GENERAL
NORMS TO BE OBSERVED IN ALL CASES OF DEATH
AND GRIEVOUS INJURY IN POLICE ENCOUNTERS
I N THE THREE WRIT PETITIONS, WHICH WERE
FILED BY PEOPLE'S Union for Civil Liberties (PUCL)
before the Bombay High Court, the issue of
genuineness or otherwise of nearly 99 encounters
between the Mumbai police and the alleged criminals
resulting in death of about 135 persons between 1995
and 1997 were raised. Inter alia, the following prayers
were made:
i) directing the Respondent Nos. 1 to 3 to
furnish the particulars regarding the number
of persons killed in last one year in police
encounters, their names, addresses, the
circumstances in which they were killed, the
inquiries, if any, conducted with respect to
the said killings and any other relevant
information and the action taken, if any , by
them;
ii) directing the respondent No. 1 i.e. State of
Maharashtra to register offence under
Section 302 of Indian Penal Code and other
enactments against the police officers found
prima facie responsible for the violations of
fundamental rights and other provisions of
the Indian Penal Code and other relevant
enactments;
iii) directing the 4th respondent viz. the
Coroner of Mumbai to submit a detailed
report and the details of action taken by him
under the provisions of Coroners Act 1871;
iv) directing an appropriate authority to
enquire into and report to this Court in all the
police encounters that have taken place not
only in the city of Mumbai but also in the
entire State of Maharashtra in which persons
have been killed or injured in police
encounters;
v) directing the State of Maharashtra to
constitute the Maharashtra State Human
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Rights Commission as provided under
Section 21 and other provisions contained in
the Human Rights Act 1993;
vi) directing the State Government to frame
appropriate guidelines governing planning
and carrying out encounters for the purpose
of protection of life and liberty guaranteed
under Article 21 read with Article 14 of the
Constitution of India.
While considering the above prayers, the High Court
directed the following guidelines to be followed
necessarily and mandatorily by the police in the State:
1. Whenever the respondents-police are on
the receipt of intelligence or a tip off about
the criminal movements and activities
pertaining to the commission of grave crimes,
it shall be entered into a case diary if the
receiving authority is the police officer of a
particular police station, the relevant entry
has to be made in the General diary and if the
receiving authority is the higher police
officer, the relevant entry to the said ef fect
has to be made by a separate diary kept and
provided therefore and then pursue further in
accordance with the procedural law.
2. Regarding any encounter operation is over
and persons are killed or injured and the same
is reported to either orally or writing to the
police in furtherance of Section 154 of the
Criminal Procedure Code, it shall be registered
in Crime Register of that particular police station
and that further the said First Information
Report along with copies to the higher officials
and the Court in original shall be sent with
immediately without any delay whatsoever
through proper channel so as to reach to the
Court without any delay at all. A report, as
enjoined under Section 157(1) of the Criminal
February 2015 I Lawteller I 55
GENERAL
Procedure Code, shall also be followed
necessarily by the concerned police station.
3. After setting the law in motion by
registering the First Information Report in
the Crime Register by the concerned police
officer of the particular police station, the
investigating staff of the police shall take
such steps by deputing the man or men to
get the scene of crime guarded so as to avoid
or obliterate or disfigure the existing physical
features of the scene of occurrence or the
operation encounter. This guarding of the
scene of occurrence shall continue till the
inspection of occurrence takes place by the
investigating staff of the police and
preparation of spot panchnama and the
recovery panchnama.
4. The police officer who takes part in the
operation encounter or the investigating
officer of the concerned police station, shall
take all the necessary efforts and
arrangements to preserve finger prints of the
criminals, or the dreaded gangster of the
weapons who handled immediately after the
said criminal was brought down to the ground
and incapacitated and that the said
fingerprints, if properly taken and preserved,
must be sent to the Chemical Analyzer for
comparison of the fingerprints of the dead
body to be taken.
5. The materials which are found on the scene
of occurrence or the operation encounter and
such of the materials including the blood
stained earth and blood stained materials and
the sample earth and other moveable physical
features, shall also be recovered by the
investigating staff under the cover of
recovery panchnama attested by the
independent witnesses.
6. To fix the exact date and actual place of
occurrence in which operation encounter has
56 I Lawteller I February 2015
taken place, a rough sketch regarding the
topography of the existing physical features
of the said place shall be drawn by the police
or the investigating staff of the police either
by themselves or by the help of the staff of
the Survey Department even during the spot
panchanama is prepared.
7. The inquest examination shall be
conducted by the investigating staff of the
police on the spot itself without any delay
and statements of the inquest witnesses are
to be recorded under Section 161 of the Code
of Criminal Procedure and the inquest
panchnama shall be sent along with the
above case record prepared along with the
First Information Report without any delay
whatsoever to the Court.
8. If the injured criminals during the operation
encounter are found alive, not only that they
should be provided medical aid immediately
but also arrangements and attempts shall be
taken by the police to record their statements
under Section 164 of the Criminal Procedure
Code either by a Magistrate, if possible and
if not, by the Medical Officer concerned duly
attested by the hospital staff mentioning the
time and factum that while recording such
statements the injured were in a state of
position that they will be able to give
statements and the connected certificates by
the doctors appended thereto.
9. After the examination of further witnesses
and completing the investigation inclusive of
securing the accused or accused persons, the
concerned police is directed to send final
report to the Court of competent jurisdiction
as required under Section 173 of the Criminal
Procedure Code for further proceeding.
10. Either in sending the First Information
Report or sending with the general diary
entry referred in the guideline nos. 1 and 2,
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the concerned police shall avoid any iota of
delay under any circumstances whatsoever
so also rough sketch showing the
topography of the scene and the recovery of
the materials and the blood stained materials
with the sample earth and the blood stained
earth with the other documents viz., the spot
panchnama, recovery panchnama-all seem
very vital documents-the respondents-police
are also directed to send them to the Court
of concerned jurisdiction without any delay .
PUCL was not satisfied with the adequacy granted by
the High Court and, consequently , it filed three
special leave petitions against the judgement and
order dated 22-25.2.1999. The Supreme Court has laid
down guidelines in such cases which are equally
applicable in grievous cases in police encounter . The
Supreme Court directed that the norms must be strictly
observed in all cases of death and grievous injury in
police encounters.
The operative part of the judgement read as under :
Whenever the police is in receipt of any intelligence or
tip-off regarding criminal movements or activities
pertaining to the commission of grave criminal offence,
it shall be reduced into writing in some form (preferably
into case diary) or in some electronic form. Such
recording need not reveal details of the suspect or the
location to which the party is headed. If such
intelligence or tip-off is received by a higher authority,
the same may be noted in some form without revealing
details of the suspect or the location.
TTTTTTT
If pursuant to the tip-off or receipt of any intelligence,
as above, encounter takes place and firearm is used by
the police party and as a result of that, death occurs,
an FIR to that effect shall be registered and the same
shall be forwarded to the court under section 157 of the
Code without any delay. While forwarding the report
under Section 157 of the Code, the procedure prescribed
under Section 158 of the Code shall be followed.
TTTTTTT
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GENERAL
An independent investigation into the incident/
encounter shall be conducted by the CID or police team
of another police station under the supervision of a
senior officer (at least a level above the head of the
police party engaged in the encounter). The team
conducting inquiry/investigation shall at a minimum,
seek:
(a) To identify the victim; colour photographs of
the victim should be taken;
(b) To recover and preserve evidentiary material,
including blood-stained earth, hair, fibers and
threads etc., related to the death;
(c) To identify scene witnesses with complete
names, addresses and telephone numbers and
obtain their statements (including the statements
of police personnel involved) concerning the
death;
(d) To determine the cause, manner, location
(including preparation of rough sketch of
topography of the scene and, if possible, photo/
video of the scene and any physical evidence)
and time of death as well as any pattern or
practice that may have brought about the death;
(e) It must be ensured that intact fingerprints of
deceased are sent for chemical analysis. Any other
fingerprints should be located, developed, lifted
and sent for chemical analysis;
(f) Post-mortem must be conducted by two
doctors in the District Hospital, one of them, as
far as possible, should be Incharge/Head of the
District Hospital. Post-mortem shall be video-
graphed and preserved;
(g) Any evidence of weapons, such as guns,
projectiles, bullets and cartridge cases, should
be taken and preserved. Wherever applicable,
tests for gunshot residue and trace metal
detection should be performed.
(h) The cause of death should be found out,
whether it was natural death, accidental death,
suicide or homicide.
TTTTTTT
A Magisterial inquiry under Section 176 of the Code
February 2015 I Lawteller I 57
GENERAL
must invariably be held in all cases of death which
occur in the course of police firing and a report thereof
must be sent to Judicial Magistrate having jurisdiction
under Section 190 of the Code.
TTTTTTT
The involvement of NHRC is not necessary unless there
is serious doubt about independent and impartial
investigation. However, the information of the incident
without any delay must be sent to NHRC or the State
Human Rights Commission, as the case may be.
TTTTTTT
The injured criminal/victim should be provided medical
aid and his/her statement recorded by the Magistrate
or Medical Officer with certificate of fitness.
TTTTTTT
It should be ensured that there is no delay in sending
FIR, diary entries, panchnamas, sketch, etc., to the
concerned Court.
TTTTTTT
After full investigation into the incident the report
should be sent to the competent court under Section 173
of the Code. The trial, pursuant to the charge-sheet
submitted by the Investigating Officer , must be
concluded expeditiously.
TTTTTTT
In the event of death, the next of kin of the alleged
criminal/victim must be informed at the earliest.
TTTTTTT
Six monthly statements of all cases where deaths have
occurred in police firing must be sent to NHRC by DGPs.
It must be ensured that the six monthly statements reach
to NHRC by 15th day of January and July, respectively.
The statements may be sent in the following format
along with post mortem, inquest and, wherever
available the inquiry reports:
(i) Date and place of occurrence.
(ii) Police Station, District.
(iii) Circumstances leading to deaths.
(a) Self defence in encounter.
(b) In the course of dispersal of unlawful assembly.
(c) In the course of affecting arrest.
58 I Lawteller I February 2015
(iv) Brief facts of the incident.
(v) Criminal Case No.
(vi) Investigating Agency.
(vii) Findings of the Magisterial Inquiry/Inquiry
by Senior Officers:
(a) disclosing, in par ticular, names and
designation of police officials, if found
responsible for the death; and
(b) whether use of force was justified and action
taken was lawful.
TTTTTTT
If on the conclusion of investigation the materials/
evidence having come on record show that death had
occurred by use of firearm amounting to offence under
the IPC, disciplinary action against such officer must
be promptly initiated and he be placed under
suspension.
TTTTTTT
As regards compensation to be granted to the
dependants of the victim who suffered death in a police
encounter, the scheme provided under Section 357-A of
the Code must be applied.
TTTTTTT
The police officer(s) concerned must surrender his/her
weapons for forensic and ballistic analysis, including
any other material, as required by the investigating
team, subject to the rights under Article 20 of the
Constitution.
TTTTTTT
An intimation about the incident must also be sent to
the police officer's family and should the family need
services of a lawyer/counseling, same must be offered.
TTTTTTT
No out-of-turn promotion or instant gallantry rewards
shall be bestowed on the concerned officers soon after
the occurrence. It must be ensured at all costs that such
rewards are given/recommended only when the
gallantry of the concerned officers is established beyond
doubt.
TTTTTTT
If the family of the victim finds that the above procedure
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has not been followed or there exists a pattern of abuse
or lack of independent investigation or impartiality by
any of the functionaries as above mentioned, it may
make a complaint to the Sessions Judge having
territorial jurisdiction over the place of incident. Upon
such complaint being made, the concerned Sessions
Judge shall look into the merits of the complaint and
address the grievances raised therein.
TTTTTTT
REINSTATEMENT IN SERVICE ORDERED,
BUT NO BACK WAGES
R AM BAHADUR PANDEY & ANR. (THE
APPELLANTS) WERE working as Assistant
Teachers in Tribal Primary Schools, managed by Bhotia
Tribal Service Society, which are recognized schools by
the State of Uttrakhand. Certain complaints had been
received against them with regard to their work and
therefore, after serving show-cause notices upon the
appellants, their services had been terminated by orders
dated 25th June, 1998.
The appellants had challenged the validity of the
action taken against them by filing writ petitions in the
Allahabad High Court, which had been subsequently
transferred to the High Court of Uttrakhand at
Naninital, upon bifurcation of the erstwhile State of Uttar
Pradesh. After hearing the concerned parties, the High
Court had disposed of the said writ petitions vide order
dated 18th August, 2006, whereby the Secretary, Samaj
Kalyan, Government of Uttrakhand was directed to look
into the matter and pass an appropriate order . In
pursuance of the said order , the Secretary, Samaj
Kalyan, Government of Uttrakhand, had considered the
matter with regard to termination of services of the
appellants and had come to a conclusion that the
Government had no role to play in the matter as the
appellants were employees of a Society, which was a
self-financed society.
In pursuance of the aforestated order passed by the
Secretary, Samaj Kalyan, Government of Uttrakhand, the
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SERVICE
Authorities relied upon :2013 (11) SCC 525, 1994 (Suppl.
1) SCC 143.
Reference : Supreme Court. People's Union for Civil
Liberties & Anr. v. State of Maharashtra & Ors., criminal
appeal no. 1255 of 1999 (from the Judgement and Order
dated 22.2.1999-25.2.1999 of the High Court of Judicature
at Bombay in Criminal Writ Petition No. 1146 of 1997).
—————
appellants had again approached the High Court of
Uttrakhand at Nainital by filing Writ Petition No. 452
of 2009 (SS), wherein they had challenged the orders
whereby their services had been terminated. The said
petition had been dismissed and therefore, the
appellants had filed Special Appeal No. 130 of 2009 in
the High Court. The said appeal was partly allowed vide
order dated 29th July, 2009, whereby the matter had
been remanded to the learned Single Judge for
considering whether the appellant were entitled to
salary for the period prior to termination of their
services. The appellate Court, however , did not
interfere with the orders of termination i.e. the orders
of termination had been confirmed.
The appellants filed special leave petition against the
judgement of the High Court. The Supreme Court set
aside the impugned judgement delivered by High Court
and directed that the appellant reinstated in the service
within two months and in view of the fact that their
appointments were not in accordance with the Rules,
they shall not be paid backwages, held the Supreme
Court.
The operative part of the judgement read as under :
The appellants were working as Assistant Teachers in
recognized schools. In view of the fact that the appellants
were working in recognized schools, according to Rule
11 of the Rules, it was necessary to obtain prior written
February 2015 I Lawteller I 59
GENERAL
approval of the Basic Shiksha Adhikari before
terminating their services. It is an admitted fact that no
such prior approval had been obtained before
terminating services of the appellants and therefore,
there was a clear violation of the provisions of Rule 11
of the Rules.
TTTTTTT
There might be irregularities in appointment of the
appellants as Assistant Teachers in the past but as they
were working in the schools duly recognized under the
Rules, in our opinion, it was obligatory on the part of
the Management to follow the provisions of Rule 11 of
the Rules while terminating services of the appellants
by way of punishment.
TTTTTTT
REQUIREMENT U/S 313 Cr.PC, NOT
MERE FORMALITY
S WARAN KAUR, LODGED AN FIR NO. 173AT P.S.
KOTWALI, District Kapurthala on 15.10.1998
alleging that the marriage between her daughter, Kuljit
Kaur, as solemnized with the accused-appellant as per
religious rites on 7.1.1991 and in the wedlock a son,
namely, Manpreet Singh, was born. There was
incompatibility between the husband and wife as a
consequence of which the accused was ill treating Kuljit
Kaur. Initially both of them were staying in a rented
house at Kapurthala but in March 1998 they shifted to
another rented house situated in Mohalla Preet Nagar,
Near Jhanda Mal School, Kapurthala, and started
residing there. The informant used to go to her
daughter's house and sometime in May 1998 when she
went to meet her daughter she was informed by the
landlord that the tenants had vacated the house on 27/
28.4.1998 and had left for Ludhiana. The further case of
the prosecution is that when the accused had taken
Kuljit Kaur with the intention to put an end to her life
spark.
After the criminal law was set in motion the concerned
investigating officer recorded the statement of witnesses.
It is apt to note here that on the basis of an order passed
in a writ petition the investigation was entrusted to the
60 I Lawteller I February 2015
The appellants be reinstated in service within two
months from today and in view of the fact that their
appointments were not in accordance with the Rules,
they shall not be paid back wages. If the appellants had
not been paid their salary for the period prior to
termination of their services, it would be open to the
appellants to take appropriate action for recovery of
salary for the said period.
TTTTTTT
Reference : Supreme Court. Ram Bahadur Pandey &
Anr. v. The State of Uttrakhand & Ors., civil appeal no.
9130 of 2014 (from the Judgement and Order dated
29.7.2009 of the Division Bench of the High Court of
Uttrakhand at Nainital in SpecialAppeal No. 130 of 2009).
—————
crime branch, Punjab Police and the said investigating
agency on completion of the investigation placed the
charge-sheet before the learned Chief Judicial
Magistrate, Kapurthala for the offence punishable under
Section 364 IPC and the said court in turn committed the
case to the court of Session vide order dated 25.8.2000.
The prosecution to substantiate its case examined
Sadhu Singh, PW1, Harjit Singh, PW2, Gurmit Singh,
PW3, Sadhu Singh son of Baai Singh, PW4, Grandthi,
PW5, the Inspector, Swaran Kaur, the informant, and
Sukhdev Singh, PW7, ASI of Police. After the evidence
of the prosecution was closed statement of the accused
was recorded whose plea in defence was that Kuljit Kaur
was wife married to one Labh Singh and she was
involved in a case under Section 302 IPC and was in
custody. To substantiate the plea, the defence examined
four witnesses and brought Exhibit DA and DB on record.
The learned trial Judge accepted the testimony of the
mother and the other witnesses and further placing
reliance on the video recording of the marriage came to
hold that the appellant and the Kuljit Kaur were husband
and wife, hence the plea that Labh Singh was the
husband of Kuljit Kaur was not acceptable; and that
Kuljit Kaur and the accused appellant were last seen
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together and, therefore, it was obligatory on the part of
the accused to explain about her disappearance. On the
aforesaid base, the learned trial Judge found the
appellant guilty of the offence punishable under Section
364 IPC and sentenced him to undergo rigorous
imprisonment for 10 years and a fine of Rs. 5,000/-. On
an appeal being preferred the High Court declined to
interfere with the judgement of conviction and order of
sentence.
Against the judgement of the High Court special leave
petition was filed. The Supreme court accepted the
appeal, the judgement of conviction and order of
sentence were set aside.
The operative part of the judgement read as under :
Swaran Kaur, had admitted in no uncertain terms that
Kujit Kaur had remained in Central Jail Amritsar and
she was not aware of the year when she remained in
jail. The factum for her being in jail also gets support
from the documents exhibits DA and DB. That apart, it
is interesting to note that none of the witnesses have
NO EVIDENCE TO SHOW THAT ACCUSED HAD
BEATEN WITH THE INTENTION TO CAUSE DEATH;
CONVICTION ALTERED U/S. 304II
T HE ALLEGATION AS PER THE PROSECUTION
CASE IS THAT KUSHA Laxman Waghmare (the
appellant) killed his wife Anusuya by means of wooden
bar, hitting her very severely on the chest and at the
back. Because of severe beating, there was internal
bleeding and as a result thereof, she died. A First
Information Report (FIR) was lodged and after usual
investigation, police submitted the charge-sheet against
the appellant under Section 302 of the Indian Penal Code
(IPC).
PW-1 Devram Satu Waghmare who was police Patil of
village Pilosari, deposed that in his absence the appellant
visited his house and made a voluntary confession to
his wife PW-2 Sunita that he had killed his wife. On
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GENERAL
stated anything about the abduction. All the witnesses
have deposed about the factum of marriage as if that
was the singular fact needed to be established to bring
home the charge. In addition, we find that the learned
trial Judge had also put all the questions to the
accused-appellant pertaining to the marriage and visit
of residence and office of the appellant by the mother.
TTTTTTT
When the requisite questions have not been put to the
accused it has caused immense prejudice to him, more
so, when there is no evidence to establish his complicity
in the alleged abduction. Appeal is allowed.
TTTTTTT
Authorities relied upon : 2009 (6) SCC 595, AIR 1953
SC 468, AIR 1951 SC 441.
Reference : Supreme Court. Sukhjit Singh v. State of
Punjab, criminal appeal no. 263 of 2013 (from the
Judgement and Order dated 27.2.2012 passed by the
High Court of Punjab and Haryana at Chandigarh in
Criminal Appeal No. 978-SB of 2003).
—————
getting the information, PW-1 immediately reached the
spot of incident and there he found the appellant sitting
beside the dead body of his wife. The appellant also
narrated the story to PW-1 and confessed that he had
killed his wife. PW-1 then telephoned the police station
from where the inspector of police arrived and arrested
the accused.
The prosecution examined PW-2 Sunita, who is wife of
PW-1. She deposed that the accused-appellant came to
her house and confessed that he killed his wife by
assaulting her with wooden stick. The appellant further
said that he came to the house of PW-2 just to disclose
this to her husband. PW-2 had told her husband PW-1
that the appellant came to the house.
February 2015 I Lawteller I 61
SERVICE
Dr. Parshuram Kotekar was examined as PW-4, who
conducted post mortem over dead body of the accused.
According to him, the death was caused due to
intrathoracic haemorrhage due to fracture of right and
left ribs with intra-cranial haemorrhage.
The trial court on the basis of evidence found that the
accused had not at all offered any explanation in his
examination under Section 313 of the Code of Criminal
Procedure. The Sessions Court, therefore, came to the
conclusion that it was the appellant who murdered his
wife and accordingly convicted him under Section 302
IPC.
The High Court after re-appreciation of evidence and
relying upon the extra-judicial confession made by the
appellant, upheld the conviction and sentence passed
by the trial court.
Against the judgement of the High Court special leave
petition was filed. The Supreme Court partially allowed
the appeal, the conviction of the appellant under
Section 302 IPC was altered to Section 304 Part-II IPC
and he was sentenced to undergo rigorous imprisonment
for ten years.
The operative part of the judgement read as under :
There is no eye-witness to the occurrence. But the
ABSENCE OF SANCTION U/S. 197 FOR PROSECUTING
PUBLIC SERVANT, VITIATES THE PROCEEDINGS
T HE COMPLAINT HAS BEEN FILED UNDER
SECTIONS 120-B, 468, 420 and 500 of the Indian
Penal Code. The learned Judicial Magistrate took
cognizance of the said complaint and summoned the
appellants. The appellants (who were arrayed as
accused Nos. 3, 4, 5 and 6) challenged the said
summoning orders and sought quashment of the
complaint by filing petition under Section 482 CrPC.
Inasmuch as according to them the allegations in the
complaint did not make out any offence under the
aforesaid provisions of the IPC; the complainant had
neither any locus standi nor any legal status to prefer
any such complaint; the appellants being public
62 I Lawteller I February 2015
accused-appellant made extra-judicial confession before
PW-1 and PW-2. No explanation was offered by the
accused under Section 313 of the Code of Criminal
Procedure. The post mortem report fully corroborates
the injuries caused to the deceased by the appellant
with wooden stick. All the three witnesses viz. PW-1, PW-
5 and PW-6, have proved the prosecution case.
TTTTTTT
It is not a fit case where conviction could be sustained
under Section 302 IPC. The weapon used by the
appellant is a wooden stick and as per the prosecution
case, the deceased was severely beaten by the said stick.
As a result thereof, she died. There is no cogent evidence
to show that the appellant had beaten the deceased with
an intention to cause her death. In such circumstances,
the conviction of the appellant under Section 304 Part-
II IPC will be just and proper.
TTTTTTT
Reference : Supreme Court. Kusha Laxman Waghmare
v. State of Maharashtra, criminal appeal no. 1414 of 2008
(from the Judgement and Order dated 9.1.2004 of the
High Court of Judicature at Bombay in Criminal Appeal
No. 385/1995).
—————
servants and Gazetted officers of the State Government
of Chhattisgarh, no such criminal proceedings could be
initiated against them without prior sanction from the
appointing authority as per section 197 of the Cr .P.C.;
and the complaint was blatant misuse and abuse of the
process of Court which was filed by the complainant
after exhausting the civil remedies in which he had
failed. The High Court, after examination of the matter,
has not found any merit in any of the aforesaid
contentions raised by the appellants and,
consequently, dismissed their petitions.
Against the judgement of the High Court special leave
petition was filed. The Supreme Court accepted the
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 SERVICE
appeals, order of the High Court was set aside. criminal complaint is filed with the allegation that
Consequently, cognizance taken by the learned accused No. 1 is favoured by creating a false certificate
Magistrate and orders summoning the appellants as dated 28.12.2004.
accused was set aside resulting into the dismissal of TTTTTTT
the said complaint. When suit is dismissed under Order IX Rule 8 CPC, fresh
The operative part of the judgement read as under : suit under Order IX Rule 9 is barred. The legal
implication would be of that the attempt of the
The sanction, is necessary if the offence alleged against
respondent in challenging the decision of the Tender
public servant is committed by him "while acting or
Committee in not considering his tender remained
purporting to act in the discharge of his official duties".
unfaulted. Even when the respondent himself invited
In order to find out as to whether the alleged offence is
order of dismissal in the civil suit, curiously enough,
committed while acting or purporting to act in the
he filed a writ petition against the order passed in the
discharge of his official duty, yardstick is provided by
civil court dismissing his suit for non-prosecution, but
this Court in Dr. Budhikota Subbarao.
the same was also dismissed by the High Court on
TTTTTTT
25.6.2007 and even a cost of Rs. 25,000/- was imposed
While discharging his official duties, if a public servant
on the respondent as the said writ petition was
enters into a criminal conspiracy or indulges in
perceived by the High Court as 'abuse of process of the
criminal misconduct, such misdemeanor on his part is
court'. SLP preferred by the respondent was also
not to be treated as an act in discharge of his official
dismissed by this Court on 14.9.2007. It is only
duties and, therefore, provisions of Section 197 of the
thereafter the respondent filed the criminal complaint
Code will not be attracted. In fact, the High Court has
out of which present proceedings emanate. The action
dismissed the petitions filed by the appellant precisely
of the respondent in filing the criminal complaint is not
with these observations namely the allegations pertain
bona fide and amounts to misuse and abuse of the
to fabricating the false records which cannot be treated
process of law.
as part of the appellants normal official duties.
TTTTTTT
TTTTTTT
Attempt is made by the respondent to convert a case with
A little deeper scrutiny into the circumstances under
civil nature into criminal prosecution. In a case like this,
which the complaint came to be filed would demonstrate
High Court would have been justified in quashing the
that allegation of fabricating the false record is clearly
proceedings in exercise of its inherent powers under
an afterthought and it becomes more than apparent that
Section 482 of the Code.
the respondent has chosen to level such a make belief
TTTTTTT
allegation with sole motive to give a shape of criminality
Consequently, cognizance taken by the learned
to the entire dispute, which was otherwise civil in
Magistrate and orders summoning the appellants as
nature. As noted above, the respondent had in fact
accused is hereby set aside resulting into the dismissal
initiated civil action in the form of suit for injunction
of the said complaint.
against the award of the contract in which he failed.
TTTTTTT
Order of civil court was challenged by filing writ
Authorities relied upon : SLP (Cri.) No. 5453 of 2007,
petition in the High Court. Plea of the respondent was
1993 (2) SCC 567.
that the action of the Department in rejecting his tender
Reference : Supreme Court. Rajib Ranjan & Ors. v. R.
and awarding the contract to accused No. 1 was illegal
Vijaykumar, criminal appeal nos. 729-732 of 2010.
and motivated. Writ petition was also dismissed with
cost. These orders attained finality, it is only thereafter —————

