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In Civil Appeal No. 7504 of 2023 -SC- Delay in land acquisition appeals may not be fatal, but landowners may lose statutory benefits: Supreme Court
Justice Surya Kant & Justice Dipankar Datta [07-11-2023]

Read Order: Mohar Singh (Dead) Through Lrs. & Ors. V. State Of Uttar Pradesh Collector & Ors.


Chahat Varma


New Delhi, November 28, 2023: In a recent decision, the Supreme Court has ruled that inordinate delay in filing an appeal in compensatory matters, per se, may not be fatal as the rights and equities between the parties can be well balanced by denying the statutory benefits, such as interest for the delayed period.


In the given case, the appellants' land in village Khora, District Ghaziabad, was part of a larger tract of 902.2046 acres, proposed for acquisition by a notification dated 17.03.1988 under Section 4(1) of the Land Acquisition Act, 1894. Ultimately, only 337.892 acres, including the appellants' land, were acquired, and the Special Land Acquisition Officer issued an award, providing compensation at the rate of Rs.70 per sq. yard. Subsequently, the appellants, along with other landowners, filed references under Section 18 of the Act. The Xth Additional District Judge, Ghaziabad, in an award dated 06.04.1998, partially accepted the references and increased the compensation to Rs.106 per sq. yard. Following this, several landowners, including the appellants, approached the Allahabad High Court seeking further enhancement of compensation.


The appellants, however, failed to file an appeal before the High Court within a reasonable time. Subsequently, they initiated the first appeals in 2011, facing a delay of 12 years and 353 days. Seeking condonation of the delay, the appellants cited reasons such as illiteracy and poverty, which hindered their ability to arrange the required Court Fee. Despite their plea, the High Court refused to condone the delay, leading to the dismissal of the first appeal(s) filed by the appellants.


Meanwhile, the batch of first appeals preferred by other land owners, came to be decided, wherein the High Court enhanced the compensation at the rate of Rs.130 per sq. yard.


The division bench, comprising Justice Surya Kant and Justice Dipankar Datta, acknowledged that certain landowners, who remained discontent with the compensation rate set by the High Court, had approached this Court. A coordinating bench, through an order dated 12.12.2017, had partially granted relief in those appeals.


Further, the bench opined that the appellants had the right to seek parity with their co-villagers in receiving compensation for their acquired land.

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All that the High Court ought to have emphatically denied to the late-comers was the benefit of interest including on the solatium, under Section 34 of the Act for the period from the date of passing of the award by the Reference Court till the filing of the first appeals,” observed the division bench.


Also, considering the appellants' plea for enhanced compensation at the rate set by the High Court for the land in village Makanpur, the bench noted that this argument was explicitly presented before the High Court when their initial appeals were adjudicated on 04.07.2016. The High Court decisively dismissed this claim, opting for a lower rate of Rs.130 per sq. yard for the land in village Khora. In a subsequent appeal, this Court partially accepted the landowners' claim for village Khora, increasing the compensation to Rs.150 per sq. yard. Essentially, the plea for parity between the acquired lands of village Khora and Makanpur was implicitly rejected by this Court. Consequently, the bench found no merit in asserting that the appellants should receive compensation at par with the landowners of village Makanpur.


The bench noted that there was another plausible reason to reject the appellant's claim for the higher rate of Rs.297 per sq. yard. The delay of nearly 13 years in filing their first appeals was condoned solely to achieve parity among similarly situated landowners under Article 14 of the Constitution. Granting the appellants compensation higher than their counterparts, despite the latter being diligent in pursuing their remedy promptly, would result in hostile discrimination.


Having made this determination, the appeals were allowed in part, and the appellants were deemed entitled to compensation at the rate of Rs.150 per sq. yard for their acquired land. However, it was clarified that the compensation amount would not include statutory interest, including on solatium, at the rate prescribed under Section 34 of the Act for the period from the date of passing of the award by the Reference Court under Section 18 of the Act until the filing of the respective first appeals before the High Court.

InWrit Petition (Civil) No. 1281 of 2021 -SC- Supreme Court upholds constitutionality of Sections 95 to 100 of Insolvency and Bankruptcy Code
Chief Justice Dhananjaya Y Chandrachud, Justice J B Pardiwala & Justice Manoj Misra [09-11-2023]

Read Order: Dilip B Jiwrajka V. Union of India & Ors


Chahat Varma


New Delhi, November 24, 2023: The Supreme Court has upheld the constitutionality of Sections 95 to 100 of the Insolvency and Bankruptcy Code 2016 (IBC), rejecting a batch of petitions challenging their validity.


In the case at hand, the petitioners, in a batch of three hundred and eighty-four petitions under Article 32 of the Constitution, had contested the constitutional validity of Sections 95 to 100 of the IBC.


A three-judge bench of Chief Justice Dhananjaya Y Chandrachud, Justice J B Pardiwala and Justice Manoj Misra highlighted a fundamental distinction between Part II and Part III of the IBC. It was noted that Part II, specifically Chapter II, was dedicated to the resolution of insolvencies of corporate entities, while Part III dealt with insolvency resolution and bankruptcy for individuals and partnership firms. The observation emphasized that these parts addressed distinct processes tailored to the resolution of insolvencies in different contexts, with Part II focusing on corporate entities and Part III addressing the insolvency concerns of individuals and partnership firms.


The bench further observed that the resolution professional in the context of individual or partnership insolvencies, as outlined in Chapter III of Part III of the Insolvency and IBC, did not possess an adjudicatory function according to Section 99. The resolution professional's role, as specified in Section 99, was to gather relevant information based on the application, conduct necessary processes, and submit a report recommending the acceptance or rejection of the application. The expressions ‘examine the application’, ‘ascertain and satisfy the requirements’ and ‘recommend the acceptance or rejection of the application’ made it clear that the resolution professional's role was purely recommendatory and did not involve performing adjudicatory functions or arriving at binding conclusions on facts.


