High Court of Delhi

Atul Jain v. Central Bureau of Investigation

MANU/DE/0365/2017

16.02.2017

Criminal

Evidence by video conferencing in open court should be only if witness is in a country having extradition treaty with India

Aggrieved by order passed by Special Judge disposing of an application filed by CBI seeking permission to examine some foreign based witnesses through video conferencing, Petitioners prefer present petitions. In the application, CBI prayed that statements of three witnesses, be permitted to be examined through video conferencing. Trial Court vide impugned order noted that a perusal of record revealed that, Court had already issued process to the three witnesses on several occasions and summons were sent through concerned Ministry of Home Affairs, Government of India along with the written consent sent by the CBI to incur all expenses of summoning and stay of the above witnesses in India, in connection with their examination in this case however, three witnesses have not given their consent to come and depose in India. Thus, relying upon decision of Supreme Court in State of Mahrashtra vs. Dr. Praful B. Desai, Special Judge allowed the application.

Merely because application was filed after 13 years examination of two witnesses cannot be denied. Plea that there is no extradition treaty with Kenya also rejected for the reason that though Ms.JH is presently in Kenya but she is an Australian citizen and Mr.KJP is also an Australian citizen, presently in Adelaide, Australia. India has an extradition treaty with Australia and thus merely because presently Ms. JH is in Kenya her examination at Kenya through video conferencing cannot be declined.

In Dr. Praful B. Desai, Supreme Court while dealing with issue of examination of witnesses, whose presence cannot be obtained easily noting the provisions of Sections 284 and 285 of Criminal Procedure Act (Cr.P.C.) which permits examination of witnesses on commission, held that recording of evidence by video conferencing also satisfies the object of providing, in Section 273 of Cr.P.C., that evidence be recorded in the presence of the accused. Supreme Court also noted that as a matter of prudence, evidence by video conferencing in open court should be only if the witness is in a country which has an extradition treaty with India and under whose laws Contempt of Court and perjury are also punishable.

As noted, witnesses are both Australian citizens and India has an extradition treaty with Australia. Thus, India having no extradition treaty with Kenya is not relevant to the present case. Finding no merit in objections raised High Court upheld impugned order to the extent it directs examination of witnesses through video conferencing.

Relevant

State of Mahrashtra vs. Dr. Praful B. Desai

Tags : Witnesses Examination Video-conferencing

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Supreme Court

Arjun and Ors. v. State of Chhattisgarh

MANU/SC/0153/2017

14.02.2017

Criminal

Intent and knowledge is must for crime to fall under Section 304 Part I of Indian Penal Code

In present case, Trial Court observed that, Appellants acted with common intention to commit murder of deceased and found that, prosecution has proved guilt of Accused beyond reasonable doubt and convicted Appellants under Section 302/34 of Indian Penal Code, 1860 and sentenced each of them to undergo imprisonment for life and imposed fine and in default of payment of fine to undergo rigorous imprisonment for two years. Aggrieved by verdict of conviction, Accused-Appellants together filed an appeal and another Accused filed a separate appeal before High Court. High Court affirmed conviction of Appellants and sentence imposed by trial court. Aggrieved by conviction and sentence imposed on them, Appellants filed instant appeals by way of special leave.

Evidence clearly establishes that while deceased and other witnesses were cutting the trees, there was exchange of words which resulted in altercation and during the said altercation, Appellants attacked the deceased. Thus, incident occurred due to a sudden fight which, falls under Exception (4) of Section 300 of Indian Penal Code.

Accused, as per version of PW-6 and eye witness account of other witnesses, had weapons in their hands, but sequence of events that have been narrated by witnesses only show that, weapons were used during altercation in a sudden fight and there was no pre-meditation. Injuries as reflected in post-mortem report also suggest that Appellants have not taken "undue advantage" or acted in a cruel manner. Therefore, in the fact situation, Exception (4) under Section 300 of Indian Penal Code is attracted. Incident took place in a sudden fight as such Appellants are entitled to the benefit under Section 300, Exception (4) of Indian Penal Code.

