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Indian Laws - Case Laws
Showing 21 to 40 of 69 Records
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2020 (10) TMI 1311 - GUJARAT HIGH COURT
Seeking grant of Regular bail - previous bail application was withdrawn after filing of chargesheet and this bail application is also filed after filing of chargesheet - It is contended by the learned advocate for the petitioner that the victim was drunk and fell down in the well, but the complainant had got-up the story of throttle and thrown - offences under Sections 302, 201 and 114 of the Indian Penal Code - HELD THAT:- It would be appropriate to refer to the judgment of the Apex Court rendered in case of KALYAN CHANDRA SARKAR VERSUS RAJESH RANJAN @ PAPPU YADAV & ANR. [2005 (1) TMI 704 - SUPREME COURT], wherein it is held that “this Court also observed that though the accused has a right to make successive application for grant of bail, the Court entertaining such subsequent bail applications has duty to consider the reaosns and grounds on which the earlier bail applications were rejected and in such cases, the Court also has a duty to record what are the fresh grounds which persuaded it to take a view different from the one taken in the earlier application.”
In the case on hand, the previous bail application was withdrawn after filing of chargesheet and this bail application is also filed after filing of chargesheet. The learned advocate for the petitioner has not been able to piont out any change in the circumstances - Under the circumstances, in absence of any change in circumstances, no ground is made out by the petitioner as observed by the Apex Court.
Application dismissed.
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2020 (10) TMI 1295 - SUPREME COURT
Licit acquisition and possession of the exotic animals/birds - Issuance of direction to enable the officers of the Directorate of Revenue Intelligence and the officers of Wildlife Crime Control Bureau, to inquire from the 'declarants' under the newly introduced "Voluntary Disclosure Scheme" - HELD THAT:- The SLP is dismissed.
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2020 (10) TMI 1293 - SUPREME COURT
Exemption to factories from observing some of the obligations which employers have to fulfil towards the workmen employed by them - validity of the state's notifications dated 17 April 2020 and 20 July 2020 - whether the notifications fall within the ambit of the power conferred by Section 5 of the Factories Act?
HELD THAT:- The validity of the notifications depends on whether the COVID-19 pandemic and the nationwide lockdown qualify as a 'public emergency' as defined in Section 5. The statute provides both the language and the dictionary to interpret it - Section 5 of the Factories Act provides that in a public emergency, the State Government can exempt any factory or class or description of factories from all or any of the provisions of the Act, except Section 67.
Principle of proportionality - HELD THAT:- The explanation to Section 5 was introduced by the Factories (Amendment) Act of 1976 - Amending Act 94 of 1976 - with effect from 26 October 1976. Interestingly, it was an amendment which was brought in during the internal emergency declared in June 1975 purportedly on account of "internal disturbances". The effect of the explanation is to circumscribe the ambit of what constitutes a public emergency. The explanation constricts the expression in two ways: first, by confining it to specific causes; and second, by requiring that a consequence must have emanated from those causes before the power can be exercised. Under Section 5 a situation can qualify as a 'public emergency', only if the following elements are satisfied: (i) there must exist a "grave emergency"; (ii) the security of India or of any part of its territory must be "threatened" by such an emergency; and (iii) the cause of the threat must be war, external aggression or internal disturbance. The existence of the situation must be demonstrated as an objective fact. The co-relationship between the cause and effect must exist. Implicitly therefore, the statutory provision incorporates the principle of proportionality.
Precedent on 'public emergency' and 'security of the state' - HELD THAT:- The powers Under Article 352 have been invoked thrice by the President to declare an emergency. An emergency was declared for the first time in 1962 due to the Chinese aggression on Indian territory. The emergency was revoked in 1968. In 1971, when hostilities broke out with Pakistan, an emergency was proclaimed by the President on the ground that the security of India was threatened by external aggression. While this proclamation was in force, another proclamation was issued by the President on 25 June 1975 declaring that a "grave emergency exists whereby the security of India is threatened by 'internal disturbance'." Both these proclamations were revoked in March 1977 - The Parliamentary amendments to Article 352 are the product of experience: experiences gained from the excesses of the emergency, experiences about the violation of human rights and above all, experiential learning that the amalgam of uncontrolled power and unbridled discretion provide fertile conditions for the destruction of liberty. The sobering lessons learnt from our not-too-distant history should warn us against endowing a statute with similar terms of a content which is susceptible of grave misuse.
Interpreting 'public emergency' in Section 5 of the Factories Act, 1962 - HELD THAT:- The economic hardships caused by COVID-19 certainly pose unprecedented challenges to governance. However, such challenges are to be resolved by the State Governments within the domain of their functioning under the law, in coordination with the Central Government. Unless the threshold of an economic hardship is so extreme that it leads to disruption of public order and threatens the security of India or of a part of its territory, recourse cannot be taken to such emergency powers which are to be used sparingly under the law. Recourse can be taken to them only when the conditions requisite for a valid exercise of statutory power exist Under Section 5. That is absent in the present case.
Scheme and Objects of the Factories Act, 1962 - HELD THAT:- While enacting the Factories Act, Parliament was cognizant of the occasional surge of the demand for, or requirement of, the manufacture of certain goods which would demand accelerated production. The law - makers were aware of the exigencies of the war effort of the colonial regime in World War II, with its attendant shortages, bottlenecks and, in India, famine as well. Section 64(2) of the Factories Act envisages exemption from certain provisions relating to working hours in Chapter VI, for instances such as urgent repairs, supplying articles of prime necessity or technical work, which necessarily must be carried on continuously. Section 65(2) enables classes of factories to be exempt from similar provisions in order to enable them to cope with an exceptional pressure of work. However, these exemptions are circumscribed by Section 64(4) and 65(3) respectively, at limits that are significantly less onerous than those prescribed by the notifications in question.
