Saturday, May 18, 2019

Scope Of Enquiry Under Section 202 CrPC: SC Explains

The Supreme Court, in a judgment delivered recently, has succinctly explained the scope of enquiry under Section 202 of the Code of Criminal Procedure.
In Birla Corporation Ltd. v. Adventz Investments and Holdings Ltd, the Apex Court bench of Justice R. Banumathi and Justice R. Subhash Reddy observed that the purpose of the enquiry under Section 202 Cr.P.C. is to determine whether a prima facie case is made out and whether there is sufficient ground for proceeding against the accused. Page 19-29 of the judgment discusses the scope of Section 202 CrPC.
The bench said that, on presentation of the complaint by an individual, the Magistrate is required to examine the complainant and the witnesses present, if any. Thereafter, on perusal of the allegations made in the complaint, the statement of the complainant on solemn affirmation and the witnesses examined, the Magistrate has to get himself satisfied that there are sufficient grounds for proceeding against the accused and on such satisfaction, the Magistrate may direct for issuance of process as contemplated under Section 204 Cr.P.C. The court added that the allegations in the complaint and complainant's statement and other materials must show that there are sufficient grounds for proceeding against the accused. It said:
"The scope of enquiry under this section is extremely restricted only to finding out the truth or otherwise of the allegations made in the complaint in order to determine whether process should be issued or not under Section 204 Cr.P.C. or whether the complaint should be dismissed by resorting to Section 203 Cr.P.C. on the footing that there is no sufficient ground for proceeding on the basis of the statements of the complainant and of his witnesses, if any. At the stage of enquiry under Section 202 Cr.P.C., the Magistrate is only concerned with the allegations made in the complaint or the evidence in support of the averments in the complaint to satisfy himself that there is sufficient ground for proceeding against the accused."
The court also added that, under amended sub-section (1) to Section 202 Cr.P.C., it is obligatory upon the Magistrate that before summoning the accused residing beyond its jurisdiction, he shall enquire into the case himself or direct the investigation to be made by a police officer or by such other person as he thinks fit for finding out whether or not there is sufficient ground for proceeding against the accused. Referring to various judgments on the subject:
"The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The application of mind has to be indicated by disclosure of mind on the satisfaction. Considering the duties on the part of the Magistrate for issuance of summons to accused in a complaint case and that there must be sufficient indication as to the application of mind and observing that the Magistrate is not to act as a post office in taking cognizance of the complaint."
Some other judgments referred by the bench on the subject are the following:

Friday, May 17, 2019

Insurers can’t deny cover for mental illness, adventure sports enthusiasts

Insurance regulator IRDAI on Friday came out with new rules that will have widespread ramifications for health insurers and the general public. Insurers henceforth cannot decline coverage to those who have used opioids or anti-depressants. Nor can they exclude those with a history of clinical depression, personality disorders, sociopathy, psychopathy, or neurodegenerative disorders.
They cannot exclude kids suffering from development disorders such as Down’s syndrome, cerebral palsy, and autism, or those suffering from dyslexia, stammering and other disorders of speech and language. Batting for the LGBTQ community, IRDAI has said that insurers cannot discriminate on the basis of gender and identity. Insurers cannot refuse to provide coverage or reject claims if a person is on life support. Insurers can reject claims only if the patient is certified as being in a vegetative state, but even then insurers will be required to provide coverage/pay expenses till that date.
For young girls and older women who suffer from excessive bleeding, hormonal changes due to the onset of puberty or menopause, insurers can no longer exclude coverage or payment for treatment costs. Insurers cannot deny coverage to geriatric patients, suffering from age-related macular degeneration (ARMD) and those suffering from rare or orphan diseases.
Insurers will have to cover adventure sports such as dirt biking, paragliding, whitewater rafting, go-karting, F1 racing, and ethnic sports like jallikattu and kambala. This would be a relief to sports enthusiasts, clubs and adventure trip organisers.
Another important decision is that at the point of claims if the person is discovered to be a smoker or suffering from a disease/pre-existing condition, the insurer cannot reject the claim if he/she has been availing of insurance for eight years in continuity.
IRDAI has said that insurers cannot exclude coverage or reject claims if the policyholder has “failed to seek or follow medical advice or follow treatment”. Often patients undergoing treatment for a condition stop the treatment towards the final stages or stop taking drugs midway. Insurers have been known to penalise patients for failure to follow through on a prescribed regime.

UK visa racket busted in Valsad- Gujarat

Travel Agent And Two Clients Allegedly Forged Documents

Police busted a racket of visa application to British High Commission on the basis of forged documents with the arrest of a 32-year-old travel agent and two of his clients in Valsad on Friday. Police produced the travel agent in a local court which remanded him in their custody until May 21. Six people have been booked altogether in this connection at Valsad town police station.
Accused Soyeb Saiyed is the owner of Soby Tour and Travel. Tabrez Sharafat Husain Gebi and Mohamed Shakil Hanif Shaikh, both from Valsad, who two were arrested, had applied for a visa to the UK in 2018 through Saiyed. Three others who were booked were Mohmed Imran Basir Ahmed Doctor, Sarfaraz Abdul Kadir Saiyed and Riyaz Chhotu Panjwani. Police investigation revealed that Sarfaraz and Riyaz are currently in South Africa.

The complaint was lodged by Darren Fraser, immigration liaison officer of British High Commission, New Delhi.
Police suspect around 40 visa applications of clients for the United Kingdom had been filed by Saiyed.
Detailed checking by document verification unit of British High Commission has found that Saiyed had submitted forged income tax returns, bank balance certificates and travel agency letters on behalf of his clients.
“It is an unusual case where so many applications with forged documents had been filed,” said Sunil Joshi, superintendent of police, Valsad. TOI

Wednesday, May 15, 2019

Temporary removal of document for replication of content can be the subject of Theft, Supreme Court

