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Indian Laws - Case Laws
Showing 361 to 380 of 750 Records
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2023 (7) TMI 1486
Seeking grant of bail - seizure of Ganja, contraband item - non-compliance of the provisions of the Section 50 of the Narcotic Drugs and Psychotropic Substances Act - right of the accused to be searched - HELD THAT:- Only one argument that is impressive is about not sending samples taken before Learned Magistrate to the Chemical Analyzer. The argument about “not taking samples at the spot but in the office, non- compliance of the provisions of Section 50 (so as to say not having appropriate words in the notice and Mr. Bhoite, Superintendent of Customs acted as Gazetted officer)” does not appeal to my conscience. Page no. 13 – is the details about the search and seizure.
No doubt, it is true that the Court of the JMFC was moved by making an application on 07/05/2021 at page no. 118. It also shows that learned Magistrate has taken the inventory and drawn few of the samples as mentioned in the para no. 14 of certificate on page no. 128 but fact remains that these samples were not sent to the Chemical Analyzer.
Ultimately when the evidence will be adduced during the trial, there will not be Chemical Analyzer report available on the basis of the analysis done about samples taken before learned Magistrate what will be available is Chemical Analyzer report about samples taken at the spot/office. In case of Simarnjit Singh s. State of Punjab [2023 (5) TMI 1389 - SUPREME COURT], the Hon’ble Supreme Court has refused to accept analysis done on the basis of the samples taken at the spot and set aside the conviction.
Be that it may ultimately the trial will be conducted only on the basis of the evidence collected during investigation. So, this contention can not be accepted - the Applicant has made out the case for bail. The contraband seized is commercial quantity. Bar under Section 37 is lifted. Hence, the Applicant is deserves to release on bail.
Bail application allowed.
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2023 (7) TMI 1482
Conviction under Section 8(b) read with Section 15(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 - Seizure and disposal of narcotic substances - Compliance with procedural requirements under Section 52A of the NDPS Act - HELD THAT:- The memorandum of informer’s information dated 20.05.2010 exhibited under P-3 indicates signature of two witnesses, P.W.2 and P.W.6, both of them turned hostile. Though they admitted their signature it was clearly deposed that they were not present at the scene of occurrence. The Court below have wrongly construed the evidence, in fact these two witnesses were party to most of the exhibits running upto 13. Search warrant under Exhibit P-4 acknowledge the fact that procedure contemplated under the NDPS Act has not been followed. As noted, one of the witnesses to the seizure memo has not been examined while the other turned hostile. Both the witnesses to the arrest memo have not been examined.
The record would also indicate that an order was passed by the trial Judge permitting the prosecution to keep the seized materials within the police station, to be produced at a later point of time. This itself is a sufficient indication that the mandate of Section 52A has not been followed. There is no explanation either for non-production of the seized materials or the manner in which they are disposed of. No order passed by the Magistrate allowing the application, if any, filed under Section 52A of the NDPS Act. P.W.10, Executive Magistrate has deposed to the fact that he did not pass any order for the disposal of the narcotics substance allegedly seized. Similarly, P.W.12 who is Incharge of Malkhana also did not remember any such order having been passed.
Both the Courts have mechanically placed reliance on the FSL Report while taking the statement of P.W.11 as the gospel truth. The views expressed by him can at best be taken as opinion at least on certain aspects. There are too many material irregularities which create a serious doubt on the very case of the prosecution. On a proper analysis there are no hesitation in holding that the impugned judgments are liable to be set aside and the appellant is to be acquitted by rendering the benefit of doubt.
The conviction and sentence rendered by the Additional Sessions Judge, Special Court NDPS, Jaora, District Ratlam, Madhya Pradesh as confirmed by the High Court of Madhya Pradesh, stands set aside - appellant is acquitted of all the charges - application allowed.
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2023 (7) TMI 1479
Maintainability of this petition filed under section 482 of Cr.P.C. - Challenge to order refusing to stay the order passed u/s 14 of the SARFAESI Act, 2002 - this petition has been filed against the order passed by the learned Chief Metropolitan Magistrate, Egmore dismissing the memo/application that was filed by the second petitioner to keep the order passed under section 14 of the SARFAESI Act in abeyance - HELD THAT:- Admittedly, the order that was passed under section 14 of the SARFAESI Act has not been put to challenge and that order passed in Crl.M.P.No.5693 of 2020, dated 22.12.2021 has become final.