The impugned notifications do not serve any purpose, apart from reducing the overhead costs of all factories in the State, without regard to the nature of their manufactured products. It would be fathomable, and within the realm of reasonable possibility during a pandemic, if the factories producing medical equipment such as life-saving drugs, personal protective equipment or sanitisers, would be exempted by way of Section 65(2), while justly compensating the workers for supplying their valuable labour in a time of urgent need. However, a blanket notification of exemption to all factories, irrespective of the manufactured product, while denying overtime to the workers, is indicative of the intention to capitalize on the pandemic to force an already worn-down class of society, into the chains of servitude.
Social and Economic Value of 'Overtime' - HELD THAT:- The need for protecting labour welfare on one hand and combating a public health crisis occasioned by the pandemic on the other may require careful balances. But these balances must accord with the Rule of law. A statutory provision which conditions the grant of an exemption on stipulated conditions must be scrupulously observed. It cannot be interpreted to provide a free reign for the State to eliminate provisions promoting dignity and equity in the workplace in the face of novel challenges to the state administration, unless they bear an immediate nexus to ensuring the security of the State against the gravest of threats - The provisions embodied in Chapter VI of the Factories Act reflect hard-won victories of masses of workers to ensure working conditions that uphold their dignity.
Constitutional vision of social and economic democracy - HELD THAT:- The Constitution allows for economic experiments. Judicial review is justifiably held off in matters of policy, particularly economic policy. But the Directive Principles of State Policy cannot be reduced to oblivion by a sleight of interpretation. To a worker who has faced the brunt of the pandemic and is currently laboring in a workplace without the luxury of physical distancing, economic dignity based on the rights available under the statute is the least that this Court can ensure them - The 'right to life' guaranteed to every person Under Article 21, which includes a worker, would be devoid of an equal opportunity at social and economic freedom, in the absence of just and humane conditions of work. A workers' right to life cannot be deemed contingent on the mercy of their employer or the State. The notifications, in denying humane working conditions and overtime wages provided by law, are an affront to the workers' right to life and right against forced labour that are secured by Articles 21 and 23 of the Constitution.
This Court is cognizant that the Respondent aimed to ameliorate the financial exigencies that were caused due to the pandemic and the subsequent lockdown. However, financial losses cannot be offset on the weary shoulders of the laboring worker, who provides the backbone of the economy. Section 5 of the Factories Act could not have been invoked to issue a blanket notification that exempted all factories from complying with humane working conditions and adequate compensation for overtime, as a response to a pandemic that did not result in an 'internal disturbance' of a nature that posed a 'grave emergency' whereby the security of India is threatened. In any event, no factory/classes of factories could have been exempted from compliance with provisions of the Factories Act, unless an 'internal disturbance' causes a grave emergency that threatens the security of the state, so as to constitute a 'public emergency' within the meaning of Section 5 of the Factories Act.
Notification No. GHR/2020/56/FAC/142020/346/M3 dated 17 April 2020 and Notification No. GHR/2020/92/FAC/142020/346/M3 dated 20 July 2020 issued by the Labour and Employment Department of the Respondent State, are quashed - petition allowed.
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2020 (10) TMI 1291 - MADRAS HIGH COURT
Seeking grant of anticipatory bail - civil proceedings given in a criminal colour or not - collection/recovery agent for commercial transaction between the parties - Section 138 of the Negotiable Instruments Act, 1881 - HELD THAT:- A mere breach of a promise, agreement or contract does not, ipso facto, constitute a criminal breach of trust, without there being a clear case of entrustment. Further, the transaction had taken place in the year 2008 and the complaint was lodged in the year 2015. For constituting an offence of cheating, the complainant is required to show that the petitioner had fraudulent or dishonest intention at the time of making promise or representation. In this case, no such promise or representation was made by the petitioner. The transaction between the petitioner and the 2nd respondent is a contract, mere failure of agreement and contract would not lead to offence of cheating and misappropriation. The 2nd respondent to recover the amount and its dues, instituted civil proceedings, seeking recovery of loan amount, which is still pending for adjudication. It is observed in this case that it is difficult to establish conspiracy by direct evidence or to infer in the absence of any such averments.
This Court finds that the dispute between the parties constitute only a civil wrong and not a criminal wrong. The Hon'ble Apex Court in the case of Inder Mohan Goswami Versus State of Uttaranchal [2007 (10) TMI 550 - SUPREME COURT], elaborately dealt on this aspect, questioned dual the proceedings and observed that the criminal prosecution are not to be used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused when dispute between the parties constitute only a civil wrong and not a criminal wrong and also observed that allowing the proceedings to continue would be an abuse of process of Court or that the ends of justice require that the proceedings ought to be quashed.
It is clear that a civil dispute has been given in a criminal colour. At the most, it can only be said that the inability of the petitioner to return the loan amount cannot give rise to criminal prosecution. The respondent by himself and his family members, instituted a civil proceedings for seeking recovery of loan amount - Petition allowed - decided in favor of appellant.
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2020 (10) TMI 1289 - PUNJAB AND HARYANA HIGH COURT
Cheating - fraudulent representation of providing 2 BHK flat and dishonestly induced to pay the amount of ₹ 9,04,429/- - petitioners neither gave the flat nor returned the money - petitioners were declared proclaimed persons under Section 82 of the Cr.P.C. - petitioners were absconding or not - HELD THAT:- The learned Chief Judicial Magistrate, Karnal did not record her satisfaction that in view of the material on record there was reasonable ground to believe that the petitioners had absconded or were concealing themselves so that warrant of arrest issued against them could not be executed. Consequently, the condition essential for issuance of proclamation against the petitioners was not satisfied.
In the present case vide order dated 02.08.2019 proclamation was ordered to be published against the petitioners under Section 82 of the Cr.P.C. requiring the petitioners to appear before the Court on 04.09.2019. The proclamation was published by SI Dharampal on 04.09.2019 and the petitioners did not get statutory minimum period of thirty days for their appearance before the Court on 04.09.2019 - Vide order dated 04.09.2019 learned Chief Judicial Magistrate, Karnal adjourned the case to 05.10.2019 for awaiting the appearance of the petitioners on the ground that statutory period of thirty days had not elapsed. Learned Chief Judicial Magistrate, Karnal could not extend the time by simply adjourning the case for awaiting appearance of the petitioners and was mandatorily required to issue the proclamation again for publication thereof in accordance with the provisions of Section 82(2) of the Cr.P.C.
