Tagged: Legal Tips
- This topic is empty.
October 15, 2022 at 4:36 PM #112395ritu raj JNUGuest
1-Dowry Case & Jurisdiction Sec.91 Cr.P.C. cannot be invoked against accused.
2-Accused are not entitled to court copies before filing charge sheet.
3-Guidelines to be followed by Magistrates when the complaints u/s 138 of N.I Act are taken on file. The following are the guidelines to be followed by Magistrates when the complaints under Section 138 of the Negotiable Instruments Act are taken on filed:
1) At the time of taking the complaint on file, the original cheques shall be produced before the Magistrate.
2) The Magistrate shall after affixing the seal of the court with the date and entering the other particulars such as the Registration number, make an endorsement to that effect on the back of the original cheque.
3) Thereafter the original cheque may be returned to the complainant; a photocopy of the dishonoured cheque may be attached with the complaint.
4) The original cheque shall be marked while adducing the evidence. (photo-copies are not admissible in evidence when the originals are available).
5) Summons to the respondents shall be sent along with the copy of the complaint.
6) After the service of summons, if the respondent does not appear, only bailable warrant shall be issued since the offence is bailable.
7) While issuing such warrant reasons for issuing warrant of arrest shall be recorded.
8) If, even after the execution of the bailable warrant, the respondent does not appear the securities furnished shall be forfeited, and a non – bailable warrant may also be issued.
October 15, 2022 at 4:39 PM #112396ritu raj JNUGuest
1- Without physical production of accused no remand extension order to be passed.
2- Forwarding complaint u/s 156(3) Cr.P.C – register to be maintained.
3-NDPS Act – small quantity – bailable offence.
October 16, 2022 at 3:52 PM #112595Rinku Das (Hazra)Guest
Modification of Bail Order
Application filed for modification of one of the bail conditions imposed vide Supreme Court’s order dt. 20.1.2015
Gali Janardhan Reddy
The State of Andhra Pradesh
SUPREME COURT OF INDIA – 10-10-2022
The applicant approached this Court by way of Special Leave Petition (Cri.) No.7053/2013. By an order dated 20.01.2015, the order which is sought to be now modified, this Court had released the applicant on bail subject to following conditions:
“a) He shall surrender his passport, if not already surrendered, to the learned Principal Special Judge for CBI Cases, Hyderabad. If he has already surrendered his passport before the learned Principal Special Judge, that fact should also be supported by an affidavit;
b) He shall not leave the country without the leave of the learned Principal Special Judge;
c) He shall not visit the Districts of Bellary in Karnataka and District of Ananthapuram and Cuddapah in Andhra Pradesh;
d) He shall cooperate with the Court in the smooth process of trial and its early conclusion;
e) He shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade such person from disclosing such facts to the Court or to tamper with the evidence;
f) He shall remain present before the learned Principal Special Judge on the dates fixed for hearing of the case without fail. If he requires to remain absent, he shall take prior permission of the learned Principal Special Judge and in case of unavoidable circumstances for remaining absent, he shall immediately appropriately intimate the learned Principal Special Judge and also to the Superintendent, CBI and request that he may be permitted to be present through the counsel.
g) Insofar as the surety amount is concerned, the petitioner shall execute a bond with two solvent sureties, in a sum of Rs.10,00,000/ (Rupees Ten lakhs only) each.
h) If, for any reason the petitioner fails to comply with all the conditions as stipulated above, the respondents are at liberty to approach this Court for modification / recall of the order granting bail to the petitioner.
10. The grant of bail to the petitioner shall be subject to any other cases that are pending against the petitioner, wherein the petitioner is yet to be granted bail by the appropriate court(s).”
3. Present application has been preferred by the applicant – accused to modify and/or delete condition No.(c) reproduced hereinabove and thereby permit him to enter, stay and function in the Districts of Ballery in Karnataka and District of Ananthapuram and Cuddapah in Andhra Pradesh.
4. At this stage it is required to be noted that in the year 2016 a similar request was made to delete the conditions that were imposed while granting bail. By an order dated 01.07.2016, this Court dismissed the said application, however, directed the trial Court to make an endeavour to complete the trial expeditiously. That, thereafter, one another application was made being Criminal Miscellaneous Petition No.6534/2017 for modification of the condition imposed while granting bail which came to be rejected by this Court vide order dated 09.05.2017. That, thereafter, the present application has been preferred. By an order dated 19.08.2021, this Court while adjourning the application to third week of November, 2021, has modified and substituted the condition No.(c) as under:
“(c)As and when the petitioner proposes to visit any of the following districts, being District Ballery in Karnataka and Ananthapuram and Cuddapah in Andhra Pradesh, he shall give prior intimation to the Superintendent of Police of the concerned district of the date when he proposes to go to the district and further he shall also give prior intimation to the concerned Superintendent of Police of the date of his departure from the said district.”