The bench also observed that Clause (b) of sub-section (1) of Section 14 empowered the adjudicating authority to declare a moratorium restraining the transfer, encumbrance, alienation, or disposal by the corporate debtor of any of its assets or any legal right or beneficial interest therein. Importantly, the moratorium under Section 14 operated based on the order passed by an adjudicating authority. The purpose of the moratorium under Section 96 was protective in nature, aiming to insulate the corporate debtor from the initiation or continuation of legal actions or proceedings concerning the debt.


The bench expressed the considered view that the resolution professional, operating under the regulatory oversight of the Board, plays a vital role in the effective functioning of the insolvency process and significantly contributes to its efficiency. The bench highlighted two key aspects: firstly, the resolution professional is only entitled to seek information strictly relevant to the examination of the application for Insolvency Resolution Process (IRP); and secondly, regulation 7(2)(h) of the Insolvency and Bankruptcy Board of India (Insolvency Professionals) Regulations, 2016, read with para 21 of the First Schedule, imposes an obligation on the resolution professional to ensure the confidentiality of all information related to the insolvency process.


The bench held the view that the submission advocating for an adjudicatory role to be introduced at the stage of Section 97(5) cannot be accepted. The authority bestowed upon the adjudicating authority at the application filing stage is for the appointment of a resolution professional. This appointment serves a facilitative purpose outlined in Section 99, culminating in a report that either recommends the acceptance or rejection of the application. Considering the statutory scheme, the bench deemed it impermissible for the court to allow adjudicatory intervention by the adjudicating authority to determine what is described as a jurisdictional question at the Section 97(5) stage.

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With the above observations, the Court concluded that no judicial adjudication was involved in the stages outlined in Sections 95 to Section 99 of the IBC. The resolution professional appointed under Section 97 played a facilitative role, collating relevant facts for examining the application for the commencement of the insolvency resolution process. The report submitted to the adjudicatory authority was recommendatory in nature, suggesting whether to accept or reject the application.


Further, the argument that a hearing should be conducted by the adjudicatory authority for determining jurisdictional facts at the stage of appointing a resolution professional under Section 97(5) of the IBC was rejected. It was noted that no adjudicatory function was contemplated at that stage, and introducing such a requirement would have amounted to rewriting the statute. The resolution professional could use the powers under Section 99(4) of the IBC to examine the application for insolvency resolution and gather information relevant to the application to facilitate the submission of the report recommending its acceptance or rejection. There was no violation of natural justice under Sections 95 to 100 of the IBC, as the debtor was not deprived of an opportunity to participate in the examination process by the resolution professional. No judicial determination occurred until the adjudicating authority decided under Section 100 whether to accept or reject the application. The report of the resolution professional was merely recommendatory and did not bind the adjudicatory authority when exercising its jurisdiction under Section 100.


The bench held that the adjudicatory authority had to observe the principles of natural justice when exercising jurisdiction under Section 100 to determine whether to accept or reject the application. The purpose of the interim-moratorium under Section 96 was to shield the debtor from further legal proceedings. The provisions of Sections 95 to 100 of the IBC were not unconstitutional as they did not violate Article 14 and Article 21 of the Constitution.


Consequently, the present writ petitions were dismissed.

InWrit Petition (Civil) No 1224 of 2023 -SC-Governor can't thwart lawmaking: Supreme Court orders Punjab Governor to act on pending bills 'as soon as possible'
Chief Justice Dhananjaya Y Chandrachud, Justice J B Pardiwala& Justice Manoj Misra [10-11-2023]

Read Order: State of Punjab v. Principal Secretary to the Governor of Punjab and Another


Chahat Varma


New Delhi, November 24, 2023: In a significant ruling, the Supreme Court has held that the Governor cannot withhold action on Bills passed by the State Legislature.


In this case, the State of Punjab had moved to the Supreme Court under Article 32 of the Constitution, seeking relief in relation to the Sessions held on 19 June 2023, 20 June 2023, and 20 October 2023 of the Punjab Vidhan Sabha. Specifically, the state was seeking a declaration affirming the legality of these sessions and validating the business transacted by the House. Additionally, the State of Punjab was seeking a mandamus to ensure that seven Bills, including three Money Bills, which had been kept pending by the Governor, are processed in accordance with the law.


The Supreme Court had entertained the petition on 6 November 2023 and had been informed that subsequent to the filing of the petition, the Governor had recommended the introduction of two out of the three Money Bills, namely, the Punjab Goods and Services Tax (Amendment) Bill 2023 and the Indian Stamp (Punjab Amendment) Bill 2023, before the Vidhan Sabha.


Two issues arose for consideration: first, whether the Governor could withhold action on Bills that had been passed by the State Legislature; and second, whether it was permissible in law for the Speaker to reconvene a sitting of a Vidhan Sabha session that had been adjourned but not prorogued.


A three-judge bench of Chief Justice Dhananjaya Y Chandrachud, Justice J B Pardiwala and Justice Manoj Misra observed that in a Parliamentary form of democracy, real power was vested in the elected representatives of the people, both at the State and Central levels. The Governor, as an appointee of the President, was the titular head of the State. The fundamental principle of constitutional law consistently followed since the adoption of the Constitution was that the Governor acted on the 'aid and advice' of the Council of Ministers, except in areas where the Constitution entrusted the exercise of discretionary power to the Governor. The bench emphasized that this principle cemented the constitutional foundation, signifying that the power to make decisions affecting the governance of the State or nation primarily lay with the elected arm of the government.Furthermore, the bench underscored that the Governor was intended to be a constitutional statesman, guiding the government on matters of constitutional concern.