www.lawteller.com February 2015 I Lawteller I 63

 GLOBAL GLIMPSE
US SUPREME COURT RULES ON COLLECTIVE BARGAININGAGREEMENTS
The US Supreme Court ruled in M&G Polymers USA, LLC v. Tackett on collective bargaining agreements for
retirement healthcare benefits. The case was brought by retired employees of an M&G Polymers-owned plant, who
sued the company when it was announced that retirees would be expected to contribute financially to their medical
benefits. The retirees sued under the Labor Management RelationsAct and the Employee Retirement Income Security
Act of 1974 (ERISA), arguing that the language of the collective bargaining agreement (CBA) ensured them lifelong
health care benefits, without requiring their financial contribution. The interpretation of such an issue was split
among courts. The US Court of Appeals for the Third Circuit has required a clear statement of the parties' intent
that healthcare benefits survive a CBA's termination. Both the US Court of Appeals for the Second Circuit and the
Seventh Circuit have ruled that the agreement should contain language to reasonably support the interpretation
that benefits are intended to continue indefinitely . Meanwhile, the US Court of Appeals for the Sixth Circuit held
that retiree healthcare benefits are presumed to vest indefinitely unless the duration of benefits is specifically stated.
The court held that the Sixth Circuit's interpretation of the issue was "incompatible with ordinary principles of
contract law." The district court originally dismissed the retirees' claim, a decision that was later reversed and remanded
by the Sixth Circuit. The district court ruled in favor of the retirees but ordered that the retirees contribute to their
health care benefits per the revised agreement. The decision was appealed, and subsequently affirmed by the Sixth
Circuit. The Supreme Court heard oral arguments on this case in November.
EGYPT COURT CONVICTS DOCTOR OF MANSLAUGHTER IN FEMALE GENITAL
MUTILATION CASE
An Egyptian appeals Court convicted a doctor of manslaughter in a female genital mutilation (FGM) that resulted
in the death of a 13-year-old girl in 2013. The doctor, Raslan Fadl, who was originally cleared of charges at the trial
level, was fined and sentenced to two years of hard labor for manslaughter with an additional three months added
for FGM. The victim, Suhair al-Bataa, was brought to Fadl by her father in order to undergo the illegal procedure.
The father of the victim also faced trial and was given a suspended sentence. He had also been acquitted by the
trial court. The case against Fadl was the first in the country to be brought to trial. The practice has been banned
in Egypt since 2008, but, according to the BBC, the country has one of the highest prevalence rates in the world.
FGM is a widespread practice, despite the international community's consistent call to end the practice. The UN
has consistently campaigned for an end to FGM, labeling the practice, among other things, gender-based
discrimination, torture, an affront to human dignity and an irreparable, irreversible abuse of the human rights of
women and girls. In July UK Prime Minister David Cameron announced plans to enact new laws that will protect
girls from the practice. In July 2013, noting the continued pervasiveness of FGM, UNICEF reported a world-wide
decline in the practice due to multiple campaigns intended to educate parents on the emotional and physical health
risks associated with the procedure and its aftermath.
ZAMBIA ELECTS NEW PRESIDENT
Zambia's new president, Defense and Justice Minister Edgar Lungu, was sworn after he was declared the winner of
the presidential poll. Lungu was a candidate for the Patriotic Front, the ruling party in Zambia. The elections were
called after the the death of President Michael Sata in October 2014. Lungu will complete Sata's term until the 2016
presidential elections, and said he plans to finish economic development projects begun by Sata. Lungu obtained
48.3 percent of the vote, while his closest opponent, Hakainde Hichilema, received 46.7 percent. Former Zambian

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 GLOBAL GLIMPSE
presidents have been surrounded by controversy in recent years. In 2013 Zambian authorities arrested former
president Rupiah Banda on allegations that he misappropriated over USD $11 million during his three-year tenure
in office. Zambia's Supreme Court in 2010 acquitted Regina Chiluba, the wife of former Zambian president Frederick
Chiluba, of charges that she accepted stolen property during the years of her husband's administration. Prior to his
wife's acquittal, former president Chiluba was acquitted in 2009 of charges of stealing money from the country's
treasury while in office from 1991-2001.
FEDERAL JUDGE RULESALABAMA MARRIAGE LAWS UNCONSTITUTIONAL
The United States District Court for the Southern District of Alabama struck down the Alabama Sanctity of Marriage
Amendment and the Alabama Marriage Protection Act, ruling them unconstitutional. Applying strict scrutiny, Judge
Callie V.S. Granade found the marriage laws violated the Due Process Clause and Equal Protection Clause of the
Fourteenth Amendment of the US Constitution. The state argued that Alabama has an interest in "protecting the
ties between children and their biological parents," but failed to prove why the marriage laws would meet that
objective. The plaintiffs in this case were a same-sex couple who were legally married in California. One of the
plaintiffs sought to adopt her partner's child under an Alabama adoption code allowing someone to adopt their
spouse's child, but the petition was denied based on the state's marriage laws.
FRANCE COURT CONVICTS 3 PEOPLE FORANTI-GAY TWITTER POSTS
A criminal court in Paris convicted three people of hate crimes for tweeting homophobic messages on the social
media site Twitter. The offenders received fines between 300 and 500 euros for inciting anti-gay sentiments by
creating hashtags with messages such as "let's burn the gays" and "the gays must die". This is the first time a
French court has convicted a Twitter user for discriminatory speech based on sexual orientation, and a representative
of the Committee IDAHO France, an organization committed to combating homophobia, is calling the case a "historic
victory". Twitter has yet to comment on the case, but has shown support for the French initiative to end hate
speech by removing hashtags with homophobic key words from the trending page and by providing user information
to French officials. The right of the French government to censor discriminatory speech on the internet has been
widely debated. Last year a French court ordered Twitter to allow for the identification of authors responsible for
anti-Semitic messages, as well as to establish a mechanism to alert authorities of illegal hate messages. The French
Justice Ministry has called on prosecutors to crack down on hate speech, anti-Semitism and support of terrorism
under the country's strong laws against anti-Semitism and racism.
UK COURT UPHOLDS REGULATION ON LEGALAID FOR DOMESTIC VIOLENCE
The UK High Court of Justice rejected a claim that procedural regulations, known as CLA(P) Regulation 33, unlawfully
restrict domestic violence victims' access to legal aid. Under the regulations, domestic violence victims seeking to
obtain legal aid must first provide specific types of evidence. The claimants argued these regulations thwarted
previous legislation, which removed legal aid funding with the exception of categories of cases which included
domestic violence. They further claimed that it would be highly unlikely for the victims to obtain this evidence for
legal proceedings and that it does not protect those who have not yet suffered domestic violence but are at high
risk. The court had ruled that because the purposes of the original legislation were to limit civil legal aid expenditure
and to promote means of dispute resolution outside of court, CLA(P) Regulation 33 did not frustrate these purposes
and was consistent with the pre-existing law. Lawyers and legal organizations in the UK have responded critically
to the cuts to legal aid in the UK. In March the High Court rejected a lawsuit by the Howard League for Penal

www.lawteller.com February 2015 I Lawteller I 65

GLOBAL GLIMPSE
Reform and the Prisoners' Advice Service challenging planned government cuts to legal aid for prisoners. In January
2014 thousands of criminal trial lawyers in the UK staged a half-day strike to protest planned government cuts to
legal aid that would reduce their pay by up to 30 percent. In 2013 the UK Criminal Cases Review Commission, an
independent public body that investigates miscarriages of justice, warned that the government's proposed changes
to legal aid could increase the likelihood of convictions of vulnerable or mentally ill suspects. Earlier that year the
Law Society described the proposals as "unworkable" and likely to cause "catastrophic" damage to the UK's legal
aid system.
MACEDONIA PARLIAMENT DEFINES MARRIAGE AS BETWEEN A MAN AND A
WOMAN
The Parliament of the Former Yugoslav Republic of Macedonia voted to ban same-sex marriage by defining marriage
as between a man and a woman. The law defines marriage as "a life union solely of one woman and one man" and
further states that any changes to this new definition will require a two-thirds majority vote in the future. The
amendment still needs presidential approval but did receive a 72-4 majority vote in parliament. An earlier draft of
the law expressly denied same-sex civil unions but was criticized by other international groups.
FEDERAL JUDGE DISMISSES LAWSUIT AGAINST INDIAPM OVER 2002 RIOTS
A judge for the US District Court for the Southern District of New York dismissed a lawsuit against Indian Prime
Minister Narendra Modi, agreeing with the US State Department that he is entitled to immunity from lawsuits in US
courts. The lawsuit, filed by the American Justice Center (AJC), claimed that Mr. Modi failed to stop a 2002 riot that
claimed the lives of 1,000 Muslims in the state of Gujarat after the burning of a train carrying 58 Hindu pilgrims. The
ruling came down just before US President Barack Obama was set to attend India's Republic Day Celebration on
January 26.
AUTHORITIES IN CAPITAL OF CHINA'S XINJIANG PROVINCE BAN BURQAS
Authorities in Urumqi, capital of the far-west Chinese province of Xinjiang, issued a new law banning the wearing
of burqas in public. Xinjiang, home to China's minority ethnically Turkic Muslim Uighurs, has been the site of
significant ethnic unrest including recent attacks by Uighur separatists labeled "religious extremists" by Chinese
officials. This burqa ban is the most recent ordinance enacted by Chinese authorities effectively targeting the Uighur
population; earlier this year provincial authorities of Xinjiang banned students and civil servants from fasting during
Ramadan. The influx of Han Chinese, China's largest ethnic group, to resource-rich Xinjiang province has led to
increased ethnic tension and unrest in the region. The People's Court of Kashgar in the region of Xinjiang sentenced
22 people to prison terms for illegal religious activities and other crimes.

QUOTE from COURT

Law is but a heathen word for power.

