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Indian Laws - Case Laws
Showing 201 to 220 of 748 Records
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2023 (9) TMI 1567
Smuggling - carrying 100 bottles of Phensedyl Cough Syrup (100 ml. each), containing Codeine Phosphate - HELD THAT:- Considering the nature of the Contraband involved, it is deemed appropriate to grant bail to the petitioners – Badsha SK and Rafikul Islam @ Kalu, subject to appropriate bail conditions to be imposed by the trial court.
The Special Leave Petitions stand disposed of.
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2023 (9) TMI 1564
Dishonour of Cheque - abatement of proceedings under Section 138 of NI Act - whether proceedings under Section 138 of the Act also abate on account of initiation of proceedings, if any, under Section 94 (1) of Insolvency and Bankruptcy Code, or same can proceed simultaneously alongwith afore proceedings initiated under Insolvency and Bankruptcy Code?
HELD THAT:- The question has already been answered by the Hon’ble Apex Court in case titled Ajay Kumar Radheyshyam Goenka Vs. Tourism Finance Corporation of India Ltd. [2023 (3) TMI 686 - SUPREME COURT], wherein Hon’ble Apex Court taking note of its earlier judgment passed in P. Mohanraj & Ors. [2021 (3) TMI 94 - SUPREME COURT] has categorically held that where the proceedings under Section 138 of the Act had already commenced with the Magistrate taking cognizance upon the complaint and during pendency of the company gets dissolved, signatories, directors cannot escape from their penal liability under Section 138 of the Act by citing its resolution. Hon’ble Apex Court further held in the afore judgment that an offence under Section 138 of the Act, which has been committed by the company and is proved that offence has been committed with consent and connivance of, any neglect on the part of any director, manager, secretary or other officers of the company, such director, manager, secretary or other officers shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
It is quite apparent from the aforesaid exposition of law laid down by Hon’ble Apex Court that the signatory/director cannot take benefit of discharge obtained by corporate debtor by operation of law under the IBC, meaning thereby that personal liability of signatory/ director of the company in a cheque dishonour case cannot be absolved because there is pending corporate liability resolution proceedings against the company under the provisions of IBC. Directors/ signatories cannot escape from their penal liability by citing its dissolution, only the accused company is dissolved and director/signatory cannot be permitted to go scot-free after the approval of resolution plan.
Since complainant bank is a secured creditor and loan is strictly secured by way of equitable mortgage of the property in question, coupled with the fact that such property has no other charge of having nature, complainant bank has otherwise paramount charge of the property against the house loan given to the accused and Smt. Shaveta Sharma for Rs. 2,00,00,00/-.
This Court finds no illegality or infirmity in the impugned order, which appears to be based upon proper appreciation of facts and law and as such, same is upheld - Petition dismissed.
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2023 (9) TMI 1562
Recovery of the amount due from the borrower - Recovery of Debts and Bankruptcy Act, 1993 - HELD THAT:- The respondents' limited contention before this Court was regarding an error committed by the learned DRAT in not noticing that the amount, as directed to be paid, already stood discharged. In this context, this Court had observed that if there was a factual error, the respondents ought to have approached the learned DRAT. The respondents had reserved the right to do so as is apparent from paragraph no.3 & 4 of this Court's order dated 17.09.2020.
In terms of the order dated 04.08.2020, a recovery certificate was issued by the learned DRT, which was sought to be enforced by the recovery officer.
There is some controversy before the recovery officer as to who could represent the TFCI in that case. Apparently, Edelweiss's counsel had sought to represent the TFCI in those proceedings as the recovery certificate was issued in favour of the TFCI. The respondents have sought to raise another controversy in regard to whether the recovery certificate issued in favour of the TFCI could be enforced in favor of Edelweiss.
Although the scope of controversy now before the learned DRAT is limited to the review petition confined to the amount of the recovery certificate. It appears that the respondent has sought to expand the scope of controversy before the learned DRAT and has filed an application under section 340 of the Code of Criminal Procedure, 1973 (hereafter 'CrPC') being Miscellaneous Application No.33/2021. According to the petitioner, the said application is not maintainable as Appeal No. 280/2019 has already been disposed of.
It is not apposite to set aside the proceedings relating to the application filed by the respondents under Section 340 of the Cr.PC as it would be for the learned DRAT to first examine whether it has any jurisdiction to proceed with the said application - the present petition is disposed of with the direction that the learned DRAT will, in the first instance consider the petitioner's challenge to the maintainability of the application (Miscellaneous Application No. 33/2021) as a preliminary question, before proceeding further.
