Supreme Court

Ebha Arjun Jadeja and Ors. Vs. The State of Gujarat

MANU/SC/1408/2019

16.10.2019

Criminal

FIR cannot be registered without sanction of Competent Authority in TADA Offences

Present appeal by the Accused is directed against the order passed by the Designated TADA Court whereby the application filed by the Accused that, they should be discharged due to non-compliance of Section 20-A(1) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (“TADA Act") was dismissed. Appellant No. 1/accused No. 1 was wanted in Crime registered against him under Section 25(1B)(a) and 27 of the Arms Act, 1959 and under Section 3 and 5 of TADA Act etc.

The law is therefore, clear that if Section 20-A(1) of TADA Act is not complied with, then it vitiates the entire proceedings. The Legislature while introducing Section 20-A(1) in TADA Act was also aware of the provisions of Section 154 of Code of Criminal Procedure, 1973 (CrPC). The clear-cut intention was that, no information of commission of an offence under TADA Act would be recorded by the police under Section 154 of CrPC without sanction of the competent authority. The reason why Section 20-A(1) was introduced into TADA Act in the year 1993 by amendment was that because the provisions of TADA Act were very stringent, the Legislature felt that a senior official should look into the matter to ensure that an offence under TADA is made out and then grant sanction.

The bar under Section 20-A(1) of TADA Act applies to information recorded under Section 154 of CrPC. This bar will not apply to a rukka or a communication sent by the police official to the District Superintendent of Police seeking his sanction. Otherwise, there could be no communication seeking sanction, which could not have been the purpose of TADA Act.

At the same time, where the information basically discloses an offence under TADA Act and the other offence is more in the nature of an ancillary offence then, the information cannot be recorded without complying with the provisions of Section 20-A(1) of TADA Act.

In the case in hand, the only information recorded which constitutes an offence is the recovery of the arms. The police officials must have known that, the area is a notified area under TADA Act and, therefore, carrying such arms in a notified area is itself an offence under TADA Act. It is true that this may be an offence under the Arms Act also but the basic material for constituting an offence both under the Arms Act and TADA Act is identical i.e. recovery of prohibited arms in a notified area under TADA Act. There are no other offences of rape, murder etc. in this case. Therefore, as far as the present case is concerned, non-compliance of Section 20-A(1) of TADA Act is fatal and the Appellants are to be discharged in so far as the offence under TADA Act is concerned. They can be proceeded against under the provisions of the Arms Act. The order of the Designated TADA Court is set aside. Appeal allowed.

Tags : TADA offence Sanction Requirement

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Supreme Court

H.S. Yadav Vs. Shakuntala Devi Parakh

MANU/SC/1403/2019

15.10.2019

Tenancy

Tribunal’s order cannot be directly challenged in the Supreme Court

In facts of present matter, the State of Chhattisgarh enacted the Chhattisgarh Rent Control Act, 2011. Under this Act, in the hierarchy of adjudicating authorities, there is a Rent Controller and above that, a Rent Control Tribunal. In terms of Section 7 of the Act, the State can appoint one or more officers not below the rank of Deputy Collector, as Rent Controller with territorial jurisdiction to be specified by the Collector. The Rent Control Tribunal is constituted under Section 6 of the Act. This Tribunal has appellate and supervisory jurisdiction.

A bare perusal of Section 13 of the Act shows that, from any order of the Rent Controller an appeal lies to the Rent Control Tribunal and in terms of Section 13(2) of the Act, an appeal lies as a matter of right to the Supreme Court. It is not disputed that, the State has the power to constitute the Tribunal. The only issue is whether in terms of Section 13(2) of the Act, the State Legislature could provide an appeal as a matter of right from the order of the Tribunal to the Supreme Court.

Article 246 of the Constitution of India, 1950 specifically provides that, Parliament has exclusive powers to make laws in respect of matters enumerated in List I (Union List) of the Seventh Schedule. Likewise, the State has exclusive powers to make laws in respect of matters falling in List II (State List) of the Seventh Schedule. As far as the Concurrent List, i.e. List III is concerned, both the Union and the State have the power to enact laws but if the field is occupied by any law enacted by Parliament then, the State cannot legislate on the same issue.

Section 13(2) of the Act, in so far as it provides an appeal directly to the Supreme Court, is totally illegal, ultra vires the Constitution and beyond the scope of the powers of the State Legislature. Section 13(2) of the Act is accordingly struck down. In L. Chandrakumar v. Union of India, this Court clearly held that, tribunals constituted under Articles 323A and 323B of the Constitution are subject to the writ jurisdiction of the High Courts. In view of the law laid down in L. Chandrakumar's case, the High Court can exercise its supervisory jurisdiction under Article 227 of the Constitution against the orders of the Rent Control Tribunal.

An appeal under Section 13(2) of the Act directly to the Supreme Court is not maintainable. However, it is open to the Appellant to approach the High Court for redressal of his grievance under Article 227 of the Constitution. Appeal dismissed.

