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2020 (10) TMI 1383
Denial to supply some crucial documents as prayed/required in the application under Section 207 Cr.P.C. - proper recording of statement under section 161 Cr.P.C. or not - whether statement of witness V.K. Jain recorded on 21.02.2018 but not signed by IO of the case, is to be considered as a statement recorded under section 161 Cr.P.C.? - If yes, further question arises whether relied upon judgments by the respondents are applicable in the facts and circumstances of the present case?
HELD THAT:- Undisputedly, in the remand order of co-accused namely Prakash Jarwal and Amanatullah Khan, Learned Metropolitan Magistrate, Tis Hazari Courts, Delhi, has recorded the date of statement of V.K. Jain as 21.02.2018. However, in reply to above facts, it is stated that above date of 21.02.2018 is a typographical error, in fact both statements under section 161 Cr.P.C. and 164 Cr.P.C. of witness V.K. Jain were got recorded on 22.02.2018. Moreover, the fact of recording of statement dated 21.02.2018 in order of learned MM dated 23.02.2018 is the submission made by the defence counsel, not by the prosecution.
It is pertinent to mention here that in para 28 of impugned order dated 24.07.2019, learned ASJ has recorded that on perusal of ‗Case Diary’ it shows that witness V.K. Jain was examined in Police Station on 21.02.2020 in depth and a report was prepared. The case diary further shows that after examination, V.K. Jain was relieved from the investigation after giving him necessary instructions. Learned Judge further observed that since it is a record of oral examination of V.K. Jain by the IO and is noted in the 'Case Diary', the said examination does not take place of statement under section 161 Cr.P.C. and is thereby not to be given to the accused. However, the same may be used during the trial.
This Court in Ashutosh Verma vs. CBI [2014 (12) TMI 1405 - DELHI HIGH COURT] has observed that even at the stage of scrutiny of documents under section 207 Cr.P.C., the Court shall supply all the documents to the accused even if the same were not relied upon by the prosecution. Further observed that the accused can ask for the documents that withheld his defence and would be prevented from properly defending himself, until all the evidence collected during the course of investigation is given to the accused.
A conjoint reading of section 173(5), 173(6) and first proviso attached to section 207 of Cr.P.C. leaves no scope of doubt that it is bounden duty of the police officer to forward all the statements to the Magistrate, mentioned in sub-section (5) (b) of Section 173 Cr.P.C. without any exception so as to enable the Magistrate to discharge his duty under section 207 of Cr.P.C. by furnishing copies of such documents to the accused.
Regarding limitation, although delay is duly explained in the petition, however, there is no applicability of Limitation Act on Section 482 Cr.P.C. being the inherent powers of this Court. The said section is starting itself with a non-obstante clause (Notwithstanding) therefore, this Court has power to exercise inherent powers where there is miscarriage of justice and abuse of process of law. Non-applicability of Limitation Act and non-providing of limitation period in Cr.P.C. with regard to Section 482 Cr.P.C., the intention of the legislature was not to restrict this Court to use these powers in appropriate cases. Thus, raising the issue of limitation period about Section 482 Cr.P.C. is itself contrary to the intention of legislature and the very section itself.
There are merits in the present petition. Consequently, the impugned order is hereby set-aside - the present petition is allowed.
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2020 (10) TMI 1382
Seeking directions for the anticipatory bail application of the Petitioners to be heard by the Patna High Court which is stated to be still pending - disclosure of false information by the Petitioner in his nomination papers submitted for General Nagar Palika elections, 2007 - HELD THAT:- The SEC in exercise of power as enunciated Under Section 18(2) of the Act declared the elections void. Action was directed to be taken against the Petitioners and in pursuance to the same, FIR was lodged against them Under Section 447 of the said Act read with Section 420/34, Indian Penal Code.
The submission of the learned Counsel for the Petitioners is that the Petitioners are willing to join the investigation and there is no need for custodial interrogation of the Petitioners - the contention of the learned Counsel for the Petitioners cannot be agreed upon in view of the conduct of the Petitioners and the greater the office held, the greater the responsibility of the person as in the case of the Petitioners. It cannot be said that the Petitioners held a high office, they are ipso facto entitled to anticipatory bail.
The prayer for anticipatory bail rejected - petition dismissed.
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2020 (10) TMI 1379
Right to residence in shared household being the matrimonial home - Interpretation and working of the Protection of Women from Domestic Violence Act, 2005 - decreeing the suit filed by the Plaintiff for mandatory and permanent injunction - Order XI Rule 13 Code of Civil Procedure.
Whether definition of shared household Under Section 2(s) of the Protection of Women from Domestic Violence Act, 2005 has to be read to mean that shared household can only be that household which is household of joint family or in which husband of the aggrieved person has a share? - Whether judgment of this Court in SR. BATRA & ANR. VERSUS TARUNA BATRA [2006 (12) TMI 487 - SUPREME COURT] has not correctly interpreted the provision of Section 2(s) of Protection of Women from Domestic Violence Act, 2005 and does not lay down a correct law? - HELD THAT:- There being specific pleading on behalf of the Respondent that the house, which is in the name of the Appellant is the matrimonial home of the Respondent where she was residing in first floor since her marriage. The fact that Respondent is residing in first floor of the premises is not matter of dispute. Even if the house is in the name of the Appellant and that even if we accept the case of the Appellant that Appellant's son Raveen has no share in the house belonging to Appellant, with whom the Respondent was living in the domestic relationship, whether the Respondent is entitled to reside in the premises in question as shared household is the question to be answered. In the impugned judgment, Delhi High Court has refrained from deciding the point as to whether suit property is a shared household on the ground that the application filed Under Section 12 of Act, 2005 by the Respondent is pending. In the suit filed by the Appellant where Respondent has pleaded and claimed that it is shared household and she has right to live and it was on that ground she was resisting the suit for mandatory injunction, the question that whether the suit property is a shared household or not becomes relevant and necessary and the said issue cannot be skipped on the ground that application under D.V. Act is pending.
