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Top Court quashes proceedings against friends & relatives in case of bigamy u/s 494 IPC, says complainant has to prove presence of accused persons & overt act of such persons in second marriage ceremony
Justices B.R. Gavai & Sandeep Mehta [15-05-2024]

Read Order: S. NITHEEN & ORS v. STATE OF KERALA & ANR [SC- CRIMINAL APPEAL NO(S). 2585 OF 2024]

 

LE Correspondent

 

New Delhi, May 17, 2024: The Supreme Court has clarified that in order to bring home the charge u/s 494 IPC, the complainant would be required to prima facie prove not only the presence of the accused persons, but the overt act or omission of the accused persons in the second marriage ceremony and also establish that such accused were aware about the subsisting marriage. 

 

The complainant- Reynar Lopez(respondent No.2) married Lumina(A-1) as per the Christian ceremonies in a church in Kerala on April 16, 2007. It was alleged that on August 13, 2010, Lumina(A-1) contracted marriage with Saneesh(A-2) under the Special Marriage Act, 1954. The appellants herein(A- 3, A-4, A-5, A-6 and A-7) are relatives and friends of Saneesh(A-2) and Lumina(A-1) and thus they too are responsible for the offence of bigamy committed by Lumina(A-1) as they had the common intention to commit such offence.

 

The appeals before the Top Court preferred on behalf of the appellants challenged the final judgment of the Kerala High Court whereby, the petition preferred by the appellants seeking quashing of the proceedings for the offences punishable under Section 494 read with Section 34 of the Indian Penal Code, 1860 was rejected.

 

Referring to the judgment in Gopal Lal v. State of Rajasthan [LQ/SC/1979/75], the Bench explained that the essential ingredients of  offence under Section 494 IPC arethat the accused spouse must have contracted the first marriage, while the first marriage was subsisting the spouse concerned must have contracted a second marriage, and both the marriages must have been valid in the sense that the necessary ceremonies required by the personal law governing the parties had been duly performed.

 

It was opined that the order framing charge is erroneous on the face of the record because no person other than the spouse to the second marriage could have been charged for the offence punishable under Section 494 IPC simplicitor. However, the Bench held that this is a curable defect, and the charge can be altered at any stage as per the provisions of Section 216 CrPC.

 

The present case was a peculiar case as the complainant has not sought prosecution of the appellants for the charge of abetting the second marriage by Lumina(A-1) under Section 109 IPC. The appellants were being roped in by virtue of Section 34 IPC with the allegation that they had the common intention to commit the offence under Section 494 IPC. 

 

“In order to bring home the said charge, the complainant would be required to prima facie prove not only the presence of the accused persons, but the overt act or omission of the accused persons in the second marriage ceremony and also establish that such accused were aware about the subsisting marriage of Lumina(A-1) with the complainant”, it added.

 

One Flory Lopez(A-3) and Vimal Jacob(A- 4) were not even alleged to be present at the time of such marriage. Hence, the involvement of these accused for the charge of having a common intention to commit the offence under Section 494 IPC was not established by an iota of evidence.

 

So far as S. Nitheen(A-5), P.R. Sreejith(A-6) and H. Gireesh(A- 7) were concerned, they were alleged to be the friends of Lumina(A-1) and Saneesh(A-2) and they witnessed the alleged bigamous marriage. 

 

The complainant who testified as CW-1 had alleged in his deposition that accused S. Nitheen(A-5), P.R. Sreejith(A-6) and H. Gireesh(A-7) were the witnesses to the second marriage. However, there was not even a shred of allegation by the complainant that these accused acted as witnesses to the second marriage having knowledge that Lumina(A-1) was already married to the complainant. 

 

In absence of such allegation, the prosecution of the S. Nitheen(A-5), P.R. Sreejith(A-6) and H. Gireesh(A-7), for the charge of having a common intention to commit the offence under Section 494 IPC is totally unwarranted in the eyes of law”, the Bench held.

 

Placing reliance upon Chand Dhawan(Smt) v. Jawahar Lal and Others [LQ/SC/1992/359] where the Top Court had upheld the order passed by the High Court quashing the criminal proceedings under Section 494 IPC against the accused therein, the Bench held that the order framing charge as well as the order rejecting the revision petition and criminal miscellaneous petition preferred by the accused appellants do not stand to scrutiny.

 

Allowing the appeals, the Bench quashed all the subsequent proceedings sought to be taken against the appellants. However, the trial of Lumina(A- 1) and Saneesh(A-2) has been ordered to be continued.

Complainant, having made investments in benami land deals, could not have instituted civil proceedings for recovery against persons in whose name the properties were held: Apex Court quashes proceedings against accused in alleged benami land deal
Justices B.R. Gavai & Sandeep Mehta [15-05-2024]

Read Order: C. SUBBIAH @ KADAMBUR JAYARAJ AND OTHERS v. THE SUPERINTENDENT OF POLICE AND OTHERS [ SC- CRIMINAL APPEAL NO(S). 2582 OF 2024]

 

Tulip Kanth 

 

New Delhi, May 17, 2024: In a criminal proceeding involving benami land deals instituted at the instance of a Government teacher, the Supreme Court has set aside a Madras High Court order dismissing the application preferred by the appellants seeking quashing of proceedings under Sections 420, 120B,294(b), 506(ii) of the IPC. The Top Court opined that a dispute which is purely civil in nature has been given a colour of criminal prosecution alleging fraud and criminal breach of trust by misusing the tool of criminal law.

 

The complainant, before being appointed as a Government teacher, was doing real estate business for earning his livelihood for the past 16 years.He claimed that taking undue advantage of the trusting nature of the complainant, the accused persons induced him to join their real estate business claiming that they had strong political connections. The complainant was not allowed to get the purchased properties registered in his name despite making the investments. He was given assurances that the plots bought under the names of different persons would be sold for huge profit in a very short duration and he would be given his share.

 

The complainant invested a sum of Rs. 1,01,47,800/- towards this transaction whereas, the accused invested proportionately much lesser amounts in the said land deal. A-1, A-3, A-4, and A-6 along with the complainant, purchased the said parcel of land from A. Sairam for a total consideration of Rs. 3,08,33,600/-. However, as per the complainant, the accused never gave him the plots equivalent to the investment made by him and thereby, committed fraud and breach of trust.