Maintainability of this petition filed under section 482 of Cr.P.C. - HELD THAT:- The power under Section 482 of Cr.P.C., is a recognition of the inherent power of the High Court to make such orders as may be necessary to give effect to any order under the code. The subsequent clauses namely to prevent abuse of process of any Court or to secure the ends of justice, must be necessarily read ejusdem generis to the main requirement which is to give effect to any order passed under the Code of Criminal Procedure. Hence the matter that is placed before the Court under section 482 of Cr.P.C., must be relatable to the Code of Criminal Procedure and the consequences falling out of it.
In the case in hand, the subject matter of the challenge before this Court is not even the order passed by the learned Chief Metropolitan Magistrate, Egmore under section 14 of the SARFAESI Act. It is only the subsequent order passed by the Court below refusing to keep the order passed under section 14 of the Act in abeyance, that has been put to challenge in this Criminal Original Petition. Even assuming that the order passed under section 14 of the SARFAESI Act is put to challenge, the same will not be maintainable under section 482 of Cr.P.C. The order passed under the SARFAESI Act will not fall within the requirement of section 482 of Cr.P.C., and hence a petition challenging the said order cannot be maintained.
The Hon'ble Apex Court in UNITED BANK OF INDIA VERSUS SATYAWATI TONDON AND OTHERS [2010 (7) TMI 829 - SUPREME COURT] and KANAIYALAL LALCHAND SACHDEV VERSUS STATE OF MAHARASHTRA [2011 (2) TMI 1277 - SUPREME COURT], has deprecated the practice of entertaining any petition before the High Court as against the proceedings initiated under SARFAESI Act in view of the alternative remedy that is available under the SARFAESI Act. This is yet another reason as to why the petitioner cannot sustain the present petition before this Court.
Since this Court has held that the very petition that has been filed under section 482 of Cr.P.C., is not maintainable, it is not necessary for this Court to go into the other issues that have been raised on merits and regarding the administrative control of the administrator on the clusters belonging to the Reliance Capital Limited. It is not necessary to render any findings on these issues.
This Criminal Original Petition stands dismissed.
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2023 (7) TMI 1459
Enlargement on bail - twin conditions contained in Section 37 of the NDPS Act, 1985 satisfied or not - offence punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 - HELD THAT:- The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act.
There are merit in the contention of learned counsel for the respondent – State that the petitioner being not a resident of the State of Orissa, some stringent conditions are required to be imposed upon him.
While directing that the petitioner shall be released on bail on his furnishing bail bonds to the satisfaction of the Trial Court, it is directed that he shall be required to produce two local sureties before the Trial Court. The petitioner shall also appear before the Trial Court on every date of hearing.
SLP disposed off.
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2023 (7) TMI 1438
Vires of High Court's decision to prescribe a cut-off for the viva-voce - vires of Kerala State Higher Judicial Services Special Rules 1961 or not - Doctrine of legitimate expectation.
Whether the decision of the High Court was contrary to the 1961 Rules? - HELD THAT:- The broader constitutional issue which has been referred in Tej Prakash Pathak [2013 (3) TMI 768 - SUPREME COURT] would not merit decision on the facts of the present case. Clearly, the decision which was taken by the High Court was ultra vires Rule 2(c)(iii) as it stands. As a matter of fact, during the course of the hearing we have been apprised of the fact that the Rules have been subsequently amended in 2017 so as to prescribe a cut off of 35% marks in the viva-voce examination which however was not the prevailing legal position when the present process of selection was initiated on 30 September 2015.
In the present case, the statutory rules expressly provided that the select list would be drawn up on the basis of the aggregate of marks obtained in the written examination and the viva-voce. This was further elaborated in the scheme of examination which prescribed that there would be no cut off marks for the viva-voce. This position is also reflected in the notification of the High Court dated 30 September 2015. In this backdrop, we have come to the conclusion that the decision of the High Court suffered from its being ultra vires the 1961 Rules besides being manifestly arbitrary.
Legitimate Expectation - whether the High Court’s decision frustrates the legitimate expectation of the petitioners? - HELD THAT:- The basis of the doctrine of legitimate expectation in public law is founded on the principles of fairness and non-arbitrariness in government dealings with individuals. It recognizes that a public authority’s promise or past conduct will give rise to a legitimate expectation. The doctrine is premised on the notion that public authorities, while performing their public duties, ought to honor their promises or past practices. The legitimacy of an expectation can be inferred if it is rooted in law, custom, or established procedure - The doctrine of legitimate expectation emerged as a common law doctrine to guarantee procedural fairness and propriety in administrative actions. Legitimate expectation was developed by the courts to require a degree of procedural fairness by public authorities in their dealings with individuals. Denial of an assured benefit or advantage was accepted as a ground to challenge the decision of a public authority.
