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2020 (12) TMI 1397 - JAMMU AND KASHMIR HIGH COURT
Seeking grant of bail (successive bail application) - Smuggling - Herion (Chitta) - illicit trade of sale and purchase of narcotic substance - offences under Sections 8/21/22 NDPS Act - whether or not successive bail applications will lie before this Court? - HELD THAT:- The law on this issue is very clear that if an earlier application was rejected by an inferior court, the superior court can always entertain the successive bail application.
There is no dispute to the fact that the quantity of contraband recovered from the possession of the petitioner does not fall within the parameters of commercial quantity and that the same is an intermediary one. The rigor of Section 37 of NDPS Act, therefore, is not attracted to the instant case. The bail petition of the petitioner is, as such, required to be considered on the touchstone of the principles governing grant of bail under Section 437 of Cr. P. C. - It is a settled position of law that grant of bail is a rule whereas its refusal is an exception. The question whether bail should be granted in a case has to be determined on the basis of the facts and circumstances of that particular case.
The quantity of contraband allegedly recovered from the accused does not fall within the parameters of 'commercial quantity' and in view of the same is intermediary one. The rigor of Section 37 of the NDPS Act thus does not come into play. The observation of learned trial court while rejecting the bail application of the petitioner that the offence alleged to have been committed by the petitioner is serious in nature and the same affects the society in general and the young generation in particular, cannot be the sole reason for rejection of the bail application, particularly when the allegations are yet to be established. Allowing the petitioner to remain in custody because of the reason that the offences alleged to have been committed by him are serious in nature, would amount to inflicting pre-trial punishment upon him.
The respondents have not placed on record anything to show that the petitioner is habitual offender or that he has previously been either implicated or convicted of similar offences. It is not the case of the respondents that any further recovery is to be effected from the petitioner. As per the status report filed by the respondents, the challan has already been filed before the trial Court. Thus, further incarceration of the petitioner in the instant case cannot be justified. If the petitioner is not enlarged on bail, it may also have an adverse impact on his preparation of defence against the charges that have been laid against him before the learned trial court. The discretion regarding grant or refusal of bail cannot be exercised against the petitioner on the basis of public sentiments or to teach him a lesson as his guilt is yet to be proved.
The petitioner is admitted to bail subject to the conditions imposed - petition allowed.
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2020 (12) TMI 1394 - SUPREME COURT
Seeking grant of anticipatory bail - illegal abduction - delay in lodging FIR - HELD THAT:- Number of submissions have been made by the learned counsel appearing on behalf of the appellant-accused on political vendetta, malafide, delay in lodging the FIR, even the maintainability of the impugned FIR etc. However, taking into consideration that the quashing petition filed by the appellant-accused is pending before this Court and the issue whether the FIR/criminal proceedings are required to be quashed or not is at large before this Court, it is not proposed to elaborately deal with all the submissions made by the learned counsel appearing on behalf of the respective parties.
However, considering the fact that the impugned FIR has been lodged/filed by the brother of the deceased after a period of almost 29 years from the date of incident and after a period of 9 years from the date of decision of this Court in the case of Davinder Pal Singh Bhullar [2011 (12) TMI 656 - SUPREME COURT] and nothing is on record that in between he had taken any steps to initiate criminal proceedings and/or lodged an FIR, it is opined that at least a case is made out by the appellant for grant of anticipatory bail under Section 438, Cr.P.C. Many a time, delay may not be fatal to the criminal proceedings.
This Court reserved the liberty in favour of the father of the deceased to take recourse to fresh proceedings by specifically observing that if permissible in law. It is reported that the father of the deceased died in the year 2014. Till 2014, the father of the deceased did not initiate any fresh proceedings. After a period of 9 years from the date of decision of this Court in the case of Davinder Pal Singh Bhullar, all of a sudden, now the informant – brother of the deceased has woken up and has initiated the present criminal proceedings. Whether the fresh/present proceedings are permissible in law are yet to be considered by this Court in the pending proceedings for quashing the impugned FIR.
Looking to the status of the appellant and it is reported that he has retired in the year 2018 as Director General of Police, Punjab after 30 years of service and the alleged incident is of the year 1991 and even in the present FIR initially there was no allegation for the offence under Section 302 IPC and the allegations were only for the offences under Sections 364, 201, 344, 330, 219 and 120B of the IPC, for which there was an order of anticipatory bail in favour of the appellant and subsequently the offence under Section 302 IPC has been added on the basis of the statements of Jagir Singh and Kuldip Singh – approvers only, it is opined that the appellant has made out a case for anticipatory bail.
The impugned judgment and order passed by the High Court, as well as, the learned Additional Sessions Court dismissing the anticipatory bail applications of the appellant for the offence punishable under Section 302 IPC in connection with FIR No. 77 dated 6.5.2020, registered at P.S. City Mataur, District S.A.S. Nagar, Mohali are hereby quashed and set aside - petition allowed.
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2020 (12) TMI 1393 - GUJARAT HIGH COURT
Seeking grant of regular bail - entitlement of benefit of parity - HELD THAT:- Taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused, without discussing the evidence in detail, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail.
