In CRR-1357-2022-PUNJ HC- Non-receipt of FSL report and pending arrest of co-accused, are invalid reasons for granting extension for filing chargesheet beyond 180 days & thereby keeping NDPS accused in further detention: P&H HC
Justice Vikas Bahl [19-09-2022]

In CRR-1357-2022-PUNJ HC- Non-receipt of FSL report and pending arrest of co-accused, are invalid reasons for granting extension for filing chargesheet beyond 180 days & thereby keeping NDPS accused in further detention: P&H HC Justice Vikas Bahl [19-09-2022]

Recent Posts

In Criminal Revision No.1806 of 2022-PUNJ HC- Undertrial or juvenile, who is child in conflict with law, does not have any Fundamental Right or Statutory Right to higher education abroad: P&H HC
Justice Jasgurpreet Singh Puri [26-09-2022]

Read Order: Rxxxxx Dxxxxx v. State of Haryana

 

Monika Rahar

 

Chandigarh, September 28, 2022:  The High Court of Punjab and Haryana has held that an undertrial or a juvenile who is a child in conflict with the law does not have any Fundamental Right or Statutory Right to higher education abroad.

 

Further, the Bench of Justice Jasgurpreet Singh Puri held,  “However, right of the petitioner to travel abroad although is a valuable and basic human right apart from being an integral part of right to personal liberty can be curtailed according to procedure established by law in a reasonable, just and fair manner by considering the scheme, object and spirit of the Juvenile Justice (Care and Protection of Children) Act, 2015 especially Sections 90 and 91.

 

The present Revision Petition was filed for quashing the order of the Principal Magistrate, Juvenile Justice Board, Gurugram (JJB) declining the petitioner’s (child in conflict with the law (CCL)) application seeking permission to travel abroad for higher education. Also, under challenge was the order of the Additional Sessions Judge, Gurugram by which the appeal filed by the petitioner/CCL was dismissed. 

 

Essentially, the complainant’s friend died in an accident caused by the rash and negligent driving of a car by a juvenile driver at the instigation of the petitioner. Initially, an FIR was registered under Sections 279 and 304-A IPC. Later, Sections 304-II IPC and Section 199A of the Motor Vehicle Act were added and it was alleged that the petitioner instigated the car driver to drive the car at a fast speed. Thereafter, challan was presented under Sections 304-II read with Section 114 IPC.

 

The petitioner and the driver of the car being juveniles were proceeded under the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act). The petitioner moved an application before the JJB seeking renewal of his passport on the ground that he was selected to pursue a four-year graduation course in Columbia College in Chicago, the US commencing from September 2022 and in order to apply for a visa, he needed his passport renewed. This application was allowed. It was however made clear that such renewal would not confer any right upon the petitioner and he shall seek requisite permission from the Board in case he intends to travel abroad or visit some foreign country. 

 

Thereafter, while undertaking to appear before the Court through his counsel or natural guardian, the petitioner sought permission to travel abroad for pursuing Higher Education. This application was dismissed by the Principal Judge, Juvenile Justice Board, Gurugram, and so was the appeal filed by the petitioner. 

 

After hearing the parties, the Court framed two issues, the first of which was whether an undertrial or a juvenile who is a child in conflict with the law has any Fundamental or Statutory right to higher education abroad. The second issue was whether the impugned orders of the JJB as well as the Addl. Sessions Judge were in consonance with the scheme of the JJ Act especially Sections 90 and 91 of the Act.

 

With respect to the first issue, the Court opined that the Fundamental Right to education is available only for primary/elementary education in the light of Article 21-A of the Constitution of India which provides that the State shall provide free and compulsory education to all children of the age of 6 to 14 years. 

 

Further, the Bench opined that it is crystal clear that the right to higher education abroad is neither a Fundamental Right nor a Statutory right. 

 

From the aforesaid, it is therefore clear that a right to free and compulsory education to all the children of the age of 6 to 14 years is a Fundamental Right guaranted under Article 21-A of the Constitution of India. However, the issue involved in the present case pertains as to whether an undertrial or a juvenile who is in conflict with law has any Fundamental or Statutory right to 'higher education abroad' or not. From the aforesaid discussion, it is crystal clear that the right to higher education abroad is neither a Fundamental Right nor a Statutory right”, the Bench held. 

 

As far as the right to travel abroad was concerned, it was held by the Court to be a valuable as well as basic human right apart from being an integral part of the right to personal liberty. However, the Court added that such a right is not an absolute right.

 

Therefore, to answer the first issue, the Bench held, “... the petitioner does not have any Fundamental Right or Statutory Right to study abroad for higher education. He can be deprived of the right to travel abroad only in accordance with procedure established by law. It is incumbent upon the JJ Board to exercise power in a reasonable, just and fair manner by considering the scheme, object and spirit of JJ Act especially Sections 90 and 91.”

 

Regarding the second issue, the Court opined that the Additional Sessions Judge did not consider the effect of Sections 90 and 91 of the Act. The Court added that when at any stage the Committee or a Board records its satisfaction that the attendance of the child is not essential then the second mandatory part comes into operation. 

 

“All the provisions of the JJ Act are to be construed in a harmonious manner… Therefore, this Court is of the view that in view of the aforesaid facts and circumstances, the aforesaid orders dated 01.06.2022 and 27.06.2022 are liable to be set aside”, the Bench held. 