The Supreme Court recently held that information replicated from a document even temporarily removed from its lawful custody, will fall within the purview of “movable property” and thus can be the subject matter of theft under Section 378 of the Indian Penal Code.
While deciding the point of law, a Bench of Justices R Banumathi and Subhash Reddyheld,
“Information contained in a document, if replicated, can be the subject of theft and can result in wrongful loss, even though the original document was only temporarily removed from its lawful custody for the purpose of extracting the information contained therein.”
As per the facts of the case, the appellant Birla Corporation had alleged the theft of fifty-four of its documents by the respondents, Adventz Investments and Holdings. A criminal complaint was filed by the appellant company alleging the commission of offences punishable under Sections 379, 403 IPC read with Section 120-B IPC. This complaint was filed in the midst of a complex web of litigation between the parties.
However, the Calcutta High Court had quashed the complaint. The High Court held that since originals of the documents were still in the custody of the complainant, taking away the information contained in such documents cannot be considered to be “movable property”. Thus, the temporary removal of the documents for taking information by itself cannot be the subject of the offence of theft. The appellant company then approached the Supreme Court in appeal.
The question before the Supreme Court was whether temporary removal of the documents and using them in the litigation pending between the parties would amount to theft.
The following requirements need to be established in order to make out a case of theft under Section 378 IPC:
  • Dishonest intention
  • To take away movable property
  • For wrongful gain
  • To cause wrongful loss
While interpreting whether the replication of information from a document would fall under the scope of movable property, the Court noted,
““Moveable property” is defined in Section 22 IPC which includes a corporeal property of every description. It is beyond doubt that a document is a “moveable property” within the meaning of Section 22 IPC which can be the subject matter of theft. A “document” is a “corporeal property”. A thing is “corporeal” if it has a body, material and a physical presence….
…The first Explanation to Section 29 IPC provides that it is immaterial by what means or upon what substance these are formed. This definition would include within its ambit photocopy of a document. As per Explanation No.2 of Section 29 IPC, letters, figures or marks shall be deemed to be expressed by such letters, figures or marks within the meaning of the Section. Such letters, figures or marks thus have a material and physical presence. Therefore, it can also be inferred that the said information would be deemed to fall within the purview of “Document” – a corporeal property.”
Therefore, the Bench held that the High Court was not right in holding that the replication of the documents or use of information therein is not moveable property and would not amount to theft.
However, the Court held that the replication of information in the facts and circumstances of the present case would not amount to theft. The Court held that there wasn’t sufficient evidence to conclude that there was a dishonest intention on the part of the respondent company to create wrongful gain for themselves.
“…it is to be seen in using the documents in the litigation, whether there is “dishonest intention” on the part of the respondents in causing “wrongful loss” to the appellant Company and getting “wrongful gain” for themselves. Respondents…have produced the photocopies of the documents No.1 to 54 in the CLB proceedings which were filed by them on the ground of oppression and mismanagement.
Merely because the respondents have produced the copies of the documents in the CLB proceedings, it cannot be said that the respondents have removed the documents with “dishonest” intention. Copies of documents are produced in support of the case of respondents No.1 to 5 and to enable the Court to arrive at the truth in a judicial proceeding involving alleged oppression and mismanagement in the affairs of the appellant Company by respondent No.17.”
The Court further held,
“When a bona fide dispute exists between the parties as to whether there is oppression and mismanagement, there is no question of “wrongful gain” to the respondents or “wrongful loss” to the appellant. In using the documents, when there is no dishonest intention to cause “wrongful loss” to the complainant and “wrongful gain” to the respondents, it cannot be said that the ingredients of theft are made out…
…How the respondents had access to the documents may be one thing. It may perhaps have bearing on the evidentiary value to be attached to the documents. But to say that it amounts to theft and seeking to prosecute the respondents is nothing but an attempt to cow down their defence in the litigation or to deprive the respondents of their valuable defence.”
Thus, the judgment of the High Court was set aside and the appeals were allowed.
In the same case, the Court also made an important ruling as regards Section 202 of the Code of Criminal Procedure. It was held that it is obligatory upon the Magistrate that before summoning the accused residing beyond its jurisdiction, he shall enquire into the case himself or direct the investigation to be made by a police officer for finding out whether or not there is sufficient ground to proceed against the accused.

Section 138 NI Act: Delay In Filing The Complaint Can Be Condoned If Sufficient Cause Is Shown In The Complaint

The Supreme Court has observed that cognizance of a complaint filed under Section 138 of the Negotiable Instrument Act can be taken by the court even after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period.
The bench comprising Justice DY Chandrachud and Justice Hemant Gupta was concerned with an appeal against Patna High Court judgment which quashed a summons issued by Chief Judicial Magistrate in a cheque bounce complaint.

In Birendra Prasad Sah vs. State of Bihar, after dishonour of cheques, the complainant issued a legal notice on 31.12.2015. As the accused failed to reply, the reminder notice was issued on 26.02.2016 by the complainant. The accused replied to the second notice denying his liability. The complaint was filed on 11.05.2016. The delay in filing complaint was condoned by the CJM taking into consideration the request made by the complainant that during the intervening period he had fallen ill.

The High Court had quashed the summons mainly on the ground that it was not permissible for a payee to create another cause of action in respect of the same cheque. It also observed that the complainant failed to file the complaint within the statutory period of thirty days as prescribed under the N.I. Act in pursuance to the issuance of first notice.
In appeal, though it was argued before the Apex Court bench, that in MSR Leathers v. S Palaniappan, a three judge Bench of this Court has taken the view that the issuance of successive notices is permissible under the provisions of Section 138, the bench did not consider this issue.
Instead, the bench observed that that sufficient cause was shown by the complainant for condoning the delay in instituting the complaint taking the basis of the complaint as the issuance of the first legal notice dated 31 December 2015. Setting aside the High Court order on this ground, the bench said:
"The complaint was instituted on 11 May 2016. Under Section 142(1), a complaint has to be instituted within one month of the date on which the cause of action has arisen under clause (c) of the proviso to Section 1386 . The proviso however stipulates that cognizance of the complaint may be taken by the court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period. Both in paragraphs 7 and 8 of the complaint, the appellant indicated adequate and sufficient reasons for not being able to institute the complaint within the stipulated period. These have been adverted to above. The CJM condoned the delay on the cause which was shown by the appellant for the period commencing from 6 April 2018. However, if paragraphs 7 and 8 of the complaint are read together, it is evident that the appellant had indicated sufficient cause for seeking condonation of the delay in the institution of the complaint. The High Court has merely adverted to the presumption that the first notice would be deemed to have been served if it was dispatched in the ordinary course. Even if that presumption applies, we are of the view that sufficient cause was shown by the appellant for condoning the delay in instituting the complaint taking the basis of the complaint as the issuance of the first legal notice dated 31 December 2015."