It follows that the petitioners were wrongly declared proclaimed persons vide impugned order dated 05.10.2019 in breach of the prescribed procedure and impugned order dated 05.10.2019 suffers from material illegality and is liable to the set aside - Petition allowed.
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2020 (10) TMI 1284 - ALLAHABAD HIGH COURT
Seeking grant of regular bail - on being enlarged on interim bail, the applicant filed regular bail application under Section 439 Cr.P.C. - learned A.S.G.I. in rebuttal submits that the statement of P.W.-3 cannot be relied upon; P.W.-3 was summoned only to verify the hotel guest register; he further submits that P.W.-3 could not tell the exact date of C.B.I. raid - HELD THAT:- Without expressing any opinion on the merits of the case and considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, reasonable apprehension of tampering of the witnesses and prima facie satisfaction of the Court in support of the charge, the applicant is entitled to be released on bail in this case.
Let the applicant- Ranveer Singh @ Ranbir Singh involved in 120B I.P.C. and Section 7, 7A & 8 of the Prevention of Corruption Act, 1988, be released on bail on his furnishing a personal bond of Rs. One lac with two sureties (one should be of his family members) each in the like amount to the satisfaction of the court concerned with the following conditions imposed.
Application allowed.
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2020 (10) TMI 1281 - SUPREME COURT
Seeking grant of Interim Bail - bail sought on medical grounds for a period of two months while directing listing of the regular Bail Application - HELD THAT:- The report of the S.G.P.G.I.M.S., i.e., the super-speciality hospital, which was on the record as well as report of the medical board dated 10.06.2020, which was brought in the notice of the High Court have neither been considered nor referred to by the High Court in the impugned order. When the Respondent was being given treatment in the super-speciality hospital, i.e., S.G.P.G.I.M.S. as recommended by K.G.M.U., we fail to see as to what were the shortcomings in the medical treatment offered to Respondent, which could have been the basis for grant of interim bail on medical ground. Further, as per condition (ii) mentioned in paragraph 27, the High Court contemplated that Respondent shall ordinarily reside at a place of residence, as assured, far from the place of residence of the prosecutrix and her immediate family, thus, the contemplation was that Respondent shall reside at his residence. There was no satisfaction recorded by the High Court that treatment offered to Respondent was not adequate and he requires any further treatment by any particular medical institute for which it is necessary to release the Respondent on interim bail on medical grounds.
Humane treatment to all including an Accused is requirement of law. Furthermore, a prisoner, who is suffering from an ailment, has to be given due treatment and care while in prison.
Even as on date, due medical care is being taken of the Respondent, which is apparent from the additional documents filed as Annexure A-2 and Annexure A-3 alongwith the application dated 10.10.2020. The High Court, without considering the entire materials on record, has passed the impugned order dated 03.09.2020, which is unsustainable - Appeal allowed.
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2020 (10) TMI 1265 - CALCUTTA HIGH COURT
Seeking to allow substantial concession in fees as the physical conduct of classes has not been possible for more than six months and normal functioning may not resume in a full-fledged manner for several months more - COVID-19 pandemic situation.
Sanjib Banerjee, J.
HELD THAT:- In the light of the discussion and purely as a one-time measure necessitated by the present unprecedented situation, the following directions are issued:
i. There will no increase in fees during financial year 2020-21.
ii. From the month beginning April, 2020 till the month following the one in which the schools reopen in the physical mode, all 145 schools will offer a minimum of 20 per cent reduction of fees across the board. Non-essential charges for use of facilities not availed of will not be permissible. For instance, additional charges for laboratory, craft, sporting facilities or extracurricular activities or the like will not be permissible during the months that the schools have not functioned in the physical mode. Session fees traditionally charged periodically will be permissible, but again, subject to a maximum of 80 per cent of the quantum charged for the corresponding period in the financial year 2019-20.
iii. The minimum figure of 20 per cent reduction in the monthly tuition fees will be on the basis of the tuition fees charged for the corresponding month in the previous financial year.
iv. For the financial year 2020-21, a maximum of five per cent excess of revenue over expenditure will be permissible; the balance excess (without any mathematical precision) should be passed on by way of general concession or special concession in individual cases of extreme distress. If any school makes a loss as a consequence of following these directions, such loss can be made up in course of the next two financial years, 2021-22 and 2022-23, if normal physical functioning resumes by March 31, 2021.
v. No amount towards the arrears on account of revision of pay to teachers or other employees can be passed on in the fees for financial year 2020-21. The amount on account of arrears may be recovered in 2021-22 and 2022-23, if normal physical functioning resumes by March 31, 2021.
vi. There will be no increase in salaries of teachers or of other employees during financial year 2020-21. If any individual school has given effect to a higher pay-scale, the difference must not be realised out of the school fees during the financial year 2020-21.
vii. Parents and guardians of students are requested not to avail of the reduction in schools fees, if their financial situation does not merit the reduction. However, if any set of guardians or parents obtains the benefit, no questions in such regard can be asked.
viii. In addition to the across-the-board reduction, every school
will entertain applications from parents or guardians for further reduction or waiver or exemption or delayed or installment payments, as the case may be. Every application in such regard must be supported by the financial statements of the parents or guardians so as to justify the request. The financial statements should be certified by any qualified auditor and accompanied by a declaration by the applicant parent or guardian verifying the particulars to be true and correct.
ix. Each application will be considered on merit. Such applications have to be filed before the respective schools by November 15, 2020 and every application should be dealt with on an individual basis and a decision communicated to the applicant by December 31, 2020. Till the decision on the individual application is communicated and for a further period of two months thereafter, no coercive action should be taken against the relevant student. In other words, the student must be allowed every facility that a similarly placed other student would enjoy, including the name of such student being put forward for the board examinations, subject, however, to the fees payable to the board being tendered within time on behalf of the relevant student.
