Tag: #recentjudgement

-Report by Ankit Hinnariya

In a recent ruling, the High Court of Delhi granted anticipatory bail to Faheem Ahmed and Danish Khan, the petitioners in a case registered under Sections 323/354/354B/376/34 of the Indian Penal Code (IPC) at Laxmi Nagar Police Station. The judgment, delivered by Hon’ble Mr. Justice Rajnish Bhatnagar, took into account the arguments presented by both the petitioners and the State. This article provides an overview of the case, the contentions raised by the parties involved, and the court’s decision.

Facts

The case at hand involves an FIR registered at Laxmi Nagar Police Station in Delhi under Sections 323/354/354B/376/34 of the Indian Penal Code (IPC).

The FIR was lodged against Faheem Ahmed and Danish Khan, the petitioners, on the basis of allegations made by the complainant. The FIR accused the petitioners of offences including assault, molestation, and rape.

The initial PCR call made by the complainant on September 9, 2022, alleged molestation by the petitioners. The following day, another PCR call was made, claiming that the petitioners had threatened the complainant and intended to rape her along with their friends. 

Subsequently, at 2:04 PM on the same day, another PCR call reiterated these allegations.

It was only on September 26, 2022, when the written complaint was forwarded to the concerned Deputy Commissioner of Police (DCP) and Assistant Commissioner of Police (ACP), that the allegations of rape were levelled against the petitioners. Prior to this, the charges primarily revolved around molestation.

The medical examination of the complainant conducted on September 9, 2022, did not reveal any signs of rape. The observations made by the doctor from Hedgewar Hospital suggested physical assault rather than rape.

On October 19, 2022, another PCR call was made by the complainant, alleging molestation once again by the petitioners.

These facts form the basis of the case, indicating the sequence of events leading to the filing of the FIR and the subsequent allegations against the petitioners. The court took into consideration these facts while evaluating the merits of the case and deciding on the grant of anticipatory bail to the petitioners.

Petitioner’s Contention

In their petition for anticipatory bail, the petitioners, Faheem Ahmed and Danish Khan, presented several contentions to support their innocence and request protection from arrest. These contentions were put forth by their advocate, Ms. ParulAgarwal, during the court proceedings.

The petitioner argued that the allegations levelled against them in the FIR were false and frivolous. They claimed that there was an ongoing family dispute and various civil suits related to property matters, which might have prompted the filing of the FIR as an attempt to harm their reputation and grab their share of the property.

The petitioner highlighted inconsistencies in the statements of the complainant, specifically regarding the charges under Section 376 of the IPC (rape). They contended that the allegations of rape were added later, after the complainant’s statement was recorded under Section 164 of the Code of Criminal Procedure (Cr.P.C.), suggesting that these additional charges were an afterthought.

The petitioners’ counsel argued that custodial interrogation of the petitioners was unnecessary. They emphasized that the petitioners were willing to cooperate with the investigation and were ready to join it whenever required by the investigating officer. The petitioner further stated that no recovery was to bemade from the petitioners, indicating that their presence in custody was not warranted.

The petitioner asserted that there were no grounds to believe that the petitioners would abscond or tamper with evidence. They assured the court that their clients had no intention of evading the law and would actively participate in the proceedings.

These contentions were presented to establish the petitioners’ innocence and argue for the grant of anticipatory bail, ensuring their protection from arrest pending the investigation.

Respondent’s Contention

The respondents, represented by Mr. Amit Ahlawat, Assistant Public Prosecutor, He was accompanied by SI Sanyukta from the Laxmi Nagar Police Station. Additionally, Mr. Ankit Mehta, Mr. Varun Singh, and Mr. Sanjay Kumar served as advocates representing the second respondent in the case, and presented their contentions opposing the grant of anticipatory bail to the petitioners, Faheem Ahmed and Danish Khan.

The prosecution argued that the allegations against the petitioners were grave and serious in nature. They emphasized the severity of the charges under Sections 323/354/354B/376/34 of the IPC. The respondents contended that considering the seriousness of the offences, the petitioners should not be granted anticipatory bail.

The respondents highlighted that the complainant had submitted a detailed complaint to the police, providing a comprehensive account of the allegations made against the petitioners. They also pointed out that the complainant’s statement under Section 164 of the Cr.P.C. further supported the charges brought against the petitioners.

The complainant opposed the grant of anticipatory bail to the petitioners. The respondents argued that the complainant’s objection was based on the serious nature of the allegations and the need for a thorough investigation into the matter.

While the respondents focused on the gravity of the charges and the complainant’s detailed complaint, they did not contest the petitioners’ contention that custodial interrogation was unnecessary or that no recovery was to be made from the petitioners. Instead, their primary contention revolved around the seriousness of the allegations and the complainant’s opposition to the grant of anticipatory bail.

JUDGMENT 

Justice Rajnish Bhatnagar carefully considered the arguments presented and examined the facts of the case. The court noted that the initial PCR calls made by the complainant only alleged molestation and the charges of rape were added at a later stage. Additionally, the medical examination conducted on the complainant did not indicate signs of rape but suggested physical assault.