The right to residence Under Section 19 is not an indefeasible right of residence in shared household especially when the daughter-in-law is pitted against aged father-in-law and mother-in-law. The senior citizens in the evening of their life are also entitled to live peacefully not haunted by marital discord between their son and daughter-in-law. While granting relief both in application Under Section 12 of Act, 2005 or in any civil proceedings, the Court has to balance the rights of both the parties. The directions issued by High court in paragraph 56 adequately balances the rights of both the parties.
The definition of shared household given in Section 2(s) cannot be read to mean that shared household can only be that household which is household of the joint family of which husband is a member or in which husband of the aggrieved person has a share - The judgment of this Court in SR. BATRA & ANR. VERSUS TARUNA BATRA [2006 (12) TMI 487 - SUPREME COURT] has not correctly interpreted Section 2(s) of Act, 2005 and the judgment does not lay down a correct law.
Whether the High Court has rightly come to the conclusion that suit filed by the Appellant could not have been decreed Under Order XII Rule 6 Code of Civil Procedure? - Whether, when the Defendant in her written statement pleaded that suit property is her shared household and she has right to residence therein, the Trial Court could have decreed the suit of the Plaintiff without deciding such claim of Defendant which was permissible to be decided as per Section 26 of the Act, 2005? - HELD THAT:- What is required to be considered is what constitutes the admission warranting the judgment on admission in exercise of powers Under Order XII Rule 6, Code of Civil Procedure. This Court had occasion to consider above in decisions, Himani Alloys Limited v. Tata Steel Limited, [2011 (7) TMI 1344 - SUPREME COURT] and S.M. Asif v. Virender Kumar Bajaj, [2015 (8) TMI 1563 - SUPREME COURT].
In Himani Alloys Limited, this Court had an occasion to consider the scope and ambit of judgment on admission in exercise of powers Under Order XII Rule 6, Code of Civil Procedure. It is observed and held in paragraph 11 that being an enabling provision, it is neither mandatory nor preemptory but discretionary for the Court to pass judgment on admission in exercise of powers Under Order XII Rule 6 Code of Civil Procedure. It is observed that the Court, on examination of the facts and circumstances, has to exercise its judicial discretion keeping in mind that a judgment on admission is a judgment without trial which permanently denies any remedy to the Defendant by way of an appeal on merits.
A similar view was expressed by this Court in the case of S.M. Asif. It is observed and held in paragraph 8 that expression "may" in Order XII Rule 6 Code of Civil Procedure suggests that it is discretionary and cannot be claimed as of right. It is further observed that where Defendants raised objections which go to root of the case, it would not be appropriate to exercise discretion Under Order XII Rule 6 Code of Civil Procedure.
The power Under Order XII Rule 6 is discretionary and cannot be claimed as a matter of right. In the facts of the present case, the Trial Court ought not to have given judgment Under Order XII Rule 6 on the admission of the Defendant as contained in her application filed Under Section 12 of the D.V. Act. Thus, there are more than one reason for not approving the course of action adopted by Trial Court in passing the judgment Under Order XII Rule 6. We, thus, concur with the view of the High Court that the judgment and decree of the Trial Court given Under Order XII Rule 6 is unsustainable.
Whether the Plaintiff in the suit giving rise to this appeal can be said to be the Respondent as per definition of Section 2(q) of Act, 2005? - HELD THAT:- One of the conditions to treat a person as a Respondent is that "against whom the aggrieved person has sought any relief under the Act". The Defendant in her pleadings having claimed that she has right of residence in the suit property, she for successful resisting the suit has to plead and prove that she has been subjected to any act of domestic violence by the Respondent, which is implicit in the definition of the aggrieved person itself as given in the Section 2(a) of the Act, 2005. It is, further, relevant to notice that although learned Magistrate passed an interim order in the application filed by the Defendant Under Section 12 on 26.11.2016 but said order was interim order which was passed on the satisfaction of the Magistrate that "the application prima facie disclosed that the Respondent is committing or has committed an act of domestic violence". For granting any relief by the Civil Court Under Section 19 it has to be proved that the Respondent is committing or has committed an act of domestic violence on the aggrieved person. To treat a person as the "Respondent" for purposes of Section 2(q) it has to be proved that person arrayed as Respondent has committed an act of domestic violence on the aggrieved person.
For the purposes of determination of right of Defendant Under Sections 17 and 19 read with Section 26 in the suit in question the Plaintiff can be treated as "Respondent", but for the grant of any relief to the Defendant or for successful resisting the suit of the Plaintiff necessary conditions for grant of relief as prescribed under the Act, 2005 has to be pleaded and proved by the Defendant, only then the relief can be granted by the Civil Court to the Defendant.
What is the meaning and extent of the expression "save in accordance with the procedure established by law" as occurring in Section 17(2) of Act, 2005? - HELD THAT:- The expression "save in accordance with the procedure established by law", in Section 17(2) of the Act, 2005 contemplates the proceedings in court of competent jurisdiction. Thus, suit for mandatory and permanent injunction/eviction or possession by the owner of the property is maintainable before a Competent Court. We may further notice that in Sub-section (2) the injunction is "shall not be evicted or excluded from the shared household save in accordance with procedure established by law". Thus, the provision itself contemplates adopting of any procedure established by law by the Respondent for eviction or exclusion of the aggrieved person from the shared household. Thus, in appropriate case, the competent court can decide the claim in a properly instituted suit by the owner as to whether the women need to be excluded or evicted from the shared household - The High Court in the impugned judgment has also expressed opinion that suit filed by the Plaintiff cannot be held to be non-maintainable with which conclusion we are in agreement.