x. When an application for further reduction or waiver or exemption or delayed payment of fees has been disposed of by the relevant school but the parents or guardians are aggrieved by the decision, an application may be filed, upon deposit of ₹ 1000/-, to a committee for further adjudication of the request and to assess the decision communicated by the relevant school. Such application has to be filed within 10 days of the rejection, in full or part, of the request being communicated to the relevant parents or guardians.
xi. The committee referred to in the immediate preceding clause will be headed by Mr Tilok Bose, Senior Advocate as its chairperson and will be assisted by the Headmistress or Principal (the occupant of the higher of the two offices, if they are two) of Heritage School and Ms Priyanka Agarwal, Advocate for the parents in WPA 5890 of 2020. The committee will be empowered to engage an auditor or a firm of chartered accountants to assist the committee. The committee and the auditor appointed by the committee will look into the extent of reduction or exemption or the like sought and the feasibility thereof on the basis of the accounts of the relevant school for the financial year 2019- 20 and the financial figures for the first six months of the financial year 2020-21 as certified by the auditors of the relevant school. The two other members of the committee will assist the chairperson of the committee to arrive at an appropriate decision, but the chairperson will have the final say therein.
xii. The deposit obtained by the committee will be retained by the committee and ₹ 800/- therefrom disbursed to the auditor or firm of chartered accountants for the first time the accounts of a particular school need to be assessed by the auditor or firm of chartered accountants. For every repeat exercise, meaning studying the accounts of the same school from the second time onwards, ₹ 500/- per case will be paid to the auditors. The balance amount in the hands of the committee will be used for the purpose of secretarial and managerial services the committee may be required to obtain. Any ultimate surplus has to be made over to court for the same to be dealt with in accordance with law. No remuneration is provided for any of the members of the committee and the court hopes that the members nominated graciously accept this onerous task in the larger public interest.
xiii. By November 30, 2020, the committee should indicate a dedicated e-mail account whereat the appeals against the decisions of the schools may be filed. The e-mail ID should be communicated to Advocate-on-record for the petitioner in the lead matter for it to be disseminated to all parents and guardians. The money required to be deposited will be tendered in cash to a secretary or manager as may be indicated by the committee. The application will be deemed complete only upon the grievance in writing being forwarded to the relevant e-mail account and the deposit being made. No application will be entertained without the deposit being tendered. Full accounts of the monies received and expenses incurred must be maintained and presented in court, when sought.
xiv. All schools should have the accounts for the financial year 2019-20 ready and also the accounts for the period of April to September, 2020 ready to be furnished within two days of the demand therefor by the committee.
xv. Every application made before the committee must clearly indicate the name and other particulars of the student involved and furnish the e-mail ID of the school and its Principal or the like for the committee to communicate with the school.
xvi. The committee must endeavour to dispose of every application within 45 days of the receipt thereof and the decision of the committee will be binding, subject to the relevant schools having a right to apply to this court in the present proceedings for the reconsideration thereof on cogent grounds. Till a dispute between the parents or guardians of a particular student and the relevant school is finally decided, no coercive action against the student may be taken by the school, whether to disallow the student from attending class in any form or taking any examination or for the candidature of such student being forwarded for any board examination (subject to the board’s fees being tendered).
xvii. The quantum of fees to be charged for every month will be indicated by the individual schools on any website and the notice-boards of the schools and informed to Advocate for the petitioner in WPA 5890 of 2020 for the same to be put up on a website that such petitioner must set up for this purpose. The fees payable for every month and the other periodic charges, like session fees, for the entire financial year 2020-21 should be indicated by the individual schools and put up on the website to be set up by the petitioner in WPA 5890 of 2020 by October 31, 2020.
xviii. By November 30, 2020, the fees payable in terms of this order for the period up to November 30, 2020 should be tendered on behalf of all students of the 145 schools. To the extent the parents or guardians of the students apply for further reduction or waiver or exemption, they can pay the amount as possible by November 30, 2020 and copies of the applications for further reduction or the like should be deposited by such date.
xix. With effect from December 8, 2020 all schools will be entitled to disallow students whose fees have not been paid in full in terms of this order and those who have not applied for reduction or waiver or the like. However, schools should ensure that this extreme step is taken only after exercising due care and caution.
xx. No student will be entitled to apply for a transfer certificate without the full quantum of fees in terms of this order being first discharged.
xxi. For the purpose of clarity, it is reiterated that fees payable by students to boards for examinations or otherwise shall have to be paid in addition to the monthly fees and other charges in terms of this order and no waiver or reduction of the fees or charges payable to the boards may be sought or granted.
xxii. There will be no refund of the fees already paid. However, to the extent fees have already been paid which are in excess of the directions contained herein, suitable adjustments will be made over the remaining months of the financial year, unless the parents agree in writing otherwise.
xxiii. The expenses incurred for developing the infrastructure of the schools should not be passed on to the students during the current financial year, though it will be open to recover the same from the students from financial year 2021-22 onwards, if the physical functioning resumes by March 31, 2021.
xxiv. The cap of five per cent of the revenue over expenditure for the year 2020-21 will be subject to the exception that it may exceed the five per cent only if the general reduction afforded to the parents is not availed of by any of the parents and no student in financial distress has been denied additional concession despite being worthy.
xxv. No unusual expense should be incurred during financial year 2020-21 and no development or infrastructure expense should be incurred unless absolutely unavoidable.
xxvi. These directions will continue till such time that physical functioning of the schools resumes in the normal course.
xxvii. The above directions for any form of concession will not apply to any of the 145 schools where the average monthly fee (calculated on an annual basis over the year from April, 2020 to March, 2021) is less than ₹ 800/-. However, such schools may voluntarily take such measures as deemed fit. The exception carved out is perceived to be reasonable since the quantum of concession in such cases will be nominal and the elaborate exercise may be unnecessary as the extent of possible profit is unlikely to be significant. But the monthly fees payable in such cases must be put up on the notice-boards and websites as in the other cases and without exception.
xxviii.The other private unaided schools in the State should also abide by the directions mutatis mutandis, particularly since the matter has been heard extensively and as public interest litigation. However, only the disputes pertaining to the 145 schools included in WPA 5890 of 2020 may be referred to the committee constituted herein; and not the disputes pertaining to other private unaided schools in the State.
