Wednesday, June 27, 2018

Dhinakaran faction MLAs' disqualification: SC refuses to transfer case from Madras HC

Supreme Court
) today refused to transfer to itself a case to do with the disqualification of 18 
Tamil Nadu
 MLAs from the TTC 
Dhinakaran faction
 of the AIADMK.

The case will remain with the Madras high court (HC), said the SC, which then also appointed a new judge - Justice M Satyanarayana of Madras HC- to oversee the case. Earlier, Justice Vimala was assigned to hear the case.

The Madras High Court had on June 14 given a split verdict on petitions challenging the disqualification of 18 MLAs loyal to sidelined party leader Dhinakaran, a ruling that maintained status quo in the corridors of power in Tamil Nadu.

A division bench of Madras High Court comprising Chief Justice Indira Banerjee and Justice M Sundar delivered divergent verdicts on whether the 18 MLAs deserved to be disqualified under the anti-defection law by Speaker P Dhanapal on September 18 last year for approaching the Governor and seeking the removal of Chief Minister K Palaniswami.

The court ruled that the senior-most judge after the chief justice would now hand-pick a judge who will hear the matter afresh.

In her 200-page order, the 
 chief justice had upheld the Speaker's decision, saying, "In my opinion, the view taken by the Speaker is a possible, if not plausible view, and I am unable to hold that the said decision is any way unreasonable, irrational or perverse."

Justice Sundar, in his 135-page order, struck a dissenting note, insisting that Dhanapal's order "deserved to be set aside on grounds of perversity, non-compliance with principles of natural justice, mala fides and violation of the constitutional mandate".

The chief justice said status quo would continue till the third judge delivered the verdict on the petitions.

Tuesday, June 26, 2018

India most dangerous nation for women

India is considered to be the most dangerous country in the world for women, according to a poll by Thomson Reuters Foundation published on June.

The survey ranks India as more dangerous for women than war-torn Afghanistan and Syria, which came in second and third place, respectively. India is also seen as more dangerous for women than Somalia, which came fourth and has been mired in conflict since 1991, and Yemen, which came eighth and is suffering from an urgent humanitarian crisis.
A total of 548 global experts on women’s issues, ranging from NGO workers to social commentators to academics, 43 of whom are based in India, were asked questions relating to risks faced by women in six areas: healthcare, access to economic resources and discrimination, customary practices, sexual violence, non-sexual violence, and human trafficking.
India came out worst overall, and specifically worst for women in human trafficking, sexual violence and in relation to cultural, religious and tribal traditions.
When the London-based philanthropic arm of Thomson Reuters carried out the same poll in 2011, India was ranked fourth, ahead of Pakistan. This time Pakistan, in sixth place, was considered safer than India for women. “There was an outcry in India after the 2012 Delhi gangrape, so you would have thought things would have improved, but that does not seem to be the case even though new laws have been introduced and more women are reporting sexual crimes,” said Monique Villa, CEO of the Thomson Reuters Foundation.
“There are many different statistics in all these countries, but no one asks specialists how they see things. Perception polls can shed light on things you never think of. Our 2011poll was used to explain the 2012 gangrape.”
In this poll, India ranked specifically as the most dangerous country for sexual violence against women, which included domestic rape, rape by a stranger, sexual harassment and the lack of access to justice in rape cases. 40,000 rape cases were reported in India in 2016 but only 19% led to a conviction.

SEBC admission in MBBS: HC rejects appeal of ‘Hindu Baniya’

Gujarat high court has rejected an appeal filed by a student who got admission in MBBS course last year under reserved category of the Socially and Educationally Backward Classes (SEBC) though his caste certificate mentioned ‘Hindu Baniya’ as his caste.


Gujarat high court on Monday upheld the state government’s rule that the student seeking admission in undergraduate medical courses under state’s quota of 85% should be domiciled in Gujarat.
After upholding the rule of mandatory domicile status for eligibility for admission in MBBS, a bench of Chief Justice R S Reddy and Justice V M Pancholi ordered the state government to take a quick decision on whether those students, whose domicile of origin is Gujarat but have not cleared their Class 10 exams from the state, should be held eligible for admission.
The high court directed the state government to take immediate decision because according to the Medical Council of India (MCI) schedule, counselling process for admission was to begin from Monday. The HC did not want to disturb the schedule and ordered for quick decision.
Rule 4(3)(ii) of the Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules mandated for a candidate to clear Class 10 from Gujarat.
Later in May, the state government inserted another provision in form of Rule 4(1A), which provided that the student must be domiciled in Gujarat.
The high court has rejected the challenge to this law by holding it legally valid.
However, the high court was concerned with the fate of more than 125 students who hold domicile certificate, but did not pass their Class 10 exams from Gujarat.
One of such students was a daughter of an army personnel, who was posted in West Bengal for a few years and had passed her Class 10 exams from a school in WB.
The division bench said that since the rule of passing Class 10 exams existed before the mandatory domicile rule, the government must make clarity on this aspect.

Sunday, June 24, 2018

‘A Lawyer Cannot Avoid A Judge’: Kerala HC Recalls Former CJ’s Order To Not Post Cases Of Some Lawyers Before A Particular Judge.

