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Substituted Rule 19 of M.P. Foreign Liquor Rules is applicable to proceedings that have commenced with issuance of demand notice in November, 2011: Supreme Court
Justices Pamidighantam Sri Narasimha & Aravind Kumar [19-04-2024]

Read Order: PERNOD RICARD INDIA (P) LTD v. THE STATE OF MADHYA PRADESH & ORS [SC- CIVIL APPEAL Nos. 5062-5099 of 2024]

 

LE Correspondent

 

New Delhi, April 22, 2024: In a case where the demand notice was issued to a sub-licensee eight months after the amendment of the Madhya Pradesh Foreign Liquor Rules, 1996 the Supreme Court has directed that the penalty to be imposed on the appellant would be on the basis of Rule 19 as substituted on March 29, 2011.

 

The appellant, in this case, is a sub-licensee under the M.P. Excise Act, 1915, for manufacture, import and sale of Foreign Liquor, regulated under the Madhya Pradesh Foreign Liquor Rules, 1996. Sub-licensees importing Foreign Liquor are granted transit permits in which the origin, quality, quantity and point of delivery of the imported liquor are recorded. 16 prescribes the permissible limits of loss of liquor in transit due to leakage, evaporation, wastage etc. The purpose and object of this Rule is to prevent illegal diversion of liquor for unlawful sale and also to prevent evasion of excise duty. At the point of destination, the consignment is verified for quality and quantity, and a certificate under Rule 13 is granted. 

 

Rule 19 providing for a penalty that could be imposed during the relevant license period of 2009-2010 was about four times the maximum duty payable on foreign liquor. It was clear from the facts that no action was initiated during the license year of 2009-2010. On 29.03.2011, Rule 19 was substituted by an amendment. Substituted Rule 19 reduces penalty from four times the maximum duty payable to an amount not exceeding the duty payable on foreign liquor.

 

Eight months after the amendment, a demand notice was issued directing payment of penalty for exceeding the permissible limits during the license year 2009- 2010. The notice demanded a penalty of four times the duty as per the old Rule 19. The appellant replied that penalty could only be under the substituted Rule 19 as the old rule stood repealed and the demand was raised after the substituted Rule came into force.

 

The Deputy Commissioner rejected the objections and confirmed the demand for payment of penalty at four times the duty payable. The Deputy Commissioner’s order was upheld by the Excise Commissioner and thereafter by the Revenue Board Gwalior .

 

The appellant’s writ petition before the High Court was disposed of with 40 other petitions raising a similar issue. The Single Judge was of the view that the new Rule was introduced by way of a substitution and the old Rule stood repealed from the statute book and only the substituted Rule applied to all pending and future proceedings. The orders of the statutory authorities were set aside and the matter was remanded to them for determining the penalty as per the substituted Rule.

 

The Division Bench of the High Court reversed  the decision of the Single Judge on the simple ground that as the license was granted for one year, the Rule that existed during that license year must apply.

 

At the outset, the Top Court observed that a repealed provision will cease to operate from the date of repeal and the substituted provision will commence to operate from the date of its substitution. This principle is subject to specific statutory prescription. Statute can enable the repealed provision to continue to apply to transactions that have commenced before the repeal. Similarly, a substituted provision which operates prospectively, if it affects vested rights, subject to statutory prescriptions, can also operate retrospectively.

 

It was further observed that the legislative authorization enabling the executive to make rules prospectively or retrospectively is crucial. Without a statutory empowerment, subordinate legislation will always commence to operate only from the date of its issuance and at the same time, cease to exist from the date of its deletion or withdrawal. 

 

On the issue of rule-making power under the M.P. Excise Act, 1915, the Division Bench of Justice Pamidighantam Sri Narasimha & Justice Aravind Kumar opined that Section 63 only enables the government to issue subordinate legislation with effect from such a date as may be specified. Moreover, Rule 19 which has been substituted on 29.03.2011 has not been notified to operate from any other date by the Government.

 

“Subordinate legislation, by its very nature, rests upon the executives understanding of the primary legislation. When a Court is of the opinion that such an understanding is not in consonance with the statute, it sets it aside for being ultra-vires to the primary statute”, the Bench added.

 

It was observed that if the amendment by way of a substitution in 2011 is intended to reduce the quantum of penalty for better administration and regulation of foreign liquor, there is no justification to ignore the subject and context of the amendment and permit the State to recover the penalty as per the unamended Rule. The subject of administration of liquor requires close monitoring and the amendment must be seen in this context of bringing about good governance and effective management. 

 

 

“Seen in the principle of Section 10 of MP General Clauses Act, 1957, relating continuation of a repealed provision to rights and liabilities that accrued during the subsistence of the Rule does not subserve the purpose and object of the amendment”, it held.

 

The Bench also made it clear that the Rule operates retroactively and thus saves it from arbitrarily classifying the offenders into two categories with no purpose to subserve.Rejecting the reasoning of the single Judge as well as the Division Bench, the Bench underscored the importance of a simple and plain understanding of laws and its processes, keeping in mind the purpose and object for which they seek to govern and regulate us.

 

Allowing the appeals, the Bench held that the penalty to be imposed on the appellants will be on the basis of Rule 19 as substituted on 29.03.2011.

 

Women SSC Officers of Indian Air Force entitled to notional increments in pension between date of release and date on which they were deemed to have completed 20 years of service, clarifies Top Court
Chief Justice D.Y. Chandrachud, Justices J.B. Pardiwala & Manoj Misra [15-04-2024]

Read Order:Wg Cdr A U Tayyaba (retd) & Ors v. Union of India & Ors [SC- Miscellaneous Application No of 2024 (D No 8208 of 2024)]

 

Tulip Kanth

 

New Delhi, April 22, 2024:In a clarificatory order, the Supreme Court has held that the pensionary payments to be made to women Short Service Commissioned Officers (SSCOs) of the Indian Air Force have to be computed on the basis of the salary on the date of the deemed completion of 20 years.

 

These proceedings, before the Top Court, arose from a judgment dated November 16, 2022 whereby it was directed that the women SSCO would be considered for the grant of one-time pensionary benefits on the basis that they had completed the minimum qualifying service required for pension.

 

It was also held therein that the officers who would be found eligible for the grant of pensionary benefits in terms of the present direction shall not be entitled to any arrears of salary, but the arrears of pension shall be payable with effect from the date on which the officers are deemed to have completed twenty years of service.

 

It was in terms of these directions that the Union government issued Pension Payment Orders (PPOs) for the officers.

 

While the proceedings were going on, it was brought to the Court’s attention that the women officers were released from service at the end of the fourteenth year and the salary for the purpose of computing the pension was taken as the last drawn salary as of the date of the release. No increments had been granted to the applicants between the date of release and the date on which they were deemed to have completed twenty years service in terms of the judgment of the Top Court dated November 16, 2022.

 

It was the case of the applicants that the authorities had not correctly interpreted the operative directions. It was submitted that once the applicants had been treated to have completed the minimum qualifying service required for pension, the last drawn salary must be taken as on that date and increments have to be computed for pension.

 

It was noticed by the 3-Judge Bench of Chief Justice D.Y. Chandrachud, Justice J.B. Pardiwala & Justice Manoj Misra that the first direction which was issued by the Top Court was that all the women Short Service Commissioned Officers (SSCOs) governed by the batch of cases would be considered for the grant of one time pensionary benefits on the basis that they have completed the minimum qualifying service required for pension. The minimum qualifying service for pension is 20 years.

