INDIAN LAW REPORTS
DELHI SERIES
2011(Containing cases determined by the High Court of Delhi)
VOLUME-6, PART-II(CONTAINS GENERAL INDEX)
EDITOR
MR. A.S. YADAVREGISTRAR (VIGILANCE)
CO-EDITORSMS. NEENA BANSAL KRISHNA
(ADDITIONAL DISTRICT & SESSIONS JUDGES)
REPORTERS
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MS. SHALINDER KAUR MR. KESHAV K. BHATI
MR. V.K. BANSAL JOINT REGISTRAR
MR. L.K. GAUR
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(ADDITIONAL DISTRICT
& SESSIONS JUDGES)
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NOMINAL-INDEX
VOLUME-VI, PART-II
DECEMBER, 2011
Pages
Deepti Mandlaus v. State (Govt. of NCT of Delhi) and Anr. ............... 453
Satpal Singh v. Delhi Sikh Gurdwara Management Committee
& Anr. .................................................................................................... 462
M/s. Spice Communications Limited & Anr. ........................................ 470
Bijay v. The State (G.N.C.T. of Delhi) ................................................. 515
Swaran Singh v. State ........................................................................... 527
Yogender Kumar & Another v. Ram Kishan Gupta and Anr. ............... 531
M/s Bhole Baba Dairy Industries Ltd. v. Union of India and Ors. ........ 537
Jaipal v. State ......................................................................................... 553
Braham Prakash Dutta and Anr. v. Railway Protection Force
and Ors. ......................................................................................... 576
North Delhi Power Ltd. v. Surender Kumar ......................................... 584
Delhi Metro Rail Corporation Ltd. v. Samrat Ranga and Ors. .............. 595
M. Arun Ahluwalia v. Arun Oberoi & Anr. ........................................... 605
R.K.P. Nishad v. C.B.I. ......................................................................... 635
Shri M. K. Sharma and Anr. v. Shri SH Tek Chand and Others .......... 652
Anita Devi & Others v. United India Assurance Co. Ltd. & Ors. ........ 673
State v. Sunil Dutt ................................................................................. 679
Dharambir & Anr. v. State .................................................................... 686
C.S. Agarwal v. State & Ors. ............................................................... 701
M/s Sterling Agro Industries Ltd. v. Union of India & Ors. ................ 729
M/s. Krizm Hotels Private Limited v. M/s. Vaishnavi Estates
(P) Ltd. ........................................................................................... 759
Ashok Chachra v. The State .................................................................. 789
Suresh Kalmadi (In Judicial Custody) v. Union of India
& Ors. ........................................................................................... 795
S.P. Arya v. Union of India & Ors. ...................................................... 808
(ii)
(i)
NOMINAL-INDEX
VOLUME-VI, PART-II
DECEMBER, 2011
CODE OF CIVIL PROCEDURE, 1908—Order XXI Rule 97—
Suit for specific performance of agreement to sell decreed
exparte in favour of plaintiff against the defendant, followed
by registration of sale deed and mutation of property in the
name of plaintiff—Before the execution court, the petitioners/
objectors contended that they had purchased the property from
one Pushpa Singh who had purchased the same from the
defendant prior to the date of agreement to sell between
plaintiff and the defendant and they are in peaceful
possession—Execution court dismissed the objections, holding
that since registered sale deed was executed in favour of
plaintiff and mutation done under the orders of the court, the
objections were not maintainable—Held, the record shows that
the address of the defendant was not correctly mentioned in
the suit though the same was known to the plaintiff and this
shows that contention of the objectors that fraud was played
upon the court cannot be ruled out —Further held, the very
purpose of Order XXI Rule 97&98 CPC is to avoid filing of
separate suit and execution court empowered to conduct
detailed inquiry on the objections—Matter remanded back to
the execution court to decide the objections afresh.
Yogender Kumar & Another v. Ram Kishan Gupta
and Anr. .......................................................................... 531
— Order 1 Rule 10—Motor Vehicles Act, 1988—Section 2(30)-
165—Order of Motor Accident Claims Tribunal rejecting
Petitioner’s application seeking impleading of licensee who had
been granted permission for operation of Feeder Buses for
Metro Link Feeder Bus Project of DMRC Ltd. challenged
before HC—Plea taken, petitioner had entered into agreement
whereunder licensee was granted permission for operation of
feeder buses for Metro Feeder Bus Project—Licensee had
undertaken to indemnify petitioner against accident/claims/
liability arising out of operation of buses—There was no privity
of contract between petitioner and injured victim—Rejection
of application tantamounted to pre-judging issue of liability
even without a trial—Held—Provisions of M.V. Act envisage
that claims Tribunal should hold enquiry to ascertain liabilities
of persons who are involved in use of vehicle or persons who
are vicariously liable—Issue of possession or control of vehicle
assumes importance and may be determining factor in fixing
liabilities of parties to claim petition—Order rejecting
petitioner’s application for impleadment of licensee set aside.
Delhi Metro Rail Corporation Ltd. v. Samrat Ranga
and Ors. .......................................................................... 595
— Section 16, 20 and 22—Legal question framed as to whether
Delhi court has territorial jurisdiction to entertain and try a suit
for specific performance relating to a property situated outside
Delhi—On the basis of legal precedents, held that Delhi Courts
have no jurisdiction to entertain and try a suit for specific
performance relating to an immovable property situated outside
Delhi because the relief cannot be entirely obtained through
the personal obedience of the defendant under the proviso to
Section 16 CPC as the defendant will have to go out of Delhi
to get the sale deed registered—Plaints of both suits directed
to be returned to the plaintiffs.
Shri M. K. Sharma and Anr. v. Shri SH Tek Chand
and Others ...................................................................... 652
— Section 157—Officer In-charge of Police Station enjoined
under Section 157 to forward copy of FIR forthwith to Illka
Magistrate empower to take cognizance of an offence so that
(iv)
(iii)
to as RPL) made a representation for the purpose of securing
investment to Mr. Sameer Kohli, director of M/s Kohli Housing
and Development Pvt. Ltd—Intended to develop one SEZ on
250 acres land situated at Delhi-Jaipur Highway owned by
RPL—Petitioner received in-principal approval from the Govt.
of India for the project—On the representation, respondent
no. 3 agreed to buy 74% shares worth Rs. 185 crores in the
Special Purpose Vehicle (SPL) formed for this purpose—MOU
was signed—Advance payment of Rs. 40 crores was made
by respondent no. 3 on the condition that either this advance
will be refunded back to him or the land of 250 acres would
be transferred in favour of him in case the SEZ notification
is not received by 31st December 2008—Subsequently an
amount of Rs. 3 crores was given to the petitioner by
respondent no. 3—No notification could be received by RPL
by 31.12.2008—Mr. D.K. Jain, the other director of RPL
issued a public notice revoking all authority given to the
petitioner to act on behalf of RPL—After expiration of the dead
line, respondent no.3 demanded his money back, but in Vain—
Respondent made a complaint, on the basis of which, FIR
no. 266/09 was registered against the appellant herein u/s 420/
406/120-B IPC—Appellant challenged the registration of FIR
and sought quashing of the same—Hon’ble Single Judge
dismissed the petition—Appellant preferred the Letter Patent
Appeal under clause 10 of the Letter Patent Act—Respondent
took a primary objection to the maintainability of the Letter
Patent Appeal on the point that judgment was passed in
exercise of criminal jurisdiction and the Letter Patent appeal
against the order is clearly barred by Clause 10 and 18 of
Letters Patent Act—Held—Proceedings under Article 226 of
the Constitution would be treated as original civil proceedings
only when it concerns civil rights—A fortiori, if it concerns
a criminal matter, then such proceedings would be original
criminal proceedings—Letter Patent would lie when the Single
(vi)(v)
prosecution may not concoct facts and set up false case
against an accused—However, mere delay in forwarding the
copy of FIR to the Magistrate under Section 157 which was
otherwise recorded promptly is of no consequence, if the
Court is otherwise convicted about the truthfulness of the
prosecution case and there is otherwise positive and
trustworthy evidence on record.
Dharambir & Anr. v. State ........................................... 686
— Order 1 Rule 10—Motor Vehicles Act, 1988—Section 2(30)-
165—Order of Motor Accident Claims Tribunal rejecting
Petitioner’s application seeking impleading of licensee who had
been granted permission for operation of Feeder Buses for
Metro Link Feeder Bus Project of DMRC Ltd. challenged
before HC—Plea taken, petitioner had entered into agreement
whereunder licensee was granted permission for operation of
feeder buses for Metro Feeder Bus Project—Licensee had
undertaken to indemnify petitioner against accident/claims/
liability arising out of operation of buses—There was no privity
of contract between petitioner and injured victim—Rejection
of application tantamounted to pre-judging issue of liability
even without a trial—Held—Provisions of M.V. Act envisage
that claims Tribunal should hold enquiry to ascertain liabilities
of persons who are involved in use of vehicle or persons who
are vicariously liable—Issue of possession or control of vehicle
assumes importance and may be determining factor in fixing
liabilities of parties to claim petition—Order rejecting
petitioner’s application for impleadment of licensee set aside.
Delhi Metro Rail Corporation Ltd. v. Samrat Ranga
and Ors. .......................................................................... 595
CODE OF CRIMINAL PROCEDURE, 1973—Section 482—
Clause 10 and 18 of Letters Patent Act—Appellant C.S.
Aggarwal, Director of M/s Rockman Projects Limited (referred
Judge decides the writ petition in proceedings concerning civil
rights—On the other hand, if these proceedings are concerned
with rights in criminal law domain, then it can be said that
the Single Judge was exercising his ‘criminal jurisdiction’
while dealing with such a petition filed under Article 226 of
the Constitution—In a petition under Article 226 of the
Constitution when the High Court is exercising extraordinary
jurisdiction, the nature of proceedings, whether civil or
criminal, would depend upon the nature of right violated and
the nature of relief sought in the said petition—Writ of this
nature filed under Article 226 of the Constitution—Seeking
quashing of such an FIR would therefore be ‘‘criminal
proceedings’’ and while dealing with such proceedings, the
High Court exercises its ‘‘criminal jurisdiction’’—The LPAs
are barred and not maintainable—Dismissed.
C.S. Agarwal v. State & Ors. ...................................... 701
— Section 311A, Constitution of India, 1950—Article 20—
Appellants preferred appeals to challenge their conviction under
Section 302, 201, 384 read with Section 34 of Act—They
urged, one of circumstance i.e. delivery of ransom note in
the handwriting of the appellant Jaipal not proved—Also police
did not have power to take accused's handwriting under
Section 73 of Indian Evidence Act—Moreover, Section 311
A of Cr.P.C. was incorporated in the statute book only w.e.f.
23.06.2006 and was not retrospective in its application—Held:-
Obtaining the handwriting of an accused during investigation
is not hit by Article 20 (3) of the Constitution of India as an
accused cannot be said to be a witness against himself, if he
is asked to give his handwriting for purpose of verification
of any document purported to be in his handwriting—Some
forms of testimonial acts lie outside the scope of Article
20(3)—Obtaining appellant Jaipal's handwriting during
investigation not illegal.
Jaipal v. State................................................................. 553
COMPANIES ACT, 1956—Section 391 to 394—Jurisdiction to
decide the issue of arrangement of the companies—
Department of Telecommunications (DoT) filed applications
for recall of order dated 05.02.2010 allowing amalgamation
of Spice Communication Limited (Spice) with Idea Cellular
Limited (Idea)—Contending that material documents—DoT’s
letter rejecting the amalgamation and License Agreements and
Merger Guidelines 2008 (guidelines) Suppressed—Wherein it
was clearly mentioned that the prior permission of DoT was
mandatory for filing a petition for merger before the Court-
Unified Access Services License Agreements (licenses)—
Clause 6.1 and 6.2 prohibit transfer of licences without prior
permission of DoT whereas clause 6.3 is restricted to
assignment of license agreement pursuant to approval of
merger scheme by this court under section 391-394 of the
Act—Order approving scheme has caused prejudice to DoT
Delay in filing the explanation does not disentitle DoT from
claiming reliefs sought—Petitioner-Companies contended that
DoT has no locus standi-Under clause 6.3 of license—DoT
has no say in the merger of companies—Guidelines are law
and cannot be suppressed—However admitted
correspondences with DoT-understanding was that DoT had
no objections—DoT on the other hand had suppressed the
letters written by the petitioner Companies—no violation of
guidelines—Clause 6.3 of licenses stipulates that approval of
DoT is to be obtained only on sanction of scheme by the High
Court—Sanction for merger of companies cannot be
conditional upon any statutory or regulatory permission.
Held—High Court alone has exclusive jurisdiction to decide
the issue of arrangement of companies merger of companies
does not result in merger of licenses but all merger/
amalgamation of companies necessarily results in transfer of
licenses for which prior permission is required under clause
(viii)(vii)
6.1 of licenses—Prior permission under clause 6.1—Attracted
in the present case—Petitioner—Companies had suppressed
material documents to obtain unfair advantage—Sanctioned
scheme is binding on all shareholders, creditors—DoT is a
necessary party being a licensor and regulator—Grave
prejudice caused to DoT—However delay of 13 months in
filing the application for recall of order—Not explained—
Situation on ground—Spice lost its entity—Employees have
become employees of idea—Delisted from stock exchange-
not possible to recall the order in entirety—To bring the
scheme in conformity with the guidelines—The order was
modified—Six overlapping licenses of Spice would not stand
transferred to Idea till DoT grants permission—Overlapping
licenses of Spice shall stand transferred/vested with DoT—
Spectrum allocated would revert back to DoT—In case DoT
refuses or grants conditional approval of transfer licenses—
Idea can challenge it before TDSAT-customers to be provided
uninterrupted services in overlapping license area-Ministry of
Corporate Affairs directed to conduct study and suggest
remedial measures to ensure no party can obtain sanction of
a scheme of arrangement without placing on record relevant
materials.
M/s. Spice Communications Limited & Anr. ............... 470
CONSTITUTION OF INDIA, 1950—Article 19(1) (a), 21, 105
(1) and 326—Petitioner, a Parliamentarian in Judicial Custody
filed writ petition for permission to attend Parliament in Judicial
Custody—Plea taken, Parliamentarian has freedom of speech
subject only to rules and standing orders regulating procedure
of Parliament none of which prevents petitioner from attending
Parliament and speaking while in custody—Constitutional right
of petitioner to participate in Parlimentary proceedings and right
to vote in Parliament as elected representative is essence and
expression of Parliamentary democracy—Parliamentary
democracy is basic feature of Constitution of India and there
is no reason for denying such participation to petitioner while
same is possible in judicial custody—Refusing participation in
Parliamentary proceedings to petitioner would deny him
opportunity to fulfill his constitutional objections to attend
proceedings of Parliament—Unless petitioner is so permitted,
Parliamentary Constituency which had elected him would go
unrepresented in Parliament—Public interest demands that
petitioner, be permitted to attend Parliament—Per contra, plea
taken offences with which petitioner is charged with are
extremely grave and serious causing huge wrongful pecuniary
benefits to certain private parties and consequent loss to public
exchequer—Some of other accused officials of the Organizing
Committee for Common Wealth Games of which petitioner
was chairman are still absconding—CBI apprehends that
petitioner may misuse liberty sought by way of present petition
to influence witnesses and tamper with evidence—Held—
Argument as raised by petitioner amounts to placing Members
of Parliament (M.P.) at a pedestal higher than their electorate—
Argument assumes work of a M.P. is more sacred and
important than work/vocation in which citizens who have
elected said Parliamentarian may be engaged in—Such
argument is archaic and creates two classes of citizens as in
a monarchy i.e. king and subject and is alien to Constitution—
Merely because petitioner is a Parliamentarian does not entitle
him to claim any exception from effect of being in detention—
It is not case of petitioner that vote of petitioner on any aspect
is vital or that without such participation citizens of his
constituency would suffer—Petitioner, in past, as per his
convenience has been missing Sessions of Parliament—When
petitioner could afford to miss parliament to spend time on
National Games or Participate in Games at China, his desire/
keenness to attend parliament can only be understood as
attempt for fresh air outside prison walls—Petitioner is not
entitled to relief claimed—Petition dismissed with costs of Rs.
(x)(ix)
1,00,000/- payable to Prime Minister’s National Relief Fund.
Suresh Kalmadi (In Judicial Custody) v. Union of India
& Ors. ............................................................................. 795
— Article 226, Guardian and Wards Act, 1890—Section 7—Writ
of Habeas Corpus—Petitioner, the mother seeks issuance of
Writ of Habeas Corpus directing her husband Respondent No.
2 to produce their minor son before Hon’ble High Court—
Petitioner, Respondent No. 2 and the minor son are Indian
Citizens residing in Canada since 04.04.2009—Respondent No.
2 and minor son came to India-Did not return—Before the
petitioner could move Court, respondent filed a petition under
Guardian and Wards Act and Section 6 of Hindu Minority and
Guardianship Act, 1956 for appointment of himself as sole
guardian—Petitioner moved the Superior Court of Justice, in
Canada—Held the child was an Indian Citizen—When the
Canadian Court passed the orders, the Guardianship Court in
New Delhi was already in seisin of the custody matter—No
comity of Courts Principle to apply—When child was brought
to India no custody dispute was pending—Not in violation of
any Court’s order—Golden Rule to be followed—Welfare of
the child—Minor’s right to life and liberty guaranteed under
Article 21 of the Constitution of India—Question to decide
which parent’s care is best for the child—Petition not
allowed—Custody by Respondent No. 2 not unlawful or ill
Deepti Mandlaus v. State (Govt. of NCT of Delhi)
and Anr. .......................................................................... 453
— Article 226—Code of Criminal Procedure, 1973—Section
482—Clause 10 and 18 of Letters Patent Act—Appellant C.S.
Aggarwal, Director of M/s Rockman Projects Limited (referred
to as RPL) made a representation for the purpose of securing
investment to Mr. Sameer Kohli, director of M/s Kohli Housing
and Development Pvt. Ltd—Intended to develop one SEZ on
250 acres land situated at Delhi-Jaipur Highway owned by
RPL—Petitioner received in-principal approval from the Govt.
of India for the project—On the representation, respondent
no. 3 agreed to buy 74% shares worth Rs. 185 crores in the
Special Purpose Vehicle (SPL) formed for this purpose—MOU
was signed—Advance payment of Rs. 40 crores was made
by respondent no. 3 on the condition that either this advance
will be refunded back to him or the land of 250 acres would
be transferred in favour of him in case the SEZ notification
is not received by 31st December 2008—Subsequently an
amount of Rs. 3 crores was given to the petitioner by
respondent no. 3—No notification could be received by RPL
by 31.12.2008—Mr. D.K. Jain, the other director of RPL
issued a public notice revoking all authority given to the
petitioner to act on behalf of RPL—After expiration of the dead
line, respondent no.3 demanded his money back, but in Vain—
Respondent made a complaint, on the basis of which, FIR
no. 266/09 was registered against the appellant herein u/s 420/
406/120-B IPC—Appellant challenged the registration of FIR
and sought quashing of the same—Hon’ble Single Judge
dismissed the petition—Appellant preferred the Letter Patent
Appeal under clause 10 of the Letter Patent Act—Respondent
took a primary objection to the maintainability of the Letter
Patent Appeal on the point that judgment was passed in
exercise of criminal jurisdiction and the Letter Patent appeal
against the order is clearly barred by Clause 10 and 18 of
Letters Patent Act—Held—Proceedings under Article 226 of
the Constitution would be treated as original civil proceedings
only when it concerns civil rights—A fortiori, if it concerns
a criminal matter, then such proceedings would be original
criminal proceedings—Letter Patent would lie when the Single
Judge decides the writ petition in proceedings concerning civil
rights—On the other hand, if these proceedings are concerned
with rights in criminal law domain, then it can be said that
the Single Judge was exercising his ‘criminal jurisdiction’
(xii)(xi)
while dealing with such a petition filed under Article 226 of
the Constitution—In a petition under Article 226 of the
Constitution when the High Court is exercising extraordinary
jurisdiction, the nature of proceedings, whether civil or
criminal, would depend upon the nature of right violated and
the nature of relief sought in the said petition—Writ of this
nature filed under Article 226 of the Constitution—Seeking
quashing of such an FIR would therefore be ‘‘criminal
proceedings’’ and while dealing with such proceedings, the
High Court exercises its ‘‘criminal jurisdiction’’—The LPAs
are barred and not maintainable—Dismissed.
C.S. Agarwal v. State & Ors. ...................................... 701
— Article 226—Petitioner industry is situated at Industrial area
Q-5-6, Ghirongi, Distt. Bhind, Malanpur in the State of
Madhya Pradesh—Assistant Commissioner of Custom, ICD,
Malanpur ordered that no draw-back facility is admissible to
the petitioner as it had by way of procuring duty free inputs
under Rule 19 (2) of the Central Excise Rules, 2002,
contravened clause (ii) of the second proviso to Rule 3 (1)
of the Central Excise Drawback Rules, 1995 and also
condition No. 7 (F) of the notification No. 68/2007-Cus (NT)
and condition No. 8 (F) of the notification No. 103/2008-Cus
(NT)—Petitioner preferred revision—Revision dismissed by
Revisionary Authority, Government of India, Ministry of
Finance, Department of Revenue—Petitioner challenged the
legal substantiality and sustainability of the order dated
09.07.2010 passed by Revisionary Authority—Division Bench
referred the matter for reconsideration by Full Bench doubting
the correctness and soundness of the decision in New India
Assurance Company Limited v. Union of India and others,
AIR 2010 Delhi 43 (FB)—Full Bench thought it appropriate
that the matter should be considered by a larger Bench—Larger
Bench constituted and matter was placed before the Larger
Bench—Controversy is pertaining to the jurisdiction of Hon’ble
High Court of Delhi in these writ petitions under Article 226—
Held—The principle of forum conveniens in its ambit and
sweep encapsulates the concept that a cause of action arising
within the jurisdiction of the Court would not itself constitute
to be the determining factor compelling the Court to entertain
the matter—While exercising jurisdiction under Articles 226
and 227 of the Constitution of India, the Court cannot be
totally oblivious of the concept of forum conveniens—The
Full Bench in New India Assurance Co. Ltd. (supra) has not
kept in view the concept of forum conveniens and has
expressed the view that if the appellate authority who has
passed the order is situated in Delhi, then the Delhi High Court
should be treated as the forum conveniens—Findings and
conclusions of the Full Bench in New India Assurance
Company Limited (supra) Modified and conclusions in
seriatim Stated as follows : (a) The finding recorded by the
Full Bench that the sole cause of action emerges at the place
or location where the tribunal/appellate authority/revisional
authority is situate and the said High Court i.e., Delhi High
Court cannot decline to entertain the writ petition as that would
amount to failure of the duty of the Court, cannot be accepted
inasmuch as such a finding is totally based on the situs of
the Tribunal/Appellate Authority/Revisional Authority totally
ignoring the concept of forum conveniens (b) Even if a
miniscule part of cause of action arises within the jurisdiction
of this court, a writ petition would be maintainable before this
Court; however, the cause of action has to be understood as
per the ratio laid down in the case of Alchemist Ltd. (c) An
order of the Appellate authority constitutes a part of cause of
action to make the writ petition maintainable in the High Court
within whose jurisdiction the appellate authority is situated—
Yet, the same may not be the singular factor to compel the
High Court to decide the matter on merits—The High Court
may refuse to exercise its discretionary jurisdiction by invoking
(xiv)(xiii)
the doctrine of forum conveniens. (d) The conclusion that
where the appellate or revisional authority is located constitutes
the place of forum conveniens as stated in absolute terms by
the Full Bench is not correct as it will vary from case to case
and depend upon the lis in question—(e) The finding that the
court may refuse to exercise jurisdiction under Article 226 if
only the jurisdiction is invoked in a malafide manner is too
restricted/constricted as the exercise of power under Article
226 being discretionary, cannot be limited or restricted to the
ground of malafide alone—(f) While entertaining a writ petition,
the doctrine of forum conveniens and the nature of cause of
action are required to be scrutinized by the High Court
depending upon the factual matrix of each case in view of
what has been stated in Ambica Industries (supra) and Adani
Exports Ltd. (supra)—(g) The conclusion of the earlier
decision of the Full Bench in New India Assurance Company
Limited (supra) ‘‘that since the original order merges into the
appellate order, the place where the appellate authority is
located is also forum conveniens’’ is not correct—(h) Any
decision of this Court contrary to the conclusions enumerated
hereinabove stands overruled—Ex consequenti, reference
answered by partially overruling and clarifying the decision
in New India Assurance company Limited (supra) in the above
terms. Matters directed to be listed before the appropriate
Division Bench for appropriate consideration.
M/s Sterling Agro Industries Ltd. v. Union of India
& Ors. ............................................................................. 729
— Writ—Service matter—LIC (staff) Regulations, 1950—
Regulation 39—Industrial Disputes Act, 1947—Petitioner
appointed in LIC as office attendant in 1963—Posted in
Meerut Division—Became a trade unionist—Transferred to
Mhow in Madhya Pradesh in November 1978—Did not
comply with the transfer order—Letter dated 22.12.1978
directing the petitioner to join his duties at Mhow-did not join
duties-continued to address leave applications to Divisional
Office at Meerut—Again, vide letter dated 05.02.1979 asked
to join duty at Mhow-Did not join-continued to defy despite
another letter dated 21.08.1979—Pleaded illness-Panel of
medical examiners at Medical College, Meerut constituted-
petitioner challenged the constitution of panel and refused to
appear—Transfer order modified on 26.04.1980 from Mhow
to Panipat-modified order not complied with-further directed
to join duty at Panipat vide letter dated 15.05.1980—Asked
to get in touch with Dr. Aggarwal for medical examination-
did neither-resorted to hunger strike-submitted fitness
certificate dated 21.05.1980—LIC (staff) Regulation 1960—
Regulation 39 lays down procedure to hold an enquiry-holding
of enquiry dispesed with by the Zonal Manager—Charge
sheet-cum-show cause Notice proposing penalty of removal
from service under Regulation 39 (1) (f) issued on
21.06.1980—Reply not filed-kept on seeking time-vide order
dated 11.08.1980 discussing the charges and documents in
support of punishment of removal from service under
Regulation 39 (1) (f) imposed—Appeal against the order-
dismissed by the Managing Director—Memorial preferred
before the Chairman followed by apology—Writ Petition before
Allahabad High Court filed against the order dated
10.08.1980—Dismissed—Special Leave Petition filed before
the Supreme Court—Liberty given to seek fresh reference of
the dispute to labour court—Process under Industrial Disputes
Act, 1947 invoked—Reference made to CGIT—CGIT passed
award dated 16.06.1998—Award of CGIT challenged through
the Writ Petition—Held—General attitude of petitioner was that
of defiance -decision to dispense with holding of an enquiry
not taken in a hurry-Concurred with CGIT—Petition
dismissed.
S.P. Arya v. Union of India & Ors. ........................... 808
(xvi)(xv)
CUSTOMS ACT, 1962—Notification No. 23 (RE-2010)/2009-
2014 dated 18.02.2010(ANN-P-I), Notification No. 25 (RE-
2010)/2009-2014 dated 24.03.2011 (ANN-P-II), Notification
No. 37 E (RE-2010)/2009-2014 dated 24.03.2011 (ANN-P-
III)-(impugned Notifications) Export of ‘Casein’ and ‘Casein
Products’-Petitioner manufacturer and exporter of casein and
casein products- eligible and therefore applied and obtained
permission for factory stuffing in terms of CBEC circular no.
60/2011-Cus dated 01.11.2001—Applied to jurisdictional
Central Excise Officers for examination—Goods examined
under four shipping bills on 16.02.2011, 16.02.2011,
16.02.2011 and 18.02.2011—On that very date were removed
from the factory and handed over to ICD, Tuglakabad—
Meanwhile—Impugned notifications were issued prohibiting
export of casein and casein products-AO disallowed export-
goods were presented for examination after the impugned
notifications were passed-CC(A) allowed the appeal-Goods
presented to jurisdictional Central Excise Officers is
presentation for Customs examination-Not hit by the
prohibition—Respondent challenged the order before
Tribunal—Appeal yet to be listed—No stay order—Present
writ petition filed for compliance of the order of CC(A)-
suffering demurrage-continued to be levied at escalating rate.
Held—Petitioner had completed all the formalities for
exportable goods-change of policy provision not applicable to
consignment already handed over to customs for
examination—Petitioner cannot be blamed for procedural
delay-in case the goods are exported, the Petitioner will suffer
irreparable loss as the goods cannot be re-used—Balance of
convenience lies in favour of the Petitioner—Respondents
directed to allow the Petitioner to export the goods.
M/s Bhole Baba Dairy Industries Ltd. v. Union of
India and Ors. ................................................................ 537
DELHI SIKH GURUDWARA ACT, 1971—Section 3(1), 24, 31,
32, 33, 36, 40 (2) (f)—Indian Penal Code, 1860—Section
21—Constitution of India, 1950—Article 226—Right to
Information Act, 2005—Section 2(h)—Writ filed for seeking
mandamus for reinstatement and for payment of wages,
etc.—Question of maintainability of writ petition suo moto
raised by Court—On maintainability, plea taken DSMGC is a
statutory body empowered to manage educational and other
institutions—Members of DSMGC are public servants within
meaning of Indian Penal Code—Terms and conditions of
service of employees of DSMGC have statutory force—Per
contra plea taken, petitioners ought to invoke remedy of
Industrial Disputes Act—Held—Jurisdiction over disputes
between DSGMC and its employees including past employees
is, first of District Judge and Gurudwara Act provides for a
remedy to this Court against orders of District Judge—Act
on basis of which writ remedy is invoked against DSGMC,
having itself provided a remedy for disputes as subject matter
of these writ petition, writ petitions would not be maintainable
on this ground alone—Court would ordinarily not exercise
writ jurisdiction when alternative, efficacious remedy is
available—Present petitions raise disputed questions of fact
which can be appropriately adjudicated in proceedings before
District Judge than in writ jurisdiction—Petitioners directed
to approach Departmental Appellate Authority/District Judge.
Satpal Singh v. Delhi Sikh Gurdwara Management
Committee & Anr. .......................................................... 462
ELECTRICITY ACT, 2003—Section 135—Petitioner filed
complaint against Respondents for committing offence under
Section 135 of Act on basis of raids conducted by inspection
team—All inspections carried out prior to notification of
Government of NCT empowering technical officers, Managers/
Executive Engineers and above rank officers as authorized
(xviii)(xvii)
officers—Trial Court discharged Respondents holding
inspection in premises not made by authorized officers; so all
consequential proceedings initiated under Section 135 of Act
illegal—Respondent urged any action taken on basis of invalid
raid is nullity—Held:- An evidence even if illegally collected is
admissible in evidence, though the reliability thereof has to be
tested at time of trial—Trial Court to rehear the matter on order
of charge on basis of evidence on record and other contentions
raised by parties.
North Delhi Power Ltd. v. Surender Kumar................ 584
GUARDIAN AND WARDS ACT, 1890—Section 7—Writ of
Habeas Corpus—Petitioner, the mother seeks issuance of Writ
of Habeas Corpus directing her husband Respondent No. 2
to produce their minor son before Hon’ble High Court—
Petitioner, Respondent No. 2 and the minor son are Indian
Citizens residing in Canada since 04.04.2009—Respondent No.
2 and minor son came to India-Did not return—Before the
petitioner could move Court, respondent filed a petition under
Guardian and Wards Act and Section 6 of Hindu Minority and
Guardianship Act, 1956 for appointment of himself as sole
guardian—Petitioner moved the Superior Court of Justice, in
Canada—Held the child was an Indian Citizen—When the
Canadian Court passed the orders, the Guardianship Court in
New Delhi was already in seisin of the custody matter—No
comity of Courts Principle to apply—When child was brought
to India no custody dispute was pending—Not in violation of
any Court’s order—Golden Rule to be followed—Welfare of
the child—Minor’s right to life and liberty guaranteed under
Article 21 of the Constitution of India—Question to decide
which parent’s care is best for the child—Petition not
allowed—Custody by Respondent No. 2 not unlawful or ill
Deepti Mandlaus v. State (Govt. of NCT of Delhi)
and Anr. .......................................................................... 453
INDIAN EVIDENCE ACT, 1873—Section 73, Code of Criminal
Procedure, 1973—Section 311A, Constitution of India,
1950—Article 20—Appellants preferred appeals to challenge
their conviction under Section 302, 201, 384 read with Section
34 of Act—They urged, one of circumstance i.e. delivery of
ransom note in the handwriting of the appellant Jaipal not
proved—Also police did not have power to take accused's
handwriting under Section 73 of Indian Evidence Act—
Moreover, Section 311 A of Cr.P.C. was incorporated in the
statute book only w.e.f. 23.06.2006 and was not retrospective
in its application—Held:- Obtaining the handwriting of an
accused during investigation is not hit by Article 20 (3) of
the Constitution of India as an accused cannot be said to be
a witness against himself, if he is asked to give his handwriting
for purpose of verification of any document purported to be
in his handwriting—Some forms of testimonial acts lie outside
the scope of Article 20(3)—Obtaining appellant Jaipal's
handwriting during investigation not illegal.
Jaipal v. State................................................................. 553
INDIAN PENAL CODE, 1860—Section 398—As per
prosecution, accused with 3-4 persons came to house of
complainant to commit dacoity—Accused armed with
countrymade pistol—Other associates also armed with
weapons—Accused with associates forcibly entered house of
complainant—Complainant raised alarm—His friend PW2
sitting inside came out—Appellant fired shot and tried to flee—
Appellant caught by complainant and PW2 with pistol while
others escaped—Police recovered one countrymade pistol and
five live cartridges from accused besides one empty cartridge
in the barrel—Co-accused arrested subsequently—Trial Court
convicted accused for offence u/s 398—Held, In statement
of PW3 complainant, nowhere alleged that appellant and co-
(xx)(xix)
accused attempted to commit robbery—PW2 only stated that
when accused along with others entered, they shouted ‘Loot
Lo Mar Do’—Accused came with intention to commit robbery
which did not fructify into an attempt and was at best
preparation—Basic ingredients of 398 not made out—Accused
acquitted—Appeal Allowed.
Swaran Singh v. State ................................................... 527
— Section 302, 201, 384, 34—Indian Evidence Act, 1873—
Section 73, Code of Criminal Procedure, 1973—Section 311A,
Constitution of India, 1950—Article 20—Appellants preferred
appeals to challenge their conviction under Section 302, 201,
384 read with Section 34 of Act—They urged, one of
circumstance i.e. delivery of ransom note in the handwriting
of the appellant Jaipal not proved—Also police did not have
power to take accused's handwriting under Section 73 of
Indian Evidence Act—Moreover, Section 311 A of Cr.P.C.
was incorporated in the statute book only w.e.f. 23.06.2006
and was not retrospective in its application—Held:- Obtaining
the handwriting of an accused during investigation is not hit
by Article 20 (3) of the Constitution of India as an accused
cannot be said to be a witness against himself, if he is asked
to give his handwriting for purpose of verification of any
document purported to be in his handwriting—Some forms
of testimonial acts lie outside the scope of Article 20(3)—
Obtaining appellant Jaipal's handwriting during investigation not
illegal.
Jaipal v. State................................................................. 553
— Section 120B, 420, 467, 468 and 471—Prevention of
Corruption Act, 1988—Section 13(1) (d) and 13(2)—
Constitution of India, 1950—Article 19(1) (a), 21, 105 (1) and
326—Petitioner, a Parliamentarian in Judicial Custody filed writ
petition for permission to attend Parliament in Judicial
Custody—Plea taken, Parliamentarian has freedom of speech
subject only to rules and standing orders regulating procedure
of Parliament none of which prevents petitioner from attending
Parliament and speaking while in custody—Constitutional right
of petitioner to participate in Parlimentary proceedings and right
to vote in Parliament as elected representative is essence and
expression of Parliamentary democracy—Parliamentary
democracy is basic feature of Constitution of India and there
is no reason for denying such participation to petitioner while
same is possible in judicial custody—Refusing participation in
Parliamentary proceedings to petitioner would deny him
opportunity to fulfill his constitutional objections to attend
proceedings of Parliament—Unless petitioner is so permitted,
Parliamentary Constituency which had elected him would go
unrepresented in Parliament—Public interest demands that
petitioner, be permitted to attend Parliament—Per contra, plea
taken offences with which petitioner is charged with are
extremely grave and serious causing huge wrongful pecuniary
benefits to certain private parties and consequent loss to public
exchequer—Some of other accused officials of the Organizing
Committee for Common Wealth Games of which petitioner
was chairman are still absconding—CBI apprehends that
petitioner may misuse liberty sought by way of present petition
to influence witnesses and tamper with evidence—Held—
Argument as raised by petitioner amounts to placing Members
of Parliament (M.P.) at a pedestal higher than their electorate—
Argument assumes work of a M.P. is more sacred and
important than work/vocation in which citizens who have
elected said Parliamentarian may be engaged in—Such
argument is archaic and creates two classes of citizens as in
a monarchy i.e. king and subject and is alien to Constitution—
Merely because petitioner is a Parliamentarian does not entitle
him to claim any exception from effect of being in detention—
It is not case of petitioner that vote of petitioner on any aspect
(xiii)(xxi)
(xiv)(xxiii)
is vital or that without such participation citizens of his
constituency would suffer—Petitioner, in past, as per his
convenience has been missing Sessions of Parliament—When
petitioner could afford to miss parliament to spend time on
National Games or Participate in Games at China, his desire/
keenness to attend parliament can only be understood as
attempt for fresh air outside prison walls—Petitioner is not
entitled to relief claimed—Petition dismissed with costs of Rs.
1,00,000/- payable to Prime Minister’s National Relief Fund.
Suresh Kalmadi (In Judicial Custody) v. Union of
India & Ors. .................................................................. 795
— Sections 498A, Section 302, read with Section 34—Appellant
convicted under Section 498 (A) & 302 (IPC)—Trial Court
in addition to relying on the restimony of witnesses also relied
on the dying declaration recorded by the Doctor on MLC
Exhibit PW16 though rejected the dying the declaration PW5/
A recorded by PW-13 SI Raghunath Singh on the ground that
it was neither recorded in the presence of the Doctor to vouch
about the fitness of deceased nor was attested by any person
who was present at the time of recording the statement and
the statement had thumb impression in which ridges were
visible despite deceased having suffered 98% burns—Present
appeal filed by Appellants—It was observed that after the
judgment of five Judges Bench of the Supreme Court in
Laxman vs. State of Maharashtra (2002) 6 SCC 710, fitness
certificate in every dying declaration has become immaterial
and what is required to be seen is whether the person hearing
or recording the dying declaration was satisfied that the person
making the dying declaration is mentally fit—PW13’s
deposition that he had obtained fitness certificate from the
Doctor was not shaken in cross-examination to show that
deceased was not conscious—Also, there is no universal rule
that dying declaration recorded by Police Officer is unreliable
or must necessarily be made to a Magistrate—Since SDM had
expressed inability to reach Hospital and patient was critical,
it was duty of PW13 to record statement—There is also no
requirement of Law that dying declaration must be recorded
in a specified format and it is irrelevant if statement is not
recorded in question answer form—The dying declaration
Exhibit PW5/A recorded by PW3 rejected wrongly—The
dying declaration coupled with other evidence sufficient to
prove guilt of Appellants.
Dharambir & Anr. v. State ........................................... 686
— Section 21—Constitution of India, 1950—Article 226—Right
to Information Act, 2005—Section 2(h)—Writ filed for
seeking mandamus for reinstatement and for payment of
wages, etc.—Question of maintainability of writ petition suo
moto raised by Court—On maintainability, plea taken DSMGC
is a statutory body empowered to manage educational and
other institutions—Members of DSMGC are public servants
within meaning of Indian Penal Code—Terms and conditions
of service of employees of DSMGC have statutory force—
Per contra plea taken, petitioners ought to invoke remedy of
Industrial Disputes Act—Held—Jurisdiction over disputes
between DSGMC and its employees including past employees
is, first of District Judge and Gurudwara Act provides for a
remedy to this Court against orders of District Judge—Act
on basis of which writ remedy is invoked against DSGMC,
having itself provided a remedy for disputes as subject matter
of these writ petition, writ petitions would not be maintainable
on this ground alone—Court would ordinarily not exercise
writ jurisdiction when alternative, efficacious remedy is
available—Present petitions raise disputed questions of fact
which can be appropriately adjudicated in proceedings before
District Judge than in writ jurisdiction—Petitioners directed
to approach Departmental Appellate Authority/District Judge.
(xxvi)(xxv)
Satpal Singh v. Delhi Sikh Gurdwara Management
Committee & Anr. .......................................................... 462
INDUSTRIAL DISPUTES ACT, 1947—Petitioner appointed in
LIC as office attendant in 1963—Posted in Meerut Division—
Became a trade unionist—Transferred to Mhow in Madhya
Pradesh in November 1978—Did not comply with the transfer
order—Letter dated 22.12.1978 directing the petitioner to join
his duties at Mhow-did not join duties-continued to address
leave applications to Divisional Office at Meerut—Again, vide
letter dated 05.02.1979 asked to join duty at Mhow-Did not
join-continued to defy despite another letter dated
21.08.1979—Pleaded illness-Panel of medical examiners at
Medical College, Meerut constituted-petitioner challenged the
constitution of panel and refused to appear—Transfer order
modified on 26.04.1980 from Mhow to Panipat-modified
order not complied with-further directed to join duty at Panipat
vide letter dated 15.05.1980—Asked to get in touch with Dr.
Aggarwal for medical examination-did neither-resorted to
hunger strike-submitted fitness certificate dated 21.05.1980—
LIC (staff) Regulation 1960—Regulation 39 lays down
procedure to hold an enquiry-holding of enquiry dispesed with
by the Zonal Manager—Charge sheet-cum-show cause Notice
proposing penalty of removal from service under Regulation
39 (1) (f) issued on 21.06.1980—Reply not filed-kept on
seeking time-vide order dated 11.08.1980 discussing the
charges and documents in support of punishment of removal
from service under Regulation 39 (1) (f) imposed—Appeal
against the order-dismissed by the Managing Director—
Memorial preferred before the Chairman followed by
apology—Writ Petition before Allahabad High Court filed
against the order dated 10.08.1980—Dismissed—Special
Leave Petition filed before the Supreme Court—Liberty given
to seek fresh reference of the dispute to labour court—Process
under Industrial Disputes Act, 1947 invoked—Reference made
to CGIT—CGIT passed award dated 16.06.1998—Award of
CGIT challenged through the Writ Petition—Held—General
attitude of petitioner was that of defiance -decision to dispense
with holding of an enquiry not taken in a hurry-Concurred
with CGIT—Petition dismissed.
S.P. Arya v. Union of India & Ors. ........................... 808
LETTERS PATENT ACT—Appellant C.S. Aggarwal, Director of
M/s Rockman Projects Limited (referred to as RPL) made a
representation for the purpose of securing investment to Mr.
Sameer Kohli, director of M/s Kohli Housing and Development
Pvt. Ltd—Intended to develop one SEZ on 250 acres land
situated at Delhi-Jaipur Highway owned by RPL—Petitioner
received in-principal approval from the Govt. of India for the
project—On the representation, respondent no. 3 agreed to
buy 74% shares worth Rs. 185 crores in the Special Purpose
Vehicle (SPL) formed for this purpose—MOU was signed—
Advance payment of Rs. 40 crores was made by respondent
no. 3 on the condition that either this advance will be refunded
back to him or the land of 250 acres would be transferred in
favour of him in case the SEZ notification is not received by
31st December 2008—Subsequently an amount of Rs. 3 crores
was given to the petitioner by respondent no. 3—No
notification could be received by RPL by 31.12.2008—Mr.
D.K. Jain, the other director of RPL issued a public notice
revoking all authority given to the petitioner to act on behalf
of RPL—After expiration of the dead line, respondent no.3
demanded his money back, but in Vain—Respondent made a
complaint, on the basis of which, FIR no. 266/09 was
registered against the appellant herein u/s 420/406/120-B
IPC—Appellant challenged the registration of FIR and sought
quashing of the same—Hon’ble Single Judge dismissed the
petition—Appellant preferred the Letter Patent Appeal under
clause 10 of the Letter Patent Act—Respondent took a primary
(xxviii)(xxvii)
objection to the maintainability of the Letter Patent Appeal on
the point that judgment was passed in exercise of criminal
jurisdiction and the Letter Patent appeal against the order is
clearly barred by Clause 10 and 18 of Letters Patent Act—
Held—Proceedings under Article 226 of the Constitution
would be treated as original civil proceedings only when it
concerns civil rights—A fortiori, if it concerns a criminal
matter, then such proceedings would be original criminal
proceedings—Letter Patent would lie when the Single Judge
decides the writ petition in proceedings concerning civil
rights—On the other hand, if these proceedings are concerned
with rights in criminal law domain, then it can be said that
the Single Judge was exercising his ‘criminal jurisdiction’
while dealing with such a petition filed under Article 226 of
the Constitution—In a petition under Article 226 of the
Constitution when the High Court is exercising extraordinary
jurisdiction, the nature of proceedings, whether civil or
criminal, would depend upon the nature of right violated and
the nature of relief sought in the said petition—Writ of this
nature filed under Article 226 of the Constitution—Seeking
quashing of such an FIR would therefore be ‘‘criminal
proceedings’’ and while dealing with such proceedings, the
High Court exercises its ‘‘criminal jurisdiction’’—The LPAs
are barred and not maintainable—Dismissed.
C.S. Agarwal v. State & Ors. ...................................... 701
MOTOR VEHICLES ACT, 1988—Section 166—Three
deceased, post retirement from Indian Navy, employed with
private company on different posts, travelling together in a
Maruti Wagon R when car collided with Tata Truck—
Tribunal awarded compensation in favour of claimants of
three deceased—Contention of appellants that amount awarded
under head of “Loss of Dependency” inadequate—Held, future
prospects had wrongly not been considered—Tribunal wrongly
did not take allowances into consideration but only annual
salary after deducting 10% as income tax—All three deceased
below the age of 50 years, were mechanical engineers,
specially qualified professional persons working in the field
of their specialized capacity in permanent posts with promotion
prospects; thus future prospects should have been taken into
account—Appellants entitled for “future prospects” which
would be double of the amount of salary after deduction of
tax—Award modified with regard to “Loss of Dependency”—
Appeal allowed.
Anita Devi & Others v. United India Assurance
Co. Ltd. & Ors. ............................................................. 673
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES
ACT, 1985—Sections 20 & 50—As per prosecution, PW10
along with PW6 and PW7 patrolling on platform at Old Delhi
Railway Station—Secret information received by PW10 that
one person was sitting near the staircase of flyover with Ganja
in iron box—Raiding party constituted and accused nabbed—
Notice u/s 50 NDPS Act given to accused—30 kg Ganja
recovered from iron box of accused out of which 1 kg. taken
as sample—Trial Court convicted accused under Section 20—
Held, notice under Section 50 NDPS not properly given as
Investigating Authority was supposed to give accused the
option of a search either before a Gazetted Officers or a
Magistrate which was not done in present case—FSL Form
never sent to FSL Malviya Nagar and not proved in Court—
Since FSL Form not sent with Samples, samples doubtful—
Sample Ganja taken of 1 kg whereas weight was found to be
910.7 gms.—No explanation as to how weight of Ganja
reduced which casts doubt on sample—IO interpolated
Malkhana Register—FSL form not sent with samples—After
sealing samples, seal not handed over to independent person
but kept with IO—Prosecution case doubtful—Accused
(xxx)(xxix)
acquitted—Appeal Allowed.
Bijay v. The State (G.N.C.T. of Delhi) ....................... 515
NEGOTIABLE INSTRUMENTS ACT, 1881—Section 138—
Complaint u/s 138 filed—Accused convicted by trial Court and
sentenced to undergo SI for one year and fine of Rs. 5,000/
-—Criminal Revision filed before Sessions Court—Substantive
Sentence of one year SI done away with and fine enhanced
to Rs. 16,40,000/- with direction that entire fine amount be
given to complainant as compensation and in default accused
to undergo SI for one year—Fine Amount directed to be given
directly to complainant in four instalments of Rs.4,10,000/-
each—Accused filed revision before High Court—High Court
granted stay subject to deposit of Rs.10,00,000/- with
Registrar General within four weeks—Criminal Misc. Petition
for staying operation of impugned order passed by ASJ
vacated—Application u/s 424 and another application u/s 421
Cr.P.C. for sentence for imprisonment in default to be carried
out and for issuance of warrants respectively moved before
M.M.—Vide impugned order M.M. directed court notice to
be issued—Contention of applicant that trial Court should have
issued Non Bailable Warrants against convict instead of Court
notice—No question of issuing notice to convict arises
because there is no law that requires that a notice should be
given before a warrant of levy of fine is issued against the
person sentenced to fine—Trial Court directed to ensure arrest
of convict in accordance with law—Appeal Allowed.
Ashok Chachra v. The State ......................................... 789
— Section 138—Respondent no.1 filed complaint under Section
138 of Act—Aggrieved by summoning order passed by Senior
Civil Judge, petitioner preferred petition for quashing of said
order—Petitioner urged, cheque not dishonoured for reason
of insufficient funds or amount due thereon exceeded amount
arranged to be paid from account—However, there was no
discharge of legal liability of petitioner towards complainant—
Thus, case for dishonour of cheque not made out—Per contra,
Respondents urged, petitioner issued two cheques out of
which one cheque dishonoured and a legal liability on part of
petitioner existed as he had purchased shares from Respondent
and his wife—Held:- Where a cheque is dishonoured for any
reason, it has to be co-related to the insufficiency of funds in
account—Legislative intent is to stop dishonoring of cheque
and adopt a no-nonsense situation and punish the unscrupulous
person who purport to discharge this liability by issuing
cheques, not intending to honour it on account of insufficiency
of funds in their accounts—Petitioner’s contention that he had
no liability to pay, is a question of fact and can be determined
only through Trial—Petition dismissed.
M. Arun Ahluwalia v. Arun Oberoi & Anr. ............... 605
PREVENTION OF CORRUPTION ACT, 1988—Section 13(1)
(d) and 13(2)—Constitution of India, 1950—Article 19(1) (a),
21, 105 (1) and 326—Petitioner, a Parliamentarian in Judicial
Custody filed writ petition for permission to attend Parliament
in Judicial Custody—Plea taken, Parliamentarian has freedom
of speech subject only to rules and standing orders regulating
procedure of Parliament none of which prevents petitioner
from attending Parliament and speaking while in custody—
Constitutional right of petitioner to participate in Parlimentary
proceedings and right to vote in Parliament as elected
representative is essence and expression of Parliamentary
democracy—Parliamentary democracy is basic feature of
Constitution of India and there is no reason for denying such
participation to petitioner while same is possible in judicial
custody—Refusing participation in Parliamentary proceedings
to petitioner would deny him opportunity to fulfill his
constitutional objections to attend proceedings of Parliament—
(xxxi) (xxxii)
Unless petitioner is so permitted, Parliamentary Constituency
which had elected him would go unrepresented in
Parliament—Public interest demands that petitioner, be
permitted to attend Parliament—Per contra, plea taken
offences with which petitioner is charged with are extremely
grave and serious causing huge wrongful pecuniary benefits
to certain private parties and consequent loss to public
exchequer—Some of other accused officials of the Organizing
Committee for Common Wealth Games of which petitioner
was chairman are still absconding—CBI apprehends that
petitioner may misuse liberty sought by way of present petition
to influence witnesses and tamper with evidence—Held—
Argument as raised by petitioner amounts to placing Members
of Parliament (M.P.) at a pedestal higher than their electorate—
Argument assumes work of a M.P. is more sacred and
important than work/vocation in which citizens who have
elected said Parliamentarian may be engaged in—Such
argument is archaic and creates two classes of citizens as in
a monarchy i.e. king and subject and is alien to Constitution—
Merely because petitioner is a Parliamentarian does not entitle
him to claim any exception from effect of being in detention—
It is not case of petitioner that vote of petitioner on any aspect
is vital or that without such participation citizens of his
constituency would suffer—Petitioner, in past, as per his
convenience has been missing Sessions of Parliament—When
petitioner could afford to miss parliament to spend time on
National Games or Participate in Games at China, his desire/
keenness to attend parliament can only be understood as
attempt for fresh air outside prison walls—Petitioner is not
entitled to relief claimed—Petition dismissed with costs of Rs.
1,00,000/- payable to Prime Minister’s National Relief Fund.
Suresh Kalmadi (In Judicial Custody) v. Union of
India & Ors. .................................................................. 795
— Sections 7 & 13—Appellant aggrieved by his conviction under
Section 7 & 13(1)(d) of Act, had preferred appeal and urged
no evidence against him with regard to demand or acceptance
of any bribe money from complainant—Thus, his conviction
not proper—On behalf of State argument raised, from
testimony of independent witness proved that appellant
demanded as well as accepted bribe money for doing favour
to complainant; therefore, conviction legal—Held:- Under
Section 13(1)(d), it is required to be proved that accused, as
a public servant, obtained for himself or any other person any
valuable thing or pecuniary advantage by corrupt or illegal
means or that the misused his position in obtaining for himself
or any other person any valuable thing or pecuniary
advantage—Statutory presumption under Section 20 of Act
is available for offence punishable under Section 7 or Section
11 or Clause (a) and Clause (b) of Section 13 (1) and not for
Clause (d) of Section 13 (1)—For offence under Section
13(1)(d), it will be required to be proved that some initiative
was taken by a person who receives and in that context
demand or request from him will be a pre-requisite—Appellant
rightly held guilty for offences.
R.K.P. Nishad v. C.B.I. ................................................ 635
PREVENTION OF FOOD ADULTERATION ACT, 1954—
Sections 7, 13, 16—Petitioner preferred appeal against
judgment, acquitting Respondent accused for offence
punishable under Section 7 of Act—Respondent was convicted
by learned Metroplitan Magistrate—On appeal by Respondent,
learned Additional Sessions Judge observed, sample obtained
by Food Inspector not homogeneous and consequently not
representative in character—Also, variation in reports of
Director, CFL and Public Analyst about content of adulteration
as well as in values, thus acquitted Respondent—Held:- Once
accused exercises his right under Section 13 (2) of Prevention
of Food Adulteration Act and voluntarily gets second sample
examined from Director, CFL, he does so at his own risk—
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WP(CRL)
DEEPTI MANDLAUS ....PETITIONER
VERSUS
STATE (GOVT. OF NCT OF DELHI) AND ANR. ....RESPONDENTS
(BADAR DURREZ AHMED & MANMOHAN SINGH, JJ.)
WP(CRL) NO. : 1338/2010 DATE OF DECISION: 05.04.2011
Constitution of India, 1950—Article 226, Guardian and
Wards Act, 1890—Section 7—Writ of Habeas Corpus—
Petitioner, the mother seeks issuance of Writ of Habeas
Corpus directing her husband Respondent No. 2 to
produce their minor son before Hon’ble High Court—
Petitioner, Respondent No. 2 and the minor son are
Indian Citizens residing in Canada since 04.04.2009—
Respondent No. 2 and minor son came to India-Did not
return—Before the petitioner could move Court,
respondent filed a petition under Guardian and Wards
Act and Section 6 of Hindu Minority and Guardianship
Act, 1956 for appointment of himself as sole guardian—
Petitioner moved the Superior Court of Justice, in
Canada—Held the child was an Indian Citizen—When
the Canadian Court passed the orders, the
Guardianship Court in New Delhi was already in seisin
of the custody matter—No comity of Courts Principle
to apply—When child was brought to India no custody
dispute was pending—Not in violation of any Court’s
order—Golden Rule to be followed—Welfare of the
child—Minor’s right to life and liberty guaranteed under
Article 21 of the Constitution of India—Question to
decide which parent’s care is best for the child—
Petition not allowed—Custody by Respondent No. 2
not unlawful or illegal.
Thus, none of the decisions sought to be relied upon by the
petitioner actually come to her aid. The common factors
running through those decisions are that the child was a
citizen of a foreign state and that a court of that state was
already in seisin of the custody case. Both these factors are
missing in the present case. Thus, the comity of courts
principle would not come to the aid of the petitioner. It must
also be remembered that each of this decisions have also
emphasized the golden rule in all custody matters that the
welfare of the child would be paramount. There has been
too much focus on the parents’ right to custody, when in
fact, the issue must always be addressed from the standpoint
of the child. An issue of custody of a minor is actually a facet
of the minor’s right to life guaranteed under article 21 of the
constitution of India. Irrespective of anything, the courts
have to look after the interests of the minor and not let
themselves to be sucked into the ugly battles of the minor’s
parents. It is not so much a question as to which parent
deserves to gain custody of the child as it is a question of
which parent’s care is best for the child. (Para 18)
[Ta Si]
APPEARANCES:
FOR THE PETITIONER : Mr. Sanjeev Narula with Mr. Ashish
Sharma and Ms. Sangeeta Sondhi.
FOR THE RESPONDENT : Mr. Pawan Sharma. Mr. J.P. Singh,
Sr. Advocate with Amiet Mr. Andley
and Mr. Arun Kumar Sharma.
CASES REFERRED TO:
1. Shilpa Aggarwal vs. Aviral Mittal & Anr. (2010) 1 SCC
591.
2. V. Ravi Chandran vs. Union of India & Ors. (2010) 1
SCC 174.
3. Aviral Mittal vs. State & Anr. 163(2009) DLT 627 (DB).
Deepti Mandlaus v. State (Govt. of NCT of Delhi) (Badar Durrez Ahmed, J.)
Indian Law Reports (Delhi) ILR (2011) VI Delhi455 456
4. Syed Saleemuddin vs. Dr Rukhsana and others. AIR 2001
SC 2172.
5. Mrs Elizabeth Dinshaw vs. Arvand M. Dinshaw & Anr.
AIR 1987 SC 3.
6. Smt Surinder Kaur Sandhu vs. Harbax Singh Sandhu &
Anr. (1984) 3 SCC 698.
RESULT: Petition dismissed.
BADAR DURREZ AHMED, J.
1. This petition on behalf of a mother (Deepti Mandlaus) seeks the
issuance of a writ of habeas corpus directing the respondents, in particular
her husband, Nitin Mandlaus (respondent no.2), to produce her minor
child, Armaan Mandlaus before this court and to further direct respondent
no.2 to hand over custody of the child to the petitioner.
2. Briefly stated, the petitioner, respondent no.2 and the child, who
are all Indian citizens, were residing in Canada since 04.04.2009 where
the petitioner and respondent no.2 were working as software professionals.
The respondent no.2 and the child came to India on a visit for the
duration 23.06.2010 to 10.08.2010. For this purpose, the petitioner, who
stayed back in Canada, had given her consent for travel of the minor son
with the father outside Canada i.e., to New Delhi, India. The Respondent
no.2 decided not to return to Canada. He got Armaan admitted to a
school in NOIDA, India and had the return tickets cancelled.
3. Before we address the legal issues which arise for consideration,
we need to set out the factual backdrop in somewhat greater detail. On
20.12.2000, the petitioner and respondent no.2 got married in New Delhi
according to Hindu rites and customs. They lived together in New Delhi.
In 2002, the respondent no.2 applied for Canadian immigration under the
‘‘skilled category — Professional Workers”. While this application for
immigration was pending, on 16.04.2004, the minor child Armaan was
born. In 2008, the Canadian authorities granted permanent immigration to
the respondent no.2 under the said category with the petitioner and their
minor child Armaan as his dependants. On 04.04.2009, the respondent
no.2 alongwith the petitioner and their minor son left India for Brampton,
Ontario, Canada. The petitioner took up a job in Toronto, Canada in June
2009. The respondent no.2 and Armaan travelled to India on 09.10.2009
and returned to Canada on 04.11.2009. The petitioner did not accompany
them on that visit and stayed back in Canada. However, the petitioner
travelled to India alone from 15.12.2009 to 26.12.2009.
4. Thereafter, certain disputes arose between the petitioner and the
respondent no.2, the details of which are not necessary for the purposes
of this petition. As mentioned above, the petitioner and the respondent
no.2 signed the Parental Travel Consent for Armaan’s trip to India between
23.06.2010 and 10.08.2010 with the respondent no.2 as the travelling
parent. The return ticket was for ‘to and fro’ flights on 23.06.2010 and
10.08.2010. Both, the respondent no.2 and Armaan, travelled to New
Delhi on 23.06.2010 but did not return to Canada on 10.08.2010, or
thereafter. In the meanwhile, on 28.07.2010, Armaan was admitted to
Class I in Lotus Valley School, NOIDA, UP, India, where he continues
to study. On 09.08.2010, respondent no.2 cancelled the return tickets for
his and his son’s journey to Canada which was to take place on 10.08.2010.
5. On the same day (09.08.2010), respondent no.2 filed a petition
( GP No. 62/2010) under section 7 of the Guardian and Wards Act, 1890
and section 6 of the Hindu Minority and Guardianship Act, 1956 before
guardianship court, Patiala House Courts, New Delhi for his appointment
as the sole guardian of Armaan. The said petition was listed before the
Court on 10.08.2010 when the said Court issued notice to the petitioner
herein for 19.11.2010.
6. In Canada, on 10.08.2010, the petitioner filed a petition (Court
File No. FS-10-69713-00) before the Superior Court of Justice, Family
Court Branch, Ontario, Canada, claiming, inter alia, the following reliefs:-
Divorce under the Divorce Act; support for child, custody of child and
restraining/non-harassment order under the Family Law Act and/or
Children’s Law Reform Act; and, exclusive possession of the matrimonial
home, freezing of assets and sale of family property. It was also prayed,
as a term of the custody order, that the respondent no.2 (Nitin Mandlaus)
shall bring back Armaan Mandlaus to the jurisdiction of the Superior
Court of Justice, Ontario. On 11.08.2010, the said court passed, inter
alia, a ‘‘without prejudice” ad-interim ex-parte order directing that Deepti
Mandlaus shall have sole custody of Armaan and as a term of the custody
order, the respondent no.2 (Nitin Mandlaus) shall bring back Armaan to
the jurisdiction of the said Court, forthwith. On 14.08.2010, the respondent
no.2 received a copy of the petition filed by the petitioner in Canada as
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well as a copy of the said order dated 11.08.2010.
7. On 06.09.2010, the petitioner filed the present writ petition and
the same was listed before this Court on 08.09.2010, when, notice was
issued on the petition and it was further directed that the notice issued
to respondent no.2 should indicate that he shall produce the child Armaan
before court on 16.09.2010, i.e., the next date of hearing. On 08.09.2010,
itself, the respondent no.2, perhaps oblivious of the present writ petition,
filed a civil suit [CS(OS) 1853/2010] in the Original Side of this Court
praying for an order of injunction restraining the petitioner herein from
proceeding with her petition before the Superior Court of Justice, Family
Court Branch, Ontario, Canada. On 13.09.2010, the said suit was registered.
On 15.09.2010, dasti (by hand) summons were taken. Since, the petitioner
did not appear, she was proceeded against ex-parte by virtue of an order
dated 22.09.2010 and she was also injuncted from prosecuting the petition
in Canada. Subsequently, the petitioner herein entered appearance in the
said suit and the ex-parte proceeding against her was set aside. She filed
the written statement and the suit is pending before the original side of
this Court.
8. Coming back to the present petition, on 16.09.2010 this Court,
inter alia, passed the following order:-
‘‘Renotify on 20.09.2010. In the meanwhile, without prejudice
to the rights and contentions of the parties, the petitioner as well
as the respondent No.2 are agreeable that they shall explore the
possibility of a settlement. For this purpose, they are directed to
appear before the Delhi High Court Mediation and Conciliation
Centre today itself at 4.30 p.m. We direct that Ms Sadhna
Ramachandran and Ms Maldeev Sidhu shall conduct the mediation
proceedings. The object being that the petitioner and the respondent
No.2 should, in the first instance, try to get back inasmuch as
that would be in the best interest of the minor child [Arman].’’
9. Initially, the mediation process showed promise and produced
some positive results as would be apparent from this Court’s order dated
21.09.2010. But, on 27.09.2010, the learned counsel for the petitioner
stated that there was no possibility of a settlement and that the matter be
heard on merits. The petitioner, who had come from Canada, went back
on 24.09.2010. Thereafter, the petition was heard on merits and is being
disposed of by this judgment.
10. The learned counsel for the petitioner submitted that this Court
must recognize the comity of courts principle and direct the respondent
no.2 to honour the order dated 11.08.2010 of the Canadian Court and
take the child Armaan to Canada and submit to the jurisdiction of the
Superior Court of Justice, Ontario, Canada. He placed reliance on a
number of decisions. They are:-
1. Aviral Mittal v. State & Anr: 163(2009) DLT 627
(DB);
2. Mrs Elizabeth Dinshaw v. Arvand M. Dinshaw & Anr:
AIR 1987 SC 3;
3. Smt Surinder Kaur Sandhu v. Harbax Singh Sandhu
& Anr: (1984) 3 SCC 698;
4. Shilpa Aggarwal v. Aviral Mittal & Anr: (2010) 1 SCC
591;
5. V. Ravi Chandran v. Union of India & Ors: (2010) 1
SCC 174.
11. It was also submitted that the respondent no.2 cannot be
permitted to have sole custody through subterfuge. The learned counsel
submitted that the petitioner is only asking that the respondent no.2
should return to Canada with Armaan and face the Divorce and custody
proceedings there. It was also contended that the court in Canada had
the closest connection with Armaan inasmuch as the respondent no.2
and the petitioner (and Armaan, with them) had migrated to Canada on
04.04.2009 and were living there as permanent residents. It was submitted
that the respondent no.2 betrayed the trust of the petitioner when he
cancelled the return tickets and did not return to Canada on 10.08.2010
alongwith Armaan, as promised. It was finally submitted that it would
also be in the interest of Armaan that he be taken back to Canada and
that it cannot be presumed that the petitioner, by herself, would not be
able to look after her son — Armaan.
12. Mr J.P. Sengh, senior advocate, appearing on behalf of the
respondent no.2 submitted that the most important aspect of this case is
that the minor child Armaan is an Indian citizen. In fact, all the three
persons, that is, the petitioner, the respondent no.2 and Armaan are
Deepti Mandlaus v. State (Govt. of NCT of Delhi) (Badar Durrez Ahmed, J.)
Indian Law Reports (Delhi) ILR (2011) VI Delhi459 460
Indian citizens and hold Indian Passports. None of them is a citizen of
Canada. It was also submitted that the petitioner and the respondent no.2
got married in India in 2000 and Armaan was born in India in 2004. They
only left for Canada on 04.04.2009. Armaan was then about 5 years old.
When respondent no.2 and Armaan travelled to India on 23.06.2010, they
had been in Canada for only 14 months. It was also submitted that both
the petitioner and respondent no.2 are IT professionals. While respondent
no.2 works from home, the petitioner has taken up a job. Mr Sengh,
further drew our attention to the petition filed by the petitioner in Canada
wherein she has indicated that support of ‘‘Day Care Services’’ would
be taken in caring for the child. It was submitted that in contrast,
respondent no.2 would be directly looking after Armaan. All of Armaan’s
grand-parents (even the petitioner’s parents) are in India. Other relatives
and friends are also in India. And, therefore, it would be in Armaan’s
interest and welfare that he is in India. In any event, it was submitted
on behalf of respondent no.2 that this petition be dismissed and the
matter be left to the Guardianship Court at Patiala House, New Delhi to
decide the issue of custody. On the strength of the Supreme Court
decision in the case of Syed Saleemuddin v. Dr Rukhsana and others:
AIR 2001 SC 2172, it was contended that unless the respondent no.2’s
custody of Armaan could be said to be unlawful or illegal and not in the
welfare of the child (Armaan), no interference of this Court by way of
exercise of its extraordinary writ jurisdiction was called for.
13. The learned counsel for the petitioner had placed great reliance
on this Court’s decision in Aviral Mittal (supra) which was affirmed by
the Supreme Court in appeal in Shilpa Aggarwal (supra). Undoubtedly,
the principle of comity of courts was recognized and the minor child was
directed to be taken back to UK for a decision as regards custody.
Although the learned counsel for the petitioner suggested that the facts
of that case and the present case are similar, we find that there is a
striking difference. In that case the minor child was born in UK and was
a citizen of UK. Here, Armaan was born in India and continues to be an
Indian citizen. Then, again, in that case there were no proceedings in
India, apart from the writ petition, but, in the present case, before the
Court in Canada passed the order dated 11.08.2010, the respondent no.2
had already invoked the jurisdiction of the Guardianship Court in New
Delhi, on 09.08.2010 and that Court had already taken up the case on
10.08.2010 when it issued notice of the petition to the petitioner herein.
As would be apparent from a reading of the decision in Aviral Mittal
(supra), particularly paragraphs 15, 16 and 20, the fact that the child in
that case was a British citizen weighed heavily with the court. The
Supreme Court, in Shilpa Aggarwal (supra), noted in paragraph 27
thereof, that it found itself placed between ‘‘two contrasting principles of
law’’ and that ‘‘of the two principles, the High Court has placed greater
reliance upon the theory of comity of nations and comity of judgments
of courts of two different countries in deciding the matter’’. The two
contrasting principles were the principle that the welfare of the child was
paramount and the comity of courts principle. The Supreme Court, while
accepting this court’s application of the comity principle in that case took
note of the fact that the UK Court was already in seisin of the matter and
that the ultimate decision as to custody ought to be left to the English
courts ‘‘having regard to the nationality of the child and the fact that
both parents had worked for gain in the UK and had also acquired
permanent resident status in the UK’’. Thus, it is clear that the fact that
the minor child was a British national and also the fact that the UK court
was already in seisin of the custody matter, weighed heavily with the
Supreme Court in upholding the application of the comity of courts
principle in the facts of that case. However, the facts here are entirely
different. Armaan was born in India and continues to be an Indian
citizen. Moreover, when the Canadian Court passed the order on
11.08.2010, the Guradianship Court in New Delhi was already seized of
the custody matter filed by the respondent no.2. Thus, no parallel can be
drawn from the Aviral Mittal (supra) and the Shilpa Aggarwal (supra)
decisions. They are clearly distinguishable.
14. In Elizabeth Dinshaw (supra), the Supreme Court, as noticed
in Aviral Mittal (supra), emphasized that in matters of custody of minor
children, the sole and predominant criterion is what would best serve the
interest and welfare of the minor. The Supreme Court also observed that
courts in all countries are bound to ensure that a parent does not gain
advantage by any wrong-doing like removing children from one country
to another. This would be hardly applicable in the present case as it
cannot be said that the respondent no.2 has gained any advantage over
the petitioner in deciding not to return to Canada with Armaan. The
petitioner, like the respondent no.2, is an Indian citizen. Her parents
reside in India as do her other relatives and friends. She is not alien to
the Indian circumstance. She has lived her entire life in India except the
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period post 04.04.2009.
15. Similarly, the Supreme Court decision in Smt Surinder Kaur
Sandhu (supra) is also distinguishable for the reason that the minor child
in that case was a Bristish citizen and the father was regarded by the
Supreme Court as ‘‘a man without a character’’ who had offered
solicitation to the commission of his wife’s murder! The Supreme Court,
in any event, invoking the well established principle that the welfare of
the minor is paramount, held the custody of the mother in his best
interest in the following words:-
‘‘..But, that provision cannot supersede the paramount
consideration as to what is conducive to the welfare of the
minor. As the matters are presented to us today, the boy, from
his own point of view, ought to be in the custody of the mother.’’
16. Another factor which weighed heavily with the Supreme Court
was the fact that the child in that case was a British Citizen and therefore
the Courts in England had the most intimate connection with the issue
of his custody. This facet is clearly absent in the present case as Armaan
is an Indian citizen. The character of the father, respondent no.2, is also
not in question as it was in that case.
17. The decision in V. Ravi Chandran (supra) is also a case
where the child was born in USA. The child was brought to India at a
time when a custody dispute was already pending in a court in USA and
the child was brought to India in violation of that court’s order. The
position here is entirely different.
18. Thus, none of the decisions sought to be relied upon by the
petitioner actually come to her aid. The common factors running through
those decisions are that the child was a citizen of a foreign state and that
a court of that state was already in seisin of the custody case. Both these
factors are missing in the present case. Thus, the comity of courts
principle would not come to the aid of the petitioner. It must also be
remembered that each of this decisions have also emphasized the golden
rule in all custody matters that the welfare of the child would be
paramount. There has been too much focus on the parents’ right to
custody, when in fact, the issue must always be addressed from the
standpoint of the child. An issue of custody of a minor is actually a facet
of the minor’s right to life guaranteed under article 21 of the constitution
of India. Irrespective of anything, the courts have to look after the
interests of the minor and not let themselves to be sucked into the ugly
battles of the minor’s parents. It is not so much a question as to which
parent deserves to gain custody of the child as it is a question of which
parent’s care is best for the child.
19. In view of the foregoing discussion we are not inclined to allow
the reliefs prayed for in this petition as we do not find the custody of
respondent no.2 to be unlawful or illegal. Whether it is in the best interest
and welfare of the minor will have to be decided by the guardianship
court in GP No.62/2010 pending in the Patiala House Courts, New Delhi.
It is for this reason that we have not expressed any opinion on which
of the parents of Armaan is best suited to look after his welfare. With
these observations, the petition is dismissed. In the circumstances, the
parties are left to bear their respective costs.
ILR (2011) VI DELHI 462
W.P.(C)
SATPAL SINGH ....PETITIONER
VERSUS
DELHI SIKH GURDWARA ....RESPONDENTS
MANAGEMENT COMMITTEE & ANR.
(RAJIV SAHAI ENDLAW, J.)
W.P.(C) NO. : 236/2010, DATE OF DECISION: 04.07.2011
5365/2010 AND 5229/2010
Delhi Sikh Gurudwara Act, 1971—Section 3(1), 24, 31,
32, 33, 36, 40 (2) (f)—Indian Penal Code, 1860—Section
21—Constitution of India, 1950—Article 226—Right to
Information Act, 2005—Section 2(h)—Writ filed for
Deepti Mandlaus v. State (Govt. of NCT of Delhi) (Badar Durrez Ahmed, J.)
Indian Law Reports (Delhi) ILR (2011) VI Delhi463 464
seeking mandamus for reinstatement and for payment
of wages, etc.—Question of maintainability of writ
petition suo moto raised by Court—On maintainability,
plea taken DSMGC is a statutory body empowered to
manage educational and other institutions—Members
of DSMGC are public servants within meaning of Indian
Penal Code—Terms and conditions of service of
employees of DSMGC have statutory force—Per contra
plea taken, petitioners ought to invoke remedy of
Industrial Disputes Act—Held—Jurisdiction over
disputes between DSGMC and its employees including
past employees is, first of District Judge and
Gurudwara Act provides for a remedy to this Court
against orders of District Judge—Act on basis of which
writ remedy is invoked against DSGMC, having itself
provided a remedy for disputes as subject matter of
these writ petition, writ petitions would not be
maintainable on this ground alone—Court would
ordinarily not exercise writ jurisdiction when
alternative, efficacious remedy is available—Present
petitions raise disputed questions of fact which can
be appropriately adjudicated in proceedings before
District Judge than in writ jurisdiction—Petitioners
directed to approach Departmental Appellate Authority/
District Judge.
Important Issue Involved: (A) Where the Act, on the
basis of which writ remedy is invoked itself provides a
remedy for the disputes as to subject matter of writ petitions,
the writ petitions would not be maintainable.
(B) Court would ordinarily not exercise jurisdiction under
Article 226 when alternative, efficacious remedy is available.
[Ar Bh]
APPEARANCES:
FOR THE PETITIONER : Mr. Raj Kumar Sherawat, Advocate.
FOR THE RESPONDENTS : Ms. Manpreet Kaur Bhasin, Advocate
for DSGMC.
CASES REFERRED TO:
1. Sh. Gurdeep Singh vs. President, Delhi Sikh Gurdwara
Management Committee MANU/DE/2013/2011.
2. Avtar Singh Hit vs. Delhi Sikh Gurdwara Management
Committee (2006) 8 SCC 487.
3. Zee Telefilms Ltd. vs. Union of India (2005) 4 SCC 649.
4. K. Krishnamacharyulu vs. Sri Venkateswara Hindu College
of Engineering 1997 SCC (L&S) 841.
5. All India Garment Exporters Common Cause Guild vs.
Union of India W.P.(C) No.5093/1998.
6. Gurdeep Singh Dua vs. Delhi Sikh Gurdwara Prabandhak
Committee 59 (1995) DLT 115.
7. Andi Mukta Sadguru Shree Muktajee Vandas Swami
Suvarna Jayanti Mahotsav Smarak Trust vs. V.R. Rudani
(1989) 2 SCC 691.
RESULT: Dismissed as not maintainable.
RAJIV SAHAI ENDLAW, J.
1. The very maintainability of the writ petitions is for adjudication.
2. The petitioner in W.P.(C) No.236/2010 claims to have been
employed as Office Superintendent with the respondent No.2 Sri Guru
Tegh Bahadur Industrial Training Centre; he claims that he was issued
a letter dated 13th August, 2009 relieving him from the respondent No.2
Centre and directing him to report to the General Manager of the
respondent No.1 Delhi Sikh Gurdwara Management Committee (DSGMC);
that though he reported to the General Manager of the respondent No.1
but was neither given any duty nor has been paid any wages thereafter.
The writ petition has been filed impugning the order dated 13th August,
2009 and seeking mandamus for reinstatement and for ˇpayment of
wages etc. Notice of the petition was issued and the pleadings got
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completed. The respondent No.2 Centre in its counter affidavit has stated
that since the respondent No.2 Centre was being closed down, the process
of transferring its employees to various Institutes / Centres run by the
respondent No.1 DSGMC according to their respective qualifications and
available vacancies was commenced; that the petitioner herein is surplus
and could not be adjusted anywhere inspite of attempt; that the petitioner
has also been absenting himself since 6th July, 2009 without any intimation
whatsoever and did not even report for duty as directed and is habituated
to unauthorized absence and is also guilty of serious misconduct. Rejoinder
has been filed by the petitioner to the said counter affidavit. No counter
affidavit has been filed by the respondent No.1 DSGMC. Though the
parties were referred to the Mediation Cell of this Court but without any
success.
3. The petitioner in W.P.(C) No.5365/2010 claims to have been
employed with the respondent No.1 Sri Guru Tegh Bahadur Industrial
Training Centre as a “Sewadarini” and her grievance also is that though
she ˇwas vide letter dated 13th August, 2009 relieved from the respondent
No.1 Centre and asked to report to the respondent No.2 DSGMC but
inspite of reporting to respondent No.2 DSGMC, has not been given any
duty. She seeks mandamus to the respondents to give her posting and
to pay her arrears of salary etc. Notice of the writ petition was issued.
No counter affidavit has been filed by the respondents till the question
of maintainability of the writ petition was suo moto raised by the Court.
4. The petitioner in W.P.(C) No.5992/2010 claims to have been
employed as a “Granthi” with the respondent No.1 DSGMC and claims
that on 25th November, 2009 he was suspended for alleged misbehaviour
with saints but neither any inquiry was conducted against him nor any
subsistence allowance being paid to him. He has filed this writ petition
impugning the order of his suspension and also impugning the order
dated 12th July, 2010 ordering inquiry into the charges against him. He
also seeks mandamus for reinstatement. Notice of the petition was issued.
The respondents have filed a counter affidavit pleading that the petitioner
is a ˇhabitual offender and has a chequered history and justifying the
order of suspension and inquiry into the charges against the petitioner.
5. The counsels for the petitioners were asked to address on the
maintainability of the writ petitions and have addressed their arguments.
They have contended that the DSGMC, of which each of the petitioners
is an employee, is a statutory body having been constituted vide Section
3(1) of the Delhi Sikh Gurdwaras Act, 1971 (Gurdwaras Act). Attention
is invited to Section 24 of the said Act whereunder the control, direction
and general superintendence over all the Gurdwaras and Gurdwara property
in Delhi has been vested in the DSGMC and DSGMC has also been
empowered to manage educational and other institutions. Attention is also
invited to Section 36 of the Act deeming inter alia the members of
DSGMC, the Executive Board or any other Sub-Committee and every
other officer and employee of the DSGMC to be public servants within
the meaning of Section 21 of the Indian Penal Code. Attention is also
invited to Section 40(2)(f) of the Act whereunder the terms and conditions
of service of employees of DSGMC are stated to have statutory force.
The ˇcounsels for the petitioners have also referred to several writ
petitions entertained by this Court against DSGMC. However, they agree
that the question of maintainability was neither raised nor adjudicated in
any of the said petitions. The counsels for the petitioners however referred
to the judgment dated 22nd July, 2010 of this Court in WP(C) No. 720/
2010 titled DSGMC Vs. Mohinder Singh Matharu holding that DSGMC
is a Body made by law and is a public authority within the meaning of
Section 2(h) of the RTI Act. Reference is also made to judgment dated
18th January, 2011 of this Court in W.P.(C) No.5093/1998 titled All
India Garment Exporters Common Cause Guild Vs. Union of India
holding that Apparels Export Promotion Council exercising public functions
is amenable to the jurisdiction of the High Court under Article 226 of the
Constitution of India. Attention is yet further invited to:
(a) K. Krishnamacharyulu Vs. Sri Venkateswara Hindu
College of Engineering 1997 SCC (L&S) 841 laying
down that when there is an interest created by the
Government in an institution to impart education, the
teachers who impart the education get ˇan element of
public interest in the performance of their duties and are
entitled to invoke the writ jurisdiction.
(b) Andi Mukta Sadguru Shree Muktajee Vandas Swami
Suvarna Jayanti Mahotsav Smarak Trust Vs. V.R.
Rudani (1989) 2 SCC 691 laying down that to be
enforceable by mandamus, a public duty does not
necessarily have to be one imposed by statute and it is
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Indian Law Reports (Delhi) ILR (2011) VI Delhi467 468
sufficient for the duty to have been imposed by charter,
common law, custom or even contract. It was further
held that the judicial review over the fast expanding maze
of bodies affecting the rights of the people should not be
put into water-tight compartments and technicalities should
not come in the way of granting relief under Article 226
of the Constitution.
(c) Judgment dated 4th October, 2004 of the Division Bench
of this Court in Rahul Mehra Vs. Union of India holding
Board of Control for Cricket in India (BCCI) to be amenable
to writ jurisdiction.
(d) Zee Telefilms Ltd. Vs. Union of India (2005) 4 SCC
649 holding that Bodies which are creature of statute are
amenable to writ jurisdiction.
6. The counsel for the respondent DSGMC on the contrary
contended that the petitioners ought to invoke the remedy of the Industrial
Disputes Act and relies upon orders in two writ petitions preferred against
DSGMC, withdrawing the writ petitions to pursue the remedy under the
Industrial Disputes Act, 1947.
7. The counsels for the petitioners rejoined by contending that it is
not the case of the petitioners that they are workmen.
8. The counsel for the respondent DSGMC has also referred to the
Employees Service Regulations, 1992 of DSGMC enacted in exercise of
powers conferred under Section 40(2)(f) of the Gurdwaras Act and has
drawn attention to the provisions of appeal, revision and review therein.
A copy of the resolution dated 9th February, 2010 of DSGMC constituting
Justice (Retd.) T.S. Doabia as the Appellate Authority has also been
handed over.
9. Though as aforesaid, the question of maintainability of writ
petitions against DSGMC was raised but on studying the Gurdwaras Act,
I find that Part V thereof deals with “Settlement of Election and Other
Disputes” and Sections 32 & 33 under the said Part are as under:
“32. The Court of the District Judge in Delhi shall also
have jurisdiction in respect of the following matters, namely:-
(c) Petitions regarding complaints, irregularities, breach of
trust, mismanagement in any Gurdwara, educational or other
institutions against any member, office-bearer or officer or other
employee of the Committee.
(d) Petitions arising out of any type of disputes between
the Committee and its employees including past employees.
(e) Applications regarding failure of publication of, or non-
implementation or non-clearance of the objections raised in, any
annual report of the auditors of the Committee.
33. (1) Any person aggrieved by an order passed by the
District Judge may, within sixty days of the order, prefer an
appeal to the High Court at Delhi and the orders of the
High Court on such appeal shall be final and conclusive.
(2) The provisions of Section 5 and 12 of the Limitation Act,
1963, shall, so far as may be, apply to appeals under this Section.”
10. It would thus be seen that the jurisdiction over disputes between
DSGMC and its employees including past employees, as the disputes
subject matter of the present petitions are, is first of the District Judge,
Delhi and the Act also provides for a remedy to this Court against the
orders of the District Judge.
11. The Act, on the basis of which writ remedy is invoked against
the respondent DSGMC, having itself provided a remedy for the disputes
as subject matter of these writ petitions, in my view, the writ petitions
would not be maintainable on this ground alone. The remedy of the
petitioners is before the District Judge. The Act having provided a complete
machinery for adjudication of the disputes as raised by way of present
writ petitions, the writ petitions would not be maintainable. It is the
settled principle of law that this Court would ordinarily not exercise
jurisdiction under Article 226 when alternative, efficacious remedy is
available. The present petitions in any case raise disputed questions of
fact and which can be appropriately adjudicated in proceedings before
the District Judge rather than in the present jurisdiction. I have already
in ˇSh. Gurdeep Singh Vs. President, Delhi Sikh Gurdwara
Management Committee MANU/DE/2013/2011 taken a view that owing
to the said Section 32 of the Act, the writ remedy is barred.
Satpal Singh v. Delhi Sikh Gurdwara Manag. Committee (Rajiv Sahai Endlaw, J.)
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12. Though I have not found any case law qua Sections 32 & 33
(supra) of the Gurdwaras Act but I find that the Division Bench of this
Court in Gurdeep Singh Dua Vs. Delhi Sikh Gurdwara Prabandhak
Committee 59 (1995) DLT 115 in relation to Section 31 of the Act
providing for the jurisdiction of the District Judge qua election disputes,
held that ordinarily the writ remedy would not be available in the face of
the alternative remedy having been provided in the Statute itself. The
Supreme Court in Avtar Singh Hit Vs. Delhi Sikh Gurdwara
Management Committee (2006) 8 SCC 487 in relation to Section 31
has also held that the appropriate remedy is to prefer an election petition
and unless exceptional or extraordinary circumstances are disclosed
justifying recourse to extraordinary remedy under Article 226, the same
would not be maintainable.
13. I do not find any reason to take a contrary view qua Section
32.
14. I also find that the Employees Services Regulations (supra)
of DSGMC provide for appeal against all penalties imposed. Thus the
remedy of the petitioners is first by preferring the departmental appeal
provided for under the Employees Service Regulations and if still remain
aggrieved, to approach the District Judge under Section 32 (supra) of the
Act and not by way of these writ petitions.
15. The writ petitions are accordingly dismissed as not maintainable.
However, having not found any earlier judgment on the aforesaid aspect,
it is directed that subject to the petitioners approaching the Departmental
Appellate Authority within 30 days of today or if do not deem Departmental
Appellate Authority to be appropriate, the District Judge within 45 days
of today, the Departmental Appellate Authority and / or the District
Judge, as the case may be, shall entertain the appeal / petition
notwithstanding the same being barred by time / delay.
No order as to costs.
ILR (2011) VI DELHI 470
CO. APPLS.
M/S. SPICE COMMUNICATIONS ....PETITIONERS
LIMITED & ANR.
(MANMOHAN, J.)
CO. APPLS. NO. : 578–579/2011 DATE OF DECISION: 04.07.2011
& 611/2011 IN CO. PET.
NO. : 403/2009
Companies Act, 1956—Section 391 to 394—Jurisdiction
to decide the issue of arrangement of the companies—
Department of Telecommunications (DoT) filed
applications for recall of order dated 05.02.2010
allowing amalgamation of Spice Communication Limited
(Spice) with Idea Cellular Limited (Idea)—Contending
that material documents—DoT’s letter rejecting the
amalgamation and License Agreements and Merger
Guidelines 2008 (guidelines) Suppressed—Wherein it
was clearly mentioned that the prior permission of
DoT was mandatory for filing a petition for merger
before the Court-Unified Access Services License
Agreements (licenses)—Clause 6.1 and 6.2 prohibit
transfer of licences without prior permission of DoT
whereas clause 6.3 is restricted to assignment of
license agreement pursuant to approval of merger
scheme by this court under section 391-394 of the
Act—Order approving scheme has caused prejudice
to DoT Delay in filing the explanation does not
disentitle DoT from claiming reliefs sought—Petitioner-
Companies contended that DoT has no locus standi-
Under clause 6.3 of license—DoT has no say in the
merger of companies—Guidelines are law and cannot
be suppressed—However admitted correspondences
with DoT-understanding was that DoT had no
objections—DoT on the other hand had suppressed
the letters written by the petitioner Companies—no
Satpal Singh v. Delhi Sikh Gurdwara Manag. Committee (Rajiv Sahai Endlaw, J.)
Indian Law Reports (Delhi) ILR (2011) VI Delhi471 472M/s. Spice Communications Limited & Anr. (Manmohan, J.)
decide the issue of arrangement of companies. In fact, it has
been repeatedly held by various courts that sanction under
Sections 391 to 394 of the Act is a ‘single window clearance’
for the purposes of the Act and there is no need for filing
applications under the Act for instance for change of name
of company or alteration of memorandum/articles of
association except for reduction of capital in certain
circumstances which requires a special procedure. This is
because the procedure under Sections 391 to 394 is so
elaborate that if separate independent applications under
the Act are insisted upon, it would result in unnecessary
duplication of applications and would be cumbersome. The
law on this aspect has been succinctly stated by the Bombay
High Court in Vasant Investment Corporation Ltd. v.
Official Liquidator, Colaba Land and Mill Co. Ltd. (1981)
51 Comp. Cas. 20 which following In re: Maneckchowk
and Ahmedabad Manufacturing Co. Ltd., (1970) 40
Comp. Cas. 819 (Guj.) held as under:
‘Basically, the court is given wide powers under section
391 of the Companies Act to frame a scheme for the
revival of the company. Section 391 of the Companies
Act is a complete code under which the court can
sanction a scheme containing all the alterations
required in the structure of the company for the
purpose of carrying out the scheme, except reduction
of share capital which requires a special
procedure……..The whole purpose of section 391 is
to reconstitute the company without the company
being required to make a number of applications
under the Companies Act for various alterations which
may be required in its memorandum and articles of
association for functioning as a reconstituted company
under the scheme…..” (Para 47)
The scope and ambit of Clauses 6.1 and 6.2 are totally
distinct and separate from Clause 6.3. Prior permission in
Clauses 6.1 and 6.2 gets attracted as and when transfer of
licence is to occur like in the present case of merger of two
violation of guidelines—Clause 6.3 of licenses
stipulates that approval of DoT is to be obtained only
on sanction of scheme by the High Court—Sanction
for merger of companies cannot be conditional upon
any statutory or regulatory permission. Held—High
Court alone has exclusive jurisdiction to decide the
issue of arrangement of companies merger of
companies does not result in merger of licenses but
all merger/amalgamation of companies necessarily
results in transfer of licenses for which prior
permission is required under clause 6.1 of licenses—
Prior permission under clause 6.1—Attracted in the
present case—Petitioner—Companies had suppressed
material documents to obtain unfair advantage—
Sanctioned scheme is binding on all shareholders,
creditors—DoT is a necessary party being a licensor
and regulator—Grave prejudice caused to DoT—
However delay of 13 months in filing the application
for recall of order—Not explained—Situation on
ground—Spice lost its entity—Employees have become
employees of idea—Delisted from stock exchange-not
possible to recall the order in entirety—To bring the
scheme in conformity with the guidelines—The order
was modified—Six overlapping licenses of Spice would
not stand transferred to Idea till DoT grants
permission—Overlapping licenses of Spice shall stand
transferred/vested with DoT—Spectrum allocated would
revert back to DoT—In case DoT refuses or grants
conditional approval of transfer licenses—Idea can
challenge it before TDSAT-customers to be provided
uninterrupted services in overlapping license area-
Ministry of Corporate Affairs directed to conduct study
and suggest remedial measures to ensure no party
can obtain sanction of a scheme of arrangement
without placing on record relevant materials.
On an analysis of Sections 391 to 394 of the Act, this Court
is of the view that it alone has the exclusive jurisdiction to
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independent telecommunication companies. (Para 49)
This Court is also of the view that Clauses 6.1 and 6.2 relate
to transfer of licences, whereas Clause 6.3 provides for
transfer of assignment of the licence agreement. Clause 6.3
is attracted for instance when formal transfer or arrangement
of licence agreement is sought – which will naturally happen
after scheme of merger/amalgamation is sanctioned by this
Court. The requirement of prior permission of DOT for
transfer of licences (under Clause 6.1) is of utmost
importance when licences of overlapping areas are to be
transferred like in present case and that too, when some of
the licences are not three years old. In fact, Idea’s own
understanding was that merger of companies would mean
transfer of licences as would be apparent from Idea’s own
letters dated 25th June, 2008, 15th July, 2008 and also the
application filed in the Demerger Scheme. (Para 50)
Consequently, this Court is of the opinion that permission of
DOT is required prior to scheme of amalgamation coming
into force since the effect of the said scheme is that licences
of Transferor/Spice will stand transferred to Transferee/Idea.
This Court is of the view that merger of companies does not
result in merger of licences but all merger/amalgamation of
companies necessarily results in transfer of licences—for
which prior permission is required under Clause 6.1 of the
Licence. Accordingly, the submission of petitioner-companies
that the issue of merger of companies is separate, distinct
and extraneous to the terms of the licence and merger
guidelines, is untenable in law. (Para 51)
In the opinion of this Court, suppression of a material fact or
a material document by a litigant disqualifies such a litigant
from obtaining any relief. This rule has evolved out of the
role of the Court to deter a litigant from abusing the process
of Court by deceiving it. (Para 63)
But the suppressed fact/document cannot be an irrelevant
one. It must be a material one in the sense that had it not
been suppressed, it would have had effect on the merits of
the case. It must be a matter which is material for the
consideration of the Court, whatsoever decision the Court
may ultimately take. (Para 64)
Keeping in view the aforesaid mandate of law as well as the
facts of the present case, it is apparent that non-placing of
DOT’s letters dated 7th January, 2010 and 18th January,
2010 was not an innocent act. Non-filing of the aforesaid
letters was a part of design to misdirect and mislead this
Court as would be apparent from non-filing of Licences as
well as Merger Guidelines, 2008 and correspondence
exchanged between the parties. It is pertinent to mention
that the primary business of both the petitioner-companies
pertain to telecommunication licences which were not
produced before this Court. In fact, both the petitioner-
companies did not bring to the notice of this Court that
unlike any other case in the past decided by this Court, the
present Scheme of Arrangement would result in transfer of
some overlapping licences within the prohibited period of
three years. Since this Court and the Regional Director were
not aware of the prior permission and temporary prohibition
contained in the licence conditions and merger guidelines
respectively, the petitioner-companies reliance upon this
Court’s observation with regard to post merger sanction/
approval of DOT is irrelevant. Consequently, withholding of
relevant and material documents like licences, merger
guidelines and DOT’s letters dated 7th January, 2010 and
18th January, 2010 was deliberate, intentional and with a
view to obtain an unfair advantage. (Para 67)
In the opinion of this Court it is also not necessary that there
should be direct proof of fraud, the same can be inferred
from various circumstances which are brought on record.
Even if individual facts are not able to prove a fraud, it would
be sufficient if all the circumstances taken together indicate
a fraud. (Para 68)
Indian Law Reports (Delhi) ILR (2011) VI Delhi475 476M/s. Spice Communications Limited & Anr. (Manmohan, J.)
The ‘design’ of the petitioner-companies is also apparent
from their subsequent conduct, i.e., after this Court had
sanctioned the merger scheme. It is pertinent to mention
that before the amalgamation scheme was sanctioned by
this Court, Idea in its own affidavit had confirmed that
approval of DOT would be taken after approval of scheme
of amalgamation by this Court, but post merger the stand of
Idea has been that DOT has no further say in the matter
and only a formal approval of transfer of licences is required
which DOT is obliged under law to give. To illustrate, Idea
vide its letter dated 31st May, 2010 addressed to DOT
stated ‘in this regard you may note that our Punjab Service
area, as stated in our application for 2.1 GHz auction,
license held by Spice Communications Limited stands
amalgamated into Idea Cellular Limited through a Court
process as per provisions of the license agreements, which
process of amalgamation has been completed. The DoT
has already been informed about the same. Hence the
Letter of Intent for Punjab too may be has to be in favour
of IDEA Cellular Limited.’ Further, Idea’s Managing Director
vide letter dated 21st December, 2010 addressed to DOT
stated ‘therefore we were surprised when we received a
letter from the DoT dated 7th January, 2010 saying the
merger of the companies cannot be permitted (18 months
after our merger announcement and 16 months after our
meeting with DoT – this letter came soon after we confirmed
the approval of Hon’ble High Court). The same was evidently
wrong and uncalled for, considering the advise for approval
given earlier and given that merger of companies is not in
the DoT‘s domain, and was appropriately responded by us.
In fact on the contrary, upon us informing DoT about
completion of the Court process of amalgamation, the DoT
ought to have issued formal orders forthwith.’ Also, Idea in
its petition bearing No. 143/2011 filed before TDSAT stated
‘once the merger is approved it mandates the DoT to give
its approval as it does not leave the DoT with any discretion
to refuse the same.’ Idea in its application for withdrawal of
demerger application being Co. Appl.(M) 98/2009 stated ‘in
light of the aforesaid sanctioning of the Scheme of
Amalgamation, the application filed by Spice before this
Hon‘ble Court for the proposed demerger of its overlapping
UASLs would not be maintainable as Spice has already
merged into the Applicant Company and the overlapping
UASLs of Spice now vest in the Applicant Company by virtue
of the Scheme of Amalgamation.’ (Para 69)
In any event, even if this Court were not to accept the plea
of dishonest intent on the part of petitioner-companies, this
Court cannot lose sight of the fact that as the sanctioned
scheme is binding on all shareholders, creditors of petitioner-
companies, the Court is obliged to examine the Scheme in
its proper perspective together with its various manifestations
and ramifications with a view to finding out whether the
scheme is fair, just and reasonable to the members
concerned and is not contrary to any law or public policy.
Though the expression ‘public policy’ is not defined in the
Act, it connotes some matter which concerns the public
good and public interest. Thus, the question that arises is
whether the petitioners had disclosed sufficient information
to this Court so as to enable it to arrive at an informed
decision, that means, whether the information supplied was
sufficient and whether the real issue was flagged before
Court and whether all relevant documents were on record
for the Court to arrive at a just decision. (See Sesa
Industries Limited Vs. Krishna H. Bajaj & Ors., (2011) 3
SCC 218). (Para 70)
The petitioner-companies’ challenge to the locus of DOT to
file the present applications is also untenable in law. DOT is
an interested/necessary party as it is both a Licensor and a
Regulator. It is pertinent to mention that at the second
motion stage in any scheme of arrangement, the Company
Court invites objections from the public at large, if any, to
the proposed scheme and the petitioner-companies’ are
obliged in law to disclose to this Court objection if any
received by them to the Scheme of Arrangement.
(Para 74)
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However, the present applications for recall of sanction
order dated 5th February, 2010 have been filed after a
delay of thirteen months. There is no plausible explanation
for the delay except for the submission that Government’s
decisions are ‘proverbially slow’. (Para 77)
In fact, today, the ‘situation at the ground’ is that Spice has
lost its entity after having been dissolved without following
the process of winding up and all its employees have
become employees of Idea. The assets and liabilities of
Spice have got vested in Idea. The shares of erstwhile Spice
have also been delisted from the relevant stock exchange.
Further, some of the shareholders of erstwhile Spice, who
had received the shares of Idea, would have also transferred
the same to third parties. Consequently, today it is not
possible for this Court to ‘unscramble the eggs’ by recalling
in its entirety the order dated 5th February, 2010 sanctioning
the Scheme of Amalgamation. (Para 78)
Consequently, to bring the sanctioned scheme, in the present
case, in conformity with the Licence and Merger Guidelines,
2008 as well as in view of the fact that simultaneous
demerger scheme has been withdrawn, it is directed that
notwithstanding anything stated in the sanctioned scheme
(in particular paras 5.2 as well as 10.2) and/or in the order
dated 5th February, 2010, the six overlapping licences of
the Transferor Company/Spice would not stand transferred
or vested with Transferee Company/Idea till prior permission
of DOT is obtained. In fact, till permission of DOT is granted,
the overlapping licences of Spice shall forthwith stand
transferred/vested with the Licensor, i.e., DOT. The spectrum
allocated for such overlapping licences shall also forthwith
revert back to DOT. In the event DOT refuses or grants
conditional approval to transfer of licences, Idea would be
entitled to challenge the same before TDSAT who would
decide the same in accordance with law after hearing both
the parties. Since the Transferee Company has used the
overlapping licences without any prior permission of DOT
from 5th February, 2010 till date in contravention of the
Licence and Merger Guidelines, it is directed that it shall be
open to DOT to pass any order for such breach. Needless
to say, any order passed by DOT can be challenged by Idea
before any competent court or tribunal. To avoid
inconvenience to public at large, DOT is directed to ensure
that cell phone customers of the two overlapping licence
areas namely, Punjab and Karnataka are provided regular
and uninterrupted services like in the past. (Para 81)
To meet the ends of justice, this Court is also of the view
that costs should be imposed on Idea for not bringing to the
notice of this Court the rejection letters dated 7th January,
2010 and 18th January, 2010 issued by DOT and for not
placing on record relevant and material documents like
Licence, Merger Guidelines and correspondence exchanged
between the parties. In the opinion of this Court, the
suppression of aforesaid documents was not an innocent
act especially in view of petitioners’ own understanding of
licences and merger guidelines as reflected in the
contemporaneous correspondences. Accordingly, this Court,
keeping in view the nature of petitioners’ business, imposes
costs of Rupees One Crore to be paid by Idea to DOT within
six weeks. It is further directed that the Ministry of Corporate
Affairs shall conduct a study with regard to special statutes,
guidelines and licences applicable to super specialised
companies like the petitioners and suggest remedial
measures to ensure that no party can obtain sanction of a
scheme of arrangement without placing on record material
and relevant documents before the Court. In fact, both the
Ministry and DOT must suggest remedial measures by which
suppression of facts and documents can be detected at the
earliest stage in a scheme filed under Sections 391 to 394
of the Act including appointment of more professionals like
Chartered Accountants, Company Secretaries and Cost
Accountants in the offices of Regional Director and Official
Liquidator. (Para 83)
477 478
Indian Law Reports (Delhi) ILR (2011) VI Delhi479 480M/s. Spice Communications Limited & Anr. (Manmohan, J.)
Important Issue Involved: High Court has the exclusive
jurisdiction to decide the issue of arrangement of companies.
Permission of DoT is required where merger/amalgamation
of companies necessarily results in transfer of licences.
[Sa Gh]
APPEARANCES:
FOR THE PETITIONERS : Dr. A M. Singhvi, Mr. Neeraj Kishan
Kaul and Mr. C. Vaidyanathan,
Senior Advocates with Mr. Sandeep
Singhvi, Mr. Gopal Jain, Mr. Manjul
Bajpai, Mr. Rishi Agarwala, Mr.
Ankit Shah, Mr. Aneesh Patnayak
and Mr. Rajiv Kumar, Advocates for
IDEA Cellular Limited. Mr. A.S.
Chandhiok, ASG with Ms. Maneesha
Dhir, Mr. Ritesh Kumar, K.P.S.
Kohli, Mr. Simranjeet Singh and Mr.
N. Bhavi, Advocates for DOT. Mr.
Rajiv Bahl, Advocate for Official
Liquidator.
CASES REFERRED TO:
1. Sesa Industries Limited vs. Krishna H. Bajaj & Ors.,
(2011) 3 SCC 218).
2. Meghmala and Ors. vs. G. Narasimha Reddy and Ors.,
(2010) 8 SCC 383.
3. Meghmala & Ors. vs. G. Narasimha Reddy & Ors., JT
2010 (8) SC 658.
4. A.V. Papayya Sastry and Ors. vs. Government of A.P.
and Ors., (2007) 4 SCC 221].
5. Hamza Haji vs. State of Kerala and Anr., (2006) 7 SCC
416.
6. United India Insurance Co. Ltd. vs. Rajendra Singh &
Ors. [JT 2000 (3) SC 151: AIR 2000 SC 1165].
7. Central Bank of India vs. Ambalal Sarabhai Enterprises
Ltd., (1999) 3 Comp. LJ 98 (Guj).
8. Miheer H. Mafatlal vs. Mafatlal Industries Ltd., (1997)
1 SCC 579.
9. S.P. Chengalvaraya Naidu (Dead) by LRs vs. Jagannath
(Dead) & LRs & Ors., (1994) 1 SCC 1.
10. Vasant Investment Corporation Ltd. vs. Official Liquidator,
Colaba Land and Mill Co. Ltd. (1981) 51 Comp. Cas.
20.
11. S.K. Gupta & Anr. vs. K.P. Jain & Anr., (1979) 3 SCC
54.
12. Maneckchowk and Ahmedabad Manufacturing Co. Ltd.,
(1970) 40 Comp. Cas. 819 (Guj.).
RESULT: Applications disposed of.
MANMOHAN, J.
1. Company Applications No. 578-579/2011 have been filed by the
Department of Telecommunication (in short ‘DOT’) under Rules 6 and
9 of the Companies (Court) Rules, 1959 for recall and stay of this
Court’s order dated 5th February, 2010 by virtue of which amalgamation
of Spice Communication Limited (for short ‘Spice’) with Idea Cellular
Limited (for short ‘Idea’) was allowed.
2. Upon the present applications being mentioned before the Division
Bench, the matter was directed to be listed before this Court on 30th
March, 2011. On the said date, this Court passed the following order:
“Co. Appl. 578/2011 in Co. Pet. 403/2009
Mr. A.S. Chandhiok, learned ASG has drawn my attention to
the fact that the Ministry of Telecommunication vide its letters
the dated 07 January, 2010 (page 60) and 18 January, 2010
(page 63) of the present application, had rejected the application
of Amalgamation of M/s. Spice Communication Limited with M/
s. Idea Cellular Limited.
Mr. Chandhiok further submits that these facts were to brought
to the notice of the Court on 28th January, 2010 when this
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Court had reserved the judgment in the present case.
Issue notice to non-applicants by all modes including dasti,
returnable for 25th April, 2011.
Co. Appl. 579/2011 in Co. Pet. 403/2009
Issue notice to non-applicants by all modes including dasti,
returnable for 25th April, 2011.
Keeping in view the aforesaid, the operation of order dated
05th February, 2010 is stayed till the disposal of the present
application.”
3. Thereafter Company Application No. 611/2011 was filed by the
petitioner-companies namely, Spice and Idea seeking vacation of the
aforesaid order dated 30th March, 2011. Keeping in view the urgency in
the matter, this Court, with consent of parties, decided to finally hear all
the aforesaid applications.
4. Briefly stated the relevant facts of the present case are that both
the petitioner-companies are telecommunication companies which have
been granted various Unified Access Services Licence Agreements (for
short ‘licences’) for different areas on terms and conditions mentioned
therein. The said licences have been issued under Section 4 of the
Telegraph Act, 1885. The relevant clauses of a sample Licence are
reproduced hereinbelow:
“1. Ownership of the LICENSEE Company…….
1.3 The merger of Indian companies may be permitted as long
as competition is not compromised as defined in condition 1.4
(ii).
1.4 The LICENSEE shall also ensure that:
(i) Any change in share holding shall be subject to all applicable
statutory permissions.
(ii) No single company/legal person, either directly or through
its associates, shall have substantial equity holding in more
than one Licensee Company in the same service area for
the Access Services namely; Basic, Cellular and Unified
Access Service. ‘Substantial equity’ herein will mean
equity of 10% or more’. A promoter company/Legal person
cannot have stakes in more than one Licensee Company
for the same service area……………………
xxx xxx xxx xxx
6. Restrictions on ‘Transfer of Licence’
6.1 The LICENSEE shall not, without the prior written consent
as described below of the LICENSOR, either directly or indirectly,
assign or transfer this LICENCE in any manner whatsoever to
a third party or enter into any agreement for sub-Licence and/
or partnership relating to any subject matter of the LICENCE to
any third party either in whole or in part i.e. no sub-leasing/
partnership/third party interest shall be created. Provided that the
LICENSEE can always employ or appoint agents and employees
for provision of the service.
6.2 Intra service area mergers and acquisitions as well as transfer
of licences may be allowed subject to there being not less than
three operators providing Access Services in a Service Area to
ensure healthy competition as per the guidelines issued on the
subject from time to time.
