In CWP No. 1756 of 2019 (O&M)-PUNJ HC- Period for which Punjab Police constable remained out of service on account of his dismissal will be treated as duty period for all intents and purposes, orders P&H HC in matter where cop was dismissed & later reinstated in service in 2017
Justice Jaishree Thakur [19-09-2022]

In CWP No. 1756 of 2019 (O&M)-PUNJ HC- Period for which Punjab Police constable remained out of service on account of his dismissal will be treated as duty period for all intents and purposes, orders P&H HC in matter where cop was dismissed & later reinstated in service in 2017 Justice Jaishree Thakur [19-09-2022]

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In Crl.O.P.No.9492 of 2019-MAD HC- Company having turnover of more than Rs 100 crore is liable to appoint Cost Auditor as per Rule 6(1) of Companies (Cost Records & Audit) Rules, 2014; Any failure or omission to do so attracts prosecution under Companies Act, 2013: Madras HC
Justice G.Jayachandran [26-09-2022]

Read Order: M/s.Sky Cotex India Private Limited And Ors v. The Registrar of Companies 


 

Tulip Kanth


 

Chennai, September 27, 2022: While dismissing a petition to quash the complaint filed by the Registrar of Companies against the petitioner-Company alleging non-compliance of Section 148 of Companies Act, 2013, the Madras High Court has held that the petitioner Company had to appoint Cost Auditor and inform the same to the Ministry of Corporate Affairs 


 

Placing heavy reliance on  Companies (Cost Records and Audit) Rules, 2014 as well as  Companies Act, 2013, the Bench of Justice G.Jayachandran asserted, “From reading of the provisions, it is evident that the petitioner company which has turn over more than Rs.100 crores is liable to appoint Cost Auditor as per Rule 6(1) and the Registrar of Companies has to be informed about the Board resolution regarding appointment of Cost Auditor in the specific form with specific fees as per Rules 6(2). Any failure or omission to appoint Cost Auditor attracts prosecution under Section 147(1) of the Act.”






 

In this matter The first petitioner, a Private Company incorporated under the Companies Act. The 2 nd petitioner is the Managing Director of the Company. 


 

This matter was mainly concerned with  Section 148 of Companies Act and Rules framed thereunder in Companies (Cost records and Audit) Rules 2014, wherein it is mentioned that a company which has net worth of above Rs 500 crore or annual turnover of above Rs 100 crore has to appoint cost auditor and maintain Cost Audit records in their books of account. 

 

The prosecution was launched on the premise that the first accused, a private company, had not appointed a Cost Auditor within time prescribed and in spite of show cause notice, they did not respond. Hence, being a continuous offence, the petitioner Company was liable to be punished for contravention of Section 148 of the Act.

 

This complaint was  sought to be quashed on the ground that the petitioner Company through its Board Resolution had appointed Cost Auditor and notice to the Government along with fees in Form CRA-2 was submitted by it. As mandate under the Rules, Form CRA-4 was submitted along with the fees on July 13, 2017. 

 

The Bench made it clear that petitioner company which had turn over more than Rs 100 crore was liable to appoint Cost Auditor and the Registrar of Companies had to be informed about the Board resolution regarding appointment of Auditor in the specific form with specific fees.

 

Taking note of the fact that admittedly the petitioner company had not appointed the Cost Auditor within the time prescribed, the Bench realized that the documents in the typed set of papers annexed to the petition made it clear that the Board had resolved to appoint Cost Auditor by name Mr.Venkateswar, Cost Accountant, for the financial year ending March 31, 2016 in their meeting held on December 2,2016. 

 

Justice Jayachandran  considered the fact that within 30 days of the Board resolution, under Rules 6(2) of the Companies (Cost Records and Audit), the Company ought to have submitted Form CRA-2 along with required fee. The receipt issued by Ministry of Corporate Affairs towards fees for CRA-2 was dated December 29, 2016 and thereafter, on receipt of the Cost Audit Report, the petitioner Company along with its explanation, had submitted the Cost Audit Report in Form CRA-4 to the Ministry of Corporate Affairs on July 13, 2017. 

 

The petitioner company had paid a sum of Rs 4,200  under CRA-4 on July 13, 2017 but in the complaint, it was specifically stated that it is a case of continuing offence and therefore, the complaint was not barred by limitation as per Section 472 of Cr.P.C.

 

As per the Bench, it was evident that the compliance of Section 148 of Companies Act, 2013, for the financial year 2015-2016 had been completed only on  July 13.07.2017 hence, the limitation had to be reconciled from that date. 

 

“Thus, the process commenced from issuance of show cause notice dated 05.12.2016, for the contravention of Section 148(1) of the Companies Act, which commenced on 01.10.2015, after expiry of 180 days and ceased on 13.07.2017, the date on which the Cost Audit report under CRA-4 submitted along with the explanation and fees, the complaint filed on 12.03.2018”,the Bench said.

 

Noticing that the petitioner Company was in existence when the Companies Act 2013 came to force, the Bench observed that it is mandatory on the part of the petitioner to appoint Cost Auditor and inform the same to the Ministry of Corporate Affairs with requisite forms and fees, within the period of 180 days.

