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Indian Laws - Case Laws
Showing 281 to 300 of 748 Records
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2023 (8) TMI 1547
Grant of bail - recovery of contraband - contrary to the procedure laid down under Section 52A (2) of NDPS Act - whether the sampling was done correctly or incorrectly or whether the samples have been tampered with, will not be a question which needs to detain this Court as of now? - HELD THAT:- This Court has considered the judgments of the Single Bench of Bombay High Court in case of SANTOSH PANDURANG PARTE VERSUS AMAR BAHADUR MAURYA AND ANR. [2023 (7) TMI 1486 - BOMBAY HIGH COURT] and agrees with the observations made therein. Applying the ratio in the present case, it appears that there has been a prima facie violation of provisions of Section 52A (2) of NDPS Act not only in terms of drawing of samples by the complainant on 16.10.2019, which, according to clause (c) of sub-Section (2) of Section 52A of NDPS Act was conferred and vested only upon the Magistrate and none else. That apart, even sending of the samples drawn by the complainant, instead of those drawn by Magistrate, for chemical analysis to the FSL, prima facie appears to be in violation of provisions of Sections 52A of NDPS Act.
The judgment of the Supreme Court in Bothilal’s [2023 (4) TMI 1188 - SUPREME COURT] also makes it clear as to in what manner the prosecuting agencies are to not only prepare an inventory of the contraband seized but also the manner in which the Magistrate alone is empowered or competent to draw the samples in accordance with Sections 52A(2)(c) of NDPS Act. The same appears, prima facie, to have been violated in the present case.
This Court is of the considered opinion that the applicant has made out a case for release on regular bail and accordingly the applicant be released on bail on his furnishing personal bond in the sum of Rs. 2 Lakhs with one surety of like amount to the satisfaction of the learned Trial Court, subject to the fulfilment of conditions imposed - the bail application stands disposed of.
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2023 (8) TMI 1546
Seeking grant of regular bail - commercial quantity of contraband under the NDPS Act - Applicability of Section 37 of the NDPS Act concerning stringent conditions for bail - HELD THAT:- It is manifest from the perusal of the Nominal Roll on record that the applicant has already spent 03 years 08 months and 10 days (approx.) in judicial custody and is thus entitled to be released on regular bail by virtue of the ratio laid down by the Supreme Court in Rabi Prakash [2023 (7) TMI 1459 - SC ORDER] and Mohd Muslim [2023 (5) TMI 321 - SUPREME COURT].
Though the FIR was registered on 16.10.2019, the trial is still at the stage of examination of prosecution witnesses and it appears that it would take some time for the prosecution evidence to be concluded and thus, the liberty of an individual cannot be restrained without any reasonable cause.
Keeping in view the ratio laid down by the Supreme Court in Mohd. Muslim, prima facie and as of now, there is no material placed on record by the respondent to show that the applicant, if released, may involve himself in similar offences. It is also clear from the aforesaid that there has to be tangible or ascertainable material for the Court to reach any such conclusion. The absence whereof cannot be read against the individual.
The applicant is entitled to be and is released on regular bail upon furnishing a personal bond of Rs.2,00,000/- with one surety of the like amount to the satisfaction of the learned Trial Court, subject to the fulfilment of conditions imposed - bail application allowed.
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2023 (8) TMI 1498
Refusal to make a Reference under Section 10 of the Industrial Disputes Act, 1947 - raising the dispute after 24 years of termination - Whether appropriate Government can refuse to make a Reference under Section 10 of the Industrial Disputes Act, 1947 on the ground of delay and latches? - Whether the Government can take up the role of Adjudicating Authority while deciding the question as to whether a Reference be made or not?
HELD THAT:- The intention of the legislature is to be gathered from the words used under Section 10 (1) of the Act of 1947, therefore, it is not open for the appropriate Government to travel beyond the intention of the legislature and it could not be presumed that the legislature has committed mistake in not providing limitation period while interpreting the statutory provision. Thus, it can safely be held that it would not be open for the appropriate Government, while exercising the powers under Section 10 (1) of the Act to decide the question whether the claim of the workman is stale or not.
Hence, it is clear that the delay and latches itself cannot be a ground for refusing to make a Reference. If a person is guilty of delay and latches, it may be a ground for the Labour Court, either to refuse to grant any relief or refuse to grant relief of back wages. The Government cannot take up the role of an Adjudicating Authority while deciding the question as to whether a Reference should be made or not.
While referring the dispute, the appropriate Government can formulate the question of ‘Delay & Latches’ to be decided by the Labour Court as a preliminary issue while simultaneously also making a reference on the industrial dispute to be decided on secondary issue.
The impugned order is quashed and set aside, the Government is directed to make a Reference of the dispute - Petition disposed off.
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2023 (8) TMI 1497
Dishonor of cheque - right to trial - cross-examination of witnesses - recall of complainant u/s 145(2) of NI Act for cross examination - violation of principles of natural justice - HELD THAT:- From the documents on record it appears that examination in chief of the complainant was recorded on 29.9.2022. On completing the examination in chief, the learned trial Judge recorded that the accused did not make any application to cross examine the complainant. Even otherwise accused is not prepared to cross examine the complainant on the ground that his advocate is busy before another Court. Section 309 of Cr.P.C. provides that the fact that pleader of the party is before another Court cannot be a ground for adjournment. Hence, cross of the accused is closed.