6.3 Further, the Licensee may transfer or assign the License
Agreement with prior written approval of the Licensor to be
granted on fulfillment of the following conditions and if otherwise,
no compromise in competition occurs in the provisions of Telecom
Services:
(i) When transfer or assignment is requested in accordance with
the terms and conditions on fulfillment of procedures of Tripartite
Agreement if already executed amongst the Licensor, Licensee
and Lenders; or
(ii) Whenever amalgamation or restructuring i.e. merger or de-
merger is sanctioned and approved by the High Court or Tribunal
as per the law in force; in accordance with the provisions; more
particularly Section 391 to 394 of the Companies Act, 1956; and
(iii) The transferee/assignee is fully eligible in accordance with
eligibility criteria contained in tender conditions or in any other
Indian Law Reports (Delhi) ILR (2011) VI Delhi483 484M/s. Spice Communications Limited & Anr. (Manmohan, J.)
document for grant of fresh license in that area and show its
willingness in writing to comply with the terms and conditions
of the license agreement including past and future roll out
obligations; and
(iv) All the past dues are fully paid till the date of transfer/
assignment by the transferor company and its associate(s)/ sister
concern(s)/ promoter(s) and thereafter the transferee company
undertakes to pay all future dues inclusive of anything remained
unpaid of the past period by the outgoing company.
xxx xxx xxx xxx
16. General
16.1 The LICENSEE shall be bound by the terms and conditions
of this Licence Agreement as well as by such orders/directions/
regulations of TRAI as per provisions of the TRAI Act, 1997 as
amended from time to time and instructions as are issued by the
Licensor/TRAI.……………...
(emphasis supplied)
5. Admittedly, the merger of aforesaid licences is subject to guidelines
issued from time to time by the Government of India. For the present
case, the Guidelines dated 22nd April, 2008 for intra service area Merger
are relevant. The relevant extract of Merger Guidelines, 2008 is reproduced
hereinbelow:
No. 20-100/2007-AS-I
Government of India
Ministry of Communications and Information Technology
Department of Telecommunications
Sanchar Bhawan, 20, Ashok Road, New Delhi
22nd April, 2008
Subject : Guidelines for intra service area Merger of Cellular
Mobile Telephone Service (CMTS)/Unified Access Services
(UAS) Licences
The intra service area Merger of CMTS/UAS Licences shall
be permitted as per the guidelines mentioned below for proper
conduct of Telegraphs and Telecommunication services, thereby
serving the public interest in general and consumer interest in
particular:
1. Prior approval of the Department of Telecommunications shall
be necessary for merger of the licence………….
xxx xxx xxx xxx
17. “Any permission for merger shall be accorded only after
completion of 3 years from the effective date of the
licences………….
(emphasis supplied)
6. It is pertinent to mention that Spice had licences for six different
areas which were overlapping with Idea. While four out of the six
overlapping licences were non-operative, two licences namely for Punjab
and Karnataka areas were operative.
7. On 25th June, 2008 Idea through its letter informs DOT that
there is a proposal to merge Spice with Idea in accordance with Sections
391 to 394 of the Companies Act, 1956 (hereinafter referred to as ‘Act’)
on receipt of all necessary approvals. In this letter, Idea admits that
merger of companies will result in vesting of Spice licences with Idea.
8. Idea vide its letter dated 15th July, 2008 seeks DOT’s opinion
as to whether overlapping licences can be merged in view of Clause 17
of the Merger Guidelines, 2008 dated 22nd April, 2008. Idea also seeks
DOT’s guidance as to whether it would be appropriate for Idea to
demerge the overlapping licences prior to merger of companies and/or
whether it would be better for Idea to surrender the non-operative
overlapping licences.
9. On 1st August, 2008, Idea reiterates that it would seek DOT’s
prior written approval as well as approval of the High Court for transferring
the overlapping Spice licences.
10. On 7th August, 2008 a meeting is held between officials of
petitioner-companies and DOT in which DOT opines that overlapping
licences should be surrendered and clarifies that in the event of surrender,
the entry fee for obtaining such licences would be non-refundable and
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the spectrum allocated for such licences would have to be surrendered.
From the Minutes of Meeting on record it is apparent that the demerger
proposal is not discussed in the said meeting.
11. On 1st December, 2008 Idea seeks DOT’s approval for demerger
of two overlapping licences for Punjab and Karnataka areas along with
already granted spectrum for the said areas.
12. On 17th October, 2008, without getting any prior permission,
Idea acquires 41.09% equity in Spice. It is pertinent to mention that this
fact is intimated for the first time to DOT vide six monthly FDI compliance
letter of Spice dated 28th January, 2009. Thereafter, Spice and Idea
repeatedly write letters to DOT claiming that acquisition of 41.09% equity
in Spice is not violative of Clause 1.4(ii) of Licences which deals with
substantial equity cross holding.
13. On 12th May, 2009, Idea intimates to DOT that it has on 11th
May, 2009 filed a restructuring scheme for demerger between Idea and
Vitesse Telecom Private Limited in the High Court of Gujarat. However,
filing of amalgamation scheme of Spice with Idea is not disclosed to
DOT. The said scheme is disclosed to DOT for the first time on 23rd
June, 2009.
14. In fact, from the documents on record it is apparent that in
May, 2009 petitioner-companies had filed four ‘mirror schemes’ in the
High Courts of Gujarat and Delhi. While two schemes are filed seeking
sanction of scheme of amalgamation of Spice with Idea, the other two
demerger schemes are filed with a view to transfer the overlapping six
licences to independent third parties namely, Vitesse Telecom Private
Limited and Claridges Communications Private Limited. The intent behind
filing the four schemes is to ensure that the merged company does not
hold more than one operative licence for any particular area.
15. However, neither in the merger application being CA(M) 99/
2009 nor in the demerger application being CA(M) 98/2009 filed in this
Court copies of licences or Merger Guidelines, 2008 or correspondence
exchanged between the parties are placed on record.
16. On 18th May, 2009, this Court allows the first motion demerger
application being CA(M) 98/2009 by directing convening of meetings of
equity shareholders, secured and unsecured creditors of Spice. The said
meetings are directed to be convened on 11th September, 2009.
17. However, during the summer vacation, upon an application
being filed by petitioner in CA(M) 98/2009 holding of meetings is deferred
as the applicant states that fresh guidelines from Ministry of
Communication and Information Technology are awaited with regard to
allocation of spectrum to telecom operators and transfer of the same.
18. On 26th November, 2009, the Gujarat High Court approves the
merger scheme between Idea and Spice.
19. On 7th January, 2010 and 18th January, 2010, DOT communicates
to Idea that merger as well as demerger as proposed by the petitioner-
companies is impermissible as some of the overlapping licences are less
than three years old. DOT in the said letters relies upon Clause 17 of the
intra service area merger guidelines dated 22nd April, 2008.
20. Idea in its reply dated 25th January, 2010 states that merger of
licences was different from merger of companies and that Clause 17 of
the Merger Guidelines, 2008 is not attracted to the present case.
21. On 28th January, 2010, this Court reserves its judgment in the
second motion petition for amalgamation being CP 403/2009. It is an
admitted position that DOT’s letters dated 7 January, 2010 and 18 January,
2010 are not brought to the notice of this Court when it reserves its
judgment.
22. On 5th February, 2010, this Court allows the aforesaid merger
petition and sanctions the scheme of amalgamation. One of the conditions
precedent for the scheme of amalgamation is that overlapping licences
would have to be transferred in accordance with the scheme of demerger.
The relevant portion of the Clause 17 of the Scheme sanctioned by this
Court is reproduced hereinbelow:-
“17. Scheme Conditional on approvals/sanctions
The Scheme is conditional upon and subject to:
xxxx xxxx xxxx xxxx
17.3 the sanction of the Scheme of Demerger-Spice and the
sanction of the Scheme of Demerger-Idea by the Courts and the
same being made effective in terms of the Scheme of Demerger-
Indian Law Reports (Delhi) ILR (2011) VI Delhi487 488M/s. Spice Communications Limited & Anr. (Manmohan, J.)
is placed on record at pages 167-168 of the paper book. A
perusal of the same shows that the said letter applies to the
transfer of licences in respect of internet services and the written
approval of the licencor will be granted only after the Scheme is
sanctioned by the High Court. In view thereof, the objection
raised by the Regional Director is overruled.”
24. On 11th May, 2010, petitioner-companies withdraw the demerger
scheme being CA(M) 98/2009.
25. Thereafter various petitions are filed by Idea challenging penalty
and termination orders passed by DOT in Telecom Disputes Settlement
and Appellate Tribunal (for short ‘TDSAT’). Further, Idea has also
challenged before the TDSAT the validity and legality of the letters dated
7th January, 2010 and 18th January, 2010 issued by DOT rejecting their
merger proposal. Subsequent to this Court’s order dated 05th February,
2010, the petitioner-companies took the stand in correspondence and
legal proceedings that upon the merger scheme being sanctioned by this
Court, overlapping licences stand vested in Idea and that DOT has no
other option but to grant its formal approval for transfer of licences.
26. In March, 2011 the present applications for recall and stay of
this Court’s order dated 5th February, 2011 are filed.
27. Mr. A.S. Chandhiok, learned Additional Solicitor General of
India submits that DOT’s letters dated 7th January, 2010 and 18th January,
2010, by which amalgamation of petitioner-companies is rejected, has
been suppressed from this Court. In the letter dated 7th January, 2010,
DOT states .This has reference to M/s. Idea Cellular Limited (ICL) and
M/s. Spice Communications Limited intimated to DoT vide their letter
dated 25 June 2008, July 15, 2008 and ICL letter dated July 17, 2008,
August 1, 2008, regarding proposed merger of Spice Communications
Limited with Idea Cellular Limited. Also letter dated December 1, 2008,
May 12, 2009 & June 23, 2009 from IGL regarding de-merger of 2 over
lapping licences. M/s. Spice Communications Limited having UAS Licence
in Punjab and Karnataka, M/s Idea Cellular Limited also hold UAS
licences with effective date of 25 January 2008, which is less than 3
years and M/s ICL holds CMTS Licences in Andhra Pradesh, Maharashtra,
Haryana and Delhi where M/s. Spice Communications Ltd. (SCL) also
holds UAS licence with effective date 29.02.2008 and 03.03.2008, which
Spice and the Scheme of Demerger-Idea, respectively, or such
other arrangement being made by Idea and Spice with respect to
Overlapping Idea UASLs and Overlapping Spice UASLs,
respectively, in accordance with the prevailing UASL conditions
and applicable regulations in the event the Scheme of Demerger-
Spice and the Scheme of Demerger-Idea is not pursued or that
the said Scheme of Demerger – Spice and the Scheme of
Demerger-Idea do not become effective for any reason
whatsoever..
(emphasis supplied)
23. It is pertinent to mention that during the course of hearing of
merger petition, the Regional Director (Northern Region) relies upon
DOT’s letter dated 9th June, 2003 pertaining to internet service and
thereafter, this Court observes that written approval of licensor should be
obtained after scheme is sanctioned by this Court. The relevant portion
of this Court’s order dated 5th February, 2010 is reproduced hereinbelow:
“21. The Regional Director, while referring to Para 5.2 of the
Scheme regarding transfer of licences of the transferor company
to the transferee company, has submitted that the transferee
company may be directed to obtain the necessary approvals
from the Ministry of Telecommunications for transfer of licences
after the sanction of the Scheme by this Court, since the Ministry
of Telecommunications vide letter No. 820-1/2003-LR dated
9.06.2003 has clarified that the licencee may transfer the licence
with prior written approval of the licensor, even in the case of
Scheme of Amalgamation under Section 391/394 of the Companies
Act, 1956.
22. In response to the above objection, the petitioner/ transferor
company in the affidavit dated 11th December, 2009 of Sh.
Sumit Arya, authorised signatory of the transferor company, has
submitted that the letter dated 9.06.2003 issued by the Ministry
of Telecommunications pertains to licences of internet service
and not for Telecom licences and that approval of Department
of Telecommunication is required to be taken only after approval
of the Scheme of Amalgamation by the High Court under Section
391-394 of the Companies Act, 1956. A copy of the said letter
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is less than 3 years. Therefore, as per licence condition 17 of intra circle
merger guideline dated 22.04.2008 merger of companies cannot be
permitted.” According to him, the suppression of aforesaid letters is
deliberate, with an intent to obtain transfer of licences and merger of
petitioner-companies.
28. Mr. Chandhiok further submits that both the petitioner-companies
have not only suppressed the aforesaid letters but also the Licence
Agreements and Merger Guidelines, 2008, under which prior permission
of DOT for merger of companies is mandatory. He places on record
various letters exchanged between the parties to show that petitioner-
companies have suppressed that they were in the midst of discussion of
various options with DOT including simultaneous demerger and merger
of petitioner-companies and/or surrender of overlapping licences. He points
out that petitioner-companies have also not brought to the notice of this
Court that a ‘prior issue’ had already arisen between the parties as to
whether the substantial equity clause in the Licence Agreements had been
violated.
29. In this connection, Mr. Chandhiok places reliance upon
observations of the Apex Court in S.P. Chengalvaraya Naidu (Dead)
by LRs Vs. Jagannath (Dead) & LRs & Ors., (1994) 1 SCC 1
wherein the Supreme Court has held as under:-
“5. The High Court, in our view, fell into patent error. The short
question before the High Court was whether in the facts and
circumstances of this case, Jagannath obtained the preliminary
decree by playing fraud on the court. The High Court, however,
went haywire and made observations which are wholly perverse.
We do not agree with the High Court that .there is no legal duty
cast upon the plaintiff to come to court with a true case and
prove it by true evidence.. The principle of ‘finality of litigation,
cannot be pressed to the extent of such an absurdity that it
becomes an engine of fraud in the hands of dishonest litigants.
The courts of law are meant for imparting justice between the
parties. One who comes to the court, must come with clean
hands. We are constrained to say that more often than not,
process of the court is being abused. Property-grabbers, tax-
evaders, bank-loan-dodgers and other unscrupulous persons from
all walks of life find the court-process a convenient lever to
retain the illegal gains indefinitely. We have no hesitation to say
that a person, who‘s case is based on falsehood, has no right to
approach the court. He can be summarily thrown out at any
stage of the litigation.
6. The facts of the present case leave no manner of doubt that
Jagannath obtained the preliminary decree by playing fraud on
the court. A fraud is an act of deliberate deception with the
design of securing something by taking unfair advantage of another.
It is a deception in order to gain by another’s loss. It is a
cheating intended to get an advantage. Jagannath was working as
a clerk with Chunilal Sowcar. He purchased the property in the
court auction on behalf of Chunilal Sowcar. He had, on his own
volition, executed the registered release deed (Ex. B-15) in favour
of Chunilal Sowcar regarding the property in dispute. He knew
that the appellants had paid the total decretal amount to his
master Chunilal Sowcar. Without disclosing all these facts, he
filed the suit for the partition of the property on the ground that
he had purchased the property on his own behalf and not on
behalf of Chunilal Sowcar. Non-production and even non-
mentioning of the release deed at the trial is tantamount to playing
fraud on the court. We do not agree with the observations of the
High Court that the appellants-defendants could have easily
produced the certified registered copy of Ex. B-15 and non-
suited the plaintiff. A litigant, who approaches the court, is bound
to produce all the documents executed by him which are relevant
to the litigation. If he withholds a vital document in order to gain
advantage on the other side then he would be guilty of playing
fraud on the court as well as on the opposite party.”
30. Mr. Chandhiok further submits that without prior permission of
DOT, the petition for merger of petitioner-companies could not have
been filed before this Court. In this connection, he draws the attention
of this Court to Clauses 1.3, 1.4 and 6 of Licence which, according to
him, entail that prior to merger of companies, permission is required to
be taken from DOT. According to him, Clauses 6.1 and 6.2 of Licence,
while dealing with transfer of licences, prohibit transfer of licences without
prior permission of DOT/Licensor. He clarifies that after approval of
merger under Sections 391-394 of the Act, Clause 6.3 provides for
Indian Law Reports (Delhi) ILR (2011) VI Delhi491 492M/s. Spice Communications Limited & Anr. (Manmohan, J.)
transfer or assignment of agreement. He submits that under the scheme
of the licence, prior permission having been obtained under Clauses 6.1
and 6.2, the scope of 6.3 is restricted to assignment of licence agreement
pursuant to approval of merger scheme by this Court under Sections
391-394 of the Act. Mr. Chandhiok lays emphasis on the petitioner’s
own letter dated 1st August, 2009 to show that petitioner’s own
understanding is that prior permission of DOT is required under Clause
6.
31. Without prejudice to his interpretation of Clauses 6.1, 6.2 and
6.3, Mr. Chandhiok submits that after the Merger Guidelines, 2008 have
come into force, prior permission is required for merger of companies.
32. Mr. Chandhiok submits that this Court’s order approving scheme
of amalgamation has caused grave prejudice to DOT. He submits that in
accordance with Clause 17 of the merger guidelines, transfer of licences
and/or merger of petitioner companies is not permissible prior to 25th
January, 2011. He points out that this Court’s order granting merger of
petitioner-companies is being used by petitioner-companies to contend
that once merger has been approved by the Company Court, all violations
prior to that date of various clauses of licences and of guidelines have
ceased to exist.
33. He also submits that delay in filing the application for recall
does not disentitle DOT from claiming the reliefs sought for in the
present application. He points out that the Gujarat High Court in Central
Bank of India Vs. Ambalal Sarabhai Enterprises Ltd., (1999) 3
Comp. LJ 98 (Guj) had not only entertained an application filed after four
years for recall of the amalgamation scheme but had also set aside the
amalgamation order ten years after the scheme had been sanctioned. In
this connection, he refers to and relies upon the following observations
of the Gujarat High Court:
“24. The main contention raised on behalf of the respondent is
that the appellants are contending that the order in question is
obtained by playing fraud and that claim of the appellants could
not be entertained in the appeal and that they will have to go for
a separate proceeding by way of filing a suit to challenge the
order. We would like to mention here that when the appeal is
admitted under the law, appeal amounts to the continuation of
the original proceeding. Therefore, when the appeal is the
continuation of the original proceeding, it is open for a party to
show that the party which has obtained an order or seeking an
order has played or playing fraud on the court. When there is an
allegation of fraud, it must be always remembered that there
could not be a direct proof of fraud. The fraud will have to be
inferred from the various circumstances which have to be brought
on record by a party. Each circumstance may not be sufficient
to prove a fraud, but all the circumstances taken together may
indicate the fraud. It is always open to a party to show to the
court that the party which is seeking an order in his favour is
playing fraud on the court. Similarly, it must be also mentioned
that the provisions of sections 391 and 392 confer wide powers
on the courts and those powers are exercisable not at the time
of making order under section 391 but also at any time thereafter,
because the courts have wider statutory powers and responsibility
in order to see as to whether the working of arrangement scheme
is in the best interest of the persons who are to be principally
effected, i.e., the shareholders and the creditors, and, therefore,
subsequent conduct of the respondent No.1 ASE after passing of
the order by the learned Company Judge on 24 December, 1987,
could be taken into consideration by this Court while considering
these appeals. We have quoted above the correspondence between
ASE and the banks. The same clearly shows that the banks had
laid a condition that ASE to continue as guarantor even after the
approval of the arrangement/ amalgamation scheme till some
arrangement to the satisfaction of the banks is made. When ASE
had showed in the affidavits in support of the petition as well as
in the petition that they have obtained consent of the secured
creditors—the banks, it is obvious that the consent is on account
of ASE accepting to be a guarantor even after the approval of
the scheme. But when ASE refuses that position after the
approval, it is clear case of ASE playing fraud on the court as
well as the banks.
25. It was vehemently urged before us that the appellant will
have to go before a regular court to establish its claim of fraud
and that claim could not be considered in these appeals. At the
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cost of repetition, it must be stated that the appeal is continuation
of the original proceeding, it is always open for a party to show
that the opposite party is playing fraud on the court and is
misleading the court and trying to obtain order in his favour. For
that purpose, it is not necessary for him to take a separate
proceeding. Therefore, we are unable to accept that contention
of the respondent. In our opinion, by not producing the latest
audited accounts and balance sheet of the company and by not
putting on record the actual agreement which took place between
ASE and the banks – secured creditors and by making a false
statement that secured and unsecured creditors have approved
the scheme, the respondent had played fraud on the court. We,
therefore, hold that the order passed by the learned Company
Judge was obtained by the respondent by playing fraud.
26. At the time of arguing these appeals, the learned advocate for
the respondent had made it clear that it was not at all possible
for the respondent to have rethinking on the said scheme and to
get reapproval for the said scheme. Therefore, in the
circumstances, there is no alternative other than rejecting the
scheme of arrangement and amalgamation. Thus, we hold that
the present appeals will have to be allowed and the schemes put
forth by the petitioner in Company Petitions Nos. 90/86 and 91/
86 will have to be rejected.”
34. On the other hand, Dr. A.M. Singhvi, learned senior counsel for
petitioner-companies submits that DOT has no locus standi to file the
present applications as it is neither a shareholder nor a creditor of erstwhile
Spice. He further submits that the case set out by learned ASG during
the course of arguments that DOT is a creditor of Idea is an afterthought
inasmuch as this fact has not been averred in the applications filed by
DOT. He also points out that DOT has never claimed to be a creditor
and it never approached this Court at the initial stage even though it was
well aware of the merger process since its inception. According to him,
mere condition for payment of periodic licence fee and/or spectrum
charges does not make DOT a creditor of Idea/Spice. He further submits
that even assuming that the DOT is a creditor, it has to show that it was
affected by the Scheme in its capacity as an alleged creditor of erstwhile
Spice. In this connection, Dr. Singhvi relies upon the judgments of
different High Courts namely, In Re: Hindalco Industries Limited,
Company Petition No. 293 of 2009 (Bom.) decided on 22nd June, 2009,
In Re: SIEL Limited, (2004) 122 Comp Cas. 536 (Del.) and Sequent
Scientific Ltd., (2009) 151 Comp Cas. 1 (Bom.).
35. Dr. Singhvi further submits that every non-disclosure does not
amount to suppression. According to him, the omission to place on
record letters dated 7th January, 2010 and 18th January, 2010 is an innocent
act without effect since DOT has no jurisdiction or authority to reject the
merger of companies. Dr. Singhvi vehemently submits that merger of
licences and merger of companies are separate, distinct, mutually exclusive
and non-overlapping. According to him, Clause 6.3 of the Licence
Agreement makes it clear beyond doubt that DOT has no say in the
merger of companies and can only adjudicate on the merger of licences.
36. Dr. Singhvi submits that licence agreement and merger guidelines
are public documents that constitute ‘law’ which are incapable of being
suppressed. According to him, suppression can only be of facts and not
of documents.
37. Dr. Singhvi refers to the correspondence exchanged between
the parties to contend that on 25th June, 2008 itself Idea had informed
DOT about the proposed merger and thereafter Spice/Idea addressed
various letters intimating DOT about different options including surrender
of non-operative overlapping licences as well as simultaneous merger and
demerger of companies. He also states that a meeting was held with high
ranking officers of DOT and Idea on 7th August, 2008 wherein all points
regarding the merger guidelines and licence conditions were exhaustively
discussed and considered. According to him, in the said meeting, DOT
raised no objection to the merger or the proposed course of action
suggested by Spice/Idea and accordingly, petitioner-companies proceeded
with the merger process on the understanding that DOT had no objections
whatsoever. Dr. Singhvi clarifies that it is not the claim of petitioner-
companies that there is an automatic merger of licences in view of
sanction of merger of companies by the Court. He relies upon the
observations of this Court in order dated 05th February, 2010 as
reproduced in para 23 hereinabove and states that, if required, this Court
may issue necessary clarifications protecting the interest of both petitioner-
companies as well as DOT.
Indian Law Reports (Delhi) ILR (2011) VI Delhi495 496M/s. Spice Communications Limited & Anr. (Manmohan, J.)
38. Dr. Singhvi also submits that DOT has suppressed material
facts and has approached this Court with unclean hands while filing the
present proceedings. He contends that DOT has suppressed the petitioners’
letter dated 25th January, 2010 sent in reply to the DOT’s letter dated 7th
January, 2010 wherein the petitioner-companies have clarified that the
DOT has no jurisdiction in respect of merger of companies. He emphasises
that DOT has suppressed from this Court the factum of meeting held on
7th August, 2008 between senior officers of DOT and petitioner-companies
wherein all points regarding merger guidelines and licence conditions
were exhaustively considered. Since considerable emphasis is laid by Dr.
Singhvi on the Minutes of Meeting dated 7th August, 2008, this Court had
asked learned Additional Solicitor General to produce the DOT’s file. The
Minutes of Meeting dated 7th August, 2008 are reproduced hereinbelow:-
“Reference note from pre-page.
2. A meeting was held on 7th August, 2008 under the
chairmanship of Secretary (T) attending by Member(T), DDG(AS-
I) and DDG(AS-II) with Managing Director of Idea, Mr. Sanjeev
Aga, representative of Idea, Shri Rajat Mukherjee and Shri Rahul
Vats.
3. Provisions of Guidelines for intra service area Merger of
Cellular Mobile Telephone Service (CMTS)/Unified Access
Services (UAS) Licences were noted.
4. It was observed that clause 17 states that any permission for
merger shall be accorded after three years from effective date of
licence. The opinion of Legal Adviser is based on Clause 17.
However, clause 18 states that during all licences of the merged
entity in the respective service area will be equal to the remaining
duration of the all merging licences whichever is less on the date
of merger. The merger, in fact, is not of the licenses but of the
companies in pursuance of Section 391 and 239(4) of the
Companies Act. Reading the clause 17 with clause 18, it can be
inferred that the intent is not to bar transfer of licences consequent
upon merger of companies which are otherwise more than three
years old, but the duration of the licences of the merged entity
will be equal to the remaining duration of the licences of the two
merging licences whichever is less on the date of merger.
Therefore, it will not be appropriate to impose a self-restriction
in the instant case.
5. Further, the same objective can be achieved by surrendering
one of the licences, transferring the subscribers to the other
entity. In case of surrender of licence, the spectrum returns to
the Government and can be allocated to the licence to which
subscribers have migrated based upon the subscriber criteria. In
the event of merger also, the excess spectrum held by the merged
entity has to be returned to the Government within a stipulated
period of three months. Therefore, in both the cases, any excess
spectrum is being returned to the Government and it does not
remain an issue.
6. As regards entry fee paid for obtaining such licences, it was
clarified that entry fee is non-refundable.
7. Shri Ajay Chakraborty, Hon‘ble M.P.(LS) has addressed
Hon‘ble MOC&IT on the subject vide PUC-I and PUC-II. It has
been stated that as per para 17 of the guidelines dated 22nd
April, 2008 clearly specifies that any permission for merger shall
be accorded only after completion of 3 years from the effective
date of the license. Since both Spice Communications and Idea
Communications do not meet this requirement, hence, the merger
violates Intra-Circle Merger Guidelines. Further, the case for
surrender of license or refund of entry fee should not be
considered.
8. In the second letter dated 21st July, 2008, it has been stated
that the merger and acquisition should not take place in blatant
violation of existing policy norms and a proper investigation be
initiated and policy compliance made mandatory at all costs.
9. The issue regarding merger of licences was discussed as
indicated in para 4 and 5 above. Further, surrender of licence is
permitted and there is no bar. However, the entry fee is not
refundable in any case. A draft reply to the Hon‘ble MP on the
above lines is placed below 20/C.
Submitted for kind consideration and approval of proposal in
para 9 please.
Sd/-20/8/08
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Member(T) Sd/-20/8
Secretary Sd/-22/8/2008
Hon‘ble MOC&IT Sd/-28/8/2008.
39. In fact, Dr. Singhvi points out that DOT has suppressed from
this Court that the same Department had permitted Idea to participate in
the 3G Spectrum bid subsequent to sanction of merger Scheme.
40. Dr. Singhvi also submits that DOT is not entitled to seek
adjudication of disputes by this Court under Sections 391 to 394 of the
Act in respect of issues which are already pending adjudication before
TDSAT. He submits that by virtue of Section 14 of the Telecom
Regulatory Authority of India Act, 1997 (in short ‘TRAI Act’), all issues
relating to licences as well as merger guidelines can be adjudicated only
by TDSAT and this Court should not hold any enquiry or go into the
questions which are pending before TDSAT.
41. Dr. Singhvi further submits that the petitioner companies have
not violated any licence conditions/guidelines. According to him, in the
present case as the overlapping licences are non-operational, the purport
of Clause 1.3 of the licence is not attracted and the raison d‘etre for
Clause 1.4 (ii) does not exist. He further submits that Clause 17 of the
merger guidelines is violative of Section 11(a) of the TRAI Act. Without
prejudice to the aforesaid, he submits that as the three years’ bar in
respect of new licences is today over, DOT is obliged to merge the
licence.
42. According to him Clause 6.3 clearly stipulates that approval of
DOT for merger of licences is to be obtained only on sanction of the
scheme of merger of companies by the High Court. He submits that if
Clause 6 of the licence condition read with Clause 1 of the guidelines
dated 22nd April, 2008 is read as sought by DOT, then Clause 6.3 of the
licence will become otiose.
43. Dr. Singhvi points out that DOT while approaching this Court
on 30th March, 2011 has failed to comply with the mandatory provisions
of Rule 19 of Companies (Court) Rules, 1959, inasmuch as it has not
served an advance copy of the applications on the petitioner-companies.
44. Dr. Singhvi further states that DOT has not made even a single
averment in its applications or disclosed any fact about the urgency for
passing of ex-parte order more particularly when it has approached this
Court after a gap of more than 12 months from the date of sanctioning
of the Scheme. Dr. Singhvi also submits that the judgment of Division
Bench in Central Bank of India Vs. Ambalal Sarabhai Enterprises Ltd.
(supra) has been set aside by the Supreme Court vide its judgment and
order dated 20th November, 2003. The passages of said judgment and
order relied upon by Dr. Singhvi are reproduced hereinbelow:
“The question then arises whether the Scheme is to be maintained.
In deciding this question, we have to keep in mind the fact that
the Scheme was sanctioned as far back on 24th December,
1987. The banks were well aware that the Scheme has been so
sanctioned. They did not immediately move to have the Scheme
set aside. After the Scheme was sanctioned, the lead bank carried
on corresponding with ASE. A meeting of the consortium of
banks was held where, except for Citi Bank and New Bank of
India no other bank objected to the Scheme having been
sanctioned. Thereafter two banks, namely, Bank of Baroda and
Central Bank participated in the proceedings before the BIFR.
After almost a year these two banks asked for a guarantee from
ASE. This came to be refused by a letter dated 16th January,
1989. It is only thereafter that these two banks filed the suit on
29 June, 1989. They filed their appeal on 9th March, 1990. They
took out an application for condonation of delay three years
thereafter. Undoubtedly delay has been condoned, but the facts
still remain that in the meantime, third party rights have been
created to the knowledge of the bank.
In our view, it would not be equitable at this stage to set aside
the Scheme. At the same time the interest of these two banks
must be protected. Before reorganisation they had security of all
assets of ASE. By and under the Scheme their security is confined
to assets of SSL. Central Bank was thus right in insisting on a
guarantee by ASE. We are quite sure that had the Company fairly
pointed out to the learned Single Judge that the consent was a
Indian Law Reports (Delhi) ILR (2011) VI Delhi499 500M/s. Spice Communications Limited & Anr. (Manmohan, J.)
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conditional consent, in the Scheme itself a condition regarding
giving of a guarantee by ASE for all dues of the Swastik Household
and Industrial Products Limited would have been incorporated.
In our view it would be equitable, under these circumstances, to
set aside the impugned judgment and maintain the order sanctioning
the Scheme with an additional condition of the Scheme that ASE
shall execute within one month from today a guarantee as required
by Central Bank. We are unable to accept submission that the
Central Bank was only asking for a guarantee for its dues. A
plain reading of the letter of Central Bank shows that it was
asking for a guarantee to cover of the Swastik Division and for
losses of the new company i.e. SSL. It is now admitted that the
suit filed by these two Banks is for recovery of losses of the
Swastik Division. Therefore, in our view, ASE must execute a
guarantee guaranteeing the dues in Suit No. 2520/1989 filed by
these two banks and which is pending before the Debts Recovery
Tribunal, Mumbai. We so direct. The guarantee shall be executed
within one month from today. On such guarantee being executed
the impugned judgment will stand set aside and the order
sanctioning Scheme with the additional condition set out
hereinabove shall stand approved. In the event of a guarantee not
being executed within time aforesaid, these Appeals shall stand
dismissed without any further orders. With these directions, these
Appeals stand disposed of. There will be no order as to costs.”
45. Dr. Singhvi lastly submits that balance of convenience is entirely
in favour of petitioner-companies and against DOT. He states that even
though the dispute between the parties is only in respect of six over
lapping licences (four belonging to erstwhile Spice and two belonging to
Idea), the DOT is virtually seeking stay of business of merged entity by
seeking stay of order dated 5th February, 2010 passed by this Court.
46. Having heard the parties at length, this Court would first like
to examine the extreme stand taken by both the parties, namely, DOT’s
submission that the present petition for merger could not have been filed
before this Court and petitioner-companies’ submission that that this
Court cannot make the sanction for merger of companies conditional
upon any statutory or regulatory permission.
47. On an analysis of Sections 391 to 394 of the Act, this Court
is of the view that it alone has the exclusive jurisdiction to decide the
issue of arrangement of companies. In fact, it has been repeatedly held
by various courts that sanction under Sections 391 to 394 of the Act is
a ‘single window clearance’ for the purposes of the Act and there is no
need for filing applications under the Act for instance for change of name
of company or alteration of memorandum/articles of association except
for reduction of capital in certain circumstances which requires a special
procedure. This is because the procedure under Sections 391 to 394 is
so elaborate that if separate independent applications under the Act are
insisted upon, it would result in unnecessary duplication of applications
and would be cumbersome. The law on this aspect has been succinctly
stated by the Bombay High Court in Vasant Investment Corporation
Ltd. v. Official Liquidator, Colaba Land and Mill Co. Ltd. (1981) 51
Comp. Cas. 20 which following In re: Maneckchowk and Ahmedabad
Manufacturing Co. Ltd., (1970) 40 Comp. Cas. 819 (Guj.) held as
under:
‘Basically, the court is given wide powers under section 391 of
the Companies Act to frame a scheme for the revival of the
company. Section 391 of the Companies Act is a complete code
under which the court can sanction a scheme containing all the
alterations required in the structure of the company for the
purpose of carrying out the scheme, except reduction of share
capital which requires a special procedure……..The whole
purpose of section 391 is to reconstitute the company without
the company being required to make a number of applications
under the Companies Act for various alterations which may be
required in its memorandum and articles of association for
functioning as a reconstituted company under the scheme…..”
48. But, in the opinion of this Court, this does not mean that if
some permission is required under any separate statute or licence, then
the same would not be obtained. This Court while sanctioning the scheme
can always stipulate that the scheme will come into effect only when
other statutory and contractual permissions have been obtained. Also, if
there is a prohibition of a particular time period on transfer of an asset,
then the Court can even adjourn the amalgamation proceedings till the
‘eclipse period’ is over. To hold otherwise would amount to not only
conferring supremacy on the Act vis-à-vis other statues/contracts, but
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would also amount to rendering nugatory other statutory and contractual
provisions – which the Act does not provide.
49. The scope and ambit of Clauses 6.1 and 6.2 are totally distinct
and separate from Clause 6.3. Prior permission in Clauses 6.1 and 6.2
gets attracted as and when transfer of licence is to occur like in the
present case of merger of two independent telecommunication companies.
50. This Court is also of the view that Clauses 6.1 and 6.2 relate
to transfer of licences, whereas Clause 6.3 provides for transfer of
assignment of the licence agreement. Clause 6.3 is attracted for instance
when formal transfer or arrangement of licence agreement is sought –
which will naturally happen after scheme of merger/amalgamation is
sanctioned by this Court. The requirement of prior permission of DOT
for transfer of licences (under Clause 6.1) is of utmost importance when
licences of overlapping areas are to be transferred like in present case
and that too, when some of the licences are not three years old. In fact,
Idea’s own understanding was that merger of companies would mean
transfer of licences as would be apparent from Idea’s own letters dated
25th June, 2008, 15th July, 2008 and also the application filed in the
Demerger Scheme.
51. Consequently, this Court is of the opinion that permission of
DOT is required prior to scheme of amalgamation coming into force
since the effect of the said scheme is that licences of Transferor/Spice
will stand transferred to Transferee/Idea. This Court is of the view that
merger of companies does not result in merger of licences but all merger/
amalgamation of companies necessarily results in transfer of licences—
for which prior permission is required under Clause 6.1 of the Licence.
Accordingly, the submission of petitioner-companies that the issue of
merger of companies is separate, distinct and extraneous to the terms of
the licence and merger guidelines, is untenable in law.
52. Dr. Singhvi’s submission that petitioner-companies have not
used overlapping licences is contrary to facts as it is an admitted position
that after the merger order dated 05th February, 2010, it is Transferee/
Idea who is using the Transferor/Spice’s licences for Karnataka and
Punjab circles.
53. Moreover, the submissions that petitioner-companies have
simultaneously not used two overlapping licences, does not impress this
Court inasmuch as non roll-out of licence obligations within a particular
time frame itself makes the licencee liable to pay compensation and
penalties. Also holding of two licences simultaneously by a company,
even if one of the licences is non-operative, prevents competition.
Consequently, in the opinion of this Court, a breach of licence condition
cannot be accepted as a ‘virtue’ – as is being sought to be submitted in
the present case by petitioner-companies.
54. Dr. Singhvi’s further submission that this Court should not
interpret the provisions of the licence and merger guidelines as this
jurisdiction vests with TDSAT, is both misconceived on facts and untenable
in law. To arrive at a conclusion that there is no impediment to the
amalgamation of companies and/or that no fraud has been played upon
this Court, this Court is vested with wide powers including interpretation
of other laws, interpretation of terms and conditions of licences etc.
55. As far as issue of non-service of advance copy of the application
is concerned, this Court is of the view that there is no requirement for
serving an advance copy in a disposed of matter. In any event, today this
order is being passed after hearing both the parties at length.
56. The further contention of Dr. Singhvi that petitioner-companies
proceeded with the merger process on the understanding that DOT has
no objection, is contrary to record. On a careful perusal of the documents
placed on record it is apparent that petitioner-companies were sitting on
the fence and were giving various proposals to DOT on different dates
with regard to merger, demerger and also qua surrendering of overlapping
licences.
57. From the documents on record it is apparent that petitioner-
companies did not accept DOT’s suggestion in the meeting held on 7th
August, 2008 of surrender of overlapping licences along with return of
spectrum and non-refund of licence fee. It is pertinent to mention that
after the meeting dated 07th August, 2008, Transferee/Idea not only filed
the Scheme for Demerger to facilitate transfer of overlapping licences to
third parties namely, Vitesee Telecom Private Limited and Claridges
Communications Private Limited but also accepted spectrum in the year
1st 2008 and 2009 in licences it proposed to surrender. In fact, on
December, 2008, much after the alleged consensual meeting dated 7th
August, 2008, Idea had sought prior permission of DOT for demerger
Indian Law Reports (Delhi) ILR (2011) VI Delhi503 504M/s. Spice Communications Limited & Anr. (Manmohan, J.)
of two overlapping licences. If permission had been granted by DOT on
7th August, 2008 as claimed by the petitioner-companies, then it is not
understood as to why Idea sought prior permission for demerger in
2008. Even the demerger plan was given up by petitioner-companies
after they obtained sanction for merger of Spice with Idea!
58. It is also not understood as to how DOT’s consent in August,
2008 could be claimed for transfer of overlapping licences to Idea when
the Scheme itself proposed by Idea and sanctioned by this Court on 5th
February, 2010 states in para 17.3 that the said Scheme is conditional on
approval/sanction of demerger of overlapping licences of Spice and Idea
to third companies namely, Vitesse Telecom Private Limited and Claridges
Communications Private Limited. In fact, in the opinion of this Court, the
petitioner-companies are today in violation of their own scheme!
59. It may also be noted that Mr. Chandhiok has pointed out that
Idea has not been allocated 3G Spectrum licences in Punjab Service areas
in view of the alleged violation. It was also stated at the bar that Idea has
challenged the non-allocation of 3G Spectrum in Punjab before TDSAT.
60. Before this Court decides the heart of the controversy, namely,
as to whether there is suppression and/or fraud played upon the Court,
this Court is of the view that it is essential to clearly outline what the
aforesaid concepts mean and whether every non-disclosure of a document
constitutes suppression.
61. In fact, the Supreme Court in its various judgments has dealt
with the aforesaid concepts at length. In Hamza Haji Vs. State of
Kerala and Anr., (2006) 7 SCC 416, the Supreme Court has held as
under:-
“10. It is true, as observed by De Grey, C.J., in R. v. Duchess
of Kingston that:
“‘Fraud’ is an extrinsic, collateral act, which vitiates the most
solemn proceedings of courts of justice. Lord Coke says it avoids
all judicial acts ecclesiastical and temporal.”
11. In Kerr on Fraud and Mistake, it is stated that:
“In applying this rule, it matters not whether the judgment
impugned has been pronounced by an inferior or by the highest
court of judicature in the realm, but in all cases alike it is
competent for every court, whether superior or inferior, to treat
as a nullity any judgment which can be clearly shown to have
been obtained by manifest fraud.”
xxxx xxxx xxxx xxxx
15. The law in India is not different. Section 44 of the Evidence
Act enables a party otherwise bound by a previous adjudication
to show that it was not final or binding because it is vitiated by
fraud. The provision therefore gives jurisdiction and authority to
a court to consider and decide the question whether a prior
adjudication is vitiated by fraud. In Paranjpe v. Kanade it was
held that: (ILR p. 148)
“It is always competent to any court to vacate any judgment
or order, if it be proved that such judgment or order was obtained
by manifest fraud;”
xxxx xxxx xxxx xxxx
21. In Ram Preeti Yadav v. U.P. Board of High School and
Intermediate Education this Court after quoting the relevant
passage from Lazarus Estates Ltd. v. Beasley and after referring
to S.P. Chengalvaraya Naidu v. Jagannath reiterated that fraud
avoids all judicial acts. In State of A.P. v. T. Suryachandra
Rao this Court after referring to the earlier decisions held that
suppression of a material document could also amount to a fraud
on the Court. It also quoted (at SCC p. 155, para 16) the
observations of Lord Denning in Lazarus Estates Ltd. v.
Beasley that: (All ER p. 345 C)
“No judgment of a court, no order of a Minister, can be
allowed to stand if it has been obtained by fraud. Fraud unravels
everything.”
22. According to Story's Equity Jurisprudence, 14th Edn., Vol.
1, para 263
“Fraud indeed, in the sense of a Court of Equity, properly
includes all acts, omissions, and concealments which involve a
breach of legal or equitable duty, trust, or confidence, justly
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reposed, and are injurious to another, or by which an undue and
unconscientious advantage is taken of another.”
23. In Patch v. Ward Sir John Rolt, L.J. held that:
“Fraud must be actual positive fraud, a meditated and intentional
contrivance to keep the parties and the court in ignorance of the
real facts of the case, and obtaining that decree by that
contrivance.”
24. This Court in Bhaurao Dagdu Paralkar v. State of
Maharashtra held that: (SCC p. 607)
“Suppression of a material document would also amount to a
fraud on the court. Although, negligence is not fraud but it can
be evidence on fraud.”
(emphasis supplied)
62. The Supreme Court in Meghmala & Ors. Vs. G. Narasimha
Reddy & Ors., JT 2010 (8) SC 658 has also held as under:
“20. It is settled proposition of law that where an applicant gets
an order/office by making misrepresentation or playing fraud
upon the competent Authority, such order cannot be sustained in
the eyes of law.”
xxxx xxxx xxxx xxxx
23. In United India Insurance Co. Ltd. v. Rajendra Singh &
Ors. [JT 2000 (3) SC 151: AIR 2000 SC 1165], this Court
observed that .Fraud and justice never dwell together. (fraus et
jus nunquam cohabitant) and it is a pristine maxim which has
never lost its temper over all these centuries.
24. The ratio laid down by this Court in various cases is that
dishonesty should not be permitted to bear the fruit and benefit
to the persons who played fraud or made misrepresentation and
in such circumstances the Court should not perpetuate the
fraud……
xxxx xxxx xxxx xxxx
26. An act of fraud on court is always viewed seriously. A
collusion or conspiracy with a view to deprive the rights of the
others in relation to a property would render the transaction void
ab initio. Fraud and deception are synonymous. Although in a
given case a deception may not amount to fraud, fraud is
anathema to all equitable principles and any affair tainted with
fraud cannot be perpetuated or saved by the application of any
equitable doctrine including res judicata. Fraud is proved when
it is shown that a false representation has been made (i) knowingly,
or (ii) without belief in its truth, or (iii) recklessly, careless
whether it be true or false. Suppression of a material document
would also amount to a fraud on the court.
28………Suppression of any material fact/document amounts to
a fraud on the court. Every court has an inherent power to recall
its own order obtained by fraud as the order so obtained is non
est.”
(emphasis supplied)
63. In the opinion of this Court, suppression of a material fact or
a material document by a litigant disqualifies such a litigant from obtaining
any relief. This rule has evolved out of the role of the Court to deter a
litigant from abusing the process of Court by deceiving it.
64. But the suppressed fact/document cannot be an irrelevant one.
It must be a material one in the sense that had it not been suppressed,
it would have had effect on the merits of the case. It must be a matter
which is material for the consideration of the Court, whatsoever decision
the Court may ultimately take.
65. Consequently, one in turn has to examine the scope and ambit
of the jurisdiction of the Company Court under Sections 391 to 394 of
the Act. Proviso to Section 391(2) of the Act states .provided that no
order sanctioning any compromise or arrangement shall be made by the
[Court] unless the [Court] is satisfied that the company or any other
person by whom an application has been made under sub-section (1) has
disclosed to the [Court], by affidavit or otherwise, all material facts
relating to the company, such as the latest financial position of the
company, the latest auditor's report on the accounts of the company, the
pendency of any investigation proceedings in relation to the company
under sections 235 to 351, and the like. In the opinion of this Court, the
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expressions ‘all material facts’ and ‘and the like’ mean all material facts
relating to affairs of the company.
66. In fact the Supreme Court in Miheer H. Mafatlal Vs. Mafatlal
Industries Ltd., (1997) 1 SCC 579 has outlined the parameters of the
scope and ambit of the jurisdiction of this Court as under:-
“29……In view of the aforesaid settled legal position, therefore,
the scope and ambit of the jurisdiction of the Company Court
has clearly got earmarked. The following broad contours of such
jurisdiction have emerged:
1. The sanctioning court has to see to it that all the
requisite statutory procedure for supporting such a scheme
has been complied with and that the requisite meetings as
contemplated by Section 391(1)(a) have been held.
2. That the scheme put up for sanction of the Court is
backed up by the requisite majority vote as required by
Section 391 sub-section (2).
3. That the meetings concerned of the creditors or
members or any class of them had the relevant material
to enable the voters to arrive at an informed decision for
approving the scheme in question. That the majority decision
of the concerned class of voters is just and fair to the
class as a whole so as to legitimately bind even the
dissenting members of that class.
4. That all necessary material indicated by Section
393(1)(a) is placed before the voters at the meetings
concerned as contemplated by Section 391 sub-section
(1).
5. That all the requisite material contemplated by the
proviso of sub-section (2) of Section 391 of the Act is
placed before the Court by the applicant concerned seeking
sanction for such a scheme and the Court gets satisfied
about the same.
6. That the proposed scheme of compromise and
arrangement is not found to be violative of any provision
of law and is not contrary to public policy. For ascertaining
the real purpose underlying the scheme with a view to be
satisfied on this aspect, the Court, if necessary, can pierce
the veil of apparent corporate purpose underlying the
scheme and can judiciously X-ray the same.
7. That the Company Court has also to satisfy itself that
members or class of members or creditors or class of
creditors, as the case may be, were acting bona fide and
in good faith and were not coercing the minority in order
to promote any interest adverse to that of the latter
comprising the same class whom they purported to
represent.
8. That the scheme as a whole is also found to be just,
fair and reasonable from the point of view of prudent men
of business taking a commercial decision beneficial to the
class represented by them for whom the scheme is meant.
9. Once the aforesaid broad parameters about the
requirements of a scheme for getting sanction of the Court
are found to have been met, the Court will have no further
jurisdiction to sit in appeal over the commercial wisdom
of the majority of the class of persons who with their
open eyes have given their approval to the scheme even
if in the view of the Court there would be a better scheme
for the company and its members or creditors for whom
the scheme is framed. The Court cannot refuse to sanction
such a scheme on that ground as it would otherwise
amount to the Court exercising appellate jurisdiction over
the scheme rather than its supervisory jurisdiction.
The aforesaid parameters of the scope and ambit of the jurisdiction
of the Company Court which is called upon to sanction a scheme
of compromise and arrangement are not exhaustive but only
broadly illustrative of the contours of the Court‘s jurisdiction.”
(emphasis supplied)
67. Keeping in view the aforesaid mandate of law as well as the
facts of the present case, it is apparent that non-placing of DOT’s letters
dated 7th January, 2010 and 18th January, 2010 was not an innocent act.
Non-filing of the aforesaid letters was a part of design to misdirect and
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mislead this Court as would be apparent from non-filing of Licences as
well as Merger Guidelines, 2008 and correspondence exchanged between
the parties. It is pertinent to mention that the primary business of both
the petitioner-companies pertain to telecommunication licences which
were not produced before this Court. In fact, both the petitioner-companies
did not bring to the notice of this Court that unlike any other case in the
past decided by this Court, the present Scheme of Arrangement would
result in transfer of some overlapping licences within the prohibited
period of three years. Since this Court and the Regional Director were
not aware of the prior permission and temporary prohibition contained in
the licence conditions and merger guidelines respectively, the petitioner-
companies reliance upon this Court’s observation with regard to post
merger sanction/approval of DOT is irrelevant. Consequently, withholding
of relevant and material documents like licences, merger guidelines and
DOT’s letters dated 7th January, 2010 and 18th January, 2010 was deliberate,
intentional and with a view to obtain an unfair advantage.
68. In the opinion of this Court it is also not necessary that there
should be direct proof of fraud, the same can be inferred from various
circumstances which are brought on record. Even if individual facts are
not able to prove a fraud, it would be sufficient if all the circumstances
taken together indicate a fraud.
69. The ‘design’ of the petitioner-companies is also apparent from
their subsequent conduct, i.e., after this Court had sanctioned the merger
scheme. It is pertinent to mention that before the amalgamation scheme
was sanctioned by this Court, Idea in its own affidavit had confirmed
that approval of DOT would be taken after approval of scheme of
amalgamation by this Court, but post merger the stand of Idea has been
that DOT has no further say in the matter and only a formal approval
of transfer of licences is required which DOT is obliged under law to
give. To illustrate, Idea vide its letter dated 31st May, 2010 addressed to
DOT stated ‘in this regard you may note that our Punjab Service area,
as stated in our application for 2.1 GHz auction, license held by Spice
Communications Limited stands amalgamated into Idea Cellular Limited
through a Court process as per provisions of the license agreements,
which process of amalgamation has been completed. The DoT has already
been informed about the same. Hence the Letter of Intent for Punjab too
may be has to be in favour of IDEA Cellular Limited.’ Further, Idea’s
Managing Director vide letter dated 21st December, 2010 addressed to
DOT stated ‘therefore we were surprised when we received a letter from
the DoT dated 7th January, 2010 saying the merger of the companies
cannot be permitted (18 months after our merger announcement and 16
months after our meeting with DoT – this letter came soon after we
confirmed the approval of Hon’ble High Court). The same was evidently
wrong and uncalled for, considering the advise for approval given earlier
and given that merger of companies is not in the DoT‘s domain, and was
appropriately responded by us. In fact on the contrary, upon us informing
DoT about completion of the Court process of amalgamation, the DoT
ought to have issued formal orders forthwith.’ Also, Idea in its petition
bearing No. 143/2011 filed before TDSAT stated ‘once the merger is
approved it mandates the DoT to give its approval as it does not leave
the DoT with any discretion to refuse the same.’ Idea in its application
for withdrawal of demerger application being Co. Appl.(M) 98/2009
stated ‘in light of the aforesaid sanctioning of the Scheme of Amalgamation,
the application filed by Spice before this Hon‘ble Court for the proposed
demerger of its overlapping UASLs would not be maintainable as Spice
has already merged into the Applicant Company and the overlapping
UASLs of Spice now vest in the Applicant Company by virtue of the
Scheme of Amalgamation.’
70. In any event, even if this Court were not to accept the plea of
dishonest intent on the part of petitioner-companies, this Court cannot
lose sight of the fact that as the sanctioned scheme is binding on all
shareholders, creditors of petitioner-companies, the Court is obliged to
examine the Scheme in its proper perspective together with its various
manifestations and ramifications with a view to finding out whether the
scheme is fair, just and reasonable to the members concerned and is not
contrary to any law or public policy. Though the expression ‘public
policy’ is not defined in the Act, it connotes some matter which concerns
the public good and public interest. Thus, the question that arises is
whether the petitioners had disclosed sufficient information to this Court
so as to enable it to arrive at an informed decision, that means, whether
the information supplied was sufficient and whether the real issue was
flagged before Court and whether all relevant documents were on record
for the Court to arrive at a just decision. (See Sesa Industries Limited
Vs. Krishna H. Bajaj & Ors., (2011) 3 SCC 218).
Indian Law Reports (Delhi) ILR (2011) VI Delhi511 512M/s. Spice Communications Limited & Anr. (Manmohan, J.)
71. Even if this Court examines the present case from this narrow
and limited perspective, this Court finds that non-filing of licences as well
as merger guidelines and correspondence exchanged between the parties
amounts to non-production of requisite material as contemplated under
the proviso to Sub-section 2 of Section 391 of the Act and further that
sufficient information was not disclosed to this Court so as to enable it
to arrive at an informed decision. Consequently, this Court is of the view
that there has been suppression of material and relevant documents from
this Court.
72. Also, just because petitioner-companies state that DOT was
constantly kept informed of all developments, it cannot be said that there
is no suppression from this Court.
73. Dr. Singhvi’s submission that DOT has indulged in suppression
is misconceived on facts. In fact, DOT has brought to surface the fraud
played by the petitioner-companies upon this Court by non-filing of
Licences, Merger Guidelines, 2008 and the correspondence exchanged
between the parties.
74. The petitioner-companies’ challenge to the locus of DOT to file
the present applications is also untenable in law. DOT is an interested/
necessary party as it is both a Licensor and a Regulator. It is pertinent
to mention that at the second motion stage in any scheme of arrangement,
the Company Court invites objections from the public at large, if any, to
the proposed scheme and the petitioner-companies’ are obliged in law to
disclose to this Court objection if any received by them to the Scheme
of Arrangement.
75. In any event, in the present case, this Court is of the opinion
that Mr. Chandhiok’s submission that grave prejudice has been caused
to DOT by approval of sanction of amalgamation without DOT’s prior
approval, is well founded as sanction is in contravention of licence
conditions and merger guidelines. In fact, the Supreme Court in S.K.
Gupta & Anr. Vs. K.P. Jain & Anr., (1979) 3 SCC 54 has held as
under:
“16………….The Court has to reach an affirmative conclusion
before acting under Section 392(2) that the compromise and/or
arrangement cannot be worked satisfactorily with or without
modification [see J.K. (Bombay) P. Ltd.) supra]. It follows as
a corollary that if the compromise or arrangement can be worked
as it is or by making modifications, the Court will have no power
to wind up the company under Section 392(2). Now, if the
arrangement or compromise can be worked with or without
modification, the Court must undertake the exercise to find out
what modifications are necessary to make the compromise or
arrangement workable and that it can do so on its own motion
or on the application of any person interested in the affairs of the
company. If such be the power conferred on the Court, it is
difficult to entertain the submission that an application for
directions or modification cannot be entertained except when
made by a member or creditor. It would whittle down the power
of the Court in that it cannot do so on its own motion.”
(emphasis supplied)
76. It is settled law that in judicial proceedings, once a fraud is
proved, all advantages gained by playing fraud can be taken away. In
such an eventuality the questions of non-executing of statutory remedies
or statutory bars like res judicata are not attracted. Suppression of any
material fact/document amounts to a fraud on the Court. Every Court has
an inherent power to recall its own order obtained by fraud as the order
so obtained is non est. [See Meghmala and Ors. Vs. G. Narasimha
Reddy and Ors., (2010) 8 SCC 383, A.V. Papayya Sastry and Ors.
vs. ˇGovernment of A.P. and Ors., (2007) 4 SCC 221]. In fact, the
Supreme Court in S.P. Chengalvaraya Naidu (supra) has held as under:
“1. “Fraud avoids all judicial acts, ecclesiastical or temporal”
observed Chief Justice Edward Coke of England about three
centuries ago. It is the settled proposition of law that a judgment
or decree obtained by playing fraud on the court is a nullity and
non est in the eyes of law. Such a judgment/decree — by the
first court or by the highest court — has to be treated as a
nullity by every court, whether superior or inferior. It can be
challenged in any court even in collateral proceedings.”
77. However, the present applications for recall of sanction order
dated 5th February, 2010 have been filed after a delay of thirteen months.
There is no plausible explanation for the delay except for the submission
that Government’s decisions are ‘proverbially slow’.
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78. In fact, today, the ‘situation at the ground’ is that Spice has lost
its entity after having been dissolved without following the process of
winding up and all its employees have become employees of Idea. The
assets and liabilities of Spice have got vested in Idea. The shares of
erstwhile Spice have also been delisted from the relevant stock exchange.
Further, some of the shareholders of erstwhile Spice, who had received
the shares of Idea, would have also transferred the same to third parties.
Consequently, today it is not possible for this Court to ‘unscramble the
eggs’ by recalling in its entirety the order dated 5th February, 2010
sanctioning the Scheme of Amalgamation.
79. It is also pertinent to mention that Section 392 of the Act vests
power with this Court to modify the scheme even after it has been
sanctioned and the said modification can be done either suo moto by the
Court or at the instance of any person who is interested in the affairs of
the company.
80. Even, the Supreme Court in Central Bank of India Vs.
Ambalal Sarabhai Enterprises Ltd. (supra) observed that due to passage
of time it would not be equitable at a belated stage to set aside the
scheme in its entirety. The Supreme Court in the said case decided to
maintain the order sanctioning the scheme with some additional conditions.
81. Consequently, to bring the sanctioned scheme, in the present
case, in conformity with the Licence and Merger Guidelines, 2008 as
well as in view of the fact that simultaneous demerger scheme has been
withdrawn, it is directed that notwithstanding anything stated in the
sanctioned scheme (in particular paras 5.2 as well as 10.2) and/or in the
order dated 5th February, 2010, the six overlapping licences of the
Transferor Company/Spice would not stand transferred or vested with
Transferee Company/Idea till prior permission of DOT is obtained. In
fact, till permission of DOT is granted, the overlapping licences of Spice
shall forthwith stand transferred/vested with the Licensor, i.e., DOT.
The spectrum allocated for such overlapping licences shall also forthwith
revert back to DOT. In the event DOT refuses or grants conditional
approval to transfer of licences, Idea would be entitled to challenge the
same before TDSAT who would decide the same in accordance with law
after hearing both the parties. Since the Transferee Company has used
the overlapping licences without any prior permission of DOT from 5th
February, 2010 till date in contravention of the Licence and Merger
Guidelines, it is directed that it shall be open to DOT to pass any order
for such breach. Needless to say, any order passed by DOT can be
challenged by Idea before any competent court or tribunal. To avoid
inconvenience to public at large, DOT is directed to ensure that cell
phone customers of the two overlapping licence areas namely, Punjab
and Karnataka are provided regular and uninterrupted services like in the
past.
82. Moreover, as simultaneous demerger scheme has been
withdrawn, paragraphs 2.4, 2.13, 2.14, 2.19, 17.3 as well as the last two
sentences in para 1.7 of the sanctioned scheme are deleted.
83. To meet the ends of justice, this Court is also of the view that
costs should be imposed on Idea for not bringing to the notice of this
Court the rejection letters dated 7th January, 2010 and 18th January, 2010
issued by DOT and for not placing on record relevant and material
documents like Licence, Merger Guidelines and correspondence exchanged
between the parties. In the opinion of this Court, the suppression of
aforesaid documents was not an innocent act especially in view of
petitioners’ own understanding of licences and merger guidelines as
reflected in the contemporaneous correspondences. Accordingly, this
Court, keeping in view the nature of petitioners’ business, imposes costs
of Rupees One Crore to be paid by Idea to DOT within six weeks. It
is further directed that the Ministry of Corporate Affairs shall conduct a
study with regard to special statutes, guidelines and licences applicable
to super specialised companies like the petitioners and suggest remedial
measures to ensure that no party can obtain sanction of a scheme of
arrangement without placing on record material and relevant documents
before the Court. In fact, both the Ministry and DOT must suggest
remedial measures by which suppression of facts and documents can be
detected at the earliest stage in a scheme filed under Sections 391 to 394
of the Act including appointment of more professionals like Chartered
Accountants, Company Secretaries and Cost Accountants in the offices
of Regional Director and Official Liquidator.
84. With the aforesaid observations, the present applications stand
disposed of.
Indian Law Reports (Delhi) ILR (2011) VI Delhi515 516Bijay v. The State (G.N.C.T. of Delhi) (Suresh Kait, J.)
ILR (2011) VI DELHI 515
CRL. A
BIJAY ....APPELLANT
VERSUS
STATE (G.N.C.T. OF DELHI) ....RESPONDENT
(SURESH KAIT, J.)
CRL. A. NO. : 700/2005 DATE OF DECISION: 05.07.2011
Narcotic Drugs and Psychotropic Substances Act,
1985—Sections 20 & 50—As per prosecution, PW10
along with PW6 and PW7 patrolling on platform at Old
Delhi Railway Station—Secret information received by
PW10 that one person was sitting near the staircase
of flyover with Ganja in iron box—Raiding party
constituted and accused nabbed—Notice u/s 50 NDPS
Act given to accused—30 kg Ganja recovered from
iron box of accused out of which 1 kg. taken as
sample—Trial Court convicted accused under Section
20—Held, notice under Section 50 NDPS not properly
given as Investigating Authority was supposed to give
accused the option of a search either before a
Gazetted Officers or a Magistrate which was not done
in present case—FSL Form never sent to FSL Malviya
Nagar and not proved in Court—Since FSL Form not
sent with Samples, samples doubtful—Sample Ganja
taken of 1 kg whereas weight was found to be 910.7
gms.—No explanation as to how weight of Ganja
reduced which casts doubt on sample—IO interpolated
Malkhana Register—FSL form not sent with samples—
After sealing samples, seal not handed over to
independent person but kept with IO—Prosecution
case doubtful—Accused acquitted—Appeal Allowed.
[Ad Ch]
APPEARANCES:
FOR THE APPELLANT : Mr. Rajesh Mahajan, Advocate
(Amicus Curiae).
FOR THE RESPONDENT : Mr. Arvind K. Gupta, APP.
CASES REFERRED TO:
1. Balban Singh vs. State, decided on 05.05.2009.
2. Rajesh Jagdambha Avasthi vs. State of Goa (2005) 9
SCC 773.
3. State of Gujarat vs. Ismail U Haji Patel (2003) 12 SCC
29.
4. Radha Kishan vs. State 87 (2000) DLT 106.
5. Satinder Singh vs. State (NCT of Delhi) 69 (1997) DLT
577.
6. Valsala vs. State of Kerala 1993 (2) Crimes 267 (SC).
RESULT: Appeal Allowed.
SURESH KAIT, J. (Oral)
1. The instant appeal is filed by the appellant against the judgment
dated 22.03.2005 whereby the appellant was convicted under Section 20
of NDPS Act and by order dated 06.04.2005, the appellant was sentenced
to undergo RI for 10 years and to pay a fine of ‘1 lac. In default of
payment of fine, the convict shall further undergo RI for 6 months. The
benefit of Section 428 Cr.P.C was also given.
2. In spite of several efforts made, this Court is handicapped since
the Trial Court are not available. Vide order dated 05.07.2010, the registry
had been directed by this Court to reconstruct the records of the Trial
Court. In further order dated 10.09.2010, registry was directed to place
on record whatever papers it has received in the matter during
reconstruction of file. Vide order dated 22.09.2010, learned counsel for
the accused at Trial Court was directed to be contacted but till date
nothing concrete has been found in the matter. Therefore, in the absence
of complete records of the Trial Court, I am proceeding with the matter.
3. Mr.Rajesh Mahajan, learned counsel who has been appointed as
amicus in this matter by Delhi High Court Legal Services Committee is
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also handicapped in the absence of the complete records of the Trial
Court. However, he is ready with the case on merits.
4. The case of the prosecution in brief is that on 03.03.2003 PW-
10 SI Braham Pal Singh along with PW-6 HC Ayaj Khan and PW-7 HC
Ram Avtar was on patrolling and present at platform No.3-5 Old Delhi
Railway Station. At about 09:10 pm secret information was received by
the SI that one person was sitting on black colour iron box near staircase
of flyover and Ganja was inside the said box.
5. This information was conveyed to 4/5 passerby by PW-10 SI
Braham Pal Singh, they were requested to join the investigation but they
refused and left without disclosing their names and addresses. A raiding
party consisting of police officials was organized and they proceeded
towards the place where accused was sitting on a black colour iron box
and the secret informer pointed towards the accused. On seeing the
police the accused tried to slip away with the iron box, but he was
stopped by the PW-10 SI Braham Pal Singh.
6. The said SI conveyed the secret information to the accused and
he again requested public persons to join them. On his instance one
public person by the name of Khalil Khan PW-5 joined the police party.
In the meantime, PW- 4 Insp. Jai Kishan, SHO police station RMD also
reached the spot.
7. SI Braham Pal PW-10 Singh told the accused that search of the
iron box and of his person is to be conducted and it is his legal right that
search of the iron box can be conducted before a magistrate or a gazetted
officer or they can be called at the spot. Accordingly, notice under
Section 50 of NDPS Act was given to the accused. Accused declined the
offer of search before a magistrate or a gazetted officer, accordingly, his
reply was noted down on the notice. SI also offered the search of the
members of raiding party to the accused but he declined. Even then PW-
10 SI Braham Pal Singh gave his search to PW-5 Khalil Khan but no
contraband was recovered from his search.
8. PW-10 SI Braham Pal Singh directed the accused to take out the
keys of the box from the pocket of his pant and opened the box. On
opening, Ganja was found inside the said box. The Ganja was taken out
of the box and on weighing it came out to be 30 kgs., out of which 1
kg. was separated as sample. After completing the formalities under the
NDPS Act, the said SI prepared the ruqqa and sent the same to the police
station for registration of the case.
9. Accordingly, FIR bearing no. 106/2003 was registered at police
station RMD, New Delhi. After completion of investigation, challan under
Section 20/61/85 NDPS Act was prepared and filed in the court.
10. The Trial Court framed the charged against the accused vide
order dated 06.08.2003 under Section 20 NDPS Act to which accused
pleaded not guilty and claimed trial.
11. The prosecution has examined as many as 11 witnesses but the
accused has not produced any defence witnesses in spite of opportunity
given.
12. Since there is no record of evidences on record, therefore,
there is no purpose to discuss the deposition of the witnesses.
13. Learned Amicus Curiae submits that under Section 50 of NDPS
Act, notice had to be issued in advance since on the secret information,
the police had to search the person of the accused and his belongings.
However, in this case Section 50 of NDPS Act has not been fully
complied with. Though the police has issued notice thereafter, as alleged
he declined the same.
14. The Trial Court has come to the conclusion that notice under
Section 50 of NDPS Act was not required since the recovery was not
effected from the person of the accused but was effected from the iron
box which he was carrying.
15. Further, learned Amicus Curiae points out the para 20 of the
judgement wherein PW-5 Khalil Khan, an independent witness who
participated in search and recovery proceedings has stated that the police
officials were requesting the public persons to join them whereby PW-
5 willingly joined the police officials. The police officials also told PW-
5 that they have received information about Ganja in an iron box of black
colour at the spot. He further pointed out that some documents were also
given to the accused in writing and police officials also told the accused
that if he wants, a gazetted officer can be called at the spot to which the
accused declined the said offer.
Indian Law Reports (Delhi) ILR (2011) VI Delhi519 520Bijay v. The State (G.N.C.T. of Delhi) (Suresh Kait, J.)
16. Learned Amicus Curiae further submits that, the police officials
were duty bound as per statute to give absolute right to the accused i.e.
either to call the magistrate or a gazetted officer but in the present case,
it was just a mere formality as the person apprehended was only given
the option of gazetted officer. The other option is missing as per the
deposition of PW-5, Khalil Khan, therefore, the statutory provisions were
not complied in its letter and spirit.
17. PW-4 Insp. Jai Kishan and SHO concerned reached at the spot
and joined the investigation. They found 30 kgs. of Ganja from the spot
out of which 1 kg. was separated for sample purpose. The same was
sealed with ‘BPS’ and ‘JK’ and sent to the malkhana. The report as
required under Section 57 of the NDPS Act was prepared and sent to
the ACP. It is submitted by learned counsel that vide letter dated 17.04.2003,
the sample was sent to the FSL, Malviya Nagar, New Delhi, whereas,
the sample was deposited on 21.04.2003 to the FSL.
18. Learned Amicus Curiae has drawn the attention of this Court
towards the FSL report dated 03.06.2003 in respect of receipt of parcel
dated 21.04.2003 containing one cloth parcel sealed with the seals of
‘JK’ and ‘BPS’. It is found to contain exhibit-‘1’ kept in a polythene bag.
(Exhibit-‘1’) Dark greenish brown coloured dried plant material consisting
of dried leaves, seeds and twigs stated to be ‘Ganja’ weight approx.
910.7 gms. with polythene.). On chemical examination, exhibit-‘1’ was
found to contain Tetrahydrocannabinol which is main constituents of
Cannabis Plant. However, as per the report dated 03.06.2003 in respect
of receipt of parcel dated 12.05.2003, the weight of exhibit-‘1’ was
found 619.0 gms of dried, greenish, brownish, flowery vegetative material
along with seeds described as ‘Ganja’.
19. Learned Amicus Curiae has pointed out that initially the sample
was taken of 1 kg. of Ganja, whereas, the weight reduced to 910.7 gms.
and there is no explanation given by the prosecution as to how the weight
of the Ganja was reduced to this extent. It creates suspicion whether the
FSL report is on the same sample as was sent by the police.
20. Learned Amicus Curiae further submits that the ‘FSL Form’
was to be sent alongwith the sealed parcel of the sample of Ganja.
Further he states that there was some interpolation in the Malkhana
Register which is called as ‘‘Store Room Register’’ (part-I) against entry
no. 91 wherein he noted that the words ‘‘And FSL Form’’ were
subsequently added. Therefore, it proves that the FSL Form was not sent
alongwith the sample taken. The Road Certificate dated 21.04.2003 also
does not indicate any ‘FSL Form’. Therefore, it further proves that no
FSL Form was sent along with sealed sample.
21. Learned Amicus Curiae further submits that while passing the
judgment, learned Trial Court has not considered the deposition in cross-
examination. He submits that in the instant case, the Trial Judge has not
discussed anywhere throughout the judgment about the cross-examination
being done by the counsel for the accused. Though the judgment only
indicates that there was some cross-examination being done by the learned
counsel for the accused.
22. Learned Amicus Curiae had relied upon the judgment of Radha
Kishan vs. State 87 (2000) DLT 106 wherein in para 26 it was discussed
that it is the normal procedure that when the incriminating articles are
seized and are required to be sent to the CFSL, those articles are
immediately sealed and deposited in malkhana at the police station till
they are taken out and sent to the laboratory. However, in the instant
case, this was not done. Contemporaneously with seizure and sealing of
such articles, impression of seal used on sealed articles is put on a form,
commonly called the ‘CFSL Form’. This is being done so because at the
time of analysis of sealed parcels in laboratory, the analyst concerned is
able to tally the seal impressions on sealed packets with those appearing
on the ‘CFSL Form’ in order to rule out any possibility of tampering of
seals or sealed packets after seizure, anywhere or in-transit, till receipt
in laboratory. This is a safeguard to an accused to ensure that no tampering
has been done.
23. In para 29 of this judgment of Radha Kishan (supra), it was
observed that in a large number of NDPS cases the prosecution has to
establish that the ‘CFSL Form’ should be deposited in malkhana and
thereafter be sent to the CFSL along with the seized sample; otherwise
there is a strong possibility of tampering with the seals of samples sent
to CFSL.
24. Further, learned Amicus Curiae relied upon the judgement of
Mool Chand vs. State 49 (1993) DLT 649 wherein in para 3, the main
contention on behalf of the appellant was that the ‘CFSL Form’ although
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allegedly filled up at the spot, neither was deposited in the malkhana nor
was it sent to the CFSL alongwith the sample and thus the very recovery
of the opium becomes doubtful.
In the present case also, learned counsel has taken the same stand
that the ‘FSL Form’ was neither sent nor produced or proved in the
Court.
25. Learned Amicus Curiae further points out that the sample on
17.04.2003 was made ready to deposit at FSL, Malviya Nagar, New
Delhi, however, the sample reached there on 21.04.2003 as indicates by
the Road Certificate dated 21.04.2003. This fact has been proved by
PW-1, HC Kunji Lal. This gap of period creates suspicion on the samples,
whether it remained intact or tampered with. Even as per the chargesheet,
Ex. PW- the sample was sent on 17.04.2003 vide R/C No. 12/21 to FSL
Malviya Nagar, New Delhi.
26. On the other hand, learned counsel for the respondent submits
that the ‘FSL Form’ is not to be proved but only the report of FSL has
to be proved, therefore, the issue in the present case on the FSL Form
has no relevance at all. Therefore, the argument of learned Amicus
Curiae has to be discarded.
27. Learned counsel for the respondent has further pointed out that
it is recorded in Store Room Register (part-I) that the result of FSL was
deposited at malkhana on 06.06.2003, after the report came back alongwith
the ‘CFSL Form’.
28. On perusal of the said store room Register, I found that there
is no mention of ‘FSL Form’ and therefore, there is no force in the
statement of learned counsel for the respondent. This issue has already
been dealt in the case of Balban Singh v. State, decided on 05.05.2009
in Criminal Appeal No. 921/2005, in which the Court has observed on
the issues of inter-collision, variation, delay, interpolation as under:
8. Mr. Mahajan is also right in pointing out that in the road
certificate (Exhibit PW 3/B at page 107 of the trial court record),
the words ‘‘& F.S.L. form’’ appear to have been added later to
the line ‘‘one pulanda of cloth sealed with seal of LSY & HSY
containing 1 kg ganja.’’ The endorsement on its reverse signed
by Constable Jitender Singh reads: ‘‘Retained one sealed cloth
parcel in chemistry (sic chemical) division.’’ There is no mention
of any FSL form. The date under the signature of the person
preparing the Road certificate reads 18th September 2002 whereas
the endorsement of the person receiving it is dated 13th September
2002. This is yet another unexplained anomaly. In the cross-
examination of PW-3, a suggestion was put that no FSL form
was prepared and sent with the sample, which was of course
denied by the witness. These factors taken collectively lead to
the conclusion that the prosecution has failed to prove the
preparation and dispatch of the FSL form with the sample for
testing.’’ Para 9 and 10 of the judgment in the case of Balban
Singh (supra) deals on the issue of the importance of ensuring
the FSL form duly signed, which reads as under:-
9. In Radha Kishan v. State (supra), this Court has
explained the importance of ensuring that the FSL form
is duly sent with the sample for testing. IN para 26 of the
said judgment, it was explained:
‘‘26. It is normal procedure that when the incriminating
articles are seized and are required to be sent to the
Central forensic Science laboratory, those articles are
immediately sealed and deposited at the Malkhana at the
police station till they are taken out and sent to the
Laboratory. In the instant case, this was not done.
Contemporaneously with seizure and sealing of such
articles, impression of seal used on the seal is put on a
form, commonly called, the CFSL form. This is so done
because at the time of analysis of sealed packets in the
laboratory, the analyst concerned is ablse to tally seal
impressions on sealed packets with those appearing on
the CFSL form in order to rule out any possibility of
tampering of tampering of seals on sealed packets after
seizure anywhere or in transit till receipt in laboratory.
The importance of the CFSL form thus cannot be
overemphasized because this document provides a
valuable safeguard to an accused to ensure that no
tampering has been done during intervening period.
The CFSL form is a document or forwarding note
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accompanying a sample sent by the police to the Forensic
Science Laboratory. Such a form contains the nature of
the crime, list of samples being sent for examination,
nature of examination required and specimen of the seal/
seals affixed on the exhibit besides particulars of the
case/ police station.’’ (emphasis supplied)
10. In Radha Kishan, after referring to the Delhi High Court
Rules, Part III Chapter 18 B, regarding proper proof of custody
of articles, it was held by this Court that the evidence of
preparation and dispatch of the FSL form was critical for ensuring
that the sealed sample was kept intact in the police malkhana. An
adverse inference would be drawn against the prosecution in the
event the FSL form was not proved to have been prepared and
dispatched. To the same effect are the judgments in Moolchand
and Phool Kumar. Further, it has been held in Satinder Singh
v. State (NCT of Delhi) 69 (1997) DLT 577, that oral evidence
which is contrary to the documentary evidence ought not to be
relied upon. In the instant case, despite the prosecution witnesses
asserting that the FSL form was prepared, not only is the FSL
form unavailable on the record but the photocopies of the store
room register and road certificate throw considerable doubts
whether the FSL form was in fact prepared and dispatched.
These documents are unreliable. For the above reasons, it is held
that in the instant case the non-compliance with the mandatory
requirement of preparation and dispatch of the FSL form with
the sample sent for testing is fatal to the case of the prosecution.
Para 11 of the said judgment deals with the issue of seal to be handed
over to an independent witness which reads as under:
11. It was next submitted by Mr.Mahajan that where there is an
independent witness to the arrest and search, in the person of
PW6, the seal used by the police officer to seal the pulandas
containing the seized material and sample must be handed over
to such the independent witness. On the contrary, Head Constable
Ayaj Khan PW-4 states that ‘‘seal after use was handed over to
me ............ I took the rukka to Police Station along with from
box, sealed parcel, form FSL and copy of seizure memo.’’ SI
Lal Sahib also confirms that ‘‘seal after use is handed over to SI
Ayaj Khan.’’ The law in this regard has been explained by the
Supreme Court in Rajesh Jagdambha Avasthi v. State of Goa
(2005) 9 SCC 773 where in para 15, it was observed: (SCC, p.
778) ‘‘15. This is not all. We find from the evidence of PW-4
that he had taken the seal from PSI Thorat and after preparing
the seizure report, panchnama etc. he carried both the packets
to the police station and handed over the packets as well as the
seal to Inspector Yadav. According to him on the next day, he
took back the packets from the police station and sent them to
PW-3 Manohar Joshi, Scientific Assistant in the Crime Branch,
who forwarded the same to PW-1 for chemical analysis. In
these circumstances there is justification for the argument
that since the seal as well as the packets were in the custody
of the same person, there was every possibility of the seized
substance being tampered with, and that is the only
hypothesis on which the discrepancy in weight can be
explained. The least that can be said in the facts of the case
is that there is serious doubt about the truthfulness of the
prosecution case.’’ (emphasis supplied)
Para 13 of the judgment deals with the issue of the sample being seen
late for deciding to FSL and reads as under:-
13. The next submission concerned the delay of over a month
and a half in sending the seized sample for testing to the FSL.
The seizure was made on 22nd July 2002 and the sample was
sent for testing on 13th September 2002. The Supreme Court
has in Valsala v. State of Kerala 1993 (2) Crimes 267 (SC)
and later in State of Gujarat v. Ismail U Haji Patel (2003) 12
SCC 29 held that the delay per se would not be material. What
had to be established was that the seized articles were in proper
custody and in the proper form and that the sample sent to the
Chemical Analyst for testing was the same that was seized.
Para 15 of the Judgment deals with the issue of seal to be handed over
to an independent witness, and reads as under:-
15. The further submission was that PW-6 Ramesh Chand was
in fact a stock witness for the prosecution. It is seen from the
cross-examination of PW-6 that ‘‘he had appeared as a witness
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once, in a narcotics case.’’ He further stated: ‘‘he appeared as
witness in some other drug case about one year back.’’ In
Rajesh Jagdambha Avasthi, among other grounds, the acquittal
of the accused was based on the ground that one of the panch
witnesses was a stock witness. It was observed (SCC, p. 778)
‘‘16. There is one other aspect of the matter. PW-2, the
panch witness associated in this case appears to be a
stock witness. The other panch witness has not been
examined. PW-2 admitted in very clear terms that he was
earlier associated in two other cases under the NDPS Act
as panch witness. In both those cases, PSI Thorat was
the Investigating Officer. On 14.12.1994 he had been
summoned by PSI Thorat and acted as a panch witness
in the case against P.C. Kulbi, who as noticed earlier
disclosed the complicity of the appellant. Thereafter, in
the instant case, he was requested by PW-4 to act as a
panch witness. It appears that PSI Thorat was also
associated with this case as he was present with PW-4
when PC Kulbi was apprehended and thereafter when the
appellant herein was apprehended and searched at the
instance of the aforesaid Kulbi.’’
30. At the end, learned counsel for the respondent feels handicapped
in the absence of the Trial Court records, therefore, he has not argued
further.
31. I have heard both the parties. The notice under Section 50 of
the NDPS Act was not properly given as the Investigating Authority was
supposed to give him both the option of a Gazetted Officer or a Magistrate
as is provided in the act which the Investigating Authority has failed in
the instant case which is supported by PW5 Khalil Khan who stated that
police official told the accused that if he wants a gazetted officer, can
be called at the spot to which the accused declined the said offer.
32. As regard the question of ‘FSL Form’ is concerned, it has been
proved from the above discussion that it was never sent to the FSL
Malviya Nagar and not proved in the Court also. By not sending the FSL
Form along with the samples make the samples doubtful.
33. The sample of Ganja was taken of 1 Kg, wheras the weight
was found to be 910.7 grams and there is no explanation as to how the
weight of the Ganja was reduced, this also creates doubt on the sample.
The Investigating Officer interpolated Malkhana Register and mentioned
and ‘FSL Form’ which proves that the Police Officer never sent the FSL
Form along with samples.
34. After sealing the samples, the seal was not handed over to an
independent person, rather he kept with him only, which also creates
doubt on the sample whether the samples, were intact and not tempered
with.
35. I have perused the nominal roll dated 04.02.2010. The appellant
has already undergone 6 years 10 months and 29 days and the unexpired
portion of sentence is only 3 years 1 months and one day (IFP).
36. Putting the curtain down, in the above said facts and
circumstances of the case, the judgment dated 22.03.2005 and the order
dated 06.04.2005, whereby he was sentenced to RI for ten years and to
pay a fine of ‘1 Lac, is set aside.
37. Criminal Appeal No.700/2005 is accordingly allowed and the
appellant is acquitted from all the charges and he shall be released
forthwith. His personal Bond and surety bond are cancelled.
Indian Law Reports (Delhi) ILR (2011) VI Delhi527 528Swaran Singh v. State (Mukta Gupta, J.)
ILR (2011) VI DELHI 527
CRL. APPEAL
SWARAN SINGH ....APPELLANT
VERSUS
STATE ....RESPONDENT
(MUKTA GUPTA, J.)
CRL. APPEAL NO. : 693/2001 DATE OF DECISION: 05.07.2011
Indian Penal Code, 1860—Section 398—As per
prosecution, accused with 3-4 persons came to house
of complainant to commit dacoity—Accused armed with
countrymade pistol—Other associates also armed with
weapons—Accused with associates forcibly entered
house of complainant—Complainant raised alarm—His
friend PW2 sitting inside came out—Appellant fired
shot and tried to flee—Appellant caught by complainant
and PW2 with pistol while others escaped—Police
recovered one countrymade pistol and five live
cartridges from accused besides one empty cartridge
in the barrel—Co-accused arrested subsequently—
Trial Court convicted accused for offence u/s 398—
Held, In statement of PW3 complainant, nowhere alleged
that appellant and co-accused attempted to commit
robbery—PW2 only stated that when accused along
with others entered, they shouted ‘Loot Lo Mar Do’—
Accused came with intention to commit robbery which
did not fructify into an attempt and was at best
preparation—Basic ingredients of 398 not made out—
Accused acquitted—Appeal Allowed.
[Ad Ch]
APPEARANCES:
FOR THE APPELLANT : Mr. B. Deva Sekhar, Amicus Curiae.
FOR THE RESPONDENT : Mr. Pawan Bahl, APP for the State
with SO Gurjeev Singh, P.S.
Ambedkar Nagar.
CASE REFERRED TO:
1. Relying on Chinnadurai vs. State of Tamil Nadu, AIR
1996 SC 546.
RESULT: Appeal Allowed.
MUKTA GUPTA, J.
1. By this appeal, the Appellant lays a challenge to the judgment
dated 7th August, 2001 convicting him for offence punishable under
Section 398 IPC and order dated 3rd September, 2001 awarding the
sentence of Rigorous Imprisonment for seven years.
2. Briefly the prosecution case is that on 7th February, 1996, accused
Swaran Singh accompanied by 3/4 associates came to the house of Ram
Niwas at Sangam Vihar with an intention to commit dacoity. They were
armed with weapons and the Appellant was having one country-made
pistol. On reaching the house of Ram Niwas they knocked the door and
when Ram Niwas opposed their entry in his house all the accused persons
on the instructions of Appellant forcibly entered into the house of Ram
Niwas. He raised an alarm and his friend Dharambir who was sitting
inside the house came out and the Appellant fired a shot. Then the
Appellant along with his associates tried to flee away but after chasing,
the Appellant was caught by the Complainant and Dharambir with his
pistol while the others managed to escape. Police arrived at the spot and
from the Appellant one country-made pistol and five live cartridges were
recovered. Also one empty cartridge was found in the barrel of the katta
and all the articles were seized and sealed. Thereafter on 10th October,
1996 co-accused Kanwar Pal Singh was arrested in some other case and
in his disclosure statement he disclosed about his involvement in the
present offence. Investigation was conducted and a charge-sheet was
filed. After recording the statement of witnesses and the accused under
Section 313 Cr.P.C. the learned Trial Judge held as above.
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3. Learned counsel for the Appellant contends that the Appellant is
a handicapped person. There are many lacunas in the prosecution version
and statements of the alleged eye-witnesses i.e. PW2 and PW3 are full
of contradictions. There is no recovery of alleged robbed articles from
the Appellant. The witnesses on the basis of whose testimony conviction
has been based are interested witnesses and no public witness has been
examined by the prosecution despite the fact that it is stated by the
witnesses that on raising an alarm public got collected at the house of
the Complainant. The co-accused, who were charged for the said offence,
have been given the benefit of doubt and acquitted by the learned Trial
Judge. However, the benefit of doubt has not been extended to the
Appellant. The Appellant claims that he be acquitted on parity. It is
further stated that no shell has been recovered, no finger prints or chance
prints have been picked up from the place of occurrence. No photographs
of the crime scene have been taken. Relying on Chinnadurai v. State
of Tamil Nadu, AIR 1996 SC 546, it is contended that since no attempt
of robbery has been proved, the Appellant cannot be convicted for an
offence punishable under Section 398 IPC. The entire prosecution story
is full of contradictions and improvements and hence the Appellant is
entitled to be acquitted.
4. Per contra, learned APP for the State contends that the prosecution
has established its case beyond reasonable doubt. The Appellant was
apprehended at the spot with the katta and five live cartridges in the
barrel and one empty cartridge case which was used at the time of
commission of offence. The version of PW2 and PW3 who have deposed
about the Appellant firing a gun shot is corroborated by his apprehension
and recovery on the spot. The Appellant cannot claim parity with co-
accused Kanwar Pal as no overt act is attributed to the co-accused by
the witnesses. It is, thus, prayed that the appeal be dismissed being
devoid of merit.
5. I have heard learned counsels for the parties. The moot question
involved in the present case is whether the ingredients of Section 398
IPC are satisfied in the present case. PW 2 Dharambir in his testimony
has stated that on 7th February, 1996 when he was present at the house
of Ram Niwas, 2/3 persons came and knocked at the door of the house
of Ram Niwas. On Ram Niwas opening the door, those persons shouted
‘Loot Lo, Mar Do’ and a scuffle ensued. He rushed where Ram Niwas
was standing but he could not see the other persons while Ram Niwas
caught hold of accused Swaran Singh, he fired a shot from the revolver
and the neighbours gathered. The shot did not hit anyone. Somebody
informed the police at 100 number and police came at the spot and
accused was handed over to the police. PW 3 Ram Niwas in his testimony
has deposed that on 7th February, 1996, while he was present at his
house, there was a knock at the door of his house. He opened the door
and found 4/5 persons present there. Three of them came inside the
room and one of them pointed out a katta on his chest on his right side.
He raised alarm and Dharambir rushed to his help. He caught hold of the
person who was having katta in his hand but that person fired a shot
from the katta and the shot did not hit anyone. The persons who attacked
ran away from the spot. He along with Dharambir chased those persons
and after a distance of 10/15 steps, the Appellant was apprehended and
katta was snatched from him. Appellant was given beating by the public
and on getting the information, the police reached at the spot and arrested
him with katta.
6. A perusal of the statement of PW 3 shows that he nowhere
alleges that the Appellant and his co-accused attempted to commit robbery.
Even PW2 has only stated that when the Appellant and the other accused
entered, they shouted ‘Loot Lo, Mar Do’. Thus, at best it can be said
that Appellant came with the intention to commit robbery, however, that
intention did not fructify into an attempt and it was at best the preparation.
Further this statement of PW 2 is not corroborated by PW3. From his
testimony, it is evident that the Appellant at best had the intention to kill
Ram Niwas. Thus, the basic ingredient of Section 398 IPC that is an
attempt to commit robbery is not made out in the present case. Therefore,
the conviction of the Appellant for offence under Section 398 IPC cannot
be sustained. The Appellant has not been convicted for the offence
punishable under Section 307 IPC. No appeal has been filed by the State
on this count.
7. For the reasons mentioned above, the appeal is allowed. The
Appellant is acquitted of the charge under Section 398 IPC. The Appellant
is in custody. The Superintendent, Tihar Jail, is directed to release him
forthwith, if not required in any other case.
Indian Law Reports (Delhi) ILR (2011) VI Delhi531 532Yogender Kumar v. Ram Kishan Gupta (Indermeet Kaur, J.)
ILR (2011) VI DELHI 531
EX. F.A.
YOGENDER KUMAR & ANOTHER ....APPELLANTS
VERSUS
RAM KISHAN GUPTA AND ANR. ....RESPONDENTS
(INDERMEET KAUR, J.)
EX F.A. NO. : 18/2010 AND DATE OF DECISION: 05.07.2011
C. M. NO. : 18758/2010
Code of Civil Procedure, 1908—Order XXI Rule 97—
Suit for specific performance of agreement to sell
decreed exparte in favour of plaintiff against the
defendant, followed by registration of sale deed and
mutation of property in the name of plaintiff—Before
the execution court, the petitioners/objectors
contended that they had purchased the property from
one Pushpa Singh who had purchased the same from
the defendant prior to the date of agreement to sell
between plaintiff and the defendant and they are in
peaceful possession—Execution court dismissed the
objections, holding that since registered sale deed
was executed in favour of plaintiff and mutation done
under the orders of the court, the objections were not
maintainable—Held, the record shows that the address
of the defendant was not correctly mentioned in the
suit though the same was known to the plaintiff and
this shows that contention of the objectors that fraud
was played upon the court cannot be ruled out —
Further held, the very purpose of Order XXI Rule
97&98 CPC is to avoid filing of separate suit and
execution court empowered to conduct detailed inquiry
on the objections—Matter remanded back to the
execution court to decide the objections afresh.
The statutory scheme envisaged under Order 21 Rule 97 of
the Code in fact provides a remedy both to the decree
holder as well as to the obstructionist/objector to have their
respective say in the matter and to get a proper adjudication
done before the executing court which would be binding
between the parties and a separate suit would be barred
with a view to ensure that multiplicity of proceedings and
parallel proceedings are avoided; procedure provided in
Order 21 Rules 97 to 103 of the Code is the remedy
available to a such concerned party to have their grievance
once and for all finally resolved in the execution proceedings.
There is no dispute to this proposition. (Para 8)
From the perusal of the impugned order it is evident that the
executing court has dismissed the objections of the objector
under Order 21 Rule 97 of the Code cursorily without giving
him a chance to the objector to prove the alleged fraud
having been played upon the court by the plaintiff/decree
holder; vehement contention of the objector being that
Samay Singh was deliberately not served at his correct
address; a vague address has been given in order that the
matter could be proceeded ex-parte and the decree could
be obtained by the decree holder. (Para 9)
Important Issue Involved: Order XXI Rule 97 in effect
provides a remedy to the decree holder as well as the objector
and require proper adjudication to be done before the
execution court which would be binding between the parties.
[Gk]
APPEARANCES:
FOR THE APPELLANTS : Mr. Ved Prakash Sharma and Ms.
Amrit Kaur oberoi, Advocates,
FOR THE RESPONDENTS : Mr. Praveen Chauhan, Advocate.
CASES REFERRED TO:
1. Usha Sinha vs. Dina Ram & others 2008 V AD (SC)
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2. Brahmdeo Chaudhary vs. Rishikesh Prasad Jaiswal &
Another AIR 1997 Supreme Court 856.
3. Babulal vs. Raj Kumar & others, AIR 1996 (Supreme
Court) 2050.
4. Sekar Mudaliar vs. Shajathi Bi and another AIR 1987
Madras 239.
RESULT: Allowed.
INDERMEET KAUR, J. (Oral)
1. The impugned order of the executing court is dated 27.09.2010.
The objections filed by the petitioner/objector (Yogender Kumar and Om
Kumar) under Order 21 Rule 97 read with Section 151 of the Code of
Civil Procedure (hereinafter referred to as the ‘Code’) had been dismissed.
2. The plaintiff/decree holder (Ram Kishan Gupta) had filed a suit
for specific performance in terms of an agreement to sell dated 18.03.1988.
His contention was that he had entered into an agreement to sell to
purchase the suit property i.e. (land measuring 4 bighas 16 biswa bearing
in khasra No.506, situated at Village Naib Sarai, Tehsil Mehrauli, Delhi)
from Samay Singh, its erstwhile owner. Part payment had been made
and the balance amount of Rs. 3,85,000/- was yet payable; suit had
accordingly been filed. This suit had been decreed in favour of the
plaintiff/decree holder vide an ex-parte judgment and decree dated
02.05.1990. Sale deed had been executed in favour of the decree holder
on 15.07.2003 which was registered on 08.10.2007 and mutation had
also been effected in his name on 12.05.2008.
3. Before the executing court, the present petitioners/objectors
(Yogender Kumar and Om Kumar) had preferred objections under order
21 Rule 97 of the Code. Their contention was that Pushpa Singh had
purchased 2100 square yards of constructed land from Samay Singh
vide agreement to sell, receipt, power of attorney dated 05.01.1988; the
petitioners had stepped into the shoes of Pushpa Singh by virtue of an
agreement to sell and other related documents executed between
themselves and Pushpa Singh dated 16.09.2008; they are in peaceful
possession of this land since 16.09.2008; they had contested the execution
filed by the decree holder and objections as aforenoted had been filed by
them along with documentary evidence.
4. The executing court after consideration of the documents of the
respective parties had dismissed the objections of the petitioner; the
executing court was of the view that a registered sale deed had been
effected in favour of the decree holder under the orders of the Court and
since mutation of the land had also been effected in favour of the said
decree holder, the objections were not maintainable.
5. Counsel for the objectors has vehemently contended that the
decree obtained by the decree holder was in fact a fraudulent decree; it
is liable to be set aside; Samay Singh was the only defendant arrayed in
the suit; his address had been shown as Village Naib Sarai without any
details of the house number or the lane. Attention has been drawn to the
order of the High Court dated 19.01.2000 where in the execution
proceedings, the High Court had noted that the decree holder has not
given the complete address of Samay Singh; it was only thereupon i.e.
on 19.01.2000 that the complete address of Samay Singh was disclosed
to the Court i.e. he being a resident of H-221, Valmikiwali Gali, Naib
Sarai, Tehsil Mehrauli, Delhi. This was on 19.01.2000. Suit had been
filed in the year 1989. Address of Samay Singh in the suit proceedings
was only described as Village Naib Sarai, Tehsil Mehrauli, Delhi; house
number and details of gali had not been given; learned counsel for the
respondent on repeated query has no answer as to how subsequently on
19.01.2000 he learnt about this address of Samay Singh. In the suit
proceedings Samay Singh had been proceeded ex-parte; the report of the
process server was that he has been served. Learned counsel for the
objector has drawn attention of this Court to the service report of Samay
Singh in the execution proceedings which reports are dated 17.08.2022
and 17.09.2002. In the report of process server dated 17.08.2002 it had
been recorded that ‘bahar chale gaye’; in the report of 17.09.2002, it had
been recorded that ‘no one lives there’; on these two service reports, the
Court had recorded a finding that judgment debtor/Samay Singh stands
served.
6. Record clearly shows that the address of Samay Singh had not
been correctly depicted in the suit proceedings although it appears to
have been known to the plaintiff and that is how it has disclosed to the
Indian Law Reports (Delhi) ILR (2011) VI Delhi535 536Yogender Kumar v. Ram Kishan Gupta (Indermeet Kaur, J.)
High Court on 19.01.2000. Contention of learned counsel for the objector
is that in these circumstances the ex parte decree has been obtained by
playing a fraud upon the court; this submission cannot be ruled out
straight away.
7. Counsel for the objector has further pointed out that the procedure
under Order 21 Rule 97 of the Code postulates that a detailed scrutiny
and enquiry has to be conducted by the executing court; it is for this
reason that it specifically stipulates that no separate suit is required to be
filed; provisions of Order 21 Rules 97 & 98 of the Code are wide enough
to enable the executing court to enter into a detailed enquiry to decided
the objections of such an objector. In AIR 1996 (Supreme Court 2050
Babulal Vs. Raj Kumar & others, the Apex Court while adverting to
the provisions of Order 21 Rule 98 of the Code read with Rule 103 had
held that the procedure to deal with the objections of an objector is
prescribed in the Code itself; the executing court is required to determine
the questions which have been urged in a detailed manner. This has been
reiterated in AIR 1997 Supreme Court 856 Brahmdeo Chaudhary Vs.
Rishikesh Prasad Jaiswal & Another.
8. The statutory scheme envisaged under Order 21 Rule 97 of the
Code in fact provides a remedy both to the decree holder as well as to
the obstructionist/objector to have their respective say in the matter and
to get a proper adjudication done before the executing court which would
be binding between the parties and a separate suit would be barred with
a view to ensure that multiplicity of proceedings and parallel proceedings
are avoided; procedure provided in Order 21 Rules 97 to 103 of the Code
is the remedy available to a such concerned party to have their grievance
once and for all finally resolved in the execution proceedings. There is
no dispute to this proposition.
9. From the perusal of the impugned order it is evident that the
executing court has dismissed the objections of the objector under Order
21 Rule 97 of the Code cursorily without giving him a chance to the
objector to prove the alleged fraud having been played upon the court by
the plaintiff/decree holder; vehement contention of the objector being that
Samay Singh was deliberately not served at his correct address; a vague
address has been given in order that the matter could be proceeded ex-
parte and the decree could be obtained by the decree holder.
10. It is not in dispute that the objectors are in legal possession of
the suit land since 2008; their contention is that they are in legal possession
by virtue of an agreement to sell and other related documents dated
16.09.2008 executed by Pushpa Singh in their favour; Pushpa Singh had
derived her title from Samay Singh by virtue of documents executed by
Samay Singh in favour of Pushpa Singh on 05.03.1988; objectors have
stepped into the shoes of Pushpa Singh. In these circumstances, the
objections raised by the respondent qua the provisions of Section 102 of
the Code ( rights of the transferee pendente lite) is of little relevance as
the instant suit was filed in 1989 but Pushpa Singh had allegedly purchased
the suit land on 05.01.1988 i.e. prior to the filing of the present suit; the
objectors are claiming their right and title through Pushpa Singh which
is prior in time to the filing of the present suit. Section 102 would thus
have no relevance. Judgment relied upon by learned counsel for the
respondent reported in 2008 V AD (SC) 201 Usha Sinha Vs. Dina Ram
& others is thus inapplicable.
11. The contention of learned counsel for the respondents that even
assuming that documents had been executed by Pushpa Singh in favour
of the present objector yet Pushpa Singh herself was only a power of
attorney holder of Samay Singh and as such documents executed by
Pushpa Singh in favour of the present objectors is hit by the provisions
of Sections 32 & 33 of the Registration Act, 1908 and for this proposition
reliance has been placed upon AIR 1987 Madras 239 Sekar Mudaliar
Vs. Shajathi Bi and another. This aspect cannot be gone into at this
stage; this would also require adjudication and a detailed scrutiny.
12. Lastly it has been pointed out that a separate suit bearing No.
1657/2009 seeking cancellation of sale deed dated 15.07.2003 has been
filed by Pushpa Singh and is pending in the Court of District Judge,
Saket; in those proceedings, the present objectors who were initially
arrayed as defendants have been transposed as plaintiffs; it is pointed out
by learned counsel for the respondent that the objection now raised in
this Court can be adjudicated in those proceedings. This Court is not
inclined to agree to this submission of learned counsel for the respondent.
It is the threat of execution which is pending before the executing court
where the present objectors are at sufferance; that threat cannot be taken
care of in the suit pending in the Saket Court. That apart learned counsel
for the petitioner submits that they would not be pressing the said suit
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and in fact would seek permission of the Court to withdraw the said suit
pending in the court of District Judge, Saket.
13. In view of the aforenoted contentions raised by respective
parties, this appears to be a fit case where the matter should be remanded
to the executing court to enter into a detailed enquiry and examine the
objections of the objector giving him an opportunity to adduce evidence,
if required to prove the alleged fraud committed by the plaintiff/decree
holder in obtaining the ex parte decree against Samay Singh. The procedure
contained in Order 21 Rules 97 & 98 of the Code read with the ratio of
the judgments in Babu Lal (Supra) and Brahmdeo Chaudhary (Supra)
shall be strictly adhered to. 14. Execution petition is allowed and disposed
of in the above terms. The parties to appear before the District Judge,
Saket who shall make an endevour to dispose of the objections within an
outer limit of six months from the receipt of the order.
ILR (2011) VI DELHI 537
C.M.
M/S BHOLE BABA DAIRY INDUSTRIES LTD. ....PETITIONER
VERSUS
UNION OF INDIA AND ORS. ....RESPONDENTS
(MANMOHAN SINGH & SURESH KAIT, JJ.)
C.M. NO. : 8010/2011 IN DATE OF DECISION: 05.07.2011
WP (C) NO. : 3839/2011
Customs Act, 1962—Notification No. 23 (RE-2010)/2009-
2014 dated 18.02.2010(ANN-P-I), Notification No. 25 (RE-
2010)/2009-2014 dated 24.03.2011 (ANN-P-II), Notification
No. 37 E (RE-2010)/2009-2014 dated 24.03.2011 (ANN-P-
III)-(impugned Notifications) Export of ‘Casein’ and
‘Casein Products’-Petitioner manufacturer and exporter
of casein and casein products- eligible and therefore
applied and obtained permission for factory stuffing in
terms of CBEC circular no. 60/2011-Cus dated
01.11.2001—Applied to jurisdictional Central Excise
Officers for examination—Goods examined under four
shipping bills on 16.02.2011, 16.02.2011, 16.02.2011
and 18.02.2011—On that very date were removed from
the factory and handed over to ICD, Tuglakabad—
Meanwhile—Impugned notifications were issued
prohibiting export of casein and casein products-AO
disallowed export-goods were presented for
examination after the impugned notifications were
passed-CC(A) allowed the appeal-Goods presented to
jurisdictional Central Excise Officers is presentation
for Customs examination-Not hit by the prohibition—
Respondent challenged the order before Tribunal—
Appeal yet to be listed—No stay order—Present writ
petition filed for compliance of the order of CC(A)-
suffering demurrage-continued to be levied at
escalating rate. Held—Petitioner had completed all
the formalities for exportable goods-change of policy
provision not applicable to consignment already
handed over to customs for examination—Petitioner
cannot be blamed for procedural delay-in case the
goods are exported, the Petitioner will suffer
irreparable loss as the goods cannot be re-used—
Balance of convenience lies in favour of the
Petitioner—Respondents directed to allow the
Petitioner to export the goods.
In terms of para 9.12 of Handbook procedures 2009-14,
which provides that in case of change of policy provisions,
the same shall not be applicable to the consignment already
handed over to Customs for examination and subsequent
exports up to Public Notice/Notification date. The relevant
provisions are as below:
‘‘However, wherever Procedural/Policy provisions have
been modified to disadvantage of exporters, same
Indian Law Reports (Delhi) ILR (2011) VI Delhi539 540 Bhole Baba Dairy Indus. Ltd. v. Union of India (Manmohan Singh, J.)
shall not be applicable to consignments already
handed over to Customs for examination and
subsequent exports upto Public Notice/Notification date.
Similarly, in such cases where goods are handed over
to the customs authorities before expiry of export
obligation period but actual Exports take place after
expiry of the export obligation period, such exports
shall be considered within export obligation period
and taken towards fulfilment of export obligation.’’
The grievance of the petitioner is that the respondent No.3
has not informed the concerned parties about the notification
dated 18.02.2011 otherwise there was no occasion on the
part of the petitioner not to comply any other formality, if left
and is required by the custom authorities. (Para 29)
After having considered the above, we feel that in case
there is any procedural delay, the petitioner cannot be
blamed as the petitioner has completed the formalities in
terms of notification dated 07.07.1987. Therefore, it is
apparent on the face of it that the exports are not hit by the
provision imposed under the notification dated 18.02.2011.
(Para 30)
Important Issue Involved: Subsequent case of change of
policy provisions shall not be applicable to the consignment
already handed over to Customs for examination.
[Sa Gh]
APPEARANCES:
FOR THE PETITIONER : Mr. Maninder Singh, Sr. Advocate
with Mr. J.S. Bakshi and Mr. Amitesh
Singh, Advocates.
FOR THE RESPONDENTS : Mr. Nitish Gupta and Mr. Ravinder
Aggarwal, CGSC for respondent No.
1 and 2 Mr. Mukesh Anand and Mr.
Shailesh Tiwari, Advocates for
respondent No. 3.
RESULT: Interim application allowed.
MANMOHAN SINGH, J.
1. The petitioner has filed the present writ petition under Article 226
and 227 of the Constitution of India thereby amongst others challenging
the Notification No. 23 (RE-2010)/2009-2014 dated 18.02.2010(ANN-P-
I), Notification No. 25 (RE-2010)/2009-2014 dated 24.02.2011 (ANN-P-
II), Notification No. 37 E (RE-2010)/2009-2014 dated 24.03.2011 (ANN-
P-III) and sought other reliefs.
2. The matter was listed first time before the court on 31.05.2011
when notice was issued. On oral request the prayer to implead the
Custom Authority was allowed. The matter was adjourned to 17.06.2011
before the Vacation Division Bench. When the matter was listed on
17.06.2011, time was granted to file the reply to the Custom Authority
who is the main contesting party.
3. Learned counsel appearing on behalf of the petitioner has made
a statement before us that at this stage the petitioner is only pressing the
following relief made in CM. No. 8010/2011 which is listed for disposal:
To permit the petitioner to export 135 MT of casein lying at ICD
Tuglkabad, New Delhi and 70 MT of casein lying in the godowns
of the petitioner. Further the petitioner be permitted to fulfill their
total pending export orders of 560 MT of Casein as enumerated
in ANN-P-XII.
4. Both the parties were heard in the interim application and orders
were reserved on 27.06.2010.
5. The brief facts of the case relevant for the disposal of the
present writ petition are that the petitioner is a manufacturer of dairy
products having factory at Agra-Aligarh By-pass Road, Khaireshwar Dham
(U.P.) which is duly registered with the Central Excise Division-Aligarh
(Lucknow Commissionrate) under Registration No. AACCB2221MXM001.
6. The petitioner is eligible for opting clearance of goods for export
and examination thereof at the factory itself in terms of CBEC’s Circular
No. 60/2001-Cus dated 01.11.2001, being a Central Excise registered
manufacturer. It is the admitted position that the petitioner had time to
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541 542 Bhole Baba Dairy Indus. Ltd. v. Union of India (Manmohan Singh, J.)
time applied and obtained the permission for factory stuffing under Excise
provision in terms of the aforesaid Circular.
7. The petitioner had time bound export contractual obligations of
560 MT of casein prior to 18.02.2011, the details of the order in respect
of the same are:
(i) P.O. No.0004916 dated 21.01.2011 quantity 153MT.
(ii) P.O. No.0004930 dated 07.02.2011 quantity 102MT.
(iii) P.O. No.11563 dated 25.01.2011 quantity 51 MT.
(iv) P.O. No.11566 dated 14.02.2011 quantity 102 MT.
(v) P.O. No.0004920 dated 24.01.2011 quantity 102MT.
(vi) P.O. No.LE 110046 dated 02.02.2011 quantity 50MT.