‘A judge can recuse from a case. A judge can avoid a lawyer. But a lawyer cannot avoid a judge ‘.The decision by former Chief Justice has been suo moto recalled by Administrative Committee headed by new Acting Chief Justice. An unusual order passed by the former Chief Justice Antony Dominic accepting the request of four lawyers not to post their cases before Justice V.Chitambaresh has been recalled by the Administrative Committee headed by the new Acting Chief Justice Hrishikesh Roy.

“It creates a bad precedent and may encourage bench hunting/forum shopping”, states the decision taken by the new Administrative Committee. The decision related to cases in which Senior Advocate K. Jayakumar, Senior Advocate S.V Balakrishna Iyer, Advocate P.B.Krishnan and Advocate P.B Subramanian were appearing. Former Chief Justice Antony Dominic took this decision on May 28, a day prior to his retirement Backdrop of a missing case file. 
The unusual decision was taken in the backdrop of a missing case file. The case which is central to the controversy is Regular First Appeal [R.F.A 172/2016].The appeal arose from a decree ordering specific performance of agreement of sale. The defendants filed appeal after serving copy on the plaintiffs who had filed caveat in the High Court. The appeal was not coming up for hearing even after urgent memos were filed. The Registry informed that original files were missing. The files had to be reconstructed with photocopies. When the Bench headed by Justice Chitambaresh noticed the missing of files, it ordered enquiry by the Vigilance wing of the High Court. Enquiry report revealed that a theft had taken place. Valuable papers were missing even in the third set of RFA. Vigilance report indicated the involvement of lawyers and clerks in the missing of files. The Division Bench was about to order police investigation in the matter. But the then Administrative Committee intervened, and ordered disciplinary proceedings against staff instead.

Trump Targets EB-5 Visas After H1-B, Asks Congress to Tweak or Trash It

Top American lawmakers, too, have been opposing EB-5 Investors Visa programme as it increases cases of fraud and misuse of this one-of-its kind investors visa programme.

"The EB-5 regional center programme, which is set to expire on September 30 of this year, is in dire need of reforms to better protect US investors, businesses and communities against fraud, abuse, and mismanagement," L Francis Cissna, Director of the US Citizenship and Immigration Services told lawmakers during a Congressional hearing this week.

"More importantly, reforms are needed to protect against national security risks that allow foreign nationals to invest for the purpose of laundering money or conducting espionage against us," Cissna said.

EB-5 investor visa programme allocates up to 10,000 visas annually to foreign nationals, with a per country cap of seven per cent.

While India is the third highest filer of EB-5 visa application after China and Vietnam, majority of fraud and complaints of misuse have been coming from China.

Last year, 500 EB-5 petitions were filed by Indians, and this year 700 are expected to be filed.

The rate of rejection of applications for Indians under EB-5 stands at around 20 per cent, while the general denial rate is 10 per cent because of issues related to documentation and source of funds.

"The growing demand for EB-5 has spread throughout India especially Chandigarh, Punjab, Delhi, Mumbai, Tamil Nadu, Karnataka," said Abhinav Lohia from CanAm, which had 50 investors from India in 2016, 97 in 2017 and are expecting 200 this year.

Testifying before the Senate Judiciary Committee, Cissna said that the EB-5 Regional Center programme was set to expire on September 30, 2018.

"In the last decade, the programme has been re-authorised by Congress without added safeguards or tools for the Department to better operate the programme. In the absence of legislative reforms, I believe Congress should indeed consider allowing the programme to expire," he said.

In 1990, when Congress created category 5, the goal was to stimulate the economy through job creation and capital investment.

Two years later, with unemployment climbing, Congress created the Regional Center Program and set aside EB-5 visas for those who invest in commercial enterprises associated with regional centers.

As of 2018, a total of 903 regional centers exist, up from only 25 in 2008.

While the Regional Center concept facilitated more investments, it also opened the door for abuse, Cissna said, adding that there are indications that the programme has been used to undermine US national security with 19 cases of confirmed national security concerns in five years alone.

"We have also seen cases of fraud taint the programme and undermine public trust. Unscrupulous operators have preyed on foreign investors and, in turn, have harmed communities across the country that rely on these economic development dollars," he said.

"Some schemes have been massive, involving hundreds of millions of dollars where this - where the primary motivation of the operators may not be genuine investment, but simply making money off of the EB-5 programme," the USCIS head said.

Senator Chuck Grassley, Chairman of the Senate Judiciary Committee said as interest in the EB-5 Regional Center program had grown, so have cases of fraud, cases of corruption and threats to national security.

There are many, many well-documented examples of inherent problems in this programme, he rued.

Grassley referred about the ex-wife of China's third most powerful government official who pleaded guilty to committing EB-5 fraud by submitting false documents as part of a scheme to escape to the US with stolen funds.

In January, a group of over 120 Chinese nationals sued an Idaho real estate development company and claimed they were fraudulently coerced in investing over USD 60 million.

Friday, June 22, 2018

High court bans all water sports in Uttarakhand

 In an order which is likely to have far-reaching implications for Uttarakhand’s adventure tourism sector, the high court has banned all water sports, paragliding and white river rafting in the state until a policy is framed to regulate these activities. In an order dated June 18, the court directed the state government to “prepare a transparent policy in this regard within a period of two weeks”. The court also took note of rafting deaths every year due to capsizing of boat and said that it should only be permitted by highly trained professionals.

The court remarked that “sports for pleasure cannot be permitted to end in disaster” while adding that the state government could not permit the use of rivers without fixing reasonable charges and inviting bids in a transparent procedure. Tourism must be promoted but it is required to be regulated, the court said.

