Judgments
High Court of Delhi
Monu Kapoor Vs. Directorate of Revenue Intelligence
MANU/DE/4257/2019
11.12.2019
Criminal
Accused is not eligible for grant of anticipatory bail, when accused fails to join investigation on false pretexts or sham/farce excuses despite being given opportunities
The Petitioner has filed the present application under Section 438 of the Code of Criminal Procedure, 1973 (CrPC) for the grant of anticipatory bail. In facts of present case, as per the status report, a seizure of gold was effected from a shop and Lease Agreement of the said shop was in the name of Monu Kapoor, the petitioner herein.
The statement of Rahul Kapoor, present in the shop at the time of seizure, was recorded under Section 108 of the Customs Act, 1962, wherein he admitted to the facts that (i) the seized gold was of foreign origin; (ii) the smuggled gold was sold in lieu of cash only; (iii) no bills used to be furnished for the sale of smuggled gold and (iv) the shop was not registered with VAT/GST Department. He further disclosed that his uncle, Vijay Kapoor and his cousin, Monu Kapoor were partners in the said shop along with him and he used to share business details with them.
Learned counsel for the Petitioner submitted that, the Petitioner has been falsely implicated in the present case. Learned counsel further submitted that, the Department's intentions are not bonafide vis-à-vis the Petitioner, whom they intend to harass and humiliate by arresting him at any cost, contrary to settled principles of law.
There is no doubt that, the anticipatory bail may be granted, when there is material on record to show that, prosecution was inherently doubtful or where there is material on record to show that there is a possibility of false implication. However, when the element of criminality is involved; the custodial interrogation is required and/or the other aspects and facts are required to be unfolded in investigation, the applicant is not entitled for anticipatory bail.
It is a well-settled law that, while considering the question of grant of anticipatory bail, the Court prima facie has to look into the nature and gravity of the alleged offence and the role of the accused. The Court is also bound down and must look into, while exercising its power to grant bail, the antecedents of the applicant and also the possibility of the applicant fleeing from justice, apart from his conduct in not joining and/or in not co-operating in the investigation along with other factors and parameters in view of the facts of each and every case.
A person who wants that the process of law should be followed, he should also follow and submit to the process of law. The facts of the case demonstrate that the petitioner, despite having been served with various show cause notices, has preferred not to join the investigation. The questions which arise for consideration, in these circumstances, are (i) if the accused has joined the investigation and he is not fully cooperating with the investigating agency and/or (ii) a person does not join the investigation on false pretexts or sham/farce excuses, then what should be done. Where the accused has failed to join the investigation on false pretexts or sham/farce excuses despite being given opportunities and/or is not fully cooperating with the investigating agency, the anticipatory bail application of accused should be rejected.
Hence, in view of the nature and gravity of the accusations, the stage of the investigation, the alleged role of the accused and the enormity of financial transactions to be investigated, severity of crime and resultant loss to the public as well as nation; non co-operation of the accused in the investigation and requirement of his custodial interrogation, present Court does not find any merit in the anticipatory bail application of the Petitioner. The anticipatory bail application is, accordingly, dismissed.
Tags : Anticipatory bail Grant Gravity Accusations
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Supreme Court
Rajendra Diwan Vs. Pradeep Kumar Ranibala and Ors.
MANU/SC/1716/2019
10.12.2019
Tenancy
State legislature cannot enact law providing direct appeal to Apex Court
Present appeal, purportedly under Section 13(2) of the Chhattisgarh Rent Control Act, 2011, is against an order of the Rent Control Tribunal, confirming an order passed by the Rent Control Authority, whereby an application filed by the Respondent-landlord for eviction of the Appellant tenant under Section 12 of the Rent Control Act has been allowed.
The question which requires to be determined by this Bench is, whether Section 13(2) of the Rent Control Act is ultra vires the Constitution of India, by reason of lack of legislative competence of the Chhattisgarh State legislature to enact the provision.