 

The Bench thus directed:


 

  • The pensionary payments would have to be computed on the basis of the salary on the date of the deemed completion of twenty years; and 
  • The women SSCOs would be entitled to notional increments between the date of release and the date on which they have completed the minimum qualifying period for pension, namely, the deemed completion of twenty years.

 

The Bench also made it clear that the one-time pensionary payment due in terms of the judgment dated November 16, 2022 shall be revised and arrears that remain due and payable shall be paid on or before June 15, 2024.

 

On the issue of the computation of the commuted value of the pensionary payment, the Bench held that the commuted value shall be computed as on the date of the deemed completion of twenty years. The commutation factor will be that which was applicable on the date of the deemed completion of twenty years. The arrears that remain to be paid have to be paid over on or before June15, 2024.

 

As regards the encashment of annual leave, the Bench said, “...In the event that any of the officers is found to have accumulated the maximum of 300 days in respect of which encashment is allowable, the difference between the encashable quantum of 300 days and the amount which has already been released shall be computed and paid over on or before 15 June 2024.”

 

The officers governed by this batch and other similarly placed officers have also been held entitled to ECHS benefits as retired officers.

Top Court confirms DRT's decision of setting aside auction sale where mandatory notice of 30 days as prescribed under Security Interest (Enforcement) Rules, 2002 was not given by bank to borrower
Justices Vikram Nath & Satish Chandra Sharma [18-04-2024]

Read Order: GOVIND KUMAR SHARMA & ANR v. BANK OF BARODA & ORS [SC- CIVIL APPEAL NO. 5028 OF 2024]

 

LE Correspondent

 

New Delhi, April 22, 2024:  In a case where the Bank of Baroda had not followed the statutory procedure prescribed under the Security Interest (Enforcement) Rules, 2002, by not issuing the notice to the borrower as required under Rules 8(6) and 8(7), the Supreme Court has upheld the decision of the Debt Recovery Tribunal (DRT) to set aside the sale.

 

The firm-respondent no.3, in this case, had taken a loan from the respondent no.1-Bank. However, as it went into default, the Bank initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). In the said recovery proceedings, the Recovery Officer conducted an open auction. The appellants were the highest bidder. Their bid was accepted and they made good the deposits as per the terms of this auction. Accordingly, a sale certificate was issued. 

 

The appellants were tenants of the borrower in the premises in question which had been put to auction. As such the status of the appellants changed from that of tenants to that of owners after the sale was confirmed. The borrower-respondent nos.3 and 4 filed a securitization application under Section 17 of the SARFAESI Act for setting aside the sale on the ground that  notice as required under Rules 8(6) and 8(7) prescribed under the Security Interest (Enforcement) Rules, 2002. 

 

The DRT, after examining the matter, came to the conclusion that the Bank itself had admitted that the statutory compliance under the above rules had not been made and as such proceeded to set aside the sale.

 

In effect the DRT, after setting aside the sale, further proceeded to direct the Bank to refund the auction money with interest only after receiving possession of the property from the auction purchaser within 15 days thereof. The borrower was directed to pay the dues of the Bank within 15 days with up to date interest, failing which the Bank would be at liberty to proceed further under the SARFAESI Act for recovery of its dues.

 

The appellants preferred an appeal before the DRAT which came to be dismissed. Thereafter the appellants approached the High Court by way of a Writ Petition which was dismissed by the impugned judgment and order, giving rise to the appeal before the Top Court.

 

In view of the concurrent finding based on the admission by the Bank that mandatory notice of 30 days was not given to the Borrower before holding the auction/sale, the Division Bench of Justice Vikram Nath & Justice Satish Chandra Sharma opined that the setting aside of the auction/sale couldn't be faulted with and the same had to be approved.

 

As per the Bench, once the sale is set aside, the status of the appellants as owners would automatically revert to that of tenants. The status of possession at best could have been altered from that of an owner to that of tenants but Bank would not have any right to claim actual physical possession from the appellants nor would the appellants be under any obligation to handover physical possession to the Bank. The DRT fell in error on the said issue. Therefore, the Bench held that the direction issued by the DRT that the Bank will first take possession and thereafter refund the auction money with interest applicable to fixed deposits, was not a correct direction.

 

It was further observed that as of date the dues of the Bank had been fully discharged and an additional amount of the auction money was lying with the Bank since 2009. This amount was to be returned to the appellants. In such facts and circumstances of the case, the Bench opined that rate of interest on the auction money had to be enhanced.

 

“Considering the fact that the money of the Bank is also public money, we feel that interest of justice would be best served if the auction money with 12 per cent per annum compound interest is returned to the appellants. Such interest be calculated from the date of deposit till the date it is actually paid”, it added.

 

There was some dispute between the Bank and the borrower that there could be minor adjustments still left.It was observed by the Bench that if any additional amount is lying with the Bank, the same would be returned to the borrower and if any amount is still due to be paid, the borrower would pay the said amount to the Bank. The Bank and the borrower had both agreed to make the said adjustments.

 

Thus, affirming the decision of setting aside of the auction sale, the Bench held that the status of the appellants as tenants shall stand restored leaving it open for the borrower as owner of the property to evict the appellants in accordance to law.The entire auction/sale money lying with the Bank (R-1 & 2) has been asked to be returned to the appellants along with compound interest @12 per cent per annum to be calculated from the date of deposit till the date of payment.

 

Lastly, the Bench concluded the matter by observing, “The Borrower Respondent nos.3 and 4 and the Bank–Respondent nos.1 and 2, would streamline their accounts and the Bank upon settlement of the same will issue a No Dues Certificate to the Borrower.”

Special Court presided by Sessions Judge or Additional Sessions Judge will have jurisdiction to try complaint under IBC, clarifies Apex Court
Justices B.R. Gavai & Sandeep Mehta [19-04-2024]

Read Order: INSOLVENCY AND BANKRUPTCY BOARD OF INDIA v. SATYANARAYAN BANKATLAL MALU & ORS [SC- CRIMINAL APPEAL NO. 3851 OF 2023]

 

Tulip Kanth

 

New Delhi, April 22, 2024: The Supreme Court has held that the Single-Judge Bench of the Bombay High Court grossly erred in quashing a complaint filed by the Insolvency and Bankruptcy Board of India under Section 236 of the Insolvency and Bankruptcy Code, 2016 only on the ground that it was filed before a Special Court presided by a Sessions Judge.

 

The facts of the case suggested that M/s. SBM Paper Mills Private Limited (Corporate Debtor) had filed a petition on under Section 10 of the Insolvency and Bankruptcy Code, 2016 for initiation of the Corporate Insolvency Resolution Process (CIRP) of itself. The National Company Law Tribunal, Mumbai Bench (NCLT) admitted the Petition and appointed Amit Poddar as the Interim Resolution Professional (RP) to carry out the functions as prescribed under the provisions of the Code.

 

In the meanwhile, Satyanarayan Malu, i.e., the Respondent/Ex-Director of the Corporate Debtor filed an application before the NCLT under Section 12A for the withdrawal of the aforesaid petition under Section 10 in light of a One Time Settlement (OTS) entered into with the sole Financial Creditor, i.e., Allahabad Bank. On the other hand, the RP had also filed an application for the approval of the Resolution Plan. The NCLT allowed the application of the Respondent.

 

However, on account of non-compliance of the terms of the OTS by the Respondents, the NCLT issued a Show-Cause Notice against them. The Appellant-Board filed a Complaint against the Respondents before the Sessions Judge for offences punishable under Section 73(a) and 235A for the non-compliance of the terms of the OTS and for not having filed the application under Section 12A through the RP. The Sessions Judge directed issuance of process against the Respondents and further directed them to be summoned on the next date of hearing.