 

It was also held by the Bench that the offence ceased on July 13, 2017, when Form CRA-4 was filed. The complaint was filed within one year, i.e., on March 12, 2018. Therefore, the complaint regarding contravention between October 1, 2015 to July 13, 2017 couldnot be quashed on the ground of limitation. Thus, considering such aspects, the Bench dismissed the Petition.



 

In W.P.(C) 8958/2022-DEL HC- Report of Director General is neither determinative nor conclusive as it is ultimately for Competition Commission to take all aspects and views into consideration before passing final orders: Delhi HC
Justice Yashwant Varma [25-09-2022]

Read Order: BUILDERS ASSOCIATION OF INDIA v. COMPETITION COMMISSION OF INDIA 


 

Mansimran Kaur

 

New Delhi, September 27, 2022: The Delhi High Court has opined that when the report of the Director General comes up for consideration before the Competition Commission, at this stage it becomes open to any party, person or enterprise which has a substantial interest in the outcome of proceedings or who is able to establish that its presence before the Commission is necessary in the public interest, to seek a right of audience before the Commission and to present its opinion for its consideration. 

The Bench of Justice Yashwant Varma held, “The Court also bears in mind the fact that the report that may be drawn by the Director General is neither determinative nor conclusive since it is ultimately for the Commission to take all aspects including views that may be expressed before it into consideration before passing final orders.”

The Builders Association of India had approached this Court challenging the order of the Competition Commission of India (Commission) in terms of which its prayer for being impleaded as an informant in proceedings before the Commission came to be rejected. The Commission in the impugned order noticed that the investigation itself had commenced based on an order passed under Section 26(1) of the Competition Act, 2002.

 

The Commission further took into account the fact that the application by the petitioner had come to be made only on December 7, 2021. On an overall conspectus of the aforesaid, the Commission bearing in mind the advanced stage at which the investigation had reached refused to accede to the request made by the petitioner for impleadment at that stage.

 

After considering the contentions of the parties extensively, the  Court firstly stated  the undisputed fact that upon conclusion of investigation, the Director General had  already submitted a report which was to be taken up by the Commission for consideration on September 28, 2022. Viewed in that light it was evident that the prayer of the petitioner to the extent that it sought to be impleaded in the investigation proceedings was rendered infructuous.

 

The Court also noted that while rejecting the application for impleadment which was made on December 7, 2021 the Commission had taken into consideration the fact that the proceedings before the Director General were “at an advanced stage of investigation”. It was in that backdrop that the Commission had declined the request made by the petitioner here. 

 

The Court also noted that the petitioner cannot, strictly speaking, claim to have a direct interest in the investigation process especially when it only stood in the shoes of an informant. While therefore the respondents may have been justified in taking the stand that the petitioner would not fall within the ambit of the expression “parties concerned”, stricto sensu, coupled with the stage at which the investigation had reached, the Court noted. 

 

Undisputedly and upon conclusion of investigation, the report of the Director General was  to now come up for consideration before the Commission.

 

 At that stage, it becomes open to any party, person or enterprise which has  a substantial interest in the outcome of proceedings or who is able to establish that its presence before the Commission is necessary in the public interest, to seek a right of audience before the Commission and to present its opinion for its consideration. That is a right which is still open to be asserted by the petitioner, the Court noted. 

 

The Court also kept in mind the fact that the report that may be drawn by the Director General is  neither determinative nor conclusive since it is ultimately for the Commission to take all aspects including views that may be expressed before it into consideration before passing final orders.

 

In view of the above, the Court found that it was not only open for the petitioner to apply to the Commission in terms of Regulation 25 of the Competition Commission of India (General) Regulations, 2009 and to seek a right to address submissions and also address a prayer for being provided a copy of the investigation report or the extracts thereof. 

 

Ultimately the interest of bodies like the present petitioner is limited to providing inputs and information to the Commission which may enable it to come to a just conclusion. Since that right is still available to be exercised, the Court finds no justification to issue any peremptory directions except to observe that it would be open to the petitioner to move the Commission under Regulation 25 of the Competition Commission of India (General) Regulations, 2009 and to address all issues before the said body, the Court observed. 

 

In light of the above stated findings, the writ petition was disposed of. 


 

In W.P.No.7231 of 2016-MAD HC- Regularisation or permanent absorption cannot be claimed as matter of right, rules Madras HC
Justice S.M.Subramaniam [26-09-2022]

Read Order: K.CHANDRAN (SR.DRIVER) V. THE CHIEF ENGINEER / PERSONNEL, TAMIL NADU ELECTRICITY BOARD AND ORS 

 

Mansimran Kaur

 

Chennai, September 27, 2022: The Madras High Court has held that the contention of the employee that if at all he was included in the first list of the Permanent Absorption, he would be getting further service benefits, is hypothetical and no employee can presume such eligibility or inclusion.

 

A Single-Judge Bench of Justice S.M.Subramaniam dismissed the instat writ petition instituted by the petitioner by observing that it did not find any perversity in respect of the permanent absorption conferred on the writ petition pursuant to the policy decision of the Board taken in B.P.(FB) No.22 dated May 14, 1999. 