Referring to relevant judgments of the Hon’ble Supreme Court, Justice Bhatnagar emphasized that the severity of the accusations alone should not be the sole basis for denying anticipatory bail. The court emphasized the presumption of innocence and the importance of an individual’s liberty. Taking into account the overall facts and circumstances of the case, the court allowed the bail applications and ordered that if arrested, the petitioners be released on bail upon furnishing a personal bond of Rs. 25,000 each with one surety to the satisfaction of the Arresting Officer/SHO concerned.

READ FULL JUDGEMENT: https://bit.ly/3Bkc33a

-Report by Harshita Kaul

The Arbitration and Conciliation Act, 1996 was enacted with the object of resolving disputes within a certain time framework which will promote confidence among the individuals who are opting for this Alternative Dispute Resolution Mechanism.

Therefore, the view of the Supreme Court was in the right direction that the applications filed must be decided within a specific time period as provided in the Act to foster and protect the very idea for which the Act was enacted in the first place.

Facts

On 06.10.2010, M/s Shree Vishnu Constructions, who was the applicant in this case entered into a Contract Agreement with Engineer in Chief, Military Engineering Services and others, who were the respondents for the construction of two blocks of Admin-cum-Technical accommodation with double storey in RCC framed structure with PCC solid block masonry along with connected services.

During this period, certain modifications were requested by the Respondents, and accordingly, the Applicant carried out the required modifications as per the instructions. The dispute arose when the Applicant requested for the release of payment and even after making persistent requests, the Respondent kept postponing the same as according to them the items used for modifications were not scheduled items.

When the dispute was not been able to settle amicably, the Applicant on 30.03.2013 issued a notice to the Respondents for appointment of the Arbitrator within 30 days as per the conditions 70 and 71 of IAFW-2249 under the contract but the Respondents did not give any reply to the notice. Due to this unresolved issue, an Arbitration Application was filed by the Applicant under Section 11(5) of the Arbitration and Conciliation Act, 1996 before the High Court for the State of Telangana seeking to appoint an Arbitrator for resolution of the dispute between the parties.

On 30.06.2020, the Application filed under Section 11(5) of the Act was dismissed by the High Court on the basis that in the case no Arbitral Dispute exists as satisfaction and accord was established.

Aggrieved by the impugned final judgment and order passed by the High Court, for the appointment of an Arbitrator, a Special Leave Petition was filed by the Applicant before the Hon’ble Supreme Court of India.

Judgement

Pursuant to the earlier orders, the respective High Courts have sent the statements regarding the pending applications under Section 11(6) of the Arbitration and Conciliation Act, pending in the respective High Courts. It is seen that the number of applications under Sections 11(5) and 11(6) of the Arbitration Act are pending for more than one year. In many High Courts, applications for appointment of the arbitrator(s) are pending for more than four to five years. Even, in the statement of the High Court of Rajasthan at Jodhpur, many applications are pending, which are found to be defective. Some of the defective applications are pending since 2016 onwards. The pendency of a large number of applications under Sections 11(5) and 11(6) of the Arbitration Act, shows a very sorry state of affairs.

The arbitration proceedings under the Arbitration and Conciliation Act are said to be a part of the Alternative Dispute Resolution System. Having found that it takes a number of years in deciding and disposing of suits by the civil courts for a variety of reasons and with a view to see that Commercial disputes are decided and disposed of and resolved at the earliest, the Arbitration and Conciliation Act has been enacted and hence, the Arbitration proceedings have been accepted as an effective Alternative Dispute Resolution Mechanism. Therefore, if the arbitrators are not appointed at the earliest and the applications under Sections 11(5) and 11(6) of the Arbitration Act are kept pending for a number of years, it will defeat the object and purpose of the enactment of the Arbitration Act and it may lose the significance of an effective Alternative Dispute Resolution Mechanism. If the Commercial disputes are not resolved at the earliest, not only it would affect the commercial relations between the parties but it would also affect the economy of the country. It may affect the ease of doing business in the country. If the country has to compete with global business, confidence has to be fostered that in our country commercial disputes are resolved at the earliest and it does not take a number of years in resolving such Commercial disputes.

Even the amended Arbitration Act as well as the Commercial Courts Act mandate that the Commercial disputes are to be decided and disposed of within a period of one year. Further, the Arbitrators are mandated to declare the award within a period of one year. Therefore, if the applications under Sections 11(5) and 11(6) of the Arbitration Act for the appointment of arbitrators are kept pending for a number of years, it would defeat the object and purpose of the enactment of the Arbitration and Conciliation Act as well as the Commercial Courts Act. The litigant may lose faith in the justice delivery system, which may ultimately affect not only the rule of law but commerce and business in the country. Therefore, the applications under Sections 11(5) and 11(6) of the Arbitration Act and other applications, either for substitution and/or change of the Arbitrator have to be decided and disposed of at the earliest.