 

In the conclusion, the Court held, “(i) It is held that an undertrial or a juvenile who is a child in conflict with law does not have any Fundamental Right or Statutory Right to higher education abroad”, and “(ii) However, right of the petitioner to travel abroad although is a valuable and basic human right apart from being an integral part of right to personal liberty can be curtailed according to procedure established by law in a reasonable, just and fair manner by considering the scheme, object and spirit of the Juvenile Justice (Care and Protection of Children) Act, 2015 especially Sections 90 and 91.”

 

Thus, the present petition was partly allowed. Impugned orders were not held to be in consonance with the scheme of the JJ Act especially Sections 90 and 91 of the Act. Therefore, the order of the JJ Board and that of the Additional Sessions Judge, Gurugram were set aside. The JJ Board, Gurugram was directed to pass a fresh order within a period of one month on receipt of a copy of this order and in accordance with the law.

 

In W.P.(C)13881/2019-DEL HC- Petitioner having participated in selection process cannot challenge same after he has been declared unsuccessful: Delhi HC dismisses petition of unsuccessful candidate competing for post of Junior Judicial Assistant/Restorer
Justices Vibhu Bakhru & Amit Mahajan [26-09-2022]

Read Order: KARAN SINGH MEENA v. THE REGISTRAR GENERAL, DELHI HIGH COURT & ANR 

 

Mansimran Kaur

New Delhi, September 28, 2022: The Delhi High Court has reiterated that it is not open for a candidate, who participated in the selection process, to subsequently challenge the same once he has been declared unsuccessful.

The Division Bench of Justice Vibhu Bakhru and Justice Amit Mahajan dismissed the petition instituted by the petitioner impugning his viva voce test result for appointment to the post of a “Junior Judicial Assistant/Restorer (Group-‘C’). The Division bench was of the view that it was unable to accept the proposition that it was impermissible for the DHC to fix minimum qualifying marks for the interview.


The petitioner was unsuccessful in qualifying for the appointment to the said post as his viva voce result was below the minimum qualifying threshold, as stipulated. The petitioner claimed that the criteria of fixing the minimum qualifying marks in a viva voce, was impermissible.

 

The Respondent-DHC had issued a notice inviting online applications from Indian citizens for filling up the posts of “Junior Judicial Assistant/Restorer (Group-‘C’) and preparing a panel for a total of 124 vacancies out of which 11 of vacancies were reserved for candidates belonging to the Scheduled Tribes (ST). 

 

The DHC had prescribed a multi-tier test for selection of the candidates. In terms of the said scheme, as published, eligible candidates were required to appear in an objective type test for two hours, based on the pattern of multiple-choice questions. The minimum qualifying marks for the preliminary examination was specified as 90 (that is, 50% of the maximum of 180 marks) for the General Category candidates and 81 (that is, 45% of the maximum of 180 marks) for the Reserved Category. 

 

 Admittedly, the petitioner, a reserved category candidate, appeared in the preliminary examination and secured 83.75 marks, which was above the minimum qualifying marks (81), as stipulated for the Reserved Category candidates. He appeared for the Essay Writing Test on December 12, 2017 and secured 31 marks out of a maximum of 50 marks, which was above the minimum qualifying threshold. The petitioner also qualified the typing test, which was held on April 30, 2018. 

 

The petitioner appeared for his interview. However, he secured only 6.6 (six point six) marks, which was below the minimum qualifying marks stipulated as 9 (nine) out of 35 (thirty-five).

 

The petitioner secured a total of 121.42 marks in aggregate, which the petitioner claimed was above the aggregate marks of some of the selected candidates. As noted above, he was unsuccessful in being selected solely for the reason that he had not secured the minimum qualifying marks in the interview. 

 

It was also pertinent to mention that the petitioner was the only candidate from the ST Category, who had qualified to appear for the interview. 

 

The only relief that the petitioner had sought in this petition is setting aside his result in the interview.  However, the substance of the contentions advanced on behalf of the petitioner was  to, essentially, challenge the fixing of minimum qualifying marks for the interview. According to the petitioner, the same was impermissible in view of the law laid down by the Supreme Court in Ramesh Kumar v. High Court of Delhi

 

In the present case, the Rules expressly provided that selection to 80% of the posts would be made on the basis of written test and interview. The Rules do not prescribe the manner or the mode of conducting the written tests and interview, the Bench opined.

 

As per the Bench, there is no provision in the Rules, which proscribes fixing of minimum qualifying marks. Thus, this Court was unable to accept that it was impermissible for the DHC to fix minimum qualifying marks for the interview.

 

The Bench also emphasized that the petitioner had not challenged the scheme of the examination at the material time. The petitioner had participated in the examination unreservedly, added the Court.

 

“It is well settled that it is not open for a candidate, who participated in the selection process, to subsequently challenge the same once he has been declared unsuccessful”, the Court observed. 

 

The petition was accordingly dismissed. 