Tuesday, May 14, 2019

Sharing Meme Of Mamata Banerjee: SC Directs Immediate Release Of BJP Activist

The Supreme Court on Tuesday 14/05/2019 directed BJP Leader Priyanka Sharma arrested by West Bengal police for allegedly sharing a morphed photo of Chief Minister Mamata Banerjee on social media to be released immediately.
The order of release, initially being subject to her furnishing a written apology forthwith on her release, was ultimately modified to revoke the condition of the apology. 
"The post was deleted even before she was arrested. But the meme is still doing rounds. It is not like she was the only one who shared it. To place her in judicial custody for 14 days for this is a grave infringement of fundamental rights!", urged Senior Advocate N. K. Kaul for Sharma.

Friday, May 10, 2019

Tri HC | Purpose of demand notice under S. 138 NI Act – not to demand payment, but to inform the party of broken contract and liability to pay

Tripura High Court: The Bench of Arindam Lodh, J. allowed a revision petition under Section 397 read with Section 401 of Code of Criminal Procedure, 1973 and set aside the lower courts’ order acquitting the accused in a case filed under Section 138 of the Negotiable Instruments Act, 1881.
Petitioner herein (complainant before lower court) gave a loan of Rs 3.6 lakhs to the accused in three installments against which the respondent issued three post-dated cheques. When the petitioner tried to encash these cheques, they were dishonoured with the remark ‘insufficient funds’ in the account of the respondent. The petitioner served a statutory demand notice upon the respondent which went unresponded. Thereafter, he filed a complaint in the Trial Court charging the accused for dishonour of cheque. The Trial Court dismissed the case holding that the demand notice was invalid as it did not bear the signatures of petitioner’s Advocate.  Respondent’s acquittal was affirmed and upheld by the learned Sessions Judge. Aggrieved thereby, the instant revision petition was filed.
The Court opined that the decisions arrived at by the lower courts were perverse and unwarranted on both the points of facts and law, hence not sustainable. It was held that Section 138 proviso (b) does not stipulate that the notice is to be sent through an advocate. Further, each page of the demand notice had been signed by the complainant himself, and thus it was a valid notice in terms of Section 94 of the NI Act. It was observed that the object of notice of dishonor of cheque to endorser is not to demand payment, but to indicate to the party notified that his contract arising on the negotiable instrument has been broken and he is liable for payment.
Reliance was placed on Sampelly Satyanarayana Rao v. Indian Renewable Energy Development Agency Ltd.2016 SCC Online SC 954, where it was held that a post-dated cheque issued as security towards payment of installments of a loan transaction falls within the purview of Section 138 NI Act. In view thereof, it was held that the respondent was liable under Section 138 of NI Act, and he was ordered to pay a fine of Rs 3,60,000 to the petitioner as compensation, failing which, he would be sentenced to simple imprisonment of six months.[Subal Chandra Ghosh v. State of Tripura, 2019 SCC OnLine Tri 134, decided on 25-04-2019]

Sunday, May 5, 2019

Courts Cannot Decide Eligibility And Essential Qualifications For Employment: SC

The Supreme Court observed that a Court, while exercising its power of judicial review, cannot decide what is best for the employer and interpret the conditions of the advertisement contrary to the plain language of the same.
The essential qualifications for appointment to a post are for the employer to decide, said the bench comprising  of Justice Arun Mishra and Justice Navin Sinha while setting aside a Bombay High Court order.
The High Court had, in the impugned order, interpreted an advertisement issued by Maharashtra Public Service Commission to hold that candidates possessing the requisite years of experience in research and development of drugs and testing of the same, are also eligible to be considered for appointment to the post of Assistant Commissioner (Drugs) and Drug Inspectors.
The court, observed that it is the employer who is best suited to decide the requirements a candidate must possess according to the needs of the employer and the nature of work. It said:
"The employer may prescribe additional or desirable qualifications, including any grant of preference. The court cannot lay down the conditions of eligibility, much less can it delve into the issue with regard to desirable qualifications being at par with the essential eligibility by an interpretive re-writing of the advertisement. Questions of equivalence will also fall outside the domain of judicial review. If the language of the advertisement and the rules are clear, the Court cannot sit in judgment over the same. If there is an ambiguity in the advertisement or it is contrary to any rules or law the matter has to go back to the appointing authority after appropriate orders, to proceed in accordance with law"
In this case, the bench observed the interpretation of the terms of the advertisement as made by the High Court both regard to the posts of Assistant Commissioner (Drugs) and Drug Inspectors cannot be upheld. The term "preference" mentioned in the advertisement cannot be interpreted to mean that merely because a candidate may have had the requisite experience of testing in a research and development laboratory he/she possessed the essential eligibility and had a preferential right to be considered for appointment, the court added.

Friday, May 3, 2019

Give 10 Acres Land to Girl, Bombay HC Tells Lawyer Who Married a 14-year-old

The Bombay High Court on Thursday directed a 56-year-old lawyer, facing a case of rape for marrying a 14-year-old girl, to give ten acres of land to her and ensure she finishes her education.

A division bench of justices Ranjit More and Bharati Dangre was hearing a petition filed by the lawyer seeking that the case registered against him be quashed. He argued that the girl, now 18 years old and hence an adult, had consented to continue the marriage and had no objection if the case was quashed.


The lawyer was arrested by the city police in December 2017 for rape and other offenses under the IPC and Protection of Children from Sexual Offenses Act and Prohibition of Child Marriage Act. The girl was 14 when the accused, then 52, "married" her in 2014.

In her complaint, the girl had claimed she was forced into the marriage by her grandparents. The lawyer was in judicial custody for around 10 months and then released on bail. The girl turned 18 on September 17, 2018, after which the lawyer moved the High Court, seeking quashing of the case.


Additional public prosecutor Aruna Kamat Pai opposed the petition, saying quashing such a case would set a bad precedent.

The judges directed the accused to open a fixed deposit (FD) account with Rs seven lakh for the girl, ensure that she finishes her education, and transfer ten acres of land in her name in his village. The court adjourned the case to September 2019 when it will see if the order has been complied with, and decide whether to quash the case.

Limitation Act Applicable To Suits, Appeals, Application Filed In Courts, Not Before Statutory Authorities: SC

The Supreme Court has observed that the suits, appeals and applications referred to in the Limitation Act, 1963 are suits, appeals and applications which are to be filed in a Court, and not before a statutory authority.
The bench comprising Justice Ashok Bhushan and Justice KM Joseph held that the 'Commissioner' under Hindu Religious Endowment Charitable Act, 1959 while hearing the appeal under Section 69 of Act, is not a 'Court' within the meaning of the Limitation Act.
It also held that the Commissioner while hearing of the appeal under Section 69 of the Act, 1959 is not entitled to condone the delay in filing appeal, since, provision of Section 5 shall not be attracted by strength of Section 29(2) of the Act. Section 5 of the Limitation Act is not applicable as per the scheme of HRCE Act, the bench said.