“We are shocked to know that the state government is permitting camping sites on river beds. It pollutes the environment and ecology of the river and the surrounding areas,” the division bench of Justices Rajiv Sharma and Lok Pal Singh said.

It said that launching points of river rafting are choked with traffic and directed the government to not permit the use of vehicles right up to the water of rivers.

“Huge rafts are placed on vehicles of a small size. The vehicles on which the rafts are carried out are taken directly near the water itself,” it observed.
The directions came while hearing a public interest litigation filed by Hari Om Kashyap, a resident of Rishikesh, alleging that temporary structures are being set up on the banks of Ganga and rafting is carried out by private entrepreneurs who were flouting norms.

“The sanctity of the river Ganga is not maintained by the respondent-state by permitting the lease of river beds. The raw sewage/sewerage is permitted to directly flow into the river. The state government till date has not enacted any law to regulate white river rafting, paragliding or water sports,” it said.
“Paragliding is equally dangerous if not regulated. The water sports in big lakes like Tehri Dam can prove fatal. These are required to be regulated,” said the court.

The HC said that river rafting, paragliding are permitted even without fixing the minimum rates and display of the same by organizers. “The state government has not pointed out precisely what is the yardstick, guidelines and parameters to sanction the lease in favour of private parties on the river beds including for boating/rafting, paragliding and other water sports,” observed the bench.

Thursday, June 21, 2018

Nishan Singh vs Oriental Insurance Company Ltd. ... on 27 April, 2018




              CIVIL APPEAL NO. 10145 OF  2016

NISHAN SINGH & ORS.                                   …..Appellant(s)

THROUGH REGIONAL MANAGER & ORS.    ....Respondent(s)
J U D G M E N T 
A.M. Khanwilkar, J.