 

In Civil Appeal No. 6953 OF 2022-SC- Leave encashment is part of salary, reaffirms Apex Court while clarifying that Non-Government Educational Institutions (Recognition Grant-In-Aid and Service Conditions) Rules, 1993 cast liability on aided Establishment to pay gratuity
Justices Uday Umesh Lalit & S. Ravindra Bhat [26-09-2022]

 

Read Judgment:JAGDISH PRASAD SAINI & ORS v. STATE OF RAJASTHAN & ORS 

 

Mansimran Kaur

 

New Delhi, September 28, 2022: While observing that the Non-government Educational Institutions in Rajasthan are governed by the Rajasthan Non-Government Educational Institutions Act, 1989 and the rules framed thereunder, the Supreme Court has made it clear that the scheme of the Non-Government Educational Institutions (Recognition Grant-In-Aid and Service Conditions, Etc.) Rules, 1993, which contains the conditions of grant, categorically cast the liability to pay gratuity on the the aided establishment

 

Relying upon the judgment in State of Rajasthan and Anr. v. Senior Higher Secondary School, Lachhmangarh, the Division Bench of Chief Justice Uday Umesh Lalit and S. Ravindra Bhat said, “As far as leave encashment dues are concerned, the issue is no longer at large. In Senior Higher Secondary School Lachhmangarh (supra) this court held that salary under the Act, includes leave encashment.”


 

The appellants were appointed against sanctioned posts by the fourth respondent (a senior secondary school, established and controlled by the respondent-trust) in 1993. They continued to work uninterruptedly in that establishment on a regular basis. The establishment was recipient of grant-in-aid from the State of Rajasthan and by a resolution. the managing committee of the establishment decided to discontinue receipt of grant-in-aid from the State with effect from 1 April, 2008. Accordingly, the State by an order dated December 28, 2012 ceased to grant aid with effect from March 1, 2012.

 

The appellants’ writ petitions were clubbed with several other petitions and disposed of by the High Court, refusing to direct the State to absorb these employees. The employees, including the appellants, unsuccessfully sought review of those orders which was rejected. The appellants thereafter approached this court by petitions for special leave to appeal questioning the orders of the High Court.  By its final order of July 19, 2016, this court set aside the denial of absorption of the appellants.

 

 Subsequently, the establishment moved an application seeking directions from this court. The application contended that the establishment had to pay the 11 aided employees, (i.e., the appellants) to the tune of Rs 57.68 lakhs, and privilege leave salary to the tune of Rs 36.20 lakhs.  The application also produced a chart of calculation of gratuity and leave encashment. This application was not allowed. However, this  Court allowed the appellants to withdraw the contempt petitions, with liberty to move the High Court for enforcement of orders of this court. In these circumstances, the appellants moved the High Court contending that the orders of this court had not been properly complied with, to the extent that they had not been paid privilege leave encashment and gratuity amounts.

 

The High Court by the impugned order rejected the applications preferred before it on the ground that since the salary required to be disbursed had in fact been paid to the appellant employees, there was no cause to pursue the matter further.The aggrieved appellants  therefore approached this court. 

 

After considering the rival contentions of the parties, the Court took into consideration the  Rajasthan Non-Government Educational Institutions Act, 1989 and Rajasthan Non-Government Educational Institutions (Recognition Grant-In-Aid and Service Conditions, Etc.) Rules, 1993.

 

In the present case, the management establishment was the recipient of 70% aid, in the form of a grant, the Court noted. 

 

In the present case, “...the scheme of the 1993 Rules, which contained the conditions of grant, categorically cast the liability to pay gratuity on the employer, i.e., the aided establishment, i.e., the fourth, fifth and sixth respondents in this case”, the Court noted. 

 

In these circumstances, the State cannot shrug its responsibility to shoulder its part of the responsibility to pay the appellants the share of leave encashment benefits, and hide behind either Rule 5 (viii) or the undertaking executed by them. 

 

The Bench held that the appellants were entitled to privilege leave entitlement benefits. Such benefit shall be calculated from the date they entered the service of the establishment till the date of their absorption, by the State, in 2016. The State shall pay the benefits due to the extent of 70%, and the balance 30% shall be payable by the management establishment, the Court further noted. 

 

At the outset, the Court observed that with respect to leave encashment, the State and the respondent- establishment are liable to pay the appellants, in the ratio of 70:30 respectively. The respondent State shall, within four weeks from today, determine the extent of entitlement of each appellant, and communicate the extent of amount payable by the management establishment (third to seventh respondents), to the appellants. These amounts shall be paid by all the respondents, within six weeks from today.

 

 The Management shall also calculate and pay the amount of gratuity, to the appellants (on the basis of their initial date of entry in the school, till the date of order of absorption, by the respondent State), within six weeks, the Bench held. In light of the observations stated above, the appeal was allowed and the impugned order was set aside. 


 

In BAIL APPLN. 603/2022-DEL HC- If accused voluntarily waives his right to be searched and chooses not to exercise his right u/s 50 of NDPS Act, then it cannot be said that there has been non-compliance of such provision: Delhi HC 
Justice Anu Malhotra [27-09-2022]

Read Order: FANTOOSH YADAV v. STATE (GOVT. OF NCT OF DELHI) 

 

Mansimran Kaur

 

New Delhi, September 28, 2022: The Delhi High Court has refused to grant bail to an accused booked under the NDPS Act after he was found in an alleged possession of a commercial quantity of Codeine in the form of Codeine Phosphate as phensedyl syrup in bottles as he was allegedly driving the truck in which the contraband was found concealed beneath certain electronic articles.

 

Justice Anu Malhotra rejected the instant application preferred by the applicant, seeking the grant of regular bail in relation to the FIR register = under Sections 21/25/29 of the NDPS Act, 1985 as there was no ground to believe that the applicant was  not guilty of the commission of any offence punishable under the NDPS Act or that he was  unlikely to commit any such offence during trial.

