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Indian Laws - Case Laws
Showing 1 to 20 of 87 Records
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2020 (9) TMI 1307
Seeking grant of (first) bail - it is alleged that petitioner has laid a scathing attack citing political vengeance for false implication of the petitioner in this case - HELD THAT:- A perusal of the records is in itself illustrative how the deceased having been illegally apprehended within the jurisdiction of District Mohali, at no point of time over this long period was ever produced before the Judicial Magistrate and it was only before an Executive Magistrate in another District in Gurdaspur he is alleged to have been produced on 14.12.1991 before the SDM from where he is stated to have escaped from huge posse of police and paramilitary forces; rather rightly strengthens the belief of the complainant and a rationale person that it was with a preconceived plan the entire gamut was played to facilitate easy elimination of Balwant Singh Multani. Prior thereto the police admits being in custody of the deceased and therefore a heavy onus lay on it to remove this needle of suspicion which it has not been prima-facie able to succeed.
In the case of SUSHILA AGGARWAL AND OTHERS VERSUS STATE (NCT OF DELHI) AND ANOTHER [2020 (1) TMI 1193 - SUPREME COURT], the Supreme Court has held that an order of anticipatory bail does not in any manner limit or restrict the rights or the duties of the police/investigating agency to investigate into the charges against a person who seeks and is granted pre-arrest bail.
More so, a million dollar question arises whether under the garb of interim bail/anticipatory bail, the hands of the investigating agency can be tied so as to frustrate its endeavours to unearth the truth and reach into the circumstances unfolding into the manner of the crime. If it would have been the intention of the legislature then no crime in this world could have been detected and the culprits would have gone scotfree - In JAPANI SAHOO VERSUS CHANDRA SEKHAR MOHANTY [2007 (7) TMI 572 - SUPREME COURT], the Supreme Court of India has held that general rule of criminal justice is that a crime never dies.
Applying the same very ratio to the instant case, a look at the complaint and undisplaced facts before this Court, shows that since the day of his disappearance and prior thereto the family had been making every conceivable effort in initiating judicial process and which rather had remained in oblivion to the constitutional rights of the deceased’s family, are matters which certainly are of much relevance and substantiate the plea of State the unbridled powers of petitioner. Even in the innumerable cases that one experiences in life, shows that for one reason or the other, be it political or otherwise, many of the crimes remain buried for a period of time and it is with passage of time the same are unearthed and therefore, does not discourage the investigating agency from laying off its hands from such grave crimes against humanity.
Since it is at this juncture, the investigating agency has woken up and gathered courage to investigate its own officer and therefore, the vital pieces of evidence which would come handy in leading to various leads would inch towards unraveling this puzzle which too has baffled the citizenry who are looking upon the justice system as a last resort to get justice. Even otherwise, it is a well settled proposition of law that provisions of Section 438 Cr.P.C. are to be sparingly used. In the light of the seriousness of offences that have come about there being every likelihood of petitioner stifling fair investigations and trial and for which custodial interrogation of the petitioner is very much essential to piece together this unfortunate incident, necessitates dismissal of the instant bail application.
Bail application dismissed.
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2020 (9) TMI 1306
Seeking grant of bail - smuggling - Heroin - charge sheet was not filed within the statutory period of 60 days - petitioner having been prevented from filing an application seeking the default bail, for the reason, he was not represented by a lawyer - HELD THAT:- In the present case, the petitioner could not file an application seeking indefeasible right to bail under Section 167(2) CrPC on account of inaction on the part of the learned Special Court in ensuring that the petitioner was represented by a counsel during the period of remand as well and that he was informed of the said right.
Hon'ble Supreme Court has repeatedly emphasized the bounden duty of the Trial Courts to inform the accused of his right to seek default bail. In the decision reported as Rakesh Kumar Paul Vs. State of Assam [2017 (8) TMI 1526 - SUPREME COURT], expounding the duty of the Courts in providing free legal assistance to the accused as also informing him of his right to seek the statutory bail, held the petitioner had satisfied all the requirements of obtaining 'default bail' which is that on 11th January, 2017 he had put in more than 60 days in custody pending investigations into an alleged offence not punishable with imprisonment for a minimum period of 10 years, no charge sheet had been filed against him and he was prepared to furnish bail for his release, as such, he ought to have been released by the High Court on reasonable terms and conditions of bail - The facts of the present case are undoubtedly distinguishable from the facts in Rakesh Kumar Paul as between the period of 4th February, 2020 to 13th February, 2020, the petitioner having not been informed about his indefeasible right to default bail, he could not seek the same by filing an application and as held in a catena of decisions of the Hon'ble Supreme Court, unless the accused applies for the default bail during the said period, the accused will not be entitled to the same as a matter of right.
