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In WRIT TAX No. 397 of 2023 – ALL HC - Merely calling a registered firm 'bogus' does not justify cancellation of GST registration, says Allahabad High Court
Justice Piyush Agrawal [19-05-2023]

Read Order: M/s Star Metal Company vs. Additional Commissioner and Ors.


Chahat Varma


New Delhi, June 1, 2023: The Allahabad High Court has ruled that the cancellation of a GST registration that has been granted, requires the respondent authority to bear a substantial burden of proof proving the existence of facts that warrant such cancellation. According to Section 29(2) of the Goods and Services Act, a registration can only be cancelled if one of the five specified statutory conditions are met. Merely describing the registered firm as ‘bogus’ does not justify the cancellation of the registration.


The present writ petition was filed challenging the order dated 01.12.2020 passed by the respondent no. 2 cancelling the GST registration of the petitioner, order dated 19.03.2021 passed by the respondent no. 2 rejecting the petitioner's revocation application for cancellation of the registration as well as the order dated 14.10.2022 passed by the respondent no. 1 confirming the rejection of the revocation application of the petitioner.


The court observed that admittedly, the registration of the petitioner was cancelled on the basis of the survey with the report that the disclosed business place of the firm was not found and therefore, the firm was bogus.


The court placed reliance on Apparent Marketing Private Limited v. State of U.P. and Others [LQ/AllHC/2022/8401], wherein it was held that, “cancellation of registration has serious consequences. It takes away the fundamental right of a citizen etc. to engage in a lawful business activity……Though the notice for cancellation of registration may not be placed on a high pedestal of a jurisdictional notice, at the same time, unless the essential ingredients necessary for issuance of such notice had been specified therein at the initial stage itself, the authorities cannot be permitted to have margin or option to specify and/or improve the charge later.”


Consequently, the court quashed the orders dated 01.12.2020, 19.03.2021 and 14.10.2022.


In CRL. R.C. 297 & 305 of 2020- MADR HC- One cannot legally represent a firm in an individual capacity without authorisation, says Madras High Court while setting aside trial court order holding the accused guilty of offence under Sec 138 of NI Act
Justice G.Jayachandran [18-05-2023]

Read More: M.C. Baby v Sastha Home Tech


Simran Singh


New Delhi, May 29, 2023: The Madras High Court, while reiterating the settled position of law by way of multiple judicial decisions, said that in the absence of the required documents of the partnership deed along with authorisation to represent the partnership firm, the Courts below could not presume that the respondent was a partner who was duly authorised to represent the said firm. The High Court, accordingly allowed the revision petitions and set aside the impugned judgment passed by the Metropolitan Magistrate as well as the Additional Sessions Judge



In the matter at hand, two revision petitions were preferred by the accused who was held guilty of offence under Section 138 of Negotiable Instruments Act, 1881 (NI Act) by Metropolitan Magistrate, Saidapet and the same on appeal was confirmed by Additional Sessions Judge, Chennai.



Issue for consideration before the Court was whether a complaint under Section 138 of the NI Act by a partner of the firm without authorisation was maintainable.


The accused being a railways contractor had placed orders for supply of materials which were delivered to the construction site by the respondents. When the respondents demanded repayment of dues, the accused gave two cheques, dated 31-12-2004 for INR 7, 41, 923 and another dated 31-03-2005 for INR 14,20,235 to partially discharge the dues. Both the cheques were bounced on 27-06-2005 and 08-08-2005, respectively for the reason ‘insufficient funds’. The respondent therefore, had caused statutory notice on 27-07-2005 and 04-09-2005, respectively calling upon the accused to make payment of the cheque amount within 15 days. It was alleged that despite the receipt of the notice, the accused neither paid the cheque amount nor replied within 15 days. Hence the respondent had filed a case before the Metropolitan Magistrate, Saidapet.