The applicant is ordered to be released on regular bail in connection with FIR being C.R. No. 11993005200314 of 2020 registered with Adesar Police Station, District Kutch-Gandhidham (East) on executing a personal bond of Rs. 10,000/- with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions imposed - application allowed.
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2020 (12) TMI 1392 - GUJARAT HIGH COURT
Grant of regular bail - seeking benefit of parity - HELD THAT:- Perusing the material placed on record and taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused, without discussing the evidence in detail, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail.
The applicant is ordered to be released on regular bail subject to the conditions imposed - application allowed.
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2020 (12) TMI 1391 - KARNATAKA HIGH COURT
Seeking direction to consider the representation dated 1.8.2019 by the petitioner’s husband - HELD THAT:- The writ petition is disposed of directing the second respondent, the Tahsildar, Kanakapura Taluk, Ramanagar District, to consider the representation of the petitioner’s husband and take suitable action in accordance with law within eight weeks from the date of receipt of a certified copy of this order.
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2020 (12) TMI 1390 - SUPREME COURT
Seeking the quashing of the allotment of the contract in favour of the Appellant - fulfilment of Condition No. 27 of the N.I.T. of holding work experience of at least 5 years or not - HELD THAT:- In a series of judgments, this Court has held that the authority that authors the tender document is the best person to understand and appreciate its requirements, and thus, its interpretation should not be second-guessed by a court in judicial review proceedings.
Insofar as Condition No. 27 of the N.I.T. prescribing work experience of at least 5 years of not less than the value of Rs. 2 crores is concerned, suffice it to say that the expert body, being the Tender Opening Committee, consisting of four members, clearly found that this eligibility condition had been satisfied by the Appellant before us. Without therefore going into the assessment of the documents that have been supplied to this Court, it is well settled that unless arbitrariness or mala fide on the part of the tendering authority is alleged, the expert evaluation of a particular tender, particularly when it comes to technical evaluation, is not to be second-guessed by a writ court.
Also, the argument that the Appellant has submitted work experience certificates in the name of “Galaxy Agencies”, which is a separate entity from “Galaxy Transport Agency”, has not been argued either before the Single Judge or before the Division Bench. In this circumstance, we reject this point also.
The Division Bench’s judgment dated 16.10.2020 is therefore set aside and the learned Single Judge’s judgment dated 30.06.2020 is restored - Appeal disposed off.
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2020 (12) TMI 1388 - ORISSA HIGH COURT
Benefit of extension of superannuation age to 65 like the AYUSH doctors - HELD THAT:- Though the petitioner is functioning as Researcher under the Research Council/National Institute, but as requirement for upgrading the research skill, he treats patients in the OPD and IPD. In fact, he performs similar nature of duties like AYUSH doctor. Though his service condition is covered by different laws, but for all practical purposes, the petitioner is performing like a doctor. Though there is a clear-cut distinguishing features between the AYUSH doctor and that of the petitioner. The petitioner herein is also treating the patients like AYUSH doctors in OPDs and IPDs on regular basis.
The learned CAT, Cuttack Bench, Cuttack has failed to consider the petitioner’s duty and devotion in treating the OPD and IPD patients. Hence, the order dated 02.11.2020 passed by the learned CAT, Cuttack Bench, Cuttack is liable to be quashed and accordingly, it is quashed.
This Writ Petition is accordingly allowed and pending applications, if any, stand disposed of.
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2020 (12) TMI 1387 - BOMBAY HIGH COURT
Prayer for initiating contempt proceedings against respondent No. 1, who is Civil Judge, Junior Division and Judicial Magistrate First Class, Chiplun, District Ratnagiri - allegation of disregarding the binding precedents of the Superior Courts - HELD THAT:- The respondent No. 1 has already been summoned by this Court on the administrative side and has been properly counseled pursuant to the similar complaint of the petitioner. It appears that respondent No. 1 has been properly and suitably counseled on the administrative side of the High Court.
We hope and trust that in future respondent No. 1 will exercise his judicious mind while dealing with judicial work with greater care, caution and circumspection.
Contempt Petition stands disposed of.
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2020 (12) TMI 1386 - HIMACHAL PRADESH HIGH COURT
Cancellation of process of determining roster, undertaken by Sub Divisional Officers (Civil) in District Hamirpur, on the ground that said process was not in conformity with Rule 10 of Election Rules and provisions of the Act - HELD THAT:- Election Rule 10 prescribes the Deputy Commissioner as an authority who shall issue notice under Rule 10 (8) and who shall give wide publicity with respect to reservation made by him under Rule 10(11). Deputy Commissioner is Officer who is also District Election Officer (Municipalities) under Rule 32(1) of Himachal Pradesh Municipal Election Rules, 2015 and he has no authority to delegate his powers conferred upon him under Rule 10 of Election Rules. Therefore, he was not empowered to appoint or depute SDO (Civil) to undertake the process under Rule 10 of Election Rules. Therefore, his action authorizing SDO (Civil) to undertake process under Rule 10 was contrary to law.