In Ganeshan vs. The Commissioner, the Tamil Nadu Hindu Religious And Charitable Endowments Board, the bench was considering an appeal against the Madras High Court judgment that held that in appeal proceedings before the Commissioner Section 5 of the Limitation Act is fully applicable, and the Commissioner has power to condone the delay in filing appeals under Section 69 of HRCE Act. Referring to various earlier judgments, the bench culled out these principles. It observed:
  • The suits, appeals and applications referred to in the Limitation Act, 1963 are suits, appeals and applications which are to be filed in a Court. 
  • The suits, appeals and applications referred to in the Limitation Act are not the suits, appeals and applications which are to be filed before a statutory authority like Commissioner under Act, 1959. 
  • Operation of Section 29(2) of the Limitation Act is confined to the suits, appeals and applications referred to in a special or local law to be filed in Court and not before statutory authorities like Commissioner under Act, 1959. 
  • However, special or local law vide statutory scheme can make applicable any provision of the Limitation Act or exclude applicability of any provision of Limitation Act which can be decided only after looking into the scheme of particular, special or local law.
Two of the issues before the bench in this case was (1) whether applicability of Section 29(2) of Limitation Act is with regard to different limitation prescribed for any suit, appeal or application to be filed only in a Court or Section 29(2) can be pressed in service with regard to filing of a suit, appeal or application before statutory authorities and tribunals provided in Special or Local Laws? (2) Whether the Commissioner while hearing the appeal under Section 69 of Act 1959 is entitled to condone a delay in filing an appeal applying the provisions of Section 5 of the Limitation Act, 1963?. Applying the above principles to this case, the bench held:
The applicability of Section 29(2) of the Limitation Act is with regard to different limitations prescribed for any suit, appeal or application when to be filed in a Court. Section 29(2) cannot be pressed in service with regard to filing of suits, appeals and applications before the statutory authorities and tribunals provided in a special or local law. The Commissioner while hearing of the appeal under Section 69 of the Act, 1959 is not entitled to condone the delay in filing appeal, since, provision of Section 5 shall not be attracted by strength of Section 29(2) of the Act.


Tuesday, April 30, 2019

Section 498A IPC: Complaint Need Not Be Filed By The Woman Subjected To Cruelty Herself: SC

The Supreme Court has held that the Section 498A of the Indian Penal Code does not contemplate that complaint for offence under Section 498A should be filed only by women, who is subjected to cruelty by husband or his relative.
In Rashmi Chopra vs. State of UP, the bench comprising Justice Ashok Bhushan and Justice KM Joseph was considering the submission that since complaint is not made by the woman, but filed by her father, it is not maintainable. It was dealing with an appeal against Allahabad High Court order refusing to quash the summons issued by the Magistrate in the complaint against husband and relatives, file under Section 498A and Section 3/4 of Dowry Prohibition Act, which also alleges other IPC offences.
The bench, referring to Section 498A IPC, rejected this contention and observed:
"There is nothing in Section 498A, which may indicate that when a woman is subjected to cruelty, a complaint has to be filed necessarily by the women so subjected. A perusal of Section 498A, as extracted above, indicates that the provision does not contemplate that complaint for offence under Section 498A should be filed only by women, who is subjected to cruelty by husband or his relative. We, thus, are of the view that complaint filed by respondent No.2, the father of Vanshika cannot be said to be not maintainable on this ground."
The crux of the complaint filed by the father is that the husband of his daughter started harassing her by "demanding additional dowry of one crore". There being no specific allegation regarding any one of the applicants except common general allegation against everyone clearly indicate that application under Section 156(3) Cr.P.C. was filed with a view to harass the applicants, said the court. The court also noted that, in divorce proceedings the couple had settled all issues between them including division of properties at the time when divorce proceedings were in progress at Michigan.
The bench finally quashed the complaint as well as summoning order insofar as offence under Section 498A IPC and Section 3/4 of Dowry Prohibition Act. However, the court said that the complaint shall proceed insofar as offence under Sections 323, 504 and 506 of IPC against husband and two other persons only.

Monday, April 29, 2019

Legal Principles Governing Suspension Of Conviction Cannot Be Applied To Suspend The Sentence: SC

READ JUDGMENT

The Supreme Court has set aside a High Court judgment which applied principles governing suspension of conviction to reject a plea seeking suspension of execution of sentence. N. Ramamurthy was convicted by the Trial Court under various provisions of Indian Penal Code and also Prevention of Corruption Act. The prosecution case against him was that he entered into a criminal conspiracy and committed several acts of breach of trust, cheating, forgery, falsification of accounts and misappropriation of funds. The Trial Court found that he had forged the signatures of many customers, had created withdrawal slips with dishonest intention, and had misappropriated the amount of various depositors from their accounts.

While filing an appeal before the Karnataka High Court, he also moved an application seeking suspension of execution of sentence. Though appeal was admitted, the High Court dismissed the plea seeking suspension of execution of sentence on the ground that "the sentence of imprisonment all put together comes to 45 years of rigorous imprisonment (for all the proven guilt put together)". It also referred to judgment in Navjot Singh Sidhu vs. State of Punjab and observed that the Appellate Court could suspend the order of conviction only when the convict specifically shows the consequences that may follow if the order is not suspended or stayed.


The Apex Court bench comprising Justice Abhay Manohar Sapre and Justice Dinesh Maheshwari observed that the High Court erred in observing that sentence comes to 45 years of imprisonment. It noted that the sentences were ordered to run concurrently by the Trial Court and hence, the maximum period of imprisonment is 7 years apart from certain default stipulations, which would come in operation only if the fine is not paid. It also observed that the High Court proceeded on entirely irrelevant consideration with reference to the principles related with the prayer for suspension of the operation of the order of conviction that such a suspension could be granted only in rare and exceptional cases and for special reason. "With respect, the High Court appears to have missed out the fact that the prayer on behalf of the appellant had only been for suspension of execution of sentence and not for stay or suspension of the operation of the order of conviction. Hence, reference to the decision in Navjot Singh Siddhu (supra) had been obviously inapt on the facts and in the circumstances of the present case." Referring to judgment in K.C. Sareen v. CBI, Chandigarh, the bench observed that, ordinarily, the superior Court should suspend the sentence of imprisonment in the matters relating to the offence under the PC Act, unless the appeal could be heard soon after filing. The bench then remanded the matter to High Court for it to consider afresh.