—DANIEL DEFOE

66 I Lawteller I February 2015 www.lawteller.com

 LEGAL UPDATES
CENTRE, HARYANA GET NOTICE FOR
ATTACK ON JOURNALISTS
The Supreme Court has issued notice to the Centre and
the Haryana government on a petition by a group of
journalists seeking a judicial investigation into the
alleged assault on press persons during the recent
police operation to arrest the self-styled godman
Rampal at Barwala in Hisar district. The Bench sought
their replies on the petition, which also sought
punishment for "erring police officers" for resorting to
a "lathi charge without caution and care". The petition
alleged that there was an increasing tendency among
government authorities to "muzzle the press," and
sought "appropriate compensation" for the affected
journalists and framing of guidelines to ensure the "free
and fair functioning of the media." The petition said
the journalists were seeking justice for "violation of
their fundamental right guaranteed under Article 19(I)(a)
of the Constitution and freedom of the press, which
means absence of interference by the State with the
media, except in so far as it is authorized by the
constitution and by enactments which are
constitutionally valid."
PROSECUTE BLACK MONEY
HOLDERS BY MARCH 31: SC
The Supreme Court has directed the Centre to complete
prosecution of black money holders abroad under the
Income Tax Act by March 31, 2015. The Bench gave
this direction to the Centre after senior counsel Anil
Divan, appearing for petitioner Ram Jethmalani, said the
defaulters and evaders whose names had been
disclosed to the SIT would be off the hook if the
income tax proceedings were not completed by then.
Attorney General Mukul Rohatgi said the Income Tax
Act had been amended to extend the period of
limitation for launching prosecution. He said if
prosecution could not be completed by the deadline,
the law would be suitably amended or appropriate
orders passed. He said some people had accepted that
they had accounts in foreign banks and paid tax.
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Proceedings against others were pending. During the
last hearing, the Centre submitted to the court in a sealed
cover a list of 627 Indians holding black money in
accounts abroad, along with a status report regarding
the investigation.
SPECIAL SC BENCH TO HEAR,
MONITOR SOCIAL ISSUES
The Supreme Court set up a special bench, called the
Social Justice Bench, comprising two judges devoted
to the delivery of speedy justice in a range of social
issues related to the downtrodden and socially
marginalized groups. A brainchild of Chief Justice of
India H.L. Dattu, the Social Justice Bench will be headed
by Justice Madan B. Lokur and also have Justice U.U.
Lalit. Supreme Court Secretary-General V.S.R. Avadhani
explained that the purpose behind constituting the new
Bench was to streamline cases highlighting social
issues before one court and thus facilitate the Supreme
Court's monitoring and review of the government's
action in such cases. "In the Supreme Court, several
cases relating to the domain of social justice have been
pending for years. The Chief Justice of India is of the
view that these cases shall be given a specialized
approach for their early disposal so that masses will
realize the fruits of the rights provided to them by the
Constitutional text," a statement issued by the apex
court said. The special Bench will handle issues related
to the release of food grains lying in stock for use in
drought-affected areas, framing of fresh scheme for
their public distribution, taking of steps to prevent the
untimely death of women and children for want of
nutritious food, hygienic mid-day meals in schools,
clean drinking water, provision of "safety and secured
living conditions for women forced into prostitution."
SC PLEA TO GOVT. ON SEX
DETERMINATION ADS
The Supreme Court has sought the government's help
after a UPA affidavit filed in 2010 suit that blocking
websites featuring pre-natal sex determination
advertisements "may not be desirable" as they "provide
February 2015 I Lawteller I 67
LEGAL UPDATES
good content for medical education". This affidavit, the
Bench found, is the last word the Supreme Court has
heard on the government's efforts to combat the
continued online presence of such advertisements and
websites. Pre-natal sex determination was made an
offence two decades ago under the Pre-Conception and
Pre-Natal Diagnostic Techniques (Prohibition of Sex
Selection) Act, 1994. The affidavit accepts that pre-natal
sex determination is a crime in India. But it reasons that
these advertisements are not just meant for Indian
citizens but a global audience, some of whom belong
to countries where such sex determination is not an
offence. "Also, most of these websites are hosted
outside the country. Blocking such sites advertising
pre-natal sex determination may not be feasible due to
their hosting outside the county," said the af fidavit
filed by the Cyber Laws Formulation and Enforcement
Division of the Department of Information Technology.
Alarmed by the tone of "helplessness" in the four year
old affidavit, the Bench asked for assistance from the
current NDA government, saying an effort should be
made to provide a legal solution that nothing contrary
to the laws of this country is advertised or shown on
websites. The hearing was based on a petition by Dr.
Sabu Mathew George in 2008, highlighting the use of
Internet and popular search engines to promote sex-
determination technologies in violation of the 1994 Act.
PLEA FOR LAW TO MAKE SCHOOLS
LIABLE IN SEXUALABUSE CASES
The Supreme Court has sought a response from the
Centre and the State governments on the plea for a law
to make schools liable for sexual abuse of students on
their premises. "It is a valid cause," Chief Justice of
India H.L. Dattu remarked. A Bench led by the Chief
Justice issued notices to the Union Ministries of Home
Affairs and Human Resources Development and also
to all the States. It was acting on a petition filed by
Supreme Court advocate Vineet Dhanda. The petition
wanted the apex court to direct the government to frame
laws, guidelines and policies "fixing the liability of
educational institutions on whose premises incidents
68 I Lawteller I February 2015
of sexual abuse takes place." "The more disturbing
part, besides theory crime of child sexual abuse, is that
educational institutions have no liabilities whatsoever
fixed by law in case of such offences on their premises.
Even the police administration goes out of the way to
protect such educational institutions for their own
vested interests," the petition said. It said the liability
of the schools should be spelt out in case of physical
and mental abuse suffered by students on the
institutions' premises. The petition said laws should be
framed to ensure that government machinery, including
the police, act to ensure the "proper safety of school
children". "To protect the precious lives of children from
being scarred as a result of such dastardly acts is the
prime duty of schools as well as that of the government.
In the present scenario, schools, government as well
as the public administration is not doing their duty
properly as a result of which sexual crimes against
children in schools and other educational institutions
have seen a steep rise," it said.
SC MULLS P ANEL TO PROBE
CONFLICT OF INTEREST IN BCCI
The Supreme Court has considered the setting up of a
disciplinary committee with persons of its choice to
look into the prima facie findings of the Justice Mukul
Mudgal Committee report on IPL betting scandal, fix
liability and identify conflict of interest zones and
procedure in the cricket format. Mr. Aryama Sundaram,
appearing for the Board argued that the court's
committee would infringe on its autonomy. He said a
panel set up by the court could go so far as suggest
recommendations to the BCCI working committees for
its consideration and no further . "This supposed
conflict of interest arises in a clause in a private contract
between an IPL team and the BCCI. How can the details
of a private contract be challenged in a PIL? Once this
happens any third party can come and challenge our
private contracts with the teams," Mr . Sundaram
argued. The Bench dismissed the BCCI's apprehensions
about the disciplinary committee as "premature". "They
don't want to grab power from you. The disciplinary
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committee will act as an authority within the framework
of your own rules and bye-laws. It will look into conflict
of interest zones and the road ahead. Only difference
would be that the committee will have our nominees,"
Justice Thakur said. Mr. Sundaram responded that the
court could check and intervene when there is a
specific case of misuse of the people's confidence, but
not suggest sweeping changes in its private bye-laws.
"So you want us to catch the thief, but not plug the
scope of future thefts," the Bench countered.
SC FOR DAY-TO-DAY HEARING
By requesting the Chief Justice of the Karnataka High
Court to form a Special Bench to hear arguments
"exclusively" for two whole months on the four criminal
appeal in the Rs. 53-crore disproportionate assets case
against former Tamil Nadu Chief Minister Jayalalithaa
and three others, the Supreme Court went the extra mile
to ensure that the appeal proceedings were not
prolonged. A Bench headed by Chief Justice of India
H.L. Dattu ordered day-to-day hearing and completion
of the appeal proceedings in the High Court, while
making a mention that a Special Bench was required
"keeping in view the peculiar circumstances" of the
case. The Bench, however, did not elaborate on the
matter. Under the new law of corruption, Ms.
Jayalalithaa can contest the Tamil Nadu Assembly
election in 2016 only if she is exonerated of corruption
charges by a higher court. Even the imposition of fine
under the Prevention of Corruption Act makes her
ineligible to contest. Under the present circumstances,
the possibility of an early and complete acquittal by a
higher court works in her favour. The Special Bench,
which has to be set up immediately, would not devote
two months to hear these appeals. The Supreme Court
has left it to the Chief Justice of the High Court to
decide whether there should be two judges of a single
judge on this Bench. The order came on a petition by
Ms. Jayalalithaa challenging the Karnataka High Court
order refusing to suspend the execution of her sentence
and grant of bail in the assets case. It was Ms.
Jayalalithaa's assumption that the High Court would
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LEGAL UPDATES
take at least four years to decide her appeal during
which she would have to be in prison. The trial in the
case, on the other hand, had taken 18 years to complete.
Plus, the Supreme Court has calculated that the
judge(s) would require a month's time to write the
judgement on the criminal appeals considering the 173
volumes of records in the case. The plea for a day-to-
day hearing of the appeals in the High Court came from
the lawyer of the accused, K.T.S. Tulsi.
MAKE IN-HOUSE INVESTIGATION
PROCEDURE PUBLIC: SC
In a significant move to usher in transparency in the
higher judiciary, the Supreme Court, in the judgement
directed its Registry to make public the "in-house
procedure" followed for investigation of complaints,
including sexual harassment at workplace, against
judges and Chief Justice of High Courts. The direction
came in a judgement pronounced on a petition filed by
a former additional district and sessions judge of
Madhya Pradesh, seeking a fair investigation into her
complaint of sexual harassment she allegedly faced from
a sitting Madhya Pradesh High Court judge. The in-
house procedure, crystalised in a 1995 Supreme Court
judgement in the C. Ravichandran Iyer case, details the
various stages of investigation into complaints against
sitting High Court Judges. Under the procedure, the
Chief Justice of the High Court concerned has only a
"limited authority" to give an opinion on "whether or
not a deeper probe is required." Reading out the
relevant portions of the judgement in open court, the
Bench observed that putting the in-house procedure
of enquiry in the public domain would be in the interest
of safeguarding judicial integrity . "In view of the
importance of the in-house procedure, it is essential to
bring it into public domain. The Registry of the Supreme
Court of India is accordingly directed, to place the same
on the official website of the Supreme Court of India,"
the judgement ordered. Dealing with the present case,
the judgement said it did not want to reveal the identity
of the alleged victim or the High Court judge. The
judgement refers to them as 'X' and 'Justice A'. One of
February 2015 I Lawteller I 69
LEGAL UPDATES
the allegations of the victim is that she was harassed
to dance to an "item song" and had to suffer sexually
suggestive behaviour from the High Court judge. The
judge, a party in the Supreme Court petition, denied all
the allegations. The judgement passed strong
observations against the way the Chief Justice of the
Madhya Pradesh High Court dealt with the complaint.
The judgement concludes that the Madhya Pradesh
Chief Justice "travelled beyond the determinative
authority vested in him" by constituting a "two-judge
committee" to commence an in-depth probe. This power
is actually vested with the Chief Justice of India. The
Supreme Court further ordered the Madhya Pradesh
Chief Justice to disassociate from a fresh investigation.
It also directed the High Court Judge to be divested of
"his administrative and supervisory authority and
control over witnesses" who are largely court staffers.
GOVT. ENDORSES SC GUIDELINES
ON PASSIVE EUTHANASIA
Three years after a Supreme Court judgement legalized
passive euthanasia under "exceptional circumstances,"
the government has fully endorsed the apex court's
guidelines giving High Court the power to decide on
applications seeking permission to withdraw life
support in the best interest of the patient. On March
7, 2011, a Bench set out a series of guidelines for High
Courts to process applications seeking passive
euthanasia by "near relatives or next friend or the
doctors/hospital staff." The Bench then observed that
these guidelines would hold good until Parliament
decides or passes a law on passive euthanasia. The
court was deciding the case of Aruna Shaunbag, who
was paralysed and slipped into a coma after a brutal
attack on November 27, 1973 at Mumbai's King Edward
Memorial Hospital by a staffer. In his written reply in
Rajya Sabha Health Minister J.P . Nadda said the
guidelines of the Supreme Court should be treated as
law and made binding. Mr. Nadda said the matter of
mercy killing was examined with the Law Ministry.
There was no proposal to enact a legislation in this
regard at present, he said. The Bench defined passive
70 I Lawteller I February 2015
euthanasia as a process when medical treatment is
withheld or withdrawn leading to the death of a
terminally ill person.
PAY Rs. 60 LAKH T O TRIPLE
AMPUTEE: SC
The Supreme Court has confirmed payment of Rs. 60
lakh as compensation to a triple amputee, who was
electrocuted when he came into contact with a live wire
hanging loosely on the roof of his house in Panipat,
Haryana. While ordering the Uttar Haryana Bijli Vitran
Nigam Ltd. to pay the amount, the SC noted that he
had lost his childhood and a normal life due to the
negligence of the authorities. Raman, who was four at
the time of the incident was certified with 100 percent
permanent disability after doctors at the Safdarjung
Hospital here were forced to amputate both his arms
and left leg to save his life. Last year , in the Punjab
and Haryana High Court, Raman's family had narrated
how the victim's father and neighbours had
approached local authorities at Chhajpur in Panipat in
August 2011, requesting them to remove the iron angle
from which the wire was dangling. They had warned
that the wire was endangering the lives of about 60
families in the residential area. But there was no
response, and young Raman fell victim to the
negligence in November 2011. In court, the Nigam
argued that none of its employees had fixed the iron
angle and refused monetary compensation. In 2013, a
Single Bench of the High Court decided the case in the
boy's favour and ordered the Nigam to pay Rs. 60 lakh,
half of which was to be deposited in an account and
given to the boy when he reached the age of 21. The
balance Rs. 30 lakh was also to be deposited to fetch a
monthly interest of Rs. 20,000 to meet Raman's medical
and other expenses. The Division Bench of the High
Court, however, lowered the compensation amount by
half in an appeal filed by Nigam. The victim's family then
approached the Supreme Court. Confirming the single
judge's verdict, the Bench empathized with how Raman
"has to face difficulties in all walks of life, which is
worse than death." "His childhood is lost, the marital
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status and happiness is lost, which cannot be
compensated in terms of money. He has to undergo
great ordeal and agony throughout his life," the
Supreme Court observed. It also set aside the condition
of the High Court that the Rs. 30 lakh due to Raman at
the age of 21, would revert to the Nigam in case he did
not survive till that age. Justice Gowda clarified that in
case Raman does not reach 21, the compensation
amount would go to his legal heirs, and in this case,
his parents.
15 STATES RATIFY NATIONAL
JUDICIAL APPOINTMENTS
COMMISSION BILL
The National Judicial Appointments Commission
(NJAC) may soon become active with Union Law
Minister D.V. Sadananda Gowda saying that 15 States
had ratified the Constitution (21st Amendment) Bill,
2014, giving Constitutional status to the Commission.
"I have received information that 15 States have ratified
the Bill. Now the Rajya Sabha has to receive
authenticated letters from the States, after which the
Bill will be sent to the President for assent," Mr. Gowda
said. The NJAC Bill, passed by Parliament in August,
had to be ratified by at least half the State legislatures
before it got the Constitutional status. The NJAC, once
it came into existence, is expected to usher in
transparency in judicial appointments in the highest
courts and end the highest judiciary's two-decade-old
grip over appointments of judges through the collegium
system. It further would restore an equal role for the
executive in higher judicial appointments. Mr. Gowda
said he could not be able to give a time frame within
which the commission would start work, but said there
were judicial vacancies in the Supreme Court and the
High Courts. Law Minister statistics show there are 349
vacancies of judges in 24 High Courts and three in the
Supreme Court as on November 10, 2014. The number
of pending cases as on December 31, 2013, in the 24
High Courts is 4,462,705. In the Supreme Court, 45,108
cases have been disposed of, while 65,970 are pending
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LEGAL UPDATES
as on June 30, 2014. Once the commission is in place,
the government has to within 30 days, intimate the
vacancies of judges to the Supreme Court and the High
Courts. Vacancies to come up within the next six months
should also be intimated to the commission in advance.
The NJAC has the Chief Justice of India (CJI) as
chairperson and two senior-most judges of the Supreme
Court as members, apart from the Union Law Minister
and two eminent personalities, of which one of them
would be nominated from among the Scheduled Castes,
the Scheduled Tribes, minorities, Other Backward
Classes or women. But the NJAC Bill is not without its
critics. Challenges to the 121st Constitutional
Amendment Bill and the NJAC Bill had reached the
Supreme Court in August shortly after Parliament
passed the Bills. Four public interest litigation petitions
had sought the Supreme Court to declare the Bill
unconstitutional as they violated the basic structure of
the Constitution by infringing on judicial
independence. But a Bench led by Justice A.R. Dave
had at that point of time, refused to entertain the
petitions, observing that it was too "premature" for the
court to intervene as the 121st Constitution Amendment
Bill was yet to be ratified by the S tates. However, the
Bench observed that the parties could move the
Supreme Court on the same ground at an appropriate
stage.
SC LIFTS BAN ON HOOKAH IN
SMOKING SPACES
Lifting a three-year-old ban on Hookah smoking, the
Supreme Court has held that a prohibition on
"facilitating" Hookah smoking in strictly smoking
spaces is impermissible in law . The Bench in a
judgement, held that smoking prohibition only extended
to public places and not spaces earmarked for smoking.
Clarifying, Rule 3 of the Prohibition of Smoking in
Public Places Rules 2008, the Bench explained it is
incumbent upon owners of a public place to ensure that
no person smokes there. To this extent, the judgement
by Justice Nariman said, ashtrays, matches, lighters and
February 2015 I Lawteller I 71
LEGAL UPDATES
other things designed to facilitate smoking are not to
be provided in public places. But a bar on Hookah
smoking in smoking areas is outside the purview of the
Cigarettes and other Tobacco Products (Prohibition of
Advertisement and Regulation of Trade and Commerce,
Production, Supply & Distribution) Act, 2003 or the
cigarettes Act.
KRISHNA WATERS: CAN'T CLOSE
OUR DOORS ON TELANGANA: SC
The Supreme Court has observed it could not "close
its doors" on the newly formed Telangana's plea for a
fresh look at the inter-State sharing of Krishna waters,
even as Karnataka one of the beneficiaries, strongly
objected to the reopening of the five-decade-old
dispute. Telengana had filed a fresh petition in the
Supreme Court, contending that its interests were not
represented before the Krishna Water Disputes
Tribunal-II. It sought total re-consideration of the
tribunal's final award in December 2010 as it concerned
only Karnataka, Andhra Pradesh and Maharashtra. It
said Telangana, which came into existence only on June
2 this year, did not get an opportunity to raise its
"independent grievance". In August this year, the
Supreme Court had prima facie recognized Telangana's
status as an "affected" State with a voice of its own.
"we do have a substantive claim," senior advocate C.S.
Vaidyanathan submitted before a Bench, led by Justice
Vikramjit Sen on Monday. Objecting to this, senior
advocate Fali Nariman, representing Karnataka, called
Telengana's claim "extraordinary". He said Telangana
was never heard before the Krishna tribunals was
QUOTE from COURT
The law will never make men free; it is men who have
got to make the law free.
72 I Lawteller I February 2015
factually wrong. Territories, which later became
Telangana after the bifurcation of Andhra Pradesh, was
earlier represented by the undivided State. "The award
of the tribunal, binding on the erstwhile State, is now
binding on the successor State. The Inter-State Water
Disputes Act of 1956 says the award of the tribunal is
final. Now, reopening the tribunal award would require
statutory amendment. You cannot go backwards like 50
years," Mr. Nariman protested, questioning the
maintainability of Telengana's petition. "But we have
to see the interests of Telangana with respect to
Andhra Pradesh, Karnataka, and Maharashtra. We
cannot close our doors on the merits of its (T elangana)
appeal. When we can hear one State, why cannot we
consider another?" Justice Sen queried. The court
issued notice to the Centre, Maharashtra, Karnataka,
and Andhra Pradesh for their detailed responses on the
maintainability of Telangana's petition.
SC EXTENDS STAY ON EXECUTION OF
YAKUB MEMON
The Supreme Court has extended, until further orders,
its stay on the execution of Yakub Abdul Razak Memon,
the lone death row convict in the 1993 Mumbai serial
blasts case. A three-judge Bench issued a notice to the
Maharashtra Special Task Force and the CBI on
Memon's plea seeking review of the death penalty .
President Pranab Mukherjee had in May rejected his
mercy petition. On a petition seeking review of the
judgement, the court had in June stayed the execution.
ooooooo
—HENRY DAVID THOREAU
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OFFENDING VEHICLE A 'LIGHT GOODS VEHICLE'
BUT DRIVER CARRYING LICENSE FOR LMV; HELD
NO BREACH OF INSURANCE POLICY
A CLAIMED PETITION WAS FILED BEFORE THE
MOTOR ACCIDENT Claims Tribunal by the
dependents of the deceased Rizwan s/o Kadir @ Abdul
Kadir who died in a road accident on 8th October, 2005
at about 5.30 A.M. while driving Tempo No. HR-G-5234
which was hit by a Tempo (Tata-407) bearing No. DL-
1L-D3186. The Tribunal held that the death was on
account of negligence of the driver of the offending
Tempo (Tata-407) bearing No. DL-1L-D3186 and the
claimants were entitled to compensation. The vehicle
was insured with the Insurance Company and the driver
had valid driving licence. The offending vehicle was
'light goods vehicle'. The Insurance Company preferred
an appeal before the High Court with the plea that it was
entitled to recovery rights as the driving licence (Exhibit
R3W1) was for driving 'light motor vehicle'. It could not
be equated with 'light goods vehicle'. The High Court
observed:
Driving licence of the driver was for driving a light motor
vehicle. In no manner can it be said that a light motor
vehicle can be equated with a light goods vehicle. In this
scenario, it is clear that there was a breach of the policy
condition and driver of the vehicle did not have a valid
and effective driving licence at the time of the accident.
Recovery rights should have been granted by the
Tribunal against the owner. The award is modified.
Recovery rights are granted in favour of the Insurance
Company.
Aggrieved by the judgement of the High Court, the
appellants-the owners of the vehicle in question filed
special leave petition before the Supreme Court. The
Supreme Court set aside the impugned order of the High
Court and restored that of the Tribunal.
The operative part of the judgement read as under :
The Insurance Company preferred an appeal before the
High Court with the plea that it was entitled to recovery
rights as the driving licence (Exhibit R3W1) was for
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GENERAL
driving 'light motor vehicle'.
TTTTTTT
We find the judgements relied upon cover the issue in
favour of the appellants. In Annapa Irappa Nesaria
(supra), this Court referred to the provisions of Section
2(21) and (23) of the Motor Vehicles act, 1988, which
are definitions of 'light motor vehicle' and 'medium
goods vehicle' respectively and the rules prescribing the
forms for the licence, i.e. Rule 14 and Form No. 4. It was
concluded:
20. From what has been noticed hereinbefore, it
is evident that "transport vehicle"has now been
substituted for "medium goods vehicle"and
"heavy goods vehicle". The light motor vehicle
continued, at the relevant point of time to cover
both l"ight passenger cariage vehicle"and l"ight
goods carriage vehicle".A driver who had a valid
licence to drive a light motor vehicle, therefore,
was authorised to drive a light goods vehicle as
well."
TTTTTTT
In S. Iyyapan (supra), the question was whether the
driver who had a licence to drive 'light motor vehicle'
could drive 'light motor vehicle' used as a commercial
vehicle, without obtaining endorsement to drive a
commercial vehicle. It was held that in such a case, the
Insurance Company could not disown its liability. It was
observed:
18. in the instant case, admittedly the driver was
holding a valid driving licence to drive light
motor vehicle. There is no dispute that the motor
vehicle in question, by which accident took place,