The bench stated that the Governor, as an unelected Head of the State, possesses constitutional powers, but these powers cannot be utilized to impede the normal course of lawmaking by the State Legislatures. If the Governor decides to withhold assent under the substantive part of Article 200, it is logical to pursue the course indicated in the first proviso, which involves remitting the Bill to the state legislature for reconsideration. The power to withhold assent under Article 200 must be read together with the consequential course of action to be adopted by the Governor under the first proviso. Failing to do so would allow the unelected Head of State to potentially veto the functioning of the legislative domain, thus contradicting fundamental principles of a constitutional democracy based on a Parliamentary pattern of governance.


Further, the bench noted that concerning Money Bills, the power of the Governor to return a Bill in terms of the first proviso was excluded from the purview of the constitutional power of the Governor. Money Bills were governed by Article 207, requiring the recommendation of the Governor for the introduction of the Bill on a matter specified in clauses (a) to (f) of clause (1) of Article 199.


The bench emphasized that the Governor was not at liberty to withhold his action on the Bills that had been placed before him and had no avenue but to act in a manner postulated under Article 200 of the Constitution.


Thus, the bench ruled that the Governor of Punjab was not empowered to withhold action on the Bills passed by the State Legislature and must act ‘as soon as possible’.


Further, the bench, referred to the case of Ramdas Athawale (5) v. Union of India and Others [LQ/SC/2010/328], wherein the constitutional distinction between the prorogation of the House and its adjournment was highlighted. The Court had explained that an adjournment was an interruption in the course of one and the same session, while prorogation terminated a session, putting an end to all proceedings in Parliament. The bench noted that in the present case, the Vidhan Sabha being adjourned on 22 March 2023 without prorogation, the Speaker was empowered to reconvene the sittings of the House within the same session.


The bench observed that under Article 122(2), the decision of the Speaker, in whom powers are vested to regulate the procedure and conduct of business, is final and binding on every Member of the House. The validity of the Speaker adjourning the House sine die and the subsequent direction to resume sittings could not be inquired into on the grounds of any irregularity of procedure.


The bench held that Rule 16 of the Rules of Procedure and Conduct of Business in the Punjab Vidhan Sabha (Punjab Legislative Assembly)empowered the Vidhan Sabha to adjourn from time to time by its own order. The first proviso to Rule 16 acknowledged that adjournment of the Vidhan Sabha could be either to a particular day or sine die. Thus, the bench concluded that it was legally permissible for the Speaker to reconvene the sitting of the Vidhan Sabha after it was adjourned sine die without prorogation. Furthermore, the Speaker was empowered as the sole custodian of the proceedings of the House to adjourn and reconvene the House.


The bench observed that the submission made by the State of Punjab in the present petition, seeking a declaration that the sessions of the Vidhan Sabha and the business transacted within them were legal, was based on misconceptions. The bench noted that the declaration was not sought in isolation but as a response to the Governor's inaction on the Bills, purportedly due to the belief that the sessions were invalid. The State of Punjab consistently asserted that the sessions of the Vidhan Sabha and the business conducted therein were legal and constitutionally valid, as evidenced by the correspondence.


Consequently, the bench had held that there was no valid constitutional basis to cast doubt on the validity of the session of the Vidhan Sabha held on 19 June 2023, 20 June 2023, and 20 October 2023. It stated that any attempt to cast doubt on the session of the legislature would pose significant risks to democracy. The Speaker, recognized as a guardian of the privileges of the House and a constitutionally authorized representative of the House, was deemed to have been acting within his jurisdiction in adjourning the House sine die. Furthermore, the re-convening of the House was considered to be within the scope of Rule 16 of the Rules of Procedure.


The Court emphasized that casting doubt on the validity of the session of the House was not a constitutional option open to the Governor. It noted that the Legislative Assembly was comprised of duly elected Members of the Legislature, and during the tenure of the Assembly, the House was governed by decisions taken by the Speaker in matters of adjournment and prorogation.


Based on these considerations, the Court concluded that the Governor of Punjab must proceed to take a decision on the Bills submitted for assent on the basis that the sitting of the House conducted on 19 June 2023, 20 June 2023, and 20 October 2023 was constitutionally valid.

InW.P.(CRL) 275/2022 -DEL HC-Delhi High Court approves extradition of Indian national to Oman for murder charges
Justice Amit Bansal [24-11-2023]

Read Order: Majibullah Mohammad Haneef V. Union of India


Chahat Varma


New Delhi, November 24, 2023: The Delhi High Court has dismissed a writ petition filed by an Indian national challenging his extradition to Oman to face murder charges. The Court upheld the extradition order passed by the Additional Chief Metropolitan Magistrate (ACMM).


Briefly stated, the petitioner, a permanent resident of Uttar Pradesh, India, worked as a labourer in Bidiyah, the Sultanate of Oman. On July 31, 2019, Bidiyah Police Station received a report of the death of an Omani national, along with his wife and three minor children. Preliminary investigations in Oman revealed fingerprints and DNA samples of the petitioner, along with those of other Fugitive Criminals (FCs). According to the preliminary investigation, all four FCs were found to have committed offenses of premeditated murder, a felony punishable under Article 302-A of the Penal Code of Oman. Subsequently, all four FCs absconded from Oman to India.


The single-judge bench of Justice Amit Bansal referred to the Extradition Act and observed that extradition concerning a Treaty State must be in relation to an offense provided for in the Extradition Treaty with that State. It was noted that India had an Extradition Treaty with the Sultanate of Oman, duly notified by the Ministry of External Affairs. Article 2 of the Extradition Treaty stipulated that individuals accused of an offense punishable under the laws of both Contracting States by imprisonment for not less than one year or for a more severe punishment shall be extradited.