Though this Court is of the view that the decision of the Division Bench of the Punjab and Haryana High Court is an appropriate opinion in relation to cognizance of an offence under NDPS Act without the FSL report being an illegality, however, bound by the Division Bench decision of this Court, judicial discipline mandates this Court to follow the same. Consequently, in view of the decision of the Division Bench of this Court in Kishan Lal Vs. State [1989 (9) TMI 408 - DELHI HIGH COURT], it is held that the petitioner is not entitled to grant of bail under Section 167(2) CrPC for non-filing of the FSL report along with the charge sheet.
In the alternative petitioner also seeks bail on merits. The petitioner was apprehended by a team of Narcotics Squad on 6th December, 2019 pursuant to an information received that the petitioner along with the co-accused was supplying smack in the area of Sultanpuri and Wazirpur J.J. colony and would come for the supply at about 6.30-7 pm. On the pointing out of the informer, the petitioner and the co-accused were apprehended and a notice under Section 50 of the NDPS Act was served on the petitioner and the co-accused and they were informed about their right to be examined before a Gazetted Officer and Magistrate. Despite refusal of the petitioner and the co-accused, ACP (Operations) was present when the search was conducted and on the search of the petitioner, 50 gms of Heroin was recovered and another 50 gms of Heroin was recovered from the co-accused. Two samples of 5 gms each were drawn and kept in separate pullandas. The samples and the remaining contraband were sealed and after performing the necessary codal formalities, the same were deposited in the Malkhana.
Considering the nature of drug/Heroin allegedly recovered from the petitioner and no procedural infirmity having been pointed out, this Court finds no ground to grant bail to the petitioner on merits as well.
Petition is dismissed.
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2020 (9) TMI 1305
Seeking transfer of Criminal cases pending on the file of the Court of the Additional Judicial Magistrate, Gurugram, Haryana, to any competent Court in New Delhi - lack of territorial jurisdiction - cause of action - HELD THAT:- Chapter XIII of the Code of Criminal Procedure, 1973 contains provisions relating to jurisdiction of criminal Courts in inquiries and trials. The Code maintains a distinction between (i) inquiry; (ii) investigation; and (iii) trial. The words "inquiry" and "investigation" are defined respectively in Clauses (g) and (h) of Section 2 of the Code.
Apart from Sections 177 to 184, which lay down in elaborate detail, the Rules relating to jurisdiction, Chapter XIII of the Code also contains a few other sections. Section 185 empowers the State Government to order any case or class of cases committed for trial in any district, to be tried in any Sessions division. Section 186 empowers the High Court, in case where 2 or more courts have taken cognizance of the same offence and a question as to which of them should inquire into or try the offence has arisen, to decide the district where the inquiry or trial shall take place. Section 187 speaks of the powers of the Magistrate, in case where a person within his local jurisdiction, has committed an offence outside his jurisdiction, but the same cannot be inquired into or tried within such jurisdiction. Sections 188 and 189 deal with offences committed outside India.
Clause (a) of Section 26 makes the provisions contained therein, subject to the other provisions of the Code. Therefore, a question arose before this Court in the State of Uttar Pradesh v. Sabir Ali [1964 (3) TMI 137 - SUPREME COURT] as to whether a conviction and punishment handed over by a Magistrate of first class for an offence under the Uttar Pradesh Private Forest Act, 1948 were void, in the light of Section 15(2) of the Special Act. Section 15(2) of Uttar Pradesh Private Forest Act made the offences under the Act triable only by a Magistrate of second or third class. Though the entire trial in that case took place before a Magistrate of second class, he was conferred with the powers of a Magistrate of first class, before he pronounced the Judgment. This Court held that the proceedings were void Under Section 530(p) of the Code of Criminal Procedure, 1898 (as it stood at that time). It is relevant to note that Section 461(l) of the Code of 1973 is in pari materia with Section 530(p) of the Code of 1898.
What is now Clause (a) of Section 26 of the Code of 1973, is what was Section 28 of the Code of 1898. The only difference between the two is that Section 28 of the Code of 1898 referred to the eighth column of the second schedule, but Section 26(a) of the Code of 1973 refers to the first schedule - Similarly, Clause (b) of Section 26 of the Code of 1973 is nothing but what was Section 29 of the Code of 1898.
It is possible to take a view that the words "tries an offence" are more appropriate than the words "tries an offender" in Section 461(l). This is because, lack of jurisdiction to try an offence cannot be cured by Section 462 and hence Section 461, logically, could have included the trial of an offence by a Magistrate, not empowered by law to do so, as one of the several items which make the proceedings void. In contrast, the trial of an offender by a court which does not have territorial jurisdiction, can be saved because of Section 462, provided there is no other bar for the court to try the said offender (such as in Section 27). But Section 461(l) makes the proceedings of a Magistrate void, if he tried an offender, when not empowered by law to do.