In that view of the matter, we request all the Chief Justices of the respective High Courts to ensure that all pending applications under Sections 11(5) and 11(6) of the Arbitration Act and/or any other applications either for substitution of arbitrator and/or change of arbitrator, which are pending for more than one year from the date of filing, must be decided within six months from today. The Registrar General(s) of the respective High Courts are directed to submit the compliance report on completion six months from today. All endeavours shall be made by the respective High Courts to decide and dispose of the applications under Sections 11(5) and 11(6) of the Arbitration Act and/or any other like application at the earliest and preferably within a period of six months from the date of filing of the applications.

Conclusion

A key step towards strengthening the process of appointing arbitrators is to amend the Act in light of the Supreme Court’s direction in Shree Vishnu Constructions and prescribe a time limit for the Courts’ appointment of arbitrators. Second, the government should notify the 2019 Amendment at the earliest by establishing arbitral institutions and providing a procedure for the appointment of arbitrators by such institutions. Further, it could adopt international best practices which allow for the quick and timely appointment of arbitrators while also involving the disputing parties in the process of constituting an arbitral tribunal. In the meantime, the respective High Court could, in its first hearing, designate an existing arbitral institution to appoint arbitrators as per institutional rules. These measures will not only help address the issue of the pendency of arbitration applications but also streamline the entire process in the long term.

Arbitration provides a sense of confidence to the parties to resolve their dispute but the delay in disposing the case not only dilutes the purpose of the Act, but the litigants may also lose faith in the justice delivery system. It will raise the question of Arbitration as an effective mechanism to resolve the dispute and will also affect the ease of doing business as well as the economy of the country.

READ FULL JUDGEMENT: https://bit.ly/42tHQuH

-Report by Tushar Yadav

Applications of 299 organisers were rejected by the Ministry of MinorityAffairs out of 810 applications to organize Haj 2023, in the case of AL HATIM TOURS AND TRAVELS PVT. LTD. Vs UNION OF INDIA.

Facts:

The judgement was given by a single judge bench of Delhi High Court, by Justice Pratibha M. Singh. These petitions were filed by Haj Group Organisers (HGOs) for Haj 2023, challenging the public notice dated 5th May 2023 issued by the Ministry of Minority Affairs (Haj Division). By way of the impugned public notice, the Ministry has declared the eligible and ineligible HGOs for Haj 2023. The Ministry of Urban Affairs invited a total of 810 applications for Haj 2023, under 2 categories (244 in Category-1 and 566 in Category-2) out of which, 171 HGOs in Category-1 and 340 HGOs in Category-2 have been found eligible for registration for Haj 2023. The rest of the 280 HGOs were not found eligible for Haj 2023.

Petitioner’s Contention:

The grievance of the petitioners is that they fall on the list of 280 HGOs who have been rendered ineligible as per the above public notice by the Ministry of Minority Affairs. The issue raised by the petitioners is that the reasons for declaring them as ineligible have not been communicated to thePetitioners.

Thus, though the above public notice gives an opportunity to the Petitioners tosubmit a representation by the due date of 8th May 2023 (5:00 pm), since the petitioners are not even aware of the reasons which have rendered themineligible, no representations can be made.

Respondent’s Contention:

The Ministry of Minority Affairs through Mr. S.S Verma, Deputy Secretarysubmitted that the reasons for all of the Petitioners, who have been renderedineligible, are being prepared and shall be served upon all the 280 HGOs latestby tomorrow i.e., 10th May 2023, such HGOs are free to file their

representations within two working days. The representations would bedecided within one week and the allotment of quota would not be exhausted prior to the decision on the representations.

Judgement:

After hearing from both sides, the court came to the conclusion that the totalnumber of visas that are to be allotted to the HGOs this year is 35,005 in whicheach Category-1 and category-2 operators are entitled to 60 visas and 50 visasrespectively. Thus, insofar as the eligible HGOs are concerned, a total of 10,260and 17,000 would be exhausted. There would be a large number of remainingvisas which would have to be dealt with in accordance with the HGO Policy 2023 of the Ministry.

Considering the fact that the reasons for declaring the petitioners have not beencommunicated to the petitioners, the opportunity to make representations by 8thMay 2023 at 5 PM is of no account now, as there is no basis for filing arepresentation. Accordingly, the new directions are issued under which theMinistry will communicate the reasons for ineligibility to the Petitioners on orbefore 10th May 2023 by 6:00 pm. and the petitioners who are aggrieved by thereasons which are communicated to them are free to make their respectiverepresentations to the Ministry by 12th May 2023 midnight, as also remove deficiencies, through the e-mail address mentioned in the public notice. Therepresentations shall be decided by the Ministry and shall be communicated tothe Petitioners through email by 6 pm on 19th May 2023. In case any of the Petitioners are found eligible, their candidature shall be considered for the allotment of the remaining visas in accordance with the Ministry’s Policy.