In order to attract Section 18 of the Himachal Pradesh General Clauses Act, SDO (Civil), subordinate to Deputy Commissioner at the time of undertaking the process under Rule 10 of Election Rules, must be lawfully performing the duties of the office of Deputy Commissioner as District Election Officer (Municipalities). In present case while undertaking the process under Rule 10 of Election Rules, SDO (Civil) was not working as a subordinate lawfully performing the duties of office of Deputy Commissioner, nor he could be, as Deputy Commissioner acting as District Election Officer (Municipalities) was not empowered to delegate his powers as District Election Officer and appoint his subordinate to exercise his function.
It is settled position of law that power to do includes the power to undo. As provided under Section 20 of Himachal Pradesh General Clauses Act, power to make an order includes power to add to, amend, vary or rescind the said order. Therefore, Deputy Commissioner by passing impugned order dated 27.8.2020 has not exceeded his jurisdiction, rather has acted lawfully in order to rectify his mistake and to correct the wrong, as Act and Rules do not empower him to delegate his power to his subordinates and to authorize SDO (Civil) to undertake process under Rule 10 of Election Rules.
As the authority to undertake the process under rule 10 of Election Rules was illegal and contrary to law, therefore, process for reservation and rotation of seats undertaken by SDO (Civil) was also illegal, null and void and, therefore, cancellation thereof by Deputy Commissioner does not warrant any interference.
There is nothing on record to substantiate the plea of the petitioner that Deputy Commissioner has acted malafide or impugned action is violative of Article 14 of the Constitution of India. For discussion hereinabove, his action and decision cannot be said to be arbitrary or contrary to law, hence warrants no interference.
Petition dismissed.
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2020 (12) TMI 1384 - KERALA HIGH COURT
Suit for damages alleging medical negligence filed by the young man - any injury was caused to the plaintiff or not - person negligent - quantum and the person liable to pay the compensation.
Whether the plaintiff pleaded the material facts to constitute negligence? - HELD THAT:- Order 6 rule 2 of the Code of Civil Procedure, 1908, states that every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading, relies for his claim or defense, as the case may be, but not the evidence by which they are to be proved. As observed by Courts, far too often, pleadings are to be interpreted not with formalistic rigour but with the full awareness of the legal literacy levels of the litigants and also the nature of the case - The purpose of pleadings is to intimate the opposite party about the nature of the case that is set up against him.
The pleadings in the plaint, in the instant case, constitute sufficient material pleading, to put the defendants in the knowledge of the case of the plaintiff. The point is answered accordingly.
Whether Ext. B1 is admissible in evidence? - HELD THAT:- There are four stages before a Court of law can rely upon a document. They are (i) marking of a document, (ii) admissibility of a document, (iii) proof of contents of the document, and (iv) evaluation of the document. Reliance upon a document can be made by the court only if all the above four stages are complied with or satisfied. By the mere marking of a document, it does not become admissible in evidence. Further, the marking of a document and being admissible in evidence, will still not render the contents of a document as 'proved'. When a document, admissible in evidence, is marked, still to be relied upon by the courts, its contents will have to be proved. For the contents of a document to have a probative value, the person who wrote the contents or is aware of the contents and its veracity must be invited to give evidence about it - The finding of the learned Sub Judge, that Ext. B1 is inadmissible in evidence, is correct and justified in the circumstances and therefore, warrants no interference.
Whether the defendants were negligent during the surgery resulting in injury to the plaintiff and whether the plaintiff is entitled to claim damages? - HELD THAT:- It may be of relevance to refer to Ext. B1(a) which is the photocopy of the consent given by the plaintiff for the surgery. Even though the said document has many of the flaws that could be attributed to Ext. B1, still, since the signature in Ext. B1(a) is admitted, the same is looked into for the limited purpose of identifying the possible mishaps which were in contemplation for which consent was given. In none of the possible outcomes referred to in Ext. B1(a), is there a complication referred to or mentioned, of the nature that occurred to the plaintiff. The disability now suffered by the plaintiff is not seen referred to as an expected complication from a procedure of this nature. This also indicates that it is not a normal complication that has occurred to the plaintiff. Thus by the application of the principle of res ipsa loquitor, the defendants alone could have answered or explained the allegation of negligence. In the nature of the evidence adduced, the defendants have failed to prove the absence of negligence. The findings of the learned Sub Judge regarding the negligence of the defendants was perfectly justified in the facts and circumstances of the case and calls for no interference in this appeal. Hence the point is held in favour of the plaintiff and against the defendants.
Whether the damages awarded by the Subordinate Judges Court, Thiruvananthapuram, require interference, If so to what extent? - HELD THAT:- The learned Counsel for the appellant had fairly submitted that the appellants are not challenging the quantum of damages awarded. Having stated so, in the absence of any challenge against the quantum of damages awarded, the judgment of the Principal Subordinate Judge's Court, Thiruvananthapuram affirmed.
Appeal dismissed.