The doctrine of legitimate expectation does not impede or hinder the power of the public authorities to lay down a policy or withdraw it. The public authority has the discretion to exercise the full range of choices available within its executive power. The public authority often has to take into consideration diverse factors, concerns, and interests before arriving at a particular policy decision - Courts have to determine whether the public interest is compelling and sufficient to outweigh the legitimate expectation of the claimant. While performing a balancing exercise, courts have to often grapple with the issues of burden and standard of proof required to dislodge the claim of legitimate expectation.
It is evident that the doctrine of substantive legitimate expectation is entrenched in Indian administrative law subject to the limitations on its applicability in given factual situations. The development of Indian jurisprudence is keeping in line with the developments in the common law. The doctrine of substantive legitimate expectation can be successfully invoked by individuals to claim substantive benefits or entitlements based on an existing promise or practice of a public authority - It is merely an expectation to avail a benefit or relief based on an existing promise or practice. Although the decision by a public authority to deny legitimate expectation may be termed as arbitrary, unfair, or abuse of power, the validity of the decision itself can only be questioned on established principles of equality and non-arbitrariness under Article 14. In a nutshell, an individual who claims a benefit or entitlement based on the doctrine of legitimate expectation has to establish: (i) the legitimacy of the expectation; and (ii) that the denial of the legitimate expectation led to the violation of Article 14.
Relief which can be granted to the petitioners - HELD THAT:- The final list of successful candidates was issued on 6 March 2017. The candidates who have been selected have been working as District and Sessions Judges for about six years. In the meantime, all the petitioners who are before the Court have not functioned in judicial office. At this lapse of time, it may be difficult to direct either the unseating of the candidates who have performed their duties. Unseating them at this stage would be contrary to public interest since they have gained experience as judicial officers in the service of the State of Kerala - it would not be possible to direct the induction of the petitioners into the Higher Judicial Service at the present stage. Many of the petitioners would have since joined the Bar and would be in active practice. It needs to be clarified that their having failed to gain selection to the Higher Judicial Service in the process which was initiated on 30 September 2015, is not a reflection either on their merits or ability and shall not come in the way of their being considered for any other office, judicial or otherwise, in the future.
The principles of good administration require that the decisions of public authorities must withstand the test of consistency, transparency, and predictability to avoid being termed as arbitrary and violative of Article 14 - The decision of the High Court of Kerala to apply a minimum cut-off to the viva voce examination is contrary to Rule 2(c)(iii) of the 1961 Rules - The High Court’s decision to apply the minimum cut-off marks for the viva voce frustrates the substantive legitimate expectation of the petitioners. The decision is arbitrary and violative of Article 14.
Petition disposed off.
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2023 (7) TMI 1436
Criminal Conspiracy - Cheating fraud - allured by the principal accused (who happens to be the sister of the petitioner) to part with Rs. 45 lakh in all (paid partly in cash and partly by RTGS) for the purpose of establishment of a pharma company which would be engaged in the manufacture of Ayurvedic medicines - HELD THAT:- It is not one of those rare cases where the uncontroverted allegations appearing from the materials on record notwithstanding, it can successfully be contended that even no prima facie opinion can be formed pointing to commission of any offence by the petitioner. It is trite that the conspiracy to commit an offence is by itself distinct from the offence to do which the conspiracy is entered into and that such an offence, if actually committed, would be the subject-matter of a separate charge. The allegations that the petitioner was found counting the cash received by the principal accused from the second respondent in the presence of a listed witness and that she conspired with her sister, the principal accused, to cheat and defraud the second respondent, persuade to record that involvement of the petitioner, howsoever limited, cannot be ruled out at this stage and, therefore, the trial ought to be permitted to proceed and she obliged to stand trial.
The impugned judgment and order of the High Court dismissing the petition under section 482, Cr.P.C. - Appeal dismissed.
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2023 (7) TMI 1434
Seeking unconditional stay of the operation of an Award - making of the award was induced or effected by fraud or corruption - section 36(3) of The Arbitration and Conciliation Act, 1996 - HELD THAT:- The second proviso to section 36(3) is a significant addition made to the Act in 2021. Before the 2021 amendment, the award-debtor could seek stay of the operation of an award and pass such an order without imposing any conditions for stay of the award. Post-amendment, the award-debtor must however discharge the onerous task of showing, at least prima facie, that the award was induced by fraud or corruption.