In case, the shared household of a woman is a tenanted/allotted/licensed accommodation where tenancy/allotment/license is in the name of husband, father-in-law or any other relative, the Act, 2005 does not operate against the landlord/lessor/licensor in initiating an appropriate proceedings for eviction of the tenant/allottee/licensee qua the shared household. However, in case the proceedings are due to any collusion between the two, the woman, who is living in the shared household has right to resist the proceedings on all grounds which the tenant/lessee/licensee could have taken in the proceedings. The embargo Under Section 17(2) of Act, 2005 of not to be evicted or excluded save in accordance with the procedure established by law operates only against the "Respondent", i.e., one who is Respondent within the meaning of Section 2(q) of Act, 2005.
Whether the husband of aggrieved party (Defendant) is necessary party in the suit filed by the Plaintiff against the Defendant? - HELD THAT:- When the matter is remanded back to the Trial Court, Trial Court's discretion ought not to have been fettered by issuing such a general direction as noted above. The general direction issued in paragraph 56(i) is capable of being misinterpreted. Whether the husband of an aggrieved person in a particular case needs to be added as Plaintiff or Defendant in the suit is a matter, which need to be considered by the Court taking into consideration all aspects of the matter - direction in paragraph 56(i) be not treated as a general direction to the Courts to implead in all cases the husband of an aggrieved person and it is the Trial Court which is to exercise the jurisdiction Under Order I Rule 10. The direction in paragraph 56(i) are, thus, need to be read in the manner as indicated above.
In the present case, although husband of the Defendant was not a necessary party but in view of the pleadings in the written statement, the husband was a proper party.
What is the effect of orders passed Under Section 19 of the Act, 2005 whether interim or final passed in the proceedings initiated in a civil court of competent jurisdiction? - HELD THAT:- On conjoint reading of Sections 12(2), 17, 19, 20, 22, 23, 25, 26 and 28 of the D.V. Act, it can safely be said that the proceedings under the D.V. Act and proceedings before a civil court, family court or a criminal court, as mentioned in Section 26 of the D.V. Act are independent proceedings, like the proceedings Under Section 125 of the Code of Criminal Procedure for maintenance before the Magistrate and/or family court and the proceedings for maintenance before a civil court/family court for the reliefs under the Hindu Adoption and Maintenance Act. However, as observed hereinabove, the findings/orders passed by the one forum has to be considered by another forum - The order passed under D.V. Act whether interim or final shall be relevant and have to be given weight as one of evidence in the civil suit but the evidentiary value of such evidence is limited. The findings arrived therein by the magistrate are although not binding on the Civil Court but the order having passed under the Act, 2005, which is an special Act has to be given its due weight.
Thus, following conclusions have been arrived:
(i) The pendency of proceedings under Act, 2005 or any order interim or final passed under D.V. Act Under Section 19 regarding right of residence is not an embargo for initiating or continuing any civil proceedings, which relate to the subject matter of order interim or final passed in proceedings under D.V. Act, 2005.
(ii) The judgment or order of criminal court granting an interim or final relief Under Section 19 of D.V. Act, 2005 are relevant within the meaning of Section 43 of the Evidence Act and can be referred to and looked into by the civil court.
(iii) A civil court is to determine the issues in civil proceedings on the basis of evidence, which has been led by the parties before the civil court.
(iv) In the facts of the present case, suit filed in civil court for mandatory and permanent injunction was fully maintainable and the issues raised by the Appellant as well as by the Defendant claiming a right Under Section 19 were to be addressed and decided on the basis of evidence, which is led by the parties in the suit.
The High Court has rightly set aside the decree of the Trial Court and remanded the matter for fresh adjudication - appeal dismissed.
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2020 (10) TMI 1378
Plea of juvenility - juvenile as per the Juvenile Justice Act, 1986 or not - HELD THAT:- This Court at this stage can decide and determine the question of juvenility of Satya Deo, notwithstanding the fact that Satya Deo was not entitled to the benefit of being a juvenile on the date of the offence, under the 1986 Act, and had turned an adult when the 2000 Act was enforced. As Satya Deo was less than 18 years of age on the date of commission of offence on 11.12.1981, he is entitled to be treated as a juvenile and be given benefit as per the 2000 Act.
Whether the Juvenile Justice (Care and Protection) Act of 2015 (2015 Act) would be applicable as the 2015 Act vide Sub-section (1) to Section 111 repeals the 2000 Act, albeit Sub-section (2) to Section 111 states that notwithstanding this repeal anything done or any action taken under the 2000 Act shall be deemed to have been done or taken under the corresponding provisions of the 2015 Act. Section 69 'Repeal and saving clause' of the 2000 Act is identical as Sub-section (1) thereof had repealed the 1986 Act and Sub-section (2) provides that notwithstanding such repeal anything done or any action taken under the 1986 Act shall be deemed to have been done or taken under the corresponding provisions of the 2000 Act.
In light of Section 6 of the General Clauses Act read with Section 25 of the 2015 Act, an Accused cannot be denied his right to be treated as a juvenile when he was less than eighteen years of age at the time of commission of the offence, a right which he acquired and has fructified under the 2000 Act, even if the offence was committed prior to enforcement of the 2000 Act on 01.04.2001. In terms of Section 25 of the 2015 Act, 2000 Act would continue to apply and govern the proceedings which were pending when the 2015 Act was enforced.
While upholding the conviction of Satya Deo, the sentence of life imprisonment set aside - matter remanded to the jurisdiction of the Board for passing appropriate order/directions Under Section 15 of the 2000 Act including the question of determination and payment of appropriate quantum of fine and the compensation to be awarded to the family of the deceased.
The appeal filed by the Satya Deo is partly allowed.