Condition No.(h) imposed in the order dated 20.01.2015 is reiterated.”
This Court has also observed that the trial Court shall make endeavour to proceed with the trial expeditiously.
5. Thereafter, the present application is notified before the Bench for further hearing.
6. Ms. Meenakshi Arora, learned Senior Advocate has appeared on behalf of the applicant – accused and Ms. Madhavi Divan, learned ASG has appeared on behalf of the respondent – CBI.
7. Ms. Meenakshi Arora, learned Senior Advocate appearing for the applicant has vehemently submitted that after the initial order was passed by this Court in the year 2015 granting bail on the conditions mentioned in the said order, the applicant has visited Bellary on 8 to 9 occasions pursuant to the permissions granted by this Court and during the said visits, the applicant has never violated any of the conditions imposed by this Court in the bail order. It is submitted that in past more than 6 to 7 years since the bail has been granted, the applicant has not violated any of the conditions as imposed. It is submitted that the trial has not proceeded further for which the applicant is not at all responsible. It is submitted that the delay in the trial is not attributable to the applicant. It is, therefore, requested to modify the condition No.(c) as mentioned in the order dated 20.01.2015 and permit the applicant to enter, stay and function in the Districts of Bellary in Karnataka and District of Ananthapuram and Cuddapah in Andhra Pradesh.
7.1. In the alternative it is prayed to continue modification of condition No.(c) as per the order passed by this Court on 19.08.2021.
8. Present application is vehemently opposed by Ms. Madhavi Divan, learned ASG. It is vehemently submitted that CBI has strong apprehension that if the condition No.(c) so imposed by this Court in the order dated 20.01.2015 is modified and/or substituted, the applicant may influence the witnesses which may ultimately affect the trial and the judicial process. It is submitted that in past, attempts were made to influence even the Judicial Officers which is already on record. It is submitted that despite the orders passed by this Court, the trial is not proceeding because of the conduct on the part of the accused persons by filing one after another discharge applications.
9. Ms. Madhavi Divan, learned ASG has submitted that therefore in case condition No.(c) of the order dated 20.01.2015 is modified, there would be serious threat to the witnesses because of the power and influence that the applicant is having. It is submitted that still as and when there is any emergency the applicant may still move this Court for appropriate permission which may be considered on case to case basis and therefore, to that extent, the interest of the applicant can be taken care of.
10. In response, Ms. Meenakshi Arora, learned Senior Advocate in the alternative has submitted that as the daughter of the applicant has recently delivered a child at Bengaluru and now she is at Bellary, the applicant may be permitted to visit and stay at Bellary atleast for a period of four weeks to be with his daughter.
11. On the aforesaid alternative prayer, Ms. Madhavi Divan, learned ASG has pointed out that in fact the daughter of the applicant had delivered the child at Bengaluru and she was never at Bellary. It is submitted that only after present application was heard by this Court on 29.09.2022, in the evening the daughter of the applicant is shifted to Bellary. Therefore, it is prayed to consider the aforesaid conduct on the part of the applicant.
12. We have heard Ms. Meenakshi Arora, learned Senior Advocate appearing for the applicant and Ms. Madhavi Divan, learned ASG appearing on behalf of the CBI at length. We have considered the submissions made on behalf of the respective parties. We have considered the material on record.