 

 The order of rejection, rejecting the claim of the writ petitioner for retrospective permanent absorption from January 29, 2001  in respondent / Board's Services was  under challenge in the present writ petition.

 

 The petitioner stated  that he was working as Contract Laborer at Kundah Hydro Generation Circle of Tamil Nadu Electricity Board as Helper during the period from November 4, 1996 to August 5, 2005. The respondent in Board proceedings decided for permanent absorption of contract laborers by creating a regular post of Helper.

 

 Accordingly, the contract laborers, who were qualified as per the Board proceedings, were considered for inclusion of their names in the list for permanent absorption. The contract labourers, who had completed 480 days of services, were absorbed permanently. The list was published initially on May 2, 2001 and the name of the petitioner was not found in the said list. The petitioner approached the authorities concerned for inclusion of his name in the first list dated May 2, 2001. 

 

The petitioner contended that since he had completed 480 days of service as on December 31, 2000 and therefore, his name ought to have been included in the first list itself.  

 

After considering the submissions of the parties, the Court noted that it failed to  find any infirmity in respect of the deliberations made by the respondents in the matter of publishing the eligible list of contract laborers for grant of permanent absorption. 

 

In furtherance of the same, the Court noted that the contention of the petitioner that if at all he was included in the first list he will be getting further service benefits is hypothetical and no employee can presume such eligibility or inclusion.

 

The list of eligible candidates was prepared on May 2, 2000 and February 9, 2005 and at the first instance, the authorities found that the petitioner had not completed 480 days of contract service and therefore, his name was omitted and in the second list, the petitioner was considered, despite the fact that he served about 479 days and he was granted the benefit of permanent absorption in the year 2005, the Court further noted. 

 

Thus, without finding any perversity in respect of the permanent absorption conferred on the writ petition pursuant to the policy decision of the Board, the Bench dismissed the Writ Petition.

 

In CRM-M-13806-2022-PUNJ HC- P&H HC denies bail to PMLA accused who acted as director/proprietor of bogus entities & defaulted on repayment of loans obtained from Bank of Baroda via well planned conspiracy using forged documents in name of business entities
Justice Anoop Chitkara [19-09-2022]
 

Read Order: Suresh Seth v. Union of India & Others


 

Monika Rahar

 

Chandigarh, September 27, 2022:After considering the wrongful loss of public money, the Punjab and Haryana High Court has denied bail to a person accused of acting as the director/ proprietor of bogus entities and of defaulting on repayment of loans involving huge amount obtained fraudulently through criminal conspiracy, cheating and using forged documents in the names of business entities operated in his name and in individual capacity, from Bank of Baroda.


 

While dismissing the bail plea, the Bench of Justice Anoop Chitkara added, "The sly manner in which the accused Vikram Kumar Seth and the petitioner Suresh Seth, along with their associates and accomplices, in each other’s assistance and with knowledge acquiesced the funds, and systematically siphoned of the money, and laundered it through bogus and false entries in account books, and thereby deceived, and swindled the financial institution, prima facie points towards the commission of the offence under section 3, punishable under section 4 of the Prevention of Money Laundering Act, 2002."

 

In this case, the main accused was Sh.Vikram Seth who operated bogus entities and availed 19 loans from a bank (Bank of Baroda, G.T. Road,  Phagwara) by forging documents as genuine in the names of business entities opened in his name and in that of his family members. He defaulted on those loans resulting in wrongful loss of public money to the bank to the tune of Rs. 21.31 Crores. 

 

The role attributed to the present petitioner was he was acting as the director/ proprietor of bogus entities. It was also alleged that he defaulted on payment of loans that he availed fraudulently through criminal conspiracy, cheating, forgery and using forged documents as genuine in the names of business entities operated in his name and in individual capacity, from Bank of Baroda and thus, resulted in wrongful loss of public money.

 

Hence, the petitioner, incarcerated upon his arrest in an FIR registered under Sections 44 and 45 of the Prevention of Money Laundering Act, 2002 (PMLA Act) as defined u/s 3 R/w Section 70 and punishable u/s 4 of the PMLA Act 2002, approached the Court under Section 439 read with Section 482 CrPC and Section 45 of PMLA Act, seeking bail.

 

The petitioner's counsel argued that the petitioner was entitled to bail on parity with Vikram Seth, who was the main accused. 

 

In light of the fact that Vikram Seth was granted bail after the custody of eight months, the Court found the above-stated argument to be premature.

 

Further, the opposition to the grant of bail on the ground that his son was abroad and thus, the petitioner would also flee was found by the Court to be redundant. The Bench opined in this respect, 

 

"... simply because the petitioner’s son is abroad, and without any clear-cut finding as to whether he is a fugitive or has gone abroad for some purpose, no such adverse inference can be drawn against Vishal Seth. Even if it is 

correct, it would not be implied that the petitioner would also be a flight risk unless  such a person is a citizen of the said country or has the capacity and financial capability  to support their sustenance abroad. In the absence of any such data and averment, this  argument is not sustainable."