was Mahindra Maxi Cab. Merely because the
driver did not get any endorsement in the driving
licence to driver Mahindra Maxi Cab, which is a
light motor vehicle, the High Court has committed
grave error of law in holding that the insurer is
February 2015 I Lawteller I 73
BUSINESS
not liable to pay compensation because the driver
was not holding the licence to drive the
commercial vehicle. The impugned judgement
(Civil Misc. Appeal No. 1016 of 2002, order dated
31.10.2008 (Mad) is, therefore, liable to be set
aside.
TTTTTTT
We are of the view that there was no breach of any
SIMPLY BEING A DIRECTOR, ONE IS NOT SUPPOSED
TO DISCHARGE A PARTICULAR ACT
I N OR ABOUT FEBRUARY, 2008, ONE NAVKAR
BUILDESTATES Private Limited (the said company)
through its Directors-respondents 1 to 3 approached
Gunmala Sales Private Ltd. (the accused) for certain
financial assistance to meet the requirement of the said
company. Accordingly, at the request of respondents 1
to 3, the appellant lent and advanced certain amount of
money to the said Company. The said amount carried
interest at the rate of 6% per annum. Respondents 1 to
3 along with the Managing Director of the said Company
agreed and undertook to pay the said amount on or
before 31.7.2011. It was further agreed by the
respondents that on their failure to pay the amount on
or before 31.7.2011, the appellant would be entitled to
claim interest at the rate of 18% per annum. The
respondents failed to repay the entire amount on or
before 31.7.2011.
On 31.7.2011, in acknowledgement of their liability and
towards repayment of the amount due, the said Company
issued cheques in favour of the appellant. On 2.8.2011,
when the appellant presented the said cheques to its
banker-Canara Bank, the same were returned unpaid with
the remark "Insufficient Funds". On 20.8.2011, the
appellant sent a statutory demand notice to respondents
1 to 4 under Section 138 of the NI Act. The said notice
was received by respondents 1 to 4 on 27.8.2011. As
respondents 1 to 4 failed to repay the amount as
demanded in the said notice, on 26.9.2011, the appellant
filed a complaint in the Court of the Chief Metropolitan
Magistrate at Calcutta. Learned Magistrate accepted the
74 I Lawteller I February 2015
condition of insurance policy , in the pr esent case,
entitling the Insurance Company to recovery rights.
TTTTTTT
Reference : Supreme Court. Kulwant Singh & Ors. v.
Oriental Insurance Company Ltd., civil appeal nos. 9927-
28 of 2014.
—————
said complaint and passed the summoning order.
Respondents 1 to 4 filed an application before the High
Court of Calcutta under Section 482 of the Code for
quashing the proceedings pending before the learned
Magistrate. The High Court framed to questions as
under:
(i) Whether the Directors can be prosecuted on
the bald assertion made in the complaint, that
"the Directors thereof and were at the time
when the offence committed in charge of and
were responsible for the conduct and day to
day business of the said accused No. 1
company".
(ii) Whether the Director who has resigned can
be prosecuted after his resignation has been
accepted by the Board of the Directors of the
Company.
So far as the first question is concerned, the High Court,
after referring to certain judgements of Supreme Court,
held that except the averment that the Directors were in-
charge of and responsible for the conduct and day to day
business of the Company, nothing has been stated in the
complaint as to what part was played by them and how
they were responsible for the finances of the company,
issuance of cheques and whether they had control over
the funds of the company. The High Court observed that
the complaint lacked material averments. The High Court
quashed the proceedings on this ground. So far as the
second question is concerned, the High Court held that
it is not necessary to answer it because the first question
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is answered in favour of respondents 1 to 4. The High
Court quashed the complaint.
Against the judgement of the High Court special leave
petition was filed. The Supreme Court accepted the
appeal and disposed of the same by drawing following
conclusions:
a) Once in a complaint filed under Section 138
read with Section 141 of the NI Act the basic
averment is made that the Director was in charge
of and responsible for the conduct of the
business of the company at the relevant time
when the offence was committed, the Magistrate
can issue process against such Director;
b) If a petition is filed under Section 482 of the
Code for quashing of such a complaint by the
Director, the High Court may, in the facts of a
particular case, on an overall reading of the
complaint, refuse to quash the complaint
because the complaint contains the basic
averment which is sufficient to make out a case
against the Director;
c) In the facts of a given case, on an overall
reading of the complaint, the High Court may,
despite the presence of the basic averment,
quash the complaint because of the absence of
more particulars about role of the Director in
the complaint. It may do so having come across
some unimpeachable, uncontrovertible
evidence which is beyond suspicion or doubt
or totally acceptable circumstances which may
clearly indicate that the Director could not have
been concerned with the issuance of cheques
and asking him to stand the trial would be
abuse of the process of the court. Despite the
presence of basic averment, it may come to a
conclusion that no case is made out against the
Director. Take for instance a case of a Director
suffering from a terminal illness who was
bedridden at the relevant time or a Director who
had resigned long before issuance of cheques.
In such cases, if the High Court is convinced
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BUSINESS
that prosecuting such a Director is merely an
arm-twisting tactics, the High Court may quash
the proceedings. It bears repetition to state that
to establish such case unimpeachable,
uncontrovertible evidence which is beyond
suspicion or doubt or some totally acceptable
circumstances will have to be brought to the
notice of the High Court. Such cases may be
few and far between but the possibility of such
a case being there cannot be ruled out. In the
absence of such evidence or circumstances,
complaint cannot be quashed;
d) No restriction can be placed on the High
Court's powers under Section 482 of the Code.
The High Court always uses and must use this
power sparingly and with great circumspection
to prevent inter alia the abuse of the process
of the Court. There are no fixed formulae to be
followed by the High Court in this regard and
the exercise of this power depends upon the
facts and circumstances of each case. The High
Court at that stage does not conduct a mini trial
or roving inquiry, but, nothing prevents it from
taking unimpeachable evidence or totally
acceptable circumstances into account which
may lead it to conclude that no trial is
necessary qua a particular Director.
The operative part of the judgement read as under :
We are concerned in this case with Directors who are
not signatories to the cheques. So far as Directors who
are not signatories to the cheques or who are not
Managing Directors or Joint Managing Directors are
concerned, it is clear from the conclusions drawn in the
above-mentioned cases that it is necessary to aver in
the complaint filed under Section 138 read Section 141
of the NI Act that at the relevant time when the offence
was committed, the Directors were in charge of and
were responsible for the conduct of the business of the
company. This is a basic r equirement. There is no
deemed liability of such Directors.
TTTTTTT
February 2015 I Lawteller I 75
BUSINESS
This averment assumes importance because it is the
basic and essential averment which persuades the
Magistrate to issue process against the Director. That
is why this Court in SMS Pharma-(1) observed that the
question of requirement of averments in a complaint has
to be considered on the basis of provisions contained
in Sections 138 and 141 of the NI Act.
TTTTTTT
SMS Pharma-(1), undoubtedly, says that it is necessary
to specifically aver in the complaint that the Director
was in charge of and responsible for the conduct of the
company's business at the relevant time when the offence
was committed. It says that this is a basic requirement.
If we revisit SMS Pharma-(1), we find that after referring
to the various provisions of the Companies Act it is
observed that those provisions show that what a Board
of Directors is empowered to do in relation to a
particular company depends upon the roles and
functions assigned to Directors as per the memorandum
and articles of association of the company. There is
nothing which suggests that simply by being a Director
in a company, one is supposed to discharge particular
functions on behalf of a company.
TTTTTTT
It cannot be concluded from SMS Pharma-(1) that the
basic requirement stated therein is sufficient in all cases
and whenever such an averment is there, the High Court
must dismiss the petition filed praying for quashing the
process. It must be remembered that the core of a criminal
case are its facts and in factual matters there are no fixed
formulae required to be followed by a court unless it is
dealing with an entirely procedural matter. The High
Court may in a given case on an overall reading of a
complaint and having come across some unimpeachable
evidence or glaring circumstances come to a conclusion
that the petition deserves to be allowed despite the
presence of the basic averment. In some cases, after
referring to SMS Pharma-(1), but considering overall
circumstances of the case, this Court has found that the
basic averment was insufficient, that something more was
needed and has quashed the complaint.
TTTTTTT
76 I Lawteller I February 2015
If any Director wants the process to be quashed on
the ground that only a bald averment is made in the
complaint and that he is really not concerned with
the issuance of the cheque, he must in order to
persuade the High Court to quash the process either
furnish some sterling uncontrovertible material or
acceptable circumstances to substantiate his
contention. He must make out a case that making him
stand the trial would be an abuse of the process of
court. He cannot get the complaint quashed merely
on the ground that apart from the basic averment no
particulars are given in the complaint about his role,
because ordinarily the basic averment would be
sufficient to send him to trial.
TTTTTTT
There could be a case where the High Court may feel
that filing of the complaint against all Directors is abuse
of the process of court. The High Court would be justified
in such cases in quashing the complaint after looking
into the material furnished by the accused. At that stage
there cannot be a mini trial or a roving inquiry. The
material on the face of it must be convincing or
uncontroverted or there must be some totally acceptable
circumstances requiring no trial to establish the
innocence of the Directors.
TTTTTTT
In the application filed by the respondents, no clear case
was made out that at the material time, the Directors
were not in charge of and were not responsible for the
conduct of the business of the company by referring to
or producing any uncontrovertible or unimpeachable
evidenced which is beyond suspicion or doubt or any
totally acceptable circumstances.
TTTTTTT
Authorities relied upon : 2008 (7) SCC 442, 2009 (17)
SCC 147, 2007 (9) SCC 481, 2007 (5) SCC 108, 66 Comp
Cas 26 (Delhi).
Reference : Supreme Court. Gunmala Sales Private Ltd.
v. Anu Mehta & Ors., criminal appeal no. 2228 of 2014.
—————
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SPECIAL JUDGE HAS ALL POWERS AS CONFERRED
ON COURT OF ORIGINAL JURISDICTION
I N THE YEAR 1983, A SOCIETY NAMED
MAHARANI AVANTI BAI Co-operative Society was
formed and from time to time members were enrolled by
its Managing Committee. Upto the year 1989 there were
90 members of the Society and thereafter further
enrolment of members was stopped. However, no land
was allotted to the Society for many years and in the
meantime its members became disinterested in the
running of the Society as the cost of the flats to be
constructed had gone very high and beyond their reach.
The society thus became dormant.
Some persons who were not members of the Society but
were far-sighted and clever minded became interested to
take over its management and got the land allotted from
Delhi Development Authority (DDA) to be utilized for
the benefits of their own persons. They forged certain
records of the Society to show that many of the original
members of the Society had resigned and a new
Managing Committee had been constituted. By forged
resignation letters of the original members of the Society,
new members were shown to have been enrolled and the
forged records were submitted in the office of the
Registrar of Co-operative Societies after entering into
some kind of criminal understanding with the officials
in that office. It is alleged that based on the forged
documents, which included minutes purporting to be of
the illegally constituted Managing Committee of the
Society comprising of all new members and also of
General Body Meetings which were never held, DDA was
approached for allotment of land with the assistance
rendered by the Registrar of Co-operative Societies by
certifying that all the meetings were duly held and a list
of new members of the Society was forwarded to DDA.
Accepting the same, DDA allotted a plot measuring 600
sq. meters to the Society in Dwarka for the benefit of
the 90 members of the Society in the year 1998.All these
facts emerged during the investigation by CBI.
On completion of the investigation, the CBI filed a
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GENERAL
charge-sheet in the Court of Special Judge against six
persons, out of whom two were public servants while
other four were the members of the bogus Managing
Committee of the Society, who had taken over the
dormant Society by resorting to forgery etc.
The Special Judge, CBI vide order dated 23rd July, 2008,
after perusing the material submitted by the CBI, took
cognizance of the offences punishable under Section
120-B, 420, 468 and 471 of the Indian Penal Code (IPC)
as well as Section 13(1)(d) of the Prevention of
Corruption Act, and ordered summoning of six persons
who has been named by the CBI in its charge-sheet as
accused persons alleged to have committed the offences
in conspiracy with each other. After all the accused
persons entered appearance, the Special Judge furnished
them copies of all the documents as per the requirement
of Section 207 of the Code of Criminal Procedure and
thereafter, the matter was adjourned to 9th March, 2009.
However, before the next date of hearing, accused R.N.
Aggarwal moved an application under Section 190 read
with Section 193 Cr.P.C. before the Special Judge for
summoning three more persons, namely, Madan Sharma
(PW-21), Ms. Sujata Chauhan (PW-23) and R.C. Bansal
(PW-30) as accused, who had been cited by the CBI as
its witnesses. The learned Special Judge kept that
application for consideration on 9th March, 2009.
However, on that day the matter was adjourned to 5th
May, 2009 for arguments on charge without mentioning
anything about the application which had been moved
by the accused R.N. Aggarwal. Special Judge heard
arguments on that application on 5th June, 2009 and
then by order dated 10th July , 2009 allowed that
application and summoned the prosecution witnesses
Madan Sharma, Sujata Chauhan and R.C. Bansal and also
directed the Director of CBI to get a case registered
against the Investigating Officer of the case under
Section 217, IPC for letting off these three persons.
Aggrieved by order dated 10th July, 2009, prosecution
February 2015 I Lawteller I 77
GENERAL
witnesses Sujata Chauhan and R.C. Bansal (respondents
herein) approached the High Court by filing separate
petitions under Section 482, Cr.P.C. read with Article 227
of the Constitution of India. CBI, feeling aggrieved by
the directions given by the Special Judge in the
impugned order for registration of a criminal case against
the investigating officer, also approached the High Court
by way of a revision petition.
Learned Single Judge of the High Court while
considering the order passed by the Special Judge, held
that the case is squarely covered by the decision of the
Delhi High Court in the case of Anirudh Sen v. State
[2006 (3) JCC 2081 (Delhi)], and consequently quashed
the order passed by the Special Judge.
Against the judgement of the High Court special leave
petition was filed. The Supreme Court accepted the
appeal, quashed the order passed by the High Court and
restored the order passed by Special Judge except the
direction issued to the CBI.
The operative part of the judgement read as under :
In Raj Kishore Prasad's case, this Court came to the
conclusion that power under Section 209, Cr.P.C. to
summon a new offender was not vested with the
Magistrate on the plain reading of its text as well as
proceedings before him not being an 'inquiry' and the
material before him not being 'evidence'. The question
considered by this Court was whether the undertaking
under Section 209, Cr.P.C. of a case triable by a Court
of Sessions, associate another person as an accused in
exercise of power under Section 319 of the Code or any
other provision of Cr.P.C.
TTTTTTT
In the case of Kishun Singh and Others v. State of Bihar
(supra), a Division Bench of this Court was considering
the question as to whether a Court of Sessions, to which
a case is committed for trial by a Magistrate, without
itself recording evidence, summon a person not named
in the police report presented under Section 173 Cr.P.C.
to stand trial along with those already named therein,
in exercise of power conferred by Section 319 of the Code.
TTTTTTT
78 I Lawteller I February 2015
A three Judge Bench of this Court in the case of Ranjit
Singh v. State of Punjab (supra) disappr oved the
judgement in Kishun Singh's case.
TTTTTTT
The Constitution Bench in Dharam Pal Singh's case has
overruled the ratio decided in Ranjit Singh's case
(supra) and Raj Kishore Prasad's case and held that
the ratio laid down in Kishun Singh's case (supra) has
been correctly decided.
TTTTTTT
Another Constitution Bench judgement in Hardeep
Singh v. State of Punjab (supra), while discussing the
powers of the Court concurred with the view taken in
Dharam Pal's case.
TTTTTTT
The procedure and the powers of the Special Judge
have been prescribed in Section 5 of the Act. A bare
reading of the provision would show that the special
judge may take cognizance of the offence without the
accused being committed to him for trail and the court
of special judge shall be deemed to be a court of session.
TTTTTTT
The constitution Bench in the case of A.R. Antuley
(supra), was of the view that the special judge appointed
under the Prevention of Corruption Act, enjoys all
powers conferred on the Court of original jurisdiction
functioning under the High Court except those
specifically conferred under the Act.
TTTTTTT
The order passed by the Special Judge would show that
while issuing summons against the respondents the
Court has considered in detail the material brought on
record during investigation.
TTTTTTT
The Special Judge, considering all those materials
brought on record during investigation and relying upon
the decisions of this Court, came to the conclusion that
the respondents are involved in the commission of offence
and consequently summons were issued against them.
TTTTTTT
The impugned order passed by the High Court quashing
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issuance of summons by the Special Judge against the
respondents is erroneous in law and cannot be
sustained.
TTTTTTT
PRINCIPLES FOR GRANT OR REFUSAL OF BENEFIT OF
EARLIER JUDGEMENT TO SIMILARLY SITUATED PERSONS
I N THE YEAR 1986, THE CHIEF MEDICAL OFFICER,
VARANASI, HAD advertised certain posts of
Homeopathic Compounder and Ward Boys in various
newspapers. Arvind Kumar Srivastava (the respondents)
applied for the said post and participated in the selection
process. After the interviews, they were kept in the
waiting list. Those who were in the select list were
offered the appointments. Some of those candidates who
were higher in merit and were offered the appointments
did not join. For this reason, candidates in the waiting
list were issued appointment letters by the then Chief
Medical Officer. These included the respondents herein
as well. However, before the respondents could join their
duties, new Chief Medical Officer assumed the charge
and blocked their joining. Thereafter, vide order dated
June 22, 1987 he even cancelled the said appointments
made by his predecessor for these Class-III and Class-
IV posts i.e. Homeopathic Compounder and Ward Boys.
The respondents filed the suit in the Court of City
Munsif, Varanasi challenging the aforesaid orders dated
June 22, 1987 cancelling their appointments by the new
Chief Medical Officer. This suit was registered as Suit
No. 695/1987. It appears that this suit could not be taken
to its logical conclusion as same was dismissed for non-
prosecution because of non appearance of the advocate
of the respondents. The respondents herein did not take
any further steps in the said suit either by filing
application for restoration of the suit or challenging the
said order in appeal. In fact, there was a complete quietus
on the part of these respondents.
It so happened that a few other candidates who were
also affected by the same orders dated June 22, 1987,
whereby their appointments were cancelled, approached
the Tribunal challenging the legality , validity and
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SERVICE
Authorities relied upon :2006 (3) JCC 2081, 1984 (2) SCC
500, 1979 (4) SCC 5, 1967 (2) SCR 423,AIR 1967 SC 1167.
Reference : Supreme Court. R.N. Agarwal v. R.C. Bansal
and others, criminal appeal nos. 2199-2201 of 2014.
—————
proprietary of the said order on several grounds. One
of the grounds taken was that before cancellation of
their appointments, no show-cause notice was given to
them. The Tribunal decided the case filed by them in their
favour vide judgement dated August 16, 1991 holding
the impugned order dated June 22, 1987 as illegal and
void and quashed the same. Against the order of the
Tribunal, the State filed the writ petition in the High
Court. This writ petition was dismissed on August 27,
1992 thereby confirming the order passed by the
Tribunal. The Special Leave Petition filed by the State
met the same fate as that was also dismissed by the
Supreme Court on August 12, 1994. In this manner, the
Tribunal's order dated August 16, 1991 attained finality
and the persons who had approached the Tribunal got
the appointments.
The respondents herein waited all this while, that is till
the dismissal of the Special Leave Petition in the year
1994. It is only thereafter , in the year 1995, the
respondents filed the writ petition for giving
appointments to them as well on the strength of the
judgement of the Tribunal given in the case of other
persons, claiming parity. This writ petition was rejected
vide order dated June 6, 1995 by the Chief Medical
Officer . Against the rejection the respondents
approached the Tribunal by filing Claim Petition No. 96/
1996. As mentioned above, the said petition was allowed
by the Tribunal on the ground that they were in the same
position in which the other successful candidates were
given relief and as such these respondents were also
entitled to the same relief. The High Court has affirmed
the order of the Tribunal.
Against the judgement of the High Court special leave
petition was filed. The Supreme Court accepted the
February 2015 I Lawteller I 79
SERVICE
appeal, set aside the order of the High Court as well as recognized exceptions in the form of laches and
that of the Tribunal. delays as well as acquiescence. Those persons
The operative part of the judgement read as under : who did not challenge the wrongful action in
their cases and acquiesced into the same and
Appointment order were issued in the year 1987, but
woke up after long delay only because of the
were also cancelled vide orders dated June 22, 1987.
reason that their counterparts who had
The respondents before us did not challenge these
approached the Court earlier in time succeeded
cancellation orders till the year 1996, i.e. for a period
in their efforts, then such employees cannot claim
of 9 years. It means that they had accepted the
that the benefit of the judgement rendered in the
cancellation of their appointments. They woke up in the
case of similarly situated persons be extended to
year 1996 only after finding that some other persons
them. They would be treated as fence-sitters and
whose appointment orders were also cancelled got the
laches and delays, and/or the acquiescence,
relief. By that time, nine years had passed. The earlier
would be a valid ground to dismiss their claim.
judgement had granted the relief to the parties before
(3) However, this exception may not apply in those
the Court. It would also be pertinent to highlight that
cases where the judgement pronounced by the
these respondents have not joined the service nor
Court was judgement in rem with intention to
working like the employees who succeeded in earlier
give benefit to all similarly situated persons,
case before the Tribunal. As of today, 27 years have
whether they approached the Court or not. With
passed after the issuance of cancellation orders.
such a pronouncement the obligation is cast upon
Therefore, not only there was unexplained delay and
the authorities to itself extend the benefit thereof
laches in filing the claim petition after a period of 9
to all similarly situated person. Such a situation
years, it would be totally unjust to direct the
can occur when the subject matter of the decision
appointment to give them the appointment as of today,
touches upon the policy matters, like scheme of
i.e. after a period of 27 years when most of these
regularization and the like [see K.C. Sharma &
respondents would be almost 50 years of age or above.
ors. v. Union of India (supra)]. On the other hand,
TTTTTTT
if the judgement of the Court was in personam
The legal principles can be summed up as under:
holding that benefit of the said judgement shall
(1) Normal rule is that when a particular set of
accrue to the parties before the Court and such
employees is given relief by the Court, all other
an intention is stated expressly in the judgement
identically situated persons need to be treated
or it can be impliedly found out from the tenor
alike by extending that benefit. Not doing so
and language of the judgement, those who want
would amount to discrimination and would be
to get the benefit of the said judgement extended
violative of Article 14 of the Constitution of India.
to them shall have to satisfy that their petition
This principle needs to be applied in service
does not suffer from either laches and delays or
matters more emphatically as the service
acquiescence.
jurisprudence evolved by this Court from time to
TTTTTTT
time postulates that all similarly situated persons
Authorities relied upon : 2008 (9) SCC 24, 1996 (6) SCC
should be treated similarly. Therefore, the normal
267, 1990 (3) SCC 157, 1985 (2) SCC 648.
rule would be that merely because other similarly
Reference : Supreme Court. State of Uttar Pradesh &
situated persons did not approach the Court
Ors. v. Arvind Kumar Srivastava & Ors., civil appeal no.
earlier, they are not to be treated differently.
9849 of 2014 [arising out of SLP (C) No. 18639 of 2012].
(2) However, this principle is subject to well
—————