Sunday, April 28, 2019

Sec 498A & 306 IPC: Incidents Which Happened Much Before Wife's Death Can't Be Treated As Conduct Which Drove Her To Suicide: SC

The Supreme Court has observed that the incidents which had taken place between husband and wife much before latter's death by suicide could not be treated as the conduct which drove her to commit suicide.
Jagdishraj Khatta, was convicted by theHimachal Pradesh High Court under Sections 498A and 306 of the Indian Penal Code, by overturning the acquittal recorded by the Trial Court. Khatta was convicted by the High Court relying on (1) the testimonies of the relatives of the deceased that the accused husband acted in a cruel manner against the deceased in front of her relatives, and (2) the letter allegedly written by the deceased around the time of her death to her parents.

The bench comprising Justice NV Ramana and Justice S. Abdul Nazeer observed that the incidents narrated by the relatives had taken place much before the deceased's death. It said:
"As the High Court itself indicated somewhat contradictorily, reliance on the instances testified to by the witnesses would not be appropriate as the said incidents had taken place much before the deceased's death and could not be treated as conduct which drove the deceased to commit suicide."
The High Court had also observed that all those incidents had taken place much before the commission of the suicide by the deceased and, therefore, they cannot be treated as the immediate cause of provocation for the deceased to take the extreme step.
As regards the reliance placed on letter, the bench agreed with the accused contention that the letter has not been proved to have been written by the deceased and is surrounded by suspicious circumstances. The fact that the deceased had never written any other letter to her family after her marriage but had rather been in touch with her relatives through the telephone further strengthens the case of the appellant, the bench added.
Setting aside the High Court judgment, the bench restored the Trial Court order of acquittal.


Saturday, April 27, 2019

Mere Abuse In A Filthy Language Does Not Attract Offence Of Criminal Intimidation U/s 506 IPC: SC

The Supreme Court has observed that mere act of abusing a person in filthy language does not satisfy the ingredients of the offence of Criminal Intimidation (Section 506 IPC).
The bench comprising Justice Ashok Bhushan and Justice KM Joseph was concerned with an appeal filed by one Vikram Johar against the High Court and the Trial Court orders refusing to discharge him from a criminal case.

The complaint was that Johar, with two or three other unknown persons, one of whom was holding a revolver came to the complainant's house and abused him in filthy language and attempted to assault him and when some neighbours arrived there the accused and the other persons accompanying him fled the spot. 
The accused's version about the incident was that, as a surveyor he had given adverse reports regarding the fire claim of the company, and so the complainant due to annoyance and to teach a lesson to him has filed the complaint. It was urged that ingredients of offence under Sections 504 and 506 are not made out on the reading of the complaint.

The above allegation taking on its face value does not satisfy the ingredients of Sections 504 and 506, said the bench. The court also said that while considering the discharge application, the Court is to exercise its judicial mind to determine whether a case for trial has been made out or not.
Referring to Fiona Shrikhande Vs.State of Maharashtra, the bench said:
"The intentional insult must be of such a degree that should provoke a person to break the public peace or to commit any other offence. The mere allegation that appellant came and abused the complainant does not satisfy the ingredients as laid down in paragraph No.13 of the judgment of this Court in Fiona Shrikhande (supra).
It also referred to judgment in Manik Taneja vs. State of Karnataka, in which it was held that mere fact that the allegation that accused had abused the complainant does not satisfy the ingredients of Section 506.
In order to attract Section 506 IPC, the court, referring to Ratanlal & Dhirajlal on Law of Crimes, 27th Edition, said that the the prosecution must prove: 
(i) That the accused threatened some person.
(ii) That such threat consisted of some injury to his person, reputation or property; or to the person, reputation or property of some one in whom he was interested;
(iii) That he did so with intent to cause alarm to that person; or to cause that person to do any act which he was not legally bound to do, or omit to do any act which he was legally entitled to do as a means of avoiding the execution of such threat.
Allowing the appeal, the bench discharged Johar.

Thursday, April 25, 2019

No right to be in office, SC tells Assam chief secretary

The Supreme Court on Thursday gave a dressing-down to the Assam chief secretary for his submission that the state government is not bound by any decision of foreigners tribunals declaring a person an illegal migrant, saying he has “no right to continue in office”.
Assam chief secretary Alok Kumar, who was present in the court, had to face the ire of the bench, comprising Chief Justice Ranjan Gogoi and Justices Deepak Gupta and Sanjiv Khanna, for contending that the decision of foreigners tribunals might not be final and might not be accepted by the authority.

“This man does not know what he is saying. Does he deserve to be chief secretary. We are going to issue notice to him for making slanderous statements against the law and misleading the court. You have no right to continue in office,” the bench said.

“The opinion of foreigners tribunal may or may not be accepted by the referral authority. Fresh reference may be initiated against such proceeded person and fresh notices may be issued by the tribunal,” the state government said in its affidavit which was strongly objected to by the bench. The chief secretary apologised and told the court that a fresh affidavit will be filed. The court also slammed the Assam government for its failure to detect illegal Bangladeshi migrants in the state and expressed concern over their participation in the electoral process after obtaining voter cards. It also pulled up the state government for seeking release of those foreigners who had spent over five years in detention centres on execution of bond.

The bench got livid after hearing chief secretary Alok Kumar’s contention and said, “You are the government but you are not following the Constitution and law and you expect court to pass illegal order to allow such people to live in the country who are otherwise not entitled.” As per the Assam government, there are more than one lakh Bangladeshi migrants in the state and only 900, traced so far, have been living in different detention centres.

Solicitor General Tushar Mehta, appearing for the state, informed the court that after holding consultation with the Centre, the government had decided to release ‘foreigners’ who had spent more than five years in detention centres on condition that they would report to police every week.
“First those people should not live in detention centres at all and they should be deported. You have detected only 900 out of more than one lakh people who were declared foreigners. They have now mingled with the local population and most of them are on the electoral list,” the bench observed.

Once Divorce Is Granted, Relief Can't Be Sought Under Domestic Violence Act: Bombay HC

The Bombay High Court has held that once a decree of divorce has been granted, relief cannot be sought by the wife under the Domestic Violence Act.
Justice MG Giratkar was hearing a criminal revision application filed by a 42-year-old woman from Nagpur who challenged a judgment of the Judicial Magistrate First Class dated August 20, 2015. In the said judgment, the applicant wife's application under Sections 12 and 18 of the Protection of Women from Domestic Violence Act, 2005 was rejected.
Case Facts
The applicant got married to respondent husband on July 15, 1999. The couple had two children, but the respondent husband filed a petition for restitution of conjugal rights before the family court. However, the matter was amicably settled and they started living together again.