The bench relied on the judgment rendered inSarabjit Rick Singh v. Union of India [LQ/SC/2007/1530], where the court had outlined the parameters of an inquiry to be conducted by the Magistrate under the Extradition Act: (i) The Magistrate needs to establish prima facie finding on whether the offense for which extradition is sought is of a political character or is otherwise an extraditable offense. (ii) No formal trial is necessary to determine the guilt of the fugitive criminal; only a report is required. (iii) According to Section 10 of the Extradition Act, exhibits and depositions, along with duly authenticated copies, can be accepted as evidence. (iv) Strict formal proof of evidence is not essential. During the inquiry, the Court may presume that the contents of the document would be proved.


The bench stated that the standard of proof in an inquiry in an extradition case is not of the same level as that required in a trial. This is because the scope of the inquiry is only to come to a prima facie conclusion and not to establish the actual guilt of the FCs.


The bench observed that the murder charge against the petitioner was not indicated as a political offense, and no arguments in this context were presented to the court by the petitioner.


Further, the bench noted that the offense of murder met the criteria for an extraditable offense, as it was punishable by more than one year of imprisonment in both India and Oman, as specified in the Extradition Treaty. The petitioner did not contest this aspect before the court.


The bench, after considering the evidence presented by the Requesting State, noted that there was sufficient material to establish a prima facie case supporting extradition. The evidence included detailed autopsy and medical reports, fingerprint reports linking the petitioner to various locations in the house, DNA sample reports matching those from the victims and the house to the petitioner, and CCTV footage showing the petitioner using the victim's ATM card. The petitioner's defence, asserting that the fingerprints and DNA samples were related to the petitioner's engagement in whitewashing the house and checking on the victims' well-being, was presented but not supported by any defence evidence during the inquiry.


Also, the bench, addressing the petitioner's contention, rejected the argument that authorities from the Requesting State should have appeared before the ACMM in India to authenticate the submitted documents. It emphasized that Section 10 of the Extradition Act did not require the presence of authorities from the Requesting State in Indian Courts for the documents to be admitted in evidence.


The bench further observed that the petitioner raised a contention asserting that a fair trial in the Requesting State, governed by Sharia/Islamic Law, would be compromised. The petitioner highlighted the difference in punishment for murder between India and Oman, emphasizing that in Oman, the offense is only punishable by the death penalty. However, the communication from the Embassy of the Sultanate of Oman, addressed the concerns raised by the petitioner. The assurances included the right to a fair and just trial, legal defence with a competent lawyer, provision of an interpreter, and the possibility of commutation of the death penalty to life imprisonment.


In light of the preceding discussion, the bench dismissed the present petition, and upheld the impugned order passed by the ACMM. As a result, the bench affirmed the decision of the Union of India to extradite the petitioner to the Sultanate of Oman.


In CRL.M.A. 17894/2023 -DEL HC- Delhi High Court dismisses applications by Birla conglomerate scion seeking dismissal of NI Act complaint, saying non-disclosure of previous petitions not material concealment
Justice Amit Sharma [23-11-2023]

Read Order: Yashovardhan Birla & Ors. V. Kamdhenu Enterprises Limited and Anr.


LE Correspondent


New Delhi, November 24, 2023: The Delhi High Court has dismissed applications filed by Kamdhenu Enterprises Ltd. and M/s Jads Services Pvt. Ltd. seeking the dismissal of petitions filed by Yashovardhan Birla, chairman of the Yash Birla Group of industries, under Section 138 of the Negotiable Instruments Act, 1881 (NI Act).


In the said case, the present applications, filed by Kamdhenu Enterprises Ltd. and M/s Jads Services Pvt. Ltd., sought the dismissal of petitions filed by Yashovardhan Birla on grounds of fraud and the initiation of proceedings under Section 340 read with Section 195(1)(b) of the Code of Criminal Procedure, 1973 (Cr.P.C.). The captioned petitions aimed to quash cases instituted by the applicant under Section 138 of the NI Act, pending in the Court of the Metropolitan Magistrate, Patiala House, Delhi.


The main crux of the arguments presented by the counsel appearing on behalf of the applicant was the alleged concealment by the non-applicant concerning the earlier petitions filed under Section 482 of the Cr.P.C. seeking similar relief as in the present petitions. The fact that both petitions primarily sought similar relief was not disputed. The earlier petitions were disposed of by a Single Judge of this Court vide order dated 14.08.2014.


The single-judge bench of Justice Amit Sharma referred to Arunima Baruah v. Union of India and Ors. [LQ/SC/2007/584], wherein it was observed that it is trite law that to enable the court to refuse to exercise its discretionary jurisdiction, suppression must be of a material fact. Material fact would mean material for the purpose of the determination of the lis, the logical corollary whereof would be that whether the same was material for the grant or denial of the relief. If the fact suppressed is not material for the determination of the lis between the parties, the court may not refuse to exercise its discretionary jurisdiction.


The bench considered the argument of alleged suppression of facts in the present petitions regarding previous petitions filed under Section 482 of the Cr.P.C. It emphasized that for suppression to be material, it must affect the rights of the parties in determining the case's merits. It was noted that the order from the previous petitions did not determine the current lis and simply allowed withdrawal with the liberty to raise contentions before the Metropolitan Magistrate. Therefore, the bench concluded that the alleged suppression did not impact the determination of the present case's merits.


The bench also stated that in the present applications, there was no averment made regarding the effect of non-disclosure of the earlier petitions and the order on the merits of the case. The bench expressed the view that the order could not be considered as res judicata between the parties.