The statement was explained to the accused and the case was kept for defence evidence. Advocate also could not remain present on account of miscommunication about the date of hearing. In the application under Section 145(2) of the Act, it was stated that the case has been filed by the complainant fraudulently by misusing cheques. The accused has paid the amount as claimed by complainant. Learned Magistrate vide order dated 7.2.2023 allowed the applications. The Court had observed that the accused was not aware about the filing of an application for cross examination on the date of completion of examination in chief of PW1. Advocate was not present.
Admittedly no such application for cross examination was filed on the date when examination in chief was over. However, it cannot be ignored that at the relevant time accused was not represented by advocate. Evidence recorded in examination in chief has to be tested by granting opportunity to the accused through cross examination. Although the impugned order does not deal in detail about application under Section 145(2) of the NI Act, from the grounds urged in the application, the respondent cannot be deprived of cross examination of complainant.
In the case of Rakesh Singh Vs. Anil Madanmohan Gulati [2023 (5) TMI 645 - BOMBAY HIGH COURT] this Court again reiterated principles to underline Section 145(2) of the NI Act and observed that accused has right to fair trial. Once it is recognized that accused had absolute and unqualified right to have the complainant and any or all his witnesses summoned for cross examination, accused cannot be deprived of such right unless there is extra ordinary reason for doing so.
Considering the factual aspect of the present case, no interference is called for in the impugned order passed by the learned Magistrate and devoid of merits - petition dismissed.
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2023 (8) TMI 1487
Seeking stay on the entire arbitral award - fraud and corruption - Section 34 of the Arbitration and Conciliation Act, 1996 - HELD THAT:- Coming to the instant case at hand, this Court considers it prudent to discuss fraud and corruption first since these are the only two grounds outlined in the Act on which the Court may grant an unconditional stay on the arbitral award.
Fraud - HELD THAT:- The Hon'ble Supreme Court in SP CHENGALVARAYA NAIDU VERSUS JAGANNATH [1993 (10) TMI 315 - SUPREME COURT] gave the definition of fraud as "an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage."
Corruption - HELD THAT:- The amendment to the Arbitration and Conciliation Act, 1996 by way of Act 3 of 2021 (w.r.e.f. 23.10.2015) permits this Court, provided Section 34 challenge to the arbitral award is pending, to grant unconditional stay on an application under Section 36 (2) of the Act if the court is prima facie satisfied that the making of the arbitral award has been induced or effected by fraud or corruption.
In the present case, with respect to the conduct of the parties, this Court observes a disconcerting trend where the hallowed principles of honesty, integrity and probity seem to have gone up in smoke. It shocks the conscience of this Court to observe that the Railways, in defending a claim valued above Rs. 4000 crores, declined to present any witness and refrained from leading any evidence. Subsequently in the arbitral proceedings, the lackadaisical and indifferent attitude of the Railways during the cross examination of the claimant witnesses, as also noted in the arbitral award, leaves much to be said about the sordid state of affairs and absolute apathetic approach of the Railways which happens to be a Government of India public sector undertaking dealing with funds of the public exchequer.
Given that fraud has a very wide connotation in legal parlance, it is egregiously absurd to suggest that any award which may be fraudulently obtained is limited and restricted to the above instances cited by him in the preceding paragraph. The Court cannot overlook fraud being perpetuated in the making of the award by way of collusion between the parties. In any event, as at this juncture this Court is not coming into any conclusion on setting aside of the arbitral award, the case laws cited by the learned Advocate General can be comprehensively considered by the Court at the stage of adjudicating the section 34 application.
Using the power conferred under section 36 (3) of the Arbitration and Conciliation Act, 1996, as amended by Act 3 of 2021, this Court grants an unconditional stay on the operation of the Arbitral Award dated May 10, 2021 read with the corrections order dated August 18, 2021, pending disposal of the challenge under Section 34 of the Arbitration and Conciliation Act, 1996.
Application allowed.
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2023 (8) TMI 1470
Jurisdiction of the Second Appellate Court - Claim of adverse possession over Government land - Bar of jurisdiction u/s 20 by the Kerala Land Conservancy Act, 1957 (Act) - Requirements and burden of proof for adverse possession - Whether the claimants have perfected their title over the property, subject matter of dispute, by adverse possession -
HELD THAT:- A perusal of the judgement impugned does not reflect any question of law, either substantial or "involving in the case" to have been framed by the Court in the Second Appeal. The Section 100, Code of Civil Procedure jurisdiction is not akin to the jurisdiction conferred Under Section 96 of Code of Civil Procedure wherein it is open for the Court to consider both questions of fact and law. This jurisdiction is exercisable only when the Court is convinced that the dispute at hand involves a substantial question of law, and proceeding under this jurisdiction sans framing questions of such nature renders the proceedings to be "patently illegal."
In view of the principles laid down in the above stated judgements, the impugned judgement must be faulted with for not complying with the well-established contours of Section 100, Code of Civil Procedure.