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2023 (9) TMI 1544
Imposition of stamp deficiency together with penalty - industrial land or commercial land - the proceedings under Section 33 read with Section 47 A has been initiated on the ground that property in question is having commercial value, therefore, deficiency of stamp duty has been imposed - HELD THAT:- It is not in dispute that the petitioner had purchased vacant plot and paid the stamp duty thereof. The plot in question was not only vacant but also has been declared as industrial land and no commercial activity was being undertaken adjacent to the property in question - The record further reveals that while passing the impugned order, a finding has been recorded that at the time of execution of sale deed, plot in question was vacant and no construction was standing thereon and the land was declared as industrial use, still the deficiency of stamp has been levied on the ground that the land in question can be used for commercial purpose.
The deficiency of stamp can neither be determined on the value of future use of the property nor it can be levied on the ground that property can fetch good market value nor in the absence of any declaration made by the State Government changing the nature of the land from industrial to commercial. The judgement referred by the counsel for the petitioner clearly indicates for determination the stamp duty only on the date of execution of deed.
This Court in the case of Sunny Motors [2008 (8) TMI 1030 - ALLAHABAD HIGH COURT] has held that proceedings can be initiated on the basis of report but decision cannot be relied upon on the basis of said report until and unless the Collector has made the inspection himself or through some authorized person. Further the Court has observed that until and unless area in question has been declared as commercial by the State Government, the land use cannot be changed from industrial to commercial and no stamp deficiency can be levied.
The case in hand, the property in question was purchased as vacant industrial plot and no material has been brought on record to treat the same as commercial plot. The authorities below have failed to bring on record that nature of the land in question has been changed by passing appropriate order under the relevant Act converting its use from industrial to commercial. In view of above facts as well as law laid down as aforesaid, the impugned orders cannot be sustained in the eyes of law.
The impugned orders are set aside. Any amount deposited by the petitioner during pendency of the present litigation shall be refunded to the petitioner within 15 days from the date of production of a certified copy of this order before the concerned authority - petition allowed.
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2023 (9) TMI 1526
Contempt of Court - wilful breach of an assurance in the form of an undertaking given by a counsel/ advocate on behalf of his client to the court would amount to “civil contempt” as defined under Section 2(b) of the Act 1971 or not - undertaking could be said to have been given to the court or not - contempt court has the power to declare any contemptuous transaction non est or void or not - beneficiaries of a contemptuous transaction have a right to be heard in the contempt proceedings on the ground that they are necessary or proper parties or not - apology tendered by the contemnors deserves to be accepted or is it a legal trick to wriggle out of responsibility - Whether the High Court committed any error in passing the impugned judgment and order?
What is wilful disobedience? - HELD THAT:- In ASHOK PAPER KAMGAR UNION AND ORS. VERSUS DHARAM GODHA AND ORS. [2003 (9) TMI 802 - SUPREME COURT], the expression ‘wilful disobedience’ in the context of Section 2(b) of the Act was read to mean an act or omission done voluntarily and intentionally with the specific intent to do something, which the law forbids or with the specific intention to fail to do something which the law requires to be done. Wilfulness signifies deliberate action done with evil intent and bad motive and purpose. It should not be an act, which requires and is dependent upon, either wholly or partly, any act or omission by a third party for compliance.
Hence, the expression or word “wilful” means act or omission which is done voluntarily or intentionally and with the specific intent to do something which the law forbids or with the specific intent to fail to do something the law requires to be done, that is to say with bad purpose either to disobey or to disregard the law. It signifies a deliberate action done with evil intent or with a bad motive or purpose.
Whether the statement made by the learned counsel before the High Court was an undertaking on behalf of his clients and if yes then whether such undertaking could be said to have been given to the court, we must look into two decisions on this point? - HELD THAT:- The Bombay High Court in Bajranglal Gangadhar Khemka and another v. Kapurchand Ltd. [1950 (2) TMI 13 - BOMBAY HIGH COURT], took notice of a practice wherein the undertaking would not expressly mention that it was given to the court but the High Court took cognizance of the fact that the expression “undertake” had come to acquire through long practice, a technical meaning.
The expression a party “undertakes” or “gives a solemn promise” or “it is stated at the Bar on instructions from clients that the property shall not be sold” used in the statements of the parties or their counsel or in the orders and decrees of the court, unless the context otherwise suggests, means an implied undertaking to the court. The undertaking is always understood to be an undertaking to the court, which undertaking could be enforced by committal proceedings.