 

Further, the Bench also observed that it was only after the trial court, in response to the complaint, issued bailable and non-bailable warrants which led to the arrest of Vikram Seth and the petitioner.

 

"Thus, it is clear that ED filed the complaint without arresting any of the accused, and on the contrary, now, when the petitioner has come up before this court seeking bail, the same Enforcement Directorate is vehemently opposing the bail. The stand is not only contrary to the reasons for opposing bail", the Court held. 

 

Justice Chitkara further added that Given the decision of the Directorate of Enforcement not to arrest all the accused, coupled with the nature of allegations attributed to each accused, the case of every accused in the FIR stood on a different footing and decided independently of the other.

 

Against this background, the Bench opined, "The sly manner in which the accused Vikram Kumar Seth and the petitioner Suresh Seth, along with their associates and accomplices, in each other’s assistance and with knowledge acquiesced the funds, and systematically siphoned of the money, and laundered it through bogus and false entries in account books, and thereby deceived, and swindled the financial institution, prima facie points towards the commission of the offence under section 3, punishable under section 4 of the PMLA Act."

 

Thus, in view of the gravity of the offence alleged, the Court dismissed the petition. However, the petitioner was given liberty to file for a fresh bail application on the ground of seeking parity to Vikram Seth after completing the custody period equal to that undergone by Vikram Seth.


 

In Writ Petition No.3116 of 2022-BOM HC- State machinery failed to provide required protection to human life guaranteed by Article 21 of Constitution: Bombay HC grants compensation of Rs 10 lakh to woman whose husband died in accident caused due to attack by wild boar
Justices G.S. Patel & Gauri Godse [26-09-2022]

Read Order: ANUJA ARUN REDIJ V. THE STATE OF MAHARASHTRA AND ORS 


 

LE Correspondent


 

Mumbai, September 27, 2022: If any wild animal causes injury to any person, this in fact is a failure of the State Government to protect the right to life guaranteed under Article 21 of the Constitution of India, the Bombay High Court has observed.

 

After referring to the Preamble and object of Wildlife (Protection) Act, 1972, the Division Bench  of Justices G.S. Patel and Gauri Godse said, “Thus, as noted above it is an obligation of the State Government to protect wild life as well as protect citizens from any injury caused by wild life. Therefore, if any wild animal causes injury to any person, this in fact is a failure of the State Government to protect right to life guaranteed under Article 21 of the Constitution of India.”

 

Factual matrix of the case was such that the petitioner was the widow of one Shri Arun Arvind Redij who died in an accident that was caused due to an attack by a wild boar.The petitioner’s husband was working as Head Mechanic at a workshop. When he was returning from his duties and was traveling from Ratnagiri to Chanderai on his two-wheeler vehicle, through his regular commuting road at around 2 am, he encountered a wild boar. Due to attack by the wild boar the deceased met with an accident and got hit on the road, which caused serious injuries to him and ultimately, he succumbed to the injuries on February 5, 2019. 

 

The deceased was survived by his widow who was the petitioner in this petition. Petitioner made an application to the second Respondent -Regional Forest Officer,seeking compensation for the loss of life of her husband. Petitioner relied upon the Government Resolution dated July 11, 2018 (the said GR) which provides for grant of compensation in case of death of a person due to attack by a wild animal. The said GR provides for grant of compensation of Rs 10 lakh in case of death. The petitioner did not receive any response to her application for compensation. Hence, she repeated her request by another application on March 14, 2019. 

 

The Officer by his letter dated March 18, 2019 informed the petitioner that her application for compensation was rejected as the information about the accident was not intimated to the nearest Forest Officer within 48 hours of the accident. The communication further stated that the panchanama was not conducted within three days in presence of the forest officer. By giving said reasons the application made by the petitioner for compensation was rejected. 

 

Petitioner thereafter made a representation to the State Minister for Forest by making an application dated March 26, 2019. Petitioner’s representation was given no answer, hence she was constrained to approach this Court by filing the present petition. 

 

After considering the submissions of the parties, the Court noted as the panchanama recorded that the accident was caused due to involvement of wild boar, it was the duty of the said police station to inform the nearest forest office regarding the accident. The State Government did not produce a record copy of any Government Resolution or Order which mandates that such information is to be given within 48 hours. In such circumstances, the reason given by the Officer that within 48 hours information was not given to the nearest forest officer was not acceptable, the Court noted. 

 

In any case, the 48 hours timeline was irrelevant so far as the claim made by the petitioner was concerned. In any event this will not absolve the State Government from its liability to pay compensation, the Court further noted. 

 

In the present case, it was clear from the said GR that the citizens who suffer loss due to wild animals are entitled to compensation. Thus, the said GR creates an additional obligation on the State Government to protect the right to life guaranteed under Article 21 of the Constitution of India, the Bench held.

 

In our view even dehors the said GR it is the obligation of the State Government to pay reasonable compensation, as the State Government could not protect the right to life of the deceased guaranteed under Article 21 of the Constitution of India. Thus, the approach of the State Government was  not acceptable and in fact is dis-heartening, the Court observed. 