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 LAW FOR YOU
Art. 246 OF CONST. DEMARCATES shall be entitled to set aside the impugned order as being
not legal or proper. The High Court is entitled to satisfy
FIELDS OF LEGISLATION
itself the correctness or legality or propriety of any decision
Article 246 of the Constitution does not provide for the
or order impugned before it as indicated above. However,
competence of Parliament or the State Legislature as
to satisfy itself to the regularity, correctness, legality or
commonly perceived but merely provides for their
propriety of the impugned decision or the order, the High
respective fields. Article 246 only empowers the Parliament
Court shall not exercise its power as an appellate power to
to legislate on the entries mentioned in List-I and List-III
re-appreciate or re-assess the evidence for coming to a
of the Seventh Schedule and that in case of a conflict
different finding on facts. Revisional power is not and
between a State Law and a Parliamentary Law under the
cannot be equated with the power of re-consideration of
entries mentioned in List-III, the Parliamentary law will
all questions of fact as a court of first appeal. Where the
prevail. It does not follow that the Parliament has a blanket
High Court is required to be satisfied that the decision is
power to legislate on entries mentioned in List-II as well.
according to law, it may examine whether the order impugned
Parliament does not have supreme right to legislate over
before it suffers from procedural illegality or irregularity.
any area.
Reference :SC. Hindustan Petroleum Corporation
Reference : SC. Security Association of India &
Ltd. v. Dilbahar Singh, civil appeal no. 6177 with
anr. v. Union of India & Ors., civil appeal no. 8814
2162, 7491 of 2004, 2901, 5212, 2859, 1224 of 2006,
with 8670, 8671, 8673, 8709 of 2011 Contempt
6954 with 7520, 7066 of 2005, 3313 of 2007, SLP
Petition (Civil) Nos. 268 68 of 2010 in C.A. No.
(C) 34303 of 2009, 22248 of 2007 and 11931 of
8814 of 2011, C.A. No. 4889 of 2014 [arising out of
2011.
SLP (C) No. 8979 of 2013].
REVISIONALJURISDICTION IS PART OF
HIGH COURT CANNOT EXERCISE ITS
APPELLATE JURISDICTION, BUT NOT
POWER TO REAPPRECIATE EVIDENCE
VICE-VERSA
IN RENT CONTROLMATTERS
Consequently, revisional jurisdiction is a part of appellate
Rent ControlAct does not entitle the High Court to interfere
jurisdiction but it is not vice-versa. Both, appellate
with the findings of fact recorded by the First Appellate
jurisdiction and revisional jurisdiction are creatures of
Court/First Appellate Authority because on re-appreciation
statutes. No party to the proceeding has an inherent right
of the evidence, its view is different from the Court/
of appeal or revision. An appeal is continuation of suit or
Authority below. The consideration or examination of the
original proceeding, as the case may be. The power of the
evidence by the High Court in revisional jurisdiction under
appellate court is co-extensive with that of the trial court.
these acts is confined to find out that finding of facts
Ordinarily, appellate jurisdiction involves re-hearing on facts
recorded by the Court/Authority below is according to law
and law but such jurisdiction may be limited by the statute
and does not suffer from any error of law. A finding of fact
itself that provides for appellate jurisdiction. On the other
recorded by Court/Authority below, if perverse or has been
hand, revisional jurisdiction, though, is a part of appellate
arrived at without consideration of the material evidence
jurisdiction but ordinarily it cannot be equated with that of
or such finding is based on no evidence or misreading of
a full-fledged appeal. In other words, revision is not
the evidence or is grossly erroneous that, if allowed to
continuation of suit or of original proceeding. When the
stand, it would result in gross miscarriage of justice, is open
aid of revisional court is invoked on the revisional side, it
to correction because it is not treated as a finding according
can interfere within the permissible parameters provided in
to law. In that event, the High Court in exercise of its
the statute. It goes without saying that if a revision is
revisional jurisdiction under the above Rent Control Acts

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LAW FOR Y OU
provided against an order passed by the Tribunal/Appellate
Authority, the decision of the revisional court is the
operative decision in law. As regards the extent of appellate
or revisional jurisdiction, much would, however, depend on
the language employed by the statute conferring appellate
jurisdiction and revisional jurisdiction. The ordinary
meaning of the word 'legality' is lawfulness. It refers to strict
adherence to law, prescription, or doctrine; the quality of
being legal. The term 'propriety' means fitness;
appropriateness, aptitude; suitability; appropriateness to
the circumstances or condition in conformity with
requirement; rules or principle, rightness, correctness,
justness, accuracy. The terms 'correctness' and 'propriety'
ordinarily convey the same meaning, that is, something
which is legal and proper. In its ordinary meaning and
substance, 'correctness' is compounded of 'legality' and
'propriety' and that which is legal and proper is 'correct'.
The expression "regularity" with reference to an order
ordinarily relates to the principles of natural justice and fair
play.
Reference :SC. Hindustan Petroleum Corporation
Ltd. v. Dilbahar Singh, civil appeal no. 6177 with
2162, 7491 of 2004, 2901, 5212, 2859, 1224 of 2006,
6954 with 7520, 7066 of 2005, 3313 of 2007, SLP
(C) 34303 of 2009, 22248 of 2007 and 11931 of
2011.
WHETHER DISPUTE RELATING TO
VOID/VOIDABLE CONTRACT CAN BE REPUGNANCY ARISES WHEN STATE
REFERRED TOARBITRATION? AND CENTRALLAWS PERTAIN TO SAME
Having provided for resolution of disputes through ENTRYIN CONCURRENT LIST
arbitration, parties cannot be permitted to avoid arbitration,
without satisfying the Court that it will be just and in the
interest of all the parties not to proceed with the arbitration.
Section 5 provides that the Court shall not intervene in the
arbitration process except in accordance with the
provisions contained in Part-I of the Arbitration Act. This
policy of least interference in arbitration proceedings
recognizes the general principle that the function of Courts
in matters relating to arbitration is to support arbitration
process. A conjoint reading of Section 5 and Section 16
82 I Lawteller I February 2015
makes it clear that all matters including the issue as to
whether the main contract was void/voidable can be
referred to arbitration. Otherwise, it would be a handy tool
available to the unscrupulous parties to avoid arbitration,
by raising the bogey of the underlying contract being void.
Therefore, whenever a plea is taken to avoid arbitration on
the ground that the underlying contract is void, the Court
is required to ascertain the true nature of the defence.
Undoubtedly, in cases, where the Court can come to a
conclusion that the contract is void without receiving any
evidence, it would be justified in declining reference to
arbitration but such cases would be few and isolated.
However, it would not be possible to shut out arbitration
even in case where the defence taken is that the contract
is voidable. In exercise of powers under Section 11(6) of
the Arbitration Act, the Court has to keep in view the
provisions contained in Section 8 of the Arbitration Act,
which provides that a reference to arbitration shall be made
if a party applies not later than when submitting his first
statement on the substance of the dispute. In contract,
Section 45 of the aforesaidAct permits the Court to decline
reference to arbitration in case the Court finds that the
agreement is null and void, inoperative or incapable of being
performed.
Reference :SC. Swiss Timing Limited v. Organizing
Committee, Commonwealth Games 2010, Delhi,
Arbitration Petition No. 34 of 2013.
Article 254 of the Constitution is only applicable when the
State Law is in its 'pith and substance', a law relating to an
entry in the Concurrent List on which the Parliament has
legislated. To determine the validity of a statute with
reference to the entries in the various lists, it is necessary
to examine the pith and substance of the Act and to find
out if the matter comes within an entry in List-III. The Court
while examining the pith and substance of a statute must
examine the whole enactment, its objects, scope and effect
of its provision. Only if it is found that the two enactments
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 LAW FOR Y OU
cover the same matter substantially and that there is a direct property.
and irreconcilable conflict between the two, the issue of Reference : SC. K. Prakash v. B.R. Sampth Kumar,
repugnancy arises. civil appeal no. 9047 of 2014 [arising out of Special
Reference : SC. Security Association of India & Leave Petition (Civil) No. 2271 of 2012].
anr. v. Union of India & Ors., civil appeal no. 8814 NO RELIEF FOR ADMISSION INTO
with 8670, 8671, 8673, 8709 of 2011 Contempt
PROFESSIONAL COURSES, IF FAULT
Petition (Civil) Nos. 268 68 of 2010 in C.A. No.
8814 of 2011, C.A. No. 4889 of 2014 [arising out of
ATTRIBUTABLE TO CANDIDATE
SLP (C) No. 8979 of 2013]. As time and again such instances of claiming admission
into such professional courses are brought before the
DECREE FOR SPECIFIC Court, and on every such occasion, reliance is placed upon
PERFORMANCE, DISCRETIONARYAND the various decisions of the Supreme Court for issuing
NOTARBITRARY necessary directions for accommodating the students to
The court's jurisdiction to grant decree of specific various courses claiming parity, unless are of exceptional
performance is discretionary but not arbitrary. Discretion nature and are brought before the Court within the time
must be exercised in accordance with the sound and schedule fixed by the Supreme Court, the Court or Board
reasonable judicial principles. Normally, when the trial should not pass orders for granting admission into any
court exercises its discretion in one way or the other after particular course out of time. In this context, it will have
appreciation of entire evidence and materials on record, to be stated that in whatever earlier decisions of the
the appellate court should not interfere unless it is Supreme Court such out of time admissions were granted,
established that the discretion has been exercised the same cannot be quoted as a precedent in any other
perversely, arbitrarily or against judicial principles. The case, as such directions were issued after due
appellate court should also not exercise its discretion consideration of the peculiar facts involved in those
against the grant of specific performance or extraneous cases. No two cases can be held to be similar in all
considerations or sympathetic considerations. It is true, respects. Therefore, in such of those cases where the
as contemplated under S. 20 that a party is not entitled to Court or Board is not in a position to grant the relief within
get a decree for specific performance merely because it is the time schedule due to the fault attributable to the
lawful to do so. Nevertheless once an agreement to sell candidate concerned, there should be no hesitation to
is legal and validly proved and further requirements for deny the relief. If for any reason, such grant of relief is
getting such a decree is established then the Court has not possible within the time schedule, due to reasons
to exercise its discretion in favour of granting relief for attributable to other parties, and such reasons are found
specific performance. Subsequent rise in price will not be to be deliberate or mala fide the Court should only
treated as a hardship entailing refusal of the decree for consider any other relief other than direction for
specific performance of agreement of sale. Rise in price is admission, such as compensation, etc. In such situation,
a normal change of circumstances and, therefore, on that the Court should ensure that those who were at fault are
ground a decree for specific performance cannot be appropriately proceeded against and punished in order
reversed. However, the court may take notice of the fact to ensure that such deliberate or malicious acts do not
that there has been an increase in the price of the property recur.
and considering the other facts and circumstances of the Reference : SC. Chandigarh Administration &
case, the Supreme Court, while granting decree for specific another v. Jasmine Kaur & others, civil appeal nos.
performance can impose such condition which may to 8377-8378 with 8376 of 2014 [arising out of SLP
some extent compensation the defendant-owner of the (C) Nos. 18137-18138 with 18099 of 2014].