The accused contested the case on the premise that the cheques were issued as security for the goods supplied. Though payment made, the cheques were presented and misused by the respondents. More so, no statutory notice was served upon the accused and there was no proof that the respondent was authorised to prefer the complaint against the accused. Hence, the complaints were alleged to be not maintainable.



Both the Courts below had held that the signatures on the cheques were not disputed and the business relationship was also admitted. There was no rebuttal evidence led by the accused to shift the burden of presumption. Thus, the complaints were held to be maintainable.



However, the Bench stated that the Metropolitan Magistrate had failed to address the plea of maintainability of the complaint by the respondent without the authorisation of partners. Further the Additional Sessions Judge failed to not only apply the correct law, but also erred in misquoting the facts while considering the plea of maintainability. The Court was of the view that there was no record to show that M/s Sastha Home Tech was a partnership firm and the respondent was one of the partner of the firm. It was noted that during the cross examination, the respondent had stated to have filed the partnership deed, which later he retracted and said that he will produce the required document.  However, the required documents were neither produced before the Metropolitan Magistrate nor before the Additional Sessions Judge.



The Court scrutinised the complaints, and found that the respondent had signed the complaint not on behalf of M/s Sastha Home Tech, but as an individual which was contrary to the observations made by the Additional Sessions in its order, hence perverse.



The Bench while relying on BSI Limited v. Gift Holdings Private Limited stated that in the absence of the required documents of the partnership deed along with authorisation to represent the partnership firm, the Court could not presume that the responder was a partner who was duly authorised to represent the said firm.

In  CRM-M-11528-2023-PUNJ HC- P&H HC refuses to grant bail to man allegedly indulged in trading drugs of commercial quantity as he didn't state anything to discharge burden put by sec.37 of NDPS Act
Justice Anoop Chitkara [15-05-2023]

Read Order:Rahul Vs. State Of Haryana 


Tulip Kanth


Chandigarh, May 16, 2023: The Punjab and Haryana High Court has refused to grant bail to the petitioner-accused apprehending arrest for violating the provisions of Narcotics Drugs and Psychotropic Substances Act, 1985  on the allegations of indulging in drug trade and selling 900 tablets containing Alprazolam to another man from which the police had seized the same.


“The burden is on the petitioner to satisfy the twin conditions put in place by the Legislature under Section 37 of the NDPS Act”, the Bench said.


In the bail petition, the accused declared that he had no criminal antecedents and the petitioner’s counsel contended that the pre-trial incarceration would cause an irreversible injustice to the petitioner and family.


The Bench noted that the quantity allegedly involved in this case was commercial and the rigours of S. 37 of the NDPS Act would apply in the case. 


The Bench took note of the fact that the police had collected sufficient evidence connecting the petitioner with the offence. The court was not dealing with a regular bail but an anticipatory bail involving a commercial quantity of intoxicants.


As per the Bench, the  grounds taken in the bail petition did not shift the burden placed by the legislature on the accused under S. 37 of the NDPS Act. The petitioner had not stated anything to discharge the burden put by the stringent conditions placed in the statute by the legislature under section 37. 


The High Court also referred to the judgment of the Top Court in Jai Prakash Singh v. State of Bihar and another.


Thus, the Bench concluded that the petitioner had failed to make a case for bail at this stage and dismissed the petition.


In CWP-8792-2016 (O & M)-PUNJ HC- P&H HC dismisses challenge against Collector’s order whereby eviction petition was decreed in favour of Gram Panchayat as petitioner failed to protest against tenability of demarcation report
Justices Sureshwar Thakur & Kuldeep Tiwari [12-05-2023]

Read Order: Nagender Singh (since deceased) through his LRs. Versus State of Haryana & Others


Tulip Kanth


Chandigarh, May 15, 2023: The Punjab and Haryana High Court has dismissed a writ petition challenging an eviction Order after noting that despite several opportunities granted to the petitioner to produce evidence contrary to the one as comprised against him in the demarcation report, he failed to adduce such evidence.