The upshot of the discussion is (i) that the issue of jurisdiction of a court to try an "offence" or "offender" as well as the issue of territorial jurisdiction, depend upon facts established through evidence (ii) that if the issue is one of territorial jurisdiction, the same has to be decided with respect to the various Rules enunciated in Sections 177 to 184 of the Code and (iii) that these questions may have to be raised before the court trying the offence and such court is bound to consider the same.
As seen from the pleadings, the type of jurisdictional issue, raised in the cases on hand, is one of territorial jurisdiction, atleast as of now. The answer to this depends upon facts to be established by evidence. The facts to be established by evidence, may relate either to the place of commission of the offence or to other things dealt with by Sections 177 to 184 of the Code. In such circumstances, this Court cannot order transfer, on the ground of lack of territorial jurisdiction, even before evidence is marshaled. Hence the transfer petitions are liable to be dismissed.
Accordingly, transfer petitions are dismissed.
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2020 (9) TMI 1302
Maintainability of the execution petition - Execution of decree passed by the High Court of Justice, (Queen’s Bench Division) Commercial Court of England and Wales - HELD THAT:- The petitioner submits that the commercial court does not have the jurisdiction to entertain an Execution Petition under the Commercial Courts Act. Liberty is given to the petitioner to raise this contention before the Execution Court.
SLP disposed off.
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2020 (9) TMI 1301
Suspension Order - Demand of illegal gratification to fix the change over switch - HELD THAT:- The undisputed position, in this case, is that criminal proceedings were initiated against the Respondent on the basis of the trap laid by the Vigilance and Anti-Corruption Department. Such proceedings are admittedly pending before the Chief Judicial Magistrate, Thiruvannamalai in S.C. No. 53 of 2018. Therefore, this is clearly a case wherein a charge sheet was filed and the criminal process is underway. The law relating to suspension orders and their revocation should be examined against this background.
On perusal of the Full Bench judgment in S. RAVI AND ORS. VERSUS THE DISTRICT COLLECTOR AND ORS. [2015 (3) TMI 1428 - MADRAS HIGH COURT], it is clear that the Court did not direct the revocation of suspension if the suspension period exceeds a specific duration.
On perusal of the judgment in Ajay Kumar Choudhary [2015 (6) TMI 592 - SUPREME COURT], it is clear that the Hon'ble Supreme Court was dealing with a case wherein the Appellant had been served with a charge sheet before the judgment was pronounced. On that basis, on the facts of that case, paragraph 22 reflects that the order of suspension was not set aside although the suspension period exceeded three months. However, while disposing of the case, the Hon'ble Supreme Court held that the suspension period should not extend beyond three months if the memorandum of charges/charge sheet is not served on the delinquent officer/employee.
Upon considering the law laid down in the judgments that have been discussed herein above, it is clear that there is no absolute rule in respect of the validity of suspension orders from the perspective of duration especially when such suspension is in the context of a pending criminal proceeding. In other words, in these situations, the law on suspension as laid down in R.P. Kapur v. Union of India, [1963 (11) TMI 87 - SUPREME COURT], by a Five Judge Bench upholding suspension pending enquiry subject to payment of subsistence allowance as per service conditions and that in UNION OF INDIA & ANR. VERSUS ASHOK KUMAR AGGARWAL [2013 (11) TMI 1658 - SUPREME COURT], wherein it was held that the court does not sit in appeal and that such orders would be interfered with only if the charges are patently baseless, mala fide or vindictive would continue to hold the field.
Appeal allowed in part insofar as it directs the Appellants to revoke the suspension and to post the Respondent in a non-sensitive post.
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2020 (9) TMI 1299
Cancellation of bail granted - HELD THAT:- The bail granted to the respondent-accused by the learned ASJ, Patiala House Court, New Delhi vide order dated 30.04.2020 and affirmed vide order dated 06.05.2020 by the Delhi High Court cannot be cancelled - it is deemed appropriate to impose certain conditions on grant of bail.
SLP disposed off.
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2020 (9) TMI 1296
Smuggling - four hundred grams of Methamphetamine - ten grams of cocaine - appellant contends that the case of the prosecution is fabricated and is based solely on the testimonies of certain police officials - whether the time spent leading to the arrest of the appellant at 4.30 a.m. has been explained? - whether the responses received pursuant to the information sought under the Right to Information Act, 2005 raise any doubt as to the presence of the raiding party at the spot near the ISBT and the appellant's apprehension at the said spot? - HELD THAT:- In the present case, the police officials did not include any witnesses from the public or any other independent witnesses. However, the testimony of police witnesses cannot be ignored or doubted on this ground. In absence of evidence of any public or independent witness, it is essential that the testimony of the official witnesses should be subjected to greater scrutiny.