The Supreme Court has been established under Article 124 of the Constitution of India, 1950 and derives its jurisdiction and powers from Articles 131 to 145 thereof. There is no provision in the Constitution which provides for direct appeal to the Supreme Court, from an order of a Tribunal constituted under any law enacted by a State Legislature.
On a conjoint reading of Article 323B and Articles 245 and 246 of the Constitution of India with Entry 18 of the State List in the Seventh Schedule, there can be no doubt that, the State Legislature was competent to enact law to provide for adjudication and trial of all disputes, complaints and offences relating to tenancy and rent, by a Tribunal. The Chhattisgarh State Legislature was thus competent to enact the Rent Control Act, to the extent that it provides for the adjudication of original disputes relating to tenancy and rent by the Rent Controller, and creates a Tribunal to decide appeals from orders of the Rent Controller, but subject to the exception.
Section 13(2) of the Rent Control Act, providing for direct appeal to the Supreme Court from orders passed by the Rent Control Tribunal, is not ancillary or incidental to the power of the Chhattisgarh State Legislature to enact a Rent Control Act, which provides for appellate adjudication of appeals relating to tenancy and rent by a Tribunal. In enacting Section 13(2) of the Rent Control Act, the Chhattisgarh State Legislature has overtly transgressed the limits of its legislative power, as reiterated and discussed hereinafter.
Both the Union legislature and the State Legislature derive their power to legislate from Article 245 of the Constitution of India. It is axiomatic that the legislature of a State may only make laws for the whole or any part of the State, while Parliament may make laws for the whole or any part of the territory of India. There is no provision in the Constitution which saves State laws with extra-territorial operation, similar to Article 245(2) which expressly saves Union laws with extra-territorial operation, enacted by Parliament. The Chhattisgarh State Legislature, thus, patently lacks competence to enact any law which affects the jurisdiction of the Supreme Court, outside the State of Chhattisgarh.
Entry 18 of the State List, which only enables the State Legislature to legislate with regard to land, land tenures, landlord tenant relationship, collection of rents etc. does not enable the State Legislature to enact law conferring appellate jurisdiction to the Supreme Court in respect of orders passed by an Appellate Rent Control Tribunal, constituted under a state law.
In view of Entry 77 of the Union List, only Parliament has the legislative competence to legislate with respect to the constitution, organization, jurisdiction or powers of the Supreme Court. Entry 64 of the State List and Entry 46 of the Concurrent List enable the State Legislature to enact law with respect to the jurisdiction and powers of Courts except the Supreme Court. In other words, the said Entries expressly debar the State Legislature from legislating with respect to the jurisdiction of the Supreme Court.
Under Article 136 of the Constitution, the Supreme Court does not act as a regular court of appeal. The power of the Supreme Court under Article 136 of the Constitution is not to be confused with the appellate power ordinarily exercised by appellate courts and Tribunals under specific statutes. Article 136 does not confer a right of appeal on any party, but confers a discretionary power on the Supreme Court to interfere in appropriate cases. This power can be exercised in spite of other provisions for appeal contained in the Constitution, or any other law, as held in N. Natarajan v. B.K. Subba Rao.
Under Article 136 of the Constitution of India, the Supreme Court entertains appeals by special leave, where substantial questions of law or questions of public importance are involved. Where there is any uncertainty in the law, the Supreme Court, in its discretion, settles the law. The Supreme Court does not ordinarily interfere with concurrent findings of fact Under Article 136. If the concurrent findings are based on accepted oral or documentary evidence, there is no interference Under Article 136 of the Constitution.
Presidential assent makes no difference in case of legislative incompetence. Presidential assent cannot and does not validate an enactment in excess of the legislative powers of the State Legislature, nor validate a statutory provision, which would render express provisions of the Constitution otiose. Presidential assent cures repugnancy with an earlier Central Statute, provided the State Legislature is otherwise competent to enact the Statute. The State Legislature lacked legislative competence to enact Section 13(2) of the Rent Control Act. Present Court, therefore, declare Section 13(2) of the Rent Control Act ultra vires the Constitution of India, null and void and of no effect.