1. This   appeal,   by   special   leave,   filed   by   the   claimants assails   the   judgment   and   order   of   the   High   Court   of Uttarakhand at Nainital in Appeal From Order No.125 of 2015 dated 5th March, 2015, whereby the appeal was dismissed and the   order   passed   by   the  MACT/Additional   District   Judge­III, Rudrapur, Udham Singh Nagar, dated 10 th December, 2014 in Motor Accident Claim Petition No.147 of 2012 dismissing theclaim petition on the finding that the accident in question was not on account of rash and negligent driving of Truck bearing No.   U.P.­32   Z­2397   but   on   account   of   rash   and   negligent driving of Maruti Car bearing No. U.P.­02 D­5292 resulting in death of Balvinder Kaur who was sitting in the car driven by Manjeet Singh, came to be upheld.
2. Briefly stated, appellant No.1 asserted that when he was returning home to village Bindukhera with his wife Balvinder Kaur, the mother of appellant Nos.2 to 4, from his matrimonial home   at   village   Kuankhera,   District   Bijnaur   along   with   his cousin   brothers   Manjeet   Singh   and   Bittu   and   his   son Karanjeet   Singh   on   28th  November,   2010   in   a   Maruti   Car bearing   No.   U.P.­02   D­5292   which   was   being   driven   by Manjeet Singh, son of Kashmir Singh, the said car met with an accident   causing   serious   injuries   to   the   persons   travelling therein, including the death of Balvinder Kaur. The maruti car had dashed against Truck bearing No. U.P.­32 Z­2397 which was running ahead of it. According to the appellants, the truck driver   suddenly   applied   brake   while   the   truck   was   in   the centre of the road, bringing it to the right side, as a result of which, the maruti car collided with the truck from the back. Balvinder Kaur eventually succumbed to her injuries on the same   day   i.e.   28th  November,   2010,   while   she   was   being treated at Govt. Hospital, Kashipur. After that, an F.I.R. was registered   on   4th  December,   2010   at   police   station   Kunda, District   Udham   Singh   Nagar,   bearing   No.93/10   u/s   279   for offences punishable under Sections 304A, 337, 338 and 427 ofIPC. The appellants asserted that Balvinder Kaur was gainfully employed   and   earned   around   Rs.10,000/­   (Rupees   Ten Thousand Only) per month from the dairy business.
3. On these assertions, a claim petition was filed before the Motor   Accident  Claims Tribunal/Additional  District Judge­III Rudrapur,   Udham   Singh   Nagar   being   M.A.C.   Case No.147/2012.   Appellant   No.1   who   was   travelling   in   the   car along   with   his   wife   deposed   before   the   Tribunal.   Appellants also examined Manjeet Singh who was driving the Maruti Car bearing   No.   U.P.­02   D­5292   at   the   relevant   time.   The appellants also relied on the charge­sheet filed by the police against   respondent   No.3   (Parasnath)   driver   of   the   offending truck. 
4. The respondents contested the claim petition. According to   the   respondents,   the   accident   occurred   due   to   the negligence  of   the   driver  of the maruti car and there was no negligence on the part of the truck driver. It was asserted by the   respondents   that   the   truck   driver   had   a   valid   driving licence.   Further,   the   appellants   had   failed   to   implead   the owner and driver of the maruti car who was responsible for the accident   and   as   such,   no   relief   could   be   granted   to   the appellants.
5. The Tribunal analysed the entire evidence on record and answered the issue as to whether the truck was being driven in   rash   and   negligent   manner   against   the   appellants.   The Tribunal instead held that the accident occurred due to rash and   negligent   driving   by   the   driver   of   the   maruti   car.   The Tribunal,   therefore,   concluded that the  truck driver  and  the insurer  of  the  truck were not liable to pay compensation as claimed.   The   Tribunal   noted   the   issue   of   contributorynegligence but, having regard to the facts of the present case and   particularly   because   the   owner   and   the   driver   of   the maruti car were not made parties, it held that the appellants were not entitled to any relief. The Tribunal also noted that the maruti car was purchased by Manjeet Singh about 1­1½ years before the accident but the same was not transferred in his name nor was it insured. Taking an overall view of the matter, the Tribunal dismissed the claim petition vide judgment dated 10th December, 2014.
6. The   appellants   carried   the   matter   in   appeal   before   the High   Court   of   Uttarakhand   at   Nainital.   The   High   Court summarily   dismissed   the   appeal   by   reiterating   the   finding recorded   by   the   Tribunal   that   the   evidence  clearly   indicated that   the   driver   of   the   maruti   car   himself   was   negligent   in driving his vehicle and had failed to keep sufficient distance between   the   two   vehicles   running   in   the   same   direction. Furthermore,   the   maruti   car   driver,   owner   and   concerned insurance   company   were   not   made   parties   to   the   claimpetition. The High Court, thus, declined to interfere in the first appeal.
7. The   appellants   have   assailed   the   aforementioned decisions   in   this   appeal.   According   to   the   appellants,   the finding   recorded   by   the   Tribunal   and   affirmed   by   the   High Court, that the driver of the maruti car had not maintained safe distance from the truck running ahead of the maruti car in the same direction, is untenable. The appellants have also assailed   the   finding   of   fact   recorded   by   the   Tribunal   and affirmed by the High Court that the maruti car was driven in a rash and negligent manner. It is urged that the fact that the maruti car was not registered in the name of Manjeet Singh or that the documents pertaining to the maruti car and even the valid   driving   licence   of   the   driver   of   maruti   car   was   not brought   on   record,   cannot   denude  the   appellants   to   receive compensation   due   to   contributory   negligence   of   the   truck driver.   Further,   the   Tribunal   committed   manifest   error   in recording the finding on the issue of contributory negligence against   the   appellants   without   framing   any   issue   in   thatbehalf. It is urged that the findings recorded by the Tribunal to absolve the truck driver, on the ground that the truck was not driven   rashly   and   negligently,   is   perverse   and   untenable   in law.   Moreover,   the   Tribunal has completely  glossed over  the efficacy   of   the   charge­sheet   filed   by   the   police   against respondent   No.3   truck   driver   after   due   investigation.   The appellants   have   also   reiterated   their   claim   regarding compensation, on the assertion that deceased Balvinder Kaur was earning around Rs.10,000/­ (Rupees Ten Thousand Only) per   month   and   after  her  death,  her   family   was  facing  grave hardship. According to the appellants, the Tribunal as well as the High Court had dealt with the matter in a hyper­technical manner and did not appreciate the evidence on the basis of preponderance of probabilities.