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2020 (10) TMI 1377
Seeking grant of bail - concealment of contraband material (Charas) weighing 3285 grams - HELD THAT:- It is accepted that seven witnesses have already been examined in the trial and seven more witnesses are yet to be examined. The last witness was examined in February 2020 whereafter there is no further progress in the trial because of the COVID-19 pandemic situation. It is also accepted that the appellant was taken in custody on 23.02.2018 and, as such, he has completed more than 2 years 7 months of actual custody.
Considering the facts and circumstances on record, the appellant is entitled to the benefit under Section 439 of the Code - Appeal allowed.
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2020 (10) TMI 1376
Murder - disciplinary enquiry - Proof of misconduct in disciplinary proceedings - acquittal of accused - HELD THAT:- In the present case, the Respondent was acquitted of the charge of murder - The verdict of the criminal trial did not conclude the disciplinary enquiry. The disciplinary enquiry was not governed by proof beyond reasonable doubt or by the Rules of evidence which governed the criminal trial. True, even on the more relaxed standard which governs a disciplinary enquiry, evidence of the involvement of the Respondent in a conspiracy involving the death of Bhanwar Singh would be difficult to prove.
But there are circumstances emerging from the record of the disciplinary proceedings which bring legitimacy to the contention of the State that to reinstate such an employee back in service will erode the credibility of and public confidence in the image of the police force.
The direction of the Division Bench for reinstatement is set aside. In exercise of the jurisdiction Under Article 142 of the Constitution, it is directed that the cessation from service will notionally take place on the Respondent completing minimum qualifying service. The direction of the High Court that the Respondent shall not be entitled to back wages is upheld. The retiral dues of the Respondent shall be computed and released on this basis within a period of three months - Appeal allowed.
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2020 (10) TMI 1375
Grant of Regular bail - conspiracy - murder - HELD THAT:- It appears that though the name of the applicant is shown in the FIR for the alleged offences punishable under Sections 302, 143, 144, 147, 148, 149, 341, 384, 120B, 506 and 34 of the I.P.C., offence punishable under Section 25(1-b)A, 27 and 29 of the Arms Act and Section 135 of the Gujarat Police Act, for the incident which took place on 9th May 2020, on perusal of the charge-sheet papers, it appears that the complainant in the subsequent statement dated 3rd June 2020, which has been recorded after 25 days from the date of incident, the overt tact which was attributed in the FIR, is missing. Though the complainant has stated that the applicant was present, but no role is attributed in the subsequent statement, which was recorded on 3rd June, 2020, wherein the details with regard to chronology of events which took place at the place of the incident on 9th May 2020 is in effect substituted by the complainant in the additional statement dated 3rd June 2020 by narrating altogether different details.
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 in connection with FIR being I-C.R. No. 11993005200314 of 2020 dated 9th May 2020 registered with Adesar Police Station, Bhachau, District Kutch 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 - bail application allowed.
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2020 (10) TMI 1373
Cancellation of sale and forfeiture of amount deposited - failure to comply the terms and conditions of auction sale - petitioner alleges high handedness of the respondent Bank in cancelling the sale and forfeiture of the amount deposited - HELD THAT:- From the material on record it is established that it is the petitioner who having not deposited the 75% of the auction sale within stipulated time, has to blame herself. The circular of the Reserve Bank of India relied by the petitioner in paragraph 6.7 of the petition is of no assistance to the petitioner, as it is applicable to the borrowers. Even the impugned cancellation communication reveals that the petitioner was given the reminders and Covid 19 extension which is not denied by the petitioner.
There are no illegality in the impugned communication as would warrant any indulgence - petition dismissed.
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2020 (10) TMI 1371
Invocation of bank guarantee that had been furnished by the petitioner as security deposit - requirement to fulfill certain preconditions before invoking the arbitration - HELD THAT:- There is a clear indication therein that the terms of the Concessionaire Agreement are to be accorded priority over all other agreements and documents that formed part of the Concessionaire Agreement. The recital 'F' of the Concessionaire Agreement, no doubt, indicates that the RFQ, RFP and LOIA would all form integral parts of the Concessionaire Agreement. The point to be noted, however, is that in the event of ambiguities and discrepancies arising between clauses in the Concessionaire Agreement and clauses in the RFP, as in this case, it is the clause in the Concessionaire Agreement that has to prevail. No doubt, it is only in the event of a 'conflict' that the relevant clause in the Concessionaire Agreement would prevail over the corresponding clause in the RFP. On an overall perusal of the clauses in the RFP as also in the Concessionaire Agreement, I find that the clauses in the Concessionaire Agreement which deal with the same subject matter as the corresponding clause in the RFP were intended to override the latter clauses in the RFP.
The contention of the learned senior counsel for the respondent cannot be accepted that it is only in the event of a challenge to clause 5.15 of the RFP on the ground that it is violative of the fundamental rights of the petitioner under Article 14 of the Constitution of India, that this Court can hold the said clause, in the RFP, as illegal. After the amendment of the 1996 Act in 2015, the law must be taken to be that any clause in an agreement, that requires one of the contracting parties to make a deposit of amount as a precondition for invoking the arbitration, has to be seen as rendering the entire clause arbitrary, being not only excessive or disproportionate but leading to a wholly unjust situation in arbitration proceedings, that are ordinarily to be encouraged on account of the high pendency of cases in courts and the ever-increasing cost of litigation - it is opined that even if the clause in the RFP is to be treated as supplementing Article 22 of the Concessionaire Agreement, the offending conditions in the RFP would have to be ignored in view of the declaration of law by the Supreme Court.
Article 22 of the Concessionaire Agreement constitutes the arbitration agreement between the parties, discretion required under Section 11 of the 1996 Act, and appointment of a sole arbitrator is made - Justice (Retd.) Sri. T.R. Ramachandran Nair, a former Judge of this Court is nominated as the sole arbitrator to arbitrate on the disputes that have arisen between the parties herein.