Moushumi Bhattacharya, J.
We repose faith in the fairness and competence of the Committee to take the process forward. We also wish to record our appreciation for counsel who have been extremely helpful with their suggestions for finding the best solution to the problem keeping the interest of the students foremost in their minds. Since the writ petitions are being made returnable on 7th December, 2020, the implementation of the directions will continue to be monitored by the court.
Later:
Some of the appearing schools seek a stay of the operation of the order. Such prayer is considered and declined.
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2020 (10) TMI 1264 - BOMBAY HIGH COURT
Dishonor of cheque - direction to deposit 20% of the cheque amount by way of interim compensation proportionately - applicant submits that the applicant had signed the cheque in question as an authorized signatory of the Company and that there is a difference between an authorized signatory and a drawer - HELD THAT:- Issue notice to the respondents, returnable on 4th December, 2020. Learned APP waives notice on behalf of the Respondent No.1-State. Learned Counsel for the applicant to serve the Respondent No.2, by private notice and file affidavit of service before the next date.
In the meantime, till the next date, the impugned order dated 24th February, 2020, passed by the learned Metropolitan Magistrate, 33 rd Court, Ballard Pier, Mumbai, in C.C. No.11994/SS of 2018, is stayed.
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2020 (10) TMI 1258 - SUPREME COURT
Permission to travel abroad - appellant sought the leave of the High Court to do so since as a Green Card holder, it was mandatory for him to return to the US within a stipulated period of his departure from that country - allegation is that the appellant has not complied with the conditions on which he was granted interim bail - offence of fabrication of power of attorney - forging the signature of his brother - whether the appellant should be permitted to travel to the US for eight weeks? - HELD THAT:- The details which have been furnished to the Court by the appellant, indicate that he has regularly travelled between the US and India on as many as sixteen occasions between 2015 and 2020. He has maintained a close contact with India. The view of the High Court that he has no contact with India is contrary to the material on record. The lodging of an FIR should not in the facts of the present case be a bar on the travel of the appellant to the US for eight weeks to attend to the business of revalidating his Green Card. The conditions which a court imposes for the grant of bail – in this case temporary bail – have to balance the public interest in the enforcement of criminal justice with the rights of the accused. The human right to dignity and the protection of constitutional safeguards should not become illusory by the imposition of conditions which are disproportionate to the need to secure the presence of the accused, the proper course of investigation and eventually to ensure a fair trial. The conditions which are imposed by the court must bear a proportional relationship to the purpose of imposing the conditions. The nature of the risk which is posed by the grant of permission as sought in this case must be carefully evaluated in each case.
Having regard to the genesis of the dispute as well as the issue as to whether the appellant is likely to flee from justice if he were to be permitted to travel to the US, we find, on the basis of the previous record of the appellant, that there is no reason or justification to deny him the permission which has been sought to travel to the US for eight weeks. The appellant is an Indian citizen and holds an Indian passport. While it is true that an FIR has been lodged against the appellant, that, in our view, should not in itself prevent him from travelling to the US, where he is a resident since 1985, particularly when it has been drawn to the attention of the High Court and this Court that serious consequences would ensue in terms of the invalidation of the Green Card if the appellant were not permitted to travel. The record indicates the large amount of litigation between the family of the appellant and the complainant.
The passport of the appellant shall be handed over to the appellant to facilitate his travel, subject to the condition that he shall deposit it with the investigating officer immediately on his return - Application allowed.
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2020 (10) TMI 1251 - SUPREME COURT
Refusal to entertain an application under Order 8 Rule 1A(3) of the Code of Civil Procedure, 1908 - seeking leave of the court to produce additional documents - HELD THAT:- Subrule (1) mandates the defendant to produce the documents in his possession before the court and file the same along with his written statement. He must list out the documents which are in his possession or power as well as those which are not. In case the defendant does not file any document or copy thereof along with his written statement, such a document shall not be allowed to be received in evidence on behalf of the defendant at the hearing of the suit - Subrule (3) states that a document which is not produced at the time of filing of the written statement, shall not be received in evidence except with the leave of the court. Rule (1) of Order 13 of C.P.C. again makes it mandatory for the parties to produce their original documents before settlement of issues.
It is often said that procedure is the handmaid of justice. Procedural and technical hurdles shall not be allowed to come in the way of the court while doing substantial justice. If the procedural violation does not seriously cause prejudice to the adversary party, courts must lean towards doing substantial justice rather than relying upon procedural and technical violation.
Coming to the present case, the defendants have filed an application assigning cogent reasons for not producing the documents along with the written statement. They have stated that these documents were missing and were only traced at a later stage. It cannot be disputed that these documents are necessary for arriving at a just decision in the suit - the courts below ought to have granted leave to produce these documents.
Appeal allowed - decided in favor of appellant.
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2020 (10) TMI 1250 - HIMACHAL PRADESH HIGH COURT
Maintainability of petition - HELD THAT:- Subject to deposit of ₹ 3,50,000/-, in the Registry of this Court within eight weeks from today, in addition to any other amount, if any, deposited in the trial Court, sentence imposed upon the petitioner vide judgment dated 5.5.2016 by learned Additional Chief Judicial Magistrate, Court No.1, Sundernagar, District Mandi, HP in Criminal Complaint No. 198-1/2014 and affirmed by learned Additional Sessions Judge, Sundernagar, District Mand - The bail bonds, so furnished by applicant/petitioner, shall be transmitted to the Registry of this Court for placing the same on record. Alteration/vacation/modification on motion.
Application disposed off.