8. The respondents, on the other hand, have supported the finding   of   fact   recorded   by   the   Tribunal,   that   the   accident occurred   not   because   of   rash   and   negligent   driving   of   the truck but was on account of rash and negligent driving by the driver   of   the   maruti   car.   On   that   finding,   contends   learned counsel for the respondents, no liability can be fastened on the respondents.  He submitted that the analysis of the evidence on record by the Tribunal and affirmed by the High Court does not warrant any interference. The respondents have supported the conclusions recorded by the Tribunal and affirmed by the High Court for dismissing the claim petition.  
9. We   have   heard   Mr.   Vijay   Prakash,   learned   counsel appearing   for   the   appellants   and   Mr.   K.K.   Bhat,   learned counsel for the respondents.
10. The   moot   question   is   whether   the   Tribunal   committed any error in answering issue No.1 against the appellants and in favour   of  the  respondents. The Tribunal, while answering the   said   issue   No.1,   analysed   the   evidence,   both   oral   and documentary,   including   the   charge­sheet   filed   by   the appellants and observed thus:
“20. In site  plan  paper   No.6C/6  which  is  filed on  record, the breadth of the road in question appears to be 14 feet and about 7 steps Kachcha Lekh appears at the both sides of the road. This fact is remarkable that the said accident is not of front   accident   but   the   accident   occurred   as   a   result   of collision of the Maruti Car on the rear part of the truck in question by the driver of the car in question and the same fact is also mentioned in the evidence of the petitioners. PW­ 2 Manjeet Singh driver of the car in question as stated in his cross   examination   that   he   was   driving   the   car   behind   the truck at the distance of about 10­15 feet. Despite there being the breadth of the road 14 feet Pucca, the driver of the car in question kept the vehicle only at the distance of 10­15 feet from   the   truck   which   doesn’t   appear   in   accordance   with traffic rules. He should have driven the vehicle maintaining the   proper   distance   in   order   to   escape   from   each circumstance but he has admitted in his cross examination as   PW­2   that,   “he   knows   that   he   should   maintain   proper distance from the heavy vehicle”. Under such circumstance if the vehicle which is running behind the heavy vehicle, must maintain   the   proper   distance   if   the   proper   distance   is   not maintain then the whole negligence shall be determined on the   part   of   rear   vehicle   in   regard   to   the   occurrence   of accident in question. In addition no evidence in regard to the seizing of truck in question on the place of occurrence and taking   into   police   custody   the   vehicles   from   the   place   of occurrence   and   getting   done   their   technical   survey   is   not available on place of occurrence. 
21. By   the   facts   mentioned   in   the   petition   and   by   the evidence   of   PW­1   and   PW­2   it   doesn’t   appear   reliable   that rash and negligent driving in the accident in question was on the part of the driver of the truck in question and for this purpose   only   by   registering   of   F.I.R.   of   said   accident   and submitting of charge­sheet against the driver of the truck in question, the driver of the truck in question cannot be held guilty for the said accident, whereas by the evidence of the petitioner   on   record   this   fact   comes   forward   that   the accident occurred as the driver  of the car in question was not   driving   the   car   in   question   in   accordance   with   traffic rules i.e. the accident occurred as the vehicle was not being driven   maintaining   proper   distance   from   the   truck   and   it appears clearly that the speed of the car would have been fast whereby the car in question collided with the rear part of the truck in question being uncontrolled and said accident took place. Under such circumstance there was no rash and negligence on the part of the driver of truck bearing No.U.P.­ 32 Z­2397 regarding the accident in question but the same is determined on the part of Manjeet Singh driver of Maruti Car bearing No.U.P.­02 D­5292. 
22. On the basis of the aforesaid interpretation it appears that the said accident didn’t occur on 28.11.2010 at about 6:45   p.m.   at   village   Kunda   Kashipur­Jashpur   Road   under area of P.S. Kunda district Udham Singh Nagar by the driver of   the   truck   bearing   No.   U.P.­32   Z­2397   due   to   rash   and negligent driving of the truck and by applying sudden break but it occurred as a result of rash and negligent driving of Maruti   Car   bearing   No.   U.P.­02   D­5292   in   question   by Manjeet   Singh   driver,   wherein   Balvinder   Kaur   who   was sitting   in   the   car   sustained   serious   injuries   and   expired during her treatment on account of serious injuries.”  The finding so recorded by the Tribunal has been affirmed by the   High   Court,   by   observing   that   the   evidence   was   clearly indicative of the fact that the maruti car was being driven in a rash and negligent manner, which was the cause for accident of this nature and resulting in death of one of the passengers in the maruti car. The maruti car was driven by none other than   PW­2   Manjeet  Singh. In his evidence, he  has  admitted that the subject truck was running ahead of the maruti car for quite   some   time   about   one   kilometre   and   at   the   time   of accident, the distance between the truck and maruti car was only 10 ­15 feet. He has also admitted that the law mandates maintaining sufficient distance between two vehicles running in the same direction. It is also not in dispute that the road on which   the   two   vehicles  were  moving   was  only  about  14  feet wide.   It   is   unfathomable   that   on   such   a   narrow   road,   the subject truck would move at a high speed as alleged. In any case,   the   maruti   car   which   was   following   the   truck   was expected   to   maintain   a   safe   distance,   as   envisaged   in Regulation   23   of   the   Rules   of   the   Road   Regulations,   1989, which reads thus:
“23. Distance from vehicles in front.­ The driver of a motor vehicle   moving   behind   another   vehicle   shall   keep   at   a sufficient distance from that other vehicle to avoid collision if the vehicle in front should suddenly slow down or stop.”                      The expression ‘sufficient distance’ has not been defined in the Regulations   or   elsewhere.   The   thumb   rule   of   sufficient distance is at least a safe distance of two to three seconds gap in ideal conditions to avert collision and to allow the following driver time to respond. The distance of 10–15 feet between the truck   and   maruti   car   was   certainly   not   a   safe   distance   for which   the   driver   of   the   maruti   car   must   take   the   blame.   It must   necessarily   follow   that   the   finding   on   the   issue   under consideration ought to be against the claimants.
11. The Tribunal also noted that there was no evidence on record to indicate that the driver of the truck suddenly applied his brake in the middle of the road. Further, the finding on issue   No.1   recorded   by   the   Tribunal   is   that   there   was   no evidence regarding exact place of occurrence of accident and having taken survey. Therefore, the issue under consideration was answered against the appellants (claimants), namely, that the subject truck was not driven rashly and negligently by the truck driver nor had he brought the truck in the centre of the road at right side or applied sudden brake as being the cause of   the   accident.   Being   a   concurrent   finding   of   fact   and   a possible view, needs no interference. 

