Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: In a case relating to the fire incident on 05.09.2022 at a well-known hotel, namely, Levana Suites, where four human lives were lost and many more are in a critical state, the division bench of Brij Raj Singh and Rakesh Srivastava, JJ. have taken a suo motu cognizance of the various digital and print reports relating to the incident of fire and observed that there is an exigent demand to ensure that such incidents do not occur in the future and issued certain directions.

The Court placed reliance on various newspaper reports and noted that the hotel in question did not even have an approved map, and the hotel was being operated on the basis of a residential map. It has been further noted that the hotel was operating in blatant violation of several fire safety rules, with outdated and inadequate fire safety equipment.

Further, the Court expressed surprise on the fact that, at the time when this unfortunate incident took place that the hotel was in possession of Non-Objection Certificate (NOC) of fire department even, when there was a clear lack of fire escape management system and violation of several fire related safety rules on its part. Further, the hotel was allowed to operate for several years without having proper fire exits in place.

The Court also noted that another fire broke out in a coaching centre, namely, Gravity Classes on 06.09.2022 within a space of a few hours; and that several hotels, coaching centres, hospitals and commercial establishments are operating across the city of Lucknow without validly sanctioned maps and fire safety measures, with total impunity.

The Court observed that “this is a very serious state of affairs, with very wide public health and safety ramifications, and the saddest part is that the loss of life and property was totally avoidable in nature, by mere adherence to the rules and regulations in place by the establishments, and its stricter implementation by the concerned authorities”.

Moreover, the Court viewed that “it is deeply concerning that thousands of residential and commercial establishments are allowed to flout the building and fire safety rules by the relevant authorities, and it is only when a major tragedy such as the said incident takes place, that these authorities wake up from their slumber and start taking proactive steps to seal and demolish such buildings”.

Placing reliance on the decision in M.I. Builders (P) Ltd. v. Radhey Shyam Sahu, (1999) 6 SCC 464, wherein the Court held that unauthorized constructions should be demolished, irrespective of the financial burden imposed upon the wrongdoers. Further, there is an urgent need to bring to book not only the builders flouting the norms, but also the officers who are involved in the raising of such illegal constructions.It further took note of the ruling in Dipak Kumar Mukherjee v. Kolkata Municipal Corpn.,(2013) 5 SCC 336 wherein the Court observed that it is imperative for the concerned public authorities to not only demolish such construction but also impose adequate penalty on the wrongdoer.

Thus, the Court directed the Vice-Chairman of the Lucknow Development Authority to be present before this Court on the next date of listing and directed him the following:

  • To file an affidavit detailing the number of establishments which are operating without proper building and fire permits in the city of Lucknow.

  • To bring on record as to how many commercial establishments are doing business without even a commercial map approval.

  • To ascertain the cases in which permits have not been issued, but illegally obtained.

  • To bring on record the steps being taken to curb this menace

  • To file an affidavit stating whether construction activities are being carried out as per approved land use; whether the map is sanctioned in accordance with the rules/ regulation governing the field; whether building completion certificate has been given by the Development Authority; whether the buildings in which commercial activity is being carried out have enough space for the movement of ambulance and fire brigade etc.

  • To bring on record the action taken, if any, by the authority against the officials found guilty in such cases.

Further, the Court directed the Chief Fire Officer to file his affidavit bringing on record the number of buildings, hospitals and commercial establishments which are operating without valid fire exits and equipment, and to clearly mention the number of NOCs which were found to have been wrongly given, in spite of the absence of proper adherence to the fire safety norms. It also directed the Public Interest Litigation Cell to register a suo motu Public Interest Litigation and requested Senior Advocate Jaideep Narain Mathur, and Advocate Meha Rashmi, to assist the Court in this matter by acting as Amicus Curiae. Moreover, the media was requested to produce relevant material on the basis of which they have reported the matter in the newspapers and the electronic media for the assistance of the Court.

The matter will next be taken up on 22.9.2022.