13. The applicant is facing the trial for very serious offences punishable under Sections 120(B), 420, 379, 409, 468, 411, 427 and 447 of the Indian Penal Code, 1860, section 2 of the Indian Forest Act, 1927, Rule 21 read with Rules 4(1), 4(1)(A) and 23 of the Mines and Minerals (Development and Regulation) Act, 1957. The investigation was carried out by the CBI. Most of the witnesses are from Bellary in Karnataka and District of Ananthapuram and Cuddapah in Andhra Pradesh. Taking into consideration the apprehension on the part of the CBI that if the applicant is allowed to enter, stay and function in the Districts of Bellary in Karnataka and District of Ananthapuram and Cuddapah in Andhra Pradesh and that there are all possibilities of applicant influencing and/or tampering with the witnesses, this Court while granting bail imposed condition No.(c) restraining the applicant from entering into the Districts of Bellary in Karnataka and District of Ananthapuram and Cuddapah in Andhra Pradesh. In past, the apprehensions are proved to be true and even the judicial officers were influenced / tried to be influenced. There is a serious apprehension on the part of the CBI / investigating agency that if condition No.(c) is relaxed and/or modified and/or substituted, there would be threat to the witnesses because of the power and influence that the applicant is having. It is very unfortunate that even after a period of 11 years of filing the FIR and despite the observations made by this Court directing the trial to be expedited, the trial has not begun. From the material on record, it appears that the trial has not begun on the ground that the accused / co-accused are filing the applications for discharge one after another, due to which the trial has not begun. In a case like this, it is always in the larger interest that the trial is concluded at the earliest. Early conclusion of the trial would enhance the faith of people in justice delivery system. The trial must come to its logical end at the earliest. Any attempt on the part of the accused to delay the trial of serious offences is to be dealt with iron hands. More the delay, more the possibilities of influencing the witnesses. Therefore, we are of the opinion that as despite the observations made by this Court directing to expedite the trial, as the trial has not begun, now, a direction is to be issued to the trial Court to begin the trial on day to day basis and once the trial begins the applicant – accused may be restrained from entering into the Districts of Bellary in Karnataka and District of Ananthapuram and Cuddapah in Andhra Pradesh looking to the strong apprehension on the part of the CBI recorded hereinabove.
14. In view of the above and for the reasons stated above, we dispose of / dismiss the present application for modification / substitution of condition No.(c) in the order dated 28.01.2015 passed by this Court in Special Leave Petition (Cri.) No. 7053/2013. However, we direct as under:
(1) Learned trial Court / Special Court is hereby directed to conduct the trial on day to day basis from 09.11.2022. We direct the learned Special Court to conclude the trial within a period of six months from 09.11.2022 without fail;
(2) That the prosecution may examine first, the witnesses from Bellary in Karnataka and District of Ananthapuram and Cuddapah in Andhra Pradesh as far as possible. It will be the duty of the investigating agency to keep all the witnesses present for the purpose of their depositions / examination in chief;
(3) All the accused are hereby directed to cooperate the learned Special Court in conclusion of the trial at the earliest and within the period stipulated hereinabove and any attempt on the part of the accused to delay the trial shall be viewed very seriously;
(4) As it is reported that the daughter of the applicant has delivered a child recently and now she is at Bellary, the applicant is permitted to stay at Bellary upto 06.11.2022. It is specifically directed that the applicant shall move out of Bellary and remain out of Bellary in Karnataka and Districts of Ananthapuram and Cuddapah in Andhra Pradesh from 07.11.2022 till the trial is concluded.
15. With the aforesaid directions, present application shall stand disposed of. Registry is directed to send the present order to the learned Special Court forthwith
October 16, 2022 at 3:59 PM #112596Rinku Das (Hazra)Guest
ISSUE: That the father of the respondent was in the clerical cadre serving with the appellants. He died in harness. After his death, his wife, i.e., mother of the respondent was appointed on compassionate ground. However, she died while in service. That thereafter the elder sister of the respondent made application for seeking appointment on compassionate ground. The said application was rejected
The State of Maharashtra and Anr . v . Ms. Madhuri Maruti Vidhate (Since after marriage Smt. Madhuri Santosh Koli (SUPREME COURT-30-09-2022)
While considering the issue involved in the present appeal, the law laid down by this Court on compassionate ground on the death of the deceased employee are required to be referred to and considered. In the recent decision, this Court in the case of Director of Treasuries in Karnataka and Anr. v. V. Somyashree [2021 SCC Online SC 704], had occasion to consider the principle governing the grant of appointment on compassionate ground. After referring to the decision of this Court in N.C. Santhosh v. State of Karnataka [2020 (7) SCC 617], this Court has summarised the principle governing the grant of appointment on compassionate ground as under:
(i) that the compassionate appointment is an exception to the general rule; (ii) that no aspirant has a right to compassionate appointment; (iii) the appointment to any public post in the service of the State has to be made on the basis of the principle in accordance with Articles 14 and 16 of the Constitution of India; (iv) appointment on compassionate ground can be made only on fulfilling the norms laid down by the State’s policy and/or satisfaction of the eligibility criteria as per the policy; (v) the norms prevailing on the date of the consideration of the application should be the basis for consideration of claim for compassionate appointment.
- As per the law laid down by this Court in catena of decisions on the appointment on compassionate ground, for all the government vacancies equal opportunity should be provided to all aspirants as mandated under Articles 14 and 16 of the Constitution. However, appointment on compassionate ground offered to a dependent of a deceased employee is an exception to the said norms. The compassionate ground is a concession and not a right.
