Case BriefsHigh Courts

Patna High Court: Birendra Kumar, J. allowed the application to quash the proceedings against the petitioner as it was an abuse of the process of the Court since no material evidence was found against him.

The petitioner was put to trial, for an offence under Section 7 of the Essential Commodities Act, 1955 when an FIR was registered when a  tractor carrying fertilizer was seized.  The tractor was carrying 30 bags of Urea and 6 bags of DAP fertilizer. The driver of the tractor disclosed that for the last two years, they were purchasing fertilizer from the PDS shop of the petitioner.

The counsel for the petitioner, Vikash Sharma submitted that, no other form of evidence was produced to substantiate the involvement of the petitioner in the alleged occurrence. He further contended that neither the premise of the petitioner was searched nor stock register was checked in order to ascertain any lapses in the records and the actuals.

The Court held that the confession of a co-accused while in police custody could not be proven under Sections 25 and 26 of the Evidence Act, 1872. Hence, it could not be treated as evidence at any stage of the proceedings and such criminal prosecution would be an abuse of the process of the court.

In view of the above noted facts, the instant petition was allowed and the impugned order and subsequent proceedings against the petitioner stood quashed.[Jai Prakash Yadav v. State of Bihar, 2019 SCC OnLine Pat 1188, decided on 19-07-2019]

Case BriefsHigh Courts

Allahabad High Court: Surya Prakash Kesarwani, J. dismissed the present “PIL” while imposing an exemplary cost on the petitioner for abusing the process of the court.

The petitioner filed this PIL for removal of encroachment and illegal possession of respondents from particular plots in the District Ballia which according to him were recorded in the revenue records as ‘khel ka maidan’, ‘khalihan’ and ‘khad ka gaddha’ respectively.

By the order of the Sub-Divisional Magistrate, some plots were recorded as banjar and some as ‘khalihan’, ‘khad ka gaddha’ and ‘khel ka maidan’ after they were exchanged. These newly recorded banjar lands were allotted for residential purposes to nineteen persons. After allotment of land for residential purposes, the respondents constructed their houses (huts and tin shed) and they still reside. These people have no other place of shelter except these houses.

Counsel for the petitioner, Jitendra Shanker Pandey submitted that no bhoomidhari rights shall be created on the land allotted and it is also set apart for public purposes. The aforesaid land falls under Section 132 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950.

The Standing Counsel stated that present PIL is not only wholly devoid of substance but it is also abuse of process of Court. The petitioner has completely failed to disclose his credential to invoke the PIL.

The Court after considering the submissions of both the parties framed some questions for determination:-

  1. Whether removal of shelter of respondents would amount to infringement of their fundamental rights guaranteed under Article 19(1)(e) read with Article 21 of the Constitution of India?
  2. Whether as a consequence of cancellation of lease should the State-respondents provide alternate accommodation/shelter?
  3. Whether any relief is granted in the present PIL?

The Court observed that the landless agricultural labourers were residing before 1994. Therefore, the disputed lands which were part of some public utility land were exchanged by order of the Sub-Divisional Officer which was passed after due inquiry and spot inspection by the revenue authorities. The lease was also granted by a competent authority.

For the purpose of strengthening the arguments, some cases were relied upon – U.P. Avas Evam Vikas Parishad v. Friends Cooperative Housing Society Ltd., 1995 Supp (3) SCC 456, para 8; State of Karnataka v. Narasimhamurthy, (1995) 5 SCC 524, Chameli Singh v. State of U.P., (1996) 2 SCC 549, and Ahmedabad Municipal Corpn. v. Nawab Khan Gulab Khan, (1997) 11 SCC 121. In all these cases, the Supreme Court held that right to shelter is a fundamental right, guaranteed under Articles 19 and 21 of the Constitution of India.

After observing the facts and circumstances of the case and the submissions of the parties, the Court held that – “Shelter for a human being, is not mere protection of his life and limb. It is home where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to shelter includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities. Right to life guaranteed in any civilized society implies the right to food, water, decent environment, education, medical care and shelter. Right to shelter is a fundamental right guaranteed under Article 19(1)(e) read with Article 21 of the Constitution of India”.

