portions in the judgment are extracted hereunder:
“14. The preliminary question is whether a habeas corpus
petition is maintainable to secure the custody of the two children and
direct their return to the United States. We find that this issue is no
longer res integra, and is settled by a decision of the Supreme Court in
Yashita Sahu (supra), wherein, it is observed thus:
“10. It is too late in the day to urge that a writ of habeas
corpus is not maintainable if the child is in the custody of another
parent. The law in this regard has developed a lot over a period of time
but now it is a settled position that the court can invoke its
extraordinary writ jurisdiction for the best interest of the child. This has
been done in Elizabeth Dinshaw v. Arvand M. Dinshaw [Elizabeth
Dinshaw v. Arvand M. Dinshaw, (1987) 1 SCC 42 : 1987 SCC (Cri) 13]
, Nithya Anand Raghavan v. State (NCT of Delhi) [Nithya Anand
Raghavan v. State (NCT of Delhi), (2017) 8 SCC 454:(2017) 4 SCC
(Civ) 104] and Lahari Sakhamuri v. Sobhan Kodali [Lahari Sakhamuri v.
Sobhan Kodali, 2019) 7 SCC 311 : (2019) 3 SCC (Civ) 590] among
others. In all these cases, the writ petitions were entertained.
Therefore, we reject the contention of the appellant wife that the writ
petition before the High Court of Rajasthan was not maintainable.”
15. We also notice that the basis of our jurisdiction under Article
226 of the Constitution of India, in a case of this nature, is essentially
predicated on the best interests of the children. We have, therefore,
consciously refrained from being sidetracked into the matrimonial
allegations levelled by the spouses against each other in their
respective affidavit and counter affidavit.
16. In cases of child custody, the jurisdiction of the Court is
essentially parens patriae. The welfare and best interests of the
children must be the pre- dominant consideration. In Elizabeth
Dinshaw (supra), the Supreme Court has observed as under:
“Whenever a question arises before a court pertaining to
the custody of a minor child, the matter is to be decided not on
considerations of the legal rights of parties but on the sole and
predominant criterion of what would best serve the interest and welfare
of the minor.”
When a writ of habeas corpus is sought to direct the
return of a child to another country, the Court would also examine
which of the two Courts (the domestic or foreign) would have the most
intimate connect with the minor for the purposes of securing the child’s
safety and well-being. In Surinder Kaur Sandhu vs. Harbax Singh
Sandhu [(1984) 3 SCC 698], the Supreme Court dealt with an identical
case of spouses who had set up their matrimonial home in England.
Their child was a British citizen. The Court, speaking through Chief
Justice Y.V.Chandrachud, opined thus:
“Ordinarily, jurisdiction must follow upon functional lines. That is to
say, for example, that in matters relating to matrimony and custody, the
law of that place must govern which has the closest concern with the
well-being of the spouses and the welfare of the offsprings of marriage.
The spouses in this case had made England their home where this boy
was born to them. The father cannot deprive the English Court of its
jurisdiction to decide upon his custody by removing him to India, not in
the normal movement of the matrimonial home but, by an act which
was gravely detrimental to the peace of that home. The fact that the
matrimonial home of the spouses was in England, establishes sufficient
contacts or ties with that State in order to make it reasonable and just
for the courts of that State to assume jurisdiction to enforce obligations
which were incurred therein by the spouses.”
(emphasis supplied by us)
17. Keeping in mind the best interests of the minor children and
the “most intimate connect” principle, the line of enquiry in a case of
this nature has been set out by the Supreme Court in V. Ravi
Chandran (Dr.) (2) vs. Union of India and others [(2010) 1 SCC
174], in the following passage:
“29. While dealing with a case of custody of a child removed
by a parent from one country to another in contravention of the orders
of the court where the parties had set up their matrimonial home, the
court in the country to which the child has been removed must first
consider the question whether the court could conduct an elaborate
enquiry on the question of custody or by dealing with the matter
summarily order a parent to return custody of the child to the country
from which the child was removed and all aspects relating to the child's
welfare be investigated in a court in his own country. Should the court
take a view that an elaborate enquiry is necessary, obviously the court
is bound to consider the welfare and happiness of the child as the
paramount consideration and go into all relevant aspects of welfare of
the child including stability and security, loving and understanding care
and guidance and full development of the child's character, personality
and talents. While doing so, the order of a foreign court as to his
custody may be given due weight; the weight and persuasive effect of a
foreign judgment must depend on the circumstances of each case.
30. However, in a case where the court decides to exercise
its jurisdiction summarily to return the child to his own country, keeping
in view the jurisdiction of the court in the native country which has the
closest concern and the most intimate contact with the issues arising in
the case, the court may leave the aspects relating to the welfare of the
child to be investigated by the court in his own native country as that
could be in the best interests of the child. The indication given in
McKee v. McKee [1951 AC 352 : (1951) 1 All ER 942 (PC)] that there
may be cases in which it is proper for a court in one jurisdiction to
make an order directing that a child be returned to a foreign jurisdiction
without investigating the merits of the dispute relating to the care of the
child on the ground that such an order is in the best interests of the
child has been explained in L (Minors), In re [(1974) 1 WLR 250 :
(1974) 1 All ER 913 (CA)] and the said view has been approved by this
Court in Dhanwanti Joshi [(1998) 1 SCC 112] . Similar view taken by
the Court of Appeal in H. (Infants), In re[(1966) 1 WLR 381 (Ch & CA) :
(1966) 1 All ER 886 (CA)] has been approved by this Court in Elizabeth
18. To complete the picture, we also notice a mild
jurisprudential shift in Nithya Anand Raghavan (supra) and Kanika
Goel v. State (NCT of Delhi) [(2018) 9 SCC 578], wherein, it was held
that the doctrine of “intimate and closest concern” are merely of
persuasive relevance when the child is uprooted from its native country
and taken to a place to encounter alien environment, language, custom,
etc. with the portent of mutilative bearing on the process of its overall
growth and grooming; the adjudicative mission in such cases has the
obligation to secure the unreserved welfare of the child as the
paramount consideration. These principles have been cited and
reiterated in Lahari Sakhamuri (supra). In its recent decision in
Nilanjan Bhattacharya vs. State of Karnataka [2021 SCC Online SC
928], the Supreme Court opined that where a child has been removed
from its native country to India, it would be in the best interests of the
child to return to its native country if the child has not developed roots
in India and no harm would be caused to the child on such return. It
was held that where one parent had acted with sufficient promptitude,
the Court is only required to conduct a summary inquiry to ascertain
whether there is any harm if the child returns to the United States,
where he was born and has been brought up. The Court is required to
engage in an elaborate inquiry on the merits of the case, only if a
considerable time has passed since the child has been removed and if
the child has developed roots in India. In either event, the primary
consideration of the Court is to ascertain the welfare of the child.”
8. It will also be pertinent to take note of the recent judgment of the
Apex Court in Rohit Thammana Gowda v. State of Karnataka and Others in Civil
Appeal No.4987 of 2022, dated 29.07.2022. This judgment becomes very
relevant since the facts therein are very similar to the facts of the present
case. Hence, the relevant portions are extracted hereunder:
“8.At the outset we may state that in a matter involving
the question of custody of a child it has to be borne in mind that
the question ‘what is the wish/desire of the child’ is different and
distinct from the question ‘what would be in the best interest of
the child’. Certainly, the wish/desire of the child can be
ascertained through interaction but then, the question as to
‘what would be in the best interest of the child’ is a matter to be
decided by the court taking into account all the relevant
circumstances. When couples are at loggerheads and wanted
to part their ways as parthian shot they may level extreme
allegations against each other so as to depict the other
unworthy to have the custody of the child. In the circumstances,
we are of the view that for considering the claim for custody of a
minor child, unless very serious, proven conduct which should
make one of them unworthy to claim for custody of the child
concerned, the question can and shall be decided solely looking
into the question as to, ‘what would be the best interest of the
child concerned’. In other words, welfare of the child should be
the paramount consideration. In that view of the matter we think
it absolutely unnecessary to discuss and deal with all the
contentions and allegations in their respective pleadings and
affidavits.
9. To answer the stated question and also on the
question of jurisdiction we do not think it necessary to conduct a
deep survey on the authorities This Court in Nithya Anand
Raghawan v. State (NCT of Delhi) [(2017) 8 SCC 454],
reiterated the principle laid in V. Ravi Chandran v. Union of
India [(2010) 1 SCC 174] and further held thus:—
“In exercise of summary jurisdiction, the court must be
satisfied and of the opinion that the proceedings instituted before it
was in close proximity and filed promptly after the child was
removed from his/her native state and brought within its territorial
jurisdiction, the child has not gained roots here and further that
it will be in the child's welfare to return to his native
state because of the difference in language spoken or social
customs and contacts to which he/she has been accustomed or
such other tangible reasons. In such a case the court need not
resort to an elaborate inquiry into the merits of the paramount
welfare of the child but leave that inquiry to the foreign court by
directing return of the child. Be it noted that in exceptional cases
the court can still refuse to issue direction to return the child to
the native state and more particularly in spite of a pre-existing
order of the foreign court in that behalf, if it is satisfied that the
child's return may expose him to a grave risk of harm”.
10. In Ravi Chandran's case (supra), this Court took
note of the actual role of the High Courts in the matter of
examination of cases involving claim of custody of a minor
based on the principle of parens patriae jurisdiction considering
the fact that it is the minor who is within the jurisdiction of the
court. Based on such consideration it was held that even while
considering Habeas Corpus writ petition qua a minor, in a given
case, the High Courts may direct for return of the child or
decline to change the custody of the child taking into account
the attending facts and circumstances as also the settled legal
position. In Nitya Anand's case this Court had also referred to
the decision in Dhanwanti Joshi v. Madhav Unde [(1998) 1 SCC
112] which in turn was rendered after referring to the decision of
the Privy Council in Mckee v. Mckee [[1951] A.C. 352]. In
Mckee's case the Privy Council held that the order of the foreign
court would yield to the welfare and that the comity of courts
demanded not its enforcement, but its grave consideration.
Though, India is not a signatory to Hague Convention of 1980,
on the “Civil Aspects of International Child Abduction”, this
Court, virtually, imbibing the true spirit of the principle of parens
patriae jurisdiction, went on to hold in Nithya Anand Raghavan's
“40. … As regards the non-Convention countries, the
law is that the court in the country to which the child has been
removed must consider the question on merits bearing the welfare
of the child as of paramount importance and reckon the order of the
foreign court as only a factor to be taken into consideration, unless
the court thinks it fit to exercise summary jurisdiction in the interests
of the child and its prompt return is for its welfare. In exercise of
summary jurisdiction, the court must be satisfied and of the opinion
that the proceeding instituted before it was in close proximity and
filed promptly after the child was removed from his/her native state
and brought within its territorial jurisdiction, the child has not gained
roots here and further that it will be in the child's welfare to return to
his native state because of the difference in language spoken or
social customs and contacts to which he/she has been accustomed
or such other tangible reasons. In such a case the court need not
resort to an elaborate inquiry into the merits of the paramount
welfare of the child but leave that inquiry to the foreign court by
directing return of the child. Be it noted that in exceptional cases the
court can still refuse to issue direction to return the child to the
native state and more particularly in spite of a pre-existing order of
the foreign court in that behalf, if it is satisfied that the child's return
may expose him to a grave risk of harm. This means that the courts
in India, within whose jurisdiction the minor has been brought must
“ordinarily” consider the question on merits, bearing in mind the
welfare of the child as of paramount importance whilst reckoning the
preexisting order of the foreign court if any as only one of the factors
and not get fixated therewith. In either situation - be it a summary
inquiry or an elaborate inquiry - the welfare of the child is of
paramount consideration. Thus, while examining the issue the
courts in India are free to decline the relief of return of the child
brought within its jurisdiction, if it is satisfied that the child is now
settled in its new environment or if it would expose the child to
physical or psychological harm or otherwise place the child in an
intolerable position or if the child is quite mature an objects to its
return. We are in respectful agreement with the aforementioned
exposition.”
11. Having taken note of the position thus settled in the
said decisions we will now consider the question whether such
an exercise had been undertaken properly in this case. This is
because in this case foreign Court, as noted above, passed
orders for the return of the child to USA. There is nothing on
record to show that such an order passed on the second
occasion was also vacated subsequently. True that the first
order to that effect passed on 26.10.2020 was subsequently
vacated at the instance of the third respondent on 30.10.2020.
However, going by the records the subsequent order passed in
March 2021 Superior Court of Washington, County of King for
the return of the child owing to non-compliance led to further
order for contempt on 29.4.2021. The High Court, obviously,
observed that though the U.S Court subsequently suspended
the order of spousal support did not pass any order regarding
the custody of the child and hence, custody of the child is
continuing with respondent No. 3. We have referred to those
aspects solely for the purpose of pointing out that the High
Court was aware of the existence of order for the return of the
child by the US Court.
12. Be that as it may, we will now consider the question
whether consideration was bestowed by the High Court in the
matter in terms of the position settled by this Court in the
aforementioned decisions i.e., by giving predominant
importance to the welfare of the child. A scanning of the
impugned judgment would reveal that the High Court had rightly
identified the vital aspect that paramount consideration should
be given to the welfare of the child while considering the matter.
13. We have stated earlier that the question ‘what is the
wish/desire of the child’ can be ascertained through interaction,
but then, the question as to ‘what would be the best interest of
the child’ is a matter to be decided by the court taking into
account all the relevant circumstances. A careful scrutiny of the
impugned judgment would, however, reveal that even after
identifying the said question rightly the High Court had swayed
away from the said point and entered into consideration of
certain aspects not relevant for the said purpose. We will
explain the raison d'etre for the said remark.
14. The High Court, after taking note of the various
proceedings initiated by the appellant before the US Courts
formed an opinion that he had initiated such proceedings only
with an intention to enhance his chance of success in the
Habeas Corpus Writ Petition and to pre-empt any move by the
wife (respondent No. 3) for custody by approaching the Indian
Courts. In other words, the initiation of proceedings before the
US Court was motivated and definitely not in good faith and
was also not in the best interests of the son. In this context, it is
relevant to note that US Court concerned had, admittedly,
ordered for the return of the child and owing to the non-
compliance with the said order initiated action for contempt. The
spousal support order passed by the US Court was also
suspended for the reason of non-compliance with the order for
return of the child. When US Court was moved and the court
had passed orders the above mentioned observation can only
be regarded as one made at a premature stage and it was
absolutely uncalled for and it virtually affected the process of
consideration of the issue finally. When the US Court passed
such orders and not orders on the custody of the child it ought
not to have been taken as permission for respondent No. 3 to
keep the custody of the child. At any rate, after the order for
return of the child and orders for contempt such a plea of the
respondent No. 3 ought not to have been entertained.
15. Considering the fact that the marriage between the
appellant and respondent No. 3 was conducted in Bengaluru in
accordance with Hindu rites and ceremonies, the High Court
held that the US Courts got no jurisdiction to entertain any
dispute arising out of the marriage. This conclusion was arrived
at without taking into account the efficacy of the order passed
by the US Court. It was not strictly for the return of respondent
No. 3 but was an order intending to facilitate the return of a
naturalised citizen of America holding an American Passport.
Paragraph 85 of the impugned judgment would reveal that the
High Court had enquired about the desire and comfort of the
child with respect to his schooling and stay during the
interaction. The court found that the child expressed no difficulty
in his schooling or his stay in Bengaluru and ultimately satisfied
that the child is comfortable and secure with staying with his
mother.
16. The child in question is a boy, now around 11 years
and a naturalised US citizen with an American passport and his
parents viz., the appellant and respondent No. 3 are holders of
Permanent US Resident Cards. These aspects were not given
due attention. So also, the fact that child in question was born
in USA on 03.02.2011 and till the year 2020 he was living and
studying there, was also not given due weight while considering
question of welfare of the child. Merely because he was brought
to India by the mother on 03.03.2020 and got him admitted in a
school and that he is now feeling comfortable with schooling
and stay in Bengaluru could not have been taken as factors for
considering the welfare of the boy aged 11 years born and lived
nearly for a decade in USA. The very fact that he is a naturalised
citizen of US with American passport and on that account he might,
in all probability, have good avenues and prospects in the country
where he is a citizen. This crucial aspect has not been appreciated
at all. In our view, taking into account the entire facts and
circumstances and the environment in which the child had born and
was brought up for about a decade coupled with the fact that he is a
naturalised American citizen, his return to America would be in his
best interest. In this case it is also to be noted that on two occasions
American courts ordered to return the child to USA. True that the
first order to that effect was vacated at the instance of
respondent No. 3. However, taking into account all aspects, we
are of the view that it is not a fit case where courts in India
should refuse to acknowledge the orders of the US Courts
directing return of the minor child to the appellant keeping in view
the best interests of the child. In our view, a consideration on the
point of view of the welfare of the child would only support the order
for the return of the child to his native country viz., USA. For, the
child is a naturalised American citizen with American passport. He
has been brought up in the social and culture value milieu of USA
and, therefore, accustomed to the lifestyle, language, custom, rules
and regulations of his native country viz., USA. Further, he will have
better avenues and prospects if he returns to USA, being a
naturalised American citizen.
17. In this case during the course of the arguments the
learned counsel for the appellant on behalf of the appellant
submitted that in case respondent No. 3 wants to return and stay in
US with her parents so as to have proximity to and opportunity to
take care of the child the appellant is prepared to do the needful, if
the respondent No. 3 so desires. It is further submitted that the
appellant is also prepared to find suitable accommodation for them
in that regard.”
9. It is pellucid from the above judgments that the Habeas Corpus
Petition is maintainable and this Court can invoke its extraordinary
jurisdiction for the best interests of the children. There is also sufficient
indication in the above judgments as to how to deal in cases where the child
is a naturalised foreign citizen and has grown and lived in a foreign soil for a
sufficiently long time.
10. The children in question are now aged about 14½ years and they
are naturalised US citizens with an American passport and their parents viz.
the petitioner and the 1st respondent are also holders of American citizenship.
During their early years, they were sent to a Montessori school system and
thereafter, they joined Grace Episcopal School and studied there till 4th
standard and thereafter joined St.Albans School where they continued till
their 7th standard. It is also seen from records that the children were exposed
to various extra-curricular activities like swimming, basketball, music, chess
etc. and they both are Gold medallists in the Science Olympiad. Infact,
even qualified for Junior Olympics in swimming while he was
training with St. Albans School swimming team. All this was going well till
the end of 2020.
11. The children travelled to India and they are staying here from
27.12.2020 onwards, in the custody of the 1st respondent. Unfortunately, the
children are now made to undergo online schooling and from one of the
messages that was sent by the 1st respondent, we are able to see that the
children, in order to meet the timelines, have to attend classes sometimes at
wee hours at 1.30 a.m./ 2.30 a.m. IST.
12. We had an opportunity to interview the children and we realised
that the children are under the complete control of the 1st respondent and they
were willing to let go of all those facilities which they enjoyed and were
expressing their intention to continue with online classes. In matters of this
nature, the Court does not decide based on what the children say, since they
are in the midst of a huge turmoil in their life and hence, the duty is cast upon
this Court to decide based on best interest of the children.
13. As on today, the children are undergoing online schooling with
George Washington University. The maximum interaction that takes place is
with the teachers for a couple of hours, 4 days a week. That apart, all the
other activities in which these children were involved till 2020, has come to a
grinding halt. The children have lost physical contact with other children and
their physical activities have also virtually stopped. The children are also
slowly losing touch with the petitioner and we shudder to think as to what
impression they will be carrying about the petitioner, since they are in the
grips of their mother. The continuance of the present status, will damage the
progress of these children, not only in terms of academics, but more on their
emotional quotient. The children are now living in an environment, which is
alien to them, since the best part of their life, for nearly 13 years, was spent
only in the USA.
14. In our considered view, the best interest of the children can be
ensured only if the children return back to their native country viz., USA. The
children, who are naturalised American citizens, were brought up in the social
and cultural value milieu of USA and they are accustomed to the lifestyle,
language, customs, rules and regulations of their native country and they will
have their better avenues and prospects only if they return back to USA. The
children have not developed roots in India and hence, no harm will be caused
to them if they return back to USA.
15. This Court also takes into consideration the order passed by the
competent Court at USA granting permanent custody to the petitioner. The 1st
respondent, who submitted herself to the jurisdiction of the concerned Court,
for reasons best known to her, has started initiating variety of proceedings in
India and her faint attempt to initiate custody proceedings in India, also met
its waterloo, when her petition got dismissed. Hence, the 1st respondent
cannot be permitted to disregard the order passed by a competent Court in
USA and hold the children in her custody in India. We also take into
consideration the offer made by the learned Senior Counsel to the effect that
the 1st respondent can also accompany the children to USA and that the
petitioner is willing to accommodate the 1st respondent along with the
children.
16. In the light of the above discussion, we allow this Habeas Corpus
Petition in the following terms:
a) The 1st respondent is directed to take immediate steps to ensure
that and return back to USA and this
process shall be completed by the 1st respondent within a period of
six weeks from the date of uploading of this order in the High Court
website. The custody of the children shall be handed over to the
petitioner within a period of eight weeks from the date of
uploading of this order in the High Court website.
b) It is left open to the 1st respondent to accompany the children to
USA and in which case, the petitioner shall accommodate the 1st
respondent and provide her with all facilities and maintenance.
c) If the 1st respondent is not willing to stay at USA, there shall be
a direction to the 1st respondent to accompany the children to USA
and handover custody of the children to the petitioner.
d) The petitioner shall make immediate arrangements to get the
children relieved from the present school and admit the children in a
regular school and shall provide them with all
facilities/opportunities which they used to enjoy earlier.
e) If the 1st respondent requires custody or visitation rights of the
children, it is left open to the 1st respondent to work out her remedy
before the appropriate Court in USA and ;
f) Insofar as the matrimonial dispute between the petitioner and the
1st respondent is concerned, it shall be agitated independently in the
manner known to law and the observations made in this judgment
shall not come in the way of the 1st respondent. | While holding that the courts should always look into the best interest of the child in matters relating to custody, the Madras High Court has directed a mother to return her twin boys to their father in the US.
The division bench of Justice PN Prakash (since retired) and Justice Anand Venkatesh said the children are now living in an environment which is alien to them since for nearly 13 years, they were in the US.
"In our considered view, the best interest of the children can be ensured only if the children return back to their native country viz., USA. The children, who are naturalised American citizens, were brought up in the social and cultural value milieu of USA and they are accustomed to the lifestyle, language, customs, rules and regulations of their native country and they will have their better avenues and prospects only if they return back to USA. The children have not developed roots in India and hence, no harm will be caused to them if they return back to USA," the court said.
The court gave the ruling on a Habeas Corpus Petition filed by the father for custody of his minor sons, who were taken by the mother to India in 2020. The couple married according to Hindu rites and customs in 1999 and left for Virginia after 10 days of marriage. They were already US citizens. Their twin children, who were born in 2008, acquired US citizenship by birth.
However, later, some friction arose between the couple. In 2020, the wife left for India with the twin boys. Since she did not return, the petitioner husband sent a legal notice to which the wife replied and gave justification for her stay in India. Since the reconciliation process failed, the husband initiated divorce proceedings before the appropriate court in Virginia. The Circuit Court in Virginia gave sole custody of the children to the father.
In the meantime, the wife had approached the High Court in India seeking permanent custody of the minor children but the same was rejected. The High Court gave liberty to the wife to work out her remedies before the circuit court in Virginia. Since she failed to return with the boys, the petitioner filed a habeas corpus petition.
The court followed the decision of the Supreme Court in Rohit ThammanaGowda v. State of Karnataka and Others wherein the Apex Court observed that the question of 'what is the wish/desire' of the child is different and distinct from the question 'what would be the best interest of the child'. The court had to thus look into the welfare of the child.
The children told the division bench that they are willing to let go of the facilities in the USA and expressed their willingness to continue with online classes and be in India with their mother. The court however held that the current status would damage the progress of the children not only academically but also emotionally.
The court added that the woman could not be allowed to disregard the order passed by the foreign court and continue to hold the children in her custody in India. Thus, the court directed her to return the twin boys back to the USA and hand over their custody to the husband.
The court at the beginning of the order referred to William Wordsworth’s poem 'My Heart Leaps Up', particularly the famous quote “The Child is father of the Man”.
"The popular understanding of this phrase is that the behaviour and activities of a person’s childhood go a long way in building his personality. Children used to be enchanted with the joys of childhood and those thoughts evoke nostalgia when the child becomes a man. For Wordsworth, a rainbow in the sky made his heart leap. Alas, gone are the days when children used to enjoy their childhood and they are now helplessly made to witness the fight between their father and mother, because of their petty egos and it is painful to notice that in most of those fights, it is the children who are used as a pawn. The mental health of such a child takes a beating and how such a child is going to grow into a man and manage relationships, is a million dollar question. We were constrained to start this judgment with such a poignant note since we encounter two or three such cases on a daily basis while dealing with Habeas Corpus Petitions."
Case Title: KC v. UK and others
Case No: HCP No.1689 of 2022 |
CRIMINAL PETITION NO: 506 8, 5069, s076 AN D 5081 0F 2021
Kodam Danalakshmi, W/o K.Venkatram Narsaiah, Aged about 48 years, Occ
Housewife Fl/o Plot No..301, Sri Nirmalas Avas, Plot No.257 and 25-8, pragathi
1. The State of Telangana, rep. by its Public Prosecutor, High Court of Telangana,
2. Sri Challa Ramesh, S/o C.Rama Rao, Aged 63 years, Occ Retd. Pvt Employee,
Petition under Section 482 of Cr.P.C praying that in the circumstances stated
in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased
to quash the in C.C. No. 276 Of 2019 Before The Hon'ble Xll th Special [\4etropolitan
Magistrate R.R. Distrlct At Hastinapur against the petitioner/ Accused
Petition under Section 482 of Cr.P.C praying that in the circumstances stated
in the Memorandum of Grounds of Criminal Petition,the High Court may be pleased to
stay of all further proceedings including the appearance of the C.C. No. 276 Ot 2019
Before The Hon'ble Xll th Special Metropolitan Magistrate R.R. District At: Hastinapur
pending disposal of the Quash petition
Petition under Section 482 of Cr.P.C praying that in the circumstances stated
in the Memorandum of Grounds of Criminal Petition,the High Court may be pleased to
extend the interim orders dated. 07.07.2021 passed in Crl.P.No. 506812021 till further
orders in the interest of justice
Kodam Danalakshmi, W/o K.Venkatram Narsaiah, Aged about 48 years, Occ
Houiewlte R/o Plot No.301, Sri Nirmalas Avas, Plot No.257 and 258, Pragathi
1. The State of Telangana, rep. by its Public Prosecutor, High Court of Telangana,
2. Sri Challa Ramesh, S/o C.Rama Rao, Aged 63 years, Occ Retd Pvt Employee,
Petition under Section 482 of Cr.P.C praying that in the circumstances stated
in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased
to quash the in C.C. No. 134 Of 2019 Before The Hon'ble Vll th Special Metropolitan
Magistrate R.R. District At Hastinapur against the petitioner/ Accused
Petition under Section 482 of Cr.P.C praying that in the circumstances stated
in the Memorandum of Grounds of Criminal Petition,the High Court may be pleased to
stay of all further proceedings including the appearance of the C.C. No. 134 Of 2019
Before The Hon'ble Vll th Special lvletropolitan Magistrate R.R. District At: Hastinapur
pending disposal of the Quash petition
Petition under Sebtion 482 of Cr.P.C praying that in the circumstances stated
in the Memorandum of Grounds of Criminal Petition,the High Court may be pleased to
extend the interim orders dated. 07.07.2021 passed in Crl.P.No. 506912021 till further
orders in the interest of justice
Petition under Section 482 of Cr.P.C praying that in the circumstances stated
in the Memorandum of Grounds of Criminal Petition,the High Court may be pleased to
extend the interim orders dated. 07.O7.2021 passed in Crl.P.No. 506912021 till further
orders in the interest of lustice
Kodam Danalaks!-rmi, W/o K.Venkatram Narsaiah, Aged about 4g years, Occ
Housewife R/o plot No-301,.sri Nirmalas-Avas, plot "No.zs7-ino zsir, prigatni
. The Sfate of relangana, rep. by iE pubric prosecutor, High court of rerangana,
2. Sri Ctalla Ramesh, Sio C_Rama Rao, Aged 63 years, Occ Retd. pvt Employee,
Petition under section 482 of cr.P.c praying that in the circumstances stated
in the Memorandum of Grounds of criminal Petition, the High court may be pleased
to quash the in c.c. No. 274 of 2019 Before The Hon'ble Xll th special Metropolitan
Magistrate R.R. District At Hastinapur against the petitioner/ Accused
Petition under Section 482 of Cr. P.C praying that in the circumstances stated
in the Memorandum of Grounds of Criminal Petition,the High Court may be pleased to
stay of all further proceedings including the appearance of the C.C. No. 274 Of ZO19
Before The Hon'ble Xll th Special Metropolitan Magistrate R.R. District At: Hastinapur
pending disposal of the Quash petition
Petition under Section 482 of Cr. P.C praying that in the circumstances stated
in the l\,4emorandum of Grounds of Criminal Petition,the High Court may be pleased to
extend the interim orders da|ed.07.07.2021 passed in Crl.P.No. 507612021 till further
orders in the interest of justice
Kodam Danalakshmi, W/o K.Venkatram Narsaiah, Aged about 48 years, Occ
Housewife Rl/o Plot No.301, Sri Nirmalas Avas, Plot No.257 and 258, Pragathi
3 The State of Telangana, rep. by its Public Prosecutor, High Court of Telangana,
4. Sri Challa Ramesh, S/o C.Rama Rao, Aged 63 years, Occ Retd. Pvt EmPloYee,
Petition under section 482 ol Cr.P.C praying that in the circumstances stated
in the Memorandum of Grounds of criminal Petition, the High court may be pleased
to quash the in c.c. No. 275 of 2019 Before The Hon'ble Xll th Special Metropolitan
tvlagistrate R.R. District At Hastinapur against the petitioner/ Accused
Petition under Section 482 of Cr.P.C praying that in the circumstances stated
in the Memorandum of Grounds of Criminal Petition,the High Court may be pleased to
stay of all further proceedings including the appearance of the C.C. No. 275 of 2019
Before The Hon'ble Xll th Special Metropolitan Magistrate R.R. District At: Hastinapur
pending disposal of the Quash petiti6n
Petition under Section 482 ot Cr.P .C praying that in the circumstances stated
in the Memorandum of Grounds of Criminal Petition,the High Court may be pleased to
extend the interim orders da[ed.07.07.2021 passed in Crl.P.No. 508112021 till further
orders in the interest of justice
These Petitions coming on for hearing,upon perusing the Memorandum of
Grounds of Criminal Petition and upon hearing the arguments of Sri B MOHAN
,Advocate for the Petitioner in all Criminal Petitions and the Public Prosecutor on
behalf of the Respondent No.'1 in all Criminal Petitions and of Sri V.V.L.N.Sarma
Advocate for the Respondent No. 2 in all Criminal Petitions
The Court made the following: ORDER
CRIMINAL PETITION Nos.5O58. 5O69, 5O76 and
Since facts of the case and the issue involved in all these
Criminal Petitions are similar/ all these Criminal Petitions are taken
up together and are being disposed of by this common order.
2. Criminal Petition No.5069, 5076, 5081 and 5068 of 202I,
under Section 482 of the Code of Criminal Procedure, 1973 (for
short, 'Cr.P.C.') are filed by the petitioner/A.2 seeking to quash the
proceedings against her in C.C.No.134 of 2019 on the file of VII
Special Metropolitan Magistrate, Ranga Reddy District, at
Hastinapur and C.C.Nos.274,275 and 276 of 2019 on the file of XiI
Special Metropolitan Magistrate, Ranga Reddy District, at
Hastinapur, respectively.
3. Heard Sri B.Mohan, learned counsel for the petitioner/A.2,
learned Assistant Public Prosecutor for the respondent No.1/State,
Sri V.V.L.N. Sarma, learned counsel for the respondent No.2/
complainant, in all the Criminal Petitions and perused the record.
4, The learned counsel for the petitioner/A.2 would contend that
the petltioner, who is arrayed as A.2 in the subject C.Cs, is not a
signatory to the subject cheques and she is falsely implicated in the
sub{ect C.Cs. No ingredients constituting the offence under Section
13S of Negotiable Instruments Act, 1BB1 (for short "N.I.Act") are
made out against the petitioner/A.2 and therefore, continuation of
proceedings against the petitioner/A.2 is nothing but abuse of
process of law. In support of his contentions'
upon the decisions reported in Alka Khandu Avhad vs' Amar
Syamprasad Mishra and otherst and Mrs'
M/s. Sheth Developers Pvt' Ltd' and anothel and ultimately
prayed to allow the Criminal Petitions as
5. On the other hand, the learned counsel for
complainant conceded that the petitioner/A.2
the subject cheques but contended that the
of the money transactions and handing over of the
It is submitted that the petitioner/A.2 is maintaining
with her husband i.e, A.1 and the subject cheques relate
joint account only. The petitioner/A'2 has knowledge of the subject
transactions and most of the amounts were paid to her
only. In view of these circumstances, the Courts below rightly
cognizance of the offence under Section 138 of N'I'Act against
petitioner/A.2 along with A'1. It is further submitted that the trial
in the subject C.Cs has already commenced and hence' there
irregularity in proceeding against the petitioner/A'2 for the offence
under section 138 of N.I.Act and ultimately prayed to dismiss
Clriminal Petir:ion s.
6. The learned Assistant Public Prosecutor supported the
arguments advanced by the learned counsel for respondent No'2/
complainantandultimatelyprayedtodismisstheCriminalPetitions.
7. In view of the above submissions made by both sides, the
point for determination in these Criminal petitions
"Whether the proceedings against the
petitioner/A.2 in C.C.No.I34 of 2O19 on the
District, at Hastinapur and C.C.Nos.274/ 275 and 276
of 2O79 on the file of XII Special Metropolitan
Magistrate, Ranga Reddy District, at Hastinapurt are
8. POINT: As seen from the material placed on record,
petitioner is arrayed as A.2 in the subject
the file of VII Special tvletropolitan Magistrate, Ranga Reddy
District, at Hastinapur and c.c,Nos.274,27s and
the file of XU Special Metropolitan Magistrate, Ranga Reddy
District, at Hastinapur. The Courts below took cognizance
said cases for the offence under Sections 138 of N.I.Act
and his wife i.e, petitioner/A.2. The main contention of the
counsel for the petitioner/A.2 is that the proceedings against
petitioner/A.2 in the subject C.C.s are Iiable to be quashed,
inasmuch as she is merely a joint account holder and not a
signatory to the subject cheques.
9. Here, it is apt and appropriate to extract Secilon 138 of
"Secfron 138 - Dishonour of cheque for insufficiency,
Where any cheque drawn by a person on an account
maintained by him with a banker for payment of any amount
of money to another person from out o'f that account for the
discharge,. in whole or in part, of any debt or other tiability, is
returned by the bank unpaid, either because of the amount
of money standing to the credit of that account is insufficient
to ioioi, the chique or that it exceeds the amount arranged
ti ae paia from ihat account by an agreement.made with
tn"t iant , such person shalt be deemed to have
committetd an offence and shall, without preiudice to any
other provisions of this Act, be punished with imprisonment
fi, u i"r* which may be extended to two years, or with fine
which may extend to twice the amount of the cheque, or
with both': Provided that nothing contained in this section
(a) the cheque has been presented to the bank within a
of six months from the date on which it is drawn or
within the period of its validity, whichever is earlier;
(b) the payee or the hotder in due course of the cheque, as
ih" ,ut" may be, makes a demand for the payment of the
said amount of money by giving a notice in writing, to the
drawer of the cheque, within thirty days of the receipt of
information by him from the bank regarding the return of the
(c) the drawer of such cheque fails to make the payment of
tne said amount of money to the payee or, as the case may
be, to the holder in due course of the cheque, within fifteen
days of the receipt of the said notice'
As per the mandate given under Section 138 of N.I Act, where any
cheque drawn by a person on an account maintained by him with a
banker for payment of any amount of money to another person
from out of that account for the discharge, in whole or in part, of
any debt or other liability, is returned by the bank unpaid, either
because of the amount of money standing to the credit of that
account is insufficient to honour the cheque or that it exceeds the
amount arranged to be paid from that account by an agreement
made with that bank, such person shall be deemed to have
committed an oFfence.
tO. ln Atka Khandu Avhad's case (supra), cited by the learned
counsel for the petitioner/A.2, the Hon'ble Apex Court observed as
"Para 7.: On a fair reading of Section 138 of the NI Act,
before a person can be prosecuted, the foilowing
conditions are required to be satisfied:
i) that the cheque is drawn by a person and on an
account maintained by him with a banker;
ii) for the payment of any amount of rnoney to another
person from out of that account for the discharge, in
whole or in part, of any debt or other liability; and
iii) the said cheque is returned by the bank unpaid,
either because of the amount of money standing to the
credit of that account is insufficient to honour the
cheque or that it exceeds the amount arranged to be
paid from that account.
Therefore, a person who is the signatory to the cheque
and the cheque is drawn by that person on an account
maintained by him and the cheque has been issued for
the discharge, in whole or in part, of any debt or other
liability and the said cheque has been returned by the
bank unpaid, such person can be said to have committed
an offence. Section 138 of the NI Act does not speak
about the joint liability. Even in case of a joint liability, in
case of individual person, a person other than a person
who has drawn the cheque on an account maintained by
him, cannot be prosecuted for the offence Under Section
138 of the NI Act. A person might have been jointly
liable to pay the debt, but if such a person who might
have been liable to pay the debt jointly, cannot be
prosecuted unless the bank account is jointly maintained
and that he was a signatory to the cheque.
11. In Mrs, Aparna A. Shah's case (2 supra), cited by the
learned counsel for petitioner/A.2, the Hon'ble Apex Court took the
view that under Section 138 of the N.I. Act, it is only the drawer of
the cheque who can be proceeded. In the said case, the husband
had drawn the cheque on the account, which was being jointly
maintained by him and his wife, The Hon'ble Supreme Court held
that in case oF issuance of a cheque from joint account, a joint
account holder cannot be prosecuted unless the cheque has been
signed by each and every person who has a joint account holder.
Hon'ble Supreme Court observed as follows: ,,
"PArc-E: We also hold that under Section 138 of the
N-i. Act, in case of issuance of cheque from ioint
accounts, a joint account holder cannot be prosecuted
unless tie iheque has been signed by each and every
person who is a joint account hotder' The said principle
an exception to Section 141 of the N'L Act which
would have no application in the case on hand' The
proceedings filed under Section 138 cannot be used as
arm twisting tactics to recover the amount alleqedly
due from the appellant' It cannot be said that the
complainant has no remedY against the appellant but
certainly not under Section 138' The culpability
attached to dishonour of a cheque can, in no case
"except in case of Section 141 of the N'L Act" be
extended to those on whose behalf the cheque is
issued. This Court reiterates that it is only the drawer of
the cheque who can be made an accused in any
proceeding under Section 138 of the Act. Even the High
Court has specificatly recorded the stand of the
appellant that she was not the signatory of the cheque
but rejected the contention that the amount was not
due and payabte by her solely on the ground that the
trial is in progress. It is to be noted that only after
issuance of process, a person can approach the High
Court seeking quashing of the same on various grounds
available to him. Accordingly, the High Court was
clearty wrong in hotding that the prayer of the appellant
cannot even be considered. Further, the High Court
itself has directed the Magistrate to carry out the
process of ad mission/den ial of documents. In such
circumstances, it cannot be concluded that the trial is in
L2. In the instant case, it is evident from the entire material
placed on record, particularly, the complaints filed by the
respondent No.2/complainant under Section 138 of N.I. Act r/w
Sec.200 Cr.P.C, the petitioner/A.2 is merely a jolnt account holder
and she is not the signatory to the subject cheques. On the other
hand, it is culled out from the record that though the account
relating to the disputed cheques is a joint account, only one
signature, which appears to be of A.1, are seen on those disputed
cheques. Penal provisions should be construed strictly, but not in a
routine/casual manner. The words used in Section 138 of N.I.Act
person, except the contingencies
learned counsel for the petitioner/A,2
but not a signatory to the subject
until he/she is a signatory to the
cheque. Further, the commencement
C.Cs cannot be a ground to continue the proceedings
below erred in taking cognizance
the petitioner/A.2, particularly, when
disputed cheques, So the contentions
respondents do not merit consideration. In view of these
circumstances, when no ingredients
are made out against the petitioner/A.2,
proceedings against the petitioner/A.2
is abuse ot process of law.
Therefore, the proceedings in the subject C.Cs against the
be quashed.
13. In the result, Criminat petition Nos.5069, 5076, 5081
5068 of 202I, are allowed and the proceedings against
petitioner/A.2 in C.C.No.134 of 2OI9 on the file of VII Special
C.C.Nos.274, 275 and 276 of 2019 on the fite of XII Special
hereby quashed.
Miscellaneous Petitions, if any, pending in these Criminal
Petitions shall stand closed.
ifor His Lordships Kind Perusal)
3. One CC to SRl. B MOHAN Advocate [OPUCI
5. One CC to SRl. WLN Sharma Advocate [OPUC]
o.ffiEL.n. copies.
7. The Under Secretary, Union of lndia, Ministry of Law' Justice
9. The Secretary, fetangana High Court Advocates | In a case pertaining to dishonor of cheque, the Telangana High Court recently ruled that a joint account holder who is not a signatory to the disputed cheque shall not be prosecuted under Section 138 of Negotiable Instrument Act, 1981. Relying on the Supreme Court ruling in Alka Khandu Avhad vs. Amar Syamprasad Mishra, Justice Shameem Akhtar held that a mere joint account holder...
In a case pertaining to dishonor of cheque, the Telangana High Court recently ruled that a joint account holder who is not a signatory to the disputed cheque shall not be prosecuted under Section 138 of Negotiable Instrument Act, 1981.
Relying on the Supreme Court ruling in Alka Khandu Avhad vs. Amar Syamprasad Mishra, Justice Shameem Akhtar held that a mere joint account holder but not a signatory cannot be prosecuted under Section 138 of NI Act, unless and until his/ her signatures are on the cheque.
Facts
A joint account holder/Petitioner moved the High Court by filing a Criminal petition under Section 482 of the Code of Criminal Procedure, 1973 to quash the trial proceedings against her in criminal cases registered pursuant to dishonor of a cheque drawn by her husband, with whom she held a joint account.
Advocate B. Mohan for the Petitioner who is Accused No. 2 contended that she is not a signatory to the subject cheques and she is falsely being implicated. He relied on the Supreme Court judgments Alka Khandu Avhad v. Amar Syamprasad Mishra and Ors., AIR 2021 SC 1616 and Mrs. Aparna A. Shah v. M/s Sheth Developers Pvt. Ltd. & Anr., AIR 2013 SC 3210 to contend that the criminal proceedings against the petitioner be quashed.
Advocate V.V.L.N. Sarma for the complainant contended that the the petitioner is maintaining a joint account with her husband and the subject cheques are drawn from the joint account. He further contended that petitioner is aware of the money transactions and handing over of the subject cheques.
Section 138 of the Negotiable Instrument Act
Section 138 deals with dishonour of cheque for insufficiency of funds in the account. As per the provision, where any cheque drawn by a person on account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge of any debt, is returned by the bank unpaid, because the account has insufficient funds to honour the cheque, such person shall be deemed to have committed an offence and is punishable under Section 138 of the Negotiable Instrument Act.
The Court's holding
The court relied upon the decision in Alka Khandu Avhad (supra) as cited by the petitioner in which the Apex Court has stated that,
"Section 138 of the NI Act does not speak about the joint liability. Even in case of a joint liability, in case of individual persons, a person other than a person who has drawn the cheque on an account maintained by him, cannot be prosecuted for the offence under Section 138 of the NI Act. A person might have been jointly liable to pay the debt, but if such a person who might have been liable to pay the debt jointly, cannot be prosecuted unless the bank account is jointly maintained and that he was a signatory to the cheque."
Justice Shameem Akhter also relied on the decision in Mrs. Aparna A. Shah (supra), where the Apex Court had held that under Section 138 of NI Act, it is only the drawer of the cheque that can be proceeded against. A joint account holder cannot be prosecuted unless the cheque has been signed by each and every person.
Based on the extracts from the aforementioned judgments, the Court in the instant matter laid down that the petitioner who is the wife of the signatory of the cheque is merely a joint account holder and she is not the signatory to subject cheques.
The Court further observed that penal provisions are to be construed strictly and not in a routine/casual manner.
"The words used in Section 138 of N.I. Act that "such person shall be deemed to have committed an offence," refers to a person who has drawn the cheque, but not any other person, except the contingencies mentioned under Section 141 of the N.I.Act," the Court said.
The petition was thus allowed and the criminal proceedings against the petitioner were quashed.
Case Title: Kodam Danalakshmi v. State of Telangana |
1. This is a petition under Section 482 Cr.P.C. for quashing of FIR
No.0286/2019, under Section 498A/323/341/506/34 IPC, registered at
Police Station Safdarjung Enclave, Delhi, and all proceedings emanating
therefrom.
2. The brief facts of the case are that the petitioner No.1 and respondent
No.2 got married on 6.12.2014 according to Hindu rites and ceremonies and
they lived together as wife and husband with each other. One baby girl was
born out of the said wedlock on 2.9.2016. After the marriage, the disputes
and differences arose between them and they started living separately since
15.10.2019. On 18.10.2019, the respondent No.2 got the above said FIR
registered against the petitioners.
3. Counsel for the petitioners submits that during the pendency of the
trial, the parties have settled the matter amicably in terms of the
Settlement/MOU dated 16.7.2021. Copy of the said settlement is placed on
record. Accordingly, the petition under Section 13-B(2) of the HMA Act
was allowed and the marriage of the petitioner No.1 and respondent No.2
was dissolved vide decree dated 29.09.2021 passed by the Principal Judge,
Family Court, South Saket Courts. New Delhi. The copy of the decree is
already on record.
4. Petitioners are present in Court today through VC. Respondent No.2
is also present in Court today and she has been identified by the IO. I have
interacted with the parties and they submit that they have settled their
disputes. Respondent No.2 admits that she has settled the matter amicably
with the petitioners. She further submits that the settlement/compromise has
taken place voluntarily, without any force, pressure or coercion.
Respondent No.2 submits that nothing remains to be adjudicated further
between them and she has no objection if the FIR in question is quashed.
5. It is submitted by the counsel for the petitioners that the visitation
rights of the girl child have not been given to the petitioner-husband. He
further submitted that at least respondent no.2 may be directed to sent e-mail
every month informing about the well-being of the girl child. Respondent
no.2 who is present though VC submitted that she has no objection to the
same and she would be sending e-mail to the petitioner-husband every
month keeping him informed about the well being of the girl child.
5. Learned APP for the State submits that in view of the settlement, the
State has no objection if the FIR in question be quashed.
6. Keeping in view the above facts and circumstances, since the matter
has been amicably settled between the parties, no useful purpose will be
served by keeping the case pending. It will be nothing but abuse of the
process of law. Consequentially, this petition is allowed and FIR
No.0286/2019, under Section 498A/323/341/506/34 IPC, registered at
Police Station Safdarjung Enclave, Delhi, and the proceedings emanating
therefrom shall stand quashed.
7. During the course of VC petitioner no. 5 has appeared through VC for
his identification by the IO in his vest. The conduct of the petitioner no.5 in
appearing before the Court in his vest is totally unacceptable. Even though
the proceedings were being conducted through VC he should have appeared
before the Court in proper clothes. Therefore, costs of Rs.10,000/- is
imposed upon petitioner no.5 for his aforesaid conduct, to be deposited with
the Delhi High Court Legal Services Committee within a week from today
7. The present petition stands disposed of accordingly. | The Delhi High Court has recently imposed Rs. 10,000 cost on a party for appearing in vest during the virtual hearing, observing that such a conduct was totally unacceptable. "During the course of VC petitioner no. 5 has appeared through VC for his identification by the IO in his vest. The conduct of the petitioner no.5 in appearing before the Court in his vest is totally unacceptable....
The Delhi High Court has recently imposed Rs. 10,000 cost on a party for appearing in vest during the virtual hearing, observing that such a conduct was totally unacceptable.
"During the course of VC petitioner no. 5 has appeared through VC for his identification by the IO in his vest. The conduct of the petitioner no.5 in appearing before the Court in his vest is totally unacceptable. Even though the proceedings were being conducted through VC he should have appeared before the Court in proper clothes," Justice Rajnish Bhatnagar ordered
The Court added that the cost imposed shall be deposited with the Delhi High Court Legal Services Committee within a week by the party.
The Court was dealing with petition seeking quashing of FIR registered concerning a matrimonial dispute registered under Sections 498A, 323, 341, /506 and 34 of the IPC.
The petitioner no 1 (husband) and respondent no 2 (wife) got married on 6.12.2014 according to Hindu rites and ceremonies. After differences arose between them, they started living separately since 15.10.2019 and the FIR was registered thereafter.
During the course of hearing, the Court was apprised by the petitioners that during the pendency of the trial, the parties had settled the matter amicably and that the petition under Section 13-B(2) of the Hindu Marriage Act was allowed and the marriage was dissolved by way of a decree passed by the family court.
The petitioners also submitted that the visitation rights of the girl child which were not given to the petitioner-husband and thus requested that the wife may be directed to send an e-mail every month informing him about the well-being of the girl child.
On this, the wife informed the Court that she had no objection to the same and would be sending e-mail to the husband every month keeping him informed about the well being of the girl child.
"Keeping in view the above facts and circumstances, since the matter has been amicably settled between the parties, no useful purpose will be served by keeping the case pending. It will be nothing but abuse of the process of law. Consequentially, this petition is allowed and FIR No.0286/2019, under Section 498A/323/341/506/34 IPC, registered at Police Station Safdarjung Enclave, Delhi, and the proceedings emanating therefrom shall stand quashed," the Court said while quashing the FIR.
Case Title: SAURABH GOGIA AND OTEHRS v. STATE AND ANR. |
This petition is filed under Section 397 read with Section
401 of Cr.P.C., praying to set aside the order passed by the
Special JMFC (Sales Tax), Bengaluru in C.Misc.No.715/2004
dated 26.07.2012, call for Trial Court records and grant any
other relief as deems fit in the facts and circumstances of the
2. Heard the learned counsel appearing for the
petitioner and the learned High Court Government Pleader
appearing for the respondent.
3. The factual matrix of the case of the prosecution is
that the petitioner-firm is a proprietorship concern engaged in
the catering business. The petitioner – firm is also registered
under the provisions of the Karnataka Sales Tax Act, 1957 and
Central Sales Tax Act, 1956. It is also contended that the firm
is not earning any profit on sale of food in the Canteens such
sale is exempted under V schedule under entry 22 of the old
schedule and entry No.6 of the present V schedule. If the goods
are not liable to be taxed under the Act, such goods are brought
under Section 8 of the K.S.T. Act and such goods are exempt
from payment of tax. The petitioner also maintained the Books
of Accounts, as per the provisions of the KST Rules. However,
the assessing authority has concluded the assessment order for
the Assessment Year 2001-2002 vide order dated 25.02.2004
and the assessing authority comes to the conclusion that the
petitioner is liable to pay Sales Tax at 12% on sale of food
articles and accordingly levied a tax of Rs.35,25,376/-. In view
of the order passed under Section 12(3) of the KST Act, the
respondent has issued the demand notice in Form 6 and
demanded the said amount for the assessment year 2001-2002.
The respondent has granted 21 days time to pay the arrears of
tax. On account of non-payment, petition was filed under
Section 13(3)(b) of the KST Act to recover the said amount. In
order to recover the said amount, the learned Special JMFC
(Sales Tax) Court vide order dated 26.07.2012, issued an order
through FLW through Commissioner, BBMP to attach and effect
encumbrance of amount mentioned in FLW to and for property
bearing No.14, Khatha 4/8 situated at Beratta Agrahara, Begur
Hobli. Hence, the present Revision Petition is filed before the
4. The main contention of the learned counsel
appearing for the petitioner before this Court is that the learned
Special JMFC (Sales Tax) Court ought not to have issued the
order of attachment of property through BBMP Commissioner.
The learned counsel for the petitioner brought to the notice of
this Court that Section 421 of Cr.P.C., for Warrant for levy of
fine, particularly, clause (b) of Section 421, wherein, it is
specifically mentioned issue a warrant to the Collector of the
District, authorizing him to realize the amount as arrears of land
revenue from the movable or immovable property or both, of the
defaulter. Here is a case of issuing an order of attachment
through the BBMP Commissioner and he is not an authorized
officer to attach the property.
5. Per contra, the learned High Court Government
Pleader appearing for the respondent would submit that when
the amount was not paid, the order was passed by the learned
Special JMFC (Sales Tax) Court, Bengaluru. Hence, there are no
grounds to allow the petition.
6. Having heard the respective counsel and also on
perusal of the material available on record, no dispute with
regard to the fact that the recovery proceedings is initiated
based on the order. When the petition is filed before the learned
Special JMFC (Sales Tax) Court invoking Section 421 of Cr.P.C.,
issued the warrant and the same is as per Section 421(2) of
Cr.P.C., which says only the District Magistrate is empowered to
attach the property not the Commissioner, BBMP. When such
being the case, the order requires an interference of this Court
since the Commissioner of BBMP., has no any authority to attach
the property as ordered by the Special JMFC (Sales Tax) Court
and the same can be enforced under Section 421(1)(b) of
Cr.P.C, through the collector of the District. Hence, it requires
an interference of this Court.
7. In view of the discussions made above, I pass the
The petition is allowed. The order passed by the Special
JMFC (Sales Tax), Bengaluru in C.Misc.No.715/2004 dated
26.07.2012, is hereby set aside. The respondent is given liberty
to seek appropriate orders invoking Section 421(1)(b) of the | The Karnataka High Court has held that the District Magistrate is empowered to attach the property and not the Commissioner of Bengaluru Mahanagara Palike Commissioner (BBMP). The single bench of Justice S.P.Sandesh has observed that the Commissioner of BBMP, has no authority to attach the property as ordered by the Special JMFC (Sales Tax) Court and it ought to be enforced...
The Karnataka High Court has held that the District Magistrate is empowered to attach the property and not the Commissioner of Bengaluru Mahanagara Palike Commissioner (BBMP).
The single bench of Justice S.P.Sandesh has observed that the Commissioner of BBMP, has no authority to attach the property as ordered by the Special JMFC (Sales Tax) Court and it ought to be enforced under Section 421(1)(b) of Cr.P.C, through the collector of the District.
The petitioner/assessee, a proprietorship concern has been engaged in the catering business. The petitioner is also registered under the provisions of the Karnataka Sales Tax Act, 1957 (K.S.T. Act) and Central Sales Tax Act, 1956.
Counsel for the petitioner has contended that the firm is not earning any profit on sale of food in the Canteens such sale is exempted. If the goods are not liable to be taxed under the Act, such goods are brought under Section 8 of the K.S.T. Act and such goods are exempt from payment of tax.
However, the assessing authority has concluded that the petitioner is liable to pay Sales Tax at rate of 12% on sale of food articles and accordingly levied a tax of Rs.35,25,376/-.
In view of the order passed under Section 12(3) of the KST Act, the respondent/department has issued the demand notice in Form 6 and demanded the amount for the assessment year 2001-2002.
The department has granted 21 days time to pay the arrears of tax. On account of non-payment, a petition was filed under Section 13(3)(b) of the KST Act to recover the said amount. In order to recover the amount, the Special JMFC (Sales Tax) Court issued an order through the Commissioner, BBMP to attach and effect encumbrance of the amount.
Counsel for the petitioner has urged that the Special JMFC (Sales Tax) Court ought not to have issued the order of attachment of property through BBMP Commissioner. Section 421 of Cr.P.C., for Warrant for levy of fine, particularly, clause (b) of Section 421, wherein, it is specifically mentioned issue a warrant to the Collector of the District, authorising him to realise the amount as arrears of land revenue from the movable or immovable property or both, of the defaulter.
On the other hand, a Government Pleader appearing for the department has submitted that when the amount was not paid, the order was passed by the Special JMFC (Sales Tax) Court, Bengaluru. Hence, there are no grounds to allow the petition.
The High Court thus allowed the petition against the impugned order passed by the Special JMFC (Sales Tax).
Case Title: M/s. Prashanthi Affiliates Versus Deputy Commissioner of Commercial Taxes
Case No.: Criminal Revision Petition No.921/2012
Counsel For Petitioner: Advocate Atul K.Alur
Counsel For Respondent: HCGP K.S.Abhijit
ClickHere To Read/Download Order |
This application is filed u/s 439 of the Code of Criminal
Procedure seeking regular bail.
2. The applicant is the sole accused in Crime No.35/2023
of Kothamangalam Police Station. The offences alleged are
punishable under Sections 354, 354A of Indian Penal Code,
Sections 9(I)(n) read with 10, 6 read with 5(I)(n) of the
Protection of Children from Sexual Offences Act.
3. The prosecution case, in short, is that, on 02.05.2017,
05.05.2017 and 07.05.2017, the applicant sexually assaulted the
victim who was then a minor and thereby committed the offences.
4. I have heard Sri. Navaneeth N. Nath, the learned
counsel for the applicant and Sri. V.S Sreejith, the learned Public
Prosecutor. Perused the case diary.
5. The learned counsel for the applicant submitted that
the applicant is innocent and has been falsely implicated in the
present case. The counsel further submitted that no materials are
on record to connect the applicant with the alleged crime; hence,
B.A No. 1883 of 2023
he is entitled to get bail. On the other hand, the learned Public
Prosecutor submitted that the alleged incident occurred as a part
of the intentional criminal acts of the applicant, and he is not
entitled to bail at this stage.
6. The applicant was remanded to judicial custody on
03.02.2023. The victim is the sister-in-law of the applicant. The
marriage of the applicant with the sister of the victim was
solemnized on 24.03.2016. According to the victim, while her
sister was hospitalized in connection with the delivery, the
applicant sexually assaulted her at her house on three occasions.
The victim gave a complaint to the police for the first time on
29.12.2022, that is about more than five years after the alleged
incident. A crime was registered against the applicant on the
complaint of the victim as Crime No. 2139/2022 on 22.12.2022.
The offence alleged in the said crime was under Sections 324 and
354 of Indian Penal Code. Annexure-A3 is the FIS given by the
victim in the said crime. I went through Annexure-A3. There is
absolutely no allegation of rape alleged to have been taken place
in the year 2017. It appears that on the next day, a crime was
registered against the victim on the complaint of the applicant for
B.A No. 1883 of 2023
the offence punishable under Section 326 of Indian Penal Code as
Crime No. 2148/2022. The copy of the FIR is Annexure-A4. It
was thereafter, on 29.12.2022, the applicant gave a statement to
the police in Crime No.2139/2022 raising the present allegations.
All these sequence of events give rise to doubt as to the
fabrication of the prosecution case. It is true that, the petitioner
is a habitual offender and he is involved in another ten cases.
However, considering the fact that the prosecution version is
doubtful and the applicant has been in custody for the last more
than 35 days, I am inclined to grant bail to the applicant. Hence,
the applicant is entitled to be released on bail.
In the result, the application is allowed on the following
(i) The applicant shall be released on bail on executing a
bond for Rs.1,00,000/- (Rupees One lakh only) with two solvent
sureties for the like sum each to the satisfaction of the
(ii) The applicant shall fully co-operate with the
(iii) The applicant shall appear before the investigating
B.A No. 1883 of 2023
officer between 10.00 a.m and 11.00 a.m. every Saturday until
further orders. He shall also appear before the investigating officer
as and when required.
(iv) The applicant shall not commit any offence of a like
nature while on bail.
(v) The applicant shall not attempt to contact any of the
prosecution witnesses, directly or through any other person, or in
any other way try to tamper with the evidence or influence any
witnesses or other persons related to the investigation.
(vi) The applicant shall not leave the State of Kerala
without the permission of the trial Court.
(vii) The application, if any, for deletion/modification of the
bail conditions or cancellation of bail on the grounds of violating
the bail conditions shall be filed at the jurisdictional court. | The Kerala High Court on Wednesday granted bail to a person accused of offence under the Protection of Children from Sexual Offences Act (POCSO Act), on doubting the veracity of the prosecution version.
Justice Kauser Edappagath took note that the victim in the case had given a complaint to the police for the first time after more than five years after the alleged incident.
"There is absolutely no allegation of rape alleged to have been taken place in the year 2017. It appears that on the next day, a crime was registered against the victim on the complaint of the applicant for the offence punishable under Section 326 of Indian Penal Code as Crime No. 2148/2022".
The factual matrix reveals that the petitioner had allegedly sexually assaulted his sister in law on three occasions when his wife had been hospitalized in connection with her delivery. A crime was accordingly registered against him alleging offences under Sections 354, and 354A IPC, and Sections 9(I)(n) read with Section 10 and Section 6 read with Section 5(I)(n) of the POCSO Act.
It was contended by Advocate Navaneeth N. Nath on behalf of the petitioner that the petitioner had been falsely implicated, and that there were no materials on record to connect the petitioner/applicant with the alleged crime.
Public Prosecutor V.S. Sreejith on the other hand, argued that the alleged incident occurred as a part of the intentional criminal acts of the petitioner, and he would thus not be entitled to bail.
The Court took note that the victim had given the complaint only on December 29, 2022, for the first time, more than five years after the alleged incident pursuant to which the crime was registered against the petitioner. However, it further noted that there was no allegation of rape alleged to have been taken place in 2017. Subsequently, the petitioner had also complained against the victim pursuant to which a crime was registered against the latter. The Court noted that it was thereafter that the petitioner gave a statement to the police in the crime registered against him.
"All these sequence of events give rise to doubt as to the fabrication of the prosecution case. It is true that, the petitioner is a habitual offender and he is involved in another ten cases. However, considering the fact that the prosecution version is doubtful and the applicant has been in custody for the last more than 35 days, I am inclined to grant bail to the applicant," the Court held.
It thus declared that the petitioner shall be released on bail on executing a bond for Rs.1,00,000/- with two solvent sureties for the like sum each to the satisfaction of the jurisdictional Magistrate/Court.
Other bail conditions were also imposed by the Court.
Advocates Sanel Cherian and K.S. Stejo also appeared on behalf of the petitioner in this case.
Case Title: XXX v. State of Kerala |
1. The present bail application has been filed by the petitioner
under Section 439 Cr.P.C. seeking regular bail in case FIR No. 33/2018
under Section 9/21/25A of NDPS Act & under Section 471 IPC &
Section 14 of the Foreigners Act registered at P.S. Crime Branch,
2. Briefly stated, the facts of the case are that on 09.02.2018, a
secret information was received by ASI Anil Kumar that one person
namely Vinay Sharma would come at about 4:30 PM to supply Pseudo
Ephedrine to a person near Chanakya Market Bus Stand, Janakpuri,
Delhi. On this information, a raid was conducted and one accused
namely Vinay Sharma was apprehended and 10 Kg. Pseudo-Ephedrine
was recovered from his possession. On the basis of above recovery,
the present FIR was registered. During investigation, accused Vinay
Sharma was arrested and he was interrogated and he disclosed that he
has procured the recovered substance from one Piyush of Jirakpur near
Chandigarh. It was also disclosed by the arrested accused that he can
take the police to Chandigarh and Jirakpur to point out the places,
where the supplier namely Piyush used to meet him to deliver the drugs
to him.
3. During PC remand accused Vinay Sharma was taken to Jirakpur,
Punjab to apprehend the supplier of recovered pseudo-ephedrine. On
this, a call was made on the phone of source of contraband namely
Piyush Srivastava by accused Vinay Sharma and he was asked to meet
him near Sethi Dhaba, Jirakpur, Punjab. On this, source Piyush came
near Sethi Dhaba, Ambala road, Jirakpur and he was apprehended from
there. After serving notice under section 50 NDPS Act, cursory search
of accused Piyush was conducted but nothing incriminating thing could
be recovered from his possession. But he confessed to have delivered
BAIL APPLN. 2677/2020 Page 2 of 9
the recovered substance to accused Vinay Sharma. On this, accused
Piyush Srivastava was arrested in the present case and intimation
regarding his arrest was conveyed to local police station. He was
interrogated there but he did not co-operate and did not disclose as to
from where he has procured the recovered pseudo-ephedrine. After
this, he was brought to Delhi and again subjected to sustained
interrogation. During interrogation he disclosed that he has procured
the recovered Pseudo Ephedrine from one Praveen of Chandigarh, who
is known to him as he used to purchase medicine from him. Accused
Piyush also disclosed that he has kept the remaining quantity of Pseudo
Ephedrine which he procured from Praveen Kumar in his office at
Panchkula, Haryana. He told that he didn't know the complete address
of Praveen but he can help police in tracing from their meeting points.
4. Four days PC remand of accused Piyush Srivastava was obtained
and he was taken to Zirakpur, Punjab and Chandigarh at the address of
the alleged source namely Parveen Gupta but Parveen Gupta was not
found present there. On this, a notice was served to Mohan Lal Gupta
(brother of alleged source Parveen Gupta). Search of the office of the
accused situated at Phase-I, Industrial Area, Panchkula, Haryana was
also made but nothing incriminating could be recovered from there.
One day more PC remand of accused Piyush Srivastva was obtained
and on his pointing out 1.5 Kg. Pseudo-ephedrine was recovered on
16.02.2018 from Singhu Border, Narela, Delhi.
BAIL APPLN. 2677/2020 Page 3 of 9
5. Thereafter, the present petitioner was apprehended on 16.02.2018
at the instance of accused Piyush Srivastava and 3.5 Kg. Pseudo-
ephedrine and 15 gm. Cocaine was recovered from his possession.
The petitioner was arrested and his passport and Visa were got verified
from the External Affairs Ministry and it was found that Visa sticker on
the passport of the petitioner was fake. Therefore, Section 14 Foreigner
Act and 471 IPC were added in the present case.
6. I have heard the Ld. counsel for the petitioner, Ld. APP for the
State, perused the Status Report and the records of this case.
7. It is submitted by the Ld. counsel for the petitioner that the
petitioner was arrested on the disclosure statement of the co-accused
and has been falsely implicated. He further submitted that the petitioner
is married to an Indian woman and from the said marriage he is having
two kids. It is further submitted by the Ld. counsel for the petitioner
that three co-accused are already on bail and the charges have been
framed. He further submitted that the petitioner has got root in the
society and he has family to support and rigors of Section 37 are not
applicable in this case. He further submitted that the petitioner is in
J.C. since 16.02.2018.
8. On the other hand, it is submitted by the Ld. APP for the State
that the allegations against the petitioner/accused are grave and serious
in nature and petitioner is not entitled to bail as he is dealing in drugs
BAIL APPLN. 2677/2020 Page 4 of 9
and narcotics substances. She further submitted that the petitioner is
not entitled to parity with other co-accused persons as the co-accused
persons who have been released on bail have not been charged under
the offence of forgery and cheating.
9. The offences alleged against the petitioner are U/s 9A/25 A of the
NDPS Act. First and foremost question is whether rigors U/s 37 of the
NDPS Act applies to the case of the petitioner or not.
10. The present petitioner is facing prosecution for charges U/s 9A
and 25 A of the NDPS Act and hence obviously his case would not be
covered U/s 37 of the NDPS Act. Moreover, as far as Section 9A
which deals with controlled substance is concerned, there is no
categorization of small quantity or commercial quantity. Therefore,
concept of commercial quantity is applicable only to narcotic drugs and
psychotropic substances and not to controlled substance.
11. Section 9A of the NDPS Act deals with the power to control and
regulate controlled substance. "Controlled substance" means any
substance which the Central Government may, having regard to the
available information as to its possible use in the production
manufacture of narcotic drugs or psychotropic substances or to the
provisions of any international Convention, by notification be a
controlled in the official Gazette, declare substance. The Ministry of
Finance Department of Revenue vide its notification dated 28th
BAIL APPLN. 2677/2020 Page 5 of 9
December, 1999 has declared pseudo-ephedrine a controlled substance
under the Act. The Central Government being of the opinion that
having regard to the use of the controlled substances in the production
or manufacture of any narcotic drug or psychotropic substance, it is
necessary or expedient so to do in the public interest, in exercise of
powers conferred by Section 9A of the Act has made the Narcotic
Drugs and Psychotropic Substances (Regulation of Controlled
Substance) Order, 1993, which has come into force w.e.f. 15th April,
12. The substance alleged to have been recovered from the
petitioner/accused is 3.5 Kg. of pseudoephedrine which is a controlled
substance. It has been rightly submitted by the Ld. counsel for the
petitioner/accused that it is neither a narcotic drug nor a psychotropic
substance under the NDPS Act. The alleged offences are not
punishable with death or imprisonment for life. The offence falling U/s
9A r/w section 25A of the NDPS Act is punishable with imprisonment
which may extend to 10 years and also fine which may also extend to
Rs. 1 Lakh and the bar of Section 37 is not attracted in the present case
as the substance recovered is a controlled substance within the meaning
of Section 2 (viid) of the Act.
13. The next point for consideration is, whether the
petitioner/accused who is a foreign national is entitled to be released on
BAIL APPLN. 2677/2020 Page 6 of 9
bail, if he is able to make out a case in his favour. The counsel for the
petitioner has placed reliance upon “Gudikanti Narasimhulu and
Others Vs. Public Prosecutor” 1978 AIR SC 429 in which it has been
"Personal liberty, deprived when bail is refused, is too
precious a value of our constitutional system recognised
under Art. 21 that the curial power to negate it is a great
trust exercisable, not casually but judicially, with lively
concern for the cost to the individual and the community."
It was further held that "deprivation of personal freedom,
ephemeral or enduring, must be founded on the most
serious considerations relevant to the welfare objectives of
society, specified in the Constitution.”
14. Ld. counsel for the petitioner/accused has also relied upon
“Sartori Livio vs. State” 2005 (80) DRJ 482 in which it has been held
"It would be a shame if courts are going to keep
persons incarcerated merely because they are of
foreign origin even though prima facie no case is made
out against them. This would be a negation of the
valued principles of rule of law and violative of the
constitutional mandate and principles of human
rights."
15. It was further added by the Hon'ble Court that:
"In view of this judgment, with which I am in
agreement, it is clear that just because a foreign
BAIL APPLN. 2677/2020 Page 7 of 9
national is involved, it does not mean that he is to be
denied the benefit of bail. "
16. Therefore, in view of the judgments (supra) relied upon by the
Ld. counsel for the petitioner/accused, there is no bar for releasing
foreign national on bail, if the case so warrants.
17. It has also been argued by the Ld. counsel for the petitioner that
in cases, where the controlled substance recovered was even much
larger then that recovered from the petitioner/accused even in those
cases the bail have been granted and he has placed reliance upon
“Niranjan Jayantilal Shah Vs. Directorate of Revenue Intelligence”
decided on 19.11.2013 (Bail Application No. 1202/2013), this Court
granted bail to the accused where the recovery of the same controlled
substances was of 100 Kg. This decision referred to had relied upon
several other decisions of the Court, where the recovery of much larger
quantities of controlled substances have been made. Reliance can also
be placed upon the judgment of this Court “Manoj Kumar Vs.
Directorate of Revenue Intelligence” 2015 SCC On Line Delhi 7830.
18. The other recovery from the possession of the petitioner is 15
gm. Cocaine which is also not a commercial quantity, therefore, in the
instant case, bar of Section 37 of NDPS Act is not applicable. Though
the petitioner is a foreigner but as already observed hereinabove and in
view of the judgments “supra” there is no bar to release a foreign
national on bail in the given facts and circumstances of this case. In
BAIL APPLN. 2677/2020 Page 8 of 9
the present case, the petitioner is married to an Indian lady and having
kids with her. The factum of his marriage and kids has been verified
by the state and statements of the relatives of the wife of the petitioner
have already been recorded in this regard. The petitioner is in J.C.
since 16.02.2018 and the final conclusion of the trial of this case is
likely to take long time. Therefore, the petitioner is admitted to bail on
his furnishing personal bond in the sum of Rs.1,00,000/- with two
solvent sureties each of the like amount subject to the satisfaction of
the trial Court. Being released on bail, the petitioner shall inform the
IO of the case, the address at which he will reside during the period he
is on bail. Any change in the address shall also be communicated to
the IO of the case within 2 days. The petitioner shall report to the IO of
the case at police station Crime Branch, Delhi every fortnight till the
conclusion of the trial. The petitioner shall not leave the limits of NCT
of Delhi without prior permission of the Trial Court. With these
directions, the application is disposed of.
19. Nothing stated hereinabove shall tantamount to the expression of
any opinion on the merits of this case. | In a case involving a foreign national arrested under the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act), the Delhi High Court clarified the liability of persons accused of offenses involving controlled substances and the foreigner's right to bail. Section 37(1) of the Act states that: "37. Offenses to be cognizable and non-bailable.—(1)...
In a case involving a foreign national arrested under the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act), the Delhi High Court clarified the liability of persons accused of offenses involving controlled substances and the foreigner's right to bail.
Section 37(1) of the Act states that:
"37. Offenses to be cognizable and non-bailable.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),— (a) every offense punishable under this Act shall be cognizable; (b) no person accused of an offense punishable for 3 [offenses under section 19 or section 24 or section 27A and also for offenses involving commercial quantity] shall be released on bail or on his own bond unless—"
In this case, the Petitioner was the source person for Pseudoephedrine drug for a business chain operating in Punjab, Haryana, and Delhi. Holding the drug to be a "controlled substance", Justice Bhatnagar held that the bar of Section 37 is not applicable in this case.
Liability for Pseudoendephrine-related Offense
Citing the Ministry of Finance Department of Revenue Notification dated 28.12.1999, the Court observed that Pseudoephedrine is a "controlled substance." Section 2(viid) of the NDPS defines the same as "any substance which the Central Government may, having regard to the available information as to its possible use in the production or manufacture of narcotic drugs or psychotropic substances or to the provisions of any International Convention, by notification in the Official Gazette, declare to be a controlled substance."
As per Section 9A of the Act, the Central Government may regulate or prohibit the "production, manufacture, supply and distribution thereof and trade and commerce" of controlled substances. Read with Section 25A, the maximum punishment for offenses involving controlled substances is 10 years and a fine of Rs. 1 lakh. Section 37 of the Act bars persons accused of offenses in the category of offenses under Sections 19, 24 and 27. In other words, the bar is only applicable to offenses involving narcotic drugs or psychotropic substances. Further, in this case, the offense was not such as to warrant death/life imprisonment. Thus, the Court excluded the operation of the bar to offenses involving Pseudoendephrine.
Justice Rajnish Bhatnagar held:
"The substance alleged to have been recovered from the petitioner/accused is 3.5 Kg. of Pseudoephedrine which is a controlled substance. It has been rightly submitted by the Ld. counsel for the petitioner/accused that it is neither a narcotic drug nor a psychotropic substance under the NDPS Act. The alleged offences are not punishable with death or imprisonment for life. The offence falling U/s 9A r/w section 25A of the NDPS Act is punishable with imprisonment which may extend to 10 years and also fine which may also extend to Rs. 1 Lakh and the bar of Section 37 is not attracted in the present case as the substance recovered is a controlled substance within the meaning of Section 2 (viid) of the Act."
Right to Bail to a Foreign National
The Petitioner (the foreigner in Judicial Custody) cited Supreme Court's decisions in Gudikanti Narasimhulu and Others v. Public Prosecutor (1978) and Sartori Livio v. State (2005) to assert his Right to Life and Personal Liberty under Article 21 of the Constitution in the context of bail. It had been emphatically held in the decisions that even foreign nationals have the liberty to avail bail. In Sartori Livio, it was held that:
"It would be a shame if courts are going to keep persons incarcerated merely because they are of foreign origin even though prima facie no case is made out against them. This would be a negation of the valued principles of rule of law and violative of the constitutional mandate and principles of human rights."
Following the cited holdings, the Court examined the foreign national's bail case. Noting that the quantity of the drug found with the offender was only 3.5kg Pseudoendephrine along with 15gm Cocaine, the Court held that the same could not qualify "commercial quantity" within the meaning of Section 37 of the Act. The Court relied on the Delhi High Court precedents, which granted bail to persons with even 100 kg or more of controlled substances. These included "Niranjan Jayantilal Shah Vs. Directorate of Revenue Intelligence" decided on 19.11.2013 (Bail Application No. 1202/2013) and "Manoj Kumar Vs. Directorate of Revenue Intelligence" 2015 SCC On Line Delhi 7830".
Holding
The Court granted bail to the Petitioner directing him to furnish a personal bond of Rs. 1,00,000 and fulfil other conditions:
"The Petitioner is in J.C. since 16.02.2018 and the final conclusion of the trial of this case is likely to take a long time. Therefore, the Petitioner is admitted to bail on his furnishing personal bond in the sum of Rs.1,00,000/- with two solvent sureties each of the like amount subject to the satisfaction of the Trial Court. Being released on bail, the Petitioner shall inform the IO of the case, the address at which he will reside during the period he is on bail. Any change in the address shall also be communicated to the IO of the case within 2 days. The Petitioner shall report to the IO of the case at police station Crime Branch, Delhi every fortnight till the conclusion of the trial. The Petitioner shall not leave the limits of NCT of Delhi without prior permission of the Trial Court. With these directions, the application is disposed of."
Case Details
Case Name: TINIMO EFERE WOWO Vs THE STATE GOVT OF NCT OF DELHI
Case Number: BAIL APPLN. 2677/2020
Date of Decision: 05.01.2022
Coram: JUSTICE RAJNISH BHATNAGAR |
1. By this writ petition the petitioner father intends to invoke the
Constitutional powers of this Court under Article 226 and 227 of the
Constitution of India to challenge the order passed by learned
Additional Sessions Judge, Ahmednagar, District Ahmednagar, on 25-
04-2019 in Criminal Revision Application No.236 of 2017 thereby
allowing the said revision filed by the present respondent son and
setting aside the order of grant of maintenance passed by learned
Judicial Magistrate First Class, Shevgaon, District Ahmednagar, in
Criminal Misc.Application No.153 of 2014 by order dated 06-10-2017,
under Section 125 of Cr.P.C. The learned Additional Sessions Judge,
Ahmednagar by the said revision has dismissed the said application
filed by the father against the son for maintenance.
2. The relationship between the petitioner and the respondent is
not disputed. It is stated that the petitioner had three daughters
and only one son i.e. present respondent. The wife of the petitioner
is still alive, but she stays separately from the petitioner but with the
respondent. According to the petitioner, he had no source of income
and due to his old age he is unable to do any work. He had
therefore filed the said application under Section 125 of Cr.P.C. for
maintenance. The learned Magistrate after taking into consideration
the evidence on record had come to the conclusion that the
petitioner is unable to maintain himself, respondent had refused to
maintain his father and the son is capable of maintaining father.
Under such circumstances, he had granted maintenance @ of
Rs.5000/- per month from the date of the original application i.e.
3. The present respondent/son challenged the said order in said
Criminal Revision No.236 of 2017 and reversing all the findings of
the learned Magistrate, the learned Additional Sessions Judge had
set aside the order passed by the Magistrate and dismissed the
original application. Hence, this writ petition.
4. Heard learned Advocate Mr. N. D. Batule for petitioner, learned
Advocate Mr. D. R. Marked holding for learned Advocate Mr. G. P.
Darandale for respondent. Perused the affidavit-in-reply filed by the
respondent, documents filed along with it, then affidavit-in-rejoinder
by the petitioner stating that his present age is 75 years. Once
again there is surrejoinder by the respondent son stating that the
petitioner had agricultural land admeasuring 57 R and he has sold
the same to one Sunil Chandrabhan Admane on 09-11-2015 for a
consideration of Rs.3 lakh. However, according to the son, actual
consideration amount was Rs.7,50,000/-, but it has been shown less
in the sale deed.
5. From the submissions those have been made on behalf of both
the sides what could be gathered is that at present the age of the
petitioner is around 73 to 75 years. It has now come on record and
the learned Advocate for the respondent admits that now there is no
land left with the petitioner. The question is then, what is the
source of income for the petitioner. Learned Magistrate had already
held that he has no source of income. No doubt it was then
reversed by the revisional Court taking into consideration the said
sale deed executed on 09-11-2015. Even if for the sake of
arguments we accept that there was a piece of land for the
petitioner, but whether that is giving him sufficient income to
sustain, is a question, and whether his physical ability is allowing
him to cultivate the land or get it cultivated through anybody so that
he can earn. The son cannot avoid his responsibilities to maintain
the father. It appears that he is putting a condition that the
petitioner should come and stay along with him like mother. The
son cannot impose such condition. Unfortunately now the situation
has arisen for the father that he is unable to maintain himself and
then he is required to depend upon somebody else. The son is
trying to say that because of the vices of the father, there is
differences between the mother and the father and they are not
residing together. So also now the petitioner is demanding the
money just to fulfill his vices. We cannot go into these disputed
facts forever. We are required to see as to whether there is a
source of income for the petitioner which could give him sufficient
amount to support and then there is responsibilities of son to
maintain the father, and therefore, the finding which has been
arrived at by the learned revisional Court only on the technical basis
that some amount was received by the petitioner in the past
because of the sell and the so called admission of the petitioner that
by doing labour work he is getting wages @ of Rs.20/- per day. The
said order could not have been totally discarded. At the most, the
revisional Court by applying proper criteria could have reduce that
amount to make it sustainable for both the parties. The income of
the son is also then required to be considered because he is already
support his own family as well as the mother. The approach taken
by the revisional Court appears to be too hyper technical and when
it comes to petitions under Section 125 of Cr.P.C., the Courts cannot
be so hyper technical in their approach. The said provision is made
for the immediate support that too financial in nature of a person so
that he or she can survive. Therefore, taking into consideration
these aspects, definitely the Constitutional powers of this Court
deserve to be invoked in this case when such too technical approach
is taken and the petitioner is forced to earn now at this age of 73 to
75 years in view of the dismissal of the original application under
Section 125 of Cr.P.C.
6. For the aforesaid reasons, following order is passed.
1) The writ petition stands partly allowed.
Additional Sessions Judge, Ahmednagar, on 25-04-2019
thereby allowing the Criminal Revision No.236 of 2017, is
hereby set aside.
3) The Judgment and order dated 06-10-2017 in Cri.
Misc. Application No.153 of 2014, passed by learned
Ahmednagar, is confirmed in its findings and modified as
“The Cri.Misc.Appln. No.153 of 2014 stands partly
allowed. Respondent Haribhau Jagannath Bedke
is directed to pay maintenance @ of Rs.3000/-
(three thousand) per month to applicant father
Jagannath Bhaginath Bedke from the date of this
order i.e. 08-07-2022.” | The Aurangabad Bench of Bombay High Court while deciding a writ petition related to maintenance said that courts should not get too technical while deciding petitions under section 125 of the Cr.P.C. "The said provision is made for the immediate support that too financial in nature of a person so that he or she can survive", the court stated. Justice Vibha Kankanwadi was dealing with...
The Aurangabad Bench of Bombay High Court while deciding a writ petition related to maintenance said that courts should not get too technical while deciding petitions under section 125 of the Cr.P.C.
"The said provision is made for the immediate support that too financial in nature of a person so that he or she can survive", the court stated.
Justice Vibha Kankanwadi was dealing with a petition under Article 226 and 227 of the Constitution challenging order of the lower court dismissing the petitioner's maintenance application.
In July 2014, the petitioner filed an application before Judicial Magistrate First Class, Shevgaon, District Ahmednagar seeking maintenance from his son (respondent). He claimed that he had no source of income and was unable to work due to old age. His application was allowed and son was directed to pay five thousand rupees per month. The son filed a revision petition and the Additional Session Judge dismissed the original application. The father filed the current petition challenging the order of the Additional Sessions Judge.
The petitioner claimed that he has no source of income and cannot work due to his old age.
The respondent claimed that the petitioner sold his agricultural land for 750000 rupees although it has been shown less in the sale deed. Further he claimed that his father has vices which have caused difference between his parents and they are not residing together. The son has alleged that his father is demanding money just to fulfill his vices.
The court examined the facts and observed that the revisional court dismissed the application on a technical basis that the petitioner received some amount in the from the sale and his so-called admission that by doing labour work he is getting wages of Rs.20/- per day. However, the question is whether there is a source of income sufficient for the father to sustain. The court stated that the revisional court could at most reduce the maintenance amount but not discard the maintenance order entirely. The son has the responsibility to maintain his father and he cannot impose the condition that the father stay with him to pay maintenance.
"The approach taken by the revisional Court appears to be too hyper technical and when it comes to petitions under Section 125 of Cr.P.C., the Courts cannot be so hyper technical in their approach" the court observed.
The court set aside the order of the revisional court and granted a reduced amount of maintenance of three thousand rupees per month to the father.
Case no. – Criminal Writ Petition No.1312 of 2019
Case Title – Jagannath Bhagnath Bedke v. Haribhau Jagannath Bedke
Coram – Justice Vibha Kankanwadi |
Counsel for Applicant :- S M Singh Royekwar,Sumeet Tahilramani
Counsel for Opposite Party :- G.A.,Anurag Kumar Singh,Narendra
Counsel for Applicant :- Purnendu Chakravarty,Pranesh Misra
Counsel for Opposite Party :- Anurag Kumar Singh,Narendra
Counsel for Applicant :- Sharad Pathak
Counsel for Opposite Party :- G.A.,Narendra Kumar Sharma,Romil
4. Case :- APPLICATION U/S 482 No. - 5200 of 2022
Counsel for Applicant :- Arun Sinha,Siddhartha Sinha,Umang
Counsel for Opposite Party :- Anurag Kumar Singh,G.A.,Narendra
Counsel for Applicant :- Dr. Pooja Singh
Counsel for Opposite Party :- G.A.,Anurag Kumar Singh,Narendra
Counsel for Applicant :- Shubham Gupta,Amul Mani Tripathi
Counsel for Opposite Party :- G.A.,Narendra Kumar Sharma,Romil
7.Case :- APPLICATION U/S 482 No. - 6649 of 2022
Counsel for Applicant :- Amul Mani Tripathi,Shubham Gupta
Counsel for Opposite Party :- G.A.,Anurag Kumar Singh
1. These seven petitioners under Section 482 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as the "CrPC") have been
filed, impugning the summoning order dated 07.07.2022 passed by the
learned Special Judicial Magistrate, C.B.I., Lucknow in Complaint
Case No. 3845 of 2019.
2. The facts, giving rise to these petitioners briefly stated are that the
Government of India launched a scheme, named and styled as
'National Rural Health Mission' (hereinafter referred to as the
"NRHM") on 12.04.2003 with a view to provide accessible, adequate
and affordable health service to all persons, particularly, to vulnerable
section of the society, residing in remote areas. The separate
Memorandum of Understandings were entered into between the
Central Government and the State Governments for decentralizing the
implementation of the scheme and mobilizing the resources for
implementing the said scheme. Such a Memorandum of
Understanding with the Government of Uttar Pradesh was entered into
on 12.11.2006. As per the said Memorandum, 85% funds were to be
provided by the Central Government whereas the State Government
was to contribute 15% of the total funds for the Mission.
3. The State Health Society (hereinafter referred to as the "SHS") was
established under the Chairmanship of Chief Secretary, Government
of Uttar Pradesh and the existing State Agencies involved in
implementation of tuberculous, blindness and leprosy eradication as
well as other State Empowered Committee for RCH etc. were merged
with he SHS.
4. On the allegation of large scale bungling, misappropriation and
cheating of public funds, while implementing the NRHM by the
government officials, in active connivance and conspiracy with
private persons, Public Interest Litigation Petition Nos. 3611 (M/B) of
2011, 3301 (M/B) of 2011 and 2647 (M/B) of 2011 came to be filed.
This Court vide order 15th November, 2011 directed as under:-
".....................We are prima facie convinced that gross
irregularities financial and administrative appear to have been
committed in the execution and implementation of NRHM
including the matter of award of contracts, procurement of
goods, article and etc. at various levels.
.................The facts and circumstances, aforesaid make out a
case for reference to CBI for making a preliminary enquiry in
the affairs of NRHM in the entire State of U.P. right from the
very inception of the NRHM.
We, therefore, direct the Director, CBI to conduct a preliminary
enquiry in the matter of execution and implementation of the
NRHM and utilization of funds at various levels during such
implementation in the entire State of U.P. and register regular
case in respect of persons against whom prima facie cognizable
offence is made out and proceed in accordance with law. The
preliminary enquiry shall be conducted from the period
commencing year 2005-06 till date....."
5. In compliance of the directions issued by this Court, the CBI, after
making preliminary inquiries, registered FIR bearing RC
No.01(A)/2012 dated 02.01.2012 in the matter of irregularities in
utilization of funds allocated to the UP Small Scale Industries
Corporation for supply/procurement of various items under the
NRHM during the year 2009-2010.
6. In May, 2010, the State Government of U.P. vide Government
Order No.1570/Sec-2-5-10-7(109) dated 05.05.2010 bifurcated the
post of Chief Medical Officer (hereinafter referred to as the "CMO")
into District Project Officer (Family Welfare) and CMO (Health).
Considerable funds under NRHM Scheme were placed at the disposal
of the CMO (Family Welfare) of various districts of U.P. for
procurement of medicines and equipments, hiring contractual
manpower and ambulances, expenditure on information, education
and communication which included publicity through wall-writings,
banners, posters and advertisements etc.
7. Dr. Y.S. Sachan had remained posted as Deputy Chief Medical
Officer in the office of CMO, Lucknow from 26.07.2007 to
08.09.2010 when Dr. Anil Kumar Shukla was working as CMO,
Lucknow. After bifurcation, Dr. A.K. Shukla was posted as CMO
(Health), Lucknow, whereas on 15.05.2010 Dr. Rajendra Prasad
Kushwaha was posted as District Project Officer (Family Welfare),
Lucknow. On 24.07.2010, Dr. Vinod Kumar Arya (hereinafter referred
to as “V.K. Arya”) was posted as successor of Dr. Rajendra Prasad
Kushwaha. Dr. Y.S. Sachan was transferred from office of the CMO
(Health), Lucknow to the office of District Project Officer (Family
Welfare), Lucknow vide Order No.1529/5-9-2010-09(221/10) dated
09.09.2010. In the month of October, 2010, the post of District Project
Officer (Family Welfare) was re-designated as CMO (Family
8. Dr. V.K. Arya was shot dead in the morning of 27.10.2010, while he
was taking morning walk near his house at Vikas Nagar, Lucknow by
some unidentified motorcycle borne assailants. First Information
Report (hereinafter referred to as the “FIR”) vide Case Crime
No.0322 of 2010 was registered at Police Station Vikas Nagar,
Lucknow under Section 302 IPC on the complaint of Dr. (Smt) Shashi
Kumari, wife of Dr. V.K. Arya. In this case, local police initially
and Ajay Mishra. After murder, the charge of CMO (Family Welfare),
Lucknow was given to Dr. Y.S. Sachan on 22.11.2010, who worked as
In-charge CMO (Family Welfare), Lucknow till 25.02.2011 in the
absence of regular CMO. During the Financial Year 2010-2011, a total
amount of Rs. 32.49 Crores were received by the Lucknow District
under different heads of NRHM Schemes from State Health Society,
out of which a total amount of Rs.19.35 Crores were spent. Dr. Y.S.
Sachan, during his tenure as In-charge CMO (Family Welfare),
Lucknow, spent an amount of Rs. 8 Crores 21 Lac under different
9. After murder of Dr. V.K. Arya, Dr. B.P. Singh was posted as CMO
(Family Welfare), Lucknow on 25.02.2011 and Dr. Y.S. Sachan
continued to work as his Deputy CMO. In the morning of 02.04.2011,
Dr. B.P. Singh was also shot dead by motorcycle borne unidentified
assailants near his house, while he was taking morning walk in similar
fashion as was the case in committing murder of Dr. V.K. Arya. In this
regard, FIR vide Case Crime No.0269 of 2011 dated 02.04.2011,
under Section 302 IPC was registered at Police Station Gomti Nagar,
Lucknow. Investigation was taken up by Sub-Inspector, Mr.
Abhimanyu Dhar Dwivedi, Station Officer of Police Station Gomti
Nagar and I.O of the case examined Dr. Y.S. Sachan and recorded his
statement in order to get some clue in murder case of Dr. B.P. Singh,
but without any success.
10. After murder of Dr. B.P. Singh on 02.04.2011, an FIR vide Case
Crime No.0112 of 2011 was registered at Police Station Wazirganj,
Lucknow on 05.04.2011, under Sections 409, 419, 420, 467, 468 and
471 IPC against Dr. Y.S. Sachan and two others for bungling,
misappropriation, cheating and forgery etc of NRHM funds during
the Financial Year 2010-2011. On 05.04.2011, Dr. Y.S. Sachan was
summoned in Crime Branch, Hazratganj, Lucknow. Dr. Y.S. Sachan
was arrested on the same day in relation to Case Crime No.0112 of
2011 and sent to District Jail, Lucknow on 06.04.2011.
11. In view of murders of the two CMOs, both the Ministers for
Health and Family Welfare resigned on 07.04.2011 and Mr. Pradeep
Shukla, Principal Secretary (Health) was also transferred on the same
day. Another FIR vide Case Crime No.0115 of 2011 was also
registered at Police Station Wazirganj, Lucknow under Sections 409,
419, 420, 467, 468 and 471 IPC on 07.04.2011 against Dr. Y.S.
Sachan and Dr. A.K. Shukla for misappropriation, bungling, cheating
of NRHM funds in CMO Office, Lucknow during the Financial Year
2009-2010. Dr. Y.S. Sachan remained in judicial custody from
05.04.2011 to 06.04.2011. On account of high blood pressure and
diabetes, Dr. Y.S. Sachan was admitted in District Jail Hospital,
Lucknow on 06.04.2011. On 08.04.2011, Dr. Y.S. Sachan was taken
on police custody remand for 48 hours in Case Crime No.0112 of
2011 lodged at Police Station Wajirganj, Lucknow, but again he got
hospitalized in Balrampur District Hospital at 5.30 p.m. Dr. Y.S.
Sachan was discharged from Balrampur District Hospital on
10.04.2011 and sent to District Jail, Lucknow where he was admitted
in District Jail Hospital and discharged on 11.04.2011. Dr. Y.S. Sachan
was again taken on police custody remand for one day on 13.04.2011
in Case Crime No.0112 of 2011. The Jail Doctor, however, opined that
his police custody was subject to clearance from the expert of
Balrampur District Hospital. Dr. Y.S. Sachan was admitted in
Balrampur District Hospital and discharged on the next day i.e.
14.04.2011 and again sent back to District Jail, Lucknow. Dr. Y.S.
Sachan remained hospitalized in District Jail Hospital, Lucknow from
10.04.2011 to 11.04.2011, from 16.04.2011 to 07.06.2011 and from
11.06.2011 to 22.06.2011 (till his death).
12. It would be relevant to take note that after two months from initial
arrest on 05.04.2011, when Dr. Y.S. Sachan was again taken in police
custody remand for 24 hours on 10.06.2011 in relation to Case Crime
No.0115 of 2011 lodged at Police Station Wazirganj his statement was
recorded for the second time by the Investigating Officer, Mr.
Abhimanyu Dhar Dwivedi on 15.06.2011 in relation to Case Crime
No.0269 of 2011 lodged at Police Station Gomti Nagar (Dr. B.P.
Singh murder case) after taking permission from the Court. On
17.06.2011, Special Task Force (hereinafter referred to as the "STF"),
Lucknow of U.P. Police arrested Anand Prakash Tiwari, Ram Krishan
Verma and Vinod Sharma for murder of Dr. B.P. Singh and during
interrogation, they had disclosed complicity of Dr. Y.S. Sachan in the
said case. On the same day i.e. 17.06.2011, in the evening, the then
Cabinet Secretary of Government of U.P. convened a press conference
and claimed that the two CMOs were murdered at the instance of Dr.
Dwivedi filed an application in the Court of Chief Judicial Magistrate,
Lucknow for production of Dr. Y.S. Sachan before the Court so that he
might be remanded in judicial custody in relation to Case Crime
No.0269 of 2011. Accordingly, Dr. Y.S. Sachan was produced in the
Court of Chief Judicial Magistrate, Lucknow on 20.06.2011. Sub-
Inspector, Mr. Abhimanyu Dhar Dwivedi recorded further statement
of Dr. Y.S. Sachan on 21.06.2011 in District Jail, Lucknow after
permission from the Court. On 22.06.2011, dead-body of Dr. Y.S.
Sachan was found on 1st Floor of unused toilet of Jail Hospital,
Lucknow. On 23.06.2011, Dr. Malti Sachan, wife of Dr. Y.S. Sachan,
sent a complaint to the Station Officer, Police Station Gosainganj,
Lucknow, alleging therein murder of her husband on 22.06.2011 in
Jail Hospital, Lucknow. On the basis of the complaint sent by Dr.
Malti Sachan, wife of Dr. Y.S. Sachan, FIR vide Case Crime No.0276
of 2011 dated 26.06.2011 was lodged against unknown person(s)
under Sections 120-B and 302 IPC.
13. Dr. Malti Sachan, in her complaint, alleged that on 05.04.2011 her
husband was summoned by the Wazirganj Police, Lucknow for
interrogation in the case relating to large scale financial irregularities
in Family Welfare Department and that there appeared to be
involvement of high ranking officers. Earlier two CMOs were also
murdered. Her husband was sent to prison pursuant to a well-designed
criminal conspiracy hatched by the responsible officers of the State
Government on the allegations of bungling of Crores of rupees in
Family Welfare Department. Initially, there were allegations of
financial irregularities against him but later on, he was also linked to
the murders of Dr. V.K. Arya and Dr. B.P. Singh, both were the then
CMOs (Family Welfare), Lucknow. On 23.06.2011, her husband was
to appear in the Court and he could have disclosed involvement of
high influential persons in the Government. Her husband was done to
death in a planned manner by inflicting grievous injuries in order to
shield the high influential persons.
14. This Court vide order dated 14.07.2011 passed in Writ Petition
No.6601 (M/B) of 2011 (PIL) filed by (Sachchidanand Sachchay Vs.
State of U.P. and others) directed the CBI to investigate reasons,
circumstances and cause of death of Dr. Y.S. Sachan. FIR vide Case
Crime No.0276 of 2011, lodged at Police Station Gosaiganj, was re-
registered as FIR No.RC0532011S0004 of 2011, under Sections 302
and 120-B IPC, Police Station CBI/SCB/Lucknow on 15.07.2011.
15. The CBI took cognizance pursuant to the said order passed by this
Court in respect of death of Dr. Y.S. Sachan.
16. As per statement recorded on 15.06.2011 by the Investigating
Officer (hereinafter referred to as the “IO”), Abhimanyu Dhar
Dwivedi, Dr. Y.S. Sachan admitted his complicity in the murder case
of both the CMOs. In case of Dr.V.K. Arya, he admitted that after
issuance of Government Orders dated 14.10.2010 and 18.10.2010 he
was not made second signatory to sign cheques by Dr. V.K. Arya due
to which he was not getting any monetary benefit. In case of Dr. B.P.
Singh, he (Dr. Y.S. Sachan) admitted that Dr. B.P. Singh had
humiliated him for various payments made during his tenure as CMO
(Family Welfare), Lucknow towards hiring of vehicles, maintenance
of official buildings and hiring security guards etc. He was also
accused of making fraudulent payment of Rs. 1.05 Lac to his
associate, Ram Krishna Verma. Dr. B.P. Singh was bent upon fixing
him for the financial irregularities. He also visited house of Dr. B.P.
Singh to sort out the matter but in vain. He confined ill-treatment
meted out to him at the hands of Dr. B.P. Singh to his associate, Mr.
Ram Krishna Verma, who assured him that he would get rid of Dr.
B.P. Singh as was done in the case of Dr. V.K. Arya.
17. The STF, Lucknow of UP Police was working in tandem with
Lucknow Police to solve the murder cases of the two CMOs. On
17.06.2011, the STF, Lucknow arrested three accused persons,
namely, Ram Krishna Verma, Anand Prakash Tiwari and Vinod
Sharma for their involvement in the murder of Dr. B.P. Singh. During
interrogation, the trio admitted before the STF that both the CMOs
were murdered at the instance of Dr. Y.S. Sachan and thereafter the
Cabinet Secretary, Government of U.P., in the evening of 17.06.2011,
held a press conference and said that as per the police investigation
both the CMOs (Dr. V. K. Arya and Dr. B. P. Singh) were murdered at
the instance Dr. Y.S. Sachan. The said conference was given wide
coverage by both Electronic and Print Media.
18. It is said that as per police statement of Dr. Y.S. Sachan recorded
on 21.06.2011, Ram Krishna Verma, friend of Dr. Y.S. Sachan,
introduced him to Anand Prakash Tiwari. Anand Prakash Tiwari was
offered Rs. 7 Lac for committing murder of Dr.B.P. Singh. Anand
Prakash Tiwari was given Rs.50,000/- as an advance for the job. Dr.
Y.S. Sachan took Anand Prakash Tiwari to his office and showed him
the target i.e. Dr. B.P. Singh. He also provided residential address to
Dr. B.P. Singh to Anand Prakash Tiwari and showed his house to him.
Dr. Y.S. Sachan was not talking to his accomplices over phone to
chalk out the strategy but would convey the modalities through Ram
Krishna Verma or in person. In the morning of 02.04.2011, Anand
Prakash Tiwari came to him to collect the remaining amount after
committing the murder of Dr. B.P. Singh. Anand Prakash Tiwari
handed over him the pistol used in commission of the crime, which
Dr. Y.S. Sachan concealed in his office and was ready to get it
recovered to the police.
19. The CBI, in its investigation, in respect of death of Dr. Y.S.
Sachan, found that on 22.06.2011, while locking the jail in the
evening, Dr. Y.S. Sachan was found missing. On being searched, his
dead-body was found at about 20.15 hours under mysterious
circumstances on 1st floor in an unused toilet of minor operation
theater of the jail hospital which was under construction. There were
cut-marks on his body, and a leather belt was found tied around his
neck. Buckle end of the belt was found entangled in the ventilator of
toilet. The dead-body was taken out from the toilet and kept in the
corridor at 1st floor for examination by doctor of jail hospital. On
examination, Dr. V.V. Tripathi declared him dead at about 20.30 hours.
The information was given to the Station Officer, Police Station
Gosaiganj, Lucknow about death of Dr. Y.S. Sachan and the inquest
proceedings were conducted by Mr. Jitendra Srivastava, Tehsildar,
Mohanlalganj on the same day. The inquest proceedings were
conducted from 23:15 hours of 22.06.2011 to 01:30 hours of
23.06.2011. After inquest proceedings got concluded FSL Team,
comprising of the experts from biology, serology, physics, ballistics,
photography and their supporting staff reached at the spot and sniffer
dogs were also pressed into service. The place of occurrence and
dead-body were photographed and video recorded by the experts of
the FSL, Lucknow in the night of 22/23.06.2011.
20. A panel of doctors was constitute for conducting autopsy. As per
postmortem report, there were 8 antemortem incised wounds and one
postmortem ligature mark on neck of body of Dr. Y.S. Sachan. Cause
of death was opined to be shock and hemorrhage.
21. The FSL submitted its report dated 18.07.2011 regarding
inspection of scene of occurrence on 22.06.2011 and 23.06.2011 and
as per the FSL report a leather belt was found tied around the neck of
the deceased with a slipping knot, blood was spread all over the floor
of the toilet and clotted. One plastic bottle, half filled with water like
liquid, was also fond on the door of the toilet, blood was detected on
the iron rod of the ventilator and also recovered one half shaving
blade under questionable circumstances.
22. Dr. B.S. Arora, Additional Director and Dr. S.C. Mittal, Joint
Director, State Forensic Medicine Experts, Government of U.P. vide
their report dated 22.07.2011 opined that the death of Dr. Y.S. Sachan
did not appear to be a case of suicide.
23. The CBI, during the course of investigation, requisitioned the
services of experts of CFSL, CBI, New Delhi, along with Dr. T.D.
Dogra, Professor & Head, Department of Forensic Medicine and
Toxicology, AIIMS, New-Delhi. The experts collected certain samples
from the scene of occurrence and the place was also photographed.
During inspection, jail hospital premises was also searched to trace
any physical clue/chance, however, nothing incriminating was found.
Dr. M.S. Dahiya, Deputy Director, FSL, Gandhinagar, Gujarat also
inspected the place of occurrence. CCTV footage of cameras installed
in District Jail, Lucknow were scanned/scrutinized for movement of
any person and vehicle.
24. The CBI sought constitution of a medical board of experts at
AIIMS, New-Delhi for opinion on the nature of injuries and cause of
death. Expert opinion of the hand-writing experts of documents
seized/recovered during investigation was also sought. Polygraph
examination of suspected persons was conducted.
25. The Medical Board of AIIMS, New-Delhi was of the opinion that
the deceased could have first attempted to kill himself by inflicting
incised wounds on the known suicidal sites where arteries and veins
were situated i.e. writs, elbow, neck and inguinal region. The injuries
inflicted did not cut any artery or vein instead of superficial veins
were cut from which there was bleeding, but it was very slow. Hence,
after sometime, when the deceased realized that the injuries were not
killing him fast, he could have attempted to hang himself with the
help of belt in which he had succeeded and, therefore, the immediate
cause of death in this case was asphyxia as a result of hanging
associated with the bleeding from the injuries inflicted. This
observation was made by the Board of Doctors of AIIMS, New-Delhi
after perusing/examining postmortem report, video recording of
postmortem examination and photographs of dead-body and place of
occurrence taken on 22/23.06.2011-. The Board answered the
questions framed by the CBI in detail which is part of the
investigation report of the CBI.
26. As many as seven jail officials and one Ajmat Ullah Beg, convict,
who was working in Jail Hospital, were subjected to polygraph
examination and they denied their involvement in any foul play
relating to murder of Dr. Y.S. Sachan, and the CBI did not find their
involvement on any of the material issues. The CBI, after analyzing
its evidence and opinion of the experts, was of the view that the
deceased had committed suicide.
27. The final/closure report submitted under Section 173(2) CrPC by
the CBI had included the detailed scientific investigation with the help
of experts carried bout by the CBI which runs into several pages and
on the basis of the said detailed scientific investigation, the CBI had
concluded that Dr. Y.S. Sachan had committed suicide, and it was not
a case of homicidal death. The closure report would also disclose that
the experts, who conducted serological autopsy in respect of death of
Dr. Y.S. Sachan had found that Dr. Y.S. Sachan was under tremendous
pressure/stress after seeing newspaper reports dated 18.06.2011
wherein his involvement in murder of two CMOs was widely
reported. He was highly disturbed and shown less interest in eating
food after 18.06.2011. His blood pressure was very high. He had
written typical suicide note, which was recovered among his
belongings on the date of incident, suggests that it was in his hand-
writing. The injuries would suggest self-inflicted one, specially in
absence of definite wounds.
28. The CBI also investigated the procedure/practice for locking and
unlocking jail and counting of inmates and jail staff in District Jail,
Lucknow and actual events in this regard on 22.06.2011.
29. It is mentioned in the report that Dr. Y.S. Sachan was present in
Ward No. 2 at the time of unlocking of jail at 6 hours on 22.06.2011.
He used to wake up early in morning for morning walk. On the date
of incident, he was seen in the ward in the morning by co-inmates,
namely, Furkan, Ramkpal Verma and Kailash. Inmate Shripal Verma
had seen Dr. Y.S. Sachan going out of Ward No. 2 with water bottle in
his hand. Inmate, Ram Pal Verma who was allotted Bed No. 14 in
Ward No. 2 had seen Dr. Y.S. Sachan washing/cleaning his face. He
collected water in the bottle at about 7.30 hours in morning of
22.06.2011. Dr. Y.S. Sachan was wearing pant and shirt.
30. During evening counting and locking of the jail hospital, when
strength of inmates was communicated by the Head Warder, Mr. Babu
Ram Dubey to the Control Room, Chief Head Warder on duty
detected discrepancy of shortage of one inmate of Jail Hospital.
Control Room informed the same to Mr. Babu Ram Dubey and called
him in Control Room. When Mr. Babu Ram Dubey pointed out about
Dr. Y.S. Sachan went on remand, he was asked about the slip issued
by the office of Deputy Jailer, Under Trial Section, for sending Dr.
Y.S. Sachan on remand. On search, the said slip was not found
available. When this fact was cross-checked from office of Deputy
Jailer (Under Trial) and main gate, it was confirmed that Dr. Y.S.
Sachan was not sent on remand on 22.06.2011. Thereafter, search was
started for tracing Dr. Y.S. Sachan out.
31. While searching Dr. Y.S. Sachan in this jail hospital premises, the
Head Warder, Mr. Babu Ram Dubey went to 1st floor of jail hospital
and he found door of the unused toilet attached with the operation
theater partly opened. He pushed the door and found a person in
sitting posture above the commode of the toilet. The 1 st floor of the
jail hospital had no electricity supply, but there was visibility due to
percolation of lights through glass window panes of the operation
theater and toilet ventilator. Head Warder Babu Ram Dubey shouted
from 1st floor that Dr. Y.S. Sachan had been found in toilet. On hearing
shouts of Mr. Dubey, Mr. Bhimsen Mukund along with Warder Dan
Singh and others rushed to 1st floor of the jail hospital.
32. On reaching 1st floor, Mr. Bhimsen Mukund checked inside the
toilet. Dr. Y.S. Sachan was taken out from toilet and his body was kept
in corridor. Dr. V.V. Tripathi, after examination, declared him dead.
The information was given over phone to Mr. V.K. Gupta, IGP (Jail
Lucknow and to the Station Officer of Police Station Gosaiganj by
Mr. S.H.M. Rizvi, Senior Jail Superintendent. Sniffer dogs reached to
the spot.
33. On receiving information, Mr. V.K. Gupta, IGP (Jail
Magistrate, Lucknow; Mr. D.K. Thakur, DIG, Lucknow; experts of
FSL and others reached to the spot and inspected the site. Inquest
proceedings were conducted by Mr. Jitendra Srivastava, Tehsildar,
Mohanlalganj. Mr. V.K. Gupta made inquiries from inmates of Ward
No. 2. Thereafter, he searched personal belongings of Dr. Y.S. Sachan
lying on the side steel rack of his bed. He took out a note/paper from
the belongings of Dr. Y.S. Sachan and after perusing it kept the same
in his pocket. Thereafter, Mr. V.K. Gupta again went to 1 st floor and
read out contents of the said note to someone over phone. Some
contents of the note were also overheard by Mr. J.P. Srivastava.
During examination, Mr. J.P. Srivastava stated that he overheard that
“mujhe apne parivar se koi shikayat nahi hai, na hi karagar ke
34. Mr. V.K. Gupta, in the intervening night of 22/23.06.2011 gave a
brief interview to electronic media regarding death of Dr. Y.S. Sachan,
and he told that note/paper which could be said to be suicide note was
found. Something written by hand had been found but till hand-
writing was examined and other things were not verified, nothing
definite could be said about it.
35. The Lucknow Police was under tremendous pressure to solve the
murder case of Dr. B.P. Singh, therefore, various teams were formed
and assigned the task of working out the cases. One team, comprising
of Inspectors, Mr. Anil Singh and D.K. Shahi and Sub-Inspector, K.N.
Singh was also formed under supervision of the then IGP, Lucknow
Zone, Lucknow for the said purpose. Dr. Y.S. Sachan was taken on
remand for 24 hours by Sub-Inspector, Mr. Shajaur Rahim in 2 nd
NRHM Scam (Case Crime No.115 of 2011, lodged at Police Station
Wazirganj) in the morning of 10.06.2011. In the intervening night of
10/11/06/2011, he was taken to Police Station Chinhat where he was
interrogated by team of Inspector, Mr. Anil Singh and others. In the
morning of 11.06.2011, he was lodged back at District Jail, Lucknow
where he was again interrogated by Inspector, Mr. Anil Singh and
36. During interrogation, Dr. Y.S. Sachan gave a hand-written
note/letter meant to be given to Dr. A.K. Shukla, to Inspector, Mr. Anil
Singh, who in turn handed over the said letter to Mr. Subeh Kumar
Singh, the then IGP, Lucknow Zone, Lucknow. During investigation,
the said letter was produced by Mr. Subesh Kumar Singh before the
CBI. The letter dated 11.06.2011 written by Dr. Y.S. Sachan
addressed to Dr. A.K. Shukla would read as “CMO Dr. A.K. Shukla
mai jail me bahut pareshan go gaya hon. Mere pariwar ki halat
kharab hai. Ap ne meri kuchh madad nihi kiya. Agar aap ne madad
nahi ki to agli remand ki tarikh par police va midia to bata donga ki
dono CMO ki hatya apne karwaya hai. Mere parivar ki suraksha ka
dhyan rakhiyega. Apka”.
37. The said note would indicate that both Dr. Y.S. Sachan and Dr.
A.K. Shukla were privy to murder of both the CMOs.
38. The CBI concluded after thorough, detailed and scientific
investigation from all angles, including the opinion of the experts, that
no evidence had come on record indicating death of Dr. Y.S. Sachan in
jail hospital on 22.06.2011 to be a homicide and no evidence could
come, pointing out presence of second person on 1 st floor of the toilet
of jail hospital. The evidence collected during investigation, included
statements of witnesses, expert opinion of Board of Directors of
AIIMS, New-Delhi, the reports of CFSL experts including biological
reports, physics, fingerprint, hand-writing experts, chemical examiner
& forensic psychologist all of which indicated that Dr. Y.S. Sachan
had committed suicide.
39. The evidence included circumstantial evidence which emerged
during investigation revealed that Dr. Y.S. Sachan was extremely
disturbed and stressed after disclosure of his complicity in the murder
cases of CMOs and he even stopped taking meals. The opinion of the
Board of Doctors of AIIMS, New-Delhi that the cause of death in
case of Dr. Y.S. Sachan was antemortem hanging associated with
multiple suicidal wounds was also fully got corroborated by the oral
as well as documentary evidence which came on record during
investigation. There was some omissions and commissions on the part
of Pahender Singh the then warder and Babu Ram Dubey the then
head warder for failing to do actual head count of inmates and
maintain correct entries as well as failure on the part of Mr. V.K.
Gupta then then IGP (Jail Administration and Reform Services) for
bringing on record the note written by Dr. Y.S. Sachan and causing
disappearance of the same in view of which matter was taken up by
the CBI with the Government of Uttar Pradesh for taking an
appropriate departmental action against them.
40. The closure report dated 27.09.2012 was filed by CBI under
Section 173 (2) CrPC after reaching to the conclusion that death of Dr.
Y.S. Sachan was not homicide, but suicide. The complainant filed a
protest petition alleging therein various gaps in the investigation and
prayed for further investigation.
41. The CBI filed reply to the protest petition, however, the learned
Magistrate vide order dated 22.02.2013 directed the CBI for further
investigation of the offence.
42. The CBI undertook the further investigation and filed a
supplementary closure report after investigating all the aspects
highlighted in the order of learned Magistrate as well as on each of the
allegations made by the complainant in the said protest petition; viz.
(i) the injuries were not self-inflicted (ii) recovery of blade doubtful
(iii) difference of opinion between panel of Board of Forensic
Medicine Experts, AIIMS and panel of Doctors who conducted
postmortem examination (iv) no proper investigation on belt (v) no
report on the surgical knife taken by the police from the pharmacist
(vi) statements under Section 161 CrPC of Anil Kumar Singh and
petitioner, Subesh Kumar Singh, which were recorded for the note in
question (vii) CBI's approach had been abinitio towards the
conclusion as a case of suicide (viii) CJM inquiry report; and (ix)
second opinion from Board of Experts (AIIMS).
43. The complainant was not satisfied even with the supplementary
closure report and again filed a protest petition for summoning of
seven accused persons (the petitioners) for trial of murder of Dr. Y.S.
Sachan and for causing disappearance of evidence.
44. The CBI filed reply to the protest petition.
45. The learned Magistrate vide order dated 19.11.2019 had rejected
the second final report, treating the protest petition as a complaint
case. The statement of complainant, Malti Sachan got recorded under
Section 200 CrPC and statement of six witnesses got recorded under
Section 202 CrPC. Thereafter, the impugned order was passed,
summoning the petitioners to face trial under Section 302 read with
46. The petitioners are Ex-serving government servants. There is no
prior sanction under Section 197 CrPC. Absence of sanction, as
mandated under Section 197 CrPC, would otherwise vitiate the
impugned order. In sum & substance, the allegation is for
disappearance of evidence.
47. In the case reported in (2020) 7 SCC 695 (D. Devaraja Vs. Owais
Sabeer Hussain), in respect of police officer (accused of offence),
while discharging duties, has held in paragraphs 65 to 75, which read
“65. The law relating to the requirement of sanction to
entertain and/or take cognizance of an offence, allegedly
committed by a police officer under Section 197 of the Code of
Criminal Procedure read with Section 170 of the Karnataka
Police Act, is well settled by this Court, inter alia by its
decisions referred to above.
66. Sanction of the Government, to prosecute a police officer,
for any act related to the discharge of an official duty, is
imperative to protect the police officer from facing harassive,
retaliatory, revengeful and frivolous proceedings. The
requirement of sanction from the Government, to prosecute
would give an upright police officer the confidence to discharge
his official duties efficiently, without fear of vindictive
retaliation by initiation of criminal action, from which he would
be protected under Section 197 of the Code of Criminal
Procedure, read with Section 170 of the Karnataka Police Act.
At the same time, if the policeman has committed a wrong,
which constitutes a criminal offence and renders him liable for
prosecution, he can be prosecuted with sanction from the
appropriate Government.
67. Every offence committed by a police officer does not attract
Section 197 of the Code of Criminal Procedure read with
Section 170 of the Karnataka Police Act. The protection given
under Section 197 of the Criminal Procedure Code read with
Section 170 of the Karnataka Police Act has its limitations. The
protection is available only when the alleged act done by the
public servant is reasonably connected with the discharge of his
official duty and official duty is not merely a cloak for the
objectionable act. An offence committed entirely outside the
scope of the duty of the police officer, would certainly not
require sanction. To cite an example, a policeman assaulting a
domestic help or indulging in domestic violence would certainly
not be entitled to protection. However, if an act is connected to
the discharge of official duty of investigation of a recorded
criminal case, the act is certainly under colour of duty, no
matter how illegal the act may be.
68. If in doing an official duty a policeman has acted in excess
of duty, but there is a reasonable connection between the act
and the performance of the official duty, the fact that the act
alleged is in excess of duty will not be ground enough to
deprive the policeman of the protection of the government
sanction for initiation of criminal action against him.
69. The language and tenor of Section 197 of the Code of
Criminal Procedure and Section 170 of the Karnataka Police
Act makes it absolutely clear that sanction is required not only
for acts done in discharge of official duty, it is also required for
an act purported to be done in discharge of official duty and/or
act done under colour of or in excess of such duty or authority.
70. To decide whether sanction is necessary, the test is whether
the act is totally unconnected with official duty or whether there
is a reasonable connection with the official duty. In the case of
an act of a policeman or any other public servant unconnected
with the official duty there can be no question of sanction.
However, if the act alleged against a policeman is reasonably
connected with discharge of his official duty, it does not matter
if the policeman has exceeded the scope of his powers and/or
acted beyond the four corners of law.
71. If the act alleged in a complaint purported to be filed
against the policeman is reasonably connected to discharge of
some official duty, cognizance thereof cannot be taken unless
requisite sanction of the appropriate Government is obtained
under Section 197 of the Code of Criminal Procedure and/or
Section 170 of the Karnataka Police Act.
72. On the question of the stage at which the trial court has to
examine whether sanction has been obtained and if not whether
the criminal proceedings should be nipped in the bud, there are
diverse decisions of this Court.
73. While this Court has, in D.T. Virupakshappa [D.T.
Virupakshappa v. C. Subash, (2015) 12 SCC 231 : (2016) 1
SCC (Cri) 82] held that the High Court had erred [D.T.
Virupakshappa v. C. Subash, 2013 SCC OnLine Kar 10774] in
not setting aside an order of the trial court taking cognizance of
a complaint, in exercise of the power under Section 482 of the
Criminal Procedure Code, in Matajog Dobey [Matajog Dobey
v. H.C. Bhari, AIR 1956 SC 44 : 1956 Cri LJ 140] this Court
held that it is not always necessary that the need for sanction
under Section 197 is to be considered as soon as the complaint
is lodged and on the allegations contained therein. The
complainant may not disclose that the act constituting the
offence was done or purported to be done in the discharge of
official duty and/or under colour of duty. However, the facts
subsequently coming to light in course of the trial or upon
police or judicial enquiry may establish the necessity for
sanction. Thus, whether sanction is necessary or not may have
to be determined at any stage of the proceedings.
74. It is well settled that an application under Section 482 of the
Criminal Procedure Code is maintainable to quash proceedings
which are ex facie bad for want of sanction, frivolous or in
abuse of process of court. If, on the face of the complaint, the
act alleged appears to have a reasonable relationship with
official duty, where the criminal proceeding is apparently
prompted by mala fides and instituted with ulterior motive,
power under Section 482 of the Criminal Procedure Code
would have to be exercised to quash the proceedings, to prevent
abuse of process of court.
75. There is also no reason to suppose that sanction will be
withheld in case of prosecution, where there is substance in a
complaint and in any case if, in such a case, sanction is refused,
the aggrieved complainant can take recourse to law. At the cost
of repetition, it is reiterated that the records of the instant case
clearly reveal that the complainant alleged of police excesses
while the respondent was in custody, in the course of
investigation in connection with Crime No. 12/2012. Patently,
the complaint pertains to an act under colour of duty.”
48. The learned Magistrate, while issuing summoning order, has failed
to record reasons for summoning the petitioners under Sections 302
read with Section 120-B IPC. The impugned order neither reflects an
application of mind nor it deals with the investigation reports
submitted by the CBI on every aspects and allegations.
49. As mentioned above, the CBI had filed the first closure report, and
thereafter, under the direction of learned Magistrate carried out further
investigation other than the points highlighted and had again filed the
closure report. However, the learned Magistrate has rejected both the
closure reports and treated the protest petition as a 'complaint case'.
50. The learned Magistrate, while taking cognizance on the basis of
the complaint, has to be more cautious and careful than taking
cognizance on police report as in the latter scenario, the Magistrate
had an advantage of police report, which would be filed after
collecting evidence and material by the investigating agency. In the
case in hand, the Magistrate did not have the benefit of police reports,
which are against the theory of the complainant. It was the duty of the
learned Magistrate to be more careful inasmuch as he would summon
the persons on the allegations of the complaint to face trial for an
offence under Section 302 IPC. There must be compelling reasons and
overwhelming material to discard conclusion of the investigation
reports submitted by the CBI. However, the statement of the
complainant and witnesses recorded under Section 200 and 202 CrPC
respectively would suggest that those are in respect of same
allegations which got investigated thoroughly, impartially, fairly and
scientifically by the CBI and found no substance in the theory of the
complaint. No new evidence and material has been brought on record.
There was nothing new before the learned Magistrate to take
cognizance for an offence under Section 302 IPC.
51. The allegations are against the retired/serving public/police
officers, who were acting in discharge of their official duty when the
police was carrying out investigation. The Magistrate should not have
acted on guess of the complainant. The complainant is obsesses with
new theory of gaps in the investigation by the CBI. Existence of
overwhelming material and compelling reasons is a must before
summoning a person. Summoning of a person to face trial for a
criminal case is a serious matter. The complaint in the present case
would not disclose commission of offence under Sections 302 and
52. In the case reported in (1998) 5 SCC 749 (Pepsi Foods Ltd. and
another Vs. Special Judicial Magistrate and others) in paragraph-28
it has been held as under:-
“28. Summoning of an accused in a criminal case is a serious
matter. Criminal law cannot be set into motion as a matter of
course. It is not that the complainant has to bring only two
witnesses to support his allegations in the complaint to have the
criminal law set into motion. The order of the Magistrate
summoning the accused must reflect that he has applied his
mind to the facts of the case and the law applicable thereto. He
has to examine the nature of allegations made in the complaint
and the evidence both oral and documentary in support thereof
and would that be sufficient for the complainant to succeed in
bringing charge home to the accused. It is not that the
Magistrate is a silent spectator at the time of recording of
preliminary evidence before summoning of the accused. The
Magistrate has to carefully scrutinise the evidence brought on
record and may even himself put questions to the complainant
and his witnesses to elicit answers to find out the truthfulness of
the allegations or otherwise and then examine if any offence is
prima facie committed by all or any of the accused.”
53. In the case report in (2015) 12 SCC 420 (Mehmood Ul Rehman
Vs. Khazir Mohammad Tunda and others) in paragraphs 21, 22 and
23 it has been held as under:-
"21. Under Section 190(1)(b) CrPC, the Magistrate has the
advantage of a police report and under Section 190(1)(c)
CrPC, he has the information or knowledge of commission of
an offence. But under Section 190(1)(a) CrPC, he has only a
complaint before him. The Code hence specifies that “a
complaint of facts which constitute such offence”. Therefore, if
the complaint, on the face of it, does not disclose the
commission of any offence, the Magistrate shall not take
cognizance under Section 190(1)(a) CrPC. The complaint is
simply to be rejected.
22. The steps taken by the Magistrate under Section 190(1)(a)
CrPC followed by Section 204 CrPC should reflect that the
Magistrate has applied his mind to the facts and the statements
and he is satisfied that there is ground for proceeding further in
the matter by asking the person against whom the violation of
law is alleged, to appear before the court. The satisfaction on
the ground for proceeding would mean that the facts alleged in
the complaint would constitute an offence, and when
considered along with the statements recorded, would, prima
facie, make the accused answerable before the court. No doubt,
no formal order or a speaking order is required to be passed at
that stage. The Code of Criminal Procedure requires speaking
order to be passed under Section 203 CrPC when the complaint
is dismissed and that too the reasons need to be stated only
briefly. In other words, the Magistrate is not to act as a post
office in taking cognizance of each and every complaint filed
before him and issue process as a matter of course. There must
be sufficient indication in the order passed by the Magistrate
that he is satisfied that the allegations in the complaint
constitute an offence and when considered along with the
statements recorded and the result of inquiry or report of
investigation under Section 202 CrPC, if any, the accused is
answerable before the criminal court, there is ground for
proceeding against the accused under Section 204 CrPC, by
issuing process for appearance. The application of mind is best
demonstrated by disclosure of mind on the satisfaction. If there
is no such indication in a case where the Magistrate proceeds
under Sections 190/204 CrPC, the High Court under Section
482 CrPC is bound to invoke its inherent power in order to
prevent abuse of the power of the criminal court. To be called
to appear before the criminal court as an accused is serious
matter affecting one's dignity, self-respect and image in society.
Hence, the process of criminal court shall not be made a
weapon of harassment.
23. Having gone through the order passed by the Magistrate,
we are satisfied that there is no indication on the application of
mind by the learned Magistrate in taking cognizance and
issuing process to the appellants. The contention that the
application of mind has to be inferred cannot be appreciated.
The further contention that without application of mind, the
process will not be issued cannot also be appreciated. Though
no formal or speaking or reasoned orders are required at the
stage of Sections 190/204 CrPC, there must be sufficient
indication on the application of mind by the Magistrate to the
facts constituting commission of an offence and the statements
recorded under Section 200 CrPC so as to proceed against the
offender. No doubt, the High Court is right in holding that the
veracity of the allegations is a question of evidence. The
question is not about veracity of the allegations, but whether
the respondents are answerable at all before the criminal court.
There is no indication in that regard in the order passed by the
learned Magistrate.”
54. The findings of the CBI have been mentioned-herein above in
detail to highlight that how detail scientific, meticulous and fair
investigation was carried out by the CBI for reaching to the
conclusion that it was not a case of homicide, but suicide. There
should have been overwhelming material and evidence to
discard/ignore such a report before the learned Magistrate. At the cost
of repetition, it is mentioned here that there has been nothing before
the learned Magistrate to discard the reports submitted by the CBI.
55. In view of the aforesaid discussion, in absence of order of sanction
for prosecution of the petitioners for the offence in question, the order
of cognizance is bad in law and is liable to be set-aside. Even
otherwise, the impugned order, which would disclose non-application
of mind by the learned Magistrate and without there being any
overwhelming evidence and material to discard the closure reports
filed by the CBI under Section 173 (2) CrPC, summoning the
petitioners, who are retired/serving government officers to face trial
for such a serious offence under Section 302 read with Section 120-B
IPC, is preposterous and to some extent outrageous. The impugned
order is, therefore, set-aside.
56. Accordingly, all the petitions are allowed. | The Bench of Allahabad High Court recently upheld the CBI inquiry report which found that the death of Dy CMO Dr. Y.S Sachin inside the Lucknow jail in June 2011 was suicidal and not homicidal.
With this, the bench of Justice Dinesh Kumar Singh also quashed the summoning order of the magistrate against 7 retired/serving government officers to face the trial in connection with the murder of Dr. Y.S. Sachan and for causing the disappearance of evidence.
The Court observed that the CBI had conducted a detailed scientific, meticulous, and fair investigation for reaching to the conclusion that it was not a case of homicide, but suicide, and hence, there was no occasion for the Magistrate to discard the reports submitted by the CBI and summon the 7 applicants to face a murder trial.
"...without there being any overwhelming evidence and material to discard the closure reports filed by the CBI under Section 173 (2) CrPC, summoning the petitioners, who are retired/serving government officers to face trial for such a serious offence under Section 302 read with Section 120-B IPC, is preposterous and to some extent outrageous," the Court observed.
The case in brief
Essentially, on 02.04.2011 an FIR was lodged against Dr. YS Sachan and two others at Police Station Wazirganj, Lucknow under Sections 409, 419, 420, 467, 468 and 471 IPC for misappropriation, cheating, and forgery, etc of National Rural Health Mission (NHRM) funds during the Financial Year 2010-2011.
On 05.04.2011, Dr. Sachan was summoned to the Crime Branch, Hazratganj, Lucknow. He was arrested on the same day and sent to District Jail, Lucknow on 06.04.2011. Later on, another FIR was filed against him for misappropriation, cheating, etc of NHRM funds by him during the financial year 2009-2010.
On account of high blood pressure and diabetes, Dr. Sachan was taken to District Jail Hospital and on 22.06.2011 his dead body was found on the 1st Floor of an unused toilet of Jail Hospital, Lucknow.
On 23.06.2011, his wife, Dr. Malti Sachan, sent a complaint to the Police Station of Gosainganj, Lucknow alleging the murder of her husband on 22.06.2011 in Jail Hospital, Lucknow. On the basis of the complaint sent by Dr. Malti Sachan, an FIR dated 26.06.2011 was lodged against the unknown person(s) under Sections 120-B and 302 IPC.
It was submitted that her husband was sent to prison pursuant to a well-designed criminal conspiracy hatched by the responsible officers of the State Government on the allegations of the bungling of Crores of rupees in the Family Welfare Department. Initially, there were allegations of financial irregularities against him but later on, he was also linked to the murders of Dr. V.K. Arya and Dr. B.P. Singh, both were the then CMOs (Family Welfare), Lucknow.
The Allahabad High Court, on a PIL, directed the CBI to investigate the cause of his death. After analysis of the evidence, CBI was of the opinion that the deceased had committed suicide and hence, a closure report was filed by the CBI concluding that Dr. Sachan had committed suicide, and it was not a case of homicidal death.
The complainant's wife of the deceased was not satisfied and again filed a protest petition for summoning the seven accused (petitioners before the HC) for the trial of the murder of his husband.
The CBI opposed the protest petition, however, the Magistrate rejected the second final report and treated the protest petition as a complaint case. The Magistrate summoned all the accused petitioners to face trial under Section 302 read with Section 120-B, IPC. The said order was challenged in the instant plea by the seven accused officers.
It was their case that they are Ex-serving government servants and no prior sanction under Section 197 CrPC was taken. The absence of sanction, as mandated under Section 197 CrPC, would otherwise vitiate the impugned order.
The High Court, after hearing both sides, held that the Magistrate, while issuing the summoning order, has failed to record reasons for summoning the petitioners under Sections 302 read with Section 120-B IPC.
Further, the court explained that the Magistrate, “while taking cognizance on the basis of the complaint, has to be more cautious and careful than taking cognizance on police report as in the latter scenario, the Magistrate had an advantage of police report,which would be filed after collecting evidence and material by the investigating agency.” The court said that the complainant is obsessed with the new theory of gaps in the investigation by the CBI.
It was also opined by the court that in order to reject the conclusion of the CBI there must have been overwhelming material and evidence to reject the findings and nothing, in this case, was found before the Magistrate to discard the report.
Consequently, the court concluded that “in absence of an order of sanction for prosecution of the petitioners for the offence in question, the order of cognizance is bad in law and is liable to be set-aside." The impugned order was, therefore, set-aside.
Case title - Subesh Kumar Singh vs. State Of U.P. Thru. Addl. Chief Secy. Home Deptt. Govt. Of U.P. Civil Secrett. Lucknow And Others along with connected matters |
The prayer in the present petition under Section 439 Cr.P.C is for
the grant of regular bail in case bearing FIR No.26 dated 08.02.2022
(Annexure P-1) registered under Sections 387, 120-B IPC and Sections 25,
27, 54, 59 of the Arms Act at Police Station Sector-34, Chandigarh.
2. The present FIR has been lodged on the statement of Angrej
Singh with the averments that on 28.01.2022 at 6.30 PM, he received a
WhatsApp call on his mobile. The caller disclosed his identity to be Goldy
Brar and demanded a ransom of Rs.1 crore. He showed his inability to make
the payment of the ransom amount and also told the caller that he is busy. The
caller told him to call back. However, he did not call back the caller. On
25.01.2022, again a call was received on WhatsApp. Caller disclosed himself
to be Goldy Brar. He again told the caller that he was busy and would call
him back after some time. On 27.01.2022, he again received a call at 04.00
PM. The caller told him that despite making calls 2-3 times he (complainant)
has not called him (caller) back. He (complainant) was threatened with death.
Thereafter, he told the caller that he would call back after 10 minutes and
accordingly made a call. The caller demanded a ransom of Rs.1 crore. He
(complainant) expressed his inability to make the payment of the said ransom
amount. The caller replied that he (complainant) was a rich man and also
threatened that his children would be kidnapped. On being so threatened, he
offered to pay a ransom amount of Rs.5 lakhs. He was told to pay Rs.25 lakhs
and was directed to make the payment of Rs.10 lakh first and Rs.15 lakhs in
October. He was also told that he would receive another call and a person
would come and receive the money. On 28.02.2022 at 6-7 PM he received a
WhatsApp call from the petitioner-Manjit Singh @ Sonu asking him as to
whether he (complainant) was receiving phone calls from Goldy Brar. He
replied in the affirmative. The petitioner asked him (complainant) to come
and meet him at Panchkula. He went to meet the accused/petitioner at Sector-
20, Panchkula in the presence of Sandres Jamata and Rakesh Kalta. The
petitioner told him that Sampat Nehra was his brother-in-law and that he
(complainant) had committed to make a payment of Rs.25 lakhs and now he
could not retract from the commitment. He showed his inability to make the
payment of said amount. The petitioner told him that he would talk to Sampat
and thereafter he would not receive any call. On 01.02.2022 the
accused/petitioner called him and asked him to come to the office of Sandres
Jamata. He (complainant) was made to talk to Sampat on a video call and was
told to make the payment to the accused/petitioner. The accused/petitioner
and Sandres Jamata requested Sampat that he (complainant) could not make a
payment of Rs.15 lakhs and requested Sampat to receive a sum of Rs.10 lakh.
He (complainant) insisted that he did not have a sum of Rs.10 lakhs and then
was asked to make the payment of any amount he could make. He transferred
a sum of Rs.3 lakhs in the account number provided by the accused Manjit.
He paid a cash of Rs.4 lakhs in cash to the accused in the presence of Sandres
Jamata. On 04.02.2022 the accused Manjit connected him to Goldy Brar
through a video call. He was told that Rs.7 lakhs out of Rs.50 lakhs had been
received and the remaining amount be paid at the earliest. A phone call was
received by him from the accused Manjit Singh asking him not to pick any
phone call. Thereafter a threatening voice message was received from Goldy
Brar. He also stated that he suspected that all this was a ploy of the accused
3. The learned Senior counsel for the petitioner contends that the
petitioner had never made a demand for any money from the complainant.
The petitioner was trying to help the complainant against the demands made
by Sampat Nehra and Goldy Brar. The petitioner and the complainant had
their offices at Sector 20, Panchkula and it is only out of professional rivalry
that the complainant had falsely implicated the petitioner in this case. The
petitioner had no prior record and merely because he had some association
with Sampat Nehra would not imply his complicity in the illegal and unlawful
activities of the others. Even otherwise, it was highly unlikely that the
petitioner would take the ransom amount in his bank account as per the
allegations of the complainant. The entire case of the prosecution was based
on assumptions and disclosures extracted from the petitioner during the police
remand. Even otherwise, the petitioner had been in custody in since
08.02.2022, the investigation stood completed and since none of the 22
prosecution witnesses had been examined so far, the further incarceration of
the petitioner was not required as the Trial was not likely to be concluded
anytime soon. Even otherwise, the case was triable by the Court of a
4. On the other hand, Mr. C.S. Bakshi, Addl. P.P. for U.T.,
Chandigarh contends that the complainant had paid money to the petitioner at
the instance of Sampat Nehra who is a dreaded gangster lodged in jail. The
said Sampat Nehra was the brother-in-law of the petitioner. A sum of money
had also been transferred in the account of the petitioner. One Vishwajeet
alias Vishu had also handed over Rs.3 lakhs to the Investigating Officer on
the ground that he had been handed over the said money by the petitioner. The
petitioner on his arrest got recovered a country-made pistol, 04 live
cartridges, 01 mobile phone and 11 SIM cards. So, considering the nature of
the offence and the mode and manner in which it has been committed along
with the recoveries from the petitioner, the petitioner did not deserve the
concession of bail.
5. I have heard the learned counsel for both the parties.
6. Undoubtedly, the allegations against the petitioner are extremely
grave. Offences of this kind are certainly on the rise and must be nipped in the
bud. However, the veracity of the allegations would be a matter of
adjudication during the course of Trial. At this stage, the petitioner is in
custody since 08.02.2022. None of the 22 prosecution witnesses have been
examined so far and therefore, the Trial of the present case is not likely to be
concluded in the near future. Even otherwise, the case is a triable by the Court
of a Magistrate. In such a situation, the further incarceration of the petitioner
is not required.
7. Thus without commenting on the merits of the case, the present
petition is allowed and the petitioner-Manjit Singh @ Sonu is ordered to be
released on bail subject to his furnishing bail bonds and surety bonds to the
satisfaction of learned CJM/Duty Magistrate, concerned.
8. The petitioner shall deposit his passport with the Trial Court in
case it has not already been deposited.
9. The petitioner shall also appear before the police station
concerned on the first Monday of every month till the conclusion of the Trial
and inform in writing each time that he is not involved in any other crime
other than the cases mentioned in this order.
10. If the petitioner or his family members/associates make any
attempt to contact/threaten/intimidate the witnesses in the present case, the
State would be at liberty to move an application for cancellation of bail
granted vide this order.
10. In addition, the petitioner (or anyone on his behalf) shall prepare
an FDR in the sum of Rs.5,00,000/- and deposit the same with the Trial Court.
The same would be liable to be forfeited as per law in case of the absence of
the petitioner from trial without sufficient cause.
11. The petition stands disposed of. | The Punjab and Haryana High Court last week granted bail to a relative (brother-in-law) of alleged Gangster Sampat Nehra accused of receiving ransom money in his bank account.
Observing that offences of this kind must be nipped in the bud, the bench of Justice Jasjit Singh Bedi, however, went ahead to grant bail in view of the fact that the trial of the case is not likely to be concluded in the near future.
"10. Undoubtedly, the allegations against the petitioner are extremely grave. Offences of this kind are certainly on the rise and must be nipped in the bud. However, the veracity of the allegations would be a matter of adjudication during the course of Trial. At this stage, the petitioner is in custody since 08.02.2022. None of the 22 prosecution witnesses have been examined so far and therefore, the Trial of the present case is not likely to be concluded in the near future. Even otherwise, the case is a triable by the Court of a Magistrate. In such a situation, the further incarceration of the petitioner is not required," the bench remarked.
The case in brief
In this case, the accused/bail applicant was booked under Sections 387, 120-B IPC and Sections 25, 27, 54, 59 of the Arms Act pursuant to an FIR lodged by the statement of Angrej Singh (complainant) alleging that Goldy Brar (an alleged gangster) had been calling him repeatedly demanding a ransom of Rs. 1 crore from him.
He further alleged that he was told that he would receive another call and a person would come and receive the money and thereafter, the accused/petitioner herein called him and told him that the said money was required to be paid to him.
When the complainant expressed his inability to give a ransom of Rs. 25 lakhs, the accused made him talk to alleged gangster Sampat Nehra. Finally, the complainant agreed to give Rs. 7 lakhs and transferred Rs. 3 lakhs in the account number provided by the accused Manjit, and rest 4 lakhs were given to him in cash.
The accused was arrested on February 8, 2022, and he moved to the HC with the instant bail plea arguing that he never made a demand for any money from the complainant and in fact, the petitioner was trying to help the complainant against the demands made by Sampat Nehra and Goldy Brar.
It was further argued that the complainant had falsely implicated the petitioner in this case and that merely because he had some association with Sampat Nehra would not imply his complicity in the illegal and unlawful activities of the others.
On the other hand, the counsel for UT Chandigarh argued that the complainant had paid money to the petitioner at the instance of Sampat Nehra who is a dreaded gangster lodged in jail. Further, it was also submitted that the petitioner on his arrest got recovered a country-made pistol, 04 live cartridges, 01 mobile phone, and 11 SIM cards.
Taking into account the facts and circumstances of the case, the Court that though the allegations are grave, the veracity of the allegations would be a matter of adjudication during the course of the Trial. In view of this, the Court granted him bail.
Appearances: Senior Advocate Bipan Ghai, with Advocates Nikhil Ghai and Nipun Bhardwaj for the petitioner. Mr. C.S. Bakshi, Addl. P.P. appeared for the respondent UT.
Case title - MANJIT SINGH @ SONU .v. STATE OF U.T. CHANDIGARH |
ivil Appeal No. 2413 of 1989.
From the Judgment and Order dated 3.10.1988/12.10.1988 of the Central Administrative Tribunal, Hyderabad in O.A. No. 307 of 1987.
Anil Dev Singh, B. Parthasarthy, Hemant Sharma and C.V. Subba Rao for the Appellants.
Mrs. Kitty Kumaramangalam, Ms. Vijayalaxmi, Kailash Vasdev, P. Parmeshwaran and A.T.M. Sampath for the Respond ent.
The Judgment of the Court was delivered by AHMADI, J.
The Central Administrative Tribunal, Hydera bad by its order dated 3rd October, 1988 held that the Divisional Railway Manager (BG) SC Railway, Secunderabad was not competent to pass the impugned order dated 25th April, 1986 retiring the railway servant Shaik Ali from service under Rule 2046(h)(ii) of Indian Railway Establishment Code, Volume II Pension Rules (hereinafter called 'the Code ').
The Union of India feeling aggrieved by the said order has come in appeal to this Court by special leave.
The respondent Shaik Ali joined the erstwhile Nizam State Railway Service as Pointsman in 1953 or thereabouts and secured promotions from time to time in the course of his service, the last promotion being as Yard Master in the revised scale of Rs.550 750 on 31st January, 1986.
The facts show that he was on duty between 14.00 and 22.00 hours on 23rd February, 1986 at Sanatnagar Station.
As his reliever did not turn up at 23.00 hours, he was compelled to perform 459 duty from 22.00 hours to 08.00 hours of 24th February, 1986.
At about 23.15 hours, he permitted the staff working under him to have their meals and report for duty as soon as possible.
As the staff members did not return to duty within a reasonable time he went towards the cabin where they usually took their meals.
At that time the Divisional Safety Officer, A. Bharat Bhushan, came down from the cabin and inquired of the respondent 's identity.
The respondent coun tered by inquiring about the identity of the said officer.
It is the respondent 's say that as he did not know the said officer he asked for his identity before disclosing his identity.
The officer was annoyed at the behaviour of the respondent and threatened him with dire consequences.
It is the respondent 's case that immediately thereafter he was placed under suspension.
When he went to meet the officer at the suggestion of the Station Superintendent, the said officer behaved rudely and refused to listen to his explana tion.
By a subsequent order dated 19th March, 1986, the respondent was kept under further suspension w.e.f. 4th March, 1986.
He was not charge sheeted nor was any inquiry held against him but he was visited with the order of prema ture retirement dated 25th April, 1986, the relevant part whereof reads as under: "Whereas the Divisional Railway Manager (BG), Secunderabad is of the opinion that it is in the public interest to do so.
Now therefore, in exercise of the powers conferred by Clause (h)(ii) of Rule 2046 of Indian Railway Establishment Code, Volume II Pension Rules, the Divisional Railway Manager (BG), Secunderabad hereby retires Shri Shaik Ali, Assistant Ward Master, Sanatnagar with immediate effect that he having already completed 30 years of qualify ing service.
It was further directed that the respondent should be paid a sum equivalent to the amount of his pay plus allowances for a period of three months in lieu of three months notice calculated at the rate at which he was drawing salary imme diately before his retirement.
The respondent challenged this order of premature retirement by preferring an applica tion under Section 19 of the .
The Central Administrative Tribunal after reading the relevant Rule 2046(h)(ii) with Para 620(ii) of the Railway Pension Manual came to the conclusion that the Divisional Railway Manager who passed the impugned order of premature retirement was not competent to make such an order.
In taking this view the Tribunal relied on an earlier 460 decision of the Full Bench in AISLJ wherein it held that the highest authority among_ the appointing authorities alone was competent to impose any of the punish ments specified in Article 311 of the Constitution.
In this view that the Tribunal took, the Tribunal set aside the impugned order of premature retirement dated 25th April, 1986.
It is against the said order that the Union of India has preferred this appeal.
Under Rule 2046(a) of the Code ordinarily every railway servant would retire on the day he attains the age of 58 years.
However, notwithstanding the said provision, Rule 2046(h) entitles the appointing authority to retire him before he reaches the age of superannuation.
Rule 2046(h), insofar as it is relevant for our purposes, reads as under: "2046(h).
Notwithstanding anything contained in this rule, the appointing authority shall, if it is of the opinion that it is in the public interest to do so, have the absolute right to retire any railway servant giving him notice of not less than three months in writ ing or three months ' pay and allowances in lieu of such notice (i) if he is in Class I or Class II service or post and had entered Government service before attaining the age of thirty five years, after he has attained the age of fifty years.
(ii) in any other case after he has attained the age of fiftyfive years.
" Since the respondent was indisputably in Class III service at the time the impugned order came to be made his case was governed by the second clause of Rule 2046(h).
The impugned order recites that the respondent had already completed thirty years of qualifying service but it does not state that he had attained the age of fifty five years.
The re spondent 's contention was that he could not be prematurely retired under clause (ii) of Rule 2046(h) since he had not attained the age of fifty five years on the date of the impugned order.
According to him he was running 54th year on that date.
That obviously took his case out of the purview of the said rule.
Realising this difficulty an attempt was made by the department to fall back on paragraph 620(ii) of the Railway Pension Manual which reads as under: 461 "620(ii).
The authority competent to remove the railway servant from service may also require him to retire any time after he has completed thirty years ' qualifying service provided that the authority shall give in this behalf, a notice in writing to the railway servant, at least three months before the date on which he is required to retire or three month 's pay and allowances in lieu of such notice.
" Reliance was also placed on the decision of this Court in Union of India vs R. Narasimhan, ; in support of the contention that a railway servant governed by the Railway Pension Manual may be prematurely retired by 'the authority competent to remove him from service ' on his completing thirty years of qualifying service.
Under this rule, power is conferred on the authority competent to remove him from service to retire a railway servant who has completed thirty years of quarrying service regardless of his age.
The Tribunal took the view that although Rule 2046(h)(ii) would not be attracted in the absence of evi dence that the incumbent had attained the age of fifty five years, the department would be entitled to rely on para 620(ii) to support the order if it can show that the officer who passed the order was competent to do s0 under the said paragraph.
The Tribunal was however, of the opinion that since the power under paragraph 620(ii) could be exercised only by the authority competent to remove the railway serv ant from service, the Divisional Railway Manager not being such authority was not competent to pass the impugned order and hence the order was clearly void and inoperative in law.
In taking this view, the Tribunal relied on an earlier Full Bench decision referred to above.
We were told that as the said Full Bench decision of the Tribunal was under scrutiny by this Court, this Civil Appeal should be tagged on with similar matters pending in this Court.
However, the learned counsel for the respondent employee submitted that it was not necessary to tag on this matter with other matters arising out of the Tribunal 's Full Bench decision since in the instant case she proposed to support the Tribunal 's order on the twin grounds (i) that paragraph 620(ii) was ultra vires Article 14 of the Constitution and (ii) that the impugned order was punitive in nature and could not have been passed without a proper enquiry.
Insofar as the first contention is concerned she placed reliance on this Court 's decision in Senior Superintendent of Post Office & Ors.
vs Izhar Hussain; , wherein a similar Rule 2(2) of the Liberalised Pension Rules, 1950 was struck down as offending Article 14 of the Constitution.
So far as the second limb of her submission is concerned she stated that the respondent had been promoted to the post of Yard Master on 31st 462 January, 1986 and hence there was no occasion to prematurely terminate his service by the impugned order.
In Izhar Hus sain 's case the Court was concerned with F.R. 56(j) and Rule 2(2) of the Pension Rules.
F.R. 56(j) is substantially the same as Rule 2046(h)(ii) of the Code and Rule 2(2) is sub stantially the same as paragraph 620 with which we are concerned.
Since Rule 2(2) has been struck down as violative of Article 14 of the Constitution, paragraph 620(ii) would meet the same fate.
The learned counsel for the Railway Administration, realising this difficulty tried to support the impugned order on the ground that it was in public interest to retire the respondent.
Counsel for the respond ent contended that the railway administration has been shifting its stand, it first passed the impugned order under Rule 2046(h)(ii) of the Code and then relied on Rule 2(2) of the Pension Rules and when that was found to be of no as sistance switched over to paragraph 620(ii) of the Railway Pension Manual and is now trying to support the order on an extraneous ground which does not find a mention in the impugned order.
We think the criticism is well founded.
We are, therefore, of the view that apart from the competence of the Divisional Railway Manager to pass the order, the impugned order cannot be supported under paragraph 620(ii) for the aforesaid reason.
We next find that the learned counsel for the responden temployee is on terra firma so far as the second limb of her contention is concerned.
The facts clearly reveal that after the respondent joined the Nizam.
State Railway service in 1953 he secured promotions in due course and was appointed an Assistant Yard Master by an order dated 22nd August, 1984.
Thereafter, he was promoted to the next higher post of Yard Master by the order of 31st January, 1986.
While he was discharging duties as Yard Master On 24th February, 1986, the incident in question occurred which is said to be form ing the basis for the impunged order of 25th April, 1986.
We find from the facts that the Divisional Safety Officer was annoyed by the fact that the respondent had demanded that he disclose his identity before he (the respondent) did so.
The respondent was immediately placed under suspension and the said officer refused to listen to his explanation.
The suspension order was further extended by the order of 19th March, 1966.
This was followed by the impugned order of retirement dated 25th April, 1986.
The order was passed under Rule 2046(h)(ii) of the Code without verifying whether or not the incumbent had attained the age of fiftyfive years.
Even if the order was intended to be under Rule 2(2) of the Pension Rules, this requirement had to be satisfied.
The immediate and proximate reason for passing the impugned order was undoubtedly the unfortunate incident of 23/24th February, 1986.
But for that 463 incident there was no occasion for the Review Committee to examine the case of the respondent.
If the service record of the respondent was so bad as is now sought to be made out, he would not have been promoted to the post of Assistant Yard Master on 22nd August, 1984 and later to the post of Yard Master on 31st January, 1986.
We are, therefore, satis fied that the impugned order of premature retirement is punitive in nature and having been passed in flagrant viola tion of the principles of natural justice cannot be allowed to stand.
For the above reasons (different from the one on which the Tribunal rounded its decision), we are of the opinion that the ultimate order passed by the Tribunal does not require interference.
We, therefore, dismiss this appeal with costs.
Cost quantified at Rs.3,000.
Before we part we may observe that the concerned author ities will do well to amend Rule 2(2) of the Pension Rules and Paragraph 620(ii) referred to above so as to incorporate therein the requirement of public interest, that is to say, the premature retirement on completion of qualifying service of thirty years can be ordered in public interest only.
G.N. Appeal dismissed. | The respondent, employed as Yard Master in the South Central Railway, was on duty between 14.00 and 22.00 hours on 23rd February '86.
In the absence of a reliever, he was to continue his duty till 8.00 hours on 24th February '86.
He allowed his staff to take meals and since they did not return within a reasonable time, he went towards the cabin where the staff usually took their meals.
The Divisional Safety Officer who was coming down from the cabin, enquired of the respondent 's identity.
The respondent in turn asked for the identity of the said officer.
The officer was an noyed at this and threatened the respondent with dire conse quences.
Immediately thereafter the respondent was placed under suspension.
Further suspension followed and the re spondent was visited with the order of premature retirement under Rule 2046 of Indian Railway Establishment Code.
Respondent challenged the said order before the Central Administrative Tribunal and the Tribunal, relying on its decision in Shri Gafoor Mia & Ors.
vs Director, DMRL, AISLJ held that the Divisional Railway Manager who passed the impugned order of premature retirement was not competent to make such an order, and set aside the order.
This appeal, by special leave, is against the Tribunal 's order.
Though under sub clause (ii) of rule 2046(h), a class III employee cannot be retired prematurely after he has attained the age of 55 years, (unlike officers of class I & II) this clause was invoked in the case of respondent who was admittedly in class III service and did not attain the age of 55 years.
Appellant relied on para 620(ii) of the Railway Pension 457 Manual which gives the authority power to remove from serv ice a railway servant after he completed 30 years service.
On behalf of Respondent, it was contended that the appellant had been shifting its stand and trying to support the order on an extraneous ground which did not find a place in the order viz. unsatisfactory service record of the respondent; and there is no basis for it in view of the promotionS secured by the respondent, the last of which was just before the premature retirement.
Dismissing the appeal, this Court, HELD: 1.1 The order was passed under Rule 2046(h)(ii) of the Indian Railway Establishment Code without verifying whether or not the incumbent had attained the age of fifty five years.
Since the respondent was indisputably in class III service at the time the order came to be made, his case was governed by the second clause of Rule 2046(h).
The impugned order recites that the respondent had already completed thirty years of qualifying service but it does not state that he had attained the age of fifty five years.
According to the respondent he was running 54th year on that date.
That obviously took his case out of the purview of the said rule.
Even if the order was intended to he under Rule 2(2) of the Liberalised Pension Rules, 1950, this require ment had to be satisfied.
The immediate and proximate reason for passing the impugned order was undoubtedly the unfortu nate incident of 23/24th February, 1986.
BUt for that inci dent there was no occasion for the Review Committee to examine the case of the respondent.
If the service record of the respondent was so bad as is now sought to be made out, he would not have been promoted to the post of Asstt.
Yard Master an 22nd August, 1984 and later to the post of Yard Master on 31st January, 1986.
The order of premature retire ment is punitive in nature and having been passed in fla grant violation of the principles of natural justice, cannot be allowed to stand.
[426G H; 460F G; 463A B] 1.2 F.R. 56(j) of the Fundamental Rules is substantially the same as Rule 2046(h)(ii) of the Railway Establishment Code and Rule 2(2) of the Liberalised Pension Rules, 1950 is substantially the same as paragraph 620 of Railway Pension Manual.
Since Rule 2(2) has been struck down as violative of Article 14 of the Constitution, paragraph 620(ii) would meet the same fate.
Apart from the competence of the Divisional Railway Manager to pass the order, the order cannot also he supported under paragraph 620(ii).
[462B D] 458 Senior Superintendent of Post Office & Ors., vs Izhar Hussain, ; , relied on.
Union of India vs R. Narasimhan, ; , referred to.
The authorities concerned will do well to amend Rule 2(2) of the Liberalised Pension Rules, 1950, and paragraph 620(ii) of the Railway Pension Manual, so as to incorporate therein the requirement of public interest, making it clear that premature retirement on completion of qualifying serv ice of thirty years can be ordered in public interest only.
[463C D] |
impugned order passed in Cr.M.P.No.1721 of 2021 in Spl.C.C.No.9 of 2020
on the file of the learned Special Court for POCSO Cases, Tirunelveli and
set aside the same and allow the set aside petition.
2. The learned counsel for the petitioner submitted that the petitioner
is the accused in Spl.C.C.No.9 of 2020 on the file of the learned Special
Court for POCSO Cases, Tirunelveli. He was charged for the offences under
Sections 366 (A) of IPC and Section 5(1), r/w 6 of POCSO Act. In this case,
so far 12 witnesses have been examined. P.W.2 is the victim girl and P.W.3
is the mother of the victim girl. Even though P.W.2 and P.W.3 were
examined in chief and cross-examined on 07.10.2021, in the cross
examination, some important defence with regard to the contradictions that
have been mentioned in the chief examination of P.W.2 and P.W.3 could
not be raised. Hence, the petitioner filed an application to recall P.W.2 and
P.W.3 under Section 311 Cr.P.C in Cr.M.P.No.1721 of 2021. By the
impugned order, dated 13.04.2022, the learned Judge, permitted to recall
P.W.3, mother of the victim girl for further cross-examination on payment
of cost and with regard to the victim P.W.2, dismissed the said petition. This
petition is partly allowed, on payment of cost of Rs.3,000/- on or before
29.04.2021 and permitted to recall for further cross-examination on
payment of batta and process to P.W.3 and with regard to P.W.2, the said
petition is dismissed. Aggrieved by this order, this petition has been filed.
3. The learned Government Advocate (Criminal Side) appearing for
the respondent submitted that so far, the trial Court examined P.W.1 to
P.W.12 and posted the matter on 01.07.2022 for further proceedings.
Already P.W.3 was permitted to recall, for further cross-examination and
P.W.2 being a victim girl, in order to avoid harassment to victim girl, the
petition was dismissed by the trial Court and there is no reason to interfere
with the order passed by the trial Court.
4. I have considered the rival submissions and on perusal of the
records, it is seen that the petitioner is an accused in Spl.C.C.No.9 of 2020
on the file of the Special Court for POCSO Cases, Tirunelveli. The
respondent police prosecuted the petitioner for having sexually harassed the
victim girl and the accused committed the offence punishable under
Sections 366(A) I.P.C, and Section 5(1) r/w 6 of POCSO Act. At the time of
occurrence, the victim girl was studying in the College, B.A. II year and the
occurrence took place in the year 2018 and at that time, the victim girl was
aged about 17 years.
5. On perusal of the impugned order passed by the learned trial Judge,
in view of the Section 33 (5) of POCSO Act, to avoid repeatedly harassing
the victim, the trial Court dismissed the petition with regard to P.W.2 and
with regard to P.W.3, the petition was allowed with cost of Rs.3,000/- to be
paid on or before 29.04.2021.
6. The learned counsel for the petitioner in support of the argument
relied upon the judgment of the Karnataka High Court in Crl.O.P.No.4449
of 2022, dated 06.06.2022 and submitted that once the victim crosses
18 years of age, the rigor of Section 33 (5) of the Act get diluted and in
order to give a fair chance to the petitioner/accused, the victim may be
recalled.
7. I have considered the submission made by the learned counsel for
the petitioner in this aspect. Admittedly, the victim was aged about 17 years
at the time of occurrence in the year 2018. Now, she becomes major and
also this incident happened due to the love affair between the petitioner/
accused and the victim girl. The father of the victim gave a complaint
against the accused. The statement was given by the victim under Section
161 Cr.P.C before the respondent police. He wants to expose the
contradictions in the statement of the victim before the trial Court. An
opportunity must be given to an accused to place his defence. Further
illustration Section 33 (5) of the Act is only to ensure that the child should
not be repeatedly called for the Court for examining as it would affect the
mind of the child. Now, the victim is not a child, and becomes major.
Therefore, by invoking Section 33 (5) of Act, to recall a victim for the
purpose of cross examination by the accused and in order to give a last
chance to the accused to place his defence to make prosecution of criminal
proceedings against him, P.W.2 may be recalled and the petitioner may be
permitted to cross-examine.
8. Therefore, the impugned order passed by the trial Court dismissing
the petition filed by the petitioner to recall P.W.2 for cross examination is
set aside and this petition is allowed. The trial Court is hereby directed to
recall P.W.2 for further cross examination and the petitioner is hereby
directed to cross-examine the P.W.2 and P.W.3 on the same day. It is further
directed to pay cost of the witnesses.
9. In the result, this Criminal Original Petition is allowed as above.
Consequently the connected Miscellaneous Petition is closed. | Observing that the accused must be given an opportunity to place his defence, the Madras High court recently allowed a POCSO accused's plea for recall of the victim for cross examination. The court explained that Section 33 (5) of the Act was introduced only to ensure that the child should not be repeatedly called to the Court for examining as it would affect the mind of the child. In the...
Observing that the accused must be given an opportunity to place his defence, the Madras High court recently allowed a POCSO accused's plea for recall of the victim for cross examination.
The court explained that Section 33 (5) of the Act was introduced only to ensure that the child should not be repeatedly called to the Court for examining as it would affect the mind of the child. In the present case, the victim was no longer a child and had attained majority. Hence, the victim could be called for cross examination to give a last chance to the accused to give his defence.
Justice V.Sivagnanam
observed as follows: Further illustration Section 33 (5) of the Act is only to ensure that the child should not be repeatedly called for the Court for examining as it would affect the mind of the child. Now, the victim is not a child, and becomes major. Therefore, by invoking Section 33 (5) of Act, to recall a victim for the purpose of cross examination by the accused and in order to give a last chance to the accused to place his defence to make prosecution of criminal proceedings against him, P.W.2 may be recalled and the petitioner may be permitted to cross-examine.
In the present case, the Petitioner was charged for the offences under Sections 366 (A) of IPC and Section 5(1), r/w 6 of POCSO Act. He had filed application under Section 311 Cr.P.C to recall the victim and her mother to bring forward certain contradictions in their statements which could not be addressed at the time of cross examination. The trial court allowed recalling of the mother of the victim and at the same time dismissed the petition for recalling the victim.
The State submitted that the order of the trial court was only passed to avoid further harassment of the victim girl and hence no interference warranted.
The court remarked that the complaint was filed by the father of the victim due to an alleged love affair between the petitioner and the victim. It was also admitted that the petitioner who was 17 year old at the time of the incident was now become major. Therefore, the accused should be given a chance to prove his case.
Thus, the order of the trial court dismissing the petition for cross examination was set aside. The court directed that the accused could cross examination the victim and her mother on the same day and also directed him to pay the cost to the witnesses.
Related Read: POCSO Act | Bar U/S 33(5) To Recall Minor Victim Not Applicable After Her Attaining Majority: Madras High Court
Case Title: Sankar v. State
Case No: CRL.O.P (MD) No.11427 of 2022
Counsel for the Petitioner: Mr.R.Karunanidhi
Counsel for the Respondent: Mr.R.Suresh Kumar, Government Advocate (Crl.Side) |
Mr. A.H.M. Vakil, Advocate for the Applicants.
Mr. A.R. Kale, APP, for the Respondent – State.
Mr. W.A. Shaikh, Advocate for the Respondent No. 2.
1. With consent, heard finally at the stage of
2. By this Application under Section 482 of the
Code of Criminal Procedure, the Applicants have sought
to quash the criminal proceedings bearing R.C.C. No.
50/2021 emanating from the first information report
bearing C.R. No. 280/2017, dated 07.11.2017 registered
at Phulambri Police Station for the offences punishable
under Sections 498-A, 323, 504, 506 read with 34 of the
3. The aforesaid crime was registered pursuant to
the first information report lodged by the Respondent
Malani Page 1 of 7
No. 2 against her husband and his parents being the
Applicant Nos. 1 to 3 respectively. The marriage of the
Applicant no.1 and the Respondent no. 2 was solemnized
on 31.05.2014. There was rift in the matrimonial ties
between the Respondent No. 2 and the Applicant No.1,
which led to filing of the first information report. In
the FIR, the Respondent No. 2 has alleged that the
Applicants demanded dowry of Rs. 5,00,000/- and that
they subjected her to physical and mental cruelty for
not meeting the unlawful demand. She claims that she
left her matrimonial home due to the ill-treatment
meted out to her. Based on these allegations, the
aforesaid crime came to be registered.
4. The crime was investigated and the charge-
sheet came to be filed. The charge was framed and the
applicants herein pleaded not guilty and claimed to be
tried. Upon considering the evidence adduced by the
prosecution, by judgement dated 01.03.2021, learned
Magistrate held the Applicants guilty of offences
punishable under Sections 498-A, 323 read with Section
34 of the Indian Penal Code and sentenced them to
undergo simple imprisonment of 6 month and fine of Rs.
Malani Page 2 of 7
2,000/- each, in default to sufffer one month simple
imprisonment for offences punishable under Section 498-
A read with 34 of IPC and to suffer simple imprisonment
of 3 month each and fine of Rs. 500/- each, in default
to suffer fifteen days simple imprisonment for offence
under Section 323 read with 34 IPC. Being aggrieved by
the said conviction and sentence, the Applicants
preferred Criminal Appeal No. 20/2021 before learned
District and Sessions Judge, Aurangabad, which is
pending hearing.
5. Learned Counsel for the Applicants and learned
Counsel for Respondent No. 2 state that during the
pendency of the Appeal, the parties have settled the
dispute amicably. It is stated that by way of Khula the
Applicant No. 1 and Respondent No. 2 have separated. As
per consent terms, the Respondent No. 2 has been paid
Rs. 3,25,000/- along with Meher amount.
6. The parties have invoked the jurisdiction of
this Court under Section 482 Cr.P.C post-conviction and
during the pendency of the appeal. It may be mention
that in the case of Ramawatar Vs. State of Madhya
Pradesh reported in 2021 SCC OnLine SC 966, one of the
Malani Page 3 of 7
questions before the Hon’ble Supreme Court was wehther
the jurisdiction of Supreme Court under Article 142 of
the Constitution of India can be invoked for quashing
the criminal proceedings arising out of a ‘non-
compoundable offence’. While answering the said
question, the Hon’ble the Supreme Court has observed
10. So far as the first question is
concerned, it would be ad rem to outrightly
refer to the recent decision of this Court
in the case of Ramgopal & Anr v. The State
of Madhya Pradesh5, wherein, a two Judge
Bench of this Court consisting of two of us
(N.V. Ramana, CJI & Surya Kant, J) was
confronted with an identical question.
Answering in the affirmative, it has been
clarified that the jurisdiction of a Court
under Section 320 Cr.P.C cannot be
construed as a proscription against the
invocation of inherent powers vested in
this Court under Article 142 of the
Constitution nor on the powers of the High
Courts under Section 482 Cr.P.C. It was
further held that the touchstone for
exercising the extra-ordinary powers under
Article 142 or Section 482 Cr.P.C., would
be to do complete justice. Therefore, this
Court or the High Court, as the case may
be, after having given due regard to the
nature of the offence and the fact that the
victim/complainant has willingly entered
into a settlement/compromise, can quash
proceedings in exercise of their respective
constitutional/inherent powers.
11. The Court in Ramgopal (Supra) further
postulated that criminal proceedings
Malani Page 4 of 7
involving non-heinous offences or offences
which are predominantly of a private
nature, could be set aside at any stage of
the proceedings, including at the appellate
level. The Court, however, being conscious
of the fact that unscrupulous offenders may
attempt to escape their criminal
liabilities by securing a compromise
through brute force, threats, bribes, or
other such unethical and illegal means,
cautioned that in cases where a settlement
is struck post-conviction, the Courts
should, inter-alia, carefully examine the
fashion in which the compromise has been
arrived at, as well as, the conduct of the
accused before and after the incident in
question. While concluding, the Court also
formulated certain guidelines and held:
“19… Nonetheless, we reiterate that
such powers of wide amplitude ought to
be exercised carefully in the context
of quashing criminal proceedings,
bearing in mind: (i) Nature and effect
of the offence on the conscious of the
society; (ii) Seriousness of the
injury, if any; (iii) Voluntary nature
of compromise between the accused and
the victim; & (iv) Conduct of the
accused persons, prior to and after the
occurrence of the purported offence
and/or other relevant considerations.”