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Similarly, the non-mentioning of the filing of the applications under Section 145(2) of the NI Act and the discrepancy in the language of the list of dates and the content of the main petition is not a material discrepancy which warrants a dismissal of the captioned petitions, at the very outset, without an examination of the merits of the case,” further observed the bench.


Consequently, the bench ruled that the non-mentioning of details of the earlier petitions and their withdrawal did not amount to deliberate concealment. The bench emphasized that prosecution for perjury should be sanctioned only in cases where the perjury appears to be deliberate and conscious, and where there is distinct evidence of the commission of an offense. The bench also highlighted the need for exceptional circumstances and distinct evidence of deliberate perjury to initiate contempt proceedings.


With the above observations, the present applications were dismissed and disposed of accordingly.

In W.P.(C) 2032/2023 -DEL HC- Delhi High Court upholds petitioner's disqualification in ITBP recruitment, height relaxation question left open
Justice Sanjeev Sachdeva & Justice Manoj Jain [16-11-2023]

Read Order: Inspector TD Cyril Mimin Zou V. Union of India & Ors


Chahat Varma


New Delhi, November 24, 2023: The Delhi High Court has refused to consider the petitioner's request for relaxation in height standards for the Indo-Tibetan Border Police (ITBP) recruitment process, leaving the question open for future consideration.


In the said case, the petitioner, Inspector TD Cyril Mimin Zou, was disqualified in the recruitment process for the ITBP on the grounds that his height measured 163 cm, falling short of the prescribed standard height of 165 cm. In an order dated 17.02.2023, it was directed that the respondent should allow the petitioner to proceed in the selection process. However, the results were to be kept in a sealed cover, and it was specified that the height issue should not be considered while permitting the petitioner to participate in the selection process. The respondents, in compliance with the directive, allowed the petitioner to continue in the selection process, temporarily overlooking the height condition.


Before the division bench of Justice Sanjeev Sachdeva and Justice Manoj Jain, the result of the petitioner was presented in a sealed cover, revealing that the petitioner had scored lower marks in merit compared to other candidates in the same category, i.e., Scheduled Tribe.


The counsel for the respondent asserted that there were no vacancies in the Scheduled Tribe category. In contrast, the counsel for the petitioner argued that there was, in fact, one vacancy in the Scheduled Tribe category within the ITBP.


The bench determined that, without delving into the mentioned controversy, it was evident that the petitioner did not hold the senior-most position in the order of merit within the Scheduled Tribe category. Even if there were one vacancy, the bench concluded that the vacancy should be filled by a person senior in merit to the petitioner.


Since petitioner has not made it on merit, we are not examining the question of relaxation in terms of height raised by the petitioner. Said question is left open,” observed the division bench.


With the above observations, the Court directed for the release and publication of the petitioner's result and disposed of the petition accordingly.

In W.P. (CRL) 299/2019 -DEL HC- Delhi High Court dismisses charges against DANICS officer in housing society fraud case due to lack of sanction under Section 197 of CrPC
Justice Tushar Rao Gedela [22-11-2023]

Read Order: Rakesh Bhatnagar V. Central Bureau of Investigation


Chahat Varma


New Delhi, November 24, 2023: The Delhi High Court has quashed charges against DANICS officer in a cooperative society fraud case. The Court held that the charges were untenable in the absence of the appropriate sanction under Section 197 of the Code of Criminal Procedure (Cr.P.C.).


In this case, the Central Bureau of Investigation (CBI) had registered a case against several individuals, including Rakesh Bhatnagar, for offenses under various sections of the Indian Penal Code and the Prevention of Corruption Act. The case pertained to the alleged conspiracy and fraudulent activities involving the Arvind Cooperative Group Housing Society Limited in New Delhi. The society, which was purportedly not functioning in accordance with applicable laws and regulations, was wound up, and subsequently, individuals including Srichand, Anna Wankhede, Mohan Lal, and others were accused of conspiring to cheat the Government of NCT Delhi. The investigation revealed alleged instances of impersonation, forgery, cheating, and use of forged documents to fraudulently obtain land from the Delhi Development Authority at a lower rate. The investigation also uncovered the concealment of material information with a purported mala fide intention and conspiracy between the accused individuals. Rakesh Bhatnagar, working as Joint Registrar in the Registrar Cooperative Societies office, New Delhi, was implicated for irregularly recommending a note sheet, not ensuring the revival or liquidation status of the society, and endorsing recommendations for the approval of a freeze list of society members for land allotment to the Society. It was alleged that as a Joint Registrar, Bhatnagar failed to point out that the society was under liquidation and therefore ineligible for land allotment without revival.


The single-judge of Justice Tushar Rao Gedela bench highlighted that a strong suspicion, founded on material that can be translated into evidence at the trial stage, was essential to maintain an order on charges. It noted that such suspicion should not be based on pure subjective satisfaction or moral notions, but rather be premised on material that allows the court to entertain a prima facie view that the accused had committed the offense.


The bench observed that both the Trial Court and the CBI, presumed that the petitioner, was aware of the order for the liquidation of the society. However, it was admitted by the prosecution that this winding-up order was not part of the subject file and was discovered by the CBI in the society's file maintained by the DDA. Given this admitted factual situation, the bench found it difficult, if not impossible, to conclude that the petitioner had conscious knowledge of the said order. The observation suggested that it would be challenging to determine complicity or culpability on the part of the petitioner for wilfully concealing or overlooking such an order when approving a note put up by his subordinate.