The factual background of this case was such that the Gram Panchayat Bhonds  in District Gurgaon, through a Panchayat Member  instituted a petition under under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961, against a purported encroacher, upon, the panchayat land, one Nagendar Singh. Through a decision made thereon, the Assistant Collector decreed the said petition for eviction.


This decision  resulted in the aggrieved therefrom instituting thereagainst an appeal before the competent Appellate Authority concerned. However, the competent Appellate Authority concerned, through a decision upon, appeal declined the espoused relief to the appellant and affirmed the verdict aswas previously drawn by the Assistant Collector.


The aggrieved Nagender Singh-petitioner herein, preferred a revision petition but the same was declined. This led the petitioner to institute a petition before the High Court.


The petitioner was alleged to raise a house on the disputed land which was evidently owned by the Gram Panchayat. The Orders revealed that the demarcation report was drawn in terms of the relevant rules and instructions.


The Division Bench of  Justice Sureshwar Thakur & Justice Kuldeep Tiwari noted the fact that there were gross abandonments and waivers by the petitioner herein, to adduce evidence, thus, dislodging the worth of the demarcation report, either through his making a protest against its tenability or through his subsequently asking for the summoning of the demarcating officer, so that elicitations are made from him, but suggestive that he has not drawn the same in consonance with the relevant rules and instructions.


As per the Bench, the effect of such waivers and abandonments, wasthat, the petitioner was deemed to have acquiesced to the validity of the drawing of the demarcation report, which became relied upon by the statutory authorities below.


Observing  that the petitioner cannot make any submission, that the concurrently made decrees of eviction against him, are flawed rather on the premise that the relevant demarcation report has not been drawn in consonance with the relevant rules and instructions.


Thus, without finding any merit in the petition, the Bench dismissed the same.



In MA No. 709 of 2022 – SC - The 2017 Guidelines for designating Senior Advocate: Judgment modified by Supreme Court
Justices Sanjay Kishan Kaul, Ahsanuddin Amanullah & Aravind Kumar [12-05-2023]

Read Order: Indira Jaising v Supreme Court of India



Simran Singh



New Delhi, May 13, 2023: While exercising its civil original jurisdiction, the Full Bench of Justice Sanjay Kishan Kaul, Justice Ahsanuddin Amanullah and Justice Aravind Kumar passed directions in an application which had sought modifications in the guidelines regulating the conferment of designation of Senior Advocate as laid down in its 2017 judgment Indira Jaisingh v Supreme Court of India.



“We only hope that our endeavour to simplify some aspects of the process results in the designation of more meritorious candidates. The process of improvement is a continuous one and we learn from every experience. This is one more step in the fine-tuning of this exercise and we hope it achieves the purpose. The ultimate objective is to provide better assistance to litigants and the Courts.”



In the case at hand, the issue pertained to the manner of the exercise conducted for designation of Senior Advocates and certain aspects of the 2017 judgment which Court only attempted to fine-tune and modify instead of carrying out a review or reference.



“An endeavour was made by the Union of India to reopen the 2017 Judgment itself. That however is not our remit in the present applications. We are not at the stage of a review or a reference of the matter to a larger Bench. We are only on the aspect of fine-tuning what has been laid down by this Court in the 2017 Judgment”



Voting By Secret Ballot


The method of designation prior to the 2017 Judgment, was by a discussion followed by voting by secret ballot from Judges of the Full Court. The percentage of approval required ordinarily varied from 2/3rd to 50%. In the 2017 Judgment, it was noticed that a secret ballot was supposed to be a rarity rather than the norm and may be used only under certain unavoidable circumstances.



The Court observed that the constitution of a Permanent Committee, reliance on certain objective criteria for assessment, and final decision through voting were the central aspects of the 2017 Judgment which the Court did not consider to review but only modify the criteria through experiences gained over a period of time.  "While it is alleged that voting by secret ballot may not always subserve the interests of transparency, in practice judges may be reluctant to put forth their views openly. This is especially the case where the comments of a judge can have a deleterious effect on the advocate’s practice.” Thus, the Court found merit in the contention that voting by secret ballot should not be the rule but an exception. In case it had to be resorted to, the reasons for the same should be recorded.