8. Consignment of 135 MT of casein was made ready for export
to the importers. The petitioner filed four shipping bills and sought factory
stuffing permission in respect of the same. In terms of the factory
stuffing permission the petitioner requisitioned seven containers for stuffing
of the consignments for exports at the petitioner’s permission and
thereafter applied to the jurisdictional Central Excise Officers for
examination of the goods, stuffing thereof in the containers, seeking of
the containers and endorsement of the ARE-1’s.
9. The excise officers examined the goods under four shipping bills
(in seven containers) on 16.02.2011, 16.02.2011, 16.02.2011 and
18.02.2011 and thereafter the same were removed from the factory on
the same very date and they were handed over at ICD Tuglakabad on
17.02.2011 (at 06:07 am and 06:06 am in two containers); 18.02.2011
(at 04.26 am and 04.26 am in two containers); 17.02.2011 (at 07:23 am
and 11:49 am in two containers);19.02.2011 (at 2.47 am in one container).
A chart depicting the said movement of goods is already filed.
10. In the meanwhile, three notifications were issued by respondent
No.2 i.e. Notification No.23(RE-2010)/2009-2014 dated 18.02.2011,
Notification No.25 (RE-2010/2009-2014) dated 24.02.2011, Notification
No.37 E(RE-2010)/2009-2014 dated 24.03.2011 issued by the respondent
No.2 purportedly in the exercise of the powers conferred by the Section
5 of the Foreign Trade (Development & Regulation) Act, 1992 whereby
Director General of Foreign Trade has prohibited the export of inter alia
various milk and milk products, including ‘casein’ and ‘casein products’,
which the petitioner was exporting.
11. The containers of the goods arrived at ICD Tughlakabad on
various dates and the petitioner thereafter presented the Shipping Bills to
the adjudicating authority for formal ‘Let Export Order’, however, the
adjudicating authority disallowed the exports on the reason that the goods
that the goods were presented for examination before the Custom Officer
on 21.02.2011. Therefore, it cannot be permitted in terms of the said
notification. Thereafter the petitioner filed the appeal in the office of
Commissioner of Customs (Appeals) bearing No. CCA/ICD/207/2011.
12. After hearing the parties on 27.04.2011, the said appeal was
allowed and the impugned order disallowing the export of the in goods
was set aside. The Commissioner of Customs (Appeals) came to the
conclusion that the said order was not legal in view of the notification
No. 31/1997-Cus(NT) dated 07.07.1997 wherein it is mentioned that all
Supreintendents and Inspectors of Central Excise Department in any
place of India have been appointed as Officers of Customs and therefore
presentation of goods for examination before the jurisdictional Central
Excise Officers for export is nothing but presentation of goods for
Customs examination for export in terms of Para 9.12 of the Foreign
Trade Policy and the stipulations of Notification 37 (RE-2010)/2009-
2014 dated 24.03.2011. As the goods were presented for examination
before the said officers prior to 18.02.2011 the exports are not hit by the
prohibition imposed under the Notification 23(RE-2010)/2009-2014 dated
18.02.2011 as the same are covered under transitional provision of the
said notification.
13. The operating part of order of Commissioner (Appeals) dated
27.04.2011 reads as under:-
‘‘I find that in terms of Para 9.12 of the Handbook of procedures
2009-14, in change of policy provisions, the same shall not be
applicable to the consignment already handed over to Customs
for examination and subsequent exports upto public Notice/
Notification date. The relevant provisions are as below:
‘‘However, wherever procedural /policy provisions have been
modified to disadvantage of exporters, same shall not be applicable
to consignment already handed over to Customs for examination
Indian Law Reports (Delhi) ILR (2011) VI Delhi543 544 Bhole Baba Dairy Indus. Ltd. v. Union of India (Manmohan Singh, J.)
and subsequent exports upto Public Notice/Notification date.
Similarly, in such cases where goods are handed over to the
customs authorities before expiry of export obligation period but
actual Exports take place after the expiry of the export obligation
period, such exports shall be considered within export obligation
period and taken towards fulfillment of export obligation.
’’I find that export goods can be stuffed in containers at the
Port of Export as well as at the factory premises of a
manufacturer. The Appellant being a registered unit under the
Central Excise registered with Registration No. AACCB2221
MXM001 was permitted factory stuffing in terms of CBEC’s
circular No.60/2001 dated 01.11.2001. I also find that in terms
of Notification 31/1997- Cus(NT) dated 07.07.1997 all
Superintendents and Inspectors of Central Excise Department in
any place of India have been appointed as Officers of Customs
and therefore presentation of goods for examination for export
in terms of para 9.12 of the Foreign Trade policy and the
stipulations of Notification No.37 E(RE-2010)/2009-2014 dated
24.03.2011(ANN-P-III). As the goods were presented for
examination before the said officers prior to 18.02.2011, the
exports are not hit by the prohibition imposed under Notification
No.23 (RE-2010)/2009-2014 dated 18.02.2010 (ANN-P-I) as the
same are covered under transitional provision of the said
notification.
In view of the above, the impugned order is not legal and is
therefore set aside.’’
14. Learned counsel appearing on behalf of respondent No.3 has
informed the Court that the order dated 27.04.2011 has been challenged
by the respondent No.3 by filing an appeal on 23.06.2011 before the
Custom Excise and Service Tax Tribunal, New Delhi. Since the said
appeal is yet to be listed and there is no stay of the operation of the said
order, thus, the order dated 27.04.2011 is operational.
15. The main concern of the petitioner at this stage is that the
petitioner has already suffered a demurrage to the tune of rupees Twenty
lacs, (now Twenty Seven lacs approximately) and the same is being
continued to be levied at an escalating rate. Further the product in question
‘casein’ has no domestic market. It has a shelve life of one year. The
goods in question were manufactured in January-February 2011. Thus,
the five months have passed. After clearance the required shipping time
to destination is one and a half month and the importers also accept the
product if approximate six months of the shelve life of the products is
remaining. As on date five and a half months of shelve life of the product
only remains.
16. The petitioner states that the effect of the impugned notifications
is that all the plant and machinery worth crores of rupees is lying idle
and the dues of the bank over Rs.150 Crores are mounting and the
Petitioner has the liability of paying the interests and term loan repayment.
The Petitioner has given direct employment to hundreds of skilled and
unskilled workers, professionals, technicians, scientists in the filed of
Diary Science, Nutrition, Veterinary, Food Technology, life sciences and
research professionals.
17. The petitioner imported machinery against the EPCG license. As
per the terms of this license, import duty was partially waived of against
the guarantee given by the petitioner that they will make exports to the
tune of certain crores and as per the said license. If the petitioner fails
in discharging the said obligation, then the petitioner shall have to pay the
import duty that was waived on the import of the machines along with
interest.
18. The petitioner submits that Commissioner of Customs ICD
Tuglakabad New Delhi has not till date, permitted the Petitioner to export
135 MT of cases of the Petitioner, in spite of the clear Orders dated
27.4.2011 passed by the Commissioner (Appeals) in the Appeal filed by
the Petitioner wherein he, inter alia, held that the petitioner was to be
permitted to export Casen as the case of the Petitioner was covered
under notification dated 24.03.2011. Therefore, the petitioner had no
alternative except to file the present writ petition.
19. It is also mentioned in the petition that the Additional
Commissioner Customs ICD Dadri NOIDA in the matter of another
exporter vide orders dated 04.05.2011 was pleased to permit the export
of the skimmed milk powder in respect of the goods as were handed
over to the Customs for export before the dead line i.e., 18.02.2011 as
per the notification dated 24.03.2011 and the examination of the goods
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by the ‘Excise Officer’ were taken to be examination by the ‘Customs
Officer’.
20. It is further stated by the petitioner that in the case of M/s VRS
Foods Ltd., the department did not file any appeal against the Orders
dated 04.05.2011 of Addl. Commissioner Customs, ICD Dadri ANN-P-
XVI Page 122 and the product which was factory stuffed and examined
by officers of the Central Excise was permitted to be exported by the
Custom Officials.
21. Respondent No. 3 has filed reply affidavit of Sh. Navraj Goel,
Deputy Commissioner of Customs (Export) on 24.6.2011 who has stated
in his affidavit that the petitioner export 135 MT of casein is hit by
prohibition imposed under notification 23(RE-2010)/2009-2012 dated
18.2.2011. In the affidavit it is not denied that the petitioner filed four
shipping bills for export of Acid Casein at ICD, Tuglakabad which are
on or before 18th February, 2011. However, the contention of the
respondent No. 3 is that the date of assessment of shipping bill and the
date of production of cargo to customs were subsequent to the date of
notification as the cargo was handed over to the customs for examination
and export subsequent to the said date. In nut shell, respondent No. 3
states that the goods ought to have handed over to the customs on or
before 18th February, 2011 for examination of export. Further contention
of respondent No. 3 is that in case of factory stuffed cargo, where
goods are examined in the factory in the presence of jurisdiction Central
Excise Officers, the goods are not produced to Customs at the ICD/Port.
Hence, it was not permissible to permit export of impugned goods due
to prohibition in the notification.
22. Other submission of learned counsel for respondent No. 3 is
that since the appeal has been filed by the respondents against the order
dated 27th April, 2011 therefore the issue in question is now sub-judice
and no order can be passed in the present writ petition, however, some
directions may be issued to the CESTAT for early disposal of the appeal
filed by respondent No. 3.
23. Now the question before this Court is as to whether the exports
are hit by prohibition imposed under notification dated 18th February,
2011 or some are covered under transitional provision of the notification
and in terms of notification 31/1997-Cus(NT) dated 7th July, 1997 wherein
the Superintendents and Inspectors of Central Excise Department in any
place of India have been appointed as Officers of Customs and therefore
the presentation of goods for examination before the jurisdictional Central
Excise Officers for export is nothing but presentation of goods for
Customs examination for export.
24. The notification No. 31/97-Cus.(N.T.), dated 7th July, 1997
reads as under:-
‘‘Appointment of Appraisers, Examiners, Superintendents,
Inspectors, Preventive Officers, Women Searchers, Ministerial
Officers and Class IV officers in the Customs Department in any
place in India. Officers of DRI, Narcotics Control Bureau and
EIB appointed as ‘‘Officers of Customs’’. — In exercise of the
powers conferred by sub-section (1) of section 4 of the Customs
Act, 1962 (52 of 1962) and in supersession of the notification
of the Government of India in the Ministry of Finance (Department
of Revenue) No. 38/63-Customs, dated 1st February, 1963 the
Central Government hereby appoints the following persons to be
the Officers of Customs, namely:-
1. Appraisers, Examiners, Superintendent Customs
(Preventive), Preventive Officers , Women Searchers,
Ministerial Officers and Class IV Officers in the Customs
Department in any place in India.
2. Superintendents, Inspectors, Women Searchers, Ministerial
staff and Class IV staff of Central Excise Department,
who are for the time being posted to a Customs port,
Customs airport, Land-Customs station, Coastal por,
Customs preventive post, Customs Intelligence post or a
Customs warehouse.
3. Superintendents, and Inspectors of Central Excise
Department in any place in India.
4. All Officers of the Directorate of Revenue Intelligence.
5. All Officers of the Narcotics Control Bureau.
6. All Intelligence Officers of the Central Economic
Intelligence Bureau.’’
Indian Law Reports (Delhi) ILR (2011) VI Delhi547 548 Bhole Baba Dairy Indus. Ltd. v. Union of India (Manmohan Singh, J.)
25. The learned counsel for respondent No. 3 has not shown/
produced any other contrary notification other than the notification dated
7th July, 1997 referred by the learned counsel for the petitioner wherein
it is clearly mentioned that all the Superintendents and Inspectors of
Central Excise Department in any place of India have been appointed as
Officers of Customs.
26. In the present case it is not disputed fact that the petitioner is
eligible for opting clearance of goods for exports and examination thereof
at the factory itself in terms of CBEC’as Circular No. 60/2001-Cus dated
01.11.2001 and the exports are permissible for dairy products
manufactured by the petitioner till 18.02.2011. The respondent No.3 has
also not disputed the fact that the petitioner sought stuffing permission
in respect of the same. The Circular No. 60 dated 1st November, 2001
referred by the petitioner reads as under:-
‘‘CIRCULAR NO. 60 DATED 1st November 2001
I am directed to refer to Board’s instructions issued vide telex/
letter F.No. 434/47/95-Cus.IV, dated 9.10.95 and Circular No.
90/98-Cus. dated 8/12/98 regarding factory stuffing on containers
with export cargo. The said instructions provide detailed guidelines
for factory stuffing of container. It has been brought to the
notice of the Board by the trade that exporters are required to
obtain permission for factory stuffing from Customs every six
months. It has been suggested that the Customs should do away
with the practice of six monthly permission for factory stuffing
and this should be made one time permission.
2. The matter has been examined by the Board. It has been
decided to discontinue the practice of renewal of permission for
factory stuffing every six months. The permission for factory
stuffing shall be granted on one time basis and exporters shall
not be required to come to Customs every six months for renewal
of the same. However, in case something adverse is noticed
against the exporter, the Customs may withdraw the permission.
3. These instructions may be brought to the notice of all concerned
by way of issuance of suitable Public Notice/ Standing Order.
4. Difficulties, if any, in implementation of these instructions,
may be brought to the notice of the Board. Kindly acknowledge
receipt of this circular.
G. Circular No. 20/2010-Customs
F. No.450/ 98 /2010-Cus.IV
Government of India
Ministry of Finance
Department of Revenue
Central Board of Excise & Customs
North Block,
New Delhi 22nd July, 2010
To
All Chief Commissioners of Customs / Customs (Prev.).
All Chief Commissioners of Customs & Central Excise.
All Commissioners of Customs / Customs (Prev.).
All Commissioners of Customs (Appeals).
All Commissioners of Customs & Central Excise.
All Commissioners of Customs & Central Excise (Appeals).
Subject: Provision of single factory stuffing permission valid
for all Customs Houses — regarding.
Sir/ Madam,
I am directed to invite your attention to Board’s instructions
issued vide telex/letter F.No.434/47/95-Cus.IV, dated 9.10.95,
Circular No. 90/98-Cus dated 8/12/98 and Circular No. 60/2001-
CUS dated 1st November, 2001 regarding Permission for factory
stuffing.
2. The Task Force of the Department of Commerce to reduce
transaction cost involved in exports has recommended the grant
of a single factory stuffing permission valid for all the customs
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549 550 Bhole Baba Dairy Indus. Ltd. v. Union of India (Manmohan Singh, J.)
stations instead of customs station wise permission. This
recommendation has been accepted by the Government.
3. Accordingly, it has been decided by the Board to provide for
the grant of a single factory stuffing permission valid for all the
customs stations instead of customs station wise permission.
The facility will be subject to the following safeguards:
(i) The exporter may be asked to furnish to customs a list of
customs stations from where he intends to export his goods.
(ii) The customs house granting the factory stuffing permission
should maintain a proper register to keep a track-record of such
permissions, and also create a unique serial number for each of
such permissions.
(iii) The customs house granting the factory stuffing permission
should circulate the permission to all customs houses concerned.
The communication should clearly indicate the name and
contact details of the Preventive Officer/Inspector and
Superintendent concerned of the customs house granting
the permission as well as those of the Central Excise Range
concerned to facilitate real time verifications, if required.
(iv) In case, something adverse is noticed against the exporter,
the customs station concerned shall promptly intimate the customs
house which has granted the permission, which will, in turn,
withdraw the permission, and inform to all customs houses
concerned.
4. Board’s earlier instructions /circulars stand modified to the
extent mentioned above.
5. These instructions may be brought to the notice of all concerned
by way of issuance of suitable Public Notice / Standing Order.
6. Difficulties, if any, in implementation of the Circular may be
brought immediately to the notice of the Board.
Yours sincerely,
(Navraj Goyal)
Under Secretary (Customs)’’
27. In case we see the entire matter on merit, it is obvious that in
fact, the petitioner has filed the present petition for compliance of the
said order dated 27.04.2011 passed by the Commissioner of Customs
(Appeals). It is not denied by the respondent No.3 that on the date of
filing of the petition, the petitioner has incurred demurrage of Rs. 20 lac
and the amount of demurrage against the petitioner are continuing every
day. The petitioner’s case is that the notification dated 18.02.2011 was
issued without any intimation/notice whatsoever given by the respondents
to the petitioner or any concerned parties though many courts have time
and again held that legitimate expectations but a fact of the Rule of Law
and Administrative action must be in conformity with the Legitimate
Expectation of persons. The petitioner says that in view thereof, the
respondents have no power to take away any vested rights with
retrospective effect.
28. The respondent No.3 has not disputed the fact that the Excise
Officers examined the goods under four shipping bills (in seven containers)
on 16.02.2011, 16.02.2011, 16.02.2011 and 18.02.2011 and thereafter
the same were removed from the factory on the same very date and they
were handed over at ICD Tuglakabad on 17.02.2011 (at 06:07 am and
06:06 am in two containers); 18.02.2011 (at 04.26 am and 04.26 am in
two containers); 17.02.2011 (at 07:23 am and 11:49 am in two
containers);19.02.2011 (at 2.47 am in one container). The defendant
No.3 has also not denied that the containers of the goods arrived at ICD
Tughlakabad on various dates and the petitioner thereafter presented the
Shipping Bills to the adjudicating authority for formal ‘Let Export Order’.
There is a force in the submission of the petitioner that the petitioner
has completed all the formalities for exportable goods under the compliance
of notification dated 07.07.1997 which provides that all Superintendents
and Inspectors of Central Excise Department in any place of India have
been appointed as Officers of Customs.
29. In terms of para 9.12 of Handbook procedures 2009-14, which
provides that in case of change of policy provisions, the same shall not
be applicable to the consignment already handed over to Customs for
examination and subsequent exports up to Public Notice/Notification date.
The relevant provisions are as below:
‘‘However, wherever Procedural/Policy provisions have been
Indian Law Reports (Delhi) ILR (2011) VI Delhi551 552 Bhole Baba Dairy Indus. Ltd. v. Union of India (Manmohan Singh, J.)
modified to disadvantage of exporters, same shall not be applicable
to consignments already handed over to Customs for examination
and subsequent exports upto Public Notice/Notification date.
Similarly, in such cases where goods are handed over to the
customs authorities before expiry of export obligation period but
actual Exports take place after expiry of the export obligation
period, such exports shall be considered within export obligation
period and taken towards fulfilment of export obligation.’’
The grievance of the petitioner is that the respondent No.3 has not
informed the concerned parties about the notification dated 18.02.2011
otherwise there was no occasion on the part of the petitioner not to
comply any other formality, if left and is required by the custom authorities.
30. After having considered the above, we feel that in case there
is any procedural delay, the petitioner cannot be blamed as the petitioner
has completed the formalities in terms of notification dated 07.07.1987.
Therefore, it is apparent on the face of it that the exports are not hit by
the provision imposed under the notification dated 18.02.2011.
31. It is not understood why the respondent No.3 has not challenged
the order dated 27.04.2011 promptly if respondents were serious about
the said order, rather the appeal was filed after filing the present writ
petition by that time the petitioner had to incur demurrages of Rs. 20 lac
on the date of filing.
32. In similar situations in the case of M/s VRS Foods (supra)
orders were passed by Additional Commissioner, ICD on 4th May, 2011
and in the said case the goods were examined by the Central Excise
Officer under their supervision for container No. SGCU 2458144 &
TGHU 0144617 and brought in the customs area on 18.02.2011 (but
after office hours) already had been examined by the Central Excise
Officer on 18.02.2011.
33. The respondents have banned the export casein which is made
from less than 0.25% of the total milk production in the country as per
the case of the petitioner while it is an admitted position that the respondents
have not banned the export of the other milk products like cheese, ghee,
butter etc.
34. In the present case, in case the export of Casein and Casein
products of the petitioner are not allowed, it will cause irreparable loss
and injury to the petitioner as the said goods cannot be re-used. It is also
a fact that there is no loss of custom duty as admitted by the respondent
No.3. Therefore, the balance of conveyance even otherwise lies in favour
of the petitioner and against the respondents. The Division Bench judgment
of Bombay High Court titled Parag Milk and Milk Products Ltd. v.
Union of India dated 16th August, 2007 has allowed the export in
similar situation. Para 10 of the judgment reads as under:-
‘‘10. The above principles, if applied to the present case, would
show that the doctrine of legitimate expectancy, and for limited
extent of constructive promissory estoppel, would have some
application. The petitioner has invested huge amount to establish
a plant and export facilities of international standards. The declared
policy was to operate during the period of 2004 to 2009.
Prospective application of the ban is not in question before us.
On various grounds the same could even be justified. However,if
the concluded contracts, which have been acted upon between
the parties partially prior to the cut off date are not fulfilled, it
would, to a great extent, amount to disturbing the settled things.
Such an approach would be greatly unacceptable in view of the
fact that the respondent themselves had reserved the right to
examine on case to case basis the existing export obligations.
Nowhere in the order, and for that matter even in the counter
affidavit, it is stated what would be the existing export obligation
and under what circumstances the benefit of the decision could
be given to the affected parties. Public interest is a term of wide
connotation and it has to be considered keeping in view the facts
and circumstances of each case. The Authorities concerned while
passing the order dated 30th April, 2007 had ignored these aspects
of the matter while it has taken into consideration what is not on
record. There is nothing even on the court file to show as to
what is intended by existing export obligation, simplicity except
obligation in relation to free trade items. We may also notice that
on 20th April, 2007 some discussion had taken place between
the Director General of Foreign Trade, Ministry of Commerce
and the petitioner. Vide their letter of the same date they had
stated that as per the discussions the petitioner may be allowed
to export 5000 M.T. Skimmed Milk Powder against existing
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contractual obligations. Thus the petitioner was even willing to
restrict its trade to export of 5000 M.T. The impugned order
does not even touch this aspect of the matter in its proper
perspective.’’
35. From the above discussion, we allow the interim application
filed by the petitioner. We direct the respondents to allow the petitioner
to export the goods in question in terms of the prayer made in the
application.
WP(C) 3839/2011
Notice has already been issued in the writ petition. The respondent
No.3 is granted four weeks time to file the counter affidavit with advance
copy to the learned counsel for the petitioner who may file the rejoinder
thereto within two weeks thereafter.
List the matter before the Roster Bench on 26.08.2011.
ILR (2011) VI DELHI 553
CRL. APPEAL
JAIPAL ....APPELLANT
VERSUS
STATE ....RESPONDENT
(S. RAVINDRA BHAT AND G.P. MITTAL, JJ.)
CRL. APPEAL NO. : 137/1998 DATE OF DECISION: 05.07.2011
& 181/1998
Indian Penal Code, 1860—Section 302, 201, 384, 34—
Indian Evidence Act, 1873—Section 73, Code of Criminal
Procedure, 1973—Section 311A, Constitution of India,
1950—Article 20—Appellants preferred appeals to
challenge their conviction under Section 302, 201, 384
read with Section 34 of Act—They urged, one of
circumstance i.e. delivery of ransom note in the
handwriting of the appellant Jaipal not proved—Also
police did not have power to take accused's
handwriting under Section 73 of Indian Evidence Act—
Moreover, Section 311 A of Cr.P.C. was incorporated
in the statute book only w.e.f. 23.06.2006 and was not
retrospective in its application—Held:- Obtaining the
handwriting of an accused during investigation is not
hit by Article 20 (3) of the Constitution of India as an
accused cannot be said to be a witness against himself,
if he is asked to give his handwriting for purpose of
verification of any document purported to be in his
handwriting—Some forms of testimonial acts lie
outside the scope of Article 20(3)—Obtaining appellant
Jaipal's handwriting during investigation not illegal.
Section 311-A allows the Court to order an accused to give
his handwriting during enquiry or investigation. These powers
were not available with the Court before Section 311-A was
brought to the statute book in the year 2006. An addition of
Section 311-A merely empowered the Court to order an
accused to give his handwriting/signatures for the purpose
of investigation of his questioned handwriting/signatures
which power was not available to the Court as according to
Section 73, the Court can order for comparison of signatures/
handwriting etc. of any person whose signatures / handwriting
is in dispute before the Court. (Para 45)
Important Issue Involved: Obtaining the handwriting of
an accused during investigation is not hit by Article 20 (3)
of the Constitution of India as an accused cannot be said
to be a witness against himself, if he is asked to give his
handwriting for purpose of verification of any document
purported to be in his handwriting—Some forms of
testimonial acts lie outside the scope of Article 20(30).
[Sh Ka]
Indian Law Reports (Delhi) ILR (2011) VI Delhi555 556Jaipal v. State (G.P. Mittal, J.)
APPEARANCES:
FOR THE APPELLANT : Mr. Sameer Chandra, Amicus Curiae.
FOR THE RESPONDENT : Mr. Jaideep Malik, APP for the Sate.
CASES REFERRED TO:
1. Selvi vs. State of Karnataka, (2010) 7 SCC 263.
2. Ponnusamy vs. State of Tamil Nadu, (2008) 5 SCC 587.
3. State of Maharashtra vs. Suresh, (2000) 1 SCC 471.
4. Sharad Birdhichand Sarda vs. State of Maharashtra, (1984)
4 SCC 116).
5. Murarilal vs. State of M.P., AIR 1980 SC 531.
6. Lord President Cooper in Decie vs. Edinburgh Magistrate,
1953 SC 34.
7. Hanumant Govind Nargundkar & Anr. vs. State of Madhya
Pradesh, AIR 1952 SC 343.
RESULT: Appeals disposed of.
G.P. MITTAL, J.
1. These two Appeals preferred by the Appellants Jaipal and Rajender
arise out of a judgment dated 22.07.1997 and order on sentence dated
23.07.1997 passed by the learned Additional Sessions Judge (ASJ) in
Session Case No.86/1996 whereby the Appellants were held guilty and
convicted for the offence punishable under Section 302,201 and 384 IPC
read with Section 34 IPC. The Appellants were sentenced to undergo
rigorous imprisonment (RI) for life and to pay a fine of Rs. ˇ1000/-
each and in default of payment of fine to undergo RI for one month each
for the offence punishable under Section 302/34 IPC. The Appellants
were sentenced to undergo RI for 5 years each and to pay fine of Rs.
500/- each and in default of payment of fine to further undergo RI for
15 days for the offence punishable under Section 201/34 IPC. The
Appellants were further sentenced to undergo RI for 2 years and to pay
a fine of Rs. 250/- each and in default of payment of fine to further
undergo RI for 15 days each for the offence punishable under Section
384/34 IPC. The sentences were to run concurrently. By this very
judgment co-accused Om Prakash was acquitted giving him benefit of
doubt.
2. Feeling aggrieved, the Appellants have challenged the judgment
and order of conviction and sentence.
3. The Appellant Rajender was complainant Tota Ram’s brother-in-
law; The Appellant Jai Pal was his friend. The co-accused Om Prakash
(already acquitted) was also Tota Ram’s brother-in-law. The Appellant
Rajender took Rajesh (son of Tota Ram the complainant) for a ride on
his bicycle. Rajesh did not return home till 9:00 P.M. Worried by this,
the complainant went to Rajender to inquire about Rajesh. Rajender
informed Tota Ram that he had left Rajesh at Khadewali Masjid, Gautam
Vihar after handing him a one rupee note.
4. On the same day at about 11:00 p.m. Rajender reached Tota
Ram’s house and handed over a two pages letter (the ransom note
Ex.PW-12/A). Rajender informed Tota Ram that a man on a bicycle
dropped the letter on his cot asking him to deliver it to him (Tota Ram).
Tota Ram went through the contents of the letter, which contained a
demand of a ransom of Rs. 70,000/- for Rajesh’s return. Tota Ram
inquired about the description of the person who delivered the said letter.
Rajender could not give the description, citing darkness as the reason.
5. On hearing this, Tota Ram was frightened. Being a washer man
by profession he could not arrange for the money. He informed others
about the letter. He suspected Rajender as the kidnapper of his son. He
went to the Police Station Bhajanpura, handed over the ransom letter and
made a statement Ex.PW-3/A to SI Jai Kishan (first IO). SI Jai Kishan
made his endorsement, for registration of the ˇFIR. SI Jai Kishan made
search for Rajesh on 01.06.1990 but he could not be traced.
6. On 02.06.1990 Om Prakash is alleged to have made an extra
judicial confession to one Abid Ali about the kidnapping of Rajesh for
ransom by Rajender in collusion with Om Prakash and Jaipal. Abid Ali
(PW-1) went to Police Post Gamri Extension and informed SI Jai Kishan
about the same. SI Jai Kishan recorded his statement. He (the SI) along
with other Police Officials went to village Behta, Loni, Ghaziabad. After
interrogation, the Appellant Rajender was arrested. He made a disclosure
statement Ex. PW-1/G. The Appellant Jai Pal also reached Rajender’s
house; he too was arrested. He (Jai Pal) made a disclosure statement Ex.
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PW-11/D stating that he could get Rajesh’s dead body recovered from
the sugarcane fields in village Khanpur Ghari. SI Jai Kishan left for village
Khanpur Gari and reached PS Jhinjhana at about 11:30 P.M. and met SO
Brijesh Kumar. He took HC Omkar Singh and Constable Jaibir from PS
Jhinjhana and left for village Khanpur Ghari at about 12:00 midnight. The
Appellant Jai Pal led them to the sugarcane fields where the dead body
of Rajesh was lying, covered with sugarcane leaves. The dead body was
identified by Tota Ram and was seized by memo Ex. PW-3/C.
7. On 04.06.1990 autopsy on the dead body was performed by
PW-6 Dr. L. T. Ramani. PW-6 found no external injury mark on the
body. He opined the cause of death due to asphyxia on account of
suffocation.
8. After completion of the investigation a report under Section 173
Cr.P.C. was filed in the Court.
9. The Appellants’ pleaded not guilty to the charge for the offence
punishable under Section 302/201/384 read with Section 34 IPC. In
order to establish its case, the prosecution examined 15 witnesses.
10. PW-2 Nem Wati, PW-3 Tota Ram, PW-4 Ved Parkash, PW-
5 Suresh Kumar, PW-6 Dr. L.T. Ramani, PW-7 Rudra Prakash, PW-11
HC Om Pal Singe, PW-12 Inspector Jai Kishan and PW-14 Inspector
Ishwar Singh are material witnesses.
11. PW-2 Nem Wati is the mother of deceased Rajesh. She is a
witness to the deceased being last seen alive in the company of Appellant
Rajender. She ˇdeposed that five years ago at about 12:00 noon Appellant
Rajender took his son Rajesh for a ride on his bicycle. Rajesh did not
return home. They made enquiries from Rajender about Rajesh. Appellant
Rajender informed PW-2 that Rajesh was dropped near Khadewali Masjid
after giving him one rupee (note). In cross-examination, the witness
deposed that Rajender informed PW-2 that he was taking Rajesh with
him for a bicycle ride. She denied the suggestion that she had deposed
falsely.
12. PW-3 Tota Ram is Rajesh’s father. He deposed that about five
years ago at about 12:00 noon his son Rajesh was taken by Rajender (his
brother-in-law) for a ride on his bicycle. He was not present in the house
at that time. Rajesh did not return home till 9:00 P.M. He, therefore, went
to Rajender who informed him that he had left Rajesh at Khadewali
Masjid, Gautam Vihar, after handing him one rupee. This witness testified
that at about 11:00 P.M. Rajender went to his house and handed him over
a two page letter and represented that the said letter had been given to
him by a man on a cycle while he was sitting on a cot outside his house.
PW-3 inquired about the description of the man who delivered the letter.
The Appellant showed his ignorance saying that he could not notice the
description of that person due to darkness.
13. PW-3 stated that there was a demand of ransom of ` 70,000/
- with a threat to kill Rajesh, if the demand were not met. He testified
that the place of making the payment was also described in the ransom
letter. He deposed that he was a poor person engaged in ironing the
clothes and, therefore, could not arrange for the money. He showed this
letter to other persons and suspected Rajesh to be behind the kidnapping.
He, therefore, approached the police and lodged a complaint Ex. PW-3/
A. He handed over the ransom note Ex.PW-12/A to the IO which was
seized by memo Ex.PW-3/B. He deposed about the arrest of Appellants
Rajender and Jaipal and recovery of Rajesh’s dead body at the instance
of Appellant Jaipal.
14. PW-4 Ved Prakash stated that the specimen handwriting of
Appellant Jaipal on four sheets Ex.PW-4/A to PW-4/D was taken in his
presence. PW-5 Suresh Kumar was also a witness to the taking of
Appellant Jaipal’s sample handwriting. He did not support the prosecution
version and denied the suggestion that he was won over by Appellant Jai
Pal.
15. PW-7 Rudra Prakash is a witness to the recovery of Rajesh’s
dead body from his sugarcane fields. He deposed that in June, 1990 the
dead body of a child aged about 8/10 years was recovered from his
fields. He signed the seizure memo (of dead body) Ex.PW-3/C. He testified
that the memo was also signed by the father of the deceased child.
Subsequently, the Delhi Police visited the spot in his absence and prepared
a site plan. Since the witness did not support his statement recorded
under Section 161 Cr.P.C., the prosecution was permitted to cross-
examine him. In cross-examination, the witness deposed that his village’s
population was about four thousand and the distance between his house
and the village abadi was about 300 metres. He deposed that he had about
Indian Law Reports (Delhi) ILR (2011) VI DelhiJaipal v. State (G.P. Mittal, J.) 559 560
3,000 bighas of land. He showed his ignorance if Jaipal was one of the
residents of his village. He denied the suggestion that on 03.06.1990
Jaipal pointed out the place in his fields where the dead body was lying.
16. PW-11 HC Om Pal Singh is another witness to the arrest of
Appellants Rajender and Jaipal and recovery of the dead body pursuant
to the disclosure statement Ex.PW-11/D by the Appellant Jaipal from
village Ghari.
17. PW-12 Inspector Jai Kishan is the first IO. Complainant Tota
Ram met him in the Police Station on 01.06.1990 at 5:00 P.M. He
deposed that Tota Ram had produced a two page letter Ex.PW-12/A and
made a statement Ex.PW-3/A on the basis of which the FIR was registered.
He deposed about a statement by PW-1 Abid Ali that one Om Prakash
brother-in-law of Tota Ram had made an extra judicial confession regarding
his involvement and that of Rajender and Jaipal in Rajesh’s kidnapping.
He deposed about the arrest of the Appellant and the police party reaching
village Jhinjana and subsequent recovery of Rajesh’s dead body in
pursuance of the disclosure statement Ex.PW-11/D made by Appellant
Jaipal.
18. PW-14 Inspector Ishwar Singh is the second IO. He deposed
about collecting the Handwriting Expert’s report Ex.PW-14/A and filing
of the challan in the Court.
19. On closure of the prosecution evidence, the Appellants were
examined under Section 313 Cr.P.C. to afford them an opportunity to
explain the incriminating evidence. The Appellants denied the prosecution’s
allegations regarding Rajesh’s kidnapping, delivery of the ransom note by
Appellant Rajender to PW-3 Tota Ram, kidnapping of Rajesh by Appellant
Rajender, and making of any disclosure statement by them and recovery
of Rajesh’s dead body by Jaipal in pursuance of the disclosure statement
Ex.PW-11/D. They pleaded false implication.
20. By the impugned judgment, the Trial Court believed the last
seen evidence, delivery of the ransom note Ex.PW-12/A by Appellant
Rajender (in the handwriting to Appellant Jaipal) to PW-3 and recovery
of Rajesh’s dead body at the Appellant Jaipal’s instance. Thus, the Trial
Court convicted and sentenced the Appellants for the offence punishable
under Sections 384/302/201 read with Section 34 IPC as stated earlier.
21. We have heard Mr. Sameer Chandra, learned Amicus Curiae for
the Appellants, Mr. Jaideep Malik, learned Additional Public Prosecution
(APP) for the State and have perused the record.
22. The prosecution case squarely rests on circumstantial evidence.
The circumstances relied upon by the prosecution are:-
(A) Deceased being last seen alive in the company of the
Appellant Rajender;
(B) Delivery of ransom note Ex.PW-12/A in the handwriting
of Appellant Jaipal to PW-3 Tota Ram on 31.05.1990 at
11:00 P.M. by Rajender; and
(C) Disclosure statement Ex.PW-11/D made by Appellant Jaipal
and recovery of Rajesh’s dead body at Jaipal’s behest.
23. The law is well settled that where the prosecution case rests on
circumstantial evidence, the circumstances from which the conclusion of
guilt are to be drawn must, in the first instance be fully established; the
circumstances should be of conclusive nature; the circumstances taken
together must unerringly point to the guilt of an accused; the circumstances
proved on record must be incompatible with the innocence of an accused
and form the complete chain of circumstances and it must be proved that
in all probabilities the offence was committed by an accused. (Hanumant
Govind Nargundkar & Anr. v. State of Madhya Pradesh, AIR 1952
SC 343 and Sharad Birdhichand Sarda v. State of Maharashtra,
(1984)4 SCC116).
24. We shall take up the circumstances relied on by the prosecution
one by one.
CIRCUMSTANCE (A) : DECEASED BEING LAST SEEN ALIVE IN
THE COMPANY OF APPELLANT RAJENDER
25. As stated earlier, PW-2 Nem Wati is the solitary witness to
prove this circumstance. PW-2 was categorical that Rajender took Rajesh
at about 12:00 noon for a ride on his bicycle. The child did not return
and on enquiry by PW-3 Tota Ram, Rajender disclosed that Rajesh was
left at Khadewali Masjid after handing him over one rupee.
26. It is urged by the learned Amicus Curiae for the Appellants that
the testimony of this witness is unreliable in view of the fact that there
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was a delay of one day and six hours in lodging the FIR. The testimonies
of PW-1 Abid Ali and PW-2 Nem Wati are contradictory and that the
conduct of Appellant’s Rajender in helping PW-3 in Rajesh’s search
negatives the guilty mind.
27. Section 364 (A) IPC was not on the statute book on the date
of commission of the offence i.e. 31.05.1990. Thus, the FIR for an
offence under Section 384 IPC was recorded by the police. Though,
Rajesh was taken away by Rajender on 31.05.1990 at 12:00 noon, yet
there was no inkling to PW-2 Nem Wati that her child would not return.
It was only in the late evening when her husband PW-3 Tota Ram
returned from his work that she complained about Rajesh having been
taken away by Rajender. It was for this reason that PW-3 immediately
approached the Appellant Rajender, who informed PW-3 that the child
was dropped by him at Khadewali Masjid after giving him a one rupee
note. Thus, PW-2 Nem Wati may have gone to the police at about 5:00
P.M. as disclosed by PW-3 Tota Ram. No report to the police alleged
to have been made by PW-2 has been produced. As stated earlier, there
was no cause for concern till that time and it was possible that Nem Wati
might have been advised to wait for the return of Rajender along with
the child. It was only on the next day when Tota Ram was unable to
arrange the funds and at the same time was worried about the safety of
his child, finding no other option that he approached the police at about
5:00 P.M. Thus, non production of the report alleged to have been made
by PW-2 to the police at about 5:00 P.M. on 31.05.1990 is not material.
In the circumstances, it cannot be said that there was a delay of one day
and six hours in lodging the FIR. ˇOf course, there was a delay of about
17-18 hours from the time PW-3 came to know of Rajesh’s kidnapping
on 31.05.1990 at about 11:00 P.M. 28. The Court cannot be oblivious
of the fact that all parents whether rich or poor are more concerned
about the safety of their child than any action being taken against the
culprit. A perusal of PW-3’s testimony shows that he was in shock to
receive the ransom letter. PW-3 testified that he was a poor man and,
therefore, could not arrange for the sum of Rs. 70,000/-. He then brought
this fact to the notice of other persons and approached the police. In our
view, the delay of 17-18 hours has been adequately explained by PW-3
Tota Ram in approaching the police and making a report regarding the
kidnapping and receipt of a ransom note.
29. It is urged that PW-1 Abid Ali before whom co-accused Om
Prakash (already acquitted) allegedly made an extra judicial confession
deposed that Om Prakash told him that he (Om Prakash) had handed
over Rajesh to the co-accused (the Appellants herein). The extra judicial
confession has been disbelieved by the Trial Court. We do not know the
exact manner of kidnapping and the conspiracy, if any, hatched amongst
the accused persons. Since the confession made by co-accused Om
Prakash to PW-1 Abid Ali was disbelieved, it cannot be said that there
is a contradiction in the manner of kidnapping. The prosecution has not
been able to produce any evidence of actual kidnapping and relies upon
last seen evidence from which an appropriate inference may be drawn
against the Appellants.
30. It is argued by the learned Amicus Curiae that Rajender’s
conduct was compatible with his innocence. Had he kidnapped the child,
he would not have accompanied PW-3 in Rajesh’s search upto 11:00
P.M. We do not find any substance in the contention. Since the Appellant
Rajender took the child at 12:00 noon, perhaps he wanted to remove the
needle of suspicion away from him. Thus, Rajender’s conduct in joining
PW-3 in Rajesh’s search does not absolve him to render an explanation
as to where he left Rajesh after he took the child for a ride on his bicycle.
31. It is argued by the learned Amicus Curiae that Appellant Rajender
knew PW-3’s means and, therefore, it was highly improbable that he in
collusion with any other ˇperson would ask for a ransom of Rs. 70,000/
- . It is submitted that if Rajender had any intention to commit the crime,
he would not have taken away the deceased in presence of his mother
PW-2 Nem Wati. This contention also does not hold much water.
Sometimes a kidnapper asks for more than what a victim’s relatives can
afford to pay for release of their kith and kin. There may have been some
miscalculation on the part of the culprits. The contention that Rajender
knew the complainant’s financial capacity and could not have asked for
a ransom of Rs. 70,000/-, in our view, therefore, has to be rejected.
Similarly, the contention that Rajender would not have taken the child in
her presence is also without any merit as he might have thought that his
explanation that he dropped Rajesh near the Masjid would be believed.
32. It is urged by the Appellants’ counsel that the explanation of
parting company with Rajesh had come in the prosecution version itself
Indian Law Reports (Delhi) ILR (2011) VI DelhiJaipal v. State (G.P. Mittal, J.) 563 564
and thus, no value can be attached to Rajesh being last seen in the
Appellant Rajender’s company.
33. It is true that according to the prosecution allegation of the
Appellant Rajender held out to PW-3 Tota Ram that he left Rajesh near
Khadewali Masjid after handing him a one rupee note. No suggestion to
the contrary was given to PW-3 in his cross-examination. However,
when examined under Section 313 Cr.P.C. the Appellant denied that he
took Rajesh from PW-2 on 31.05.1990 at 12:00 noon on the pretext of
giving him a bicycle ride.
34. PW-2 Nem Wati is the deceased’s mother. There is no reason
for her to lie about the fact of Rajender taking Rajesh for a ride. It is true
that there is no corroboration of PW-2’s testimony; perhaps none was
possible in the circumstances under which Appellant Rajender took the
child away. We find PW-2’s testimony to be credible and reliable and
hold that on 31.05.1990 at about 12:00 noon Rajender took away Rajesh
on the pretext of a bicycle ride and thereafter the child did not return.
The Appellant has not offered any explanation as to how he parted
Rajesh’s company. This circumstance is established against the Appellant
Rajender.
CIRCUMSTANCE (B) : DELIVERY OF RANSOM NOTE EX.PW-12/
A IN THE HANDWRITING OF APPELLANT JAIPAL TO PW-3
TOTA RAM ON 31.05.1990 AT 11:00 P.M.
35. This circumstance can be divided into two parts. (a) Allegation
of delivery of a ransom note Ex.PW-12/A by Appellant Rajender to PW-
3 in the late night of 31.05.1990, and (b) the ransom note Ex.PW-12/A
in the handwriting of Appellant Jaipal.
36. As stated earlier, PW-3 testified about the delivery of a ransom
note Ex.PW-12/A by Rajender to him. PW-3 asked for description of the
person who delivered the ransom note. The Appellant was evasive about
it and stated that he could not notice the description as it was dark at
that time.
37. It is argued by learned counsel for the Appellants that PW-2
Nem Wati is silent about the delivery of any ransom letter, although PW-
3 mentioned in the FIR that he told about this letter to his wife. It is
pointed out that the statement of PW-3 on the delivery of ransom letter
is contrary. It is argued that initially PW-3 deposed that “the accused
Rajinder gave me a letter of two pages and told me that he had been
given the said letter by a man on cycle when he was sitting outside the
house on a cot. He had further told me that the said man had told him
to give the above letter to me.” Later on, during his deposition PW-3
deposed that “the letter of ransom was received by us at our house and
was delivered by Rajinder to me saying that some person had thrown this
ransom letter in our house.
38. The Appellants highlighted the words “giving the letter” or
“throwing the letter” by PW-3 allegedly narrated to him by Appellant
Rajender. In our view, the power of observation and narration of
individuals diminishes with the passage of time. Some people do not take
note of minute details. The crux of the matter is the delivery of the
ransom letter by Appellant Rajender to PW-3 and the Appellant’s claim
that it was given to him by an unknown person. The statement of PW-
3 was recorded in the year 1996 whereas the incident took place in 1990.
The power of recapitulation/reproduction diminishes with the passage of
time, particularly, when a witness is a rustic washer man like PW-3. In
these circumstances, we do not attach any importance to this so called
discrepancy. Moreover, this argument loses significance as the Appellant
Rajender did not admit the delivery of this letter by him to PW-3.
39. It is argued that PW-3 did not identify the ransom note when
he was examined in the Court. This is also not material as there was a
lapse on the part of the APP who examined an illiterate witness in the
Court. This is not a case where the witness was unable to identify the
letter after having been shown it. On the other hand, the letter was not
put to PW-3 at all. Similarly, the argument that there is no mention in the
seizure memo Ex.PW-3/B that the letter was handed over by PW-3 Tota
Ram is not material as the fact is mentioned in the FIR which was
recorded contemporaneously.
40. Now the question for consideration is whether the Appellant
Jaipal is the scribe of this ransom note Ex.PW-12/A. It is argued by
learned counsel for the Appellants that the handwriting expert’s report
Ex.PW-14/A is not admissible in evidence as Shri T.R. Nehra was only
a Senior Scientific Officer as far as his qualification as a handwriting
expert is concerned. As per Section 293 any document purported to be
a report under the hand of a Government Scientific Expert is per se
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admissible in evidence, provided he (Scientific Expert) falls under any of
the categories A to G given in sub-Section 4 to Section 293. A Chemical
Examiner or an Assistant Chemical Examiner is one such designated
Govt. Scientific Expert. Shri T.R. Nehra who is a Scientific Expert in
this case is also designated as Assistant Chemical Examiner to the
Government of India and, therefore, his report is per se admissible in
evidence. Of course, the Appellants had a right to summon such an
expert but they did not prefer to avail it. The Appellants, therefore,
cannot be permitted now to say that the report of a handwriting expert
required a specific proof and inadmissible in evidence. The value to be
attached to this report shall be dealt with by us a little later.
41. It is argued on behalf of the Appellants that there is no
corroboration to the handwriting expert’s opinion Ex.PW-14/A. The opinion
of an expert is fallible as anyone else and, therefore, unless there was
some corroboration to show that the Appellant Jaipal was the scribe of
the ransom note, the Court, on the basis of the expert opinion could not
conclude that Jaipal was the author thereof. It is urged that PW-5, in
whose presence Jaipal’s handwriting is alleged to have been taken, turned
hostile and thus, even this is doubtful whether Ex.PW-4/A was Jaipal’s
specimen handwriting.
42. The prosecution examined PWs 4 and 5 to prove the specimen
handwriting of Jaipal. PW-5 turned hostile. PW-4 Ved Prakash testified
that the Jaipal’s handwriting Ex.PW-4/A to PW-4/D on four sheets was
taken in his presence. Nothing was elicited in the cross-examination of
PW-4 to show that Jaipal’s handwriting was not taken in his presence
and, therefore, irrespective of PW-5’s turning hostile, we are inclined to
believe PW-4 and hold that the Appellant Jaipal gave his specimen
handwriting Ex.PW-4/A to Ex.PW-4/D.
43. It is urged that the police did not have any power to take an
accused’s handwriting under Section 73 of the Evidence Act; the Appellants
rely on Section 311-A Criminal Procedure Code (Cr.P.C.) which empowers
a Magistrate of the First Class to order an accused person to give his
specimen signatures or handwriting. It is argued that Section 311-A was
incorporated in the statute book only w.e.f. 23.06.2006 and is not
retrospective in its application. It will not relate back to an offence
alleged to have been committed in the year 1990 and since Section 73
of the Evidence Act is not applicable, the police did not have any authority
to taken Appellant’s handwriting during investigation.
44. We do not agree with this submission. This is true that under
Section 73 of the Evidence Act, the Court can direct a handwriting
sample of any person only during inquiry or trial to be taken. The law
is well settled that obtaining the handwriting of an accused during
investigation is not hit by Article 20 (3) of the Constitution of India as
an accused cannot be said to be a witness against himself, if he is asked
to give his handwriting for the purpose of verification of any document
purported to be in his handwriting. In Selvi v. State of Karnataka,
(2010) 7 SCC 263, a Five Judges Bench of the Supreme Court held that
some forms of testimonial acts lie outside the scope of Article 20 (3).
Certain acts like compulsorily obtaining specimen signatures and
handwriting samples are testimonial in nature, they are not incriminatory
by themselves if they are used for the purpose of identification or
corroboration of the facts that are already in prosecuting agency’s
knowledge. It was held that obtaining handwriting of an accused for
corroboration of the facts already known is thus not barred under Article
20 (3).
45. Section 311-A allows the Court to order an accused to give his
handwriting during enquiry or investigation. These powers were not
available with the Court before Section 311-A was brought to the statute
book in the year 2006. An addition of Section 311-A merely empowered
the Court to order an accused to give his handwriting/signatures for the
purpose of investigation of his questioned handwriting/signatures which
power was not available to the Court as according to Section 73, the
Court can order for comparison of signatures/handwriting etc. of any
person whose signatures / handwriting is in dispute before the Court. In
this circumstances, it cannot be said that obtaining Appellant Jaipal’s
handwriting during investigation was illegal.
46. It is true that except the handwriting Expert’s report Ex.PW-
4/A there is no corroboration that the ransom letter Ex.PW-12/A was in
the handwriting of Appellant Jaipal. The question was dealt in detail by
the Supreme Court in Murarilal v. State of M.P., AIR 1980 SC 531.
The Court observed that handwriting expert is not an accomplice and
there is no justification for condemning his opinion evidence. It was held
that if the Court is convinced from the report of an expert that the
Indian Law Reports (Delhi) ILR (2011) VI Delhi567 568Jaipal v. State (G.P. Mittal, J.)
questioned handwriting was of the accused, there is no difficulty in
relying upon the expert’s opinion without any corroboration. We would
like to extract relevant para of the report in Murarilal (supra) hereunder:-
“4. We will first consider the argument, a State arguments often
heard particularly in criminal courts, that the opinion-evidence of
a handwriting expert should not be acted upon without substantial
corroboration. We shall presently point out how the argument
cannot be justified on principle or precedent. We begin with the
observation that the expert is no accomplice. There is no
justification for condemning his opinion-evidence to the same
class of evidence as that of an accomplice and insist upon
corroboration. True, it has occasionally been said on very high
authority that it would be hazardous to base a conviction solely
on the opinion of a handwriting expert. But, the hazard in accepting
the opinion of any expert, handwriting expert or any other kind
of expert, is not because experts, in general, are unreliable
witnesses- the equality of credibility or incredibility being one
which an expert shares with all other witnesses-but because all
human judgment is fallible and an expert may go wrong because
of some defect of observation, some error of premises or honest
mistake of ˇconclusion. The more developed and the more
perfect a science, the less the chance of an incorrect opinion and
the converse if the science is less developed and imperfect. The
science of identification of finger-prints has attained near
perfection and the risk of an incorrect opinion is practically non-
existent. On the other hand, the science of identification of
handwriting is not nearly so perfect and the risk is, therefore,
higher. But that is far cry from doubting the opinion of a
handwriting expert as an invariable rule and insisting upon
substantial corroboration in every case, howsoever the opinion
may be backed by the soundest of reasons. It is hardly fair to
an expert to view his opinion with an initial suspicion and to treat
him as an inferior sort of witness. His opinion has to be tested
by the acceptability of the reasons given by him. An expert
deposes and not decides. His duty ‘is to furnish the judge with
the necessary scientific criteria for testing the accuracy of his
conclusion, so as to enable the judge to form his own independent
judgment by the application of these criteria to the facts proved
in evidence’. (Vide Lord President Cooper in Decie v.
Edinburgh Magistrate, 1953 SC 34 quoted by Professor Cross
in his Evidence).
6. Expert testimony is made relevant by S.45 of the Evidence
Act and where the court has to form an opinion upon a point as
to identity of handwriting, the opinion of a person ‘specially
skilled’ ‘in questions as to identity of handwriting’ is expressly
made a relevant fact. There is nothing in the Evidence Act, as
for example like Illustration (b) to Section 114 which entitles the
Court to presume that an accomplice is unworthy of credit,
unless he is corroborated in material particulars, which justifies
the court in assuming that a handwriting expert’s opinion is
unworthy of credit unless corroborated. The Evidence Act itself
(S.3) tells us that ‘a fact is said to be proved when, after
considering the matters before it, the Court either believes it to
exist or considers its existence so probable that a prudent man
ought, under the circumstances of the particular case, to act
upon the supposition that it exists’. It is necessary to occasionally
remind ourselves of this interpretation clause in the Evidence Act
lest we act on artificial standard of proof not warranted by the
provisions of the Act. Further, under S.114 of the Evidence Act,
the Court may presume the existence of any fact which it thinks
likely to have happened, regard being had to the common course
of natural events, human conduct, and public and private business,
in their relation to facts of the particular case. It is also to be
noticed that S.46 of the Evidence ˇAct makes facts, not otherwise
relevant, relevant if they support or are inconsistent with the
opinion of experts, when such opinions are relevant. So,
corroboration may not invariably be insisted upon before acting
on the opinion of an handwriting expert and there need be no
initial suspicion. But, on the facts of a particular case, a court
may require corroboration of a varying degree. There can be no
hard and fast rule, but nothing will justify the rejection of the
opinion of an expert supported by unchallenged reasons on the
sole ground that it is not corroborated. The approach of a court
while dealing with the opinion of a handwriting expert, should be
to proceed cautiously, probe the reasons for the opinion, consider
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all other relevant evidence and decide finally to accept or reject
it.
11. We are firmly of the opinion that there is no rule of law, nor
any rule of prudence which has crystallized into a rule of law,
that opinion evidence of a handwriting expert must never be
acted upon, unless substantially corroborated. But, having due
regard to the imperfect nature of the science of identification of
handwriting, the approach, as we indicated earlier, should be one
of caution. Reasons for the opinion must be carefully proved and
examined. All other relevant evidence must be considered. In
appropriate cases, corroboration may be sought. In cases where
the reasons for the opinion are convincing and there is no reliable
evidence throwing a doubt, the uncorroborated testimony of an
handwriting expert may be accepted. There cannot be any
inflexible rule on a matter which, in the ultimate analysis, is no
more than a question of testimonial weight. We have said so
much because this is an argument frequently met with in
subordinate courts and sentences torn out of context from the
judgments of this Court are often flaunted.
12. The argument that the Court should not venture to compare
writings itself, as it would thereby assume to itself the role of
an expert is entirely without force. Section 73 of the Evidence
Act expressly enables the Court to compare disputed writings
with admitted or proved writings to ascertain whether a writing
is that of the person by whom it purports to have been written.
If it is hazardous to do so, as sometimes said, we are afraid it
is one of the hazards to which judge and litigant must expose
themselves whenever it becomes necessary. There may be cases
where both sides call experts and the voices of science are heard
there may be cases where neither side calls an expert, being ill
able to afford ˇhim. In all such cases it becomes the plain duty
of the Court to compare the writings and come to its own
conclusion. The duty cannot be avoided by recourse to the
statement that the court is no expert. Where there are expert
opinions, they will aid the Court. Where there is none, the Court
will have to seek guidance from some authoritative textbook and
the Court’s own experience and knowledge. But discharge it
must, its plain duty, with or without expert, with or without
other evidence. We may mention that Shashi Kumar v. Subodh
Kumar and Fakruddin v. State of Madhya Pradesh were
cases where the Court itself compared the writings.”
47. The report in Murarilal (supra) was relied upon in a latest
judgment of the Supreme Court in Ravichandran v. State (2010) 11 SCC
120, wherein it was held that if the reasons given for the opinion by the
expert are convincing and there is no reliable evidence throwing a doubt,
the uncorroborated testimony of a handwriting expert may be accepted.
48. We have carefully gone though the ransom note Ex.PW-12/A
and the specimen handwriting given on four sheets Ex.PW-4/A to PW-
4/D and have also examined the report Ex.PW-14/A of the expert Shri
T.R. Nehra, the Senior Scientific Officer-cum-Assistant Chemical Examiner
to the Government of India. He has given detailed reasons why he
concluded that the questioned handwriting matched with the specimen
handwriting (of Appellant Jaipal). We have carefully perused the words
“SHUROO, BEES, BAZAR, RUPAIE, MAAR, GHAZIABAD, GHALE,
HOSHIARI, TAARIKH” in Ex.PW-12/A and Ex.PW-4/A to Ex.PW-4/D
and are convinced that it has the same style of handwriting. Thus, we
have no hesitation to conclude that the ransom note Ex.PW-12/A is in
Appellant Jaipal’s handwriting.
CIRCUMSTANCE (C) : DISCLOSURE STATEMENT EX.PW-11/D
MADE BY APPELLANT JAIPAL AND RECOVERY OF RAJESH’S
DEAD BODY AT JAIPAL’S BEHEST
49. PW-3 Tota Ram, PW-7 Rudra Prakash, PW-11 HC Om Pal
Singh and PW-12 Inspector Jai Kishan are the witnesses to the recovery
of Rajesh’s dead body. PWs 3, 11 and 12 have fully supported the
prosecution version that in pursuance of the disclosure statement Ex.PW-
11/D Rajesh’s dead body was got recovered by Appellant Jaipal from
PW-7’s sugarcane fields. The visit of Inspector Jai Kishan along with the
police party of Delhi Police to PS Jhinjhana is corroborated by the
testimony of PW-13 HC C.V. Singh of U.P. Police and the DD entry in
the Police Station regarding arrival and departure Ex.PX and Ex.PX/2
respectively. PW-7 who did not support the prosecution version fully but
corroborated PWs 3, 11 and 12 regarding recovery of dead body of a
child from his sugarcane fields in the month of June, 1990. PW-7 also
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deposed about presence of Delhi Police personnel and the seizure of the
dead body by memo Ex.PW-3/C which was signed by him at Point X.
PW-3 clearly deposed that the dead body was recovered from Rudra
Prakash’s fields at the instance of Appellant Jaipal. It is, therefore, apparent
that PW-7 did not support the prosecution version regarding presence of
Jaipal as he was won over by the Appellants.
50. In view of the testimony of PW-3 which is fully corroborated
by PWs 11 and 12 and partially corroborated by PW-7, it is established
that the Rajesh’s dead body was recovered at the instance of Appellant
Jaipal. It is urged on Appellants’ behalf that the recovery of the dead
body should not be believed as there is discrepancy in PW-3’s testimony
vis-a-vis the official witness about the manner of Jaipal’s arrest. It is true
that PW-3 deposed that the Appellant Rajender took them to the house
of Jaipal, whereas PWs 11 and 12 have stated that Jaipal reached the
Appellant Rajender’s house on his own. As observed by us earlier, the
incident took place in the year 1990 whereas the testimony of PW-3 was
recorded in the year 1996. PW-3 is a villager, a washer man by profession
and could have mixed up certain things with the lapse of time. We,
therefore, believe the prosecution version that Appellant Jaipal was arrested
at Rajender’s house after his (Rajender’s) arrest. This part of the disclosure
statement Ex.PW-13/D regarding his knowledge as to the dead body
becomes relevant.
51. It is urged by the learned counsel for the Appellants that the
dead body was recovered from the sugarcane fields which was accessible
to the public at large and the Appellant Jaipal cannot be saddled with the
liability of exclusive knowledge. It is true that the dead body was recovered
from an open field. But, it has emerged from evidence that the dead body
was covered by sugarcane leaves. The cross-examination of PW-7
discloses that the sugarcane fields measured 3000 bighas and it was at
a distance of about 300 yards from the abadi. In view of these
circumstances, it cannot be said that the villagers were aware of the
ˇpresence of the dead body or that it was not a discovery in pursuance
of the Appellant Jaipal’s disclosure statement Ex.PW-11/D.
52. In State of Maharashtra v. Suresh, (2000) 1 SCC 471, it was
held that when a dead body is recovered at the instance of an accused
there can be three possibilities. Firstly, that it was concealed by the
accused himself. Second, that he would have seen somebody else
concealing it and, third, that he would have been told by another person
that it was concealed there. The Appellant has not given any explanation
how he came to know about the presence of the dead body in PW-7’s
sugarcane fields and, therefore, has to explain Rajesh’s death.
53. It is argued by the Appellants’ counsel that the prosecution
failed to produce any evidence that the death was homicidal. In the
circumstances, Appellant Jaipal cannot be held responsible for Rajesh’s
death. The learned counsel has taken us through the testimony of PW-
6 Dr. L.T. Ramani and the postmortem report Ex.PW-6/A to emphasis
that “hyoid bone and thyroid cartilage were intact”. Dr. L.T. Ramani
opined “the death in this case was due to asphyxia which apparently
looked due to suffocation”. Admittedly, there was no obvious external
injury mark on the deceased’s body. It has been urged on behalf of the
Appellants that since death is not proved to be homicidal, Appellant Jaipal
cannot be held guilty of the offence punishable under Section 302 IPC.
54. We have held earlier that the Appellant Jaipal was aware of the
presence of the dead body in the sugarcane fields and has to account for
Rajesh’s death unless he gives any explanation how he came to know of
the dead body. It is true that cause of death given by Dr. L.R. Ramani
to be asphyxia due to suffocation. There is no specific finding of
strangulation by the doctor because of absence of the fracture of hyoid
bone and thyroid cartilage. A similar question came up for consideration
before the Supreme Court in Ponnusamy v. State of Tamil Nadu,
(2008) 5 SCC 587, the Supreme Court referred to Taylor’s Principles
and Practice of Medical Jurisprudence, 13th Edition and Journal of Forensic
Sciences, Volume 41 and opined that fracture of hyoid bone is not
necessary in the case of strangulation. An inference of strangulation was
drawn in the absence of any explanation from the accused even though
there was no apparent mark on the dead body. We would like to extract
paras 23 and 24 of the report hereunder:-
23. It is true that the autopsy surgeon, PW-17, did not find any
fracture on the hyoid bone. Existence of such a fracture leads
to a conclusive proof of strangulation but absence thereof does
not prove contra. In Taylor's Principles and Practice of Medical
Jurisprudence, 13th Edition, pp. 307-308, it is stated:
“The hyoid bone is 'U' shaped and composed of five
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parts: the body, two greater and two lesser horns. It is
relatively protected, lying at the root of the tongue where
the body is difficult to feel. The greater horn, which can
be felt more easily, lies behind the front part of the strip-
muscles (sternomastoid), 3 cm below the angle of the
lower jaw and1.5 cm from the midline. The bone ossifies
from six centres, a pair for the body and one for each
horn. The greater horns are, in early life, connected to the
body by cartilage but after middle life they are usually
united by bone. The lesser horns are situated close to the
junction of the greater horns in the body. They are
connected to the body of the bone by fibrous tissue and
occasionally to the greater horns by synovial joints which
usually persist throughout life but occasionally become
ankylosed”.
Our own findings suggest that although the hardening of the
bone is related to age there can be considerable variation and
elderly people sometimes show only slight ossification.
From the above consideration of the anatomy it will be appreciated
that while injuries to the body are unlikely, a grip high up on the
neck may readily produce fractures of the greater horns.
Sometimes it would appear that the local pressure from the
thumb causes a fracture on one side only.
While the amount of force in manual strangulation would often
appear to be greatly in excess of that required to cause death, the
application of such force, as evidenced by extensive external and
soft tissue injuries, make it unusual to find fractures of the hyoid
bone in a person under the age of 40 years.
As stated, even in older people in which ossification is incomplete,
considerable violence may leave this bone intact. This view is
confirmed by Green. He gives interesting figures: in 34 cases of
manual strangulation the hyoid was fractured in 12 (35%) as
compared with the classic paper of Gonzales who reported four
fractures in 24 cases. The figures in strangulation by ligature
show ˇthat the percentage of hyoid fractures was 13. Our own
figures are similar to those of Green."
24. In 'Journal of Forensic Sciences' Vol.41 under the title -
Fracture of the HyoiJaipal v. State (G.P. Mittal, J.d Bone in
Strangulation: Comparison of Fractured and Unfractured Hyoids
from Victims of Strangulation, it is stated:
“The hyoid is the U-shaped bone of the neck that is
fractured in one-third of all homicides by strangulation.
On this basis, postmortem detection of hyoid fracture is
relevant to the diagnosis of strangulation. However, since
many cases lack a hyoid fracture, the absence of this
finding does not exclude strangulation as a cause of death.
The reasons why some hyoids fracture and others do not
may relate to the nature and magnitude of force applied
to the neck, age of the victim, nature of the instrument
(ligature or hands) used to strangle, and intrinsic anatomic
features of the hyoid bone. We compared the case profiles
and xeroradiographic appearance of the hyoids of 20 victims
of homicidal strangulation with and without hyoid fracture
(n = 10, each). The fractured hyoids occurred in older
victims of strangulation (39+14 years) when compared to
the victims with unfractured hyoids (30 +10 years). The
age dependency of hyoid fracture correlated with the degree
of ossification or fusion of the hyoid synchondroses. The
hyoid was fused in older victims of strangulation (41+12
years) whereas the unfused hyoids were found in the
younger victims (28+10 years). In addition, the hyoid
bone was ossified or fused in 70% of all fractured hyoids,
but, only 30% of the unfractured hyoids were fused. The
shape of the hyoid bone was also found to differentiate
fractured and unfractured hyoids. Fractured hyoids were
longer in the anterior-posterior plane and were more steeply
sloping when compared with unfractured hyoids. These
data indicate that hyoids of strangulation victims, with
and without fracture, are distinguished by various indices
of shape and rigidity. On this basis, it may be possible to
explain why some victims of strangulation do not have
fractured hyoid bones.”
55. In view of Ponnusamy (supra) we have no doubt that in the
Indian Law Reports (Delhi) ILR (2011) VI Delhi575 576Jaipal v. State (G.P. Mittal, J.)
absence of any specific mark of injury on the dead body when the death
was found by Dr. L.T. ˇRamani due to asphyxia on account of suffocation
it was only on account of strangulation.
56. In view of the above said discussion, we are of the view that
an inference of common intention to kidnap Rajesh for ransom can be
drawn against both the Appellants. However, it would be difficult to say
that Appellant Rajender shared the common intention to commit Rajesh’s
murder.
57. Section 364 (A) IPC was not on the statute book at the time
of commission of the offence. Unfortunately, a charge under Section 363
was also not framed by the Trial Court. It would not be appropriate to
remand the case for framing fresh charge against the Appellants after a
lapse of more than 20 years.
58. The result is that the Appeal is partly allowed as against Appellant
Rajender. His conviction and sentence for the offence punishable under
Section 384 read with section 34 IPC is maintained, whereas his conviction
for the offence punishable under Section 302/201/34 IPC is set aside.
59. The Appellant Rajender was sentenced to undergo RI for two
years and to pay fine of Rs. 250/- or in default of payment of fine to
further undergo RI for 15 days for the offence punishable under Section
384/34 IPC which he has already undergone. His Personal Bond and
Surety Bond are therefore discharged.
60. As far as the Appellant Jaipal is concerned, no interference is
required in the Trial Court order. His conviction and sentence is altered
from section 302/34 to one under Section 302 IPC. The conviction and
sentence under Section 201/34 is altered to under Section 201 IPC. His
conviction under Section 384/34 IPC is affirmed. The Appellant Jaipal
shall surrender to serve the remainder of sentence on or before 31.07.2011
before the Trial Court. The Trial Court records shall be sent back forthwith
by the Registry to ensure compliance with the directions.
61. The Appeals are disposed of in above terms.
ILR (2011) VI DELHI 576
W.P. (C)
BRAHAM PRAKASH DUTTA AND ANR. ....PETITIONERS
VERSUS
RAILWAY PROTECTION FORCE AND ORS. ....RESPONDENTS
(PRADEEP NANDRAJOG & SUNIL GAUR, JJ.)
W.P. (C) NO. : 1533/1998 DATE OF DECISION: 06.07.2011
Service Law—Pay Parity between Inspector Grade-I
(Prosecution) RPF and Senior Public Prosecutor with
CBI and Delhi Police—Petitioner working as Inspector
Grade-I (Prosecution) under RPF sought parity of pay
with Senior Public Prosecutor, CBI and Delhi Police on
the principle of equal work equal pay. Held—
Determination of pay scale-domain of executive—Court
intervention has to be slow-cannot assign itself role
of an expert-only where it is apparently manifest that
posts are identical-denial of Article 14 to those placed
in lower pay scales within the domain of writ court—
Instant case-difference in source of recruitment-
prosecution conducted by Senior Public Prosecutor
Grade I with RPF relate to petty offences unlike Public
Prosecutors with CBI and Delhi Police—Qualitative
difference in duties—Recommendation of RPF to
Finance Wing—No justification.
Suffice would it be to state that the law pertaining to
placement of posts in pay scales is: It is with the domain of
the executive to determine as to in what scale of pay a post
has to be placed and since it is a matter of expert opinion,
courts intervention has to be slow and that the court cannot
assign to itself the role of an expert. But, where it is
apparently manifest that two posts are identical, it would be
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a denial of Article 14 to those who are placed in the lower
pay scale. In said eventuality, it would be within the domain
of a writ court to issue appropriate directions. (Para 4)
Thus, it is apparent that with respect to the source of
recruitment, there is difference in the appointment of Public
Prosecutor Grade I in RPF and Senior Public Prosecutor
employed by CBI and Delhi Police. (Para 8)
It is apparent that the prosecution conducted by the Senior
Public Prosecutor Grade I with RPF relate to petty offences.
(Para 11)
We find considerable qualitative difference in the duties
performed and further note that the nature of litigation
prosecuted by the Senior Public Prosecutor Grade I is much
lower in qualitative character. (Para 13)
Law requiring complete and wholesale identity before the
principle of equal pay for equal work can be applied; this
being missing in the instant case, we are of the opinion that
the claim of the petitioner No.1 cannot be sustained.
(Para 14)
It does happen, to keep the employee happy, when money
has not flown from his pocket the employer makes a
recommendation to Finance Wing and supports the claim of
the employee. It is the Finance Wing which considers
whether the purse should be loosened or not. For the
purpose of court jurisdiction, it would be the reasoning of
the Finance Department which would matter. Similarly, it is
the reasoning of an expert body which would be considered
by the court and not of a by-standing body. That apart,
while recommending parity, Railway Protection Force simply
stated that its Prosecution Wing be brought at par with that
of Delhi Police and CBI, but gave no justification for the
same. (Para 16)
Important Issue Involved: Law requires complete and
wholesale identity before the principle of equal pay for equal
work can be applied.
[Sa Gh]
APPEARANCES:
FOR THE PETITIONERS : Mr. S.K. Dubey, Mr. Nitin Kumar
Sharma and Mr. Rahul Trivedi,
Advocates.
FOR THE RESPONDENTS : None.
CASES REFERRED TO:
1. Union of India & Ors. vs. Dinesh K.K., JT 2008 (1) SC
231.
2. State of Haryana & Anr. vs. Tilak Raj & Ors.; 2003 (6)
SCC 123.
3. State Bank of India & Anr. vs. M.R. Ganesh Babu &
Ors., 2002 (4) SCC 556.
RESULT: Writ Petition dismissed.
PRADEEP NANDRAJOG, J (Oral)
1. At the outset, it may be noted that the petitioner No.2 has died
during the pendency of the writ petition, as told to us by the learned
counsel for the petitioners, and his legal heirs have not sought substitution
by moving any application. Thus, qua petitioner No.2, the writ petition
stands dismissed as having abated.
2. We proceed to consider the matter pertaining to the claim of
petitioner No.1.
3. Working as an Inspector Grade-I (Prosecution) under RPF, the
first petitioner claims parity with the Senior Public Prosecutor working
with CBI and Delhi Police. The grievance is that Inspector Grade-I
(Prosecution) with RPF are placed in the pay scale of Rs.2000-3200, and
Senior Public Prosecutor with CBI and Delhi Police are in the pay scale
of Rs.3000-4500. Seeking parity with the Senior Public Prosecutor and
Indian Law Reports (Delhi) ILR (2011) VI Delhi579 580 Braham Prakash Dutta v. Railway Protection Force (Pradeep Nandrajog, J.)
alleging discrimination, and stated that the principle of ‘equal work : equal
pay’, stands attracted; petitioner No.1 seeks a mandamus to be issued
that he be placed in the pay scale of Rs. 3000-4500.
4. Suffice would it be to state that the law pertaining to placement
of posts in pay scales is: It is with the domain of the executive to
determine as to in what scale of pay a post has to be placed and since
it is a matter of expert opinion, courts intervention has to be slow and
that the court cannot assign to itself the role of an expert. But, where
it is apparently manifest that two posts are identical, it would be a denial
of Article 14 to those who are placed in the lower pay scale. In said
eventuality, it would be within the domain of a writ court to issue
appropriate directions.
5. As observed by the Supreme Court, in the decision reported in
2003 (6) SCC 123, State of Haryana & Anr. vs. Tilak Raj & Ors.;
it is only where there is complete and wholesale identity between a group
of employees claiming identical pay scales, only then it can be said that
the principle of ‘equal pay for equal work’ would be attracted.
6. As held in the decision reported as 2002 (4) SCC 556, State
Bank of India & Anr. vs. M.R. Ganesh Babu & Ors., equivalence of
posts has not to be judged merely with reference to mere volume of
work. The touch stone on which equivalence has to be determined would
be to consider the source of recruitment, educational and other qualifications
required, as also the qualitative as also the quantitative nature of jobs.
7. Proceeding on the facts, it would be relevant to note that as per
the writ petitioner, Public Prosecutor Grade-II are appointed under RPF
having LL.B. degree with 5 years work experience as an advocate and
their counter parts under CBI and Delhi Police required, apart from a
LL.B degree with 7 years work experience as an advocate. Appointment
of Public Prosecutor Grade I in RPF is by promotion from Public
Prosecutor Grade II. Appointment as Senior Public Prosecutor under
CBI and Delhi Police is from amongst those advocates who, apart from
having a bachelor degree in law have 7 years work experience.
8. Thus, it is apparent that with respect to the source of recruitment,
there is difference in the appointment of Public Prosecutor Grade I in
RPF and Senior Public Prosecutor employed by CBI and Delhi Police.
9. With respect to the nature of the job to be performed, as pleaded
by the writ petitioner, Public Prosecutor Grade I with RPF deal with
prosecution only with respect to 26 offences as under:-
S. Section Description of Offences Maximum
N. imposition
of imprison-
ment and
fine (Rs.)
1. 137 Fraudulently travelling or 6 months 1,000
attempting to travel without
proper pass or ticket.
2. 141 Needless interference with means 1 year 1,0000
of communication.
3. 142 Penalty for transfer of tickets 3 months 500
4. 143 Penalty for unauthorized carrying 3 years 10,000
on business of procuring and
supplying of Railway tickets.
5. 144 Prohibition on hawking and 1 year 2,000
begging
6. 145 Drunkenness or nuisance 6 months 500
7. 146 Obstructing Railway Servant in 6 months 1,000
his duties
8. 147 Trespass and refusal to desist 6 months 1,000
from trespass.
9. 150 Maliciously wrecking or 2 years
attempting to wreck a train. for first
offence. 7
years for
second
offence.
Death or
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imprisonment
for life.
10. 151 Damage to or destruction of 5 years or
certain Railway Property. fine or both
11. 152 Maliciously hurting or attempting 10 years.
to hurt persons travelling by
Railway.
12. 153 Endangering safety of persons 5 years
travelling by Railway by willful
act or omission.
13. 154 Endangering safety of persons 1 year or
travelling by Railway by rash or fine or both.
negligent act or omission.
14. 155 Entering into a compartment 500
reserved or resisting entry into a
compartment not reserved.
15. 156 Travelling on roof steps or engine 3 months 500
of train.
16. 157 Altering of defacing pass or ticket. 3 months 500
17. 160 Opening or breaking a level 3 years or
crossing gate 5 years
18. 161 Negligently crossing unmanned 1 year
level crossing.
19. 162 Entering carriage or other places 500
reserved for female.
20. 164 Unlawfully bringing dangerous 3 years 1,000
goods on a Railway
21. 166 Defacing public notices 1 month 500
22. 168 Commission of offence by the 500
children endangering safety of
person travelling on Railway
23. 172 Railway servant being in a state 1 year or
of intoxication fine or both
24. 173 Abandoning train etc. without 2 years 1,000
authority
25. 174 Obstructing running of train etc. 2 years 2,000
26. 175 Endangering the safety of persons 2 years 1,000
10. It be highlighted that 15 out of 26 offences are punishable up
to 1 year or with fine. 7 out of 26 offences are punishable with
imprisonment above 1 year and up to 3 years and only 4 are punishable
with imprisonment beyond 3 years.
11. It is apparent that the prosecution conducted by the Senior
Public Prosecutor Grade I with RPF relate to petty offences.
12. We need not highlight the offences under the Indian Penal Code
which are dealt by Senior Public Prosecutors with CBI and Delhi Police.
To a person having elementary knowledge of the Indian Penal Code it
would be apparent that serious offences punishable up to death or with
life imprisonment, which are quite a few in numbers, require to be dealt
with by the Senior Public Prosecutor employed by CBI or Delhi Police.
13. We find considerable qualitative difference in the duties performed
and further note that the nature of litigation prosecuted by the Senior
Public Prosecutor Grade I is much lower in qualitative character.
14. Law requiring complete and wholesale identity before the principle
of equal pay for equal work can be applied; this being missing in the
instant case, we are of the opinion that the claim of the petitioner No.1
cannot be sustained.
15. We note the argument of learned counsel for the petitioner that
the Railway Protection Force has itself recommended to the 5th Pay
Commission that the prosecution branch be brought at par with that of
Delhi Police and Central Bureau Investigation and thus, cannot take a
Indian Law Reports (Delhi) ILR (2011) VI Delhi Braham Prakash Dutta v. Railway Protection Force (Pradeep Nandrajog, J.) 583 584
ILR (2011) VI DELHI 584
CRL. REV. P.
NORTH DELHI POWER LTD. ....PETITIONER
VERSUS
SURENDER KUMAR .....RESPONDENT
(MUKTA GUPTA, J.)
CRL. REV. P. NO. : 685/2007, DATE OF DECISION: 07.07.2011
563/2007, 564/2007 & 306/2007
Electricity Act, 2003—Section 135—Petitioner filed
complaint against Respondents for committing offence
under Section 135 of Act on basis of raids conducted
by inspection team—All inspections carried out prior
to notification of Government of NCT empowering
technical officers, Managers/Executive Engineers and
above rank officers as authorized officers—Trial Court
discharged Respondents holding inspection in
premises not made by authorized officers; so all
consequential proceedings initiated under Section 135
of Act illegal—Respondent urged any action taken on
basis of invalid raid is nullity—Held:- An evidence
even if illegally collected is admissible in evidence,
though the reliability thereof has to be tested at time
of trial—Trial Court to rehear the matter on order of
charge on basis of evidence on record and other
contentions raised by parties.
In Pooran Mal v. The Director of Inspection
(Investigation), New Delhi and others, (1974) 1 SCC
345 their Lordships laid down that the Courts of India and
England have consistently refused to exclude relevant
evidence merely because it is obtained by illegal search or
seizure. Even in the State and others v. N.M.T. Joy
Immaculate, 2004(5) SCC 729 this principle was reiterated.
stand to the contrary. It is pleaded that the department would be bound
of estoppel.
16. It does happen, to keep the employee happy, when money has
not flown from his pocket the employer makes a recommendation to
Finance Wing and supports the claim of the employee. It is the Finance
Wing which considers whether the purse should be loosened or not. For
the purpose of court jurisdiction, it would be the reasoning of the Finance
Department which would matter. Similarly, it is the reasoning of an
expert body which would be considered by the court and not of a by-
standing body. That apart, while recommending parity, Railway Protection
Force simply stated that its Prosecution Wing be brought at par with that
of Delhi Police and CBI, but gave no justification for the same.
17. Decision relied upon, being the judgment reported as JT 2008
(1) SC 231, Union of India & Ors. vs. Dinesh K.K., is not applicable
in the present case. Observations herein that the department having
accepted the principle of equal pay for equal work could not retract said
stand in the pleadings before the court, has to be understood with respect
to the fact that the department therein i.e. Assam Rifles, concurrence to
which was accorded by the Ministry of Home Affairs, had with respect
to the work of a Radio Mechanic brought out that Radio Mechanic
employed with Assam Rifles perform qualitatively and quantitatively
identical work as is performed by the Radio Mechanics in the Central
Paramilitary Forces. A complete and wholesale identity was brought out
in the recommendations made by the Assam Rifles as also the Ministry
of Home Affairs. It was under said circumstances that the Supreme
Court held that having given good reason to support the claim before the
Central Pay Commission, merely pleading to the contrary would not be
a justified ground to be taken by the department.
18. We dismiss the writ petition but refrain from imposing any
costs.
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This principle was distinguished in Ali Mustaffa Abdul
Rahman Moosa v. State of Kerala, (1994) 6 SCC 569
which was a case under the NDPS Act, for the reason that
under the NDPS Act the possession of the contraband itself
is an offence. It was thus held that the result of illegal
seizure could not be treated as evidence of possession of
the contraband. (Para 8)
Important Issue Involved: An evidence even if illegally
collectal is admissible in evidence, though the reliability
thereof has to be tested at time of trial.
[Sh Ka]
APPEARANCES:
FOR THE PETITIONER : Mr. Vikram Nandrajog and Mr.
Sushil Jaswal, Advocates.
FOR THE RESPONDENT : Mr. Ankur Sharma, Advocate.
CASES REFERRED TO:
1. Mukesh Rastogi vs. North Delhi Power Limited, 2007
(99) DRJ 108.
2. State and others vs. N.M.T. Joy Immaculate, 2004(5) SCC
729.
3. Roy V.D. vs. State of Kerala, AIR 2001 SC 137.
4. Rajeev Anand and others vs. Union of India and others,
(1998) 72 DLT 355.
5. Ali Mustaffa Abdul Rahman Moosa vs. State of Kerala,
(1994) 6 SCC 569.
6. Pooran Mal vs. The Director of Inspection (Investigation),
New Delhi and others, (1974) 1 SCC 345.
7. Herman King vs. The Queen [1969] (1) A.C. 304.
8. Kuruma vs. The Queen [1955] A.C. 197.
9. Olmstead vs. United State (1828) 277 U.S. 438.
10. Barindra Kumar Ghose and Ors. vs. Emperor I.L.R. 37
Cal 467.
RESULT: Revision petition allowed.
MUKTA GUPTA, J.
1. The short issue which arises in the present petition is whether
a prosecution case can be thrown out at the stage of charge itself on the
ground that there was no notification authorizing the concerned officer
to carry out the inspection on the date when the inspection was carried
out.
2. In these petitions complaints were filed against the Respondents
for committing the offence under Section 135 of the Electricity Act,
2003(in short ‘the Act’) on the basis of raids allegedly conducted by the
inspection teams in the premises of the Respondents on 25th September,
2003, 26th February, 2004, 12th March, 2004 and 8th January 2004
respectively. All these inspections were carried out prior to 31st March,
2004 when the notification of the Government of NCT of Delhi
(Department of Power) was issued empowering the technical officers of
the rank of managers/executive engineers and above in the departments
dealing with distribution, commercial and enforcement functions as
authorized officers for the purpose of Section 135 of the Act. The
learned trial court came to the conclusion that the officers of the
complainant could not derive any power under Regulation 25(i) to conduct
a raid on the premises in question on the relevant date under Section 135
of the Act. Since it was held that the inspection in the premises was not
made by the authorized officers so all consequential proceedings initiated
against the accused persons for the offence punishable under Section
135 of the Act were illegal and the Respondents were discharged.
3. Learned counsel on behalf of the Petitioner contends that theft
of electricity is an offence. The power to inspect a premises is inherent
in the distribution licensee that is the Petitioner. Prior to the notification
dated 31st March, 2004 there was no requirement for a statutory
notification regarding designation of officers authorized to inspect
premises. The procedure was that the inspection teams authorized by the
department used to conduct inspections and office orders dated 11th
July, 1996 and 24th December, 1996 have been placed on record in this
regard. It is contended that under Section 135(2) of the Act, the power
of inspection and prosecution is with the licensee/supplier of the electricity
that is the Petitioner. It is stated that though the notification authorizing
Indian Law Reports (Delhi) ILR (2011) VI Delhi587 588North Delhi Power Ltd. v. Surender Kumar (Mukta Gupta, J.)
a person of the rank of manager and above to conduct inspection in the
present case had been issued on 25th September, 2003, 26th February,
2004, 12th March, 2004 and 8th January, 2009 respectively and till such
time the requisite notification was issued by the State Government on
31st March, 2004 it cannot be said that no inspection to detect theft of
electricity or pilferage of energy could be carried out by the distribution
licensee. According to learned counsel for the Petitioner the learned trial
court failed to appreciate that there cannot be any vacuum in law. Reliance
is placed on Rajeev Anand and others v. Union of India and others,
(1998) 72 DLT 355 to contend that the statutory provision cannot be
held to remain a dead letter till such time the procedure is prescribed and
in the absence of procedure being prescribed the authority would be
required to follow and apply such procedure which is just, fair and
reasonable and in consonance with the principles of natural justice.
4. It is further contended that the Respondents cannot be discharged
on the ground that the inspection was invalid. This finding has to be
arrived at after the evidence is adduced in the trial and after consideration
of the entire evidence on record by the learned trial court. Reliance is
placed on Mukesh Rastogi v. North Delhi Power Limited, 2007 (99)
DRJ 108. This Court in the said decision held that even if the inspection
was not a valid inspection, the complainant has a right to prove the theft
irrespective of the said status of inspection. There is no provision under
the DERC (Metering and Billing) Regulations, 2002 stipulating that
inspections have to be carried out by officials authorized by the State
Government. The power to inspect was vested with the licensee that is
the Petitioner. It is next contended that it is well settled law of legal
jurisprudence that even an illegal inspection will not detract from the
relevancy of the evidence and the material collected during such inspection
and search. Illegality of search does not vitiate the evidence collected
during such search. The Petitioner have every right to prove the theft of
electricity by independent testimony of complainant’s witnesses dehors
the inspection report which ought to be considered by the Court and no
case for discharge of the accused is made out.
5. Learned counsel for the Respondent, on the other hand, contends
that unless the officers are authorized by a notification of the State
Government in this behalf an inspection under the Act is invalid and any
action taken on the basis of such an invalid raid is a nullity. The alleged
inspections were carried out unauthorizedly by officials of the Petitioner
and they were not carrying the authorization, identification or any other
proof that they were the authorized officers. It is contended that earlier
under the Indian Electricity Act, 1910 on the theft being detected a
complaint was lodged to the police under Section 39 as the same was
a cognizable offence and the case proceeded as a State case. However,
now as per Section 135(2) of the Act, powers have been given to the
authorized officer to conduct search and seizure as per the procedure
prescribed under sub section (3) and (4) and a complaint case procedure
has to be followed. Since these are special powers addressed to particular
persons the same cannot be delegated. It is contended that the judgments
sought to be relied upon by learned counsel for the Petitioner are not
applicable to the facts of the present case. The offence of theft is
required to be proved by the prosecution through cogent evidence. The
concept of vacuum in law is misconceived. The authorities could have
acted fast immediately on coming into force of the Act and the officers
authorized in this regard. Reliance is placed on Roy V.D. v. State of
Kerala, AIR 2001 SC 137 to contend that as under the NDPS Act a
search which is inherently illegal and lacks sanction of law cannot be the
basis of proceedings in relation to the offence similarly in the present
case of illegal search cannot be the basis of a conviction.
6. I have given my anxious consideration to the various provisions
involved. Before starting with a discussion thereon it would be relevant
to reproduce certain provisions of the Electricity Act, 2003 which are as
under:-
“OFFENCES AND PENALTIES
135. Theft of electricity.—(1) Whoever, dishonestly,—
(a) taps, makes or causes to be made any connection with
overhead, underground or underwater lines or cables, or
service wires, or service facilities of a licensee; or
(b) tampers a meter, installs or uses a tampered meter, current
reversing transformer, loop connection or any other device
or method which interferes with accurate or proper
registration, calibration or metering of electric current or
otherwise results in a manner whereby electricity is stolen
or wasted; or
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(c) damages or destroys an electric meter, apparatus,
equipment, or wire or causes or allows any of them to be
so damaged or destroyed as to interfere with the proper
or accurate metering of electricity; or
so as to abstract or consume or use electricity shall be punishable
with imprisonment for a term which may extend to three years
or with fine or with both:
Provided that in a case where the load abstracted,
consumed, or used or attempted abstraction or attempted
consumption or attempted use -
(i) does not exceed 10 kilowatt, the fine imposed on first
conviction shall not be less than three times the financial
gain on account of such theft of electricity and in the
event of second or subsequent conviction the fine imposed
shall not be less than six times the financial gain on account
of such theft of electricity;
(ii) exceeds 10 kilowatt, the fine imposed on first conviction
shall not be less than three time the financial gain on
account of such theft of electricity and in the event of
second or subsequent conviction, the sentence shall be
imprisonment for a term not less than six months, but
which may extend to five years and with fine not less
than six times the financial gain on account of such theft
of electricity:
Provided further that if it is proved that any artificial
means or means not authorised by the Board or licensee
exist for the abstraction, consumption or use of electricity
by the consumer, it shall be presumed, until the contrary
is proved, that any abstraction, consumption or use of
electricity has been dishonestly caused by such consumer.
(2) Any officer authorised in this behalf by the State
Government may —
(a) enter, inspect, break open and search any place or premises
in which he has reason to believe that electricity (has been
or is being), used unauthorisedly;
(b) search, seize and remove all such devices, instruments,
wires and any other facilitator or article which has been,
is being used for unauthorised use of electricity;
(c) examine or seize any books of account or documents
which in his opinion shall be useful for or relevant to, any
proceedings in respect of the offence under sub-section
(1) and allow the person from whose custody such books
of account or documents are seized to make copies thereof
or take extracts therefrom in his presence.
(3) The occupant of the place of search or any person on his
behalf shall remain present during the search and a list of
all things seized in the course of such search shall be
prepared and delivered to such occupant or person who
shall sign the list:
Provided that no inspection, search and seizure of
any domestic places or domestic premises shall be carried
out between sunset and sunrise except in the presence of
an adult male member occupying such premises.
(4) The provisions of the Code of Criminal Procedure, 1973,
relating to search and seizure shall apply, as far as may
be, to searches and seizure under this Act.’’
185. Repeal and saving: —(1) Save as otherwise provided in this
Act, the Indian Electricity Act, 1910 (9 of 1910), the Electricity
(Supply) Act, 1948 (54 of 1948) and the Electricity Regulatory
Commissions Act, 1998 (14 of 1998) are hereby repealed.
(2) Notwithstanding such repeal, -
(e) all directives issued, before the commencement of this Act,
by a State Government under the enactments specified in the
Schedule shall continue to apply for the period for which such
directions were issued by the State Government.
(3) The provisions of the enactments specified in the Schedule,
not inconsistent with the provisions of this Act, shall apply to the
States in which such enactments are applicable.
(5) Save as otherwise provided in sub-section (2), the mention
Indian Law Reports (Delhi) ILR (2011) VI Delhi591 592North Delhi Power Ltd. v. Surender Kumar (Mukta Gupta, J.)
of particular matters in that section, shall not be held to prejudice
or affect the general application of section 6 of the General
Clauses Act, 1897 (10 of 1897), with regard to the effect of
repeals.’’
7. It would be thus seen that by Section 135 (1) of the Act inter
alia defines theft of electricity as dishonestly tapping or making any
connection with overhead, underground of cables or service facilities of
a licensee. The possession of the electricity vests with the licensee and
by virtue of sub-Section 2 this power of the licensee to search and seize
is required to be delegated to an officer authorized in this behalf by the
State Government. The power to delegate the authority to search and
seize in an officer does not take away the proprietary rights of the
licensee. Moreover, in terms of Section 185(2)(a) all earlier directives
and orders issued are saved till such time a new notification or office
orders come into force. In this regard it may be noted that even prior
to coming into force of the Act of 2003 there were office orders issued
from time to time for inspection of the premises. Reference is made to
the office order dated 11th July, 1996 whereby the authority was delegated
to the AE zone for checking and inspection.
8. There is yet another ground on which the impugned order needs
to be set aside. It is well settled law of criminal jurisprudence that an
evidence even if illegally collected is admissible in evidence, though the
reliability thereof has to be tested at the time of trial. In Pooran Mal v.
The Director of Inspection (Investigation), New Delhi and others,
(1974) 1 SCC 345 their Lordships laid down that the Courts of India and
England have consistently refused to exclude relevant evidence merely
because it is obtained by illegal search or seizure. Even in the State and
others v. N.M.T. Joy Immaculate, 2004(5) SCC 729 this principle was
reiterated. This principle was distinguished in Ali Mustaffa Abdul
Rahman Moosa v. State of Kerala, (1994) 6 SCC 569 which was a
case under the NDPS Act, for the reason that under the NDPS Act the
possession of the contraband itself is an offence. It was thus held that
the result of illegal seizure could not be treated as evidence of possession
of the contraband. The learned trial court failed to notice this distinction
and applied the principle of law laid down in Roy V.D. v. State of
Kerala (supra) which was a case of under the NDPS Act. It would be
relevant to reproduce the relevant portion of Pooran Mal (supra) which
is as under:-
‘‘24. So far as India is concerned its law of evidence is modelled
on the rules of evidence which prevailed in English law, and
courts in India and in England have consistently refused to exclude
relevant evidence merely on the ground that it is obtained by
illegal search or seizure. In Barindra Kumar Ghose and Ors.
v. Emperor I.L.R. 37 Cal 467 the learned Chief Justice Sir
Lawrence Jenkins says at page 500 : “Mr. Das has attacked the
searches and has urged that, even if there was jurisdiction to
direct the issue of search warrants, as I hold there was, still the
provisions of the Criminal Procedure Code have been completely
disregarded. On this assumption he has contended that the
evidence discovered by the searches is not admissible, but to this
view I cannot accede. For without in any way countenancing
disregard of the provisions prescribed by the Code, I hold that
what would otherwise be relevant does not become irrelevant
because it was discovered in the course of a search in which
those provisions were disregarded. As Jimutayahana with his
shrewd commonsense observes- “a tact cannot be altered by
100 texts,” and as his commentator quaintly remarks : “If a
Brahmana be slain, the precept ‘slay not a Brahmana’ does not
annul the murder.” But the absence of the precautions designed
by the legislature lends support to the argument that the alleged
discovery should be carefully scrutinized.” In Emperor v.
Allahdad Khan 35 Allahabad, 358 the Superintendent of Police
and a Sub-Inspector searched the house of a person suspected
of being in illicit possession of excisable articles and such articles
were found in the house searched. It was held that the conviction
of the owner of the house under Section 63 of the United
Provinces Excise Act, 1910, was not rendered invalid by the fact
that no warrant had been issued for the search, although it was
presumably the intention of the legislature that in a case under
Section 63, where it was necessary to search a house, a search
warrant should be obtained beforehand. In Kuruma v. The
Queen [1955] A.C. 197 where the Privy Council had to consider
the English Law of Evidence in its application to Eastern Africa,
their Lordships propounded the rule thus : “The test to be applied,
both in civil and in criminal cases, in considering whether evidence
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guarantee against search and seizure. It was held in that case
that the search of the appellant by a Police Officer was not
justified by the warrant nor was it open to the Officer to search
the person of the appellant without taking him before a Justice
of the Peace. Nevertheless it was held that the Court had a
discretion to admit the evidence obtained as a result of the illegal
search and the Constitutional protection against search of person
or property without consent did not take away the discretion of
the court. Following Kuruma v. The Queen the court held that
it was open to the court not to admit the evidence against the
accused if the court was of the view that the evidence had been
obtained by conduct of which the prosecution ought not to take
advantage. But that was not a rule of evidence but a rule of
prudence and fair play. It would thus be seen that in India, as
in England, where the test of admissibility of evidence lies in
relevancy, unless there is an express Or necessarily implied
prohibition in the Constitution or other law evidence obtained as
a result of illegal search or seizure is not liable to be shut out.’’
9. Learned counsel for the Respondent has pressed two more pleas.
Firstly, that the show cause notices have been issued as per the provisions
under Section 39 and 44 of the Indian Electricity Act, 1910 whereas the
complaint has been filed under the Electricity Act, 2003 and thus such
a complaint cannot be entertained, secondly, that even the old Regulation
25(i) which came into effect on 19th August, 2002 under the old enactment
has not been followed. The said Regulation mandates the inspecting
authority to carry alongwith it the written authority duly signed by a
designated officer of the licensee at the time of inspection. No such
averment has been made in the complaint, neither the said authorization
has been proved nor it is a part of the record. I am not dealing with these
two issues as the same were not dealt by the learned trial court which
found fit to discharge the Respondents in view of the issue raised above
in the preceeding paragraphs. The parties will be at liberty to raise these
pleas or any other pleas which they deem fit during the trial as all these
issues can be can be determined while appreciating the evidence brought
on record during the trial by the parties.
10. In view of the reasons stated above the impugned orders are
set aside. The learned trial court will now rehear the matter on the order
is admissible is whether it is relevant to the matters in issue. If
it is, it is admissible and the court is not concerned with how it
was obtained.” Some American cases were also cited before the
Privy Council. Their Lordships observed at p. 204 thus : “Certain
decisions of the Supreme Court of the United States of America
were also cited in argument. Their Lordships do not think it
necessary to examine them in detail. Suffice it to say that there
appears to be considerable difference of opinion among the judges
both in the State and Federal courts as to whether or not the
rejection of evidence obtained by illegal means depends on certain
articles in the American Constitution. At any rate, in Olmstead
v. United State (1828) 277 U.S. 438, the majority of the Supreme
Court were clearly of opinion that the common law did not reject
relevant evidence on that ground.” In Kuruma’s case, Kuruma
was searched by two Police Officers who were not authorised
under the law to carry out a search and, in the search, some
ammunition was found in the unlawful possession of Kuruma.
The question was whether the evidence with regard to the finding
of the ammunition on the person of Kuruma could be shut out
on the ground that the evidence had been obtained by an unlawful
search. It was held it could not be so shut out because the
finding of ammunition was a relevant piece of evidence on a
charge for unlawful possession. In a later case before the Privy
Council in Herman King v. The Queen [1969] (1) A.C. 304
which came on appeal from a Court of Appeal of Jamaica, the
law as laid down in Kuruma’s case was applied although the
Jamaican Constitution guaranteed the Constitutional right against
search and seizure in the following provision of the Jamaica
(Constitution) Order in Council 1962, Schedule 2, Section 19
“(1) Except with his own consent, no person shall be subjected
to the search of his person or his property or the entry by others
on his premises. “(2) Nothing contained in or done under the
authority of any law shall be held to be inconsistent with or in
contravention of this section to the extent that the law in question
makes provision which is reasonably required...for the purpose
of preventing or detecting crime....” In other words, search and
seizure for the purposes of preventing or detecting crime
reasonably enforced was not inconsistent with the Constitutional
Indian Law Reports (Delhi) ILR (2011) VI Delhi595 596Delhi Metro Rail Corp. Ltd. v. Samrat Ranga (Reva Khetrapal, J.)
of charge on the basis of the evidence on record and other contentions
raised by the parties and pass orders thereon.
11. The revision petitions are accordingly allowed.
ILR (2011) VI DELHI 595
CM (M)
DELHI METRO RAIL CORPORATION LTD. ....PETITIONER
VERSUS
SAMRAT RANGA AND ORS. ....RESPONDENTS
(REVA KHETRAPAL, J.)
CM(M) NO. : 285/2011 DATE OF DECISION: 07.07.2011
Code of Civil Procedure, 1908—Order 1 Rule 10—
Motor Vehicles Act, 1988—Section 2(30)-165—Order of
Motor Accident Claims Tribunal rejecting Petitioner’s
application seeking impleading of licensee who had
been granted permission for operation of Feeder
Buses for Metro Link Feeder Bus Project of DMRC
Ltd. challenged before HC—Plea taken, petitioner had
entered into agreement whereunder licensee was
granted permission for operation of feeder buses for
Metro Feeder Bus Project—Licensee had undertaken
to indemnify petitioner against accident/claims/liability
arising out of operation of buses—There was no privity
of contract between petitioner and injured victim—
Rejection of application tantamounted to pre-judging
issue of liability even without a trial—Held—Provisions
of M.V. Act envisage that claims Tribunal should hold
enquiry to ascertain liabilities of persons who are
involved in use of vehicle or persons who are
vicariously liable—Issue of possession or control of
vehicle assumes importance and may be determining
factor in fixing liabilities of parties to claim petition—
Order rejecting petitioner’s application for impleadment
of licensee set aside.
Important Issue Involved: The issue of possession or
control of the vehicle assumes importance and may be the
determining factor in fixing the liabilities of the parties to
the claim petition.
[Ar Bh]
APPEARANCES:
FOR THE PETITIONER : Mr. Chandan Kumar, Advocate.
FOR THE RESPONDENTS : Ms. Shantha Devi Raman, Advocate
for the Respondent No. 3.
CASES REFERRED TO:
1. National Insurance Co. Ltd. vs. Deepa Devi and Ors.,
AIR 2008 SC 735.
2. Godavari Finance Co. vs. Degala Satyanarayanamma and
Ors., (2008) 5 SCC 107.
3. Rajasthan State Road Transport Corporation vs. Kailash
Nath Kothari and Ors., AIR 1997 SC 3444.
RESULT: Allowed.
REVA KHETRAPAL, J.
1. This petition is directed against the order dated 15.12.2010 passed
by the Motor Accidents Claims Tribunal, Dwarka Courts, New Delhi in
MAC. P. No.24/10 rejecting the petitioner’s miscellaneous application
seeking impleadment of M/s. Rajasthan Bombay Transport Pvt. Ltd.
2. The facts relevant for the disposal of the present petition briefly
delineated are as follows.
3. The respondent No.1 had sustained injuries in an accident which
occurred on 05.12.2009 involving RTV (Mini Bus) bearing No.DL-IVA-
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597 598Delhi Metro Rail Corp. Ltd. v. Samrat Ranga (Reva Khetrapal, J.)
6400 driven by the respondent No.2 and insured with the respondent
No.3. The petitioner, who was arrayed as the respondent No.2 in the
claim petition, in the written statement filed by it put forth the plea that
it had entered into an agreement dated 24.10.2007 with M/s. Rajasthan
Bombay Transport Pvt. Ltd. whereunder the licensee, i.e., M/s. Rajasthan
Bombay Transport Pvt. Ltd., had been granted the permission for operation
of Feeder Buses on routes of Lot-4 for Metro Link Feeder Bus Project
of Delhi Metro Rail Corporation Limited. The petitioner further pleaded
that in consideration of the aforesaid licence granted by it to M/s. Rajasthan
Bombay Transport Pvt. Ltd., the said licensee had expressly agreed and
undertaken to indemnify and keep the petitioner indemnified against (i)
any accident/claims/liabilities or any criminal proceedings or statutory
requirements at any time arising out of the operation of the buses on
account of any act/omission/default/ on the part of the Licensee/its
employees, (ii) any criminal and/or civil liability arising out of any accident
or action of tort on part of the driver, conductor or any other employee
of the Licensee during the course of operating the buses ........... (iv) all
consequential claims/liabilities arising out of any accident/incident or legal
or statutory issue involving the vehicles or the running of the vehicles
towards any third party.
4. In its said written statement, the petitioner further stated that an
Indemnity Bond dated 20.09.2007 had been executed by M/s. Rajasthan
Bombay Transport Pvt. Ltd. in favour of the petitioner, apart from the
Lease Agreement and the delivery receipt dated 18.02.2008 in respect of
the vehicle in question. It was also contended that there was no privity
of contract between the petitioner and the injured victim, the respondent
No.1 herein. It was submitted that as per the law laid down by the
Hon’ble Supreme Court in the case of Godavari Finance Co. vs. Degala
Satyanarayanamma and Ors., (2008) 5 SCC 107, the person who is
in possession of the vehicle would be the person liable to pay the damages
for a motor accident caused by the said vehicle.
5. Simultaneously with the filing of the written statement, the
petitioner filed an application under Order I Rule 10 read with Section
151 of the Code of Civil Procedure praying for impleadment of M/s.
Rajasthan Bombay Transport Pvt. Ltd. as a party to the proceedings on
the ground that it would be just and necessary for the proper adjudication
of the claim petition. The indemnity bond dated 20.09.2007 and copy
each of the registration certificate and vehicle lease agreement alongwith
the delivery receipt dated 18.02.2008 of the vehicle in question were
placed on record alongwith the said impleadment application filed by the
petitioner as Annexure-R-1 & R-2’. The said application was dismissed
by the impugned order dated 15.12.2010.
6. Aggrieved by the aforesaid order, the present petition has been
filed on the ground that the rejection of the application in fact tantamounted
to pre-judging the issue of liability even without a trial. It is also submitted
that the adjudication of the issue of possession of the alleged offending
vehicle was of vital importance, as admittedly the RTV was in the
possession of respondent No.2, who was an employee of M/s. Rajasthan
Bombay Transport Pvt. Ltd. and the latter was in possession and operation
of the vehicle due to the Lease Agreement dated 18.02.2008.
7. In the course of arguments, Mr. Chandan Kumar, the learned
counsel for the petitioner has taken me through the Vehicle Lease
Agreement entered into between the petitioner and M/s. Rajasthan Bombay
Transport Pvt. Ltd. on 18th February, 2008. Emphasis has been laid by
the learned counsel upon certain clauses of the said Agreement, which
are reproduced hereunder:
“Clause 5.
5. The LESSEE shall keep the vehicle at all times in its possession
and control.
Clause 7.
7. The LESSEE acknowledges that it holds the vehicle as a mere
bailee of the LESSOR and shall not have any proprietary right,
title or interest in the vehicle or any part thereof. The LESSEE
shall at no time contest or challenge the LESSOR’S sole and
exclusive right title and interest in the vehicle.
Clause 11.
11. The LESSEE shall:
(a) Forthwith upon the signing of this agreement at its own
cost and have and keep the vehicle comprehensively insured
in the name of LESSOR during the continuance of the
Lease Agreement against loss or damage or destruction
Indian Law Reports (Delhi) ILR (2011) VI Delhi599 600Delhi Metro Rail Corp. Ltd. v. Samrat Ranga (Reva Khetrapal, J.)
by fire accident, theft, riots, civil commotion, third party
claims, and such other risk including terrorist, earth quake,
natural calamity risk and on such terms as the LESSOR
may require with an insurer approved by the LESSOR for
an amount equal to the full insurable value of the vehicle.
In the event of the LESSEE failing to insure as per this
clause the LESSOR may do so and recover the cost
thereof from the LESSEE forth with. The LESSEE shall
be liable for all the loss or damage that may occur by or
as a consequence of its failure to insure the vehicle as per
this clause.’’
8. On the basis of the aforesaid clauses, reproduced hereinabove,
it is contended that though the petitioner was the registered owner of the
alleged offending vehicle, by virtue of the Lease Agreement dated
18.02.2008 M/s. Rajasthan Bombay Transport Pvt. Ltd. was the lessee
of the said vehicle and the petitioner was the lessor. The lessee had
agreed to pay charges as per the Schedule to the lessor for the vehicles
leased to it and the first payment was to be made on 18.02.2008. In para
7 of the Agreement, it has been specifically stipulated that the lessee shall
hold the vehicle as a mere bailee of the lessor and shall not have any
proprietary right, title or interest in the vehicle or any part thereof. It is
further clarified that the lessee shall at no time contest or challenge the
sole and exclusive right, title and interest in the vehicle of the petitioner.
In paragraph 11 of the Agreement, it is laid down that the lessee shall
keep the vehicle comprehensively insured in the name of the petitioner
during the continuance of the Agreement against loss or damage or
destruction or third party claims, etc., and the policies of insurance are
required to be handed over to the lessor by the lessee.
9. The learned counsel for the petitioner contended that the
respondent No.2, who was driving the alleged offending vehicle at the
time of the accident, though, originally an employee of the petitioner, on
the date of the accident was working as an employee of M/s. Rajasthan
Bombay Transport Pvt. Ltd., which Company had effective control over
him. In such a situation, he further contended, the petitioner could not
be held vicariously liable for the tort committed by the respondent No.2.
Reliance in this context was placed upon a judgment of the Hon’ble
Supreme Court in the case of Rajasthan State Road Transport
Corporation vs. Kailash Nath Kothari and Ors., AIR 1997 SC 3444.