Judgement on-09/05/23

READ FULL JUDGEMENT: https://bit.ly/41tE2bi

-Report by Sava Vishnu Vardhan

In the case of Nagarathinam V. State Through The Inspector Of Police | Criminal Appeal No. 1389 Of 2023, the Hon’ble Supreme Court of India overturned the order of the State of Tamil Nadu rejecting the request for the Appellant’s premature release in the case of murder. 

FACTS OF THE CASE: 

Due to repeated threats from her spouse, Suresh, the mother, the appellant, chose to kill herself along with her children. She purchased pesticides intended for plants and, in accordance with her determination to pursue this line of action, she administered poison to her two children, Ramar and Laxmanan, who are identical twins. Then, the appellant’s niece pushed the pesticide down when she put it in a tumbler to drink it herself. Unfortunately, the two kids were pronounced dead when they got to the hospital. The appellant’s niece forced it down just as she was going to eat it herself.

Upon conviction of the appellant under Sections 302 and 309 of the IPC, Additional District and Sessions Judge (Fast Track Court), Dindigul sentenced her to life in jail.

Following a trial, the appellant was found guilty of violating Sections 302 and 309 of the IPC by the learned Additional District and Sessions Judge (Fast Track Court), Dindigul by Judgement and Order in Sessions Case No. 92 of 2004 dated 10.01.2005 and sentenced to life in jail. The Appellant requested an early release after serving nearly 20 years in jail. However, in light of the heinous and savage character of the offence (s) perpetrated by her, the State of Tamil Nadu rejected the State Level Committee’s proposal in G.O. (D) No. 1127, dated 24.09.2019.

APPELLANT‘S CONTENTIONS: 

Even if it is considered that the appellant attempted to poison herself and her children in order to end their lives, learned senior counsel for the appellant argued that this was only possible as a result of an unexpected provocation. Comes under IPC Section 300’s Exception 1. In addition, the fact that the appellant committed family suicide alongside her two boys is an extenuating circumstance protected by Section 300 of the IPC’s Exception 1. Additionally, if the mother had survived or managed to flee while the children perished, it would be illegal under Section 304 Part I of the IPC. In this regard, the Madras High Court’s learned Division Benches’ rulings in Guruswami Pillai v. State, 1991 (1) MWN (Cr.) 153 and Suyambukkani v. State, 1989 SCC OnLine Mad 481 were cited.

RESPONDENT’S CONTENTIONS: 

It was strongly maintained by knowledgeable counsel for the lone Respondent-State opposing the petitions that the act(s) perpetrated by the Appellant were cruel and violent as young children were given poison and put to death, hence it was only fair that the State had rejected the Appellant’s early release. It was argued that the High Court maintained the conviction under Section 302 of the IPC since both the Trial Court and the High Court carefully considered every aspect of the 6 issues.

JUDGEMENT:

The Judgement was delivered by Ahsanuddin Amanullah, J. the hon’ble Supreme Courtdetermined that the scenarios presented by the appellant are not protected by the exceptions listed under Section 300 of the IPC given the facts and circumstances of the current instance. Even more so when the people who were fed the pesticide administered by the appellant and perished from it did not provide their consent. In Guruswami Pillai v. State of Madras, the father attempted suicide as well as killing his little daughter by slicing her throat with a knife. It was revealed during the trial that the father and daughter had decided to take their own lives together. Thus, the High Court in that case determined that it was prudent to provide a benefit by converting the conviction from Section 302, IPC to one under Section 304 Part I, IPC. This was done in light of the background information, as well as the parties’ mental and social conditions, financial situation, and the surrounding circumstances. The appellant has already endured the brutal hand of fate, according to the supreme court. The Court further pointed out that it can’t only be said that the act was “cruel and brutal” because the appellant tried to kill herself but was saved just in time by her niece. She had already served nearly 20 years in prison, to add to it. This prompted the Bench to overturn the government injunction and order her release.

The order of the State of Tamil Nadu, as stated in G.O. (D) No. 1127 dated 24.09.2019, issued by the Home (Prison-IV) Department and signed by the Additional Chief Secretary to Government, rejecting the request for the Appellant’s early release is reversed for the aforementioned reasons.

READ FULL JUDGEMENT: https://bit.ly/3BejUPP

-Report by Gopal Kumar

This case is related to Judge’s power to put questions or order production to discover or obtain proper proof of relevant fact under section 165 of the Indian Evidence Act. 

FACTS

In this case, the appellant-accused along with the other co-accused were charged with kidnapping and murder of a person in the year 2000. The Trial Court convicted both the accused persons for offences under Section 302, Section 364, Section 392, Section 394, Section 201 and Section 34 of IPC and awarded a life sentence under Section 302 IPC, and the remaining accused was convictedlesser sentence, vide order dated July 11, 2003. Further, the appellant filed the case to   The Punjab and Haryana High Court which dismissed the file and upheld the conviction and sentence of the Trial Court vide order dated May 31, 2017. Hence, the appellant-accused filed the appeal before the Supreme Court.