 

When the complainant was not given his share of properties, a Panchayat meeting was held whereby it was agreed that 52 plots admeasuring 256.51 cents would be handed over by A-1 and A-2 to the complainant towards the investment made by him.However, the accused committed breach of trust By not giving the complainant his share. The sale deeds were also not executed in favour of persons who were nominated by the complainant. It was further alleged that A-1 further induced the complainant to pay a sum of Rs. 41,00,000 in 2011 hereafter, the sale deed for one of the properties forming a part of the settlement memorandum was executed. The accused hadalso fraudulently transferred some lands in favour of unknown investors. Being aggrieved of these continued criminal activities of the accused, the complainant submitted a complaint at the Kovilpatti West Police Station.

 

The appeal by special leave before the Top Court was filed challenging the judgment of the Single Judge of the Madras High Court dismissing the application preferred by the appellants herein seeking quashing of proceedings of pending in the Court of Judicial Magistrate for offences punishable under Sections 420 read with Section 120B, Section 294(b), Section 506(ii) read with Section 114 of the Indian Penal Code, 1860( IPC).

 

Considering the fact that the complainant is a Public servant, the Division Bench of Justice B.R. Gavai & Justice Sandeep Mehta had put up a query to the Counsel regarding the applicability of Section 13(1)(b) and Section 13(2) of the Prevention of Corruption Act, 1988. It was submitted that 

whatever money the complainant invested in the disputed land deals entered into with the accused, were genuine investments made by using his valid and declared sources of income and savings. Being satisfied with the explanation, the Bench didnot find any justifiable cause so as to direct an enquiry against the complainant for the offences under the PC Act.

 

It was noticed that the property deals allegedly made in the names of other persons by using the funds partially provided by the complainant were benami transactions. Referring to the Benami Transactions (Prohibition), Act 1988, the Bench opined that by virtue of the provisions contained in Sections 4(1) and 4(2) of the Benami Act, the complainant is prohibited from suing the accused for a civil wrong, in relation to these benami transactions, as a corollary, allowing criminal prosecution of the accused in relation to the self-same cause of action would be impermissible in law.

 

“It is, thus, clear that the complainant in spite of having made investments in the land deals which were evidently benami transactions, could not have instituted any civil proceedings for recovery against the person(s) in whose name, the properties were held which would be the accused appellants herein”, the Bench said.

 

The Bench deciphered from the complaint that there was no such allegation therein which could persuade the Court to hold that the intention of the accused appellants was to defraud the complainant right from the inception of the transactions. 

 

Noting that the allegations can give a cause to the complainant to sue the accused appellants in a civil Court but such remedy is barred by Section 4 of the Benami Act, the Bench said, “Thus, we are of the firm view that the necessary ingredients of the offences punishable under Section 406 and Section 420 IPC are not made out against the accused appellants from the admitted allegations set out in the complaint and the charge sheet. It cannot be doubted that a dispute which is purely civil in nature has been given a colour of criminal prosecution alleging fraud and criminal breach of trust by misusing the tool of criminal law.”

 

It was observed that in view of the clear bar contained in Section 4 of the Benami Act, the complainant could not have sued the accused appellants for the same set of facts and allegations which are made the foundation of the criminal proceedings.

 

Moreover, apart from a bald allegation made by the complainant that A-1 abused him and intimidated him on July 28, 2010, there was no material to show that the accused indulged in criminal intimidation of the complainant so as to justify invocation of the offence punishable under Section 506(ii) IPC.

 

“Thus, we are persuaded to accept the contention of learned counsel for the accused appellants to hold that the criminal prosecution instituted against the accused appellants in pursuance of the totally frivolous FIR tantamounts to sheer abuse of the process of law”, the Bench held.

 

Allowing the appeal, the Bench quashed all the proceedings sought to be taken against the appellants in pursuance of the charge sheet.

Top Court upholds order granting custody of minor children to father serving as Colonel in Armed Forces; sheds light on role of Courts while handling cases of Parental Alienation Syndrome
Justices Vikram Nath & Satish Chandra Sharma [11-05-2024]

Read Order: COL. RAMNEESH PAL SINGH v. SUGANDHI AGGARWAL [SC- CIVIL APPEAL NO(S). 6137 OF 2024]

 

LE Correspondent

 

New Delhi, May 17, 2024: While observing that the Indian Armed Forces provide a robust support system to the kin of its officers,the Supreme Court has upheld the order of a Family Court granting custody of minor children to the father, serving as a Colonel in the Armed Forces, and providing visitation rights to the mother.The Apex Court also opined that Parental Alienation Syndrome (PAS) is a thoroughly convoluted and intricate phenomenon that requires serious deliberation. 

 

The marriage between the Appellant, serving as a Colonel in the Indian Armed Forces and the Respondent, who is employed as a teacher in Delhi Public School, was solemnized in the year 2002.They have two minor children, a 15 year-old daughter (SSU) and a 12-year-old son (SSH).

 

In December 2013, the Appellant, having been promoted to the rank of Colonel in the Indian Armed Forces, was posted to serve in Jammu and Kashmir. Accordingly, it was decided that the Respondent together with the minor children would reside in New Delhi. The relationship between the parties deteriorated significantly and thereafter took a turn for the worst in the year 2015, forcing the Respondent to leave the matrimonial home along with the minor children.

 

Subsequently, the Respondent learnt that the minor children along with the Appellant were residing in Gulmarg, Jammu and Kashmir and were scheduled to move to Bikaner, Rajasthan in furtherance of the nature of the Appellant’s service. Aggrieved, the Respondent filed a petition under Section 7, 9 and 25 of the Guardian and Wards Act, 1890 before the Family Court seeking custody of the minor children.The Family Court had granted permanent custody of minor children to the Appellant and provided visitation rights to the Respondent. 

 

The appeal preferred by the Appellant sought to assail the correctness of an order passed by a Division Bench of the Delhi High Court whereby the appeal preferred by the Respondent challenging the Family Court's order was partly allowed. Vide the impugned order, the High Court granted the parties shared custody of the minor children.

 

Referring to the judgment in V. Ravi Chandran (Dr.) (2) v. Union of India) [LQ/SC/2009/2029],the Division Bench of Justices Vikram Nath & Satish Chandra Sharma said, “It is well settled that the principal consideration of the Court whilst deciding an application for guardianship under the Act in exercise of its parens patriae jurisdiction would be the ‘welfare’ of the minor children.”

 

The Bench took note of the fact that the minor children i.e., SSU and SSH had interacted with the Family Court expressing their preference to reside with the Appellant. Additionally, it was observed that the minor children were doing well in the pursuit of their education and co-curricular activities whilst residing with the Appellant.

 

The Division Bench observed that the minor children expressed their clear desire to reside with the Appellant.The Top Court also on an earlier occasion had interacted with the minor children and they categorically stated that they were happy and wished to reside with their father only i.e., the Appellant.