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2020 (12) TMI 1380 - SUPREME COURT
Error in entertaining the application Under Section 482 Code of Criminal Procedure - locus standi to file a petition Under Section 482 Code of Criminal Procedure.
It is submitted that the High Court without issuing any notice to the Appellant who was an Accused in the trial and was impleaded as Respondent No. 2 in 482 Code of Criminal Procedure application passed the order.
HELD THAT:- It is well settled that criminal trial where offences involved are under the Prevention of Corruption Act have to be conducted and concluded at the earliest since the offences under Prevention of Corruption Act are offences which affect not only the Accused but the entire society and administration. It is also well settled that the High Court in appropriate cases can very well Under Section 482 Code of Criminal Procedure or in any other proceeding can always direct trial court to expedite the criminal trial and issue such order as may be necessary. But the present is a case where proceeding initiated by Respondent No. 2 does not appear to be a bona fide proceeding. Respondent No. 2 is in no way connected with initiation of criminal proceeding against the Appellant.
The present is not a case where prosecution or even the employer of the Accused have filed an application either before the trial court or in any other court seeking direction as prayed by Respondent No. 2 in his application Under Section 482 Code of Criminal Procedure.
Locus of a third party to challenge the criminal proceedings or to seek relief in respect of criminal proceedings of Accused - HELD THAT:- The issue had been dealt with by this Court in THE JANATA DAL AND OTHERS ETC. VERSUS HS. CHOWDHARY AND OTHERS ETC. [1991 (8) TMI 290 - SUPREME COURT]. In the above case the CBI had registered FIR under the Indian Penal Code as well as under the Prevention of Corruption Act, 1947 against 14 Accused. On an application filed by the CBI the learned trial Judge allowing the application to the extent that a request to conduct necessary investigation and to collect necessary evidence which can be collected in Switzerland holding that the application of the CBI is allowed to the extent that a request to conduct the necessary investigation and to collect necessary evidence which can be collected in Switzerland and to the extent directed in this order shall be made to the Competent Judicial Authorities of the Confederation of Switzerland through filing of the requisite/proper undertaking required by the Swiss law and assurance for reciprocity.
Respondent No. 2 has no locus in the present case to file application Under Section 482 Code of Criminal Procedure asking the Court to expedite the hearing in criminal trial.
The application filed by Respondent No. 2 Under Section 482 Code of Criminal Procedure is dismissed - appeal allowed.
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2020 (12) TMI 1379 - SUPREME COURT
Rejection of application for anticipatory bail under Section 438 of the Code of Criminal Procedure 1973 - to liberate muslim women from practice of talaq-e-biddat - HELD THAT:- Under Section 3, a pronouncement of talaq by a Muslim husband upon his wife has been rendered void and illegal. Under Section 4, a Muslim husband who pronounces talaq upon his wife, as referred to in Section 3, is punishable with imprisonment for a term, which may extend to three years. The prohibition in Sections 3 and 4 is evidently one which operates in relation to a Muslim husband alone. This is supported by the Statement of Objects and Reasons accompanying the Muslim Women (Protection of Rights on Marriage) Bill 2019, when it was introduced in the Parliament. The reasons for the introduction of the bill specifically stated that the bill was to give effect to the ruling of this court in SHAYARA BANO VERSUS AAFREEN REHMAN, GULSHAN PARVEEN, ISHRAT JAHAN, ATIYA SABRI VERSUS UNION OF INDIA AND OTHERS & IN RE: MUSLIM WOMEN’S QUEST FOR EQUALITY VERSUS JAMIAT ULMA-I-HIND [2017 (9) TMI 1302 - SUPREME COURT], and to „liberate‟ Muslim women from the customary practice of talaq-e-biddat (divorce by triple talaq) by Muslim men.
Even in the context of legislation, such as the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989, where a bar is interposed by the provisions of Section 18 and Sub-section (2) of Section 18-A on the application of Section 438 of the CrPC, this Court has held that the bar will not apply where the complaint does not make out “a prima facie case” for the applicability of the provisions of the Act. A statutory exclusion of the right to access remedies for bail is construed strictly, for a purpose. Excluding access to bail as a remedy, impinges upon human liberty. Hence, the decision in PRATHVI RAJ CHAUHAN VERSUS UNION OF INDIA (UOI) AND ORS. [2020 (2) TMI 1705 - SUPREME COURT] held that the exclusion will not be attracted where the complaint does not prima facie indicate a case attracting the applicability of the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989.
On a true and harmonious construction of Section 438 of CrPC and Section 7(c) of the Act, there is no bar on granting anticipatory bail for an offence committed under the Act, provided that the competent court must hear the married Muslim woman who has made the complaint before granting the anticipatory bail. It would be at the discretion of the court to grant ad-interim relief to the accused during the pendency of the anticipatory bail application, having issued notice to the married Muslim woman - primary allegation which is pressed in aid to deny anticipatory bail is the pronouncement of triple talaq by the spouse of the second respondent. In the preceding paragraphs we have observed that an offence under the Act is by the Muslim man who has pronounced talaq upon his spouse, and not the appellant, who is the mother-in-law of the second respondent.