We have hitherto observed that the instant litigation has continued for a considerable period of time, i.e., four decades. Prudence would not be served by sending this matter back to the court below for consideration in light of the above discussion and, therefore, with an aim to put an end to the matter, this Court proceeds to examine the claim of adverse possession on its own merits, as is so argued across the bar.
The claimants via a claim of adverse possession seek to be declared the owners, by lapse of time of land belonging to the government. When faced with this situation, it is clear that the Court is required to consider this question "more seriously". The first part of burden of proof as discussed in Revamma [2007 (4) TMI 738 - SUPREME COURT] is undoubtedly met with since the subject land being Government land, was never in dispute. The burden of proof once shifted, it was for the claimants to prove their possession to be openly hostile to the rights of the government.
By way of evidence adduced, nothing, save in except testimonies of villagers, has been brought on record. A perusal of such evidence also shows no decisive statements being made and instead, on the basis of the estimated age of trees on such land, is the length of possession of the Respondents being calculated.
An estimation of age of the trees cannot be, by any stretch, termed as sufficient proof required to disturb the title that undisputedly rests with the Government as also testified by PW-1 and PW-2. Proper and concrete proof as required would need for the claimants to show some proof of possession, other than statements which may be vague. It is also clear from the discussion that merely a long period of possession, does not translate into the right of adverse possession. Surmises, conjectures and approximations cannot serve the basis for taking away the right over land resting with the State and place the said bundle of rights in the hands of one who did not have any such rights.
It is a matter of record that proceedings of ejectment of the claimant stood initiated before the concerned Tehsildar in which claimant neither pleaded nor claimed title by way of adverse possession. To the contrary, the unauthorised occupation was not disputed, with the only plea being taken of having planted certain trees (rubber trees), put to use for rubber tapping.
It is for the first time in the written statement that the factum of passing the order under The Act was brought to the notice of the Civil Court which fact was neither refuted to nor explained by way of replication.
That apart, joint reading of the testimonies of PW1 (Brajeetha), PW3 (Cherian) and PW4 (Narayanan), do not in any manner establish the factum of the claimant having ever claimed the possession hostile to that of true owner i.e., the State.
Their testimonies only establish Plaintiffs/claimants' possession and having put the land to use for planting trees, though with a variation of period, i.e., about 15 to 40 years. Be that as it may, it has come on record with some variations that the rubber trees were planted just about 15 to 18 years prior to the date on which the depositions were recorded.
On oath, in a specific query put to PW 1 as to whether there is no record to establish suit the property to be in their possession from the year 1940 onwards, there is a categorical denial. Equally the witness denies having any proof of residing in the property, since 1940, adjacent to the property subject matter of the suit.
All that it is stated is that the property was being enjoyed, assuming the same to be theirs.
It is in this view of the matter, we find that the findings returned by the High Court holding the witnesses, more particularly PW1 to PW5 to have established the claimants' claims by way of adverse possession to be erroneous.
Thus, the appeal is allowed. The judgement of the High Court in S.A. 740 of 1995 dated 5th August,2009 is set aside, and the judgement rendered by the First Appellate Court in Appeal Suit No. 3 of 1991 dated 3rd April, 1995 is restored.
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2023 (8) TMI 1463
Rejection of second bail application filed by the appellant under Section 439 Cr.P.C. - appellant was involved in the explosives or not - It is contended that incriminating no tower material was found in the mobile recovered from the appellant and the car location also did not connect with the other co-accused - HELD THAT:- Looking to the fact that prima facie there is evidence against the accused; that he was earlier also arrested for the offence under UAPA Act in the year 2015; that there is disclosure statement of other co-accused with regard to his presence in the meetings; that he himself has given information under Section 27 of Evidence Act; that mobile phones have been recovered from the appellant which had connectivity with the other co-accused; that there is a specific bar under proviso to Section 43D(5) of UAPA Act, we are not inclined to entertain the present criminal appeal.
Appeal dismissed.
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2023 (8) TMI 1459
Issuance of Look out Circular - petitioner is not declared as a proclaimed offender by any Indian court nor is evading/has evaded any court proceeding pending trial in India - HELD THAT:- The issuance of LOCs in respect Indian Citizens and foreigners was governed by an Office Memorandum No. 25016/31/2010-Imm dt.27.10.2010, which permits Look Out Circulars to be opened essentially against persons involved in cognizable offences who are evading arrest and their appearance in trial courts despite coercive measures with the likelihood that they would leave the country to evade trial or arrest. The intention of issuing an LOC was to act as a coercive measure to make a person surrender to the Court of Law or investigating agency.
The validity and legality of LOC's therefore, heavily depends on the prevailing circumstances governing the date on which such an LOC request is being made.
Based on the materials placed on record in the instant case, this Court is of the opinion that no exceptional case of adverse effects on India's economic interest exist - In the present case, there is no LOC against the Petitioner. The LOC was issued against the petitioner who, along with his company M/s AR Intl (Hong Kong) Limited, had already been adjudged Bankrupt by the Hon'ble High Court of Hong Kong. Additionally, the company's creditors, during a General Body meeting held on 22.03.2019 had appointed joint and several Trustees to take over and manage the estate of the bankrupt with immediate effect, being a process in which the Respondent bank had already partaken.