The natural and consequential deduction from the aforesaid interactions between the minor children and various Courts over a period spanning over four years, was the unwavering and strong desire of the children to continue to reside with the Appellant.

 

Next, the Bench dealt with the contentions in relation to the nature of employment of the Appellant posing a challenge in the upbringing and welfare of the Minor Children.The Bench was unable to subscribe to the aforesaid view in light of the fact that the Indian Armed Forces provides a robust support system to the kin of its officers so as to ensure minimal disruption in the lives of the civilian members of an officer’s family.

 

According to the Bench, the High Court had failed to appreciate the intricacies and complexities of the relationship between the parties and accordingly, proceeded to entertain allegations of PAS on an unsubstantiated basis. PAS is a thoroughly convoluted and intricate phenomenon that requires serious consideration and deliberation. Referring to the judgment in  Vivek Singh v. Romani Singh [LQ/SC/2017/223], the Bench said, “Courts must endeavour to identify individual instances of ‘alienating behaviour’ in order to invoke the principle of parental alienation so as to overcome the preference indicated by the minor children.”

 

Further, referring to the earlier orders, the Bench concluded that the minor children did not foster unbridled and prejudiced emotions towards the Respondent and the appellant could not have been said to have engaged or propagated ‘alienating behaviour’ as alleged by the Respondent.

 

The High Court failed to appreciate the aforesaid nuance and proceeded on an unsubstantiated assumption i.e., that allegations of parental alienation could not be ruled out, despite the stark absence of any instances of 'alienating behaviour' having been identified by any Court.

 

Thus, allowing the appeal and setting aside the impugned order, the Bench held, “In view of the aforesaid discussion, we consider it just and appropriate that the custody of the Minor Children is retained by the Appellant, subject to the visitation rights of the Respondent as granted by the Family Court vide the Underlying Order i.e., the final order dated 22.08.2020.”

Top Court sets aside order imposing penalty on Karnataka Biotics under Foreign Trade Act, 1992 in absence of any allegation against Company of making export or import in contravention of trade policy
Justices Abhay S. Oka and Ujjal Bhuyan [13-05-2024]

Read Order: M/S. EMBIO LIMITED v. DIRECTOR GENERAL OF FOREIGN TRADE & ORS [SC- CIVIL APPEAL NO. 6394 OF 2024[ 

 

Tulip Kanth

 

New Delhi, May 17, 2024: While setting aside an order imposing a penalty of over Rs 23 lakh on Karnataka Biotics,the Supreme Court has clarified that Section 11(2) of the Foreign Trade (Development and Regulation) Act, 1992 is a penal provision which must be strictly construed.

 

Karnataka Malladi Biotics Limited (Karnataka Biotics) obtained an Export Promotion Capital Goods Licence (licence), which enabled it to import certain capital equipment at a concessional rate of customs duty. Under the licence, Karnataka Biotics was permitted to import capital goods worth Rs 23,38,882 equivalent to US$ 64,987 CIF value, subject to the condition of the appellant exporting the finished goods worth US$ 2,59,948 and earning an equivalent amount in a freely convertible foreign currency within five years from the date of the licence. 

 

Karnataka Biotics imported goods as permitted under the licence and commenced commercial production. However, the Board for Industrial Finance and Reconstruction (BIFR) declared Karnataka Biotics as a sick unit under Section 3(1)(o) of the Sick Industrial Companies (Special Provisions) Act, 1985 (SICA). The said company submitted a rehabilitation proposal to the operating agency. As Karnataka Biotics had enjoyed the benefit of concessional duty, a demand notice was issued by the Commissioner of Customs, making a demand for the differential duty of Rs. 5,38,525/- from Karnataka Biotics. As the said company could not pay the demanded amount, a sum of Rs. 4,86,800/- was recovered by enforcing the bank guarantee furnished by the said company.

 

The BIFR sanctioned Karnataka Biotic's rehabilitation scheme under Section 18 of SICA. The third respondent passed an Order-in-Original imposing a penalty of Rs. 23,38,882 on Karnataka Biotics for non-fulfilment of export obligation under the licence. 

 

The appellant was formerly known as Emmellen Biotech Pharmaceuticals Limited, which amalgamated with Karnataka Malladi Biotics Limited in 2009. The  appellant filed a Writ Petition under Article 226 of the Constitution of India before the Karnataka High Court, challenging the order imposing a penalty of Rs. 23,38,882 which was dismissed. By the impugned judgment, a Writ Appeal against the order of the Single Judge was dismissed.Hence, appeal was filed before the Top Court.

 

The Division Bench of Justice Abhay S. Oka and Justice Ujjal Bhuyan noted that in the present case, there was no allegation made by the respondents against the appellant's predecessor of making or attempting to make any export or import in contravention of the FT Act, any Rules or orders made thereunder, or the foreign trade policy. 

 

Under the license granted to the appellant’s predecessor, there was an obligation to export finished goods by earning foreign exchange equivalent to USD 2,59,948 within a period of five years. The allegation was of the failure to abide by the obligation to export the finished goods within a period of five years. Thus, there was no allegation of attempting to make an export or import, which is covered by Section 11 (2). 

 

“There is no allegation against the appellant or its predecessor of making an export or import in contravention of the export and import policy. Section 11 (2) is a penal provision. It must be strictly construed. Thus, the demand for penalty cannot be sustained. Hence, we set aside the impugned judgments and orders of the learned Single Judge and Division Bench”, the Bench held.

 

Thus, allowing the appeal, the Bench set aside the Order In-Original by which the impugned penalty was imposed.

Apex Court exercises jurisdiction under Article 142 of Constitution, acquits man in case of stalking and criminal intimidation in light of fact that accused and complainant married each other
Justices B.R. Gavai & Sandeep Mehta [15-05-2024]

Read Order: DASARI SRIKANTH v. STATE OF TELANGANA [SC- CRIMINAL APPEAL NO(S). 2580 OF 2024]

 

LE Correspondent

 

New Delhi, May 17,2024: Taking note of the fact that the appellant-accused and the complainant-woman had married each other during the pendency of the appeal, the Supreme Court has acquitted the accused in a case of criminal intimidation and stalking. 

 

The Division Bench of Justice B.R. Gavai & Justice Sandeep Mehta was considering an appeal preferred by the appellant for assailing the judgment passed by the Telangana High Court upholding his conviction for offences under Sections 354D and 506-Part I of the Indian Penal Code, 1860(IPC), but reducing the sentence of imprisonment for both the offences to three months.