In this case, the apex court found that the case of the prosecution is entirely based on circumstantial evidence and the ‘evidence’ of last seen and the “discoveries” made from the information given by the appellant.

The Court further observed that the case of the prosecution rests on two circumstantial pieces of evidence

1. The disclosure is given in police custody and the discovery is on its basis.

2. The evidence of last seen in the form of PW-10 (the neighbour of the complainant).

The court rightly points out that in the case of circumstantial evidence motive plays a significant role. The prosecution case is that the two accused killed the deceased only to steal his tractor. The prosecution case is that the deceased was kidnapped and murdered by the two accused, for his tractor which they had robbed from the deceased, after putting him to death. The Court pointed out that the facts that led to certain discoveries were already known to the police in the earlier discovery made by the co-accused. The Court further noted that the discoveries which were made on the pointing out of co-accused cannot be read against the present appellant.

According to section 27 of the Indian Evidence Act “If the disclosure has been made by the accused to the police while he was in their custody and such a disclosure leads to the discovery of a fact then that discovery is liable to be read as evidence against the accused. A fact discovered in a piece of information supplied by the accused in his disclosure statement is a relevant fact and that is only admissible in evidence if something new is discovered or recovered from the accused which was not within the knowledge of the police before recording the disclosure statement of the accused.

On the evidence of ‘last seen’ the Court noted:

“In this case, even if we take the time between the last seen and the approximate time of death as per the postmortem, which would go beyond 48 hours preceding the time of post-mortem the time of death can be stretched to the morning of May 9, 2000, which still begs an explanation from the prosecution as to the time gap, as the deceased was last seen with the two accused on 08.05.2000 at 7:00 P.M.” The Court further noted that the evidence of last seen itself is on a weak footing, considering the long gap of time between last seen by PW-10 and the time of death of the deceased, Section 106 of the Evidence Act, 1872 would not be applicable to facts and the circumstances of the present case. When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

The court said “In order to establish a charge of guilt on the accused, the chain of evidence must be completed and the chain must point out to one and only one conclusion, which is that it is only the accused who have committed the crime and none else. 

RATIO DECIDENDI

The Court held that the evidence placed by the prosecution, in this case, does not pass muster the standard required in a case of circumstantial evidence.

JUDGEMENT

The judgement given by the division bench of Justice Sudhanshu Dhulia and Justice Sanjay Kumar noted:

In the present case, the prosecution has not been able to prove its case beyond a reasonable doubt. The evidence of last seen only leads up to a point and no further. It fails to link it further to make a complete chain. All we have here is the evidence of last seen, which as we have seen loses much of its weight under the circumstances of the case, due to the long duration of time between last seen and the possible time of death. The Court set aside the conviction of a murder accused on the ground that the evidence last seen on which the conviction was based, failed to make a complete chain of circumstantial evidence. 

READ FULL JUDGEMENT: https://bit.ly/44Lb5KM

-Report by Jay Prakash Chandravanshi

This case pertains to the appointment of a Peon on the sympathetic ground after his father died in harness. The petitioner challenged his termination by Maharashtra state electricity Distribution Company Limited (MSEDCL). The service conditions of the employees are regulated by the Classification and Recruitment Regulations, 2005 (2005 Regulations), Clause 16 of the 2005 Regulations.

FACTS 

The petitioner was appointed as a peon after the death of his father on compassionate grounds.  The father of the petitioner worked as a lineman with respondent no. 1 – Maharashtra State Electricity Distribution Company Limited (MSEDCL).  There was a certain condition which stated that the employee must fill out the character and antecedents verification form contained with the appointment order while reporting to work, and if it shows negative results, the employee will be fired. It was clear that the petitioner does not fulfil information specified in column 11 and the police report reveals that the petitioner is charged with a crime under various sections of the Indian Penal Code and Section 3(1)(r)(s) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 [Atrocities Act]. The respondent issued a show cause notice asking him why he should not be terminated and the petitioner reply the notice that he was falsely framed and had a limited role. The employer was not satisfied with the response provided and terminated the service of the employee.

PETITIONER’S CONTENTION

The petitioner’s position is limited to intervening in the fight, rather than with the righteous aim of stopping the fight.Taking reference from Avtar Singh Vs. Union of India and others, emphasized the nature of duties and sensitivity of position, the impact of suppression on suitability and post peon not per se sensitive.

RESPONDENT’S CONTENTION

If a criminal case was pending against the respondent and the facts were hidden, the employer would have to ignore such defaults and deficiencies, but a non-disclosure of material information could be a ground for dismissal.

JUDGEMENT

The high court held that there are exceptional circumstances that could have been taken into account by the employer in making the decision to terminate employment. We would make a concerted effort not to due to the sequential nature ofour discussion, we will direct the employer to reconsider the issue from anew with the observation based on Avtar Singh. We are setting aside the order of termination.

READ FULL JUDGEMENT: https://bit.ly/44smYoP

-Report by Himanshi Chauhan

In the present case of Vineet Kumar vs. UOI & Ors, a petition was filed by the petitioner seeking the quashing of an order whereby respondents have not protected his seniority, whereby his request for securing seniority was rejected and whereby DIG has rejected the petitioner’s request.