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LAW FOR Y OU
ORDER REDUCING SENTENCE OF all under law. As a matter of fact, S. 142 of the Act, inter
ACCUSED TOALREADY UNDERGONE, alia, creates a legal bar on the Court from taking cognizance
SETASIDE of an offence under S. 138 except upon a written complaint.
Since a complaint filed under S. 138 of the Act before the
Imposition of sentence without considering its effect on
expiry of 15 days from the date on which the notice has
the social order in many cases may be in reality a futile
been served on the drawer/accused is no complaint in the
exercise. The social impact of the crime where it relates to
eye of law, obviously, no cognizance of an offence can be
offences against women involving moral turpitude or moral
taken on the basis of such complaint. Merely because at
delinquency, which have great impact on social order and
the time of taking cognizance by the Court, the period of
public interest, cannot be lost sight of and per se require
15 days has expired from the date on which notice has been
exemplary treatment. Liberal attitude by imposing meager
served on the drawer/accused, the Court is not clothed with
sentences or taking sympathetic view merely on account
the jurisdiction to take cognizance of an offence under S.
of lapse of time in respect of such offences will be counter-
138 on a complaint filed before the expiry of 15 days from
productive in the long run and against societal interest
the date of receipt of notice by the drawer of the cheque.
which needs to be cared for and strengthened by string of
A complaint filed before expiry of 15 days from the date on
deterrence built in the sentencing system. The sentencing
which notice has been served on drawer/accused cannot
courts are expected to consider all relevant facts and
be said to disclose the cause of action in terms of clause(c)
circumstances bearing on the question of sentence and
of the proviso to S. 138 and upon such complaint which
proceed to impose a sentence commensurate with the
does not disclose the cause of action the Court is not
gravity of the offence. The court must not only keep in view
competent to take cognizance.A conjoint reading of S. 138,
the rights of the victim of the crime but also the society at
which defines as to when and under what circumstances
large while considering the imposition of appropriate
an offence can be said to have been committed, with S.
punishment. Meager sentence imposed solely on account
142(b) of the NIAct, that reiterates the position of the point
of lapse of time without considering the degree of the
of time when the cause of action has arisen, leaves no
offence will be counter-productive in the long run and
manner of doubt that no offence can be said to have been
against the interest of the society.
committed unless and until the period of 15 days, as
Reference :SC. State of M.P. v. Bablu, criminal appeal
prescribed under clause (c) of the proviso to S. 138, has, in
no. 1845 of 2014 [arising out of SLP (Cri.) No. 5404
fact, elapsed. Therefore, a Court is barred in law from taking
of 2013].
cognizance of such complaint. It is not open to the Court
COMPLAINT FILED BEFORE EXPIRYOF to take cognizance of such a complaint merely because on
15 DAYS IS NOT COMPLAINT IN EYE OF the date of consideration or taking cognizance thereof a
LAW UNDER N.I.ACT period of 15 days from the date on which the notice has
been served on the drawer/accused has elapsed. All the
Reading of the provision contained in clause (c) of the
proviso to S. 138 makes it clear that no complaint can be five essential features of S. 138 as noted in the judgement
in AIR 2005 SC 954 must be satisfied for a complaint to be
filed for an offence under S. 138 unless the period of 15
filed under S. 138. If the period prescribed in clause (c) of
days has elapsed. Any complaint before the expiry of 15
days from the date on which the notice has been served the proviso to S. 138 has not expired, there is no commission
of an offence nor accrual cause of action for filing of
on the drawer/accused is no complaint at all in the eye of
complaint under S. 138 of the Act.
law. It is not the question of prematurity of the complaint
where it is filed before expiry of 15 days from the date on Reference : SC. Yogendra Pratap Singh v. Savitri
which notice has been served on him, it is no complaint at Pandey & Anr., criminal appeal nos. 605 of 2012
with 1924, 1925 of 2014.

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ELECTRONIC RECORDS, INADMISSIBLE
UNLESS REQUIREMENTS OF S. 65
EVIDENCEACTARE SATISFIED
Proof of electronic record is a special provision introduced
under the Evidence Act. The very caption of Section 65A
of the Evidence Act, read with Sections 59 and 65B is
sufficient to hold that the special provisions on evidence
relating to electronic record shall be governed by the
procedure prescribed under Section 65B of the Evidence
Act. That is a complete Code in itself. Being a special law,
the general law on secondary evidence under Section 63
and 65 has to yield. An electronic record by way of
secondary evidence therefore shall not be admitted in
evidence unless the requirements under section 65B are
satisfied. Thus, in the case of CD, VCD, chip, etc., the same
shall be accompanied by the certificate in terms of Section
65B obtained at the time of taking the document, without
which, the secondary evidence pertaining to that electronic
record, is inadmissible.
Reference :SC.Anvar P.V. v. P.K. Basheer and others,
civil appeal no. 4226 of 2012.
RULES ARE SUBORDINATE
LEGISLATION
Whether a rule is made under S. 7-A, S. 8 or S. 30 of
Securities Contracts (Regulation)Act, all Rules made under
the Act are to be laid before Parliament, making it clear
thereby that Rules made under each of these provisions
are statutory in nature. The fact that the Stock Exchange
makes these Rules under Ss. 7-A and 8 as opposed to the
QUOTE from COURT
The law is reason free from passion.
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LAW FOR Y OU
Central Government making them under S. 30 does not take
the matter very much further. Section 3(51) of the General
Clauses Act defines "Rules" as meaning "a rule made in
exercise of power conferred by law and shall include a
Regulation made as a rule under any enactment." It is clear
from this definition of 'Rule' also that Stock Exchanges who
make Rules in exercise of powers conferred by the Securities
Contracts (Regulation) Act are equally "Rules" and
therefore subordinate legislation. This makes it amply clear
that the "lien" spoken of by Rule 43 is a lien, conferred by
Rules under a statute.
Reference : SC. Stock Exchange, Bombay v. V.S.
Kandalgaonkar & Ors., civil appeal no. 4354 of
2003.
"MATERIAL FACTS" PLAINLY MEANS
FACTS PERTAINING TO THE SUBJECT
MATTER
The inquiry under Order VII, Rule 11(a) of CPC is only as
to whether the facts as pleaded disclose a cause of action
and not complete cause of action. The limited inquiry is
only to see whether the petition should be thrown out at
the threshold. In an election petition, the requirement under
Section 83 of the RP act is to provide a precise and concise
statement of material facts. The expression 'material facts'
plainly means facts pertaining to the subject matter and
which are relied on by the election petitioner. If the party
does not prove those facts, he fails at the trial.
Reference :SC.Ashraf Kokkur v. K.V.Abdul Khader,
civil appeal nos. 68-70 of 2012.
ooooooo
—ARISTOTLE
February 2015 I Lawteller I 85
 MIND SPRINT.....
1

3 4

6 7

8 9

10

11

12 13

14

15

ACROSS 14. An agreement between the party suing in a lawsuit

(plaintiff) and another person, usually an attorney,
who agrees to finance and carry the lawsuit in return
2. The owner of an adjoining property. for a percentage of the recovery (money won and
5. An established or widely accepted principle. paid).
6. Punishment by beating with a stick on the soles of the 15. Make, distribute or smuggle illicit goods.
feet.
8. A shelter or resting place for travellers or pilgrims.
9. The state of purity or abstinence from unlawful DOWN
sexual connection.
10. The act of withholding or keeping back something or
oneself. 1. Outward appearance or behaviour, such as facial
11. Financial transactions, especially the buying and expressions, tone of voice and gestures.
selling of merchandise, on a large scale. 3. The situation in which two independent firms are
12. The growing together or cohesion of separate things selling an identical product in the same market.
to form one. 4. The arrangement of the creditors of an estate in the
13. To diminish the conception of guilt on the plea of order in which they are to be p aid according to law.
attending circumstances. 7. Pronounce free from blame or obligation.
8. The act of reducing a criminal sentence resulting from
For answers turn to page no. 102 a criminal conviction.
14. To choose or elect as a fellow member or colleague.

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AWARD OF MAINTENANCE TO WIFE AND CHILDREN
M ARRIAGE OF SUNITA KACHWAHA (1ST
APPELLANT) WAS solemnized with Anil
Kachwaha (the respondent) on 5.2.1996 as per Hindu rites
and the spouses are blessed with two daughters. The
first daughter Ankita is aged 12 years and second
daughter Akshita is 8 years old as on the date of filing
of SLP Case of the appellant-wife is that when she was
living in the matrimonial house, the respondent and her
in-laws were harassing her on the ground that she had
not brought sufficient dowry . The appellant-wife is
alleged to have been subjected to physical and mental
cruelty, demanding car and dowry. As the torture became
intolerable, the appellant-wife had contacted her
brothers in the year 2006, and her brothers came to Kota
to take the appellants back on 24.4.2006. The matter was
reported to the SHO Police Station, Hahaveer Nagar,
Kota about the cruel treatment meted out to the
appellant-wife by the respondent and in-laws.
Because of the harassment, it is stated that the appellant-
wife could not continue to reside in the matrimonial
house, and the appellant-wife along with her children
went to her parents house at Jabalpur. The appellants
claimed maintenance by filing petition under Section 125
Cr.P.C. before the Second Additional Principal Judge,
Family Court, Jabalpur. Keeping in view the need of the
appellants, the Family Court by its Order dated 29.10.2007
directed the respondent to pay Rs. 3,000/- per month and
Rs. 2,500/- per month to the appellant-wife and to each
of the daughters respectively.
Aggrieved by the award of maintenance, respondent
preferred revision petition under Section 397 Cr.P.C.
before the High Court of Madhya Pradesh, Jabalpur
Bench wherein the High Court has modified the order,
disallowing the maintenance to the appellant-wife and
affirming the award of maintenance to the daughters.
Against the judgement of the High Court special leave
petition was filed. The Supreme Court set aside the
impugned order of the High Court and directed to pay
the maintenance of Rs. 3000/- p.m. to the appellant-wife
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GENERAL
as ordered by the Family Court and also pay the arrears
of maintenance payable to the appellant-wife.
The operative part of the judgement read as under :
The proceeding under Section 125 Cr.P.C. is summary
in nature. In a proceeding under Section 125 Cr.P.C., it
is not necessary for the court to ascertain as to who was
in wrong and the minute details of the matrimonial
dispute between the husband and wife need not be gone
into.
TTTTTTT
Inability to maintain herself is the pre-condition for
grant of maintenance to the wife.
TTTTTTT
The learned counsel for the respondent submitted that
the appellant-wife is well qualified, and working as a
teacher in Jabalpur and also working in Health
Department. Therefore, she has income of her own and
needs no financial support from respondent. Nothing
was placed on record before the Family Court or in the
High Court to prove her employment and her earnings.
In any event, merely because the wife was earning
something, it would not be a ground to reject her claim
for maintenance. Husband is in Government service and
according to the pay certificate then produced before
the Family Court, he was getting salary of Rs. 20,268/
- per month. The respondent owns a very big house of
his own in which he is said to have opened a hostel for
boys and girls and is earning a substantial income. She
has also stated that the respondent owns another house
at Talmandi Sabji Kota, Rajasthan and is r eceiving
rental income of Rs. 4,500/- per month. Having regard
to the salary and economic condition of the respondent,
the Family Court has awarded maintenance of Rs.
3,000/- to the wife and Rs. 2,500/- to each of the
daughters, in total Rs. 8,000/- per month. It is stated
that the maintenance amount awarded to the daughters
has been subsequently enhanced to Rs. 10,000/- per
month. The maintenance amount of Rs. 3,000/- per
month awarded to the wife appears to be minimal and
February 2015 I Lawteller I 87
GENERAL
in our view, the High Court ought not to have set aside
the award of maintenance.
TTTTTTT
The respondent is directed to pay the maintenance of
Rs. 3,000/- per month to the appellant-wife as ordered
by the Family Court and also pay the arrears of
maintenance payable to the appellant-wife within the
NO GROUND FOR REVIEW; IF THE DECISION ON A
QUESTION OF LAW HAS BEEN REVERSED IN
SUBSEQUENT DECISION BY A SUPERIOR COURT
P RADEEP KUMAR MASKARA(THE APPELLANT),
PRESENTLY resident of Dalkola, sub-divisional
town in the District of North Dinajpur, West Bengal, had
certain ancestral lands in the said town. On 30.3.1956,
the West Bengal Land ReformsAct, 1955 came into force
and the lands of the appellants were transferred from
State of Bihar to State of West Bengal by virtue of the
enactment of Bihar and West Bengal (Transferred
Territories) Act, 1956, which came into force w.e.f.
19.10.1956.
On 24.9.1958 the West Bengal Transferred Territory
(Assimilation of Laws) Act, 1958 was brought into force.
The provisions of the West Bengal Land Reforms Act
were extended to the transferred Territories by issuing a
Notification under Section 3(3) of the West Bengal
Transferred Territories (Assimilation of Laws) Act, 1958.
Some of the provisions of the West Bengal Reforms Act
were enforced in the transferred Territory.
Thereafter, in the year 1971, West Bengal Land Reforms
(Amendment) Act was enacted. Section 1(3) empowered
the State Government to appoint the date of
enforcement of the provisions. By virtue of Section 13
of the Act, Chapter II-B for ceiling on holding was
sought to be inserted for the first time in the West
Bengal Land Reforms Act, 1955, and the S tate
Government issued Notification no. 1516-L ref. 11
February, 1971, which reads as under:
In exercise of the power conferred by sub-
section (2) of Section 1 of the West Bengal
88 I Lawteller I February 2015
period of eight weeks.
TTTTTTT
Reference : Supreme Court. Sunita Kachwaha & Ors.
Anil Kachwaha, criminal appeal no. 2310 of 2014 [arising
out of SLP (Cri.) No. 2659/2012].
—————
Land Reforms (Amendment) Act, 1971
(President Act no. 3 of 1971) the Governor is
pleased hereby to appoint the 12th day of the
February as the date on which all the
provisions of the said Act except those in
clause (1) of section 7 and section 13, 15 and
17 thereof shall come into force in the whole of
the State of West Bengal.
The State Government issued further Notification no.
1650-I, Ref/2A-58/70 dated 13.2.1971 as under:
In exercise of the power conferred by sub-
section (2) of Section 1 of the West Bengal
Land Reforms (Amendment) Act 1971
(President's Act no. 3 of 1971), the Governor is
pleased hereby to appoint the 15th day of the
February, 1971, as the date on which the
provisions of clause (i) of S. 7 and Ss. 13, 15
and 17 of the said Act shall come into force in
the whole of the State of West Bengal.
In the year 1976, following three vesting proceedings
under Section 14-T of the West Bengal Land Reforms
Act, 1955 were initiated:
- No. 252/1976 against Mahabir Prasad Maskara,
father of the appellants
- No. 244/1976 against Appellant No. 1
- No. 280/1976 against Appellant No. 2.
Vide order dated 2.8.1983 and 17.8.1983, Proceedings No.
244/1976 and No. 280/1976 were disposed of with a
finding that appellant nos. 1 and 2 herein were minors
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 GENERAL
and hence, the lands held by them were taken into Act, 1972 shall apply to the transferred territories also.
account as lands of their father Mahabir Prasad Maskara. Relying upon the judgement in Gangadhar Singh's case
Proceedings No. 252/1976, pertaining to Mahabir Prasad (supra), the West Bengal Land Reforms and Tenancy
Maskara, was disposed of vide order dated 24.8.1983, Tribunal dismissed the application of the appellants
declaring 38.8591 acres of agricultural lands to vest in herein, who moved O.A. No. 3841/2001 due to inaction
the State. on part of the authorities to correct the Record of Rights.
Aggrieved by the same, Appellants and other co-sharers The Tribunal held that no Notification was required to
preferred a Writ Petition before the High Court of extend Chapter IIB of the Land Reforms Act to the
Calcutta, assailing the initiation of proceedings under 14- transferred territories.
T(3) of the West Bengal Land Reforms Act 1955, under The aforesaid order of the Tribunal was challenged
Chapter IIB of the said Act on the ground that the said before the High Court of Calcutta, which has upheld the
Chapter of the Land Reforms Act is not applicable to the order of the Tribunal holding that the decision of Ganga
territories which came from Bihar on transfer and where Dhar's case is the binding precedent and having not
the Appellants holds land. Learned Single Judge of the been assailed, has attained finality.
High Court, in the case of Pradip Kumar Maskara being Against the said decision special leave petition was filed.
C.R. No. 3465(W) of 1984, allowed quashing of the The Supreme Court accepted the appeal, set aside the
vesting proceedings on the ground of non applicability order passed by the order and that of Tribunal. The
of Chapter II-B of the aforesaid Act to the Transfer Tribunal was directed to the follow the decision of
Territories in the absence of required Notification. It has Calcutta High Court decided in the case of the appellants.
been submitted on behalf of the appellants that aforesaid
judgement of Learned Single Judge in the case of Pradip
The operative part of the judgement read as under :
The land in question was transferred from the State of
Kumar Maskara was never challenged and attained
Bihar to the S tate of West Bengal pursuant to the
finality vis-à-vis the State and the present appellant.
enactment of Bihar and W est Bengal (Transferred
In C.R. No. 2001(W) of 1985 preferred by two residents of Territories) Act, 1956 and the provisions of West Bengal
village Mohanpur, Karandighi, District West Dinajpur, Land Reforms Act were extended to the transferred
another learned Single Judge of the High Court of Calcutta territories. Consequently, the land in question was
made the Rule absolute by holding that in the absence of shown to have been vested in the State and the
any Notification under the West Bengal Land Reforms appellant challenged the said order of vesting by filing
Act 1955, Chapter IIB could not be made applicable to a writ petition being CR No. 3466 of 1984. The said
the transferred territories. Thereafter, in another case, writ petition was allowed by the Calcutta High Court
other learned Single Judge quashed the vesting and the said order of vesting was quashed on the
proceedings following Pradip Kumar Maskara judgement. ground of non applicability of Chapter IIB of the
In the case of Ganga Dhar Singh and ors. v. State of aforesaid Act. Similar order was passed in another writ
West Bengal & ors. (supra), another learned Single Judge petition in the Calcutta High Court in CR No. 2001 (W)
of the High Court of Calcutta, by order dated 9.4.1997, of 1985. The said orders were not challenged by the
held that no Notification is required under the West State either before the Division Bench of the High Court
Bengal Act for applicability of its provisions to the or before this Court and it attained finality.
Transferred Territories. The High Court held that there TTTTTTT
cannot be any doubt whatsoever that Chapter IIB of the After the aforesaid order was passed by the High Court,
West Bengal Land Reforms Act brought in by reason of the appellants moved an application along with the
Section 13 of West Bengal Land Reforms (Amendment) copy of the order before the Tribunal for a direction to