 

The accused appellant was tried by the Special Fast Track Court, Suryapet(trial Court). The trial Court acquitted the accused appellant for the offences under Section 11 read with Section 12 of the Protection of Children from Sexual Offences Act, 2012(POCSO Act) but at the same time, convicted and sentenced him for offences under Sections 354D and 506-Part I IPC. He was sentenced to undergo rigorous imprisonment for 2 years u/s 354 and simple Imprisonment for 6 months u/s 506.

 

The High Court reduced the sentences awarded to the accused appellant to three months on both counts. 

 

It was pleaded before the Top Court that the appellant and the complainant(victim) had married each other on August 6, 2023 as per the Hindu rites and customs. The marriage had also been registered in the Office of Registrar of Hindu Marriages and Sub Registrar.

 

The State Counsel had filed a compliance affidavit sworn by the Sub-Inspector of the police station concerned who verified the fact that the appellant and the complainant had solemnized marriage with each other and the marriage was registered as per the Hindu Marriage Act, 1955.The Top Court noted that the Trial Court did not find the offences under the POCSO Act proved and acquitted the accused appellant from the said charges.

 

The Division Bench opined that the offences under Section 354D IPC and Section 506 IPC are personal to the complainant and the accused appellant.  “The fact that the appellant and the complainant have married each other during the pendency of this appeal gives rise to a reasonable belief that both were involved in some kind of relationship even when the offences alleged were said to have been committed”, the Bench said.

 

The Top Court was of the view that since, the appellant and the complainant have married each other, the affirmation of the judgment rendered by the High Court would have the disastrous consequence on the accused appellant being sent to jail which in turn could put his matrimonial relationship with the complainant in danger.

 

Thus, setting aside the impugned judgments, the Top Court exercised its powers under Article 142 of the Constitution of India for quashing the conviction of the accused appellant as recorded by the trial Court and modified by the High Court. The Bench concluded the matter by observing, “The appellant is acquitted of the charges.”

‘Nothing but a tool to wreak vengeance’: Apex Court quashes criminal trespass case, takes note of 39-day delay in lodging FIR and possibility of enmity between parties 
Justices B.R. Gavai, Satish Chandra Sharma & Sandeep Mehta [15-05-2024]

Read Order: SHIVENDRA PRATAP SINGH THAKUR @ BANTI v. STATE OF CHHATTISGARH AND ORS [SC- CRIMINAL APPEAL NO(S). 2588 OF 2024]

 

Tulip Kanth

 

New Delhi, May 17, 2024: While observing that the allegation levelled by the complainant that the accused demolished the boundary wall was not substantiated and there was an imminent possibility of enmity between the parties, the Supreme Court has quashed an FIR registered under Sections 447, 427, 294, 506 read with Section 34 of the Indian Penal Code, 1860.

 

It was alleged in the FIR that respondent No. 5-Barkat Ali i.e. the complainant, had purchased the land in Bilaspur from one Geeta Rai, for a consideration of Rs. 25,00,000. A registered sale deed was executed and the complainant came into possession of the said land. The adjacent plot was purchased by one Sushma Kashyap, wife of Rajkumar Kashyap from the land owner Geeta Rai in the year 2016. The complainant and Sushma Kashyap were allegedly in possession of their respective plots and had raised construction of houses thereupon. 

 

The complainant alleged that he had built a boundary wall for the protection of his plot with a gate and grill and that he had stored cement, rods and other construction materials on the plot. It was alleged that accused Saurabh Pratap Singh Thakur and appellantShivendra Pratap Singh Thakur @ Banti, in furtherance of their common intention trespassed into the land in possession of the complainant and demolished the under construction house of Sushma Kashyap and the boundary wall of the complainant-Barkat Ali. The accused also stole raw materials kept at the complainant's land thereby, causing loss of Rs.4 lakhs and Rs. 6 lakhs to Sushma Kashyap and the complainant, respectively.

 

The complainant confronted the accused about their criminal acts but the accused threatened the complainant of dire consequences in presence of witnesses Uma, Shankar Sahu, Vishnu Sahu and other labourers. 

 

The appellant approached the Top Court with an appeal by special leave for assailing the order of the Single Judge of the Chhattisgarh High Court dismissing his Petition seeking quashment of FIR  registered under Sections 447, 427, 294, 506 read with Section 34 of the Indian Penal Code, 1860 and the charge sheet filed as a consequence of investigation of the said FIR.

 

The 3-Judge Bench of Justice B.R. Gavai, Justice Satish Chandra Sharma and Justice Sandeep Mehta opined that the FIR was lodged by complainant-Barkat Ali on June 29, 2019 with the allegation that the offences alleged were committed by the appellant and co-accused some time prior to May 20, 2019. Thus, the complainant was not even sure of the date on which the alleged offences were committed. No reason whatsoever had been given in the FIR for the huge delay of more than 39 days in approaching the police. 

 

The site plan prepared by the Investigating Officer revealed that so far as the plot of Purnima Begum, wife of Barkat Ali was concerned, it is fully encumbered by a boundary wall and no damage was shown to this structure. The site plan indicated that there was some damage to the under-construction house of Sushma Kashyap. In the FIR, the damage suffered by the complainant was quantified at Rs. 6 lakhs whereas the damage suffered by Sushma Kashyap was quantified as Rs. 4 lakhs owing to the demolition of her under construction house. The Bench noted that surprisingly, Sushma did not lodge any complaint to the police.

 

On going through the contents of the FIR, the Bench didnot find any material therein which could justify invocation of the offence punishable under Section 294 IPC. “Except for the offence under Section 447 IPC, all the remaining offences are non-cognizable whereas the offence under Section 294 IPC is ex facie not made out from the allegations set out in the FIR and the charge sheet. The allegation levelled by the complainant that the accused demolished the boundary wall constructed on the land in his possession has not been found to be substantiated during spot inspection”, the Bench said.

 

It was thus, apparent that there was an imminent possibility of animus between the complainant and the accused persons on this count. As per the Bench, the FIR which was lodged after 39 days of the incident, did not indicate the date or time, when the accused trespassed into the house of the complainant and caused damage to his property and committed the other offences for which the FIR came to be registered. 

 

“Therefore, we are of the view that the impugned FIR seems to be nothing but a tool to wreak vengeance against the appellant herein”, the Bench held while allowing the appeal and quashing the FIR as well as subsequent proceedings arising therefrom.