Thus in absence of testimonies of any independent witness, even minor inconsistencies in the evidence of the official witnesses may be considered as material. In the present case, this Court has carefully examined the evidence led by various official witnesses and there is no material inconsistency regarding apprehension of the appellant at the spot. Thus this Court has no doubt that the appellant was apprehended at about 07.55 pm on 19.11.2013, as claimed by the prosecution.
Whether the prosecution has established the chain of custody of the samples, beyond any reasonable doubt? - HELD THAT:- Even though the forwarding letter under the cover of which the two samples were forwarded to FSL, Rohini have not been produced; this Court is unable to accept that there is any doubt as to the chain of custody. The prosecution has led evidence of the police official who had sealed the two parcels (that is, SI Rajni Kant, who was examined as PW12). Further, the evidence of the police officials that had carried the parcels to PS Crime Branch and had deposited it into the Malkhana and thereafter, had withdrawn the same from the Malkhana and carried to the FSL, have been brought on record. The Chemical Examination Report (Ex. PX) also clearly records that the seals on the parcels when received were intact and it also confirms that the parcels were bearing the seals "5APSNB Delhi" and "VSS" - the contention that the accused is liable to be acquitted only on the ground that the chain of custody of the samples allegedly drawn has not been established, is unmerited.
This Court is of the view that the manner in which the samples were drawn is fatal to the prosecution's case regarding recovery of four hundred grams of methamphetamine from the appellant. The sample drawn after mixing the contents of both the polythene pouches cannot be stated to be representative of the contents of the two polythene pouches. The prosecution has been unable to establish that both the polythene packets, which were recovered from the metallic box, contained methamphetamine. This is because the contents of each of the polythene pouches were not tested prior to the same being kept together - However, once it is held that the quantity of the entire mixture including the neutral substances have to be considered for the purposes of determining whether the quantity of the illicit substance is a small quantity or a commercial quantity, then it is important that the substances found in separate packets are not mixed prior to ascertaining the nature of the substance in each packet. This is because if one of the packets does not contain any illicit substance, mixing the same with contents of another packet containing illicit substance, would increase the quantity of the offending substance (which includes neutral substance) that is required to be considered for determining the punishment liable to be imposed on the accused.
The appellant's conviction for committing an offence punishable under Section 22(c) of the NDPS Act, cannot be sustained - The appellant has also been convicted for committing an offence punishable under Section 21(b) of the Act on account of ten grams of cocaine recovered from the rear pocket of the lower apparel worn by the accused. The evidence led by the prosecution (testimony of PW12, PW10 and PW8) clearly established the recovery of cocaine from the appellant.
The impugned judgment to the extent that it convicts the appellant for committing an offence punishable under Section 22(c) of the Act on account of being found in possession of four hundred grams of methamphetamine, is unsustainable and is set aside - The appeal is partly allowed.
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2020 (9) TMI 1295
Removal of a set of counsel, who represented the DDCA before the Supreme Court - HELD THAT:- UPON hearing the counsel the Court adjourned the case.
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2020 (9) TMI 1294
Removal of a set of counsel, who represented the DDCA before the Supreme Court - HELD THAT:- The respondents have long concluded their arguments. Indeed, the appellant is in the process of concluding its rejoinder arguments. The learned Additional Solicitor General appearing for the appellant with the new set of counsel, submits that she be heard as the counsel who have thus far appeared for the appellant have no authority to appear. The Apex Council’s resolution is in the face of the Supreme Court’s aforesaid order and, ex facie, is an interference in these proceedings. The court would not pass any orders, apropos the same, at this stage.
The only focus now is to decide the FAO by 22.9.2020, as directed by the Supreme Court - Arguments heard. Order reserved.
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2020 (9) TMI 1293
Gross misconduct and indiscipline by virtue of ordering of a false GD Entry - extra-constitutional authority by issuing unlawful orders to Constable KK Sharma to give false statement to substantiate the aforementioned fake GD entry - corruption for illegally collecting bribes from contractors of BPCL through his subordinates - Effect of criminal enquiry on disciplinary proceedings.
HELD THAT:- It is well settled that the Constitutional Courts while exercising their powers of judicial review would not assume the role of an appellate authority. Their jurisdiction is circumscribed by limits of correcting errors of law, procedural errors leading to manifest injustice or violation of principles of natural justice. Put differently, judicial review is not analogous to venturing into the merits of a case like an appellate authority - The High Court was thus rightly concerned more about the competence of the enquiry officer and adherence to natural justice, rather than verifying the Appellant's guilt through documents and statements. It clearly noted that evidence was led, cross-examination was conducted and opportunities of addressing arguments, raising objections, and filing appeal were granted. The conclusion obtained was based upon these very evidences and was detailed and well-reasoned.
Even in general parlance, where an appellate or reviewing Court/authority comes to a different conclusion, ordinarily the decision under appeal ought not to be disturbed in so far as it remains plausible or is not found ailing with perversity. The present case is neither one where there is no evidence, nor is it one where we can arrive at a different conclusion than the disciplinary authority, especially for the reasons stated hereunder.