The High Court is right in saying that it is this undertaking given to the court on 14.10.2015 that persuaded the respondents herein to withdraw the said appeal and it is such solemn assurance given to the court which per forced them to withdraw the appeal by recording the statement made by the learned Senior Counsel appearing on behalf of the contemnors - the wilful breach of an assurance in the form of an undertaking given by a counsel /advocate on behalf of his client to the court would amount to “civil contempt” as defined under Section 2(b) of the Act 1971.
Having regard to all the facts on record that the undertaking in the case on hand could be said to have been given to the court.
Are contemptious transactiosn void? - HELD THAT:- A Three-Judge Bench of this Court in the case of State Bank of India and Others v. Dr. Vijay Mallya [2022 (7) TMI 516 - SUPREME COURT], in clear terms said that apart from punishing the contemnor for his contumacious conduct, the majesty of law may demand that appropriate directions be issued by the Court so that any advantage secured as a result of such contumacious conduct is completely nullified. The approach may require the Court to issue directions either for reversal of the transactions in question by declaring said transactions to be void or passing appropriate directions to the concerned authorities to see that the contumacious conduct on the part of the contemnor does not continue to enure to the advantage of the contemnor or anyone claiming under him.
Although Section 52 of the Act 1882 does not render a transfer pendente lite void yet the court while exercising contempt jurisdiction may be justified to pass directions either for reversal of the transactions in question by declaring the said transactions to be void or proceed to pass appropriate directions to the concerned authorities to ensure that the contumacious conduct on the part of the contemnor does not continue to enure to the advantage of the contemnor or anyone claiming under him - The High Court declared all the sale deeds executed by the contemnors in favour of the purchasers as non est. The High Court ordered that the sale deeds stand cancelled and set aside. The contemnors were directed to restore the position which was prevailing at the time of the order dated 14.10.2015 passed by the High Court - the High Court was fully justified in declaring the sale deeds as non est or void.
Impleadment of purchasers as necessary parties - whether the clients of Mr. Shyam Divan i.e., purchasers should have been impleaded as party respondents in the contempt proceedings before the High Court and whether they should have been heard before passing the final order? - HELD THAT:- In the case of Satyabrata Biswas [1994 (1) TMI 320 - SUPREME COURT], it was held that no person can gain an advantage in derogation of rights of the parties. In the said matter an order was passed, directing the parties to maintain status quo with respect to the disputed property. The appellant therein however, acted in contempt and created a sub-tenancy in favour of one Somani Builders, who was not made a party to the contempt proceedings before the High Court. Somani Builders contended that they should have been made a party to the proceedings as they possessed a right in the disputed property.
In Surjit Singh and others etc. etc. v. Harbans Singh [1995 (9) TMI 382 - SUPREME COURT], this Court considered the question whether a person to whom the suit property is alienated after passing of the preliminary decree by the trial court, which had restrained the parties from alienating or otherwise transferring the suit property, has the right to be impleaded as a party. The trial court accepted the application filed by the transferees and the order of the trial court was confirmed by the lower appellate court and the High Court.
Thus, it is evident that it was not necessary for the High Court to implead the purchasers in the contempt proceedings. In fact, we may go to the extent of observing having regard to the facts of the case that the purchasers were quietly watching the proceedings. It is not as if they were not aware of what was happening however, when things went wrong, they now cry foul of not being impleaded as parties and heard by the High Court.
Contempt of apology - HELD THAT:- In the case of Sub-Judge, First Class, Hoshangabad v. Jawahar Lal Ramchand Parwar [1938 (9) TMI 16 - BOMBAY HIGH COURT], Justice Bose (as he then was) said that an apology is not a weapon of defence forged to purge the guilty of their offences. It is not an additional insult to be hurled at the heads of those who have been wronged. It is intended to be evidence of real contriteness, the manly consciousness of a wrong done, of an injury inflicted, and the earnest desire to make such reparation as lies in the wrong-doer's power. An apology, which the learned Judge says should be evidence of real contriteness and manly consciousness of the wrong done; it ceases to be so if it is belated, and it becomes instead, to borrow the language of Justice Bose, again the cringing of a coward shivering at the prospect of the stern hand of justice about to descend upon his head.
In the case of Sevakram [1999 (8) TMI 1024 - GUJARAT HIGH COURT], it was held that an apology neither purges nor washes away the act of contempt and at best it is a mitigating circumstance while considering the consequential order following finding of contempt having been committed.