Decree for realisation of sum in plaintiff's favour should not amount to exploitation of judgment debtor by selling his entire property: Apex Court allows application u/s 144 CPC; sets aside sale of attached properties 
Justice Hrishikesh Roy &Prashant Kumar Mishra [14-05-2024]

Read Order: BHIKCHAND S/O DHONDIRAM MUTHA (DECEASED) THROUGH LRS v. SHAMABAI DHANRAJ GUGALE (DECEASED) THROUGH LRS[SC- CIVIL APPEAL NO. 5026 OF 2023]

 

Tulip Kanth

 

New Delhi, May 17, 2024: The Supreme Court has observed that the execution of a decree by sale of the entire immovable property of the judgment debtor is not to penalize him but the same is provided to grant relief to the decree holder and to confer him the fruits of litigation. However, the right of a decree holder should never be construed to have bestowed upon him a bonanza only because he had obtained a decree for realization of a certain amount.

 

The facts of the case were such that Dhanraj, the husband of the original plaintiff - Shamabai Dhanraj Gugale advanced a loan of Rs. 8,000 to the original defendant – appellant/judgment debtor in the year 1969. Upon his failure to repay the debt, the original plaintiff instituted a Special Civil Suit for recovery of Rs. 10,880/ and for other ancillary reliefs and costs. The Joint Civil Judge partly decreed the suit. The plaintiff-decree holder preferred an execution application which came to be transferred to the court of Civil Judge because the property belonging to the judgment debtor against which the decretal amount was to be recovered fell within the jurisdiction of Ahmednagar court. 

 

The civil appeal preferred by the original plaintiff came to be dismissed by the district court and at the same time the defendants cross objections were allowed to the extent of interest and cost. The total decretal amount of Rs.27694/- thus stood reduced to Rs. 17120/-. Before the decision rendered by the appellate court, the plaintiff/decree holder executed the decree and the properties of the defendant/judgment debtor were put to auction and were purchased by the original plaintiffs/decree holders themselves for a sum of Rs. 34000/- in the auction which was confirmed by the Executing Court.

 

The present appellant/judgment debtor moved an application for restitution under Section 144 CPC on the ground that the original decree having been varied, substantially, the execution sale deserved to be set aside and reversed by way of restitution. The Courts below had concurrently rejected the appellant/judgment debtors application for restitution basing the reasoning that he had not deposited any amount in court, when the suit was originally decreed and the decree was put in execution, and not even a part of the amount which was finally decreed by the appeal court was deposited, hence, the principle of restitution was not invokable.Aggrieved thereby, the appellant approached the Top Court.

 

The Division Bench of Justice Hrishikesh Roy and Justice Prashant Kumar Mishra reiterated the settled principle of law that courts power to auction any property or part thereof is not just a discretion but an obligation imposed on the Court and the sale held without examining this aspect and not in conformity with this mandatory requirement would be illegal and without jurisdiction.

 

The Top Court explained that the object of attachment of immovable property in the course of execution of decree is for realisation of the decretal amount by way of the sale of the attached property under Order XXI Rule 66 CPC.

 

It was made clear by the Bench that sub-rule (2) of Rule 66 of Order XXI CPC mandates that the sale proclamation should mention the estimated value of the property and such estimated value can also be given under Rule 54 Order XXI CPC. Reference was also made to Rule 54(1) Order XXI read with Rule 66 of Order XXI CPC wherein it is provided that either whole of the attached property or such portion thereof as may seem necessary to satisfy the decree shall be sold in auction. 

 

The assessed value of all the attached properties, in this case, is Rs. 1,05,700/- whereas the original decretal sum was Rs. 27,694/- which is about 26.2% of the total value of the property. Therefore, the Bench opined that when only one of the attached properties was sufficient to satisfy the decree there was no requirement for effecting the sale of the entire attached properties.

 

In the case at hand, the Executing Court did not discharge its duty to ascertain whether the sale of a part of the attached property would be sufficient to satisfy the decree.  “When the valuation of three attached properties is mentioned in the attachment Panchanama, it was the duty of the Court to have satisfied itself on this aspect and having failed to do so the Court has caused great injustice to the judgment debtor by auctioning his entire attached properties causing huge loss to the judgment debtor and undue benefit to the auction purchaser”, it added.

 

The fact that the properties were sold for a sum of Rs. 34,000 would further demonstrate that the decree holder who himself is the auction purchaser had calculatedly offered a bid at Rs. 34,000 despite being aware that the value of the attached properties is Rs. 1,05,700. 

 

“A decree for realisation of a sum in favour of the plaintiff should not amount to exploitation of the judgment debtor by selling his entire property”, the Bench held while allowing the application under Section 144 CPC and setting aside the sale of the attached properties belonging to the judgment debtor.

 

The Top Court also ordered that the parties be restored back to the position where the execution was positioned before the attachment of the immovable properties of the judgment debtor. The execution of the modified decree, if not already satisfied, has been asked to proceed in accordance with law.

Apex Court upholds decision of setting aside order of confiscation of sandalwood, takes note of failure of Kerala Forest Department in maintaining clear record of sandalwood trees in the year 2001
Justices A.S. Bopanna & Sanjay Kumar [14-05-2024]

Read Order: The Divisional Forest Officer, Munnar, Kerala, and another v. P.J. Antony, etc [SC- CIVIL APPEAL NOS. 9751-9752 OF 2011]

 

Tulip Kanth

 

New Delhi, May 17, 2024: While dismissing an appeal filed by the Divisional Forest Officer against a Kerala High Court judgment setting aside the order of confiscation of sandalwood, the Supreme Court has remarked that it was very surprising that the Forest Department in the State of Kerala had not maintained a record of the sandalwood trees growing in reserved forest lands and also private patta lands in the year 2001.

 

In this case, respondents- P.J. Antony claimed ownership and possession over 4.70 hectares of land in a plot of land situated in Marayoor Village while Cheriyan Kuruvila claimed title and possession over an extent of 1.09 hectares in the adjacent plot. P.J. Antony submitted an application to the Tahsildar, Devikulam, for issuance of a certificate for handing over the dried and fallen sandalwood trees in his land to the Forest Department. A similar application was also filed by Cheriyan Kuruvila. These applications were made in accordance with the scheme envisaged under G.O (MS) No. 126/773/AD, Agriculture (Forest) Department, dated 03.04.1973, which empowered the Forest Department to auction sandalwood trees grown on private lands and pay 70% of the sale proceeds to the landowners leaving the remaining 30% with the Department.