6.1. In the case of State of Himachal Pradesh and Anr. v. Shashi Kumar reported in [2019 (3) SCC 653], this Court had an occasion to consider the object and purpose of appointment on compassionate ground and considered the decision of this Court in the case of Govind Prakash Verma v. LIC, reported in [2005 (10) SCC 289], in paras 21 and 26, it is observed and held as under:
“21. The decision in Govind Prakash Verma [Govind Prakash Verma v. LIC [2005 (10) SCC 289], has been considered subsequently in several decisions. But, before we advert to those decisions, it is necessary to note that the nature of compassionate appointment had been considered by this Court in Umesh Kumar Nagpal v. State of Haryana [Umesh Kumar Nagpal v. State of Haryana [1994 (4) SCC 138]. The principles which have been laid down in Umesh Kumar Nagpal [Umesh Kumar Nagpal v. State of Haryana [1994 (4) SCC 138] have been subsequently followed in a consistent line of precedents in this Court. These principles are encapsulated in the following extract: (Umesh Kumar Nagpal case [Umesh Kumar Nagpal v. State of Haryana [1994 (4) SCC 138], SCC pp. 139-40, para 2) “2. … As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved viz. relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned.” 26. The judgment of a Bench of two Judges in Mumtaz Yunus Mulani v. State of Maharashtra [2008 (11) SCC 384] has adopted the principle that appointment on compassionate grounds is not a source of recruitment, but a means to enable the family of the deceased to get over a sudden financial crisis. The financial position of the family would need to be evaluated on the basis of the provisions contained in the scheme. The decision in Govind Prakash Verma [Govind Prakash Verma v. LIC [2005 (10) SCC 289 : 2005 SCC (L&S) 590] has been duly considered, but the Court observed that it did not appear that the earlier binding precedents of this Court have been taken note of in that case.”
- Thus, as per the law laid down by this Court in the aforesaid decisions, compassionate appointment is an exception to the general rule of appointment in the public services and is in favour of the dependents of a deceased dying in harness and leaving his family in penury and without any means of livelihood, and in such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is, thus, to enable the family to tide over the sudden crisis. The object is not to give such family a post much less a post held by the deceased.
7.1. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, to appoint the respondent now on compassionate ground shall be contrary to the object and purpose of appointment on compassionate ground. The respondent cannot be said to be dependent on the deceased employee, i.e., her mother. Even otherwise, she shall not be entitled to appointment on compassionate ground after a number of years from the death of the deceased employee.
Director of Treasuries in Karnataka and Anr. v. V. Somyashree [2021 SCC Online SC 704]
N.C. Santhosh v. State of Karnataka [2020 (7) SCC 617]
State of Himachal Pradesh and Anr. v. Shashi Kumar [2019 (3) SCC 653]
Govind Prakash Verma v. LIC [2005 (10) SCC 289]
October 16, 2022 at 4:06 PM #112597Rinku Das (Hazra)Guest
MISCONDUCT BY BUS CONDUCTOR
Industrial Dispute Act, 1947
Rajasthan State Road Transport Corporation VS Bharat Singh Jhala (Dead) Son of Shri Nathu Singh, through Legal Heirs & Anr .[SUPREME COURT-30-09-2022]
Section 10 – Misconduct by conductor – Non-issuance of tickets to 10 passengers, even after receiving fare
At the outset, it is required to be noted that the workman was subjected to departmental enquiry and the charge against the deceased workman was not issuing the tickets to 10 passengers though he collected the fare. On conclusion of the departmental enquiry his services were terminated. The termination was the subject matter of the approval application before the Industrial Tribunal in an application under Section 33(2)(b) of the I.D. Act. In the said proceedings the management was permitted to lead the evidence and prove the charge/misconduct before the Tribunal. In the said application the parties led the evidence, both, oral as well as documentary. Thereafter on appreciation of evidence on record, the Industrial Tribunal by order dated 21.07.2015 approved the order of termination. That thereafter the workman raised the Industrial Dispute challenging the order of termination which as such was proved by the Industrial Tribunal by order dated 21.07.2015. Therefore, once the order of termination was approved by the Industrial Tribunal and the management was permitted to lead the evidence and prove the misconduct before the Court and thereafter on appreciation of evidence the order of termination was approved, thereafter the fresh reference under Section 10 of the I.D. Act challenging the order of termination was not permissible. It is required to be noted that the order dated 21.07.2015 passed by the Industrial Tribunal which as such is a higher forum than the Labour Court had attained the finality. Though the aforesaid fact was pointed out before the High Court, the High Court has not at all considered and/or appreciated the same and has confirmed the judgment and award passed by the Labour Court for setting aside the order of termination which as such was approved by the Industrial Tribunal.