When and if there is intent and knowledge, then same would be a case of Section 304 Part I of Indian Penal Code and if it is only a case of knowledge and not intention to cause murder and bodily injury, then same would be a case of Section 304 Part II Indian Penal Code. Injuries/incised wound caused on the head i.e. right parietal region and right temporal region and also occipital region, injuries indicate that the Appellants had intention and knowledge to cause the injuries and thus it would be a case falling under Section 304 Part I of Indian Penal Code. Conviction of Appellants under Section 302 read with Section 34 of Indian Penal Code is modified under Section 304 Part I Indian Penal Code. As per Jail Custody Certificates on record, Appellants have served 9 years 3 months and 13 days as on 2nd March, 2016, which means as on date Appellants have served 9 years 11 months. On account of facts and circumstances in which offence has been committed, for the modified conviction under Section 304 Part I of Indian Penal Code, sentence is modified to that of period already undergone. Conviction of Appellants under Section 302 of Indian Penal Code read with Section 34 of Indian Penal Code is modified as conviction under Section 304 Part I of Indian Penal Code and sentence is reduced to the period already undergone and these appeals are partly allowed accordingly.

Relevant

Surinder Kumar v. Union Territory of Chandigarh  MANU/SC/0589/1989
: (1989) 2 SCC 217

Tags : Conviction Sentence modification

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Supreme Court

Orissa Industrial Infrastructure Development Corporation v. MESCO Kalinga Steel Ltd. and Ors.

MANU/SC/0154/2017

14.02.2017

Property

Renewal of lease is a privilege and if a tenant wishes to claim privilege, he must do so strictly within the time limited for the purpose

Appeals have been preferred by Orissa Industrial Infrastructure Development Corporation ('IDCO') and also by Jindal Stainless Ltd. aggrieved by impugned judgment passed by High Court of Orissa, thereby directing IDCO to lease out 825.68 acres of land and to enter into a lease agreement with M/s. Mesco Kalinga Steel Ltd. High Court has held that since IDCO has not complied with Clause 18 contained in the policy decision dated 25th January, 1995 as 3 months' notice has not been given, it was not open to resume possession otherwise than in due course of law.

Allotment letter itself contemplated the execution of the lease deed as a condition precedent. As per Section 33(1) and 33(3) of Orissa Industrial Infrastructure Development Corporation Act, 1980 it was necessary to execute lease deed as the Corporation could dispose of land only in manner as provided in law and otherwise also it was so stipulated in the Government order itself. Thus, due to neglect of Mesco, transaction became void and it was not necessary to serve three months' notice to remedy breach. However, in facts of case for several years the breach was not remedied after communication dated 27th October, 1997 till July, 2003.

In instant case, it is apparent that possession had been enjoyed by Mesco without execution of the lease deed. Conduct of IDCO was also not diligent. Notice was served in year 1997 for resumption but thereafter up to July, 2003 nothing was done by either IDCO or Mesco. Not even a single communication has been placed on record by Mesco containing its proposal to remedy breach and on a specific query being made to the learned Counsel appearing for Mesco, they were unable to explain as to what transpired between 1997 and 2003 except a vague submission was made that it was mired in certain litigations which fact has not been even pleaded. Thus, no explanation, good, bad or otherwise has been placed on record for inaction on the part of Mesco. Transaction became void, due to Mesco's own lapse and negligence, and it has forfeited the right to get the lease deed executed. After taking possession, it could not have waited for so many years.

IDCO is a statutory authority and it can act only on basis of written lease deed. The execution of lease deed is necessary and it is in public interest to prevent unauthorized leasing out of property on its behalf. Lease is required to be executed in a prescribed format in the shape of formal document which is sine qua non. In the absence thereof, it would not be permissible to hold that relationship of lessor and lessee came into being.

It is apparent that there is a manner of executing the lease deed with the Corporation. Prescribed form of draft lease deed had been sent by IDCO to Mesco but it failed to execute it. Thus, there was no contract which could have been enforced and it became void due to inaction of Mesco itself. It is a settled law that equity follows the Rule of common law in respect of such contracts. Renewal of lease is a privilege and if a tenant wishes to claim the privilege, he must do so strictly within the time limited for the purpose. This Court has further considered the question where there is no time limit, an application may be made within a reasonable time. If delay is on the part of lessee for renewal arising out of mere neglect on his part and which could have been avoided by reasonable diligence, would not entitle him to claim renewal. Applying the same principle to instant case, it is apparent that the conduct of Mesco was unfair and unpardonable. Conduct disentitled it from indulgence by Court in any manner. No equitable consideration was available with Mesco to invoke the writ jurisdiction for the reliefs sought. Relief granted is not permissible as per law.