Cut-off marks:



A grievance was raised that while the cut-off marks may have already been decided, the same were neither published in advance nor communicated to those applying for senior designation, thereby leading to speculation at the Bar. It was thus prayed that the cut-off marks be released in advance.  However, the Court was of the view that it would be difficult to prescribe cut-off marks in advance.



“As designation is really an honour to be conferred, there can only be a limited number of successful applicants in one go. A decision on the number of successful applicants must be left to the Permanent Committee, depending on the total number of applicants, the marks obtained by them, and the number of people that can be invited for the personal interview.”






The Points assigned for publications



The Court stated that the allocation of 15 points for publication was high, and thus was deemed fit to reduce the available points under this category to 5 points. “Most practicing advocates find very little time to write academic articles. In any case, academic publications require a different aptitude. However, given that Senior Advocates are expected to make nuanced and sophisticated submissions, academic knowledge of the law is an important prerequisite.” Thus, stated that the said criteria would not only continue but expand what should fall under this criteria, while reducing the points of the same.



The Court stated that confining these criteria merely to the authorship of academic articles would not be enough, instead, it should also include teaching assignments or guest courses delivered by advocates at law schools which would be a more holistic reflection of the advocate’s ability to contribute to the critical development of law which also showed their interest in guiding and helping their peers at the Bar.



The Bench referred to the system adopted by the Singapore Bar where the designation of Senior Counsel was recognized as an elite group of advocates, with top tier advocacy skills, professional integrity, and knowledge of law. “Senior Counsels have a duty to leading and be an example to the rest of the Bar, especially younger members. They are also required to contribute to academic teaching, writing, and research, and to the process of continuing legal education.” Thus, the Court left it to the Permanent Committee to decide on the manner of assigning points under this category, including the possibility of taking external assistance to gauge the quality of publications which could be through other Senior Advocates or academics.



Account of Various Parameters


This category contemplated reported and unreported judgements, pro bono work, and the domain expertise of an applicant under various branches of law. The court deemed it fit to enhance the number of points under this category by 10 points, having deducted the same from publications and simultaneously increased the scope of this category. The Bench clarified that it was not the Order but the judgments that had to be considered. “In recent times, and particularly in the Supreme Court, the number of advocates present for a matter are very high. However, that is not ipso facto reflective of the assistance that they are providing to the Court. A matter may be argued by a counsel who may be assisted by others, including an Advocate-on-Record.” Thus, as assessment would have to be carried out in enquiring into the role played by the advocate in the matter they have appeared in with their role specified by them in their application and stated that merely looking into the number of appearance would not be enough.



The Court believed that the same would also take care of any perceived disadvantages arising due to the larger number of appearances by Government Counsels, as compared to Counsel who were engaged in private work. Further, the quality of synopsis filed in Court ought to be considered which could be a useful indicator for assessing the assistance rendered by an advocate to the Court. Candidates should thus be permitted to submit five of their best synopses for evaluation with their applications.



The Court turning to another aspect of ‘specialised Tribunals’ stated that several advocates have concentrated their practice before such tribunals which has led to the opening up of various specialisations. Often appeals from those Tribunals lie to this Court and, thus, such advocates also appear before this Court, although the frequency of their appearances may be less. Specialised lawyers with domain expertise should be permitted to concentrate on their fields and not be deprived of the opportunity of being designated as Senior Advocates. Thus, in the case of such advocates, a concession is required to be given with regards to the number of appearances. “This category of advocates and their expertise is also essential for the advancement of all specialized fields of law.”