Thereafter, the respondent converted the petition for restitution of conjugal rights into a divorce petition under Section 13 of the Hindu Marriage Act. Family Court allowed the said petition and granted divorce on June 30, 2008. 
In 2009, the application under Sections 12 and 18 of the DV Act was filed by the applicant alleging domestic violence on the part of the respondent husband. The said application was resisted by the respondent on the ground that at the time of filing application, there was no domestic relation. She was not residing with him. She was not a wife in view of the divorce granted, therefore, her application is liable to be rejected. 
The JMFC, Nagpur, dismissed the said application by judgment dated August 20, 2015. Then an appeal was filed before the Additional Sessions Judge, Nagpur, who also recorded in his findings that there was no domestic relationship and, therefore, the applicant is not entitled to relief under the DV Act.
Judgment
Adv AA Ghonge appeared on behalf of the applicant and Adv RN Sen appeared for the respondent husband.
Ghonge submitted that even though her client is a divorcee, she is entitled to relief under the said Act. She placed heavy reliance on the judgment of the Supreme Court in Juveria Abdul Majid Patni vs. Atif Iqbal Mansoori and Anr.
However, the court clarified that the said judgment had been looked at by another bench of the Supreme Court in the case of Inderjit Singh Grewal vs. State of Punjab and Anr, the apex court had found that in the said case, domestic violence took place and an FIR was registered under S.498A and 406 of IPC against the husband and his relatives. Then the wife obtained an ex parte "khula" (divorce) under the Muslim Personal Law from the Mufti and filed a petition under S. 12 of the DV Act, hence. The apex court held that the wife's petition is maintainable.
In the present instance, the court observed-
"In the present case, the applicant is not the wife from the date of decree of divorce i.e. from 30th June 2008 and, therefore, there is no relationship as husband and wife between them at the time of filing of the application." 
After examining a few other judgments of the high court, Justice Giratkar noted-
"There is no dispute that the applicant/wife is no more wife from the decision of family Court in dated 30th June, 2008. The said decision is not set aside by the appellate Court till date. Therefore, it is clear that at the time of filing of petition under the provisions of DV Act in the year 2009, the applicant was not the wife and, therefore, the petition itself was not maintainable."

Finally, referring to a judgment of the Delhi High Court in the case of Harbans Lal Malik vs Payal Malik, the court said-
"In the present case, there was no domestic relation on the date of filing of application under the DV Act and, therefore, the applicant/wife is not entitled for any protection under the said Act."
In the said judgment, the Delhi High Court had observed-
"It is apparent that in order to make a person as respondent in a petition under Section 12, there must exist a domestic relationship between the respondent and the aggrieved person. If there is no domestic relationship between the aggrieved person and the respondent, the Court of MM cannot pass an order against such a person under the Act."
Thus, the revision application was dismissed.

Wednesday, April 24, 2019

Drivers using mobile four times more likely to have accident: WHO report

Drivers who use mobile phones while at the wheel are four times more likely to be involved in accidents, according to the World Health Organisation. It’s far more dangerous if drivers are texting as they take their eyes off the road, posing a much higher risk for all road-users.
According to the WHO, there has been no conclusive evidence to show that hands free devices are safer than hand-held phones indicating how distraction in any form increases manifold the chances of accidents.

Several studies across the globe suggest that drivers take their eyes off the road for an average of 4.6 seconds out of every six seconds while texting. This means a driver would cover a football field without looking at the road while driving at a speed of 80-90kmph and texting.
The WHO says the use of a mobile phone can impair the performance of several driving tasks, leading to longer reaction times to detect and respond to unexpected driving-related events, impaired ability to maintain correct lane position and slower braking reactions with more intensive braking and shorter stopping distances.

The recent death of a child in Delhi after being run over by his uncle who was using his mobile phone while driving has once again pointed to the need of a stronger law to curb the menace, which has been identified as one of the major contributors to road deaths worldwide.
While developed countries identified the use of mobile phones as a major risk factor for road fatalities nearly 7-8 years ago, it was only in 2016 that the Indian government took note of this emerging crisis. According to the annual road accident data published by the road transport ministry, while 2,138 people were killed in 2016 in accidents caused due to use of mobile phones, 4,746 were injured.
The deaths increased to 3,172 in 2017 and the number of people injured also rose to 7,830.

HC orders inventory of FC5 potatoes in cold storages

Upon request by the US food and beverages giant PepsiCo, the Gujarat high court has ordered the court commissioners appointed in the case to visit cold storages in Banaskantha and Sabarkantha district to take stock and prepare inventory of special potatoes that the company holds sole right to grow.

On April 11, a civil court in Deesa town appointed a court commissioner on PepsiCo’s complaint of infringement on its exclusive rights under the Protection of Plant Varieties and Farmers’ Rights Act, 2001 by two farmers Fulchand and Suresh Kachchhawa . The court ordered the court commissioner to visit Kachchhawa’s premise in village Malgadh near Deesa. The court had not ordered for a visit to cold storages, where the company claimed that the potatoes were stored.
The company was not satisfied with the civil court’s order in which it did not order the commissioner to visit the cold storages. It approached the HC, which on April 18 ordered the court commissioner to visit two cold storages named Tirupati Balaji Cold Storage in Deesa of Banaskantha and Harsol near Himmatnagar in Sabarkantha.

The HC has ordered for photographs of the infringing products, type FL-2027 potatoes, registered under trademark of FC5, lying in the cold storages and further to take stock and inventorize the products. the HC ordered to appoint a separate court commissioner for visit to cold storages in Sabarkantha district. The court commissioners have been ordered to work simultaneously on the same day without prior notice to the farmers.

TikTok ban lifted by HC after co assures it of regulation

The Madurai bench of Madras high court on Wednesday vacated its April 3 interim order prohibiting downloading of TikTok after the Chinese company submitted that it had put moderating mechanisms in place to regulate obscene content. However, the HC warned that the company would be charged with contempt of court if the regulatory mechanisms were not found in place.
Senior counsel Isaac Mohanlal representing TikTok argued that the company followed all laid down standards and had better privacy provisions than other social media platforms. It also told the division bench of justice N Kirubakaran and justice S S Sundar that it was only an intermediary platform and did not upload content.