12. The next question is whether the Tribunal should have at least   answered   the   issue   of   contributory   negligence   of   the truck   driver   in   favour   of   the   appellants   (claimants).   The question   of   contributory   negligence   would   arise   when   both parties are involved in the accident due to rash and negligent driving. In a case such as the present one, when the maruti car was following the truck and no fault can be attributed to the   truck   driver,   the   blame   must   rest   on   the   driver   of   the maruti car for having driven his vehicle rashly and negligently. The High Court has justly taken note of the fact that the driver and owner of the maruti car, as well as insurer of that vehicle, had not been impleaded as parties to the claim petition. The Tribunal has also taken note of the fact that in all probability, the driver and owner of the maruti car were not made party being close relatives of the appellants. In such a situation, the issue of contributory negligence cannot be taken forward.
13. However, even in such a case, the Tribunal could have been well advised to invoke Section 140 of the Motor Vehicles Act,   1988,   (for   short   “the   Act”)   providing   for   liability   of   the owner of the vehicle (subject truck) involved in the accident. It is a well settled position that fastening liability under Section 140 of the Act on the owner of the vehicle is regardless of the fact   that   the   subject   vehicle   was   not   driven   rashly   and negligently.  We  may  usefully refer  to the decisions in  Indra Devi   and   others   Vs.   Bagada   Ram   and   another1  and  (2010) 13 SCC 249Eshwarappa alias Maheshwarappa and Another Vs. C.S. Gurushanthappa   and   Another2,  which   are   directly   on   the point. 
14. Accordingly, even though the appeal fails insofar as claim petition   under   Section   166   of   the   Act,   for   the   appellants having failed to substantiate the factum of rash and negligent driving by the driver of the subject truck, the appellants must succeed   in   this   appeal   to   the   limited   extent   of   relief   under Section 140 of the Act. We have no hesitation in moulding the relief on that basis.
15. For   the   reasons   mentioned   above,  this   appeal   is  partly allowed.   The   appellants   are   granted   limited   relief   under Section 140 of the Act. The respondent Nos.2 and 3 are made jointly   and   severally   liable   to   pay   a   sum   of   Rs.50,000/­ (Rupees   Fifty   Thousand   Only)   to   the   appellants   towards compensation under Section 140 of the Act, on account of the death of Balvinder Kaur in the accident which occurred on 28 th  (2010) 8 SCC 620November, 2010, along with interest at the rate of 9% from the date of filing of the claim petition till realization. 
16.  The appeal is partly allowed in the above terms with no order as to costs.    
(Dipak Misra) …………………………..….J.
          (A.M. Khanwilkar) …………………………..….J.
         (Dr. D.Y. Chandrachud) New Delhi;
April  27, 2018. 