 

In 2001, Certificate was issued by the Village Officer.Thereafter, the Range Officer seized the sandalwood trees on getting secret information that sandalwood trees had been illegally uprooted and kept in the house of P.J. Antony. On inspection, 77 sandalwood trees, 41 pieces of sandalwood, 7 sandalwood stumps and 56 small roots were found illegally kept in the backside of the courtyard of House of Marayoor Panchayat. A confiscation order was passed but the same was set aside by the Conservator of Forest, High Range Circle, Kottayam, In consequence, the Divisional Forest Officer,reconsidered the case but again confirmed the seizure. Antony and Kuruvila approached the District Judge but their appeal was dismissed. This led to their filing writ petitions before the High Court of Kerala, which resulted in the passing of the impugned judgment.

 

The Division Bench of Justice A.S. Bopanna & Justice Sanjay Kumar took note of the admitted fact that earlier, during the year 1995, sandalwood trees had grown in the lands of P.J. Antony were sold in consultation with the Forest Department as per the Government's scheme. This fact was sufficient to indicate that sandalwood trees did grow in these lands. The documentation of the trees found in these lands in the year 2001, certified by the Revenue officials, was not liable to be rejected or eschewed as the Forest Department was unable to elicit anything to the contrary in the cross-examination of these officials.

 

It was further opined that the admissions of the Range Officer were sufficiently damaging in themselves. Those admissions were more than enough to decimate the case sought to be put forth by the Forest Department that a forest offence was committed by P.J. Antony and Cheriyan Kuruvila.

 

Reliance was placed upon Sections 52 and 61A of the Forest Act, dealing with seizure and confiscation of sandalwood etc., which require the officer concerned to come to the conclusion that there was a reason to believe that a forest offence had been committed. Section 2(e) of the Forest Act defines a forest offence to mean an offence punishable under the Forest Act or any Rule made thereunder. However, it was an admitted fact that the offence, if any, committed by P.J. Antony and Cheriyan Kuruvila in relation to the movement of the fallen and dried sandalwood, so as to stack it at one place, would be relatable to the KPT Act and would not constitute an offence under the Forest Act. Moreover, there was no answer forthcoming from the Forest Department as to how a forest offence was made out in the case on hand.

 

The Bench refused to agree with the claim of the Forest Department that a presumption would arise under Section 69 of the Forest Act, whereby commission of a forest offence could be inferred, but we are not persuaded to agree. Section 69 merely states that, when a question arises as to whether any forest produce is the property of the Central or State Governments, such produce shall be presumed to be the property of the Central Government or State Government, as the case may be, until the contrary is proved.

 

“It is indeed surprising, if not shocking, that the Forest Department in the State of Kerala had not maintained a record of the sandalwood trees growing in reserved forest lands and also private patta lands. There was no marking of such trees to identify them for the purpose of such record”, the Bench said. 

 

Thus, the Bench opined that the High Court of Kerala was fully justified in setting aside the confiscation order. Dismissing the appeals, the Bench ordered the Forest Department to proceed in accordance with the Government’s scheme and conclude the same expeditiously and, in any event, not later than three months.

‘Grounds of arrest have to be conveyed to the accused in writing expeditiously’: Top Court quashes arrest and remand of News Click's Director & Editor-in-chief Prabir Purkayastha in UAPA case
Justices B.R. Gavai & Sandeep Mehta [15-05-2024]

Read Order: PRABIR PURKAYASTHA v. STATE (NCT OF DELHI) [SC- CRIMINAL APPEAL NO(S). 2577 OF 2024]


 

Tulip Kanth 

 

New Delhi, May 16, 2024: Taking note of the fact that the arrest memo did not indicate the grounds of arrest and a copy of the remand application was not provided to the accused-appellant or his counsel, the Supreme Court has set aside the arrest of Prabir Purkayastha, the Founder and Editor-in-chief of online news portal NewsClick in a case pertaining to the Unlawful Activities(Prevention) Act, 1967.

 

The factual background of this case was that the officers of the Special Cell had carried out extensive raids at the residential and official premises of the appellant and the company, namely, M/s. PPK Newsclick Studio Pvt. Ltd. of which the appellant is the Director in connection with an FIR registered under Sections 13, 16, 17, 18, 22C of the Unlawful Activities(Prevention) Act, 1967(UAPA) read with Section 153A, 120B of the Indian Penal Code, 1860(IPC). During the course of the search and seizure proceedings, numerous documents and digital devices belonging to the appellant, the company and other employees of the company were seized. The appellant was arrested in connection with the said FIR on October 3, 2023 vide arrest memo which was in a computerized format and did not contain any column regarding the grounds of arrest of the appellant. This very issue was primarily the bone of contention between the parties to the appeal.

 

The appeal before the Top Court was filed against a Delhi High Court order dismissing the appellant’s plea to declare his arrest as illegal and in gross violation of his fundamental rights under Article 21 and 22 of the Constitution. The appellant's request to set aside the remand order was also declined.

 

The ASG had advanced a fervent contention regarding application of ratio of Pankaj Bansal v. Union of India and Others by urging that there was an inherent difference between the provisions contained in Section 19 of the PMLA and Section 43A and 43B of the UAPA.

 

On a perusal of the provisions, the Division Bench of Justice B.R. Gavai and Justice Sandeep Mehta opined that there was no significant difference in the language employed in Section 19(1) of the PMLA and Section 43B(1) of the UAPA which could persuade one to take a view that that the interpretation of the phrase inform him of the grounds for such arrest made by this Court in the case of Pankaj Bansal(supra) should not be applied to an accused arrested under the provisions of the UAPA.

 

“We find that the provision regarding the communication of the grounds of arrest to a person arrested contained in Section 43B(1) of the UAPA is verbatim the same as that in Section 19(1) of the PMLA”, the Bench said while also adding, “...the interpretation of statutory mandate laid down by this Court in the case of Pankaj Bansal(supra) on the aspect of informing the arrested person the grounds of arrest in writing has to be applied pari passu to a person arrested in a case registered under the provisions of the UAPA.”

 

According to the Apex Court, any person arrested for allegation of commission of offences under the provisions of UAPA or for that matter any other offence(s) has a fundamental and a statutory right to be informed about the grounds of arrest in writing and a copy of such written grounds of arrest have to be furnished to the arrested person as a matter of course and without exception at the earliest. 

 

“The right to be informed about the grounds of arrest flows from Article 22(1) of the Constitution of India and any infringement of this fundamental right would vitiate the process of arrest and remand. Mere fact that a charge sheet has been filed in the matter, would not validate the illegality and the unconstitutionality committed at the time of arresting the accused and the grant of initial police custody remand to the accused”, the Bench held.