Since the Act does not provide any clarity or explanation on the circumstances which would escalate matters to the level of fraud or corruption in the making of the award, it would be profitable to refer to a few decisions where the concepts of fraud and corruption were considered and dealt with.
In Venture Global Engineering vs. Satyam Computer Services Ltd. [2010 (8) TMI 1171 - SUPREME COURT], the Supreme Court considered a case for setting aside of an award under Explanation 1 to section 34(2)(b)(ii) which provides for the circumstances when an award would be in conflict with the public policy of India and includes the making of the award being induced or affected by fraud or corruption in one of the three sub-clauses under Explanation 1(i) - the Supreme Court in Venture Global held that concealment of relevant and material facts, which should have been disclosed before the arbitrator, would amount to an act of fraud. Russell on Arbitration, 23rd Edition, reiterates the position that an award will be obtained by fraud if the consequence of deliberate concealment is an award in favour of the concealing party.
Fraud and corruption - HELD THAT:- The discussion on the definition of fraud and corruption makes it evident that an award-debtor, who seeks unconditional stay of an award, must discharge the onus of establishing a case, prima facie, that the procedure resulting in the making of the award warrants undoing of the award altogether on grounds of fraud or corruption. The burden on the party is onerous; it is simply not enough to show that the party was kept in the dark on the appointment of the arbitrator or of the proceedings thereafter, that the party was not given adequate or effective hearing or even that there has been a breach of the principles of natural justice - The admitted facts in the present case do not breach the twin benchmarks of either fraud or corruption as contemplated under the second proviso to section 36(3) of the Act. The reason is as follows.
The impugned Award records that the Arbitrator allowed the claimant/respondent award-holder to disclose the photocopy of the document subject to the petitioners verifying the Progress Report from the copy disclosed and that the petitioner also filed a set of objections with regard to the relevance of the document which have been dealt with in the impugned Award. The Arbitrator has come to a specific finding with regard to the evidentiary value of the document.
This Court is not satisfied, prima facie, as to the existence of facts which warrant unconditional stay of the operation of the Award dated 22nd April, 2019 - the application is disposed of by directing the petitioner award-debtor to secure the awarded amount of Rs. 13,06,16,243.00/-with the Registrar, Original Side within a period of 4 weeks from date. 50% of the said amount shall be provided by way of cash deposit which shall be invested by the Registrar in an interest-bearing account with a reputed Bank and the remaining 50% by way of a Bank guarantee which the petitioner will furnish within the time directed.
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2023 (7) TMI 1421
Leave to appeal - Acquittal of accused for the commission of offences punishable under Sections 307, 506 read with Section 34 IPC - no direct evidence against any of the accused as the complainant and other eye witnesses turned hostile regarding the identity of the accused as culprits - HELD THAT:- It is accepted proposition of criminal jurisprudence that this Court has the power to unsettle the order of acquittal on the basis of re-appreciation of the evidence but the power is subject to the settled law that where two views are possible and out of the two, one points towards the innocence of the accused, the view which favour the accused should prevail over the other pointing towards the guilt of the accused.
There is no direct evidence against any of the respondents. The star witness of the prosecution i.e. PW-3-Anil (the injured) and the other eye witnesses has not supported the case of the prosecution and they were declared hostile. Moreover, there is no charge against the respondents under Sections 25 and 27 of the Arms Act and the alleged weapon of offence recovered from respondent No.3-Rahul was infact recovered during the investigation of FIR No.496 of 2017 registered at Police Station Ganaur and he is acquitted in the abovesaid FIR by learned JMIC, Ganaur vide judgment dated 01.10.2018 - Also, there is no evidence as to how and when the weapons recovered in other FIR were taken into possession in this FIR and further sent to FSL for comparison, in the absence of the link evidence the learned trial Court has rightly acquitted the respondents.
The view taken by the learned trial Court is reasonable and logical. There is no perversity in the finding of acquittal. In view of the fact that presumption of innocence of accused further gets entrenched and fortified on his acquittal by the trial Court, there are no ground to interfere in the findings of the learned trial Court. As such, there is no merit in the present application and the leave to appeal is declined.
Main appeal also dismissed.
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2023 (7) TMI 1416
Murder - Rejection of application seeking leave to appeal - the prosecution case rested on three eye-witnesses’ accounts - HELD THAT:- It is observed that no doubt the judgment and order of the High Court appears a bit cryptic but that by itself need not be a ground to set aside the order and remit the matter to the High Court, particularly, when we have the relevant record to assess the merit of the prosecution case. More so, because the incident is of the year 1987 and the appeal has remained pending since more than a decade. In such circumstances, if we remit the matter to the High Court only to rewrite the judgment, it would be travesty of justice.