[In Re: Incidents of Fire at Levana Suites Hotel v. State of U P, 2022 SCC OnLine All 613, decided on 8.9.2022]

Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Devendra Kumar Upadhyaya and Rajnish Kumar, JJ. took cognizance of the PIL which was admitted by the previous order of the Court dated 07-04-2022 which was necessitated on account of the incident reported in the newspapers where some stray dogs not only attacked but killed a boy of very tender age and seriously injured his sister.

The Court had also directed the Chief Medical Officer to provide all medical assistance to the girl by keeping her admitted for treatment in King George Medical University. This Court had further directed that all possible medical treatment shall be given to the injured girl child without any charges. The Court appreciated the efforts of Chief Medical Officer, Lucknow and the Registrar and the Vice Chancellor of KGMU for the same.

The Court in the current hearing called upon Lucknow Nagar Nigam to file separate affidavits as to the legal position and compliance thereof by Nagar Nigam for ensuring the safety of street dogs after an application seeking intervention has been moved by Sri Kamal Sharma through Sri Amal Rastogi regarding the welfare of the animals.

In pursuance to the previous order wherein the Court had asked Additional Advocate General to apprise the District Magistrate, Lucknow about the incident and also to seek instructions as to how the family of the deceased boy child can be monetarily compensated on account of his tragic death in the incident, a letter was produced stating that sanction has been accorded to provide a sum of Rs.1,50,000/- to the family members of the deceased child from Lucknow Rifle Club. However, advocate appearing on behalf of the family members of the deceased child, Mohd. Kumail Haider argued that it is not in dispute that a human life has been lost in a horrifying incident which prima facie occurred on account of negligence in discharge of its duties by Nagar Nigam. If State or any of its instrumentalities fails to discharge its statutory or otherwise obligations and duties which becomes the cause of loss of human life, though such life cannot be compensated in any terms including in terms of money, however, surviving family members of the deceased are necessarily to be provided some solace by way of monetary compensation or otherwise.

The Court considering the argument directed the Lucknow Nagar Nigam to file an affidavit stating as to why adequate compensation of Rs. 10,00,000/- may not be awarded to the family of the deceased child. The Court also requested the amicus curiae Vijay Dixit, Abhishek Pratap and Mohit Pandey to give a written brief as to why and under what provision of law the family members of the deceased child can be compensated monetarily.

The matter is again listed for further hearing on 30-08-2022.

[Suo-Moto In Re- Menace Created By Stray Dogs v. State of U.P., 2022 SCC OnLine All 473, decided on 08-07-2022]

*Suchita Shukla, Editorial Assistant has reported this brief.

Madhya Pradesh High Court
Case BriefsHigh Courts

Madhya Pradesh High Court: The Division Bench of Rohit Arya and Milind Ramesh Phadke, JJ., admitted a petition which was filed to address and examine some issues:

1. Whether a self-styled Trust allegedly registered as Arya Samaj Vivah Mandir Trust can solemnize marriage between a Hindu boy and a Muslim girl?

2. Whether the said Trust has authority in law to issue marriage certificate?

3. Whether the said Trust in its aims and objects can indulge in such activities?

4. Whether the bylaws of the alleged Trust are duly ratified by the Registrar Public Trust or either under any Public Trust Act or other Act as the document doesn’t reflect so?

5. Whether on a mere declaration on affidavit or a notarized affidavit the Trust can convert religion of a Muslim girl as Hindu?

6. Whether the alleged Arya Samaj Vivah Mandir Trust by itself can be held to be an Arya Samaj Mandir which is solely for the purposes of solemnization of marriage having no affiliation or permission by the State/National body of the Arya Samaj Mandir?

Court hereby appointed Shri Faizal Ali Shah, a prominent Advocate of the Court to assist in the context of aforesaid questions with relevant literature and recitals of holy Kuran.

The Court was requested to look into the matter of hundreds of indiscriminate marriage certificates being issued to young boys and girls by such marriage shops on payment of huge amount without verification of their age and identities and no record was being maintained. It was prayed that the Court may also consider appointing a high-level police inquiry into the affairs of the instant Arya Samaj Vivah Mandir Trust.