Relevant
N. Natarajan v. B.K. Subba Rao, MANU/SC/1083/2002
Tags : Legislative competence Provision Enactment
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Supreme Court
Ram Murti Yadav Vs. State of Uttar Pradesh and Ors.
MANU/SC/1710/2019
10.12.2019
Service
Strict standard needs to be applied for judging conduct of judicial officer
The Appellant, a judicial officer of the rank of Additional District and Sessions Judge, assails his order of compulsory retirement at 56 years of age under Rule 56 (C) of the U.P. Fundamental Rules.
The Appellant while posted as a Chief Judicial Magistrate granted acquittal to the Accused in Criminal Case of 2005. A complaint was lodged against the Appellant with regard to the acquittal. After calling for comments from the Appellant, and perusing the judgment and the order of reversal in appeal, the Administrative Judge recommended an enquiry. A vigilance enquiry, was held. The enquiry report dated 10.05.2012 was adverse to the Appellant. The Appellant was informed that on basis of the enquiry, a censure entry had been recorded in his character roll. The order of punishment was accepted by the Appellant without any challenge.
A committee of three Hon'ble Judges constituted for screening of judicial officers for compulsorily retirement under the Rules recommended the compulsory retirement of the Appellant which was endorsed by the Full Court leading to the impugned order of compulsory retirement.
An error of judgment in deciding a criminal case, while discharging judicial functions, cannot ipso facto lead to an inference of dishonesty. There was in fact no material to infer dishonesty or lack of integrity on part of the Appellant in granting acquittal in the criminal case. Merely because a different view was possible does not justify the extreme step of compulsory retirement. The order of compulsory retirement being stigmatic in nature, the failure to hold departmental enquiry vitiates the same.
The complaint against the Appellant with regard to the acquittal granted by him was first considered by the Administrative Judge, who was satisfied that it is a matter for further enquiry. The comments of the Appellant were called for. A vigilance enquiry was recommended by the Administrative Judge, who obviously was not satisfied with the explanation furnished. The officer holding the vigilance enquiry was also a judicial officer who opined that the act of acquittal by the Appellant was not above board. The comments of the Appellant were again called for. The Screening Committee consisting of three Hon'ble Judges, on an overall assessment of the Appellant's service record, recommended his compulsory retirement. The Full Court scrutinised the service records of the Appellant again while considering the recommendation of the Screening Committee and arrived at the conclusion that it was in public interest to compulsory retire the Appellant. It is undisputed that, the punishment of censure meted out to the Appellant was never assailed by him.
A person seeking justice, has the first exposure to the justice delivery system at the level of subordinate judiciary, and thus a sense of injustice can have serious repercussions not only on that individual but can have its fall out in the society as well. The standard or yardstick for judging the conduct of the judicial officer therefore has necessarily to be strict.
It is not every inadvertent flaw or error that will make a judicial officer culpable. The State Judicial Academies undoubtedly has a stellar role to perform in this regard. A bona fide error may need correction and counselling. But a conduct which creates a perception beyond the ordinary cannot be countenanced. For a trained legal mind, a judicial order speaks for itself. In conclusion, the order of compulsory retirement of the Appellant calls for no interference. The appeal is dismissed.
Relevant
Registrar General, Patna High Court v. Pandey Gajendra Prasad and Ors., MANU/SC/0444/2012
Tags : Compulsory retirement Legality
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Supreme Court
Union of India (UOI) and Ors. Vs. Kartar Singh and Ors.