 

Being aggrieved thereby, the Respondents filed a Writ Petition before the Bombay High Court, praying for the quashing of the order passed by the Sessions Judge for the want of jurisdiction. The High Court allowed the Writ Petition. Hence, the appeal was filed before the Top Court.

 

It was the case of the petitioners that the reasoning given by the Single Judge that the offences other than the Companies Act cannot be tried by the Special Court consisting of Sessions Judge or Additional Sessions Judge was totally in ignorance of the provisions of sub-section (1) of Section 236 of the Code.The petitioner contended that the Single Judge had grossly erred in holding that, in view of the Companies (Amendment) Act, 2017, only the offences committed under the Companies Act can be tried by Special Court consisting of Sessions Judge or Additional Sessions Judge.

 

At the outset, the Division Bench of Justice B.R. Gavai and Justice Sandeep Mehta referred to Section 236(1) of the Code which provides that the offences under the Code shall be tried by the Special Court established under Chapter XXVIII of the Companies Act, 2013.

 

The Bench made it clear that that Section 435 of the Companies Act, 2013 as it originally existed, provided for only one class of Special Courts i.e. a person holding office of a Sessions Judge or an Additional Sessions Judge and all offences under the Companies Act, 2013 were required to be tried by such Special Courts. By the 2018 Amendment, two classes of Special Courts were established. The first class of Special Courts comprised of an officer holding the office as Sessions Judge or Additional Sessions Judge, whereas the second class of Special Courts comprised of Metropolitan Magistrate or a Judicial Magistrate of the First Class. The offences punishable under the Companies Act with imprisonment of two years or more were required to be tried by a Special Court comprising of Sessions Judge or Additional Sessions Judge, whereas all other offences i.e. the offences punishable with imprisonment of less than two years were to be tried by a Special Court comprising of Metropolitan Magistrate or the Judicial Magistrate of the First Class.

 

Another issue to be considered was whether the Special Court under the Code would be as provided under Section 435 of the Companies Act as it existed at the time when the Code came into effect, or it would be as provided under Section 435 of the Companies Act after the 2018 Amendment. The Bench observed that the answer to that question would depend upon as to whether the reference to Special Court established under Chapter XXVIII of the Companies Act, 2013 in Section 236(1) of the Code is a legislation by incorporation or a legislation by reference. If it is held that it is a legislation by incorporation, then the subsequent amendments would not have any effect on the Code and the Special Court would continue to be as provided under Section 435 of the Companies Act, as it existed when the Code came into effect. Per contra, if it is held that it is a legislation by reference then the subsequent amendments would also be applicable to the Code and the Special Courts would be as provided under Section 435 of the Companies Act after its amendment by the 2018 Amendment.

 

Noting that under Section 236(1) of the Code, reference is offences under this Code shall be tried by the Special Court established under Chapter XXVIII of the Companies Act, 2013, the Bench opined that the reference is not general but specific. The reference is only to the fact that the offences under the Code shall be tried by the Special Court established under Chapter XXVIII of the Companies Act.

 

Since the reference is specific and not general, the Bench observed the present case is a case of legislation by incorporation and not a case of legislation by reference. The effect would be that the provision with regard to Special Court has been bodily lifted from Section 435 of the Companies Act, 2013 and incorporated in Section 236(1) of the Code. This would mean that the provision of Section 435 of the Companies Act, 2013 with regard to Special Court would become a part of Section 236(1) of the Code as on the date of its enactment. If that be so, any amendment to Section 435 of the Companies Act, 2013, after the date on which the Code came into effect would not have any effect on the provisions of Section 236(1) of the Code. The Special Court at that point of time only consists of a person who was qualified to be a Sessions Judge or an Additional Sessions Judge.

 

 

Further noticing that Section 236(1) of the Code wasn’t amended, the Bench stated that the provision with regard to the reference in Section 236(1) of the Code pertaining to Special Court as mentioned in Section 435 of the Companies Act, 2013 stood frozen as on the date of enactment of the Code. As such, the Judge of the High Court had erred in holding that in view of the subsequent amendment, the offences under the Code shall be tried only by a Metropolitan Magistrate or a Judicial Magistrate of the First Class.

 

“In any case, the learned single Judge of the High Court has grossly erred in quashing the complaint only on the ground that it was filed before a Special Court presided by a Sessions Judges. At the most, the learned single judge of the High Court could have directed the complaint to be withdrawn and presented before the appropriate court having jurisdiction”, it held.

 

Thus, allowing the appeal, the Bench quashed the impugned judgment of the Single Judge and said, “It is held that the Special Court presided by a Sessions Judge or an Additional Sessions Judge will have jurisdiction to try the complaint under the Code. However, since the learned single judge of the High Court has not considered the merits of the matter, the matter is remitted to the learned single judge of the High Court for considering the petition of the respondents afresh on merits.”

SC dismisses State’s appeal in commercial dispute where FIR was quashed by Rajasthan HC, says State of Arunachal Pradesh ought to have been happy getting rid of an unnecessary criminal case
Justices Vikram Nath & K.V. Viswanathan [18-04-2024]

Read Order: THE STATE OF ARUNACHAL PRADESH & ORS v. KAMAL AGARWAL & ORS. ETC [SC- CRIMINAL APPEAL NOS. 2136-2138 OF 2024]


 

LE Correspondent

 

New Delhi, April 22, 2024: The Supreme Court has dismissed an appeal filed by the State of Arunachal Pradesh in a case alleging that the accused persons were not willing to execute the sale deed for which they had taken the sale consideration of Rs 1 crore. The Top Court opined that the matter at hand was not a case of cheating and the Rajasthan High Court had rightly proceeded to quash the proceedings on the ground that no part of the cause of action had arisen in the State of Arunachal Pradesh.

 

 

The facts of the case were such that M/s Shiv Bhandar, the proprietorship concerned transferred an amount of Rs.1 Crore in the year 2016 in the account of Chandra Mohan Badaya, two of his proprietorships concerned and Rajesh Natani in four equal transactions of 25 lakhs each. According to the appellant Chandra Mohan Badaya, the amount was transferred as a loan, however, according to the complainant the said payments were made for purchase of land/building situated in Jaipur, Rajasthan. There was no written agreement with respect to the purpose of the transfer of said amount, whether it was a loan or an advance towards purchase of land/building referred to above.

 

According to Chandra Mohan Badaya, out of Rs.75 lakhs received by him and his two concerns, he repaid Rs.37 lakhs to the complainant from his personal and proprietorship accounts by way of bank transfer. This amount was repaid in 2016-2017. Further, according to Chandra Mohan Badaya, he executed two sale deeds with respect to two properties in favour of wife, sister-in-law and Power of Attorney holder of the complainant proprietor. Although the total sale consideration for both the sale deeds was Rs.1.08 Crores out of which an amount of Rs.27 lakhs each i.e. total Rs.54 lakhs only was received by the petitioner. These sale deeds were of the year 2016. It was much after all these transactions that the FIR in question was lodged in 2017 and chargesheet was submitted against eight persons.

 

On the basis of the said chargesheet, cognizance was taken by the Chief Judicial Magistrate and a case was registered. Thereafter, two sets of petitions were filed before two different High Courts namely Gauhati High Court and Rajasthan High Court.