FACTUAL BACKGROUND:

The petitioner had applied for the post of Sub Inspector in the Central Reserve Police Force (CRPF). He was selected in the recruitment process and was offered an appointment letter dated 30.10.2009. He joined the services on an even date. He was posted at Bhubaneshwar and after completion of his training; he joined his place of posting at 39 Bn. Narayanpur, Chhattisgarh.

The respondents had asked for the petitioner’s willingness to undergo a promotional course for promotion to the rank of Inspector. The petitioner had his willingness to join the pre-promotional course but he fell ill with high fever on 19.07.2013. He claims to have been diagnosed with “cerebral malaria” and was admitted to the MI room of the unit. Further, he was shifted to MMI Hospital, Raipur, where it was identified that he was suffering from “Klebsiella Pneumonia with Hepatitis-C”. He was discharged from the hospital on 02.08.2013. However, according to him, the respondents had advised him to medical rest for 20 days and so, he could not participate in the pre-promotional course.

PETITIONER’S CONTENTIONS:

➢ The learned counsel for the petitioner submitted that the respondents protected the petitioner’s chance for the course but not for his seniority. So, he submitted a representation to the Commandant (CRPF Chhattisgarh) for protection of his seniority which was forwarded to the DIGP, Hyderabad. In the letter, the Commandant mentioned that the petitioner’s case was genuine and he was willing to attend the course but was unable due to illness. The DIG further referred the case of the petitioner to the IG which was rejected stating that chances to attend promotional courses are to be protected. However, seniority is not required to be protected.

➢ The petitioner again sent a representation to DG, CRPF and thereafter, another representation to IGP-CRPF requesting to secure his seniority. It was contended that even Commandant-39 Bn CRPF also prayed to DIG for the protection of the seniority of the petitioner.

➢ The learned counsel further submitted that the respondents have erroneously rejected the petitioner’s representation without noticing the fact that he was posted in a malaria-affected area and his illness was precipitated by the same. So, due to his medical condition only, he could not attend the course and was denied promotion and seniority.

➢ The learned counsel next provides for certain cases wherein a candidate is unable to attend a course due to medical reasons, in such cases a residual power is vested with the DG-CRPF to approve the same.

➢ Further, the counsel submitted that respondents have themselves notified that the personnel wounded or injured while on active Government duty in India or abroad, will be eligible for promotions.

➢ The learned counsel further submitted that the juniors of the petitioner have been promoted to the rank of Inspector but he has not yet been promoted. He contends that his loss of seniority is due to the malaria fever which he got during his service as he was posted in an area which was infected with mosquitoes, unhygienic working conditions and water.

➢ Hence, the rejection of the petitioner’s representation deserves to be set aside by this court.

RESPONDENT’S CONTENTIONS:

➢ The learned counsel for the respondent submitted that it is not disputed that the petitioner had fallen ill and was admitted to Unit Hospital and shifted to District Hospital, Narayanpur. Then he was referred to MMI Hospital, Raipur where he was diagnosed as a case of “Acute Febrile illness HCV Positive”. Thereafter, he was advised medical rest for 20 days due to hepatitis C.

➢ The learned counsel next submitted that it was intimated by the IGP that the petitioner has secured qualifying marks and directed his unit to attendIPC NO. 6 to be conducted at CTC Gwalior. Since the petitioner had been prescribed medical rest, he expressed his inability to attend the same.

➢ The learned counsel further submitted that the respondents have rightly rejected the petitioner’s different representations seeking seniority because as per medical documents, he was suffering from “Klebsiella Pneumonia with Hepatitis-C” whereas he seeks protection of chance and seniority on the ground that Narayanpur District of Chhattisgarh was declared a “malaria-prone area”. It has no relation with the disease actually suffered by him.

➢ The learned counsel next submitted that all the representations made by the petitioner are denied and it was stated that the petitioner was suffering from “Klebsiella Pneumonia with Hepatitis C”, which has nothing to do with malaria. There is no provision to consider personnel suffering from Hepatitis C to treat as attributable to the service conditions.

➢ The learned counsel also submitted that as per the Standing order if a candidate could not be sent for the course on administrative grounds, he will get another opportunity and his original seniority will be protected. Also, as per instructions contained in a letter dated 26.07.2022, the chance of personnel placed in LMC Shape-2 to Shape-4 to attend the promotional course is to be protected and their seniority is not required to be protected. In the present case, the petitioner was categorised as Shape-1 as per standing order and therefore, not eligible for any relaxation. The petitioner could not attend the course due to his illness and so, the IGP has rightly protected his case to attend the course but not seniority.

➢ Lastly, it was submitted that the impugned orders passed in respect of the petitioner are just and proper and need not be set aside by this court.