The issuance of LOC, despite the respondent bank already participating in the securing of the rights via winding up process on M/s AR Intl (Hong Kong) Limited which took place in Hong Kong and the subsequent declaration of discharge of the petitioner thereof, is excessive and without any due merit. It is amply evident that the petitioner has no criminal case mentioned against him by the respondent in India. All civil, criminal and recovery proceedings were undertaken by the Respondent Bank against the petitioner in Hong Kong, which have all reached their logical ends - LOC is a major impediment for a person who wants to travel abroad. There are plethora of judgments which states that no person can be deprived of his right to go abroad other than for very compelling reasons.
The right to travel abroad is a basic human right and a part of Article 21 of the Constitution of India and no person can be deprived of this right without following the due process of law. Any State action must satisfy the requirements of Articles 14, 19 & 21 of the Constitution of India and must be reasonable and non arbitrary. The Courts in such cases will have it well within their mandate under Article 226 to intervene in the said decisions of the Look Out Circular Issuing authorities to prevent such unreasonableness and perversity and in ensuring adequate conformity to both the form and substance of the standards set in the Official Memorandums from which the power to issue LOCs are derived.
The writ petition is allowed.
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2023 (8) TMI 1451
Territorial jurisdiction to entertain the present writ petition - place of arising of cause of action - petitioners were receiving the goods for onward sale etc. in the State of Punjab were manufactured by the respondent No.7 in the State of Rajasthan - HELD THAT:- No part of cause of action has arisen within the territorial jurisdiction of this Court. Merely because the petitioner-Firm was having a business transaction with respondent No.7 and certain evasions having been pointed out in the same, will not give any cause of action to the petitioner-Firm to approach this Court by way of filing the present writ petition.
Secondly, merely because the show cause notice has been issued to the petitioner-Firm on the basis of a common file maintained by the official respondents, will not be relevant to draw a presumption that part of cause of action has arisen to the petitioner-Firm in the territorial jurisdiction of this Court, merely because on the basis of the same common file, the show cause notice has been issued to the respondent No.7.
In view of authoritative pronouncements of the judgments by the Hon’ble Supreme Court, the arguments of learned Sr. Counsel that the proceedings out of the present show cause notice have started from a file of even number from which the proceedings were started against the respondent No.7, has no bearing giving rise to any cause of action to file the present writ petition before this Court.
Merely because respondent No.7- M/s. Gagan Pharmaceuticals, Sriganganagar has filed the writ petition against the show cause notice issued to it before this Court and the same is pending, will not give any cause of action to the petitioner-Firm to file a writ petition before this Court against the show cause notice issued to it in State of Punjab.
The present writ petition is not maintainable before the High Court of Judicature for Rajasthan at Jodhpur and, therefore, the same is dismissed on the ground of territorial jurisdiction.
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2023 (8) TMI 1448
Prayer for recall of the Appellant as a witness in the trial before the Court below for further examination has been rejected - Section 311 of Code of Criminal Procedure - HELD THAT:- In Manju Devi v. State of Rajasthan, [2019 (4) TMI 2152 - SUPREME COURT], this Court emphasized that a discretionary power like Section 311, Code of Criminal Procedure is to enable the Court to keep the record straight and to clear any ambiguity regarding the evidence, whilst also ensuring no prejudice is caused to anyone.
In Harendra Rai v. State of Bihar [2023 (8) TMI 1389 - SUPREME COURT], a 3-Judge Bench of this Court was of the opinion that Section 311, Code of Criminal Procedure should be invoked when '... it is essential for the just decision of the case.'
The Court finds that a case for interference has been made out. Under the peculiar facts of the present case, the request for recall of the Appellant Under Section 311, Code of Criminal Procedure was justified, as at the relevant point of time in his initial deposition, there was no occasion for him to bring the relevant facts relating to similarity of data before the Court, which arose after the CFSL expert was examined.
The orders of the Courts below are set aside. The application of the Appellant Under Section 311, Code of Criminal Procedure for his recall to be further examined as a witness stands allowed - Appeal allowed.
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2023 (8) TMI 1447
Robbery - snatching away a gold chain weighing 16 grams belonging to PW1 - seeking to recall application under Section 311 of Cr.P.C - whether there was any chance of identification which is essential for the just decision of the case? - HELD THAT:- Section 311 Cr.P.C provides that any Court may, at any stage of inquiry, trial, or other proceedings under the Cr.P.C., summon any person as a witness or examine any person in attendance, though not summoned as a witness or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the matter.
The aid of Section 311 Cr.P.C. should be invoked with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case, and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. It is trite that due care should be taken by the Court while exercising power under the section, and it should not be used for filling up the lacuna by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence or the accused or to give an unfair advantage to the rival side and further, the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties - Recalling a witness for the just decision of the case is not a hollow procedure. A strong and valid reason should be recorded for the exercise of that power facilitating a just decision.