13. We, however, put a further caveat
that the powers under Article 142 or under
Section 482 Cr.P.C., are exercisable in
post-conviction matters only where an
appeal is pending before one or the other
Judicial forum. This is on the premise that
an order of conviction does not attain
finality till the accused has exhausted
his/her legal remedies and the finality is
sub-judice before an appellate court. The
pendency of legal proceedings, be that may
before the final Court, is sine-qua-non to
Malani Page 5 of 7
involve the superior court’s plenary powers
to do complete justice. Conversely, where a
settlement has ensued post the attainment
of all legal remedies, the annulment of
proceedings on the basis of a compromise
would be impermissible. Such an embargo is
necessitated to prevent the accused from
gaining an indefinite leverage, for such a
settlement/compromise will always be loaded
with lurking suspicion about its bona fide.
We have already clarified that the purpose
of these extra-ordinary powers is not to
incentivise any hollow-hearted agreements
between the accused and the victim but to
do complete justice by effecting genuine
settlement(s).
7. From a plain reading of this judgement, it is
clear that powers under Section 482 of Cr.P.C can be
exercised in post conviction matters when an appeal is
pending before one or the other judicial forum. In the
instant case, as noted above, it is stated that the
appeal filed by the Applicants is pending before the
Sessions Court, Aurangabad. Hence, there is no embargo
in exercising power under Section 482 of Cr.P.C to
quash present proceedings at post conviction stage,
particularly considering the fact that the proceedings
are emanating from the matrimonial dispute.
8. The Respondent No. 2 is present before the
Court. She confirms that she and the Applicant No. 1
have separated by way of Khula. She has further
Malani Page 6 of 7
admitted having received Rs. 3,25,000/- along with
Meher from the Applicant No. 1. She has given no
objection to quash the proceedings. It is stated that
the Applicants have no other criminal antecedents. We
are satisfied that the settlement is voluntary and
9. Considering the nature of accusations and
particularly that the parties have now decided to put
an end to their strained relationship and move on with
life, we are of the view that this is a fit case to
exercise inherent power of this Court under Section 482
of Cr.P.C. to secure the ends of justice. Under the
circumstances, the Application is allowed in terms of
prayer clause ‘B’. Consequently, the criminal
proceedings bearing R.C.C. No. 50/2021 & the first
information report bearing C.R. No. 280/2017, dated
07.11.2017 registered with Phulambri Police Station for
the offences punishable under Sections 498-A, 323, 504,
506 read with 34 of the Indian Penal Code, are hereby
quashed and set aside qua the present Applicants.
Malani Page 7 of 7 | There is no embargo on quashing a case emanating from a matrimonial dispute even after conviction when an appeal is pending, the Bombay High Court said while quashing a domestic violence case filed by the wife against her husband and in-laws. The accused in the case had been convicted by the trial court in March 2021.
A division bench of Justices Anuja Prabhudessai and RM Joshi observed that the high court's powers under Section 482 of CrPC can be exercised in post-conviction matters when an appeal is pending before a judicial forum.
The court noted that the parties had settled the matter and the wife had voluntarily accepted the settlement. “Considering the nature of accusations and particularly that the parties have now decided to put an end to their strained relationship and move on with life, we are of the view that this is a fit case to exercise inherent power of this Court under Section 482 of Cr.P.C. to secure the ends of justice,” it observed.
The husband and his family approached the court last year for quashing the 2017 case registered under Sections 498A, 323, 504, 506 of the IPC. The couple had married in 2014. The woman alleged ill-treatment and dowry demand of Rs. 5 lakh. Following a trial, the court convicted the accused and sentenced them to six months in prison in March 2021.
Before the high court, it was argued that the parties have amicably settled the dispute and the couple have separated by way of a Khula. According to the consent terms, the husband paid the wife Rs. 3.25 lakhs along with the meher amount.
The court was told that an appeal against the conviction is pending. Reliance was placed on the Supreme Court's decision in Ramawatar Vs. State of Madhya Pradesh reported in 2021 SCC OnLine SC 966.
In the ruling, the Supreme Court noted that in Ramgopal & Anr v. The State of Madhya Pradesh, it has been held criminal proceedings involving non-heinous offences or offences which are predominantly of a private nature, could be set aside at any stage of the proceedings, including at the appellate level.
In Ramawatar, the apex court put a further caveat that the powers under Article 142 or under Section 482 Cr.P.C., be exercised in post-conviction matters only where an appeal is pending before one or the other Judicial forum.
"From a plain reading of this judgement, it is clear that powers under Section 482 of Cr.P.C can be exercised in post conviction matters when an appeal is pending before one or the other judicial forum. In the instant case, as noted above, it is stated that the appeal filed by the Applicants is pending before the Sessions Court, Aurangabad. Hence, there is no embargo in exercising power under Section 482 of Cr.P.C to quash present proceedings at post conviction stage, particularly considering the fact that the proceedings are emanating from the matrimonial dispute," the division bench said.
The court said the woman has given no objection for quashing of the proceedings and it is stated that applicants have no other criminal antecedents. "We are satisfied that the settlement is voluntary and genuine," it said, while quashing the case.
Case Title: Shaikh Shaukat S/O Majit @ Majid Patel and Ors. v. State of Maharashtra and Anr. |
In this appeal the appellant has challenged the
judgment dated 03.03.2014 passed in
M.V.C.No.1847/2010 by the Principal Senior Civil
(Hereinafter referred to as ‘Tribunal' for short).
2. The appellant-insurance company was the
second respondent, respondent Nos.1 and 2 were
the petitioners, and respondent No.3 was respondent
No.1 before the Tribunal. The parties will be referred
with respect to their status before the Tribunal for
the sake of convenience.
3. Briefly stated, the facts are that, one Ravi,
the deceased, was the son of the first petitioner and
brother of second petitioner. They were the residents
of Mudigere Taluk. The deceased was suffering from
Jaundice. On 13.04.2010, for higher treatment, he
was carried in an Ambulance bearing No.KA-13/M-
0472 from Chikmagalur to Mangalore. At about 2.30
a.m., at Kodekkal Railway over bridge, Alape village
it was driven by its driver in a rash and negligent
manner and toppled, causing injures to the
deceased. He was succumbed to the injuries at
4. The petitioners moved the Tribunal seeking
compensation that the deceased died on account of
the accident. The claim was opposed by the
respondents on the ground that there is no nexus
between the accident and death of the deceased.
The Tribunal considering the evidence awarded
compensation of Rs.5,50,000/- with interest @ 6%.
5. The Insurance Company is before this court
on the ground that there was no nexus between the
accident and death of the deceased. FSL report has
suggested that the death was due to lobor
Pneumonia and Tuberculosis with mild steatosis of
liver, and it was not on account of the accident. The
Tribunal ought to have rejected the claim and also
urged that the income taken and assessment of
dependency was on higher side.
6. Heard Smt.H.R.Renuka, learned counsel for
the insurer and Sri.P.Karunakar, learned counsel for
the petitioner No.2. Respondent/Petitioner No.1 died
during the pendency of this appeal.
7. It has been argued by learned counsel for
the insurer referring to FSL report that death of the
deceased was due to his ailment for which he was
being carried to Mangalore and the Tribunal has
committed an error in assessing the compensation
instead of dismissing the claim.
8. Per contra, learned counsel for the
petitioners submitted that the deceased though was
suffering from illness, he was being carried to
Mangalore, if he had been admitted to Mangalore
Hospital, he would have been survived with proper
treatment, but because of the accident, his ailment
was aggravated and for this reason, he died and FSL
report is nothing to do with it and the death was on
account of the accident and there is a nexus.
9. I have given my anxious consideration to the
arguments advanced on both sides and perused the
materials on record.
10. There is no dispute that the deceased was
suffering from jaundice and the cause of death as
mentioned in the FSL report was on account of
Jaundice. If the deceased was carried to provide him
with better treatment, if he had treated at Mangalore
his ailment could have been cured and walked out of
the hospital, jaundice is not a fatal ailment, better
treatment is available at higher medical centers like
Mangalore and for that reason, he was being carried
in an Ambulance. The driver though knew that he is
carrying a patient, did not take precaution while
driving, instead, he negligently caused the accident,
due to the impact, the ailment of the deceased was
aggravated and the patient died in the hospital.
Hence, there is nexus to accident and cause of death
of the deceased, but the percentage may vary and
therefore, there is no sound argument on behalf of
the insurance company. Hence, the ground urged for
dismissal of claim cannot be supported with.
11. Insofar as award of compensation is
concerned, the Tribunal has taken the income of the
deceased at Rs.5,000/- per month and deducted
50% towards personal expenses and applied the
multiplier of '17' for the age of the deceased at 26
years and assessed loss of dependency at
Rs.5,10,000/-. Under conventional heads, awarded
Rs.40,000/-, in all Rs.5,50,000/-.
12. At the time of accident, deceased was alive,
because of the accident he died. The reason for the
death has nexus to the accident though his serious
ailment aggravated death. Even assuming for the
sake of argument that the accident may have
impacted and aggravated the ailment, but it cannot
be more than 50%. The accident was of the year
2010, the deceased was a bachelor aged 26 years,
he was an earning member, without proof of income,
his income is taken at Rs.5,500/- and 40% of future
prospects Rs.2,200/- is added in view of National
Insurance Co.Ltd. -vs- Pranay Sethi and
Others1 case, then it comes to Rs.7,700/- if 50% of
the impact is taken out, then it will come to
Rs.3,850/-, since the deceased was a bachelor,
another 50% is taken out towards personal
expenses, it comes to Rs.1,925/- multiplied by '17',
the loss of dependency comes to Rs.3,92,700/-
13. Under the conventional heads, for love and
affection Rs.40,000/-, loss of estate and funeral
expenses Rs.15,000/- each if added, then
compensation will come to Rs.4,62,700/- as against
a sum of Rs.5,50,000/-. Hence, the second
petitioner being the unmarried sister since father
died during pendency of the appeal, is entitled to
Rs.4,62,700/- as against Rs.5,50,000/- awarded by
the Tribunal. Accordingly, the appeal needs to be
allowed and order of the Tribunal needs modification.
14. In the result, I pass the following:
The appeal is allowed in part.
The judgment and award passed by the
Tribunal stands modified.
The petitioner No.2 is entitled to compensation
of Rs.4,62,700/- with interest @ 6% per annum from
the date of petition till its realization.
The 2nd respondent is directed to satisfy the
award within 8 weeks from the date of receipt of
certified copy of this judgment.
The amount in deposit, if any, shall be
transmitted to the Tribunal for disbursal forthwith. | The Karnataka High Court has said that an insurance company is liable to pay compensation to a patient who succumbs to his ailments, when the ambulance in which he is being shifted to a hospital for better treatment meets with an accident.
A single judge bench of Justice T.G.Shivashankare Gowda turned down the contention of the National Insurance Company Ltd and upheld the order passed by the Motor Accident Claims Tribunal granting compensation to the claimants of the deceased Ravi.
The deceased was suffering from Jaundice. On 13.04.2010, for better treatment, he was carried in an Ambulance from Chikmagalur to Mangalore. At Kodekkal Railway over bridge, the ambulance which was driven by its driver in a rash and negligent manner toppled, causing injuries to the deceased. Later he succumbed to the injuries at Mangalore Hospital.
The insurance company primarily contended that there was no nexus between the accident and death of the deceased. It banked upon the FSL report which suggested that the death was due to lobor Pneumonia and Tuberculosis with mild steatosis of liver, and it was not on account of the accident. Thus it claimed that the Tribunal ought to have rejected the claim.
The claimants opposed the plea saying that had the deceased been admitted to Mangalore Hospital, he would have survived with proper treatment, but because of the accident, his ailment was aggravated and for this reason, he died and FSL report is nothing to do with it and the death was on account of the accident and there is a nexus.
The bench on going through the records said “If the deceased was carried to provide him with better treatment, if he had treated at Mangalore his ailment could have been cured and walked out of the hospital, jaundice is not a fatal ailment, better treatment is available at higher medical centres like Mangalore and for that reason, he was being carried in an Ambulance.”
Further it said “The driver though knew that he was carrying a patient, did not take precaution while driving, instead, he negligently caused the accident, due to the impact, the ailment of the deceased was aggravated and the patient died in the hospital.”
Following which it held “Hence, there is nexus to accident and cause of death of the deceased, but the percentage may vary and therefore, there is no sound argument on behalf of the insurance company. Hence, the ground urged for dismissal of the claim cannot be supported with.”
The court modified the order of the tribunal which had granted a compensation of Rs.5,50,000 with interest @ 6% under different heads to a compensation of Rs.4,62,700 with interest @ 6% per annum.
Case Title: National Insurance Company Ltd And Menpa Maistry & others
Case No: MFA NO.4286 OF 2014
Appearance: Advocate H.R. Renuka for appellant; Advocate P. Karunakar for R2. |
1. The Appellant has challenged the Judgment and order
dated 11/09/2017 passed in Sessions Case No.152 of 2015 by
learned Additional Sessions Judge, Kalyan. The Appellant was
convicted for commission of offence punishable U/s.307 of I.P.C.
and was sentenced to suffer R.I. for 7 years and to pay fine of
Rs.3000/- and in default of payment of fine to suffer S.I. for 3
months. He was given benefit of set off U/s.428 of the Cr.p.c. The
Appellant was acquitted from the Charges of commission of
offence punishable U/s.150, 152 and 155 of the Indian Railways
2 of 21 205-apeal-128-18 (Judgment)
2. Heard Shri. Swapnil Ovalekar, learned appointed
Advocate for the Appellant and Shri. Agarkar, learned APP for the
3. Learned APP has submitted a report from the
Superintendent of Nashik Road Central Prison dated 18/07/2022.
It is mentioned in the report that the Appellant had suffered actual
imprisonment of 5 years, 4 months and 8 days till 15/05/2022.
After that he was released on Covid-19 parole and then he has not
4. The prosecution case is that the injured Nandkumar
Joshi in this case was travelling in a bogie for handicapped persons
in Kasara bound local train. He boarded the train at Dombivali. At
that time, the Appellant was standing at the door. It was difficult
for the injured to enter the bogie and, therefore, there was some
heated exchange of words. The other passengers supported the
injured. One of them even slapped the Appellant. There was
further trouble. The Appellant scuffled with others and pushed the
injured Joshi from the bogie from a running train. Joshi fell down
3 of 21 205-apeal-128-18 (Judgment)
and suffered compound fracture of his right elbow. He also
suffered injuries on his head. The co-passengers caught the
appellant in the bogie itself. Somebody pulled the chain. The train
stopped at Kalyan station. In the meantime, the injured had
walked back upto Dombivali railway station. He was helped by
railway police. The Appellant was brought from Kalyan and was
handed-over to the police. The F.I.R. was lodged. The investigation
was carried out. The charge-sheet was filed and the case was
committed to the court of Sessions.
5. During trial, the prosecution examined 13 witnesses
including the injured Nandkumar Joshi, two eye witnesses, the
Motorman and the Guard of the local train, two Medical officers,
G.R.P. personnels, Deputy Station Master of Kalyan Railway station
and two Investigating Officers.
6. The defence of the Appellant was that, he was travelling
in that local train in a bogie for handicapped people. A passenger
asked him to get down. He told him that he would get down on
the next station, but the passengers started abusing and beating
4 of 21 205-apeal-128-18 (Judgment)
him with kicks and fist blows, though he was standing at the inner
side of the bogie. A false case was lodged against him. He has not
committed anything wrong.
His defence was not accepted by learned trial Judge.
He believed the evidence of the prosecution. According to learned
trial Judge, all the ingredients of Section 307 of I.P.C. were made
out. After recording his conclusion, he convicted and sentenced the
Appellant, as mentioned earlier.
7. The prosecution case unfolds through the evidence of
PW-1 Nandkumar Joshi. He has deposed that, he was having issue
of blood pressure. He boarded a fast local train going towards
Kasara at 7.19p.m. on 09/01/2015 from Dombivli railway station.
He boarded a bogie for handicapped persons. The Appellant was
standing at the door obstructing the entrance. PW-1 requested him
to shift aside, but the Appellant started abusing and assaulting him
with fists. The other passengers tried to pacify him, but he was not
in a mood to listen. One of the co-passengers slapped the
Appellant on the back side. PW-1 tried to intervene and stop the
5 of 21 205-apeal-128-18 (Judgment)
quarrel, but the Appellant was angry with him due to the incident
at the entrance of the bogie. He pushed the PW-1 from the bogie.
PW-1 fell down. His right hand was fractured at the elbow joint.
He also received six severe injuries to his head. He went towards
Dombivli by walking. According to him, the incident took place between
Dombivali and Thakurli railway station. He reached the platform
No.2 of the Dombivali railway station. Somebody took him to the
railway police on platform No.3. A memo from the Station Master
was obtained and the PW-1 was taken to Shastri Nagar Hospital.
The Medical Officer gave him first aid treatment and referred him
to Sion Hospital. Till then his relatives came there. Then he was
taken to Sai Sadan Hospital, Kalyan; where he was treated further.
The police came to Sai Sadan Hospital and recorded his F.I.R. The
F.I.R. was produced on record at Exhibit 15. He was hospitalized
for about 9 to 10 days. He identified his own blood stained clothes
in the Court. He also identified the Appellant in the Court.
In the cross-examination, he deposed that, while
lodging his F.I.R. he had mentioned that the said boy scuffled with
him when he entered the bogie, however, that particular portion
6 of 21 205-apeal-128-18 (Judgment)
was not mentioned in his statement before the police and he could
not assign any reason as to why the word ‘scuffle’ was not
mentioned in his statement. He was suffering from high blood
pressure and he agreed that if his blood pressure shot up, he felt
giddiness and usually fell down. On 09/01/2015, his blood
pressure was high. He accepted that, because of heavy crowd there
was no place to sit in the bogie. He denied the suggestion that, he
fell down due to giddiness suffered because of blood pressure.
After the incident, he saw the Appellant for the first time while his
evidence was recorded in the Court. His F.I.R. at Exhibit 15
substantially corroborated his evidence.
8. PW-4 Ashwin Purohit was one of the co-passengers. He
has deposed that, he was travelling in the same bogie at the time
of incident. PW-1 boarded the bogie at Dombivli railway station.
There was exchange of words between the Appellant and PW-1.
During that quarrel somebody shouted that, ‘uncle fell down from
the train’. PW-4 and others tried to pull the chain, but the train did
not stop. Some passengers caught the Appellant. The local train
arrived at Kalyan station. Then they alighted at Kalyan railway
7 of 21 205-apeal-128-18 (Judgment)
station and approached the R.P.F. office and reported the incident.
The Appellant was handed-over to R.P.F. officials. Then he was
handedover to Dombivli police. This witness stated that, he was
not in a position to identify the Appellant because he had seen him
only once at the time of the incident. Thus, his evidence describes
the incident in general and is not of much help to either the
prosecution or the defence. Its Evidentiary value is limited. It only
corroborates the prosecution case to a certain extent and
demonstrates that the incident had taken place.
9. PW-9 Vivek Bhor is another important eye witness. He
has deposed that the incident took place on 09/01/2015. He
caught the Kasara local train at Mulund station at 07.08p.m. One
physically normal boy entered their bogie. The others told him to
get down, but he started quarreling with them. At Dombivli
railway station, PW-1 boarded the bogie. He also asked the
Appellant why he had boarded that bogie and there was quarrel.
The Appellant started scuffling and beating PW-1. This witness has
further deposed that, the Appellant pushed PW-1 thrice. He pushed
on his chest and therefore, PW-1 fell down. Then he also pushed
8 of 21 205-apeal-128-18 (Judgment)
PW-1’s legs. PW-1 fell down between Thakurli and Kalyan. The
other passengers caught the Appellant. One Ashwin Purohit
(PW-9) travelling in the train pulled the chain and also caught the
Appellant. The others also helped him in catching the Appellant.
The local train did not stop at Thakurli station, but stopped at
Kalyan railway station at about 7.30p.m. Then railway officers
along with R.P.F. came there. The Appellant was handed over to
them. This witness identified the Appellant in the Court as the
person who had pushed the PW-1 from the train. There were
certain portions of his depositions which were not mentioned by
him in his police statement. Those portions in the form of
omissions were put to him. He could not explain as to why those
portions were not appearing in his police station. He could not
explain why it was not mentioned that, PW-1 was talking with the
Appellant angrily, or that the Appellant beat PW-1, or that the
Appellant pushed PW-1 thrice, or that he had given two jerks on
the chest and one jerk on the leg. All these omissions were
important, however, the defence has not taken care to prove these
omissions through the evidence of the Investigating officer.
9 of 21 205-apeal-128-18 (Judgment)
Therefore, those omissions cannot be used by the defence in this
From the evidence of these three witnesses i.e. PW-1,
PW-4 and PW-9 the incident is established as to how the PW-1 was
pushed by the Appellant outside the running train. The other
evidence is mostly supportive in nature.
10. PW-2 Harjiram Menon was Deputy Station Master at
Kalyan Railway station. He has deposed that the concerned local
arrived at Kalyan at 7.28p.m. The motorman gave a specific sound
indicating an emergency and seeking help. The railway officials
went to the local train and heard the noise from the coach for
handicapped persons. They went there and found that the
Appellant was caught by some passengers. The R.P.F. personnels
were called. The boy was handedover to them and then he was
taken to G.R.P. police station, Kalyan. This witness identified the
Appellant in the Court. Thus, this witness has not deposed about
the main incident, but has given evidence about handing over of
the Appellant to the police officers.
11. PW-3 Sachin Ugale was attached to G.R.P. Kalyan. He has
deposed in a similar fashion as deposed by PW-2. He has deposed
that, after the co-passengers had apprehended the Appellant, he
was handed over to G.R.P. police station at Kalyan railway station.
The co-passengers Vivek Bhor – PW-9 and Ashwin Purohit – PW-4
were with him. The incident had taken place within the
jurisdiction of G.R.P. Dombivli police station and, therefore, the
Appellant was taken there and was handed over to P.S.O. of
Dombivali G.R.P. police station.
12. PW-5 Suresh Jadhav was a point-man on platform Nos.4
and 5 of Kalyan railway station. He has also spoken about the co-
passengers having caught the appellant. He has supported the
evidence of PW-2 and 3.
13. PW-6 Soheb Shaikh was a pancha in whose presence
personal search of the Appellant was conducted and then clothes
of the injured PW-1 were seized. Those panchanamas were
produced on record at Exhibit 33 and 34.
14. PW-7 Ramgopal Verma was a Motorman of the said local
11 of 21 205-apeal-128-18 (Judgment)
train. He has deposed that the train halted at Dombivli platform at
7.25p.m. Thereafter it started from Dombivli and had reached
around Thakurli. He noticed the buzzer and audio sound
indicating chain pulling. According to him, at that time, the speed
of his local train was upto 100 Kms. per hour, but because of that
sound he reduced the speed to about 20Kms. per hour. Then he
gave a signal to the Guard who responded by giving normal buzzer
after verifying the situation. Therefore, he took the train to Kalyan
railway station. Then he gave whistle sound indicating some
trouble. The Station Master responded and then the Appellant was
15. PW-8 Prakash Swami was the Guard on that train. He
has deposed similar to PW-7.
16. PW-10 Dr. Majetia Shamjibhai and PW-11 Dr. Swapnil
Zambre were examined by the prosecution to prove injuries. Both
of them had treated the injured PW-1. It is hardly in dispute that
the injured PW-1 had suffered following injuries:
i) Compound fracture injury on right forearm.
12 of 21 205-apeal-128-18 (Judgment)
ii) Multiple C.L.W. on scalp over left ear-pinna.
In the cross-examination of PW-10, he accepted that if
the blood pressure shoots up the person may feel giddiness and
because of fall due to giddiness these injuries were possible. He
also accepted that there was no abnormalities in the brain of PW-1.
17. PW-11 Dr. Zambre elaborated and deposed that, there
was Grade 3 B open fracture of radius ulna with bone loss. Size of
the injury was 8cm x 6cm x bone deep. The nature of injury was
grievous and dangerous to life. The injuries were possible if a
person was pushed from a running train. The second stage surgery
failed and the patient was advised for third stage surgery, but the
patient did not respond positively. All the medical papers were
produced on record. This witness also accepted that PW-1 was
suffering from blood pressure and those injuries were possible if a
person fell down from a running train because of giddiness caused
by blood pressure.
18. PW-12 P.S.I. Jayant Dumbre was attached to Dombivali
(Railway) police station. He has deposed that, PW-1 came to their
13 of 21 205-apeal-128-18 (Judgment)
police station at about 10.00p.m. to 10.15p.m. and narrated the
incident. PW-1 was sent to Shastri Nagar Hospital, Dombivli along
with memo issued by the Station Master of Dombivli railway
station. The report of PW-1 was reduced into writing in the
hospital. This witness had carried out personal search of the
Appellant brought by two passengers. The clothes of the victim
were seized. The medical papers were collected by him. He
identified the Appellant before the Court.
19. PW-13 Mahesh Bagve was the next Investigating Officer.
He had recorded the statements of various witnesses. He carried
out the remaining investigation and had submitted the charge-
20. Learned counsel for the Appellant made following
That the prosecution has not proved its case beyond
reasonable doubt. The evidence of PW-1, PW-4 and PW-9 is not
consistent. PW-9 himself has given contrary answers and there are
major omissions in his evidence. The injuries could have been
14 of 21 205-apeal-128-18 (Judgment)
possible because of the fall caused by high blood pressure. The
nature of injuries do not match with the description of the
21. Learned APP, on the other hand, submitted that the
prosecution has proved its case through the evidence of PW-1, PW-
4 and PW-9. Rest of the evidence sufficiently corroborates their
version. The Appellant was caught at the spot by co-passengers.
The PW-4 and PW-9 have specifically deposed about his arrest.
22. I have considered these submissions. The evidence of
PW-1, PW-4 and PW-9 is consistent on major aspects. Though there
are minor discrepancies regarding some minor details, the incident
as a whole is consistently deposed by them. There are some
omissions in the evidence of PW-9 Vivek Bhor, but as mentioned
earlier, these omissions are not proved through the evidence of the
Investigating Officer. Even if those omissions are ignored, the
consistent fact which is proved by the prosecution beyond
reasonable doubt is that, after PW-1 boarded the train there was a
quarrel between him and the Appellant. There was also scuffle and
15 of 21 205-apeal-128-18 (Judgment)
quarrel between the Appellant and other passengers. In that
incident the Appellant deliberately pushed the PW-1 from a
running train. The PW-1 fell down and suffered these injuries.
Though, PW-4 had not actually seen the PW-1 falling from the
train, the PW-1 himself has deposed that, because of the push
given by the Appellant, he had fallen down. To that extent, the PW-
9 has supported the version of PW-1. Thus, the prosecution has
proved that, because of the quarrel the appellant got angry and he
deliberately pushed the PW-1 from a running train.
23. The Appellant was caught in the bogie itself by co-
passengers. This fact is consistently deposed and proved through
the evidence of PW-4 and PW-9. In that behalf, both these
witnesses corroborate each other. They are further corroborated by
the evidence of PW-2 the Deputy Station Master of Kalyan Railway
station, PW-3 Sachin Ugale – G.R.P. personnel and PW-5 Suresh
Jadhav. These witnesses have deposed as to how the Appellant was
already caught by the co-passengers and how he was taken in their
custody by the officers. Thus, the prosecution has also proved that
the Appellant was caught by the co-passengers in the bogie itself
16 of 21 205-apeal-128-18 (Judgment)
after he had pushed the PW-1 from a running train. Though, PW-4
has not identified the Appellant, the PW-1, PW-9 and other
witnesses have identified the Appellant. Thus, the prosecution has
proved that the co-passengers had caught the Appellant in the
bogie after the incident. He was immediately caught at the scene
of offence.
24. The medical evidence is also clear enough. The PW-11
has deposed that the injury was grievous and dangerous to life.
The injuries suffered by PW-1 are undisputed. Though, the injuries
are possible by falling from a running train; it is also established
that the Appellant had pushed the PW-1 and, therefore, he has
caused those injuries to PW-1.
25. PW-7 Ramgopal Verma was a Motorman and in spite of
having received an indication of chain pulling, he went ahead upto
Kalyan railway station because of the signal given by the Guard.
He has deposed that the train was running at a speed of 100 Kms.
per hour when he received the signal of chain pulling. The incident
had taken place soon after the train had left the Dombivli railway
17 of 21 205-apeal-128-18 (Judgment)
station. The train was gathering speed. But when the PW-1 fell
down, the prosecution has not proved that, at that point of time
the train was running at a speed of 100 Kms. per hour. The chain
was pulled after the PW-1 had already fallen down from the bogie.
Thus, the prosecution has not proved that, at that point of time the
train was running in a high speed. What is proved by the
prosecution is that the injured PW-1 was pushed from a running
train and that itself was dangerous. The prosecution has also not
established whether the injured PW-1 fell on another railway track
or on the side where there was no to and fro traffic of the local
trains. This aspect is important in considering whether the
Appellant had requisite intention necessary U/s.307 of I.P.C.
Thus, from the above discussion, I am of the opinion
that the prosecution has proved beyond reasonable doubt that, in
the quarrel and scuffle the Appellant had deliberately pushed the
PW-1 from a running train, causing grievous injury.
26. The next crucial question is whether the offence would
fall within the four corners of Section 307 of I.P.C. In that behalf,
18 of 21 205-apeal-128-18 (Judgment)
the prosecution evidence is lacking. The prosecution case falls
short of proving offence U/s.307 of I.P.C. From the evidence
discussed above, it is clear that the Appellant was not knowing the
injured PW-1. There was no premeditation and no preparation for
commission of offence. The incident had taken place suddenly as a
result of sudden quarrel. In that quarrel the Appellant got angry
and pushed PW-1 from a running train. Therefore, his intention or
knowledge cannot be stretched to conclude that he attempted to
commit murder of PW-1. Though, it is proved that the injured PW-
1 had suffered grievous injury, which was even dangerous to his
life, the requisite intention and knowledge mentioned U/s.307 of
I.P.C. is not proved. From the nature of evidence, in my view,
though the ingredients of Section 307 of I.P.C. are not proved, the
ingredients of Section 308 of I.P.C. are proved by the prosecution.
Section 308 of I.P.C. reads thus:
“308. Attempt to commit culpable homicide. -
Whoever does any act with such intention or
knowledge and under such circumstances that, if
he by that act caused death, he would be guilty of
culpable homicide not amounting to murder, shall
be punished with imprisonment of either
description for a term which may extend to three
years, or with fine, or with both; and, if hurt is
caused to any person by such act, shall be
punished with imprisonment of either description
for a term which may extend to seven years, or
with fine, or with both.”
27. As mentioned earlier, it was a sudden fight and,
therefore, there was no premeditation or preparation. At the same
time, the Appellant had pushed the injured from a running train,
therefore, he can be attributed knowledge that his act was
endangering to life of the PW-1. Therefore, his act would fall
within the meaning of Section 308 of I.P.C. To that extent, the
conviction recorded against the Appellant needs to be modified
and instead of Section 307 of I.P.C. the Appellant will have to be
convicted U/s.308 of I.P.C. which is a lesser offence. Since, in the
incident hurt is caused to PW-1, the maximum punishment
prescribed U/s.308 of the I.P.C. can extend to 7 years. But in the
present case, looking at the nature of injuries suffered by PW-1, it
is not a case where maximum punishment is required to be
imposed on the Appellant. At the time of arrest, the Appellant was
hardly of 22 years old. He was recently married and was blessed
20 of 21 205-apeal-128-18 (Judgment)
with a child only a few days before the incident. These are the
mitigating circumstances in deciding the quantum of sentence. The
Appellant has already suffered 5 years, 4 months and 8 days of
imprisonment for his act. Thus, the sentence can be reduced to the
period he has already undergone.
28. With the result, following order is passed:
i) The Appeal is partly allowed.
ii) The conviction and sentence of the Appellant
recorded U/s.307 of the I.P.C. is set aside.
iii) Instead, the Appellant is convicted for commission
of offence punishable U/s.308 of the I.P.C. His
sentence is reduced to the period which he has
already undergone.
iv) The imposition of fine of Rs.3000/- and in default
of payment of fine, sentence to suffer S.I. for 3
months is maintained.
v) The Appellant is granted benefit of Section 428 of
the Cr.p.c. | The Bombay High Court recently set aside a 22-year-old man's attempt to murder conviction observing that there was no premeditation as he pushed the victim from a running train in a sudden quarrel. The court convicted him under section 308 of the IPC (attempt to commit culpable homicide) instead.
"There was no premeditation and no preparation for commission of offence. The incident had taken place suddenly as a result of sudden quarrel. In that quarrel the Appellant got angry and pushed PW-1 from a running train. Therefore, his intention or knowledge cannot be stretched to conclude that he attempted to commit murder of PW-1. Though, it is proved that the injured PW 1 had suffered grievous injury, which was even dangerous to his life, the requisite intention and knowledge mentioned U/s.307 of I.P.C. is not proved. From the nature of evidence, in my view, though the ingredients of Section 307 of I.P.C. are not proved, the ingredients of Section 308 of I.P.C. are proved by the prosecution", the court held.
The court was dealing with a criminal appeal against appellant's was conviction under section 307 (attempt to murder) of the IPC. Appellant was sentenced to rigorous imprisonment of 7 years and fine of Rs 3,000 by the trial court.
Till May 15, 2022 he had suffered actual imprisonment of 5 years 4 months and 8 days and was released on COVID parole.
The court considered the mitigating factors such as young age and recent marriage of the appellant and reduced the sentence to the period he had already suffered. "At the time of arrest, the Appellant was hardly of 22 years old. He was recently married and was blessed with a child only a few days before the incident. These are the mitigating circumstances in deciding the quantum of sentence", the court stated.
The prosecution's case was that the injured Nandakumar Joshi was travelling in a bogie for handicapped persons in a local train to Kasara. There was a quarrel with the appellant who was standing at the door. The quarrel led to a scuffle between the appellant, Joshi and other passengers and he pushed Joshi from the running train.
The court perused the witness testimonies before the trial court and concluded that the witness statements are consistent regarding the major aspects. There are minor discrepancies but the incident as a whole is consistently deposed by them, the court said.
The court said that the prosecution has proved beyond reasonable doubt that there was a quarrel between the injured and the appellant. There was a scuffle between the appellant and the other passengers and the appellant deliberately pushed the injured down from a running train.
The court noted that according to the medical evidence, the injuries suffered by Joshi were grievous and dangerous to his life. These injuries are possible from a running train and since the appellant pushed him, he has caused these injurious.
Therefore, the prosecution has proved beyond reasonable doubt that in the quarrel and scuffle, the appellant deliberately pushed the injured from the running train causing grievous injury, the court held.
However, the court said that the prosecution's evidence is lacking with respect to section 307 of the IPC. The appellant did not know the injured and there was no premeditation for the offence.
However, the court said that the prosecution has proved ingredients of section 308 of the IPC. While there was no premeditation, "the Appellant had pushed the injured from a running train, therefore, he can be attributed knowledge that his act was endangering to life of the PW-1. Therefore, his act would fall within the meaning of Section 308 of I.P.C.", the court held.
Considering the injuries caused to the injured, the court said that maximum punishment is not required in this case and reduced the sentence to the period he has already undergone imprisonment.
Case no. – Criminal Appeal No. 128 of 2018
Case title – Mohammad Azad Alam Diljad Ansari v. State of Maharashtra |
This appeal is filed challenging the judgment and award
dated 20.04.2013, passed in M.V.C.No.717/2011, on the file of
Tribunal’ for short) praying to modify the judgment and award.
2. The factual matrix of the case of the claimant before
the Tribunal is that in an accident he had sustained the injuries
on account of rash and negligent driving of the motor vehicle
insured with respondent No.1 and the Tribunal awarded
compensation of amount of Rs.2,88,000/- with interest at the
rate of 7% per annum. Being aggrieved by the same, the
claimant is in appeal before this Court.
3. The learned counsel for the appellant would
vehemently contend that the Tribunal has committed an error in
taking the income of the appellant as Rs.4,000/- per month
instead of Rs.6,501/- per month, as the appellant was drawing
monthly salary of Rs.6,501/- by working in BSS Micro Finance
Pvt. Ltd., Kondajji Road, Davanagere. The Tribunal committed
an error in awarding lesser compensation under the head future
loss of income. The Tribunal committed an error in not awarding
any amount under the head future medical expenses and
incidental expenses. The learned counsel would contend that
the Tribunal committed an error in directing respondent Nos.1
and 2 to pay the compensation and the liability of the Insurance
Company is exonerated in coming to the conclusion that the
offending vehicle was not registered and as such, temporary
registration which was issued to the said vehicle was also
expired on the date of the accident.
4. The learned counsel would contend that the Full
Bench of this Court in the case of NEW INDIA ASSURANCE
CO. LTD. v. YALLAVVA AND ANOTHER passed in
M.F.A.No.30131/2010 dated 12.05.2020, while answering the
questions referred held that, the Insurer is liable to pay the third
party and recover from the insured even if there is breach of any
condition recognized under Section 149(2), even if it is a
fundamental breach (that is breach of condition which is the
cause for the accident) and the insurer proves the said breach in
view of the mandate under Section 149(1) of the Act. But, no
such order can be passed against the insurer, if, on the facts and
circumstances of a case, a finding is given by the court that the
third party (injured or deceased) had played any fraud or was in
collusion with the insured, individually or collectively, for a
wrongful gain to themselves or cause wrongful loss to the
insurer. The Court can also fasten the absolute liability on the
insurer, if there is any breach of condition which is enumerated
under Section 149(2) of the Act or any other condition of the
policy if the Insurance Company has waived breach of any such
condition or has taken the special responsibility to pay by
collecting extra premium by covering any type of risk depending
upon facts of each case.
5. The learned counsel referring this judgment would
contend that even if the Court comes to the conclusion that
there is a breach of any condition recognized under Section
149(2) of the MV Act, even if it is a fundamental breach, the
insurer is liable to pay the third party and recover the same from
the insured.
6. Per contra, learned counsel for the Insurance
Company would vehemently contend that Section 39 of the MV
Act is very clear that no person shall drive any motor vehicle and
no owner of a motor vehicle shall cause or permit the vehicle to
be driven in any public place or in any other place unless the
vehicle is registered in accordance with this Chapter and the
certificate of registration of the vehicle has not been suspended
or cancelled and the vehicle carries a registration mark displayed
in the prescribed manner.
7. The learned counsel for the Insurance Company
referring Section 39 of the MV Act would contend that when such
prohibition is made under the MV Act, the Insurance Company is
not liable to pay the compensation. The learned counsel would
contend the Yellavva case (supra) cannot be applied to the case
on hand and it is an admitted fact that as on the date of the
accident, the temporary registration of the vehicle was expired
and hence the question of shifting the liability does not arise.
The learned counsel submits that the insured has not filed any
appeal challenging the judgment and award of the Tribunal. The
learned counsel contend that the question of directing to pay and
recover does not arise since it is a fundamental breach.
8. Having heard the respective learned counsel and also
on perusal of the material available on record, the points that
arise for the consideration of this Court are:
(i) Whether the Tribunal has committed an error
in not awarding just and reasonable
compensation as contended in the appeal?
(ii) Whether the Tribunal has committed an error
in fastening the liability on the insured instead
of insurer as contended in the appeal?
9. It is the claim of the claimant that he met with an
accident when he was proceeding towards his office and the
driver of the Tata Ace caused the accident and as a result, he
had sustained grievous injuries and he was shifted to C.G.
Hospital, Davanagere and thereafter to S.S. Hospital,
Davanagere and also he took treatment at Kasturba Hospital,
Manipal as an inpatient. It is also his claim that he was earning
Rs.6,501/- per month by working in BSS Micro Finance Pv.t Ltd.,
but due to the impact of the accident, he became permanently
disabled. The accident in question was alleged to have been
occurred on account of the negligence on the part of the driver
of the Tata Ace. The claimant in support of his contention
examined himself as P.W.1 and also examined the doctor as
P.W.2 to substantiate his claim of disability and another witness
as P.W.3 and got marked the documents at Exs.P.1 to 51. On
the other hand, the respondent examined three witnesses as
R.W.1 to R.W.3 and got marked the temporary registration
certificate as Ex.R.1, copy of the policy as Ex.R.2, certified copy
of ‘B’ register extract as Ex.R.3, certified copy of RC extract as
Ex.R.4 and certified copy of F.C. extract as Ex.R.5. The
Tribunal after considering the material available on record comes
to the conclusion that the temporary registration of the vehicle
was expired and as on the date of the accident, there was no
registration certificate.
10. Having perused the wound certificate, which is
marked as Ex.P.6, it discloses that he had suffered right
proximal humerus fracture and there was a lacerated wound
over the knee and there was a fracture of C1 and C2. The same
is evident from the treatment summary issued by Kasturba
Hospital, which are marked as Exs.P.8 and 9. Having
considered Exs.P.8 and 9, it is clear that he had suffered
humerus fracture and fracture of C1 and C2. When such being
the case, it is appropriate to award an amount of Rs.50,000/-
as against Rs.30,000/- under the head pain and suffering.
11. The Tribunal awarded an amount of Rs.45,000/-
under the head medical expenses, diet, nourishment and
attendant charges. On perusal of the medical bills, which have
been marked as Exs.P.12 to 37, it amounts to Rs.37,765.61/-
towards purchase of drugs and medicines and the same have not
been disputed. He was hospitalized in Kasturba Hospital from
22.01.2011 to 12.03.2011 and as per Ex.P.8, he was once again
hospitalized in the same hospital from 01.06.2011 to 24.06.2011
and once again he was admitted on 07.07.2012 and the Tribunal
failed to take note of the period of treatment and awarded only
Rs.7,000/- under the head food and nourishment, attendant
charges, conveyance charges and the medical bills amounts to
Rs.37,765/-. In all, granted an amount of Rs.45,000/-. Taking
note of the medical bills produced, it is appropriate to award an
amount of Rs.50,000/- under the head medical expenses and
an amount of Rs.13,000/- under the head conveyance,
attendant charges and other incidental expenses since he was an
inpatient for one month 19 days at the first instance and in the
second instance for a period of 23 days.
12. The Tribunal awarded an amount of Rs.20,000/-
under the head loss of income during the laid up period and he
had suffered fracture of humerus and fracture of C1 and C2 and
he was in the hospital for more than 2½ months. It was an
accident of the year 2011 and the notional income would be
Rs.6,500/- per month. Having considered the fractures
sustained, it requires minimum six months for uniting of fracture
and for rest. Hence, taking the income of Rs.6,500/- per month
and laid up period as six months, the loss of income during the
laid up period comes to Rs.39,000/- (Rs.6,500/- x 6).
13. The Tribunal awarded an amount of Rs.1,72,800/-
under the head loss of future income on account of permanent
physical disability. The doctor assessed the disability of 60% to
particular limb and the Tribunal considering 1/3rd of it, rightly
taken the disability of 20% to the whole body. Taking the
income of Rs.6,500/- per month, disability of 20% to the whole
body and applying the relevant multiplier of ‘18’ as he was aged
about 22 years, the loss of future income comes to
Rs.2,80,800/- Rs.6,500/- x 12 x 18 x 20%).
14. The Tribunal awarded an amount of Rs.20,000/-
under the head loss of amenities and enjoyment of life and the
compensation awarded is on the lesser side since he is aged
about 22 years and he has to lead rest of his life with disability
of 20% and hence it is appropriate to enhance the same to
Rs.30,000/- as against Rs.20,000/-.
15. In all, the claimant is entitled for compensation of
Rs.4,62,800/- as against Rs.2,88,000/-.
16. Now coming to the aspect of liability is concerned,
the Tribunal while answering issue No.4, comes to the conclusion
that on the date of the accident, the temporary registration was
expired and records also discloses that FC was valid from
18.11.2011 to 20.01.2013 for a period of two years since the
vehicle was a new vehicle. It is the contention of the Insurance
Company that as on the date of the registration of the vehicle as
per Ex.R.4, 21.01.2011, it had no FC. The temporary
registration certificate would be issued only after verifying the
FC. The non-registration of the offending vehicle as on the date
of the accident is an undisputed fact and the vehicle had no
permanent registration and the temporary registration was also
expired. The main contention of the learned counsel for the
claimant is that even if there is a fundamental breach, if the
injured is a third party, in view of the judgment of this Court in
the case of Yellavva (supra), the Insurance Company is liable to
pay the third party and recover the same from the insured even
if there is breach of any condition recognized under Section
149(2) of the MV Act. On the other hand, it is the contention
of the Insurance Company that Section 39 of the MV Act
discloses with regard to the necessity of registration of the
17. This Court would like to rely upon the judgment of
this Court in the case of SRI RAJA LINGAIAH v. SRI MANJU
@ MANJA AND ANOTHER reported in 2014 SCC Online KAR
7099, wherein in paragraph No.4 in a similar circumstance of
expiry of the temporary registration, observed that on the date
of the accident, the registration certificate was expired.
However, the insurance certificate was in force. The Insurance
Company, while issuing certificate of insurance, was aware that
the insured vehicle had registration certificate only for a period
of 30 days. If it was the intention of the Insurance Company to
cover the risk of the vehicle during the currency of registration
certificate, the Insurance Company should have issued the policy
covering the risk of the vehicle till the date of expiry of the
registration certificate. It should have been specifically stated in
the certificate that certificate of insurance policy would be
effective as long as registration certificate is current. The
Insurance Company having received the premium for one year
cannot contend that it is not liable to pay the compensation,
more particularly when the claim is made by a third party.
18. The Division Bench of this Court in the case of
ORIENTAL INSURANCE COMPANY LIMITED v. SMT.
SAVITHRI HUDGE AND ANOTHER reported in 2014 SCC
Online KAR 12505, while answering point No.1, considered the
material on record and held that, if there is breach of the terms
and condition of policy, issued by the insurer, then, it is very
much open for it to proceed against the owner of the offending
vehicle and it is not justifiable for the insurer to shirk its
responsibility from indemnifying the injured claimant, on the
ground that the vehicle was not duly registered as on the date of
the accident and extracted the provisions of Section 149 of the
MV Act and held that the insurer is liable to indemnify the award
and thereafter recover the same from the owner, if there is
breach or violation of terms and conditions of the policy, in
accordance with law.
19. The Madras High Court in its judgment in the case of
v. VALLI AND OTHERS reported in 2020 SCC Online Madras
5214, in paragraph No.5 discussed with regard to the contention
of the Insurance Company that the insured vehicle was not
having valid registration on the date of the accident and there
was breach of policy terms and violation of provisions of Motor
Vehicles Act. Having considered the material on record, held
that on the date of the accident on 06.12.2011, the vehicle had
no valid registration number. It amounts to violation of Motor
Vehicles Act. However, the Insurance Company is bound to pay
the claimants and to recover the same from the owner.
20. Having considered the principles laid down in the
judgments of this Court and Madras High Court referred supra
and also considering the material facts of the case on hand,
admittedly the claimant is a third party and Tata Ace driver
drove the vehicle in a rash and negligent manner and dashed
against the claimant. This Court in the case of Raja Lingaiah
(supra), held that the Insurance Company having received the
premium for one year cannot contend that it is not liable to pay
the compensation, more particularly when the claim is made by
a third party. The Division Bench of this Court in the case of
SAVITHRI HUDGE (supra), held that the Insurance Company
has to indemnify the claimant and recover the same from the
insured. The Madras High Court in the case of VALLI (supra)
held that the Insurance Company is bound to pay the claimants
and to recover the same from the owner. Hence point (ii) is
answered accordingly that the Insurance Company has to
indemnify the claimant and recover the same from the insured.
21. In view of the discussions made above, I pass the
(i) The appeal is allowed in part.
(ii) The impugned judgment and award of the
Tribunal 20.04.2013, passed in
M.V.C.No.717/2011, is modified granting
compensation of Rs.4,62,800/- as against
Rs.2,88,000/-, with interest at 7% per annum
from the date of petition till deposit.
(iii) The Insurance Company is directed to pay the
compensation amount with interest within six
weeks from today and recover the same from
the insured.
(iv) The Registry is directed to transmit the records
to the concerned Tribunal, forthwith. | The Karnataka High Court has reiterated that even if the court comes to the conclusion that there is a breach of any policy condition recognized under Section 149(2) of the Motor Vehicles Act, the insurer is liable to compensate the third party and recover the same from the insured.
A single judge bench of Justice HP Sandesh allowed an appeal filed by claimant Basavaraja Beerappa Kambali in part and modified the order of the Tribunal by directing Cholamandalam MS General Insurance Company (respondent No.1) to pay the compensation amount with interest within six weeks and recover the same from the insured.
The tribunal had fastened the liability on the insured instead of insurer. Reversing the same the bench said, "The Insurance Company has to indemnify the claimant and recover the same from the insured."
The claimant had met with an accident in 2013 and sustained injuries on account of rash and negligent driving of the motor vehicle insured with respondent No.1. The Motor Accident Claims Tribunal had awarded compensation of Rs.2,88,000, with interest at the rate of 7% per annum.
In its judgment and award dated 20.04.2013, the Tribunal had exonerated the liability of the Insurance Company and had directed the private respondents (owner and driver of offending vehicle) to pay the compensation. The direction was made upon concluding that the offending vehicle was not registered and its temporary registration had also expired on the date of the accident.
The bench observed that admittedly, the claimant is a third party and Tata Ace driver drove the vehicle in a rash and negligent manner and dashed against the claimant. It relied on the case of Raja Lingaiah v. Sri Manju @ Manja & Anr., where it was held that Insurance Company having received the premium for one year cannot contend that it is not liable to pay the compensation, more particularly when the claim is made by a third party.
It also referred to Oriental Insurance Company Limited v. Smt. Savithri Hudge & Anr., where it was held that the Insurance Company has to indemnify the claimant and recover the same from the insured.
Following which it held, "The Insurance Company has to indemnify the claimant and recover the same from the insured."
Case Title: BASAVARAJA BEERAPPA KAMBALI v. THE CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LTD & others
Case No: M.F.A. NO.9207/2013
Date of Order: 02-12-2022
Appearance: V.B. SIDDARAMAIAH, ADVOCATE for appellant; O. MAHESH, ADVOCATE FOR R1. |
MEP Infrastructure Developers Ltd & Anr v South Delhi Municipal Corporation & Ors
SHEPHALI through Mr Shashwat Singh,
Infrastructure and Developers Ltd,
MEP Infrastructure Developers Ltd & Anr v South Delhi Municipal Corporation & Ors
Through its Commissioner Office at:
Office at: Dr Shyam Prasad Mukherji
MEP Infrastructure Developers Ltd & Anr v South Delhi Municipal Corporation & Ors
MEP Infrastructure Developers Ltd & Anr v South Delhi Municipal Corporation & Ors
for the petitioner Mr Venkatesh Dhond, Senior
in wp 10304/2022, Advocate, with Rashmin
MEP Infrastructure Developers Ltd & Anr v South Delhi Municipal Corporation & Ors
for respondents Mr Gaurav Joshi, Senior Advocate,
nos. 1 to 5 in both wp with Sanjay Vashishtha, Shreyas
for the petitioner Mr Sanjay Vashishtha, with Shreyas
in wp/8677/2022 Shrivastava, Tanmay Bidkar &
for respondent no. 4 Mr Deepak Deshmukh, with Swati
in writ petition no. Singh & Vivek Dwivedi, i/b
for respondent no. 3 Mr Vishal Pattabiraman, with Sonal
kalyan janata Sanap, i/b Apex Law Partners.
sahakari bank ltd in
1. MEP Infrastructure Developers Limited (“MEPIDL”) is at
loggerheads with the Municipal Corporation of Delhi (“MCD”;
previously the South Delhi Municipal Corporation). The dispute is
about the recovery by the MCD of a large sum of money that it says
is due from MEPIDL. Writ Petition No. 10304 of 2022 is by
MEP Infrastructure Developers Ltd & Anr v South Delhi Municipal Corporation & Ors
MEPIDL (“the MEPIDL Petition”). Writ Petition No. 8677 of
2022 is by the MCD, (“the MCD Petition”).
2. In the MEPIDL Petition, the prayers after amendment are
“a. Issue a writ of certiorari or a writ in the nature of
certiorari or any other appropriate orders or directions
calling for the records of the case pertaining to the
Impugned Notices (Exhibit-A-1 & A-2), the Impugned
Warrants of Distress (Exhibit-C-1, C-2 & C-3) the Impugned
2nd Set of Warrants of Distress (Exhibit-OO-1, OO-2) and
Impugned Attachment Notices (Exhibit-PP-1 & PP-2) issued
by Respondent No. 4, and after perusing the legality and
propriety of the process, be pleased to quash and set aside
b. this Hon’ble Court be pleased to issue a writ of
mandamus, or a writ in the nature of mandamus or any
other appropriate writ, order or direction under Article 226
of the Constitution of India prohibiting the Respondents
No. 9 to 12 from taking any action against the Petitioner
pursuant to and/or in furtherance of and/or
implementation of the Impugned Notices and Impugned
c. this Hon’ble Court be pleased to issue a writ of
mandamus, or a writ in the nature of mandamus or any
other appropriate writ, order or direction under Article 226
of the Constitution of India prohibiting the Respondents
No. 6 to 8 from taking any action against the Petitioner
pursuant to and/or in furtherance of and/or
implementation of the Impugned Warrants of Distress;
(c-1) this Hon’ble Court be pleased to issue a writ of
mandamus, or a writ in the nature of mandamus or any
other appropriate writ, order or direction under Article 226
MEP Infrastructure Developers Ltd & Anr v South Delhi Municipal Corporation & Ors
of the Constitution of India prohibiting the Respondents
No. 11 and 12 from taking any action against the Petitioners
pursuant to and/or in furtherance of and/or
implementation of the 2nd set of Warrants of Distress and
3. MCD seeks these reliefs in its Petition.
“A. This Hon’ble Court be pleased to direct the
Respondent No. 3 to recall its notices dated 04.01.2022
issued to the defaulter and declare the same as illegal and
without the authority of law.
B. This Hon’ble Court be pleased to direct the Respondent
No. 3 to refrain from issuing any letter, information, or
communication, whether formally or informally to the
defaulter that may pre-empt the defaulter into removing its
money from the bank account maintained by the defaulter
with Respondent No. 3.
C. This Hon’ble Court be pleased to direct the
Respondent No. 2 to take appropriate penal action against
the Respondent No. 3 for acting without the authority of
law in issuing and pre-empting the defaulter by way of the
notice dated 04.01.2022.”
4. The MEPIDL Petition is against several Respondents, 12 in
all, including the MCD, its Commissioners, two banks and then,
importantly for our purposes, the District Magistrate at Chandivali,
Powai, the Tahsildar Executive Magistrate, Kalyan, the Tahsildar
Executive Magistrature at Kurla. Also joined as Respondents by an
amendment are the District Collector Mumbai Suburban and the
District Collector Thane. In the MCD Petition, the Respondents are
MEP Infrastructure Developers Ltd & Anr v South Delhi Municipal Corporation & Ors
apart from the State of Maharashtra, the District Collector at
Thane, one of the banks and MEPIDL.
5. A compact statement of facts may be taken from the MCD
Petition. The MCD is a statutory body. Its governing statute is the
Amongst its various functions, the MCD collects toll tax from
commercial vehicles entering Delhi from as many as 1024 toll gates
or entry points around Delhi. This is said to be one of the principal
sources of revenue for all municipal corporations of Delhi.
6. The MCD says that it does not itself have in-house manpower
to collect toll tax at these various collection points. It cannot
monitor the quite considerable daily cash collections. The work is
thus contracted out on a lumpsum basis to various third parties.
This is done under the Delhi Municipal (Toll Tax) Bye-Laws 2007,
which are to be read with Section 113 of the DMC Act.
7. According to the MCD, MEPIDL, a Mumbai-based
enterprise, made a bid for collection of toll tax from all MCD toll
gates/check posts at the many entry points into Delhi. The parties
executed a contract on 28th September 2017. We note at the
forefront that we are not concerned in these Petitions with the
merits of the disputes arising from that contract. It is enough to note
that the contract required MEPIDL to make a specified weekly
remittance to the MCD. This was expressed also in terms of an
annual remittance and was subject to a periodic enhancement.
Other remittances were also to be made. According to MCD, an
MEP Infrastructure Developers Ltd & Anr v South Delhi Municipal Corporation & Ors
amount of about Rs. 100 crores was to be paid monthly towards toll
tax. The contract in question required MEPIDL to recover other
charges such as environment compensation charges, and these too
had to be remitted to the MCD.
8. MCD’s case is that MEPIDL failed to make these
remittances. A large amount fell due. The contract itself provided
for a penalty. MCD imposed that penalty. It also served several
demand notices amount by various communications from 3rd
November 2017 till 14th February 2021.
9. There seemed to be no resolution to these disputes. MCD
terminated the contract by a notice dated 16th March 2020.
10. The scene now shifts to MEPIDL’s dispute about the
termination and the MCD’s demands. This took place in the Delhi
High Court where MEPIDL filed a Writ Petition challenging the
termination. That was dismissed on 9th April 2021. We are told
there is a Letters Patent Appeal pending against that order. Again,
this is not our concern except to the limited extent to note that the
matter is squarely within the seisin of the Delhi High Court.
11. On 10th April 2021, according to the MCD, MEPIDL was
indebted to the MCD in an amount of nearly Rs. 4,000/- crores. Mr
Joshi for MCD says that figure has gone up considerably since.
12. The disputed question is this. MCD has set about recovering
its claim. MEPIDL is not a Delhi-based enterprise. It has no assets
MEP Infrastructure Developers Ltd & Anr v South Delhi Municipal Corporation & Ors
in Delhi. But it has considerable assets, both movable and
immovable, within the jurisdiction of this Court. MCD has also
moved in distraint and issued distress warrants. One of these was
sought to be challenged by MEPIDL before the Delhi High Court.
No stay was granted. MEPIDL says it has withdrawn that challenge
petition to the distress warrant, a statement that MCD disputes.
13. This brings us now to the frame of the MEPIDL Petition
because what MCD did was to move against MEPIDL’s assets
within the jurisdiction of this Court. It did so by requesting, in the
manner that we will shortly describe, the local authorities to issue
notices of attachment of MEPIDL’s assets within this Court’s
jurisdiction. The request was for attachment of both movable and
immovable properties. The movable properties seem to be bank
accounts with one or the other of the Respondent banks. At least
one of these banks has been unusually friendly to MEPIDL: rather
than acting on the Tehsildar’s notice demanding a freezing of the
accounts, it invited MEPIDL to explain why that action should not
be taken.
14. The argument by MEPIDL represented by Mr Dhond relates
principally to the two notices at Exhibits “A1” and “A2” to the
MEPIDL Petition. From the prayers that we have set out above, it is
clear that the relief is also sought in respect of the warrants of
distress. Mr Dhond clarifies that only one warrant of distress was
challenged before the Delhi High Court. Mr Joshi says that the
others have never been challenged elsewhere. In any case, Mr
Dhond also says that the challenge to the warrants of distress is to
MEP Infrastructure Developers Ltd & Anr v South Delhi Municipal Corporation & Ors
the extent that they seek to move against properties, both movable
and immovable, within the jurisdiction of this Court. He also states
that the challenge to a solitary warrant of distress filed before the
Delhi High Court has been withdrawn. This is disputed.
15. We decline to enter into that controversy. For the reasons that
follow, we decline to embark on an adjudication of the warrants of
16. Exhibits “A1” and “A2” are at pages 56 and 59 of the
MEPIDL Petition. Exhibit “A1” is dated 28th October 2021. This is
a communication from the Tahsildar and the Executive Magistrate
Kalyan to the Manager of the State Bank of India and the Manager
of the Dombivli Nagari Sahakari Bank Ltd to freeze two accounts
noted in that letter. Exhibit “A2” is of 16th November 2021. It notes
that there is a Revenue Recovery Certificate and says that if the
demand is not paid, the amount of the Revenue Recovery Certificate
will be recovered as arrears of land revenue under the Maharashtra
17. Mr Dhond maintains that the Writ Petition squarely lies
within the jurisdiction of this Court. He invites attention to Article
226 (2) of the Constitution of India. We reproduce Article 226 of
“226. Power of High Courts to issue certain writs.—
(1) Notwithstanding anything in Article 32 every High
Court shall have powers, throughout the territories in
relation to which it exercise jurisdiction, to issue to any
person or authority, including in appropriate cases, any
MEP Infrastructure Developers Ltd & Anr v South Delhi Municipal Corporation & Ors
Government, within those territories directions, orders or
writs, including writs in the nature of habeas corpus,
mandamus, prohibitions, quo warranto and certiorari, or
any of them, for the enforcement of any of the rights
conferred by Part III and for any other purpose.
(2) The power conferred by clause (1) to issue
directions, orders or writs to any Government, authority
or person may also be exercised by any High Court
exercising jurisdiction in relation to the territories
within which the cause of action, wholly or in part,
arises for the exercise of such power, notwithstanding
that the seat of such Government or authority or the
residence of such person is not within those territories.
(3) Where any party against whom an interim order,
whether by way of injunction or stay or in any other
manner, is made on, or in any proceedings relating to, a
petition under clause (1), without—
(a) furnishing to such party copies of such
petition and all documents in support of the plea for
such interim order; and
(b) giving such party an opportunity of being
makes an application to the High Court for the
vacation of such order and furnishes a copy of such
application to the party in whose favour such order has been
made or the counsel of such party, the High Court shall
dispose of the application within a period of two weeks from
the date on which it is received or from the date on which
the copy of such application is so furnished, whichever is
later, or where the High Court is closed on the last day of
that period, before the expiry of the next day afterwards on
which the High Court is open; and if the application is not
so disposed of, the interim order shall, on the expiry of that
period, or, as the case may be, the expiry of the aid next day,
MEP Infrastructure Developers Ltd & Anr v South Delhi Municipal Corporation & Ors
(4) The power conferred on a High Court by this article
shall not be in derogation of the power conferred on the
Supreme Court by clause (2) of article 32.”
(Emphasis added)
18. It is true that the Respondent Tehsildar is within the
jurisdiction of this Court and that the properties in question, both
movable and immovable, are also within the jurisdiction of this
Court. According to Mr Dhond, since the action is brought against
those properties, it can safely be said that the cause of action, or at
least a part of it, arises within the jurisdiction of the Court. It makes
no difference that the demand on which the impugned action is
based originates from outside the jurisdiction of this Court.
19. Mr Joshi for his part says that this is a misreading of Article
226(2). The entirety of Article 226 confers an equitable and a
discretionary power on the High Court to issue a high prerogative
writ remedy. Sub-article (2) was introduced by the 15th amendment
as Article 226(1-A) and then, by the 42nd Amendment, in its
present form. It allows High Courts to exercise their discretionary
jurisdiction even when the originating authority is beyond that High
Court’s jurisdiction. But this does not mean that in every case, a
High Court must exercise its jurisdiction, i.e., that the equitable
discretion is taken away. Article 226(2) is an expansion of a High
Court’s writ jurisdiction, not a fetter on it. Surely equitable
considerations must be a factor. It is his submission that there is
really no jurisdictional remit of this Court to be exercised under
Article 226(2). The act of the Tahsildar in issuing the impugned
MEP Infrastructure Developers Ltd & Anr v South Delhi Municipal Corporation & Ors
notices are purely ministerial acts, giving effect to a Revenue
Recovery Certificate and to the warrants of distress. Those warrants
were all issued in Delhi under a Delhi statute. No part of the cause
of action relatable to the warrants of distress arises within the
jurisdiction of this Court; and, therefore, there is no call for
interference with the impugned notices.
20. Mr Joshi is at some pains to submit that we should not enter
into the merits of the case, i.e., the actual dispute as MCD’s claim
and MEPIDL’s liability. We agree it is not for us to decide whether
that debt is or is not due and whether the claim of the MCD is or is
not justified. There is no dispute that there are warrants of distress
and that these have been issued from Delhi.
21. Jurisdictionally, the warrants of distress and the impugned
notices are distinct. The impugned notices are based on the
warrants of distress. The notices originate in this Court’s
jurisdiction. The warrants of distress do not. The fact that the
warrants of distress resulted in the impugned notices does not, in
and of itself mean that we should exercise our discretion in regard to
those distress warrants.
22. Mr Dhond would next have it that unless it is shown that the
claim of the MCD is revenue, no revenue authority can purport to
exercise powers for recovery of the amount claimed as “arrears of
land revenue”. It is his case that this is a money claim, pure and
simple. At best it is a tax. It is in no sense, he submits, recoverable as
arrears of land revenue.
MEP Infrastructure Developers Ltd & Anr v South Delhi Municipal Corporation & Ors
23. To understand the controversy, we must consider certain
provisions of the applicable statute. There is, first, the DMC Act.
There are also the Delhi Municipal Corporation (Toll Tax) Bye-
Laws 2007 (“the Toll Tax Bye-Laws”). The DMC Act has a
separate chapter on taxation, Chapter VIII. Section 113 sets out the
taxes to be imposed by the Corporation under the Act. The list
includes a tax on vehicles under sub-section (1). Under sub-section
2(g) of section 113, tolls are specifically enumerated as one species
of tax. Then sub-section (3) says that the taxes specified in sub-
sections (1) and (2) are to be assessed and collected in accordance
with the provisions of this Act and the Bye-Laws made thereunder.
24. We turn to Sections 156, 157 and 158 of the DMC Act:
“156. Recovery of tax—
(1) If the person liable for the payment of the tax
does not, within thirty days from the service of the
notice of demand, pay the amount due, such sum
together with all costs and the penalty provided for in
section 155, may be recovered under a warrant, issued in
the form set forth in the Eighth Schedule, by distress
and sale of the movable property or the attachment and
sale of the immovable property, of the defaulter:
Provided that the Commissioner shall not recover
any sum the liability for which has been remitted on appeal
under the provisions of this Act.
(2) Every warrant issued under this section shall be
signed by the Commissioner.
(1) It shall be lawful for any officer or other
employees of the Corporation to whom a warrant issued
MEP Infrastructure Developers Ltd & Anr v South Delhi Municipal Corporation & Ors
under section 156 is addressed to distrain, wherever it
may be found in any place in Delhi, any movable
property or any standing timber, growing crops or grass
belonging to the person therein named as defaulter, subject
to the following conditions, exceptions and exemptions,
(a) the following property shall not be distrained:
(i) the necessary wearing apparel and
bedding of the defaulter, his wife and
children and their cooking and eating
(ii) tools of artisans;
(iv) when the defaulter is an agriculturist
his implements of husbandry, seed,
necessary to enable the defaulter to
earn his livelihood;
(b) the distress shall not be excessive, that is to
say, the property distrained shall be as nearly as
possible equal in value to the amount recoverable
under the warrant, and if any property has been
distrained which, in the opinion of the
Commissioner, should not have been distrained, it
shall forthwith be released.
(2) The person charged with execution of a warrant of
distress shall forthwith make an inventory of the property
which he seizes under such warrant, and shall, at the same
time, give a written notice in the form set forth in the Ninth
Schedule, to the person in possession thereof at the time of
seizure that the said property will be sold as therein
mentioned.
MEP Infrastructure Developers Ltd & Anr v South Delhi Municipal Corporation & Ors
158. Disposal of distrained property and attachment
and sale of immovable property—
(1) When the property seized is subject to speedy and
natural decay or when the expense of keeping it in custody
is, when added to the amount to the recovered, likely to
exceed its value, the Commissioner shall give notice to the
person in whose possession the property was at the time of
seizure that it will be sold at once, and shall sell it
accordingly by public auction unless the amount mentioned
in the warrant is forthwith paid.
(2) If the warrant is not in the meantime suspended by
the Commissioner, or discharged, the property seized shall,
after the expiry of the period named in the notice served
under sub-section (2) of section 157, be sold by public
auction by order of the Commissioner.
(3) When a warrant is issued for the attachment and
sale of immovable property, the attachment shall be
made by an order prohibiting the defaulter from
transferring or charging the property in any way, and all
persons from taking any benefit from such transfer or
charge, and declaring that such property would be sold
unless the amount of tax due with all costs of recovery is
paid into the municipal office within fifteen days from
the date of the attachment.
(4) Such order shall be proclaimed at some place on
or adjacent to such property by beat of drum or other
customary mode and a copy of the order shall be affixed
on a conspicuous part of the property and upon a
conspicuous part of the municipal office and also, when
the property is land paying revenue to the Government,
in the office of the collector.
(5) Any transfer of or charge on the property attached or
any interest therein made without written permission of the
Commissioner shall be void as against all claims of the
MEP Infrastructure Developers Ltd & Anr v South Delhi Municipal Corporation & Ors
Corporation enforceable under the attachment.
(6) The surplus of the sale-proceeds, if any shall,
immediately after the sale of the property, be credited to the
Municipal Fund, and notice of such credit shall be given at
the same time to the person whose property has been sold
or his legal representative and if the same is claimed by
written application to the Commissioner within one year
from the date of the notice, a refund thereof shall be made
to such person or representative.
(7) Any surplus not claimed within one year as aforesaid
shall be the property of the Corporation.
(8) For every distraint and attachment made in
accordance with the foregoing provisions, a fee of such
amount not exceeding two and-a-half per cent. of the
amount of the tax due as shall in each case be fixed by the
Commissioner, shall be charged, and the said fee shall be
included in the costs of recovery.”
25. Section 156(1) mentions recovery under a warrant issued in a
form set out in the Eighth Schedule by distress and sale of
immovable property or the attachment and sale of the immovable
property of the defaulter. Section 157(1) is a provision on which Mr
Dhond lays much emphasis. This speaks of a distraint. According to
Mr Dhond, therefore, Section 157(1) controls and limits Section
156(1): a distress warrant must be confined to property of the
descriptions set out in that sub-section and which is located in Delhi.
Then Section 158 deals with the disposal of property that is already
distrained and also deals with the attachment and sale of immovable
MEP Infrastructure Developers Ltd & Anr v South Delhi Municipal Corporation & Ors
26. Mr Dhond’s submission does not commend itself to us.
Section 157 is an empowering provision. It only says that it is lawful
for an MCD employee who is in receipt of a warrant to distrain any
movable property or any standing timber growing crops or grass
subject to certain conditions exceptions and exemptions. It is not
possible we think, to read Section 157 as constraining the ambit,
amplitude and operation of Section 156 which does not contain any
such geographical limitation. Importantly, the Eighth Schedule
referred to in Section 156 also does not provide for any such
geographical restriction or limitation.
27. Even otherwise, the submission cannot be accepted. For, if
what Mr Dhond says is correct then the result is, inevitably, absurd
and untenable. It means, one, that the MCD can never engage a
contractor from outside Delhi or who has no property in Delhi,
because then the MCD has no means of recovery. Two, that if the
MCD does engage a contractor from outside Delhi, i.e., one who has
no property in Delhi, then the MCD simply cannot proceed against
that property in recovery. Three, that a contractor from outside
Delhi who has no property in Delhi is more or less immunized from
any recovery. Four, the DMC has no viable recourse against such a
contractor. Five, that any attempt to recover against any property
outside Delhi is unlawful.
28. Therefore, the submission also involves injecting a non-
existing word into Section 157(1): it means reading that section as:
“It shall ONLY be lawful for any officer or other employees
of the Corporation to whom a warrant issued under section
MEP Infrastructure Developers Ltd & Anr v South Delhi Municipal Corporation & Ors
29. From any perspective, this is not a tenable manner to read the
statute. The phrase “shall be lawful” has two purposes. First, it is
clarificatory: it tells us what is permissible. Second, it introduces
important safeguards for the debtor in Section 157(1)(a)(i) to (iv)
and Section 157(1)(b). The domestic distraint, within Delhi, is
limited to movable property and standing crops, etc., and even this
“subject to the following conditions, exceptions and
exemptions, namely …”
And then follow the various provisions of sub-section (a)(i) to (a)(iv)
30. Section 157(1) does not, therefore, control or limit Section 156
at all.
31. The Toll Tax Bye-Laws are framed under the DMC Act. Bye-
Law 2(1)(c) defines Toll Tax to be the tax imposed on commercial
vehicles entering Delhi. Bye-Law 3 says the vehicles that are liable to
pay toll tax and the tax rates. Bye-Law 6 sets out the method of
collection of Toll Tax. Then there are provisions for penalty, closing
transactions at the end of the day and crediting daily proceeds of the
Toll Tax and so on.
32. Next, we come to Section 455 of the DMC Act:
“455. Mode of recovery of certain dues— In any case
not expressly provided for in this Act or any bye-law
made thereunder any due to the Corporation on account
of any charge, costs, expenses, fees, rates or rent or on
any other account under this Act or any such bye-law
MEP Infrastructure Developers Ltd & Anr v South Delhi Municipal Corporation & Ors
may be recoverable from any person from whom such
sum is due as an arrear of tax under this Act:
Provided that no proceedings for the recovery of any
sum under this section shall be commenced after the expiry
of three years from the date on which such sum becomes
due.”
33. Clearly, Section 455 must be read with Section 156 and the
Eighth Schedule. Therefore, it follows that an ‘arrear of tax’ can be
recovered in the manner set out in Section 156—
“by distress and sale of the movable property or the
attachment and sale of the immovable property…”
There is no geographical limitation in Section 455 or Section 156.
34. Our attention is then invited to the provisions of the Revenue
Recovery Act 1890. Section 3(1) says that where there are arrears of
land revenue or a sum returnable as arrears of land revenue and the
amount is held by the defaulter against property in a district other
than that in which the arrears accrued or the sum is payable, the
Collector may send to the other collector of the other district, a
certificate stating the name of the defaulter and other particulars
and the amount that is payable. This, in other words, is the revenue
recovery certificate that led to the impugned notices. Section 3(3)
says that receiving Collector shall (the word is not “may”)), on
receiving the certificate, proceed to recover the amounts stated
therein as if it were an arrears of land revenue which had accrued in
his own District.
MEP Infrastructure Developers Ltd & Anr v South Delhi Municipal Corporation & Ors
35. What this tells is that if an amount is recoverable as arrears of
land revenue in one district, that recovery may be effected in
another district by the issuance of a revenue recovery certificate. Mr
Dhond argues that the toll tax claimed by the MCD is not an arrear
of land revenue at all. It is, simply, a tax and it is recoverable as an
arrear of tax under the Act. So says Section 455, he submits, and
there is no way in which arrears of tax can be read to be arrears of
land revenue. But this argument divorces Section 455 from Section
156 and the Eighth Schedule entirely; and that, as we have noticed,
is untenable.
36. Indeed, it is Mr Dhond’s submission that the MCD claim is
not even a tax but it is simply a contractual debt alleged to be
payable under a signed contract. What the MCD has therefore tried
to do, Mr Dhond submits, is to elevate a contractual debt first to the
level of a tax and then to the level of land revenue. Neither of these
subsequent stages, he submits, is permissible in law.
37. We do not think it is possible to accept this submission. We
do not need to examine the contract or its termination or interpret
the contractual provisions. MEPIDL was collecting and remitting
toll. The question, therefore, is not whether MEPIDL was doing so
under contract but what is it that it was collecting and remitting
because it is this amount that is sought to be recovered. Toll is
undoubtedly a tax. It is so defined. The statute so says. Even the
Bye-laws make this abundantly clear. This completely answers the
first aspect of the matter; and there is no question of limiting the
recovery to a contractual debt. The second limb of the argument,
MEP Infrastructure Developers Ltd & Anr v South Delhi Municipal Corporation & Ors
that it is only a tax and not land revenue and cannot be recovered as
land revenue, to our mind unacceptably isolates Section 455 from
Section 156 and the corresponding Eighth Schedule. Section 455 has
two operative words. First, it speaks of a mode. Then it speaks of
“certain dues”. Section 455 is a sort of residuary provision. It applies
in any case not otherwise provided in the DMC Act or any Bye-law.
The ambit of Section 455 is to cover any charge, cost, expenses,
fees, rates, rent or any other account. Thus, even this goes against
Mr Dhond because any claim would, under Section 455, be “a
certain due” — including what Mr Dhond says is a mere contractual
claim. This too can be recovered as an arrear of tax. That takes us
directly to Section 156. Now that Section makes it abundantly clear
that the tax due can be recovered under an Eighth Schedule warrant
by distress and sale of movable property or the attachment and sale
of immovable property of the defaulter. There is no geographical
restriction in Section 156 limiting the action to assets in Delhi.
38. This takes us to Mr Dhond’s submission that the Tehsildar
was required to “satisfy himself” before issuing either of the
impugned notices. We have understood this to mean that the
Tehsildar ought to have embarked on some sort of quasi-judicial
enquiry, perhaps even going into the question of statutory
interpretation and reconciling these provisions. We do not believe
this is correct at all. One reason is the Revenue Recovery Act. Once
the Tehsildar or the Collector has received the Revenue Recovery
Certificate, he necessarily had to act on it. Section 3(3) of the
Revenue Recovery Act is unambiguous in that regard. There is no
question of discretion in the hands of the Tehsildar.
MEP Infrastructure Developers Ltd & Anr v South Delhi Municipal Corporation & Ors
39. Mr Joshi submits that toll is nothing but a form of land
revenue. It is a tax for the use of land, i.e., for the use of a road by a
vehicle. Land revenue is not defined in the Revenue Recovery Act.
We do not think it is necessary to pronounce finally on this aspect of
the matter in light of the view that we have taken that the action of
the officer is correct in accordance with law.
40. There is a final reason not to accept Mr Dhond’s submission.
Cutting through all this jurisprudential argumentation, one thing
appears to us to be perfectly plain. Now that it has failed to get any
protection from the Delhi High Court, MEPIDL has set about
trying to stymie all recovery proceedings by assailing a ministerial
order and thus reducing even the proceedings in the Delhi High
Court to an idle formality. We are having none of it. At the very
least, the comity of Courts requires us to defer to the Delhi High
Court in this regard. It is not shown to us unequivocally that the
Tehsildar has acted illegally, unlawfully or in any manner that
warrants the exercise of our discretion in issuing a high prerogative
remedy. Merely because it is uncomfortable for MEPIDL is not a
ground to interfere. If this is a purely contractual dispute, as Mr
Dhond himself suggests it is, then MEPIDL’s remedies lie
elsewhere and not in our Writ Court.
41. Reliance is sought to be placed on the decision of a learned
Single Judge, Badar Durrez Ahmad J as he then was, of the Delhi
High Court in Callipers Naigai Ltd & Ors v Government of NCT of
Delhi & Ors1 on the question of territoriality and jurisdiction. While
MEP Infrastructure Developers Ltd & Anr v South Delhi Municipal Corporation & Ors
we agree with the decision and judgment of the learned Single
Judge, we believe that the present case stands on a slightly different
footing. The point here is not whether this Court has jurisdiction,
especially territorial jurisdiction under Article 226(2) of the
Constitution of India, but whether that jurisdiction is required to be
exercised on the facts and in the circumstances of this case. As we
have noted, almost everything in this case militates against the
exercise of jurisdiction in favour of MEPIDL.
42. Mr Joshi relies on the recent three-Judge bench decision of
the Supreme Court in Jalkal Vibhag Nagar Nigam & Ors v
Pradeshiya Industrial and Investment Corporation.2This discussed
inter alia the nature of levy under Section 52 of the UP Water
Supply and Sewerage Act, 1975. There was a dispute as to whether
the levy was a tax on land and buildings. The Supreme Court inter
alia observed that there has been a gradual obliteration of the
distinction between a tax and a fee at a conceptual level. It approved
the earlier authorities that there is no generic difference between a
tax and a fee, and held that the practical and constitutional
distinction between the two has eroded. A fee may also be a
compulsory exaction. It may also carry an element of compulsion.
The point that Mr Joshi makes is that it is not the label that one
attaches to it but it is the nature of the levy that is of relevance.
Jalkal Vibhag was distinguished in Kerala State Beverages
Manufacturing & Marketing Corporation Ltd v Assistant Commissioner
of Income Tax.3 The Revenue seems to have argued in Kerala State
Beverages that, following Jalkal Vibhag, there is no distinction at all,
MEP Infrastructure Developers Ltd & Anr v South Delhi Municipal Corporation & Ors
ever, between a fee and a tax. This argument was repelled. The
Supreme Court in Kerala State Beverages held that it is a settled
principle of interpretation that where the same statute uses different
terms and expressions, the legislature is referring to different things.
It also held that Jalkal Vibhag maintains and does not take away the
basic constitutional distinction between a ‘fee’ and a ‘tax’. Mr
Joshi’s point is that the statute defines toll as a tax. Merely because
it is collected under a contract will not change the nature of the levy,
or make it something other than a tax. MEPIDL was, plain and
simple, MCD’s tax collector. The amount in MEPIDL’s hands was
tax — by statute. It remained a tax, and this tax had to be remitted
to the MCD. It could not become ‘consideration’ or ‘damages’ or a
contractual debt of any other kind. This was always tax due to the
MCD. It was due from the drivers/owners of commercial vehicles
entering Delhi, and it was payable to the MCD. MEPIDL was only
‘harvesting’ the tax collections. It was a tax, and remains a tax, says
Mr Joshi; and Section 455 and 156 of the DMC Act show how this
can be recovered — i.e., against movable and immovable property
even outside Delhi. We believe this submission is perfectly correctly
43. We see no reason, finally, to exercise our discretion at all in
regard to the several distress warrants that had been issued. It is
undoubtedly plain that MEPIDL had in fact challenged one such
distress warrant in Delhi. There may be a controversy about
whether it is withdrawn or not withdrawn but we do not see how
MEPIDL can literally take its chances in one High Court and then
try again in another High Court in this manner. The entire
trajectory of this is to be deprecated. When a principle challenge
MEP Infrastructure Developers Ltd & Anr v South Delhi Municipal Corporation & Ors
against the termination fails and while an appeal is pending, one
distress warrant is challenged in Delhi only to be allegedly later
withdrawn and other distress warrants are now brought before this
44. These are reasons for us to refuse to exercise our Article 226
discretion which is after all undoubtedly equitable. Granting relief to
MEPIDL would, we believe, be entirely inequitable in the facts and
circumstances of the case.
45. To put it a little colloquially and to put a lid on it, we made it
clear to Mr Dhond that in any such matter involving a matter of
commerce or even high commerce, it is now our almost invariable
practice to first ask that the amount be deposited. Mr Dhond is clear
that he is unable to do anything of the kind. If that be so, then to his
request that we grant him a writ, we must answer in the same coin,
that we too are unable to do anything of the kind.
46. The MEPIDL Petition is dismissed.
47. As to the MCD Petition, the challenge here is to a notice
issued by the Kalyan Janata Sahakari Bank on 4th January 2022 to
MEPIDL asking it to show cause why the account should not be
frozen. The action of the Bank is indefensible. The bank has no
authority in law to invite suggestions and objections from a defaulter
against whom there is a Revenue Recovery Certificate. Once the
Tahsildar has issued a notice to freeze the account, the bank must
MEP Infrastructure Developers Ltd & Anr v South Delhi Municipal Corporation & Ors
comply, and it is then for the defaulter to apply to a Court or an
authority to have that account released from freezing.
48. Accordingly, in the MCD Petition we issue Rule, make it
returnable forthwith and make Rule absolute in terms of prayer
clauses (a) and (b). Prayer (c) is of course not seriously pressed by
49. The Petitions are disposed of in these terms. Mr Joshi presses
for costs. We believe that he has quite enough to recover. There will
be no order as to costs.
50. The Interim Applications are infructuous and are disposed of
51. Mr Dhond seeks an extension of an earlier protection. To
grant that would be to undermine everything we have just said. The
application is refused. | Observing that vehicular toll is a tax and not merely contractual debt between the collection company and the civic body, the Bombay High Court dismissed plea by Mumbai based MEP Infrastructure Developers Ltd. (MEPIDL) challenging recovery proceedings for its failure to pay toll collected by it to the Municipal Corporation of Delhi (MCD).
“MEPIDL was collecting and remitting toll. The question, therefore, is not whether MEPIDL was doing so under contract but what is it that it was collecting and remitting because it is this amount that is sought to be recovered. Toll is undoubtedly a tax. It is so defined. The statute so says. Even the Bye-laws make this abundantly clear. This completely answers the first aspect of the matter; and there is no question of limiting the recovery to a contractual debt”, the court held.
A division bench of Justices G. S. Patel and S.G. Dige further held that once Tehsildar has directed a bank to freeze the accounts of a defaulter against whom recovery certificate is issued, the bank has no power to invite objections from the defaulter.
“The bank has no authority in law to invite suggestions and objections from a defaulter against whom there is a Revenue Recovery Certificate. Once the Tahsildar has issued a notice to freeze the account, the bank must comply, and it is then for the defaulter to apply to a Court or an authority to have that account released from freezing”, the court held.
MCD contracted out the task of toll tax collection to MEPIDL. Claiming that MEPIDL did not make the required remittances and a large amount is due, MCD terminated the contract. Delhi HC dismissed MEPIDL’s challenge to the termination.
The MCD claimed that as of April 10, 2021, MEPIDL owed about 4000 crores which has since increased. It issued distress warrants to recover the amount. MEPIDL challenged one distress warrant before Delhi HC but no stay was granted.
MEPIDL has no assets in Delhi. Hence, MCD requested the local authorities to issue notice of attachment of MEPIDL’s movable and immovable assets within the jurisdiction of the Bombay HC. The Kalyan Janata Sahakari Bank Ltd., instead of implementing Tehsildar’s notice to freeze MEPIDL’s account, issued it a show-cause notice.
In rival writ petitions, MEPIDL challenged the distress warrants and attachment notices while MCD challenged the action of the Bank. The court granted MCD’s prayers.
The court found the action of the bank “indefensible” and directed the bank to recall the show-cause notice. Court also restrained the bank from issuing any communication to MEPIDL that may cause it to remove its money from the account.
Senior Advocate Venkatesh Dhond with Advocate Rashmin Khandekar for MEPIDL contended that MCD’s claim is not a tax but simply a contractual debt payable under the contract. Further, the distress warrant must be confined to property which is located in Delhi.
The court said that toll is a tax as defined by the Delhi Municipal Corporation Act, 1957 (DMC Act) and Toll Tax Bye-Laws. Hence, there is no question of limiting the recovery to a contractual debt, the court held.
Section 156(1) of the DMC Act provides the mode for recovery of tax in case of default via distress and sale of movable property or attachment and sale of immovable property of the defaulter.
Section 157(1) provides that MCD may distrain any property of the defaulter described in this section in any place in Delhi subject to certain exceptions.
The court said that section 157 is an empowering provision. It does not constrain section 156 which does not have any such geographical limitation.
The court said that if MEPIDL’s submission is accepted, then it would mean that MCD can never engage a contractor who has no property in Delhi and if it does engage such a contractor, the contractor would be immune to recovery. The court termed this interpretation of Section 156 “absurd and untenable”.
Section 455 of the DMC Act provides for recovery of “certain dues” as arrears of tax. The court said that it must be read with section 156. An arrear of tax can be recovered in the manner given in section 156 and there is no geographical limitation in section 455 either, the court concluded.
The court noted that section 455 is a residuary provision applicable in any case not otherwise covered in the Act or Bye Laws. Thus, even if the claim were merely a contractual claim as contended by MEPIDL, it would still come under section 455 as a “certain due”, the court held.
The court said that once the Tehsildar has received the Revenue Recovery Certificate, there is no need to satisfy himself and he must act on it. Section 3(3) of the Revenue Recovery Act does not provide for discretion of the Tehsildar, the court said.
Hence, the court held that Tehsildar has not acted illegally. Merely because it is uncomfortable for MEPIDL is not a ground to interfere. Further, if this is a purely contractual dispute as claimed by MEPIDL, the remedy doesn’t lie in writ court, the court stated.
The court said that MEPIDL is trying to stymie the recovery proceedings after failing to get any relief from Delhi HC. “The entire trajectory of this is to be deprecated. When a principle challenge against the termination fails and while an appeal is pending, one distress warrant is challenged in Delhi only to be allegedly later withdrawn and other distress warrants are now brought before this Court”, the court observed.
Case no. – Writ Petition No. 10304 and 8677 of 2022
Case Title – MEP Infrastructure Developers Ltd. v. South Delhi Municipal Corporation with Connected matter |
The petitioners were appointed on various posts with the
respondent Bank No.3-Central Co-Operative Bank Ltd. During the
tenure of their services, the respondent Bank passed a resolution
dated 25.05.2010, whereby, the superannuation age of the
employees was reduced from 60 years to 58 years. The said
resolution was challenged in S.B. Civil Writ Petition No.
5332/2010, which was decided on 05.07.2011 and the
respondent Bank was directed to reconsider the age of retirement
and also to continue with the services of the employees. In
pursuance to the directions of this Court, the respondent Bank
reconsidered the issue but again took a resolution to fix the age of
superannuation at 58 years. As a consequence, the petitioners
stood retired.
The resolution dated 18.07.2011 was again challenged and
vide interim order dated 06.09.2011, the effect and operation of
the resolution was stayed. In consequence thereof, the petitioners
were allowed to resume their duties.
During the pendency of the writ petitions, the Bank again
took a resolution to increase the age of superannuation from 58
years to 60 years. The statement to that effect was made before
the Court on behalf of the respondent Bank and in view of the
submission made, the petitions of the petitioners were dismissed
as having become infructuous.
Meanwhile, the petitioners after completing the age of 60
years, superannuated.
The grievance in the present writ petition of the petitioners is
that they were not paid the salary of the period during which they
remained out of service because of the resolutions being passed
by the Bank.
The period during which the petitioners remained out of
Kailash Chandra 10980/2017 21.07.2011 to
Jagdish Prasad Sharma 10810/2017 01.02.2011 to
Bhagwati Lal 10926/2017 21.07.2011 to
Jaidev Devpura 10928/2017 21.07.2011 to
Bhagchand Jain 12158/2017 21.07.2011 to
Learned counsel for the petitioners has averred that it was
only on the basis of the submission made by the Bank that the
earlier writ petition was rendered as infructuous as the Bank had
promised the consequential benefits also in pursuance to the
Learned counsel for the petitioner has relied upon the
judgment passed in Civil Appeal No. 5527/2012 ; State of
Uttar Pradesh v. Dayanand Chakrawarty & Ors. He has
submitted that the employees had remained out of service only
because of the wrong decision taken by the Bank and not because
of any fault on their part.
Learned counsel has stated that even while passing the
interim order dated 06.09.2011 in the earlier writ petition (S.B.
Civil Writ Petition No. 7263/2011), the issue pertaining to the
arrears was kept pending by the Court for decision at the time of
final hearing. But because of the petition being dismissed as
infructuous, the same could not be decided at that stage.
Learned counsel further submitted that two employees
namely Kailash Chandra Shotriya and Harish Chandra Joshi have
been paid the arrears of salary of the disputed period by the Bank
and the present petitioners have been denied the same without
any plausible reason.
Learned counsel for the respondent Bank has submitted that
as the petitioners had not worked during the period as alleged,
they were not entitled to the salary for that period on the principle
of ‘no pay no work’.
Learned counsel did not dispute the fact of the other two
employees as named by the petitioners being paid the salary but
submitted that the same was on medical grounds.
Heard learned counsel for the parties and have perused the
material available on record.
It is clear on record that the respondent Bank had passed
the resolutions dated 25.05.2010 & 18.07.2011 without any logic
or reason, which were interfered in by this Court and ultimately
the resolution dated 16.12.2013 was passed by the Bank in the
interest of the Bank only. The said resolution dated 16.12.2013
was passed with the clear understanding that the benefits of that
decision are to be granted to even those employees who had
retired by that time.
The relevant portion of the resolution dated 16.12.2013
“ckn fopkj foe”kZ loZ lEefr ls cSad deZpkfj;ksa@
vf/kdkfj;ksa dh lsok fuo`fRr dh vf/kokf’kZd vk;q 58 o"kZ ds
LFkku ij iqu% 60 o’kZ fd;s tkus dk fu.kZ; fy;k tkrk gSA
lkFk gh tks deZpkjh@vf/kdkjh mPp U;k;ky; ds LVs izkIr
dj lsok fuo`Rr gks pqds gS mUgsa Hkh 58 ds LFkku ij 60 o’kZ
ds fglkc ls lsok fuo`fRr ifjykHk fn;s tkus dk fu.kZ; fy;k
tkrk gSA bl lUnHkZ esa ekuuh; jktLFkku mPp U;k;ky;
tks/kiqj esa deZpkfj;ksa@vf/kdkfj;ksa dh lsok fuo`Rr ds
lEcfU/kr tks izdj.k yfEcr gSa mDr fu.kZ;kuqlkj lekIr fd;s
tkus ds fy, fu;ekuqlkj fof/kd dk;Zokgh djus dk Hkh
fu.kZ; fy;k x;k] la;qDr jftLVªkj ¼cSafdx½ ds mDr i=
fnukad 10-10-2013 ds Øe esa ekuuh; U;k;ky; }kjk izdj.k
esa fn;s x;s LFkxu vkns”k dks fuLrkfjr djok;k tkosa ,oa Mh-
ih-lh- dh dk;Zokgh dh tkosa] bl dk;Zokgh gsrq cSad ds v/;{k
,oa izcU/k funs”kd dks vf/kd`r fd;k tkrk gSA”
The Hon’ble Apex Court in the case of Dayanand
Chakrawarty (supra), while relying upon earlier judgments passed
in Harwindra Kumar reported in 2005(13) SCC 300, Radhey
Shyam Gautam reported in 2007(11) SCC 507 and Jaswant
Singh reported in 2006(11) SCC 464 observed as under:]
“We observe that the principle of ‘no pay no
work’ is not applicable to the employees who were
guided by specific rules like Leave Rules etc. relating
to absence from duty. Such principle can be applied to
only those employees who were not guided by any
specific rule relating to absence from duty. If an
employee is prevented by the employer from
performing his duties, the employee cannot be blamed
for having not worked, and the principle of ‘no
pay no work’ shall not be applicable to such employee.
38. In these cases as we have already held that
Regulation 31 shall be applicable and the age of
superannuation of employees of the Nigam shall be 60
years; we are of the view that following consequential
and pecuniary benefits should be allowed to different
sets of employees who were ordered to retire at the
(a) The employees including respondents
who moved before a court of law irrespective of
fact whether interim order was passed in their
favour or not, shall be entitled for full salary up to
the age of 60 years. The arrears of salary shall be
paid to them after adjusting the amount if any
paid.”
In view of the ratio as laid down by the Hon’ble Apex Court
in Dayanand Chakrawarty’s case (supra), it is held that the
present petitioners would be entitled for the salary for the period
during which they remained out of service. The same shall be paid
to them within a period of three months from the date of receipt
of the copy of this order. If the same is not paid within the said
period, it would then be payable along with an interest at the rate
of 6% per annum.
With these observations, the present writ petitions are | The Rajasthan High Court has recently observed that the employees of Central Co-Operative Bank, who remained out of service due to the latter's 'illogical' decision reducing the age of superannuation, are entitled to the salary for the said period.The Bank had passed a resolution, reducing the superannuation age from 60 to 58 years. Justice Rekha Borana, observed, "Petitioners would...
The Rajasthan High Court has recently observed that the employees of Central Co-Operative Bank, who remained out of service due to the latter's 'illogical' decision reducing the age of superannuation, are entitled to the salary for the said period.
The Bank had passed a resolution, reducing the superannuation age from 60 to 58 years.
Justice Rekha Borana, observed,
"Petitioners would be entitled to the salary for the period during which they remained out of service. The same shall be paid to them within a period of three months from the date of receipt of the copy of this order".
While allowing the petition, the court ruled that if the salary is not paid within the said period, it would then be payable along with an interest at the rate of 6% per annum.
Reliance was placed on the Supreme Court's decision in State of Uttar Pradesh v. Dayanand Chakrawarty & Ors., where it was held that if an employee is prevented by the employer from performing his duties, the employee cannot be blamed for having not worked, and the principle of 'no pay no work' shall not be applicable to such employee.
Background
In the instant case, the respondent Bank passed a resolution dated 25.05.2010, whereby, the superannuation age of the employees was reduced from 60 years to 58 years. However, following filing of a writ petition, the Bank was directed to reconsider its decision.
Subsequently, another resolution was passed on 18.07.2011, reiterating the earlier decision of fixing the age of superannuation at 58 years. The same was again challenged and a statement came to be made before the Court that the age of superannuation will be increase from 58 years to 60 years. Accordingly, the petitions were dismissed as having become infructuous.
Later, the petitioners were denied salary of the period during which they remained out of service because of the resolutions being passed by the Bank.
The counsel for the petitioners averred that it was only on the basis of the submission made by the Bank that the earlier writ petition was rendered as infructuous, as the Bank had promised the consequential benefits also in pursuance to the resolution. He further argued that two employees namely Kailash Chandra Shotriya and Harish Chandra Joshi have been paid the arrears of salary of the disputed period by the Bank and the present petitioners have been denied the same without any plausible reason.
The counsel for the respondent-Bank submitted that the petitioners had not worked during the period, as alleged, so they were not entitled to the salary on the principle of 'no pay no work'. However, he did not dispute the fact of the other two employees as named by the petitioners being paid the salary but submitted that the same was on medical grounds.
Findings
The court observed that respondent Bank had passed the resolutions dated 25.05.2010 & 18.07.2011 without any logic or reason, which were later interfered by the Court. The court added that the Bank had passed the resolution dated 16.12.2013 for self-interest and with the clear understanding that the benefits would be granted to even those employees who had retired by that time.
It held,
"In view of the ratio as laid down by the Hon'ble Apex Court in Dayanand Chakrawarty's case (supra), it is held that the present petitioners would be entitled for the salary for the period during which they remained out of service."
Case Title: Kailash Chandra Agarwal v. State of Rajasthan and Ors., with connected matters |
“It is therefore prayed that your Lordships would be graciously
pleased to admit this writ application and issue RULE NISI
calling upon the Opposite Parties to show cause as to why the
petitioners shall not be awarded compensation of Rs.3,00,000/-
(Rupees three lakh) only immediately as claimed by them.
And if the Opposite Parties do not show cause or show
insufficient cause, then issue a writ of Mandamus thereby
directing the Opposite Parties to pay a sum of Rs.3,00,000/-
(Rupees three lakh) only as compensation to the petitioners
within a stipulated period.
And further direct the Opposite Parties to pay the interest @
12% per annum from the date of accident till the date of payment
and litigation expenses to the petitioners….”
2. Background involving the case is on 10.6.2001 during morning
hour deceased, a poor man while cutting bamboo Kanis and its branches
in order to repair his thatched house, he came in contact with the live
electric line, which was in hanging position at lower level. Coming in
contact, the deceased died instantly. F.I.R. being lodged, a case was
registered, vide U.D.Case No.8 of 2001 corresponding to U.D.G.R. Case
No.134 of 2001, vide Annexure-1. Police took up investigation. After
completion of inquest process, the dead body was sent to the District
Hospital, Jajpur for post-mortem. Final report was prepared indicating
cause of death due to asphyxia caused by coming in contact with live
electric wire otherwise suffered on account of electric shock. Document
to this extent was filed, vide Annexure-2 & 3. On the premises that the
deceased was strong and stout and middle aged man and was earning
about Rs.4000/- per month from his agricultural land and Bhaga Chasi
and seasonal business and through breeding domestic animals like cows
and goats also involving sale of milk. His family members, such wife and
son approached several times to the Department for appropriate
compensation and finding no respite compelled to file the present Writ
Petition ultimately in 2010.
3. The Writ Petition was entertained in 2011, undisputedly, disclosing
pendency of a representation with the Electric Department involved
herein, vide Annexure-4 series. In spite of notice, there is no counter as of
now. However, on the basis of pleading and documents herein, the claim
of the Petitioners being objected by Mr.Mohanty, learned counsel for the
Establishment in charge presently on the premises that there has been no
establishment of allegation that the deceased has died coming in contact
of live electric wire belonging to the Department.
4. Keeping in view the claim and counter claim, this Court taking into
account the F.I.R. finds, the F.I.R. has a clear allegation of death coming
in contact with the live electric wire hanging at a lower level. The inquest
report as well as post-mortem report reveals the reason of coming in
contact with the electric wire and death out of electric shock. This Court
finds, a representation was also filed by the Claimants requesting for
grant of appropriate compensation appended to as Annexure-4 series
since 12.7.2001. There is no filing of counter. There is no denial of any of
the averments by the Petitioners herein including submission of
representation even. Further for there is involvement of an F.I.R., it is not
possible that for the disclosures through F.I.R., the Department did not
choose at least to investigate such death. Besides, both the inquest report
and the post-mortem report also confirm the death of the deceased
coming in contact with the live wire of the Department undisputedly. The
representation claiming compensation was filed in 2001. It is not
expected that the Department shut down its eyes even after filing of Writ
Petition forget if to take steps for minimal enquiry on a representation
being filed at least to have a fact finding report. The Writ Petition was
even filed in 2010. There is no response to the pleading herein even
assuming there may be requirement of adjudication of the issue of
likelihood of the Electricity Department for loss of time of 20 years in the
meantime, it may remain futile in asking the Petitioners to go to the Civil
Court at this stage.
5. At this stage, this Court finds, in similar situation, this Court in
disposal of OJC No.15558/97 by judgment dated 14.11.2014 has come to
allow the Writ Application of this nature. Case of the Petitioners also gets
support of another decision of this Court in Bhagaban Rout & anr. vrs.
Executive Engineer, CESCO, Salipur reported in 2023(I) OLR 188,
which is decided based on number of judgments of the Hon’ble apex
Court. In the process, this Court was pleased to grant compensation, as
6. Keeping in view the position settled with the above judgment being
the support of judgments of the Hon’ble apex Court, this Court finds, the
Petitioners at great suffering end are entitled to compensation.
In the process, taking into consideration the age of the deceased,
the position of both the Claimants, Petitioner No.1 losing her husband at
the age of 37 years and keeping in view the age of her son being 15 years
at the time of death of the deceased though there is no proof of income of
the deceased except a bald statement that the deceased was earning
Rs.4000/- at the relevant point of time, this Court directs, at least a sum of
Rs.2,00,000/- (rupees two lakh) be paid to the Claimants to mitigate the
loss on account of suffering for all these years on account of the death of
the deceased, the sole Earner. The amount, as directed, be released by the
Company taking over NESCO, i.e., Tata Power Northern Odisha
Distribution Ltd., as undertaken, within a period of one and half months
from the date of communication of this judgment, failing which the
Petitioners will be entitled to interest @ 7% per annum from the date of
death of the deceased. | The Orissa High Court has recently ordered two lakhs’ rupees compensation to the wife and son of a man who died after coming in contact with a live electric wire in 2001. While allowing the writ petition, the Single Judge Bench of Justice Biswanath Rath reprimanded the electricity department and said: “The representation claiming compensation was filed in 2001. It is not...
The Orissa High Court has recently ordered two lakhs’ rupees compensation to the wife and son of a man who died after coming in contact with a live electric wire in 2001. While allowing the writ petition, the Single Judge Bench of Justice Biswanath Rath reprimanded the electricity department and said:
“The representation claiming compensation was filed in 2001. It is not expected that the Department shut down its eyes even after filing of Writ Petition forget if to take steps for minimal enquiry on a representation being filed at least to have a fact finding report. The Writ Petition was even filed in 2010.”
Background
On 10.6.2001, the deceased-victim came in contact with a live electric line, which was in hanging position at very a lower level, while cutting bamboo kanis and branches to repair his thatched house. He died instantly. An FIR was lodged and the police took up investigation. After completion of inquest process, the dead body was sent to the District Hospital, Jajpur for post-mortem. The report attributed the cause of death to asphyxia which occurred as a result of coming in contact with live electric wire.
It was submitted that the deceased was a strong, stout and middle-aged man and was earning about Rs. 4000/- per month from his agricultural land, shared cultivation, seasonal business and through breeding domestic animals like cows and goats. His wife and son approached the department several times for appropriate compensation. However, after failing to obtain any relief, they were constrained to file the instant writ petition in 2010.
Mr. P.K. Mohanty, senior counsel for the electricity department contended that it has not been established that the deceased has died after coming in contact with live electric wire belonging to the department. Therefore, he argued, no compensation can be granted to the petitioners.
Court’s Observations
The Court noted that the inquest report as well as the post-mortem report reveal that the death occurred due to electric shock after the victim came in contact with live electric wire. Further it found that a representation was also filed by the petitioners requesting for grant of appropriate compensation on 12.7.2001. Interestingly, the respondents did not deny any of the averments made by the petitioners including submission of the above representation.
The Court further observed that even assuming there is any requirement for adjudication of the issue by a Civil Court, the same cannot be directed at this point of time as 20 long years have already elapsed in the meantime.
The Bench found that in a similar situation, the Court had granted relief to an applicant in OJC No. 15558/1997, by judgment dated 14.11.2014. Further, it held that the case of the petitioners also gets support from another recent decision of the High Court in Bhagaban Rout & Anr. v. Executive Engineer, CESCO, Salipur, 2023(I) OLR 188, which was decided after relying on a number of judgments of the Apex Court. Therein, the Court had granted appropriate compensation.
Having regard for the aforesaid, the Court concluded:
“In the process, taking into consideration the age of the deceased, the position of both the Claimants, Petitioner No.1 losing her husband at the age of 37 years and keeping in view the age of her son being 15 years at the time of death of the deceased though there is no proof of income of the deceased except a bald statement that the deceased was earning Rs.4000/- at the relevant point of time, this Court directs, at least a sum of Rs.2,00,000/- (rupees two lakh) be paid to the Claimants to mitigate the loss on account of suffering for all these years on account of the death of the deceased, the sole Earner.”
Case Title: Soli @ Sulachana Jena & Anr. v. Chief Executive Officer, NESCO (Electrical), Balasore & Anr.
Case No.: W.P.(C) No. 23491 of 2010
Judgment Dated: 3rd January 2023
Coram: Biswanath Rath, J.
Counsel for the Petitioners: Mr. D.C. Swain, Advocate
Counsel for the Respondents: Mr. P.K. Mohanty, Senior Advocate |
Counsel for Appellant :- Vikram Bahadur Singh, Amicus Curuae
Counsel for Respondent :- Mr. Shrawan Kumar Ojha (A.G.A.)
1. Present jail appeal has been preferred against
the judgment and order dated 7.7.2011 passed by
Nagar whereby the accused appellant Amar Singh
has been convicted and sentenced under section 366
I.P.C. to undergo five years rigorous imprisonment
and fine of Rs.2000/- and under section 376 I.P.C.
for seven years R.I. and fine of Rs.3,000/-, with
default provision in each of the offences. The
appellant has been acquitted of the charge under
2. Heard Mr. Vikram Bahadur Singh, learned
amicus curiae, appearing for the appellant and Mr.
Shrawan Kumar Ojha, learned Additional
Government Advocate for the State.
3. The prosecution case is that the complainant
Bablu, P.W. 1 lives in Swaroop Nagar, Kanpur in a
hut and carries on the business of selling eggs for
livelihood. Amar Singh, the present appellant works
in Arya Nagar karkhana. He also lives in Swaroop
Nagar. On 22.3.2010, Amar Singh enticed away
daughter of the complainant aged about 16-17
years, from her home. He agreed her to marry. The
complainant apprehended both, the accused Amar
Singh and his daughter from karkhana and gave
them in the custody of police. A written report was
given by him to the police station on the basis of
which case crime No.60 of 2010 under sections
363, 366 I.P.C. was registered.
4. Investigation was conducted by the investigating
officer. Statement(s) of the prosecutrix and other
prosecution witnesses were taken. The prosecutrix
was medically examned. Her statement was
recorded under section 164 CrPC. On pointing out
of the prosecutrix, place of occurrence was
inspected and site plan was prepared and
consequenly charge-sheet against the accused
appellant under secctions 363, 366, 376, 506 I.P.C.
was filed. Against the accused appellant, charges
under sections 363, 366, 376 I.P.C. were framed.
The accused denied the charges and claimed to be
5. From the side of the prosecution, P.W.1 Bablu,
P.W.2 prosecutrix, P.W.3 Dr. Jyotsana Kumari,
P.W.4 S.I. Ram Chandra Pal and P.W.5 Constable
Pradeep Kumar were examined. The written report
has been exhibited as Ext.Ka-1, supurdaginama as
Ext. Ka-2, medical report of the victim as Ext.Ka-3,
supplementary medical report as Ext.Ka-4, site plan
as Ext.Ka-5, charge-sheet as Ext.Ka-6, chik FIR as
Ext.Ka-7 and G.D. entry as Ext.Ka-8. Statement of
the accused under section 313 CrPC was recorded
where the case of the accused is of denial.
6. The prosecutrix in her statement under section
164 CrPC has stated that she went with the accused
to Arya Nagar Karkhana. She was forcibly raped
there and was threatened. She was subjected to rape
thrice. She became unconscious and in the morning,
she came home and told the incident to her mother
and then her parents and brother Deepu went to
karkhana and caught the accused from there and
gave him to the police.
7. P.W.1 Bablu has stated that on 22.3.2010, the
accused enticed away the prosecutrix from his
home. He also went to karkhana. Both of them were
found there and he agreed them to marry. From the
karkhana, he apprehended the accused and the
prosecutrix, and handed them over, to the police.
In cross-examination, he changed the time of the
incident and stated that the incident took place in
the month of November, then stated that the
incident occurred on December 28 evening. He
further stated in his cross examination that his
daughter has not told him that she was enticed
away. He knew the accused. He is a resident of the
same mohalla. He caught the accused from
karkhana and stated that he will get them married.
It is further stated that he has shown the place of
incident to the investigating officer. He stated that
he got the written report written by Rajvansh of
mohalla. He told the investigating officer that his
daughter has agreed for the marriage. He did not
agree for the marriage. However, he stated that if
the daughter is ready, he can marry her. The
accused was caught from Karkhana by P.W.1 and
his wife. He also stated that his nephew Deepu was
also with him. He denied the suggestion that he did
not tell the investigating officer that his daughter
has given consent for marriage. He did not agree for
that, nor tried to get them married.
P.W.2 has stated that on 22.3.2010, the accused took
her to his karkhana at Arya Nagar by enticing her
away. He pressed her mouth from her clothes and
subjected her to rape thrice. She got unconsious.
Someone opened the door of the karkhana. Then,
she went to her parents and told them about the
incident. Thereafter, her parents and her brother
Deepu took the accused from karkhana to the police
station. She was also taken along with the accused.
In her cross-examination, she stated that she did not
remember the date and time of the incident. Then
she says that it was Monday. The accused used to
come to her house when P.W.1 was away and
talked her and her mother. She further stated that
the accused used to come to her house for the past
one year and they used to crack jokes in the house
and her family members did not mind accused
coming to her house. Then he says that she went
alone on foot from the house towards mandir in the
evening. Along with her, her younger sister Pinki
also went.
She further stated that she told the investigating
officer that she is 18 years old. She was enticed
away by the accused. She told her parents that she
is going to temple. They did not stop her. On the
pretext of taking her mandir, the accused took her,
his home and thereafter to karkhana. She stated that
she on her own accord went away with the accused
to temple. The accused has not forced her to go to
temple. However, when instead of taking her to
temple, he was taking her to karkhana, she
objected. On the way, she has not opposed while
she was taken by the accused. She had full faith on
the accused. Chowkidar was present at the
karkhana. He was under influence of liquor. Both
had taken liquor. In the karkhana, the prosecutrix
P.W.2, Chowkidar and the appellant were present.
No one else was there. The door of the karkhana
was locked from inside. She then stated that she
went in karkhana on her own accord. She denied
the suggestion that she has not given statement to
the investigating officer that from karkhana, his
parents and uncle apprehended her and Amar
Singh, present appellant. She further denied the
suggestion that she has told the investigating officer
that she has stayed with Amar Singh at his house
for the entire night. Her clothes were not seized by
the investigating officer.
P.W.3 Dr. Jyotsana Kumari has examined the
prosecutrix, P.W.2. No injury was found on the
person of the proseccutrix, including her private
According to pathological report, no spermatozoon
was seen. P.W.3 Dr. Jyotsana Kumari has stated that
no definite opinion regarding rape with P.W.2 can
be given and in the medical examination, redness
and swelling was found on the vagina. However, no
blood was found. There was no injury on any part
of the prosecutrix body. P.W.3 further stated that
she has not seized any cloth of the prosecutrix. As
per report of the Chief Medical Officer, the
prosecutrix was 19 years old.
P.W.4 S.I. Ram Chandra Pal, investigating officer in
his statement has said that on the pointing out of
P.W.2, he inspected the place of occurrence and has
prepared the site plan in his writing. He further
stated that P.W.1 has told him that the accused has
agreed for marriage. He further stated that P.W.1
told him that he went at the place of occurrnece
with his wife and brother Pappu. P.W.4 further
stated that P.W.1 has told him that the accused
enticed away his daughter and had taken to his
home. The investigating officer has stated that
P.W.1 has not told him that the accused took his
daughter to karkhana. P.W.4 further stated that the
prosecutrix told him that on the pretext of taking
her to temple and after visiting the temple, the
accused took her to his home and kept her entire
night at his house. She further stated that the
accused raped her at his house, however, she did
not tell him that how many times she was raped.
P.W.4 further stated that the prosecutrix has not told
him regarding any threat or marpeet done by the
accused. She had not told him regarding taking the
accused to karkhana. P.W.4 has further stated that
he has not inspected karkhana. He further stated
that the prosecutrix in her statement told him that
the accused enticed away the prosecutrix to his
home and he made her agreed for marriage.
The mother of the prosecutrix also told him that the
accused took the prosecutrix from his home to
karkhana in the morning. Mother of the prosecutrix
further told that when they reached to karkhana,
then the accused and the prosecutrix were found
standing there. During investigation, he has not
received the blood stained clothes of the
prosecutrix. He has not recovered the sample and
soil from the place where the prosecutrix was
allegedly raped. He has not taken any mark from
the place of occurrence. He further stated that the
place of occurrence is room of the accused
appellant. He has not shown the place where the
accused and the prosecutrix were apprehended, in
the site plan. He has denied the suggestion that he
has prepared a baseless site plan. He has further
denied the suggestion that he has not shown place
of occurrnece in the site plan. He has not shown
karkhana in the site plan. The suggestion that the
place which he has shown in the site plan is not the
place of occurrence has been denied by the witness
and further he denied the suggestion that on the
saying of the family members of the prosecutrix
and under pressure by senior police officers, he
completed the formality and filed false charge sheet
against the accused.
P.W.5 Constable Pradeep Kumar is a formal
witness, who has proved the first information
8. It is submitted on behalf of the appellant that the
room of the accused from the hut of P.W.1 is a few
paces away. The prosecutrix has not raised any
alarm while going to the room of the accused. He
submits that the prosecution has failed to prove its
case beyond reasonable doubt. The testimony of the
prosecutrix is not worthy of credence.
9. Learned Additional Government Advocate has
opposed the appeal and has submitted that the
testimony of the prosecutrix is intact. She has
levelled clear allegation against the appellant. The
same statement has been given by her in her
statement under section 164 CrPC. It is lastly
submitted that minor irregularity in the prosecution
case will not come in the aid of the accused. In
support of his contention, learned A.G.A. has relied
on judgment of Supreme Court in Vijay alias
Chinee versus State of Madhya Pradesh
2010(8)SCC 191 and State of Kerala versus
Kundumkara Govindan and another 1969
10. Having heard learned amicus curiae, appearing
for the appellant and learned A.G.A. as well as
perusal of the record, I find that as regards the date
of occurrence, in the written report, there is no
mention of the date of occurrence. In the chick
F.I.R. also, date of occurrence is not mentioned.
P.W.1 in his statement has stated that the date of
occurrnece is 22.3.2010, i.e. the date his daughter
was enticed away by the accused. In the cross-
examination, he has changed the time of occurrnece
and has stated that the incident is of November
month. Then he says that the incident is of
P.W.2 in her examination-in-chief has not stated the
exact date of incident; rather she has stated that it
was Monday. In her cross-examination, she has
stated that the incident occurred on 22.3.2010.
P.W. 4 S.I. Ram Chandra Pal has stated in his chief
that on 23.3.2010 when he was posted at police
Swaroop Nagar, the accused was given in his
custody which shows that according to testimony of
P.W.1, the date of occurrnece comes to 22 nd March.
As regards the place of occurrence, P.W.1 in his
statement has stated that the place of occurrnece is
karkhana where the appellant was an employee.
P.W.2 in her examination-in-chief has stated that
she was subjected to rape at karkhana. However, in
her cross-examination, she has changed it. She has
denied the suggestion that she stayed with the
accused at his home for the entire night. She further
stated in her cross that she told the investigating
officer that she was first taken to the house of the
accused, then to karkhana.
The investigating officer in his statement has stated
that it was P.W.1 who told him that the appellant
took his daughter to his house. P.W.4 has stated
that the prosecutrix has also told him that she was
kept for the entire night at the house of the
appellant. She further stated to P.W.4 that she was
raped at the house of the appellant. She has not told
P.W.4 regarding the incident at karkhana. The
mother and the younger sister of P.W.2 and P.W.2
herself – all have stated in their statement to P.W.4
that the accused took the prosecutrix to his home
because the appellant had got the consent of the
prosecutrix for marriage. P.W.4 further stated that
he inspected the place of occurrence at the pointing
out of the prosecutrix and prepared the site plan. He
pointed out the room where the incident took place
in the site plan, i.e. the room of the accused
appellant. He further stated that in the site plan, he
has not shown karkhana. The site plan prepared by
the investigating officer is Ext. Ka-5 wherein the
place of occurrnece is shown at the room of the
11. Collective reading of the statements of P.W.1,
P.W.2 and the statement of P.W.4 as also the site
plan does not show as to whether the place of
occurrence is karkhana or the house of the accused
appellant and thus, exact place of occurrence is
12. Now. coming to the testimony of the
prosecutrix who in her statement has stated that on
the date of incident, she went alone from her house
to J.K. Mandir. Thereafter, she stated that on
22.3.2010 in the evening, she went to J.K. Mandir
with her younger sister Pinki. Thereafter, again she
says that she on her own accord and free will went
away with the appellant to Mandir and no force was
applied by the appellant to take her to temple.
While she was going with the accused to Mandir,
when she found that instead of taking her to
Mandir, the appellant was taking her to karkhana,
she objected and raised alarm.
Then she says that on the way, she has not made
any resistance while she was taken by the accused
as she had full faith on the accused. She further
says that she went to karkhana on her free accord.
She denied the suggestion that she has told the
investigating officer that she remained with the
appellant at his house for theentire night.
13. A perusal of the statement of the prosecutrix
shows that the same is self contradictory and
inconsistent and does not inspire confidence. At one
place, she says that she was enticed away by the
appellant and was subjected to rape at karkhana and
also was threatened by the accused appellant. Then,
in her cross-examination, she says that she went to
karkhana at her own accord. She was aware that the
accused was taking her on the opposite route which
does not go to temple. She did not make any
resistance as she had full faith on the appellant. She
has stated that the accused has never persuaded for
going out from the house. The appellant used to
come to her house for the last one year with the
consent of family members and they did not mind
that. P.W.2 further says that they never went to the
house of the accused. She further says that on the
pretext of taking to Mandir, the accused took her to
his home and then to karkhana. She denied the
sugestion that she has told the investigating officer
that she remained with the accused appellant for the
entire night at his home; rather she stated that she
told the investigating officer that she was in
karkhana with the accused appellant. She further
stated that she went alone from her house to J.K.
Mandir. Then she says that she was going along
with her younger sister. She further stated that no
first information report was written in front of her
at the police station. Thus, the testimony of the
prosecutrix varies from every stage and does not
inspire confidence, hence, to convict the appellant
on testimony of P.W.2, some corroboration is
required as held by Supreme Court in Mod. Ali
alias Guddu versus State of U.P. (2015)7 SCC
272 (Emphasis is on paras 29 and 30).
P.W.3 Dr. Jyotsana Kumari has stated that
according to report of the Chief Medical Officer,
the prosecutrix was 19 years old. She has not given
any clear opinion on rape. No external or internal
injury has been found on the person of the
prosecutrix. No spermatozoon has been found in
the pathological report. There was no bleeding.
Redness or swelling on the private part/vagina
could have come from some stimulant substance
like red pepper, petrol and therefore, has not given
any definite opinion about rape. P.W.4 has disputed
the place of occurrence as told by P.W.1. Statement
of P.W.2 regarding place of occurrence is also
doubtful. P.W.4 has stated that he has not collected
any soil or mark from the place of occurrnece. He
has not visited even karkhana which according to
the prosecutrix is the place of occurrence. He has
stated that he has not shown karkhana in the site
14. On overall consideration of the prosecution
evidence, statement of the prosecution witnesses
and the material collected by the investigating
officer, it is clear that in the written report and the
first information report, no date of incident has
been mentioned. Scribe of the first information
report Rajvansh has not been produced. The
prosecutrix in her statement has stated that she went
to temple along with the appellant at her free will
and accord, however, she told the investigating
officer that Amar had taken her to his home and she
was kept there whole night. This shows
contradictory statement of the prosecutrix.
Whether the place of occurrence is karkhana or the
house of accused becomes doubtful as per the site
plan itself. In the site plan, karkhana has not been
shown. P.W.4 has not visited the place of
occurrence, i.e. karkhana. Neither the soil nor the
clothes of the prosecutrix has been collected by the
investigating officer. Chowkidar of karkhana has
not been produced by the prosecution. The younger
sister of the prosecutrix who could have been the
eye-witness has also not been produced by the
prosecution; rather has been withheld. Hence for
not examining Chowkidar and Pinki, younger sister
of P.W.2, adverse inference is to be taken against
the prosecution as held by Supreme Court in 2001
Criminal Law Journal 2602 Takhaji Hiraji versus
Thakore Kubersing Chamansing and others.
Relevant paragraph 19 is reproduced as under :
"19. So is the case with the criticism levelled by the High Court on the prosecution case
finding fault therewith for non-examination of independent witnesses. It is true that if a
material witness, which would unfold the genesis of the incident or an essential part of
the prosecution case, not convincingly brought to fore otherwise, or where there is gap
or infirmity in the prosecution case which could have been supplied or made good by
examining a witness which though available is not examined, the prosecution case can
be termed as suffering from a deficiency and withholding of such a material witness
would oblige the Court to draw an adverse inference against the prosecution by
holding that if the witness would have been examined it would not have supported the
prosecution case. On the other hand if already overwhelming evidence is available and
examination of other witnesses would only be a repetition or duplication of the
evidence already adduced, non-examination of such other witnesses may not be
material. In such a case the Court ought to scrutinise the worth of the evidence
adduced. The court of facts must ask itself - whether in the facts and circumstances of
the case, it was necessary to examine such other witness, and if so, whether such
witness was available to be examined and yet was being withheld from the court. If the
answer be positive then only a question of drawing an adverse inference may arise. If
the witnesses already examined are reliable and the testimony coning from their mouth
is unimpeachable the Court can safely act upon it uninfluenced by the factum of non-
examination of other witnesses. In the present case we find that there are at least 5
witnesses whose presence at the place of the incident and whose having seen the
incident cannot be doubted at all. It is not even suggested by the defence that they
were not present at the place of the incident and did not participate therein. The injuries
sustained by these witnesses are not just minor and certainly not self-inflicted. None of the
witnesses had a previous enmity with any of the accused persons and there is apparently no
reason why they would tell a lie. The genesis of the incident is brought out by these
witnesses. In fact, the presence of the prosecution party and the accused persons in the
chowk of the village is not disputed. How the vanity of Thakores was hurt leading into a
heated verbal exchange is also not in dispute. Then followed the assault. If the place of the
incident was the chowk then it was a sudden and not pre-meditated fight between the two
parties. If the accused persons had reached their houses and the members of the prosecution
party had followed them and opened the assault near the house of the accused persons then
it could probably be held to be a case of self-defence of the accused persons in which case
non-explanation of the injuries sustained by the accused persons would have assumed
significance. The learned Sessions Judge has on appreciation of oral and the circumstantial
evidence inferred that the place of the incident was the chowk and not a place near the
houses of the accused persons. Nothing more could have been revealed by other village
people or the party of tight rope dance performers. The evidence available on record shows
and that appears to be very natural, that as soon as the melee ensued all the village people
and tight-rope dance performers took to their heels. They could not have seen the entire
incident. The learned Sessions Judge has minutely scrutinised the statements of all the eye-
witnesses and found them consistent and reliable. The High Court made no effort at
scrutinising and analysing the ocular findings arrived at by the Sessions Court. With the
assistance of the learned counsel for the parties we have gone through the evidence adduced
and on our independent appreciation we find the eye-witnesses consistent and reliable in their
narration of the incident. In our opinion non-examination of other witnesses does not cast any
infirmity in the prosecution case. "
(Emphasised by me)
15. In Kundumkara Govindan’s case (supra), relied
on by learned Additional Government Advocate,
Assistant Sessions Judge acquitted the accused
giving benefit of doubt, holding that the evidence of
the prosecutrix in a rape case cannot be believed
unless it is corroborated in material particulars. It is
not the case here. Law in this regard is settled.
Statement of the prosecutrix alone is sufficient to
convict the accused if the same inspires confidence
and is of impeccable character and quality. In case
the statement is infirm, then some corroboration is
The facts of the present case are different from the
above case law. Hence, in the facts of the present
case, rule of prudence cannot be dispensed with as
in view of the self contradictory and shaky
testimony of the prosecutrix, corroborative material
is required which is absent in this case.
16. So far as the judgment in Vijay alias Chinee
versus State of M.P. (supra) is concerned, relied on
by learned A.G.A., place of incident was not
disputed and admittedly, the prosecutrix at the place
of incident was subjected to rape and therefore,
there are concurrent finding of facts by the two
courts. Here, in the present case, place of
occurrence is itself disputed by the investigating
officer and from the testimony of P.W.2. In that
regard also, it does not inspire confidence.
Therefore, this judgment also is not applicable in
the facts of the present case.
17. Since the place of occurrence in this case is not
clear, coupled with the fact that the testimony of
P.W.2 is quite shaky and does not inspire
confidence as also the fact that younger sister Pinki
of P.W.2 who was an eye-witness has not been
produced by the prosecution, Chowkidar of
karkhana at Arya Nagar has also not been made
accused along with the appellant and has not been
produced by the prosecution, scribe of the first
information report has also not been made witness
in this case, I am of the opinion that such kind of
testimony of P.W.2 does not inspire confidence.
18. Thus, in view of the aforesaid discussion, the
prosecution has failed to prove its case beyond
reasonable doubt. Every part of the testimony of the
prosecutrix is infirm, doubtful and contradictory
which does not pose confidence. There is no
corroborative evidence in support of the testimony
of the prosecutrix. The prosecution has not been
able to prove the place of occurrence, the time of
occurrence and manner of occurrence. The exact
place of occurrence has not been established and
there is variation in the evidence about place of
occurrence as per the evidence of the investigating
officer and the witnesses. The court below has not
taken note of this contradiction which was a
material contradiction and therefore there has been
a total wrong appreciation of evidence on record
which has resulted in miscarriage of justice. There
appears to be suppression of material facts relating
to occurrence because of the contradiction as
indicated. Unusual manner of shifting the place of
occurrence and the fact of the prosecutrix having a
company of the accused appellant at her free will
and accord while going to temple and then to
karkhana as also they having been acquainted with
each other leaves doubt on the veracity of the
incident. The investigating officer has not collected
any evidence from the place of occurrence. Two
important and available witnesses have been
withheld by the prosecution from the Court,
therefore, it is hard to convict the appellant on this
quality of evidence and it is a fit case to draw
adverse inference against the prosecution for
withholding two important witnesses from the
19. In view of what has been stated hereinabove,
the jail appeal is allowed and the judgment and
order of conviction and sentence dated 7.7.2011
passed by Additional Sessions Judge, Court No.5,
Kanpur Nagar in S.T. No.759 of 2010, is set aside.
20. As per report dated 12.6.2017, sent by
Superintendent, District Jail, Kanpur Nagar, the
appellant has already been released after serving
full sentence and giving benefit of remission
period.
21. Let a copy of this judgment be transmitted to
the learned trial Court. The lower court records be
also sent back to the lower court.
Location: High Court of Judicature at | The Allahabad High Court recently set aside the conviction order passed against a rape accused as it found each and every part of the testimony of the prosecutrix to be 'infirm', 'doubtful', and 'contradictory'.Significantly, the accused has already been released after serving a full sentence after getting the benefit of a remission period.The bench of Justice Karunesh Singh Pawar found...
The Allahabad High Court recently set aside the conviction order passed against a rape accused as it found each and every part of the testimony of the prosecutrix to be 'infirm', 'doubtful', and 'contradictory'.
Significantly, the accused has already been released after serving a full sentence after getting the benefit of a remission period.
The bench of Justice Karunesh Singh Pawar found that in support of the testimony of the prosecutrix no corroborative evidence was presented before the Court and that the prosecution had not been able to prove the place of occurrence, the time of occurrence, and the manner of occurrence.
The case in brief
Essentially, one Amar Singh (released on remission) preferred against the judgment and order of 2011 passed by Additional Sessions Judge, Kanpur Nagar convicting him under section 366 I.P.C. to undergo five years rigorous imprisonment and under section 376 I.P.C. for seven years R.I.
Complainant Bablu (P.W. 1) alleged that her daughter aged about 16-17 years was enticed away from her home by Amar Singh/Accused. He agreed with her to marry. The complainant apprehended both, the accused Amar Singh and his daughter and gave them in the custody of the police.
The prosecutrix in her statement under section 164 CrPC stated that she went with the accused to Arya Nagar Karkhana wherein she was forcibly raped there and was threatened.
She further said that she was subjected to rape thrice, became unconscious and in the morning, she came home and told about the incident to her mother, and then her parents and brother Deepu went to karkhana and caught the accused from there and gave him to the police
Court's observations
Having heard amicus curiae, appearing for the appellant, and A.G.A. as well as a perusal of the record, the Court found that as regards the date of occurrence, in the written report, there was no mention of the date of occurrence.
In the chick F.I.R. also, the date of occurrence was not mentioned. P.W.1/Complainant in his statement stated that the occurrence is of March 2010, however, in the cross-examination, he changed the time of occurrence and stated that the incident is of November month, thereafter, he said that the incident is of December.
Regarding the evidence of P.W.2/victim, the Court noted that in her examination-in-chief, she had not stated the exact date of the incident. Further, at one place, she said that she was enticed away by the appellant and was subjected to rape at karkhana, and also was threatened by the accused-appellant. Then, in her cross-examination, she said that she went to karkhana of her own accord.
The Court further took into account the entire testimony of the victim and observed that her statements of the prosecutrix varied at each and every stage and does not inspire confidence
On a collective reading of the statements of P.W.1/Complainant, P.W.2/Victim, and the statement of P.W.4/Investigating officer as also the site plan, the Court noted that the same did not show whether the place of occurrence is karkhana or the house of the accused-appellant and thus, exact place of occurrence is doubtful.
Thus, the Court held that the prosecution had failed to prove its case beyond a reasonable doubt and that each and every part of the testimony of the prosecutrix was infirm, doubtful and contradictory which does not pose confidence.
"The exact place of occurrence has not been established and there is variation in the evidence about place of occurrence as per the evidence of the investigating officer and the witnesses. The court below has not taken note of this contradiction which was a material contradiction and therefore there has been a total wrong appreciation of evidence on record which has resulted in miscarriage of justice. There appears to be suppression of material facts relating to occurrence because of the contradiction as indicated. Unusual manner of shifting the place of occurrence and the fact of the prosecutrix having a company of the accused appellant at her free will and accord while going to temple and then to karkhana as also they having been acquainted with each other leaves doubt on the veracity of the incident," the Court further remarked.
Consequently, the jail appeal was allowed and the judgment and order of conviction and sentence was set aside.
Case title - Amar Singh v. State [JAIL APPEAL No. - 5100 of 2011] |
( By Sri K.Nageshwarappa, HCGP for R-1;
Sri.C.N.Raju, Advocate for R-2)
This Criminal Revision Petition is filed under Section 397(1)
read with Section 401 of Cr.P.C. praying to call for records, allow
the Revision Petition and set aside order dated 4.8.2017 passed by
the learned V Addl. District and Sessions Judge, Mandya in
S.C.No.20/2017, in so far discharging the respondent
No.2/accused No.3 for the offence punishable under Section 302,
493, 494, 496, 120-B, 201 R/w Section 34 of IPC in the interest of
1. State of Karnataka by
( By Sri.K.Nageshwarappa, HCGP for R-1;
Sri.C.N.Raju, Advocate for R-2)
This Criminal Petition is filed under Section 482 of Cr.P.C.
praying to direct any other investigating authority to investigate
the case in Cr.No.400/2015 which is renumbered as
S.C.No.20/2017 pending on the file of the V Addl. District and
Sessions Judge, Mandya for offences punishable under Section
493, 494, 496, 120(B), 302, 201 r/w 34 of IPC in the interest of
Residing at Kalenahalli Village,
High Court of Karnataka at Bangalore,
This Criminal Petition is filed under Section 482 of Cr.P.C.
praying to set aside the order dated:22.08.2019 passed by the
V Additional District and Sessions Judge at Mandya in
S.C.No.20/2017 arising out of crime No.400/2015 of Mandya Rural
Police by allowing this petition in the interest of justice.
The Criminal Revision Petition and Criminal Petitions are
having been heard through Physical Hearing/Video Conferencing
Hearing and reserved for orders on 21.07.2022, coming on for
pronouncement this day the Court made the following:
The respondent No.1- complainant-Police has charge
sheeted respondent No.2 i.e., accused No.3 - Smt.Mamatha
R., who is respondent No.2 in Criminal Revision Petition
No.206/2018 and Criminal Petition No.711/2018. She is also
the petitioner in Criminal Petition No.7026/2019. A charge
sheet was filed by respondent No.1-Police in Crime
No.400/2015, for the offences punishable under Sections
302, 493, 494, 496, 120-B, 201 read with Section 34 of
Indian Penal Code, 1860, (hereinafter for brevity referred to
as `IPC'). An application under Section 227 of Code of
Criminal Procedure, 1973 (hereinafter for brevity referred to
as `Cr.P.C.'), filed by said Smt.Mamatha R., (accused No.3)
in S.C.No.20/2017, pending in the Court of learned V
Addl.District & Sessions Judge, Mandya (hereinafter for
brevity referred to as `Sessions Judge's Court'), came to be
allowed by the order of the Sessions Judge's Court dated
04.08.2017 and accused No.3 came to be discharged for the
offences above mentioned.
2. Challenging the said order, CW-2 K.C.Ramu @
Ramanna, the father of the deceased K.R.Manjunatha and
father-in-law of accused No.3-Smt.Mamatha R., has filed
Criminal Revision Petition No.206/2018, under Section 397(1)
read with Section 401 of Cr.P.C.
Very same CW-2 K.C.Ramu @ Ramanna has filed
Criminal Petition No.711/2018, under Section 482 of Cr.P.C.
seeking a direction to any other investigating authority to
investigate the case in Crime No.400/2015, which is
later numbered as S.C.No.20/2017 pending in the Sessions
After the discharge of accused No.3 by the Sessions
Judge's Court vide its order dated 04.08.2017, the
complainant-State has filed an application under Section 319
of Cr.P.C. on 22.08.2019. The Sessions Judge's Court issued
summons to the said Smt.Mamatha R., on the application.
Aggrieved by the said order of the Sessions Judge's Court,
said Smt.Mamatha R., has filed Criminal Petition
No.7026/2019 under Section 482 of Cr.P.C.
3. The respondent No.1-State is being represented by
learned High Court Government Pleader. The respondent-
Smt.Mamatha R., is being represented by her counsel.
4. The records in S.C.No.20/2017 were called for and
the same are placed before this Court.
5. Since all these matters have arisen out of the very
same Sessions Case No.20/2017, all these matters are
connected with each other and taken up to hear the common
arguments and to pass a common order.
6. Heard the arguments from both side. Perused the
materials placed before this Court.
For the sake of convenience, the parties would be henceforth
referred to as per their rankings before the trial Court.
7. After hearing both side, the points that arise for my
consideration are,-
(1) Whether the order dated 04.08.2017, passed
in S.C.No.20/2017 by the Sessions Judge's Court is
perverse warranting interference at the hands of this
deserves to be allowed with a direction for an
investigating agency other than the Karnataka State
Police to investigate in Crime No.400/2015 in the 1st
respondent-Police Station?
(3) Whether the order dated 22.08.2019, passed
in S.C.No.20/2017 by the Sessions Judge's Court
ordering issuance of summons to the proposed accused
No.3 therein deserves to be set aside?
8. The case of prosecution is that, on 25.08.2015, in the
afternoon, the respondent-Police received an information
about the presence of a dead body near V.C. canal, which
was closed to Kalenahalli. The police after visiting the spot,
taken out the dead body and noticed that it had piercing
injuries on the back of the head and stomach and also the
legs, hands and neck of the dead body were tied with a rope.
Thereafter, on the same day, at about 5.30 p.m., upon an
information of one Sri H.Anand Kumar, the Police Officer,
Crime No.400/2015 came to be registered in the respondent-
Police Station against unknown persons for the offences
punishable under Sections 302, 201 of IPC. After
investigation, the respondent-Police filed charge sheet
against the three accused, including Smt.Mamatha R., the
petitioner in Criminal Petition No.7026/2019, for the above
said offences.
9. The summary of the charge sheet is that the
deceased was one Sri K.R.Manjunatha. He married
accused No.3 Smt.Mamatha R., on 04.03.2009. Out of their
marriage, they got a girl child by name Bhandavya. On the
date 09.10.2013, deceased K.R.Manjunatha left his house.
Thereafter, his whereabouts were not known till 2015. When
said K.R.Manjunatha returned back to his house in April
2015, he came to know that his wife Mamatha R., (accused
No.3), had married to accused No.1 Manjunath Y.D. @
Sketch Manju @ Manju. The deceased K.R.Manjunatha had
requested said accused No.1 to give the custody of his
daughter Bhandavya back to him. The accused No.1 and
accused No.3 thinking that so long deceased K.R.Manjunatha
is alive, they wont have peace in life, hatched a conspiracy to
cause his death. Accordingly, accused No.1 engaged accused
No.2 to kill K.R.Manjunatha. Accordingly, accused Nos.1 and
2 took the deceased K.R.Manjunatha with them and made
him to consume liquor and put him in a car and caused his
murder by inflicting multiple pierce injuries upon him with a
knife and in order to destroy the evidence of the incident,
took the dead body in the same car for some more distance
and threw it in V.C. canal near Hulikere. Thus, they have
committed the alleged offence.
10. Learned counsel for the petitioner in Criminal
Revision Petition No.206/2018 and Criminal Petition
No.711/2018 in his argument submitted that CW-30 –
Smt.Lakshmi, the mother of the deceased, apart from giving
the details of the marital life of the deceased with accused
No.3, has also stated about the second marriage of accused
No.3 with accused No.1 and has specifically expressed her
suspicion that accused No.1 and accused No.3 with the help
of others, have taken her son some where, killed him and
dumped his body in V.C. canal. He further submitted that
CW-31 Nataraj, the friend of the deceased also spoken about
the marital life of accused No.1 with accused No.3 and the
second marriage of accused No.3 with accused No.1. He too
has expressed his belief that accused No.3 was involved in
the death of the deceased.
Learned counsel further submitted that CW-8 Sukanya
is the neighbour of accused Nos.1 and 3 and she has also
spoken about she seeing accused No.1 and accused No.3
living together as her neighbour as husband and wife.
11. These evidences clearly make out a prima facie case
that accused No.3, apart from marrying with accused No.1,
has also involved in the commission of the murder of her first
husband deceased K.R.Manjunatha. However, the trial Court
opining that the offence punishable under Section 494 of IPC
cannot be investigated by the police and it could not notice
any tangible material to attract Section 120-B of IPC, has
allowed the application filed by accused No.3 filed under
Section 227 of Cr.P.C., which is erroneous, as such, the
Criminal Revision Petition deserves to be allowed.
He further submitted that during the course of
investigation, the Investigating Officer since has not recorded
the statement of Bhandavya, the daughter of the deceased
and accused No.3, the investigation has not been done
properly, as such, further investigation to record the
statement of said Bhandavya is required, for which, Criminal
Petition No.711/2018 deserves to be allowed.
12. Learned counsel for respondent No.2 in Criminal
and for the petitioner in Criminal Petition No.7026/2019 i.e.,
for accused No.3, in his argument submitted that none of the
charge sheet witnesses have stated about the involvement
of accused No.3 in the alleged commission of crime. There
are no proof for the second marriage between accused Nos.1
and 3. Further stating that if Criminal Revision Petition is allowed,
his Criminal Petition No.7026/2019 becomes infructuous, learned
counsel prayed for dismissal of Criminal Revision Petition
No.206/2018 and Criminal Petition No.711/2018.
13. Learned High Court Government Pleader who was
directed to file his written arguments, has filed his written
arguments, wherein he has contended that there are ample
materials to prosecute accused No.3 for the offences. There
are sufficient materials to show that she had undergone
second marriage with accused No.1 and hatched a conspiracy
to eliminate her first husband deceased K.R.Manjunatha. It
is further stated by the learned High Court Government
Pleader that since the State did not challenge the order of the
trial Court allowing the IA. filed by accused No.3 under
Section 227 of Cr.P.C. and after recording of evidence of few
witnesses, it noticed that there are incriminating materials
against accused No.3, as such, the prosecution filed an
application under Section 319 of Cr.P.C. in the trial Court,
upon which, the summons has been ordered against accused
No.3. He orally submitted that if the Criminal Revision
Petition, which he supports, is allowed, his application under
Section 319 of Cr.P.C. pending in the trial Court become
14. The deceased K.R.Manjunatha married the original
accused No.3 Smt.Mamatha R., on 04.03.2009. The couple
got a small child born to them out of their wedlock by name
Bhandavya and the said child was aged about six years as on
the date of the alleged incident. Said K.R.Manjunatha was
said to have left his house without intimation to anybody due
to the debt incurred for his vices. After lodging the police
complaint, said K.R.Manjunatha was said to have traced by
the police. His father K.C.Ramu (CW-2) was said to have
cleared his debts. CW-2 is also shown to have stated that, at
the instance of his second son, K.R.Mahesha (CW-3), the
family property was said to be partitioned. The property
going to the share of deceased K.R.Manjunatha is shown to
have been made in the name of his daughter Bhandavya.
According to CW-2, once again on 09.10.2013, his son
K.R.Manjunatha was found missing, in which connection, a
complaint was lodged with the police on 15.11.2013. His
wife i.e., Smt.Mamatha R., and their daughter Bhandavya
were started living in the house of CW-2. However, later at
the instance of maternal uncle of said Mamatha R., the said
Mamatha R., (original accused No.3) was shown to have
married to accused No.1 Y.D.Manjunatha. Later in April
2015, K.R.Manjunatha, the missing person, was said to have
returned to his house and after coming to know that his wife
Mamatha R., had married to accused No.1 and was residing
with him, he started seeking the custody of his daughter
Bhandavya from her. It is in that connection, in order to get
rid of K.R.Manjunatha, who was frequently visiting accused
Nos.1 and 3 and pestering them to give custody of his
daughter Bhandavya, all the three accused, including
Mamatha R., hatched a conspiracy and killed K.R.Manjunatha
and threw his dead body into V.C. canal.
The father of the deceased i.e., CW-2 K.C.Ramu,
brother of the deceased i.e., CW-3 K.R.Mahesha, mother of
the deceased CW-30 Smt.Lakshmi, are shown to have given
their statements before the Investigating Officer on the
above lines.
15. Apart from the above witnesses, CW-4 Papanna,
CW-5 Thimmegowda and CW-6 Shivanna, are shown to have
stated before the Investigating Officer about the second
marriage of Mamatha R. (original accused No.3) with accused
No.1. CW-8 Sukanya is shown to have stated before the
Investigating Officer that accused No.1 and accused No.3
Mamatha R., were residing together as her neighbour.
Apart from these witnesses, CW-22 Nandisha, who is
none else than the elder brother of Mamatha R. (accused
No.3) is also shown to have stated about they performing the
second marriage of Mamatha R. with accused No.1.
16. The charge sheet witnesses in the additional charge
sheet CW-42 K.B.Prakash is shown to have given his
statement stating that it was him who as a Purohit,
performed the marriage of accused No.1 and Mamatha R.
CW-43 S. Siddesh and CW-44 K.B. Kumaraswamy in
the additional charge sheet are shown to have given their
statement stating that both of them have attended the
marriage of Mamatha R., (accused No.3) with accused No.1.
Thus, at this stage, there are ample materials to
prosecute original accused No.3 Mamatha R. for the offence
punishable under Section 494 of IPC.
The Sessions Judge's Court observing that an offence
punishable under Section 494 of IPC cannot be investigated
by the police, has proceeded to ignore the ample materials
available before it to prosecute accused No.3 Mamatha R., for
the alleged offence.
17. Learned counsel for the revision petitioner relying
upon the judgment of Hon'ble Apex Court in
State of Orissa –vs- Sharat Chandra Sahu and another,
reported in (1996) 6 SCC 435, submitted that police are not
debarred from investigating non-cognizable cases and include
them in the charge sheet, more particularly, Section 494 of
In Sharat Chandra Sahu's case (supra), the police had
filed a charge sheet for the offence punishable under Section
498-A of IPC as also under Section 494 of IPC. The
respondent No.1 therein filed a petition under Section 482 of
Cr.P.C. before the Orissa High Court seeking quashing of the
proceedings and charges framed against him. The High
Court partly allowed the petition with the finding that since
respondent No.2, the wife who had made the complaint in
writing to the Women's Commission about respondent No.1
contracting the second marriage, but, not personally herself
filed complaint under Section 494 of IPC, on which
cognizance could not have been taken by the learned
Magistrate in view of provisions contained in Section 198(1)
of Cr.P.C. Consequently, the charge framed by the learned
Magistrate under Section 494 of Cr.P.C. was quashed, but,
the charge under Section 498-A of IPC was maintained and
the petition under Section 482 of Cr.P.C. to that extent was
dismissed. The same was challenged by the State of Orissa
before the Hon'ble Apex Court. The Hon'ble Apex Court in
Paragraphs-11 and 12 of its judgment observed as below :
" 11. Sub-section (4) creates a legal fiction and
provides that although a case may comprise of
several offences of which some are cognizable and
others are not, it would not be open to the police to
investigate the cognizable offences only and omit the
non-cognizable offences. Since the whose case
(comprising of cognizable and non-cognizable
offences) is to be treated as cognizable, the police
had no option but to investigate the whole of the
case and to submit a charge-sheet in respect of all
the offences, cognizable or non-cognizable both,
provided it is found by the police during investigation
that the offences appear, prima facie, to have been
committed.
12. Sub-section (4) of Section 155 is a new
provision introduced for the first time in the Code in
1973. This was done to overcome the controversy
about investigation of non-cognizable offences by the
police without the leave of the Magistrate. The
statutory provision is specific, precise and clear and
there is no ambiguity in the language employed in
sub-section (4). It is apparent that if the facts
reported to the police disclose both cognizable and
non-cognizable offences, the police would be acting
within the scope of its authority in investigating both
the offences as the legal fiction enacted in sub-
section (4) provides that even a non-cognizable case
shall, in that situation, be treated as cognizable."
With the above observation, the Hon'ble Apex Court
allowed the appeal and the impugned judgment and order
passed by Orissa High Court in so far as it purports to quash
the charge under Section 494 of IPC and the proceedings
relating thereto, was set aside.
18. In Ushaben –vs- Kishorbhai Chunilal Talpada and
others, reported in (2012) 6 SCC 353, the Hon'ble Apex
Court was pleased to observe that, where complaint contains
allegations of commission of offences both under Section
498-A of IPC, as well as Section 494 of IPC, the Court can
take cognizance thereof even on the police report. It further
observed that no fetters can be put on powers of police
preventing them from investigating the complaint alleging
offences both under Section 494 and Section 498-A of IPC.
From the above judgment, it is clear that when a
complaint comprises both cognizable and non-cognizable
offences, the investigating agency i.e., the police are required
to treat all the offences cognizable and proceed to investigate
the case and to submit the charge sheet for all the offences,
cognizable or non-cognizable both, provided it is found by the
police during investigation that offences alleged prima facie
have been committed.
19. In the instant case also, after recording statements
of several of the witnesses, including the one mentioned
above, the Investigating Officer has rightly come to a
conclusion that there are ample materials to file charge sheet
against Mamatha R., (original accused No.3) also for the
offence punishable under Section 494 of IPC. Hence, the
impugned order of the learned Sessions Judge's on the said
point appears to be erroneous.
20. With regard to other offences, including the one
punishable under Section 302 and Section 120-B of IPC are
concerned, no doubt, none of the charge sheet witnesses
appears to have alleged any direct overt act against accused
No.3 - Mamatha R., however, the very case of the
complainant and his family members is that the property that
has come to the share of the deceased K.R.Manjunatha in a
family partition was made in favour of his daughter
Bhandavya as a guardian. The conclusion of the
Investigating Officer in Column No.17 of the charge sheet is
also that the accused in order to take advantage of the
property made in favour of Bhandavya, the daughter of the
deceased, had not only refused to give custody of said
Bhandavya to the deceased, but, also decided to eliminate
him so as to retain the property with them. It is attributing
with the said mens rea on the part of the accused, the charge
sheet has included Section 120-B of IPC also with other
A perusal of the charge sheet papers go to show that
CW-30 - Smt.Lakshmi, the mother of the deceased, has in
her statement before the Investigating Officer accuses the
involvement of her daughter-in-law i.e., Mamatha R.,
(accused No.3) in the murder of her son K.R.Manjunatha.
21. CW-31 - Nataraja, who is shown to be a friend of
deceased K.R.Manjunatha, is shown to have stated before the
Investigating Officer that deceased K.R.Manjunatha was
telling him about his marital life with Mamatha R., and
second marriage of said Mamatha R., with accused No.1 and
also he (deceased) demanding the custody of their child
Bhandavya to him, however, accused No.3 Mamatha R.,
refusing to hand over the custody of the child to the
deceased. He has stated that he believes that accused No.3
Mamatha R., and accused No.1 might have killed the
As observed above, CW-8 Sukanya is shown to have
stated before the Investigating Officer that accused No.1 and
accused No.3 were residing as her neighbour as husband and
wife. Even the elder brother of Mamatha R., (accused No.3)
has also spoken about they performing the second marriage
of Mamatha R., with accused No.1.
22. In the supplementary charge sheet filed by the
police, several of the charge sheet witnesses, including CW-4
Papanna, CW-5 Thimmegowda and CW-6 Shivanna, are
shown to have stated about the marital dispute between the
deceased and accused No.3. Among them, CW-4 Papanna
and CW-5 Thimmegowda are also shown to have conducted a
panchayat and advised the parties.
23. The Investigating Officer is said to have collected
several of the incriminating materials, including motor
vehicles used in the commission of the crime, rope of a larger
length, a plastic rope, a knife with iron handle, blood stained
car-mat, cell phones, DVRs etc., According to the learned
High Court Government Pleader, several of those articles
have got relationship with accused No.3-Mamatha R., and
it is only during the course of the trial, the conspiracy
between the accused can be established by the prosecution.
I do not find any reason to reject the said argument of
learned High Court Government Pleader, particularly in the
instant case when Mamatha R., (accused No.3) was said to
be the wife of deceased K.R.Manjunatha and subsequently
married to accused No.1 - Y.D.Manjunatha and accused No.1
and accused No.3 are said to have been refusing to give the
custody of daughter of the deceased to him only with an
intention to retain the property said to be standing in favour
of Bhandavya, daughter of deceased and accused No.3.
There are all the reasons to believe that there are materials
to subject Mamatha R., (accused No.3) also for trial for all
the alleged offences in the charge sheet.
24. In Hem Chand –vs- State of Jharkhand, reported in
(2008) 5 SCC 113, the Hon'ble Apex Court at Para-9 of its
judgment was pleased to observe that, it is beyond any
doubt or dispute that at the stage of framing of charge, the
Court will not weigh the evidence. The stage for appreciating
the evidence for the purpose of arriving at a conclusion as to
whether the prosecution was able to bring home the charge
against the accused or not would arise only after all the
evidence is brought on record at the trial.
In the instant case also, since it is observed above that
there are sufficient materials to proceed with the trial against
Mamatha R., (original accused No.3), the Sessions Judge's
Court was at error in allowing her application filed under
Section 227 of Cr.P.C. and discharging her from the alleged
offences. As such, the said order deserves to be set aside
and her application filed under Section 227 of Cr.P.C.
deserved to be dismissed.
25. CW-2 K.C.Ramu, the father of the deceased has
filed Criminal Petition No.711/2018, seeking a direction for
any other investigating authority to investigate the case in
Crime No.400/2015, which is the subject matter in
S.C.No.20/2017. As submitted by learned counsel for the
petitioner, the only reason for seeking a fresh investigation is
for the limited purpose of recording the evidence of
Bhandavya, the girl child of the deceased and accused No.3.
Even according to the petitioner, the said daughter is aged
only about six years. When according to the prosecution, the
alleged murder has taken at a place which was away from
the home of accused No.3, where the child was residing, the
said child cannot be expected to speak about the murder of
her father.
Regarding the alleged conspiracy, it is not the case of
the prosecution that in the presence of said girl Bhandavya,
the conspiracy was hatched by the accused. Further more,
the said child was only of about 6 years in her age. For all
these reasons, the investigation cannot be found fault with
and also for the reason of non-recording the statement of
Bhandavya, the girl child of the deceased. As such, I do not
find any reason for allowing Criminal Petition No.711/2008.
26. The matter was proceeded with in the Sessions
Judge’s Court in S.C.No.20/2017, where six witnesses from
PW-1 to PW-6 were examined on behalf of the prosecution.
After recording their evidence, the prosecution has filed an
application under Section 319 of Cr.P.C. seeking inclusion of
discharged accused No.3 in the case and to take cognizance
against her. The Sessions Judge’s Court ordered for issuance
of summons to accused No.3- Mamatha R., on 22.08.2019.
It is challenging the said order, said Mamatha R., has filed
27. Learned counsel for the petitioner for Smt.Mamatha
R., in the said petition in his argument made a submission
that, in case if this Court allows Criminal Revision Petition
No.206/2018, then, his Criminal Petition No.7026/2019
becomes infructuous.
Learned High Court Government Pleader for the
respondent-State also submitted that if Criminal Revision
Petition No.206/2018 is allowed, his application filed under
Section 319 of Cr.P.C. in the Sessions Judge’s Court becomes
infructuous. In view of the fact that the impugned order in
Criminal Revision Petition No.206/2018 is now found to be
perverse and deserves to be set aside, the said Criminal
Revision Petition No.206/2018 deserves to be allowed.
Consequently, the Criminal Petition No.7026/2019 proves to
be devoid of merit and deserves to be dismissed.
28. Accordingly, I proceed to pass the following order:
[i] Criminal Revision Petition No.206/2018 is
allowed. The order dated 04.08.2017, passed by
the learned V Addl. District & Sessions Judge,
Mandya, in S.C.No.20/2017, in so far as
discharging respondent No.2 (accused No.3)
Smt.Mamatha R., for the offences punishable
under Sections 302, 493, 494, 496, 120-B, 201
read with Section 34 of IPC, stands set aside.
[ii] The application filed by said accused No.3
Smt.Mamatha R., under Section 227 of Cr.P.C.
stands dismissed.
[iii] The Criminal Petition No.711/2018 and
Criminal Petition No.7026/2019 stands
dismissed.
In view of disposal of the main petitions, the pending
IA.No.3/2018 in Crl.RP 206/2018 does not survive for
Registry to transmit a copy of this order to both the trial
Court as also the Sessions Judge’s Court along with their
respective records forthwith. | The Karnataka High Court has set aside an order of the Sessions Court discharging a woman accused of bigamy and hatching a conspiracy with her second husband to murder her first husband. A single judge bench of Justice Dr. HB Prabhakara Sastry observed that there is sufficient material to proceed with the trial against Mamatha R., who allegedly killed her first husband to retain...
The Karnataka High Court has set aside an order of the Sessions Court discharging a woman accused of bigamy and hatching a conspiracy with her second husband to murder her first husband.
A single judge bench of Justice Dr. HB Prabhakara Sastry observed that there is sufficient material to proceed with the trial against Mamatha R., who allegedly killed her first husband to retain a property devolved upon their minor daughter in family partition.
"It is beyond any doubt or dispute that at the stage of framing of charge, the Court will not weigh the evidence. The stage for appreciating the evidence for the purpose of arriving at a conclusion as to whether the prosecution was able to bring home the charge against the accused or not would arise only after all the evidence is brought on record at the trial."
A charge-sheet was filed against Mamatha for offences punishable under Sections 302 (Murder), 493, 494, 496 (Bigamy), 120-B (Criminal conspiracy) and 201 (Causing disappearance of evidence of offence) read with Section 34 of IPC.
She was said to have married one Manjunath YD, also an accused, during the period her first husband (now deceased) went missing. However, when the first husband returned after a span of some 1.5 years and demanded custody of their daughter, the duo allegedly hatched a conspiracy to cause his death.
The trial Court had allowed Mamatha's application for discharge on the ground that investigation was improper, the offence of Bigamy (non-cognizable) cannot be investigated by the Police and no tangible material has been brought on record to show any criminal conspiracy.
Findings
Upon a perusal of the chargesheet and witnesses statements recorded by the police, the Court noted that prosecution had produced ample material to prosecute prosecute Mamatha for the offence punishable under Section 494 IPC.
"When a complaint comprises both cognizable and non-cognizable offences, the investigating agency i.e., the police are required to treat all the offences cognizable and proceed to investigate the case and to submit the charge sheet for all the offences, cognizable or non-cognizable both, provided it is found by the police during investigation that offences alleged prima facie have been committed."
So far as the offence of Murder is concerned, the Court observed that even though none of the chargesheet witnesses alleged any direct overt act against Mamatha, however, the allegations w.r.t. retention of partition property attributes "mens rea" and thus, it is only during the course of the trial that the conspiracy, if any, between the accused can be established by the prosecution.
"Since it is observed above that there are sufficient materials to proceed with the trial against Mamatha R., (original accused No.3), the Sessions Judge's Court was at error in allowing her application filed under Section 227 of Cr.P.C. and discharging her from the alleged offences. As such, the said order deserves to be set aside and her application filed under Section 227 of Cr.P.C. deserved to be dismissed."
Case Title: K.C.Ramu @ Ramanna v. State of Karnataka
Case No: CRIMINAL REVISION PETITION No.206 OF 2018 C/w. CRIMINAL PETITION No.711 OF 2018 AND CRIMINAL PETITION No.7026 OF 2019.
Date of Order: 10TH DAY OF AUGUST 2022
Appearance: Advocate Ashok B.Patil for petitioner; HCGP K.Nageshwarappa, for R-1; Advocate C.N.Raju, for R-2 |
Civil Appeal No. 5415 of 1985 etc.
From the Order dated 7.1.1985 of the Presiding officer, Labour Court, Amritsar in Application No. 547 of 1979.
619 Jitendera Sharma, P. Gaur, D.K. Garg, K.K. Mohan and R.C. Kaushik for the Appellants.
S.C. Mohanta, Mahabir Singh and C.M. Nayar for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
Each of these appeals is by special leave and is directed against the Award made in different disputes by the Labour Court.
The common justification for ignoring the High Court and approaching this Court directly by way of special leave, according to Mr. Jitendra Sharma for each of the appellants, is that there are a couple of Full Bench decisions of the Punjab and Haryana High Court holding that the Irrigation Department of the State Government of Punjab is not an 'industry ' and no useful purpose would have been served by routing the matters through the High Court as the Full Bench decision would have been followed.
The appellant in Civil Appeal No. 5415 of 1985 was a Foreman in the Mechanical Construction Division under the Irrigation Department and had applied under Section 33 C 2 of the , (hereinafter referred to as 'the ') before the Labour Court for recovery of arrears of annual increments.
The appellant in Civil Appeal No. 2168 of 1987 was a T. Mate in the P.W.D. Drainage Division.
When his services were terminated without complying with the requirements of the law, he challenged the termination before the Labour Court.
The appellant in the remaining appeal was an operator in the Mechanical Division, Rohtak under the Irrigation Department of Haryana State.
His services were terminated and thereupon he approached the Labour Court disputing the validity of the said order.
In each of these cases challenge was advanced by the governmental authority to the maintainability of the application before the Labour Court on the ground that the employer was not an 'industry ' and the did not apply.
The Labour Court by different orders made in each of these cases upheld the objection and declined relief to the employees.
The common question in these appeals, therefore, is as to whether the Irrigation Department of either Government is an 'industry '.
The definition of 'industry ' occurring in Section 2 of the has now to be seen.
The defines 'industry ' in Section 2(J) to mean: 620 "any business, trade undertaking, manufacturer or calling of employers and includes any calling service, employment, handicraft, or industrial occupation or avocation of workmen.
" By Section 2(c) of the Amending (46 of 1982), this definition has been amended but the amendment has not yet been brought into force.
The amended definition of "industry" is as follows: "Industry means any systematic activity carried on by co operation between an employer and his workmen (whether such workmen are employed by such employer directly or by or through any agency, including a contractor) for the production, supply or distribution of goods or services with a view to satisfy human wants or wishes (not being wants or wishes which are merely spiritual or religious in nature), whether or not, (i) any capital has been invested for the purpose of carrying on such activity; or (ii) such activity is carried on with a motive to make any gain or profit, and includes (a) any activity of the Dock Labour Board established under Section 5A of the ; (b) any activity relating to the promotion of sales or business or both carried on by an establishment, but does not include (1) any agricultural operation except where such agricultural operation is carried on in an integrated manner with any other activity (being any such activity as is referred to in the foregoing provisions of this clause) and such other activity is the predominant one, Explanation: For the purposes of this sub clause, 'agricultural operation ' does not include any activity carried on in a 621 plantation as defined in clause (f) of Section 2 of the ; or (2) hospitals or dispensaries; or (3) educational, scientific, research or training institutions; or (4) institutions owned or managed by organisation wholly or substantially engaged in any charitable, social or philanthropic service; or (5) khadi or village industries; or (6) any activity of the Government relatable to the sovereign functions of the Government including all the activities carried on by the departments of the Central Government dealing with defence research, atomic energy and space; or (7) any domestic service; or (8) any activity, being a profession practised by an individual or body of individuals, if the number of persons employed by the individual or body of individuals in relation to such profession is less than ten; or (9) any activity, being an activity carried on by a cooperative society or a club or any other like body of individuals, if the number of persons employed by the cooperative society, club or other like body of individuals in relation to such activity is less than ten;" Since the amended statutory definition is not yet in force, the parent definition and judicial pronouncements have to be referred to for finding the law.
The field is covered by pronouncements of this Court and it is not necessary to go beyond these precedents.
In case the Irrigation Department is accepted to be "industry", there is no dispute that each of the appellants would be a "workman" and each of the claims would constitute an "industrial dispute" as defined in Section 2(s) and (k) respectively.
A five Judge Bench in D.N. Banerji vs P.R. Mukherjee & Ors., 622 ; considered the scope of the definition of industry.
Chandrashekhara Aiyer, J. speaking for the Court stated: "It is therefore incumbent on us to ascertain what the statute means by industry and industrial dispute, leaving aside the original meaning attributed to the words in a simpler state of society, when we had only one employer perhaps, doing a particular trade or carrying on a particular business with the help of his own tools, material and skill and employing a few workmen in the process of production or manufacture, and when such disputes that occurred did not go behind individual levels into acute fights between rival organisations of workmen and employers; and when large scale strikes and lock outs throwing society into chaos and confusion were practically unknown.
Legislation had to keep pace with the march of times and to provide for new situations.
Social evolution is a process of constant growth, and the State cannot afford to stand still without taking adequate measures by means of legislation to solve large and momentous problems that arise in the industrial field from day to day almost .
When our came to be passed, labour disputes had already assumed big proportions, and there were clashes between workmen and employers in several instances.
We can assume therefore that it was to meet such a situation that the was enacted, and it is consequently necessary to give the terms employed in the referring to such disputes as wide an import as reasonably possible.
Do the definitions of industry, industrial dispute and workman take in the extended significance or exclude it? Though the word undertaking in the definition of industry is wedged in between business and trade on the one hand and manufacture on the other, and though therefore it might mean only a business or trade undertaking, still it must be remembered that if that were so, there was no need to use the word separately from business or trade.
The wider import is attracted even more clearly when we look at the latter part of the definition which refers to calling, service, employment or industrial occupation or avocation of workmen.
Undertaking in the first part of the definition and industrial occupation or avocation in the second part obviously mean much more than what is ordinarily understood by trade or business.
The definition was apparently intended to 623 include within its scope what might not strictly be called a trade or business venture.
" The ratio in Mukherjee 's case was relied upon by a three Judge Bench in State of Bombay & Ors.
vs The Hospital Mazdoor Sabha & Ors., ; and Gajendragadkar, J. who spoke for the Bench observed: "There is another point which cannot be ignored.
Section 2(j) does not define industry in the usual manner by prescribing what it means: the first clause of the definition gives the statutory meaning of industry and the second clause deliberately refers to several other items of industry and brings them in the definition in an inclusive way.
It is obvious that the words used in an inclusive definition denote extension and cannot be treated as restricted in any sense.
Where we are dealing with an inclusive definition it would be inappropriate to put a restrictive interpretation upon terms of wider denotation." "Besides, it would be relevant to point out that too much reliance cannot be placed on what are described as the essential attributes or features of trade or business as conventionally understood.
The conventional meaning attributed to the words trade and business has lost some of its validity for the purpose of industrial adjudication.
Industrial adjudication has necessarily to be aware of the current of socio economic thought around; it must recognise that in the modern welfare State healthy industrial relations are a matter of paramount importance and its essential function is to assist the State by helping a solution of industrial disputes which constitute a distinct and persistent phenomenon of modern industrialised States in attempting to solve industrial disputes, industrial adjudication does not and should not adopt a doctrinaire approach.
lt must evolve some working principles and should generally avoid formulating or adopting abstract generalisations.
Nevertheless it can 't harp back to old age notions about the relations between employer and the employee or to the doctrine of laissez faire which then governed the regulation of the said relations.
That is why, we think, in construing the wide words used in section 2(j) it would be erroneous to attach undue importance to the attributes 624 associated with business or trade in the popular mind in days gone by.
" The Bench thereafter adverted to the negative side and stated: "It would be possible to exclude some activities from section 2(j) without any difficulty.
Negatively stated the activities of the Government which can be properly described as regal or sovereign activities are outside the scope of section 2(j).
These are functions which a constitutional government can and must undertake for governance and which no private citizen can undertake.
This position is not in dispute.
An attempt is, however, made by the appellant to suggest that in view of the Directive Principles enunciated in of the Constitution and in view of the ideal of a welfare state which has been placed before the country, Governments, both at the level of States as well as at the Centre undertake several welfare activities; and the argument is that the field of governmental or regal activities which are excluded from the operation of section 2(j) should be extended to cover other activities undertaken by the Governments in pursuit of their welfare policies.
In our opinion, this contention cannot be accepted.
The activities which do not fall within section 2(j) and which are described as governmental or regal or sovereign have been pithily described by Lord Watson as 'the primary and inalienable functions of a constitutional Government '; and it is only these activities that are outside the scope of section 2(j).
It sounds incongruous and self contradictory to suggest that activities undertaken by the Government in the interests of socio economic progress of the country as beneficial measures should be exempted from the operation of the which in substance is a very important beneficial measure itself.
" Applying the stated principles, this Court in that case held that the J.J. Group of Hospitals came within the definition of industry.
Within a couple of weeks from the Hospital Mazdoor Sabha 's case (supra), the same Bench in the case of Corporation of the City of Nagpur vs Its Employees, ; , this time Subba Rao, J., as he then was, speaking for the Court examined the self same question.
Before the Court were available two precedents Mukherjee 's case 625 (supra) and Hospital Mazdoor Sabha 's case (supra) and it was stated: "Before considering the positive aspects of the definition, what is not an industry may be considered.
However wide the definition of industry may be, it cannot include the regal or soveriegn functions of State.
This is the agreed basis of the arguments at the Bar though the learned counsel differed on the ambit of such functions.
While the learned counsel for the Corporation would like to enlarge the scope of these functions so as to comprehend all the welfare activities of a modern State, the learned counsel for the respondents would seek to confine them to what are aptly termed the primary and inalienable functions of a constitutional Government " The Court analysed the activities of the various departments of the Corporation and observed: "We can also visualize different situations.
A particular activity of a municipality may be covered by the definition of industry.
If the financial and administrative departments are slowly in charge of that activity, there can be no difficulty in treating those two departments also as part of the industry.
But there may be cases where the said two departments may not only be in charge of a particular activity or service covered by the definition of industry but also in charge of other activity or activities falling outside the definition of industry.
In such cases a working rule may be evolved to advance social justice consistent with the principles of equity.