 

In this NDPS matter, the applicant seeking the grant of regular bail, submitted that he was merely a driver of a transporter / facilitator named Rakesh Sharma who was running a small transport business of providing trucks/lorries on rental basis. The applicant further submitted that he had rendered all his cooperation for completion of the investigation

It was the applicant’s case that the public witnesses did not support the prosecution version and the trial would take time which would cause prejudice to the rights of the applicant. 

 

It was further submitted that the provisions of Section 50 of the NDPS Act, 1985 were not  complied with, in as much as, the presence of any Magistrate or Gazetted officer at the time of search of an accused was  necessary to ensure authenticity, transparency and creditworthiness of the entire proceedings.

 

After considering the rival contentions of the parties, the Court noted that the said accused was not himself found in possession of the contraband of Phensedyl Syrup, which was allegedly found concealed beneath the electronic articles seized in the truck.  It was further noted by the Court that the facts alleged against the present applicant were not in pari materia with the facts alleged against the co-accused persons named Rakesh Sharma and Kailash Gupta. 

 

As per the Bench, there was  nothing in the instant case to show that the Codeine Phosphate was required for any therapeutic purpose.  

 

As regards the contention raised on behalf of the applicant qua the non-compliance of the provisions of Section 50 of the NDPS Act, 1985 submitting to the effect that there was no Gazetted officer or any Magistrate at the time of the search of the applicant, the Court essentially  observed  that the allegations levelled against the applicant were  to the effect that though, the search of the applicant in the presence of a Gazetted officer or a Magistrate was offered, the applicant declined to avail of the same. 

 

“Thus,  in as much as, the applicant in the instant case was  alleged to have waived his right to be searched voluntarily and had chosen not to exercise his right provided to him in terms of Section 50 of the NDPS Act, 1985, it cannot be contended by the applicant that there has been a non-compliance of Section 50 of the NDPS Act, 1985”, the Court observed. 

 

 The aspect of compliance or otherwise of Section 42 of the NDPS Act, 1985 and the weight to be given to the testimonies of witnesses examined is a matter of Trial, the Court further remarked.  

 

In such circumstances, the applicant having been found in an alleged possession of a commercial quantity of Codeine in the form of Codeine Phosphate as phensedyl syrup in bottles allegedly and consciously as he was allegedly driving the truck in which the contraband was found concealed beneath electronic articles, the Bench opined that the embargo under Section 37 wholly applied to the facts of the instant case.

 

Finding no ground to  believe that the applicant was not guilty of the commission of any offence punishable or that he wass unlikely to commit any such offence during trial under the NDPS Act, 1985, the Court dismissed the bail application.

 

In CRM-M No.12565 of 2016-PUNJ HC- Revisional jurisdiction u/s 397 r/w Sections 399 & 401 of CrPC,  can be exercised by Sessions Court on its own: P&H HC
Justice Pankaj Jain [27-09-2022]

Read Order: Darshan Singh v. Ranjit Kaur and Others

 

Monika  Rahar

 

Chandigarh, September 28, 2022: The High Court of Punjab and Haryana has recently held that revisional jurisdiction under Section 397 r/w Section 399 and Section 401 Cr.P.C. can be exercised by the Sessions Court also on its own. 

 

Further, the Bench of Justice Pankaj Jain held,  “Bare perusal of Section 397 Cr.P.C. provides for that where the issue relates to satisfaction of the Court to the correctness, legality or propriety of finding, sentence or order recorded or passed, the Revisional Court may call for and examine the record of any proceedings before any inferior Criminal Court situated within its or his local jurisdiction.”

 

It was the petitioner’s case that in order to save the marital ties of his brother with Jaswinder Kaur (accused), he (petitioner) bought a piece of land in the name of Jaswinder Kaur. Following this, the couple moved to Canada and his brother distanced himself from the petitioner and his family. The said Jaswinder Kaur allegedly threatened to dispossess the petitioner from the plot that he bought in her name. Thus, he filed a Civil Suit which was dismissed. Aggrieved, the petitioner filed an appeal which was also dismissed.

 

It was further the petitioner’s allegation that Jaswinder Kaur sold the land through her sister acting as her Attorney vide a Sale Deed dated December 28, 2007. It was asserted that the Power of Attorney dated November 23, 2000, executed by Jaswinder Kaur in favour of her sister was revoked in June 2002. Thus, the said Sale Deed was a result of fraud. 

 

All the respondents were said to be guilty of having committed offences punishable under Sections 420, 465, 468, 471, 217, and 120-B IPC. The Trial Court at the time of summoning found that an offence punishable under Section 420 IPC was made out against the accused Jaswinder Kaur and her sister, thus, the Court summoned them to face trial. 

 

Jaswinder Kaur’s sister challenged the aforesaid order before the Revisional Court which allowed the revision petition while dismissing the complaint. Hence, the present quashing plea was filed. 

 

The petitioner's counsel submitted that the Trial Court travelled beyond the scope of revision. He asserted that in fact Jaswinder Kaur never preferred any revision against the summoning order, yet merely on the revision preferred by her sister, the complaint was dismissed against Jaswinder Kaur as well. 

 

Per contra, the respondents’ Counsel submitted that no fault can be found in the orders of the Revisional Court. Relying upon Sections 397 and 399 Cr.P.C., it was pleaded that Sessions Court was not precluded from exercising revisional powers by himself. Referring to the order passed by the Revisional Court, Counsels submitted that the Revisional Court found that the complaint when tested on the touchstone of ingredients constituting an offence punishable under Section 420 IPC was found deficient and, thus, was right in dismissing the complaint in toto.