The application under Section 311 of Cr.P.C was filed at the very fag end of the trial. The prosecution had enough opportunity earlier. The delay in filing the application is one of the most important factors that has to be explained in the application.
This Court is of the view that the learned Magistrate was not justified in allowing the application to recall the witness - The application seeking the recalling of witness stands dismissed.
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2023 (8) TMI 1445
Doctrine of merger and doctrine of res-judicata versus Law of precedents - Refund to Himanshu Dewan & Sonali Dewan and Ors, the amount collected towards excess sale area, and to execute supplementary correction deeds within six weeks from the date of the order - seeking a refund of the amounts paid by them towards the increased sale area alleging, inter alia, that there was neither increase in the carpet area nor in the built-up area, and that the demand towards increase in the sale area made by the Appellant was illegal - Arising of cause of action - HELD THAT:- The Appellant, as per the contractual terms, is well within their right to ask for enhanced sale consideration on increase in the sale area as defined. The Respondents have not questioned and challenged this right of the Appellant. They have challenged the computation and calculations. The Respondents have the right to ask for calculations and details, when the Appellant had stated that the sale area had increased. On being satisfied with the calculation, the Respondents could have accepted the increase in the sale area, if the same was in accordance with the agreement. The 'cause of action' arose when the Appellant insisted and compelled the Respondents/allottees to make payment, but did not furnish the details and particulars to enable the Respondents/allottees to ascertain the actual allocated sale area - In the context of the present case, it is an accepted position that the sale deeds were executed with the Respondents between the period from 13.04.2018 to as late as 09.01.2020. In view of the aforesaid, the complaints filed by the Respondents cannot be dismissed on the ground of being barred by limitation Under Section 69 of the Act.
Similar issues had arisen before this Court in ARIFUR RAHMAN KHAN AND ORS. VERSUS DLF SOUTHERN HOMES PVT. LTD. AND ORS. [2020 (8) TMI 852 - SUPREME COURT]. This Court accepted the argument by the consumers that execution of a deed of conveyance by a flat buyer would not preclude a consumer claim for compensation for delayed possession in a case where the allottees were not given an option, but were rather told that the possession would not be given and the conveyance deed would not be executed without the acceptance of the offer of possession terms.
The dismissal of the appeal in the case of PAWAN GUPTA VERSUS EXPERION DEVELOPERS PVT LTD DELHI [2020 (8) TMI 940 - NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI] without any reasons being recorded would not attract Article 141 of the Constitution of India as no law was declared by the Supreme Court, which will have a binding effect on all courts and tribunals in India. There is a clear distinction between the binding law of precedents in terms of Article 141 of the Constitution of India and the doctrine of merger and res judicata.
The order of this Court dismissing the appeal in the case of Pawan Gupta cannot be read as a precedent and applied to the cases in hand. In fact, precedents cannot decide questions of fact. The decision in the case of Pawan Gupta was based on evidence adduced by the Appellant/builder/developer, which in the said case was not found to be sufficient and cogent to justify and substantiate the demand raised in view of the increased sale area. No doubt, the architect's certificate and report dated 23.09.2020 was filed before this Court as additional documents, but a non-reasoned order passed by this Court dismissing the case cannot be read as accepting and considering the additional evidence, or as rejecting justification and reasons given therein for claiming additional/increased sale area - the order passed by this Court dismissing the appeal in the case of Pawan Gupta is confined to the facts of the said case, including the evidence led by the parties before the National Commission. The National Commission was therefore required to consider and examine the contentions of the Appellant and not overrule the same on the grounds of the principle of res judicata and on the Rule of binding precedent, which do not apply. An order of remand on the question of merits as to the stipulation and increase in the sale area is therefore required.
The impugned order and judgment passed by the National Commission is set aside and the appeal is disposed of with a direction of remand in terms of the observations and directions given herein.
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2023 (8) TMI 1441
Maintainability of an application for anticipatory bail after charge sheet has been filed in the Court - question placed for consideration by this Larger Bench.
As per Manoj Kumar Tiwari, J. - An application seeking anticipatory bail would be maintainable even after filing of charge sheet in the Court.
As per Ravindra Maithani, J - An application for anticipatory bail is not maintainable after the chargesheet has been filed in the court.
As per VIPIN SANGHI, C.J.
HELD THAT:- The view taken by Manoj Kumar Tiwari, J. that an application seeking anticipatory bail would be maintainable even after the filing of the charge- sheet in the court, agreed upon - Right to life and personal liberty is a valuable right available to a person, guaranteed under Article 21 of the Constitution of India, and it is one of the most precious and cherished rights. The said right to life and personal liberty cannot be curtained, or deprived, except without following the due process of law.
Section 438 of the Code of Criminal Procedure, which deals with what is popularly known as "anticipatory bail", seeks to prevent the apprehended infraction of this right to life and personal liberty of a person, by providing that where any person has reason to believe that he may be arrested on accusation of having committed a non- bailable offence, he may apply to the High Court, or to the Court of Session, for a direction under the said provision and the Court may, if it thinks fit, direct that in the event of such an arrest, he shall be released on bail.