In such cases the solution to the problem depends upon the answer to the question whether such a department is primarily and predominantly concerned with industrial activity or incidentally connected therewith. " "The result of the discussion may be summarised thus: (1) the definition of industry in the is very comprehensive.
It is in two parts one part defines it from the stand point of the employer and the other from the stand point of the employee.
If an activity falls under either part of the definition it will be an industry within the meaning of the .
(2) The history of industrial disputes and the legislation recognises the basic concept that the activity shall be an orga 626 nised one and not that which pertains to private or personal A employment.
(3) The regal functions prescribed as primary and inalienable functions of State though statutorily delegated to a corporation or necessarily excluded from the purview of the definition.
Such regal functions shall be confined to legislative power, administration of law and judicial power.
(4) If a service rendered by an individual or a private person would be an industry, it would equally be an industry in the hands of a corporation.
(5) If a service rendered by a corporation is an industry, the employees in the department connected with that service, whether financial, administrative or executive, would be entitled to the benefits of the .
(6) If a department of a municipality discharges many functions some pertaining to industry as defined in the and the other non industrial activities, the predominant functions of the department shall be the criterion for the purposes of the .
" Applying these tests, this Court examined as to whether the various departments of the Corporation came within the definition or not.
Then came the decision of a Constitution Bench in the case of Management of Safdarjung Hospital vs Kuldip Singh Sethi; , where Chief Justice Hidayatullah spoke for the Court.
Referring to the definition of industry.
the learned Chief Justice observed: "This definition is in two parts.
The first part says that it means any business, trade, undertaking, manufacture or calling of employers and then goes on to say that includes any calling, service, employment, handicraft or industrial occupation or avocation of workmen . ". "Therefore, an industry is to be found when the employers are carrying on any business, trade, undertaking, manufacture or calling of employers.
If they are not, there is no industry as such.
What is meant by these expressions was discussed in a large number of cases which have been considered elaborately in the Gymkhana Club case [1968] 1 SCR 742.
The conclusions in that case may be stated: 'Primarily, therefore, industrial disputes occur when operation undertaken rests upon cooperation between employer and employees with a view to production and distribution of material goods, in other 627 words, wealth, but they may arise also in cases where the cooperation is to produce material services.
The normal cases are those in which the production or distribution is of material goods or wealth and they will fall within the expressions trade, business or manufacture. ' " In Safdarjung Hospital 's case the decision in Hospital Mazdoor Sabha case was analysed and the Court came to the following conclusion: "In our judgment, the Hospital Mazdoor Sabha 's case took the extreme view of the matter which was not justified.
" Then came the case of Bangalore Water Supply and Sewerage Board vs A. Rajappa & Ors ; This time the same point was before a seven Judge Bench of this Court.
This judgment undertood a review of the entire law.
Krishna Iyer, J. spoke for himself, Bhagwati and Desai, JJ.
In paragraph 139 of the judgment it was stated: "Banerjee (supra) amplified by Corporation of Nagpur (supra), in effect met with its waterloo in Safdarjung (supra).
But in this latter case two voices could be herard and subsequent rulings zigzagged and conflicted precisely because of this built in ambivalence.
It behoves us, therefore, hopefully to abolish blurred edges, illumine penumbral areas and overrule what we regard as wrong.
Hesistency, half tones and hunting with the hounds and running with the hare can claim heavy penalty in the shape of industrial confusion, adjudicatory quandary and administrative perplexity at a time when the nation is striving to promote employment through diverse strategies which need, for their smooth fulfilment, less stress and distress, more mutual understanding and trust based on a dynamic rule of law which speaks clearly, firmly and humanely.
If the salt of law lose its savour of progressive certainty where with small it be stalled? So we proceed to formulate the principles, deducible from our discussion which are decisive, positively and negatively, of the identity of industry under the .
We speak, not exhaustively, but to the extent covered by the debate at the bar and, to that extent, authoritatively, until overruled by a larger bench or superseded by the legislative branch.
" 628 "Industry as defined in section 2(j) and explained in Banerjee (supra) has a wide import.
(a) Where (i) systematic activity, (ii) organised by cooperation between employer and employee (the direct and substantial element is chimerical) (iii) for the production and/or distribution of goods and services calculated to satisfy human wants and wishes (not spiritual or religious but inclusive of material things or services geared to celestial bliss e.g. making, on a large scale prasad or food), prima facie, there is an industry in that enterprise.
(b) Absence of profit motive or gainful objective is irrelevant, be the venture in the public, joint, private or other sector (c) The true focus is functional and the decisive test is the nature of the activity with special emphasis on the employer employee relations.
(d) If the organisation is a trade or business it does not cease to be one because of philanthropy animating the undertaking.
Although section 2(j) uses words of the widest amplitude in its two limbs, their meaning cannot be magnified to over reach itself.
Undertaking must suffer a contextual and associational shrinkage as explained in Banerjee and in this judgment; so also, service, calling and the like.
This yields the inference that all organized activities possessing the triple elements in I, although not trade or business, may still be industry provided the nature of the activity, viz. the employer employee basis, bears resemblance to what we find in trade or business.
This takes into the fold of industry undertakings, callings and services, adventures 'analogous to the carrying on of the trade or business '.
All features, other than the methodology of carrying on the activity viz. in organizing the cooperation between employer and employee, may be dissimilar.
It does not matter, if on the employment terms there is analogy.
629 Application of these guidelines should not stop short of their logical reach by invocation of creeds, cults or inner sense of incongruity or outer sense of motivation for or resultant of the economic operations.
The ideology of the being industrial peace, regulation and resolution of industrial disputes between employer and workmen, the range of this statutory ideology must inform the reach of the statutory definition.
Nothing less, nothing more.
(a) The consequences are (i) professions, (ii) clubs, (iii) educational institutions, (h) cooperatives, (v) research institutes, (vi) charitable projects and (vii) other kindred adventures, if they fulfil the triple tests listed in I cannot be exempted from the scope of section 2(j).
(b) A restricted category of professions, clubs, cooperatives and even gurukulas and little research labs, may qualify for exemption if, in simple ventures, substantial and, going by the dominant nature criterion, substantively, no employees are entertained but in minimal matters, marginal employees are hired without destroying the non employee character of the unit.
(c) If, in a pious or altruistic mission many employ themselves, free or for small honoraria or like return, mainly drawn by sharing in the purpose or case, such as lawyers volunteering to run a free legal services clinic or doctors serving in their spare hours in a free medical centre or ashramites working at the bidding of the holiness, divinity or like central personality, and the services are supplied free or at nominal cost and those who serve are not engaged for remuneration or on the basis of master and servant relationship, then, the institution is not an industry even if stray servants, manual or technical, are hired.
Such eleemosynary or like undertakings alone are exempt not other generosity, compassion, developmental passion or project.
The dominant nature test: (a) Where a complex of activities, some of which qualify for exemption others not, involves employees on the total undertaking, some of whom are not workmen as in 630 the University of Delhi vs
Ram Nath; , or A some departments are not productive of goods and services if isolated, even then, the predominant nature of the services and the integrated nature of the departments as explained in the Corporation of Nagpur, will be the true test.
The whole undertaking will be industry although those who are not workmen by definition may not benefit by the status.
(b) Notwithstanding the previous clauses, sovereign functions, strictly understood, (alone) qualify for exemption, not the welfare activities or economic adventures undertaken by government or statutory bodies.
(c) Even in departments discharging sovereign functions, if there are units which are industries and they are substantially severable, then they can be considered to come within section 2(j).
(d) Constitutional and competently enacted legislative provisions may well remove from the scope of the categories which otherwise may be covered thereby.
" Beg, CJ., wrote a separate judgment and prefaced it by saying: "I am in general agreement with the line of thinking adopted and the conclusions reached by my learned brother Krishna Iyer.
" In paragraph 149 of the judgment, the learned Chief Justice observed: "In his heroic efforts, my learned brother Krishna Iyer, if I may say so with great respect, has not discarded the tests of industry formulated in the past.
Indeed, he has actually restored the tests laid down by this Court in D.N. Banerjee 's case, and, after that, in Corporation of the City of Nagpur vs Its Employees, and State of Bombay vs The Hospital Mazdoor Sabha to their pristine glory.
" The learned Chief Justice again stated: "Each of us is likely to have a subjective notion about industry.
For objectivity, we have to look first to the words 631 used in the statutory provision defining industry in an attempt to find the meaning.
If that meaning is clear, we need proceed no further.
But, the trouble here is that the words found there do not yield a meaning so readily.
They refer to what employers or workers may do as parts of their ordinary avocation or business in life . " "Thus, in order to draw the circle of industry, to use the expression of my learned brother Iyer, we do not find even the term workman illuminating.
The definition only enables us to see that certain classes of persons employed in the service of the State are excluded from the purview of industrial dispute which the seeks to provide for in the interests of industrial peace and harmony between the employers and employees so that the welfare of the nation is secured.
The result is that we have then to turn to the preamble to find the object of the itself, to the legislative history of the , and to the socio economic ethos and aspirations and needs of the times in which the was passed.
" After quoting the definition of industry, the learned Chief Justice proceeded to say in paragraph 158 of the judgment: "It seems to me that the definition was not meant to provide more than a guide.
It raises doubts as to what could be meant by the calling of employers even if business, trade, undertaking or manufacture could be found capable of being more clearly delineated.
It is clear that there is no mention here of any profit motive.
Obviously, the work manufacture of employers could not be interpreted literally.
It merely means a process of manufacture in which the employers may be engaged.
It is, however, evident that the term employer necessarily postulates employees without whom there can be no employers . " In paragraph 165 of the judgment, the learned Chief Justice added: G "I have contended myself with a very brief and hurried outline of my line of thinking partly because I am in agreement with the conclusions of my learned brother Krishna Iyer and I also endorse his reasoning almost wholly, but even more because the opinion I have dictated 632 just now must be given today if I have to deliver it at all.
From tomorrow I cease to have any authority as a Judge to deliver it.
Therefore, I have really no time to discuss the large number of cases cited before us, including those what are known as sovereign functions.
" Chandrachud, J., as he then was, on behalf of himself Jaswant Singh and Tulzapurkar, JJ. added a note by saying: "We are in respectful agreement with the view expressed by Krishna Iyer, J. that the appeal should be dismissed.
We will give our reasons later indicating the area of concurrence and divergence, (underlining is ours) if any, on the various points in controversy on which our learned Brother has dwelt." On 7th of April, the reasonings were delivered by Chief Justice Chandrachud for himself as by then Jaswant Singh, J. delivered a separate set of reasonings for himself and Tulzapurkar, J.
The learned Chief Justice (because by then he had assumed that office) referred to several authorities and tests and in paragraph 181 of the judgment stated: ". .
These refinements are, with respect, are not warranted by the words of the definition, apart from the consideration that in practice they make the application of the definition to concrete cases dependent upon a factual assessment so highly subjective as to lead to confusion and uncertainty in the understanding of the true legal position.
Granting that the language of the definition is so wide that some limitation ought to be read into it, one must step at a point beyond which the definition will skid into a domain too rarefied to be realistic.
Whether the cooperation between the employer and the employee is the proximate cause of the ultimate product and bears direct nexus with it is a test which is almost impossible of application with any degree of assurance or certitude.
It will be as much true to say that the solicitor 's assistant, managing clerk, librarian and the typist do not directly contribute to the intellectual end product which is a creation of his personal professional skill as that, without their active assistance and cooperation it will be impossible for him to function effectively.
The unhappy state of affairs in which the law is marooned will 633 continue to baffle the skilled professional and his A employees alike as also the Judge who has to perform the unenviable task of sitting in judgment over the directness of the cooperation between the employer and the employee, until such time as the legislature decides to manifest its intention by the use of clear and indubious language.
Besides the fact that this Court has so held in National Union of Commercial Employees vs M.R. Meher, lndustrial Tribunal, Bombay, [1962] Supp.
3 SCR 157 the legislature will find a plausible case for exempting the learned and liberal professions of lawyers, solicitors, doctors, engineers, chartered accountants and the like from the operation of industrial laws.
But until that happens, I consider that in the present state of the law it is difficult by judicial interpretation to create exemptions in favour of any particular class.
" The remaining two learned Judges added their separate opinion and in the concluding part stated: "In view of the difficulty experienced by all of us in defining the true denotation of the term industry and divergence of opinion in regard thereto as has been the case with this Bench also we think, it is high time that the Legislature steps in with a comprehensive bill to clear up the fog and remove the doubts and set at rest once for all the controversy which crops up from time to time in relation to the meaning of the aforesaid term rendering it necessary for larger Benches of this Court to be constituted which are driven to the necessity of evolving a working formula to cover particular cases.
" The ultimate position available from the seven Judge Bench decision, therefore, is that while three learned Judges delivered their view through Krishna Iyer, J., Beg CJ spoke somewhat differently, yet agreed with the conclusion reached by Krishna Iyer J. Chandrachud, CJ.
also agreed with the majority while the remaining two learned Judges looked for legislative clarification to meet the situation.
Perhaps keeping in view the observations of the learned Judges constituting the seven Judge Bench, the definition of industry as occurring in section 2(j) of the was amended by 46 of 1982.
Though almost six years have elapsed since the amendment came on to 634 the Statute Book, it has not been enforced yet.
Bare Acts and Commentaries on the have, however, brought in the new definition by deleting the old one with a note that the new provision has yet to come into force.
This situation has further added to the confusion.
It is now time to turn to the facts of the case.
Judicial notice can be taken of the position that Haryana and Punjab originally constituted one State and Haryana has become separate from 1966.
The Irrigation Department of the erstwhile Punjab State was discharging the State 's obligations created under the .
The Administration Report of the year 1981 82 of the Public Works Department, Irrigation Branch, which really deals with the irrigation department has been produced before us with notice thereof to the appellants ' learned counsel.
We may extract a part of the Report: "The irrigation department which was set up more than 100 years ago is mainly responsible to provide water supplies for the substance and development of agriculture in the 30.36 hectare cultivable area of the State covered by canal command.
This requires harnessing of the surface and grounds water resources of the State and their equitable distribution to the beneficiaries, within Canal Command area.
This task involves construction of multipurposes, major, medium and minor irrigation projects, maintenance of net work of channels, regulation of canal supplies, enforcement of water laws etc.
and levying of crop wise water supply rates on the irrigators for recovery through the state Revenue Department.
Extension, improvement and modernisation of the age old canal system is also continued to be done simultaneously by the Department.
Besides the irrigation the department also provides water for drinking purposes to villages and towns in the State.
The canal water supplies are also being made available for the industrial development in areas where no other source for water supplies exists".
"The State of Punjab was reorganised in the year 1966 and a number of disputes on the sharing of water/powers with successor States croped up.
The issues regarding apportionment of Ravi Beas Waters over the preparation uses falling to the share of erstwhile Punjab, 635 apportionment of rights and liabilities of Bhakra Nangal Project, retention of control of Irrigation Head Works of Harike, Ropar and Ferozepur by Punjab, restoration of Bhakra Nangal Project and Beas Project to Punjab etc.
are also dealt with by the Department." "The Irrigation Department is also responsible to provide protection to the valuable irrigated lands and public property from flooding, river action and water logging.
This requires construction of flood protection, river training, drainage and anti waterlogging works and their maintenance. " "The Department has also to plan ahead for irrigation development in the State for which purpose proposal of irrigation schemes are investigated, surveyed and prepared in advance.
Feasibility of irrigation schemes for hydropower generation from the existing and proposed irrigation schemes is also investigated by the Department and their execution undertaken.
The execution of new irrigation schemes, extention and improvement of existing schemes requires preparation of detailed designs of channels and their necessary works.
This work is also done by the Department." "During designs, execution and maintenance of the irrigation, flood control and drainage projects, field problems arise for the solution of which research, model studies and laboratory experiments have to be conducted.
The Department undertakes this work as well." "Having shared with the neighbouring States almost entire water resources of the rivers flowing through the Punjab water has now become a constraint to keep the tempo of the development of irrigated agriculture in the State.
For this purpose it has not only become necessary to evaluate the total water resources of the State but also plan conjunctive use of surface and ground water for the optimum development of this precious resource.
Further it has become necessary to conserve irrigation supplies and propogate their use economically through innovative water distribution system like sprinklers, drip system, etc.
" 636 "The Irrigation Department plans and execute reclamation of salt or thur affected areas within cannal command.
Measurements of discharges in the Ravi, the Beas and the Sutlej desides the beings and drains in the State is also carried out by the irrigation department.
These observations which are being made for the last over 60 years have provided basic data to the design of multipurposes Bhakhra Nangal, Beas and Beas Sutlej Link projects which have transformed economies not only of the State of Punjab but also of the State of Haryana and Rajasthan.
The fact extracted from the Report apparently give a picture of the activities of the Irrigation Department.
There is a full Bench judgment of the Punjab and Haryana High Court in the case of Om Prakash vs M/s Executive Engineers, SYL, Kurukshetra & Ors.[1984] Current L.J. 349 where the question that came up for consideration before the full Bench was thus stated; whether the irrigation department of the State (of Punjab) comes within the ambit of industry in section 2(j) of the Industrial disputes Act, 1947? The Court took into account the judgment of another full Bench decision of the same Court in the case of State of Punjab vs Kuldip Singh & Anr., where the question for consideration was whether the Public Works Department of the State Government was an industry.
In Om Prakash 's case (supra), the full Bench barely took note of the decision of this Court in Bangalore Water Supply case (supra) but did not deal with it.
It also took into account the position of the Irrigation Department in Punjab keeping in the background the provisions of the of 1873 and stated: "The irrigation department is a branch of the public works department.
It provides a reasonably assured source of water for crops through the net work of canals.
The irrigation department also carries out schemes and takes measures for protecting crops from the menace of floods during the times of abnormal rainfall.
In the olden times when there was no canals, agriculture was very limited and cultivators depended solely on rainfall.
By the passage of time it was thought necessary to build irrigation and drain age works for the purpose of providing better water facilities to the farmers on whom depends the economy of this country.
These works could only be built by the Government.
637 The western Jamuna canal which serves the State of A Haryana was the first major irrigation work which was initially constructed by Feroze Shah Tuglaq in 1351.
It was reconditioned by Akbar in 1568 and was extended in 1626 in the reign of Shahjahan.
The canal was constructed in a reasonably serviceable form by the British during 1817 1823.
Then the Upper Bari doab canal, Sirhind canal, Lower Chinah canal and Lower Jhelum canal etc., were constructed.
Thereafter, many other projects have come up and the ones which need mention are Bhakra Nangal project with its network of Bhakra System and the Beas project.
All these projects have been carried out by the state at the state expense.
It is understandable that such projects could not at all be undertaken by private enterpreneurs or could be left in their hands for execution.
Further, water is a state subject as per entry 17 in List II of Seventh Schedule of the Constitution.
Even before coming into force of the Constitution, water of rivers and streams was considered to be belonging to the State . .
Thus it would be evident that the water has at all times been a State subject and the State can exercise full executive powers in all matters connected with the water.
The State supplies water to the farmers through the network of canals.
It is correct that water rates are realised from the farmers but they are not realised for the cost of the water.
In other words, the State does not sell water to the farmers.
As contended justifiably by the learned Advocate General, the water charges are not even sufficient to meet the establishment and maintenance expenses of the department.
Moreover, the water rates have never been realised on the basis of the quantity of the water supplied.
These rates are dependant upon the class of crops raised by the farmers and have been fixed in terms of per acre.
It may be noted that rates for crops, such as wheat, sugarcane, cotton, rice are higher than the other crops such as gram, oil seeds, bajra and maize etc.
In other words, the water charges have been linked on the principle of bearability, that is, paying capacity of the farmer dependant upon his income from the kind of crop raised by him.
The water is supplied on the basis of the holding of each farmer in terms of cultivable commanded area, that is, on the basis of uniform and equitable yardstick.
Again, the water charges are remitted when the crops are damaged by natural 638 calamities such as locust, hailstroms, floods or drought etc.
Further, the construction of canals, dams, barrages, and other projects cannot be entrusted to some private hands.
The construction of these works involves compulsory acquisition of land which can also be done by the State.
Merely this fact that water is supplied by charging certain rates cannot warrant a finding that the state is indulging in trade or business activity or an activity which is analogous to trade, business or economic venture.
From what has been stated above, there can be gainsaying that the functions of the irrigation department cannot at all be left to private enterprise.
The facts which weighed in holding that the construction and maintenance of national and state highways by the State does not come within the ambit of industry in Kuldip Singh 's case (supra) are present so far as the irrigation department is concerned .
In this view of the matter, I hold that the functions of the irrigation departments are essentially government functions and that these functions neither partake of the nature of trade and business nor are even remotely analogous thereto and that this department does not come within the ambit of industry as defined in section 2(j) of the Act." Mr. Shalma for the appellants placed before us some cases of different High Courts in support of his stand that the Irrigation Department should be considered as industry.
The first of these cases is that of Madhya Pradesh Irrigation Karamchari Sangh vs State of Madhya Pradesh & Anr., where the Madhya Pradesh High Court found the Chambal Hydel Irrigation Project to be an industry.
The facts of that case reveal that the Project therein was a multipurpose one which was used for generating electricity as also for irrigation purposes.
On the facts found therein, the High Court came to the conclusion that it came within the definition under section 2(j) of the Act.
In State of Rajasthan vs The Industrial Tribunal, Rajasthan, the question for consideration before the Rajasthan High Court was whether the Survey and Investigation Division of Irrigation Department was an industry.
In paragraph 26, the learned Judge came to the conclusion by saying: "In view of the aforesaid decisions of the Supreme Court, I find it difficult to hold that the activities of the 639 State Government by organising its Survey and Investigation.
Division in the Irrigation Department through which the State Government rendered services in the matter of supplying water by constructing canals and dams does not fall within the ambit of the sovereign or regal functions of the State.
Such service to the people at large, in my opinion, comes within the ambit of the expression industry as defined in section 2(i) of the Act.
" The finding runs contrary to the conclusion.
If in the opinion of the learned Judge, it was difficult to hold that the activities did not fall within the ambit of the sovereign or regal functions, then the conclusion should have been different.
In Dinesh Shanna & Ors.
vs State of Bihar & Ors.
, [1983] Bihar L.J.R. 207, a Division Bench of the Patna High Court was considering if the Public Health Engineering Department of the State of Bihar was an industry.
In paragraph 8 of the judgment, reliance was placed on the Bangalore Water Supply case (supra) and the Nagpur Corporation case (supra) and it was held that the said department of the State Government of Bihar was an industry.
In Chief Engineer, Irrigation, Orissa vs Harihar Patra & Anr., a Division Bench of the orissa High Court was considering whether the Salandi Irrigation Project in that State was an industry.
The High Court relied upon the earlier full Bench decision of its own Court and some of the decisions of this Court which we have referred to above, and came to hold that the irrigation project was an industry.
The Administrative Report of the facts found by the High Court in the instant case have attempted to draw out certain special features.
The legal position has been indicated in the earlier part of our judgment.
On the tests, as already laid down in the judgments, we do not think these facts found in this case can take out the Irrigation Department outside the purview of the definition of 'industry '.
We have already referred to the Dominant Nature test evolved by Krishna Iyer, J.
The main functions of the Irrigation Department where subjected to the Dominant Nature test clearly come within the ambit of industry.
We have not been able to gather as to why even six years after the amendment has been brought to the definition of industry in section 2(j) of the Act the same has not been brought into force.
This Court on more than one occasion has indicated that the position should be clarified by an appropriate amendment and when keeping in view the opinion of this Court, the law was sought to be amended, it is 640 appropriate that the same should be brought into force as such or with such further alterations as may be considered necessary, and the legislative view of the matter is made known and the confusion in the field is cleared up.
For the reasons we have indicated above, these appeals succeed.
We make it clear that in the event of the definition of industry being changed either by enforcement of the new definition of industry or by any other legislative change, it would always be open to the aggrieved Irrigation Department to raise the issue again and the present decision would not stand in the way of such an attempt in view of the altered situation.
The appeals are allowed without costs.
S.L. Appeals allowed. | Each of these appeals by special leave was directed against the award made by the Labour Court.
The appellant in Civil Appeal No. 5415 of 1985, a foreman in the Mechanical Construction Division under the Irrigation Department, had filed an application under Section 33C 2 of the ( 'the ') before the Labour Court for the recovery of arrears of annual increments.
The appellant in Civil Appeal No. 2168 of 1987 was a T. Mate in the P.W.D. Drainage Division.
When his services were terminated without complying with the requirements of the law, he challenged the termination before the Labour Court.
The appellant in the remaining appeal was an operator in the Mechanical Division, under the Irrigation Department of Haryana State.
His services were terminated and thereupon he approached the Labour Court challenging the order of termination.
In each of these cases, challenge was advanced by the Governmental authority to the maintainability of the application before the Labour Court on the ground that the employer was not an 'industry ' and the did not apply.
The Labour Court upheld the objection and declined relief to the appellants.
Allowing the appeals with observations, the Court, ^ HELD: The common question in these appeals was whether the Irrigation Department was an 'industry '.
The definition of 'industry ' is given in Section 2(j) of the .
By Section 2(c) of the Amending (46 of 1982) this definition had been amended but the amendment has not 617 yet been brought into force.
Since the amended statutory definition was not yet in force, the parent definition and the judicial pronouncements thereon had to be referred to for finding the law.
The field is covered by pronouncements of this Court and is not necessary to go beyond the precedents such as decisions in D.N. Banerji vs P.R. Mukherjee & Ors., ; ; State of Bombay and Ors.
vs The Hospital Mazdoor Sabha & Ors ; ; Corporation of the City of Nagpur vs Its Employees, ; ; Management of Safdarjang Hospital vs Kuldip Singh Sethi, ; ; and the decision of a seven Judge Bench in Bangalore Water Supply and Sewerage Board vs A. Rajappa & Ors., ; [621F G] In case the Irrigation Department was accepted to be an "industry", there was no dispute that each of the appellants would be a 'workman ' and each of the claims would constitute an "industrial dispute" as defined in Section 2(s) and (k) of the , respectively .
[621G] Judicial notice could be taken of the position that Haryana and Punjab originally constituted one State and Haryana became separate from 1966.
The Irrigation Department of the erstwhile Punjab State was discharging the State 's obligations created under the .
The Administration Report of the year 1981 82 of the Public Works Department, Irrigation Branch, which really deals with the Irrigation Department, was produced before the Court.
[634B C] Counsel for the appellants placed before the Court some cases of different High Courts in support of his stand that the Irrigation Department should be considered as an industry, i.e. Madhya Pradesh Irrigation Karamchari Sangh vs State of Madhya Pradesh & Anr., ; State of Rajasthan vs The Industrial Tribunal, Rajasthan, ; Dinesh Sharma & Ors.
vs State of Bihar & Ors.
, [1983] Bihar L.J.R. 207 and Chief Engineer, Irrigations Orissa vs Harihar Patra & Anr., [638E F] On the tests, as already laid down in the judgments, the Court did not think the facts found in this case could take the Irrigation Department outside the purview of the definition of 'Industry '.
The main functions of the Irrigation Department where subjected to the Dominant Nature test evolved by Krishna Iyer J. in Bangalore Water Supply and Sewerage Board vs A. Rajappa & Ors., ; , decided by a seven Judges Bench, clearly come within the ambit of industry.
618 Perhaps keeping in view the observations of the learned Judges of the seven Judges Bench, the definition of industry as occurring in section 2(j) of the was amended by 46 of 1982.
However, the Court could not gather as to why even six years after the amendment to the definition of industry in section 2(j) of the came on the statute book, the same had not been brought into force.
The court on more than one occasion had indicated that the position should be clarified by an appropriate amendment, and, when keeping in view the opinion of this Court, the law was sought to be amended, it was appropriate that the same should be brought into force as such or with such further alterations as might be considered necessary and the legislative view of the matter, made known and the confusion in the field, cleared up.
Bare Acts and Commentaries on the had brought in the new definition, deleting the old one with a note that the new provision had yet to come into force.
This situation had further added to the confusion.
[639F H; 640A B] The appeals succeeded.
It was made clear that in the event of the definition of industry being changed either by enforcement of the new definition of industry or by any other legislative change, it would always be open to the aggrieved Irrigation Department to raise the issue again and the present decision would not stand in the way of such an attempt in view of the altered situation.
[640B C] D.N. Banerji vs P.R. Mukherjee & Ors., ; ; State of Bombay & Ors.
vs The Hospital Mazdoor Sabha & Ors., ; Corporation of the City of Nagpur vs Its Employees, ; ; Management of Safdarjang Hospital vs Kuldip Singh Sethi, ; ; Bangalore Water Supply and Sewerage Board vs A. Rajappa & Ors.
, ; ; om Prakash vs M/s Executive Engineer, SYL, Kurukshetra & Ors.
[1984] Current L.J. 349; State of Punjab vs Kuldip Singh & Anr., ; Madhya Pradesh Irrigation Karamchari Sangh vs State of Madhya Pradesh & Anr., ; State of Rajasthan vs The Industrial Tribunal, Rajasthan, ; Dinesh Sharrna & Ors.
vs State of Bihar & Ors.
, [1983] Bihar L.J.R. 207 and Chief Engineer, lrrigation, Orissa vs Harihar Patra & Anr., , referred to. |
vil Appeals Nos.
1166 72 of 1985 etc.
From the Judgment and Order dated 24.1.85 of the Punjab & Haryana High Court in C.W.P. Nos.
698 to 703 and 733 of 1984.
Raja Ram Aggarwal, B. Sen, Dr. Devi Paul, D.S. Tawatia, Soli J. Sorabjee, Kapil Sibal and S.K. Dholakia, A.N. Haka sar, D.N. Misra, Mukul Mudgal, Ravinder Narain, P.K. Ram, section Sukumaran, section Ganesh, Mahabir Singh, H.S. Anand.
R. Karania wala, Mrs. Manik Karanjawala, A.S. Bhasme and A.M. Khanwil kar for the Appearing Parties.
The following Judgments of the Court were delivered: SABYASACHI MUKHARJI, J. Except civil appeals Nos.
416263 of 1988, in these appeals along with the special leave petitions and the writ petition, we are concerned with Sections 9(1) and 24(3) as well as the penalty proceedings initiated under Section 50 of the Haryana General Sales Tax Act, 1974 (hereinafter referred to as 'the Act ').
So far as civil appeals Nos. 4 162 63 of 1988 are concerned, these involve the scope, effect and validity of Section 13AA of the Bombay Sales 523 Tax Act.
1959 (hereinafter referred to as 'the Bombay Act ') as introduced by the Maharashtra Act No. XXVIII of 1982.
It will, therefore, be desirable first to deal with the ques tion of the Act, and then with the provisions of the Bombay Act as mentioned hereinbefore.
The appellant/petitioner Goodyear India Ltd., was engaged at all relevant times, inter alia, in the manufac ture and sale of automobile tyres and tubes.
It manufactured the said tyres and tubes at its factory at Ballabhgarh in the district of Faridabad in the State of Haryana.
For the said manufacturing activity the appellant had, from time to time, to purchase various kinds of raw materials both within the State and outside the State.
It is stated that about 7 to 10% of the total needs of raw materials on an all India basis were locally procured by the appellant from Haryana itself.
The raw materials purchased in Haryana were: (i) pigments (partly), (ii) chemicals (partly), (iii) wires (partly), (iv) carbon black (partly), (v) rubber (partly), and (vi) fabric (partly).
The rest of the requirements were imported from other States.
The appellant had its depots at different places in the State of Haryana as well as in other States.
After manufacturing the said tyres and tubes, about 10 to 12% of the total manufactured products used to be sold in the State of Haryana either locally or in the course of inter State trade & commerce or in the course of export outside the country and also sold locally against Declara tion Form No. ST 15.
It was stated that at the relevant time the local sales including sales in the course of inter State trade & commerce and in the course of export from the State of Haryana was about 30 to 35%.
The appellant was a regis tered dealer both under the Haryana Act and the , and had been submitting its quarterly returns and paying the sales tax in accordance with law, according to the appellant.
In 1979, the assessing authority, Farida bad, imposed upon the appellant the purchase tax under Sec tion 9 of the Act for the assessment year 1973 74 and subse quently for the years 1974 75 and 1975 76 as well on the despatches made by the appellant on the manufactured goods to its various depots outside the State.
Subsequently, the relevant revenue authorities sought to impose purchase tax under Section 9(1) of the Act and imposed purchase tax on despatches of manufactured goods, namely, tyres and tubes, to its various depots in other States.
This led to the filing of various writ petitions in the Punjab & Haryana High Court by the appellant/petitioner.
In respect of the assessment years 1976 77 to 1979 80.
these questions were considered by the Punjab and Haryana High Court, and the writ.
petitions were decided in favour of the appellant on December 524 4, 1982.
The said decision being the decision in Goodyear India Ltd. vs The State of Haryana & Anr.
is reported in 53 STC 163.
The Division Bench of the High Court in the said decision held that both on principle and precedent, a mere despatch of goods out of the State by a dealer to his own branch while retaining both title and possession thereof, does not come within the ambit of the phrase "disposes of the manufactured goods in any manner otherwise than by way of sale", as employed in section 9(1)(a)(ii) of the Act.
The High Court further held that the decision of this Court in The State of Tamil Nadu vs M.K. Kandaswami, [1975] 36 STC 191 was no warrant for the proposition that a mere despatch of goods was within the ambit of disposing them of.
The High Court also distinguished the decision of this Court in Ganesh Prasad Dixit vs Commissioner of Sales Tax, M.P., [1969] 24 STC 343, and held that Notification No. S.O. 119/H.A. 20/73/Ss. 9 & 15/74 dated July 19, 1974 issued under Section 9 (prior to its amendment by Act No. 11 of 1979) was ultra vires of Section 9 of the Act.
It was held that whereas the section provided only for the levy of purchase tax on the disposal of manufactured goods, the impugned notification by making a mere despatch of goods to the dealers themselves taxable, in essence, legislates and imposes a substantive tax which it obviously could not.
It was held that this was contrary to and in conflict with the provisions of section 9.
The High Court referred to the relevant portion of unamended Section 9 of the Act with which it was confronted and the notification.
In order to appreciate the said decision and the position, it will be appropriate to set out the said provisions, namely, the unamended provisions of Section 9 as well as the notifica tion: "9.
Where a dealer liable to pay tax under this Act purchases goods other than those specified in Schedule B from any source in the State and (a) uses them in the State in the manufacture of, (i) goods specified in Schedule B or (ii) any other goods and disposes of the manufactured goods in any manner otherwise than by way of sale whether within the state or in the course of inter State trade or commerce or within the meaning of sub section (1) of Section 5 of the , in the course of export out of the territory of India, 525 (b) exports them, in the circumstances in which no tax is pay able under any other provision of this Act, there shall be levied, subject to the provi sions of section 17, a tax on the purchase of such goods at such rate as may be notified under section 15.
" The relevant notification was as follows: "Notification No. S.O. 119/H. A. 20/73/Ss. 9 and 15/74 dated the 19th July, 1974.
In exercise of the powers conferred by section 9 and subsection (1) of section 15 of the Haryana General Sales Tax Act, 1973, the Governor of Haryana hereby directs that the rate of tax payable by all dealers in respect of the purchases of goods other than goods specified in Schedules C and D or goods liable to tax at the first stage notified as such under section 18 of the said Act, if used by them for purposes other than those for which such goods were sold to them shall be the rate of tax leviable on the sale of such goods: Provided that where any such dealer, instead of using such goods for the purpose for which they were sold to him, despatches such goods or goods manufactured therefrom at any time for consumption or sale outside the State of Haryana to his branch or commission agent or any other person on his behalf in any other State and such branch, commission agent or other person is a registered dealer in that State and produces a certificate from the assessing authority of that State or produces his own affidavit and the affidavit of the consignee of such goods duly attested by a Magistrate or Oath Commissioner or Notary Public in the form appended to this notifica tion to the effect that the goods in question have been so despatched and received and entered in the account books of the consignee, the rate of tax on such goods shall be three paise in a rupee on the purchase value of the goods so despatched." The High Court, as stated before, referred to section 9 and held that the expression 'disposes of ' was not basically a term of legal art and, therefore, it was proper and neces sary to first turn to its ordinary 526 meaning in order to determine whether a mere despatch of goods by a dealer to himself would connote 'disposal of ' such goods by him.
The High Court referred to the dictionary meaning of 'disposes of ' in Webster 's Third New Internation al Dictionary.
Reference was also made to 27 Corpus Juris Secundum, P. 345, and ultimately it came to the conclusion that the phrase 'disposes of ' or 'disposal ' cannot be possi bly equated with the mere despatch of goods by a dealer to himself.
After referring to the relevant provisions with which this Court was concerned in Kandaswami 's case (supra), the High Court held that that case was no warrant for con struing the expression 'despatch ' as synonymous to 'dispos al '.
On the other hand, the court held that the decision of this Court emphasises that the expression 'disposal ' of goods is separate and distinct from despatch thereof.
Ac cording to the High Court, the same position was applicable to Ganesh Prasad Dixit 's case (supra), and in those circum stances held that the term 'disposes of ' cannot be synony mous with 'disposal ', and once that is held then the notifi cation mentioned above travelled far beyond what is provided in Section 9 of the Act, while the said provision provided only for levy of purchase tax on disposal of manufactured goods.
The High Court observed as follows: "Once it is held as above, the impugned Notification No. S.O. 119/H.A. 20/73/Ss. 9 and 15/74 dated 19th July, 1974 (annexure P 2), plainly travels far beyond the parent section 9 of the Act.
Whereas the said provision provided only for the levy of a purchase tax on the disposal of manufactured goods, the notification by making a mere despatch of goods to the dealers themselves taxable in essence, legislates and imposes a substantive tax which it obviously cannot.
Indeed, its terms run contrary to and are in direct conflict with the provisions of section 9 itself.
There is thus no option but to hold that the notification, which is a composite one, is ultra vires of section 9 of the Act and is hereby struck down.
" The High Court also noted that though the challenged assessment orders were appealable, however, as the challenge was to the very validity of the notification which was obviously beyond the scope of the appellate authority, the writ petitions were entertainable as the assessment was based on the notification which was frontally challenged.
As a result, the High Court quashed the notification and set aside the assessment orders.
The said decision is under challenge in appeal to this Court.
527 It may be mentioned that sub section (1) of section 9 of the Act had been introduced by the Haryana Act, 55 of 1976 in the Act.
After the aforesaid decision of the High Court, the Haryana Legislature intervened and enacted the Haryana General Sales Tax (Amendment & Validation) Act, 1983 by which Section 9 of the principal Act was amended as follows: "Amendment of Section 9 of Haryana Act 20 of 1973 in Section 9 of the principal Act, (a) in sub section (1) , (i) for clause (b), the following clause shall be substituted and shall be deemed to have been substituted for the period commencing from the 27th day of May, 1971, and ending with the 8th day of April, 1979, namely: "(b) purchases goods, other than those speci fied in Schedule B, from any source in the State and uses them in the State in the manu facture of any other goods and either disposes of the manufactured goods to a place outside the State in any manner otherwise than by way of sale in the course of inter State trade or commerce or in the course of export outside the territory of India within the meaning of Sub section (1) of Section 5 of the ; or", (ii) after clause (b), the following clause shall be deemed to have been inserted with effect from the 9th day of April, 1979, name ly: "(bb) purchases goods, other than those speci fied in Schedule B except milk, from any source in the State and uses them in the State in the manufacture of any other goods and either disposes of the manufactured goods in any manner otherwise than by way of sale in the State or despatches the manufactured goods to a place outside the State in any manner otherwise than by way of Sale in the course of inter State trade or commerce or in the course of export outside the territory of India within the meaning of Sub Section (1) of Section 5 of the ; or"; 528 {iii) the following proviso shall be added, namely: "Provided that no tax shall be leviable under this section on scientific goods and guar gum, manufactured in the state and sold by him in the course of export outside the territory of India within the meaning of Sub section (3) of Section . of the ."; and (b) in sub section (3), the words "other than Railway premises" shah be omitted." After the aforesaid amendment the writ petitions were filed in the High Court by Bata India Ltd. In the meantime, the petitioner Company also filed writ petitions for the assessment years 1973 74 to 1975 76 and 1980 81 in the High Court challenging the assessment.
The High Court decided these matters on August 2, 1983.
The said decision Bata India Ltd. vs The State of Haryana & Anr. has been reported in 1983 Vol.
54 STC 226.
The High Court held that "mere despatch of goods to a place outside the State in any manner otherwise than by way of sale in the course of inter State trade or commerce" is synonymous with or is in any case included within the ambit of the consignment of goods either to the person making it or to any other person in the course of inter State trade or commerce as specified in Article 269(1)(h) and Entry No. 92 B of List 1 of the 7th Schedule to the Constitution.
Hence, the levy of sales or purchase tax on such a despatch or consignment of goods and matters ancillary or subsidiary thereto, will be within the exclu sive legislative competence of Parliament to the total exclusion of the State Legislature.
Therefore, section 9(1)(b) of the Haryana General Sales Tax Act, 1973, as amended by the Haryana General Sales Tax (Amendment & Vali dation) Act, 1983, insofar as it levies a purchase tax on the consignment of goods outside the State in the course of inter State trade or commerce is beyond the legislative competence of the State of Haryana and is void and inopera tive.
It was held that the retrospective validation of the notification of 19th July, 1974 referred to hereinbefore, and the consequential validation of all actions taken there under were liable to be quashed.
The High Court further held that mere manufacture and consignment of goods outside the State to himself by a manufacturer is not sale or disposal thereof with the result that it will not be within the ambit of Entry No. 54 of List II of the 7th Schedule to the Con stitution.
Consequently, it was held that irrespective of the 46th Amendment, an attempt to tax the mere consignment or despatch of manufactured goods outside the State in the course of inter State trade 529 or commerce will not come within the ambit of Entry No. 54 of List II of the 7th Schedule, and consequently of the competence of the respective State Legislatures.
Even before the 46th Amendment, the mere consignment of goods in the course of inter State trade or commerce was beyond the scope of the said Entry and thus not within the legislative compe tence of the States and was entirely within the parliamen tary field of.
legislation by .virtue of Article 248 and the residuary Entry No. 97 of List I. The High Court was of the view that neither the original purchase of goods nor the manufacture thereof into the end product by itself attracts purchase tax and consequently are not even remotely the taxable events.
What directly and pristinely attracts the tax and can be truly labelled as the taxing event under section 9(1)(b) of the Act is the three fold exigency of; (i) disposal of the manufactured goods in any manner otherwise than by way of sale in the State; or (ii) despatch of the manufactured goods to a place outside the State in any manner otherwise than by way of sale in the course of inter State trade or commerce, or (iii) disposal or despatch of the manufactured goods in the course of export outside the territory of India.
It was these three exigencies only which were the taxable events in the amended section 9(1)(b) of the Act.
Consequently, in a Statute where the taxable event is the despatch or consignment of goods outside the State, the same would come squarely within the wide sweep of Entry No. 92B of List I of the Constitution, and thus excludes taxation by the States.
The High Court was of the view that section 9 of the Act must be strictly construed as it was a charging section.
If the charging section travels beyond the legislative Entry and thereby transgresses the legislative field, then the same cannot possibly be sustained.
The constitutional changes brought by the 46th Amendment in article 269 of the Constitution read with the insertion of Entry No. 92B in the Union List, leave no doubt that the legislative arena of tax on the consignment of goods (whether to one 's ownself or to any other person) in the course of inter State trade or commerce and all ancillary or complementary or consequential matters, are now declared to be exclusively reserved for parliamentary legislation and any intrusion into this field by the State Legislatures would be barred.
In my opinion, the High Court correctly noted in the said decision that the provisions of constitutional change have to be construed, and such problems should not be viewed in narrow isolationism but on a much wider.
spectrum and the principles laid down in Heydon 's case 530 ; are instructive.
Hence, in a situation of this nature, it was just and proper to see what was the position before the 46th Amendment of the Constitution, and find out what was the mischief that was sought to be reme died and then discover the true rationale for such a remedy.
In Black Clawson International Ltd. vs Papierwerke Waldhof Aschaffenburg Ag.
, ; , Lord Reid observed as follows: "One must first read the words in the context of the Act as a whole, but one is entitled to go beyond that.
The general rule in construing any document is that one should put oneself 'in the shoes ' of the maker or makers and take into account relevant facts known to them when the document was made.
The same must apply to Acts of Parliament subject to one qualifica tion.
An Act is addressed to all the lieges and it would seem wrong to take into account anything that was not public knowledge at the time.
That may be common knowledge at the time or it may be some published information which Parliament can be presumed to have had in mind.
It has always been said to be impor tant to consider the mischief which the Act was apparently intended to remedy.
The word 'mischief ' is traditional.
I would expand it in this way.
In addition to reading the Act you look at the facts presumed to be known to Parliament when the Bill which became the Act in question was before it, and you consider whether there is disclosed some unsatisfactory state of affairs which Parliament can properly be supposed to have intended to remedy by the Act . " The state of affairs that the Parliament has sought to remedy by the 46th Amendment of the Constitution, was that prior to the promulgation each State attempted to subject the same transaction to tax on the nexus doctrine under its sales tax laws.
Consequently, on the basis of one or the other element of the territorial nexus, the same transaction had to suffer tax in different States with the inevitable hardship to trade and consumers in the same or different States.
The framers of the Constitution being fully aware of the problems sought to check the same by a somewhat complex constitutional scheme and by imposing restrictions on the States ' power with regard to levy tax on the sale or pur chase of goods under article 286.
The High Court in the judg ment referred to hereinbefore, mentioned these factors.
It is in 531 this background that article 269 was amended and clause (3) was added to it.
The effect, inter alia, is that the power to levy tax on the sale or purchase of goods is now referable to the legislative power vested in the States by virtue of Entry No. 54 in List II of the 7th Schedule.
However, this legislative authority of the States is restricted by three limitations contained in Articles 286(1)(a), 286(1)(b) & 286(3) of the Constitution.
It may be mentioned that Parlia ment by the 6th Amendment to the Constitution, enacted the , with the object to formulate principles for determining when a sale or purchase of goods takes place in the course of inter State trade or commerce or outside a State or in the course of import into or export from India, to provide for the levy, collection and distri bution of taxes on sales of goods in the course of inter State trade or commerce and to declare certain goods to be of special importance and specify the restrictions and conditions to which State laws imposing taxes on the sale or purchase of such goods shall be subject.
In this connection, the High Court referred to the various propositions as mentioned by the Law Commission in its 61st Report rendered in May, 1974.
It is not necessary to set out the same in detail.
It was in the aforesaid historical background that the High Court construed the provisions in question and came to the conclusion that a plain reading of these would leave little manner of doubt that the legislative power to tax consignment transfers of goods from one branch of an insti tution to another branch thereof outside the State and all matters incidental, ancillary or complementary thereto were then declared to be vested in the Union of India to the total exclusion of the States.
The High Court referred to the observations of this Court in Khyerbari Tea Co. Ltd. vs State of Assam; , ; Navinchandra Mafatlal vs The Commissioner of Income tax, Bombay City, [1955] SCR 829 and Waverly Jute Mills Co. Ltd. vs Raymon & Co. (1) Pvt. Ltd.; , , and concluded that Entry 92B enabled the Union of India not only to tax the consignment of goods in the strict sense but also embraced all ancillary and complementary areas as well to the exclusion of the State Legislature therefrom.
In the aforesaid light the High Court construed section 9(1)(b) of the Haryana Act, 1983.
Analy sing the provisions in detail it observed that Section 9 of the Act was a charging section for the levy of purchase tax.
It imposed liability for payment of purchase tax, therefore, it should be distinguished from the machinery section.
The High Court examined the real nature of the business outside the State and found that there was merely a change in the physical situs of the goods without any change in the basic incidents of ownership and control.
Therefore, in its true nature a mere despatch of goods outside the State to another branch of the original institution is not and never 532 can be the equivalent of a sale either as a term of art in the existing sales tax legislation and not remotely so in common parlance, and construing section 9(1)(b) of the Act, the High Court was of the view that the real taxing event is the despatch of the manufactured goods to a place outside the, State in any manner otherwise than by way of sale in the course of inter State trade or commerce.
The High Court found that there was no distinction between the despatch as defined in the said amended section and the consignment of goods by the manufacturer to himself or any other person in the course of inter State trade or commerce, and referred to the meanings of the expressions 'despatch ' and 'consign ', which are similar and almost interchangeable when used in specific commercial sense.
The High Court referred to Webster 's New International Diction ary, Shorter Oxford English Dictionary and also to Random House dictionary for their meanings.
On construction, the High Court came to the conclusion that the amended provi sions of section 9(1)(b) of the Act attempt to levy an identical tax in the garb of a levy on the despatch of manufactured goods to places outside the State of Haryana, and therefore intruded and trespassed into an arena exclu sively meant for taxation by the Union of India.
The High Court also viewed from another point of view, namely, who was liable as it was the consignment of goods which attract ed the liability of purchase tax and in pristine essence was the "taxable event" under section 9(1)(b) of the Act.
The High Court also analysed it from the point of view that under section 9(1)(b), where a dealer purchases goods for the express purpose of manufacturing other goods within the State, then in strict sense such purchase by itself did not attract any tax under the provisions.
Hence, the High Court set aside the amended provision so far as it sought to levy purchase tax on the consignment of goods outside the State in the course of inter State trade or commerce, consequently it also set aside the retrospective validation of the noti fication and the consequential validation of all actions taken thereunder.
Special leave petitions were filed in this Court against the said decision of the High Court.
These are special leave petitions Nos. 8397 to 8402 of 1983.
During the pendency of the special leave petitions, show cause notices were issued by the assessing authority in respect of the assessment years 1973 74 to 1980 81 (except for 1978 79 & 1979 80) and also for 1982 83 asking the petitioner to show cause why in addition to purchase tax, it should not be liable to penalty as well.
The petitioner Company again filed writ petitions in Punjab & Haryana High Court chal lenging the validity of those notices.
It appears that in the meantime, a Full Bench of the High Court decided the question again in the case of Des Raj Pushap 533 Kumar Gulati vs The State of Punjab & Anr.
This decision was rendered on January 24, 1985, and is reported in 58 STC 393.
The assessment years involved in all appeals are 1973 74 to 1982 83.
According to the Full Bench, the taxing event is the act of purchase and not the Act of despatch or con signment as held in Bata India Ltd., (supra).
In the prem ises, it was held that section 9(1)(b) as amended, was neither invalid nor ultra vires and overruled the decision of Bata India Ltd. The writ petitions filed were also dis missed.
The petitioner Company filed special leave petitions against the aforesaid judgment of the Punjab & Haryana High Court which were admitted in Civil Appeals Nos.
1166 72/85.
Goodyear India also filed writ petition No. 3834 of 1985 in respect of the assessment year 1981 82, as the notices for assessment and penalty were received after the decision of Punjab & Haryana High Court in Des Raj Pushap Kumar 's case (supra).
The said decision was passed in appeal against the decision of the said court in Goodyear India reported in 53 STC 163, number being 1514 (NT) of 1984.
All these questions are the subjectmatters of these appeals.
It is well settled that what is the taxable event or what necessitates taxation in an appropriate Statute, must be found out by construing the provisions.
The essential task is to find out what is the taxable event.
In what is considered to be indirect tax, there is a marked distinction between the consequence of manufacture and the consequence of sale.
It is well to remember that in construing the expres sions of the Constitution to judge whether the provisions like Section 9(1)(b) of the Act, are within the competence of the State Legislature, one must bear in mind that the Constitution is to be construed not in a narrow or pedantic sense.
Constitution is not to be construed as mere law but as the machinery by which laws are to be made.
It was ob served by Lord Wright in James vs Commonwealth of Australia, at 614, that the rules which apply to the interpretation of other Statutes, however, apply equally to the interpretation of a constitutional enactment.
In this context, Lord Wright referred to the observations of the Australian High Court in The Attorney General for the State of New South Wales vs The Brewery Employees Union etc.
; , where it was observed that the words of the Constitution must be interpreted on the same principles as any ordinary law, and these principles compel us to consider the nature and scope of the Act, and to remember that the Constitution is a mechanism under which laws 534 are to be made, and not a mere Act which declares what the law is to be.
Hence, such mechanism should be interpreted broadly, bearing in mind in appropriate cases, that the Supreme Court like ours is a nice balance of jurisdictions.
A Constitutional Court, one must bear in mind, will not strengthen, but only derogate from its position if it seeks to do anything but declare the law; but it may rightly reflect that a Constitution is a living and organic thing, which of all instruments has the greatest claim to be con strued broadly and liberally.
See the observations of Gwyer, C.J. in Re: Central Provinces & Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938, AIR 1939 PC 1 at 4).
Mr. Justice Sulaiman in his judgment at p. 22 of the report observed that the power to tax the sale of goods is quite distinct from any right to impose taxes on use or consump tion.
It cannot be exercised at the earlier stage of produc tion nor at the later stage of use or consumption, but only at the stage of sale, (emphasis supplied).
The essence of a tax on goods manufactured or produced is that the right to levy it accrues by virtue of their manufacture.
On the other hand, a duty on the sale of goods cannot be levied merely because goods have been manufactured or produced.
Nor can it be levied merely because the goods have been consumed or used or even destroyed.
The right to levy the duty would not at all come into existence before the time of the sale.
In this connection, reference may be made to the observations of Chief Justice Gwyer in The Province of Madras vs M/s. Boddu Paidanna & Sons, AIR 1942 FC 33.
Mr Raja Ram Agarwala, learned counsel for the appellant/assessees, contended before us that it is neces sary to find out or identify the taxable event.
If on a true and proper construction of the amended provisions of section 9(1)(b) it is the despatch or consignment of the goods that is the taxable event as contended by the petitioners and appellants, then the power is beyond the State 's competence.
If, on the other hand, it is the purchase of the goods that is the taxable event as held by the Full Bench of the High Court, then it will be within its competence.
The Full Bench in Des Raj Pushap Kumar 's case (supra) has relied on the background of the facts and the circumstances which necessi tated the introduction of the amendment.
Mr. Tewatia, learned counsel appearing for the State canvassed before us the historical perspective and stated that Haryana State came into being as a result of the Punjab State Reorganisation Act, 1966, therefore, part of the legislative history of the taxing Statute like any other Statute is shared by the Haryana State with the Punjab State, and as such it is proper to notice the concept of purchase tax as it 535 evolved in the State of Punjab.
Purchase tax was introduced in the State of Punjab for the first time by the East Punjab General Sales Tax (Amendment) Act, 1958.
Section 2(ff) was introduced for the first time to define the expression 'purchase '.
The definition of the term 'dealer ' was changed to include therein a purchaser of goods also.
The definition of the term 'taxable turnover ' was also altered.
Some deal ers who crushed oil seeds, were called upon to pay purchase tax on the raw material purchased by them on the ground that the raw material had not been subjected to a manufacturing process as the process of crushing oil seeds did not involve a process of manufacturing.
He referred to the fact that Punjab had originally exempted purchase tax on the purchase of raw material by the dealers if such raw material was to be used for the manufacture of goods for sale in Punjab and thus generate more revenue to the State as a result of the sales tax on such manufactured goods.
But when the dealers started avoiding this condition for sale in Punjab by var ious ingenious devices after having escaped the payment of purchase tax on the raw material purchased by them, the Legislature amended the Act and Punjab Act No. 18 of 1960 was brought on the statute book w.e.f. April 1, 1960.
Sec tion 2(ff) of the Act was amended and it provided that all the goods mentioned in Schedule C when purchased shall be exigible to purchase tax and thus the concession given to the manufacturers was withdrawn.
Explaining this background, Mr. Tewatia contended that section 9, sub section (i) of the Act envisages payment of tax at such rate as may be notified under Section 15 on the purchase of goods from any source within the State by a dealer liable to pay tax under the Act when such goods, not being Schedule 'B ' goods, were consumed either in producing Schedule 'B ' goods or when the manufac tured goods were other than Schedule 'B ' goods, the same not being sold within the State or in the course of inter State trade or commerce, or in the course of export outside the territory of India, or the purchased goods were exported outside the State.
After referring to the relevant provisions and the provisions of section 9(1)(b), Mr Tewatia emphasised that the contingency contemplated by "or despatches the manufac tured goods to a place outside the State in any manner otherwise than by way of sale in the course of inter State trade or commerce or in the course of export outside the territory of India within the meaning of section 5(1) of the ; or" as well as clause (c) of section 9(1) which encompasses "purchases goods, other than those specified in Schedule B, from any source in the State and exports them, in the circumstances in which no tax is payable under any other provision of 536 this Act, there shall be levied, subject to the provisions of Section 17, a tax on the purchase of such goods at such rate as may be notified under Section 15.", have to be judged for determining their validity in the true historical perspective as well as bearing in mind the remedial aspect of the provisions for the purpose of which these were enact ed.
Therefore, the main question is whether the tax envis aged by section 9(1) is a tax on purchase/sale of given goods or is a tax on the despatch/ consignment of such goods and that depends on, as to whether the taxable event is a purchase/sale of goods or despatch/consignment of such goods.
As mentioned hereinbefore, Mr. Tewatia laid great deal of emphasis on the background of the provisions of section 9(1).
He urged that the said section is both a taxing as well as a remedial provision, as would be evident from the scheme of the Act.
The legislative policy was to see that all goods except non taxable goods i.e. Schedule 'B ' goods, must yield tax/revenue to the State in the hands of a dealer, at one stage or the other, according to Mr. Tewatia.
He analysed the scheme and referred us to section 6 along with section 27 of the Act, and then submitted that the provision of section 9(1) along with subsection (3) of section 24 of the Act are both composite provisions, i.e. they are both charging provisions as also remedial provi sions.
According to him, such composite provisions of a fiscal Statute deserve to be interpreted properly and in such a manner as to further remedy and thus effectuate the legislative intent and suppress the mischief intended to be curbed.
Reliance was placed by the High Court as well as Mr. Tewatia before us on the observations of this Court in The State of Tamil Nadu vs Kandaswami, (supra), where at p. 198 of the Sales Tax Cases, this Court while dealing with sec tion 7A of the Tamil Nadu (Amendment) Act, observed that it was at once a charging as well as a remedial provision.
Its main object was to plug leakage and prevent evasion of tax.
In interpreting such a provision, a construction which would defeat its purpose and, in effect, obliterate it from the statute book, should be eschewed.
If more than one construc tion is possible, that which preserves its workability and efficacy is to be preferred to the one which would render it otiose or sterile, observed this Court in that case.
While bearing the aforesaid principle in mind, it has to be exam ined as to how far the application of this provision can be construed with the well settled principle of fiscal legisla tion and the terms and conditions of the present legisla tion.
It has been said and said on numerous occasions that fiscal laws must be strictly construed, words must say what these mean, nothing should be presumed or implied, these must say so.
The true test must always be the language used.
537 On behalf of the assessee, Mr. Rajaram Agarwala, howev er, further contended that the ratio of Kandaswami 's case (supra) to which Mr. Tewatia referred, must be understood in the light of the question involved in that case.
The said decision of this Court was concerned with the limited point as to whether the Madras High Court was right in observing "whether one could say that the sale which is exempted is liable to tax and then assume that because of exemption, the tax is not payable".
This Court held that the language of section 7A of the said Act was far from clear as to its intention and did not concern with the identification of the taxing event.
Furthermore, it has to be borne in mind, as emphasised by Mr. Agarwala, that if at all the taxing event was spelt out, it was on the assumption that the goods in question were generally taxable and these were to be put to tax under section 7A of the Tamil Nadu Act, if these came to be purchased without payment of tax and then sought to be dealt with in any manner as to escape payment of State sales/purchase tax within the State.
Mr. Tewatia drew our attention to the observations of this Court in Kandaswami 's case (supra) to prove that the observations in Malabar Fruit Products Co. vs The Sales Tax Officer, Palai, 30 STC 537, where these questions were decided by Justice Poti of the Kerala High Court, who spelt out that the taxing event was not the event of despatch but the event of purchase/sale of goods.
It has, however, to be borne in mind that the questions involved in Malabar Fruit Products ' case and Kandaswami 's case (supra) were not con cerned with the actual argument with which we are concerned in the instant matter.
It is well settled that a precedent is an authority only for what it actually decides and not for what may remotely or even logically follows from it.
See Quinn vs Leathem, ; and The State of Orissa vs Sudhansu Sekhar Misra & Ors., ; Therefore, the ratio of the said decision cannot be properly applied in construing the provisions of section 9(1)(b) in this case to determine what is the taxable event.
It was contended by Mr. Rajaram Agarwala that clause (b) of Section 9(1) dealt with non exempted goods purchased in the State, used in the manufacture of any goods whether exempted or not, but when despatched outside the State of Haryana i.e. by way of stock transfer consignment will attract the tax liability under this section, hence, the event of despatch or consignment is the immediate cause which attracts the tax liability under section 9.
The quali ty or the character of goods which should be liable to tax under section 9 in clause (1)(a) is the non exempted goods purchased in the State; while 538 under the first part of clause (b) the quality of goods liable to tax is the non exempted goods purchased in the State and under the second part of clause (b), the quality of goods must be non exempted goods purchased and manufac tured in the State, whether exempted or not in the State which is liable to tax on despatch outside Haryana; and under clause (c) the goods purchased in Haryana without undergoing any further change or use is the quality of goods liable to tax when exported.
The submission of the State is that the taxable event is the purchase of goods in Haryana while the obligation to pay is postponed on the fulfilment of certain conditions.
The further argument is that there is a general liability to purchase tax which the dealer avoids on furnishing a Decla ration in S.T. Form 15 as provided by section 24 at the time of purchase, wherein certain conditions are mentioned and when those conditions are not fulfilled, those revive.
It was further argued that the conditions are incorporated in section 9 of the Act.
For testing which of the contentions are nearer to find out the exact taxable event, certain indicias and illustrations may be seen.
Their analysis will indicate that there is no liability to pay sales tax under the Haryana Act on the purchaser.
It is admitted that on such sales the selling dealer is liable to pay sales tax.
On such purchases, the sale and purchase being the two sides of the same coin, no purchase tax is imposed under the Act.
This has been the accepted position by the State also for, while replying to the question of double taxation counsel for the State admitted that sales as well as purchase tax is to be imposeable under the scheme of the Act which are of two sides.
Hence, it was rightly urged by Mr. Rajaram Agar wala that the first contention for attracting the applica bility of section 9(i), "whether a dealer is liable to pay tax under this Act purchases goods", is missing when the section (1) talks of a dealer liable to pay tax under the Act, obviously it is with reference to his purchasing activ ity and if on that activity no purchase tax is payable, section 9(1) would not be applicable.
To accept the submissions advanced by Mr. Tewatia, assumptions and presumptions are to be made.
It is not permissible to do so in a fiscal provision.
See in this connection the observations of this Court in C.S.T.U.P. vs The Modi Sugar Mills Ltd.; , and Baidyanath Ayurved Bhawan (P) Ltd., Jhansi vs Excise Commissioner, U.P. & Ors.
; , at 592.
In that background it must be noted that section 9 of the Act nowhere makes a reference to section 24 or any declaration furnished by the purchasing dealer on the basis of which he was granted temporary exemp tion and thereby revival of 539 the original purchase tax on the breach of declaration as such.
Section 9 of the Act opens with the expression "where a dealer liable to pay tax under this Act" and not "whether a dealer has paid tax or has not paid tax".
The phrase 'liable to pay tax ' under the Act must relate to liability to pay sales tax on such purchases.
It is well settled that the main test for determining the taxable event is that on the happening of which the charge is affixed.
The realisation often is postponed to further date.
The quantification of the levy and the recov ery of tax is also postponed in some cases.
It is well settled that there are three stages in the imposition of tax.
There is the declaration of liability, that is the part of the Statute which 'determines what persons in respect of what property are liable.
Next, there is the assessment.
Liability does not depend on assessment, that exhypothesi has already been fixed.
But assessment particularises the exact sum which a person is liable to pay.
Lastly comes the method of recovery if the person taxed does not voluntarily pay.
Reference may be made to the observations of Lord Dunedin in Whitney vs Commissioner of Inland Revenue, at p. 52 and of the Federal Court in Chatturam & Ors.
vs C.I.T., Bihar, 15 ITR FC 302 at 308.
Taxable event is that which on its occurrence creates or attracts the liability to tax.
Such liability does not exist or accrue at any earlier or later point of time.
The identi fication of the subject matter of a tax is to be found in the charging section.
In this connection, one has to analyse the provisions of section 9(2)(b) as well as section 9(1)(b) and 9(1)(c).
Analysing the section, it appears to us that the two conditions specified, before the event of despatch outside the State as mentioned in section 9(1)(b), namely, (i) purchase of goods in the State and (ii) using them for the manufacture of any other goods in the State, are only descriptive of the goods liable to tax under Section 9(1)(b) in the event of despatch outside the State.
If the goods do not answer both the descriptions cumulatively, even though these are despatched outside the State of Haryana, the purchase of those goods would not be put to tax under sec tion 9(1)(b).
The focal point in the expression "goods, the sale or purchase of which is liable to tax under the Act", is the character and class of goods in relation to exigibil ity.
In this connection, reference may be made to the obser vations of this Court in Andhra Sugars Ltd. vs State of Andhra Pradesh, ; On a clear analysis of the said section, it appears that section 9(1)(b) has to be judged as and when liability accrues under that section.
The liability to pay tax under this section does not accrue on purchasing the goods simpliciter, but only when these are despatched or consigned out of 540 the State of Haryana.
In all these cases, it is necessary to find out the true nature of the tax.
Analysing the section, if one looks to the alleged purchase tax under section 9, one gets the conclusion that the section itself does not provide for imposition of the purchase tax on the transac tion of purchase of the taxable goods but when further the said taxable goods are used up and turned into independent taxable goods, losing its original identity, and thereafter when the manufactured goods are despatched outside the State of Haryana and only then tax is levied and liability to pay tax is created.
It is the cumulative effect of that event which occasions or causes the tax to be imposed, to draw a familiar analogy it is the last straw on the camel 's back.
In this connection, reference may be made to the obser vations of Justice Vivian Bose in The Tata Iron & Steel Co. Ltd. vs The State of Bihar, ; at 1381, where he observed as follows: "I would therefore reject the nexus theory in so far as it means that any one sale can have existence and entity simultaneously in many different places.
The States may tax the sale but may not disintegrate it, and, under the guise of taxing the sale in truth and in fact, tax its various elements, one its head and one its tail, one its entrails and one its limbs by a legislative fiction that deems that the whole is within its claws simply because, after tearing it apart, it finds a hand or a foot or a heart or a liver still quivering in its grasp.
Nexus, of course, there must be but nexus of the entire entity that is called a sale, wherever it is deemed to be situate.
Fiction again.
Of course, it is fiction, but it is a fiction as to situs imposed by the Constitution Act and by the Supreme Court that speaks for it in these matters and only one fiction, not a dozen little ones.
" It is, therefore, necessary in all cases to find out what is the essence of the duty which is attracted.
A taxa ble event is that which is closely related to imposition.
In the instant section, there is such close relationship only with despatch.
Therefore, the goods purchased are used in manufacture of new independent commodity and thereafter the said manufactured goods are despatched outside the State of Haryana.
In this series of transactions the original trans action is completely eclipsed or ceases to exist when the levy is imposed at the third stage of despatch of manufac ture.
In the instant case the levy has no direct connection with the transaction of purchase of raw materials, it has only a remote connection of lineage.
It may be indirectly and very 541 remotely connected with the transaction of the purchase of raw material wherein the present levy would lose its charac ter of purchase tax on the said transaction.
Mr. Rajaram Agarwala submitted that the measure of tax is with reference to the value of purchased goods in the State of Haryana.
As mentioned before, reference has been made to the decision of Kandaswami 's case (supra), where this Court dealt with section 7A of the Tamil Nadu Act, which was not identical but similar to section 9 of the Act.
There at p. 196 of the report, this Court observed as fol lows: ".
Difficulty in interpretation has been experienced only with regard to that part of the sub section which relates to ingredients (4) & (5).
The High Court has taken the view that the expression "goods, the sale or pur chase of which is liable to tax under this Act", and the phrase "purchases . in circum stances in which no tax is payable under Sections 3, 4 or 5 are a "contradiction in terms".
Ingredients Nos.
4 & 5 are as follows: "4.
The goods purchased are "goods, the sale or purchase of which is liable to tax under this Act".
Such purchase is, "in circumstances, in which no tax is payable under sections 3, 4 or 5, as the case may be;" The relevant ingredient involved, as mentioned at page No. 196, was as under: "6.
The dealer either (a) consumes such goods in the manufacture of other goods for sale or otherwise or (b) despatches all such goods in any manner other than by way of sale in the State or (c) despatches them to a place outside the State except as a direct result of sale or purchase in the course of inter State trade or commerce.
" This ingredient was neither argued nor was considered, so the 542 passing reference based on the phraseology of the section is not the dictum of Kandaswami 's case.
Secondly, in section 9, in the instant case, the raw materials purchased or used in the manufacture of new goods and thereafter those new goods were despatched outside the State of Haryana whereupon the tax was levied.
This important factor is wholly missing in Section 7A of the Tamil Nadu Act, which was considered in Kandaswami 's case.
In that decision, this Court approved the Kerala High Court 's decision in Malabar Fruit Products, (supra), which was confined to the interpretation of the words 'goods ', the sale or purchase under the Act.
A deci sion on a question which has not been argued cannot be treated as a precedent.
See the observations of this Court in Rajput Ruda Maha & Ors.
vs State of Gujarat, [1980] 2 SCR 353 at 356.
The decision of the Division Bench of the Kerala High Court in Yusuf Shabeer & Ors.
vs State of Kerala & Ors., 32 STC 359 is clearly distinguishable.
In Ganesh Prasad Dixit 's case (supra) the question of constitutional validity was not argued.
A reference was made by Mr. Tewatia to the decision of the High Court in The Coffee Board vs Commissioner of Commercial Taxes & Ors., 60 STC 142 and the decision of this Court in Coffee Board, Karnataka vs Commis sioner of Commercial Taxes, Karnataka, 70 STC 162.
In these cases the question involved was the acquisition of coffee by the Coffee Board under compulsory acquisition or purchase or sale of goods.
That question is entirely different from the question with which we are concerned in these appeals.
Prior to 46 the Amendment, Entry 54 of List II of the 7th Schedule of the Constitution of India which demarcated the exclusive field of State Legislation, read with Article 246(3) of the Constitution conferred power on the State Legislature to impose tax on the transactions of sale or purchase of goods.
The said Entry read as follows: "Taxes on the sale or purchase of goods other than Newspapers, subject to the provisions of Entry 92 A of List I".
Entry 92A of List I, which is in the exclusive domain of the Union, was to the following extent: "Taxes on the sale or purchase of goods other than Newspapers, where such sale or purchase takes place in the course of inter State trade or commerce." The mere consignment of goods by a manufacturer to his own branches outside the State does not in any way amount to a sale or 543 disposal of the goods as such.
The consignment or despatch of goods is neither a sale nor a purchase.
The first judg ment in case of Goodyear India was on December 4, 1982 when it was held that the Notification was beyond the Act, as the word 'disposal ' did not include the word 'mere despatch ' as mentioned in the notification.
The Constitution (46th Amend ment) Act, 1982 came into force on February 2, 1983, whereby section 9 was amended.
This amendment was after 46th Consti tutional Amendment Act, 1982.
The 46th Constitution Amend ment Act in the Statement of Objects & Reasons, inter alia, stated as follows: "There were reports from State Government to whom revenues from sales tax have been as signed, as to the large scale avoidance of Central Sales Tax leviable on inter State sales of goods through the device of consign ment of goods from one State to another and as to the leakage of local Sales Tax in works contracts, hire purchase transactions, lease of films etc.
Though, Parliament could levy a tax on these transactions, as tax on sales has all along been treated as an item of revenue to be assigned to the States, in regard to these transactions which are semble sales also, it is considered that the same policy should be adopted.
" The Law Commission of India in its 61st Report made, as indicated before, certain recommendations, and noticed that the provisions of existing were insuf ficient to tax the consignment transfers from branch to another, as it was beyond the concept of sale, and its recommendations are contained in paragraph 2.23 of Chapter II (at page 66), it recommended that the definition of sale in the , after carrying out the requi site Constitution Amendment be amended somewhat on the lines indicated by them in their report.
The Union of India, in part, accepted the recommendations but instead of amending the definition of sales in , inserted a new Entry in the Union List in the shape of Entry 92B and also inserted a new sub clause (4) after subclause (g) in article 269 (1) of the Constitution.
The Parliament also amend ed clause (3) of Article 269.
It appears to us that the effect of the aforesaid amend ment is that the field of taxation on the consignment/des patch of goods in the course of inter State trade or com merce expressly come within the purview of the legislative competence of the Parliament.
It is wellsettled that the nomenclature of the Act is not conclusive and for 544 determining the true character and nature of a particular tax, with reference to the legislative competence of a particular Legislature, the Court will look into its pith and substance.
See the observations of Governor General in Council vs Province of Madras, [1945] 72 IA 91.
There, Lord Simonds observed as follows: " . .
For in a Federal Constitution, in which there is a division of legislative powers between Central and provincial legisla tures it appears to be inevitable that contro versy should arise; Whether one or other legislature is not exceeding its own, and encroaching on the others Constitutional Legislative Power, and in such a controversy it is a principle, which their Lordships do not hesitate to apply in the present case, that it is not the name of the tax, but its real nature, "it is pith and substance", as it has some times been said which must determine into what category it fails.
" We must, therefore, look not to the form but to the substance of the levy.
See the observations of the Federal Court in Ralla Ram vs The Province of East Punjab, AIR 1949 FC 81.
Therefore, the nomenclature given by the Haryana Legis lature is not decisive.
One has to find out whether in pith and substance, a consignment tax is sought to be imposed, a tax on despatch in the course of inter State trade or com merce.
I have no hesitation in holding that it is a tax on despatch.
Inter state trade or commerce, it has been empha sised, is of great national importance and is vital to the federal structure of our country.
As the imposition of consignment tax requires very deep consideration of all its aspects and certain amount of consensus among the States concerned, especially with regard to the rates, grant of exemption, and ratio relating to distribution of proceeds amongst the States inter se, the actual imposition of tax is bound to take some time till an agreeable solution is found, but that would not make the consignment tax to be in sus pended animation in the State, and make us hold that a tax which is in essence a tax on consignment should be taxed by the States by the plea either that otherwise there is ample scope of evasion and further States are without much re sources in these days when there is such a tremendous demand on the revenue of the States.
It is well settled that the Entries in the Constitution only demarcate the legislative fields of the respective legislatures and do 545 not confer legislative powers as such.
The tax on despatch of goods outside the territory of the State certainly is in the course of inter State trade or commerce, and in other words, amounts to imposition of consignment tax, and hence the latter part of section 9(1)(b) is ultra vires and void.
In these cases, we are concerned with the validity of the latter part of section 9(1)(b) of the Haryana Act which imposes a tax on despatch of manufactured goods outside the territories of Haryana.
If it is accepted that section 9(1)(b) is ultra vires, the penalty proceedings would auto matically go as they are in substance, based on the viola tion of section 9(1)(b) of the Act and the consequent pro ceedings flowing therefrom.
It is in that context that in writ petition No. 3834 of 1985, Mr. Soli Sorabjee urged that the attempt and action of the State in imposing tax and attempt to penalise are bad.
In this connection, it may be mentioned that before the Full Bench of the Punjab & Haryana High Court on behalf of the State, a statement was made, which has been recorded in 58 STC 393 at p. 408, as follows: "Counsel appearing for the State of Haryana made a statement that if the Full Bench held that Bata India Limited 's, case (1983)54 STC 226 did not lay down the correct law and the amendment effected by Act No. 11 of 1984 to Section 9 was intra vires, then the provision of sub section (3) of section 24 regarding the rate of tax shall not be enforced and only the old rate will be leviable.
" In view of the aforesaid statement, no higher rate except the old rate admissible factually would be applica ble.
Section 24(3) was introduced by the Haryana Act with retrospective effect from May 27, 1971, which is as follows: "Notwithstanding any other provisions of this Act or any Judgment, decree or order of any Court or other authority to the contrary if a dealer who purchases goods, without payment of tax under Sub section (1) and fails to use the goods so purchased for the purpose specified therein he shall be liable to pay tax on the purchase value of such goods, at the rates notified under Section 15 without prejudice to the provisions of Section 50 provided that the tax 546 shall not be levied where tax is payable on such goods under any other provision of this Act.
" This provision without making any change in the substan tive provision purports to give a direction to ignore the judgment, in other words, purports to overrule the judg ments, namely, Goodyear and Bata India, which is beyond the legislative competence of the State Legislature and this provision is void in view of the decision of this Court.
See Shri Prithvi Cotton Mills Ltd. vs Broach Borough Municipali ty, [1969] 2 SCC 283 at 286.
For the same reason, applying the main section instead of section 9(1), section 24 should also fail as amended.
Civil appeal No. 15 15/84 is also liable to be dismissed in view of the judgment of this Court in Dy.
Commissioner of Sales Tax (Law), Board of Revenue (Taxes) vs M/s. Thomas Stephen & Co. Ltd., Quilon, ; , where this Court observed that "disposal means transfer of title in the goods to any other person", and therefore it would not include mere despatch to own self or to its agents or to its branch offices or depots.
In the premises, the decision of the Punjab & Haryana High Court in Goodyear India Ltd., 53 STC 163 is correct on merits as well.
In the aforesaid view of the matter, it cannot be held that section 9(1) and sub section (3) of section 24 are constitutionally valid.
In civil appeals Nos. 1633 (NT) of 1985 and 3033/86 which are the appeals by the Food Corporation of India, Mr. Sen submitted that the FCI is a service agency of the Govt.
of India and is discharging the statutory functions of distribution of foodgrains by procuring/purchasing from the surplus States and despatching the same to the deficit States in accordance with the policy of the Govt.
of India.
He further submitted that the Corporation procures food grains from the farmers through commission agents in the Mandis of Haryana and despatch them to its own branches in the deficit States of the country.
The Corporation branches in the recipient States supply these stocks to the State agencies/fair price shops and also pay tax as per the provi sions of the Sales Tax law of the respective States.
Some of the stocks are distributed within Haryana for the Public Distribution System (PDS) for which sales tax is charged and deposited with the Sales Tax depot as per the provisions of the Haryana General Sales Tax Act.
In case the stocks are also sold in the course of inter State trade or commerce, central sales tax is levied and deposited with the Haryana Sales Tax authorities.
Some of the grains are also exported out of India on which there is exemption on payment of any tax.
547 In fact, the points at which the tax is to be levied have been indicated in Schedule 'D ' to the Act.
It is clear from the perusal of the Schedule that in case of Paddy, the taxable event is the last purchase.
Similarly, in case of rice the taxable event is the first sale point in the State.
In case of wheat and other cereals the point of taxation is the last sale to the consumer by a dealer liable to pay tax under the Act.
In respect of inter State despatch of wheat and other foodgrains by FCI to its own branches, tax is attracted at the time of despatch under section 9(1)(c) of the Haryana Act.
Section 9 is, therefore, the charging section for taxation in case where the goods are purchased for export.
There is no other provision for levy of purchase or sales tax in such cases of export.
Incidentally, "export" has been defined in section 2(e) of the Act which reads as follows: "2(e) "export" means the taking out of goods from the State to any place outside it other wise than by way of sale in the course of inter State trade or commerce or in the course of export out of the territory of India;" No tax is payable under the Haryana Act when exports outside the State take place either in the course of inter State sale or export out of the territory of India.
No tax is therefore payable in regard to export outside India but the tax is payable for sale in the course of inter State trade and commerce i.e. under the .
It is only when the goods are despatched/consigned to the depots of the FCI in other States that tax is levied under section 9 of the Haryana Act.
This is in addition to the sales tax paid by the FCI on the sale of grains in the recipient States.
On perusal of sections 14 & 15 of the , it becomes clear that wheat is one of the commodities specified as 'declared goods ' and in respect of which the intention is clear that the tax is payable only once on the declared goods.
In the case of inter State sale if any tax has been paid earlier on declared goods inside the State the same is to be refunded to the dealer who is paying tax on such inter State sales.
On these transactions no tax is liable in the recipient State, while in case of inter State despatches, the tax is leviable twice.
The appeals of.
the FCI are confined to section 9(1)(c), which insofar as it purports to tax export, is beyond the legisla tive competence of the State of Haryana.
On behalf of the State in Bata Co. Ltd. vs State of Haryana (supra), the submission of the State was on the basis that it had power to tax consignment or despatches of goods.
But after the 46th Amend 548 ment, the State Legislature is incompetent to legislate about consignments/despatches otherwise than by way of sale under which no purchase/sales tax is leviable under the Haryana Act.
It is the Parliament alone which is legisla tively competent to enact a legislation on consignment.
Now, it is necessary to deal with civil appeals Nos. 4 162 63/85 which deal with the validity of section 13 AA of the Bombay Sales Tax Act.
These appeals are by Hindustan Lever Ltd. and Wipro Products the appellants herein.
The appellants, at all material times, manufacture, make and deal in vanaspati, soaps, etc., chemicals and agro chemicals, and they used to purchase various types of VNE oils for their manufacture of vanaspati, soaps and other products.
Since the appellants had a wide net of distribution of their products all over India, they appointed 40 and more clearing and forwarding agents in the country.
The appellant used to despatch the goods so manufactured from their factory to the clearing and forwarding agents.
They also used to purchase VNE oils and other raw materials and paid 4% tax by way of purchase tax under section 3 of the Bombay Sales Tax Act, 1959 (hereinaf ter called 'the Bombay Act ').
The raw materials are used in the manufacture of said goods and as the said manufactured goods are despatched outside the State to the several dis tributing agencies, the appellant companies were held to be liable to pay, under section 13 AA of the Act, an additional tax @ 2% on purchase of the said goods.
The question, therefore, that arises, is: whether the levy of additional tax at 2% under Section 13 AA of the Act is a tax on purchases failing under Entry 54 of List II of the 7th Schedule or it is a tax on the despatch of consign ment of the manufactured goods outside the State.
In case of latter, the State Legislature will have no power to impose any tax on such consignment or despatch of goods outside the State.
If it is the former, then it will be valid.
The question is that under the true constructions of section 13 AA of the Act, on which the imposition of tax is made, or in other words, what is the incidence of that taxation or taxable event? In both these appeals, namely, civil appeals No. 4162/ 88 and 4163/88, the appellants M/s Wipro Products Ltd. and Hindustan Lever Ltd. are contending that the levy is bad.
The issue involved in both the appeals is the con stitutional validity and legality of the provisions of section 13 AA of the Act, which was introduced into the Act by the Maharashtra Act XXVIII of 1982.
The appellant 549 had a factory at Amalnar in Jalgaon district in the State of Maharashtra wherein it uses non essential oil purchased by it for the manufacture and transport.
The finished products, namely, vanaspati manufactured by the appellant used to be despatched to their various marketing depots in the State of Maharashtra, Madhya Pradesh, Karnataka, Andhra Pradesh, U.P., Tamil Nadu and Kerala etc.
On July 1, 1981 the rate of purchase tax payable on VNE oils (falling under Schedule C, part I at Entry 35) purchased within the State of Maharash tra from non registered dealers increased from 3% to 4%, by the Maharashtra Act 32 of 1981.
Section 13 AA was introduced into the Act providing for levy of 2% additional purchase tax on the purchase of goods, input goods, specified in part I of the Schedule from a non registered dealer if such goods were used in the manu facture of taxable goods within Maharashtra and thereafter the manufactured goods were transferred outside Maharashtra in the manner indicated in the said section.
The appellants filed writ petitions.
An order was passed by the Bombay High Court on July 19, 1988 in respect of these two writ petitions by the Wipro Products as well as Hindustan Lever Ltd. The decision of the High Court is reported in [1989] 72 STC 69.
Dismissing the petitions of the appellants the High Court held that (i) three different phases are contemplated in section 13 AA of the Act, namely, the initial purchase of the raw material, the consumption thereof in the manufacture of taxable goods, and the despatch of the manufactured goods outside the State.
If the goods purchased remain in the same form within the State, the question of levying additional tax would not arise.
The High Court came to the conclusion that there was no ground to hold that the additional tax was levied on the despatch of goods and was unconnected with the initial transaction of purchase, as it was required to be paid in addition to the sales or purchase tax paid or pay able in respect of the same goods which had been so pur chased before the conditions specified in section 13 AA are fulfilled, (ii) in the context of the other provisions of the Act, a sort of concession is given at the time of pur chase on the quantum of tax payable on the purchase of goods which fall under Part I of Schedule C.
However, there is a clear mandate of law, which is clearly understood between seller and buyer, that though tax at the concessional rate is paid, the obligation to pay the additional tax on the happening of certain events, namely, use of such goods in manufacture of finished goods, and despatch of finished goods outside the State, is undertaken 550 by the purchaser; and (iii) implicit in the low rates of tax prescribed on raw material attributable to goods in Part I of Schedule C is the condition precedent that to avail of this concession the goods in question are required to be sold in the State after being used in the manufacture of other taxable goods.
The High Court, further, was of the opinion that a manufacturer who purchases raw material at a concessional rate on the strength of declaration in Form 15 cannot transfer the goods manufactured out of such raw material outside the State.
The High Court held that if he does so, he is liable to pay purchase tax at the full rate on the raw material under section 14.
According to the High Court, similarly, a manufacturer who purchases goods covered in Part III of Schedule C, uses them in the manufacture of other taxable goods which he despatches outside the State, is liable to pay tax at rates ranging from 6% to 15%.
Sec tion 13 AA, therefore, far from being discriminatory, serves to wipe out any discrimination between the two categories of manufacturers mentioned above and manufacturers purchasing raw material covered by Part I of Schedule C, according to the revenue.
The High Court was of the opinion that the additional purchase tax leviable under section 13 AA of the Bombay Act, is on the purchase value of VNE oil used in the manufacture of goods transferred outside the State and not on the value of the manufactured goods so transferred.
It further held that the tax levied under section 13 AA of the Bombay Act, falls squarely and exclusively under Entry 54 of the State List in the 7th Schedule to the Constitution of India and the State Legislature was competent to levy it.
It does not even remotely fall under Entry 92B of the Union List, according to the High Court.
The High Court was also of the view that the goods taxed under section 13 AA of the Bombay Act, are consumed in the State as raw material in the process of producing other commodities.
Hence, there was no question of any hindrance to a free flow of trade bringing into operation Article 301 of the Constitution.
According to the High Court, the peti tioners had not brought forth any material to show how the free flow of trade has been affected by this additional rate of tax; and held that section 13AA is not violative of Article 14 of the Constitution; and that section 13AA of the Bombay Act and the orders requiring the appellants to pay additional tax @ 2% on purchase of VNE oil used by them as raw material in the manufacture of goods despatched outside the State, were valid.
The High Court in the judgment under appeal has set out the relevant provisions of the Act, which was enacted to consolidate and 551 amend the law relating to levy of tax on the sale or pur chase of certain goods in the State of Bombay.
Section 2 contains some of the definitions.
Section 24 deals with authorisations of turnover etc.
Section 13AA of the Bombay Act with which the High Court and these appeals are con cerned, is in the following terms: "13 AA.
Purchase tax payable on goods in Schedule C, Part I, when manufactured goods are transferred to outside branches.
Where a dealer, who is liable to pay tax under this Act, purchases any goods speci fied in Part I of Schedule C, directly or through Commission agent, from a person who is or is not a Registered dealer and uses such goods in the manufacture of taxable goods and despatches the goods, so manufactured, to his own place of business or to his agent 's place of business situated outside the State within India, then such dealer shall be liable to pay, in addition to the sales tax paid or payable, or as the case may be, the purchase tax levied or leviable under the other provi sions of this Act in respect of purchases of such goods, a purchase tax at the rate of two paise in the rupee on the purchase price of the goods so used in the manufacture, and accordingly the dealer shall include purchase price of such goods in his turnover of pur chases in his return under section 32, which he is to furnish next thereafter.
" The questions involved in these appeals are: whether section 13AA of the Bombay Act is beyond the legislative competence of the State Legislature; and it is violative of Article 14 of the Constitution; and thirdly, whether the said provision is violative of Article 301 of the Constitu tion.
It was contended on behalf of the appeallant that section 13AA of the Act is a charging section and imposes a charge of an additional rate of 2% in the rupee if the following conditions laid down therein are satisfied: (i) the charge is levied upon a dealer who is liable to pay tax under the Act; (ii) such a dealer purchases any goods speci fied in Part I of Schedule C, directly or through commission agent, from a person who is or is not a registered dealer; (iii) the goods so purchased are used in the manufacture of taxable goods; and (iv) the goods which are so manufactured (and not the goods on which purchase tax had been paid) are despatched to the dealer 's own place of business or to his agent 's place of business situated outside the State.
552 According to the appellant, the said section lays down the person who is liable to pay tax, the goods on which the same is leviable and the taxable event which would attract the liability of additional tax of two paise in the rupee, namely the despatch or consignment of goods by the dealer/manufacturer outside the State.
According to Dr. Pal, counsel for the appellant, the taxable event is not the purchase of goods as such which is the raw material, but it is the despatch or consignment of goods manufactured by the dealer/manufacturer to its own branch outside the state; and that thus manufactured goods are different from commercial commodity, distinct and sepa rate from the raw materials on which purchase tax has al ready been paid.
It is well settled, it was reiterated before:us, that in case of excise duty, the taxable event is the manufacture of goods and the duty is not directly on the goods but on the manufacture thereof.
In case of sales tax, taxable event is the sale of goods.
Hence, though both excise duty and sales tax are levied with reference to the goods, the two are different imposts, in one case the impo sition is on the act of manufacture or production while in case of other the imposition is on the act of sale.
But in neither case the impost is a tax directly on the goods.
See in this connection, the observations of this Court in re: The Bill to amend section 20 of the and section 3 of the Central Excises & Salt Act, 1944; , at 821 and M/s. Guruswarny & Co. vs State of Mysore, [ at 562.
The power to tax the sale or purchase of goods is dif ferent from the right to impose taxes on use or consumption.
According to Dr. Pal such power to levy sales tax cannot be exercised at the earlier stage of import or manufacture/production nor the said power can be exercised at the later stage of use or consumption but only at the stage of sale or purchase.
In respect of sales tax, the right to levy duty would not at all come into being before the time of sale/purchase.
Sales tax cannot be imposed unless the goods are actually sold and may not be leviable if there is a transfer in some other form.
See in this connection the observations of the Federal Court in Mukunda Murari Chakravarti & Ors.
vs Pabitramoy Ghosh & Ors., at 22.
Therefore, in this case it is necessary to ascertain what is the taxable event under section 13 AA of the Act which attracts duty.
A taxing event is that event the occurrence of which immediately attracts the levy or the charge of tax.
In the fiscal legislations normally a charge is created.
The mischief of taxation occurs on the happening of the taxable event.
Diffe 553 rent taxes have different taxable events.
In the instant case, Dr. Pal canvassed before us that the incidence of the levy of additional tax of two paise in the rupee is not on the purchase of goods but such a levy is attracted only when (a) the goods which so purchased on payment of pur chase tax are used in the manufacture of taxable goods; and (b) the goods so manufactured are despatched to his own place of business or to his agent 's place of business out side the State.
Therefore, the incidence of tax is attracted not merely on the purchase but only when the goods so pur chased arc used in the manufacture of taxable goods and are despatched outside the State.
In our opinion, it was rightly submitted that it is the effect of section 13AA of the Act.
It was further highlighted by Dr. Pal on behalf. of the assessee that additional tax is not levied on the goods purchased on payment of purchase tax and despatched outside the State.
The goods which are purchased on payment of purchase tax are used in the manufacture of taxable goods.
What is despatched is not the raw material which have been purchased on payment of purchase tax but a completely dif ferent commodity, namely, vanaspati and soap.
If the raw materials as such purchased on payment of purchase tax are despatched outside the State, the additional tax under section 13 AA of the Act is not attracted.
Hence, the inci dence of additional tax has no nexus with the purchase of the raw materials, as was contended by Mr. S.K. Dholakia, appearing for the State and as held by the High Court.
Purchase tax under section 3 of the Act is attracted when the taxable event i.e. the purchase of goods occurs, but the taxable event for the imposition of additional tax of two paise in the rupee occurs only when the goods so purchased are used in the manufacture of taxable goods and such taxable goods are despatched outside the State by a dealer manufacturer.
Dr. Pal drew our attention to some of the observations of this Court in Kedarnath Jute Mfg. Co. Ltd. vs Commissioner of Income tax (Central), Calcutta, 82 ITR SC 363 and State of Madhya Pradesh & Ors.
vs Shyama Charan Shukla, 29 STC SC 215 at 218 219.
On the other hand, Mr. Dholakia submitted that the submission of the appellant proceeded on the assumption that the liability to pay is the same as the obligation to pay but this was wrong.
These two are different.
It was submitted that the obligation to pay is not the same thing as liability to tax; and that it was wrong to proceed on the basis that because 'obligation to pay ' is a later event, 'the despatch of goods ' is the taxa ble event.
This is a fallacy, according to Mr. Dholakia.
In this connection, reliance was placed on the observations of this Court in R.C. Jail vs Union of India, [1962] Suppl.
3 SCR 436, where this Court reiterated that subject always to the legislative com 554 petence of the enacting authority, the tax can be levied at a convenient stage, so long as the character of the impost is not lost.
The method of collection does not affect the essence of the machinery of collection for administrative convenience.
Reliance was also placed on the observations of Union of India vs Bombay Tyre International Ltd., ; It was submitted by Mr. Dholakia that the correct ap proach is to first determine whether the State Legislature, having regard to Entry 54 of List II to the 7th Schedule to the Constitution, can levy tax on purchase of a class of goods, which class is to be identified by reference to the condition of use of such goods into other taxable goods and despatch of such taxable goods outside the State.
He submit ted that if it is accepted that the State could have the power to tax purchases of goods meant for use into manufac ture of other taxable goods and despatch outside thereafter, then next question is whether the State enactment (like section 13AA of the Bombay Act) is so formulated as to come within the framework described.
He admitted that even if it did, it would still have to be subject to (a) the doctrine of pith and substance, (b) the fundamental rights, and (c) Article 301.
According to Mr. Dholakia, the Act contains a charging section which is section 3.
It levies tax on turnover of sales and purchases within section 2(36) and 2(35) respec tively of the said Act.
Section 13 of the Act levies tax on purchases in accordance with rates prescribed in Schedule C if the goods are purchased from an unregistered dealer.
Section 13A levies a concessional tax on purchases if the goods are purchased from a registered dealer, provided a declaration in the prescribed form is given under section 12(b) of the Act, if the purchaser buys directly, or one under section 12(d) if the purchaser buys through a commis sion agent.
In both the forms the relevant conditions are: (a) that the goods fall within Part ii of Schedule C; and (b) that the goods bought would be used for manufacture of other taxable goods within the State and sold within the State.
Mr. Dholakia submitted that on giving the aforesaid declaration, the purchaser would have to pay only 4% tax.
The rates prescribed in Schedule C are as under: Schedule 'C ' Part Minimum Rate Maximum Rate I 2% 4% II 6% 15% 555 The effect of section 13A without section 13 AA, accord ing to Mr. Dholakia, was that only those who bought goods which fell into Part II, would have benefitted by the decla ration, since the rate mentioned in section 13A was 4%.
Hence, those buying goods falling within Part I of Schedule C had not to give any declaration under section 12(b) or 12(d), as the case may be, and still manufacture the taxable goods and despatch them outside the State.
According to him, as a result of this situation, two results emerged, i.e. (i) the State lost revenue because the goods manufactured with the help of the infrastructure provided by the State escaped further tax, by goods being resold outside the State; and (ii) the purchasers of raw materials used by the manufactur ers for producing new taxable goods, were not being treated equitably because those whose purchases of goods which fell into Part II had to give a declaration to get the benefit of reduced rate.
On the other hand, those whose purchases of goods fell in Part I, need not give such a declaration.
According to him, from the standpoint of the object of encouraging resale within the State, the classification in form of Part I and II had no rational nexus.
Therefore, that construction should be made which may make section 13 AA of the Act, to avoid this mischief.
According to Mr. Dholakia, section 13AA speaks of the requirement of additional purchase tax from those who have paid purchase tax, if the object of the purchases is to use the goods falling in Part I of Schedule C for manufacture of taxable goods and the despatch of such goods outside the State.
He alleged it to be a fair and reasonable construc tion and it will subserve the purpose of the amendment.
It is well settled that reasonable construction should be followed and literal construction may be avoided if that defeats the manifest object and purpose of the Act.
See Commissioner of Wealth tax, Bihar & Orissa vs Kripashankar Dayashankar Worah, at 768 and Income tax Commis sioners for city of London vs Gibbs, 10 ITR Suppl.
121 HL at 132.
Mr. Dholakia further submitted that the Statement of Objects & Reasons also helps this construction.
In our opinion, he rightly submitted that because the accounts had to be maintained in a particular manner, is no criterion or evidence for determining when the liability arises.
The law is that the liability to tax would be determined with refer ence to the interpretation of the Statute which creates it.
It cannot be determined by referring to another Statute.
As contended by both the sides, it is well settled that the doctrine of pith and substance means that if an enactment substantially falls within the powers expressly conferred by the Constitution upon the Legislature 556 which enacted it, it cannot be held to be invalid merely because it incidentally encroches upon matters assigned to another Legislature.
See Kerala State Electricity Board vs Indian Aluminium Co, [1976] SCR 552 and Prafulla Kumar Mukherjee & Ors.
vs Bank of Commerce Ltd., AIR 1947 PC 60 at 65.
Therefore, the proper question which one should address to oneself is, whether section 13AA is in pith and sub stance, not levying tax on purchase but one levying tax on consignment.
Depending upon the answer to the question, the validity of the action can be judged.
Mr. Dholakia submitted that the Act is in pith and substance, an Act levying tax on purchase and not one levying tax on consignment, and re ferred to the observations of this Court in State of Karna taka vs Shri Ranganatha Reddy; , According to him, the consignment contemplated in section 13 AA is only of manufactured goods and no tax is levied under sec tion 13AA in respect of such manufactured goods.
He empha sised as aforesaid.
It is well settled that while determin ing nature of a tax, though the standard or the measure on which the tax is levied may be a relevant consideration, it is not the conclusive consideration.
One must have regard to such other matters as decided by the Privy Council in Gover nor General in Council vs Province of Madras, (supra) not by the name of tax but to its real nature, its pith and sub stance which must determine into what category it fails.
See the observations of R.R. Engineering Co. vs Zila Parishad Bareilly & Anr., ; ; in re: A reference under the Govt.
of Ireland Act, 1920, at 358 and Navnitlal C. Javeri vs K.K. Sen, Appellate Asstt.
Commis sioner of Income Tax, 'D ' Range, Bombay; , at 915.
On an analysis we find that the goods which are des patched are different products from the goods on the pur chase of which purchase tax was paid.
The Maharashtra legis lation has to be viewed in the context of 46th Amendment to the Constitution.
The 46th Amendment introduced Article 269 (1)(h) which lays down that the proceeds of the tax on consignment of goods (whether the consignment is to the person making it or to any other person) where such consign ment takes place in the course of inter State trade or commerce, will be assigned to the States.
The said Amendment also introduced Entry No. 92B in List I of the 7th Schedule.
The said Amendment was made on the consideration of the 61st Report of the Law Commission.
Entry 92B in List I of the 7th Schedule and Article 269(1)(h) of the Constitution bring within its sweep the consignment of goods by a person either to himself or to any other person in the course of inter State trade or 557 commerce.
Article 269(3) gives the power to Parliament to formulate the principles for determining when a consignment of goods takes place in the course of inter State trade or commerce.
If Entry 92B in List I is to be given the widest interpretation, as it should be, it would be clear that the constitutional changes introduced by the 46th Amendment in Article 269 read with the Entry, the tax on consignment of goods now comes within the exclusive legislative field of Parliament.
The true test to find out what is the pith and substance of the legislation is to ascertain the true intent of the Act which will determine the validity of the Act.
If the Parliament in exercise of its plenary power under Entry 92B of List I imposes any tax on the despatch or consignment of goods, Parliament will be competent to do so.
It is, therefore, not possible to accept the argument that the chargeable event was lying dormant and is activated only on the occurrence of the event of despatch.
The argument on the construction of the enactment is misconceived.
The charging event is the event the occurrence of which immediately attracts the charge.
Taxable event cannot be postponed to the occurrence of the subsequent condition.
In that event, it would be the subsequent condition the occurrence of which would attract the charge which will be taxable event.
If that is so, then it is a duty on despatch.
In that view of the matter, this charge cannot be sustained.
As mentioned hereinbefore, the section has been chal lenged as being violative of Article 14 of the Constitution.
This attack is based on the discrimination between the two types of taxes but in the way we have construed the section, in our opinion, this question does not survive.
It was further submitted by Dr. Pal that section 13AA of the Act is violative of Article 301 of the Constitution.
It makes a discrimination between the dealer/manufacturer who despatch es the goods outside the State and the other dealer/manufac turer.
Both the dealer/ manufacturers purchase the goods on payment of purchase tax and use them in the manufacture of taxable goods.
The incidence of additional tax on the pur chase of goods is attracted only when such manufactured goods are despatched outside the State.
If a dealer/manufac turer has to despatch the goods outside the State, he has to pay a higher rate of tax and thus he is discriminated as compared to the other dealer/manufacturer who purchases the raw material on payment of 4% purchase tax, but despatches the raw material straightaway outside the State and uses them in the manufacturer of goods outside the State.
The High Court held that there was no violation of Article 301 of the Constitution.
Reference was made to the decision of this Court in Atiabari Tea Co. Ltd. vs The State of Assam & Ors., ; ; 558 The Automobile Transport (Rajasthan) Ltd. vs The State of Rajasthan, [1963] 1 SCR 491; Andhra Sugars Ltd. vs State of Andhra Pradesh, (supra), State of Madras vs N.K. Nataraja Mudaliar, ; and State of Kerala vs A.B. Abdul Khadir & Ors., ; One has to determine: does the impugned provision amount to restriction directly and immediately, on the trade or commerce movement? As was observed by this Court in Kalyani Stores vs The State of Orissa & Ors.
, ; , imposition of a duty or tax in every case would not tanta mount per se to any infringement of Article 301 of the Constitution.
Only such restrictions or impediments which directly or immediately impede free flow of trade, commerce and intercourse fall within the prohibition imposed by Article 301.
A tax in certain cases may directly and immedi ately restrict or hamper the flow of trade, but every impo sition of tax does not do so.
Every case must be judged on its own facts and its own setting of time and circumstances.
Unless the court first comes to the finding on the available material whether or not there is an infringement of the guarantee under Article 301 the further question as to whether the Statute is saved under Article 304(b) does not arise.
The goods taxed do not leave the State in the shape of raw material, which change their form in the State itself and there is no question of any direct, immediate or sub stantial hindrance to a free flow of trade.
On the evidence adduced, we are in agreement with the High Court that the challenge to the imposition in the background of Article 301 cannot be sustained and, therefore, no question whether such imposition is saved under Article 304(b) of the Constitution arises.
In the aforesaid view of the matter and for the reasons mentioned hereinbefore, it must be held that so far as the appeals in respect of the Haryana Act are concerned, the High Court was right in the view it took in Goodyear India Ltd 's case, 53 STC 163 as well as the views expressed by the High Court in Bata India Ltd. vs The State of Haryana & Anr., 54 STC 226 are correct and are affirmed.
The views of the High Court expressed in Des Raj Pushap Kumar Gulati 's case (supra) are incorrect for the reasons mentioned herein before.
The last mentioned judgment and the judgment and orders following passed by the Punjab & Haryana High Court are, therefore, set aside.
In the premises, Civil Appeals Nos.
1166 72/85 (M/s Goodyear India Ltd. vs State of Har yana & Anr.), Civil Appeal No. 1173 77 (NT)/85 (Gedore (I) Pvt. Ltd. vs State of Haryana & Anr.), civil appeal No. 2674/86 (M/s. Kelvinator of India Ltd. & Anr.
vs State of Haryana & Ors.), Civil Appeal No. 1633 (NT)/85 F.C.I. vs State of Haryana & Anr.) and 559 Civil Appeal No. 3033 (NT)/86 F.C.I., Karnal vs The State of Haryana & Ors.) are allowed and the judgment and order of the High Court are set aside.
Civil Appeals Nos.
15 12 (NT)/84 [State of Haryana & Anr.
vs Gedore Tools (P) Ltd.] and 1515/84 [State of Haryana & Anr.
vs Goodyear India Ltd. ] are dismissed.
Special leave petitions Nos.
83988402/83 are dismissed, and for the rea sons mentioned hereinbefore, civil appeal Nos.
4162/88 (M/s. Wipro Products Ltd. vs State of Maharashtra & Anr.
and 4163/88 [Hindustan Lever Ltd. & Anr.
vs State of Maharashtra & Anr. ] are allowed and the judgment and order of the High Court passed therein, are hereby set aside.
In the facts and the, circumstances of this case, the parties will pay and bear the respective costs.
So far as the civil appeals Nos.
1633/85 and 3033/86 are concerned, wherein the appellants are the Food Corpn.
of India, I allow these appeals and setting aside the judgment of the High Court on the ground that tax on despatch or consignment was not within the competence of the State Legislature.
I am, however, not dealing with or expressing any opinion on the other contentions of the F.C.I. that in view of the nature of its business it was not liable to tax in respect of the sales tax.
This contention will be decided in the appropri ate proceedings.
So far as the contention regarding penalty under the Haryana Act, these proceedings fail because the charging provisions fail.
In so far as the penalty proceedings are impugned on other grounds apart from the failure of the charging provisions, I am expressing no opinion on these aspects.
RANGANATHAN, J. I agree but wish to add a few words.
The question raised in these appeals is a fairly tick lish one.
Simply stated, Section 9 of the Haryana General Sales Tax Act, 1973 as well as section 13AA of the Bombay Sales Tax Act, 1959, purport only to levy a purchase tax.
The tax, however, becomes exigible not on the occasion or event of purchase but only later.
It materialises only if the purchaser (a) utilises the goods purchased in the manu facture of taxable goods and (b) despatches the goods so manufactured (otherwise than by way of sale) to a place of business situated outside the State.
The legislation, howev er, is careful to impose the tax only on the price at which the raw materials are purchased and not on the 560 value of the manufactured goods consigned outside the State.
The States describe the tax as one levied on the purchase of a class of goods viz. those purchased in the State and utilised as raw material in the manufacture of goods which are consigned outside the State otherwise than by way of sale.
On the other hand, according to the respondentsasses sees, this is nothing but a tax on consignment of goods manufactured in the State to places outside the State, camouflaged as a purchase tax, by quantifying the levy of the tax with reference to the purchase price of the goods purchased in the State and utilised in the manufacture.
To me it appeared as plausible to describe the levy as a tax on purchase of goods inside the State (which attaches itself only in certain eventualities) as to describe it as a tax on goods consigned outside the State but limited to the value of the raw material purchased inside the State and utilised therein.
1, therefore, had considerable doubts not only during the arguments but even some time thereafter as to whether so long as the tax purports to be a tax on purchases and has a nexus, though a little distant, with purchase of goods in the State, the State Government 's competence to impose such a tax should not be upheld.
But, on deeper thought, I am inclined to agree with the conclusion of my learned brother.
It is one thing to levy a purchase tax where the character and class of goods in respect of which the tax is levied is described in a particular manner (vide, Andhra Sugars Ltd. & Anr.
vs State, ; and a case like the present where the tax, though described as purchase tax, actually becomes effective with reference to a totally different class of goods and, that too, only on the happening of an event which is unrelated to the act of purchase.
The "taxable event", if one might use the expres sion often used in this context, is the consignment of the manufactured goods and not the purchase.
I also agree with my learned brother that the decision in State of Tamil Nadu vs Kandaswami, [1975] 36 S.T.C. 191, though rendered in the context of an analogous provision, does not touch the issue in the present case.
The above distinction becomes significant particularly in the background of the constitutional amendments referred to in the judgment of my learned brother.
These indicate that there were efforts at sales tax avoidance by sending goods manufactured in a State out of raw materials purchased inside to other States by way of consignments rather than by way of sales attracting tax.
This situation lends force to the contention of the assessees that the States, unable to tax the exodus directly, attempted to do so indirectly by linking the levy ostensibly to the "purchases" in the State.
561 Viewing the impugned statutory provisions from the perspectives indicated above, I agree with my learned broth er that the appeals have to be allowed as held by him.
T.N.A. Appeals and petitions disposed of. | The appellant/petitioner company Good Year India Limit ed a registered dealer both under the Haryana General Sales Tax Act, 1973 and , was manufac turing automobile tyres and tubes at Ballabgarh in the State of Haryana.
For the said manufacturing activity it was purchasing various kinds of raw materials both within the State and from outside the State of Haryana.
The Company was despatching these manufactured goods viz. tyres and tubes to its own branches and sales depots outside the State of Haryana.
The assessing authority imposed upon the appellant company the purchase tax under section 9 of the Haryana General Sales Tax Act, 1973 in view of the despatches made by it of the manufactured goods to its various depots out side the State.
The petitioner company filed writ petition in the Punjab and Haryana High Court challenging the validity of the Notification levying the tax.
A Division Bench of the High Court allowed the petition holding that disposal of goods being separate and 'distinct from despatch thereof, a mere despatch of goods out Of the State by a dealer to his own branch while retaining both 'the title and possession there of does not come within the ambit of the phrase "disposes of the manufactured goods in any manner otherwise than by way of sale", as employed in Section 9(i)(a)(ii) of the Act.
Accordingly the High Court set aside the assessment orders and quashed the impugned Notification as ultra vires of section 9 on the ground that whereas Section 9 provided only for the levy of purchase tax On the disposal of the manufac tured goods, the impugned Notification makes mere despatch of goods to the dealer themselves taxable.
To override the effect of the said judgment the Haryana Legislature enacted Haryana General Sales Tax (Amendment and Validation) Act 1983 where by Section 9 of the Act was amended with retro spective effect to include within its sweep the despatch of manufactured goods to a place outside the State in any manner otherwise than by way of sale.
The impugned Notifica tion and the con 513 sequential action taken thereunder were also validated.
The petitioner company filed writ petitions challenging the assessments.
The High Court allowed the petitions hold ing section 9(1)(b) of the Haryana General Sales Tax Act 1973 as amended by the Haryana General Sales Tax (Amendment and Validation) Act, 1983 in so far as it levied a purchase tax on the consignment of goods outside the State in the course of inter State trade or commerce was beyond the legislative competence of the State of Haryana and was void and inoperative because it intruded and trespassed into an arena exclusively meant for taxation by the Union of India under Entry 92 B of List I of the Seventh Schedule.
Accord ingly the High Court set aside the amended provisions of section 9 as also the retrospective validation of the Noti fication and the consequential validation of all actions taken thereunder.
Against this decision of the High Court, State of Haryana preferred Special Leave Petitions in this Court.
During the pendency of these Special Leave Petitions, the assessing authority issued Show cause notices asking the petitioner company to show cause why in addition to the purchase tax, it should not be liable to penalty as well.
The Petitioner company again filed writ petitions in the Punjab & Haryana High Court challenging the validity of these notices.
In the meantime a Full Bench of the High Court decided the question again and overruling the decision of the earlier Division Bench held that the taxing event was the act of purchase and not the act of despatch of the consignment.
The Full Bench of the High Court held that section 9(1)(b) as amended was neither invalid nor ultra vires.
Against the aforesaid judgment of the Full Bench the Petitioner Company filed appeals in this Court.
All these questions are the subject matters of these appeals.
In the connected appeals, the Food Corporation of India was procuring food grains from the farmers through commis sion agents in tile mandis of Haryana and despatching them to its own branches in the deficit State of the country.
The Corporation branches in the recipient States were supplying these stocks to the State agencies/Fair Price Shops and were also paying tax as per the provisions of the Sales Tax law of the respective States.
Some of the stocks were distribut ed within the State of Haryana for the public distribution system for which sales tax was charged.
and deposited with the sales tax depots as per the Haryana General Sales Tax Act, 1973.
In respect of the inter State despatch of wheat and other food grains by the Food Corporation of India to its own branches tax was attracted at the time of despatch 514 under section 9(1)(c) of the Haryana Act.
The Food Corpora tion of India impugned the levy of tax.
In the other connected appeals the appellant companies Hindustan Lever Ltd. and Wipro Products were manufacturing vanaspati, soaps, chemicals and agro chemi cals.
For the said manufacturing activities, they were purchasing non essential vegetable oil (VNE oil) and other raw materials and were paying purchase tax @4% under section 3 of the Bombay Sales Tax Act, 1959.
The VNE oil was subse quently used by the appellant companies in the manufacture of vanaspati and soaps.
The finished products manufactured by the appellant companies viz. vanaspati and soaps used to be despatched outside the State of Maharashtra to their clearing and forwarding agents.
The assessing authority levied additional purchase tax @ 2% under section 13 AA of the Act on the purchase of said goods VNE oil.
The appellant companies filed writ petitions in the High Court challenging the orders of the assessing authority levying the additional tax of 2% and also the vires of section 13 AA of the Bombay Sales Tax Act, 1959 under which the additional tax was levied, contending that the addition al tax of 2% levied on raw materials, where the finished goods manufactured therefrom were despatched outside the State was in the nature of consignment tax which was not within the legislative competence of the State Legislature.
The High Court dismissed the petitions holding (i) the additional purchase tax levied under section 13 AA of the Act was on the purchase value of VNE oil used in the manu facturing of goods transferred outside the State and not on the value of the manufactured goods so transferred; (ii) the State Legislature was competent to levy the tax under Entry 54 of the State List in the Seventh Schedule to the Consti tution, and (iii) Section 13 AA was not violative of either Article 14 or Article 301 of the Constitution of India.
Against the decision of the High Court appellant compa nies filed appeal in this Court.
Disposing of the matters, this Court, HELD: (Per Mukharji, J.) 1.
Analysing section 9 of the Haryana General Sales Tax Act, 515 1973 it is clear that the two conditions specified, before the event of despatch outside the State as mentioned in section 9(1)(b), namely, (i) purchase of goods in the State and (ii) using them for the manufacture of any other goods in the State, are only descriptive of the goods liable to tax under Section 9(1)(b) in the event of despatch outside the State.
If the goods do not answer both the descriptions cumulatively, even though these are despatched outside the State of Haryana, the purchase of those goods would not be put to tax under Section 9(1)(b).
The liability to pay tax under section 9(1)(b) does not accrue on purchasing the goods simpliciter, but only when these are despatched or consigned out of the State of Haryana.
The section itself does not provide for imposition of the purchase tax on the transaction of purchase of the taxable goods but when fur ther the said taxable goods are used up and turned into independent taxable goods, losing its original identity, and thereafter when the manufactured goods are despatched out side the State ' of Haryana and only then tax is levied and liability to pay tax is created.
It is the cumulative effect of that event which occasions or causes the tax to be im posed.
[539F H; 540A B] 1.1 A taxable event is that which is closely related to imposition.
In the instant section viz. section 9(1)(b) there is such close relationship only with despatch.
The goods purchased are used in manufacture of new independent commodity and thereafter the said manufactured goods are despatched outside the State of Haryana.
In this series of transactions the original transaction is completely eclipsed or cease to exist when the levy is imposed at the third stage of despatch of manufacture.
The levy has no direct connection with the transaction of purchase of raw materi als, it has only a remote connection of lineage.
The mere consignment of goods by a manufacturer to his own branches outside the State does not in any way amount to a sale or disposal of the goods as such.
The consignment or despatch of goods is neither a sale nor a purchase.
The tax imposed under Section 9(1)(b) is a tax on despatch.
The tax on despatch of goods outside the territory of the State cer tainly is in the course of inter State trade or commerce and amounts to imposition of consignment tax, and hence the latter part of section 9(1)(b) is ultra vires and void.
[540G H; 542H; 543A; 544E; 545A] Tata Iron & Steel Co. vs State of Bihar, ; , referred to.
Good Year India Ltd. vs State of Haryana, 53 STC 163 and Bata India Ltd. vs State of Haryana & Anr., 54 STC 226, approved.
516 Des Raj Pushap Kumar Gulati vs The State of Punjab, 58 STC 393, overruled.
Yusuf Shabeer & Ors.
vs State of Kerala & Ors., 32 STC 359; Coffee Board vs Commissioner of Commercial Taxes & Ors., 60 STC 142 and Coffee Board, Karnataka vs Commissioner of Commercial Taxes, Karnataka, 70 STC 162, distinguished.
State of Tamil Nadu vs M.K. Kandaswami, 36 STC 191; Ganesh Prasad Dixit vs Commissioner of Sales Tax, M.P., [1969] 24 STC 343 and Malabar Fruit & Company vs Sales Tax Officer, Pallai, 30 STC 537, distinguished.
1.2 The effect of the Constitution (Forty sixth Amend ment) Act, 1982 is that the field of taxation on the con signment/despatch of goods in the course of inter State trade or commerce expressly comes within the purview of the legislative competence of the Parliament.
[543H] 2.
If section 9(1)(b) is ultra vires, the penalty pro ceedings would automatically go as they are in substance, based on the violation of section 9(1)(b) of the Act and the consequent proceedings flowing therefrom.
[545B] 3.
Section 24(3) of the Haryana General Sales Tax Act, 1973 without making any change in the substantive provision purports to give a direction to ignore the judgments in Goodyear and Bata India Ltd. cases.
This provision is void.
[546B] Shri Prithvi Cotton Mills Ltd. vs Broach Borough Munici pality, [1969] 2 SCC 283 and Dy.
Commissioner of Sales Tax (Law) Board of Revenue (Taxes) vs M/s Thomas Stephen & Co. Ltd. Quilon; , , followed.
In respect of inter State despatch of wheat and other food grains by Food Corporation of India to its own branch es, tax is attracted at the time of despatch under Section 9(1)(c) of the Haryana Act.
Section 9 is the charging sec tion for taxation in case where the goods are purchased for export.
There is no other provision for levy of purchase or sales tax in such cases of export.
[547B] 4.1 No tax is payable under the Haryana Act when exports outside the State take place either in the course of inter State sale or export out of the territory of India.
But the tax is payable for sale in the course 517 of inter State trade and commerce i.e. under the .
It is only when the goods are despatched/consigned to the depots of the FCI in other States that tax is levied under section 9 of the Haryana Act.
This is in addition to the sales tax paid by the FCI on the sale of grains in the recipient States.
In view of sections 14 & 15 of the , it becomes clear that wheat is one of the commodities specified as 'declared goods ' and in respect of which the intention is clear that the tax is payable only once on the declared goods.
In the case of inter State sale if any tax has been paid earlier on declared goods inside the State the same is to be refunded to the dealer who is paying tax on such inter State Sales.
On these transactions no tax is liable in the recipient State, while in case of inter State despatch es, the tax is leviable twice.
Section 9(1)(c), which inso far as it purports to tax, exports, is beyond the legisla tive competence of the State of Haryana.
[547E G] 5.
The incidence of the levy of additional tax of two paise in the rupee under Section 13 AA of the Bombay Sales Tax Act, 1959 is not on the purchase of goods, but such a levy is attracted only when (a) the goods which so pur chased on payment of purchase tax are used in the manufac ture of taxable goods; and (b) the goods so manufactured are despatched to his own place of business or to his agent 's place of business outside the State.
Therefore, the inci dence of tax is attracted not merely on the purchase but only when the goods so purchased are used in the manufacture of taxable goods and are despatched outside the State.
The incidence of additional tax has no nexus with the purchase of the raw materials.
[553A B; D] 5.1 Purchase tax under section 3 of the Act is attracted when the taxable event i.e. the purchase of goods occurs but the taxable event for the imposition of additional tax of two paise in the rupee occurs only when the goods so pur chased are used in the manufacture of taxable goods and such taxable goods are despatched outside the State by a dealer manufacturer.
The goods which are despatched are different products from the goods on the purchase of which purchase tax was paid.
It is therefore not possible to accept the argument that the chargeable event was lying dormant and is activated only on the occurrence of the event of despatch.
[553E; 556F; 557C] 5.2 The charging event is the event the occurrence of which immediately attracts the charge.
Taxable event cannot be postponed to the occurrence of the subsequent condition.
In that event, it would be the subsequent condition the occurrence of which would attract the Charge which will be taxable event.
Therefore the charge under 518 section 13 AA is a duty on despatch.
Accordingly this charge can not be sustained.[557D] The Bill to amend section 20 of the and section 3 of the Central Excises & Salt Act, [1944]; , ; M/s Guruswamy & Co. vs State of Mysore, ; Mukunda Murari Chakravarti & Ors.
vs Pabitramoy Ghosh & Ors., ; Kedar Nath Jute Mfg. Co. Ltd. vs C.I.T., 82 ITR SC 363; State of M.P. vs Shyam Charan Shukla, 29 STC SC 215; R.C. Jail vs Union of India, [1962] Suppl.
3 SCR 436; Union of India vs Bombay Tyre International Ltd., ; and State of Karnataka vs Shri Ranganatha Reddy, ; , referred to.
Wipro Products vs State of Maharashtra, [1989] 72 STC 69 Bom.
, Reversed.
5.3 Imposition of a duty or tax in every case would not tantamount per se to any infringement of Article 301 of the Constitution.
Only such restrictions or impediments which directly or immediately impede free flow of trade, commerce and intercourse fail within the prohibition imposed by Article 301.
A tax in certain cases may directly and immedi ately restrict or hamper the flow of trade.
but every impo sition of tax does not do so.
Every case must be judged on its own facts and its own setting of time and circumstances.
Unless the court first comes to the finding on the available material whether or not there is an infringement of the guarantee under Article 301 the further question as to whether the Statute is saved under Article 304(b) does not arise.
[558B C] 5.4 In the instant case.
the goods taxed do not leave the State in the shape of raw material, which change their form in the State itself and there is no question of any direct, immediate or substantial hindrance to a free flow of trade.
Therefore Section 13 AA of the Bombay Sales Tax Act 1959 is not violative of Article 301.
[558D E] Atiabari Tea Co. Ltd. vs The State of Assam & Ors., ; ; The Automobile Transport (Rajasthan) Ltd. vs The State of Rajasthan, [1963] 1 SCR 491; Andhra Sugars Ltd. vs State of Andhra Pradesh, ; ; State of Madras vs N.K. Nataraja Mudaliar, ; and State of Kerala vs A.B. Abdul Khadir & Ors., ; , referred to.
Kalyani Stores vs The State of Orissa & Ors., ; , relied on.
519 6.
The provisions of constitutional changes have to be construed not in a narrow isolationism but on a much wider spectrum and the principles laid down in Heydon 's case are instructive.
[529H; 530A] Black Clawson International Ltd. vs Papierwerke Waldhof Aschaffenburg, ; , referred.
Heydon 's case; , , relied on.
In construing the expressions of the Constitution to judge whether the provisions of a statute are within the competence of the State Legislature, one must bear in mind that the Constitution is to be construed not in a narrow or pedantic sense.
The Constitution is not to be construed as mere law but as the machinery by which laws are to be made.
[533F] James vs Commonwealth of Australia, ; The Attorney General for the State of New South Wales vs The Brewery Employees Union etc.
; , ; Re.
Central Provinces & Berar Sales of Motor Spirit and Lubri cants Taxation Act 1938, A.I.R. 1939 F.C.I. and The Province of Madras vs M/s Boddu Paidanna & Sons, A.I.R. 1942 F.C. 33, referred to.
The nomenclature of the Act is not conclusive and for determining the true character and nature of a particular tax, with reference to the legislative competence of a particular Legislature, the Court will look into its pith and substance.
[543H; 544A] Governor General in Council vs Province of Madras, [1945] 72 I.A. 91 and Ralla Ram vs The Province of East Punjab, A.I.R. 1949 F.C. 81, referred to.
The doctrine of pith and substance means that if an enactment substantially falls within the power expressly conferred by the Constitution upon the Legislature which enacted it, it cannot be held to be invalid merely because it incidentally encroaches upon matters assigned to another legislature.
[555H; 556A] Kerala State Electricity Board vs Indian Aluminium Co., [1976] 1 S.C.R. 552 and Prafulla Kumar Mukherjee & Ors.
vs Bank of Commerce, A.I.R. 1947 PC 60, referred to.
9.1 The true test to find out what is pith and substance of the 520 legislation is to ascertain the true intent of the Act which will determine the validity of the Act.
[577B] 10.
There are three stages in the imposition of tax.
There is the declaration of liability, that is the part of the Statute which determines what persons in respect of what property are liable.
Next, there is the assessment Liabili ty does not depend on assessment, that exhypothesi has already been fixed.
But assessment particularises the exact sum which a person is liable to pay.
Lastly comes the method of recovery if the person taxed does not voluntarily pay.
[539B C] Whitney vs Commissioner of Inland Revenue, [1926] A.C. 37 and Chatturam & Ors.
vs C.I.T., Bihar, 15 I.T.R. F.C. 302, referred to.
While determining nature of a tax, though the stand ard or the measure on which the tax is levied may be a relevant consideration, it is not the conclusive considera tion.
[556C] Governor General in Council vs Province of Madras, [1945] 72 I.A. 91; R.R. Engineering Co. vs Zila Parishad Bareilly & Anr., ; ; In Re A reference under the Government of Ireland Act, 1920, and Navnitlal C. Javeri vs K.K. Sen, Appellate Asstt.
Commis sioner of Income Tax 'D ' Range Bombay; , , referred to.
The liability to tax would be determined with reference to the interpretation of the Statute which creates it.
It cannot be determined by referring to another Statute.
[555G] 13.
In fiscal legislations normally a charge is creat ed.
The. mischief of taxation occurs on the happening of the taxable event.
Different taxes have different taxable events.
A taxing event is that event the occurrence of which immediately attracts the levy or the charge of tax.
What is the taxable event or what necessitates taxation in an appro priate Statute must be found by construing the provisions.
The main test for determining the taxable event is that on the happening of which the charge is affixed.
[552H; 553A: 552G: 533E; 539B] 14.
Fiscal laws must be strictly construed.
n is not permissible to make assumptions and presumptions in a fiscal provision.
[536H; 538G] C.S.T., U.P. vs The Modi Sugar Mills Ltd., ; and Baidyanath Ayurved Bhawan (P) Ltd., Jhansi, vs Excise Commis 521 sioner, U.P. & Ors., ; , referred to.
While interpreting a Statute a reasonable construc tion should be followed and literal construction may be avoided if that defeats the manifest object and purpose of the Act.
[555F] Commissioner of Wealth tax, Bihar & Orissa vs Kripashan kar Dayashankar Worah, and Income Tax Commis sioners for City of London vs Gibbs, 10 I.T.R. (Suppl.) 121 H.L., referred to.
The Entries in the Constitution only demarcate and legislative fields of the respective legislatures and do not confer legislative powers as such.
[544H; 545A] 17.
A precedent is an authority only for what it actual ly decides and not for what may remotely or even logically follows from it.
[537E] Quinn vs Leathem, ; and The State of Orissa vs Sudhansu Sekhar Misra & Ors., ; , followed.
17.1 A decision on a question which has not been argued cannot be treated as a precedent.
[542B] Rajput Ruda Maha & Ors.
vs State of Gujarat, [1980] 2 S.C.R. 353, followed.
(Per Ranganathan, J.) (Concurring) 1.
Section 9 of the Haryana General Sales Tax Act, 1973 as well as section 13 AA of the Bombay Sales Tax Act, 1959 purport only to levy a purchase tax.
The tax, however, becomes exigible not on the occasion or event of purchase but only later.
It materialises only if the purchaser (a) utilises the goods purchased in the manufacture of taxable goods, and (b) despatches the goods so manufactured (other wise then by way of sale) to a place of business situated outside the State.
The legislation, however, is careful to impose the tax only on the price at which the raw materials are purchased and not on the value of the manufactured goods consigned outside the State.
[559G H; 560A] 2.
It is one thing to levy a purchase tax where the character and class of goods in respect of which the tax is levied is described in a particular manner and a case like the present where the tax, though described as purchase tax, actually becomes effective with reference to 522 a totally different class of goods and, that too, only on the happening of an event which is unrelated to the act of purchase.
[560D E] 2.1 The "taxable event", if one might use the expression often used in this context, is the consignment of the manu factured goods and not the purchase.
[560E] 2.2 The background of the Constitutional (Forty sixth Amendment) indicates that there were efforts at sales tax avoidance by sending goods manufactured in a State out of raw materials purchased inside to other States by way of consignments rather than by way of sales attracting tax.
This situation lends force to the view that the State, unable to tax the exodus directly, attempted to do so indi rectly by linking the levy ostensibly to the "purchases" in the State.
[560G H] Andhra Sugar Ltd. & Anr.
vs State, ; , re ferred to.
State of Tamil Nadu vs Kandaswami, [1975] 36 S.T.C. 191, distinguished. |
This is an appeal filed by the assessee against the order of the Income
Tax Appellate Tribunal dated 31.03.2009 in I.T.A.No.1588/Mds/2007.
2.The appellant is engaged in the business of manufacture and sale of
V & Fan Belts, Oil Seals etc. For the assessment year 2004-2005, they filed
its return on 01.11.2004 admitting a total income of Rs.14,02,65,870/-,
which was subsequently, revised by them on 20.09.2005, admitting the
income at Rs.13,93,08,090/-. Upon scrutiny of the same, the respondent
issued notice under section 143(2) of the Income Tax Act, 1961 (in short,
“the Act”) and thereafter, completed the assessment under section 143(3) on
20.12.2006 determining the total income at Rs.14,67,27,610/- which
excludes long term capital gains. While doing so, the assessing officer
among others, restricted the claim of deduction under section 80HHC by
excluding 90% of the royalty receipts from the profits of the business under
clause (baa) to explanation to section 80HHC(4). Challenging the order of
assessment passed by the assessing officer, the appellant preferred an appeal
before the Commissioner of Income Tax (Appeals)-I, Madurai, who, by
order dated 15.03.2007, partly allowed the appeal filed by the appellant.
Aggrieved over the same, the Revenue went on appeal before the ITAT. By
order dated 31.03.2009, the Tribunal set aside the order of the CIT(A) and
directed the assessing officer to exclude the receipt of royalty from business
profits for the purpose of deduction under section 80HHC of the Act.
Therefore, the appellant is before this court with this tax case appeal.
3.The learned counsel for the appellant contended that the appellant
entered into a MOU with its 100% subsidiary company; the subsidiary
company manufactures the goods as per the specifications given by the
appellant and the appellant has also provided know-how, secret formula
manufacturing process and methods to ensure the same quality of
manufactured goods; for providing these services, the subsidiary company
paid royalty and hence, the royalty receipts are directly related to the goods
exported by the appellant and the same cannot be excluded from the profits
of the business. Without considering the said aspect in a proper perspective,
the assessing officer excluded 90% of the royalty receipts from the profits of
the business. Though the CIT(A) rightly set aside the order of assessment,
the Tribunal erred in directing the assessing officer to exclude the receipt of
royalty from business profits for the purpose of deduction under section
80HHC of the Act. Therefore, the learned counsel sought to allow this
appeal by setting aside the order of the Tribunal.
4.Repudiating the claim so made on the side of the appellant, the
learned senior standing counsel appearing for the respondent submitted that
the appellant/assessee cannot improve their case, when the issue involved
herein is covered by a decision of this Court in Commissioner of Income
Tax v. Shiva Distilleries Ltd., [(2007) 293 ITR 108], wherein, it was
categorically held that “guarantee commission as well as royalty viz., a
payment for using a right, have to be excluded from the business profit for
the purpose of calculation of deduction under section 80HHC of the Act”.
Thus, according to the learned counsel, there cannot be any reason for
deviating such a view, which has already attained finality.
5.Heard both sides and perused the materials available on record.
6.By order dated 20.06.2012, this Tax Case Appeal was admitted on
the following substantial questions of law:
“1. Whether on the facts and in the circumstances of the
case, the Tribunal was right in holding that the royalty income
received for providing know-how, secret formula manufacturing
process and methods in respect of goods manufactured by the
subsidiary and exported by the assessee is not eligible for
deduction under Section 80HHC of the Income Tax Act?
2. Whether on the facts and in the circumstances of the
case, the Tribunal was right in holding that the royalty receipts
should be excluded from the profits of the business for the purpose
of computation of deduction under Section 80HHC of the Income
7.Before the assessing officer, the appellant claimed that the sale of
raw materials, processed waste and scrap, sale of spares, etc. form part of
business activities and hence, it should be included in the total turnover.
Further, the royalty received by them for the services provided to the
subsidiary company, is related to export activity and therefore, the same
cannot be taken into account for 90% exclusion from the business profits,
while computing deduction under section 80HHC. However, the assessing
officer rejected the claim of the appellant, after having held that royalty
income claimed by them is not arising out of any business activity related to
export and it is incidental in nature and hence, 90% of the royalty income
was reduced from the profit of the business for computation of deduction
under section 80HHC.
8.In the appeal filed by the appellant, the CIT(A) allowed the claim of
the appellant, relating to royalty income, after following the earlier order of
the Tribunal dated 31.07.2006 in ITA.No.2669/Mds/04 in respect of the
appellant's own case for the assessment year 2000-01. However, the
Tribunal set aside the same and directed the assessing officer to exclude the
receipt of royalty from business profits for the purpose of deduction under
section 80HHC of the Act, based on the decision of this court in CIT v.
9.In the aforesaid decision in Shiva Distilleries Ltd, this court had
referred to the earlier order in CIT v. Madras Motors Ltd / M.M.Forgings
Ltd [(2002) 257 ITR 60], in which, it was held that “the turnover from the
business of sale of motorcycles, motorcycle spare parts and television sets
could not be included in the total turnover of the assessee for the purpose
of the computation of deduction under section 80HHC of the Act as the
total turnover in section 80HHC is only the turnover relating to export
business of the assessee and not the turnover relating to other business of
the assessee”. In the light of the said order, this court held that the scrap
and waste materials, which would not be relatable to export business of the
assessee, have to be excluded from business profit for the purpose of
calculation of deduction under section 80HHC of the Act.
10.Further, in the same decision in Shiva Distilleries Ltd case, with
regard to includibility of royalty as well as the guarantee commission for the
purpose of calculation of deduction under section 80HHC of the Act, this
court had referred to two decisions (i)CIT v. Bangalore Clothing Co.
[(2003) 260 ITR 371], wherein, it was held by the Bombay High Court that
“the Explanation (baa) to section 80HHC of the Income Tax Act, 1961,
was inserted by the Finance (No.2) Act, 1991, with effect from April 1,
1992 and under that Explanation, “profits of the business”, for the
purposes of section 80HHC does not include receipts which do not have
an element of turnover like rent, commission, interest etc”; and (ii)CIT v.
Sundaram Clayton Ltd [(2006) 281 ITR 425], in which, it was held by this
court that “the charges of miscellaneous income and commission do not
form part of the turnover for the purpose of calculation of deduction
under section 80HHC of the Act”. Following the said two decisions, it was
categorically held that “guarantee commission as well as royalty viz., a
payment for using a right, have to be excluded from the business profit for
the purpose of calculation of deduction under section 80HHC of the Act”.
11.Applying the ratio laid down in the aforesaid decision viz., Shiva
Distilleries Ltd's case, which is squarely applicable to the facts of the
present case, wherein, there is no concrete material produced by the
appellant / assessee to prove that the royalty income received from the
subsidiary company, are related to export business, this court is of the view
that the Tribunal has rightly directed the assessing officer to exclude the
royalty income from the business profits for the purpose of calculation of
deduction under section 80HHC of the Act, which warrants no interference.
12.In such view of the matter, the substantial questions of law raised
herein are answered against the appellant. Accordingly, the tax case appeal
stands dismissed. No costs.
1.The Assistant Commissioner of Income Tax,
2.The Commissioner of Income Tax (Appeals)-I | The Madras High Court recently upheld the decision of the Income Tax Appellate Tribunal directing the assessing officer to exclude the royalty income from the business profits for the purpose of calculation of deductions under Section 80HHC of the Income Tax Act.
Justice R Mahadevan and Justice Sathya Narayana Prasad observed that the appellant could not produce concrete evidence to assert that the royalty income received from a subsidiary company was related to export business. Thus, the decision of the tribunal did not warrant any interference.
The court relied on the decision of the Madras High Court in CIT v. Shiva Distilleries Ltd [(2007) 293 ITR 108 (Madras)]. In this case, the court had relied on the decision in CIT v. Madras Motors Ltd / M.M.Forgings Ltd[(2002) 257 ITR 60] in which it was held that scraps and other waste materials which did not relate to the export business of the assessee had to be excluded from business profits for the purpose of calculation of deduction under Section 80HHC of the Act.
The court had also relied on the decision of Bombay High Court and Madras High Court in CIT v. Bangalore Clothing Co. [(2003) 260 ITR371] and CIT v. Sundaram Clayton Ltd [(2006) 281 ITR 425] respectively to hold that guarantee commission, as well as royalty, have to be excluded from the business profit for the purpose of calculation of deduction.
In the present case, the appellant was engaged in the business of manufacture and sale of V and Fan Belts, Oil Seals Etc. They filed a return for the assessment year 2004-2005 admitting a total income of Rs. 14,02,65,870 which was revised at Rs. 13,93,08,090. Upon scrutiny, a notice was issued by the Assistant Commissioner of Income Tax under Section 143(2) of the Act. The assessment was completed determining a total income of Rs. 14,67,27,610.
The assessing officer excluded 90% of royalty receipts from the profits of the business. This order was challenged by the appellant before the Commissioner of Income Tax (Appeals) who partly allowed the appeal. Aggrieved, the Revenue preferred an appeal wherein the Income Tax Appellate Tribunal set aside the order of the commissioner and directed the assessing officer to exclude royalty receipts.
The appellant contended that the royalty was received for providing the know-how, secret formula, manufacturing process and methods to the subsidiary company to ensure that the same quality of goods was manufactured. Thus, they were directly related to the goods exported by the appellant and could not be deducted from the profits of the business.
The respondents contended that the legal position was already settled in the Shiva Distilleries case.
Observing that the substantial question of law was already answered against the appellant, the court dismissed the appeal.
Case Title: M/s. Fenner (India) Limited v. The Assistant Commissioner of Income Tax
Case No: TCA No. 184 of 2012
Counsel for the Appellant: Mr. Subbaraya Aiyar
Counsel for the Respondent: Mr. M Swaminathan, Senior Standing Counsel and Mrs. V. Pushpa, Junior Standing Counsel |
1. By this petition the petitioner seeks anticipatory bail in case FIR No.
294/2021 under Section 376 IPC registered at PS New Ashok Nagar.
2. Learned counsel for the petitioner contends that even as per the case
of the prosecutrix the parties were in a live-in relationship and initially her
father did not agree to marry as he did not like the petitioner, however he
agreed subsequently. In the FIR the main allegation is that under pressure
the complainant was made to spend ₹1,25,000/-, which amount has already
been transferred to the account of the complainant.
3. Learned APP for the State has taken this Court through the FIR and
the statement of the prosecutrix recorded under Section 164 Cr.P.C. He
states that though the case of the prosecutrix was that they were in
relationship but initially she was raped. Further she has alleged of
harassment and torture and that the petitioner made her to spend the entire
4. Learned counsel for the prosecutrix is also present and has addressed
arguments. According to her, after establishing relationship the petitioner
refused to marry her. Petitioner also harassed and mentally tortured the
prosecutrix. Besides she was the one who had to bear all the expenses and
her credit card of Punjab National Bank was also snatched by the petitioner
which she got blocked thereafter.
5. The allegation of the prosecutrix in the above-noted FIR are that in
September, 2017 she came to Delhi for a job to help the family financially
and lived as a paying guest for about one and a half year. During this period
she met the petitioner where she was doing the job and both of them became
friends. The petitioner was staying at Laxmi Nagar and thereafter changed
his flat to West Guru Angad Nagar, Laxmi Nagar. Thereafter, both of them
discussed about the marriage between them with their families. However,
her father did not like Rahul and he declined the marriage proposal.
Thereafter Rahul pressurized her so that she could persuade her parents and
on the persuasion of the prosecutrix her parents agreed for the marriage in
6. According to the prosecutrix thereafter the petitioner called her at his
other flat and established physical relations contrary to her wishes claiming
that since the parents have now agreed, now there was no problem. It is
alleged that the petitioner has been establishing relationship with her and
when she used to refuse to anything, he used to assault her by turning her
hand. She further alleged that she used to bear all the expenses which were
around ₹1,25,000/. On one day the petitioner even snatched her credit card
of Punjab National Bank which she got blocked. Thereafter in December,
2020 he started staying in New Ashok Nagar and got her also a flat in the
same area. He would call her at her flat and establish relationship. In May,
2021 the prosecutrix suffered from COVID and was isolated. Thereafter,
when her condition improved, she talked to her father on phone and went to
her home, whereafter her father got her treatment. After she recovered, she
came with her father to lodge the FIR and during inquiry Rahul and his
family members sought apology. Since she was in depression though she
did not want to settle the matter but she settled and Rahul transferred a sum
of ₹1,25,000/- to her account. Her father took her back to the native place
and got her treated and when she had come back she had lodged the FIR in
7. From the statements of the prosecutrix itself it is evident that both the
petitioner and prosecutrix were in a live-in relationship and both persuaded
their families for the marriage and initially it was the prosecutrix's family
which did not agree, however later her father agreed for the marriage. No
reason has been given as to why the marriage was not performed thereafter.
8. Be that as it may, the main grievance of the prosecutrix is that she was
made to bear the expenses. In a live-in relationship where both the partners
are living together, it is not that only one partner has to bear the expenses
and in case expenses are born by the prosecutrix or both bear the expenses,
the same would not be a criminal offence. Though it is claimed that the
prosecutrix was assaulted, however there is neither any complaint nor the
MLC which shows that the petitioner used to assault her.
9. Considering the nature of allegations levelled in the FIR this Court
deems it fit to grant anticipatory bail to the petitioner. Consequently, in the
event of arrest the petitioner is directed to be released on bail on his
furnishing a personal bond in the sum of ₹25,000/- with one surety bond of
the like amount subject to the satisfaction of the Arresting Officer/ SHO
concerned, further subject to the condition that he will join the investigation
as and when directed and in case of change of residential address and/or
mobile phone number, the same will be intimated to the investigating officer
till the filing of the charge-sheet and thereafter to the concerned Court.
Further, the petitioner will not leave the country without the prior
permission of the Trial Court.
10. Petition is disposed of.
11. Order be uploaded on the website of this Court. | In a live-in relationship, it is not that only one partner has to bear the expenses, said the Court.The Delhi High Court has observed that in a live-in relationship where both partners are living together, it would not be a criminal offence in case expenses are borne by the prosecutrix or by both the partners.Justice Mukta Gupta made the observation while granting anticipatory bail to a man in a rape case filed by the prosecutrix with an allegation that she was made to spend Rs. 1,25,000...
The Delhi High Court has observed that in a live-in relationship where both partners are living together, it would not be a criminal offence in case expenses are borne by the prosecutrix or by both the partners.
Justice Mukta Gupta made the observation while granting anticipatory bail to a man in a rape case filed by the prosecutrix with an allegation that she was made to spend Rs. 1,25,000 under pressure.
"In a live-in relationship where both the partners are living together, it is not that only one partner has to bear the expenses and in case expenses are born by the prosecutrix or both bear the expenses, the same would not be a criminal offence," the Court observed.
The facts of the case are that in September 2017, the prosecutrix had come to Delhi in search of job during which she met the petitioner. It was alleged that the petitioner pressurized the prosecutrix to persuade her parents for marriage. Later, her parents agreed for the marriage in August, 2019.
It was also alleged by her that the petitioner established physical relations contrary to her wishes claiming that there was no problem as the parents had agreed for their marriage. She claimed that when she used to refuse to anything, he used to assault her.
Furthermore, it was her case that she used to bear all the expenses which were around ₹1,25,000/-. Later, the sum was returned in lieu of a settlement between the parties. Subsequently, the instant FIR was lodged on allegations of rape.
"From the statements of the prosecutrix itself it is evident that both the petitioner and prosecutrix were in a live-in relationship and both persuaded their families for the marriage and initially it was the prosecutrix's family which did not agree, however later her father agreed for the marriage. No reason has been given as to why the marriage was not performed thereafter," the Court said.
On the allegations of the Prosecutrix that she was assaulted by the petitioner, the Court observed that there was neither any complaint nor MLC which showed that the petitioner used to assault her.
"Considering the nature of allegations levelled in the FIR this Court deems it fit to grant anticipatory bail to the petitioner," the Court said.
Accordingly, anticipatory bail was granted to the petitioner subject to him furnishing a bail bond of Rs.25,000 with one surety of like amount.
Case Title: RAHUL KUSHWAHA v. STATE OF GNCT OF DELHI |
This Criminal Original Petition has been filed, invoking Section 482
Cr.P.C., seeking orders to call for the records pertaining to the case in C.C.No.
243 of 2018, pending on the file of the District Munsif-cum-Judicial Magistrate
Court, Thiruppattur, Sivagangai District and quash the same.
2. The petitioners 1 to 23 are the accused in C.C.No.243 of 2018, on the
file of the District Munsif-cum-Judicial Magistrate Court, Thiruppattur. On the
basis of the complaint lodged by the Village Administrative Officer,
Illayathangudi Village, Thiruppattur Taluk, second respondent herein, a First
Information Report came to be registered in Cr.No.103 of 2017 for the offences
under Sections 143, 188, 341 and 353 I.P.C., against 9 named persons and 14
women. The first respondent, after completing the investigation, has laid a final
report under Section 173 Cr.P.C., against the petitioners 1 to 23 for the offences
under Sections 143, 188, 341 and 353 I.P.C., and the case was taken on file in
C.C.No.243 of 2018, on the file of the District Munsif-cum-Judicial Magistrate
3. The case of the prosecution is that on 29.11.2017 at about 12.00 noon,
under the head of the petitioners 1 and 2, all the petitioners were standing in
front of the TASMAC shop bearing No.728 situated in Amman Sannathi 1st
street, in Keelasevalpatti Village, Illayathangudi Group, Sivagangai District and
demanding the closure of the said shop, that the petitioners, without getting
necessary permission from the police, had assembled and tried to obstruct the
TASMAC workers to do their duty and also disturbed the public and traffic.
4. The learned Counsel for the petitioners would submit that the
petitioners had approached the officials in a peaceful manner and asked them to
close the TASMAC shop which affects the entire village, that no incident was
occurred as alleged by the prosecution, that the petitioners, who are duty bound
to protect the villagers, particularly young generation from the influence of
alcohol, had requested the authorities to shift the TASMAC shop and that
therefore, no offence is made out as against the petitioners. The learned Counsel
for the petitioners would further submit that there is a clear bar for taking
cognizance of an offence under Section 188 I.P.C., without a complaint, as
contemplated under Section 195 Cr.P.C.
5. At this juncture, it is necessary to refer the judgment of the Honourable
Supreme Court in C. Muniappan & Ors vs State Of Tamil Nadu in CRIMINAL
APPEAL NOS. 127-130 OF 2008, dated 30.08.2010 and the relevant passages
are extracted hereunder:
“20. Section 195(a)(i) Cr.PC bars the court from taking cognizance
of any offence punishable under Section 188 IPC or abetment or
attempt to commit the same, unless, there is a written complaint by
the public servant concerned for contempt of his lawful order. The
object of this provision is to provide for a particular procedure in a
case of contempt of the lawful authority of the public servant. The
court lacks competence to take cognizance in certain types of
offences enumerated therein. The legislative intent behind such a
provision has been that an individual should not face criminal
prosecution instituted upon insufficient grounds by persons
actuated by malice, ill-will or frivolity of disposition and to save the
time of the criminal courts being wasted by endless prosecutions.
This provision has been carved out as an exception to the general
rule contained under Section 190 Cr.PC that any person can set the
law in motion by making a complaint, as it prohibits the court from
taking cognizance of certain offences until and unless a complaint
has been made by some particular authority or person. Other
provisions in the Cr.PC like sections 196 and 198 do not lay down
any rule of procedure, rather, they only create a bar that unless
some requirements are complied with, the court shall not take
cognizance of an offence described in those Sections. (vide Govind
Mehta v. The State of Bihar, AIR 1971 SC 1708; Patel Laljibhai
Somabhai v. The State of Gujarat, AIR 1971 SC 1935; Surjit Singh
& Ors. v. Balbir Singh, (1996) 3 SCC 533; State of Punjab v. Raj
Singh & Anr., (1998) 2 SCC 391; K. Vengadachalam v. K.C.
Palanisamy & Ors., (2005) 7 SCC 352; and Iqbal Singh Marwah &
Anr. v. Meenakshi Marwah & Anr., AIR 2005 SC 2119).
27. Undoubtedly, the law does not permit taking cognizance of any
offence under Section 188 IPC, unless there is a complaint in
writing by the competent Public Servant. In the instant case, no
such complaint had ever been filed. In such an eventuality and
taking into account the settled legal principles in this regard, we
are of the view that it was not permissible for the trial Court to
frame a charge under Section 188 IPC.”
6. It is pertinent to note that Section 195 Cr.P.C, bars taking cognizance of
any offence punishable under Sections 172 to 188 I.P.C., except on a complaint
in writing given by the public servant concerned or some other public servant to
whom he is administratively subordinate. A learned Single Judge of this Court
in Jeevanandham and Others vs State, represented by the Inspector of Police,
reported in 2018(2) LW (Crl.,) 606, after surveying the judgments of the
Honourable Apex Court and of this Court, has held that the Police Officer cannot
register a First Information Report, for an offence under Section 188 I.P.C., and
the Judicial Magistrate cannot take cognizance of the offence, based on the final
report filed under Section 173(2) Cr.P.C.
7. As per the above settled legal position, there must be a complaint by a
public servant who is lawfully empowered under Section 195 Cr.P.C., and it is
mandatory and that therefore, the non-compliance of the same, will make the
proceedings void ab initio and as such, the charge sheet laid under Section 188
I.P.C., has to necessarily be quashed.
8. Now coming to the provision of Section 353 I.P.C., the Honourable
Apex Court in Manik Taneja and another Vs. State of Karnataka and another
reported in (2015)7 Supreme Court Cases 423, has considered the quashment of
charge sheet for the offence under Section 353 I.P.C. and the relevant passage is
extracted as follows:
“A reading of the above provision shows that the essential
ingredients of the offence under Section 353 IPC are that the person
accused of the offence should have assaulted the public servant or
used criminal force with the intention to prevent or deter the public
servant from discharging his duty as such public servant. By
perusing the materials available on record, it appears that no force
was used by the appellants to commit such an offence. There is
absolutely nothing on record to show that the appellants either
assaulted the respondents or used criminal force to prevent the
second respondent from discharging his official duty. Taking the
uncontroverted allegations, in our view, that the ingredients of the
offence under Section 353 IPC are not made out.”
9. In the case on hand, there is no allegation that the petitioners have
assaulted the TASMAC staffs or any other persons or used criminal force with an
intention to prevent or deter the TASMAC staffs from discharging their duty.
Considering the uncontroverted allegations, this Court has no other option but to
say that the ingredients of the offence under Section 353 I.P.C., are not made
10. Now turning to the offences under Sections 143 and 341 I.P.C., it is
necessary to refer the following passages in Jeevanandham's case above referred.
2.In all the cases, the assembly of persons were expressing
dissatisfaction on the governance and claiming for minimum
rights that are guaranteed to an ordinary citizen. If such an
assembly of persons are to be trifled by registering an FIR
under Section 143 of IPC and filing a Final Report for the very
same offence, no democratic dissent can ever be shown by the
citizens and such prohibition will amount to violation of
fundamental rights guaranteed under the Constitution. A reading
of the Final Report also does not make out an offence
under Section 341 of Cr.P.C since any form of an agitation, will
necessarily cause some hindrance to the movement of the general
public for sometime. That by itself, does not constitute an offence
of a wrongful restraint.
11. As rightly held by this Court in Jeevanandham's case, the violation of
Section 30(2) of the Police Act will not constitute an offence under Section 143
I.P.C., as an order passed under Section 30(2) of the Police Act is only regulatory in
nature, by which, the police cannot prohibit any agitations. The prosecution in
order to invoke Section 341 I.P.C., has to establish that a person voluntarily
obstructed any person so as to prevent that person from proceeding in any direction
in which a person has a right to proceed. In the case on hand, as already pointed out,
the petitioners have assembled and conducted an agitation to shift the TASMAC
shop and there is absolutely no material to show that they have voluntarily
obstructed any person. Even assuming that there existed some hindrance for the
movement of the general public for some time, as rightly held in Jeevanandham's
case, that by itself does not constitute an offence of wrongful restraint. Considering
the above, this Court has no hesitation to hold that the final report does not make
out any offence of the wrongful restraint.
12. As already pointed out, the purpose of agitation is to close the TASMAC
shop and shift the same from that place. No doubt, the prohibition is a policy matter
to be decided by the Government. But, at the same time, the policy of prohibition is
a constitutional mandate and the Government is having greater responsibility to
function in larger public interest. The Honourable Supreme Court in Re-Ramlila
Maidan Incident dated.4/5.06.2011 vs Home Secretary, Union of India And
Ors reported in (2012)5 SCC 1, has observed that the dharnas and agitations are
the basic features of the democratic system and the relevant passage is extract
“245. Freedom of speech, right to assemble and demonstrate by
holding dharnas and peaceful agitations are the basic features of
a democratic system. The people of a democratic country like ours
have a right to raise their voice against the decisions and actions
of the Government or even to express their resentment over the
actions of the Government on any subject of social or national
importance. The Government has to respect and, in fact,
encourage exercise of such rights. It is the abundant duty of the
State to aid the exercise of the right to freedom of speech
as understood in its comprehensive sense and not to throttle or
frustrate exercise of such rights by exercising its executive or
legislative powers and passing orders or taking action in that
direction in the name of reasonable restrictions. The preventive
steps should be founded on actual and prominent threat
endangering public order and tranquility, as it may disturb the
social order. This delegate power vested in the State has to be
exercised with great caution and free from arbitrariness. It must
serve the ends of the constitutional rights rather than to subvert
them.”
13. In the case on hand, even according to the prosecution, the petitioners
have not indulged in any act of violence. According to the petitioners, out of 23
accused, 14 accused are women and four accused accused are senior citizens.
Considering the above, this Court has no hesitation to hold that the impugned
proceedings in C.C.No.243 of 2018, pending on the file of the District Munsif-
cum-Judicial Magistrate Court, Thiruppattur, Sivagangai District, are liable to be
quashed.
14. In the result, this Criminal Original Petition is allowed and the
impugned proceedings in C.C.No.243 of 2018, pending on the file of the
District, as against the petitioners are quashed. Consequently the connected
Miscellaneous Petitions are closed.
order may be utilized for official purposes,
but, ensuring that the copy of the order that is
presented is the correct copy, shall be the | The Madurai Bench of Madras High Court has recently quashed an FIR registered against protesters who assembled before a TASMAC Shop in 2017 and demanded that it must be shifted for the sake of young generation.While quashing the FIR registered based on the complaint of Village Administrative Official and taken on the file of the Judicial Magistrate, Justice K. Murali Shankar observed that...
The Madurai Bench of Madras High Court has recently quashed an FIR registered against protesters who assembled before a TASMAC Shop in 2017 and demanded that it must be shifted for the sake of young generation.
While quashing the FIR registered based on the complaint of Village Administrative Official and taken on the file of the Judicial Magistrate, Justice K. Murali Shankar observed that the prosecution has failed to establish that the ingredients of the offences under which they were booked are made out.
The petitioners had filed a petition seeking quashing of the FIR registered under Sections 143 [Unlawful Assembly], 188 [Contempt of lawful authority of public servants], 341 [Wrongful Restraint] and 353 I.P.C [Assault or criminal force to deter public servant from discharge of his duty].
The court observed that the FIR was registered against 23 persons including 14 women without considering the clear bar on taking cognizance of an offence under Section 188 I.P.C. without a complaint, as contemplated under Section 195 Cr.P.C.
The court, after placing reliance on the Supreme Court judgment in C. Muniappan & Ors vs State Of Tamil Nadu (2010), noted its findings that Section 195 Cr.P.C bars taking cognizance of any offence punishable under Sections 172 to 188 I.P.C., except on a complaint in writing given by the public servant concerned or some other public servant to whom he is administratively subordinate.
"...there must be a complaint by a public servant who is lawfully empowered under Section 195 Cr.P.C., and it is mandatory and that therefore, the non-compliance of the same, will make the proceedings void ab initio and as such, the charge sheet laid under Section 188 I.P.C., has to necessarily be quashed."
The case of the prosecution was that the petitioners gathered before a TASMAC shop in Sivagangai District without getting permission from the Police and demanded the closure of TASMAC shop while obstructing traffic and free movement of public. They were also accused of interfering so as to prevent TASMAC workers from discharging their duties.
The petitioners argued that the gathering was peaceful and solely meant for protection of their village and its young generation who could be badly influenced by the TASMAC Shop.
Regarding Section 353 IPC, the court added that it can't be invoked when there are no allegations that the protestors used criminal force or assaulted the TASMAC staff to deter them from discharging their duties.
For reaching the above conclusion, the court referred to Manik Taneja & Anr. v. State of Karnataka & Anr (2015) 7 SCC 423, wherein it was held that an essential ingredient of Section 353 IPC is the use of criminal force or assault on public official to prevent him from carrying on with his duties.
About the police including Section 143 and 341 IPC in the charge sheet, the court further relied on Jeevanandham and Others vs State to explain that none of the essential ingredients required to constitute the said offences have not been made out.
In the said judgment, the court had upheld the right to show democratic dissent. The judgment also stated that every assembly of persons expressing their discontent with the governance cannot be harassed by registering an FIR under Section 143.
Jeevanandham judgment also makes an observation that every agitation is likely to cause some obstruction to the movement of public for sometime which cannot be considered as 'restraint' in the Section.
"...the violation of Section 30(2) of the Police Act will not constitute an offence under Section 143 I.P.C., as an order passed under Section 30(2) of the Police Act is only regulatory in nature, by which, the police cannot prohibit any agitations. The prosecution in order to invoke Section 341 I.P.C., has to establish that a person voluntarily obstructed any person so as to prevent that person from proceeding in any direction in which a person has a right to proceed. In the case on hand, as already pointed out, the petitioners have assembled and conducted an agitation to shift the TASMAC shop and there is absolutely no material to show that they have voluntarily obstructed any person. Even assuming that there existed some hindrance for the movement of the general public for some time, as rightly held in Jeevanandham's case, that by itself does not constitute an offence of wrongful restraint. Considering the above, this Court has no hesitation to hold that the final report does not make out any offence of the wrongful restraint."
The court also observed that prohibition is a policy matter of the government. However, it must also pay heed to the constitutional mandate and function in the larger public interest.
Referring to Re-Ramlila Maidan Incident dated.4/5.06.2011 v. Home Secretary, Union of India & Ors, (2012)5 SCC 1, the court also iterated that the dharnas and agitations are the basic features of the democratic system.
Accordingly, the criminal original petition was allowed and the FIR was quashed.
Case Title: Palaniyappan & Ors. v. State & Ors.
Case No: Crl.O.P.(MD)No.10932 of 2019 and Crl.M.P.(MD)Nos.6876 and 6877 of 2019
Appearance: For Petitioners: Mr. R.Ganeshprabu; For Respondents: Mr.R.Sivakumar, Government Advocate (Crl.Side) for R.1; No Appearance for R.2 |
Heard learned counsel for the petitioner as well as learned A.G.A. for the State-
The present petition has been filed seeking direction to the respondent
authorities to conclude the fair investigation of Case Crime No. 610 of 2021,
Contention of learned counsel for the petitioner is that the police is acting in
collusion with the accused persons and as yet neither the accused persons have
been arrested nor any charge sheet has been filed against the accused persons.
Admittedly, petitioner is aggrieved by the manner of investigation said to have
been conducted against private respondents.
The Apex Court in the case of Sudhir Bhaskarrao Tambe Vs. Hemant
Yashwant Dhage, (2016) 6 SCC 277, following its earlier decision in Sakiri
"2. This Court has held in Sakiri Vasu v. State of U.P., that if a person has a grievance that his FIR
has not been registered by the police, or having been registered, proper investigation is not being
done, then the remedy of the aggrieved person is not to go to the High Court under Article 226 of
the Constitution of India, but to approach the Magistrate concerned under Section 156(3) Cr.P.C.
If such an application under Section 156(3) CrPC is made and the Magistrate is, prima facie,
satisfied, he can direct the FIR to be registered, or if it has already been registered, he can direct
proper investigation to be done which includes in his discretion, if he deems it necessary,
recommending change of the investigating officer, so that a proper investigation is done in the
matter. We have said this in Sakiri Vasu case because what we have found in this country is that
the High Courts have been flooded with writ petitions praying for registration of the first
information report or praying for a proper investigation.
3. We are of the opinion that if the High Courts entertain such writ petitions, then they will be
flooded with such writ petitions and will not be able to do any other work except dealing with such
writ petitions. Hence, we have held that the complainant must avail of his alternate remedy to
approach the Magistrate concerned under Section 156(3) Cr.P.C. and if he does so, the Magistrate
will ensure, if prima facie he is satisfied, registration of the first information report and also
ensure a proper investigation in the matter, and he can also monitor the investigation."
The power of the Magistrate to monitor investigation in exercise of his power
under section 156(3) Cr.P.C. has also been recognized in the decision of the
Apex Court in the case of T.C. Thangaraj vs. V. Engammal, (2011) 12 SCC
328 : (2012) 1 SCC (Cri) 568, where, in the light of the law laid down in Sakiri
"12. It should also be noted that Section 156 (3) of the Code of Criminal Procedure provides for a
check by the Magistrate on the police performing their duties and where the Magistrate finds that
the police have not done their duty or not investigated satisfactorily, he can direct the police to
carry out the investigation properly, and can monitor the same. (See Sakiri Vasu v. State of U.P.)."
Recently, the Hon'ble Supreme Court in M.Subramaniam and another Vs.
S.Janaki and another, 2020 SCC online S.C. 341 affirmed the view taken by
the Supreme Court in Sakiri Vasu Vs. State of Uttar Pradesh (supra) and held as
"17. In our opinion Section 156 (3) Cr.P.C. is wide enough to include all such powers in a
Magistrate which are necessary for ensuring a proper investigation, and it includes the power to
order registration of an FIR and of ordering a proper investigation if the Magistrate is satisfied
that a proper investigation has not been done, or is not being done by the police. Section 156 (3)
Cr.P.C., though briefly worded, in our opinion, is very wide and it will include all such incidental
powers as are necessary for ensuring a proper investigation."
In view of the law noticed above, we dispose off this petition with liberty to the
petitioner to invoke the power of the Magistrate available under the Code of
Criminal Procedure in the light of the law laid down by the Apex Court as
noticed above. | The Allahabad High Court has observed that the Magistrate has the power to monitor investigation in the exercise of his power under Section 156(3) Cr.P.C.The Bench of Justice Anjani Kumar Mishra and Justice Deepak Verma observed thus while referring to Supreme Court's 2016 ruling in the case of Sudhir Bhaskarrao Tambe Vs. Hemant Yashwant Dhage, (2016) 6 SCC 277, wherein it was explicitly...
The Allahabad High Court has observed that the Magistrate has the power to monitor investigation in the exercise of his power under Section 156(3) Cr.P.C.
The Bench of Justice Anjani Kumar Mishra and Justice Deepak Verma observed thus while referring to Supreme Court's 2016 ruling in the case of Sudhir Bhaskarrao Tambe Vs. Hemant Yashwant Dhage, (2016) 6 SCC 277, wherein it was explicitly observed that a person aggrieved with the way investigation being done in a matter, can move an application before the Magistrate under section 156 (3) CrPC as the Magistrate is empowered to even monitor an investigation under the said provision
Significantly, in the Sudhir Bhaskarrao Tambe case, the Apex Court had relied upon the ruling of Sakiri Vasu Vs. State of U.P., (2008) 2 SCC 409, wherein it was held that if a person has a grievance that his FIR has not been registered by the police, or having been registered, proper investigation is not being done, then the remedy of the aggrieved person is not to go to the High Court under Article 226 of the Constitution of India, but to approach the Magistrate concerned under Section 156(3) Cr.P.C
The case in brief
Essentially, the petition before the High Court was filed seeking direction to the respondent authorities to conclude the fair investigation in a criminal case under Sections 363, 366 I.P.C. The petitioner had moved the Court aggrieved by the manner of the investigation being done against the private respondents.
The counsel for the petitioner alleged before the Court that the police is acting in collusion with the accused persons and as yet neither the accused persons have been arrested nor any charge sheet has been filed against the accused persons.
While asking the petitioner to approach the court of the magistrate, the Court also referred to the cases of T.C. Thangaraj vs. V. Engammal, (2011) 12 SCC 328 and M.Subramaniam and another Vs. S.Janaki and another, 2020 SCC online S.C. 341 to conclude that Section 156 (3) Cr.P.C. is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation.
"...it includes the power to order registration of an FIR and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police," the Court quoted the Apex Court's ruling in the case of M. Subramaniam while disposing of the plea.
Case title - Satyaprakash v. State Of U.P And 6 OthersCase citation: (AB) 20 |
Counsel for Appellant :- Sharad Malviya,J.H.Khan,M.I. Farooqui
Counsel for Respondent :- Govt. Advocate
Heard Shri J.H. Khan, learned counsel for the appellant,
learned A.G.A. for the State and perused the material on record.
The appellant has preferred this criminal appeal aggrieved
by judgment and order dated 21.12.2013 passed by Additional
Sessions Judge, Court No. 3, District- Meerut, in Session Trial No.
758 of 2011 (State Vs. Bhura @ Bhure) arising out of Case Crime
No. 112 of 2009, under Section 376G and 506 I.P.C., Police
Station- Daurala, District- Meerut, convicting and sentencing the
appellant to undergo imprisonment for life under Section 376G
I.P.C. with a fine of Rs. 5000/-, in default of payment of fine to
undergo one year additional imprisonment and one year rigorous
imprisonment for an offence punishable under Section 506 I.P.C.
with a file of Rs. 1000/- in default of payment of fine two month
additional imprisonment. All the sentences shall run concurrently.
The case of Rahul was separated from this case as Rahul
was juvenile and matter has been sent to Juvenile Justice Board
for trial.
On 03.03.2009 at around 9:00 p.m. ‘P’ (daughter of
complainant), aged about 14 years, went to attend the call of
nature in the vacant residence of M.D.A., where Rahul and Bhura
S/o Virendra, R/o Village- Palhaida came there and forcibly
picked up complainant’s daughter by holding her face and took
her to the fields and after smelling the intoxicant material, raped
her forcibly. On hearing the noise of victim, Roshan S/o Samay
Singh and Santari W/o Rajkumar went towards the fields then
both the accused ran away threatening that if told to any one,
they would kill.
On the basis of the written report (Exhibit Ka-1), the police
registered Case Crime No. 412 of 2009, under Sections 376, 506
I.P.C. against accused Rahul and Bhura. Investigation of the case
was taken over by Sub- Inspector Alok Kumar Sharma. Site
inspection was prepared by the investigator, the relevant
documents were recorded in the case diary and recorded the
statements of the witnesses.
After completing the investigation, Investigating Officer has
filed charge sheet against Rahul and Bhura, under Section 376,
506 I.P.C. Cognizance was taken by the Chief Judicial Magistrate
and committed to the court of sessions on 29.06.2021 for trial
and thereafter the said sessions trial has been transferred to the
court of Additional Sessions Judge, Court No. 3, Meerut for trial.
Charge under Sections 376G and 506 I.P.C. has been
framed by Additional Sessions Judge, Court No. 15, Meerut.
Charge was denied by the accused Bhura @ Bhure. The accused-
appellant pleaded not guilty and claimed to be tried.
In order to prove the charges framed against the appellant,
the prosecution has examined witnesses, detailed as under:-
In spite of ocular version of the witnesses, following
documents were produced and contents were proved by leading
3 Statement under Section 164 Cr.P.C. Ext. Ka-3
4 Medical examination report Ext. Ka-4
5 Supplementary medical report Ext. Ka-5
9 Medical examination of prosecutrix Ext. Ka-9
10 Pathology report Ext. Ka-10
In statement under Section 313 Cr.P.C. the accused has
stated that he had made love marriage with Mausi of victim due
to this enmity he was falsely implicated in this case.
The main question is that whether accused Bhura @ Bhure
has committed rape with prosecutrix on 03.03.2009 at 9:00 p.m.
when she has gone to attend the nature’s call with help of Rahul
after smelling her intoxicant material raped her forcefully.
In F.I.R. the age of the prosecutrix has been stated as 14
years, after medical examination the age of the prosecutrix was
found at 16 years as shown in Ex- KA-9. No spermatozoa seen in
the vagina smear, in Exh. KA-5 shows that no opinion regarding
can be given hymen torn, bleeding present inside vagina and
torn edge vagina admits two fingers with difficulty and painful.