 

The Gauhati High Court dismissed the petitions for quashing on the finding that no exceptional circumstances existed calling for quashing of the proceedings. Whereas, the Rajasthan High Court proceeded to quash the proceedings on the ground that no part of the cause of action had arisen in the State of Arunachal Pradesh rather entire cause of action was in the state of Rajasthan, hence, the Police/Court in Arunachal Pradesh lacked territorial jurisdiction to entertain the FIR and all subsequent proceedings.

 

The appeals before the Top Court arose out of the First Information Report (FIR) under section 420/120B/34 Indian Penal Code, 1860 (IPC) lodged by Anil Agarwal attorney holder for Okep Tayeng, the proprietor of M/s Shiv Bhandar. The complainant M/s Shiv Bhandar had not come forward to challenge the order of the Rajasthan High Court. It was the State of Arunachal Pradesh which had challenged the order of the Rajasthan High Court.

 

The Division Bench of Justice Vikram Nath & Justice K.V. Viswanathan took note of the fact that the reason for lodging the FIR was that the accused persons were not willing to execute the sale deed for which they had taken the sale consideration of Rs.1 Crore.

 

The Bench opined that the matter was purely civil in nature. It was a case of money advancing for which no written document was executed to indicate its purpose or import as such whether it was a loan advance or an advance payment for transfer of property being land/building situated in Jaipur, was not borne out from any records. Such claim of the complainant that it was for transfer of property for land/building prescribed above, would be a matter of evidence to be led and established in the Court of law rather than the police investigating the same and finding out, the Bench added.

 

It was not the case of the complainant as stated in FIR that the plot/land as alleged by them which was to be transferred to them did not exist or had been sold or transferred to somebody else and therefore, there was an element of cheating by the accused persons. The Bench was of the view that if the accused persons were not transferring the land and if the complainant could establish an agreement/contract with respect to the same in a Court of law, it ought to have filed a civil suit for appropriate relief. 

 

Noting that the Appellant Chandra Mohan Badaya had already explained as to how he had already repaid Rs.37 lakh through bank transaction and also transferred two properties worth more than Rupees One Crore. All these aspects could be thrashed out before a competent Civil Court. As per the Bench, it could not be said to be a case of cheating.

 

“The High Court of Rajasthan had rightly found as a matter of fact considering all aspects of the matter that the offence, if any, although according to us, no offence is made out, would be within the territorial jurisdiction of Rajasthan and not Arunachal Pradesh. The State of Arunachal Pradesh ought to have been happy getting rid of an unnecessary Criminal Case being registered and tried in Arunachal Pradesh Why the State of Arunachal Pradesh has approached this Court is also a question to be answered by the said State when the complainant in a matter relating to civil/commercial dispute is not coming forward to defend its FIR which has been quashed by the Rajasthan High Court”, it asserted.

 

Thus, the Bench quashed the entire FIR and the consequential proceedings thereto.The Rajasthan High Court, in the subsequent petition moved by Pawan Agarwal, has after noticing the proceedings initiated in Gauhati High Court had given relief to Pawan Agarwal and other respondents on the ground that no cause of action arose in Arunachal Pradesh. 

 

Finding the dispute to be of a civil nature and having quashed the FIR, the Bench held, “Hence, in exercise of the power under Article 136 of the Constitution of India we are not inclined to disturb the findings in favour of Pawan Agarwal in SB Criminal Writ Petition No. 989/2022 by Rajasthan High Court. Once proceedings are being quashed against all the other accused named in the FIR and in the chargesheet and considering the nature of findings we have recorded, proceedings against Pawan Agarwal cannot alone continue.”

Magistrate ought to have treated Protest Petition as a complaint when reliance was also placed upon affidavits of witnesses, clarifies Top Court
Justices Vikram Nath & Satish Chandra Sharma [18-04-2024]

Read Order: MUKHTAR ZAIDI v. THE STATE OF UTTAR PRADESH & ANR [SC- CRIMINAL APPEAL NO. 2134 OF 2024]

 

Tulip Kanth

 

New Delhi, April 22, 2024: In a case where the Magistrate rejected the police report under Section 173(2) Cr.P.C. and further directed that the matter would continue as a State case, the Supreme Court has opined that the right of the Complainant to file a petition under Section 200 Cr.P.C. is not taken away even if the Magistrate concerned does not direct that a Protest Petition be treated as a complaint.

 

The facts of the case suggested that Respondent no.2 lodged a First Information Report (FIR) under Sections 147, 342, 323, 307, 506 of the Indian Penal Code, 1860 and after investigation, the police report under Section 173(2) Cr.P.C. was submitted according to which the Investigating Officer found that no evidence could be collected which could substantiate the allegations made in the FIR. The said report was submitted to the Court concerned whereupon notices were issued to the informant.

 

The informant filed a Protest Petition along with affidavits to show that the investigation carried out by the Investigating Officer was not a fair investigation. He had completed the case diary sitting at the Police Station without actually recording the statements of the witnesses. The CJM rejected the police report under Section 173(2) Cr.P.C. and further proceeded to take cognizance for offences under Sections 147, 342, 323, 307, 506 of the IPC and under Section 190 (1) (b) of the Cr.P.C. and also directed that the matter would continue as a State case.

 

Accordingly, it summoned the accused. This order of cognizance and summoning the present appellant was assailed before the Allahabad High Court by way of a petition under Section 482 Cr.P.C but the same was dismissed. Aggrieved thereby, the appellant approached the Top Court.

 

The Counsel appearing for the appellant submitted that the CJM as also the High Court fell in error in taking cognizance under Section 190(1)(b) Cr.P.C. in as much as the CJM had relied upon not only the Protest Petition which was supported by the affidavit of the complainant but also on the affidavits of witnesses which were filed along with the Protest Petition to support the contents of the complaint. The submission was that once the CJM was relying upon additional material in the form of evidence produced by the complainant along with the Protest Petition then the only option for the CJM was to treat it as a complaint under Section 200 Cr.P.C. and proceed accordingly. The said case could not have been continued as a State case and should have been treated as a private complaint.

 

It was the case of the Complainant – respondent no.2 & the State that the CJM did not take into consideration any additional evidence filed in the form of affidavits along with the Protest Petition and had only relied upon the material collected during the investigation as contained in the case diary and based upon the same the satisfaction recorded by the CJM to reject the police report and take cognizance was well within his domain and such cognizance would fall within Section 190(1)(b) Cr.P.C.

 

After examining the order passed by the CJM taking cognizance and summoning the police, the Division Bench of Justice Vikram Nath & Justice Satish Chandra Sharma found that the CJM had actually taken into consideration not only the Protest Petition but also the affidavit filed in support of the Protest Petition as well as the four affidavits of witnesses filed along with the Protest Petition. It was based on consideration of such affidavits that the CJM was of the view that the investigation was not a fair investigation and these affidavits made out a prima facie case for taking cognizance and summoning the accused.

 

Reliance was placed upon the judgement in Vishnu Kumar Tiwari vs. State of Uttar Pradesh, through Secretary Home, Civil Secretariat, Lucknow & Anr., wherein it was observed that if a Protest Petition fulfills the requirements of a complaint, the Magistrate may treat the Protest Petition as a complaint and deal with the same as required under Section 200 read with Section 202 of the Code.

 

“The net result is that the Magistrate in the present case ought to have treated the Protest Petition as a complaint and proceeded according to Chapter XV of the Cr.P.C”, the Bench said.