The law is very clear that the court should not get compassionate and dilute an indictment and not follow it with conviction. The fact that the appellants have committed contempt is not in doubt. The law enjoins that a punishment must follow.
All the three appeals fail and are hereby dismissed.
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2023 (9) TMI 1503
Rejection of representation and the promotion order of the incumbent juniors - Validity of Rule 4(b) of Ministry of Information Technology Rules, 1998 - whether the High Court was justified in exercising jurisdiction to declare Rule 4(b) as ultra vires? - HELD THAT:- It is a trite law that for striking down the provisions of law or for declaring any Rules as ultra vires, specific pleading to challenge the Rules and asking of such relief ought to be made, that is conspicuously missing in the present case. In the absence of such a pleading, the Union of India did not have an opportunity to rebut the same. The other side had no opportunity to bring on record the object, if any, behind the Rules that were brought into force. In the writ petition seeking a writ of certiorari challenging the order of the CAT, the High Court ought not to have declared Rule 4(b) as ultra vires in the above fact situation. Therefore, the High Court was not justified to declare Rule 4(b) as ultra vires.
The order dated 26.09.2008 of the High Court declaring Rule 4(b) of the Rules is set aside. Since the declaration of the High Court holding Rule 4(b) is set aside to be invalid consequently, the grievance of the Respondent No. 1 about any illegality in denial of promotion to her also does not arise. No case has been made out as to how in the event of Rule 4(b) being valid, how the denial of promotion to her was unjustified for in the years 1999, 2000 and for the years before 2007.
Appeal allowed.
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2023 (9) TMI 1494
Implementation of direction of this Court dated 20.05.2022 - suggestion for release of amount in favour of the identified small depositors in three deferential categories - HELD THAT:- This Court finds there is no difficulty in the release of minimum sum of Rs. 8,000/- in favour of the identified depositors/investors.
Finding clear statement of Mr. Kanungo, learned senior counsel for the Petitioners that there has been already payment of Rs. 10,000/- in favour of the 15000 and odd depositors, the Competent Authority while commencing the release process shall indentify such investors and to see that there is no payment over and above the deposit by any investor or depositor - Let there be complete disbursal of the amount at least within a period of two months from the date of communication of this order by the Petitioner.
Application disposed off.
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2023 (9) TMI 1492
Petition filed under Section 482 CrPC seeking to sett aside of the impugned order - seeking direction to the SHO to register an FIR based on the complaint filed by the petitioners herein and initiate an investigation in the matter - HELD THAT:- This Court finds that there is no averment, categoric or otherwise in the present petition, to show that the present case is one such extra ordinary case which calls for interference by this Court under Section 482 of the CrPC. In fact, there is no denial of the said fact by the learned counsel appearing for the petitioners as according to him the present petition is also maintainable. This Court is unable to agree with the said contention.
It is trite law that a Court while interpreting a provision of the Statute is bound to abide by what is expressed and contained therein without interfering or altering or carving out either a new meaning or something which is not manifest thereform. As per the facts of the present case, admittedly, when an appropriate and specific remedy of law under the (same) Statute being the CrPC is already available to the petitioners, this Court in view of the aforesaid conclusion and even otherwise as per the legal position finds no reason to interfere with the impugned order passed by the learned Trial Court.
This Court is unable to understand the reasons for interfering into the merits of the matter when it has already once opined in the presence of the learned counsel for the petitioners that the present petition is prima facie not maintainable before this Court under the provisions of Section 482 of the CrPC.
Petition dismissed.
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2023 (9) TMI 1489
Applicability of Section 149 of Indian Penal Code - acquittal Under Section 378 of Code of Criminal Procedure - order of acquittal overturned by High Court - HELD THAT:- There is no discussion about the testimony of eyewitnesses for deciding whether their testimony could be believed. In fact, there are no findings recorded by the High Court after re- appreciating the evidence. There is not even a finding to indicate that the High Court considered the question whether the view taken by the Trial Court was a possible view. Without recording any reasons and without recording any finding regarding the role played by the Appellants individually and collectively, the High Court has jumped to the conclusion that the guilt of the Accused has been established. The judgment does not throw any light on the question who were the authors of the injuries sustained by the deceased and the injured witnesses. There is no finding as to how Section 149 of Indian Penal Code gets attracted.