This Arbitration Request is allowed.
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2020 (10) TMI 1368
Suit for declaration of title of the plaintiff and the second defendant to the suit property - seeking exemption to adduce evidence - HELD THAT:- The revision petitioner cannot seek exemption to adduce evidence due to his choice to examine his son. If exemption to appear and adduce evidence is granted to the defendant, it would imply that the plaintiff may not be in a position to invoke Section 114 illustration (g) of the Indian Evidence Act, best evidence could be shut.
In a litigious battle, if a party fails to produce best evidence, when he is in a position to tender it, other side is entitled to seek the court an adverse inference. The court cannot forfeit its power to draw adverse inference by its own orders.
This petition is partly allowed and only that portion of the impugned order in I.A. No. 3 of 2020 in O.S. No. 72 of 2013 on the file of the Additional District Munsif Court, Valliyur, which exempts the first defendant from tendering evidence is set aside.
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2020 (10) TMI 1367
Transfer petition - seeking transfer of three criminal cases pending before different courts in Dehradun to competent courts in Delhi or some other courts outside the State of Uttarakhand - HELD THAT:- The transfer power Under Section 406 of the Code is to be invoked sparingly. Only when fair justice is in peril, a plea for transfer might be considered. The court however will have to be fully satisfied that impartial trial is not possible. Equally important is to verify that the apprehension of not getting a level playing field, is based on some credible material and not just conjectures and surmises.
While assurance of a fair trial needs to be respected, the plea for transfer of case should not be entertained on mere apprehension of a hyper sensitive person. In his pleadings and arguments, the Petitioner in my assessment has failed to demonstrate that because of what he endured in 2018, it is not possible for the courts in the state to dispense justice objectively and without any bias. It can't also be overlooked that the Petitioner is involved in several cases and this year itself has generated few on his own in the state of Uttarakhand. Therefore, it is difficult to accept that justice for the Petitioner can only be ensured by transfer of three cases mentioned in these petitions.
When the nature of the three cases are examined, it is seen that two of the cases are property and Will related matters. One of this case is pending for last over a decade. Therefore, this Court finds it difficult to accept that the cases are on account of journalistic activities of the Petitioner. In fact the credibility of the journalistic activity of the Petitioner is itself questioned, by a member of his sting operation team, in the third case. In such circumstances, the prosecution in the concerned three cases can't prima facie be said to be on account of malicious prosecution.
These Transfer Petitions are dismissed.
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2020 (10) TMI 1366
Pronunciation of final orders without a reasoned judgment - Deprivation from seeking further judicial redressal in the next tier of judicial scrutiny - HELD THAT:- A Constitution Bench of this Court as far back as in the year 1983 in the STATE OF PUNJAB VERSUS JAGDEV SINGH TALWANDI [1983 (12) TMI 332 - SUPREME COURT] drew the attention of the High Courts to the serious difficulties which were caused on account of a practice which was increasingly being adopted by several High Courts, that of pronouncing the final orders without a reasoned judgment where it was held that If the object of passing such orders is to ensure speedy compliance with them, that object is more often defeated by the aggrieved party filing a special Leave Petition in this Court against the order passed by the High Court. That places this Court in a predicament because, without the benefit of the reasoning of the High Court, it is difficult for this Court to allow the bare order to be implemented. The result inevitably is that the operation of the order passed by the High Court has to be stayed pending delivery of the reasoned judgment.
It cannot be countenanced that between the date of the operative portion of the order and the reasons disclosed, there is a hiatus period of nine months! This is much more than what has been observed to be the maximum time period for even pronouncement of reserved judgment as per ANIL RAI VERSUS STATE OF BIHAR [2001 (8) TMI 1330 - SUPREME COURT] - The appellant undoubtedly being the aggrieved party and prejudiced by the impugned order is unable to avail of the legal remedy of approaching this Court where reasons can be scrutinized. It really amounts to defeating the rights of the appellant to challenge the impugned order on merits and even the succeeding party is unable to obtain the fruits of success of the litigation.
The appeal is allowed.
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2020 (10) TMI 1365
Grant of validity certificate in favour of the Petitioners, resultantly invalidating the tribe claim of the Petitioners - HELD THAT:- The Registrar of the Aurangabad Bench are called upon to verify the aforesaid fact and communicate to this Court forthwith as to why the order has not been uploaded. The Supreme Court Registry to send the message immediately and obtain the necessary copy of the order, if available.
List on 13th October, 2020.
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2020 (10) TMI 1362
Right of pre-emption in case of sale of immovable property - time limitation - whether the right of pre-emption can be enforced for an indefinite number of transactions or it is exercisable only the first time? - HELD THAT:- The stipulation in Section 21 is that the right of pre-emption has to be exercised, in case of a sale, within one year from the date of sale and if the sale is not by a registered deed, on the purchaser taking the physical possession of any part of the property sold. Since the period has to be as per Article 97, the wordings of the Article show that it is one year from the date when the sale is registered (in case such registration takes place as is in the present case). It is this expression, which is sought to be construed by the Respondent No. 1 as well as by the High Court to mean that it is a recurring right for every sale - A reading of the Section 9 shows that the loss is only occasioned, when, within two months from the date of service of the notice, the price is not tendered. However, that is the loss of the right, vis-à-vis the transaction in question. The moot point is whether such a right of pre-emption is a recurring right, i.e. every time the property is sold, the right would rearise, in a case the pre-empting Plaintiff himself has chosen not to exercise such right over the subject immovable property when sold to another purchaser earlier.
It would not be appropriate or permissible to adopt legal reasoning making such a weak right, some kind of a right in perpetuity arising to a Plaintiff every time there is a subsequent transaction or sale once the Plaintiff has waived his right or pre-emption over the subject immovable property. The loss of right mandated Under Section 9 of the Act is absolute. A plain reading of the said provision does not reveal that such right can re-arise to the person who waives his right of pre-emption in an earlier transaction. To do so would mean that a person, whether not having the means or for any other reason, does not exercise the right of preemption and yet he, even after decades, can exercise such a right.