JUDGEMENT:

The Court opined that there is no dispute that the petitioner had tenderer his willingness to join the promotional course, however, unfortunately, he fell sick and remained hospitalised. Therefore, he could not participate in the said course. The respondents have not considered the case of the petitioner for promotion and seniority on the ground that he was not suffering from Malaria but Hepatitis C. But the Court observes that while making the above observations, the respondents have not considered the recommendations of the Commandant, 39 Bn written to the Dy. IG, Hyderabad, wherein it is admitted that the petitioner was deployed in a malaria-prone area like Narayanpur.

Thereby, the factum of the petitioner’s hospitalization and suffering from illness, attributable to his service conditions, is not disputed. Whether he was suffering from Malaria or Hepatitis-C is of no relevance. What is relevant is that the petitioner has suffered the agony of illness and treatment due to the conditions of his work.

Thus, the Court is of the opinion that the petitioner cannot be made to suffer mental agony to work below his juniors. Accordingly, orders passed by the respondents are hereby set aside. Directions were given to the respondents to pass necessary orders to re-fix the petitioner’s seniority in terms of merit for promotion to the rank of Inspector within six weeks.

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-Report by Arunima Jain

The Supreme Court on Monday, in the case of Essemm Logistics v. Darcl Logistics Limited& Anr., delved into the meaning and extent of Section 16 of the Carriers by Road Act, 2007read with the Order VII Rule 11 of the Civil Procedure Code (CPC). According to the court, no notice is required under Section 16 of the new Act for instituting any suit or legal proceedings, much less a counter-claim against the common carrier for recovering any loss other than the loss of or damage to the consignment.

FACTS

In the matter at hand, the appellant is a high-end carrier providing service, governed by theCarrier by Road Act, 2007. The first respondent had originally instituted a suit against theappellant for the acquisition of Rs.4,09,53,847/- with 18% interest until its realization,because the current appellant had failed to make payments due on 530 bills raised between November 14, 2011, and January 31, 2012. Accordingly, the first defendant/current appellant had filed a counterclaim of Rs. 13,03,00,000/- with 24% interest on the said amount till realization. This was majorly on three grounds:- Loss of business opportunity due to the diversification of cargo;- Loss of reputation;- Loss on account of idling of men, machines & overheads.

The present first respondent sought to dismiss the counterclaim of the first defendant on thegrounds that it was preferred without issuing the necessary notice, as mistakenly intended bySection 10 of the Carriers Act, 1865, but in fact by Section 16 of the new Act. The Court ofFirst Instance dismissed the plaint for failure to issue mandatory notice prior to thepresentation of the counter-claim, and the High Court upheld that decision. Accordingly, thefirst defendant has filed this appeal in the Supreme Court to allow the plea for a counterclaim.

JUDGEMENT

Upon giving due regard to the facts and law in the above-mentioned case, it is contended bythe Hon’ble Court that a simple reading of Section 16 of the new Carriage by Road Actindicates that it is only relevant in the event of a suit or legal procedure being institutedagainst a common carrier for any loss or damage to the consignment. The provision is inapplicable to any other type of loss or any suit or legal procedures brought to recover damages for loss of a different sort. In the court’s opinion, there was no violation of Section 16 and it was observed that the first courts have erred in their judgement by rejecting thecounterclaim under Order VII Rule 11 of the CPC as barred by Section 16 of the new Act. Hence, the impugned judgement and order have been repealed and the current appeal is allowed. The Court of first instance is directed to further allow the counterclaim.

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-Report by Sakshi Tanwar

The current petition for Letters of Administration has been filed by the mother [petitioner no.1], father [petitioner no.2], and brother [petitioner no.3] of the late Dr. Shruti Maitri,who died in Delhi on March 8, 2019. The LoA has been claimed in relation to properties.

FACTS

The second respondent is admittedly the deceased’s spouse, while respondents 3 and 4 arebodies formed to administer superannuation money in the Australian state of New SouthWales. According to the petitioners’ acknowledged case, the deceased married the secondrespondent in Delhi on December 3, 2017, in accordance with Hindu norms. According totheir claim, the deceased was injured on 02/03 February 2019 and travelled to India on 01March 2019 for necessary medical procedures and treatment. The petitioners also state thatthe deceased was admitted to a hospital on March 4, 2019, and underwent surgery onMarch 5, 2019. According to reports, the deceased developed a pulmonary embolism as aresult of post-operative complications on March 7, 2019, and died on March 8, 2019. The petition was based on an assumption that the first petitioner had been nominated as the beneficiary of the superannuation funds. In terms of an intimation dated 19 August 2019,the first petitioner was informed by respondent no. 3 of the proposed release of all monies standing to the credit of the superannuation fund of the deceased in favour of the secondrespondent.