 

After hearing the parties, the Court opined that the revisional jurisdiction under Section 397 r/w Section 399 and Section 401 Cr.P.C. can be exercised by the Sessions Court also on its own. 

 

Further, the Court added, “Bare perusal of Section 397 Cr.P.C. provides for that where the issue relates to satisfaction of the Court to the correctness, legality or propriety of finding, sentence or order recorded or passed, the Revisional Court may call for and examine the record of any proceedings before any inferior Criminal Court situated within its or his local jurisdiction.”

 

Adverting to the present case, the Court found no fault with the revisional Court dismissing the complaint qua Jaswinder Kaur also. The Bench noted that the Revisional Court was fully satisfied that it was a case where the complaint itself had no legs to stand and, thus, dismissed the same. 

 

Next, the Court addressed the question of whether the complaint could be sustained against Jaswinder Kaur alone. Regarding this question, the Court added that Ranjit Kaur was acting in the shoes of Jaswinder Kaur thus, once the summoning order and the complaint, were quashed qua Ranjit Kaur, it could be axiomatically said that the complaint could not survive against Jaswinder Kaur alone. 

 

“Thus, it is one of those rare cases wherein the Revisional Court was justified in invoking revisional powers on its own”, the Bench held. 

 

Consequently, the present petition was dismissed

 

In CS(OS) 593/2022-DEL HC- Freedom of speech & expression is not unfettered right: Delhi HC directs Aam Aadmi Party to remove all defamatory or factually incorrect social media posts against Delhi LG  
Justice Amit Bansal [27-08-2022]

Read Order:VINAI KUMAR SAXENA Vs. AAM AADMI PARTY & ORS

Tulip Kanth

 

New Delhi, September 28, 2022: Spelling out the contours of free speech, the Delhi High Court has opined that the fundamental right to freedom of speech has to be counterbalanced with the right of reputation of an individual while also observing that  various defamatory posts and statements had been made by the Aam Aadmi Party in order to tarnish the reputation of Vinai Kumar Saxena, Lieutenant Governor (LG) of Delhi.

 

The plaintiff -Lieutenant Governor (LG) of Delhi had approached the Bench of Justice Amit Bansal seeking relief of permanent injunction and damages against the defendants on account of defamatory statements made on behalf of the defendants- Aam Aadmi Party and its office bearers on their social media platforms.

 

It was the plaintiff’s case that the Party and its members had launched a barrage of personal attacks against the plaintiff, making unsubstantiated and baseless allegations that the plaintiff had indulged in corruption and money laundering to the tune of Rs.1,400 crore at the time of demonetization while the plaintiff was the Chairman of the Khadi and Village Industries Commission (KVIC).As per the plaintiff the defendants  The defendants had circulated defamatory hashtags and also conducted interviews in the news media towards defaming the plaintiff. 

 

The whole foundation of the libelous posts/tweets and slanderous statements of the defendants was based on extracts of the statements of two accused persons, being Mr. Sanjeev Malik and Mr. Pradeep Kumar Yadav, former employees of KVIC, the plaintiff further asserted.

 

Referring to the judgment of the Top Court in Umesh Kumar v. State of Andhra Pradesh and Another, the Bench said, Article 19(1)(a) of the Constitution afford the right of freedom of speech and expression to all persons. However, the same is subject to restrictions under Article 19(2), which includes defamation. Therefore, the right to freedom of speech and expression is not an unfettered right in the garb of which defamatory statements can be made to tarnish the reputation of a person.” 


 

According to the Bench, the statements made by the defendants that the plaintiff was involved in any acts of corruption at the time of demonetization, were completely unsubstantiated. On the allegations in respect of a contract of Rs 80 crore being assigned to the daughter of the plaintiff while the plaintiff was the Chairman of KVIC, the Bench held that such claims were imaginary as there was no material on record to substantiate the aforesaid statement. Further, KVIC in its letter had  clarified that no money was paid to the daughter of the plaintiff for the professional services rendered by her, the Bench noticed.

 

The defendants had also alleged that cash was distributed to the weavers in Bhagalpur, Bihar while the plaintiff was the Chairman of KVIC. On this aspect, the Bench clarified there was nothing in order of the Patna High Court that indicted the plaintiff in any manner. “Even if some irregularities occurred while the plaintiff was the Chairman of KVIC, the plaintiff cannot be made personally liable for the same. This cannot be the basis of a personal attack against the plaintiff”, the Bench said.


 

On a prima facie view, the Bench noted that the various statements/interviews/press conferences/tweets/re-tweets/hashtags made by the defendants were per se defamatory. 

 

“In the present case, the plaintiff, being a Constitutional Authority, cannot meet the personal attacks being made by the defendants against him by taking resort to social media platforms. The defendants have not even bothered to respond to the legal notice dated 5th September, 2022 sent on behalf of the plaintiff. Therefore, the only remedy available for the plaintiff to protect his reputation and prevent erosion of the same would be to approach the court of law and seek injunctive relief,” the Bench held.

 

Noticing that grave and irreparable harm and injury would be caused to the reputation of the plaintiff if the aforesaid defamatory content continued to exist on the internet, the High Court restrained the defendants- Party and its office bearers from posting any defamatory or factually incorrect tweets, re-tweets, hashtags, videos of press conferences/interviews, comments, captions and taglines against the plaintiff and also directed the defendants to remove the defamatory posts.
 