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GENERAL
correct the revenue record by entering their names. The
Tribunal dismissed the application on the ground that
the decision of the High Court in Gangadhar Singh's
case (supra) is binding precedents and the earlier
judgement of the High Court is no longer a good law.
TTTTTTT
The tribunal has no jurisdiction to differ with the
decision given by the Calcutta High Court in the writ
petition filed by the appellants. The T ribunal further
committed grave error in following the decision in
Gangadhar Singh's case treating it to be a Division
Bench judgement of Calcutta High Court when as a
matter of fact the decision in Gangadhar Singh's case
was adopted by a Single Judge of the High Court. Even
the judgement passed in the appellant's writ petition
filed in 1984 was neither considered nor distinguished.
TTTTTTT
EXECUTING COURT HAS AUTHORITY TO ADJUDICATE ALL
QUESTIONS OF RIGHT, TITLE AND INTEREST IN PROPERTY
T HE UNIVERSAL CONSTRUCTION COMPANY,
THE RESPONDENT No. 3 herein, instituted Civil
Suit No. 480 of 1971 in the High Court of Calcutta
invoking its original civil jurisdiction for realization of a
sum of Rs. 2,15,289.28 paise from the Engineers Syndicate
(India) Private Limited, the 4th respondent herein, and
an ex parte decree was passed in the suit. After obtaining
the decree, respondent No. 3 assigned the same in
favour of Abdul Rab, respondent No. 1 herein, on 20th
May, 2005. After the deed of assignment was given the
formal shape, the 1st respondent moved the High Court
of Calcutta and got the said decree transferred to the
Court of Sub Judge-I, Jamshedpur for execution by way
of attachment and sale of immovable properties of the
4th respondent situated within the jurisdiction of the
executing Court. Thereafter, the 1st respondent filed an
execution case against the 4th respondent. A schedule
of property was attached to the execution petition.
As the factual matrix would unfurl, the executing court
after receipt of the decree on 23.8.2006 issued notice to
the 4th respondent by registered post and when the
90 I Lawteller I February 2015
It is well settled that even if the decision on a question
of law has been reversed or modified by subsequent
decision of a superior court in any other case it shall
not be a ground for review of such judgement merely
because a subsequent judgement of the single judge has
taken contrary view. That does not confer jurisdiction
upon the tribunal to ignore the judgement and direction
of the High Court given in the case of the appellants.
TTTTTTT
Authorities relied upon : 2013 (3) SCC 63, 2001 (9) SCC
325, 1997 (II) CHN 140.
Reference : Supreme Court. Pradeep Kumar Maskara
and others v. State of West Bengal and others, civil
appeal nos. 9844-9846 of 2014 [arising out of Special
Leave Petition (C) nos. 23051-23053 of 2009].
—————
service was not effected, mode of publication was taken
recourse to for appearance of the judgement-debtor .
Eventually, the execution case was fixed for ex parte
hearing on 9.3.2007 on the petition of the assignee-
decree-holder. After following the procedure, the
schedule property was put up for sale by way of auction
and ultimately Abdul Rafai, respondent No. 2, purchased
the property and pursuant to the order of the Court took
over possession of the said immovable property.
As the factual narration would further undrape, at the
said juncture, the present appellants filed an application
under Order XXI, Rules 97, 99 and 101 of the Code of
Civil Procedure (C.P.C.) contending, inter alia, that the
disputed property originally belonged to the 4th
respondent who had borrowed a sum of Rs. 14,571/- from
his deceased father, Gopal Singh, by depositing the sale
deeds of the said property on 18.2.1971 at Calcutta and
had delivered possession of the said property to Gopal
Singh on 19.2.1971 in lieu of interest of the said borrowed
amount. When he failed to pay the borrowed sum, the
4th respondent agreed to transfer the said property for
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a consideration of Rs. 25,000/- to Gopal Singh after
adjusting the borrowed amount i.e. Rs. 14,571/-. Regard
being had to the said arrangement, Gopal Singh had paid
the balance amount of Rs. 10,429/- and accordingly an
agreement for sale was executed. When the 4th
respondent did not honour his part of the contract, Gopal
Singh instituted Title Suit No. 43 of 1974 in the Court of
Sub Judge-I, Jamshedpur against the 4th respondent and
eventually the said suit was decreed by the Second
Additional Sub Judge-I on 14.5.1977. Thereafter, a case
was filed and in pursuance of the decree a sale deed was
executed on 10.10.1982 in favour of the father of the
appellants through Court and he was put in possession
through Nazir of the Civil Court in respect of the
property in question, and after the demise of Gopal
Singh, the appellant, being sons, inherited the said
property and remained in possession having right, title
and interest till 27.4.2008 when all of a sudden,
respondent No. 2 through the help of Nazir took delivery
of the property after dispossessing the appellants
therefrom. On an inquiry being made, they came to know
under what circumstances they had been dispossessed
by the Nazir. The application further asserted that the
schedule of property which had been appended to
Execution Case No. 24 of 2006 had been deliberately
added though the 4th respondent had no concern with
the same. It was also put forth that an order of
attachment was published in a local daily 'Uditwani' dated
23.10.1982 in respect of the scheduled property by the
High Court of Calcutta in Suit No. 480 of 1971 and the
father of the appellants coming to know of the same had
filed an objection before the High Court which after
considering the objection and taking note of the right,
title and interest of the father of the appellants had
released the said property from attachment but the 1st
respondent by suppressing all the facts got the said
schedule of property attached and put the same in
auction and respondent No. 2 who was set up by the
respondent No. 1 became the purchaser of the property.
In essence, it had been pleaded that respondent Nos. 1
and 2 had colluded to put the property to auction which
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GENERAL
did not belong to the respondent No. 4 and was not
meant for attachment and sale, for it had been already
released by the High Court of Calcutta and, in any case,
the respondent No. 4 had no concern with the said
property. In the application it was prayed that the
appellants, the applicants in the court below, should be
put in possession of the scheduled property and the
respondents be restrained from changing the nature and
character of the property till the adjudication of the
application.
The said application was resisted by respondent Nos. 1
and 2, the opposite parties No. 1 and 2 before the
executing court, on many a ground and basically
revisiting the facts how the decree had been passed by
the High Court of Calcutta and how there had been a
deed of assignment and further the fairness of procedure
adopted in putting the property to auction and the
eventual sale.
The executing court framed two issues which read as
follows:
I. Whether the transferee executing court has
jurisdiction to adjudicate the present petition
filed by the applicants under order XXI rules
97, 99 and 101 C.P.C.?
II. Whether the applicants are entitled to get as
relief in claim in their application?
The executing court noted the submissions of both the
parties, referred to the order passed by the High Court
of Calcutta transferring the decree for execution, adverted
to the provisions under Sections 39 to 42 of C.P.C.,
placed reliance on certain authorities as regards the
limitation on the powers of the transferee court under
Section 42 of C.P.C., recorded the fact that it had already
dismissed the execution case to the full satisfaction of
the decree-holder on 19.12.2008 and informed the same
to the Registrar of the High Court of Calcutta, and
eventually came to hold that it had no jurisdiction to
reopen and discuss the matter pertaining to the title of
the parties in execution case at the instance of a third
party. In that backdrop, it observed that the executing
court had become functus officio and could not
February 2015 I Lawteller I 91
GENERAL
entertain the application. Adverting to the second issue,
the executing court noted the contentions and referred
to the authorities earlier cited but ultimately opined that
as a finding had been recorded to the effect that the
transferee-executing court had no jurisdiction to
entertain the petition, regard being had to the fact that
the decree had been executed to the full satisfaction and
an intimation had been sent to the Registrar of the
Calcutta High Court, the controversy raised could not
be dealt with and no relief could be granted.
The aforesaid order came to be assailed before the High
Court in W.P.C. No. 348 of 2011 under Article 227 of the
Constitution of India. A preliminary objection was raised
on behalf of the 1st respondent that an order passed
under Order XXI, Rule 98 to 100 of C.P.C. is a decree as
per the provisions contained under Order XXI, Rule 103
of C.P.C. and, therefore, an appeal would lie and the writ
petition was not maintainable. The preliminary objection
was resisted by proponing a contention that only those
orders which adjudicate the dispute between the parties
would be treated as decree but as in the case at hand,
the Court had not decided the lis in question as it had
expressed an opinion that it had no jurisdiction after
having become functus officio, an appeal would not lie.
The learned Single Judge accepted the preliminary
objection on the foundation that dispute between
parties regarding jurisdiction of executing court could
be determined under Order XXI, Rule 100 of C.P.C. and
that when a decision had been rendered on that score
it would be a deemed decree under Order XXI, Rule 103
of C.P.C. and hence, the writ petition was not
maintainable. Expression of aforesaid view entailed
dismissal of the writ petition.
Against the judgement of the High Court special leave
petition was filed. The Supreme Court accepted the
appeal, set aside the order of the High Court, resultantly
the High Court was directed to decide the matter as
necessary under Article 227 of the Constitution of India.
The operative part of the judgement read as under :
As has been put forth a proceeding in terms of Rule 97
or Rule 99 is in the nature of a suit and the adjudication
92 I Lawteller I February 2015
is similar to that of a suit and when in the case at hand,
the Court has declined to embark upon any enquiry by
calling for reply, recording evidence and appropriately
adjudicating the controversy, the order passed cannot
be regarded under Rule 103 of Order XXI as a decree.
TTTTTTT
The court has the authority to adjudicate all the
questions pertaining to right, title or interest in the
property arising between the parties. It also includes
the claim of a stranger who apprehends dispossession
or has already been dispossessed from the immovable
property. The self-contained Code, as has been
emphasized by this Court, enjoins the executing court
to adjudicate the lis and the purpose is to avoid
multiplicity of proceedings. Order XXI, Rule 101
provides for the determination of necessary issues. Rule
103 clearly stipulates that when an application is
adjudicated upon under Rule 98 or Rule 100 the said
order shall have the same force as if it were a decree.
Thus, it is a deemed decree.
TTTTTTT
Whether the executing court has correctly expressed the
view that it has become functus officio or not and
thereby it has jurisdiction or not, fundamentally pertains
to rectification of a jurisdictional error. It is so as there
has been no adjudication. If a subordinate court
exercises its jurisdiction not vested in it by law or fails
to exercise the jurisdiction so vested, the said order
under Section 115 of the Code is revisable. Had the
executing court apart from expressing the view that it
had become functus officio had adjudicated the issues
on merits, the question would have been different, for
in that event there would have been an adjudication.
TTTTTTT
The executing court noted the submissions of both the
parties, referred to the order passed by the High Court
of Calcutta transferring the decree for execution,
adverted to the provisions under Sections 39 to 42 of
C.P.C., placed reliance on certain authorities as regards
the limitation on the powers of the transferee court
under Section 42 of C.P.C., recorded the fact that it had
already dismissed the execution case to the full
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satisfaction of the decree-holder on 19.12.2008 and
informed the same to the Registrar of the High Court of
Calcutta, and eventually came to hold that it had no
jurisdiction to reopen and discuss the matter pertaining
to the title of the party. In that backdrop, it observed
that the executing court had become functus officio and
could not entertain the application.
TTTTTTT
A preliminary objection was raised on behalf of the 1st
respondent that an order passed under Order XXI, Rule
98 to 100 of C.P.C. is a decree as per the provisions
contained under Order XXI, Rule 103 of C.P.C. and,
therefore, an appeal would lie and the writ petition was
not maintainable.
TTTTTTT
The learned Single Judge accepted the preliminary
objection on the foundation that dispute between
INDIVIDUAL INCOME NOT TO BE INCLUDED IN
PARENT'S INCOME FOR DETERMINING CREAMY LAYER
O N 16.7.2002, THE PUNJAB STATE ELECTRICITY
BOARD TOOK A decision to fill up 21 posts of
Accounts Officer. The above posts were to be filled up
by way of direct recruitment. The appellant earned 164
marks in the process of selection. He made the grade,
by way of merit, from amongst "backward class"
candidates. It is therefore, that he came to be appointed
as Accounts Officer, by direct recruitment.
Respondent No. 4-Anil Kumar Uppal, had also applied
for appointment by way of direct recruitment, in
response to the same advertisement (in furtherance
whereof, the appellant was selected and appointed). His
candidature was, however, not accepted. It is therefore,
that respondent no. 4 approached the Punjab and
Haryana High Court at Chandigarh (the High Court)
seeking an appropriate direction to the Board, requiring
it to allow him (respondent no. 4) to participate in the
process of selection. By an interim order passed by the
High Court, respondent no. 4 was allowed to participate
in the process of selection.
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SERVICE
parties regarding jurisdiction of executing court could
be determined under Order XXI, Rule 100 of C.P.C. and
that when a decision had been rendered on that score
it would be a deemed decree under Order XXI, Rule 103
of C.P.C. and hence, the writ petition was not
maintainable.
TTTTTTT
The High Court has fallen into error by opining that
the decision rendered by the executing court is a decree
and therefore, an appeal should have been filed.
TTTTTTT
Authorities relied upon : AIR 2002 Chhattisgarh 1, AIR
1959 SC 492,AIR 1953 23,AIR 1949 PC 239.
Reference : Supreme Court. Sameer Singh and Another
v. Abdul Rab and Others, civil appeal no. 9699 of 2014
[arising out of SLP (Civil) No. 33699 of 2011].
—————
On considering the candidature of respondent no. 4, the
Selection Committee awarded him 146 marks. It is
therefore apparent, that in terms of merit, respondent no.
4 could not march over the superior claim of the
appellant. This was so because, whilst the appellant had
been awarded 164 marks in the process of selection,
respondent no. 4 had been awarded only 146 marks.
Respondent no. 4, in order to claim appointment, chose
to assail the claim of the appellant by asserting, that the
appellant did not factually belong to the "backward
class", and as such, his merit could not be determined
with reference to the posts reserved for "backward class"
candidates. If he could succeed in establishing the
aforesaid position, he would fall in the zone of selection,
being possessed of the next highest marks (after the
appellant) from the category of backward class
candidates. Insofar as the instant aspect of the mater is
concerned, the pointed contention of respondent no. 4
was, that the appellant belonged to the "creamy layer",
and as such, he was dis-entitled for being considered
February 2015 I Lawteller I 93
SERVICE
from amongst "backard class" candidates.
The High Court, while disposing of Writ Petition No.
7660 of 2004, vide the impugned order dated 2.3.2009,
arrived at the conclusion, that the appellant actually
belonged to the "creamy layer", and as such, was dis-
entitled to be considered as a "backward class"
candidate. In arriving at the aforesaid conclusion, the
High Court took into consideration the income of the
appellant himself, to declare that he belonged to the
"creamy layer". The aforesaid determination as rendered
by reading down the policy instructions issued by the
State Government, on the basis whereof, the
backwardness of a candidate had to be adjudged. The
aforesaid policy instructions were read down, to include
the income of the person concerned, alongwith the
income of the parents of the person, contemplated by
the policy instructions.
Against the judgement of the High Court special leave
petition was filed. The Supreme Court accepted the
appeal, set aside the judgement of the High Court,
restored the appointment of the appellant Surinder Singh
to the post of Accounts Officer.
The operative part of the judgement read as under :
Under the office memorandum dated 8.9.1993, the claim
of the appellant for grant of a backward class certificate
was determinable under category IV thereof, since it is
not a matter of dispute that the appellant is a qualified
Chartered Accountant. However, in column 3 to the
schedule relating to category IV, it is mentioned that the
criteria specified against category VI would be
applicable to those who fall under category IV.
TTTTTTT
There is really no room for any doubt, that in clauses
(a) and (b) thereof, it is the income/wealth of the parents
of the individual concerned, which is of relevance. The
description is clearly silent about the individual's own
income. It is not possible for us to accept, that the
individual's own income could have been taken into
consideration. The above determination of ours, is with
reference to categories IV and VI. Therefore, even with
reference to category IV, which includes professional's,
94 I Lawteller I February 2015
the income of the professional, has not been included.
Thus viewed, we are satisfied, that on the plain reading
of category VI of the office memorandum dated 8.9.1993,
that it was not the income of the individual concerned,
but that of his parents, that would determine whether
he would fall within the creamy layer or not.
TTTTTTT
Whether it was open to the High Court, to include the
individual's income in determining his eligibility for
being declared as backward class, by reading down the
policy instructions on the subject. In sofar as the instant
aspect of the matter is concerned, there can be no doubt,
that the issue is determinable with reference to the
decision rendered by this Court in Indra Sawhney v.
Union of India.
TTTTTTT
In Ashok Kumar Thakur v. State of Bihar the Office
Memorandum dated 8.9.1993 had been examined by
this Court, specifically with reference to the decision
rendered in Indra Sawhney's case (supra). Having done
so, this Court expressly approved and confirmed the
Schedule to the Office Memorandum dated 8.9.1993.
TTTTTTT
Based on the aforesaid declaration of law, it was not
open to the High Court to evaluate the office
memorandum dated 8.9.1993 from any other parameters.
TTTTTTT
The High Court clearly erred in reading down the office
memorandum dated 8.9.1993 and to include therein the
income of the individual concerned while determining
whether or not he falls within the "creamy layer".
TTTTTTT
There is really no room for any doubt, that the
exposition with reference to category VI in the office
memorandum dated 8.9.1993 related only to the income
of the parents of the individual concerned. And that, the
income of the individual concerned was not to be taken
into consideration.
TTTTTTT
The above issue came to be examined yet again by the
Government of India, Ministry of Personnel, Public
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Grievances & Pensions (Department of Personnel and
Training) through its memorandum dated 14.10.2004.
In the above memorandum, a large number of queries
were clarified.
TTTTTTT
The above said queries came to be answered in
paragraph 8 by observing as under:
8. In regard to clauses (vi), (vii) and (viii) of para
4, it is clarified that the creamy layer status of a
candidate is determined on the basis of the status
of his parents and not on the basis of his own
status or income or on the basis of status or income
of his/her spouse. Therefore, while determining
the creamy layer status of a person the status or
the income of the candidate himself or of his/her
BAR OF ORDER 2 RULE 2 WILL NOT APPLY, WHERE
CAUSE OF ACTION OF TWO SUITS IS DIFFERENT
T HE PLAINTIFF FILEDA SUIT BEING O.S. NO. 252
OF 1986 FOR specific performance of the agreement
for sale dated 19.1.1984. According to him, the said land
was allotted to the defendant on lease-cum-sale
agreement on 4.7.1975 by theTamil Nadu Housing Board.
Since the defendant had not constructed building on the
said site for the purpose of getting sale deed as
contemplated under the lease-cum-sale agreement, the
Board did not execute the sale deed in favour of the
defendant. Hence, he entered into a sale agreement on
19.1.1984 with the plaintiff. In the said agreement, he
agreed to sell the suit house site to the plaintiff for a
total consideration of Rs. 3,84,220/- and received a sum
of Rs. 1,00,000/- as advance in cash towards part of the
sale consideration. It is alleged that the defendant agreed
that after a sale deed executed in his favour from the
Housing Board he will execute and register the sale deed
in favour of the plaintiff or his family members after
receiving the balance sale consideration. Time for
performance of the agreement was tentatively fixed as
four months and the same was extended until the
defendant got the sale deed executed from the Housing
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GENERAL
spouse shall not be taken into account.
TTTTTTT
We are satisfied that the individual's income was not
required to be clubbed with the income of his parents,
while determining whether or not he was eligible to be
granted a backward class certificate. The determination
to the contrary by the High Court is liable to be set
aside. The same is accordingly hereby set aside.
TTTTTTT
Authorities relied upon : 1992 (Suppl. 3) SCC 217.
Reference : Supreme Court. Surinder Singh v. Punjab
State Electricity Board, Patiala and Ors., civil appeal no.
6957 of 2009 (from the Judgement and Order dated
2.3.2009 of the High Court of Punjab and Haryana at
Chandigarh in Civil Writ Petition No. 7660 of 2004).
—————
Board. The parties agreed that the plaintiff shall prepare
a plan for construction of a building in the said property
and the defendant will sign the building plan and get
the plant approved and the plaintiff thereafter shall
construct the building in the suit housing plot at his own
expenses.
Pursuant to the sale agreement, the plaintiff took
possession of the suit property and completed the
construction. According to the plaintiff, the defendant
had been representing to the plaintiff that he has not
yet got the sale deed executed in his favour from the
Housing Board but attempted to forcibly take possession
of the building constructed on the suit property by the
plaintiff. So the plaintiff filed a suit being O.S. No. 445/
1985 on 11.9.1985 for permanent injunction restraining