The only conclusion which can be drawn is that the High Court, as an Appellate Court, while hearing the appeal against acquittal, has not done its duty.
The Trial Court found that the failure to investigate the cause of injury suffered by the Accused No. 1 is a serious lacuna in a prosecution case. On facts, it is further noted by the Trial Court that on the basis of prior complaint filed by the Accused No. 1 - Appellant No. 1 alleging commission of assault by PW-1, PW-2, PW-7, and PW-12, all of them got anticipatory bail from the competent court.
The impugned judgment dated 21st September 2010 is set aside - appeal allowed.
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2023 (9) TMI 1483
Lack of appropriate sanction of ‘failure of justice’ - validity of sanction under Section 227 CrPC.
It was held by High Court that ‘permitting the respondent to launch criminal prosecution afresh would be an abuse of process of law, since the petitioner will be deprived of speedy trial guaranteed under Article 21 of the Constitution of India for no fault of him.’
HELD THAT:- Issue notice.
List after eight weeks.
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2023 (9) TMI 1475
Violation of principles of natural justice - absence of affording adequate opportunity of hearing to the parties on addressing the framed substantial questions of law u/s section 100 Code of Civil Procedure - absence of any trial record or without summoning and perusing the trial record.
Adequate Opportunity of Hearing in Appellate Jurisdiction u/s 100 CPC - HELD THAT:- The jurisprudence on Section 100, CPC is rich and varied. Time and again this Court in numerous judgments has laid down, distilled and further clarified the requirements that must necessarily be met in order for a Second Appeal as laid down therein, to be maintainable, and thereafter be adjudicated upon.
In the present case, the parties were not given the requisite time to meet the questions framed by the Court. Section 100(5) CPC suggests that there is a gap between framing of the questions at admission and hearing, as the proviso thereto gives an opportunity to the Court to frame additional questions at the time of hearing, on which the parties would have to be heard as well. Meaning thereby, that the questions framed at the time of admission, at such point of subsequent framing of questions are already known to the parties and they have had time to prepare to address arguments on the same.
The High Court's failure to provide such an opportunity and its haste in disposing of the appeal was found to be contrary to the procedural requirements and principles.
Reversal of Findings of Fact Without Trial Record in Appellate Jurisdiction u/s 100 CPC - HELD THAT:- The High Court, while exercising its jurisdiction u/s 100 CPC, should not interfere with findings of fact unless there is perversity or a complete misapplication of law. The Court emphasized that for reappreciation of evidence to be justified, the actual evidence before the lower courts must be called for and perused. The High Court's decision to overturn the concurrent findings of fact without examining the trial record was deemed improper.
It is deemed fit to remand the matter to the High Court for consideration afresh in accordance with law - appeal allowed by way of remand.
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2023 (9) TMI 1461
Validity of the notifications issued under the Karnataka Industrial Area Development Board Act, 1966 - Seeking relief that provisions of 1966 Act have been impliedly repealed on commencement of Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013.
It was concluded by High Court as follows: (1) The provisions of 1966 Act are neither repugnant to 2013 Act nor have been impliedly repealed on commencement of 2013 Act. (2) The 1966 Act is a special Act whereas, 2013 Act is a general law. (3) The provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Karnataka Amendment) Act, 2019 are neither arbitrary nor voilative of Article 21 of the Constitution of India. (4) Section 24 (2) of the 2013 Act does not apply to proceeding under 1966 Act, in the light of findings recorded in this order. (5) The Karnataka Amendment Act No.16/2019 to the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013 is constitutionally valid.
HELD THAT:- List the matter along with Special Leave Petition (C) No. 20912 of 2021 and Special Leave Petition (C) No. 961 of 2022 on 10.10.2023.
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2023 (9) TMI 1457
Retention of certain goods as security - claiming release of goods - HELD THAT:- The fact of a dispute between the parties existing relatable to the arbitration agreement is clear from the material placed before the Court. The parties hence fall within Section 11(6) of the 1996 Act and an arbitrator must be appointed in terms of the arbitration agreement.
Application is accordingly allowed and disposed of by appointing Mr. S. Muralidhar, former Chief Justice of the Orissa High Court to act as the Arbitrator subject to the learned Arbitrator communicating his consent in the prescribed format to the Registrar, Original Side of this Court within three weeks from date.