Tags : Direct appeal Supreme Court Maintainability

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High Court of Delhi

Manoj Kumar Pruthi Vs. Magma Housing Finance

MANU/DE/3317/2019

11.10.2019

Banking

Application for waiver of pre-deposit is to be entertained as Petitioners were neither borrowers nor mortgagers or guarantors in respect of loan facility availed by principal borrower

The present petition is directed against an order passed by the Debt Recovery Appellate Tribunal ('DRAT'), rejecting the Petitioner's application seeking waiver of the pre-deposit in terms of Section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (SARFAESI Act).

Present Court in Manju Devi and Ors. v. M/s. R.B.L. Bank Ltd. and Ors. noted that the second proviso to Section 18 (1) of the SARFAESI Act, obligates the borrower to deposit with the DRAT 50% of the amount of debt due from him for the appeal, which may be filed either by the borrower or other party, to be entertained. The Court noted that, if the said proviso had to be read literally to mean that such appeal would not be entertained, if neither the borrower nor the third person made the deposit then "appeals by third persons would in effect and substance, be rendered nugatory for a third person, who would never be able to get his appeal entertained." On the facts of that case, which are similar to the facts in the present case, the Petitioners therein were neither the borrowers nor the mortgagers or guarantors in respect of the loan facility availed by the principal borrower. In those circumstances in Manju Devi, present Court set aside the order of the DRAT requiring the petitioners therein to pay 50% of the amount due from the principal borrower as a condition for entertaining the appeal.

In view of the legal position explained in Manju Devi, present Court holds that the DRAT was in error in the present case in declining to entertain the prayer of the Petitioner for waiver of pre-deposit. It is the Petitioner's case that, he is neither the principal borrower nor mortgager of the property in question.

In order to avoid further delay in the matter, present Court is of the view that the delay in the Petitioner filing the affidavit of the evidence and rejoinder before the DRT ought to be condoned. Accordingly, the impugned order passed by the DRT-I dismissing the Petitioner's application for condonation of delay is set aside. The DRT-I is directed to take on record the affidavit of evidence and rejoinder filed by the Petitioner. The petition is disposed off.

Relevant

Manju Devi and Ors. vs. R.B.L. Bank Ltd. and Ors. MANU/DE/0282/2017

Tags : Pre-deposit Direction Legality

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High Court of Kerala

R. Jaikrishnan Vs. Praveen Kumar G.

MANU/KE/4123/2019

11.10.2019

Contempt of Court

In order to initiate contempt proceedings, it has to be established that disobedience of order was 'wilful'

Present is a case in which contempt of court proceedings are sought to be initiated against the Respondent, who is a Judicial Officer, on the ground that he has wilfully disobeyed the order passed by this Court to dispose of a case within a specified time. The Petitioner is the accused in the case pending on the file of the Court of the Judicial First Class Magistrate. The allegation against him is that, he has committed the offences punishable under Sections 468, 471, 409 and 420 of Indian Penal Code, 1860 (IPC).

Section 2(b) of the Contempt of Courts Act, 1971 defines 'civil contempt'. As per Section 2(b) of Act, civil contempt means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of undertaking given to a court. It signifies a deliberate action done with evil intent or with a bad motive or purpose

In order to initiate contempt proceedings, prima facie, it has to be established that disobedience of the order was 'wilful'. The word 'wilful' introduces a mental element and hence, requires looking into the mind of person/contemnor by gauging his actions, which is an indication of one's state of mind. 'Wilful' means knowingly intentional, conscious, calculated and deliberate with full knowledge of consequences flowing therefrom. It excludes casual, accidental, bonafide or unintentional acts or genuine inability. Wilful acts do not encompass involuntary or negligent actions. The act has to be done with a bad purpose or without justifiable excuse or stubbornly, obstinately or perversely. Wilful act is to be distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently.

In the instant case, the report made by the Respondent reveals that, further investigation was being conducted by the police in the case which was ordered to be disposed of by present Court. This fact is not disputed by the learned counsel for the Petitioner. In order to constitute contempt, the order of the Court must be of such a nature which is capable of execution by the person charged in normal circumstances. It should not require any extra ordinary effort nor should be dependent, either wholly or in part, upon any act or omission of a third party for its compliance.

The learned Magistrate could have disposed of the case only after the police filed report regarding the further investigation conducted by them. It means that, there was no wilful disobedience on the part of the learned Magistrate to the order passed by this Court. There is no prima facie case established by the Petitioner for initiating proceedings against the Respondent under the Act. The petition is liable to be dismissed.

In present matter, two Circulars issued by this Court are relevant. As per Circular No. 4/1986 dated 31st January, 1986, present Court had directed that when time bound disposal is ordered by a superior court, it shall be the duty of the Judicial Officer/Chief Ministerial Officer/Members of staff in-charge of Bench and Records to make necessary endorsements in the papers and take steps for compliance with the direction of the High Court. Again, as per Circular No. 3/2000 dated 18th October, 2000, this Court had directed that all the courts below shall maintain a register in the prescribed form and shall make necessary entries in such register regarding the directions issued from the superior courts with regard to disposal of cases within a specific period.