It is trite law that in an appeal against acquittal, the power of the appellate court to reappreciate evidence and come to its own conclusion is not circumscribed by any limitation. But it is equally settled that the appellate court must not interfere with an order of acquittal merely because a contrary view is permissible, particularly, where the view taken by the trial court is a plausible view based on proper appreciation of evidence and is not vitiated by ignorance/misreading of relevant evidence on record - What is important is that neither PW3 nor PW6 could identify any of the three accused. They did not depose that the three policemen involved in the crime were those who were facing trial. Thus, there is no infirmity, much less perversity, in the view taken by the trial court that the testimony of PW-3 and PW-6 is not of much help to the prosecution qua the three accused facing trial.
Adverting to the proven circumstances, what transpires is that the witnesses are consistent that there was a police action on that fateful night. Assuming that it is true that in the night there was an exchange of fire between men in uniform and members of the public, but there is no reliable evidence that the exchange of fire was with a view to kill. Moreover, the deceased did not die of a rifle bullet injury. Rather, he died from a .12 bore gunshot which could not be ascribed to rifles issued to the accused persons. Therefore, even if empties of rifle cartridges relatable to service rifles issued to the accused were found at the spot, culpability of the accused persons in causing death of the deceased is not inferable - Here the circumstances found proved do not constitute a chain so far complete as to indicate that in all human probability it were the accused persons and no one else who committed the crime. In such a situation, there was no option for the trial court but to extend the benefit of doubt to the accused.
This is not a fit case to interfere with the order passed by the High Court and the matter remitted only for the High Court to rewrite the judgment as the same, in our view, would be an exercise in futility - The appeal is dismissed.
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2023 (7) TMI 1411
Power to review - error apparent on the face of record - Article 137 of the Constitution of India read with Rule 1 of Order XLVII of the Supreme Court Rules, 2013 - HELD THAT:- The power to review can be exercised only upon existence of any of the three conditions expressed therein. 'A mistake or an error apparent on the face of the record' is one of the conditions. It is only on this ground that review has been preferred. The above phrase has been consistently interpreted by authoritative pronouncement of this Court for decades. A three Judge Bench of this Court comprising of Hon’ble Sri S.R. Das, C.J., M. Hidayatullah and Sri K.C. Das Gupta, J.J. in the case of SATYANARAYAN LAXMINARAYAN HEGDE VERSUS MILLIKARJUN BHAVANAPPA TIRUMALE [1959 (9) TMI 52 - SUPREME COURT], discussed the scope of the phrase 'error apparent on the face of record'. The challenge before this Court in the said case was the judgment of the High Court on the ground whether it suffers from an error apparent on the face of the record. The High Court had issued a writ of certiorari and had quashed order of the Tribunal and restored that of the Mamlatdar.
A power to review cannot be exercised as an appellate power and has to be strictly confined to the scope and ambit of Order XLVII Rule 1 CPC. An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions.
There are no good ground to allow the review petitions - review petition dismissed.
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2023 (7) TMI 1409
Recovery of outstanding corporate tax dues from the personal assets of either of the petitioners - Lifting of corporate veil, to enforce the tax liability of a corporate entity on its directors and other functionaries etc. - Burden of proof on revenue authorities to justify piercing the corporate veil - HELD THAT:- Both generally (by way of a principle of law and also in the present facts), it is impermissible to allow the revenue authorities to rely on any assumption or presumption as to malfeasance or scam or fraud. Neither, the revival offered by BIFR was challenged nor there is any other material on record to reach such conclusion. Insofar as the conduct of the business upon revival is concerned, merely because statutory exemptions and benefits might have been claimed and those were declined would also not per se establish any malfeasance or misconduct or other conduct or omission attributable to the petitioners as may allow the recovery proceedings to be continued against them- for the dues of the company - Exemptions are claimed in accordance of perception of the claimant. Those are dealt with and decided by statutory bodies, on their own merits. Rejection of a claim may never be treated to be a fraudulent act, unless necessary facts are asserted and established. At present there is no allegation of any fraudulent claim to exemption made. The order dated 30.3.2005 only records, the claims, thus made by the company were rejected.