Case has been listed for further hearing on 28-07-2022.

[Rahul v. State of Madhya Pradesh, 2022 SCC OnLine MP 1386, decided on 16-06-2022]


Advocates who appeared in this case :

Shri Suresh Agrawal, Advocate, for the petitioner;

Shri M.P.S. Raghuvanshi, Additional Advocate General with Shri Devendra Choubey, Government Advocate, for the State;

Shri Balwant Singh Billowria, counsel with Shri Prabhat Kumar Singh, Advocates, for respondent 6.


*Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Allahabad High Court: Expressing that Courts of law are meant for imparting justice, Sanjay Kumar Singh, J., observed that more often the process of Court is being abused by unscrupulous litigants to achieve their nefarious design.

By the application under Section 482 of the Code of Criminal Procedure, the applicants prayed for quashing of the entire criminal proceedings under Sections 406 IPC and Section 6 of the Dowry Prohibition Act on the basis of compromise arrived between the parties.

Complainant had filed a complaint arraigning the four accused inter alia with the allegations that the marriage of her daughter was fixed with applicant 1. Pre-marriage ceremonies were held, in which Rs 100,000 was given to Mahesh Yadav, one gold ring and sum of Rs 11,000. In addition, thereof, money and clothes were given to the person attended the ceromancies. The Complainant had also made the bookings of all necessary things for which about Rs 50,000 was given as advance. Later, demand of Rs 50,000, motorcycle, cash and gold chain was made by the accused.

In view of the complaint, the Magistrate summoned the applicants to face trial. The said summoning order has been challenged in the present application.

After this Court’s order on 3-32022, the applicants kept playing hide and seek with the Court and tried to obtain interim order from this Court by hook or crook and when the applicants failed to achieve their nefarious design, when the case was taken up by applicants counsel that the applicants were not responding to calls and the Court may pass orders.

In Court’s opinion, the applicants tried to misguide the Court by stating that compromise had been arrived between the parties, but the fact was that no compromise had been effected.

“…applicants have not approached this Court with clean hands and filed false affidavit before this Court that the matter has been compromised, therefore, he does not deserve any indulgence by this Court.”

“…it appears that the applicants have no respect to the orders of this court.”

Additionally, the Bench held that the judicial process cannot become an instrument for oppression for abuse or a means in the process of the Court to subvert justice, for the reason that the Court exercises its jurisdiction, only in furtherance of justice.

“The Courts have, over the centuries, frowned upon litigants, who, with intent to deceive and mislead the courts, initiated proceedings without full disclosure of facts.”

Lastly, the High Court held that the applicants had misused the process of law by filing an application under Section 482 Cr.P.C. on false facts that the matter has been compromised

Fairness, purity of mind should be of the highest order to approach the court, failing which the litigant should be shown the exit door at the earliest point of time.[Umesh Kumar Yadav v. State of U.P., Application U/S 42 No. 28762 of 2021, decided on 13-4-2022]


Counsel for Applicant :- Jaysingh Yadav

Counsel for Opposite Party :- G.A.,A Kumar Srivastava, Manish Kumar

Case BriefsSupreme Court

Supreme Court: In a case where the Magistrate had passed an order under Section 156(3) CrPC even in absence of an affidavit duly sworn by the complainant, the bench of BR Gavai* and Krishna Murari, JJ that many a times the applications under Section 156 (3) of the Cr.P.C. are filed in a routine manner without taking any responsibility only to harass certain persons and hence, such applications are to be supported by affidavits.

The Court held that, prior to the filing of a petition under Section 156 (3) of the Cr.P.C., there have to be applications under Section 154 (1) and 154 (3) of the Cr.P.C. Filing of an affidavit is necessary so that the persons making the application would be conscious and not make false affidavit. With such a requirement, the persons would be deterred from causally invoking authority of the Magistrate, under Section 156 (3) of the Cr.P.C. If the affidavit is found to be false, the person would be liable for prosecution in accordance with law.