5.2. Now so far as the reliance placed upon the decision of this Court in the case of John D’Souza (supra) by the learned counsel appearing on behalf of the respondent is concerned, on facts the said decision shall not be applicable to the facts of the case on hand. In the present case by specific order the Industrial Tribunal permitted the management to lead the evidence and prove the misconduct before the Court which as such was permissible. That thereafter the Industrial Tribunal approved the order of termination. Once the order of termination was approved by the Industrial Tribunal on appreciation of evidence led before it, thereafter the findings recorded by the Industrial Tribunal were binding between the parties. No contrary view could have been taken by the Labour Court contrary to the findings recorded by the Industrial Tribunal.
- In view of the above, the judgment and award passed by the Labour Court confirmed by the High Court is unsustainable. The High Court has committed a very serious error in dismissing the writ petition/writ appeal confirming the judgment and award passed by the Labour Court setting aside the order of termination.
October 16, 2022 at 4:11 PM #112598Rinku Das (Hazra)Guest
Non-Joinder of Necessary Party
Ram Kumar v. State of Uttar Pradesh and Ors.[SUPREME COURT-28-09-2022]
Court in the case of Mumbai International Airport Private Limited (supra) had an occasion to consider as to who is a necessary party to the proceedings. It will be relevant to refer to paragraph 15 of the said judgment, which reads thus:
“15. A “necessary party” is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. If a “necessary party” is not impleaded, the suit itself is liable to be dismissed. A “proper party” is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance.”
- It could thus be seen that a necessary party is a person in whose absence no effective decree could be passed by the Court. It has been held that if a “necessary party” is not impleaded, the suit itself is liable to be dismissed.
Another aspect that needs to be taken into consideration is that, a Full Bench of the Allahabad High Court in the case of Smt. Urmila Devi v. State of U.P. & 6 others [2015 SCC OnLine All 3910], had an occasion to consider an issue as to whether, upon suspension or cancellation of a licence of a Fair Price Shop, it was permissible for the State to make an interim or temporary arrangement by the appointment of a new fair price shop holder. The Full Bench of the Allahabad High Court held that the view taken by the Division Bench of the said High Court in the case of Jagannath Upadhyay v. State of U.P., through Principal Secretary, Food & Civil Suppies [Misc. Bench No.10373 of 2011] that till a statutory appeal is decided, the fair price shop should not be allotted on an ad hoc basis and should be attached only to some other neighbouring fair price shop, did not lay down a correct position of law. It has been held that the State Government was empowered to make a regular allotment during the pendency of the appeal filed by the earlier allottee against the cancellation or suspension of the licence.
It is to be noticed that in the present case, during the pendency of the appeal before the Appellate Authority, on a recommendation of the Tehsil Level Selection Committee dated 19th April 2018, the present appellant, through regular allotment, was appointed as Fair Price Dealer on 15th May 2018.
Insofar as the judgment of this Court in the case of Poonam (supra), on which strong reliance is placed by Mr. Irshad Ahmad, learned counsel, is concerned, this Court in the case of Pawan Chaubey (supra) had an occasion to consider the aforesaid judgment in the case of Poonam (supra). This Court in the case of Pawan Chaubey (supra) also noticed its earlier decision in the case of Sumitra Devi v. State of U.P. & Ors. [Civil appeal Nos. 9363-9364 of 2014, decided on 8th October 2014] Noticing both these judgments, this Court observed thus:
“Our attention has been drawn to the judgment of this Court in Poonam v. State of Uttar Pradesh & Ors. reported in [2016 (2) SCC 779]. Relying on the aforesaid judgment, learned counsel appearing 3 on behalf of the Respondent No.4 contended that the appellant need not be heard. She had no right or locus to be impleaded.
In Poonam (supra), the subsequent allottee had actually been heard at all stages. What the Court held was that the subsequent allottee had been trying to establish her right independently. She contended that she had an independent legal right. This Court found that it was extremely difficult to hold that she had an independent legal right.