 

Considering the above circumstances and having regard to the fact that the husband of the petitioner lost his life in the accident which was caused due to attack by wild boar, the Bench held that the State machinery failed to provide the required protection to human life which is guaranteed by Article 21 of the Constitution of India. 

 

Thus, the petitioner directed the Respondents to pay an amount of Rs 10 lakh to the Petitioner  by way of compensation as per Government Resolution.the Bench also ordered that there will be cost of Rs 50,000  payable by the Respondents to the Petitioner within a period of three months.

 

In CRM-M No. 43592 of 2022-PUNJ HC- Civil matter can also have criminal implications, reaffirms P&H HC while denying pre-arrest bail to habitual offender for allegedly duping complainant of Rs 35 lakh on pretext of selling property by forging revenue records
Justice Pankaj Jain [21-09-2022]

Read Order: Rakesh Kumar v. State of Punjab


 

Monika Rahar

 

Chandigarh, September 27, 2022: Declining the grant of anticipatory bail to a habitual offender who allegedly forged revenue records to induce petitioner into paying a hefty amount as sale consideration against a plot which already to belonged to a third party, the High Court of Punjab and Haryana has reaffirmed that a civil matter can also have criminal implications and held that the present case fell within that category.

 

The Bench of Justice Pankaj Jain also added,  "Furthermore, keeping in view the antecedents of the petitioner, it cannot be said that it was one of those cases where he himself was under wrong belief and believing the revenue record he executed the sale deed."

 

Essentially, it was the case of the complainant that he purchased a plot of land from the petitioner, who projected himself as the owner, for a sale consideration of Thirty Two Lac Rupees. However, later when the complainant intended to put a pency around the said plot of land, he saw that the plot already had a fency and a gate. Upon inquiry, the complainant was told that the land belonged to someone else. 

 

Thereafter, the complainant confronted the petitioner and his co-accused, who admitted their crime and agreed to repay the full sale consideration to the complainant, but this promise was not honoured. Thus, the complainant filed a police complaint alleging that both the accused hatched a conspiracy to cheat him by showing a fake plot and grabbing his money in form of sale consideration. 

 

As a result, an FIR under Sections 419, 420 467, 468, 471, 120-B of the IPC, 1860 was registered. Thus, apprehending his arrest in the FIR, the petitioner approached the High Court for the grant of pre-arrest bail. 

 

It was the case of the petitioner's counsel that there were revenue records to show that the petitioner was owner of the land and thus, it couldn't be said that the complainant was allured and cheated. It was further contended that keeping in view that the petitioner executed a sale deed in favour of the complainant, thus, it could not be said that the petitioner had any intent to cheat. Infact, the Counsel added that this was purely a civil lis which was given contours of a criminal nature. 

 

Per contra, the State Counsel submitted that there were serious allegations with respect to forgery of the revenue record and consequential cheating. He further submitted that the complainant was robbed of his entire life's earnings. The Counsel also added that the petitioner was a habitual offender and was facing similar allegations in other FIRs as well. 

 

After hearing the parties, the Court observed at the very outset that the allegations against the petitioner related to forging revenue records and thereby inducing the complainant to part away with a heavy amount of money. Thus, the Court was of the opinion that it could not be said that the matter was purely of civil nature.

 

Against this backdrop, the Bench added, 

 

"Trite it is, that a civil matter can also have criminal implications and in the considered opinion of this Court, the present case falls within that category. Furthermore, keeping in view the antecedents of the petitioner, it cannot be said that it was one of those cases where he himself was under wrong belief and believing the revenue record he executed the sale deed."

 

Thus, without commenting further on the merits of the case and keeping in view the fact that the investigation was at a nascent stage and thus, it couldn't be derailed and belayed at this stage, and also keeping in view the seriousness of the allegations levelled against the petitioner, the anticipatory bail was declined to the petitioner. 




 

In TEST.CAS. 28/2005-DEL HC-Genuineness of Will cannot be dispelled merely on claim that it was not signed but had testator’s thumb impression, in absence of any cogent evidence in this respect: Delhi HC 
Justice Neena Bansal Krishna [26-09-2022]

 

Read Order: D.P.SACHDEVA v. STATE GOVT., OF NCT OF DELHI AND ORS 

 

Mansimran Kaur

 

New Delhi, September 27, 2022: The Delhi High Court has allowed a petition instituted under Sections 276 and 278 of the Indian Succession Act, 1995 and granted the Probate/Letter of Administration with Will to the petitioner-Executioner on payment of requisite court fees.

The Single-Judge Bench of Justice Neena Bansal Krishna was of the view that the unchallenged testimony of the petitioner proved  the authenticity and genuineness of the Will dated  May 20,  1993 of Late Smt. Basant Kaur.


 

Factual matrix of the case was such that Smt. Basant Kaur, wife of Late Subedar Shadi Lal Chadha during her lifetime, executed a Will dated May 20, 1993, while she was in possession of her mental and physical senses.  She  died on  December 13,  1997 and was survived by four sons(respondents), namely, Mr. Gian Prakash Chadha, Mr. Ram Prashad Chadha, Mr. Gur Prashad Chadha and Mr. Prakash Lal Chadha and grandson, namely, Mr. Aftab Chadha, who was  the son of Late Major Tilak Raj Chadha.