Effect of criminal enquiry on disciplinary proceedings - HELD THAT:- It is beyond debate that criminal proceedings are distinct from civil proceedings. It is both possible and common in disciplinary matters to establish charges against a delinquent official by preponderance of probabilities and consequently terminate his services. But the same set of evidence may not be sufficient to take away his liberty under our criminal law jurisprudence - The employer always retains the right to conduct an independent disciplinary proceeding, irrespective of the outcome of a criminal proceeding. Furthermore, the CBI report dated 07.03.2000 does recommend major disciplinary action against the Appellant. The said report also buttresses the Respondent's case.
Punishment and plea of leniency - HELD THAT:- The Appellant's contention that the punishment of dismissal was disproportionate to the allegation of corruption, is without merit. It is a settled legal proposition that the Disciplinary Authority has wide discretion in imposing punishment for a proved delinquency, subject of course to principles of proportionality and fair play. Such requirements emanate from Article 14 itself, which prohibits State authorities from treating varying-degrees of misdeeds with the same broad stroke. Determination of such proportionality is a function of not only the action or intention of the delinquent, but must also factor the financial effect and societal implication of such misconduct. But unlike in criminal cases, in matters of disciplinary proceedings Courts only interfere on grounds of proportionality when they find that the punishment awarded is inordinate to a high degree, or if the conscience of the Court itself is shocked. Thus, whereas imposition of major penalty (like dismissal, removal, or reduction in rank) would be discriminatory and impermissible for trivial misdeeds; but for grave offences there is a need to send a clear message of deterrence to the society. Charges such as corruption, misappropriation and gross indiscipline are prime examples of the latter category, and ought to be dealt with strictly.
It is clear that the punishment of dismissal from service is far from disproportionate to the charges of corruption, fabrication and intimidation which have unanimously been proven against the Appellant. Taking any other view would be an anathema to service jurisprudence. If we were to hold that systematic corruption and its blatant cover-up are inadequate to attract dismissal from service, then the purpose behind having such major penalties, which are explicitly provided for Under Article 311 of the Constitution, would be obliterated.
Appeal dismissed.
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2020 (9) TMI 1291
Willful defaulters - it is urged by the petitioners that the respondents have already made up a mind to treat the petitioners as willful defaulters - HELD THAT:- It is found that this is merely a tentative opinion expressed and it is not adjudication that the petitioners are declared as willful defaulters. The hearing is yet to be conducted, as informed by the learned counsel for the petitioners. The hearing would obviously be conducted on the show cause notice dated 13.11.2019. It is only after grant of hearing to the petitioners that the final adjudication shall be done by the Bank.
This order is passed on the basis of the contention of the learned counsel for the petitioners. However, if at all after granting of hearing to the petitioners, an order is already passed declaring the petitioners as willful defaulters, the observations made above, will not apply.
Petition dismissed.
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2020 (9) TMI 1285
Disqualification of Directors - defaulting directors - Use of DSC and DIN no by the disqualified director - Interpretation of statute - provisions of Section 164(2) and Section 167(1)(a) of the Companies Act, 2013 - default on the part of concerned companies in filing the annual returns and financial statements for the financial years 2014-2016.
Respondents submits that the petition is liable to be dismissed on the ground of delay and laches.
HELD THAT:- A Coordinate Bench of this Court, in its judgment in SANDEEP AGARWAL AND ANR. VERSUS UNION OF INDIA ANR. ORS. [2020 (9) TMI 175 - DELHI HIGH COURT] has already rejected such submission.
Petition disposed off.
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2020 (9) TMI 1283
Grant of ad-interim injunction restraining the respondent therein, (appellant before us), from disseminating the information declaring the applicants therein as wilful defaulters - HELD THAT:- Apparently, a recourse to the provisions of the Arbitration and Conciliation Act, 1996 is permissible. If a person is aggrieved with the information disseminated by credit institution like the present appellant in the public domain and there is a dispute with regard to the same, the person aggrieved by such information can either approach the concerned credit institution itself for correction of such information or can approach the Reserve Bank of India, for such grievance. Therefore, the remedial measures to be undertaken by the aggrieved parties have a necessary recourse to the provisions of the Arbitration and Conciliation Act, 1996. Section 9 of the said Act, as quoted above, provides for interim relief to the aggrieved party before or during the course of arbitral proceedings - In the present case, it seems that the dispute as of now, does not stand referred to any Arbitrator appointed by the Reserve Bank of India.
The parties do not seem to have raised these issues before the learned Single Judge in appropriate manner and there is no discussion in the order impugned before us dated 31.1.2019 passed by the learned Single Judge. Therefore, we are deprived of the benefit of reasoned opinion of the learned Single Judge on these two important issues raised in this appeal.
Appeal disposed off.