In CRM-M-2270-2020-PUNJ HC- Subsequent marriage of accused with prosecutrix will not dilute offence under POCSO Act or u/s 376 IPC, rules P&H HC
Justice Suvir Sehgal [07-09-2022]

Read Order: Nardeep Singh Cheema @ Navdeep Singh Cheema v. State of Punjab and Others

 

Monika Rahar

 

Chandigarh, September 28, 2022:  The High Court of Punjab and Haryana has held that an offence under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), which is a special statue, cannot be quashed on the basis of any compromise or matrimony between the accused and the prosecutrix. 

 

The Bench of Justice Suvir Sehgal further held that the POCSO Act has been incorporated with the objective of protecting children from offences of sexual assault, sexual harassment, pornography and thus, subsequent marriage of the accused with the prosecutrix would not dilute the offence under POCSO Act or under Section 376, IPC. 

 

“If an accused is absolved of committing sexual excesses with a minor on the basis of settlement with victim on her attaining majority, this would encourage an unhealthy trend and defeat the objective and spirit behind the legislation of POCSO Act”, the Bench held. 

 

The instant petition was filed under Section 482 of the Cr.P.C. seeking the quashing of an FIR registered for offences under Sections 363 and 366-A of the IPC, however, later on Section 376, IPC and Section 4 of the POCSO Act were added. 

 

Essentially, based on the statement of the victims’ father, an FIR was registered against the petitioner and his co-accused alleging that the minor daughters of the complainant were enticed by the petitioner and his co-accused while they were out for some school related work. The complainant also alleged that the petitioner and his co-accused were chasing his daughters for marriage despite their (daughters’) repeated refusals. Since the daughters didn’t return home, the present FIR was registered. 

 

While referring to the Marriage Certificate, the petitioner’s counsel submitted that petitioner and one of the daughters of the complainant got married after she attained majority. The Counsel further added that the parties were happily married and that a compromise was entered into between the parties. In support of this argument, the Counsel produced affidavits executed by the complainant and his daughter, reflecting upon the said compromise. 

 

The State counsel opposed the petition while submitting that the petitioner was accused of sexually exploiting a minor. However, the complainant’s counsel supported the petitioner’s case. 

 

After hearing the parties, the Court observed that the prosecutrix was admittedly a minor when she was recovered from the petitioner’s custody after being enticed by him. The Court also noted that she was subjected to sexual assault by the petitioner.

 

In light of the factual background of the case, the Court opined that the subsequent marriage of the accused with the prosecutrix would not dilute the offence under POCSO Act or under Section 376, IPC. 

 

“POCSO Act has been incorporated with the objective of protecting children from offences of sexual assault, sexual harassment, pornography. If an accused is absolved of committing sexual excesses with a minor on the basis of settlement with victim on her attaining majority, this would encourage an unhealthy trend and defeat the objective and spirit behind the legislation of POCSO Act”, the Bench asserted. 

 

Consequently, the Bench held that offence under POCSO Act, which is a special statute, cannot be quashed on the basis of any compromise or matrimony between the accused and the prosecutrix. 

 

Finding no merit in the prayer made, the petition was dismissed. 

 

In Civil Appeal Nos.5755-5756 OF 2011-SC-No effective decree could be passed in absence of necessary party; Suit is liable to be dismissed, if such party is not impleaded, reiterates Top Court
Justices B.R. Gavai & C.T. Ravikumar [27-09-2022]

Read Judgment:MORESHAR YADAORAO MAHAJAN Vs VYANKATESH SITARAM BHEDI (D) THR. LRS. AND OTHERS 

 

Mansimran Kaur

 

New Delhi, September 28, 2022:  While dealing with the appeals challenging the order of the Trial Court through  which the suit for specific performance had been decreed, the Supreme Court has held that as the suit property was jointly owned by the defendant along with his wife and three sons, an effective decree could not have been passed affecting the rights of the defendants wife and three sons without impleading them

Referring to the judgment in Kasturi v. Iyyamperumal and Others, the Division bench of Justice B.R. Gavai and C.T. Ravikumar said, “It can thus be seen that what has been held by this Court is that for being a necessary party, the twin test has to be satisfied. The first one is that there must be a right to some relief against such party in respect of the controversies involved in the proceedings. The second one is that no effective decree can be passed in the absence of such a party.”

 

In this matter, the plaintiff, a doctor, took on rent a part of the house of the defendant for starting his private practice. It is the case of the plaintiff that subsequently, the defendant was in financial need and therefore, he suggested to the plaintiff that he should purchase the said part of the house which the plaintiff was occupying, together with an added portion.

 

 The plaintiff accepted the said suggestion and an agreement to sell was entered into  and the defendant agreed to sell and the plaintiff agreed to purchase the suit property for Rs.50,000.

 

The plaintiff paid an amount of Rs.24,000 on the date of the agreement and the defendant executed an earnest note in favour of the plaintiff. As per the terms of the agreement to sell, the sale deed was to be executed before March 31, 1985 It was  the case of the plaintiff that on  July 31,  1984, the defendant again requested for money and on such request, the plaintiff paid him an amount of Rs.6,000. It was also the case of the plaintiff that pursuant to the aforesaid payment, he was put in possession of the suit property on  July 31,  1984.

 

It was also the plaintiff’s case that he was always ready and willing to perform his part of the agreement and therefore, he informed the defendant by registered letter that he was willing to complete his part of the transaction before 31, March 1985. The Trial court, decreed the suit and directed the defendant to execute the sale deed by accepting the balance sale consideration as per the terms of the agreement to sell. 