The bench also observed that, on the date of approval by the petitioner, the rule in force indicated that the order of liquidation may not have been in effect. The definition of 'Defunct Society' as per Rule 2 (viii) of the Delhi Co-Operative Societies Rules 1973, which was applicable at the time of the alleged offence, required a formal and written order by the Registrar of Cooperative Societies for a society to be deemed defunct. No such order was found to exist or was presented by the CBI.


Thus, the bench held that the question of the petitioner being part of a larger conspiracy with all other co-accused persons, including other government servants, did not seem to be established. The bench emphasized that suspicion, unless found to be grave, should not lead to the framing of charges.


Further, the bench referred to the judgments rendered in Prof. N.K. Ganguly v. CBI New Delhi [LQ/SC/2015/1543] and A. Sreenivasa Reddy v. Rakesh Sharma & Anr [LQ/SC/2023/812], elucidating the legal principles concerning sanction under Section 197 of the Cr.P.C. The bench highlighted key aspects from these judgments. Firstly, it was emphasized that for the purpose of obtaining previous sanction from the appropriate government under Section 197 of the Cr.P.C., it was vital to establish that the alleged offense was committed in discharge of official duty by the accused. The bench also noted that the protection provided by Sub-section (1) of Section 197 of the Cr.P.C. was available only to public servants whose appointing authority was the Central Government or the State Government, and not to every public servant. Furthermore, the bench clarified that while in a prosecution under the Prevention of Corruption Act, sanction was mandatory for offenses exclusively under the Act, in cases under the general penal law against a public servant, the necessity of sanction under Section 197 of the Cr.P.C. depends on factual aspects. The bench emphasized the importance of establishing a ‘nexus’ between the act and the official duty of the public servant, and noted that to commit an offense punishable under the law can never be a part of the official duty of a public servant.


The counsel for the CBI had not contested the absence of sanction under Section 197 of the Cr.P.C obtained from the Competent Authority against the petitioner. Given this admission, the petition was allowed, and the order framing charges against the petitioner with respect to offenses under the PC Act as well as the offenses under the IPC were quashed and set aside.Top of Form

In Bail Appln. 1175/2023 -DEL HC- Delhi High Court grants bail in dowry death case citing discrepancies in evidence
Justice Vikas Mahajan [20-11-2023]

Read Order: Rihan V. The State (GNCTD)


Chahat Varma


New Delhi, November 24, 2023: The Delhi High Court has granted bail to a man accused of murdering his wife in a dowry death case, citing discrepancies in the prosecution's evidence.


The accused, Rihan, had filed a petition seeking regular bail in connection with an FIR registered under Section 306 of the Indian Penal Code (IPC) and subsequent charges filed under Sections 306, 201, 498A, and 302 of the IPC.


The prosecution's case was based on the information received from GTB Hospital regarding the admission and subsequent death of the victim, Shama. The deceased's father stated that she had complained of being tortured by her husband for money and alleged that the accused had threatened her when she refused to comply with his monetary demands.


The single-judge bench of Justice Vikas Mahajan emphasized that an application for bail involved a comprehensive evaluation of multiple factors. These factors include determining whether there is prima facie or reasonable ground to believe the accused committed the offence, assessing the nature and gravity of the charge, considering the severity of the potential punishment upon conviction, evaluating the risk of the accused absconding or fleeing if granted bail, examining the character, and standing of the accused, gauging the likelihood of the offence being repeated, appraising the reasonable apprehension of witnesses being tampered with, and weighing the risk of justice being thwarted by the grant of bail.


The bench also cited the case of Satish Jaggi v. State of Chhattisgarh [LQ/SC/2007/596], wherein the Supreme Court had held in cases of non-bailable offences, the primary factor to be taken into account while considering a bail application was the nature and the gravity of the offence.


In the present case, the bench observed that the father of the deceased, while initially stating in his examination-in-chief that his daughter used to inform him about the accused demanding Rs. 5 lakhs for purchasing a plot, later, during cross-examination, claimed ignorance about the specific date of the alleged demand made by the accused. Additionally, he admitted to not filing any complaint regarding the harassment or cruelty faced by the deceased at the hands of the accused.


The bench also noted that the children of the accused, who were examined and supported the prosecution's case, were of a young age—around 8 and 9 years. The bench pointed out that, given their young age and the fact that they had been in the custody of the maternal grandparents since the death of the deceased, the possibility of their statements being influenced or tutored cannot be ruled out at this stage.


Further, the bench observed that, considering the unequivocal opinion of the doctor that the cause of death was asphyxia due to antemortem hanging, it prima facie indicated a misalignment between the medical evidence and the prosecution's narrative. The medical expert did not attribute the death to strangulation, emphasizing that ligature marks in hanging cases differed from those in strangulation. The bench, acknowledging the gaps in the evidence favouring the accused, decided that, at this point, the court could not ignore these discrepancies.


The bench noted that, among the 22 witnesses listed by the prosecution, only public witnesses had been examined so far. Consequently, a significant number of witnesses remained to be examined, pointing towards the likelihood of a protracted trial.


Considering these factors and the accused's extended custody, the Court concluded that no useful purpose would be served in keeping the accused in judicial custody. It also emphasized that there was no indication of the accused having a criminal record or being a flight risk, and that material witnesses had already been examined without the possibility of the accused influencing them if granted bail.


Thus, considering the factors in entirety, the Court was of the view that the accused had made out a case for the grant of regular bail.

In Civil Appeal No. 1598 of 2023 -SC- No right, title, or interest in immovable property without registered document: Supreme Court
Justice Vikram Nath & Justice Rajesh Bindal [01-11-2023]

Read Order: Shakeel Ahmed V. Syed Akhlaq Hussain


Chahat Varma


New Delhi, November 24, 2023: In a recent ruling, the Supreme Court has upheld the importance of registered documents in property disputes, setting aside a Delhi High Court judgment that had granted possession of a property based on an unregistered agreement to sell.