Reliance was also placed upon the judgment of the Supreme Court in the
case of National Insurance Co. Ltd. vs. Deepa Devi and Ors., AIR
2008 SC 735. It may be noted that both the said decisions have been
cited with approval by the Hon’ble Supreme Court in its subsequent
decision in the case of Godavari Finance Co. (supra), which, as noticed
above, has also been relied upon by the learned counsel for the petitioner.
10. It may be mentioned at this juncture that the respondents No.1
and 2, though they initially appeared on service of notice of the filing of
the present petition upon them, subsequently chose not to appear before
this Court. The respondent No.3-Insurance Company was, however,
represented by Ms. Shantha Devi Raman, Advocate, who in principle,
supported the prayer of the petitioner for impleadment of M/s. Rajasthan
Bombay Transport Pvt. Ltd. as a party respondent to the claim petition.
11. Having heard the learned counsel for the petitioner and Ms.
Shantha Devi Raman for the Insurance Company and gone through the
order of the learned Claims Tribunal, in my opinion, the prayer of the
petitioner for impleadment of the lessee of the vehicle, namely, M/s.
Rajasthan Bombay Transport Pvt. Ltd. deserves to be allowed. The relevant
provisions of the Motor Vehicles Act, including Section 165 of the Act,
envisage that the Claims Tribunal should hold an enquiry to ascertain the
liabilities of the persons who are involved in the use of the vehicle or the
persons who are vicariously liable. Thus, the issue of possession or
control of the vehicle assumes importance and may be the determining
factor in fixing the liabilities of the parties to the claim petition.
12. I am fortified in coming to the aforesaid conclusion from the
findings rendered by the Hon’ble Supreme Court in the case of Godavari
Finance Co. (supra). In the said case, the question before the Supreme
Court was whether a financier would be an owner of a motor vehicle
financed by it within the meaning of Section 2(30) of the Motor Vehicles
Act, 1988. The appellant, M/s Godavari Finance Co. was impleaded in
the proceedings on the premise that it was the financier of the vehicle
which caused the accident. As the vehicle was the subject matter of a
hire-purchase agreement, the appellant’s name was mentioned in the
registration book. Notwithstanding, the Supreme Court, setting aside the
judgments of the learned Tribunal and of the High Court holding that the
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appellant as a registered owner was liable for payment of compensation,
held that in the case of a motor vehicle which is subjected to a hire-
purchase agreement, the financier cannot ordinarily be treated to be the
owner. The Supreme Court further held that the person who is in
possession of the vehicle, and not the financier, being the owner, would
be liable to pay damages for the motor accident. Referring to the provisions
of Section 168 of the Motor Vehicles Act and to its earlier decisions
rendered in Kailash Nath Kothari and Deepa Devi (supra), the Supreme
Court observed as under:
‘‘16. An application for payment of compensation is filed before
the Tribunal constituted under Section 165 of the Act for
adjudicating upon the claim for compensation in respect of
accident involving the death of, or bodily injury to, persons
arising out of the use of motor vehicles, or damages to any
property of a third party so arising, or both. Use of the motor
vehicle is a sine qua non for entertaining a claim for compensation.
Ordinarily if driver of the vehicle would use the same, he remains
in possession or control thereof. Owner of the vehicle, although
may not have anything to do with the use of vehicle at the time
of the accident, actually he may be held to be constructively
liable as the employer of the driver. What is, therefore, essential
for passing an award is to find out the liabilities of the persons
who are involved in the use of the vehicle or the persons who
are vicariously liable. The insurance company becomes a necessary
party to such claims as in the event the owner of the vehicle is
found to be liable, it would have to reimburse the owner inasmuch
as a vehicle is compulsorably insurable so far as a third party is
concerned, as contemplated under Section 147 thereof. Therefore,
there cannot be any doubt whatsoever that the possession
or control of a vehicle plays a vital role.
17. The question came up for consideration before this Court in
Rajasthan State Road Transport Corporation v. Kailash Nath
Kothari and Ors., AIR 1997 SC 3444 where the owner of a
vehicle rented the bus to Rajasthan State Road Transport
Corporation. It met with an accident. Despite the fact that the
driver of the bus was an employee of the registered owner of the
vehicle, it was held:
Driver of the bus, even though an employee of the owner,
was at the relevant time performing his duties under the
order and command of the conductor of RSRTC for
operation of the bus. So far as the passengers of the ill-
fated bus are concerned, their privity of contract was
only with the RSRTC to whom they had paid the fare for
travelling in that bus and their safety therefore became the
responsibility of the RSRTC while travelling in the bus.
They had no privity of contract with Shri Sanjay Kumar,
the owner of the bus at all. Had it been a case only of
transfer of services of the driver and not of transfer of
control of the driver from the owner to RSRTC, the
matter may have been somewhat different. But on facts
in this case and in view of Conditions 4 to 7 of the
agreement (supra), the RSRTC must be held to be
vicariously liable for the tort committed by the driver
while plying the bus under contract of the RSRTC. The
general proposition of law and the presumption arising
therefrom that an employer, that is the person who has
the right to hire and fire the employee, is generally
responsible vicariously for the tort committed by the
employee concerned during the course of his employment
and within the scope of his authority, is a rebuttable
presumption. If the original employer is able to establish
that when the servant was lent, the effective control over
him was also transferred to the hirer, the original owner
can avoid his liability and the temporary employer or the
hirer, as the case may be, must be held vicariously liable
for the tort committed by the employee concerned in the
course of his employment while under the command and
control of the hirer notwithstanding the fact that the driver
would continue to be on the payroll of the original owner.
The proposition based on the general principle as noticed
above is adequately rebutted in this case not only on the
basis of the evidence led by the parties but also on the
basis of Conditions 6 and 7 (supra), which go to show
that the owner had not merely transferred the services of
the driver to the RSRTC but actual control and the driver
Indian Law Reports (Delhi) ILR (2011) VI Delhi603 604Delhi Metro Rail Corp. Ltd. v. Samrat Ranga (Reva Khetrapal, J.)
was to act under the instructions, control and command
of the conductor and other officers of the RSRTC.
18. The question again came up for consideration recently before
this Court in National Insurance Co. Ltd. v. Deepa Devi and
Ors., AIR 2008 SC 735. This Court in that case was dealing
with a matter where the vehicle in question was requisitioned by
the State Government while holding that the owner of the vehicle
would not be liable it was opined:
10. Parliament either under the 1939 Act or the 1988 Act
did not take into consideration a situation of this nature.
No doubt, Respondent Nos. 3 and 4continued to be the
registered owner of the vehicle despite the fact that the
same was requisitioned by the District Magistrate in
exercise of its power conferred upon it under the
Representation of People Act. A vehicle is requisitioned
by a statutory authority, pursuant to the provisions
contained in a statute. The owner of the vehicle cannot
refuse to abide by the order of requisition of the vehicle
by the Deputy Commissioner. While the vehicle remains
under requisition, the owner does not exercise any control
thereover. The driver may still be the employee of the
owner of the vehicle but he has to drive it as per the
direction of the officer of the State, who is put in-charge
thereof. Save and except for legal ownership, for all intent
and purport, the registered owner of the vehicle loses
entire control thereover. He has no say as to whether the
vehicle should be driven at a given point of time or not.
He cannot ask the driver not to drive a vehicle on a bad
road. He or the driver could not possibly say that the
vehicle would not be driven in the night. The purpose of
requisition is to use the vehicle. For the period the vehicle
remains under the control of the State and/ or its officers,
the owner is only entitled to payment of compensation
therefore in terms of the Act but he cannot not exercise
any control thereupon. In a situation of this nature, this
Court must proceed on the presumption that the Parliament
while enacting the 1988 Act did not envisage such a
situation. If in a given situation, the statutory definitions
contained in the 1988 Act cannot be given effect to in
letter and spirit, the same should be understood from the
common sense point of view.
In so opining the Court followed Kailash Nath Kothari (supra).
The legal principles as noticed hereinbefore, clearly show that
the appellant was not liable to pay any compensation to the
claimants.’’
13. In view of the aforesaid law laid down by the Supreme Court,
I have not the least bit of hesitation in setting aside the order dated
15.12.2010 rejecting the petitioner’s application for impleadment of M/
s. Rajasthan Bombay Transport Pvt. Ltd.
14. The appeal is accordingly allowed. Amended memo of parties
shall be filed by the petitioner impleading M/s. Rajasthan Bombay Transport
Pvt. Ltd. as party respondent. The learned Tribunal shall issue directions
for the service of the newly added party.
A copy of this order be given dasti to the counsel for the petitioner,
as prayed.
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ILR (2011) VI DELHI 605
CRL. M.C.
M. ARUN AHLUWALIA ....PETITIONER
VERSUS
ARUN OBEROI & ANR. ....RESPONDENTS
(MUKTA GUPTA, J.)
CRL. M.C. NO. : 239/2010 DATE OF DECISION: 08.07.2011
Negotiable Instrument Act, 1881—Section 138—
Respondent no.1 filed complaint under Section 138 of
Act—Aggrieved by summoning order passed by Senior
Civil Judge, petitioner preferred petition for quashing
of said order—Petitioner urged, cheque not
dishonoured for reason of insufficient funds or amount
due thereon exceeded amount arranged to be paid
from account—However, there was no discharge of
legal liability of petitioner towards complainant—Thus,
case for dishonour of cheque not made out—Per
contra, Respondents urged, petitioner issued two
cheques out of which one cheque dishonoured and a
legal liability on part of petitioner existed as he had
purchased shares from Respondent and his wife—
Held:- Where a cheque is dishonoured for any reason,
it has to be co-related to the insufficiency of funds in
account—Legislative intent is to stop dishonoring of
cheque and adopt a no-nonsense situation and punish
the unscrupulous person who purport to discharge
this liability by issuing cheques, not intending to honour
it on account of insufficiency of funds in their
accounts—Petitioner’s contention that he had no
liability to pay, is a question of fact and can be
determined only through Trial—Petition dismissed.
The Hon'ble Supreme Court in case of Rangappa (Supra)
has at length discussed the scope and legislative intent of
the sections 118, 138 & 139 of the NI Act as follows:
“8. In the course of the proceedings before this Court,
the contentions related to the proper interpretation of
Sections 118(a), 138 and 139 of the Act. Before
addressing them, it would be useful to quote the
language of the relevant provisions:
118. Presumptions as to negotiable instruments. -
Until the contrary is proved, the following presumptions
shall be made: (a) of consideration: that every
negotiable instrument was made or drawn for
consideration, and that every such instrument when it
has been accepted, endorsed, negotiated or
transferred, was accepted, endorsed, negotiated or
transferred for consideration;
138. Dishonour of cheque for insufficiency, etc., of
funds in the account. - Where any cheque drawn by
a person on an account maintained by him with a
banker for payment of any amount of money to
another person from out of that account for the
discharge, in whole or in part, of any debt or other
liability, is returned by the bank unpaid, either because
of the amount of money standing to the credit of that
account is insufficient to honour the cheque or that it
exceeds the amount arranged to be paid from that
account by an agreement made with that bank, such
person shall be deemed to have committed an offence
and shall, without prejudice to any other provision of
this Act, be punished with imprisonment for a term
which may extend to two years, or with fine which may
extend to twice the amount of the cheque, or with
both:
Provided that nothing contained in this section shall
apply unless-
Indian Law Reports (Delhi) ILR (2011) VI Delhi607 608M. Arun Ahluwalia v. Arun Oberoi & Anr. (Mukta Gupta, J.)
(a) the cheque has been presented to the bank within
a period of six months from the date on which it is
drawn or within the period of its validity, whichever is
earlier.
(b) the payee or the holder in due course of the
cheque, as the case may be, makes a demand for the
payment of the said amount of money by giving a
notice, in writing, to the drawer of the cheque, within
thirty days of the receipt of information by him from
the bank regarding the return of the cheque as
unpaid; and
(c) the drawer of such cheque fails to make the
payment of the said amount of money to the payee
or, as the case may be, to the holder in due course
of the cheque, within fifteen days of the receipt of the
said notice.
Explanation. - For the purposes of this section, `debt
or other liability' means a legally enforceable debt or
other liability.
139. Presumption in favour of holder.- It shall be
presumed, unless the contrary is proved, that the
holder of a cheque received the cheque, of the
nature referred to in Section 138 for the discharge, in
whole or in part, of any debt, or other liability.
9. Ordinarily in cheque bouncing cases, what the
courts have to consider is whether the ingredients of
the offence enumerated in Section 138 of the Act
have been met and if so, whether the accused was
able to rebut the statutory presumption contemplated
by Section 139 of the Act. With respect to the facts of
the present case, it must be clarified that contrary to
the trial court's finding, Section 138 of the Act can
indeed be attracted when a cheque is dishonoured on
account of ‘stop payment’ instructions sent by the
accused to his bank in respect of a post-dated cheque,
irrespective of insufficiency of funds in the account.
This position was clarified by this Court in Goa Plast
(Pvt.) Ltd. v. Chico Ursula D'Souza, (2003) 3 SCC
232, wherein it was held:
“Chapter XVII containing Sections 138 to 142 was
introduced in the Act by Act 66 of 1988 with the object
of inculcating faith in the efficacy of banking operations
and giving credibility to negotiable instruments in
business transactions. These provisions were intended
to discourage people from not honouring their
commitments by way of payment through cheques.
The court should lean in favour of an interpretation
which serves the object of the statute. A post-dated
cheque will lose its credibility and acceptability if its
payment can be stopped routinely. The purpose of a
post-dated cheque is to provide some accommodation
to the drawer of the cheque. Therefore, it is all the
more necessary that the drawer of the cheque should
not be allowed to abuse the accommodation given to
him by a creditor by way of acceptance of a post-
dated cheque. In view of Section 139, it has to be
presumed that a cheque is issued in discharge of any
debt or other liability. The presumption can be rebutted
by adducing evidence and the burden of proof is on
the person who wants to rebut the presumption. This
presumption coupled with the object of Chapter XVII of
the Act leads to the conclusion that by countermanding
payment of a post-dated cheque, a party should not
be allowed to get away from the penal provision of
Section 138. A contrary view would render S. 138 a
dead letter and will provide a handle to persons trying
to avoid payment under legal obligations undertaken
by them through their own acts which in other words
can be said to be taking advantage of one's own
wrong....”
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in regard to the second aspect of the matter. Existence
of legally recoverable debt is not a matter of
presumption under Section 139 of the Act. It merely
raises a presumption in favour of a holder of the
cheque that the same has been issued for discharge
of any debt or other liability.
31. The courts below, as noticed hereinbefore,
proceeded on the basis that Section 139 raises a
presumption in regard to existence of a debt also.
The courts below, in our opinion, committed a serious
error in proceeding on the basis that for proving the
defence the accused is required to step into the
witness box and unless he does so he would not be
discharging his burden. Such an approach on the
part of the courts, we feel, is not correct.
32. An accused for discharging the burden of proof
placed upon him under a statute need not examine
himself. He may discharge his burden on the basis of
the materials already brought on record. An accused
has a constitutional right to maintain silence. Standard
of proof on the part of the accused and that of the
prosecution in a criminal case is different….
34. Furthermore, whereas prosecution must prove the
guilt of an accused beyond all reasonable doubt, the
standard of proof so as to prove a defence on the
part of the accused is `preponderance of probabilities'.
Inference of preponderance of probabilities can be
drawn not only from the materials brought on record
by the parties but also by reference to the
circumstances upon which he relies.”
(Emphasis supplied)
Specifically in relation to the nature of the presumption
contemplated by Section 139 of the Act, it was
observed;
10. It has been contended on behalf of the appellant-
accused that the presumption mandated by Section
139 of the Act does not extend to the existence of a
legally enforceable debt or liability and that the same
stood rebutted in this case, keeping in mind the
discrepancies in the complainant's version. It was
reasoned that it is open to the accused to rely on the
materials produced by the complainant for disproving
the existence of a legally enforceable debt or liability.
It has been contended that since the complainant did
not conclusively show whether a debt was owed to
him in respect of a hand loan or in relation to
expenditure incurred during the construction of the
accused's house, the existence of a legally enforceable
debt or liability had not been shown, thereby creating
a probable defence for the accused. Counsel
appearing for the appellant-accused has relied on a
decision given by a division bench of this Court in
Krishna Janardhan Bhat v. Dattatraya G. Hegde,
(2008) 4 SCC 54, the operative observations from
which are reproduced below (S.B. Sinha, J. at Paras.
29-32, 34 and 45):
“29. Section 138 of the Act has three ingredients viz:
(i) that there is a legally enforceable debt
(ii) that the cheque was drawn from the account of
bank for discharge in whole or in part of any debt or
other liability which presupposes a legally enforceable
debt; and
(iii) that the cheque so issued had been returned due
to insufficiency of funds.
30. The proviso appended to the said section provides
for compliance with legal requirements before a
complaint petition can be acted upon by a court of
law. Section 139 of the Act merely raises a presumption
Indian Law Reports (Delhi) ILR (2011) VI Delhi611 612M. Arun Ahluwalia v. Arun Oberoi & Anr. (Mukta Gupta, J.)
“45. We are not oblivious of the fact that the said
provision has been inserted to regulate the growing
business, trade, commerce and industrial activities of
the country and the strict liability to promote greater
vigilance in financial matters and to safeguard the
faith of the creditor in the drawer of the cheque which
is essential to the economic life of a developing
country like India. This however, shall not mean that
the courts shall put a blind eye to the ground realities.
Statute mandates raising of presumption but it stops
at that. It does not say how presumption drawn should
be held to have been rebutted. Other important
principles of legal jurisprudence, namely, presumption
of innocence as a human right and the doctrine of
reverse burden introduced by Section 139 should be
delicately balanced. Such balancing acts, indisputably
would largely depend upon the factual matrix of each
case, the materials brought on record and having
regard to legal principles governing the same.”
(Emphasis supplied)
11. With respect to the decision cited above, counsel
appearing for the respondent-claimant has submitted
that the observations to the effect that the `existence
of legally recoverable debt is not a matter of
presumption under Section 139 of the Act' and that `it
merely raises a presumption in favour of a holder of
the cheque that the same has been issued for
discharge of any debt or other liability' [See Para. 30
in Krishna Janardhan Bhat (supra)] are in conflict
with the statutory provisions as well as an established
line of precedents of this Court. It will thus be necessary
to examine some of the extracts cited by the
respondent-claimant. For instance, in Hiten P. Dalal
v. Bratindranath Banerjee (2001) 6 SCC 16, it was
held (Ruma Pal, J. at Paras. 22-23):
“22. Because both Sections 138 and 139 require that the
Court `shall presume' the liability of the drawer of the
cheques for the amounts for which the cheques are drawn,
..., it is obligatory on the Court to raise this presumption in
every case where the factual basis for the raising of the
presumption has been established. It introduces an exception
to the general rule as to the burden of proof in criminal
cases and shifts the onus on to the accused (...). Such a
presumption is a presumption of law, as distinguished from
a presumption of fact which describes provisions by which
the court may presume a certain state of affairs. Presumptions
are rules of evidence and do not conflict with the presumption
of innocence, because by the latter all that is meant is that
the prosecution is obliged to prove the case against the
accused beyond reasonable doubt. The obligation on the
prosecution may be discharged with the help of presumptions
of law or fact unless the accused adduces evidence showing
the reasonable probability of the non-existence of the
presumed fact.
23. In other words, provided the facts required to form the
basis of a presumption of law exists, the discretion is left with
the Court to draw the statutory conclusion, but this does not
preclude the person against whom the presumption is drawn
from rebutting it and proving the contrary. A fact is said to
be proved when, after considering the matters before it, the
Court either believes it to exist, or considers its existence so
probable that a prudent man ought, under the circumstances
of the particular case, to act upon the supposition that it
exists. Therefore, the rebuttal does not have to be
conclusively established but such evidence must be adduced
before the Court in support of the defence that the Court
must either believe the defence to exist or consider its
existence to be reasonably probable, the standard of
reasonability being that of the prudent man.”
(Emphasis supplied)
12. The respondent-claimant has also referred to the decision
reported as Mallavarapu Kasivisweswara Rao v.
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613 614M. Arun Ahluwalia v. Arun Oberoi & Anr. (Mukta Gupta, J.)
Thadikonda Ramulu Firm and Ors. 2008 (8) SCALE 680,
wherein it was observed:
“Under Section 118(a) of the Negotiable Instruments Act, the
court is obliged to presume, until the contrary is proved, that
the promissory note was made for consideration. It is also a
settled position that the initial burden in this regard lies on
the defendant to prove the non-existence of consideration
by bringing on record such facts and circumstances which
would lead the Court to believe the non-existence of the
consideration either by direct evidence or by preponderance
of probabilities showing that the existence of consideration
was improbable, doubtful or illegal....
This decision then proceeded to cite an extract from the
earlier decision in Bharat Barrel & Drum Manufacturing
Company v. Amin Chand Pyarelal, (1999) 3 SCC 35: (AIR
1999 SC 1008) (Para.12):
“Upon consideration of various judgments as noted
hereinabove, the position of law which emerges is that once
execution of the promissory note is admitted, the presumption
under Section 118(a) would arise that it is supported by a
consideration. Such a presumption is rebuttable. The
defendant can prove the non-existence of a consideration
by raising a probable defence. If the defendant is proved to
have discharged the initial onus of proof showing that the
existence of consideration was improbably or doubtful or the
same was illegal, the onus would shift to the plaintiff who will
be obliged to prove it as a matter of fact and upon its failure
to prove would disentitle him to the grant of relief on the
basis of the negotiable instrument. The burden upon the
defendant of proving the non-existence of the consideration
can be either direct or by bringing on record the
preponderance of probabilities by reference to the
circumstances upon which he relies. In such an event, the
plaintiff is entitled under law to rely upon all the evidence led
in the case including that of the plaintiff as well. In case,
where the defendant fails to discharge the initial onus of
proof by showing the non-existence of the consideration, the
plaintiff would invariably be held entitled to the benefit of
presumption arising under Section 118(a) in his favour. The
court may not insist upon the defendant to disprove the
existence of consideration by leading direct evidence as the
existence of negative evidence is neither possible nor
contemplated and even if led, is to be seen with a doubt.
The bare denial of the passing of the consideration apparently
does not appear to be any defence. Something which is
probable has to be brought on record for getting the benefit
of shifting the onus of proving to the plaintiff. To disprove
the presumption, the defendant has to bring on record such
facts and circumstances upon consideration of which the
court may either believe that the consideration did not exist
or its non-existence was so probable that a prudent man
would, under the circumstances of the case, act upon the
plea that it did not exist.”
(Emphasis supplied)
Interestingly, the very same extract has also been
approvingly cited in Krishna Janardhan Bhat
(supra).
13. With regard to the facts in the present case, we
can also refer to the following observations in M.M.T.C.
Ltd. and Anr. v. Medchl Chemicals & Pharma (P)
Ltd. (2002) 1 SCC 234 (Para. 19):
“...The authority shows that even when the cheque is
dishonoured by reason of stop payment instruction,
by virtue of Section 139 the Court has to presume
that the cheque was received by the holder for the
discharge in whole or in part, of any debt or liability.
Of course this is a rebuttable presumption. The
accused can thus show that the `stop payment'
instructions were not issued because of insufficiency
or paucity of funds. If the accused shows that in his
account there was sufficient funds to clear the amount
of the cheque at the time of presentation of the
Indian Law Reports (Delhi) ILR (2011) VI Delhi615 616M. Arun Ahluwalia v. Arun Oberoi & Anr. (Mukta Gupta, J.)
cheque for encashment at the drawer bank and that
the stop payment notice had been issued because of
other valid causes including that there was no existing
debt or liability at the time of presentation of cheque
for encashment, then offence under Section 138
would not be made out. The important thing is that the
burden of so proving would be on the accused....”
(Emphasis supplied)
14. In light of these extracts, we are in agreement with
the respondent-claimant that the presumption
mandated by Section 139 of the Act does indeed
include the existence of a legally enforceable debt or
liability. To that extent, the impugned observations in
Krishna Janardhan Bhat (supra) may not be correct.
However, this does not in any way cast doubt on the
correctness of the decision in that case since it was
based on the specific facts and circumstances therein.
As noted in the citations, this is of course in the
nature of a rebuttable presumption and it is open to
the accused to raise a defence wherein the existence
of a legally enforceable debt or liability can be
contested. However, there can be no doubt that there
is an initial presumption which favours the complainant.
Section 139 of the Act is an example of a reverse
onus clause that has been included in furtherance of
the legislative objective of improving the credibility of
negotiable instruments. While Section 138 of the Act
specifies a strong criminal remedy in relation to the
dishonour of cheques, the rebuttable presumption
under Section 139 is a device to prevent undue delay
in the course of litigation. However, it must be
remembered that the offence made punishable by
Section 138 can be better described as a regulatory
offence since the bouncing of a cheque is largely in
the nature of a civil wrong whose impact is usually
confined to the private parties involved in commercial
transactions. In such a scenario, the test of
proportionality should guide the construction and
interpretation of reverse onus clauses and the
accused/defendant cannot be expected to discharge
an unduly high standard or proof. In the absence of
compelling justifications, reverse onus clauses usually
impose an evidentiary burden and not a persuasive
burden. Keeping this in view, it is a settled position
that when an accused has to rebut the presumption
under Section 139, the standard of proof for doing so
is that of `preponderance of probabilities'. Therefore,
if the accused is able to raise a probable defence
which creates doubts about the existence of a legally
enforceable debt or liability, the prosecution can fail.
As clarified in the citations, the accused can rely on
the materials submitted by the complainant in order to
raise such a defence and it is conceivable that in
some cases the accused may not need to adduce
evidence of his/her own.” (Para 8)
In R. Vinod Shivappa (Supra) their Lordship’s have
interpreted Section 138 of NI Act as under:
“12. It is well settled that in interpreting a statute the
court must adopt that construction which suppresses
the mischief and advances the remedy. This is a rule
laid down in Heydon's case (76 ER 637) also known
as the rule of purposive construction or mischief rule.
13. Section 138 of the Act was enacted to punish
those unscrupulous persons who purported to
discharge their liability by issuing cheques without
really intending to do so, which was demonstrated by
the fact that there was no sufficient balance in the
account to discharge the liability. Apart from civil
liability, a criminal liability was imposed on such
unscrupulous drawers of cheques. The prosecution,
however, was made subject to certain conditions. With
a view to avoid unnecessary prosecution of an honest
drawer of a cheque, or to give an opportunity to the
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drawer to make amends, the proviso to Section 138
provides that after dishonour of the cheque, the
payee or the holder of the cheque in due course must
give a written notice to the drawer to make good the
payment. The drawer is given 15 days time from date
of receipt of notice to make the payment, and only if
he fails to make the payment he may be prosecuted.
The object which the proviso seeks to achieve is quite
obvious. It may be that on account of mistake of the
bank, a cheque may be returned despite the fact that
there is sufficient balance in the account from which
the amount is to be paid. In such a case if the drawer
of the cheque is prosecuted without notice, it would
result in great in-justice and hardship to an honest
drawer. One can also conceive of cases where a well
intentioned drawer may have inadvertently missed to
make necessary arrangements for reasons beyond
his control, even though he genuinely intended to
honour the cheque drawn by him. The law treats such
lapses induced by inadvertence or negligence to be
pardonable, provided the drawer after notice makes
amends and pays the amount within the prescribed
period. It is for this reason that Clause (c) of proviso
to Section 138 provides that the section shall not
apply unless the drawer of the cheque fails to make
the payment within 15 days of the receipt of the said
notice. To repeat, the proviso is meant to protect
honest drawers whose cheques may have been
dishonoured for the fault of others, or who may have
genuinely wanted to fulfill their promise but on account
of inadvertence or negligence failed to make necessary
arrangements for the payment of the cheque. The
proviso is not meant to protect unscrupulous drawers
who never intended to honour the cheques issued by
them, it being a part of their modus operandi to cheat
unsuspecting persons.” (Para 9)
Important Issue Involved: Where a cheque is dishonoured
for any reason it has to be co-related to the insufficiency
of funds in account—Legislative intent is to stop dishonoring
of cheque and adopt a no-nonsense situation and punish the
unscrupulous person who purport to discharge this liability
by issuing cheques, not intending to honour it on account
of insufficiency of funds in their accounts.
[Sh Ka]
APPEARANCES:
FOR THE PETITIONER : Mr. D.S. Narula, Senior Advocate
with Ms. Vandana & Mr. A.S.
Narula, Advocates.
FOR THE RESPONDENT : Mr. Avi Singh & Mr. Anya Singh,
Advocates.
CASES REFERRED TO:
1. Rangappa vs. Sri Mohan, AIR 2010 SC 1898.
2. Raj Kumar Khanna vs. State, (2009) 6 SCC 72.
3. Mustafa Surka vs. State of Gujarat, Special Criminal
Application Nos. 2118 to 2143 of 2009.
4. Vijay Chaudhary vs. Gyan Chand Jain, 2008(2) DCR
685.
5. Mallavarapu Kasivisweswara Rao vs. Thadikonda Ramulu
Firm and Ors. 2008 (8) SCALE 680.
6. Krishna Janardhan Bhat vs. Dattatraya G. Hegde, (2008)
4 SCC 54.
7. R.Vinod Shivappa vs. Nanda Belliappa, 130 (2006) DLT
534 (SC).
8. Goa Plast (Pvt.) Ltd. vs. Chico Ursula D'Souza, (2003)
3 SCC 232.
9. Gopalast Pvt. Ltd. vs. Chico Ursula D'Souza, AIR 2003
SC 2035.
10. Vinod Tanna vs. Zaher Siddiqui, (2002) 7 SCC 541.
Indian Law Reports (Delhi) ILR (2011) VI Delhi619 620M. Arun Ahluwalia v. Arun Oberoi & Anr. (Mukta Gupta, J.)
11. Veera Exports vs. Kalavathy, (2002)1 SCC 97.
12. M.M.T.C. Ltd. and Anr. vs. Medchl Chemicals & Pharma
(P) Ltd. (2002) 1 SCC 234 (Para. 19).
13. Hiten P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC
16.
14. Kusum Ingots & Alloys Ltd. vs. Pennar Peterson Securities
Ltd. & Ors., (2000) 2 SCC 745.
15. Bharat Barrel & Drum Manufacturing Company vs. Amin
Chand Pyarelal, (1999) 3 SCC 35: (AIR 1999 SC 1008)
(Para.12).
16. Om Prakash Bhojraj Maniyar vs. Swati Girish Bhido and
others, (78) 1993 Company Cases 797 Bombay High Court.
RESULT: Petition Dismissed.
MUKTA GUPTA, J.
1. This is a petition for quashing of order dated 19th March, 2009
summoning the petitioner in criminal complaint No. 92/5/08 under Section
138 Negotiable Instrument Act (hereinafter referred as NI Act) and the
said complaint.
2. Before proceeding further, it would be relevant to note the brief
facts of the case. The Respondent No. 1and his wife along with M/s
May Co. Freight & Travels Pvt. Ltd. were shareholders of M/s Kausauli
Resorts Pvt. Ltd. Co. registered at Jalandar City. They were holding
35,000 shares of M/s Kausauli Resort in totality and were Promoter/
Directors of the said company. On 25th August, 2003 the Respondent
No.1 along with his wife & M/s May Co. Freight & Travels Pvt. Ltd.
sold their shareholding to Captain NP Ahluwalia i.e. Brother of the petitioner
& Captain P.S. Chimni for Rs.1,49,79,000 as per MOU dated 25th August,
2003. It is alleged that the petitioner had discharged this liability in part
for purchasing the share holding of M/s Kasauli Resort Pvt. Ltd. of the
Respondent. The petitioner had issued 2 post dated cheques bearing No.
624695 dated 31st January, 2004 for a sum of Rs.3,50,000/- drawn on
State Bank of India and other bearing No. 624696 dated 31st December,
2004 for a sum of Rs.20,00,000/- drawn on State Bank of India, Malviya
Nagar, New Delhi. The 1st cheque bearing No. 624695 was duly encashed
but the 2nd cheque became the bone of contention between the parties
and for the dishonour of the said cheque Respondent No.1filed the
complaint case under Section 138 of NI Act. On 19th March, 2009 Ld.
Senior Civil Judge in Complaint Case No. 92/5/08 issued summons to the
petitioner which is the order impugned in the present petition.
3. Learned counsel for the petitioner contends that on the averments
contained in the complaint and the documents filed therein, no offence
under Section 138 NI Act is made out as the cheque issued by the
petitioner had not been dishonoured for the reason of insufficient funds
or that the amount due thereon exceeds the amount arranged to be paid
from that account. It is contended that for an offence to be made out
under Section 138 NI Act the dishonoured cheque must be in discharge
of a legal liability whereas in the present case there are no particulars
contained in the complaint which disclose the alleged liability of the
petitioner towards the complainant for which the cheque is said to have
been issued. It is urged that the petitioner is nowhere involved in the
transaction which took place between the respondent and the brother of
the petitioner. The petitioner is not even a signatory to the MOU signed
by the respondent and petitioner's brother Captain NP Ahluwalia and
Captain PS Chimni. Therefore, there is no legal liability of the petitioner
to pay any amount to the Respondent No.1. Reliance is placed on Kusum
Ingots & Alloys Ltd. Vs. Pennar Peterson Securities Ltd. & Ors.,
(2000) 2 SCC 745. It is further contended that the date mentioned on the
cheque issued was 31st December, 2004 which was a loan to the
respondent and the same was to be first declared and then presented for
encashment. Respondent did not raise the said loan amount till the year
2005 and out of nowhere in the year 2008 issued a notice u/s 138 N.I.
Act to the Petitioner. No legal liability of the petitioner existed for which
he ought to have paid the money. The said date of 31st December, 2004
has been altered to 30th September, 2008 to defraud and blackmail the
petitioner. There arises no question of revalidation of the said cheque.
Also this aspect has been categorically denied by petitioner in his response
to the notice dated 3rd November, 2008 sent to him by the Respondent
No.1 under Section 138 of NI Act. Reliance is placed on Vinod Tanna
vs. Zaher Siddiqui, (2002) 7 SCC 541 to contend that where the cheque
was dishonoured only due to incomplete signature of drawer the same
would not attract the provision of Section 138 NI Act. Reliance has been
placed upon Om Prakash Bhojraj Maniyar vs. Swati Girish Bhido
and others, (78) 1993 Company Cases 797 Bombay High Court; Mustafa
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Surka vs. State of Gujarat, Special Criminal Application Nos. 2118 to
2143 of 2009 decided by the Gujarat High Court to contend that for an
offence contemplated under Section 138 of NI Act exists only in two
contingencies and therefore if the cheque is dishonoured for any third
contingency or eventuality the same would not be covered under the
provisions of Section 138 of NI Act. Thus, where the cheque is
dishonoured due to incomplete signature/illegible or no image found
signature or closure of account it would not attract the provision of
Section 138 of the Act and hence cannot afford a ground for taking penal
action under the said section. Reliance is placed on Raj Kumar Khanna
vs. State, (2009) 6 SCC 72 to contend that the parameters for invoking
Section 138 of the Act are limited and a penal provisions created by
reason of a legal fiction must receive strict construction. Such a penal
provision enacted in terms of the legal fiction drawn would be attracted
when a cheque is returned by the Bank unpaid and such non-payment
should be for either of the two reasons embodied therein.
4. Per contra learned Counsel for the Respondent vehemently
opposing the present petition contends that the petitioner had issued 2
cheques out of which the 2nd cheque bearing No. 624696 dated 31st
December, 2004, which was dishonoured, is the subject matter of the
present petition. It is contended that there existed a legal liability on the
part of the petitioner as he had in part purchased the shares of M/s
Kausauli Resort Pvt. Ltd. from the respondent and his wife. Further, the
said cheque was revalidated by the petitioner in the month of April, 2008
when the respondent visited Singapore and discussed the matter about
the payment of said cheque. Thereafter the date of the said cheque was
changed from 31st December, 2004 to 30th September, 2008 and duly
signed by the petitioner. On presentation of the said cheque on 1st
October, 2008 the cheque was dishonoured and was returned vide Memo
dated 3rd October, 2008 by the Bank. Though the reason assigned in the
said Memo was the alteration in cheque, however, the said cheque was
dishonoured not only due to alternation in signatures but also due to the
fact that the account balance of the petitioner on the said date was nil
and due to insufficiency of funds the cheque was dishonoured. CW1
Prabhat Kumar, the Branch Manager of State Bank of India, Malviya
Nagar has been examined and has deposed in this regard. Since it is a
case of dishonour of cheque due to insufficiency of funds, therefore,
provisions of Section 138 are clearly attracted. Learned counsel places
reliance on Rangappa vs. Sri Mohan, AIR 2010 SC 1898 to contend
that in view of Section 139 it has to be presumed that a cheque is issued
in discharge of any debt or liability and the presumption can be rebutted
by way of evidence but burden is on the person who wants to rebut it.
Reliance is also placed on R.Vinod Shivappa vs. Nanda Belliappa, 130
(2006) DLT 534 (SC) to contend that the proviso to Section 138 is not
meant to protect the unscrupulous drawers who do not intend to honour
the cheques issued by them. Learned counsel further relies on Veera
Exports Vs. Kalavathy, (2002)1 SCC 97 to contend that revalidation of
the Negotiable Instrument is a material alteration which fact has to be
established by the way of evidence at the trial and the same cannot be
determined on the mere assertion of the accused. Hence no case for
quashing of the summoning order is made out in the present case. It is
only the assertion made by the petitioner that he did not revalidate the
cheque as he owed no legal liability towards Petitioner. This fact needs
to be ascertained by way of evidence and the same can be done at the
trial and not in a petition under Section 482 Cr.P.C. Reliance is also
placed on Gopalast Pvt. Ltd. Vs. Chico Ursula D'Souza, AIR 2003 SC
2035 to contend the though Sec 138 is a penal provision still it is a duty
of the court to interpret it consistent with the legislative intent, purpose
of which is to suppress the mischief and advance the remedy which in
such cases is to stop the menance of not honouring the issued cheques.
Therefore, the present petition is meritless and liable to be dismissed.
5. I have heard the learned counsel for the parties and perused the
records. The questions to be determined in the present petition are two
fold. Firstly, whether the provisions of Section 138 N.I. Act would be
attracted in a case where there are no sufficient funds in the account on
the date of dishonour of the cheque though the cheque has been returned
with a return memo “due to alteration”. Secondly, that where there is an
alteration in the cheque and the same is not admitted to by the petitioner
whether the court hearing a petition under Section 482 Cr.P.C. can
ascertain the veracity of the same without a trial.
6. The contention of the learned counsel for the Petitioner that there
existed no legal liability for him to honour the cheque as there was no
privity of contract between the Petitioner and Respondent No. 1 and that
the Respondent’s group had received the entire sale consideration for the
shares of Captain N.P. Ahluwalia and Captain P.S. Chinni in terms of the
Indian Law Reports (Delhi) ILR (2011) VI Delhi623 624M. Arun Ahluwalia v. Arun Oberoi & Anr. (Mukta Gupta, J.)
M.O.U. and that the cheque issued was a loan to the Petitioner as he was
running into losses, are disputed questions of fact which need
determination at the stage of trial because in the complaint it is alleged
by the Respondent that the Petitioner had issued the said cheque for Rs.
20,00,000/- in order to discharge its liability in part for purchasing the
ˇshare holding of M/s Kausauli Resort Pvt. Ltd. of the Respondent and
his Company.
7. The reliance of the learned counsel for the petitioner on Vinod
Tanna's Case (Supra) is misconceived as the Hon'ble Supreme Court
was considering a \case where there was only alteration in the cheque
and there was no allegation of insufficiency of funds. However in the
present case the Complainant/Respondent has led evidence and CWI
Prabhat Kumar, the Branch Manager of State Bank of India has deposed
that as per the Bank Statement of the petitioner there was no balance to
honour the cheque on the day it was presented. Thus there was a ground
available with the Respondent that an offence under Section 138 N.I. Act
has been committed as there was also insufficient funds due to which
the said cheque could not be honoured.
8. The Hon'ble Supreme Court in case of Rangappa (Supra) has
at length discussed the scope and legislative intent of the sections 118,
138 & 139 of the NI Act as follows:
“8. In the course of the proceedings before this Court, the
contentions related to the proper interpretation of Sections 118(a),
138 and 139 of the Act. Before addressing them, it would be
useful to quote the language of the relevant provisions:
118. Presumptions as to negotiable instruments. - Until the
contrary is proved, the following presumptions shall be made:
(a) of consideration: that every negotiable instrument was made
or drawn for consideration, and that ˇevery such instrument
when it has been accepted, endorsed, negotiated or transferred,
was accepted, endorsed, negotiated or transferred for
consideration;
138. Dishonour of cheque for insufficiency, etc., of funds in
the account. - Where any cheque drawn by a person on an
account maintained by him with a banker for payment of any
amount of money to another person from out of that account for
the discharge, in whole or in part, of any debt or other liability,
is returned by the bank unpaid, either because of the amount of
money standing to the credit of that account is insufficient to
honour the cheque or that it exceeds the amount arranged to be
paid from that account by an agreement made with that bank,
such person shall be deemed to have committed an offence and
shall, without prejudice to any other provision of this Act, be
punished with imprisonment for a term which may extend to
two years, or with fine which may extend to twice the amount
of the cheque, or with both:
Provided that nothing contained in this section shall apply
unless-
(a) the cheque has been presented to the bank within a period of
six months from the date on which it is drawn or within the
period of its validity, whichever is earlier.
(b) the payee or the holder in due course of the cheque, as the
case may be, makes a demand for the payment of the said
amount of money by giving a notice, in writing, to the drawer
of the cheque, within thirty days of the receipt of information by
him from the bank regarding the return of the cheque as unpaid;
and
(c) the drawer of such cheque fails to make the payment of the
said amount of money to the payee or, as the case may be, to
the holder in due course of the cheque, within fifteen days of the
receipt of the said notice.
Explanation. - For the purposes of this section, `debt or other
liability' means a legally enforceable debt or other liability.
139. Presumption in favour of holder.- It shall be presumed,
unless the contrary is proved, that the holder of a ˇcheque
received the cheque, of the nature referred to in Section 138 for
the discharge, in whole or in part, of any debt, or other liability.
9. Ordinarily in cheque bouncing cases, what the courts have to
consider is whether the ingredients of the offence enumerated in
Section 138 of the Act have been met and if so, whether the
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accused was able to rebut the statutory presumption contemplated
by Section 139 of the Act. With respect to the facts of the
present case, it must be clarified that contrary to the trial court's
finding, Section 138 of the Act can indeed be attracted when a
cheque is dishonoured on account of `stop payment' instructions
sent by the accused to his bank in respect of a post-dated
cheque, irrespective of insufficiency of funds in the account.
This position was clarified by this Court in Goa Plast (Pvt.)
Ltd. v. Chico Ursula D'Souza, (2003) 3 SCC 232, wherein it
was held:
“Chapter XVII containing Sections 138 to 142 was introduced
in the Act by Act 66 of 1988 with the object of inculcating faith
in the efficacy of banking operations and giving credibility to
negotiable instruments in business transactions. These provisions
were intended to discourage people from not honouring their
commitments by way of payment through cheques. The court
should lean in favour of an interpretation which serves the object
of the statute. A post-dated cheque will lose its credibility and
acceptability if its payment can be stopped routinely. The purpose
of a post-dated cheque is to provide some accommodation to the
drawer of the cheque. Therefore, it is all the more necessary that
the drawer of the cheque should not be allowed to abuse the
accommodation given to him by a creditor by way of acceptance
of a post-dated cheque. In view of Section 139, it has to be
presumed that a cheque is issued in discharge of any debt or
other liability. The presumption can be rebutted by adducing
evidence and the burden of proof is on the person who wants
to rebut the presumption. This presumption coupled with the
object of Chapter XVII of the Act leads to the conclusion that
by countermanding payment of a post-dated cheque, a party
should not be allowed to get away from the penal provision of
Section 138. A contrary view would render S. 138 a dead letter
and will provide a handle to persons trying to avoid payment
under legal obligations undertaken by them through their own
acts which in other words can be said to be taking advantage of
one's own wrong....”
10. It has been contended on behalf of the appellant-accused that
the presumption mandated by Section 139 of the Act does not
extend to the existence of a legally enforceable debt or liability
and that the same stood rebutted in this case, keeping in mind
the discrepancies in the complainant's version. It was reasoned
that it is open to the accused to rely on the materials produced
by the complainant for disproving the existence of a legally
enforceable debt or liability. It has been contended that since the
complainant did not conclusively show whether a debt was owed
to him in respect of a hand loan or in relation to expenditure
incurred during the construction of the accused's house, the
existence of a legally enforceable debt or liability had not been
shown, thereby creating a probable defence for the accused.
Counsel appearing for the appellant-accused has relied on a
decision given by a division bench of this Court in Krishna
Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54,
the operative observations from which are reproduced below
(S.B. Sinha, J. at Paras. 29-32, 34 and 45):
“29. Section 138 of the Act has three ingredients viz:
(i) that there is a legally enforceable debt
(ii) that the cheque was drawn from the account of bank for
discharge in whole or in part of any debt or other liability which
presupposes a legally enforceable debt; and
(iii) that the cheque so issued had been returned due to
insufficiency of funds.
30. The proviso appended to the said section provides for
compliance with legal requirements before a complaint petition
can be acted upon by a court of law. Section 139 of the Act
merely raises a presumption in regard to the second aspect of
the matter. Existence of legally recoverable debt is not a matter
of presumption under Section 139 of the Act. It merely raises a
presumption in favour of a holder of the cheque that the same
has been issued for discharge of any debt or other liability.
31. The courts below, as noticed hereinbefore, proceeded on
the basis that Section 139 raises a presumption in regard to
existence of a debt also. The courts below, in our opinion,
Indian Law Reports (Delhi) ILR (2011) VI Delhi627 628M. Arun Ahluwalia v. Arun Oberoi & Anr. (Mukta Gupta, J.)
committed a serious error in proceeding on the basis that for
proving the defence the accused is required to step into the
witness box and unless he does so he would not be discharging
his burden. Such an approach on the part of the courts, we feel,
is not correct.
32. An accused for discharging the burden of proof placed
upon him under a statute need not examine himself. He may
discharge his burden on the basis of the materials already brought
on record. An accused has a constitutional right to maintain
silence. Standard of proof on the part of the accused and that
of the prosecution in a criminal case is different….
34. Furthermore, whereas prosecution must prove the guilt of
an accused beyond all reasonable doubt, the standard of proof so
as to prove a defence on the part of the accused is `preponderance
of probabilities'. Inference of preponderance of probabilities can
be drawn not only from the materials brought on record by the
parties but also by reference to the circumstances upon which
he relies.”
(Emphasis supplied)
Specifically in relation to the nature of the presumption
contemplated by Section 139 of the Act, it was observed;
“45. We are not oblivious of the fact that the said provision
has been inserted to regulate the growing business, trade,
commerce and industrial activities of the country and the strict
liability to promote greater vigilance in financial matters and to
safeguard the faith of the creditor in the drawer of the cheque
which is essential to the economic life of a developing country
like India. This however, shall not mean that the courts shall put
a blind eye to the ground realities. Statute mandates raising of
presumption but it stops at that. It does not say how presumption
drawn should be held to have been rebutted. Other important
principles of legal jurisprudence, namely, presumption of
innocence as a human right and the doctrine of reverse burden
introduced by Section 139 should be delicately balanced. Such
balancing acts, indisputably would largely depend upon the factual
matrix of each case, the materials brought on record and having
regard to legal principles governing the same.”
(Emphasis supplied)
11. With respect to the decision cited above, counsel appearing
for the respondent-claimant has submitted that the observations
to the effect that the `existence of legally recoverable debt is not
a matter of presumption under Section 139 of the Act' and that
`it merely raises a presumption in favour of a holder of the
cheque that the same has been issued for discharge of any debt
or other liability' [See Para. 30 in Krishna Janardhan Bhat
(supra)] are in conflict with the statutory provisions as well as
an established line of precedents of this Court. It will thus be
necessary to examine some of the extracts cited by the
respondent-claimant. For instance, in Hiten P. Dalal v.
Bratindranath Banerjee (2001) 6 SCC 16, it was held (Ruma
Pal, J. at Paras. 22-23):
“22. Because both Sections 138 and 139 require that the
Court `shall presume' the liability of the drawer of the cheques
for the amounts for which the cheques are drawn, ..., it is
obligatory on the Court to raise this presumption in every case
where the factual basis for the raising of the presumption has
been established. It introduces an exception to the general rule
as to the burden of proof in criminal cases and shifts the onus
on to the accused (...). Such a presumption is a presumption of
law, as distinguished from a presumption of fact which describes
provisions by which the court may presume a certain state of
affairs. Presumptions are rules of evidence and do not conflict
with the presumption of innocence, because by the latter all that
is meant is that the prosecution is obliged to prove the case
against the accused beyond reasonable doubt. The obligation on
the prosecution may be discharged with the help of presumptions
of law or fact unless the accused adduces evidence showing the
reasonable probability of the non-existence of the presumed fact.
23. In other words, provided the facts required to form the
basis of a presumption of law exists, the discretion is left with
the Court to draw the statutory conclusion, but this does not
preclude the person against whom the presumption is drawn
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from rebutting it and proving the contrary. A fact is said to be
proved when, after considering the matters before it, the Court
either believes it to exist, or considers its existence so probable
that a prudent man ought, under the circumstances of the
particular case, to act upon the supposition that it exists.
Therefore, the rebuttal does not have to be conclusively established
but such evidence must be adduced before the Court in support
of the defence that the Court must either believe the defence to
exist or consider its existence to be reasonably probable, the
standard of reasonability being that of the prudent man.”
(Emphasis supplied)
12. The respondent-claimant has also referred to the decision
reported as Mallavarapu Kasivisweswara Rao v. Thadikonda
Ramulu Firm and Ors. 2008 (8) SCALE 680, wherein it was
observed:
“Under Section 118(a) of the Negotiable Instruments Act, the
court is obliged to presume, until the contrary is proved, that the
promissory note was made for consideration. It is also a settled
position that the initial burden in this regard lies on the defendant
to prove the non-existence of consideration by bringing on record
such facts and circumstances which would lead the Court to
believe the non-existence of the consideration either by direct
evidence or by preponderance of probabilities showing that the
existence of consideration was improbable, doubtful or illegal....
This decision then proceeded to cite an extract from the earlier
decision in Bharat Barrel & Drum Manufacturing Company
v. Amin Chand Pyarelal, (1999) 3 SCC 35: (AIR 1999 SC
1008) (Para.12):
“Upon consideration of various judgments as noted hereinabove,
the position of law which emerges is that once execution of the
promissory note is admitted, the presumption under Section 118(a)
would arise that it is supported by a consideration. Such a
presumption is rebuttable. The defendant can prove the non-
existence of a consideration by raising a probable defence. If the
defendant is proved to have discharged the initial onus of proof
ˇshowing that the existence of consideration was improbably or
doubtful or the same was illegal, the onus would shift to the
plaintiff who will be obliged to prove it as a matter of fact and
upon its failure to prove would disentitle him to the grant of
relief on the basis of the negotiable instrument. The burden upon
the defendant of proving the non-existence of the consideration
can be either direct or by bringing on record the preponderance
of probabilities by reference to the circumstances upon which he
relies. In such an event, the plaintiff is entitled under law to rely
upon all the evidence led in the case including that of the plaintiff
as well. In case, where the defendant fails to discharge the initial
onus of proof by showing the non-existence of the consideration,
the plaintiff would invariably be held entitled to the benefit of
presumption arising under Section 118(a) in his favour. The
court may not insist upon the defendant to disprove the existence
of consideration by leading direct evidence as the existence of
negative evidence is neither possible nor contemplated and even
if led, is to be seen with a doubt. The bare denial of the passing
of the consideration apparently does not appear to be any defence.
Something which is probable has to be brought on record for
getting the benefit of shifting the onus of proving to the plaintiff.
To disprove the presumption, the defendant has to bring on
record such facts and circumstances upon consideration of which
the court may either believe that the consideration did not exist
or its non-existence was so probable that a prudent man would,
under the circumstances of the case, act upon the plea that it did
not exist.”
(Emphasis supplied)
Interestingly, the very same extract has also been approvingly
cited in Krishna Janardhan Bhat (supra).
13. With regard to the facts in the present case, we can also
refer to the following observations in M.M.T.C. Ltd. and Anr.
v. Medchl Chemicals & Pharma (P) Ltd. (2002) 1 SCC 234
(Para. 19):
“...The authority shows that even when the cheque is
dishonoured by reason of stop payment instruction, by virtue of
Section 139 the Court has to presume that the cheque was
Indian Law Reports (Delhi) ILR (2011) VI Delhi631 632M. Arun Ahluwalia v. Arun Oberoi & Anr. (Mukta Gupta, J.)
received by the holder for the discharge in whole or in part, of
any debt or liability. Of course this is a rebuttable presumption.
The accused can thus show that the `stop payment' instructions
were not issued because of insufficiency or paucity of funds. If
the accused shows that in his account there was sufficient funds
to clear the amount of the cheque at the time of presentation of
the cheque for encashment at the drawer bank and that the stop
payment notice had been issued because of other valid causes
including that there was no existing debt or liability at the time
of presentation of cheque for encashment, then offence under
Section 138 would not be made out. The important thing is that
the burden of so proving would be on the accused....” (Emphasis
supplied)
14. In light of these extracts, we are in agreement with the
respondent-claimant that the presumption mandated by Section
139 of the Act does indeed include the existence of a legally
enforceable debt or liability. To that extent, the impugned
observations in Krishna Janardhan Bhat (supra) may not be
correct. However, this does not in any way cast doubt on the
correctness of the decision in that case since it was based on the
specific facts and circumstances therein. As noted in the citations,
this is of course in the nature of a rebuttable presumption and
it is open to the accused to raise a defence wherein the existence
of a legally enforceable debt or liability can be contested.
However, there can be no doubt that there is an initial presumption
which favours the complainant. Section 139 of the Act is an
example of a reverse onus clause that has been included in
furtherance of the legislative objective of improving the credibility
of negotiable instruments. While Section 138 of the Act specifies
a strong criminal remedy in relation to the dishonour of cheques,
the rebuttable presumption under Section 139 is a device to
prevent undue delay in the course of litigation. However, it must
be remembered that the offence made punishable by Section 138
can be better described as a regulatory offence since the bouncing
of a cheque is largely in the nature of a civil wrong whose
impact is usually confined to the private parties involved in
commercial transactions. In such a scenario, the test of
proportionality should guide the construction and interpretation
of reverse onus clauses and the accused/defendant cannot be
expected to discharge an unduly high standard or proof. In the
absence of compelling justifications, reverse onus clauses usually
impose an evidentiary burden and not a persuasive burden. Keeping
this in view, it is a settled position that when an accused has to
rebut the presumption under Section 139, the standard of proof
for doing so is that of ‘preponderance of probabilities’. Therefore,
if the accused is able to raise a probable defence which creates
doubts about the existence of a legally enforceable debt or liability,
the prosecution can fail. As clarified in the citations, the accused
can rely on the materials submitted by the complainant in order
to raise such a defence and it is conceivable that in some cases
the accused may not need to adduce evidence of his/her own.”
9. In R. Vinod Shivappa (Supra) their Lordship’s have interpreted
Section 138 of NI Act as under:
“12. It is well settled that in interpreting a statute the court must
adopt that construction which suppresses the mischief and
advances the remedy. This is a rule laid down in Heydon's case
(76 ER 637) also known as the rule of purposive construction
or mischief rule.
13. Section 138 of the Act was enacted to punish those
unscrupulous persons who purported to discharge their liability
by issuing cheques without really intending to do so, which was
demonstrated by the fact that there was no sufficient balance in
the account to discharge the liability. Apart from civil liability, a
criminal liability was imposed on such unscrupulous drawers of
cheques. The prosecution, however, was made subject to certain
conditions. With a view to avoid unnecessary prosecution of an
honest drawer of a cheque, or to give an opportunity to the
drawer to make amends, the proviso to Section 138 provides
that after dishonour of the cheque, the payee or the holder of the
cheque in due course must give a written notice to the drawer
to make good the payment. The drawer is given 15 days time
from date of receipt of notice to make the payment, and only if
he fails to make the payment he may be prosecuted. The object
which the proviso seeks to achieve is quite obvious. It may be
that on account of mistake of the bank, a cheque may be returned
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despite the fact that there is sufficient balance in the account
from which the amount is to be paid. In such a case if the
drawer of the cheque is prosecuted without notice, it would
result in great in-justice and hardship to an honest drawer. One
can also conceive of cases where a well intentioned drawer may
have inadvertently missed to make necessary arrangements for
reasons beyond his control, even though he genuinely intended
to honour the cheque drawn by him. The law treats such lapses
induced by inadvertence or negligence to be pardonable, provided
the drawer after notice makes amends and pays the amount
within the prescribed period. It is for this reason that Clause (c)
of proviso to Section 138 provides that the section shall not
apply unless the drawer of the cheque fails to make the payment
within 15 days of the receipt of the said notice. To repeat, the
proviso is meant to protect honest drawers whose cheques may
have been dishonoured for the fault of others, or who may have
genuinely wanted to fulfill their promise but on account of
inadvertence or negligence failed to make necessary arrangements
for the payment of the cheque. The proviso is not meant to
protect unscrupulous drawers who never intended to honour the
cheques issued by them, it being a part of their modus operandi
to cheat unsuspecting persons.”
10. This court in Vijay Chaudhary vs. Gyan Chand Jain, 2008(2)
DCR 685 dealt with a similar situation and held that where a cheque is
dishonored for any reason it has to be co-related to the insufficiency of
funds in the account. I agree with the same as the legislative intent is to
stop the dishonoring of cheque and adopt a no-nonsense situation and
punish the unscrupulous person who purport to discharge this liability by
issuing cheques, not intending to do honour it by insufficiency of funds
in their accounts. I find force in the contention of learned counsel for
the respondent that the summoning order of the trial court cannot be
quashed merely on the assertion of the Petitioner that he did not revalidate
the cheque. It is a matter which needs to be proved at trial and hence
this court cannot go into the said issue. Reliance in this regard on the
case of Veera Exports (Supra) is well placed, wherein their Lordship’s
held:
9. The High Court has also placed reliance on Section 87 of the
Negotiable Instruments Act, which reads as follows:
"87. Effect of material alteration - Any material alteration of a
negotiable instrument renders the same void as against any one
who is a party thereto at the time of making such alteration and
does not consent thereto, unless it was made in order to carry
out the common intention of the original parties;
Alteration by indorsee - Any such alteration, if made by an
indorsee, discharges his indorse from all liability to him in respect
of the consideration thereof.
The provisions of this section are subject to those of sections
20, 49, 86 and 125."
The first paragraph of Section 87 makes it clear that the party
who consents to the alteration as well as the party who made the
alteration are disentitled to complain against such alteration, e.g.
if the drawer of the cheque himself altered the cheque for
validating or revalidating the same instrument he cannot take
advantage of it later by saying that the cheque became void as
there is material alteration thereto. Further, even if the payee or
the holder of the cheque made the alteration with the consent of
the drawer thereof, such alteration also cannot be used as a
ground to resist the right of the payee or the holder thereof. It
is always a question of fact whether the alteration was made by
the drawer himself or whether it was made with the consent of
the drawer. It requires evidence to prove the aforesaid question
whenever it is disputed.
10. It is held by the High Court that a change of date is a
material alteration which affected the interests of the Respondent.
It is held that the Respondent not being a willing party to the said
alteration, the cheques were void as contemplated by Section 87
of the Negotiable Instruments Act. At this stage there is no basis
for arriving at such a conclusion. In the earlier part of the
impugned Judgment it has been correctly held that this is a
question of fact. This is a fact which will have to be established
on evidence during trial. At this stage the High Court could not
have quashed the complaint merely on the basis of an assertion
Indian Law Reports (Delhi) ILR (2011) VI Delhi635 636R.K.P. Nishad v. C.B.I. (M.L. Mehta, J.)
in the reply.
11. Under the circumstances the impugned order is set aside.
The Petition filed by the Respondent stands dismissed. The Judicial
Magistrate II, Karur shall now proceed with the complaint in
accordance with law.”
11. Thus, in view of the decisions noted above and the fact that
petitioner’s contention that he did not revalidate any cheque and had no
legal liability to pay is a question of fact which needs to be proved and
determined at trial by way of evidence, the petition is dismissed.
ILR (2011) VI DELHI 635
CRL.APPEAL
R.K.P. NISHAD ....APPELLANT
VERSUS
C.B.I. ...RESPONDENT
(M.L. MEHTA, J.)
CRL. APPEAL NO. : 602/2002 DATE OF DECISION: 08.07.2011
CRL.M.A. NO. : 2010/2002
Prevention of Corruption Act, 1988—Sections 7 & 13—
Appellant aggrieved by his conviction under Section 7
& 13(1)(d) of Act, had preferred appeal and urged no
evidence against him with regard to demand or
acceptance of any bribe money from complainant—
Thus, his conviction not proper—On behalf of State
argument raised, from testimony of independent
witness proved that appellant demanded as well as
accepted bribe money for doing favour to complainant;
therefore, conviction legal—Held:- Under Section
13(1)(d), it is required to be proved that accused, as
a public servant, obtained for himself or any other
person any valuable thing or pecuniary advantage by
corrupt or illegal means or that the misused his
position in obtaining for himself or any other person
any valuable thing or pecuniary advantage—Statutory
presumption under Section 20 of Act is available for
offence punishable under Section 7 or Section 11 or
Clause (a) and Clause (b) of Section 13 (1) and not for
Clause (d) of Section 13 (1)—For offence under Section
13(1)(d), it will be required to be proved that some
initiative was taken by a person who receives and in
that context demand or request from him will be a pre-
requisite—Appellant rightly held guilty for offences.
After the recovery of tainted money from an accused is
proved, a presumption under Section 20 of the Act is
available to be drawn against him that he accepted
gratification as a motive or reward as mentioned in Section
7 or, as the case may be, without consideration or for a
consideration which he knows to be inadequate. The
requirement of this Section is only that it must be proved
that the accused has accepted or obtained or agreed to
accept or attempted to obtain gratification. At the same time
it is settled proposition of law that the said presumption is
rebuttable and the same could be rebutted by the accused
either from the cross examination of prosecution witnesses
or by leading defence evidence. (Para 9)
Important Issue Involved: Statutory presumption under
Section 20 of Act is available for offence punishable under
Section 7 or Section 11 or Clause (a) and Clause (b) of
Section 13 (1) and not for Clause (d) of Section 13(1)—
For offence under Section 13(1)(d), it will be required to be
proved that some initiative was taken by a person who
receives and in that context demand or request from him
will be a pre-requisite.
[Sh Ka]
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APPEARANCES:
FOR THE APPELLANT : Mr. K.B. Andley, Ar. Advocate with
Mr. M. Shamikh, Advocates for the
Appellant.
FOR THE RESPONDENT : Mr. Narender Maan, Special Public
Prosecutor for CBI.
CASES REFERRED TO:
1. C.M. Girish Babu vs. CBI, Cochin, High Court of Kerala
(2009) 3 SCC 779.
2. Subash Parbat Sonvane vs. State of Gujarat, AIR 2003
SC 2169.
3. State of A.P. vs. V. Vasudeva Rao, (2004) 9 SCC 319.
4. C.K. Damodaran Nair vs. Govt. of India 1997 Crl.L.J.
739.
5. M.W. Mohiuddin vs. State of Maharashtra 1995 (2) SCR
864.
6. State of Madras vs. A. Vidyanatha Iyer, AIR 1958 SC
61.
7. Ram Krishan and another vs. State of Delhi (1956) SCR
183.
8. Rao Shiv Bahadur vs. State of Vindhya Pradesh, AIR
1954 SC 322.
RESULT: Appeal dismissed.
M.L. MEHTA, J.
1. The Appellant has been convicted by learned Special Judge in a
corruption case number 52/94 vide judgment dated 18th July, 2002 and
sentenced vide order dated 22nd July, 2002 as under:
“Sentenced to undergo imprisonment for a period of three years
R.I. under Section 7 as well as under Section 13(1)(d) of
Prevention of Corruption Act and also to pay a fine of Rs. 1,000/
- each for both these offences and in default of payment of fine
to undergo imprisonment for a period of three months each.
2. By virtue of present appeal, the Appellant/ convict has assailed
the judgment and order of conviction and sentence. The prosecution case
as set out in brief is that the Appellant was employed as Producer,
Grade-II, in Doordarshan Kendra, Directorate of Doordarshan. Neeraj
Kumar (PW1) had approached him for telecasting his drama “Dahej” in
Krishi Darshan programme of Doordarshan on TV. The drama was
approved by the Department, but the Appellant was allegedly shifting the
dates of rehearsal for some reason or the other. Since the Appellant was
demanding bribe money for doing favour for telecasting the said drama
and the complainant PW1 not being willing to pay, filed a complaint
Ex.PW1/A against the Appellant with CBI mentioning these allegations. It
was specifically alleged in the complaint that on 21st September 1990
when the complainant met the accused for approval of his drama, the
latter told him that his drama would be approved only if he was paid Rs.
1800/- which the drama team were to get from Doordarshan, and another
sum of Rs. 6500/-. It was alleged by the complainant that a sum of
Rs.1900/- was lying with him and another sum of Rs. 5500/- with Ms.
Vimal Bhatnagar known as Mataji and in this way Rs.7400/- were supposed
to be paid to the Appellant on 22nd September 1999 for approval /
shooting of the drama and that the Appellant wanted that this money
should be paid to him at the residence of Mataji(PW5 Mrs. Vimal
Bhatnagar). Mataji was also one of the artists of the said drama “Dahej”.
As per the complaint, the complainant came to the office of CBI on 21st
September 1990 and talked to the Appellant on phone from there. A
meeting was fixed at the residence of PW5 where rehearsal of the drama
was to be watched by the Appellant and he was also to be paid the bribe
money as demanded. This telephonic conversation between the complainant
and the Appellant was recorded by CBI officials and transcript thereof
was also prepared. From the office of CBI, the complainant also talked
to Mataji on telephone and told her to keep the amount of Rs.5500/-
ready for paying the same to the Appellant as bribe as per the talks with
him. This conversation was also recorded by CBI officials and its transcript
prepared. CBI Inspector A.G.L Kaul (PW12) verified the reputation of
the Appellant and after confirming his reputation to be a corrupt official,
decided to lay a trap. A raiding party consisting of PW12, two independent
witnesses Ms.Poonam (PW3), Mr.S.D. Roy (PW10), complainant and
other officials of CBI was organized. The complainant, as directed,
produced 16 currency notes of denomination of Rs.100/- each and 6
currency notes of Rs.50/- each before Inspector A.G.L. Kaul who noted
Indian Law Reports (Delhi) ILR (2011) VI Delhi639 640R.K.P. Nishad v. C.B.I. (M.L. Mehta, J.)
down the numbers of those notes in the handing over memo (Ex.PW3/
C). The usual pre-trap proceedings comprised of treating these currency
notes with phenolphthalein powder, giving of demonstration to the
complainant and the witnesses as to how this powder will react with the
solution of sodium carbonate, giving of directions to the complainant to
give money to the Appellant on a specific demand and advising of the
shadow witness Poonam to give a predetermined signal etc. PW3 Poonam
was also instructed to remain close to the complainant to hear the
conversation and watch the transaction. PW3 Poonam was also carrying
a cassette tape recorder in her purse for recording the conversation. As
per pre-decided programme, the complainant and PW3 Poonam went to
the house of PW5 Mataji where other members of the raiding party also
arrived and took their positions. The Appellant came to the house of PW5
and on his demand, he was paid Rs.7400/- by the complainant which
included 22 phenolphthalein power treated currency notes in possession
of the complainant and Rs.5500/- lying with PW5 Mataji. PW3 gave pre-
arranged signal to the CBI officials, whereupon they came in and
challenged the Appellant. The Appellant became perplexed and confused
and on the pointing out of PW3 Poonam, the amount of Rs. 7400/-,
taken as bribe by the Appellant, was recovered from the briefcase of the
Appellant. The numbers of treated currency notes Ex.P1 to P22 totaling
Rs. 1900/- tallied with the numbers of already noted down currency
notes vide pre-raid memo Ex.PW3/C. Both the hands of the Appellant
and the polythene bag from which the notes were recovered were dipped
separately in the sodium carbonate solution. The solutions turned pink
which confirmed that the Appellant had handled the tainted money. Later
two washes of the hands and one wash of the pocket pant were got
analyzed from CFSL vide report Ex.PW6/A. All the three solutions gave
positive tests for presence of phenolphthalein in the solution of sodium
carbonate thereby further confirming the handling of currency notes by
the Appellant. After obtaining sanction under Section 19 of the Act for
the prosecution of the Appellant, he was charge-sheeted. In the Court,
charges were framed against the Appellant under Section 7 and 13(1)(d)
of the Act, to which he pleaded not guilty and claimed trial.
3. The prosecution examined 13 witnesses which included
complainant (PW1), panch witnesses Poonam (PW3) and Mr.Roy (PW10)
and the raiding officer AGL Kaul (PW12).
4. The statement of accused was recorded under Section 313 Cr.P.C
wherein the incriminating evidence was put to him. The Appellant denied
the prosecution allegations and pleaded innocence. He denied having
demanded and accepted bribe from the complainant. He also filed his
written statement stating therein that he was working as a Producer,
Grade-II in Doordarshan and knew the complainant Neeraj Kumar(PW1)
as he was an actor and organizer of T.V short plays for Krishi Darshan
programme and that earlier also his plays were supervised and approved
by the Appellant for telecasting the same on television. He admitted that
he was supervising the complainant’s play “Dahej”. He pleaded that the
play had already been approved and sanctioned by Doordarshan on 20th
September 1990 vide letter Ex.PW7/DA. He also pleaded that the
complainant was carrying a grudge against him since he (complainant)
had earlier teased one lady artist Kiran and on the matter being reported
to him (Appellant), he reprimanded the complainant in presence of PW5
Mataji, and other artists. He also alleged that final rehearsal of the play
“Dahej” was fixed for 22nd September 1990 and on that day, decision
was to be taken regarding place, time and date for holding a Bhagwati
Jagran. He pleaded that it was for Bhagwati Jagran that the artists had
collected some money which was kept with PW5 and the complainant
and that they all agreed to keep that money with him and requested him
that he should organize the Jagran, to which he had agreed being a
religious minded person. He pleaded that on 22nd September 1990 he had
gone at the residence of PW5 Mataji where he was given the money
collected by the artists for Jagran. It was this money which he had kept
in the briefcase and was later recovered by the raiding team.
5. Learned Senior Counsel Mr. K.B. Andley contends for the
Appellant that when the drama “Dahej” had already been approved on
20th September 1990 by the Department, there was neither any occasion
nor any reason for the Appellant to have demanded or the complainant
to give any bribe to the Appellant. Learned Senior Counsel submits that
both the complainant (PW1) as well as PW5 Mataji have admitted that
the said payment of Rs.7400/- to the Appellant was the money collected
for organizing Jagran by him and that there is no evidence against the
Appellant with regard to the demand or acceptance of any bribe money
from the complainant. Learned Senior Counsel further submits that the
complainant was carrying a grudge against the Appellant for the reason
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that the Appellant had reprimanded him because of his misbehavior with
a lady artist Kiran on an earlier occasion and because of the Appellant
having changed her role from heroine to that of sister.
6. Learned Prosecutor Mr. Narender Maan submits that the initial
statement of complainant (PW1) recorded on 5th February 1998 supports
the allegations made in the complaint, but later in his cross examination
recorded after three years on 1st March, 2001, he resiled therefrom and
came out with the version that the money was given to the Appellant for
organizing Bhagwati Jagran. He submits that PW5 also resiled from her
statement (Ex.PW5/A) made during investigation, wherein she had
confirmed the demand of bribe by the Appellant from the complainant
and that a sum of Rs.1900/- was kept with the complainant for giving
the same to the Appellant. He submits that both the complainant as well
as PW5 Mataji have resiled from their statements because of having been
won over by the Appellant during the long period of the incident and their
deposition made in the Court. He also submits that though the drama
“Dahej” had already been approved and confirmed, but the telecasting
of the same was subject to approval and rehearsal by the Appellant. He
further submits that from the admissible part of evidence of PW1, PW5
and testimony of independent witnesses PW3 Poonam, it stood proved
that the Appellant demanded as well as accepted Rs.7400/- as bribe for
doing favour to complainant for telecasting their serial.
7. It is an undisputed fact that the Appellant was employed in
Doordarshan Kendra, New Delhi at the relevant time and being a Producer
Grade-II was in-charge and responsible for approving the serials for
telecasting the same on Doordarshan. It is also not disputed that the
complainant and the Appellant were known to each other as the Appellant
had already supervised and approved the earlier serials of the complainant.
The Appellant also admits that as a producer, he had the authority to
approve telecasting of the plays at Doordarshan Channel on Television.
He admits that he was present at the house of PW5 Mataji on 22nd
September 1990 and that a sum of Rs.7400/- including Rs. 1900/- treated
with phenolphthalein power were recovered from his briefcase. The
defence of the Appellant that he received this money as collection from
artists for organizing Bhagwati Jagran, will be dealt with later.
8. It is settled law that for establishing an offence under Section
13(1) (d), it is required to be proved that the accused, as a public
servant, obtained for himself or any other person any valuable thing or
pecuniary advantage by corrupt or illegal means or that he misused his
position in obtaining for himself or any other person any valuable thing
or pecuniary advantage. In the case of Subash Parbat Sonvane v State
of Gujarat, AIR 2003 SC 2169, the Supreme Court held as under:
“7. In Sections 7 and 13(1)(a) and (b) of the Act, the Legislature
has specifically used the words 'accepts' or 'obtains'. As against
this, there is departure in the language used in clause (1) (d) of
Section 13 and it has omitted the word 'accepts' and ˇhas
emphasized the word 'obtains'. Further, the ingredient of sub-
clause (i) is that by corrupt or illegal means, a public servant
obtains any valuable thing or pecuniary advantage; under clause
(ii), he obtains such thing by abusing his position as public
servant; and sub-clause (iii) contemplates that while holding office
as the public servant, he obtains for any person any valuable
thing or pecuniary advantage without any public interest.
Therefore, for convicting the person under Section 13(1)(d),
there must be evidence on record that accused 'obtained' for
himself or for any other person any valuable thing or pecuniary
advantage by either corrupt or illegal means or by abusing his
position as a public servant or he obtained for any person any
valuable thing or pecuniary advantage without any public interest.”
9. After the recovery of tainted money from an accused is proved,
a presumption under Section 20 of the Act is available to be drawn
against him that he accepted gratification as a motive or reward as
mentioned in Section 7 or, as the case may be, without consideration or
for a consideration which he knows to be inadequate. The requirement
of this Section is only that it must be proved that the accused has
accepted or obtained or agreed to accept or attempted to obtain gratification.
At the same time it is settled proposition of law that the said presumption
is rebuttable and the same could be rebutted by the accused either from
the cross examination of prosecution witnesses or by leading defence
evidence. In this regard, reference is made to the case of C.M. Girish
Babu v CBI, Cochin, High Court of Kerala (2009) 3 SCC 779, wherein
it is held:
“21. It is well settled that the presumption to be drawn under
Section 20 is not an inviolable one. The accused charged with
Indian Law Reports (Delhi) ILR (2011) VI Delhi643 644R.K.P. Nishad v. C.B.I. (M.L. Mehta, J.)
the offence could rebut it either through the cross examination
of the witnesses cited against him or by adducing reliable evidence.
If the accused fails to disprove the presumption the same would
stick and then it can be held by the Court that the prosecution
has proved that the accused received the amount towards
gratification.”
10. In case of M.W. Mohiuddin v State of Maharashtra 1995 (2)
SCR 864, the Supreme Court referring to the case of Ram Krishan and
another v State of Delhi (1956) SCR 183 as well as dictionary meaning
of the word “obtains” observed as under:
“…whether there was an acceptance of what is given as a bribe
and whether there was an effort on the part of the receiver to
obtain the pecuniary advantage by way of acceptance of the
bribe depends on the facts and circumstances of each case. In
that case, the Court held that it was proved that accused made
a demand and also got the affirmation from the complainant that
he had brought the demanded money and at his instance, the
complainant wrapped the money in the handkerchief given by the
accused and placed the same in the bag which was brought by
the accused and as asked by him, these steps have been taken
into consideration in arriving at the conclusion that the accused
had in fact “obtained” the pecuniary advantage, namely, that he
received the illegal gratification. Therefore, the Court upheld the
conviction under Section 13(1)(d).
11. In the case of C.K. Damodaran Nair v. Govt. of India 1997
Crl.L.J. 739, the Supreme Court considered the word “obtain” used in
Section 5(1)(d) and held as under:
“12. The position will, however, be different so far as an offence
under Section 5(1)(d) read with Section 5(2) of the Act is
concerned. For such an offence, prosecution has to prove that
the accused “obtained the valuable thing or pecuniary advantage
by corrupt or illegal means or by otherwise abusing his position
as a public servant and that too without the aid of the statutory
presumption under Section 4(1) of the Act as it is available only
in respect of offences under Section 5(1)(a) and (b)—and not
under Section 5(1)(c), (d) or (e) of the Act, “Obtain” means to
secure or gain (something) as the result of request or effort
(Shorter Oxford Dictionary). In case of obtainment the initiative
vests in the person who receives and in that context a demand
or request from him will be a primary requisite for an offence
under Section 5(1)(d) of the Act unlike an offence under Section
161 IPC, which as noticed above can be, established by proof
of either “acceptance” or “obtainment”.
12. In view of above propositions of law, it is recapitulated that the
statutory presumption under Section 20 of the Act is available for the
offence punishable under Section 7 or Section 11 or Clause (a) and
Clause (b) of Section 13(1) and not for Clause (d) of Section 13(1). For
offence under Section 13(1)(d), it will be required to be proved that
some initiative was taken by a person who receives and in that context
demand or request from him will be a pre-requisite.
13. We may now proceed to see as to whether the prosecution is
able to establish this pre-requisite of demand or request emanating from
the Appellant in accepting the tainted money. For establishing this fact,
the prosecution has relied upon the testimony of the complainant (PW1),
panch witnesses Poonam (PW3), raiding officer Mr. A.G.L. Kaul (PW12),
recovery of tainted money from the Appellant, tape-recorded conversation
between the Complainant and the Appellant and CFSL report Ex.PW6/A.
Though PW1 was allowed to be cross examined by the learned Public
Prosecutor after cross examination by the learned defence counsel, but
reading his testimony as a whole it would be seen that he supported the
prosecution case throughout in his examination-in-chief as recorded on
5th February 1998, but later on in his cross examination recorded after
a lapse of three years, while again supporting the prosecution case, he
resiled to the extent by stating that he and other artists had collected
money for organizing the Jagran and that the Appellant had also told the
raiding officer that he had accepted the money and kept the same in his
briefcase as the same was given to him for organizing Bhagwati Jagran
before telecasting the drama “Dahej”. He deviated from his earlier
statement by stating that the Appellant had merely demanded the money
from him and he never used the word “bribe” in his talks with him. He
also stated that he felt sorry over the trap of the Appellant on coming to
know the truth that the money was collected for giving him for organizing
Bhagwati Jagran.
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14. In his examination-in-chief PW1 deposed that he knew the
Appellant as he had been meeting him in connection with telecast of his
plays on television. He approached the Appellant for telecasting his play
“Dahej”. Although the Appellant watched 3-4 rehearsals initially, but
then he started putting him under pressure and finally told him that he
will have to pay him an amount of two cheques of Rs. 900/- each which
would be received by him and PW5 from Doordarshan and another sum
of Rs. 6500/-. He stated that the Appellant told him that till the payment
is made, shooting of the play cannot be done and that he will arrange the
telecasting of play only when he is paid the aforesaid money. He stated
that there are no telecasting charges and in fact the money is paid to the
artists for performing such programmes. He went on to depose that he
was to get a cheque of Rs. 900/-from Doordarshan and the Appellant
wanted to take that amount plus Rs. 6500/- i.e. Rs. 7400/- from him and
cheque amount of `900/- from PW5 which she was also to get from
Doordarshan. This was all in conformity with the complaint made by him
with CBI vide Ex.PW1/A. He further deposed that he went to CBI office
on 21st September 1990 and lodged a complaint Ex.PW1/A against the
Appellant regarding his demand of bribe for telecasting the play “Dahej”.
He has further deposed with regard to association of two public witnesses,
his making telephone calls to the Appellant at the office of CBI and the
Appellant asking him to bring money on 22nd September 1990 at about
1-2 pm, his asking PW5 Mataji to keep Rs. 5500/- ready and the recording
of the said conversation. He also deposed about making of transcription
of the conversation with the Appellant and PW5 Mataji as Ex.PW1/B and
the other one as Ex.PW1/C. The cassette Ex.PW1/F in which the
conversations between the complainant and the accused and between
complainant and Mataji (PW-5) were recorded was played in the court
also during the examination-in-chief of PW1 and then he proved the
transcript Ex.PW1/B. He then deposed about association of panch witnesses
i.e. PW3 Ms. Poonam and PW10 Mr.Roy and his handing over 16
currency notes of Rs.100/- each and 6 currency notes of Rs. 50/- each
to CBI officials, the treatment of phenolphthalein powder on the currency
notes and noting down their numbers in handing over memo Ex.PW3/C.
He deposed about the demonstration by Mr. S.P. Peshin by getting the
fingers of PW3 Poonam dipped in the solution, the same turning pink,
he being instructed to hand over the treated currency notes to the Appellant
on specific demand and PW3 Ms. Poonam being directed to act as a
shadow witness by giving signal by scratching her head with her hand.
He also deposed about arrival of raiding party at the residence of PW5
and also arrival of Appellant there at about 2 pm. He specifically stated
about the Appellant having asked for the money after the rehearsal and
the amount of Rs. 7400/- being given to him, including Rs. 1900/-,
currency notes treated with phenolphthalein powder and the remaining
amount of Rs. 5500/- taken from PW5 Mataji. In his cross examination,
there is no challenge to this incriminating part of his evidence. Major part
of his cross examination centered around the questions relating to collection
of money for Bhagwati Jagran as noted above. This defence of the
Appellant shall be dealt with little later.
15. Now coming back to the cross examination of PW1, the
complainant, it is noted that he admitted that earlier also, he had come
in contact with the Appellant and that he was conversant with the procedure
as to how the telecast of the drama was to be approved by Doordarshan.
He admitted that this drama “Dahej” had been approved on or before
20th September, 1990 for telecasting on television and he had signed the
documents in token of acknowledgment that the drama has been approved
and he had also executed a pre-receipt of Rs. 900/-. Since he took the
plea that money was to be given to the Appellant for organizing Bhagwati
Jagran which is inconsistent with his complaint and previous statement,
the learned Public Prosecutor chose to cross examine him, wherein
significantly he admitted that he had not told to CBI in his statement
recorded earlier that the money was given to the Appellant for organizing
Bhagwati Jagran.
16. Also significantly, the Complainant also admitted that he did not
mention in his complaint that the money was demanded for Bhagwati
Jagran. It was specifically suggested to him by learned prosecutor that
the money was given to appellant for getting approval of his drama
“Dahej” and not for organizing Bhagwati Jagran. That being so, the
deviation made by complainant is apparently for some extraneous reasons.
Though, denied that on being challenged, the Appellant told that he did
not know anything and became perplexed. He was confronted with his
statement Ex.PW1/Y recorded by CBI after the raid, wherein it was
found to be so recorded. In his cross examination by the learned defence
counsel, he had also stated that he had given an affidavit to CBI stating
misunderstanding in lodging a complaint against the Appellant. However,
Indian Law Reports (Delhi) ILR (2011) VI Delhi647 648R.K.P. Nishad v. C.B.I. (M.L. Mehta, J.)
in his cross examination by learned public prosecutor, though he denied
that he stated to the Deputy S.P Mr. J.C. Surari that the affidavit was
given by him to CBI at the instance of the Appellant, but when confronted
with his statement Ex.PW1/Z, it was found to be so recorded there. It
was specifically put to him that he had been won over by the Appellant
and was deposing falsely to help him.
17. Since PW5 Mataji also did not support the case, she was
declared hostile and was cross examined by learned Public Prosecutor.
It is to be noted that though the Appellant had himself admitted recovery
of Rs.7400/- from complainant, but PW5 denied that the recovery was
effected from the briefcase of the Appellant. She also denied that on
comparison the number of currency notes of Rs. 1900/- tallied with the
numbers already noted in handing over memo PW1/C. Then she admitted
that the recovery memo Ex.PW3/E bears her signatures and that the
currency notes Ex.P1 to P22 are the same which were recovered from
the Appellant. It was also put to her that she has been won over by the
Appellant and she wanted to help him.
18. PW3 Ms. Poonam confirmed the allegations made in the complaint
and also examination-in-chief of PW1. She specifically stated that the
complainant had reported that the Appellant was demanding bribe from
him and the money was to be given at the house of PW5. She also
deposed about her carrying micro cassette recorder and recording of
conversation between complainant and the Appellant. She proved the
handing over memo Ex.PW1/C containing pre-trap proceedings. She
specifically stated that the Appellant asked the complainant if he had
brought the money and how much it was, to which the complainant
replied in affirmative stating, Yes, Laya Hoon Rs.1900/- and that Rs.
5500/- was kept and available with Mataji. She stated that on the
Appellant’s demand, the complainant first gave him Rs.1900/- which he
counted with his both hands and simultaneously PW5 Mataji also gave
Rs. 5500/-. The said amount of Rs.5500/- was kept in a polythene bag.
The Appellant opened the same and then put Rs.1900/- inside the said
bag and then kept the polythene bag in the upper pocket of his briefcase.
She further stated that the Appellant had also demanded Rs.2,000/- from
her. She maintained in her cross examination what she stated in her
examination-in-chief. Nothing could be elicited in her cross-examination
to doubt her testimony. It is to be noted that the tape-recorded cassette
was played in the Court by learned Special Judge and she identified the
conversation that took place between her and the Appellant from the
transcript Ex.PW1/X which was prepared at the spot on 22nd September
1990. In her cross examination also she denied that the Appellant did not
demand Rs.2000/- from her or that she was deposing falsely on that
count.
19. Though PW1 diverted from his previous statement to some
extent as noted above and PW5 also turned hostile, the acceptance and
recovery of tainted money has been admitted by Appellant. The defence
of the Appellant that the said money was for the purpose of organizing
a Jagran, is highly improbable and an afterthought and admittedly it was
not stated by the complainant initially either in his complaint or in his
examination-in-chief. It was only after lapse of three years of his
examination-in-chief when he was cross examined that he came out with
this plea apparently after having been won over by the Appellant.
20. In the fact situation, it appears to be probable also since the
Appellant was producer of plays and the authority of approving the same
vested with him. Neither complainant nor PW5 could have taken any risk
of their career in future in not supporting the Appellant to come out of
the initial complaint. After discussion in detail the evidence and arguments
in this regard, the learned Special Judge recorded as under:
“It is undisputed fact that the accused was the authority
concerned for the telecast of plays on TV and so he could very
well be expected to put hurdles in the way of the complainant
in spite of his dram having been approved. If a person in authority
tells someone, like the accused in this case told to the complainant,
that a particular thing would not be done unless bribe is paid then
the persons in need, like the complainant in this case, will have
the options of either paying the bribe or to report the matter to
seniors of the persons demanding illegal gratification or to the
police. In this case the complainant chose to report the matter
to CBI and that action he must have decided to take only after
having felt frustrated because of the possibility of his play not
being telecast in spite of its having been approved for telecast.
There is nothing improbable in accused making a demand of
money for the telecast of complainant’s play in spite of it having
been approved by him and his seniors because that was only a
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paper approval and without accused’s actual green signal
complainant’s play would not have been telecast automatically.”
21. There appears to be no reason for them to have given the
money to the Appellant for organizing a Jagran which was neither the job
nor the specialization of Appellant. He was a government servant and
was not supposed to be involved in organizing Jagrans for others. The
defence taken by the Appellant is also inconsistent inasmuch as on the
one hand he stated that the complainant was carrying grudge against him
and on the other hand the complainant gave him money for organizing
Jagran. It seems that all this has been manipulated by the Appellant either
by extending some direct or indirect influence or threats to the complainant
and PW5 or on account of some extraneous ˇreasons. Assuming that
the artists had collected some money for organizing a Jagran, there is
nothing to show that the money accepted by the Appellant was meant for
organizing a Jagran. Nothing has been brought on record by him to show
that there was any prior understanding between him and Complainant or
PW5 Mataji or other artists regarding organization of Jagran. There is
also nothing to show that the Appellant had ever in the past organized any
such Jagran for telecast of dramas. It is also to be noted that PW11 is
also an artist and was present at the time of the trap. She deposed about
the presence of the Appellant in the house of PW5 on 22nd September
1990. In her cross examination, she stated that she did not contribute any
money for organizing a Jagran and that she did not know if any money
was collected for Jagran. This would show that no money was collected
for organizing a Jagran. Assuming for the sake of argument that the
money was collected from artists for the purpose of organizing the
Jagran, but that money was passed on to the Appellant as bribe money
for getting favour of telecasting the play “Dahej”.
22. With regard to the defence plea that the complainant was annoyed
with him because of his having reprimanded him on an earlier occasion
for having teased one artist Kiran, it may be noted that PW5 Mataji, who
turned hostile for the reasons as noted above, did admit about this fact
in her cross-examination. But, the fact of the matter is that since she had
turned hostile, therefore, no credence can be given to this part of her
statement. It is more so, because this was nowhere put to the complainant
in his cross-examination either by way of suggestion or otherwise. Even
no evidence much less of Kiran has been adduced by the appellant to
substantiate this defence. In any case, this fact alone was not enough to
discredit the prosecution case, which otherwise stands established for
the reasons as discussed above.
23. The accused when apprehended with the bribe money became
perplexed and confused. This could not be assumed to be normal behavior
of a person, if he was not guilty. The conduct itself was one of the
determinative factors pointing towards the guilt of the accused. In this
regard reference can be made to the case of Rao Shiv Bahadur v. State
of Vindhya Pradesh, AIR 1954 SC 322 and State of Madras v. A.
Vidyanatha Iyer, AIR 1958 SC 61, the Apex Court relied on the evidence
relating to the conduct of the accused when confronted by the police
officials with the allegation that he had received bribe. In the case of Rao
Shiv Bahadur (supra) the evidence relating to conduct on which reliance
was placed was to the effect that the accused was confused and could
not furnish any explanation when questioned by the officer. Likewise, in
the case of Vidyanatha (supra) also evidence to the effect that the
accused was seen trembling and that he silently produced the notes was
acted upon for recording conviction.
24. From the above discussion, it stands concluded that the Appellant
was rightly held guilty of offence under Section 7 as well as under
Section 13(1)(d) of PC Act and was convicted thereunder by the learned
Special Judge. There is no infirmity and illegality in the impugned judgment.
25. With regard to quantum of sentence, learned defence counsel
prayed for a lenient view stating the case to be above 20 years old and
the Appellant having undergone lot of hardships during trial. The Courts
are daily confronted with such arguments invariably in all cases. In this
regard, the Supreme Court in the case of State of A.P. v V. Vasudeva
Rao, (2004) 9 SCC 319, the Supreme Court observed thus:
“In the present case, how could the mere fact that this was
pending for such a long time be considered as a “special reason”?
That is a general feature in almost all convictions under the Act
and it is not a specialty of this particular case. It is a defect
inherent in implementation of the system that longevity of the
cases tried under the Act is too lengthy. If that is to be regarded
as sufficient for reducing the minimum sentence mandated for
reducing the minimum sentence mandated by Parliament the
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legislative exercise would stand defeated.” (para 31)
26. Keeping in view the entire factual matrix, as discussed above,
while maintaining the conviction of the Appellant under Section 7 and
13(1)(d) read with Section 13(2) of the Act, I am of the view that ends
of justice would be met in sentencing the Appellant to two years rigorous
imprisonment. Thus, to that extent, the impugned order of sentence
dated 22nd July, 2002 of the learned Special Judge is modified in that,
the Appellant shall undergo rigorous imprisonment for a period of two
years each under Section 7 as well as under Section 13(1)(d) read with
Section 13(2) of the Act.
27. With this modification in the impugned order of sentence, the
rest remain maintained. The substantive sentences awarded shall run
concurrently. The period of custody, if any, already undergone by the
Appellant, shall be set off. The Appellant shall surrender and be taken into
custody to undergo the awarded imprisonment. Appeal disposed of
accordingly.
ILR (2011) VI DELHI 652
CS (OS)
SHRI M. K. SHARMA AND ANR. ....PLAINTIFFS
VERSUS
SHRI SH TEK CHAND AND OTHERS ....DEFENDANTS
(J.R. MIDHA, J.)
CS (OS) NO. : 2354/2010 DATE OF DECISION: 15.07.2011
CS (OS) NO. : & 1671/2009
Code of Civil Procedure, 1908—Section 16, 20 and
22—Legal question framed as to whether Delhi court
has territorial jurisdiction to entertain and try a suit
for specific performance relating to a property situated
outside Delhi—On the basis of legal precedents, held
that Delhi Courts have no jurisdiction to entertain and
try a suit for specific performance relating to an
immovable property situated outside Delhi because
the relief cannot be entirely obtained through the
personal obedience of the defendant under the proviso
to Section 16 CPC as the defendant will have to go out
of Delhi to get the sale deed registered—Plaints of
both suits directed to be returned to the plaintiffs.
Findings
6.1 The principles laid down by the Supreme Court in the
cases of Babu Lal (supra) and Harshad Chiman Lal Modi
(supra) and three Division Bench judgments of this Court in
Vipul Infrastructure Developers Ltd. (supra); Pantaloon
Retail India case (supra) and Splendor Landbase Limited
(supra) are summarized as under:-
6.1.1 This Court has no jurisdiction to entertain and try a
suit for specific performance relating to an immovable property
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situated outside Delhi because the relief cannot be entirely
obtained through the personal obedience of the defendant
under the proviso to Section 16 of the Code of Civil
Procedure as the defendant will have to go out of the
jurisdiction of this Court to get the sale deed registered
outside Delhi.
6.1.2 The relief of possession is inherent in the relief of
specific performance under Section 22 of the Specific Relief
Act, 1963 read with Section 55(1) of the Transfer of Property
Act, 1882 and the plaintiffs can seek an amendment to claim
delivery of possession at any stage of the suit.
6.1.3 This Court has no jurisdiction to get the decree of
possession enforced for the property situated outside Delhi.
6.1.4 The proviso to Section 16 cannot be interpreted or
construed to enlarge the scope of the principal provision.
6.2 In CS(OS) No.2354/2010, the defendants are not even
residing within the jurisdiction of this Court.
6.3 For the reasons as aforesaid, the proviso to Section 16
of the Code of Civil Procedure is not applicable to the
present cases. (Para 6)
Important Issue Involved: Delhi Courts have no
jurisdiction to entertain and try a suit for specific performance
relating to an immovable property situated outside Delhi.
[Gi Ka]
APPEARANCES:
FOR THE PLAINTIFFS : Mr. N.S. Dalal, Advocate.
FOR THE DEFENDANTS : None.
CASES REFERRED TO:
1. Splendor Landbase Limited (M/S.) vs. M/s. Mirage Infra
Limited, 2010 V AD (Delhi) 19 (DB).
2. Pantaloon Retail India Ltd. vs. DLF Limited, 2009 (107)
DRJ 228 (DB).
3. Vipul Infrastructure Developers Ltd. and Anr. vs. Rohit
Kochhar, 2008 (102) DRJ 178 (DB).
4. Begum Sabiha Sultan vs. Nawab Mohd. Mansur Ali Khan
and Ors., AIR 2007 SC 1636.
5. Harshad Chiman Lal Modi vs. D.L.F. Universal Ltd.,
AIR 2006 SC 464.
6. Adcon Electronics Pvt. Ltd. vs. Daulat and Anr., AIR
2001 SC 3712.
7. Ewing vs. Ewing, (1883) 9 AC 34 : 53 LJ Ch 435.
8. Babu Lal vs. Hazari Lal Kishori Lal and Ors., [1982] 3
SCR 94.
9. Debendra Nath Chowdhury vs. Southern Bank Ltd., AIR
1960 Cal. 626.
10. Subodh Kumar Banerjee vs. Hiramoni Dasi and Ors.,
AIR 1955 Cal. 267.
RESULT: Plaints returned.
J.R. MIDHA, J.
1. The following common legal question arises for consideration in
CS (OS)Nos.2354/2010 and 1671/2009:-
‘‘Whether this Court has territorial jurisdiction to entertain and
try a suit for specific performance relating to a property situated
outside Delhi?
2. Facts in CS (OS)No.2354/2010
2.1 The plaintiffs are seeking specific performance of agreements
to sell, receipts and MOU dated 24th February, 2009 relating to the
property ad-measuring 511 sq. yrds. bearing No.541, comprised in Khasra
No.798, Old Abadi, Village Harola Makanpur, Sector-5, Noida, Gautam
Budh Nagar, U.P. 200301.
2.2 The agreements to sell, receipts and MOU dated 24th February,
2009 were executed at Delhi.
Indian Law Reports (Delhi) ILR (2011) VI Delhi655 656M. K. Sharma v. SH Tek Chand (J.R. Midha, J.)
2.3 The defendants are residents of Noida, Gautam Budh Nagar,
U.P.
2.4 The plaintiffs have, in para 22 of the plaint averred that this
Court has jurisdiction to entertain and try this suit as the agreements to
sell were executed at Delhi and the payments were also made to the
defendants at Delhi.
2.5 On 23rd May, 2011, the plaintiffs gave up prayer (b) relating
to the possession of the suit property. The plaintiffs are now seeking
specific performance, injunction and damages relating to the suit property.
3. Facts in CS(OS)No.1671/2009
3.1 The plaintiff is seeking specific performance of agreement to
sell dated 12th May, 2005 relating to the property bearing No.B-46,
Sector 5, Noida.
3.2 The agreement to sell dated 12th May, 2005 was executed at
Noida.
3.3 The defendants are the resident of Delhi.
3.4 The plaintiff initially instituted a suit for specific performance
before the Civil Judge (Senior Division), Gautam Budh Nagar being original
Suit No.1029/2007 which was withdrawn on 11th August, 2008 with
liberty to institute a fresh suit. The plaintiff thereafter instituted this suit.
4. Relevant Provisions of Law
4.1 Section 16 of the Code of Civil Procedure, 1908. Suits to
be instituted where subject-matter situate.- Subject to the pecuniary
or other limitations prescribed by any law, suits-
(a) for the recovery of immovable property with or without rent
or profits,
(b) for the partition of immovable property,
(c) for foreclosure, sale or redemption in the case of a mortgage
of or charge upon immovable property,
(d) for the determination of any other right to or interest in
immovable property,
(e) for compensation for wrong to immovable property,
(f) for the recovery of movable property actually under distraint
or attachment, shall be instituted in the Court within the local
limits of whose jurisdiction the property is situate :
Provided that a suit to obtain relief respecting, or compensation
for wrong to, immovable property held by or on behalf of the
defendant, may where the relief sought can be entirely obtained
through his personal obedience be instituted either in the Court
within the local limits of whose jurisdiction the property is situate,
or in the Court within the local limits of whose jurisdiction the
defendant actually and voluntarily resides, or carries on business,
or personally works for gain.
4.2 Section 20 of the Code of Civil Procedure, 1908. Other
suits to be instituted where defendants reside or cause of action
arises.- Subject to the limitations aforesaid, every suit shall be instituted
in Court within the local limits of whose jurisdiction-
(a) the defendant, or each of the defendants where there are
more than one, at the time of the commencement of the suit,
actually and voluntarily resides, or carries on business, or
personally works for gain; or
(b) any of the defendants, where there are more than one, at the
time of the commencement of the suit actually and voluntarily
resides, or carries on business, or personally works for gain,
provided that in such case either the leave of the Court is given,
or the defendants who do not reside, or carry on business, or
personally work for gain, as aforesaid, acquiesce in such
institution; or
(c) the cause of action, wholly or in part, arises.
4.3 Section 22 of the Specific Relief Act, 1963. Power to grant
relief for possession, partition, refund of earnest money, etc.-
(1) Notwithstanding anything to the contrary contained in the
Code of Civil Procedure, 1908 (5 of 1908 ), any person suing
for the specific performance of a contract for the transfer of
immovable property may, in an appropriate case, ask for-
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(a) possession, or partition and separate possession, of the
property, in addition to such performance; or
(b) any other relief to which he may be entitled, including the
refund of any earnest money or deposit paid or 1[ made by] him,
in case his claim for specific performance is refused.
(2) No relief under clause (a) or clause (b) of sub- section (1)
shall be granted by the court unless it has been specifically
claimed: Provided that where the plaintiff has not claimed any
such relief in the plaint, the court shall, at any stage of the
proceeding, allow him to amend the plaint on such terms as may
be just for including a claim for such relief.
(3) The power of the court to grant relief under clause (b) of
sub- section (1) shall be without prejudice to its powers to
award compensation under section 21.
4.4. Section 55(1) of the Transfer of Property Act, 1882. Rights
and liabilities of buyer and seller.- In the absence of a contract to the
contrary, the buyer and the seller of immoveable property respectively
are subject to the liabilities, and have the rights, mentioned in the rules
next following, or such of them as are applicable to the property sold:
(1) The seller is bound—
(a) to disclose to the buyer any material defect in the property
2[ or in the seller’ s title thereto] of which the seller is, and the
buyer is not, aware, and which the buyer could not with ordinary
care discover;
(b) to produce to the buyer on his request for examination all
documents of title relating to the property which are in the
seller’ s possession or power;
(c) to answer to the best of his information all relevant questions
put to him by the buyer in respect to the property or the title
thereto;
(d) on payment or tender of the amount due in respect of the
price, to execute a proper conveyance of the property when the
buyer tenders it to him for execution at a proper time and place;
(e) between the date of the contract of sale and the delivery of
the property, to take as much care of the property and all
documents of title relating thereto which are in his possession as
an owner of ordinary prudence would take of such property and
documents;
(f) to give, on being so required, the buyer, or such person as
he directs, such possession of the property as its nature admits;
(g) to pay all public charges and rent accrued due in respect of
the property up to the date of the sale, the interest on all
incumbrances on such property due on such date, and, except
where the property is sold subject to incumbrances, to discharge
all incumbrances on the property then existing.
5. Relevant judgments
5.1 Harshad Chiman Lal Modi v. D.L.F. Universal Ltd., AIR
2006 SC 464
A suit for specific performance relating to a property in Gurgaon
was filed in this Court on the ground that the defendants had their Head
Office in Delhi, the agreement was entered into at Delhi and partial
payments were also made at Delhi. The Supreme Court held that Delhi
Court does not have jurisdiction to entertain and try the suit as the
property was situated outside the jurisdiction of this Court. The relevant
findings of the Supreme Court are as under:-
‘‘14. Section 16 thus recognizes a well established principle that
actions against res or property should be brought in the forum
where such res is situate. A court within whose territorial
jurisdiction the property is not situate has no power to deal with
and decide the rights or interests in such property. In other
words, a court has no jurisdiction over a dispute in which it
cannot give an effective judgment. Proviso to Section 16, no
doubt, states that though the court cannot, in case of immovable
property situate beyond jurisdiction, grant a relief in rem still it
can entertain a suit where relief sought can be obtained through
the personal obedience of the defendant. The proviso is based on
well known maxim “equity acts in personam’’, recognized by
the Chancery Courts in England. The Equity Courts had
Indian Law Reports (Delhi) ILR (2011) VI Delhi659 660M. K. Sharma v. SH Tek Chand (J.R. Midha, J.)
jurisdiction to entertain suits respecting immovable properties
situated abroad through personal obedience of the defendant.
The principle on which the maxim was based was that courts
could grant reliefs in suits respecting immovable property situate
abroad by enforcing their judgments by process in personam,
i.e. by arrest of defendant or by attachment of his property.
15. In Ewing v. Ewing, (1883) 9 AC 34 : 53 LJ Ch 435, Lord
Selborne observed:
‘‘The Courts of Equity in England are, and always have
been, courts of conscience operating in personam and not
in rem; and in the exercise of this personal jurisdiction
they have always been accustomed to compel the
performance of contracts in trusts as to subjects which
were not either locally or ratione domicilli within their
jurisdiction. They have done so, as to land, in Scotland,
in Ireland, in the Colonies, in foreign countries.’’
16. The proviso is thus an exception to the main part of the
section which in our considered opinion, cannot be interpreted
or construed to enlarge the scope of the principal provision. It
would apply only if the suit falls within one of the categories
specified in the main part of the section and the relief sought
could entirely be obtained by personal obedience of the defendant.
17. In the instant case, the proviso has no application. The relief
sought by the plaintiff is for specific performance of agreement
respecting immovable property by directing the defendant No. 1
to execute the sale deed in favour of the plaintiff and to deliver
possession to him. The trial court was, therefore, right in holding
that the suit was covered by Clause (d) of Section 16 of the
Code and the proviso had no application.
18. In our opinion, the submission of the learned Counsel for the
appellant that the parties had agreed that Delhi Court alone had
jurisdiction in the matters arising out of the transaction has also
no force. Such a provision, in our opinion, would apply to those
cases where two or more courts have jurisdiction to entertain a
suit and the parties have agreed to submit to the jurisdiction of
one court.’’ (Emphasis supplied)
5.2 Vipul Infrastructure Developers Ltd. and Anr. v. Rohit
Kochhar, 2008 (102) DRJ 178 (DB)
A suit for specific performance relating to a property in Gurgaon
was filed in Delhi on the ground that the agreement was executed at
Delhi and the defendants also carried on business at Delhi. The learned
Single Judge held the suit to be maintainable on the ground that only a
declaration of right and title in the property was sought and not the
delivery of possession. The Division Bench overruled this judgment holding
that Delhi Court had no jurisdiction to entertain and try the suit. The
Division Bench was of the opinion that even when no prayer for declaration
or delivery of possession of the suit was made, the relief of possession
was inherent in the relief of specific performance. The Division Bench
further held that the execution and registration of the sale deed would
take place at Gurgaon for which the direction will have to be given to
the defendant to move out of Delhi to Gurgaon for registration of sale
deed and, therefore, the case would not fall within the purview of the
proviso to Section 16. This Court held as under:-
‘‘12. Section 22 of the Specific Relief Act, on the other hand,
provides that any person suing for specific performance of a
contract for transfer of immovable property may, in an appropriate
case sue, for possession, or partition and separate possession, of
the property, in addition to such performance. It is further provided
in the said provision that no relief under the said provision shall
be granted by the court unless it has been specifically claimed,
provided that where the plaintiff has not claimed any such relief
in the plaint, the court shall, at any stage of the proceeding,
allow him to amend the plaint on such terms as may be just for
including a claim for such relief.
13. The aforesaid provisions of Section 22 of the Specific Relief
Act came to be considered by the Supreme Court in the decision
of Babu Lal (supra). In the said decision it was held by the
Supreme Court that Section 22 of the Specific Relief Act provides
that a person in a suit for specific performance of a contract for
the transfer of immovable property, may ask for appropriate
relief, namely, he may ask for possession, or for partition, or for
separate possession including the relief for specific performance.
The Supreme Court also took note of Sub-section (2) of this
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section which specifically provides that these reliefs cannot be
granted by the Court, unless they have been expressly claimed
by the plaintiff in the suit. The Supreme Court further went on
to hold that the proviso to Sub-section (2), however, says that
where the plaintiff has not specifically claimed these reliefs in his
plaint at the initial stage of the suit, the court shall permit the
plaintiff, at any stage of the proceedings, to include one or more
of the reliefs mentioned above by means of an amendment of the
plaint on such terms as it may deem proper. The Supreme Court
examined the object and purpose of enacting the aforesaid
provision and thereafter held that the said provision has been
enacted to avoid multiplicity of suits and that the plaintiff may
get appropriate relief without being hampered by procedural
complications. In the said decision the Supreme Court also took
note of the expression “in appropriate cases” as appearing in
Section 22(1) which was found to be most significant. While
interpreting the said provision it was held by the Supreme Court
that the said expression only indicates that it is not always
incumbent on the plaintiff to claim possession or partition or
separate possession in a suit for specific performance of a contract
for the transfer of the immovable property. That has to be done
where the circumstances demanding the relief for specific
performance of the contract of sale embraced within its ambit
not only the execution of the sale deed but also possession over
the property conveyed under the sale deed. The aforesaid
proposition laid down by the Supreme Court was further
explained holding that it may not always be necessary for
the plaintiff to specifically claim possession over the property,
the relief of possession being inherent in the relief for
specific performance of the contract of sale. The Supreme
Court went on to hold that in a case where exclusive possession
is with the contracting party, a decree for specific performance
of the contract of sale simplicities without specifically providing
for delivery of possession, may give complete relief to the decree-
holder. In order to satisfy the decree against him completely the
judgment debtor is bound not only to execute the sale-deed but
also to put the property in possession of the decree-holder. This
is also in consonance with the provisions of Section 55(1) of the
Transfer of Property Act, 1882 which provides that the seller is
bound to give, on being so required, to the buyer or such person
as he directs, such possession of the property as its nature
admits.’’