Prosecutrix PW-3 had deposed in her statement on oath
that she knows accused Bhura @ Bhure who is her neighbour.
Incident took place prior four years at about 9:00 p.m, she went
for nature’s call in the vacant house of M.D.A. then Rahul and
Bhura came there and by holding her face took her to the field
and after subjecting her to the smell of intoxicant material raped
her forcefully. Rape was committed by both the accused. She
was unable to oppose them due to intoxication, she made noise
then they threatened her and if this fact was told to anyone then
she shall be killed. After hearing the scream of PW-3 her
maternal uncle Roshan and Mausi Santari came on the spot and
took her home. She told them about the incident committed by
the accused. PW-3 was medically examined and recovery memo
of her Salwar, Kurta and underwear as prepared by the police as
Exhibit Ka-2. Her statement was also recorded before the
Magistrate. She narrated entire story before the court. Witness
has also proved the statement under Section 164 Cr.P.C. as
Exhibit Ka-3. This witness was not cross examined by the
defence despite ample opportunity, consequently the cross
examination of the witness was closed by the court. As the
statement of witness is not rebutted by the defence so the
evidence is admissible and relevant for the disposal of this case.
PW-2 is the witness of recovery, before this witness clothes
of the prosecutrix was sealed and recovery memo was prepared.
He has proved the recovery memo. In the cross examination the
witness has stated that clothes related to the case are not before
him in the court, at present prosecutrix has been married.
PW-1 mother of the prosecutrix has deposed on oath that
incident took place prior two and a half year, her daughter had
gone for nature’s call at 9:00 p.m. behind the house. Accused
Bhura and Rahul R/o Village-Palhaida carried my daughter
forcefully by holding her mouth and took her to the field and
inhaled her intoxicating substance, thereafter, both committed
rape with her daughter. On hue and cry made by her daughter,
Roshan, Santari and other members of the village came on the
spot, seeing them accused Rahul and Bhura fled away. Her
daughter told the witness about the incident. First day she was
silent due to fear and on second day lodged F.I.R. The age of her
daughter was 14 years. Witness has proved written report as
Exhibit Ka-1. Police had also taken the clothes of her daughter
and sealed it.
PW-4 Dr. Anju Jodha has proved medical report and
supplementary report as exhibit Ka-4 & Ka-5.
PW-5 Constable Harpal formal witness has proved chik
F.I.R. as exhibit Ka-6 and Kayami G.D. Ka-7.
PW-6 I.O. who had proved charge sheet as exhibit Ka-8 and
others witnesses also proved spot map as exhibit Ka-12 & Ka-13
as secondary evidence.
PW-7 senior clerk in C.M.O. office, Meerut has proved X-ray
report as exhibit Ka-10 and X-ray material as exhibited 1,2 & 3.
PW-8 Dr. Pramila Gond has also proved slide report as
exhibit Ka-11 and stated that there was no spermatozoa in the
Prosecutrix PW-3 had supported the prosecution case in her
statement under Section 164 Cr.P.C. proved as exhibit Ka-3,
statement of prosecutrix under Section 164 Cr.P.C. is as follows:-
“ On 03.03.2009 at about 9:00 p.m., she went for nature’s
call behind her home then suddenly Rahul and Bhura came there.
Rahul gagged her mouth so she could not make a noise. They
took her in the field and put a handkerchief on her face so she
became unconscious, Rahul and Bhura committed rape with her.
After sometime she became conscious she make hue and cry
then accused threatened her that they will kill her, if, she told
about the incident. After hue and cry, her maternal uncle and
aunt came there and brought her to the house where she told
the story to her mother.”
Prosecutrix after marriage had also supported the
prosecution version in her examination-in-chief before the trial
court, but despite ample opportunity to the defence for cross
examination, no cross examination was done by the accused.
After closing the cross examination no application for recall was
moved for cross examination of the witness. No revision has
been filed against the said order so in absence of rebuttal entire
evidence of PW-3 is fully reliable. PW-1 had also supported the
prosecution case and there is nothing in her cross examination
by which prosecution evidence can be belied. PW-1 is also an
illiterate lady, she has supported the prosecution case and stated
that what was told by her daughter on the date of incident.
Incident took place on 03.03.2009, F.I.R. was lodged on
04.03.2009. Medical examination of the prosecutrix was
conducted on 04.03.2009 in which it has been opined that no
mark of injury of external part of the body, hymen torn, bleeding
present from inside vagina and edge vagina admits two fingers
with difficulty and painful as shown in Exhibit Ka-4 & Ka-5. Ka-9
is her age certificate by which it is evident that age of the
prosecutrix was 16 years. From the perusal of the supplementary
report, it appears that no spermatozoa seen in the slide taken
from vagina smear. Thus medical report exhibit Ka-4 & Ka-5
supports and corroborates prosecution case. Evidence of PW-3 is
corroborated by medical evidence exhibit Ka-4 & Ka-5.
From the perusal of the record, it appears that in this case
defence counsel had cross examined PW-1, PW-2, PW-6, PW-7,
PW-8 but the learned counsel for defence had not cross
examined PW-3, PW-4, PW-5 after been given ample opportunity.
He had not also participated in the argument knowingly with
intent to delay the trial. It is also praiseworthy that prosecutrix
had fully supported prosecution version even after marriage.
Such sort of courage is appreciated. Her evidence is like an
injured witness and is fully credible and trustworthy supported by
medical evidence. We do place confidence in the deposition of
PW-1 and PW-3. F.I.R. was promptly lodged on the next day from
the date of incident, there is no grudge to falsely implicate
accused appellant. On the basis of fully reliable evidence
prosecution has proved beyond reasonable doubt that accused
Bhura @ Bhure has committed rape with prosecutrix on
03.03.2009 at 9:00 p.m. when she had gone to attend the
nature’s call as narrated by the prosecutrix. Thus the trial court
had rightly held the accused guilty for the charges under Section
376(G) and 506 I.P.C. Thus we confirm the conviction of the
appellant. It is evident that in judgment of the trial court at page
1 & 17, the date of incident has been typed inadvertently
08.03.2009 which shall be read as 03.03.2009.
The main emphasis placed before us is on the point of
sentence by the learned counsel for appellant. The submission is
that at the time of incident accused was 19 years of age, he is a
labour and is in incarceration for about 13 years and at present
he is 32 years. He is married person. Prosecutrix has also
married and living peaceful happy married life.
Learned counsel for the appellant relied on Dinesh @
Buddha Vs. State of Rajasthan, 2006 Lawsuit SC 162, decided on
28.02.2006 by Supreme Court of India in which it has been held
that the sentence provided in Section 376(2)(f) I.P.C. does not
per se become life sentence. Learned counsel for State submitted
that even in a case covered under Section 376 (2) (f) I.P.C.,
imprisonment for life can be awarded. It is to be noted that
minimum sentence of ten years has been statutorily provided
and considering the attendant circumstances the imprisonment
for life in a given case is permissible. Neither the trial court nor
the High Court has indicated any such factor. Only by applying
Section 3(2)(v) of the Atrocities Act the life sentence was
awarded. Therefore, the sentence of life imprisonment was
reduced to 10 years.
In the case of Bavo@Manubhai Ambalal Thakore Vs. State
of Gurarat 2012 (2) SCC 684 decided on 03.02.2012 by Supreme
Court in which it has been held that on the date of incident
victim was seven years age and accused was in the age of 18/19
years and that the incident occurred ten years ago, the award of
life imprisonment which is maximum prescribed was not
warranted and also in view of the mandate of Section 376 (2)(f)
I.P.C., the court felt that the ends of justice would be met by
imposing rigorous imprisonment for ten years. The appellant had
already served nearly ten years. The sentence of life
imprisonment was modified to rigorous imprisonment for ten
Rajendra Datta Zarekar Vs. State of Goa, (2007) 14 SCC
560, the victim was aged about six years and the accused was
aged about 20 years. Ultimately, the Supreme Court confirmed
the conviction and sentence of 10 years as awarded by the High
Court. However, the fine amount of Rs.10,000/- awarded under
Section 376 (2)(f) being found to be excessive was reduced to
Learned A.G.A. submitted that accused appellant should be
punished severely without relaxation. The offence of rape is
serious offence. The physical scar may heal, but the mental scar
will always remain. When a woman is ravished, what is inflicted
is not merely physical injury but the deep sense of some
deathless shame. Judicial response to human rights cannot be
blunted by legal jugglery. A girl of 14 years who is raped is not
an accomplice. The measure of punishment in a case of rape
cannot depend upon the social status of the victim or that
accused. It must depend upon the conduct of the accused, the
state and age of the sexually assaulted female and the gravity of
the criminal act. Crimes of violence upon women need to
severely dealt with. Protection of society and deterring the
criminal is the avowed object of law and this is required to be
achieved by imposing appropriate sentence. The sentencing
Courts are expected to consider all relevant facts and
circumstances bearing on the question of sentence and proceed
to impose a sentence commensurate with the gravity of the
offence. The court must hear the loud cry for justice by the
society in cases of the heinous crime of rape on innocent helpless
girl of tender years. Public abhorrence of the crime needs
reflection through imposition of appropriate sentence by the
court. To show mercy in the case of such heinous crime would be
travesty of justice and the plea for leniency is wholly misplaced.
It is admitted fact that at the time of incident the
prosecutrix was about 14 years and accused was 19 years. At the
time of incident accused was married person and prosecutrix
married later on and is leading a peaceful married life. The
appellant is at present 32 years and is incarceration for 13 years
for charge under Section 376(G) I.P.C. So in the present facts
and circumstances and the law laid down by the Apex Court, we
are of the view that in the present case life imprisonment would
be excessive punishment and punishment for 13 years would be
adequate punishment which the appellant has already served
out. Therefore the sentence is reduced to R.I. 13 years in place
of life imprisonment. We feel that ends of justice would suffice by
imposing R.I. for 13 years which has been served by the
appellant already. However, fine amount of Rs.5000/- being
found to be excessive reduced to Rs.3000/- in default, to further
undergo R.I. for one month.
In view of the above discussion the conviction imposed on
the appellant herein is confirmed. However, the sentence of life
imprisonment is modified to R.I. for 13 years with a fine of
Rs.3000/- in default of further undergo R.I. for one month. The
conviction and sentence imposed on the appellant under Section
506 I.P.C. is confirmed. All the sentences shall run concurrently.
With the above modification of sentence, the appeal stands
disposed of.
Office is directed to send copy of this judgment alongwith
original record to the Court concerned for necessary action and
compliance in accordance with law. | The Allahabad High Court on Friday modified the sentence of Life Imprisonment awarded to a 32-Year-Old Rape convict to Rigorous Imprisonment for 13 years, which the convict has already served out.The Bench of Justice Suneet Kumar and Justice Om Prakash Tripathi ordered thus while observing that at the time of the incident, the prosecutrix was about 14 years and the convict was a...
The Allahabad High Court on Friday modified the sentence of Life Imprisonment awarded to a 32-Year-Old Rape convict to Rigorous Imprisonment for 13 years, which the convict has already served out.
The Bench of Justice Suneet Kumar and Justice Om Prakash Tripathi ordered thus while observing that at the time of the incident, the prosecutrix was about 14 years and the convict was a 19-year-old, married man. The Court also noted that the prosecutrix married later on and is leading a peaceful married life.
Essentially, the Court was dealing with a criminal appeal preferred by Rape-Convict Bhura against the 2013 judgment and order passed by Additional Sessions Judge, Meerut under Section 376G and 506 I.P.C.
The Additional Sessions Judge, Meerut had convicted and sentenced the appellant/convict to undergo imprisonment for life under Section 376G I.P.C.
In the appeal, the High Court perused the judgment and order of the Trial Court, took into account the evidence adduced, and thereafter, came to a conclusion that on the basis of fully reliable evidence, the prosecution had proved beyond reasonable doubt that accused Bhura @ Bhure had committed rape with prosecutrix on March 3, 2009, when she had gone to attend the nature's call.
Thus, the HC held that the trial court had rightly held the accused guilty for the charges under Section 376(G) and 506 I.P.C and therefore, the HC confirmed the conviction of the appellant.
Further, the Court took into account the submission of the appellant that at the time of the incident, he was 19 years of age, he is labor and had been in incarceration for about 13 years and at present, he is 32 years and that he is a married person and also that Prosecutrix has also married and living peaceful happy married life.
In view of this, the Court referred to Apex Court's ruling in the cases of Dinesh @ Buddha Vs. State of Rajasthan, 2006 Lawsuit SC 162, [email protected] Ambalal Thakore Vs. State of Gujarat 2012 (2) SCC 684 and Rajendra Datta Zarekar Vs. State of Goa, (2007) 14 SCC 560, to come to the following conclusion of modifying LI to RI of 13 Years:
"It is admitted fact that at the time of incident the prosecutrix was about 14 years and accused was 19 years. At the time of incident accused was married person and prosecutrix married later on and is leading a peaceful married life. The appellant is at present 32 years and is incarcerated for 13 years for charge under Section 376(G) I.P.C. So in the present facts and circumstances and the law laid down by the Apex Court, we are of the view that in the present case life imprisonment would be excessive punishment and punishment for 13 years would be adequate punishment which the appellant has already served out. Therefore the sentence is reduced to R.I. 13 years in place of life imprisonment. We feel that ends of justice would suffice by imposing R.I. for 13 years which has been served by the 12 appellant already."
In view of this, the conviction imposed on the appellant was confirmed. However, the sentence of life imprisonment was modified to R.I. for 13 years with a fine of Rs.3000/- in default of further undergoing R.I. for one month. The conviction and sentence imposed on the appellant under Section 506 I.P.C. was also confirmed.
Case title - Bhura v. State of U.P.Case citation: (All) 110 |
The petitioner, a widow, aged 73 years knocks the doors
of this Court, alleging lack of sympathy or even empathy, on
the part of the respondent/Canara Bank, a State under Article
12 of the Constitution of India (‘the Bank’ for short) in
recovering Rs.6,40,329/- from out of the family pension
account of the petitioner and seeks a direction by issuance of a
writ in the nature of mandamus, directing re-credit of the said
2. Heard Sri Yogesh Naik, learned counsel for Sri B.O.Anil
Kumar, learned counsel appearing for the petitioner and
WP No. 20321 of 2021
Sri T.P.Muthanna, learned counsel appearing for
3. Shorn of unnecessary details, the facts in brief, are as
The petitioner is an account holder in the
respondent/Bank and is a recipient of family pension from its
hands. The husband of the petitioner one R.V.Pawar was
working as a Technical Assistant Executive Engineer at Chief
Engineer, C & B (S) Office, Government of Karnataka and
retired from service on 31.05.2002. The said Government
servant was having a regular pension account at
Vishveshwarnagar Branch, Hubli of the erstwhile Syndicate
Bank, which is now merged with the Bank. Till the end of
February, 2019 R.V.Pawar was recipient of pension of
Rs.38,604/- from the Branch. On centralization of pension
from March 2019, the Centralized Pension Processing Centre
(‘CPPC’ for short) started making payment of pension to the
pension holders. The account of the husband of the petitioner,
which was at Hubli was later transferred to Kasturinagar
WP No. 20321 of 2021
Branch, Bangalore. Thereafter, the husband of the petitioner
was being paid through Kasturinagar Branch from the CPPC.
4. From March 2019, the husband of the petitioner
appears to have been paid Rs.96,998/- per month in place of
Rs.38,604/-, which resulted in excess payment of pension of
Rs.13,40,261/- upto 6th February, 2021, the date on which the
husband of the petitioner dies. Therefore, there was an excess
payment into the account of the husband of the petitioner from
March, 2019 to 06-02-2021. The husband of the petitioner dies
on 06.02.2021. After the death of the husband of the
petitioner, family pension as payable to the petitioner was not
immediately processed. The petitioner represented for
payment of family pension. What the petitioner would get back
is a communication that excess pension has been paid to the
husband of the petitioner and later an order of refund of
Rs.13,40,261/- came to be passed against the petitioner. The
petitioner again pleaded that she was not aware of the deposits
made into the account of her husband and she being 73 years
old cannot come to the Bank during the pandemic and sought
to seek pension. What comes about is debit of Rs.6,40,000/-
WP No. 20321 of 2021
from family pension account of the petitioner without even any
communication on intermittent intervals. The petitioner
complains to the Bank that the debits are unauthorized and
then knocks the doors of this Court in the subject petition
seeking re-credit of the alleged unauthorized debits.
5. The learned counsel appearing for the petitioner would
submit that the petitioner was not aware of what the problem
was but did admit that if there is any excess payment that has
come to the account of the husband of the petitioner, she
would clear it but not in one go. However, the Bank did not
accede to her request and on intermittent intervals had debited
Rs.6,40,000/- from family pension amount and it is not even
paying any family pension to the petitioner.
6. On the other hand, the learned counsel appearing for
the respondent/Bank, Sri T.P.Muthanna, would vehemently
refute the submissions to contend that the petitioner is in
receipt of unjust enrichment as the husband of the petitioner
did very well know the amount that was being paid as pension
and its threefold increase immediately. The increase was on
WP No. 20321 of 2021
account of certain mistake in the CPPC, where excess amount
of pension was deposited into the account of the husband of
the petitioner. Therefore, the petitioner cannot contend that no
amount should be debited from her account as excess pension
was deposited to the account of the husband of the petitioner.
Whether the petitioner being aware of the deposit or not,
cannot be a ground to deny refund of the entire excess amount
as it is public money.
7. I have given my anxious consideration to the
submissions made by the respective learned counsel and
perused the material on record.
8. The afore-narrated facts are not in dispute. The
husband of the petitioner who was an employee of Government
of Karnataka retires on 31-05-2002 and his pension account
was being handled by the Syndicate Bank and later on, its
merger with the respondent/Bank. The husband of the
petitioner was getting Rs.38,604/- as pension upto February,
2019 and on account of reckless or callous functioning of the
Officers of the Bank in CPPC, the pension of the husband of the
WP No. 20321 of 2021
petitioner goes up from 38,604/- to Rs.96,988/-. This continues
from March 2019 to 06-02-2021 close to two years. The
husband of the petitioner dies on 06.02.2021. Thereafter, the
petitioner who becomes entitled to family pension, seeks such
payment from the hands of the respondent/Bank. What the
petitioner would get in return to her request is a
communication dated 06-08-2021 enclosing intimation dated
14-07-2021, both of which read as follows:
Reg: Excess pension paid to late Ramanath V.Pawar.
With regard to above we have received a copy of the
letter from CPPC issued to you with a copy to us. As we
did not receive any reply from you, on enquiry you
informed CPPC that you have not received any letter so
far they asked us to call you and obtain acknowledgment.
In spite of our repeated request you have not come to
branch to collect the letter copy and in the mean time we
have sent the same to your daughters e-mail id a copy.
Now once again we are sending a hard copy.
WP No. 20321 of 2021
Now we request you to submit the reply regarding the
payment of Excess Pension which you have to repay at
the earliest.
Kindly make the arrangements for refund of excess
payment immediately.
Intimation of Excess pension payment-Recovery.
Dear sir/Madam,
Reg: Refund of excess pension received by your spouse
Lt. Mr.R.V.Pawar to the extent of Rs.1340261/-
under PPO No.223614/RPR.
We note that you are one of our valued Pensioner
with PPO No. 223614/RPR, drawing pension from
our Kasturinagar Branch, through SB account
No.12042200010508. It is observed that an amount
of Rs.1340261/- (Thirteen lakhs forty thousand
two hundred and sixty one only) was paid in excess
of the eligibility to your spouse Lt.Mr. R.V.Pawar
from March 2019 to 6th of February 2021 (Till date
of death).
We request you to make arrangements for refund
of excess payment immediately.”
(emphasis added)
The petitioner replies to the said communications on
07-09-2021. The reply reads as follows:
Subject: Refund of Excess Pension paid to my late
husband Mr. R.V.Pawar.
With reference to the above subject, I undersigned Mrs.
Vimala Ramnath Pawar acknowledge the receipt of your
recovery letter dated 14-07-2021.
I received the letter on 6-08-2021 and have replied on
9.08.2021 asking for time to reply after getting some
advice and ascertaining facts.
On 8-07-2021 without any intimation or
information my family pension account, my
husband’s account and another joint account was
abruptly put on hold. On each account a sum of
Rs.5,00,000/- (5 lakh rupees) was put on hold and
even now currently my account is put on hold
As a matter of fact, on 3-05-2021 I had written a
letter to Branch Manager Kasturi Nagar and has
requested them to check and intimate me why the
family pension fixed was so meager when
compared to my husband’s pension. I occasionally
followed it up and waited for a reply but was in
utter shock when abruptly all the accounts were
WP No. 20321 of 2021
put on hold immediately without any information.
Instead of getting a reply on status from bank, my
account was put on hold.
I am under great mental distress, and pressure that due
to some banking error excess pension was paid to my
late husband and now the same will be recovered from
me through my family pension which in itself is not
sufficient to maintain myself. The pension being
disbursed every month currently is Rs.13055/- which I
have not even withdrawn a single time. My husband
passed away 7 months ago on 6-02-2021.
The joint account I have with my daughter and my late
husband was also put on hold and an amount of
Rs.200000/- has been debited from bank without our
consent. The ledger balance shows Rs.2,19,420/- but the
available balance is only Rs.19,420/-.
With great grief I would like to submit that I am not able
to clear the balance at once. Also, a large amount has
been deducted as TDS which my husband has not
My late husband was a dementia patient who was on
complete assistance and needed full support for his daily
activities. And moreover, he had written several times for
enhanced pension and other benefits to various
government departments.
I need more time to collate his papers, make enquiries
with government departments and I am also trying to
arrange some funds through relatives if possible, to make
some part payment. However, I request you to un hold
my account and give me access to operate it so that I am
take care of my basic daily/monthly needs.
How can bank suddenly put my account on hold and
immediately demand a recovery. As per your letter
the excess amount was paid over a period of two
WP No. 20321 of 2021
years to my husband. Is it fair to stop my family
pension and deprive me completely by putting my
account on hold.
Please let me know how I should sustain myself,
pay my grocery bills, medical bills and day to-day
expenses. Currently I am dependent on my
relatives who have lent me a few thousand rupees.
I am in such pitiful state. In case of my medical
emergency, I will be stranded and helplessly left
with no treatment.
I did not anticipate that bank can be so inhumane
to me. I am 73 year old women who is already
going through hardships mentally, physically and
emotionally after my husband’s death. How can this
act of Bank be justified.
Kindly release my account and give me access to my
family pension for my survival.”
(emphasis added)
The petitioner narrates that without any intimation, from her
family pension account a sum of Rs.5,00,000/- is put on hold
and she pleads that she is in great mental distress and excess
amount is not deposited due to the fault of the husband of the
petitioner to his account but if recovery is made from her
account in that regard she would face lot of problems to
maintain herself. The family pension was only Rs.13,055/- and
she was not permitted to draw that even once and later also,
without any communication, the Bank has unauthorisedly
WP No. 20321 of 2021
debited Rs.2,00,000/-. In this manner, the Bank has harassed
the petitioner for 7 months after the death of her husband for
certain act that she is not even aware of.
8. For the folly of the officers of the Bank in depositing
excess amount, the 73 years old widow is being made to move
from pillar to post for getting a meager sum of Rs.13,055/- as
family pension and the Bank is also unauthorisedly seeking to
debit Rs.6,40,000/- from the money that is lying in the
account. The petitioner pleads that it has become difficult to
sustain herself and her grocery bills and medical bills have all
been left unpaid and she is in a pitiful state. This state of affairs
does not even move the Bank and unauthorized debit
9. The learned counsel for the respondent/Bank would
contend that the Master Circular for disbursement of
Government Pension by agency banks permits such recovery in
terms of Clause 13, which reads as follows:
“Recovery of Excess/wrong payment made to a
WP No. 20321 of 2021
13. Details of the uniform procedure evolved for recovery
of excess/wrong payments made to pensioners drawing
pension under the Scheme for payment of pension to
Central/Civil/Defence/Railways pensioners through
agency banks, are given below:
(a) As soon as the excess/wrong payment made to a
pensioner comes to the notice of the paying branch,
the branch should adjust the same against the
amount standing to the credit of the pensioner’s
account to the extent possible including lumpsum
arrears payment.
(b) If the entire amount of overpayment cannot be
adjusted from the account, the pensioner may be
asked to pay forthwith the balance amount of
overpayment.
(c) In case the pensioner expresses his inability to pay
the amount, the same may be adjusted from the
future pension payments to be made to the
pensioners. For recovering the overpayment made
to pensioner from his future pension payment in
installments 1/3rd of net (pension + relief) payable
each month may be recovered unless the pensioner
concerned gives consent in writing to pay a higher
installment amount.
(d) If the overpayment cannot be recovered from
the pensioner due to his death or
discontinuance of pension then action has to
be taken as per the letter of undertaking given
by the pensioner under the scheme.
(e) The pensioner may also be advised about the
details of over payment/wrong payment and mode
of its recovery.”
He would place reliance upon sub-clause (d) of Clause 13, that
if overpayment cannot be recovered from the pensioner due to
his death or discontinuance of pension, then action has to be
taken as per the letter of undertaking given by the pensioner
under the Scheme. Though recovery of excess amount is
permitted in terms of the Master Circular, which depicts
uniform recovery of wrong payments made to pensioners
drawing pension, that would not mean that the amount that is
paid in excess is to be recovered in one stroke that too, from
the petitioner who is a widow depending on family pension and
is suffering from ailments at the age of 73 years. The Officers
of the Bank who have indulged in such callous or reckless
transfer of excess pension to the account of the husband of the
petitioner should be made/held accountable for such act. It is
for the Bank to take such appropriate action against those
erring officers / officials and fix accountability, in accordance
with law.
10. Pension, is trite, not a bounty or a gratis that is
granted to the pensioner or the spouse of the pensioner as a
family pension, for the Bank to deal with it at its whim and
WP No. 20321 of 2021
fancy. It is to be noticed that the husband of the petitioner is
not an employee of the Bank. He has only his account in the
Bank. Pension is deposited rightly in the CPPC. The State
Government has not paid any excess pension to the husband of
the petitioner. It is the irresponsibility of the Officers of the
Bank, which has led to such over payment. Therefore, to
generate a balance in the facts and circumstances becomes
necessary. The amount that is deposited into the account of the
husband of the petitioner is neither the money belonging to the
callous officers nor the money that belonged to the husband of
the petitioner. It is “public money”. Therefore, I deem it
appropriate to permit recovery of the amount in equal monthly
installments of Rs.4,000/- (Rupees four thousand only) from
the hands of the petitioner.
11. For the aforesaid reasons, I pass the following:
(i) Writ Petition is allowed.
(ii) A mandamus shall issue to the respondent/Bank to
re-credit the amount that is recovered i.e.,
WP No. 20321 of 2021
Rs.6,40,000/- or whatever, from the account of the
petitioner, within two weeks from the date of
receipt of a copy of this order and also pay
appropriate pension without any deductions on this
issue.
(iii) The Bank is at liberty to recover Rs.4,000/- every
month from the family pension of the petitioner till
the alleged excess amount deposited in the account
of the husband of the petitioner gets cleared. | The Karnataka High Court has said that though recovery of excess amounts paid by banks to pensioners is permitted, that would not mean that the excess is to be recovered in one stroke. Such amount may be recovered in monthly installments, it said.
A single judge bench of Justice M Nagaprasanna was hearing the case of a 73-years-old widow aggrieved by the action of Canara Bank which debited Rs. 6,40,000 from her family pension account without even any communication.
The bench observed that the Bank had paid Rs.96,998/- per month as pension to her husband instead of Rs.38,604/- for approximately two years. This led to excess payment of Rs.13,40,261/-. The mistake was realized following the demise of her husband and thereafter, the Bank passed a recovery order against the widow, stalled processing her family pension and debited the aforementioned amount.
"The Bank has harassed the petitioner for 7 months after the death of her husband for a certain act that she is not even aware of...it has become difficult to sustain herself and her grocery bills and medical bills have all been left unpaid and she is in a pitiful state. This state of affairs does not even move the Bank and unauthorised debit continues," the High Court observed at the outset.
The Bank argued that the Petitioner is in receipt of "unjust enrichment" and that her husband very well knew about the inadvertent threefold increase in the amount being paid as pension. The increase was on account of certain mistakes in the CPPC...whether the petitioner is aware of the deposit or not, cannot be a ground to deny refund of the entire excess amount as it is public money, the Bank claimed.
The High Court then clarified that though recovery of excess amount is permitted in terms of the Master Circular for disbursement of Government Pension, that would not mean that the amount that is paid in excess is to be recovered in one stroke that too, from the petitioner who is a widow depending on family pension and is suffering from ailments at the age of 73 years. "Pension is not a bounty or a gratis that is granted to the pensioner or his family for the Bank to deal with it at its whim and fancy," it remarked.
The Court thus directed the bank to re-credit the amount to the petitioner's family pension account within two weeks and also pay appropriate pension without any deductions on this issue. It permitted recovery of the amount in equal monthly instalments of Rs.4,000/- from the hands of the petitioner.
The Court also suggested that appropriate action be taken against the erring Bank officials by fixing accountability as per law. "The Officers of the Bank who have indulged in such callous or reckless transfer of excess pension to the account of the husband of the petitioner should be made/held accountable for such act."
Case Title: VIMALA RAMANATH PAWAR v. SENIOR MANAGER, CENTRALISED PENSION PROCESSING CENTRE & Others
Case No: WRIT PETITION NO. 20321 OF 2021
Date of Order: 27TH DAY OF OCTOBER, 2022
Appearance: Advocate YOGESH NAIK, FOR B.O.ANIL KUMAR., ADVOCATE for petitioner; T.P.MUTHANNA, ADVOCATE for respondent. |
Sukhlal Biruly, son of late Lakhan Biruly, age 62 years, resident of Village
Singhbhum (Jharkhand), presently residing at Qr. No.SRT-280, ACC
Colony, PO and PS Jhinkpani, District West Singhbhum ….. Petitioner
2.Kamla Devi, wife of late Chokro Purty, resident of village Gitilpi, PO
3.Jagmohan Sawaiyan, son of late Dhan Singh Sawaiyan, resident of
village Gitilpi, PO Chaibasa, PS Chaibasa Mufassil, District West Singhbhum
For the Petitioner :- Mr. Krishanu Ray, Advocate
For the O.P.No.2 :- Mr. Anjani Kumar, Advocate
For the O.P.No.3 :- Mr. Ajay Kumar Sah, Advocate
For the State :- Mrs. Nehala Sharmin, APP
6/04.05.2022 This petition has been heard through Video Conferencing in
view of the guidelines of the High Court taking into account the situation
arising due to COVID-19 pandemic. None of the parties have complained
about any technical snag of audio-video and with their consent this
matter has been heard.
This petition has been filed for quashing the order dated
23.9.2017 passed in Criminal Revision No.30 of 2017, whereby the
learned Sessions Judge, West Singhbhum at Chaibasa has been pleased
to dismiss the criminal revision preferred by the petitioner on the ground
that the petitioner was not a party to the proceeding in connection with
which the revision application was preferred and also for quashing the
order dated 09.5.2017 passed in Misc. Case No.57 of 2016 instituted in
terms of section 107 of the Cr.P.C whereby learned Sub Divisional
Magistrate, Sadar, Chaibasa has been pleaded to direct the Circle Officer
to effect delivery of possession of the property in question in favour of
the O.P.nos.2 and 3.
Mr. Krishany Ray, the learned counsel appearing on behalf
of the petitioner submits that a proceeding under section 107 Cr.P.C was
instituted on 22.09.2016 against the O.P.no.3 by O.P.no.2. He submits
that that the petitioner is owner of the land in question as he has
purchased the land in question from O.P.no.3 vide sale deed dated
31.08.2015 contained at Annexure-1 to the petition. He submits that
order has been passed under section 107 Cr.P.C by which possession has
been put into to the O.P.No.2. he submits that, that power is not there to
the learned Magistrate to put into possession. By way of referring section
107 Cr.P.C, he submits that the learned court is only required to look into
that if any breach of peace or any disturbance is there, he can order to
execute a bond for one year only and by the impugned order the
possession has been given to the O.P.no.2. He submits that it is not in
the light of section 107 Cr.P.C. He further submits that section 107 Cr.P.C
was considered by the Hon’ble Supreme Court in the case of “Madhu
Limaye v. Sub-Divisional Magistrate”, (1970) 3 SCC 746 and he relied on
paragraph nos.32, 33 and 35 of the said judgment, which are quoted
“32. The gist of Section 107 may now be given. It
enables certain specified classes of Magistrates to
make an order calling upon a person to show cause
why he should not be ordered to execute a bond,
with or without sureties for keeping the peace for
such period not exceeding one year as the
Magistrate thinks fit to fix. The condition of taking
action is that the Magistrate is informed and he is of
opinion that there is sufficient ground for
proceeding that a person is likely to commit a
breach of the peace or disturb the public tranquilly
or to do any wrongful act that may probably
occasion a breach of the peace or disturb the public
tranquillity. The Magistrate can proceed if the
person is within his jurisdiction or the place of the
apprehended breach of the peace or disturbance is
within the local limits of his jurisdiction. The section
empowered to take action, to record his reason for
acting, and then to order the arrest of the person (if
not already in custody or before the court) with a
empowered to deal with the case, together with a
copy of his reasons. The Magistrate before whom
such a person is sent may in his discretion detain
such person in custody pending further action by
33. The section is aimed at persons who cause a
reasonable apprehension of conduct likely to lead to
a breach of the peace or disturbance of the public
tranquillity. This is an instance of preventive justice
which the courts are intended to administer. This
provision like the preceding one is in aid of orderly
society and seeks to nip in the bud conduct
subversive of the peace and public tranquillity. For
this purpose Magistrates are invested with large
judicial discretionary powers for the preservation of
public peace and order. Therefore the justification
for such provisions is claimed by the State to be in
the function of the State which embraces not only
the punishment of offenders but, as far as possible,
the prevention of offences.
35. We have seen the provisions of Section 107.
That section says that action is to be taken ‘in the
manner hereinafter provided’ and this clearly
indicates that it is not open to a Magistrate in such a
case to depart from the procedure to any substantial
extent. This is very salutary because the liberty of
the person is involved and the law is rightly
solicitous, that this liberty should only be curtailed
according to its own procedure and not according to
the whim of the Magistrate concerned. It behoves
us, therefore, to emphasise the safeguards built into
the procedure because from there will arise the
consideration of the reasonableness of the
restrictions in the interest of public order or in the
interest of the general public.”
Looking to section 107 Cr.P.C., it is crystal clear that the
Magistrate can proceed if the person is within his jurisdiction or the place
of the apprehended breach of the peace or disturbance is within the local
limits of his jurisdiction and only to that effect the Magistrate can pass
the order under section 107 Cr.P.C. Under section 107 Cr.P.C., the
Magistrate is not empowered to put possession to any person and it is
done by order dated 09.5.2017 which is not the spirit of section 107
Cr.P.C. The entire order sheet has been annexed with the petition and it
transpires that the case was registered on 22.9.2016 and by the next
order dated 09.05.2017 without calling to file show cause on behalf of
the other parties, the order has been passed which is again without
following the due process of law as without considering the show cause
the said order has been passed. The order is passed without jurisdiction.
If any illegality is going on, the said cannot be allowed to continue
further. In revisional order the learned court has dismissed the petition
on the ground that the petitioner is barred by time and the petitioner is
not party in the proceeding. The sale deed annexed with the petition
suggest that the petitioner has purchased the land in question. It was
incumbent upon the O.P.No.2 to made the petitioner party in the petition
which has not been done by the O.P.no.2 and in absence of the petitioner
the order has been passed that does not mean that the petitioner is not
entitled to challenge the said order if the right is being infringed in such a
Accordingly, impugned orders dated 23.9.2017 passed in
Criminal Revision No.30 of 2017 passed by learned Sessions Judge, West
Singhbhum at Chaibasa and 09.05.2017 passed in Misc. Case No.57 of
2016 passed by learned Sub Divisional Magistrate, Sadar, Chaibasa are
set aside.
Cr.M.P. No.1045 of 2018 is allowed and disposed of.
I.A., if any, also stands disposed of. | The Jharkhand High Court has recently observed that a Magistrate is not empowered to give effect to delivery of possession of the property under section 107 Cr.P.C.
The observation came from Justice Sanjay Kumar Dwivedi:
"Looking to section 107 Cr.P.C., it is crystal clear that the Magistrate can proceed if the person is within his jurisdiction or the place of the apprehended breach of the peace or disturbance is within the local limits of his jurisdiction and only to that effect the Magistrate can pass the order under section 107 Cr.P.C. Under section 107 Cr.P.C., the Magistrate is not empowered to put possession to any person and it is done by order dated 09.5.2017 which is not the spirit of section 107."
The petition was filed seeking quashing of Sessions Judge order whereby dismiss the criminal revision preferred by the petitioner on the ground that the petitioner was not a party to the proceeding in connection with which the revision application was preferred and also for quashing the order dated 09 May, 2017 passed in Misc. Case No.57 of 2016 instituted in terms of section 107 of the Cr.P.C whereby learned Sub Divisional Magistrate, Sadar, Chaibasa has been pleaded to direct the Circle Officer to effect delivery of possession of the property in question in favour of the O.P.nos.2 and 3.
Counsel for appellant argued that the petitioner is owner of the land in question as he has purchased the land in question from O.P.no.3 vide sale deed dated 31 August, 2015 contained at Annexure-1 to the petition. He submitted that the magistrate did not have power to pass an order under section 107 Cr.P.C by which possession has been put into to the O.P.No.2.
Further he argued that the court is only required to look into that if any breach of peace or any disturbance is there, he can order to execute a bond for one year only and by the impugned order the possession has been given to the O.P.no.2.
The Court after hearing the counsels and perusing documents on record noted that as per the impugned order sheet the case was registered on 22.9.2016 and by the next order dated 09 May, 2017 without calling to file show cause on behalf of the other parties, the order has been passed which is again without following the due process of law as without considering the show cause the said order has been passed.
Court said that the order is without jurisdiction and that if any illegality is going on, the said cannot be allowed to continue further. Further it was observed that in revisional order the court has dismissed the petition on the ground that the petitioner is barred by time and the petitioner is not party in the proceeding. The sale deed annexed with the petition suggest that the petitioner has purchased the land in question.
"It was incumbent upon the O.P.No.2 to made the petitioner party in the petition which has not been done by the O.P.no.2 and in absence of the petitioner the order has been passed that does not mean that the petitioner is not entitled to challenge the said order if the right is being infringed in such a way."
Accordingly, the Sessions order was set aside.
Case Title: Sukhlal Biruly v. The State of Jharkhand and Ors. |
HIGH COURT OF JUDICATURE FOR RAJASTHAN
1. D.B. Special Appeal Writ No. 341/2022
Prakash Chand Saini S/o Shri Shyam Lal Saini, Aged About 53
Years, R/o Near Govt. Sardar Senior Secondary School,
Buchaheda, Ward No. 16, Kotputli, District Jaipur.
1. State Of Rajasthan, Through Principal Secretary,
Department Of Local Self Government, Secretariat, Jaipur.
2. State Of Rajasthan, Through Principal Secretary, Urban
Development And Housing Department, Secretariat,
Jaipur.
3. Director And Joint Secretary, Department Of Local Self
Government, Government Of Rajasthan, Jaipur.
4. Municipal Board, Kotputli, Through Chief Municipal Officer,
Kotputli, District Jaipur.
5. Executive Officer, Municipal Board - Kotputli, Kotputli,
District Jaipur.
2. D.B. Special Appeal Writ No. 342/2022
Pushkarmal Saini S/o Shri Bhuramal Saini, Aged About 79
Years, R/o Govt. Sardar Senior Secondary School, Buchaheda,
Ward No. 16, Kotputli, District Jaipur.
1. State Of Rajasthan, Through Principal Secretary,
Department Of Local Self Government, Secretariat,
Jaipur.
2. State Of Rajasthan, Through Principal Secretary, Urban
Development And Housing Department, Secretariat,
Jaipur.
3. Director And Joint Secretary, Department Of Local Self
Government, Government Of Rajasthan, Jaipur.
4. Municipal Board, Kotputli, Through Chief Municipal
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(2 of 5) [SAW-341/2022]
Officer, Kotputli, District Jaipur.
5. Executive Officer, Municipal Board - Kotputli, Kotputli,
District Jaipur.
3. D.B. Special Appeal Writ No. 343/2022
Hari Prasad Sharma S/o Lt. Shri Badri Prasad Sharma, Aged
About 55 Years, Resident Of Sarund, Tehsil Kotputli, District
Jaipur.
1. State Of Rajasthan, Through Principal Secretary,
Department Of Local Self Government, Secretariat,
Jaipur.
2. State Of Rajasthan, Through Principal Secretary, Urban
Development And Housing Department, Secretariat,
Jaipur.
3. Director And Joint Secretary, Department Of Local Self
Government, Government Of Rajasthan, Jaipur.
4. Municipal Board, Kotputli, Through Chief Municipal
Officer, Kotputli, District Jaipur.
5. Executive Officer, Municipal Board - Kotputli, Kotputli,
District Jaipur.
4. D.B. Special Appeal Writ No. 344/2022
Ratiram Saini S/o Shri Fatehchand Saini, Aged About 41 Years,
R/o Amarpura Nayi Kothi, Tehsil Kotputli, District Jaipur.
1. State Of Rajasthan, Through Principal Secretary,
Department Of Local Self Government, Secretariat,
Jaipur.
2. State Of Rajasthan, Through Principal Secretary, Urban
Development And Housing Department, Secretariat,
Jaipur.
3. Director And Joint Secretary, Department Of Local Self
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(3 of 5) [SAW-341/2022]
Government, Government Of Rajasthan, Jaipur.
4. Municipal Board, Kotputli, Through Chief Municipal
Officer, Kotputli, District Jaipur.
5. Executive Officer, Municipal Board - Kotputli, Kotputli,
District Jaipur.
For Appellant(s) : Mr. Kamlakar Sharma (Sr. Advocate)
with Mr. Archit Bohra, Ms. Lipi Garg
and Ms. Aastha Singhal
For Respondent(s) : Mr. Anil Mehta, AAG with
1. These appeals arise out of the common judgment of the
learned Single Judge dated 07.01.2022. The appellants-original
petitioners had challenged the action of the municipal authorities
of Kotputli issuing notice dated 14/15.12.2021 and public notice
dated 23.12.2021. By the impugned judgment the learned Single
Judge allowed the petitioners to raise objections to the said
notices upon which the Nagar Palika would decide the objections
by a speaking order within a period of 30 days. Against this
judgment the petitioners have filed these appeals.
2. Ordinarily since the order passed by the learned Single Judge
does not take away any of the rights of the appellants-petitioners,
we would not have examined these appeals any further. However
learned counsel for the appellants vehemently contended that the
Nagar Palika has issued eviction notices to the occupants of the
area who are occupying these premises on lawful basis since long
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and the notice threatens the occupants with demolition if
occupation is not withdrawn voluntarily. On such basis we have
issued notice to Nagar Palika. Mr. Anil Mehta, AAG appearing for
the Nagar Palika stated that the Nagar Palika intends to widen the
road. He submitted that some of the occupants have caused
encroachments. Accordingly notices dated 14/15.12.2021 were
issued. He further brought to our notice that under a general
public notice dated 23.12.2021 the Nagar Palika asked all the
occupants within the road land to remove their structures failing
which there would be a demolition. He could not controvert the
averments of the appellants-petitioners that no procedure for
acquisition on private lands has been undertaken by Nagar Palika.
3. Under the circumstances we are of the opinion that those
petitioners-occupants to whom the notice dated 14/15.12.2021 or
such similar notices have been served, they must file their replies.
If according to them they have not encroached on any part of the
private land it would be open for them to point out the same to
the authorities. However the public notice dated 23.12.2021 is bad
in law and requires all and sundry to withdraw the occupation
failing which there would be demolition of structures. This does
not make a distinction between a person who has caused
encroachment and why he was occupying the premises in unlawful
terms. Counsel for the Nagar Palika agreed that no proceedings
for acquiring such private properties either through private
negotiations or compulsory acquisition has been undertaken. The
municipality cannot demolish such structures.
4. Under these circumstances appeals are disposed of with
following directions:-
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1. Any of the appellants-original petitioners who
may have received the said notice dated
14/15.12.2021 may file objections before the
authorities. If no objection is raised, the same be
done within a period of 30 days from today. The
objection which have already been received or
those may be received 30 days thereafter be
disposed of by the authorities by a speaking order
as desired by the learned Single Judge.
2. Public notice dated 23.12.2021 is quashed.
5. Learned counsel for the appellants submitted that
subsequently the municipality has amended Rajasthan Municipality
Act, 2009 and inserted Section 73B therein. Since these are
developments which took place after the disposal of the writ
petitions and since Section 73B of the Act is not under challenge,
the course of these appeals would not change on account of these
developments. It is always open for the appellants to take
recourse of appropriate remedy if fresh cause of action has arisen.
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Powered by TCPDF (www.tcpdf.org) | The Rajasthan High Court has quashed the public notices for demolition issued by Nagar Palika asking all the occupants within the Kotputli road land to remove their structures. A division bench of Chief Justice Akil Kureshi and Justice Sudesh Bansal, ordered, "1. Any of the appellants-original petitioners who may have received the said notice dated 14/15.12.2021...
The Rajasthan High Court has quashed the public notices for demolition issued by Nagar Palika asking all the occupants within the Kotputli road land to remove their structures.
A division bench of Chief Justice Akil Kureshi and Justice Sudesh Bansal, ordered,
"1. Any of the appellants-original petitioners who may have received the said notice dated 14/15.12.2021 may file objections before the authorities. If no objection is raised, the same be done within a period of 30 days from today. The objection which have already been received or those may be received 30 days thereafter be disposed of by the authorities by a speaking order as desired by the learned Single Judge.
2. Public notice dated 23.12.2021 is quashed."
In the present matter, the writ petition was filed by the 25 individuals, all residents of Kotputli District in Jaipur, being aggrieved by the notices issued to them by the respondent-Nagar Palika, Kotputli dated 14/15.12.2021 as well as 23.12.2021 for removal of encroachments from the road. The respondent had demanded the documents from the petitioners of their lawful title over the disputed land. In the plea, it was averred that even though the petitioners have submitted their objections, the Nagar Palika, however, without considering their reply/ objections is going to demolish their construction.
In this regard, a single bench of the Rajasthan High Court, Jaipur Bench had directed the Nagar Palika, Kotputli to decide the objections submitted by 25 petitioners pursuant to the notices issued to them for removal of road encroachment.
Justice Inderjeet Singh had directed the authority to pass reasoned and speaking order within a period of 30 days.
"I deem it just and proper to direct the respondent-Nagar Palika to decide the objections submitted by the petitioners pursuant to the notice issued to them, by reasoned and speaking order within a period 30 days," the order stated.
Aggrieved by this, the appellants-original petitioners filed the present appeal.
Also Read: Demolition of Illegal Encroachment On Kotputli Road: Rajasthan High Court Orders Status Quo; Directs Local Authority to Pass Reasoned Order
The court opined that those petitioners-occupants to whom the notice dated 14/15.12.2021 or such similar notices have been served, must file their replies. If according to them they have not encroached on any part of the private land then it would be open for them to point out the same to the authorities, added the court. The court observed that the public notice dated 23.12.2021 is bad in law and requires all and sundry to withdraw the occupation failing which there would be demolition of structures.
In furtherance, the court observed that this does not make a distinction between a person who has caused encroachment and why he was occupying the premises in unlawful terms. The court noted that the counsel for the Nagar Palika agreed that no proceedings for acquiring such private properties either through private negotiations or compulsory acquisition had been undertaken. The court added that the municipality cannot demolish such structures.
The court observed that it would not have examined these appeals as the impugned order does not take away any of the rights of the appellants-petitioners.
The counsel for the appellants vehemently contended that the Nagar Palika has issued eviction notices to the occupants of the area who are occupying these premises on lawful basis since long and the notice threatens the occupants with demolition if occupation is not withdrawn voluntarily.
In contrast, Mr. Anil Mehta, AAG appearing for the Nagar Palika stated that the Nagar Palika intends to widen the road. He submitted that some of the occupants have caused encroachments and accordingly, notices dated 14/15.12.2021 were issued. He further stated that under a general public notice dated 23.12.2021, the Nagar Palika asked all the occupants within the road land to remove their structures failing which there would be a demolition.
On the issue of subsequent amendment of Rajasthan Municipality Act, 2009 and the insertion of Section 73B therein, the court observed that these are developments which took place after the disposal of the writ petitions and since Section 73B is not under challenge, the course of these appeals would not change on account of these developments. The court further made it open for the appellants to take recourse of appropriate remedy if fresh cause of action arises.
Sr. Adv. Kamlakar Sharma with Adv. Archit Bohra, Adv. Lipi Garg and Adv. Aastha Singhal appeared for the appellants, while Anil Mehta, AAG with Adv. Yashodhar Pandey appeared for the respondents.
Case Title: Prakash Chand Saini v. State Of Rajasthan |
Heard finally with the consent of learned Counsel for the
2. The appellant herein is convicted for the offences punishable
under Section 376(2)(f)(j)(i)(n) of the Indian Penal Code and sentenced
to suffer imprisonment for life and to pay fine of Rs.25,000/- in default
to suffer simple imprisonment for a period of one year.
3. The prosecution case in brief is as under :
A] On 02/12/2013, mother of the victim girl had lodged report
at police station Hudkeshwar, Nagpur alleging that victim is her
daughter. Father of the victim is not alive and informant who is the
mother had performed second marriage. The accused Harishchandra
Khanorkar whom she used to treat as her brother. She was working as a
domestic servant in the house of accused. Her daughter who is the
victim was staying with accused in his family consist of his daughter and
son. Informant further alleged that after she performed second
marriage, victim continued to stay along with the accused. Accused
admitted victim in the school and victim is now studying in the 11 th
standard. Before a month victim approached to her at her house on
28/11/2013 and complained about abdominal pain. She called the
accused and took victim in the hospital. It was revealed that the victim
is pregnant of 7 months. Therefore, she enquired with the victim and
victim disclosed to her that when she was in 9 th standard the accused
forcibly committed sexual intercourse with her. He used to touch her
body. Accused has repeated the act of sexual intercourse with her 3 to 4
times and she had conceived. Subsequently, victim delivered a child.
The child was given to Bal Kalyan Samiti and informant has lodged
report at Hudkeshwar police station on 02/12/2013. On the basis of
said report, police have registered the offence against the accused vide
4. After registration of the crime, Investigating Officer has
visited the alleged spot of incident and drawn the spot panchnama. He
also collected the blood samples of victim and her child in D.N.A. kit and
the blood samples of the accused in the D.N.A. kit and forwarded to
D.N.A. examination. He also collected the medical report of the victim
and after completion of investigation submitted charge-sheet against the
accused. The learned trial Court has framed the charge vide Exhibit 6.
The learned trial Court has recorded the evidence and found that the
prosecution has proved the charges and convicted the accused and
sentenced as mentioned hereinbefore. Hence, this appeal.
5. Heard Shri Dhore, learned Counsel for the appellant.
6. He submitted that the accused is falsely implicated in the
alleged offence. Prosecution has not proved the age of the victim girl.
The victim girl has narrated before the Medical Officer that she was
having love relationship with one person namely Rajan. The pregnancy
might be the result of the said relationship. Considering the same, only
on the basis of DNA evidence accused cannot be held guilty for the
offence punishable under Section 376(2)(f)(j)(i)(n) of the IPC. Whereas
learned Additional Public Prosecutor has submitted that the evidence of
victim girl corroborated by the Medical evidence as well as DNA report
sufficiently shows that it was the accused who committed sexual
intercourse with the victim which resulted into her pregnancy. The
accused has taken the disadvantage of the circumstances that the victim
girl is not having father, and mother had performed the second
marriage. Hence he is not entitled for any leniency.
7. Children are the greatest gift of humanity and the sexual
assault on children is the most heinous crime. To substantiate the
charge, prosecution has examined in all 8 witnesses.
(i) PW-1 – Victim (Exhibit 59) (due to the mandate of
(ii) PW-2 – Mother of the victim (Exhibit 64) – informant.
Medical Officer who has examined the victim.
(iv) PW-4 – Kiran s/o Vasantrao Chougale (Exhibit 77) –
Besides the oral evidence Prosecution also relied upon various
Statement of victim under Section 164 of Cr.P.C. (Exhibit
55), FIR (Exhibit 65), Medical Certificate (Exhibit 68), spot panchnama
(Exhibit78) letter to medical officer (Exhibit 79), letter to C.A. (Exhibit
80), Identification form (Exhibit 82 to 84), Letter to C.A. (Exhibit 85),
Letter to CMO (Exhibit 87), Search and seizure memo (Exhibit 88),
D.N.A. report (Exhibit 92), School Leaving Certificate (Exhibit 111),
School Admission Extract (Exhibit 112), medical certificate of accused
(Exhibit 115), Letter by Dr. Vairagade to Police (Exhibit 117) and
sonography report (Exhibit 118).
8. As per the prosecution case, victim was minor at the time of
incident and to prove the age of the victim prosecution mainly relied
upon on the evidence of PW-1 – victim and PW-2 – mother of the victim.
PW-1 – victim has narrated her birth date as 27/12/1997. She further
deposed that she was studying in 9th standard when the alleged incident
has taken place. PW-2 – mother of the victim testified that at the time of
incident her daughter was studying in 10 th standard in Dadasaheb
Khadse High School. She further testified that her daughter is residing
at the house of the accused since she was in 6th standard. To prove the
exact age of the victim, prosecution has examined PW-6 – Yuvraj
Prabhakarrao Khadse, Head Master of Dadasaheb Khadse High School,
Nagpur. As per his evidence, victim girl was admitted in his school in 8 th
standard on 25/06/2010 and left the school on 15/06/2013. The birth
date of the victim was recorded in his school on the basis of transfer
certificate of her earlier school by name Swargiya Shrawanji Watkar
Uccha Prathamik Shala, Hudkeshwar Road, Nagpur. He produced on
record transfer certificate copy (Exhibit 110) and School Admission
Extract (Exhibit 111) and extract of the admission register (Exhibit 112).
9. The accused has challenged the birth date of the victim.
During cross-examination, victim denied that she disclosed her false
birth date. Admittedly, mother of the victim had not stated about the
birth date of the victim. The material evidence is of PW-6 – Head
Master. It is elicited during cross-examination that he has not enquired
about the correctness of birth date of the victim as it was taken as per
the birth date mentioned in the transfer certificate. It is further elicited
that he had not personally taken the entry. Admittedly, prosecution has
not produced matriculation certificate, or the school record wherein
victim girl was firstly admitted. The evidence in the nature of
matriculation certificate or the school record wherein she was firstly
admitted is the material evidence.
10. Learned Counsel for the appellant placed his reliance on
Umesh Chandra Vs. State of Rajasthan AIR 1982 SC 1057, Jarnail Singh
Vs. State of Harayana 2013 ALL MR (Cri) 2946, Mahadeo S/o Kerba
Maske Vs. State of Maharashtra and another (2013) 14 SCC 637.
11. It is observed by the Hon’ble Apex Court in the case of Jarnail
Singh Vs. State of Harayana 2013 ALL MR (Cri) 2946 that even though
Rule 12 of Juvenile Justice Rules 2007 is strictly applicable only to
determine the age of the child in conflict with law, the aforesaid
statutory provision should be the basis for determining the age, even for
a child who is victim of a crime. For, there is hardly any difference in so
far as the issue of minority is concerned, between a child in conflict with
law, and a child who is victim of crime. Therefore, it would be just and
appropriate to apply Rule 12 of the 2007 Rules to determine the
age of prosecutrix. The manner of determining age conclusively, has
been expressed in Sub-rule 3 of Rule 12. Under the aforesaid
provision, the age of the child is ascertain by adopting the
first available basis, out of number of options postulated in Rule 12(3).
If, in the scheme of options under Rule 12(3), an option is expressed in
the preceding clause, it has over riding effect over an option expressed in
a subsequent clause. In the scheme of Rule 12(3) matriculation (or
equivalent) certificate of the concerned child is the highest rated option.
In case the said certificate is available, no other evidence can be relied
upon. Only in the absence of the said certificate, Rule 12(3) envisaged
consideration of the date of birth entered, in the school 1 st attended by
the child. In case such an entry of date of birth is available, the date of
birth depicted therein is liable to be treated as final and conclusive and
no other material is to be relied upon. Only in the absence of such entry
Rule 12(3) postulates reliance on the birth certificate issued by
Corporation, Municipal authority or Panchayat. Yet again, if such
certificate is available then no other material whatsoever is to be taken
into consideration for determining the age of the child concerned, as the
said certificate would conclusively determine the age of the child, it is
only in the absence of any of the aforesaid, the Rule 12(3) postulates the
determination of age of the concerned child, on the basis of medical
12. Thus, in the present case, prosecution has not proved the age
of the victim by producing relevant documents and evidence on record.
13. So far as the charge under Section 376(2)(f)(j)(i)(n) of the
IPC is concerned, the implicit reliance placed on record by the
prosecution is on the evidence of PW-1 – victim and the scientific
evidence in the nature of D.N.A. report. The facts on record shows that
the victim is not having father and her mother had performed second
marriage, therefore, she was residing along with the accused. As per the
allegation, accused who is of the age of her father subjected her for
sexual assault forcefully and resultantly, victim girl got pregnant and
delivered a child in a tender age. The evidence of PW-1 – victim reveals
that she was residing along with the accused and used to treat him as
‘Mama’. When initially she started residing with the accused, accused
was residing along with his daughter and son. After marriage of
daughter of the accused she continued to stay along with the accused.
When she was in a 9th standard the accused forcibly had a sexual
intercourse with her. She further alleged that he used to touch her body
and had physical relations with her on 3 to 4 occasions. She could not
understand that she is pregnant and started vomiting, therefore, accused
took her at Vairagade hospital at Manewada. Dr. Vairagade disclosed to
her that she is carrying the pregnancy of 7 months. Doctor further
informed to her that if she has to abort the child, expenses are to be
incurred which she could not and, therefore, she had not aborted the
child. In the last week of November, 2013 she delivered a child. Her
mother has lodged the report and child was handed over to the Child
Welfare Committee. She further deposed that after registration of the
crime, her blood samples and blood samples of her child were taken.
During her cross-examination defence was taken that she had a love
relations with one boy namely Rajan but she denied the same. She also
denied that she disclosed before the Medical Officer that she was having
love affair with one boy namely Rajan. Except this cross-examination,
nothing incriminating came on record.
14. The evidence of PW-2 – mother of the victim girl who lodged
the report is only to the extent that her daughter was residing along with
the accused and she remained pregnant and delivered a male child. Her
daughter disclosed to her that she was subjected for sexual assault,
therefore, she lodged the report which is at Exhibit 65. PW-2 has also
denied that victim is having love affair with one boy Rajan. Except this
cross-examination remaining cross-examination is in the denial form.
15. To corroborate the version of the victim, prosecution relied
upon the medical evidence and to prove the medical evidence, evidence
of PW-3 – Dr. Mangala Marotrao Sonak was laid. PW-3 – Dr. Managala
Marotrao Sonak testified that the victim was referred to her for medical
examination and she narrated the history that she was in relationship
from last one and half year with one boy Rajan and conceived and
delivered a child on 28/11/2013. On her examination, she found milk
secretion was present in the breast. Uterus was palpable. Accordingly,
she issued the certificate vide Exhibit 68. She also collected the blood
samples of the victim and handed over to the police. During her cross-
examination it is elicited that when the history was given victim was not
under pressure which is admitted by PW-3. PW-7 – Dr. Pratik Sahadeo
Gilbe has examined the accused on 09/12/2013. As per his evidence
accused informed him that incident took place since 2008 to 2013 at his
residential house. He opined that there was nothing to suggest that
accused was incapable of performing sexual intercourse. Accordingly, he
issued the medical certificate. PW-8 – Dr. Sushil Pundalikrao Vairagade
is the medical practitioner who initially examined the victim. As per his
evidence, on 28/11/2013 one girl was brought to his hospital with pain
in abdomen and distension. She was accompanied with man. The man
was under influence of alcohol and was talking irrelevantly. Said man
disclosed that he is maternal uncle of that girl. PW-8 also disclosed the
name of the girl and testified that the girl was in agony and was not able
to walk. On examination she was found to be pregnant and in a labour
pain. The girl was taken in labour room wherein she delivered
a male child. The girl seems to be of 10-12 years old. No
relative was present and the man with the girl was not able to
speak. Therefore, he informed to the police about the incident. Though
PW-8 is cross-examined but nothing incriminating came on record
during the cross-examination. PW-4 - Kiran S/o Vasantrao Chougale is
the Investigating Officer who testified that he obtained the DNA kit from
the forensic lab and forwarded the victim as well as the child for
obtaining the blood samples. He also obtained the blood samples of the
accused in a sealed condition and forwarded the DNA kits to Chemical
Analyzer office along with the letter Exhibit 85 and invoice challan
Exhibit 86. He also received the DNA report which he filed on record
along with the charge-sheet.
16. The prime evidence on which prosecution relied upon is the
scientific nature in the form of DNA report. Evidence of PW-5 - Amulya
Amol Pande who is the Assistant Chemical Analyzer reveals that he is
expert in analysis of DNA profile as he conducted analysis of DNA profile
in more than 800 cases. He had undergone special training for DNA
profile. The accuracy of DNA results is 100%. On 05/12/2013, he
received the requisition letter along with the DNA kits. Prior to that
requisition was received for obtaining the DNA kit from Hudkeshwar
police station. On 06/12/2013, the DNA kits containing the samples are
received in the office which were duly sealed along with the forwarding
letter Exhibit 85 with identification forms Exhibit 82 to 84. Accordingly,
16 different tests are performed and the analysis was made by applying
PCR (Polymers Change Reaction) test. As per the said report, victim and
the accused are concluded to be biological parents of baby delivered by
the victim. Said report is at exhibit 92. He specifically stated that the
report is accurate and there is no question of any doubt.
17. During the cross-examination of DNA analyzer attempt was
made to elicit that he had not obtained any special training. He
admitted that the person who is M.Sc. (Chemistry) can perform DNA test
and special training is required for DNA test. PCR is advanced
test/technique. During cross-examination he narrated entire method
which is applied by him that he examined 16 STR locus in DNA samples.
He personally had extracted DNA from blood samples and extracted the
DNA from blood by Robotic method and prepared the report. It was
suggested that the result of DNA may get affected if the analyst suffering
from cold, fever or other infections which is admitted by PW-5. But he
specifically denied that his condition was not normal when he conducted
the analysis. Thus, the attempt was made that the DNA analysis test is
not 100% sure which is denied by the PW-5. The evidence of PW-5
further reveals that he extracted DNA from blood samples and done its
amplification by PCR method. He obtained electro pherogram by electro
phoresis on genetic analyzer. Thereafter he compared the profile and
lastly prepared the report. Though arduous cross-examination was
taken, nothing incriminating is brought on record.
18. After appreciation of evidence on record the entire
prosecution case revolves around the evidence of PW-1 – victim and the
medical evidence and the DNA report. PW-1 – victim has categorically
stated that she was residing at the house of the accused when accused
sexually assaulted her. At the time of framing of the charge, the age of
the accused was 55 years whereas victim girl was 19-20 years old at the
time of her deposition. Thus, the age difference between the victim girl
and the accused is more that 30 years approximately. The evidence of
victim girl specifically states that she was staying with the accused
initially when his daughter was not married. After the marriage of
daughter of the accused, he subjected her for sexual intercourse due to
which she was pregnant and delivered a male child. It is an admitted
fact that mother of the victim girl was working as a domestic helper at
the house of the accused, and therefore, she got acquaintance with the
accused. Victim girl has lost her father in her early age and mother had
performed second marriage. Due to the second marriage of mother,
victim girl has taken the shelter at the house of the accused and was
calling the accused as ‘Mama’. However, accused had not treated her
like a daughter and subjected her for sexual assault. Admittedly,
defence has not denied her presence along with the accused at his house.
It is admitted fact that the victim girl was staying with the accused and
she specifically stated that the alleged incident of sexual intercourse by
the accused was forceful and took place after accused had performed the
marriage of his own daughter. During cross-examination nothing is
elicited to falsify her version.
19. The evidence of victim girl is corroborated by PW-2 – mother
of the victim to the extent that when victim girl approached to her with a
complaint of abdominal pain, she was pregnant. The implicit reliance
was placed by the prosecution is on the evidence of Medical Officers,
PW-3 – Dr. Mangala Marotrao Sonak and PW-8 Dr. Vairagade. PW-8 –
Dr. Vairagade is the Medical Practitioner who initially examined the
victim whom she approached along with the accused on 28/11/2013
with pain in abdomen. The evidence of PW-8 reflects that the accused
was under the influence of alcohol. No female accompanied the victim.
The victim was in agony and having labour pain. She was pregnant and
within 10-15 minutes she delivered a male child. The evidence of Dr.
Vairagade further shows that the person who brought her at the hospital
left the hospital without informing him, therefore, he informed the
police. As per the evidence of PW-1 – victim, accused is the person who
took her to the hospital of Dr. Vairagade. The defence has not denied
the fact that accused had taken the victim at the hospital of Dr.
Vairagade. Evidence of PW-3 – Dr. Mangala Sonak shows that on
examination, she found the presence of pregnancy changes. So far as
history narrated to her is concerned it was given by the victim that she is
having some relationship with one boy Rajan. The admitted fact is that
the victim was staying with the accused, accused has taken her in the
hospital and in such circumstances, the possibility of giving false history
to save the accused cannot be ruled out.
20. The evidence of victim is further corroborated by the evidence
of PW-5 - Amulya Amol Pande who is the Chemical Analyzer conducted
the DNA examination. His evidence shows that he conducted the said
DNA examination by applying the PCR test and on the basis of
examination he opined that the accused and the victim are concluded to
be biological parents of the child delivered by the victim. His evidence
further shows that he received the samples which were in a sealed
condition. The documents on record shows that on 05/12/2013
requisition was issued for obtaining the DNA kit, immediately on
05/12/2013 DNA kit was handed over. Victim and the accused are
forwarded to the Medical Officer for obtaining their blood samples on
05/12/2013 itself. The blood samples of newly born baby was also
obtained on 05/12/2013. Exhibits 82 to 84 are the identification forms
prepared by the Medical Officer when victim, baby and accused were
referred for obtaining their blood samples. Immediately on 06/12/2013,
samples are forwarded to Forensic Lab for analysis. PW-5 had analysed
the said samples. During the cross-examination entire procedure carried
out by PW-5 came on record. PW-5 categorically narrated about the said
procedure and nothing is on record to show that the samples were
tampered. Thus, the evidence of scientific expert is proved by the
prosecution in the present case. PW-7 - Dr. Pratik Sahadeo Gilbe is the
Medical Officer who examined the accused and PW-4 – Kiran Chougale
is the Investigating Officer. The sum and substance of entire evidence
on record shows that victim girl of a young age was subjected for sexual
intercourse and in the result she delivered a child. The accused has not
denied that the victim girl was subjected for sexual intercourse and she
delivered a child. In fact, nothing is brought on record by the accused to
show that he is falsely implicated in the alleged offence. On the
contrary, evidence of the victim supported by the scientific evidence is
sufficient to show that the victim was subjected for penetrative sexual
assault. Sexual activities with young girl of immature age have a
traumatic effect on them which persists throughout their life and often
destruct whole personality of the victim. The victim of a sexual assault is
not an accomplish but she is a victim of lust of another person. Her
evidence stands at a higher pedestal than that of an injured witness. The
evidence of victim of rape case is required to receive same weight as it
attached to evidence of an injured witness.
21. It is also supported by the scientific evidence. There can be
no doubt that there have been remarkable technological advancement in
forensic science and in scientific investigations. The DNA testing has an
unparalleled ability both to exonerate the wrongly convicted and to
identify the guilty. It has the potential to significantly improve both the
criminal justice system and police investigative practices. Modern DNA
testing can provide powerful new evidence unlike anything known
before DNA technology as a part of forensic science and scientific
discipline not provide any guidance to investigation but also supplies the
Court accurate information about the tending features of identification
of criminals.
22. In Mukesh and another Vs. State (NCT of Delhi) 2017 ALL
MR (Cri) 2448, Hon’ble Apex Court held the importance of DNA
evidence. It was observed in paragraph No.216 and 217 :
“216. In our country also like several other developed and
developing countries, DNA evidence is being increasingly relied
upon by courts. After the amendment in the Criminal Procedure
Code by the insertion of Section 53A by Act 25 of 2005, DNA
profiling has now become a party of the statutory scheme. Section
53A relates to the examination of a person accused of rape by a
medical practitioner.
217. Similarly, under Section 164A inserted by Act 25 of 2005, for
medical examination of the victim of rape, the description of
material taken from the person of the woman for DNA profiling is
must. (Emphasis supplied by us)”
23. Thus, if totality of circumstances emerging on record discloses
that the victim does not have any motive to falsely implicate the accused
and her evidence corroborated by the medical and scientific evidence
indicate that she had been sexually assaulted by the accused.
24. Learned Advocate Shri Dhore submitted that the punishment
awarded by the trial Court is the maximum punishment. He submitted
that the accused is of more than 55 years of age. Admittedly, victim was
staying at the house of the accused. Though defence of consent is not
available but the fact remains that prior to lodging of the report she
never complained and continued to stay along with him. In the
background that it was the accused who maintained her and brought up
her when her real parents left her on the streets, the punishment
awarded to him is to be reduced.
25. We have given thoughtful consideration to the submissions
made by the learned Advocate for the appellant. The Protection of
Children from Sexual Offences Act, 2012 is enacted with specific object
that the law should operate in a manner that the best interest and well
being of the child are regarded as paramount importance at every stage,
to ensure the healthy, physical, emotional, intellectual, social
development of the child. The object is also that the person of culpable
state of mind should be punished for harassing the child and keep the
society child friendly. From the evidence on record, it reveals that the
accused in the present case is of a 55 years old whereas victim was only
16 years of age at the time of lodging report. As per her evidence, the
first instance of sexual assault on her by the accused when she was in a
9th standard. The evidence further discloses that the accused had
physical relations with her on 3-4 occasions and resultantly, she was
pregnant and delivered a child at a tender age of 16 years. She had
carried the pregnancy of such a tender age and delivered the child. Due
to the act of the accused who is fatherly figure for her she carried the
said pregnancy. It further reveals from the evidence of PW-8 Dr. Sushil
Pundalikrao Vairagade that the person brought the victim in his hospital
was under the influence of liquor. Victim was in agony and she was not
able to walk. The girl has delivered a child immediately within 10-15
minutes. His evidence further reveals that the person who brought her
in the hospital had left the hospital and never returned again. Thus, the
conduct of the accused shows that he left the victim in the hospital
under the labour pain and not taken care what happens to the victim
thereafter. PW-8 – Dr. Vairagade identified the accused as the same
person who brought her in the hospital and left her there in agony. The
prosecution evidence further discloses that victim girl who has taken the
shelter at the house of the accused as her father is not alive and mother
had performed second marriage. This evidence shows that the trust of
the victim is betrayed by the accused. The accused was under moral
obligation to protect the child in the background that he was having his
own daughter but he destroyed her future life. The accused had
destroyed the physical body of the victim and degrades the very soul of
helpless girl. It is to be borne in mind that the accused is the person who
has violated the victim’s privacy and personal integrity and also caused
serious psychological as well as physical harm to the victim. Rape is not
merely a physical assault but it is often destructive the whole personality
of the victim, and therefore, the matters of such allegation must be dealt
with utmost sensitivity.
26. The Hon’ble Apex Court in Ravi S/o Ashok Ghumare Vs. The
State of Maharashtra 2019 ALL MR (Cri) 4873 (S.C.) held that the object
and purpose of determining quantum of sentence has to be ‘society
centric’ without being influenced by a ‘judge’s’ own views, for society is
the biggest stake holder in the administration of criminal justice system.
A civic society has a ‘fundamental’ and ‘human’ right to live free from
any kind of psycho fear, threat, danger or insecurity at the hands of
anti-social elements. The society legitimately expects the Courts to apply
doctrine of proportionality and impose suitable and deterent punishment
that commensurate(s) with the gravity of the offence. It is further held
that the Sentencing Policy, therefore, needs to strike a balance between
the two sides and count upon the twin test of (i) deterrent effect, or (ii)
complete reformation for integration of the offender in civil society. It is
further held by the Hon’ble Apex Court that the criminal law had been
viewed on a dimensional plane wherein the Courts were required to
adjudicate between the accused and the State. The ‘victim’ - the de facto
sufferer of a crime had no say in the adjudicatory process and was made
to sit outside the court as a mute spectator. The ethos of criminal justice
dispensation to prevent and punish ‘crime’ would surreptitiously turn its
back on the ‘victim’ of such crime whose cries went unheard for
centuries in the long corridors of the conventional apparatus. A few
limited rights, including to participate in the trial have now been
bestowed on a ‘victim’ in India by the Act No.5 of 2009 whereby some
pragmatic changes in Cr.P.C. have been made.
27. Considering the above observation of the Hon’ble Apex Court,
the facts of the present case are examined and it reveals that the small
girl was subjected for sexual assault by the grown up man and imposed
on her motherhood in a very tender age when she was unable to carry
said burden. The subsequent conduct of the accused shows that he left
the victim girl in the hospital under the pain and mental agony and she
delivered the child there without support of anybody. The learned trial
Court had considered all these aspects and rightly come to the
conclusion to award the punishment of life imprisonment. Learned trial
Court has observed that the accused who being in position of trust and
dominance over victim took undue advantage of these circumstances
and committed heinous crime to fulfill his lust. Victim had undergone
tremendous mental trauma by delivering a child. Victim has to lead
remaining life with permanent scar as well as psychological impact on
her life. The trial Court further observed that she is a shelterless child.
It jeopardized future prospects of enjoying life, therefore, such cases
should be dealt with iron hands and maximum punishment needs to be
awarded. Thus, the trial Court has assigned the reasons while awarding
the maximum punishment.
28. We do not find any reason to interfere with the impugned
judgment even on the point of quantum of sentence.
29. Considering all these factors no case for acquittal as well as
for lessor punishment is made out. The appeal is devoid of merits. While
dismissing the appeal the question of rehabilitation of a victim as she is
shelterless is to be addressed. Admittedly, father of the victim girl is not
alive, mother is residing along with her second husband and keeping the
victim without any shelter would be again keeping her on the street,
therefore, we direct the Secretary, High Court Legal Service Sub-
Committee, Nagpur to take necessary steps regarding the rehabilitation
of the victim girl. Till then, victim girl shall be kept in the Priyadarshini
Shaskiya Mahila Vasatigruha, Nagpur. Hence we proceed to pass
(i) The Criminal Appeal is dismissed.
Sub-Committee, Nagpur shall take necessary steps regarding
the rehabilitation of the victim girl. Till then, victim girl shall
be kept in the Priyadarshini Shaskiya Mahila Vasatigruha,
30. Rule is made absolute in the aforesaid terms. There will be
no order as to costs. | The Bombay High Court on Thursday upheld the life sentence of a 55-year-old man convicted for raping a minor girl stating that the appellant, being a fatherly figure in the girl's life, betrayed her trust.
"This evidence shows that the trust of the victim is betrayed by the accused. The accused was under moral obligation to protect the child in the background that he was having his own daughter but he destroyed her future life. The accused had destroyed the physical body of the victim and degrades the very soul of helpless girl. It is to be borne in mind that the accused is the person who has violated the victim's privacy and personal integrity and also caused serious psychological as well as physical harm to the victim", the court stated.
The division bench of Justice Rohit Deo and Justice Urmila Joshi-Phalke of Nagpur dismissed the man's appeal against conviction under section 376(2)(f)(j)(i)(n) of the IPC.
The mother of the victim used to work as a domestic servant in the appellant's house. The victim was staying with the appellant and his family. After her mother had a second marriage, she continued to stay with the appellant. After the girl complained about abdominal pain, she was taken to the hospital and it was revealed that she was 7 months pregnant. She disclosed that the appellant repeatedly raped her since she was in 9th standard. The mother lodged a complaint and the trial court convicted him. Hence the present appeal.
According to the DNA report, the prosecutrix and the appellant are the biological parents of the baby delivered by her. The court noted that there is nothing on record to show that the blood samples were tampered with.
Therefore, the court rejected appellant's defence that he was falsely implicated stating that there is no evidence to support this defence.
The court further remarked on the capabilities of modern DNA testing. "The DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty. It has the potential to significantly improve both the criminal justice system and police investigative practices. Modern DNA testing can provide powerful new evidence unlike anything known before DNA technology as a part of forensic science and scientific discipline not provide any guidance to investigation but also supplies the Court accurate information about the tending features of identification of criminals", the court stated.
The court observed that the victim's evidence, corroborated by the medical and scientific evidence, indicates that she had been sexually assaulted by the appellant. The victim girl was merely 16 years old at the time of lodging of the report. Rape is often destructive to the personality of the victim and such allegations must be dealt with utmost sensitivity, the court said.
"Sexual activities with young girl of immature age have a traumatic effect on them which persists throughout their life and often destruct whole personality of the victim. The victim of a sexual assault is not an accomplish but she is a victim of lust of another person. Her evidence stands at a higher pedestal than that of an injured witness. The evidence of victim of rape case is required to receive same weight as it attached to evidence of an injured witness", the court reiterated.
Appellant's lawyer sought reduction in sentence contending that the victim did not complain and continued to stay with the appellant till lodging of the report. Further, the appellant continued to maintain her and brought her up when her real parents left her on the streets.
The court referred to Ravi Ashok Ghumare v. State of Maharashtra in which the Apex Court held that the object of determining sentence has to be 'society centric'. Further, it held that the sentencing policy needs to strike a balance between deterrent effect and complete reformation for integration of the offender in civil society.
The court noted that the victim took shelter at appellant's house as her father was not alive and her mother had a second marriage. Thus, the appellant betrayed her trust.
The court said that the victim carried the pregnancy at a tender age of 16 due to the act of a fatherly figure. Further, the appellant brought her to the hospital under the influence of liquor, and abandoned her there. Thus, the appellant's conduct shows that he left the victim in the hospital in labour pain and did not care about what happens to her thereafter, the court observed.
The court directed the Secretary, High Court Legal Service Sub Committee, Nagpur to take necessary steps for rehabilitation of the victim girl.
Case no. – Criminal Appeal No. 470 of 2019
Case Title – Harishchandra Sitaram Khanorkar v. State of Maharashtra |
1. This second appeal is directed against the judgment and decree
dated 09.09.2010 passed by the learned Senior Civil Judge, Nirmal,
in A.S.No.15 of 2006 confirming the judgment and decree dated
14.08.2006 passed by the learned Junior Civil Judge, Nirmal, in
O.S.No.108 of 1997. The said suit was filed by the plaintiff seeking
for declaration and recovery of possession of suit schedule property.
By the judgment dated 14.08.2006, the trial Court decreed the suit
with costs in favour of the plaintiff.
2. Vemula Sulochana-plaintiff filed a suit for declaration of
possession of the land admeasuring Ac.2.25 guntas, dry, situated in
Sy.No.392 of Rajura Village of Khanapur Mandal (hereinafter referred
to as ‘suit land’), inter alia contending that she is the owner and
possessor of the suit land and that she succeeded the same from her
deceased mother-Lalitha Bai and her mother died in the year 1996
leaving behind her daughter, the plaintiff, as the sole legal heir.
Thereafter, the plaintiff approached the Mandal Revenue Officer,
Khanapur, to mutate the suit land in her favour after the death of her
mother as successor. The defendant is the brother of her father i.e.
junior paternal uncle and he was looking after the properties of her
mother and cultivating the suit land on batai basis and he was giving
share in the crop to her mother every year. Even after the demise of
her mother, the defendant used to give paddy crop to her. When the
plaintiff approached the Village Administrative Officer of Rajura
Village for payment of land revenue and also for issuance of pattadar
pass book and title deed, he refused to issue the same, and as such,
she approached the Mandal Revenue Officer and applied certified
copies of pahanies in respect of the suit land and also to know the
procedure to mutate the suit land in her name. At that point of time
she noticed that the name of the defendant is reflecting in the
pattedar column and cultivation column. The plaintiff would also
submit that the defendant got mutated his name in revenue records
with the collusion of the Village Administrative Officer by name
Venkat Rao who is his close relative. Thereafter, the plaintiff filed a
petition on 02.09.1997 before the Mandal Revenue Officer to cancel
the mutation in the name of the defendant and to affect the same in
her name. As the Mandal Revenue Officer refused to cancel the name
of the defendant, the plaintiff filed the present suit seeking
declaration and recovery of possession as well as rectification of the
revenue entries.
3. The defendant in his written statement while denying the
averments made by the plaintiff, submitted that the father of the
plaintiff was his elder brother and that their joint family consists of
three brothers and the suit land was the joint family property. As the
plaintiff’s father late Basa Hanumantha Rao was the elder and kartha
of joint family was looking after the entire agricultural operations, the
lands were kept in his name and after his death, the properties were
mutated in the name of his wife. The defendant would submit that as
there are disputes arose between the parties regarding the suit land,
with the intervention of the relatives and caste elders a panchayat
was held in the Ellapi Sangham on 24.01.1993. In the said
panchayat it was agreed by both the parties that the suit land has to
be mutated in the name of the defendant and the husband of the
plaintiff-Venkat Ramulu agreed and signed for the proposed mutation
and in view of the re-arrangement between the parties as agreed, the
suit land was mutated in the name of the defendant. He would
further assert that the plaintiff is estopped by the agreement dated
24.01.1993, and thus, the suit is not maintainable since the plaintiff
has no locus to file the suit.
4. The plaintiff, in support of her case, examined herself as P.W.1
and also P.Ws.2 to 4 including the Mandal Revenue Officer and relied
upon Exs.A.1 to A.17. The defendant examined himself as D.W.1 and
also examined D.Ws.2 and 3 on his behalf and relied upon Exs.B.1 to
5. The trial Court, after appreciating the evidence on record,
decreed the suit with costs in favour of the plaintiff and directed the
defendant to deliver possession of the suit land and the plaintiff is
entitled to rectification of revenue entries in the records. Aggrieved by
the said judgment, the defendant preferred appeal in A.S.No.15 of
2006. The appellate Court dismissed the appeal confirming the
judgment of the trial Court, and thus, the defendant preferred this
6. Heard the learned counsel appearing for the appellant as well
as the learned counsel appearing for the respondent. Perused the
entire record and the case law cited by both the counsel.
7. Learned counsel for the appellant would argue that the suit
property is a joint family property, but both the Courts below erred in
decreeing the suit. He would further assert that Ex.B.1 pahani for the
year 1975-76 was misconstrued which shows that the father of
respondent-plaintiff is pattadar of suit land and in column No.15 it is
shown as ‘swantham’. The respondent herein did not file any
document to show that the suit property is a self acquired property of
her father. Learned counsel raised the following substantial questions
a) Whether both the Courts had justified in decreeing the suit of
the respondent-plaintiff on the basis of the evidence let in by
b) Whether the findings of both the Courts are perverse or not?
c) Whether in the absence of any link document earliest to
Ex.B.1 to show that the father of the plaintiff is the exclusive
owner of the suit schedule property, the Court below was right
d) Whether in a suit for declaration and recovery of possession
the initial burden of the proving prima facie title to the
property lies on the plaintiff and that plaintiff must stand or
fail on its strength. Whether in the absence of discharge of
such initial burden the Courts below were right in shifting the
8. Learned counsel for the appellant would rely upon the case law
to support his contentions. In a decision reported in SAJANA
GRANITES, MADRAS V/s. MANDUVA SRINIVASA RAO1 it was held
that in a suit for declaration of title and possession the plaintiff could
succeed only on the strength of his title but not on the failure on the
part of the defendant to prove his title. Another decision cited by the
learned counsel for the appellant reported in SURAJ BHAN V/s.
FINANCIAL COMMISSIONER2 for the proposition that an entry in
revenue records does not confer title on a person whose name appears
in record-of-rights. Entries in the revenue records or jamabandi have
only ‘fiscal purpose’ i.e. payment of land revenue, and no ownership is
conferred on the basis of such entries. So far as title to the property is
concerned, it can only be decided by a competent civil court.
9. Before the appellate Court, the appellant argued that the trial
Court erred in decreeing the suit basing on the weaknesses of the
defendant but not on the strength of the plaintiff, but the appellate
Court after considering the evidence on record and the case law cited
before it held that the said decision has no application to the facts of
the case on hand since the plaintiff established her title by way of
abundant documentary material and the inconsistent stand taken by
the defendant and also leading evidence contrary to the pleadings.
Even the appellate Court relied upon a case law reported in
PANCHAPPANAVAR3 and held that it is well settled position of law
that mutation of a property in the revenue records does not create or
extinguish title nor its presumptive value on title. It was also
observed that the defendant in the cross-examination clearly
admitted that partition took place between the defendant and his two
brothers long ago. After the death of their father their names were
mutated for properties that fell to their shares and in that manner
the suit land was recorded in the name of the father of the plaintiff
and after his death in the name of his widow Lalitha Bai. The trial
Court also held that the defendant filed Ex.B1 pahani for the year
1975-76 which shows that the plaintiff’s father is the pattedar of suit
land and in Column No.15 it was shown as ‘swantham’ i.e. self
acquired property and in Ex.B2 the name of the mother of the
plaintiff was entered in the pahani for the year 1985-86 and in
Column No.12 it was shown as 50(B) Patta and in the cultivation
column also her name was reflected. Even in the pahanies for the
years 1994-95 and 1995-96 the name of the plaintiff’s mother was
shown as pattedar of the suit land. Exs.B3 and A1 pertains to the
year 1993-94 in which the name of the plaintiff’s mother was shown
as pattedar. The name of defendant first time was shown as pattedar
in pahani of 1996-97 under Ex.B6. The defendant argued that his
name was shown in possessory column and in Column No.15 it is
mentioned as ‘hisitardaru’ and thus he was a co-sharer of the suit
land. But the trial Court observed that by the date of death of the
father of the plaintiff defendant was aged 20 to 25 years and hence at
the time of partition he was major and aged 20 to 25 years but he did
not made any effort to enter his name in the revenue records and
only after the death of the plaintiff’s mother he got his name mutated
in the revenue records and that he failed to prove that he is a
co-sharer of the suit land. The plaintiff also contended that defendant
was looking after the properties on batai basis even during the life
time of her mother, as she died in the year 1995, he got his name
mutated in the year 1997, and thus, he was never in the possession
of the suit land. It was also observed by both the Courts that the
defendant was taking inconsistent pleas. The trial Court in Issue
No.3 clearly held that the defendant entered his name wrongfully in
collusion with revenue authorities and thereafter the Mandal
Revenue Officer without following proper procedure effected mutation
in Ex.A5 and the defendant failed to file any documents to prove his
right over the land. Even the appellate Court held that the revenue
authorities did not follow due procedure while effecting mutation in
the name of the defendant.
10. Learned counsel for the appellant would further argue that the
suit land is a joint family property and not self acquired property of
plaintiff and that the plaintiff did not file any iota of evidence to
support of her contention. The said issue was dealt with by the trial
Court in detail and after considering the entire evidence on record
rightly declared the plaintiff as owner of the suit land, which was also
confirmed by the appellate Court. It is to be noted that when there
are concurrent findings of both the Courts in a well reasoned order,
the Second Appeal is not maintainable without any substantial
question of law involved in it.
11. This Court therefore finds no merit in the second appeal. No
question of law, much less a substantial question of law, arises for
consideration in this appeal. The Second Appeal is accordingly
dismissed with costs.
12. Pending miscellaneous petitions, if any, shall also stand
dismissed in the light of this final judgment. | The Court also held that when there are concurrent findings from both courts in a well-reasoned order, the second appeal is not maintainable without any substantial question of law.In a recent Telangana High Court ruling, the court held that when there are concurrent findings of both the Courts in a well-reasoned order, the Second Appeal is not maintainable without any substantial question of law. Brief Facts The suit was filed by the plaintiff seeking for declaration and recovery of possession of suit schedule property. The plaintiff contended that she was...
In a recent Telangana High Court ruling, the court held that when there are concurrent findings of both the Courts in a well-reasoned order, the Second Appeal is not maintainable without any substantial question of law.
Brief Facts
The suit was filed by the plaintiff seeking for declaration and recovery of possession of suit schedule property. The plaintiff contended that she was the owner and possessor of the suit land and that she succeeded the same from her deceased mother as she was the sole legal heir. The defendant was the brother of her father i.e. junior paternal uncle and he was looking after the properties of her mother and cultivating the suit land and he was giving share in the crop to her mother every year. The plaintiff had approached the Mandal Revenue Officer, to mutate the suit land in her favour after the death of her mother as successor. She noticed that the name of the defendant was reflecting in the pattadar and cultivation column. Thereafter, the plaintiff filed a petition before the Mandal Revenue Officer to cancel the mutation in the name of defendant and to affect the same in her name. The Mandal Revenue Officer refused to cancel the name of the defendant and being aggrieved, the plaintiff filed the present suit.
The defendant submitted that the father of the plaintiff was his elder brother and the suit land was joint family property. As the plaintiff's father was the elder and kartha of joint family, the lands were kept in his name and after his death, the properties were mutated to his wife's name. The defendant submitted that a panchayat was also held in which the husband of the plaintiff agreed and signed for the proposed mutation in the name of defendant. The defendant contended that the suit land is rightly mutated in his name.
The trial Court decreed the suit with costs in favour of the plaintiff and directed the defendant to deliver possession of the suit land to plaintiff. Aggrieved, the defendant preferred an appeal where the appeal was dismissed. The defendant then preferred the Second Appeal.
Before the appellate court, the appellant-defendant argued that the trial court erred in decreeing the suit basing on the weaknesses of the defendant but not on the strength of the plaintiff.
Court's ruling
The appellate court considered the evidence on record and held that the plaintiff established her title by way of abundant documentary material. The court relied on a case Basalingappa Channappa v. Dundappa Puttappa Panchappanavar, 1998 and held that it is a well settled position of law that mutation of a property in the revenue records does not create or extinguish title nor its presumptive value on title. It is clear from the documents that the plaintiff's father is the pattedar of suit land and it was shown as 'swantham' i.e. self-acquired property and after his death it was mutated in the name of the mother of the plaintiff. The court observed that the plaintiff was only looking after the properties on batai basis but was never in possession of the suit land. The appellate Court held that the revenue authorities did not follow due procedure while effecting mutation in the name of the defendant.
Justice P. Sree Sudha ruled that:
"The said issue was dealt with by the trial Court in detail and after considering the entire evidence on record rightly declared the plaintiff as owner of the suit land, which was also confirmed by the appellate Court. It is to be noted that when there are concurrent findings of both the Courts in a well-reasoned order, the Second Appeal is not maintainable without any substantial question of law involved in it."
The court therefore dismissed the Second Appeal with costs.
Case Title: Basa Bagawantha Rao v. Vemumula Sulochana |
vil Appeals No. 26A42648 of 1987: From the Judgment and Order dated 7.5.
1987 passed by the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi, Order No. 377 to 381/1987 D in Appeal Nos.
CD/SA/A Nos. 2451, 1989 to 1991 & 1992/86 D. V.C. Mahajan R.P. Srivastava and P. Parmeswaran for the Appellant.
T.A. Ramachandran and Mrs. J. Ramachandran for the Respondents.
The Judgment of the Court was delivered by RANGANATHAN, J.
These are four appeals by the Collector of Customs in the cases of M/s. Western India Plywood Mfg. Co. Ltd. and Kanara Wood & Plywood Industries Ltd. (herein after referred to as 'the assessee ').
A very short common point is involved in these appeals.
The assessee imported logs of timber from Burma.
Under the , timber is chargeable to cus toms duty at 60%.
(This we shall call the basic customs duty.) The relevant entry in the Schedule to the is under heading No. 44.01 which includes "wood and timber".
The Government had, however, issued a notification under section 25(1) of the exempting timber imported from certain countries of which Burma is one.
The result was that the basic customs duty payable by the assessee in respect of its imports we shall call this the effective basic duty was nil.
The assessee, however, was liable to pay an additional duty of customs in respect of its imports.
This additional duty may be referred to as the auxiliary duty of customs.
The levy of this duty is governed by the terms of notification No. 265 dated 8.12.1982 and its suc cessor notifications Nos.
59 of 1983 and 126 of 1984.
782 The last of these reads as follows: TABLE section No. Description of goods Rate (1) (2) (3) 1 Goods in respect of which Forty * per cent the rate of duty of customs of the value of specified in the said First the goods as Schedule, read with any determined in relevant notification of the accordance with Government of India for the the provisions time being in force is 60 per of Section 14 cent ad valorem or more.
of the (52 of 1962).
Goods in respect of which the Thirty * per cent rate of duty of customs of the value of specified in the said First goods as deter Schedule, read with any relevant mined in accord notification of the Government ance with the of India for .the time being in provisions of force is nil or less than 60 per Section 14 of cent ad valorem.
(52 of 1962) * These percentage are 30% and 20% in the notification of 1982 and 35% and 25% in the notification of 1983.
The terms of the notifi cations are otherwise identical.
Explanation: For the purpose of S1.
Nos. 1 and 2 in the above Table, the expression "the rate of duty of customs specified in the said First Schedule, read with any relevant notification of the Government of India for the time being in force", in relation to any article liable to two or more different rates of duty by reason of the country of origin of that arti cle, means that rate of duty which is the highest of those rates.
" The assessee cleared the goods by paying an auxiliary duty at 783 40%.
Subsequently, however, the assessee seems to have felt that its case falls under section No. 2 of the above notification and that it should have paid an auxiliary duty of only 30% and not 40%.
It, therefore, applied to the respondent for a refund of the excess duty allegedly paid by it.
This claim was rejected by the Assistant Collector.
However, on appeal, the Collector of Customs (Appeals) held that the assessee was entitled to the refund claimed and this order has also been confirmed by the Customs, Excise and Gold Control (Appellate) Tribunal (CEGAT).
The Collector of Customs has preferred these appeals.
The order of the Tribunal in the appeals preferred by the present respondent was a very short order in which the Tribunal followed its earlier decision in the case of M/s. Indian Plywood Company Limited, Bombay.
We have been taken through the decision of the Tribunal in the said case which is reported in (1987) 29 ELT page 559.
We have, therefore, had the benefit of the full reasoning of the Tribunal for reaching its conclusion.
We are of opinion that the Tribunal has erred in its interpretation of the notification set out above and that the assessee 's case is clearly covered by the explanation in the notification.
It is true that the main part of the notification provides for an auxiliary duty at 40% in cases where the effective rate of basic duty (i.e. the rates set out in the First Schedule read with any relevant notifica tion) is 60% or above and an auxiliary duty at 30% in cases where such effective basic rate is nil or less than 60%.
If the notification had stopped here, the assessee would have been perfectly within its rights to claim that the auxiliary duty payable by it would only be 30% because the effective basic rate in its case is nil.
However, the explanation has made an inroad into this simple rule.
It has provided that where there are two (or more) effective basic rates applicable in respect of any article and the differentiation in rates is attributable to the country of origin of the goods imported, then the auxil iary duty payable will be the higher of the two (or the highest of the) rates.
In the present case, when timber is imported from Burma and the other countries specified in the notification or notifications under section 25(1), the rate of basic duty is nil but if the goods are imported from other countries, the notification does not apply and a basic duty of 60% would be leviable under the entry in the First Schedule.
The result, therefore, is that when we read the rates specified in the First Schedule along with the rele vant notifications in respect of a particular article, namely, timber, we find that the effec 784 tive basic duty is leviable on it at two rates and this differentiation in rates is attributable to the country of origin in regard to the import.
Hence the explanation squarely comes into operation and the assessee will have to pay auxiliary duty by reference to the higher of the two rates of the effective basic duty, namely, 60%.
The contention on behalf of the respondent and this is also the view taken by the Tribunal appears to be that the explanation comes into operation only if there is more than one notification granting concession or exemption in respect of basic duty providing for different rates in respect of articles imported from different countries.
We are unable to see any warrant for reading any such restriction into the terms of the explanation.
As we see it, the terms of the explanation are perfectly clear.
It is this: that if, in respect of any article, there are :two or more effective basic duties in operation and the difference is referable to the country from which the article is imported, then the highest of the effective rates will govern the levy of auxiliary duty.
It does not matter whether the difference in the rates is because the First Schedule applies in certain cases and a concession notification applies in other cases.
Clearly, the use of the words "rate . . specified in the First Schedule, read with any relevant notification" does not necessarily require that there should be such a notifi cation; they mean: "the rates specified in the First sched ule read with the relevant notification, if any".
If there is no notification the rate specified in the First Schedule has obviously to be taken into account for purpose of the notification we are now concerned with.
It is.
therefore, not necessary that the differentiation referred to in the explanation should arise on account of the existence of more than one notification altering the basic duty set out in the Schedule.
Sri Ramachandran contended that the construction sought to be placed by us would lead to this anomaly that a person will have to pay an auxiliary duty even though the effective basic duty is nil.
This argument is without force for two reasons.
In the first place that is the direct result of the explanation and, therefore, if that is the clear intention of the statutory instrument, the anomaly cannot be helped.
The second and perhaps more appropriate answer to Sri Rama chandran 's contention is that the explanation is based on good reason.
It will be seen that in a case of this type as well as in cases governed by more than one notification, which make a distinction in the rate of duty based on the country of origin, there will be different importers import ing goods but paying basic duty at different rates.
The intention of the statute could well be that while for pur poses of basic duty a 785 differentiation in rates may be justified depending upon the country of origin that consideration would be totally irrel evant in the context of auxiliary duty.
In the context of auxiliary duty, it is .equitable that all importers should pay the additional duty at the same rate and that they should have no advantage or disadvantage inter se.
A grant of concession in the matter of auxiliary duty as well would result in widening the gulf between one importer and another and also that between such an importer and the local trader.
The provision, therefore, seems to have been deliberately enacted to achieve this result which is not really an anoma ly as described by Sri Ramachandran.
Sri Ramachandran sought to make same point on the use of the word 'article ' in the notification.
We do not, however, see any significance in the use of this word which has any relevance to the point at issue.
The word 'article ' is used because though a number of articles may be included in one item in the First Schedule, the relevant notification may not govern all of them and it may be restricted.only to some out of the many articles mentioned in the Schedule.
The notification and the explanation, therefore, make it clear that the auxiliary duty has to be calculated with reference to each article based on the effective basic rates of duty applicable to such article in terms of the First Schedule read with any relevant notification under section 25.
For the reasons mentioned above, we are of opinion that the auxiliary duty paid by the assessee was perfectly in order and that its refund applications are not maintainable.
We, therefore, set aside the order of the Tribunal and the Collector (Appeals) and restore the order of the Assistant Collector refusing refund to the assessee.
The appeals are, therefore, allowed.
In the circumstances of the case, we make no order as to costs.
N.P.V. Appeals allowed. | Under Heading No. 44.01 of Schedule to the , timber was chargeable to customs duty (basic effective duty) at 60%.
However, under a Notification issued by the Government under Section 25(1) of the , timber imported from certain countries was ex empted, but an additional duty (auxiliary duty) was payable on Such imports in terms of Notification No. 265 dated 1.12.1982 and its successor Notifications No. 53 of 1983 and 126 of 1984.
The assessee imported logs of timber from an exempted country, and as it was not liable to pay the basic duty, it cleared the goods by paying the auxiliary duty at 40%, with reference to the effective basic duty at 60%, as prescribed under Notification No. 126 of 1984.
Subsequently, however, the assessee felt that it should have paid an auxiliary duty of only 30%, and not 40% since no basic effective duty was payable on the goods imported.
It, therefore, applied to the respondent for refund of the excess duty paid by it.
This claim was rejected by the Assistant Collector.
On appeal, the Collector of Customs (Appeals) held that the assessee was entitled to the refund claimed.
This order was confirmed by the Customs Excise and Gold (Control) Appellate Tribunal (CEGAT), on the view that the explanation would come into operation only if there was more than one notification granting concession or exemption, in respect of basic duty, providing for different rates in respect of articles import ed from different countries.
Hence, the appeals by the Department.
Allowing the appeals, this Court, HELD: 1.
The Tribunal has erred in its interpretation of the Notification No. 126 of 1984.
The assessee 's case is clearly covered by 780 the explanation in the notification.
The auxiliary duty paid by the assssee was perfectly in order and its refund appli cations are not maintainable.
[783D, 785E] 2.1 The notification and the explanation make it clear that the auxiliary duty has to be paid with reference to each article based on the effective basic duty applicable to such article in terms of the First Schedule read with any relevant notification under Section 25.
[785D] 2.2 No doubt, the main part of Notification No. 126 of 1984 provides for auxiliary duty at 40% where rate of effec tive basic duty is 60% or above i.e. rates set out in First Schedule read with any relevant notification and at 30% where such effective rate is nil or less than 60%.
However, the explanation to the notification has made an inroad into this simple rule by providing that where two or more effec tive basic rates are applicable in respect of any article, and the differentiation in rates is referable to the country of origin, then the auxiliary duty payable will be the higher of the two, or highest of the rates.
[783E G] 2.3 In the instant case, when timber is imported from the countries specified in the notification or notifications under Section 25(1), the rate of basic duty is nil, but if the goods are imported from other countries, the notifica tion does not apply and a basic duty of 60% would be levi able under the entry in the First Schedule.
Thus, when the rates specified in the First Schedule are read along with the relevant notifications, it is found that the effective basic duty is leviable on it at two rates and this differen tiation in rates is attributable to the country of origin in regard to the import.
Hence, the explanation squarely comes into operation and the auxiliary duty will have to be paid by reference to the higher of the two rates of the effective basic duty, namely, 60%.
[783G H; 784A] 2.4 The differentiation referred to in the explanation need not arise on account of the existence of more than one notification, altering the basic duty set out in the Sched ule.
It does not matter whether the difference in the rates is because the First Schedule applies in certain cases and a concession notification in other cases.
If there is no notification the rate specified in the First Schedule has to be taken into account for purpose of the notification in question.
[784D E] 2.5 A person will have to pay an auxiliary duty even though the effective basic duty is nil.
That is the clear intention of the statutory instrument and the explanation is based on good reason.
It is equitable 781 that all importers should pay the additional duty at the same rate and that they should have no advantage or disad vantage inter se.
A grant of concession in the matter of auxiliary duty as well would result in widening the gulf between one importer and another and also that between such an importer and the local trader.
[784F; 785A] |
1. The appellant has challenged his conviction and
sentence recorded by the learned Special Judge under POCSO Act
at Greater Mumbai on 20.11.2017 in POCSO Case No.94/2014.
The appellant was convicted for commission of offence punishable
under Section 354 of the Indian Penal Code read with Section 8 of
the Protection of Children from Sexual Offences Act, 2012 (for
short, ‘POCSO Act’). He was sentenced to suffer RI for five years
and to pay fine of Rs.5,000/- and in default to undergo RI for six
months. He was granted benefit of set off under Section 428 of
Cr.P.C.. The judgment mentions that the appellant was in custody
from 13.12.2013 till 21.7.2014 and then was re-arrested on
26.7.2017 and was in custody till the date of the order.
2. Heard Shri Sushan Mhatre, learned counsel for the
appellant and Shri Yogesh Dabke, learned APP for the State.
3. The prosecution case is that on 11.12.2013 at about
1.00 p.m., the appellant approached the victim who was about five
years of age on that date. He touched and pinched her private
parts and thus committed offence punishable under Section 8 of
POCSO Act and under Section 354 of IPC. The FIR was lodged at
the midnight. The appellant was apprehended by the people from
the locality, was brought to the police station then he was arrested.
The investigation was carried out and the charge-sheet was filed.
During trial, the prosecution examined four witnesses : PW-1 was
the victim herself, PW-2 was the victim’s mother, PW-3 was the
investigating officer and PW-4 was the Medical Officer.
4. PW-1 in her deposition has stated that she was studying
in 4th standard. Her school timing was from 7.00 a.m. to 12.30 p.m.
After returning from school she used to take lunch and thereafter
used to go to Masjid for studying Arbi. She used to return home at
around 4.30 p.m. Then she used to go out for playing with her
friends and used to return home at 7.00 p.m. On the day of the
incident she was playing outside her house with her friends. At
that time, one uncle came near her and took her with him. He
closed her eyes with his hands. He touched her private parts. He
also pinched her private parts. She was having pain. She returned
home and narrated the incident to her mother. Her mother took
her to hospital. Then she was taken to the police station. The
mother lodged her FIR. PW-1’s statement was also recorded under
Section 164 of Cr.P.C. by the learned Magistrate.
In the cross-examination, she deposed that her parents
were keeping watch on her activities to protect her and that she
was not kept alone by her mother. She did not know anything
about the relations between her father and the appellant. She
specifically denied the suggestion that she was deposing before the
Court against the appellant at the instance of her mother. She also
admitted that there was quarrel between the appellant and her
father. However, she immediately clarified that the quarrel took
place on account of the fact that the appellant had committed this
offence. PW-1 then identified the appellant before the Court.
5. PW-2 is the mother of the victim. She had narrated the
incident that on the date of the incident her daughter returned
home crying. On enquiries she told her about the incident. PW-2
then saw her private part which was reddish in colour. In the
evening she along with her daughter - the victim had gone to
purchase vegetables, while they were returning they saw that the
appellant was drinking alcohol. At that time the victim showed the
appellant as the person who had committed that offence. PW-2’s
husband then with the help of neighbours enquired with the
appellant. The people in the vicinity gathered there and assaulted
the appellant for committing that act. The police then came there
and took the appellant with them. PW-2 also went to the police
station and lodged her FIR, which was produced on record at
Exhibit-13. The victim was sent for medical examination.
In the cross-examination, hardly anything of
consequence was elicited from her evidence. She denied the
suggestion that on the date of incident the appellant had quarreled
with her husband under the influence of liquor and as PW-2’s
husband assaulted him, the appellant’s family members went to
police station to lodge complaint against her husband and,
therefore, immediately the present complaint was lodged to falsely
implicate the appellant.
There is hardly any material contradiction and omission
between the FIR and her deposition. The FIR was recorded at
12.10 a.m. on 13.12.2013 i.e. on the same mid-night.
6. PW-3 API Santosh Rasam had conducted the
investigation. He deposed that at about 11.30 p.m., the informant,
her husband and the victim had come to the police station and had
narrated the incident. The FIR was lodged. In the meantime, the
staff of Vakola police station brought the appellant to the police
station in their mobile van. The victim identified the appellant as
the person who had committed that act. He was arrested. He
clarified that in the third paragraph of the FIR, by mistake, the date
was mentioned as 11.12.2013 instead of 12.12.2013. The victim
was five years of age at the time of FIR and she was continuously
crying and, therefore, he could not record her statement for seven
to eight days. In the meantime, she was referred for medical
examination at Cooper Hospital. The victim’s statement was
recorded under Section 164 of Cr.P.C. He himself recorded the
statement of the victim on 11.8.2017 and issued copy of the same
to the defence. Again in the cross-examination, nothing much was
elicited. He admitted that he did not record the statement of the
victim’s friends who were playing with her.
7. PW-4 Dr. Ayyar had examined the victim on
12.12.2013. She was brought to Cooper Hospital by her mother.
Her medical examination did not reveal anything except the history
given by her mother .
. This, in short, is the prosecution case.
8. The defence of the appellant recorded under Section
313 of Cr.P.C. is that he went to the victim’s father’s shop to
purchase grocery. He paid money but there was some quarrel and
he was falsely implicated because of the quarrel between him and
the victim’s father.
9. Learned Judge believed the version of the victim and by
relying on other evidence, convicted and sentenced the appellant as
10. Learned counsel for the appellant submitted that the
FIR mentions that the incident had taken place on 11.12.2013 and
the FIR was lodged on 13.12.2013. The delay has remained
unexplained. He submitted that the appellant is falsely implicated
because of the quarrel between him and the victim’s father. He
submitted that the medical examination did not reveal any injury
including redness on the private part of the victim. The
prosecution case therefore is doubtful.
11. Learned APP, on the other hand, relied upon the
depositions of the victim and her mother to contend that the
prosecution has proved its case beyond reasonable doubt.
12. I have considered these submissions. The victim has
described the incident in sufficient details. She was barely five
years of age. The evidence shows that she was crying continuously.
After gathering courage she, in fact, had identified the appellant in
the Court. From her evidence it does not appear that she is a
tutored witness. In fact she has denied the suggestion that she was
deposing on being tutored by her mother. The victim appears to be
13. PW-2’s evidence corroborates PW-1’s version. The
appellant was immediately shown by PW-1 in the evening when
PW-1 and PW-2 were returning after purchasing vegetables from
the market. There was no possibility of the victim identifying the
appellant wrongly. PW-1 appears to be an innocent child. She has
not identified any person randomly. Even during the course of trial,
she identified the appellant in the Court though she was scared.
14. The absence of injury mentioned in the medical
certificate will not make any difference to her case because the very
nature of the offence of sexual assault defined under Section 7 of
the POCSO Act mentions that even touching private part with
sexual intent is sufficient to attract the provisions of Section 7 read
with Section 8 of the POCSO Act.
15. In this case, the ocular evidence of the victim and her
mother inspires confidence and there is no reason to doubt their
versions. The other step of arresting the accused is also proved by
the prosecution from the evidence of the investigating officer. The
appellant was caught by the residents and was handed over to the
16. The defence of the appellant does not really help his
cause. No circumstances are brought on record by the defence to
show that there in fact was any quarrel between the appellant and
the victim’s father.
17. Thus, considering all these aspects, no case for
interference with the impugned judgment and order is made out.
The appeal is, therefore, dismissed. It is clarified that if the
appellant has already completed his substantive sentence and also
the the sentence imposed on him in default of payment of fine, in
that case, the appellant be released only if he has completed both
the sentences and if he is not required in any other case. With
these observations, the appeal is disposed of. | Merely touching the private parts of a child with sexual intent is enough for it to be construed as sexual assault under section 7 of the POCSO Act and a medical certificate demonstrating an injury is not mandatory, the Bombay High Court has held. "The absence of injury mentioned in the medical certificate will not make any difference to her case because the very nature of the offence...
Merely touching the private parts of a child with sexual intent is enough for it to be construed as sexual assault under section 7 of the POCSO Act and a medical certificate demonstrating an injury is not mandatory, the Bombay High Court has held.
"The absence of injury mentioned in the medical certificate will not make any difference to her case because the very nature of the offence of sexual assault defined under Section 7 of the POCSO Act mentions that even touching private part with sexual intent is sufficient to attract the provisions of Section 7 read with Section 8 of the POCSO Act."
Justice Sarang Kotwal dismissed the appeal by the man convicted for the sexual assault of a minor girl in 2013. In November 2017, the special POCSO held him guilty for offences punishable under section 354 (assault or criminal force to woman with intent to outrage her modesty) of the Indian Penal Code (IPC) and section 8 (sexual assault) of the POCSO Act. He was sentenced to five years of rigorous imprisonment.
It was the prosecution's case that the man picked up the girl while she was playing with her friends outside the house and touched and pinched her private parts. A complaint was lodged after the mother approached the police.
The victim's statement was recorded under section 164 of the CrPC.
The accused submitted that the girl's father falsely implicated him after a quarrel and there was two-day delay in filing of the FIR. The case was also doubtful because no injury was revealed on the victim's body, he argued.
However, the bench said that "the victim has described the incident in sufficient detail. The victim appears to be a truthful witness. There was no possibility of the victim identifying the appellant wrong."
Moreover, sexual assault as described under section 7 of the POCSO Act was made out as sexual intent was proved even in absence of injuries as medical evidence.
"In this case, the ocular evidence of the victim and her mother inspires confidence and there is no reason to doubt their versions. The defence of the appellant does not really help his cause. Thus, considering all these aspects, no case for interference with the impugned judgment and order is made out. The appeal is, therefore, dismissed."
Case Title: Ramchandra Shrimant Bhandare Versus The State of Maharashtra |
2.2 In furtherance of the aforesaid FIR, the petitioner came
to be arrested and thereby, an application being Criminal
Misc. Application No.503 of 2022 came to be preferred under
Section 439 of the Cr.P.C. for seeking, inter-alia, regular bail.
The said application came up for hearing before the learned
Principal District and Sessions Judge (Designated Court),
Rajkot, who, vide its order dated 22.4.2022, allowed the same
with certain conditions, mainly Condition Nos.4 and 6, which
“(4) The applicant to produce bank guarantee of
sand Six Hundred Ninety Five Only) in the name of
Nazir, District Court, Rajkot, within two weeks of his
release from custody. However, the payment / dis-
bursement shall be subject to the provisions of
G.P.I.D. Act and/or final decision of the trial.
(6) In case the I.0. fails to recover the amount of
sand Six Hundred Ninety Five Only) from the appli-
cant, the bank guarantee shall stand forfeited in
favour of the complainant -State.”
3. Being aggrieved by the aforesaid, the petitioner has
approached this Court by way of present Special Criminal
Application for the reliefs stated herein-above.
4. This Court had an occasion to deal with and decide
somewhat similar issue in Special Criminal Application
No.1692, decided on 9.6.2022, wherein in Para.9 following
question was framed and decided :
“9. So far as deletion of condition No.6 is
concerned, short but interesting question of law
arises for consideration of this Court is whether the
Court while exercising powers under Section 439 of
the Cr.P.C., can impose such condition which
amounts to exercising powers envisaged under the
another enactment i.e. Gujarat Protection of Interest
of Depositors (In Financial Establishments) Act,
5. This Court has in detail considered the provision of law
and observed as under :
10. So as to decide the aforesaid question, in my
view, it would be apt to consider relevant provisions
of the Act of 2003, which is as under :
“4. Attachment of properties on default of
return of deposit. (1) Notwithstanding
anything contained in any other law for the
time being in force,
(i) Where upon complaint received from the
depositor or otherwise, the State
Government is satisfied that any
Financial Establishment has failed,
(a) to return the deposit on maturity on
demand by the depositor; or
(b) to pay interest or other assured
(c) to provide the service promised
against such deposit; or
(ii) Where the State Government has reason
to believe that any Financial
Establishment is acting in a calculated
manner detrimental to the interest of the
depositors with an intention to defraud
and if the State Government is satisfied that
such Financial Establishment is not likely to
return the deposits or make payment of
interest or other benefits assured or to
provide the services against which the deposit
is received, the State Government may, in
order to protect the interest of the depositors
of such Financial Establishment, after
recording the reasons in writing, issue an
order by publishing it in the Official Gazette,
for attaching the money, property or assets
belonging to or believed to have been
acquired by such Financial Establishment
either in its own name or in the name of any
other person from out of the deposits
collected by the Financial Establishment, or if
it transpires that such moneys, properties or
assets, is not available for attachment or not
sufficient for repayment of the deposits, such
other property or assets of the said Financial
Establishment or of the promoter, director,
partner or member of the said establishment
as the State Government may think fit.
(2) On publication of the order under sub-
sec. (1), all the moneys, properties and assets
of the Financial Establishment and of the
person mentioned therein shall forthwith vest
in the Competent Authority pending further
order from the Designated Court.
(3) The Collector of a district shall be
competent within his jurisdiction to receive
the complaint under sub-sec. (1) and he shall
forward such complaint alongwith his report
to the State Government at the earliest and
shall send a copy of the complaint to the
concerned Superintendent of Police or
Commissioner of Police, as the case may be,
for investigation.
5. Appointment of Competent Authority :-
(1) The State Government shall while issuing
the order under sub-sec. (1) of Sec. 4, appoint
an officer not below the rank of the Deputy
Collector to be the Competent Authority to
exercise control over the moneys, properties
and assets attached by the State Government
under Sec. 4.
(2) The Competent Authority shall have such
other powers and discharge such other
functions as may be prescribed by rules for
carrying out the purposes of this Act.
(3) The Competent Authority shall apply,
within thirty days from the date of the
publication of the order made under Sec. 4 to
the Designated Court, accompanied by one or
more affidavits stating therein the grounds on
which the State Government has issued the
said order and the amount of moneys or other
properties or assets belonging to or believed
to have been acquired out of the deposits and
the details, if any, or persons in whose name
such property is believed to have been
invested or acquired or any other property
attached under Sec. 4, for such further orders
as the Designated Court may find necessary.
(4) The Competent Authority may, also make
an application to any Special Court or
Designated Court or any other judicial forum
established or constituted or entrusted with
the powers by any other State Government for
adjudicating any issue or subject matter
pertaining to moneys or properties or assets
of the Financial Establishment under any
similar enactment in respect of moneys or
properties or assets belonging to or ostensibly
belonging to the Financial Establishment or of
any person notified under this Act situated
within the territorial jurisdiction of that
Special Court or Designated Court or any
judicial forum, as the case may be, for passing
appropriate orders to give effect to the
provisions of this Act.
6. Duties and powers of Competent
Authority:- (1) The Competent Authority, on
receipt of order of his appointment, shall take
such necessary actions as it is necessary or
expedient for taking physical possession of all
the moneys, properties and assets of the
concerned Financial Establishment
expeditiously and he shall have all the powers
which are necessary for the aforesaid
purpose.
(2) Without prejudice to the generality of the
powers vested under sub-sec. (1), the
Competent Authority shall be entitled to -
(a) require assistance of any police
authority or any other authority or
person and on such requisition, it shall
be the duty of the police authority or
such other authority or person to extend
necessary assistance;
(b) open bank accounts in any scheduled
commercial bank and credit all moneys
realised and operate the bank accounts
while dealing;
(c) to direct the person to furnish the
necessary information relating to
moneys, properties and assets of the
Financial Establishment to hand over
possession of such moneys, properties
and assets to the Competent Authority
and such person shall comply with the
requisition without any loss of tune;
(d) appoint legal practitioner or chartered
accountant or any other person whose
services are necessary for taking
possession of assets and realisation of
the assets of the Financial
(e) sell, receive, transfer, endorse,
negotiate or otherwise deal with any
marketable security or negotiable
instrument belonging to or in the control
of the Financial Establishment and give
proper discharge for the same;
(f) sell, transfer or otherwise realise any
movable or immovable property
belonging to or in the control of the
Financial Establishment either by public
auction or with the prior approval of the
Designated Court by private
Provided that the perishable items of
assets shall be sold by public auction at
the earliest as the Competent Authority
(g) make payment as per the orders passed
by the Designated Court from out of the
bank accounts; and
(h) do all and every acts and deeds which
would be necessary for the speedy
realisation of the assets of the Financial
Explanation. For the purpose of this
section, the expression "Financial
Establishment" includes the promoters,
directors, partners, managers or
members of the said establishment or
any other person whose property or
assets have been attached under Sec. 4.
7. Assessment of assets, deposits and
liabilities:- (1) The Competent Authority
shall, within thirty days from the date of his
appointment, assess the assets, deposits and
liabilities of the Financial Establishment and
submit the statement thereof to the
(2) The Competent Authority thereafter shall
issue notice either individually or by means of
effective media publication inviting the claims
by secured creditors, if any, and also the
depositors of the Financial Establishment to
submit their claims with sufficient proof in
support thereof.
3) Every notice under sub-sec. (2) shall
specify that if the statement of claims is not
sent to the Competent Authority before the
expiry of the period of one month from the
date of such notice, the claims shall not be
treated as claim entitled to be paid under the
provisions of this Act.
(4) Every notice to a secured creditor shall
require him to value the security before the
expiry of the period of one month from the
date of the notice and such notice shall also
specify that if the statement of the claim
together with the valuation of the security is
not sent to the Competent Authority within
such period, the Competent Authority himself
shall value the security to the best of his
judgment and his valuation shall be binding
on such secured creditors.
(5) The Competent Authority shall prepare a
statement of dues of the Financial
Establishment which is due from various
debtors, the assessments of the value of the
property and assets of the Financial
Establishment and the list of the depositors
and their respective dues; and submit the
same to the Designated Court.
8. Report by Competent Authority:- The
Competent Authority shall, after complying
with the provisions of Sec. 7, make an
application to the Designated Court seeking
permission to make payment to the depositors
from out of the money realised. While making
such application, the Competent Authority
shall assess the liability to the depositors and
the other liabilities and in case the money
realised or realisable is not sufficient to meet
with the entire liability, make a submission to
the Designated Court seeking permission for
making payment to the depositors and
disburse the money as per the orders of the
9. Designated Court :- (1) For the purposes
of this Act, the State Government may, with
the concurrence of the Chief Justice of the
High Court of Gujarat, by notification, in the
Official Gazette, constitute one or more
Designated Court of the level of the Court of a
District and Sessions Judge for such area or
for such case or group of cases or such class
as may be specified in the notification.
(2) No Court, other than the Designated Court
shall have jurisdiction to deal with or decide
any question which the Designated Court is
empowered to deal with or decide by or under
this 4.
(3) Any case or proceeding pending before
any Court or any authority in relation to the
moneys, properties or assets of the Financial
Establishment covered by an order made
under Sec. 4, shall stand transferred to the
respective Designated Court and shall be
dealt with and decided by such Court in
accordance with the provisions of this Act.
10. Powers of Designated Court regarding
attachment:- (1) Upon receipt of an
application made under Sec. 5, the
Designated Court shall issue to the Financial
Establishment or to any other person whose
moneys, properties or assets are attached by
the State Government and vested in the
Competent Authority under Sec. 4, a notice
accompanied by the application and affidavits
and copies of the evidence, if any, recorded,
calling upon the said establishment or the said
person to show cause on a date to be specified
in the notice, why the order of attachment
should not be made absolute.
(2) The Designated Court shall also issue such
notice, to all other persons represented to it,
as having or being likely to claim any interest
or title in the property of the Financial
Establishment or of the person to whom the
notice is issued under sub-sec. (1), calling
upon all such persons to appear on the same
date as that specified in the notice and to
make objection if they so desire, to the
attachment of the moneys, properties or
assets or any portion thereof on the ground
that they have interest in such property or
portion thereof.
(3) Any person claiming an interest in the
moneys, properties or assets attached or any
portion thereof may, notwithstanding that no
notice has been served upon him under this
section, make an objection as aforesaid to the
Designated Court at any time before an order
is passed under sub-sec. (4) or sub-sec. (6).
(4) The Designated Court shall, if no objection
is made or no cause is shown on or before the
specified date under sub-sec. (2), forthwith
pass an order making the order of attachment
absolute, and issue such direction as may be
necessary for realisation of the property, and
assets and moneys attached and for equitable
distribution among the depositors of the
money so realised.
(5) If cause shown or any objection is made as
aforesaid, the Designated Court shall proceed
to investigate the same and in so doing as
regards the examination of the parties and in
all other respects, the Designated Court shall,
subject to the provisions of this 4, follow the
summary procedure as contemplated under
Order 37 of the Civil Procedure Code, 1908 (5
of 1908) and exercise all the powers of a court
in hearing a suit under the said Code and any
person making an objection shall be required
to adduce evidence to show that at the date of
the attachment he had some interest in the
property so attached.
(6) After investigation under sub-sec. (5), the
Designated Court shall pass an order either
making the order of attachment passed under
sub-sec. (1) of Sec. 4 absolute or varying it by
realizing a portion of the property or assets or
moneys from attachment or canceling the
order of attachment:
Provided that the Designated Court shall not
release from attachment any interest, which it
is satisfied that the Financial Establishment or
the person referred to in sub-sec. (1) has in
the property or assets, unless it is also
satisfied that there will remain under
attachment an amount of property of value
not less than the value that is required for re-
payment to the depositors of such Financial
(7) Where an application is made by any
person duly authorised or constituted or
specified by any other State Government
under similar enactment empowering him to
exercise control over any moneys or
properties or assets attached by that State
Government, the Designated Court shall
exercise all its powers, as if, such an
application were made under this Act and
pass appropriate order or give direction on
such application so as to give effect to the
provisions of such enactment.
11. Power of Designated Court regarding
realisation of assets and payment to
depositors:-
(1) The Designated Court shall have all the
powers for giving effect to the provisions of
this Act.
(2) Without prejudice to the generality of sub-
sec. (1), the Designated Court may-
(a) give any direction to the Competent
Authority as it deems fit, for effective
implementation of the provisions of this
(b) approve the statement of dues of the
Financial Establishment which is due
from various debtors, the assessment
of the value of the assets of the
Financial Establishment and finalise
the list of the depositors and their
respective dues;
(c) direct the Competent Authority to take
possession of any property or assets
belonging to or in the control of the
Financial Establishment and to sell,
transfer or realise the attached
property or assets either by public
auction or by private sale as it deems
fit depending upon the nature of
property or assets and credit the sale
proceeds thereof to the bank accounts;
(d) approve the necessary expenditure
incurred by the Competent Authority
for taking possession and realisation of
the properties and assets of the
(e) pass an order to make payment to the
depositors by the Competent Authority
or for proportionate payment to the
depositors in the case where the
moneys so realised is not sufficient to
meet with the entire deposit liability;
(f) pass any order appropriate for
realisation of the property or assets of
the Financial Establishment and
repayment to the depositors of such
Financial Establishment or on any
matter incidental thereto.
Explanation. For the purpose of this
section, the expression "Financial
Establishment" includes the promoter,
director, partner, manager or member
of the said Establishment or any other
person whose properties or assets have
been attached under Sec. 4.”
11. Having considered the aforesaid provisions in
detail, it appears that the Gujarat Protection of
Interest of Depositors (In Financial Establishments)
Act, 2003 itself has inbuilt mechanism with regard to
offences related to said Act of 2003. It further appears
that it is the State Government, who, upon receipt of a
complaint, appoints an officer not below the rank of
Deputy Collector as the Competent Authority to
exercise control over the moneys, properties and
assets attached by the State Government under
Section 4. It is the competent authority, upon being
appointed, takes necessary action of taking physical
possession of all the moneys, properties and assets of
the concerned financial establishment. The competent
authority, after preparing report of the asset, deposit
and liability of the financial establishment, submit the
same before the Designated Court and thereafter,
shall make an application seeking permission of the
Designated Court to make payment to the depositors
from the money realized and thereafter, the
Designated Court, after due investigation, either
make an order of attachment absolute or portion of
such assets or money realizing from the attachment
or cancelled the order of attachment.
12. In view of the aforesaid mechanism, it is clear
that ultimate power of any attachment made under
the Act of 2003 vests with the Designated Court. The
mechanism of the Act of 2003 right from the passing
of order under Section 4(1) and thereafter,
appointment of competent authority under Section 5
and thereafter, the powers conferred to the
Designated Court under Section 10(6) are the special
powers and the same have to be in consonance with
the provisions of the Act of 2003. The Designated
Court has exclusive jurisdiction with regard to
passing of any orders under Section 10(6) of the Act
of 2003. The Designated Court may make attachment
order as absolute or modify or cancel.
13. Keeping in mind the aforesaid legal
provisions, more particularly if the Condition No.6
imposed by the learned Sessions Judge, is read over,
the same is completely beyond jurisdiction of the
learned Sessions Court while exercising powers under
Section 439 of the Cr.P.C. I say so because the same
is amounting to usurping powers envisaged under
Section 10(6) of the Act of 2003, that too without
following any procedure as prescribed. Thus, the
impugned condition imposed by the Sessions Court
while exercising powers under Section 439 of the
Cr.P.C., in my considered opinion, is beyond its
competence and is also contrary to the provision of
the Act of 2003. The Sessions Court while exercising
discretionary powers under Section 439 of Cr.P.C.
and while imposing condition, could not have
overlooked the provision of the Act of 2003 and could
not have passed an order imposing condition akin to
provision of Section 10(6) of the Act of 2003. Thus,
the bank guarantee which is furnished by the
petitioner cannot be in such a way appropriated
and/or forfeited in favour of complainant State,
without following due procedure of law prescribed
under the Act of 2003.
14. In view of the aforesaid discussion, in my
considered opinion, Condition No.6 imposed by the
learned Principal District and Sessions Judge
(Designated Court), Rajkot while exercising its power
under Section 439 of the Cr.P.C., is beyond its
competence and thus, the said condition deserves to
be deleted.
I answer the question accordingly.
6. Finally, this Court has allowed the aforesaid Special
Criminal Application, by observing as under :
“15. Resultantly, this Special Criminal Application
is hereby allowed in part. The order dated 2.2.2022
passed by the learned Principal District and Sessions
Judge (Designated Court), Rajkot in Criminal Misc.
Application No.2705 of 2021 is hereby modified to the
extent that so far as condition No.4 is concerned, the
petitioner shall furnish running bank guarantee of
Rs.2,02,47,500/- within a period of two months from
today and the Condition No.6 is hereby deleted. Rule
is made absolute to the aforesaid extent. Direct
service is permitted.”
7. In view of above, the present Special Criminal
Application is hereby allowed in part. The order dated
22.4.2022 passed by the learned Principal District and
Sessions Judge (Designated Court), Rajkot in Criminal Misc.
Application No.503 of 2022 is hereby modified to the extent
that so far as condition No.4 is concerned, the petitioner shall
furnish running bank guarantee of Rs.33,06,695/- within a
period of two months from today and the Condition No.6 is
hereby deleted. Rule is made absolute to the aforesaid extent.
Direct service is permitted. | A single judge bench of the Gujarat High Court consisting of Justice Niral R. Mehta held that while exercising its powers under Section 439 of Cr.P.C., the court could not impose any condition which amounted to it exercising powers envisaged under some other enactment. The court held that any such condition imposed would be completely beyond the court's jurisdiction.
Briefly, the facts of the case are that an FIR was registered against the petitioner for offences punishable under Sections 406, 420, 114 and 120(B) of the IPC and Section 3 of the Gujarat Protection of Interest of Depositors (In Financial Establishments) Act, 2003 (the Act). In furtherance of the aforesaid FIR, the petitioner was arrested and an application under Section 439 of the Cr.P.C. was filed seeking regular bail. The trial court allowed the same with certain conditions. The two conditions in contention were that first, the applicant was to produce bank guarantee of Rs.33,06,695/- within two weeks of his release from custody. The second condition stated that in case the I.O. fails to recover the amount, the bank guarantee shall stand forfeited in favour of the complainant-State.
The question that arose before the court was whether the Court, while exercising its powers under Section 439 of Cr.P.C., could impose such a condition which amounts to exercising powers envisaged under the another enactment i.e. Gujarat Protection of Interest of Depositors (In Financial Establishments) Act, 2003 (the Act).
After assessing the provisions of the Act, the court found that the Act itself had inbuilt mechanism with regard to offences related to the Act. As per the same, the Competent Authority was to take necessary actions concerning financial establishment, after which the Designated Court was to either make an order of attachment absolute or portion of such assets or money realizing from the attachment or cancelled the order of attachment.
In view of the aforesaid mechanism, the court held that –
"It is clear that ultimate power of any attachment made under the Act of 2003 vests with the Designated Court...The Designated Court has exclusive jurisdiction with regard to passing of any orders under Section 10(6) of the Act of 2003. The Designated Court may make attachment order as absolute or modify or cancel."
Therefore, it was held that the conditions imposed by the trial court under Section 439 of Cr.P.C. were completely beyond its jurisdiction because they amounted to usurping powers envisaged under Section 10(6) of the Act, without following any procedure as prescribed.
In view of above, the petition was allowed in part. The order of trial court was modified to the extent that the petitioner shall furnish running bank guarantee of Rs.33,06,695/- within a period of two months from today and the condition which stated that in case the I.O. fails to recover the amount, the bank guarantee shall stand forfeited in favour of the complainant-State was deleted.
Case No.: R/SCR.A/4953/2022
Case Title: KIRANKUMAR VANMALIDAS PANCHASARA v/s STATE OF GUJARAT |
These are two appeals filed by the Union of India,
through General Manager, Central Railway, Mumbai, impugning
the decision dated 1st September, 2021 awarding compensation of
Rs.8,00,000/- in Claim Petition No.OA IIu/168/2019 (First
Appeal No.113/2022) to the respondent-Reena Kharwade along
with interest at the rate of 9% per annum from the date of the
incident i.e. 5th January, 2019 till realization for injury of having
lost her both legs and also compensation of Rs.8,00,000/- in
to the respondents along with interest at the rate of 9% per annum
as dependants of the deceased mother of Reena Kharwade.
02] The factual background is that Reena Kharwade, the
sole respondent in First Appeal No.113/2022, who was about to
be married, being desirous of travelling from Nagpur to
Pandhurna alongwith her mother for making marriage purchases,
both holding valid railway tickets, boarded GT Express Train
going towards Chennai instead of a train going towards Hazrat
Nijamuddin, Delhi. Admittedly, the daughter and the mother
boarded a wrong train going in the opposite direction. When it
was realized that they had boarded a wrong train, and when the
train slowed down near Ajni Railway Station, which is though not
a scheduled stop for GT Express, both the mother and the
daughter while attempting to deboard the moving train, slipped
and fell down, as a result of which, the mother sustained injuries
to which she succumbed and died and the respondent-daughter
was grievously injured in both her legs resulting in double
amputation. Thereafter, the two claim petitions referred to above
were preferred before the Railway Claims Tribunal, Nagpur (the
“Tribunal”) under Section 16 of the Railways Claims Tribunal
Act, 1987 read with Section 125 of the Railways Act, 1989 (the
“Railways Act”) for compensation together with interest. Claim
Petition No.OA IIu/168/2019 was preferred by the daughter for
claiming compensation for the injury of double amputation
suffered by her and the other was a claim by the dependants
including the daughter being Claim Petition No.OA
03] The Tribunal allowed the claim petitions filed by the
respondents. Aggrieved by the same, the Railways are in appeal by
filing these two appeals being First Appeal Nos.113/2022 and
04] There is no dispute on the facts in the matter. Since
the basic facts in both the appeals are same, for the sake of
convenience, Record and Proceedings, pagination with respect to
First Appeal No.113/2022 is being referred to.
05] Mr Lambat, learned counsel for the Railways would
submit that the only issue that arises for consideration of this
Court is, whether the act of the mother and the daughter of whom
the daughter was highly educated to first board the GT Express
Train going in the wrong direction and then to alight from the
running train and that too at a station not having a scheduled halt
would be a case firstly of not holding a valid ticket and secondly
whether such an act would be a case of self-inflicted injury or a
criminal act as per the exceptions contained in the proviso to
Section 124-A of the Railways Act. He would submit that the
scope of self-inflicted injury in the Railways Act cannot be placed
in a narrow compass, but has to have a wide connotation. He
would submit that the cross-examination of the respondent (A-79
of the Record and Proceedings in First Appeal No.113/2022)
clearly indicates that the Respondent has studied up upto Master
of Computer Application; that being so highly qualified, the
Respondent was intelligent enough to understand that the train
which they got into was not the train going towards Pandhurna,
but since they were negligent, they not only boarded the wrong
train but despite knowing that for stopping the train, there is an
arrangement in the compartment to pull the chain, if required,
and despite the speed of the train being 50 to 60 kms. per hour,
they alighted the running train at Ajni Railway Station, and then
the Respondent fell down first and thereafter the mother fell
down. Learned counsel would submit that the cross-examination
of Mr. Anil Dorlikar, working as a Trackman (A-81 of the Record
and Proceedings in First Appeal No.113/2022) would suggest that
there was no jerk to the said train, as a result of which, the mother
and the daughter fell down. He would submit that this is a case
where the respondent and her mother have invited disaster
knowing fully well the consequences of having boarded the wrong
train even after hearing the railway announcements and despite
being an educated person. He would submit that therefore, this is
a clear case of self-inflicted injury and this Court should set aside
the judgment of the Tribunal.
06] Mr. Lambat relies upon a decision of this Court in the
case of Fakira Mangal Gautel Vs. Union of India (judgment dated
4th December, 2009 in First Appeal No.406/2002) in support of
his contentions and submits that in a similar case where the
Appellant who was the Railway employee while attempting to
board a moving train, which had no stop at Itwari Railway Station
and in that process, he fell down and lost his legs, this Court
observed that the Appellant used to habitually board this train,
but on that unfortunate day, he could not succeed in boarding the
train, this Court observed that there was no scheduled halt at
Itwari Railway Station and therefore, the Appellant-railway
employee was not a bona fide passenger and not entitled to any
compensation as the Appellant endeavoured to board the moving
07] On the other hand, Mr. Mankar, learned counsel for
the Respondents in both the appeals would submit that due to
track maintenance, when the train was passing from Ajni Railway
Station, there was an unexpected jerk, due to which, both the
mother and the daughter fell down and grievously injured
themselves. He would submit that from the cross-examination, it
is also clear that, as they realized that they had boarded a wrong
train, they wanted to alight the train whenever the train would
stop but not particularly at Ajni Railway Station. He would
submit that both the mother and the daughter had a valid journey
ticket and as such were bona fide passengers. He would submit
that the journey ticket only mentions the point of boarding as
Nagpur and the destination as Pandhurna and the date, but does
not mention the train for which the same is valid. He would
submit that there was no intention on the part of the mother and
the daughter to self-inflict, but only because they wanted to get
off the wrong train, they alighted and fell down.
08] He relies upon the decision of this Court in the case of
Union of India Vs. Anuradha Narendra Deshmukh, 2013(6)
Mh.L.J. 242 in support of his contention, he submits that in a
similar case, this Court has dismissed the appeal of the Railways.
09] I have heard learned counsel for the parties and with
their able assistance, I have perused the record and proceedings in
the matter.
10] Before proceeding further, it would be apposite to set-
forth the relevant provisions of the Railways Act as under:
(I) Section 2(29) of the Railways Act defines “passenger”
“2. Definitions.- In this Act, unless the context
otherwise requires,-
(29) “passenger” means a person travelling with a
valid pass or ticket;”
(II) Section 123(c) of the Railways Act defines “untoward
“123. Definitions.- In this Chapter, unless the
context otherwise requires,-
(1)(i) the commission of a terrorist act within
the meaning of sub-section (1) of section 3 of
the Terrorist and Disruptive Activities
(iii) the indulging in rioting, shoot-out or
arson, by any person in or on any train
carrying passengers, or in a waiting hall, cloak
room or reservation or booking office or on
any platform or in any other place within the
precincts of a railway station; or
(2) the accidental falling of any passenger
from a train carrying passengers”
11] Section 124-A of the Railways Act is also usefully
quoted with respect to compensation on account of untoward
“124-A. Compensation on account of untoward
incidents.- When in the course of working a railway
an untoward incident occurs, then whether or not
there has been any wrongful act, neglect or default
on the part of the railway administration such as
would entitle a passenger who has been injured or
the dependant of a passenger who has been killed
to maintain an action and recover damages in
respect thereof, the railway administration shall,
notwithstanding anything contained in any other
law, be liable to pay compensation to such extent as
may be prescribed and to that extent only for loss
occasioned by the death of, or injury to, a passenger
as a result of such untoward incident :
Provided that no compensation shall be payable
under this section by the railway administration if the
passenger dies or suffers injury due to -
e) any natural cause or disease or medical or
surgical treatment unless such treatment becomes
necessary due to injury caused by the said untoward
incident.
Explanation.- For the purposes of this section,
“passenger” includes-
ii) a person who has purchased a valid ticket for
travelling, by a train carrying passengers, on any date
or a valid platform ticket and becomes a victim of an
untoward incident.
12] As mentioned above, facts are not in dispute. The first
question that arises for my consideration is whether in the facts
and circumstances of this case, the mother and the daughter can
be said to be the passengers under the provisions of the Railways
Act. Section 2(29) as quoted above, generally defines a passenger
to mean a person travelling with a valid pass or ticket. Since we
are concerned with compensation under Section 124-A of the
Railways Act, the explanation to the said Section with respect to
passenger also becomes relevant. As quoted above under the said
explanation “passenger” includes a person who has purchased a
valid ticket for travelling by a train carrying passengers on any
date and becomes the victim in an untoward incident. Nowhere
the above said two provisions which define “passenger” stipulate
that to be a passenger one has to hold a ticket only for any
particular train on which the person is to travel. The Section
merely requires a valid ticket for travelling by train carrying
passengers on any date. Both the mother and the daughter were
admittedly holding a valid ticket for travelling by train from
Nagpur to Pandhurna on 5th January, 2019. A perusal of the ticket
(A-58 of the Record and Proceedings in First Appeal
No.113/2022 and A-131 of the Record and Proceedings in First
Appeal No.114/2022) only indicates the point of boarding as
Nagpur, destination as Pandhurna, the date of travel as
05.01.2019 and the cost of Rs.130/-; it does not indicate the train
by which the person has to travel. Even assuming for a moment,
for argument sake that since the GT Express Train in which the
mother and the daughter got in was not going from Nagpur to
Pandhurna, but was going in an opposite direction from Nagpur
towards Chennai, and therefore, the tickets were not valid for the
journey, however, the two above quoted definitions of passenger
under the Railways Act do not suggest this. All that is required for
availing of the benefit under Section 124-A of the Railways Act is
that the person should have purchased a valid ticket for travelling
by train carrying passengers on any date and has become a victim
of an untoward incident. There is no dispute that the mother and
the daughter had the ticket, but what is being disputed is that they
did not have tickets to travel from Nagpur towards Chennai; but
then the fact is that they did not want to go towards Chennai but
wanted to go to Pandhurna and had mistakenly boarded the
wrong train. Section 124-A of the Railways Act, as observed by
the Apex Court in the case of Union of India ..Vrs.. Prabhakaran
Vijaya Kumar and others, 2008 (2) T.A.C. 777 (SC) is a beneficial
piece of legislation and the provisions have to be interpreted in a
liberal and purposive manner, such that the benefits of the
provisions of Section 124-A of the Railways Act are received by
the Claimants and not in a literal or restrictive manner. The
mother and the daughter in this case purchased a valid ticket.
They were in a train; they were travelling by a train carrying
passengers on the date mentioned on the ticket and they became
victims while trying to alight at Ajni Railway Station. The
ingredients of the definition in the explanation (ii) to Section 124-
A having been met, in my view, both the mother and the daughter
were passengers holding a valid ticket for travelling by train on 5 th
January, 2019 and as such both were bona fide passengers.
13] The next question that arises for consideration is
whether they became victims of an untoward incident or not.
“Untoward incident” has been defined under Section 123(c) as
above. From a bare perusal of the said provision, it is clear that the
incident would not fall under Section 123(c)(1) of the Railways
Act. That would leave us with the provisions of Section 123(c)(2)
of the Railways Act, which defines an untoward incident to mean
the accidental fall in of any passenger from a train carrying
14] At this stage, it would be pertinent to refer to the
decision of the Apex Court in the case of Union of India ..Vrs..
Rina Devi, AIR 2018 SC 2362, has held as under:
16.6 We are unable to uphold the above view as the
concept of ‘self inflicted injury’ would require intention
to inflict such injury and not mere negligence of any
particular degree. Doing so would amount to invoking
the principle of contributory negligence which cannot
be done in the case of liability based on ‘no fault
theory’. We may in this connection refer to judgment
of this Court in United India Insurance Co. Ltd. v.
Sunil Kumar34 laying down that plea of negligence of
the victim cannot be allowed in claim based on ‘no
fault theory’ under Section 163A of the Motor Vehicles
Act, 1988. Accordingly, we hold that death or injury in
the course of boarding or de-boarding a train will be an
‘untoward incident’ entitling a victim to the
compensation and will not fall under the proviso to
Section 124A merely on the plea of negligence of the
victim as a contributing factor.”
15] As can be seen, the Apex Court in the case of Union
of India Vs. Rina Devi (supra), clearly held that death or injury in
the course of boarding or deboarding a train will be an untoward
incident entitling the victim to compensation and will not fall
under the proviso to Section 124-A of the Railways Act merely on
the plea of negligence of the victim. In the facts of this case also
the death of the mother and the injury to the daughter have
occurred in the course of deboarding a train and therefore, clearly
the incident is an untoward incident entitling the respondent to
compensation under Section 124-A of the Railways Act.
16] It is also pertinent here to consider whether the facts
of this case fall within the concept of self-inflicted injury as is
claimed by the learned counsel for the Railways. As can be seen
from the proviso to Section 124-A that the said proviso excludes
payment of compensation under that Section, if a passenger dies
or suffers injury due to suicide or attempt to suicide or self-
inflicted injury or his own criminal act or any act committed in a
state of intoxication or insanity or any natural cause or disease or
medical or surgical treatment. It is settled law that to deny
compensation under these exceptions, it is the Railways that has
to prove that the case falls under these exceptions and there is no
presumption. Neither it has been alleged nor it has been proved
that this is a case of a suicide or attempt to suicide or that it was an
act committed in a state of intoxication or insanity or due to any
natural case or disease or medical or surgical treatment, even the
claim that it is a self-inflicted injury has not been proved.
17] Learned counsel has argued that despite the daughter
being an educated person traveling with her mother and despite
having heard the Railway announcements and despite Ajni not
being a scheduled stoppage, invited disaster by jumping out of a
running train and therefore, this is a case of self-inflicted injury or
their own criminal act.
18] In this context, once again reference to paragraph 16.6
of the decision in the case of Union of India Vs. Rina Devi (supra)
becomes relevant where the Apex Court has held that the concept
of self-inflicted injury would require intention to inflict such
injury and not a mere negligence of any particular degree. So
would a criminal act also require intention. Both the mother and
the daughter wanted to go to Pandhurna to make marriage
purchases and purchased the railway tickets for the said journey. It
is clear from the depositions on record that they heard the public
announcement of the arrival of the GT Express at Nagpur
Railway Station and boarded the GT Express Train. However,
after departure of the GT Express Train from Nagpur, they came
to know that the train was going in an opposite direction and after
enquiring from the passengers, whether or not the said train was
having a scheduled halt at Ajni Railway Station, when the train
was slowing down, they tried to alight and they fell down. The
daughter fell down first and then the mother fell down due to
which, the daughter sustained injuries in both her legs and the
mother died after being grievously injured. It is also clear from the
evidence of the Trackman that the train was going at slow speed.
When a passenger realizes that he has got into a wrong train, the
natural thought that would come to her mind is to somehow or
other get off that train and that is exactly what the daughter and
her mother did when they got off the GT Express Train going in
the wrong direction, when the train slowed down near Ajni
Railway Station. While doing so, both of them fell and the mother
died and the respondent-daughter has injured herself having both
legs amputated. The entire factual matrix nowhere suggests that
the mother and the daughter had any intention to self-inflict an
injury upon themselves or that it was their own criminal act. From
the evidence placed on record, it is clear that the respondent was
about to get married on 28th January, 2019 and the unfortunate
incident has occurred on 5th January, 2019. By no stretch of
imagination, it can be said to be a case of self-inflicted injury or
their own criminal act.
19] Coming to the decision in the case of Fakira Mangal
Gautel Vs. Union of India (supra) relied upon by learned counsel
for the Railways, I am of the view that the said decision is clearly
distinguishable on facts. That was a case where a Railway
employee who would habitually board the said train, which had
no stop at Itwari Railway Station and on one unfortunate
occasion, fell down in that process and lost his legs. Also in that
case being an employee of the Railways, he was suitably
compensated under the Workmen’s Compensation Act. The said
Railway employee had knowing fully well of the consequences
self-inflicted upon himself the injury which caused the loss of his
legs. That clearly is not the case here. In my view, the said decision
20] In the case of Union of India Vs. Anuradha Narendra
Deshmukh (supra), where the respondent had boarded the wrong
train and fell down from the said train, this Court went on to hold
that the Railway Administration was liable for compensation as
even though it may be a rash and negligent act, but certainly it
was not a criminal act so as to exempt the Railway Administration
from paying compensation. It was observed that if a passenger
unguided by security personnel/ticket checkers mistakenly
boarded a wrong train and on realizing his mistake due to panicky
situation accidently fell down from the train, he cannot be
deprived of the compensation under Section 124-A of the
21] The facts in the present case are different and
distinguishable. In the facts of the case at hand, the mother and
the daughter were not guided into the train carrying passengers by
any Railway Authority/RPF Personnel or warned or prevented
from alighting/deboarding the train at Ajni Railway Station.
Naturally being anxious to get off of the wrong train, they met
with the unfortunate consequences and cannot be said to have
intentionally or deliberately inflicted injury upon themselves. It
would be preposterous to suggest that they self-inflicted injury or
committed a criminal act.
22] This, therefore, is a case of untoward incident as
elucidated by the Apex Court in the case of Union of India Vs.
Rina Devi (supra) entitling the respondents, who were bona fide
passengers, to compensation under Section 124-A of the Railways
23] There being neither any perversity nor any error in
the judgment of the Railway Claims Tribunal warranting any
interference, the appeals deserve to be dismissed and are hereby
dismissed. No costs.
24] All to act on an authenticated copy of this decision. | The Bombay High Court recently held that a person carrying a ticket for a different train/journey than the one he actually undertakes would also be "passenger" under Railways Act, 1989 and will be entitled to compensation in case of an accident.
"Nowhere the above said two provisions (sections 2(29) and 124-A) which define "passenger" stipulate that to be a passenger one has to hold a ticket only for any particular train on which the person is to travel. The Section merely requires a valid ticket for travelling by train carrying passengers on any date".
Justice Abhay Ahuja of the Nagpur bench upheld the compensation granted by the Railway Claims Tribunal in a case where the victims boarded the wrong train and fell down while trying to alight from it.
A mother-daughter duo wanted to go from Nagpur to Pandhurna for making marriage purchases and had valid tickets for the same. They boarded GT Express Train going towards Chennai i.e., the opposite direction. Realising that they boarded the wrong train, they tried to alight at Ajni railway station which is not a scheduled stop of the train. They fell and the mother succumbed to her injuries while the daughter was grievously injured and both her legs were amputated. The Railway Claims Tribunal awarded compensation. Hence, the Railways filed the present appeals.
The Railways' case was that the daughter had a Masters in Computer Application and was intelligent enough to understand that they got into the wrong train. But they were negligent and boarded the wrong train. Further, despite knowing that a chain can be pulled for stopping a train if required, they alighted the running train at a station not having scheduled halt. Thus, the mother-daughter duo did not have a valid ticket and this was a case of self-infected injury.
Section 2(29) defines a passenger as a person travelling with a valid pass or ticket. As per the explanation of section 124A of the Act, passenger includes a person who has a purchased valid ticket for travelling by a train carrying passengers on any date and becomes the victim in an untoward incident.
The court said that the aforementioned provisions do not specify that the passenger has to hold a ticket for any particular train on which the person has to travel.
The court noted that both mother and daughter were holding a valid ticket and the ticket only indicates the boarding point and destination as well as the date of travel. It does not include the train by which the person has to travel.
The court said that the Railways Act is a beneficial legislation and section 124A has to be interpreted liberally. In this particular case, the mother daughter duo purchased a ticket, they were in a train carrying passengers on the date mentioned on the ticket, and they became victims while trying to alight at Ajni railway station.
Therefore, the ingredients of section 124A, explanation (ii) have been met and the mother and daughter were bonafide passengers, the court concluded.
The court said that this incident is an untoward incident under section 123(c)(2) of the Act.
The court noted that the train was going at a slow speed at Ajni railway station as per the evidence of the Trackman. The facts don't suggest that the mother and daughter had any intention to inflict injury on themselves, the court said.
"When a passenger realizes that he has got into a wrong train, the natural thought that would come to her mind is to somehow or other get off that train and that is exactly what the daughter and her mother did when they got off the GT Express Train going in the wrong direction, when the train slowed down near Ajni Railway Station", the court said.
The court noted that the daughter was about to get married a few days after the incident. "By no stretch of imagination, it can be said to be a case of self-inflicted injury or their own criminal act", the court held.
Therefore, the court did not find any perversity or error in the tribunal's judgement and dismissed both the appeals.
Case no. – First Appeal Nos. 113 and 114 of 2022
Case title – Union of India v. Reena D/o Kishor Kharwade with one connected case |
Advocate (Crl. Side) appearing for the respondents 1 & 2 and the learned counsel
appearing for the third respondent.
2. This Criminal Appeal has been filed to call for the records and set-aside the order
passed by the learned learned Sessions Judge, Special Court for Trial of SC / ST
(PoA) Act Cases, Theni District, dated 22.12.2022 made in Cr.M.P.No. 1414 of 2022
and enlarge the appellant on bail.
3. The appellant, who was arrested and remanded to judicial custody on 03.12.2022,
for the offences punishable under Sections 510 IPC r/w Section 3(1)(w)(ii), 3(2)(va) of
SC/ST (POA) Amendment Act 2015, in Crime No.301 of 2022 on the file of the
respondent police, seek appeal bail.
The defacto complainant lodged a complaint stating that on 27.11.2022 after
purchasing the vegetables in Gudalur weekly market, she was standing in front of the
market at about 08.00 p.m., the accused came to the place in drunken mood and
demanded her cell phone. When she objected the same, he insisted and caused
trouble and also misbehaved with her. Later he left from that place. On the basis of
the above said occurrence, she lodged a complaint. Therefore, the petitioner was
arrested and remanded to judicial custody on 03.12.2022. Ever since, he is in custody.
Seeking bail, he moved the Special Court and that was dismissed. Against which, this
appeal has been preferred.
5. At the time of arguments, the defacto complainant's father was also present before
this Court and on behalf of the defacto complainant an Advocate was appointed and
he would submit that in a drunken mood, this petitioner misbehaved with victim. They
belonged to upper caste and if he is released on bail, there is every likelihood of
causing trouble again.
6. The learned Government Advocate (Crl. Side) would submit that the petitioner is a
habitual offender. Against whom, several proceedings under Sections 107 and 110
Cr.P.C. have been initiated. Apart from that he is also having two previous cases under
IPC offences and he is a frequent trouble maker. The learned Government Advocate
has also produced the list of cases. Perusal of the list shows that some of the cases
have been disposed of and some of the cases ended in acquittal. This shows that the
petitioner is not having and keeping good conduct. But however, considering the
period of incarceration and also considering the fact that the above said misbehaviour
was alleged to have been caused by the petitioner in a drunken mood, he was directed
to file undertaking affidavit before this Court. He has also produced an undertaking
affidavit stating that the above said occurrence was committed by mistake.
Considering the above said undertaking affidavit, this Court is inclined to allow this
appeal and grant bail to the appellant with certain conditions.
7. Accordingly, the Criminal Appeal is allowed and the order, dated 22.12.2022 made
in Crl.M.P.No.1414 of 2022 on the file of the learned Sessions Judge, Special Court
for Trial of SC / ST (PoA) Act Cases, Theni District, is set aside. The appellant is
ordered to be released on bail on his executing a bond for a sum of Rs.10,000/-
(Rupees Ten Thousand Only) with two sureties, each for a like sum to the satisfaction
of the learned Sessions Judge, Special Court for Trial of SC / ST (PoA) Act Cases,
Theni District, and on further condition that:
[a] the appellant shall file an undertaking affidavit to the effect that he will not make
any trouble to the defacto complainant in future;
[b] the appellant shall appear before the concerned court, daily at 10:30 a.m. until
[c] the appellant shall not tamper with evidence or witness either during
[d] the appellant shall not abscond either during investigation or trial;
[e] On breach of any of the aforesaid conditions, the Trial Court is entitled to take
appropriate action against the appellant in accordance with law, as if the conditions
have been imposed and the appellant released on bail by the Trial Court itself as laid
down by the Hon'ble Supreme Court in P.K.Shaji vs. State of Kerala [(2005)AIR | The Madras High Court recently granted bail to a man arrested for misbehaving with a woman belonging to the SC/ST Community.
While Justice G Ilangovan agreed that the man was not having good conduct, the court noted that considering the period of incarceration and the fact that the alleged act was done in a drunken state, the man was entitled to bail.
"The learned Government Advocate has also produced the list of cases. Perusal of the list shows that some of the cases have been disposed of and some of the cases ended in acquittal. This shows that the petitioner is not having and keeping good conduct. But however, considering the period of incarceration and also considering the fact that the above said misbehaviour was alleged to have been caused by the petitioner in a drunken mood, he was directed to file undertaking affidavit before this Court. He has also produced an undertaking affidavit stating that the above said occurrence was committed by mistake. Considering the above said undertaking affidavit, this Court is inclined to allow this appeal and grant bail to the appellant with certain conditions."
The case of the prosecution was that while the complainant was at a market, the appellant came in a drunken mood and demanded her cell phone. When she objected the same, he caused trouble and also misbehaved with her and left the place.
The woman lodged a complaint based on which he was arrested and remanded to judicial custody. The accused was booked under Section 510 IPC and Section 3(1)(w)(ii), 3(2)(va) of SC/ST (POA) in the case.
The appellant was in custody since December, 2022. Though he had earlier moved the Special Court for bail, his application was dismissed. Against the dismissal, the appeal was filed before the High Court.
The complainant and the prosecution opposed the bail, stating that the appellant had committed the offence in a drunken state and that he is a habitual offender. It was submitted that he is a frequent trouble maker.
The court, however, was inclined to grant bail on certain conditions.
Case Title: Sivankalai v. The State and others |
The petitioner-husband is before this Court praying to
quash the order dated 12.06.2019 passed in
Crl.R.P.No.14/2019 by the learned Sessions Judge, Dharwad
confirming the order passed by the learned Magistrate in
Crl.Misc.141/2015 dated 15.10.2018.
2. Heard Miss.Joshna P Dhanave, learned counsel for
the petitioner. Respondent is served and un-represented.
3. Sans details, facts in brief germane for a resolution
of the dispute in the lis are as follows:
The petitioner and the respondent are husband and
wife. Marriage between them takes place on 13.04.2001.
The marital life between the couple appears to have turned
sore, pursuant to which, among other proceedings the
respondent-wife files a petition in Crl.Misc.No.2/2009
invoking Section 12 of the Protection of Women from
Domestic Violence Act, 2005 (‘Act’ for short). The learned
Magistrate before whom the miscellaneous case was filed
under the Act while entertaining the case awards a
maintenance of Rs.1,000/-. After invoking the provisions of
the Act, the respondent-wife files a petition in
Crl.Misc.No.141/2015 invoking Section 127 of the Cr.P.C. for
enhancement of the maintenance amount awarded under the
Act. The petition is allowed and the respondent-wife is
awarded maintenance of Rs.5,000/- from the date of the
4. Feeling aggrieved by the order passed in
Crl.Misc.No.141/2015, the petitioner-husband files Criminal
Revision Petition in Crl.R.P.No.14/2019 invoking Section 397
of the Cr.P.C. The learned Sessions Judge dismisses the said
Revision Petition by his order dated 12.06.2019 confirming
the order passed by the learned Magistrate enhancing
maintenance to the wife from Rs.1,000/- to Rs.5,000/-. It is
these two orders that are called in question in the subject
5. The learned counsel appearing for the petitioner-
husband Miss. Joshan P Dhanave would vehemently argue
and contend that the respondent once having invoked the
provisions of the Act could not have filed an application
seeking enhancement under Section 127 of the Cr.P.C. The
order passed by the learned Magistrate as affirmed by the
learned Sessions Judge are orders without jurisdiction. The
learned counsel would seek quashment of the said orders.
6. The respondent-wife is served and remains
7. I have given my anxious consideration to the
submissions made by the learned counsel appearing for the
petitioner and perused the material on record. In
furtherance whereof, the only issue that falls for my
consideration is, “Whether the maintenance awarded
under the Domestic Violence Act can be sought to be
enhanced under the Cr.P.C.?”
8. The afore-narrated facts are not in dispute. The
respondent-wife invokes Section 12 of the Act seeking reliefs
that are available under Section 12. Section 12 reads as
“12. Application to Magistrate.—(1) An aggrieved
person or a Protection Officer or any other person on
behalf of the aggrieved person may present an application
to the Magistrate seeking one or more reliefs under this
Provided that before passing any order on such application,
the Magistrate shall take into consideration any domestic
incident report received by him from the Protection Officer or the
service provider.
(2) The relief sought for under sub-section (1) may
include a relief for issuance of an order for payment of
compensation or damages without prejudice to the right
of such person to institute a suit for compensation or
damages for the injuries caused by the acts of domestic
violence committed by the respondent:
Provided that where a decree for any amount as
compensation or damages has been passed by any court in
favour of the aggrieved person, the amount, if any, paid or
payable in pursuance of the order made by the Magistrate under
this Act shall be set off against the amount payable under such
decree and the decree shall, notwithstanding anything contained
in the Code of Civil Procedure, 1908 (5 of 1908), or any other law
for the time being in force, be executable for the balance amount,
if any, left after such set off.
(3) Every application under sub-section (1) shall be in such
form and contain such particulars as may be prescribed or as
nearly as possible thereto.
(4) The Magistrate shall fix the first date of hearing, which
shall not ordinarily be beyond three days from the date of receipt
of the application by the court.
(5) The Magistrate shall endeavour to dispose of every
application made under sub-section (1) within a period of sixty
days from the date of its first hearing.”
The relief that is granted by the learned Magistrate is
awarding of maintenance of Rs.1,000/- to be paid by the
husband-petitioner to the respondent-wife. Maintenance
under the said order was all along being paid.
9. Things standing thus, the respondent-wife files a
petition in Crl.Misc.141/2015 invoking Section 127 of the
Cr.P.C. seeking enhancement of an amount awarded under
the Act. The learned Magistrate allows the petition and
enhances the maintenance from Rs.1,000/- to Rs.5,000/-.
The learned Magistrate enhances the maintenance amount
awarded under the Act in a petition filed for enhancement
under the Cr.P.C. The Sessions Judge, in revision, affirms
the view taken by the learned Magistrate.
10. In order to resolve the issue, it is germane to notice
Sections 125 and 127 of the Cr.P.C. and they read as follows:
“125. Order for maintenance of wives, children and
parents.—(1) If any person having sufficient means
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child,
whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a
married daughter) who has attained majority, where
such child is, by reason of any physical or mental
abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself
a Magistrate of the first class may, upon proof of such neglect
or refusal, order such person to make a monthly allowance
for the maintenance of his wife or such child, father or
mother, at such monthly rate 66[* * *], as such Magistrate
thinks fit, and to pay the same to such person as the
Magistrate may from time to time direct:
Provided that the Magistrate may order the father of a
minor female child referred to in clause (b) to make such
allowance, until she attains her majority, if the Magistrate is
satisfied that the husband of such minor female child, if
married, is not possessed of sufficient means:
67[Provided further that the Magistrate may, during the
pendency of the proceeding regarding monthly allowance for
the maintenance under this sub-section, order such person to
make a monthly allowance for the interim maintenance of his
wife or such child, father or mother, and the expenses of such
proceeding which the Magistrate considers reasonable, and
to pay the same to such person as the Magistrate may from
Provided also that an application for the monthly
allowance for the interim maintenance and expenses for
proceeding under the second proviso shall, as far as possible,
be disposed of within sixty days from the date of the service
of notice of the application to such person.]
Explanation.—For the purposes of this Chapter,—
(a) “minor” means a person who, under the provisions of
the Indian Majority Act, 1875 (9 of 1875), is deemed not to
(b) “wife” includes a woman who has been divorced by, or
has obtained a divorce from, her husband and has not
remarried.
68[(2) Any such allowance for the maintenance or interim
maintenance and expenses for proceeding shall be payable
from the date of the order, or, if so ordered, from the date of
the application for maintenance or interim maintenance and
expenses of proceeding, as the case may be.]
(3) If any person so ordered fails without sufficient cause
to comply with the order, any such Magistrate may, for
every breach of the order, issue a warrant for levying the
amount due in the manner provided for levying fines, and
may sentence such person, for the whole or any part of each
month's 69[allowance for the maintenance or the interim
maintenance and expenses of proceeding, as the case may
be,] remaining unpaid after the execution of the warrant, to
imprisonment for a term which may extend to one month or
Provided that no warrant shall be issued for the recovery
of any amount due under this section unless application be
made to the Court to levy such amount within a period of one
year from the date on which it became due:
Provided further that if such person offers to maintain his
wife on condition of her living with him, and she refuses to
live with him, such Magistrate may consider any grounds of
refusal stated by her, and may make an order under this
section notwithstanding such offer, if he is satisfied that there
is just ground for so doing.
Explanation.—If a husband has contracted marriage with
another woman or keeps a mistress, it shall be considered to
be just ground for his wife's refusal to live with him.
(4) No wife shall be entitled to receive an 70[allowance for
the maintenance or the interim maintenance and expenses of
proceeding, as the case may be,] from her husband under
this section if she is living in adultery, or if, without any
sufficient reason, she refuses to live with her husband, or if
they are living separately by mutual consent.
(5) On proof that any wife in whose favour an order has
been made under this section is living in adultery, or that
without sufficient reason she refuses to live with her
husband, or that they are living separately by mutual
consent, the Magistrate shall cancel the order.
127. Alteration in allowance.—73[(1) On proof of a
change in the circumstances of any person, receiving,
under Section 125 a monthly allowance for the
maintenance or interim maintenance, or ordered under
the same section to pay a monthly allowance for the
maintenance, or interim maintenance, to his wife,
child, father or mother, as the case may be, the
Magistrate may make such alteration, as he thinks fit,
in the allowance for the maintenance or the interim
(2) Where it appears to the Magistrate that, in
consequence of any decision of a competent civil court,
any order made under Section 125 should be cancelled
or varied, he shall cancel the order or, as the case may
be, vary the same accordingly.
(3) Where any order has been made under Section 125 in
favour of a woman who has been divorced by, or has
obtained a divorce from, her husband, the Magistrate shall, if
(a) the woman has, after the date of such divorce,
remarried, cancel such order as from the date of her
(b) the woman has been divorced by her husband and that
she has received, whether before or after the date of the
said order, the whole of the sum which, under any
customary or personal law applicable to the parties, was
payable on such divorce, cancel such order,—
(i) in the case where such sum was paid before such
order, from the date on which such order was made,
(ii) in any other case, from the date of expiry of the
period, if any, for which maintenance has been actually
(c) the woman has obtained a divorce from her husband
and that she had voluntarily surrendered her rights
to 74[maintenance or interim maintenance, as the case
may be,] after her divorce, cancel the order from the date
thereof.
(4) At the time of making any decree for the recovery of
any maintenance or dowry by any person, to whom
a 75[monthly allowance for the maintenance and interim
maintenance or any of them has been ordered] to be paid
under Section 125, the civil court shall take into account the
sum which has been paid to, or recovered by, such
person 76[as monthly allowance for the maintenance and
interim maintenance or any of them, as the case may be, in
pursuance of] the said order.”
Section 125 of the Cr.P.C. enables the wife to seek
maintenance at the hands of the husband inter alia.
Invoking this provision, the learned Magistrate can award
maintenance. Section 127 of the Cr.P.C. deals with
alteration in allowance. A maintenance that is awarded
under Section 125 of the Cr.P.C. can be varied in an
application filed under Section 127 of the Cr.P.C. What is
sine qua non is that an order of maintenance should precede
a petition under Section 127 of the Cr.P.C., failing which, a
petition under Section 127 of the Cr.P.C. seeking
enhancement of maintenance is not available.
11. It is an undisputed fact that the respondent-wife
invoked the provisions of the Act in which maintenance was
awarded. It is also an admitted fact that there is no
proceeding initiated by the respondent-wife invoking Section
125 of the Cr.P.C. Therefore, without there being any
determination of maintenance under Section 125 of the
Cr.P.C., petition under Section 127 of the Cr.P.C. is not
12. The language employed in Section 127 of the
Cr.P.C. is unequivocal as on a proof of change in the
circumstances of any person receiving allowance under
Section 125 of Cr.P.C. can maintain a petition under Section
127 of the Cr.P.C. A proceeding under Section 125 of the
Cr.P.C. therefore should precede a proceeding under Section
127 of the Cr.P.C.
13. The fact that provisions of Act was invoked for
grant of maintenance and provisions of Cr.P.C. are invoked
seeking enhancement of maintenance cannot be
countenanced in law. Therefore, the order passed by the
learned Magistrate enhancing maintenance under Section
127 of the Cr.P.C. was without jurisdiction and a nullity in
law. The foundation being a nullity in law, a super structure
to it affirming the order of the learned Magistrate, by the
learned Sessions Judge will have to follow suit – is to be
declared a nullity in law.
14. Therefore, on a coalesce of the aforesaid provisions
that falls for consideration in the case at hand and the
undisputed facts, would lead to an unmistakable inference
that both the orders of the learned Magistrate and the
learned Sessions Judge are to be obliterated.
15. For the aforesaid reasons, the following:
(i) The Criminal Petition is allowed.
(ii) The order passed by the learned Magistrate in
Crl.Misc.141/2015 dated 15.10.2018 and the
order dated 12.06.2019 passed by the learned
Sessions Judge in Crl.R.P.No.14/2019 stand
quashed.