MANU/SC/1699/2019
09.12.2019
Service
Judgment of acquittal may be reversed or otherwise disturbed only for very substantial and compelling reasons
In facts of present case, Dafadar Kartar Singh, the Respondent was tried by the Summary Court Martial for a civil offence of house breaking by night. He was found guilty of the charge and was sentenced to rigorous imprisonment for seven months apart from dismissal from service and reduction in the ranks. The conviction was set aside by the Armed Forces Tribunal. The Tribunal directed that the Respondent shall be deemed to be in service w.e.f. 10.11.1999 till the date of his superannuation in the rank of Dafadar. He was also held to be entitled to all allowances for the said period and pensionary benefits. Present Appeals are directed against the said judgment of the Tribunal.
The judgments of acquittal may be reversed or otherwise disturbed only for very substantial and compelling reasons. Very substantial and compelling reasons exist, when the trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc. The judgment of the Tribunal cannot be sustained in view of the material evidence on record not being considered at all except for highlighting the contradiction in the evidence of Smt. Sudesh. The Tribunal miserably failed to consider the other oral testimonies, especially of Master Bittoo who was in the quarters at the time of intrusion, Lance Naik, A. Hussain-Court witness No. 1 who reached the place of the incident. All these persons spoke about the incident and there is no contradiction in their versions.
The other material on record has also been ignored by the Tribunal is the photograph of the bruises on both the arms of Respondent and the opinion of the doctor which was placed on record which lend support to the prosecution version. There is sufficient evidence on record to show that, house breaking had in fact taken place. In addition, material on record clearly points to the guilt of the Respondent. After examining the evidence available on record carefully, present Court is convinced that the judgment of the Summary Court Martial ought not to have been interfered with by the Tribunal.
In view of the aforementioned, the judgment of the Tribunal is set aside and the order passed in Summary Court Martial is restored. The sentence of imprisonment is however modified to the period already undergone. The other penalties of dismissal from service and reduction to ranks are restored. Accordingly, the Appeals are allowed.
Tags : Allowances Direction Legality
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High Court of Kerala
Vijuna V.K. Vs. Mithun K. and Ors.
MANU/KE/5285/2019
09.12.2019
Criminal
Cheque drawn and issued by a person to the complainant, in discharge of debt owed by another person to complainant, comes within purview of Section 138 of NI Act
In facts of present case, the trial court found the Petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and convicted her thereunder and sentenced her to undergo simple imprisonment for a period of three months and also directed her to pay an amount of Rs. 3,50,000 as compensation to the complainant and in default of payment of compensation, to undergo simple imprisonment for a period of three months.
The appellate court confirmed the conviction of the Petitioner under Section 138 of the Act but modified the sentence of imprisonment to imprisonment till the rising of the court and imposed a fine of Rs. 3,50,000 on the Petitioner and in default of payment of fine, to undergo simple imprisonment for a period of three months. The Petitioner challenges the concurrent verdicts of guilty and conviction passed against her by the Courts below and the sentence imposed on her by the appellate Court.
The signature in the cheque is admitted by the accused. There is the evidence of PW 1 and PW 2 regarding the execution of the cheque by the accused and delivery of it by her to the complainant. In the absence of any reliable evidence adduced by the accused to prove that her signed blank cheque had been given to the father of the complainant as security for the amount borrowed by her husband, the evidence of PW 1 and PW 2 can be accepted as reliable and trustworthy. The trial court as well as the appellate Court has analysed the evidence in the case in the correct perspective and reached the correct conclusion.
It is true that, the accused had issued the cheque to the complainant not in discharge of any amount due from her to the complainant. What is proved is that, she had drawn and delivered the cheque to the complainant in discharge of the liability of her husband to the complainant. The fact, that the accused had drawn and delivered the cheque to the complainant in discharge of the amount due from her husband to the complainant and not in discharge of any amount due from herself, does not mean that the offence under Section 138 of the Act is not attracted. Cheque drawn and issued by a person to the complainant, in discharge of the debt owed by another person to the complainant, comes within the purview of Section 138 of the Act.
Section 27 of the General Clauses Act, 1897 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. When the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of Clause (b) of the proviso to Section 138 of the Act stands complied with. Where the payee dispatches the notice by registered post with correct address of the drawer of the cheque, the principle incorporated in Section 27 of the General Clauses Act would be attracted.