 

Smt. Basant Kaur left behind certain immovable properties but the fifth respondent- Prakash Lal Chadha was deprived of rights in the aforesaid properties, on the ground that he had taken 3/4th of the property at Kashmeri Gate, which belonged to his brothers (the above mentioned four respondents and had sufficient rental income from the tenants/shopkeepers by letting out the property.Will, had enumerated the manner in which her properties were to be distributed on her demise. She had also appointed D.P.Sachdeva, Advocate, who was the petitioner herein, as her sole Executor.



 

The subject matter of the present petition was grant of Probate/Letter of Administration in terms of the Will dated May 20, 1993. It was  further prayed that the Letter of Administration with respect to the immovable properties may be granted in terms of the Will dated May 20, 1993. 

 

After considering the rival contentions of the parties, the Court was of the opinion that the Will may be bearing the thumb impression of Smt. Basant Kaur instead of her signatures, however, the onus was on the fifth respondent that Smt. Basant Kaur used to sign or that the thumb impression on the Will was forged and fabricated.

 

 No evidence whatsoever was led by the fifth respondent in this regard, the Court noted. 

 

In furtherance of the same, the Court noted that this aspect needs to be considered in the light of the fact that the Will was duly registered in the Office of Sub-Registrar. “The genuineness of a Will cannot be held to be dispelled merely on the claim of the respondent No. 5 that it was not signed but had the thumb impression of the testator, in the absence of any cogent evidence in this respect,” the Court remarked. 

 

There was no challenge to the evidence of the petitioner or the attesting witness. The unchallenged testimony of the petitioner proved the authenticity and genuineness of the Will dated May 20, 1993 of Late Smt. Basant Kaur. The Bench held that the petitioner had successfully proven the Will of Late Smt. Basant Kaur and he was entitled to a Letter of Administration in respect of Will dated May 20, 1993, the Court noted.  

 

Allowing the petition, the Bench granted the Probate/Letter of Administration with Will to the petitioner, subject to payment of requisite court fees.

 

In CRM-M No. 42260 of 2022(O&M)-PUNJ HC- To constitute offence u/s 307 IPC, injury should not be necessarily capable of causing death; Offence would be made out if there is intention coupled with some overt act in execution thereof: P&H HC
Justice Pankaj Jain [21-09-2022]

Read Order: Kishan Singh v. State of Punjab

 

Monika Rahar

 

Chandigarh, September 27, 2022: While dealing with an anticipatory bail application filed by a habitual offender, the Punjab and Haryana High Court has held that in order to constitute offence under Section 307 IPC, the injury should not be necessarily capable of causing death. 

 

"Section 307 IPC would be made out if there is an intention coupled with some overt act in execution thereof", the Bench of Justice Pankaj Jain further held. 

 

The Court was dealing with a petition under Section 438 of the Cr.P.C. seeking pre-arrest bail in an FIR registered under Sections 324, 323, 379-B, 427, 148 and 149 IPC, 1860 (Sections 326 and 307 IPC were added later on).

 

It was the case of the petitioner's counsel that it was in fact a case of free fight between the two parties in which injuries were suffered at both sides. Further, the Counsel added that the complainant party put various efforts to influence the investigation. 

 

In this respect, the Counsel argued that there were two MLRs with respect to the injury suffered by a member of the complainant party, one prepared by a government doctor while the other was by a private hospital doctor. He submitted that the MLR given by the government hospital ought to have been given credence as compared to that which has been given by the private hospital. 

 

Also, it was his case that the size of the incised wound which was attributed to the petitioner was doubled in the MLR reported by the private hospital. It was also urged by the Counsel that there was an 18 hour delay in lodging the FIR which was fatal to the case of the prosecution. He thus submitted that keeping in view the aforesaid facts, the petitioner should be allowed the concession of pre-arrest bail.

 

On the other hand, the State Counsel argued that the nature of injuries caused by the datar blow by the petitioner and the fact that he was a habitual offender, facing three more FIRs of assault wherein the allegations of similar nature were levelled, would dis-entitled him from any such relief.

 

After hearing the parties, the Court termed the argument of the petitioner's counsel on the delay in lodging the FIR being fatal to the prosecution's case, as "mis-conceived and misplaced". 

 

"Once the petitioner himself is aggrieved of the fact that the version has not been recorded and action is not being taken, delay in the FIR cannot be held to the peril of the prosecution" the Bench held. 

 

Further, while observing that the petitioner gave datar blow that too on the vital part of the body of Sahil Sharma, the Court held that  trite it is that in order to constitute Section 307 IPC, the injury should not be necessarily capable of causing death. 

 

"Section 307 IPC would be made out if there is an intention coupled with some overt act in execution thereof", the Court held. 

 

Thus, keeping in view the seriousness of the allegations levelled against the petitioner, the Court held that no ground for grant of anticipatory bail was made out. 