In Sumitra Devi v. State of UP & Ors. [Civil Appeal Nos. 9363-9364 of 2014), a Bench of coordinate strength of this Court comprising Hon’ble Ms. Justice Ranjana Prakash Desai and Hon’ble Mr. Justice N.V. Ramana (As His Lordship then was) passed an order dated 08.10.2014, the relevant parts whereof are extracted hereinbelow:
“The appellant being the subsequent allottee filed an application for impleadment in the writ petition on 17.10.2008. That application was neither entertained nor allowed. xxx xxx xxx Learned counsel for the appellant urged and, in our opinion, rightly that the High Court should have heard the appellant before restoring the licence of respondent no.6 as the appellant was the subsequent allottee and his rights were affected by the restoration of licence of respondent no.6. We are entirely in agreement with learned counsel for the appellant. In our opinion, the High Court could not have restored the licence of respondent no.6 without hearing the appellant as his rights were certainly affected by such order.”
Even if a subsequent allottee does not have an independent right, he/she still has a right to be heard and to make submissions defending the order of cancellation.
It is true that the order of appointment of the appellant reads that the order is subject to the outcome of the proceedings pending in court. This does not disqualify the appellant from appearing and contesting the proceedings by trying to show that the order of cancellation had correctly been passed against the Respondent No.4.”
It could thus be seen that this Court had held that, even if a subsequent allottee does not have an independent right, he/she still has a right to be heard and to make submissions defending the order of cancellation.
It is further to be noticed that in the said case, i.e., Pawan Chaubey (supra), the order of appointment of the appellant therein was subject to the outcome of the proceedings pending in court. The case at hand stands on a much better footing. The appellant herein had been selected by the Tehsil Level Selection Committee in its meeting dated 19th April 2018 and thereafter, he was appointed as Fair Price Dealer vide order of the Competent Authority dated 15th May 2018, on a regular basis.
In this background, we find that the appellant was a necessary party to the proceedings before the High Court. The present appeal deserves to be allowed on this short ground. However, there is another more serious ground on which the present appeal deserves to be allowed.
The Appellate Authority in its order dated 20th July 2018 has categorically observed thus:
“At present, new dealer Sh. Ram Kumar Singh s/o Chhote Singh has been approved as Fair Price Dealer, village Anta Tehsil Rasoolabad, Kanpur Dehat vide District Magistrate’s order dated 15.05.2018. In the end, prayer has been made that the appeal being devoid of merits, may be dismissed.”
It has further been observed thus:
“As per the proposal made by Block Development Officer in the public interest, an open meeting was called on ………2018 for the selection of Fair Price Dealer at Gram Panchayat, Anta, in which the name of Sh. Ram Kumar Singh s/o Sh. Chhote Singh, resident of Gram Panchayat Anta, Tehsil Rasoolabad, Kanpur Dehat was taken into consideration and after discussion, in view of the decision taken by the Tehsil Level Selection Committee, dated 19th April 2018, as per the order of District Magistrate, Rasoolabad, Kanpur Dehat dated 15.05.2018, Sh. Ram Kumar Singh S/o Sh. Chhote Singh, resident of Gram Panchayat Anta, Tehsil Rasoolabad, Kanpur, Dehat has been appointed as new Kotedar in accordance with the orders issued by the Dy. Commissioner (Food) Kanpur Division and Hon’ble High Court, Allahabad.”
It could thus be seen that respondent No. 9 was very well aware that during the pendency of the proceedings, the appellant was appointed as a Fair Price Dealer on 15th May 2018. The order of the Appellate Authority has been passed on 20th July 2018. Even this being the position, respondent No.9 has been bold enough to aver thus in the memo of the writ petition:
“33. That it is also noteworthy to mention here that during the pendency of the Fair Price Shop, no third party allotment was made and as per the direction of this Hon’ble Court, the shop of the petitioner was attached to another Fair Price Shop Holder.”
It could thus be seen that, though respondent No.9 was very well aware that during the pendency of the proceedings before the Appellate Authority, an allotment was done in favour of the present appellant, she has averred in her writ petition that no third party allotment was made. She has further gone on to state that, as per the directions of the High Court, the fair price shop of respondent No.9 was attached to another fair price shop holder. The statement is factually incorrect to the knowledge of respondent No.9. The same has been reiterated in the Ground thus:
“N. Because during the pendency of the Fair Price Shop, no third party allotment was made as per the direction of this Hon’ble Court, the shop of the petitioner was attached to another Fair Price Shop Holder.”
It is thus clear that respondent No.9 has not only suppressed the fact about the subsequent allotment of the fair price shop to the appellant herein but has also tried to mislead the High Court that the fair price shop of respondent No.9 (the writ petitioner before the High Court) was attached to another fair price shop holder.