When senior counsel claimed that TikTok had not violated any laws, the court said it was only because there were no laws to address the issues concerning social media platforms, and cited instances where the Parliament took several years to pass legislation.

The court also took note of submissions by amicus curiae Arvind Datar, who said that banning the app -- which is only an intermediary website -- cannot be the solution and cited previous judgments of the Supreme Court and the guidelines of the Information Technology Act. “An intermediary shall not be liable for any data not uploaded by them. There is no obligation on their part for pre-censorship,” said senior counsel citing Supreme Court judgments.
The amicus curiae also said that he met with the officials of the ministry of electronics and information technology and, so far, the Union government had blocked 14,220 websites between 2010-2018 and that this was the first case in the country on an intermediary website.

‘Insurance firm can’t decide line of treatment’

Only doctor and not the insurance company can decide the line of treatment to give to a patient. This observation was made by a consumer court here, which ordered the insurance firm and third-party administrator (TPA) to pay insured amount to a citizen. Complainant Bhanvarlal Purohit, owner of a farsan shop, claimed an insurance amount of Rs 19,457 after his wife Pushpa was discharged from hospital in January 2017. Pushpa was suffering from cervical spondyolis for which she underwent three-day hospital treatment.

A month later TPA Paramount Health Services and Insurance rejected Purohit’s claim on grounds that “no active line of treatment was given during hospitalization”. Purohit’s lawyer Montu Pandya said, “During hospitalization, the doctor prescribed tests, medicines and consulting a physician. But the firm claimed that such treatment was not needed to treat cervical spondylosis and therefore they rejected the claim.”

Purohit then approached the Vadodara District Consumer Disputes Redressal Forum in August 2018 against insurer National Insurance Company and the TPA. He submitted the discharge report along with doctor’s certificate that mentioned Pushpa’s health condition and the treatment offered to her. However, the court ruled that ‘No insurance company can decide the line of the treatment to be given to a patient, only doctors can decide about the treatment.”
The forum upheld the evidence and observed that the TPA has given its opinion after examining the case papers only. “Opinion of the doctor who treated patient is more truthful than the TPA’s opinion which is based on examination of case papers,” the forum stated.
The insurance has been asked to reimburse Bhanvarlal’s claim along with 8% interest and compensation of Rs 3,000.

Tuesday, April 23, 2019

‘Bride’ means trans woman too, rules Madras HC

In a landmark verdict, Madras high court has held that the term ‘bride’ mentioned in the Hindu Marriage Act would also mean transgender woman, and that it would not just refer to a born-woman on her wedding day.

The court also ordered the Tamil Nadu government to issue an order banning sex reassignment surgeries on intersex infants and children.

Justice GR Swaminathan, quoting from the Supreme Court judgments and epics like Ramayana and Mahabharata, said the expression ‘bride’ in the Hindu Marriage Act could not have a static or immutable meaning.

Holding that the expression ‘bride’ would have to include not only a woman, but also a trans woman, the judge directed the authorities to register a marriage between Arun Kumar and Sreeja, a trans woman. They had moved court after the registration department refused to register their marriage, held on October 31 at a temple in Tuticorin, and issue a certificate.

In the process, Justice Swaminathan also comprehensively rejected the government’s contention that the registrar of marriages had powers to refuse registration and stated that since one of them was a transwoman, they did not meet the statutory requirement of the Section 5 of the Hindu Marriage Act, as the term ‘bride’ can only refer to a 'woman on her wedding day.' In this regard, the judge referred to landmark judgment by the Supreme Court, which upheld transgender persons’ right to decide their self-identified gender.

Sunday, April 21, 2019

Driving In High Speed In A Very Busy Road Can Be Said To Be Rash & Negligent: Bombay HC

The Bombay High Court has observed that when a person drives his vehicle in a very high speed, in spite of knowing the fact that it is thickly populated and very busy road, it will be one of the shade of driving the vehicle in rash and negligent manner.
The Trial Court had convicted Popat Bhaginath Kasar under section 304A and Section 279 of the Indian Penal Code. On his appeal, the appellate court acquitted him for the offence under Section 279 of the Indian Penal Code, but affirmed the conviction under Section 304A IPC. The vehicle had hit a seven year old boy who died on the spot.
In his revision petition, Justice VM Deshpande observed that though the speed alone is not a criteria to reach to the conclusion about the rashness on the part of the driver of the offending vehicle, it will be one of the factor as an indicator to show that the driver was driving the vehicle in most rash and negligent manner if he is unable to control the speed of the vehicle.
The court also noticed that it has been brought on record that road on which the incident has occurred, is full of traffic. It said: 
"As seen from the evidence of the two prosecution witnesses, the incident in question has occurred, though at the outskirts of Ahmednagar city, it was thickly populated area and there was heavy rush of various vehicles. In that view of the matter, it was expected from a driver not to drive the vehicle at very high speed at such place. When the driver, inspite of knowing the fact that the spot of the occurrence is thickly populated and very busy road, still allows himself to drive the vehicle in very high speed, in my view, it will be one of the shade of driving the vehicle in rash and negligent manner. In the incident, had the driver at the relevant time, was driving the vehicle in not in rash and negligent manner, life of a boy, namely Neeraj, aged about seven years, could have been saved. Due to the rash and negligent act on the part of the Applicant, his precious life was cut-short."
Dismissing the revision petition, the court said:
In my view, driving the vehicle in a high speed in the area which is thickly populated and having too much movements, is one of the shade by which it could be said that it is a rash and negligent driving.

Saturday, April 20, 2019

Bom HC | Divorced wife cannot file application under Domestic Violence Act; application filed under Ss. 12 and 18 rejected in absence of “domestic relationship”

M.G. Giratkar, J. refused to interfere with an order of the Judicial Magistrate as confirmed by the Sessions Judge, whereby the application filed by the applicant under Section 12 and 18 of the Protection of Women from Domestic Violence Act, 2005 was dismissed.

The applicant married to the respondent in 1999, However, a decree of divorce under Section 13 of the Hindu Marriage Act, 1955 had been passed by the family court in 2008 at the instance of the husband. The application under the DV Act was filed by the applicant in 2009, i.e., subsequent to the grant of divorce. The respondent resisted the application on the ground that there was no “domestic relationship” between them and therefore any application under DV Act was not maintainable. The application was rejected by the Judicial Magistrate as well as the Sessions Judge. Aggrieved thereby, the applicant filed the present revision application.