The court observed that the weaker section of the society like the poor and landless agricultural labourers have the right to basic human and constitutional rights to residence. Thus, it becomes the duty of the State to fulfill those. But gives no person the right to encroach and erect structures or otherwise on footpaths, pavement or public space or at any place reserved or earmarked for a public utility.

The Court after contemplating on the point that the petitioner had not shown his credential and is clearly visible that is his interest and his son’s alone in the filing of this petition. This indicates abuse of process of Court by the petitioner in filing the present PIL and suppression of material facts. Therefore, the exemplary cost is necessary to be imposed upon the petitioner as the view taken in the case of Punjab State Power Corpn. Ltd. v. Atma Singh Grewal, (2014) 13 SCC 666 and Dnyandeo Sabaji Naik v. Pradnya Prakash Khadekar, (2017) 5 SCC 496.

As the questions for determination were interlinked, the conclusion which comes out is that Right to Shelter is a fundamental right and the relief sought by the petitioner in this PIL is an attempt to infringe fundamental rights of the respondents. If the State authorities find it indispensable to remove the respondents they shall provide suitable accommodation to them.[Rajesh Yadav v. State of UP, 2019 SCC OnLine All 2555, decided on 01-07-2019]

Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K. Agrawal, J. held that the continuation of criminal proceedings for the offence of defamation against an advocate who acted professionally as per the instructions of his client was nothing but abuse of process of Court.

The petitioner was an Advocate having standing of more than 45 years at the Bar in District Court, Jagdalpur (Bastar). He drafted a plaint on behalf of one Madhuri Pandey, daughter of late Ghanshyam Pandey, for declaration of title, confirmation of possession and permanent injunction against one Pratibha Pandey (hereinafter, the complainant). In the plaint, she was referred to as “concubine” of Ghanshyam Pandey. She filed a complaint against the petitioner and other alleging that she was the widow of Ghanshyam Pandey and not her concubine. She prayed for appropriate action or damage to her reputation.

The precise question for consideration of the Court was: Whether an Advocate, while acting under the instructions of his client and proceeding professionally, can be prosecuted/punished for the offence of defamation punishable under Section 500 IPC?

Rahul Tamaskar, Advocate for the petitioner contended that the petitioner was acting strictly in performance of his professional duty and he enjoyed privilege while acting as such. Chandresh Shrivastav, Deputy Advocate General, submitted that the present petition deserved to be dismissed. Punit Ruparel, Advocate submitted that the petitioner ignored the Duty to Opponent prescribed under Bar Council of India Rules.

The High Court was of the view that the petitioner was liable to be given the benefit of the ninth exception (imputation made in good faith by person for protection of his or others interests) to Section 499 (defamation) IPC. It was noted that the petitioner drafted the plaint on the basis of instructions provided by his client, the plaintiff. Referring to a plethora of Judicial Precedents, the High Court held: “an advocate, who acted professionally as per instructions of his/her client, cannot be made criminally liable for the offence of defamation under Section 500 IPC unless the contrary is alleged and established.” Finding the petitioner’s act to be bona fide, it was said: “As such, imputation was made in good faith and on the basis of instructions of his client in order to protect her right to property which she is claiming, as right to property is a constitutional right under Article 300A of the Constitution of India and therefore does not constitute the offence of defamation under Section 499 punishable under Section 500 and falls within the Ninth Exception to Section 499.”

In such view of the matter, the criminal proceedings pending against the petitioner before the Court of Chief Judicial Magistrate, Jabalpur was quashed.[Arun Thakur v. State of Chhattisgarh, 2019 SCC OnLine Chh 51, decided on 10-05-2019]

Case BriefsHigh Courts

Patna High Court: The Bench of Ahsanuddin Amanullah, J. quashed criminal proceedings against relatives of a man accused of torturing his wife and demanding dowry from her, holding that allegations against them were of general nature and as such, allowing proceedings against them to continue would amount to abusing the process of the Court.