 

From a holistic reading of various judgments pertaining to the law of preventive detention the Bench highlighted the consistent view of this Court that the grounds on which the liberty of a citizen is curtailed, must be communicated in writing so as to enable him to seek remedial measures against the deprivation of liberty. Thus, it was held that the submission of ASG that in a case of preventive detention, the grounds of detention need not be provided to a detenue in writing, was facie untenable in eyes of law.

 

Having no hesitation in reiterating that the requirement to communicate the grounds of arrest or the grounds of detention in writing to a person arrested in connection with an offence or a person placed under preventive detention as provided under Articles 22(1) and 22(5) of the Constitution of India is sacrosanct and cannot be breached under any situation, the Bench held that further non- compliance of this constitutional requirement and statutory mandate would lead to the detention being rendered illegal, as the case may be. It was asserted by the Bench that the provisions of Article 22(1) have already been interpreted by this Court in Pankaj Bansal(supra) laying down beyond the pale of doubt that the grounds of arrest must be communicated in writing to the person arrested of an offence at the earliest. 

 

As per the Bench, the interpretation given by the Single Judge that the grounds of arrest were conveyed to the accused in writing vide the arrest memo was unacceptable as the arrest memo did not indicate the grounds of arrest being incorporated in the said document.

 

The Bench also asserted, “We are of the firm opinion that once this Court has interpreted the provisions of the statute in context to the constitutional scheme and has laid down that the grounds of arrest have to be conveyed to the accused in writing expeditiously, the said ratio becomes the law of the land binding on all the Courts in the country by virtue of Article 141 of the Constitution of India.” 

 

Moreover, it was also observed that the copy of the remand application in the purported exercise of communication of the grounds of arrest in writing was not provided to the accused appellant or his counsel before passing of the order of remand dated October 4, 2023 which vitiates the arrest and subsequent remand of the appellant.

 

Thus, allowing the appeal, the Bench declared the arrest of the appellant followed by the remand order and HC's order to be invalid in the eyes of law.

‘Wrongdoer was not any outsider or stranger’: Delhi HC reverses order of acquittal, confirms conviction of man under POCSO Act for raping his 10-yr-old daughter for 2 years
Justices Suresh Kumar Kait & Manoj Jain [14-05-2024]

Read Order: STATE AND ORS v. P.D.D. AND ORS [DEL HC- CRL.A. 295/2021]

 

Tulip Kanth

 

New Delhi, May 16, 2024: While holding a man guilty for repeatedly raping his 10-yr-old daughter for 2 years, the Delhi High Court has highlighted the fact that in a patriarchal set up, which is still very much predominant in our country, such matters are either not reported at all or reported when it is beyond the tolerance of the victim.

 

The facts of the case suggested that the accused (respondent herein) used to work as security guard and his wife (PW3) was also working as security guard. They had two children, a daughter (victim herein) and a son (PW4).The victim girl revealed at the Police Station that her father had been sexually assaulting her for quite some time. She claimed that one day, when her father was jobless, he did not let her go to school and during noon hour, when she was alone, her father made her sleep along his side and touched her private parts. When she resisted, he rebuked her and then sexually assaulted her. She divulged about the above incident to her mother but when her mother confronted him, he scolded her mother. She also revealed that her father had been exploiting her for the last two years. 

 

Respondent PDD (name withheld) was charged and tried for committing aggravated penetrative sexual assault upon his own daughter and vide impugned order of the Trial Court, he had been acquitted of all the charges. Feeling aggrieved by the aforesaid judgment, State had filed a petition seeking leave to appeal. Such Leave to appeal was granted and the said petition was re-registered.

 

The Division Bench of Justice Suresh Kumar Kait and Justice Manoj Jain was of the view that the question of the victim being minor at the relevant period stood established beyond dispute.

 

“We need not remind ourselves that we are dealing with a matter where a daughter has been raped by her own father inside her own house, not once but repeatedly. As per the case of prosecution, she was hardly 10 years old when she was sexually assaulted for the first time”, the Division Bench said.

 

On the impact of delay in reporting the matter, the Bench opined that if delay is explained in satisfactory manner, then Court can always disregard and condone the same, provided the testimony of the victim is also found to be of sterling quality. As per the Bench, though the mother was conscious of the sexual assault upon her daughter but she must be in a fix as the perpetrator was her husband. She reasoned with him but to no avail. Quite possibly, she kept mum as she did not want to jeopardize her own matrimonial life without realizing the eventual adverse consequences of her inaction upon the body and soul of her daughter. “In a patriarchal set up, which is still very much predominant in our country, such matters are either not reported at all or reported when it is beyond the tolerance of the victim”, it added while also observing that the Therefore, delay couldn’t be said to be fatal in such circumstances.

 

The Bench was unable to find out any angle of false implication.

 

The High Court was also mindful of the fact that the victim was hardly 12 years of age when she rushed to police station all by herself and in such a situation when her testimony was recorded in the Court, almost, after one year, slight variations are, even otherwise, expected. The duty of the Trial Court is to minutely analyze the evidence with full sensitivity and then to come to a conclusion whether the contradictions are grave enough, rendering the prosecution version improbable.

 

The Bench also didn’t find the testimony of the victim to be uninspiring or untrue from any angle whatsoever. The contradictions, inter se the testimony of victim, her mother and brother, were found to be inconsequential.

 

It was opined that since the present prosecution was with respect to commission of offence under Section 5 of POCSO Act also, it was obligatory for the Court to have presumed that the person had committed such offence, unless the contrary was proved. The second presumption was rather much more rigorous. In terms of Section 30 of POCSO Act, if for any particular offence, the prosecution is required to establish culpable mental state (which also includes motive) on the part of the accused, the Court is, again, under obligation to presume the existence of such mental state though it shall be a defence for the accused to prove that he had no such mental state. In view of the aforesaid statutory presumptions and since the foundational facts had been duly proved by the prosecution, the burden was, unmistakably, on the accused to prove to the contrary.  In view of such statutory presumptions and since the foundational facts had been duly proved by the prosecution, the burden was, unmistakably, on the accused to prove to the contrary. 

 

The testimony of the victim herein was sufficient in itself to bring home the charges as her testimony inspired full confidence and there was no reason whatsoever to suspect or distrust her.

 

“The wrongdoer was not any outsider or stranger. Victim must have thought that she would find a monastery in the lap of her father. Little did she realize that he was rather a monster”, the Bench said and also noted, “Therefore, in view of apparent compelling reason that the finding recorded in order of acquittal is contrary to the evidence, we have no hesitation in reversing the same.”