the defendant herein from taking forcible possession of
the building constructed in the suit property. Pending
the aforesaid suit, few days after , the plaintif f on
25.4.1986 filed aforesaid suit for specific performance
being O.S. No. 252 of 1986.
The defendant pleaded in his written statement that the
agreement dated 19.1.1984 is not a valid document and
February 2015 I Lawteller I 95
GENERAL
the plaintiff cannot maintain the suit as he had
relinquished his right. It is also stated that the agreement
was executed when the defendant was not the owner of
the site and any sale by the defendant was prohibited
as per the terms and conditions of the lease-cum-sale
agreement entered into with the Housing Board and so
the agreement in question is void, inoperative and
opposed to law. The defendant also denied the payment
of Rs. 1,00,000/- in cash as advance as alleged by the
plaintiff. Even with respect to the averment in the plaint
that the plaintiff was permitted to put up construction
in the suit site, the same is denied. The defendant also
denied that the plaintiff put up construction at his own
cost. The defendant further denied that the plaintiff was
given possession of the suit property and claimed that
he never handed over possession of the property to the
plaintiff at any point of time. It is alleged that the plaintiff
is not entitled to a decree for specific performance
because the agreement dated 19.1.1984 no longer
subsists. It is further alleged that the subsequent suit
being O.S. No. 252/1986 for specific performance is
barred under Order 2, Rule 2 of the Code of Civil
Procedure because the plaintiff who instituted the earlier
suit O.S. No. 445/1985, should have included the relief
for specific performance and, in any event, could not
have filed O.S. No. 252/1986 without any leave of the
Court.
The defendant also filed a suit being O.S. No. 3/1986
seeking a decree for injunction restraining the purchaser
(defendants therein) from interfering with his possession
and enjoyment of the suit property. The trial court tried
all the three suits together and dismissed the suit filed
by the plaintiff and defendant for injunction in O.S. Nos.
445/1985 and 3/1986 and decreed the suit in O.S. No. 252/
1986 preferred by the plaintiff for specific performance
with the direction to the defendant to execute and register
the sale document in favour of the plaintiff.
Aggrieved by the judgement and decree of the trial court,
the defendant S. Natarajan preferred appeals before the
High Court being A.S. Nos. 665 and 666 of 2001.
High Court held that the causes of action in both the
96 I Lawteller I February 2015
suits filed by the appellant are identical, arose from the
same transaction and that is why the trial court also had
a common trial and decided the case by a common
judgement. The plaintiff has not come forward with the
suit in O.S. 252/1986 on the basis of the fact that the
sale deed with respect to the suit property was obtained
only on 18.2.1985 by the defendant failed to execute the
sale deed in favour of the plaintiff pursuant to Ex. A1
agreement and so the prayer sought for in the said suit
could have been sought for even in the Original Suit No.
445/1985 as the pleading set out in the plaint in O.S. 252/
1986 was available even on the date when O.S. No. 445/
1985 was filed. Since the plaintiff omitted to seek such a
relief and did not obtain the leave of the Court to file
the subsequent suit, it amounts to relinquishment of his
rights which is sought for in O.S. 252/1986 and he cannot
sustain the subsequent suit in O.S. 252/1986 for the relief
sought for in that suit in view of Order 2, Rule 2 of the
Code.
The High Court formulated as many as following six
points for consideration to decide the appeals:
(1) Whether Ex.A1 is enforceable in law?
(2) Whether the suit in O.S. No. 252/1986 is
maintainable on the basis of Ex.A1 in view of
variations made in Exs.B7 and B9?
(3) Whether the respondent/plaintiff was ready
and willing to perform his part of the contact?
(4) Whether the suit in O.S. 252/1986 is
maintainable in view of Order 2, Rule 2 of the
Code of Civil Procedure?
(5) Whether the relief for the specific
performance of the agreement suit in O.S. 252/
1986 can be rejected on the ground that the
respondent/plaintiff has not come to court with
clean hands?
However, instead of deciding all the points, the High
Court took up only Point No. 4 and 5 and decided the
appeal in following three paragraphs:
13. Further, in the present case, the parties and
the court felt that in view of common issue, the
said suit was to be dealt with and so the trial
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court in a common judgement dated 28.7.2000
disposed of the same. The trial court though
framed the issue, simply rejected that it is not
barred by Order 2, Rule 2 of the Code on
assumption that there is a change of cause of
action. So the said findings of the trial court
cannot be sustained in law. So we can safely
conclude that the suit in O.S. No. 252/1986 is
barred under Order 2, Rule 2 of the Code and
so it has to be rejected.
14. Even with respect to Point No. 5, it has to
be held that the respondent/plaintiff has come
to court by filing O.S. 252/1986 with unclean
hands. Though in the plaint filed in O.S. No. 3/
1986 which was filed on 5.9.1985, it is
specifically stated that conditional sale deed
dated 18.2.1985 was executed in favour of the
appellant/defendant by the Tamil Nadu Housing
Board. In O.S. No. 252/1986 which was filed on
5.4.1986, the respondent/plaintiff has come
forward with the false plea that the appellant/
defendant had been representing to the plaintiff
that he had not yet got the sale deed executed
in his favour by the Tamil Nadu Housing Board,
which is contrary to the averment made in the
earlier suit. Learned counsel for the respondent/
plaintiff also tried to submit that the respondent
has no knowledge about the said document so
as to enable him to file the suit for specific
performance of the Agreement on that basis.
The said plea is nothing but false in view of
the specific averment made in the plaint in O.S.
No. 3/1986. The said plea that the sale deed is
yet to be got by the appellant/defendant from
the Tamil Nadu Housing Board is a material fact
to enforce the right and got the sale deed by
the respondent/plaintiff arose only after getting
the sale deed by the appellant/defendant from
the Tamil Nadu Housing Board as contemplated
under Ex.A1. The respondent/plaintiff
suppressed the said material fact. Hence, even
on that ground the suit in O.S. 252/1986 has to
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GENERAL
be rejected holding that the respondent/plaintiff
is not entitled to equitable relief of specific
performance of the Agreement in view of the
above said fact.
15. In view of the findings given above with
respect to point Nos. 4 and 5, we are; not
inclined to deal with the other points.
By impugned order dated 30.4.2004, the High Court
allowed the appeals preferred by the defendant based
on Order 2 Rule 2 with a direction to the defendant to
pay the cost of construction (Rs. 8,00,000/-) to the
plaintiff and on such deposit, the plaintiff would hand
over the suit property with building to the defendant and
after handing over the same, he can withdraw the
aforesaid amount along with the money already
deposited, if any.
Against the judgement of the High Court special leave
petition was filed. The Supreme Court accepted the
appeal in part. The matter was remanded back to the High
Court to decide the appeals by recording its findings on
other points formulated by it.
The operative part of the judgement read as under :
Cause of action consists of a bundle of facts which will
be necessary for the plaintiff to prove in order to get a
relief from the Court. However, because the causes of
action for the two suits are different and distinct and
the evidences to support the relief in the two suits are
also different then the provisions of Order 2 Rule 2 CPC
will not apply.
TTTTTTT
A perusal of the pleadings in the two suits and the cause
of action mentioned therein would show that the cause
of action and reliefs sought for are quite distinct and
are not same.
TTTTTTT
When the precise cause of action upon which the
previous suit for injunction was filed because of
imminent threat from the side of the defendant of
dispossession from the suit property then the subsequent
suit for specific performance on the strength and on the
basis of the sale agreement cannot be held to be the same
February 2015 I Lawteller I 97
GENERAL
cause of action. In the instant case, from the pleading
of both the parties in the suits, particularly the cause of
action as alleged by the plaintiff in the first suit for
permanent injunction and the cause of action alleged
in the suit for specific performance, it is clear that they
are not the same and identical.
TTTTTTT
On reading of the plaint of the suit for injunction filed
by the plaintiff, there is nothing to show that the plaintiff
intentionally relinquished any portion of his claim for
the reason that the suit was for only injunction because
of the threat from the side of the defendant to dispossess
him from the suit property. It was only after the defendant
in his suit for injunction disclosed the transfer of the suit
property by the Housing Board to the defendant and
thereafter denial by the defendant in response to the
legal notice by the plaintiff, the cause of action arose
RIGHT TO RESUME POSSESSION EXISTS IN THE
EVENT OF NON-PAYMENT OF AUCTION PRICE
K EDAR NATH (THE RESPONDENT) HAD
PARTICIPATED IN AN auction conducted by
HUDA-the appellants for disposal of certain booths
situated in Sector 9 at Panchkula and had offered the
highest bid of Rs. 4 lakhs for booth no. 103 situated in
the said sector. As he was the highest bidder, subject to
the conditions of the auction, he was allotted the said
booth vide Memo No. 12351 dated 14th September, 1988.
The respondent had deposited Rs. 40,000/-, being 10%
of the amount of bid, immediately and thereafter he had
further deposited a sum of Rs. 60,000/- so as to make
25% of the total amount offered by him.
The balance amount of Rs. 3 lakhs was to be paid by the
respondent to the appellant authorities in 10 half yearly
installments along with interest @ 10% per annum. There
was a condition in the auction sale that in case of default
in payment, the respondent had to pay interest @ 10%
per annum on the unpaid amount and it was also open to
the appellant to impose further amount of penalty and to
resume possession of the booth.
98 I Lawteller I February 2015
for filing the suit for specific performance.
TTTTTTT
The plaintiff did not allege that the defendant is
threatening to alienate or transfer the property to a
third party in order to frustrate the agreement.
TTTTTTT
The conclusion arrived at by the High Court that the
suit is barred under Order 2 Rule 2 CPC cannot be
sustained in law.
TTTTTTT
Authorities relied upon :1980 (1) SCC 290, 1977 (2) SCC
288, AIR 1970 SC 1059, 1964 (7) SCR 831,AIR (36) 1949
Privy Council 78.
Reference : Supreme Court. Inbasegaran and another
v. S. Natarajan (Dead) thr. Lrs., civil appeal nos. 4215-
4216 of 2007.
—————
It is an admitted fact that the respondent committed
several irregularities in making payment of the remaining
amount. As he did not pay the remaining installments,
he was called upon to pay the same along with interest
@ 18% per annum, compounded quarterly . In the
aforestated circumstances, the respondent had filed a
suit challenging the validity of the action of the
appellant of charging 18% compound interest and
resumption of the booth.
It was mainly contended in the suit filed by the
respondent that it was not open to the appellant to
charge 18% compound interest. According to the
respondent, the appellant could have charged only 10%
interest on the delayed payments.
After considering relevant evidence, the trial court had
decreed the suit, especially on the ground that it was not
open to the appellant to charge 18% compound interest.
Being aggrieved by the final outcome of the suit, the
appellant had filed first appeal, but the same had been
dismissed.
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In the aforestated circumstances, the appellant had filed
Regular Second Appeal No. 790 of 2008 before the High
Court.
After considering the facts and submissions made by
the learned counsel, the High Court dismissed the
second appeal by observing that the appellant was
entitled to charge only 10% interest and not 18% interest
compounded quarterly, as demanded by the appellant.
Against the judgement of the High Court special leave
petition was filed. The Supreme Court accepted the
appeal and set aside the order of the High Court passed
by the courts below.
T he operative part of the judgement read as under :
It is an admitted fact that the respondent did not make
payment of the unpaid installments and also that the
appellant has a right to resume possession of the booth
in the event of non-payment of the auction price of the
booth. The auction had taken place in September, 1988.
The balance amount of Rs. 3 lakh was to be paid in ten
half-yearly installments. Hence the entire amount ought
to have been paid within five years thereafter i.e. by the
end of 1993.
TTTTTTT
CANCELLATION OF PROMOTION ORDER UPHELD
R AMANAND PANDEY (THE RESPONDENT) WAS
EMPLOYED IN THE Agriculture Department of the
State of Madhya Pradesh, i.e. appellant no. 1 herein.
Since 1990 he was posted in District Bhind. In the year
2005, when he was working as Rural Agricultural
Extension Officer (RAEO), his turn matured for
consideration of his case for promotion to the next post,
i.e. ADO. He was considered by the Departmental
Promotion Committee for promotion as ADO which
adjudged him fit for promotion to the said post. Based
on the recommendation of the Departmental Promotion
Committee, the competent authority passed orders dated
December 23, 2005 giving him promotion asADO. In para
3 of the promotion order there was a stipulation to the
effect that the Deputy Director of the concerned State
District/Division, where the promoted employee was
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SERVICE
Though sufficient opportunities were given to the
respondent to make payment of the price, the respondent
has not paid the same. Hence, in our opinion, the
Courts below had become more lenient than necessary
towards the respondent by permitting him to retain
possession and make payment along with 10% interest
on the amount due and payable by him.
TTTTTTT
Upon looking at the overall facts, in our opinion, it
would not be proper to grant any further
accommodation to the respondent, who has admittedly
not paid the amount due and therefore, we allow the
appeal by quashing and setting aside the orders passed
by the courts below. It would be open to the appellant
to take possession of the booth in question in
accordance with law.
TTTTTTT
Reference : Supreme Court. HUDA & Anr. v. Kedar
Nath, civil appeal no. 9951 of 2014 (from the Judgement
and Order dated 10.12.2009 of the High Court of Punjab
and Haryana at Chandigarh in Regular Second Appeal
No. 790 of 2008).
—————
working, had to examine as to whether any departmental
inquiry or prosecution was pending against such an
employee or whether he was facing suspension.
Instruction was given to the Deputy Director of the
District/Division to the effect that in case any such
departmental inquiry or prosecution was pending which
would affect the promotion, then the promotion order
was to be treated as cancelled and the concerned
employee was not to be communicated the promotion
order. In such cases, after decision of the departmental
inquiry or after the completion of the period of
punishment, reconsideration of the case for promotion
was to be made.
The promotion order dated December 23, 2005 of the
respondent also contained a stipulation that on
promotion he was transferred from the office of Bhind
February 2015 I Lawteller I 99
SERVICE
to Sagar and he was supposed to join the promoted post
of ADO in the Agriculture Department in District Sagar.
After receiving the aforesaid promotion order , the
respondent submitted representation dated August 14,
2006 to the Deputy Director stating that a complaint
regarding disciplinary proceeding was pending against
him and till the said complaint is decided, he was willing
to go on leave. It would be relevant to reproduce text of
the said representation, which is to the following effect:
It is to intimate that the plaintiff has been
discharged from duty on 6.7.2006, which was
post of Agriculture Development Officer. Since
it was known by the reliable information on
8.7.2006 that the farmers have moved complaint
as to departmental inquiry against me before the
Collector. I shall continue to work on the post
of Agriculture Development Officer until the
inquiry is disposed of. I myself am ready to take
earned leave from the aforesaid date 6.7.2006 to
upniyokti date. The promotion order in original
of Directorate, Agriculture Planning is sent back
to you.
Therefore, it is requested that my application
should be taken into account.
On the receipt of the said representation, appellant No.
2 passed orders dated November 25, 2006 cancelling the
earlier order of promotion. This order reads as under:
The appointment of Shri Ramanand Pandey,
Rural Agricultural Development Officer, Office
of the Deputy Director, Agriculture Bhind
placed on Serial No. 39 of Directorate,
Agriculture Order No.A-2/LG/Pro./R/Est./11-05/
6166, Bhopal dated 23.12.05 on the post of
Agriculture Development Officer is hereby
cancelled until the next order.
After receiving the aforesaid order, the respondent did
not react thereto by making any representation to the
authorities or questioning the validity of the said order
by approaching some judicial forum. Instead, almost two
years after the passing of aforesaid cancellation order,
on October 24, 2008, the respondent filed the writ petition
100 I Lawteller I February 2015
before the High Court challenging the order canceling
his promotion. This writ petition was contested by the
appellants by filing the counter affidavit. After hearing
both the parties, the learned Single Judge allowed the
writ petition and quashed the cancellation order with the
direction to the appellants to promote the respondent
from the date he was promoted vide promotion order
dated December 23, 2005. The sole reason which
prevailed with the learned Single Judge in allowing the
petition is that the respondent was not facing any
disciplinary action or criminal case at the time when the
promotion order was issued in his case. The Court
noted that even in those cases where disciplinary
proceeding or criminal case is pending, the employee is
still to be considered for promotion and only course
open for the Department is to keep the result in a sealed
cover. In the instant case as there was no such
departmental proceeding or criminal prosecution
pending against the respondent, there was no reason to
revoke his promotion. In a short order passed by the
learned Single Judge, the aforesaid reason given in
support can be traced to paragraphs 4 and 5 of the said
order. We reproduce hereunder these paragraphs which
would reflect the mind of the Court in allowing the writ
petition:
4. It is settled in law that right of consideration
for promotion is law statutory as well as
constitutional/fundamental right from Article 14
and 16 of the Constitution of India. The said
right cannot be curtailed even in case employee
is facing disciplinary action or criminal case. In
that case also the employee is required to be
considered but his fate is to be kept in the
sealed cover.
5. In (sic) (Union of India v. K.V. Jankiraman),
the Apex Court held that the sealed cover
procedure can also be resorted to only in the
event a charge sheet in a disciplinary
proceeding and a challan in a criminal case is
issued/filed. In the present case, the
respondents are not in a position to
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demonstrate that on the date of consideration
of petitioner for promotion and issuance of
order Annexure P-2, the petitioner was either
facing disciplinary action or criminal case.
Needless to mention that respondent
department is custodian of the entire record
including service record of the petitioner. In this
view of the matter, merely because petitioner
has made a bald statement in Annexure R-1, it
was not sufficient to cancel the petitioner's
promotion order. In absence of any material to
show that petitioner was facing a disciplinary
action or criminal case, the order Annexure P-1
cannot be upheld. There is no other justifiable
reason assigned in the return for canceling the
said order.
The appellants herein preferred writ appeal against this
order and the Division Bench has dismissed the appeal
on the same ground, namely, there was no material on
record to show that the respondent was facing any
disciplinary proceeding or criminal case on the date of
consideration of his name for promotion. The Division
Bench, thus, observed that the learned Single Judge had
not committed any illegality while passing the order
impugned.
Against the judgement of the High Court special leave
petition was filed. The Supreme Court accepted the
appeal, the writ petition filed by the respondent was
dismissed.
The operative part of the judgement read as under :
The entire approach of the High Court is erroneous in
dealing with the matter at hand. In fact, the issue
focused and discussed, on the basis of which
cancellation order dated November 25, 2006 is passed,
itself is extraneous. From the conspectus of factual
matrix taken note of above, it becomes clear that insofar
as the Department is concerned, the respondent was duly
considered for promotion, nay, he was in fact promoted
to the post of ADO vide orders dated December 23, 2005
as he was found fit for promotion. It is, thus, not that
kind of a case where the respondent was either not
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SERVICE
considered for promotion or the recommendation of the
Departmental Promotion Committee was kept in a
sealed cover.
TTTTTTT
Holding the cancellation order to be bad in law on the
ground that the respondent was not facing any
disciplinary action or criminal case on the date of his
consideration for promotion, was totally off the mark.
TTTTTTT
Promotion order was in fact duly served upon the
respondent. It was even acted upon by the appellant as
the respondent was even relieved from his duty from
Bhind Office on July 6, 2006 with instructions to report
at Sagar Office. Curiously, it is the respondent who made
the representation dated August 14, 2006 stating
therein that some farmers had moved a complaint
against him and since that complaint was pending, till
the same is finalized, he was ready to take earned leave
until the inquiry is disposed of.
TTTTTTT
The authorities took the view that the respondent was
not interested to join the promotion post at Sagar and,
therefore, cancelled the pr omotion order. The
cancellation did not come because of the reason of
pendency of any alleged departmental inquiry against
the respondent. In any case the respondent was not
interested in joining the duties at Sagar and canceling
the promotion for that reason cannot be treated as
illegal or arbitrary in the facts of the present case.
TTTTTTT
It is the respondent himself who is responsible for
cancellation of the promotion order as he did not join
the promoted post, the impugned order of the High
Court is clearly erroneous and against the law.
TTTTTTT
Reference : Supreme Court. State of Madhya Pradesh
& Ors. v. Ramanant Pandey, civil appeal no. 9486 of 2014
(from the Judgement and Order dated 10.7.2012 of the
High Court of Madhya Pradesh at Gwalior in W.A. No.
378 of 2012).
—————
February 2015 I Lawteller I 101
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