The Court went on to state that due consideration should be given in the interest of diversity, particularly with respect to gender and first-generation lawyers. This would encourage meritorious advocates who will come into the field knowing that there was scope to rise to the top. “The profession has seen a paradigm shift over a period of time, particularly with the advent of newer law schools such as National Law Universities. The legal profession is no longer considered as a family profession. Instead, there are newer entrants from all parts of the country and with different backgrounds. Such newcomers must be encouraged.”



Personal Interview



The Court was of the view that an interview process would allow for a more personal and in-depth examination of the candidate which would enable a more holistic assessment, particularly as the Senior Advocate designation was an honour conferred to exceptional advocates who was also required to be very articulate and precise within a given timeframe. Thus, restricted the number of interviews to the appropriate amount as deemed feasible by the Permanent Committee, keeping in mind the number of Senior Advocates to be designated at a given time. The Bench was neither inclined to do away with or to reduce the marks assigned under this category.



Other General Aspect



The Court was of the view that the process should be carried out at least once a year so that applications do not accumulate. “In this respect, some disturbing instances have emerged from certain High Courts where the exercise of designation has not been undertaken for many years. As a consequence, meritorious advocates at the relevant time lose out on the opportunity of being considered for designation.”



The Court reiterated the observation made in the 2017 judgment that the power of suo motu designation by the Full Court was not something that was being taken away. It further clarified that the pending application for designation would not be considered under the old norms. “The exercise to be undertaken now would have to include these existing applications. However, such candidates can be given the time to update or replace their applications in light of the norms laid down by the present judgment”


In ITA NO.302/MUM/2023- ITAT- Rule 128 requirement for Form 67 submission in Foreign Tax Credit claim deemed directory, not mandatory; ITAT (Mumbai) holds that assessee can file Form 67 before completion of the assessment
Member S. Rifaur Rahman (Accountant) [05-04-2023]

Read Order: Ganesh Anandrao Ingulkar v. Assistant Director of Income-tax


LE Correspondent


Mumbai, May 11, 2023: The Mumbai bench of the Income Tax Appellate Tribunal has allowed the claim of the assessee, holding that that assessee can file Form– 67 before completion of the assessment and the assessee was entitled to Foreign Tax Credit (FTC).


In the present case, the assessee had filed Form–67 at the time of filing revised return of income and not at the time of original return of income. The CIT(a) had upheld the order of the Assessing Officer (AO), noting that since the assessee had failed to file the return of income for A.Y. 2019-20 as well as Form 67 within the due date of filing of return of income, the claim of FTC had rightly been disallowed.


The Tribunal placed reliance on Sonakshi Sinha v. CIT [LQ/ITAT/2022/4056], wherein the Coordinate Bench has observed that one of the requirements of Rule128 for claiming FTC is that Form 67 is to be submitted by assessee before filing of the returns and that this requirement cannot be treated as mandatory, rather it is directory in nature. This is because, Rule 128(9) does not provide for disallowance of FTC in case of delay in filing Form No. 67. The bench further observed that it is well settled that while laying down a particular procedure, if no negative or adverse consequences are contemplated for non-adherence to such procedure, the relevant provision is normally not taken to be mandatory and is considered to be purely directory.



In CWP-10037-2023-PUNJ HC- P&H HC asks Maharishi Dayanand University to consider Law student’s plea for issuance of Admit Card which was denied to him on account of shortage of attendance & in light of fact that he was in custody 
Justice Vikas Bahl [09-05-2023]

Read Order:David Chandekar v. Maharishi Dayanand University And Ors 


Tulip Kanth


Chandigarh, May 10, 2023: The Punjab and Haryana High Court has asked Maharishi Dayanand University to look into a law student’s plea seeking directions to the respondent-University to issue Roll Number/Admit Card for 6th semester examination of 3 year LLB Course, within one week.


Justice Vikas Bahl passed such a direction while considering a Civil Writ Petition filed under Article 226 of the Constitution of India for issuance of a writ in the nature of mandamus directing the respondents to issue Roll Number/Admit Card for 6th semester examination of 3 year LLB Course so that he may take part in the Practical as well as in Theoretical Examination scheduled to be conducted from May 9, 2023 to June 12, 2023.