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2020 (9) TMI 1279
Seeking grant of interim bail - Right to speedy trial - conducting illegal mining of iron ore - Whether right to speedy trial which flows from Article 21 of the Constitution of India is a remote control in the hands of prosecution prosecuting an accused in a criminal case, so that it can take the trial speedily whenever it desires and slow it down to create frightening moments for the accused to carry an impression that he is fighting an endless battle?
Can an accused be left to become a puppet in the hands of the prosecuting agency?
Will the trial Court remain as a silent spectator when either from the side of the prosecution or accused, dillydallying or shilly-shallying attitude is adopted for some oblique purposes?
HELD THAT:- If the order sheet of the learned trial Court is perused from 05.09.2019 onwards till the end of December 2019, it cannot be said that the delay which was caused was unavoidable or on account of any administrative factors over which the prosecution has no control. During the said period, the trial court was functioning normally and no adjournment was sought for from the side of the petitioner and therefore, the delay which has been caused by the trial Court even after the receipt of the order this Court on 22.08.2019 passed in BLAPL No.1053 of 2019, in my humble view, is unreasonable and unexplained. Of course after the last two witnesses i.e. P.W.24 and 25 were examined on 4.01.2020, the Presiding Officer was transferred on 10.01.2020 and the new Presiding Officer joined on 23.03.2020 and then the lock-down was imposed in the State since 23.03.2020 which was extended from time to time and during the said period, there was restricted functioning of the Subordinate Courts in the State as per the direction of this Court and no summons were issued to witnesses during the said period and now the letter dated 10.09.2020 of the learned trial Court makes it clear that the normal functioning of the Court has not been restored.
The trial Court shall take all possible steps to stop the dillydallying or shilly-shallying attitude adopted either from the side of the prosecution or accused and ensure that the constitutional right of speedy trial of the accused as guaranteed under Article 21 of the Constitution of India is not flouted causing mockery of the trial. It seems unnecessary lengthy cross examination has been made by different set of defence counsel to the witnesses to make it a gallery show, which needs to be regulated by the learned trial Court keeping in view the provisions under sections 146, 148, 150, 151, 152 and 165 of the Indian Evidence Act, 1872.
In absence of any substantial change of circumstances after the rejection of the last bail application on merit and particularly since there is strong prima facie case against the petitioner relating to his involvement in the commission of grave economic offence, I am not inclined to reconsider his prayer for bail on merit and release him on bail pending disposal of trial - the petitioner is entitled for grant of interim bail with the terms and conditions imposed.
Bail application disposed off.
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2020 (9) TMI 1276
Maintainability of petition - the impugned order passed by the Arbitral Tribunal on 08.01.2017 was challenged only 2½ years late and the petitioner filed the writ petition at the last minute after the arguments had concluded before the Arbitral Tribunal - writ petition has been dismissed, filed under Article 227 directly against a section 16 application without following the drill of section 16 of the Arbitration Act - patent lack of inherent jurisdiction to interfere with deposit orders - HELD THAT:- A foray to the writ Court from a section 16 application being dismissed by the Arbitrator SLP (C) No. 8482/2020 can only be if the order passed is so perverse that the only possible conclusion is that there is a patent lack in inherent jurisdiction. A patent lack of inherent jurisdiction requires no argument whatsoever - it must be the perversity of the order that must stare one in the face.
Unfortunately, parties are using this expression which is in our judgment in Deep Industries Ltd. [2019 (11) TMI 1632 - SUPREME COURT], to go to the 227 Court in matters which do not suffer from a patent lack of inherent jurisdiction. This is one of them. Instead of dismissing the writ petition on the ground stated, the High Court would have done well to have referred to our judgment in Deep Industries Ltd. and dismiss the 227 petition on the ground that there is no such perversity in the order which leads to a patent lack of inherent jurisdiction. The High Court ought to have discouraged similar litigation by imposing heavy costs. The High Court did not choose to do either of these two things.
In any case, now that Shri Vishwanathan has argued this matter and it is clear that this is not a case which falls under the extremely exceptional category, we dismiss this special leave petition with costs of Rs.50, 000/- to be paid to the Supreme Court Legal Services Committee within two weeks - Application disposed off.
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2020 (9) TMI 1274
Dishonor of Cheque - petitioner was director of the company during the relevant time or not - vicarious liability of the director - Section 141 of NI Act - HELD THAT:- The petitioner was a Director of the 1st accused company till 07.04.2015. The business transaction between the 1st accused company and the respondent/complainant was during the year 2012-2013. The cheque had been issued for the liability for the said business. During the relevant point of time, the petitioner was a Director. The other two Directors are none other than his parents. The petitioner had resigned three months prior to the date of the cheque. Further, the petitioner's resignation being registered with the ROC has not been conclusively proved. In view of the same, the petitioner's contention that he was not the Director of the company during the relevant period cannot be accepted.