(iii) Quashment of the aforesaid orders will not
preclude the respondent-wife in initiating any
such proceeding in a manner known to law. | The Karnataka High Court has held that maintenance awarded to an estranged wife under the provisions of Protection of Women from Domestic Violence Act, 2005, cannot be enhanced on an application made by her under section 127 of the Criminal Procedure Code (CrPC). A single judge bench of Justice M. Nagaprasanna said, "A maintenance that is awarded under Section 125 of the Cr.P.C. can...
The Karnataka High Court has held that maintenance awarded to an estranged wife under the provisions of Protection of Women from Domestic Violence Act, 2005, cannot be enhanced on an application made by her under section 127 of the Criminal Procedure Code (CrPC).
A single judge bench of Justice M. Nagaprasanna said,
"A maintenance that is awarded under Section 125 of the Cr.P.C. can be varied in an application filed under Section 127 of the Cr.P.C. What is sine qua-non is that an order of maintenance should precede a petition under Section 127 of the Cr.P.C., failing which, a petition under Section 127 of the Cr.P.C. seeking enhancement of maintenance is not available."
The court quashed the orders passed by the magistrate court enhancing the maintenance amount granted to the wife under Section 12 of the DV Act from Rs 1,000 to Rs 5,000, which was confirmed by the sessions judge.
The bench said,
"It is an undisputed fact that the respondent-wife invoked the provisions of the Act in which maintenance was awarded. It is also an admitted fact that there is no proceeding initiated by the respondent-wife invoking Section 125 of the Cr.P.C. Therefore, without there being any determination of maintenance under Section 125 of the Cr.P.C petition under Section 127 of the Cr.P.C. is not maintainable."
It added,
"The language employed in Section 127 of the Cr.P.C. is unequivocal as on a proof of change in the circumstances of any person receiving allowance under Section 125 of Cr.P.C. can maintain a petition under Section 127 of the Cr.P.C. A proceeding under Section 125 of the Cr.P.C. therefore should precede a proceeding under Section 127 of the Cr.P.C."
Following which the court held, "The fact that provisions of Act was invoked for grant of maintenance and provisions of Cr.P.C. are invoked seeking enhancement of maintenance, cannot be countenanced in law. Therefore, the order passed by the learned Magistrate enhancing maintenance under Section 127 of the Cr.P.C. was without jurisdiction and a nullity in law. The foundation being a nullity in law, a super structure to it affirming the order of the learned Magistrate, by the learned Sessions Judge will have to follow suit – is to be declared a nullity in law."
Case Background:
The couple married on 13.04.2001. Following the marital life turning sore, the wife filed an application invoking Section 12 of the Protection of Women from Domestic Violence Act, 2005. The magistrate court awarded a maintenance of Rs.1,000. Later the wife filed a petition invoking Section 127 of the Cr.P.C. for enhancement of the maintenance amount awarded under the Act. The petition came to be allowed and the magistrate court increased the maintenance amount to Rs.5,000, from the date of the order.
The husband challenged the order before sessions court; the court confirmed the order of the magistrate court. Following which he approached the High Court.
Case Title: Shivanand S/O Karabasappa Gurannavar v. Basavva @ Laxmi W/O Shivanand Gurannavar
Case No: Criminal Petition No.101378/2019
Date of Order: 17th Day Of February 2022
Appearance: Advocate R. H. Angadi, a/w advocate Joshna P. Dhanave for petitioner |
(2 of 11) [CW-13178/2021]
Adv. on behalf of Mr. Shobhit Tiwari,
The present writ petition has been filed by the petitioners i.e.
petitioner No.1 who is a candidate and ward of insured person for
the purpose of admission in MBBS/BDS Under Graduate Courses
and petitioner No.2 is the father of the petitioner No.1 claiming
himself to be insured person as per the provisions contained in the
The grievance raised in the present writ petition is in respect
of not treating the petitioner No.1 eligible for the purpose of
admission as ward of insured person and order dated 04.10.2021
issued by the respondent-Corporation is also put to challenge
whereby the petitioner No.1 has not been extended benefit as the
petitioner No.2 is said to be not insured person on 31.03.2021.
The facts of the case in nutshell are that the National Testing
Agency issued a Public Notice inviting Online Applications for
National Eligibility Cum Entrance Test [(NEET (UG)] 2021 for
admission to the undergraduate medical courses.
(3 of 11) [CW-13178/2021]
The Information Booklet was issued containing detailed
information and as per the Information Booklet, the eligibility
criteria to appear/admission was provided.
The petitioner No.1 finding himself to be eligible in terms of
notice in Information Booklet applied online for NEET (UG) 2021
and he was issued admit card in EWS category.
The petitioner appeared in the examination and result was
declared on 01.11.2021 and petitioner is said to have secured
97.4779718 percentile score and secured 562 marks out of 720
with an All India Rank 38661.
The petitioner has pleaded that on 13.09.2021, Employees’
State Insurance Corporation (hereinafter referred to as “the
ESIC”) issued an admission notice for admission of wards of
insured persons (IPs) in UG Courses and it provided that there
shall be insured persons quota for admission in MBBS/BDS Course
in favour of those candidates, whose either parent is insured
person as on 31.03.2021 and they must have insured person
certificate and the candidate must have ward of insured person
certificate. The said notice further reveals that Clause No.7.10
provided that the critical date for examining eligibility for insured
person (IP) will be 31.03.2021 and Clause No.5.2.2(b) specified
that candidate must have valid Ward of IP Certificate issued by the
The petitioner No.2 has pleaded that the petitioner No.2
being father of the petitioner No.1 had worked on the post of Lab
Assistant at MDVM (Parle) School, Neemrana, Alwar from
01.01.2017 to 06.05.2020 and while working with such an
employer, the ESI contributions were regularly deposited by the
employer and his account was active. It is pleaded that on account
(4 of 11) [CW-13178/2021]
of COVID-19 situation and direct impact upon school functioning,
the petitioner No.2 was not continued and as such the petitioner
No.2 got an employment on the post of Lab Assistant in Raffles
University, Neemrana and by issuance of an appointment order
dated 03.03.2021, the petitioner No.2 is said to have joined on
the same day and he has placed on record the attendance register
as Annexure-9 to the writ petition.
The petitioner No.2 has pleaded that Raffles University also
issued the certificate showing the working of the petitioner No.2
as Lab Assistant from 03.03.2021. The petitioner No.2 has also
placed on record his pay slip of March, 2021 and his bank
statement. The pay slip reflects that Rs.148/- were deducted
towards ESI contribution and he was paid gross salary of
Rs.21,000/- and after deduction his net pay was Rs.19,497/-.
The petitioner No.1 applied for issuance of Ward of Insured
Person Certificate and submitted required documents on
23.09.2021 and on the same day, the petitioner No.2 also applied
to ESIC Jaipur for issuance of Ward of Insured Person Certificate in
favour of petitioner No.1.
The petitioners have pleaded that on 04.10.2021, the
application of petitioner No.1 was rejected on the ground that the
petitioner No.2 was not an insured person on 31.03.2021.
The petitioners have pleaded that when they downloaded the
details of insured persons from Portal of ESIC, they found that
current date of appointment of petitioner No.2, is incorrectly
shown as 13.05.2021 instead of 03.03.2021.
The petitioners are said to have given different
representations to the concerned Authorities for issuance of
(5 of 11) [CW-13178/2021]
proper certificate, however, when there was no response from the
respondents, the present writ petition has been filed.
Learned counsel for the petitioner-Mr. Pushpendra Pal Singh
Tanwar appearing on behalf of Mr. Shobhit Tiwari, Adv. has made
following submissions:-
(1) The Clause No.7.10 of the Admission Notice dated
13.09.2021 provides that eligibility of insured persons for availing
benefits under the Insured Persons Quota for their Ward was
31.03.2021 and since the petitioner No.2 was insured person as
per the Act of 1948 as on 31.03.2021, as such the petitioner No.1
was eligible for availing benefit under the Insured Persons Quota.
The petitioner No.2 since was in employment from
03.03.2021 and if employer had made deduction from the salary
of the petitioner No.2, the petitioner No.2 would be treated to be
insured person as on critical date of 31.03.2021.
(2) The date of employment, as taken by the respondent-
Corporation of petitioner No.2 with effect from 13.05.2021, is a
wrong act on the part of respondent-Corporation and only if
contribution was subsequently given by the employer and
deposited with the ESIC, the same would not result into depriving
the petitioners from the benefit of insured person. The error of
employer cannot come in the way of getting benefit to the insured
person and relevant date would be the deduction of the
contribution and not depositing the same by the employer to the
(3) The notice dated 13.09.2021 filed as Annexure-19 with
the rejoinder, provides in Clause 8.3.10 that bonafide status of IPs
who have registered after 31.03.2021 but claim benefit prior to
31.03.2021, may be ensured by the Certificate issuing Authority
(6 of 11) [CW-13178/2021]
and as such even if the status of the petitioner No.2 has been
registered after 31.03.2021, the same cannot result into depriving
the petitioners from benefits, as the benefit is claimed on the
basis of deduction of the contribution prior to 31.03.2021.
(4) Learned counsel submitted that issue with regard to the
non payment of contribution and action or non-action of the
employer to deposit the contribution has been considered by the
Apex Court in the case of Bharagath Engineering Vs. R.
Ranganayaki and Ors., 2003 (2) SCC 138.
(5) The similar controversy has also been examined by the
Kerala High Court in WP (C) No.17305 of 2018 (Hari R. Nair &
Anr. Versus The Director General & Ors.) by judgment dated
Learned counsel-Dr. Arjun Singh Khangarot appearing for the
respondent-ESIC has submitted that the action of the respondents
in denying certificate to the petitioners is justified as the
admission notice dated 13.09.2021 in Clause 8, clearly provides in
its note that critical date for eligibility under IP Quota would be
31.03.2021 i.e. only a person who is a insured person as per the
Act on 31.03.2021, would be eligible for availing benefit for
Insured Persons Quota for his/her child/children.
Learned counsel for the respondent-ESIC submitted that
since on the critical date of 31.03.2021, the petitioner No.2 was
not an insured person and as such no benefit could have been
Learned counsel for the respondent-ESIC further submitted
that as per Para 8 in the reply, the second employer of the
petitioner No.2 had shown the date of appointment of the
(7 of 11) [CW-13178/2021]
petitioner No.2 as 31.05.2020 (date of registration 09.06.2020)
and the date of last working day was 30.11.2020.
The respondents have further pleaded that the employer had
shown the date of appointment of the petitioner No.2 as
13.05.2021 while making registration on 22.05.2021 and both the
employer of the petitioner No.2 during the period from April 2020
to November 2020, deposited contribution for a total period of 42
days and therefore as on 31.03.2021, the petitioner No.2 does not
fall within the definition of Insured Person.
Learned counsel-Mr. Angad Mirdha and Mr. Divyesh
Maheshwari appearing for the respondents submitted that the
dispute in the present petition is in respect of not treating the
petitioners eligibility as insured persons and their ward and as
such, this Court is required to decide the controversy after taking
into account the pleas raised by the contesting respondents.
I have considered the submissions made by the learned
counsel for the parties.
This Court finds that the definition of insured person is given
in Section 2 (14) of the Employees’ State Insurance Act, 1948 and
insured person means a person who is or was an employee in
respect of whom contributions are or were payable under the Act
and who by reason thereof, is entitled to any of the benefits
provided by this Act.
This Court further finds that Section 39 of the Act provides
about the contribution and as per clause (a) of sub-section (5) if
any contribution payable under the Act is not paid by the principal
employer on the date on which such contribution has become due,
he is liable to pay simple interest at the rate of 12% per annum or
(8 of 11) [CW-13178/2021]
at such higher rate, as may be specified in the regulations, till the
date of its actual payment.
Amount of interest recoverable under clause (a) may be
recovered as an arrear of land revenue or under section 45-C to
This Court further finds that Section 68 of the Act deals with
the rights of Corporation where a principal employer fails or
neglects to pay any contribution and provides that if any principal
employer fails or neglects to pay any contribution under the Act
which he is liable to pay in respect of any employee and by reason
thereof such person becomes dis-entitled to any benefit or entitled
to a benefit on a lower scale, the Corporation on being satisfied
that the contribution should have been paid by the principal
employer, may pay to the person the benefit at the rate to which
he would have been entitled if the failure or neglect had not
occurred and the Corporation shall be entitled to recover from the
principal employer either the difference between the amount of
benefit which is paid by the Corporation to the said person and the
amount of the benefit which would have been payable on the basis
of the contributions which were in fact paid by the employer or
twice the amount of the contribution.
The bare reading of aforesaid provisions clearly provides that
the insured person is not only the person who has paid the
contribution but also includes a person whose contribution is
payable and not actually paid due to any reason, like delay, on the
part of employer, etc.
This Court further finds that it is the duty of the principal
employer to pay the contribution under the Act on the date when
it becomes due and if he fails to do so, the Corporation has power
(9 of 11) [CW-13178/2021]
to recover the same from the principal employer even by charging
This Court further finds that if there is a neglect on the part
of an employer, as per provision contained in Section 68, the
person cannot be declined the benefits or his entitlement if the
employer has failed to deposit the contribution.
This Court finds that in the present facts of the case, the
registration prior to 31.03.2021 is also not very crucial and
important and as per Clause 8.3.10 of notice dated 13.09.2021,
the status of IPs who were registered after 31.03.2021 but claim
benefit prior to 31.03.2021 may be ensured by the Certificate
The facts in the present case show that the petitioner No.2
was employed with the second employer on 03.03.2021, his pay
slip for the month of March 2021 also shows that ESI deduction
was made of Rs.148/- from his salary and the bank statement
along-with pay-slip for the month of March, 2021 also shows that
the petitioner No.2 had received the salary after the deduction of
This Court is not inclined to accept the argument of the
learned counsel for the respondents that since the contribution
was not deposited by the employer with the ESI Corporation and
as such, the petitioner No.1 will not be entitled for issuing
certificate of Ward of Insured Persons. The non-deposit of
contribution in spite of deduction will not make the person dis-
entitle for the benefit of ward of insured person if the insured
person had paid the contribution to his employer prior to
(10 of 11) [CW-13178/2021]
This Court also finds that merely receiving the contribution,
subsequently after 31.03.2021, by the ESI Corporation and some
information being furnished about employment date of the insured
person showing it to be contrary to the record of the contribution,
will not deprive insured person benefits under the Act.
This Court finds that the Apex Court in the case of Bharagath
Engineering Vs. R. Ranganayaki and Ors. (supra) has clearly held
that the employer cannot be heard to contend that since he had
not deducted the employee’s contribution on the wages of the
employee, he will not be liable. The Apex Court has held that
Section 38 of the Act, casts a statutory obligation on the employer
to insure its employees and the date of commencement has to be
from the date of appointment of the concerned employee.
This Court also finds that the Kerala High Court in the case of
Hari R. Nair & Anr. Versus The Director General & Ors. (supra), has
also considered the similar issue and has found that the
Corporation cannot deny the otherwise eligible insured person, the
certificate on the premise employer contributed or filed the returns
This Court accordingly finds that the respondent-Corporation
has acted arbitrarily in issuing the order dated 04.10.2021 and
accordingly, the same is quashed and set aside.
The petitioner No.1 is held entitled for grant of status as
ward of insured person for the purpose of admission in ESIC
The respondent-Corporation would issue the necessary
certificate to the petitioner No.1 within the shortest possible time
and preferably within 5 (five) days from the date of this order.
(11 of 11) [CW-13178/2021]
The petitioner thereafter would be eligible to participate in
the counselling process for the purpose of admission in ESI quota
and if he finds his merit and eligibility, his case will accordingly be
considered by the respondents for the purpose of admission.
Consequently, the present writ petition stands allowed. | The Rajasthan High Court, Jaipur Bench has allowed a NEET Candidate to avail the benefit of ESIC quota (ward of insured person quota) in the counselling process for admissions in MBBS/BDS Course.Notwithstanding the fact that the requisite contributions to the Employees' State Insurance Corporation were not paid by the employer concerned, the Court held that the candidate cannot be denied...
The Rajasthan High Court, Jaipur Bench has allowed a NEET Candidate to avail the benefit of ESIC quota (ward of insured person quota) in the counselling process for admissions in MBBS/BDS Course.
Notwithstanding the fact that the requisite contributions to the Employees' State Insurance Corporation were not paid by the employer concerned, the Court held that the candidate cannot be denied the benefit of quota, provided his father, the insured person, had paid his contribution prior to the cut-off date.
Justice Ashok Kumar Gaur observed,
"The non-deposit of contribution in spite of deduction will not make the person disentitle for the benefit of ward of insured person if the insured person had paid the contribution to his employer prior to 31.03.2021."
It ordered,
"The respondent-Corporation has acted arbitrarily in issuing the order dated 04.10.2021 and accordingly, the same is quashed and set aside. The petitioner No.1 is held entitled for grant of status as ward of insured person for the purpose of admission in ESIC quota. The respondent-Corporation would issue the necessary certificate to the petitioner No.1 within the shortest possible time and preferably within 5 (five) days from the date of this order".
In the present case, the petitioner, son of a person insured under ESI Act, was denied the benefit of 'ward of insured person quota' (IPs) for admissions.
The ESI Corporation had issued an admission notice for admission to UG courses on 13.09.2021 and it provided that there shall be insured persons quota in favour of those candidates, whose either parent is insured person as on 31.03.2021.
The petitioner was denied this benefit, stating that his father was not an insured person on 31.03.2021.
On the perusal of Sections 2(14), 39 and 68 of Employees' State Insurance Act, 1948, the court observed that the insured person is not only the person who has paid the contribution but also includes a person whose contribution is payable and not actually paid due to any reason, like delay, on the part of employer, etc.
In this case, it noted, the petitioner's father was employed on 03.03.2021, his pay slip for the month of March 2021 showed that ESI deduction was made of Rs.148/- from his salary and the bank statement along-with pay-slip for the month of March, 2021 also showed that his father had received the salary after the deduction of the ESI Contribution.
In this background, the Court reminded that it is the duty of the principal employer to pay the contribution under the Act on the date when it becomes due and if he fails to do so, the Corporation has power to recover the same from the principal employer even by charging interest.
It added that if there is a neglect on the part of an employer, as per provision contained in Section 68, the person cannot be declined the benefits or his entitlement if the employer has failed to deposit the contribution.
The court rejected the arguments of the respondents that since the contribution was not deposited by the employer with the ESI Corporation and as such, the petitioner will not be entitled for issuing certificate of Ward of Insured Persons.
The court responded that the non-deposit of contribution in spite of deduction will not make the person disentitle for the benefit of ward of insured person if the insured person had paid the contribution to his employer prior to 31.03.2021.
The court observed that merely receiving the contribution, subsequently after 31.03.2021, by the ESI Corporation and some information being furnished about employment date of the insured person, showing it to be contrary to the record of the contribution, will not deprive insured person benefits under the Act.
The single bench relied on the case of Bharagath Engineering Vs. R. Ranganayaki and Ors, wherein the Apex Court has held that the employer cannot be heard to contend that since he had not deducted the employee's contribution on the wages of the employee, he will not be liable. The Apex Court further held that Section 38 of the Act, casts a statutory obligation on the employer to insure its employees and the date of commencement has to be from the date of appointment of the concerned employee.
The court further relied on Hari R. Nair & Anr. v. The Director General & Ors., has also considered the similar issue and has found that the Corporation cannot deny the otherwise eligible insured person the certificate on which the premise employer contributed or filed the returns late.
Mr. Pushpendra Pal Singh Tanwar, Adv. on behalf of Mr. Shobhit Tiwari, Adv. appeared for the petitioners, whereas Mr. Divyesh Maheshwari, Adv. Mr. Angad Mirdha, Adv. Dr. Arjun Singh Khangarot, Adv. Dr. Vibhuti Bhushan Sharma, AAG with Mr. Harshal Tholia, Adv. appeared for the respondents.
Case Title: Kunal Sharma and Anr. v. Union of India and Ors. |
1. This petition has been filed under Sections 397/401 Cr.P.C.
challenging Order dated 09.11.2021 in case bearing M.T. 1358/2018
wherein the Ld. Judge, Family Courts, North-East, Karkardooma, Delhi,
directed the Petitioner/Husband to pay an interim maintenance of Rs.
20,000/- per month to the Respondent/Wife with effect from the date of
filing the petition, i.e. 17.12.2018.
2. The facts, in brief, leading up to the filing of the petition are as
a) It is stated that the parties were married on 10.07.1989 and two
sons were born to them. Matrimonial disputes arose between the
parties in 2013 and it has been alleged that the Respondent/Wife
treated the Petitioner/Husband with cruelty. Thereafter, the
CRL.REV.P. 126/2022 Page 1 of 9
Petitioner/Husband and the Respondent/Wife started residing
separately with the Petitioner living with his elder son and the
Respondent living with the younger son.
b) In December 2015, the Respondent/Wife allegedly forcibly
entered the property of the Petitioner/Husband and started living
in a portion of the house. In 2018, vide Settlement dated
16.08.2018 (notarized on 21.08.2018), the Petitioner/Husband
agreed to pay the Respondent/Wife a sum of Rs. 5,000/- per
month.
c) On 17.12.2018, the Respondent/Wife filed a petition under
Section 125 Cr.P.C., along with an application for interim
maintenance, wherein she alleged that she had been treated with
cruelty and that the Petitioner/Husband was earning Rs.
3,00,000/- per month. This was contested by the
Petitioner/Husband who stated that the Respondent/Wife was
earning Rs. 40,000/- per month and that he himself was an auto
driver.
d) Vide Mediation Settlement on 13.01.2020, it was agreed that the
Petitioner/Husband would continue giving an amount of Rs.
5,000/- to the Respondent/Wife. However, vide impugned Order
dated 09.11.2021, the Ld. Family Court directed the
Petitioner/Husband to pay a sum of Rs. 20,000/- to the
Respondent/Wife per month as an interim maintenance.
e) Aggrieved by the same, the Petitioner/Husband has now
approached this Court challenging the same by way of the
instant revision petition.
3. Mr. Rajinder Mathur, learned Counsel appearing for the
Petitioner/Husband, submits that a settlement dated 16.08.2018 between the
Petitioner and the Respondent had already been arrived at wherein the
Petitioner had agreed to pay a sum of Rs. 5,000 per month towards the
maintenance of the Respondent. He states that the petition filed by the
Respondent/Wife under Section 125 Cr.P.C. is replete with falsities as she
alleges that the Petitioner/Husband is earning more than Rs. 3 lakhs in her
main petition, but states that he is earning Rs. 50,000/- in her interim
maintenance application.
4. Mr. Mathur submits that in reality, the Respondent/Wife is a money
lender and is earning about Rs. 40,000/-, and that the Petitioner/Husband is
merely an auto driver earning about Rs. 12,000/- per month and not a
businessman as has been alleged by the Respondent/Wife. He states that the
impugned Order dated 09.11.2021 is erroneous and is liable to set aside on
the ground that it states that no payments have been made till date which is
contrary to the fact that the Petitioner herein has been paying Rs. 5,000/- per
month to the Respondent in compliance of the settlement deed dated
16.08.2018. He further states that the Ld. Family Court also erred in not
considering the Mediation Settlement dated 13.01.2020 wherein the
Respondent/Wife had agreed to accept a payment of Rs. 5,000/- per month.
5. The learned Counsel appearing for the Petitioner/Husband, therefore,
states that the Ld. Family Court has erred in not taking into account either
the payments that were being made regularly by the Petitioner/Husband to
the Respondent/Wife in compliance of both the settlements between the
parties. He further submits that the impugned Order dated 09.11.2021 should
be set aside on account of the fact that the Petitioner/Husband is an auto
CRL.REV.P. 126/2022 Page 3 of 9
driver earning only Rs. 12,000/- per month and, therefore, cannot pay the
monthly maintenance of Rs. 20,000/- as has been directed vide Order dated
6. Heard Mr. Rajinder Mathur, learned Counsel appearing for the
Petitioner, and perused the material on record.
7. Section 125 Cr.P.C. is a provision that has been enacted to ensure that
women and children are provided maintenance by the husband so as to
protect them from a life of potential vagrancy and destitution. The Supreme
Court has consistently upheld that the conceptualisation of Section 125 was
meant to ameliorate the financial suffering of a woman who had left her
matrimonial home; it is a means to secure the woman’s sustenance, along
with that of the children, if any. The statutory provision entails that if the
husband has sufficient means, he is obligated to maintain his wife and
children, and not shirk away from his moral and familial responsibilities.
8. The Supreme Court examined the underlying purpose as well as the
social context of Section 125 Cr.P.C. in Bhuwan Mohan Singh v. Meena &
Ors., (2015) 6 SCC 353. The relevant paragraph reads as under:
"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
CRL.REV.P. 126/2022 Page 4 of 9
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."
9. Therefore, while adjudicating upon a matter of maintenance, it is
important for the Courts to bear in mind that the same was enumerated to
further the cause of social justice and that the interpretation of this Section
should be done in a manner to prevent a situation wherein the wife or
children are inadvertently nudged into vagrancy and destitution. It is meant
to provide a speedy remedy for the supply of food, clothing and shelter to
the deserted wife.
10. Furthermore, the scope of interference in a revision petition under
Sections 397/401 Cr.P.C. read with Section 482 Cr.P.C. is narrow and can
only be done if a situation arises wherein the impugned Order is replete with
legal infirmities and is unconscionable to the rule of law. The Supreme
Court in Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460, has observed
CRL.REV.P. 126/2022 Page 5 of 9
"12. Section 397 of the Code vests the court with the
power to call for and examine the records of an
inferior court for the purposes of satisfying itself as to
the legality and regularity of any proceedings or order
made in a case. The object of this provision is to set
right a patent defect or an error of jurisdiction or law.
There has to be a well-founded error and it may not be
appropriate for the court to scrutinise the orders,
which upon the face of it bears a token of careful
consideration and appear to be in accordance with
law. If one looks into the various judgments of this
Court, it emerges that the revisional jurisdiction can
be invoked where the decisions under challenge are
grossly erroneous, there is no compliance with the
provisions of law, the finding recorded is based on no
evidence, material evidence is ignored or judicial
discretion is exercised arbitrarily or perversely. These
are not exhaustive classes, but are merely indicative.
Each case would have to be determined on its own
merits.
13. Another well-accepted norm is that the revisional
jurisdiction of the higher court is a very limited one
and cannot be exercised in a routine manner. One of
the inbuilt restrictions is that it should not be against
an interim or interlocutory order. The Court has to
keep in mind that the exercise of revisional
jurisdiction itself should not lead to injustice ex facie.
Where the Court is dealing with the question as to
whether the charge has been framed properly and in
accordance with law in a given case, it may be
reluctant to interfere in exercise of its revisional
jurisdiction unless the case substantially falls within
the categories aforestated. Even framing of charge is a
much advanced stage in the proceedings under the
CRL.REV.P. 126/2022 Page 6 of 9
20. The jurisdiction of the court under Section 397 can
be exercised so as to examine the correctness, legality
or propriety of an order passed by the trial court or the
inferior court, as the case may be. Though the section
does not specifically use the expression “prevent abuse
of process of any court or otherwise to secure the ends
of justice”, the jurisdiction under Section 397 is a very
limited one. The legality, propriety or correctness of an
order passed by a court is the very foundation of
exercise of jurisdiction under Section 397 but
ultimately it also requires justice to be done. The
jurisdiction could be exercised where there is palpable
error, non-compliance with the provisions of law, the
decision is completely erroneous or where the judicial
discretion is exercised arbitrarily. On the other hand,
Section 482 is based upon the maxim quando lex
aliquid alicui concedit, concedere videtur id sine quo
res ipsa esse non potest i.e. when the law gives
anything to anyone, it also gives all those things
without which the thing itself would be unavoidable.
The section confers very wide power on the Court to do
justice and to ensure that the process of the court is not
permitted to be abused." (emphasis supplied)
11. Similarly, in Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao
Phalke, (2015) 3 SCC 123, the Supreme Court observed as under:
"14. In the case before us, the learned Magistrate went
through the entire records of the case, not limiting to
the report filed by the police and has passed a
reasoned order holding that it is not a fit case to take
cognizance for the purpose of issuing process to the
appellant. Unless the order passed by the Magistrate is
perverse or the view taken by the court is wholly
unreasonable or there is non-consideration of any
relevant material or there is palpable misreading of
CRL.REV.P. 126/2022 Page 7 of 9
records, the Revisional Court is not justified in setting
aside the order, merely because another view is
possible. The Revisional Court is not meant to act as
an appellate court. The whole purpose of the revisional
jurisdiction is to preserve the power in the court to do
justice in accordance with the principles of criminal
jurisprudence. The revisional power of the court under
Sections 397 to 401 CrPC is not to be equated with
that of an appeal. Unless the finding of the court,
whose decision is sought to be revised, is shown to be
perverse or untenable in law or is grossly erroneous or
glaringly unreasonable or where the decision is based
on no material or where the material facts are wholly
ignored or where the judicial discretion is exercised
arbitrarily or capriciously, the courts may not interfere
with decision in exercise of their revisional
jurisdiction."
12. It is pertinent to note at this juncture that the maintenance which has
been awarded vide the impugned Order dated 09.11.2021 is in the form of
interim maintenance. Judicial discipline, therefore, circumspects this Court
from interfering in an Order rendered by the Courts below and only justifies
interference if the Order is egregious in nature and suffers from legal
perversity. It is well settled that unless the said Orders are perverse and have
been passed on nil evidence, the High Court must be slow in interfering in
the decisions of the Courts below.
13. A perusal of the impugned Order dated 09.11.2021 indicates that the
Ld. Family Court has astutely considered the affidavits of income, assets and
liabilities as well as other documents filed by both the parties before arriving
at the decision to direct the Petitioner/Husband to pay a sum of Rs. 20,000/-
per month as interim maintenance. The Ld. Family Court has taken
cognizance of the said settlement deed and noted that no material was placed
CRL.REV.P. 126/2022 Page 8 of 9
on record to substantiate the submission of the Petitioner/Husband that a
regular interim maintenance of Rs. 5,000/- was being paid to the
Respondent/Wife. Furthermore, the Ld. Family Court has also gone through
the Petitioner/Husband’s bank statements and copy of Income Tax Returns
as on 31.03.2020, and has found that the Petitioner/Husband earned Rs.
5,17,395/- in the financial year 2019-2020.
14. Moreover, it was also found by the Ld. Family Court that in the
assessment year 2020-2021, the Petitioner/Husband had sales of Rs.
85,93,417/- and also had a miscellaneous income of Rs. 48,910/-.
Accordingly, the Ld. Family Court came to the conclusion that the
Petitioner/Husband had a monthly income of Rs. 60,000/- and, therefore, had
the wherewithal to pay maintenance to the Respondent/Wife. In consequence
of the same, it was directed that the Respondent/Wife was entitled to an
interim maintenance of Rs. 20,000/- per month from the date of filing of the
petition, i.e. 17.12.2018.
15. In view of the above, this Court is of the opinion that the impugned
Order dated 09.11.2021 passed by the Ld. Family Court is well-reasoned and
does not betray any legal infirmity. This Court, therefore, does not find any
reason that would warrant interference in the Order passed by the Ld. Family
16. Accordingly, the petition is dismissed, along with the pending
application(s), if any. | The Delhi High Court has observed that Section 125 of Code of Criminal Procedure entails that if the husband has sufficient means, he is obligated to maintain his wife and children, and not shirk away from his moral and familial responsibilities.Justice Subramonium Prasad also said that the provision was enacted to ensure that women and children are provided maintenance by the husband so as...
The Delhi High Court has observed that Section 125 of Code of Criminal Procedure entails that if the husband has sufficient means, he is obligated to maintain his wife and children, and not shirk away from his moral and familial responsibilities.
Justice Subramonium Prasad also said that the provision was enacted to ensure that women and children are provided maintenance by the husband so as to protect them from a life of potential vagrancy and destitution.
"The Supreme Court has consistently upheld that the conceptualisation of Section 125 was meant to ameliorate the financial suffering of a woman who had left her matrimonial home; it is a means to secure the woman's sustenance, along with that of the children, if any. The statutory provision entails that if the husband has sufficient means, he is obligated to maintain his wife and children, and not shirk away from his moral and familial responsibilities," the Court observed.
The Court was of the view that while adjudicating upon a matter of maintenance, it is important for the Courts to bear in mind that the same was enumerated to further the cause of social justice and that the interpretation of the provision should be done in a manner to prevent a situation wherein the wife or children are inadvertently nudged into vagrancy and destitution.
"It is meant to provide a speedy remedy for the supply of food, clothing and shelter to the deserted wife," the Court added.
The Court was dealing with a plea challenging the Order dated 09.11.2021 passed by the Family Court wherein the petitioner husband was directed to pay an interim maintenance of Rs. 20,000 per month to the Respondent Wife with effect from the date of filing the petition.
The parties were married on 10.07.1989 and two sons were born to them. Matrimonial disputes arose between the parties in 2013 and it was alleged that the Respondent Wife treated the Petitioner Husband with cruelty. Thereafter, the Husband and the Wife started residing separately with the husband living with his elder son and the wife living with the younger son.
In December 2015, the Respondent Wife allegedly forcibly entered the property of the Petitioner Husband and started living in a portion of the house. In 2018, vide Settlement dated 16.08.2018, the Petitioner Husband agreed to pay the Respondent Wife a sum of Rs. 5,000 per month.
On 17.12.2018, the Respondent Wife filed a petition under sec. 125 Cr.P.C., along with an application for interim maintenance, wherein she had alleged that she was treated with cruelty and that the Petitioner Husband was earning Rs. 3,00,000 per month. This was contested by the Petitioner Husband who stated that the Respondent Wife was earning Rs. 40,000 per month and that he himself was an auto driver.
Vide Mediation Settlement on 13.01.2020, it was agreed that the Petitioner Husband would continue giving an amount of Rs. 5,000 to the Respondent Wife. However, vide impugned Order, the Family Court directed the Petitioner Husband to pay a sum of Rs. 20,000 to the Respondent Wife per month as an interim maintenance.
Aggrieved by the same, the Petitioner Husband approached the High Court challenging the same by way of the revision petition.
The Court observed that the scope of interference in a revision petition under sec. 397 and 401 Cr.P.C. read with sec. 482 Cr.P.C. is narrow and can only be done if a situation arises wherein the impugned Order is replete with legal infirmities and is unconscionable to the rule of law.
The Court said that a perusal of the impugned Order indicated that the Family Court had astutely considered the affidavits of income, assets and liabilities as well as other documents filed by both the parties before arriving at the decision and that it had also taken cognizance of the settlement deed and noted that no material was placed on record to substantiate the submission of the Petitioner Husband that a regular interim maintenance of Rs. 5,000 was being paid to the Respondent Wife.
"Moreover, it was also found by the Ld. Family Court that in the assessment year 2020-2021, the Petitioner/Husband had sales of Rs. 85,93,417/- and also had a miscellaneous income of Rs. 48,910/-. Accordingly, the Ld. Family Court came to the conclusion that the Petitioner/Husband had a monthly income of Rs. 60,000/- and, therefore, had the wherewithal to pay maintenance to the Respondent/Wife. In consequence of the same, it was directed that the Respondent/Wife was entitled to an interim maintenance of Rs. 20,000/- per month from the date of filing of the petition, i.e. 17.12.2018," the Court added.
Therefore, the Court concluded that the impugned Order was well-reasoned and did not betray any legal infirmity.
Accordingly, the Court dismissed the plea and upheld the impugned order of the Family Court.
Case Title: JITENDRA KUMAR GARG v. MANJU GARG |
Dated this the 31st day of January, 2022
This Original Petition is filed under Article 227 of
Constitution of India against an order passed by Family Court,
Ernakulam (for short ‘the court below’) on 25.10.2021 in
M.P.No.629/2021 in M.C.No.198/2021. The order assailed
“Taken up today. For objection. Heard. Respodent is directed
to pay Rs.6000/- as interim maintenance to the child till
disposal of MC. Wife claim will be decided in the MC”
2. It is found from the impunged order that it was
passed when M.P.No.629/2021 was posted for objection of the
respondent. A direction is found issued to the respondent in
the impugned order to pay Rs.6,000/- as interim maintenance
allowance to the child till disposal of the MC but at the
sametime the wife was denied any interim maintenance
allowance without assigning any reasons.
3. What was the reason for declining to pass an order
granting interim maintenance allowance to the wife was not
revealed from the order extracted above. Therefore, the order
is a non-speaking one. There is no hard and fact rule that all
claims of the parties must be allowed. But, the party has a
right to be informed of the reasons for denial of his/her calim or
for prolonging it’s consideration to a future date. Since such a
reason is not stated in the impugned order, it is liable to fail.
In the above circumstances, without issuing notice to the
2nd respondent, this Court is constrained to allow the Original
Petition in part and to pass an order setting aside the impugned
order to the extent it directs adjudication of the wife’s claim for
interim maintenance allowance in the M.C. The direction to pay
Rs.6,000/- as interim maintenance allowance to the child is not
interfered with. The court below shall consider M.P.No.629/2021
with reference to the claim of the wife for interim maintenance
allowance and shall pass appropriate orders (either declining or
allowing the claim) stating sufficient and satisfactory reasons
for doing so. The consideration of the claim of the wife and
passing of orders shall not go beyond three weeks from this | The Kerala High Court on Monday observed that a party to litigation is entitled to be informed of the reasons behind the denial of their claims. Thus, setting aside a non-speaking order passed by the Family Court, Justice Mary Joseph observed that although there is no rule that all reliefs sought for should be allowed but, a party is qualified to know why their relief was... The Kerala High Court on Monday observed that a party to litigation is entitled to be informed of the reasons behind the denial of their claims. Thus, setting aside a non-speaking order passed by the Family Court, Justice Mary Joseph observed that although there is no rule that all reliefs sought for should be allowed but, a party is qualified to know why their relief was denied. "There is no hard and fast rule that all claims of the parties must be allowed. But, the party has a right to be informed of the reasons for denial of his/her claim or for prolonging its consideration to a future date. Since such a reason is not stated in the impugned order, it is liable to fail." The impugned order directed the respondent-husband to pay Rs.6,000/- as interim maintenance allowance to the child till disposal of the plea. However, the wife was denied any interim maintenance allowance without assigning any reasons. Aggrieved by this, the petitioner (wife) approached the High Court through Advocates S. Sunil Kumar and B.S. Suraj Krishna. The respondents were represented by Advocate Aravind V. Mathew. The Court noted that the reason for declining to grant interim maintenance allowance to the wife was not revealed from the impugned order and that for this reason, it was a non-speaking order. Accordingly, the Judge deemed it fit to allow the plea in part, without even serving notice to the 2nd respondent (husband). Thereby, the impugned order was set aside to the extent that it directed adjudication of the wife's claim for interim maintenance allowance in the M.C. The direction to pay Rs.6,000/- as interim maintenance allowance to the child was not interfered with. |
This public interest litigation has been filed seeking
intervention of this Court in the matter of transfer of some
Elephants from State of Karnataka to respondent No.3
Trust which was reported in the media. A direction has
been sought to the State Government to issue guidelines
directing that no person can sell or transfer or translocate
Elephants from the State of Karnataka to the respondent
No.3 Trust. A direction has been sought to respondent
No.3 Trust to send back the 4 Elephants that were
transported to the said Trust and also send back all the
Elephants which have been taken by the Trust, back to the
respective Forest Department of the States from which
these Elephants were obtained.
2. Notice for respondent No.1 has been accepted
by learned Additional Government Advocate, whereas
Dr. Sujay N. Kantawala has put in appearance on behalf of
respondent No.3. With the consent of learned counsel for
the parties, we propose to dispose of the writ petition at the
admission stage without calling for counter affidavit /
statement of objections.
3. The case of the petitioner in brief is that the
Elephants cannot be entrusted with private individuals or
organizations and must be reclaimed by the State
Government. His case is that by allowing organizations like
the respondent No.3 to give refuge to Elephants, the State
Governments or the Central Government is abdicating its
responsibility. A perusal of documents annexed to the writ
petition indicates that 4 Elephants were rescued from a
Circus couple of decades ago. The Court, acting on a
petition filed by animal rights activists, had directed the
Forest Department to take over the Elephants. After the
Court order, the Mysore Royal Family volunteered to take
care of the Elephants and they were accordingly sent to the
Mysore Palace. The Elephants were a tourist attraction at
the Palace and were used for Elephant Safaris. The Forest
officials has informed that in 2017, the Royal Family wrote
to the Forest Department that the handlers were not taking
proper care of the animals. However, the animals were not
shifted due to administrative issues. These 4 Elephants
have been given to respondent No.3 Trust by way of Gift
Deeds for their better care. The permission was given by
the Forest Department for transportation / translocation of
these animals.
4. Learned counsel for the petitioner has
contended that respondent No.1 should not allow the
transfer of Elephants from Karnataka. The forest
authorities had wrongly granted permit in favour of
respondent No.3 to transfer the Elephants from Karnataka
to Jamnagar, Gujarat. It is also contended that the
preference is being given to respondent No.3 in getting the
wild animals on extraneous considerations. It is submitted
that the animals which are transferred or translocated shall
be sterilized. The counsel for the petitioner has argued that
there is a strong apprehension that these animals would be
put to commercial use and the respondent No.3 may
misuse these animals by opening a breeding centre.
5. The respondent No.3 has vehemently opposed
the petition. We have perused the counter affidavit. The
preliminary objections regarding maintainability of the writ
petition has been raised, which are as under:
i. The instant writ petition is not maintainable either in
law or on facts and hence the petition to be dismissed at
the outset.
ii. The Respondent No.3 is a separate, distinct and
independent organization in the form of a Public Trust and
has no legal association with Reliance Industries Limited as
is confused in many news reports attached with the
iii. The Petitioner has suppressed material facts and
made false statements in this writ petition and averments
contained in the instant writ are clearly aimed at misleading
this Hon'ble Court and therefore the Petitioner is not
entitled to any relief ads claimed in this writ petition.
iv. It is submitted that instant writ petition is clearly an
abuse of process of this Hon'ble Court and hence the Writ
Petition is to be dismissed at the very outset.
6. Learned counsel for respondent No.3 submits
that the Respondent No.3 began as an informal associated
of like-minded persons who have immense passion and a
deep sense of attachment to the well-being of Elephants
and large mammals, especially those who were and are
victims of circumstances (injured in train accidents, fell in
water tunnels etc.) from the wild and victims of abuse in
captivity (circus, street begging etc). Though there is no
specific date from which its activities of helping Elephants
began, the first few efforts taken for the welfare of
Elephants began from 2013-2014. The Respondent No.3
began to provide shelter to rescued, diseased, old aged
Elephants from around 2014.
7. The Respondent No.3 Trust was formally
registered as a Public Charitable Trust under the Gujarat
Public Trust Act, 1950 on 30th September 2019. The objects
for which the Trust is formed is to promote welfare of
animals and to establish buildings, maintain shelters and
provide state of the art facilities for animals who are
rescued, hurt, ill, of advanced age, victims of human -
animal conflict, victims of human abuse or compulsions or
are abandoned.
8. The Respondent No.3 both before and after its
incorporation has been tirelessly working for the cause of
Elephants. The Respondent No.3 has established a very
large facility in the green belts alongside Jamnagar Refinery
along with use of over 50 acres of land for large shelters,
ponds, grazing areas, playing areas, eating areas, hospital
and care Camps, for Elephants. The Respondent No.3 also
received a formal permission from the Principal Chief
Conservator of Forest (Wildlife) and Chief Wildlife Warden,
Gujarat on 9th July 2020 for the Elephant Care Camp at
9. Since the beginning and until now, the
Respondent No.3 has:
a. Created state of the art shelters and enclosures
for Elephants up to the capacity of 300 with potential
to increase the intake capacity depending on the fact
if the Respondent No.3 is called upon to rehabilitate
and/or rescue more Elephants.
b. Received up to 153 sick, abandoned and
victimized Elephants from past owners, possessors,
mahouts, handlers, circuses or rescued or from State
Government and other agencies.
c. Employed 237 Mahouts, 8 veterinarians, 8
para-veterinarians and further 22 care takes and
trained staff members for the round the clock care
and attention of the Elephants.
d. Established a supply chain of diet appropriate
foods and medicines for the Elephants.
e. Established a State of the Art Elephant Hospital
equipped with a first of a kind restraining device for
treatment of Elephants, endoscopy machine, surgery
facility, hydraulic crane and cataract surgery facilities.
f. Established an exercise and rejuvenation
regime for all the Elephants by using technology and
created a software that ensures Elephants have
adequate exercise.
g. Established walking and grazing tracks for the
h. Established ponds and hydrotherapy water
bodies for the Elephants.
j. Employed mahouts of a large number of
Elephants who were working as mahouts prior to the
Elephant's rescue so as to rehabilitate mahouts as
well.
10. Respondent No.3 has taken all steps without
any compromises to ensure the wellbeing of each and every
Elephant which has been sent to its Camp. It is a matter of
satisfaction that all of the said 153 Elephants as on date
have been treated and kept in the most appropriate and
conducive conditions which is evident from the fact that
large number of Elephants have integrated and formed
themselves into herds and are enjoying a peaceful retired
11. The Respondent No.3 facilities are open to all
Elephants. The Respondent No.3 is a no-profit organization.
The Respondent No.3 does not intend to convert the Camp
into any sort of zoo or carry out any commercial activity
12. It is contended that there is no prohibition or
restriction on the respondent No.3 carrying out the non-
profit activity of taking care of the rescued Elephants. It is
also contended that the respondent No.3 is not involved in
any commercial activity with these animals and they have
been kept only for rehabilitation and proper care. It is also
contended that respondent No.3 is not having any breeding
centres for these animals. The respondent No.3 is only
concerned with the care and rehabilitation of Elephants and
other animals. The Elephants who form themselves into
herds in a natural course of their nature and behavior may
intend to breed. However, the respondent No.3 does not
use any artificial means of breeding of the animals.
13. The counsel for respondent No.3 vehemently
submits that the writ petition has been filed with ulterior
motive and malafide intentions to malign the respondent
No.3 which is involved in pious work of animal care due to
animal love and affection and its Trustees.
14. We have considered the submissions made by
the learned counsel for the petitioner as well as learned
counsel for respondent Nos.1 and 3.
15. We have also perused the Wild Life (Protection)
Maximus stands at Sr. No.12B of Schedule I of the said Act.
Section 40 of the said Act deals with Declarations to be
made by persons in possession of animals or animal article.
The portion of Section 40 relevant to us reads as under:
“(2) No person shall, after the commencement
of this Act, acquire, receive, keep in his
control, custody or possession, sell, offer for
sale or 420 otherwise transfer or transport any
animal specified in Schedule I or Part ll of
Schedule II or any uncured trophy or meat
derived from such animal, or the salted or
dried skins of such animal or the musk of a
musk deer or the horn of a rhinoceros, except
with the previous permission in writing of the
Chief Wild Life Warden or the authorised
officer.
[(2A) No person other than a person having a
certificate of ownership, shall, after the
commencement of the Wild Life (Protection)
Amendment Act, 2002 (16 of 2003) acquire,
receive, keep in his control, custody or
possession any captive animal, animal article,
trophy or uncured trophy specified in Schedule
I or Part Il of Schedule II, except by way of
inheritance.]
[(2B) Every person inheriting any captive
animal, animal article, trophy or uncured
trophy under sub-section (2A) shall, within
ninety days of such inheritance make a
declaration to the Chief Wild Life Warden or
the authorised officer and the provisions of
sections 41 and 42 shall apply as if the
declaration had been made under sub-section
(1) of section 40:
Provided that nothing in sub-sections (2A) and
(2B) shall apply to the live elephant.]”
16. Thus while no person other than one having a
certificate of ownership can acquire, receive or keep any
animal from Schedule I in his possession as per Section
40(2A), the proviso in the Section carves out exception in
case of live Elephants. This permits private individuals to
have ownership over live Elephants. Next Section 43 states
that no person having in his possession any captive animal
shall transfer the animal by way of sale or transaction of a
commercial nature.
17. The case of the Petitioner that the 1st
Respondent should not have allowed transfer of the 4
Elephants from Karnataka is based on an article from a
news paper website. The article when read itself shows that
the four female Elephants mentioned therein belonged to a
private family. We find from the article itself that the
private family had first acquired the Elephant in pursuance
of their offer to take care of them as they were then circus
Elephants. Since the handlers were unable to look after
them they were sought to be returned. The Respondent
No.3 appears to have given them refuge. We do not find
any transaction of a commercial nature in this. Even
otherwise it is not the case of the Petitioner that the
transaction was of a commercial nature.
18. In such cases where the Elephants are or were
private owned, the question of involvement of Forest
Authorities in minimal and limited only to the extent of
granting a transfer permit in accordance with Rule 125-e of
the Central Motor Vehicle Rules. We therefore find nothing
wrong with the relocation of the Elephants to the
Respondent No.3. We also do not see anything wrong in
other instances of transfers private Elephants which are
loosely stated in the Petition. In fact the only aspect
relevant for relocation of an Elephant which is privately
owned is the consent of the person in whose possession the
Elephant is, such consent having been given without any
element of commercial transaction. Once such consent is
given it is incumbent on authorities to grant transfer
permits in accordance with law.
19. The Petitioner's case about preference being
given to Respondent No.3 Trust and its capability required
attention. We have gone through the Counter and the
presentation submitted across the Bar. We have also
perused photographs of the Elephants themselves and the
facilities of the Respondent No.3 Trust. We are satisfied
that the Respondent No.3 is a bonafide Trust which is
carrying out a laudable object. To satisfy our conscience,
we intend to bind the Respondent No.3 to its statements
made in the Counter and also across the Bar and give
directions in this regard at the end of our judgment.
20. The Petitioner has alleged preference being
given to the Respondent No.3 Trust. We find that the said
allegation is without any data or basis. In so far private
Elephants are concerned, we have already expressed our
view as above. In so far as Elephants which are possession
of the Central or State Government is concerned, we find
that there is no bar in the forest or wildlife authorities of
the Central or State Governments in relocating Elephants as
per their choice. This is for the reason that the bar of
Section 43 of the said Act applies only to private persons.
Also, the decision to relocate Elephants would be purely a
policy decision affecting no rights of any party. We are
fortified in holding so by a judgment of this Court in Writ
Petition No.18442-443 of 2012 decided on 13th March 2013
in which it was held as under:
“4. During the course of submission, the
petitioner's counsel has placed reliance on
Section 43 of the Wild Life (Protection) Act,
1972 which deals with regulation and transfer
of animals. We have perused the said section.
It states that no captive animal in respect of
which a person has certificate of ownership can
transfer by way of sale or offer for sole or by
any other mode of consideration of commercial
nature. Sub-section (2) of the said provision
also states that where a person transfers or
transports from the State in which he resides
to another State or acquires by transfer from
outside the State, any such animal in respect
of which he has a certificate of ownership, then
he must intimate to the Chief Wild Life Warden
or the authorized officer within whose
jurisdiction the transfer or transport is
effected. The said section, in our view, deals
with the transfer of captive animal by the
owner or a private person. Section 2(24) of the
above Act defines a ‘person' to include a 'firm'.
The expression 'person' cannot encompass
within its meaning a ‘State Government.'
5. In the instant case, the State Government in
its wisdom has taken a policy decision for the
translocation of the Elephants having regard to
the expenditure to be incurred in maintaining
the said Elephants and other considerations.
These are matters within the realm of the
State Government. This Court, in exercise of
its jurisdiction under Article 226 of the
Constitution cannot sit in judgment over the
decision of the State Government to
translocate the Elephants concerned.”
21. The Petitioner's case that restrictions must be
brought in to prevent sterilization of Elephants is a
contention that only requires to be stated to be rejected.
The Hon’ble Apex Court in Shanti Prasad Nayak vs. Union of
India1 in which the following observations were made:
“18. At this juncture, we are obliged to take
note of the submission made by Mr. Tapesh
Kumar Singh, learned counsel appearing for
State of Jharkhand that State of West Bengal
has decided to take a regressive step by
introducing contraceptives so that the
Elephants do not procreate and consequently
the accidents of the present nature are
avoided. If it is so, it is absolutely
impermissible and also condemnable. Mr. Avijit
Bhattacharjee, learned counsel appearing for
the State of West Bengal shall take instructions
in this regard and file an affidavit of the
competent authority. However, as advised at
present, we restrain the authorities of the
State of West Bengal from taking any steps to
administer any kind of contraceptives or
introducing any method of sterilization which
hinders natural procreative process of the
Elephants or any wildlife.”
22. In view of the above words of the Hon’ble Apex
Court, we find that the last request of the Petitioner is
condemnable to say the least. In this regard, we record the
submission of the Respondent No.3 Trust that it does not
promote breeding and it does not intend to be a breeding
centre. However we intend to bind the Respondent No.3
with the added responsibility that in cases where Elephants
at their facility by natural procreative process produce any
calves, the Respondent No.3 shall report the same to the
local authorities within 48 hours and the Respondent No.3
shall give an undertaking to the local authorities that they
shall provide for and take care of the said calves.
23. The Petitioner's case regarding execution of gift
deeds without ascertaining source etc. is a frivolous
argument with no material facts pleaded. The Respondent
No.3 is a public trust of which according to us the Elephants
are beneficiaries. The relationship between them is of
trustee and beneficiary.
24. In view of what we have held above, we do not
see the need of formal documentation for a privately owned
Elephant, especially which is in need of rescue or adoption.
In fact the law does not require any documentation.
According to us, any document with any nomenclature is
sufficient as long as it shows consent and absence of
commercial transaction.
25. We see no reason whatsoever as to why the
153 Elephants, which we would like to refer as adoptee
Elephants, in custody and care of Respondent No.3 should
be disturbed by anyone especially since they are getting
good care, good facilities and seem integrated and well
26. As stated by us above, in order to satisfy our
conscience, we wish to give following directions to the
Respondent No.3. The Learned Counsel for Respondent
No.3 has agreed and undertaken on behalf of Respondent
No.3 to abide by these directions:
(i) The Elephants that are in the custody and care
of the Respondent No.3 Trust, shall till the end of
their respective lives, be continued to be given the
same care and facilities as specified in the Counter
filed in these proceedings.
(ii) In case any more Elephants are relocated to the
Respondent No.3’s facility by private individuals,
organizations, Central or any State Governments or
their departments and agencies, the same care and
facilities as specified in the Counter filed in these
proceedings shall be provided to them for the rest of
their respective lives.
(iii) The Respondent No.3 shall not enter into any
commercial transaction referred to in Section 43 of
the Wild Life (Protection) Act, 1972.
(iv) The Respondent No.3 shall before receiving any
further Elephants, ensure that the same infrastructure
as present is available and sufficient for the new
adoptee Elephants.
(v) The Respondent No.3 shall not use its facilities
for any commercial purpose.
(vi) The Respondent No.3 shall not promote
breeding by use of any scientific methods. However
only if as a result of natural procreative process any
calves are born, the Respondent No.3 shall report the
same, to the local forest authorities in whose
jurisdiction they are situate, within 48 hours and the
Respondent No.3 shall give an undertaking to the
local forest authorities that the Respondent No.3 shall
provide for and take care of the said calves.
(vii) The Respondent No.3 shall submit an annual
report of its activities and facilities for the Elephants
under its care to the local forest authorities in whose
jurisdiction they are situated.
27. With the aforesaid directions, we hereby
dispose of the writ petition. | The Karnataka High Court has held that Section 40 of the Wild Life (Protection) Act, 1972 permits private ownership of live elephants and there is no bar in giving them up in adoption, so long as the transaction is of non-commercial nature.
The observation was made while dismissing a PIL against adoption of four elephants by Gujarat based Radha Krishna Temple Elephant Welfare Trust (Respondent no. 3), from State of Karnataka. A division bench of Chief Justice Ritu Raj Awasthi and Justice Ashok S Kinagi held,
"The Respondent No.3 is a public trust of which according to us the Elephants are beneficiaries. The relationship between them is of trustee and beneficiary. In view of what we have held above, we do not see the need of formal documentation for a privately owned Elephant, especially which is in need of rescue or adoption."
It added, "We are satisfied that the Respondent No.3 is a bonafide Trust which is carrying out a laudable object...We do not see the need for a formal documentation for a privately owned Elephant, especially one which is in need of rescue or adoption. In fact, the law does not require any documentation. According to us, any document with any nomenclature is sufficient as long as it shows consent and absence of commercial transaction."
It further said, "We see no reason whatsoever as to why the 153 Elephants, which we would like to refer as adoptee Elephants, in custody and care of Respondent No.3 should be disturbed by anyone especially since they are getting good care, good facilities and seem integrated and well adjusted."
Case details:
The petitioner, citing news reports, had questioned the transfer of elephants. A direction was sought to the State Government to issue guidelines directing that no person can sell or transfer or translocate Elephants from the State of Karnataka to the trust.
Advocate Ramesh T, argued that elephants cannot be entrusted with private individuals or organisations and must be reclaimed by the State Government, which has the duty to maintain them.
Advocate Dr Sujay N Kantawala appearing for the trust submitted that the objects for which the Trust is formed is to promote welfare of animals, and that it has received a formal permission from the Principal Chief Conservator of Forest (Wildlife) and Chief Wildlife Warden, Gujarat on 9th July 2020 for the Elephant Care Camp at Jamnagar.
Findings:
The bench referring to Wild Life (Protection) Act, 1972, the Indian Elephant – Elephas Maximus stands at Sr. No.12B of Schedule I of the said Act, said, "While no person other than one having a certificate of ownership can acquire, receive or keep any animal from Schedule I in his possession as per Section 40(2A), the proviso in the Section carves out an exception in case of live Elephants. This permits private individuals to have ownership over live Elephants. Next Section 43 states that no person having in his possession any captive animal shall transfer the animal by way of sale or transaction of a commercial nature."
It added,
"In such cases where the Elephants are or were privately owned, the question of involvement of Forest Authorities is minimal and limited only to the extent of granting a transfer permit in accordance with Rule 125-e of the Central Motor Vehicle Rules. We therefore find nothing wrong with the relocation of the Elephants to Respondent No.3."
Further the bench observed,
"We also do not see anything wrong in other instances of transfers of private Elephants which are loosely stated in the Petition. In fact the only aspect relevant for relocation of an Elephant which is privately owned is the consent of the person in whose possession the Elephant is, such consent having been given without any element of commercial transaction. Once such consent is given it is incumbent on authorities to grant transfer permits in accordance with law."
The court also rejected the contention of petitioner about preference being given to Respondent No.3 Trust and its capability. It said, "We find that the said allegation is without any data or basis."
Finally the court issued following directions to the trust:
(i) The Elephants that are in the custody and care of the Respondent No.3 Trust, shall till the end of their respective lives, be continued to be given the same care and facilities as specified in the Counter filed in these proceedings.
(ii) In case any more Elephants are relocated to the Respondent No.3's facility by private individuals, organisations, Central or any State Governments or their departments and agencies, the same care and facilities as specified in the Counter filed in these proceedings shall be provided to them for the rest of their respective lives.
(iii) The Respondent No.3 shall not enter into any commercial transaction referred to in Section 43 of the Wild Life (Protection) Act, 1972.
(iv) The Respondent No.3 shall before receiving any further Elephants, ensure that the same infrastructure as present is available and sufficient for the new adoptee Elephants.
(v) The Respondent No.3 shall not use its facilities for any commercial purpose.
(vi) The Respondent No.3 shall not promote breeding by use of any scientific methods. However only if as a result of natural procreative process any calves are born, the Respondent No.3 shall report the same, to the local forest authorities in whose jurisdiction they are situate, within 48 hours and the Respondent No.3 shall give an undertaking to the local forest authorities that the Respondent No.3 shall provide for and take care of the said calves.
(vii) The Respondent No.3 shall submit an annual report of its activities and facilities for the Elephants under its care to the local forest authorities in whose jurisdiction they are situated.
Case Title: MURULY M.S. v. STATE OF KARNATAKA & others
Case No: WRIT PETITION NO.10688 OF 2022
Date of Order: 06TH DAY OF JUNE, 2022
Appearance: Advocate RAMESH T for petitioner; AGA VIJAYAKUMAR A. PATIL, FOR R-1; Advocate DR. SUJAY N. KANTAWALA, a/w Advocate N.G. DEVISREE, FOR R3 |
First petitioner minor child and second petitioner, its
mother are knocking at the doors of Writ Court grieving
against the non-issuance of the Transfer Certificate of the
child, by the 9th Respondent – School despite repeated
2. After service of notice, the respondents have
entered appearance through their advocates; official
respondents 1, 2 & 3 are represented by learned AGA; the
fourth respondent is represented by his Panel Counsel;
learned ASG represents respondents 5 to 8; respondents 9
& 10 are represented by their Panel Counsel; similarly, the
now impleaded respondent no.11 is also represented by his
own counsel.
3. Learned Panel Counsel appearing for
respondent School & 11th respondent being the father of
the first petitioner & husband of the second, oppose the
writ petition contending that without the consent of the
father TC cannot be issued; the counsel for the school
submits that unless school dues are cleared, the request
for issuance of TC cannot be considered; they also contend
that since the child now in Kolkata is attending the school
online and therefore, there is no reason for shifting it to
another school.
4. Having heard the learned counsel for the
parties and having perused the petition papers, this Court
is inclined to grant indulgence in the matter as under and
for the following reasons:
(a) The first petitioner is a minor daughter of second
petitioner and, now impleaded 11th respondent happens to
be its father; there appears to be some estrangement
between the spouses as is reflected from the record; the
Division Bench of this Court in father's W.P.(HC) No.
32/2021, has made some observations at paragraphs 10 &
11 of the judgment which show that the custody of the
child is with the second petitioner; that being the position,
the respondent Nos. 9, 10 & 11 are not justified in
opposing the request for the issuance of Transfer
Certificate of the child who is now stated to be admitted to
a school in Kolkata; because of estrangement between the
parents, child’s educational prospects should not be
affected by not issuing the TC.
(b) The contention of counsel for the 11th respondent
that to which school a child of the estranged parents
should be admitted, has to be a matter of consensus
between them and that one of the parents cannot take
such a decision unilaterally, cannot be countenanced as a
thumb rule; child is as yet a minor and it is a female;
admittedly it is in the exclusive custody of 2nd petitioner-
mother; ordinarily, law favours custody of minor daughters
being with the mothers, needs no elaboration; the child is
already admitted to a school in Kolkata; the legal battle for
its custody between the parents is stated to be still going
on. What is being decided in this case is only the matter
of Transfer Certificate and not the child custody or
visitation rights. Justice of the case warrants the issuance
of Transfer Certificate to facilitate educational career
progression of the child; in matters like this all agencies
involved should co-ordinate and facilitate the same. This
is reflected in the provisions of Sec.5 of the Right of
Children to free and compulsory Education Act, 2009.
In the above circumstances, this writ petition
succeeds; a Writ of Mandamus issues to the respondents
nos.1, 2 & 3 to cause issuance of Transfer Certificate by
the respondent nos. 9 & 10- School; a direction also issues
to the 10th respondent to hand the subject Transfer
Certificate to the second petitioner-mother within ten days,
failing which the respondents 9 & 10 each shall pay to the
second petitioner Rs.5,000/- for the delay brooked each
day, apart from running the risk of contempt of court.
The observations made hereinabove shall not
influence the claims for child custody or the visitation | The Karnataka High Court has said that estrangement between a couple should not affect their child's education prospects. Justice Krishna S Dixit thus allowed the petition filed by a mother and her 8-year old daughter, seeking directions to a school in Bengaluru to issue her Transfer certificate. The plea was opposed by the Sorsfort International School on the grounds that...
The Karnataka High Court has said that estrangement between a couple should not affect their child's education prospects.
Justice Krishna S Dixit thus allowed the petition filed by a mother and her 8-year old daughter, seeking directions to a school in Bengaluru to issue her Transfer certificate.
The plea was opposed by the Sorsfort International School on the grounds that without the consent of the father TC cannot be issued. Further, unless school dues are cleared, the request for issuance of TC cannot be considered. Since the child is now in Kolkata and attending the school online, therefore, there is no reason for shifting it to another school.
The father of the child also opposed the plea, contending that to which school a child of the estranged parents should be admitted, has to be a matter of consensus between them and that one of the parents cannot take such a decision unilaterally.
The bench on going through the records said "The respondent Nos. 9, 10 (School) & 11 (father) are not justified in opposing the request for the issuance of Transfer Certificate of the child who is now stated to be admitted to a school in Kolkata."
It added "Because of estrangement between the parents, child's educational prospects should not be affected by not issuing the TC."
The court also junked the contention of the father that selection of school for the child of estranged parents, has to be a matter of consensus between them and that one of the parents cannot take such a decision unilaterally.
The bench said "This cannot be countenanced as a thumb rule. Child is as yet a minor and it is a female, admittedly it is in the exclusive custody of the 2nd petitioner mother. Ordinarily, law favours custody of minor daughters being with the mothers, needs no elaboration."
It added "The legal battle for custody between the parents is stated to be still going on. What is being decided in this case is only the matter of Transfer Certificate and not the child custody or visitation rights."
The court then opined "Justice of the case warrants the issuance of Transfer Certificate to facilitate educational career progression of the child; in matters like this all agencies involved should coordinate and facilitate the same. This is reflected in the provisions of Sec.5 of the Right of Children to free and compulsory Education Act, 2009."
Accordingly the court directed the authorities to cause issuance of Transfer Certificate by the respondent nos. 9 & 10- School and hand it to the mother within ten days. Failing which the school and principal each shall pay to the second petitioner Rs.5,000 for the delay brooked each day, apart from running the risk of contempt of court.
Case Title: AMRUSHA DAS V. STATE OF KARNATAKA
Case No: WRIT PETITION NO.19057 OF 2021
Date of Order: 13TH DAY OF JANUARY, 2022
Appearance: Advocate SWAROOP SRINIVAS for petitioner; Advocate VINOD KUMAR, FOR R1-R3; Advocate VIDYULATHA, FOR R4; ASG SHANTHI BHUSHAN FOR R5-R8; Advocate M P SRIKANTH, FOR R9 & R10; Advocate SHYAM SUNDAR H V, for R11 |
vil Appeal No. 62 (N) of 1970 etc.
From the Judgment and Order dated 13.10.
1969 of the Madras High Court in W.A. No. 464 of 1967.
K. Parasaran, Attorney General, Dr. Y.S. Chitale, F.S. Nariman.
T.S. Krishnamurthy Iyer, A.K. Ganguli, B. Sen, L.N. Sinha, R.N. Sachthey, R.B. Datar, R.F. Nariman, K.J. John, H.N. Salve, Praveen Kumar, A.V. Rangam, T.Sridharan, K.D. Prasad, Mrs. Naresh Bakshi, K. Rajendra Choudhary, Ms. Seita Vaidialingam, V. Krishnamurthy, Ms. A. Subhashini, N. Net tar, G.S. Narayan, Badrinath Babu, Anip Sachthey and S.K. Agnihotri for the appearing parties.
The Judgment of the Court were delivered by SABYASACHI MUKHARJI, J.
The question involved in these appeals, special leave petitions and writ petitions is, whether levy of cess on royalty is within the competence of the State Legislature.
In order to appreciate the question, it is necessary to refer to certain facts.
Civil appeal No. 62/79 is an appeal by special leave from the judgment and order of the High Court of Madras, dated 13th October, 1969, in writ appeal No. 464/67.
The appellant is a public limited 698 company incorporated under the Indian Companies Act, 1913.
The Company at all relevant times, used to manufacture cement in its factory at Talaiyuthu in Tirunelveli district, and at Sankaridrug in Salem district of Tamil Nadu.
By G.O. Ms. No. 3668 dated 19th July, 1963, the Govt.
of Tamil Nadu sanctioned the grant to the appellant mining lease for limestone and kankar for a period of 20 years over an extent of 133.91 acres of land in the village of Chinnagoundanur in Sankaridrug Taluk of Salem district.
Out of the extent of 133.91 acres comprised in the mining lease, an extent of 126.14 acres was patta land and only the balance extent of 7.77 acres Govt.
The lease deed was in accordance with the Mineral Concession Rules, 1960.
The rates of royalty, dead rent and surface rent, were as follows: "Royalty: LIMESTONE Government Lands: Re.O.75 per tonne, but subject to a rebate of Re.O.38 per tonne to be given on Imestone beneficiated by froth flota tion method.
Patta Lands: Re.O.38 per tonne but subject to a rebate of Re.O. 19 per tonne to be given on limestone beneficiated by froth flotation method.
KANKAR Government Lands: Five per cent of the sale price at the pit 's mouth.
Patta Lands: 2 1/2% of the sale price at the pit 's mouth Dead rent: Government lands: Rs.25 (Rupees twentyfive only) per hectare per annum.
Patta lands: Rs. 12/50 (Rupees twelve & naya paise fifty only) per hectare per annum.
Surface rent and water rate: At such rate as the land revenue and cess assessable on the land are paid.
" The appellant started mining operations soon after the execution 699 of the lease deed and has ever since been paying the royal ties, dead rents and other amounts payable under the Deed.
Under section 115 of the Madras Panchayats Act (XXXV of 1958) (hereinafter called 'the Act '), as amended by Madras Act XVIII of 1964 (herein after called 'the amended Act '), as royalty the appellant was required to pay local cess @ 45 paise per rupee.
It may be mentioned that the said imposi tion was with retrospective effect along with local cess surcharge under section 116 of the Act.
The contention of the appellant is and was, at all relevant times, that cess on royalty cannot be levied.
This is the common question which falls for consideration and requires determination in these appeals and petitions.
To complete the narration of events, however, it has to be noted that the Collector sent a communication on 10th April, 1965, demanding cess or royalty payable under the Act on minerals carried on during the period 1.7.1961 to 31.12.1964, and the petitioner was threatened of serious consequences in case of default of payment on receipt of that communication.
Thereafter, writ petition No. 1864/65 was filed in the High Court of Madras.
By the judgment delivered and order passed on 23rd February, 1967.
a learned Single Judge of the Madras High Court Justice Kailasam dismissed the writ petition holding that the cess levied under section 115 of the act is a tax on land and, as such, falls under Entry 49 of the State List of the Schedule VII of the Constitution, and was within the competence of the State legislature.
Reliance was placed by the learned single Judge on the decision of this Court in H.R.S. Murthy vs Collector of Chittoor & Anr., ; He held that the cess levied under section 115 was a tax on land, though fixed with reference to the land revenue.
In regard to section 116 of the Act, the learned Single Judge held that the maximum limit had been prescribed by the Government by rules flamed under the Act, and, therefore, there was no arbitrariness about the levy.
Sub section 1 of section 115 of the Act enjoins that there shall be levied in every panchayat development block, a local cess at the rate of 45 paise on every rupee of land revenue payable to the Govt.
in respect of any land for every Fasli.
An Explanation to the said section was added and deemed always to have been incorporated by the Tamil Nadu Panchayats (Amendment and Miscellaneous Provisions) Act, 1964 being Tamil Nadu Act 18 of 1964, which provided as follows: "[Explanation.
In this section and in section 116, 'land revenue ' means public revenue due on land and includes 700 water cess payable to the Government for water supplied or used for the irrigation of land, royalty, lease amount or other sum payable to the Government in respect of land held direct from the Government on lease or licence, but does not include any other cess or the sur charge payable under section 116, provided that land revenue remitted shall not be deemed to be land revenue payable for the purpose of this section.]" Sub section 2 of section 115 of the Act provides that the local cess shall be deemed to be public revenue due on all the lands in respect of which a person is liable to pay local cess and all the said lands, the buildings upon the said lands and their products shall be regarded as the security for the local cess.
Sub section 3, 4 (a), (b), (c) and (d) of section 115 of the said Act deal with the application of the cess so collected for various purposes mentioned therein.
In the controversy before us, the said provisions need not be considered.
Section 116 of the Act is as follows: "116.
Every panchayat union council may levy on every person liable to pay land revenue to the Government in respect of any land in the panchayat union a local cess surcharge at such rate as may be considered suitable as an addition to the local cess levied in the panchayat development block under section 115 provided that the rate of local cess surcharge so levied (shall not exceed two rupees and fifty paise on every rupee of land revenue) payable in respect of such land.
" The words "shall not exceed two rupees & fifty paise on every rupee of land revenue" were substituted for the words "shall be subject to such maximum as may be prescribed" by section 3 of the Tamil Nadu Panchayats ' (2nd Amendment and Validation) Act, 1970, and these words were substituted for the words "shall not exceed one rupee and fifty paise on every rupee of land revenue" by section 2 of the Tamil Nadu Panchayats (Amendment) Act, 1972.
There was an appeal from the said decision of the learned Single Judge, to the division bench of the High Court.
The division bench by its judgment and order dated 13th October, 1969, dismissed the writ appeal, and held that local cess authorised by section 115 as aforesaid "was not land revenue but is a charge on the land itself and Section 115 701 merely quantified on the basis of the quantum of land reve nue".
The division bench held that the meaning of the Expla nation added to section 115 was that the cess is levied as a tax on land and is measured with reference to land revenue, royalty, lease amount etc.
as mentioned in the Explanation.
The division bench also relied on the decision of this Court in H.R.S. Murthy (supra), and further held that in the aforesaid view of the matter, it was not possible to accept the contention that section 115 of the Act read with the Explana tion contravened in any manner section 9 of the Mines and Miner als (Regulation and Development) Act, 1957.
By leave granted by this Court on 12th January, 1970 the appeal has been filed.
The appellant is bound to pay royalty to the Govt.
according to the rates provided in the Second Schedule to the said Act of 1957.
Clause (1) of Part VII of the lease document provides as follows: "The lessee/lessees shall pay the rent, water rate and royalties reserved by this lease at such times and in the manner provided in Part V and VI of these presents and shall also pay and discharge all taxes, rates, assessment and impositions whatsoever being in the nature of public demand which shall from time to time be charged, assessed or imposed by the authority of the Central and State Government upon or in respect of the premises and works of the lessee/lessees in common with other premises and work of a like nature except demands for land revenue.
" As mentioned hereinbefore, there is an obligation of the lessee to pay rent and other charges mentioned in the said Clause, and all other Central and State Government dues "except demands for land revenue".
The question, therefore, which arises is, is cess on royalty a demand of land revenue or additional royalty? For the appellants and/or petitioners we have heard Mr. Nariman,_ Dr. Chitale and Mr. Salve, and for the interven ers, S/Shri K.D. Prasad, Rajendra Choudhary and Ms. Seita Vaidialingam have made their submissions.
For the State of Tamil Nadu, Mr. Krishnamurthy Iyer and Mr. V. Krishnamurthy have made their submissions.
We have had the advantage of the submissions made by learned Attorney General on behalf of Union of India.
The issues are common in the writ peti tions as well as in the appeal and in the special leave petitions.
The question involved in the appeals and the writ petition is about the constitutional validity of Section 115(1) of the Act, in so far as it 702 sought to levy as local cess @ 45 naya paise on every rupee of the land revenue payable to the Government, the meaning of land revenue being artificially expanded by the explana tion so as to include royalty payable under the mining lease.
In this connection, it may be appropriate to refer to the Statement of Objects and Reasons for the amendment which stated, inter alia, as follows: "Under the Explanation to section 115 of the Act "land revenue" means public revenue due on land and includes water cess payable to the Government for water supplied or used for the irrigation of land but does not include any other cess or surcharge payable under section 116.
The Explanation does not cover "royal ties", lease amount or other sum payable to the Government in respect of land held direct from the Government on lease or licence which were included in the definition of "land revenue" under the Madras District Boards Act, 1920.
As under the Madras District Boards Act, 1920, certain panchayat union councils contin ued to levy the cess and surcharge under the Madras Panchayats Act, 1958 also.
It is con sidered that the levy should be on the same basis as under the Madras District Boards Act, 1920.
It is, therefore, proposed to include "royalty, lease amount and other sums payable to the Government" in the definition of land revenue in the Explanation to section 115 of the Act and also to validate the levy and collection of the cess and surcharge made hitherto on the said basis.
" It is obvious that the said amendment was intended to bring royalty within the Explanation and the definition of land revenue in section 115 as well as section 116 of the Act, and was effected by the Gazette Notification of 2nd Septem ber, 1964 by Act No. 18 of 1964.
In order to appreciate the controversy, it has no be understood that in this case royalty was payable by the appellant which was prescribed under the lease deed, the terms whereof have been noted hereinbefore.
The royalty had been fixed under the statutory rules and protected under those rules.
The royalty was fixed under the Mines and Minerals (Regulation & Development) Act, 1957 which is a Central Act by which the control of mines and minerals had been taken over by the Central Government.
It was an Act for the regulation of mines and development of minerals under the control of Union of India.
That 703 Act was to provide for the regulation of mines and the development of minerals under the control of the Union of India.
2 of the Act declares that it is expedient in the public interest that the Union of India should take under its control the regulation of mines and the develop ment of the minerals to the extent provided in the Act.
Section 9 of the Act provides as follows: "9.
(1) The holder of a mining lease granted before the commencement of this Act shall, notwithstanding anything contained in the instrument of lease or in any law in force at such commencement, pay royalty in respect of any mineral removed or consumed by him or by his agent, manager, employee, contractor or sub lessee from the leased area after such commencement, at the rate for the time being specified in the Second Schedule in respect of that mineral.
(2) The holder of a mining lease granted on or after the commencement of this Act shall pay royalty in respect of any mineral removed or consumed by him or by his agent, manager, employee, contractor or sub lessee from the leased area at the rate for the time being specified in the Second Schedule in respect of that mineral.
(2A) The holder of a mining lease, whether granted before or after the commencement of the Mines and Minerals (Regulation and Devel opment) Amendment Act, 1972, shall not be liable to pay any royalty in respect of any coal consumed by a workman engaged in a col liery provided that such consumption by the workman does not exceed one third of a tonne per month.
(3) The Central Government may, by notifica tion in the Official Gazette.
amend the Second Schedule so as to enhance or reduce the rate at which royalty shall be payable in respect of any mineral with effect from such date as may be specified in the notification: Provided that the Central Government shall not enhance the rate of royalty in respect of any mineral more than once during any period of three years.
" The Act was passed by virtue of the power of the Parliament 704 under Entry 54 of list I of the 7th Schedule.
Since the control of mines and the development of minerals were taken over by Parliament, the question that arises here is whether the levy or the impost by the State Legislature imposed in this case can be justified or sustained either under entry 49, 50 or 45 of list II of the 7th Schedule.
Courts of law are enjoined to gather the meaning of the Constitution from the language used and although one should interpret the words of the Constitution on the same princi ples of interpretation as one applies to an ordinary law but these very principles of interpretation compel one to take into account the nature and scope of the Act which requires interpretation.
It has to be remembered that it is a Consti tution that requires interpretation.
Constitution is the mechanism under which the laws are to be made and not merely an Act which declares what the law is to be.
See the obser vations of Justice Higgins in the Attorney General for the State of New South Wales vs The Brawery Employees Union of New South Wales, ; at 611 2.
In re: C.P. and Berar Sales of Motor Spirit & Lubricants Taxation Act, 1938, [1939] FCR at p. 1, Chief Justice Gwyer of the Federal Court of India relied on the observations of Lord Wright in James vs Common wealth of Australia, and observed that a Constitution must not be con strued in any narrow or pedantic sense, and that construc tion most beneficial to the widest possible amplitude of its powers, must be adopted.
The learned Chief Justice empha sised that a broad and liberal spirit should inspire those whose duty it is to interpret the Constitution, but they are not free to stretch or pervert the language of the enactment in the interest of any legal or constitutional theory, or even for the purposes of supplying omissions or correcting supposed errors.
A Federal Court will not strengthen, but only derogate from, its position, if it seeks to do anything but declare the law; but it may rightly reflect that a Constitution of a country is a living and organic thing, which of all instruments has the greatest claim to be con strued ut res magis valeat guam pereat. 'It is better that it should live than that it should perish '.
Certain rules have been evolved in this period, and it is wellsettled now that the various entries in the three lists are not powers but fields of legislation.
The power to legislate is given by article 246 and other articles of the Constitution.
See the observations of this Court in Calcutta Gas Co. vs State of West Bengal, [1962] Suppl 3 SCR 1.
The entries in the three lists of the Seventh Schedule to the Constitution, 705 are legislative heads or fields of legislation.
These demar cate the area over which appropriate legislature can oper ate.
It is well settled that widest amplitude should be given to the language of these entries, but some of these entries in different lists or in the same list may overlap and sometimes may also appear to be in direct conflict with each other.
Then, it is the duty of the court to find out its true intent and purpose and to examine a particular legislation in its pith and substance to determine whether it fits in one or the other of the lists.
See the observa tions of this Court in H.R. Banthia & Ors. etc.
vs Union of India & Ors.
, ; at 489 and Union of India vs Shri H.S. Dillon; , at 792.
The lists are designed to define and delimit the respective areas of respective competence of the Union and the States.
These neither impose any implied restriction on the legislative power conferred by Article 246 of the Constitution, nor prescribe any duty to exercise that legislative power in any particular manner.
Hence, the language of the entries should be given widest scope, D.C. Rataria vs Bhuwalka Brothers Ltd., ; , to find out which of the meaning is fairly capable because these set up machinery of the Govt.
Each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be comprehended in it.
In interpreting an entry it would not be reasonable to import any limitation by comparing or con trasting that entry with any other one in the same List.
It is in this background that one has to examine the present controversy.
Here, we are concerned with cess on royalty.
One can have an idea as to what cess is, from the observations of Justice Hidayatullah, as the learned Chief Justice then was, in M/s Guruswamy & Co. etc.
vs State of Mysore & Ors., where at page 571, the learned Judge ob served: "The word 'cess ' is used in Ireland and_.
is still in use in India although the word rate has replaced it in England.
It means a tax and is generally used when the levy is for some special administrative expense which the name (health cess, education cess, road cess etc.) indicates.
When levied as an increment to an existing tax, the name matters not for the validity of the cess must be judged of in the same way as the validity of the tax to which it is an increment." The said observations were made in the dissenting judg ment, but there was no dissent on this aspect of the matter.
Relying on the aforesaid observations, Mr Nariman appearing for the appellant and 706 the petitioners suggested that the impugned levy in this case is nothing but a tax on royalty and is therefore ultra vires the State legislature.
Mr. Krishnamurthy Iyer appear ing for the State of Tamil Nadu submitted that the cess in question in the instant case is a levy in respect of land for every fasli.
He urged that the words "a local cess at the rate of 45 naya paise on every rupee of land revenue payable" qualify the words "land revenue".
These words were only intended, according to Mr. Krishnamurthy Iyer, to mean cess payable.
It is, however, not possible to accept this submission, in view of the obligation indicated by the language of the provisions.
Cess is not on land, but on royalty which is included in the definition of 'land reve nue '.
None of the three lists of the 7th Schedule of the Constitution permits or authorises a State to impose tax on royalty.
This levy has been sought to be justified under Entry 45 of List II of the 7th Schedule.
Entry 45 deals with land revenue, which is a well known concept and has existed in India before the Constitution came into force.
In N.R. Reddy & Ors.
vs State of A.P. & Ors., [1965] 2 Andhra Law Times 297, Jaganmohan Reddy, J. as the learned Judge then was of the Andhra Pradesh High Court, while sitting in a division bench observed that no land revenue Act existed in the composite State of Madras nor had the ryotwari system ever been established by legislative enactment.
The learned Judge at p. 306 of the report observed that in the earlier days, sovereigns had in exercise of their prerogative right claimed a share of the produce of all cultivated land known as 'Rajabhagam ' or by any of the various other names, and had fixed their share or its commuted money value from time to time, according to their will and pleasure.
The learned Judge noted that as long as the share of the sovereign was being paid, the sovereign had no right to the possession of the lands, and the proprietorship of these lands was vested in the occupier, who could not be removed because another offered more.
The right of the sovereign to a share in the produce as observed by the Govt.
of Madras in 1856 "is not rent which consists of all surplus produce after paying the cost of cultivation and the profits of agricultural stock but land revenue only which ought, if possible, to be so lightly assessed as to leave a surplus or rent to the occu pier, when he in fact lets the land to others or retains it in his own hands.
" It was noted that the amount of tax that was levied before the Mohamedan Rule, amounted to 1/8th, 1/6th or 1/12th according to Manu depending on the differ ences in the soil and the labour necessary to cultivate it, and it even went up to 1/4th part, in times of urgent neces sity, as of war or invasion.
The later commentators, Yajnav alkya, Apastamba, Gautama, Baudhayana and Narada, have all asserted not only the right but the extent of the share.
When the British came to India they followed not only the precedent 707 of the previous Mohamedan Rulers who also claimed enormous land revenue, with this difference that what the Mohamedan Rulers claimed they could never fully realise, but what the British Rulers claimed they realised with vigour.
It is not necessary to refer in detail how land revenue developed in India after the advent of the British Rule.
There was an appeal from the said decision of the High Court of Andhra Pradesh and this Court dismissed the appeal in State of A. P. vs N.R. Reddy & Ors., ; It is, however, clear that over a period of centuries, land revenue in India has acquired a connot active meaning of share in the produce of land to which the King or the Govt.
is entitled to receive.
It was contended on behalf of the appellants that the impugned measure being a tax, not on share of the produce of the land but on royalty; royalty being the return received from the produce of the land, revenue was payable for winning minerals from the land.
In the premises it was contended that it cannot be attributable to Entry 45 of List II of the 7th Schedule, being not a land revenue.
It has, however, to be borne in mind that Explana tion to Section 115(1) was added and there was an amendment as we have noted before.
That very Explanation makes a distinction between land revenue as such and royalty which by amendment is deemed to be land revenue.
It is, therefore, recognised by the very force of that Explanation and the amendment thereto that the expression 'royalty ' in sections 115 & 116 of the Act cannot mean land revenue properly called or conventionally known, which is separate and dis tinct from royalty.
It was also contended on behalf of the respondent State of Tamil Nadu of Mr. Krishnamurthy Iyer that it could also be justified under Entry 49 of List II of the 7th Schedule as taxes on lands and buildings.
This, however, cannot be accepted.
In this connection, reference may be made to the decision of this Court in Raja Jagannath Baksh Singh vs The State of U.P. & Anr., ; where at p. 229 it was indicated that the expression 'lands ' in Entry 49 is wide enough to include agricultural land as well as non agricultural land.
Gajendragadkar, J. as the learned Chief Justice then was, observed that the cardinal rule of inter preting the words used by the Constitution in conferring legislative power was that these must receive the most liberal construction and if they are words of wide amplitude the construction must accord with it.
If general word was used, it must be so construed so as to extend to all ancil lary or subsidiary matters that can reasonably be included in it.
So construed, there could not be any doubt that the word 'land ' in Entry 48, List II of the 7th Schedule 708 includes all land whether agricultural or non agricultural.
Hence, since the impugned Act imposed tax on land and build ing which was within the competence of the State Legislature and its validity was beyond challenge but the Court observed that as there was Entry 46 in List H which refers to taxes on agricultural income, it is clear that agricultural income is not included in Entry 49.
If the State Legislature pur ports to impose a tax on agricultural income it would not be referable to Entry 49.
Mr. Krishnamurthy Iyer relied on the said principle.
But in the instant case, royalty being that which is payable on the extraction from the land and cess being an additional charge on that royalty, cannot by the parity of the same reasoning, be considered to be a tax on land.
But since it was not a tax on land and there is no Entry like Entry 46 in the instant situation like the posi tion before this Court in the aforesaid decision, enabling the State to impose tax on royalty in the instant situation, the State was incompetent to impose such a tax.
There is a clear distinction between tax directly on land and tax on income arising from land.
The aforesaid decision confirmed the above position.
In New Manek Chand Spinning & Weaving Mills Co. Ltd. & Ors., vs Municipal Corpn.
of the City of Allahabad & Ors.
, ; at 696, this Court after referring to the several decisions observed that Entry 49 of list II of the 7th Schedule only permitted levy of tax on land and building.
It did not permit the levy of tax on machinery contents in or situated on the building even though the machinery was there for the use of the building for a particular purpose.
Rule 7(2) of the Bombay Municipal Corporation Rules was held to be accordingly ultra vires in that case.
In S.C. Nawn vs W.T.O., Calcutta & Ors., ; this Court had occasion to consider this and upheld the validity of the Wealth Tax Act, 1957 on the ground that it fell within Entry 86 of List I and not Entry 49 of List II.
Construing the said Entry, this Court observed that Entry 49 list II contemplated a levy on land as a unit and the levy must be directly imposed on land and must bear a definite relationship to it.
Entry 49 of list Il was held to be more general in nature than Entry 86, list I, which was held to be more specific in nature and it is well settled that in the event of conflict between Entry 86, list I and Entry 49 of list II, Entry 86 prevails as per Article 246 of the Constitution.
In Asstt.
Commissioner of Urban Land Tax & Ors.
vs The Buckingham & Carnatic Co. Ltd. etc.; , at 278, this Court reiterated the principles laid down in S.C. Nawn 's case (supra) and held that entry 49 of list II was confined to a tax that was directly on land as a unit.
In Second Gift Tax Officer, Mangalore etc.
vs D.H. Nazareth etc.
; , at 200 it was held that a tax on the gift 709 of land is not a tax imposed directly on land but only on a particular user, namely, the transfer of land by way of gift.
In Union of India vs H.S. Dhillon, (supra), this Court approved the principle laid down in S.C. Nawn 's case as well as Nazareth 's case (supra).
In Bhagwan Dass Jain vs Union of India, ; at 816 this Court made a distinction between the levy on income from house property which would be an income tax, and the levy on house property itself which would be referable to entry 49 list II.
It is, there fore, not possible to accept Mr. Krishnamurthy Iyer 's sub mission and that a cess on royalty cannot possibly be said to be a tax or an impost on land.
Mr. Nariman is right that royalty which is indirectly connected with land, cannot be said to be a tax directly on land as a unit.
In this connec tion, reference may be made to the differentiation made to the different types of taxes for instance, one being profes sional tax and entertainment tax.
In the Western India Theatres Ltd. vs The Cantonment Board, Poona Cantonment, ; at 69 it was held that an entertain ment tax is dependent upon whether there would or would not be a show in a cinema house.
If there is no show, there is no tax.
It cannot be a tax on profession or calling.
Profes sional tax does not depend on the exercise of one 's profes sion but only concerns itself with the right to practice.
It appears that in the instant case also no tax can be levied or is leviable under the impugned Act if no mining activi ties are carried on.
Hence, it is manifest that it is nor related to land as a unit which is the only method of valua tion of land under entry 49 of list II, but is relatable to minerals extracted.
Royalty is payable on a proportion of the minerals extracted.
It may be mentioned that the Act does not use dead rent as a basis on which land is to be valued.
Hence, there cannot be any doubt that the impugned legislation in its pith and substance is a tax on royalty and not a tax on land.
On behalf of the State of Tamil Nadu, learned counsel Mr. Krishnamurthy Iyer sought to urge that it can also be sustained under entry 50, list II.
Entry 50 of list II of the 7th Schedule deals with taxes on mineral rights subject to limitation imposed by Parliament relating to mineral development.
Entry 23 of List II deals with regulation of mines and mineral development subject to the provisions of list I with respect to regulation and development under the control of the Union and entry 54 in list I deals with regulation of mines and minerals under the control of Union declared by the Parliament by law to be expedient in public interest.
Even though minerals are part of the State List they are treated separately, and therefore the principle that the specific excluded the general, must be applied.
See the observations of Waverly Jute Mills Co. Ltd. vs Raymon & Co. (1) Pvt. Ltd., [1963] 3 710 SCR 209 at 220, where it was held that land in entry 49 of list II cannot possibly include minerals.
In this connection, learned Attorney General appearing for the Union of India submitted before us that in order to sustain the levy, the power of the State Legislature has to be found within one or more of the entries of list II of the 7th Schedule.
The levy in question has to be either a tax or a fee or an impost.
If it is neither a tax nor a fee then it should be under one of the general entries under List II.
The expression 'land ' according to its legal significance has an indefinite extent both upward and downwards, the surface of the soil and would include not only the face of the earth but everything under it or over it.
See the obser vations in Anant Mills Co. Ltd. vs State of Gujarat & Ors., [19751 3 SCR 220 at 249.
The minerals which are under the earth, can in certain circumstances fall under the expres sion 'land ' but as tax on mineral rights is expressly cov ered by entry 50 of list II, if it is brought under the head taxes under entry 49 of list II, it would render entry 50 of list II redundant.
Learned Attorney General is right in contending that entries should not be so construed as to make any one entry redundant.
It was further argued that even in pith and substance the tax fell to entry 50 of list II, it would be controlled by a legislation under entry 54 of list I.
On the other hand, learned Attorney General submitted that if it be held to be a fee, then the source of power of the state legislature is under entry 66 read with entry 23 of list II.
Here also the extent to which regulation of mines and mineral development under the control of the Union is declared by Parliament by law to be expedient in the public interest, to the extent such legislation makes provi sions will denude the State Legislature of its power to override the provision under entry 50 of list II.
In view of the Parliamentary legislation under entry 54, list I and the declaration made under section 2 and provisions of section 9 of the Act, the State Legislature would be overridden to that extent.
section 2 declares that it is expedient in the public interest that Union should take under its control the regu lation of mines and the development of minerals to the extent provided therein.
In this connection, reference may be made to the decision of this Court in The Hingir Rampur Coal Co. Ltd. & Ors.
vs The State of Orissa & Ors., ; See also the observations in State of Orissa vs M.A. TuIloch & Co., ; and Baijnath Kedia vs State of Bihar & Ors., ; at 111 115.
Our attention was drawn to the decision of the division bench 711 judgment of the High Court of Mysore in M/s. Laxminarayana, Mining Co., Bangalore vs Taluk Der.
Board.
, AIR There speaking for the court, one of us, Venkataramiah J of the Mysore High Court, as the learned Chief Justice then was, observed that a combined reading of entries 23 and 50 in list II and entry 54 of list I, establishes that as long as the Parliament does not make any law in exercise of its power under entry 54, the powers of the State Legisla ture in entries 23 & 50 would be exercisable by the State Legislature.
But when once the Parliament makes a declara tion by law that it is expedient in the public interest to make regulation of mines and minerals development under the control of the Union, to the extent to which such regulation and development is undertaken by the law made by the Parlia ment, the power of the State Legislature under entries 23 & 50 of List II are denuded.
There the court was concerned with the Mysore Village Panchayats & Local Boards Act, 1959.
Thus, it was held that it could not, therefore, be said that even after passing of the Central Act, the state legislature by enacting section 143 of the Act intended to confer power on the Taluk Board to levy tax on the mining activities carried on by the persons holding mineral concessions.
It followed that the levy of tax on mining by the Board as per the impugned notification was unauthorised and liable to be set aside.
At p. 306 of the said report, it was held that royal ty under section 9 of the Mines and Minerals Act was really a tax.
To the similar effects are the observations of the High Court of Patna in M. Lal & Ors.
vs The State of Bihar & Ors.
, AIR 1965 Patna 491 at 494.
Mr. Krishnamurthy Iyer, however, referred to the decision of this Court in H.R.S. Murthy 's case (supra).
There under the terms of a mining lease the lessee worked the mines and won iron ores in a tract of land in a village in Chittor district and bound himself to pay a dead rent if he used the leased land for the extraction of iron ore, to pay a royalty on iron ore if it were used for extraction of iron and in addition to pay a surface rent in respect of the surface area occupied or used.
In the said decision the legislative competence of sections 78 & 79 of the Madras District Boards Act was upheld by which land cess was made payable on the basis of royalty.
This Court proceeded on the basis that other cess related to land and would therefore be covered by entry 49 of list II.
It was held that land cess paid on royalty has a direct relation to the land and only a remote relation with mining.
This, with respect, seems to be not a correct approach.
It was further observed that it was not necessary to consider the meaning of the expression 'tax on mineral right ' follow ing under Entry 50 of List II in as much as according to this Court, Parliament has not made any tax on mineral rights.
This is not a correct basis.
712 In H.R.S. Murthy 's case (supra), at p. 676 of the re port, it was observed by this Court as follows: "When a question arises as to the precise head of legislative power under which a taxing statute has been passed, the subject for enquiry is what in truth and substance is the nature of the tax.
No doubt, in a sense, but in a very remote sense, it has relationship to mining as also to the mineral won from the mine under a contract by which royalty is payable on the quantity of mineral extracted.
But that, does not stamp it as a tax on either the extraction of the mineral or on the miner al right.
It is unnecessary for the purpose of this case to examine the question as to what exactly is a tax on mineral rights seeing that such a tax is not leviable by Parliament but only by the State and the sole limitation on the State 's power to levy the tax is that it must not interfere with a law made by Parlia ment as regards mineral development.
Our attention was not invited to the provision of any such law created by Parliament.
In the context of sections 78 and 79 and the scheme of those provisions it is clear that the land cess is in truth a "tax on lands" within Entry 49 of the State List.
" It seems, therefore, that attention of the Court was not invited to the provisions of Mines and Minerals (Development & Regulation) Act, 1957 and section 9 thereof.
section 9(3) of the Act in terms states that royalties payable under the 2nd Sched ule of the Act shall not be enhanced more than once during a period of 4 years.
It is, therefore, a clear bar on the state legislature taxing royalty so as to in effect amend 2nd Schedule of the Central Act.
In the premises, it cannot be right to say that tax on royalty can be a tax on land, and even if it is a tax, if it falls within entry 50 will be ultra vires the State legislature power in view of section 9(3) of the Central Act.
In Hingir Rampur Coal Co. Ltd. vs The State of Orissa (supra), Wanchoo J. in his dissenting judg ment has stated that a tax on mineral rights being different from a duty of excise, pertains only to a tax that is levi able for the grant of the right to extract minerals, and is not a tax on minerals as well.
On that basis, a tax on royalty would not be a tax on mineral rights and would therefore in any event be outside the competence of the state legislature.
The Rajasthan, Punjab, Gujarat and Orissa High Courts have held that royalty is not a tax.
Bherulal vs State of Rajasthan & Anr., AIR ; Dr. S.S. Sharma & Anr.
vs State of 713 Pb.
& Ors., AIR at 84; Saurashtra Cement & Chemicals India Ltd. vs Union of India & Anr., AIR 1979 Guj.
180 at 184 and L.N. Agarwalla & Ors.
vs State of Orissa & Ors.
, AIR 1983 Orissa 210.
It was contended by Mr. Krishnamurthy Iyer that the State has a right to tax minerals.
It was further contended that if tax is levied, it will not be irrational to corre late it to the value of the property and to make some kind of annual value basis of tax without intending to tax the income.
In view of the provisions of the Act, as noted hereinbefore, this submission cannot be accepted.
Mr. Krish namurthy Iyer also further sought to urge that in entry 50 of list II, there is no limitation to the taxing power of the State.
In view of the principles mentioned hereinbefore and the expressed provisions of section 9(2) of the Mines & Minerals (Regulation & Development) Act, 1957, this submis sion cannot be accepted.
This field is fully covered by the Central legislation.
In any event, royalty is directly relatable only to the minerals extracted and on the principle that the general provision is excluded by the special one, royalty would be relatable to entries 23 & 50 of list II, and not entry 49 of list II.
But as the fee is covered by the Central power under entry 23 or entry 50 of list II, the impugned legisla tion cannot be upheld.
Our attention was drawn to a judgment of the High Court of Madhya Pradesh in Miscellaneous Peti tion No. 410/83 M/s Hiralal Rameshwar Prasad & Ors.
vs The State of Madhya Pradesh & Ors., which was delivered on 28th March, 1986 by a Division Bench of the High Court.
J.S. Verma, Acting Chief Justice, as His Lordship then was, held that development cess by section 9 of the Madhya Pradesh Karadhan Adhiniyam, 1982 is ultra vires.
It is not necessary in the view taken by us, and further in view that the said decision is under appeal in this Court, to examine it in detail.
In the aforesaid view of the matter, we are of the opinion that royalty is a tax, and as such a cess on royalty being a tax on royalty, is beyond the competence of the State Legislature because section 9 of the Central Act covers the field and the State Legislature is denuded of its competence under entry 23 of list II.
In any event, we are of the opinion that cess on royalty cannot be sustained under entry 49 of list II as being a tax on land.
Royalty on mineral rights is not a tax on land but a payment for the user of land.
Mr. Krishnamurthy Iyer, however, submitted that in any event, the decision in H.R.S. Murthy 's case (supra) was the decision of the Constitution Bench of this Court.
Cess has been realised on that basis 714 for the organisation of village and town panchayats and comprehensive programme of measures had been framed under the National Extension Service Scheme to which our attention was drawn.
Mr. Krishnamurthy Iyer further submitted that the Directive Principle of State Policy embodied in the Consti tution enjoined that the State should take steps to organise village panchayats and endow them with power and authority as may be necessary to enable them to function as units of self Government and as the amounts have been realised on that basis, if at all, we should declare the said cess on royalty to be ultra vires prospectively.
In other words, the amounts that have been collected by virtue of the said provisions, should not be declared to be illegal retrospec tively and the State made liable to refund the same.
We see good deal of substance in this submission.
After all, there was a decision of this Court in H.R.S. Murthy 's case (supra) and amounts have been collected on the basis that the said decision was the correct position.
We are, therefore, of the opinion that we will be justified in declaring the levy of the said cess to be ultra vires the power of the State Legislature prospectively only.
In that view of the matter, the appeals must, therefore, be allowed and the writ petitions also succeed to the extent indicated above.
We declare that the said cess by the Act under section 115 is ultra vires and the respondent State of Tamil Nadu is restrained from enforcing the same any fur ther.
But the respondents will not be liable for any refund of cess already paid or collected.
The appeals are disposed of accordingly.
The special leave petitions and writ peti tions are also disposed of in those terms.
In the facts and the circumstances of the case, the parties will pay and bear their own costs.
OZA, J.
While I agree with the conclusions reached by my learned brother Hon ' Mukharji, J. I have my own reasons for the same.
The main argument in favour of this levy imposed by the State Legislature is on the basis of Entry 49 in List II of the Seventh Schedule conferring jurisdiction on the State Legislature.
The question therefore to be determined is whether the jurisdiction of the State Legislature under Item 49 of List II could be so exercised to impose a cess on the royality prescribed under Section 9 of the .
The entries which are relevant for the purpose of deter mining this questions are: Entry 54 List I reads: 715 "Regulation of mines and mineral development to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest.
" Entry 23 List II reads: "Regulation of mines and mineral development subject to the provisions of List I with respect to regulation and development under the control of the Union.
" Entry 49 List II reads: "Taxes on lands and buildings.
" Entry 50 List II reads: "Taxes on mineral rights subject to any limi tations imposed by Parliament by law relating to mineral development.
" The language of Entries 23 and 50 in List I1 clearly sub jects the authority or jurisdiction on the State Legislature to any enactment made by the Parliament.
Entry 23 talks of regulation and Entry 50 talks of taxes on mineral rights.
It therefore could not be disputed that if the cess imposed under section 115 of the Madras Village Panchayat Act is a cess or tax on mineral rights then that jurisdiction could be exercised by the State Legislature subject to the law enacted by the Parliament.
The Parliament in Section 9(1) of the has fixed the limits of royality on the mining rights.
It was therefore contended on behalf of the State that in fact what is imposed under Section 115 is not a cess on the mining rights or on royality but is a tax on land which clearly falls within the authority of the State legislature in Entry 49 of List II.
Section 9 of the reads: "9(1) The holder of a mining lease granted before the commencement of this Act shall, notwithstanding anything contained in the instrument of lease or in any law in force at such commencement, pay royalty in respect of any mineral removed or consumed by him or by his gent, manager, employee, contractor or sub lessee from the leased area 716 after such commencement, at the rate for the time being specified in the Second Schedule in respect of that mineral.
(2) The holder of a mining lease granted on or after the commencement of this Act shall pay royalty in respect of any mineral removed or consumed by him or by his agent, manager, employee, contractor or sub lessee from the leased area at the rate for the time being specified in the Second Schedule in respect of that mineral.
(2A) The holder of a mining lease, whether granted before or after the commence of the Mines and Minerals (Regulation and Develop ment) Amendment Act, 1972 shall not be liable to pay any royalty in respect of any coal consumed by a workman engaged in a colliery provided that such consumption by the workmen does not exceed one third of a tonne per month.
(3) The Central Government may, by notifica tion in the Official Gazette, amend the Second Schedule so as to enhance or reduce the rate at which royalty shall be payable in respect of any mineral with effect from such date as may be specified in the notification.
Provided that the Central Government shall not enhance the rate of royalty in respect of any mineral more than once during any period of three years.
" It is clear that by this Act alongwith Schedule limits on royality has been fixed and the authority has been given to Parliament alone to vary it and that too not more than once in a period of three years.
Admittedly royality as not based on the area of land under mining but per unit of minerals extracted.
Section 115 of the Madras Village Panchayat Act reads as under: "(1) There shall not be levied in every pan chayat development block, a local cess at the rate of 45 naye paise on every rupee of land revenue payable to the Government in respect of any land for every Fasli.
Explanation: In this Section and in section 116, 'land revenue ' means public revenue due on land and includes water cess payable to the Government for water supplied 717 or used for the irrigation of land, royalty, lease amount for other sum payable to the Government in respect of land held direct from the Government on lease or licence, but does not include any other cess or the surcharge payable under Section 116, provided that land revenue remitted shall not be deemed to be land revenue for the purpose of this Section.
(2) The local cess payable under this Sub section (1) shall be deemed to be public revenue due on the lands in respect of which a person is liable to pay local cess and all the said lands, the buildings upon the said lands and their products shall be regarded as the security for the local cess.
(3) The provisions of the Madras Revenue Recovery Act, 1864 (Madras Act II of 1864) shall apply to the payment and recovery of the local cess payable under this Act just as they apply to the payment and recovery of the revenue upon the lands in respect of which the local cess under this act is payable.
(4)(a) Out of the process of the local cess so collected in every panchayat development block, a sum representing four ninths of the proceeds shall be credited to the Panchayat Union (Education) Fund.
(b) Out of the proceeds of the local cess collected in every panchayat town in a pan chayat development block, a sum representing two ninths of the said proceeds shall be cred ited to the town panchayat fund.
(c) Out of the balance of the local cess credited in the panchayat development block, such percentage as the panchayat union council may fix shall be credited to the village panchayat fund, and the percentage shall be fixed so as to secure as nearly as may be that the total income derived by all the village panchayats in the panchayat union does not fall short of an amount calculated at 20 naye paise for each individual of the village population in the panchayat union.
(d) The balance of the proceeds of the local cess collected in the panchayat develop ment block shall be cre 718 dited to the funds of the panchayat union council.
" The explanation to sub clause I is the subject matter of controversy in this case.
Sub clause I provides for levy of 45 naye paise for every rupee of land revenue payable to the Government in the explanation a fiction is created thereby even the royalty payable have been included within the definition of "land revenue".
As it provides "royalty, lease amount or any other sum payable to the Government in respect of land.
" This phraseology has been incorporated by an amendment in 1964 by the Madras Village Panchayat Amendment Act, 1964 Section 13 wherein the explanation to Section 115 was substituted and substituted retrospectively wherein this royalty has also been included in the definition of 'land revenue ' and it is on this ground that it was mainly con tended that land revenue being a tax on land is within the authority of the State Legislature under Item 49 of List II and therefore the cess which is a tax on land revenue itself or an imposition on the land revenue and hence could not be anything else but a tax falling within the ambit of tax on land as provided by entry 49 List II and it was therefore contended that it would not fall within the ambit of entry 50 List II as if it falls within the ambit of entry 50 of List II, it would be beyond the authority of the State legislature as by passing the Parliament has denuded the State Legislature of its authority to levy any tax on mining rights.
Whether royality is a tax is not very material for the purpose of determination of this question in this case.
It is admitted that royality is charged on the basis of per unit of minerals extracted.
It is no doubt true that mineral is extracted from the land and is available, but it could only be extracted if there are three things: (1) Land from which mineral could be extracted.
(2) Capital for providing machinery, instruments and other requirements.
(3) Labour It is therefore clear that unit of charge of royalty is not only land but land + Labour + Capital.
It is therefore clear that if royalty is a tax or an imposition or a levy, it is not on land alone but it is a levy or a tax on mineral (land), labour and capital employed in extraction of the mineral.
It therefore is clear that royalty if is imposed by the Parlia 719 ment it could only be a tax not only on land but no these three things stated above.
It is not in dispute that the cess which the Madras Village Panchayat Act proposes to levy is nothing but an additional tax and originally it was levied only on land revenue, apparently land revenue would fall within the scope of entry 49 but it could not be doubted that royalty which is a levy or tax on the extracted mineral is not a tax or a levy on land alone and if cess is charged on the royalty it could not be said to be a levy or tax on land and therefore it could not be upheld as imposed in exercise of jurisdic tion under Entry 49 List II by the State Legislature.
Thus it is clear that by introducing this explanation to Section 115 clause (1) widening the meaning of word 'land revenue ' for the purposes of Section 115 and 116.
When the Legislature included Royalty, it went beyond its jurisdic tion under entry 49 List II and therefore clearly is without the authority of law.
But this also may lead to an interest ing situation.
This cess levied under Section 115 of the Madras Village Panchayat Act is levied for purposes indicat ed in the scheme of the Act and it was intended to be levied on all the lands falling within the area but as this cess on royalty is without the authority the result will be that the cess is levied so far as lands other than the lands in which mines are situated are concerned but lands where mines are situated this levy of cess is not in accordance with that law.
This anomaly could have been averted if the Legislature in this explanation had used words 'surface rent ' in place of royalty.
Even if the lands where mines are situated and which are subject to licence and mining leases even for those lands there is a charge on the basis of the surface of the land which is sometimes described as surface rent or sometimes also as 'dead rent '.
It could not be doubted that if such a surface rent or dead rent is a charge or an impo sition on the land only and therefore will clearly fall within the purview of entry 49 List H and if a cess is levied on that it will also be justified as tax on land falling within the purview of entry 49 and it will also be uniform as this cess would be levied in respect of the lands irrespective of the fact as to whether the land is one where a mine is situated or land which is only used for other purposes for which land revenue is chargeable.
R.S.S. Appeal allowed. | The appellant company used to manufacture cement and was granted mining lease for limestone and kankar by the Govern ment of Tamil Nadu in accordance with the Mineral Concession Rules, 1960.
The royalty was fixed under the Mines and Minerals (Regulation & Development) Act, 1957 which is a Central Act by which the control of mines and minerals had been taken over by the Central Government for the regulation and development of minerals.
Sub section 1 of section 115 of the Madras Panchayats Act, 1958 enjoins that there shall be levied in every pan chayat development block, a local cess at the rate of 45 paise on every rupee of land revenue payable to the Govern ment in respect of any land for every Fasli.
An explanation to the said section was added, and was deemed always to have been incorporated by the Tamil Nadu Panchayats (Amendment and Miscellaneous Provisions) Act, 1964.
In this explanation a fiction was created whereby even the royalty payable had been included within the definition of "land revenue".
The appellant filed a writ petition in the High Court challenging the competence of the State legislature to levy cess on royalty.
A learned Single Judge dismissed the writ petition holding that the cess levied 693 under section 115 of the Madras panchayats Act was a tax on land and, as such, fell under Entry 49 of the State List of Schedule VII of the Constitution.
The Division Bench dis missed the appellant 's appeal and held that local cess authorised by section 115 was not land revenue but was a charge on the land itself, and section 115 merely quantified the basis of the quantum of land revenue.
The learned Single Judge, as well as the Division Bench, relied on the decision of this Court in H.R.S. Murthy vs Collector of Chittoor, ; Before this Court, it was contended on behalf of the appellant that the levy of cess on royalty in this case was nothing but a tax on royalty and was therefore ultra vires the State legislature.
On the other hand, it was contended that the cess in the present case was a levy in respect of land and could be justified or sustained either under entry 49, 50 or 45 of List II of the 7th Schedule to the Constitu tion.
It was further submitted that the cess having been realised on the basis of the decision of this Court in "H.R.S. Murthy" case, if at all, the Court shall declare the said cess on royalty to be ultra vires prospectively.
Allowing the appeal, this Court, HELD: (E.S. Venkataramiah, C J, Sabyasachi Mukharji, Ranganath Misra, B.C. Ray, K.N. Singh and section Natarajan, JJ. per Sabyasachi Mukharji, J.) (1) Courts of law are enjoined to gather the meaning of the Constitution from the language used, and although one should interpret the words of the Constitution on the same principles of interpretation as one applied to an ordinary law but these very principles of interpretation compel one to take into account the nature and scope of the Act which requires interpretation.
It has to be remembered that it is a Constitution that requires interpretation.
Constitution is the mechanism under which the laws are to be made and not merely an Act which declares what the law is to be.
[704B C] The Attorney General for the State of New South Wales vs The Brewery Employees Union of New South Wales; , , referred to.
(2) A Constitution must not be construed in any narrow or pedantic sense, and construction most beneficial to the widest possible amplitude of its powers, must be adopted.
A broad and liberal spirit should inspire those whose duty it is to interpret the Constitution, but 694 they are not free to stretch or pervert the language of the enactment in the interest of any legal or constitutional theory, or even for the purposes of supplying omissions or correcting supposed errors.
[704D E F] In re. ' C.P. Berar Sales of Motor Spirit & Lubricants Taxation Act, 1938, [1939] FCR p. 1 and James vs Common wealth of Australia, , referred to.
(3) It is well settled now that the various entries in the three lists are not powers but fields of legislation.
The power to legislate is given by Article 246 and other articles of the Constitution.
[704G] Calcutta Gas Co. vs State of West Bengal, [1962] Suppl.
3 SCR 1, referred to.
(4) It is well settled that widest amplitude should be given to the language of these entries, but some of these entries in different lists or in the same list may overlap and sometimes may also appear to be in direct conflict with each other.
Then, it is the duty of the court to find out its true intent and purpose and to examine a particular legislation in its pith and substance to determine whether it fits in one or the other of the lists.
Each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be comprehended in it.
[705A B & D] H.R. Banthia & Ors. etc.
vs Union of India & Ors.
, ; ; Union of India vs H.S. Dhillon, ; and D.C. Rataria vs Bhuwalka Brothers Ltd., ; , referred to.
(5) It is clear that over a period of centuries, land revenue in India has acquired a cannot active meaning of share in the produce of land to which the King or the Gov ernment is entitled to receive.
[707B] N.R. Reddy & Ors.
vs State of A.P., [1965] 2 Andhra Law Times 297 and State ofA.P.v.
N.R. Reddy & Ors., ; , referred to.
(6) There is a clear distinction between tax directly on land and tax on income arising from land.
[708C] Raja Jagannath Baksh Singh vs The State of U.P. & Anr.
, ; , referred to.
695 (7) Explanation to section 115(1) itself makes a dis tinction between land revenue as such and royalty which by amendment is deemed to be land revenue.
It is, therefore, recognised by the very force of that explanation and the amendment thereto that the expression 'royalty ' in sections 115 & 116 of the Act cannot mean land revenue property called or conventionally known, which is separate and dis tinct from royalty.
[707D E] (8) In the instant case, cess is not on land, but on royalty, which is included in the definition of 'land reve nue ', None of the three lists of the 7th Schedule of the Constitution permits or authorises a State to impose tax on royalty.
(9) Royalty which is indirectly connected with land, cannot be said to be a tax directly on land as a unit.
Royalty is payable on a proportion of the mineral extracted.
The Act does not use dead rent as a basis on which land is to be valued.
Hence, there cannot be any doubt that the impugned legislation in its pith and substance is a tax on royalty and not a tax on land.
[709E] New Manek Chand Spinning & Weaving Mills Co. Ltd. & Ors.
vs Municipal Corporation of the City of Allahabad & Ors.
, ; ; S.C. Nawn vs W.T.O. Calcutta & Ors., ; ; Asstt.
Commissioner of Urban Land Tax & Ors.
vs The Buckingham & Carnatic Co. Ltd. etc.; , ; Second Gift 'Fax Officer, Mangalore etc.
vs D.H. Nazareth etc.
; , ; Bhagwan Dass Jain vs Union of India, ; and The Western India Theatres Ltd. vs The Cantonment Board, Poona Cantonment, ; , referred to.
(10) Royalty is directly relatable only to the minerals extracted and on the principle that the general provision is excluded by the special one, royalty would be relatable to entries 23 & 50 of List II, and not entry 49 of List II.
[713D] (11) Royalty is a tax, and as such a cess on royalty being a tax on royalty, is beyond the competence of the State Legislature because section 9 of the Central Act covers the field and the State Legislature is denuded of its competence under entry 23 of List II.
In any event, cess on royalty cannot be sustained under entry 49 of List II as being a tax on land.
Royalty on mineral rights is not a tax on land but a payment for the user of land.
[713F G] 696 Waverly Jute Mills Co. Ltd. vs Raymon & Co. (1) Pvt. Ltd.; , ; Anant Mills Co. Ltd. vs State of Gujarat & Ors., ; The Hingir Rampur Coal Co. Ltd. & Ors.
vs The State of Orissa & Ors., ; ; State of Orissa vs M.A. Tulloch & Co., ; ; Baijnath Kedia vs State of Bihar & Ors., ; M/s. Laxminarayana Mining Co. Bangalore vs Taluk Dev Board, AIR ; M. Lal & Ors.
vs The State of Bihar & Ors.
, AIR 1965 Patna 491; Bherulal vs State of Rajasthan, AIR ; Dr. S.S. Sharma & Anr.
vs State of Punjab & Ors., AIR ; Saurashtra Cement & Chemi cals India Ltd. vs Union of India & Anr., ; L.N. Agarwalla & Ors.
vs State of Orissa, AIR 1983 Orissa 210 and M/s Hira lal Rameshwar Prasad & Ors.
vs The State of Madhya Pradesh & Ors., M.P. High Court Misc.
Petition No. 410/83, referred to.
H.R.S. Murthy vs Collector of Chittoor & Anr., ; , overruled.
(12) The amounts of cess have been collected on the basis of the decision of this Court in H.R.S. Murthy 's case.
The Court is therefore justified in declaring the levy of the said cess under section 115 to be ultra vires the power of the State legislature prospectively only.
The respondents will not be liable for any refund of cess already paid or collected.
[714C D & E] Per G.L. Oza, J. (1) Sub clause (1) of Section 115 provides for levy of 45 naya paise for every rupee of land revenue payable to the Government.
In the explanation a fiction is created whereby even the royalty payable has been included within the defi nition of 'land revenue '.
[718A] (2) The language of Entries 23 and 50 in List II clearly subjects the authority or jurisdiction on the State Legisla ture to any enactment made by the Parliament.
Entry 23 talks of regulation and Entry 50 talks of taxes on mineral rights.
It therefore could not be disputed that if the cess imposed under section 115 of the Madras Panchayats Act is a cess or tax on mineral rights then that jurisdiction could be exer cised by the State Legislature subject to the law enacted by the Parliament.
[715D E] (3) Unit of charge of royalty is not only land but land + labour + capital.
It is therefore clear that if royalty is a tax or an imposition or a levy, it is not on land alone but it is a levy or a tax on mineral (land), 697 labour and capital employed in extraction of the mineral.
It therefore is clear that royalty if it is imposed by the Parliament it could only be a tax not only on land but on the three things stated above.
[718H; 719A] (4) When the Legislature included royalty, it went beyond its jurisdiction under Entry 49 of List II and there fore clearly is without the authority of law.
[719D] (5) This may lead to an interesting situation.
As this cess on royalty is without the authority, the result will be that the cess is levied so far as lands other than the lands in which mines are situated are concerned but lands where mines are situated this levy of cess is not in accordance with the law.
This anamoly could have been averted if the Legislature had used words 'surface rent ' in place of royal ty.
Even if the lands where mines are situated and which are subject to licence and mining leases, even for those lands there is a charge on the basis of the surface of the land which is Sometimes described as surface rent or sometimes also as 'dead rent '.
[719E F] |
This Criminal Petition, under Section 439 of the Code of
Criminal Procedure, 1973, is filed to enlarge the petitioner on
2. Heard learned counsel for the petitioner and learned
Additional Public Prosecutor for the respondent-State.
3. The petitioner is A-1 in Sessions Case No.359 of 2017 on
the file of the learned IV Additional District and Sessions Judge
– cum – Special Judge for Trial of Offences against Women,
Anantapur. This is a case arising out of Crime No.78 of 2013 on
the file of Mahila Police Station, Anantapur, Anantapur District.
4. A case under Sections 498-A and 307 read with 34 of the
Indian Penal Code, 1860 (for short “I.P.C.”) was registered
against the petitioner in the above crime. He was arrested in
connection with the above crime and subsequently, he was
enlarged on bail. He was directed to appear before the trial
Court after receipt of summons after filing the charge sheet. It
appears that summons were issued to the petitioner for his
appearance in the trial Court after charge sheet was filed.
However, on the ground that the petitioner did not turn up for
trial, non-bailable warrant was issued against him. As the
N.B.W. could not be executed as the petitioner was not found at
the address given by him at the time of granting bail,
proclamation was ordered under Section 82 Cr.P.C. Thereafter,
the N.B.W. was executed and the petitioner was arrested on
04.02.2022 and he was produced before the trial Court and
remanded to judicial custody on 05.02.2022. Since then, he
has been in judicial custody.
5. Learned counsel for the petitioner would submit that at
the time of arrest, the petitioner was residing in Anantapur and
thereafter, he has shifted his residence to Nellore and he has
been residing in Nellore. Therefore, the summons that were
issued by the trial Court are not served on him and he has no
knowledge regarding the adjournments or dates given for his
appearance in the said case by the trial Court and as such, he
could not appear before the trial Court. Therefore, he would
submit that the absence of the petitioner before the trial Court
is not deliberate or willful and it is only on account of the
aforesaid reasons that he could not appear before the trial
Court. Therefore, he prayed for grant of bail.
6. Learned Additional Public Prosecutor opposed the
Criminal Petition. He would submit that the petitioner did not
inform regarding change of address to the police to enable them
to serve summons on him at the place where he is now residing.
He further submits that the trial Court also, while observing
that he failed to inform his change of address to the police, held
that he is not entitled to bail. Therefore, he would pray for
dismissal of the Criminal Petition.
7. The fact that the petitioner has shifted his residence from
Anantapur to Nellore is not in dispute. Similarly, summons
issued by the trial Court were not served on him is also not in
dispute. Therefore, the petitioner has no knowledge regarding
the fact that the charge sheet was filed against him and that
summons were issued to him. Therefore, as rightly contended
by the learned counsel for the petitioner, the absence of the
petitioner is not deliberate or willful. It is only on account of the
aforesaid reason that is explained by the petitioner that he could
not appear before the trial Court. The petitioner is now a
permanent resident of Nellore District and he undertakes to
appear before the trial Court as and when directed till the trial
of the case is completed and case is disposed of. Therefore, in
the said facts and circumstances of the case, this Court is of the
considered view that the petitioner is entitled to be enlarged on
bail and more particularly, as he has been languishing in jail for
more than one month period i.e., from 05.02.2022.
8. Resultantly, this Criminal Petition is allowed. The
petitioner/A-1 is ordered to be enlarged on bail on execution of
self bond for Rs.50,000/- (Rupees fifty thousand only) with two
sureties for a likesum each to the satisfaction of the learned IV
Additional District and Sessions Judge – cum – Special Judge
for Trial of Offences against Women, Anantapur, Anantapur
District. On his release, the petitioner shall appear before the
trial Court and co-operate for completion of trial in the said | The Andhra Pradesh High Court recently granted bail to an accused on whom the non-bailable warrant was issued due to his absence during issue of summons. The court observed that the accused had no knowledge of the summons as he had changed his residence and therefore could not appear on the dates before the trial Court. The criminal Petition was filed under Section 439 of the Code...
The Andhra Pradesh High Court recently granted bail to an accused on whom the non-bailable warrant was issued due to his absence during issue of summons. The court observed that the accused had no knowledge of the summons as he had changed his residence and therefore could not appear on the dates before the trial Court.
The criminal Petition was filed under Section 439 of the Code of Criminal Procedure to enlarge the Petitioner on bail.
The Petitioner was accused in a crime under Sections 498A and 307 of Indian Penal Code dealing with punishment for husband or relative of husband of a woman for subjecting her to cruelty and attempt to murder respectively. He was arrested and subsequently granted bail. He was directed to appear before the trial Court after receipt of summons after filing the charge sheet.
It appeared that summons were issued to the petitioner for his appearance but the petitioner did not turn up for trial. A non-bailable warrant was thus issued against him. The warrant could not be executed as the petitioner was not found at address given by him at the time of granting bail, proclamation was ordered under Section 82 CrPC. Thereafter, the warrant was executed and the petitioner was arrested and produced before the trial Court and remanded to judicial custody.
The counsel for petitioner submitted that at the time of arrest, the petitioner was residing in Anantapur and thereafter, he had shifted to Nellore. Therefore, the summons that were issued by the trial Court were not served on him and he had no knowledge about the dates given for his appearance and as such he could not appear before the trial Court.
The Additional Public Prosecutor opposed the Criminal Petition and submitted that the petitioner did not inform regarding change of address to the police to enable them to serve summons.
The court observed that it was not in dispute that summons was not served on petitioner as he had shifted his residence. On this account, the petitioner could not appear before the Court and his absence was not deliberate or willful. The petitioner also gave the undertaking that he would appear before the trial Court as and when directed.
Resultantly, the Criminal Petition was allowed and he was granted bail.
Case Title: Dommeti Chakradhar Versus The State of Andhra Pradesh
Coram: Justice Cheekati Manavendranath Roy |
1. This is an application filed under Section 482 CrPC with a prayer to
set aside and quash the FIR registered as Laban P. S Case No 102(11) of 2021
under Section 5(j)(ii)/6 of the POCSO Act, 2012 and the consequent
proceedings in Special POCSO Case No. 28 of 2022 pending before the learned
Special Judge (POCSO) at Shillong.
2. Heard Ms. S. A. Pandit, learned counsel for the petitioners who has
submitted that the petitioner No. 1 and the petitioner No. 2 have known each
other since the month of January, 2021 and have developed mutual love for
each other. They have also got into a physical relationship in course of their
3. In the month of April, 2021, the petitioner No 2 realised that she is
pregnant and she accordingly informed the petitioner No 1. Thereafter, the
petitioner No. 1 came and started living together with the petitioner No. 2 and
since then they cohabited as husband and wife.
4. On 21.11.2021, the petitioner No. 2 felt some pregnancy contractions
and was taken to the Ganesh Das Hospital, Shillong by the petitioner No. 1 for
medical check-up. At the hospital, she has given her age as 17 years. On the
basis of this information, the hospital staff accordingly informed the police. The
petitioner No. 2 however, was subsequently admitted to Robert Hospital,
Shillong where she gave birth to a baby girl on 23.11.2021.
5. In the meantime, the police on receipt of the said information from
Ganesh Das Hospital, has treated the same as an FIR and caused registration of
Laban P. S Case No. 102(11) of 2021 under Section 5(j)(ii)/6 of the POCSO
6. On investigation being conducted, the Investigating Officer have
eventually filed the charge sheet on 23.01.2022 implicating the petitioner No. 1
as the accused who is to face trial before the competent court, a regular case
was registered as Special POCSO Case No. 28 of 2022 and the matter was taken
up by the learned Special Judge (POCSO), Shillong.
7. The petitioner No. 1 was never arrested during the period of
investigation as the petitioner No. 2 in her statement before the police have
stated that she is in a relationship with the petitioner No. 1 and that they are now
staying together after she gave birth to a baby girl on 23-11-2021 and if the
petitioner No. 1 is arrested, then there will be no one to look after the family.
8. The petitioner No. 1 has been summoned to enter appearance before
the Trial Court and the matter is at the stage of consideration of charges.
9. Being highly aggrieved by the proceedings initiated against the
petitioner No. 1 before the court of the learned Special Judge (POCSO),
Shillong, the petitioners as stated above have approached this Court with a
prayer to set aside the FIR and the related POCSO case wherein the petitioner
No. 1 has been named as the accused.
10. Heard Ms. S. A. Pandit, learned counsel for the petitioners who has
submitted that admittedly the petitioner No. 2 was about 17 years of age when
she cohabitated with the petitioner No. 1 and at the time when she gave birth to
her child she was also above 17 years but less than 18 years of age. However,
the fact that the relationship between the alleged victim and the accused has
been established to be that of husband and wife, the sexual relationship between
the two is one of consensual and not forced and in fact, cannot be considered to
be a case of sexual assault.
11. The fact that the petitioner No. 2 has by now attained the age of
majority on 25-05-2022 and, as such, can be considered to be legally living
together with petitioner No. 1 as husband and wife is also one of the contentions
raised by the learned counsel for the petitioners.
12. The union between the petitioners herein as husband and wife have
also been blessed by the family members of both sides, therefore, continuation
of the said proceedings would not be for ends of justice. It is prayed that this
petition would be allowed and that the related FIR and criminal case against the
petitioner No. 1 be set aside and quashed.
13. Mr. K. P. Bhattacharjee, learned GA for the State-respondent has not
made any strong objection to the prayer of the petitioners herein, but has only
submitted that since the case before the Trial Court against the petitioner No. 1
is at the stage of consideration of charges, it may not be prudent for this Court
to curtail the proceedings at this juncture.
14. Upon hearing the learned counsels this Court has given due
consideration to the submission made and has also produced the petition in
15. Facts as indicated above need not be mentioned again, suffice it to say
that the prayer of the petitioners has to be considered while looking into the
related provisions of the POCSO Act. However, on an overall assessment of
the fact situation, this Court is of the view that an exercise of power under
Section 482 CrPC to ensure that real and actual justice is done cannot be
curtailed by the strict interpretation or application of the related provisions of
16. This Court in the case of Skhemborlang Suting & Anr. v. State of
Meghalaya & Anr. at para 7 has observed as follows:-
“7. Though, the POCSO Act has been rightly enacted to safeguard
children from sexual exploitation, but in the peculiar facts and
circumstances of the case of the petitioners herein, the rigors of the
said Act may not be applied to their case and the converse would only
result in the breakdown of a happy family relationship and the possible
consequence of the wife having to take care of a baby with no support,
physically or financially from her husband who may be languishing in
jail.”
17. The observation of the Hon’ble Calcutta High Court at para 47, 48 and
49 in the case of Ranjit Rajbanshi v. State of West Bengal & Ors. C.R.A No.
458 of 2018, has also been found relevant by this Court when it was observed
“47. In the present case, the victim girl was admittedly 16 ½ years old
and studied in Class XII at the relevant point of time. She was not naïve
enough not to know the implication of sexual intercourse; rather, the
victim admittedly had a physical relationship with the accused, who
was also of a very young age, on several occasions prior to the incident.
Although the consent of a minor is not a good consent in law, and
cannot be taken into account as 'consent' as such, the expression
'penetration' as envisaged in the POCSO Act has to be taken to mean
a positive, unilateral act on the part of the accused. Consensual
participatory intercourse, in view of the passion involved, need not
always make penetration, by itself, an unilateral positive act of the
accused but might also be a union between two persons out of their
own volition. In the latter case, the expression 'penetrates', in Section
3(a) of the POCSO Act might not always connote mere voluntary
juxtaposition of the sexual organs of two persons of different genders.
If the union is participatory in nature, there is no reason to indict only
the male just because of the peculiar nature of anatomy of the sexual
organs of different genders. The psyche of the parties and the maturity
level of the victim are also relevant factors to be taken into
consideration to decide whether the penetration was a unilateral and
positive act on the part of the male. Hence, seen in proper perspective,
the act alleged, even if proved, could not tantamount to penetration
sufficient to attract Section 3 of the POCSO Act, keeping in view the
admitted several prior occasions of physical union between the
accused and the victim and the maturity of the victim.
48. As such, it cannot be said that the accused was guilty of penetrative
sexual assault, as such, since here the act of penetration, even if true,
would have to be taken not as an unilateral act of the accused but a
participatory moment of passion involving the participation of both the
victim and the accused.
49. Although the question of consent does not arise in case of a minor,
in order to attract Section 376(1) of the IPC, it had to be established
that the alleged offence was committed against the will of the victim.
Read in conjunction, the provisions of Section 376 of the IPC 7 and
Section 3 of the POCSO Act ought to be construed on a similar footing
and cannot incriminate the accused for a voluntary joint act of sexual
union.”
18. As has been observed above, this Court for securing ends of justice
would not be found wanting if under the peculiar facts and circumstances and
if there is no drastic impact on the societal balance, the case of the parties be
required to be looked at sympathetically.
19. The present position being that the petitioners, particularly the
petitioner No. 2 being of legal marriageable age and said to be living a married
life with petitioner No. 1 along with their new born child, continuation of the
criminal proceedings against the petitioner No. 1 would indeed serve no
purpose for all concerned.
20. Accordingly, the prayer of the petitioners herein finds merit with this
Court and the same is allowed.
21. The FIR registered as Laban P. S Case No. 102(11) of 2021 under
Section 5(j)(ii)/6 of the POCSO Act, 2012 and the consequent proceedings in
Special POCSO Case No. 28 of 2022 pending before the learned Special Judge
(POCSO) at Shillong, are hereby set aside and quashed.
22. Petition disposed of. No costs. | The Meghalaya High Court, while quashing a POCSO FIR against a minor's partner, reiterated that rigors of the Act may not be applied to break down a happy family relationship. Such cases must be decided by taking a sympathetic view towards the accused, who is in a consensual relationship with the minor, in the instant case almost 18 years of age.The observation came from Justice W. Diengdoh...
The Meghalaya High Court, while quashing a POCSO FIR against a minor's partner, reiterated that rigors of the Act may not be applied to break down a happy family relationship. Such cases must be decided by taking a sympathetic view towards the accused, who is in a consensual relationship with the minor, in the instant case almost 18 years of age.
The observation came from Justice W. Diengdoh while disposing of the plea preferred by the POCSO accused and his child-bearing minor partner. The couple had been living together like husband and wife.
The accused was booked after the minor was admitted to the hospital in connection with her pregnancy and was found to be aged 17 years.
The matter was reported to the local Police which swung in action and registered a case under Section 5(j)(ii)/6 of the POCSO Act, 2012.
Though the Petitioner was not arrested during investigation, keeping in mind that there will be no one to look after the family, he was summoned to appear before the Trial Court at the stage of consideration of charges.
The minor submitted that their union was blessed by the family members of both sides and therefore, continuation of the criminal proceedings would not be for ends of justice.
The State also did not make any strong objection to the prayer of the petitioners.
"On an overall assessment of the fact situation, this Court is of the view that an exercise of power under Section 482 CrPC to ensure that real and actual justice is done cannot be curtailed by the strict interpretation or application of the related provisions of law...The present position being that the petitioners, particularly the petitioner No. 2 being of legal marriageable age and said to be living a married life with petitioner No. 1 along with their new born child, continuation of the criminal proceedings against the petitioner No. 1 would indeed serve no purpose for all concerned," the Court said.
Reliance was placed on Skhemborlang Suting & Anr. v. State of Meghalaya & Anr. where the High Court quashed FIR and criminal proceedings in a POCSO case registered against a man as it noted that the accused man and victim-wife were living with each other as husband and wife and out of the said union, a child was born.
In view of the above, FIR against petitioner no. 1 was quashed.
Case Title: Shri. Adelbert Marbaniang & Anr. Vs. State of Meghalaya & Ors. |
This petition is filed by the petitioners/accused
Nos.1 to 4 under Section 482 of Cr.P.C. for quashing
the FIR in Cr.No.157/2020 registered by the
Ramamurthy Nagar Police Station for the offences
punishable under Section 420, 506 read with Section
34 of IPC.
2. Heard the learned counsel for the petitioners
and learned HCGP for respondent No.1-State.
Respondent No.2 served and unrepresented.
3. The case of the prosecution is that on the
complaint of respondent No.2, the Police registered a
case on 03.05.2020 wherein, it is alleged that the
about 8 years back she came to know petitioner No.1
and both of them fell in love with each other and
petitioner No.1 agreed to marry her. Subsequently, he
left her and said to have married some other lady as
his family members supported his marriage with some
other lady. Therefore, she filed a complaint against
petitioner No.1 and his other family members for
having cheated her.
4. Learned counsel for the petitioners
contended that mere promise of marriage and not
marrying her cannot be said to be a cheating as per the
provision of Section 415 of IPC. Absolutely there is no
ingredient for invoking the said section. After the filing
of the case in May-2020, absolutely there no
investigation by the Police in spite of the petitioners
appearing before the Police after obtaining the bail and
there is no progress. Respondent No.2 has filed the
complaint only to harass the petitioners. Hence, prayed
for quashing the FIR.
5. Per contra, learned High Court Government
Pleader objected the same.
6. Having heard the arguments and perused
the records, admittedly respondent No.2 filed complaint
stating that accused No.1/petitioner No.1 fell in love
with her and he has promised to marry her.
Subsequently, he failed to marry her and he married
somebody else and other petitioners said to have
helped petitioner No.1 to marry some other lady. A
plain reading of the complaint would reveal that it does
not attract any ingredient of Section 415 of IPC in order
to show that the accused persons have committed the
offence under Section 420 of IPC and also she has just
stated that the accused have also threatened her in
order to attract Section 506 of IPC. Absolutely there is
no ingredient stated by her in order to show that there
is a criminal intention of cheating by petitioner No.1
and thereby, he has promised to marry her but has
broken his promise.
7. Learned counsel for the petitioners relied
upon a Single Bench judgment of the High Court of
Judicature at Madras, in the case of K.U.Prabhu Raj
Vs. State by Sub Inspector of Police, A.W.P.S.
Tambaram and another reported in 2012-3-
L.W.770 wherein, the Court has held at paragraphs 16
"16. A cursory perusal of the above provision
would make it clear that there are atleast three
essential ingredients constituting an offence of
cheating which should be made out from the
materials available on record. They are as follows:-
'(1) Deception of any person;
(2) Fraudulently or dishonestly inducing that
(i) To deliver any property to any person or;
(ii) To consent that any person shall retain
(3) Intentionally inducing that person to do
or omit to do anything which he would not do or
omit if he were not so deceived, and which act or
omission causes or is likely to cause damage or
harm to that person in body, mind, reputation or
17. The learned counsel for the second
respondent would further submit that the offence
involved in this case falls within the ambit of the
third limb of Section 415 I.P.C as enumerated
above. According to the learned counsel, but for
the promise made by the petitioner, the daughter
of the second respondent would have married
someone-else and settled down in her life. Thus,
according to him, the petitioner has committed a
clear offence of cheating. In my considered
opinion, it is not so. As has been held by the
Division Bench of the Calcutta High Court in Abhoy
Pradhan v. State of W.B case (cited supra), mere
promise to marry and later on withdrawing the said
promise will not amount to an offence of cheating
at all. On such false promise to marry, the person
to whom such promise was made should have done
or omitted to do something that he would not done
or omitted to do but for the deception. In this case,
absolutely, there are no materials available on
record to show that because of the promise made
by the petitioner, the daughter of the second
respondent has done anything or omitted to do
something which has the tendency to cause
damage or harm to the body or mind or reputation
or property of the daughter of the second
respondent. In the absence of the same, the entire
allegations found in the records, in my considered
opinion, would not make out an offence under
Section 417 or 420 I.P.C., at all."
8. The Hon'ble Supreme Court also has
categorically held in the case of S.W.PALANITKAR
reported in (2002) 1 SCC 241 at paragraph No.11
that mere breach of contract cannot give rise to any
criminal prosecution for cheating unless fraudulent or
dishonest intention is shown right at the beginning of
the transaction and the time when the offence is said to
have been committed. Here in this case, petitioner
No.1 is said to have promised to marry respondent
No.2, but failed to marry her. In view of the judgment
of the Hon'ble Supreme Court, respondent No.2 has
failed to make out a case of criminal intention of
petitioner No.1 from the beginning for cheating the
complainant. That apart, the aforesaid judgment of
High Court of judicature at Madras is applicable to the
case where the promise of marriage will not attract
Section 420 of IPC. This Court has held in
Crl.R.P.No.233/2020 dated 24.02.2020 in the case of
Sri.D.Ramesh Sinha Vs. State of Karnataka that as a
promise of marriage and breach of contract will not
attract the provisions of Sections 417 and 420 of IPC.
Such being the case, continuing the proceedings or
investigation against the petitioners is abuse of process
of law and therefore, the same is liable to be quashed.
Accordingly, I pass the following;
The petition is allowed.
The investigation against this
petitioner in Cr.No.157/2020 registered by
the Ramamurthy Nagar Police Station is
hereby quashed. | The Karnataka High Court while quashing the FIR registered against a man and his family has reiterated that not abiding with the promise of marriage will not amount to the offence of cheating under section 420 of the Indian Penal Code. A single-judge bench of Justice K Natarajan while allowing the petition filed by Venkatesh and others said "Absolutely there is no...
The Karnataka High Court while quashing the FIR registered against a man and his family has reiterated that not abiding with the promise of marriage will not amount to the offence of cheating under section 420 of the Indian Penal Code.
A single-judge bench of Justice K Natarajan while allowing the petition filed by Venkatesh and others said "Absolutely there is no ingredient stated by her in order to show that there is a criminal intention of cheating by petitioner No.1 and thereby, he has promised to marry her but has broken his promise."
The complainant had lodged a complaint on May 3, 2020, with the Ramamurthy Nagar police station under section 420, 506 read with section 34 of the Indian Penal Code against the accused. It was alleged that the complainant and the man were in a relationship and that he had promised to marry her. Subsequently, he left her and said to have married some other lady.
Advocate N S Sriraj Gowda appearing for the petitioners had argued "Mere promise of marriage and not marrying her cannot be said to be cheating as per the provision of Section 415 of IPC. Further, there is no ingredient for invoking the said section. Moreover, after the filing of the case in May-2020, absolutely no investigation by the Police in spite of the petitioners appearing before the Police after obtaining the bail and there is no progress. The complaint is filed only to harass the petitioners.
Court findings:
The court on going through the complaint noted "Admittedly respondent No.2 filed a complaint stating that accused No.1/petitioner No.1 fell in love with her and he has promised to marry her. Subsequently, he failed to marry her and he married somebody else and other petitioners said to have helped petitioner No.1 to marry some other lady."
It added "A plain reading of the complaint would reveal that it does not attract any ingredient of Section 415 of IPC in order to show that the accused persons have committed the offence under Section 420 of IPC and also she has just stated that the accused have also threatened her in order to attract Section 506 of IPC."
The court relied on Madras High Court Judgement in the case of K.U.Prabhu Raj Vs. State by Sub Inspector of Police, A.W.P.S. Tambaram and another reported in 2012-3-L.W.770 and also the Supreme Court judgement in the case of S.W.PALANITKAR AND OTHERS VS. STATE OF BIHAR AND ANOTHER reported in (2002) 1 SCC 241, wherein it was held that "Mere breach of contract cannot give rise to any criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction and the time when the offence is said to have been committed."
Following which the court said "In view of the judgement of the Hon'ble Supreme Court, respondent No.2 has failed to make out a case of criminal intention of petitioner No.1 from the beginning for cheating the complainant. That apart, the aforesaid judgement of the High Court of judicature at Madras is applicable to the case where the promise of marriage will not attract Section 420 of IPC."
Accordingly, it held "Such being the case, continuing the proceedings or investigation against the petitioners is abuse of process of law and therefore, the same is liable to be quashed."
Case Title: Venkatesh And State of Karnataka
Case No: Criminal Petition No 5865/2021
Date of Order: January 13, 2022
Appearance: Advocate N S Siriraj Gowda for M/s Poovayya And Co
Advocate Mahesh Shetty for R1 |
Heard on : 07.01.2022, 27.01.2022, 04.02.2022, 16.02.2022 & 24.02.2022
The appellant has assailed the judgment and order dated 30th March,
2016 and 31st March, 2016 passed by the learned Additional Sessions Judge,
4th Court, Malda, in Sessions Case No. 216 of 2015 corresponding to
Sessions Trial Case No. 55(5) of 2015 arising out of Baisnabnagar Police
Station Case No. 435 of 2014 dated 05.11.2014 convicting the appellant for
commission of offence punishable under Sections 489B/489C of the Indian
Penal Code and sentencing him to suffer rigorous imprisonment for ten years
and to pay fine of Rs.5,000/-, in default, to suffer rigorous imprisonment for
six months more for the offence punishable under Section 489B of the Indian
Penal Code and to suffer rigorous imprisonment for seven years and to pay
fine of Rs.5,000/-, in default, to suffer rigorous imprisonment for six months
more for the offence punishable under Section 489C of the Indian Penal Code;
both the sentences to run concurrently.
The prosecution case as alleged against the appellant is to the effect
that on 4th November, 2014, Md. Shakur, S.I. of BSF at Baisnabnagar Police
Station (P.W. 1) received secret information that two persons are going from
Malda to NTPC with fake Indian currency notes. He along with others went to
the local police station and with police force proceeded towards the Township
More. At that spot, they found two persons sitting in a tailor shop. Upon
search, eight bundles of currency notes suspected to be fake in denomination
of Rs.1000/- (each bundle containing 800 pieces) valued at 8 lakhs wrapped
in a coffee colour cloth bag was recovered from the appellant, Habibur
Rahaman and two bundles of fake Indian currency notes in denomination of
Rs.1,000/- and Rs. 500/- (one bundle containing 176 pieces and another
containing 48 pieces respectively) valued at Rs. 2 lakhs was recovered from
his nephew, Nasiruddin Sheikh, who was a juvenile at the time of occurrence.
Other articles including genuine currency notes were also recovered.
Suspected currency notes were seized under a seizure list and the aforesaid
miscreants were arrested. P.W. 1 lodged written complaint at the police
station resulting in registration of Baisnabnagar Police Station Case No. 435
of 2014 dated 05.11.2014 under Sections 489B/489C/120B of the Indian
Penal Code. Seized notes were sent for examination and upon receipt of the
report from the expert (Exhibit 3) charge-sheet was filed against the appellant
and the juvenile. Case of the juvenile was sent to the Juvenile Justice Board
while the appellant was tried in regular court. Charges under Sections
489B/489C were framed against the appellant. He pleaded not guilty and
claimed to be tried. In the course of trial, prosecution examined nine
witnesses and exhibited a number of documents. Defence of the appellant
was one of innocence and false implication. In conclusion of trial, learned trial
Judge by the impugned judgement and order dated 30th March, 2016 and
31st March, 2016 convicted and sentenced the appellant, as aforesaid.
Mr. Wilson, learned Counsel appearing for the appellant submits that
prosecution case is out and out false. Independent witnesses have not
supported the case. On the other hand, version of official witnesses are at
variance to one another. While in F.I.R. it was stated that appellants were
standing near a tailor shop at Township More, P.W. 1 in court stated that
they were sitting in the tailor shop. P.W. 7 stated that the accused persons
were found loitering at PTS More. P.W. 1 claimed that the operation took
place between 7 p.m. to 11 p.m. but P.W. 5 stated they reached the spot at 8
p.m. It is also submitted that all incriminating circumstances had not been
put to the accused persons during their examination under Section 313 of the
Code of Criminal Procedure. It is also submitted that there is no evidence
with regard to use of currency notes. Hence, conviction under Section 489B is
unfounded. He prays for acquittal of the appellant.
On the other hand, Mr. Chakraborty, learned Counsel appearing for the
State submits that the prosecution evidence has clearly established the
ingredients of the alleged offences. Appellant along with juvenile was
apprehended with a large volume of FICNs in public place. They could not
give any explanation with regard to carrying such counterfeit notes. Hence,
ingredients of the offence under Sections 489B and 489C have been proved.
Charge under Section 489B was framed with regard to “trafficking in
currency notes” and therefore the appellant was put on notice with regard to
the accusation of transportation of fake Indian currency notes. Independent
witnesses had been won over and, therefore, did not support the prosecution
case. Variation in the deposition of the official witnesses are minor and do not
go to the root of the prosecution case.
P.W. 1, Md. Shakur, is the informant and leader of the raiding party.
He deposed in the evening at 6p.m. he received a secret information that two
persons are going from Malda to NTPC and carrying fake currency notes. He
along with Ajit and another constable at first went to local police station and
then took police force from local police station and went to Township More.
They found two persons were sitting in a tailor shop and they searched them.
Upon search, they recovered counterfeit notes valued at Rs. 8 lakhs from the
appellant and Rs. 2 lakhs from Nasiruddin Sheikh, who is the nephew of the
appellant. Other articles were also recovered. Seizure list was prepared.
Number of counterfeit notes were noted down in the seizure list. Accused
persons were apprehended and were taken to the police station along with the
seized articles. He prepared written complaint and lodged it at the local police
station. He identified the seized counterfeit notes in court as material Exhibits
I and II.
P.Ws. 2, 3 and 5 are the constables attached to BSF at Baisnabnagar
16 Mile. They accompanied P.W. 1 to the raid. They have substantially
corroborated the evidence of P.W. 1.
P.W. 7, Koushik Sarkar is an ASI attached to Malda PS. He deposed he
along with constable Akhtar Hossain went to PTS More and was instructed to
keep in touch with BSF personnel. After reaching there, he found two
suspected persons loitering. BSF personnel apprehended them and recovered
counterfeit currency notes to the tune of Rs. 10 lakhs. He stated that local
persons signed on the seizure list. He identified the accused persons in Court.
Mr. Wilson, learned lawyer appearing for the appellant argues that
there are grave contradictions in the evidence of the official witnesses. P.W. 1
stated the accused persons were sitting in a tailor shop at township more
where they were searched but P.W. 7 deposed they were found loitering near
PTS More and were searched. It is also submitted there is variation with
regard to time when the search operation commenced.
I have examined evidence of the witnesses in the light of the aforesaid
submission. All the witnesses stated seizure list was prepared at the spot.
They had also signed on the seizure list. In the seizure list place of seizure
has been described as “township area” approximately 1.6 km from BNHQ and
2.5 km from Baishnabnagar. Investigating officer P.W. 9 has prepared rough
sketch map of the place of occurrence wherefrom it appears that the place of
occurrence was at the Township More and western side of the Township More
is noted as PTS side.
From the aforesaid materials on record it appears that the description
of the place of occurrence by P.W. 7 as PTS More is a loose and casual one.
Incident occurred at Township More which was noted in the seizure list
contemporaneously prepared by P.W. 1. Contents of the seizure list have not
been challenged. On the other hand, P.W. 1 and other witnesses have clearly
proved the place of occurrence as Township More. Version of P.W. 7 with
regard to place of occurrence is, therefore, to be assessed in the backdrop of
other evidence on record. As appearing from the sketch map, western side of
Township is described as PTS area, hence, P.W. 7 may have loosely described
the place of occurrence as PTS More. Version of P.W. 7 with regard to place of
occurrence is clearly reconciliable with regard with other evidence on record
and does not affect the credibility of the prosecution case.
P.W. 1 stated he received secret information with regard to two persons
carrying counterfeit currency notes from Malda to NTPC at 6 p.m. and
proceeded to work out the information. He went to the local police station and
obtained police assistance. Then he proceeded to Township More and
apprehended the accused persons. Entire operation continued from 7 p.m to
11p.m. But P.W. 5 claimed they conducted raid at 8.10 p.m. This minor
variation with regard to time of commencement of raid is of little consequence
when the witnesses are ad idem on the search and seizure of FICNs from the
appellant. Thus, I am of the view the evidence of the official witnesses have
proved the prosecution case.
It is contended independent witnesses P.Ws. 4 and 8 have not
supported the case. Both of them appear to have been won over and stated in
a parrot-like manner they had signed the seizure list in the police station.
Falsehood in their deposition was clearly exposed when they were confronted
with their earlier statements to the police. P.W. 7 categorically stated that the
local witnesses had signed the seizure list at the place of occurrence.
It is settled law if the evidence of the official witnesses are clear,
convincing and inspire confidence, lack of support from the independent
witnesses who have been won over and had turned hostile would not make a
dent in the prosecution case. Hence, I am of the opinion, seizure of
counterfeit notes suspected to be forged valued at Rs. 8 laks from the
appellant and Rs. 2 lakh from the juvenile accused has been proved.
P.Ws. 9 and 10 are the investigating officers of the case. PW 9 was the
first investigating officer. He visited the place of occurrence and prepared
rough sketch map with index Exhibit 5 and 5/1. He took steps to send the
FICN at Salboni Mint for examination. Thereafter he handed over the case to
P.W. 8 collected the report from Salboni Mint and submitted charge
sheet. Report from Salboni Mint has been proved as Exhibit 3. Evidence of
the investigating officers clearly establish the chain of custody between the
counterfeit currency notes which were seized from the possession of the
appellant and those examined at Salboni Mint. Exhibit 3 proves the seized
notes are counterfeit.
Lastly, it is argued ingredients of offence under section 489B IPC have
not been proved. Prosecution evidence clearly shows that the appellant and
the co-accused was apprehended in front of a tailor shop while carry
counterfeit currency notes totaling to Rs 10 lakhs.
When the appellant was found carrying a large volume of FICNs in a
public place and he is unable to give any explanation for the said possession,
one can safely held the appellant was knowingly trafficking in counterfeit
currency notes. Section 489B of the Indian Penal Code makes selling, buying,
receiving or trafficking in counterfeit currency notes culpable. In this regard,
it may be apposite to refer to the charge framed against the appellant under
section 489B of the Indian Penal Code which reads as follows:-
“that you on 4.11.2014 at township More on NH 34, under Baisnabnagar
PS Dist Malda attempted to use/traffic forged or counterfeit Indian
currency notes of Rs. 9,76,000/- of denomination of Rs. 1,000/- each
(976 pieces) and Rs. 24,000/- of denomination of Rs. 500/- each (48
pieces) and totaling Rs 10,00,000/- knowing the same to be counterfeit
and as per seizure list dated 4.11.2014, a copy of which was served to
you, knowing the same to be forged or counterfeit.”
Plain reading of the aforesaid charge shows the prosecution had put the
appellant on notice that he was being accused of “attempt to sell/trafficking”
in counterfeit notes. As discussed above, evidence on record unequivocally
shows the appellant and co-accused were apprehended while carrying a large
volume of counterfeit notes in a public place. Thus, transportation of
counterfeit notes by the appellant is clearly established. Facts of the instant
case are clearly distinguishable from that in Hoda Sk. vs. State of West
Bengal1. In that case, no charge for trafficking of counterfeit notes had been
framed by the trial court and on such premise this court was of the view the
conviction under section 489B IPC on the score of trafficking could not be
upheld. On the other hand, in the present case appellant had been charged of
trafficking in counterfeit currency notes. Thus, conviction of the appellant
under section 489B IPC does not call for interference.
In the light of the aforesaid discussion, conviction and sentence of the
appellant is upheld.
Appeal is accordingly dismissed.
Period of detention suffered by the appellant during investigation,
enquiry and trial shall be set off from the substantive sentence imposed upon
the appellant in terms of Section 428 of the Code of Criminal Procedure.
Copy of the judgment along with Lower Court Records be sent down to
the trial court at once for necessary compliance.
Urgent Photostat Certified copy of this order, if applied for, be supplied
expeditiously after complying with all necessary legal formalities.
I agree. | The Calcutta High Court has recently observed that if the evidence of official witnesses inspire confidence then the absence of corroboration by independent witnesses who have turned hostile will not make a dent in the prosecution case. A Bench comprising Justice Bivas Pattanayak and Justice Joymalya Bagchi was adjudicating upon a case involving the seizure of fake currency notes. The...
The Calcutta High Court has recently observed that if the evidence of official witnesses inspire confidence then the absence of corroboration by independent witnesses who have turned hostile will not make a dent in the prosecution case.
A Bench comprising Justice Bivas Pattanayak and Justice Joymalya Bagchi was adjudicating upon a case involving the seizure of fake currency notes. The Court underscored,
"It is settled law if the evidence of the official witnesses are clear, convincing and inspire confidence, lack of support from the independent witnesses who have been won over and had turned hostile would not make a dent in the prosecution case. Hence, I am of the opinion, seizure of counterfeit notes suspected to be forged valued at Rs. 8 lakhs from the appellant and Rs. 2 lakh from the juvenile accused has been proved."
Background
The appellant had challenged the order dated March 30, 2016 passed by the concerned Sessions Court convicting him for the commission of offences punishable under Section 489B (Using as genuine, forged or counterfeit currency-notes or bank-notes) and Section 489C (possession of forged or counterfeit currency-notes or bank-notes) of the IPC.
On November 4, 2014 the S.I. of BSF at Baisnabnagar Police Station had received secret information that two persons are going from Malda to NTPC with fake Indian currency notes. He along with others went to the local police station and with police force proceeded towards the Township More. At that spot, they found two persons sitting in a tailor shop.
Upon search, eight bundles of currency notes suspected to be fake in denomination of Rs.1000 (each bundle containing 800 pieces) valued at 8 lakhs wrapped in a coffee colour cloth bag was recovered from the appellant Habibur Rahaman and two bundles of fake Indian currency notes in denomination of Rs.1,000 and Rs. 500 (one bundle containing 176 pieces and another containing 48 pieces respectively) valued at Rs. 2 lakhs was recovered from his nephew, Nasiruddin Sheikh, who was a juvenile at the time of occurrence.
The suspected currency notes were seized under a seizure list and the aforesaid miscreants were arrested. Seized notes were sent for examination and upon receipt of the report from the expert, charge-sheet was filed against the appellant and the juvenile. Case of the juvenile was sent to the Juvenile Justice Board while the appellant was tried in regular court.
During the proceedings before the High Court, the counsel appearing for the appellant argued that there are grave contradictions in the evidence of the official witnesses. It was contended that while one official stated that he had found the accused persons sitting in a tailor shop at township more where they were searched, another official had deposed that they were found loitering near PTS More and were subsequently searched. It was also submitted that there is variation with regards to the time when the search operation commenced.
Observations
The Court noted that all the witnesses had deposed that the seizure list had been prepared at the spot and had also signed on the seizure list. It was further noted that in the seizure list, the place of seizure has been described as "township area" approximately 1.6 km from BNHQ and 2.5 km from Baishnabnagar.
It was further averred that the contents of the seizure list have not been challenged. Opining that the evidence of the two police officers (P.W. 1 & P.W. 7) have to be assessed taking into consideration other evidence of record, the Court remarked further,
"P.W. 1 and other witnesses have clearly proved the place of occurrence as Township More. Version of P.W. 7 with regard to place of occurrence is, therefore, to be assessed in the backdrop of other evidence on record. As appearing from the sketch map, western side of Township is described as PTS area, hence, P.W. 7 may have loosely described the place of occurrence as PTS More. Version of P.W. 7 with regard to place of occurrence is clearly reconciliable with regard with other evidence on record and does not affect the credibility of the prosecution case."
It was further held that a minor variation with regards to the time of commencement of raid is of little consequence when the all the witnesses have reached a consensus regarding the search and seizure of FICNs from the appellant. Accordingly, it was observed that the evidence of the official witnesses have proved the prosecution case.
Dismissing the contention that the two independent witnesses have not supported the prosecution case, the Court underscored further,
"Both of them appear to have been won over and stated in a parrot-like manner they had signed the seizure list in the police station. Falsehood in their deposition was clearly exposed when they were confronted with their earlier statements to the police."
Thus, the Court held that the seizure of counterfeit notes suspected to be forged valued at Rs. 8 laks from the appellant and Rs. 2 lakh from the juvenile accused has been proved.
Case Title: Habibur Rahaman v. State of West Bengal |
The criminal original petition has been filed to direct the learned
Judicial Magistrate, Bodinayakanur, Theni District to run the sentences
passed in C.C.No.477 of 2018 concurrently along with the sentence passed in
C.C.No.02 of 2019, dated 21.01.2019.
2.The petitioner was involved in two different cases on two different
occasions. One case was registered on the file of the first respondent for the
offences under Sections 457 and 380 of IPC and after completion of
investigation, charge sheet had been filed and the same taken cognizance in
C.C.No.477 of 2018, on file of the learned Judicial Magistrate,
Bodinayakanur. Then, he was also involved in another case, for which, FIR
had been registered for the offences under Section 454 and 380 of IPC on the
file of the second respondent and culminated into C.C.No.2 of 2019. In both
the cases, the petitioner was convicted and sentenced by the judgment, dated
21.01.2019 in C.C.No.2 of 2019, in which, he was sentenced to undergo three
years imprisonment. Subsequently, the petitioner was also convicted in
C.C.No.477 of 2018, dated 25.01.2019 on the file of the very same learned
Judicial Magistrate and sentenced to undergo three years imprisonment. The
petitioner had already undergone a period of ten days of remand and he has
been in prison from 27.09.2018 till today. However, the learned Judicial
Magistrate, Bodinayakanur, while sentencing him for three years
imprisonment.
3. In this regard it is relevant to rely upon the judgment of the Division
Bench of this Court reported in 208-2-LW(Crl)773 in the case of
Selvakumar Vs. The Inspector of Police, Seidhunganallur Police Station
“11.The scope of Section 427(2) of Cr.P.C. is that in
respect of the convict undergoing imprisonment for life,
the sentence of the imprisonment passed on subsequent
conviction shall run concurrently. The reason being that
the sentence for life must be understood to mean as the
sentence to serve remainder of life in
http://www.judis.nic.in prison unless commuted or
remitted by the appropriate authority and the person
having only one life span, the sentence on the subsequent
conviction of imprisonment for a term of imprisonment
for life can only be superimposed the earlier life sentence
and certainly not added to it.
12.A Division Bench of this Court had an occasion
to consider a case of similar nature in K. Arasan and
others Vs. The State of Tamil Nadu, reported in
MANU/TN/1953/2012 : 2012 (6) CTC 510. The relevant
portion of the judgment is extracted hereunder.
“2. The crux of the question involved in this matter
is that whether this Court can invoke the inherent powers
under Section 482 of the Code of Criminal Procedure
[hereinafter referred to as “Cr.P.C”] for granting the
relief under Section 427, Cr.P.C, for ordering the
sentence imposed in the former case to run concurrently
along with the sentence of imprisonment awarded in the
latter case. 3. It is seen that two conflicting views
expressed by two learned Single Judges in respect of
invoking the jurisdiction under Section 482, Cr.P.C for
granting the relief of ordering the subsequent sentence to
run concurrently with the previous sentence awarded
against a person in an earlier case which necessitated
the learned referring Single Judge to refer the matter to a
Division Bench to resolve the said conflict between two
decisions. It is seen that a learned Single Judge in A.
Palanisamy @ Kaithan v. Inspector of Police, B1 Police
555 : 2011 (4) MLJ (Crl.) 813, after referring to various
judgments of the Hon'ble Apex Court, has held in
paragraph 27, as here-under. 27. In the instant case on
hand also, the provision of Section 427, Cr.P.C was not
invoked either in the original cases or in the Appeals.
Under the above said circumstances, Section
427, Cr.P.C cannot be applied in a separate and
independent proceedings by this Court in exercising the
inherent jurisdiction under Section 482, Cr.P.C.
4. Another learned Single Judge in A. Paulraj v.
Maria Chellammal, 2011 (4) MLJ (Crl.) 798, has taken a
contrary view by placing reliance on the decision of the
http://www.judis.nic.in Larger Bench of the Hon'ble Apex
“26. Since the Larger Bench of the Supreme Court
in State of Punjab v. Madhan Lal [supra] had considered
on Application filed, under Section 482, Cr.P.C the
decision rendered in M.S Kudva v. State of Andhra
Pradesh [supra] may not be applicable and invoking
jurisdiction under Section 482, Cr.P.C is indeed available
to the Petitioner.”
5. We have gone through the above two conflicting
decisions rendered by the two learned Single Judges.
13.0. It is pertinent to refer the following decisions
rendered by the other High Courts in respect of the issue
involved in this matter. 13.1. A Division Bench of the
Andhra Pradesh High Court in V. Venkateswarlu v. State
of A.P, 1987 Cri.L.J 1621, has held as here under:
“10. The High Court, while exercising its
Revisional jurisdiction suo motu or in exercise of its
inherent power under Section 482, can direct the
sentences to run concurrently as provided under Section
427, Cr.P.C, even though the convictions and sentences
that have been passed by the Additional Sessions Judges
of different Sessions Divisions have become final.” 13.2.
A Full Bench of Madhya Pradesh High Court
in Shersingh v. State of M.P, 1989 Cri.LJ 632 [1] has
“Inherent powers of the High Court can be invoked
under Section 482 even if the Trial Court or the appellate
or Revisional Court has not exercised its discretion
under Section 427(1) of the Code in directing running of
previous and subsequent sentences concurrently. The
inherent powers of the High Court is not in any way
fettered by the provisions of Section 427(1) and it can be
invoked at any stage even if there is no such order passed
under Section 427(1) by the Trial Court or Appellate or
Revisional http://www.judis.nic.in Court and even though
the conviction has become final.” 13.3. The view taken by
the Division Bench of the Andhra Pradesh High Court
and the Full Bench of the Madhya Pradesh High Court
are in line with the view taken by the Larger Bench of the
Hon'ble Apex Court in State of Punjab v. Madhan Lal,
2009 (5) SCC 238. As a matter of fact, as already pointed
out, the learned Single Judge of this Court in A. Paulraj
v. Maria Chellammal, 2011 (4) MLJ (Crl.) 798, also
referred the decision of the Hon'ble Apex Court in M.R
Kudva v. State of Andhra Pradesh, 2007 (2) SCC 772
(Two-Judge Bench) and preferred to place reliance on the
decision rendered by the Larger Bench consisting of
Three Judges of the Hon'ble Apex Court.
14.0. At this juncture, it is relevant to refer the
following decisions of the Hon'ble Apex Court:
14.1. In Union of India v. K.S Subramanian, AIR
1976 SC 2433, the Hon'ble Apex Court has held as
‘The proper course for a High Court is to try to
find out and follow the opinions expressed by Larger
Benches of the Supreme Court in preference to those
expressed by smaller Benches of the Court. That is the
practice followed by the Supreme Court itself. The
practice has not crystallized into a rule of law declared
by the Supreme Court. If however, the High Court is of
the opinion that the views expressed by Larger Benches
of the Supreme Court are not applicable to the facts of
the case it should say so giving reasons supporting its
point of view.” 14.2 The Hon'ble Apex Court in State of
Uttar Pradesh v. Ram Chandra, AIR 1976 SC 2547, has
“Constitutional position as regards the powers of
Court to go behind the orders of termination to find out
http://www.judis.nic.in in cases where a High Court finds
any conflict between the views expressed by larger and
smaller Benches of this Court, it cannot be disregard or
skirt the views expressed by the Larger Benches.
The proper course for a High Court in such a case
is to try to find out and follow the opinion expressed by
Larger Benches of the Supreme Court in preference to
those expressed by smaller benches of the Court which
practice, hardened as it has into a rule of law, is followed
by the Supreme Court itself.” The above decisions
rendered by the Hon'ble Apex Court make it crystal clear
that the High Court has to follow the opinion expressed
by the Larger Benches of the Hon'ble Apex Court in
preference to those expressed by smaller Benches. 15. As
far as the issue involved in this matter, we are of the
considered view that the learned Single Judge in A.
Paulraj v. Maria Chellammal, 2011 (4) MLJ (Crl.) 798,
has rightly placed reliance on the decision of the Larger
Bench consisting of Three Judges of the Hon'ble Apex
Court in State of Punjab v. Madhan Lal, 2009 (5) SCC
238, which is binding on this Court and taken a correct
view. 16. It is to be stated that invoking the jurisdiction
under Section 482, Cr.P.C in order to grant the relief
under Section 427, Cr.P.C would not amount to altering,
varying or modifying the findings of the Trial Court or
Appellate Court. On the other hand, it is always open to
this Court to exercise power under Section 482, Cr.P.C to
secure the ends of justice. It is needless to say that this
Court has to exercise its judicial discretion for invoking
the power under Section 482, Cr.P.C for granting the
relief under Section 427, Cr.P.C, on the basis of the facts
and circumstances and gravity of the charge levelled
against the Accused in each case. 17. In the result, we are
answering the reference to the effect that the inherent
power of the High Court under Section 482, Cr.P.C, can
very well be extended to issue a direction ordering the
sentence imposed in a latter case on conviction to run
concurrently with the sentence imposed in a former case
as provided under Section 427, Cr.P.C.”
http://www.judis.nic.in 6. In the case, on hand, it is seen
that the petitioner was involved in two cases only viz.,
C.C.No.22 of 2017 and C.C.No.23 of 2017. The
petitioner is not an habitual offender and he did not
commit any other offences, similar to those cases.
Further it is also seen that the learned Judicial
Magistrate, Sathiyamangalam sentenced him to undergo
imprisonment for a period of two years for both
sentences viz., offences under Sections 454 and 380 of
IPC to run concurrently. The High Court of
Bombay(Nagpur Bench) held as follows:
13. We are fortified in this view as per the
judgment in case of Abidkhan @ Salman Mukhtar Khan
Pathan vs. State of Maharashtra, reported in
which Justice Shukre authored the Judgment). Three
cases were tried and convicted by one Court.