Fact of resignation by petitioners as directors of the company - HELD THAT:- Continuance as directors of a corporation may be prima-facie evidence as to who was responsible for running with the affairs of the corporation, yet, it may never be relevant or enough to reach a conclusion that therefore such person acted fraudulently or committed malfeasance or misconduct or other act or omission as may expose him/them to the exceptional liability of recovery of dues of the corporation, from their personal assets - The revenue failed to discharge its burden to prove special facts as may have exposed the petitioners to the impugned recovery proceedings. To that extent the facts found proven in the order dated 30.3.2005 as confirmed in appeal vide order dated 31.12.2007, are wholly extraneous to the issue. That discussion has already been made above. The corporate veil of the company, is found intact.
The petitioner is entitled to writ of Mandamus to restrain the respondent authorities from recovering the tax dues of the corporation M/s. Maharashtra Steel Ltd. For Assessment Years 1985-86 (U.P. & Central) to 1995-96 (U.P. & Central) from the personal assets of the petitioner -
The writ petition is thus allowed.
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2023 (7) TMI 1385
Condonation of delay of 52 days in filing appeal - sufficient explanation fro delay provided or not - parties were litigating with regard to the right over immovable properties - HELD THAT:- This Court in the case of COLLECTOR, LAND ACQUISITION VERSUS MST. KATIJI AND OTHERS [1987 (2) TMI 61 - SUPREME COURT] has held The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on `merits’. The expression `sufficient cause’ employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice-that being the life-purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court.
The above decision expressing the intention of justice oriented approach percolating down to all the courts was rendered nearly three decades ago but unfortunately the case on hand demonstrates the pervading insensitive approach, which apart from continuing the agony of the litigants concerned has also unnecessarily burdened the judicial hierarchy which after going through the entire process will have to set the clock back, at this distant point in time and prolong their agony. If only the court concerned had been sensitive to the justice oriented approach rather than the iron- cast technical approach, the litigation between the parties probably would have come to an end much earlier after decision on the merits of their rival contention - If that be the position, the very manner in which the lower Appellate Court has dismissed the appeal on the ground of delay when the delay was not inordinate is not justified and the High Court was also not justified in dismissing the appeal only on the ground that there was no question of law.
The delay in filing the appeal before the lower Appellate Court is condoned - Appeal disposed off.
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2023 (7) TMI 1384
Rejection of bail - conspiracy - allegations of recruiting cadres for the banned organisation, to import the provisions of Section 18B of Unlawful Activities (Prevention) Act, 1967 - HELD THAT:- It is not possible to form an opinion that there are reasonable grounds for believing that the accusation against the Appellant of committing or conspiring to commit terrorist act is prima facie true. The witness statements do not refer to any terrorist act alleged to have been committed by the Appellants. The copies of the letters in which the Appellants or any one of them have been referred, record only third-party response or reaction of the Appellants' activities contained in communications among different individuals. These have not been recovered from the Appellants. Hence, these communications or content thereof have weak probative value or quality. That being the position, neither the provisions of Section 18 nor 18B can be invoked against the Appellants, prima facie, at this stage. The association of the Appellants with the activities of the designated terrorist organisation is sought to be established through third party communications.
Moreover, actual involvement of the Appellants in any terrorist act has not surfaced from any of these communications. Nor there is any credible case of conspiracy to commit offences enumerated under chapters IV and VI of the 1967 Act. Mere participation in seminars by itself cannot constitute an offence under the bail-restricting Sections of the 1967 Act, with which they have been charged.
To bring the Appellants within the fold of Section 38 of the 1967 Act, the prosecution ought to have prima facie establish their association with intention to further the said organisation's terrorist activities. It is only when such intention to further the terrorist activities is established prima facie, Appellants could be brought within the fold of the offence relating to membership of a terrorist organisation. To bring within the scope of Section 38 of the 1967 Act, it would not be sufficient to demonstrate that one is an associate or someone who professes to be associated with a terrorist organisation. But there must be intention to further the activities of such organisation on the part of the person implicated under such provision. But the same line of reasoning in respect of membership of a terrorist organisation Under Section 20, ought to apply in respect of an alleged offender implicated in Section 38 of the 1967 Act. There must be evidence of there being intention to be involved in a terrorist act. So far as the Appellants are concerned, at this stage there is no such evidence which can be relied upon.
The appellant are directed to be released on bail in respect of the cases(s) out of which the present appeals arise, on such terms and conditions the Special Court may consider fit and proper, if the Appellants or any one of them are not wanted in respect of any other case - appeal allowed.