 

In Civil Appeal No. 6955 of 2022-SC- If employee has suppressed or given false information in regard to matters having bearing on his fitness or suitability to post, then he can be terminated from service: SC dismisses appeal of Ex-CRPF Constable
Justices Surya Kant & J.B.Pardiwala [26-09-2022]

Read Judgment: SATISH CHANDRA YADAV Vs. UNION OF INDIA & ORS

 

Tulip Kanth

 

New Delhi, September 27, 2022: Enunciating the principles to be considered while dealing with cases wherein employee suppresses material information in the requisite forms at the time of employment, the Supreme Court has dismissed the appeal of a former CRPF constable whose services were terminated on account of withholding relevant information regarding criminal case against him.

 

“The suppression of material information and making a false statement in the verification Form relating to arrest, prosecution, conviction etc., has a clear bearing on the character, conduct and antecedents of the employee. If it is found that the employee had suppressed or given false information in regard to the matters having a bearing on his fitness or suitability to the post, he can be terminated from service”, the Division Bench of Justice Surya Kant and J.B.Pardiwala clarified.

 

The appellant in this case had been serving as a Constable (General Duty) with the CRPF. He was recruited as a temporary employee of the post of Constable (GD) in the CRPF in 2014 and he reported to the 179th Battalion. While filling up the requisite verification Form–25, in response to the question whether any case was pending against him, the appellant answered in the negative. When the Collector received the Character and Antecedents verification Form, he informed the Deputy Inspector General of Police that a  criminal case had been registered against the appellant for the offences punishable under Sections 147, 323, 324, 504 and 506 of the Indian Penal Code.

 

Thereafter, the services of the appellant herein came to be terminated in exercise of the powers conferred under Rule 5(1) of the Central Civil Services (Temporary Service) Rules, 1965 on the ground that he had concealed the information as aforesaid while filling up the Form–25. Filing of writ petition was also of no use to the appellant as he wasn’t reinstated. Hence, the appellant approached the Top Court.

 

Certain facts that the Court took note of were such that upon registration of the FIR, the appellant had filed two applications in the Court of the Chief Judicial Magistrate, one application seeking to surrender himself before the Court and the second application seeking for regular bail. The appellant upon surrendering was taken in deemed judicial custody and was ordered to be released on bail and the appellant was not actually put behind bars as asserted by the appellant. The Bench also considered the fact that at the time when the services of the appellant came to be terminated, he was a probationer. 

 

After referring to its judgments in Avtar Singh v. Union of India and Others, (2016) 8 SCC 471, Jainendra Singh v. State of U.P. Tr. Prinl. Sec. Home and Others, Commissioner of Police, New Delhi and Another v. Mehar Singh, Union Territory, Chandigarh Administration and Others v. Pradeep Kumar and Another,the Apex Court shortlisted the broad principles of law which should be made applicable to the litigations of the present nature. 

 

As per the Bench, in a case where the employee has made a declaration truthfully and correctly of a concluded criminal case, the employer still has the right to consider the antecedents, and cannot be compelled to appoint the candidate. The acquittal in a criminal case would not automatically entitle a candidate for appointment to the post. It would be still open to the employer to consider the antecedents and examine whether the candidate concerned is suitable and fit for appointment to the post, the Bench noted.

 

The Bench further made it clear that the generalisations about the youth, career prospects and age of the candidates leading to condonation of the offenders’ conduct, should not enter the judicial verdict and should be avoided. It was opined by the Bench that the Court should inquire whether the Authority concerned whose action is being challenged acted mala fide, if there is any element of bias in the decision of the Authority and whether the procedure of inquiry adopted by the Authority concerned was fair and reasonable.

 

Coming to the scope of Appeal under Article 136 of the Constitution, the Bench held that unless, it is shown that exceptional and special circumstances exist,  substantial and grave injustice has been done and the case and question present features of sufficient gravity to warrant a review of the decision appealed against, this Court would not exercise its overriding powers under Article 136(1).

 

“The explanation offered by Satish Chandra Yadav is nothing but his own understanding of what is prosecution and pendency of a criminal case. If he knows that trial is deemed to have commenced with the framing of charge, then we are sure he knows and understands what is criminal prosecution,” said the Bench while not agreeing with the case put forward by the appellant.

 

Noting that it was not the appellant’s involvement in the criminal case which was then pending, and in which he had been acquitted subsequently, the Bench stated that the fact that he had withheld relevant information while filling in the verification Form, was the reason that had led to the termination of his services. He could be said to have exhibited or displayed such a tendency which shook the confidence of the respondent.

 

Observing that the judgment relied upon by Madhavi Divan, ASG in Kendriya Vidyalaya Sangathan and Others v. Ram Ratan Yadav was fully applicable to the instant appeal and the fact that there was a deliberate attempt on the part of the appellant  to withhold the relevant information, the Bench held that it was this omission which had led to the termination of his service during the probation period. Thus, the appeal was dismissed by the Bench.

In CRM-M-35031-2019(O&M)-PUNJ HC- When complaint regarding failure of maintenance of register in accordance with Equal Remuneration Act, 1976 is filed, at that point in time Labour Department inspection team ought to have examined record to establish as to who was employer and occupier of premises: P&H HC 
Justice Jasjit Singh Bei [20-09-2022]

 

 

Read Order: YOSHINORI ONDA V. STATE OF HARYANA & ANR.