 

Being aggrieved thereby, the defendant preferred an appeal before the Appellate Court which was also dismissed. The defendant thereafter preferred a second appeal which came to be partly allowed through the impugned judgment.

 

Relying on the judgment in Mumbai International Airport Private Limited v. Regency Convention Centre and Hotels Private Limited and Others (2010) 7 SCC 41, the Court noted, “It could thus be seen that a necessary party is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. It has been held that if a necessary party is not impleaded, the suit itself is liable to be dismissed.”

 

In view of the plaintiff’s own admission that the suit property was jointly owned by the defendant, his wife and three sons, no effective decree could have been passed in their absence, the Court further remarked.  In that view of the matter, the Court stated that it failed to find any  error in the judgment of the High Court. The appeals were therefore liable to be dismissed.

 

The Bench, in order to balance the equities, partly decreed the suit and directed the defendant to refund an amount of Rs.30,000 with interest.  As a result, the appeals were dismissed. 


 

In CR-4080-2022 (O&M)-PUNJ HC- Merely by terming counter-claim as suit for declaration or simply because agreements were executed through GPA holder, defendant cannot avoid payment of ad valorem court fee: P&H HC
Justice Alka Sarin [27-09-2022]

Read Order: Rajinder Kaur v. Prem Kumar Gupta and Others 

 

Monika Rahar

 

Chandigarh, September 28, 2022: The High Court of Punjab and Haryana has held that merely by terming the counter-claim, a suit as for declaration, the defendant cannot avoid the payment of the ad valorem court fee. 

 

The Bench of Justice Alka Sarin further held,  “Order 8 Rule 6A(2) states that a counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgement. Order 8 Rule 6A(4) states that the counter-claim shall be treated as a plaint and governed by the rules applicable to the plaints, which would necessarily entail the payment of court fee.”

 

Additionally, the Bench also opined, 

 

Further, simply because the agreements were executed through GPA holder, which fact is not denied in the present case, the defendant-petitioner cannot avoid the payment of ad valorem court fee. The acts done by the attorney would be considered as binding on the defendant-petitioner.”

 

In this case, the petitioner (defendant in the original suit) was liable to pay an ad-valorem court fee on the counter-claim filed by her. Hence, the present revision petition was filed under Article 227 of the Constitution of India challenging the above order.

 

The petitioner’s counsel contended that the defendant-petitioner was not liable to pay ad valorem court fee as she, being the defendant in the suit, only filed a counter-claim and thus, no ad valorem court fee was needed to be paid on the counter-claim. 

 

After hearing the parties and perusing the relevant provisions of law governing counter-claim (Order 8 Rule 6A, CPC), the Court observed that as per Order 8 Rule 6A(2), CPC, a counter-claim has the same effect as a cross-suit so as to enable the Court to pronounce a final judgement. Order 8 Rule 6A(4) states that the counter-claim shall be treated as a plaint and governed by the rules applicable to the plaints, which would necessarily entail the payment of the court fee, the Court added. 

 

Further, Justice Sarin opined that merely by terming the counter-claim suit as for declaration, the defendant-petitioner cannot avoid the payment of the ad valorem court fee. 

 

Adverting to the present case at hand, the Court observed that the defendant-petitioner was an executant of the agreements to sell through her GPA holder. Though the counter-claim was filed for a declaration to the effect that the alleged agreements to sell were illegal, null and void, however, the Bench was of the view that in effect what the defendant-petitioner was seeking was for cancellation of the said agreements to sell. 

 

Further, simply because the agreements were executed through GPA holder, which fact is not denied in the present case, the defendant-petitioner cannot avoid the payment of ad valorem court fee. The acts done by the attorney would be considered as binding on the defendant-petitioner”, the Court asserted. 

 

Holding the revision petition to be devoid of any merit, the Court dismissed the revision petition. 




 

In Civil Appeal No.6972 of 2022-SC- Election Petitions are time-sensitive matters; Party to litigation cannot wait indefinitely for availability of reasons: SC sets aside Telangana HC order rejecting such petition after noting that no reasoned order was supplied to parties 
Justices Dinesh Maheshwari & Bela M. Trivedi [ 26-09-2022]

Read Judgment: K. MADAN MOHAN RAO Vs. BHEEMRAO BASWANTHRAO PATIL & ORS 

 

Tulip Kanth

 

New  Delhi, September 28, 2022: In a case where the reasoned order of the Telangana High Court rejecting an election petition was not supplied to the parties even after more than 3 months, the Supreme Court has opined that a party to the litigation cannot be expected to wait indefinitely for availability of the reasons for the order of the Court.

 

The grievance projected before the Division Bench of Justice Dinesh Maheshwari and Justice Bela M. Trivedi was that an application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC) moved in the Election Petition filed by the present appellant in the Telangana High Court, was taken up for consideration after a considerable delay. 

 

After a prolonged hearing, the order was pronounced on June 15, 2022, whereby the application was allowed and the election petition filed by the present appellant was rejected. The reasoned order allowing the application was not available as yet.

 

Referring to Section 86(7) of the Representation of the People Act, 1951 which mandates the requirement of expeditious proceedings and conclusion of trial of the election petition within six months from the date of presentation, the Bench opined that this litigation, by its very nature, called for expeditious proceedings while being assigned a specific priority by the Court dealing with the same.