 

Thus, the Bench held the respondent (PDD) guilty for commission of offences punishable under Section 6 of POCSO Act and Sections 506 and 323 IPC. Listing the matter on 24.05.2024 for arguments on sentence, the High Court ordered that a report on interim compensation to be paid to the victim be placed by the next date of hearing.

Services of lawyers excluded from consumer protection law: Top Court overrules NCDRC’s order upholding maintainability of complaint under Consumer Protection Act alleging deficiency in service rendered by lawyers
Justices Bela M. Trivedi & Pankaj Mithal [14-05-2024]

Read Order: BAR OF INDIAN LAWYERS THROUGH ITS PRESIDENT JASBIR SINGH MALIK AND ORS v. D. K. GANDHI PS NATIONAL INSTITUTE OF COMMUNICABLE DISEASES AND ANR [SC- CIVIL APPEAL NO. 2646 OF 2009]

 

Tulip Kanth

 

New Delhi, May 15, 2024: In a landmark ruling, the Supreme Court has set aside an order of the NCDRC whereby it was held that in respect of deficiency in service rendered by the lawyers, a complaint under Consumer Protection Act, 1986 would be maintainable. The Apex Court has held that a service hired or availed of an Advocate is a service under “a contract of personal service” and would fall within the exclusionary part of the definition of “Service” contained in Section 2 (42) of the Consumer Protection Act, 2019.

 

 

The Division Bench of Justice Bela M. Trivedi and Justice Pankaj Mithal was considering the issue of whether a complaint alleging “deficiency in service” against Advocates practicing the Legal Profession, would be maintainable under the Consumer Protection Act, 1986 as re-enacted in 2019. 

 

The factual background of the case was such that the appellant, an Advocate by profession, was hired by the respondent D.K. Gandhi as an advocate for filing a Complaint in the Court of Metropolitan Magistrate, Tis Hazari Court, Delhi, against one Kamal Sharma under Section 138 of the Negotiable Instruments Act.

 

During the course of the said complaint case, the accused agreed to pay the sum of Rs.20,000/- for the dishonoured cheque besides Rs.5,000/- as the expenses incurred by the complainant. It was alleged by the respondent (complainant) that though the appellant had received from the accused the DD/pay order for Rs.20,000/- and the crossed cheque of Rs.5,000/- on behalf of the respondent, the appellant did not deliver the same to the respondent and instead demanded Rs.5,000/- in cash from the respondent. 

 

Subsequently, the appellant gave the DD/pay order for Rs.20,000/- and cheque for Rs.5,000/- to the respondent, however, the payment of cheque for Rs.5,000/- was stopped by the accused at the instance of the appellant.The respondent therefore filed a complaint before the District Consumer Disputes Redressal Forum, Delhi seeking compensation of Rs. 15,000/- in addition to the amount of cheque of Rs.5,000/-, as also Rs.10,000/- for the mental agony and harassment along with the cost. The appellant resisted the said complaint by filing a reply raising a preliminary objection to the effect that the District Consumer Forum had no jurisdiction to adjudicate the dispute raised in the complaint as the Advocates were not covered under the provisions contained in the CP Act.

 

The District Forum decided the complaint in favour of the respondent. The State Commission allowed the appellant’s appeal with the observation that the services of lawyers/advocates did not fall within the ambit of “service” defined under section 2(1)(o) of the CP Act, 1986. The NCDRC, however in the Revision Application preferred by the respondent passed the impugned order. Being aggrieved by the same, the present set of appeals was filed by the Bar of Indian Lawyers, Delhi High Court Bar Association, Bar Council of India, and the appellant M. Mathias.

 

Referring to the slight difference in the definition of ‘Deficiency’ in Section 2(1)(g) of 1986 Act and Section 2(11) of 2019 Act, Justice Trivedi opined that the definition of ‘service’ is divided into three parts – the first part is explanatory in nature and defines service to mean service of any description which is made available to the potential users; the second part is inclusionary part, which expressly includes the provision of facilities in connection with the specific services; and the third part is exclusionary part which excludes rendering of any service free of charge or under a contract of personal service.

 

On a conjoint reading of the provisions contained in Order III CPC and Chapter IV of Advocates Act pertaining to right to practice, Justice Trivedi held that an advocate whose name has been entered in the State roll is entitled as of right to practice in all Courts, however he can act for any person in any Court only when he is appointed by such person by executing the document called “Vakalatnama.” Such Advocate has certain duties to the courts, to the client, to the opponent and to the colleagues as enumerated in the Bar Council of India Rules. 

 

Noting that a considerable amount of direct control is exercised by the Client over the manner in which an Advocate renders his services during the course of his employment, Justice Trivedi stated, “All of these attributes strengthen our opinion that the services hired or availed of an Advocate would be that of a contract ‘of personal service’ and would therefore stand excluded from the definition of “service” contained in the section 2(42) of the CP Act, 2019. As a necessary corollary, a complaint alleging “deficiency in service” against Advocates practicing Legal Profession would not be maintainable under the CP Act, 2019.”

 

Thus, setting aside the order of the NCDRC, Justice Trivedi summarized the conclusions as under:

  • The very purpose and object of the CP Act 1986 as re-enacted in 2019 was to provide protection to the consumers from unfair trade practices and unethical business practices, and the Legislature never intended to include either the Professions or the services rendered by the Professionals within the purview of the said Act of 1986/2019.
  • The Legal Profession is sui generis i.e. unique in nature and cannot be compared with any other Profession.
  • A service hired or availed of an Advocate is a service under “a contract of personal service,” and therefore would fall within the exclusionary part of the definition of “Service” contained in Section 2 (42) of the CP Act 2019.
  • A complaint alleging “deficiency in service” against Advocates practicing Legal Profession would not be maintainable under the CP Act, 2019.

 

Justice Mithal concurred with the views of Justice Trivedi. He referred to the Directives of the European Parliament which bears a befitting testimony to the continuing intent of lawmakers to safeguard regulated professions from any outside interference. 

 

Justice Mithal also opined that States in the USA exempt legal professionals from consumer laws and the Australian High Court has also emphatically echoed the need for such exemption and its direct bearing on the justice delivery system.

 

“ It is, therefore, essential that the consumer protection laws in all countries may somewhat have universal application and be confined to ‘consumers’ only i.e. to the persons who buys any goods for consideration or hires or avails of any service for consideration, impliedly excluding the professional services especially that of a lawyer whose profession is sui generis”, he said while also adding “In doing so, in India also the services of professionals more particularly that of lawyers have to be excluded from consumer protection law in accordance with the intention expressed in enacting the same.”