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2023 (9) TMI 1442
Grant of default bail - incomplete chargesheet or not - FSL report awaited - whether the main chargesheet as well as the subsequent supplementary chargesheets filed in the present case are incomplete on account of non-filing of documents likke doctor's opinion, FSL Report and sanction order u/s 39 of the Arms Act, 1959? - HELD THAT:- With regard to requirement sanction vis-a-vis default bail under Section 167(2) of the CrPC, in Judgebir Singh alias Jasbir Singh Samra alias Jasbir and Others v. National Investigation Agency [2023 (5) TMI 1302 - SUPREME COURT], the Hon'ble Supreme Court took note of the decision in Suresh Kumar Bhikamchand Jain [2013 (2) TMI 821 - SUPREME COURT] and held that a chargesheet filed without sanction would not be deemed incomplete.
In the present case, the investigation qua the applicant was complete at the time the first chargesheet was filed, as regards the offences mentioned in the FIR, on 02.12.2021. At the time of filing of the first chargesheet, there was sufficient material on record qua the applicant such as statements of eye-witnesses and other material evidence collected and placed on record. Mere non-filing of the FSL Report is not sufficient to conclude that the chargesheet filed in the present case was incomplete. The said report can be filed by way of a supplementary chargesheet. In any case, the case of the prosecution is primarily based on the eye witness account of the complainant. The FSL report, if any, would be a corroborative piece of evidence.
The opinion of the expert can always be filed before the learned Trial Court by way of supplementary chargesheet. It is further pertinent to note that in the present case, the learned Trial Court had taken the cognizance after the chargesheet was filed and the said order was not challenged by the petitioner.
This Court is of the opinion that the chargesheet filed in the present case was not incomplete - the bail application is dismissed.
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2023 (9) TMI 1437
Murder - rarest of the rare case - case based on circumstantial evidence - principle of proof beyond reasonable doubt - HELD THAT:- A conspectus of the prosecution's case clearly reveals that it is poised entirely on circumstantial evidence as there was no eyewitness to the kidnapping and murder of Ajit Pal. In a case resting on circumstantial evidence, the prosecution must establish a chain of unbroken events unerringly pointing to the guilt of the Accused and none other.
The manner in which the police tailored their investigation, with complete indifference to the essential norms in proceeding against the Accused and in gathering evidence; leaving important leads unchecked and glossing over other leads that did not suit the story that they had conceived; and, ultimately, in failing to present a cogent, conceivable and fool-proof chain of events pointing to the guilt of the Appellants, with no possibility of any other hypothesis, leaves us with no option but to extend the benefit of doubt to the Appellants.
The higher principle of 'proof beyond reasonable doubt' and more so, in a case built on circumstantial evidence, would have to prevail and be given priority. It is high time, perhaps, that a consistent and dependable code of investigation is devised with a mandatory and detailed procedure for the police to implement and abide by during the course of their investigation so that the guilty do not walk free on technicalities, as they do in most cases in our country.
It is indeed perplexing that, despite the innumerable weak links and loopholes in the prosecution's case, the Trial Court as well as the High Court were not only inclined to accept the same at face value but went to the extent of imposing and sustaining capital punishment on Rajesh Yadav and Raja Yadav. No valid and acceptable reasons were put forth as to why this case qualified as the 'rarest of rare cases', warranting such drastic punishment. Per contra, we find that the yawning infirmities and gaps in the chain of circumstantial evidence in this case warrant acquittal of the Appellants by giving them the benefit of doubt. The degree of proof required to hold them guilty beyond reasonable doubt, on the strength of circumstantial evidence, is clearly not established.
The conviction and sentences of all the three Appellants on all counts are set aside - appeal allowed.
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2023 (9) TMI 1433
Constitutional validity of Section 420 I.P.C.ultra vires on the vice of Article 14 & 21 of the Constitution of India - HELD THAT:- The impugned F.I.R. dated 15.04.2023 lodged at the instance of the Respondent No. 3 and the consequent registration of ECIR against the present petitioners is the subject matter of Criminal Misc. Writ Petition No. 10893 of 2023. The said writ petition has already been entertained and an interim protection has been granted to the petitioners therein. Though, a recall of the order dated 04.07.2023 passed by the Apex Court, which order forms one of the basis of our order, is stated to be pending, or for that matter a SLP is also stated to have been filed against our interim order dated 13.07.2023 passed in Criminal Misc. Writ Petition No. 10893 of 2023, there is no order staying the effect and operation of either of the orders. In such view of the matter, there are no justifiable ground to take a different view as taken while passing the order dated 13.07.2023.
List this case after six weeks along with connected matters.