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2023 (7) TMI 1383
Rejection of bail - influencing certain citizens to swear false affidavits, which were used as a part of investigation - HELD THAT:- The consideration which weighed with the Court while passing the aforesaid order that the appellant is a lady has not changed. The fact that the offence alleged against her relates to the year 2002 and that the FIR pertains to documents which are sought to be presented or relied upon till the year 2012 has also not changed. The fact that the appellant was available for custodial interrogation for a period of seven days and thereafter she was in continuous judicial custody has also not changed - Another factor that needs to be taken into consideration is that after she was released on interim bail by this Court, she has admittedly not been called for investigation even on a single occasion.
Taking into consideration that most of the evidence in the present case are documentary evidence, which are already in possession of the Investigating Agency and, further, that the charge-sheet has been filed, it is found that she is entitled for bail.
Another factor that needs to be taken into consideration is that at the time of pronouncing the impugned order, the learned Judge, though noticing that on account of order of this Court dated 2nd September 2022 passed in Criminal Appeal No. 1417 and 1418 of 2022 the appellant was on interim bail, directed her to surrender immediately - it is not understood to as to what was the alarming urgency to direct the appellant to surrender immediately, particularly, when the appellant was enjoying the interim protection under the orders of this Court from 2nd September 2022.
The impugned order is quashed and set aside and the appeal is allowed - bail allowed.
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2023 (7) TMI 1374
Seeking grant of Regular bail - offences which have been charged are serious in nature affecting the society at large or not - HELD THAT:- This Court is of the opinion that, discretion is required to be exercised to enlarge the applicant on regular bail.
Without discussing the evidence in detail, this Court, prima facie, is of the opinion that, this is a fit case to exercise the discretion and enlarge the applicant on regular bail. Hence, present application is allowed and the applicant is ordered to be released on regular bail in connection with the FIR registered with DCB Police Station, Dist.Surat on executing personal bond of Rs.10,000/- with one surety of the like amount to the satisfaction of the learned Trial Court and subject to the conditions imposed - The Authorities will release the applicant only if the applicant is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the learned Lower Court having jurisdiction to try the case.
Bail application allowed.
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2023 (7) TMI 1371
Seeking grant of Regular bail - offences which have been charged are serious in nature affecting the society at large or not - HELD THAT:- This Court is of the opinion that, discretion is required to be exercised to enlarge the applicant on regular bail.
Without discussing the evidence in detail, this Court, prima facie, is of the opinion that, this is a fit case to exercise the discretion and enlarge the applicant on regular bail. Hence, present application is allowed and the applicant is ordered to be released on regular bail in connection with the FIR registered with DCB Police Station, Dist.Surat on executing personal bond of Rs.10,000/- with one surety of the like amount to the satisfaction of the learned Trial Court and subject to the conditions imposed - The Authorities will release the applicant only if the applicant is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the learned Lower Court having jurisdiction to try the case.
Bail application allowed.
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2023 (7) TMI 1368
Jurisdiction to entertain petition - Prayer for stay of the summoning of the petitioners, its Officers, Representatives and Managers by the Officers of Respondent Nos.2 - HELD THAT:- The objection taken by Respondent No.4 regarding jurisdiction to entertain the writ petition is ill founded inasmuch as the registration of the E.C.I.R. is consequent to the registration of the F.I.R. dated 15.04.2023 at Greater Noida, U.P. which is very much within the territorial jurisdiction of this Court. Based on the ratio laid down by the Apex Court in VIJAY MADANLAL CHOUDHARY & ORS. VERSUS UNION OF INDIA & ORS. [2022 (7) TMI 1316 - SUPREME COURT], the objection of Respondent No.4 to the territorial jurisdiction of this Court does not merit consideration and is, accordingly, overruled.
It is found that ex-facie the dispute is of civil in nature and has been given a colour of criminal nature. It is also found that Respondent No. 3, YEIDA has not made any attempt to institute civil proceedings against Petitioner No.2, except by lodging the present F.I.R. This action appears to be mala fide and unsustainable.
The petitioners have made out a case for grant of the interim as relief prayed for - List the case in the week commencing 28 August, 2023.
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2023 (7) TMI 1367
Initiation of mala fide criminal proceedings against financial institutions/lenders and their officers, representatives and managers, to somehow restrain them from pursuing recovery proceedings of their enforceable debts, and/or to compel them to make settlement of their dues - HELD THAT:- It is not deemed appropriate to permit the petitioners to approach the respective jurisdictional High Courts to challenge all four FIRs and the ECIR within two weeks from today, with a request to the respective High Courts to consider and decide the petitions expeditiously, not later than six months of their presentation.
All the petitions including contempt petition and pending applications, stand disposed of.