So far as the case of Kutina Bibi [1960 (7) TMI 68 - ASSAM HIGH COURT] is concerned, the factual basis of that decision does not fit with the legal controversy involved in this proceeding. In that case, by a previous transaction the entire land had been sold. It was held in that perspective, that the Plaintiff's right as a co-sharer had become disputed in absence of challenge to the previous transaction. It is opined that such a right is available once-whether to take it or leave it to a person having a right of pre-emption. If such person finds it is not worth once, it is not an open right available for all times to come to that person. The aforesaid being the position, this would itself be an impediment in exercise of the right of preemption in a subsequent transaction.
The judgments referred to by the Respondent of Bishan Singh [1958 (5) TMI 52 - SUPREME COURT] and Barasat Eye Hospital [2019 (10) TMI 1560 - SUPREME COURT] are only for the proposition that the right of pre-emption is a right of substitution-no doubt exists over this proposition. The question is whether this right of substitution can be exercised recurringly or only once. Our answer to the query is 'only once'.
The right of pre-emption is only exercisable for the first time when the cause of such a right arises, in a situation where the Plaintiff-pre-emptor chooses to waive such right after the 1966 Act becoming operational. Section 9 of the said Act operates as a bar on his exercising such right on a subsequent transaction relating to the same immovable property.
Appeal allowed.
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2020 (10) TMI 1348
Validity of arbitral award - Section 34 of The Arbitration and Conciliation Act, 1996 - HELD THAT:- In instant case on hand, that the three months period has to be computed from 14.06.2019 by excluding the date of receipt of award is not in dispute. If one goes by the computation in Himachal Techno Engineers case, 3 months would expire on 13.09.2019 whereas Bibi Salma Khatoon principle suggests that it may be possible to construe that it elapsed on 14.09.2019. However, it may not be necessary to enter into this arena in this case - This Court therefore embarked upon the exercise of examining if sufficient cause qua delay condonation plea has been made out. Before this Court does that, it is made clear that the contention of learned Standing Counsel for Southern Railways that Assam Urban Water Supply case is distinguishable on facts as no recourse to Section 4 of Limitation Act has been taken cannot be sustained as Assam Urban Water Supply case is an authority for the proposition that the last day on which the prescribed period ends being a Court holiday would apply only to prescribed period of limitation and not to further condonable periods post prescribed period of limitation. In instant application, it is not the case of Southern Railways that the last day of the prescribed period of three months fell on a Court holiday.
The argument of learned Standing Counsel for Southern Railways that Sagufa Ahmed [2020 (9) TMI 713 - SUPREME COURT] case is distinguishable as it centres around suo motu orders passed by Hon'ble Supreme Court during the lock down period is of no avail as Hon'ble Supreme Court has comprehensively considered Sections 2(j) and 4 of Limitation Act as well as Section 10 of GC Act and had made it clear that what was extended by Hon'ble Supreme Court during the lock down is the period of limitation and not the period upto which the delay can be condoned in exercise of discretion conferred by a statute.
The pre-application notice under Section (5) has been held to be directory and not mandatory as mentioned supra. Therefore, this Court has repeatedly held that one year period under sub-section (6) should be reckoned from the date of presentation of Section 34 application in cases where Section 34 application is presented without a pre-application notice - Post disposal of Section 34 application also, an intra-court appeal has been provided under Section 37 of A and C Act, but only for very limited kind of orders with a clear embargo by way of a negative connotation 'and from no others' within parenthesis. Sub-section (3) of Section 37 makes it clear that no second appeal shall lie from an order passed in an appeal under Section 37.
These features of A and C Act delineated supra make it clear strict time lines run as a common chord throughout the statute and this common chord is the sublime philosophy and salutary principle underlying the A and C Act. This has been borne in mind in testing the captioned delay condonation application.
Application dismissed.
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2020 (10) TMI 1347
Hire purchase agreement - unfair trade practices - whether the Financier is the real owner of the vehicle which is the subject of a hire purchase agreement, and if so, whether there can be any impediment to the Financier, taking repossession of the vehicle, when the hirer does not make payment of instalments in terms of the hire purchase agreement - service of proper notice - HELD THAT:- The Complainant has only made a vague assertion that the action of the Financier in taking possession of the vehicle, admittedly for default in payment of instalments, and in not releasing the vehicle to the Complainant, in spite of the Complainant’s assurance to the Financier to clear outstanding instalments and pay future instalments timely, amounts to an act of unfair trade practice and constitutes deficiency of service - the deficiency has been defined in Section 2(1)(g) set out herein above, as any fault, imperfection or shortcoming or inadequacy in the quality, nature or manner of performance which is required to be maintained by or under any law, for the time being in force, or undertaken to be performed by a person, in pursuance of a contract or otherwise, in relation to any service.
The hire purchase agreement, a copy of which is annexed to the Paper Book, clearly enabled the Financier to take possession of the vehicle, on default in payment of any of the instalments. There is no term in the Hire Purchase Agreement, that requires the Financier to give notice to the Complainant before terminating the Hire Purchase Agreement, upon breach of any term thereof, or before taking possession of the vehicle - the repossession of a vehicle under hire, in accordance with the terms and conditions of a hire purchase agreement, upon default in payment of hire instalments and refusal to release the same on mere assurance of the Complainant to clear outstanding arrears of hire instalments, and pay future instalments in time, does not constitute ‘deficiency’ in service.