The instant proceedings arose under Section 482 of the Code of Criminal Procedure, 1973 seeking quashing of a complaint case whereunder cognizance was taken against petitioner/husband under Section 498-A of the Penal Code, 1860 for demanding dowry and torture. Primary argument advanced on behalf of the opposite party 2/ wife was that her husband had remarried and was staying with two other wives at Mumbai and that he was refusing to accept her and her two sons without payment of Rs. 5 lakhs for purchase of a kholi.

Learned counsel for the petitioners Mr Uday Kumar submitted that they were the husband’s brothers and his sisters-in-law, who had nothing to do with the matrimonial discord between the parties. It was submitted that they had no objection if opposite party no. 2 and her two sons reside in the matrimonial/ancestral home of the husband.

The Court took note of judgment in Preeti Gupta v. State of Jharkhand, (2010) 7 SCC 667, where it was held that allegations against husband’s relatives must be scrutinized with great care and circumspection. It was observed that allegations against petitioners were general and omnibus in nature. Admittedly, the main grievance of the wife was against the husband.

It was opined that since the petitioners had taken a categorical stand to give sufficient place/space to the opposite party  2, as per share of her husband, in the ancestral/ matrimonial home, therefore letting the criminal proceeding against them to continue would be an abuse of the process of the Court. Accordingly, the application was allowed.[Bablu Khan v. State of Bihar, 2019 SCC OnLine Pat 386, decided on 27-03-2019]

Bail Application
Case BriefsHigh Courts

Himachal Pradesh High Court: The Bench of Tarlok Singh Chauhan, J. dismissed a petition being devoid of merit and also finding a gross abuse of process of the Court.

In the pertinent case the petitioner after his retirement from the service, filed for correction of his date of birth in the official order. The petitioner originally worked under the administrative control of Beas Control Board (BCB) where at the time of joining he got recorded his date of birth as 15-04-1950. The cases referred to by the Court were Bharat Coking Coal Ltd. v. Chhota Birsa Uranw, (2014) 12 SCC 570 and Union of India v. Harnam Singh, (1993) 2 SCC 162 wherein the issue was expressly dealt with. The petitioner in return produced his school leaving certificate, where the date of birth according to him was 15-4-1954 and not 15-4-1950.

The Court noted certain material facts:

– if the date of birth was 15-04-1954 and not 15-4-1950, as is being vehemently claimed by the petitioner, then it is impossible to fathom as to how his services could have been engaged by BCB at the age of about 15 years and he being minor at that time, under no circumstances, he could have been legally appointed.

-the petitioner, while in service of BCB, did not take any steps  whatsoever to get his date of birth corrected and the reason for the same is obvious because in case his service record would have been corrected on the basis of date of birth, then obviously his services were bound to be terminated being a minor.

-after attaining the age of superannuation on completion of 55 years, was granted three successive continuations and even during this period, he did not object to the date of birth.

The Court found this to be normally a fit case where the criminal prosecution should have been ordered against the petitioner for tampering with the official record, however, it refrained from passing any order to this effect taking into consideration that the petitioner has not only retired from service of the respondents, but is currently a senior citizen of about 65 years of age. Thus the petition was dismissed.[Dhani Ram v. Bhakra Beas Management Board, 2019 SCC OnLine HP 251, decided on 05-03-2019]

Case BriefsHigh Courts

Patna High Court: The Bench of Ahsanuddin Amanullah, J. quashed a criminal complaint as its jurisdiction purely fell within the ambit of a Civil Court.

The petitioners have approached this Court under Section 482 of the Code of Criminal Procedure, 1973 to quash a complaint filed for cheating under Section 420 IPC.

The complainant has alleged that despite having received the money consideration for the supply of 390 bags of Masoor the same was not delivered to the complainant. The petitioners through their counsel Sandeep Kumar and Rohit Raj have submitted that the above dispute relates to a financial transaction arising out of a commercial agreement between the parties and subsequent institution of a criminal case was an abuse of the process of the Court when a remedy has been given under the common civil law.

The Court was of the view that this does not call for any interference as an offence under Section 420 IPC cannot be instituted when the case was purely of a civil nature. Also, failure of payment or non-performance falls under the competent jurisdiction of the civil Court. Thus the application stood allowed. [Raj Kumar Gupta v. State of Bihar, 2019 SCC OnLine Pat 10, decided on 03-01-2019]