‘‘18. In the present case, it is an admitted position that the
appellant had entered into the aforesaid alleged contract at its
Corporate office at Delhi. It is the specific stand of the appellant
that they were initially residents of Delhi and that they had moved
to Gurgaon and their corporate office is now also located at
Gurgaon. It is the contention of the counsel appearing for the
respondents that the proviso to Section 16 of Code of Civil
Procedure is applicable which is sought to be invoked, for, the
relief which is sought for could be entirely enforced through the
personal obedience of the defendants in Delhi. There is however
not only a prayer in the plaint for declaration of the right and
title, but also to transfer the right, title and interest in the suit
premises situate at Gurgaon. As, in our opinion, the suit can
be decreed in favour of the plaintiff only when the Court
can get the sale deed executed and registered in favour of
the plaintiff which would confer the title of the suit premises
on the plaintiff, and the execution and the registration of
the sale document would have to take place at Gurgaon
and, for this the Court will also have to pass a decree
directing the defendant to get the sale deed executed and
registered at Gurgaon, implication of the same will be that
a direction will have to be given to the defendant that he
shall have to move out of Delhi and go to Gurgaon and get
the same registered. No sale deed is sought to be registered
at Delhi and, therefore, in our considered opinion such a
relief cannot be entirely obtained through the personal
obedience of the defendant, who in this case has to go to the
jurisdiction of another court to get the decree executed and
the sale deed registered.
19. Accordingly, we are of the considered opinion that the
submissions of the learned Counsel for the respondent and the
findings recorded by the learned Single Judge that the present
case is covered by the proviso of Section 16 of the Code of Civil
Indian Law Reports (Delhi) ILR (2011) VI Delhi663 664M. K. Sharma v. SH Tek Chand (J.R. Midha, J.)
Procedure are misplaced. In the facts and circumstances of
the case as delineated, the relief in the present suit cannot
be entirely obtained through the personal obedience of the
defendants. The proviso to Section 16 of the Code of Civil
Procedure would be applicable to a case where the relief
sought for by the plaintiff was entirely obtainable through
the personal obedience of the defendant, i.e., the defendant
has not at all to go out of the jurisdiction of the Court for
the aforesaid purpose. The present case is not a case of the
aforesaid nature. In the present case for execution of the
sale deed the defendants will have to go out of the jurisdiction
of this Court and get the same executed and registered in
Gurgaon.
20. In the present case also it is an admitted position that
possession of the said property was with the seller and, therefore,
in terms of the provisions of Section 55(1) of the Transfer of
Property Act, 1882, the relief of possession is inherent in the
relief of specific performance of the contract. In our considered
opinion the ratio of the decision of the Supreme Court in Babu
Lal (supra) and the principles laid down in the case of Harshad
Chiman Lal Modi(supra) are applicable to the facts of the present
case. In Harshad Chiman Lal Modi (supra) it was found that
in addition to passing decree, the court was also required to
deliver possession of the property. It was held that such a relief
can be granted only by sending the concerned person responsible
for delivery of possession to Gurgaon and the court at Delhi
does not have the jurisdiction to get the aforesaid decree enforced
for the property situate outside territorial jurisdiction of Delhi
High Court. The Court while referring to the provisions of Section
16 of the CPC held that the location of institution of a suit would
be guided by the location of the property in respect of which and
for determination of any right or interest whereof the suit is
instituted. The proviso to Section 16 CPC is also not applicable
to the case, as the relief sought for cannot be entirely granted
or obtained through the personal obedience of the respondent.
21. The decision of the Supreme Court in the case of Adcon
Electronics Pvt. Ltd. v. Daulat and Anr., AIR 2001 SC 3712,
relied upon by the respondents, would also not be applicable to
the facts of the present case. The said decision was rendered in
the context of the expression “suit for land”. The Supreme Court
in the said decision held that suit for specific performance of an
agreement for sale of the suit property, without a claim for
delivery of possession, cannot be treated as a “suit for land” and
is, Therefore, triable under Clause 12 if the other conditions
there under are fulfilled. The facts of the said case are,
therefore, distinguishable and are not applicable to the case
in hand. The said decision was rendered due to specific
provision therein and it is also apparent from the fact that
the case of Babu Lal(supra) was not even referred to in that
case.
22. Another decision of the Supreme Court which needs reference
at this stage is the case of Begum Sabiha Sultan v. Nawab
Mohd. Mansur Ali Khan and Ors., AIR 2007 SC 1636. In para
12 of the said judgment it was held by the Supreme Court that
reading the plaint as a whole in this case, there cannot be much
doubt that the suit is essentially in relation to the relief of partition
and declaration in respect of the properties situate in Village
Pataudi, Gurgaon, outside the jurisdiction of court at Delhi. In
that view of the matter it was also held that the Delhi Court will
have no jurisdiction to try and decide the aforesaid suit. It was
also held in the said decision by following the decision of Harshad
Chiman Lal Modi(supra) that the relief of partition, accounting
and declaration of invalidity of the sale executed in respect of
immovable property situate in Village Pataudi, Gurgaon, could
not entirely be obtained by personal obedience to the decree by
the defendants in the suit. It was further held that applying the
test laid down therein, it is clear that the present suit could not
be brought within the purview of the proviso to Section 16 of
the Code or entertained relying on Section 20 of the Code on the
basis that three out of the five defendants are residing within the
jurisdiction of the court at Delhi.’’ (Emphasis supplied)
5.3 Pantaloon Retail India Ltd. v. DLF Limited, 2009 (107)
DRJ 228 (DB)
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A suit for mandatory injunction relating to a property in Gurgaon
was filed in this Court. The Division Bench of this Court following the
judgments of the Supreme Court in Babu Lal Vs. Hazari Lal Kishori
Lal & Ors. 1982 (3) SCR 94 and Harshad Chiman Lal Modi (supra),
held that this Court had no jurisdiction to entertain and try the suit. The
relevant portion of the said judgment is reproduced hereunder:-
‘‘7. It is clear from a plain reading of Section 16 that in any suit
where the relief claimed is of the nature described in Clauses (a)
to (f), such a suit in respect of immovable property is to be
instituted in the Court within the local limits of whose jurisdiction
the property is situate. In the present case, immovable property
is located in Gurgaon, Haryana, which is outside the local limits
of Delhi. Clause (a) deals with recovery of immovable property
and Clause (d) is about those suits where determination of any
other right to or interest the property is called for. We are not
concerned with other clauses in the present case. On the other
hand, proviso to Section 16 lays down certain circumstances in
which suit can be instituted even within the local limits of whose
jurisdiction the defendant actually and voluntarily resides or carries
on business or personally works for gain. Thus, normally a suit
in respect of immovable property is to be filed where the subject-
matter, i.e., the immovable property is situate. However, in the
proviso an exception is laid down by providing that relief respecting
or compensation for wrong to, immovable property can be
obtained through the personal obedience of the defendant, the
suit can also be instituted where the defendant resides etc. If the
proviso is applicable, the principles stipulated in Section 20 of
the Code would determine the territorial jurisdiction. In any case,
in so far as the Court within local limits of whose jurisdiction the
property is situate shall always have the jurisdiction even when
case is covered by the proviso.
8. The question, therefore, is as to whether present case is
covered by clause (a) or (d) of Section 16 of the Code on the
one hand or proviso thereof is applicable and therefore, provisions
of Section 20 of the Code can also be invoked.
9. To find answer to this question, we refer to certain precedents
of the Apex Court as well as this Court. First case which needs
mention is the judgment of the Supreme Court in Adcon
Electronics Pvt. Ltd. v. Daulat and Anr., AIR 2001 SC 3712.
In that case, vide agreement dated 12.7.1986 immovable property
situate in Indore, MP, was agreed to be sold by the defendant
to the plaintiffs. Suit for specific performance was filed in the
High Court of Judicature at Bombay (now Mumbai) praying,
inter alia, for a declaration that agreement dated 12.7.1986 and
Memorandum of Understanding dated 1.8.1987 was still subsisting
and binding on the defendant and a decree for specific performance
of the said agreement and the memorandum was sought. The
defendant took objection to the maintainability of that suit in
Mumbai on the ground that immovable property was situate in
Indore, MP. This plea was not accepted by either the Single
Judge or the Division Bench of the Bombay High Court. It is in
these circumstances the appeal came to be filed against the
judgment of the Bombay High Court, before the Supreme Court,
by the defendant. The Supreme Court held that a suit for specific
performance simplicitor, in the absence of an explicit prayer for
delivery of possession of the suit property, would not be treated
as a ‘‘suit for land.’’ After taking note of certain judgments of
the High Courts as well as that of Federal Court, the Supreme
Court summed up the legal position, with approval, in the
following words:-
‘‘14. In Debendra Nath Chowdhury v. Southern Bank
Ltd., AIR 1960 Cal. 626, a Division Bench of the Calcutta
High Court took the view that the suit for specific
performance of the contract to execute and register a
lease with alternative claims for damages is not a ‘‘suit
for land’’ within the meaning of Clause 12 of the Letters
Patent.
15. From the above discussion it follows that a ‘‘suit for
land’’ is a suit in which the relief claimed relates to title
to or delivery of possession of land or immovable property.
Whether a suit is a ‘‘suit for land’’ or not has to be
determined on the averments in the plaint with reference
to the reliefs claimed therein; where the relief relates to
adjudication of title to land or immovable property or
Indian Law Reports (Delhi) ILR (2011) VI Delhi667 668M. K. Sharma v. SH Tek Chand (J.R. Midha, J.)
delivery of possession of the land or immovable property,
it will be a ‘‘suit for land’’. We are in respectful agreement
with the view expressed by Mahajan, J. in Moolji Jaitha
case (supra).’’
10. The Court further observed that though in a suit for specific
performance of contract for sale of immovable property containing
a stipulation that on execution of the sale deed the possession of
the immovable property will be handed over to the purchaser and
because of that it is implied that delivery of possession of
immovable property is a part of the decree of specific performance
of the contract but having regard to the provisions of Section 22
of the Specific Relief Act, unless relief for possession is
specifically asked for, no court can grant that relief. Discussion
on this aspect is contained in para 17 of the judgment, which is
reproduced below:
‘‘17. It may be seen that Sub-section (1) is an enabling
provision. A plaintiff in a suit for specific performance
may ask for further reliefs mentioned in Clauses (a) and
(b) thereof. Clause (a) contains reliefs of possession and
partition and separate possession of the property, in addition
to specific performance. The mandate of Sub-section (2)
of Section 22 is that no relief under Clause (a) and (b) of
Sub-section (1) shall be granted by the court unless it has
been specifically claimed. Thus it follows that no court
can grant the relief or possession of land or other
immovable property, subject-matter of the agreement for
sale in regard to which specific performance is claimed,
unless the possession of the immovable property is
specifically prayed for.’’
11. On this basis, the Court held that as in the case before it
relief for possession was not specifically claimed, suit for specific
performance was not to be treated as ‘‘suit for land’’ and
therefore, Bombay High Court had the jurisdiction to entertain
the suit on the basis of ‘‘cause of action’’. Thus, the Court, in
essence, held that where the suit filed is one for specific
performance only without claim relief for possession, provision
like Section 16 will have no application and the principle contained
in Section 20 of the Code would be attracted for the purpose of
determination of the territorial jurisdiction of a court.
12. We may point out at this stage itself that earlier
judgment of the Supreme Court in the case of Babu Lal v.
Hazari Lal Kishori Lal and Ors., [1982] 3 SCR 94 was not
taken note of by the Supreme Court. In that case, the
decree for specific performance simplicitor was passed by
the Court. In the execution of the said decree, the decree holder
wanted possession as well. In view of Section 22 of the Specific
Relief Act, 1963 question arose before the Court as to whether
decree for possession had to be specifically sought for. Referring
to the provisions of Section 22 of the Specific Relief Act the
contention of the judgment debtor was that as the plaintiffs had
not claimed any relief for possession in the suit, they were
precluded from claiming that relief at a subsequent stage. This
contention of the judgment debtor was not accepted holding
that Section 22 was an enabling provision. The legislative
history behind enacting Section 22, Specific Relief Act, 1963,
was noted and the Court opined that even if such a relief
was not claimed at the initial stage of the suit, the Court
could permit the plaintiff to include this relief at the
subsequent stage. We may extract the following discussion in
this behalf from the said judgment:-
‘‘Section 22 enacts a rule of pleading. The Legislature
thought it will be useful to introduce a rule that in order
to avoid multiplicity of proceedings the plaintiff may claim
a decree for possession in a suit for specific performance,
even though strictly speaking, right to possession accrues
only when suit for specific performance is decreed. The
Legislature has now made a statutory provision enabling
the plaintiff to ask for possession in the suit for specific
performance and empowering the court to provide the
decree itself that upon payment by the plaintiff of the
consideration money within the given time, the defendant
should execute the deed and put the plaintiff in possession.
The section enacts that a person in a suit for specific
performance of a contract for the transfer of immovable
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property, may ask for appropriate reliefs, namely, he may
ask for possession, or for partition, or for separate
possession including the relief for specific performance.
These reliefs he can claim, notwithstanding anything
contained in the Code of Civil Procedure 1908, to the
contrary. Sub-section (2) of this section, however,
specifically provides that these reliefs cannot be granted
by the Court, unless they have been expressly claimed by
the plaintiff in the suit. Sub-section (2) of the section
recognized in clear terms the well-established rule of
procedure that the court should not entertain a claim of
the plaintiff unless it has been specifically pleaded by the
plaintiff and proved by him to be legally entitled to. The
proviso to this Sub-section (2), however, says that where
the plaintiff has not specifically claimed these reliefs in his
plaint, in the initial stage of the suit, the court shall permit
the plaintiff at any stage of the proceedings, to include
one or more of the reliefs, mentioned above by means of
an amendment of the plaint on such terms as it may deem
proper. The only purpose of this newly enacted provision
is to avoid multiplicity of suits and that the plaintiff may
get appropriate relief without being hampered by procedural
complications.’’
13. In first blush, one gets an impression that the judgment of
the Supreme Court in Adcon Electronics (supra) is in conflict
with Babu Lal (supra) in so far as the interpretation of Section
22 of the Specific Relief Act is concerned. Dr. Singhvi, learned
senior advocate appearing for the appellant (plaintiff), however,
made an endeavour to demonstrate that there was no such
contradiction and the two cases could be reconciled. His
submission was that though it was necessary to make a prayer
for decree of possession to claim that relief as held in Adcon
Electronics (supra), at the same time it was only an ‘‘enabling’’
provision and therefore, even if this relief is not claimed at the
initial stage, amendment at subsequent stage to include this relief
was permissible. Though this argument is contentious, we refrain
from expressing a final view since this aspect does not arise for
consideration. However, we would refer to the judgment in Babu
Lal (supra) for other purpose at the appropriate stage.’’
5.4 Splendor Landbase Limited (M/S.) v. M/s. Mirage Infra
Limited, 2010 V AD (Delhi) 19 (DB)
A suit for declaration and permanent injunction relating to a property
situated at Chandigarh was filed at Delhi on the ground that the agreement
was executed at New Delhi and payments were also made at New Delhi.
The Division Bench of this Court following the judgments of the Supreme
Court in Harshad Chiman Lal Modi (supra) and of Division Bench of
this Court in Vipul Infrastructure Developers Ltd. (supra) and
Pantaloon Retails India Ltd. (supra) held that this Court had no
jurisdiction to entertain and try the suit. The relevant findings of this
Court are as under:-
‘‘25. Having considered the decisions referred by the parties
and on a plain reading of the plaint as a whole, it is clear
as we have indicated above that the present suit is one
which comes within the purview of Section 16(d) of the CPC
and the proviso of Section 16 of CPC is not applicable under
the circumstances as the proviso of Section 16 of CPC is an
exception to the main part of the Section which cannot be
construed to enlarge the scope of the main provision. If the
suit comes within Section 16(d) of the CPC, it has been held by
the Apex Court in Harshad Chiman Lal Modi’s case (supra)
that Section 20 of the Code would have no application in view
of the opening words of Section 20 “subject to limitations
aforesaid”. The Apex Court has held that the proviso to Section
16 would apply only if the relief sought could entirely be obtained
by personal obedience of the defendant. The proviso we feel will
only apply if the suit falls within one of the categories specified
in the main part of the Section. In the present case, although
specifically the relief for possession of the property has not
been claimed by the Appellant in the prayer for the purpose
of development, however, it is settled law that by clever
drafting a party cannot be permitted to come within different
meaning of relief claimed. Hence, no benefit can be derived
by the Appellant either from the proviso of Section 16 or
Section 20 of the Code of Civil Procedure.’’
Indian Law Reports (Delhi) ILR (2011) VI Delhi671 672M. K. Sharma v. SH Tek Chand (J.R. Midha, J.)
(Emphasis supplied)
5.5 Adcon Electronics Pvt. Ltd. v. Daulat and Anr., AIR 2001
SC 3712
A suit for specific performance relating to a property at Indore was
instituted at Mumbai. The Supreme Court held the suit to be maintainable
on the ground that the suit for specific performance simplicitor in the
absence of an explicit prayer for delivery of possession of the suit
property would not be treated as a suit for land. However, the earlier
judgment of Babu Lal (supra) was not taken note of in Adcon’s case.
In Babu Lal’s case, the Supreme Court held that the relief of possession
is inherent in the relief of specific performance under Section 22 of the
Specific Relief Act, 1963 read with Section 55(1) of the Transfer of
Property Act, 1882 and the plaintiffs can seek an amendment to claim
delivery of possession at any stage of the suit. Adcon’s case was
distinguished by the Division Bench of this Court in the case of Vipul
Infrastructure Developers Ltd. (supra) and Pantaloon Retail India
case (supra). The findings of the Division Bench of this Court in Vipul
Infrastructure Ltd. (supra) are reproduced hereunder:-
‘‘16. In Babu Lal’s case (supra) it was also held that in
satisfaction of a decree for specific performance of a contract
for sale, the handing over of the possession of the property
is incidental. Thus the judgment debtor has to not only to
execute the sale deed, but also to deliver the property to decree
holder. Further reference was also made in the said case to a
Division Bench decision of the Calcutta High Court in a case
titled as Subodh Kumar Banerjee v. Hiramoni Dasi and Ors.,
AIR 1955 Cal. 267, wherein it was held that in view of Clause
(1) of Section 55 unless there is a contract to the contrary,
giving delivery of the possession to the buyer by the seller is an
incident of a contract for sale, and that right springs out of the
contract which is being specifically enforced and as a net result
of the execution and completion of conveyance. The aforesaid
provision has to be read harmoniously with the provisions of
Section 22 of the Specific Relief Act. The decisions which are
referred to in this judgment and relied upon by the counsel
appearing for the parties at different stages also throw light on
the aforesaid aspect. It is established from the ratio of the
aforesaid decisions that it could be possible by filing a suit
not only to seek a declaration of the right and title and to
enforce an agreement to sell, but an amendment thereto
could also be obtained seeking for decree of delivery of
possession at any stage of the suit, even at the execution
stage.’’
6. Findings
6.1 The principles laid down by the Supreme Court in the cases of
Babu Lal (supra) and Harshad Chiman Lal Modi (supra) and three
Division Bench judgments of this Court in Vipul Infrastructure
Developers Ltd. (supra); Pantaloon Retail India case (supra) and
Splendor Landbase Limited (supra) are summarized as under:-
6.1.1 This Court has no jurisdiction to entertain and try a suit for
specific performance relating to an immovable property situated outside
Delhi because the relief cannot be entirely obtained through the personal
obedience of the defendant under the proviso to Section 16 of the Code
of Civil Procedure as the defendant will have to go out of the jurisdiction
of this Court to get the sale deed registered outside Delhi.
6.1.2 The relief of possession is inherent in the relief of specific
performance under Section 22 of the Specific Relief Act, 1963 read with
Section 55(1) of the Transfer of Property Act, 1882 and the plaintiffs
can seek an amendment to claim delivery of possession at any stage of
the suit.
6.1.3 This Court has no jurisdiction to get the decree of possession
enforced for the property situated outside Delhi.
6.1.4 The proviso to Section 16 cannot be interpreted or construed
to enlarge the scope of the principal provision.
6.2 In CS(OS) No.2354/2010, the defendants are not even residing
within the jurisdiction of this Court.
6.3 For the reasons as aforesaid, the proviso to Section 16 of the
Code of Civil Procedure is not applicable to the present cases.
7. Conclusion
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673 674 Anita Devi v. United India Assurance Co. Ltd. (Indermeet Kaur, J.)
In the facts and circumstances of this case and following the
judgments of the Supreme Court in Babu Lal (supra) and Harshad
Chaman Lal Modi (supra) and three judgments of Division Bench of
this Court in Vipul Infrastructure Developers Ltd. (supra), Pantaloon
Retail India Ltd. (supra) and Splendor Landbase Limited (supra), it
is held that this Court has no territorial jurisdiction to entertain and try
the suits for specific performance relating to the properties situated outside
Delhi (Noida, Gautam Budh Nagar, U.P. in CS(OS) No.2354/2010 and
Noida in CS(OS) No.1671/2009). Consequently, both the suits are returned
to the plaintiffs under Order VII Rule 10 of the Code of Civil Procedure
for being presented to the proper Court.
ILR (2011) VI DELHI 673
MAC APPEAL
ANITA DEVI & OTHERS ....APPELLANTS
VERSUS
UNITED INDIA ASSURANCE ....RESPONDENTS
CO. LTD. & ORS.
(INDERMEET KAUR, J.)
MAC APPEAL NO. : 653/2010, DATE OF DECISION: 15.07.2011
654/2010 & 655/2010
Motor Vehicles Act, 1988—Section 166—Three
deceased, post retirement from Indian Navy, employed
with private company on different posts, travelling
together in a Maruti Wagon R when car collided with
Tata Truck—Tribunal awarded compensation in favour
of claimants of three deceased—Contention of
appellants that amount awarded under head of “Loss
of Dependency” inadequate—Held, future prospects
had wrongly not been considered—Tribunal wrongly
did not take allowances into consideration but only
annual salary after deducting 10% as income tax—All
three deceased below the age of 50 years, were
mechanical engineers, specially qualified professional
persons working in the field of their specialized
capacity in permanent posts with promotion prospects;
thus future prospects should have been taken into
account—Appellants entitled for “future prospects”
which would be double of the amount of salary after
deduction of tax—Award modified with regard to “Loss
of Dependency”—Appeal allowed.
Important Issue Involved: Future prospects for calculation
of the amount under head of “loss of dependency” would
have to been considered where deceased is below the age
of 50 years, specially qualified professional and working in
the field of his specialized capacity in a permanent post with
promotion prospects.
[Ad Ch]
APPEARANCES:
FOR THE APPELLANTS : Mr. Hameed S. Shaikh, Advocate.
FOR THE RESPONDENT : Mr. K.L. Nandwani, Advocate for
Respondent no.1.
CASES REFERRED TO:
1. National Insurance Co. Ltd. vs. Renu Devi 2009 ACJ
1921 (Delhi).
2. Kanwar Devi vs. Bansal Roadways, 2008 ACJ 2182
(Delhi).
3. Lekhraj vs. Suram Singh 2007 ACJ 2165 (Delhi).
4. Bijoy Kumar Dugar vs. Bidyadhar Dutta & Others AIR
2006 SC 1255.
RESULT: Appeal allowed.
Indian Law Reports (Delhi) ILR (2011) VI Delhi Anita Devi v. United India Assurance Co. Ltd. (Indermeet Kaur, J.) 675 676
INDERMEET KAUR, J. (Oral)
1. These are three appeals preferred by the legal heirs of deceased
Pawan Kumar, Jitender Singh & Dev Karan. Their claim petition had
been decided by a common judgment and vide Award dated 18.05.2010
compensation had been awarded in favour of the claimants. There is no
dispute on the quantum granted under the head of non-pecuniary damages.
The only dispute is with regard to the amounts awarded under the head
of loss of dependency.
2. All the three deceased after their retirement from the Indian Navy
had been employed with M/s DEC Property Management Pvt. Ltd. on
different posts. On 08.11.2008 they were travelling together in a Maruti
Wagon (R) when their car collided with a Tata truck which was being
driven in a fast and negligent manner; as a result of this collision the
motor cycle in front of the offending vehicle being driven by one Sunny
Singh was hit; Sunny Singh sustained injuries; Pawan Kumar, Jitender
Singh & Dev Karan all died on the spot.
3. Four claim petitions had been preferred under Section 166 of the
Motor Vehicle Act (hereinafter referred to as the ‘MV Act’); three by
legal heirs/claimants of the deceased and the fourth claim petition had
been preferred by the injured Sunny Singh himself.
4. Fact as further emanating from the record are that Pawan Kumar
was working as a Engineer; he was 33 years of age on the date of the
accident; Jitender Singh was working as a Sr. Engineer; he was 35 years
of age on the date of the accident; Dev Karan was working as a Supervisor;
he was 49 years of age on the date of the accident;. Because of the
untimely death of the aforenoted three persons, future prospects which
had not been considered by the Tribunal have been claimed in these
appeals. The claimants of all the three deceased persons have sought an
enhancement of their compensation.
5. Record shows that oral and documentary evidence had been led.
To decide this controversy i.e. as to whether the legal heirs of the
claimants were entitled to future prospects, testimony of PW-5 is relevant.
PW-5 was P.S. Bhandari, Manager of M/s DEC Property Management
Pvt. Ltd.; appointment letter qua Dev Karan had been proved as Ex. PW-
5/D showing that Dev Karan was appointed with the company at a
monthly salary of Rs.16,041/-; the breakup of his salary had also been
given showing that a gross earning of Rs.6,500/- towards basic pay
besides dearness allowance; he was entitled to HRA, medical allowance
and City Compensatory Allowance. Appointment letter qua Jitender Singh
had been proved as Ex. PW-5/B showing that Jitender Singh was appointed
with the company at a monthly salary of Rs.36,875/-; the breakup of his
salary had also been given showing that a gross earning of Rs.10,500/
- towards basic pay besides dearness allowance; he was entitled to HRA,
medical allowance and City Compensatory Allowance. Appointment letter
qua Pawan Kumar had been proved as Ex.PW-5/C showing that Pawan
Kumar was appointed with the company at a monthly salary of Rs.26,666/
-; the breakup of his salary had also been given showing that a gross
earning of Rs.8,000/- towards basic pay besides dearness allowance; he
was entitled to HRA, medical allowance and City Compensatory Allowance.
The Tribunal had not taken the allowances into consideration but the
annual salary after deducting 10% as income tax had been computed as
the income. Admittedly future prospects had not been considered. The
pension being received by the deceased was also taken into consideration;
50% of the same was deducted; keeping in view the fact that the remaining
50% would have probably been spent by the deceased upon himself; this
calculation up to this point suffers from no infirmity.
6. However future prospects should have been taken into account
and the Tribunal has erred in not taking this into account. In the judgment
reported in AIR 2009 SC 3104 Sarla Verma & Others Vs. Delhi Transport
Corporation, the Apex Court has held that the future prospects should
not be considered of deceased who are above 50 years of age. This
legislation is a socially benevolent legislation engrafted with an intent to
allow compensation to be paid to the claimants of a deceased as early as
possible; it must be a ‘just compensation’. Admittedly in all the three
cases i.e. Pawan Kumar, Jitender Singh and Dev Karan they were all
aged below 50 years. Pawan Kumar was 33 years of age; Jitender Singh
was 35 years of age; Dev Karan was 49 years of age on the date of the
accident.
7. The Apex Court in Sarla Verma (Supra) had also noted that the
future prospects may not be considered if the deceased does not have
a permanent job. Learned counsel for the respondent has also placed
reliance upon the judgment of the Apex Court reported in AIR 2006 SC
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his submission that to establish the claim of future prospects, there must
be cogent evidence.
8. In this context, the testimony of PW-5 as noted supra is relevant.
The appointment letters of each of three persons are on record; admittedly
all the three deceased persons were mechanical engineers; they were
highly qualified; being specialized in a special professional field; admittedly
all of them had served in the Indian Navy prior to their having been
appointed in the service of M/s DEC Property Management Pvt. Ltd.
Clause 4 of the appointment letter is also relevant. It states that their
period of probation will be for a period of one year which may be
extended at the discretion of the employer or this may be dispensed with
even earlier or thereafter till confirmation. Their appointment letters are
dated 25.08.2008. The accident had occurred on 08.11.2008 i.e. within
six months of the date of their appointment. It is nobody’s case that the
deceased had any adverse report against them. Bifurcation of salary of
each of the deceased had also been produced in the evidence of PW-5;
there also a promotion policy of the company. The promotion policy in
fact states that a permanent employee is one who is employed against a
permanent post and may also include a probationer; salary will be increased
annually in April ever year; the salary chart of the deceased placed on
record also shows that M/s DEC Property Management Pvt. Ltd. was a
large company having several employees on its work list.
9. From this record, it is apparent that the deceased were all special
qualified professional persons who were working in the field of their
specialized capacity; it is also a known fact that these persons after
having served in the Indian Navy had joined the service of M/s DEC
Property Management Pvt. Ltd. The evidence led before the Tribunal
establishes that their jobs were of a permanent nature and they should
have also been considered for future prospects; the promotion policy of
the company also substantiates enhancement. The rise in the price index
and inflation for which notice has been taken by our courts time and
again cannot be lost sight of; this has illegally been ignored by the
Tribunal. There was ample evidence to support this submission of the
appellants. The judgment of Bijoy Kumar Dugar (Supra) is inapplicable
in this factual scenario.
10. The appellants are entitled to future prospects which would be
double the amount of salary (in the case of Anita Devi and Rekha Yadav
and 30% in the case of Nirmala Devi) after deduction of tax. This is in
conformity with the ratio of the catena of judgments reported in 2008
ACJ 2182 (Delhi) Kanwar Devi Vs. Bansal Roadways, 2007 ACJ 2165
(Delhi) Lekhraj Vs. Suram Singh and 2009 ACJ 1921 (Delhi) National
Insurance Co. Ltd. Vs. Renu Devi.
11. The modified Award under the head of loss of dependency will
be read as following:-
(I) In the case of Anita wife of deceased Pawan
Salary of the deceased Rs.23,500/-
Adding future prospects Rs. 11,750/-
Rs. 35,250/-
Adding family pension Rs.2,057/-
Rs. 37,307/-
Deducting 10% tax liability Rs. 3730/-
Rs. 33,577/-
Deducting 1/4th personal expenses Rs. 8,394/-
Rs. 25,183/-X12X16 =
Total loss of dependency Rs. 48,35,136/-
(II) In the case of Rekha Yadav wife of Jitender
Salary of the deceased Rs. 32,500/-
Adding future prospects Rs. 16,250/-
Rs. 48,750/-
Adding family pension Rs.1,363/-
Rs. 50,113/-
Deducting 10% tax liability Rs. 5,011/-
Rs. 45,102/-
Deducting 1/4th personal expenses Rs. 11,275/-
Rs. 33,827/-X12X16 =
Total loss of dependency Rs. 64,94,784/-
(III) In the case of Nirmala Devi wife of deceased Dev
Karan Salary of the deceased Rs. 14,000/-
Adding future prospects Rs. 4,200/-
Rs. 18,200/-
Indian Law Reports (Delhi) ILR (2011) VI Delhi679 680State v. Sunil Dutt (V.K. Shali, J.)
Adding family pension Rs. 1,715/-
Rs. 19,915/-
Deducting 10% tax liability Rs. 1,991/-
Rs. 17,924/-
Deducting 1/4th personal expenses Rs. 13,443/-
Rs. 13,443/-X12X13 =
Total loss of dependency s. 20,97,108/-
12. The non-pecuniary damages remained unmodified. The interest
amount also calls for no interference.
13. Appeals are disposed of in the above terms.
ILR (2011) VI DELHI 679
CRL. L.P.
STATE ....PETITIONER
VERSUS
SUNIL DUTT ....RESPONDENT
(V.K. SHALI, J.)
CRL. L.P. NO. : 260/2008 DATE OF DECISION: 26.07.2011
Prevention of Food Adulteration Act, 1954—Sections
7, 13, 16—Petitioner preferred appeal against
judgment, acquitting Respondent accused for offence
punishable under Section 7 of Act—Respondent was
convicted by learned Metroplitan Magistrate—On
appeal by Respondent, learned Additional Sessions
Judge observed, sample obtained by Food Inspector
not homogeneous and consequently not
representative in character—Also, variation in reports
of Director, CFL and Public Analyst about content of
adulteration as well as in values, thus acquitted
Respondent—Held:- Once accused exercises his right
under Section 13 (2) of Prevention of Food Adulteration
Act and voluntarily gets second sample examined
from Director, CFL, he does so at his own risk—Report
of Director, CFL, statutorily supersedes report of
Public, Analyst for all practical purposes but both still
have to be looked in to for the purpose of arriving of
the conclusion as to whether sample was
representative in character or not—Ld Sessions Judge
rightly concluded that sample was not homogeneous—
Leave to appeal declined.
I have gone through the judgment passed by the learned
Additional Sessions Judge, which is quite exhaustive and
has referred to a number of judgments of this High Court
and that of the Apex Court. They sum up the legal position
very succinctly. In all such cases, it has been held that once
the accused exercises his right under Section 13(2) of
Prevention of Food Adulteration Act and voluntarily gets the
second sample examined from Director, CFL, he does so at
his own risk. The report in this regard, statutorily supersedes
the report of the Public Analyst for all practical purposes.
However, there have been judgments including the Full
Bench decision in Bishan Sarup’s case (supra) where this
Court has observed that although the finality and
conclusiveness is attached to the report of the Central Food
Laboratory, however, the report will still be open to challenge
by the party and it may still have to be ascertained by the
Court as to whether the adulteration is established in the
report or not. It was also observed that it is open to the
accused to show that in the facts of the given case, the
sample which was sent for analysis to the Director, CFL,
could not be taken to be a representative sample of the
food articles that were sent for examination. Such a defence
has been taken by the respondent-accused in his statement
under Section 313, Cr.P.C. and he has also examined DW-
1 who has stated in his statement that at the time when the
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sample was taken, there was no electricity and consequently,
some of the ice candies were frozen whereas others were
semi-solid. Similar statement was given by the other defence
witness, though they were not as favourable to the
respondent-accused as DW-1. (Para 9)
Important Issue Involved: Once accused exercises his
right under Section 13 (2) of Prevention of Food Adulteration
Act and voluntarily gets second sample examined from
Director, CEL, he does so at his own risk—Report of
Director, CFSL, statutorily supersedes report of Public
Analyst for all practical purposes but it may still have to be
ascertained by Court as to whether adulteration is established
in report or not.
[Sh Ka]
APPEARANCES:
FOR THE PETITIONER : Mr. Naveen Sharma, Additional
Public Prosecutor for Mr. Pawan
Sharma, Standing Counsel for the
State.
FOR THE RESPONDENT : None.
CASE REFERRED TO:
1. MCD and R.N. Gujral vs. Bishan Sarup 1972 FAC 273
(Del) (FB).
RESULT: Appeal dismissed.
V.K. SHALI, J. (Oral)
1. This is a leave to appeal filed by the State against the judgment
dated 03.07.2008 passed by Shri S.K. Sarvaria, learned Additional Sessions
Judge, New Delhi, acquitting the respondent-accused of an offence under
Section 7 of the Prevention of Food Adulteration Act, in respect of
which he was held guilty by the learned Metropolitan Magistrate.
2. Briefly stated, the facts of the case are that the appellant Food
Inspector is alleged to have taken a sample of 18 sticks of ice candy
from the freezer of the respondent accused on 06.04.1989 at about 5 PM
with the help of Food Inspector Rajesh Kumar. The samples of ice
candies were taken with the help of clean and dry ‘patilas’ and spoons,
and thereafter divided in three equal parts. They were separately sealed
after adding 24 drops of formalin in each counterpart. Statutory documents
are alleged to have been prepared on the spot and one sample was sent
to the Public Analyst for the purpose of examination. The Public Analyst
after examination, opined that the sample contained dye content to the
extent of 0.27gms/Kg. which was beyond the permissible limit of 0.20
gms/Kg which was, the fixed standard under the Prevention of Food
Adulteration Act. Accordingly, after obtaining necessary sanction from
Director (PFA), a complaint under Section 7 read with Section 16 of the
Prevention of Food Adulteration Act was filed in the Court of Metropolitan
Magistrate on 07.06.1989.
3. The accused has put in his appearance and exercised his right
under Section 13(2) of the Prevention of Food Adulteration Act to get
the second sample of the article of food examined from the Director,
CFL, Mysore. Accordingly, a second sample of the ice candy was sent
to Director, CFL, Mysore who gave a certificate of examination dated
27.07.1989 and confirmed the finding that the sample was not conforming
to the standard so far as the total dye content is concerned. It was
opined that the total dye content was 0.310 gms/Kg. whereas the maximum
permissible limit was 0.20 gms/Kg. Accordingly, a notice under Section
251 of Cr.P.C. was given to the respondent-accused.
4. The prosecution in support of its case examined three material
witnesses, namely, PW1 Gopal Singh, complainant, PW-2 Food Inspector
Rajesh Kumar and PW3 R.K. Ahuja attesting witness.
5. The accused in his statement under Section 313 Cr.P.C. admitted
that he had sold the ice candy of which the sample was taken. However,
he took the plea that at the time when the sample of the ice candy was
taken, there was no electricity supply and, therefore, some of the ice
candy stock were in a solid state while as the other was melting. He also
took the plea that the sample which was taken was not representative in
character because of the lack of homogeneity in the food article that was
obtained.
Indian Law Reports (Delhi) ILR (2011) VI Delhi683 684State v. Sunil Dutt (V.K. Shali, J.)
6. The respondent-accused in support of his case examined DW-
1 Harbhajan Singh and DW-2 Shri S. Mahendru. The learned Magistrate
vide judgment dated 10.08.1999 convicted the accused for an offence
under Section 7 of the Prevention of Food Adulteration Act and by order
dated 20.08.1999, sentenced him to undergo simple imprisonment for
one year along with a fine of Rs.2000/-.
7. The appellant, feeling aggrieved by the said conviction and
sentence, preferred an appeal bearing No. 54/1999 titled Sunil Dutt versus
State (Delhi Administration), which was disposed of on 03.07.2008.
thereby acquitting the appellant of all the charges. The reason for acquittal
handed down by the learned Additional Sessions Judge was that the
sample which was obtained by the Food Inspector PW-2 was not
homogeneous and consequently not representative in character. For arriving
at this conclusion, the learned Additional Sessions Judge relied upon the
values of the edible article given in the two reports i.e. of Public Analyst
and that of the Director, CFL, Mysore. It was observed by the learned
Additional Sessions Judge that the report of the Public Analyst showed
that the total sugar found in the sucrose in the sample was 21.2% and
the dye content was 0.27 gm/kg. In contrast to this, the certificate given
by the Director, CFL, Mysore showed that the total sugar was found to
be 19.95% by weight while as the total quantity of artificial colouring
was found to be 0.310 gms./Kg. It was observed by the learned Additional
Sessions Judge that though both the samples had failed so far as the dye
content is concerned, but the sugar content had also reduced from
21.2% to 19.95%, therefore, there was a variation in the values and the
benefit of the same has to be given to the accused, as he had taken the
plea that the sample was not representative in character. The learned
Additional Sessions Judge in arriving at such a finding has taken note of
the fact that although statutorily the report of the Director, CFL supersedes
the report of the Public Analyst, but at the same time, the learned Additional
Sessions Judge considered the Full Bench decision of the Delhi High
Court in MCD and R.N. Gujral versus Bishan Sarup 1972 FAC 273
(Del) (FB), and observed that the report of the Director, CFL, Mysore,
is obtained by the accused himself and it gets superimposed on the report
of the Public Analyst. But it has been observed that the report of the
Public Analyst and the Director, CFL can be looked into for the purpose
of arriving at a conclusion as to whether the sample was representative
in character or not. This will be evident from the variation not only in
the values of the two reports but also the content of the adulterant or the
offending article which has made such edible article adulterated.
8. The State, feeling aggrieved by the acquittal, has assailed the
judgment passed by the learned Additional Sessions Judge. However, it
must candidly be stated that the learned counsel for the State was not
able to show any authority contrary to the Full Bench decision in Bishan
Sarup’s case (supra), which has been referred to by the learned Additional
Sessions Judge in his judgment in order to arrive at such a conclusion.
9. I have gone through the judgment passed by the learned Additional
Sessions Judge, which is quite exhaustive and has referred to a number
of judgments of this High Court and that of the Apex Court. They sum
up the legal position very succinctly. In all such cases, it has been held
that once the accused exercises his right under Section 13(2) of Prevention
of Food Adulteration Act and voluntarily gets the second sample examined
from Director, CFL, he does so at his own risk. The report in this
regard, statutorily supersedes the report of the Public Analyst for all
practical purposes. However, there have been judgments including the
Full Bench decision in Bishan Sarup’s case (supra) where this Court
has observed that although the finality and conclusiveness is attached to
the report of the Central Food Laboratory, however, the report will still
be open to challenge by the party and it may still have to be ascertained
by the Court as to whether the adulteration is established in the report
or not. It was also observed that it is open to the accused to show that
in the facts of the given case, the sample which was sent for analysis
to the Director, CFL, could not be taken to be a representative sample
of the food articles that were sent for examination. Such a defence has
been taken by the respondent-accused in his statement under Section
313, Cr.P.C. and he has also examined DW-1 who has stated in his
statement that at the time when the sample was taken, there was no
electricity and consequently, some of the ice candies were frozen whereas
others were semi-solid. Similar statement was given by the other defence
witness, though they were not as favourable to the respondent-accused
as DW-1.
10. The learned Magistrate has disbelieved their testimony by
observing that since the witness himself has observed that some of the
ice candies were frozen and some were melting, there is a contradiction
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in the statement of fact itself. The learned Magistrate reasoned that if
there was no light, then all the ice candies ought to have melted. I find
this reasoning to be illogical because when the samples were taken from
the deep freezer, and assuming that there was no electricity, it is not
necessary that all the ice candies will melt in a uniform manner. The ones
which were kept at the bottom of the freezer would still be slightly
frozen whereas the ones near the opening would start melting much
faster, even if all the ice candies were taken out simultaneously.
11. The valuation of the two parameters, namely, sugar content and
the content of dye are at a variance in the two reports, i.e. of the Public
Analyst and of the Director, CFL. This has not been explained by the
prosecution anywhere as to why it has happened so. It is not clear
whether this is because of the lapse of time or because of some other
reason. In such a contingency, the plea of the respondent-accused that
the sample was not homogeneous cannot be said to be without any merit
and hence, cannot be brushed aside. In a criminal trial when there are
two possible views, one in favour of the accused and the other against
him. The court would invariably lean in favour of the view favouring the
accused. The learned Additional Sessions Judge in my considered opinion
has rightly relied on the view favouring the accused. Moreover, one must
also be pragmatic to the realities of life. The sample was purported to
have been taken almost 22 years back and, therefore, I feel that simply
by granting the leave to appeal, the final adjudication of the matter will
still kept under suspense. It is not a case where some adulterant has been
mixed from outside and, therefore, it is better to give quietus to the
matter.
12. For the reasons mentioned above, I am of the considered opinion
that no ground is made out by the State for grant of leave to appeal
against the impugned order dated 08.07.2008 acquitting the respondent
accused. Accordingly, the leave to appeal is dismissed.
ILR (2011) VI DELHI 686
CRL. A.
DHARAMBIR & ANR. ....APPELLANTS
VERSUS
STATE ....RESPONDENT
(S. RAVINDRA BHAT & G.P. MITTAL, JJ.)
CRL. A. NO. : 130/1998 & DATE OF DECISION: 26.7.2011
CRL. A. NO. : 122/1998
(A) Indian Penal Code, 1860—Sections 498A, Section 302,
read with Section 34—Appellant convicted under
Section 498 (A) & 302 (IPC)—Trial Court in addition to
relying on the testimony of witnesses also relied on
the dying declaration recorded by the Doctor on MLC
Exhibit PW16 though rejected the dying the declaration
PW5/A recorded by PW-13 SI Raghunath Singh on the
ground that it was neither recorded in the presence
of the Doctor to vouch about the fitness of deceased
nor was attested by any person who was present at
the time of recording the statement and the statement
had thumb impression in which ridges were visible
despite deceased having suffered 98% burns—Present
appeal filed by Appellants—It was observed that after
the judgment of five Judges Bench of the Supreme
Court in Laxman vs. State of Maharashtra (2002) 6 SCC
710, fitness certificate in every dying declaration has
become immaterial and what is required to be seen is
whether the person hearing or recording the dying
declaration was satisfied that the person making the
dying declaration is mentally fit—PW13’s deposition
that he had obtained fitness certificate from the Doctor
was not shaken in cross-examination to show that
deceased was not conscious—Also, there is no
Indian Law Reports (Delhi) ILR (2011) VI Delhi687 688Dharambir & Anr. v. State (G.P. Mittal, J.)
universal rule that dying declaration recorded by Police
Officer is unreliable or must necessarily be made to a
Magistrate—Since SDM had expressed inability to
reach Hospital and patient was critical, it was duty of
PW13 to record statement—There is also no
requirement of Law that dying declaration must be
recorded in a specified format and it is irrelevant if
statement is not recorded in question answer form—
The dying declaration Exhibit PW5/A recorded by PW3
rejected wrongly—The dying declaration coupled with
other evidence sufficient to prove guilt of Appellants.
Now, turning to Seema’s dying declaration recorded in MLC
Ex. PW-8/A; we may say that criticism regarding her fitness
and truthfulness of the dying declaration is ill-founded. It is
noteworthy that Paparambaka Rosamma’s case (supra)
relied by the Appellant’s counsel was overruled by a five
Judges Bench of the Supreme Court in Laxman v. State of
Maharashtra, (2002) 6 SCC 710. In the case of Laxman
(supra) the Supreme Court held as under: -
“Normally, therefore, the court in order to satisfy
whether the deceased was in a fit mental condition to
make the dying declaration looks up to the medical
opinion. But where the eyewitnesses state that the
deceased was in a fit and conscious state to make the
declaration, the medical opinion will not prevail, nor
can it be said that since there is no certification of the
doctor as to the fitness of the mind of the declarant,
the dying declaration is not acceptable.” (Para 21)
The reception of dying declaration in evidence is an exception
to the non-admissibility of hearsay evidence. It is believed
that truth sits on the tongue of a dying man; he wouldn’t lie
for he is to meet his Creator. In the case of Laxman (supra)
the Supreme Court observed that the situation in which a
man is on his death bed is very solemn and serene, and this
in fact is the reason, to accept the veracity of his statement
in law. It is for this reason that the requirements of oath and
cross-examination are dispensed with. It was added that
since the accused would not have any opportunity of cross-
examination, the court insists that the dying declaration
should be of such a nature so as to inspire full confidence
of the Court in its truthfulness and correctness. In Kundula
Bala Subrahmanyam v. State of A.P., (1993) 2 SCC 684,
the sanctity of a dying declaration was highlighted as under:
-
‘‘A dying declaration made by person on the verge of
his death has a special sanctity as at that solemn
moment, a person is most unlikely to make any untrue
statement. The shadow of impending death is by itself
the guarantee of the truth of the statement made by
the deceased regarding the causes or circumstances
leading to his death. A dying declaration, therefore,
enjoys almost a sacrosanct status, as a piece of
evidence, coming as it does from the mouth of the
deceased victim. Once the statement of the dying
person and the evidence of the witnesses testifying to
the same passes the test of careful scrutiny of the
courts, it becomes a very important and a reliable
piece of evidence and if the court is satisfied that the
dying declaration is true and free from any
embellishment, such a dying declaration, by itself, can
be sufficient for recording conviction even without
looking for any corroboration.’’ (Para 25)
The dying declaration Ex.PW-5/A recorded by PW-13 SI
Raghunath Singh was rejected by the Trial Court primarily
on the ground that the statement of Seema was not recorded
in question answer form; doctor was not present throughout
to vouch that Seema was fit while her statement was being
recorded by PW-13 and that the ridges of the thumb were
visible on the declaration Ex.PW-5/A in spite of the fact that
Seema sustained 98% burns and thus it was not possible
that the ridges would be visible while obtaining a thumb
impression. (Para 26)
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(B) Code of Criminal Procedure, 1973—Section 157—
Officer In-charge of Police Station enjoined under
Section 157 to forward copy of FIR forthwith to Illka
Magistrate empower to take cognizance of an offence
so that prosecution may not concoct facts and set up
false case against an accused—However, mere delay
in forwarding the copy of FIR to the Magistrate under
Section 157 which was otherwise recorded promptly is
of no consequence, if the Court is otherwise
convicted about the truthfulness of the prosecution
case and there is otherwise positive and trustworthy
evidence on record.
The Section 157 of Cr.P.C. enjoins upon an officer in
charge of a Police Station to send a report forthwith to the
Illaqa Magistrate empowered to take cognizance of an offence
when he has reason to suspect the commission of an
offence which he is empowered under section 156 to
investigate. The purpose of sending a copy of an FIR to the
Magistrate forthwith is that the prosecution may not be able
to concoct facts and setup a false case against an accused
as the FIR contains a brief statement of events. In the case
of Munshi Prasad & Ors. v. State of Bihar, (2002) 1 SCC
351, it was held that while it is true that Section 157 of the
Code makes it obligatory on the officer in charge of the
police station to send a report of the information received to
a Magistrate forthwith, but that does not mean and imply to
denounce and discard an otherwise positive and trustworthy
evidence on record. Technicality ought not to outweigh the
course of justice – if the court is otherwise convinced and
has come to a conclusion as regards the truthfulness of the
prosecution case. Similarly, in the case of Anil Rai v. State
of Bihar, (2001) 7 SCC 318, it was held that where the FIR
is shown to have been promptly recorded delay in sending
the copy of FIR to Area Magistrate is not of any consequence.
(Para 18)
Important Issue Involved: (A) In order to satisfy whether
deceased was in a fit mental condition to make the time
declaration, what is necessary is that the person recording
the statement is satisfied about the mental fitness of the
deceased while recording the dying declaration. Fitness
Certificate by a Doctor in every dying declaration is not
essential.
(B) Mere delay in forwarding the copy of FIR to the
Magistrate under Section 157 of Code of Criminal Procedure
1973, which was otherwise recorded promptly is of no
consequence if the Court is otherwise convinced about the
truthfulness of the prosecution case.
[An Ba]
APPEARANCES:
FOR THE APPELLANTS : Mr. U.N. Bhachawat, Sr. Advocate
with Mr. Syed Hasan Isfahani and
Mr. Alok Bhachawat, Advocates.
FOR THE RESPONDENT : Mr. Lovkesh Sawhney, APP for the
State
CASES REFERRED TO:
1. Munshi Prasad & Ors. vs. State of Bihar, (2002) 1 SCC
351.
2. Laxman vs. State of Maharashtra, (2002) 6 SCC 710.
3. Paras Yadav vs. State of Bihar, 1999 SCC (Cri) 104.
4. Paparambaka Rosamma vs. State of A.P., (1999) 7 SCC
695.
5. Betal Singh vs. State of M.P., 1996 SCC (Cri) 624.
6. Kundula Bala Subrahmanyam vs. State of A.P., (1993) 2
SCC 684.
7. Dalip Singh vs. State of Punjab [(1979) 4 SCC 332 :
1979 SCC (Cri) 968 : AIR 1979 SC 1173].
Indian Law Reports (Delhi) ILR (2011) VI Delhi691 692Dharambir & Anr. v. State (G.P. Mittal, J.)
8. Munnu Raja vs. State of M.P. [(1976) 3 SCC 104 : 1976
SCC (Cri) 376 : AIR 1976 SC 2199].
RESULT: Appeal Dismissed.
G.P. MITTAL, J.
1. The Appellants Dharambir, Raghubir Singh and Satbir @ Sattey
(the Appellant Ratti Kaur has expired and the proceedings against her
have abated) stand convicted by the judgment and order dated 24.03.1998
and 27.03.1998 passed by learned Addl. Sessions Judge, Delhi, (‘‘the
impugned judgment’’) for offences punishable under Section 498A and
Section 302 Indian Penal Code (IPC) read with Section 34 IPC. They
were sentenced to undergo life imprisonment for the offence under Section
302 IPC and a rigorous imprisonment for 2 years for the offence under
Section 498A IPC. Apart from this sentence, fines were also imposed.
2. First, the facts. Seema (the deceased) was married to Appellant
Dharambir about a year and half prior to 30.08.1991. On the night of
30.08.1991 she sustained burn injuries and was removed to Safdarjung
Hospital by PW-1 Kishan Kapoor (her immediate neighbour) and PW-2
Mahavir Singh (her brother-in-law) who used to reside in her
neighbourhood. Ratti Kaur (now deceased) was Seema’s mother-in-law;
the Appellant Dharambir is the husband whereas Appellants Raghubir
Singh and Satbir @ Sattey are her Brothers-in-law.
3. According to the prosecution version on 30.08.1991 Seema
crossed over to the roof of PW-1 Kishan Kapoor’s house, after sustaining
burn injuries. On noticing Seema in this condition PW-1, called PW-2
Mahavir Singh (her brother-in-law) who was living just one house away
from his house. On seeing Seema in that condition PW2 wrapped a
Chadar around Seema. Since, the width of the lane where they resided
was very narrow, Seema was put on a cot and was first taken to the
Police Station Mehrauli, and then she was removed to Safdarjung Hospital
in a PCR van.
4. Seema was admitted to Safdarjung Hospital at 1:35 A.M. on
31.08.1991 by PW-1, PW-2 and one Ashwani. While giving the history
of sustaining burns, Seema told Dr. Rohit Nayyar (PW-16) that her in-
laws were demanding dowry of ‘ 35,000/- from her father and when her
father refused to pay the dowry, her husband, her two brothers-in-law
(Raghubir and Satbir) and her mother-in-law poured kerosene oil on her
and set her ablaze. At the time of her admission in the Hospital Dr. Rohit
Nayyar found the patient to be conscious but dehydrated; she was found
to be having 100% deep burns.
5. At 1:50 A.M. PW-13 SI Raghunath Singh reached the Hospital
and moved an application to Dr. Rohit Nayyar for recording Seema’s
statement. After obtaining fitness certificate from the doctor, he (SI
Raghunath Singh) recorded Seema’s statement Ex. PW-5/A. He made
endorsement Ex. PW-5/B and sent it to the Police Station for registering
the case. In the statement recorded by the IO, Seema attributed specific
role to the Appellants, holding them responsible for setting her on fire.
6. Unfortunately, Seema succumbed to her burn injuries on 31.8.1991
at about 5:40 A.M. Dr. B. Swain (PW-6) who conducted postmortem of
Seema, found the extent of burns to be 98%. He did not find any mark
of struggle and opined that the cause of death was shock following ante-
mortem burn injuries.
7. The Appellants were charge sheeted for the offences punishable
under section 498A, 302 read with Section 34 IPC. On Appellant’s
pleading not guilty, the prosecution examined 16 witnesses.
8. The Appellants were examined under Section 313 Cr.P.C. The
factum of Seema being wife of Dharambir and the inter se relationship
between the Appellants and the deceased was not disputed. The Appellants
denied having demanded or received any dowry much less Rs. 35,000/
- which was alleged to have been demanded by them. The Appellants
claimed that they were ignorant of any dying declaration was recorded
by PW-16 Dr. Rohit Nayyar or PW-13 SI Raghunath Singh. It was the
case of all the Appellants that Seema and Appellant Dharambir were
staying separately in their house where the incident occurred, whereas
rest of the Appellants were residing separately with their respective
families. The Appellants argued that Seema was frustrated as she could
not conceive any child since solemnization of marriage in the year 1990,
and on account of frustration she committed suicide.
9. The Appellant examined DW-1 Khemchand primarily to prove
that nobody was present in H. No.255 on 30.08.1991 at 9:30 P.M. when
the said incident took place. The said witness deposed that Appellant
Dharambir who was working as a Driver went to his house after 11:00
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P.M. DW-2 Rambir Singh was examined to prove the plea of alibi put
up by Dharambir. By impugned judgment the Trial Court rejected the
Dharambir’s alibi plea. It also rejected the dying declaration alleged to be
made to PW-1 and PW-2 as they (PW-1 & PW-2) turned hostile.
10. The Trial Court also rejected the dying declaration Ex. PW-8/
A recorded by PW-13 on the ground that it was neither recorded in the
presence of the doctor nor was attested by any person, who was present
at the time of recording the statement. The Trial Court, however, found
the dying declaration on Ex.PW-8/A (Seema’s MLC) by PW-16 Dr.
Rohit Nayyar to be reliable, truthful and made by Seema in a fit state of
mind. The Trial Court also found that the allegation of demand of Rs.
35,000/- as dowry was established by the testimony of PW-7 Mahavir
Singh (Seema’s father). Thus, the Appellants were convicted and sentenced
as aforesaid.
11. We have heard Mr. U. N. Bachawat, learned Senior Counsel
assisted by Mr. Mahipal Malik, Mr. Uday Singh, Mr. Syed Hasan Isfahani
and Mr. Alok Bhachawat, Advocates and Mr. Lovkesh Sawhney, learned
APP for the State and have perused the record.
12. It is argued by the learned counsel for the Appellants that
Seema had sustained 100% burn injuries and her pulse was 140 as
against the normal pulse of 60 to 90; it is not recorded on the MLC that
Seema was oriented and thus there was nothing on the record to show
that she was in a fit state of mind to make a statement. It is contended
that Dr. Rohit Nayyar nowhere recorded in the MLC Ex.PW-8/A nor
issued any fitness certificate that the patient was conscious and was in
a fit state of mind to make a statement. It is submitted that in the
circumstances, the Trial Court fell into grave error in relying on the dying
declaration recorded in the MLC Ex.PW-8/A.
13. The Learned Senior Counsel places reliance on Paparambaka
Rosamma v. State of A.P., (1999) 7 SCC 695. It is urged that a
conviction can be recorded on the basis of dying declaration if the same
is truthful and wholly reliable and whenever there is suspicion the Court
ought not to rely on a dying declaration without corroboration.
14. The learned Senior Counsel urges that PW-1 and PW-2 have
not only disowned the alleged dying declaration made to them, rather,
PW-1 has deposed that the deceased had informed him that there was
nobody in the house and, therefore, she asked him to take her to Hospital.
This part of the PW-1’s testimony demolishes prosecution’s version that
the Appellants were responsible for setting Seema on fire.
15. Mr. Bachawat, learned Senior Counsel contended that, Ashwani,
who was admittedly one of the persons present at the time of Seema’s
admission in the hospital was not examined by the prosecution and,
therefore, an adverse inference has to be drawn against him. Further, it
is also argued that the dying declaration was manipulated and that is why
the special report was not sent to the learned Illaqa Magistrate as required
under Section 157 of the Code of Criminal Procedure (Cr.P.C.).
16. On the other hand Mr. Lovkesh Sawhney, learned APP on
behalf of State submits that the dying declaration made by Seema was
true, voluntarily and made without any tutoring; the same was correctly
and faithfully recorded by PW-16 Dr. Rohit Nayyar while Seema was in
a fit state of mind to make the statement. It is submitted that the demand
of Rs. 35,000/- as dowry stood established from the testimony of Seema’s
father (PW-7). Though, argued Mr. Sawhney, there was no need of
corroboration to a reliable dying declaration yet, there is sufficient
corroboration to the dying declaration in the shape of PW-7’s testimony
and thus no interference is called for in the Trial Court’s judgment.
17. The incident took place in an urbanized rural area i.e. Mehrauli.
Admittedly, PW-1 Kishan Kapoor is Dharambir’s and PW-2 Mahavir’s
(Appellant’s brother) immediate neighbour and the Appellants are Ratti
Kaur’s sons. It is not disputed that Seema went to PW-1 Kishan Kapoor
(for help), who in turn called PW-2 Mahavir and they removed her to
the Hospital. PWs 1 and 2 did not support the prosecution version that
Seema made a dying declaration to them. They were cross-examined by
the learned APP and were confronted with the portion of statement under
Section 161 Cr.P.C., where they stated that Seema made a dying
declaration to them. A suggestion by the learned APP that they had
deposed falsely in order to save the Appellants was of course denied by
them. It is very natural for a real brother and a neighbor to save the
culprits from possible punishment. Hence they did not support the
prosecution and resiled from their earlier statement made to the police.
The Appellants, therefore, cannot take any advantage of any stray statement
made by PW-1 that Seema had informed him that she had caught fire
when there was nobody in the house. The non-examination of
Indian Law Reports (Delhi) ILR (2011) VI Delhi695 696Dharambir & Anr. v. State (G.P. Mittal, J.)
Ashwani(whose name appeared in the MLC) does not affect the
prosecution’s case as quality and not the quantity of evidence has to be
considered. Since, the prosecution cited Mahavir and Kishan (out of the
three persons) as the persons who removed Seema to Safdarjung Hospital
no motive can be attributed to the prosecution in not citing Ashwani as
a witness in the case.
18. The Section 157 of Cr.P.C. enjoins upon an officer in charge
of a Police Station to send a report forthwith to the Illaqa Magistrate
empowered to take cognizance of an offence when he has reason to
suspect the commission of an offence which he is empowered under
section 156 to investigate. The purpose of sending a copy of an FIR to
the Magistrate forthwith is that the prosecution may not be able to
concoct facts and setup a false case against an accused as the FIR
contains a brief statement of events. In the case of Munshi Prasad &
Ors. v. State of Bihar, (2002) 1 SCC 351, it was held that while it is
true that Section 157 of the Code makes it obligatory on the officer in
charge of the police station to send a report of the information received
to a Magistrate forthwith, but that does not mean and imply to denounce
and discard an otherwise positive and trustworthy evidence on record.
Technicality ought not to outweigh the course of justice – if the court
is otherwise convinced and has come to a conclusion as regards the
truthfulness of the prosecution case. Similarly, in the case of Anil Rai
v. State of Bihar, (2001) 7 SCC 318, it was held that where the FIR
is shown to have been promptly recorded delay in sending the copy of
FIR to Area Magistrate is not of any consequence.
19. In the instant case Seema was removed to Safdarjung Hospital
at 1:35 A.M. on 31.08.1991 and the information about the same was sent
to her parents (who were residents of Gurgaon) by the IO much later.
The statement of Seema recorded in the MLC Ex. PW-8/A by Dr. Rohit
Nayyar was part of the official record and we have no reason to disbelieve
the same or that the same could have been manuplated. Thus, failure to
send the special report under Section 157 Cr.P.C. was notfatal to the
prosecution case.
20. The questions for consideration are whether there was any
harassment in connection with the demand of dowry and whether Seema
made any dying declaration to PW-16 Dr. Rohit Nayyar. Firstly, with
regard to the demand of dowry, the prosecution relies on the testimony
of PW-3, Mukhtiar Singh, PW-4 Rishi Pal Singh and PW-7 Mahavir
Singh. PW-7 Mahavir Singh deposed that he had received a compensation
(for acquisition of his land) of Rs. 5,00,000/- and gave a sum of Rs.10,000/
- twice to his daughter Seema i.e. Rs. 20,000/- in all. He deposed that
the accused persons kept silent for a few days and about a month prior
to her death Seema came to his house and asked for Rs. 35,000/- as the
said amount was demanded by all the accused. He deposed that he paid
another sum of Rs. 20,000/- to his daughter and sent her back to her in-
law’s house and asked her not to comeback for more money. Further,
he deposed that he could not meet his daughter thereafter. In his cross-
examination PW-7 admitted that he did not inform the Police that he
received a compensation of Rs. 5,00,000/-. At the same time no suggestion
was given to the witness that he had received a compensation of Rs.
5,00,000/-. The witness was confronted with his statement made to the
police where his claim that he paid Rs.10,000/- each on two occasions
and Rs. 20,000/- on another occasion was not recorded. However, there
was no cross-examination on the point of demand of ‘ 35,000/- by the
Appellants through Seema. Thus, it is established that there was demand
of dowry of Rs. 35,000/- by the Appellants.
21. Now, turning to Seema’s dying declaration recorded in MLC
Ex. PW-8/A; we may say that criticism regarding her fitness and
truthfulness of the dying declaration is ill-founded. It is noteworthy that
Paparambaka Rosamma’s case (supra) relied by the Appellants’ counsel
was overruled by a five Judges Bench of the Supreme Court in Laxman
v. State of Maharashtra, (2002) 6 SCC 710. In the case of Laxman
(supra) the Supreme Court held as under: -
‘‘Normally, therefore, the court in order to satisfy whether the
deceased was in a fit mental condition to make the dying
declaration looks up to the medical opinion. But where the
eyewitnesses state that the deceased was in a fit and conscious
state to make the declaration, the medical opinion will not prevail,
nor can it be said that since there is no certification of the doctor
as to the fitness of the mind of the declarant, the dying declaration
is not acceptable.’’
22. After the decision in Laxman’s case (supra) a fitness certificate
with every dying declaration has become immaterial. What is required to
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be seen is whether the person recording/ hearing the dying declaration is
satisfied that the person making the dying declaration is mentally fit.
23. In this case the condition of Seema is recorded to be critical,
her pulse was 140 per minute. It is further recorded that she was
conscious and gave her history herself implicating the Appellants. During
the trial PW-16 Dr. Rohit Nayyar was recalled for cross-examination
under Section 311 Cr.P.C. at Appellant’s instance. Dr. Rohit Nayyar was
frank enough to admit that the pulse of a normal person varies from 60
to 90 per minute and whenever the patient loses fluid or supply of blood,
the pulse rate goes up; further he also stated that whenever blood pressure
decreases, blood supply to brain decreases. The witness stated that he
had not recorded the patient to be oriented but had recorded her to be
conscious, which would mean that she was not disoriented. A suggestion
was given to Dr. Rohit Nayyar that Seema did not make any statement
and that he recorded patient’s history on IO’s instructions. It is not
suggested as to how Dr. Rohit Nayyar, who was working as a Senior
Resident Doctor in Safdarjung Hospital was under influence of the IO.
Thankfully, it was not suggested to the doctor that Seema’s parents or
any of her other relations were present due to which Seema made the
statement after tutoring.
24. PW-16 Dr. Rohit Nayyar was a senior doctor, who at the
relevant time was doing his super specialization (which he completed)
and joined Batra Hospital in 1994. We see no reason to doubt or disbelieve
the dying declaration (of Seema) as recorded by him.
25. The reception of dying declaration in evidence is an exception
to the non-admissibility of hearsay evidence. It is believed that truth sits
on the tongue of a dying man; he wouldn’t lie for he is to meet his
Creator. In the case of Laxman (supra) the Supreme Court observed
that the situation in which a man is on his death bed is very solemn and
serene, and this in fact is the reason, to accept the veracity of his
statement in law. It is for this reason that the requirements of oath and
cross-examination are dispensed with. It was added that since the accused
would not have any opportunity of cross-examination, the court insists
that the dying declaration should be of such a nature so as to inspire full
confidence of the Court in its truthfulness and correctness. In Kundula
Bala Subrahmanyam v. State of A.P., (1993) 2 SCC 684, the sanctity
of a dying declaration was highlighted as under: -
‘‘A dying declaration made by person on the verge of his death
has a special sanctity as at that solemn moment, a person is
most unlikely to make any untrue statement. The shadow of
impending death is by itself the guarantee of the truth of the
statement made by the deceased regarding the causes or
circumstances leading to his death. A dying declaration, therefore,
enjoys almost a sacrosanct status, as a piece of evidence, coming
as it does from the mouth of the deceased victim. Once the
statement of the dying person and the evidence of the witnesses
testifying to the same passes the test of careful scrutiny of the
courts, it becomes a very important and a reliable piece of evidence
and if the court is satisfied that the dying declaration is true and
free from any embellishment, such a dying declaration, by itself,
can be sufficient for recording conviction even without looking
for any corroboration.’’
26. The dying declaration Ex.PW-5/A recorded by PW-13 SI
Raghunath Singh was rejected by the Trial Court primarily on the ground
that the statement of Seema was not recorded in question answer form;
doctor was not present throughout to vouch that Seema was fit while her
statement was being recorded by PW-13 and that the ridges of the thumb
were visible on the declaration Ex.PW-5/A in spite of the fact that Seema
sustained 98% burns and thus it was not possible that the ridges would
be visible while obtaining a thumb impression.
27. There is no universal rule that the dying declaration recorded by
a police officer is unreliable. The superior courts have consistently held
that the dying declaration, once it is found to be true and recorded while
the deceased was in a fit state of mind to make the statement, is sufficient
to base conviction of an accused even without any corroboration. In
Betal Singh v. State of M.P., 1996 SCC (Cri) 624, the Supreme Court
took the view that it would not be right to reject every statement recorded
by a police officer. We would like to extract para 14 of the said judgment
hereunder: -
‘‘It is true that in Munnu Raja v. State of M.P. [(1976) 3 SCC
104 : 1976 SCC (Cri) 376 : AIR 1976 SC 2199] this Court has
struck a note of caution that the investigating officers, who are
naturally interested in the success of the investigation, ought to
be discouraged in recording the dying declarations, during the
Indian Law Reports (Delhi) ILR (2011) VI Delhi699 700Dharambir & Anr. v. State (G.P. Mittal, J.)
course of investigation. However, in Dalip Singh v. State of
Punjab [(1979) 4 SCC 332 : 1979 SCC (Cri) 968 : AIR 1979
SC 1173] this Court noticed the above observation and pointed
out that it is not meant to suggest that such dying declarations
are always untrustworthy. Their Lordships observed: (SCC p.
335, para 8)
‘‘We do not mean to suggest that such dying declarations
are always untrustworthy, but what we want to emphasize
is that better and more reliable methods of recording a
dying declaration of an injured person should be taken
recourse to and the one recorded by the police officer
may be relied upon if there was no time or facility available
to the prosecution for adopting any better method.’’
28. In Paras Yadav v. State of Bihar, 1999 SCC (Cri) 104, the
Supreme Court again placed reliance on the statement of deceased
Shambhu Yadav recorded by Sub-Inspector for conviction of the accused.
29. We are not inclined to subscribe to the reasoning given by the
Trial Court as stated earlier, in Laxman (supra) the controversy regarding
obtaining a certificate of fitness from the doctor was set at rest and it
was held that it is for the eye witness to decide whether the maker of
the statement was conscious or in a fit state to make the statement or
not. In this case the testimony of PW-13 that he (PW-13) had obtained
the fitness certificate from the doctor was not shaken in cross-examination
despite a lengthy and searching cross-examination. Nothing could be
brought out in PW-13’s cross-examination to show that Seema was not
conscious and fit to make the statement Ex.PW-5/A.
30. In Laxman (supra) it was observed that there was no requirement
of law that the dying declaration must necessarily be made to a Magistrate
or it should be recorded in a specified format. Therefore, it was immaterial
if the statement was not recorded by the IO in question answer form.
31. Of course, more value is attached to the dying declaration
recorded by a Magistrate or by a doctor attending to the patient for the
reason that they are not likely to be influenced by any extraneous
circumstances. In this case an attempt was made by PW-13 to have the
statement recorded by the SDM. PW-13 deposed that “the SDM showed
his inability as he was not having any arrangement of the conveyance”.
This part of PW-13’s testimony was not challenged in cross-examination.
Admittedly, Seema was in a critical condition and ultimately succumbed
to burn injuries at 5:40 A.M. Since, the SDM had expressed his inability
to reach the Hospital in the dead of night for the reason as stated above,
it was PW-13’s duty to record Seema’s statement.
32. Admittedly, Seema’s parents had not yet reached Delhi and
were not by Seema’s side when her statement was recorded. A suggestion
was given to PW-13 that Seema’s statement was falsely recorded as
Appellants had strained relations with their brother Mahavir Singh (PW-
2). No evidence was produced by the Appellants to show the said
constrained relationship, in fact no suggestion was given to PW-2 Mahavir
Singh in his cross-examination rather PW-2 Mahavir Singh did not support
the prosecution version in order to save the Appellants as has been
observed by us earlier. Thus, we are of the view that the dying declaration
Ex.PW-5/A recorded by PW-13 was wrongly rejected. In the
circumstances of the case PW-13 was exhibited to have recorded the
statement, which he did after obtaining a fitness certificate from Dr.
Rohit Nayyar (PW-16).
33. The statement Ex.PW-5/A narrates the details of the incident.
It corroborates PW-7 Mahavir’s testimony regarding demand of Rs.
35,000/-. It further corroborates a dying declaration on the MLC Ex.PW-
8/A regarding demand of Rs. 35,000/- by the Appellants as also setting
Seema on fire by the three Appellants and deceased Ratti Kaur. The dying
declaration Ex.PW-5/A goes a step further and gives the details of the
role of each of Appellants and the beatings given to her for non-meeting
the demand of Rs. 35,000/-
34. There may be stray cases where even a dying person may lie
or falsely implicate a person in a case. In those cases the maker of the
statement must have had a motive to falsely implicate a person which can
be either on account of any enmity or ill will. In this case the deceased
got married to Appellant Dharambir just one and half year before the
incident. The Appellants have taken up the plea that Seema was depressed
and wanted to take the extreme step of committing suicide. It is not
understandable why she would falsely involve her husband, two of her
brothers-in-law and her mother-in-law and not other relations (not even
the other brother-in-law i.e. PW-2 Mahavir).
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35. We are convinced that the dying declaration was truthfully
made and correctly and faithfully recorded by PW-16 Dr. Rohit Nayyar.
The same, by itself, is sufficient to base Appellants conviction, although
the same also finds corroboration from PW-7 Mahavir i.e. Seema’s
father and the dying declaration Ex.PW-5/A recorded by PW-13.
36. We do not find any error or infirmity in the impugned judgment
and order. The Appeals are without any merit and have, therefore, to fail.
The same are accordingly dismissed.
37. The Appellants were granted bail pending hearing of the appeals.
They are directed to surrender before the Trial Court on 16.08.2011 to
serve the remainder of the sentence, failing which steps shall be taken
by the Trial Court for their arrest. The Registry is directed to send a
copy of the judgment to the Trial Court immediately for compliance of
the said directions.
38. The appeals are disposed of in above terms.
ILR (2011) VI DELHI 701
LPA
C.S. AGARWAL ....APPELLANT
VERSUS
STATE & ORS. ....RESPONDENTS
(A.K. SIKRI, SURESH KAIT & M.L. MEHTA, JJJ.)
LPA NO. : 819/2010 & DATE OF DECISION: 29.07.2011
LPA NO. : 825/2010
Constitution of India, 1950—Article 226—Code of
Criminal Procedure, 1973—Section 482—Clause 10 and
18 of Letters Patent Act—Appellant C.S. Aggarwal,
Director of M/s Rockman Projects Limited (referred to
as RPL) made a representation for the purpose of
securing investment to Mr. Sameer Kohli, director of
M/s Kohli Housing and Development Pvt. Ltd—Intended
to develop one SEZ on 250 acres land situated at
Delhi-Jaipur Highway owned by RPL—Petitioner
received in-principal approval from the Govt. of India
for the project—On the representation, respondent
no. 3 agreed to buy 74% shares worth Rs. 185 crores
in the Special Purpose Vehicle (SPL) formed for this
purpose—MOU was signed—Advance payment of Rs.
40 crores was made by respondent no. 3 on the
condition that either this advance will be refunded
back to him or the land of 250 acres would be
transferred in favour of him in case the SEZ notification
is not received by 31st December 2008—Subsequently
an amount of Rs. 3 crores was given to the petitioner
by respondent no. 3—No notification could be received
by RPL by 31.12.2008—Mr. D.K. Jain, the other director
of RPL issued a public notice revoking all authority
given to the petitioner to act on behalf of RPL—After
expiration of the dead line, respondent no.3 demanded
his money back, but in Vain—Respondent made a
complaint, on the basis of which, FIR no. 266/09 was
registered against the appellant herein u/s 420/406/
120-B IPC—Appellant challenged the registration of
FIR and sought quashing of the same—Hon’ble Single
Judge dismissed the petition—Appellant preferred the
Letter Patent Appeal under clause 10 of the Letter
Patent Act—Respondent took a primary objection to
the maintainability of the Letter Patent Appeal on the
point that judgment was passed in exercise of criminal
jurisdiction and the Letter Patent appeal against the
order is clearly barred by Clause 10 and 18 of Letters
Patent Act—Held—Proceedings under Article 226 of
the Constitution would be treated as original civil
proceedings only when it concerns civil rights—A
fortiori, if it concerns a criminal matter, then such
proceedings would be original criminal proceedings—
Indian Law Reports (Delhi) ILR (2011) VI Delhi703 704C.S. Agarwal v. State & Ors. (A.K. Sikri, J.)
Letter Patent would lie when the Single Judge decides
the writ petition in proceedings concerning civil
rights—On the other hand, if these proceedings are
concerned with rights in criminal law domain, then it
can be said that the Single Judge was exercising his
‘criminal jurisdiction’ while dealing with such a petition
filed under Article 226 of the Constitution—In a petition
under Article 226 of the Constitution when the High
Court is exercising extraordinary jurisdiction, the
nature of proceedings, whether civil or criminal, would
depend upon the nature of right violated and the
nature of relief sought in the said petition—Writ of
this nature filed under Article 226 of the Constitution—
Seeking quashing of such an FIR would therefore be
‘‘criminal proceedings’’ and while dealing with such
proceedings, the High Court exercises its ‘‘criminal
jurisdiction’’—The LPAs are barred and not
maintainable—Dismissed.
No doubt, as per the aforesaid pronouncements explaining
the nature of power conferred under Article 226 of the
Constitution, the High court in such proceedings exercises
original jurisdiction. At the same time, it is also clarified that
the said jurisdiction is not to be confused with the ‘‘original
civil jurisdiction’’ of the High Court. Further, proceedings
under Article 226 of the Constitution would be treated as
original civil proceedings only when it concerns civil rights.
A fortiori, if it concerns a criminal matter, then such
proceedings would be original criminal proceedings. Letters
Patent would lie when the Single Judge decides the writ
petition in proceedings concerning civil rights. On the other
hand, if these proceedings are concerned with rights in
criminal law domain, then it can be said that the Single
Judge was exercising his ‘criminal jurisdiction’ while dealing
with such a petition filed under Article 226 of the Constitution.
(Para 19)
For this reason, we cannot agree with the extreme position
taken by the appellants that the exercise of powers under
Article 226 of the Constitution would never tantamount to
exercising criminal jurisdiction, irrespective of the nature of
proceedings. We, further, are of the opinion that if such a
petition relates to criminal proceedings while dealing with
this petition under Article 226 of the Constitution, the Court
would be exercising ‘‘criminal jurisdiction’’. In this context, it
would be relevant to refer to the judgment of the Supreme
Court in S.A.L. Narayan Row And Anr. vs Ishwarlal
Bhagwandas and Anr. [AIR 1965 SC 1818]. In that case,
proceedings were initiated under the Income Tax Act, 1922.
At the conclusion of proceedings before the High Court
under Article 226, a certificate for fitness was sought under
Article 131 (1)(c) read with Article 132(1) of the Constitution.
The question before the Apex Court was as to whether the
proceedings before the High Court under Article 226 are
‘‘civil proceedings’’. The Constitution Bench opined that
whether the proceedings are civil or not depends upon the
nature of the right violated and the appropriate relief which
may be claimed and not upon the nature of the Tribunal
which is invested with authority to grant relief. In the process,
following pertinent observations were made which are
apposite in our context:
‘‘A criminal proceeding on the other hand is ordinarily
one in which if carried to its conclusion it may result
in the imposition of sentences such as death,
imprisonment, fine or forfeiture of property.’’
The Court was, thus, categorical that even in a petition
under Article 226 of the Constitution when the High Court is
exercising extraordinary jurisdiction, the nature of
proceedings, whether civil or criminal, would depend upon
the nature of right violated and the nature of relief sought
in the said petition. (Para 20)
However a contrary view is taken by a Division Bench of the
Gujarat High Court in the case of Sanjeev Rajendrabhai
Bhatt Vs. State of Gujarat [1999 Cr.LJ 3388]. In that case,
the Gujarat High Court held that the Letters Patent Appeal
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705 706C.S. Agarwal v. State & Ors. (A.K. Sikri, J.)
[2000 (2) ALT 448].
5. Sanjeev Rajendrabhai Bhatt vs. State of Gujarat [1999
Cr.LJ 3388].
6. Harwinder Singh vs. Union of India [1994 (55) DLT
176].
7. Umaji Keshao Meshram and Otehrs vs. Smt. Radhikabai
and Another [AIR 1986 SC 1272].
8. Saroda Soonduree Dossee vs. Tincowree Nundee [1884]
Hyde’s Reports 70.
9. Ahmedabad Mfg. & Calico Ptg. Co. Ltd. vs. Ram Tahel
Ramnand & Ors. [1973] 1 S.C.R. 185).
10. State of Gujarat vs. Vakhatsinghji Vajesinghji Vaghela
A.I.R. 1968 S.C. 1487, 1488.
11. Arbind Kumar Singh vs. Nand Kishore Prasad & Ors.
[1968] 3 S.C.R. 322, 324.
12. Commissioner of Income-tax, Bombay and another
sIshwarlal Bhagwandas and others [1966] 1 S.C.R. 190,
197-8.
13. Ramesh and another vs. Seth Gendalal Motilal Patni and
others [1966] 3 S.C.R. 198, 203.
14. S.A.L. Narayan Row And Anr. vs. Ishwarlal Bhagwandas
and Anr. [AIR 1965 SC 1818].
15. State of Uttar Pradesh and Others vs. Dr. Vijay Anand
Maharaj [AIR 1963 SC 946].
16. Mahomedalli Allabux vs. Ismailji Abdulali, Raghunath
Keshav Khadilkar vs. Poona Muncipality and another,
Ryots of Garabandho and other villages vs. Zamindar of
Parlakimedi and another and Moulvi Hamid Hasan
Nomani vs. Banwarilal Roy and others L.R. [1946-47] 74
I.A. 120, 130-31; s.c.= A.I.R. 1947 P.C. 90, 98).
17. Venkataratnam vs. Secretary of State, ILR 53 Mad 979
: (AIR 1938 Mad 896).
RESULT: Appeals dismissed.
against such order is not maintainable. (Para 23)
Important Issue Involved: The proceedings seeking
quashing of FIR are ‘‘criminal proceedings’’ and while dealing
with such proceeding the High Court exercises its ‘‘criminal
jurisdiction’’. Hence against order in such proceeding, Letters
Patent Appeal is not maintainable.
[Vi Ba]
APPEARANCES:
FOR THE APPELLANT : Mr. Sandeep Sethi, Sr. Advocate,
Mr. Siddharth Luthra, Sr. Advocate,
Mr. Arvind Nigam, Sr. Advocate
with Ms. Ramjana Roy Gawai, Mr.
P.K. Dubey, Mr. Abhishek Kr. Rai,
Mr. Kunal Sood, Mr. Shailesh
Suman, Mr. Anurag Yadav, Mr.
Arshadeep Singh, Ms. Vasudha Sen,
Mr. Madhur Jain, Advocate in LPA
No. 819 of 2010. Mr. Sakal Bhushan,
with Mr. Sumit Gupta, Advocates in
LPA No. 825 of 2010.
FOR THE RESPONDENT : Mr. K.T.S. Tulsi, Sr. Advocate, Mr.
Ramesh Gupta, Sr. dvocate with Mr.
Rajinder Singh, Mr. Gaurav M.
Librahem, Mr. Lalit Choudhary
Advocates for the Respondent no. 3
Mr. Ranjit Kapoor, ASC for the State.
CASES REFERRED TO:
1. Dr. Rajni Patriwala vs. Dr. D. Mohan & Anr. [2009 (3)
JCC 1896].
2. State of Karnataka vs. Pastor P. Raju [2006 (6) SCC
782].
3. Adishwar Jain vs. Union of India [2006 Cri.LJ 3193].
4. Gangaram Kandaram vs. Sunder Chhkha Amin and Others
Indian Law Reports (Delhi) ILR (2011) VI Delhi
A.K. SIKRI, J.
1. C.S. Agarwal, the appellant in LPA No.819 of 2010, had filed
Writ Petition (Crl.) No.57 of 2010 invoking the jurisdiction of this Court
under Article 226 of the Constitution of India read with Section 482 of
the Code of Criminal Procedure seeking appropriate writ for quashing the
FIR No.264/2009 dated 23.12.2009 lodged against him and others by the
Economic Offences Wing, Crime and Railways, Delhi under Sections
420/406/120-B of the Indian Penal Code. The said writ petition has been
dismissed vide orders dated 11.11.2010 passed by the learned Single
Judge of this Court and against that order LPA No.819 of 2010 has been
preferred by C.S. Agarwal.
2. Another accused in the said FIR is D.K. Jain. He has also filed
LPA No.825 of 2010 challenging the same judgment, inter alia, on the
ground that some of the observations in the said orders are prejudicial to
him and therefore, he is also an aggrieved party. The respondents took
a primary objection to the maintainability of these LPAs contenting the
judgment of the learned Single Judge was passed in exercise of criminal
jurisdiction and a Letters Patent Appeal against such an order is clearly
barred by Clause 10 and Clause 18 of the Letters Patent Constituting the
High Court of Judicature at Lahore, which is application to the Judicature
of High Court of Delhi as well.
3. The Division Bench heard the matter on this aspect and vide
orders dated 14.01.2011 deemed it appropriate to refer the matter to the
Full Bench making following reference for consideration:
‘‘22. Accordingly, we make following reference for consideration
the Full Bench:
‘‘Whether the writ petition filed under Article 226 of the
Constitution of India read with Section 482 of the Code
of Criminal Procedure for quashing a FIR amount to
invoking ‘original jurisdiction’ or these proceedings are to
be treated as invoking ‘criminal jurisdiction?’’
4. This is how the matter came to be heard by this Bench and the
arguments were heard on the aforesaid reference. We may point out at
this stage itself that if the answer to the reference is that Shri C.A.
Agarwal, by means of the aforesaid W.P.(Crl.) NO.57 of 2010 had
invoked ‘‘original jurisdiction’’ the Letters Patent Appeal would be
competent. On the other hand, if those proceedings are to be treated as
invoking ‘‘criminal jurisdiction’’, then the consequence would be that
intra-Court appeal, by means of present Letters Patent Appeal is barred
by Clause 10 invoking Letters Patent Constituting the High Court of
Judicature at Lahore, which parties agree, is applicable to the High Court
of Delhi as well. The Division Bench while making the reference has
stinctly stated the factual matrix of the events which led C.S. Agarwal
to file the aforementioned writ petition. In order to understand the
arguments of both the parties, we are reproducing the facts as stated by
the Division Bench in its order dated 14.01.2011:
Mr. C. S. Aggarwal, director of M/S Rockman Projects Limited
(referred to as ‘RPL’), made a representation, for the purpose of securing
investment, to Mr. Sameer Kohli, director M/S Kohli Housing and
Development Pvt. Ltd. (in short KHPDL) that the RPL is intending to
develop one SEZ on 250 acres land, which is owned by the RPL, situated
on Delhi-Jaipur Highway at village Shidhrawali, Gurgaon, Haryana and
for this project the petitioner has received in-principal approval dated
22.08.2006 from the Government of India. On the basis of this
representation, after being got convinced by the petitioner that he has full
authority, supported by the Board resolution dated 14.05.2007, to enter
into commercial deals on behalf of RPL, respondent no. 3 agreed to buy
74% shares worth Rs. 185 crores in the Special purpose vehicle (SPL)
formed for this purpose. Respondent No. 3 was told that when the final
notification regarding SEZ will be received by the company, it will transfer
the land to the SPV. In pursuant to this agreement, one MoU dated 18th
June 2007 was signed and advance payment of Rs. 40 crores was made
by the respondent no. 3 on the condition that either this advance will be
refunded back to him or the land of 250 acres would be transferred in
favour of him in case the SEZ notification is not received by 31st
December 2008. This amount was to be utilized for the purpose of
consolidation and procurement of more land. Subsequently, an amount of
Rs. 3 crores was further given to the petitioner by respondent no.3 and
he entered into a Shareholder agreement and an FDI investor Xander
with RPL on 19th February 2008, which was to come into effect only
if the SEZ notification has been received by 31st December 2008. However
no notification could be received by RPL by 31st December 2008; instead
on the same day, Mr. D. K. Jain, the other director of RPL, issued a
C.S. Agarwal v. State & Ors. (A.K. Sikri, J.) 707 708
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public notice revoking all authority given to the petitioner to act on behalf
of RPL. In September 2009, the petitioner published a counter public
notice claiming thereby that RPL had 99 years lease agreement with D.
K. Jain’s land owing company for 250 acres of land and also had an
agreement to sell in his favour for the entire land.
After the expiration of the deadline of 31st December 2008,
respondent no. 3 demanded back his money but all of his efforts in this
direction went into vain. During the investigation, carried on by the
respondent on its own, he came to know that it was falsely represented
to him that RPL had 250 acres land and instead only 170 acres of land
was available. Even the authority, which issued approval letter, was
provided with wrong information on this account that the applicant fulfills
the criteria of having a minimum of 250 acres of land for the purpose
of development of SEZ. It was also revealed to the respondent no. 3 that
no such payment was made by the petitioner herein for the purpose of
purchasing more land as agreed between the parties in the MoU and
subsequently represented by the petitioner herein to the respondent no.
3. Under these circumstances, the respondent no. 3 filed a complaint
dated 12.10.2009 at Hauz Khas police station. He also lodged a similar
complaint dated 14.10.2009 with Dy. Commissioner of Police, Economic
Offences Wing Crime and Railways, Delhi, in pursuant to which a FIR
no.266/09 dated 23.12.2010 was registered against the appellant herein
under Sections 420/406/120-B of the Indian Penal Code.
The appellant Sh. C.S. Aggarwal, by way of W.P. (Crl.) No. 57 of
2010 filed under article 226 of the Indian Constitution r/w section 482
Cr.P.C. challenged the registration of the aforesaid FIR and sought
quashing of the same. However, Learned Single Judge of this High Court
found no merit in that petition and dismissed the same vide order dated
11.11.2010 on the ground that the investigation done by the EOW clearly
indicates that the petitioner had, from the very beginning, a dishonest
intention to cheat the respondent no.3. Feeling aggrieved by the dismissal
of his writ petition, the appellant Sh. C.S. Aggarwal has preferred the
Letter Patent Appeal under clause 10 of the Letter Patent Act of the
Punjab and Lahore High Court which is applicable to the Delhi High
Court. Sh. D.K. Jain has also filed LPA raising the grievance that even
when he was not a party to the writ proceedings, the learned Single
Judge had made observations prejudicial to his interest at his back.
5. Before we analyze the respective contentions it would be
appropriate to mention at the outset that the Delhi High Court was
constituted not by the Letters Patent but by the Delhi High Court Act,
1966 (in short ‘the DHC Act’). The counsels have proceeded on the
premise that the Letters Patent as applicable to the erstwhile Punjab and
Lahore High Courts are applicable to the Delhi High Court. Section 5 of
the DHC Act confers original jurisdiction to the Delhi High Court while
Section 10 thereof confers appellate jurisdiction. These provisions read
as follows:
‘‘5. Jurisdiction of High Court of Delhi. —
(1) The High Court of Delhi shall have, in respect of the territories
for the time being included in the Union territory of Delhi, all
such original, appellate and other jurisdiction as, under the law
in force immediately before the appointed day, is exercisable in
respect of the said territories by the High Court of Punjab. (2)
Notwithstanding anything contained in any law for the time being
in force, the High Court of Delhi shall also have in respect of the
said territories ordinary original civil jurisdiction in every suit the
value of which exceeds rupees twenty lakhs.
10. Powers of Judges. —
(1) Where a single Judge of the High Court of Delhi exercises
ordinary original civil jurisdiction conferred by sub-section (2) of
section 5 on that Court, an appeal shall lie from the judgment of
the single Judge to a Division Court of that High Court.
(2) Subject to the provisions of sub-section (1), the law in force
immediately before the appointed day relating to the powers of
the Chief Justice, single Judges and Division Courts of the High
Court of Punjab and with respect to all matters ancillary to the
exercise of those powers, shall, with the necessary modifications,
apply in relation to the High Court of Delhi.’’
6. In addition to the appeals that can be filed under section 10 of
the DHC Act, three more categories of appeals lie to this Court. Thus the
following four categories constitute appellate jurisdiction of the Delhi
High Court:
a. Firstly, appeals under Section 10 of the DHC Act but they
C.S. Agarwal v. State & Ors. (A.K. Sikri, J.)
Indian Law Reports (Delhi) ILR (2011) VI Delhi711 712
are limited only to those judgments referable to Section
5(2) thereof.
b. Secondly, appeals under the Code of Civil Procedure.
c. Thirdly, appeals under different statutes, which itself
provides for an appeal.
d. Fourthly, appeals under Clause 10 of the Letters Patent.
7. Here we are concerned only with the fourth category. Clause 10
of the Letters Patent reads as follows:
‘‘10. Appeals to the High Court from Judges of the Court
— And we do further ordain that an appeal shall lie to the said
High Court of Judicature at Lahore from the judgment (not being
a judgment passed in the exercise of appellate jurisdiction in
respect of a decree or order made in the exercise of appellate
jurisdiction by a Court subject to the Superintendence of the said
High Court, and not being an order made in the exercise of
revisional jurisdiction, and not being a sentence or order passed
or made in the exercise of the power of Superintendence under
the provisions of Section 107 of the Government of India Act,
or in the exercise of criminal jurisdiction) of one Judge of the
said High Court or one Judge of any Division Court, pursuant to
Section 108 of the Government of India Act, and that
notwithstanding anything hereinbefore provided an appeal shall
lie to the said High Court from a judgment of one Judge of the
said High Court or one Judge of any Division Court, pursuant of
Section 108 of the Government of India Act, made on or after
the first day of February, one thousand nine hundred and twenty-
nine in the exercise of appellate jurisdiction in respect of a decree
or order made in the exercise of appellate jurisdiction by a Court
subject to the superintendence of the said High Court where the
Judge who passed the judgment declares that the case is a fit
one for appeal; but that the right of appeal from other judgments
of Judges of the said High Court or of such Division Court shall
be to Us, Our heirs or Successors in our or their Privy Council,
as hereinafter provided.’’
8. This clause clearly prohibits maintainability of an intra-court
appeal if the impugned judgment is passed in exercise of:
1. Revisional Jurisdiction
2. The power of superintendence
3. Criminal Jurisdiction
9. Similarly, clause 18 of the same Letter Patent provides that no
appeal would lie from any sentence or order passed or made by the
courts of original jurisdiction.
10. Since reference was made to Clauses 15, 17 and 18, we deem
it proper to reproduce those Clauses as well:
‘‘15. Ordinary original criminal jurisdiction of the High Court
— And we do further ordain that the High Court of Judicature
at Lahore shall have ordinary original criminal jurisdiction in respect
of all such persons within the Provinces of the Punjab and Delhi
as the Chief Court of the Punjab had such criminal jurisdiction
over immediately before the publication of these present.
17. Extraordinary original criminal jurisdiction — And we
do further ordain that the High Court of Judicature at Lahore
shall have extraordinary original criminal jurisdiction over all
persons residing in places within the jurisdiction of any Court
subject to its Superintendence, and shall have authority to try at
its discretion any such persons brought before it on charges
preferred by any Magistrate or other officer specially empowered
by the Government in that behalf.
18. No appeal from High Court exercising original jurisdiction
Court may reserve points of law — And we do further ordain
that there shall be no appeal to the High Court of Judicature at
Lahore from any sentence or order passed or made by the Courts
of original criminal jurisdiction which may be constituted by one
or more Judges of the said High Court. But it shall be at the
discretion of any such Court to reserve any point or points of
law for the opinion of the said High Court.’’
11. Keeping in mind the aforesaid provision, we have to answer the
question as to whether the judgment passed by the learned Single Judge
in the writ petition filed by C.S. Agarwal was in exercise of ‘criminal
jurisdiction’.
C.S. Agarwal v. State & Ors. (A.K. Sikri, J.)
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12. As is clear from the reading of the Reference order of the
Division Bench (which was the position maintained before us as well),
the counsel for the parties on both the sides are at ad idem that when
a writ petition is filed originally in the jurisdiction of this Court, Letters
Patent Appeal is maintainable against the order passed by the learned
Single Judge in such a writ petition. The parties have, joined, issues on
the question as to whether writ petition filed for quashing the FIR should
be treated as invoking ‘criminal jurisdiction’ of the High Court.
13. On the aforesaid issue, arguments were advanced by Mr. Sandeep
Sethi, Mr. Siddharth Luthra and Mr. Arvind Nigam, learned Senior
Counsels appearing for the appellants. On behalf of the respondents Mr.
K.T.S. Tulsi and Mr. Ramesh Gupta, learned Senior Counsels put forth
their submissions which were supplemented by Mr. Gaurav M. Librahem.
Mr. Ranjit Kapoor, ASC appeared for the State, who also contested the
filing of LPA. We have given our thoughtful considerations to all these
submissions.
14. We are not reproducing, at this juncture, the arguments advanced
by the Counsels of both the sides. Instead, we would like to proceed
with our analysis of law and reasons in support of our view, viz., when
writ petition is filed seeking quashing of FIR, Letters Patent Appeal
would not be maintainable against the order passed by the learned Single
Judge in such a writ petition. However, we clarify that while giving our
analysis, we shall be touching upon each and every argument raised
before us.
15. Clause 10 of the Letters Patent Appeal, as pointed out above,
debars the filing of intra-court appeal against the order of the Single
Judge passed in exercise of revisional jurisdiction, the power of
superintendence and the criminal jurisdiction. Since we are concerned
with the case falling in the last category, the exact words used in Clause
10 in this behalf are ‘‘not being a sentence or order passed or made in
exercise of criminal jurisdiction of one Judge or the said High Court .....’’
The contention of the appellants is that the impugned order has to be a
sentence or order in exercise of criminal jurisdiction. It is argued that in
the present case, FIR is registered against the appellants under Section
154 of Code of Criminal Procedure. The matter is still at the stage of
investigation. No report/Challan is filed under Section 173 of the Code of
Criminal Procedure by the Investigating Agency so far. In the absence
of any such report/Challan under Section 173 of the Code of Criminal
Procedure, the Criminal Court of competent jurisdiction has yet to take
cognizance of the matter. At this stage itself, when the matter is still
under investigation, C.S. Agarwal felt aggrieved by the very act of
registration of FIR on the part of the Investigating Agency, i.e., Police
Authorities. It is for this reason, the prayer made in the writ petition is
to quash the FIR. Such a writ petition seeking quashing of the FIR when
the matter is still at the stage of investigation is permissible under Article
226 of the Constitution of India has held by the Apex Court in the case
of State of Haryana Vs. Bhajan Lal [1992 Supp. (1) SCC 335]. Of
course, the scope of such a jurisdiction is very limited and available only
in exceptional circumstances to prevent abuse of any Court of otherwise
secure the ends of justice. Some incidences of such kind of cases were
highlighted by the Supreme Court in the aforesaid judgments making it
clear that the said list was not exhaustive.
16. It was vehemently argued by the learned counsel appearing on
behalf of the appellant that when such a power is exercised by the High
Court whether under Section 482 of Code of Criminal Procedure or
under Article 226 of the Constitution of India and the registration of FIR
is quashed, it amounts to quashing of ‘criminal proceedings’ as the
consequence of registration of FIR is to initiate ‘criminal proceedings’.
According to the learned counsels, it is to be distinct from exercise of
‘criminal jurisdiction’ which expression occurs in Clause 10 of Letters
Patent Appeal. On this basis, argument was that the order passed in such
a petition is not in exercise of any ‘criminal jurisdiction’, but relates to
‘criminal proceedings’. Advancing this proposition, it was also argued
that the Letters Patent Appeal does not make any provision for writ
jurisdiction. It only provides for appeal under Clause 10 against certain
categories of orders. Insofar as proceedings under Article 226 are
concerned, the same are ‘original’ and ‘extraordinary’ in nature.
17. There cannot be any quarrel about the nature of proceedings
under Article 226 of the Constitution. In the case of State of Uttar
Pradesh and Others Vs. Dr. Vijay Anand Maharaj [AIR 1963 SC
946], the Constitution Bench of the Apex Court had the occasion to
explain the nature of proceedings under Article 226 of the Constitution.
That was a case where an assessment order was passed under the U.P.
713 714C.S. Agarwal v. State & Ors. (A.K. Sikri, J.)
Indian Law Reports (Delhi) ILR (2011) VI Delhi
Agricultural Income Tax Act 1948 (3 of 1949). Those assessments which
were without jurisdiction were validated by U.P. Act 14 of 1956 giving,
at the same time, right to the assessee to review orders made under U.P.
Act, 1956. The assessment order made by the Additional Collector under
the U.P. Act 3 of 1949 by challenging the writ petition under Article 226
of the Constitution and the learned Single Judge of the Allahabad High
Court had set aside the order on the ground that the assessment was
without jurisdiction. As pointed out above, all such assessments were
validated by the U.P. Act 14 of 1956 with retrospective effect. Since the
power to review was given, an application for review made to the Single
Judge who had passed an order under Article 226 of the Constitution
was filed which was dismissed on the ground that the U.P. Act 14 of
1956 did not apply to orders under Article 226. The Letters Patent Appeal
against this order was taken to a Division Bench, which was dismissed,
inter alia, on the ground that order dismissing review application was not
a ‘judgment’ within the meaning of High Court Rules and therefore, was
not appellable. Challenging this order of the Division Bench, State of U.P.
had approached the Supreme Court. In the aforesaid backdrop, the question
arose about the nature of proceedings and the scope of jurisdiction under
Article 226 of the Constitution. The Constitution Bench explained the
nature of proceedings under Article 226 in the following manner:
‘‘Article 226 confers a power on a High Court to issue the writs,
orders, or directions mentioned therein for the enforcement of
any of the rights conferred by Part III or for any other purpose.
This is neither an appellate nor a revisional jurisdiction of the
High Court. Though the power is not confined to the prerogative
writs issued by the English Courts, it is modeled on the said
writs mainly to enable the High Courts to keep the subordinate
tribunals within bounds. Before the Constitution, the chartered
High Court, that is, the High Courts at Bombay, Calcutta and
Mad- ras, were issuing prerogative writs similar to those issued
by the King’s Bench Division, subject to the same limitations
imposed on the said. writs. In Venkataratnam v. Secretary of
State, ILR 53 Mad 979 : (AIR 1938 Mad 896), a division Bench
of the Madras High Court, consisting of Venkatasubba Rao and
Madhavan Nair, JJ,; held that the jurisdiction to issue a writ of
certiorari was original jurisdiction. In Ryots of Garabandha v.
The Zamindar of Parlakimedi (1), another division Bench of
the same High Court, consisting of Leach, C. J., and Madhavan
Nair J., considered the question again incidentally and came to
the same conclusion “and held that a writ of certiorari is issued
only in exercise of the original jurisdiction of the High Court. In
Ramayya v. State of Madras (2), a division Bench, consisting
of Govinda Menon and Ramaswami Oounder, JJ,, considered
the question whether the proceedings under Art. 226 of the
Constitution are in exercise of the original Jurisdiction or revisional
jurisdiction of the High Court, and the learned Judges held that
the power to issue writs under Art. 226 of the Constitution is
original and the jurisdiction exercised is original jurisdiction. In
Moulvi Hamid Hassan Nomani v. Banwarilal Boy (3), the
Privy Council was considering the question whether the original
civil jurisdiction which the Supreme Court of Calcutta possessed
over certain classes of persons outside the territorial limits of
that jurisdiction has been inherited by the High Court. In that
context the Judicial Committee observed:
‘‘It cannot be disputed that the issue of such writs is
a matter of original jurisdiction”.
The Calcutta. High Court, in Budge Budge Municipality v.
Mangru, 57 Cal WN 25 : (AIR 1953 Cal. 433) (SB), came to
the same conclusion, namely, that the jurisdiction exercised under
Art. 226 of the Constitution is original as distinguished from
appellate or revisional jurisdiction; but the High Court pointed out
that the jurisdiction, though original, is a special jurisdiction and
should not be confused with ordinary civil jurisdiction under the
Letters Patent. The Andhra High Court in Satyanarayanamurthi
v. 1. T. Appellate Tribunal (1) described it as an extraordinary
original jurisdiction. It is, therefore, clear from the nature of
the power conferred under Art. 226 of the Constitution and
the decisions on the subject that the High Court in exercise
of its power under Art. 226 of the Constitution exercises
original jurisdiction, though the said jurisdiction shall not
be confused with the ordinary civil jurisdiction of the High
Court. This jurisdiction, though original in character as contrasted
with its appellate and revisional jurisdictions, is exercisable
throughout the territories in relation to which it exercises
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jurisdiction and may for convenience, be described as
extraordinary original jurisdiction. If that be so, it cannot be
contended that a petition under Art. 226 of the Constitution is a
continuation of the proceedings under the Act.’’
(emphasis supplied)
18. This position was reiterated by the Supreme Court in the case
of Umaji Keshao Meshram and Otehrs Vs. Smt. Radhikabai and
Another [AIR 1986 SC 1272] taking stock of the gamut of case law
including the aforesaid Constitution Bench Judgment. The Court explained
that even prior to the commencement of the Constitution, Chartered High
Courts were possessed with the power to issue prerogative writs, though
in a much restricted form. The provisions in the nature of Articles 226,
227 and 228 were incorporated in the Constitution with an intention to
confer the enlarged power upon all the High Courts and not merely three
Chartered High Courts. In the process, certain significant observations
were made explaining the scope of Letters Patent Appeal dealing with the
provisions of the Letters Patent of Calcutta High Court. We would like
to reproduce the same:
‘‘............These several jurisdictions were conferred upon the
High Courts by different clauses of the Letters Patent. Clause
14, however, specifically provided for an intra-court appeal only
from judgments “in all cases of original civil jurisdiction”. The
marginal note to clause 14 was “Appeal from the Courts of
original jurisdiction to the High Court in its appellate jurisdiction”.
Jurisdictions other than ordinary and extra- ordinary civil
jurisdictions were conferred by clauses which followed clause
14. For this reason, it was doubted at one time whether an intra-
court appeal would lie from the judgment of one Judge in the
exercise of original testamentary jurisdiction but in the case of
Saroda Soonduree Dossee v. Tincowree Nundee [1884] Hyde’s
Reports 70, a Division Bench of three Judges of the Calcutta
High Court by a majority held that such an appeal would lie. The
Letters Patent of 1865 followed the pattern of the Letters Patent
of 1862. Clause 15 forms part of a group of clauses consisting
of clauses 11 to 18 headed “Civil Jurisdiction of the High Court”.
Clause 12 deals with original jurisdiction as to suits and clause
13 with extra- ordinary original civil jurisdiction while clause 14
deals with joinder of several causes of action. Though the marginal
note to clause 15 was the same as that to the old clause 14, a
most material change was made in clause 15 by providing that
intra-court appeals would lie “from the judgment (not being a
sentence or order passed or made in any criminal trial) of one
Judge of the said High Court, or of one Judge of any Division
Court.” The word “judgment” in clause 15 is not qualified in any
way as to the jurisdiction in which it is given except that it
should not be a sentence or order passed or made in any criminal
trial, thus excluding judgments given in the exercise of criminal
jurisdiction. Criminal jurisdiction is provided for in clauses 22 to
29.......
xxx xxx xxx
98. From what has been said above it must follow that when a
Single Judge of a Chartered High Court decides a petition under
Articles 226 or 227, his judgment is one given pursuant to Article
225 of the Constitution and is appealable under clause 15 of the
Letters Patent unless it falls within one of the excluded categories.
99. According to the Full Bench even were clause 15 to apply,
an appeal would be barred by the express words of clause 15
because the nature of the jurisdiction under Article 226 and 227
is the same inasmuch as it consists of granting the same relief,
namely, scrutiny of records and control of subordinate courts
and tribunals and, therefore, the exercise of jurisdiction under
these Articles would be covered by the expression “revisional
jurisdiction” and “power of superintendence”. We are afraid, the
Full Bench has misunderstood this scope and effect of the powers
conferred by these Articles. These two Articles stand on an
entirely different footing. As made abundantly clear in the earlier
part of this judgment, their source and origin are different and
the models upon which they are patterned are also different.
Under Article 226 the High Courts have power to issue directions,
orders and writs to any person or authority including any
Government. Under Article 227 every High Court has the power
of superintendence over all courts and tribunals throughout the
territory in relation to which it exercises jurisdiction. The power
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Indian Law Reports (Delhi) ILR (2011) VI Delhi
to issue writs is not the same as the power of superintendence.
By no stretch of imagination can a writ in the nature of habeas
corpus or mandamus or quo warranto or prohibition or certiorari
be equated with the power of superintendence. These are writs
which are directed against persons, authorities and the State.
The power of superintendence conferred upon every High Court
by Article 227 is a supervisory jurisdiction intended to ensure
that subordinate courts and tribunals act within the limits of their
authority and according to law (see State of Gujarat v.