 

Noting that the Magistrate also had the liberty to reject the Protest Petition along with all other material which may have been filed in support of the same, the Bench held that in that event the Complainant would be at liberty to file a fresh complaint. The right of the Complainant to file a petition under Section 200 Cr.P.C. is not taken away even if the Magistrate concerned does not direct that such a Protest Petition be treated as a complaint.

 

As the Magistrate had already recorded his satisfaction that it was a case worth taking cognizance and fit for summoning the accused, the Bench was of the view that the Magistrate ought to have followed the provisions and the procedure prescribed under Chapter XV of the Cr.P.C.

 

Thus, allowing the appeal and setting aside the impugned orders, the Bench held, “However, we leave it open for the Magistrate to treat the Protest Petition as a complaint and proceed in accordance to law as laid down under Chapter XV of the Cr.P.C.”

Bhopal Municipal Corporation bound as allottee of State to utilise land, ought to have taken steps for removal of illegal possession of plaintiff: Top Court confirms order setting aside award mandating plaintiff to pay Rs 30 lakh to BMC
Justices Vikram Nath & K. V. Viswanathan [18-04-2024]

Read Order: THE STATE OF MADHYA PRADESH v. SATISH JAIN (DEAD) BY LRS & ORS [SC- CIVIL APPEAL NO. 6884 OF 2012]

 

 

LE Correspondent

 

New Delhi, April 19, 2024: While invalidating an agreement whereby it was agreed upon by the parties that the plaintiff would vacate the suit land, allowing the Bhopal Municipal Corporation (BMC) to construct the bus stand and in lieu, separate plots would be allotted to the plaintiff, the Supreme Court has observed that the BMC ought to have taken appropriate steps for removal of the “totally unauthorised and illegal” possession by the plaintiff.

 

The facts of the case were that Satish Jain s/o Dayanand Jain instituted a civil suit impleading one Rama s/o Parasram as defendant No.1 and State of Madhya Pradesh through Collector, Bhopal as defendant No.2 praying for a decree of declaration, permanent injunction and mandatory injunction. The basis of the claim was that the property in dispute was owned by the State of Madhya Pradesh. However, defendant No.1 was enjoying continuous and peaceful adverse possession over the suit land for the last 50-60 years and as such has perfected his rights by adverse possession and had become the owner of the land.

 

The plaintiff was compelled to institute the suit for declaration, permanent injunction and mandatory injunction when it came to light that defendant No.1 was likely to transfer the said land again in favour of the 3rd party and he also came to know that some officers and employees of the State (defendant No.2) had visited the suit land and tried to remove the fencing. The Trial Court decreed the suit ex-parte. The State preferred an appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) which was dismissed on the ground of delay of 8 days only by the IVth Additional District Judge, Bhopal.

 

The State preferred a civil revision before the High Court which was allowed. It also condoned the delay of 8 days after allowing the application for condonation of delay, and further directed the Appellate Court to hear the parties on merits and decide the appeal in accordance with law. The said appeal was allowed and the case was remanded to the Trial Court for deciding the same on merits

In the meantime, it appears that the suit land was allotted to the Bhopal Municipal Corporation (BMC) for constructing a bus stand. It was also alleged that some allotments were made by BMC in favour of the plaintiff but they were later on cancelled. There was an agreement dated 30.07.1991 entered between BMC and the plaintiff that the plaintiff would vacate the suit land, allowing the BMC to construct the bus stand, and in lieu, separate plots would be allotted to the plaintiff.

 

Further, BMC was impleaded as defendant No.3. BMC filed an application under Section 89 of the CPC stating that under the agreement, the plaintiff be directed to pay Rs 30 lakh against the value of the allotted land. It was further stated that in case the full amount is deposited, BMC is ready to fulfil its obligations. It therefore prayed that the parties may be relegated to a Mediator/Arbitrator for settlement of the dispute under Section 89 CPC.

The Trial Court referred the matter to the arbitrator and it was held that the plaintiff would pay Rs 30 lakh to BMC and such lease rent as maybe determined, and in turn the BMC would fulfil its obligation of allotment of land. The Appellant-State of Madhya Pradesh filed objections. The Trial Court allowed the same. Aggrieved by such judgment, the plaintiff preferred a civil revision, which had since been allowed by the impugned order, giving rise to the present appeal before the Top Court.

 

The Division Bench of Justice Vikram Nath & Justice K. V. Viswanathan noted the admitted position that the suit is still pending before the Trial Court. The plaintiff had not been granted any declaration as such till date. The ex-parte decree having been set aside, there was no occasion for the plaintiff to further act upon the agreement since no rights had crystallized to the parties.

 

The basis of that agreement was the ex-parte decree of declaration and injunction in favour of the plaintiff. “Once the ex- parte decree has itself been set aside and the suit was to proceed further from the stage of filing of written statement by the Appellant- State, the agreement dated 30.07.1991 would lose all its credibility assuming there was any semblance of any right to enter into the agreement. The application filed by BMC under Section 89 CPC was also not maintainable based on the agreement of 30.07.1991. There appears to be some kind of collusion between BMC and the plaintiff”, the Bench held.

 

Whether or not there was any condition in the agreement dated 30.07.1991 for appointment of Arbitrator, the very basis of entering into the agreement having been set aside, the agreement itself could not have been relied upon by any of the parties, it added.

 

Noting that the suit land was owned by the Appellant-State, the Bench opined that even if the State had allotted it to BMC for constructing a bus stand, BMC could not have dealt with it and treated it to be in the ownership or possession of the plaintiff by entering into the agreement dated 30.07.1991. BMC would be bound as an allottee of the State to utilise the said land for the purpose for which it was given. As per the Bench, BMC ought to have taken appropriate steps for removal of possession of the plaintiff which under law was totally unauthorised and illegal.

 

The agreement in question clearly mentioned that the plaintiff was claiming right under the ex-parte decree and the dismissal of the First appeal. Later on when both the orders had been set aside and the suit itself was to proceed from the stage of the Appellant-State filing its written statement, the agreement itself would not have any sanctity in the eye of law even inter se parties. The right created in the plaintiff under the ex-parte decree stood extinguished and, therefore, BMC ought to have been careful enough of not placing any reliance any further on the said agreement, the Bench noted.

 

“The Trial Court was justified in allowing the application by setting aside the award. The High Court committed a grave error in not considering the relevant aspects and in placing reliance on the statement made by the Appellant- State before the Trial Court that the State had no interest inasmuch as it had allotted the land to BMC to set up a bus stand and therefore, it should be deleted from the array of parties as defendant no.2”, it held.

 

Therefore, allowing the appeal, the Bench held that the Trial Court will proceed with the suit and decide the same on merits on the basis of evidence which may be led before it.

HC graciously gifted forest land to private person who could not prove his title: Top Court allows State of Telangana's appeal, orders enquiry into lapses committed by Officers in filing collusive affidavits
Justices M.M. Sundresh & S.V.N. Bhatti [18-04-2024]

Read Order: THE STATE OF TELANGANA & ORS v. MOHD. ABDUL QASIM (DIED) PER LRS [SC- CIVIL APPEAL NO. 5001 OF 2024]

 

LE Correspondent

 

New Delhi, April 19, 2024: While setting aside an order passed by the Telangana High Court whereby a forest land was held to be owned by a private person, the Supreme Court has observed that it was a classic case where the officials of the State, who are expected to protect and preserve the forests in discharge of their public duties, clearly abdicated their role.