In GURBAKSH SINGH SIBBIA VERSUS STATE OF PUNJAB [1980 (4) TMI 295 - SUPREME COURT], the Supreme Court considered the issue - whether the operation of an order passed under Section 438(1) of the Code should be limited in point of time. While recognizing the power of the Court to limit the operation of such an order to a shorter period, for reasons to be recorded, the Supreme Court observed that the normal rule should be not to limit the operation of the order in relation to a period of time.
The Law Commission in its 41st report, while recommending pre-arrest bail, observed that - their seems to be no justification to require the accused to first submit to custody, remain in prison for some days, and then apply for bail.
The view of Manoj Kumar Tiwari, J. agreed upon that the legislation has not imposed any restriction as regards the stage upto which an application for anticipatory bail can be entertained.
That being the position, an interpretation of Section 438 Cr.P.C. which curtails the remedy available to an accused - to preserve his right to life and personal liberty, should be eschewed.
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2023 (8) TMI 1436
Dishonour of cheque - condition has been imposed upon the petitioner to deposit 20% of the compensation/fine amount - Seeking quashing of condition imposed by Additional Sessions Judge, Gurugram while suspending the sentence of the petitioner - HELD THAT:- There is no doubt to the mind of this Court on perusal of the statement of object and reasons for introducing these provisions is to address the issue of undue delay in final resolution of the cheque dishonor cases and to provide interim relief to the holder of the cheque in due course, as well as, to discourage the frivolous and unnecessary litigation; besides strengthening the credibility of the cheques as mode of payment; so as to help the trade and commerce in general and the lending institutions and the banks in particular in extending financial facilities to productive sectors of economy.
In the case in hand, the compensation amount has been adjudicated to be half of the amount of cheque involved which by no means can be said to be un-reasonable or arbitrary.
Coming to the question of validity for imposing the restriction to deposit 20% of the amount of compensation as a pre-requisite for suspending the sentence, the Apex Court in the case of SURINDER SINGH DESWAL @ COL. S.S. DESWAL AND OTHERS VERSUS VIRENDER GANDHI [2019 (5) TMI 1626 - SUPREME COURT], has observed that power of Appellate Court directing appellant original accused to deposit more than 20% of fine amount is mandatory in nature.
It is also well known to this Court that certain unscrupulous and notorious drawers of the dishonored cheque have been misusing the procedural delay to their advantage after obtaining stay on the proceedings which only frustrates the basic object and reason of incorporation of Section 138 of the Negotiable Instruments Act, 1881. The amendment in Section 148 of the said Act has been cautiously effected primarily having at the back of mind to expedite the disposal of proceedings under the Negotiable Instruments Act and by no stretch of discussion, it could be said that the substantive right of appeal of the accused-appellant has been taken away/or effected.
The petitioners-accused are directed to deposit the amount as ordered by the Lower Appellate Court within the stipulated time of 60 days, which may be further extended by 30 days - Petition dismissed.
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2023 (8) TMI 1433
Property being pledged in a loan and then being sold after being undervalued - Civil dispute of not - difference of opinion between the members of the Division Bench and the matter has been referred under Chapter VIII Rule 3 of the Rules of the Court but in the referring order the point of difference is not noted - HELD THAT:- Looking to the nature of the incident being related to financial institutions of money lenders who were pursuing recovery proceedings of their enforceable debts and the proceedings thereof satisfy the same, it is a fit case for grant of interim protection to the petitioners. The argument of learned Additional Advocate General that the petitioners will not arrested and the proceedings, if any, will be taken up as per the directions of the Apex Court in the judgment in NIRAJ TYAGI AND ANOTHER VERSUS STATE OF U.P. AND 3 OTHERS [2023 (7) TMI 1368 - ALLAHABAD HIGH COURT] relied by him is concerned, the interim order as granted is not limited to merely protecting the arrest of the petitioners but is on other counts too. Since this Court has come to a conclusion that it is a fit case for grant of interim protection, the same is granted.
The present case is a fit case for grant of interim protection in terms of the order passed by another Division Bench of this Court in Niraj Tyagi - List this petition before the Division Bench on the date fixed therein for appropriate orders.
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2023 (8) TMI 1425
Benefit of enhancement of retirement age from 60 to 65 years as applicable to the AYUSH doctors working under the Ministry of AYUSH - cardinal principles of law governing exercise of extraordinary jurisdiction under Article 226 - Writ of certiorari - HELD THAT:- A writ of certiorari, being a high prerogative writ, is issued by a superior court in respect of the exercise of judicial or quasi-judicial functions by another authority when the contention is that the exercising authority had no jurisdiction or exceeded the jurisdiction. It cannot be denied that the tribunals or the authorities concerned in this batch of appeals had the jurisdiction to deal with the matter. However, the argument would be that the tribunals had acted arbitrarily and illegally and that they had failed to give proper findings on the facts and circumstances of the case.
The respondent made an application in the Revenue Court of the Mamlatdar of Sirsi praying for the delivery of possession of property which the appellant was on that date possessing as the tenant under him on the basis of a ‘Mulegeni’ deed executed by the respondent's predecessor-in-interest in favour of the appellant's predecessor-ininterest. The case was governed by the Bombay Tenancy and Agricultural Lands Act, 1948, and one of the questions in controversy was whether before applying for the delivery of possession, it was incumbent upon the respondent to have given a notice terminating the tenancy. The Mamlatdar made an order for possession in favour of the respondent. The Collector allowed the appeal and set aside the order of the Mamlatdar.