The object of a notice before taking possession of a vehicle on hire under a Hire Purchase Agreement, is to enable the hirer, to make a written request to the Financier to revive the hire purchase agreement in terms of Clause 12 of the said agreement, upon payment of all outstanding dues together with damages, as might be mutually agreed upon - Such notice gives the hirer an opportunity to show that the hirer had not, in fact, committed any breach of agreement. For example, the hirer might be able to show that the Financier had erroneously omitted to give credit to the hirer for payments made, or had not presented a cheque in its possession for payment, even though there were sufficient funds in the concerned bank account of the hirer, to honour the cheque.
The evidence to which the Complainant drew the attention of the District Forum is apparent from its judgment and order. The Complainant produced a delivery receipt in respect of the vehicle, some payment receipts, Insurance papers in respect of the vehicle, an FIR unconnected with the Financier and/or copies thereof and some documents relating to the filing of the Complaint and payment of Court Fees etc., none of which establish any deficiency of service or unfair trade practice on the part of the Financier - No adverse inference could have been drawn against the Financier for not producing the Hire Purchase Agreement before the District Forum, when there was no allegation in the complaint of breach by the Financier of the Hire Purchase Agreement, in taking possession of the vehicle. The District Forum did not exercise its power under Section 13(4)(ii) to call upon the Financier to produce the Hire Purchase Agreement. Even otherwise, the District Forum did not direct the Financier to produce the Hire Purchase Agreement.
The Complainant has established that there was a discrepancy and/or error in the address of the Complainant in the notice for repossession, from which all the three fora under the Consumer Protection Act, 1986, that is the District Forum, the State Commission and the National Commission have concluded that possession of the vehicle was taken without notice. It was not the case of the Complainant that the vehicle was sold without notice to or knowledge of the complainant - the error and/or discrepancy in the address is minor and there are no materials on the basis of which the State Commission concluded that the error was deliberate. The finding of the State Commission, of the error in the address being deliberate, is unsubstantiated.
Whether the transaction between a Financier and a purchaser/hirer is a hire purchase transaction, or a loan transaction, might be determined from the terms of the agreement, considered in the light of surrounding circumstances. However, even a loan transaction, secured by right of seizure of a financed vehicle, confers licence to the Financier to seize the vehicle - In this case, the agreement executed by and between the Financier and the Complainant is a Hire Purchase Agreement as will appear from the terms and conditions thereof. In any event, the fora under the Consumer Protection Act, have not arrived at any specific finding to the contrary. There is no discussion of the nature of the agreement between the Financier and the Complainant. Be that as it may, the agreement clearly permits the Financier to take possession of the vehicle, upon default in payment of instalments.
In the instant case, there is no evidence of any loss suffered by the complainant by reason of non-receipt of notice. Admittedly, several instalments, remained unpaid. After repossession the complainant contacted the Financier and was informed of the reasons for the repossession. He only made an offer to pay outstanding instalments and gave an assurance to pay future instalments in time. If the Financier was not agreeable to accept the offer, the Financier was within its rights under the hire purchase agreement. This is not a case where payment had been tendered by the hirer but not accepted by the Financier/lender. The Complainant had not tendered payment - the District Forum was not justified in directing the Financier to pay the Complainant Rs.2,23,335/- being the entire amount paid by the Complainant to the Financier from the inception as well as the payment of Rs.1,04,000/- made by the Complainant to the dealer along with damage of Rs.10,000/- and litigation costs of Rs.1,000/after the Complainant had held and used the vehicle for almost a year. The Complainant, admittedly a defaulter, has in effect, been allowed free use of the vehicle for about a year, plus damages, for an error in the notice of repossession, without considering the prejudice, if any, caused to the complainant by the error and consequential non receipt of the notice, and without making any assessment of the loss, if at all, to the Complainant by reason of the error/omission.
The impugned orders of the National Commission, the State Commission and the District Forum, under the Consumer Protection Act, 1986 cannot be sustained and the same are set aside - Appeal allowed.
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2020 (10) TMI 1340
Seeking grant of Default Bail - default committed by the investigating agency in completing the investigation within the stipulated time - Section 167(2) Cr.P.C. - default bail sought on the ground that police failed to complete the investigation within the stipulated period of 90 days and filed only preliminary charge-sheet within the prescribed time - whether filing a preliminary charge-sheet without completing the investigation would defeat the right of the accused to claim default bail under proviso (a) to Section 167(2) Cr.P.C.?
HELD THAT:- It is relevant to note that the Parliament in its wisdom, considering the right of the accused to speedy investigation, stipulated period of time in proviso (a) to Section 167(2) Cr.P.C. stating that in all offences which are punishable with death or life imprisonment or with 10 years imprisonment, the investigation is to be completed within 90 days and in other offences, the investigation is to be completed within 60 days. The Code clearly envisaged that if the prosecuting agency fails to complete the investigation within the said stipulated period of time as contemplated under the Code, the accused is entitled to claim default bail. The said right conferred by the statute on the accused is an indefeasible right and he is entitled to bail as a matter of right on account of the default committed by the prosecuting agency in completing the investigation within the time stipulated by the statute.
It is significant to note that a plain reading of proviso (a) to Section 167(2) Cr.P.C. makes it manifest that what is required to claim for default bail under proviso (a) to Section 167(2) Cr.P.C. is failure on the part of the Investigating Agency to complete the investigation within the stipulated period of time - when the Investigating Agency files only preliminary charge-sheet within the said stipulated time keeping the investigation pending or without completing the investigation, it will not under any circumstances defeat the right conferred on the accused to claim for default bail. By mere filing a preliminary charge-sheet without completing the entire investigation and filing a final and full-fledged charge-sheet, the prosecuting agency cannot vanquish the indefeasible statutory right of the accused to claim for default bail.