This Court, in the case of S.P. Chengalvaraya Naidu (Dead) By LRs. v. Jagannath (Dead) by LRs and others [1994 (1) SCC 1] has held that non-disclosure of the relevant and material documents with a view to obtain an undue advantage would amount to fraud. It has been held that the judgment or decree obtained by fraud is to be treated as a nullity. We find that respondent No.9 has not only suppressed a material fact but has also tried to mislead the High Court. On this ground also, the present appeal deserves to be allowed.
Pawan Chaubey v. The State of Uttar Pradesh & Ors. [Civil Appeal No.3668 of 2022]
Poonam v. State of Uttar Pradesh and others [2016 (2) SCC 779]
Smt. Urmila Devi v. State of U.P. & 6 others [2015 SCC OnLine All 3910]
Sumitra Devi v. State of U.P. & Ors. [Civil appeal Nos. 9363-9364 of 2014]
Jagannath Upadhyay v. State of U.P., through Principal Secretary, Food & Civil Suppies [Misc. Bench No.10373 of 2011]
Mumbai International Airport Private Limited v. Regency Convention Centre and Hotels Private Limited and others [2010 (7) SCC 417] (Para 6)
Puran Singh v. State of U.P. and others [2010 (2) UPLBEC 947]
S.P. Chengalvaraya Naidu (Dead) By LRs. v. Jagannath (Dead) by LRs and others [1994 (1) SCC 1]
October 16, 2022 at 4:19 PM #112599Rinku Das (Hazra)Guest
FACTS IN ISSUE – Husband’s application for DNA test to substantiate his allegation that appellant-son was not his biological son, was dismissed
Anju Garg & Anr. v. Deepak Kumar Garg [SUPREME COURT-28-09-2022]
Criminal Procedure Code, 1973
Section 125 – Maintenance for wife and children
At the outset, it may be noted that Section 125 of Cr.P.C. was conceived to ameliorate the agony, anguish and financial suffering of a woman who is required to leave the matrimonial home, so that some suitable arrangements could be made to enable her to sustain herself and the children, as observed by this Court in Bhuwan Mohan Singh v. Meena & Ors. [2015 (6) SCC 353]. This Court in the said case, after referring to the earlier decisions, has reiterated the principle of law as to how the proceedings under Section 125 Cr.P.C have to be dealt with by the Court. It held as under:
“In Dukhtar Jahan v. Mohd. Farooq [1987 (1) SCC 624 : 1987 SCC (Cri) 237] the Court opined that : (SCC p. 631, para 16) 16. “… Proceedings under Section 125 [of the Code], it must be remembered, are of a summary nature and are intended to enable destitute wives and children, the latter whether they are legitimate or illegitimate, to get maintenance in a speedy manner.” 8. A three-Judge Bench in Vimala (K.) v. Veeraswamy (K.) [1991 (2) SCC 375 : 1991 SCC (Cri) 442], while discussing about the basic purpose under Section 125 of the Code, opined that : (SCC p. 378, para 3) 3. “Section 125 of the Code of Criminal Procedure is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing, and shelter to the deserted wife.” 9. A two-Judge Bench in Kirtikant D. Vadodaria v. State of Gujarat [1996 (4) SCC 479 : 1996 SCC (Cri) 762], while adverting to the dominant purpose behind Section 125 of the Code, ruled that : (SCC p. 489, para 15) 15. “… While dealing with the ambit and scope of the provision contained in Section 125 of the Code, it has to be borne in mind that the dominant and primary object is to give social justice to the woman, child and infirm parents, etc. and to prevent destitution and vagrancy by compelling those who can support those who are unable to support themselves but have a moral claim for support. The provisions in Section 125 provide a speedy remedy to those women, children and destitute parents who are in distress. The provisions in Section 125 are intended to achieve this special purpose. The dominant purpose behind the benevolent provisions contained in Section 125 clearly is that the wife, child and parents should not be left in a helpless state of distress, destitution and starvation.” 10. In Chaturbhuj v. Sita Bai [2008 (2) SCC 316 : 2008 (1) SCC (Civ) 547 : 2008 (1) SCC (Cri) 356], reiterating the legal position the Court held : (SCC p. 320, para 6) 6. “… Section 125 CrPC is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Capt. Ramesh Chander Kaushal v. Veena Kaushal [1978 (4) SCC 70 : 1978 SCC (Cri) 508] falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat [2005 (3) SCC 636 : 2005 SCC (Cri) 787] .” 11. Recently in Nagendrappa Natikar v. Neelamma [2014 (14) SCC 452 : 2015 (1) SCC (Cri) 407 : 2015 (1) SCC (Civ) 346], it has been stated that it is a piece of social legislation which provides for a summary and speedy relief by way of maintenance to a wife who is unable to maintain herself and her children”.