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2020 (10) TMI 1249 - SUPREME COURT
Grant of default bail/statutory bail - condition of deposit of amount as imposed by the High Court, valid or not - HELD THAT:- The High Court has committed a grave error in imposing condition that the appellant shall deposit a sum of ₹ 8,00,000/- while releasing the appellant on default bail/statutory bail. It appears that the High Court has imposed such a condition taking into consideration the fact that earlier at the time of hearing of the regular bail application, before the learned Magistrate, the wife of the appellant filed an affidavit agreeing to deposit ₹ 7,00,000/-.
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. - reliance placed in the case of RAKESH KUMAR PAUL VERSUS STATE OF ASSAM [2017 (8) TMI 1526 - SUPREME COURT].
Direction to appellant to report before the concerned police station daily at 10:00 a.m., until further orders, for interrogation - HELD THAT:- The same is also unsustainable, as it is too harsh. Instead, condition which can be imposed is directing the appellant to cooperate with the investigating officer in completing the investigation and to remain present before the concerned police station for investigation/interrogation as and when called for, and on breach the investigating officer can approach the concerned court for cancellation of the bail on breach of such condition.
The direction to appellant to deposit ₹ 8,00,000/- before the learned Judicial Magistrate, Court No.1, Nagercoil, Kanyakumari District, while releasing the appellant on default bail, is hereby quashed and set aside - the appellant shall co-operate with the investigating agency and shall report the concerned police station as and when called for investigation/interrogation and on non-cooperation, the consequences including cancellation of the bail shall follow - appeal allowed.
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2020 (10) TMI 1244 - SUPREME COURT
Grant of Default Bail - time limitation - application for grant of default bail is made on expiry of the period of 90 days - Section 167(2) of Indian Penal Code - HELD THAT:- On the facts of the present case, the High Court was wholly incorrect in stating that once the challan was presented by the prosecution on 25.03.2019 as an application was filed by the Appellant on 26.03.2019, the Appellant is not entitled to default bail. First and foremost, the High Court has got the dates all wrong. The application that was made for default bail was made on or before 25.02.2019 and not 26.03.2019. The charge sheet was filed on 26.03.2019 and not 25.03.2019. The fact that this application was wrongly dismissed on 25.02.2019 would make no difference and ought to have been corrected in revision. The sole ground for dismissing the application was that the time of 90 days had already been extended by the learned Sub-Divisional Judicial Magistrate, Ajnala by his order dated 13.02.2019. This Order was correctly set aside by the Special Court by its judgment dated 25.03.2019, holding that under the UAPA read with the NIA Act, the Special Court alone had jurisdiction to extend time to 180 days under the first proviso in Section 43-D(2)(b). The fact that the Appellant filed yet another application for default bail on 08.04.2019, would not mean that this application would wipe out the effect of the earlier application that had been wrongly decided. We must not forget that we are dealing with the personal liberty of an Accused under a statute which imposes drastic punishments. The right to default bail, as has been correctly held by the judgments of this Court, are not mere statutory rights under the first proviso to Section 167(2) of the Code, but is part of the procedure established by law Under Article 21 of the Constitution of India, which is, therefore, a fundamental right granted to an Accused person to be released on bail once the conditions of the first proviso to Section 167(2) are fulfilled.
The Appellant will now be entitled to be released on "default bail" Under Section 167(2) of the Code, as amended by Section 43-D of the UAPA - Appeal allowed.
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2020 (10) TMI 1239 - KARNATAKA HIGH COURT
Permission for withdrawal of petition - writ petition filed as a public interest litigation at the instance of the petitioner - HELD THAT:- The petition is disposed of as unconditionally withdrawn. However, we make it clear that we have made no adjudication on the issues raised on the merits of the petition. All the pending applications do not survive for consideration and are accordingly disposed of.
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2020 (10) TMI 1231 - SUPREME COURT
Condonation of delay of 663 days in filing appeal - delay due to unavailability of the documents and the process of arranging the documents - the issue raised is that if the Government machinery is so inefficient and incapable of filing appeals/petitions in time, the solution may lie in requesting the Legislature to expand the time period for filing limitation for Government authorities because of their gross incompetence - HELD THAT:- A preposterous proposition is sought to be propounded that if there is some merit in the case, the period of delay is to be given a go-by. If a case is good on merits, it will succeed in any case. It is really a bar of limitation which can even shut out good cases. This does not, of course, take away the jurisdiction of the Court in an appropriate case to condone the delay.
The object appears to be to obtain a certificate of dismissal from the Supreme Court to put a quietus to the issue and thus, say that nothing could be done because the highest Court has dismissed the appeal. It is to complete this formality and save the skin of officers who may be at default that such a process is followed. We have on earlier occasions also strongly deprecated such a practice and process. There seems to be no improvement - It is presumed that this Court will condone the delay and even in making submissions, straight away counsels appear to address on merits without referring even to the aspect of limitation as happened in this case till we pointed out to the counsel that he must first address us on the question of limitation.
Looking to the period of delay and the casual manner in which the application has been worded, it is considered appropriate to impose costs on the Petitioner-State of ₹ 25,000/- to be deposited with the Mediation and Conciliation Project Committee. The amount be deposited in four weeks. The amount be recovered from the officers responsible for the delay in filing the special leave petition and a certificate of recovery of the said amount be also filed in this Court within the said period of time - SLP dismissed.
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2020 (10) TMI 1219 - GUJARAT HIGH COURT
Approval of revised rates of license fees for the advertising hoardings in private properties - collection of license fees in garb of tax for the advertisement hoardings in the private properties - HELD THAT:- The petitioners have consistently paid the license fees on the advertisement hoardings in a private property as per the provision of Section 386(2) of the GPMC Act prior to 1992 onwards and at no point of time the petitioners have challenged the power to levy the license fees under the provisions of Section 386(2) of the GPMC Act. It is also pertinent to note that in the year 2012, the petitioners agreed for levy of the license fees by enhancing the rate by 10% every year after initial embargo of 5 years. Thus, the petitioners can be said to have waived the right to challenge the power to levy of fees for the license for outdoor advertising hoardings in private properties.