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2023 (9) TMI 1432
Maintainability of revision - Entitlement to ownership and possession of the entire second Schedule property or only a one- sixth share therein - gift-deed dated 24.04.1982, was fraudulently obtained from Fathima Beevi and never acted upon or not - sale-deed dated 14.11.1990, executed by Fathima Beevi in favour of Plaintiff is valid or not - property described in the second Schedule belonged to Fathima Beevi on the basis of a Hiba executed by her father or not.
Whether a revision Under Section 115 of the Code of Civil Procedure is maintainable against an order of the subordinate Court rejecting on merits an application for review of an appealable decree passed in a civil suit?
HELD THAT:- Where the review is allowed and the decree/order under review is reversed or modified, such an order shall then be a composite order whereby the court not only vacates the earlier decree or order but simultaneous with such vacation of the earlier decree or order, passes another decree or order or modifies the one made earlier. The decree so vacated, reversed or modified is then the decree that is effective for the purposes of a further appeal, if any, maintainable under law. But where the review petition is dismissed, there is no question of any merger and anyone aggrieved by the decree or order of the Tribunal or Court shall have to challenge within the time stipulated by law, the original decree and not the order dismissing the review petition. Time taken by a party in diligently pursuing the remedy by way of review may in appropriate cases be excluded from consideration while condoning the delay in the filing of the appeal, but such exclusion or condonation would not imply that there is a merger of the original decree and the order dismissing the review petition.
Apart from above, there is another reason also for a revisional court not to entertain a revision against an order rejecting on merits an application for review of an appealable decree, which is, if the revisional court sets aside or modifies or alters a trial court's decree, the decree of the trial court would merge in the one passed by the revisional court. In consequence, the right of the party aggrieved by the trial court's decree to file an appeal would get affected.
In the instant case, the trial court, which had jurisdiction to allow or dismiss the review application, dismissed the review application on merits. If it had granted the review, the aggrieved party would have had a right to file an appeal Under Order XLIII Rule 1(w) read with Order XLVII Rule 7 of the Code of Civil Procedure. And if it had allowed the review and simultaneously altered/modified/reversed the decree, the aggrieved party would have had a right to file an appeal against the said decree. But, if the revisional court does the same, as has been done by the High Court while passing the impugned order, an anomalous situation would arise - if the revisional court's order is allowed to stand, owing to modification of the decree by the revisional court, to which in normal course an appeal would lie, the right of an appeal to the aggrieved party would get seriously prejudiced.
Where an appealable decree has been passed in a suit, no revision should be entertained Under Section 115 of the Code of Civil Procedure against an order rejecting on merits a review of that decree. The proper remedy for the party whose application for review of an appealable decree has been rejected on merits is to file an appeal against that decree and if, in the meantime, the appeal is rendered barred by time, the time spent in diligently pursuing the review application can be condoned by the Court to which an appeal is filed.
The revision of the Respondent against rejection of her application for review of an appealable decree ought not to have been entertained by the High Court. The impugned judgment and order of the High Court is set aside - The appeal is, therefore, allowed.
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2023 (9) TMI 1421
Rejection of application for transfer of the proceeding to the Ahmedabad Bench of the same Tribunal - HELD THAT:- The matter has reached final stage of hearing in the Tribunal at Hyderabad. That appears to be the main reason for which the Principal Bench of the Tribunal has rejected the petitioner’s transfer application. We do not find any flaw in such reasoning. In such circumstances, we decline to invoke our jurisdiction under Article 136 of the Constitution of India in the present matter.
The special leave petition is, accordingly, dismissed.
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2023 (9) TMI 1412
Doctrine of forum non-convenience - Territorial Jurisdiction - discretionary power under Article 226 of the Constitution of India to entertain or refuse to entertain writ petition in cases where the petitioner has alternative and more appropriate and convenient High Court to approach - HELD THAT:- There is no doubt that a fraction of the cause of action does arise within the territorial jurisdiction of this court as the petitioner's society is registered at Delhi and Head Offices of some of the respondents are also situated within the territorial jurisdiction of this court. However, taking into consideration the fact that the area of operation of the petitioner-Society concerning the dispute in hand, is within the territorial jurisdiction of the Patna High Court; the loan facility was also availed within the territorial jurisdiction of the Patna High Court; the security to the loan i.e., the mortgage loan of the petitioner falls under the jurisdiction of the Patna High Court; the destruction of the school building as a result of natural calamity which led the petitioner claiming his right to restructure the debt took place within the jurisdiction of the Patna High Court, therefore, this court is not inclined to entertain the instant petition.