The purpose of certiorari, as we understand, is only to confine the inferior tribunals within their jurisdiction, so as to avoid the irregular exercise, or the non-exercise or the illegal assumption of it and not to correct errors of finding of fact or interpretation of law committed by them in the exercise of powers vested in them under the statute. The accepted rule is that where a Court has jurisdiction it has a right to decide every question which crops up in the case and whether its decision is correct or otherwise, it is bound to stand until reversed by a competent Court.
The impugned order passed by the High Court is not sustainable in law and the same deserves to be set aside - Appeal allowed.
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2023 (8) TMI 1421
Illegal gratification demanded by Public Servant - HELD THAT:- There is no any positive evidence on record to prove that accused has demanded bribe money at any point of time. Therefore, in view of the principles enunciated in the aforementioned judgment of Hon'ble Apex Court, the proof of demand and acceptance of bribe money is sine qua non for proving the offence under Section 7 and 13 (1)(d) of P.C. Act. The evidence placed on record by the prosecution does not conclusively prove the accused having demanded bribe money for doing the work of complainant. The Trial Court without properly appreciating the evidence on record to satisfy the test of twin requirement of demand and acceptance of bribe money for the offence under Sections 7 and 13(1)(d) of P.C. Act erroneously recorded finding that prosecution has proved the guilt against accused beyond all reasonable doubt. In view of the reasons recorded above, the prosecution has failed to bring home the guilt of the accused for the charges levelled against him and as such interference of this Court is required.
The judgment of the Trial Court on the file of IV Additional District and Sessions Judge and Special Judge (PCA), Belgaum, in Spl.C.No.164/2011, dated 30.11.2013 is hereby set aside - The accused is acquitted for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of P.C. Act - Appeal filed by the appellant/accused is hereby allowed.
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2023 (8) TMI 1416
Seeking defreezing of bank accounts of the Petitioner - seeking direction to Respondent DGFT to revalidate/extend the Licence without being influenced by the directions of DRI and permit the petitioner Company to discharge its export obligation under the Advance Authorisation - seeking direction to Respondent DGFT to grant waiver/relaxation of the composition fee, if applicable for such re-validation/extension - HELD THAT:- This Court considers it apposite to dispose of the present petition with liberty to the petitioner to make a fresh application for revalidation / extension of Advance Authorisation Licence. In the event any such application is made, the DGFT shall consider it in accordance with law.
Considering that the present petition is pending before this Court since February 2021, it is considered apposite to direct that in the event, there was any scheme for waiver or relaxation of composition fee, which was available during pendency of the present petition, the benefit of the same may also be provided to the petitioner.
The petition is disposed of.
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2023 (8) TMI 1415
Seeking defreezing of bank accounts of the Petitioner - seeking direction to Respondent DGFT to revalidate/extend the Licence without being influenced by the directions of DRI and permit the petitioner Company to discharge its export obligation under the Advance Authorisation - seeking direction to Respondent DGFT to grant waiver/relaxation of the composition fee, if applicable for such re-validation/extension - HELD THAT:- This Court considers it apposite to dispose of the present petition with liberty to the petitioner to make a fresh application for revalidation / extension of Advance Authorisation Licence. In the event any such application is made, the DGFT shall consider it in accordance with law.
Considering that the present petition is pending before this Court since February 2021, it is considered apposite to direct that in the event, there was any scheme for waiver or relaxation of composition fee, which was available during pendency of the present petition, the benefit of the same may also be provided to the petitioner.
The petition is disposed of.
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2023 (8) TMI 1389
Abduction - Relevance and admissibility of the FIR - Conduct of the Accused - Status of the Bayan Tahriri/Written Statement of the deceased - testimony of a Prosecution Witness.
Whether the Supreme Court, in appeal against acquittal, can consider the High Court's judgment dated 13.03.2007 passed in the Habeas Corpus Writ Petition, which was not part of the evidence produced (although it was part of the Trial Court record) and was not relied upon by the prosecution before the Trial Court, as a piece of incriminating evidence in the nature of a Public Document and, if yes, up to what extent? - HELD THAT:- The judicial notice of any fact is generally not taken in criminal matters, but the present matter stands on an altogether different footing in view of what has been noted hereinbefore. It falls in the category of rarest of rare cases and hence, it requires a different approach. This Court, in its considered opinion, finds that the judgment in the Habeas Corpus Petition was passed on the basis of notes of the Inspecting Judge of the High Court, the report of Additional Director General of Police, statement of CW-1 Smt. Lalmuni Devi recorded in Court before the Magistrate under the directions of High Court, her affidavit filed before the High Court, her statement/disclosure in Bhojpuri before one of Judges hearing the Habeas Corpus petition and several other authoritative materials after giving the opportunity of hearing to the parties, including the Accused of the crime in question.