The factual background of the case was that a revision of survey and settlement of village Kompally took place. An application was stated to have been filed by Respondent No. 1 (Original Plaintiff), invoking Section 87 of the Andhra Pradesh (Telangana Area) Land Revenue Act, 1317 F, seeking rectification of survey error. It was so filed on the premise that the Plaintiff actually owned the suit land. This application did not surface for nearly a decade and a half, for the reasons known to the Plaintiff.

 

A notification was published, declaring the land, which was part of the earlier proceedings of the revenue department as reserved forest. It was done on the premise that the lands were forest lands and, therefore, they were accordingly declared as reserved forest. Strangely, the application so filed by the Plaintiff was rejected by the Revenue Authority. Despite the findings rendered, neither the Forest Department nor the Forest Settlement Officer was arrayed as a party to these proceedings before the revenue department. Thereafter, the Joint Collector, Warangal allowed the application of the Plaintiff. Realising that the said order will not give the Plaintiff benefit of any sort, he filed an application before the Government seeking denotification of the land declared as reserved forest', which was dismissed.

 

A suit was filed by the Plaintiff seeking a declaration of title and permanent injunction. The trial court while granting title to the plaintiff declined the incidental relief of injunction.

 

On appeal, the High Court reversed the said finding of the trial court qua the declaration, and confirmed the findings on injunction by dismissing the suit in toto. Ultimately, it was held that the property is a forest land. The High Court went ahead and held that the plaintiff had miserably failed to show his title to the suit property. 

 

The District Forest Officer did not appear before the Committee and based upon a report submitted, it was held that the suit property was required to be excluded in favour of the plaintiff. The aforesaid decision was taken by the District Collector after the judgment of the First Appellate Court. The review came to be filed before another Judge. The impugned order was passed in the purported exercise of the power of review, by virtually reversing all the findings rendered in the appeal, while placing reliance upon evidence which on the face of it was inadmissible and, therefore, void from its inception, rendered by an authority which had absolutely no jurisdiction at all. In its 2021 review ruling, the High Court had reversed its earlier findings.

 

It was the case of the appellants that revenue records do not confer title. It was submitted that the High Court clearly exceeded its jurisdiction in review by entertaining a re-hearing and virtually acted as an appellate court. The Respondents did not satisfy the court on the title, which finding has not been touched.

 

On the other hand, the respondents contended that the proceedings before the Forest Settlement Officer had become final. Even the trial court held that the plaintiff had title. Once title is proved, possession has to follow.

 

The Division Bench of Justice M.M. Sundresh & Justice S. V. N. Bhatti, at the outset, observed, “It is a classic case where the officials of the State who are expected to protect and preserve the forests in discharge of their public duties clearly abdicated their role. We are at a loss to understand as to how the High Court could interfere by placing reliance upon evidence produced after the decree, at the instance of a party which succeeded along with the contesting defendant, particularly in the light of the finding that the land is forest land which has become part of reserved forest.”

 

According to the Top Court, there was a distinct lack of jurisdiction on two counts – one was with respect to an attempt made to circumvent the decree and, the second was in acting without jurisdiction. The land belonged to the Forest Department and therefore, Defendant No. 1 had absolutely no role in dealing with it in any manner. Proceeding under the A.P. Land Revenue Act, 1317 F. had no relevancy or connection with a concluded proceeding under the A. P. Forest Act. Thereafter, without any jurisdiction, an order was passed under Section 87, it noted.

 

Noticing the fact that the High Court on the earlier occasion had given a clear finding that even at the time of declaration under the A.P. Land Revenue Act, 1317 F, these lands were not shown as private lands by the defendant, among other factual findings, the Bench said, “It is indeed very strange that the High Court which is expected to act within the statutory limitation went beyond and graciously gifted the forest land to a private person who could not prove his title. While disposing of the first appeal, the High Court exercised its power under Order XLI Rule 22 of the CPC 1908 for partly reversing the trial court decree. Even otherwise, there were concurrent findings in so far as dismissal of the suit for injunction is concerned. In our considered view, the High Court showed utmost interest and benevolence in allowing the review by setting aside the well merited judgment in the appeal by replacing its views in all material aspects.”

 

It was also opined that the suit filed was not maintainable as the plaintiff had not challenged the proceedings under Section 15 of A. P. Forest Act. These had become final and conclusive in view of the express declaration provided under the statute in Section 16 of A. P. Forest Act. The Bench opined that the Plaintiff could not prove his title nor does there lie any relevance to the action taken under the A.P. Land Revenue Act, 1317 F. Furthermore, there was no specific challenge to the concluded proceedings under the A. P. Forest Act as the Plaintiff had merely asked for declaration of title and permanent injunction restraining the Defendants from interfering with possession.

 

The Bench also presented a constitutional perspective on the current environmental scenario and observed, “Human beings indulge themselves in selective amnesia when it comes to fathom the significance of forests…the protection of forests is in the interest of mankind, even assuming that the other factors can be ignored.”

 

 

Thus, allowing the appeal, the Bench set aside the impugned judgment and impose cost of Rs 5,00,000 each on appellants and respondents to be paid to the National Legal Services Authority (NALSA) within a period of two months

 

The Bench concluded the matter by stating, “The appellant State is free to enquire into the lapses committed by the officers in filing collusive affidavits before the competent court, and recover the same from those officers who are responsible for facilitating and filing incorrect affidavits in the ongoing proceedings.”

Applicant approaching court belatedly not to be granted extraordinary relief: Top Court restores order dismissing rival applicant's petition challenging approval granted for starting LPG distributorship in light of 4-year delay
Justices Pamidighantam Sri Narasimha & Aravind Kumar [18-04-2024]

Read Order: MRINMOY MAITY v. CHHANDA KOLEY AND OTHERS [SC- CIVIL APPEAL NOs. 5027 of 2024]

 

Tulip Kanth

 

New Delhi, April 19, 2024: In a case where the appellant was granted approval for starting LPG distributorship, the Supreme Court has upheld the order of a Single-Judge Bench dismissing a rival applicant's petition which was filed after a lapse of four years.

 

The issue before the Division Bench of Justice Pamidighantam Sri Narasimha and Justice Aravind Kumar was whether the writ court was justified in entertaining the writ petition filed by the respondent No.1 challenging the approval dated 03.06.2014 granted in favour of the appellant for starting LPG distributorship at Jamalpur, District Burdwan.

 

The facts of the case which led to the filing of the appeal were that an advertisement came to be issued calling for application for distributors to grant LPG distributorship under GP Category at Jamalpur, District Burdwan. Since both the appellant and the respondent No.1 were held to be eligible from amongst the six (6) candidates, draw of lots was held and the appellant was found to be successful and was selected for verification of the documents. A letter of intent was issued to the appellant and the approval was granted by the BPCL in favour of the appellant for starting LPG distributorship at the notified place.

 

After a lapse of 4 years, the respondent No.1 filed a complaint with the BPCL alleging that land offered by the appellant was a Barga land and the same cannot be considered. Subsequently an application having been filed by the appellant offering an alternate land, the Corporation allowed the prayer of the appellant to construct the godown and showroom on the alternate land offered by the appellant.

 

 The respondent No.1 being a rival applicant for grant of distributorship, having participated in submitting the application and being unsuccessful in the draw of lots held way back in the year 2013 filed a writ petition in the year 2017 which came to be dismissed by the Single Judge on the ground that the writ petitioner (respondent No.1) had no locus standi since she had participated in the selection process.

 

Being aggrieved by the same the intra-court appeal came to be filed and the same was allowed. The allotment made in favour of the appellant was set aside by the impugned order and as a consequence of it, the letter of intent, the letter of approval accepting the alternate land offered by the (appellant herein) and all subsequent permissions, licences and no objections issued in his favour were held to be of no effect. Hence, the instant appeal was filed before the Top Court.