The law with regard to the discretionary power of the High Court to not entertain matter on the ground of doctrine of forum non-convenience is settled by the Hon'ble Supreme Court in the case of KUSUM INGOTS & ALLOYS LTD. VERSUS UNION OF INDIA [2004 (4) TMI 342 - SUPREME COURT]. It was held that the court is not obliged to entertain cases where even a small part of the cause of action arises within its territorial jurisdiction, as the same cannot be construed to be determinative factor which may compel the court to decide the case. The doctrine of forum convenience in appropriate cases, entitles the court to exercise its discretionary jurisdiction and refuse to entertain such cases.
The Division Bench of this court in the case of Sachin Hindurao Waze vs UOI and Ors. has relied upon the above-mentioned judgements and has laid down two elements which have to be considered by any court while accepting jurisdiction to decide a writ petition under Article 226 of the Constitution of India. Firstly, if any part of the cause of action arises within its territorial jurisdiction; and secondly if the said court is the forum convenience.
On the perusal of the above discussion, it is settled that the court has discretionary power under Article 226 of the Constitution of India to entertain or refuse to entertain writ petition in cases where the petitioner has alternative and more appropriate and convenient High Court to approach. It is also settled that if only a part of cause of action arises in the territorial jurisdiction of the court, then the court is not obliged to entertain the matter if the court is of opinion that it is not the forum conveniens.
To determine material, essential or integral part of the cause of action, it is the substance of the matter that becomes relevant. In the instant case, all important events, have taken place outside territorial jurisdiction of this court. The petitioner is not incapacitated to approach the jurisdictional High Court - When admittedly a major part of cause of action arises within the territorial jurisdiction of a different High Court and only a minuscule cause of action arises within the jurisdiction of this court, the doctrine of forum non-conveniens will have full application. The said doctrine also assumes significance when the petitioner has an adequate alternative forum.
This court is not inclined to entertain the instant petition. The same is accordingly dismissed.
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2023 (9) TMI 1407
Non allocation of the Plough symbol to the writ petitioner for its candidates to contest the then-upcoming General Elections of the Ladakh Autonomous Hill Development Council, Kargil - HELD THAT:- Elections to any office/body are required to be free, fair and transparent. Elections lie at the core of democracy. The authority entrusted by law to hold/conduct such elections is to be completely independent of any extraneous influence/consideration. It is surprising that the Union Territory of Ladakh not only denied R1 the Plough symbol, but even upon timely intervention by the learned Single Judge, has left no stone unturned not only to resist but also frustrate a cause simply by efflux of time.
The request for allotment of the Plough symbol by R1 was bonafide, legitimate and just, for the plain reason that in the erstwhile State of Jammu and Kashmir (which included the present Union Territory of Ladakh), it was a recognized State Party having been allotted the Plough symbol. Upon bifurcation of the erstwhile State of Jammu and Kashmir and the creation of two new Union Territories, namely the Union Territory of Jammu and Kashmir and the Union Territory of Ladakh, though the ECI had not notified R1 as a State Party for the Union Territory of Ladakh, it cannot be simpliciter that R1 was not entitled for the allotment of plough symbol to it, in the factual background. What is also clear is that the Appellants are attempting to approbate and reprobate, which this Court will not countenance.
In the present case, there is no conflict with any other stakeholder for the reason that the Plough symbol is neither a symbol exclusively allotted to any National or State Party nor one of the symbols shown in the list of free symbols. Thus, there was and is no impediment in such symbol being granted to R1. This is also fortified in the factual setting of the Plough symbol being the reserved symbol for R1 in the erstwhile State of Jammu and Kashmir and even for the Union Territory of Jammu and Kashmir, as it now exists, where the same symbol stands allotted to it.
The entire election process, initiated pursuant to Notification dated 02.08.2023 issued by the Administration of Union Territory of Ladakh, Election Department, UT Secretariat, Ladakh, under S.O.53 published vide No.Secy/Election/2023/290-301 dated 05.08.2023 stands set aside. A fresh Notification shall be issued within seven days from today for elections to constitute the 5 th Ladakh Autonomous Hill Development Council, Kargil. R1 is declared entitled to the exclusive allotment of the Plough symbol for candidates proposed to be put up by it.
This appeal stands dismissed with costs of Rs.1,00,000/- to be deposited in the Supreme Court Advocates on Record Welfare Fund.
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