When an Article of Constitution is an enabling provision, it does not mean that the State is obligated to provide for such a statute and on that ground existing laws could be stuck down only on that premise - Section 386(2) of the GPMC Act is in operation since 1949 and the challenge thereto being ultra vires to the Articles of the Constitution would result in detriment to the public interest since the amount of license fee being collected by the Municipal Corporation along with the other amount collected by way of tax or otherwise are always being utilized for the benefit of people at large.
The Court should be conscious of the position as to the extent of public interest involved when the provisions operate the field as against the prevention of such operation. Even if the writ court is of the view that the challenge raised requires to be considered, then again it will have to be examined, while entertaining the challenge raised for consideration, whether it calls for prevention of the operation of the provisions in the larger interests of the public. An attempt has been made only to set out some of the basic consideration to be borne in mind by the writ court and the same is not exhaustive. In other words, the writ court should examine such other grounds for consideration while considering a challenge on the ground of vires to a statute or the provision of law made before it for the purpose of entertaining it and when such writ petitions are entertained, those petitions should be disposed of as expeditiously as possible and on a time-bound basis, so that the legal position is settled one way or the other.
On bare perusal of Sub-section-2 of Section-386 of the GPMC Act, it cannot be said that the Commissioner has excessive delegation because license fees which may be charged by the Commissioner shall come into effect only after the sanction of the Corporation and not otherwise. Thus, in effect sub-section-2 provides for procedure and limits in form of checks and balances to control the power conferred upon the Commissioner to levy the fees for the licenses to be issued as per Subsection-1 of Section 386 - It is also pertinent to note that Subsection-2 starts with the words “except as may otherwise be provided by and under this Act”, which means that it is an exception carved out from other provisions of the Act providing for any fees of license which may be issued under Sub-section-1 of Section 386. The Commissioner of the Municipal Corporation is therefore, empowered to levy fee at such rate from time to time which may be fixed but such power is subject to the sanction of the Corporation.
The fees to be charged as per the provisions of Sub-section-2 of Section 386 cannot be said to be having unbridled or unfettered power. It is also evident from the materials on record that the levy of fees to be charged for advertisement hoardings in private properties does not become effective immediately when the Commissioner proposes unless and until the same is approved by the Standing Committee which in turn is required to be approved and sanction by the Corporation as provided under Sub-section-2 of Section-386 of the GPMC Act.
The provisions of Sub-section-2 of Section 386 of the GPMC Act is constitutionally valid as per Etnry-5 read with Entry-66 of list-II of the VIIth Schedule and deletion of Entry-55 of list-2 cannot be said to have any effect on the power to levy fees as provided by Section 386(2) of the GPMC Act - the provisions which are inconsistent with any of the provision of part-IX of the Constitution of India including Article 243X would be required to be amended but the provision contained in Section 386(2) of the GPMC Act cannot be said to be inconsistent with any of the provision of part-IX of Constitution of India and therefore, Article 243ZF would not come into play in the facts of the case.
The submissions of the petitioner that provision of Sub-section-2 of Section 386 suffers from excessive delegation and provided for unguided and uncanalised power to the Commissioner as there is no procedure for limits for imposition of fees in absence of any guideline is concerned, it is settled position of law that the guidelines are required to be prescribed by legislature in case where there is levy of tax and not in case where there is imposition of fees.
If the State Government is of the opinion that execution of any resolution or order of the Corporation for any of other Municipal Authority or officer subordinate thereto for doing of any act, which is about to be done or has been done for and on behalf of the Corporation is in contravention of excess of powers conferred by the GPMC Act or any other law for the time being in force or such action is likely to lead breach of the peace etc., then the State Government may by order in writing suspend the execution of order or prohibit doing of any such act. Therefore, even the sanction of the Corporation as provided under Sub-section-2 of Section 386 is subject to the control of the State Government as provided under Section 451 of the GPMC Act. In view of the above, it cannot be said that there is excessive delegation by legislature upon the Commissioner for determination of the levy of the fees under Sub-section-2 of Section 386 of the GPMC Act.
These writ applications fail and are accordingly rejected subject to the right of the petitioners to challenge the quantum of license fees before the State Government as per the provisions of the GPMC Act in accordance with law. The respondent State Government is therefore, directed to consider such challenge if made by the petitioners without being influenced in any manner by what has been stated hereinabove and decide such challenge as expeditiously as possible.
Application disposed off.
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2020 (10) TMI 1176 - KERALA HIGH COURT
Land acquisition - Whether the finding of the learned single Judge that the agreement executed by and between the writ petitioners and the District Collector could be treated as an award in terms of Act, 2013? - HELD THAT:- The determination was done in terms of the provisions of the Act, 2013 and it also takes in acquisition of land on the basis of agreement. Thus, the condition contained under the agreements granting liberty to the writ petitioners to make claims on account of the act 2013 cannot be said to be a totally strange or alien condition. To put it otherwise, the said condition makes absolute sense, since it really intended to protect the interest of the land owners which has a clear correlation with the objective of Act, 2013 for payment of adequate and fair compensation, apart from other provisions for rehabilitation and resettlement, for ensuring that the cumulative outcome of compulsory acquisition should be that, affected persons become partners in the developmental activities. Having acted upon the unilateral agreement executed by the writ petitioners in favour of the District Collector and paid the compensation in terms of that agreement and secured possession of the land accordingly, the District Collector cannot turn around and attack the agreement stating that the District Collector is not bound by unilateral agreement executed by the writ petitioners. Admittedly, it is an essential condition of the agreement that while re-determining the value of the land surrendered by the writ petitioners under the provisions of the Act, 2013 and the Rules framed thereunder, the petitioners are entitled to get further compensation or package offered by the Government over and above the compensation already fixed and further that they would be eligible to receive the same. If there was no intention to act upon that part of the agreement, the District Collector should not have accepted the agreement in toto.
Having not done so, the District Collector is not at liberty to resile from the said essential term of the agreements. Above all, the requisitioning authority is the Corporation of Kochi and at the end of the day further compensation if any to be paid, the financial sufferer is the said Corporation and accordingly, looking from that angle, the appellants cannot be strictly termed as aggrieved persons.