 

The Apex Court also referred to its judgments in State of Punjab and Others v. Jagdev Singh Talwandi and Anil Rai v. State of Bihar.

 

Finding difficulty in countenancing the position that even after pronouncement of the result on the application under Order VII Rule 11 CPC on June 15, 2022, the reasoned order was not available to the parties until this date, the Bench took note of the fact that even after more than three months from pronouncement of the order by the High Court, the reasons were not forthcoming and were not available with either of the parties. Looking at the nature of litigation and the overall circumstances, the Bench was unable to countenance this position.

 

As a result of such factual and legal aspects, the Bench was constrained to observe that a party to the litigation cannot be expected to wait indefinitely for availability of the reasons for the order of the Court. “Moreover, when the matter relates to the election petition under the Act of 1951, which itself is a time-sensitive matter, we find no reason that the appellant be relegated to the statutory remedy of appeal under Section 116A of the Act of 1951 in this case”, the Bench remarked.

 

Justice Maheshwari, speaking for the Bench, held that the order dated June 15, 2022, as said to have been passed by the High Court in disposal of the application under Order VII Rule 11 CPC, deserved to be disapproved only for the reason that even until this date, the reasons for the said order were not available with either of the parties nor were available on the website of the High Court. The Bench also noted that a copy of the order had not been supplied despite the parties having made the applications seeking certified copy of the order.

 

Thus, the Bench restored the matter for re-consideration before the Chief Justice of the High Court and asked the parties through their respective counsel to stand at notice to appear before the High Court on October 10, 2022.

 

 

In FAO-7541-2014 (O&M)-PUNJ HC- When driver is holding licence to drive 'light motor vehicle', he is competent to drive 'transport vehicle' of that category without specific endorsement to drive transport vehicle: P&H HC
Justice Archana Puri [22-09-2022]

Read Order: Cholamandlam General Insurance Company Limited v. Smt.Shashi Upadhyay and others

 

Monika Rahar

 

Chandigarh,  September 27, 2022: While dealing with an appeal filed by an insurance company assailing the quantum of compensation granted to family members of a road accident victim, the Punjab and Haryana High Court has held that when the driver is holding a licence to drive 'light motor vehicle', he is competent to drive 'transport vehicle' of that category without specific endorsement to drive the transport vehicle.

 

Also, it was held by Justice Archana Puri that if the deceased is having a permanent job and is between the age group of 40 to 50 years, the addition towards future prospects to the income of the deceased, has to be 30%.

 

The present appeal was filed by Cholamandlam General Insurance Company Limited assailing the Award of the Motor Accident Claims Tribunal, whereby, compensation to the extent of Rs.78,46,610/- was granted to the claimants (respondents) on account of the death of Rakesh Upadhyay, in a motor vehicular accident.

 

Essentially, the claimants' case was that Rakesh Upadhyay who was on a motorcycle, sustained major injuries leading to his death, on account of an accident caused due to the rash and negligent driving of the sixth respondent. The FIR in this case was registered at the instance of the co-worker of the deceased who was on another motorcycle with him.

 

The driver denied all the allegations levelled against him and the defence of the insurance company was struck off after it failed to pay cost imposed on it while setting aside an order of proceeding ex-parte against it.

 

After hearing the parties, the Court observed that sufficient evidence was produced by the claimants to establish the factum of the accident and also the fact that the same was a result of rash and negligent driving of the tractor driven by the sixth respondent. 

 

It was also the case of the claimants that the deceased was working as a supervisor and thus, his salary was to the extent of Rs.5,49,721.50 per annum.

 

The above-stated claim was not disputed by the counsel for the appellant-insurance company. The Counsel rather challenged the extent of Award, only on account of addition of 30% of the salary of the deceased, towards future prospects, as worked upon by the Tribunal. She submitted in this regard that the addition, on account of future prospects, at the maximum could be only to the extent of 20%.

 

This argument was held by the Court to be wrong. The Court held that if the deceased was having a permanent job and was between the age group of 40 to 50 years, the addition towards future prospects to the income of the deceased, had to be 30%. 

 

"Thus, it stands established that Rakesh Upadhyay was a permanent employee of the company and therefore, towards future prospects, 30% of the income had to be taken into consideration. Working upon the same, the learned Tribunal has rightly reached the conclusion, after deduction of income tax, about earnings of the deceased, on an annual basis, to be Rs. 5,28,999/-", the Bench added. 

 

Next argument of the appellant's counsel was at the relevant time of accident, the driver was not holding a valid and effective driving licence, to drive the tractor trolley, as he was holding a driving licence for 'LMV, MT and Motorcycle' only and there was no endorsement, authorising him to drive a 'transport vehicle'. 

 

As such, it was submitted that the insurance company be absolved from any liability to pay the awarded amount. Besides the same, it was also submitted that if the liability was held to be joint and several, then the recovery rights be given to the insurance company.

 

Regarding this argument, the Court, while taking into consideration the relevant case laws, held that when the driver is holding a licence to drive a 'light motor vehicle', is competent to drive a 'transport vehicle' of that category, without specific endorsement to drive the transport vehicle. 

 

"In the case in hand, the driving licence of respondent No.6-Dilip Ram (who was driver of the offending vehicle) is for 'LMV and MT' and is covered within the same category. So, there was no need for specific endorsement to drive the transport vehicle", the Bench added. 

 

Thus, the present appeal was dismissed.