(Metropolitan Magistrate), whereas in case before us,
two different Magistrate Courts (from two places) tried
and convicted these petitioners. This is the oly
distinguishable factor. Otherwise, the observation made
therein are perfectly applicable to the case before us.
14. We are also fortified in taking this view on the
basis of judgment delivered by Hon'ble Supreme Court.
In case of Benson vs. State of Kerala, reported in
Supreme converted the sentence into concurrent
sentences. There were almost 11 cases.
15. It is true that Bhandara Court and Tumsar may
or may not be aware of cases pending in two different
Courts. But, it is certain that both these Courts are fully
aware of cases dealt with by them. Can we say that these
two courts are unaware about legal provisions contained
in Section 427 of Cr.P.C. These two Courts have not given
them the benefit of concurrent theory of sentences. These
two Courts are fully aware about the provisions of
Probatiion of Offenders Act and they have
http://www.judis.nic.in denied the benefit to the
petitioners.
16. Ultimately, the Judicial Officers dealing with
the case is also having human element on it. So, while
convicting the petitioners, they must be having “repetitive
tendency of these petitioners while committing these
offences” in their mind. They were fully justified in
denying them benefits of concurrent theory. The theory of
deterrence must have weighed with their mind. But what
we feel is that the trial Courts are unaware of these
provisions of law. We say so because there is no
discussion on this issue. Judge may consciously deny
benefit. But, it must be reflected from the judgment. In
case of Abidkhan, there was direction to place the matter
before Registrar General. In order to sensitize the judges
in the State of Maharastra, we feel some more needs to be
done. Hence, we intend to direct the Registrar (Judicial)
to circulate this judgment amongst all Judges in State of
Maharashtra. We hope the Judges of trial Court and the
appellate Court will consider the provisions of Section
427 of Cr.P.C. while dealing with the issue of sentence.
Ultimately, it is the discretion of the concerned Judge
whether to grant him benefit or not. It depends upon facts
of each case. But it should not happened that due to
ignorance of this provisions of law, a rightful convict may
be denied benefit of this provision of law.
4.In view of the above judgments, the scope of Section 427 of Cr.P.C. is
that, in respect of conviction to undergo the sentence of imprisonment passed
on subsequent cases for the offence of same nature shall go concurrently. It is
also clear that this Court can exercise its jurisdiction under Section 482 of
Cr.P.C and issue direction that the sentence imposed by the trial Court to run
concurrently.
5.In the case on hand, the petitioner was convicted and sentenced in
two cases by the same Court in C.C.Nos.477 of 2018 by order dated
25.01.2019 and in C.C.No.2 of 2019, dated 21.09.2019.
6.In view of the above, this Court is of the considered opinion that the
sentences imposed on the petitioner in both the cases shall be run
concurrently. Accordingly, the criminal original petition is allowed.
Madurai Bench of Madras High Court, Madurai. | The Madras High Court recently held that the scope of Section 427 CrPC is that, in respect of conviction to undergo the sentence of imprisonment passed on subsequent cases for the offence of same nature, the sentence shall run concurrently. The court also made it clear that it can exercise of its jurisdiction under Section 482 of CrPC and issue direction that the sentence imposed by...
The Madras High Court recently held that the scope of Section 427 CrPC is that, in respect of conviction to undergo the sentence of imprisonment passed on subsequent cases for the offence of same nature, the sentence shall run concurrently. The court also made it clear that it can exercise of its jurisdiction under Section 482 of CrPC and issue direction that the sentence imposed by the trial court shall run concurrently.
Justice G.K Ilanthiraiyan of Madurai Bench observed the above while deciding the petition filed by one Murugan @ Panni Murugan seeking directions that the sentences passed against him by the Judicial Magistrate, Bodinayakanur in two cases to run concurrently.
The petitioner was convicted in two different cases on two different occasions. In the first case, he was charged under Sections 457 and 380 of IPC. In the second case, he was charged for offences under Section 454 and 380 of IPC. In both the cases, he was sentenced to undergo three years imprisonment. The petitioner had therefore filed the petition praying that these two sentences run concurrently.
The Bench relied on the judgement of the Division Bench of Madras High Court in Selvakumar Vs. The Inspector of Police, Seidhunganallur Police Station and ors., 2018-2-LW(Crl)773 where the court relying on the decision of Apex Court in State of Uttar Pradesh v. Ram Chandra (1976) had held that-
"It is to be stated that invoking the jurisdiction under Section 482, Cr.P.C in order to grant the relief under Section 427, Cr.P.C would not amount to altering, varying or modifying the findings of the Trial Court or Appellate Court. On the other hand, it is always open to this Court to exercise power under Section 482, Cr.P.C to secure the ends of justice. It is needless to say that this Court has to exercise its judicial discretion for invoking the power under Section 482, Cr.P.C for granting the relief under Section 427, Cr.P.C, on the basis of the facts and circumstances and gravity of the charge levelled against the Accused in each case. In the result, we are answering the reference to the effect that the inherent power of the High Court under Section 482, Cr.P.C, can very well be extended to issue a direction ordering the sentence imposed in a latter case on conviction to run concurrently with the sentence imposed in a former case as provided under Section 427, Cr.P.C."
The judgement also relied on the decision of A Division Bench of the Andhra Pradesh High Court in V. Venkateswarlu v. State of A.P, (1987) where it was held that the High Court, while exercising its Revisional jurisdiction suo motu or in exercise of its inherent power under Section 482, can direct the sentences to run concurrently as provided under Section 427, Cr.P.C, even though the convictions and sentences that have been passed by the Additional Sessions Judges of different Sessions Divisions have become final.
Reference was also made to the decision of a full Bench of Madhya Pradesh High Court in Shersingh v. State of M.P, (1989) where it was held as under:
"Inherent powers of the High Court can be invoked under Section 482 even if the Trial Court or the appellate or Revisional Court has not exercised its discretion under Section 427(1) of the Code in directing running of previous and subsequent sentences concurrently. The inherent powers of the High Court is not in any way fettered by the provisions of Section 427(1) and it can be invoked at any stage even if there is no such order passed under Section 427(1) by the Trial Court or Appellate or Revisional Court and even though the conviction has become final."
Considering the view taken by the courts on previous occasions, the court deemed it fit to direct the sentences imposed on the petitioner to run concurrently.
Case Title: Murugan @ Panni Murugan v. The State rep. by Sub Inspector of Police and Anr.
Case No: Crl O.P No. 4142 of 2022
Counsel for Petitioner: Mr. G Karuppusamy Pandiyan
Counsel for Respondent: Mr. B Thanga Aravindh (Governmetn Advocate) |
1. The present appeal has been preferred under Section 374(2) read with
Section 482 Cr.P.C. on behalf of the appellant challenging the judgment on
conviction dated 24.10.2019 and the order on sentence dated 30.10.2019
passed by the learned Addl. Sessions Judge-02 (North-East District),
Karkardooma Courts, Delhi in Sessions Case No. 257/2017 arising out of
FIR No. 244/2017 registered under Sections 307/324 IPC at Police Station
2. Vide the impugned judgment, the appellant was convicted for the
offences punishable under Sections 307/324 IPC and vide the order on
(i) for the offence punishable under Section 307 IPC, to undergo
Rigorous Imprisonment for a period of 06 years, alongwith payment of fine
of Rs.5,000/, in default whereof to further undergo Simple Imprisonment for
(ii) for the offence punishable under Section 324 IPC, to undergo
Rigorous Imprisonment for a period of 01 year, alongwith payment of fine
of Rs.1,000/-, in default whereof to further undergo Simple Imprisonment
for a period of 01 month.
3. The benefit of Section 428 Cr.P.C. was extended to the appellant. All
the sentences were directed to run concurrently and the fines have already
been paid.
4. The brief facts, as noted by the Trial Court, are as under:-
“1. In brief the facts of the prosecution case are that on
24.05.2017, ASI Surender Pal received DD No. 115B. On receipt
of the DD, ASI Surender Pal along with Ct. Jhabar Ram reached
at the spot i.e. Purani Chowki, Mustafabad, Delhi. On reaching
there, they came to know that the injured had already been
removed to GTB Hospital. Thereafter, ASI Surender Pal along
with Ct. Jhabar Ram reached GTB Hospital and collected the
MLC No. A-4451/17 of injured Yunus S/o Sh. Yusuf wherein the
doctor had mentioned ‘physical assault and U/O’. In the
meantime, brother of injured Yusuf namely Sahil also came in the
hospital in an injured condition who was also got admitted in the
hospital by ASI Surender Pal vide MLC No. C-1908/17 and the
doctor had mentioned on his MLC as ‘physical assault fit & U/O
sharp’. Thereafter, ASI Surender Pal recorded statement of
injured Yunus wherein he stated that he is the permanent resident
of Village Daurala, PS Daurala, Meerut UP and along with his
family was residing on rent and works as sewing machine
mechanic. On 24.05.2017, he along with his brother Sahil was
going to buy some medicine and when at about 10.00 PM, they
reached at the corner of Block Gali No.7, Nehru Vihar, accused
Saleem, who resided in Gali o.6 Dayalpur assaulted upon him
with knife on his neck and right shoulder. When Sahil (brother of
Yunus) came to rescue him, he was also assaulted by accused
Saleem and caused injuries to him. He further narrated that
accused Saleem had met him in the day time and had said ‘tune
hamare upar mukadma karaya hai, mai tujhe aaj shaam tak jaan
se maar dunga’ and also threatened him. On this, Sahil (brother
of Yunus) called at 100 number, PCR van came and took him and
his brother Sahil to the GTB hospital.”
5. After completion of investigation, the charge sheet was filed under
Sections 307/324/506 IPC. Vide order dated 06.09.2018, charges were
framed against the appellant under Sections 307/324 IPC, to which he pled
not guilty and claimed trial.
6. Learned counsel for the appellant contended that the testimony of
complainant/Mohd. Yunus is unreliable on account of prior enmity with the
appellant, which has been admitted by the complainant himself. It was
submitted that neither the weapon of offence was recovered during
investigation nor were the complainant’s blood-stained clothes seized.
Further, the testimony of brother of the complainant/Sahil was contended to
be unreliable on the ground that Sahil had not accompanied his brother to
the hospital. It was also submitted that the PCR Form pertaining to call on
100 number was not produced.
Learned counsel also contended that the testimonies of the
complainant and his brother have material contradictions, inasmuch as the
complainant stated that the incident had occurred at about 10:00 p.m., but
his brother stated that the incident occurred at about 8:00 p.m. It was further
contended that Dr. Deepika, who proved the nature of injuries recorded in
the MLC of the complainant, did not depose regarding preparation of the
same. Lastly, it was contended that the Investigating Officer had not
recorded the statement of any public witness. In the alternative, learned
counsel submitted that the appellant was not pressing his appeal on merit
and he may be released on the period already undergone by him.
7. Learned APP for the State, on the other hand, supported the impugned
judgment and order. It was submitted that the testimonies of both Mohd.
Yunus and Sahil are consistent with each other and reliable, as both have
deposed that they were assaulted by the appellant, who was already known
to them.
8. I have heard learned counsels for the parties and have also gone
through the Trial Court Record, as well as the written submissions filed on
behalf of the appellant.
9. In support of its case, the prosecution had examined a total of seven
witnesses. The complainant/injured/Mohd. Yunus was examined as PW-1;
the complainant’s brother Sahil, who was also injured in the incident, was
examined as PW-2; Ct. Jhabar Ram (PW-3) and HC Rajender Singh (PW-4)
were examined to prove the arrest memo and registration of the FIR
respectively; Dr. Arvind Gautam, who proved the MLCs of Mohd. Yunus
and Sahil on behalf of Dr. Deepika, was examined as PW-5; ASI Surender
Pal, the Investigating Officer of the case, was examined as PW-6; Dr.
Deepika, who also proved the MLC of complainant/Mohd. Yunus wherein
nature of injury was opined as grievous by Dr. Ramandeep Kaur, was
examined as PW-7.
10. The complainant/Mohd. Yunus deposed in his testimony that he was
residing alongwith his parents in a rented accommodation and worked as a
mechanic of sewing machines. On the day of the incident, i.e. on
24.05.2017, at about 10:00 p.m., while he was going alongwith his brother
Sahil to take medicine, the appellant came and assaulted him with a knife.
The assault resulted in injuries to the witness on his neck and on front side
of his right shoulder. When the complainant’s brother Sahil tried to save
him, he was also given a knife blow by the appellant on his left cheek. After
being assaulted, the brother of the witness made a complaint at 100 number,
whereafter PCR came to the spot and took them to the GTB Hospital. It was
further deposed that the appellant had attacked the complainant on an earlier
occasion as well with a hockey and danda, regarding which complaint was
given to the police and a case was registered. It was also deposed that in
order to take revenge, the appellant had asked the complainant about a day
prior to the day of the incident to withdraw the earlier complaint. In this
regard, he was also given life threats. After about three days of the incident
in question, the appellant came to be arrested at the instance of the witness.
He was also identified by the complainant in the Court.
In cross-examination, the witness stated that on the date of the
incident, he went to buy medicine for himself as he was having eye-pain due
to injuries which were earlier caused by the appellant. He further stated that
though he remained hospitalized for three days, his brother was discharged
on the same day. He denied the suggestion that injuries received by him
were caused by some other person and not the appellant. A suggestion that
the appellant was falsely implicated as the complainant’s family members
had enmity with some other person, or that the appellant was falsely
implicated at the instance of complainant’s family members, was also
denied. He also denied the suggestion that he had not seen the face of the
appellant at the time of incident.
11. Sahil, i.e. the brother of Mohd. Yunus deposed that, two days prior to
the incident, the appellant had assaulted his brother in respect of which a
complaint was lodged at the police station. He further deposed that on the
day of the incident, the appellant had caused injuries on the neck and other
parts of the body of his brother with a chhurri. When he tried to save his
brother, he was also assaulted by the appellant with the chhurri on his left
cheek, whereafter the appellant ran away. Subsequently, the witness had
made a call to 100 number. While he went to call his family members, the
PCR Van took his brother/Mohd. Yunus to GTB Hospital, where he was also
taken later by the police.
In cross-examination (recalled under Section 311 Cr.P.C.), the witness
denied the suggestion that he was not present on the spot at the time of the
incident or that he had deposed falsely to implicate the appellant.
12. Dr. Arvind Gautam, CMO, GTB Hospital, Delhi proved the MLC
dated 24.05.2017 of Mohd. Yunus (Ex.PW-5/A) and deposed that it was
prepared under his supervision by Dr. Deepika, then JR (Junior Doctor). He
identified the handwriting and signatures of Dr. Deepika on the said MLC
and stated that following injuries were noted on local examination:-
“1. Incised would in the size of 4x2 cm on right side of chest
near shoulder.
2. Incised wound in the size of 15x3 cm on throat extending
to chin.
3. Old injury as mentioned in the MLC NO. A-4422/14/17.”
The witness also proved the MLC dated 25.05.2017 of Sahil (Ex.PW-
5/B). He further deposed that any opinion on the nature of injuries suffered
by Sahil could not be given as he had absconded from the casualty.
In cross-examination, a suggestion that the injuries could have
resulted from a fall was denied by the witness, since they were sharp in
13. Dr. Deepika, Sr. Resident, ENT Department, GTB Hospital also
proved that the injuries suffered by complainant/Mohd. Yunus were grievous
in nature. In this regard, she identified the signatures of Dr. Ramandeep
Kaur on the complainant’s MLC.
14. ASI Surender Pal, the Investigating Officer of the case, deposed that
he had recorded the statement of the complainant (Ex.PW1/A) and at his
pointing out, arrested the appellant on 27.05.2017. He also deposed that
despite best efforts, the weapon of offence could not be recovered.
15. The appellant’s statement under Section 313 Cr.P.C. was recorded,
wherein he stated that he was falsely implicated in the present case.
16. Needless to state, Mohd. Yunus was the star witness of the
prosecution case, being the complainant who suffered injuries at the time of
the incident. The law on appreciation of testimony of an injured witness has
been enunciated by the Supreme Court in a catena of decisions, including
State of Uttar Pradesh v. Naresh and Others reported as (2011) 4 SCC 324,
“27. The evidence of an injured witness must be given due
weightage being a stamped witness, thus, his presence cannot be
doubted. His statement is generally considered to be very
reliable and it is unlikely that he has spared the actual assailant
in order to falsely implicate someone else. The testimony of an
injured witness has its own relevancy and efficacy as he has
sustained injuries at the time and place of occurrence and this
lends support to his testimony that he was present during the
occurrence. Thus, the testimony of an injured witness is accorded
a special status in law. The witness would not like or want to let
his actual assailant go unpunished merely to implicate a third
person falsely for the commission of the offence. Thus, the
evidence of the injured witness should be relied upon unless
there are grounds for the rejection of his evidence on the basis of
major contradictions and discrepancies therein. (Vide Jarnail
Singh v. State of Punjab [(2009) 9 SCC 719, Balraje v. State of
Maharashtra (2010) 6 SCC 673 and Abdul Sayeed v. State of
17. A perusal of the material on record in the present case would show
that the complainant/Mohd. Yunus had clearly deposed that there was pre-
existing enmity between the accused/appellant and him, as earlier also the
appellant had caused injuries to him, and in pursuance thereto a police
complaint was made. In the incident in question, the complainant received
injuries on the neck and on front shoulder, which are corroborated by his
MLC, and are alleged to have been caused by a chhurri.
Sahil, i.e. brother of the complainant, was also injured in the same
incident and he also deposed that it was the appellant who inflicted injuries
on him and his brother with a chhurri. The testimony of Sahil is not only
cumulative to the testimony of the complainant, but also consistent and it
finds corroboration from his own MLC, which has been proved on the
record as Ex.PW-5/B.
During the trial, the suggestion given on behalf of the appellant that
the injuries were possible on account of fall was denied by Dr. Arvind
Gautam as the injuries were sharp in nature. The incident is stated to have
taken place at about 10:00 p.m. The complainant’s MLC was prepared on
the same day at about 10:45 p.m., i.e. immediately after the incident. The
FIR came to be registered at 03:30 a.m. and the appellant being already
known, was named in the FIR itself.
18. It is seen that the testimonies of both, the complainant/Mohd. Yunus
and his brother/Sahil, are consistent with their earlier statements and find
support not only from each other, but also from the respective MLCs, which
have been duly proved on record. In view of the aforesaid and the other
evidence placed on record, this Court finds the testimonies of the
complainant/Mohd. Yunus and his brother Sahil to be both creditworthy and
19. A contention was raised on behalf of the appellant with respect to
non-recovery of the weapon of offence. In connection therewith, it is noted
that the Supreme Court has observed in Rakesh and Another v. State of Uttar
Pradesh and Another reported as (2021) 7 SCC 188 that recovery of the
weapon of offence is not a sine qua non for convicting an accused. Albeit
under Sections 302/34 IPC, the Court in this case also opined that it was not
possible to reject the ocular evidence of eye-witnesses to the incident, who
were reliable and trustworthy.
Combined with the fact that the testimonies of the complainant and
his brother Sahil are cogent and consistent, the contention raised on behalf
of the appellant that the weapon of offence was not recovered, has no merit.
The same is rejected accordingly.
20. The next contention raised on behalf of the appellant was that the
testimonies of the complainant and his brother exhibit material contradiction
on the aspect of the time of the incident. While the complainant deposed that
the incident occurred around 10:00 p.m., his brother Sahil deposed that the
incident occurred around 08:00 p.m. In this regard, it is noted that in the
alleged history of offence recorded by the concerned Doctor in the MLC of
Sahil, it was mentioned that the physical assault took place around 10:00
p.m. as per the patient himself. Even otherwise, the contradiction, as
suggested, is immaterial, insofar as the appellant was already known to both
the injured persons and their testimonies are consistent on all other aspects
of the incident.
21. Another contention raised on behalf of the appellant was that Dr.
Deepika had not deposed about preparation of the complainant’s MLC.
However, this contention as well lacks merit, as the said MLC was also
proved by Dr. Arvind Gautam. Dr. Arvind Gautam categorically deposed
that the complainant’s MLC was prepared under his supervision by Dr.
Deepika, who was working as a JR under him at the time. Further, while
appearing as PW-7, Dr. Deepika proved the nature of injuries appearing on
the complainant’s MLC as grievous and no suggestion was given to her in
cross-examination that she had not prepared the complainant’s MLC.
22. It was also contended on behalf of the appellant that the blood-
stained clothes of the complainant were not seized and the PCR Form was
not produced. However, in view of the fact that the complainant was
medically examined within 45 minutes of the incident, the contention bears
no merit and is rejected.
23. Insofar as the contention with respect to non-examination of public
witness is concerned, suffice it to note that when the testimony of an injured
complainant is consistent and finds support not only from his own MLC, but
also from the testimony of another injured, then such a contention pales into
insignificance. In this regard, it is deemed expedient to refer to the decision
of the Supreme Court in Sadakat Kotwar and Another v. State of Jharkhand
reported as 2021 SCC OnLine SC 1046, where the Court observed as
“7. …As observed and held by this Court in catena of decisions
nobody can enter into the mind of the accused and his intention
has to be ascertained from the weapon used, part of the body
chosen for assault and the nature of the injury caused.
Considering the case on hand on the aforesaid principles, when
the deadly weapon - dagger has been used, there was a stab
injury on the stomach and near the chest which can be said to be
on the vital part of the body and the nature of injuries caused, it
is rightly held that the appellants have committed the offence
under Section 307 IPC.”
24. Note is also taken of the fact that the injuries suffered by the
complainant, allegedly caused by a chhurri, were inflicted on vital part of
his body i.e. the neck. The nature of the corresponding injury was opined to
be grievous. It was deposed by the complainant that earlier also, he was
assaulted by the appellant, pursuant to which a complaint was lodged with
the police. The appellant’s Nominal Roll also indicates that he is involved in
FIR No. 235/2017 registered under Sections 308/34 IPC at Police Station
25. The pre-existing enmity between the appellant and the complainant,
the receipt of two injuries by the complainant during the incident, out of
which one was on vital part of the body i.e. neck, the nature of the injury
being opined as grievous would indicate that the appellant had the requisite
intention as well as the knowledge that such injuries could have been fatal.
Thus, in the opinion of this Court, the ingredients of the offence punishable
under Section 307 IPC are clearly proved against the appellant beyond any
shadow of doubt. On the same parameters, even though there was no
opinion on the nature of injury suffered by Sahil, the receipt of injury by him
was proved through his MLC.
26. In view of the aforesaid analysis, this Court concurs with the
impugned judgment on conviction passed by the Trial Court. Accordingly,
the impugned judgment is upheld.
27. Learned counsel for the appellant prayed that a lenient view on the
appellant’s sentence may be taken as the appellant has already undergone
about 04 years and 06 months out of the total sentence of 06 years awarded
to him and the fine imposed on him has already been deposited. It was
further stated that the appellant at the time of incident was a little over 18
years of age and he belongs to a poor family. It was also stated that the
appellant has responsibility of his parents as well as five brothers and sisters
on him.
28. As per the Nominal Roll of the appellant available on record, he has
already undergone sentence of 04 years 05 months and 09 days as on
07.11.2021, alongwith remission of 06 months and 03 days, and his
unexpired portion of sentence is 01 year and 18 days. The fine amount is
stated to have been deposited. His jail conduct for the last one year is also
stated to be satisfactory.
29. Keeping in view the appellant’s age, the period of incarceration, his
jail conduct for the last one year and other mitigating circumstances, this
Court deems it fit to modify the order on sentence and direct that the
appellant be released on the period already undergone by him unless
required in any other case.
30. The appeal is dismissed insofar as challenge to the judgment on
conviction is concerned, however the order on sentence is modified to the
aforesaid extent.
31. A certified copy of this judgment be communicated to the appellant
through the concerned Jail Superintendent and also to the Trial Court. | The Delhi High Court vindicated the case of the State upholding S. 307/324 IPC (attempt to murder/voluntary causing hurt by dangerous weapons) Conviction after confirming the reliability of the testimony of the injured witness. Appellant's objections to procedural irregularities such as non-examination of public witness and non-recovery of the weapon of offense by the prosecution...
The Delhi High Court vindicated the case of the State upholding S. 307/324 IPC (attempt to murder/voluntary causing hurt by dangerous weapons) Conviction after confirming the reliability of the testimony of the injured witness. Appellant's objections to procedural irregularities such as non-examination of public witness and non-recovery of the weapon of offense by the prosecution were brushed aside in light of the reliable testimony of the injured witness.
Justice Manoj Kumar Ohri highlighted the law on appreciation of injured witness according to a very high degree of reliability. Citing the Supreme Court decision in State of Uttar Pradesh v. Naresh and Others (2011), he quoted:
"The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable, and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein."
Thus, the testimony of an injured witness, unless countered by significant discrepancies, is highly reliable, removing all doubts as to the likelihood of the witness falsely implicating the attacker.
Background
The convict assaulted the injured witness on multiple occasions, leading to an FIR under Sections 308/34 of the IPC. On the day of the Complaint, the injured was accosted by the assailant. He threatened him with assault citing the proceedings initiated by the injured. At night, the assailant accosted him and his friend on their way to a medical store. As per the Police Complaint, he assaulted him at vital body parts viz. neck and right shoulder with a knife.
Further, upon the friend's intervention, the assailant inflicted injuries upon him as well. The injured were taken to the hospital. An FIR was lodged the next day at around 3:30 AM. The concerned doctors' MLCs were brought on record, confirming that the injuries being sharp and incisive could have been inflicted by a knife.
During the examination of witnesses, the Investigating Officers deposed that the weapon of offense could not be retrieved. The Appellant raised this as a contention before the Court proceedings. Further, the Appellant suggested that the injuries could have been due to a fall. However, this was denied by the injured witness. The Appellant also highlighted other discrepancies such as non-recovery of blood-stained clothes and contradictions between the testimonies of the injured witnesses specifying different times of the incident.
Brushing aside all such contentions, the Court ruled that the testimony of the injured witness was found to be highly reliable. This was because the testimony was consistent on all other aspects with the testimony of the friend, medical examinations on the injured, and the MLC details. Two significant points of law were clarified by the Court here:
Recovery of the weapon of offense is not a sine qua non for convicting an accused. Countering the Appellant's objection to the non-recovery of weapon, the Court citing Rakesh and Another v. State of Uttar Pradesh (Supreme Court, 2021), held that the same is not absolutely necessary for determining Conviction.
Non-examination of a public witness becomes insignificant in light of corroboration of testimony of the injured witness with another injured and the MLC record. Further, the injuries were found to be of grievous nature. Citing Sadakat Kotwal and Another v. State of Jharkhand (Supreme Court, 2021), the Court quoted:
"As observed and held by this Court in catena of decisions nobody can enter into the mind of the accused and his intention has to be ascertained from the weapon used, part of the body chosen for assault and the nature of the injury caused. Considering the case on hand on the aforesaid principles, when the deadly weapon - dagger has been used, there was a stab injury on the stomach and near the chest which can be said to be on the vital part of the body and the nature of injuries caused, it is rightly held that the appellants have committed the offence under Section 307 IPC."
Holding
The Court upheld the conviction that the above factors, coupled with the enmity between the parties, were reflected by an earlier FIR registered against the Appellant.
Case Details
Case Name: Saleem Khan v. The State (Govt. of GNCT, Delhi)
Case Number: CRL.A. 491/2020
Date of Decision: 5.1.2022
Coram: JUSTICE MANOJ KUMAR OHRI |
Mrs G. P. Mulekar, APP for the Respondent-State.
By this Appeal filed under Section 374 of the Code of
Criminal Procedure, 1973, the Appellant seeks to challenge the
apeal-634.2014.doc
Judgment dated 15 September 2011 passed by the learned
Sessions Judge, Pune, in Sessions Case No. 556 of 2010, whereby
the Appellant is convicted for committing an offence punishable
under Section 302 of the Indian Penal Code, 1860. He was
sentenced to undergo imprisonment for life together with payment
of the fine of Rs.500/- and in default of payment of fine, he has
been sentenced to undergo rigorous imprisonment for six months.
2. Background facts, in a nutshell, are as follows:
i) Accused/Appellant Uttam Lande was residing at village
Takve Budruk along with his wife Sangita and two sons, namely,
Balaji and Dyneshwar. The accused was addicted to liquor. After
consuming liquor, he used to threaten his wife that he would not
keep her alive.
ii) On 29.04.2010 at about 6:00 am, accused Uttam consumed
liquor and insisted his wife Sangita not go to work. On refusal, the
accused got infuriated and raked up a quarrel, stating that he would
see how she could go for work. He then poured kerosene on her
and set her on fire. Sangita began shouting; hearing her screams,
the neighbours rushed to her rescue and extinguished the fire. She
suffered burn injuries on her face, chest, abdomen and thighs. She
was immediately taken to Dr Dahiphale’s clinic in the same village.
apeal-634.2014.doc
On his advice, she was shifted to Sassoon Hospital, Pune. As it was
a case of burning, the Police were informed.
visited the hospital and consulted Medical Officer Dr Raghvendra
Chalikwar to record the statement of Sangita. Upon examination of
Sangita, Dr Chalikwar found her in a fit condition to give a
statement. Accordingly, on 29.04.2010 at about 4:30 pm, PHC Mr
Waghule, in the presence of Dr Chalikwar, recorded her statement
wherein she alleged that her husband/accused poured kerosene on
her person and set her ablaze. Her statement was then forwarded
to Vadgaon Maval Police Station for further action. Based on this,
an offence bearing C.R. No. 74 of 2010 under Section 307 of the
Indian Penal Code came to be registered against the accused.
Panchnama of the scene of occurrence came to be drawn.
Incriminating articles found thereat were seized. Seized articles
were sent to the forensic science laboratory for analysis. The
witnesses were interrogated, and their statements were recorded.
iv) On 03.05.2010, the brother of Sangita shifted her to Pawana
Hospital for further medical treatment. However, on 06.05.2010,
Sangita succumbed to the burn injuries and, therefore, the offence
was converted to one under Section 302 of the Indian Penal Code.
apeal-634.2014.doc
v) Inquest on the dead body of the deceased was held. The
autopsy examination of the deceased was conducted. Police
procured postmortem notes and the report from the forensic
science laboratory. As the investigation revealed the complicity of
the accused in the offence punishable under Section 302 of the
Indian Penal Code, a charge sheet came to be lodged against him.
3. To prove its case, the prosecution examined as many as seven
witnesses and tendered a number of documents. The evidence of
the prosecution can be conveniently classified into three parts.
Firstly, the dying declaration allegedly made by the deceased, which
was sought to be proved through the testimony of PHC Shashikant
Waghule (PW1) and Dr Raghvendra Chalikwar (PW2). Secondly,
the medical evidence formed by the testimony of Dr Raghvendra
Chalikwar (PW2), Dr Madhav Waghmare (PW4) and Dr Ashwin
Masane (PW5), and the documents came to be proved in their
evidence. Thirdly, circumstantial evidence in the nature of the
Scene of Occurrence Panchnama and Chemical Analyzer’s Report.
After the completion of prosecution evidence, the statement of the
accused was recorded under Section 313 of the Code of Criminal
Procedure, 1973, wherein the entire incriminating evidence was
put to the accused. In reply, the accused pleaded innocence and
apeal-634.2014.doc
false implication at the instance of the deceased’s brother.
According to him, Sangita sustained burn injuries from the bursting
of a kerosene stove while cooking a meal.
4. The learned Sessions Judge relying on the statement of
Sangita made before PHC Shashikant Waghule and Dr Raghvendra
Chalikwar and which has been treated as the dying declaration of
Sangita (hereinafter referred to as ‘the deceased’) and the testimony
of the witnesses and documents, found that the prosecution case
had been proved beyond doubt and held the accused guilty and
convicted him under Section 302 of the Indian Penal Code.
Evidence of PW1 and PW2 are relied upon to repose the faith in
the dying declaration.
5. Mr Abhishek Avchat, learned counsel appearing on behalf of
the Appellant, submitted that the learned trial Court committed a
manifest error in returning a finding of guilt sans legal evidence.
According to him, no reliance could be placed on the statement,
which was considered to be the dying declaration of the deceased,
as the declaration was not made to a Magistrate but to a Police
Officer, and no explanation was offered as to why the declaration
could not be made to the Magistrate. The cause of burn injuries is
attributed to the accidental bursting of the stove.
apeal-634.2014.doc
6. To further raise suspicion on the dying declaration, it is
submitted that the facts and circumstances of the case demonstrate
that the deceased was in no state to make a statement because of
her suffering 72% burn injuries. Also, there was no corroborating
evidence of this alleged dying declaration. In his view, in the
absence of any corroboration of the dying declaration, the
conviction could not be justified.
7. It has been submitted that the neighbours, who took the
deceased to the hospital and the brother of the deceased, who got
her discharged from Sassoon Hospital and admitted her to a private
hospital, have not been examined, nor have any independent
witnesses, though available, was examined by the prosecution.
8. It has been submitted that Dr Hariram Dahiphale (PW7) has
stated that the deceased informed him that she suffered burn
injuries due to the bursting of the stove accidentally. There is
inconsistency in the evidence of Dr Dahiphale, narration in the
FIR, and the dying declaration of the deceased.
9. It has been submitted that though the incident occurred on
29.04.2010 at about 6:00 am, the dying declaration was recorded at
apeal-634.2014.doc
about 4:30 pm, as such, ample time for tutoring was available.
Further, it has been submitted that there are discrepancies in the
medical papers of Sassoon and Pawana Hospitals, as the papers of
Pawana Hospital show accidental burns as against homicidal burns.
10. According to the learned counsel for the Appellant, the trial
Court did not examine the evidence from a proper perspective. He
complains that the trial Court has misread the prosecution evidence
and was influenced by several assumptions which cannot be
sustained based on the material on record, and this has resulted in a
grave miscarriage of justice. In support of his contentions, the
learned counsel relied on the decision in Uttam v/s. State of
11. Mrs G. P. Mulekar, learned Additional Prosecutor appearing
for the respondent-State, made various submissions countering the
arguments put forth by the Appellant. She submitted that the
deceased had narrated a detailed incident, which is amply
corroborated by the medical evidence, wherein she had explicitly
named the Appellant as a culprit.
12. It has been submitted that the evidence of Dr Chalikwar
(PW2) shows that at the time of admission, the deceased had given
apeal-634.2014.doc
a history of homicidal burns. This witness stated that before the
recording of the dying declaration of the deceased, he examined her
and found her to be conscious and oriented to time, place and
person. In his presence, PHC Waghule, as per narration given by
Sangita, recorded her dying declaration.
13. Learned APP invited our attention to the fact that the Police
Head Constable, who had recorded the dying declaration, was not
the Investigating Officer, nor was he posted at Vadgaon Maval
Police Station. According to her, the conviction in a murder case
based on a truthful dying declaration, even made to the Police
Officer and not to the Magistrate, is sufficient to convict the
accused. According to her, no fault can be found with the
14. It is submitted that there is only one dying declaration
recorded on 29.04.2010 at about 4:30 pm. The evidence of PW1
and PW2 corroborates the dying declaration. Panchnama of the
scene of occurrence does not support the theory of the bursting of
the stove. It is pointed out that after examining Sangita, Dr
Chalikwar (PW2) endorsed the dying declaration to the effect that
she was in sound condition to give the statement. After that, he
apeal-634.2014.doc
claimed to have signed the dying declaration, which came to be
proved in the evidence.
15. It is a settled position of law that a dying declaration must not
necessarily be made to a Magistrate only. What is essentially
required is that the person who records a dying declaration must be
satisfied that the deceased was in a fit state of mind.
16. In Jaswant Singh v/s. State (Delhi Administration) 2, it is held
that conviction in the murder case based on a truthful dying
declaration, even made to Police Official and not to the Magistrate,
is sufficient to convict the accused.
17. In State of Uttar Pradesh v/s. Ramsagar Yadav & Ors. 3, the
Hon’ble Supreme Court, has observed that a dying declaration can
be acted upon without corroboration. There is not even a rule of
prudence which has hardened into a rule of law that a dying
declaration cannot be acted upon unless it is corroborated. The
primary effort of the Court has to be to find out whether the dying
declaration is true, it is only if the circumstances surrounding the
dying declaration are not clear or convincing that the Court may,
for its assurance, look for corroboration to the dying declaration.
apeal-634.2014.doc
18. In Ramawati Devi v/s. State of Bihar4, it was enunciated that
there is no requirement of law that a dying declaration must
necessarily be made to a Magistrate. What evidentiary value or
weight has to be attached to such a statement must necessarily
depend on the facts and circumstances of each particular case. In a
proper case, it may be permissible to convict a person based on a
dying declaration in light of the facts and circumstances of the case.
19. In Jagbir Singh v/s. State (NCT of Delhi) 5, after referring to
its previous pronouncements in Paniben v/s. State of Gujarath6,
wherein the principles of a dying declaration were expounded as
“(i) There is neither rule of law nor of prudence that
dying declaration cannot be acted upon without
corroboration. (Munnu Raja & Anr. v/s. State of
(ii) If the Court is satisfied that the dying declaration
is true and voluntary it can base conviction on it,
without corroboration. (State of Uttar Pradesh v/s. Ram
Sagar Yadav8, Ramawati Devi v/s. State of Bihar9)
apeal-634.2014.doc
(iii) This Court has to scrutinize the dying declaration
carefully and must ensure that the declaration is not the
result of tutoring, prompting or imagination. The
deceased had opportunity to observe and identify the
assailants and was in a fit state to make the declaration.
(K. Ramchandra Reddy v/s. Public Prosecutor10)
(iv) Where dying declaration is suspicious it should
not be acted upon without corroborative evidence.
(Rasheed Beg v/s. State of Madhya Pradesh11)
(v) Where the deceased was unconscious and could
never make any dying declaration the evidence with
regard to it is to be rejected. (Kake Singh v/s. State of
(vi) A dying declaration which suffers from infirmity
cannot form the basis of conviction. (Ram Manorath
v/s. State of Uttar Pradesh13)
(vii) Merely because a dying declaration does not
contain the details as to the occurrence, it is not to be
rejected. (State of Maharashtra v/s. Krishnamurti
(viii) Equally, merely because it is a brief statement, it is
not to be discarded. On the contrary, the shortness of
apeal-634.2014.doc
the statement itself guarantees truth. (Surajdeo Ojha
v/s. State of Bihar15)
(ix) Normally the Court in order to satisfy whether
deceased was in a fit mental condition to make the
dying declaration look up to the medical opinion. But
where the eyewitnesses had said that the deceased was
in a fit and conscious state to make this dying
declaration, the medical opinion cannot prevail.
(Nanhau Ram v/s. State of Madhya Pradesh16)
(x) Where the prosecution version defers from the
version as given in the dying declaration, the said
declaration cannot be acted upon. (State of Uttar
Pradesh v/s. Madan Mohan17)”
20. A survey of these decisions would show that the mere fact
that the dying declaration was recorded by a Police Official cannot
be a ground to discard the same. It is for the defence to
demonstrate that the Police Official has some agenda or motive to
record a false statement or to fabricate the statement of the victim
of the crime. Conviction of a person can be made solely on the
basis of a dying declaration which inspires the confidence of the
Court. If there is nothing suspicious about the declaration, no
corroboration is necessary. The Court must be satisfied that there is
no tutoring or prompting.
apeal-634.2014.doc
21. On the aforesaid touchstone, reverting to the facts of the
present case, it is pertinent to note that the defence has not
disputed the fact of the death of the deceased because of burn
injuries on 06.05.2010. The crux of the matter is whether the
death was homicidal. Further, whether the deceased was in a fit
condition to make the declaration and whether the declaration was
voluntary and true.
22. It is not in dispute that Sangita sustained burn injuries at her
residential house on 29.04.2010. The plea sought to be raised on
behalf of the appellant that the deceased suffered burn injuries due
to the accidental bursting of the stove are negativated by the fact
that the scene of occurrence panchnama does not show the
presence of kerosene stove leaves apart in bursting state at the spot
of the incident. Neither accused stepped into the witness box nor
examined any witness to prove the case of the accidental bursting of
the stove.
23. On the contrary, there is evidence on record, both in the form
of oral testimony and documentary evidence, to show that a nylon
saree, and a petticoat, in burnt condition, and a plastic can
containing kerosene oil and a matchbox were found at the spot of
apeal-634.2014.doc
the incident. These articles were also sent for forensic examination.
It is seen from the report of the chemical analyser that traces of
kerosene oil were found on the burned clothes of the deceased.
Evidence of PW3 Santosh panch witness and PW6, the
Investigating Officer Gorakh Tupe, duly proves the scene of
offence panchnama Exh.19.
24. The next question is whether the deceased was in a physical
and mental condition to make a dying declaration. In this respect,
the evidence of PHC Mr Shashikant Waghule (PW1) shows that
the deceased was brought to the Sassoon General Hospital, Pune,
on 29.04.2010. On receiving information from PHC Tilekar, he
went to the Sassoon Hospital, met the Medical Officer and
requested him to certify the fitness of Sangita to record her
statement. Accordingly, the Medical Officer examined her and
found her conscious and oriented to time, place and person. He
claimed to have recorded the statement of the deceased as per her
version. He further deposed that the statement was read over to
Sangita and obtained her foot-thumb impression.
25. According to Mr Waghule (PW1), the deceased had stated
that in the last two months, her husband had started taking
excessive liquor and used to tell her that one day he would not keep
apeal-634.2014.doc
her alive. On 29.04.2010, at about 6:00 pm, her husband directed
her not to go to work, and on refusing, he threatened her that he
would see how she would go to work and that he would not keep
her alive. After that, her husband poured kerosene on her person
and set her on fire with a matchstick. When she started crying and
shouting, neighbours came to her rescue and put off the fire and
admitted her to the hospital.
26. Mr Waghule (PW1) claimed that he had recorded the
statement of the deceased in the presence of the Medical Officer.
The Medical Officer then put his endorsement certifying that the
deceased was conscious and oriented to time, place and person;
before, during and at the end of the statement.
27. Dr Raghvendra Chalikwar (PW2), the Medical Officer
attached to the Sassoon General Hospital, seeks to lend support to
the claim of Mr Waghule (PW1). Dr Chalikwar (PW2) informed
the Court that the deceased was admitted to the hospital on
29.04.2010. At the time of her admission, she had given a history
of homicidal burn injuries. He stated that the Police Head
Constable recorded the statement of Sangita in his presence as per
the narration given by her. He stated that he made an endorsement
over the dying declaration of Sangita that she was conscious and
apeal-634.2014.doc
oriented to time, place and person before, during and at the end of
the dying declaration (Exh.13). The evidence of PW1 and PW2
would demonstrate that at the time of recording dying declaration
of Sangita, she was in a condition to make the statement.
28. There is no acceptable material or circumstances to suspect
that the PHC Mr Waghule (PW1), who recorded the dying
declaration or the Medical Officer (PW2), had any animus against
the accused or were in any way interested in fabricating a dying
declaration. In such circumstances, the dying declaration recorded
by the PW1, who was performing his official duties, sufficiently
assures that the deceased was capable of making the dying
29. On the next count, as to whether the dying declaration was
voluntary and true and free from tutoring or prompting, it is seen
from the record, more particularly the hospital papers, that when
the deceased was admitted to the Sassoon Hospital, the accused was
present with her. This fact automatically rules out the possibility of
tutoring the deceased to implicate the accused falsely in the crime.
Even the evidence of PW2 shows that at the time of recording the
dying declaration of the deceased her relatives were sent out.
apeal-634.2014.doc
30. It is not in dispute that immediately after the incident, the
deceased was taken to the clinic of Dr Hariram Dahiphale (PW7).
One contradiction is brought on record from the evidence of this
witness. This contradiction, on its proof by the Investigating
Officer (PW6), is at Exh. 63. This witness had stated to the Police
while recording his statement that the deceased had told him that
she sustained burns while cooking food because of the bursting of
the stove. In this respect, the learned Sessions Judge has rightly
observed that this contradiction cannot be accepted as substantive
evidence, but it can, at the most, impeach the credit of Dr Hariram
(PW7), and no inference can be drawn from the evidence that the
dying declaration of Sangita at Exh. 13 is not truthful.
31. Similarly, the confusion created by medical case papers at
Exh.23 of Pawana Hospital shows that the deceased sustained
accidental burns. But here, we cannot ignore the evidence of PW5
Dr Ashwin, the Resident Medical Officer of Pawana Hospital, who
categorically states that at the time of admission of the deceased,
she had not given the history. Therefore, it does not amount to her
dying declaration. In this respect, the learned Sessions Judge had
rightly held that the contention of the learned defence counsel that
the first dying declaration was made by the deceased before Dr
Dahiphale (PW7) and her third dying declaration was before the
apeal-634.2014.doc
hospital authorities of Pawana Hospital was devoid of substance as
no such dying declarations were found to be made by the accused.
32. Lastly, Mr Abhishek Avachat, the learned counsel appearing
for the Appellant, submitted that the alleged incident was not pre-
mediated. The dispute ensued over a trivial matter. There is no
material to suggest that the Appellant had any intention of causing
the death of his wife. His rage had dominated his passive spirit,
and in an impulsive moment, rage had become an act of aggression.
He had no intention to commit an act which would result in the
death of his wife and, therefore, his act would fall under Section
304 Part II of the Indian Penal Code.
33. Reference in this connection was made to the following cases:
(i) Jai Prakash v/s. State (Delhi Administration)18
(ii) Kesar Singh & Anr. v/s. State of Haryana19
(iii) Haridas Bedare v/s. The State of Maharashtra20
(iv) Subhash Kumbar v/s. State of Maharashtra21
34. Mrs Mulekar, the learned Additional Public Prosecutor
appearing for the Respondent-State, made various submissions
countering the arguments put forward by the Appellant. She
20 Criminal Appeal No. 966 of 2015 decided on 18.10.2022
21 Criminal Appeal No. 744 of 2017 decided on 06.10.2022
apeal-634.2014.doc
submitted that the deceased Sangita had narrated a detailed
incident which is amply corroborated by the medical evidence
wherein she had specifically named the Appellant as a culprit.
35. We have given anxious consideration to the submissions of
the learned counsel for the parties. Also perused the Judgments
relied upon by the learned counsel for the Appellant.
36. In order to bring the act of an accused within the purview of
Section 304 Part I or Part II of the Indian Penal Code, it is not
sufficient to prove that the incident took place all of a sudden
without any premeditation, but, it is also to be proved that the
accused did not take undue advantage or did not act cruelly. In the
present case, the act of the accused of pouring the kerosene oil on
the person of the deceased, setting her ablaze and not extinguishing
the fire would speak entirely against him and demonstrates the
intention and knowledge on the part of the Appellant. The
deceased was the wife of the Appellant and was alone in the house.
The Appellant had taken undue advantage of the situation and
acted cruelly. Even if the incident in question was not
premeditated and sudden, the manner of retaliation is
disproportionate. The learned Sessions Judge in the impugned
judgment has rightly observed that the act of the accused in setting
apeal-634.2014.doc
ablaze the deceased was an intentional act for causing her death,
and it was preceded by threats emanated from him that he would
not let her alive. Thus, by no stretch of the imagination, it can be
said that the offence would not be murder punishable under
Section 302 of the Indian Penal Code.
37. We have already concluded that the dying declaration of the
deceased recorded by PW1 is truthful and voluntary and that she
was in a sound condition to give a valid statement. The learned
counsel for the Appellant was not in a position to show any
infirmity in this dying declaration, either in the form of procedure
adopted or any circumstance leading that it was not voluntary or
was given under the influence. Significantly, the Appellant has not
come with any version that he tried to rescue his wife from the
burning. Again, his act of setting the deceased ablaze and not
extinguishing the fire would speak entirely against him. Therefore,
in our overall view of the matter, we are not convinced with the
case of the defence that the accused suffered from accidental burn
injuries, and the instant case is not one of homicidal death. The
trial Court has discussed the entire evidence in detail and, in our
opinion, has reached the right conclusion that the prosecution has
been able to establish the case against the accused beyond a
reasonable doubt.
38. Resultantly, this Appeal fails and is hereby dismissed. The
order of conviction and sentence passed by the learned Sessions
Judge, Pune, in Sessions Case No. 556 of 2010, is hereby | The Bombay High Court recently upheld the murder conviction of a man observing that he did not try to extinguish the fire showing that he had the intention to murder his wife.
A division bench of Justice Nitin W. Sambre and Justice R. N. Laddha held –
“the act of the accused of pouring the kerosene oil on the person of the deceased, setting her ablaze and not extinguishing the fire would speak entirely against him and demonstrates the intention and knowledge on the part of the Appellant. The deceased was the wife of the Appellant and was alone in the house. The Appellant had taken undue advantage of the situation and acted cruelly. Even if the incident in question was not premeditated and sudden, the manner of retaliation is disproportionate”.
The prosecution’s case was that after consuming liquor, the appellant used to threaten his wife that he will not keep her alive. One day he consumed liquor and stopped his wife from going to work. When she refused, he got infuriated and poured kerosene on her and set her on fire. She suffered burn injuries on her face, chest, abdomen and thighs and died. In her dying declaration, she stated that her husband poured kerosene on her and set her ablaze.
The appellant’s defence was that his wife suffered burn injuries from the bursting of kerosene stove while cooking a meal. The sessions judge relied on the dying declaration and the witness testimonies and convicted him under Section 302 of the IPC.
Advocate Abhishek Avchat for the appellant contended that the dying declaration cannot be relied on as it was not made to a magistrate but to a police officer without any explanation. Further, the deceased was not in a fit state to make a statement as she had suffered 72% burn injuries.
Additional Public Prosecutor G. P. Mulekar said that the police head constable (PHC) who recorded the dying declaration was not the investigating officer, neither was he posted at the police station. In a murder case, a truthful dying declaration even made to the police officer and not to the magistrate is sufficient to convince the accused.
The court relied on several Apex Court judgments and reiterated that the dying declaration need not necessarily be made to a magistrate only. The essential condition is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind.
“It is for the defence to demonstrate that the Police Official has some agenda or motive to record a false statement or to fabricate the statement of the victim of the crime. Conviction of a person can be made solely on the basis of a dying declaration which inspires the confidence of the Court. If there is nothing suspicious about the declaration, no corroboration is necessary. The Court must be satisfied that there is no tutoring or prompting”.
The court noted the accused did not show any material to prove the case of accidental bursting of the stove. The evidence does not show the presence of kerosene stove let alone bursting of one at the spot of the incident, the court noted.
The PHC testified that he recorded the dying declaration in the presence of the medical officer. The medical officer testified that the deceased was conscious and oriented to time, place, and person before, during, and at the end of the declaration.
The court noted that there is no material to suspect that the PHC and the medical officer has any reason to fabricate the dying declaration.
The court further noted that when the deceased was admitted to the hospital, her husband was present with her. This automatically rules out the possibility of tutoring her to implicate him falsely in the case, the court held.
The court concluded that the dying declaration is truthful and voluntary and the deceased was in a sound condition to give a valid statement.
The court also noted that the appellant did not claim that he tried to rescue his wife from the burning. Therefore, the court did not believe the defence that it was a case of accidental death.
“The learned Sessions Judge in the impugned judgment has rightly observed that the act of the accused in setting ablaze the deceased was an intentional act for causing her death, and it was preceded by threats emanated from him that he would not let her alive. Thus, by no stretch of the imagination, it can be said that the offence would not be murder punishable under Section 302 of the Indian Penal Code”, the court concluded.
Case no. – Criminal Appeal No. 634 of 2014
Case Title – Uttam Anna Lande v. State of Maharashtra |
1. The present petitions have been filed under Section 482 Cr.P.C. on
behalf of the petitioner seeking quashing of Complaint Case Nos.
627314/2016 and 618548/2016 arising out of the proceedings initiated
CRL.M.C. 2358/2021 & CRL.M.C. 2362/2021 Page 1 of 7
under Sections 138/141 of the Negotiable Instruments Act, 1881
(hereinafter referred to as the N.I. Act). Additionally, the petitioner has
prayed for quashing of the order dated 07.04.2021 passed by the learned
Delhi, whereby his application seeking discharge/dropping of the
proceedings qua him has been dismissed.
2. Briefly stated, the facts of the instant case are that respondent No.
1/complainant filed the aforesaid complaints under Sections 138/141 N.I.
Act claiming that the cheques in question were issued in its favour by the
accused company, i.e. Daily Life Retail and Trading Pvt. Ltd., and the same,
on presentation, were dishonoured and returned with the remarks ‘account
closed’. As a result, a legal notice dated 30.07.2010 was issued and on
failure of the accused persons to clear the outstanding payment in terms of
the cheques in question, the aforesaid complaints came to be filed.
3. Learned counsel for the petitioner has sought quashing of the
complaint cases on the ground that only bald and vague allegations have
been made against the present petitioner, who was a dormant Director out
of the many Directors of the accused company. He submits that the
petitioner was not responsible for the running of day-to-day affairs of the
company. It is further stated that the petitioner was neither a signatory to
the Agreement dated 15.07.2008 executed between the complainant
company and the accused company, nor did he sign the cheques in question.
It is also submitted that the complaints are bereft of necessary ingredients
required under Section 138 N.I. Act. In support of his submissions, learned
counsel has placed reliance on the following decisions:-
i) Meenu Goyal v. Micromax Informatics Ltd. and Others reported as
CRL.M.C. 2358/2021 & CRL.M.C. 2362/2021 Page 2 of 7
ii) Sunita Palta & Ors v. M/s Kit Marketing Pvt Ltd reported as 267
iii) Dharna Goyal v. Aryan Infratech Pvt. Ltd. reported as
iv) Har Sarup Bhasin v. Origo Commodities India Pvt. Ltd. reported as
4. Learned counsel for the petitioner has further invited attention to the
order dated 10.10.2019 passed by this Court in CRL.M.C. 5107/2019,
whereby the order dated 03.09.2019 passed by the learned Metropolitan
Magistrate framing notice under Section 251 Cr.P.C. was set aside and it
was directed that a fresh reasoned order be passed within a period of eight
weeks. He also invited attention to the particulars mentioned in Form-32
along with ROC records to submit that there are other Directors of the
accused company who have not been arrayed in the complaints.
5. I have heard the learned counsel for the petitioner and gone through
the material placed on record as well as the decisions cited in support of his
submissions.
6. A perusal of the aforesaid complaints would show that the
complainant alleged that the present petitioner, who has been arrayed as
accused No. 2, had agreed to guarantee repayment of all payments payable
by the accused company in terms of the Factoring Agreement. It was also
alleged that the present petitioner along with other accused persons was
in-charge and responsible for making financial decisions of the accused
company.
7. One of the contentions raised on behalf of the petitioner is that he
was not served with any demand notice separately. However, the same does
not weigh with this Court in view of the decision in Kirshna Texport and
CRL.M.C. 2358/2021 & CRL.M.C. 2362/2021 Page 3 of 7
Capital Markets Limited v. Ila A. Agrawal and Others reported as (2015) 8
SCC 28, where the Supreme Court held as under:
“18. In our view, Section 138 of the Act does not admit of any
necessity or scope for reading into it the requirement that the
directors of the Company in question must also be issued individual
notices under Section 138 of the Act. Such Directors who are in
charge of affairs of the Company and responsible for the affairs of
the Company would be aware of the receipt of notice by the Company
under Section 138. Therefore, neither on literal construction nor on
the touchstone of purposive construction such requirement could or
ought to be read into Section 138 of the Act.”
8. On an overview of the decisions cited by the learned counsel for the
petitioner, it is noted that the reliance placed on the decision in Meenu
Goyal (Supra) is misplaced. In the said case, even as per the complainant,
it was the husband of the petitioner with whom the entire business
transaction was conducted and he alone had signed the cheque in question.
Neither in the complaint nor in the pre-summoning evidence, any allegation
was levelled against the petitioner. Insofar as the decisions in Sunita Palta
(Supra) and Har Sarup Bhasin (Supra) are concerned, the same came to be
passed in cases where the petitioners were independent non-executive
Directors. In Dharna Goyal (Supra), a Coordinate Bench of this Court had
come to the conclusion that there were no specific allegations against the
petitioner who was the CEO of the accused company. As such, none of the
decisions on which reliance is placed by the learned counsel for the
petitioner, are applicable to the facts of the present case.
9. Another contention raised on behalf of the petitioner is that as a
special condition precedent to the aforesaid Agreement, the accused
company was required to provide security cheques for the concerned
amount and it was in furtherance of the same that the cheques in question,
i.e. four cheques of Rs. 25,00,000/-, were given as security. The position of
CRL.M.C. 2358/2021 & CRL.M.C. 2362/2021 Page 4 of 7
law regarding the issue as to whether cheques in question were given as
security in a case under Section 138 N.I. Act is well-settled to the effect
that the same shall be a matter of trial. The Supreme Court in Sripati Singh
(Since Deceased) Through His Son Gaurav Singh v. State of Jharkhand and
Another reported as 2021 SCC OnLine SC 1002 has recently expounded
on the above lines. Relevant excerpt from the decision is extracted below:-
“19. …Therefore, prima facie the cheque which was taken as security
had matured for payment and the appellant was entitled to present
the same. On dishonour of such cheque the consequences
contemplated under the Negotiable Instruments Act had befallen on
respondent No. 2. As indicated above, the respondent No. 2 may have
the defence in the proceedings which will be a matter for trial. In any
event, the respondent No. 2 in the fact situation cannot make a
grievance with regard to the cognizance being taken by the learned
Magistrate or the rejection of the petition seeking discharge at this
stage.
23. …The further defence as to whether the loan had been discharged
as agreed by respondent No. 2 and in that circumstance the cheque
which had been issued as security had not remained live for payment
subsequent thereto etc. at best can be a defence for the respondent
No. 2 to be put forth and to be established in the trial. In any event,
it was not a case for the Court to either refuse to take cognizance or
to discharge the respondent No. 2 in the manner it has been done by
the High Court. Therefore, though a criminal complaint under
Section 420 IPC was not sustainable in the facts and circumstances
of the instant case, the complaint under section 138 of the N.I Act
was maintainable and all contentions and the defence were to be
considered during the course of the trial.”
10. It is also worthwhile to reproduce the view taken recently in Sunil
Todi and Others v. State of Gujarat and Another reported as 2021 SCC
OnLine SC 1174, wherein the Supreme Court was in seisin of appeals
preferred by accused/appellants against the order of the High Court,
whereby petitions seeking quashing of criminal complaints filed under
CRL.M.C. 2358/2021 & CRL.M.C. 2362/2021 Page 5 of 7
Section 138 N.I. Act were dismissed. The Court observed thus:-
“53. The test to determine if the Managing Director or a Director must
be charged for the offence committed by the Company is to determine
if the conditions in Section 141 of the NI Act have been fulfilled i.e.,
whether the individual was in-charge of and responsible for the affairs
of the company during the commission of the offence. However, the
determination of whether the conditions stipulated in Section 141 of the
MMDR Act have been fulfilled is a matter of trial. There are sufficient
averments in the complaint to raise a prima facie case against them. It
is only at the trial that they could take recourse to the proviso to Section
141 and not at the stage of issuance of process.”
11. From a reading of the judicial dicta on Section 141 N.I. Act and in
light of the discussion undertaken hereinabove, this Court is of the opinion
that the N.I. Act being a penal statute should receive strict construction.
Thus, specific averments in a criminal complaint which satisfy the
requirements of Section 141 N.I. Act are imperative. On a prima facie view
of the material placed on record in the present case, it is apparent that
specific allegations have been levelled against the petitioner. Apart from
the basic averment that the petitioner was in-charge of and responsible for
the day-to-day business of the accused company, it was further averred in
the complaint that the petitioner, being a Director, was in charge of the
financial decision-making of the accused company and he had agreed to
guarantee repayment of all amounts payable by the accused company to the
complainant in terms of the Factoring Agreement. Be that as it may, the
issue whether or not the conditions stipulated in Section 141 of the N.I. Act
have been fulfilled in the present case shall be a matter of trial in view of
the decision in Sunil Todi (Supra).
12. In the opinion of this Court, on an overall reading of the complaints,
it cannot be said that the allegations levelled are bald and vague. The
petitioner has also not placed on record any material of unimpeachable
CRL.M.C. 2358/2021 & CRL.M.C. 2362/2021 Page 6 of 7
quality in support of his claim that he was a dormant Director which issue,
alongwith other defences raised, shall be a matter of trial. Suffice it to say,
the complaint cases ought not be quashed qua the petitioner at this stage.
13. Keeping in view the aforesaid, I find no ground to entertain the
present petitions. Accordingly, both the petitions are dismissed and the
impugned order is upheld. Miscellaneous applications are disposed of as
infructuous.
14. A copy of this order be communicated electronically to the
concerned Trial Court.
CRL.M.C. 2358/2021 & CRL.M.C. 2362/2021 Page 7 of 7 | The Delhi High Court has observed that the Negotiable Instruments Act, 1881 should receive strict construction for the reason of being a penal statute. Justice Manoj Kumar Ohri also observed that specific averments in a criminal complaint which satisfies the requirements of sec. 141 of the Act are imperative in nature.Sec. 141 of the Negotiable Instruments Act talks about the offences...
The Delhi High Court has observed that the Negotiable Instruments Act, 1881 should receive strict construction for the reason of being a penal statute.
Justice Manoj Kumar Ohri also observed that specific averments in a criminal complaint which satisfies the requirements of sec. 141 of the Act are imperative in nature.
Sec. 141 of the Negotiable Instruments Act talks about the offences by companies. It states that "if a person committing an offence under sec. 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly."
The Court was dealing with two petitions filed by a dormant Director out of the many Directors of one company namely Daily Life Retail and Trading Pvt. Ltd., seeking quashing of the complaint cases and other proceedings initiated under sec. 138 and 141 of the Act.
It was also prayed that the order dated 07.04.2021 passed by the Metropolitan Magistrate (N.I. Act) of the Saket Courts be quashed whereby his application seeking discharge of the proceedings against him was dismissed.
The facts of the case are that the complainant namely M/S IFCI Factors Limited, respondent no. 1 in the matter, had filed the two complaints claiming that the cheques in question were issued in its favour by the accused company, and that they were dishonoured and returned with the remarks 'account closed'.
Resultantly, a legal notice dated July 30, 2010 was issued and on failure of the accused persons to clear the outstanding payment in terms of the cheques in question, the complaints were filed.
It was thus the case of the petitioner that only bald and vague allegations were made against him as he was a dormant Director out of the many Directors of the accused company.
It was submitted that the petitioner was not responsible for the running of day-to-day affairs of the company and that he was neither a signatory to the Agreement executed between the complainant company and the accused company, nor did he sign the cheques in question.
It was also argued that the two complaints were bereft of the necessary ingredients as required under sec. 138 of the Act.
Perusing the said complaints in question, the Court was of the view that the the complainant alleged that the petitioner had agreed to guarantee the repayment of all payments payable by the accused company in terms of the Factoring Agreement.
"From a reading of the judicial dicta on Section 141 N.I. Act and in light of the discussion undertaken hereinabove, this Court is of the opinion that the N.I. Act being a penal statute should receive strict construction. Thus, specific averments in a criminal complaint which satisfy the requirements of Section 141 N.I. Act are imperative," the Court observed.
On the facts of the case, the Court said:
"On a prima facie view of the material placed on record in the present case, it is apparent that specific allegations have been levelled against the petitioner. Apart from the basic averment that the petitioner was in-charge of and responsible for the day-to-day business of the accused company, it was further averred in the complaint that the petitioner, being a Director, was in charge of the financial decision-making of the accused company and he had agreed to guarantee repayment of all amounts payable by the accused company to the complainant in terms of the Factoring Agreement."
The Court however said that the issue whether or not the conditions stipulated in sec. 141 of the Act were fulfilled in the case shall be a matter of trial.
Opining that the allegations levelled could not be called as bald and vague, the Court dismissed the petitions.
Appearances: Advocates Amit George, Saurabh Bhargavan, Rayadurgam Bharat and Shweta Sharma appeared for the petitioner.
Title: R. VIJAY KUMAR v. M/S IFCI FACTORS LIMITED & ORS. |
2. Mr.Monal Chaglani, learned advocate has challenged
the impugned judgment and award on the ground that the
learned Tribunal has not considered the oral as well as
documentary evidence on record and has not considered
the income aspect in accordance with the judgments of
the Hon’ble Apex Court where the income tax returns
were produced before the Court. According to Mr.Chaglani,
the learned Tribunal has erred in considering the
aggregate income of the deceased for the last three years
and has not even considered the mother of the deceased
as dependent while both the parents were dependent on
the deceased son. He further submitted that the Tribunal
has totally discarded the evidence and has erred in not
considering the parents as dependent and only granted a
lump-sum amount of Rs.50,000=00, which could have
been granted even under Section 140 of the Motor
Vehicles Act. In support of the submission to consider the
parents as dependent, Mr.Chaglani has relied upon the
following judgments :
(1) Chandra and others vs. Mukesh Kumar Yadav
and others, (2021) 6 ALT 116;
(2) Indrawati and others vs. Ranbir Singh and
others, 2021 ACJ 2156;
(3) Sukhdev Prasad vs. Sunil Kumar and others,
(4) N.Jayashree and others vs. Cholamandalam MS
General Insurance Co. Ltd. and others, AIR 2021
(5) Jagruthi Shishir Banugariya and others vs. Rajvi
Kanthan Ahir and others, 2016 ACJ 905;
(6) National Insurance Company Ltd. and others vs.
Birender and others, AIR 2020 SC 434.
3. Countering the argument, Mr.Daxesh Mehta, learned
advocate appearing for the Insurance Company submitted
that the learned Tribunal has given reasons for not
considering the parents as dependent and further it has
been submitted by Mr.Mehta, relying upon the judgment
of the Division Bench of this Court in the case of
Bhavnaben Shaileshbhai Rank vs. Mahmadmkhan
Mahmadjallaudinkhan Pathan (First Appeal No.3508 of
2021, decided on 6th December 2021), that if at all the
income of the deceased has to be considered, then the
aggregate income for the last three years is required to be
assessed since there is no evidence to support the ITRs
filed by the deceased.
4. The learned Tribunal, while considering the report,
found that the applicant no.1 Sonalben alias Charmiben
Hirenbhai Jivani, i.e. widow of the deceased, had made a
declaration to affidavit Exh.23 to delete her name and she
had consented to give her share of compensation to the
applicants nos.2 and 3 respectively since stating that she
remarried after the death of her husband in an
unfortunate incident. The applicant no.2 being the mother
of the deceased examined herself at Exh.20 and she
admitted that her daughter-in-law, i.e. applicant no.1, has
remarried. In that circumstances, the learned Tribunal
observed that there were only two applicants, i.e. mother
and father of the deceased, on record and the learned
Tribunal went on to consider the issue, whether or not the
parents were entitled to the compensation, while
determining the same on the basis of the available
evidence. The learned Tribunal thus observed that the
mother of the deceased, after the marriage of the
deceased with the applicant no.1, moved to Rajkot and
the father of the deceased owned a shop at Bagsara.
Thus, the learned Tribunal observed that prior to the
accident, the sustenance of the parents was on the
income of the shop which, as per the learned Tribunal,
continued. Thus, the learned Tribunal did not find the
applicants nos.2 and 3 as the dependent on the income of
the deceased. Hence, the learned Tribunal did not deem
fit to grant any compensation under the head of
dependency loss.
5. The claimant no.2 had filed her examination-in-chief
at Exh.20. She was cross-examined, and during the course
of her cross-examination, she admitted the fact that after
the marriage, her son and daughter-in-law started staying
in Rajkot, while she volunteered that she too was staying
at Rajkot along with her son. The said evidence has been
read by the Tribunal. She further stated that her husband
was having a photocopy shop at Bagsara and she was also
having occupation along with her husband. The shop was
being run prior to the accident and it continued. The
income from the shop was used for their livelihood. She
also affirmed that her husband continued with the shop.
6. In the case of Chanda and anothers (supra), while
appreciating the facts of the case that the unfortunate
parents had lost their son aged about 32 years and the
claim compensation was filed under Section 166 of the
Motor Vehicles Act and where an issue was raised about
the parents not being the dependent as they were found
to be living separately, the Hon’ble Apex Court, while
deciding the case and referring the judgment of Magma
General Insurance Company Limited and others vs. Nanu
Ram @ Chuhru Ram and others, reported in (2018) 18 SCC
130, observed that the finding of the Tribunal that the
parents cannot be treated as dependent would run
contrary to the judgment of the Apex Court in the case of
Sarla Varma and others vs. Delhi Transport Corporation
and another, reported in (2009) 6 SCC 121.
7. In the case of Indrawati and others (supra), the Delhi
High Court, while appreciating the fact that the deceased-
son had died at the age of 23 years and was survived by
parents, who had claimed compensation, a question was
raised for the consideration as to whether the mother
would be entitled to compensation for the death of her
son. The Hon’ble Delhi High Court, while observing the
case of Mahendrakumar Ramrao Gaikwad vs. Gulabbai
Ramrao Gaikwad, reported in 2001 Cri.L.J. 2111 from the
Bombay High Court, referred to the ancient scriptures of
‘manu’ to acknowledge the recognition of the rights of
aged parents to be maintained by their children even if
the children are unable to maintain themselves. The case
was also considered to appreciate the parental consortium
and even the case of Sarla Varma (supra) was referred to
observe that the Supreme Court had laid down the three
years’ principle for computation of compensation in
respect of death of parents as well as spouse while
applying the multiplier method by further observing that
the application of those principles have not been made
subject to any condition meaning thereby that no further
evidence is required to prove the dependencies in the
case. Thus, the Delhi High Court, while considering the
settled law laid down by the Supreme Court in the above
referred judgments, held that the parents of deceased
child are considered as dependent for consideration of
8. In Sukhdev Prasad (supra), the Delhi High Court,
while considering the dependency of the parents on the
death of 25 years’ old son and referring the ratio laid
down in the case of National Insurance Company Limited
vs. Pranay Sethi and others, reported in AIR 2017 SC
(supra), Indrawati and others (supra), held that the
parents of the deceased are always considered as
dependent upon their children and are entitled to
compensation according to the principles laid down by the
Hon’ble Apex Court in the case of Pranay Sethi (supra).
9. In N.Jayashree and others (supra), the mother-in-law
of a deceased son-in-law was also considered as
10. In Birender and others (supra), in context of
dependency of the major son, it has been observed that
the legal representatives of the deceased would be
entitled to receive compensation under the conventional
heads. It was observed in paragraphs 12, 13, 14 and 15 as
“12. We have heard Mr. Amit Kumar Singh, learned
counsel for the insurance company (appellant) and
Ms. Abha R. Sharma, learned counsel for the
respondent Nos. 1 and 2. The principal issues which
arise for our consideration are as follows :
(i) Whether the major sons of the deceased who
are married and gainfully employed or earning,
can claim compensation under the Motor
Vehicles Act, 1988 (for short, ‘the Act’) ?
(ii) Whether such legal representatives are
entitled only for compensation under the
conventional heads ?
(iii) Whether the amount receivable by the legal
representatives of the deceased under the 2006
Rules is required to be deducted as a whole or
only portion thereof?
13. Reverting to the first issue - that needs to be
answered on the basis of the scheme of the Act.
Section 166 of the Act provides for filing of
application for compensation by persons mentioned
in clauses (a) to (d) of sub-section (1) thereof.
Section 166 of the Act, as applicable at the relevant
time, reads thus:
“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;
(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
(d) by any agent duly authorised by the person
injured or all or any of the legal representatives
of the deceased, as the case may be:
Provided that where all the legal
representatives of the deceased have not joined
in any such application for compensation, the
application shall be made on behalf of or for the
benefit of all the legal representatives of the
deceased and the legal representatives who
have not so joined, shall be impleaded as
respondents to the application.
(2) Every application under sub-section (1)
shall be made, at the option of the claimant,
either to the Claims Tribunal having jurisdiction
over the area in which the accident occurred or
to the Claims Tribunal within the local limits of
whose jurisdiction the claimant resides or
carries on business or within the local limits of
whose jurisdiction the defendant resides, and
shall be in such form and contain such
particulars as may be prescribed:
Provided that where no claim for compensation
under Section 140 is made in such application,
the application shall contain a separate
statement to that effect immediately before the
signature of the applicant.
(4) The Claims Tribunal shall treat any report of
accidents forwarded to it under subsection (6)
of section 158 as an application for
compensation under this Act.”
14. The legal representatives of the deceased could
move application for compensation by virtue of
clause (c) of Section 166(1). The major married son
who is also earning and not fully dependant on the
deceased, would be still covered by the expression
“legal representative” of the deceased. This Court in
Manjuri Bera (supra) had expounded that liability to
pay compensation under the Act does not cease
because of absence of dependency of the concerned
legal representative. Notably, the expression “legal
representative” has not been defined in the Act. In
Manjuri Bera (supra), the Court observed thus:
“9. In terms of clause (c) of sub-section (1) of
Section 166 of the Act in case of death, all or
any of the legal representatives of the deceased
become entitled to compensation and any such
legal representative can file a claim petition.
The proviso to said sub-section makes the
position clear that where all the legal
representatives had not joined, then application
can be made on behalf of the legal
representatives of the deceased by impleading
those legal representatives as respondents.
Therefore, the High Court was justified in its
view that the appellant could maintain a claim
petition in terms of Section 166 of the Act.
10. …..The Tribunal has a duty to make an
award, determine the amount of compensation
which is just and proper and specify the person
or persons to whom such compensation would
be paid. The latter part relates to the
entitlement of compensation by a person who
claims for the same.
11. According to Section 2(11) CPC, “legal
representative” means a person who in law
represents the estate of a deceased person, and
includes any person who intermeddles with the
estate of the deceased and where a party sues
or is sued in a representative character the
person on whom the estate devolves on the
death of the party so suing or sued. Almost in
similar terms is the definition of legal
representative under the Arbitration and
Conciliation Act, 1996 i.e. under Section 2(1)(g).
12. As observed by this Court in Custodian of
Branches of BANCO National Ultramarino v.
Nalini Bai Naique [1989 Supp (2) SCC 275] the
definition contained in Section 2(11) CPC is
inclusive in character and its scope is wide, it is
not confined to legal heirs only. Instead it
stipulates that a person who may or may not be
legal heir competent to inherit the property of
the deceased can represent the estate of the
deceased person. It includes heirs as well as
persons who represent the estate even without
title either as executors or administrators in
possession of the estate of the deceased. All
such persons would be covered by the
expression “legal representative”. As observed
in Gujarat SRTC v. Ramanbhai Prabhatbhai
[(1987) 3 SCC 234] a legal representative is one
who suffers on account of death of a person due
to a motor vehicle accident and need not
necessarily be a wife, husband, parent and
child.”
In paragraph 15 of the said decision, while adverting
to the provisions of Section 140 of the Act, the Court
observed that even if there is no loss of dependency,
the claimant, if he was a legal representative, will be
entitled to compensation. In the concurring judgment
of Justice S.H. Kapadia, as His Lordship then was, it is
observed that there is distinction between “right to
apply for compensation” and “entitlement to
compensation”. The compensation constitutes part of
the estate of the deceased. As a result, the legal
representative of the deceased would inherit the
estate. Indeed, in that case, the Court was dealing
with the case of a married daughter of the deceased
and the efficacy of Section 140 of the Act.
Nevertheless, the principle underlying the exposition
in this decision would clearly come to the aid of the
respondent Nos. 1 and 2 (claimants) even though
they are major sons of the deceased and also
earning.
15. It is thus settled by now that the legal
representatives of the deceased have a right to apply
for compensation. Having said that, it must
necessarily follow that even the major married and
earning sons of the deceased being legal
representatives have a right to apply for
compensation and it would be the bounden duty of
the Tribunal to consider the application irrespective
of the fact whether the concerned legal
representative was fully dependent on the deceased
and not to limit the claim towards conventional
heads only…..”
11. Observing the principles as laid down in the above
referred judgments and following the case of Pranay Sethi
(supra), this Court concludes that both the parents are
dependents of the deceased son and are entitled to apply
for compensation. Thus, the observations made by the
learned Tribunal become erroneous. Both the parents are
entitled for the compensation amount under the head of
dependency loss.
12. Learned advocate Mr.Dakshesh Mehta has insisted
upon to consider the average income of last three years
preceding the death of the deceased son. However,
countering the same, learned advocate Mr.Chaglani has
relied upon the judgments in the cases of Pranay Sethi
(supra); Sangita Arya and others vs. Oriental Insurance
Company Limited and others, reported in AIR 2020 SC
2877; Sheela Devi and others vs. Sumit Kumar and others
(First Appeal No.1080 of 2021, decided on 18.04.2022, by
Hon’ble High Court of Allahabad); and The New India
Assurance Company Limited vs. Salmabibi Jainulabedin
Doi (First Appeal No.96 of 2022, decided on 03.03.2022,
by a Coordinate Bench of this Hon’ble Court).
13. In the case of Bhavnaben Shaileshbhai Rank (supra),
relied upon by Mr.Mehta, the observations made by the
Division Bench of this Court is to the effect that the safe
and proper course is to take into consideration the
average income of the last three years preceding the
death, which would indicate the average income of the
deceased as the earning for the last three years prior to
his death. While that observations were made in context
of the circumstances noted by the Division Bench placing
reliance on the judgment of the Hon’ble Apex Court in the
case of ICICI Lombard General Insurance Company Limited
vs. Ajay Kumar Mohanty and another, reported in (2018) 3
SCC 686, wherein it was indicated that it would be apt,
appropriate and safe to take the average income,
inasmuch as in a given case there may be situation where
due to unforeseen circumstances, the income for the last
year could either be less or abysmally on the lower side.
Thus, in that circumstances, the Division Bench had
considered it safe to consider the average income of the
last three years preceding the death of the deceased.
However, a reference is required to be made of the case of
Pranay Sethi (supra) to clarify that while assessing the fact
that whether the deceased was self-employed or had a
fixed salary without the provision for annual increment
etc., it was observed that the Court would take the actual
income at the time of the death and the departure is
permissible only in rare and exceptional cases involving
special circumstances.
14. The very ratio has been adopted in Pranay Sethi’s
case (supra) while considering the aspect of addition
towards the future prospective income of the deceased. In
Sangita Arya and others (supra), the Hon’ble Apex Court
considered the ITRs filed prior to the death of the
deceased which reflects the income of the deceased and
following the case of Sangita Arya and others (supra), the
Hon’ble High Court of Allahabad, in the case of Sheela
Devi and others (supra), and this Hon’ble High Court in the
case of Salmabibi Jainulabedin Doi (supra), has deprecated
the method of assessing the income on the basis of the
aggregate income of last three years and both the Hon’ble
High Court of Allahabad and this Hon’ble Court has thus
considered to assess the income based on the latest
income tax returns to consider the computation of income
and also such income tax returns are considered to be the
base for awarding the future prospective income.
15. Here in this case, the date of accident is 12.10.2006,
whereas as per Exh.32, the ITR return for the Assessment
Year 2006-07 (i.e. for the period from 01.04.2005 to
30.03.2006) was filed on 10.10.2006, i.e. two days prior to
the accident, which shows the income of the previous
year. The income so reflected in Exh.32 is prior to the
death of the deceased, i.e. the income of the earlier year
was assessed. Hence, Exh.32 is the latest and the last
prior to the death of the deceased. Hence, Exh.32 is
required to be considered to assess the income as well as
the future prospective income. As per Exh.32, the yearly
income assessed is Rs.1,05,800=00. Thus, deducting the
income tax of Rs.592=00, the aggregate amount of
Rs.1,05,000=00 per annum would be considered as the
actual income of the deceased and 40% rise in future
prospective income would be considered taking into
consideration the age of the deceased at the time of the
accident as 27 years. Hence, Rs.42,000=00 is added to
the same. Thus, the dependency income would come to
Rs.1,47,000=00 with a multiplier of 17, that is, the total
amount that comes under the head of dependency income
to the parents would be Rs.24,99,000=00. Taking into
consideration total number of dependents, 1/3rd amount
is required to be deducted as personal expenses of the
deceased. Hence, deducting Rs.8,33,000=00 towards the
personal expenses of the deceased, the dependency loss
would come to Rs.16,66,000=00.
16. The chart showing the compensation payable to the
claimants/appellants is as under :
Income of the Rs. 1,05,000=00
Multiplier of 17 Rs.24,99,000=00
(deceased was (Rs.1,47,000 x 17)
1/3rd deduction Rs.16,66,000=00
towards personal (24,99,000-8,33,000)
Funeral and other Rs. 15,000=00 Rs. 1,10,000
17. Both the parents would be entitled to consortium
money in accordance with the judgment in the case of
Magma General Insurance Company Limited and others
(supra). Hence, the total amount under the head of
consortium would be Rs.80,000=00, Rs.15,000=00 under
the head of loss to estate and Rs.15,000=00 towards the
funeral and other misc. expenses following Pranay Sethi’s
18. Thus, in toto, the claimants are entitled to receive
Rs.17,76,000=00 as compensation. The Insurance
Company is directed to deposit the said amount within a
period of ten weeks from the date of receipt of writ of this
order. It is further directed that from the date of
application to the date of the award of the learned
Tribunal dated 30th June 2018, the said amount shall be
deposited with 9% interest per annum, and from 1 st July
2018 till the date of this order, the said amount shall be
deposited with 7.5% interest per annum.
19. The First Appeal is allowed in part to the aforesaid | The Gujarat High Court has held that an income tax return (ITR) filed prior to the death of the assessee is the basis for computation of loss of future income, including future prospects. The single bench of Justice Gita Gopi has observed that both the parents are dependents of the deceased son and are entitled to apply for compensation. Both the parents are entitled to...
The Gujarat High Court has held that an income tax return (ITR) filed prior to the death of the assessee is the basis for computation of loss of future income, including future prospects.
The single bench of Justice Gita Gopi has observed that both the parents are dependents of the deceased son and are entitled to apply for compensation. Both the parents are entitled to the compensation amount under the head of dependency loss.
The appellant has challenged the judgement and award passed by the Motor Accident Claims Tribunal. The appellant contended that the Tribunal has not considered the oral as well as documentary evidence on record and has not considered the income aspect in accordance with the judgments of the Apex Court where the income tax returns were produced before the Court.
The appellant contended that the tribunal had erred in considering the aggregate income of the deceased for the last three years and had not even considered the mother of the deceased as dependent while both the parents were dependent on the deceased son. The Tribunal has totally discarded the evidence and has erred in not considering the parents as dependent and only granted a lump-sum amount which could have been granted even under Section 140 of the Motor Vehicles Act.
The insurance company submitted that the Tribunal has given reasons for not considering the parents as dependent. If at all the income of the deceased has to be considered, then the aggregate income for the last three years is required to be assessed since there is no evidence to support the ITRs filed by the deceased.
The date of the accident is 12.10.2006. was filed on 10.10.2006, i.e., two days prior to the accident, which shows the income of the previous year. The income was prior to the death of the deceased, i.e., the income of the earlier year was assessed. Hence, the ITR was the latest and the last prior to the death of the deceased.
The court noted that the ITR was required to be considered to assess the income as well as the future prospective income. As per the ITR, the yearly income is assessed. Taking into consideration the total number of dependents, 1/3rd of the amount is required to be deducted as personal expenses of the deceased.
The court held that the claimants are entitled to receive compensation. The insurance company is directed to deposit the amount within a period of ten weeks.
The court directed that from the date of application to the date of the award of the Tribunal, the amount shall be deposited with 9% interest per annum, and from 1st July 2018 till the date of the order, the amount shall be deposited with 7.5% interest per annum.
Case Title: Sonalben Alias Charmiben Hirenbhai Jivani Versus Naranbhai Chananbhai Babariya
Counsel For Appellant: Advocate Monal S Chaglani
Counsel For Respondent: Advocate Dakshesh Mehta |
1. This appeal has been preferred by the claimants-appellants
against the judgment and award dated 24.08.2021 passed by learned
(hereinafter referred to as ‘Tribunal’) in M.A.C.P. No. 116 of 2018
(Roop Lal and Another Vs. Suresh Kumar Yadav and others), whereby
the learned Tribunal awarded a sum of Rs.1,80,000/- as compensation
to the claimants with interest at the rate of 7.5% per annum.
2. The claimants-appellants have preferred this appeal for
enhancement of quantum.
3. The brief facts of the case are that a claim petition was filed
before the learned Tribunal by the claimants-appellants with the
averments that on 18.03.2018 claimant-appellant no.1, Roop Lal was
walking with his son on Kakvan Road within the jurisdiction of police
station Bilhaur Districct Kanpur Nagar. At that time, a truck bearing
no. U.P.93 BT 4990 who was being driven very rashly and negligently
by its driver, hit the son of the appellant no.1 from behind due to
which he fell on the road and front wheel of the truck ran over him.
Appellant no.1’s son sustained fatal injuries and died on the spot. The
deceased was a child of aged about 7 years.
4. The respondents filed their respective written statements.
after considering the evidence on record, awarded
Rs.1,80,000/- to the appellants-claimants who are deceased’s father
and mother respectively.
5. Aggrieved mainly with the compensation awarded, the
appellants preferred this appeal.
6. Heard Mr. Mohd. Naushad Siddiqui, learned counsel for the
appellants, Mr. Vipul Kumar, learned counsel for the respondent no.3
and Mr. Shreesh Srivastava, learned counsel for the respondent nos.1
& 2. Perused the record.
7. The accident is not in dispute. The issue of negligence has been
decided in favour of the appellants herein. The Insurance Company
has not challenged the liability imposed on it by the Tribunal. The
only issued to be decided is the quantum of compensation.
8. This is a claimants appeal, claiming enhancement of award for
the death of a child who was 07 years of age at the time of his death.
Learned counsel for the appellants has submitted that deceased was a
brilliant student and he had very bright future. This aspect is not
considered by the Tribunal. It is also submitted by learned counsel for
the appellants that the notional income of the deceased is taken
Rs.15,000/- per annum by the Tribunal. It is next submitted that
learned Tribunal has held that the contribution of the deceased
towards his family was only assumed as 1/2 of his income and in this
way the Tribunal has awarded only 1/2 of his income as
compensation, which is not just and proper.
9. Per contra, learned counsel for the Insurance Company has
submitted that the compensation awarded by the Tribunal is just and
proper and the judgment and award passed by Tribunal also does not
suffer from any such infirmity or illegality which may call for any
this court.
10. The learned counsel for the appellants has contended that the
award is bad and relied on decision of this Court and Apex Court in
Kishan Gopal and another v. Lala and others, 2013 (101) ALR 281
(SC) = 2013 (131) AIC 219 = 2014 (1) AICC 208 (SC) and Manju
Devi's case, 2005 (1) TAC 609 = 2005 AICC 208 (SC) relied by this
Court in its recent decision of this Court in United India Insurance
Company Limited. Vs. Mumtaz Ahmad and Another, 2017 (2) AICC
"6. Sri Ram Singh has heavily relied on the decision in the case of
Kishan Gopal and another v. Lala and others, 2013 (101) ALR
281 (SC) = 2013 (131) AIC 219 = 2014 (1) AICC 208 (SC) and
Manju Devi's case, 2005 (1) TAC 609 = 2005 AICC 208 (SC). It
goes without saying the notional figure fixed by the Apex Court
since Manju Devi's judgment has been consistently Rs.2,25,000 for
children below the age of 15 years. I think that is just and proper
and hence, the amount requires to be enhanced from Rs.1,57,000
to Rs.2,25,000 with 6% be recovered from the owner. The appeal is
partly allowed. The cross-objection is also partly allowed."
11. The judgment of Kisan Gopal (Supra) cannot be made
applicable to the facts of this case as in this case the apex court did not
deduct any amount towards personal expenses.
12. Recently, the Hon’ble Apex Court has decided the controversy
ans settled the law regarding the death of a child in Kurvan Ansari @
Kurvan Ali and another Vs. Shyam Kishore Murmu and another,
2021 (4) TAC 673 (Supreme Court). In this case, the Hon’ble Apex
Court has stated that in spite of repeated directions, Scheduled-II of
Motor Vehicles Act, 1988 is not yet amended. Therefore, fixing
notional income of Rs.15,000/- per annum for non earning members is
not just and reasonable. It is further stated by the Apex Court that in
view of the judgments in the cases of Puttamma and others Vs. K.L.
Narayana Reddy and another, 2014 (1) TAC 926 and Kishan Gopal
and another v. Lala and others, 2013 (4) TAC 5. It is a fit case to
increase the notional income by taking into account the inflation,
devaluation of the rupees and cost of living.
13. With the aforesaid observations, the Hon’ble Apex Court took
the notional income of the deceased at Rs.25,000/- per annum, hence
we are of the considered view that notional income of the deceased
must be assumed Rs.25,000/- per annum as he was non-earning
member. Accordingly, when the notional income is multiplied with
applicable multiplier ‘15’ as prescribed in Scheduled-II for the claims
under Section 163-A of the Motor Vehicles Act, 1988, it comes to
Rs.3,75,000/- towards loss of dependency. The appellant nos.1 & 2
are also entitled to a sum of Rs.40,000/- each towards filial
consortium and Rs.15,000/- funeral expense. Hence, the appellant
nos.1 and 2 are entitled to the following amount towards
(i) Loss of Dependency : 25,000/- X 15 = Rs.3,75,000/-
(ii) Filial consortium : 40,000/- X 2 = Rs.80,000/-
14. We hold that in view of the latest decision of the Apex Court in
National Insurance Co. Ltd. Vs. Mannat Johal and Others, 2019 (2)
T.A.C. 705 (S.C.), the appellant nos.1 and 2 shall be entitled to the
rate of interest as 7.5% per annum from the date of filing the claim
15. In view of the above, the appeal is partly allowed. Judgment
and award passed by the Tribunal shall stand modified to the aforesaid
extent. The respondent-Insurance Company shall deposit the amount
within a period of 08 weeks from today with interest at the rate of
7.5% from the date of filing of the claim petition till the amount is
deposited. The amount already deposited be deducted from the
amount to be deposited. | Referring to a Supreme Court's Judgment delivered in 2021, the Allahabad High Court has observed that fixing notional income at Rs.15,000/- per annum for a family's non-earning members is not just and reasonable.The Bench of Justice Dr. Kaushal Jayendra Thaker and Ajai Tyagi was hearing an appeal filed by the parents of a 7-year-old deceased boy, seeking enhancement of...
Referring to a Supreme Court's Judgment delivered in 2021, the Allahabad High Court has observed that fixing notional income at Rs.15,000/- per annum for a family's non-earning members is not just and reasonable.
The Bench of Justice Dr. Kaushal Jayendra Thaker and Ajai Tyagi was hearing an appeal filed by the parents of a 7-year-old deceased boy, seeking enhancement of quantum, against Motor Accident Claims Tribunal's order awarding Rs.1,80,000 as compensation with interest at the rate of 7.5% per annum.
The matter in brief
In March 2018, claimant Roop Lal was walking with his son and at that time, a truck, being driven very rashly and negligently by its driver, hit the son of the appellant from behind due to which he fell on the road and front wheel of the truck ran over him.
The 7-year-old boy sustained fatal injuries and died on the spot. Thereafter, in the Motor Accident Claim, filed by the appellant/claimant, a sum of Rs.1,80,000 as compensation was awarded. Feeling aggrieved by the same, the father moved to High Court.
The accident was not in dispute. The issue of negligence had been decided in favor of the appellants/claimant and the Insurance Company did not challenge the liability imposed on it by the Tribunal. The only issue left to be decided was the quantum of compensation.
Court's observations
At the outste, the Court referred to the Supreme Court's ruling in the case of Kurvan Ansari alias Kurvan Ali & Anr. v. Shyam Kishore Murmu & Anr. LL 2021 SC 655 wherein the Court had decided the controversy and settled the law in the case of the death of a child.
"In this case, the Hon'ble Apex Court has stated that in spite of repeated directions, Scheduled-II of Motor Vehicles Act, 1988 is not yet amended. Therefore, fixing notional income of Rs.15,000/- per annum for non-earning members is not just and reasonable," the Court observed.
It may further be noted that the Apex Court in the Kurvan Ansari case had further observed that in view of the judgments in the cases of Puttamma and others Vs. K.L. Narayana Reddy and another, 2014 (1) TAC 926 and Kishan Gopal and another v. Lala and others, 2013 (4) TAC 5, it is a fit case to increase the notional income by taking into account the inflation, devaluation of the rupees and cost of living.
"With the aforesaid observations, the Hon'ble Apex Court took the notional income of the deceased at Rs.25,000/- per annum, hence we are of the considered view that notional income of the deceased must be assumed Rs.25,000/- per annum as he was non-earning member," the High Court finally held as it enhanced the compensation to Rs. 4,70,000 with interest at the rate of 7.5% from the date of filing of the claim petition till the amount is deposited.
The respondent-Insurance Company has been directed to deposit the amount within a period of 08 weeks from today with interest at the rate of 7.5% from the date of filing of the claim petition till the amount is deposited.
Case title - Roop Lal and Anr v. Suresh Kumar Yadav and 2 Ors.Case citation: (AB) 13 |
Civil Appeal No. 4567 of 1989.
From the Judgment and Order dated 22.12.1988 of the Punjab & Haryana High Court in C.R. No. 1327 of 1987.
Gopal Subramanium, N.D. Garg and Rajiv K. Garg for the Appellant.
J.K. Nayyar, Rajeev Sharma and S.K. Bisaria for the Respondent.
The short question for consideration in this appeal at the instance of the landlord in a proceeding for eviction under the East Punjab Urban Rent Restriction Act is as to whether the appellant before us is a specified landlord as defined in section 2(hh) of the Act.
The High Court has decided against the landlord by relying upon the decision of this Court in the case of D.N. Malhotra vs Kartar Singh, [1988] 1 SCC 656.
When this matter came before a 2 Judge Bench on 16.8.1988 the following order was made: "This matter may be listed before a Bench of three Hon 'ble Judges two weeks hence for consideration of the question in the light of the decision of this Court in D.N. Malhotra vs Kartar Singh, [1988] 1 SCC 656." Section 2(hh) of the Act defines 'specified landlord ' to mean: 95 "a person who is entitled to receive rent in respect of a building on his own account and who is holding or has held an appointment in a public service or post in connection with the affairs of the Union or of a State.
" It is not disputed that the appellant was Reader to the Sessions Judge of Sangrur from where he retired on 30th of September, 1981.
He was thus holding a post in connection with affairs of a State.
He was member of a Mitakshara family and the house in question was tenanted out to the respondent by his father in July, 1982, and upon his father dying in the following month the tenant attorned to the appellant.
Section 13 A of the Act provides: "Where a specified landlord at any time, within one year prior to or within one year after the date of his retirement or after his retirement but within one year of the date of commencement of the East Punjab Urban Rent Restriction (Amendment) Act, 1985, whichever is later, applies to the Controller along with a certificate from the authority competent to remove him from service indicating the date of his retirement and his affidavit to the effect that he does not own and possess any other suitable accommodation in the local area in which he intends to reside to recover posses sion of his residential building or scheduled building, as the case may be, for his own occupation, there shall accrue, on and from the date of such application to such specified landlord, notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force or in any contract (whether expressed or implied), custom or usage to the contrary, a right to recover immediately the possession of such residential building or scheduled building or any part or parts of such building if it is let out in part or parts: . . ." The amendment came into force with effect from 16.11.1985.
The appellant applied for eviction on 13.5.1986.
Thus, within one year of the enforcement of the Amending Act of 1985, the application for eviction was filed following the procedure laid down under the Act.
Appellant 's conten tion which has been rejected in the Courts below has been that all the ingredients of the definition of 'specified landlord ' are satisfied and he should, therefore, have been admitted to be a 96 specified landlord and given the benefit of the special procedure.
The High Court relied upon the following observa tions in Malhotra 's case: "It has been urged before us on behalf of the respondent at the relevant time i.e. after retirement of the respondent from service within one year of the date of commencement of the said Act he is the landlord of the appel lant and as such he falls within the defini tion of section 2(hh) of the said Act and he becomes a specified landlord.
This submission, in our view, cannot be sustained inasmuch as the words 'specified landlord ' as used in section 2(hh) refer to the person in service of the Union who is a landlord at the time of his retirement from the public service or post in connection with the affairs of the Union or of State.
It cannot in any manner include an ex serviceman who was not a specified landlord qua the tenant and the premises on or before the date of his retirement from the service of the Union.
This has been very succinctly held by this Court in the case of Mrs. Winifred Ross vs Mrs. Ivy Fonseca, which has been referred to hereinbefore.
" Malhotra 's case in terms relied upon an earlier decision of this Court in Mrs. Winifred Ross vs Mrs. Ivy Fonseca, [1984] 1 SCC 288 in support of its view.
It is not disputed that on the ratio laid down by this Court in the two decisions referred to above the High Court had come to the correct conclusion that on the facts the appellant could not be a specified landlord.
It is now for consideration whether the cases of Winifred Ross and D.N. Malhotra, have been correctly decided.
Winifred Ross, case was considering section 13A of the Bombay Rents, Hotel & Lodging Houses Rates Control Act of 1947.
Section 13A had been brought into the Act in 1975.
The said section provided: "Notwithstanding anything contained in this Act, (a) a landlord who is a member of the armed forces of the Union, or who was such member and is duly retired (which term shall include premature retirement), shall be enti tled to recover possession of any premises, on the ground that the premises are bona fide required by him for occupation by himself or any member of his family (which 97 term shall include a parent or other relation ordinarily residing with him and dependent on him); and the Court shall pass a decree for eviction on such ground if the landlord, at the hearing of the suit produces a certificate signed by the Head of his Service or his Commanding Officer to the effect that (i) he is presently a member of the armed forces of the Union or he was such member and is now a retired ex serviceman; (ii) . . . . (b) . . . . " Dealing with this provision this Court said: "The essential requirement is that he should have leased out the building while he was a member of the Armed Forces.
His widow can also recover the premises of which she is or has become the landlord under clause (b) subject to fulfilment of the conditions.
Having regard to the object and purposes of the Act and in particular Section 13 A 1, it is difficult to hold that Section 13 A 1 can be availed of by an ex member of the Armed Forces to recover from a tenant possession of a building which he acquires after his retirement.
Acceptance of this argument will expose the very Section 13 A 1 of the Act to a successful challenge on the ground of violation of Article 14 of the Constitution for it that were so, a retired military officer who has no house of his own can purchase any building in the occupation of a tenant after his retirement, successfully evict a tenant living in it on the ground that he needs it for his use, then sell it for a fancy price and again because he has no house of his own, he can again acquire another building and deal with it in the same way.
There appears to be n0 restriction on the number of times he can do so.
It was argued that he would not be able to get the requisite certificate under the Act more than once.
A reading of Section 13 A 1 of the Act shows that the certificate should show that the person concerned has been a member of the Armed Forces and that he does not possess any other suitable residence in the local area where he or members of his family can reside.
Those 98 conditions being satisfied the certificate cannot be refused.
A liberal construction of Section 13 A1 of the Act as it is being pressed upon us, would also enable unscrupu lous landlords who cannot get rid of tenants to transfer their premises to ex military men, as it has been done in this case in order to avail of the benefit of the said section with a private arrangement between them.
It is also possible that a person who has retired from the Armed Forces may after retirement lease out a premises belonging to him in favour of a tenant and then seek his eviction at his will under Section 13 A 1 of the Act . . . " A little later in the same decision this Court said: "Since a liberal interpretation of Section 13 A 1 of the Act is likely to expose it to a successful challenge on the basis of Article 14 of the Constitution, it has to be read down as conferring benefit only on those members of the Armed Forces who were landlords of the premises in question while they were in serv ice even though they may avail of it after their retirement.
Such a construction would save it from the criticism that it is discrim inatory and also would advance the object of enacting it, namely, that members of the Armed Forces should not while they are in service feel worried about the difficulties of a long drawn out litigation when they wish to get back the premises which they have leased out during their service.
" In Malhotra 's case, this Court was called upon to con sider section 13A of the very Act with which we are now con cerned.
On the basis of the ratio in Winifred Ross ' case, this Court came to the conclusion that until the landlord satisfied the test that he was a landlord qua the premises and the tenant at the time of his retirement or discharge from service, he would not be entitled to the benefit of section 13A of the Act.
It is not disputed that the appellant retired on 30th of September, 1981.
On the finding the appellant is right in his submission that this was not a case of transfer with an oblique motive but as the property belonged to a Mitakshara father, upon his death the property has come to his hands.
This feature which is different from the facts appearing in the two reported decisions, however, would not persuade us to give a different meaning to the definition in section 2(hh).
In both the cases, for good reason this Court came to the conclusion that the public officer 99 should have been a landlord of the premises in question while in service.
Admittedly, the appellant was not the landlord before he superannuated.
We are of the view that the opinion of this Court in Winifred Ross ' case is unassailable and, therefore, the appellant would not be entitled to the benefit of the spe cial procedure in section 13A of the Act.
The appeal fails and is dismissed.
Parties are directed to bear their own costs.
P.S.S. Appeal dismissed. | Section 13A of the East Punjab Urban Rent Restriction Act, 1949 lays down the procedure for a 'specified landlord ' to seek immediate recovery of possession of his residential building at any time within one year prior to or within one year after the date of his retirement or after his retire ment but within one year of the date of commencement of the East Punjab Urban Rent Restriction (Amendment) Act, 1985, whichever is later.
Section 2(hh) of the Act defines 'speci fied landlord ' to mean a person who is entitled to receive rent in respect of a building on his own account and who is holding or has held an appointment in a public service or post in connection with the affairs of the Union or of a State.
The appellant, who was holding a post in connection with the affairs of the State, had retired on September 30, 1981.
He was member of a Mitakshara family.
The house in question was tenanted out to the respondent by his father in July 1982 and upon his father dying in the following month the tenant attorned to the appellant.
The amendment came into force with effect from November 16, 1985.
The appellant applied for eviction on May 13, 1986.
He sought benefit of the special procedure laid down in section 13A of the Act on the ground that all the ingredients of the definition of 'speci fied landlord ' were satisfied.
The courts below rejected the contention.
The High Court relying on the ratio laid down by this Court in D.N. Malhotra vs Kartar Singh, [1988] 1 SCC 656 and Mrs. Winifred Ross vs Mrs. Ivy Fonseca, [1984] 1 SCC 288 held that the appellant could not be a 'specified land lord '.
Dismissing the appeal by special leave, HELD: Until the landlord satisfies the test that he was a landlord qua the premises and the tenant at the time of his retirement or dis 94 charge from service.
he can not be a 'specified landlord ' as defined in section 2(hh) of the East Punjab Urban Rent Restric tion Act, 1949.
[98F, 94F] In the instant case, the appellant was not the landlord of the premises in question before he superannuated.
He would not, therefore, be entitled to the benefit of the special procedure laid down in section 13A of the Act.
[99A B] D.N. Malhotra vs Kartar Singh, [1988] 1 SCC 656 and Mrs. Winifred Ross vs Mrs. Ivy Fonseca, [1984] 1 SCC 288, ap plied. |
The petitioners in these petitions are before this Court
seeking a prayer that the order of conviction dated 25.11.2010,
passed in S.C.No.2/2007, by the District and Sessions Judge,
Chikkaballapura, for different offences to run concurrently.
Petitioners are convicted - accused Nos.1 and 2.
2. Heard Sri M.R.Nanjunda Gowda, learned counsel for the
petitioners and Smt.K.P.Yashodha, learned High Court Government
Pleader appearing for the respondent in both the cases.
3. Brief facts of the case that leads the petitioners to this
Court in the subject petitions as borne out from the pleadings are
On 03.09.2002, as crime comes to be registered against
accused Nos.1 to 3 for the offences punishable under Sections 302,
201, 120B, r/w. 34 of the IPC. The concerned Court took
cognizance of the offences in C.C.No.442/2002 and after the case
being committed to the Court of Sessions, the Sessions Judge
registers a case in S.C.No.45/2003. The Sessions Court in terms of
its order dated 09.12.2010, convicts accused Nos.1 and 2, the
petitioners herein and sentenced to undergo life imprisonment and
pay fine of Rs.50,000/- for offence punishable under Section 302 of
the IPC and in default of payment of fine, they shall undergo further
rigorous imprisonment for a period of six months. They were also
convicted and sentenced to undergo rigorous imprisonment for a
period of ten years and payment of Rs.50,000/- each and in default
to pay fine, to undergo further rigorous imprisonment for a period
of six months for the offence punishable under Section 394 of the
IPC. The petitioners are now knocking at the doors of this Court
contending that they are in prison since 22.09.2002, which is more
than twenty years as of now and are entitled to seek remission or
premature release in terms of the Rules and guidelines. What is
coming in the way is the absence of a direction by the concerned
Court that the sentences should run concurrently. Therefore,
notwithstanding the petitioners completing twenty years in prison
are not entitled to seek remission on the ground that the sentence
for offence punishable under Section 394 of the IPC, is in operation.
4. I have given my anxious consideration to the submission
made by the learned counsel for the petitioners and the learned
Additional Government Advocate representing the respondent.
5. The issue in the lis is in the absence of a direction in the
order of sentence, not indicating whether the offences would run
concurrently or separately and whether the relief could be granted
to the petitioners.
6. Before considering the issue qua the facts of the case, I
deem it appropriate to notice the line of law as is laid down by the
constitutional Courts in the following cases:
i. RAMESH CHILWAL @ BAMBAYYA VS. STATE OF
“3. The learned counsel appearing for the appellant has
brought to our notice that the trial Judge has convicted and
sentenced the appellant in the following order:
(i) The accused Ramesh Chilwal alias Bambayya is convicted in
Case Crime No. 580 of 2004, Special Sessions Triable Case No.
28 of 2005 under Section 302 IPC and sentence of the
rigorous imprisonment for life and a fine of Rs 1,00,000
(Rupees one lakh). In default for the payment of fine, he shall
also serve a simple imprisonment for a period of six months.
Out of this rupees one lakh, Rs 50,000 (Rupees fifty thousand)
is awarded as compensation to the family of the deceased.
(ii) The accused Ramesh Chilwal alias Bambayya is convicted
in Case Crime No. 580 of 2004, Special Sessions Triable Case
No. 28 of 2005 under Sections 2/3[3(1)], Gangsters Act and
sentence for the rigorous imprisonment of 10 (ten) years and
a fine of Rs 50,000 (Rupees fifty thousand). In default for the
payment of fine, he shall also serve a simple imprisonment for
a period of four months. Out of this Rs 50,000 (Rupees fifty
thousand), rupees twenty-five thousand is awarded as
compensation to the family of the deceased.
(iii) Accused Ramesh Chilwal alias Bambayya is convicted in
Case Crime No. 737 of 2004, Sessions Triable Case No. 118 of
2005 under Section 27 of the Arms Act and sentence for the
rigorous imprisonment of 7 (seven) years and a fine of Rs
25,000 (Rupees twenty-five thousand). In default for the
payment of fine, he shall also serve a simple imprisonment for
a period of four months. Out of this Rs 25,000, half of the
amount is awarded as compensation to the family of the
By the impugned order [Ramesh Chilwal v. State of
Uttarakhand, Criminal Appeal No. 15 of 2006, order dated
11-11-2011 (Utt)] , the said conviction and sentences were
confirmed by the High Court.
4. Since this Court issued notice only to clarify the sentence
awarded by the trial Judge, there is no need to go into all the
factual details. We are not inclined to modify the sentence.
However, considering the fact that the trial Judge has awarded
life sentence for an offence under Section 302, in view of
Section 31 of the Code of Criminal Procedure, 1973, we make
it clear that all the sentences imposed under IPC, the
Gangsters Act and the Arms Act are to run concurrently.
5. While confirming the conviction, we clarify that all the
sentences are to run concurrently. To this extent, the
judgment of the trial court as affirmed by the High Court is
modified. The appeals are disposed of accordingly.”
“7. So, the short question, which arises for consideration in
this appeal, is whether the courts below were justified in
convicting the appellant.
8. Heard the learned counsel for the parties.
9. The learned counsel for the appellant (accused) while
assailing the legality and correctness of the impugned order
argued only one point.
10. The only submission made by the learned counsel for the
appellant was that the Judicial Magistrate while passing the
order of sentence erred in not mentioning therein as to
whether the two punishments awarded to the appellant under
Section 279 and Section 304-A IPC would run concurrently or
consecutively.
11. The learned counsel pointed out that under Section 31 of
the Code of Criminal Procedure, 1973 (hereinafter referred to
as “the Code”), it is mandatory for the Magistrate to specify as
to whether the sentences awarded to the accused would run
concurrently or consecutively when the accused is convicted
for more than one offence in a trial.
12. The learned counsel urged that since in this case the
appellant was awarded two years' rigorous imprisonment with
a fine amount of Rs 1000 and in default of payment of fine
amount, to further undergo simple imprisonment for one
month under Section 304-A IPC and six months' rigorous
imprisonment with a fine amount of Rs 1000 and in default of
payment of fine amount, to further undergo simple
imprisonment for 15 days under Section 279 IPC, these two
punishments should have been directed to run concurrently as
provided under Section 31(1) of the Code.
13. The learned counsel for the State, however, could not find
fault in the legal position, which governs the issue, and, in our
view, rightly.
14. Having heard the learned counsel for the parties and on
perusal of the record of the case, we are inclined to allow the
appeal and modify the order of the Magistrate dated 12-5-
2017, as indicated under.
15. In our considered opinion, it was necessary for the
Magistrate to have ensured compliance with Section 31 of the
Code when she convicted and sentenced the appellant for two
offences in a trial and inflicted two punishments for each
offence, namely, Section 279 and Section 304-A IPC.
16. In such a situation, it was necessary for the Magistrate to
have specified in the order by taking recourse to Section 31 of
the Code as to whether the punishment of sentence of
imprisonment so awarded by her for each offence would run
concurrently or consecutively.
17. Indeed, it being a legal requirement contemplated under
Section 31 of the Code, the Magistrate erred in not ensuring
its compliance while inflicting the two punishments to the
18. If the Magistrate failed in her duty, the Additional Sessions
Judge and the High Court should have noticed this error
committed by the Magistrate and accordingly should have
corrected it. It was, however, not done and hence interference
is called for to that extent.
19. As mentioned above, the appellant was convicted and
accordingly punished with a sentence to undergo two years'
rigorous imprisonment with a fine amount of Rs 1000 and in
default of payment of fine amount to further undergo one
month's simple imprisonment under Section 304-A and 6
months' rigorous imprisonment with a fine amount of Rs 1000
and in default of payment of fine amount to further undergo
15 days' simple imprisonment under Section 279 IPC.
20. In our view, having regard to the facts and circumstances
of the case and keeping in view the nature of controversy
involved in the case, both the aforementioned sentences
awarded by the Magistrate to the appellant would run
“6. We have heard the learned counsel for the parties at
considerable length. Section 31 CrPC which deals with
sentences in cases of conviction of several offences at one trial
“31. Sentence in cases of conviction of several offences at
one trial.—(1) When a person is convicted at one trial of
two or more offences, the court may, subject to the
provisions of Section 71 of the Penal Code, 1860,
sentence him for such offences, to the several
punishments prescribed therefor which such court is
competent to inflict; such punishments when consisting of
imprisonment to commence the one after the expiration
of the other in such order as the court may direct, unless
the court directs that such punishments shall run
concurrently.
(2) In the case of consecutive sentences, it shall not be
necessary for the court by reason only of the aggregate
punishment for the several offences being in excess of the
punishment which it is competent to inflict on conviction
of a single offence, to send the offender for trial before a
(a) in no case shall such person be sentenced to
imprisonment for longer period than fourteen years;
(b) the aggregate punishment shall not exceed twice the
amount of punishment which the court is competent to
inflict for a single offence.
(3) For the purpose of appeal by a convicted person, the
aggregate of the consecutive sentences passed against
him under this section shall be deemed to be a single
sentence.”
7. A careful reading of the above would show that the
provision is attracted only in cases where two essentials are
satisfied viz. (1) a person is convicted at one trial, and (2) the
trial is for two or more offences. It is only when both these
conditions are satisfied that the court can sentence the
offender to several punishments prescribed for the offences
committed by him provided the court is otherwise competent
to impose such punishments. What is significant is that such
punishments as the court may decide to award for several
offences committed by the convict when comprising
imprisonment shall commence one after the expiration of the
other in such order as the court may direct unless the court in
its discretion orders that such punishment shall run
concurrently. Sub-section (2) of Section 31 on a plain reading
makes it unnecessary for the court to send the offender for
trial before a higher court only because the aggregate
punishment for several offences happens to be in excess of the
punishment which such court is competent to award provided
always that in no case can the person so sentenced be
imprisoned for a period longer than 14 years and the
aggregate punishment does not exceed twice the punishment
which the court is competent to inflict for a single offence.
8. Interpreting Section 31(1), a three-Judge Bench of this
Court in O.M. Cherian case [O.M. Cherian v. State of Kerala,
(2015) 2 SCC 501 : (2015) 2 SCC (Cri) 123] declared that if
two life sentences are imposed on a convict the court must
necessarily direct those sentences to run concurrently. The
Court said: (SCC pp. 509-10, para 13)
“13. Section 31(1) CrPC enjoins a further direction
by the court to specify the order in which one
particular sentence shall commence after the
expiration of the other. Difficulties arise when the
courts impose sentence of imprisonment for life and
also sentences of imprisonment for fixed term. In
such cases, if the court does not direct that the
sentences shall run concurrently, then the
sentences will run consecutively by operation of
Section 31(1) CrPC. There is no question of the
convict first undergoing the sentence of
imprisonment for life and thereafter undergoing the
rest of the sentences of imprisonment for fixed
term and any such direction would be unworkable.
Since sentence of imprisonment for life means jail
till the end of normal life of the convict, the
sentence of imprisonment of fixed term has to
necessarily run concurrently with life
imprisonment. In such case, it will be in order if the
Sessions Judges exercise their discretion in issuing
direction for concurrent running of sentences.
Likewise if two life sentences are imposed on the
convict, necessarily, the court has to direct those
sentences to run concurrently.”
9. To the same effect is the decision of a two-Judge
Bench of this Court in Duryodhan Rout case [Duryodhan
Rout v. State of Orissa, (2015) 2 SCC 783 : (2015) 2 SCC
(Cri) 306] in which this Court took the view that since
life imprisonment means imprisonment of full span of
life there was no question of awarding consecutive
sentences in case of conviction for several offences at
one trial. Relying upon the proviso to sub-section (2) of
Section 31, this Court held that where a person is
convicted for several offences including one for which
life sentences can be awarded the proviso to Section
31(2) shall forbid running of such sentences
pronouncements that the logic behind life sentences not
running consecutively lies in the fact that imprisonment
for life implies imprisonment till the end of the normal
life of the convict. If that proposition is sound, the logic
underlying the ratio of the decisions of this Court in
O.M. Cherian [O.M. Cherian v. State of Kerala, (2015) 2
SCC 501 : (2015) 2 SCC (Cri) 123] and Duryodhan Rout
[Duryodhan Rout v. State of Orissa, (2015) 2 SCC 783 :
(2015) 2 SCC (Cri) 306] cases would also be equally
sound. What then needs to be examined is whether
imprisonment for life does indeed imply imprisonment
till the end of the normal life of the convict as observed
in O.M. Cherian [O.M. Cherian v. State of Kerala, (2015)
2 SCC 501 : (2015) 2 SCC (Cri) 123] and Duryodhan
Rout [Duryodhan Rout v. State of Orissa, (2015) 2 SCC
783 : (2015) 2 SCC (Cri) 306] cases. That question, in
our considered opinion, is no longer res integra, the
same having been examined and answered in the
affirmative by a long line of decisions handed down by
this Court. We may gainfully refer to some of those
decisions at this stage.
11. In Gopal Vinayak Godse v. State of Maharashtra [Gopal
Vinayak Godse v. State of Maharashtra, (1961) 3 SCR 440 :
AIR 1961 SC 600 : (1961) 1 Cri LJ 736] , a Constitution Bench
of this Court held that a prisoner sentenced to life
imprisonment was bound to serve the remainder of his life in
prison unless the sentence is commuted or remitted by the
appropriate authority. Such a sentence could not be equated
with a fixed term.
12. In Dalbir Singh v. State of Punjab [Dalbir Singh v. State of
Punjab, (1979) 3 SCC 745 : 1979 SCC (Cri) 848] , a three-
Judge Bench of this Court observed: (SCC p. 753, para 14)
“14. … life imprisonment which strictly means
imprisonment for the whole of the man's life, but in
practice amounts to incarceration for a period between 10
and 14 years which may, at the option of the convicting
court, be subject to the condition that the sentence of
imprisonment shall last as long as life lasts where there
are exceptional indications of murderous recidivism and
the community cannot run the risk of the convict being at
large.”
13. Again in State of Punjab v. Joginder Singh [State of Punjab
this Court held that if the sentence is “imprisonment for life”
the convict has to pass the remainder of his life under
imprisonment unless of course he is granted remission by a
competent authority in exercise of the powers vested in it
under Sections 432 and 433 CrPC.
14. In Maru Ram v. Union of India [Maru Ram v. Union of
India, (1981) 1 SCC 107 : 1981 SCC (Cri) 112] also this Court
following Godse case [Gopal Vinayak Godse v. State of
Cri LJ 736] held that imprisonment for life lasts until last
breath of the prisoner and whatever the length of remissions
earned the prisoner could claim release only if the remaining
sentence is remitted by the Government. The Court observed:
(Maru Ram case [Maru Ram v. Union of India, (1981) 1 SCC
107 : 1981 SCC (Cri) 112] , SCC p. 154, para 72)
“72. … (6) We follow Godse case [Gopal Vinayak Godse v.
State of Maharashtra, (1961) 3 SCR 440 : AIR 1961 SC
600 : (1961) 1 Cri LJ 736] to hold that imprisonment for
life lasts until the last breath, and whatever the length of
remission earned the prisoner can claim release only if
the remaining sentence is remitted by the Government.”
15. In Ashok Kumar v. Union of India [Ashok Kumar v. Union
of India, (1991) 3 SCC 498 : 1991 SCC (Cri) 845] , this Court
had yet another occasion to examine the true meaning and
purport of expression “imprisonment for life” and declared that
when read in the light of Section 45 IPC the said expression
would ordinarily mean the full and complete span of life. The
following passage in this regard is apposite: (SCC p. 513, para
“12. … The expression “imprisonment for life” must be
read in the context of Section 45 IPC. Under that
provision the word “life” denotes the life of a human being
unless the contrary appears from the context. We have
seen that the punishments are set out in Section 53,
imprisonment for life being one of them. Read in the light
of Section 45 it would ordinarily mean imprisonment for
the full or complete span of life.” in Laxman Naskar v.
Union of India [Laxman Naskar v. Union of India, (2000)
2 SCC 595 : 2000 SCC (Cri) 509] , wherein this Court
held that life sentence is nothing less than lifelong
imprisonment although by earning remission, the life
convict could pray for pre-mature release before
completing 20 years of imprisonment including remissions
earned.
16. To the same effect is the decision of this Court in the case
of Laxman Naskar vs. Union of India, (2000) 2 SCC 595 where
this Court held that life sentence is nothing less than lifelong
imprisonment although by earning remission, the life convict
could pray for pre-mature release before completing 20 years
of imprisonment including remissions earned.
17. Reference may also be made to the decisions of this Court
in Subash Chander v. Krishan Lal [Subash Chander v. Krishan
v. State of Rajasthan [Shri Bhagwan v. State of Rajasthan,
(2001) 6 SCC 296 : 2001 SCC (Cri) 1095] and Swamy
Shraddananda (2) v. State of Karnataka [Swamy
Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767 :
(2009) 3 SCC (Cri) 113] , which too reiterate the legal position
settled by the earlier mentioned decisions of this Court. A
recent Constitution Bench decision of this Court in Union of
India v. Sriharan [Union of India v. Sriharan, (2016) 7 SCC 1]
, also had another occasion to review the case law on the
subject. Relying upon the decisions of this Court in Sambha Ji
Krishan Ji [Sambha Ji Krishan Ji v. State of Maharashtra,
of M.P. v. Ratan Singh, (1976) 3 SCC 470 : 1976 SCC (Cri)
428] , Maru Ram [Maru Ram v. Union of India, (1981) 1 SCC
107 : 1981 SCC (Cri) 112] and Ranjit Singh [Ranjit Singh v.
UT of Chandigarh, (1984) 1 SCC 31 : 1984 SCC (Cri) 27]
cases this Court observed:
“It is quite apparent that this Court by stating as above
has affirmed the legal position that the life imprisonment
only means the entirety of the life unless it is curtailed by
remissions validly granted under the Code of Criminal
Procedure by the appropriate Government or under
Articles 72 and 161 of the Constitution by the Executive
Head viz. the President or the Governor of the State,
respectively.”
18. The legal position is, thus, fairly well settled that
imprisonment for life is a sentence for the remainder of
the life of the offender unless of course the remaining
sentence is commuted or remitted by the competent
authority. That being so, the provisions of Section 31
under CrPC must be so interpreted as to be consistent
with the basic tenet that a life sentence requires the
prisoner to spend the rest of his life in prison. Any
direction that requires the offender to undergo
imprisonment for life twice over would be anomalous
and irrational for it will disregard the fact that humans
like all other living beings have but one life to live. So
understood Section 31(1) would permit consecutive
running of sentences only if such sentences do not
happen to be life sentences. That is, in our opinion, the
only way one can avoid an obvious impossibility of a
prisoner serving two consecutive life sentences.
19. A somewhat similar question fell for consideration before a
three-Judge Bench of this Court in Ranjit Singh v. UT of
Chandigarh [Ranjit Singh v. UT of Chandigarh, (1991) 4 SCC
304 : 1991 SCC (Cri) 965] . The prisoner was in that case
convicted for murder and sentenced to undergo life
imprisonment. He was released on parole while undergoing the
life sentence when he committed a second offence of murder
for which also he was convicted and sentenced to undergo
imprisonment for life. In an appeal filed against the second
conviction and sentence, this Court by an order dated 30-9-
1983 [Ranjit Singh v. UT of Chandigarh, (1984) 1 SCC 31 :
1984 SCC (Cri) 27] directed that the imprisonment for life
awarded to him should not run concurrently with his earlier
sentence of life imprisonment. The Court directed that in the
event of remission or commutation of the earlier sentence
awarded to the prisoner, the second imprisonment for life
awarded for the second murder committed by him shall
commence. Aggrieved by the said direction which made the
second life sentence awarded to him consecutive, the prisoner
filed a writ petition under Article 32 of the Constitution
primarily on the ground that this Court's order dated 30-9-
1983 [Ranjit Singh v. UT of Chandigarh, (1984) 1 SCC 31 :
1984 SCC (Cri) 27] was contrary to Section 427(2) CrPC,
according to which any person already undergoing sentence of
imprisonment for life if sentenced to undergo imprisonment for
life, the subsequent sentence so awarded to him shall run
concurrently with such previous sentence.
20. Relying upon Godse [Gopal Vinayak Godse v. State of
Cri LJ 736] and Maru Ram [Maru Ram v. Union of India,
(1981) 1 SCC 107 : 1981 SCC (Cri) 112] cases, this Court held
in Ranjit Singh case [Ranjit Singh v. UT of Chandigarh, (1991)
4 SCC 304 : 1991 SCC (Cri) 965] that imprisonment for life is
a sentence for remainder of the life of the offender. There was,
therefore, no question of a subsequent sentence of
imprisonment for life running consecutively as per the general
rule contained in sub-section (1) of Section 427. This Court
observed: (SCC pp. 310-11, para 8)
“8. … As rightly contended by Shri Garg, and not disputed
by Shri Lalit, the earlier sentence of imprisonment for life
being understood to mean as a sentence to serve the
remainder of life in prison unless commuted or remitted
by the appropriate authority and a person having only
one life span, the sentence on a subsequent conviction of
imprisonment for a term or imprisonment for life can only
be superimposed to the earlier life sentence and certainly
not added to it since extending the life span of the
offender or for that matter anyone is beyond human
might. It is this obvious situation which is stated in sub-
section (2) of Section 427 since the general rule
enunciated in sub-section (1) thereof is that without the
court's direction the subsequent sentence will not run
concurrently but consecutively. The only situation in
which no direction of the court is needed to make the
subsequent sentence run concurrently with the previous
sentence is provided for in sub-section (2) which has
been enacted to avoid any possible controversy based on
sub-section (1) if there be no express direction of the
court to that effect. Sub-section (2) is in the nature of an
exception to the general rule enacted in sub-section (1) of
Section 427 that a sentence on subsequent conviction
commences on expiry of the first sentence unless the
court directs it to run concurrently. The meaning and
purpose of sub-sections (1) and (2) of Section 427 and
the object of enacting sub-section (2) is, therefore,
clear.”
21. Having said that, this Court in Ranjit Singh case [Ranjit
Singh v. UT of Chandigarh, (1991) 4 SCC 304 : 1991 SCC (Cri)
965] declared that once the subsequent imprisonment for life
awarded to the prisoner is superimposed over the earlier life
sentence, the grant of any remission or commutation qua the
earlier sentence of life imprisonment will not ipso facto benefit
the prisoner qua the subsequent sentence of life
imprisonment. Such subsequent sentence would continue and
shall remain unaffected by the remission or commutation of
the earlier sentence. This Court said: (SCC p. 311, para 9)
“9. … In other words, the operation of the superimposed
subsequent sentence of life imprisonment shall not be
wiped out merely because in respect of the corresponding
earlier sentence of life imprisonment any remission or
commutation has been granted by the appropriate
authority. The consequence is that the petitioner would
not get any practical benefit of any remission or
commutation in respect of his earlier sentence because of
the superimposed subsequent life sentence unless the
same corresponding benefit in respect of the subsequent
sentence is also granted to the petitioner. It is in this
manner that the direction is given for the two sentences
of life imprisonment not to run concurrently.”
22.Ranjit Singh case [Ranjit Singh v. UT of Chandigarh, (1991)
4 SCC 304 : 1991 SCC (Cri) 965] was no doubt dealing with a
fact situation different from the one with which we are dealing
in the present case, inasmuch as Ranjit Singh case [Ranjit
Singh v. UT of Chandigarh, (1991) 4 SCC 304 : 1991 SCC (Cri)
965] was covered by Section 427 CrPC as the prisoner in that
case was already undergoing a sentence of life imprisonment
when he committed a second offence of murder that led to his
conviction and award of a second sentence of life
imprisonment. In the cases at hand, the appellants were not
convicts undergoing life sentence at the time of commission of
multiple murders by them. Their cases, therefore, fall more
appropriately under Section 31 of the Code which deals with
conviction of several offences at one trial. Section 31(1) deals
with and empowers the court to award, subject to the
provisions of Section 71 IPC, several punishments prescribed
for such offences and mandates that such punishments when
consisting of imprisonment shall commence one after the
expiration of the other in such order as the court may direct
unless the court directs such punishments shall run
concurrently. The power to award suitable sentences for
several offences committed by the offenders is not and cannot
be disputed. The order in which such sentences shall run can
also be stipulated by the court awarding such sentences. So
also the court is competent in its discretion to direct that
punishment awarded shall run concurrently not consecutively.
The question, however, is whether the provision admits of
more than one life sentences running consecutively. That
question can be answered on a logical basis only if one accepts
the truism that humans have one life and the sentence of life
imprisonment once awarded would require the prisoner to
spend the remainder of his life in jail unless the sentence is
commuted or remitted by the competent authority. That, in
our opinion, happens to be the logic behind Section 427(2)
CrPC mandating that if a prisoner already undergoing life
sentence is sentenced to another imprisonment for life for a
subsequent offence committed by him, the two sentences so
awarded shall run concurrently and not consecutively. Section
427(2) in that way carves out an exception to the general rule
recognised in Section 427(1) that sentences awarded upon
conviction for a subsequent offence shall run consecutively.
23. Parliament, it manifests from the provisions of Section
427(2) CrPC, was fully cognizant of the anomaly that would
arise if a prisoner condemned to undergo life imprisonment is
directed to do so twice over. It has, therefore, carved out an
exception to the general rule to clearly recognise that in the
case of life sentences for two distinct offences separately tried
and held proved the sentences cannot be directed to run
consecutively. The provisions of Section 427(2) CrPC apart, in
Ranjit Singh case [Ranjit Singh v. UT of Chandigarh, (1991) 4
SCC 304 : 1991 SCC (Cri) 965] , this Court has in terms held
that since life sentence implies imprisonment for the
remainder of the life of the convict, consecutive life sentences
cannot be awarded as humans have only one life. That logic,
in our view, must extend to Section 31 CrPC also no matter
Section 31 does not in terms make a provision analogous to
Section 427(2) of the Code. The provision must, in our
opinion, be so interpreted as to prevent any anomaly or
irrationality. So interpreted Section 31(1) CrPC must mean
that sentences awarded by the court for several offences
committed by the prisoner shall run consecutively (unless the
court directs otherwise) except where such sentences include
imprisonment for life which can and must run concurrently. We
are also inclined to hold that if more than one life sentences
are awarded to the prisoner, the same would get
superimposed over each other. This will imply that in case the
prisoner is granted the benefit of any remission or
commutation qua one such sentence, the benefit of such
remission would not ipso facto extend to the other.
24. We may now turn to the conflict noticed in the reference
order between the decisions of this Court in Cherian [O.M.
Cherian v. State of Kerala, (2015) 2 SCC 501 : (2015) 2 SCC
(Cri) 123] and Duryodhan [Duryodhan Rout v. State of Orissa,
(2015) 2 SCC 783 : (2015) 2 SCC (Cri) 306] cases on the one
hand and Kamalanantha [Kamalanantha v. State of T.N.,
(2005) 5 SCC 194 : 2005 SCC (Cri) 1121] and Sanaullah Khan
[Sanaullah Khan v. State of Bihar, (2013) 3 SCC 52 : (2013) 2
SCC (Cri) 34] cases on the other.
25. In O.M. Cherian case [O.M. Cherian v. State of Kerala,
(2015) 2 SCC 501 : (2015) 2 SCC (Cri) 123] the prisoner was
convicted and sentenced to imprisonment for the offences
punishable under Sections 498-A and 306 IPC. The courts
below had in that case awarded to the convicts imprisonment
for two years under Section 498-A IPC and seven years under
Section 306 IPC and directed the same to run consecutively.
Aggrieved by the said direction, the prisoners appealed to this
Court to contend that the sentences awarded to them ought to
run concurrently and not consecutively. The appeal was
referred [O.M. Cherian v. State of Kerala, (2015) 2 SCC 501,
506-507 (para 5)] to a larger Bench of three Judges of this
Court in the light of the decision in Mohd. Akhtar Hussain v.
Collector of Customs [Mohd. Akhtar Hussain v. Collector of
the larger Bench, the prisoners relied upon Mohd. Akhtar
Hussain case [Mohd. Akhtar Hussain v. Collector of Customs,
(1988) 4 SCC 183 : 1988 SCC (Cri) 921] and Manoj v. State of
Haryana [Manoj v. State of Haryana, (2014) 2 SCC 153 :
(2014) 1 SCC (Cri) 763] to contend that since the prisoners
were found guilty of more than two offences committed in the
course of one incident, such sentences ought to run
concurrently. This Court upon a review of the case law on the
subject held that Section 31 CrPC vested the court with the
power to order in its discretion that the sentences awarded
shall run concurrently in case of conviction of two or more
offences. This Court declared that it was difficult to lay down a
straightjacket rule for the exercise of such discretion by the
courts. Whether a sentence should run concurrently or
consecutively would depend upon the nature of the offence
and the facts and circumstances of the case. All that could be
said was that the discretion has to be exercised along judicial
lines and not mechanically. Having said that, the Court
observed that if two life sentences are imposed on a convict
the court has to direct the same to run concurrently. That is
because sentence of imprisonment for life means
imprisonment till the normal life of a convict.
26. As noticed above, Cherian case [O.M. Cherian v.
State of Kerala, (2015) 2 SCC 501 : (2015) 2 SCC (Cri)
123] did not involve awarding of two or more life
sentences to the prisoner. It was a case of two term
sentences being awarded for two different offences
committed in the course of the same transaction and
tried together at one trial. Even so, this Court held that
life sentences cannot be made to run consecutively
plainly because a single life sentence ensures that the
remainder of the life of the prisoner is spent by him in
jail. Such being the case, the question of a second such
sentence being undergone consecutively did not arise.
27. In Duryodhan Rout case [Duryodhan Rout v. State of
Orissa, (2015) 2 SCC 783 : (2015) 2 SCC (Cri) 306] the
prisoner was convicted for the offences punishable
under Sections 302, 376(2)(f) and 201 IPC and
sentenced to death for the offence of murder and
rigorous imprisonment for the offence punishable under
Section 376(2)(f). Imprisonment for a period of one
year was additionally awarded under Section 201 IPC
with a direction that the sentences would run
consecutively. In appeal, the High Court altered [State
LJ 2876] the sentence of death to imprisonment for life
while leaving the remaining sentences untouched. The
petitioner then approached this Court to argue that the
sentences ought to run concurrently and not
consecutively as directed by the courts below. Relying
upon the decision of this Court in Gopal Vinayak case
[Gopal Vinayak Godse v. State of Maharashtra, (1961) 3
SCR 440 : AIR 1961 SC 600 : (1961) 1 Cri LJ 736] and
several other subsequent decisions on the subject this
Court held that the sentence of imprisonment for life
means imprisonment for the remainder of the life of the
prisoner. The Court further held that Section 31 CrPC
would not permit consecutive running of life sentence
and the term sentence since the aggregate punishment
of the petitioner would go beyond the outer limit of 14
years stipulated in the proviso to Section 31(2) CrPC.
The Court observed: (Duryodhan Rout case [Duryodhan
Rout v. State of Orissa, (2015) 2 SCC 783 : (2015) 2 SCC
(Cri) 306] , SCC p. 794, para 29)
“29. Section 31 CrPC relates to sentence in cases of
conviction of several offences at one trial. The proviso to
sub-section (2) of Section 31 lays down the embargo
whether the aggregate punishment of prisoner is for a
period of longer than 14 years. In view of the fact that life
imprisonment means imprisonment for full and complete
span of life, the question of consecutive sentences in case
of conviction for several offences at one trial does not
arise. Therefore, in case a person is sentenced of
conviction of several offences, including one that of life
imprisonment, the proviso to Section 31(2) shall come
into play and no consecutive sentence can be imposed.”
28. While we have no doubt about the correctness of the
proposition that two life sentences cannot be directed to run
consecutively, we do not think that the reason for saying so
lies in the proviso to Section 31(2). Section 31(2) CrPC deals
with situations where the court awarding consecutive
sentences is not competent to award the aggregate of the
punishment for the several offences for which the prisoner is
being sentenced upon conviction. A careful reading of sub-
section (2) would show that the same is concerned only with
situations where the courts awarding the sentence and
directing the same to run consecutively is not competent to
award the aggregate of the punishment upon conviction for a
single offence. The proviso further stipulates that in cases
falling under sub-section (2), the sentence shall in no case go
beyond 14 years and the aggregate punishment shall not
exceed twice the amount of punishment which the court is
competent to award. Now in cases tried by the Sessions Court,
there is no limitation as to the court's power to award any
punishment sanctioned by law including the capital
punishment. Sub-section (2) will, therefore, have no
application to a case tried by the Sessions Court nor would
sub-section (2) step in to forbid a direction for consecutive
running of sentences awardable by the Court of Session.
29. To the extent Duryodhan Rout case [Duryodhan Rout v.
State of Orissa, (2015) 2 SCC 783 : (2015) 2 SCC (Cri) 306]
relies upon proviso to sub-section (2) to support the
conclusion that a direction for consecutive running of
sentences is impermissible, it does not state the law correctly,
even when the conclusion that life imprisonment means for the
full span of one's life and consecutive life sentences cannot be
awarded is otherwise sound and acceptable.
30. In Kamalanantha v. State of T.N. [Kamalanantha v. State
of T.N., (2005) 5 SCC 194 : 2005 SCC (Cri) 1121] , the
prisoners were convicted amongst others for the offences
under Sections 376, 302, 354 IPC and sentenced to undergo
rigorous imprisonment for life for the offences under Sections
376 and 302 IPC and various terms of imprisonment for other
offences with the direction that the sentences awarded shall
run consecutively. One of the issues that was raised in support
of the appeal was that the courts below were not justified in
awarding consecutive life sentences. That contention was
rejected by a two-Judge Bench of this Court in the following
words: (SCC p. 229, para 76)
“76. The contention of Mr Jethmalani that the term
“imprisonment” enjoined in Section 31 CrPC does not
include imprisonment for life is unacceptable. The term
“imprisonment” is not defined under the Code of Criminal
Procedure. Section 31 of the Code falls under Chapter III
of the Code which deals with power of courts. Section 28
of the Code empowers the High Court to pass any
sentence authorised by law. Similarly, the Sessions Judge
and Additional Sessions Judge may pass any sentence
authorised by law, except the sentence of death which
shall be subject to confirmation by the High Court. In our
opinion the term “imprisonment” would include the
sentence of imprisonment for life.”
31. The above view runs contrary to the ratio of this Court's
decision in Cherian case [O.M. Cherian v. State of Kerala,
(2015) 2 SCC 501 : (2015) 2 SCC (Cri) 123] and Duryodhan
Rout case [Duryodhan Rout v. State of Orissa, (2015) 2 SCC
783 : (2015) 2 SCC (Cri) 306] . That apart the view taken in
Kamalanantha case [Kamalanantha v. State of T.N., (2005) 5
SCC 194 : 2005 SCC (Cri) 1121] has not noticed the basic
premise that a life sentence once awarded would imply that a
prisoner shall spend the remainder of his life in prison. Once
that happens there is no question of his undergoing another
life sentence. To the extent the decision in Kamalanantha case
[Kamalanantha v. State of T.N., (2005) 5 SCC 194 : 2005 SCC
(Cri) 1121] takes the view that the Court can for each offence
award suitable punishment which may include multiple
sentences of imprisonment for life for multiple offences
punishable with death, there is and can be no quarrel with the
stated proposition. The Court can and indeed ought to exercise
its powers of awarding the sentence sanctioned by law which
may include a life sentence. But if the decision in
Kamalanantha [Kamalanantha v. State of T.N., (2005) 5 SCC
194 : 2005 SCC (Cri) 1121] purports to hold that sentence of
imprisonment for life can also be directed to run consecutively,
the same does not appear to be sound for the reasons we
have already indicated earlier. We need to remember that
award of multiple sentences of imprisonment for life so that
such sentences are superimposed over one another is entirely
different from directing such sentence to run consecutively.
32.Sanaullah Khan v. State of Bihar [Sanaullah Khan v. State
of Bihar, (2013) 3 SCC 52 : (2013) 2 SCC (Cri) 34] simply
follows the view taken in Kamalanantha case [Kamalanantha
v. State of T.N., (2005) 5 SCC 194 : 2005 SCC (Cri) 1121]
and, therefore, does not add any new dimension to call for any
further deliberation on the subject.
33. We are not unmindful of the fact that this Court has in
several other cases directed sentences of imprisonment for life
to run consecutively having regard to the gruesome and brutal
nature of the offence committed by the prisoner. For instance,
this Court has in Ravindra Trimbak Chouthmal v. State of
Maharashtra [Ravindra Trimbak Chouthmal v. State of
Maharashtra, (1996) 4 SCC 148 : 1996 SCC (Cri) 608] , while
commuting death sentence penalty to one of imprisonment for
life directed that the sentence of seven years' rigorous
imprisonment under Section 207 IPC shall start running after
life imprisonment has run its due course. So also in Ronny v.
State of Maharashtra [Ronny v. State of Maharashtra, (1998)
3 SCC 625 : 1998 SCC (Cri) 859] this Court has while altering
the death sentence to that of imprisonment for life directed
that while the sentence for all other offences shall run
concurrently, the sentence under Section 376(2)(g) IPC shall
run consecutively after running of sentences for other
offences. To the extent these decisions may be understood to
hold that life sentence can also run consecutively do not lay
down the correct law and shall stand overruled.
34. In conclusion our answer to the question is in the
negative. We hold that while multiple sentences for
imprisonment for life can be awarded for multiple murders or
other offences punishable with imprisonment for life, the life
sentences so awarded cannot be directed to run consecutively.
Such sentences would, however, be superimposed over each
other so that any remission or commutation granted by the
competent authority in one does not ipso facto result in
remission of the sentence awarded to the prisoner for the
35. We may, while parting, deal with yet another
dimension of this case argued before us, namely,
whether the court can direct life sentence and term
sentences to run consecutively. That aspect was argued
keeping in view the fact that the appellants have been
sentenced to imprisonment for different terms apart
from being awarded imprisonment for life. The trial
court's direction affirmed by the High Court is that the
said term sentences shall run consecutively. It was
contended on behalf of the appellants that even this
part of the direction is not legally sound, for once the
prisoner is sentenced to undergo imprisonment for life,
the term sentence awarded to him must run
concurrently. We do not, however, think so. The power of
the court to direct the order in which sentences will run is
unquestionable in view of the language employed in Section
31 CrPC. The court can, therefore, legitimately direct that the
prisoner shall first undergo the term sentence before the
commencement of his life sentence. Such a direction shall be
perfectly legitimate and in tune with Section 31 CrPC. The
converse however may not be true for if the court directs the
life sentence to start first it would necessarily imply that the
term sentence would run concurrently. That is because once
the prisoner spends his life in jail, there is no question of his
undergoing any further sentence. Whether or not the direction
of the court below calls for any modification or alteration is a
matter with which we are not concerned. The regular Bench
hearing the appeals would be free to deal with that aspect of
the matter having regard to what we have said in the
foregoing paragraphs.
36. The reference is accordingly answered.”
(Emphasis supplied)
In the light of the judgments rendered by the Apex Court as quoted
(supra), the impugned order requires to be noticed. The impugned
order in S.C.No.02 of 2007 rendered on 25.11.2010 insofar as it
pertains to imposition of sentence reads as follows:
Accused Nos.1 and 2 are convicted and sentenced to
under go Life Imprisonment and shall also pay fine of
Rs.50,000/- each and in default of payment of fine they shall
under go further rigorous imprisonment for a period of six
months in respect of the offence punishable u/s 302 IPC.
Accused Nos.1 to 3 are also convicted and sentenced
to under go rigorous imprisonment for a period of ten years
and shall pay fine of Rs.50,000/- each and in default of
payment of fine they shall under go further rigorous
imprisonment for a period of six months in respect of the
offence punishable u/s 394 of IPC.
On deposit of fine, 50% of it shall be paid to PW3
Shanthamma by way of compensation under section 357 of
Accused are entitled to benefit of set off under section
428 of Cr.P.C.,
So far as property is concerned, MOs 2 to 5, 9 to 13,
25 to 28 being valueless shall be destroyed, rest of the
articles shall be returned to PW1 Ganapathy Shetty and PW3
Shanthamma, after expiry of appeal period if no appeal is
preferred.
Issue conviction warrant and furnish free copy of this
judgment to accused forthwith.”
The order directs that the convicts/accused 1 and 2 are ordered to
undergo life imprisonment for offence punishable under Section 302
of the IPC. Further, for offence punishable under Section 394 of the
IPC, they are required to undergo rigorous imprisonment for 10
years. There is no indication in the order whether the sentences
would run concurrently or one after the other. Therefore, the issue
with regard to such finding is left unattended by the concerned
Court. The maximum punishment that is imposed initially against
the petitioners is imprisonment for life for offence punishable under
Section 302 of the IPC and later imprisonment for 10 years under
Section 394 of the IPC. On the bedrock of the principles laid down
by the judgment of the Apex Court that if life imprisonment is the
punishment that is imposed, the term sentence will have to run
concurrently and in the light of the issue being covered by the
judgments quoted (supra), I deem it appropriate direct that the
sentence imposed upon the petitioners by the impugned order of
conviction dated 25.11.2010 in S.C.No.02 of 2007 passed by
District and Sessions Judge, Chikkaballapura would run
7. For the aforesaid reasons, the following:
i. The Criminal Petitions are allowed.
ii. The sentences imposed upon the petitioners in terms of
the impugned order of conviction dated 25.11.2010,
passed in S.C.No.02/2007, shall run concurrently.
Ordered accordingly. | The Karnataka High Court has clarified that if a term of life imprisonment under section 302 of Indian Penal Code is imposed on an accused and another fixed term sentence is imposed for another charge, then both sentences will run concurrently and not consecutively.
A single judge bench of Justice M Nagaprasanna gave this clarification while allowing the petition filed by convicts Ramachandra Reddy and another and directed that the sentences imposed upon the petitioners in terms of the impugned order of conviction dated 25.11.2010, passed in S.C.No.02/2007, shall run concurrently.
The Sessions Court in terms of its order dated 09.12.2010, convicted the petitioners herein and sentenced them to undergo life imprisonment and pay fine of Rs.50,000 for offence punishable under Section 302 of the IPC and in default of payment of fine, they shall undergo further rigorous imprisonment for a period of six months. They were also convicted and sentenced to undergo rigorous imprisonment for a period of ten years and payment of Rs.50,000 each and in default to pay fine, to undergo further rigorous imprisonment for a period of six months for the offence punishable under Section 394 of the IPC.
The petitioners approached the court contending that they are in prison since 22.09.2002, which is more than twenty years as of now and are entitled to seek remission or premature release in terms of the Rules and guidelines. However, in the absence of a direction by the concerned court that the sentences should run concurrently, the petitioners even after completing twenty years in prison are not entitled to seek remission on the ground that the sentence for offence punishable under Section 394 of the IPC, is in operation.
The bench relied on the Supreme Court judgments in the case of Ramesh Chilwal @ Bambayya Vs State of Uttarakhand, (2012) 11 SCC 629. Gagan Kumar Vs State of Punjab, 2 (2019) 5 SCC 154 and Muthuramalingama and Others Vs State, Represented by Inspector of Police, (2016) 8 SCC 213, wherein the courts have held that “If the court directs the life sentence to start first it would necessarily imply that the term sentence would run concurrently. That is because once the prisoner spends his life in jail, there is no question of his undergoing any further sentence.”
Following which the bench observed “There is no indication in the order whether the sentences would run concurrently or one after the other. Therefore, the issue with regard to such finding is left unattended by the concerned Court. The maximum punishment that is imposed initially against the petitioners is imprisonment for life for offence punishable under Section 302 of the IPC and later imprisonment for 10 years under Section 394 of the IPC.”
It then held “I deem it appropriate to direct that the sentence imposed upon the petitioners by the impugned order of conviction dated 25.11.2010 in S.C.No.02 of 2007 passed by District and Sessions Judge, Chikkaballapura would run concurrently.”
Case Title: Ramachandra Reddy & ANR And State of Karnataka
Case No: CRIMINAL PETITION No.3359 OF 2022 C/W CRIMINAL PETITION No.2096 OF 2021
Date of Order: 08-02-2023
Appearance: Advocate Nanjunde Gowda for petitioners.
HCGP K.P.Yashodha for respondent. |
Ms.Madhvi Gonathieswaran i/by Dr.Yug Mohit Chaudhry, Advocate
for Applicant-Appellant.
Mr.Ajay Patil, APP, for Respondent-State.
1. This is an application for release of applicant on temporary
bail for a period 22nd February 2023 till 28th February 2023 on the
ground of marriage of his daughter namely Ms.Nandini which is
scheduled on 24th February 2023 near Durgamata Temple, Kavla
2. Heard Ms.Madhvi Gonathieswaran for Applicant and Mr.Ajay
Patil, APP for State.
3. Ms.Gonathieswaran submitted that, marriage of daughter of
Digitally signed
Applicant namely Ms.Nandini is scheduled on 24 th February 2023 at
Kolhapur. That, presence of Applicant being father of bride is
2 of 3 20.IA.673.2023.doc
necessary to perform religious functions and/or rituals. The venue of
the marriage is about 10 kilometers from Kolhapur Central Prison,
Kalamba and within the periphery of 1.5 kilometers of Shahupuri
Police Station, Kolhapur. It is submitted that, Applicant is in custody
since 28th August 2017 and on not a single occasion was released
either on bail, parole or furlough leave. It is submitted that,
Applicant hails from lower economic strata of society and it will not
be possible for him to pay the escort charges if fixed by Competent
Authority in that behalf. She therefore prayed that, case of the
Applicant may be sympathetically considered and he may be released
on temporary bail for a period of one week from 22 nd February 2023
4. It is not in dispute that, presence of Applicant on the date of
marriage of his daughter for performing religious ceremonies is
necessary. After taking into consideration over all view of the matter,
we are inclined to release the Applicant on 23 rd, 24th and 25th
February 2023 between 9.00 am to 6.00 p.m from jail to attend the
marriage and related religious ceremonies. In view of the
submissions advanced by learned counsel for Applicant that,
Applicant hails from lower economic strata of society, we hereby
direct the Competent Authority to waive escort charges of the escort
party who would accompany the Applicant at the respective venues
3 of 3 20.IA.673.2023.doc
on 23rd, 24th and 25th February 2023 for performing the religious
(i) Applicant is released from jail from 9.00 a.m to 6.00 a.m. on
23rd February 2023, 24th February 2023 and 25th February 2023
under Police Escort to attend marriage ceremony of his daughter
Ms.Nandini near Durgamata Temple, Kavla Naka, Kolhapur. The
Escort Party shall be in civil dress;
(ii) The Competent Authority is directed not to levy any escort
charges of the Escort Party who will accompany the applicant at the
venue of said religious functions on 23 rd February 2023, 24th
February 2023 and 25th February 2023;
(iii) The escort party is directed to bring back the applicant before
6.00 p.m on 23rd February 2023, 24th February 2023 and 25th
February 2023 to the Jail.
5. Interim Application is allowed in above terms;
6. All concerned to act on an authenticated copy of this order
duly authenticated by Registry of High Court. | The Bombay High Court on Monday allowed a death row convict, who murdered his mother and cut her body parts to eat them, to attend his daughter’s marriage. An Escort Party in civil dress will remain present at the venues.
A division bench of Justice A. S. Gadkari and Justice P. D. Naik observed that his presence is necessary for performing religious ceremonies.
“It is not in dispute that, presence of Applicant on the date of marriage of his daughter for performing religious ceremonies is necessary. After taking into consideration over all view of the matter, we are inclined to release the Applicant on 23rd, 24th and 25th February 2023 between 9.00 am to 6.00 p.m from jail to attend the marriage and related religious ceremonies.”
In 2021, Additional Sessions Judge Mahesh Jadhav of Kolhapur District had convicted the man under section 302 (punishment for murder) if IPC for murdering his mother, cutting her body parts and preparing to cook them. The trial court awarded him capital punishment observing that his acts were heinous and shameless and fell in the category of “rarest or rare” cases.
The case for confirmation of his death sentence is pending before the High Court.
The convict applied for temporary bail for a week from February 22, 2023 to February 28, 2023 for the marriage of his daughter on February 24, 2023 in Kolhapur.
He submitted that he has been in custody since August 28, 2017 and hasn't been released on bail, parole or furlough on a single occasion. Further, he belongs to a lower economic strata and will not be able to pay escort charges.
The court considered that the applicant is from lower economic strata and directed the authorities to waive escort charges for the escort party that would accompany him at the marriage venue.
Advocate Madhvi Gonathieswaran with Advocate Dr. Yug Mohit Chaudhry represented the Applicant while APP Ajay Patil represented the state.
Case no. – Interim Application No. 673 of 2023 in Criminal Confirmation Case No. 1 of 2021
Case Title – Sunil Rama Kuchkoravi v. State of Maharashtra |
Counsel for Opposite Party :- G.A.,Jeetendra Kumar Sharma
Heard Mr. Monoj Kumar Srivastava, learned counsel for the
applicant, Mr. Jeetendra Kumar Sharma, learned counsel for the
opposite party No.2 and learned A.G.A. for the State.
The present Application U/S 482 Cr.P.C. has been filed with a
prayer to quash the charge sheet dated 07.04.2021 filed in Case
No.9956 of 2021 arising out of Charge sheet No.01 dated
07.04.2021 filed in Case Crime No.0018 of 2021, under
Sections 498-A and 323 of IPC and 3/4 of D.P. Act, Police
Station-Mahila Thana, District-Kannauj, as well as stay the
proceeding in pursuance of cognizance order dated 02.08.2021
in view of the compromise dated 16.03.2021 executed between
both the parties.
The brief facts of the case are opposite party No.2 (wife) had
lodged an F.I.R. on 02.02.2021 under Sections 498-A, 323 IPC
and Section 3/4 of D.P. Act against the applicants (Husband and
his family members) alleging that marriage of applicant and
opposite party No.2 was solemnized about 6 years before.
From the wedlock of applicant No.1 and opposite party No.2,
three children were born, who are living with opposite party
No.2. The applicants have not satisfied to the dowry and they
started beating and harassing her for fulfillment of additional
demand of dowry. On 18.01.2021 on the refusal of demand of
dowry by the opposite party No.2, applicant beaten her due to
which opposite party No.2 has received injuries on her body.
The investigating officer after investigation has submitted
charge sheet No.1 dated 07.04.2021 before the Court and the
cognizance was accordingly taken on 02.08.2021. In the
meanwhile, due to intervention of the relatives and well wishers
of the family, opposite party No.2 and applicants have entered
into compromise on 16.03.2021 outside the Court and started to
live together as husband and wife along with their children
having no grievance to each other. The applicants have filed
present 482 Cr.P.C. application to quash the charge sheet dated
07.04.2021, on the basis of compromise dated 16.03.2021 on
16.02.2022, this Court passed the following order:
"Heard learned counsel for the applicants, Sri Jeetendra Kumar
Sharma, learned counsel for the O.P. No. 2 as well as learned
A.G.A. for the State and perused the record.
Learned counsel for the applicants submits that the parties have
entered into a compromise as a subject matter of the dispute was
matrimonial. The terms and conditions have been entered into a
compromise which is Annexure No. 3.
Learned counsel for the O.P. No. 2 has acknowledged the
aforesaid facts.
The parties shall appear before the trial court and file
compromise within four weeks. Upon the said compromise being
filed before the trial court, it shall after due identification, verify
the compromise. The trial Judge shall forward to this Court a
duly verified copy of the compromise entered into between the
parties along with a copy of his order verifying the compromise
which shall be before the next date fixed.
Till the next date of listing, no coercive steps shall be taken
against the applicants in Case No. 9956 of 2021 (Case Crime No.
0018 of 2021), under Sections 498A, 323 IPC and 3/4 D.P. Act,
Office will ensure the compliance of the aforesaid order and will
transmit the copy of the compromise along with copy of the order
to the trial court through the concerned Session Judge within
In compliance of the order dated 16.2.2022 parties have filed
compromise application in the courts below, which has been
duly verified and sent to this Court along with verification
report dated 30.03.2022, the same is on the record of the case.
Learned counsel for the applicant submitted that proceeding of
Criminal case under Sections 498-A,323 IPC and Section ¾ of
D.P. Act be quashed as parties to dispute have entered into
compromise which have been verified also by courts below. He
further submitted that applicant No.1 and opposite party No.2
along with their children are living together as such no useful
purpose will be served to drag present proceeding further he
further placed reliance upon the judgment of this court reported
in 2022 Law Suit (Alld) 104 Dr. Mohd. Ibrahim and others vs.
State of U.P. and others, Gian Singh vs.State of Punjab and
Singh and others Vs.State of Punjab and other (2014) 6
Supreme court cases 466 and State of Madhya Pradesh vs.
Laxmi Narayan and others (2019) 5 Supreme court cases
Learned Counsel for the opposite party No.2 has also filed his
vakalatnama and compromise affidavit dated 21.12.2021 stating
that opposite party No.2 and applicant No.1 are living together
having no grievance to each other as such she does not want to
press the proceedings of criminal case against the applicants.
Considered the submission of learned counsel for the parties.
On the point of compromise between the parties in criminal
cases following case law will be relevant:
(i) Gian Singh vs.State of Punjab and another (2012) 10
(ii) Narinder Singh and others Vs.State of Punjab and other
(2014) 6 Supreme court cases 466
(iii) State of Madhya Pradesh vs. Laxmi Narayan and others
(2019) 5 Supreme court cases 688.
In the case of Gian Singh (Supra) Hon'ble Supreme Court has
held in para No.61 and 62 as follows:
"61. The position that emerges from the above discussion can be
summarized 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 nature and have a serious impact on
society. Similarly, any compromise between thee a victim and the
offender in relation to the offences under special statutes like b
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.
62. In view of the above, it cannot be said that B.S. Joshi ,Nikhil
Merchants and Manoj Sharma were not correctly decided. We
answer the reference accordingly. Let these matters be now listed
before the Bench(es) Concerned."
In the Case of Narinder Singh (supra) Hon'ble Supreme Court
has held as follows in para No.29:
29. In view of the aforesaid discussion, we sum up and lay
down the following principles by which the High Court would
be guided in giving adequate treatment to the settlement
between the parties and exercising its power under Section 482
of the Code while accepting the settlement and quashing the
proceedings or refusing to accept the settlement with direction
to continue with the criminal proceedings:
29.1. Power conferred under Section 482 of the Code is to be
distinguished from the power which lies in the Court to
compound the offences under Section 320 of the Code. No
doubt, under Section 482 of the Code, the High Court has
inherent power to quash the criminal proceedings even in those
cases which are not compoundable, where the parties have
settled the matter between themselves. However, this power is
to be exercised sparingly and with caution.
29.2. When the parties have reached the settlement and on that
basis petition for quashing the criminal proceedings is filed, the
guiding factor in a 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.
29.6. Offences under Section 307 IPC would fall in the category
of heinous and serious offences and therefore are to be
generally treated as crime against the society and not against
the individual alone. However, the High Court would not rest
its decision merely because there is a mention of Section 307
IPC in the FIR or the charge is framed under this provision. It
would be open to the High Court to examine as to whether
incorporation of Section 307 IPC is there for the sake of it or
the prosecution has collected sufficient evidence, which if
proved, would lead to proving the charge under Section 307
IPC. For this purpose, it would be open to the High Court to go
by the nature of injury sustained, whether such injury is
inflicted on the vital/delicate parts of the body, nature of
weapons used, etc. Medical report in respect of injuries
suffered by the victim can generally be the guiding factor. On
the basis of this prima facie analysis, the High Court can
examine as to whether there is a strong possibility of conviction
or the chances of conviction are remote and bleak. In the
former case it can refuse to accept the Settlement and quash
the criminal proceedings whereas in the latter case it would be
permissible for the High Court to accept the plea compounding
the offence based on complete settlement between the parties.
At this stage, the Court can also be swayed by the fact that the
settlement between the parties is going to result in harmony
between them which may improve their future relationship.
29.7. While deciding whether to exercise its power under
Section 482 of the Code or not, timings of settlement play a
crucial role. Those cases where the settlement is arrived at
immediately after the alleged commission of offence and the
matter is still under investigation, the High Court may be
liberal in accepting the settlement to quash the criminal
proceedings/investigation. It is because of the reason that at
this stage the investigation is still on and even the charge-sheet
has not been filed. Likewise, those cases where the charge is
framed but the evidence is yet to start or the evidence is still at
infancy stage, the High Court can show benevolence in
exercising its powers favourably, but after prima facie
assessment of the circumstances/material mentioned above. On
the other hand, where the prosecution evidence is almost
complete or after the conclusion of the evidence the matter is at
the stage of argument, normally the High Court should refrain
from exercising its power under Section 482 of the Code, as in
such cases the trial court would be in a position to decide the
case finally on merits and to come to a conclusion as to whether
the offence under Section 307 IPC is committed or not a
Similarly, in those cases where the conviction is already
recorded by the trial court and the matter is at the appellate
stage before the High Court, mere compromise between the
parties would not be a ground to accept the same resulting in
acquittal of the offender who has already been convicted by the
trial court. Here charge is proved under Section 307 IPC and
conviction is already recorded of a heinous crime and,
therefore, there is no question of sparing a convict found guilty
of such a crime."
In the case of State of Madhya Pradesh Vs.Laxmi Narayan
(Supra) held as follows in para No. 15.1 to 15.4:
"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
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
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 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;
15.4 Offences under Section 307 IPC and the Arms Act etc.
rwould fall in the category of heinous and serious offences and
therefore are to be treated as crime against the society and not
against the individual alone, and therefore, the criminal
proceedings for the offence under Section 307 IPC and/or the
Arms Act etc. which have a serious impact on the society cannot
be quashed in exercise of powers under Section 482 of the Code,
on the ground that the parties have resolved their entire dispute
amongst themselves. However, the High Court would not rest its
decision merely because there is a mention of Section 307 IPC in
the FIR or the charge is framed under this provision. It would be
open to the High Court to examine as to whether incorporation
of Section 307 IPC is there for the sake of it or the prosecution
has collected sufficient evidence, which if proved, would lead to
framing the charge under Section 307 IPC. For this purpose, it
would be open to the High Court to go by the nature of injury
sustained, whether such injury is inflicted on the vital/delegate
parts of the body, nature of weapons used etc. However, such an
exercise by the High Court would be permissible only after the
evidence is collected after investigation and the charge sheet is
filed/charge is framed and/or during the trial. Such exercise is
not permissible when the matter is still under investigation.
Therefore, the ultimate conclusion in paragraphs 29.6 and 29.7
of the decision of this Court in the case of Narinder Singh
(supra) should be read harmoniously and to be read as a whole
and in the circumstances stated hereinabove"
Learned Counsel for both the parties are present before this
Court and submitted that the charge sheet including the
proceedings of the case be quashed on the basis of compromise
entered into the parties.
The learned A.G.A. has no objection as parties to the dispute
relating to matrimonial mater have entered into compromise.
Considering the facts of the present case as well as the principle
of law laid down by Hon'ble Supreme Court as mentioned
above, matrimonial dispute between the husband and wife
should be a quashed when the parties have resolved their entire
dispute amongst themself through compromise duly filed and
verified by the Court. There is another aspect of the case that
F.I.R. has been lodged under Sections 498-A, 323 IPC and 3/4
D.P. Act, which will come under category specified in para
No.29.4 laid down by Hon'ble Apex Court in Narinder Singh
(supra) and in category specified in para No.15.1 laid down by
Apex Court in State of Madhya Pradesh vs. Laxmi Narayan
and others (supra) regading which proceedings relating to
matrimonial dispute can be quashed in exercise of power under
In view of the discussion made above, it would be unnecessary
to drag these proceeding, as continuation of the criminal
proceeding despite settlement and compromise would amount
to abuse of process of law accordingly, the instant application
under Section 482 Cr.P.C. is allowed on the basis of
compromise dated 16.03.2022 as verified on 30.03.2022. The
proceeding of cognizance order dated 02.08.2021 and charge
sheet No.1 dated 07.04.2021 filed in Case No.9956 of 2021
arising out of Case Crime No.0018 of 2021, under Sections
498-A, 323 of IPC and 3/4 of D.P. Act, Police Station-Mahila
Thana, District-Kannauj including the entire proceedings of the
case are hereby quashed. No order as to costs.
Digitally signed by PRITI SHARMA Order Date :- 2.6.2022/PS | The Allahabad High Court has observed that matrimonial dispute between the husband and wife should be quashed when the parties have resolved their entire dispute amongst themself through a compromise deed duly filed and verified by the Court.
The Bench of Justice Chandra Kumar Rai observed thus as it quashed criminal proceedings initiated by an FIR lodged by the wife against the husband and his family members under Sections 498-A, 323 IPC, and Section 3/4 of D.P. Act
The Court ordered this as it took into account the compromise deed executed in March 2021 between both the parties, which was also duly verified and sent to the High Court along with a verification report by the lower court.
Essentially, before the Court, the applicants (husband and his family members) submitted that the proceeding of a criminal case under Sections 498-A,323 IPC, and Section ¾ of D.P. Act be quashed as parties to dispute have entered into compromise which have been verified also by courts below.
It was further submitted that applicant No.1 (Husband) and opposite party No.2 (Wife) along with their children are living together as such no useful purpose will be served to drag the proceedings further.
In view of this, the Court perused the judgments of the Apex Court in the cases of Gian Singh vs. State of Punjab and another (2012) 10 Supreme Court Cases 303, Narinder Singh and others Vs.State of Punjab and other (2014) 6 Supreme court cases 466 and State of Madhya Pradesh vs. Laxmi Narayan and others (2019) 5 Supreme court cases 688.
Further, the Court remarked thus:
"Considering the facts of the present case as well as the principle of law laid down by Hon'ble Supreme Court as mentioned above, matrimonial dispute between the husband and wife should be a quashed when the parties have resolved their entire dispute amongst themself through compromise duly filed and verified by the Court. There is another aspect of the case that F.I.R. has been lodged under Sections 498-A, 323 IPC and 3/4 D.P. Act, which will come under category specified in para No.29.4 laid down by Hon'ble Apex Court in Narinder Singh (supra) and in category specified in para No.15.1 laid down by Apex Court in State of Madhya Pradesh vs. Laxmi Narayan and others (supra) regading which proceedings relating to matrimonial dispute can be quashed in exercise of power under Section-482 Cr.P.C."
Consequently, the proceeding of cognizance order and charge sheet under Sections 498-A, 323 of IPC and 3/4 of D.P. Act in the instant case including the entire proceedings of the case were quashed.
Case title - Ram Pravesh And 3 Other v. State of U.P. and Another [APPLICATION U/S 482 No. - 650 of 2022] |
Case :- APPLICATION U/S 482 No. - 12850 of 2021
Counsel for Applicant :- A Kumar Srivastava,Anand Kumar
Counsel for Opposite Party :- G.A.
Heard learned counsel for the applicant, learned A.G.A. for the
State and perused the record.
This Application U/s 482 Cr.P.C. has been filed with a prayer to
quash the entire criminal proceeding of Special S.T. No. 187 of
2020 U/s 323, 504 and 506 I.P.C. and Section 3(1)(D), Dha
SC/ST Act, P.S. Naini, District Prayagraj pending before
learned Special Judge SC/ST Act, Allahabad (Prayagraj) arising
out of Case Crime No. 0223 of 2020 U/s 323, 504, 506 I.P.C.
Prayagraj alongwith charge-sheet dated 09.07.2020 submitted
by the police against the applicant for the offence as well as
cognizance order dated 2.12.2020 passed by learned Special
In Girish Kumar Suneja v. CBI, (2017) 14 SCC 809, three
Judge Bench of Hon'ble Apex Court has made following
"21. The concept of an intermediate order was further elucidated in
Madhu Limaye v. State of Maharashtra by contradistinguishing a final
order and an interlocutory order. This decision lays down the principle
that an intermediate order is one which is interlocutory in nature but when
reversed, it has the effect of terminating the proceedings and thereby
resulting in a final order. Two such intermediate orders immediately come
to mind—an order taking cognizance of an offence and summoning an
accused and an order for framing charges. Prima facie these orders are
interlocutory in nature, but when an order taking cognizance and
summoning an accused is reversed, it has the effect of terminating the
proceedings against that person resulting in a final order in his or her
favour. Similarly, an order for framing of charges if reversed has the effect
of discharging the accused person and resulting in a final order in his or
her favour. Therefore, an intermediate order is one which if passed in a
certain way, the proceedings would terminate but if passed in another
way, the proceedings would continue.
22. The view expressed in Amar Nath and Madhu Limaye was followed in
K.K. Patel v. State of Gujarat wherein a revision petition was filed
challenging the taking of cognizance and issuance of a process. It was
It is now well-nigh settled that in deciding whether an order challenged is
interlocutory or not as for Section 397(2) of the Code, the sole test is not
whether such order was passed during the interim stage (vide Amar Nath
v. State of Haryana, Madhu Limaye v. State of Maharashtra, V.C. Shukla v.
State through CBI and Rajendra Kumar Sitaram Pande v. Uttam. The
feasible test is whether by upholding the objections raised by a party, it
would result in culminating the proceedings, if so any order passed on
such objections would not be merely interlocutory in nature as envisaged
in Section 397(2) of the Code. In the present case, if the objection raised
by the appellants were upheld by the Court the entire prosecution
proceedings would have been terminated. Hence, as per the said standard,
23. We may note that in different cases, different expressions are used for
the same category of orders—sometimes it is called an intermediate order,
sometimes a quasi-final order and sometimes it is called an order that is a
matter of moment. Our preference is for the expression "intermediate
order" since that brings out the nature of the order more explicitly."