Yet another contention advanced by the learned Senior Government Pleader, Sri. Tek Chand, is that in terms of Annexure A3 judgment produced along with the writ appeal, the writ petitioners are not at liberty to make any claims in terms of the determination of compensation as per Act, 2013, since no income tax was deducted consequent to the purchase of the land by the Government in terms of the agreement offered by the writ petitioners. However, the said issue is guided by Section 96 of the Act, 2013 dealing with exemption from income tax, stamp duty and fees, which stipulates that no income tax or stamp duty shall be levied on any award or agreement made under this Act, except under Section 46 and no person claiming under any such award or agreement shall be liable to pay any fee for a copy of the same. Therefore, it is unequivocal that by virtue of the specific stipulation contained under section 96 of Act 2013, no income tax can be levied on any award or agreement. Which means, the appellants are not entitled to get any advantage on the basis of Annexure A3 judgment. Said so, we do not find any force in the said contention also.
The appellant have not made out any case, justifying interference in the judgment of the learned single Judge exercising the power under Section 5 of the Kerala High Court Act, there being no error in exercising the discretion conferred under Article 226 of the Constitution of India, or other legal infirmities - Appeal dismissed.
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2020 (10) TMI 1175 - KARNATAKA HIGH COURT
Dishonor of Cheque - insufficiency of funds - offence punishable under Section 138 of the Negotiable Instruments Act - Whether the impugned order of conviction and sentence passed by the trial Court and confirmed by the First Appellate Court against the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act suffer any illegality, impropriety or incorrectness?
HELD THAT:- There cannot be any dispute that once the issuance of the cheque and signature of the accused on the cheque are admitted, the presumption under Section 139 of the Negotiable Instruments Act that the cheque was issued towards discharge of legally recoverable debt arises. Then the burden shifts to the accused to rebut the said presumption by acceptable evidence.
The accused/DW.1 in his cross-examination has uneqivocally admitted that the notice - Ex.P3 was served on him. If Shivanna and the complainant colluded with each other to commit fraud on the accused and presented the cheque which contains huge amount, in the ordinary course at the first instance the accused should have replied Ex.P3 denying the contents or his liability. Thereby, there was a deemed admission of the contents of the notice. That circumstance went against the accused - Either by way of reply to the notice or in the cross-examination of PW.1, there was no denial of lending capacity of the complainant. Even in the evidence of the accused, there was no denial of the lending capacity. Therefore, the contention of the learned counsel for the petitioner regarding the lending capacity is apparently untenable.
Considering the material on record and the judgment of the Hon'ble Supreme Court in RANGAPPA VERSUS SRI MOHAN [2010 (5) TMI 391 - SUPREME COURT] regarding the presumption under Section 139 of the Negotiable Instruments Act, the Trial Court rightly rejected the defence of the accused and convicted him.
Revision dismissed.
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2020 (10) TMI 1105 - SUPREME COURT
Cancellation of Bail granted - filing of an additional complaint by the investigating agency - Whether the indefeasible right accruing to the appellant under Section 167(2), CrPC gets extinguished by subsequent filing of an additional complaint by the investigating agency? - Whether the Court should take into consideration the time of filing of the application for bail, based on default of the investigating agency or the time of disposal of the application for bail?
HELD THAT:- Admittedly the Appellant-accused had exercised his option to obtain bail by filing the application at 10:30 a.m. on the 181st day of his arrest, i.e., immediately after the court opened, on 01.02.2019. It is not in dispute that the Public Prosecutor had not filed any application seeking extension of time to investigate into the crime prior to 31.01.2019 or prior to 10:30 a.m. on 01.02.2019. The Public Prosecutor participated in the arguments on the bail application till 4:25 p.m. on the day it was filed. It was only thereafter that the additional complaint came to be lodged against the Appellant - the Appellant-accused was deemed to have availed of his indefeasible right to bail, the moment he filed an application for being released on bail and offered to abide by the terms and conditions of the bail order, i.e. at 10:30 a.m. on 01.02.2019. He was entitled to be released on bail notwithstanding the subsequent filing of an additional complaint.
It is clear that in the case on hand, the State/the investigating agency has, in order to defeat the indefeasible right of the accused to be released on bail, filed an additional complaint before the concerned court subsequent to the conclusion of the arguments of the Appellant on the bail application. If such a practice is allowed, the right under Section 167(2) would be rendered nugatory as the investigating officers could drag their heels till the time the accused exercises his right and conveniently files an additional complaint including the name of the accused as soon as the application for bail is taken up for disposal. Such complaint may be on flimsy grounds or motivated merely to keep the accused detained in custody, though we refrain from commenting on the merits of the additional complaint in the present case. Irrespective of the seriousness of the offence and the reliability of the evidence available, filing additional complaints merely to circumvent the application for default bail is, in our view, an improper strategy - the High Court was not justified in setting aside the judgment and order of the Trial Court releasing the accused on default bail.
The High Court has wrongly entered into merits of the matter while coming to the conclusion. The reasons assigned and the conclusions arrived at by the High Court are unacceptable.
Once the accused files an application for bail under the Proviso to Section 167(2) he is deemed to have ‘availed of’ or enforced his right to be released on default bail, accruing after expiry of the stipulated time limit for investigation. Thus, if the accused applies for bail under Section 167(2), CrPC read with Section 36A (4), NDPS Act upon expiry of 180 days or the extended period, as the case may be, the Court must release him on bail forthwith without any unnecessary delay after getting necessary information from the public prosecutor, as mentioned supra. Such prompt action will restrict the prosecution from frustrating the legislative mandate to release the accused on bail in case of default by the investigative agency - right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding pendency of the bail application; or subsequent filing of the chargesheet or a report seeking extension of time by the prosecution before the Court; or filing of the chargesheet during the interregnum when challenge to the rejection of the bail application is pending before a higher Court.
The impugned judgment of the High Court stands set aside - appeal allowed.
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