SATPAL SINGH Appellant(s) VERSUS THE STATE OF PUNJAB Respondent(s) March 27, 2018.


SATPAL SINGH Appellant(s)



1. Leave granted.
2. The appellant – Satpal Singh (in Crl. Appeal. No.
462 of 2018) is before this Court, challenging the
order dated 04.10.2017 passed by the High Court of
Punjab and Haryana at Chandigarh in CRM-M-37140 of
2017 rejecting his application for anticipatory bail.
The High Court took note of the fact that the
appellant was an accused in FIR No. 0053, dated
11.06.2017 under Sections 22 and 29 of the Narcotic
Drugs and Psychotropic Substances Act, 1985 (in
short, “the NDPS Act”), registered at Police Station
Bhadson, District Patiala. Though it was argued that
a coordinate Bench of the High Court had granted
anticipatory bail to the co-accused, namely, Beant
Singh and Gurwinder Singh, who are brothers of the
appellant, as per order dated 21.09.2017, the learned
Judge was not inclined to accept the contention since
there was no question of parity as far as the bail is
concerned and in view of the fact that the Coordinate
Bench had not taken note of the limitations under
Section 37 of the NDPS Act. In our view, the learned
Judge is perfectly right in his approach and in
declining the protection under Section 438 of the
Code of Criminal Procedure, 1973 (in short “Cr.P.C.”)
3. Section 37 of the NDPS Act reads as follows :-
“Offences to be cognizable and
non-bailable – (1) Notwithstanding
anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974) -
(a) every offence punishable under this
Act shall be cognizable;
(b) no person accused of an offence
punishable for [offences under section 19
or section 24 or section 27A and also for
offences involving commercial quantity]
shall be released on bail or on his own
bond unless -
(i) the Public Prosecutor has been given
an opportunity to oppose the application
for such release, and
(ii) where the Public Prosecutor opposes
the application, the court is satisfied
that there are reasonable grounds for
believing that he is not guilty of such
offence and that he is not likely to
commit any offence while on bail.
(2) The limitations on granting of bail
specified in clause (b) of sub-section
(1) are in addition to the limitations
under the Code of Criminal Procedure,
1973 (2 of 1974) or any other law for the
time being in force, on granting of
bail.]” (Emphasis supplied)
4. Under Section 37 of the NDPS Act, when a person
is accused of an offence punishable under Section 19
or 24 or 27A and also for offences involving
commercial quantity, he shall not be released on bail
unless the Public Prosecutor has been given an
opportunity to oppose the application for such
release, and in case a Public Prosecutor opposes the
application, the court must be satisfied that there
are reasonable grounds for believing that the person
is not guilty of the alleged offence and that he is
not likely to commit any offence while on bail.
Materials on record are to be seen and the
antecedents of the accused is to be examined to enter
such a satisfaction. These limitations are in
addition to those prescribed under the Cr.P.C or any
other law in force on the grant of bail. In view of
the seriousness of the offence, the law makers have
consciously put such stringent restrictions on the
discretion available to the court while considering
application for release of a person on bail. It is
unfortunate that the provision has not been noticed
by the High Court. And it is more unfortunate that
the same has not been brought to the notice of the
5. Having thus noticed that apparently a wrong order
has been passed by the coordinate Bench of the High
Court, this Court, by order dated 22.11.2017,
directed the State to verify whether any steps have
been taken for challenging the orders granting
anticipatory bail to the co-accused.
6. The matter was adjourned to 15.12.2017 and
thereafter to 17.01.2018, and noticing that still no
steps had been taken by the State of Punjab for
challenging the apparently wrong order passed by the
High Court in respect of Beant Singh and Gurwinder
Singh, this Court passed the following order on
18.01.2018 :-
“Seeking, among other things, parity the
petitioner has sought for anticipatory
bail. Noticing the anticipatory bail
granted in an NDPS case to the
co-accused, this Court by order dated
22.11.2017, while issuing notice passed
the following order:-
“Issue notice, returnable in
three weeks.
In the meantime, the
respondent-State is directed to
clarify as to whether any steps
have been taken for challenging
the orders granting anticipatory
bail to the co-accused in the
same case.”
It is also relevant to note that in the
impugned order dated 4.10.2017 the
learned Judge has noted that the
coordinate Bench which granted
anticipatory bail to the co-accused has
omitted to take note of Section 37 of
NDPS Act, 1985.
Thereafter, the matter was posted on
15.12.2017 and the counsel sought three
weeks' time to file counter affidavit,
which was granted.
Today, learned counsel for the
respondent/State submits that the
counter affidavit is ready and the same
may be permitted to be filed during the
course of the week.
Permission is granted.
At paragraph 6 of the counter affidavit
it is stated “... no decision for
challenging the order dated 21.09.2017,
whereby anticipatory bail was granted to
co-accused, namely, Beant Singh and
Gurwinder Singh has been taken by the
Learned counsel for the respondent/State
submits that the process takes some
time, since the file has to pass through
many hands.
We direct the Secretary (Law) or the
Secretary concerned in the Government
dealing with the matters regarding
sanction to be present before this Court
with the records pertaining to the
sanction for cancellation of the bail
granted to the co-accused by order dated
21.09.2017, on the next date of hearing.
Post on 07.02.2018.”
7. Thereafter, the matter was adjourned to
07.02.2018. Incorporating the order dated 18.01.2018,
this Court passed a further order, which reads as
follows :-
“Today, Mr. N.S. Kalsi, Additional Chief
Secretary, Home Affairs and Justice,
along with Superintendent of Police,
Patiala and the other police officers
concerned are present in Court.
It is reported that the matter came to
the notice of the Additional Chief
Secretary, Home Affairs and Justice,
only on 25.01.2018 and within a week
steps have been taken to file a special
leave petition and the same has been
We direct the Additional Chief
Secretary, Home Affairs and Justice, to
conduct an appropriate inquiry as to who
are the officials/officers involved in
taking such a lackadaisical attitude
despite the High Court in the impugned
order pointing out that the order
granting bail to the co-accused was not
Needless to say that the Report shall
contain names of the officers who,
despite three postings before this
Court, were not vigilant in not
bringing up the matter before the
Government. The Report, as above, shall
be filed within four weeks from today.
Post after four weeks.
The presence of the officers is
dispensed with until further orders.”
8. Thereafter, it appears the State became alert and
steps have been taken to challenge the anticipatory
bail granted to Beant Singh and Gurwinder Singh and
that is the subject matter of Crl. Appeal No. 463 of
9. The State has referred to in detail, the decision
of the Punjab and Haryana High Court in Vinod Kumar
vs. State of Punjab, reported in (2013) 1 RCR
(Criminal) 428 regarding drug addiction and its ill
effects in society. Thus, it is not as if the State
was not aware of the grave situation in the State of
Punjab. Yet, it is disturbing to note that the
prosecution has been lackadaisical in their approach
in not taking vigilant measures.
10. The learned counsel appearing for the accused
submits that pursuant to the order passed by the High
Court, they had surrendered before the Sessions Court
and they were released on regular bail. The order
dated 31.10.2017 passed by the Sessions Court has
been made available for the perusal of the Court.
The order reads as follows :-
“Challan presented today. It be checked
and registered. Copies of documents
supplied to accused Gurwinder Singh and
Beant Singh who have come present free