Mesco had no enforceable right for grant of any relief by mere handing over of possession. Mesco was required to do several acts in this case as per the general terms and conditions subject to which the lease was to be granted. Nothing has been performed including payment of instalments etc. and in such a situation no relief is permissible to be given as held by this Court in Raj Kishore (Dead) by L.Rs. v. Prem Singh and Ors. It is apparent that when several acts are to be done in a stated manner and in stipulated time and none of them has been performed, as in instant case, such gross breach became irremediable and no equitable principle could have come to the rescue of Mesco as it has utterly failed to fulfil its obligations.

Submission on behalf of Mesco that IDCO is bound by promissory estoppels is unworthy of acceptance. It is not the case of Mesco that there was any assurance given to it on basis of which it has acted upon. State Government had withdrawn its initial offer of equity participation of Rs. 25 crores well before the order of allotment was issued. It was made clear in the order that the State Government had directed IDCO to allot 2500 acres of land subject to execution of lease deed. In such a situation, there is no room to entertain the plea of promissory estoppel and it is not the case that any of the authorized persons had at any point of time, without execution of lease deed, asked Mesco to do anything. In Mumbai International Airport Private Ltd. v. Golden Chariot Airport and Anr., it was held that even if oral assurance of execution of licence is proved, such assurance cannot bind the statutory body. In facts of the instant case, principle of promissory estoppel is not attracted at all. IDCO is a statutory body and can act only in the mode prescribed and Mesco was informed of the lease deed to be executed in prescribed format. Thus, High Court could not have issued the impugned direction.

In instant case, on basis of MOU or allotment letter, no right has accrued to Mesco, and it having failed to perform its mandatory part, MOU/offer became void and unenforceable. IDCO was fully justified in resuming the land. High Court mis-adventured into holding the action of IDCO of resumption of land to be illegal. There was no equitable or legal consideration in favour of the Respondent and a writ is not issued to perpetuate an illegality. Not only the conduct of Mesco was unfair, third party rights had also intervened. Lawful method had been exercised for resumption of land and cancellation of letter of handing over the possession. Resultantly, impugned order passed by High Court is set aside.

Relevant

Raj Kishore (Dead) by L.Rs. v. Prem Singh and Ors.  MANU/SC/1046/2010
: (2011) 1 SCC 657, Mumbai International Airport Private Ltd. v. Golden Chariot Airport and Anr. MANU/SC/0746/2010
: (2010) 10 SCC 422

Tags : Land Resumption Direction Validity

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High Court of Delhi

Bar Council of Delhi v. Central Information Commission and Anr.

MANU/DE/0361/2017

14.02.2017

Civil

Minutes of full house of Bar Council should not be disclosed and put in public domain

Petitioner impugns orders passed by Central Information Commission directing that, details sought by Respondent no. 2 be put in public domain voluntarily as per Section 4(1)(b) of Right to Information Act, 2005. Further, Commission by order issued a show cause notice to PIO as to why penalty be not imposed for denying the information. By impugned order, another opportunity was granted to Central Public Information Officer (CPIO) to explain as to why penalty should not be imposed upon him for not providing information and not complying with commission’s order of uploading entire information on the website. By impugned order, CIC held that, minutes of full house of Bar Council should be disclosed and put in public domain and also on website of Bar Council.

Under Section 6 of Advocates Act, 1961, a State Bar Council has to perform several functions. Decisions in discharge of various functions are taken in Council meetings. In additional the Bar Council also exercises disciplinary powers conferred on it under Section 36 of Advocates Act. Perusal of Section 6 and also Section 36 shows that in its meetings, apart from general function and information, a State Bar Council would be discussing confidential personal matters of advocates. Personal and confidential issues would come up before the Bar Council for consideration. Putting all minutes in public domain and on website would imply making public confidential personal information and also information received by Bar Council in fiduciary capacity. Minutes would also contain personal information about Advocates who seek financial help on medical ground which would clearly be personal information of the third party. Such information clearly cannot be put in public domain.