 

On a perusal of the facts, the Bench opined that the writ petitioner ought to have been non-suited on the ground of delay and latches itself. “An applicant who approaches the court belatedly or in other words sleeps over his rights for a considerable period of time, wakes up from his deep slumber ought not to be granted the extraordinary relief by the writ courts. This Court time and again has held that delay defeats equity. Delay or latches is one of the factors which should be born in mind by the High Court while exercising discretionary powers under Article 226 of the Constitution of India”, the Bench observed.

 

Noting that the discretion to be exercised would be with care and caution, the Bench opined that if the delay which has occasioned in approaching the writ court is explained which would appeal to the conscience of the court, in such circumstances it cannot be gainsaid by the contesting party that for all times to come the delay is not to be condoned. 

 

Referring to its judgment in Tridip Kumar Dingal and others v. State of W.B and others., the Top Court also held that when the extraordinary jurisdiction of the writ court is invoked, it has to be seen as to whether within a reasonable time same has been invoked and even submitting of memorials would not revive the dead cause of action or resurrect the cause of action which has had a natural death.

 

“It is true that there cannot be any waiver of fundamental right but while exercising discretionary jurisdiction under Article 226, the High Court will have to necessarily take into consideration the delay and latches on the part of the applicant in approaching a writ court”, it added.

 

On the facts of the case, the Bench observed that the writ petitioner was aware of all the developments including that of the allotment of distributorship having been made in favour of the appellant herein way back in 2014, yet did not challenge and only on acceptance of the alternate land offered by the appellant in March, 2017 and permitting him to construct the godown and the showroom. Same was challenged in the year 2017 and thereby the writ petitioner had allowed his right if at all if any to be drifted away or in other words acquiesced in the acts of the Corporation and as such on this short ground itself the appellant had to succeed. 

 

Another fact which swayed the Bench to accept the plea of the appellant was that the appropriate government had felt the need of permitting the Oil Marketing Companies to be more flexible and as such modification to the guidelines had been brought in 2015 whereby the applicants were permitted to offer alternate land where the land initially offered by them was found deficient or not suitable or change of the land, subject to specifications as laid down in the advertisement being met. 

 

“There being no stiff opposition or strong resistance to the alternate land offered by the appellant herein not being as per the specifications indicated in the advertisement, we see no reason to substitute the court’s view to that of the experts namely, the Corporation which has in its wisdom has exercised its discretion as is evident from the report filed in the form of affidavit by the territory manager (LPG)/ BPCL”, the Bench added.

 

Thus, allowing the appeal, the Bench set aside the Order of the Division Bench while restoring the order of the Single Judge.

State of West Bengal has so far not exercised the power for constituting Special Court for trial of offences in NIA Act's Schedule: SC upholds order of Chief Judge cum City Sessions Court permitting addition of offences under UAPA
Justices B.R. Gavai & Sandeep Mehta [18-04-2024]

Read Order:THE STATE OF WEST BENGAL v. JAYEETA DAS [SC- CRIMINAL APPEAL NO(S). 2128 OF 2024]

 

Tulip Kanth

 

New Delhi, April 18, 2024: Noting the fact that the West Bengal Government has so far not exercised the power conferred upon it by Section 22 of the NIA Act for constituting a Special Court for trial of offences set out in the Act's Schedule, the Supreme Court has held that the Chief Judge cum City Sessions Court within whose jurisdiction the offence took place, had the jurisdiction to permit addition of the offences under UAPA to the case.

 

The facts of the case suggested that based on a written complaint filed by the SI Raju Debnath, STF Police Station, Kolkata informing about recovery of an unclaimed black coloured bagpack lying abandoned at Sahid Minar containing some written posters of CPI(Maoist) and some incriminating articles about the activities of CPI(Maoist), an FIR came to be registered for the offences punishable under Sections 121A, 122, 123, 124A, 120B of the Indian Penal Code, 1860(IPC).

 

The respondent herein was apprehended and was produced before the Chief Metropolitan Magistrate. The Investigating Officer conducted preliminary investigation and thereafter filed an application praying for addition of offences punishable under Sections 16, 18, 18B, 20, 38 and 39 of the Unlawful Activities (Prevention) Act, 1967 (UAPA).

 

The Chief Judge, vide order dated April 7, 2022 permitted addition of offences under Sections 16, 18, 18B, 20, 38, 39 of UAPA in the case and allowed the same to be investigated along with the existing offences for which the FIR had been registered. 

 

The State of West Bengal had approached the Top Court by way of this appeal for assailing the legality and validity of the judgment of the Calcutta High Court.The High Court had quashed the proceedings of the case registered against the respondent to the extent of the offences punishable under the provisions of UAPA, holding that only a Special Court constituted by the Central Government or the State Government as per the National Investigation Agency Act (NIA Act) had the exclusive jurisdiction to try the offences under UAPA. 

 

The frontal issue which fell for consideration, before the Division Bench of Justice B.R. Gavai & Justice Sandeep Mehta was whether the Chief Judge, City Sessions Court, Calcutta had the jurisdiction to pass the order dated April 7, 2022.

 

Referring to sub-section (3) of Section 22 of NIA Act, the Bench opined that until a Special Court is constituted by the State Government under sub-Section (1) of Section 22, in case of registration of any offence punishable under UAPA, the Court of Sessions of the division, in which the offence has been committed, would have the jurisdiction as conferred by the Act on a Special Court and a fortiori, it would have all the powers to follow the procedure provided under Chapter IV of the NIA Act.

 

The present case involved investigation by the State police, and therefore, the provisions of Section 22 were held to be applicable insofar as the issue of jurisdiction of the Court to try the offences was concerned.

 

“It is not in dispute that the State of West Bengal has so far not exercised the power conferred upon it by Section 22 of the NIA Act for constituting a Special Court for trial of offences set out in the Schedule to the NIA Act and hence, the Sessions Court within whose jurisdiction, the offence took place which would be the Chief Judge cum City Sessions Court in the case at hand, had the power and jurisdiction to deal with the case by virtue of the sub-section (3) of Section 22 of the NIA Act”, the Bench said.

 

Hence, it was held that the order dated April 7, 2022, whereby the Chief Judge cum City Sessions Court permitted the addition of the offences under UAPA to the case did not suffer from any illegality or infirmity.

 

The Bench also made it clear that Section 43D of UAPA provides a modified scheme for the application of Section 167 CrPC. Moreover, under the proviso to Section 43D(2), the Court has been given the power to extend and authorise detention of the accused beyond a period of 90 days as provided under Section 167(2) CrPC.

 

Placing reliance upon section 2(1)(d) of UAPA, the Bench opined that this provision admits to the jurisdiction of a normal criminal Court and also includes a Special Court constituted under Section 11 or Section 22 of the NIA Act. “Hence, the Chief Judge cum City Sessions Court had the jurisdiction to pass the order dated 7th April, 2022. In view of the definition of the ‘Court’ provided under Section 2(1)(d) of UAPA, the jurisdictional Magistrate would also be clothed with the jurisdiction to deal with the remand of the accused albeit for a period of 90 days only because an express order of the Sessions Court or the Special Court, as the case may be, authorising remand beyond such period would be required by virtue of Section 43D(2) of UAPA”, the Bench asserted.