 

Monika Rahar

 

Chandigarh, September 26, 2022: The Punjab and Haryana High Court has held that when a criminal complaint alleging that the 'occupier' of a premise inspect by team of Labour Department failed to maintain a register of workers in Form D in violating Section 8 thereby committing an offence under Section 10(1)(a) of the Equal Remuneration Act, 1976, then at that point in time the Department ought to have examined its record to establish as to who was the 'employer' and 'occupier'.  

 

In this case before the Bench of Justice Jasjit Singh Bedi, on an inspection carried out by a joint inspection team of the Labour Department of the Government of Haryana, M/s Denso Haryana Private Limited, Gurugram was found to be violating the provisions of different labour legislations, including the Equal Remuneration Act, 1976.

 

As a result of this inspection, a criminal complaint alleging that the 'occupier' failed to maintain the register of workers in Form D in violating Section 8 thereby committing an offence under Section 10(1)(a) of the Equal Remuneration Act, 1976, was filed. In pursuance of this complaint, summoning order was against the petitioner only.

 

Hence, the present quashing plea was filed. 

 

The petitioner's counsel contended that firstly, the offence (if any) was committed by the Company (M/s Denso Haryana Private Limited) which is a juristic person and thus, it was mandatory to implead the Company as an accused before criminal action was sought to be initiated against its employer/occupier. He further contended that in fact sanction for prosecution was also accorded for the Company and not with regard to the individual i.e. the present petitioner.

 

Further, while contending that the term 'occupier' was not defined under the Equal Remuneration Act, 1976, the Counsel argued that since the Company M/s Denso Haryana Private Limited was a Company duly incorporated, anyone of its Director could be deemed to be an 'occupier'.

 

After considering the fact that in this case, the sanction for prosecution was accorded for the Company, and in light of a Gauhati High Court wherein it was held that where the Company has not been arrayed as an accused in prosecution under the Equal Remuneration Act, 1976, proceedings against the Directors/ Officers of the Company cannot be sustained, the Court held, 

 

"on first principle itself the complaint (Annexure P-1) and the summoning order (Annexure P-2) are liable to be quashed."

 

Further, on the question of occupier, the Court noted that the explanation given for recording the petitioner as the 'occupier' was that voluminous record relating to the 'occupier' and 'Manager' could not be carried at the time of inspecting the premises and therefore what was told at the time of the inspection was what was recorded. 

 

This response was found by the Court to be  fallacious. "When the complaint was filed, at that point in time the Department ought to have examined its record to establish as to who was the 'employer' and 'occupier'. Therefore, the stands of the respondents does not cut much ice. The proceedings are liable to be quashed on this ground as well", the Bench held. 



 

In CRA-D-458-DB-2010 (O&M)-PUNJ HC- There can never be more graver and heinous crime than father committing rape on his own daughter: P&H HC reiterates Top Court’s remark while upholding conviction of man for repeatedly raping his minor daughter
Justices  Sureshwar Thakur & N. S. Shekhawat [15-09-2022]

Read Order: Roop Lal v. State of Punjab

 

Monika Rahar

 

Chandigarh, September 26, 2022:  While dealing with an appeal by a rape accused, convicted for repeatedly raping his minor daughter, the High Court of Punjab and Haryana has remarked that a there can never be more graver and heinous crime than the father committing rape on his own daughter because then, the protector becomes the predator. 

 

Further, on the evidentiary value of the prosecutrix, the Bench of Justices  Sureshwar Thakur and N. S. Shekhawat held, "The testimony of the victim in such cases is vital and unless there are compelling reasons, which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused, where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury."

 

The case of the prosecution was that the accused, who unfortunately was the father of the victim, had been repeatedly committing sexual assault and rape on her for about 2 months. 

 

The Trial Court convicted the accused under Section 376 of the IPC and sentenced him to undergo rigorous imprisonment for 14 years along with fine. Hence, the present appeal was filed. 

 

After hearing the parties, the Court perused the testimony of the victim and found it to be worthy of credence. Further, on the law governing the evidentiary value of such prosecutrix's testimony, the Bench, 

 

"It is a well settled preposition of law that the conviction for the offence under Section 376 of IPC can be based on the sole testimony of the rape victim."

 

Further, the Bench also held that the testimony of the victim in such cases is vital and unless there are compelling reasons, which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused, where her testimony inspires confidence and is found to be reliable. 

 

"Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury", the Bench asserted. 

 

Further, rejecting the argument of the appellant's counsel to the effect that it is impossible to have sexual intercourse with a minor child of 7 years, whose vagina is not fully developed as to admit a fully grown penis, the Court held that the Supreme Court has time and again held the penetration of the male organ within the labia majora or the vulva or pudenda with or without any emission or semen or even an attempt at penetration into the private part of the victim completely, partially or slightly would be enough for the purpose of Section 375 IPC.

 

Accordingly, upholding the impugned judgement and order passed by the Court of Additional Sessions Judge, Jalandhar, the Court dismissed the appeal.