A plain reading of Section 167 Cr.P.C. makes it abundantly clear that it is not the intention of the legislation that charge-sheet is to be filed within the stipulated period. The intention of the legislation is that the investigation is to be completed within the stipulated time. Nowhere in Section 167 Cr.P.C. it is stated that the charge-sheet is to be filed within the prescribed period of time. All that it is stated in Section 167 Cr.P.C. is that the investigation is to be completed within the said stipulated period of 90 days or 60 days, as the case may be - A preliminary charge-sheet filed without completing the entire investigation cannot be allowed to serve as an impediment to come in the way of exercising the statutory right of the accused for default bail.
After analysing the law on the point, it would be more in consonance with the legislative mandate to hold that mere filing preliminary charge-sheet without completing the investigation will not defeat the indefeasible statutory right of the accused to claim for default bail - when the law mandates that the Magistrate could authorise detention of the accused in custody up to a maximum period as indicated in the proviso to sub-section (2) of Section 167 Cr.P.C. any further detention beyond the period when, the investigation is not completed and the final charge-sheet is not filed on completion of the entire investigation by the Investigating Agency would be a subterfuge and would not be in accordance with law and in conformity with the provisions of the Criminal Procedure Code. Therefore, it could be violative of Article 21 of the Constitution of India.
The petition filed by the petitioner under proviso (a) to Section 167(2) Cr.P.C. stands allowed. The petitioner is ordered to be enlarged on bail on execution of self bond for Rs. 50,000/- with two sureties for like sum each to the satisfaction of the IV Additional Chief Metropolitan Magistrate, Vijayawada, Krishna District.
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2020 (10) TMI 1339
Maintainability of Special Leave Petition - HELD THAT:- There are no reason to interfere in the matters. The special leave petitions are dismissed.
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2020 (10) TMI 1335
Whether the statement made by the officer of the petitioner was without any power or authority and does not bind the petitioner? - HELD THAT:- The petitioners must be made to pay for the judicial time they have consumed but seeing our approach in the earlier matter, learned senior counsel himself was circumspect from beginning and thus, it is considered appropriate to only impose Rs.10,000/- as costs on the State Government for having approached this Court. The cost be recovered from the officer who took such a decision to come to this Court without taking any action against the officers and that too belatedly or responsible for the delay.
The costs be deposited with the Mediation and Conciliation Project Committee within a period of four weeks and a certificate of recovery be filed in this Court within the same period of time.
SLP dismissed on the ground of delay.
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2020 (10) TMI 1329
Exotic species - inclusion of vulnerable exotic animals/birds species in the definition of “exotic live species” in Part I (a) of the Advisory for dealing with import of exotic live species in India - nature and extent of immunity contemplated by the Advisory as also whether it would cover other vulnerable exotic live species which are not mentioned in the Appendices to the CITES - HELD THAT:- It appears that a Voluntary Disclosure Scheme has been introduced by the Central Government which gives an option to all the citizens of India to voluntarily declare their stock of exotic species enumerated in Appendices I, II and III of the CITES – International Convention, if at all they are in possession thereof, within six months from the date of issuance of Advisory i.e. w.e.f. 11th June, 2020 (Annexure P-2 collectively to the memo of this writ petition). As per the Scheme, the declarer will submit themselves to the provisions of the Scheme and thereafter maintain a statutory record as prescribed under the Scheme for any addition or reduction in the declared stock of exotic species, which will enable the Government to have a unified information system for the stock of exotic species at the State or Central Government level.
The window of six months for voluntary disclosure by allowing immunities only to those declarers who opt to file their voluntary disclosure declaration within six months from the date of issuance of the Advisory. Immunity is not provided to the declarers opting to disclose the stock once the period of six months is over from the date of issuance of the Advisory. The immunity contained in Clause I (b) of the Advisory as stated hereinabove for the declarers is not further clarified in the said Advisory. The petitioner is seeking directions so far as immunity is concerned, under the Voluntary Disclosure Scheme that there shall be no investigation into the acquisition or possession of exotic species once the declarer voluntarily discloses as per the Scheme - Once the immunity is granted under the Voluntary Disclosure Scheme, the respondent cannot investigate about the ownership, possession, trade, transportation, breeding, act of keeping, buying, selling and exhibiting such exotic animals/birds which are voluntarily disclosed by the declarer. The declarer would not be required to produce any documentation in relation to the exotic live species if the same has been declared within six months from the date of issuance of Advisory as per Part I Clause (b) of the Voluntary Disclosure Scheme. After six months’ period is over, from the date of issuance of the Advisory the declarer shall be required to comply with the documentation requirement under the extant laws and regulations.
Voluntary Disclosure Scheme invites the declarers, in public interest, by conferring immunity to them for a limited period (here six months) to promote the voluntary disclosure. Once such voluntary disclosure is made within the time limit prescribed, no inquiry or action can be initiated by the respondent for possession, breeding or transportation of the exotic species within India by the officers of any Government agency or Department whether of Central Government or State Government. Such action of subsequent inquiry by the Government after voluntary disclosure would be wholly illegal, arbitrary, unreasonable, unsustainable and would defeat the very purpose of the Voluntary Disclosure Scheme.
In view of the Article XIV to be read with affidavit filed by the respondent No. 1, especially in para 8L and 8AA to 9A, it has been expressed by the respondent that suggestion of the petitioner to enlarge the scope of the Advisory to all exotic live species is acknowledged because there are still other vulnerable exotic live species which are not mentioned in the Appendices I, II and III to the International Convention – CITES. Thus, the further Advisory can always be issued by the respondent keeping in mind the provisions of Article 48A and to be read with Article 51A(g) of the Constitution of India which are about protection and improvement of the environment and to safeguard the forest and wild life of the country. This obligation of the State extends to protecting exotic live species, beyond the Appendix to the CITES - International Convention.
The respondents are not obliged to make laws only in terms of CITES and can widen the scope of restrictions, having regard to the local conditions and circumstances - writ petition disposed off.
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