Under Section 12, accounts of State Bar Council are to be audited and State Bar Council is obliged to send a copy of accounts along with report of auditor to Bar Council of India and also cause same to be published in Official Gazette. By publication in official gazette, accounts of a State Bar Council, come in public domain. Further, it may be noticed that impugned order does not contain any reasons based on which CIC formed an opinion that, information was required to be put in public domain and on the website. However, if any person is desirous of seeking any particular information, which is not exempted under the Act, he/she is always free to file an application under the Act, seeking disclosure of such information and on receipt of such an application, the Bar Council would have dealt with the same in accordance with the Act. With regard to show cause notices issued, by CIC, to the CPIO, for delay in furnishing information, it is noticed that, CPIO had responded to application filed by Respondent No. 2 within the period of 30 days. Response itself indicates that whatever information was available, was provided. The CPIO in his reply to Central Information Commission has indicated that voluminous records had been sought by Respondent no. 2. Respondent No. 2 had sought minutes of full house meetings for the period 01st April, 2010 till date of the application which was nearly five years.

Apart from contending that, information was exempt, CPIO in his reply to CIC had relied on decision of High Court of Judicature at Bombay in “State Information Commissioner Vs. Tushar Dhananjya Mandlekar, LPA No. 276 of 2012”, whereby High Court has held that where required information is general, vague and voluminous in nature, parties cannot be expected to be provided the required information within 30 days. In present case also Respondent No. 2 had sought general and voluminous information i.e. records of all meetings for a period of 5 years. The stand of Petitioner is that under orders of this court, without prejudice, the entire information has already been provided to Respondent no. 2. Impugned orders are quashed. Further, proceedings initiated by CIC, requiring Petitioner to show cause as to why action be not taken for delay in furnishing information are also quashed.

Relevant

State Information Commissioner Vs. Tushar Dhananjya Mandlekar

Tags : Meetings Information Disclosure

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Central Administrative Tribunal

Ashwani Kumar v. Union of India and Ors.

MANU/CA/0176/2017

13.02.2017

Service

A charge-sheet or show cause notice, issued in course of disciplinary proceedings, cannot ordinarily be quashed by Court

Applicant has assailed memorandum of charges and order whereby Respondents have not considered grant of medical leave from 21st March, 2014 to 10th April, 2014. Applicant who was working as Lower Division Clerk with Respondent department was served with impugned charge sheet under Rule 16 of CCS (CCA) Rules, 1965 for absent from duty. Thereafter, applicant submitted his reply. Now, the applicant has approached this Court by filing present O.A. with a prayer that impugned charge sheet be quashed on the ground of delay in concluding the departmental proceedings. Applicant has also alleged malice against respondent No. 3 on whose instance, he has been served with the present charge sheet.

Ordinarily, a writ application does not lie against a charge sheet or show cause notice for the reason that it does not give rise to any cause of action. It does not amount to an adverse order which affects the right of any party unless the same has been issued by a person having no jurisdiction/competence to do so. A writ lies when some right of a party is infringed. In fact, charge sheet does not infringe the right of a party. It is only when a final order imposing the punishment or otherwise adversely affecting a party is passed; it may have a grievance and cause of action. Thus, a charge-sheet or show cause notice in disciplinary proceedings should not ordinarily be quashed by the Court.

Court/Tribunal should not generally set aside the departmental enquiry, and quash the charges on the ground of delay in initiation of disciplinary proceedings, as such a power is dehors the limitation of judicial review. In the event that the Court/Tribunal exercises such power, it exceeds its power of judicial review at the very threshold. Therefore, a charge-sheet or show cause notice, issued in the course of disciplinary proceedings, cannot ordinarily be quashed by court. The same principle is applicable in relation to there being a delay in conclusion of disciplinary proceedings. The facts and circumstances of the case in question, must be carefully examined, taking into consideration the gravity/magnitude of charges involved therein.

Delay in concluding the departmental proceedings will not always fatal or compel to quash charge sheet. It depends upon the facts and circumstances of each case. Applicant was served with memorandum of charges on 30th May, 2014 to which he also submitted reply in the month of June, 2014. Thereafter, matter was pending for adjudication with Respondents. Though charge sheet pertains to minor charge but Applicant fails to show any prejudice caused to him during pendency of charge sheet, therefore, charge-sheet cannot be quashed. Applicant has already submitted reply to charge sheet, therefore, in interest of justice and to fair play, Respondents are directed to conclude departmental proceedings within a period of three months from the date of receipt of a certified copy of this order.