From the perusal of the prayer made by applicant, it is clear that
applicant has prayed to quash the cognizance order dated
2.12.2020 passed by learned Special Judge SC/ST Act,
Allahabad (Prayagraj) which reads as follows:
In Re: Provision of Section 14a of SC/ST (Prevention of
Atrocities) Amendment Act, 2015, full Bench of this Court has
"B. Whether in view of the provisions contained in Section 14-A of the
Amending Act, a petition under the provisions of Article 226/227 of the
Constitution of India or a revision under Section 397 of the Code of
Criminal Procedure or a petition under Section 482 Cr.P.C., is
maintainable. OR in other words, whether by virtue of Section 14-A of the
Amending Act, the powers of the High Court under Articles 226/227 of the
Constitution or its revisional powers or the powers under Section 482
We therefore answer Question (B) by holding that while the constitutional
and inherent powers of this Court are not "ousted" by Section 14A, they
cannot be invoked in cases and situations where an appeal would lie
under Section 14A. Insofar as the powers of the Court with respect to the
revisional jurisdiction is concerned, we find that the provisions of Section
397 Cr.P.C. stand impliedly excluded by virtue of the special provisions
made in Section 14A. This, we hold also in light of our finding that the
word "order" as occurring in sub-section(1) of Section 14A would also
Perusal of the record reveals that applicant has also prayed to
quash cognizance order dated 2.12.2020 passed by Special
Judge SC/ST Act, Allahabad (Prayagraj) by which learned
Special Judge SC/ST Act has summoned the applicant to face
the trial U/s 323, 504 and 506 I.P.C. and Section 3(1)(D), Dha
SC/ST Act to face the trial.
In Girish Kumar Suneja v. CBI (Supra), Honble Apex Court in
para 21 has specifically stated referring the judgement of
Madhu Limaye Vs. State of Maharashtra (1997) 4 SCC 551
that taking cognizance of an offence and summoning the
accused is intermediate order, thus impugned cognizance order
dated 2.12.2020 is an intermediate order.
Now it is to be seen whether Application U/s 482 Cr.P.C. lies
against the impugned cognizance order dated 2.12.2020 or
appeal will lie under Section 14A(1) of the S.C./S.T. Act.
Relevant portion of Section 14A(1) of the S.C./S.T. Act. are
"14A. Appeals.- (1) Notwithstanding anything contained in the
Code of Criminal Procedure, 1973 (2 of 1974), an appeal shall
lie, from any judgment, sentence or order, not being an
interlocutory order, of a Special Court or an Exclusive Special
Court, to the High Court both on facts and on law."From the
perusal of provisions of Section 14A(1) of the Scheduled Castes
and the Scheduled Tribes (Prevention of Atrocities Act), 1989, it
is clear that an Appeal shall lie from any judgement,
cognizance order, order not being interlocutory order of Special
Court, or an exclusive Special Court to the High Court, both on
Full Bench of this Court in Re: Provision of Section 14a of
SC/ST (Prevention of Atrocities) Amendment Act, 2015 while
answering question B has specifically stated- "we hold also in
light of our finding that the word "order" as occurring in sub-
section(1) of Section 14A would also include intermediate
Thus if any intermediate order is passed by Special Court or an
exclusive Special Court in case relating to an offence in the
S.C./S.T. Act, that will come in the category of order as
provided under Section 14A(1) of SC/ST Act against which
only an appeal shall lie before the High Court, both on facts and
on law.
In view of the above discussion, I am of the considered opinion
that Application U/s 482 Cr.P.C. cannot be filed against
cognizance order dated 2.12.2020 passed by learned Special
This Application U/s 482 Cr.P.C. is disposed of with the
observation that revisionist is permitted to file fresh petition
before the appropriate forum. | The Allahabad High Court on Tuesday held that an Application U/s 482 Cr.P.C. can't be filed against a cognizance order passed by Special Judge in an SC/ST Act Offence and that against such an order, only an appeal shall lie before the High Court under Section 14A(1) of the S.C./S.T. Act.In this matter, an application under 482 CrPC was moved to pray to quash the cognizance order passed by...
The Allahabad High Court on Tuesday held that an Application U/s 482 Cr.P.C. can't be filed against a cognizance order passed by Special Judge in an SC/ST Act Offence and that against such an order, only an appeal shall lie before the High Court under Section 14A(1) of the S.C./S.T. Act.
In this matter, an application under 482 CrPC was moved to pray to quash the cognizance order passed by Special Judge SC/ST Act, Allahabad (Prayagraj) under sections 323, 504, 506 I.P.C. and Section 3(1)(D), Dha SC/ST Act against the applicant
It may be noted that Section 14A (1) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 commences with a non-obstante clause and is designed to override the general provisions contained in the Cr.P.C. Let's read, what does it say:
"14A. Appeals.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an appeal shall lie, from any judgment, sentence or order, not being an interlocutory order, of a Special Court or an Exclusive Special Court, to the High Court both on facts and on law."
In simpler terms, under Section 14A(1) of the SC/ST Act, an appeal shall lie from any judgment, cognizance order, order not being interlocutory order of Special Court, or an exclusive Special Court to the High Court, both on facts and on the law.
Essentially, this means that while the constitutional and inherent powers of this Court are not "ousted" by Section 14A, they cannot be invoked in cases and situations where an appeal would lie under Section 14A and this position of law has already been accepted by the Top Court in Re: Provision of Section 14a of SC/ST (Prevention of Atrocities) Amendment Act, 2015.
Now, the only question before the Court was - as to whether the word "order" as occurring in subsection (1) of Section 14A would also include intermediate orders and as to whether taking cognizance of an offence and summoning the accused is intermediate order.
To answer this, the Bench of Justice Anil Ojha referred to the Supreme Court's ruling in the case of Girish Kumar Suneja v. CBI, (2017) 14 SCC 809, in which it was held that taking cognizance of an offence and summoning the accused is an intermediate order.
Further, referring to Re: Provision of Section 14a of SC/ST (supra), the Court held that the word "order" as occurring in subsection(1) of Section 14A would also include intermediate orders.
Against this backdrop, the Court thus:
"Thus if any intermediate order is passed by Special Court or an exclusive Special Court in case relating to an offence in the S.C./S.T. Act, that will come in the category of order as provided under Section 14A(1) of SC/ST Act against which only an appeal shall lie before the High Court, both on facts and on law. In view of the above discussion, I am of the considered opinion that Application U/s 482 Cr.P.C. cannot be filed against cognizance order dated 2.12.2020 passed by learned Special Judge, S.C./S.T. Act, Allahabad (Prayagraj)."
Therefore, Application U/s 482 Cr.P.C. was disposed of with the liberty to the applicant to file a fresh petition before the appropriate forum.
Case title - Sher Ali v. State of U.P. and Another
Read Order |
Challenging the order and decree, dated 30.06.2010, passed in
M.V.O.P.No.532 of 2008 on the file of the Chairman, Motor
Accidents Claims Tribunal-cum-Principal District Judge, Medak at
Sangareddy (for short “the Tribunal”), the claimants filed the
present appeal.
The claimants, who are the husband and children of one
V.Pushpa (hereinafter referred to as “the deceased”), filed a petition
under Section 166 of the Motor Vehicles Act claiming compensation
of Rs.4,50,000/- for the death of the deceased, who died in a motor
vehicle accident that occurred on 21.05.2006. It is stated that on that
day the deceased, along with others, was traveling in Innova Car
bearing No.AP 29 H-4329 from Shirdi, Tuljapur to Hyderabd and
when the said vehicle reached near Nirna Cross Roads on N.H.No.9,
the driver of the said vehicle drove it in a rash and negligent manner
with high speed and dashed to a Bus-stand building, due to which
the inmates of the vehicle including the deceased sustained grievous
injuries. Basing on the complaint, a case in Crime No.67 of 2006 has
been registered against the driver of the Car. Immediately after the
accident, the deceased was shifted to Government Hospital,
Mannaekkali and she died while shifting to Gandhi Hospital,
Secunderabad. It is further stated that the deceased was aged about
41 years and was earning Rs.4,500/- per month as maid servant.
Hence, the claimants filed claim-petition against the respondents 1
and 2, being the owner and insurer of the said Car.
Before the Tribunal, the 1st respondent remained ex parte and
the 2nd respondent filed counter denying the manner in which the
accident took place, age, avocation and earnings of the deceased and
the relationship of the claimants with the deceased. It is also denied
by the 2nd respondent that the vehicle involved in the accident was
insured with the 2nd respondent and the person, who drove the
vehicle, was having valid and subsisting driving licence to drive
such vehicle and the vehicle was roadworthy to ply. It is further
contended that the claimants are not entitled to claim interest on
non-pecuniary damages and also the interest claimed is highly
excessive. In the additional counter, it is stated by the 2nd
respondent that as per the police record, the crime vehicle was used
for hire purpose at the time of accident and the policy was issued for
private use, as such, the 1st respondent has violated the terms and
conditions of the policy and, therefore, the 1st respondent alone is
liable to pay the compensation and the 2nd respondent has no
liability to pay any compensation and the petition is liable to be
dismissed against the 2nd respondent.
Basing on the above pleadings, the Tribunal framed the
1) Whether the accident occurred due to the rash and
negligent driving of the driver of the crime vehicle?
2) Whether the petitioners are entitled for compensation, if so,
On behalf of the claimant, P.Ws.1 and 2 were examined and
got marked Exs.A1 to A5. On behalf of the respondents, R.W.1 was
examined and Exs.B1 to B4 were marked.
After analyzing the evidence available on record, the Tribunal
while awarding compensation of Rs.2,80,000/- with proportionate
costs and interest @ 7.5% per annum from the date of petition till
realization, held that since the deceased had traveled in a hired
vehicle, it is against the terms and conditions of the insurance policy
and, therefore, the Insurance Company is not liable to pay
compensation and it is the 1st respondent, the owner of the Car,
alone is liable to pay the compensation. Challenging the said
finding and also not being satisfied with the quantum of
compensation awarded by the Tribunal, the present appeal is filed
by the claimants.
Heard the learned Counsel appearing on either side and
perused the record.
Learned Counsel for the appellants/claimants submitted that
the Tribunal dismissed the claim against the 2nd respondent on the
ground that the 1st respondent has violated the terms and conditions
of the insurance policy by using the crime vehicle for hire purpose.
He further submitted that in case of violation of policy conditions
including driver of the offending vehicle not having valid driving
licence at the time of accident, gratuitous passenger etc., still the
Insurer has to pay the compensation to the claimants at the first
place and shall recover the same from the owner of the vehicle later.
In support of his contention, he relied upon the judgment of the
Apex Court in Manuara Khatun and others v. Rajesh Kumar and
others1. Insofar as the enhancement of compensation is concerned,
learned Counsel for the appellants/claimants would submit that as
per the principles laid down by the Apex Court in the recent
decisions, the income of the housewife is to be taken at Rs.3,000/-
per month and the claimants are also entitled to future prospects. It
is also submitted that the Tribunal did not award any amount under
conventional heads. Therefore, he prayed to enhance the
compensation awarded by the Tribunal.
On the other hand, the learned Standing Counsel for the
Insurance Company submitted that with regard to the quantum of
compensation, the Tribunal has adequately granted the
compensation and the same needs no interference by this Court.
Insofar as the liability is concerned, he submits that the vehicle was
used for hire purpose and the deceased was traveling in the vehicle
as gratuitous passenger and, therefore, the Tribunal has rightly
dismissed the claim against the 2nd respondent and the said order
does not require any interference.
On considering the arguments advanced by both the learned
Counsel, the issues that arise for consideration in this appeal are as
1. Whether the claimants are entitled for enhancement of
2. Whether the vehicle was used for hire purpose and
deceased, who was traveling in the vehicle, comes
under the purview of gratuitous passenger and if the
deceased comes under the purview of gratuitous
passenger, pay and recovery can be ordered against the
Admittedly, the claimants filed a claim-petition under Section
166 of the Motor Vehicles Act, and the rash and negligent act on the
part of the driver of the Innova Car No.AP 29 H 4329 was proved. A
perusal of the judgment of the Tribunal would show that after
considering the age and avocation of the deceased, the Tribunal has
rightly awarded an amount of Rs.2,80,000/- under the head of loss
of income, which needs no interference. However, in National
Insurance Company Limited Vs. Pranay Sethi and others2, the Apex
Court held that “the reasonable figures on conventional heads,
namely, loss of estate, loss of consortium and funeral expenses
should be Rs.15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively”.
A perusal of the impugned order would show that the Tribunal did
not award any amount under conventional heads. In view of the
law laid down by the Apex Court in Pranay Sethi’s case (2 supra), the
claimants are entitled to Rs.70,000/- under conventional heads.
Thus, in all the claimants are entitled to Rs.3,50,000/-.
Insofar as the liability of the 2nd respondent/Insurance
Company is concerned, the Tribunal observed that R.W.1 stated in
his evidence that in Ex.B4-161 Cr.P.C. statement, the witness,
Krishna Reddy, stated that they hired the Innova Vehicle and
traveled in it. In Rajendra Singh v. State of U.P. and another3, the
Apex Court held that “the statements under Section 161 Cr.P.C.
being wholly inadmissible in evidence, could not at all be taken into
consideration.” Relying upon the said judgment, in N.Rama
Krishna Reddy v. M.Santhakumari and another (C.R.P.No.2939 of
“It is well settled that a statement made under Section 161
Cr.P.C. is not a substantive piece of evidence. However, in
view of the proviso to Sub-section (1) of Section 162 Cr.P.C.,
the statement can be used for the limited purpose of
contradicting the maker thereof in the manner set out in the
said proviso.”
Further, in National Insurance Co. Ltd. V. Saju P.Paul4, the
Apex Court took note of entire previous case law on the subject
mentioned and examined the question in the context of Section 147
of the M.V. Act. While allowing the appeal filed by the Insurance
Company by reversing the judgment in Saju P.Paul v. National
Insurance Co. Ltd.5 of the High Court, it was held on facts that since
the victim was traveling in offending vehicle as “gratuitous
passenger” and hence, the insurance company cannot be held liable
to suffer the liability arising out of accident on the strength of the
insurance policy. However, the Apex Court keeping in view the
benevolent object of the Act and other relevant factors arising in the
case, issued the directions against the Insurance Company to pay the
awarded sum to the claimants and then to recover the said sum from
the insured in the same proceedings by applying the principle of
“pay and recover”.
Recently, relying upon the said judgment, the Apex Court in
Manuara Khatun (1 supra) held that the direction to the Insurance
Company, being the insurer of the offending vehicle which was
found involved in causing accident due to negligence of its driver
needs to be issued directing them to first pay the awarded sum to
the claimants and then recover the paid awarded sum from the
owner of the offending vehicle in execution proceedings as per the
law laid down in Para No.26 of National Insurance Co. Ltd. V. Saju
P.Paul (3 supra).
It is not in dispute that the Innova Car was insured and
Ex.B2-Insurance Policy clearly indicates that the accident has
occurred during the policy period, it can be said that the deceased
was travelled as a gratuitous passenger in the crime vehicle. In Anu
the Apex Court while dealing with the case of gratuitous passenger
directed the insurer to pay the awarded sum to the claimant therein
and recover the same from the insured in the same proceedings.
For the aforesaid discussion and in view of the benevolence
object of the Motor Vehicles Act, even though the liability of
Insurance Company is exonerated, still the insurance company is
liable to pay the compensation to the claimants at the first instance
and then recover the same from the owner of the offending vehicle
by invoking the principle “pay and recover” as laid down by the Apex
Court in Manuara Khatun v. Rajesh Kr. Singh (1 supra).
Accordingly, the appeal is partly allowed by enhancing the
compensation amount awarded by the Tribunal from Rs.2,80,000/-
to Rs.3,50,000/- . The enhanced amount shall carry interest @ 7.5%
per annum from the date of passing of the order i.e., from 30.06.2010
till the date of realization. The 2nd respondent-Insurance Company
is directed to deposit the said amount to the credit of the O.P. along
with accrued interest within two months from the date of receipt of
a copy of this judgment, and then recover the said amount from the
1st respondent-owner. The enhanced amount shall be apportioned
among the claimants equally. There shall be no order as to costs.
Miscellaneous petitions, if any pending in this appeal, shall
stand dismissed. | Relying on the Apex Court decision in National Insurance Company Limited v. Pranay Sethi & Ors., the Telangana High Court recently ruled that the compensation in motor vehicle accident death claims should include amount under conventional heads viz. loss of estate, loss of consortium, and funeral expenses. Brief facts of the case The claimants who are the husband and children...
Relying on the Apex Court decision in National Insurance Company Limited v. Pranay Sethi & Ors., the Telangana High Court recently ruled that the compensation in motor vehicle accident death claims should include amount under conventional heads viz. loss of estate, loss of consortium, and funeral expenses.
Brief facts of the case
The claimants who are the husband and children of the deceased filed a petition under Section 166 of the Motor Vehicles Act claiming compensation of Rs. 4,50,000/- for the death of the deceased who died in a motor accident. It was stated that due to rash and negligent driving of the vehicle driver, the inmates of the vehicle including the deceased sustained grievous injuries. The deceased was aged about 41 years and was earning Rs. 4,500/- per month as maid servant. Hence, the claimants filed claim petition against the owner and insurer of the car.
The Tribunal awarded compensation of Rs. 2,80,000/- with proportionate costs and interest at 7.5% per annum from the date of petition till realisation, payable by the owner of the vehicle (as the terms of insurance policy were violated).
The claimants filed the appeal challenging the quantum of compensation awarded by the Motor Accidents Claim Tribunal. It was also stated that even though the deceased was a 'gratuitous passenger', the Insurance Company is liable to pay the awarded sum to the claimants and then to recover the said sum from the insured.
Issue
Whether the claimants are entitled for enhancement of compensation?
Whether pay and recovery can be ordered against the insurer?
Court's ruling
The court observed that the Tribunal had after considering the age, avocation of the deceased rightly awarded an amount of Rs. 2,80,000/- under the head loss of income, which needs no interference.
However, the court noted that in National Insurance Company Limited v. Pranay Sethi and Ors., 2017, the Supreme court had held that "the reasonable figures on conventional heads, namely, loss of estate, loss of consortium, and funeral expenses should be Rs. 15,000/- , Rs. 40,000/- and Rs. 15,000/- respectively."
The court noted that the Tribunal has not awarded any amount under conventional heads and therefore, an amount of total Rs. 70,000/- under conventional heads needs to be paid to claimants. Thus, in all claimants are entitled to Rs. 3,50,000/-.
So far as the second issue is concerned, the Court noted in Manuara Khatun v. Rajesh Kr. Sing it was held that the direction to the Insurance Company, being the insurer of the offending vehicle which was found involved in causing accident due to negligence of its driver needs to be issued directing them to first pay the awarded sum to the claimants and then recover the paid awarded sum from the owner of the offending vehicle in execution proceedings.
Accordingly, the compensation amount awarded by tribunal was enhanced and Insurance Company was directed to deposit the said amount to the credit of the claimant along with accrued interest within two months, and then recover the said amount from the vehicle owner.
Cause Title: V. SHIVAJI & ORS. v. K. MURALI & ANR. |
S/O LATE FAIZUDDIN, R/O VILL- JORGARH, P.S.-TEZPUR, PIN-784001, DIST-
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA,
MINISTRY OF HOME AFFAIRS, NEW DELHI-110001
REPRESENTED BY THE CHIEF ELECTION COMMISSION OF INDIA
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
REPRESENTED BY THE STATE COORDINATOR ACHYUT PLAZA
Advocate for the Respondent : ASSTT.S.G.I.
Heard Mr. A. Paul, learned counsel for the petitioner. Also heard Ms. L. Devi, learned
counsel appearing on behalf of Mr. R.K. Dev Choudhury, learned Asstt. SGI for respondent
no.1 & 4 and ; Ms. A. Verma, learned Special Standing Counsel, F.T. appearing for respondent
nos.6 & 7; Mr. A. Bhuyan, learned Standing Counsel, ECI, appearing for respondent no.2 and
Ms. U. Das, learned Government Advocate, Assam, appearing for respondent nos.3 & 5.
2. Considering the nature of the case, we are of the opinion that the present petition can
be disposed of at the motion stage itself without issuing any formal notice to the
respondents.
3. The present petition has been filed by the petitioner, namely, Md. Maynul @ Moinul
Hoque @ Md. Moinul, son of late Faizuddin, resident of village Jorgarh under P.S.:Tezpur,
Dist.:Sonitpur, Assam on being aggrieved by the impugned ex parate order dated 31.12.2020
passed by the Foreigners Tribunal, Tezpur No.1, Assam, in F.T.(D) Case No.3512/2012,
declaring the petitioner to be a foreigner of post 1971 stream.
4. Learned counsel for the petitioner submits that earlier in another proceeding i.e. in F.T.
(D) Case No.8312/2012, the Foreigners Tribunal Tezpur 1 st, Sonitpur by order dated
31.08.2017 had held that the petitioner, namely, Md. Moinul @ Moinul Hoque, son of Late
Foizuddin (Abdul Hussain), resident of village Jorgarh under P.S.Tezpur, Dist. Sonitpur, Assam
had been able to discharge his onus to prove that he is not a foreigner but an Indian.
Accordingly, the reference was answered in negative against the State and in favour of the
petitioner/proceedee. However, the Foreigners Tribunal Tezpur No.1, Assam in the subsequent
proceeding i.e. in F.T.(D) Case No.3512/2012 took a view that the proceedee neither
submitted his representation nor adduced his evidence in support of his claim that he is an
Indian Citizen and accordingly, failed to prove that he is an Indian citizen.
5. The Learned counsel for the petitioner submits that though the petitioner had
appeared before the Tribunal after receiving the notice, the reason for the petitioner’s inability
to appear before the Foreigners Tribunal, Tezpur No.1 on several occasions was because of
ongoing COVID pandemic and as such, it has been submitted that the said ex parte order
dated 31.12.2020 may be set aside by remanding the matter to the Foreigners Tribunal,
more particularly, in the light of the earlier opinion referred by the same Tribunal on
31.08.2017 in F.T.(D) Case No.8312/2012.
6. According to the learned counsel for the petitioner since there is a similarity in the
names and particulars of the proceedee in both the proceedings, the second proceeding in
respect of F.T.(D) Case No.3512/2012 before the Foreigners Tribunal, Tezpur (1 st), Assam
could not be sustainable in terms of the decision of the Hon’ble Supreme Court passed in
Abdul Kuddus vs Union of India (2019) 6 SCC 604, as the proceeding before the
Foreigners Tribunal, Tezpur (1st), Assam in respect of F.T.(D) Case No.3512/2012 is quasi
judicial and the principle of res judicata will be applicable in this proceeding.
7. It has been clearly mentioned in Abdul Kuddus (supra) that if there had been an order by
the Foreigners Tribunal in favour of a person determining the citizenship, the said decision will
be binding on subsequent proceedings against the same person and there cannot be another
proceeding to re-determine the citizenship of the person, by applying the principle of res
8. In the present case, since this aspect could not be considered by the Foreigners
Tribunal as it was decided ex parte, we are also of the view that the matter requires to be
decided afresh by the Tribunal keeping in mind the earlier opinion dated 31.08.2017 in the
light of the decision in Abdul Kuddus (supra).
Only when the Tribunal comes to a finding that the present proceedee is not the same
person who was proceeded and was found to be an Indian in F.T.(D) Case No.8312/2012, the
impugned order will be revived and the order of the Tribunal can be challenged by the
petitioner both on the issue of identity of the petitioner and other grounds raised in this
9. In view of above, without entering in the merit of the case we remand the matter to the
Foreigners Tribunal, Tezpur (1st), Sonitpur, Assam by setting aside the impugned order
31.12.2020 passed by the Foreigners Tribunal, Tezpur No.1, Assam, in F.T.(D) Case
No.3512/2012 to examine whether the petitioner is the same person who was proceded in
F.T.(D) Case No.8312/2012by the Foreigners Tribunal, Tezpur 1 st, Sonitpur. The Foreigners
Tribunal Tezpur No.1, Sonitpur shall decide first as to whether the petitioner is the same
person who was proceeded in F.T.(D) Case No.8312/2012 or not, for which the petitioner
shall appear before the Foreigners Tribunal on 14.02.2022 to enable the Tribunal to examine
that he is the same person who was proceeded in F.T.(D) Case No.8312/2012 .
10. Accordingly, this shall be the preliminary issue which is to be decided by the
Foreigners Tribunal 1st Tezpur, in F.T.(D) Case No.3512/2012 as to whether the present
proceedee is the same person who was earlier declared an Indian Citizen in F.T.(D) Case
No.8312/2012 by the Foreigners Tribunal Tezpur (1 st), Sonitpur and if it is found that the
petitioner is the same person who was proceeded in F.T.(D) Case No.8312/2012 by the
Foreigners Tribunal Tezpur (1st), Sonitpur, the present proceeding shall immediately be
concluded in favour of the petitioner on the basis of the order passed in F.T.(D) Case
No.8312/2012 on 31.08.2017 where the petitioner was declared an Indian citizen.
If, however, the decision is otherwise, the petitioner will be at liberty to challenge this
opinion as well as the other findings by approaching this Court again.
11. It is made clear that since the nationality of the petitioner is already under cloud, he
will remain on bail on furnishing a bail bond of Rs. 5,000/- (Rupees five thousand) with one
local surety of the like amount to the satisfaction of the Superintendent of Police (Border),
Sonitpur during the pendency of the proceeding before the Tribunal. The concerned
Superintendent of Police (Border) shall also take steps for capturing the fingerprints and
biometrics of the iris of the petitioner. The petitioner also shall not leave the jurisdiction of
Sonitpur district without furnishing the details of the place of destination and necessary
information including contact number to the Superintendent of Police (Border), Sonitpur.
12. With the above observations and directions, the writ petition stands disposed of.
13. Copy of this order be furnished to the Superintendent of Police (B), Sonitpur for doing
the needful. | The Gauhati High Court on Monday set aside an order passed by a Foreigners' Tribunal declaring a resident of Jorgah village, Sonitpur as a foreigner after noting that the concerned Tribunal had earlier declared him to be an Indian citizen but had subsequently passed an ex-parte order declaring him to be a foreigner. A Bench comprising Justices Kotiswar Singh and Malashri Nandi...
The Gauhati High Court on Monday set aside an order passed by a Foreigners' Tribunal declaring a resident of Jorgah village, Sonitpur as a foreigner after noting that the concerned Tribunal had earlier declared him to be an Indian citizen but had subsequently passed an ex-parte order declaring him to be a foreigner.
A Bench comprising Justices Kotiswar Singh and Malashri Nandi set aside the impugned ex-parte order and remanded the matter back to the concerned Foreigners' Tribunal. Accordingly, the Tribunal was directed to first determine as to whether the petitioner is the same person who had earlier been declared as an Indian Citizen and thus observed,
"Accordingly, this shall be the preliminary issue which is to be decided by the Foreigners Tribunal 1st Tezpur, in F.T.(D) Case No.3512/2012 as to whether the present proceedee is the same person who was earlier declared an Indian Citizen in F.T.(D) Case No.8312/2012 by the Foreigners Tribunal Tezpur (1st), Sonitpur and if it is found that the petitioner is the same person who was proceeded in F.T.(D) Case No.8312/2012 by the Foreigners Tribunal Tezpur (1st), Sonitpur, the present proceeding shall immediately be concluded in favour of the petitioner on the basis of the order passed in F.T.(D) Case No.8312/2012 on 31.08.2017 where the petitioner was declared an Indian citizen. If, however, the decision is otherwise, the petitioner will be at liberty to challenge this opinion as well as the other findings by approaching this Court again"
Background
In the instant case, one Md. Maynul @ Moinul Hoque had moved the instant plea against the impugned order of the Foreigners Tribunal, Tezpur No.1, Assam dated December 31, 2020 declaring him to be a foreigner of post-1971 stream.
The Court was apprised by the counsel appearing for the petitioner that the Foreigners Tribunal Tezpur 1st, Sonitpur vide order dated August 31, 2017 had held that the petitioner had been able to discharge his onus to prove that he is not a foreigner but an Indian. Accordingly, the reference was answered in negative against the State and in favour of the petitioner. However, the Foreigners Tribunal Tezpur No.1, Assam in the subsequent proceeding i.e. in F.T.(D) Case No.3512/2012 vide order dated December 31, 2020, had taken a view that the petitioner had neither submitted his representation nor adduced his evidence in support of his claim that he is an Indian Citizen and accordingly had failed to prove that he is an Indian citizen.
The Court was further apprised that although the petitioner had appeared before the Tribunal after receiving the notice, the reason for the petitioner's inability to appear before the Foreigners Tribunal, Tezpur No.1 on several occasions was because of ongoing COVID pandemic. Accordingly, it was prayed that the impugned order dated December 31, 2020 be set aside by remanding the matter to the Foreigners Tribunal especially in light of the earlier opinion preferred by the same Tribunal vide order dated August 31, 2017.
It was further contended that since there is a similarity in the names and particulars of the proceedee/petitioner in both the proceedings, the second proceeding in respect of F.T.(D) Case No.3512/2012 dated December 31, 20220 before the Foreigners Tribunal, Tezpur (1st), Assam is not sustainable in view of the Supreme Court decision in Abdul Kuddus v. Union of India as the principle of res judicata will be applicable for the subsequent proceeding.
Observations
Taking cognisance of the grievance raised, the Court observed that the Supreme Court in Abdul Kuddus v. Union of India had held that if there had been an order by the Foreigners Tribunal in favour of a person determining the citizenship, the said decision will be binding on subsequent proceedings against the same person and there cannot be another proceeding to re-determine the citizenship of the person, by applying the principle of res judicata.
"In the present case, since this aspect could not be considered by the Foreigners Tribunal as it was decided ex parte, we are also of the view that the matter requires to be decided afresh by the Tribunal keeping in mind the earlier opinion dated 31.08.2017 in the light of the decision in Abdul Kuddus (supra)", the Bench observed further.
The Court further clarified that only when the Tribunal comes to a finding that the present proceedee is not the same person who was proceeded and was found to be an Indian in F.T.(D) Case No.8312/2012, the impugned order will be revived and the order of the Tribunal can be challenged by the petitioner both on the issue of the identity of the petitioner and other grounds raised in this petition.
Accordingly, the Court directed,
"We remand the matter to the Foreigners Tribunal, Tezpur (1st), Sonitpur, Assam by setting aside the impugned order 31.12.2020 passed by the Foreigners Tribunal, Tezpur No.1, Assam, in F.T.(D) Case No.3512/2012 to examine whether the petitioner is the same person who was proceded in F.T.(D) Case No.8312/2012by the Foreigners Tribunal, Tezpur 1st, Sonitpur. The Foreigners Tribunal Tezpur No.1, Sonitpur shall decide first as to whether the petitioner is the same person who was proceeded in F.T.(D) Case No.8312/2012 or not, for which the petitioner shall appear before the Foreigners Tribunal on 14.02.2022 to enable the Tribunal to examine that he is the same person who was proceeded in F.T.(D) Case No.8312/2012."
The Court further averred that if it is found that the petitioner is the same person who was proceeded in F.T.(D) Case No.8312/2012 by the Foreigners Tribunal Tezpur (1st), Sonitpur, the present proceeding shall immediately be concluded in favour of the petitioner on the basis of the order passed in F.T.(D) Case No.8312/2012 on August 31, 2017 wherein the petitioner had been declared as an Indian citizen.
However, the Court ordered that since the nationality of the petitioner is already under dispute, he will remain on bail on furnishing a bail bond of Rs. 5,000/- with one local surety of the like amount to the satisfaction of the Superintendent of Police (Border), Sonitpur during the pendency of the proceeding before the Tribunal.
"The concerned Superintendent of Police (Border) shall also take steps for capturing the fingerprints and biometrics of the iris of the petitioner. The petitioner also shall not leave the jurisdiction of Sonitpur district without furnishing the details of the place of destination and necessary information including contact number to the Superintendent of Police (Border), Sonitpur", it was directed further.
Case Title: Md. Maynul v. Union of India |
National Insurance Company Limited through its Assistant Manager
Satya Devi (since deceased) through her Legal Heirs and others
...Respondent(s)
CORAM: HON'BLE MR. JUSTICE ARVIND SINGH SANGWAN
Present: Mr. Om Pal Sharma, Advocate
for the appellant.
Prayer in this appeal, filed by the Insurance Company, is for
staying the operation of impugned award dated 8.4.2022 passed by the
Motor Accident Claims Tribunal, Patiala.
Brief facts of the case are that on 22.7.2015 one Ved
Parkash, husband of claimant-Satya Devi met with a motor vehicle
accident and later on died and her legal representatives filed the claim
petition which was allowed vide impugned award dated 8.4.2022.
The Tribunal recorded that the deceased was about 73 years
and was earning Rs.35,000/- per month as reflected in the income-tax
returns Ex.C7 to Ex.C10 for the year 2014-15 and he was also getting
remuneration of Rs.70,000/- per annum from a firm Sarup and Sons.
FAO-2981-2022 (O&M) -2-
The Tribunal by deducting the interest, assessed the total income of
Rs.70,000/- per annum as notional income and by deducting 1/3 rd
towards the personal expenditure applied the multiplier of 3 and
additionally granted Rs.16,500/- towards the funeral expenses. The
Tribunal, accordingly, awarded the compensation of Rs.1,79,000/-, along
with interest @ 7.5% per annum.
Counsel for the appellant has argued that the Tribunal has
wrongly treated that during the pendency of the claim proceedings
Satya Devi and her LRs were impleaded on the basis of a registered
Will dated 6.8.2018 executed by Satya Devi in favour of nephews of
deceased Ved Parkash. It is further argued that since they were
issueless, the Tribunal has wrongly awarded the compensation. The
counsel has next argued that one of the witnesses CW1 appeared for
examination-in-chief but his cross-examination could not be
conducted and, therefore, the said evidence cannot be taken into
Counsel for the appellant has lastly argued that
considering the age of the deceased as 73 years, no multiplier should
have been applied.
After hearing the counsel for the appellant, I find no merit
in the appeal on the ground, firstly, apart from Rajesh Kumar CW1,
Satya Devi herself appeared as CW2 and proved the factum of
negligence. Secondly, the appellant-Insurance Company has not
contested the Will executed by Satya Devi in favour of Ved Parkash
and, therefore, in the absence of any challenge to the validity of the
Will, the Tribunal has rightly held that the respondent-Ved Parkash
and other are the legal heirs of Satya Devi.
Even otherwise, it is held by the Hon’ble Supreme Court in
Limited that failure to cross-examine the eye-witness despite availing
opportunity must lead to inference of tacit admission of testimony of
such witness.
It is also held by the Hon’ble Supreme Court in Civil
Appeal No.4800 of 2021 (decided on 16.8.2021) titled Oriental
Insurance Company Limited Vs. Kahlon @ Jasmail Singh Kahlon that
on the death of original claimant, the Motor Accident Claim petition
does not abate and legal representatives can be substituted.
In view of the above, there is no merit in the present
appeal and the same is, therefore, dismissed.
Whether speaking/reasoned : YES / NO
Whether reportable : YES / NO | The Punjab and Haryana High Court has recently dismissed an appeal preferred by the Insurance Company for staying the operation of award passed by the Motor Accident Claims Tribunal whereby the tribunal allowed the petition of legal representatives of the claimant and awarded the compensation of Rs.1,79,000/- with interest @ 7.5% per annum. Ved Parkash, husband of claimant-Satya...
The Punjab and Haryana High Court has recently dismissed an appeal preferred by the Insurance Company for staying the operation of award passed by the Motor Accident Claims Tribunal whereby the tribunal allowed the petition of legal representatives of the claimant and awarded the compensation of Rs.1,79,000/- with interest @ 7.5% per annum.
Ved Parkash, husband of claimant-Satya Devi met with a motor vehicle accident and later on died and her legal representatives filed the claim petition which was allowed vide impugned award dated 8.4.2022.
The appellant argued that the Tribunal wrongly treated that during the pendency of the claim proceedings Satya Devi and her LRs were impleaded on the basis of a registered Will executed by Satya Devi in favour of nephews of deceased Ved Parkash. It is further argued that since they were issueless, the Tribunal has wrongly awarded the compensation.
The Tribunal by deducting the interest, had assessed the total income of Rs.70,000/- per annum as notional income and by deducting 1/3rd towards the personal expenditure, it had applied the multiplier of 3 and additionally granted Rs.16,500/- towards the funeral expenses. The Tribunal had accordingly awarded the compensation of Rs.1,79,000/-, along with interest @ 7.5% per annum.
The bench comprising Justice Arvind Singh Sangwan placed reliance on the judgement of Oriental Insurance Company Limited Vs. Kahlon @ Jasmail Singh Kahlon and held that the Motor Accident Claim petition does not abate on the death of original claimant, and can be substituted by legal representatives of the claimant.
After hearing the counsel for the appellant, the court opined that the instant appeal lacks merit because the factum of negligence has been proved by CW1 and CW2.
Moreover, 'will' executed by the claimant in favour of Ved Parkash has not been contested by the appellant-Insurance Company and in absence of any challenge with regard to the validity of the 'will', the Tribunal rightly concluded that the respondent-Ved Parkash and others are the legal heirs of the claimant.
Even otherwise, the court noted that failure to cross-examine eye-witness despite having availed the opportunity should lead to inference of tacit admission of such witness's testimony as per the judgement of Anita Sharma Vs. New India Assurance Company Limited.
Even otherwise, it is held by the Hon'ble Supreme Court in 2021(1) SCC 171 Anita Sharma Vs. New India Assurance Company Limited that failure to cross-examine the eye-witness despite availing opportunity must lead to inference of tacit admission of testimony of such witness.
In view of the above, finding no merits in the instant appeal, the court dismissed the same.
Case Title: National Insurance Company Limited through its Assistant Manager Vs. Satya Devi (since deceased) through her Legal Heirs and others |
This appeal filed under Section 37 of the Arbitration and Conciliation
Act, 1996 (the Act), is against the order dated 04.12.2017 in O.P.(Arb.)
No.105/2015 of the District Court, Kasaragod.
2. The appellant herein is the petitioner before the court below and
the claimant before the Arbitral Tribunal (AT). The respondent herein is the
respondent before the court below and the respondent before the AT. The
parties in this appeal will be referred to as described in the arbitral
3. The respondent awarded the work of ‘doubling of track between
Shornur and Mangalore, Cannanore-Uppala section: collection and stacking
of 50mm size machine crushed hard stone ballast alongside the
alignment/station yards/ on top of the new formation between Kottikulam
and Kasaragod stations (Balance works)’ to the claimant on 19.09.2000 for a
value of ₹ 1,19,39,274/-. Letter of Acceptance (LoA) was issued on
19.09.2000. The work was to be completed within a period of nine months,
that is, by 18.06.2001. Alleging breach on the part of the claimant, the
contract was terminated by the respondent before the expiry of the
completion period. Disputes arose between the parties. Arbitration
proceedings was initiated. The AT consisting of three Arbitrators passed an
award on 24.04.2015. The AT disallowed all the claims of the claimant
except claim no. 1 for release of an amount of ₹ 3,46,959/-, which amount
had been forfeited by the respondent towards risk liability amount. This
claim was partly allowed to the tune of ₹ 46,959/-. All the other claims
including the prayer for return of the Earnest Money Deposit (EMD) was
rejected. Aggrieved, the claimant/contractor took up the matter before the
District Court. The said Original Application filed under s.34 of the Act was
dismissed by the impugned order.
4. Heard Shri.Rahul Varghese, the learned counsel for the
appellant and Shri.Ananthakrishnan, the learned Standing Counsel for the
5. In the appeal memorandum it is stated that during the pendency
of the proceeding before the court below, the respondent released the EMD
amounting to ₹50,000/-. This according to the claimant has been done when
the respondent realized that it was illegal for them to have withheld the
same, especially when they had not suffered any loss or damage. Therefore,
the only point to be decided in this appeal is whether there is any infirmity in
the finding of the AT that the respondent is entitled to forfeit the security
deposit of ₹ 3 lakhs towards risk liability in the absence of any loss or
damage. According to the AT, the claimant had failed to execute the work
and hence the contract had been terminated at his risk and cost in terms of
Clause 62 of the General Conditions of Contract. An amount of ₹ 3 lakhs
deposited as security deposit and an amount of ₹ 46,959/- towards
advertisement charges had been deducted by the respondent from the final
bill as the amount towards risk liability. The AT concluded that since the
breach of the contract had been committed by the claimant/contractor, the
security deposit of ₹ 3 lakhs is liable to be forfeited and therefore out of the
total amount of ₹3,46,959/- claimed by the claimant, only an amount of ₹
46,959/- was allowed. However, in the award itself it is stated that no
loss/damage had been caused to the respondent. Therefore, it is submitted
by the learned counsel for the claimant/contractor that in such circumstances
the forfeiture of ₹3 lakhs deposited as security deposit is patently wrong,
illegal and perverse. Reference was made to the decisions in Fateh Chand
vs. Balkishan Dass [1963 SC 1405]; State of Kerala vs. United Shippers
and Dredgers Ltd. [AIR 1982 Ker 281]; Abdulla vs. State of Kerala
[2001 KHC 822] and Kailash Nath Associates vs. Delhi Development
Authority [(2015)4 SCC 136] in support of this argument.
6. Here we need to refer to Sections 73 and 74 of the Indian
“74 Compensation for breach of contract where penalty stipulated
for:-[When a contract has been broken, if a sum is named in the
contract as the amount to be paid in case of such breach, or if the
contract contains any other stipulation by way of penalty, the party
complaining of the breach is entitled, whether or not actual damage or
loss is proved to have been caused thereby, to receive from the party
who has broken the contract reasonable compensation not exceeding
the amount so named or, as the case may be, the penalty stipulated
for.”
7. As laid down in the aforesaid decisions, in a case coming under
Section 74, it is not necessary for the party claiming compensation under
this Section to prove that actual damage or loss has been caused. Then the
question is whether even in the absence of legal injury, compensation is
liable to be paid for breach simplicitor. Under Section 74, whether it is a
case of liquidated damages or penalty, what the party faced with the breach
gets is only reasonable compensation, subject to the limit of the amount
stipulated in the contract itself. Section 74 dispenses with proof of the extent
of real or actual or factual loss or damage, but provides for grant of
reasonable compensation, subject to the condition that it shall not exceed the
sum stipulated as penalty in the contract. The proof of the extent of loss or
damage suffered in fact, i.e., proof of the extent of actual damage or loss
suffered is dispensed with in Section 74. This would not mean that there
need not be any loss or damage. What is meant is only that proof of actual
damage or loss is not necessary.
8. In the case on hand, it cannot be Section 74 that could have
been invoked, because the Award does not say that any sum has been named
in the contract as the amount to be paid in case of breach. In other words,
the parties had never made a genuine pre-estimate of the amount to be paid
in the event of any damage or loss likely to be caused by the breach or that
there is any clause relating to liquidated damages in the contract.
“When a contract has been broken, the party who suffers by such
breach is entitled to receive, from the party who has broken the
contract, compensation for any loss or damage caused to him
thereby, which naturally arose in the usual course of things from
such breach, or which the parties knew, when they made the
contract, to be likely to result from the breach of it.
Such compensation is not to be given for any remote and
indirect loss or damage sustained by reason of the breach.”
10. The words 'loss or damage' in the aforesaid sections would
necessarily indicate that the party who complains of breach must have really
suffered some loss or damage apart from being faced with the mere act of
breach of contract. That is because every breach of every contract need not
necessarily result in actual loss or damage. Compensation payable under
Section 73, 74 as also under Section 75 is only for loss or damage caused by
the breach and not account of the mere act of breach. If in any case the
breach has not resulted in or caused any loss or damage to a party, he cannot
claim compensation.
11. Further, in Union of India v. Rampur Distillery and
Chemical Co. Ltd. (AIR 1973 SC 1098) the Apex Court held that a party
to a contract taking security deposit from the other party to ensure due
performance of the contract, is not entitled to forfeit the deposit on ground of
default when no loss is caused to him in consequence of such default. When
the question is one of forfeiture of security deposit in case of breach of
contract, such sum does not ipso facto go to the respondents. If the party
complaining is in a position to adduce evidence whereby the court can assess
reasonable compensation, then without proof of actual loss, damages will
not be awarded and amount mentioned by the contract will be penalty. In
such circumstances, it has been held that the security amount is liable to be
12. As noticed earlier, the Award in this case clearly says that no
loss or damage has been caused to the respondent. That being the position,
neither the provisions of Sections 73, 74 or 75 could have been invoked nor
are they applicable in this case. That being the position, the AT was certainly
wrong in rejecting the claim of the claimant for release of the amount of
security deposit of ₹ 3 lakhs. This finding in violation of the provisions of
Sections 73 to 75 of the Contract Act, is certainly in contravention of the
fundamental policy of Indian Law as contemplated in Section 34(2)(b)(ii) of
In the result, the appeal is allowed. The impugned order dated
4.12.2017 in O.P.(Arb.) No.105/2015 is set aside. The Award to the extent it
disallows Claim No.1 for the release of security deposit of ₹ 3 lakhs towards
risk liability amount, is set aside and the said claim shall stand allowed. The
amount has been withheld without any justification and therefore the amount
of ₹ 3 lakhs will be returned by the respondent to the claimant with interest
@ 6% p.a. from the date of moving the claim before the AT till realisation
and costs. | The Kerala High Court has recently ruled that in the case of a breach of contract, no compensation can be granted under Sections 73 and 74 of the Indian Contract Act unless such breach resulted in an actual loss or damage to the opposite party. A Division Bench of Justice P.B. Suresh Kumar and Justice C.S. Sudha opined that the words 'loss or damage' would necessarily indicate that...
The Kerala High Court has recently ruled that in the case of a breach of contract, no compensation can be granted under Sections 73 and 74 of the Indian Contract Act unless such breach resulted in an actual loss or damage to the opposite party.
A Division Bench of Justice P.B. Suresh Kumar and Justice C.S. Sudha opined that the words 'loss or damage' would necessarily indicate that the party who complains of breach must have really suffered some loss or damage apart from being faced with the mere act of breach of contract since every breach of every contract need not necessarily result in actual loss or damage.
"Compensation payable under Section 73, 74 as also under Section 75 is only for loss or damage caused by the breach and not account of the mere act of breach. If in any case the breach has not resulted in or caused any loss or damage to a party, he cannot claim compensation."
The Court also observed although it is not necessary for the party claiming compensation to prove that actual damage has been caused, what the party faced with the breach gets is only reasonable compensation under Section 74, subject to the limit of the amount stipulated in the contract itself.
"Section 74 dispenses with proof of the extent of real or actual or factual loss or damage, but provides for grant of reasonable compensation, subject to the condition that it shall not exceed the sum stipulated as penalty in the contract. The proof of the extent of loss or damage suffered in fact, i.e., proof of the extent of actual damage or loss suffered is dispensed with in Section 74. This would not mean that there need not be any loss or damage. What is meant is only that proof of actual damage or loss is not necessary."
The respondent awarded certain railway work between Shornur and Mangalore and between Kottikulam and Kasaragod stations to the appellant (a contractor) in 2000 for almost ₹1.20 crores to be completed within nine months.
Alleging breach on the appellant's part, the respondent terminated the contract before expiry of the completion period. As disputes arose between them, arbitration proceedings were initiated.
Around ₹ 3 lakhs was deposited as a security deposit and ₹46,959/- was deducted towards advertisement charges by the respondent from the final bill as the amount towards risk liability.
The appellant was the claimant before the Arbitral Tribunal which passed an award disallowing their claims except claim 1 for release of ₹ 3,46,959/-, the risk liability amount. This claim was partly allowed to the tune of ₹ 46,959/-. All the other claims were rejected. However, it was established that the breach had caused no actual loss or damage to the respondent.
Aggrieved by this, the appellant approached the District Court which was also dismissed. Challenging this order of the District Court, the appellant moved the High Court.
According to the Tribunal, since the breach of the contract had been committed by the appellant, the security deposit of ₹ 3 lakhs is liable to be forfeited and therefore, only an amount of ₹ 46,959/- was allowed.
However, in the award itself, it was stated that no loss/damage had been caused to the respondent. Therefore, Advocates Santha Varghese, Ranjith Varghese and Rahul Varghese appearing for the appellants submitted that the forfeiture of ₹3 lakhs was patently wrong, illegal and perverse.
Standing Counsel S. Ananthakrishnan for Railways appeared for the respondents in the case.
The Court noted that the parties had never made a genuine pre-estimate of the amount to be paid n the event of any damage or loss likely to be caused by the breach or that there is any clause relating to liquidated damages in the contract.
Further, the compensation payable under Sections 73, 74 and 75 is only for loss or damage caused by the breach and not account for the mere act of breach. If in any case the breach has not resulted in or caused any loss or damage to a party, he cannot claim compensation, it was noted.
The Court observed that when no loss or damage has been caused to the respondent, neither the provisions of Sections 73, 74 or 75 could have been invoked nor are they applicable in this case.
As such, the Court held that the Tribunal was wrong in rejecting the appellant's claim for release of the amount of security deposit. This finding was held to be in violation of Sections 73 to 75, and in contravention of the fundamental policy of Indian Law as contemplated in Section 34(2)(b)(ii).
Also Read: Breach Of Contract | Can't Forfeit Security Deposit Towards Risk Liability In Absence Of Loss/Damage: Kerala High Court
Case Title: M/s Devchand Construction v. Union of India |
Mumtaz Mohd. S/o Shri Gafoor Khan, aged about 59 years, r/o
village Musaliya District Pali(Raj.)
1. District Collector Pali, dist. Pali
4. Hira Lal, Khandpa, ward no. 17, Member Panchayat Samiti,
The matter comes up on an application (Inward No. 02/22)
for early hearing.
It is noted that the case is listed in the ‘Orders’ category as
an application (Inward No. 02/22) of some other writ petition has
wrongly been tagged with this file and the next date in the said
petition is 28.09.2022.
The office is directed to tag the said application appropriately
in the correct file.
With the consent of the learned counsel for the parties, the
matter is being heard and decided finally today itself.
The present writ petition has been filed against the notice
dated 09.09.2016 issued by respondent No. 2–Tehsildar, whereby,
the petitioner has been directed to shift his poultry farm.
(2 of 3) [CW-10623/2016]
Learned counsel for the petitioner submits that the petitioner
established a poultry farm in Khasra No. 566, Village Musaliya,
Tehsil Marwar Junction, District Pali. He further submits that he is
running the poultry farm after taking a “No Objection Certificate”
from the Gram Panchayat, Musaliya vide their resolution dated
20.09.1998 (Annex. 3). Learned counsel further submits that he
has complied with all the eligibility and requisite qualifications for
running the poultry farm, even then the respondent No.2-Tehsildar
issued a notice for shifting of the poultry farm without extending a
reasonable opportunity of hearing to the petitioner. He, therefore,
prays that the writ petition may kindly be allowed and the
impugned notice dated 09.09.2016 may be quashed and set aside.
Per contra, learned counsel for the respondents submits that
the petitioner is running a poultry farm in contravention of the
provisions of Water (Prevention and Control of Pollution) Act,
1974. Learned counsel further submits that an inspection was
conducted at the poultry farm of the petitioner and certain
deficiencies were pointed out but the said deficiencies were not
removed. He further submits that the notice issued by the
Tehsildar for shifting of the poultry farm from the existing place
was just and proper.
I have considered the submissions made at the Bar and gone
through the notice dated 09.09.2016 as well as other relevant
records of the case.
The petitioner is running the poultry farm in Village Musaliya
since 1998 and for the purpose a “No Objection Certificate” was
issued by the Gram Panchayat, Musaliya in 1998 itself. Although, it
is mentioned in the notice dated 09.09.2016 issued by the
respondent No. 2 that an inspection was conducted by the
(3 of 3) [CW-10623/2016]
Rajasthan Pollution Control Board and certain deficiencies were
pointed out. It is noted that although the heading of notice is
stated on Annex. 5 dated 09.09.2016 but a direction has been
issued to the petitioner to shift his poultry farm to some other
A bare perusal of the Annex. 5 dated 09.09.2016 shows that
the petitioner has not been extended any opportunity of hearing
before passing the notice impugned. This Court feels that since
the notice impugned 09.09.2016 having evil consequences, an
opportunity of hearing is required to be given to the petitioner.
In the facts and circumstances of the case, the present writ
petition is disposed of with a direction to the petitioner to appear
before respondent No. 2-Tehsildar within a period of ten days from
today and submit a detailed representation supporting his case.
The respondent No. 2 shall consider the same and decide the
representation of the petitioner after giving a reasonable
opportunity of hearing to him. Needless to say that the respondent
No. 2 shall decide the representation by reasoned and speaking
The interim order granted by this Court on 17.09.2016 shall
continue till the respondent No. 2 decide the representation of the | The Rajasthan High Court recently asked the Tahsildar to hear the poultry farmer before he decides to ask him to shift his farm elsewhere.
The observation came from Justice Vinit Kumar Mathur:
"A bare perusal of the Annex. 5 dated 09.09.2016 shows that the petitioner has not been extended any opportunity of hearing before passing the notice impugned. This Court feels that since the notice impugned 09.09.2016 having evil consequences, an opportunity of hearing is required to be given to the petitioner."
In the present matter, the petitioner was an owner of a poultry farm who moved the court challenging the notice issued by Tehsildar for shifting of the poultry farm without extending a reasonable opportunity of hearing to the petitioner.
Petitioner argued that he has complied with all the eligibility and requisite qualifications and a 'No objection certificate' for running the poultry farm.
Respondent argued that the petitioner was running a poultry farm in contravention of the provisions of Water (Prevention and Control of Pollution) Act, 1974. He also submitted that an inspection was conducted at the poultry farm of the petitioner and certain deficiencies were pointed out but the said deficiencies were not removed. Therefore, he submitted that the notice issued by the Tehsildar for shifting the poultry farm from the existing place was just and proper.
The court said that the petitioner is running the poultry farm in Village Musaliya since 1998 and for this purpose a "No Objection Certificate" was issued by the Gram Panchayat, Musaliya in 1998 itself. Further, it recorded that although, it is mentioned in the notice dated 09.09.2016 issued by respondent No. 2 that an inspection was conducted by the Rajasthan Pollution Control Board and certain deficiencies were pointed out. It was noted that although the heading of notice is stated on Annex. 5 dated 09.09.2016 but a direction has been issued to the petitioner to shift his poultry farm to some other place.
In view of the above, the court disposed of the writ with direction to the petitioner to appear before respondent No. 2-Tehsildar within a period of ten days from today and submit a detailed representation supporting his case.
Respondent no 2 was directed to consider the same and decide the representation of the petitioner after giving a reasonable opportunity of hearing to him.
Case Title : Mumtaz Mohd. V District Collector Pali and ors |
1. The present petition is a criminal revision petition filed by the
Revisionist Petitioner, an Indian Army colonel, with a prayer to set aside the
order dated 30.5.2018 passed by Ld. Family Court Tis Hazari in MT No.
78/2018 wherein the Court passed an order under Section 125 Cr.P.C
directing the Petitioner to pay a monthly maintenance of Rs.33,500/- to the
Respondent herein.
2. Before delving into the merits of the case it would be important to
advert to the material facts of the case.
a) The marriage of the Petitioner was solemnized on 22.12.2002
according to Sikh rites and rituals in accordance with the Hindu
Marriage Act, 1955. Out of the wedlock, they have two Children-
Suhani Singh aged 10 years and Shabad Singh aged 7 years old.
b) The Revisionist Petitioner has been posted across the territory of
India as a result of his service in the Army. The Revisionist
Petitioner and the Respondent were peacefully married and
residing happily together until 2015 where the Petitioner alleges
that he found that the Respondent was in an adulterous
relationship with one of the petitioner’s senior in the army, who
was married and close with the family as well.
c) In July 2015, it is stated that the Petitioner found out that the
Respondent was in an amorous relationship with the
superior/family friend of the Petitioner. The Petitioner admittedly
checked the Respondent’s phone and discovered on her
WhatsApp, certain chats which were lascivious in nature, with
the Petitioners superior which was recorded by him to confront
the Respondent on her actions.
d) It is stated that on 8.8.2015, the Petitioner hosted a dinner party
where he had invited both his and Respondent’s respective
parents and had invited his army superior/ paramour of the
Respondent and his spouse. The Petitioner all the time at the
party was wearing a body audio/tape recorder after the dinner
party was over he started by giving a speech and where in the
middle he spoke about the affair of Respondent No.2 and a
family face-off ensued which lasted for 30 minutes.
e) The entire communication of that dinner party was recorded and
was transcribed and has been placed on record before this Court.
f) Admittedly, after the dinner party the Petitioner made his
intentions very clear of wanting to separate from the Respondent
and sever all marital ties with her. The Petitioner firmly stated
before the families that he would have the custody of the
children. It is stated that the Respondent tried to apologize
numerous times but the same was not accepted by the Petitioner
and all attempts of reconciliation made by Respondent had
failed.
g) The Respondent thereafter filed a slew of cases against the
Petitioner claiming different reliefs from him. Given below are
the cases that the Respondent has filed against the Petitioner.
i. Maintenance Petition under Section 125 Cr.P.C.(MT-78
of 2018) filed before the Family Court, Tis Hazari which
has cumulated in the present Revision Petition.
ii. Guardianship Petition (G.P. 45 of 2015) u/s 9 of the
Guardianship & Wards Act, 1890 filed before the PDJ,
iii. Guardianship Petition No. 5 of 2015 before the Family
Court in Bikaner, Rajasthan.
iv. Transfer Petition (Civil) 602 of 2016 before the Hon’ble
Supreme Court of India.
v. Domestic Violence case criminal complaint No.
vi. Civil Suit No. 9987 of 2016 before the District Judge, Tis
vii. HMA No. 97 of 2016 before the Family Court, Tis
h) It is stated that on 13.08.2015, the petitioner made a written
representation to Brigadier Ajay Vij. CDR 79 Mountain Brigade
against his superior who was allegedly in an amorous
relationship with the Respondent and appropriate proceedings
before the Armed Forces Tribunal had been initiated under
Section 45 of the Army Act 1950.
i) Simultaneous proceedings at different locations have been going
on between the parties.
j) In the petition for maintenance, the learned Family Court vide
order dated 10.04.2017 has granted Rs. 9000/- per month as ad
interim maintenance to the respondent herein which was directed
to be deposited in the bank account of the respondent herein on
7th day of each English Calendar month from the date of the
order. The Ld. Principal Judge, Tis Hazari on 30.05.2018 in the
proceedings initiated under Section 125 Cr.P.C has passed an
order directing the Revisionist Petitioner to pay a sum of Rs.
35,300/- per month as interim maintenance to the respondent
herein w.e.f. 01.01.2017 till the final disposal of the case and
retrospective maintenance of the amount of Rs. 9,000/- p.m. as
directed by the learned Family Court vide order dated
10.04.2017, from the date of filing of the Maintenance Petition
(2015) till December 2016.
k) The petitioner has approached this Court challenging the order of
maintenance.
l) Material on record indicates that the said chats have been
deemed adulterous in the proceedings initiated by the petitioner
herein under the Guardianship & Wards Court, Tis Hazari Court
while granting custody of the children to the Petitioner.
m) In the Guardianship Petition filed by the respondent herein, hte
learned Principal District Judge, Tis Hazari Courts, vide order
dated 22.8.2020 has stated reasons for not giving custody of the
children to the Respondent herein.
n) During the pendency of the present petition before this Court, the
parties herein were referred to Delhi High Court Mediation
Committee vide order dated 15.10.2018. The Mediation failed.
3. Heard both parties. The Petitioner and Respondent both appeared and
argued in person before this Court.
4. The Revisionist Petitioner submitted that there are glaring
inconsistencies that were in the order as a result of suppression of facts made
by the respondent herein. He contends that the respondent is disqualified
from being given maintenance as she was in an adulterous relationship and
was living in adultery with an army senior of the Petitioner. He submits that
the Respondent and her paramour were having an affair behind his back and
the paramour was known to the couple as a family friend from the time they
had gotten married in 2002. He submits on this ground itself the sub-section
(4) of Section 125 CrPC is attracted which states that a person living in
adultery would not be eligible for claiming maintenance from her separated
spouse.
5. The petitioner then submitted that the Respondent is disqualified from
receiving maintenance on the ground that she was employed as a teacher
previously and was making a living. It is submitted that the respondent has
an earning capacity and can maintain herself without the financial support of
the Petitioner as sanctioned by law. He contended that the Maintenance
Petition has been wrongly decided by the family court ignoring the Army
Order 02/2001 which governs the Petitioner’s case and Clause 4 of that
order lays down the Procedure for Processing Maintenance Cases. The
submission of the Petitioner is that since the Respondent’s maintenance
claim is to be decided in accordance with the Army Order, the same would
be decided by the Army officials of the Armed Tribunal and the jurisdiction
exercised by the Family Court is wrong and improper. Therefore, the entire
proceedings before the family Court is null & void, and the claim of
maintenance by the Respondent should be decided by the appropriate forum
in the Army.
6. The Petitioner lastly submitted that the respondent has submitted an
overly inflated Income Affidavit before the Family Court. He states that she
has suppressed the fact that she is capable of earning, that she was
previously teaching in three different schools and that she has been living at
the residence of her parents, therefore she doesn’t need an accommodation
or rental. The Petitioner relies on the order dated 22.8.2020 passed in GP- 75
of 2015 by the Ld. PDJ, Tis Hazari and observations therein to show that the
conduct of the Respondent was adulterous and unbecoming of having the
custody of the children permanently.
7. The Petitioner in support of his contentions and submissions has
placed reliance on many judgments on the proposition that living in adultery
bars a woman from claiming maintenance from the husband. He has placed
i. Bhushan Kumar Meen v. Mansi Meen, (2010) 15 SCC 372
ii. Reema Salkan v. Sumer Salkan, (2019) 12 SCC 303
iii. Rupali Gupta v. Rajat Gupta, 234(2016) DLT 693
iv. Damanreet Kaur v. Indermeet Juneja, (2012) SCC Online Del
8. On the other hand, the Respondent would submit that the Petitioner
had deserted the Respondent without giving her a reason. She submits that
she was in a loveless marriage for resorted to initiate divorce, custody and
maintenance proceedings against him. She submitted that there is no
infirmity in the impugned order granting maintenance of Rs.35,300/- and the
revision petition is without any merits. She submitted that the Petitioner is
under an obligation imposed by CrPC to maintain her and he cannot escape
his responsibility even though their marriage has fallen apart. She submits
that the Petitioner has been an uncaring spouse who neglected her and the
children throughout the marriage and when the she decided to live separately
the Petitioner foisted the wild charge of adultery to avoid paying
maintenance to her. She submitted that she was working as a teacher in a
school in New Delhi only for a short period and the salary she was receiving
not enough to sustain herself and live as per the same standard as she lived
during her marriage. She submitted that the Petitioner has filed a false and
incorrect ITR and fake claims of paying EMI on a housing loan without
documentary evidence to substantiate the assertions. She submits that the
Petitioner and his family are more than financially able to give the
maintenance as they receive sufficient rental income from properties in New
Delhi, Noida and Mohali.
9. The Respondent submitted that the Petitioner has misled the Family
Court, Tis Hazari submitting false, fake, fabricated and trumped up chats,
screenshots as evidence in the Guardianship Petition and got the custody of
the children through fraud. She submitted that one single incident adultery
would not disqualify a person from getting maintenance under Section 125
CrPC. She, lastly placed reliance on a number of case laws to state that the
Petitioner is bound to pay maintenance to the respondent under Section 125
CrPC. She relied on the following judgments-
i. Ravendra Singh v. Kapsi Bai, (2 1991 DMC 422)
ii. Chandrakant Gangaram Gawade v. Sulochana Chandrakant
iii. Chatubhuj v. Sitabai, (Criminal SLP No. 4379 of 2006)
10. A perusal of the impugned order shows that the Trial Court while
fixing the interim maintenance has directed the petitioner herein to pay a
sum of Rs.35,300/- per month to the respondent herein w.e.f. 01.01.2017
and Rs.9,000/- per month w.e.f. date of filing of the petition till December,
2016. The order of the learned Trial Court giving the basis of the calculation
“For the purpose of calculation, it would be fair to
club the individual income and allot shares to all the
concerned parties. There is no other dependent of the
petitioner except his two children and the respondent
in question. Accordingly, allotting two units each to
adult member, one unit each to the minor children and
one extra unit to the petitioner who is maintaining a
separate household. The petitioner would be entitled
for 2+1+1+1= 5 units while respondent would be
entitled to two units.
Petitioner salary after statutory deductions is equal to
Rs.138310/-per month and respondent's salary is equal
to Rs. 6,000/- i.e. joint family income is equal to
Rs.144310/- . According, the respondent share would
=35220.5(rounded to Rs 35300/-).
Accordingly, the application U/s 125 (1) Cr.P.C. is
allowed and petitioner is directed to pay an amount of
Rs 35300/- per month to the respondent w.e.f.
01.01.2017 till the disposal of the case and
maintenance @ Rs, 9,000/- per month w.e.f. date of
filing of the petition till December, 2016.”
11. The material on record discloses that the children are with the
petitioner herein from 2015 and, therefore, the respondent is not entitled to
two shares. The respondent is, therefore, entitled to only one share which
comes to Rs.20,615.7/- less Rs.6,000/- which is the salary of the respondent
herein per month. Therefore, the learned Trial Court ought to have granted
only Rs.14,615/- per month as interim maintenance to the respondent herein.
12. The contention of the petitioner that he is covered by the Army Order
02/2001 and therefore the order passed by the learned Trial Court, fixing
maintenance is contrary to the Army Order 02/2001 does not hold water.
13. The purpose of Section 125 Cr.P.C has been laid down by the
Supreme Court in several judgments. The object of Section 125 Cr.P.C is to
prevent vagrancy and destitution of a deserted wife by providing her for the
food, clothing and shelter by a speedy remedy. The object of Section 125
Cr.P.C is to bring down the agony and financial suffering of a women who
left her matrimonial home so that some arrangements could be made to
enable her to sustain herself and her child (refer: Chaturbhuj v. Sita Bai,
(2008) 2 SCC 316, and Bhuwan Mohan Singh v. Meena, (2015) 6 SCC
14. The provisions of Section 125 Cr.P.C are in addition to other
provisions which provide for maintenance. However, the amount given
under Section 125 Cr.P.C is always taken into account before fixing
maintenance in other proceedings like the proceedings under the Protection
of Women from Domestic Violence Act, 2005, proceedings under Section
24 of the Hindu Marriage Act etc. It cannot be said that the Army Order
would over-ride the provisions of Section 125 Cr.P.C and that the Army
personnel are covered only by the Army Order and that Section 125 Cr.P.C
would not apply to Army Personnel.
15. The fact that the respondent is capable of earning is also no ground to
deny interim maintenance to the respondent herein. Many a times wives
sacrifice their career only for the family.
16. The petitioner has also raised the contention that since the respondent
is living in adultery she is not entitled to any maintenance under Section
125(4) Cr.P.C. The respondent has raised a very interesting argument stating
that even if the case of the petitioner is accepted then also one incident of
adultery cannot lead to a conclusion that the respondent is living in adultery.
17. The relevant portion of the judgment dated 22.08.2020, awarding
custody of children to the petitioner herein, reads as under:
“15.18 Another very important aspect in
deciding custody matters is the preference of the minor
children. The undersigned had interacted with both the
minor children namely SSU, aged about 12 years, and
SSH, aged about 8 1/2 years, on 11.08.2020 in
chamber. Both the children are quiet clear in their
thinking and appear to be old enough to make an
intelligent preference. The interaction was recorded in
a memorandum of the substance of interaction. Both
the minor children are aware of the facts and
circumstances in which they are placed. 1 hey are able
to understand and comprehend the matter and think of
their own interest and welfare. Both the minor children
have stated that presently they are living with their
father, paternal grandfather and paternal
grandmother. They want to live permanently with their
father as their father loves them more and takes care of
them. They further stated that they are friendly with
their father. They share everything with their father,
grandfather and grandmother. They do not share
everything with their mother. They further stated that
except two to three days in a week their mother talk to
them daily on telephone. They also stated that they like
cantonment area and want to stay in cantonment area
only. They also stated that they have not faced any
problem in their schooling etc. while shifting, on
transfer of their father, from one station to another.
They also stated that they do not want to stay with their
mother. However, their mother can meet them on
weekends and during vacations. They can also stay
overnight with their mother during vacations, but only
for two to three days. As per Section 17 of the Act, if a
minor child is old enough to form an intelligent
preference, the court may consider that preference. It
is well settled that in such case, the court has to
consider the said preference.
15.19 It is also pertinent to note that as per the
respondent, the minor children are doing well in their
education and co-curriculum activities while staying
with him. He has produced copy of certificate/report
card of Master SSH, RW1/13 (colly.). The same is not
disputed. He has also produced printouts of 30
photographs of him, his children, his sister's children
and parents, RW1/23 (colly.). There appears to be no
doubt that the minor children are now well settled with
the respondent. They are progressing well while living
with the respondent. There is nothing on record to
indicate that the interests and welfare of the minor
children were in any manner affected during their stay
with the respondent during the last about five years.
15.20 In view of the aforesaid discussion and
from the matters before this court, it is clear that the
petitioner has been in a secretive and amorous extra-
marital relation with CGA. The same was the cause of
separation of the petitioner and the respondent. Such
conduct cannot be conducive to the interest and
welfare of the minor children. As earlier observed, the
petitioner has also not been a truthful witness. It is well
settled that moral and ethical aspects are equally, if
not more, important than other factors for the welfare
of the minor children. Further, presently, the petitioner
is not having any independent income /financial
stability. Admittedly, the petitioner has also earlier
twice attempted suicide. On the other hand, it appears
that the respondent would be able to provide a
financially stable life to the minor children. There is
nothing on record to indicate that he has not been or
cannot be a good father/parent. Further, and very
importantly, the minor children have categorically
shown their preference to live with the
respondent/father and in a cantonment area. The
minor children are well settled with the respondent. At
this juncture, it would not be in their interest to
unsettle them from their present environment. The issue
of custody of children has to, be decided on the basis of
the present circumstances.”
18. A perusal of the abovementioned paras does not conclusively prove
that the respondent has committed adultery or is living in adultery.
19. The issue as to whether the respondent is living in adultery or not can
be decided only after evidence is lead by both the parties.
20. At the time of fixing interim maintenance this Court is not inclined to
go into this question at this juncture.
21. Needless to state that if it is conclusively proved that the respondent
was living in adultery and was not entitled to maintenance at all, the learned
Trial Court can pass appropriate order for return of the maintenance amount
if it deems it fit and keeping in mind the object of Section 125 Cr.P.C is to
prevent vagrancy and destitution of a deserted wife.
22. The revision petition is allowed in part. The petitioner is directed to
pay a sum of Rs. 14,615/- per month as interim maintenance to the
respondent herein w.e.f 01.01.2017. This Court is not inclined to disturb the
portion of the impugned order which has directed the petitioner herein to
pay a sum of Rs.9,000/- per month to the respondent herein w.e.f. date of
filing of the petition till December, 2016.
23. Accordingly, the revision petition is allowed in part. All the pending
applications are disposed of. | The Delhi High Court has observed that the fact that a wife is capable of earning is no ground to deny interim maintenance to her opining that many time wives sacrifice their career only for the family.Justice Subramonium Prasad also observed that the object of sec. 125 Cr.P.C is to bring down the agony and financial suffering of a women who leave her matrimonial home so that some...
The Delhi High Court has observed that the fact that a wife is capable of earning is no ground to deny interim maintenance to her opining that many time wives sacrifice their career only for the family.
Justice Subramonium Prasad also observed that the object of sec. 125 Cr.P.C is to bring down the agony and financial suffering of a women who leave her matrimonial home so that some arrangements could be made to enable her to sustain herself and her child.
The observations came while the Court was dealing with criminal revision petition filed by a husband, an Indian Army Colonel, challenging a Family Court order wherein he was directed to pay a monthly maintenance of Rs.33,500 to his wife.
It was thus the case of the petitioner husband that there were glaring inconsistencies in the impugned order as a result of suppression of facts made by the wife. It was argued that the wife is to be disqualified from being given maintenance as she was in an adulterous relationship and was living in adultery with one of his army seniors.
It was also submitted that the wife was has to be disqualified from receiving maintenance on the ground that she was employed as a teacher previously and was making a living.
On the other hand, the respondent wife submitted that it was loveless marriage which resorted her to initiate divorce, custody and maintenance proceedings against the husband. It was also submitted that there was no infirmity in the impugned and that the revision petition was without any merits.
"The purpose of Section 125 Cr.P.C has been laid down by the Supreme Court in several judgments. The object of Section 125 Cr.P.C is to prevent vagrancy and destitution of a deserted wife by providing her for the food, clothing and shelter by a speedy remedy," the Court observed.
It also said that the amount given under sec. 125 of CrPC is taken into consideration before fixing maintenance in other proceedings like the proceedings under the Protection of Women from Domestic Violence Act, 2005, under sec. 24 of the Hindu Marriage Act etc.
"It cannot be said that the Army Order would over-ride the provisions of Section 125 Cr.P.C and that the Army personnel are covered only by the Army Order and that Section 125 Cr.P.C would not apply to Army Personnel," the Court said at the outset.
"The fact that the respondent is capable of earning is also no ground to deny interim maintenance to the respondent herein. Many a times wives sacrifice their career only for the family."
The Court was of the view that the allegation of the wife committing adultery or was living in adultery could not conclusively be proved and that the said issue can be decided only after evidence is lead by both the parties.
"Needless to state that if it is conclusively proved that the respondent was living in adultery and was not entitled to maintenance at all, the learned Trial Court can pass appropriate order for return of the maintenance amount if it deems it fit and keeping in mind the object of Section 125 Cr.P.C is to prevent vagrancy and destitution of a deserted wife," the Court added.
Accordingly, partly allowing the petition, the Court directed the husband to pay Rs. 14,615 per month as interim maintenance to the wife w.e.f 01.01.2017.
However, the Court said that it was not inclined to disturb the portion of the impugned order which had directed the husband to pay a sum of Rs.9,000 per month to the wife herein w.e.f. date of filing of the petition till December, 2016.
Title: COL RAMNESH PAL SINGH v. SUGANDHI AGGARWAL |
tition No.369 of 1989.
(Under Article 32 of the Constitution of India).
K. Madhava Reddy, B. Rajeswar Mehta Dave and Ms. Neelam for the Petitioners.
M.K. Ramamurthi, M.A. Krishnamurthy, Mrs. C. Ramamurthy, GVS Surayanarayana Raju in person TVSN Chari, Jagan Rao, DRK.
Reddy, GVS Surayanarayana for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
Promotee Engineers of the Roads & Buildings Wing of the Andhra Pradesh Engineering Service are the petitioners in this application under article 32 of the Constitution and challenge is to the Government circular of 12.8.1988 (Annexure A) fixing the guideline for the drawing up of the seniority list pursuant to a direction issued by this Court in a batch of writ petitions, decision whereof is reported in Siva Reddy & Ors.
vs State of Andhra Pradesh & Ors.
While petitioners are promotees, the respondents are direct recruits.
Petitioners allege that they had put in continuous service of 6 7 years by 1982 and their services having been regularised in the post of Deputy Executive Engineer in the year 1974 75, direct recruits appointed in the year 1982 cannot under any law be placed above them.
As noticed in Siva Reddy 's case (supra), substantive vacancies in the category of Assistant Engineers had to be filled up from two sources 37 1/2% by direct recruitment and the remaining 62 1/2% by transfer of Supervisors and Draughtsmen and by promotion of Junior Engineers.
Direct recruits had complained that notwithstanding this prescrip tion, there had been no recruitment of Assistant Engineers and the promotees from the other two modes had come into the cadre far in excess of the limit provided by the Rules.
The Chief Engineer by his order dated June 8, 1984 regularised the temporary service of promotees of the years 1972 73, 1973 74 and 1974 75 in the cadre of 142 Assistant Engineers (later designated as Deputy Executive Engineers).
They had, therefore, asked the quashing of the regularisation and drawing up of a seniority list on the basis of the ratio fixed under r. 3(1) of the Special Rules.
This Court in paragraph 5 of the judgment stated: "Reopening of the question of inter se senior ity on the basis of non enforcement of the rules from the very beginning may create hardship and that would be difficult to miti gate but we see no justification as to why the benefit of the scheme under the rules should not be made available to direct recruits at least from 1982.
When the State Government by rules duly framed prescribed the method of re cruitment and put the scheme into operation it had the obligation to comply with it.
The explanation offered by the State Government for non compliance of the 'requirements of the rules does not at all impress us.
We there fore, direct that as on December 31, 1982, the State Government must ascertain the exact substantive vacancies in the category of Assistant Engineers in the service.
On the basis that 37 1/2 per cent of such vacancies were to be filled up by direct recruitment, the position should be worked out.
Promotees should be confined to 62 1/2 per cent of the substantive vacancies and in regard to 37 1/2 per cent of the vacancies the shortfall should be filled up by direct recruitment.
General Rules shall not be applied to the posts within the limits of 37 1/2 per cent of the substan tive vacancies and even if promotees are placed in those posts, no seniority shall be counted.
The State Government shall take steps to make recruitment of the shortfall in the direct recruitment vacancies within the limit of 37 1/2 per cent of the total substantive vacancies up to December 31, 1987 within four months from today by following the normal method of recruitment for direct recruits.
The seniority list in the cadre of Assistant Engineers shall be redrawn up, as directed by the Tribunal by the end of September 1988, keeping the directions referred to above in view . " With a view to implementing this direction the State Govern ment came out with the impugned order dated 12.8.1988 marked Annexure 'A '.
In Siva Reddy 's case this Court found that promotees had exceeded the quota and even got regularised in respect of the posts in 143 excess of the limit.
Taking into consideration the fact that regularisation had been done after the promotees had put in some years of service and disturbing regularisation would considerably affect the officers concerned, regularisation was not interfered with.
This Court 's intention obviously was not to take away the benefit of regularisation in re spect of the officers belonging to the promotee group in excess of their quota but the Court did not intend to allow such regularised officers in excess of the quota to also have the benefit of such service for purposes of seniority.
A reading of the judgment in Siva Reddy 's case clearly indicates that this Court intended what the Government have laid down by way of guideline.
We see no justification to interfere with the Government direction.
A draft seniority list on the basis of such direction has already been drawn up and has been circulated.
We are told that objections have been received and would be dealt with in usual course by the appropriate authorities.
This writ petition had been enter tained in view of the allegation that the Government direc tion was on a misconception of what was indicated in the judgment and in case there was any such mistake the same should be rectified at the earliest.
Now that we have found that the Government order is in accord with the Court direc tion, this writ petition must be dismissed and individual grievances, if any, against the draft seniority list would, we hope, be considered on the basis of objections filed by the competent authority.
There shall be no order as to costs.
N.P.V. Petition dismissed. | Pursuant to this Court 's direction in K. Siva Reddy & Ors.
vs State of Andhra Pradesh & Ors.
, ; , the State Government issued Circular dated 12.8.1988, fixing the guideline for drawing up of inter se seniority list of direct recruit and promotee Deputy Executive Engi neers in Andhra Pradesh Engineering Service.
This Circular was challenged by the petitioners.
Promotee Engineers, in a Writ Petition filed in this Court, contending that since they had put in continuous service of 6 to 7 years by 1982 and their services had been regularised in the post of Deputy Executive Engineer in the year 1974 75, direct re cruits appointed in the year 1982 could not, under any law, be placed above them.
Dismissing the writ petition, this Court, HELD: Promotees had exceeded the quota and even got regularised in respect of the posts in excess of the limit.
Taking into consideration the fact that regularisation had been done after the promotees had put in some years of service and disturbing regularisation would considerably affect the officers concerned, regularisation was not inter fered with.
This Court 's intention was not to take away the benefit of regularisation in respect of the officers belong ing to the promotee group in excess of their quota but the Court did not intend to allow such regularised officers in excess of the quota to also have the benefit of such service for purposes of seniority.
[142 H; 143A B] A reading of the judgment in Siva Reddy 's case clearly indicates that this Court intended what the Government have laid down by way of guideline.
Therefore, there is no justi fication to interfere with the Government direction. [143B] 141 K. Siva Reddy & Ors.
vs State of Andhra Pradesh & Ors.
, ; , referred to. |
As these transfer petitions are between the
husband and wife in connection with the disputes
arising out of their marriage, they have been disposed
of by this common order.
2. Tr.P(C) No.305/2019 is filed by the husband
against the wife, to transfer O.P.No.304/2019 filed by
the wife, from the Family Court, Thalasseri to the
Family Court, Ottappalam; Tr.P(C) No.468/2021 is
filed by the wife against the husband to transfer O.P.
(G&W) No.357/2019, filed by the husband, from the
Family Court, Ottappalam to the Family Court,
Thalasseri and Tr.(PC) No.431/2022 is filed by the
husband to transfer O.P.No.508/2022 filed by the wife
from the Family Court, Thalassery to the Family Court,
Ottappalam. The parties and the pleadings are, for the
sake of convenience, referred to as in Tr.P(C)
No.431/2022, which is treated as the leading case and
is the recent case.
3. The case of the petitioner-husband in brief in
Tr.P(C) No.431/2022 is that the respondent is his wife.
They were married on 16.04.2012. They have a
daughter named Evangelin Joseph, who is now 9 years
of age. The respondent has filed O.P.No.508/2022
against the petitioner, before the Family court,
Thalassery, for a decree of divorce. The petitioner has
filed O.P.No.357/2019 against the respondent, before
the Family Court, Ottappalam, for an order for the
permanent custody of their daughter. The respondent
has filed O.P.No.304/2017 against the petitioner,
before the Family Court, Thalassery, for an order for
the permanent custody of the child. Then, the
petitioner filed Tr.P(C) No.305/2019, to transfer
O.P.No.304/2019 from the Family Court, Thalassery to
the Family Court, Ottappalam. Later, the respondent
filed Tr.P(C) No.468/2021 to transfer O.P.No.357/2019
from the Family Court, Ottappalam to the Family
Court, Thalassery. During the pendency of the above
transfer petitions, the Family Court, Thalassery,
passed an interim order directing the interim custody
of the child to be given to the respondent. The
petitioner challenged the said order before this Court
in OP(FC) No.404/2019. The parties were referred to
mediation and they entered into Annexure B
agreement, whereby the interim custody of the child
was given to the petitioner. The respondent is
employed abroad. She visits India only on her annual
leave. The parties have agreed that custody of the
child be given to the respondent during the child's
school holidays. After entering into Annexure B
agreement, the respondent went abroad. She left
India in 2019 and returned only after three years. It is
learnt that the respondent would return to New
Zealand in August 2022. She is prosecuting all the
proceedings through her power of attorney holder.
Therefore, no inconvenience would be caused to the
respondent, if O.P.Nos.304/2019 and 508/2022 are
transferred from the Family Court, Thalassery to the
Nos.305/2019 and 431/2022 may be allowed.
4. The respondent-wife has filed Tr.P(C)
No.468/2021 and a counter affidavit in Tr.P(C)
No.431/2022, inter-alia, admitting that she is
employed in New Zealand. She has returned to India
on 07.06.2022 and filed O.P.No.508/2022 before the
Family Court, Thalassery. The parties were referred
for mediation and the respondent herself is
prosecuting the proceedings. The sole intention of the
petitioner is to keep away the daughter from the
respondent. It would be difficult for the respondent to
travel all the way from Kannur to Ottappalam, if the
proceedings are transferred. Therefore, Tr.P(C)
Nos.305/2019 and 431/2022 may be dismissed and
Tr.P(C) No.468/2021 may be allowed.
5. Heard; Sri. Dheeraj Rajan, the learned counsel
appearing for the petitioner-husband and
Sri.K.Mohanakannan, the learned counsel appearing
for the respondent -wife.
6. The point is which of the transfer petitions are
to be allowed.
7. Admittedly, the respondent-wife is employed in
New Zealand. She has filed O.P.No.508/2022 before
the Family Court, Thalassery and Tr.P(C) No.468/2021
before this Court through her power of attorney
holder. It is evident from Annexure B proceeding that
the custody of the 9 year old daughter of the couple is
given to the petitioner-husband. O.P.No.304/2019 and
OP(G&W) No.357/2019 are filed by the wife and
husband, respectively, for the custody of the child. The
child is a permanent resident of Palakkad. As O.P.
Nos.304/2019 and 357/2019 are filed under the
Guardian and Wards Act, 1890, necessarily the child
will have to be produced before the Court below, to
comply with the direction regarding the interim
custody orders agreed in Annexure B proceeding.
Therefore, I am of the view that it is the convenience
of the child that has to be given preference and
8. Moreover, since the respondent-wife is
employed in New Zealand and going by the law laid
down by this Court in Mini Antony vs. Savio Aruja
[2022 (3) KHC 442], the inconvenience of the power of
attorney holder, cannot be taken as a ground to order
transfer of a case. Hence, I am inclined to exercise the
discretionary powers of this Court under Section 24 of
the Code of Civil Procedure and allow Tr.P(C)
Nos.305/2019 and 431/2022. Furthermore, if all the
proceedings are tried by the same Court, it would save
precious judicial time and avoid conflict of decisions.
Nonetheless, the respondent -wife would be at liberty
to move the Family Court, Ottapalam and seek for the
dispensation of her personal appearance and also
avail the video conferencing facility.
In the result, I pass the following orders:
(i) Tr.P(C) No.305/2019 is allowed by ordering
withdrawal of O.P.No.304/2019 from the Family
Court, Thalassery and transferring it to the
(ii) Tr.P(C) No.431/2022 is allowed by ordering
withdrawal of O.P.No.508/2022 from the Family
Court, Thalassery and ordering it to be
transferred to the Family Court, Ottappalam.
(iii) Tr.P(C) No.468/2021 is dismissed.
(iv) The parties would be at liberty to move the
Family Court, Ottappalam and seek for the
consolidation and joint trial of all the cases
between them.
(v) The respondent-wife would be at liberty to
move the Family Court, Ottappalam and seek
for dispensation of her personal appearance
and to avail the video conferencing facility.
(vi) The Registry shall forward a copy of this order
to the Family Court, Thalassery with
instructions to forthwith transmit the records
in O.P.No.304/2019 and 508/2022 to the Family
(vii) The Family Court, Ottappalam, shall
immediately on receipt of the records in the
above numbered cases, post the cases along
with OP(G&W) No.357/2019.
(viii) The interim custody arrangement agreed by
the parties in Annexure B agreement shall
continue to remain in force until it is modified
or varied. | This was all the more so if the wife was abroad and appearing through a power of attorney holder.The Kerala High Court has ruled that while transferring petitions filed for custody of children, the convenience of the child should be given preference particularly when the wife is abroad and appearing through a power of attorney. Observing so, Justice C.S Dias transferred all the pending cases between a couple to the court near the permanent residence of their...
The Kerala High Court has ruled that while transferring petitions filed for custody of children, the convenience of the child should be given preference particularly when the wife is abroad and appearing through a power of attorney.
Observing so, Justice C.S Dias transferred all the pending cases between a couple to the court near the permanent residence of their child.
"As O.P. Nos.304/2019 and 357/2019 are filed under the Guardian and Wards Act, 1890, necessarily the child will have to be produced before the Court below, to comply with the direction regarding the interim custody orders agreed in Annexure B proceeding. Therefore, I am of the view that it is the convenience of the child that has to be given preference and weightage."
The Court was adjudicating upon a batch of transfer petitions between a married couple relating to the disputes arising out of their marriage.
The couple married in 2012 and have a daughter aged 9 years old. The wife initially moved the Thalassery Family Court for divorce. In turn, the husband filed a plea before the Ottapalam Family Court seeking permanent custody of their child. Later on, the wife approached the Thalassery Family Court seeking the same relief.
Both the parties sought for their opponent's plea to be transferred to the Family Courts nearer to them.
Meanwhile, the Thalassery Family Court passed an interim order directing the interim custody of the child to be given to the wife. However, upon being challenged and pursuant to a mediation, interim custody was granted to the husband.
The wife is employed in New Zealand and she only visits India on her annual leave. Therefore, it was decided that custody of the child be given to her during the child's school holidays.
Advocate Dheeraj Rajan appeared for the husband while Advocate K. Mohanakannan appeared for the wife in the case.
It was noted that since she was abroad, the wife has been prosecuting all the proceedings through her power of attorney holder. Therefore, the Court found that no inconvenience would be caused to her if the petitions were transferred from Thalassery to Ottappalam.
It was also reminded that going by the decision in Mini Antony vs. Savio Aruja, the inconvenience of the power of attorney holder cannot be taken as a ground to transfer a case.
More importantly, the Judge found that the child was a permanent resident of Palakkad and that the convenience of the child has to be given preference in such cases.
Furthermore, the Court found that if all the proceedings were tried by the same Court, it would save precious judicial time and avoid conflict of decisions.
As such, all the petitions were transferred to the Family Court in Ottappalam. However, the wife was granted liberty to seek dispensation of her personal appearance and to avail the video conferencing facility.
The parties were also free to seek for the consolidation and joint trial of all the cases between them.
Case Title: Biny Kuriakose v. Joseph Sebastian & connected matters. |
According to the petitioner, she purchased a
'Winwin' lottery ticket bearing No.UBMYA-WNUND-
TDJAS(WB-649642). The date of draw was on
28.09.2015. Ext.P1 is the lottery ticket
alleged to be purchased by the petitioner. On
28.09.2015, the results of the lottery were
published. It is the case of the petitioner that
the ticket purchased by the petitioner was
declared to have won the 1st prize. As the claim
amount was more than one lakh, the petitioner
presented the claim before the 2nd respondent
directly. The claim was made within a period of
30 days as provided under the Paper Lotteries
(Regulation) Rules, 2005(hereinafter mentioned
as 'the Rules'). The original Ext.P1 was
submitted before the 2nd respondent on
15.10.2015. After submitting the original
lottery ticket to the 2nd respondent along with
all necessary documents in terms of Rule 9, the
2nd respondent intimated the petitioner that the
documents were incomplete. The 2nd respondent
directed the petitioner to submit a Stamped
receipt and attested copy of Ration
card/Election Identity card. Ext.P2 is the
communication. On receipt of Ext.P2, the
petitioner has submitted the residence
certificate and stamped receipt. Exts.P4 and
P4(a) are the residence certificate and stamped
receipt. Though, the required documents were
received by the 2nd respondent as early as on
November 2015, the petitioner submitted that the
2nd respondent has not disbursed the prize money
Thousand only) after deducting the income tax
and agents prize from the 1st prize amount of
Rs.65,00,000/-(Rupees Sixty Five Lakh only). In
such circumstances, the petitioner approached
this Hon'ble Court by filing W.P.
(C)No.15708/2019. Ext.P5 is the counter filed
by the 2nd respondent in the above writ petition.
Thereafter this Court disposed the above writ
petition as per Ext.P7 judgment directing the 1 st
respondent to consider the matter and pass
appropriate orders. Accordingly, the matter was
considered by the 1st respondent. The petitioner
submitted Ext.P10 written submission also before
the 1st respondent. Thereafter, the 1st
respondent passed Ext.P11 order rejecting the
claim of the petitioner to get the prize amount
of Ext.P1 lottery ticket. Aggrieved by Ext.P11,
this writ petition is filed.
2. Heard the learned counsel for the
petitioner and the learned Special Government
Pleader to the Advocate General,
3. The learned counsel for the petitioner
reiterated his contentions in the writ petition.
The learned counsel submitted that Ext.P11 order
is unsustainable for the simple reason that
there is no law allowing the Government to pass
such an order. The learned counsel submitted
that the petitioner purchased the lottery from
an agent at Palakkad. Simply because the
petitioner is the wife of the owner of a lottery
agency named 'Manjoo Lottery Agency', against
whom there is some allegations, the prize amount
can not be denied to the petitioner.
4. The learned Special Government Pleader
submitted that the petitioner is a partner of
Manjoo Lottery Agency, of course the same is
denied by the learned counsel for the
petitioner. The contention of the learned
Special Government Pleader is that the
petitioner is the wife of P.Muraleedharan,
Murali Nivas Kadambur P.O., Kannur who was a
lottery agent of lottery Department having
agency No.C3387 and also the Managing Partner of
Manjoo Lottery Agency. According to the learned
Government Pleader, the Agency in the ownership
of the above person was suspended by the
department for involving in unlawful practice in
lottery business. For the said reason, the
Director of State Lotteries, 2nd respondent had
declined the claim in respect of the petitioner.
The learned Government Pleader also relied on
Clause 3 of Ext.P6 circular.
5. After hearing both sides and perusing
the documents, I am not in a position to accept
the finding in Ext.P11. According to the
respondents, the petitioner is the wife of
Sri.P. Muraleedharan, who is the Managing
Partner of Manjoo Lottery Agency. But that is
not a reason to deny the prize money of lottery
which according to the petitioner purchased by
her from another agent in Palakkad District. I
specifically asked the learned Government
Pleader to point out a law which authorise the
Government to pass Ext.P11 order. The learned
Government Pleader takes me through Rule 9(8) of
2005 and fairly conceded that there is no other
provision. It will be better to extract the
Rule 9(8)of the Kerala Paper Lotteries
“(8)Prize money shall be paid after
ascertaining the genuineness of the Prize ticket.
However, payment of prizes above Rs. 100 shall be
made after matching it with the concerned
counterfoil kept in the office.”
6. From a reading of the above regulation,
it is clear that the duty of the authority is
only to find out whether the lottery ticket is
genuine. Admittedly, there is absolutely no
dispute about the genuineness of Ext.P1. In
such circumstances, the above Rule is not at all
applicable. In the counter affidavit filed on
behalf of the 1st respondent, it is also conceded
that there is no law which prohibit the
petitioner from purchasing the lottery tickets
either from the husband or from any other person
and presenting the same for cash in the event of
winning prize. The petitioner was in possession
of Ext.P1 lottery ticket and she produced the
same before the authority concerned for getting
the prize money. Now based on certain surmises
and certain observations, the 1st respondent
rejected the claim of the petitioner. It will
be better to extract the relevant portion of
7. If the above finding is correct, even
criminal offence may attract. Admittedly the
petitioner produced Ext.P1 ticket before the 2nd
respondent on 15.10.2015. About 6 years elapsed
thereafter. Admittedly, no criminal case is
registered against the petitioner at the
instance of the respondents even now. If the
allegations mentioned in Ext.P11 are true, the
respondents ought to have registered atleast a
criminal case against the petitioner. No such
case is registered as on today. Moreover, there
is no law which authorise the Government to pass
an order like Ext.P11. Admittedly, the
petitioner was in possession of Ext.P1 lottery
ticket and says that, she purchased it from
another agent. There is nothing to disbelieve
the same, except the wild guess of the 1 st
respondent. She produced the same before the
authorities as per the Rules. In such
circumstances, the petitioner is entitled the
prize money. According to me, Ext.P11 will not
stand because it is passed without backing of
law. I don't want to make any further
observation. All other contentions of the 1st
respondent against the husband of the petitioner
are left open because he is not a party in this
proceedings. But when the petitioner produced a
lottery ticket in accordance to the Rules with a
claim that, it got the first prize, the
petitioner is entitled the prize amount, if
there is no evidence to doubt the genuineness of
the prize ticket.
Therefore, this writ petition is allowed in
i) Ext.P11 order is set aside.
ii) The 2nd respondent is directed to
disburse the prize amount which the petitioner
is entitled after statutory deductions, as
expeditiously as possible, at any rate, within
two months from the date of receipt of a copy of
this judgment. | The Kerala High Court has directed the State to disburse the first prize amount of Rs 40.95 lakh to a woman who won its 'Winwin' lottery draw. Justice PV Kunhikrishnan issued the order on the petition filed by P Shitha challenging the rejection of her claim by the lottery department, alleging it to be unsustainable for the simple reason that there was no law allowing the Government to pass...
The Kerala High Court has directed the State to disburse the first prize amount of Rs 40.95 lakh to a woman who won its 'Winwin' lottery draw.
Justice PV Kunhikrishnan issued the order on the petition filed by P Shitha challenging the rejection of her claim by the lottery department, alleging it to be unsustainable for the simple reason that there was no law allowing the Government to pass such an order.
The State had denied the prize amount to the winner citing that she was the wife of a suspended lottery agent involved in unlawful practices in the lottery business.
The petitioner submitted that she had purchased a lottery ticket from Palakkad.
When the results were published by the lottery department, the ticket purchased by the petitioner was declared the winner.
Thereafter, she had submitted the original lottery ticket before the Director of State Lotteries. The claim also was made within a period of 30 days as provided under the Paper Lotteries (Regulation) Rules, 2005.
However, the State refused to hand over the prize money to the petitioner citing the above reason.
Senior Advocate George Poothottam on behalf of the petitioner submitted that merely because she was the wife of the suspended agent, the department cannot deny her the prize amount.
Special Government Pleader C.U Unnikrishnan attempted to make a submission that the petitioner was a partner of the Lottery Agency where her husband was previously employed, but this was immediately denied by the Counsel for the petitioner.
The Court upon analysing the arguments observed:
"According to the respondents, the petitioner is the wife of Sri.P. Muraleedharan, who is the Managing Partner of Manjoo Lottery Agency. But that is not a reason to deny the prize money of lottery which according to the petitioner purchased by her from another agent in Palakkad District."
Thereafter, the Bench asked the State if there was a law that authorises the Government to do so.
The Government Pleader accordingly took the Bench through Rule 9(8) of the Kerala Paper Lotteries (Regulation) Rules, and fairly conceded that there was no other provision.
"There is no law that prohibits the petitioner from purchasing the lottery tickets either from her husband or from any other person and claiming the prize amount in the event of winning a prize."
The said provision sets out that the prize money shall be paid after ascertaining the genuineness of the Prize ticket.
Therefore, it was established that the duty of the authority was only to find out whether the lottery ticket was genuine.
It was found that there was absolutely no dispute about the genuineness of the ticket produced by the petitioner.
No case was registered against the petitioner at the instance of the lottery department either.
Therefore, setting aside the impugned order denying the prize money to the petitioner, the Court observed:
"When the petitioner produced a lottery ticket in accordance with the rules claiming the first prize, she is entitled to the prize amount, if there is no evidence to doubt the genuineness of the prize ticket."
The Bench directed the Director of State Lotteries to disburse the amount after statutory deductions within two months.
Case Title: Shitha P. v. State of Kerala |
Mr.Amrut Joshi i/b Jerome Merchant & Partners for the Petitioners.
Ms.K.N. Solunke, AGP for the State – Respondent Nos.1 to 3.
Mr.G.S. Godbole with Mr.Devashish Godbole for the Respondent
Mr.Nitin V. Gangal for the Respondent Nos.21, 23, 24 and 26 to 29.
1. By this Petition filed under Article 226 of the Constitution
of India, the Petitioners have prayed for a writ of certiorari for
quashing and setting aside the proceedings under Section 23-A of the
The Right to Fair Compensation in Land Acquisition, Rehabilitation
and Resettlement Act, 2013 (for short the said “Fair Compensation
Act, 2013”) and in particular the Consent Agreements dated 9 th
March, 2022 executed by the Respondent Nos.4 to 27.
2. The Petitioners also seek a writ of mandamus against the
Respondent Nos.4 to 29 to return the amount received by them from
the Respondent No.1 and deposit to the credit of the Special Civil Suit
No.41 of 2010 pending before the Court of Civil Judge, Senior Judge,
Palghar, subject to adjudication and final outcome of the aforesaid
3. The Petitioners have also prayed for a writ of mandamus
against the Respondent Nos.1 and 2 to recover the amount received
from the Respondent Nos.4 to 29 as arrears of land revenue by
initiating appropriate proceedings in accordance with law and to
credit the same to Special Civil Suit No.41 of 2010, in the event of the
Respondent Nos.4 to 32 fail and neglect to credit such amount to
Special Civil Suit No.41 of 2010. Some of the relevant facts for the
purpose of deciding this petition are as under :
4. The Petitioner Nos.1 and 2 are the husband and wife
respectively. The Petitioner No.3 is the son of the Petitioner Nos.1
and 2. The Petitioner Nos.4 and 5 are the daughters of the Petitioner
Nos.1 and 2. The Petitioners claim to be “persons interested” under
the provisions of the said Fair Compensation Act, 2013 in respect of
the lands bearing Survey / Hissa Nos.183/1/A and 184/2/A at Village
5. It is the case of the Petitioners that the Respondent
Nos.4 to 32 are individuals, who along with the Respondent No.1,
have illegally submitted the writ lands to acquisition under Section 23-
A of the Fair Compensation Act, 2013 behind the back of the
6. Some time in the year 2010, the Petitioners filed Special
Civil Suit No.41 of 2010 against the Respondent Nos.4 to 29 under
Order 39, Rule 1 and 2 of the Code of Civil Procedure before the
Civil Judge,Senior Division Palghar for partition, separate possession,
cancellation of certain sale deeds and for permanent injunction
regarding the property situated in Gujarat, Gandhinagar and Dahanu.
The Petitioners also registered the lis pendense covering all the said
properties and got it registered with the Sub-Registrar, Talasari.
7. On 17th January, 2013, the Civil Court passed an order
restraining the Respondent Nos.4 to 29 from creating third party
interest or exchanging or conveying or leasing out or mortgaging the
lands forming part of Schedule “A”, “B” and ”C” of the Plaint which
included the writ lands specifically. The Civil Court also restrained the
other Respondents in the said suit from carrying out construction in
respect of some of the lands which were the subject matter of the
aforesaid suit.
8. On 6th February, 2014, father of the Petitioner No.1
expired. It is the case of the Petitioners that some time in the month
of March, 2022, they learnt from certain sources that the lands
bearing Survey / Hissa Nos.183/1/A and 184/2/A at Village Varvada,
Taluka Talasari, District Palghar, Maharashtra came to be acquired for
the purpose of a Bullet Train Project being undertaken by National
High Speed Rail Corporation Limited. The Petitioner No.1 obtained
the information by visiting the office of the Competent Authority on 21st
March, 2022 regarding acquisition of the writ lands.
9. On 22nd March, 2022, this Court in an Appeal From Order
No.444 of 2013, which was filed by some of the Respondents,
confirmed the interim order passed by the Civil Court.
10. It is the case of the Petitioners that the Petitioners
obtained certain documents by applying under the provisions of the
Right to Information Act in respect of the acquisition proceedings
pertaining to the writ lands and and states that the Respondent Nos.4
to 29 had executed the consent agreements, affidavits and other
documents, including Indemnity Bond and possession receipts on
various dates i.e. 10th March, 2022, 21st March, 2022 and 25th March,
2022 before the Competent Authority. On 25th March, 2022, the
compensation amounts in respect of the said lands were disbursed to
the Respondent Nos.4 to 29 immediately. The Petitioners filed this
Petition on 17th October, 2022.
11. Mr.Amrut Joshi, learned counsel for the Petitioners
submitted that disbursement of the compensation made to the
Respondent Nos.4 to 29 was in pursuance of the consent agreements
executed by them before the Competent Authority. He submitted that
those consent agreements would also clearly reflect along with
Respondent Nos. 4 to 29, the Petitioners are also the “interested
persons”. The consent of the Petitioners was however not obtained.
No notice under Section 21 of the Fair Compensation Act, 2013 was
issued/served upon the Petitioners. The entire disbursement of
compensation by the Competent Authority in favour of the
Respondent Nos.4 to 29 is thus vitiated under Section 23-A of the Fair
12. It is submitted by the learned Counsel for the Petitioners
that though the Collector was empowered to make an award without
making any further enquiry, such award could be made under the said
provisions only if the Collector was satisfied that all the “persons
interested” in the lands, who appeared before him, had agreed in
writing on the matters to be included in the award of the Collector in
the form prescribed by Rules made by the State Government. He
submitted that since the Petitioners being “persons interested” in the
writ lands, had not been issued any notice nor had appeared before
the Competent Authority, the Competent Authority could not have
made an award under the provisions of Section 23-A of the Fair
Compensation Act, 2013. He submitted that the purported award thus
made by the Collector, is no award at all in the absence of the
agreements from all “the interested persons”.
13. It is submitted by the learned Counsel for the Petitioners
that the statements made by the Respondent Nos.4 to 29 before the
Competent Authority, were totally false to their knowledge. The
Respondent Nos.4 to 29 had made a false statement that there was
no order of the Civil Court in force in respect of the lands in question.
The disbursement made by the Competent Authority in favour of the
Respondent Nos.4 to 29 is thus in complete violation of the order
dated 17th January, 2013 passed by the Civil Court.
14. Learned counsel for the Petitioners placed reliance on
the Indemnity Bonds submitted by the Respondent Nos.4 to 29
stating that if any statement made by them is found to be false, they
shall be liable for prosecution under Sections 193 (2), 198, 199 and
200 of the Indian Penal Code, 1860. He submitted that the
Respondent Nos.4 to 29 have illegally obtained compensation behind
the back of the Petitioners and abused the process of law.
15. It is submitted by the learned counsel for the Petitioners
that the Competent Authority could not have made an award under
Section 23-A of the Fair Compensation Act, 2013 without issuing the
notice to the Petitioners and in absence of the Petitioners being
“persons interested”. He submitted that when the statute provides for
a thing to be done in a particular manner, then, it has to be done in
that manner and in no other manner. In support of this submission, he
placed reliance on the judgment of the Hon’ble Supreme Court in
case of Nazir Ahmed vs. King Emperor and Nareshbhai
Bhagubhai & Ors. vs. Union of India & Ors. (2019) 15 SCC 1.
16. It is submitted that the said provisions i.e. Section 23-A
of the Fair Compensation Act, 2013 being an expropriatory legislation,
which compulsorily deprives a person of his right to property without
his consent, must be construed strictly. In support of this submission,
learned counsel placed reliance on the judgment of the Hon’ble
Supreme Court in case of Nareshbhai Bhagubhai & Ors. (supra).
17. It is submitted by the learned counsel that in the present
case, there is no other alternative efficacious remedy. He submitted
that in any event the case of the Petitioners falls under the exceptions
to the doctrine of statutory exhaustion of remedies i.e. (i) order /
proceedings are wholly without jurisdiction and (ii) principles of natural
justice have been breached in as much as no notice was given to the
Petitioners. In support of this submission, he placed reliance on the
judgment of the Supreme Court in case of Whirlpool Corporation
vs. Registrar of Trademarks, Mumbai, (1998) 8 SCC 1 and Radha
Krishna Industries vs. State of Himachal Pradesh, (2021) 6 SCC
18. It is submitted by the learned counsel for the Petitioners
that in this case there are no disputed questions of facts as sought to
be contended by the Respondent No.1 in its affidavit. He submitted
that the Respondents have not disputed that the Petitioners are
“persons interested” since their names appeared on the purported
consent agreement itself. He submitted that even if there are disputed
questions of fact as sought to be canvassed by the Respondents,
even then, in a given case, the Writ Court has jurisdiction to entertain
a Writ Petition involving disputed questions of fact. There is no
absolute bar for entertaining a Writ Petition even if the same is arising
out of a contractual obligation and/or involves some disputed
questions of fact. In support of this submission, he placed reliance on
the judgment of the Supreme Court in case of Vinobha Bhave Nagar
Godavari Adhyapak CHSL vs. Central Railway, 2020 SC Online
19. It is submitted by the learned counsel that the Writ
Petition is maintainable against a private persons also, who have
benefited from the failure of a public authority. In support of this
submission, he placed reliance on the judgment of this Court in case
of Rustam Phiroze Mehta vs. State of Maharashtra, 2021 SCC
Online Bom. 1090. He submits that in this case, constitutional rights
of the Petitioners under Article 300-A have been abrogated by the
Respondents. Learned counsel for the Petitioners also tendered a
compilation of judgments in support of his submissions comprising of
ten judgments, including already referring to aforesaid.
20. Mr.Godbole, learned counsel for the Respondent No.4 on
the other hand submitted that the award made under Section 23-A of
the Fair Compensation Act, 2013 is only an offer. He relied upon
Section 23-A of the Fair Compensation Act, 2013 and submitted that
the Competent Authority rightly made an award under the said
provision only in respect of “persons interested”, who appeared
before him and agreed in writing on the matters to be included in the
award. The Petitioners did not appear before the Competent Authority
under Section 23-A of the Fair Compensation Act, 2013. He invited
our attention to the consent agreement filed by the Respondent Nos.4
to 29, including his clients. He submitted that the said agreement was
only in respect of 14 H 83 R out of the total lands. He submitted that
the consent agreement was only in respect of 11 R out of the total
land acquired admeasuring 24 H 83 R and 16 H and not the entire
21. Learned counsel invited our attention to the averments
made by the Petitioners in the plaint before the learned Civil Judge,
Senior Division, Palghar and submitted that the Petitioners had
claimed share only to the extent of 12.5% in the entire property. All
branches are of the brother of the Petitioner No.1. He submitted that
insofar as the Petitioner No.1 is concerned, his share is only to the
extent of 7.75%. Learned counsel placed reliance on the judgment of
the Hon’ble Supreme Court in case of Dr. G.H. Grant vs. The State
of Bihar, AIR 1966 SC 237 in support of his submission that it is not
the award of the Collector, which is the source of right of
22. It is submitted that the award is strictly speaking an offer
made to the “persons interested” in the land notified for acquisition.
The “persons interested” is entitled to accept the offer but is not
bound to accept it. He may ask for a reference to the Court for
adjudication of his claim for adequate compensation or may accept
compensation under protest. Learned counsel for the Respondent
No.4 distinguished the judgments cited by the learned counsel for
23. Ms.Solunke, learned AGP for the State invited our
attention to the averments made in the affidavit in reply filed by the
Respondent No.1 and submitted that the Competent Authority is not
empowered to decide the question of title / ownership of land
acquired, but the same could be decided only by the Civil Court. She
submitted that after carrying out the survey and inspection of the
revenue records of the writ lands, the Collector found that the said
land had names of originally 18 persons, who have expired and their
legal heirs have come on record. After due process was followed, the
consent terms were entered into by all the parties, who were title
owners on the said land except that of the Petitioners.
24. It is submitted that as per the information provided to the
office of the Deputy Collector, the Petitioner No.1 is the owner of the
1.85% share in the said land and is entitled to receive an amount of
Rs.3,70,904/- towards his share in the property by consent. If the
Petitioner No.1 is aggrieved by the said valuation, the Petitioner No.1
is always entitled to initiate appropriate proceedings by way of an
appeal to dispute the compensation provided qua his share /
ownership in the concerned property is proved.
25. It is submitted that if the Petitioners are aggrieved by the
impugned order and the order of distribution of compensation amount
to the Respondent Nos.4 to 29, the Petitioners are free to initiate
appropriate proceedings before the Civil Court against private
Respondents and to seek an order of deposit of their share with the
Civil Court. It is submitted that the process of acquiring the said land
was initiated. All the interested persons were given notice. The
consent terms were filed by most of the interested persons and
accordingly the said land was acquired. The Petitioners can apply for
enhancement of the claim by filing appropriate proceedings before
the Appellate Authority or by filing appropriate proceedings against
the co-owners of the said lands.
26. Mr.Amrut Joshi, learned counsel for the Petitioners in his
rejoinder arguments submitted that since the impugned award is
passed under Section 23-A of the Fair Compensation Act, 2013, such
award cannot be construed as an offer. He distinguished the
judgment in case of Dr. G.H. Grant (supra) cited by the learned
counsel for the Respondent No.4.
27. It is not the case of the Petitioners that the Petitioners are
the only owners of the entire property under acquisition. The
Petitioners claimed a small portion thereof. In the Special Civil Suit
filed by the Petitioners against the Respondent Nos.4 to 29, it was
clearly admitted that the contesting Respondents were the relatives of
the Petitioners and claiming through late Sardarmal Gulabchand.
The total share in the writ property claimed by all the Petitioners was
only to the extent of 7.75%. It is the case of the Competent Authority
that the notices were given to all the parties by the Competent
Authority. However, the Petitioners did not appear before the
Competent Authority. The Respondent Nos.4 to 29 appeared and
gave their consent for acquisition of writ lands by entering into a
writing and accepted the agreed compensation. The share of the
Petitioner No.1 is 1.55% and the compensation is accordingly derived
at Rs. 3,11,560/-. The share of the Petitioner Nos.2, 3, 4 and 5 also
is at 1.55% each.
28. A perusal of Section 23-A(1) of the Fair Compensation
Act, 2013 reads thus :
"23- A. Award of Collector without enquiry in
case of agreement of interested persons
(1) Notwithstanding anything contained in section
23, if at any stage of the proceedings, the Collector is
satisfied that all the persons interested in the land
who appeared before him have agreed in writing on
the matters to be included in the award of the
Collector in the form prescribed by rules made by the
State Government, he may, without making further
enquiry, make an award according to the terms of
such agreement.”
29. A perusal of Section 23-A (1) of the Fair Compensation
Act, 2013 indicates that the Collector is empowered to make an
award in accordance with the terms of the agreement with all persons
interested in the land, who appeared before him and agreed in writing
on the matters to be included in the award in the form prescribed by
rules made by the State Government. The Petitioners admittedly did
not appear before the Competent Authority and did not enter into any
agreement in writing by including their terms in the award.
30. We are not inclined to accept the submission made by
Mr.Joshi, learned counsel for the Petitioners that even if one or more
persons interested claiming certain share in the property under
acquisition are absent, no award can be made under Section 23-A of
the Fair Compensation Act, 2013 in favour of other persons interested
having certain share in the property under acquisition to the extent of
their share. The said award under Section 23-A of the Fair
Compensation Act, 2013 made by the Competent Authority
quantifying the compensation for the Petitioners is not final and
binding on the Petitioners. The said award was made after making
enquiry as contemplated under Section 23-A of the Fair
Compensation Act, 2013. The Petitioners have a remedy to apply for
enhancement of the said claims under Section 64 of the Fair
Compensation Act, 2013. The Civil Suit filed by the Petitioners inter-
alia praying for partition, separate possession and injunction in
respect of various properties situated at different places is
pending.The lis pendens executed on behalf of the Petitioners is
already registered in the Sub-Registrar, Talasari.
31. Insofar as injunction order passed by the Civil Court
below Exhibit 5 in Special Civil Suit No.41 of 2010 on 17 th January,
2013 is concerned, by the said order, the Defendant Nos.1 to 32 in
the said suit or anybody claiming on their behalf were temporarily
restrained from creating third party rights, title and interest or
exchange or convey or lease out or mortgage the said properties to
any third persons. If according to the Petitioners, the Respondent
Nos.4 to 29 could not have transferred their share to the acquiring
body in the teeth of an injunction order passed by the Civil Suit, the
Petitioners can adopt appropriate proceedings against the
Respondent Nos.4 to 29 before the Civil Court. The award made
under Section 23-A of the Fair Compensation Act, 2013 by the
Competent Authority cannot be set aside by this Court in this Writ
Petition in view of there being the disputed questions of fact and the
issue of title of the Petitioners being sub-judice before the Civil Court .
The question as to whether the Petitioners have any rights over the
writ property or not is pending before the Civil Court.
32. In so far as the judgment of this Court in case of
Pandurang vs. State of Maharashtra & Ors. (supra), relied upon
by the learned counsel for the petitioners, it is held by this Court that
an award made by the Collector under Section 11 of the Act is an
offer of price. A person is entitled to accept the compensation
offered under protest and then apply for making of a reference to
the District Court for determination of the compensation. When a
person enters into an agreement under Section 11(2), the award
cannot be regarded as an offer which may or may not be accepted
by the person whose land is acquired because he has entered into
an agreement regarding the amount of compensation. In our view,
the said judgment would not advance the case of the petitioners.
The respondent nos.4 to 27 have admittedly given their consent and
have accepted amount of compensation. If the petitioners are
aggrieved by the quantification of compensation, the remedy of the
petitioners is to apply for enhancement under Section 64 of the Fair
Compensation Act, 2013. The said judgment in case of Pandurang
vs. State of Maharashtra & Ors. (supra) is clearly distinguishable
on facts.
33. In so far as the judgment of the Supreme Court in case of
Nareshbhai Bhagubhai & Ors. vs. Union of India & Ors. (supra)
with other connected matters relied upon by the learned counsel for
the petitioners in support of the submission that where a statute
provides for a thing to be done in a particular manner, then it has to
be done in that manner and in no other manner is concerned, there is
no dispute about this proposition of law. In our view, since under
Section 23A of the Fair Compensation Act, 2013, the competent
authority is empowered to make an award if all the persons
interested to appear before the competent authority and agreed for
acquisition of their respective shares and accepted the
compensation, the competent authority is empowered to make an
award under the said provision. No steps are taken by the
competent authority contrary to the mode and manner of making an
award prescribed under Section 23A. The said judgment of the
Supreme Court in case of Nareshbhai Bhagubhai & Ors. vs. Union
of India & Ors. (supra) thus would not advance the case of the
petitioner and is clearly distinguishable on facts.
34. In so far as the judgment of the Supreme Court in case of
Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai &
Ors. (supra) relied upon by the learned counsel for the petitioners is
concerned, Supreme Court in the said judgment has held that the
Court has discretion to entertain or not to entertain the petition under
Article 226 of the Constitution of India. It is held that where the Writ
Petition has been filed for the enforcement of any of the Fundamental
rights or where there has been a violation of the principle of natural
justice or where the order or proceedings are wholly without
jurisdiction or the vires of an Act is challenged, an alternate remedy
would not operate as an absolute bar in these circumstances. The
petitioners in this case have not demonstrated as to how their case
falls under the exceptions carved out. The said judgment of the
Supreme Court in the case of Whirlpool Corporation vs. Registrar
of Trade Marks, Mumbai & Ors. (supra) would not apply to the facts
of the case of the petitioners.
35. Insofar as the judgment of the Supreme Court in case of
Radha Krishan Industries vs. State of Himachal Pradesh & Ors.
(supra) relied upon by the petitioners is concerned, the Supreme
Court has taken a similar view that was taken in case of Whirlpool
Corporation vs. Registrar of Trade Marks, Mumbai & Ors.
(supra). For the reasons recorded by this Court while dealing with the
judgment of the Supreme Court in case of Whirlpool Corporation
vs. Registrar of Trade Marks, Mumbai & Ors. (supra), this
judgment would also not apply to the case of the petitioners.
36. In so far as the judgment of this Court in case of
Society Ltd. vs. Central Railway (supra) relied upon by the learned
counsel for the petitioners is concerned, this Court in the said
judgment recorded a finding that there were no disputed questions of
fact in the petition and accordingly held that the writ petition was
maintainable. In this case, the suit filed by the petitioners for
adjudication of their rights, title and interest in respect of the writ
property is still pending. Thus the said judgment of this Court in case
Housing Society Ltd. vs. Central Railway (supra) does not assist
the case of the petitioners.
37. In so far as the judgment of this Court in case of Rustam
Phiroze Mehta vs. State of Maharashtra & Ors. (supra) relied upon
by the learned counsel for the petitioners is concerned, in prayer
clause (c) of this petition, the petitioners have prayed for mandatory
injunction against private parties to deposit, the amount received by
them from the competent authority. A civil suit filed by the petitioners
against these respondents is pending. The said Judgment would not
apply to the facts of this case.
38. In so far as the judgment in case of Nazir Ahmad vs.
The King-Emperor (supra) relied upon by the learned counsel for
the petitioners is concerned, the said judgment would not even apply
remotely to the facts of this case. In the said judgment, the Court has
dealt with the confession recorded by the Magistrate.
39. In so far as the judgment of the Supreme Court in the
case of State of Karnataka & Anr. vs. Sangappa Dyavappa
Biradar & Ors. (supra) is concerned, the Supreme Court has held
that where the consent award was passed by the LAO with an
undertaking from the respondent landowners that they would not seek
enhancement of compensation so awarded from any Court, the
High Court could not have substituted the award passed by the
LAO. In our view, the judgment of the Supreme Court in case of
State of Karnataka & Anr. vs. Sangappa Dyavappa Biradar & Ors.
(supra) would not apply to the facts of this case even remotely.
40. In so far as the judgment of the Supreme Court in case
of State of Gujarat & Ors. vs. Daya Shamji Bhai & Ors. (supra)
relied upon by the learned counsel for the petitioners is concerned,
Supreme Court in the said judgment held that the claimants had
agreed to receive compensation and 25 per cent more in addition
thereto and agreed not to seek any reference under Section 18. They
had also agreed to forgo their right to seek reference under Section
18 of the Act. In view of the specific contract made by the
respondents in terms of Section 11(2), they were not held entitled to
seek a reference from civil Court. In our view, this judgment would
not advance the case of the petitioners. It is not the case of the
respondents that the petitioners not having appeared before the
competent authority and not having agreed to accept the
compensation by consent cannot be allowed to apply for
enhancement of claim under Section 64 of the said Fair
Compensation Act, 2013. The judgment of the Supreme Court in
case of State of Gujarat & Ors. vs. Daya Shamji Bhai & Ors.
(supra) thus would not apply to the facts of this case and is clearly
distinguishable on facts.
41. In so far as the judgment of the Supreme Court in case
of Dr.G.H. Grant vs. The State of Bihar (supra) relied upon by
Mr.Godbole, learned counsel for the respondent No.4 is concerned, it
is held that an award by the Collector is strictly speaking an offer
made to the person interested in the land notified for acquisition. The
latter may accept the offer, but is not bound to accept it. He may ask
for a reference to the Court for adjudication of his claim for adequate
compensation. The person interested may even accept the
compensation under protest as to the sufficiency of the amount and
ask for a reference. It is the case of the respondents that the
petitioners had given their consent for making an award under
Section 23A of the Fair Compensation Act, 2013, and based on such
consent, the impugned award has been made by the competent
authority under Section 23A of the Fair Compensation Act, 2013.
The right of the petitioners under the provisions of the Fair
Compensation Act, 2013 are not taken away by virtue of the said
impugned award made by the competent authority under Section 23A
of the Fair Compensation Act, 2013 in so far as the alleged claim of
the petitioners in the writ property is concerned. In our view, the writ
petition is totally devoid of merit.
42. We accordingly pass the following order :-
(i). The Writ petition is dismissed. No order as to costs. | The Bombay High Court recently held that the Collector can pass a compensation award in favour of persons having share in the property under acquisition to the extent of their share even if other interested persons claiming share do not appear before the Collector.
A division bench of Justice RD Dhanuka and Justice MM Sathaye upheld the compensation award for acquisition of certain land for the Bullet Train Project under the Fair Compensation Act. The award was challenged on the ground that it was passed without the petitioners’ consent.
“We are not inclined to accept the submission made by Mr. Joshi, learned counsel for the Petitioners that even if one or more persons interested claiming certain share in the property under acquisition are absent, no award can be made under Section 23-A of the Fair Compensation Act, 2013 in favour of other persons interested having certain share in the property under acquisition to the extent of their share”, the court held.
The petitioners are a family of five claiming to have 12.5 percent share in lands (writ lands) in Village Varvada, District Palghar. They alleged that the respondents (29 individuals) illegally submitted the writ lands for acquisition under Section 23A of the Fair Compensation Act, 2013 behind their back. In 2010, the petitioners had filed a suit against the respondents for partition and separate possession of the writ lands. In 2013, the Civil Court temporarily restrained the respondents from creating any third-party interest on the writ lands. The High Court confirmed this interim order.
In March 2022, the writ lands were acquired for the Bullet Train Project with the consent of the respondents and the compensation amount was disbursed to the them. Hence the present writ petition.
The petitioners claimed that no notice under Section 21 of the Act, 2013 was issued to them. Thus, the disbursement of compensation in favour of the respondents is invalid
The respondents contended that the award is only an offer and was made by the Competent Authority under the Act, 2013 only in respect of persons interested to appeared before him and give written consent. However, the petitioners did not appear before it.
The Competent Authority submitted that it issued notice to all parties but the petitioners did not appear. The respondents appeared and consented to the acquisition of the writ lands. The share of the each of the petitioner is 1.55% of the land and accordingly the compensation is Rs. 3,11,560/- each, it added.
The court noted the petitioner have only claimed a small portion of the land.
Section 23A(1) of the Act, 2013 provides that if all persons interested in the land who appeared before the Competent Authority have consented to the award, the Authority may make the award without making any further enquiry.
Thus, the court did not accept the petitioners’ submission no award could be made if some interested persons did not appear before the Competent Authority.
The court noted that the award under the section 23A isn't final and binding on the petitioners. They have a remedy for enhancement of the claim under section 64 of the Fair Compensation Act 2013.
Further if according to the petitioners the respondents could not transfer their share to the acquiring body due to the Civil Court’s interim order, they can adopt appropriate proceedings against the respondents before the Civil Court, the court observed.
“The award made under Section 23-A of the Fair Compensation Act, 2013 by the Competent Authority cannot be set aside by this Court in this Writ Petition in view of there being the disputed questions of fact and the issue of title of the Petitioners being sub-judice before the Civil Court. The question as to whether the Petitioners have any rights over the writ property or not is pending before the Civil Court”, the court added.
Case no. – Writ Petition No. 14582 of 2022
Case Title – Dilip Babubhai Shah and Ors. v. Additional Resident Deputy Collector and Ors. |
Present petition is filed by the Union of India and
others seeking following reliefs;
“(i) To strike down the Section 110(1)(j) of
the Karnataka Municipal Corporation Act,
1976 in so far as non exepting the land used
or intending to be used for residential or
commercial purposes by the Union of India
from taxes.
(ii) To quash the demand notice dated
04.06.2010 in No. EDS/ Kum.Vi/P.R. 173/
R.13232/ 09-10 /A7 issued by the Assistant
Corporation, Mangalore, i.e., the respondent
No.3 vide Annexure-C and notice dated
issued by the Revenue Officer, Mangalore
Municipal Corporation, Mangalore i.e., the
respondent No.4 vide Annexure-F.
(iii) Direct the respondent Nos.2 to 4 to
refund a sum of Rs.4,11,317/- received vide
DD No.280420 dated 28.03.2007, a sum of
Rs.15,679/- received vide DD No.288751
dated 31.10.2007 and a sum of Rs.15,679/-
received vide DD No.172171 dated
02.04.2008 from the petitioner No.3 towards
property tax in respect of the residential
quarters owned by it to the petitioner No.3
along with interest from the date of receipt
till the date of repayment”.
2. Sri. H.Shanthi Bhushan, learned Additional
Solicitor General appearing for the petitioners fairly
submits that he would not press the relief No.(i). Hence,
the same is does not survive for consideration.
Therefore, the present petition is taken up for
consideration of relief Nos. (ii) and (iii).
3. It is the case of the petitioners that it owns
buildings in Mangalore City which has been used for
residential quarters for its employees and the said
building is situated within the jurisdiction of
respondent No.2-Corporation. That respondent No.3
had demanded property tax in respect of the building
used for residential purposes by the petitioner No.3.
That the petitioner No.3 in advertently with bonafide
intention made the payment in an aggregate sum of
Rs.4,42,675/- to the respondent No.2-Corporation in
compliance with the demand notices issued during the
year 1994-95 to 31.03.2008 as per the following
“(a) A sum of Rs.4,11,317/- vide DD No.280420
dated 28.03.2007,
(b) A sum of Rs.15,679/- vide DD No.288751
dated 31.10.2007 and
(c) A sum of Rs.15,679/- vide DD No.172171
dated 02.04.2008”.
4. It is the further contention of the petitioners
that it was subsequently noticed that demand made by
the respondent No.-2 corporation with regard to payment
of property tax was illegal and contrary to the provisions
of Article 285 (1) of the Constitution of India. Therefore,
a representation dated 25.02.2010 as per Annexure-A
was made to the respondent No.2 seeking exemption of
the building from the payment of property tax and also
sought for refund of the amount already paid by it. Since,
no action was taken, the petitioner No.3 made another
representation on 25.05.2010 as per Annexure-B
reiterating its earlier requisition. However, on
04.06.2010, respondent No.3 relying upon the
provision of Section 110(1)(j) of the Karnataka
Municipal Corporation Act, 1976 (hereafter referred to
as the KMC Act) rejected the claim of the petitioner
No.3 and demanded for payment of property tax for
the year 2009-10 as per Annexure-C. In response
thereof, petitioner No.3 after obtaining opinion from
its Law Department made yet another representation
on 28.09.2010 as per Annexure-D seeking exemption
from payment of property tax as provided under
Article 285 (1) of the Constitution of India. The
respondent No.4 without considering the
representations given earlier, issued another demand
notice dated 16.07.2011 demanding payment of
arrears of property tax in respect of the building
belonging to the petitioners on the premise of the
provisions of the Section 110(j) of the KMC Act, 1976.
Being aggrieved by the aforesaid demand, petitioners
are before this Court.
5. This Court considering the fact and
situation of the matter had directed the learned
Additional Solicitor General appearing for the
petitioners and learned counsel appearing for the
respondent Nos.2 to 4 to furnish the details with
regard to the date of construction of building in
question. Learned counsel for the respondent No.3
has submitted copy of the building licence concerning
the property in the nature of demand register extract.
It is seen that the building licence has been issued by
the respondent No.2 on 26.04.1991 and building has
been completed and occupancy certificate has been
issued on 10.06.1994. The aforesaid information was
required in view of the Article 285 of the Constitution
of India which provides as under;
"285. Exemption of property of the
Union from state taxation.- (1) The
property of the Union shall, save in so far as
Parliament may by law otherwise provide,
be exempt from all taxes imposed by a
State or by any authority within a State.
(2) Nothing in clause (1) shall , until
Parliament by law otherwise provides,
prevent any authority within a State
from levying any tax on any property of the
Union to which such property was
immediately before the commencement of
this Constitution liable or treated as
liable, so long as that tax continues to be
levied in that State".
6. Thus, it is clear from reading of the clause
(1) of Article 285 of the Constitution extracted
hereinabove that if a building belonging to Union of
India was in existence prior to coming into effect of
the Constitution and said building unless Parliament
may by law otherwise be exempt from levy of tax by
the State or any other authorities. Clause (2) of the
Article 285 of the Constitution on the other hand
makes it clear that if a building was in existence prior
to commencement of the Constitution and till
Parliament by law otherwise provides the same shall
not levy tax thereon. In the instant case as noted
above, the building in question has come into
existence in the year 1994 subsequent to
commencement of Constitution.
7. Learned ASG also relies upon the judgment
of this Court in the case of Union of India and
others vs. City Municipal Council, Rani Bennur
and another reported in AIR 2000 Karnataka 104,
wherein dealing with identical situation, this Court at
paragraph 7 as held as under;
“7. Provisions of Article 289 exempt the
property of the State and that of Article 285,
provide exemption to property of the Union
are complementary to each other with a view
not to levy the tax by State Legislature on
the property of the Union and also by the
Parliament on the property of the State.
Article 285 refers to the property of the
Union. If the property belongs to the Union,
then, irrespective of its use, no tax could be
levied by the State Legislature or by
Municipal Authorities. The concept of use is
not provided under Article 285. The denial of
exemption under the proviso to Section 94 of
the Act on the ground that the property is
used or intended to be used for residential or
commercial purpose cannot be considered to
be inconsonance with the spirit of Article 285
of the Constitution of India. Any property
belonging to the Union of India irrespective of
its use could not be subjected to tax and
therefore the proviso of Section 94 of the
Karnataka Municipalities Act to that extent is
ultra vires of Article 285 of the Constitution of
8. Learned counsel for the respondent Nos. 2
to 4 does not dispute the aforesaid legal position. In
that view of the matter, petition deserves to be
allowed quashing the demand notices as per
Annexures-C and F. As regards the prayer for refund
of Rs.4,42,675/- is concerned which was apparently
paid by the petitioners under bonafied intention,
learned counsel for the respondents submits that the
petitioners though not liable for property tax, are
liable to pay service tax for the amenities provided
and that the amount so paid would be adjusted/set off
against the said claim. Learned ASG has no objection
for the same. The respondent –authorities shall
intimate about the service tax which the petitioners
are liable to pay and the amount already paid by the
petitioners as noted above shall be adjusted against
the said demand.
With the aforesaid observations, the petition is
disposed of. | The Karnataka High Court recently quashed the demand notices issued to the Union of India by the Mangalore Municipal Corporation towards payment of property tax in respect of the building used for staff quarters.
A single judge bench of Justice M G S Kamal by its order dated November 8, 2022, quashed the notices issued by the corporation dated 04-06-2010 and 16-07-2011. However, since the amount was already paid to the corporation by the department, it directed the corporation to adjust the same towards payment of service tax for the amenities provided.
The Union government owns buildings in Mangalore City which are used for residential quarters for its employees. The corporation demanded property tax in respect of the building. The department inadvertently made the payment in an aggregate sum of Rs.4,42,675 to the corporation in compliance with the demand notices issued during the year 1994-95 to 31.03.2008.
Assistant Solicitor General H Shanthi Bhushan for the petitioners contended that demand made by the respondent No.-2 corporation with regard to payment of property tax was illegal and contrary to the provisions of Article 285 (1) of the Constitution of India. Accordingly, representations were made to the corporation.
In response the corporation relying upon the provision of Section 110(1)(j) of the Karnataka Municipal Corporation Act, 1976, rejected the claim of the petitioner No.3 (Deputy Director General Mines and Coastal Surveys Division) and demanded payment of the property tax. Following which it approached the court.
Findings:
The bench noted that in regards to the residential quarters the building licence has been issued on 26.04.1991 and building has been completed and occupancy certificate has been issued on 10.06.1994.
Referring to Article 285 of the Constitution the bench said “It is clear from reading of the clause (1) of Article 285 of the Constitution, that if a building belonging to Union of India was in existence prior to coming into effect of the Constitution and said building unless Parliament may by law otherwise be exempt from levy of tax by the State or any other authorities.”
Relying on the coordinate bench judgement in the case of Union of India and others vs. City Municipal Council, Rani Bennur and another reported in AIR 2000 Karnataka 104, wherein it held “Provisions of Article 289 exempt the property of the State and that of Article 285, provide exemption to property of the Union are complementary to each other with a view not to levy the tax by State Legislature on the property of the Union and also by the Parliament on the property of the State. Article 285 refers to the property of the Union. If the property belongs to the Union, then, irrespective of its use, no tax could be levied by the State Legislature or by Municipal Authorities. The concept of use is not provided under Article 285.”
Following which it quashed the demand notices.
Case Title: Union of India & others And State of Karnataka & others
Case No: WRIT PETITION No.33252 OF 2012
Date of Order: 08-11-2022
Appearance: H. Shanthi Bhushan, ASST. Solicitor General of India for petitioners.
AGA M.C.Nagashree for R1.
Advocate Hareesh Bhandary T for R2 to R4. |
1. The petitioner is before this Court seeking for the
i) Issue a writ, order or direction in the nature of
certiorari in quashing the impugned order
passed by the City Civil Judge, Bengaluru
dated 08.08.2018 on I.A.No.7 in O.S.
No.4739/2014 vide Annexure-A.
ii) Grant such other relief/s as this Hon'ble Court
deems fit under the circumstances of the case,
in the interest of justice and equity.
2. The suit in O.S.No.4739/2014 has been filed by the
petitioner herein seeking for partition of the various
joint family properties described in the schedule thereto
claiming that as a female member of the joint family,
she had an interest in the said properties by virtue of
the amendment to Section 6 of the Hindu Succession
3. While the suit was pending, I.A.No.7 had been filed by
the 4th defendant the brother of the plaintiff before the
trial Court seeking for addition of two properties in the
schedule of the plaint as item Nos.9 and 10. Assertion
of the 4th defendant in the application was that
3.1. Item No.9 property measuring 1 acre situate in
Sy. No.17/2 of Pallerayanahalli Village, Amruthur
Hobli, Kunigal Taluk, Tumkur District had been
given as dowry at the time of marriage of the 1st
plaintiff - petitioner. Defendant No.1 had, at the
time of marriage of the 1st plaintiff, executed
nominal sale deed in favour of Channaiah - the
father-in-law of the 1st plaintiff and as such, the
said property was also amenable for partition
since the said item has been given as dowry at
the time of the marriage of the 1st plaintiff -
petitioner.
3.2. Item No.10, had been purchased by defendant
No.1 out of his own funds. He had executed a
power of attorney in favour of 1st plaintiff and her
husband at the time of her marriage and later on,
a sale deed came to be executed by the 1st
defendant in favour of the 1st plaintiff and her
husband on 15.05.2006. On these grounds, it was
contended that this is also a family property and
would be amenable for partition.
4. The said application came to be objected to by the
Plaintiffs contending that the property had been
purchased by the father-in-law of the 1st plaintiff -
Chennaiah out of his own funds from third parties much
before the marriage of the 1st plaintiff and that the
same is not a joint family property. If at all the 1st
defendant had any right in the property, the 1st
defendant ought to have filed a declaratory suit to
establish ownership. In respect of item No.10 property,
it was contended that this property had also been
purchased from the 3rd party at the market value and
therefore, could not be amenable for partition.
5. The Trial Court, after hearing the arguments of the
counsels, allowed the application though by way of
cryptic order.
6. Sri.A.Nagarajappa, learned counsel for the petitioner
would submit that there are no reasons which had been
given by the Trial Court for allowing the application for
amendment and therefore, such order is required to be
set-aside. He reiterates the submissions made in the
objection to the application for amendment and again,
submits that item No.9 has been purchased by the 1st
plaintiff's father-in-law and item No.10 has been
purchased by the husband of the 1st plaintiff out of their
own funds and therefore, they are not amenable for
partition.
7. Sri.Prithvi Raj B.N., learned counsel for respondent
No.4, who was defendant No.4 in the Trial Court,
reiterates that the properties covered item Nos.9 and
10, which was sought to be introduced by way of
amendment, were given as dowry and therefore, in a
suit for partition, the said properties would also be
amenable for partition. He supports the order of the
learned Trial Court and states that the said order need
not be interfered with.
8. Sri.K.Venkateshaiah, learned counsel for respondent
No.5, who was plaintiff No.2 in the Trial Court, adopts
the arguments of Sri.A.Nagarajappa, learned counsel for
the petitioner.
9. None appears for respondent Nos.1 to 3.
10. Heard Sri.A.Nagarajappa, learned counsel for the
petitioner and Sri.Prithvi Raj B.N, learned counsel for
respondent No.4 and Sri.K.Venkateshaiah, learned
counsel for respondent No.5.
11. The above petition gives rise to certain interesting
questions, which read as under;
11.1. Whether in a suit for partition, the properties
which had been given as dowry or otherwise
at the time of marriage of the daughter
plaintiff, who is claiming a right of partition
under Section 6 of the Hindu Succession Act,
would be amenable for partition and the
same would be included in a suit for
11.2. Whether the impugned order suffers from
any legal infirmity requiring this Court to
12. Answer to Point No.1: Whether in a suit for
partition, the properties which had been given as
dowry or otherwise at the time of marriage of the
daughter plaintiff, who is claiming a right of
partition under Section 6 of the Hindu Succession
Act, would be amenable for partition and the same
would be included in a suit for partition?
13. The contention of defendant No.4 - applicant before the
Trial Court is that item Nos.9 and 10 properties, which
were sought to be added to the plaint by way of an
amendment were given as dowry to the family of the
1st plaintiff during the time of her marriage. At the
request of in-laws of the 1st plaintiff, a nominal sale
deed was executed in favour of the father-in-law of the
1st plaintiff. As regards item Nos.10 a nominal sale
deed was executed in favour of the husband of the 1st
plaintiff.
14. The suit, admittedly, has been filed for partition
claiming a right in the joint family properties by virtue
of the amendment to Section 6 of the Hindu Succession
Act. The said amendment being a salutary one having
been brought in to provide equal rights to a woman in
the joint family properties.
15. In the present case, interestingly the claim of the 4th
defendant is that certain joint family properties had
been given to the 1st plaintiff and her family members
as dowry during her marriage. That is to say that a
portion of the joint family property was made available
for plaintiff No.1 as either dowry/gift or share in the
property at the time of marriage. This court at present
is not concerned with the offences of Dowry if any,
there being no complaint in regard thereto.
16. Such being the case, I am of the considered opinion
that a beneficiary of Section 6 of the Hindu Succession
Act cannot claim a benefit by way of partition as regard
to joint family properties without reference to the
properties already received by her at the time of
marriage as dowry/gift or otherwise. The said properties
at an undisputed point of time forming part of the joint
family property and the plaintiff having received it, the
same would also have to be made part of the partition
suit in order for the partition to be equitable hence,
those properties would also be amenable to partition.
Hence, the contention of Sri.A.Nagarajappa, learned
counsel for the petitioner that these properties were
independently purchased (Item no. 9 from Defendant
no. 9 and Item No. 10 from third parties) and would not
be amenable for partition is an issue that would have to
be decided after trial and cannot be adjudicated upon at
this stage. The assertions clearly and categorically made
is that the 1st defendant had executed nominal sale
deeds in respect of item Nos.9 and 10 properties.
17. It is for the parties to establish during the course of trial
as to whether the properties belonged to the joint family
or not. If the properties belong to the joint family, then
the same would be amenable for partition. If the
plaintiffs were able to establish that the properties had
been independently purchased out of their own funds
and the said properties are not joint family properties,
then the same would not be amenable for partition.
18. This aspect would have to be ascertained by the Trial
Court only after trial. Hence, I answer Point No.1 by
holding that in a suit for partition, the properties which
had been given as dowry or otherwise at the time of
marriage of the daughter plaintiff, claiming a right of
partition under Section 6 of the Hindu Succession Act,
would be amenable for partition and the same would
have to be included in a suit for partition.
19. Answer to Point No.2: Whether the impugned
order suffers from any legal infirmity requiring
this Court to interfere with the said order?
20. As observed above the order of the Trial Court could
have been better worded and could have provided
better reasoning, however in view of the discussion
above the ultimate order which is passed by the trial
court is proper and correct requiring no interference at
the hands of this Court.
21. In view of the above, this writ petition stands dismissed.
22. In view of dismissal of the writ petition, all pending
interlocutory applications stand dismissed and interim
orders stand discharged. | The Karnataka High Court has held that the properties which had been given as dowry or otherwise at the time of marriage of the daughter, would be amenable for partition and the same will have to be included in a suit for partition, instituted by the daughter. A single judge bench of Justice Suraj Govindaraj said,"In a suit for partition, the properties which had been given as dowry...
The Karnataka High Court has held that the properties which had been given as dowry or otherwise at the time of marriage of the daughter, would be amenable for partition and the same will have to be included in a suit for partition, instituted by the daughter.
A single judge bench of Justice Suraj Govindaraj said,
"In a suit for partition, the properties which had been given as dowry or otherwise at the time of marriage of the daughter plaintiff, claiming a right of partition under Section 6 of the Hindu Succession Act, would be amenable for partition and the same would have to be included in a suit for partition."
Petitioner Hemalatha had approached the court challenging and order dated August 8, 2018, passed by the City Civil Judge Bengaluru, allowing the application filed by the brother of the petitioner seeking to include two properties in the partition suit filed by the petitioner, claiming that they were given in dowry at the time of her marriage.
Advocate A. Nagarajappa, for the petitioner submitted that there are no reasons which had been given by the Trial Court for allowing the application for amendment and therefore, such order is required to be set-aside. Further, it was said that the item No.9 property was purchased by the petitioner's father-in-law and item No.10 was purchased by her husband out of their own funds and therefore, they are not amenable for Partition.
On the contrary, Advocate Prithvi Raj B.N appearing for the respondent brother contended that the properties covered item Nos.9 and 10, which were sought to be introduced by way of amendment, were given as dowry and therefore, in a suit for partition, the said properties would also be amenable for partition.
Court findings:
The court on going through the record was of the opinion that a beneficiary under Section 6 of the Hindu Succession Act cannot claim a benefit by way of partition as regard to joint family properties without reference to the properties already received by her at the time of marriage as dowry/gift or otherwise.
It observed,
"The said properties at an undisputed point of time forming part of the joint family property and the plaintiff having received it, the same would also have to be made part of the partition suit in order for the partition to be equitable hence, those properties would also be amenable to partition."
The court also observed that whether the properties in question were independently purchased and would not be amenable for partition is an issue that would have to be decided by the trial court and it cannot adjudicate on it.
The bench observed, "It is for the parties to establish during the course of trial as to whether the properties belonged to the joint family or not. If the properties belong to the joint family, then the same would be amenable for partition. If the plaintiffs were able to establish that the properties had been independently purchased out of their own funds and the said properties are not joint family properties, then the same would not be amenable for partition. This aspect would have to be ascertained by the Trial Court only after trial."
Case Title: Hemalatha v. Venkatesh
Case No: Writ Petition No.39982 Of 2018
Date Of Order: 16th Day Of February, 2022
Appearance: Advocate A. Nagarajappa For Petitioner; Advocate Manjula P.V For R.1 To R.3; Advocate Prithvi Raj B.N, For R.4; Advocate K.Venkateshaiah, For R.5 |
Heard Sri Avinash A. Uplaonkar, learned counsel
for the petitioners, Smt. Maya T.R., learned High Court
Government Pleader for respondent No.1 and Sri
Sudarshan M., learned counsel for respondent
No.2/defacto complainant.
2. The present petition is filed under Section
482 of Cr.P.C., with the following prayer:
“WHEREFORE, it is most humbly
prayed, Hon'be court by exercise of power
U/s.482 Cr.P.C. be pleased to quash the
taking cognizance dated 01-10-2021 in
Netaji Nagar P.S., Raichur) for the offence
punishable U/sec. 420, 409, 120(B) of IPC,
pending before the ADDL CIVIL JUDGE &
JMFC-III Court at Raichur, against the
petitioners, in the interest of justice and
equity.”
3. Brief facts which are necessary for disposal
of the present petition are as under:
Shridhar R. Banare S/o Ramdas O. Banare lodged
a complaint with Netajinagar Police Station, Raichur
District, on 01.10.2018 which was registered in Crime
No.110/2018 for the offence punishable under Section
420 r/w Section 34 of IPC against Girish Ramdas Banare
and Manager of Pragati Krishna Grameen Bank.
Gist of the complaint averments reveal that the
mother of the complainant by name Smt. Kamala had an
Account with Pragati Krishna Grameen Bank and she
also had the services of a safe locker in the joint names
of the complainant and herself, at the first instance. In
the said locker, 45 tola of gold rings and 65 tolas of gold
ornaments were kept. So also, the original Will and
other documents pertaining to immovable properties
were kept in the said locker. On 19.10.2015,
Smt. Kamala, who is the mother of the complainant died
and on 24.05.2016, the complainant gave an application
to the Bank Manager stating that the locker was to be
operated in the joint names of the complainant and Smt.
Kamala. Since Smt. Kamala is no more, he alone be
permitted to operate the safe locker which was obtained
by his mother. To his surprise, he came to know that
the safe locker operations were made in the name of
first accused who is his elder brother and Smt. Kamala
by giving a necessary written mandate. Therefore, his
request was turned down by the Manager. As such,
complainant sought for action against his brother and
bank officials.
4. The Police after registering the case,
investigated the matter and filed chargesheet against
the petitioners herein as well as the elder brother of the
5. The petitioners being the Manager of Pragati
Krishna Grameen Bank and retired Chief Manager of
Karnataka Grameen Bank, have challenged the
chargesheet on the following grounds:
• “That the petitioners are innocent of
the alleged offences against them and
they are falsely involved in the above
case.
• That, the petitioners are falsely
involved by respondent and there are
no other evidences to state that the
petitioners are involved in the above
said offences, which is bad in law.
• That, the petitioner No.1 joined the
services of the Bank as Probationary
officer (Manager-Scale-II) and posted
to Koppal branch on 09/02/2012.
Thereafter he has been transferred to
work at Jawahar nagar Branch and
from 15-05-2012 to 15-08-2014
worked at the Branch and discharged
his duties as second line officer.
• That, on 31/05/2014 petitioner No.1
was neither 1st key holder or a 2nd key
holder therefore he was not aware of
any operations of Locker No.66 on
31/05/2014. There were also other 2nd
line officers who were looking after
such duties. That, the officers who
were authorized for operation of the
Bank lockers are A-1 & A-4. The copy
of the duty chart is enclosed herewith.
• That, petitioner No.2 was working as
Branch Manager at Jawarhar Nagar
Branch, Raichur from 18/05/2012 to
20/05/2014. Thus, no culpability can
be fastned against the petitioner No.2
as the entire incident of misusing of the
locker pertain to specifically on
• That, it is pertinent to mention that the
petitioner was transferred from the
Jawahar Nagar Branch Raichur to
Regional Manager on promotion as
senior Manager who took the charge
on 21/05/2014. Thus, an act which is
unconnected to the petitioner can be
forced to face the ordered of criminal
trial. The copy of his duty chart is
enclosed.
• The safe deposit locker agreement can
be terminated by neither party on
giving to the other, 7 days notice in
writing of such intention and the keys
of the locker shall in that event be
delivered by the hirer to the Bank at
noon on the day of expiry of the notice
(not withstanding that the period for
which the locker as rented shall not
have expired). Upon the locker being
vacated and the keys
surrendered pursuant to the notice by
the hirer, the bank shall return the
proportionate charges (if paid in
advance) for the unexpired period of
lease treating part of the quarter as full
for the purpose of calculating rent
payable to the Bank.
• In case of joint hires were the
operational condition is several, the
notice of termination and surrender of
keys by one or more of them shall be
construed to have been made under
the express authorization of other/s of
the hirers and the notice of termination
so given and surrender of key by one
or more of them shall be
notice and surrender of keys as if it is
from all the joint hires for all purposes
and intents.
• It is submitted that on a bare perusal
of FIR and Charge-sheet papers, there
is not even an allegation let alone
prima-facie material as against the
petitioner under any of the penal
provisions enumerated in the charge
sheet. Hence, the criminal proceedings
as against the petitioners are
maliciously launched vexatious, illegal
and unsustainable in law.
• That, even as per the prosecution case
itself in the charge sheet their no
material averred to make out any
material of the involvement of the
petitioners.
• That, there is absolutely no cogent or
reliable materials to connect the
petitioners to this case based on the
materials collected by the police as per
the charge sheet and thus the above
proceeding has resulted in gross abuse
of the process of the court and hence
the same has to be quashed.
• Thus, looking towards the chain of
circumstances, the allegation made
prima facie no material is there in the
case, initiated and continuation of
criminal proceeding is nothing but
abuse of process of law.
• That, if the present petition is not
allowed then there would be
continuation of misuse of the provisions
of law and harassment to the
petitioner. Hence proceeding with the
case will not served the purpose of any
body.
• No other case has been filed or pending
before this Hon'ble High Court or any
other court seeking the relief sought in
the petition.
• The petitioner craves leaves to urge
any other points that may be available
at the time of arguments.”
6. Learned counsel for the petitioners
reiterating the grounds urged in the petition vehemently
contended that admittedly there was a safe locker
facility in Krishna Grameen Bank in the name of Smt.
Kamala who is the mother of the complainant and the
first accused. He further contended that initially the
safe locker was being operated in the joint names of the
complainant and mother and subsequently, the mother
has given necessary instructions to the Bank in writing
whereby the joint operation of the safe locker was
modified and it was being operated by the first accused
and Smt. Kamala. Petitioners being Managers of the
Bank, they were required to adhere to the instructions of
the customer and accordingly, they have made
necessary modification in their records and permitted
the first accused and Smt. Kamala to operate the safe
7. After the death of Smt. Kamala, the
complainant gave a letter for operation of the safe
locker which was in the name of Smt. Kamala and was
to be operated jointly by Smt. Kamala and the
complainant. The said letter could not be processed in
view of the subsequent mandate received from the
customer namely Smt. Kamala earlier to her death on
8. Therefore, there is no criminality in
petitioners permitting the first accused to operate the
locker. He also contended that if there is any misuse of
the articles found in the safe locker, it is the first
accused who is responsible for the same and the
Managers have no hand of whatsoever with the alleged
misuse of the articles, inasmuch as, the mandate has
been received on 27.11.2013 when
Smt. Kamala was very much alive.
9. He further argued that if at all, the first
accused has committed any fraud on his mother Smt.
Kamala, the same needs to be decided by the learned
Trial Judge in the pending criminal case and absolutely,
these two petitioners have no hand in the same and
sought for quashing of further proceedings.
10. Per contra, learned High Court Government
Pleader appearing for respondent No.1 and learned
counsel for respondent No.2/defacto complainant in
chorus contended that the petitioners being Managers
have been found fault by the Ombudsman and they
have been warned as to their illegalities in allowing the
first accused to operate the safe locker which prima
facie shows that the Managers were also involved and
they have colluded with the first accused in the alleged
misuse of the articles found in the locker and therefore,
sought for dismissal of the petition.
11. This Court perused the material on record
meticulously in view of the rival contentions of the
12. On such perusal, it is evident that at an
undisputed point of time, Smt. Kamala who is the
mother of the first accused and the complainant opened
an Account in Pragati Krishna Grameen Bank.
13. She also availed the facility of the locker to
keep her precious ornaments and the documents
pertaining to the immovable properties. The locker was
initially being operated in the joint names of the
complainant and Smt. Kamala. However, by issuing a
letter on 27.11.2013, Smt. Kamala wanted a
modification in the joint operation of the locker whereby,
name of the complainant was removed and in that place,
she wanted the joint operation of the locker by herself
and the first accused. Admittedly, on 27.11.2013, there
was no differences between the complainant and the
first accused.
14. Being the Managers of the Bank, under the
Banking rules, the petitioners were bound to adhere to
the mandate issued by the customer. Accordingly, they
did not suspect any foul play in the letter dated
27.11.2013 and modified the joint operation of the safe
locker which was standing in the name of Smt. Kamala.
15. Subsequently, on 19.10.2015, Smt. Kamala
passed away. But, the complainant visited the Bank on
24.05.2016 with a request to permit him to operate the
locker by himself as Smt. Kamala was no more, as
earlier he was also permitted to operate the locker along
with Smt. Kamala jointly or severally. The said request
was turned down by the Managers on the ground that
there was a modification through letter dated
27.11.2013 and therefore, the criminal complaint came
to be lodged.
16. As it could be seen from the material on
record, the dispute is only between the complainant and
the first accused and for which unnecessarily the
Managers of the Pragati Krishna Grameen Bank who are
the petitioners herein have been arraigned as additional
accused by making a vague allegation of collusion.
17. Further, the complainant has also
approached the Ombudsman. The Ombudsman has
noted certain irregularities and warned the petitioners to
be careful in future while dealing with similar situation.
There is a thin line of difference between the irregularity
and illegality. However, the said thin line is subtle. Every
irregularity would not per se amount to illegality.
18. For the purpose of invoking Section 420 of
IPC, there must be existence of a wrongful loss and
wrongful gain by the alleged action.
19. In the case on hand, neither the complaint
nor the charge sheet material makes out a case that the
petitioners are the beneficiaries of the wrongful gain.
Nor any wrongful loss has occurred to the complainant
by an act which is attributable to the petitioners herein.
To make out a case under Section 420 of IPC, wrongful
loss occurred to the complainant and wrongful gain
made by the accused persons is a sine qua non. In the
case on hand, petitioners have simply adhered to the
mandate issued by the accountholder Smt. Kamala on
27.11.2013 as dutiful bank officials.
20. Merely acting on the mandate of the
customer, no intentions of criminality can be attributed
so as to proceed against the petitioners in the trial.
When such requisite material is not available on record
and in the charge sheet materials, this Court is of the
considered opinion that continuation of the criminal
proceedings as against the petitioners herein would
definitely result in abuse of process of law.
21. However, the case against the first accused
would continue, as according to the complainant, he has
misused the articles found in the safe locker including
the documents pertaining to the property left behind by
the parents of the complainant.
22. Therefore, this Court is of the considered
opinion that a case is made out by the petitioners to
quash the further proceedings as against them only.
23. Hence, the following order is passed:
The criminal petition is allowed.
The order of taking cognizance dated 01.10.2021
passed by Additional Civil Judge and JMFC-III Court at
Raichur, in C.C.No.24172/2021 (Crime No.110/2018 of
Netaji Nagar Police Station, Raichur) for the offences
punishable under Sections 420, 409, 120(B) of IPC and
all further proceedings pursuant thereto is hereby
quashed only as against the petitioners herein.
However, this shall not act as precedent for the
first accused to obtain similar order. | The Karnataka High Court has quashed the criminal proceedings initiated against two Bank managers for changing the access of a locker, purportedly on the application of one of the joint holders.
A single judge bench of Justice V Srishananda said that no intention of criminality can be attributed to Bank managers for merely acting on the mandate of the customer.
Ramchandra and Gururaj Deshpande of the Pragati Krishna Grameen Bank were booked under Sections 420, 409, 120(B) of IPC.
The accused were charged based on a complaint given by one Shridhar R Banare, who claimed that his mother Kamala and he had a joint account with the services of a safe locker in their joint names. Banare said that after his mother died, he gave an application to the Bank Manager seeking permission to operate the safe locker alone. However, he was informed that the safe locker operations were made in the name of the his elder brother (first accused) vide a written mandate given by his mother.
Banare then lodged an FIR alleging foul play, stating that the Bank managers in connivance with his elder brother misused the locker articles. It was averred that the Ombudsman had warned the duo as to their illegalities in allowing the first accused to operate the safe locker.
The High Court noted that by issuing a letter on 27.11.2013, Smt. Kamala wanted a modification in the joint operation of the locker whereby, name of the complainant was removed and in that place, she wanted the joint operation of the locker by herself and the first accused.
“Being the Managers of the Bank, under the Banking rules, the petitioners were bound to adhere to the mandate issued by the customer. Accordingly, they did not suspect any foul play in the letter dated 27.11.2013 and modified the joint operation of the safe locker which was standing in the name of Smt. Kamal,” the Court observed.
It added that the dispute is only between the complainant and his brother for which unnecessarily the Managers were arraigned as additional accused by making a "vague allegation of collusion".
Further referring to the irregularities noted by the Ombudsman qua the petitioners, the bench opined “There is a thin line of difference between the irregularity and illegality. However, the said thin line is subtle. Every irregularity would not per se amount to illegality.”
As regards invoking of section 420 of the IPC against the accused the bench held “Neither the complaint nor the charge sheet material makes out a case that the petitioners are the beneficiaries of the wrongful gain. Nor any wrongful loss has occurred to the complainant by an act which is attributable to the petitioners herein. To make out a case under Section 420 of IPC, wrongful loss occurred to the complainant and wrongful gain made by the accused persons is a sine qua non.”
Further it said “In the case on hand, petitioners have simply adhered to the mandate issued by the accountholder Smt. Kamala on 27.11.2013 as dutiful bank officials.”
It added, “Merely acting on the mandate of the customer, no intentions of criminality can be attributed so as to proceed against the petitioners in the trial.”
Allowing the petition the bench said “Continuation of the criminal proceedings as against the petitioners herein would definitely result in abuse of process of law.” However, it clarified that the case against the first accused would continue.
Case Title: Ramachandra & ANR And State Of Karnataka
Case No: CRIMINAL PETITION No.201596/2022
Date of Order: 02-02-2023
Appearance: Avinash A Uplaonkar, Advocate for petitioners.
Maya T.R, HCGP FOR R1.
Sudarshan M, Advocates for R2. |
Case :- CRIMINAL REVISION No. - 1714 of 2022
Counsel for Revisionist :- Jai Prakash Singh
Counsel for Opposite Party :- G.A.
In view of the provisions of Section 228-A of Indian
Penal Code and the mandate of Hon’ble Supreme Court in
the case of Ravi Shankar alias Baba Vishwakarma Vs.
State of Madhya Pradesh, (2019)9 SCC 689 the victim
herein after referred to as ‘X’.
Heard learned counsel for the revisionist and Shri S.K.
Pal, learned Government Advocate assisted by Shri Anirudh
Sharma, learned Additional Government Advocate
representing the State.
Being aggrieved and dissatisfied by the order dated
24.1.2022 passed by the Child Welfare Committee, Kasganj
whereby the victim 'x' was directed to be kept in Rajkiya Bal
Grih (Balika), Swaroop Nagar, Kanpur, the second
revisionist, who is the mother of the victim has approached
this Court by filing this criminal revision for setting aside the
aforesaid order and also for handing over the custody of 'X'
to her.
The facts that formed the bedrock of this revision are
that on 27.11.2021, second revisionist, who is the mother of
'X' lodged the FIR under Sections 363 and 366 IPC in
respect of missing of her daughter. During investigation,
victim was recovered on 16.1.2022 from Patiyali Railway
Station, Kasganj and she was produced before the Child
Welfare Committee, Kasganj where her statement was
recorded on 22.1.2022 in which she has expressed her
desire to go with her mother and also refused for her
medical examination, but the Child Welfare Committee,
Kasganj vide impugned order dated 24.1.2022 instead of
giving the custody of the victim ‘X’ to her mother, has sent
her to Rajkiya Bal Grih (Balika), Swaroop Nagar, Kanpur.
Second revisionist has filed an application before the
Child Welfare Committee, Kasganj stating therein that she is
the mother of the victim. The victim is minor aged 15 years
and she is unable to understand her pros and cons and that
she may be given in her custody. During her counselling by
the Child Welfare Committee, Kasganj, the victim has
expressed her desire to go with her mother.
However, the Child welfare Committee, Kasganj vide
order dated 24.1.2022 has directed the victim to be kept in
Rajkiya Bal Grih (Balika), Swaroop Nagar, Kanpur on the
ground that the mother of the victim is living in Delhi to
earn her livelihood and the victim is living with her maternal
uncle and in the circumstances proper care of the victim
can be taken in her house.
Vide order dated 07.7.2022, second revisionist was
directed to appear before this Court. Learned Additional
Government Advocate was also directed to ensure the
presence of revisionist ‘X’, the victim before this Court.
Pursuant to the order of this Court second revisionist
is present before this Court.
Victim 'X' has also been produced before this Court by
Head Constable 75 Vikas Yadav P.N.N 062910040 and Lady
Constable 20, Sapna Kumari P.N.N. No. 212911109 of police
station Patiyali, Kasganj. Personal affidavit of Shri B.B.G.T
Murthy, presently posted as Superintendent of Police,
Kasganj has been filed, which is taken on record.
On query by this Court, the victim has expressed her
desire to go with her mother. Mother of the victim is also
willing to keep the victim with her.
The only question for consideration before this Court
is whether a victim can be kept in a protective home
against her wishes.
This issue has time and again been considered and
settled by this Court in catena of judgements.
In Kalyani Chowdhary Vs. State of U.P., 1978
Cr.L.J. 1003, a Division Bench of this Court has held that no
person can be kept in the protective home unless she is
required to be kept there either in pursuance of the
Suppression of Immoral Traffic and Women and Girls Act,
or under some other law permitting her detention in such a
home. It is admitted that the case does not fall under this
Act, no other law has been referred to. In such cases, the
question of minority is irrelevant as even a minor cannot be
detained against her will or at the will of her father in a
In Pushpa Devi alias Rajwanti Vs. State of U.P.
(1995)1 JIC 189, this Court has held that in any event, the
question of age is not very material in the petition of the
nature of Habeas Corpus as even a minor has a right to
keep her person and even the parents cannot compel the
detention of a minor against her will unless there is some
other reason for it.
Protection Home, Meerut and another, 1998 Cr.L.J.
654, a Division Bench of this Court after considering series
of judgement held that it is well settled view of this Court
that even a minor cannot be detained in Government
Protective Home against her wishes.
In Seema Devi alias Simran Kaur Vs. State of
Himachal Pradesh, 1998 (2) Crimes 168, the Himachal
Pradesh has held as under:
“There is no provision of law, which permits a
Court to give such a direction even in a case of
minors when it is against their will. Even if the
petitioner is only a minor aged about 15 years, her
wishes should be ascertained before placing her in
the custody of any person or institution. In this case,
she had categorically stated before the additional
chief judicial magistrate that she would not live with
her parents and she wanted to live with her husband
the 1st accused in the case. The additional chief
judicial magistrate should have given credence to her
wish and only directed her custody to be with the 1st
accused and not with the Nari Niketan.”
A Division Bench of this Court after considering the
provisions of the Juvenile Justice (Care and Protection of
Children) Act, 2015 as well as the law laid down by various
Court has referred the following question to Hon’ble the
Chief Justice for being decided by the Larger Bench of this
"(1) xxxxxxxxxxxxxx
(3) Under the Scheme of the Juvenile Justice (Care
and Protection of Children) Act, 2015, the welfare
and safety of child in need of care and protection is
the legal responsibility of the Board/Child Welfare
Committee and as such, the proposition that even a
minor cannot be sent to Women Protection
Home against his/her wishes, is legally valid or it
requires a modified approach in consonance with the
object of the Act ?"
The Larger Bench of this Court in the case of Km.
Rachna and another Vs. State of U.P., AIR 2021 All 109
(FB) after considering plethora of judgements of this Court
as well as other High Court, has answered the question in
the following words:
“Under the J.J. Act, the welfare and safety
of child in need of care and protection is the
legal responsibility of the Board/Child Welfare
Committee and the Magistrate/ Committee
must give credence to her wishes. As per
Section 37 of the J.J. Act the Committee, on
being satisfied through the inquiry that the
child before the Committee is a child in need of
care and protection, may, on consideration of
Social Investigation Report submitted by Child
Welfare Officer and taking into account the
child's wishes in case the child is sufficiently
mature to take a view, pass one or more of the
orders mentioned in Section 37 (1) (a) to (h).
In view of the verbose discussion as well as
considering the statements made by the victim and her
mother, this Court feels it appropriate in the interest of
justice to hand over the custody of the victim to her mother.
Accordingly, impugned order dated 24.1.2022 passed
by the Child Welfare Committee, Kasganj is hereby set
aside. The revision is allowed.
The victim is given in the custody of her mother
(second revisionist) with the condition that whenever
personal appearance of the victim is required before the
court concerned in case No. 307 of 2021, under Section
363, 366 IPC, police station Patiyali, district Kasganj, she
shall produce her in court.
Location: High Court of Judicature at | The Allahabad High Court has observed that even a minor has a right to keep her person and even the parents cannot compel the detention of a minor against her will unless there is some other reason for it.The bench of Justice Sanjay Kumar Singh observed thus while granting the custody of minor victim (in connection with a case under Sections 363 and 366 IPC) to her mother after ascertaining...
The Allahabad High Court has observed that even a minor has a right to keep her person and even the parents cannot compel the detention of a minor against her will unless there is some other reason for it.
The bench of Justice Sanjay Kumar Singh observed thus while granting the custody of minor victim (in connection with a case under Sections 363 and 366 IPC) to her mother after ascertaining the minor's wishes.
The case in brief
Essentially, the mother of 'X' (victim) lodged the FIR under Sections 363 and 366 IPC in respect of her missing daughter. During the investigation, the victim was recovered from a Railway Station in Kasganj and she was produced before the Child Welfare Committee, Kasganj.
Her statement was recorded, in which she expressed her desire to go with her mother and also refused for her medical examination, but the Child Welfare Committee, Kasganj, instead of giving the custody of the victim 'X' to her mother, sent her to Rajkiya Bal Grih (Balika).
Therefore, the Mother moved the instant revision plea challenging the order passed by the Child Welfare Committee, Kasganj. Further, she also sought the custody of the minor girl.
Before the High Court too, the victim expressed her desire to go with her mother and the mother was also willing to keep the victim with her. In view of this, the only question for consideration before the Court was thus: whether a victim can be kept in a protective home against her wishes.
To answer the question, the Court took into account the catena of judgments of the Allahabad High Court to conclude that the question of the minority is irrelevant as even a minor cannot be detained against her will or at the will of her father in a Protective Home.
Further, the Court also referred to the Larger Bench ruling of the HC in the case of Km. Rachna and another Vs. State of U.P., AIR 2021 All 109 (FB), WHEREIN, after considering a plethora of judgments of the High Court as well as other High Court, had answered the question in the following words:
"Under the J.J. Act, the welfare and safety of child in need of care and protection is the legal responsibility of the Board/Child Welfare Committee and the Magistrate/ Committee must give credence to her wishes. As per Section 37 of the J.J. Act the Committee, on 6 being satisfied through the inquiry that the child before the Committee is a child in need of care and protection, may, on consideration of Social Investigation Report submitted by Child Welfare Officer and taking into account the child's wishes in case the child is sufficiently mature to take a view, pass one or more of the orders mentioned in Section 37 (1) (a) to (h)."
In view of this, taking into account the statements made by the victim and her mother, the Court directed to hand over the custody of the victim to her mother. Accordingly, the impugned order passed by the Child Welfare Committee, Kasganj was set aside and the revision was allowed.
However, the Court directed that whenever the personal appearance of the victim would be required before the court concerned, she shall be produced by the mother in court.
Case title - X(Minor) And Another v. State Of U.P. And 2 Others [CRIMINAL REVISION No. - 1714 of 2022] |
Matter taken up in the revised list. No one appears on behalf of the revisionist.
Notice was issued to the opposite party no. 2 vide order dated 11.5.2005. As per
office report dated 01.8.2005, it is apparent that notice has been duly served
personally on the opposite party no. 2.
No one appears on behalf of the opposite party no. 2 even when the matter has
been taken up in the revised list. Service of notice upon the opposite party no. 2
is thus sufficient.
Sri Ankit Srivastava, learned State counsel is present.
This revision is of year 2005. This Court, therefore, deems it fit to proceed in the
matter on the basis of the record with the assistance of the learned State counsel.
The present criminal revision under Section 397/401 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as "Cr.P.C.") has been filed before this
"It is, therefore, most respectfully prayed that this Hon'ble Court may graciously
be pleased to allow this revision and modify the judgement and order dated
1.4.2005 passed by Additional Sessions Judge (Court No. 9) Aligarh in Crl.