From the complaint, it is seen that the cheque has been issued by the 1st accused company and the cheque has been signed by A2 as a Director and Authorised Signatory. Admittedly, the petitioner had not signed the cheque and from the complaint, it is seen that except for a bald averment, there is no specific averment to show that at the time of the offence committed, the petitioner was in charge and responsible for the conduct of the business of the company. This averment is an essential requirement to attract Section 141 of the Negotiable Instruments Act. Without this averment made in the complaint the requirement of Section 141 cannot be said to be satisfied.
From the complaint, it is seen that there is no such averment to rope in the petitioner. The Director would not automatically become vigorously liable. Merely being the Director of the company could not make such person liabile under Section 141 of the Negotiable Instruments Act - Petition allowed.
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2020 (9) TMI 1269
Seeking grant of Regular Bail - criminal conspiracy - fraudulent withdrawal of money from the Bank Accounts of different persons - operation of inoperative accounts of the customers by issuing Cheque Books in the name of those customers of the Bank and used to withdraw the amount from their accounts fraudulently - HELD THAT:- Admittedly the Challan has been submitted against him more than four months ago and there is no requirement for his further detention especially in view of the fact that he was taken into custody in the present case before he could be released on bail granted to him by the Himachal Pradesh High Court. Ld. State Counsel has nevertheless also contended that considering the nature of offences involved there is every likelihood that the Petitioner will abscond and flee from justice on account of which he should not be released on bail. This submission, however, does not appear to be substantiated considering the previous background of the Petitioner's arrest and implication in FIR No.161 dated 21.9.2018.
Inspite of having been granted bail on 24.5.2019 in FIR No.161 of 2018 of the same Police Station, the Pettioner had never misused his liberty and was diligent in attending the Court till 18.12.2019, after which he was arrested, and there is no material to indicate that he had tried to flee away.
This Court finds the Petitioner to be entitled to regular bail in the present case considering his long detention exceeding 6½ months, and the fact that Challan against him has been filed long ago. He is, therefore, ordered to be released on bail subject to imposition of appropriate terms and conditions to ensure his attendance, which are left to the discretion of the Ld. Trial Court/Duty Magistrate concerned - Petition allowed.
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2020 (9) TMI 1263
Validity of Look Out Circular issued by the Ministry of Home Affairs, Bureau of Immigration - nature of the proceedings - whether in the nature of criminal proceedings and the jurisdiction exercised by the learned Single Judge is a criminal jurisdiction or not - HELD THAT:- It is evident from the facts of this case that there are criminal cases pending against the appellant, including one registered by the Central Bureau of Investigation, and the appellant C.Sivasankaran is named as accused at Serial No.13 in FIR No.9 of 2018, dated 13.4.2018 of Bengaluru - It is in this background that the Look Out Circular appears to have been issued, and as per the amendment referred to by the learned Single Judge, such a circular can be issued in larger public interest. The genesis of the Look Out Circular, therefore, is the pendency of criminal cases against the appellant and it is in this context that the Look Out Circular came to be challenged by the appellant. The writ petition, therefore, was clearly intended to seek an order to enable the appellant to move out of the country by getting the bar of Look Out Circular lifted, the obvious consequence and likelihood whereof is avoiding of criminal proceedings that have been initiated under the Code of Criminal Procedure.
Reliance can be placed in the case of Ram Kishan Fauji v. State of Haryana and others [2017 (3) TMI 1780 - SUPREME COURT] where it was held that The irresistible conclusion is that the Letters Patent Appeal was not maintainable before the Division Bench and, consequently, the order passed therein is wholly unsustainable and, accordingly, it is set aside.
The Look Out Circular that came to be the subject matter of challenge before the learned Singe Judge did arise out of the various criminal proceedings that were pending against the appellant. The prayer, therefore, in the writ petition was clearly for a declaration that the Look Out Circular in the purported exercise of powers under Section 10B of the Passport Act, 1967 is arbitrary and an abuse of authority, vitiated by mala fides, and hence, should be declared to be without jurisdiction - The sequence of facts, and the consequence towards which the writ petition is aimed at, clearly relate to criminal proceedings that have led to the issuance of the circular. This may involve the guarantee of liberty to a person under Article 21 of the Constitution, but the genesis of the action is connected with the criminal prosecutions pending against the appellant, the umbilical cord whereof has not yet snapped. The contention that it only involves civil rights of the appellant is, therefore, not correct because the relief revolves around consequences arising or likely to arise as a result of criminal prosecution.
The issuance of a Look Out Circular is an exercise of authority under the Office Memorandum dated 27.10.2010 and such a circular can be issued in larger public interest, as already held by the learned Single Judge after taking into account the amendment in the said memorandum. The appellant's claim of immunity under the foreign passport, therefore, may not arise - The letter and intent, as well as the crux of the background in which the writ petition was filed clearly relates to the criminal proceedings pending against the appellant and, therefore, the nature of the jurisdiction exercised by the learned Single Judge would be a writ in the criminal jurisdiction, hence a Letters Patent Appeal under Clause 15 of the Letters Patent of Madras High Court would not be maintainable.