This Court had made the above observations as the Court felt that the Family Court in the said case had conducted the proceedings without being alive to the objects and reasons, and the spirit of the provisions under Section 125 of the Code. Such an impression has also been gathered by this Court in the case on hand. The Family Court had disregarded the basic canon of law that it is the sacrosanct duty of the husband to provide financial support to the wife and to the minor children. The husband is required to earn money even by physical labour, if he is an able-bodied, and could not avoid his obligation, except on the legally permissible grounds mentioned in the statute. In Chaturbhuj v. Sita Bai [2008 (2) SCC 316], it has been held that the object of maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy and destitution of a deserted wife, by providing her food, clothing, and shelter by a speedy remedy. As settled by this Court, Section 125 Cr.P.C. is a measure of social justice and is specially enacted to protect women and children. It also falls within the Constitutional sweep of Article 15(3), reinforced by Article 39 of the Constitution of India.
The Family Court, in the instant case had not only over-looked and disregarded the aforesaid settled legal position, but had proceeded with the proceedings in absolutely pervert manner. The very fact that the right of the respondent to cross-examine the witnesses of the appellant-original applicant was closed, as he had failed to appear before the Family Court despite the issuance of warrants, clearly established that he had no regards for his own family nor had any regards for the Court or for the law. The allegations made by the appellant-wife in her evidence before the Court had remained unchallenged and, therefore, there was no reason for the Family Court to disbelieve her version, and to believe the oral submissions made by the learned counsel appearing for the respondent which had no basis. In absence of any evidence on record adduced by the respondent disputing the evidence adduced by the appellant, the Family Court could not have passed the order believing the oral submissions of the learned counsel for the respondent. She had clearly stated as to how she was harassed and subjected to cruelty by the respondent, which had constrained her to leave the matrimonial home along with her children, and as to how the respondent had failed and neglected to maintain her and her children. She had also proved by producing the documentary evidence that her father had paid money to the respondent from time to time to help the respondent for his business. Even if the allegations of demand of dowry by the respondent were not believed, there was enough evidence to believe that money was being paid to the respondent by the father of the appellant-wife, which substantiated her allegation that the respondent was demanding money from her father and was subjecting her to harassment. The errant respondent had also gone to the extent of questioning her chastity alleging that Rachit was not his biological son. There was nothing on record to substantiate his such baseless allegations. His application for DNA test was also rejected by the Family Court. Of course, the Family Court granted the Maintenance petition so far as the appellant no.2-son was concerned, nonetheless had thoroughly mis-directed itself by not granting the maintenance to the appellant-wife.
Such an erroneous and perverse order of Family Court was unfortunately confirmed by the High Court by passing a very perfunctory impugned order. The High Court, without assigning any reasons, passed the impugned order in a very casual manner. This Court would have remanded the matter back to the High Court for considering it afresh, however considering the fact that the matter has been pending before this Court since the last four years, and remanding it back would further delay the proceedings, this Court deemed it proper to pass this order.
Though it was sought to be submitted by the learned counsel for the respondent, and by the respondent himself that he has no source of income as his party business has now been closed, the Court is neither impressed by nor is ready to accept such submissions. The respondent being an able-bodied, he is obliged to earn by legitimate means and maintain his wife and the minor child. Having regard to the evidence of the appellant-wife before the Family Court, and having regard to the other evidence on record, the Court has no hesitation in holding that though the respondent had sufficient source of income and was able-bodied, had failed and neglected to maintain the appellants. Considering the totality of facts and circumstances, we deem it proper to grant maintenance allowance of Rs.10,000/- per month to the appellant-wife, over and above the maintenance allowance of Rs. 6,000/- granted by the Family Court to the appellant no. 2-son.
It is accordingly directed that the respondent shall pay maintenance amount of Rs. 10,000/- per month to the appellant-wife from the date of filing of her Maintenance Petition before the Family Court. The entire amount of arrears shall be deposited by the respondent in the Family Court within eight weeks from today, after adjusting the amount, if any, already paid or deposited by him.
October 17, 2022 at 10:40 PM #112793AdvocatetanmoyKeymaster
439- Special powers of High Court or Court of Session regarding bail.
(1) A High Court or Court of Session may direct-
(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in subsection (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub- section;
(b) that any condition imposed by a Magistrate when releasing an person on bail be set aside or modified:
Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.
(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.