The judgment dated 13.03.2007, which is a public document, is well discussed and is based upon authoritative materials and was passed in consonance with the doctrine of audi alteram partem. Moreover, it has a torch bearer effect over the facts of the case. Thus, it qualifies the requirement of law for the purpose of taking judicial notice thereof, and this Court takes judicial notice of the inferences, observations and findings arrived at by the Division Bench and the directions issued in its judgment dated 13.03.2007 to the extent of the subsequent conduct of the Accused, deplorable functioning of the Public Prosecutor, Police Administration and the Presiding Officer of the Trial Court to extend undesirable favour to the Accused.
Whether the previous or subsequent conduct of the Accused, established on record, can be treated as a circumstance against the Accused in view of Section 8 of the Evidence Act? - HELD THAT:- The obvious question pops up in the mind of any prudent person, as to why he was instrumental, when he was not guilty of the offence to which he was being tried. The obvious answer to this would reasonably come to mind of any prudent person that his guilty mind was fearful about the result. All these aspects leave no room for doubt that the subsequent conduct of Respondent No. 2 is one of the major circumstances pointing towards his guilt for the incident that occurred at 9AM on 25.3.1995.
Whether the FIR or Bayan Tahriri can be said to be proved as a piece of reliable prosecution evidence and if so, what would be the position of law on the issue of treating the FIR or Bayan Tahriri as the Dying Declaration? - HELD THAT:- Considering the failure of State machinery and failure of the Trial Court to ensure a fair trial from the perspective of the victim side, the aspect of non-marking of the FIR and Bayan Tahriri as an exhibit, non-production of the formal witnesses, i.e., the Constable Clerk and Investigating Officer to prove the lodging of FIR/Bayan Tahriri and the flimsy rejection of application filed by Kishori Rai seeking his examination as a witness along with the examination of Nagendra Singh and Sanjeev Kumar Singh (who had signed said written statement/Bayan Tahriri as attesting persons) as witnesses in the Trial proceeding do not vitiate the genuineness of the FIR and Bayan Tahriri, and we refuse to give any discount to the Accused persons for non-exhibition thereof - In the present case, the FIR, being a public document and a dying declaration of the informant, is the foundation of the entire prosecution case. However, in the present matter, we have to find out the 'evidence of those persons who can vouchsafe for the truth of the facts in issue'.
Whether the testimony of a Prosecution Witness (an old feeble, rustic, illiterate lady and mother of the deceased and an eye-witness of the incident), who stated in the end of her cross-examination that "her son (another alive son) had asked her to take the name of Accused before the Court," can be treated to be a reliable evidence against such Accused, especially in view of the checkered and abnormal history of the case? - HELD THAT:- This Court finds that the testimony of CW-1, Lalmuni Devi (mother of deceased Rajendra Rai), corroborates the same and makes it reliable. The narration about the incident's time, place and manner, the specific role attributed to the Accused persons, etc, as described by Lalmuni Devi (CW-1), conforms with the contents of the FIR/Bayan Tahriri - This Court is conscious of the fact that a path different from the normal is being adopted to determine the guilt of the Accused.
The Trial Court and the High Court miserably failed to notice the sensitivity and intricacies of the case. Both the Courts completely shut their eyes to the manner of the investigation, the Prosecutor's role, and the high- handedness of the Accused as also the conduct of the Presiding Officer of the Trial Court, despite observations and findings having been recorded not only by the Administrative Judge but also by the Division Bench deciding Habeas Corpus petition. They continued with their classical rut of dealing with the evidence in a manner as if it was a normal trial. They failed to notice the conduct of the Public Prosecutor in not even examining the formal witnesses and also that the Public Prosecutor was acting to the advantage of the Accused rather than prosecuting the Accused with due diligence and honesty - Both the courts below ignored the administrative reports as also the judgment of the High Court in the Habeas Corpus petition. In fact they should have taken judicial notice of the same. They completely failed to take into consideration the conduct of the Accused subsequent to the incident, which was extremely relevant and material in view of Section 8 of the Evidence Act. They failed to draw any adverse inference against the Accused with respect to their guilt.
In the present case, unfortunately the Trial Court as well as the High Court failed to exercise their powers under the aforesaid provisions to summon the witnesses of the charge-sheet to prove the police papers. Despite applications being filed to summon persons who were not shown as witnesses to the charge-sheet, the Trial Court repeatedly rejected the said applications in 2006 and again in 2008 on the flimsy grounds that were not named in the charge-sheet or that the Public Prosecutor had not filed such application in gross violation of Section 311 Code of Criminal Procedure.
Accused-Respondent No. 2 is thus convicted Under Sections 302 and 307 Indian Penal Code for the murders of Daroga Rai and Rajendra Rai and also for attempt to murder of injured Smt. Devi - The Secretary, Department of Home, State of Bihar and the Director General of Police, Bihar are directed to ensure that Prabhunath Singh (Respondent No. 2) is taken into custody forthwith and produced before this Court to be heard on the question of sentence in view of Section 235 Code of Criminal Procedure.
Let the matter be listed again on 1st September, 2023. On the said date, Accused Prabhunath Singh (Respondent No. 2) be produced before this Court in custody for the aforesaid purpose.
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