Vakhatsinghji Vajesinghji Vaghela A.I.R. 1968 S.C. 1487,
1488, and Ahmedabad Mfg. & Calico Ptg. Co. Ltd. v. Ram
Tahel Ramanand & Ors.). The orders, directions and writs
under Article 226 are not intended for this purpose and the
power of superintendence conferred upon the High Courts by
Article 227 is in addition to that conferred upon the High Courts
by Article 226. Though at the first blush it may seem that a writ
of certiorari or a writ of prohibition partakes of the nature of
superintendence inasmuch as at times the end result is the same,
the nature of the power to issue these writs is different from the
supervisory or superintending power under Article 227. The
powers conferred by Articles 226 and 227 are separate and
distinct and operate in different fields. The fact that the same
result can at times be achieved by two different processes does
not mean that these processes are the same.
100. Under Article 226 an order, direction or writ is to issue to
a person, authority or the State. In a proceeding under that
Article the person, authority or State against whom the direction,
order or writ is sought is a necessary party. Under Article 227,
however, what comes up before the High Court is the order or
judgment of a subordinate court or tribunal for the purpose of
ascertaining whether in giving such judgment or order that
subordinate court or tribunal has acted within its authority and
according to law. Prior to the commencement of the Constitution,
the Chartered High Courts as also the Judicial Committee had
held that the power to issue prerogative writs possessed by the
Chartered High Courts was an exercise of original jurisdiction
(see Mahomedalli Allabux v. Ismailji Abdulali, Raghunath
Keshav Khadilkar v. Poona Muncipality and another, Ryots
of Garabandho and other villages v. Zamindar of Parlakimedi
and another and Moulvi Hamid Hasan Nomani v. Banwarilal
Roy and others L.R. [1946-47] 74 I.A. 120, 130-31; s.c.=
A.I.R. 1947 P.C. 90, 98). In the last mentioned case which dealt
with the nature of a writ of quo warranto, the Judicial Committee
held:
“In their Lordships’ opinion any original civil jurisdiction
possessed by the High Court and not in express terms
conferred by the Letters Patent or later enactments falls
within the description of ordinary original civil jurisdiction.”
By Article 226 the power of issuing prerogative writs possessed
by the Chartered High Courts prior to the commencement of the
Constitution has been made wider and more extensive and
conferred upon every High Court. The nature of the exercise of
the power under Article 226, however, remains the same as in
the case of the power of issuing prerogative writs possessed by
the Chartered High Courts. A series of decisions of this Court
has firmly established that a proceeding under Article 226
is an original proceeding and when it concerns civil rights,
it is an original civil proceeding (see, for instance, State of
Uttar Pradesh v. Dr. Vijay Anand Maharaj [1963] 1 S.C.R.
1, 16, Commissioner of Income-tax, Bombay and another v.
Ishwarlal Bhagwandas and others [1966] 1 S.C.R. 190, 197-
8, Ramesh and another v. Seth Gendalal Motilal Patni and
others [1966] 3 S.C.R. 198, 203, Arbind Kumar Singh v.
Nand Kishore Prasad & Ors. [1968] 3 S.C.R. 322, 324 and
Ahmedabad Mfg. & Calico Ptg. Co. Ltd. v. Ram Tahel
Ramnand & Ors. [1973] 1 S.C.R. 185).’’
(Emphasis supplied)
19. No doubt, as per the aforesaid pronouncements explaining the
nature of power conferred under Article 226 of the Constitution, the High
court in such proceedings exercises original jurisdiction. At the same
time, it is also clarified that the said jurisdiction is not to be confused
with the ‘‘original civil jurisdiction’’ of the High Court. Further, proceedings
under Article 226 of the Constitution would be treated as original civil
proceedings only when it concerns civil rights. A fortiori, if it concerns
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a criminal matter, then such proceedings would be original criminal
proceedings. Letters Patent would lie when the Single Judge decides the
writ petition in proceedings concerning civil rights. On the other hand,
if these proceedings are concerned with rights in criminal law domain,
then it can be said that the Single Judge was exercising his ‘criminal
jurisdiction’ while dealing with such a petition filed under Article 226 of
the Constitution.
20. For this reason, we cannot agree with the extreme position
taken by the appellants that the exercise of powers under Article 226 of
the Constitution would never tantamount to exercising criminal jurisdiction,
irrespective of the nature of proceedings. We, further, are of the opinion
that if such a petition relates to criminal proceedings while dealing with
this petition under Article 226 of the Constitution, the Court would be
exercising ‘‘criminal jurisdiction’’. In this context, it would be relevant
to refer to the judgment of the Supreme Court in S.A.L. Narayan Row
And Anr. vs. Ishwarlal Bhagwandas and Anr. [AIR 1965 SC 1818].
In that case, proceedings were initiated under the Income Tax Act, 1922.
At the conclusion of proceedings before the High Court under Article
226, a certificate for fitness was sought under Article 131 (1)(c) read
with Article 132(1) of the Constitution. The question before the Apex
Court was as to whether the proceedings before the High Court under
Article 226 are ‘‘civil proceedings’’. The Constitution Bench opined that
whether the proceedings are civil or not depends upon the nature of the
right violated and the appropriate relief which may be claimed and not
upon the nature of the Tribunal which is invested with authority to grant
relief. In the process, following pertinent observations were made which
are apposite in our context:
‘‘A criminal proceeding on the other hand is ordinarily one in
which if carried to its conclusion it may result in the imposition
of sentences such as death, imprisonment, fine or forfeiture of
property.’’
The Court was, thus, categorical that even in a petition under Article 226
of the Constitution when the High Court is exercising extraordinary
jurisdiction, the nature of proceedings, whether civil or criminal, would
depend upon the nature of right violated and the nature of relief sought
in the said petition.
21. We are conscious of the judgment of the Full Bench of the
Andhra High Court in the case of Gangaram Kandaram Vs. Sunder
Chhkha Amin and Others [2000 (2) ALT 448]. It specifically held that
exercise for powers under Article 226 of the Constitution of India by
issuing a writ in quashing the FIR is not an exercise under ‘criminal
jurisdiction’. Following discussion in this behalf from the said judgment
is extracted below:
‘‘14. With regard to the second question as to whether the
appeal under Clause 15 of Letters Patent of the Court lies against
the judgment in such a case. In other words, whether the
proceedings for quashing of the investigation in a criminal case
under Article 226 of the Constitution is a civil proceeding and the
judgment as above is judgment in a civil proceeding in exercise
of the original jurisdiction of the Court for the purpose of appeal
under Clause 15 of Letters Patent.
15. As per Clause 15 of Letters Patent, no appeal shall lie against
the judgment of one Judge of the said High Court or one Judge
of any Division Bench passed in exercise of appellate jurisdiction
in respect of decree or order made in exercise of appellate
jurisdiction by a Court subject to the superintendence of the said
High Court and not being an order made in exercise of the
revisional jurisdiction and not being a sentence or order passed
or made in exercise of power of superintendence of Section 107
of Government of India Act or in exercise of criminal jurisdiction.
An appeal shall lie to the Division Bench under Clause 15 of
Letters Patent from the judgment of one Judge of the High Court
or one Judge of any Division Bench. The appeal from judgments
of single Judges of the High Court shall lie to the Division Bench
except the judgments prohibited by Clause 15. The learned single
Judge while exercising the extraordinary jurisdiction under Article
226 quashed the criminal proceedings. In our view, the exercise
powers under Article 226 of the Constitution by issuing a writ
in quashing the FIR is not in exercise of criminal jurisdiction. No
doubt against the order under Section 482 of Cr.PC or against
the proceedings under Contempt of Court, no appeal will lie
under Clause 15 of Letters Patent, but against the judgments
721 722C.S. Agarwal v. State & Ors. (A.K. Sikri, J.)
Indian Law Reports (Delhi) ILR (2011) VI Delhi
quashing the FIR is in exercise of the original jurisdiction of the
Court under Article 226, writ appeal lies under Clause 15 of
Letters Patent. Issuing a writ of mandamus or certiorari by the
High Court under Article 226 pertaining to a criminal complaint
or proceeding cannot be said to be an order passed in exercise
of the criminal jurisdiction. Therefore, we hold that an appeal lies
under Clause 15 of Letters Patent.’’
22. The appellants have placed strong reliance on the aforesaid
judgments to buttress his submission that while exercising powers under
Article 226 of the Constitution, the learned Single Judge was not exercising
‘‘criminal jurisdiction’’.
23. However a contrary view is taken by a Division Bench of the
Gujarat High Court in the case of Sanjeev Rajendrabhai Bhatt Vs.
State of Gujarat [1999 Cr.LJ 3388]. In that case, the Gujarat High
Court held that the Letters Patent Appeal against such order is not
maintainable.
24. In identical circumstances, where the learned Single Judge had
dismissed the petition filed under Article 226 of the Constitution seeking
quashing of the FIR registered under various provisions of the Indian
Penal Code and NDPS Act, albeit, on the ground of want of territorial
jurisdiction, LPA was preferred by the writ petitioner (accused in the said
FIR). The maintainability of letters patent appeal was challenged. The
Division Bench proceeded to examine the issue of maintainability in the
light of two questions: first, whether an order passed by the Single Judge
could be said to have been made in exercise of extraordinary powers
under Article 226 of the Constitution or it was an exercise of supervisory
jurisdiction under Article 227 of the Constitution and second, whether the
order passed by the learned Single Judge was the exercise of criminal
jurisdiction within the meaning of Clause 15 of the Letters Patent.
25. While dealing with the first question, the Division Bench examined
the nature of scope and ambit of Article 226 as well as Article 227 of
the Constitution in the light of various pronouncements of the Supreme
Court. However, no final opinion was expressed on this question. In any
case, we are also not concerned with this aspect. Moreover, we have
proceeded on the basis that C.S. Agarwal had filed petition under Article
226 of the Constitution and the scope of that petition has already been
examined above.
26. The Division Bench examined the second question is depth and
opined that the order passed by the learned Single Judge was in exercise
of ‘criminal jurisdiction’ as referred in Clause 15 of Letters Patent and
therefore, LPA was not maintainable.
27. Referring to the judgment of the Constitution Bench in S.A.L.
Narayan Row And Anr. (supra), describing the nature of criminal
proceedings, the Division Bench of Gujarat High Court treated such
proceedings in exercise of criminal jurisdiction giving the following rationale:
‘‘80. In our considered opinion, in the instant case, the
proceedings can be said to be criminal proceedings inasmuch as,
carried to its conclusion, they may result into imprisonment, fine
etc. as observed by the Supreme Court in Narayana Row. 81.
From the totality of facts and circumstances, we have no hesitation
in holding mat the learned single Judge has passed an order in
exercise of criminal jurisdiction. At the cost of repetition, we
reiterate what we have already stated earlier that the proceedings
were of a criminal nature. Whether a criminal Court takes
cognizance of an offence or sends a complaint for investigation
under Sub-section (3) of Section 156 of the Code of Criminal
Procedure, 1973 does not make difference so far as the nature
of proceedings is concerned. Even if cognizance is not taken,
that fact would not take out the case from the purview of
criminal jurisdiction.
82. In our judgment, a proceeding under Article 226 of the
Constitution arising from an order passed or made by a Court in
exercise or purported exercise of power under the Code of
Criminal Procedure is still a ‘criminal proceeding’ within the
meaning of Clause 15 of the Letters Patent. A proceeding seeking
to avoid the consequences of a criminal proceeding initiated under
the Code of Criminal Procedure will continue to remain ‘criminal
proceeding’ covered by the bracketed portion of Clause 15 of
the Letters Patent. 83. As Clause 15 of the Letters Patent expressly
bars an appeal against the order passed by a single Judge of the
High Court in exercise of criminal jurisdiction, LPAs are not
maintainable and deserve to be dismissed only on that ground.
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We accordingly hold that the Letters Patent Appeals are not
maintainable at law and they are liable to be dismissed.’’
28. Respectfully agreeing with the aforesaid view, we express our
inability to subscribe to the view taken by the Full Bench of the Andhra
Pradesh High Court.
29. It would be necessary to clarify here that it cannot be said that
in any of the cases under Article 226 of the Constitution, the Court is
exercising ‘criminal jurisdiction’. It would depend upon the rights sought
to be enforced and the nature of relief which the petitioner seeks in such
proceedings. For example, if a writ petition seeking writ of habeas corpus
is filed, while dealing with such a petition, the Court is not exercising
criminal jurisdiction as no criminal proceedings are pending. In fact, the
order of preventive detention is made without any trial under the criminal
law. Likewise, when a person is convicted and sentenced after the
conclusion of criminal trial and such an order of conviction has attained
finality and he files writ petition under Article 226 of the Constitution
challenging the orders of the Government refusing to grant parole while
dealing with such a petition, the Single Judge is not exercising criminal
jurisdiction, as no criminal proceedings are pending.
30. Likewise, the proceedings under Income Tax Act filed under
Article 226 will not involve criminal jurisdiction. The judgment of the
Supreme Court in the case of Dr. Vijay Anand Maharaj (supra)
demonstrates this. The case arose out of assessment of income tax
which was challenged by way of writ petition under Article 226 of the
Constitution of India. The said proceedings were held by the Constitutional
Bench to be ‘‘original special jurisdiction’’ or ‘‘extraordinary original
jurisdiction’’ and cannot be confused with ‘‘ordinary civil jurisdiction’’.
31. For this reason, we are of the opinion that the Division Bench
judgment of this Court in the case of Harwinder Singh Vs. Union of
India [1994 (55) DLT 176] which dealt with habeas corpus petition is
of no assistance to decide the controversy before us. Likewise, the
judgment of Punjab and Haryana High Court in the case of Adishwar
Jain Vs. Union of India [2006 Cri.LJ 3193] holding LPA to be
maintainable is also not relevant. Again, that was a case of preventive
detention.
32. The test, thus, is whether criminal proceedings are pending or
not and the petition under Article 226 of the Constitution is preferred
concerning those criminal proceedings which could result in conviction
and order of sentence.
33. When viewed from this angle, it is clear that if the FIR is not
quashed, it may lead to filing of Challan by the investigating agency;
framing of charge; and can result in conviction of order of sentence.
Writ of this nature filed under Article 226 of the Constitution. Seeking
quashing of such an FIR would therefore be ‘‘criminal proceedings’’ and
while dealing with such proceedings, the High Court exercises its ‘‘criminal
jurisdiction’’.
34. It would be pertinent to point out that insofar as the present
case is concerned, this view of ours becomes more formidable when we
peruse the nature of challenge that was laid by the appellant C.S. Agarwal
in the writ petition seeking quashing of the FIR. This petition was filed
under Article 226 of the Constitution read with Section 482 of the Code
of Criminal Procedure. We are conscious of the judgment of the Supreme
Court in the case of State of Karnataka Vs. Pastor P. Raju [2006 (6)
SCC 782] holding that power to quash an FIR is only under Article 226
of the Constitution and not under Section 482 of Code of Criminal
Procedure. At the same time, one has also to keep in mind the limited
grounds on which challenge can be predicated by filing writ petition
under Article 226 of the Constitution to which proceedings are still at the
stage of investigation after registration of FIR [State of Haryana Vs.
Bhajan Lal (supra)].
35. We would also like to point out the judgment of the Supreme
Court in the case of MMTC Vs. Commissioner of Commercial Tax
[2009 (1) SCC 8] and that of the judgment of the Madhya Pradesh High
Court in the case of Dr. Jaidev Siddha Vs. Jaiprakash Siddha [2007
(3) MPLJ 595].
36. In the case of MMTC (supra), the Supreme Court held that for
determining the real character of the impugned order, the Court may look
at the basic averments invoking the jurisdiction.
37. In Dr. Jaidev Siddha Vs. Jaiprakash Siddha (supra), the
High Court followed the said principle observing as under:
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Indian Law Reports (Delhi) ILR (2011) VI Delhi
‘‘17. From the aforesaid enunciation of law it is quite vivid and
luminiscent that the pleadings in the writ petition, nature of the
order passed by the learned Single Judge, character and the
contour of the order, directions issued, nomenclature given, the
jurisdictional prospective in the constitutional context are to be
perceived. It cannot be said in a hyper technical manner that an
order passed in a writ petition, if there is assail to the order
emerging from the Inferior Tribunal or Subordinate Courts has
to be treated all the time for all purposes to be under Article 227
of the Constitution of India. Phraseology used in exercise of
original jurisdiction under Article 226 of the Constitution in Section
2 of the Act cannot be given a restricted and constricted meaning
because an order passed in a writ petition can tantamount to an
order under Article 226 or 227 of the Constitution of India and
it would depend upon the real nature of the order passed by the
learned Single Judge. To elaborate; whether the learned Single
Judge has exercised his jurisdiction under Article 226 or under
Article 227 or both would depend upon various aspects and
many a facet as has been emphasized in the aforequoted decisions
of the Apex Court. The pleadings, as has been indicated
hereinabove, also assume immense significance. As has been
held in the case of Surya Dev Rai (supra), a writ of certiorari
can be issued under Article 226 of the Constitution against an
order of a Tribunal or an order passed by the Subordinate Court.
In quintessentially, it cannot be put in a straitjacket formula that
any order of the learned Single Judge that deals with an order
arising from an Inferior Tribunal or the Subordinate Court is an
order under Article 227 of the Constitution of India and not an
order under Article 226 of the Constitution. It would not be an
overemphasis to state that an order in a writ petition can fit into
the subtle contour of Articles 226 and 227 of the Constitution in
a composite manner and they can co-inside, co- exit, overlap or
imbricate. In this context it is apt to note that there may be cases
where the learned Single Judge may feel disposed or inclined to
issue a writ to do full and complete justice because it is to be
borne in mind that Article 226 of the Constitution is fundamentally
a repository and reservoir of justice based on equity and good
conscience. It will depend upon factual matrix of the case.’’
38. Keeping in mind the aforesaid considerations, let us scan through
the averments by C.S. Agarwarl in his writ petition. The FIR in question
lodged by the respondent No.3 alleges cheating and misappropriation on
the part of the appellants. In the first para of the writ petition, it is alleged
that the Economic Offences Wing, Delhi has registered the FIR in a mala
fide and illegal manner when the Court of Metropolitan Magistrate, Patiala
House Courts, New Delhi was seized of the matter wherein the Police
officials itself had filed a status report/action taken report concluding that
the transaction between the parties is of civil nature. The petitioner has
also impugned order dated 14.01.2010 passed by the Court of Shri
Ravinder Singh, M.M., in CC No.264/2009 alleging that the learned Judge
has adopted illegal procedure in violation of directions given by this Court
in the matter of Dr. Rajni Patriwala Vs. Dr. D. Mohan & Anr. [2009
(3) JCC 1896]. Thus, in any case, a part of the writ petition relates to
quashing the order passed by the learned Metropolitan Magistrate in the
criminal proceedings. Even other relief seeking quashing of the FIR is
primarily on the ground that it is a civil matter and therefore, Economic
Offences Wing should not have registered the FIR and registration of
such an FIR is colourable exercise of power. In support of this plea, it
was argued that essential ingredients of the offence in respect of various
provisions under which FIR was registered were not made out. The
perusal of the order of the learned Single Judge would reflect that the
entire matter was argued from criminal law perspective with regard to
illegality of investigation entered upon by the Police on registration of
FIR. The learned Single Judge has gone into the allegations made in the
FIR on the basis of which it is prima facie concluded that those allegations,
if found correct, would constitute the offence of cheating and
misappropriation. We are not commenting upon the correctness or
otherwise of the order passed by the learned Single Judge. What we
emphasize is that this would clearly show that the entire matter is looked
into from the criminal law perspective and while dealing with the matter
the learned Single Judge was exercising ‘criminal jurisdiction’.
39. We find force in the submission of Mr. Tulsi, learned Senior
Counsel for the respondent that the decision of the Constitutional Bench
of the Supreme Court in the case of I.S.A.L. Rao (supra) cited by the
learned Senior Counsel for the petitioner does not support his contention
in any way. All that is held in the said judgment by the Supreme Court
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is that the proceeding for the recovery of tax and interest was a civil
proceeding. It was further clarified in para 8 of the said judgment that
the character of proceeding does not depend on the nature of Tribunal
but on the nature of right violated. Enforcement of civil right and seeking
quashing of investigation of criminal offences punishable under penal
statute are totally different.
40. We are, thus, of the considered opinion that the learned Single
Judge was exercising criminal jurisdiction while dealing with the writ
petition of C.S. Agarwal filed under Article 226 of the Constitution. As
a consequence, the LPAs are barred and not maintainable. Accordingly,
we dismiss these appeals with costs.
ILR (2011) VI DELHI 729
WP (C)
M/S STERLING AGRO INDUSTRIES LTD. ....PETITIONER
VERSUS
UNION OF INDIA & ORS. ....RESPONDENTS
(DIPAK MISRA, CJ. VIKRAMAJIT SEN, A.K. SIKRI,
SANJIV KHANNA & MANMOHAN, JJJJ.)
WP (C) NO. : 6570/2010, DATE OF DECISION: 01.08.2011
8399/2009, 2447/2010,
2448/2010 & 6953/2010
Constitution of India, 1950—Article 226—Petitioner
industry is situated at Industrial area Q-5-6, Ghirongi,
Distt. Bhind, Malanpur in the State of Madhya Pradesh—
Assistant Commissioner of Custom, ICD, Malanpur
ordered that no draw-back facility is admissible to the
petition as it had by way of procuring duty free inputs
under Rule 19 (2) of the Central Excise Rules, 2002,
contravened clause (ii) of the second proviso to Rule
3 (1) of the Central Excise Drawback Rules, 1995 and
also condition No. 7 (F) of the notification No. 68/2007-
Cus (NT) and condition No. 8 (F) of the notification No.
103/2008-Cus (NT)—Petitioner preferred revision—
Revision dismissed by Revisionary Authority,
Government of India, Ministry of Finance, Department
of Revenue—Petitioner challenged the legal
substantiality and sustainability of the order dated
09.07.2010 passed by Revisionary Authority—Division
Bench referred the matter for reconsideration by Full
Bench doubting the correctness and soundness of
the decision in New India Assurance Company Limited
v. Union of India and others, AIR 2010 Delhi 43 (FB)—
Full Bench thought it appropriate that the matter
should be considered by a larger Bench—Larger Bench
constituted and matter was placed before the Larger
Bench—Controversy is pertaining to the jurisdiction
of Hon’ble High Court of Delhi in these writ petitions
under Article 226—Held—The principle of forum
conveniens in its ambit and sweep encapsulates the
concept that a cause of action arising within the
jurisdiction of the Court would not itself constitute to
be the determining factor compelling the Court to
entertain the matter—While exercising jurisdiction
under Articles 226 and 227 of the Constitution of India,
the Court cannot be totally oblivious of the concept of
forum conveniens—The Full Bench in New India
Assurance Co. Ltd. (supra) has not kept in view the
concept of forum conveniens and has expressed the
view that if the appellate authority who has passed
the order is situated in Delhi, then the Delhi High
Court should be treated as the forum conveniens—
Findings and conclusions of the Full Bench in New
India Assurance Company Limited (supra) Modified and
conclusions in seriatim Stated as follows : (a) The
finding recorded by the Full Bench that the sole
cause of action emerges at the place or location
729 730Sterling Agro Industries Ltd. v. Union of India (Dipak Misra, CJ.)
Indian Law Reports (Delhi) ILR (2011) VI Delhi
where the tribunal/appellate authority/revisional
authority is situate and the said High Court i.e., Delhi
High Court cannot decline to entertain the writ petition
as that would amount to failure of the duty of the
Court, cannot be accepted inasmuch as such a finding
is totally based on the situs of the Tribunal/Appellate
Authority/Revisional Authority totally ignoring the
concept of forum conveniens (b) Even if a miniscule
part of cause of action arises within the jurisdiction of
this court, a writ petition would be maintainable before
this Court; however, the cause of action has to be
understood as per the ratio laid down in the case of
Alchemist Ltd. (c) An order of the Appellate authority
constitutes a part of cause of action to make the writ
petition maintainable in the High Court within whose
jurisdiction the appellate authority is situated—Yet,
the same may not be the singular factor to compel the
High Court to decide the matter on merits—The High
Court may refuse to exercise its discretionary
jurisdiction by invoking the doctrine of forum
conveniens. (d) The conclusion that where the
appellate or revisional authority is located constitutes
the place of forum conveniens as stated in absolute
terms by the Full Bench is not correct as it will vary
from case to case and depend upon the lis in
question—(e) The finding that the court may refuse to
exercise jurisdiction under Article 226 if only the
jurisdiction is invoked in a malafide manner is too
restricted/constricted as the exercise of power under
Article 226 being discretionary, cannot be limited or
restricted to the ground of malafide alone—(f) While
entertaining a writ petition, the doctrine of forum
conveniens and the nature of cause of action are
required to be scrutinized by the High Court depending
upon the factual matrix of each case in view of what
has been stated in Ambica Industries (supra) and Adani
Exports Ltd. (supra)—(g) The conclusion of the earlier
decision of the Full Bench in New India Assurance
Company Limited (supra) ‘‘that since the original order
merges into the appellate order, the place where the
appellate authority is located is also forum conveniens’’
is not correct—(h) Any decision of this Court contrary
to the conclusions enumerated hereinabove stands
overruled—Ex consequenti, reference answered by
partially overruling and clarifying the decision in New
India Assurance company Limited (supra) in the above
terms. Matters directed to be listed before the
appropriate Division Bench for appropriate
consideration.
The principle of forum conveniens in its ambit and sweep
encapsulates the concept that a cause of action arising
within the jurisdiction of the Court would not itself constitute
to be the determining factor compelling the Court to entertain
the matter. While exercising jurisdiction under Articles 226
and 227 of the Constitution of India, the Court cannot be
totally oblivious of the concept of forum conveniens. The
Full Bench in New India Assurance Co. Ltd. (supra) has
not kept in view the concept of forum conveniens and has
expressed the view that if the appellate authority who has
passed the order is situated in Delhi, then the Delhi High
Court should be treated as the forum conveniens. We are
unable to subscribe to the said view. (Para 32)
In view of the aforesaid analysis, we are inclined to modify
the findings and conclusions of the Full Bench in New India
Assurance Company Limited (supra) and proceed to
state our conclusions in seriatim as follows:
(a) The finding recorded by the Full Bench that the
sole cause of action emerges at the place or location
where the tribunal/appellate authority/revisional
authority is situate and the said High Court (i.e., Delhi
High Court) cannot decline to entertain the writ petition
as that would amount to failure of the duty of the
Court cannot be accepted inasmuch as such a finding
is totally based on the situs of the tribunal/appellate
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authority/revisional authority totally ignoring the concept
of forum conveniens.
(b) Even if a miniscule part of cause of action arises
within the jurisdiction of this court, a writ petition would
be maintainable before this Court, however, the cause
of action has to be understood as per the ratio laid
down in the case of Alchemist Ltd. (supra).
(c) An order of the appellate authority constitutes a
part of cause of action to make the writ petition
maintainable in the High Court within whose jurisdiction
the appellate authority is situated. Yet, the same may
not be the singular factor to compel the High Court to
decide the matter on merits. The High Court may
refuse to exercise its discretionary jurisdiction by
invoking the doctrine of forum conveniens.
(d) The conclusion that where the appellate or revisional
authority is located constitutes the place of forum
conveniens as stated in absolute terms by the Full
Bench is not correct as it will vary from case to case
and depend upon the lis in question.
(e) The finding that the court may refuse to exercise
jurisdiction under Article 226 if only the jurisdiction is
invoked in a malafide manner is too restricted /
constricted as the exercise of power under Article 226
being discretionary cannot be limited or restricted to
the ground of malafide alone.
(f) While entertaining a writ petition, the doctrine of
forum conveniens and the nature of cause of action
are required to be scrutinized by the High Court
depending upon the factual matrix of each case in
view of what has been stated in Ambica Industries
(supra) and Adani Exports Ltd. (supra).
(g) The conclusion of the earlier decision of the Full
Bench in New India Assurance Company Limited
(supra) ‘‘that since the original order merges into the
appellate order, the place where the appellate authority
is located is also forum conveniens’’ is not correct.
(h) Any decision of this Court contrary to the
conclusions enumerated hereinabove stands
overruled. (Para 33)
Ex consequenti, we answer the reference by partially
overruling and clarifying the decision in New India
Assurance Company Limited (supra) in the above terms.
Matters be listed before the appropriate Division Bench for
appropriate consideration. (Para 34)
Important Issue Involved: The doctrine of forum
conveniens and nature of cause of cause is to be scrutinized
by High Court for exercising jurisdiction under Article 226
of Constitution of India, 1950.
[Vi Ba]
APPEARANCES:
FOR THE PETITIONER : Mr. M.P. Devnath with Mr. Manish
Panda, Mr. Abhishek Anand and Mr.
Tarun Jain, Advocates Mr. Atul
Nanda, Amicus Curiae Mr. Sanjay
Parikh with Mr. Ritwick Dutta and
Mr. Rahul Choudhary Advocates Mr.
R. Santhanam with Mr. A.P. Sinha,
Advocates Mr. A.S. Chandhiok, ASJ
with Mr. Sandeep Bajaj, Mr. G.S.
Parwanda, Ms. Riya Kaul, Ms. Neha
Rastogi, Advocates for UOI.
FOR THE RESPONDENTS : Mr. A.S. Chandhiok, ASG with Ms.
Sonia Sharma and Ms. Sandeep Bajaj,
Advocates for UOI. Mr. A.S.
Chandhiok, ASG with Mr. Mukesh
Anand with Mr. Shailesh Tiwari, Mr.
733 734Sterling Agro Industries Ltd. v. Union of India (Dipak Misra, CJ.)
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Sumit Batra & Mr. R.C.S. Bhadoria,
Mr. Jayendra Advocates for R-2 &
R-3. Mr. D.K. Sharma, Advocate for
R-1 Ms. Yogmaya Agnihotri,
Advocate for R-2. Mr. Ashwani
Mata, Sr. Advocate with Mr. Rishi
Agrawala, Mr. Akshay Ringe and Ms.
Kanika Agnihotri, Ms. Misha
Rohtagi, Mr. Vaibhav Agnihotri,
Advocates for R-3. Mr. A.S.
Chandhiok, ASG with Mr. Sandeep
Bajaj, Mr. G.S. Parwanda, Ms. Riya
Kaul, Ms. Neha Rastogi, Advocates
for UOI. Mr. A.S. Chandhiok, ASJ
with Mr. Sandeep Bajaj, Mr. G.S.
Parwanda, Ms. Riya Kaul, Ms. Neha
Rastogi, Advocates for UOI. Mr.
A.S. Chandhiok, ASG with Mr.
Mukesh Anand with Mr. Shailesh
Tiwari, Mr. Sumit Batra & Mr.
R.C.S. Bhadoria, Mr. Jayendra
Advocates Department of Central
Excise.
CASES REFERRED TO:
1. India Assurance Company Limited vs. Union of India
and others, AIR 2010 Delhi 43 (FB).
2. Rajendran Chingaravelu vs. R.K. Mishra, (2010) 1 SCC
457.
3. Rajkumar Shivhare vs. Assistant Director of Enforcement,
Mumbai 154 (2008) DLT 28.
4. West Coast Ingots (P) Ltd. vs. Commissioner of Central
Excise, New Delhi, 2007 (209) ELT 343 (Del).
5. Ambica Industries vs. Commissioner of Central Excise,
2007 (213) ELT 323(SC).
6. Alchemist Ltd. and Anr. vs. State Bank of Sikkim and
ors., (2007) 11 SCC 335.
7. Bombay Snuff (P) Ltd. vs. Union of India, 2006 (194)
ELT 264 (Del).
8. Mayar (H.K.) Ltd. vs. Owners & Parties, Vessel M.V.
Fortune Express, (2006) 3 SCC 100: (2006) 2 Scale 30
9. Mosaraf Hossain Khan vs. Bhagheeratha Engg. Ltd. &
Ors., (2006) 3 SCC 658.
10. National Textile Corporation Ltd. vs. Haribox Swalram,
(2004) 9 SCC 786 : JT (2004) 4 SC 508.
11. Kusum Ingots & Alloys Ltd. vs. Union of India, (2004)
6 SCC 254 : JT (2004) Supp 1 SC 475.
12. Kishore Rungta and ors. vs. Punjab National Bank and
ors., 2003 (151) ELT 502 (Bom).
13. Union of India vs. Adani Exports Ltd., (2002) 1 SCC
567.
14. Sita Ram Singhania vs. Bank of Tokyo-Mitsubishi Ltd.
and ors, AIR 2000 SC 2180.
15. Navinchandra N. Majithia vs. State of Maharashtra, AIR
2000 SC 2966.
16. CBI. Anti-Corruption Branch vs. Narayan Diwakar, (1999)
4 SCC 656.
17. Bharat Coking Coal Limited vs. Jharia Talkies & Cold
Storage (P) Ltd., 1997 CWN 122.
18. Oil and Natural Gas Commission vs. Utpal Kumar Basu
and others, (1994) 4 SCC 711.
19. ONGC vs. Utpal Kumar Basu, (1994) 4 SCC 711 : JT
(1994) 6 SC 1.
20. S.S. Jain & Co. vs. Union of India, (1994) 1 CHN 445.
21. New Horizon Ltd. vs. Union of India, AIR 1994 Del 126.
22. Aligarh Muslim University vs. Vinay Engg. Enterprises
(P) Ltd., (1994) 4 SCC 710.
23. Indian Institute of Technology vs. P.C. Jain and Ors., 45
(1991) DLT42.
24. A.B.C. Laminart (P) Ltd. vs. A.P. Agencies, AIR 1989
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SC 1239.
25. State of Rajasthan vs. Swaika Properties, AIR 1985 SC
1289.
26. Union of India vs. Oswal Woollen Mills Ltd., (1984) 2
SCC 646.
27. Sri Nasiruddin vs. State Transport Appellate Tribunal,
(1975) 2 SCC 671.
28. Damomal Kausomal Raisinghani vs. Union of India, AIR
1967 Bom 355.
29. Collector of Customs, Calcutta vs. East India Commercial
Co. Ltd., Calcutta and others, AIR 1963 SC 1124.
30. Ltd. Col. Khajoor Singh vs. Union of India, AIR 1961
SC 532.
31. K.S. Rashid and Son vs. The Income Tax Investigation
Commission etc., AIR 1954 SC 207.
32. Election Commission India vs. Saka Venkata Rao, AIR
1953 SC 210.
33. Madanlal Jalan vs. Madanlal, AIR 1949 Cal 495.
34. Bhagat Singh Bugga vs. Dewan Jagbir Sawhany, AIR
1941 Cal 670.
35. Chand Kour vs. Partab Singh ILR (1889) 16 Cal 98, 102.
36. Chand Kour vs. Partab Singh ILR (1887-88) 15 IA 156.
RESULT: Writ petitions disposed of.
DIPAK MISRA, CJ.
1. In view of the similitude of the principal controversy pertaining
to the jurisdiction of the High Court of Delhi being involved in these writ
petitions, they were heard analogously and as the said issue is the only
question of reference, it is being adverted to and dealt with by a singular
order. For the sake of convenience, we shall adumbrate the facts in
W.P.(C) No.6570/2010.
2. Expressing doubt with regard to the correctness and soundness
of the decision in New India Assurance Company Limited v. Union
of India and others, AIR 2010 Delhi 43 (FB), a Division Bench thought
it appropriate to refer the matter for reconsideration by a Full Bench and,
accordingly, a Full Bench was constituted and the Full Bench thought it
appropriate that the matter should be considered by a larger Bench and,
accordingly, the larger Bench has been constituted and the matter has
been placed before us for the aforesaid purpose.
3. Before we proceed to analyze and appreciate the ratio decidendi
in New India Assurance Company Limited (supra), it is seemly to
exposit the necessitous primary facts averred in the present writ petition.
The petitioner, in invocation of the jurisdiction under Article 226 of the
Constitution of India, has called in question the legal substantiality and
sustainability of the order No.214-15/10-Cus dated 9.7.2010, Annexure-
1, passed by the Revisionary Authority, Government of India, Ministry
of Finance, Department of Revenue, whereby the revision application
preferred by the petitioner has been dismissed concurring with the view
expressed by the Commissioner (Appeal-I), Customs & Central Excise,
Indore whereby the appellate authority has given the stamp of approval
to the order passed by the Assistant Commissioner of Customs ICD,
Malanpur who had expressed the view that no drawback facility is
admissible to the petitioner as it had, by way of procuring duty free
inputs under Rule 19(2) of the Central Excise Rules, 2002, contravened
clause (ii) of the second proviso to Rule 3(1) of the Central Excise
Drawback Rules, 1995 and also condition No.7(F) of the notification
No.68/2007-Cus (NT) and condition No.8(F) of the notification No.103/
2008-Cus (NT).
4. It is the admitted position that the petitioner – industry is situate
at Industrial Area, Q-5-6, Ghirongi, Dist. — Bhind, Malanpur in the State
of Madhya Pradesh. The initial order was passed on 30.5.2009 by the
Assistant Commissioner of Customs ICD, Malanpur, Dist. Bhind (M.P.).
The appellate order was passed by the Commissioner (Appeals)-I, Customs
and Central Excise & Service Tax at Indore (M.P.).
5. Being dissatisfied with the order passed by the revisional authority,
the petitioner has invoked the inherent jurisdiction of this Court under
Article 226 of the Constitution of India solely on the foundation that the
revisional authority, namely, the office of the Joint Secretary to the
Government of India, is in Delhi and, therefore, this Court has the
territorial jurisdiction to deal with the lis in question. It is proponed in the
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petition that it is the Joint Secretary who is answerable to justify his
order and, ergo, this Court can and should dwell upon the controversy.
In the grounds enumerated in the writ petition, reliance has been placed
on the decision rendered in New India Assurance Company Limited
(supra).
6. We have heard the learned counsel for the parties and Mr.Atul
Nanda, learned senior counsel as the Amicus Curiae.
7. At this juncture, we think it apposite to refer to the history of
Article 226 of the Constitution of India. Initially, Article 226 of the
Constitution of India read thus:
‘‘226. (1) Notwithstanding anything in Article 32, every High
Court shall have power, throughout the territories in relation to
which it exercises jurisdiction, to issue to any person or authority,
including in appropriate cases any Government, within those
territories directions, orders or writs, including writs in the nature
of habeas corpus, mandamus, prohibition, quo warranto and
certiorari, or any of them, for the enforcement of any of the
rights conferred by Part III and for any other purpose.
(2) The power conferred on a High Court by clause (1) shall not
be in derogation of the power conferred on the Supreme Court
by clause (2) of Article 32.’’
8. On the basis of the aforesaid constitutional provision, a strict
construction was placed and the plea of cause of action or forum
conveniens was not given acceptance by the Apex Court in Election
Commission India v. Saka Venkata Rao, AIR 1953 SC 210. Their
Lordships opined in the said case as follows:
‘‘The rule that cause of action attracts jurisdiction in suits is
based on statutory enactment and cannot apply to writs issuable
under Article 226 which makes no reference to any cause of
action or where it arises but insists on the presence of the
person or authority ‘‘within the territories’’ in relation to which
the High Court exercises jurisdiction.’’
9. In Ltd. Col. Khajoor Singh v. Union of India, AIR 1961 SC
532, a Division Bench of Jammu and Kashmir High Court had upheld the
preliminary objections raised before it and had held that it had no
jurisdiction to issue a writ against the Union of India and to arrive at the
said conclusion, the High Court had placed reliance on the decisions in
Saka Venkata Rao (supra) and K.S. Rashid and Son v. The Income
Tax Investigation Commission etc., AIR 1954 SC 207. It was contended
before the Apex Court that the aforesaid two decisions were distinguishable
from the factual matrix therein inasmuch as in the earlier cases, the
Election Commission and the Income Tax Investigation Commission were
statutory bodies which have their location in Delhi and, therefore, the
view was expressed in that manner. The majority posed two questions,
namely, (i) whether the Government of India as such can be said to have
a location in a particular place, that is, New Delhi, irrespective of the fact
that its authority extends over all the States and its officers function
throughout India; and (ii) whether there is any scope for introducing the
concept of cause of action as the basis for exercise of jurisdiction under
Article 226. Their Lordships, while dealing with the first aspect, opined
thus:
‘‘It would, therefore, in our opinion be wrong to introduce in
Article 226 the concept of the place where the order passed has
effect in order to determine the jurisdiction of the High Court
which can give relief under Article 226. The introduction of
such a concept may give rise to confusion and conflict of
jurisdiction.’’
10. Thereafter, it has been held as follows:
‘‘There can, therefore, be no escape from the conclusion that
these words in Article 226 refer not to the place where the
Government may be functioning but only to the place where the
person or authority is either resident or is located. So far therefore
as a natural person is concerned, he is within those territories if
he resides there permanently or temporarily. So far as an authority
(other than a Government) is concerned, it is within the territories
if its office is located there. So far as a Government is concerned
it is within the territories only if its seat is within those territories.’’
11. Their Lordships then answered the second question in the
following terms:
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‘‘16. Article 226 as it stands does not refer anywhere to the
accrual of cause of action and to the jurisdiction of the High
Court depending on the place where the cause of action accrues
being within its territorial jurisdiction. Proceedings under Article
226 are not suits; they provide for extraordinary remedies by a
special procedure and give powers of correction to the High
Court over persons and authorities and these special powers
have to be exercised within the limits set for them. These two
limitations have already been indicated by us above and one of
them is that the person or authority concerned must be within
the territories over which the High Court exercises jurisdiction.
Is it possible then to overlook this constitutional limitation and
say that the High Court can issue a writ against a person or
authority even though it may not be within its territories simply
because the cause of action has arisen within those territories?
It seems to us that it would be going in the face of the express
provision in Art. 226 and doing away with an express limitation
contained therein if the concept of cause of action were to be
introduced in it. Nor do we think that it is right to say that
because Art. 300 specifically provides for suits by and against
the Government of India, the proceedings under Art. 226 are
also covered by Art. 300. It seems to us that Art. 300 which is
on the same line as S.176 of the Government of India Act, 1935,
dealt with suits as such and proceedings analogous to or
consequent upon suits and has no reference to the extraordinary
remedies provided by Art. 226 of the Constitution. The concept
of cause of action cannot in our opinion be introduced in Art.
226, for by doing so we shall be doing away with the express
provision contained therein which requires that the person or
authority to whom the writ is to be issued should be resident in
or located within the territories over which the High Court has
jurisdiction. It is true that this may result in some inconvenience
to person residing far away from New Delhi who are aggrieved
by some order of the Government of India as such, and that may
be a reason for making a suitable constitutional amendment in
Art. 226.’’
12. After the said decision came into the field, the Parliament brought
the 15th Amendment and inserted Clause (1A) in the Constitution by the
15th Amendment Act, 1963. Clause (1A) read as follows:
‘‘(1A) The power conferred by clause (1) to issue directions,
orders or writs to any Government, authority or person may also
be exercised by any High Court exercising jurisdiction in relation
to the territories within which the cause of action, wholly or in
part, arises for the exercise of such power, notwithstanding that
the seat of such Government or authority or the residence of
such person is not within those territories.’’
13. By the 42nd constitutional amendment, Clause (1A) was
renumbered as Clause (2) and in the present incarnation, it reads as
follows:
‘‘(2) The power conferred by clause (1) to issue directions,
orders or writs to any Government, authority or person may also
be exercised by any High Court exercising jurisdiction in relation
to the territories within which the cause of action, wholly or in
part, arises for the exercise of such power, notwithstanding that
the seat of such Government or authority or the residence of
such person is not within those territories.’’
14. From the aforesaid chronological narration of the growth of
Article 226 of the Constitution, the concept of cause of action arising
wholly or in part came into existence for the exercise of power under
the said Article.
15. Regard being had to the aforesaid historical backdrop, we shall
presently proceed to deal with the Full Bench decision in New India
Assurance Company Limited (supra) to perceive how it has dealt with
the concept of jurisdiction in the context of the conception of cause of
action and the appreciation of the ratio of various citations by the Full
Bench referred to by it. It is worth noting that the matter travelled to the
Full Bench by reference made by the Division Bench while hearing a
letters patent appeal from an order of the single Judge who had dismissed
the writ petition summarily on the ground that significant part of the
cause of action could not have been said to have arisen within the
territorial jurisdiction of this Court and merely because the order under
challenge had been passed by the appellate authority located within the
territorial jurisdiction, the same could not be sufficient enough for
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main contention is of possibility of conflict. We do not find any
merit in this contention of the counsel for the contesting
respondent. First, that is not the case in hand. The contesting
respondent is not aggrieved by the order of the appellate authority
and has not assailed the same before any High Court. Thus,
there is no possibility of conflicting judgments or confusion in
the present case. Secondly, even if in a given case such a situation
were to arise, the same is bound to be brought to the notice of
the court and the likelihood of both courts proceeding with the
writ petition and conflicting judgments is remote. In such a
situation, following the principle in Section 10 of the Code of
Civil Procedure, the subsequently filed petition may be stayed in
view of the earlier petition entailing similar questions or the court
may ask the petitioner to approach the High Court where the
earlier petition has been filed. In our opinion, it will be inappropriate
to refuse to exercise jurisdiction merely on the basis of possibility
of conflict of judgments, particularly in view of the clear language
of Article 226(2).
30. Having held that this Court has jurisdiction, it cannot be said
that only an insignificant or miniscule part of the cause of action
has accrued within the jurisdiction of this Court or that the
substantial cause of action has accrued within the jurisdiction of
the High Court of Andhra Pradesh. In fact, the sole cause of
action for the writ petition is the order of the appellate authority
and which cause of action has accrued entirely within the
jurisdiction of this Court and this Court would be failing in its
duty/function if declined to entertain the writ petition on the
ground of the contesting respondent being situated within the
jurisdiction of the High Court of Andhra Pradesh. Though the
petition has been filed under Article 226 of the Constitution, it
cannot be lost sight of that jurisdiction in such cases under
Article 226 is overlapping with Article 227. Article 227 is clear
in this regard. The power of superintendence over Tribunals is
vested in the High Court within whose jurisdiction the Tribunal
is situated. In that light of the matter also, it cannot be said that
only insignificant or miniscule part of the cause of action has
accrued within the jurisdiction of this Court. The appellate
authority in the present case having passed the order which is
743 744Sterling Agro Industries Ltd. v. Union of India (Dipak Misra, CJ.)
conferment of jurisdiction. The learned single Judge, to arrive at the said
conclusion, had placed reliance on the decisions in Ambica Industries
v. Commissioner of Central Excise, 2007 (213) ELT 323(SC), Bombay
Snuff (P) Ltd. v. Union of India, 2006 (194) ELT 264 (Del), Rajkumar
Shivhare v. Assistant Director of Enforcement, Mumbai 154 (2008)
DLT 28 and West Coast Ingots (P) Ltd. v. Commissioner of Central
Excise, New Delhi, 2007 (209) ELT 343 (Del). The Full Bench referred
to the arguments canvassed at the Bar, took note of the legislative history
of Article 226 of the Constitution of India and referred to the decisions
of the Apex Court in Collector of Customs, Calcutta v. East India
Commercial Co. Ltd., Calcutta and others, AIR 1963 SC 1124, Kusum
Ingots & Alloys Ltd. v. Union of India, (2004) 6 SCC 254, Sri
Nasiruddin v. State Transport Appellate Tribunal, (1975) 2 SCC 671
and Navinchandra N. Majithia v. State of Maharashtra, AIR 2000 SC
2966, the decision of the High Court of Bombay in Kishore Rungta and
ors. v. Punjab National Bank and ors., 2003 (151) ELT 502 (Bom)
and the decision of the High Court of Delhi in Indian Institute of
Technology v. P.C. Jain and Ors., 45 (1991) DLT42 and eventually
held thus:
‘‘29. As held in Nasiruddin’s case, even where part of the cause
of action arose, it would be open to the litigant, who is the
dominus litis to have his forum conveniens. In the present case,
since the Appellate Authority is situated at New Delhi, the Delhi
High Court has the jurisdiction under Article 226 of the
Constitution of India and, therefore, there was no occasion for
the learned single Judge to apply the principle of forum conveniens
to refuse to exercise the jurisdiction. The principle of forum
nonconveniens originated as a principle of international law,
concerned with Comity of Nations. A domestic court in which
jurisdiction is vested by law otherwise ought not to refuse exercise
of jurisdiction for the reason that under the same law some other
courts also have jurisdiction. However, the remedy under Article
226 being discretionary, the court may refuse to exercise
jurisdiction when jurisdiction has been invoked mala fide. There
is no such suggestion in the present case. Nothing has been
urged that it is inconvenient to the contesting respondent to
contest the writ before this Court. The counsel for the contesting
respondent has not disputed the jurisdiction of this Court; his
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impugned in the petition, being situated within the jurisdiction of
this Court, even if the cause of action doctrine were to be
invoked, substantial part of the cause of action has accrued
within the jurisdiction of this Court only. Even the language of
the impugned order giving rise to the cause of action in the writ
petition, discloses significant cause of action to have accrued
within the jurisdiction of this Court. This Court while deciding
this writ petition is not required to issue any direction, order or
writ to any person outside its jurisdiction. Section 110H of the
Insurance Act provides for appeal to the Central Government,
seat whereof is admittedly within the jurisdiction of this Court.
CONCLUSION
31. For the foregoing reasons, we hold that where an order is
passed by an appellate authority or a revisional authority, a part
of cause of (sic action) arises at that place. When the original
authority is situated at one place and the appellate authority is
situated at another, a writ petition would be maintainable at both
the places. As the order of appellate authority constitutes a part
of cause of action, a writ petition would be maintainable in the
High Court within whose jurisdiction it is situate having regard
to the fact that the petitioner is dominus litis to choose his
forum, and that since the original order merges into the appellate
order, the place where the appellate authority is located is also
forum conveniens.’’
[Emphasis added]
16. On a nuanced scrutiny of the decision of the Full Bench, it is
clear as day that it has expressed the view which can be culled out in
seriatim as follows:
(i) Once the Court comes to hold that it has jurisdiction, the
plea that only an insignificant or miniscule part of the
cause of action has accrued within the jurisdiction of the
Court or that the substantial cause of action has accrued
in another State is inconsequential.
(ii) The ‘‘sole’’ cause of action emerges when an order by
the appellate authority situated within the territorial
jurisdiction of Delhi is passed and when the ‘‘sole’’ cause
of action accrues entirely within the jurisdiction of this
Court, declining to entertain the writ petition would amount
to failure of duty of the Court.
(iii) This Court has jurisdiction under Article 227 since it has
the power of superintendence over tribunals situated within
its jurisdiction and judged in that light, it cannot be said
that only an insignificant or miniscule part of the cause of
action has accrued within the jurisdiction of this Court.
(iv) Even if the doctrine of cause of action is adopted or
invoked, the substantial part of the cause of action arises
because the order under assail is that of the appellate
authority / tribunal which is situated in Delhi.
(v) As the original order merges into the appellate order, the
place where the appellate authority is located is also the
forum conveniens.
(vi) The remedy under Article 226 being discretionary, the
Court may refuse to exercise jurisdiction only when
jurisdiction has been invoked with malafide intent.
Be it noted, the Full Bench had also observed that as the appellate
authority is situate at New Delhi, the Delhi High Court has the jurisdiction
under Article 226 of the Constitution of India and, therefore, there was
no occasion for the learned Single Judge to apply the principle of forum
conveniens to refuse exercise of jurisdiction.
17. Presently, we shall proceed to advert to the authorities that have
been referred to and relied upon by the Full Bench for the simon pure
reason that understanding of the principles exposited therein would enable
us to appreciate the enunciation of the law by the Full Bench and also
refer to certain authorities that have been cited before us.
18. In the case of Sri Nasiruddin (supra), it has been held thus:
‘‘...the expression “cause of action” in an application under Article
226 would be as the expression is understood and if the cause
of action arose because of the appellate order or the revisional
order which came to be passed at Lucknow then Lucknow
would have jurisdiction though the original order was passed at
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Indian Law Reports (Delhi) ILR (2011) VI Delhi
a place outside the areas in Oudh. It may be that the original
order was in favour of the person applying for a writ. In such
case an adverse appellate order might be the cause of action.
The expression “cause of action” is well-known. If the cause of
action arises wholly or in part at a place within the specified
Oudh areas, the Lucknow Bench will have jurisdiction. If the
cause of action arises wholly within the specified Oudh areas, it
is indisputable that the Lucknow Bench would have exclusive
jurisdiction in such a matter. If the cause of action arises in part
within the specified areas in Oudh it would be open to the litigant
who is the dominus litis to have his forum conveniens. The
litigant has the right to go to a Court where part of his cause of
action arises. In such cases, it is incorrect to say that the litigant
chooses any particular Court. The choice is by reason of the
jurisdiction of the Court being attracted by part of cause of
action arising within the jurisdiction of the Court...’’
19. In Kishore Rungta and ors. (supra), a writ petition was filed
challenging the order passed by the Debt Recovery Appellate Tribunal,
Mumbai dismissing an order of the Debt Recovery Appellate Tribunal,
Jaipur. A preliminary objection was raised regarding the jurisdiction of
the High Court of Bombay. The Division Bench of the High Court of
Bombay referred to the decisions in East India Commercial Co. Ltd.,
Calcutta and others (supra), Damomal Kausomal Raisinghani v.
Union of India, AIR 1967 Bom 355, Navinchandra N. Majithia (supra)
and Sita Ram Singhania v. Bank of Tokyo-Mitsubishi Ltd. and ors,
AIR 2000 SC 2180 and came to opine thus:
‘‘16. Mr. Tulzapurkar lastly submitted that a part of the cause
of action having arisen in Mumbai, this Court has jurisdiction to
entertain the Petition in view of Article 226(2) of the Constitution.
We are in agreement with Mr. Tulzapurkar. The 15th amendment
to the Constitution which introduced clause 2 in Article 226 was
intended to widen the ambit of the area for reaching the writs
issued by the High Court. Clause 2 of Article 226 is as under:
‘‘(2) The power conferred by clause (1) to issue directions,
orders or writs to any Government authority or person
may also be exercised by any High Court exercising
jurisdiction in relation to the territories within which the
cause, of action, wholly or in part, arises for the exercise
of such power, notwithstanding that the seat of such
Government or authority or the residence of such person
is not within those territories.’’
In this connection Mr. Tulzapurkar relied upon the judgment of
the Supreme Court in the case of Navinchandra N. Majithia v.
State of Maharashtra, The Supreme Court held that the power
conferred on the High Courts under Article 226 could as well be
exercised by any High Court exercising Jurisdiction in relation to
the territories within which the cause of action, wholly or in part
arises and it is no matter that the seat of the Authority concerned
is outside the territorial limits of the jurisdiction of that High
Court. The Supreme Court further held that the amendment was
aimed at widening the width of the area for reaching the writs
issued by different High Courts. The Supreme Court also held
that the words “cause of action wholly or in part arises” seem
to have been lifted from Section 20 of the Code of Civil
Procedure, which section also deals with the jurisdictional aspect
of the Courts.’’
20. In Alchemist Ltd. and Anr. v. State Bank of Sikkim and
ors., (2007) 11 SCC 335, after referring to the decisions in A.B.C.
Laminart (P) Ltd. v. A.P. Agencies, AIR 1989 SC 1239, Union of
India v. Oswal Woollen Mills Ltd., (1984) 2 SCC 646, State of
Rajasthan v. Swaika Properties, AIR 1985 SC 1289, Oil and Natural
Gas Commission v. Utpal Kumar Basu and others, (1994) 4 SCC
711, CBI, Anti-Corruption Branch v. Narayan Diwakar, (1999) 4
SCC 656, Union of India v. Adani Exports Ltd., (2002) 1 SCC 567,
Kusum Ingots & Alloys Ltd. (supra) and National Textile Corpn.
Ltd. v. Haribox Swalram, (2004) 9 SCC 786, the Supreme Court
expressed the view as follows:
‘‘34. In Kusum Ingots & Alloys Ltd. v. Union of India,
(2004) 6 SCC 254 : JT (2004) Supp 1 SC 475, the appellant was
a Company registered under the Companies Act having its head
office at Mumbai. It obtained a loan from the Bhopal Branch of
the State Bank of India. The Bank issued a notice for repayment
of loan from Bhopal under the Securitisation and Reconstruction
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of Financial Assets and Enforcement of Security Interest Act,
2002. The appellant Company filed a writ petition in the High
Court of Delhi which was dismissed on the ground of lack of
territorial jurisdiction. The Company approached this Court and
contended that as the constitutionality of a parliamentary legislation
was questioned, the High Court of Delhi had the requisite
jurisdiction to entertain the writ petition.
35. Negativing the contention and upholding the order passed by
the High Court, this Court ruled that passing of a legislation by
itself does not confer any such right to file a writ petition in any
Court unless a cause of action arises therefor. The Court stated:
(Kusum Ingots case, SCC p. 261, para 20)
‘‘20. A distinction between a legislation and executive
action should be borne in mind while determining the said
question”.
Referring to ONGC v. Utpal Kumar Basu, (1994) 4 SCC 711
: JT (1994) 6 SC 1, it was held that all necessary facts must
form an ‘‘integral part’’ of the cause of action. The fact which
is neither material nor essential nor integral part of the cause of
action would not constitute a part of cause of action within the
meaning of Clause (2) of Article 226 of the Constitution.
36. In National Textile Corporation Ltd. v. Haribox Swalram,
(2004) 9 SCC 786 : JT (2004) 4 SC 508, referring to earlier
cases, this Court stated that: (SCC p. 797, para 12.1)
‘‘12.1 ...the mere fact that the writ petitioner carries on
business at Calcutta or that the reply to the correspondence
made by it was received at Calcutta is not an integral part
of the cause of action and, therefore, the Calcutta High
Court had no jurisdiction to entertain the writ petition and
the view to the contrary taken by the Division Bench
cannot be sustained.’’
37. From the aforesaid discussion and keeping in view the ratio
laid down in a catena of decisions by this Court, it is clear that
for the purpose of deciding whether facts averred by the appellant-
petitioner would or would not constitute a part of cause of
749 750Sterling Agro Industries Ltd. v. Union of India (Dipak Misra, CJ.)
action, one has to consider whether such fact constitutes a
material, essential, or integral part of the cause of action. It is
no doubt true that even if a small fraction of the cause of action
arises within the jurisdiction of the court, the court would have
territorial jurisdiction to entertain the suit/petition. Nevertheless it
must be a ‘‘part of cause of action’’, nothing less than that.
38. In the present case, the facts which have been pleaded by
the Appellant Company, in our judgment, cannot be said to be
essential, integral or material facts so as to constitute a part of
‘‘cause of action’’ within the meaning of Article 226(2) of the
Constitution. The High Court, in our opinion, therefore, was not
wrong in dismissing the petition.’’ [Emphasis added]
21. In Utpal Kumar Basu and others (supra), a three-Judge Bench
of the Apex Court, while dealing with the territorial jurisdiction in the
backdrop of Article 226(2), has opined thus:
‘‘5. Clause (1) of Article 226 begins with a non-obstante clause-
notwithstanding anything in Article 32 - and provides that every
High Court shall have power ‘‘throughout the territories in relation
to which it exercises jurisdiction’’, to issue to any person or
authority, including in appropriate cases, any Government, ‘‘within
those territories’’ directions, orders or writs, for the enforcement
of any of the rights conferred by Part III or for any other
purpose. Under clause (2) of Article 226 the High court may
exercise its power conferred by clause (1) if the cause of action,
wholly or in part, had arisen within the territory over which it
exercises jurisdiction, notwithstanding that the seat of such
Government or authority or the residence of such person is not
within those territories. On a plain reading of the aforesaid two
clauses of Article 226 of the Constitution it becomes clear that
a High Court can exercise the power to issue directions, orders
or writs for the enforcement of any of the fundamental rights
conferred by Part III of the Constitution or for any other purpose
if the cause of action, wholly or in part, had arisen within the
territories in relation to which it exercises jurisdiction,
notwithstanding that the seat of the Government or authority or
the residence of the person against whom the direction, order or
Indian Law Reports (Delhi) ILR (2011) VI Delhi
writ is issued is not within the said territories. In order to confer
jurisdiction on the High Court of Calcutta, NICCO must show
that at least a part of the cause of action had arisen within the
territorial jurisdiction of that Court. That is at best its case in the
writ petition.
6. It is well settled that the expression ‘‘cause of action’’ means
that bundle of facts which the petitioner must prove, if traversed,
to entitle him to a judgment in his favour by the Court. In Chand
Kour v. Partab Singh ILR (1889) 16 Cal 98, 102 Lord Watson
said:
‘‘...the cause of action has no relation whatever to the
defence which may be set up by the defendant, nor does
it depend upon the character of the relief prayed for by
the plaintiff. It refers entirely to the grounds set forth in
the plaint as the cause of action, or, in other words, to
the media upon which the plaintiff asks the Court to
arrive at a conclusion in his favour.’’
Therefore, in determining the objection of lack of territorial
jurisdiction the court must take all the facts pleaded in support
of the cause of action into consideration albeit without embarking
upon an enquiry as to the correctness or otherwise of the said
facts. In other words the question whether a High Court has
territorial jurisdiction to entertain a writ petition must be answered
on the basis of the averments made in the petition, the truth or
otherwise whereof being immaterial. To put it differently, the
question of territorial jurisdiction must be decided on the facts
pleaded in the petition.’’ [Emphasis added]
22. In Kusum Ingots & Alloys Ltd. (supra), the Apex Court
posed the question whether the seat of Parliament or the legislature of a
State would be a relevant factor for determining the territorial jurisdiction
of a High Court to entertain a writ petition under Article 226 of the
Constitution of India. Their Lordships not only referred to clause (2) of
Article 226 of the Constitution of India but also to the facet of cause of
action as stated in Chand Kour v. Partab Singh ILR (1887-88) 15 IA
156, Utpal Kumar Basu and others (supra), Swaika Properties (supra),
Aligarh Muslim University v. Vinay Engg. Enterprises (P) Ltd., (1994)
4 SCC 710, Union of India v. Adani Exports Ltd., (2002) 1 SCC 567
and Haribox Swalram (supra) and came to hold as follows:
‘‘19. Passing of a legislation by itself in our opinion does not
confer any such right to file a writ petition unless a cause of
action arises therefor.
20. A distinction between a legislation and executive action should
be borne in mind while determining the said question.
21. A parliamentary legislation when receives the assent of the
President of India and is published in the Official Gazette, unless
specifically excluded, will apply to the entire territory of India.
If passing of a legislation gives rise to a cause of action, a writ
petition questioning the constitutionality thereof can be filed in
any High Court of the country. It is not so done because a cause
of action will arise only when the provisions of the Act or some
of them which were implemented shall give rise to civil or evil
consequences to the petitioner. A writ court, it is well settled
would not determine a constitutional question in a vacuum.
22. The court must have the requisite territorial jurisdiction. An
order passed on a writ petition questioning the constitutionality
of a parliamentary Act, whether interim or final, keeping in view
the provisions contained in clause (2) of Article 226 of the
Constitution of India, will have effect throughout the territory of
India subject of course to the applicability of the Act.’’
23. Thereafter, in paragraphs 27 and 29, their Lordships stated
thus:
‘‘27. When an order, however, is passed by a court or tribunal
or an executive authority whether under provisions of a statute
or otherwise, a part of cause of action arises at that place. Even
in a given case, when the original authority is constituted at one
place and the appellate authority is constituted at another, a writ
petition would be maintainable at both the places. In other words
as order of the appellate authority constitutes a part of cause of
action, a writ petition would be maintainable in the High Court
within whose jurisdiction it is situate having regard to the fact
that the order of the appellate authority is also required to be set
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aside and as the order of the original authority merges with that
of the appellate authority.
X X X X
29. In view of clause (2) of Article 226 of the Constitution of
India, now if a part of cause of action arises outside the jurisdiction
of the High Court, it would have jurisdiction to issue a writ. The
decision in Khajoor Singh (supra) has, thus, no application.’’
[Emphasis added]
24. After so stating, in paragraph 30, their Lordships held thus:
‘‘30. We must, however, remind ourselves that even if a small
part of cause of action arises within the territorial jurisdiction of
the High Court, the same by itself may not be considered to be
a determinative factor compelling the High Court to decide the
matter on merit. In appropriate cases, the Court may refuse to
exercise its discretionary jurisdiction by invoking the doctrine of
forum conveniens. [See Bhagat Singh Bugga v. Dewan Jagbir
Sawhany, AIR 1941 Cal 670, Madanlal Jalan v. Madanlal,
AIR 1949 Cal 495, Bharat Coking Coal Limited v. Jharia
Talkies & Cold Storage (P) Ltd., 1997 CWN 122, S.S. Jain
& Co. v. Union of India, (1994) 1 CHN 445 and New Horizon
Ltd. v. Union of India, AIR 1994 Del 126.’’
[Emphasis supplied]
25. In Ambica Industries (supra), their Lordships have expressed
thus:
‘‘40. Although in view of Section 141 of the Code of Civil
Procedure the provisions thereof would not apply to writ
proceedings, the phraseology used in Section 20(c) of the Code
of Civil Procedure and clause (2) of Article 226, being in pari
materia, the decisions of this Court rendered on interpretation of
Section 20(c) CPC shall apply to the writ proceedings also.
Before proceeding to discuss the matter further it may be pointed
out that the entire bundle of facts pleaded need not constitute a
cause of action, as what is necessary to be proved, before the
petitioner can obtain a decree, is material facts. The expression
material facts is also known as integral facts.
41. Keeping in view the expression “cause of action” used in
Clause (2) of Article 226 of the Constitution of India, indisputably
even if a small fraction thereof accrues within the jurisdiction of
the Court, the Court will have jurisdiction in the matter though
the doctrine of forum conveniens may also have to be
considered.’’
[Emphasis added]
26. At this juncture, we may profitably refer to the decision in
Adani Exports Ltd. (supra) wherein their Lordships, after referring to
the decision in Utpal Kumar Basu and others (supra), have held thus:
‘‘17. It is seen from the above that in order to confer jurisdiction
on a High Court to entertain a writ petition or a special civil
application as in this case, the High Court must be satisfied from
the entire facts pleaded in support of the cause of action that
those facts do constitute a cause so as to empower to court to
decide a dispute which has, at least in part, arisen within its
jurisdiction. It is clear from the above judgment that each and
every fact pleaded by the respondents in their application does
not ipso facto lead to the conclusion that those facts give rise
to a cause of action within the court’s territorial jurisdiction
unless those facts pleaded are such which have a nexus or
relevance with the lis that is involved in the case. Facts which
have no bearing with the lis or the dispute involved in the case,
do not give rise to a cause of action so as to confer territorial
jurisdiction on the court concerned. If we apply this principle
then we see that none of the facts pleaded in Paragraph 16 of
the petition, in our opinion, fall into the category of bundle of
facts which would constitute a cause of action giving rise to a
dispute which could confer territorial jurisdiction on the courts
at Ahmedabad.’’
27. In Rajendran Chingaravelu v. R.K. Mishra, (2010) 1 SCC
457, the appellant, a Computer Engineer, with the intention to buy a
property at Chennai, identified a prospective seller at Chennai and proceeded
753 754Sterling Agro Industries Ltd. v. Union of India (Dipak Misra, CJ.)
Indian Law Reports (Delhi) ILR (2011) VI Delhi
from Hyderabad with a large sum of money to Chennai and when his
baggage was checked at the Hyderabad airport by the security personnel,
he was allowed to leave Hyderabad. However, at Chennai, some officers
of the Income Tax Investigation Wing rushed in and he was pulled out
of the aircraft and taken to the office on the first floor of the airport. He
was questioned there about the money he was carrying. After certain
enquiry and investigation, as nothing was found to be amiss or irregular,
the seized money was returned to him, but without any interest. Being
aggrieved by the action of the department, he filed a writ petition in the
High Court of Andhra Pradesh seeking certain reliefs. The High Court of
Andhra Pradesh declined to interfere and directed the appellant therein to
approach the appropriate court at Chennai. The said order was the subject
matter of appeal by special leave before the Apex Court. In that context,
their Lordships have held thus:
‘‘9. The first question that arises for consideration is whether
the Andhra Pradesh High Court was justified in holding that as
the seizure took place at Chennai (Tamil Nadu), the appellant
could not maintain the writ petition before it. The High Court did
not examine whether any part of cause of action arose in Andhra
Pradesh. Clause (2) of Article 226 makes it clear that the High
Court exercising jurisdiction in relation to the territories within
which the cause of action arises wholly or in part, will have
jurisdiction. This would mean that even if a small fraction of the
cause of action (that bundle of facts which gives a petitioner, a
right to sue) accrued within the territories of Andhra Pradesh,
the High Court of that State will have jurisdiction.
10. In this case, the genesis for the entire episode of search,
seizure and detention was the action of the security/intelligence
officials at Hyderabad Airport (in Andhra Pradesh) who having
inspected the cash carried by him, alerted their counterparts at
Chennai Airport that the appellant was carrying a huge sum of
money, and required to be intercepted and questioned. A part of
the cause of action therefore clearly arose in Hyderabad. It is
also to be noticed that the consequential income tax proceedings
against him, which he challenged in the writ petition, were also
initiated at Hyderabad. Therefore, his writ petition ought not to
have been rejected on the ground of want of jurisdiction.’’
[Underlining is by us]
28. On a scrutiny of the aforesaid emphasized lines, it is vivid that
their Lordships have opined that a part of the cause of action arose at
Hyderabad as the officers at Hyderabad had alerted their counterparts at
Chennai airport and further consequential income tax proceedings were
also initiated at Hyderabad. In our humble view, the concept of cause of
action which has been referred to in the said decision falls within the
concept of cause of action as explained and elucidated in Alchemist Ltd.
(supra).
29. In Mosaraf Hossain Khan v. Bhagheeratha Engg. Ltd. &
Ors., (2006) 3 SCC 658, the Apex Court referred to the decision in
Kusum Ingots & Alloys Ltd. (supra) and observed as follows:
‘‘26 ...with a view to determine the jurisdiction of one High
Court vis-a-vis the other the facts pleaded in the writ petition
must have a nexus on the basis whereof a prayer can be made
and the facts which have nothing to do therewith cannot give
rise to a cause of action to invoke the jurisdiction of a court. In
that case it was clearly held that only because the High Court
within whose jurisdiction a legislation is passed, it would not
have the sole territorial jurisdiction but all the High Courts where
cause of action arises, will have jurisdiction...’’
Thereafter, their Lordships reproduced paragraphs 27 and 28 of the
said decision and a passage from Adani Exports Ltd. (supra) and
proceeded to state as follows:
‘‘28. We have referred to the scope of jurisdiction under Articles
226 and 227 of the Constitution only to highlight that the High
Courts should not ordinarily interfere with an order taking
cognisance passed by a competent court of law except in a
proper case. Furthermore only such High Court within whose
jurisdiction the order of the subordinate court has been passed,
would have the jurisdiction to entertain an application under Article
227 of the Constitution unless it is established that the earlier
cause of action arose within the jurisdiction thereof.
29. The High Courts, however, must remind themselves about
the doctrine of forum non conveniens also. [See Mayar (H.K.)
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Ltd. v. Owners & Parties, Vessel M.V. Fortune Express,
(2006) 3 SCC 100: (2006) 2 Scale 30]’’ [Underlining is by us]
30. From the aforesaid pronouncements, the concept of forum
conveniens gains signification. In Black’s Law Dictionary, forum
conveniens has been defined as follows: ‘‘The court in which an action
is most appropriately brought, considering the best interests and
convenience of the parties and witnesses.’’
31. The concept of forum conveniens fundamentally means that it
is obligatory on the part of the court to see the convenience of all the
parties before it. The convenience in its ambit and sweep would include
the existence of more appropriate forum, expenses involved, the law
relating to the lis, verification of certain facts which are necessitous for
just adjudication of the controversy and such other ancillary aspects. The
balance of convenience is also to be taken note of. Be it noted, the Apex
Court has clearly stated in the cases of Kusum Ingots (supra), Mosaraf
Hossain Khan (supra) and Ambica Industries (supra) about the
applicability of the doctrine of forum conveniens while opining that arising
of a part of cause of action would entitle the High Court to entertain the
writ petition as maintainable.
32. The principle of forum conveniens in its ambit and sweep
encapsulates the concept that a cause of action arising within the
jurisdiction of the Court would not itself constitute to be the determining
factor compelling the Court to entertain the matter. While exercising
jurisdiction under Articles 226 and 227 of the Constitution of India, the
Court cannot be totally oblivious of the concept of forum conveniens.
The Full Bench in New India Assurance Co. Ltd. (supra) has not kept
in view the concept of forum conveniens and has expressed the view
that if the appellate authority who has passed the order is situated in
Delhi, then the Delhi High Court should be treated as the forum conveniens.
We are unable to subscribe to the said view.
33. In view of the aforesaid analysis, we are inclined to modify the
findings and conclusions of the Full Bench in New India Assurance
Company Limited (supra) and proceed to state our conclusions in
seriatim as follows:
(a) The finding recorded by the Full Bench that the sole
cause of action emerges at the place or location where the
tribunal/appellate authority/revisional authority is situate and
the said High Court (i.e., Delhi High Court) cannot decline
to entertain the writ petition as that would amount to
failure of the duty of the Court cannot be accepted
inasmuch as such a finding is totally based on the situs
of the tribunal/appellate authority/revisional authority totally
ignoring the concept of forum conveniens.
(b) Even if a miniscule part of cause of action arises within
the jurisdiction of this court, a writ petition would be
maintainable before this Court, however, the cause of
action has to be understood as per the ratio laid down in
the case of Alchemist Ltd. (supra).
(c) An order of the appellate authority constitutes a part of
cause of action to make the writ petition maintainable in
the High Court within whose jurisdiction the appellate
authority is situated. Yet, the same may not be the singular
factor to compel the High Court to decide the matter on
merits. The High Court may refuse to exercise its
discretionary jurisdiction by invoking the doctrine of forum
conveniens.
(d) The conclusion that where the appellate or revisional
authority is located constitutes the place of forum
conveniens as stated in absolute terms by the Full Bench
is not correct as it will vary from case to case and depend
upon the lis in question.
(e) The finding that the court may refuse to exercise
jurisdiction under Article 226 if only the jurisdiction is
invoked in a malafide manner is too restricted/constricted
as the exercise of power under Article 226 being
discretionary cannot be limited or restricted to the ground
of malafide alone.
(f) While entertaining a writ petition, the doctrine of forum
conveniens and the nature of cause of action are required
to be scrutinized by the High Court depending upon the
factual matrix of each case in view of what has been
stated in Ambica Industries (supra) and Adani Exports
Ltd. (supra).
757 758Sterling Agro Industries Ltd. v. Union of India (Dipak Misra, CJ.)
Indian Law Reports (Delhi) ILR (2011) VI Delhi
(g) The conclusion of the earlier decision of the Full Bench
in New India Assurance Company Limited (supra) ‘‘that
since the original order merges into the appellate order,
the place where the appellate authority is located is also
forum conveniens’’ is not correct.
(h) Any decision of this Court contrary to the conclusions
enumerated hereinabove stands overruled.
34. Ex consequenti, we answer the reference by partially overruling
and clarifying the decision in New India Assurance Company Limited
(supra) in the above terms. Matters be listed before the appropriate
Division Bench for appropriate consideration.
ILR (2011) VI DELHI 759
CS (OS)
M/S. KRIZM HOTELS PRIVATE LIMITED ....PLAINTIFF
VERSUS
M/S. VAISHNAVI ESTATES (P) LTD. ....DEFENDANT
(J.R. MIDHA, J.)
CS (OS) NO. : 2338/2009 DATE OF DECISION: 01.08.2011
IN I.A. NO. : 15969/2009
Trade Marks Act, 1999—Section 29—Ad-interim
injunction for restraining infringement of trademark-
Plaintiff, proprietor of registered trademark ‘lemon
tree’, was in continuous use of the same since October
2002—Had eleven operational hotels and eight under
construction using the trademark-defendant adopted
identical trademark in 2009 in respect of its housing
project at a distance of 2 kms from plaintiff’s hotel
which came into existence in 2008—Plaintiff filed the
suit for injunction along with application for ad-interim
injunction-defence of the defendant-inter alia-
customers of both the business were different-
invested huge amount-no likelihood of confusion-used
trademark only in respect of one project-undertook to
confine and restrict only in respect of one project and
not to use the same for any other project. Held—
Plaintiff entitled to grant of ad-interim injunction-
defendant adopted trademark without justification-
defence of the defendant that he invested huge
amount-rejected as the suit was instituted in 2009
itself-likely to cause confusion that plaintiff and
defendant have association—Even if services are not
similar, plaintiff is entitled to protection as it has
reputation in India—Balance of convenience lies in
favour of the plaintiff who would suffer irreparable
loss due to confusion—Conduct of defendant did not
appear honest—Warrants imposition of cost—
Defendant directed to change its name within four
weeks.
Findings
9.1 Prima Facie Case
On careful consideration of the respective contentions of
both the parties, this Court is of the prima facie view that the
plaintiff has a strong prima facie case for grant of ad-interim
injunction because:-
9.1.1 The plaintiff is the registered proprietor of the trademark
‘‘Lemon Tree’’.
9.1.2 The plaintiff is in continuous use of the said trademark
since October, 2002.
9.1.3 The plaintiff has eleven operational hotels and eight
hotels are under construction all over the country.
9.1.4 The plaintiff has invested more than Rs. 5,000 crores
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it is detrimental to the distinctive character as well as the
repute of the plaintiff’s registered trade mark.
9.1.10 With respect to the plea that there is a Lemon Tree
Hotel in USA, the defendant has not been able to show
cross border reputation of the said hotel in India.
9.2 Balance of convenience
9.2.1 The balance of convenience lies in favour of the
plaintiff and against the defendant as the plaintiff is the
registered proprietor of the trademark ‘‘Lemon Tree’’ and is
in continuous use since October, 2002 with eleven
operational hotels and eight hotels under construction all
over the country with an investment of more than Rs.5,000
crores.
9.2.2 On the other hand, the defendant who had been
carrying on its construction business in the name of Vaishnavi
Estates (P) Ltd since 1997, adopted the plaintiff’s trademark
‘‘Lemon Tree’’ without any justification in 2009 with the full
knowledge of the plaintiff’s hotel in Hyderabad at a distance
of about 2 kms from the plaintiff’s project and the plaintiff
immediately filed the present suit.
9.2.3 The defendant is using the plaintiff’s registered trade
mark ‘‘Lemon Tree’’ in respect of one project.
9.2.4 The defendant has given an undertaking to this Court
on 23rd March, 2011 not to use the said trademark for any
other project. Even one project in respect of which the
defendant is using the trademark ‘‘Lemon Tree’’ is a joint
venture agreement in respect of which the defendant has
already sold more than 105 flats.
9.2.5 It is not disputed that the defendant has only limited
interest in the project till the sale of the flats.
9.2.6 The defendant cannot ride on the plaintiff’s goodwill
and reputation to sell the remaining flats.
761 762 Krizm Hotels Pvt. Ltd. v. Vaishnavi Estates (P) Ltd. (J.R. Midha, J.)
in the hotel business.
9.1.5 The plaintiff has prima facie reputation in respect of
the said trademark on the basis of the aforesaid facts,
annual revenues and the expenses on advertisements.
9.1.6 The defendant adopted the identical trade mark
‘‘Lemon Tree’’ without any justification in year 2009 in
respect of its project at a distance of 2 kilometers from the
plaintiff’s hotel which came into existence in 2008. The
adoption of the plaintiff’s trade mark ‘‘Lemon Tree’’ by the
defendant appears to be dishonest with the sole intention to
encash the goodwill and reputation of the plaintiff.
9.1.7 The defendant’s claim that the mark ‘‘Lemon Tree’’
has become distinctive of their business and they have
invested huge amount and have given vide publicity is
misconceived in as much as the plaintiff instituted this suit
in 2009 itself immediately after becoming aware of the
defendant’s use. The defendant has also not placed on
record any material to substantiate its claim. The entire
defense of the defendant appears to be frivolous.
9.1.8 The defendant’s mark ‘‘Lemon Tree Apartments’’ is
identical to the registered trade mark of the plaintiff; the
services of the plaintiff and the defendant are similar (the
plaintiff is in hotel business whereas the defendant is in the
business of construction); it is likely to cause confusion to
the public that the defendant’s ‘‘Lemon Tree Apartments’’
have an association with the plaintiff and, therefore, the
plaintiff is entitled to protection under Section 29(2) and (3)
of the Trade Marks Act.
9.1.9. Even if the services of the plaintiff and the defendant
are taken to be not similar as contended by the defendant,
the plaintiff is entitled to protection under Section 29(4) of
the Trade Marks Act as the plaintiff has reputation in India;
use of the infringing mark by the defendant is without any
justification; the defendant has taken unfair advantage and
Indian Law Reports (Delhi) ILR (2011) VI Delhi
9.3 Irreparable loss and injury
The plaintiff would suffer irreparable loss and injury in case
the defendant is not restrained from using the plaintiff’s
registered trademark. If the defendant is not restrained from
using the plaintiff’s registered trademark ‘‘Lemon Tree’’, it
would also dilute the plaintiff’s trademark and would also
cause confusion to the public, who would associate the
defendant’s project with the plaintiff.
9.4 Relevant judgments
This case is squarely covered by the principles laid down in
Ozone SPA Private Limited (supra), Rolex SA (supra),
Vardhman Properties Ltd. (supra), Indian Shaving
Project Limited (supra) and Mahendra & Mahendra
Paper Mills Ltd. (supra). With respect to the judgments
cited by the defendant, this Court accepts the submissions
of the plaintiff recorded in para 7 above. (Para 9)
Conduct of the defendant
10.1. In Dalip Singh v. State of U.P., (2010) 2 SCC 114,
the Supreme Court noted as under:-
‘‘1. For many centuries, Indian society cherished two
basic values of life i.e. ‘Satya’ (truth) and ‘Ahimsa’
(non-violence). Mahavir, Gautam Buddha and Mahatma
Gandhi guided the people to ingrain these values in
their daily life. Truth constituted an integral part of the
justice-delivery system which was in vogue in pre-
Independence era and the people used to feel proud
to tell truth in the courts irrespective of the
consequences. However, post-Independence period
has seen drastic changes in our value system. The
materialism has over-shadowed the old ethos and the
quest for personal gain has become so intense that
those involved in litigation do not hesitate to take
shelter of falsehood, misrepresentation and
suppression of facts in the court proceedings. In the
last 40 years, a new creed of litigants has cropped
up. Those who belong to this creed do not have any
respect for truth. They shamelessly resort to falsehood
and unethical means for achieving their goals. In
order to meet the challenge posed by this new creed
of litigants, the courts have, from time to time, evolved
new rules and it is now well established that a litigant,
who attempts to pollute the stream of justice or who
touches the pure fountain of justice with tainted hands,
is not entitled to any relief, interim or final.’’
10.2. In Padmawati and Ors. v. Harijan Sewak Sangh,
154 (2008) DLT 411, this Court noted as under:
‘‘6. The case at hand shows that frivolous defences
and frivolous litigation is a calculated venture involving
no risks situation. You have only to engage
professionals to prolong the litigation so as to deprive
the rights of a person and enjoy the fruits of illegalities.
I consider that in such cases where Court finds that
using the Courts as a tool, a litigant has perpetuated
illegalities or has perpetuated an illegal possession,
the Court must impose costs on such litigants which
should be equal to the benefits derived by the litigant
and harm and deprivation suffered by the rightful
person so as to check the frivolous litigation and
prevent the people from reaping a rich harvest of
illegal acts through the Courts. One of the aim of
every judicial system has to be to discourage unjust
enrichment using Courts as a tool. The costs imposed
by the Courts must in all cases should be the real
costs equal to deprivation suffered by the rightful
person.’’
xxxxxx
‘‘9. Before parting with this case, I consider it
necessary to pen down that one of the reasons
for over-flowing of court dockets is the frivolous
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litigation in which the Courts are engaged by
the litigants and which is dragged as long as
possible. Even if these litigants ultimately loose
the lis, they become the real victors and have
the last laugh. This class of people who
perpetuate illegal acts by obtaining stays and
injunctions from the Courts must be made to pay
the sufferer not only the entire illegal gains
made by them as costs to the person deprived
of his right and also must be burdened with
exemplary costs. Faith of people in judiciary can
only be sustained if the persons on the right
side of the law do not feel that even if they keep
fighting for justice in the Court and ultimately
win, they would turn out to be a fool since
winning a case after 20 or 30 years would make
wrong doer as real gainer, who had reaped the
benefits for all those years. Thus, it becomes
the duty of the Courts to see that such wrong
doers are discouraged at every step and even if
they succeed in prolonging the litigation due to
their money power, ultimately they must suffer
the costs of all these years long litigation. Despite
settled legal positions, the obvious wrong doers,
use one after another tier of judicial review
mechanism as a gamble, knowing fully well that
dice is always loaded in their favour, since even
if they lose, the time gained is the real gain. This
situation must be redeemed by the Courts.’’
(Emphasis supplied)
This Court imposed costs of Rs. 15.1 lakhs in the above
case against which Special Leave to Appeal (Civil) No
29197/2008 was preferred to the Supreme Court. On 19th
March, 2010, the Supreme Court passed the following
order: ‘‘We have heard learned Counsel appearing for the
parties.
We find no ground to interfere with the well-considered
judgment passed by the High Court. The Special
Leave Petition is, accordingly, dismissed.’’
10.3 I agree with the findings by the learned Judge in
Padmawati’s case (supra) and wish to add a few words.
There is another feature which has been observed and it is
of unscrupulous persons filing false claims or defences with
a view that the other person would get tired and would then
agree to compromise with him by giving up some right or
paying some money. If the other party is not able to
continue contesting the case or the Court by reason of
falsehood falls into an error, the wrong succeeds. Many
times, the other party compromises, or at other times, he
may continue to fight it out. But as far as the party in the
wrong is concerned, as this Court noted in Padmawati’s
case (supra), even if these litigants ultimately lose the lis,
they become the real victors and have the last laugh.
10.4 In the present case, the conduct of the defendant does
not appear to be honest. The defendant has raised a
frivolous defence with the hope that the defendant can, with
the Court delays, drag the case for years and the other side
would succumb to buy peace. If the other side does not so
settle in the end, they are hardly compensated and remains
a loser. (Para 10)
Conclusion
12.1 In the facts and circumstances of this case, the
application is allowed and the defendant, their collaborators,
agents, dealers and representatives are restrained from
using the plaintiff’s registered trademark ‘‘Lemon Tree’’ or
any other mark identical with/or deceptively similar to the
plaintiff’s trade mark ‘‘Lemon Tree’’ as a trade mark, trade
name or trading style or in any other manner till the disposal
of this suit.
12.2 Following the judgment of the Supreme Court in
Ramrameshwari Devi (supra) and considering that the
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Indian Law Reports (Delhi) ILR (2011) VI Delhi
defendant raised a totally frivolous and dishonest defence
and the hearing of the injunction application continued for
seven hearings, this Court considers the cost of Rs.2,00,000/
- to be realistic. The cost of Rs. 2,00,000/- is, therefore,
imposed on the defendant to be paid to the plaintiff within
four weeks.
12.3 In the interest of justice, equity and fairplay, the
defendant is granted two months time to change its name in
terms of this order and to remove the signboards, brochures,
etc. subject to the payment of cost as aforesaid to the
plaintiff within four weeks.
12.4 The observations made hereinabove are prima facie
and shall not constitute any expression of final opinion on
the issues involved and shall have no bearing on the merits
of the case.
12.5 List before the Regular Bench as per Roster on 5th
August. (Para 12)
Important Issue Involved: A proprietor of trademark is
entitled for protection even if the services of the parties are
not similar, if the trademark is infringed without any
justification and is detrimental to the distinctive character as
well as reputation of his registered trademark.
[Sa Gh]
APPEARANCES:
FOR THE PLAINTIFF : Mr. R.K. Aggarwal, Advocate.
FOR THE DEFENDANT : Mr. S.K. Bansal, Advocate.
CASES REFERRED TO:
1. Ramrameshwari Devi vs. Nirmala Devi, MANU/SC/0714/
2011.
2. Vardhman Properties Ltd. vs. Vardhman Developers and
Infrastructures, 166 (2010) DLT 782.
3. Skol Breweries vs. Unisafe Technologies, 2010 (44) PTC
209 (Del.).
4. Roca Sanitario S.A. vs. Naresh Kumar Gupta, MANU/
DE/2040/2010.
5. Ozone SPA Private Limited vs. Ozone Club, 2010 (42)
PTC 469 (Del.).
6. ITC Ltd. vs. Philips Morris Products, 2010 (42) PTC 572
(Del.).
7. Skol Breweries vs. Unisafe Technologies, 2010 (44) PTC
209 (Del.).
8. J.K. Oil Industries vs. Adani Wilmar Ltd., 2010 (42) PTC
639 (Del.).
9. Dalip Singh vs. State of U.P., (2010) 2 SCC 114.
10. Rolex SA vs. Alex Jewellery Pvt. Ltd., 2009 (6) R.A.J.
489 (Del.).
11. Padmawati and Ors. vs. Harijan Sewak Sangh, 154 (2008)
DLT 411.
12. Khoday Distilleries Ltd. vs. Scotch Whisky Association,
2008 (37) PTC 413 (SC).
13. Mahendra & Mahendra Paper Mills Ltd. vs. Mahindra
& Mahindra Ltd., 2002 (24) PTC 121 (SC).
14. Indian Shaving Products Ltd. vs. Gift Pack, 1998 PTC
(18) (Del.).
15. Kellog Company vs. Pravin Kumar Bhadabhai, 1996 PTC
(16) (Del.).
16. Cool ways India vs. Prince Air Conditioning and
Refrigeration 1993 (1) Arbitration Law Reporter 401.
17. Amrit Soap Company vs. New Punjab Soap Factory 1989
(2) Arbitration Law Reporter 242.
18. Johnson & Johnson and Another vs. Christine Hoden (P)
Ltd., 1988 PTC 39.
RESULT: Application allowed.
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J.R. MIDHA, J.
I.A.No.15969/2009
1. The plaintiff has filed this suit for permanent injunction for
restraining infringement of trademark, service mark, copyright and for
damages in respect of its trademark ‘‘Lemon Tree’’.
1.1 Along with the suit, the plaintiff filed I.A.No.15969/2009 for
grant of ex-parte ad-interim injunction. Vide order dated 9th December,
2009, the summons in the suit and notice in the application were issued
to the defendant. However, ex-parte ad-interim injunction was not granted
to the plaintiff at that time.
1.2 On 29th April, 2010, the plaintiff gave up the claim for violation
of the copyright as well as passing off. In view thereof, the plaintiff’s
claim is now restricted to the claim for infringement of trademark only.
1.3 The pleadings in the suit as well as in I.A.No.15969/2009 under
Order XXXIX Rules 1 and 2 of the Code of Civil Procedure are complete.
2. Plaintiff’s Case
2.1 The plaintiff is the proprietor of the registered trademark ‘‘Lemon
Tree’’ in classes 8,12,16,17 and 42. The particulars of the seven
registrations held by the plaintiff are given in para 12 of the plaint and
the registration certificates have been placed on record as Annexure ‘F’.
The plaintiff has also applied for registration in Classes 29, 30, 31, 32
and 35 which are pending with the Trademark Registry.
2.2 The plaintiff conceived and adopted the trade mark ‘‘Lemon
Tree’’ in 2001 and started its use in October, 2002. The plaintiff opened
its first hotel in Gurgaon in June, 2004. The plaintiff has eleven operational
hotels under the name ‘‘Lemon Tree’’ in various states namely, Haryana,
Goa, Maharashtra, U.P., Kerala, Gujarat, Madhya Pradesh, Tamil Nadu
and Karnataka. Eight more hotels of the plaintiff are under construction.
2.3 The plaintiff claims to have invested more than Rs. 5,000
crores in the hotel business. The financial reports and audited accounts
of the plaintiff have been placed on record as Annexure ‘H’.
2.4 The plaintiff claims its hotel chain to be the country’s first
moderately priced, upscale, full service, business and leisure hotels for
catering to the needs of affluent and middle class society. The plaintiff
claims to have acquired high reputation in the market widely recognized
in the country as well as abroad. The plaintiff further claims to have
widely advertised in the media. The annual revenue generated and the
expenditure incurred on advertisements by the plaintiff for the years
ending 31st March, 2005 to 31st March, 2009 are given in para 18 of
the plaint. In the year ending 31st March, 2005, the plaintiff generated
revenue of Rs.2,38,31,842/- out of which the plaintiff spent Rs. 2,00,051/
- on advertisements. The annual revenue of the plaintiff increased to Rs.
56,24,55,700/- in the year ending 31st March, 2009 out of which the
plaintiff has spent Rs. 26,34,238/- on the advertisements. The copies of
the audited reports of the plaintiff for the years 2004-05 to 2008-09 are
on record as Annexure ‘H’. The write ups of the plaintiff’s hotels are on
record as Annexure-I.
2.5 On 17th September, 2009, the plaintiff came to know that the
defendant had started construction of residential apartments under the
name and style of ‘‘Lemon Tree Apartments’’ at Madhapur, Hyderabad
at a distance of about 2 kms from their hotel at Hyderabad known as
Lemon Tree Hotel. The brochure of the defendant is on record as
Annexure-J. The plaintiff immediately thereafter instituted the present suit
seeking the injunction against the defendant.
2.6 The adoption and use of trademark ‘‘Lemon Tree’’ by the
defendant is not bonafide and innocent but malafide and with the dishonest
intention of encashing the goodwill and reputation of the plaintiff. The
defendant had been carrying on its construction business since the year
1997 in the name of M/s Vaishnavi Estates (P) Ltd. The defendant
adopted the trademark ‘‘Lemon Tree’’ in 2009 in respect of its project
at a distance of 2 kms from the plaintiff’s hotel after the plaintiff’s hotel
at Madhapur, Hyderabad came into existence in 2008. According to the
plaintiff, the defendant has no justification for adopting the plaintiff’s
registered trademark ‘‘Lemon Tree’’.
2.7 The defendant’s trademark ‘‘Lemon Tree’’ is identical with the
plaintiff’s registered trademark. It is submitted that services of the
defendant are also similar to the services of the plaintiff. The plaintiff is
in the hotel business whereas the defendant is in the business of
construction of housing apartments and the activities are similar and,
769 770 Krizm Hotels Pvt. Ltd. v. Vaishnavi Estates (P) Ltd. (J.R. Midha, J.)
Indian Law Reports (Delhi) ILR (2011) VI Delhi
therefore, the use of the trademark ‘‘Lemon Tree’’ by the defendant
amounts to infringement of trademark under Section 29(2)(a) & (b) of
the Trade Marks Act, 1999.
2.8 Assuming though not admitting that the services of the plaintiff
and the defendant are not similar, the use of the trademark ‘‘Lemon
Tree’’ by the defendant amounts to infringement of trademark even
under Section 29(4) of the Trade Marks Act, 1999 as the plaintiff’s
registered trademark ‘‘Lemon Tree’’ has reputation in India.
3. Defence of the defendant
3.1 The defendant honestly and bonafidely adopted the trademark
‘‘Lemon Tree Apartments’’ in the year 2008 in relation to one of its
housing projects launched in 2008-09 in Hyderabad.
3.2 The defendant’s trademark has become distinctive of the
defendant’s business. The defendant has already invested huge amount
in the said business.
3.3 The defendant has given wide publicity to its project under the
said trademark. The defendant has invested heavily in promotion,
advertisement and publicity of the housing projects.
3.4 The defendant is the proprietor of the trademark ‘‘Lemon Tree
Apartments’’ and has the exclusive rights to use thereof.
3.5 The defendant’s business and services are not similar to the
business/services of the plaintiff. Whereas the plaintiff is carrying on the
business of hotels and hospitality, the defendant is involved in housing
projects. The plaintiff’s business activities are covered in Class 42 whereas
the defendant’s business/activities are covered in Class 36. The customers/
users of both the business and activities are different and different classes
of consumers are the end users of the two services.
3.6 There is no scope of the defendant passing off his goods and
business as that of the plaintiff.
3.7 The plaintiff is not holding any trademark registration for goods/
services in Class 36 or 37 which cover the defendant’s goods/services.
3.8 The defendant’s trademark has few add-ons by way of distinctive
work due to which it is distinct from the plaintiff’s trademark.
3.9 The use of trademark ‘‘Lemon Tree’’ by the defendant does
not amount to infringement under Sections 29(2)(a) and (b) of the Trade
Marks Act, 1999 because the business and services of the plaintiff and
the defendant are different and there is no likelihood of confusion on the
part of the public.
3.10 The use of trademark ‘‘Lemon Tree’’ by the defendant would
not amount to infringement under Section 29(4) of the Trade Marks Act,
1999 because the plaintiff has no reputation.
3.11 The plaintiff has pirated the trademark ‘‘Lemon Tree’’ from
Lemon Tree Hotel in USA which is in business since the year 1998 as
per the internet downloads filed by the defendant.
4. Learned counsel for the plaintiff in the rejoinder vehemently
denied that the defendants honestly and bonafidely adopted the trade
mark ‘‘Lemon Tree’’. The plaintiff further denied that the defendant has
invested heavily in promotion, advertisement and publicity as neither any
material has been placed on record nor any particulars have been furnished
by the defendant in this regard. The plaintiff is in the business of hotel
industry since 2002 and has already invested more than ‘5,000 crores.
The plaintiff has established the brand ‘‘Lemon Tree’’ in the market
whereas the defendant adopted the said mark in 2009 with the sole
intention of encashing the goodwill and reputation of the plaintiff. The
defendant has no explanation as to why it changed its earlier name
Vaishnavi Estates to ‘‘Lemon Tree’’ all of a sudden in 2009. Since the
suit was filed immediately after the defendant entered into the market, no
prejudice would be caused to the defendant if they are restrained from
using the brand ‘‘Lemon Tree’’. With respect to the defendant’s plea that
the plaintiff is a pirate because Lemon Tree Hotel was being run in the
USA much prior to the alleged adoption of the mark by the plaintiff, the
plaintiff submitted that the photocopy of the document downloaded from
the internet by the defendant shows that Lemon Tree hotel in the U.S.
was operated by two Australian families, who have been in the business
of providing accommodation since 1998, from which it cannot be assumed
that the Australian families are running hotel business under the trade
mark ‘‘Lemon Tree’’ since 1998. It was further submitted that there was
no material to show that the said mark used abroad enjoyed any reputation
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in India at any point of time when the plaintiff adopted the same and the
use of the said mark abroad was to the knowledge of the plaintiff when
the plaintiff adopted the mark in India.
5. Judgments relied upon by the plaintiff
5.1 Ozone SPA Private Limited vs. Ozone Club, 2010 (42) PTC
469 (Del.)
In this case, the plaintiff was the registered proprietor of the
trademark ‘OZONE’ in classes 16,30,32,33 and 42. The plaintiff was
running a spa which falls in class 41 whereas the defendant was running
fitness centre, health club and gymnastics. This Court held that the
plaintiff’s mark had acquired goodwill and reputation and, therefore, was
covered under Section 29(4) of the Trade Marks Act for protection of
the mark relating to dissimilar goods as the use of mark by the defendant
would be of unfair advantage and detrimental to the mark of the plaintiff.
The relevant finding of the Court are as under:-
‘‘19. Now I shall deal with the contentions raised by the
defendant. The first objection of the defendant is that the suit for
infringement of the trade mark is not maintainable as the plaintiff
has no registration in its favour in class 41 of the Schedule IV
of the classification, thus, the plaintiff cannot invoke the
jurisdiction under Section 134 of the Act. From the documents
filed by the plaintiff it appears, prima facie, that the trade mark
“Ozone” adopted and used by the plaintiff has acquired secondary
meaning by virtue of long and continuous user. In support of the
claim of goodwill and reputation, the plaintiff has furnished the
statement of sale and promotional expenses as well as the
documents to show that the mark “Ozone” has been continuously
used and advertised in various modern media and the mark was
adopted to distinguish with the services of the plaintiff. The
plaintiff has filed the ample evidence on record to show their
business activities and extensive advertisement and in view of
that, there is no hesitation to come to the conclusion that the said
name “Ozone” is known mark in relation to the services provided
by the plaintiff despite of the fact that the plaintiffs application
for registration in class 41 of Schedule IV of the Classification
in relation to health club and related services is pending for
registration but at the same time it is an admitted fact that the
plaintiff has got the registration in class 42 in relation to services
such as medical, hygiene and beauty care etc.
20. As regards the suit for infringement is concerned, undisputedly
the plaintiffs trade mark “Ozone” is registered in respect of the
various goods in classes 16, 30, 32, 33 and particularly in class
42 in respect of goods including hygiene and beauty care services.
Although, these are not same services but somehow they
are connected with the services provided by the plaintiff
under the mark “Ozone” the mark which has already
acquired a residual goodwill and reputation, therefore, this
Court is of the considered opinion that the present matter
covers under the dicta of Section 29(4) of the Act where the
protection of the mark is given to the dissimilar goods as
use of the mark by the defendant would be unfair advantage
of or is detrimental to the mark of the plaintiff, therefore,
it is a well known trade mark within the meaning of Section
2(1)(zg) of the Act and have the present case covered under
Section 29(4) of the Act.’’
(Emphasis Supplied)
5.2 Rolex SA v. Alex Jewellery Pvt. Ltd., 2009 (6) R.A.J. 489
(Del.) The plaintiff was the proprietor of the well known registered
trademark ‘ROLEX’ in respect of watches in class 14. The defendant
used the said mark in respect of artificial jewellery which was challenged
by the plaintiff. This Court held as under:-
‘‘13. The counsel for the plaintiff had in opening submissions
pitched her case primarily on Section 29(4) of the Act. Trademark,
traditionally is with respect to particular class of goods - there
could be infringement thereof only by use of similar or deceptively
similar mark with respect to same class of goods. Section 29(4)
is a major departure. Thereunder use of similar/deceptively similar
mark in relation to goods which are not similar to those for
which the trademark is registered has been included in the
definition of infringement, if the condition of Section 29(4)(c)
are met.
773 774 Krizm Hotels Pvt. Ltd. v. Vaishnavi Estates (P) Ltd. (J.R. Midha, J.)
Indian Law Reports (Delhi) ILR (2011) VI Delhi
14. The trademark ROLEX has been registered in favour of the
plaintiff with respect to watches etc since much prior to the user
claimed by the defendants from 1995. If the plaintiff satisfies the
test of Section 29(4)(c), the plaintiff even on the basis of its
registrations other than with respect to jewellery, would be entitled
to maintain an action of infringement against defendants with
respect to jewellery. The only question to be determined at
this prima facie stage is whether the registered trademark
ROLEX of the plaintiff, in relation to watches, has a
reputation in India and the use of the mark by the defendants
is without due cause and takes unfair advantage of and/or
is detrimental to the distinctive character or repute of the
registered trademark.
15. Section 2(z)(g) defines a well known trademark as the one
which in relation to any goods, means a mark which has become
so to the substantial segment of the public which uses such
goods that the use of such mark in relation to other goods would
be likely to be taken as indicating a connection in the course of
trade between those goods and a person using the mark in relation
to the first mentioned goods. In my view the segment of the
public which uses the watches of the category/price range as
the watches of the plaintiff, ROLEX is a well known
trademark. The said segment of the public if comes across
jewellery/artificial jewellery also bearing the trademark
ROLEX is likely to believe that the said jewellery has a
connection to the plaintiff.’’
(Emphasis Supplied)
5.3 Vardhman Properties Ltd. v. Vardhman Developers and
Infrastructures, 166 (2010) DLT 782
The plaintiff, a real estate developer was the registered proprietor
of the trademark VARDHAMAN GROUP whereas the defendant was
involved in the business of booking flats and real estate consultancy. This
Court restrained the defendant from using the mark VARDHMAN. The
relevant portion of the said judgment are as under:-
‘‘13. The concept of dilution had previously been evolved on a
case-to-case basis by the Courts in India, as a result of which
there was a kind of nebulousness and flexibility in its application.
With the advent of Section 29, which articulates the right to
registered trademark proprietor to sue for infringement, the
statutory remedies are delineated with more clarity. Sections 29(1)
to (3) of the Act, deal with infringement of trademarks, by the
use of similar or identical marks (by the alleged infringer), in
relation to same or similar goods or services. Significantly, Section
29(3) mandates the presumption (“shall”) in relation to such
class of infringement. However, infringement arises in relation
to dissimilar goods or services only if certain essential
ingredients are proved, i.e. (1) the senior mark being a
registered; (2) the identity or close similarity of the junior
mark with that of the registered proprietor’s; (3) the
existence of a distinctive reputation of the registered
proprietor’s mark’s; (4) use of the mark by the junior
mark or the infringer in relation to dissimilar goods or
services; (5) that such use being without due or reasonable
cause; and (6) the use by the infringer causing detriment to
the registered proprietor. ...’’
(Emphasis Supplied)
5.4 Indian Shaving Products Ltd. v. Gift Pack, 1998 PTC (18)
(Del.) —
This Court rejected the argument raised by the defendant that the
impugned mark was also being used by the some other person. The
findings of this Court are as under:-
‘‘52. It was next argued by the learned counsel for the defendant
that the said trade mark Ultra is being used by several other
persons/companies besides the defendants such as Toshiba,
National and Sony. Thus the same has become publici Jurisdiction
and the plaintiffs cannot claim any exclusive right therein.
53. Admittedly, the said parties are not before this Court. Neither
the said parties are claiming any relief against the plaintiffs nor
the plaintiffs are claiming any relief against them. Hence the
said defense, that other persons are also using the said
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trade mark, is not available to the defendants. The Court
is called upon to decide disputes in between the parties
which are before it. The Court cannot be expected to adjudicate
upon a dispute which is not before it. A matter very much akin
to the matter in hand came up before a single Judge of this
Court. It was observed in Cool ways India Vs. Prince Air
Conditioning and Refrigeration 1993 (1) Arbitration Law
Reporter 401. The contention that a plaintiff himself is usurping
or infringing the trade mark of a third party was not to be gone
into by the Court while deciding the issue in between the parties.
What is to be seen by the Court is as to whether the plaintiff has
acquired good-will and reputation for his products. Moreover,
the plaintiffs have placed on record a report on Urban Market for
Batteries, October, 1997. A perusal of the same shows that Sony
New Ultra was sold only one unit during the month of May,
1997. There is no sale in the month of June, July, August,
September, 1997. Similarly, Sony has got no market share during
the months of May, June, July, August and September, 1997.
Thus the same is absolutely of no avail to the defendants. To the
same effect is the view expressed by a learned Single Judge of
this Court in Amrit Soap Company Vs. New Punjab Soap
Factory 1989 (2) Arbitration Law Reporter 242. “The allegation
that some other manufacturers are also using the same trade
mark is of no consequence as the Court is concerned with
parties before it only.”
(Emphasis Supplied)
5.5 Mahendra & Mahendra Paper Mills Ltd. v. Mahindra &
Mahindra Ltd., 2002 (24) PTC 121 (SC) — The plaintiff was the
proprietor of the trademark ‘MAHENDRA’. The Supreme Court referred
to the Bombay High Court case of Kirloskar Diesal Recon Pvt. Ltd vs.
Kirloskar Property Ltd., AIR 1996 Bombay 149 which laid down the
following test:-
‘‘22. ...The real question in each case is whether there is as
a result of misrepresentation a real likelihood of confusion
or deception of the public and consequent damage to the
plaintiff. The focus is shifted from the external objective test of
making comparison of activities of parties to the state of mind
of public in deciding whether it will be confused. ...’’
(Emphasis Supplied)
5.6 Roca Sanitario S.A. v. Naresh Kumar Gupta, MANU/DE/
2040/2010 In this case, the plaintiff was the proprietor of trademark
‘ROCA’ which was adopted by the defendant in respect of the same
goods in India. The interim injunction was declined on the ground that
the plaintiff was not able to prima facie show cross border reputation.
6. Judgments relied upon by the defendant The learned counsel for
the defendant has referred to and relied upon ITC Ltd. vs. Philips
Morris Products, 2010 (42) PTC 572 (Del.), Skol Breweries vs. Unisafe
Technologies, 2010 (44) PTC 209 (Del.), Khoday Distilleries Ltd. vs.
Scotch Whisky Association, 2008 (37) PTC 413 (SC), Kellog Company
vs. Pravin Kumar Bhadabhai, 1996 PTC (16), Johnson & Johnson
and Another vs. Christine Hoden (P) Ltd., 1988 PTC 39 and J.K. Oil
Industries vs. Adani Wilmar Ltd., 2010 (42) PTC 639 (Del.).
7. Plaintiff’s response to the judgments cited by the defendant The
learned counsel for the plaintiff has submitted that the aforesaid judgments
cited by the defendant do not apply to the present case for the reasons
given hereunder:-
7.1 In ITC Ltd. vs. Philips Morris Products, 2010 (42) PTC 572
(Del.), the plaintiff’s trade mark was a logo which resembles a ‘W’,
generally used with the words ‘WELCOME GROUP’ whereas the
defendant’s trade mark was logo of ‘M’ with the word mark
‘MARLBORO’. This Court refused the injunction on the ground that the
competing marks were entirely different and there was no chance of any
confusion or deception.