The admit card had been denied on account of shortage of attendance and the fact that the petitioner was in custody.


The petitioner submitted that the writ petition could be treated as a representation and the first respondent-University could consider the same as expeditiously as possible. It was also pleaded that if the first respondent finds merit in the same then petitioner may be permitted to give 6th semester examination from the date the said decision is taken.


The University’s counsel assured the Court that every endeavour would be made by  it to consider the writ petition as a representation within a period of one week. It was also submitted before the Bench that if any merit is found in the plea raised by the petitioner, then necessary action would be taken in pursuance of the same.


Thus, considering such facts and circumstances, the Bench disposed of the Civil Writ Petition with directions to the University to consider the present writ petition as a representation within a period of one week.


“In case, respondent No.1 finds merit in the plea raised by the petitioner, then to take necessary action, in accordance with law, as expeditiously as possible”,the Bench ordered.


In ITA No.586/Hyd/2022-ITAT- Without affording any opportunity to the Assessing officer, CITA(A) cannot accept additional evidences: ITAT (Hyderabad)
Members R.K. Panda (Accountant) and Laliet Kumar (Judicial) [27-03-2023]

Read Order: Dy. C. I. T (International Taxation) – I v. Nandita Pathak Hyderabad


Chahat Varma

New Delhi, April 25, 2023: The Income Tax Appellate Tribunal (Hyderabad) has held that since the assessee had not filed the documentary evidence before the AO to explain the source of the investment in foreign immovable property as called for by the AO, therefore, the learned CIT (A) was duty bound to give an opportunity to the AO to verify the documents filed by the assessee during the course of appeal proceedings.

Facts in brief was that the assessee was an individual, employed with Amazon Development Centre (India) Pvt. Ltd. Her case was selected for limited scrutiny through CASS to verify ‘Large Investment in foreign assets-immovable property’. The assessee in her response had submitted that she jointly owns one house property in US with her spouse which was let out during the year. Since the investment towards the property was jointly made by her and her spouse in the ratio of 50:50, 50%, the house property income (after considering the possible deductions) has been accordingly offered for tax in India. Balance 50% of the house property income has been offered in the hands of her spouse. In appeal, CIT (A) on the basis of certain documents filed by the assessee evidencing the purchase of foreign asset in 2006, deleted the addition made by the AO.

The Tribunal was of the view that the CIT (A) without affording any opportunity to the AO, could not have accepted the additional evidences filed by the assessee and deleted the addition, and there was a clear violation of the provisions of Rule 46A (3) of the Income Tax Rules.

In CR.A. No. 1910 of 2010-SC- Defence counsel’s suggestion to witness in cross-examination, if found to be incriminating in nature, would bind accused: Supreme Court
Justices Sudhanshu Dhulia & J.B. Pardiwala [29-03-2023]



Tulip Kanth


New Delhi, April 5, 2023: While refusing to agree with the submission that an answer by a witness to a suggestion made by the defence counsel in the cross- examination does not deserve any value if it incriminates the accused in any manner, the Supreme Court has clarified that any concession or admission of a fact by a defence counsel would definitely be binding on his client, except the concession on the point of law. 


Referring to the judgment in Rakesh Kumar alias Babli v. State of Haryana, the Division Bench of Justice Sudhanshu Dhulia and Justice J.B. Pardiwala said, “Thus, from the above it is evident that the suggestion made by the defence counsel to a witness in the cross-examination if found to be incriminating in nature in any manner would definitely bind the accused and the accused cannot get away on the plea that his counsel had no implied authority to make suggestions in the nature of admissions against his client.”


The case of the prosecution was that on the fateful day of the incident the first informant(first witness), was chatting with his friend Abbas Baig (deceased). At that time, while the second appellant accompanied by few other individuals was passing by the side, he was accosted by the deceased Abbas. There was some verbal altercation between the two. 