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2023 (7) TMI 1366
Contest to the grant of anticipatory bail to Respondent No. 2 - Forging documents for transferring ownership of land - appellant contended that the High Court acted on the erroneous assumption that the alleged 1996 GPA in favor of Respondent No. 2 is genuine - HELD THAT:- It goes without saying that the alleged offences of forging documents for transferring ownership of land worth crores of rupees are grave in nature. Hence, while it is extremely important to protect the personal liberty of a person, it is equally incumbent upon us to analyze the seriousness of the offence and determine if there is a need for custodial interrogation.
The relief of Anticipatory Bail is aimed at safeguarding individual rights. While it serves as a crucial tool to prevent the misuse of the power of arrest and protects innocent individuals from harassment, it also presents challenges in maintaining a delicate balance between individual rights and the interests of justice. The tight rope we must walk lies in striking a balance between safeguarding individual rights and protecting public interest. While the right to liberty and presumption of innocence are vital, the court must also consider the gravity of the offence, the impact on society, and the need for a fair and free investigation. The court's discretion in weighing these interests in the facts and circumstances of each individual case becomes crucial to ensure a just outcome.
The 2nd Respondent has so far not been able to show payment of any consideration to the Appellants in the year 1996. The original GPA, as we have noted on multiple occasions, is conspicuous by its absence. A certified copy of this GPA is said to have been relied upon to execute the disputed sale deed. It is difficult to understand or comprehend as to how a bona fide purchaser could pay crores of rupees as sale consideration to a person who neither possesses documents showing ownership and title nor has original GPA of the true owner(s) of the property being sold. The fact that the sale deed was allegedly executed without mentioning the PAN Number or without deducting TDS, underlines the dubious nature of this transaction.
It is immaterial that the genuineness of the 1996 GPA is already sub-judice before the Civil Court in the civil suits pending between the parties. The Appellants, owing to their age and residential status, cannot be expected to await indefinitely for the outcome of these civil proceedings. Regardless, the pendency of these cases does not estop the issues of forgery and fabrication being considered in the course of criminal investigation - In the peculiar facts and circumstances of this case, custodial interrogation of not only Respondent No. 2 but all other suspects is, therefore, imperative to unearth the truth. Joining the investigation with a protective umbrella provided by pre-arrest bail will render the exercise of eliciting the truth ineffective in such like case.
The impugned order dated 31st May, 2022 passed by the High Court granting pre-arrest bail to Respondent No. 2 is hereby set aside - Appeal allowed.
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2023 (7) TMI 1359
Seeking grant of Regular bail - commission of offences under Section 498A, 323/504/506 of the Indian Penal Code, 1860 (IPC) and Section 3 & 4 of the Dowry Prohibition Act - procedural requirements of Section 41A of the CrPC followed or not - HELD THAT:- The paramount considerations in cases where bail or anticipatory bail is claimed are the nature and gravity of the offence, the propensity or ability of the accused to influence evidence during investigation or interfere with the trial process by threatening or otherwise trying to influence the witnesses; the likelihood of the accused to flee from justice and other such considerations. During the trial, the court is always in control of the proceedings, and it is open for it to impose any condition which it deems necessary to ensure the accused’s presence and participation in the trial. The court must, in every case, be guided by these overarching principles.
In the present case, this Court is of the opinion that there are no startling features or elements that stand out or any exceptional fact disentitling the appellant to the grant of anticipatory bail. What is important is not that the matrimonial relationship soured almost before the couple could even settle down but whether allegations levelled against the appellant are true or partly true at this stage, which at best would be matters of conjecture, at least for this Court. However, what is a matter of record is that the time when the anticipatory bail was pending can be divided into two parts - firstly, when there was no protection afforded to him through any interim order (between April 2022 and 08.08.2022). Secondly, it was on 08.08.2022 that the High Court granted an order effectively directing the police not to arrest him during the pendency of his application under Section 438 of the CrPC.
Once the chargesheet was filed and there was no impediment, at least on the part of the accused, the court having regard to the nature of the offences, the allegations and the maximum sentence of the offences they were likely to carry, ought to have granted the bail as a matter of course. However, the court did not do so but mechanically rejected and, virtually, to rub salt in the wound directed the appellant to surrender and seek regular bail before the Trial Court. Therefore, in the opinion of this court, the High Court fell into error in adopting such a casual approach. The impugned order of rejecting the bail and directing the appellant, to surrender and later seek bail, therefore, cannot stand, and is hereby set aside.
The appellant is directed to be enlarged on bail subject to such terms and conditions that the Trial Court may impose - Appeal allowed.
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