7.2 In Skol Breweries vs. Unisafe Technologies, 2010 (44) PTC
209 (Del.), the plaintiff was using the trade mark ‘KNOCKOUT’ in
respect of beer. The defendant started selling defence pepper spray under
the trade mark ‘KNOCKOUT’. The injunction was refused on the ground
that the plaintiff had not placed any evidence on record to establish that
the trademark ‘KNOCKOUT’ had acquired distinctiveness to the extent
that the consumers would be confused if they came across pepper spray
with the trade mark ‘KNOCKOUT’ and the nature of business of the
parties was totally different and unrelated.
777 778 Krizm Hotels Pvt. Ltd. v. Vaishnavi Estates (P) Ltd. (J.R. Midha, J.)
Indian Law Reports (Delhi) ILR (2011) VI Delhi
7.3 Khoday Distilleries Ltd. vs. Scotch Whisky Association,
2008 (37) PTC 413 (SC) was a case of rectification/cancellation. The
petitioners before the Supreme Court had adopted and registered the
trade mark ‘PETER SCOT’ in respect of whisky in 1968. The respondent
[Scotch Whisky Association (Scotland)] came to know about the said
registration in 1974 but they filed rectification petition in 1986. The
rectification petition was dismissed by the Supreme Court broadly on the
ground that there had been an unexplained delay of more than 18 years
and the adoption of trade mark ‘PETER SCOT’ was bona fide.
7.4 In Kellog Company vs. Pravin Kumar Bhadabhai, 1996 PTC
(16) (Del.), the plaintiff was the registered proprietor of trade mark
‘‘KELLOG’S CORN FLAKE’’. The defendant launched the corn flakes
under the trade mark ‘‘AIMS ARISTO CORN FLAKE’’ prominently
displayed on the boxes. However, the boxes carried some colour
combination similar to the plaintiff’s box. This Court has observed that
since the marks are entirely different, there was no chance of any
confusion or deception.
7.5 In Johnson & Johnson and Another vs. Christine Hoden
(P) Ltd., 1988 PTC 39 (Del.), the plaintiff’s trade mark was ‘STAYFREE’
in respect of sanitary napkins. The defendants started using the trade
mark ‘‘COMFIT ALWAYS’’. The main trade mark used by the defendants
was ‘‘COMFIT ALWAYS’’ and the word ‘‘STAYFREE’’ was used in
descriptive sense. This Court refused the injunction as the two marks
were entirely different and there was no likelihood of confusion and
deception on the part of the public.
7.6 In J.K. Oil Industries vs. Adani Wilmar Ltd., 2010 (42)
PTC 639 (Del), the plaintiff’s trade mark was ‘‘OIL KINGS’’ in respect
of oil. The defendant adopted the trade mark (label) ‘‘KING.S’’ Label.
The injunction was refused because the trademark ‘‘KING.S’’ registered
and in use by the defendant in various countries had worldwide reputation.
This Court further noted the fact that the turnover of the defendant was
more than Rs. 150 crores and they had been spending more than Rs. 5
crores annually on advertisement of their brand.
7.7 The learned counsel for the plaintiff submitted that the aforesaid
cases have been decided on peculiar facts and circumstances of each
case. It is further submitted that the injunction was refused on the
ground that the competing marks were entirely different and, therefore,
there would be no confusion or deception among the public.
8. Undertaking of the defendant
During the course of arguments on 24th February, 2011, learned
counsel for the defendant submitted that the defendant has used the trade
mark ‘‘Lemon Tree Apartments’’ only in respect of one housing project
under construction at Hyderabad and the defendant has no other project
in the offing, whereupon the defendant was directed to file an affidavit
in this regard. Mr.T. Srinivas, Managing Director of the defendant,
submitted an affidavit dated 23rd March, 2001 in which it was stated that
358 flats are being constructed in Lemon Tree Apartments, out of which
construction of 125 flats was complete and the remaining flats were at
various stages of construction and the defendant had already sold 105
flats. The defendant has placed on record copy of the development
agreement dated 24th July, 2008 between the land owners and the three
developers including the defendants. As per the said agreement, the
defendant and two other developers, namely, M/s. Aakruti Construction
and Deepthi Homes entered into an agreement with the four co-owners
of the land for construction of multi-storyed building thereon. The
developers have paid a sum of Rs. 50 lakhs to the land owners and have
agreed to construct four blocks having built up area of 4 Lakh square
feet. The land owners and developers have 50% share each in the built
up property. The development agreement does not contain any clause for
giving any name to the project or the apartments. The Managing Director
of the defendant also appeared before this Court on 23rd March, 2011
and undertook to confine/restrict to use of trade mark ‘‘Lemon Tree
Apartments’’ in respect of one project in hand and not to use the same
for any other project.
9. Findings
9.1 Prima Facie Case
On careful consideration of the respective contentions of both the
parties, this Court is of the prima facie view that the plaintiff has a strong
prima facie case for grant of ad-interim injunction because:-
9.1.1 The plaintiff is the registered proprietor of the trademark
‘‘Lemon Tree’’.
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9.1.2 The plaintiff is in continuous use of the said trademark since
October, 2002.
9.1.3 The plaintiff has eleven operational hotels and eight hotels are
under construction all over the country.
9.1.4 The plaintiff has invested more than Rs. 5,000 crores in the
hotel business.
9.1.5 The plaintiff has prima facie reputation in respect of the said
trademark on the basis of the aforesaid facts, annual revenues and the
expenses on advertisements.
9.1.6 The defendant adopted the identical trade mark ‘‘Lemon Tree’’
without any justification in year 2009 in respect of its project at a
distance of 2 kilometers from the plaintiff’s hotel which came into existence
in 2008. The adoption of the plaintiff’s trade mark ‘‘Lemon Tree’’ by the
defendant appears to be dishonest with the sole intention to encash the
goodwill and reputation of the plaintiff.
9.1.7 The defendant’s claim that the mark ‘‘Lemon Tree’’ has
become distinctive of their business and they have invested huge amount
and have given vide publicity is misconceived in as much as the plaintiff
instituted this suit in 2009 itself immediately after becoming aware of the
defendant’s use. The defendant has also not placed on record any material
to substantiate its claim. The entire defense of the defendant appears to
be frivolous.
9.1.8 The defendant’s mark ‘‘Lemon Tree Apartments’’ is identical
to the registered trade mark of the plaintiff; the services of the plaintiff
and the defendant are similar (the plaintiff is in hotel business whereas
the defendant is in the business of construction); it is likely to cause
confusion to the public that the defendant’s ‘‘Lemon Tree Apartments’’
have an association with the plaintiff and, therefore, the plaintiff is entitled
to protection under Section 29(2) and (3) of the Trade Marks Act.
9.1.9. Even if the services of the plaintiff and the defendant are
taken to be not similar as contended by the defendant, the plaintiff is
entitled to protection under Section 29(4) of the Trade Marks Act as the
plaintiff has reputation in India; use of the infringing mark by the defendant
is without any justification; the defendant has taken unfair advantage and
it is detrimental to the distinctive character as well as the repute of the
plaintiff’s registered trade mark.
9.1.10 With respect to the plea that there is a Lemon Tree Hotel in
USA, the defendant has not been able to show cross border reputation
of the said hotel in India.
9.2 Balance of convenience
9.2.1 The balance of convenience lies in favour of the plaintiff and
against the defendant as the plaintiff is the registered proprietor of the
trademark ‘‘Lemon Tree’’ and is in continuous use since October, 2002
with eleven operational hotels and eight hotels under construction all over
the country with an investment of more than Rs.5,000 crores.
9.2.2 On the other hand, the defendant who had been carrying on
its construction business in the name of Vaishnavi Estates (P) Ltd since
1997, adopted the plaintiff’s trademark ‘‘Lemon Tree’’ without any
justification in 2009 with the full knowledge of the plaintiff’s hotel in
Hyderabad at a distance of about 2 kms from the plaintiff’s project and
the plaintiff immediately filed the present suit.
9.2.3 The defendant is using the plaintiff’s registered trade mark
‘‘Lemon Tree’’ in respect of one project.
9.2.4 The defendant has given an undertaking to this Court on 23rd
March, 2011 not to use the said trademark for any other project. Even
one project in respect of which the defendant is using the trademark
‘‘Lemon Tree’’ is a joint venture agreement in respect of which the
defendant has already sold more than 105 flats.
9.2.5 It is not disputed that the defendant has only limited interest
in the project till the sale of the flats.
9.2.6 The defendant cannot ride on the plaintiff’s goodwill and
reputation to sell the remaining flats.
9.3 Irreparable loss and injury
The plaintiff would suffer irreparable loss and injury in case the
defendant is not restrained from using the plaintiff’s registered trademark.
If the defendant is not restrained from using the plaintiff’s registered
trademark ‘‘Lemon Tree’’, it would also dilute the plaintiff’s trademark
and would also cause confusion to the public, who would associate the
781 782 Krizm Hotels Pvt. Ltd. v. Vaishnavi Estates (P) Ltd. (J.R. Midha, J.)
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defendant’s project with the plaintiff.
9.4 Relevant judgments
This case is squarely covered by the principles laid down in Ozone
SPA Private Limited (supra), Rolex SA (supra), Vardhman Properties
Ltd. (supra), Indian Shaving Project Limited (supra) and Mahendra
& Mahendra Paper Mills Ltd. (supra). With respect to the judgments
cited by the defendant, this Court accepts the submissions of the plaintiff
recorded in para 7 above.
10. Conduct of the defendant
10.1. In Dalip Singh v. State of U.P., (2010) 2 SCC 114, the
Supreme Court noted as under:-
‘‘1. For many centuries, Indian society cherished two basic
values of life i.e. ‘Satya’ (truth) and ‘Ahimsa’ (non-violence).
Mahavir, Gautam Buddha and Mahatma Gandhi guided the people
to ingrain these values in their daily life. Truth constituted an
integral part of the justice-delivery system which was in vogue
in pre-Independence era and the people used to feel proud to tell
truth in the courts irrespective of the consequences. However,
post-Independence period has seen drastic changes in our value
system. The materialism has over-shadowed the old ethos and
the quest for personal gain has become so intense that those
involved in litigation do not hesitate to take shelter of falsehood,
misrepresentation and suppression of facts in the court
proceedings. In the last 40 years, a new creed of litigants has
cropped up. Those who belong to this creed do not have any
respect for truth. They shamelessly resort to falsehood and
unethical means for achieving their goals. In order to meet the
challenge posed by this new creed of litigants, the courts have,
from time to time, evolved new rules and it is now well established
that a litigant, who attempts to pollute the stream of justice or
who touches the pure fountain of justice with tainted hands, is
not entitled to any relief, interim or final.’’
10.2. In Padmawati and Ors. v. Harijan Sewak Sangh, 154
(2008) DLT 411, this Court noted as under:
‘‘6. The case at hand shows that frivolous defences and frivolous
litigation is a calculated venture involving no risks situation. You
have only to engage professionals to prolong the litigation so as
to deprive the rights of a person and enjoy the fruits of illegalities.
I consider that in such cases where Court finds that using the
Courts as a tool, a litigant has perpetuated illegalities or has
perpetuated an illegal possession, the Court must impose costs
on such litigants which should be equal to the benefits derived
by the litigant and harm and deprivation suffered by the rightful
person so as to check the frivolous litigation and prevent the
people from reaping a rich harvest of illegal acts through the
Courts. One of the aim of every judicial system has to be to
discourage unjust enrichment using Courts as a tool. The costs
imposed by the Courts must in all cases should be the real costs
equal to deprivation suffered by the rightful person.’’
xxxxxx
‘‘9. Before parting with this case, I consider it necessary to
pen down that one of the reasons for over-flowing of court
dockets is the frivolous litigation in which the Courts are
engaged by the litigants and which is dragged as long as
possible. Even if these litigants ultimately loose the lis,
they become the real victors and have the last laugh. This
class of people who perpetuate illegal acts by obtaining stays
and injunctions from the Courts must be made to pay the
sufferer not only the entire illegal gains made by them as
costs to the person deprived of his right and also must be
burdened with exemplary costs. Faith of people in judiciary
can only be sustained if the persons on the right side of the
law do not feel that even if they keep fighting for justice in
the Court and ultimately win, they would turn out to be a
fool since winning a case after 20 or 30 years would make
wrong doer as real gainer, who had reaped the benefits for
all those years. Thus, it becomes the duty of the Courts to
see that such wrong doers are discouraged at every step and
even if they succeed in prolonging the litigation due to their
money power, ultimately they must suffer the costs of all
these years long litigation. Despite settled legal positions,
the obvious wrong doers, use one after another tier of judicial
review mechanism as a gamble, knowing fully well that dice
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is always loaded in their favour, since even if they lose, the
time gained is the real gain. This situation must be redeemed
by the Courts.’’
(Emphasis supplied)
This Court imposed costs of Rs. 15.1 lakhs in the above case
against which Special Leave to Appeal (Civil) No 29197/2008 was preferred
to the Supreme Court. On 19th March, 2010, the Supreme Court passed
the following order: ‘‘We have heard learned Counsel appearing for the
parties.
We find no ground to interfere with the well-considered judgment
passed by the High Court. The Special Leave Petition is,
accordingly, dismissed.’’
10.3 I agree with the findings by the learned Judge in Padmawati’s
case (supra) and wish to add a few words. There is another feature
which has been observed and it is of unscrupulous persons filing false
claims or defences with a view that the other person would get tired and
would then agree to compromise with him by giving up some right or
paying some money. If the other party is not able to continue contesting
the case or the Court by reason of falsehood falls into an error, the
wrong succeeds. Many times, the other party compromises, or at other
times, he may continue to fight it out. But as far as the party in the
wrong is concerned, as this Court noted in Padmawati’s case (supra),
even if these litigants ultimately lose the lis, they become the real victors
and have the last laugh.
10.4 In the present case, the conduct of the defendant does not
appear to be honest. The defendant has raised a frivolous defence with
the hope that the defendant can, with the Court delays, drag the case for
years and the other side would succumb to buy peace. If the other side
does not so settle in the end, they are hardly compensated and remains
a loser.
11. Imposition of Costs
In the recent judgment dated 4th July, 2011 in the case of
Ramrameshwari Devi v. Nirmala Devi, MANU/SC/0714/2011, the
Supreme Court has held that the Courts have to take into consideration
pragmatic realities and have to be realistic in imposing the costs. The
relevant paragraphs of the said judgment are reproduced hereunder:-
‘‘45. ....We are clearly of the view that unless we ensure that
wrongdoers are denied profit or undue benefit from the frivolous
litigation, it would be difficult to control frivolous and uncalled
for litigations. In order to curb uncalled for and frivolous litigation,
the courts have to ensure that there is no incentive or motive for
uncalled for litigation. It is a matter of common experience that
court’s otherwise scarce and valuable time is consumed or more
appropriately wasted in a large number of uncalled for cases.’’
‘‘52. The main question which arises for our consideration is
whether the prevailing delay in civil litigation can be curbed? In
our considered opinion the existing system can be drastically
changed or improved if the following steps are taken by the trial
courts while dealing with the civil trials.
A. Pleadings are foundation of the claims of parties. Civil litigation
is largely based on documents. It is the bounden duty and
obligation of the trial judge to carefully scrutinize, check and
verify the pleadings and the documents filed by the parties. This
must be done immediately after civil suits are filed.
B. The Court should resort to discovery and production of
documents and interrogatories at the earliest according to the
object of the Act. If this exercise is carefully carried out, it
would focus the controversies involved in the case and help the
court in arriving at truth of the matter and doing substantial
justice.
C. Imposition of actual, realistic or proper costs and or
ordering prosecution would go a long way in controlling the
tendency of introducing false pleadings and forged and
fabricated documents by the litigants. Imposition of heavy
costs would also control unnecessary adjournments by the
parties. In appropriate cases the courts may consider ordering
prosecution otherwise it may not be possible to maintain
purity and sanctity of judicial proceedings.
D. The Court must adopt realistic and pragmatic approach in
granting mesne profits. The Court must carefully keep in view
785 786 Krizm Hotels Pvt. Ltd. v. Vaishnavi Estates (P) Ltd. (J.R. Midha, J.)
Indian Law Reports (Delhi) ILR (2011) VI Delhi
improve.
54. While imposing costs we have to take into consideration
pragmatic realities and be realistic what the Defendants or
the Respondents had to actually incur in contesting the
litigation before different courts. We have to also broadly
take into consideration the prevalent fee structure of the
lawyers and other miscellaneous expenses which have to be
incurred towards drafting and filing of the counter affidavit,
miscellaneous charges towards typing, photocopying, court
fee etc.
55. The other factor which should not be forgotten while imposing
costs is for how long the Defendants or Respondents were
compelled to contest and defend the litigation in various courts.
The Appellants in the instant case have harassed the Respondents
to the hilt for four decades in a totally frivolous and dishonest
litigation in various courts. The Appellants have also wasted
judicial time of the various courts for the last 40 years.
56. On consideration of totality of the facts and circumstances
of this case, we do not find any infirmity in the well reasoned
impugned order/judgment. These appeals are consequently
dismissed with costs, which we quantify as Rs.2,00,000/-
(Rupees Two Lakhs only). We are imposing the costs not out
of anguish but by following the fundamental principle that
wrongdoers should not get benefit out of frivolous litigation.’’
(Emphasis supplied)
This case is squarely covered by the aforesaid judgment and
warrants imposition of realistic costs on the defendant.
12. Conclusion
12.1 In the facts and circumstances of this case, the application is
allowed and the defendant, their collaborators, agents, dealers and
representatives are restrained from using the plaintiff’s registered trademark
‘‘Lemon Tree’’ or any other mark identical with/or deceptively similar to
the plaintiff’s trade mark ‘‘Lemon Tree’’ as a trade mark, trade name or
trading style or in any other manner till the disposal of this suit.
787 788 Krizm Hotels Pvt. Ltd. v. Vaishnavi Estates (P) Ltd. (J.R. Midha, J.)
the ground realities while granting mesne profits.
E. The courts should be extremely careful and cautious in granting
ex-parte ad interim injunctions or stay orders. Ordinarily short
notice should be issued to the Defendants or Respondents and
only after hearing concerned parties appropriate orders should be
passed.
F. Litigants who obtained ex-parte ad interim injunction on the
strength of false pleadings and forged documents should be
adequately punished. No one should be allowed to abuse the
process of the court.
G. The principle of restitution be fully applied in a pragmatic
manner in order to do real and substantial justice.
H. Every case emanates from a human or a commercial problem
and the Court must make serious endeavour to resolve the problem
within the framework of law and in accordance with the well
settled principles of law and justice.
I. If in a given case, ex parte injunction is granted, then the said
application for grant of injunction should be disposed of on
merits, after hearing both sides as expeditiously as may be possible
on a priority basis and undue adjournments should be avoided.
J. At the time of filing of the plaint, the trial court should prepare
complete schedule and fix dates for all the stages of the suit,
right from filing of the written statement till pronouncement of
judgment and the courts should strictly adhere to the said dates
and the said time table as far as possible. If any interlocutory
application is filed then the same be disposed of in between the
said dates of hearings fixed in the said suit itself so that the date
fixed for the main suit may not be disturbed.
53. According to us, these aforementioned steps may help the
courts to drastically improve the existing system of administration
of civil litigation in our Courts. No doubt, it would take some
time for the courts, litigants and the advocates to follow the
aforesaid steps, but once it is observed across the country, then
prevailing system of adjudication of civil courts is bound to
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12.2 Following the judgment of the Supreme Court in
Ramrameshwari Devi (supra) and considering that the defendant raised
a totally frivolous and dishonest defence and the hearing of the injunction
application continued for seven hearings, this Court considers the cost of
Rs.2,00,000/- to be realistic. The cost of Rs. 2,00,000/- is, therefore,
imposed on the defendant to be paid to the plaintiff within four weeks.
12.3 In the interest of justice, equity and fairplay, the defendant is
granted two months time to change its name in terms of this order and
to remove the signboards, brochures, etc. subject to the payment of cost
as aforesaid to the plaintiff within four weeks.
12.4 The observations made hereinabove are prima facie and shall
not constitute any expression of final opinion on the issues involved and
shall have no bearing on the merits of the case.
12.5 List before the Regular Bench as per Roster on 5th August.
ILR (2011) VI DELHI 789
CRL. M.C.
ASHOK CHACHRA ....PETITIONER
VERSUS
THE STATE ....RESPONDENT
(SURESH KAIT, J.)
CRL. M.C. NO. : 2387/2011 DATE OF DECISION: 04.08.2011
Negotiable Instruments Act, 1881—Section 138—
Complaint u/s 138 filed—Accused convicted by trial
Court and sentenced to undergo SI for one year and
fine of Rs. 5,000/-—Criminal Revision filed before
Sessions Court—Substantive Sentence of one year SI
done away with and fine enhanced to Rs. 16,40,000/-
with direction that entire fine amount be given to
complainant as compensation and in default accused
to undergo SI for one year—Fine Amount directed to
be given directly to complainant in four instalments of
Rs.4,10,000/- each—Accused filed revision before High
Court—High Court granted stay subject to deposit of
Rs.10,00,000/- with Registrar General within four
weeks—Criminal Misc. Petition for staying operation
of impugned order passed by ASJ vacated—Application
u/s 424 and another application u/s 421 Cr.P.C. for
sentence for imprisonment in default to be carried out
and for issuance of warrants respectively moved
before M.M.—Vide impugned order M.M. directed court
notice to be issued—Contention of applicant that trial
Court should have issued Non Bailable Warrants
against convict instead of Court notice—No question
of issuing notice to convict arises because there is
no law that requires that a notice should be given
before a warrant of levy of fine is issued against the
person sentenced to fine—Trial Court directed to
ensure arrest of convict in accordance with law—
Appeal Allowed.
In support of his contentions, the learned counsel for the
petitioner has relied upon the Judgment of Allahbad High
court decided on 20.04.1960 in a case of Trilok Chand v.
C.N. Srivastava and Ors.. AIR 1961 ALL 88, wherein in
para 2, the Court has observed as follows:-
‘‘There is no force in the applicant’s contention that
Sri C.N. Srivastava had no jurisdiction to pass the
order of levy of fine and that he could not do so
without issuing a notice to the applicant. Sri. C.N.
Srivastava only executed the order passed by his
predecessor, Sri K.C. Sinha. The order of Sri K.C.
789 790Ashok Chachra v. The State (Suresh Kait, J.)
Indian Law Reports (Delhi) ILR (2011) VI Delhi
Sinha was bound to be executed and since Sri C.N.
Srivastava took up all the work left by him he was
competent to execute the order. No question of any
hearing or of issuing a notice to the applicant arises
because there is no law that requires that a notice
should be given before a warrant of levy of fine is
issued against ‘the person’ sentenced to fine. The
applicant was bound to pay the fine at the rate of
Rs.100/- per day during which the offence continued.
If he disputed that the offence continued or that it was
continued for so many days he ‘‘could object to the
attachment of his property but the attachment does
not become illegal’ because he was not heard before
the warrant was issued’’. (Para 12)
Important Issue Involved: There is no requirement of
giving hearing or issuing notice to convict u/S 138 NI Act
as there is no law that requires that a notice should be given
before a warrant of levy of fine is issued against the person
sentenced to fine.
[Ad Ch]
APPEARANCES:
FOR THE PETITIONER : Mr. Satish Agarwal, Advocate.
FOR THE RESPONDENT : Ms. Rajdipa Behura, APP.
CASE REFERRED TO:
1. Trilok Chand vs. C.N. Srivastava and Ors.. AIR 1961
ALL 88.
RESULT: Appeal Allowed.
SURESH KAIT, J.
(Oral CRL. M.A. 8701/2011 (Exemption)
Allowed subject to all just exceptions.
CRL.M.C. 2387/2011
1. Admit. Issue notice. Ms. Rajdipa Behura, learned APP for State
accepts notice on behalf of State.
2. It is submitted by learned counsel for the petitioner that a complaint
under section 138 of the Negotiable Instruments act was filed in respect
of dishonor of cheque for a sum of 8.8,21,600/- against the accused
Bharat Bhushan. The accused Bharat Bhushan was convicted by learned
Metropolitan Magistrate vide order dated 24.11.2004 to undergo SI for
1 year and fine of Rs.5000/- for the offence punishable under Section
138 of Negotiable Instruments Act, 1881.
3. Vide order dated 28.02,2011 in Criminal Revision No. 88/2010,
the sentence was modified and the substantive sentence of one year
awarded by the learned Trial court was done away with and the fine was
enhanced to Rs.16,40,000/-.
4. Further, it was directed that the respondent shall deposit a fine
of Rs.16,40,000/- and the entire fine amount shall be given to the
revisionist/Sh. Ashok Kumar Chachra as compensation. In default of
payment of fine, respondent shall undergo simple imprisonment for one
year.
5. Respondent submitted before the Revisional Court that he may
be allowed to pay fine/compensation in four installments for Rs.4,10,000/
- each.
6. Accordingly, it was further directed that the fine amount may be
given by the respondent directly to the revisionist and one week’s time
was granted to respondent to pay the first installment of compensation
before the learned Trial court i.e on 07.03.2011.
7. Thereafter, Bharat Bhushan filed a Revision Petition (Crl.) No.
126/2011 before this court, wherein the court granted stay on the operation
of the impugned order dated 28.02.2001 passed by the learned Additional
Sessions Judge till 19.05.2011 subject to the deposit of Rs.10 Lacs with
the Registrar General of this court within four weeks.
8. Vide order dated 05.07.2011 in Crl. Rev. 126/2011 filed by
Bharat Bhushan, the Crl. M.B. 509/2011 was dismissed and the order
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passed in the said Crl. M.B. for staying the operation of impugned order
dated 28.02.2001 passed by the learned Additional Sessions Judge was
vacated. A Dasti copy of the order was supplied to the parties.
9. On 06.07.2011, an application under Section 424 of Cr.P.C. and
another application under Section 421 Cr.P.C for sentence of imprisonment
in default to be carried out and for issuance of warrants respectively
were moved before the concerned Metropolitan Magistrate along with
copy of the order passed in Crl. Rev. 126/2011 dated 28.02.2001 passed
by the learned Additional Sessions Judge.
10. Learned Metropolitan Magistrate vide order dated 06.07.2011
directed a court notice to be issued to the convict Bharat Bhushan,
returnable for 29.07.2011. The order is reproduced hereunder:-
‘‘06.07.2011
Present : Sh. Sushil Kaushik Ld. Counsel for the complainant.
None for the accused.
Vakalatnama filed. It be taken o record. The accused was
convicted by this court vide order dated 22.11.2004. Against the
said order of conviction accused moved the Sessions Court by
way of appeal, which was dismissed vide order dated 28.02.2011
of the learned ASJ and dismissing the same the Sessions Court
was pleased to modify the order on sentence from that of fine
fo Rs.5,000/- and one year imprisonment to fine of Rs.16,40,000/
- and one year simple imprisonment, in case of default in payment
of said fine.
The order of the Sessions court was challenged by the accused
by moving a revision petition before the Hon’ble High Court of
delhi.
While admitting the said revision petition (Crl. Rev. P. 126/
2011) was pleased to stay the operation of the order dated
28.02.2011 passed by Sh. Vinay Kumar Khanna, Ld. ASJ till the
next date of eharing i.e 19.05.2011, this stay was conditional i.e
it was subject to the petitioner/accused depositing Rs.10,00,000/
- with the Registrar general of the High Court within four weeks
from 19.05.2011.
The said stay was vacated by the Hon’ble High Court vide its
order dated 05.07.2011.
Copy of the said order has been placed on record by the ld.
Counsel for the complainant. Issue court notice to the convict
for 29.07.2011.
Court notice be given dasti.
(NIPUN AWASTHI)
MM(01) South, NI Act
New Delhi 06.07.2011.’’
11. The learned counsel for the applicant/Sh. Ashok Kumar Chachra
further submits that the trial court has issued court notice to the convict
instead of issuing non bailable warrants against the convicts.
12. In support of his contentions, the learned counsel for the petitioner
has relied upon the Judgment of Allahbad High court decided on 20.04.1960
in a case of Trilok Chand v. C.N. Srivastava and Ors.. AIR 1961 ALL
88, wherein in para 2, the Court has observed as follows:-
‘‘There is no force in the applicant’s contention that Sri C.N.
Srivastava had no jurisdiction to pass the order of levy of fine
and that he could not do so without issuing a notice to the
applicant. Sri. C.N. Srivastava only executed the order passed by
his predecessor, Sri K.C. Sinha. The order of Sri K.C. Sinha
was bound to be executed and since Sri C.N. Srivastava took up
all the work left by him he was competent to execute the order.
No question of any hearing or of issuing a notice to the applicant
arises because there is no law that requires that a notice should
be given before a warrant of levy of fine is issued against ‘the
person’ sentenced to fine. The applicant was bound to pay the
fine at the rate of Rs.100/- per day during which the offence
continued. If he disputed that the offence continued or that it
was continued for so many days he ‘‘could object to the
attachment of his property but the attachment does not become
illegal’ because he was not heard before the warrant was issued’’.
793 794Ashok Chachra v. The State (Suresh Kait, J.)
Indian Law Reports (Delhi) ILR (2011) VI Delhi
13. I find force in the submissions made by learned counsel for the
petitioner and in the interest of justice, I direct the trial court to ensure
the arrest of convict/Sh. Bharat Bhushan in accordance with law.
14. Crl. M.C. 2387/2011 is disposed of accordingly.
15. Dasti under the signatures of Court Master.
IL R (2011) DELHI 795
W.P.(C)
SURESH KALMADI (IN JUDICIAL CUSTODY) ....PETITIONER
VERSUS
UNION OF INDIA & ORS. ....RESPONDENTS
(RAJIV SAHAI ENDLAW, J.)
W.P.(C) NO. : 5367/2011 DATE OF DECISION: 05.08.2011
Indian Penal Code, 1860—Section 120B, 420, 467, 468
and 471—Prevention of Corruption Act, 1988—Section
13(1) (d) and 13(2)—Constitution of India, 1950—Article
19(1) (a), 21, 105 (1) and 326—Petitioner, a
Parliamentarian in Judicial Custody filed writ petition
for permission to attend Parliament in Judicial
Custody—Plea taken, Parliamentarian has freedom of
speech subject only to rules and standing orders
regulating procedure of Parliament none of which
prevents petitioner from attending Parliament and
speaking while in custody—Constitutional right of
petitioner to participate in Parlimentary proceedings
and right to vote in Parliament as elected
representative is essence and expression of
Parliamentary democracy—Parliamentary democracy is
basic feature of Constitution of India and there is no
reason for denying such participation to petitioner
while same is possible in judicial custody—Refusing
participation in Parliamentary proceedings to petitioner
would deny him opportunity to fulfill his constitutional
objections to attend proceedings of Parliament—Unless
petitioner is so permitted, Parliamentary Constituency
which had elected him would go unrepresented in
Parliament—Public interest demands that petitioner,
be permitted to attend Parliament—Per contra, plea
taken offences with which petitioner is charged with
are extremely grave and serious causing huge wrongful
pecuniary benefits to certain private parties and
consequent loss to public exchequer—Some of other
accused officials of the Organizing Committee for
Common Wealth Games of which petitioner was
chairman are still absconding—CBI apprehends that
petitioner may misuse liberty sought by way of present
petition to influence witnesses and tamper with
evidence—Held—Argument as raised by petitioner
amounts to placing Members of Parliament (M.P.) at a
pedestal higher than their electorate—Argument
assumes work of a M.P. is more sacred and important
than work/vocation in which citizens who have elected
said Parliamentarian may be engaged in—Such
argument is archaic and creates two classes of citizens
as in a monarchy i.e. king and subject and is alien to
Constitution—Merely because petitioner is a
Parliamentarian does not entitle him to claim any
exception from effect of being in detention—It is not
case of petitioner that vote of petitioner on any aspect
is vital or that without such participation citizens of
his constituency would suffer—Petitioner, in past, as
per his convenience has been missing Sessions of
Parliament—When petitioner could afford to miss
parliament to spend time on National Games or
795 796 Suresh Kalmadi (In Judicial Custody) v. Union of India (Rajiv Sahai Endlaw, J.)
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Participate in Games at China, his desire/keenness to
attend parliament can only be understood as attempt
for fresh air outside prison walls—Petitioner is not
entitled to relief claimed—Petition dismissed with costs
of Rs. 1,00,000/- payable to Prime Minister’s National
Relief Fund.
Important Issue Involved: (A) Merely because the
petitioner is a Parliamentarian does not entitle him to claim
any exception from the effect of being in detention.
(B) The Parliament House cannot be expected to allow even
the sanctuary of its walls to protect a member from the
process of criminal law.
[Ar Bh]
APPEARANCES:
FOR THE PETITIONER : Mr. Ashok Desai, Mr. Neeraj Kishan
Kaul & Mr. Siddharth Luthra, Sr.
Advocates with Ms. Shyel Trehan,
Ms. Diya Kapur, Ms. Manjira Das
Gupta & Mr. Nikhil Pillai, Advocates.
FOR THE RESPONDENTS : Mr. A.S. Chandhiok, ASG with Ms.
Maneesha Dhir, Ms. Preeti Dalal, Mr.
Bhagat Singh & Ms. Mithu Jain,
Advocates for R-1. Mr. Dayan
Krishnan with Mr. Gautam Narayan
& Mr. Nikhil A. Menon, Advocates
for R-3.
CASES REFERRED TO:
1. Shekhar Tiwari vs. State of UP MANU/UP/0553/2009.
2. Kameshwar Baitha vs. State of Jharkhand MANU/JH/
1070/2009.
3. Shekhar Tiwari vs. State of UP MANU/UP/0553/2009.
4. Raja Ram Pal vs. Hon’ble Speaker, Lok Sabha (2007) 3
SCC 184.
5. Raghu Raj Pratap Singh @ Raja Bhaiya vs. State of
U.P. MANU/UP/0237/2003.
6. People’s Union for Civil Liberties (PUCL) vs. Union of
India (2003) 4 SCC 399.
7. Vineet Narain vs. Union of India (1998) 1 SCC 226.
8. P.V. Narasimha Rao vs. State (CBI/SPE) (1998) 4 SCC
626.
9. Daljit Singh Rajput vs. Chandigarh Administration MANU/
PH/0047/1998.
10. Indira Nehru Gandhi vs. Raj Narain 1975 (Supp) SCC.
11. K. Ananda Nambiar vs. Chief Secretary, Government of
Madras AIR 1966 SC 657.
12. Pandit M.S.M. Sharma vs. Sh. Sri Krishna Sinha AIR
1959 SC 395.
RESULT: Dismissed with cost of Rs. 1,00,000/-.
RAJIV SAHAI ENDLAW, J.
1. The petitioner, a Parliamentarian in judicial custody has filed this
writ petition seeking direction for permission to attend the Parliament
while remaining in judicial custody. It is inter alia the case of the petitioner
that he has received summons dated 14th July, 2011 summoning him to
attend the 8th Session of the 15th Lok Sabha commencing from 1st
August, 2011; that on enquiry, he has been informed that a Member who
is in prison in connection with any criminal case can be permitted by the
competent Court to attend day-to-day proceedings of the Lok Sabha; that
the bail application filed by him has been rejected vide order dated 6th
June, 2011; that though he made an application before the Special Judge
before whom he is being prosecuted for offences under Sections 120B
read with Sections 420, 467, 468 and 471 of the Indian Penal Code, 1860
and under Sections 13(2) read with Section 13(1)(d) of the Prevention
of Corruption Act, 1988 but the same was withdrawn with permission
797 798 Suresh Kalmadi (In Judicial Custody) v. Union of India (Rajiv Sahai Endlaw, J.)
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to apply to this Court for the reason that Ministry of Home Affairs is a
necessary party to the matter as security arrangements in Parliament fall
within the jurisdiction of the said Ministry.
2. It is further the case of the petitioner that the Courts have
routinely in the past permitted Members of Parliament to attend Parliament
Sessions while in custody; that Article 105(1) of the Constitution of India
grants to a Parliamentarian the freedom of speech subject only to the
rules and standing orders regulating the procedure of Parliament; that no
rule, standing order or procedure prevents the petitioner from attending
Parliament and speaking there-at while in custody; that the Constitutional
right of the petitioner to participate in Parliamentary proceedings and the
right to vote in Parliament as an elected representative is the essence and
expression of Parliamentary democracy and an expression of the
Constitutional right to vote guaranteed to every adult citizen under Article
326 of the Constitution of India and the freedom of expression guaranteed
by Article 19(1)(a) exercised in electing the petitioner as an elected
representative; that Parliamentary democracy is the basic feature of the
Constitution of India and there is no reason for denying such participation
to the petitioner when the same is possible while remaining in custody;
that because refusing participation in Parliamentary proceedings to the
petitioner would deny him the opportunity to fulfill his Constitutional
obligations to attend the proceedings of Parliament. It is further pleaded
that the petitioner is willing to abide by any condition which may be
imposed in this regard. The petitioner seeks mandamus to the respondents
Union of India Ministry of Home Affairs, Jail Superintendent Tihar Jail
and Central Bureau of Investigation (CBI) to take appropriate steps for
allowing the petitioner to, in custody attend the Parliamentary proceedings
commencing from 1st August, 2011 and scheduled until 8th September,
2011.
3. The petition came up first before this Court on 29th July, 2011
when the senior counsel for the petitioner relied on the orders dated 27th
November, 2008 and 10th February, 2009 in W.P.(C) No.7548/2008 and
W.P.(C) No.854/2009 both preferred by Sh. Rajesh Ranjan @ Pappu
Yadav permitting him to attend the Sessions of Parliament. Reliance was
also placed on newspaper reports of the Jharkhand High Court having
allowed Mr. Madhu Koda to attend Parliament while in custody.
4. However, the aforesaid orders, on a reading thereof appeared to
be consensual and were not found to contain any reasoning or adjudication.
It ˇwas thus put to the senior counsel for the petitioner that the same
could not constitute a precedent.
5. It was enquired from the senior counsel for the petitioner whether
the need / duty to attend Parliament can be placed at higher pedestal than
the other duties which other persons in detention may be required to
perform. It was felt that on the same parity, every person under detention
can claim that he / she should be allowed to carry on his trade / vocation
or to perform his / her duties including as of a son / father / husband
/ wife etc.; every person performing public functions would take the
same plea; the Directors on Board of Companies, the office bearers of
Trusts / Charities / Clubs would say that they too should be allowed to
perform their duties – thereby making arrest / detention farcical.
6. The senior counsel for the petitioner had then contended that
unless the petitioner is so permitted, the Parliamentary Constituency which
had elected him would go unrepresented in Parliament. It was thus
contended that public interest demands that the petitioner be permitted to
attend Parliament.
7. In the face of the aforesaid argument, need was felt to enquire
into the past record of attendance of the petitioner in the Parliament. This
Court felt that if the petitioner in the past, without being prevented as he
now is, had not regularly attended the Parliament then he ought not be
permitted to use that as a mere excuse. The petitioner was as such called
upon to file an affidavit detailing his attendance in Parliament in the last
five years.
8. Further, considering that the Parliament Sessions are now telecast
live, need of the petitioner to attend Parliament in person was also enquired
into.
9. Yet further, in view of the newspaper reports having indicated
that the petitioner was under medical examination, the petitioner was
required to file an affidavit in that regard also.
10. Though the learned ASG and the counsel for the CBI appearing
on advance notice had sought opportunity to file counter affidavits but
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being of the view that the question involved was purely legal and
considering the urgency expressed, need for issuing formal notice of the
petition and calling for counter affidavits was not felt and the counsels
were called upon to address finally on the matter.
11. The petitioner has filed an affidavit as directed. CBI has also put
in a short reply.
12. The petitioner in his affidavit has disclosed his attendance during
the Parliamentary Sessions of the 14th Lok Sabha from 2nd June, 2004
to 26th February, 2009 as varying from a low of 42% to a high of 91%.
I may however add that except for one Session where the attendance
was 42%, the attendance in all the other Sessions was above 57%. Qua
the Parliamentary Sessions of the 15th Lok Sabha from 1st June, 2009
to 25th March, 2011 attendance has been disclosed as 100%, 85%, 48%,
75%, 12%, 4% & 39%. It is stated that the poor attendance in some of
the Sessions was during the time leading up to the Commonwealth Games
and during which time the petitioner was dedicating all his time to
organization of the Games. The poor attendance thereafter is stated to be
owing to the participation in Asian Games in China and owing to organizing
the National Games at Ranchi.
13. The petitioner qua his participation in the Parliamentary Sessions
has deposed that he has frequently asked questions and participated in
debates and has in the 15th Lok Sabha already raised 42 questions. It is
further deposed that Members of Parliament are also permitted to
participate in the discussions on the floor of the House and the petitioner
intends to participate in the discussions in the ensuing Session on issues
relating to Pune Airport, the local train network and urban development.
14. The respondent No.3 CBI in its short reply has pleaded that the
offences with which the petitioner is charged with are extremely grave
and serious causing huge wrongful pecuniary benefits to certain private
parties and consequent loss to the public exchequer; that some of the
other accused officials of the Organizing Committee for Commonwealth
Games of which the petitioner was the Chairman are still absconding;
that the CBI apprehends that the petitioner may misuse the liberty sought
by way of the present petition to influence the witnesses and tamper with
the evidence. The respondent No.3 CBI without prejudice to the said
pleas has also detailed the conditions to be imposed in the event of the
petition being allowed.
15. The senior counsel for the petitioner has urged that Parliamentary
ˇrepresentation is essential in a democracy and basic feature of the
Constitution; the people / citizens are represented in the Parliament through
their elected representatives as the petitioner is; that after the 44th
amendment to the Constitution of India, Article 21 cannot be suspended;
that Article 105 prevails over Article 19; that the guilt of the petitioner
has not been established as yet and the petitioner is but an accused; that
the apprehension expressed by the CBI of the petitioner upon being so
allowed to attend Parliament, influencing witnesses can be allayed by
imposing appropriate conditions; that Members of Parliament are the live
link which connect the people to their Government; that the elected
representative has a duty under the Constitution to his electorate and
which entails a corresponding obligation to attend Parliament; that there
is a need for balancing the said functions of the petitioner with his
detention; that for the petitioner to exercise the right of freedom of
speech as a Parliamentarian, he needs to have access to the Parliament
and without such access there can be no such freedom. It is further
stated that Mr. Madhu Koda who has been allowed by the concerned
Court to attend Parliament is also presently lodged in Tihar Jail and
arrangements have already been made for his transit to and fro Parliament
and it will be travesty that while one Parliamentarian lodged in the same
jail is allowed to attend Parliament, other is not.
16. The senior counsel for the petitioner during the course of
hearing has referred to:
(i) P.V. Narasimha Rao Vs. State (CBI/SPE) (1998) 4 SCC
626 in para 47 whereof it was held that Parliamentary
democracy is a part of the basic structure of the
Constitution; in paras 162 & 165, that in a democratic
form of Government, it is the Member of Parliament who
represents the people of his Constituency in the highest
law making bodies at the Centre and performs a public
duty.
(ii) People’s Union for Civil Liberties (PUCL) Vs. Union
801 802 Suresh Kalmadi (In Judicial Custody) v. Union of India (Rajiv Sahai Endlaw, J.)
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of India (2003) 4 SCC 399 para 94 whereof details the
duties and responsibilities of a Member of Parliament.
(iii) Pandit M.S.M. Sharma Vs. Sh. Sri Krishna Sinha AIR
1959 SC 395 in paras 24 & 25 whereof it was laid down
that the freedom of speech under Article 194(1) cannot
be cut down in any way by any law contemplated by
Article 19(2).
17. The arguments as raised by the senior counsel for the petitioner
were raised before the Constitution Bench of the Apex Court also as far
back as in K. Ananda Nambiar Vs. Chief Secretary, Government of
Madras AIR 1966 SC 657. The legendary Mr. Setalvad appearing for the
Member of Parliament then under detention had also contended that a
Member of Parliament has Constitutional rights to function as such Member
and to participate in the business of the House to which he belongs – that
he is entitled to attend every Session of Parliament, to take part in the
debate, and to record his vote and no law can validly take away his right
to function as such Member. It was thus the contention before the Apex
Court also that the legislators have certain Constitutional rights which
cannot validly be taken away by any statute or statutory rule.
18. Of course, the senior counsel here, has not pegged the right of
the petitioner so high. Nevertheless, an exception to the principle of
detention, of the person under detention being deprived from access to
his family, friends, work, vocation etc., is sought to be carved out in the
case of Members of Parliament.
19. Before adverting to what was held by the Constitution Bench
on the contentions aforesaid of Mr. Setalvad, I may humbly observe that
the argument as raised before this Court amounts to placing Members of
Parliament at a pedestal higher than their electorate. The argument assumes
that the work of a Member of Parliament is more sacred and important
than the work / vocation in which the citizens who have elected the said
Parliamentarian may be engaged in. Such an argument is archaic and
creates two classes of citizens as in a monarchy i.e. the King and the
Subject and is alien to our Constitution. The legal luminary of our times,
Mr. Nani A. Palkhivala in his book “Our Constitution Defaced and Defiled”
has explained the essence of our Constitution as under:-
“Our Constitution is primarily shaped and moulded for the
common man. It takes no account of "the portly presence of the
potentates, goodly in girth". It is a Constitution not meant for the
ruler but the ranker, the tramp of the road, the slave with the
sack on his shoulders pricked on with the goad, the man with
too weighty a burden, too weary a load.”
20. The senior counsels for the petitioner did not address on the
query posed to them as aforesaid on 29th July, 2011, i.e. as to how the
work of a Parliamentarian can be placed on a higher pedestal. A Member
of Parliament cannot tell the citizens who have elected him that the sweat
of his brow is dearer or that the work performed by him is more
important. The argument, of a Parliamentarian being entitled to continue
attending Parliament notwithstanding his arrest and when the citizen who
has elected him, inspite of holding position, be that of a Director in a
public limited Company or of an office bearer in a Society or a Club or
having the duty towards spouse, parents and children, being not so
entitled, runs contrary to the principle of equality enshrined in our
Constitution. The duty of a father to a growing child or of a son to an
ailing parent cannot be held to be any less important. If the arguments
as raised were to be accepted, it will be difficult for the Courts to refuse
the same concession to others under detention. They will also claim that
they, while remaining under custody should be allowed to continue with
their vocation to prevent their dependent family members from starving
or suffering. I find, a practicing Advocate under detention to have similarly
claimed that he should, while in custody, be allowed to conduct the cases
of clients who had earlier engaged him; he had also contended that his
clients will go unrepresented and will file consumer complaints against
him. The said claim was negatived by the Division Bench in Daljit Singh
Rajput Vs. Chandigarh Administration MANU/PH/0047/1998. It was
held that the arrest and judicial custody being in accordance with the
established criminal law of the country, he could not exercise the rights
of personal liberty, so long as deprived thereof in accordance with the
procedure prescribed by law. The same holds good for the petitioner
herein.
21. The senior counsel for the petitioner himself had invited attention
to Section 135A of the Civil Procedure Code carving out an exception
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for a Parliamentarian when Parliament is in Session, from civil arrest.
The Legislature has not made any such exception qua arrest for criminal
offences or where the Member of Parliament is charged with an indictable
offence and rightly so, for the House cannot be expected to allow even
the sanctuary of its walls to protect a member from the process of
criminal law.
22. Coming back to the Constitution Bench judgment in K. Ananda
Nambiar (supra), it was held that the Constitution does not impose any
obligation on individual Members of Parliament – they are neither bound
to attend the Session nor under an obligation to be present in the House
when the President addresses it; subject-matter of the various Articles of
the Constitution is not the individual rights of the Members of Parliament,
but they refer to the right of the President to issue a summon for the
ensuing Session of Parliament or to address the House. It was further
held that though the basis of democratic form of Government is that
Members of Legislatures must be given absolute freedom of expression
when matters brought before the Legislature are debated but that is only
when they attend the Session of the House. The argument that it is the
Constitutional and fundamental right of a Parliamentarian to attend the
Session of the House was negatived. It was held that if the order of
detention validly prevents a Parliamentarian from attending a Session of
Parliament, no occasion arises for exercise of the right of freedom of
speech and no complaint can be made that the said right has been
invalidly invaded. Similarly, the argument that so long as the Member of
Parliament has not incurred any disqualification, he is entitled to exercise
his rights as such Member was also negatived and it was held that a
person who is detained, himself foregoes his right to participate in the
business of the Legislature. It was yet further held that so far as a valid
order of detention is concerned, a Member of Parliament can claim no
special status higher than that of an ordinary citizen and is as much liable
to be arrested and detained under it as any other citizen.
23. Though the senior counsel for the petitioner contended that K.
Ananda Nambiar was pronounced in the background of emergency
when Articles 19 to 21 were suspended and dealt with a case of preventive
detention which has an element of adjudication of guilt as compared to
the arrest in the present case and was in the context of challenge to the
law of preventive detention, but in my opinion the said factors have no
bearing on the ratio as culled out herein above of the judgement of the
Constitution Bench.
24. The counsel for the respondent No.3 CBI has contended that
the present also cannot be said to be a case of non application of mind
by the Court in whose judicial custody the petitioner is inasmuch as the
charge sheet has been filed and cognizance has been taken. He further
contends that even in Indira Nehru Gandhi Vs. Raj Narain 1975
(Supp) SCC 1 the same principles as in K. Ananda Nambiar were
reiterated and the principle laid down by Commons in a conference with
the Lords in 1641 that “privilege of Parliament is granted in regard to the
service of the Commonwealth and, is not to be used to the danger of the
Commonwealth” was held to be applicable. He has also drawn attention
to (i) Raja Ram Pal Vs. Hon’ble Speaker, Lok Sabha (2007) 3 SCC
184 also laying down that the privilege of a Member of Parliament from
arrest has never been allowed to interfere with the administration of
criminal justice; (ii) passages in Sir Thomas Erskine May’s “Treatise on
The Law, Privileges, Proceedings and Usage of Parliament” Twenty-
fourth Edition; and (iii) passages in M.N. Kaul and S.L. Shakdher’s
“Practice and Procedure of Parliament” Fifth Edition, and contends that
it is not as if non-attendance of the Parliamentary Session of the petitioner
would lead to forfeiture of his membership.
25. Ld. ASG has also opposed the grant of relief to the petitioner.
He has invited attention to the application filed by the petitioner in July,
2011 before the Special Judge in whose judicial custody the petitioner is,
where the petitioner has stated that he is sick and infirm, suffering from
various ailments resulting inter alia in forgetfulness. It has been suggested
that the petitioner in such state of health cannot be expected to make any
contribution to the Parliament and is using the excuse of attending
Parliament to get away from the rigours of imprisonment after he has
been unsuccessful in obtaining bail. Reliance is also placed on Raghu
Raj Pratap Singh @ Raja Bhaiya Vs. State of U.P. MANU/UP/0237/
2003 where a Division Bench of the Allahabad High Court also held that
the Legislators have no enforceable right to participate in the Session of
the House so long as they are under detention and carved out a distinction
between the right to attend Parliament and the right to vote, right to
805 806 Suresh Kalmadi (In Judicial Custody) v. Union of India (Rajiv Sahai Endlaw, J.)
Indian Law Reports (Delhi) ILR (2011) VI Delhi
contest election or right to take oath as a Parliamentarian. It was held that
right to vote and right to contest election are statutory rights; while a
person in jail can cast his vote and contest election but there is no such
provision regarding the right to attend Parliament.
26. I find similar view to have been taken in Kameshwar Baitha
Vs. State of Jharkhand MANU/JH/1070/2009 and in Shekhar Tiwari
Vs. State of UP MANU/UP/0553/2009. The Apex Court in Raja Ram
Pal (supra) also held that expulsion of a Member from Parliament does
not violate the democratic principles and the challenge to expulsion on the
ground that the Constituency would go unrepresented in Parliament was
not sustained. The same ground urged here to seek a special right in
favour of the petitioner, thus has no merit.
27. What thus follows is that merely because the petitioner is a
Parliamentarian does not entitle him to claim any exception from the
effect of being in detention. Else, the petitioner has not made out any
case necessitating him to attend the Parliament. It is not the case that the
vote of the petitioner on any aspect is vital or that without such participation
the citizens of his Constituency would suffer. Though the need for
participation on issues relating to Pune Airport, the local train network
and urban development is mentioned but no particulars have been given.
It cannot also be lost sight of that the petitioner in the past, as per his
convenience has been missing Sessions of Parliament. It was not the
mandate of his electorate that he should take up the Chairmanship of the
Organizing Committee for Commonwealth Games or spend time on
National Games or participate in the Games at China. When the petitioner
could afford to miss Parliament then, his desire / keenness to attend now
can only be understood as an attempt for fresh air outside the prison
walls. What the American publisher William Randolph Hearst said, “a
politician will do anything to keep his job – even become a patriot” seems
apposite.
28. Allowing the petitioner to attend the Parliament, even if in
judicial custody, would certainly provide the petitioner respite from
imprisonment. I see no reason to carve out an exception in favour of the
petitioner when his fellow prisoners are not provided such respite.
Sophocles said “Nobody has a more sacred obligation to obey the law
than those who make the law”. The Parliamentary privileges which the
Members of Parliament enjoy are intended to facilitate their work as
representatives of people and should not be mistaken as indicative of rank
or creating a separate class different from the other citizens. The Apex
Court in Vineet Narain Vs. Union of India (1998) 1 SCC 226 held that
the law does not classify offenders differently for treatment thereunder,
including investigation of offences and prosecution for offences, according
to their status in life – every person accused of committing the same
offence is to be dealt with in the same manner in accordance with law,
which is equal in its application to everyone.
29. Though during the hearing, I had enquired whether any provision
in the guidelines relating to parole / furlough exists qua Parliamentarians
but the senior counsel for the petitioner has stated and it has been so
observed in Lok Sabha Debates dated 24th November, 1965 at page 3615
also that a Parliamentarian on parole is not entitled to attend the House.
Moreover, parole is post conviction. No other instances under which a
person while in custody can be permitted to perform his duties has been
cited. 30. The petitioner is thus not found entitled to the relief claimed.
There is no merit in the petition. The same is dismissed with costs of
Rs. 1,00,000/- to the Prime Minister’s National Relief Fund.
ILR (2011) VI DELHI 808
W.P. (C)
S.P. ARYA ....PETITIONER
VERSUS
UNION OF INDIA & ORS. ....RESPONDENTS
(S. MURALIDHAR, J.)
W.P. (C) NO. : 4170/1999 DATE OF DECISION: 30.08.2011
Constitution of India, 1950—Writ—Service matter—LIC
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(staff) Regulations, 1950—Regulation 39—Industrial
Disputes Act, 1947—Petitioner appointed in LIC as
office attendant in 1963—Posted in Meerut Division—
Became a trade unionist—Transferred to Mhow in
Madhya Pradesh in November 1978—Did not comply
with the transfer order—Letter dated 22.12.1978
directing the petitioner to join his duties at Mhow-did
not join duties-continued to address leave applications
to Divisional Office at Meerut—Again, vide letter dated
05.02.1979 asked to join duty at Mhow-Did not join-
continued to defy despite another letter dated
21.08.1979—Pleaded illness-Panel of medical examiners
at Medical College, Meerut constituted-petitioner
challenged the constitution of panel and refused to
appear—Transfer order modified on 26.04.1980 from
Mhow to Panipat-modified order not complied with-
further directed to join duty at Panipat vide letter
dated 15.05.1980—Asked to get in touch with Dr.
Aggarwal for medical examination-did neither-resorted
to hunger strike-submitted fitness certificate dated
21.05.1980—LIC (staff) Regulation 1960—Regulation 39
lays down procedure to hold an enquiry-holding of
enquiry dispesed with by the Zonal Manager—Charge
sheet-cum-show cause Notice proposing penalty of
removal from service under Regulation 39 (1) (f) issued
on 21.06.1980—Reply not filed-kept on seeking time-
vide order dated 11.08.1980 discussing the charges
and documents in support of punishment of removal
from service under Regulation 39 (1) (f) imposed—
Appeal against the order-dismissed by the Managing
Director—Memorial preferred before the Chairman
followed by apology—Writ Petition before Allahabad
High Court filed against the order dated 10.08.1980—
Dismissed—Special Leave Petition filed before the
Supreme Court—Liberty given to seek fresh reference
of the dispute to labour court—Process under
Industrial Disputes Act, 1947 invoked—Reference made
809 810S.P. Arya v. Union of India & Ors. (S. Muralidhar, J.)
to CGIT—CGIT passed award dated 16.06.1998—Award
of CGIT challenged through the Writ Petition—Held—
General attitude of petitioner was that of defiance -
decision to dispense with holding of an enquiry not
taken in a hurry-Concurred with CGIT—Petition
dismissed.
The requirement under Clause (2) of Regulation 39 is that
before imposing any penalty on an employee under sub-
clauses (b) to (g) of Clause (1) of Regulation 39,which
includes removal from service, the employee should be
communicated the charges in writing and be given a
reasonable opportunity of defending himself against the
charges. He has also to be issued a show cause against the
action proposed to be taken against him. This in effect
would mean two show cause notices; one prior to the
commencement of the enquiry and the second prior to the
imposition of the penalty. The exception to the above
requirement is Clause (4) of Regulation 39, in terms of
which the authority can dispense with the holding of the
enquiry provided he records reasons in writing that it is not
reasonably practicable to follow the procedure under
Regulation 39 (1) read with Regulation 39 (2). (Para 13)
Important Issue Involved: Under Regulation 39 LIC (staff)
Regulations 1960 before imposing any penalty on an
employee two show cause notices-one prior to the
commencement of enquiry and the second prior to imposition
of penalty have to be issued. And for dispensing with holding
of enquiry reasons have to be recorded in writing.
[Vi Gu]
APPEARANCES:
FOR THE PETITIONERS : Mr. R.K. Saini Advocate with Mr.
Sitab Ali Choudhary, Advocates.
Indian Law Reports (Delhi) ILR (2011) VI Delhi
FOR THE RESPONDENTS : Mr. Kamal Mehta, Advocate for R-
3 LPA of India None for R-1/UOI.
CASES REFEREED TO:
1. Satyavir Singh vs. Union of India AIR 1986 SC 555.
2. Union of India vs. Tulsi Ram Patel AIR 1985 SC 1416.
RESULT: Petition dismissed.
S. MURALIDHAR, J.
1. The Petitioner challenges an Award dated 16th June 1990 passed
by the Central Government Industrial Tribunal (‘CGIT’) in ID No. 112
of 1990 upholding the validity of the action of Respondent No. 3, Life
Insurance Corporation of India (‘LIC’), in removing the Petitioner from
service with effect from 11th August 1980.
2. The Petitioner joined the services of the LIC on 4th December
1963 as an Office Assistant. The service conditions of the Petitioner
were covered by the Life Insurance Corporation of India (Staff)
Regulations 1960 (‘Staff Regulations’) framed under Section 49 (2) (b)
and (bb) of the Life Insurance Corporation of India Act, 1956 (‘LIC
Act’). The Petitioner states that he was an active trade union member
and the General Secretary of the Meerut Division of the Insurance
Employees Union. He was also at one time its President. The Petitioner
states that in April 1975 while he was Joint Secretary of the Central Zone
Insurance Employees Federation he brought to the notice of the Zonal
Manager (‘ZM’) certain irregularities and abuse of authority by the then
Divisional Manager (‘DM’). The dismissal of the Petitioner after a show
cause notice-cum-charge sheet issued by the DM was revoked in 1977
and the Petitioner was reinstated with consequential benefits. In June
1977, the Petitioner went on a hunger strike protesting against the excesses
of the management in suspending a number of other officers and workmen.
Subsequently the cases against the workmen were withdrawn. According
to the Petitioner the agitation annoyed the management.
3. In 1978 there were massive floods in north India. On account
of the management not acceding to the demand of the LIC employees for
flood advance, a ‘work to rule’ was observed by the workmen and
various unions for two days in the first week of November 1978. The
Petitioner states that he played an important role in this agitation as a
trade union activist. The Petitioner states that as a result he was arbitrarily
transferred from Meerut to Mhow in Madhya Pradesh by an order dated
27th November 1978. Seven employees who happened to be the office
bearers of the trade union, excluding the Petitioner, were issued charge
sheets on 28th November, 1978 and were placed under suspension. The
Petitioner states that he had gone on casual leave in the first half of 27th
November 1978 and then from 28th November to 2nd December 1978.
He claims to have been undergoing medical treatment on account of
which he had to get his leave extended. Consequently, he was not able
to receive the transfer order and learnt of it from a newspaper report of
13th December 1978 while he was still bedridden. The Petitioner maintains
that he was not officially conveyed the orders of the management that
he should report for duty at Mhow in Madhya Pradesh. He claims to
have been sending the management the medical certificates justifying his
seeking leave on medical grounds.
4. The case of the LIC is that the Petitioner did not comply with
the repeated orders issued by the Divisional Office at Meerut asking him
to join duties at the branch office at Mhow before 30th December, 1978.
LIC maintains that the Petitioner came to know of the transfer order on
27th November 1978 itself but left the office by submitting a leave
application for half a day thus avoiding service of the transfer order on
him. He extended his leave up to 2nd December, 1978. However, he kept
visiting the office, addressing meetings and organising demonstrations.
At 4 pm on 29th November 1978 the Petitioner along with an advocate
met the DM and pressed him for withdrawal of the transfer order. When
the DM did not agree he was threatened with dire consequences including
physical injury to him personally and to the members of his family. On
the same day at about 7 pm the Branch Manager (C&S) was sought to
be manhandled but somehow the situation was averted by the arrival of
a police mobile van. Thereafter two communications were sent to the
Petitioner’s residential address by the LIC by registered post. These were
returned by the postal authorities undelivered with the remark ‘‘avoided
to take’’. The orders were also displayed on the notice board of the
Divisional Office on 2nd December, 1978 in accordance with the
procedure prescribed in the Staff Regulations. The DM published the
811 812S.P. Arya v. Union of India & Ors. (S. Muralidhar, J.)
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information about the transfer of the Petitioner in the daily newspaper.
By a letter dated 22nd December, 1978 the Petitioner was directed to join
duty at the branch office at Mhow before 30th December, 1978. The
same letter made it clear to the Petitioner that if he failed to join as
directed he would expose himself to disciplinary action. This letter was
received by the Petitioner on 24th December, 1978. However, he did not
comply with the order and kept addressing leave applications to the
Divisional Office at Meerut. The DM addressed letters dated 30th
December, 1978 and 25th January 1979 directing the Petitioner to address
leave applications to the DM at Indore where his services had been
transferred. Nevertheless, the Petitioner continued addressing leave
applications to the DM at Meerut. Another registered letter was addressed
to the workman on 5th February 1979 asking him to join duty at Mhow.
This letter was received by the Petitioner on 9th February 1979 but he
did not comply with the order. Another letter was issued to them on 21st
August 1979 which was received by the Petitioner on 22nd September,
1979 but he continued to defy the orders.
5. Since the Petitioner was pleading illness, the DM at Indore
constituted a panel of medical examiners headed by Dr RK Aggarwal of
the Medical College Meerut to examine the Petitioner. By letter dated 15th
February 1980 he directed the Petitioner to appear before the said panel
on 17th March 1980. The Petitioner by his letter dated 23rd March, 1980
claimed that he had received the information only on 19th March, 1980
and therefore could not appear before the panel. Dr Aggarwal again fixed
the date of medical examination as 11th April 1980 and informed the
Petitioner of that date both by telegram and by a letter dated 31st March
1980. This was received by the Petitioner, but he challenged the
constitution of the panel and refused to appear before it.
6. The ZM by order dated 26th April 1980 modified the transfer
order and asked the Petitioner to report for duty at Panipat, a place nearer
to Meerut. However even this modified order was not complied with by
the Petitioner. By letter dated 15th May 1980 the Petitioner was directed
to report for duty at Panipat within seven days. He was alternatively
asked to get in touch with Dr Aggarwal for medical examination if he
was still pleading sickness. The Petitioner did neither. He instead resorted
to a hunger strike and submitted a fitness certificate dated 21st May
1980.
7. A detailed order was passed by the ZM on 21st June 1980
concluding that it was not reasonably practicable to follow the procedure
laid down in Regulation 39 of the Staff Regulations and to hold an
enquiry. He accordingly ordered that a charge sheet-cum-show cause
notice should be issued to the Petitioner proposing the penalty of removal
from service under Regulation 39 (1) (f). The charge sheet stated that
the Petitioner had committed gross breach of discipline, defied office
orders, disobeyed lawful orders of competent authorities, knowingly done
things detrimental to the interests of the LIC and acted in a manner
prejudicial to good conduct thereby violating the provisions of Regulations
21 and 39 (1) of the Staff Regulations. The Petitioner was asked to reply
to the show cause notice within ten days. The Petitioner kept seeking
time to reply to the show cause notice which time was extended
periodically. Despite numerous opportunities the Petitioner did not file
any reply. By a letter dated 23rd July, 1980 he sought time till 16th
August, 1980 and asked for a copy of the establishment manual, copies
of the circulars regarding transfers and a copy of the report of Dr
Aggarwal. These documents were not relevant for the Petitioner to file
his reply. Moreover since the Petitioner had not appeared before Dr
Aggarwal’s panel there was no question of giving him a copy of any
report of such panel.
8. By the impugned order dated 11th August 1980 the ZM, after
discussing the charges and the documents in support thereof, imposed
on the Petitioner the punishment of removal from service under Regulation
39 (1) (f) of the Staff Regulations. On 10th October 1980 the Petitioner
preferred an appeal against the said order. The Managing Director of
LIC, after considering the Petitioner’s appeal, dismissed it by a speaking
order dated 20th June 1981. The Petitioner then preferred a memorial to
the Chairman on 8th July, 1981 in which he inter alia prayed for a lenient
view to be taken and undertook “to completely eschew violence of any
sort and intimidating tactics even as part of m association with trade
union activities or otherwise.” In a further letter dated 23rd September
1991 the Petitioner tendered his apology for the incident and assured to
maintain discipline in the office.’’
9. Initially, against the order dated 10th August, 1980 the Petitioner
813 814S.P. Arya v. Union of India & Ors. (S. Muralidhar, J.)
Indian Law Reports (Delhi) ILR (2011) VI Delhi
filed a writ petition in the Allahabad High Court. Against the dismissal of
the said writ petition the Petitioner filed a Special Leave Petition (‘SLP’)
in the Supreme Court. While dismissing the SLP the Supreme Court gave
liberty to the Petitioner to seek a fresh reference of the dispute to the
Labour Court. It appears that thereafter the Petitioner invoked the processes
under the Industrial Disputes Act, 1947 (‘ID Act’) and a reference was
made to the CGIT. The impugned Award dated 16th June 1998 of the
CGIT was challenged in the present petition in which this Court issued
rule on 28th January 2000. Subsequently, the writ petition was permitted
to be amended.
10. Mr RK Saini learned counsel for the Petitioner first assailed the
transfer order dated 27th November 1978 as being mala fide and issued
only with a view to punish the Petitioner for espousing the just causes
of the workmen. This plea was examined by the CGIT and found to be
without substance. The narration of facts shows that the management
was in fact not rigid about the place of transfer. After unsuccessfully
trying to get the Petitioner to comply with the transfer order dated 27th
November 1978 the ZM issued another order on 26th April 1980 asking
the Petitioner to report at the Panipat office of the LIC which was nearer
to Meerut. This effectively negates the plea that the transfer of the
Petitioner was actuated by malice. On the other hand, there was sufficient
material on record before the CGIT to show that the Petitioner deliberately
avoided service of the transfer order dated 27th November 1978. Later,
he kept sending representations to the DM at Meerut and defied the
orders of transfer. When a medical board was constituted, the Petitioner
failed to appear before it despite the dates being fixed twice. The Petitioner
thus failed to avail of the opportunity to establish his medical condition,
which was the principal reason pleaded by him for not complying with
the transfer order. When later he was transferred to Panipat he continued
to remain absent without justification. He was given one more chance at
that stage to get in touch with Dr Aggarwal for medical examination.
This too he did not do. In fact he himself produced a fitness certificate
and yet did not report for duty at Panipat. This court finds no error in
the analysis of the evidence by the CGIT and its conclusions on this
aspect. The Petitioner has been unable to offer any satisfactory explanation
for his inability to report for duty, during the period of two years after
27th November 1978, either at Mhow or at Panipat. This brazen defiance
of the orders issued to the Petitioner to report for duty was a gross act
of indiscipline. The Petitioner had sufficient opportunity even before the
CGIT to produce medical certificates to justify his staying away from the
enquiry. He appears to have not been successful in proving that case
before the CGIT. This Court obviously cannot re-appreciate the evidence.
On this aspect the impugned Award cannot be said to be perverse or
contrary to the evidence on record.
11. Mr Saini fervently urged that a major penalty like removal of an
employee from service could not have been awarded without a proper
enquiry. He assailed the order dated 21st June 1980 passed by the ZM
opining that it was not reasonably practicable to hold an enquiry in terms
of Regulation 39 (4) (ii). Relying on the decisions of the Supreme Court
in Union of India v. Tulsi Ram Patel AIR 1985 SC 1416 and Satyavir
Singh v. Union of India AIR 1986 SC 555, it was submitted that the
reasons adduced by the ZM for dispensing with the enquiry were not
justified or reasonable. He submitted that the ZM had cited the very
reasons for removal of the Petitioner from service as the reasons for not
holding the enquiry and therefore the requirement of Regulation 39 (4)
was not satisfied. Further, it was incumbent on the ZM to consider
whether in the circumstances where the Petitioner was unable to report
for duty on account of his medical condition, an enquiry could be held
even at a later point in time when he was found medically fit. Mr Kamal
Mehta learned counsel for the LIC on the other hand referred to the order
dated 21st June, 1980 and the finding of the CGIT thereon and submitted
that the ZM was justified in his conclusion that it was not reasonably
practicable to hold an enquiry in terms of the procedure under Regulation
39.
12. Regulation 39 of the Staff Regulations reads as under:
‘‘Penalties 39. (1) Without prejudice to the provisions of other
regulations, [any one or more of] the following penalties for
good and sufficient reasons, and as hereinafter provided, be
imposed [by the disciplinary authority specified n Schedule] on
an employee who commits a breach of regulations of the
Corporation, or who displays negligence, inefficiency or indolence
815 816S.P. Arya v. Union of India & Ors. (S. Muralidhar, J.)
Indian Law Reports (Delhi) ILR (2011) VI Delhi
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or who knowingly does anything detrimental to the interest of
the Corporation, or conflicting with the instructions or who
commits a breach of discipline, or is guilty of any other act
prejudicial to good conduct —
(a) censure;
(b) withholding of one or more increments either permanently
or for a specified period;
(c) recovery from pay or such other amount as may be due
to him of the whole or part of any pecuniary loss caused
to the Corporation by negligence or breach of orders;
(d) reduction to a lower service, or post, or to a lower time-
scale, or to a lower stage in a time-scale; (e) compulsory
retirement;
(f) removal from service which shall not be a disqualification
for future employment;
(g) dismissal.
(2) No order imposing on an employee of any of the penalties
specified in clauses (b) to (g) of sub-regulation (1) supra, shall
be passed by the disciplinary authority specified in Schedule
without the charge or charges being communicated to him in
writing and without his having been given a reasonable opportunity
of defending himself against such charge or charges and of
showing cause against the action proposed to be taken against
him.
(3) The disciplinary authority empowered to impose any of the
penalties, (b), (c), (d), (e), (f) or (g) may itself enquire into such
of the charges as are not admitted or if it considers it necessary
so to do, appoint a board of enquiry or any enquiry officer for
the purpose.
(4) Notwithstanding anything contained in sub-regulations (1)
and (2) above-
(i) where a penalty is imposed on an employee on the grounds
of conduct which had led to a conviction on a criminal charge;
or
(ii) where the authority concerned is satisfied for reasons to be
recorded in writing, that it is not reasonably practicable to follow
the procedure prescribed in this regulation; or
(iii) where an employee has abandoned his post, the disciplinary
authority may consider the circumstances of the case and pass
such orders.
Explanations 1: For the purpose of this regulation, an employee
shall be deemed to have abandoned his post if he absents himself
from duty without leave or overstays his leave for a continuous
period of ninety days without any intimation therefor in writing.
2. All communications under this regulation and copies of orders
passed thereunder may be delivered personally to the employee
if he is attending office; otherwise they shall be sent by registered
post to the address noted in the service record. Where such
communications or copies of orders cannot be served on him
personally or by registered post, copies thereof shall be affixed
on the notice board of the office in which the employee is
employed, and on such affixing such communications and orders
shall be deemed to have been properly served on him.’’
13. The requirement under Clause (2) of Regulation 39 is that
before imposing any penalty on an employee under sub-clauses (b) to (g)
of Clause (1) of Regulation 39,which includes removal from service, the
employee should be communicated the charges in writing and be given
a reasonable opportunity of defending himself against the charges. He has
also to be issued a show cause against the action proposed to be taken
against him. This in effect would mean two show cause notices; one
prior to the commencement of the enquiry and the second prior to the
imposition of the penalty. The exception to the above requirement is
Clause (4) of Regulation 39, in terms of which the authority can dispense
with the holding of the enquiry provided he records reasons in writing
that it is not reasonably practicable to follow the procedure under
Regulation 39 (1) read with Regulation 39 (2).
14. The narration of events indicates that numerous attempts were
817 818S.P. Arya v. Union of India & Ors. (S. Muralidhar, J.)
Indian Law Reports (Delhi) ILR (2011) VI Delhi
made by the LIC to get the Petitioner to comply with its orders of
transfer. These attempts for over a period of eighteen months from 27th
November 1978 till 21st June 1980 were unsuccessful. The Petitioner
was refusing to even submit to any medical examination. The general
attitude of the Petitioner was that of defiance. He simply was not prepared
to comply with any order whatsoever that was issued by the LIC. The
decision to dispense with the holding of an enquiry was not taken in a
hurry. It is only after waiting for more than eighteen months and after
complete frustration with every attempt at making the Petitioner report
for duty that the ZM concluded that it was not reasonably practicable to
hold an enquiry. While this also constituted the reason for the Petitioner’s
ultimate removal from service, it certainly was a valid consideration for
the decision to dispense with the holding of an enquiry. Without the
participation of the charged employee the holding of an enquiry would be
a futile exercise. This Court concurs with the CGIT that the order dated
21st June 1980 passed by the ZM was valid.
15. Mr Saini submitted that the impugned order of dismissal was
passed by the ZM whereas the Petitioner’s disciplinary authority was the
Divisional Manager. The ZM, he pointed out, was the Appellate Authority
(‘AA’). It is submitted that with the AA himself passing the order of
removal, the Petitioner was effectively denied one tier of appeal. Apart
from the fact that this plea does not appear to have been urged before
the CGIT, this Court finds that against the order of removal the Petitioner
preferred an appeal to the Managing Director. It cannot therefore be said
that the Petitioner was deprived of any right of appeal. In any event, the
Petitioner had a full innings before the CGIT as well. There is therefore
no merit in this submission either.
16. Mr Saini ultimately submitted that the punishment of removal
from service was too harsh in the facts and circumstances of the case.
This Court is unable to agree. This is indeed an extraordinary case where
an employee has defied the orders of transfer as well as the orders to
report for duty. He also did not comply with the orders to appear before
a medical board to prove his medical condition. Even after proclaiming
that he was medically fit the Petitioner continued to defy the transfer
order. The LIC obviously was left with no other option but to remove
him from service for this gross act of indiscipline. The punishment
819 820S.P. Arya v. Union of India & Ors. (S. Muralidhar, J.)
awarded by the LIC, which has been upheld by the CGIT, does not call
for interference.
17. For all the aforementioned reasons this Court finds no ground
having been made out for grant of any of the reliefs prayed for by the
Petitioner. The writ petition is dismissed, but in the circumstances, with
no order as to costs.
INDIAN LAW REPORTS
DELHI SERIES
2011(Containing cases determined by the High Court of Delhi)
GENERAL INDEX VOLUME-6
EDITOR
MR. A.S. YADAVREGISTRAR (VIGILANCE)
CO-EDITORSMS. NEENA BANSAL KRISHNA
(ADDITIONAL DISTRICT & SESSIONS JUDGES)
REPORTERS
MR. CHANDER SHEKHAR MS. ANU BAGAI
MR. TALWANT SINGH MR. SANJOY GHOSE
MR. GIRISH KATHPALIA MR. K. PARMESHWAR
MR. VINAY KUMAR GUPTA (ADVOCATES)
MS. SHALINDER KAUR MR. KESHAV K. BHATI
MR. V.K. BANSAL JOINT REGISTRAR
MR. L.K. GAUR
MR. GURDEEP SINGH
MS. ADITI CHAUDHARY
MR. ARUN BHARDWAJ
(ADDITIONAL DISTRICT
& SESSIONS JUDGES)
PUBLISHED UNDER THE AUTHORITY OF HIGH COURT OF DELHI,
BY THE CONTROLLER OF PUBLICATIONS, DELHI-110054.
INDIAN LAW REPORTS
DELHI SERIES
2011 (6)
VOLUME INDEX
LIST OF HON’BLE JUDGES OF DELHI HIGH COURT
During November-December, 2011
1. Hon’ble Mr. Justice A.K. Sikri, Acting Chief Justice
2. Hon’ble Mr. Justice Sanjay Kishan Kaul
3. Hon’ble Mr. Justice Badar Durrez Ahmed
4. Hon’ble Mr. Justice Pradeep Nandrajog
5. Hon’ble Mr. Justice Anil Kumar
6. Hon’ble Ms. Justice Gita Mittal
7. Hon’ble Mr. Justice S. Ravindra Bhat
8. Hon’ble Mr. Justice Sanjiv Khanna
9. Hon’ble Ms. Justice Reva Khetrapal
10. Hon’ble Mr. Justice P.K. Bhasin
11. Hon’ble Mr. Justice Kailash Gambhir
12. Hon’ble Mr. Justice G.S. Sistani
13. Hon’ble Dr. Justice S. Muralidhar
14. Hon’ble Ms. Justice Hima Kohli
15. Hon’ble Mr. Justice Vipin Sanghi
16. Hon’ble Mr. Justice Sudershan Kumar Misra
17. Hon’ble Ms. Justice Veena Birbal
18. Hon’ble Mr. Justice Siddharth Mridul
19. Hon’ble Mr. Justice Manmohan
20. Hon’ble Mr. Justice V.K. Shali
21. Hon’ble Mr. Justice Manmohan Singh
22. Hon’ble Mr. Justice Rajiv Sahai Endlaw
23. Hon’ble Mr. Justice J.R. Midha
24. Hon’ble Mr. Justice Rajiv Shakdher
25. Hon’ble Mr. Justice Sunil Gaur
26. Hon’ble Mr. Justice Suresh Kait
27. Hon’ble Mr. Justice Valmiki J. Mehta
28. Hon’ble Mr. Justice V.K. Jain
29. Hon’ble Ms. Justice Indermeet Kaur
30. Hon’ble Mr. Justice A.K. Pathak
31. Hon’ble Ms. Justice Mukta Gupta
32. Hon’ble Mr. Justice G.P. Mittal
33. Hon’ble Mr. Justice M.L. Mehta
34. Hon’ble Mr. Justice R.V. Easwar
35. Hon’ble Ms. Justice Pratibha Rani
36. Hon’ble Ms. Justice S.P. Garg
LAW REPORTING COUNCIL
DELHI HIGH COURT
1. Hon’ble Mr. Justice S. Ravindra Bhat Chairman
2. Hon’ble Mr. Justice Sunil Gaur Member
3. Hon’ble Ms. Justice Pratibha Rani Member
4. Mr. V.P. Singh, Senior Advocate Member
5. Mr. Maninder Singh, Senior Advocate Member
6. Mr. Mukesh Anand, Senior Counsel of Member
Union Govt. Attached to the High Court
7. Mr. V.P. Vaish, Registrar General Secretary
CONTENTS
VOLUME-6
NOVEMBER AND DECEMBER, 2011
Pages
1. Comparative Table ........................................................... (i-iv)
2. Statute Section ................................................................ (v-vi)
3. Nominal Index .................................................................... 1-4
4. Subject Index .................................................................. 1-90
5. Case Law....................................................................... 1-820
COMPARATIVE TABLE
ILR (DS) 2011 (VI) = OTHER JOURNAL
NOVEMBER AND DECEMBER
Page No. Journal Name Page No. Journal Name Page No.
1 No Equivalent
8 2011 (4) AD (Delhi) 572
17 2011 (122) DRJ 363
31 2011 (178) DLT 83 = 2011 (123) DRJ 404
82 2011 (3) AD (Delhi) 477 = 2011 Crl J 2394
82 2011 (2) JCC 1480
106 No Equivalent
133 No Equivalent
141 No Equivalent
153 2011 (178) DLT 631 = 2011 (124) DRJ 48
175 2011 (179) DLT 557 = 2011 (123) DRJ 638
175 2011 (5) AD (Delhi)
198 No Equivalent
203 2011 (5) AD (Delhi) 362 = 2011 (6) AD (Delhi) 187
216 2011 (178) DLT 671 = 2011 (4) AD (Delhi) 286
216 2011 (123) DRJ 554
243 2011 (4) AD (Delhi) 456 = 2011 (335) ITR 259
251 No Equivalent
262 No Equivalent
270 No Equivalent
277 2011 (183) DLT 66
290 2011 (181) DLT 187
319 2011 (4) R.A.J. 352 = 2011 (4) AD (Delhi) 668
319 2011 (2) Arb LR 382 = 2011 (180) DLT 511
328 2011 (3) JCC 1817
340 2011 (3) JCC 1569 = 2011 (3) Crimes 111
(ii)
354 2011 (3) JCC 1744
364 2011 (5) R.A.J. 115 = 2011 (47) PTC 129
364 2011 (8) AD (Delhi) 70
373 No Equivalent
395 2011 (3) Arb LR 26 = 2011 (126) DRJ 183
429 No Equivalent
453 2011 (179) DLT 293 = 2011 (2) JCC 1362
453 2011 (123) DRJ 666 = 2011 (5) AD (Delhi) 611
462 2011 (181) DLT 455
470 2010 (165) Comp Cas 334
515 2011 (6) AD (Delhi) 562
527 2011 (5) AD (Delhi) 792 = 2011 (3) JCC 1870
531 2011 (6) AD (Delhi) 75 = 2011 (182) AD 468
537 No Equivalent
553 No Equivalent
576 No Equivalent
584 2011 (6) AD (Delhi) 468
595 No Equivalent
605 2011 (6) AD (Delhi) 176 = 2011 (3) JCC 175 (Ni)
635 2011 (6) AD (Delhi) 1 = 2011 (3) JCC 1836
652 No Equivalent
673 No Equivalent
679 No Equivalent
686 No Equivalent
701 2011 (125) DRJ 241 = 2011 (8) AD (Delhi) 265
729 2011 (181) DLT 658 = 2011 AIR (DEL) 174
729 2011 (124) DRJ 633
759 No Equivalent
789 2011 (6) AD (Delhi) 505
795 No Equivalent
808 2011 (7) AD (Delhi) 212(i)
COMPARATIVE TABLE
OTHER JOURNAL = ILR (DS) 2011 (VI)
NOVEMBER AND DECEMBER
Journal Name Page No. = ILR (DS) 2011 (VI) Page No.
2011 (2) Arb LR 382 = ILR (DS) 2011 (VI) 319
2011 (3) Arb LR 26 = ILR (DS) 2011 (VI) 395
2011 (4) AD (Delhi) 572 = ILR (DS) 2011 (VI) 8
2011 (3) AD (Delhi) 477 = ILR (DS) 2011 (VI) 82
2011 (5) AD (Delhi)` = ILR (DS) 2011 (VI) 175
2011 (5) AD (Delhi) 362 = ILR (DS) 2011 (VI) 203
2011 (6) AD (Delhi) 187 = ILR (DS) 2011 (VI) 203
2011 (4) AD (Delhi) 286 = ILR (DS) 2011 (VI) 216
2011 (4) AD (Delhi) 456 = ILR (DS) 2011 (VI) 243
2011 (4) AD (Delhi) 668 = ILR (DS) 2011 (VI) 319
2011 (8) AD (Delhi) 70 = ILR (DS) 2011 (VI) 364
2011 (5) AD (Delhi) 611 = ILR (DS) 2011 (VI) 453
2011 (6) AD (Delhi) 562 = ILR (DS) 2011 (VI) 515
2011 (5) AD (Delhi) 792 = ILR (DS) 2011 (VI) 527
2011 (6) AD (Delhi) 75 = ILR (DS) 2011 (VI) 531
2011 (182) AD 468 = ILR (DS) 2011 (VI) 531
2011 (6) AD (Delhi) 468 = ILR (DS) 2011 (VI) 584
2011 (6) AD (Delhi) 176 = ILR (DS) 2011 (VI) 605
2011 (6) AD (Delhi) 1 = ILR (DS) 2011 (VI) 635
2011 (8) AD (Delhi) 265 = ILR (DS) 2011 (VI) 701
2011 (6) AD (Delhi) 505 = ILR (DS) 2011 (VI) 789
2011 (7) AD (Delhi) 212 = ILR (DS) 2011 (VI) 808
2011 AIR (DEL) 174 = ILR (DS) 2011 (VI) 729
2010 (165) Comp Cas 334 = ILR (DS) 2011 (VI) 470
2011 (3) Crimes 111 = ILR (DS) 2011 (VI) 340
2011 Crl J 2394 = ILR (DS) 2011 (VI) 82
2011 (178) DLT 83 = ILR (DS) 2011 (VI) 31
2011 (178) DLT 631 = ILR (DS) 2011 (VI) 153
2011 (179) DLT 557 = ILR (DS) 2011 (VI) 175
2011 (178) DLT 671 = ILR (DS) 2011 (VI) 216
2011 (183) DLT 66 = ILR (DS) 2011 (VI) 277
2011 (181) DLT 187 = ILR (DS) 2011 (VI) 290
2011 (180) DLT 511 = ILR (DS) 2011 (VI) 319
2011 (179) DLT 293 = ILR (DS) 2011 (VI) 453
2011 (181) DLT 455 = ILR (DS) 2011 (VI) 462
2011 (181) DLT 658 = ILR (DS) 2011 (VI) 729
2011 (122) DRJ 363 = ILR (DS) 2011 (VI) 17
2011 (123) DRJ 404 = ILR (DS) 2011 (VI) 31
2011 (124) DRJ 48 = ILR (DS) 2011 (VI) 153
2011 (123) DRJ 638 = ILR (DS) 2011 (VI) 175
2011 (123) DRJ 554 = ILR (DS) 2011 (VI) 216
2011 (126) DRJ 183 = ILR (DS) 2011 (VI) 395
2011 (123) DRJ 666 = ILR (DS) 2011 (VI) 453
2011 (125) DRJ 241 = ILR (DS) 2011 (VI) 701
2011 (124) DRJ 633 = ILR (DS) 2011 (VI) 729
2011 (335) ITR 259 = ILR (DS) 2011 (VI) 243
2011 (2) JCC 1480 = ILR (DS) 2011 (VI) 82
2011 (2) JCC 1362 = ILR (DS) 2011 (VI) 453
2011 (47) PTC 129 = ILR (DS) 2011 (VI) 364
2011 (4) R.A.J. 352 = ILR (DS) 2011 (VI) 319
2011 (5) R.A.J. 115 = ILR (DS) 2011 (VI) 364
2011 (3) JCC 1817 = ILR (DS) 2011 (VI) 328
2011 (3) JCC 1569 = ILR (DS) 2011 (VI) 340
2011 (3) JCC 1744 = ILR (DS) 2011 (VI) 354
2011 (3) JCC 1870 = ILR (DS) 2011 (VI) 527
2011 (3) JCC 175 (Ni) = ILR (DS) 2011 (VI) 605
2011 (3) JCC 1836 = ILR (DS) 2011 (VI) 635
(iv)
(iiii)
HIGH COURT OF DELHI : NEW DELHI
NOTIFICATION
Delhi, the 24th November, 2011
No. 514/Rules/DHC.— In exercise of the powers conferred by
Section 7 of the Delhi High Court Act, 1966 (Act 26 of 1966) and all
other powers enabling it in this behalf, the High Court of Delhi, hereby
makes the following amendment in Part A(a) of Chapter 1 of Volume V
of the Delhi High Court Rules & Orders :—
THE FOLLOWING SHALL BE INTRODUCED AS RULE 11A
AFTER THE EXISTING RULE 11 OF PART A(a) OF CHAPTER 1 OF
DELHI HIGH COURT RULES AND ORDERS, VOLUMES V :
“11A Payment and refund of court fees etc. by electronic means—
In addition to the existing modes, payment and refund of court fees,
costs and other charges can be effected by electronic means.
Explanation : For the purposes of this Rule, “Payment and refund
by electronic means” includes payment and refund through an electronic
payment gateway, debit card, credit card, cash card, wire transfer, on-
line payment or any other recognized mode of electronic payment.”
By Order of the Court,
V.P. VAISH, Registrar General
Note : This amendment shall come into force from the date of
its publication in the Gazette.
(v)
Chugh Kathuria Engineers (P) Ltd. v. Delhi
Development Authority (DDA) ...................................................... 395
Commissioner of Income Tax v. M/s. Mediworld
Publications Pvt. Ltd. ..................................................................... 203
Commissioner of Income Tax v. M/s. SAS Pharmaceuticals .............. 243
“D”
Delhi Development Authority v. Hans Raj Batheja ................................ 141
Delhi Metro Rail Corporation Ltd. v. Samrat Ranga and Ors. .............. 595
Deepti Mandlaus v. State (Govt. of NCT of Delhi) and Anr. ............... 453
Devendra Kumar v. Govt. of NCT of Delhi and Ors. .......................... 290
Dharambir & Anr. v. State .................................................................... 686
“F”
Faheem Ahmed v. Maviya @ Luxmi ..................................................... 216
Fitzee Ltd. v. Brilliant Tutorials (P.) LTd. ................................................ 8
“I”
IHHR Hospitality Pvt. Ltd. v. Bestech India Pvt. Ltd. .......................... 364
Indian Associates v. The State and Others ........................................... 153
“J”
Jaipal v. State ......................................................................................... 553
Jindal Stainless Limited & Anr. v. Union of India & Ors. .................... 373
1
NOMINAL-INDEX
VOLUME-VI, PART-II
NOVEMBER AND DECEMBER, 2011
“A”
Akbari Begum & Ors. v. State .............................................................. 328
Anand Prakash v. The Delhi State Co-Operative Bank Ltd. & Anr. ..... 251
Anil Kumar Sharma @ Bobby v. Delhi State/NCT Delhi ........................ 82
Anita Devi & Others v. United India Assurance Co. Ltd. & Ors. ........ 673
Arti Jethani v. Daehsan Trading (India) Pvt Ltd. & Ors. ..................... 319
Ashok Chachra v. The State .................................................................. 789
“B”
BSES Rajdhani Power Ltd. v. Union of India & Ors. ........................... 429
Babu Lal & Ors. v. Mahavir Singh @ Mahvir Prashad & Ors. ............ 270
Bharat Vats v. Garima Vats ................................................................... 198
Bhole Baba Dairy Industries Ltd. v. Union of India and Ors. ............... 537
Bijay v. The State (G.N.C.T. of Delhi) ................................................. 515
Braham Prakash Dutta and Anr. v. Railway Protection Force
and Ors. ......................................................................................... 576
“C”
C.S. Agarwal v. State & Ors. ............................................................... 701
Chamno Devi v. Smt. Usha & Ors. ...................................................... 133
2
“K”
K.L. Chandak v. Mr. Jai Chand & Ors. .................................................. 17
M/s. Krizm Hotels Private Limited v. M/s. Vaishnavi Estates
(P) Ltd. ........................................................................................... 759
“M”
M. Arun Ahluwalia v. Arun Oberoi & Anr. ........................................... 605
M. K. Sharma and Anr. v. Shri SH Tek Chand and Others ................. 652
“N”
North Delhi Power Ltd. v. Surender Kumar ......................................... 584
“R”
R.D. Gupta & Ors. v. D.T.C. & Anr. ................................................... 277
R.K.P. Nishad v. C.B.I. ......................................................................... 635
Rajesh Kr. Chaturvedi v. Union of India & Ors. ................................... 106
Rajiv Goela and Anr. v. Delhi Development Authority ............................ 1
“S”
S.K. Mitra v. Asst. General Manager State Bank of India .................... 262
S.P. Arya v. Union of India & Ors. ...................................................... 808
Satpal Singh v. Delhi Sikh Gurdwara Management Committee
& Anr. ........................................................................................... 462
Spice Communications Limited & Anr. ................................................ 470
State (Govt. of NCT of Delhi) v. Girdhari LaL Verma......................... 354
State GNCT of Delhi v. Mukesh ........................................................... 340
State v. Sunil Dutt ................................................................................. 679
M/s Sterling Agro Industries Ltd. v. Union of India & Ors. ................ 729
Suresh Kalmadi (In Judicial Custody) v. Union of India
& Ors. ........................................................................................... 795
Susan Leigh Beer v. India Tourism Development Corporation Ltd. ....... 31
Swaran Singh v. State ........................................................................... 527
“Y”
Yogender Kumar & Another v. Ram Kishan Gupta and Anr. ............... 531
Yogesh Duggal & Ors. v. State & Ors. ................................................ 175
43
SUBJECT-INDEX
VOLUME-VI, PART-II
NOVEMBER AND DECEMBER, 2011
ARBITRATION ACT, 1940—Section 30 and 33—Indian
Contract Act, 1872—Section 15 and 16—Code of Civil
Procedure, 1908—Section 34, Order IX Rule 8, Order VI Rule
4—Petitioner was allotted work of construction of flats—
Disputes between parties referred to sole arbitrator—Award
rendered by arbitrator challenged before High Court—As
arbitrator had failed to consider a letter of petitioner accepting
responsibility for delay in execution of work, award partly set
aside and new arbitrator appointed to decide claims—Arbitrator
held delay in completion was on part of respondent—Award
challenged before High Court—Plea taken, impugned order is
not based on any evidence placed before arbitrator and that
there is an error apparent on face of award—There was no
pleading to support story that letter admitting delay was
obtained from petitioner under duress or coercion—Per contra
plea taken, arbitrator had considered evidence and concluded
delay was attributable to respondent at various stages of
work—Held—A plea of coercion or undue influence or duress
has necessarily to be specifically raised and pleaded as a fact—
Though Code of Civil Proceedure is not strictly applicable to
arbitral proceedings, Principles thereof, which are evolved to
achieve fairness in proceedings, are attached even to arbitral
proceedings—To permit a party to arbitration proceeding to
raise oral plea of ‘‘coercion’’ or ‘‘duress’’ or ‘‘undue
influence’’, would cause irreparable injustice to opposite party
as opposite party would be put to grave disadvantage in dealing
with such a vague and indefinite plea which is devoid of
particulars and specifics—Grant of extension of time by
respondent, till date of abandonment, cannot necessarily lead
to conclusion that delay was attributable to respondent, and
not petitioner—A party to a contract has option to accept
breach thereof by opposite party and require opposite party
to still complete contract—It is not that whenever there is
breach of contract by one party, opposite party should rescind
contract—Claim for tools & plants stationed at site for
prolonged period made rule of Court—Arbitrator appointed to
reconsider claims for expenses incurred for delayed work/
losses suffered by petitioner due to contract getting prolonged.
M/s. Chugh Kathuria Engineers (P) Ltd. v.
Delhi Development Authority (DDA) ........................... 395
ARBITRATION AND CONCILIATION ACT, 1996—Section
8—Petition filed by defendant for referring disputes raised by
plaintiff for arbitration after four weeks of filing Written
Statement—Plea taken, defendant had already pleaded in
written statement that there is arbitration agreement between
parties and this Court has no jurisdiction to adjudicate instant
suit—Applicants did not submit to jurisdiction of Civil Court
and application is maintainable even after filing of written
statement—Held—Defendants have already filed their Written
Statement and have disclosed their entire defence in main
proceedings and not in supplemental proceedings—Application
for referring disputes for Arbitration would be maintainable if
applicant had not filed his first statement on substance of
dispute—But when Written Statement is filed, it can hardly
be disputed that applicant has submitted not only first but
whole of his statement on dispute between parties. Mere
disclosure of arbitration agreement in Written Statement and
claiming civil Court has no jurisdiction to try suit would be
of no consequence unless Written Statement itself contains a
prayer for referring dispute for arbitration—Jurisdiction of
Civil Court is not ousted on account of arbitration agreement
between parties—It is ousted because of application filed under
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Section 8 of Act, provided it otherwise confirms to
requirements laid down in Section.
Arti Jethani v. Daehsan Trading (India) Pvt
Ltd. & Ors. .................................................................... 319
BAR COUNCIL OF DELHI ELECTION RULES, 1968
(RULES)—Rule 31(A)(ii)—Consitutional Validity—Petitioner
secured maximum number of first preference votes amongst
the unsuccessful candidates in the election to Bar Council of
Delhi—A casual vacancy occurred—Petitioner’s
representation for co-opting him as member was rejected—
Present writ petition was filed on grounds that Rule 31(A)(ii)
was unconstitutional—No intelligible differentia between two
vacancies, caused when election is set aside and arising out
of death or resignation- co-option procedure to be followed
to fill both kind of vacancy by candidate who has secured
maximum first preference votes amongst unsuccessful
candidate—Respondents contended that nature of vacancies
are different—Method of co-option is to aviod re-election—
Inclusion of next man in different circumstances does not
invite wrath of equality clause. Held—Rule 31(A)(ii) is
constitutionally valid—Co-option is a permissible method for
filling casual vacancy the Rule confers power on electoral
college and not all voters to co-opt a member—Conferment
of such power is not arbitrary—Involvement of larger body
for co-option is unacceptable—Only qualification for being co-
opted-enumerated under Rule 7 and 7A of Rules.
Devendra Kumar v. Govt. of NCT of Delhi
and Ors. .......................................................................... 290
CENTRAL EXCISE ACT, 1994—Section 37B—Payment of
whole service tax exempted on services provided to a
Developer or Units of SEZ by any service provider, for
purpose of development, operation and maintenance of SEZ
or for setting up of a SEZ unit or for manufacture of goods
by SEZ Units, on satisfaction of certain conditions—Impugned
circular clarified that service tax is exempted on provision of
only such services which are rendered by service providers
to Developer or Unit for its authorized operation within area
of SEZ—Circular challenged in writ petition before High Court
—Plea taken, only condition required for availing exemption
from payment of service tax by a Developer/Entrepreneur is
that taxable service should be used for carrying on authorized
operations by Developer/Entrepreneurs—Location of service
provider or place of service is entirely irrelevant for purpose
of this exemption—Per contra plea taken, service tax
exemption is available only for services which are provided
to carry on authorized operation in a SEZ—Held—Only
condition that is required to be satisfied to avail service tax
benefit is that services must be rendered for purpose of
carrying out ‘‘authorized operations in a special economic
zone’’—If intention of legislature was to exempt only those
services from levy of service tax that are rendered within SEZ,
legislature would have categorically stated so in statute—A
subordinate legislation has to confirm to parent statute and any
subordinate legislation inconsistent to provisions of parent
statute is liable to be set aside—Circulars being executive/
administrative in character cannot supersede or override Act
and statutory Rules—Impugned circular seeks to impose a
condition that was not intention of legislature in SEZ Act or
Rules and is liable to be set aside.
M/s. Jindal Stainless Limited & Anr. v. Union of
India & Ors. .................................................................. 373
CODE OF CIVIL PROCEDURE, 1908—Order XXXIX, Rule
1 & 2—Suit for permanent injunction for restraining defendant
no.1 from poaching faculty members of defendant no. 1 or
from instigating them to quit the plaintiff company and join
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them—Defendant objected that injunction claimed would have
the effect of curtailing the freedom given to its employees to
improve their future prospects and service conditions—Held—
There is no contract between the plaintiff company and
defendant no. 1 company not to poach on the employees of
each other—In the absence of any such contract, nothing in
law prevented defendant no. 1 company from approaching the
employees of plaintiff company and offering better service
conditions to them—Therefore, it cannot be said that any legal
injury was caused to the plaintiff-company by the alleged
poaching or any legal right, vesting in the plaintiff-company,
was violated by defendant No.1 company—Suit dismissed with
cost.
Fitzee Ltd. v. Brilliant Tutorials (P.) LTd. ..................... 8
— Section 34, Order IX Rule 8, Order VI Rule 4—Petitioner was
allotted work of construction of flats—Disputes between
parties referred to sole arbitrator—Award rendered by
arbitrator challenged before High Court—As arbitrator had
failed to consider a letter of petitioner accepting responsibility
for delay in execution of work, award partly set aside and
new arbitrator appointed to decide claims—Arbitrator held
delay in completion was on part of respondent—Award
challenged before High Court—Plea taken, impugned order is
not based on any evidence placed before arbitrator and that
there is an error apparent on face of award—There was no
pleading to support story that letter admitting delay was
obtained from petitioner under duress or coercion—Per contra
plea taken, arbitrator had considered evidence and concluded
delay was attributable to respondent at various stages of
work—Held—A plea of coercion or undue influence or duress
has necessarily to be specifically raised and pleaded as a fact—
Though Code of Civil Proceedure is not strictly applicable to
arbitral proceedings, Principles thereof, which are evolved to
achieve fairness in proceedings, are attached even to arbitral
proceedings—To permit a party to arbitration proceeding to
raise oral plea of ‘‘coercion’’ or ‘‘duress’’ or ‘‘undue
influence’’, would cause irreparable injustice to opposite party
as opposite party would be put to grave disadvantage in dealing
with such a vague and indefinite plea which is devoid of
particulars and specifics—Grant of extension of time by
respondent, till date of abandonment, cannot necessarily lead
to conclusion that delay was attributable to respondent, and
not petitioner—A party to a contract has option to accept
breach thereof by opposite party and require opposite party
to still complete contract—It is not that whenever there is
breach of contract by one party, opposite party should rescind
contract—Claim for tools & plants stationed at site for
prolonged period made rule of Court—Arbitrator appointed to
reconsider claims for expenses incurred for delayed work/
losses suffered by petitioner due to contract getting prolonged.
M/s. Chugh Kathuria Engineers (P) Ltd. v.
Delhi Development Authority (DDA) ........................... 395
— Order XLI Rule 4—Maintainability of Appeal if all the legal
representatives are not impleaded—Respondent’s suit for
possession—Decreed—Appeal filed by only one legal
representative without impleading other legal representatives
was allowed by the Appellate Court—Same challenged in
second appeal. Held—Order XLI Rule 4 of the Code permits
one of the several plaintiffs or one of the several defendants
to obtain a reversal of the whole decree—Therefore even
assuming that the decree was against all the legal
representatives—Appeal filed by one legal was competent—
Further under Rule 33—Appellate Court has wide powers to
pass any decree and to make any order notwithstanding that
the appeal has been filed only by one person—Decree can be
passed against those respondents as well who have not filed
109
any appeal or objection—Condition being that they must be
parties to the suit.
Mr. K.L. Chandak v. Mr. Jai Chand & Ors. ............... 17
— Suit for declaration & Permanent Injunction—This appeal has
impugned the judgment and decree dated 05.3.2007 which had
endorsed the finding of the trial judge dated 20.7.2005 whereby
the suit filed by the plaintiff seeking a declaration and
permanent injunction to the effect that the plaintiff is the owner
of the property and the defendant be restrained from
interfering in the peaceful possession of the plaintiff, had been
dismissed—The plaintiff was in possession of the suit
property—She is a plaintiff had married Nek Ram—Nek
Ram’s whereabouts were not known for last 16 years—
Defendant No.1 came in contact with the plaintiff about 15
years ago—The Plaintiff and the defendant No.1 thereafter got
married—Defendant no.1 did not disclose that he was already
married to one Satyawati and had children from the said
marriage—The fact came to the knowledge of the plaintiff
only in the year 1981—Defendant No.1 had played a fraud
upon her with an ulterior motive to grab her property—By
way of present suit plaintiff had sought decree of declaration
that the plaintiff is the owner of the suit property; permanent
injunction had also been sought restraining the defendant from
interfering in her peaceful possession—Defendant had denied
the version of the plaintiff—It was stated that the plaintiff was
tenant of the defendant no.1—The Court had disbelieved the
version set up by the plaintiff; suit was dismissed—This was
endorsed in the first appeal—Second appeal filed no perversity
has been pointed out—Except two statements no evidence
adduced by appellant to show that property was purchased
benami from her money by defendant No.1 in the name of
defendant No.2—Appeal dismissed.
Babu Lal & Ors. v. Mahavir Singh @ Mahvir
Prashad & Ors. .............................................................. 270
— Order 39, Rule 1 & 2—Permanent Injunction—Trade Marks
Act, 1999—Deceptive similarity—Plaintiff owning and
managing destination spas, luxury business leisure hotels in
India and abroad providing services under Trade Mark and
Service Mark ‘Ananda’—Pre-launch advertising campaign of
residential complex under name ‘Park View Ananda’ launched
by defendant for promoting residential complexes—Claim of
plaintiff that defendant adopted well known mark ‘Ananda’
to create association with plaintiff’s properties and to ride on
goodwill and reputation of plaintiff—Held, difficult to accept
that trade mark ‘Ananda’ had become a well known trade
mark or that it came to be associated exclusively with
plaintiff’s company so as to indicate a connection with the
plaintiff company—No material on record to show that the
mark ‘Ananda’ had acquired such a high brand equity in India
that its use by persons other than plaintiff would dilute its
reputation—Difficult to say that word ‘Ananda’ had become
distinctive with plaintiff company— No evidence of any legal
proceedings having been initiated by the plaintiff company
against registration and/or user of ‘Ananda’ by others—Goods
and services of defendant in wholly unrelated category
compared to plaintiff—Plaintiff failed to make out prima facie
case for grant of injunction against defendant—Application
dismissed.
IHHR Hospitality Pvt. Ltd. v. Bestech India
Pvt. Ltd. .......................................................................... 364
— Order XXXIII, Suit as an indigent person seeking damages—
Plaintiff injured while jumping and slipping into swimming pool
of hotel managed and maintained by Defendant—Said injury
resulted in Plaintiff becoming a quadriplegic—Injury allegedly
due to negligence of Defendant in maintenance of Swimming
Pool—Tiles of floor of swimming pool slippery because of
algae formation—Plaintiff jumped in, feet slipped on floor and
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head hit wall of pool—Hence instant suit filed for damages
of Rs. 2 crores.
Susan Leigh Beer v. India Tourism Development
Corporation Ltd. ............................................................... 31
— Suit filed by duly authorised person—Power of attorney
granted to Plaintiff's father—Suit instituted as indigent
person—Application presented by father of Plaintiff—Plaintiff
exempted from presentation of application in person vide order
dated 22.01.1992—Plaintiff's father’s statement recorded—
Admitted that he holds power of attorney—Admittedly power
of attorney not filed along with plaint due to inadvertent
error—Same filed on 25.11.1991 vide application which was
allowed—Plaintiff's testimony amounted to clear ratification—
Procedural defects which do not go to the root of the matter
should not be permitted to defeat just cause—Ratio of Naresh
Kumar relied upon—Suit filed by duly authorised person.
Susan Leigh Beer v. India Tourism Development
Corporation Ltd. ............................................................... 31
— Nature of injuries—Evidence led—Nature of injuries were such
which resulted in fracture of cervical vertebrae—Resulted in
Plaintiff becoming a quadriplegic—Plaintiff represented school
in swimming—Member of State teams for water polo—
Member of Queensland Team—Plaintiff admittedly jumped into
shallow end of pool—Feet Slid forward—Head struck side of
pool—Plaintiff remembered bottom of pool to be slippery—
Nature of injuries stand determined.
Susan Leigh Beer v. India Tourism Development
Corporation Ltd. ............................................................... 31
— Cause of injuries—In written statement, Defendant did not
plead that Plaintiff dived into pool—Only in course of cross-
examination and arguments it was urged that Plaintiff did not
jump but dived into pool—Unless fact pleaded, no evidence
led can cure defect—Plaintiff contended that she jumped into
shallow end of pool, slipped and suffered injuries—Fully
supported by medical evidence—Theory propounded by
lifeguard also rejected as unreliable and practicably not
possible.
Susan Leigh Beer v. India Tourism Development
Corporation Ltd. ............................................................... 31
— Maintenance of pool tiles—Evidence led—Glazed tiles
inherently slippery—This would be further accentuated by
present of algal material—Growth occurs first in shallow
end—Initial stages of algae growth, water may remain clear.
Susan Leigh Beer v. India Tourism Development
Corporation Ltd. ............................................................... 31
— Res ipsa loquitur—Employed when no direct material on
particular aspect—Things speak for themselves—Three
conditions—Incident of this kind could only occur on account
of slippery floor—Accident caused by agency or
instrumentality within exclusive control of Defendant—Third,
accident not caused by any voluntary contribution on part of
plaintiff—All three conditions met—Res lpsa Loquitur
applicable—Burden shifts to Defendant—Defendants failed to
provide plausible explanation for injury—Failed to meet burden
of proof—Hence injury sustained on account of negligence
of Defendant.