There is no reason to interfere with the findings entered by the Courts below with regard to execution of the cheque by the accused and delivery of it by her to the complainant in discharge of the amount due from her husband to the complainant. The conviction of the Petitioner for the offence under Section 138 of the Act is only to be confirmed.
The appellate Court has shown maximum leniency in the matter of sentence and reduced the substantive sentence of imprisonment awarded by the trial court to imprisonment till the rising of the court. There is no sufficient ground to interfere with the sentence imposed on the petitioner/accused by the appellate Court. The revision petition is dismissed.
Tags : Conviction Sentence Legality
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High Court of Calcutta
Arabinda Tewari Vs. Union of India and Ors.
MANU/WB/2864/2019
06.12.2019
Service
When employee was found guilty of corruption by criminal court, then, unless said conviction was set aside, action of employer in dismissing employee from service cannot be faulted
The Petitioner was serving in the Bharat Coking Coal Limited. A show cause notice was issued to him on 24th June, 2017 on the allegation that, while he was working as Chief Manager (Mining)/Project Officer, he was caught red handed by CBI while demanding and accepting illegal gratification. A case was registered against him by the CBI. The Petitioner was convicted in the said case.
In view of the conviction, the Petitioner was found guilty of committing serious misconduct under Clauses 5.2 and 5.17 of the Conduct, Discipline and Appeal Rules, 1978 (as amended) of the Coal India Limited and was liable to be proceeded against under clause 34.1(i) of the said Rules. The Petitioner was directed to show cause as to why appropriate penalty including dismissal from service should not be imposed upon him under Rule 27 of the said Rules.
The explanation submitted by the Petitioner was not found satisfactory. By an order, the Chairman-cum-Managing Director, Coal India Limited being the disciplinary authority imposed the order of penalty of dismissal from service with immediate effect. Being aggrieved by the order passed by the disciplinary authority, the Petitioner preferred an appeal before the appellate authority. By an order, the appellate authority upheld the order of penalty and dismissed the appeal preferred by the Petitioner.
The Petitioner submits that, it was incumbent upon the employer to initiate a regular disciplinary proceeding prior to passing the impugned order of penalty. Dismissing the Petitioner from service without affording him an opportunity of hearing is contrary to the principle of natural justice.
It is settled law that, an order of suspension of sentence does not mean that the validity of the order has been wiped out. It does not mean that the same has lost its existence. It neither means that the parties will be relegated to their earlier position prior to passing of the order of suspension of sentence. It simply means that the same has been kept under suspension temporarily.
The Supreme Court in Deputy Director of Collegiate Education (Administration), Madras vs. S. Nagoor Meera categorically held that, if the accused government servant is acquitted on appeal or other proceeding the order passed against him can always be reviewed and if the government servant is reinstated he will be entitled to all the benefits to which he would have been entitled to had he continued in service. Continuing a person who has been convicted of a serious offence by a criminal court is not advisable.
The Court succinctly laid down that, when the employee was found guilty of corruption by a criminal court, then, until and unless the said conviction was set aside by the appellate or other higher court, it may not be advisable to retain such person in service. In the instant case, the Petitioner was convicted by the criminal court on charges of corruption. Until and unless said conviction is quashed or set aside by a higher forum, the action of the Respondents in dismissing him from service cannot be faulted.
It is trite law that, the quantum of punishment to be imposed upon an employee is the sole discretion of the employer. The employer has exercised discretion and imposed the punishment of dismissal from service. There does not appear to be any infraction in the Rules relating to disciplinary proceedings and accordingly, the Court does not find any reason to interfere in the instant case. In the event the order of conviction is set aside by the higher forum, it will be open for the Petitioner to seek review of the order of punishment imposed upon him.
Relevant
Deputy Director of Collegiate Education (Administration), Madras vs. S. Nagoor Meera MANU/SC/0256/1995
Tags : Illegal Gratification Dismissal Legality
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