It is directed that in the event of the arrest of the appellant, she shall be released on bail by the competent court, subject to her filing a personal bond of Rs 25,000. The appellant shall cooperate in the course of the investigation by the Investigating Officer.
Appeal allowed.
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2020 (12) TMI 1376 - SUPREME COURT
Seeking grant of anticipatory bail under Section 438 of the Code of Criminal Procedure 1973 - misbehaviour with the deceased on account of dowry - demand of dowry on earlier occasions - unnatural death or alleged suicide - HELD THAT:- There is no cogent basis for the Single Judge to have arrived at any of the three prima facie findings. The informant had suffered a loss of his own daughter due to an unnatural death in close proximity to the lodging of his complaint. The FIR contains a reference to the previous incident of October 2017, to the demands for dowry, payments of money in cheque by the informant to the groom‟s family and the telephone calls received by the informant from the father-in-law of the deceased and later from the deceased in close proximity to the incident, on the same day that she died. The FIR contains specific allegations against the accused, commencing with the incident of October 2017. Whether such an incident, as reported by the deceased to the police on 1 October 2017 did take place, leading to her suffering injuries which were examined at the Government Hospital, is a matter for investigation.
The trail of monies alleged to be received by the deceased for her professional work is a matter to be investigated. Similarly, the transfer of monies by the deceased to her father-in-law and the nexus, if any, with the funds which she had received from her parents is a matter for serious investigation. The death was unnatural which took place within seven years of the marriage. The alleged phone calls received by the informant from some of the accused and by the deceased on the day when she was found to be hanging are matters which required to be probed. The alleged absence of an external injury on the body of the deceased is a matter for investigation. The approach of the High Court is casual - The observation of the High Court that no specific role is assigned in the FIR to the accused is based on a misreading of the FIR. The entire approach of the High Court is flawed. It is contrary to the record and, as we shall now explain, contrary to settled principles of law governing the exercise of discretion on the grant of anticipatory bail in a case involving the alleged commission of a serious offence.
It is a well settled principle of law that the setting aside of an “unjustified, illegal or perverse order” granting bail is distinct from the cancellation of bail on the ground of the supervening misconduct of the accused or because some new facts have emerged, requiring cancellation - In PURAN AND ORS. VERSUS RAMBILAS AND ORS. [2001 (5) TMI 971 - SUPREME COURT OF INDIA], this Court has held that where an order granting bail ignores material on record or if a perverse order granting bail is passed in a heinous crime without furnishing reasons, the interests of justice may require that the order be set aside and bail be cancelled.
The judgment of the Single Judge of the High Court of Judicature at Allahabad is unsustainable. The FIR contains a recital of allegations bearing on the role of the accused in demanding dowry, of the prior incidents of assault and the payment of moneys by cheque to the in-laws of the deceased. The FIR has referred to the telephone calls which were received both from the father-in-law of the deceased on the morning of 3 August 2020 and from the deceased on two occasions on the same day- a few hours before her body was found. The grant of anticipatory bail in such a serious offence would operate to obstruct the investigation. The FIR by a father who has suffered the death of his daughter in these circumstances cannot be regarded as “engineered” to falsely implicate the spouse of the deceased and his family.
Transfer of further investigation to the CBI - HELD THAT:- Selective disclosures to the media affect the rights of the accused in some cases and the rights of victims‟ families in others. The media does have a legitimate stake in fair reporting. But events such as what has happened in this case show how the selective divulging of information, including the disclosure of material which may eventually form a crucial part of the evidentiary record at the criminal trial, can be used to derail the administration of criminal justice. The investigating officer has a duty to investigate when information about the commission of a cognizable offence is brought to their attention. Unfortunately, this role is being compromised by the manner in which selective leaks take place in the public realm. This is not fair to the accused because it pulls the rug below the presumption of innocence. It is not fair to the victims of crime, if they have survived the crime, and where they have not, to their families. Neither the victims nor their families have a platform to answer the publication of lurid details about their lives and circumstances - the insinuation that the FIR had not doubted or referenced the suicide note, despite its publication in the news media, is rejected. The daughter of the appellant had died in mysterious circumstances. The family had completed the last rites. To expect that they should be scouring the pages of the print and electronic media before reporting the crime is a mockery of the human condition. The apprehension of the appellant that A-2 and his family have a prominent social status in Agra and may have used their position in society to thwart a proper investigation cannot be regarded to be unjustified - The CBI is directed to conduct a further investigation of the case arising out of case Crime No. 0623 of 2020 registered at Police Station Tajganj, District Agra, dated 7 August 2020.
Appeal disposed off.