Appeal dismissed.
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2020 (9) TMI 1260
Suit for recovery of money with interest - Allegation is that the suit pronote has been fabricated to wreck vengeance - main defence taken by the defendant is that the pro-note was not executed by him - HELD THAT:- The subject matter of the suit is Ex.A- 1 pro-note. The lender and the witness to the Pro-note had deposed their presence during the execution of the pro-note by Ex.A-1. No contra evidence to dislodge the case of the plaintiff adduced by the defendant - Relatives witnessing the pro-note transaction, is not a circumstances to draw suspicion. In addition to the witness to the execution, the scribe PW-3 also examined by the plaintiff and he has deposed that he saw the defendant affixing his signature and thumb impression. The defendant who denies the signature and thumb impression, not taken any steps to refer the disputed signature and thumb impression for comparison by experts. The Courts below pointing out this, had compared the disputed signature with the admitted signature found in the vakalat and summon and found to be from same person.
Ex.A-1 being a negotiable instrument, the special rules of evidence under chapter XIII of the Negotiable Instruments Act is applicable. Under section 118 of the Negotiable Instruments Act, until the contrary is proved, the presumption of consideration and date are in favour of the plaintiff. The plaintiff burden is only to prove it execution - In this case, the plaintiff had satisfactorily proved the execution through PW-2 and PW-3. Thus the burden has shifted to the defendant to prove the contrary. He has not taken any steps to positively prove the contrary. In the said circumstances, the Courts below after recording the reason for invoking section 73 of the Evidence Act had proceeded to arrive at a conclusion.
The defendant though had pleaded that the pro-note was not executed by him, he has not placed any acceptable proof to disbelieve the ocular evidence of PW-2 and PW-3. The best way to disprove is by calling the expert. This option was not exercised by the defendant - this Court is of the view that this is a fit case to exercise section 73 of the Evidence Act.
This Court finds that the final Court of facts had held the plaintiff has proved the execution of the pro-note by the defendant and the said debt still un discharged - there are no substantial question of law for interfering the concurrent finding of the Courts below - appeal dismissed.
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2020 (9) TMI 1242
Reservation of Seats for admission in Educational Institutions for Socially and Educationally Backward Classes - High Court reduced the quantum of reservations provided therein from 16 per cent to 12 per cent in respect of the educational institutions and from 16 per cent to 13 per cent in respect of public employment - main contention of the Appellants before the High Court was that the Act is contrary to the law laid down by this Court in Indra Sawhney [1992 (11) TMI 277 - SUPREME COURT] as the reservations provided by the Act are in excess of 50 per cent - HELD THAT:- After observing that Article 16(4) should be balanced against the guarantee of equality enshrined in Article 16(1), which is a guarantee held out to every citizen, it was categorically held that reservations contemplated in Clause (4) of Article 16 should not exceed 50 per cent. The relaxation of the strict Rule of 50 per cent can be made in certain extraordinary situations. People living in far flung and remote areas not being in the mainstream of national life should be treated in a different way. In view of the conditions peculiar to them they are entitled to be given relaxation. It was made clear that extreme caution has to be exercised and a special case made out for relaxation of the Rule of 50 per cent.
Applying the law laid down by this Court in Indra Sawhney, it is opined that the State of Maharashtra has not shown any extraordinary situation for providing reservations to Marathas in excess of 50 per cent. Maratha community which comprises of 30 per cent of the population in the State of Maharashtra cannot be compared to marginalized Sections of the society living in far flung and remote areas. The State has failed to make out a special case for providing reservation in excess of 50 per cent. Neither has any caution been exercised by the State in doing so.
The factors termed as extraordinary and exceptional, justifying reservations in excess of 50 per cent are those required for the purpose of providing reservations. The social, educational and economic backwardness of a community, existence of quantifiable data relating to inadequacy of representation of the community in public services and deprivation of the benefits flowing from reservations to the community are not exceptional circumstances for providing reservations in excess of 50 per cent - Admittedly, reservations provided to the Maratha community were implemented in educational institutions for one academic year only. Implementation of the Act for admissions in educational institutions and appointments to public posts during the pendency of these Appeals will cause irreparable loss to the candidates belonging to the open category.
As the interpretation of the provisions inserted by the Constitution (102nd Amendment) Act, 2018 is a substantial question of law as to the interpretation of the Constitution of India, these Appeals are referred to a larger Bench. These matters shall be placed before Hon'ble The Chief Justice of India for suitable orders - Appointments to public services and posts under the Government shall be made without implementing the reservation as provided in the Act.
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