Revision No. 797 of 2002 Yogesh Gautam vs. State of U.P. and other, to the
extent of Rs. 1,000/- be granted to the son of Revisionist as per judgement and
order dated 31.8.2002 passed by the trial court; otherwise the revisionist as well
as her son shall suffer irreparable loss.
It is further prayed that this Hon'ble Court may also be pleased to stay the effect
and operation of the impugned judgement and order dated 1.4.2005 passed by
Addl. Sessions Judge (Court No. 9) Aligarh in Crl. Revision No. 797 of 2002,
Yogesh Gautam vs. State of U.P. and others, during the pendency of present
revision before this Hon'ble Court so that justice may be done."
Heard Sri Ankit Srivastava, learned State counsel and perused the material on
record including the impugned order.
Vide order dated 1.4.2005 the revisional court has modified the order dated
31.8.2002 to the extent that Rs. 1000/- per month be given to the revisionist and
Rs. 400/- per month be given to her minor children from the date of order.
The view as taken by the revisional court of granting Rs.1000/- per month to the
revisionist and Rs. 400/- to her minor children the date of order is illegal. The
Apex Court in the Case of Rajnesh Vs. Neha and another : Criminal Appeal
No. 730 of 2020 (Arising out of SLP (Crl.) 9503 of 2018) decided on
November 4, 2020 : 2020 SCC Online SC 903, in para-10, has held that the
maintenance has to be awarded from the date of application. It has held as
There is no provision in the HMA with respect to the date from which an Order
of maintenance may be made effective. Similarly, Section 12 of the D.V. Act,
does not provide the date from which the maintenance is to be awarded.
Section 125(2) Cr.P.C. is the only statutory provision which provides that the
Magistrate may award maintenance either from the date of the order, or from
the date of application. [K. Sivaram vs. K. Mangalamba and others: 1989(1)
In the absence of a uniform regime, there is a vast variance in the practice
adopted by the Family Courts in the country, with respect to the date from which
maintenance must be awarded. The divergent views taken by the Family Courts
are : first, from the date on which the application for maintenance was filed;
second, the date of the order granting maintenance; third, the date on which the
summons was served upon the respondent.
The view that maintenance ought to be granted from the date when the
application was made, is based on the rationale that the primary object of
maintenance laws is to protect a deserted wife and dependant children from
destitution and vagrancy. If maintenance is not paid from the date of
application, the party seeking maintenance would be deprived of sustenance,
owing to the time taken for disposal of the application, which often runs into
several years.
The Orissa High Court in Susmita Mohanty v Rabindra Nath Sahu, 1996(I)
OLR 361 held that the legislature intended to provide a summary, quick and
comparatively inexpensive remedy to the neglected person. Where a litigation is
prolonged, either on account of the conduct of the opposite party, or due to the
heavy docket in Courts, or for unavoidable reasons, it would be unjust and
contrary to the object of the provision, to provide maintenance from the date of
the order.
In Kanhu Charan Jena v. Smt. Nirmala Jena, 2001 Cri L.J. 879, the Orissa High
Court was considering an application u/S. 125 Cr.P.C., wherein it was held that
even though the decision to award maintenance either from the date of
application, or from the date of order, was within the discretion of the Court, it
would be appropriate to grant maintenance from the date of application. This
was followed in Arun Kumar Nayak v Urmila Jena, (2010) 93 AIC 726 (Ori)
wherein it was reiterated that dependents were entitled to receive maintenance
from the date of application.
The Madhya Pradesh High Court in Krishna Jain v Dharam Raj Jain, 1993 (2)
MPJR 63 held that a wife may set up a claim for maintenance to be granted
from the date of application, and the husband may deny it. In such cases, the
Court may frame an issue, and decide the same based on evidence led by
parties. The view that the "normal rule" was to grant maintenance from the date
of order, and the exception was to grant maintenance from the date of
application, would be to insert something more in Section 125(2)Cr.P.C., which
the Legislature did not intend. Reasons must be recorded in both cases. i.e.
when maintenance is awarded from the date of application, or when it is
awarded from the date of order.
The law governing payment of maintenance u/S. 125 Cr.P.C. from the date of
application, was extended to HAMA by the Allahabad High Court in Ganga
Prasad Srivastava v Additional District Judge, Gonda & Ors.51 The Court held
that the date of application should always be regarded as the starting point for
payment of maintenance. The Court was considering a suit for maintenance u/S.
18 of HAMA, wherein the Civil Judge directed that maintenance be paid from
the date of judgment. The High Court held that the normal inference should be
that the order of maintenance would be effective from the date of application. A
party seeking maintenance would otherwise be deprived of maintenance due to
the delay in disposal of the application, which may arise due to paucity of time
of the Court, or on account of the conduct of one of the parties. In this case,
there was a delay of seven years in disposing of the suit, and the wife could not
be made to starve till such time. The wife was held to be entitled to maintenance
from the date of application / suit.
The Delhi High Court in Lavlesh Shukla v Rukmani, Crl. Rev. Pet. No.
851/2019, decided by the Delhi High Court vide order dated 29.11.2019, held
that where the wife is unemployed and is incurring expenses towards
maintaining herself and the minor child / children, she is entitled to receive
maintenance from the date of application. Maintenance is awarded to a wife to
overcome the financial crunch, which occurs on account of her separation from
her husband. It is neither a matter of favour to the wife, nor any charity done by
the husband.
The second view that maintenance ought to be awarded from the date of order is
based on the premise that the general rule is to award maintenance from the
date of order, and grant of maintenance from the date of application must be the
exception. The foundation of this view is based on the interpretation of Section
"(2) Any such allowance for the maintenance or interim maintenance and
expenses for proceeding shall be payable from the date of the order, or, if so
ordered, from the date of the application for maintenance or interim
maintenance and expenses of proceeding, as the case may be."
The words "or, if so ordered" in Section 125 has been interpreted to mean that
where the court is awarding maintenance from the date of application, special
reasons ought to be recorded. [Bina Devi & Ors. v State of Uttar Pradesh &
Ors. (2010) 69 ACC 19]In Bina Devi v State of U.P., (2010) 69 ACC 19, the
Allahabad High Court on an interpretation of S.125(2) of the Cr.P.C. held that
when maintenance is directed to be paid from the date of application, the Court
must record reasons. If the order is silent, it will be effective from the date of the
order, for which reasons need not be recorded. The Court held that Section
125(2) Cr.P.C. is prima facie clear that maintenance shall be payable from the
date of the order.
The Madhya Pradesh High Court in Amit Verma v Sangeeta Verma & Ors.
C.R.R. No. 3542/2019 decided by the Madhya Pradesh High Court vide Order
dated 08.1.2020, directed that maintenance ought to be granted from the date of
the order.
The third view followed by some Courts is that maintenance ought to be granted
from the date of service of summons upon the respondent.
The Kerala High Court in S. Radhakumari v K.M.K. Nair, AIR 1983 Ker 139,
was considering an application for interim maintenance preferred by the wife in
divorce proceedings filed by the husband. The High Court held that
maintenance must be awarded to the wife from the date on which summons were
served in the main divorce petition. The Court relied upon the judgment of the
Calcutta High Court in Samir Banerjee v Sujata Banerjee, 70 CWN 633, and
held that Section 24 of the HMA does not contain any provision that
maintenance must be awarded from a specific date. The Court may, in exercise
of its discretion, award maintenance from the date of service of summons.
The Orissa High Court in Gouri Das v Pradyumna Kumar Das, 1986 (II) OLR
44, was considering an application for interim maintenance filed u/S. 24 HMA
by the wife, in a divorce petition instituted by the husband. The Court held that
the ordinary rule is to award maintenance from the date of service of summons.
It was held that in cases where the applicant in the maintenance petition is also
the petitioner in the divorce petition, maintenance becomes payable from the
date when summons is served upon the respondent in the main proceeding.
In Kalpana Das v Sarat Kumar Das, AIR 2009 Ori 133, the Orissa High Court
held that the wife was entitled to maintenance from the date when the husband
entered appearance. The Court was considering an application for interim
maintenance u/S. 24 HMA in a petition for restitution of conjugal rights filed by
the wife. The Family Court awarded interim maintenance to the wife and minor
child from the date of the order. In an appeal filed by the wife and minor child
seeking maintenance from the date of application, the High Court held that the
Family Court had failed to assign any reasons in support of its order, and
"9. …Learned Judge. Family Court has not assigned any reason as to why he
passed the order of interim maintenance w.e.f. the date of order. When
admittedly the parties are living separately and prima facie it appears that the
Petitioners have no independent source of income, therefore, in our view order
should have been passed for payment of interim maintenance from the date of
The judgments hereinabove reveal the divergent views of different High Courts
on the date from which maintenance must be awarded.
Even though a judicial discretion is conferred upon the Court to grant
maintenance either from the date of application or from the date of the order in
S. 125(2) Cr.P.C., it would be appropriate to grant maintenance from the date of
application in all cases, including Section 125 Cr.P.C. In the practical working
of the provisions relating to maintenance, we find that there is significant delay
in disposal of the applications for interim maintenance for years on end. It
would therefore be in the interests of justice and fair play that maintenance is
awarded from the date of the application.
In Shail Kumari Devi and Ors. v Krishnan Bhagwan Pathak, (2008) 9 SCC 632,
this Court held that the entitlement of maintenance should not be left to the
uncertain date of disposal of the case. The enormous delay in disposal of
proceedings justifies the award of maintenance from the date of application. In
Bhuwan Mohan Singh v Meena, (2015) 6 SCC 353, this Court held that
repetitive adjournments sought by the husband in that case resulted in delay of 9
years in the adjudication of the case. The delay in adjudication was not only
against human rights, but also against the basic embodiment of dignity of an
individual. The delay in the conduct of the proceedings would require grant of
maintenance to date back to the date of application.
The rationale of granting maintenance from the date of application finds its
roots in the object of enacting maintenance legislations, so as to enable the wife
to overcome the financial crunch which occurs on separation from the husband.
Financial constraints of a dependant spouse hampers their capacity to be
effectively represented before the Court. In order to prevent a dependant from
being reduced to destitution, it is necessary that maintenance is awarded from
the date on which the application for maintenance is filed before the concerned
In Badshah v Urmila Badshah Godse (2014) 1 SCC 188, the Supreme Court was
considering the interpretation of Section 125 Cr.P.C. The Court held :
"13.3. …purposive interpretation needs to be given to the provisions of Section
125 CrPC. While dealing with the application of a destitute wife or hapless
children or parents under this provision, the Court is dealing with the
marginalised sections of the society. The purpose is to achieve "social justice"
which is the constitutional vision, enshrined in the Preamble of the Constitution
of India. The Preamble to the Constitution of India clearly signals that we have
chosen the democratic path under the rule of law to achieve the goal of securing
for all its citizens, justice, liberty, equality and fraternity. It specifically
highlights achieving their social justice. Therefore, it becomes the bounden duty
of the courts to advance the cause of the social justice. While giving
interpretation to a particular provision, the court is supposed to bridge the gap
It has therefore become necessary to issue directions 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 the concerned Court. 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."
Looking to the facts of the case and the the legal proposition as laid down by the
Apex Court in the case of Rajnesh (Supra), the present criminal revision is
partly allowed.
The judgement and order dated 1.4.2005 passed by Additional Sessions Judge
(Court No. 9) Aligarh in Crl. Revision No. 797 of 2002 Yogesh Gautam vs. State
of U.P. and other, is set aside, in so far as it issues a direction for payment of
maintenance from the date of order.
The opposite party no. 2/Yogesh Gautam is directed to pay a sum of Rs.1000/-
per month to the revisionist and Rs. 400/- to her minor children, from the date of
application. The payment shall be done within a period of six months. The
arrears of payment to be paid within six months from today in three equal
instalment, the first instalment of which shall be paid within a period of one
month from today and the remaining two instalment shall be paid within equally
divided in the remaining time.
Lower court record be sent to the court concerned forthwith.
Office is directed to communicate this Court to the court concerned within two
weeks from today. | Referring to the Apex Court's ruling in the case of Rajnesh v. Neha and another, (2021) 2 SCC 324, the Allahabad High Court has observed that the maintenance has to be awarded from the date of application and not from the date of the order.The Bench of Justice Samit Gopal observed thus as it opined that the order of the revisional court in granting maintenance to a lady and her minor...
Referring to the Apex Court's ruling in the case of Rajnesh v. Neha and another, (2021) 2 SCC 324, the Allahabad High Court has observed that the maintenance has to be awarded from the date of application and not from the date of the order.
The Bench of Justice Samit Gopal observed thus as it opined that the order of the revisional court in granting maintenance to a lady and her minor children from the date of the order was illegal.
Essentially, the Court was hearing the revision plea filed in the year 2005 seeking modification of the judgment and order dated April 1, 2005, passed by the Additional Sessions Judge, Aligarh.
The revisional court had modified the order dated 31.8.2002 to the extent that Rs. 1000/- per month be given to the revisionist and Rs. 400/- per month be given to her minor children from the date of order.
In view of this, the Court observed that the view as taken by the revisional court of granting Rs.1000/- per month to the revisionist and Rs. 400/- to her minor children from the date of the order was illegal.
In this regard, the Court, at the outset, referred to the ruling of the Apex Court in the case of Rajnesh Vs. Neha and another, wherein it was held that the maintenance has to be awarded from the date of application.
Further, in view of the law laid down by the Apex Court in the case of Rajnesh, the present criminal revision was partly allowed and the judgement and order passed by Additional Sessions Judge, Aligarh was set aside, in so far as it issued a direction for payment of maintenance from the date of order.
The opposite party no. 2/Yogesh Gautam was directed to pay a sum of Rs.1000/- per month to the revisionist/wife and Rs. 400/- to her minor children, from the date of application.
The Court directed that the payment shall be done within a period of six months and the arrears of payment to be paid within six months in three equal instalment, the first instalment of which shall be paid within a period of one month and the remaining two instalment shall be paid within equally divided in the remaining time.
In related news, the Jharkhand High Court 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. |
1. The petitioner by way of the present petition under
Article 226 of the Constitution of India has prayed for the
following reliefs:
(c) To allow this petition by issuing writ of mandamus or
any appropriate writ, order directed by directing respondents
that the petitioner is possessing the educational qualification
as required under Bar Council of India Legal Education
Rules, 2008 for admission LLB Course and is petitioner is
qualified to pursue the 3 year LLB Course for which he has
already got admission at Navyug College, Virpar.
(c/1) To hold and declare and direct that the petitioner is
possessing the educational qualification as required by Bar
Council of India Legal Education Rules, 2008 and on that
basis petitioner is eligible for 3 years course of Bachelors of
Law and further direct respondent No. 1 to 3 to admit
petitioner in 3 years L.L.B Course;
(d) Pending hearing a final disposal of the present petition,
this Hon’ble Court may grant interim relief by directing
respondent no. 1 and 2 to immediately reconsider the case of
petitioner in view of Bar Council of India Legal Education
Rules, 2008 and permit petitioner to attend classes.
(e) To grant costs of this petition to the petitioner and to
grant any other appropriate and just relief/s.”
2. The brief facts as stated by the petitioner are stated
2.1. The petitioner has passed B.Com examination from
G.J. Sheth, Morbi college in general category. The petitioner
had appeared for 3rd B.Com examination conducted in March,
2007 in which out of total 7 subjects, petitioner had failed in
2 subjects, viz., Statistics and Management Accounting. The
petitioner had appeared in re-examination conducted by the
University in March, 2008 for the aforesaid 2 subjects, viz.
Statistics and Management Accounting and had secured result
of ‘pass class’ and secured 45.57%.
2.2. The petitioner intending to pursue 3 years Bachelor
of Law (L.L.B.) course, had submitted an application dated
03.09.2020 before the respondent University seeking admission.
The petitioner had paid fees for both the semesters and had
appeared for internal examination conducted by the respondent
no.3 – college. The respondent no.3 – college after period of
some months, rejected the application of the petitioner stating
that the petitioner had given 2 try in B.Com and after final
examination of semester of semester refunded the fees paid by
the petitioner. The petitioner addressed a letter to the
respondent University on 25.06.2021 intimating them about the
aforesaid facts. The university replied to the said
communication dated 25.06.2021 of the petitioner, by letter
dated 03.07.2021 stating that since the petitioner has given 2
try in 3rd year B.Com and was declared pass with ‘Exemption’.
Therefore, the percentage cannot be counted and as per the
Rules of Bar Counsel of India, student of Open/General
category are required to secure 45%, O.B.C. category 42% and
S.T. category 40% minimum to secure admission and since the
petitioner belonging to Open/ General category has so called
not secured 45% is ineligible to secure admission. It was
further informed that the admission process is under provision
of Bar Council of India and University.
2.3. The petitioner wrote a letter to the Chairman /
Secretary, Bar Council of Gujarat intimating them about the
aforesaid facts by letter dated 22.07.2021 and further requested
to do the needful, if found eligible for course of 3 years L.L.B.
The respondent No.4 – Bar Council of Gujarat by
communication dated 04.08.2021 stated that the petitioner has
secured 45.57% and considering the result of examination of
March, 2007 and March, 2008, and therefore, as per Rule-7 of
Bar Council of India Education Rules, 2008, and therefore, as
per Rule-7, the petitioner is eligible for getting admission in
course of Bachelors of Law course. The petitioner further wrote
a letter to the respondent-University on 07.08.2021 intimating
with regard to the letter dated 04.08.2021 addressed by the
respondent no.4 - Bar Council of Gujarat.
2.4. The respondent – University by communication
dated 08.10.2021 informed the petitioner and reiterated that
any student who has appeared in examination and has given
two attempts, then in that case, the percentage cannot be
calculated on basis of both the mark-sheets and as per the
Rule of Bar Council of India, a student belonging to Open /
General category has to have minimum 45% to secure
admission in 3 years L.L.B. course and therefore, the petitioner
is not eligible for getting admission. It was further impounded
that mark-sheet issued under Ordinance-154(d) exemptions.
3. Heard Mr. Kuldip K. Acharya, learned counsel appearing
for the petitioner.
3.1. Mr. Acharya, learned counsel submitted that the
respondent nos. 1 and 2 are statutory authority and they are
bound to follow the Rule of law. The exclusion of petitioner
on the basis of two attempts and to be treated as ‘pass class’
though the Bar Council of India is considering the total marks
obtained, irrespective of how many attempts made in passing
of such exams for the purpose of admission in L.L.B. course,
having given ‘pass class’ result is arbitrary and irrational.
3.2. Mr. Acharya, learned counsel submitted that
reliance placed by the respondent University on Ordinance-
154(d) does not came exclusive of marks in counting
percentage, even otherwise, there is no rational in excluding
the students having passed in 2 nd attempt and counting marks
secured in the examination as of individual subjects.
3.3. Mr. Acharya, learned counsel submitted that the Bar
Council of India is a statutory authority and the respondent
no.2 is bound to frame its Rules and Act for L.L.B. course in
consonance with the Rules and Regulations and norms of the
Bar Council of India.
3.4. Mr. Acharya, learned counsel orally submitted that
the admission once granted cannot be retracted in absence of
any suppression.
3.5. Mr. Acharya, learned counsel placed reliance on the
following authorities:
4. Heard Mr. Shivang Thacker, learned counsel
appearing for the respondent no.2 – university.
4.1. Mr. Shivang Thacker, learned counsel has relied on
the affidavit-in-reply filed by the respondent-University reads
“4. I say and submit that the petitioner by filing
the present petition has sought direction from this
Hon’ble Court to hold that petitioner is possessing the
educational qualification as required under Bar
Council of India Legal Education Rules and he is
qualified to pursue the 3 year LLB Course and has
sought the interim reliefs to reconsider the case of
the petitioner.
5. I say that the present petitioner has
completed B.Com. Course in Saurashtra University in
the year March, 2008 in pass class. I say that the
present petitioner appeared in 3rd year B.Com
examination held in March, 2007 and was declared
failed in two subjects. I say that petitioner appeared
again only in two subjects in which he was declared
fail and claimed exemption in other subjects for
which he was declared passed. I say that petitioner
filed up the examination form only for two subject in
which petitioner declared failed and petitioner
claimed exemption in remaining subjects. I say that
again the petitioner appeared in two papers (Subjects)
in 3rd year B.Com examination held in March 2008. I
say that the petitioner had not cleared 3rd B.Com.
Examination in first trial and subsequently petitioner
appeared in examination held in March, 2008, which
was his second trial and in which petitioner claimed
exemption marks and cleared passed in two remaining
all the subjects in March, 2008 in which petitioner
declared fail in March-2007 exam.
6. I say that any student who appeared in the
examination first time and not succeed/pass with all
the subjects but appeared again the examination with
obtain exemption marks in any of the subject and
decided not to appear again in the same subject
where he/she has got exemption then his/her final
result of the examination after clearing all the
subjects he result will be in pass class and he/she is
not entitled for any percentage as per the Ordinance
of the university. I say that as per the provisions
contained in Ordinance No.154 of The Saurashtra
University Act, a (student) who has passed the
examination after getting the benefit of exemption
marks in any subject, then after clearing all the
subjects he/she will be considered as passed in
passing class and percentage cannot be counted
because he/she has not cleared the examination in
one attempt and he/she had got the benefit of the
exemption marks and cleared the examination. I say
that in the mark-sheet of the petitioner in result
Column at page 11 of the petition clearly indicate
that pass class.
7. I say that petitioner has not passed in first
trial in 3rd year B.Com., examination and claimed
benefit of the exemption marks and therefore, as per
the Ordinance No. 154 of Saurashtra University Act,
then the percentage of the petitioner cannot be
counted and only is given pass class. I reproduce
relevant part of the Ordinance No.154 of The
“Except as herein otherwise provided, in a subject or
subjects in which identical papers (and practical tests)
are prescribed for another examination, shall at his
option, be entitled to exemption at the other
examination from such subject, provided always that
the standard attained at the original examination, is
not lower than that required at the other
examination. Candidates so exempted shall not be
eligible for classed or for University awards. A
candidate who has passed the examination after
obtaining the benefit of condonation shall be deemed
to have passed in individual subjects of the
examination with minimum percentage of the marks
required for passing such subjects”.
I say that passing standard of the 3 rd Year B.Com is
36% percentage. As per the above quoted Ordinance
154, petitioner has passed the 3 rd year Examination
with pass class that is 36 % percentage and not 45.57
% percentage as claimed by the petitioner. In view of
the aforesaid ordinance, it cannot be said that the
petitioner has obtained the qualifying marks for
getting admission in LL.B. as prescribed by the Bar
Council of Gujarat which is 45%. Therefore, petitioner
is not eligible for get admission in the LL.B. Course
because he is not having 45% marks in T.Y.B.Com.
Petitioner passed 3rd year examination in pass class as
stated above and pass class percentage cannot be
considered as 45.57% as claimed by the petitioner. He
is only having passing standard of 36% percentage.
8. I say that the similar issue came up before
this Hon’ble High Court in the case of Dhamani
Ramesh Holaram in SCA No. 8554 of 2013 whereby
the petitioner who had cleared the 3rd year B.Com
with pass class after multiple attempts and was
denied the admission in the First Year LL.B
considering the provisions of Ordinance 154 of the
Saurashtra University Act. I say that the Hon’ble
Court after considering the provisions of the
Saurashtra University Act has dismissed the petition
filed by the petitioner and has held in view of the
provisions of the Ordinance 154 of the University Act.
Annexed hereto and marked as “Annexure-R1” is the
copy of the Judgment passed in SCA NO. 8554 of
9. I say that, the in similar set of facts the
issue regarding the admission in LL.M Course where a
student had cleared LL.B examination after attempts
and secured pass class came up for consideration
before the Hon’ble High Court and the Hon’ble High
Court in SCA No. 17933 of 2014 has held such
student is not entitle for admission. I say that the
said Judgement is confirmed by the Hon’ble Division
Bench in LPA No. 51 of 2015. Annexed hereto and
marked as “Annexure-R2” is the copies of the said
4.2. Relying on the aforesaid submissions, Mr. Thacker,
learned submitted that the petitioner has prayed for a direction
from this Court to hold that the petitioner is possessing the
educational qualification as required under the Bar Council of
India Legal Education Rules, 2008 for admission LLB course
and is qualified to pursue the 3 year LLB course and further
sought relief to reconsider the case of the petitioner may not
be granted in view of the fact that the case of the petitioner
falls under the provisions of Ordinance No. 154 of the
Saurashtra University Act and as the said Ordinance, once a
candidate seeks exemption, the candidate shall not be eligible
for class or for university awards. In the facts of the present
case, the petitioner having availed exemption under the
provision of Ordinance- 154, the petitioner would be held to
be ineligible to pursue the LLB course, having cleared 3 rd year
B.Com with ‘pass class’. The petitioner only having pass class
i.e. 36% and not 45.57%, and therefore, no error could be said
to have been committed by the respondent-University.
4.3. Mr. Thacker, learned counsel has placed reliance on
the following authorities:
(I) Special Civil Application No. 8554 of 2013 order
dated 04.03.2015.
(II) Special Civil Application No. 17933 of 2014 order
dated 09.01.2015.
(III) Letters Patent Appeal No. 51 of 2015 dated
5. Heard Mr. Kuldip Acharya, learned counsel
appearing for the petitioner, Mr. Shivang A. Thacker, learned
counsel for Mr. A.R. Thacker, learned counsel for the
respondent nos.1 and 2 – Saurashtra University, Though served
respondent No.3 has chosen not to appear, respondent no.4 has
unserved, Mr. Saurabh J. Mehta, learned counsel appearing for
the respondent no.5 and Mr. Ayaan Patel, learned Assistant
Government Pleader appearing for the respondent No.6 – State.
6. It appears that the petitioner completed B.Com from
Saurashtra University in the year March, 2008 as disclosed
from the mark-sheet in ‘pass class’. The petitioner appeared in
3rd year B.Com held in March, 2007 and was declared ‘fail’ in
2 subjects, viz. Statistics and Management Accounting. The
petitioner again appeared only in 2 subjects, in which he was
declare failed and claimed exemption in other subjects, for
which he was declared ‘pass’. The petitioner filled-up the form
only for 2 subjects, in which petitioner was declared failed and
claimed ‘exemption’ in the remaining subjects. The petitioner
appeared in 2 papers /subjects in 3rd year B.Com. Examination
held in March, 2008. The petitioner had not cleared 3 rd year
B.Com. Examination in 1st try and subsequently, appeared in
the examination held in March, 2008 which was his 2 nd
trial/attempt, in which petitioner had claimed ‘exemption’ in
other subjects and cleared remaining 2 subjects in March,
2008, in which petitioner was failed in March, 2007. It
appears that the respondent no.3 – College accepted the form
duly filed by the petitioner on 03.09.2020 and also accepted
the fees paid by the petitioner to appear in the internal
examination conducted by the respondent no.3-college. The
respondent no.3 – college however refunded the fees duly paid
by the petitioner and rejected the admission of the petitioner
by the said communication dated 24.06.2021 (Annexure-C
page-12-13). The said communication reads thus:
Subject : In reference to your letter dtd. 03/06/2021
You have applied on 03/09/2021 for the admission in
Navyug L.L.B. College, in reference to which your name was
kept for enrollment and registration in Saurashtra University.
In which, the admission was given to you in L.L.B. according
to the mark-sheet of B.Com. in which you have secured 45 %.
But according to the admission rules of B.C.I. and University,
the necessary qualification according to the first mark-sheet is
45%, where as yours is 45.57 % which is the sum of two
mark-sheets. Hence, according to the aforementioned rules of
admission, you does not come in the criteria to fulfill the first
primary rule of admission. Hence, your enrollment was kept in
the Defect list in the Registration process. But, as you deos
not posses the eligibility for admission, hence, the University
has kept our name in the Defect list, about which we have
informed you through telephone.
Your admission was kept along with the admission process
in Saurashtra Univesity, but that process have been delayed for six
months as the admission process have been postponed due to
some reasons by B.C.I. and Saurashtra Univesity and your
admission has been declared as defective. We have immediately
given telephonic information to you regarding the same. Hence, it
is informed to cancel your admission and take back your fees
which was paid by you.
published by the University Virpar (Morbi)
2 38 Pandya Not Eligible Not Eligible – 2 trie in Bcom Fail (42%
Madhusudan Open Category) & Age limit Affidavit
Gunvantray not attached.
7. It appears that the petitioner addressed a letter to
the respondent University by communication dated 25.06.2021.
In response to the same, the University vide communication
dated 03.07.2021 replied to the petitioner. The same reads
University campus, University road, rajkot-360005
Phone no.(0281)2576511 Ext no.707-710/ Fax no. (0281) 2586411
email:exam06@sauuni.ac.in
Subject:Regarding cancellation of admission
Reference: Your application dated 25/06/2021
Apropos the aforementioned subject, it is to state that as per
your referred application, you had received the degree of B.Com in
yearly system and you had 2 trials in third year of B.Com. You
were declared pass with Exemption, hence percentage can not be
considered in it. As per the rules of the Bar Council of India, 45%
for the Open category, 42% for O.B.C. category and 40% for S.C./
S.T. categories have been fixed. Since you belong to open
category, you must have at least 45%, hence you are not eligible
to get admission in Semester-1 of LL.B.
Moreover, you were given admission by the college in the
year 2020. Thereafter, for enlistment by the University, the portal
of the concerned college is to be opened, the entry of the form is
done by the college and the file is to be submitted at the
University. Moreover, after the decision from University authority
and Bar Council of India, it is to be decided whether to do
enlistment of the college in which you got admission. Hence, after
analysis of the form submitted by the college, your enlistment is
not generated because you were not found eligible for Semester-1
of LL.B. and you are informed late in that regard.
Yours faithfully,
8. The petitioner had also addressed a communication
to the Bar Council of Gujarat on 22.07.2021. The relevant para
of the said communication dated 22.07.2021 reads thus:
“….I would like to state in detail before you that I have graduated
from Saurashtra University, Rajkot. I failed in one subject in T.Y.
B.Com due to some reasons. I appeared in the examination for the
said subject again and passed it. Therefore, if we calculate the
marks of two marksheets for T.Y. B.Com, it is 45.57%. The copies
of both the said marksheets are attached herewith the application.
Thereafter, when I applied for the L.L.B. course, no affidavit was
demanded from me. Thereafter, when the college received a query
from the university, the college informed me that you will have to
submit an affidavit regarding age. I submitted it immediately. The
copy of the same is attached herewith.
Thereafter also, the college informed me that your admission has
not been confirmed yet. Therefore, when I asked the reason for the
same, I was told that you have not secured 45% marks, and
therefore your admission has been cancelled. Thereafter, I submitted
an application to the college that as per my marksheet, I have
45.57% marks and therefore do the needful. At that time, I was
told that, it has been informed by the university that the marks of
two marksheets cannot be considered as per the norms of the Bar
Council and therefore, you should know in this regard from the
university.
Thereafter, when I tried to know from the university by writing a
letter, they also replied that since you have passed with Exemption,
we cannot consider the total of both the marksheets as per the
rules of the Bar Council. The copies of the said letter and the reply
received from them are attached herewith. I request you to solve
this matter as early as possible.”
9. The Bar Council of Gujarat replied to the said letter
of the petitioner by communication dated 04.08.2021. The
E-mail: mail@barcouncilofgujarat.org
Website: www.barcouncilofgujarat.org
Subject: About getting admission in LL.B Course
With reference to the above noted subject, it is to state that I have
studied B.Com from Saurashtra University through Navyug Law College,
Virpar, Morbi, wherein if the marks are calculated as per the subjects in
March-2007 and March-2008, I have obtained 45.47% of marks.
Further as per Rule-7 of Chapter-II of the Bar Council of India Legal
Minimum Marks in qualifying examination for admission
Bar Council of India may from time to time, stipulate the
minimum percentage of marks not below 45% of the total
marks in case of general category applicants and 40% of
the total marks in case of SC and ST applicants, to be
obtained for the qualifying examination, such as +2
Examination in case of Integrated Five Years’ course or
Degree course in any discipline for Three years’ LL.B.
Course, for the purpose of applying for and getting
admitted into a Law Degree Program of any recognized
University in either of the streams:
Provided that such a minimum qualifying marks shall not
automatically entitle a person to get admission into an
institution but only shall entitle the person concerned to
fulfill other institutional criteria ontified by the institution
concerned or by the government concerned from time to
time to apply for admission.
Please be informed that, accordingly, you can get admission in LL.B.
10. In view of the aforesaid communication of the Bar
Council of Gujarat, the petitioner addressed a letter to the
respondent- University to consider the case of the petitioner in
accordance with the communication dated 04.08.2021 of the
Bar Council of Gujarat. The respondent- University once again
by communication dated 08.10.2021 reiterated the same, which
University campus, University road, Rajkot-360005
Phone no.(0281)2576511 Ext no.707-710/ Fax no. (0281) 2586411
email:exam06@sauuni.ac.in
Sub: To provide grounds for canceling admission to LL.B.
Ref.: (1) Your application dated 25/06/2021.
(2) Letter No : Exan Cell/866/2021 of this office dated
(3) Your application dated 07/08/2021
(4) Your application dated 14/09/2021
In connection with the aforesaid subject, in regrading with your
application at reference No.1 submitted due to not getting admission in
the three years LL.B course, a reply was given to you vide letter at
reference No.2 that, you have done your B.Com. degree in yearly system,
wherein your have two trials in third year. As you are passed with
Exemption, the same can not be considered in the percentages
calculation. As per the rule of the Bar Council of India, stipulated
percentages for the open category are 45%, for O.B.C. 42% and for S.C./
S.T. category it is 40%. As you are in open category, it is necessary to
have minimum 45%. Therefore, you are not eligible for the admission in
the LL.B. Semester-1. Therefore, you are not entitled to admission.
You enclosed the letter of Bar Council of Gujarat, dated
04/08/2021 with your letter at reference-3, it was stated in the same
that, you have 45.57 % and you can get admission in the LL.B. Course.
In regard with the same, you were informed in person that, if any
student at this University have passed any degree in yearly system and
he/she have two trials, then in such circumstances, percentages for the
same are not considered. Therefore, as per the rule of the Bar Council of
India for the eligibility for the Three Years LL.B., minimum 45% are
required for the open category. As you do not have the same, you are
not entitled to admission.
With regard to the mark sheet issued to you by the University for
the Three Years B.Com., kindly consider the Ordinance-154(d)
Exemptions, attached herewith.
Enclosure : Copy of Ordinance-154(d) Exemptions
““Except as herein otherwise provided, in a subject or subjects in which
identical papers (and practical tests) are prescribed for another
examination, shall at his option, be entitled to exemption at the other
examination from such subject, provided always that the standard
attained at the original examination, is not lower than that required at
the other examination. Candidates so exempted shall not be eligible for
classed or for University awards. A candidate who has passed the
examination after obtaining the benefit of condonation shall be deemed
to have passed in individual subjects of the examination with minimum
percentage of the marks required for passing such subjects”.
11. In Special Civil Application No. 8554 of 2013, the
aforesaid issue was considered by this Court vide oral
judgment dated 04.03.2015. The relevant para of the same
“8. Therefore, this Resolution clearly provides for the
situation where a student who has obtained the graduation
degree in more than one trial, then, in that case, the
percentage of marks may be calculated by totaling the
marks obtained in each paper at the time of clearing the
subject. However, Rule 7 of the Bar Council may not have
specifically provided. In any view of the matter, for the
purpose of admission O. 154 of the University would be
relevant which has also been quoted in the affidavit-in-
reply filed on behalf of respondent No.1 University. It has
been clearly contended that if the person has passed the
examination in more than one trial he would have the
benefit of exemptions in few papers but he would be
considered as having passed the examination with
minimum percentage of marks. Ordinance 154 refers to the
exemptions and it clearly mentions that the person would
be entitled to exemption at the other exams from the
other subjects. However, the standard attained at the
original examination is not lower than that required at the
other examination. It clearly provides,
“A candidate who has passed the examination after
obtaining the benefit of condonation shall be deemed to
have passed in individual subjects of the examination with
the minimum percentage of marks required for passing
such subjects.”
9. Therefore, in light of these clear provisions of the
Ordinance which hardly requires any further elaboration,
the case of the petitioner cannot be considered. It is
required to be mentioned that the Hon’ble Apex Court in
a judgment reported in (2013) 11 SCC 802 in the case of
Prayadarshini College of Computer Science & anr. v.
Manish Kumar & ors., has observed,
“15. It has to be kept in mind that every candidate
applying for a particular course in any college is expected
to go through the advertisement thoroughly including the
eligibility criteria prescribed for each course and after
fulfillment of the required conditions, state the correct
particulars in the application form failing which he/she
cannot claim any benefit for his/her own wrong.”
10. The Hon’ble Apex Court in a judgment reported in
(2003) 7 SCC 719 in the case of Regional Officer, CBSE v.
Ku. Sheena Peethambaran & ors. has observed and quoted
from the earlier judgment,
“We cannot by our fiat direct the University to disobey
the statute to which it owes its existence and the
regulations made by the University itself. We cannot
imagine anything more destructive of the rule of law than
a direction by the court to disobey the laws.”
11. Thus, while considering the aspect of eligibility with
minute details it is better to be left to the authority like
the University as an expert body and the court would
decline to interfere, in exercise of its discretionary
jurisdiction under Art. 226. Again, LL.B. is a professional
course and in order to have certain minimum standards if
the body like the University or the Bar Council have fixed
certain minimum standards, the same cannot be relaxed by
such interpretation so that a person who is not otherwise
qualified is permitted to join the course. Thus, when the
Ordinance of the University prescribes the eligibility, it
cannot be overlooked and the present petition cannot be
entertained.”
14. The following judgments are relied upon by the
(I) In the case of Sanatan Gauda University v/s.
Berhampur University reported in AIR 1990 SC 1075, the
Hon’ble Supreme Court in para-10 and 14 held thus:
"10. This is apart from the fact that I find that in the
present case the appellant while securing his admission in
the Law College had admittedly submitted his marks-sheet
along with the application for admission. The Law College
had admitted him. He had pursued his studies for two
years. The University had also granted him the admission
card for the Pre-Law and Intermediate Law examinations.
He was permitted to appear in the said examinations. He
was also admitted to the Final year of the course. It is
only at the stage of the declaration of his results of the
Pre-Law and Inter-Law examinations that the University
raised the objection to his so-called ineligibility to be
admitted to the Law course. The University is, therefore,
clearly estopped from refusing to declare the results of the
appellant's examination or from preventing him from
pursuing his final year course.”
“14. Mr. P.N. Misra, the learned counsel for the respond-
ent, contended that the University had informed the
Colleges about the necessary condition for admission to the
Law course which, it appears, was not respected by the
College. When the applications by the candidates for
sitting at the examination were forwarded by the College,
the University asked the Principal to send the marks of the
candidates for the purpose of verification. but the Principal
did not comply. The letters Annexures 'F' and 'G' to the
counter affidavit have been relied upon for the purpose.
The learned counsel pointed out that instead, the Principal
sent a letter Annexure '1' stating that the marks-list would
be sent in a few days for "your kind reference and
verification" which was never sent. The Principal wrongly
assured the University authorities that he had verified the
position and that all the candidates were eligible. In these
circum- stances, the argument is. that the appellant cannot
take advantage of the fact that the University allowed him
to appear at the examination. 1 am afraid, the stand of
the respondent cannot be accepted as correct. From the
letters of the University it is clear that it was not
depending upon the opinion of the Principal and had
decided to verify the situation for itself. In that situation it
cannot punish the student for the negligence of the
Principal or the University authorities. It is important to
appreciate that the appellant cannot be accused of making
any false statement or suppressing any relevant fact before
anybody. He had produced his marks-sheet before the
College authority with his application for admission, and
cannot be accused of any fraud or misrepresentation. The
interpretation of the rule on the basis of which the
University asserts that the appellant was not eligible for
admission is challenged by the appellant and is not
accepted by the College and my learned Brother accepts
the construction suggested by him as correct. In such a
situation even assuming the construction of the rule as
attempted by the University as correct, the Principal
cannot be condemned for recommending the candidature
of the appellant for the examination in question. It was
the bounden duty of the University to have scrutinized the
matter thoroughly before permitting the appellant to
appear at the examination and not having done so it
cannot refuse to publish his results.”
The aforesaid ratio is not applicable in the facts of the
present case, in view of the fact that as referred above, the
admission which was granted by the respondent no.3 college
stood cancelled by communication dated 24.06.2021 and fees
were also refunded to the petitioner and the University had
declined enrollment of the petitioner. In the case referred to
by the petitioner, the student/ candidate had undergone the
study for 2 years and was permitted by the University also to
appear in the University examination.
(II). In the case of Shri Krishna v/s. The Kurukshetra
University reported in AIR 1976 SC 376, the Hon’ble Supreme
Court in para-7 held thus:
“It appears from the averments made in the counter
affidavit that according to the procedure prevalent in the
College the admission forms are forwarded by the Head of
the Department in December preceding 728 the year when
the Examination is held. In the instant case the admission
form of the appellant must have been forwarded in
December 1971 whereas the examination was to take place
in April/May 1972. It is obvious that during this period of
four to five months it was the duty of the University
authorities to scrutinise the form in order to find out
whether it was in order. Equally it was the duty of the
Head of the Department of Law before submitting the form
to the University to see that the form complied with all
the requirements of law. If neither the Head of the
Department nor the University authorities took care to
scrutinize the admission form, then the question of the
appellant committing a fraud did not arise. It is well
settled that where a person on whom fraud is committed is
in a position to discover the truth by due diligence, fraud
is not proved. It was neither a case of suggestio falsi, or
suppressio veri. The appellant never wrote to the
University authorities that he had attended the prescribed
number of lectures. There was ample time and opportunity
for the University authorities to have found out the defect.
In these circumstances, therefore, if the University
authorities acquiesced in the infirmities which the
admission form contained and allowed the appellant to
appear in Part I Examination in April 1972, then by force
of the University Statute the University had no power to
withdraw the candidature of the appellant. A somewhat
similar situation arose in Premji Bhai Ganesh Bhai
Kshatriya v. Vice-Chancellor, Ravishankar University,
Raipur and others(ii) where a Division Bench of the High
Court of Madhya Pradesh observed as follows:
“From the provisions of ordinance Nos. 19 and 48
it is clear that the scrutiny as to the requisite
attendance of the candidates is required to be made
before the admission cards are issued. Once the
admission cards are issued permitting the candidates
to take their examination, there is no provision in
Ordinance No. 19 or ordinance No. 48 which would
enable the Vice-Chancellor to withdraw the
permission. The discretion having been clearly
exercised in favour of the petitioner by permitting
him to appear at the examination, it was not open
to the Vice-Chancellor to withdraw that permission
subsequently and to withhold his result.”
We find ourselves in complete agreement with the reasons
given by the Madhya Pradesh High Court and the view of
law taken by the learned Judges. In these circumstances,
therefore, once the appellant was allowed to appear at the
Examination in May 1973, the respondent had no
jurisdiction to cancel his candidature for that examination.
This was not a case where on the undertaking given by a
candidate for fulfilment of a specified condition a
provisional admission was given by the University to
appear at the examination which could be withdrawn at
any moment on the non-fulfilment of the aforesaid
condition. If this was the situation then the candidate
himself would have contracted out of the statute which
was for his benefit and the statute (1) A.T.R. 1967 M. P.
194,197. 729 therefore would not have stood in the way of
the University authorities in cancelling the candidature of
the appellant.”
The ratio as laid down does not applicable in the facts of
the present case, in view of the fact that, in the aforesaid
decision, the University authority failed in scrutiny of the form
and it was held that the fraud could not be attributed to the
student. However, in the present case, the respondent
University declined to enroll the petitioner, and there is no
allegation of fraud against the petitioner.
(III). In the case of Gujarat University v/s. Mukat
Navnitlal Kapadia reported in 1993 0 GLHEL-HC-204364, the
Court in para-3 held thus:
“(3). MR. S.N. Shelat learned counsel for
respondents nos. 1 and 2/ appellant herein would
submit that when Varanaseya Sanskrit
Vishwavidyalaya is not a recognised institution the M.
Com. degree which the petitioner obtained from that
Vishwavidyalaya could not be of any avail to him for
seeking admission; when the obtaining of a M. Com.
degree from a recognised institution is the
prerequisite for such admission. Here we find a case
where there has been no play of fraud and no
suppression of fact on the part of the petitioner. It is
not as if the Gujarat University and its officials could
not verify the position despite the exercise of due
diligence. There was absolute lack of due diligence on
their part and they did not care to verify the position
and allowed things to rest. There was ample time and
opportunity for them to verify the position. Yet they
did not. In such a case as pointed out by the
Supreme Court in Shri Krishnan vs. The Kurukshetra
University Kurukshetra AIR 1976 SC 376 it would not
be a case of either suggestion false or suppression
veri on the part of the petitioner. He by himself did
not misrepresent any thing. The application of the
petitioner as already noted did go through a scrutiny
by the Admission Cell of the Gujarat University
specifically constituted therefore. Only after such
scrutiny and the grant of eligibility certificate the
petitioner went through the course in respondent no.
4-College. It is claimed that long after the petitioner
going through the course and taking the examination
and coming out successfully passing in first class with
distinction a complaint was received and further there
has been a Notification by the University Grants
Commission in June 1991 saying that Varanaseya
Sanskrit Vishwavidyalaya is not a recognized
institution. If there had been due diligence at the
appropriate level and time this position which is
inequitable indeed to the petitioner would not have
emerged. It is only in this context we are obliged to
take note of the principle of equitable estoppel and
render justice as the facts of the case demand. The
doctrine of equitable is grounded on the principle
that where a person having the means to know the
material facts remains inactive or negligent or
abstains from taking the requisite steps at his
command to ascertain the material facts so as to
repudiate the transaction in time and thereby the
other person is induced to suppose and act that there
is nothing reprehensible in the transaction it would
amount to acquiescence on the part of the former
and the transaction though could be impeached
originally becomes unimpeachable. It is true that
ordinarily one cannot be estopped to assert direct
violation of any statutory provision but equitable
estoppel being eminently a rule of justice is supposed
to prevail over all other rules. As already noted the
petitioner could not be stated to have committed any
fraud and he could not be slated to have suppressed
any thing and whatever infirmity the seeking of
admission by the petitioner to the course suffered
must be deemed to have been acquisced in by the
University and its authorities. Accordingly finding no
warrant for interference in Letters Patent Appeal we
dismiss this Letters Patent Appeal. Letters Patent
It appears that no fraud was attributed to the student
and it was held that the University must be deemed to have
acquiesced to give admission. In the present case, as stated
above the University declined to enroll the petitioner.
The aforesaid judgment relied upon by the petitioner is
not applicable in the facts and circumstances of the present
15. In Special Civil Application No. 17933 of 2014, the
aforesaid issue was considered vide an order dated 09.01.2015,
relevant para reads thus:
“6. In view of these rival submissions, it is required to be
noted that whether present petition can be entertained and
allowed or not.
7. From perusal of the papers, it is evident that the
petitioner is claiming admission in LL.M., course. The basic
requirement is pointed out by learned Senior Counsel Shri
Shelat referring to the ordinance of the University is that
candidate must have passed at the first attempt with degree
of Bachelor of Law (Third Year LL.B., of Gujarat
University). Thus, it is evident that one must
have passed Third Year LL.B., in the first attempt with
second class and marksheet did not reflect that the
petitioner has passed as required. Admittedly, there
was ATKT and therefore, it cannot be said that the
petitioner is eligible, having passed with second class in the
first attempt. The submissions which have been made with
much emphazise by learned Advocate for the petitioner
referring to the subsequent marksheet showing him as
passed with 50%, are misconceived, as it cannot
be said to be a first attempt. Therefore, it is an
issue with regard to eligibility and criteria and for that
purpose, it is required to be considered by
the Respondent like Respondent No.2University.
8. The Hon’ble Apex Court has observed that consideration
of the aspect of the eligibility with minute details, other
examination and the material should be better
left to the authority like University as an expert
body. The Court is not equipped and may not have
necessary and relevant material, therefore normally the
Court would not interfere with such decision of an expert
body.
Further, in a judgment referred to and relied upon by
learned counsel Shri Shelat reported in (2003) 7 SCC 719
in the case of Regional Officer, CBSE Vs. Ku. Sheena
Peethambaran & Ors., it has also been observed and quoted
from the earlier judgment that,
“We cannot by our fiat direct the University to
disobey the statute to which it owes its
existence and the regulations made by
the University itself. We cannot imagine
anything more destructive of the rule of law than a
direction by the court to disobey the laws.”
Thus, in the facts of the case also when the ordinance
of the University prescribes eligibility, it cannot be
overlooked and the present petition cannot be entertained,
even if by inadvertence, the fees are accepted by the
college.”
16. The order passed in Special Civil Application No.
17933 of 2014 came to be confirmed in Letters Patent Appeal
No. 51 of 2015.
17. In the case of Principal, Patna College, Patna v/s.
Kalyan Srinivias Raman reported in AIR 1966 SC 707, the
Supreme Court observed thus:
“….where the question involved is one of interpreting a
regulation framed by the Academic Council of a University,
the High Court should ordinarily be reluctant to issue a
writ of certiorari where it is plain that the regulation in
question is capable of two constructions, and it would
generally not be expedient for the High Court to reverse a
decision of the educational authorities on the ground that
the construction placed by the said authorities on the
relevant regulation appears to the Hi Court less reasonable
than the alternative construction which it is pleased to
accept. The limits of the High Court's jurisdiction to issue a
writ of certiorari are well-recognised and it is, on the
whole, desirable that the requirements prescribed by
judicial decisions in the exercise of writ jurisdiction in
dealing with such matters should be carefully borne in
mind.”
18. In the case of Devender Bhaskar & Ors. v/s. State
of Haryana & Ors. reported in JT 2021 (11) SC 444, the
Hon’ble Supreme Court in para-20 to 26 observed as under:
“20. We have already noticed that one of the eligibility
criteria for appointment to the post of Arts and Crafts
teacher as per the advertisement dated 20.07.2006 is a
“two-year Diploma in Art and Craft examination conducted
by the Haryana Industrial Training Department or an
equivalent qualification recognized by the Haryana Education
Department.” It was made clear by the Industrial Training
and Vocational Educational Department, Haryana, that
diploma in Art and Craft Course by the Kurukshetra
University is conducted through distance education and that
this course cannot be equated with two-year diploma in Art
and Craft Course awarded by the Haryana Industrial Training
Department. Recognition of the said Course by the State of
Haryana, as held by the High Court, is entirely different
from its equivalence. When the experts in the Education
Department have held the diploma in Art and Craft by the
Kurukshetra University is not equivalent to the two-year
diploma in Art and Craft awarded by the Haryana Industrial
Training Department, we are of the view that the High
Court was not justified in equalizing them.
21. In Mohammad Shujat Ali & Ors. v. Union of India &
Ors 1, it was held that the question regarding equivalence of
educational qualifications is a technical question based on
proper assessment and evaluation of the relevant academic
standards and practical attainments of such qualifications. It
was further held that where the decision of the Government
is based on the recommendation of an expert body, then the
Court, uninformed of relevant data and unaided by technical
insights necessary for the purpose of determining
equivalence, would not lightly disturb the decision of the
Government unless it 1 (1975) 3 SCC 76 is based on
extraneous or irrelevant considerations or actuated mala fides
or is irrational and perverse or manifestly wrong.
22. In J. Ranga Swamy v. Government of Andhra Pradesh
and Others, 2 this Court held that it is not for the court to
consider the relevance of qualification prescribed for various
posts.
23. In State of Rajasthan & Ors. v. Lata Arun, 3 this Court
held that the prescribed eligibility qualification for admission
to a course or for recruitment to or promotion in service are
matters to be considered by the appropriate authority. It was
“13. From the ratio of the decisions noted above, it is
clear that the prescribed eligibility qualification for
admission to a course or for recruitment to or
promotion in service are matters to be considered by
the appropriate authority. It is not for courts to decide
whether a particular educational qualification should or
should not be accepted as equivalent to the
qualification prescribed by the authority.”
24. In Guru Nanak Dev University v. Sanjay Kumar Katwal
& Anr., 4 this Court has reiterated that equivalence is a
technical academic matter. It cannot be implied or assumed.
Any decision of the academic body of the university relating
to equivalence should be by a specific order or resolution,
duly published. Dealing specifically with whether a distance
education course was equivalent to the degree of MA
(English) of the appellant university therein, the 2 (1990) 1
SCC 288 3 (2002) 6 SCC 252 4 (2009) 1 SCC 610 Court held
that no material had been produced before it to show that
the distance education course had been recognized as such.
25. In Zahoor Ahmad Rather & Ors. v. Sheikh Imtiyaz
Ahmad & Ors. 5, it was held that the State, as an employer,
is entitled to prescribe qualifications as a condition of
eligibility, after taking into consideration the nature of the
job, the aptitude required for efficient discharge of duties,
functionality of various qualifications, course content leading
up to the acquisition of various qualifications, etc. Judicial
review can neither expand the ambit of the prescribed
qualifications nor decide the equivalence of the prescribed
qualifications with any other given qualification. Equivalence
of qualification is a matter for the State, as recruiting
authority, to determine.
26. Having regard to the above, in our view, the High Court
has erred in holding that the diploma/degree in Art and
Craft given by the Kurukshetra University is equivalent to
two-year Diploma in Art and Craft examination conducted by
the Haryana Industrial Training Department or diploma in
Art and Craft conducted by Director, Industrial Training and
19. The aforesaid judgments as relied upon by the
petitioner are not relevant for deciding the eligibility of the
petitioner for admission in the law course. The petitioner
passed with 2nd attempts / trials and appeared only in the two
subjects i.e. Statistics and Management Accounting, in which
he declared failed. The Ordinance – 154 framed by the
Saurashtra University for ‘exemption’ comes into play.
Admittedly, the petitioner appeared in 3 rd year B.Com
examination held in March, 2007 and was declared ‘fail’ in 2
subjects. The petitioner again appeared for 2 subjects only in
March, 2008, for which he was declared pass and claimed
exemption for other subjects. The petitioner could not clear 3 rd
year B.Com. Examination in the year March, 2008 only in 2 nd
attempt and he could not clear the examination in 1 st attempt.
Having claimed exemption, Ordinance 154 of the Saurashtra
University Act comes into play. This Court in aforesaid
decisions has considered the provisions of Ordinance 154 of the
Saurashtra University Act and considered the Rule-7 of the Bar
Council of India Education Rules, 2008 and held that if the
candidate passed the examination in more than 1 trial/attempt,
he would have the benefit of exemption in few papers but he
would be considered as having passed the examination with
minimum percentage of marks. In the present case, the mark-
sheet duly produced at Annexure-A (pg-10-11) clearly states
that the petitioner has secured ‘pass class’. Further the
eligibility as prescribed by the University cannot be overlooked
and the petitioner cannot be said to have eligible and to have
secured minimum 45% as prescribed by the Bar Council of
Gujarat for securing admission in L.L.B. course. The issue with
regard to the eligibility criteria is required to be considered by
the respondent – University. This Court otherwise cannot sit in
an Appeal to a decision taken by an expert body, and
therefore, this Court is not inclined to interfere under Article-
226 of the Constitution of India.
20. In view of above, the Rules of Bar Council of India
do not provide for conducting of examination and result
thereof. The Rule only suggests that a candidate must possess
45% marks for securing the admission in law course/ L.L.B.
course. The University Ordinance No. 154 as referred above
prevails over the Rules of the Bar Council of India and when
the petitioner had passed B.Com. Examination with ‘exemption’
i.e. in ‘pass class’ and on 2 nd attempts, he is not eligible for
admission in the L.L.B. course.
21. In view of above, this Court is not inclined to
exercise its extraordinary jurisdiction under Article-226 of the
Constitution of India, by directing the respondents to consider
the educational qualification of the petitioner as required under
Bar Council of India Legal Education Rules, 2008 for admission
to LLB course when petitioner has passed B.Com. examination
with ‘pass class’.
In view of above, the petition fails and is accordingly
In view of the order passed in the main petition, the
Civil Application do not survive and the same also stands
dismissed, accordingly. | A single-judge bench of Justice Vaibhavi D. Nanavati of the Gujarat High Court held that in terms of conduction of examination and results for admission to LLB course, the rules of a University would prevail over the Rules of Bar Council of India.
In this case, the High Court upheld Saurashtra University rules that prohibited admission for an LLB course in cases where the graduate had not passed their examination in a single attempt.
Briefly, the facts of the case are that the petitioner appeared for B.Com examination and out of 7 subjects, failed in 2 subjects. However, the petitioner appeared for these two subjects in re-examination and passed on his second try. He then submitted an application before the respondent University seeking admission for a 3 year L.L.B degree.
The respondent rejected his application on the ground that he had appeared twice for his B.Com examination and since he cleared them on his second try, he was declared pass only with an 'exemption'. Thus, he had not secured the percentage required for admission and was ineligible for the same. The admission process was conducted under the Bar Council of India and the respondent University. It was further impounded that the mark-sheet issued was under Ordinance-154(d) exemptions.
The petitioner wrote a letter to the Chairman Secretary, Bar Council of Gujarat who stated that the petitioner has secured 45.57% and was eligible for getting admission. However, the respondent-University reiterated that if a student had given two attempts, his percentage could not be calculated on basis of both the mark-sheets. As per the Rule of Bar Council of India, a student belonging to Open / General category had to have minimum 45% to secure admission in 3 years L.L.B. course and therefore, the petitioner was not eligible for getting admission.
The petitioner contended that the exclusion of petitioner on the basis of the number of attempts made by him was arbitrary. Thus, petitioner sought relief that he may not be granted a degree with exemption in view of the fact that the case of the petitioner falls under the provisions of Ordinance No. 154 of the Saurashtra University Act and as the said Ordinance, once a candidate seeks exemption, the candidate shall not be eligible for class or for university awards.
Here, the court held that the petitioner, having availed exemption under the provision of Ordinance- 154, would be held to be ineligible to pursue the LLB course, having cleared 3rd year B.Com with 'pass class'. This is because pass class was 36% and not 45.57%, and therefore, no error was committed by the respondent-University
The court further interpreted Ordinance 154 of the University to clarify its position. It found that the petitioner appeared in 3rd year B.Com examination and was declared 'fail' in 2 subjects. The petitioner again appeared for 2 subjects, for which he was declared pass and claimed exemption for other subjects. Having claimed an exemption, Ordinance 154 of the Saurashtra University Act became applicable.
The court relied on the judgments of Principal, Patna College, Patna v/s. Kalyan Srinivias Raman (AIR 1966 SC 707) and Devendra Bhaskar v. State of Haryana & Ors., 2021 (11) SC 444 in which the provisions of Ordinance 154 of the Saurashtra University Act and the Rule-7 of the Bar Council of India Education Rules, 2008 was considered. While considering these provisions, it was held by the court that if the candidate passed the examination in more than one trial/attempt, he would have the benefit of exemption in few papers but he would be considered as having passed the examination with minimum percentage of marks. Thus, in the present case, the court opined that–
"Mark- sheet duly produced clearly states that the petitioner has secured 'pass class'. Further, the eligibility as prescribed by the University cannot be overlooked and the petitioner cannot be said to have eligible and to have secured minimum 45% as prescribed by the Bar Council of Gujarat for securing admission in L.L.B. course. The issue with regard to the eligibility criteria is required to be considered by the respondent – University. This Court otherwise cannot sit in an Appeal to a decision taken by an expert body, and therefore, this Court is not inclined to interfere under Article- 226 of the Constitution of India."
The court further held that the Rules of the Bar Council of India do not provide for conducting of examination and result thereof. The Rules only suggest that a candidate must possess 45% marks for securing the admission in law course/ L.L.B. course. Thus, University Ordinance No. 154 prevails over the Rules of the Bar Council of India.
Thus, the Court was not inclined to exercise its extraordinary jurisdiction under Article 226 of the Constitution of India and the petition was accordingly dismissed.
Case Title : MADHUSUDAN GUNVANTRAY PANDYA Versus SAURASHTRA UNIVERSITY |
1. By the present Writ Petition, Petitioner takes exception to
the orders dated (i) 20.09.2019 passed by Respondent No. 4 - State of
Maharashtra, (ii) 08.02.2019 passed by Respondent No. 1 – Collector
of Nasik and (iii) 04.12.2018 passed by Respondent No. 2 – The
2. Respondent No. 1 is the licensing authority under the
Maharashtra Prohibition Act, 1949 (for short “the said Act”). Petitioner
is the citizen of India and resident of Village Peth, District Nashik.
Respondent No. 3 holds a CL III license under the said Act.
Respondent No. 1 – Collector of Nasik passed order dated 08.02.2019
permitting Respondent No. 3 to shift his CL III license from the
existing premises to the new premises. This permission was granted by
the Collector after obtaining prior permission of the Commissioner on
3. Admittedly Respondent No. 3 is carrying on business of
Restaurant and Bar in the name and style of M/s Hotel Mohana
Garden since 1996. The Excise Department has duly approved the plan
of the said hotel with Restaurant and Permit Room on Plot No. 284.
The said Restaurant and Bar was shut down pursuant to the order
passed by the Supreme Court on 15.12.2016 since the same was
abutting the National highway. Respondent No. 3 thereafter
constructed a wall on three sides of Plot No. 284 in order to restrict
the entry from the highway and thereafter made fresh Application to
the Competent Authority seeking a license on the ground that the
distance from the highway to the entrance of the restaurant was in
excess of the ceiling permissible under the order passed by the
4. Respondent No. 3 also procured a CL III license. Admittedly
CL III license did not fall within the restricted distance from the
highway and is unaffected by the Supreme Court judgment.
Respondent No. 3, therefore, made an Application to the Competent
Authority for allowing him to shift his license and conduct his business
on the basis of CL III license separately from the Restaurant and Hotel
namely Hotel Mohana Garden Bar & Restaurant which was in
operation from Plot No. 284.
5. Though admittedly for the purpose of CL III license, the
restriction of the distance from highway was not applicable, the Sub-
Inspector of State Excise procured information from the Executive
Engineer of the National Highway authority, who certified that the
distance of the hotel premises was 235 meters away from the National
Highway No. 848. A plan was also annexed to the certificate for
distance dated 18.07.2017 issued by the Excise Department.
Respondent No. 3 submitted an affidavit dated 19.06.2017 stating that
the establishment was beyond the restrictive distance from 220 meters
from the National Highway and also undertook to satisfy the other
applicable conditions.
6. Petitioner is the resident of the area in the vicinity of Plot
No. 284. On being asked, it is informed across the bar that Petitioner’s
residential house is at a distance of 500 meters from Plot No. 284.
7. It is Petitioner’s case that several persons residing in the
vicinity of Plot No. 284 have objected to the commencement of the
Country Liquor Bar under CL III license issued to Respondent No. 3 by
filing objections and complaints to the Statutory Authorities. Petitioner
has thereafter referred to a series of correspondence between the
officers of the Respondents Nos. 1 and 2. However, Petitioner’s
objection is to the fact that Respondent No. 3 has been permitted to
operate his CL III license from the premises of Hotel Mohana Garden
on Plot No. 284 where the Respondent No. 3 was also granted a FL III
8. By order dated 08.02.2019, Respondent No. 1 – The
Collector of Nasik permitted Respondent No. 3 to shift his CL III
license from Ozar, Taluka Niphad, District Nashik to Gat No. 233, Plot
No 284 Taluka Peth, District Nashik after receiving prior permission
from Respondent No. 2 – The Commissioner of State Excise on
9. Petitioner being aggrieved filed a Revision Application and
Application for stay to the said order. Respondent No. 4 granted an
interim order dated 14.08.2019 staying the orders passed by the
Collector and the Commissioner State Excise. Thereafter, Respondent
No. 4 heard the Revision Application finally and passed order on
20.09.2019 rejecting the same and vacated the interim stay order
dated 14.08.2019 and upheld the orders viz. dated 04.12.2018 passed
by Respondent No. 2 and 08.02.2019 passed by Respondent No. 1.
10. Mrs. Thadani, learned Advocate appearing for Petitioner
would submit that the orders impugned are bad in law in view of the
following reasons:
(i) that they are passed in contravention of
considering the restricted distance of the subject
premises from the National Highway; that infact
the subject premises are abutting the National
Highway and after grant of license, Respondent
No. 3 has demolished the wall on the southern
side thereby having direct access to the subject
premises from the National Highway; that in view
of this, the subject premises which also house
Mohana Garden permit room under the FL III
license now stands abutting the National Highway;
(ii) that Peth Nagar Parishd has not given its NOC to
Respondent No. 3 for commencement of a Country
Liquor Bar from Plot No. 284 and in the absence of
the same the license ought not to have been
(iii) that by virtue of shifting of the CL III license,
Respondent No. 3 has violated the distance
condition from the National Highway in respect of
the FL III license;
(iv) that by virtue of the impugned orders, Respondent
No. 3 has been permitted to commence the
business of selling Country Liquor in a
predominantly residential area and as per
government regulations, commercial activity is
prohibited in premises abutting the road which is
less than 12 meters; that there is violation of the
conditions mentioned in government resolution
dated 21.11.2018;
(v) that Respondent No. 3 has produced a bogus NOC
of the Nagar Parishad and relied upon bogus
documents to procure permission for his CL III
(vi) that as a concession for only licenses affected by
the Judgment of the Supreme Court, on
07.06.2017 the Government issued a Circular
exempting licenses affected by the said Judgment
from procuring “NOC of the local body” as
mandated in Rule 25, if the licence was being
shifted in the same District. A period of one year
was given for obtaining NA certificate for the
premises etc.;
(vii) that the mandatory requirement in Rule 25 of the
Maharashtra Country Liquor Rules, 1973 for
obtaining “No Objection of the Municipal Council”
was sought to be relaxed by the State Government
by a mere Circular, which is not legally tenable;
(viii) that in view of the above submissions the
impugned orders deserve to be set aside and that
the CL III license granted to the Petitioner be
cancelled.
11. PER CONTRA, Mr. Patil, learned Advocate for Respondent
No. 3 has made the following submissions:-
(i) that the Petitioner has no locus to file the present
Petition as he is neither concerned with the license of
this Respondent or license of Mr. Kanade and
therefore, the Petition though styled as Writ Petition is
actually a P.I.L. not public interest litigation but
personal interest litigation and therefore, the same is
liable to be dismissed with heavy costs;
(ii) that the main objections raised by the Petitioner is
distance from State highway less than 220 mtrs;
however the Engineer from the PWD department has
submitted his report and the same is neither challenged
not the subject matter in the Petition;
(iii) that Petitioner has in the course of his submission
stated that his layout is near the premises of the
Respondent. However, he has not produced any
documents to that effect but actually resides more than
2 km. away from the premises of the Respondent
wherein Respondent is carrying on his business
(iv) that it is alleged that there are several complaints filed
in respect of Respondent’s premises but it is pertinent
to note that under the jurisdiction of Peth Municipal
Council area there are 1 CL-III and 4 FL-III licenses
which are functioning. Petitioner has no objection for
functioning of the said licenses in the Municipal
Council Area and this clearly shows that the Petitioner
has not approached this Court with clean hands and
also suppressed material facts from this Court;
(v) that it is alleged that Commercial NA is not submitted
by the Respondent. In this regard, it is stated that
Commercial NA for Plot No. 284 was granted by the
Sub-Divisional Officer Nashik on 10.01.1996. Further
the Chief Officer Peth Municipal Council vide its order
dated 31.03.2021 granted Commercial NA permission
to Survey No. / Gat No. 233 (old 337) Plot No. 284
admeasuring 495 sq. mtrs. Thereafter by exercising
powers under Section 44 of the Maharashtra Land
Revenue Code, 1966 the Sub-Divisional Officer Dindori
vide its order dated 19.01.2022 granted the permission
of change of user from residential to commercial of the
(vi) that in the event if the license holder commits any
breach or violation in provisions in that event Section
54 of the Maharashtra Prohibition Act empower the
licensing authority to suspend or cancel the license and
Section 56 of the said Act empowers the licensing
authority to cancel the license by recording reason in
writing. Since the Respondent is carrying business
strictly in accordance with the Maharashtra Prohibition
Act 1949, the Maharashtra Country Liquor Rules 1973
and circular issued from Government of Maharashtra,
Commissioner of State Excise and Collector of Nashik,
no action under Sections 54 or 56 has been initiated till
date.
12. Mr. Patil and the learned AGP appearing for the
Respondents have both supported the impugned orders and submitted
that the transfer application of Respondent No. 3 was thoroughly
inquired into and verified by Respondent No. 1 through the Inspector
for State Excise who opined that the subject premises were situated at
a distance of 235 meters away from the National Highway No. 848;
that there is no educational or religious institution or statue of any
national leader within the distance of 100 meters from the subject
premises; that construction of the proposed subject premises was
complete in all respect; that in the case for shifting of license in the
case of Respondent No. 3, it was permissible if the rules, guidelines
and circular were adhered to and as such the Petition was devoid of
merit and deserved to be dismissed.
12.1. That apart, it was contended that the Petition filed by the
Petitioner is not maintainable since the Petitioner did not object to the
application for shifting of Respondent No. 3’s CL III license to the
subject premises and it is only after the same was allowed, the
Petitioner has filed the present Petition seeking a Writ of Certiorari.
12.2. That the petition filed by the Petitioner is a malafide and
colourable exercise of power borne out of jealousy and an extortionist
reason without the Petitioner having any nexus whatsoever with the
12.3. Hence the Respondents have prayed for dismissal of the
13. I have heard the learned Advocates appearing for the parties
and with their able assistance, perused the record and pleading in the
present case.
14. At the outset, it is seen that the locus of the Petitioner in
filing the present Petition is required to be seen. The Petition is not
filed as a Public Interest Litigation. Though it is argued across the bar
that having a Country Liquor bar in the predominantly residential area
is detrimental to the residents of the area, the said submissions
however do not find mention in any of the pleadings. Challenge to the
Petitioner’s CL III license is on account of non-compliance of certain
statutory conditions by Respondent No. 3. However, whether the
Petitioner is entitled to maintain the said challenge and whether the
proceedings under the Article 227 of the Constitution of India are
maintainable is the moot question which needs to be addressed at the
outset. The impugned order for granting license is passed by the
Collector. Respondent No. 2 Commissioner has given his consent to
Respondent No. 1 after following the due process of law to grant the
license. Respondent No. 1 is the licensing authority who has granted
the license. Admittedly, Petitioner never objected or was not a party to
the original Application seeking transfer of the CL III license from Ozar
to the subject premises in Peth. The Petition as seen is not filed by the
Petitioner in a representative capacity on behalf of the residents in the
area. Therefore, the Petitioner has no locus standi to file the present
15. That apart perusal of record clearly reveals that the manner
in which the Petition is drafted is an abuse of the process of law. It is
seen that the Petition proceeds on the basis of the violation of
fundamental rights of the Petitioner under Article 14 and Article 21 of
the Constitution of India. However, Petitioner has not given any event
or incident as to how his fundamental rights are violated. On the
contrary the Respondent No. 3’s right under article 19(1)(g) to carry
on trade and business by following the due process of law is in fact
hampered on the allegations of the Petitioner. Record clearly indicates
that the Licensing Authority has followed the due process of law in
granting the license. The entire gamut of documentary material i.e.
Application, NOC, permissions etc. have all been enumerated in the
affidavit-in-reply filed by Respondent No. 3 and is confirmed by
Respondent Nos. 1, 2 and 4 in its affidavit-in-reply dated 12.03.2021.
All such necessary documents namely Application, NOC, permission,
affidavits, orders, etc. are all appended to the affidavit-in-reply of the
Respondent No. 3. That apart, the Statutory Authority has confirmed
on affidavit that the transfer application in respect of Respondent No 3
was thoroughly inquired into by Respondent No. 1 only after following
the due process of law the same has been issued. Record also indicates
that Respondent No. 3 has received N.A. Permission for Plot No. 284
in the year 1996 and copy of the same is produced on record. Hence,
this objection of the Petitioner also does not survive. Record clearly
indicates that the FL III license premises and CL III license premises
are both running independently from Plot No. 284 with separate
entrances and there is no violation of any conditions or rule by
Respondent No. 3. That both the premises are separate and distinct.
Needless to state that if there is any violation by Respondent No. 3 of
any rules under the Maharashtra Country Liquor Rules 1973, the
Statutory Authorities shall take cognizance and action in accordance
with law.
16. In view of the above observations and findings, Writ Petition
fails and deserves to be dismissed with costs. Petitioner is directed to
pay costs of Rs. 10,000/- to the Kirtikar Law Library, High Court,
Mumbai as costs for filing the present Writ Petition. The Cost shall be
paid within a period of one week from today failing which the same
shall be recovered as arrears of land revenue by the Collector Nashik
from the Petitioner.
17. Writ Petition is dismissed. Though the Writ Petition is
dismissed, list the Petition on board on 01.02.2023 for compliance of
payment of costs by the Petitioner. To be placed under the caption ‘for | The Bombay High Court recently imposed Rs. 10,000/- cost on a petitioner who had objected to opening of a Country Liquor Bar in his neighbourhood, observing that his allegations hamper the business owner’s right to carry on trade.
Justice Milind N. Jadhav, while dismissing the writ petition, said the manner in which the Petition has been drafted is an abuse of the process of law. The petition had challenged Nasik Collector's decision to allow a restaurant and bar-owner's application for shifting of CL III license (License for retail sale of Country Liquor) from existing premises to the new premises.
"It is seen that the Petition proceeds on the basis of the violation of fundamental rights of the Petitioner under Article 14 and Article 21 of the Constitution of India. However, Petitioner has not given any event or incident as to how his fundamental rights are violated. On the contrary the Respondent No. 3’s right under article 19(1)(g) to carry on trade and business by following the due process of law is in fact hampered on the allegations of the Petitioner,” said the court.
The Case
One Kailash Suryavanshi has been running a restaurant and bar Hotel Mohana Garden since 1996. It was shut down in accordance with a Supreme Court decision in 2016 as it was close to the national highway.
Later, a wall was constructed on three sides of the plot to restrict entry from the highway and a fresh application for license was made. Suryavanshi also procured CL III license under the Maharashtra Prohibition Act, 1949 for which the restriction of the distance from the highway was not applicable. He then made an application to shift his license and conduct the business of CL III license separately from the Hotel Mohana Garden Bar & Restaurant.
The Collector, State Excise Department, Nasik, with the consent of the Commissioner, permitted Suryavanshi to conduct his business separately on the basis of the CL III license and shift the license from Ozar, Taluka Niphad, District Nashik to Taluka Peth, District Nashik, on the same plot as Hotel Mohana.
Allegations
Rahul Giridhar Pathade, the petitioner, resides near Hotel Mohana. He filed a revision application challenging the Collector’s order. The Minister of State Excise upheld the Collector’s order. He then approached the high court.
Advocate Veena B. Thadani for the petitioner submitted that the Peth Nagar Parishad has not given its NOC for commencement of a country liquor bar. By virtue of shifting of the CL III license, Suryavanshi has violated the distance condition from the national highway in respect of the FL III license (License for sale at restaurant or hotel of imported and Indian manufactured foreign liquor), she argued.
Thadani also submitted, after grant of license, Suryavanshi has demolished the wall on the southern side thereby having direct access to the subject premises from the National Highway. The court was also told Suryavanshi has been permitted to commence the business of selling Country Liquor in a predominantly residential area.
Advocate Santosh L. Patil for Suryavanshi submitted that the petitioner has no locus. He has not challenged the PWD report regarding the distance of the business from the highway, the court was told. Patil further contended that the petition is not maintainable since the petitioner did not object to the application for shifting of the CL III license. It was only after it was allowed that he filed the current petition, the counsel said.
Assistant Government Pleader P. G. Sawant said that the application was verified through the inspector for state. The subject premises were at a distance of 235 metres from the national highway and there is no educational, or religious institution, or statue of any national leader within 100 metres from the premises.
Ruling
The court noted that the petition was not filed as a public interest litigation. Though, petitioner argued that having a country liquor bar in a predominantly residential area is detrimental to the residents, these submissions are not mentioned in the pleadings, the court said.
“Petitioner never objected or was not a party to the original Application seeking transfer of the CL III license from Ozar to the subject premises in Peth. The Petition as seen is not filed by the Petitioner in a representative capacity on behalf of the residents in the area. Therefore, the Petitioner has no locus standi to file the present Petition,” the court said.
The court said that petitioner alleged violation of his fundamental rights under Articles 14 and 21 of the Constitution but has not shown any event or incident to show how his rights have been violated.
The record indicates that the licensing authority followed due process of law in granting the license, the court said. All necessary documents, application, NOC, permissions, etc. have all been attached in Suryavanshi’s affidavit and is confirmed by the state, the court observed.
“Record clearly indicates that the FL III license premises and CL III license premises are both running independently from Plot No. 284 with separate entrances and there is no violation of any conditions or rule by Respondent No. 3. That both the premises are separate and distinct. Needless to state that if there is any violation by Respondent No. 3 of any rules under the Maharashtra Country Liquor Rules 1973, the Statutory Authorities shall take cognizance and action in accordance with law”.
Case no. – Writ Petition No. 12083 of 2019
Case Title – Rahul Giridhar Pathade v. Collector of Nasik, State Excise Department and Ors. |
il Writ Petition 747 of 1985.
(Under Article 32 of the Constitution of India).
S.R. Rangarajan and K.B. Rohtagi for the Petitioner.
Manoj Swarup and Miss Lalita Kohli Advocates for the Respondents.
The Judgment of the Court was delivered by PATHAK, CJ.
This writ petition under Article 32 of the Constitution has been filed by Baldev Raj Sharma against an order of the Bar Council of Punjab and Haryana rejecting his application for enrolment as an advocate.
On 4 March, 1972 the petitioner passed the Bachelor of Arts examination from the Punjabi University, Patiala.
In 1978 he joined the Bachelor of Laws (Academic) course in Kurukshetra University.
The course is of two years ' dura tion.
The petitioner completed the course and on 1 January, 1981 he was awarded the degree of Bachelor of Laws (Academ ic) by the Kurukshetra University.
During the year 198 1 the petitioner joined the LL.B. (Professional) course in the third year in Kanpur University as a regular student.
The Kanpur University confers two distinct degrees, LL.B. (General), which is a two year course, and LL.B. (Profes sional), which is a three year course.
A person who has been awarded the LL.B. (General) degree is eligible for admission to the LL.B, (Professional) third year.
The petitioner says that there is no distinction in the Rules and Regulations of the Kanpur University on whether LL.B. (General) course should be pursued by regular attendance or as a non collegi ate student.
It is urged that the LL.B. degree of the Kanpur University is recognised by the Bar Council of India for the purpose of enrolment as an advocate.
The petitioner attended classes as a regular student of the LL.B 864 (Professional) Course third year of the Kanpur University as required by the Rules and Regulations framed by that Univer sity.
He appeared in the final examination and was declared successful.
On 22 July, 1982 the degree of LL.B. (Profes sional) was issued by the Kanpur University to him.
Thereaf ter, on 4 August, 1982 the petitioner applied to the State Bar Council of Punjab and Haryana with the necessary enrol ment fee for enrolment as an advocate under the .
On 26 April, 1983 the Bar Council of Punjab and Haryana denied enrolment to the petitioner as an advocate on the ground that the petitioner has not fulfilled the conditions laid down in Rule 1(1)(c) of the Rules of the Bar Council of India framed under section 7(h) and (i), section 24(1)(c)(iii) and (iiia) and section 49(1)(d).
The detailed grounds of refusal supplied to the petitioner by the Bar Council of Punjab and Haryana state that the petitioner had obtained his Bachelor of Laws degree from the Kurukshetra University as a result of the examination held in April, 1980 as a private candi date.
It was an LL.B. (Academic) degree obtained in two years ' study as a private candidate.
The third year of law was pursued by him as a regular student from V.S.S.D. Col lege, Kanpur of the Kanpur University from which institution he obtained the professional degree.
It was further stated that the petitioner had not fulfilled the conditions laid down in the provisions detailed earlier as he had passed his two years ' law course as a private candidate from Kurukshe tra University and the third year law only by regular at tendance at the V.S.S.D. College, Kanpur.
It appears that the State Bar Council, upon receiving the application of the petitioner for enrolment as an advocate, obtained the opin ion of the Bar Council of India and in conformity with that opinion the State Bar Council has refused enrolment.
Section 24(1)(c) provides as follows: "24.
Persons who may be admitted as advocates on a State roll(1) Subject to the provisions of this Act, and the rules made thereunder, a person shall be qualified to be admitted as an advocate on a State roll, if he fulfils the following conditions, namely: (c) he has obtained a degree in law (i) . . (ii) . . 865 (iii) after the 12th day of March, 1967, save as provided in sub clause (iiia), after under going a three year course of study in law from any University in India which is recognised for the purposes of this Act by the Bar Coun cil of India; or (iiia) after undergoing a course of study in law, the duration of which is not less than two academic years commencing from the academ ic year 1967 68, or any earlier academic year from any University in India which is recog nised for the purposes of this Act by the Bar Council of India.
" Sub clause (iii) of clause (c) of section 24(1) entitles a person to be admitted as an advocate on a State roll if he has obtained a degree in law after 12th March, 1967 after under going three years ' of study in law in any University in India recognised for the purposes of the by the Bar Council of India.
An exception to this is provided by sub cl.
(iii) of cl.(c), under which a person is quali fied for admission as an advocate if he has obtained a degree in law after undergoing a course of study in law, the duration of which is not less than two academic years com mencing from the academic year 1967 68, or any earlier academic year from any University in India recognised for the purposes of the Act by the Bar Council of India.
The petitioner obtained a degree of Bachelor of Laws (Profes sional) from the Kanpur University in the examination of 1981.
He had pursued the third year course only of study pertaining to that degree as a regular student ,of the V.S.S. 'D. College, Kanpur in Kanpur University.
The Bar Council of India has framed Rules under the .
Rule 1(1)(c) of of the Bar Council of India Rules, 1975 provides that except as provided in section 24(1)(c)(iiia) of the a degree in law obtained from any University in the territory of India after 12th March, 1967 shall not be recognised for the purposes of section 24(1)(c)(iii) of the Act unless the conditions specified there are fulfilled, including the condition "that the course of study in law has been by regular, attendance at the requisite number of lectures, tutorials and moot courts in a college recognised by a University".
These rules were replaced by a fresh set of rules in 1984 and the new Rule 1(1)(c) is almost identical.
The Rule clearly requires that the course of study in law should have been by regular attendance for the requisite number of lectures, tutorials and moot courts and practical training.
The Rule envisages that for the entire period of the law course there must be a regular attendance of the student before he can satisfy the conditions necessary for enrolment as an advocate under the .
The Rules amplify what is intended in section 24(1)(c)(iii) 866 of the Act.
The three years ' course of study envisaged by that subclause in the Act intends that the three years ' course of study in law must be pursued by maintaining regu lar attendance.
We are unable to say that there is any inconsistency between the Act and the Rule.
So also in a case falling under cl.
(iii) of section 24(1)(c) of the Act, a course of study in law must be pursued for not less than two academic years in terms of that sub clause and Rule 1(1)(c) will apply to such a case also.
There is a substantial difference between a course of study pursued as a regular student and a course of study pursued as a private candi date.
The policy underlying the relevant provisions of the Bar Council Rules indicates the great emphasis laid on regular attendance at the law classes.
The conditions are specifically spelt out when the Act is read along with the Rules.
When so read, it is plain that a candidate desiring enrolment as an advocate under the must fulfil the conditions mentioned in section 24(1)(c)(iii) or section 24(1)(c)(iiia) read with Rule 1(1)(c) of the Bar Council of India Rules, 1975.
In the present case the petitioner failed to do so.
His application for enrolment was rightly reject ed.
The writ petition is dismissed, but in the circum stances, there is no order as to costs.
P.S.S. Petition dismissed. | Sub clause (iii) of cl.
(c) of section 24(1) of the entitles a person to be admitted as an advocate on a State roll if he has obtained a degree in law after 12th March, 1967 after undergoing three years ' of study in law.
Under sub cl.
(iii) of cl.
(c) a person is considered quali fied for admission as an advocate if he has obtained a degree in law after undergoing a course the duration of which is not less than two academic years commencing from the academic year 1967 68 or any earlier academic year.
Rule 1(1)(c) of of the Bar Council of India Rules, 1975 requires that the course of study in law should have been by regular attendance for the requisite number of lectures, tutorials and moot courts and practical training.
The petitioner had obtained his Bachelor of Laws (Aca demic) degree in 1980 as a private candidate.
He then pur sued the third year of law as a regular student from the Kanpur University and obtained the professional degree in 1982.
Thereafter, he applied to the State Bar Council of Punjab and Haryana for enrolment as an advocate under the Act.
The State Bar Council denied enrolment on the ground that he had not fulfilled the conditions laid down in Rule 1(1)(c) of the Rules.
Dismissing the writ petition, HELD: A candidate desiring enrolment as an advocate under the must fulfil the conditions mentioned in section 24(1)(c)(iii) or section 24(1)(c)(iiia) read with Rule 1(1)(c) of the Bar Council of India Rules, 1975.
In the instant case, the petitioner failed to do so.
His applica tion for enrolment was, therefore, rightly rejected.
[866C] Sub clause (iii) of section 24(1)(c) when read along with Rule 1(1)(c) 863 intends that the three years course of study in law must be pursued by maintaining regular attendance.
So also, in a case failing under sub cl.
(iiia) of section 24(1)(c) a course of study in law must be pursued for not less than two academic years and Rule l(1)(c) will apply to such a case also.
The petitioner had passed his two year 's law course as a private candidate and the third year law only by regular attendance.
He was, therefore, not entitled to be enrolled as an advo cate.
[865H 866A, 864E] |
1. The application filed on behalf of the defendant under Section 8 of the
Arbitration and Conciliation Act, 1996, being I.A. No.2863/2020, was
allowed by this Court on 31st March, 2022 and a sole arbitrator was
2. The only issue to be adjudicated in the suit was whether the plaintiff
is entitled to refund of court fees in terms of Section 16 of the Court Fees
Act, 1870 read with Section 89 of the Code of Civil Procedure, 1908 (CPC).
3. Counsel for the plaintiff submits that in terms of Section 89, the
plaintiff is entitled to refund of court fees in view of the fact that the matter
has been referred to arbitration. In this regard, reliance has been placed on
the order dated 15th January, 2019 in RV Solutions Pvt. Ltd. v. Ajay Kumar
4. On the other hand, the counsel for the defendant opposes the said
5. At this stage, reference may be made to relevant provisions for the
refund of court fees. Section 16 of the Court Fees Act, 1870 is set out below:
“16. Refund of fee.—Where the Court refers the parties to the suit
to any one of the mode of settlement of dispute referred to in section
89 of the Code of Civil Procedure, 1908 (5 of 1908), the plaintiff
shall be entitled to a certificate from the Court authorising him to
receive back from the collector, the full amount of the fee paid in
respect of such plaint.”
6. The relevant portion of Section 89 of the CPC has been set out below:
“89. Settlement of disputes outside the Court.—(1) Where it
appears to the Court that there exist elements of a settlement which
may be acceptable to the parties, the Court shall formulate the
terms of settlement and give them to the parties for their
observations and after receiving the observations of the parties, the
Court may reformulate the terms of a possible settlement and refer
(c) judicial settlement including settlement through Lok Adalat:
(2) Were a dispute has been referred—
(a) for arbitration or conciliation, the provisions of the
Arbitration and Conciliation Act, 1996 (26 of 1996)
shall apply as if the proceedings for arbitration or
conciliation were referred for settlement under the
provisions of that Act
7. Sub-section (1) of Section 89 provides that if it appears to the Court
that settlement may be arrived between the parties, the court may refer the
matter for arbitration or conciliation or mediation or to the Lok Adalat. The
key word here is “settlement”. A reading of the aforesaid provisions leaves
no doubt in my mind that the said provisions for refund of court fees are
only applicable when the matter is referred for arbitration in the context of
8. In the present case, an application under Section 8 of the Arbitration
and Conciliation Act filed on behalf of the defendant has been allowed and
the matter has been referred for adjudication to a sole arbitrator. The matter
was not referred in terms of Section 89 of the CPC for settlement. Therefore,
the plaintiff is not entitled to refund of court fees in terms of Section 16 of
9. It is settled law that a litigant is not entitled to refund of court fees in
case of rejection of plaint under Order VII Rule 11 of the CPC where the
plaint does not disclose a cause of action. On the same analogy, the plaintiff
cannot be entitled for refund of court fees in the event of an application
under Section 8 of the Arbitration and Conciliation Act being allowed and
the parties being referred for arbitration. The rationale being that the
plaintiff has invoked a wrong remedy of filing the suit when it should have
invoked the arbitration proceedings.
10. The reliance placed by the counsel for the plaintiff on the judgment
placed in RV Solutions (supra) is misplaced. There is only a direction given
in the said case that court fees may be refunded as the matter has been
referred to arbitration. The same would not constitute a dicta to hold that
any of the cases where Section 8(1) of the application is allowed and the
matter is referred for arbitration, the plaintiff would be entitled to refund of
court fees. | The Delhi High Court has observed that a plaintiff cannot be entitled for refund of court fees in the event of an application under sec. 8 of the Arbitration and Conciliation Act being allowed and the parties being referred for arbitration.
Justice Amit Bansal reiterated that a litigant is not entitled to refund of court fees in case of rejection of plaint under Order VII Rule 11 of the CPC where the plaint does not disclose a cause of action.
"On the same analogy, the plaintiff cannot be entitled for refund of court fees in the event of an application under Section 8 of the Arbitration and Conciliation Act being allowed and the parties being referred for arbitration. The rationale being that the plaintiff has invoked a wrong remedy of filing the suit when it should have invoked the arbitration proceedings," the Court observed.
The Court was dealing with a case in which an application filed on behalf of the defendant under sec. 8 of the Arbitration and Conciliation Act, 1996 was allowed on 31st March, 2022 and a sole arbitrator was appointed.
The only issue to be adjudicated in the suit was whether the plaintiff was entitled to refund of court fees in terms of sec. 16 of the Court Fees Act, 1870 read with sec. 89 of the Code of Civil Procedure, 1908 (CPC).
The Counsel appearing for the plaintiff submitted that in terms of sec. 89, the plaintiff was entitled to refund of court fees in view of the fact that the matter has been referred to arbitration. In this regard, reliance was placed on a Supreme Court judgment in RV Solutions Pvt. Ltd. v. Ajay Kumar Dixit.
On the other hand, the counsel appearing for the defendant opposed the said request.
The Court was of the view that in the present matter, the case was not referred in terms of sec. 89 of the CPC for settlement and thus, the plaintiff was not entitled to refund of court fees in terms of sec. 16 of the Court Fees Act, 1870.
Section 89 provides that if it appears to the Court that settlement may be arrived between the parties, the court may refer the matter for arbitration or conciliation or mediation or to the Lok Adalat.
The Court observed that key word here is "settlement" and thus, the provisions for refund of court fees are only applicable when the matter is referred for arbitration in the context of "settlement".
"In the present case, an application under Section 8 of the Arbitration and Conciliation Act filed on behalf of the defendant has been allowed and the matter has been referred for adjudication to a sole arbitrator. The matter was not referred in terms of Section 89 of the CPC for settlement. Therefore, the plaintiff is not entitled to refund of court fees in terms of Section 16 of the Court Fees Act, 1870," it observed.
The Court added,
"The reliance placed by the counsel for the plaintiff on the judgment placed in RV Solutions (supra) is misplaced. There is only a direction given in the said case that court fees may be refunded as the matter has been referred to arbitration. The same would not constitute a dicta to hold that any of the cases where Section 8(1) of the application is allowed and the matter is referred for arbitration, the plaintiff would be entitled to refund of court fees," the Court observed.
Case Title: A-ONE REALTORS PVT.LTD. v. ENERGY EFFICIENCY SERVICES LTD. |
4. It is the case of the petitioner that the marriage of the
petitioner was solemnized in the year 2011 and out of the
said wedlock, the minor corpus was born in the year 2013.
Due to some matrimonial dispute, his wife left her
matrimonial home and went to her parental home from
2015. Attempts were made for conciliation between the
husband and wife. Due to intervention of the respected
members of the society, the wife had returned to her
matrimonial home, however, thereafter also disputes had
arisen between the husband and wife and his wife again left
her matrimonial home in the year 2016 along with the
minor son – corpus and started residing with her parents.
The husband filed application under section 97 of the Code
of Criminal Procedure which was disposed of. It is also the
case of the petitioner that thereafter also many efforts were
made by the petitioner to get custody of the minor son but
in vein. In the meantime in the year 2020, wife of the
petitioner and mother of the corpus expired due to Covid.
5. According to the case of the petitioner, the petitioner
remarried even during the subsistence of his first marriage
and out of the said second marriage, he has two children.
The wife of the petitioner was residing since 2016 at her
parental home and at that time the minor was aged 3.1/2
years and since then the minor is with the respondent Nos.4
and 5 - maternal grand-parents. The petitioner has made
various attempts to get the custody of the corpus but failed.
Hence as a last resort, the present petition has been
preferred by the petitioner being father for getting custody of
of his minor son. According the petitioner, the minor son
requires love and affection of his father and hence it is
requested to handover custody of the minor corpus to the
6. Today, when the matter is taken up for hearing,
corpus named Samir along with the respondent Nos.4
and 5 – his maternal grand-parents is present. We
have inquired from the corpus about his status and his
daily routine. He does not know the name of the
petitioner – his father, naturally because since long he
is not residing with his father. He calls his Maternal
grand-parents as “Mummy and Pappa”. He has stated
that his maternal grand-parents are taking his care
and he is getting love and affection from them and he
has no complain against them. He has happily stated
that he is happy with his maternal grand-parents.
7. We have also ascertained the wish of the minor corpus
and the corpus has specifically stated that he wants to go
and reside with the respondent Nos.4 and 5 – his maternal
8. In view of the willingness expressed by the corpus,
and as the petitioner has remarried and has two children
and the corpus is residing with his maternal grand-parents
– respondent Nos.4 and 5 herein since about 6 years,
custody of the minor corpus is ordered to be continued with
the respondent nos.4 and 5 herein from whom the minor
corpus is produced before this Court and the custody of the
corpus has been handed over to the petitioner, considering
the welfare and happiness of the corpus – minor son of the
petitioner. Considering the overall facts situation, custody of
the minor cannot be handed over to the petitioner herein
who has remarried and has two children. In any way, the
custody of the corpus with the respondent Nos.4 and 5 –
maternal grand-parents cannot be said to be illegal custody
and it cannot be said that the corpus is in illegal
confinement. Hence, no interference of this Court is
warranted and hence the present petition is dismissed. | A division bench of the Gujarat High Court comprising Justices Vipul M. Pancholi and Rajendra M. Sareen has held that custody of a minor with his maternal grandparents could not be considered illegal custody or illegal confinement, given that the husband/ the father of the minor had remarried during subsistence of his marriage with his first wife, who was the mother of the said minor.
This petition was filed under Article 226 of the Constitution of India praying to direct the police authority to produce the corpus (Samir, a minor aged 9 years) and handover his custody to the petitioner (the father). The respondent in this case are maternal grandparents of the corpus.
Briefly, the facts of the case are that the petitioner's marriage was solemnized in 2011. Out of this wedlock, the corpus was born in 2013. Due to a matrimonial dispute, petitioner's wife left her matrimonial home and went to her parental home in 2015. After some attempts of conciliation, she returned to her matrimonial home, left again with the corpus in 2016 due to disputes and started residing with her parents.
The petitioner had filed an application under Section 97 CrPC which was disposed of. He could not get the custody of the minor son. Thus, since the minor was aged 3 years he has been living with his maternal grandparents.
Meanwhile, the petitioner had remarried even during the subsistence of his first marriage and out of the said second marriage, he has two children. In 2020, wife of the petitioner and mother of the corpus passed away due to Covid.
After various failed attempts to get the custody of the corpus, the present petition was preferred by the petitioner being a father for getting custody of his minor son. According to the petitioner, his minor son requires love and affection of his father and hence he should have custody over the corpus.
When the matter was being heard, the corpus, Samir along with his maternal grandparents was present. The court inquired from the corpus about his status and his daily routine. He did not know the name of the petitioner – his father. Instead, he referred to his maternal grandparents as "Mummy and Pappa". He stated that his maternal grandparents were taking care of him, he was getting love and affection from them and he had no complaint against them.
The court also ascertained the wish of the minor corpus who specifically stated that he wanted to reside with the his maternal grandparents.
The court took special notice of the fact that the corpus wanted to live with his maternal grandparents, and the petitioner had remarried and had two children. Further, since the corpus had been residing with his maternal grandparents for over 6 years, the court held that the custody of the minor corpus was to be continued with his maternal grandparents. On the issue of whether the corpus was in illegal confinement, the court opined that–
"Considering the overall facts, custody of the minor cannot be handed over to the petitioner herein who has remarried and has two children. In any way, the custody of the corpus with the respondent Nos.4 and 5 – maternal grand-parents cannot be said to be illegal custody and it cannot be said that the corpus is in illegal confinement."
Hence, the court held that no interference was warranted and the petition was dismissed.
Case Title : SABIRBHAI GAFARBHAI MULTANI Versus STATE OF GUJARAT |
The applicant is accused in an offence bearing FIR No.I-240
of 2015 registered with Vashi Police Station under Section 376 of Indian
Penal Code and under Section 4 of the Protection of Children from Sexual
Offences Act (POSCO Act). The offence was registered on the complaint
of Mr. Amardas P. Bhalla, the father of the victim-girl. He filed complaint
for sexual abuse and sexual harassment of her minor daughter by the
applicant. The applicant was arrested. The police have also filed charge-
sheet and is pending as POSCO Special Act No. 198 of 2015 before the
Special Court at Thane.
2 During pendency of the prosecution, through intervention
and well wishers, applicant has settled the dispute with Respondent No.2.
Now she has become major. Today, both the parties are present in the
3 We have heard the learned Counsel for the applicant, learned
APP and the learned Counsel for Respondent No.2.
4 We have read the affidavit filed by the victim-girl. Now, she is
major. It seems that, they were in love with each other. Now they have
decided to marry after settling in life in their respective careers. Her
parents have also filed affidavits. They have given explanation of
misunderstanding while lodging the FIR. Even now they have accepted
the friendship in between their daughter and the appellant. The victim-
girl tried to give an explanation about her statement recorded by the
Police and learned Magistrate. She was tutored to give those statements.
We are not accepting the said explanation.
5 We are inclined to accept the prayer for quashing for the
reasons that both have agreed to marry. We accept her readiness as an
undertaking given today to this Court. Victim-girl had given no objection
for quashing. When the applicant is present in the Court, we also asked
about his readiness to marry with the victim-girl, he has given an
undertaking to marry to her. We have accepted as an undertaking given to
6 So we are inclined to accept the request for quashing the FIR,
only by considering their future. If the prosecution still remains, it will
come in their peaceful life.
(b) FIR No.I-240 of 2015 registered with Vashi Police Station under
Section 376 of Indian Penal Code and under Section 4 of the
Protection of Children from Sexual Offences Act (POSCO Act), is
quashed and set aside.
(c) Applicant to file affidavit to that effect within 15 days. If the
affidavit is not filed, then the prosecution will revive. | The Bombay High court recently quashed an FIR under Protection of Children from Sexual Offences Act (POCSO Act) for penetrative sexual assault, as the victim girl (now a major) says that she and the accused were allegedly in love and are now to be married. Justices Prasanna B. Varale and SM Modak stated, "we are inclined to accept the request for quashing the FIR, only by...
The Bombay High court recently quashed an FIR under Protection of Children from Sexual Offences Act (POCSO Act) for penetrative sexual assault, as the victim girl (now a major) says that she and the accused were allegedly in love and are now to be married.
Justices Prasanna B. Varale and SM Modak stated, "we are inclined to accept the request for quashing the FIR, only by considering their future. If the prosecution still remains, it will come in their peaceful life."
The father of the victim girl had filed a complaint for sexual abuse and sexual harassment of his minor daughter by the applicant. The applicant was consequently accused in a FIR under Section 376 of Indian Penal Code and under Section 4 of the POCSO Act. He was arrested and the police had also filed charge sheet which is pending before the Special Court at Thane.
The victim girl, now a major, filed an affidavit stating that they were in love with each other. Now they have decided to marry after settling in life in their respective careers. Her parents also filed affidavits, giving explanation of misunderstanding while lodging the FIR. They stated to have accepted the friendship between their daughter and the applicant.
The victim girl tried to give an explanation about her statement recorded by the Police and Magistrate. She alleged that she was tutored to give those statements. Without accepting the said explanation, the Judges were inclined to accept the prayer for quashing since both have agreed to marry.
The justices noted that the victim-girl has given a no objection for quashing. They further took note that the applicant is willing to marry with the victim-girl and has given an undertaking to that effect. In view of their prospects, the court quashed the FIR.
Case Title : Nauman Suleman Khan v State of Maharashtra & anr |
1. Rule. Rule made returnable forthwith. By consent
of parties, taken up for hearing immediately.
2. This, petition under Article 227 of the
Constitution of India, assails the order dated 20 th November,
2021 by which the Special Judge stayed the operation of his
own order of grant of bail for 25 days, on a request made by
3. Petitioner-applicant, was granted bail on 20 th
November, 2021 by the Special Court at Greater Bombay in
NIA Special Case No. 1090/2021 in re-registered Crime
No.RC-01/2021/NIA/MUM with National Investigation
Agency for the offences punishable under Sections 120B,
201, 286, 302, 364, 384, 386, 403, 419, 465, 471, 473 and
506 of the Indian Penal Code; Sections 3 and 25 of the Arms
Act, Section 4 of the Explosive Substances Act, 1908 and
Sections 16, 18 and 20 of the Unlawful Activities
(Prevention) Act. After which, the operation of the bail,
order was stayed for 25 days on the following two grounds :
(i) National Investigating Agency, was intending
to assail the order in Appeal before the High
(ii) The Court is empowered to stay its, own order,
of grant of bail, in terms of the provisions of
Section 309(1) of the Criminal Procedure Code.
Reliance was placed on the judgment of the
Bombay High Court in the case of C.P. Nangia,
Assistant Collector V/s. Omprakash Agarwal and
anr., (1994) Cri.Law Journal 2160.
4. Mr. Gupte, learned Senior Counsel for the
petitioner, would challenge the impugned order, on the
(i) That, the Sessions Judge has no powers under
the law to stay the operation of its own order of
(ii) Even assuming that the power to stay bail
order is incidental to power to grant bail, yet the
learned Special Judge has not recorded ‘good
reasons’ to stay his own bail order.
5. Mr. Gupte, submitted that, the learned Judge
could not have taken recourse to Section 309 of the Cr.P.C. to
derive the powers, to stay his own order, in as much as,
provisions of Section 309, relates to and deals with the
general provisions as to ‘enquiry’ and ‘trial’. Mr. Gupte,
submitted that, the power to grant bail is neither an ‘enquiry’
nor a ‘trial’ and therefore the judgment in the case of C.P.
Nangia (supra), could not have been relied upon.
6. Mr. Gupte, on instructions submitted that, though
the bail was granted on 20 th November, 2021, and stay was
sought, to enable the National Investigation Agency to prefer
appeal, till date, the respondents have not preferred Appeal.
It is therefore submitted, the impugned order being non-est
for want of power and jurisdiction, has caused interference
with petitioner’s right to liberty. Mr. Gupte, thus seeks to
quash the impugned order.
7. Mr. Anil Singh, learned Additional Solicitor
General vehemently opposed the petition and contended,
that the writ petition against the impugned order was not
maintainable, and at the most, the petitioner could have
maintained an Appeal under Section 21 of the National
Investigation Agency Act, 2008 (“N.I.A. Act” for short). He
relied on Section 21(4) of the N.I.A. Act which reads as under
“Notwithstanding anything contained in
sub-section (3) of Section 378 of the Code,
an appeal shall lie to the High Court
against an order of the Special court
granting or refusing bail.”
8. Mr. Singh’s contention was that, all matters
‘concerning’ or relatable to ‘bail’, could be assailed only in
appeal and not otherwise. It is therefore submitted that,
since the impugned order was concerning ‘the grant of bail’,
in terms of provisions of Section 21(4) of the N.I.A. Act, only
appeal was maintainable and not the petition under Article
227 of the Constitution of India.
9. In the next place, Mr. Singh submitted that, the
law laid by this Court in the case of C.P. Nangia (supra), has
been followed by the Gujrat High Court in the case of Bishnoi
Balwant Agarwal V/s. State of Gujarat, (2018) 3 GLR 2270.
Mr. Singh has invited my attention to paragraph-11 of the
judgment in the case of Bisnoi (supra), wherein the learned
Judge endorsed his agreement with the view expressed in
“that for the reasons to be recorded,
Magistrate do possess, the power to stay
his own order of grant of bail, if a request
is made by the Public Prosecutor in that
regard.”
. In addition, Mr. Singh learned Additional Solicitor
General, would also rely on the order passed in the case of
Sudha Bharadwaj V/s. National Investigation Agency and
Ors. passed in Criminal Bail Application No. 2024/2021 by
the learned Single Judge of this Court, in support of his
contention that, sub-section (3) of Section 21 of the N.I.A. Act
also encompasses orders ‘concerning’ grant or rejection of
the bail.
10. I have carefully considered the submissions of the
learned Counsel for the parties.
11. In so far as the maintainability of the Writ Petition
is concerned, it may be stated that, the order impugned,
though said to be “relatable” to bail, as argued by Mr. Singh,
however, in terms of provisions of sub-section (4) of Section
21, it is not an order of a Special Court, either ‘granting’ or
‘refusing’ bail. The sub-section (4) envisage two kind of
orders; one ‘granting’ and another ‘refusing’ bail. It does not
specify third kind of order i.e. ‘orders concerning or relating
to bail” (emphasis supplied). Herein, the impugned order,
not being order granting or refusing the bail, obviously it
would not fall under sub-section (4) of Section 21 of the
N.I.A. Act. That for these reasons, contention of the
respondents that, Writ Petition was not maintainable, is
12. In so, far as power of the learned Sessions
Judge to stay his own order of grant of bail is concerned, in
my view, the Code of Criminal Procedure does not empower
the Sessions Judge to stay the operation of his order of grant
of bail. The provision which can be said to be the nearest to
meet the situation is Section 439(2) of the Cr.P.C.,1973.
However, in it’s terms, it only empowers him, to direct any
person who has been released on bail to be arrested and
committed to the custody. No doubt, the High Court in
exercise of its power under Section 482 Cr.P.C. can stay the
operation of bail order where it fnds it necessary to do so, to
prevent abuse of process of the Court or to meet the ends of
justice. Therefore, in my view, the learned Judge could not
have assumed the jurisdiction to stay its own order of grant
of bail by taking recourse to Section 209 of the Cr.P.C. This
being error in exercise of jurisdiction, the petition was
perfectly maintainable. That even otherwise, the learned
Sessions Judge has not justifed the order by recording the
reasons in suspending his own order.
13. In that view of the matter and for the reasons
stated above, the impugned order is quashed and set aside.
The petition is allowed and the Rule is made absolute in
terms of prayer clause-14(b). Petition is disposed of.
14. Mr. Patil’s request for stay of operation of this
order is rejected. | In a significant order, the Bombay High Court has held that a sessions court cannot stay its own order granting bail to an accused under the criminal procedure code."In so far as the power of the learned Sessions Judge to stay his own order of grant of bail is concerned, in my view, the Code of Criminal Procedure does not empower the Sessions Judge to stay the operation of his order of grant...
In a significant order, the Bombay High Court has held that a sessions court cannot stay its own order granting bail to an accused under the criminal procedure code.
"In so far as the power of the learned Sessions Judge to stay his own order of grant of bail is concerned, in my view, the Code of Criminal Procedure does not empower the Sessions Judge to stay the operation of his order of grant of bail," the court observed.Justice SK Shinde
held thus while setting aside the Special NIA court's decision to stay its own order granting
bail to Naresh Gaur, a bookie in the Ambani Terror Scare Case.
The Special NIA court stayed the operation of it's own bail order of November 20, 2021 for 25 days, for two reasons:
1. To allow the NIA time to appeal against the grant of bail in the HC.
2. As it is empowered to stay its own order of grant of bail, in terms of the provisions of Section 309(1) of the Criminal Procedure Code.
The special court relied on the judgment of the Bombay High Court in the case of C.P. Nangia, Assistant Collector V/s. Omprakash Agarwal and Ors (1994) Cri.Law Journal 2160.
Gaur had appealed against the special court's order through a petition under Article 227 of the constitution.
On Wednesday, Justice Shinde allowed his petition and quashed the special court's order refusing his immediate release.
The single judge held that while High Courts can stay the operation of a bail order to meet the ends of justice under section 482 of the CrPC, a sessions court cannot take the recourse of section 309(1) of the CrPC to stay it's own order.
"The provision which can be said to be the nearest to meet the situation is Section 439(2) of the Cr.P.C. 1973. However, in it's terms, it only empowers him, to direct any person who has been released on bail to be arrested and committed to the custody. Therefore, in my view, the learned Judge could not have assumed the jurisdiction to stay its own order of grant of bail by taking recourse to Section 309 of the Cr.P.C. This being error in exercise of jurisdiction, the petition was perfectly maintainable," the judge observed.Holding that there was an error in jurisdiction, the HC rejected the National Investigation Agency's contention that Gaur's petition was not maintainable.
The judge said that, "even otherwise, the learned Sessions Judge has not justified the order by recording the reasons for suspending his own order."The National Investigation Agency led by Additional Solicitor General Anil Singh had vehemently contended that Gaur's petition was not maintainable as it was filed under Article 227 of the constitution. Only an appeal under section 21 of the NIA Act was maintainable, he argued.
However the court said that even though the Special NIA Court's order can be called "relatable" to bail, section 21(4) of the NIA Act only envisages two kinds of orders, one rejecting and the other, granting bail.
"It does not specify third kind of order i.e. 'orders concerning or relating to bail," the court said.
In the present case, the Special NIA court had suspended its own bail order in the roznama. Therefore the petition was maintainable, the High Court held.
"Herein, the impugned order, not being order granting or refusing the bail, obviously it would not fall under sub-section (4) of Section 21 of the N.I.A. Act. That for these reasons, contention of the respondents that Writ Petition was not maintainable, is rejected," Justice SK Shinde observed.
Gaur was arrested on March 13, 2021 and booked under section 120B(conspiracy) and 403( dishonest misappropriation of property). Unlike Waze and six others, Gaur is not booked under the anti-terror Unlawful Activities (Prevention) Act.
He was accused of supplying dummy sim cards used by his co-accused - dismissed cop Sachin Waze and former encounter specialist Pradeep Sharma.
Senior counsel Shirish Gupte along with Advocates Anikat Nikam and Noorain Patel for Diamondwala & Company appeared for Gaur.
Gupta argued that the Judge could not have taken recourse to Section 309 of the Cr.P.C. to stay his own order as the section relates to general provisions as to 'enquiry' and 'trial'.
Grant of bail is is neither an 'enquiry' nor a 'trial' and therefore the judgment in the case of C.P.
Nangia (supra), could not have been relied upon.Moreover, the NIA has still not appealed against the order granting bail to Gaur.
Therefore, for want of power and jurisdiction, the order has caused interference with petitioner's right to liberty.Also Read:
[
Antilia Terror Scare Case] Bombay High Court sets Aside Special NIA Court's Decision Staying It's Own Bail Order For Bookie Naresh Gaur |
This Crl.A has been filed against the order in O.P.
(Adoption). No. 75/2016 dated 15.03.2016 of District Court,
Kollam. According to the learned counsel for the appellant,
respondents 2 and 3 are husband and wife. The 2nd respondent is
the brother of the 2nd appellant and 3rd respondent is the wife of
the 2nd respondent. The respondents 2 and 3 are the biological
parents of Kumari, Maria Johnson aged 8 years old, who is the
4th girl child of the said couple. The appellants are childless
couple; both of them had undergone treatment for infertility for a
long period. Doctors confirmed that it will not be possible for
the appellants to become biological parent of a child. The 2 nd
appellant had to undergo uterus removal surgery. Hence, at
present there is no chance for the 2 nd appellant getting conceived.
Kumari. Maria Johnson is the 4th girl child of the respondents 2
and 3. whileso, the respondents 2 and 3 expressed their
willingness to give in adoption of Kumari. Maria Johnson to the
appellants. Hence, with a view to legalize the entire proceedings,
O.P.(Adoption) No. 75/2016 has been filed by the appellants
before the District Judge, Kollam. By the impugned order, the
learned District Judge dismissed their O.P., finding that the court
has no jurisdiction to entertain or adjudicate the issue of adoption
mooted by the appellants and aggrieved by the same appellants
approach this Court.
2. The learned counsel for the appellants drew my
attention to various provisions of the Juvenile Justice (Care and
Protection of Children) Act, 2015, the Juvenile Justice (Care and
Protection of Children) Rules, 2014 and Adoption Regulations,
3. Heard both sides. Section 2(2) of the Juvenile Justice
(Care and Protection of Children) , 2015 reads as follows:
“'adoption' means the process through which the adopted child is
permanently separated from his biological parents and becomes the lawful child
of his adoptive parents with all the rights, privileges and responsibilities that are
attached to a biological child.”
4. Section 2(23) of the Juvenile Justice (Care and
Protection of Children) Act, 2015 reads as follows:
“Court' means a Civil Court, which has jurisdiction in matters of
adoption and guardianship and may include the District Court, Family Court and
5. Section 2(52) of the Juvenile Justice (Care and
Protection of Children) Act, 2015 reads as follows:
“ 'relative', in relation to a child for the purpose of adoption under this
Act, means a paternal uncle or aunt, or a maternal uncle or aunt, or paternal
grandparent or maternal grandparent.”
6. According to the learned counsel for the appellants,
being the brother's child of the 2 nd appellant, the child supposed
to be adopted will come within the definition of 'relative' defined
under Section 2(52) of the Juvenile Justice (Care and Protection
of Children) Act, 2015. Section 56(2) is also relevant which
“Adoption of a child from a relative by another relative, irrespective of
their religion, can be made as per the provisions of this Act and the adoption
regulations framed by the Authority.”
7. Next the learned counsel drew my attention to
Section 101(5) of the Juvenile Justice (Care and Protection of
Children) Act, 2015 (in short the Act) which deals with the
“Any person aggrieved by an order of the Children's Court may file an
appeal before the High Court in accordance with the procedure specified in the
Code of Criminal Procedure, 1973 (2 of 1974)”
8. So this is the proper forum for entertaining an appeal
against the impugned order. The learned counsel drew my
attention to the provisions of the Juvenile Justice (Care and
Protection of Children) Rules, 2014 ( In short the rules). Rule
40(2) of the Juvenile Justice (Care and Protection of Children)
“For all matters relating to adoption, these rules and guidelines issued
from time to time by the State Government and notified by the State Government
shall apply. In the absence of such rules the guidelines issued by the Central
Adoption Resource Agency and notified by the Central Government under sub-
section (3) of Section 41 of the Act shall apply.”
9. Rule 41(C) of the Juvenile Justice (Care and
Protection of Children) Rules, 2014 deals with the procedure for
“The specialised Adoption Agency along with the prospective adoptive
parent(s) shall file a petition in the Court having jurisdiction for obtaining the
necessary adoption orders under the Act and these Rules within ten days from the
acceptance of referral by prospective adoptive parent(s) and shall take necessary
steps to get the process of legal adoption completed at the earliest.”
10. The learned counsel also drew my attention to the
Adoption Regulations, 2017. Regulation 4 of Adoption
Regulations, 2017 deals with child eligible for adoption reads as
The following shall be eligible for adoption, namely:-
“(a) any orphan or abandoned or surrendered child, declared legally free
for adoption by the Child Welfare Committee;
(b) A child of a relative defined under sub-section (52) of Section 2 of the
(c) child or children of spouse from earlier marriage, surrendered by the
biological parent(s) for adoption by the step-parent.”
11. Regulation 5(7) of Adoption Regulations, 2017 reads
“ The age criteria for prospective adoptive parents shall not be applicable
in case of relative adoptions and adoption by step-parent.”
12. The learned counsel further drew my attention to
Regulation 55 Adoption Regulations, 2017 reads as follows:
“ Legal procedure:- 1)The prospective adoptive
parents, who intend to adopt the child of a relative as defined in
sub-section (52) of Section 2 of the Act, shall file an application
in the competent Court under sub-section 2 of Section 56 of sub-
section (1) of Section 60 of the Act in case of in-country relative
adoption or inter-country relative adoption, respectively,
alongwith a consent letter of the biological parents as provided
in Schedule XIX and all other documents as provided in
2) The biological parent and the step-parent, who
intend to adopt the child or children of the biological parent,
shall file the adoption application as provided in Schedule
XXXII, in the Court concerned of the district where they reside,
along with consent letter of the biological parents and the step-
parent adopting the child or children, as provided in the
Schedule XX and all other documents as provided in Schedule
3) The prospective adoptive parents, in case of
inter-country relative adoption, shall file the adoption
application in the Court concerned of the district, where the
child resides with biological parents or guardians as provided in
4) The prospective adoptive parents shall file an
application in Family Court or District Court or City Civil
Court, as the case may be.
5) Before issuing an adoption order, the Court shall
satisfy itself of the various conditions stipulated under Section
61 of the Act, and Regulations 51 to 56, as the case may be.
6) The prospective adoptive parents shall obtain a
certified copy of the adoption order from the Court and furnish
a copy of the same to the District Child Protection Unit for
online submission to the Authority.”
13. The learned counsel also drew my attention to
Section 27 which is deals with the Child Welfare Committee.
“27(1) The state Government shall by notification in the official gazette
constitute for every district, one or more Child Welfare Committees for exercising
the powers and to discharge the duties conferred on such Committees in relation
to children in need of care and protection under this Act and ensure that
induction training and sensitisation of all members of the committee is provided
within two months from the date of notification.”
14. The learned counsel further takes my attention to
Section 2(14) (iii) of the Act read as follows:
“child in need of care and protection” means a child:-
iii) who resides with a person (whether a graurdian of the child or not) and
a) has injured, exploited, abused or neglected the child or has
violated any other law for the time being in force meant for the protection of
b) has threatened to kill, injure, exploit or abuse the child and there
is a reasonable likelihood of the threat being carried out; or
c) has killed, abused, neglected or exploited some other child or
children and there is a reasonable likelihood of the child in question being killed,
abused, exploited or neglected by that person; or....”
15. The child in question belonged to respondents 2 and
3 and will not come under any of the categories described in
clause 14.
16. In the present case, petitioners are relatives as
provided under Section 2(52) of the Act and the forum for filing
the petition for adoption as per Section 2(23) of the Act include,
District Court, Family Court and City Civil Court. 1 st appellant is
aged 57 years old and the 2 nd appellant is aged 47 years old.
Since the petitioners are relatives, the age bar as prescribed under
the Act will not be applicable under the Regulation 5(7).
17. Appellants have no child inspite of undergoing
various procedures, the doctors certified that there is no chance
for conceivement by the 2nd appellant and her uterus is also
removed and the 2nd respondent is the brother of the 2 nd appellant.
So they come within the definition of 'relatives' as prescribed
under Section 2(52) of the Act. As pers law, procedures and the
rules above prescribed, the appellants are eligible to adopt a
child, who is the 4th girl child of respondents 2 and 3. The
respondents have no objection and have filed a consent letter
too. In the said circumstance, the finding of the learned District
Judge that the court is not a proper forum and they have to
approach the Child Welfare Committee is illegal and perverse.
18. Presently the Family Courts are designated as
Adoption Court as per O.M. No. D12-10890/2016 of the High
Court of Kerala. According to the learned counsel, the
jurisdictional court with respect to the present adoption is Family
In the result, the impugned order passed by the District
Judge, Kollam is set aside and appeal allowed. The District
Court, Kollam is directed to return the records to the petitioners
for presentation before the proper court. Sd/- | The Kerala High Court has recently laid down that the Family Court with the respective territorial jurisdiction is empowered to give a child in adoption.After perusing the provisions of the Juvenile Justice Act 2015, the 2014 Rules framed thereunder and the Adoption Regulations 2017, Justice M.R. Anitha observed:"In the said circumstance, the finding of the learned District Judge that...
The Kerala High Court has recently laid down that the Family Court with the respective territorial jurisdiction is empowered to give a child in adoption.
After perusing the provisions of the Juvenile Justice Act 2015, the 2014 Rules framed thereunder and the Adoption Regulations 2017, Justice M.R. Anitha observed:
"In the said circumstance, the finding of the learned District Judge that the court is not a proper forum and they have to approach the Child Welfare Committee is illegal and perverse."
The appellant couple has been childless despite undergoing various treatments for infertility over the years. Soon after the doctors confirmed that it will not be possible for them to become biological parents, the 2nd appellant had to undergo uterus removal surgery.
Respondents 2 and 3 are husband and wife, who expressed their willingness to give their fourth girl child aged 8 years for adoption. The 2nd respondent is the 2nd appellant's brother.
To legalise the proceedings, a plea was filed by the appellants before the District Judge. However, this was dismissed on the ground that the court had no jurisdiction to entertain or adjudicate upon the issue of adoption and that the parties had to approach the Child Welfare Committee.
Challenging the same, the parties moved the High Court.
Advocates R. Renjith and M.T. Sureshkumar appearing for the appellants drew the Court's attention to several provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015, the Juvenile Justice (Care and Protection of Children) Rules, 2014 and Adoption Regulations, 2017 to present their case.
It was argued that being the niece of the 2nd appellant, the child will come within the definition of 'relative' defined under Section 2(52) of the 2015 Act. This nullifies the condition of the age bar as prescribed under the Act as per Regulation 5(7).
Further, they argued that the forum for filing the petition for adoption as per Section 2(23) of the Act include, District Court, Family Court and City Civil Court.
The respondents represented by Advocate N.N. Girija and Public Prosecutor Sheeba Thomas expressed no objection to the same and had filed a consent letter too.
The Court noted that as per law, the appellants were eligible to adopt the child. Moreover, presently the Family Courts are designated as Adoption Court as per O.M. No. D12-10890/2016 of the High Court of Kerala.
As such, the decision of the District Judge was set aside and the appeal was allowed. The District Court was also directed to return the records for presentation before the proper court.
Case Title: Thomas P. & Anr v. State of Kerala & Ors |
This petition has been filed seeking a direction to the second
respondent to produce the body of the petitioner's father Athikesavan, aged
about 74 years, before this Court and set him at liberty.
2. For the sake of convenience, the characters in this case will be
referred to by their names.
3. One Athikesavan, aged around 72 years, a bangle seller, was living
with his wife Ramathilagam in Door No.38/17, Muthiyaal Reddy Street,
Alandur, Chennai – 600 016. He has three sons and one daughter viz.,
Thulasidass, Nandagopal, Mannivannan and Mahalakshmi, who are living
separately.
4. On 09.06.2020, Adikesavan was feeling a little unwell and therefore,
he went to the nearby Primary Health Centre and undertook Covid-19 test.
On 10.06.2020, he was informed that he was tested positive. In accordance
with the protocol established by the Government, the Corporation authorities
were alerted and one Ms.Divya Rani, Sanitary Inspector, went to the
residence of Adikesavan on 11.06.2020 and made arrangements for taking
him to Ekkattuthangal Urban Primary Health Centre (Division 170), for
further screening. She made arrangements to take Adikesavan by an
ambulance belonging to the Corporation of Chennai and the ambulance driver
was one Raman.
5. Adikesavan was taken to the said Ekkattuthangal Urban Primary
Health Centre along with another patient, by name, Akash Jain. At the
screening centre, Adikesavan was subjected to various medical examinations
and the doctors there felt that home quarantine would not be advisable for
him and therefore, referred him to Government Kilpauk Medical College and
Hospital for admission and treatment.
6. Accordingly, a 108 ambulance was arranged and Adikesavan was
sent to Government Kilpauk Medical College and Hospital on 11.06.2020.
Since Adikesavan did not have a mobile phone, his family members lost track
of him. Since they did not know the whereabouts of Adikesavan, they went
looking out for him at the screening centre and also at Government Kilpauk
Medical College and Hospital, but in vain.
7. Mannivannan, younger son of Adikesavan, went to S-1, St.Thomas
Mount Police Station on 17.06.2020 and gave a complaint saying that the
whereabouts of his father were not known to the family after he was taken
from his house for Covid-19 treatment. Based on the complaint, S-1,
St.Thomas Mount police did not register a regular First Information Report of
8. The disheartened family sent an online complaint on 21.06.2020
through the portal of the Tamil Nadu Police website, which was redirected to
G3, Kilpauk Police Station, where a First Information Report in Crime
No.458 of 2020 was registered for 'man-missing' on 23.06.2020.
9. Thereafter, the St.Thomas Mount police, belatedly, registered a CSR
on 25.06.2020 and assigned CSR No.88/2020 for the petitioner's complaint
dated 17.06.2020.
10. Since the police were not able to trace Adikesavan, Thulasidass,
elder son of Adikesavan, has filed the present Habeas Corpus Petition on
11. On 07.07.2020, it was brought to the notice of this Court that
Adikesavan was taken from Government Kilpauk Medical College and
Hospital to Rajiv Gandhi Government General Hospital and a video clipping
was submitted showing him walking out of the gate of Rajiv Gandhi
Government General Hospital. Therefore, this Court suo motu impleaded the
Inspector of Police, C1 Flower Bazaar Police Station, Chennai, as the third
respondent.
12. On 15.07.2020, this Court impleaded the Commissioner,
Corporation of Chennai, as the fourth respondent and called for a status
report from them.
13. Mr.G.Prakash, the then Commissioner of Greater Chennai
Corporation filed a status report dated 24.07.2020, wherein it is stated as
4) It is submitted that Mr.Adhikesavan had attended the fever camp
conducted at Alandur UPHC by the Respondent Corporation in
Chennai city for treatment of his fever on 9/6/2020. A throat
swab sample for COVID19 was taken on as he was symptomatic.
During that time Mr.Adhikesavan has given a mobile number
9941391821 as his contact number. The test result
Mr.Adhikesavan was found to be positive. As per standard
protocol, the Division Sanitary Inspector Miss Dhivya had called
the mobile number given by Mr.Adhikesavan at the time of
testing, to inform the test result and the activities to be carried
out. The Daughter-in-law of Mr.Adhikesavan, Mrs.Anitha had
attended the call and requested to inform his test result to her and
said that she will convey the message to him. The Sanitary
Inspector requested to inform Mr.Adhikesavan that he was
positive and as per protocol he will be shifted to screening center
for triaging.
5) It is submitted that on 11/6/2020, the Ambulance engaged by the
Greater Chennai Corporation had picked up Mr.Adhikesavan
from his residence and took him to the NSTI COVID screening
centre, Guindy. At the screening center, laboratory investigations
such as Oxygen saturation, temperature, blood investigations and
chest X-ray were done.
6) It is submitted that the Medical officer at the screening centre had
examined the person and lab reports and referred
Mr.Adhikesavan to Government Kilpauk Medical College
Hospital. The patient was taken by 108 Ambulance along with
other patients to Government Kilpauk Medical College Hospital.
It is a routine procedure that the Sanitary Inspector would call the
patients in the evening to ascertain the patient admission status
and follow up. It is submitted that this patient could not be
followed up as he did not carry a mobile phone.
7) It is submitted that after around 5 days, the Sanitary Inspector
had received a phone call from Mr.Manivannan son of
Mr.Adhikesavan asking whereabouts of his father. It is to note
that the blood relatives were also not followed up
8) It is submitted that, the SI has informed to Mr.Manivannan
S/o.Mr.Adhikesavan that his father Mr.Adhikesavan was referred
to Government Kilpauk Medical College Hospital as per the
records of screening centre.
9) It is submitted that around three days after this, Mr.Manivannan,
son of Mr.Adhikesavan had called the Sanitary Inspector in the
late evening to inform that he went to Government Kilpauk
Medical College Hospital to meet his father and his father
Mr.Adhikesavan was not admitted there.
10)It is submitted that, two Sanitary Inspectors went to Government
Kilpauk Medical College Hospital the next day and enquired the
hospital authorities regarding the patient Mr.Adhikesavan. His
name was not found in the admission register at Government
Kilpauk Medical College Hospital Since his name was not in the
admission register, both the SI's went to other hospitals to check
the records there and when they checked the admission details
his name was not found To rule out any unfortunate incident, the
Sanitary Officer of GCC has enquired the mortuary at
Government Hospitals and found that there was no unclaimed
body.
11)It is submitted that, in order to trace the patient the 108
Ambulance records were verified by GCC as the patient was
transported by 108 ambulance. On verification of 108 ambulance
records, it was found that Mr.Adhikesavan was transported from
COVID Screening Centre, NSTI Guindy to Government Kilapuk
Medical College Hospital and from Government Kilpauk
Medical College Hospital he was shifted to Rajiv Gandhi
Government General Hospital as there was overcrowding of
patients in admission desk on that day at Government Kilpauk
12)It is submitted that as a part of continued efforts to trace the
patient by the Greater Chennai Corporation, with the help of
police officials, the CCTV footage was checked. The CCTV
footage has clearly showed that Mr.Adhikesavan was waiting at
Rajiv Gandhi Government General Hospital at 1:00 pm and was
seen crossing the road in front of Rajiv Gandhi Government
General Hospital at 8:30 pm.
13)It is submitted that the Respondent Corporation is given to
understand that the Respondent Police officials are tracking the
case with all available evidence with full and sincere efforts to
trace Mr.Adhikesavan. It is with most humbleness submitted that
with due respect to the affection of the family towards the
missing person, the people responsibility and their cooperation is
much required in this situation.
14)It is submitted that this Respondent Corporation officials will co-
operate with the Respondent Police and the Petitioner in tracing
the missing person Mr.Adhikesavan at any time and day as
required. Though the limits of the Corporation in dealing with the
Covid patient is upto the pick up by 108 Ambulance, the
Corporation Officials are sincerely taking efforts to trace the
missing person. The respondent Corporation is confident that the
person will be traced with the cooperation of Police and the
family members.'
14. On 01.08.2020, the case in G3, Kilpauk PS Crime No.458 of 2020
was transferred to the file of the Inspector of Police, C1 Flower Bazaar Police
Station. On 22.12.2020, the Inspector of Police, C1 Flower Bazaar Police
Station, filed a status report, with which we were not satisfied and hence, we
directed the presence of the Deputy Commissioner of Police, Kilpauk
District, on 25.02.2021. Accordingly, on 25.02.2021, Mr.Saminathan, Deputy
Commissioner of Police, Kilpauk District, appeared before us and we
directed him to supervise the investigation that was conducted by the C1
Flower Bazaar police and directed him to file a status report.
15. Mr.Saminathan, the Deputy Commissioner of Police, filed two
status reports dated 26.04.2021 and 15.06.2021 setting out the steps that
were being taken for tracing Adikesavan.
16. Thus, from the status reports filed by the Commissioner of Greater
Chennai Corporation and the Deputy Commissioner of Police, it is limpid that
Adikesavan underwent Covid-19 test on 09.06.2020 in the local Primary
Health Centre and was tested positive on 10.06.2020; Divya Rani, Sanitary
Inspector, sent him by an ambulance of the Chennai Corporation with one
Raman as driver to the National Skill Training Institute Covid Screening
Centre, Guindy, where the Ekkattuthangal Urban Primary Health Centre was
functioning; Adikesavan underwent the screening test there and on the advice
of the doctors there, he was sent by 108 ambulance, driven by one Rajan to
Government Kilpauk and Medical College Hospital on 11.06.2020; from
there, the same ambulance carried him to Rajiv Gandhi Government General
Hospital, Chennai, for being admitted as an inpatient; thereafter, the
whereabouts of Adikesavan are not known till date except the video clippings
of Rajiv Gandhi Government General Hospital showing Adikesavan walking
out of the hospital gate; when the family members of Adikesavan were shown
the video clippings, they confirmed the person as Adikesavan.
17. The case came up for hearing on 17.08.2021 and based on the
submissions made by the learned State Public Prosecutor, the following order
"Today, Mrs.K.Shobana, Inspector of Police, C-1, Flower
Bazaar Police Station, Mr.P.Saminathan, Superintendent of Police,
Special Security Branch and Ms.Divya, Sanitary Inspector are
present before this Court.
2. On instructions, Mr.Hasan Mohammed Jinnah, learned
Public Prosecutor submitted that an unidentified body resembling by
and large to Adikesavan was found on 03.08.2020 in Egmore area, in
connection with which, a case in Egmore P.S.Crime No.636 of 2020
has been registered on 03.08.2020 under Section 174 Cr.P.C.
3. Mr.Hasan Mohammed Jinnah futher submitted that after
taking the finger prints and other measurements, the body has been
buried by the Egmore police. He also submitted that if the petitioner
appears before the Inspector of Police, C-1, Flower Bazaar Police
Station, the police would take steps to match satisfactorily the
identity of the dead body with that of the missing person Adikesavan
through scientific means.
4. We find sufficient force in the above submission of
Mr.Hasan Mohammed Jinnah. In view of the above, we direct the
petitioner to cooperate with the police for the aforesaid purpose. If
necessary, the police is also permitted to exhume the body for the
purpose of either superimposition or DNA profiling. The revenue
authorities shall also cooperate with the police in this regard.
Post this matter on 14.09.2021."
18. Pursuant to the above order, the matter was once again taken up for
hearing on 22.03.2022 and an additional status report was filed by the
Inspector of Police, C1 Flower Bazaar Police Station, Chennai. Taking note
of the additional status report, the following order was passed by this Court:
"Today, Mr.R.Dhalavoisamy, Inspector of Police, C1 Flower
Bazaar Police Station, Chennai, and Ms.S.Dhivya, Sanitary
Inspector, Alandur [Mobile No.94450 25962] are present.
2. Mr.R.Dhalavoisamy, Inspector of Police, has filed an
additional status report dated 21.03.2022, wherein, it is stated that
the DNA report dated 29.12.2021 showed negative results, in that,
the DNA extracted from the exhumed body did not tally with the
DNA of Thulasidass Adikesavan s/o.Adikesavan.
3. Mr.R.Muniyapparaj, learned Additional Public Prosecutor,
submitted that the police are now trying to find out, if Adikesavan
had died of any rail accident.
At the request of the learned Additional Public Prosecutor,
adjd. to 19.04.2022."
19. The case came up for hearing thereafter on various occasions and
the fact remains that till date, the missing person Adikesavan has not been
traced either dead or alive and the stalemate continues.
20. We do appreciate the fact that the State of Tamil Nadu and the
Greater Chennai Corporation were doing their best to fight the Covid-19 war.
Therefore, we cannot fix the blame on any single officer for the lapse.
However, it would have been in the fitness of things, if the Inspector of
Police, S1, St.Thomas Mount Police Station, had registered a regular First
Information Report of 'man-missing' when the complaint was given to him on
17.06.2020 itself. Instead, the family was made to run from pillar to post and
ultimately, after great persuasion, the First Information Report in Crime
No.458 of 2020 was registered by the Inspector of Police, G3 Kilpauk Police
Station, only on 23.06.2020.
21. It is the grievance of the family of Adikesavan that had the police
acted with alacrity, the police would have been in a position to trace
Adikesavan. We do see sufficient force in the grievance ventilated by the
family of Adikesavan.
22. The Inspector of Police, C1 Flower Bazaar Police Station, Chennai,
is directed to continue with the investigation and take effective steps to find
the whereabouts of the missing person Adikesavan. The Investigation Officer
shall also take note of the guidelines issued by this Court in K.Sukumari v.
The Superintendent of Police, Virudhunagar District, Virudhunagar and
others [2018 (2) LW (Crl) 636], since the pending First Information Report
23. Taking into consideration the overall fact situation, we do not want
to be too harsh on the State Government and instead, on humanitarian ground,
we direct the State to pay a sum of Rs.1,00,000/- [Rupees One Lakh only] as
compensation to the family of Adikesavan within a period of four weeks from
the date of receipt of the copy of this order.
With the above direction, this Habeas Corpus Petition is disposed of. | The Madras High Court on Monday directed the Tamil Nadu government to pay Rs one lakh compensation to the family of a 74-year-old man who has not been found since being taken to a government hospital in June 2020 for COVID-19 treatment.
The division bench of Justice PN Prakash and Justice Anand Venkatesh directed the police to take effective steps to find the whereabouts of the missing person and continue with its investigation in the matter.
"Taking into consideration the overall fact situation, we do not want to be too harsh on the State Government and instead, on humanitarian ground, we direct the State to pay a sum of Rs.1,00,000/- [Rupees One Lakh only] as compensation to the family of Adikesavan within a period of four weeks from the date of receipt of the copy of this order," said the court.
The court was hearing a habeas corpus petition filed by Adikesavan's son in 2020.Adikesavan had tested positive for coronavirus on June 10 in 2020 and next day was taken to Ekkattuthangal Urban Primary Health Centre by an ambulance belonging to the Chennai Corporation. He was then referred to Government Medical College, Kilpauk and thereafter to Rajiv Gandhi Government General Hospital.
Since Adikesavan did not carry a mobile phone, his family could not trace his whereabouts even after enquiring with the testing centre. The petitioner went to St. Thomas Mount police station but the police failed to register a 'man-missing' case. Later, an online complaint was raised based on which the FIR came to be registered.
During the course of the hearing, a video clipping was produced before the court which showed Adikesavan walking out of the gates of Rajiv Gandhi Government General Hospital. Status reports were also filed regarding the efforts being taken by the State to trace Adikesavan.
The court said Tamil Nadu government and Greater Chennai Corporation had done their best to fight the COVID war and no single officer could be blamed for the lapse
At the same time, the court agreed with the submission of the family that had the police registered the FIR in the first instance itself, police would have been able to trace Adikesavan.
"... it would have been in the fitness of things, if the Inspector of Police, S1, St.Thomas Mount Police Station, had registered a regular First Information Report of 'man-missing' when the complaint was given to him on 17.06.2020 itself. Instead, the family was made to run from pillar to post and ultimately, after great persuasion, the First Information Report in Crime No.458 of 2020 was registered by the Inspector of Police, G3 Kilpauk Police Station, only on 23.06.2020," said the court.
Case Title: Thulasidass Adikesavan v. Inspector of Police and others
Case No: H.C.P.No.1149 of 2020 |
1. The petitioner challenges the order dated 30 th November,
2007 passed by respondent No.2, whereby respondent No.2
confirmed the order dated 3rd September, 2016 passed by
respondent No.1 rejecting the application made by the petitioner
for issuance of caste certificate of her caste to her son.
2. The petitioner adopted her son Heramb. The petitioner had
filed Misc. Petition No.168 of 2009 in the City Civil Court, Mumbai
seeking permission for adoption of male child from Children of the
Before adopting the male child from the Trust/Orphanage, he was
known as “Pappu”. Identity of his biological parents was not
known. At the time of the adoption, he was five years old. It is
stated that in terms of the directions issued by the City Civil Court,
Mumbai on 24th December, 2009, the petitioner applied for
registration of birth in the record of the Municipal Corporation. It
was recorded on 13th January, 2010. Birth certificate dated 19 th
January, 2010 came to be issued.
3. It is the case of the petitioner that she is mother of Heramb,
adoptive son. Her caste is “ Hindu Mahyavanshi” recognized as a
scheduled caste. This caste is recorded in all the documents of her
son Heramb. The petitioner applied for issuance of caste certificate
to respondent No.1. Respondent No.1 vide order dated 3 rd
September, 2016 rejected the said application on the ground that
documents of the caste of father of Heramb were not submitted
and, therefore, the petitioner was not entitled to get a caste
certificate. The petitioner being aggrieved by the said order,
challenged the same before respondent No.2 – District Caste
vide order dated 30th November, 2017 dismissed the appeal and
confirmed the order passed by respondent No.1.
4. It is the case of the petitioner that she is a single mother. On
adoption, her son Heramb would take her caste. Since, he is
adopted from orphanage, there was no question of providing
details of his biological parents. The same are not known even to
the orphanage and ultimately to the petitioner. According to the
petitioner, her son Heramb is entitled to take her caste. Order
rejecting her application for issuance of caste certificate by
respondent No.1 and the confirmation of the said order by
respondent No.2 is illegal.
5. Nayab Tehsildar has filed an affidavit on behalf of
respondent No.1 and opposed the claim. It is contended that the
petitioner had not submitted permanent residence proof of father/
grandfather/great grandfather of Heramb prior to the deem date
namely 10th August, 1950. The petitioner had not submitted caste
proof of father/grandfather/great grandfather/cousin grandfather
of child Heramb prior to the deem date i.e prior to 10 th August,
1950. These requirements are mandatory. Since the proof of caste
from parental side was not placed on record, the claim was
6. We have heard Mr. Havnur, learned Counsel for the
petitioner and Ms. Bhende, learned A.G.P, for Respondent-State.
Perused the record and proceeding.
7. Mr. Havnur, learned Counsel for the petitioner submitted
that the order passed by respondent No.1 and confirmed by
respondent No.2 in the facts situation reflects sheer non
application of mind. Learned Counsel submitted that all the
documents including the order passed by the City Civil Court,
Mumbai granting permission for adoption from the orphanage
were placed on record. Learned Counsel submitted that since the
petitioner is the single mother, the adopted child was entitled to
take her caste. In the submission of the learned Counsel, the
reasons recorded for rejection of the application for issuance of
caste certificate by the petitioner are not at all sustainable. In
order to substantiate his submission that in the given set of facts
and circumstances, the child is entitled to take caste of the mother,
the learned Counsel has placed reliance on the decision in the
case of Rameshbhai Dabhai Naika Vs. State of Gujarat and others,
(2012) 3 Supreme Court Cases 425. The learned Counsel
submitted that in view of the ratio laid down in this decision,
orders passed by respondents No.1 and 2 cannot be sustained.
8. Ms. Bhende, the learned A.G.P supported the findings and
reasons recorded by respondents No.1 and 2 while denying the
claim of the petitioner. The learned A.G.P submitted that in terms
of the Government Resolution dated 1st November, 2001, one of
the mandatory conditions for issuance of caste certificate of
backward class category is that the caste record from father’s side
be produced. The learned A.G.P submitted that in this case since
the caste record on the parental side of Heramb was not produced,
the claim was rightly rejected.
9. It is to be noted that the son was adopted from an
orphanage namely Children of the World India Trust. Particulars
with regard to the biological father and mother and their caste
were not available with the Orphanage. Similarly, those particulars
could not be provided to the petitioner and as such placed on
record before the City Civil Court. Considering the fact that the
male child was brought up in the Orphanage, it was not a legal
requirement and, therefore, application of the petitioner for
seeking permission to adopt the child was granted. Copy of the
order passed by the learned Judge of the City Civil Court, Mumbai
was placed on record before respondents No.1 and 2. It has come
on record that in the orphanage, adopted child was known as
“Pappu”. The petitioner named him as “Heramb”. The record
reveals that in terms of the directions issued by the City Civil
Court, Mumbai recorded in the order granting permission for
adoption, the petitioner applied to the Municipal Corporation for
registration of birth of Heramb on 13th January, 2010. It was
registered on 13th January, 2010. His recorded birth date is 8 th
September, 2004 and the petitioner is recorded as his mother.
The petitioner has produced on record the documents to show that
Heramb is her son. It is undisputed that the petitioner is a single
mother. In the backdrop of the above facts, there was no question
of either procurement or production of the documents of the caste
of biological father of the child. Respondents No.1 and 2 have
totally missed this vital aspect in the matter.
10. It is not out of place to mention that the application for
permission to adopt the child was made by the petitioner as per
the Hindu Adoptions and Maintenance Act, 1956 (for short “Act of
1956”). A perusal of the record shows that on being satisfied that
the petitioner has complied with the requisite conditions for a
valid adoption, the City Civil Court accorded the permission. It is
pertinent to note that as per section 9 of the Act of 1956,
particulars of the person capable of giving child in adoption have
been provided. As per sub-section 4 where the parentage of child
is not known, the guardian of the child may give the child in
adoption with the previous permission of the Court to any person
including the guardian himself. It is, therefore, pertinent to note
that orphanage namely Children of the World India Trust at the
relevant time was the guardian of the child. The inquiry before
granting such permission to a guardian has been contemplated
under sub-section 5 of section 9 of the Act of 1956. The Court
during inquiry is required to be satisfied that the adoption will be
for the welfare of the child and the Court has to give consideration
to the wishes of the child having regard to the age and
understanding of the child. A perusal of the order would show
that the learned Judge of the City Court, Mumbai has recorded
satisfaction that the adoption of child by the petitioner will be for
the welfare of the child. It is further pertinent to note that
respondents No.1 and 2 have not taken this provision as well as
provision of section 12 of the Act of 1956 into consideration. The
effects of adoption have been provided under section 12. In our
opinion, section 12 would be relevant in the context of the issue
involved in the petition. As per the provisions of section 12 of the
Act of 1956, by a deeming fiction the adopted child becomes a
child of his or her adoptive father, mother for all purposes with
effect from the date of the adoption. The section further provides
that from the date of adoption, all the ties of the child in the family
of his or her birth by a deeming fiction get severed and replaced by
those created by the adoption in the adoptive family. It is
pertinent to note that the consequences after adoption flowing
from deeming fiction postulated under section 12 may not be
strictly restricted to the cases only when the child is given in
adoption by father or mother. The same would equally apply
where the child is given in adoption by guardian in terms of
section 9, sub-section 4 of the Act of 1956. This analogy is
unavoidable on conjoint reading of section 12 and section 9 sub-
section 4 of the Act of 1956. It is, therefore, seen that on adoption
the child becomes the member of the family of the adoptive
parents in all respect. Such a child would also take the caste of the
adoptive parents. In our opinion, even if the controversy is looked
at from this point of view, it would show that the son of the
petitioner on adoption would be entitled to take her caste. There
was no reason for insisting the petitioner to make the caste record
of his biological parents available inasmuch as the same was not
known and available. In our opinion, this is one more ground to
find fault with the order.
11. The next important question is whether a child can be
permitted to take the caste of his or her mother. In our opinion,
this position is settled in the case of Rameshbhai Dabhai Naika
(supra). Paragraphs 54 and 55 of this decision are relevant for the
purpose. We propose to reproduce the same. The same read as
“54. In view of the analysis of the earlier
decisions and the discussion made above, the
legal position that seems to emerge is that in
an inter-caste marriage or a marriage between
a tribal and a non-tribal the determination of
the caste of the offspring is essentially a
question of fact to be decided on the basis of
determination of caste of a person born of an
inter-caste marriage or a marriage between a
tribal and a non-tribal cannot be determined in
complete disregard of attending facts of the
case.
55. In an inter- caste marriage or a marriage
between a tribal and a non-tribal there may be
a presumption that the child has the caste of
the father. This presumption may be stronger
in the case where in the inter-caste marriage or
a marriage between a tribal and a non-tribal
the husband belongs to a forward caste. But by
no means the presumption is conclusive or
irrebuttable and it is open to the child of such
marriage to lead evidence to show that he/she
to the Scheduled caste/Scheduled tribe. By
father he did not have any advantageous start
deprivations, indignities, humilities and
community to which his/her mother belonged.
Additionally, that he was always treated a
mother belonged not only by that community
but by people outside the community as well”.
12. In our view, the proposition would squarely apply to the
facts of the case in hand. We may state that case of the petitioner
is on better footing than the cases of the children born to the
parents in inter-caste marriage or in the marriage between the
triable and non triable. In case of such children, their caste would
at least be known. Here, in this case, caste is not at all known. In
view of the facts and more particularly the fact that child was
adopted from the orphanage with the permission of the Court, the
child would be entitled to take the caste of the mother. In our
view, if analogy applied by respondents No.1 and 2 is sustained
then it would produce disastrous effects. One of the effects would
be that the child would not get identity of mother and particularly
caste of the mother. He would be without identity throughout his
life. Similarly, very purpose of adopting child by the petitioner
being a single mother would stand frustrated. In our opinion, such
a situation could not be envisaged by law. In our opinion,
respondents No.1 and 2 failed to take note of this fact. The
unwarranted emphasis on the Government Resolution, in our
opinion, is too far-fetched. In such facts situation, Government
Resolution would not be applicable. In view of the facts and
enunciation of the law by the Supreme Court, we are of the
considered opinion that the petition deserves to be allowed. Son of
the petitioner – Heramb is entitled to take caste of his mother.
[1] The petition is allowed.
Mahyavanshi” within a period of two weeks
from the date of receipt of the order.
issued by Respondent No.1 shall be subject
to its being validated in accordance with law
from the date of receipt of the order. | Observing that an adopted child becomes a family member of his adoptive parents "in all respects," the Bombay High Court directed authorities to issue a caste certificate to an 18-year-old based on his mother's scheduled caste identity. The Bench of Justices Sunil Shukre and GA Sanap thus held that an adopted child would be entitled to take the caste identity of his...
Observing that an adopted child becomes a family member of his adoptive parents "in all respects," the Bombay High Court directed authorities to issue a caste certificate to an 18-year-old based on his mother's scheduled caste identity.
The Bench of Justices Sunil Shukre and GA Sanap thus held that an adopted child would be entitled to take the caste identity of his adoptive mother, despite the caste authorities' insistence on making the child's biological father's records available.
Not granting relief would have a disastrous effect, the bench said.
"One of the effects would be that the child would not get identity of mother and particularly caste of the mother. He would be without identity throughout his life. Similarly, very purpose of adopting child by the petitioner being a single mother would stand frustrated. In our opinion, such a situation could not be envisaged by law."
The bench cited section 12 of the Hindu Adoptions and Maintenance Act, 1956 which states that from the date of adoption, all the ties of the child in the family of his or her birth by a deeming fiction get severed and replaced by those created by the adoption in the adoptive family.
"It is, therefore, seen that on adoption the child becomes the member of the family of the adoptive parents in all respect. Such a child would also take the caste of the adoptive parents. In our opinion, even if the controversy is looked at from this point of view, it would show that the son of the petitioner on adoption would be entitled to take her caste."
On September 2016 the collector refused the caste certificate on the grounds that the child's father's caste documents were not submitted.
The single mother, a Doctor had challenged an order of the District Caste Certificate Scrutiny Committee which confirmed the Deputy District Collector's order rejecting her application to issue the caste certificate of her caste to her son.
The mother through her counsel Pradeep Havnur argued that she is a single mother. On adoption, her son Heramb would take her caste. Since, he is adopted from orphanage, there was no question of providing details of his biological parents. The same are not known even to the orphanage and ultimately to the petitioner.
He submitted that the mother had written the child's caste as "Hindu Mahyavanshi," which is a scheduled caste in all his school records. He cited the SC judgement in Rameshbhai Dabhai Naika Vs. State of Gujarat to state that the child is entitled to take caste of the mother.
The AGP argued that as per a 1st November, 2001, GR one of the mandatory conditions for issuance of caste certificate of backward class category is that the caste record from father's side be produced. Therefore, the claim was rightly rejected.
The court agreed with the petitioner's arguments. At the outset the court noted that the child was adopted through an order of the court from an orphanage. Moreover, his biological parent's particulars were not known.
"Considering the fact that the male child was brought up in the Orphanage, it was not a legal requirement and, therefore, application of the petitioner for seeking permission to adopt the child was granted."
The bench relied heavily on provisions of the Hindu Adoptions and Maintenance Act, 1956 by which the child was adopted though an order of the City Civil Court.
"A perusal of the order would show that the learned Judge of the City Court, Mumbai has recorded satisfaction that the adoption of child by the petitioner will be for the welfare of the child."
The court noted that Rameshbhai Dabhai Naika's judgement would squarely apply as the adopted child's case stood on a better footing than the cases of the children born to the parents in inter-caste marriage..as in the latter's case atleast the child's caste would be known.
"The fact that child was adopted from the orphanage with the permission of the Court, the child would be entitled to take the caste of the mother," the court said adding that not granting relief would have a disastrous effect. The authorities failed to take note of the effect of their actions.
"The unwarranted emphasis on the Government Resolution, in our opinion, is too far-fetched. In such facts situation, Government Resolution would not be applicable. In view of the facts and enunciation of the law by the Supreme Court, we are of the considered opinion that the petition deserves to be allowed. Son of the petitioner is entitled to take caste of his mother."
Case Title: Dr. Sonal Pratapsingh Vahanwala v. Deputy District Collector, Dharavi |
The petitioner, who was arrested and remanded to judicial
custody on 23.08.2022 for the offences punishable under Sections 308, 337
of IPC r/w 184, 185 of Motor Vehicles Act, in Crime No.350 of 2022 on the
file of the respondent police, seeks bail.
2. The case of the prosecution is that the petitioner in inebriated
condition, drove his vehicle in a rash and negligent manner and dashed
against the pedestrians, caused injuries and fled away from the scene of
occurrence. Hence the complaint.
3. The learned counsel appearing for the petitioner would submit
that the petitioner is an innocent person. He would further submit that even
as per the prosecution, the victims have been discharged from the hospital.
He would also submit that the petition is in prison from 23.08.2022 and he
has to take care of his family. Hence, he prays for grant of bail to the
petitioner.
Crl.OP.No.21431 of 2022
4. The learned Government Advocate (Crl.Side) appearing for the
respondent opposed to grant bail to the petitioner by stating that the
petitioner, who has driven the vehicle in a rash and negligent manner in a
inebriated condition, had dashed against against three persons and caused
injuries and fled away from the scene of occurrence. He would also submit
that the injured has been discharged from the hospital on 03.09.2022.
5. Heard the learned counsel for the petitioner and the learned
Government Advocate (Crl.Side) for the respondent and perused the
materials available on record.
6. Taking into consideration the facts and circumstances of the
case and the submissions made by the learned counsel for the petitioner, this
Court is inclined to grant bail to the petitioner.
7. Accordingly, the petitioner is ordered to be released on bail on
his executing a bond for a sum of Rs.25,000/- (Rupees Twenty Five
thousand only) with two sureties, for a like sum to the satisfaction of the
learned IV Metropolitan Magistrate, Saidapet, Chennai, and on further
conditions that:
Crl.OP.No.21431 of 2022
[a] the sureties shall affix their photographs and
Left Thumb Impression in the surety bond and the
Magistrate may obtain a copy of their Aadhar card or
Bank pass Book to ensure their identity;
[b] the petitioner shall report before the
respondent Police, every day at 9.00 a.m. and 5.00p.m.,
and he shall distribute the pamphlets against
"Drunken Driving" at the LB Road Junction, Chennai
everyday from 9.00 a.m. to 10.00 a.m. and 5.00 p.m. to
7.00 p.m., for a period of two weeks and thereafter,
report before the respondent Police as and when
[c] the petitioner shall not abscond either during
investigation or trial;
[d] the petitioner shall not tamper with evidence
or witness either during investigation or trial;
[e] On breach of any of the aforesaid conditions,
the learned Magistrate/Trial Court is entitled to take
appropriate action against the petitioner in accordance
with law as if the conditions have been imposed and the
petitioner released on bail by the learned Magistrate/Trial
Court himself as laid down by the Hon'ble Supreme Court
in P.K.Shaji vs. State of Kerala [(2005)AIR SCW
Crl.OP.No.21431 of 2022
[f] If the accused thereafter abscond, a fresh FIR
can be registered under Section 229A IPC.
Crl.OP.No.21431 of 2022 | The Madras High Court recently set a unique condition for bail for a man accused of drunken driving. While granting bail, the bench of Justice AD Jagadish Chandira, directed the petitioner Deepan to distribute pamphlets against "Drunken Driving" everyday in the morning and evening for a period of two weeks. The petitioner shall report before the respondent Police, every day at 9.00...
The Madras High Court recently set a unique condition for bail for a man accused of drunken driving. While granting bail, the bench of Justice AD Jagadish Chandira, directed the petitioner Deepan to distribute pamphlets against "Drunken Driving" everyday in the morning and evening for a period of two weeks.
The petitioner shall report before the respondent Police, every day at 9.00 a.m. and 5.00p.m., and he shall distribute the pamphlets against "Drunken Driving" at the LB Road Junction, Chennai everyday from 9.00 a.m. to 10.00 a.m. and 5.00 p.m. to 7.00 p.m., for a period of two weeks and thereafter, report before the respondent Police as and when required;
Deepan was arrested and remanded to judicial custody on 23rd August for drunken driving and for causing hurt. Deepan, in an inebriated state, had driven the vehicle in a rash and negligent manner causing injuries to the pedestrians and then fled away from the scene of occurrence.
While seeking bail, the petitioner contended that he was an innocent man. It was also brought to the attention of the court that the victims had been discharged from the hospital. Further, the petitioner had been in prison since 23rd August and had to take care of the family. The state vehemently opposed the grant of bail.
After considering the facts and circumstances, the court was inclined to grant bail on certain conditions.
Case Title: Deepan v State
Case No: Crl OP No. 21431 of 2022 |
1. By this petition, petitioner challenges the order dated 9 th July, 2021
passed by the learned CMM, Patiala House Courts whereby the bail granted
to the petitioner vide order dated 23rd December, 2019 was cancelled by the
learned CMM. Though in the prayer clause the petitioner has also sought
quashing of the proceedings initiated by the respondent under Section 67/70
of Central Goods and Services Tax Act, 2017 (in short ‘CGST’) as also the
release of the records seized from the various premises of the petitioner,
however, during the course of arguments the petitioner pressed prayers (a),
(b) and (c) in the present petition, that is, setting aside of order dated 9 th
July, 2021 cancelling the bail of the petitioner and restoring the order dated
23rd December, 2019 granting regular bail to the petitioner.
2. Briefly the case of the prosecution against the petitioner is that the
petitioner is one of the Directors/key persons in M/s Brilliant Metals Pvt.
Ltd., M/s.Progressive Alloys India Pvt. Ltd. and M/s JBN Impex Pvt. Ltd.
and allegedly the mastermind behind devising a mechanism of availing
Input Tax Credit (in short ‘ITC’) on the strength of bills of various suppliers
which were non-existing and fictitious and thus availed fraudulent ITC
worth ₹27.05 crores which he further passed on. Further the total ITC
availed by the petitioner in the three companies mentioned above was
totalling to ₹260 crores.
3. After the arrest, the petitioner was granted regular bail vide order
dated 23rd December, 2019 on his furnishing a personal bond in the sum of
₹1 lakh with one surety of the like amount further subject to the following
1. He shall deposit the amount of ₹2,70,00,000/- with the
complainant department latest by 06.01.2020.
2. he will join the investigation with the IO as and when
required.
3. he shall not tamper with evidence or influence any witness in
any manner whatsoever.
4. he shall appear before the court on each and every date of
hearing.
5. he shall not leave the country without prior permission of the
court.
4. In respect of condition No.1 of deposit of amount of ₹2.70 crores, the
petitioner deposited ₹1.10 crores through cash ledger and ₹1.60 crores by
way of debiting/reversals through electronic ITC ledger.
5. According to the respondent as also the impugned order since the ITC
availed were through fraudulent means and thus the entire ITC claimed by
the companies were under cloud, therefore, the petitioner could not have
furnished ₹1.60 crores by reversal of the ITC as a condition of bail.
6. Learned Trial Court further held that the petitioner never took prior
permission of the Court to deposit the amount of ₹1.60 crores through
reversal of credit from electronic ledger and merely placed the compliance
by way of challans before the Court on 21st January, 2020 whereafter the
respondent filed an application dated 24th January, 2020 seeking cancellation
of bail of the petitioner.
7. Even as per the case of the respondent the investigation carried out till
now reveals availment of fraudulent ITC worth ₹27.05 crores and the total
amount of ITCs availed by the petitioner is ₹260 crores. Thus it is not the
case of respondent that ITCs worth approximately ₹232.95 crores are
fraudulent. Thus the short issue in the present petition is whether in respect
of the condition of deposit of amount of ₹2.70 crores which was a condition
for grant of bail the petitioner could have deposited part amount through the
8. Though not stated before the Trial Court or in reply before this Court,
during the course of arguments learned counsel for respondent stated that
besides ₹27.05 crores of ITC availed in the present case, the petitioner have
been found to have availed fraudulent ITC worth ₹15 crores which are
pending investigation by DGGI, Meerut. Thus even as per the case of the
respondent till date beyond approximately ₹42 crores of ITCs, the rest of the
ITC have not been found to be fraudulent based on the invoices from non-
existing suppliers.
9. Learned counsel for the petitioner submits that form GST-DRC-03
issued under Rule 142(2) and 142(3) of the GST Rules permit deposit of
amount through cash/credit of the ITC ledgers. Further Section 49 (4), (5)
and (6) of the GST Act reads as under:
“Section 49 –Payment of tax, interest, penalty and other
amounts.-
(4) The amount available in the electronic credit ledger may be
used for making any payment towards output tax under this Act or
under the Integrated Goods and Services Tax Act in such manner
and subject to such conditions and within such time as may be
prescribed.
(5) The amount of input tax credit available in the electronic
credit ledger of the registered person on account of-
(a) integrated tax shall first be utilised towards payment of
integrated tax and the amount remaining, if any, may be
utilised towards the payment of central tax and State tax, or
as the case may be, Union territory tax, in that order;
(b) the central tax shall first be utilised towards payment of
central tax and the amount remaining, if any, may be utilised
towards the payment of integrated tax;
(c) the State tax shall first be utilised towards payment of State
tax and the amount remaining, if any, may be utilised towards
payment of integrated tax:
[Provided that the input tax credit on account of State
tax shall be utilised towards payment of integrated tax only
where the balance of the input tax credit on account of
central tax is not available for payment of integrated tax;]
(d) the Union territory tax shall first be utilised towards payment
of Union territory tax and the amount remaining, if any, may
be utilised towards payment of integrated tax:
[Provided that the input tax credit on account of Union
territory tax shall be utilised towards payment of integrated
tax only where the balance of the input tax credit on account
of central tax is not available for payment of integrated tax;]
(e) the central tax shall not be utilised towards payment of State
tax or Union territory tax; and
(f) the State tax or Union territory tax shall not be utilised
towards payment of central tax.
(6) The balance in the electronic cash ledger or electronic credit
ledger after payment of tax, interest, penalty, fee or any other
amount payable under this Act or the rules made thereunder may be
refunded in accordance with the provisions of section 54.”
10. Rule 86(2) of the CGST Rules, 2017 reads as under:
(2) The electronic credit ledger shall be debited to the extent of
discharge of any liability in accordance with the provisions of
Section 49 [or Section 49A or Section 49B].”
11. Further Rule 86A which was introduced on 26th December, 2019 in
the Act provides for the conditions of use of amount available in electronic
credit ledger as under:
“Rule 86A. Conditions of use of amount available in electronic
credit ledger- (1) The Commissioner or an officer authorised by
him in this behalf, not below the rank of an Assistant Commissioner,
having reasons to believe that credit of input tax available in the
electronic credit ledger has been fraudulently availed or is ineligible
a) the credit of input tax has been availed on the strength of tax
invoices or debit notes or any other document prescribed under
(i) issued by a registered person who has been found non-
existent or not to be conducting any business from any
place for which registration has been obtained; or
(ii) without receipt of goods or services or both; or
b) the credit of input tax has been availed on the strength of tax
invoices or debit notes or any other document prescribed under
rule 36 in respect of any supply, the tax charged in respect of
which has not been paid to the Government; or
c) the registered person availing the credit of input tax has been
found non-existent or not to be conducting any business from
any place for which registration has been obtained; or
d) the registered person availing any credit of input tax is not in
possession of a tax invoice or debit note or any other document
prescribed under rule 36,
may, for reasons to be recorded in writing, not allow debit of an
amount equivalent to such credit in electronic credit ledger for
discharge of any liability under section 49 or for claim of any refund
of any unutilised amount.
(2) The Commissioner, or the officer authorised by him under
sub-rule (1) may, upon being satisfied that conditions for
disallowing debit of electronic credit ledger as above, no longer
exist, allow such debit.
(3) Such restriction shall cease to have effect after the expiry of a period
of one year from the date of imposing such restriction.”
12. Thus a reading of Section 49 of GST Act permits availing of the
amount in electronic ledger for making any payments towards output tax
under the Act or under the Integrated Goods and Services Tax Act. Further
Section 49 (5) and (6) describes the manner in which the amount of input tax
credit available in the electronic ledger is to be utilised and provides that the
balance in electronic cash ledger after payment of tax, interest, penalty, fee
etc. may be refunded in accordance with the provisions of Section 54 of the
13. Though before the learned CMM and in the reply, the case of the
respondent is that the ITCs being fraudulent the same cannot be availed of,
during the course of arguments, learned counsel for the respondent does not
dispute that the payment of tax could be made from the electronic ledger
under Section 49 (4) of the GST Act however, contends that since the
learned Trial Court directed the petitioner to deposit the amount of ₹2.70
crores, he could not have availed the amount of ₹1.60 crores by debiting the
14. As noted above, the petitioner has to his credit ITC worth ₹260 crores
and the investigation does not show that beyond approximately ₹42 crores
ITCs rest are fraudulent till now. Hence the reversal of the ITC credit for
depositing the part amount of ₹2.70 crores with the department as directed
by the learned Trial Court cannot be said to be illegal or unwarranted,
warranting cancellation of the bail granted to the petitioner.
15. Undoubtedly, non-compliance of the conditions of bail is a ground for
cancellation of the same however, in the present case the condition was to
deposit a sum of ₹2.70 crores with the department which stands satisfied by
the petitioner depositing part amount by transfer of ITCs. Further in case
the learned Trial Court felt that its order warranted deposit of money only
with the department it could have granted time to the petitioner to deposit
the same. The petitioner having fulfilled the condition of deposit of the
amount partly by cash ledger and partly by debit ledger of the ITC it cannot
be said that the petitioner has failed to fulfil the conditions imposed on him.
16. Consequently, the impugned order dated 9th July, 2021 passed by the
learned CMM, Patiala House Court is set aside.
17. Petition and application are disposed of.
18. Judgement be uploaded on the website of this Court. | The Delhi High Court bench of Justice Mukta Gupta has ruled that the bail amount can be paid by cash ledger and debit ledger of the Input Tax Credit (ITC).
It has been alleged by the department that the petitioner is one of the directors/key persons in M/s Brilliant Metals Pvt. Ltd., M/s Progressive Alloys India Pvt. Ltd. and M/s JBN Impex Pvt. Ltd. and allegedly the mastermind behind devising a mechanism of availing ITC on the strength of bills of various suppliers which were non-existing and fictitious, thus availing fraudulent ITC worth Rs. 27.05 crores, which he further passed on. The petitioner received a total of Rs. 260 crores in ITC from the three companies.
The petitioner was granted regular bail on furnishing a personal bond in the sum of Rs. 1 lakh with one surety.
In respect of the condition of deposit of Rs. 2.70 crores, the petitioner deposited Rs. 1.10 crores through cash ledger and Rs. 1.60 crores by way of debits and reversals through electronic ITC ledger.
According to the department, since the ITC was made available through fraudulent means and thus the entire ITC claimed by the companies was under cloud, the petitioner could not have furnished Rs. 1.60 crores by reversal of the ITC as a condition of bail.
The CMM while cancelling the bail held that the petitioner never sought prior permission of the Court to deposit the amount of Rs. 1.60 crores through reversal of credit from the electronic ledger and merely placed the compliance by way of challans before the Court on January 21, 2020, after the respondent filed an application seeking cancellation of bail of the petitioner.
The petitioner has challenged the cancellation of bail on the grounds that form GST-DRC-03, issued under Rules 142(2) and 142(3) of the GST Rules, permits deposit of an amount through cash or credit of the ITC ledgers.
Section 49 of the GST Act permits availing of the amount in an electronic ledger for making any payments towards output tax under the Act or under the Integrated Goods and Services Tax Act. Section 49 (5) and (6) describes the manner in which the amount of input tax credit available in the electronic ledger is to be utilised and provides that the balance in the electronic cash ledger after payment of tax, interest, penalty, fee etc. may be refunded in accordance with the provisions of Section 54 of the GST Act.
The court, in quashing the bail order, held that non-compliance with bail conditions is a ground for cancellation of the same; however, in the present case, the condition was to deposit a sum of Rs. 2.70 crores with the department, which was satisfied by the petitioner depositing a portion of the amount through the transfer of ITCs. the trial court felt that its order warranted deposit of money only with the department and could have granted time to the petitioner to deposit the same. The petitioner having fulfilled the condition of deposit of the amount partly by cash ledger and partly by debit ledger of the ITC, it cannot be said that the petitioner has failed to fulfil the conditions imposed on him.
Case Title: Amit Gupta Vs Directorate General of GST Intelligence Headquarters
Dated: 29.04.2022
Counsel For Petitioner: Advocate Rajesh Jain
Counsel For Respondent: Sr. Standing Counsel Harpreet Singh |
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