Susan Leigh Beer v. India Tourism Development
Corporation Ltd. ............................................................... 31
— Damages—Plaintiff awarded Rs. 5 lacs for expenditure
incurred under head of medical treatment—Rs. 50 Lacs
awarded on account of physical and mental anguish—Loss
of earnings—Qunatified at Rs. 1 crore and twenty seven
1413
lacs—Plaintiff entitled to total sum alongwith simple interest
with effect from 22.01.1982.
Susan Leigh Beer v. India Tourism Development
Corporation Ltd. ............................................................... 31
— Order XXI Rule 97—Suit for specific performance of
agreement to sell decreed exparte in favour of plaintiff against
the defendant, followed by registration of sale deed and
mutation of property in the name of plaintiff—Before the
execution court, the petitioners/objectors contended that they
had purchased the property from one Pushpa Singh who had
purchased the same from the defendant prior to the date of
agreement to sell between plaintiff and the defendant and they
are in peaceful possession—Execution court dismissed the
objections, holding that since registered sale deed was executed
in favour of plaintiff and mutation done under the orders of
the court, the objections were not maintainable—Held, the
record shows that the address of the defendant was not
correctly mentioned in the suit though the same was known
to the plaintiff and this shows that contention of the objectors
that fraud was played upon the court cannot be ruled out —
Further held, the very purpose of Order XXI Rule 97&98 CPC
is to avoid filing of separate suit and execution court
empowered to conduct detailed inquiry on the objections—
Matter remanded back to the execution court to decide the
objections afresh.
Yogender Kumar & Another v. Ram Kishan Gupta
and Anr. .......................................................................... 531
— Order 1 Rule 10—Motor Vehicles Act, 1988—Section 2(30)-
165—Order of Motor Accident Claims Tribunal rejecting
Petitioner’s application seeking impleading of licensee who had
been granted permission for operation of Feeder Buses for
Metro Link Feeder Bus Project of DMRC Ltd. challenged
before HC—Plea taken, petitioner had entered into agreement
whereunder licensee was granted permission for operation of
feeder buses for Metro Feeder Bus Project—Licensee had
undertaken to indemnify petitioner against accident/claims/
liability arising out of operation of buses—There was no privity
of contract between petitioner and injured victim—Rejection
of application tantamounted to pre-judging issue of liability
even without a trial—Held—Provisions of M.V. Act envisage
that claims Tribunal should hold enquiry to ascertain liabilities
of persons who are involved in use of vehicle or persons who
are vicariously liable—Issue of possession or control of vehicle
assumes importance and may be determining factor in fixing
liabilities of parties to claim petition—Order rejecting
petitioner’s application for impleadment of licensee set aside.
Delhi Metro Rail Corporation Ltd. v. Samrat Ranga
and Ors. .......................................................................... 595
— Section 16, 20 and 22—Legal question framed as to whether
Delhi court has territorial jurisdiction to entertain and try a suit
for specific performance relating to a property situated outside
Delhi—On the basis of legal precedents, held that Delhi Courts
have no jurisdiction to entertain and try a suit for specific
performance relating to an immovable property situated outside
Delhi because the relief cannot be entirely obtained through
the personal obedience of the defendant under the proviso to
Section 16 CPC as the defendant will have to go out of Delhi
to get the sale deed registered—Plaints of both suits directed
to be returned to the plaintiffs.
Shri M. K. Sharma and Anr. v. Shri SH Tek Chand
and Others ...................................................................... 652
— Section 157—Officer In-charge of Police Station enjoined
under Section 157 to forward copy of FIR forthwith to Illka
Magistrate empower to take cognizance of an offence so that
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prosecution may not concoct facts and set up false case
against an accused—However, mere delay in forwarding the
copy of FIR to the Magistrate under Section 157 which was
otherwise recorded promptly is of no consequence, if the
Court is otherwise convicted about the truthfulness of the
prosecution case and there is otherwise positive and
trustworthy evidence on record.
Dharambir & Anr. v. State ........................................... 686
— Order 1 Rule 10—Motor Vehicles Act, 1988—Section 2(30)-
165—Order of Motor Accident Claims Tribunal rejecting
Petitioner’s application seeking impleading of licensee who had
been granted permission for operation of Feeder Buses for
Metro Link Feeder Bus Project of DMRC Ltd. challenged
before HC—Plea taken, petitioner had entered into agreement
whereunder licensee was granted permission for operation of
feeder buses for Metro Feeder Bus Project—Licensee had
undertaken to indemnify petitioner against accident/claims/
liability arising out of operation of buses—There was no privity
of contract between petitioner and injured victim—Rejection
of application tantamounted to pre-judging issue of liability
even without a trial—Held—Provisions of M.V. Act envisage
that claims Tribunal should hold enquiry to ascertain liabilities
of persons who are involved in use of vehicle or persons who
are vicariously liable—Issue of possession or control of vehicle
assumes importance and may be determining factor in fixing
liabilities of parties to claim petition—Order rejecting
petitioner’s application for impleadment of licensee set aside.
Delhi Metro Rail Corporation Ltd. v. Samrat Ranga
and Ors. .......................................................................... 595
CODE OF CRIMINAL PROCEDURE, 1973—Section 482—
Clause 10 and 18 of Letters Patent Act—Appellant C.S.
Aggarwal, Director of M/s Rockman Projects Limited (referred
to as RPL) made a representation for the purpose of securing
investment to Mr. Sameer Kohli, director of M/s Kohli Housing
and Development Pvt. Ltd—Intended to develop one SEZ on
250 acres land situated at Delhi-Jaipur Highway owned by
RPL—Petitioner received in-principal approval from the Govt.
of India for the project—On the representation, respondent
no. 3 agreed to buy 74% shares worth Rs. 185 crores in the
Special Purpose Vehicle (SPL) formed for this purpose—MOU
was signed—Advance payment of Rs. 40 crores was made
by respondent no. 3 on the condition that either this advance
will be refunded back to him or the land of 250 acres would
be transferred in favour of him in case the SEZ notification
is not received by 31st December 2008—Subsequently an
amount of Rs. 3 crores was given to the petitioner by
respondent no. 3—No notification could be received by RPL
by 31.12.2008—Mr. D.K. Jain, the other director of RPL
issued a public notice revoking all authority given to the
petitioner to act on behalf of RPL—After expiration of the dead
line, respondent no.3 demanded his money back, but in Vain—
Respondent made a complaint, on the basis of which, FIR
no. 266/09 was registered against the appellant herein u/s 420/
406/120-B IPC—Appellant challenged the registration of FIR
and sought quashing of the same—Hon’ble Single Judge
dismissed the petition—Appellant preferred the Letter Patent
Appeal under clause 10 of the Letter Patent Act—Respondent
took a primary objection to the maintainability of the Letter
Patent Appeal on the point that judgment was passed in
exercise of criminal jurisdiction and the Letter Patent appeal
against the order is clearly barred by Clause 10 and 18 of
Letters Patent Act—Held—Proceedings under Article 226 of
the Constitution would be treated as original civil proceedings
only when it concerns civil rights—A fortiori, if it concerns
a criminal matter, then such proceedings would be original
criminal proceedings—Letter Patent would lie when the Single
Judge decides the writ petition in proceedings concerning civil
1817
rights—On the other hand, if these proceedings are concerned
with rights in criminal law domain, then it can be said that
the Single Judge was exercising his ‘criminal jurisdiction’
while dealing with such a petition filed under Article 226 of
the Constitution—In a petition under Article 226 of the
Constitution when the High Court is exercising extraordinary
jurisdiction, the nature of proceedings, whether civil or
criminal, would depend upon the nature of right violated and
the nature of relief sought in the said petition—Writ of this
nature filed under Article 226 of the Constitution—Seeking
quashing of such an FIR would therefore be ‘‘criminal
proceedings’’ and while dealing with such proceedings, the
High Court exercises its ‘‘criminal jurisdiction’’—The LPAs
are barred and not maintainable—Dismissed.
C.S. Agarwal v. State & Ors. ...................................... 701
— Section 311A, Constitution of India, 1950—Article 20—
Appellants preferred appeals to challenge their conviction under
Section 302, 201, 384 read with Section 34 of Act—They
urged, one of circumstance i.e. delivery of ransom note in
the handwriting of the appellant Jaipal not proved—Also police
did not have power to take accused's handwriting under
Section 73 of Indian Evidence Act—Moreover, Section 311
A of Cr.P.C. was incorporated in the statute book only w.e.f.
23.06.2006 and was not retrospective in its application—Held:-
Obtaining the handwriting of an accused during investigation
is not hit by Article 20 (3) of the Constitution of India as an
accused cannot be said to be a witness against himself, if he
is asked to give his handwriting for purpose of verification
of any document purported to be in his handwriting—Some
forms of testimonial acts lie outside the scope of Article
20(3)—Obtaining appellant Jaipal's handwriting during
investigation not illegal.
Jaipal v. State................................................................. 553
— Sections 235, 245, 325, 360, 361, 377—Aggrieved by judgment
and order on sentence, State preferred appeal on ground,
sentence of two and a half years imprisonment for conviction
under Section 376/511 IPC inadequate and calls for
enhancement—Also, Trial Court fell into error in not awarding
minimum sentence of five years for attempting rape—Per
contra, amicus curiae on behalf of Respondent urged that in
appeal, by State on ground of inadequacy of sentence,
Accused/Respondent at same time has liberty to plead for his
acquittal or for reduction of sentence—Thus, case to be
considered on merits—Held:- A proper sentence is amalgam
of many factors such as the nature of the offence,
circumstances extenuating or aggravating offence, prior
criminal record, if any, of offender, age of offender as to
employment, background of offender with reference to
education, home life, sobriety and social adjustment, emotional
and mental conditions of offender, prospects for rehabilitation
of offender, possibility of return of offender to normal life in
community, possibility of treatment of training of offender,
possibility that sentence may serve as a deterrent to crime by
offender or by others and current community need, if any,
for such a deterrent in respect to particular type of offence—
No reason found to disturb conviction of Respondent,
however, Court would exercise and interfere with sentencing
discretion of trial Court “where inadequacy of sentence is gross
or glaring or shocks courts conscious”—In given facts and
conspectus of circumstances, does not warrant interference
in order on sentence.
State GNCT of Delhi v. Mukesh .................................. 340
— Sections 235, 245, 325, 360, 361, 377—Aggrieved by judgment
and order on sentence, State preferred appeal on ground,
sentence of two and a half years imprisonment for conviction
under Section 376/511 IPC inadequate and calls for
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enhancement—Also, Trial Court fell into error in not awarding
minimum sentence of five years for attempting rape—Per
contra, amicus curiae on behalf of Respondent urged that in
appeal, by State on ground of inadequacy of sentence,
Accused/Respondent at same time has liberty to plead for his
acquittal or for reduction of sentence—Thus, case to be
considered on merits—Held:- A proper sentence is amalgam
of many factors such as the nature of the offence,
circumstances extenuating or aggravating offence, prior
criminal record, if any, of offender, age of offender as to
employment, background of offender with reference to
education, home life, sobriety and social adjustment, emotional
and mental conditions of offender, prospects for rehabilitation
of offender, possibility of return of offender to normal life in
community, possibility of treatment of training of offender,
possibility that sentence may serve as a deterrent to crime by
offender or by others and current community need, if any,
for such a deterrent in respect to particular type of offence—
No reason found to disturb conviction of Respondent,
however, Court would exercise and interfere with sentencing
discretion of trial Court “where inadequacy of sentence is gross
or glaring or shocks courts conscious”—In given facts and
conspectus of circumstances, does not warrant interference
in order on sentence.
State GNCT of Delhi v. Mukesh .................................. 340
COMPANIES ACT, 1956—Section 391 to 394—Jurisdiction to
decide the issue of arrangement of the companies—
Department of Telecommunications (DoT) filed applications
for recall of order dated 05.02.2010 allowing amalgamation
of Spice Communication Limited (Spice) with Idea Cellular
Limited (Idea)—Contending that material documents—DoT’s
letter rejecting the amalgamation and License Agreements and
Merger Guidelines 2008 (guidelines) Suppressed—Wherein it
was clearly mentioned that the prior permission of DoT was
mandatory for filing a petition for merger before the Court-
Unified Access Services License Agreements (licenses)—
Clause 6.1 and 6.2 prohibit transfer of licences without prior
permission of DoT whereas clause 6.3 is restricted to
assignment of license agreement pursuant to approval of
merger scheme by this court under section 391-394 of the
Act—Order approving scheme has caused prejudice to DoT
Delay in filing the explanation does not disentitle DoT from
claiming reliefs sought—Petitioner-Companies contended that
DoT has no locus standi-Under clause 6.3 of license—DoT
has no say in the merger of companies—Guidelines are law
and cannot be suppressed—However admitted
correspondences with DoT-understanding was that DoT had
no objections—DoT on the other hand had suppressed the
letters written by the petitioner Companies—no violation of
guidelines—Clause 6.3 of licenses stipulates that approval of
DoT is to be obtained only on sanction of scheme by the High
Court—Sanction for merger of companies cannot be
conditional upon any statutory or regulatory permission.
Held—High Court alone has exclusive jurisdiction to decide
the issue of arrangement of companies merger of companies
does not result in merger of licenses but all merger/
amalgamation of companies necessarily results in transfer of
licenses for which prior permission is required under clause
6.1 of licenses—Prior permission under clause 6.1—Attracted
in the present case—Petitioner—Companies had suppressed
material documents to obtain unfair advantage—Sanctioned
scheme is binding on all shareholders, creditors—DoT is a
necessary party being a licensor and regulator—Grave
prejudice caused to DoT—However delay of 13 months in
filing the application for recall of order—Not explained—
Situation on ground—Spice lost its entity—Employees have
become employees of idea—Delisted from stock exchange-
not possible to recall the order in entirety—To bring the
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scheme in conformity with the guidelines—The order was
modified—Six overlapping licenses of Spice would not stand
transferred to Idea till DoT grants permission—Overlapping
licenses of Spice shall stand transferred/vested with DoT—
Spectrum allocated would revert back to DoT—In case DoT
refuses or grants conditional approval of transfer licenses—
Idea can challenge it before TDSAT-customers to be provided
uninterrupted services in overlapping license area-Ministry of
Corporate Affairs directed to conduct study and suggest
remedial measures to ensure no party can obtain sanction of
a scheme of arrangement without placing on record relevant
materials.
M/s. Spice Communications Limited & Anr. ............... 470
CONSTITUTION OF INDIA, 1950—Article 226—Writ
Petition—Railway Protection Force (RPF) Rules, 1987—
Service Law—Petitioner constable in RPF attached with a
detachment deployed at railway station for static guard
alongwith ten others under the command of one head
constable—Deceased Naik Amarjeet Yadav was murdered at
railway station allegedly by petitioner—Petitioner annoyed with
deceased and had an argument with him—For that reason fired
three rounds from his service rifle at the deceased resulting
in instantaneous death—FIR registered by police u/s 302 IPC
against petitioner—In preliminary inquiry, allegations proved—
Disciplinary authority dismissed petitioner from service stating
that not reasonably practicable to hold a departmental inquiry—
In Appeal, order of disciplinary authority set aside and regular
departmental inquiry ordered on the charges of gross
remissness and negligence in discharge of duty, willful breach
of discipline and serious misconduct—He was kept under
suspension during the pendency—Charges proved against
him—Again dismissed from service by disciplinary authority—
Filed appeal against the order before Appellant Authority—
During the pendency of appeal, acquitted by the court due to
lack of evidence—Transpired that all witnesses examined in
the departmental inquiry not produced in criminal trial—
Represented to the Appellate Authority in view of acquittal
relating to the same incident the punishment in departmental
inquiry be set aside—Appeal dismissed being time barred—
Filed revision before revisional authority—Revision
dismissed—Preferred writ petition—Contended, in view of the
fact that he has been acquitted in the criminal proceedings
based on same set of allegations which constituted the
gravamen of departmental proceedings the order of
Discriptionary Authority should be quashed—Further
contended that he could not participate in disciplinary
proceedings since he was not paid subsistence allowance—
Held—Departmental inquiry and criminal proceedings operate
in their distinct and mutually exclusive jurisdictional areas—
In a disciplinary proceedings the area of investigation covers
the field of (a) enforcement of discipline (b) level of integrity
(c) misconduct pertaining to devotion towards duty—In
criminal proceedings the area of investigation covers the
culpability from the point of view of criminal law—Standard
of proof in the two proceedings are different—In the former,
it is preponderance of probability and in the latter beyond
reasonable doubt—Rule of Evidence Act applicable in the
criminal trial; not applicable in the disciplinary proceedings
wherein any material having logical probative value to prove
or disprove the fact in issue relevant and admissible—In the
case in hand, the scope of departmental inquiry covering
disciplinary aspect wider and different and accordingly the
acquittal of the petitioner in the criminal proceedings has no
effect on the punishment of dismissal from service imposed
on him in the departmental proceedings—Further requirement
of furnishing a non-employment certificate by the suspended
employee to draw his subsistence allowance granted on
monthly basis to the employee to sustain himself—If the
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suspended fails to submit the certificate, he cannot complain
about not getting the subsistence allowance—Writ Petition
Dismissed.
Rajesh Kr. Chaturvedi v. Union of India & Ors. ...... 106
— Article 226—Petition challenging the enquiry and the
proceedings being violative of service rules applicable to the
staff of respondent—Seeking quashing of order of retirement
and reinstatement into service—Petitioner was employed with
the respondent in 1993 as clerk-cum-typist—Lastly worked
as Manager—Charged with misconduct of making payments
against false credit entries—Misuse of powers and ignoring
the prescribed Banking rules—Not taking care of interest of
the bank and having tampered with the record of the Bank—
Inquiry conducted—Petitioner found guilty—Respondent
imposed a penalty of compulsory retirement on the
petitioner—Appeal preferred—Rejected by Board of
Directors—Petition—Challenged on the ground of
maintainability—Petitioner alleges that employees of respondent
are governed by Central Civil Services (Conduct) Rules, 1964
and Central Civil Services (Classification, Control and Appeal)
Rules 1965, which shows that it is State and hence writ
petition is maintainable—Held—Merely, because a Society
adopts the rules applicable to Government servants to its own
employees would not convert the said Co-opertative Society
into Government—Similarly, merely because the respondent
is performing banking function would also not make the writ
petition maintainable—It is not shown that the function so
performed by the respondent is monopolistic—According to
the document handed over by the petitioner himself there are
as many as 32 Co-opertaive Societies in Delhi performing the
banking functions—This is besides the other banks operating
in Delhi—Thus the said ground for maintainability of the writ
petition is also rejected—In view of the aforesaid dicta of the
Supreme Court, the reasons given in rejoinder do not justify
the maintainability of the writ petition not maintainable.
Anand Prakash v. The Delhi State Co-Operative Bank
Ltd. & Anr. .................................................................... 251
— Article 226—Industrial Disputes Act, 1947—Section 17-B—
Application under Section 17-B of the Act by workman
claiming that, he was not gainfully not employed since 1994—
Single Judge observed that the application was filed in 2006
after 12 years—Workman directed to file his statements of
bank accounts from 1994 till date, Telephone bills, whether
he resided in his own premises or rented premises and also
an affidavit in corporating these facts—Aggrieved, appellant
filed Letter Patent Appeal—The affidavit in terms of Section
17-B clearing stating that respondent workman was not
gainfully employed already filed—Such inquiry is not
permissible under Section 17-B—Held—It is the duty of the
Court to arrive at a conclusion with regard to the entitlement
of the benefit under Section 17-B of the Act keeping in view
the decisions in Dena Bank (supra), Viveka Nand Sethi (supra)
K.B. Singh & Ors. (supra), Vinod Kumar (supra) and
Bhagawan Giri (supra)—The writ court has to see whether
the workman received adequate remunertaion during such
period and whether the respondent-management has produced
ample material to show that the workman had been really
gainfully employed—Mere survival would not be enough—It
will depend upon the factum of adequacy of amount
received—In the case at hand, the learned Single Judge has
erroneously observed that the workman had filed an
application after 12 years as the same is not factually correct—
It is clear that the appellant filed the application in quite
promptitute—The information that have been directed by the
learned Single Judge to be given by the workman are in the
realm of roving enquiry putting the entire burden on the
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workman—Such a roving enquiry, is unwarranted and,
accordingly, the order impugned set aside.
S.K. Mitra v. Asst. General Manager State Bank
of India ........................................................................... 262
— Article 226—Special Economic Zones Act, 2005—Section
26(1) (e), 26(2), 51, 55 and 58—Special Economic Zone
Rules, 2006—Rule 31—Central Excise Act, 1994—Section
37B—Payment of whole service tax exempted on services
provided to a Developer or Units of SEZ by any service
provider, for purpose of development, operation and
maintenance of SEZ or for setting up of a SEZ unit or for
manufacture of goods by SEZ Units, on satisfaction of certain
conditions—Impugned circular clarified that service tax is
exempted on provision of only such services which are
rendered by service providers to Developer or Unit for its
authorized operation within area of SEZ—Circular challenged
in writ petition before High Court —Plea taken, only condition
required for availing exemption from payment of service tax
by a Developer/Entrepreneur is that taxable service should be
used for carrying on authorized operations by Developer/
Entrepreneurs—Location of service provider or place of
service is entirely irrelevant for purpose of this exemption—
Per contra plea taken, service tax exemption is available only
for services which are provided to carry on authorized
operation in a SEZ—Held—Only condition that is required to
be satisfied to avail service tax benefit is that services must
be rendered for purpose of carrying out ‘‘authorized
operations in a special economic zone’’—If intention of
legislature was to exempt only those services from levy of
service tax that are rendered within SEZ, legislature would
have categorically stated so in statute—A subordinate legislation
has to confirm to parent statute and any subordinate legislation
inconsistent to provisions of parent statute is liable to be set
aside—Circulars being executive/administrative in character
cannot supersede or override Act and statutory Rules—
Impugned circular seeks to impose a condition that was not
intention of legislature in SEZ Act or Rules and is liable to be
set aside.
M/s. Jindal Stainless Limited & Anr. v. Union of
India & Ors. .................................................................. 373
— Article 19(1) (a), 21, 105 (1) and 326—Petitioner, a
Parliamentarian in Judicial Custody filed writ petition for
permission to attend Parliament in Judicial Custody—Plea
taken, Parliamentarian has freedom of speech subject only to
rules and standing orders regulating procedure of Parliament
none of which prevents petitioner from attending Parliament
and speaking while in custody—Constitutional right of
petitioner to participate in Parlimentary proceedings and right
to vote in Parliament as elected representative is essence and
expression of Parliamentary democracy—Parliamentary
democracy is basic feature of Constitution of India and there
is no reason for denying such participation to petitioner while
same is possible in judicial custody—Refusing participation in
Parliamentary proceedings to petitioner would deny him
opportunity to fulfill his constitutional objections to attend
proceedings of Parliament—Unless petitioner is so permitted,
Parliamentary Constituency which had elected him would go
unrepresented in Parliament—Public interest demands that
petitioner, be permitted to attend Parliament—Per contra, plea
taken offences with which petitioner is charged with are
extremely grave and serious causing huge wrongful pecuniary
benefits to certain private parties and consequent loss to public
exchequer—Some of other accused officials of the Organizing
Committee for Common Wealth Games of which petitioner
was chairman are still absconding—CBI apprehends that
petitioner may misuse liberty sought by way of present petition
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to influence witnesses and tamper with evidence—Held—
Argument as raised by petitioner amounts to placing Members
of Parliament (M.P.) at a pedestal higher than their electorate—
Argument assumes work of a M.P. is more sacred and
important than work/vocation in which citizens who have
elected said Parliamentarian may be engaged in—Such
argument is archaic and creates two classes of citizens as in
a monarchy i.e. king and subject and is alien to Constitution—
Merely because petitioner is a Parliamentarian does not entitle
him to claim any exception from effect of being in detention—
It is not case of petitioner that vote of petitioner on any aspect
is vital or that without such participation citizens of his
constituency would suffer—Petitioner, in past, as per his
convenience has been missing Sessions of Parliament—When
petitioner could afford to miss parliament to spend time on
National Games or Participate in Games at China, his desire/
keenness to attend parliament can only be understood as
attempt for fresh air outside prison walls—Petitioner is not
entitled to relief claimed—Petition dismissed with costs of Rs.
1,00,000/- payable to Prime Minister’s National Relief Fund.
Suresh Kalmadi (In Judicial Custody) v. Union of India
& Ors. ............................................................................. 795
— Article 226, Guardian and Wards Act, 1890—Section 7—Writ
of Habeas Corpus—Petitioner, the mother seeks issuance of
Writ of Habeas Corpus directing her husband Respondent No.
2 to produce their minor son before Hon’ble High Court—
Petitioner, Respondent No. 2 and the minor son are Indian
Citizens residing in Canada since 04.04.2009—Respondent No.
2 and minor son came to India-Did not return—Before the
petitioner could move Court, respondent filed a petition under
Guardian and Wards Act and Section 6 of Hindu Minority and
Guardianship Act, 1956 for appointment of himself as sole
guardian—Petitioner moved the Superior Court of Justice, in
Canada—Held the child was an Indian Citizen—When the
Canadian Court passed the orders, the Guardianship Court in
New Delhi was already in seisin of the custody matter—No
comity of Courts Principle to apply—When child was brought
to India no custody dispute was pending—Not in violation of
any Court’s order—Golden Rule to be followed—Welfare of
the child—Minor’s right to life and liberty guaranteed under
Article 21 of the Constitution of India—Question to decide
which parent’s care is best for the child—Petition not
allowed—Custody by Respondent No. 2 not unlawful or ill
Deepti Mandlaus v. State (Govt. of NCT of Delhi)
and Anr. .......................................................................... 453
— Article 226—Code of Criminal Procedure, 1973—Section
482—Clause 10 and 18 of Letters Patent Act—Appellant C.S.
Aggarwal, Director of M/s Rockman Projects Limited (referred
to as RPL) made a representation for the purpose of securing
investment to Mr. Sameer Kohli, director of M/s Kohli Housing
and Development Pvt. Ltd—Intended to develop one SEZ on
250 acres land situated at Delhi-Jaipur Highway owned by
RPL—Petitioner received in-principal approval from the Govt.
of India for the project—On the representation, respondent
no. 3 agreed to buy 74% shares worth Rs. 185 crores in the
Special Purpose Vehicle (SPL) formed for this purpose—MOU
was signed—Advance payment of Rs. 40 crores was made
by respondent no. 3 on the condition that either this advance
will be refunded back to him or the land of 250 acres would
be transferred in favour of him in case the SEZ notification
is not received by 31st December 2008—Subsequently an
amount of Rs. 3 crores was given to the petitioner by
respondent no. 3—No notification could be received by RPL
by 31.12.2008—Mr. D.K. Jain, the other director of RPL
issued a public notice revoking all authority given to the
petitioner to act on behalf of RPL—After expiration of the dead
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line, respondent no.3 demanded his money back, but in Vain—
Respondent made a complaint, on the basis of which, FIR
no. 266/09 was registered against the appellant herein u/s 420/
406/120-B IPC—Appellant challenged the registration of FIR
and sought quashing of the same—Hon’ble Single Judge
dismissed the petition—Appellant preferred the Letter Patent
Appeal under clause 10 of the Letter Patent Act—Respondent
took a primary objection to the maintainability of the Letter
Patent Appeal on the point that judgment was passed in
exercise of criminal jurisdiction and the Letter Patent appeal
against the order is clearly barred by Clause 10 and 18 of
Letters Patent Act—Held—Proceedings under Article 226 of
the Constitution would be treated as original civil proceedings
only when it concerns civil rights—A fortiori, if it concerns
a criminal matter, then such proceedings would be original
criminal proceedings—Letter Patent would lie when the Single
Judge decides the writ petition in proceedings concerning civil
rights—On the other hand, if these proceedings are concerned
with rights in criminal law domain, then it can be said that
the Single Judge was exercising his ‘criminal jurisdiction’
while dealing with such a petition filed under Article 226 of
the Constitution—In a petition under Article 226 of the
Constitution when the High Court is exercising extraordinary
jurisdiction, the nature of proceedings, whether civil or
criminal, would depend upon the nature of right violated and
the nature of relief sought in the said petition—Writ of this
nature filed under Article 226 of the Constitution—Seeking
quashing of such an FIR would therefore be ‘‘criminal
proceedings’’ and while dealing with such proceedings, the
High Court exercises its ‘‘criminal jurisdiction’’—The LPAs
are barred and not maintainable—Dismissed.
C.S. Agarwal v. State & Ors. ...................................... 701
— Article 226—Petitioner industry is situated at Industrial area
Q-5-6, Ghirongi, Distt. Bhind, Malanpur in the State of
Madhya Pradesh—Assistant Commissioner of Custom, ICD,
Malanpur ordered that no draw-back facility is admissible to
the petitioner as it had by way of procuring duty free inputs
under Rule 19 (2) of the Central Excise Rules, 2002,
contravened clause (ii) of the second proviso to Rule 3 (1)
of the Central Excise Drawback Rules, 1995 and also
condition No. 7 (F) of the notification No. 68/2007-Cus (NT)
and condition No. 8 (F) of the notification No. 103/2008-Cus
(NT)—Petitioner preferred revision—Revision dismissed by
Revisionary Authority, Government of India, Ministry of
Finance, Department of Revenue—Petitioner challenged the
legal substantiality and sustainability of the order dated
09.07.2010 passed by Revisionary Authority—Division Bench
referred the matter for reconsideration by Full Bench doubting
the correctness and soundness of the decision in New India
Assurance Company Limited v. Union of India and others,
AIR 2010 Delhi 43 (FB)—Full Bench thought it appropriate
that the matter should be considered by a larger Bench—Larger
Bench constituted and matter was placed before the Larger
Bench—Controversy is pertaining to the jurisdiction of Hon’ble
High Court of Delhi in these writ petitions under Article 226—
Held—The principle of forum conveniens in its ambit and
sweep encapsulates the concept that a cause of action arising
within the jurisdiction of the Court would not itself constitute
to be the determining factor compelling the Court to entertain
the matter—While exercising jurisdiction under Articles 226
and 227 of the Constitution of India, the Court cannot be
totally oblivious of the concept of forum conveniens—The
Full Bench in New India Assurance Co. Ltd. (supra) has not
kept in view the concept of forum conveniens and has
expressed the view that if the appellate authority who has
passed the order is situated in Delhi, then the Delhi High Court
should be treated as the forum conveniens—Findings and
conclusions of the Full Bench in New India Assurance
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Company Limited (supra) Modified and conclusions in
seriatim Stated as follows : (a) The finding recorded by the
Full Bench that the sole cause of action emerges at the place
or location where the tribunal/appellate authority/revisional
authority is situate and the said High Court i.e., Delhi High
Court cannot decline to entertain the writ petition as that would
amount to failure of the duty of the Court, cannot be accepted
inasmuch as such a finding is totally based on the situs of
the Tribunal/Appellate Authority/Revisional Authority totally
ignoring the concept of forum conveniens (b) Even if a
miniscule part of cause of action arises within the jurisdiction
of this court, a writ petition would be maintainable before this
Court; however, the cause of action has to be understood as
per the ratio laid down in the case of Alchemist Ltd. (c) An
order of the Appellate authority constitutes a part of cause of
action to make the writ petition maintainable in the High Court
within whose jurisdiction the appellate authority is situated—
Yet, the same may not be the singular factor to compel the
High Court to decide the matter on merits—The High Court
may refuse to exercise its discretionary jurisdiction by invoking
the doctrine of forum conveniens. (d) The conclusion that
where the appellate or revisional authority is located constitutes
the place of forum conveniens as stated in absolute terms by
the Full Bench is not correct as it will vary from case to case
and depend upon the lis in question—(e) The finding that the
court may refuse to exercise jurisdiction under Article 226 if
only the jurisdiction is invoked in a malafide manner is too
restricted/constricted as the exercise of power under Article
226 being discretionary, cannot be limited or restricted to the
ground of malafide alone—(f) While entertaining a writ petition,
the doctrine of forum conveniens and the nature of cause of
action are required to be scrutinized by the High Court
depending upon the factual matrix of each case in view of
what has been stated in Ambica Industries (supra) and Adani
Exports Ltd. (supra)—(g) The conclusion of the earlier
decision of the Full Bench in New India Assurance Company
Limited (supra) ‘‘that since the original order merges into the
appellate order, the place where the appellate authority is
located is also forum conveniens’’ is not correct—(h) Any
decision of this Court contrary to the conclusions enumerated
hereinabove stands overruled—Ex consequenti, reference
answered by partially overruling and clarifying the decision
in New India Assurance company Limited (supra) in the above
terms. Matters directed to be listed before the appropriate
Division Bench for appropriate consideration.
M/s Sterling Agro Industries Ltd. v. Union of India
& Ors. ............................................................................. 729
— Writ—Service matter—LIC (staff) Regulations, 1950—
Regulation 39—Industrial Disputes Act, 1947—Petitioner
appointed in LIC as office attendant in 1963—Posted in
Meerut Division—Became a trade unionist—Transferred to
Mhow in Madhya Pradesh in November 1978—Did not
comply with the transfer order—Letter dated 22.12.1978
directing the petitioner to join his duties at Mhow-did not join
duties-continued to address leave applications to Divisional
Office at Meerut—Again, vide letter dated 05.02.1979 asked
to join duty at Mhow-Did not join-continued to defy despite
another letter dated 21.08.1979—Pleaded illness-Panel of
medical examiners at Medical College, Meerut constituted-
petitioner challenged the constitution of panel and refused to
appear—Transfer order modified on 26.04.1980 from Mhow
to Panipat-modified order not complied with-further directed
to join duty at Panipat vide letter dated 15.05.1980—Asked
to get in touch with Dr. Aggarwal for medical examination-
did neither-resorted to hunger strike-submitted fitness
certificate dated 21.05.1980—LIC (staff) Regulation 1960—
Regulation 39 lays down procedure to hold an enquiry-holding
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of enquiry dispesed with by the Zonal Manager—Charge
sheet-cum-show cause Notice proposing penalty of removal
from service under Regulation 39 (1) (f) issued on
21.06.1980—Reply not filed-kept on seeking time-vide order
dated 11.08.1980 discussing the charges and documents in
support of punishment of removal from service under
Regulation 39 (1) (f) imposed—Appeal against the order-
dismissed by the Managing Director—Memorial preferred
before the Chairman followed by apology—Writ Petition before
Allahabad High Court filed against the order dated
10.08.1980—Dismissed—Special Leave Petition filed before
the Supreme Court—Liberty given to seek fresh reference of
the dispute to labour court—Process under Industrial Disputes
Act, 1947 invoked—Reference made to CGIT—CGIT passed
award dated 16.06.1998—Award of CGIT challenged through
the Writ Petition—Held—General attitude of petitioner was that
of defiance -decision to dispense with holding of an enquiry
not taken in a hurry-Concurred with CGIT—Petition
dismissed.
S.P. Arya v. Union of India & Ors. ........................... 808
CUSTOMS ACT, 1962—Notification No. 23 (RE-2010)/2009-
2014 dated 18.02.2010(ANN-P-I), Notification No. 25 (RE-
2010)/2009-2014 dated 24.03.2011 (ANN-P-II), Notification
No. 37 E (RE-2010)/2009-2014 dated 24.03.2011 (ANN-P-
III)-(impugned Notifications) Export of ‘Casein’ and ‘Casein
Products’-Petitioner manufacturer and exporter of casein and
casein products- eligible and therefore applied and obtained
permission for factory stuffing in terms of CBEC circular no.
60/2011-Cus dated 01.11.2001—Applied to jurisdictional
Central Excise Officers for examination—Goods examined
under four shipping bills on 16.02.2011, 16.02.2011,
16.02.2011 and 18.02.2011—On that very date were removed
from the factory and handed over to ICD, Tuglakabad—
Meanwhile—Impugned notifications were issued prohibiting
export of casein and casein products-AO disallowed export-
goods were presented for examination after the impugned
notifications were passed-CC(A) allowed the appeal-Goods
presented to jurisdictional Central Excise Officers is
presentation for Customs examination-Not hit by the
prohibition—Respondent challenged the order before
Tribunal—Appeal yet to be listed—No stay order—Present
writ petition filed for compliance of the order of CC(A)-
suffering demurrage-continued to be levied at escalating rate.
Held—Petitioner had completed all the formalities for
exportable goods-change of policy provision not applicable to
consignment already handed over to customs for
examination—Petitioner cannot be blamed for procedural
delay-in case the goods are exported, the Petitioner will suffer
irreparable loss as the goods cannot be re-used—Balance of
convenience lies in favour of the Petitioner—Respondents
directed to allow the Petitioner to export the goods.
M/s Bhole Baba Dairy Industries Ltd. v. Union of
India and Ors. ................................................................ 537
DELHI SIKH GURUDWARA ACT, 1971—Section 3(1), 24, 31,
32, 33, 36, 40 (2) (f)—Indian Penal Code, 1860—Section
21—Constitution of India, 1950—Article 226—Right to
Information Act, 2005—Section 2(h)—Writ filed for seeking
mandamus for reinstatement and for payment of wages,
etc.—Question of maintainability of writ petition suo moto
raised by Court—On maintainability, plea taken DSMGC is a
statutory body empowered to manage educational and other
institutions—Members of DSMGC are public servants within
meaning of Indian Penal Code—Terms and conditions of
service of employees of DSMGC have statutory force—Per
contra plea taken, petitioners ought to invoke remedy of
Industrial Disputes Act—Held—Jurisdiction over disputes
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between DSGMC and its employees including past employees
is, first of District Judge and Gurudwara Act provides for a
remedy to this Court against orders of District Judge—Act
on basis of which writ remedy is invoked against DSGMC,
having itself provided a remedy for disputes as subject matter
of these writ petition, writ petitions would not be maintainable
on this ground alone—Court would ordinarily not exercise
writ jurisdiction when alternative, efficacious remedy is
available—Present petitions raise disputed questions of fact
which can be appropriately adjudicated in proceedings before
District Judge than in writ jurisdiction—Petitioners directed
to approach Departmental Appellate Authority/District Judge.
Satpal Singh v. Delhi Sikh Gurdwara Management
Committee & Anr. .......................................................... 462
ELECTRICITY ACT, 2003—Section 135—Petitioner filed
complaint against Respondents for committing offence under
Section 135 of Act on basis of raids conducted by inspection
team—All inspections carried out prior to notification of
Government of NCT empowering technical officers, Managers/
Executive Engineers and above rank officers as authorized
officers—Trial Court discharged Respondents holding
inspection in premises not made by authorized officers; so all
consequential proceedings initiated under Section 135 of Act
illegal—Respondent urged any action taken on basis of invalid
raid is nullity—Held:- An evidence even if illegally collected is
admissible in evidence, though the reliability thereof has to be
tested at time of trial—Trial Court to rehear the matter on order
of charge on basis of evidence on record and other contentions
raised by parties.
North Delhi Power Ltd. v. Surender Kumar................ 584
GUARDIAN AND WARDS ACT, 1890—Jurisdiction—Minor
child born on 14.11.2008 in USA—Parents came to Delhi,
resided in house of father—Mother forced to leave matrimonial
home along with minor child due to ill-treatment—Living in
Noida since 04.06.2009—Appellant filed petition under Section
25 of Guardians and Wards Act, 1890 for custody of minor—
Petition dismissed for want of territorial jurisdiction—Hence
present appeal—Petition to be filed where minor ordinarily
resides—Minor staying in Noida since 04.06.2009—Petition
filed after period of more than one year from date when wife
left matrimonial home along with minor—Ordinary place of
residence to be Noida—No illegality in impugned order.
Bharat Vats v. Garima Vats. ........................................ 198
— Section 9—Jurisdiction—Appellant states that application filed
on similar grounds—Same withdrawn—Hence could not file
similar application—Parties cannot confer jurisdiction where
Court has none—Only convenience of minor to be seen—No
application of res judicata or issue estoppels with respect to
interim applications—Appeal only filed to harass Respondent
and minor child—Appeal dismissed.
Bharat Vats v. Garima Vats ......................................... 198
— Section 7—Writ of Habeas Corpus—Petitioner, the mother
seeks issuance of Writ of Habeas Corpus directing her
husband Respondent No. 2 to produce their minor son before
Hon’ble High Court—Petitioner, Respondent No. 2 and the
minor son are Indian Citizens residing in Canada since
04.04.2009—Respondent No. 2 and minor son came to India-
Did not return—Before the petitioner could move Court,
respondent filed a petition under Guardian and Wards Act and
Section 6 of Hindu Minority and Guardianship Act, 1956 for
appointment of himself as sole guardian—Petitioner moved the
Superior Court of Justice, in Canada—Held the child was an
Indian Citizen—When the Canadian Court passed the orders,
the Guardianship Court in New Delhi was already in seisin of
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the custody matter—No comity of Courts Principle to apply—
When child was brought to India no custody dispute was
pending—Not in violation of any Court’s order—Golden Rule
to be followed—Welfare of the child—Minor’s right to life
and liberty guaranteed under Article 21 of the Constitution of
India—Question to decide which parent’s care is best for the
child—Petition not allowed—Custody by Respondent No. 2
not unlawful or ill
Deepti Mandlaus v. State (Govt. of NCT of Delhi)
and Anr. .......................................................................... 453
INCOME TAX ACT, 1961—Section 28 (va), Section 55(2) (o)—
Capital gain and income from business—Assessee, engaged
in business of health care, print media and electronic media
communications, entered into specified assets transfer
agreement with another company for sale of all its rights.
Titles and interest in specified assets including the business
intellectual property rights alongwith goodwill and all rights
etc. for consideration of Rs. 3,80,02,500/-—Assessing Officer
held that the amount of Rs. 3,80,02,500/- is income and as
such taxable under the head business and professions instead
of being the capital gain as claimed by the assessee—In appeal,
CIT(A) accepted the contention of the assessee and held that
the said amount was not business income but long term capital
gain on transfer of assets—In further appeal of the revenue,
the ITAT upheld the decision of CITA—Hence, appeal to the
High Court under Section 260(A)(1) Income Tax Act—High
Court held, trademarks/brands, copyright and goodwill will
constitute assets of the business and are profit earning
apparatus and as such, sale thereof would lead to capital gain.
Commissioner of Income Tax v. M/s. Mediworld
Publications Pvt. Ltd. .................................................... 203
— Section 271 (1) (c)—This appeal arises out of the order of
the Income Tax Appellate Tribunal—A survey was carried out
at the business premises and godown of the respondent-
assessee on 06.01.2003—In that survey, discrepancies in cash,
stock and renovation were found—The assessee accepted this
difference and surrendered the amount—No attempt was made
by the assessee even after this surrender to retract therefrom
or to explain that there were no such discrepancies—
Assessment also reflected the surrendered amount in his
income tax returns—Assessing officer initiated separate penalty
proceedings which culiminated in imposition of penalty—CIT
(A) deleted the penalty by holding that there was no
concealment—Tribunal dismissed appeal filed by Revenue—
Instant appeal filed—It is to be kept in mind that Section
271(1)(c) of the Act is a penal provision and such a provision
has to be strictly construed. Unless the case falls within the
four-corners of the said provision, penalty cannot be
imposed—The penalty can be imposed only if concealment
is found in the income tax returns—Since the assessee, may
be after being exposed in survey, had made complete
disclosure of his income in his income tax return and they
was no concealment or non-disclosure of income, no penalty
could have been imposed—Appeal dismissed.
Commissioner of Income Tax v. M/s. SAS
Pharmaceuticals .............................................................. 243
INDIAN CONTRACT ACT, 1872—Section 15 and 16—Code
of Civil Procedure, 1908—Section 34, Order IX Rule 8, Order
VI Rule 4—Petitioner was allotted work of construction of
flats—Disputes between parties referred to sole arbitrator—
Award rendered by arbitrator challenged before High Court—
As arbitrator had failed to consider a letter of petitioner
accepting responsibility for delay in execution of work, award
partly set aside and new arbitrator appointed to decide claims—
Arbitrator held delay in completion was on part of
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respondent—Award challenged before High Court—Plea
taken, impugned order is not based on any evidence placed
before arbitrator and that there is an error apparent on face
of award—There was no pleading to support story that letter
admitting delay was obtained from petitioner under duress or
coercion—Per contra plea taken, arbitrator had considered
evidence and concluded delay was attributable to respondent
at various stages of work—Held—A plea of coercion or
undue influence or duress has necessarily to be specifically
raised and pleaded as a fact—Though Code of Civil Proceedure
is not strictly applicable to arbitral proceedings, Principles
thereof, which are evolved to achieve fairness in proceedings,
are attached even to arbitral proceedings—To permit a party
to arbitration proceeding to raise oral plea of ‘‘coercion’’ or
‘‘duress’’ or ‘‘undue influence’’, would cause irreparable
injustice to opposite party as opposite party would be put to
grave disadvantage in dealing with such a vague and indefinite
plea which is devoid of particulars and specifics—Grant of
extension of time by respondent, till date of abandonment,
cannot necessarily lead to conclusion that delay was
attributable to respondent, and not petitioner—A party to a
contract has option to accept breach thereof by opposite party
and require opposite party to still complete contract—It is not
that whenever there is breach of contract by one party,
opposite party should rescind contract—Claim for tools &
plants stationed at site for prolonged period made rule of
Court—Arbitrator appointed to reconsider claims for expenses
incurred for delayed work/losses suffered by petitioner due
to contract getting prolonged.
M/s. Chugh Kathuria Engineers (P) Ltd. v.
Delhi Development Authority (DDA) ........................... 395
INDIAN EVIDENCE ACT, 1872—Section 4 and 36—
Constitution of India, 1950—Article 25 and 26— Respondent
filed a petition for declaring registration of her marriage with
appellant to be of no effect—As per respondent, for
membership of library in Jama Masjid, appellant persuaded
respondent to convert to Islam for this purpose—Respondent
singed certain documents which appellant claimed to be
registration of marriage and conversion certificate and that by
virtue of those respondent became his wife—Petition allowed
by Trial Court—Order challenged in appeal—Plea taken, trial
Court committed jurisdiction error in entertaining suit of
respondent—Documentary evidence to prove conversion of
respondent from Hindu religion to Muslim religion ignored by
trial Court—Respondent did not file any objection to
registration of marriage—Per contra, plea taken respondent
had never changed her religion and there is no marriage which
can be said to have taken place between appellant and
respondent—Held—In certain situations one party to marriage
belonging to one religion can take a decision to embrace
religion of other party but such a conversion should not be
undertaken merely to achieve purpose of marriage—It should
be done to embrace new religion with a will and desire to
completely follow tenets of new religion while simultaneously
forsaking tenets of religion being professed by a person prior
thereto—Respondent got prepared her conversion certificate
to marry appellant—She feigned to have adopted another
religion for purpose of wordly gain of marriage—Trial Court
rightly held there was no conversion of respondent from
Hinduism to Islam—Except nikahnama nothing proved on
record to establish fact that essential requirement of offer and
acceptance was made by parties in presence and hearing of
witnesses—Registration of marriage was obtained in violation
of mandatory conditions required for purpose of registration
as parties had never lived together since their marriage—
Marriage certificate is conclusive evidence to prove its issuance
by a proper and competent marriage officer after following
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due procedure prescribed under Act and Rules framed
thereunder—Said conclusive evidence cannot come in way of
parties challenging such a marriage certificate or marriage
itself—No merit in present appeal.
Faheem Ahmed v. Maviya @ Luxmi ........................... 216
— Section 68—Attesting witnesses—Limitation Act, 1963—
Article 137—Deceased executed Will dated 12.08.1971;
expired on 20.02.1984—Husband pre-deceased her—Survived
by five sons and three daughters—Property in question
comprise of a house in Karol Bagh—Bequeathed the ground
floor in favour son O.P.- first floor in favour of son V.P.—
Not give any share to other children—Will got registered during
her life time on 21.02.1978—All children of the testatrix except
the legal heir of V.P. had filed no objection to grant of
probate—Grant of probate sought on November 1994—
Objections filed inter-alia-alleging Will not executed by testatrix
in sound and disposing mind—She was completely deaf in
1971-not possible for anybody to communicate with her to
make her understand the contents of the Will—Also challenged
the execution, validity, contents and attestations of the Will
on the ground testatrix did not know English language—ADJ
observed the testimony of attesting witness does not inspire
confidence—Full of contradictions on material points—Cast
serious doubt on genuineness of Will—Not explained why Will
got registered after seven years of its execution and delay of
nine years in filing the probate petition—Dismissed probate
petition—Preferred appeal—Held—While granting the probate,
Court is obliged to see that there was no legal impediment in
the grant of probate—The only attesting witness denied the
signature of testatrix firstly on the Will itself in his
examination-in-chief and only on the suggestion in cross-
examination after about two years he remembered the testatrix
signing the Will—Second attesting witness not examined—The
attestation of Will by second witness not even whispered by
attesting witness—Attesting witness accepted testatrix did not
know English-9 years delay in filing probate petition not
explained—No reason to interfered with the decision—Appeal
Dismissed.
Yogesh Duggal & Ors. v. State & Ors. ...................... 175
— Section 73, Code of Criminal Procedure, 1973—Section 311A,
Constitution of India, 1950—Article 20—Appellants preferred
appeals to challenge their conviction under Section 302, 201,
384 read with Section 34 of Act—They urged, one of
circumstance i.e. delivery of ransom note in the handwriting
of the appellant Jaipal not proved—Also police did not have
power to take accused's handwriting under Section 73 of
Indian Evidence Act—Moreover, Section 311 A of Cr.P.C.
was incorporated in the statute book only w.e.f. 23.06.2006
and was not retrospective in its application—Held:- Obtaining
the handwriting of an accused during investigation is not hit
by Article 20 (3) of the Constitution of India as an accused
cannot be said to be a witness against himself, if he is asked
to give his handwriting for purpose of verification of any
document purported to be in his handwriting—Some forms
of testimonial acts lie outside the scope of Article 20(3)—
Obtaining appellant Jaipal's handwriting during investigation not
illegal.
Jaipal v. State................................................................. 553
INDIAN PENAL CODE, 1860—Section 302/34, 364—Case of
the prosecution that on night of incident, one Chotu
(absconder) went near tent house of PW3 at 9 p.m. and
started urinating—One person (not examined as witness)
objected. Chotu slapped him and left threatening to “see” him
later—Later Chotu returned at the spot with the two appellants
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and the three attacked the deceased—Appellant Anil Kumar
held the deceased by his mouth while appellant Tika Ram
caught hold of him and Chotu hit the deceased with an iron
rod on the head—PW13 and 16 woke up and raised an alarm
on which assailants fled—Trial Court convicted appellants for
offence u/s 302/34—Held, plan or site map drawn to scale is
admissible only if the witnesses corroborate the draftsman’s
statement that they showed him the places—Unclear if PW
16 could see the appellants when the deceased was attacked—
From evidence there is no doubt about the presence of
appellants in the assault—To attract common intention, mere
presence of co-accused is not always sufficient—No
universally acceptable formula that in such instances, the
intention to cause death cannot be attributed to such non-
participating co-accused; at the same time courts has to
recognize the need to exercised caution—Contention of the
appellants that even if they were present, their common
intention to kill deceased could not be proved beyond
reasonable doubt—Evidence established the presence of
accused and PW13 and PW16 having known them—None of
the witnesses deposed that either appellant was armed—
Appellants not present when earlier quarrel had taken place—
The person with whom, the main assailant Chotu quarrelled
was not examined—He was not present at spot of occurrence
and his connection or relationship with deceased not proved—
Weapon of offence (saria) not described by witnesses and
also not produced—Description given by PW16 about role
played by each appellant not clear—In view of uncertainty as
to role played by each appellant, it would not be possible to
discern a common intention to cause death of deceased—It
can be inferred that they shared the intention with the co-
accused to cause injury enough to subdue or take care of the
deceased i.e. intention of causing bodily injury as was likely
to cause death amounting to an offence punishable u/s 304
Part I—Appeals partly allowed—Conviction u/s 302/34 altered
to one u/s 304 Part I/34.
Anil Kumar Sharma @ Bobby v. Delhi State/NCT
Delhi .................................................................................. 82
— Section 302 and 34—Aggrieved appellants challenged their
conviction under Section 302/34—They urged, prosecution
witnesses i.e. brothers, mother and husband of deceased
turned hostile—Also, dying declaration of deceased can not
be sole basis of conviction as no fitness certificate given by
Doctor either on the dying declaration or just prior to making
dying declaration—Per contra, prosecution contended
appellants being mother in law, Jethani (wife of husband’s elder
brother), Devrani (wife of husband’s younger brother) and
Nanad (husband’s sister) held guilty for having burnt deceased
alive who received 90% burn injuries—Dying declaration of
stellar quality and wholly reliable; therefore it could be made
sole basis of conviction even though some prosecution
witnesses turned hostile—Held:- Endorsement on the dying
declaration “taken in my presence” cannot substitute for a clear
cut certificate of fitness—Moreover, endorsement on MLC
“fit for statement” should bear signatures of the doctor—
Contents of dying declaration do not inspire much confidence
and language in which it was recorded, was clearly not of
deceased but that of a police officer, so case against appellants
not free from doubt—Appellants acquitted.
Akbari Begum & Ors. v. State .................................... 328
— Section 363, 376, 511, Criminal Procedure Code, 1973—
Sections 235, 245, 325, 360, 361, 377—Aggrieved by judgment
and order on sentence, State preferred appeal on ground,
sentence of two and a half years imprisonment for conviction
under Section 376/511 IPC inadequate and calls for
4645
enhancement—Also, Trial Court fell into error in not awarding
minimum sentence of five years for attempting rape—Per
contra, amicus curiae on behalf of Respondent urged that in
appeal, by State on ground of inadequacy of sentence,
Accused/Respondent at same time has liberty to plead for his
acquittal or for reduction of sentence—Thus, case to be
considered on merits—Held:- A proper sentence is amalgam
of many factors such as the nature of the offence,
circumstances extenuating or aggravating of offence, prior
criminal record, if any, of offender, age of offender as to
employment, background of offender with reference to
education, home life, sobriety and social adjustment, emotional
and mental conditions of offender, prospects for rehabilitation
of offender, possibility of return of offender to normal life in
community, possibility of treatment of training of offender,
possibility that sentence may serve as a deterrent to crime by
offender or by others and current community need, if any,
for such a deterrent in respect to particular type of offence—
No reason found to disturb conviction of Respondent,
however, Court would exercise and interfere with sentencing
discretion of trial Court “where inadequacy of sentence is gross
or glaring or shocks courts conscious”—In given facts and
conspectus of circumstances, does not warrant interference
in order on sentence.
State GNCT of Delhi v. Mukesh .................................. 340
— Section 161—Prevention of Corruption Act, 1947—Sections
5(1) (d) and Sections 5 (2)—Respondent was supervisor of
Delhi Cantt. Area—He demanded Rs. 400/- for correction of
electoral rolls and addition of votes deleted—Raid conducted—
Respondent apprehended—After trial, the respondent was
acquitted—Appeal preferred by State—Held—It is evident that
in the entire testimony of PW-3 it is nowhere stated that the
Respondent demanded money—This evidence of PW3 is also
corroborated by PW 4 who also in his testimony does not
state that the Respondent demanded money; rather has stated
that at no stage money was demanded by the Respondent
either initially or at the time of trap—To constitute an offence
under Section 161 IPC & Section 5 (1) (d) of the Prevention
Corruption Act it is necessary that there is a demand of money
and the same is accepted for doing a favour—Demand of
Money is a sine qua non for the conviction of the accused—
Thus, in the absence of demand and the presumption, the
offence punishable under Sections 161 and 5 (1) (d) read with
5 (2) of the PC Act has not been proved beyond reasonable
doubt by the prosecution in the present case.
State (Govt. of NCT of Delhi) v. Girdhari
LaL Verma ...................................................................... 354
— Section 323, 148, 149—Moral Turpitude—Respondent
workman was employee of Delhi Vidyut Board—On
04.05.1973, he was convicted for offences punishable under
Sections 148/302/323 and 149 IPC—In Criminal appeal, the
High Court of Punjab and Haryana found him guilty of
offences under Sections 323/149/148 of IPC but the charges
levelled against him under Section 302 IPC were not found
to have been proven—On 30.09.1996, his services terminated
on the ground that he had been convicted for offences which
involved moral turpitude—Industrial dispute raised—Labour
Court vide award dated 17.12.2005, directed his reinstatement
with back wages and consequential benefits—Appellant
invoked jurisdiction—The workman was involved in
commission of a serious criminal offence which involved
moral turpitude—The workman contends that finding recorded
by labour Court is impeccable and do not warrant
interference—Single Judge held—The imposition of
punishment was excessive—The award passed by the labour
Court did not warrant interference—Letters Patent Appeal—
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Held—The punishment under Section 323 of the IPC has a
different contour but when a person is convicted under Section
148 of the Act, it establishes, in a way, the nature, attitude,
proclivity and propensity of the person concerned—The
petitioner was working as a peon in the Delhi Vidyut Board—
He got himself involved in a criminal case of this nature and
eventually, the conviction has been recorded under Sections
323/149 and 148 of the IPC—Regard being had to the
conviction in respect of the nature of an offence, as engrafted
under Section 148 of the IPC, we are disposed to think that
it involves an offence involving moral turpitude.
BSES Rajdhani Power Ltd. v. Union of India
& Ors. ............................................................................. 429
— Section 398—As per prosecution, accused with 3-4 persons
came to house of complainant to commit dacoity—Accused
armed with countrymade pistol—Other associates also armed
with weapons—Accused with associates forcibly entered
house of complainant—Complainant raised alarm—His friend
PW2 sitting inside came out—Appellant fired shot and tried
to flee—Appellant caught by complainant and PW2 with pistol
while others escaped—Police recovered one countrymade
pistol and five live cartridges from accused besides one empty
cartridge in the barrel—Co-accused arrested subsequently—
Trial Court convicted accused for offence u/s 398—Held, In
statement of PW3 complainant, nowhere alleged that appellant
and co-accused attempted to commit robbery—PW2 only
stated that when accused along with others entered, they
shouted ‘Loot Lo Mar Do’—Accused came with intention to
commit robbery which did not fructify into an attempt and
was at best preparation—Basic ingredients of 398 not made
out—Accused acquitted—Appeal Allowed.
Swaran Singh v. State ................................................... 527
— Section 302, 201, 384, 34—Indian Evidence Act, 1873—
Section 73, Code of Criminal Procedure, 1973—Section 311A,
Constitution of India, 1950—Article 20—Appellants preferred
appeals to challenge their conviction under Section 302, 201,
384 read with Section 34 of Act—They urged, one of
circumstance i.e. delivery of ransom note in the handwriting
of the appellant Jaipal not proved—Also police did not have
power to take accused's handwriting under Section 73 of
Indian Evidence Act—Moreover, Section 311 A of Cr.P.C.
was incorporated in the statute book only w.e.f. 23.06.2006
and was not retrospective in its application—Held:- Obtaining
the handwriting of an accused during investigation is not hit
by Article 20 (3) of the Constitution of India as an accused
cannot be said to be a witness against himself, if he is asked
to give his handwriting for purpose of verification of any
document purported to be in his handwriting—Some forms
of testimonial acts lie outside the scope of Article 20(3)—
Obtaining appellant Jaipal's handwriting during investigation not
illegal.
Jaipal v. State................................................................. 553
— Section 120B, 420, 467, 468 and 471—Prevention of
Corruption Act, 1988—Section 13(1) (d) and 13(2)—
Constitution of India, 1950—Article 19(1) (a), 21, 105 (1) and
326—Petitioner, a Parliamentarian in Judicial Custody filed writ
petition for permission to attend Parliament in Judicial
Custody—Plea taken, Parliamentarian has freedom of speech
subject only to rules and standing orders regulating procedure
of Parliament none of which prevents petitioner from attending
Parliament and speaking while in custody—Constitutional right
of petitioner to participate in Parlimentary proceedings and right
to vote in Parliament as elected representative is essence and
expression of Parliamentary democracy—Parliamentary
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democracy is basic feature of Constitution of India and there
is no reason for denying such participation to petitioner while
same is possible in judicial custody—Refusing participation in
Parliamentary proceedings to petitioner would deny him
opportunity to fulfill his constitutional objections to attend
proceedings of Parliament—Unless petitioner is so permitted,
Parliamentary Constituency which had elected him would go
unrepresented in Parliament—Public interest demands that
petitioner, be permitted to attend Parliament—Per contra, plea
taken offences with which petitioner is charged with are
extremely grave and serious causing huge wrongful pecuniary
benefits to certain private parties and consequent loss to public
exchequer—Some of other accused officials of the Organizing
Committee for Common Wealth Games of which petitioner
was chairman are still absconding—CBI apprehends that
petitioner may misuse liberty sought by way of present petition
to influence witnesses and tamper with evidence—Held—
Argument as raised by petitioner amounts to placing Members
of Parliament (M.P.) at a pedestal higher than their electorate—
Argument assumes work of a M.P. is more sacred and
important than work/vocation in which citizens who have
elected said Parliamentarian may be engaged in—Such
argument is archaic and creates two classes of citizens as in
a monarchy i.e. king and subject and is alien to Constitution—
Merely because petitioner is a Parliamentarian does not entitle
him to claim any exception from effect of being in detention—
It is not case of petitioner that vote of petitioner on any aspect
is vital or that without such participation citizens of his
constituency would suffer—Petitioner, in past, as per his
convenience has been missing Sessions of Parliament—When
petitioner could afford to miss parliament to spend time on
National Games or Participate in Games at China, his desire/
keenness to attend parliament can only be understood as
attempt for fresh air outside prison walls—Petitioner is not
entitled to relief claimed—Petition dismissed with costs of Rs.
1,00,000/- payable to Prime Minister’s National Relief Fund.
Suresh Kalmadi (In Judicial Custody) v. Union of
India & Ors. .................................................................. 795
— Sections 498A, Section 302, read with Section 34—Appellant
convicted under Section 498 (A) & 302 (IPC)—Trial Court
in addition to relying on the restimony of witnesses also relied
on the dying declaration recorded by the Doctor on MLC
Exhibit PW16 though rejected the dying the declaration PW5/
A recorded by PW-13 SI Raghunath Singh on the ground that
it was neither recorded in the presence of the Doctor to vouch
about the fitness of deceased nor was attested by any person
who was present at the time of recording the statement and
the statement had thumb impression in which ridges were
visible despite deceased having suffered 98% burns—Present
appeal filed by Appellants—It was observed that after the
judgment of five Judges Bench of the Supreme Court in
Laxman vs. State of Maharashtra (2002) 6 SCC 710, fitness
certificate in every dying declaration has become immaterial
and what is required to be seen is whether the person hearing
or recording the dying declaration was satisfied that the person
making the dying declaration is mentally fit—PW13’s
deposition that he had obtained fitness certificate from the
Doctor was not shaken in cross-examination to show that
deceased was not conscious—Also, there is no universal rule
that dying declaration recorded by Police Officer is unreliable
or must necessarily be made to a Magistrate—Since SDM had
expressed inability to reach Hospital and patient was critical,
it was duty of PW13 to record statement—There is also no
requirement of Law that dying declaration must be recorded
in a specified format and it is irrelevant if statement is not
recorded in question answer form—The dying declaration
Exhibit PW5/A recorded by PW3 rejected wrongly—The
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dying declaration coupled with other evidence sufficient to
prove guilt of Appellants.
Dharambir & Anr. v. State ........................................... 686
— Section 21—Constitution of India, 1950—Article 226—Right
to Information Act, 2005—Section 2(h)—Writ filed for
seeking mandamus for reinstatement and for payment of
wages, etc.—Question of maintainability of writ petition suo
moto raised by Court—On maintainability, plea taken DSMGC
is a statutory body empowered to manage educational and
other institutions—Members of DSMGC are public servants
within meaning of Indian Penal Code—Terms and conditions
of service of employees of DSMGC have statutory force—
Per contra plea taken, petitioners ought to invoke remedy of
Industrial Disputes Act—Held—Jurisdiction over disputes
between DSGMC and its employees including past employees
is, first of District Judge and Gurudwara Act provides for a
remedy to this Court against orders of District Judge—Act
on basis of which writ remedy is invoked against DSGMC,
having itself provided a remedy for disputes as subject matter
of these writ petition, writ petitions would not be maintainable
on this ground alone—Court would ordinarily not exercise
writ jurisdiction when alternative, efficacious remedy is
available—Present petitions raise disputed questions of fact
which can be appropriately adjudicated in proceedings before
District Judge than in writ jurisdiction—Petitioners directed
to approach Departmental Appellate Authority/District Judge.
Satpal Singh v. Delhi Sikh Gurdwara Management
Committee & Anr. .......................................................... 462
INDUSTRIAL DISPUTES ACT, 1947—Section 10—Indian Penal
Code, 1860—Section 323, 148, 149—Moral Turpitude—
Respondent workman was employee of Delhi Vidyut Board—
On 04.05.1973, he was convicted for offences punishable
under Sections 148/302/323 and 149 IPC—In Criminal appeal,
the High Court of Punjab and Haryana found him guilty of
offences under Sections 323/149/148 of IPC but the charges
levelled against him under Section 302 IPC were not found
to have been proven—On 30.09.1996, his services terminated
on the ground that he had been convicted for offences which
involved moral turpitude—Industrial dispute raised—Labour
Court vide award dated 17.12.2005, directed his reinstatement
with back wages and consequential benefits—Appellant
invoked jurisdiction—The workman was involved in
commission of a serious criminal offence which involved
moral turpitude—The workman contends that finding recorded
by labour Court is impeccable and do not warrant
interference—Single Judge held—The imposition of
punishment was excessive—The award passed by the labour
Court did not warrant interference—Letters Patent Appeal—
Held—The punishment under Section 323 of the IPC has a
different contour but when a person is convicted under Section
148 of the Act, it establishes, in a way, the nature, attitude,
proclivity and propensity of the person concerned—The
petitioner was working as a peon in the Delhi Vidyut Board—
He got himself involved in a criminal case of this nature and
eventually, the conviction has been recorded under Sections
323/149 and 148 of the IPC—Regard being had to the
conviction in respect of the nature of an offence, as engrafted
under Section 148 of the IPC, we are disposed to think that
it involves an offence involving moral turpitude.
BSES Rajdhani Power Ltd. v. Union of India
& Ors. ............................................................................. 429
— Section 17-B—Application under Section 17-B of the Act by
workman claiming that, he was not gainfully not employed
since 1994—Single Judge observed that the application was
filed in 2006 after 12 years—Workman directed to file his
5453
statements of bank accounts from 1994 till date, Telephone
bills, whether he resided in his own premises or rented
premises and also an affidavit in corporating these facts—
Aggrieved, appellant filed Letter Patent Appeal—The affidavit
in terms of Section 17-B clearing stating that respondent
workman was not gainfully employed already filed—Such
inquiry is not permissible under Section 17-B—Held—It is the
duty of the Court to arrive at a conclusion with regard to the
entitlement of the benefit under Section 17-B of the Act
keeping in view the decisions in Dena Bank (supra), Viveka
Nand Sethi (supra) K.B. Singh & Ors. (supra), Vinod Kumar
(supra) and Bhagawan Giri (supra)—The writ court has to
see whether the workman received adequate remunertaion
during such period and whether the respondent-management
has produced ample material to show that the workman had
been really gainfully employed—Mere survival would not be
enough—It will depend upon the factum of adequacy of
amount received—In the case at hand, as we perceive, the
learned Single Judge has erroneously observed that the
workman had filed an application after 12 years as the same
is not factually correct—It is clear that the appellant filed the
application in quite promptitute—The information that have
been directed by the learned Single Judge to be given by the
workman are in the realm of roving enquiry putting the entire
burden on the workman—Such a roving enquiry, is
unwarranted and, accordingly, the order impugned set aside.
S.K. Mitra v. Asst. General Manager State Bank
of India ........................................................................... 262
— Petitioner appointed in LIC as office attendant in 1963—
Posted in Meerut Division—Became a trade unionist—
Transferred to Mhow in Madhya Pradesh in November
1978—Did not comply with the transfer order—Letter dated
22.12.1978 directing the petitioner to join his duties at Mhow-
did not join duties-continued to address leave applications to
Divisional Office at Meerut—Again, vide letter dated
05.02.1979 asked to join duty at Mhow-Did not join-continued
to defy despite another letter dated 21.08.1979—Pleaded
illness-Panel of medical examiners at Medical College, Meerut
constituted-petitioner challenged the constitution of panel and
refused to appear—Transfer order modified on 26.04.1980
from Mhow to Panipat-modified order not complied with-
further directed to join duty at Panipat vide letter dated
15.05.1980—Asked to get in touch with Dr. Aggarwal for
medical examination-did neither-resorted to hunger strike-
submitted fitness certificate dated 21.05.1980—LIC (staff)
Regulation 1960—Regulation 39 lays down procedure to hold
an enquiry-holding of enquiry dispesed with by the Zonal
Manager—Charge sheet-cum-show cause Notice proposing
penalty of removal from service under Regulation 39 (1) (f)
issued on 21.06.1980—Reply not filed-kept on seeking time-
vide order dated 11.08.1980 discussing the charges and
documents in support of punishment of removal from service
under Regulation 39 (1) (f) imposed—Appeal against the
order-dismissed by the Managing Director—Memorial
preferred before the Chairman followed by apology—Writ
Petition before Allahabad High Court filed against the order
dated 10.08.1980—Dismissed—Special Leave Petition filed
before the Supreme Court—Liberty given to seek fresh
reference of the dispute to labour court—Process under
Industrial Disputes Act, 1947 invoked—Reference made to
CGIT—CGIT passed award dated 16.06.1998—Award of
CGIT challenged through the Writ Petition—Held—General
attitude of petitioner was that of defiance -decision to dispense
with holding of an enquiry not taken in a hurry-Concurred
with CGIT—Petition dismissed.
S.P. Arya v. Union of India & Ors. ........................... 808
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INDIAN REGISTRATION ACT, 1908—Registered Will—Grant
of Probate—Indian Evidence Act, 1872—Section 68—
Attesting witnesses—Limitation Act, 1963—Article 137—
Deceased executed Will dated 12.08.1971; expired on
20.02.1984—Husband pre-deceased her—Survived by five
sons and three daughters—Property in question comprise of
a house in Karol Bagh—Bequeathed the ground floor in favour
son O.P.- first floor in favour of son V.P.—Not give any share
to other children—Will got registered during her life time on
21.02.1978—All children of the testatrix except the legal heir
of V.P. had filed no objection to grant of probate—Grant of
probate sought on November 1994—Objections filed inter-alia-
alleging Will not executed by testatrix in sound and disposing
mind—She was completely deaf in 1971-not possible for
anybody to communicate with her to make her understand
the contents of the Will—Also challenged the execution,
validity, contents and attestations of the Will on the ground
testatrix did not know English language—ADJ observed the
testimony of attesting witness does not inspire confidence—
Full of contradictions on material points—Cast serious doubt
on genuineness of Will—Not explained why Will got registered
after seven years of its execution and delay of nine years in
filing the probate petition—Dismissed probate petition—
Preferred appeal—Held—While granting the probate, Court is
obliged to see that there was no legal impediment in the grant
of probate—The only attesting witness denied the signature
of testatrix firstly on the Will itself in his examination-in-chief
and only on the suggestion in cross-examination after about
two years he remembered the testatrix signing the Will—
Second attesting witness not examined—The attestation of Will
by second witness not even whispered by attesting witness—
Attesting witness accepted testatrix did not know English-9
years delay in filing probate petition not explained—No reason
to interfered with the decision—Appeal Dismissed.
Yogesh Duggal & Ors. v. State & Ors. ...................... 175
INDIAN SUCCESSION ACT, 1925—WILL—Grant of
Probate—Appeal—Deceased, father of respondent no.1
executed registered Will in regard to self acquired property in
favour of respondent no.1, his daughter excluding wife and
son—Wife and son contested the proceedings for grant of
probate—Filed joint objections inter-alia Will obtained and
procured fraudulently—Respondent no.1 neither resident with
deceased at village nor looked after him—Right of deceased
to bequeath property through Will challenged—Property not
self acquired, being ancestral—Respondent no.1 contended
that deceased filed a suit against objector wherein admitted
execution of Will in favour of respondent no.1—Deceased
was suffering from cancer—Objector used to harass and
torture deceased during his last days—Deceased executed
GPA, Agreement to sell, Affidavit etc. in her favour and in
favour of her husband out of love and affection—Respondent
no.1 examined herself; attesting witnesses, officials of sub-
registrar—and witnesses to prove the drafting of Will and
attestation of other documents—Objectors examined
themselves—ADJ observed, none objected that, deceased was
not in sound, disposing mind or was incapable of understanding
consequences of disposition—Attesting witnesses
trustworthy—Execution of Will proved—Appellant admitted
litigations between them and the deceased—Appellant had filed
maintenance applications against deceased and was living
separately from the deceased—Even filed preventive
proceedings against deceased under Criminal Procedure
Code—ADJ Held—Strained relationship; pendency of civil and
criminal proceedings and living separately were valid grounds
in the mind of deceased to exclude his son and wife from
benefit of his estate—Conduct not unnatural—Question of
property being ancestral or self acquired left to be decided
by civil court of concerned jurisdiction—Held—Will
registered; proved by clerk; two attesting witnesses proved
5857
the execution of Will—No evidence led by respondent to prove
Will in Question not signed by deceased testator—Admitted
criminal proceedings between deceased, and his wife and
sons—Appeal dismissed.
Smt. Chamno Devi v. Smt. Usha & Ors. .................... 133
— Section 278, 307—Late Rani Padmawati Devi died intestate
on 12.04.1987 leaving behind her husband, Raja Birendra
Bahadur Singh; two sons, namely Shivendra Bahadur Singh
(SBS) and Ravindra Bahadur Singh (RBS) and two daughters
Usha Devi and Sharda Devi—SBS filed Case No. 43/1987
seeking Letters of Administration under Section 278 of the
Indian Succession Act—The heirs of Late Rani Padmawati
Devi were respondent in the said petition—Issue was framed
on 18.3.1988—Letter of Administration granted to (LOA)
petitioners and petitioner SBS appointed as administrator—RBS
being the heir of her pre-deceased mother and claiming to have
1/5th share in the estate, filed application under Order IX Rule
13 of the CPC being IA No.4065/1988 on 18th July, 1988
setting aside the order dated 10th May, 1988 granting LOA—
Pending this application the petitioner under the authority of
LOA negotiated and entered into a sale transaction with the
appellant, Indian Associates. The purpose of transaction as
claimed by the petitioner as administrator was utilization of
the sale consideration to meet the liabilities relating to wealth
tax and income tax of the estate—According to appellant the
agreement to sell was entered into on 9th September, 1988 and
a sale deed was executed by the administrator on 11th October,
1988, but the same was not registered by the sub-Registrar—
Miscellaneous petition filed before Madhya Pradesh High
Court—The said writ petition came to be dismissed by the
Madhya Pradesh High Court—It is noted that a case regarding
excess land than the prescribed limited under the Urban Land
Ceiling Act was pending against Rani Padmawati Devi since
1977 before the competent authority at Raipur (M.P.)—Certain
conditions/restriction on use and sale of land had been imposed
on Rani Padmawati Devi by the concerned authority of
Madhya Pradesh Government—Later, the concerned authority
granted permission to sell the lands—This was challenged by
respondent in Madhya Pradesh High Court by way of writ—
This writ was allowed and order dated 20th September, 1988
whereby permission was granted to sell the land was
quashed—The absolute power of disposal of property
conferred on an executor or administrator as envisaged under
sub-section (1) is subject to sub-section (2) of Section 307
of the Indian Succession Act. It was madatory to seek
permission of the Court granting the probate or the LOA. as
the case may be, before entering into transaction of disposal
of immovable property as vested in them in their capacity as
executor or the administrator—As per Section 317 of the Act,
the administrator was required to exhibit in the Court the
inventory containing full account of the properties including
the creditors and debtors—Mere agreement to sell would not
entitle the appellant to have much say in the present
proceeding—Of course, the appellant may have the remedy
somewhere else in some other proceedings—Unregistered sale
deed is not a complete sale—No doubt, the sale deed in the
present case was executed and presented before the Sub-
Registrar, but as noted above, same was not registered because
of persistent stay and also because of Urban Lan Ceiling Act—
Section 54 of the Transfer of Property Act, Stipulates that
sale or transfer of immovable property or other intangible thing
is to be only by way of registered sale deed/instrument—No
ground for inference—Appeal dismissed.
M/s Indian Associates v. The State and Others .......... 153
— Section 63 (c)—WILL—Indian Registration Act, 1908—
Registered Will—Grant of Probate—Indian Evidence Act,
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1872—Section 68—Attesting witnesses—Limitation Act,
1963—Article 137—Deceased executed Will dated
12.08.1971; expired on 20.02.1984—Husband pre-deceased
her—Survived by five sons and three daughters—Property in
question comprise of a house in Karol Bagh—Bequeathed the
ground floor in favour son O.P.- first floor in favour of son
V.P.—Not give any share to other children—Will got registered
during her life time on 21.02.1978—All children of the testatrix
except the legal heir of V.P. had filed no objection to grant of
probate—Grant of probate sought on November 1994—
Objections filed inter-alia-alleging Will not executed by testatrix
in sound and disposing mind—She was completely deaf in
1971-not possible for anybody to communicate with her to
make her understand the contents of the Will—Also challenged
the execution, validity, contents and attestations of the Will
on the ground testatrix did not know English language—ADJ
observed the testimony of attesting witness does not inspire
confidence—Full of contradictions on material points—Cast
serious doubt on genuineness of Will—Not explained why Will
got registered after seven years of its execution and delay of
nine years in filing the probate petition—Dismissed probate
petition—Preferred appeal—Held—While granting the probate,
Court is obliged to see that there was no legal impediment in
the grant of probate—The only attesting witness denied the
signature of testatrix firstly on the Will itself in his
examination-in-chief and only on the suggestion in cross-
examination after about two years he remembered the testatrix
signing the Will—Second attesting witness not examined—The
attestation of Will by second witness not even whispered by
attesting witness—Attesting witness accepted testatrix did not
know English-9 years delay in filing probate petition not
explained—No reason to interfered with the decision—Appeal
Dismissed.
Yogesh Duggal & Ors. v. State & Ors. ...................... 175
LETTERS PATENT APPEAL—The appellant by the present LPA
has impugned the order dated 19.11.2009—Learned Single
Judge has quashed the demand for misuse charges and interest
as well as show cause notice—Further directed that on paying
Rs.6,37,123.73 towards misuse charges to the appellant, the
respondent’s application for conversion of the property from
lease hold to free hold shall be considered—The property
originally allotted to Tara Singh—Papers including Power of
attorney executed by Tara Singh submitted—Rs.43,337/- on
self assessment and Rs.10,561/- deposited towards
compensation fee pursuant to the letter written by the
appellant—Respondent received unstamped and unexecuted
conveyance deed with direction to get it stamped from the
Collector of Stamps—Respondent waited for about six years
and got the conveyance deed stamped on payment of
Rs.5,655/- and submitted the document vide receipt dated
30.10.2001—The property was being misused—In the present
case, the payment towards conversion charges including the
composition fee applicable as in cases of power of attorney
transaction was made on 20th December, 1994. Thereafter,
notice along with conveyance deed was sent to the respondent
on 7th March 1995 with direction to get it stamped from the
collector of Stamps. The aforesaid exercise was required to
be completed within 45 days, but the respondent had
deposited the original paper after getting the conveyance deed
stamped only on 6th October, 2001—It is held that the date
when the respondent had submitted the conveyance deed after
stamping should be treated as the date on which the complete
application for conversion was filed—The date on which the
respondent had made the payment or had received the copy
of the conveyance deed for stamping should be ignored and
should not be taken as the relevant point.
Delhi Development Authority v. Hans Raj Batheja .... 141
6261
— Appellant C.S. Aggarwal, Director of M/s Rockman Projects
Limited (referred to as RPL) made a representation for the
purpose of securing investment to Mr. Sameer Kohli, director
of M/s Kohli Housing and Development Pvt. Ltd—Intended
to develop one SEZ on 250 acres land situated at Delhi-Jaipur
Highway owned by RPL—Petitioner received in-principal
approval from the Govt. of India for the project—On the
representation, respondent no. 3 agreed to buy 74% shares
worth Rs. 185 crores in the Special Purpose Vehicle (SPL)
formed for this purpose—MOU was signed—Advance
payment of Rs. 40 crores was made by respondent no. 3 on
the condition that either this advance will be refunded back
to him or the land of 250 acres would be transferred in favour
of him in case the SEZ notification is not received by 31st
December 2008—Subsequently an amount of Rs. 3 crores
was given to the petitioner by respondent no. 3—No
notification could be received by RPL by 31.12.2008—Mr.
D.K. Jain, the other director of RPL issued a public notice
revoking all authority given to the petitioner to act on behalf
of RPL—After expiration of the dead line, respondent no.3
demanded his money back, but in Vain—Respondent made a
complaint, on the basis of which, FIR no. 266/09 was
registered against the appellant herein u/s 420/406/120-B
IPC—Appellant challenged the registration of FIR and sought
quashing of the same—Hon’ble Single Judge dismissed the
petition—Appellant preferred the Letter Patent Appeal under
clause 10 of the Letter Patent Act—Respondent took a primary
objection to the maintainability of the Letter Patent Appeal on
the point that judgment was passed in exercise of criminal
jurisdiction and the Letter Patent appeal against the order is
clearly barred by Clause 10 and 18 of Letters Patent Act—
Held—Proceedings under Article 226 of the Constitution
would be treated as original civil proceedings only when it
concerns civil rights—A fortiori, if it concerns a criminal
matter, then such proceedings would be original criminal
proceedings—Letter Patent would lie when the Single Judge
decides the writ petition in proceedings concerning civil
rights—On the other hand, if these proceedings are concerned
with rights in criminal law domain, then it can be said that
the Single Judge was exercising his ‘criminal jurisdiction’
while dealing with such a petition filed under Article 226 of
the Constitution—In a petition under Article 226 of the
Constitution when the High Court is exercising extraordinary
jurisdiction, the nature of proceedings, whether civil or
criminal, would depend upon the nature of right violated and
the nature of relief sought in the said petition—Writ of this
nature filed under Article 226 of the Constitution—Seeking
quashing of such an FIR would therefore be ‘‘criminal
proceedings’’ and while dealing with such proceedings, the
High Court exercises its ‘‘criminal jurisdiction’’—The LPAs
are barred and not maintainable—Dismissed.
C.S. Agarwal v. State & Ors. ...................................... 701
LIMITATION ACT, 1963—Article 137—Deceased executed Will
dated 12.08.1971; expired on 20.02.1984—Husband pre-
deceased her—Survived by five sons and three daughters—
Property in question comprise of a house in Karol Bagh—
Bequeathed the ground floor in favour son O.P.- first floor in
favour of son V.P.—Not give any share to other children—
Will got registered during her life time on 21.02.1978—All
children of the testatrix except the legal heir of V.P. had filed
no objection to grant of probate—Grant of probate sought on
November 1994—Objections filed inter-alia-alleging Will not
executed by testatrix in sound and disposing mind—She was
completely deaf in 1971-not possible for anybody to
communicate with her to make her understand the contents
of the Will—Also challenged the execution, validity, contents
and attestations of the Will on the ground testatrix did not
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know English language—ADJ observed the testimony of
attesting witness does not inspire confidence—Full of
contradictions on material points—Cast serious doubt on
genuineness of Will—Not explained why Will got registered
after seven years of its execution and delay of nine years in
filing the probate petition—Dismissed probate petition—
Preferred appeal—Held—While granting the probate, Court is
obliged to see that there was no legal impediment in the grant
of probate—The only attesting witness denied the signature
of testatrix firstly on the Will itself in his examination-in-chief
and only on the suggestion in cross-examination after about
two years he remembered the testatrix signing the Will—
Second attesting witness not examined—The attestation of Will
by second witness not even whispered by attesting witness—
Attesting witness accepted testatrix did not know English-9
years delay in filing probate petition not explained—No reason
to interfered with the decision—Appeal Dismissed.
Yogesh Duggal & Ors. v. State & Ors. ...................... 175
MOTOR VEHICLES ACT, 1988—Section 166—Three
deceased, post retirement from Indian Navy, employed with
private company on different posts, travelling together in a
Maruti Wagon R when car collided with Tata Truck—
Tribunal awarded compensation in favour of claimants of
three deceased—Contention of appellants that amount awarded
under head of “Loss of Dependency” inadequate—Held, future
prospects had wrongly not been considered—Tribunal wrongly
did not take allowances into consideration but only annual
salary after deducting 10% as income tax—All three deceased
below the age of 50 years, were mechanical engineers,
specially qualified professional persons working in the field
of their specialized capacity in permanent posts with promotion
prospects; thus future prospects should have been taken into
account—Appellants entitled for “future prospects” which
would be double of the amount of salary after deduction of
tax—Award modified with regard to “Loss of Dependency”—
Appeal allowed.
Anita Devi & Others v. United India Assurance
Co. Ltd. & Ors. ............................................................. 673
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES
ACT, 1985—Sections 20 & 50—As per prosecution, PW10
along with PW6 and PW7 patrolling on platform at Old Delhi
Railway Station—Secret information received by PW10 that
one person was sitting near the staircase of flyover with Ganja
in iron box—Raiding party constituted and accused nabbed—
Notice u/s 50 NDPS Act given to accused—30 kg Ganja
recovered from iron box of accused out of which 1 kg. taken
as sample—Trial Court convicted accused under Section 20—
Held, notice under Section 50 NDPS not properly given as
Investigating Authority was supposed to give accused the
option of a search either before a Gazetted Officers or a
Magistrate which was not done in present case—FSL Form
never sent to FSL Malviya Nagar and not proved in Court—
Since FSL Form not sent with Samples, samples doubtful—
Sample Ganja taken of 1 kg whereas weight was found to be
910.7 gms.—No explanation as to how weight of Ganja
reduced which casts doubt on sample—IO interpolated
Malkhana Register—FSL form not sent with samples—After
sealing samples, seal not handed over to independent person
but kept with IO—Prosecution case doubtful—Accused
acquitted—Appeal Allowed.
Bijay v. The State (G.N.C.T. of Delhi) ....................... 515
NEGOTIABLE INSTRUMENTS ACT, 1881—Section 138—
Complaint u/s 138 filed—Accused convicted by trial Court and
sentenced to undergo SI for one year and fine of Rs. 5,000/
-—Criminal Revision filed before Sessions Court—Substantive
6665
Sentence of one year SI done away with and fine enhanced
to Rs. 16,40,000/- with direction that entire fine amount be
given to complainant as compensation and in default accused
to undergo SI for one year—Fine Amount directed to be given
directly to complainant in four instalments of Rs.4,10,000/-
each—Accused filed revision before High Court—High Court
granted stay subject to deposit of Rs.10,00,000/- with
Registrar General within four weeks—Criminal Misc. Petition
for staying operation of impugned order passed by ASJ
vacated—Application u/s 424 and another application u/s 421
Cr.P.C. for sentence for imprisonment in default to be carried
out and for issuance of warrants respectively moved before
M.M.—Vide impugned order M.M. directed court notice to
be issued—Contention of applicant that trial Court should have
issued Non Bailable Warrants against convict instead of Court
notice—No question of issuing notice to convict arises
because there is no law that requires that a notice should be
given before a warrant of levy of fine is issued against the
person sentenced to fine—Trial Court directed to ensure arrest
of convict in accordance with law—Appeal Allowed.
Ashok Chachra v. The State ......................................... 789
— Section 138—Respondent no.1 filed complaint under Section
138 of Act—Aggrieved by summoning order passed by Senior
Civil Judge, petitioner preferred petition for quashing of said
order—Petitioner urged, cheque not dishonoured for reason
of insufficient funds or amount due thereon exceeded amount
arranged to be paid from account—However, there was no
discharge of legal liability of petitioner towards complainant—
Thus, case for dishonour of cheque not made out—Per contra,
Respondents urged, petitioner issued two cheques out of
which one cheque dishonoured and a legal liability on part of
petitioner existed as he had purchased shares from Respondent
and his wife—Held:- Where a cheque is dishonoured for any
reason, it has to be co-related to the insufficiency of funds in
account—Legislative intent is to stop dishonoring of cheque
and adopt a no-nonsense situation and punish the unscrupulous
person who purport to discharge this liability by issuing
cheques, not intending to honour it on account of insufficiency
of funds in their accounts—Petitioner’s contention that he had
no liability to pay, is a question of fact and can be determined
only through Trial—Petition dismissed.
M. Arun Ahluwalia v. Arun Oberoi & Anr. ............... 605
PREVENTION OF CORRUPTION ACT, 1947—Sections 5(1)
(d) and Sections 5 (2)—Respondent was supervisor of Delhi
Cantt. Area—He demanded Rs. 400/- for correction of
electoral rolls and addition of votes deleted—Raid conducted—
Respondent apprehended—After trial, the respondent was
acquitted—Appeal preferred by State—Held—It is evident that
in the entire testimony of PW-3 it is nowhere stated that the
Respondent demanded money—This evidence of PW3 is also
corroborated by PW 4 who also in his testimony does not
state that the Respondent demanded money; rather has stated
that at no stage money was demanded by the Respondent
either initially or at the time of trap—To constitute an offence
under Section 161 IPC & Section 5 (1) (d) of the Prevention
Corruption Act it is necessary that there is a demand of money
and the same is accepted for doing a favour—Demand of
Money is a sine qua non for the conviction of the accused—
Thus, in the absence of demand and the presumption, the
offence punishable under Sections 161 and 5 (1) (d) read with
5 (2) of the PC Act has not been proved beyond reasonable
doubt by the prosecution in the present case.
State (Govt. of NCT of Delhi) v. Girdhari
LaL Verma ...................................................................... 354
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PREVENTION OF CORRUPTION ACT, 1988—Section 13(1)
(d) and 13(2)—Constitution of India, 1950—Article 19(1) (a),
21, 105 (1) and 326—Petitioner, a Parliamentarian in Judicial
Custody filed writ petition for permission to attend Parliament
in Judicial Custody—Plea taken, Parliamentarian has freedom
of speech subject only to rules and standing orders regulating
procedure of Parliament none of which prevents petitioner
from attending Parliament and speaking while in custody—
Constitutional right of petitioner to participate in Parlimentary
proceedings and right to vote in Parliament as elected
representative is essence and expression of Parliamentary
democracy—Parliamentary democracy is basic feature of
Constitution of India and there is no reason for denying such
participation to petitioner while same is possible in judicial
custody—Refusing participation in Parliamentary proceedings
to petitioner would deny him opportunity to fulfill his
constitutional objections to attend proceedings of Parliament—
Unless petitioner is so permitted, Parliamentary Constituency
which had elected him would go unrepresented in
Parliament—Public interest demands that petitioner, be
permitted to attend Parliament—Per contra, plea taken
offences with which petitioner is charged with are extremely
grave and serious causing huge wrongful pecuniary benefits
to certain private parties and consequent loss to public
exchequer—Some of other accused officials of the Organizing
Committee for Common Wealth Games of which petitioner
was chairman are still absconding—CBI apprehends that
petitioner may misuse liberty sought by way of present petition
to influence witnesses and tamper with evidence—Held—
Argument as raised by petitioner amounts to placing Members
of Parliament (M.P.) at a pedestal higher than their electorate—
Argument assumes work of a M.P. is more sacred and
important than work/vocation in which citizens who have
elected said Parliamentarian may be engaged in—Such
argument is archaic and creates two classes of citizens as in
a monarchy i.e. king and subject and is alien to Constitution—
Merely because petitioner is a Parliamentarian does not entitle
him to claim any exception from effect of being in detention—
It is not case of petitioner that vote of petitioner on any aspect
is vital or that without such participation citizens of his
constituency would suffer—Petitioner, in past, as per his
convenience has been missing Sessions of Parliament—When
petitioner could afford to miss parliament to spend time on
National Games or Participate in Games at China, his desire/
keenness to attend parliament can only be understood as
attempt for fresh air outside prison walls—Petitioner is not
entitled to relief claimed—Petition dismissed with costs of Rs.
1,00,000/- payable to Prime Minister’s National Relief Fund.
Suresh Kalmadi (In Judicial Custody) v. Union of
India & Ors. .................................................................. 795
— Sections 7 & 13—Appellant aggrieved by his conviction under
Section 7 & 13(1)(d) of Act, had preferred appeal and urged
no evidence against him with regard to demand or acceptance
of any bribe money from complainant—Thus, his conviction
not proper—On behalf of State argument raised, from
testimony of independent witness proved that appellant
demanded as well as accepted bribe money for doing favour
to complainant; therefore, conviction legal—Held:- Under
Section 13(1)(d), it is required to be proved that accused, as
a public servant, obtained for himself or any other person any
valuable thing or pecuniary advantage by corrupt or illegal
means or that the misused his position in obtaining for himself
or any other person any valuable thing or pecuniary
advantage—Statutory presumption under Section 20 of Act
is available for offence punishable under Section 7 or Section
11 or Clause (a) and Clause (b) of Section 13 (1) and not for
Clause (d) of Section 13 (1)—For offence under Section
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13(1)(d), it will be required to be proved that some initiative
was taken by a person who receives and in that context
demand or request from him will be a pre-requisite—Appellant
rightly held guilty for offences.
R.K.P. Nishad v. C.B.I. ................................................ 635
PREVENTION OF FOOD ADULTERATION ACT, 1954—
Sections 7, 13, 16—Petitioner preferred appeal against
judgment, acquitting Respondent accused for offence
punishable under Section 7 of Act—Respondent was convicted
by learned Metroplitan Magistrate—On appeal by Respondent,
learned Additional Sessions Judge observed, sample obtained
by Food Inspector not homogeneous and consequently not
representative in character—Also, variation in reports of
Director, CFL and Public Analyst about content of adulteration
as well as in values, thus acquitted Respondent—Held:- Once
accused exercises his right under Section 13 (2) of Prevention
of Food Adulteration Act and voluntarily gets second sample
examined from Director, CFL, he does so at his own risk—
Report of Director, CFL, statutorily supersedes report of
Public, Analyst for all practical purposes but both still have
to be the looked in to for the purpose of arriving of the
conclusion as to whether sample was representative in
character or not—Ld Sessions Judge rightly concluded that
sample was not homogeneous—Leave to appeal declined.
State v. Sunil Dutt ......................................................... 679
RAILWAY PROTECTION FORCE (RPF) RULES, 1987—
Service Law—Petitioner constable in RPF attached with a
detachment deployed at railway station for static guard
alongwith ten others under the command of one head
constable—Deceased Naik Amarjeet Yadav was murdered at
railway station allegedly by petitioner—Petitioner annoyed with
deceased and had an argument with him—For that reason fired
three rounds from his service rifle at the deceased resulting
in instantaneous death—FIR registered by police u/s 302 IPC
against petitioner—In preliminary inquiry, allegations proved—
Disciplinary authority dismissed petitioner from service stating
that not reasonably practicable to hold a departmental inquiry—
In Appeal, order of disciplinary authority set aside and regular
departmental inquiry ordered on the charges of gross
remissness and negligence in discharge of duty, willful breach
of discipline and serious misconduct—He was kept under
suspension during the pendency—Charges proved against
him—Again dismissed from service by disciplinary authority—
Filed appeal against the order before Appellant Authority—
During the pendency of appeal, acquitted by the court due to
lack of evidence—Transpired that all witnesses examined in
the departmental inquiry not produced in criminal trial—
Represented to the Appellate Authority in view of acquittal
relating to the same incident the punishment in departmental
inquiry be set aside—Appeal dismissed being time barred—
Filed revision before revisional authority—Revision
dismissed—Preferred writ petition—Contended, in view of the
fact that he has been acquitted in the criminal proceedings
based on same set of allegations which constituted the
gravamen of departmental proceedings the order of
Discriptionary Authority should be quashed—Further
contended that he could not participate in disciplinary
proceedings since he was not paid subsistence allowance—
Held—Departmental inquiry and criminal proceedings operate
in their distinct and mutually exclusive jurisdictional areas—
In a disciplinary proceedings the area of investigation covers
the field of (a) enforcement of discipline (b) level of integrity
(c) misconduct pertaining to devotion towards duty—In
criminal proceedings the area of investigation covers the
culpability from the point of view of criminal law—Standard
of proof in the two proceedings are different—In the former,
it is preponderance of probability and in the latter beyond
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reasonable doubt—Rule of Evidence Act applicable in the
criminal trial; not applicable in the disciplinary proceedings
wherein any material having logical probative value to prove
or disprove the fact in issue relevant and admissible—In the
case in hand, the scope of departmental inquiry covering
disciplinary aspect wider and different and accordingly the
acquittal of the petitioner in the criminal proceedings has no
effect on the punishment of dismissal from service imposed
on him in the departmental proceedings—Further requirement
of furnishing a non-employment certificate by the suspended
employee to draw his subsistence allowance granted on
monthly basis to the employee to sustain himself—If the
suspended fails to submit the certificate, he cannot complain
about not getting the subsistence allowance—Writ Petition
Dismissed.
Rajesh Kr. Chaturvedi v. Union of India & Ors. ...... 106
SERVICE LAW—Petitioner constable in RPF attached with a
detachment deployed at railway station for static guard
alongwith ten others under the command of one head
constable—Deceased Naik Amarjeet Yadav was murdered at
railway station allegedly by petitioner—Petitioner annoyed with
deceased and had an argument with him—For that reason fired
three rounds from his service rifle at the deceased resulting
in instantaneous death—FIR registered by police u/s 302 IPC
against petitioner—In preliminary inquiry, allegations proved—
Disciplinary authority dismissed petitioner from service stating
that not reasonably practicable to hold a departmental inquiry—
In Appeal, order of disciplinary authority set aside and regular
departmental inquiry ordered on the charges of gross
remissness and negligence in discharge of duty, willful breach
of discipline and serious misconduct—He was kept under
suspension during the pendency—Charges proved against
him—Again dismissed from service by disciplinary authority—
Filed appeal against the order before Appellant Authority—
During the pendency of appeal, acquitted by the court due to
lack of evidence—Transpired that all witnesses examined in
the departmental inquiry not produced in criminal trial—
Represented to the Appellate Authority in view of acquittal
relating to the same incident the punishment in departmental
inquiry be set aside—Appeal dismissed being time barred—
Filed revision before revisional authority—Revision
dismissed—Preferred writ petition—Contended, in view of the
fact that he has been acquitted in the criminal proceedings
based on same set of allegations which constituted the
gravamen of departmental proceedings the order of
Discriptionary Authority should be quashed—Further
contended that he could not participate in disciplinary
proceedings since he was not paid subsistence allowance—
Held—Departmental inquiry and criminal proceedings operate
in their distinct and mutually exclusive jurisdictional areas—
In a disciplinary proceedings the area of investigation covers
the field of (a) enforcement of discipline (b) level of integrity
(c) misconduct pertaining to devotion towards duty—In
criminal proceedings the area of investigation covers the
culpability from the point of view of criminal law—Standard
of proof in the two proceedings are different—In the former,
it is preponderance of probability and in the latter beyond
reasonable doubt—Rule of Evidence Act applicable in the
criminal trial; not applicable in the disciplinary proceedings
wherein any material having logical probative value to prove
or disprove the fact in issue relevant and admissible—In the
case in hand, the scope of departmental inquiry covering
disciplinary aspect wider and different and accordingly the
acquittal of the petitioner in the criminal proceedings has no
effect on the punishment of dismissal from service imposed
on him in the departmental proceedings—Further requirement
of furnishing a non-employment certificate by the suspended
employee to draw his subsistence allowance granted on
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monthly basis to the employee to sustain himself—If the
suspended fails to submit the certificate, he cannot complain
about not getting the subsistence allowance—Writ Petition
Dismissed.
Rajesh Kr. Chaturvedi v. Union of India & Ors. ...... 106
— Pay Parity between Inspector Grade-I (Prosecution) RPF and
Senior Public Prosecutor with CBI and Delhi Police—Petitioner
working as Inspector Grade-I (Prosecution) under RPF sought
parity of pay with Senior Public Prosecutor, CBI and Delhi
Police on the principle of equal work equal pay. Held—
Determination of pay scale-domain of executive—Court
intervention has to be slow-cannot assign itself role of an
expert-only where it is apparently manifest that posts are
identical-denial of Article 14 to those placed in lower pay scales
within the domain of writ court—Instant case-difference in
source of recruitment-prosecution conducted by Senior Public
Prosecutor Grade I with RPF relate to petty offences unlike
Public Prosecutors with CBI and Delhi Police—Qualitative
difference in duties—Recommendation of RPF to Finance
Wing—No justification.
Braham Prakash Dutta and Anr. v. Railway Protection
Force and Ors. ............................................................... 576
SPECIAL ECONOMIC ZONES ACT, 2005—Section 26(1) (e),
26(2), 51, 55 and 58—Special Economic Zone Rules, 2006—
Rule 31—Central Excise Act, 1994—Section 37B—Payment
of whole service tax exempted on services provided to a
Developer or Units of SEZ by any service provider, for
purpose of development, operation and maintenance of SEZ
or for setting up of a SEZ unit or for manufacture of goods
by SEZ Units, on satisfaction of certain conditions—Impugned
circular clarified that service tax is exempted on provision of
only such services which are rendered by service providers
to Developer or Unit for its authorized operation within area
of SEZ—Circular challenged in writ petition before High Court
—Plea taken, only condition required for availing exemption
from payment of service tax by a Developer/Entrepreneur is
that taxable service should be used for carrying on authorized
operations by Developer/Entrepreneurs—Location of service
provider or place of service is entirely irrelevant for purpose
of this exemption—Per contra plea taken, service tax
exemption is available only for services which are provided
to carry on authorized operation in a SEZ—Held—Only
condition that is required to be satisfied to avail service tax
benefit is that services must be rendered for purpose of
carrying out ‘‘authorized operations in a special economic
zone’’—If intention of legislature was to exempt only those
services from levy of service tax that are rendered within SEZ,
legislature would have categorically stated so in statute—A
subordinate legislation has to confirm to parent statute and
any subordinate legislation inconsistent to provisions of parent
statute is liable to be set aside—Circulars being executive/
administrative in character cannot supersede or override Act
and statutory Rules—Impugned circular seeks to impose a
condition that was not intention of legislature in SEZ Act or
Rules and is liable to be set aside.
M/s. Jindal Stainless Limited & Anr. v. Union of
India & Ors. .................................................................. 373
SPECIAL MARRIAGE ACT, 1954—Section 7, 8, 13(2), 15(a),
16, 24(2), 25 (iii) (a & b), 39, 40 (c)—Indian Evidence Act,
1872—Section 4 and 36—Constitution of India, 1950—Article
25 and 26— Respondent filed a petition for declaring
registration of her marriage with appellant to be of no effect—
As per respondent, for membership of library in Jama Masjid,
appellant persuaded respondent to convert to Islam for this
purpose—Respondent singed certain documents which
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appellant claimed to be registration of marriage and conversion
certificate and that by virtue of those respondent became his
wife—Petition allowed by Trial Court—Order challenged in
appeal—Plea taken, trial Court committed jurisdiction error in
entertaining suit of respondent—Documentary evidence to
prove conversion of respondent from Hindu religion to Muslim
religion ignored by trial Court—Respondent did not file any
objection to registration of marriage—Per contra, plea taken
respondent had never changed her religion and there is no
marriage which can be said to have taken place between
appellant and respondent—Held—In certain situations one
party to marriage belonging to one religion can take a decision
to embrace religion of other party but such a conversion should
not be undertaken merely to achieve purpose of marriage—It
should be done to embrace new religion with a will and desire
to completely follow tenets of new religion while
simultaneously forsaking tenets of religion being professed by
a person prior thereto—Respondent got prepared her
conversion certificate to marry appellant—She feigned to have
adopted another religion for purpose of wordly gain of
marriage—Trial Court rightly held there was no conversion
of respondent from Hinduism to Islam—Except nikahnama
nothing proved on record to establish fact that essential
requirement of offer and acceptance was made by parties in
presence and hearing of witnesses—Registration of marriage
was obtained in violation of mandatory conditions required for
purpose of registration as parties had never lived together since
their marriage—Marriage certificate is conclusive evidence to
prove its issuance by a proper and competent marriage officer
after following due procedure prescribed under Act and Rules
framed thereunder—Said conclusive evidence cannot come in
way of parties challenging such a marriage certificate or
marriage itself—No merit in present appeal.
Faheem Ahmed v. Maviya @ Luxmi ........................... 216
SPECIFIC RELIEF ACT, 1963—Agreement to sell—Father of
petitioner entered into agreement to sell suit property in year
1978—Suit for specific performance decreed by ADJ in
favour of plaintiff in year 1987—Civil appeal dismissed by
Supreme Court in year 2007—DDA demanded unearned
increase (UEI)—Demand challenged in High Court—Plea
taken, crucial date for determining market rate for UEI would
be date of agreement to sell and not date of decree of trial
Court—Per contra, plea taken up to time of decree of trial
Court, transaction between parties was incomplete and attained
finality after decision of Supreme Court—DDA acted
reasonably and took date of decree of trial Court as relevant
date—Held—For purpose of calculation of UEI, date of
transaction has necessarily to be date of agreement to sell
which indicates sale consideration—Transfer emanates from
agreement to sell itself as that would have logically led to
execution of sale deed—Supreme Court directed petitioner to
pay Rs. 5 lacs as a matter of good gesture—For all practical
purposes sale consideration should be sum mentioned in
agreement to sell plus Rs. 5 lacs—DDA directed to issue fresh
demand of UEI.
Rajiv Goela and Anr. v. Delhi Development
Authority .............................................................................. 1
TRADE MARKS ACT, 1999—Deceptive similarity—Plaintiff
owning and managing destination spas, luxury business leisure
hotels in India and abroad providing services under Trade
Mark and Service Mark ‘Ananda’—Pre-launch advertising
campaign of residential complex under name ‘Park View
Ananda’ launched by defendant for promoting residential
complexes—Claim of plaintiff that defendant adopted well
known mark ‘Ananda’ to create association with plaintiff’s
properties and to ride on goodwill and reputation of plaintiff—
Held, difficult to accept that trade mark ‘Ananda’ had become
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a well known trade mark or that it came to be associated
exclusively with plaintiff’s company so as to indicate a
connection with the plaintiff company—No material on record
to show that the mark ‘Ananda’ had acquired such a high
brand equity in India that its use by persons other than plaintiff
would dilute its reputation—Difficult to say that word
‘Ananda’ had become distinctive with plaintiff company— No
evidence of any legal proceedings having been initiated by the
plaintiff company against registration and/or user of ‘Ananda’
by others—Goods and services of defendant in wholly
unrelated category compared to plaintiff—Plaintiff failed to
make out prima facie case for grant of injunction against
defendant—Application dismissed.
IHHR Hospitality Pvt. Ltd. v. Bestech India
Pvt. Ltd. .......................................................................... 364
— Section 29—Ad-interim injunction for restraining infringement
of trademark-Plaintiff, proprietor of registered trademark
‘lemon tree’, was in continuous use of the same since October
2002—Had eleven operational hotels and eight under
construction using the trademark-defendant adopted identical
trademark in 2009 in respect of its housing project at a
distance of 2 kms from plaintiff’s hotel which came into
existence in 2008—Plaintiff filed the suit for injunction along
with application for ad-interim injunction-defence of the
defendant-inter alia-customers of both the business were
different-invested huge amount-no likelihood of confusion-used
trademark only in respect of one project-undertook to confine
and restrict only in respect of one project and not to use the
same for any other project. Held—Plaintiff entitled to grant
of ad-interim injunction-defendant adopted trademark without
justification-defence of the defendant that he invested huge
amount-rejected as the suit was instituted in 2009 itself-likely
to cause confusion that plaintiff and defendant have
association—Even if services are not similar, plaintiff is entitled
to protection as it has reputation in India—Balance of
convenience lies in favour of the plaintiff who would suffer
irreparable loss due to confusion—Conduct of defendant did
not appear honest—Warrants imposition of cost—Defendant
directed to change its name within four weeks.
M/s. Krizm Hotels Private Limited v. M/s. Vaishnavi
Estates (P) Ltd. .............................................................. 759
VOLUNTARY RETIREMENT SCHEME (VRS)—Entitlement to
benefit of pension scheme—Respondent introduced VRS
before the pension scheme became operational—Appellants
contended that they opted for pension scheme and therefore
be paid pension fact that scheme became operational later-no
effect. Held—In LPA No.1262/2007 dated 5th October, 2007,
Delhi Transport Corporation vs. Kishan Lal Sehgal and
Ors. Held-entitled to pension-in W.P.(C) No. 14027/2009
[DTC Vs. Madhu Bhushan Anand, 2010 (172) DLT 668]
right to pension was denied as higher ex-gratia was paid-ratio
cannot be reconciled matter referred to larger bench.
R.D. Gupta & Ors. v. D.T.C. & Anr. ........................ 277
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