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2020 (12) TMI 1372 - SUPREME COURT
Perversity principle - agreement to supply certain quantities of freshly mined and washed "German Creek", "Isaac" (Blend of 65% Moranbah North and 35% German Creek coking coals) and "Moranbah North" coking coal to the Respondent - dispute regarding shipments or "stems" that were to be covered by the Fifth Delivery Period, which ranged from 01.07.2008 to 30.06.2009, the parties mutually extending this period to 30.09.2009 - Section 34 of the Arbitration and Conciliation Act, 1996 - HELD THAT:- The present case is that of an international commercial arbitration, the Majority Award being delivered in New Delhi on 12.05.2014. Resultantly, this case has been argued on the basis of the law as it stood before the Arbitration and Conciliation (Amendment) Act, 2015 ["Amendment"] added two explanations to Section 34(1) and Sub-section (2A) to Section 34 of the Arbitration Act, in which it was made clear that the ground of "patent illegality appearing on the face of the award" is not a ground which could be taken to challenge an international commercial award made in India after 23.10.2015, when the Amendment was brought into force. We, therefore, proceed to consider this case on the pre-existing law, which is contained in the seminal decision of Associate Builders [2014 (11) TMI 1114 - SUPREME COURT].
The judgment in Associate Builders examined each of the heads set out in Renusagar Power Co. Ltd. v. General Electric Co., [1993 (10) TMI 232 - SUPREME COURT], together with the addition of the fourth head of "patent illegality" laid down in ONGC Ltd. v. Saw Pipes Ltd., [2003 (4) TMI 438 - SUPREME COURT] - it was held in the case that It must clearly be understood that when a court is applying the "public policy" test to an arbitration award, it does not act as a court of appeal and consequently errors of fact cannot be corrected. A possible view by the arbitrator on facts has necessarily to pass muster as the arbitrator is the ultimate master of the quantity and quality of evidence to be relied upon when he delivers his arbitral award. Thus an award based on little evidence or on evidence which does not measure up in quality to a trained legal mind would not be held to be invalid on this score. Once it is found that the arbitrators approach is not arbitrary or capricious, then he is the last word on facts.
Given the parameters of judicial review laid down in Associate Builders [2014 (11) TMI 1114 - SUPREME COURT], it is obvious that neither the ground of fundamental policy of Indian law, nor the ground of patent illegality, have been made out in the facts of this case, given the fact that the Majority Award is certainly a possible view based on the oral and documentary evidence led in the case, which cannot be characterized as being either perverse or being based on no evidence.
In Parsa Kente Collieries Ltd. v. Rajasthan Rajya Vidyut Utpadan Nigam Ltd., [2019 (6) TMI 2 - SUPREME COURT], after referring to the parameters of review in Associate Builders [2014 (11) TMI 1114 - SUPREME COURT] and other cases, this Court found that with respect to the first claim, relating to price adjustment/escalation, the arbitrator interpreted the relevant clauses of the contract and came to a certain finding. The High Court, in interfering with that finding, was wrong in doing so merely because some other view could have been taken, as the interpretation made by the arbitrator was a possible one. The High Court's judgment was, therefore, set aside to this extent. However, insofar as the second and third claims were concerned, on the facts of that case, the finding was said to be so perverse or irrational that no reasonable person could have arrived at the same, based on the material/evidence on record, as a result of which, the High Court's judgment was upheld.
In South East Asia Marine Engg. & Constructions Ltd. (SEAMEC LTD.) v. Oil India Ltd., [2020 (5) TMI 242 - SUPREME COURT], a three Judge Bench of this Court referred to the judgment of this Court in Dyna Technologies [2019 (12) TMI 842 - SUPREME COURT] and found that the interpretation of the arbitral tribunal in expanding the meaning of Clause 23 of the contract to include a change in rate of high-speed diesel, not being even a possible interpretation of the concerned contract, the High Court in setting aside the award, could not be said to be incorrect. Also, other contractual terms when seen together with this interpretation would also render such finding perverse.
All the aforesaid judgments are judgments which, on their facts, have been decided in a particular way after applying the tests laid down in Associate Builders and its progeny. All these judgments turn on their own facts. None of them can have any application to the case before us, as it has been found by us that in the fact situation which arises in the present case, the Majority Award is certainly a possible view of the case, given the entirety of the correspondence between the parties and thus, cannot in any manner, be characterised as perverse.
Appeal allowed.
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2020 (12) TMI 1369 - MADRAS HIGH COURT
Termination order - purchase orders raised, without following the procedures laid down in G.O. No.149, dated 16.07.1998 - It is the grievance of the petitioner that the 1st respondent as well as the 2nd respondent have passed a non-speaking order, which is unsustainable and the punishment imposed on him is disproportionate to the delinquency - HELD THAT:- The non-following of the guidelines mandated in G.O. No.149, dated 16.07.1998 is admitted by the petitioner, but the case of the petitioner is only to the extent that he was not aware of the said Government Order. The said government order relates to purchases to be made above a threshold limit and in the case on hand, the purchases made are above the threshold limit and, therefore, the permission of the competent authority is required - In the instant case, it is not in dispute that the petitioner has not followed the procedures laid down in G.O. No.149. It is further pointed out that ignorance of the petitioner of the said Government Order cannot be a ground for this Court to interfere with the impugned order.