After sometime the first and second appellants and the other two co-accused who came to be acquitted by the Trial Court reached at the spot. A fight ensued in which the first informant was assaulted on his head which was alleged to have been laid by the first appellant. 


The first informant suffered a bleeding injury on his head. Thereafter, a severe assault was laid on the deceased by means of a sickle and sword and he ultimately succumbed to such injuries.

This appeal by special leave at the instance of two convict persons was directed against the judgment of the Bombay High Court affirming the order of conviction passed by the Additional Sessions Judge whereby both the appellants were convicted for the offence under Section 302 read with Section 34 of the Indian Penal Code, 1860  and sentencing them to suffer life imprisonment.


Enumerating the judicially evolved principles for appreciation of ocular evidence in a criminal case, the Bench opined that when eye-witness is examined at length it is quite possible for him to make some discrepancies but courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.


The Bench also highlighted the fact that the presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition. The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded, the Bench added.


Further, the Bench also observed that suggestions made to the witness by the defence counsel and the reply to such suggestions would definitely form part of the evidence and can be relied upon by the Court along with other evidence on record to determine the guilt of the accused.


On the facts of the case, the Bench opined that in the cross-examination of the third witness, a suggestion was put to him that he had inquired with the first witness as to what had happened and the first witness in turn narrated the incident to third witness. This suggestion put by the defence counsel to the third witness was answered in the affirmative. This part of the evidence of the  third witness was corroborated by the evidence of the first witness.


As there was no dispute that the death of the deceased occurred due to culpable homicide and not due to accident or suicide, the Bench had to consider whether the incident came within any of the exceptions indicated in Section 300 of the Code.


Noting that the  the sine qua non for the application of an Exception to Section 300 always is that it is a case of murder but the accused claims the benefit of the Exception to bring it out of that Section and to make it a case of culpable homicide not amounting to murder, the Bench said, “On a plain reading of Exception 4, it appears that the help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight, (c) without the offenders having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found.”


Having regard to the nature of the injuries caused by dangerous weapons like sickle and sword which were applied on the vital part of the body, the Bench came to the conclusion that it was a case of Section 302 of the IPC.


Referring to its judgment in Rajwant Singh v. State of Kerala  and considering the fact that the appellants herein inflicted as many as nine blows with a dangerous weapon on the deceased who was unarmed and was helpless, the Top Court said, “For cases to fall within clause (3) of Section 300 of the IPC, it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature.”


Thus, dismissing the appeal and noting that the accused-appellants were ordered to be released on bail pending the final hearing of the present appeal, the Bench cancelled the bail bonds and ordered both the appellants to surrender before the Trial Court.


In CRA-S-763-2023-PUNJ HC- P&H grants bail to first-time offender in SC/ST Act case, provides opportunity to course-correct
Justice Anoop Chitkara [20-03-2023]



LE Correspondent


Chandigarh, April 1, 2023: Referring to the judgment of the Top Court in Gurbaksh Singh Sibbia v State of Punjab wherein it has been observed that the bail decision must enter the cumulative effect of the variety of circumstances justifying the grant or refusal of bail, the  Punjab and Haryana High Court has allowed an appeal under section 14-A of Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, 1989 of the accused challenging the dismissal of his bail application.

Justice Anoop Chitkara opined that the appellant made a case for bail in the instant case. 


The appellant had filed a bail application before the Additional Sessions Judge, which was dismissed on March 1, 2023.  The allegations were of abusing the people belonging to the scheduled castes by using the derogatory words prohibited under the Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, 1989. 

The Counsel for the appellant submitted that he would have no objection in case any stringent conditions this Court might put upon the appellant. The appellant’s contention was  that the custodial investigation would serve no purpose whatsoever, and the pre-trial incarceration would cause an irreversible injustice to the appellant and family. 


The State as well as counsel for the complainant opposed the bail. 