of costs. They also moved application
for accepting and attesting the surety
bonds as per orders of the Hon’ble High
Court dated 14.7.2017. The copy of the
order passed by Hon’ble High Court is
also enclosed herewith. The said order
has been verified from the site of the
Hon’ble High Court through Internet. In
view of the orders passed by Hon’ble
High Court, both the accused are
directed to furnish the bail bonds in
the sum of Rs. One Lac with one surety
in the like amount each. Bonds
furnished which have been accepted and
attested. Amrik Singh is lodged in
Central Jail, Patiala in this case. Let
his production warrants be issued for
11. It may be seen that what is noted by the learned
Sessions Judge is the interim order passed by
the High Court dated 14.07.2017, which reads as
follows :-
“Learned counsel for the petitioners
submits that as per the police version,
recovery of contraband was effected from
the bag carried by Amrik Singh father of
petitioners and petitioner-Gurwinder
Singh was alleged to be driver of the
motor cycle. The question as to whether
the petitioners were in conscious
possession of contraband, in possession
of their father, is to be seen by the
Investigating Agency before presenting
the challan.
Notice of motion for 21.09.2017.
In the meanwhile, the petitioners are
directed to surrender before the police
and join investigation within a week.
In the event of their arrest being
required, they shall be released on
interim bail till the next date, subject
to their furnishing bonds to the
satisfaction of Arresting Officer.
However, they shall abide by the terms
and conditions as envisaged under
Section 438(2)(i) to (iv) Cr.P.C.
failing which they shall loose the
benefit of interim bail allowed to
12. As a matter of fact, the main petition itself
had been disposed of by order dated 21.09.2017. The
order reads as follows :-
“The present petition has been filed
under Section 438 Code of Criminal
Procedure for grant of anticipatory bail
to the petitioners in case FIR No. 0053
dated 11.06.2017 registered for the
offences punishable under Sections 22,
29 of Narcotic Drugs and Psychotropic
Substances Act, 1985 at Police Station
Bhadson, District Patiala.
Amrik Singh was arrested by the police
with contraband which included various
drugs. The allegations against the
petitioner No. 2 Gurwinder Singh is that
he had escaped from the spot after
leaving the motor cycle on which he was
travelling with his father-Amrik Singh.
The allegations against petitioner
No.1-Beant Singh is that he had been
procuring contraband and giving the same
to his father and brother for sale.
Beant Singh was not even present at the
spot when the recovery was effected.
Even after his joining the investigation
nothing has been recovered by the police
regarding allegations contained in
secret information on the basis of which
this FIR was registered. Identity of
Gurwinder Singh as a person who
allegedly ran away from the spot is a
point which call for proof during trial.
Keeping in view the above fact but
without expressing any opinion on the
merits of the case, this petition is
allowed and the order dated 14.07.2017
is made absolute till the presentation
of challan, subject to the following
(i) that the petitioners shall make
themselves available for interrogation
by the police as and when required;
(ii) that the petitioners shall not,
directly or indirectly, make any
inducement, threat or promise to any
person acquainted with the facts of the
accusation against them so as to
dissuade him from disclosing such facts
to the Court or to any police officer;
(iii) that the petitioners shall not
leave India without the prior permission
of the Court.
(iv) that the petitioners will seek
regular bail on the presentation of
challan in Court, which the trial Court
will decide on the basis of evidence
collected during investigation.”
13. It is unfortunate that the Sessions Court did not
take note of the final order passed by the High
Court. The Court should have enquired as to whether
the matter had been finally disposed of, particularly
after noticing the interim order. The casual approach
adopted by the learned Sessions Judge has apparently
led to the accused being released on regular bail, on
the basis of the interim order passed by the High
Court. When the application for anticipatory bail was
the subject matter before the High Court, the accused
had no business to go and surrender before the
Sessions Court and seek regular bail on the basis of
an interim order. The learned counsel for the
accused submits that they had produced the final
order passed by the High Court dated 21.09.2017 along
with the application for regular bail.
14. In any case, the protection under Section 438,
Cr.P.C. is available to the accused only till the
court summons the accused based on the charge sheet
(report under Section 173(2), Cr.P.C.). On such
appearance, the accused has to seek regular bail
under Section 439 Cr.P.C. and that application has to
be considered by the court on its own merits. Merely
because an accused was under the protection of
anticipatory bail granted under Section 438 Cr.P.C.
that does not mean that he is automatically entitled
to regular bail under Section 439 Cr.P.C. The
satisfaction of the court for granting protection
under Section 438 Cr.P.C. is different from the one
under Section 439 Cr.P.C. while considering regular
15. Be that as it may, the order dated 21.09.2017
passed by the High Court does not show that there is
any reference to Section 37 of the NDPS Act. The
quantity is reportedly commercial. In the facts and
circumstances of the case, the High Court could not
have and should not have passed the order under
Sections 438 or 439 Cr.P.C. without reference to
Section 37 of the NDPS Act and without entering a
finding on the required level of satisfaction in case
the Court was otherwise inclined to grant the bail.
Such a satisfaction having not being entered, the
order dated 21.09.2017 is only to be set aside and we
do so.
16. Consequently, the order dated 31.10.2017 passed
by the Sessions Court is also set aside. All the
three accused in both these appeals are directed to
surrender before the trial court. However, we make it
clear that they are free to apply for regular bail,
in which case, the Sessions Court will consider the
matter on the merits of the application. Before
parting with the Judgment, we also painfully note
that even in the inquiry conducted pursuant to the
orders passed by this Court, there was no reference
to the regular bail granted to Beant Singh and
Gurwinder Singh and that too, on production of an
interim order passed by the High Court. Had the same
been noticed, the State would have certainly taken
steps much earlier. This is once again to remind the
police and the prosecutor that they need to show due
diligence and vigilance while dealing with the cases
under the NDPS Act.
17. We make it clear that none of the observations
made in this judgment shall have any bearing on the
trial or consideration of any application for bail at
any stage since our order is only for the purpose of
the appeals in the matter of grant of bail.
18. With the above observations and directions, the
Crl. Appeal No. 462 of 2018 is dismissed and that of
the State i.e. Crl. Appeal No. 463 of 2018 is
New Delhi;
March 27, 2018.

 S U P R E M E C O U R T O F I N D I A
Petition(s) for Special Leave to Appeal (Crl.) No(s). 8184/2017
(Arising out of impugned final judgment and order dated 04-10-2017
in CRMM No. 37140/2017 passed by the High Court Of Punjab & Haryana
At Chandigarh)
SATPAL SINGH Petitioner(s)
SLP(Crl) No. 1428/2018 (II-B)
Date : 27-03-2018 These matters were called on for hearing today.
For Petitioner(s) Mr. H. P. S. Ghuman, Adv.
Mr. Devesh Kumar Tripathi, AOR

For Respondent(s) Ms. Jaspreet Gogia, AOR
 UPON hearing the counsel the Court made the following
 O R D E R
Leave granted.
Crl. Appeal No. 462 of 2018 is dismissed and that of the State
i.e. Crl. Appeal No. 463 of 2018 is allowed in terms of the signed
reportable Judgment.
Pending Interlocutory Applications, if any, stand disposed of.
(Signed reportable Judgment is placed on the file)