The present appeal had challenged the judgment and order dated 23.08.2018 passed by the Delhi High Court. In the said case, Shakeel Ahmed (appellant), was the defendant in a suit for possession and mesne profits filed by Syed Akhlaq Hussain (respondent), concerning a property. The suit relied on a Power of Attorney, an agreement to sell, an affidavit, and a will executed in favour of the respondent. The appellant contested the suit, asserting ownership of the property through an oral gift (Hiba) from its owner, Laiq Ahmed, who happened to be appellant’s brother. He also argued that the suit was not maintainable as the documents forming its basis were not admissible or enforceable under the law.


The Trial Court framed eleven issues, and granted a decree for possession along with mesne profits to the respondent. In the subsequent appeal, the High Court confirmed the Trial Court's findings on Hiba and the suit's basis on an unregistered document. The High Court upheld the decree of possession on the grounds that the respondent filed the suit as an Attorney for Laiq Ahmed, the property owner, and Laiq Ahmed did not object to the respondent seeking possession. The High Court, based solely on this ground, confirmed the decree of possession and dismissed the appeal.


The division bench of Justice Vikram Nath and Justice Rajesh Bindal asserted that no title could be transferred concerning immovable properties based on an unregistered Agreement to Sell or an unregistered General Power of Attorney. According to the Registration Act, 1908, a document requiring compulsory registration would not confer any right, let alone a legally enforceable one to approach a Court of Law. Even if these documents, such as the Agreement to Sell and the Power of Attorney, were registered, it wouldn't imply that the respondent had acquired title over the property in question. The most that could be claimed, even with a registered agreement to sell, would be relief of specific performance in appropriate proceedings.


Law is well settled that no right, title or interest in immovable property can be conferred without a registered document,” said the division bench.


The bench maintained that the restriction on registering documents did not override statutory provisions to confer title based on unregistered documents concerning immovable property. Given this established stance, the bench held that the respondent could not have sustained the suit for possession and mesne profits against the appellant, who was admittedly in possession of the property, whether as an owner or a licensee.


The bench concluded that if the respondent intended to evict the appellant, considering him a licensee, the appropriate course would have been to file a suit on behalf of the true owner or landlord under specific instructions of a Power of Attorney, claiming to have been receiving rent from the appellant. Alternatively, the respondent could have acted as the Attorney of the true owner to institute a suit on his behalf for eviction and possession. However, as the contents of the plaint did not align with these scenarios, the bench disagreed with the reasoning provided by the High Court in the impugned order.


Therefore, based on the reasons stated above, the Court determined that the challenged judgment should be set aside, and the suit should be dismissed. Consequently, the appeal was allowed, the impugned judgment was set aside, and the suit was dismissed.

InCRL.M.C. 2167/2023 -DEL HC- Delhi High Court quashes FIR against Embassy Hotel Managing Partners in employee's electrocution case; says High Court's power to quash FIRs through legal heirs extends to non-compoundable offences
Justice Amit Sharma [22-11-2023]

Read Order: Sunil Malhotra & Anr. V. The State NCT of Delhi & Anr.


Chahat Varma


New Delhi, November 23, 2023: The Delhi High Court has quashed an FIR against the managing partners of Embassy Hotel in Connaught Place for the death of an employee due to electrocution.


The factual matrix of the case was that the present case involved the death of one Rakesh, employed in the kitchen of Embassy Hotel, Connaught Place, New Delhi. He had suffered an electric shock while lifting a cylinder, leading to his subsequent demise. The post-mortem had revealed that the cause of death was ‘electrocution and its complications’. Further investigation at the crime scene had resulted in the seizure of electrical wires and a cylinder, and CCTV footage was obtained for additional insights. The Electrical Inspector's report had highlighted the unsafe manner in which electric wires supplying power to a sensor of the sewage treatment plant were laid, pointing towards a breach of safety regulations. The Managing Partners of Embassy Hotel were arrested and interrogated, during which they had accepted responsibility for the hotel's management and day-to-day affairs. Following their interrogation, the petitioners were released on bail. Based on the investigation, a chargesheet was filed against the petitioners under Section 304A of the Indian Penal Code (IPC).


The counsel for the petitioner had submitted that a settlement had been reached between the petitioners and the deceased's father. This settlement was documented in the Memorandum of Settlement. As per the submission, the father of the deceased had expressed no objection to quashing the FIR. It was also indicated that the father had been duly compensated in accordance with the settlement terms, including the release of amounts to which he was legally entitled, such as life insurance, provident fund, pension, and gratuity.


On the contrary, the Additional Public Prosecutor (APP) for the State had opposed the present petition, emphasizing that the report of the Electrical Inspector established prima facie evidence of the petitioners' gross negligence. The APP argued that despite the settlement reached between the parties, the critical factor of the petitioners' gross negligence contributing to the individual's death could not be overlooked. It was further submitted that the offence under Section 304A of the IPC was not merely a private offence. It was a public offence, with far reaching consequences on the social fabric.


The single-judge bench, presided over by Justice Amit Sharma, referred to the case of Satyam Kaushik v. State and Ors. [LQ/DelHC/2015/2766], where a Single Judge of this Court had quashed an FIR under Section 279/304A of the IPC. The decision was based on the absence of culpable negligence on the part of the petitioner, and a settlement, that had been reached between the parties, with the legal heirs of the deceased duly compensated.