A perusal of the materials available on record, more so the counter affidavit filed by the respondents reveal that the act of the petitioner has not caused any financial loss to the respondents, though the act of the petitioner is a lapse on his part. Further, the materials on record also reveals that the petitioner has not been given sufficient opportunity to put forth his defence and defend himself as the enquiry has not been conducted in a manner known to law. Proper enquiry by placing oral and documentary evidence has not been conducted, while finding the petitioner guilty of the charges - a perusal of the order passed by the 2nd respondent / appellate authority clearly reveals that the said order is a non-speaking order, as it has merely extracted the opinion given by the Tamil Nadu Public Service Commission, without entering into the merits of the appeal filed by the petitioner. No separate finding has been rendered by the appellate authority on the basis of the materials available before him. The order has been passed by the appellate authority mechanically without applying his mind to the materials available before him. In such a backdrop, this Court is of the considered view that this is a fit case where the matter has to be remanded back to the respondents.
This Court is of the considered view that this is a fit case where the matter has to be remanded back to the respondents. However, this Court is also oblivious of the fact that almost a to remand back the matter to the respondents - the writ petition is allowed.
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2020 (12) TMI 1356 - SUPREME COURT
Information sought by this Court by its previous order - jurisdiction of the Municipal Corporation, Faridabad or not - HELD THAT:- Dr Monika Gusain, learned counsel appearing on behalf of the State of Haryana, states that she will ensure that an affidavit is duly filed by the Municipal Corporation, Faridabad, together with the underlying record on the above aspect by the next date of listing.
The Municipal Corporation, Faridabad shall file an affidavit within a period of two weeks from today clarifying the status of the conversion of land use of the property of M/s Forgings Private Limited situated at 12/6, Sector 27C, Faridabad and situated at Mathura Road - List the appeals after two weeks.
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2020 (12) TMI 1311 - CALCUTTA HIGH COURT
Application for extension of time to file the written statement affirmed - Seeking 120 days time for filing the written statement under the amendment made to Order VIII Rule 1 of The Code of Civil Procedure after coming into force of The Commercial Courts Act, 2015, ended on 31st March, 2020 - application for extension of time was filed by the defendant before the Master on 5th February, 2020 seeking 8 weeks time for preparing and filing the written statement - Whether the initial period of 30 days is the prescribed period for the purposes of limitation? - HELD THAT:- The words of the amendment make it clear that the additional period allowed to a defendant comes into play only after the defendant has failed to file its written statement within the prescribed period under Order VIII Rule 1 which is 30 days. Hence, the 90 days additional window following the prescribed period is the additional period and not the prescribed period of limitation under Order VIII Rule 1.
Whether the defendant can take refuge under the order of 23rd March, 2020 passed by the Supreme Court? - HELD THAT:- This Court is therefore of the view that the order of the Supreme Court dated 23rd March, 2020 would apply only to the first 30 days for filing written statement under Order VIII Rule 1 of The CPC and not to the additional 90 days which follows the prescribed period for matters covered by the 2015 Act. Besides the orders of the Supreme Court should be seen in their specific factual context and that the orders were passed in exercise of the power under Article 142 of The Constitution of India. The order dated 18th September, 2020 also restricts the window to vigilant litigants. In this case the application was filed beyond the prescribed period of 30 days.
Whether the defendant showed promptness in pursuing its right of filing the written statement? - HELD THAT:- The prescribed period of 30 days ended on 2nd January, 2020 and the additional 90 days (120 days under the Amendment) ended on 31st March, 2020. The application was filed by the defendant for extension of time on 5th February, 2020 seeking a further period of eight weeks for filing of its written statement thereby extending the time till 5th April, 2020 - It should also be noted that paragraph 16 of the application filed by the defendant states that judicial functions and listing of urgent matters started in phases on and from June, 2020 and matters taken up in the regular course in this Court resumed only on and from 7th December, 2020. This is clearly an incorrect statement since The High Court at Calcutta commenced its judicial business intermittently from April, 2020 and in right earnest from June, 2020 which continues as on date. The defendant therefore cannot take recourse to this ground at all.
This Court does not find any ground either provided under Order VIII Rule 1 or the amendment thereto or by the orders of the Supreme Court for allowing the application for extension of time to file the written statement - application dismissed.
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2020 (12) TMI 1292 - MANIPUR HIGH COURT
Drugs trafficking - Recovery of illegal drugs - Section 167 (2) of the Cr.P.C. - HELD THAT:- On perusal of the said decision rendered by the Hon'ble Supreme Court in SARAVANAN VERSUS STATE REPRESENTED BY THE INSPECTOR OF POLICE [2020 (10) TMI 1249 - SUPREME COURT], the contention of the learned counsel appearing for the petitioner appears to be correct. The issue involved therein was whether while releasing the appellant accused therein on default bail/statutory bail under Section 167 (2) CR.P.C., any condition of deposit of amount as imposed by the High Court, could have been imposed? The answer of the Hon'ble Supreme Court was in the negative and held that the only requirement for getting the default bail/statutory bail under Section 167(2), Cr.P.C. is that the accused is in jail for more than 60 or 90 days, as the case may be, and within 60 or 90 days, as the case may be, the investigation is not completed and no chargesheet is filed by 60th or 90th day and the accused applies for default bail and is prepared to furnish bail. No other condition of deposit of the alleged amount involved can be imposed. Imposing such condition while releasing the accused on default bail/statutory bail would frustrate the very object and purpose of default bail under Section 167(2), Cr.P.C.