 

It was further held that to the extent the Chief Metropolitan Magistrate extended the remand of the accused beyond the period of 90 days, the proceedings were grossly illegal. However, the charge sheet came to be filed beyond the period of 90 days and as a matter of fact, even beyond a period of 180 days, but the accused never claimed default bail on the ground that the charge sheet had not been filed within the extended period as per Section 43D of the UAPA. “...the only academic question left for the Court to examine in such circumstances would be the effect of evidence collected, if any, during this period of so called illegal remand, after 90 days had lapsed from the date of initial remand of the accused and the right of the accused to seek any other legal remedy against such illegal remand. Such issues would have to be raised in appropriate proceedings, i.e. before the trial court at the proper stage”, it added.

 

Thus, allowing the appeal, the Bench set aside the impugned judgment of the Calcutta High Court.

Doctors would immediately inform police if case of homicidal death is reported at Govt hospital; No chance that dead body would be allowed to be carried away by family members: SC acquits lifer in 1997 murder case
Justices B.R. Gavai and Sandeep Mehta [18-04-2024]

 

Read Order: KIRPAL SINGH v. STATE OF PUNJAB [SC- CRIMINAL APPEAL NO(S). 1052 OF 2009]

 

Tulip Kanth

 

New Delhi, April 18, 2024: While observing that the story set up by the prosecution did not inspire confidence and inherent improbabilities as well as loopholes were showcased in the evidence, the Supreme Court has acquitted a convict sentenced to life in a 27-yr-old murder case.

 

The factual background of the case was such that Sharan Kaur, the first informant(PW-5), wife of Balwinder Singh (deceased) used to reside along with her family members in the house which was situated on the backside of the grocery and sweets shop owned by her husband Balwinder Singh (deceased). In the intervening night of 12th/13th November, 1997, Balwinder Singh (deceased) went to sleep in the open balcony of the house which was not having any shutter, whereas Sharan Kaur (PW-5) along with the other family members slept in a room on the ground floor. 

 

It was alleged that Sharan Kaur (PW-5) heard a knock on the door of the room in which she was sleeping at about 2.30 a.m. She thought that it was her husband and thus she opened the door. In the illumination of light placed in the courtyard, she saw the accused appellant-Kirpal Singh standing there armed with a knife. 

 

The appellant inflicted an injury with the weapon on the abdomen of Sharan Kaur (PW-5). Another assailant who was accompanying appellant Kirpal Singh caught hold of her arm. She raised an alarm and her sons Goldy and Sonu woke up. None of these three persons could identify the other assailant. Both the assailants fled away by opening the main gate, in between the two shops. Sharan Kaur (PW-5) went upstairs to have a look at her husband and found him lying severely injured on the cot with blood oozing out of his mouth and head. 

 

On the way to the hospital, Balwinder Singh expired. First aid was provided to Sharan Kaur (PW-5), thereafter, she as well as the dead body of Balwinder Singh (deceased) was brought back to their home in the same vehicle and by that time the police had arrived. The prosecution alleged that the motive behind the occurrence was that the appellant and his associate were bearing jealousy on account of the roaring business being done at the halwai shop of Balwinder Singh (deceased), which was doing much better as compared to the halwai shop run by the accused appellant. 

 

The appellants had approached the Top Court assailing the judgment of the Punjab and Haryana High Court confirming the judgment rendered by the Additional Sessions Judge vide which the appellant was convicted u/s 302 of the Indian Penal Code, 1860 and sentenced to imprisonment for life. Under Section 307 IPC, rigorous imprisonment for a period of five years was imposed upon him.

 

The Division Bench comprising Justice B.R. Gavai and Justice Sandeep Mehta was of the view that if the prosecution case was to be accepted, it was apparent that the accused had painstakingly, planned out the murder of Balwinder Singh (deceased), inasmuch as they put up a ladder against the outer wall of the house, climbed into the house by using the said ladder and attacked the deceased by spade. Thus, the moment Balwinder Singh (deceased) had been belaboured, the purpose of the accused was served and hence, there was no rhyme or reason as to why the accused would take the risk of being exposed to the other family members. As per the prosecution, the accused appellant had assaulted Balwinder Singh (deceased) with a spade which was abandoned at the spot and then the accused came down with a knife.

 

This story set up by the prosecution did not inspire confidence. The Bench opined that once the accused had achieved the objective of eliminating Balwinder Singh(deceased) without being discovered, they had all the opportunity in the world to escape from the spot by using the very same ladder, which had been used to climb up the chaubara. Thus, there was no reason for the accused to risk discovery by coming down and alarming the family members.

 

Furthermore, as per the prosecution case, two accused were involved in the incident. If at all the prosecution case is to be believed, the accused after killing Balwinder Singh(deceased), must have gone down to eliminate the other family members and in that background, there was no reason as to why the person accompanying the accused appellant was unarmed. This again created a doubt on the truthfulness of the prosecution story. 

 

In her examination in chief, the first informant-Sharan Kaur(PW-5) categorically stated that her statement was recorded at the Civil Hospital on November 13, 1997 at about 7:30 a.m. It was read over and explained to her, and she signed it admitting it to be correct. If that was so, then it was opined that the subsequent conduct of Sharan Kaur (PW-5) in raising a hue and cry that investigation being conducted was tainted and the police had intentionally favoured the co-accused Kulwinder Singh by leaving out his name from the array of offenders created a great doubt on her credibility.

 

A serious doubt was created on the credibility of the deposition made by the first informant, in light of the fact that she claimed in her examination in chief that a van was brought by her son wherein, she and her husband were taken to the Civil Hospital, Tanda, where the medical officers opined that her husband had expired and she was medically examined. However, they did not believe in this opinion and took the victim to Bhogpur where again the doctors reiterated that her husband had expired. Only after this confirmation, the dead body of Balwinder Singh was brought back to the house where police was already present. This version, as set out in the testimony of the first informant, Sharan Kaur(PW-5), completely destroyed her credibility. 

 

“There cannot be two views on the aspect that if a case of homicidal death is reported at a Government hospital the doctors would immediately inform the police and there is no chance that the dead body would be allowed to be carried away by the family members”, the Bench held.

 

Not only this but the medical records of the Civil Hospitals at Tanda and Bhogpur were not collected by the investigating agency nor were the same brought on record by the prosecution in its evidence. Gurmeet Singh, elder brother of Daljit Singh(PW-6), was not examined by the prosecution and Daljit Singh (PW-6) did not even utter a word that appellant was having a weapon with him when he saw him fleeing away from the crime scene. According to the Bench, these inherent improbabilities and loopholes in the evidence completely destroyed the fabric of the prosecution case which was full of holes and holes and were impossible to be stitched together.

 

On going through the evidence of Sharan Kaur (PW-5) and Daljit Singh (PW-6), with reference to other evidence available on record, the Top Court was of the firm opinion that both these witnesses fell in the second category, i.e., wholly unreliable. No other tangible evidence was led by the prosecution to connect the accused appellant with the crime. The Bench found that no weapon of crime was recovered at the instance of the accused appellant and thus, there was no corroborative evidence so as to lend credence to the wavering and unreliable testimony of Sharan Kaur (PW-5) and Daljit Singh (PW-6).

 

Thus, the Bench observed that the evidence of Sharan Kaur (PW-5) and Daljit Singh (PW-6) was wholly unreliable and did not inspire confidence in the Court so as to affirm the conviction of the appellant. “It may be reiterated that no corroborative evidence was led by the prosecution so as to lend credence to the testimony of these two witnesses”, the Bench added.

 

Thus, quashing the orders of the Trial Court and the High Court, the Top Court allowed the appeal.