The bench also referred to the judgment rendered in Bhanwar Singh v. State and Anr. [LQ/DelHC/2021/1508], where a co-ordinate bench of this Court had quashed an FIR under Section 288/304A of the IPC. In this case, the deceased, while carrying out some construction work, had fallen from the third floor of the petitioner's house, which was under construction, resulting in his death. The observation was that the incident was purely accidental, and since the parties had amicably resolved the dispute, continuing with the proceedings would serve no useful purpose.


Further, the bench observed that it was a settled principle of law that in cases of non-compoundable offences, where the parties had arrived at a settlement, the High Court possessed inherent power to quash a criminal proceeding. This power was exercised under Section 482 of the Cr.P.C. as well as Article 226 of the Constitution of India. It was reiterated that the inherent powers of the High Court were of a wide plenitude, and in their exercise, the guiding factors should be to secure the ends of justice or to prevent the abuse of the process of any court.


Additionally, the bench held that since the scheme of the Cr.P.C. permitted compounding through legal heirs in respect of offences 'compoundable' under Section 320 of the Cr.P.C., the extraordinary and inherent powers under Article 226 of the Constitution or Section 482 of the Cr.P.C. could be invoked to quash FIRs through legal heirs in cases of non-compoundable offences as well.


Criminality in case of negligence arises when there is no consciousness as to the consequences which may follow but circumstances are such that shows it was incumbent upon the actor to take certain precautions. It is further settled law that for a negligent act to give rise to a criminal liability, the negligence ought to be ‘gross’, which is a standard to be decided on the basis of facts and circumstances of each case,” further observed the bench.


The bench heldthat in the said case, the prosecution had failed to establish through evidence that the petitioners demonstrated wanton disregard or deliberate breach of duty to take ordinary care and precaution, which are essential elements to categorize the case as 'gross negligence.' The report from the Electricity Inspector, on which the prosecution relied, pertained to an inspection conducted post-incident, and there was no evidence to suggest that the broken PVC conduit pipe was attributed to the petitioners prior to the incident. Additionally, there was no indication that the petitioners had knowledge of the broken pipe before the incident occurred.


The bench also noted that the petitioners had fulfilled the statutory requirements regarding the payments to be made to the deceased. Additionally, it was noted that the petitioners had already complied with the terms of the settlement and had paid the compensation to the deceased's father. In light of the foregoing discussion, the bench opined that the interest of justice would be better served if the present FIR, along with all consequent proceedings, were quashed.


Consequently, the petition was allowed, and in view thereof, the FIR under Section 304A of the IPC and all other consequential proceedings emanating therefrom, including the chargesheet pending in the Court of Metropolitan Magistrate, Patiala House, New Delhi, were hereby quashed.

InBail Appln. 1938/2023 -DEL HC- Delhi High Court grants bail to accused in murder case, citing lack of evidence & possible suicide pact
Justice Vikas Mahajan [20-11-2023]

Read Order: Naveen Uppal @ Sunny V. State (NCT of Delhi)


Chahat Varma


New Delhi, November 23, 2023: The Delhi High Court has granted bail to a man accused of murder, citing the possibility of a consensual romantic relationship between the accused and the deceased, along with the notion of a suicide pact.


The petitioner had filed a bail petition under Section 439 of the Criminal Procedure Code (Cr.P.C.), seeking release in a case registered under Section 302 of the Indian Penal Code (IPC), 1860, along with Sections 25/27/54/59 of the Arms Act, 1959.


The prosecution's case revolved around the discovery of a deceased woman in a Ford Eco Sport car at Hindu College. The individual found sitting in the driver's seat, identified as Naveen Uppal @ Sunny (petitioner), disclosed the woman's name as Anjali Devi. An inquiry revealed that the petitioner and the deceased had been in a relationship for several years, despite the fact that the deceased was married with children, and the petitioner was married to another woman. According to the prosecution, the petitioner asked the deceased to leave him, and when she refused, he allegedly shot her.


The single-judge bench of Justice Vikas Mahajan noted that the petitioner and the deceased had a cordial relationship, and their families were acquainted. Given these circumstances, the bench acknowledged the potential for a consensual romantic relationship between the petitioner and the deceased, refraining from ruling it out at this stage.


However, the bench noted that the petitioner and the deceased had a suicide pact, and after the deceased committed suicide, the petitioner attempted to do the same. The attempt was unsuccessful as the country-made pistol did not fire when the petitioner tried to use it. The report from the FSL indicated that the pistol was in normal working order, but the cartridge recovered from the petitioner did not fire despite multiple attempts.


The bench observed that one of the motives ascribed to the petitioner by the prosecution was non-repayment of money borrowed from the deceased and her husband. However, a review of the conversation transcript indicated that the petitioner and his mother had already agreed to return the money, casting doubt on the alleged motive for the murder.


The bench also took into account a transcript of an audio recording from the day before the alleged incident indicating the deceased's expression of love for the petitioner and her statement that she cannot live without him. Additionally, the deceased expressed her desire to not continue her life without the petitioner's company, while the petitioner also expressed fondness for the deceased. This seemed to contradict the prosecution's version that the petitioner killed the deceased after she refused to leave him.


The benchstated that while the probative value of testimonies and evidence will be assessed by the Trial Court later, in the present context of the petitioner's bail application, the possibility of a consensual romantic relationship between the petitioner and the deceased, along with the notion of a suicide pact where the deceased shot herself, cannot be dismissed. The testimonies of prosecution witnesses and other evidence, considered solely for the purpose of the bail application, appeared to favour granting bail to the petitioner.


The Court also said it could not overlook the fact that the prosecution had cited 64 witnesses, with only 24 of them being examined over the last 7 years. It was evident that the trial was going to be protracted.


Thus, considering the above discussed circumstances in entirety, the Court was of the view that the petitioner was entitled to grant of regular bail pending trial.