Strict and scrupulous compliance with the directions contained in two Circulars issued by this Court would enable the presiding officers of the lower courts to avoid any omission to make prompt request for extension of time for disposal of time bound cases. Consequently, the petition is dismissed.

Tags : Contempt Proceedings Initiation

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High Court of Kerala

Play Games 24X7 Private Limited and Ors. Vs. Ramachandran K. and Ors.

MANU/KE/4158/2019

11.10.2019

Commercial

Playing rummy for stakes amounts to gambling and comes under the purview of Gaming Act

Present review petitions are filed by third parties seeking review of judgment by which this Court held that "playing rummy for stakes" within the club premises is an offence under the Kerala Gaming Act, 1960 and it shall be open for the police to take appropriate action after complying with Section 5 of the Act. While delivering the aforesaid judgment, it has also been observed that though under Section 14A of the Act, the Government can exempt by way of notification in the Gazette any game from the provisions of the Act subject to such restrictions and conditions as may be specified in the notification, no such notification has been issued by the Government exempting the playing of rummy for stakes from its purview.

In fact in State of A.P. v. K. Satyanarayana, the Apex Court held that it cannot be said that rummy is a game of chance and there is no skill involved in it. However, it was observed that if there is evidence of gambling in some other way or that the owners of the house is making a profit or gain from the game of rummy or any other game played for stakes, the offence may be brought home. A perusal of the impugned judgment would indicate that, present Court was not concerned with the manner in which online rummy for stakes was being played. If rummy is played with stakes, as decided in K. Satyanarayana or as provided under the notification, there is side betting, it amounts to gambling and the Gaming Act clearly applies.

There is no dispute about the fact that, in view of the notification, playing rummy is excluded from the provisions of the Act and in the impugned judgment the Division Bench has also held that the element of skill is predominant than the element of chance. But the question is whether if rummy is played for stakes, will it amount to violation of the provisions of the Gaming Act or not. This aspect of the matter has to be decided on a case to case basis. What is the manner in which the games are conducted and how it is being conducted through online methods and what are the stakes involved in the matter are all issues which may arise for consideration. If it is just playing rummy without any side betting, the notification protects the parties involved in it. But, in a case where rummy is played for stakes, the issue might be different which has to be dealt with on a case to case basis. Review petitions are dismissed.

Relevant

State of Andhra Pradesh vs. K. Satyanarayana and Ors. MANU/SC/0081/1967

Tags : Rummy Stakes Offence

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High Court of Bombay

Parasmal Daulatram Jain Vs. Rameshwar Rathanlal Karwa

MANU/MH/2781/2019

10.10.2019

Civil

Existence of a sufficient cause for permitting Defendant to file written statement is imperative for granting extension of time

Present petition under Article 227 of Constitution of India, 1950 takes exception to an order passed by the learned Judge, whereby the learned Judge allowed the Notice of Motion and permitted the Defendant-Respondent to file written statement dated 24th March, 2015, by condoning the delay of 9 years and 79 days, subject to payment of costs of Rs. 15,000 by the defendant to the plaintiff-petitioner.

The learned Counsel for the Petitioner submitted that, the learned Judge committed a grave error in allowing the Notice of Motion, when by order dated 12th November, 2016, the Court had already recorded that, the written statement sought to be tendered by the Defendant could not be taken on record as it was not accompanied by an application seeking extension of time.

In facts of the case, it is imperative to note that even if the period prior to the restoration of the suit, by order dated 4th February, 2011, is eschewed from consideration, there is a delay of more than 5 years in filing the written statement. In fact, the learned Judge was of the clear view that, the Defendant was duty bound to explain the said delay of about 5 years satisfactorily. The learned Judge went on to record a further finding that, the claim of the Defendant that he could not file the written statement as he himself and his family members were unwell and he was required to attend to them did not constitute an exceptional circumstance and, thus, merit acceptance. The learned Judge declined to condone the delay.

The question which comes to the fore is, whether the learned Judge was justified in permitting the defendant to file the written statement, once a finding was recorded that the reason ascribed by the defendant was not satisfactory. The sole reason assigned by the learned Judge was that, in order to avoid multiplicity of proceedings and provide an opportunity to defendant to contest the claim on merits, it was necessary to grant permission to the Defendant to file the written statement.

The existence of a sufficient cause and a satisfactory reason for permitting the Defendant to file the written statement are imperative for exercise of discretion to grant extension of time. From this standpoint, the existence of a satisfactory justification for granting extension of time to file written statement assumes the character of a foundational fact for exercise of the judicious discretion by the Court. It may not be in consonance with the spirit and object of the provisions of Order VIII Rule 1 of Code of Civil Procedure, 1908 to permit the filing of the written statement on the general premise of determination of the lis on merits.

The learned Judge fell in error in permitting the Defendant to file the written statement despite recording a positive finding that, the Defendant had not satisfactorily accounted for the delay of more than five years in filing the written statement. Petition allowed.

Tags : Written statement Filing of Delay

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