After considering the submissions from both the sides, the Court noted that on prima facie analysis of the nature of allegations and other factors peculiar to this case, there would be no justifiability for custodial or pretrial incarceration at this stage.


 Furthermore, the appellant was a first offender, and one of the relevant factors would be to provide an opportunity to course-correct. 


The Bench referred to the judgment of the Supreme Court in Dataram Singh v State of Uttar Pradesh, wherein it was held that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously, compassionately, and in a humane manner. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory. 


In view of the above, the Court without commenting on the case's merits and in the facts and circumstances peculiar to this case, observed that the appellant made  a case for bail, subject to certain  terms and conditions, which shall be over and above and irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.Hence, the appeal was accordingly allowed. 


In CRM-M-10926-2023-PUNJ HC- P&H HC grants bail to accused in NDPS case as contraband was not recovered from his conscious possession & he was confined in jail when recovery was effected
Justice Deepak Gupta [24-03-2023]



Mansimran Kaur


Chandigarh, March 25, 2023: The Punjab and Haryana High Court has allowed a petition seeking regular bail under Section 439 of Cr.P.C., while observing that at the time when recovery of 500 grams of heroine and the weapons were effected, the petitioner was confined in Bhondsi Jail, Gurgaon and recovery was not effected from the conscious possession of the petitioner.

A  Single-Judge Bench of Justice Deepak Gupta allowed the present petition instituted by the petitioner in the present case,  seeking regular bail by way of this petition preferred under Section 439 Cr.P.C in case  of FIR registered under Section 120-B of IPC; Section 21 & 29 of NDPS Act and Section 25 of the Arms Act .


After completion of investigation, report under Section 173 Cr.P.C. was filed against petitioner Mohit alias Dandi and co-accused Pawan Nehra, though remaining accused namely Tilak Singh, Harkesh and Vinod Yadav were  yet to be arrested.


After considering the submissions from both the sides, the Court noted,   It is admitted position that at the time when recovery of 500 grams of heroine and the weapons was effected, the petitioner was confined in Bhondsi Jail, Gurgaon and thus, recovery   was not effected from the conscious possession of the petitioner.


 Even as per investigation carried out by the police, it emerged that contraband and the weapons were arranged by co-accused Pawan Nehra, who also intentionally leaked the information to the police. In these circumstances, whether on the basis of conspiracy, petitioner can be assumed to be in conscious possession of the contraband will be a moot point and subject matter of trial, the Court noted. 


Further reference was placed on the case Maulana Mohd Amir Rashadi v. State of U.P. wherein it was held that merely on the basis of criminal antecedents, the claim of the petitioner for grant of bail cannot be rejected and that it is the duty of the Court to find out the role of the accused in the case, in which he has been charged and other circumstances such as possibility of his fleeing away from the jurisdiction of the Court etc.


Another reference was placed on the case Tofan Singh v. State of Tamil Nadu, wherein it was held, “a confessional statement recorded under Section 67 of NDPS Act will remain inadmissible in trial of an offence under the NDPS Act. In view of the said legal position, the bail cannot be denied to the petitioner simply on the basis of disclosure statements suffered by him or his co-accused”. 


Further reference was made to judgment in Surinder Kumar Khanna v. Intelligence Officer Directorate of Revenue Intelligence, wherein it was held that confessional statement of co-accused recorded under Section 67 of the NDPS Act cannot by itself be taken as substantive piece of evidence and can at best be used or utilized in order to lend assurance to Court.


Thus, having regard to all the aforesaid facts and circumstances, particularly, the role attributed to the petitioner in the crime to the effect that contraband was not recovered from his conscious possession and at that time he was confined in jail, hence, without commenting anything further on the merits of the case, the Court opined that the petitioner should be admitted to bail on his furnishing bail bonds/surety bonds to the satisfaction of the Trial Court/Duty Magistrate concerned. 


Hence, in view of the observations stated above, the petition was accordingly allowed.