Relevant

State of Punjab & Ors. Vs. Chaman Lal Goyal MANU/SC/0628/1995
: (1995) 2 SCC 570), State of Andhra Pradesh versus N. Radhakishan MANU/SC/0278/1998
: 1998 (3) SC Page 123), Secretary, Forest Department & Ors. Vs. Abdur Rasul Chowdhury, MANU/SC/0761/2009
: 2009 (7) SCC 305

Tags : Charge Proceedings Delay

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Supreme Court

B.K. Pavitra v. Union of India

MANU/SC/0143/2017

09.02.2017

Service

Mere fact of no proportionate representation in promotional posts for population of SCs and STs is not enough to grant consequential seniority to promotees

Instant appeals involve the question of validity of Karnataka Determination of Seniority of Government Servants Promoted on Basis of Reservation (To the Posts in the Civil Services of the State) Act, 2002. The Act inter alia provides for grant of consequential seniority to the Government servants belonging to Scheduled Castes and the Scheduled Tribes promoted under reservation policy. It also protects consequential seniority already accorded from 27th April, 1978 onwards.

Impugned judgment has been challenged on behalf of Appellants mainly relying upon judgment of this Court in Uttar Pradesh Power Corporation Limited v. Rajesh Kumar. It was submitted that, High Court erroneously held that there was an inbuilt mechanism under Section 3 of impugned Act or that seniority rule maintaining lower cadre seniority in respect of persons promoted on a particular occasion was a safeguard against excessive reservation. Similarly, finding that reservation was only upto a particular level and not beyond or that accelerated promotion upto that level did not affect further promotions was erroneous.

Conferment of enabling power on State under Article 16(4A) of Constitution of India, 1950 did not by itself violate basic feature of equality. If the affirmative action stipulated under Article 16(4A) of Constitution could be balanced with the need for adequate representation for justice to the backwards while upholding equity for forwards and efficiency for the entire system with the further observation that the content of a right is defined by the Courts and even while the amendment as such could be upheld, validity of an individual enactment was required to be gone into. If State wished to exercise its discretion under Article 16(4A) of Constitution, it was to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335 of Constitution. It was made clear that even if State has compelling reasons, State will have to see that its reservation provision does not lead to excessiveness so as to breach ceiling limit of 50% or obliterate creamy layer or extend reservation indefinitely.

Exercise for determining ‘inadequacy of representation’, ‘backwardness’ and ‘overall efficiency’, is a must for exercise of power under Article 16(4A) of Constitution. Mere fact that there is no proportionate representation in promotional posts for population of SCs and STs is not by itself enough to grant consequential seniority to promotees who are otherwise junior and thereby denying seniority to those who are given promotion later on account of reservation policy. It is for the State to place material on record that there was compelling necessity for exercise of such power and decision of the State was based on material including the study that overall efficiency is not compromised. In present case, no such exercise has been undertaken. High Court erroneously observed that it was for petitioners to plead and prove that overall efficiency was adversely affected by giving consequential seniority to junior persons who got promotion on account of reservation. Plea that persons promoted at the same time were allowed to retain their seniority in lower cadre is untenable and ignores the fact that a senior person may be promoted later and not at same time on account of roster point reservation. Depriving him of his seniority affects his further chances of promotion. Further plea that seniority was not a fundamental right is equally without any merit in the present context. In absence of exercise under Article 16(4A), it is the ‘catch up’ rule which is fully applies. It is not necessary to go into the question whether the concerned Corporation had adopted the rule of consequential seniority.

Supreme Court set aside the impugned judgment and declared that provisions of impugned Act to the extent of doing away with ‘catch up’ rule and providing for consequential seniority under Sections 3 and 4 of Act to persons belonging to SCs and STs on promotion against roster points to be ultra vires Articles 14 and 16 of Constitution. Judgment will not affect those who have already retired and will not affect financial benefits already taken. Consequential promotions granted to serving employees, based on consequential seniority benefit, will be treated as ad hoc and liable to be reviewed.

Tags : Seniority Promotion Provisions Validity

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