The provisions of Section 167 (2) would apply to the accused arrested under the provisions of the ND & PS Act - petitioner shall be released on default bail provided he is ready to furnish PR bond to the satisfaction of the Special Judge, ND & PS, Manipur - Bail application allowed.
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2020 (12) TMI 1290 - SUPREME COURT
Allegation of rape - reversal of order of acquittal passed by the learned trial Court - whether the High Court is justified in interfering with the order of acquittal passed by the learned trial Court and thereby convicting the accused? - disadvantage of the mental sickness and low IQ of the victim, was taken - scope and ambit of Section 378 Cr.P.C. - HELD THAT:- In the facts and circumstances of the case the High Court is justified and, as such, has not committed any error in reversing the order of acquittal passed by the learned trial Court and convicting the accused for the offences under Sections 376 and 506 IPC. Being the first appellate Court, the High Court was justified in reappreciating the entire evidence on record and the reasoning given by the learned trial Court.
The High Court has specifically found that the IQ of the victim was 62 which was based on the history and mental state examination of the victim. The High Court has also come to the conclusion that the victim was not in a position to understand the good and bad aspect of the sexual assault. Merely because the victim was in a position to do some household works cannot discard the medical evidence that the victim had mild mental retardation and she was not in a position to understand the good and bad aspect of sexual assault. It appears that the accused had taken disadvantage of the mental illness of the victim. It is required to be appreciated coupled with the fact that the accused is found to be the biological father of the baby child delivered by the victim.
Considering the evidence on record, more particularly the deposition of PW11 and PW22 and even the deposition of the other prosecution witnesses, the High Court has rightly observed that case would fall under Section 375 IPC and has rightly convicted the accused for the offence under Section 376 IPC. Even as per clause fifthly of Section 375 IPC, “a man is said to commit rape”, if with her consent when, at the time of giving such consent, by reason of unsoundness of mind, is unable to understand the nature and consequences of that to which she gives consent - On evidence, it has been established and proved that the victim was mentally retarded and her IQ was 62 and she was not in a position to understand the good and bad aspect of sexual assault. The accused has taken disadvantage of the mental sickness and low IQ of the victim.
From the medical evidence, it emerges that IQ 62 falls in the category of ‘mild mental retardation’. It has also emerged that the mental status and IQ are determined on the basis of the injuries and activities. IQ of a person can be known on the basis of the questions, activities and the history of a patient. Therefore, even if there might be some contradictions with respect to language known by the victim, in that case also, it cannot be said to be the major contradictions to disbelieve the entire medical evidence on the mental status of the victim. Therefore, the High Court is justified in reversing the order of acquittal and convicting the accused for the offences under Sections 376 & 506 IPC.
Submission on behalf of the accused that he has already undergone four years RI out of seven years RI awarded to him and is married and has two children and therefore a lenient view may be taken - HELD THAT:- It is required to be noted that as such the High Court has also taken a very lenient view by imposing the minimum sentence of seven years RI. It is required to be noted that it is a case of sexual assault on a victim whose IQ was 62 and was mentally retarded and that accused has taken undue advantage of the mental sickness/illness of the victim. A person suffering from mental disorder or mental sickness deserves special care, love and affection. They are not to be exploited. In the present case, the accused has exploited the victim by taking disadvantage of her mental sickness/illness. Therefore, no interference of this Court against the impugned judgment and order passed by the High Court convicting the accused is called for.
Appeal dismissed.
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2020 (12) TMI 1263 - KERALA HIGH COURT
Seeking to proceed against the secured property involved - recovery of dues - validity of attachment made by the respondents subsequent to creation of equitable mortgage created in favour of the petitioner - effect on marketability - whether the State has better right over the secured assets for recovery of its dues? - HELD THAT:- This question is no more res integra. The petitioner has rightly relied on the judgments of this Court in TRAVANCORE DEVASWOM BOARD VERSUS LOCAL FUND AUDIT [2020 (5) TMI 691 - KERALA HIGH COURT] and STATE BANK OF INDIA AND ORS. VERSUS STATE OF KERALA AND ORS. [2019 (7) TMI 1684 - KERALA HIGH COURT] where it was held that the sale carried out either under the SARFAESI Act or under the RDB Act takes precedence over the statutory charges due to the Government created under KVAT Act or under other State Enactments after the Amendment Act of 2016. A secured creditor in whose favour a security interest has been created thus has priority in sale and payment over all other statutory charge holders.
Section 26E of the SARFAESI Act and Section 31B of the RDB Act create a 'First Charge' by way of a priority to the Banks/Financial Institutions to recover and satisfy their debts, notwithstanding any statutory 'First Charge' in favour of the Revenue.
Petition allowed.
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