APPEALANT’S CONTENTION

The petitioners maintained that because the deceased was an Indian citizen working inAustralia on a work permit, her inheritance would be administered under Indian law. Thepetitioners claimed in paragraph 35 of the current petition that the deceased had identifieda flat in Australia and, since she had not been given Permanent Resident status in thatcountry, the flat was purchased in the name of the second respondent. It is conceded thatthe flat was mortgaged and the instalments in respect thereof were paid out of the jointaccount maintained by the deceased and the second respondent. The petition for the grant of LoA was essentially based on the petitioners’ assertion that because the deceased and the second respondent purchased the properties in Australia together, with the formermaking substantial investments therein, the petitioners would be entitled to the grant of LoA by virtue of being the parents. Their claimed case was that the second respondent, thehusband,

is barred from pre-marriage and paternal assets. On 19 December 2019, the Court granted an injunction restraining the second respondent from either alienating or creating third-party interests in the immovable property in Australia or receiving superannuation funds standing to the credit of the investments made by the deceased. The Court also restrainedRespondent No. 3 from releasing any payments to either the second respondent or any third party.

RESPONDENT’S CONTENTION

The second respondent has filed objections to this petition, citing records kept by the FirstState Super Trustee Corporation, a body corporate established under the SuperannuationAdministration Act, 19965, as well as records kept by the State Super Financial ServicesAustralia Limited, to argue that the second respondent was the sole beneficiary of thesuperannuation funds. Reliance was also placed on the adjudicatory orders passed by theAustralian Financial Complaints Authority8 which too had recognized the right of thesecond respondent to be the sole beneficiary of all funds of the deceased held withrespondent no.3.

JUDGEMENT

The law, as it presently stands, does not envisage a parent who may have incurredexpenditure in the upbringing of a child being viewed as a creditor. Accordingly, and forall the aforesaid reasons, the petition fails and shall stand dismissed.

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-Report by Sejal Jethva

In Suraj VS the State of Maharashtra Home Department (Special), the petitioner filed a writ petition alleging that a total of seven violations were committed between the years of 2013 and 2022, with just two of those offences occurring in the latter year.

FACTS

The petitioner is challenging the legality or lack thereof of the impugned order dated 20/10/2022 made by respondent No.2 / District Magistrate, Amravati in accordance with Section 3(1) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons, Video Pirates, Sand Smugglers, and Persons Engaged in Black Marketing of Essential Commodities Act, 1981 (MPDA Act)

PETITIONER’S CONTENTION

Senior Counsel testifying on behalf of the petitioner fiercely argued that both of the impugned orders are defective in law, lacking in rational thought and reflecting subjective pleasure with the claimed detainee’s actions. He would contend that the detention order essentially violates the tenets on four different levels. First, he claimed that neither the Sub-Divisional Police Officer (SDPO) nor the Detaining Authority interacted with Witnesses ‘A’ and ‘B’ to record their subjective satisfaction or the accuracy of the statements made by the witnesses. Second, he asserted that the Detaining Authority disregarded the bail decisions made in various cases.

The Detaining Authority was not given or given copies of these bail orders, and this fact was not taken into consideration before the detention order was granted. Thirdly, he asserted that the detenue’s alleged actions are primarily directed against individuals and would most likely result in a law and order issue rather than a threat to the general public order. Finally, he asserted that there was an unexplained delay in serving the confirmation order on the detinue, which led to the petitioner’s filing of an effective response.

RESPONDENT’S CONTENTION

Contrarily, the Public Prosecutor testifying on behalf of respondents Nos. 1 and 2 State argued that the detention’s grounds contain all pertinent information, demonstrating unequivocally that the detaining authority carefully considered all of the information presented to it before reaching a conclusion that, in his view, is grounded in legal principles. While taking such drastic action, the detaining authority is not breaking any laws. He would contend that the SDPO spoke with both witnesses, went to the location they had described, and only then filed his report, which the Detaining Authority had looked over as material.

Then he would contend that the grounds for detention reflect the Detaining Authority’s consideration of the bail orders. He further argued that the detinue’s activities have a negative impact on public order and that residents in the area are afraid to approach law enforcement agencies or the court to freely testify against the detinue because of this fear. He continued by saying that the situations that the detaining authority was considering were directly related to the custody order.

JUDGMENT

1. The third paragraph of the reasons for imprisonment states that a total of seven violations were reported between 2013 and 2022. Similar preventative measures were taken against the detained in Chapter Case No. 38/2017, and a bond was executed for three years of good conduct. Only two of the seven offences, those registered in 2022 at the Paratwada Police Station, along with the in-camera statements of witnesses A and B, were taken into consideration by the detaining authority for the current order of detention, as stated in Paragraph No. 4.

2. In the present case, the issue was brought before the Advisory Board, which determined that there was adequate justification to maintain custody. Only then, the State Government affirmed the detention in its decision dated 24 November 2022, which was effective immediately and would last for 12 months. The confirmation order was issued by the government on 24 November 2022, but the detention order was issued on 20 October 2022. It demonstrates that the order was upheld within five weeks of the date of the detention order. As a result, there is no delay in confirming the government’s custody order.

3. As a result, we believe the petitioner’s argument in the current writ petition lacks merit.  The petition is consequently without merit and subject to dismissal for the grounds listed above. Therefore, the petition is denied. The rule is still in effect.

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