Amruta A. Ghonge, Advocate led arguments for the applicant. Per contra, R.N. Sen, Advocate appearing for the respondent, resisted the application.

After perusing a conspectus of decisions of the Supreme Court as well as High Courts, the Court came to the conclusion that no relief could be granted to the applicant. It was observed: “In the present case, divorce was granted by the family Court vide order dated 30-06- 2008. Application under the DV Act was filed in the year 2009. At the time of filing of application under the DV Act, the applicant was not the wife. There was no domestic relationship between them. Hence, orders passed by the learned JMFC, Nagpur and maintained by Additional Sessions Judge, Nagpur in Criminal Appeal No. 235 of 2015 are perfectly legal and correct.” In such view of the matter, the revision application was dismissed. [Sadhana v. Hemant, Criminal Revision Application No. 121 of 2018, decided on 18-04-2019]

Tuesday, April 16, 2019

Election Poll code not applicable to cooperatives: HC

In an important order, the Gujarat high court on Tuesday held that the model code of conduct (MCC) for elections cannot be applied to a cooperative society since it is not a government instrumentality.
A bench of Justice Harsha Devani and Justice Bhargav Karia quashed the district election officer’s order cancelling a special general body meeting that was to be convened by the Mehsana District Co-operative Milk Producers Union Ltd (Dudhsagar Dairy).
According to the dairy’s counsel Dipen Desai, the dairy set an agenda on March 8 to convene a meeting to amend its bylaws. On March 10, it decided to convene the meeting on March
24. The general election was announced on March 10 and the model code of conduct came into force.
On March 16, the district collector received a complaint that the dairy’s decision taken on March 10 to convene a meeting was a violation of the MCC. The district collector sought the district registrar’s opinion on March 19 and stopped the dairy from going ahead with its programme citing the MCC.
The dairy approached the HC contending that the MCC is not applicable to it, being a cooperative, because it does not avail of government funds.

HC scraps govt’s ₹10k limit for support to students

In a major beneficiary boost to Gujarat’s private schools, the Gujarat high court has removed the ceiling of Rs 10,000, the maximum amount that can be reimbursed by the state government to private school for expenditure incurred on a primary student admitted on free seat quota under the RTE Act.
Two associations of nearly 7,000 private schools had challenged a July 2015 government resolution fixing a cap on reimbursement by the government. This ceiling was later increased to Rs 13,500.
The high court has ruled that the government cannot fix such an amount under the provisions of section 12(2) of the Right to Education (RTE) Act. Each non-granted and private school is mandated to admit 25% students from economically weaker section under the RTE laws. The high court has clarified that the non-granted schools are entitled to reimbursement of an amount equal to the amount they actually charge from other students or the amount the government spends per child, whichever is less. It further said that the mode of reimbursement could be prescribed by the state government. The school associations’ case got strengthened when the state government itself admitted that it had spent Rs 11,658 per student in 2013-14, Rs 14,477 in 2014-15 and Rs 15,607 in 2015-16. Since the government had spent more than the maximum amount fixed for private schools for reimbursement, it could not have issued the GR fixing the reimbursement amount, the high court observed. With observation that the government cannot snatch private school’s entitlement to a certain amount by issuing a GR, Justice Bela Trivedi quashed the resolution. The private schools had also challenged the issues regarding non-payment of hostel, lodging, boarding, mess transportation etc, but the state government assured to resolve the issues in September 2016. Therefore the petitioners did not press these demands.
On the dispute, president of Akhil Gujarat Rajya Shaala Sanchalak Mahamandal, Narayanbhai Patel, said, “Our demand before the government was that the schools should be reimbursed the amount local district panchayat and municipal corporation spend per child We had made several representations before the government but to no effect. Therefore we approached the high court.”

Bangladeshi actor Ferdous Ahmed was forced to leave India

MHA Cracks Whip For Visa Rule Violation

Bangladeshi actor Ferdous Ahmed was forced to leave India on Tuesday after he was ordered by the ministry of home affairs to exit the country for campaigning for the Trinamool Congress on Sunday.
“Ferdous Ahmed left the country this (Tuesday-16/04/2019) afternoon after MHA asked the actor to leave India.” 
MHA has sought a report from the West Bengal government and the local Foreigner Regional Registration Office, prompting FRRO to probe whether the actor had violated work visa rules by campaigning for TMC’s Raiganj candidate Kanaia Lal Agarwal.
Bangladesh deputy high commission officials confirmed that Ahmed’s visa did not allow him to take part in political campaigns. The officials had called the actor on Sunday itself to inquire about the issue after his campaigning sparked a political stir. Ahmed reportedly replied that he was shooting near Raiganj on Sunday afternoon and “could not turn down TMC’s request for campaigning”.



Monday, April 15, 2019

Regularization Obtained By Misrepresenting Facts Cannot Be Sustained; SC Upholds Termination Of A 'Chowkidar'

Read Judgment
Holding that the appointment of a Chowkidar on regular basis was invalid, the Supreme Court observed an order of regularization obtained by misrepresenting facts, or by playing a fraud upon the competent authority, cannot be sustained.
Karamjit Singh was appointed as a Chowkidar on daily wages by the Punjab Urban Planning and Development Authority on 1st December 1995. His name was on the muster rolls till 31.03.1997. The Government of Punjab revised the Policy for regularization of work-charged / daily wage and other categories of employees who had completed 3 years of service. Even though he had only worked for a few months, Singh's name got into the list and was regularized w.e.f. 06.11.2001.
Some other employees challenged the regularization and the High Court directed the department to look into the matter. In the enquiry, it was found that Singh had not completed the requisite period of 3 years' service prior to 22.01.2001. Consequently, the Chief Administrator annulled the regularization.
Singh challenged this termination before Industrial Tribunal. As the tribunal dismissed his plea, he approached the High court which held that the department ought to have issued a chargesheet, conduct an enquiry against a permanent employee, before terminating or dismissing him from service under the Regulations. It observed that "rightly or wrongly" Singh's services had been regularized.
Setting aside the High Court order, the bench observed that Singh was disentitled from getting the benefit of a regular appointment with the Authority, in the absence of fulfilling the pre-requisite requirement. The bench observed:
"The appointment of the Respondent on regular basis was invalid since the Respondent did not have the pre-requisite experience of 3 years' continuous service prior to 22.01.2001. The Respondent had sought to secure regularization on the basis of interpolation in the final list of employees recommended for regularization. Such an appointment would be illegal and void ab initio, and cannot be sustained."