Factual Matrix

The Court was deciding a case where the parties entered into various Agreements for Sale with respect to properties situated at Bangalore. It is the case of the appellants that, after receipt of the payments, the respondent was avoiding to get the Sale-deed registered. The respondent, on the other hand, filed a   complaint, almost after a period of two years from the date of institution of suits by the appellants, and almost after a period of one and a half year from the date on which written statement was filed by respondent, thereby making allegations of cheating. The allegations in the complaints were basically that the appellant No. 1, who is the son of appellant Nos. 2 and 3, had obtained blank stamp papers from the respondents and created Agreements for Sale by misusing the said blank stamp papers. As such, it is case of the respondents that, the appellants committed forgery and cheated them, and as such they are liable for punishment for offences punishable under Sections 420, 464, 465, 468 and 120-B IPC.

The Magistrate ordered that,

“In the complaint, the complainant has made serious allegations against the accused persons. Therefore, it appears this court that, it is just and proper to refer the matter to the jurisdiction police for   investigate and submit report.”

The Karnataka High Court also refused to interfere with the order.

Ruling

The Court held that the Magistrate was required to apply his mind before passing an order under Section 156 (3) of the Cr.P.C. It was further submitted that, unless an application under Section 156 (3) of the Cr.P.C. was supported by an affidavit duly sworn by the complainant, the Magistrate could not have passed an order under the said provision.

When the complaint was not supported by an affidavit, the Magistrate ought not to have entertained the application under Section 156 (3) of the Cr.P.C.

The Court was of the opinion that, though power to quash criminal proceedings should be exercised very sparingly and with circumspection and that too in the rarest of rare cases, there are certain category of cases wherein such power can be exercised for quashing proceedings.

One of such categories laid down in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 is,

“Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

In the case at hand, since the complaint was filed almost after a period of two years from the date of institution of suits by the appellants, the Court held that continuation of the present proceedings would amount to nothing but an abuse of process of law.

[Babu Venkatesh v. State of Karnataka, 2022 SCC OnLine SC 200, decided on 18.02.2022]


*Judgment by: Justice BR Gavai


Counsels

For Appellants: Advocate Abdul Azeem Kalebudde,

For State: Advocate Shubhranshu Padhi

Case BriefsHigh Courts

Allahabad High Court: Sameer Jain, J., decided that whether for summoning an accused under Section 138 of Negotiable Instruments Act, 1881, recording of statements under Section 200 and 202 of CrPC is required or not.

Instant application was filed under Section 482 CrPC to quash the proceedings of complaint case under Section 138 of the Negotiable Instruments Act pending before the IInd Chief Judicial Magistrate, Varanasi.

Applicant was summoned under Section 138 of the Negotiable Instruments Act.

A perusal of the summoning order showed that cheque issued by the applicant in favour of the Firm of OP 2 was dishonoured and thereafter, notices on behalf of OP. were given to the applicant for payment of the cheque amount but inspite of that, no payment was made. Ultimately OP 2 filed a complaint under Section 138 NI Act against the applicant.

As per Section 145(1) of the Negotiable Instruments Act, the evidence of the complainant may be given by him on affidavit, and for the summoning of accused under Section 138 NI Act, recording of statements under Sections 200 and 202 CrPC was not required.

It was noted in the present matter that, from the perusal of the summoning order, it was apparent that while passing the order, Magistrate perused the complaint as well as an affidavit in support of the complaint filed by OP 2 and other documents including cheque, etc. and therefore, in view of provisions of Section 145 (i) NI Act, it could not be said that trial court committed an error while summoning the applicant as there was no need to record the statements either under Sections 200 CrPC or 202 CrPC.

High Court relied on the Supreme Court decision of Expeditious Trial of Cases under Section 138 NI Act, 1881, In Re., AIR 2021 SC 1957, and stated that even on the basis of affidavit filed on behalf of the complainant, an accused can be summoned under Section 138 NI Act and there was no need to record statements under Sections 200 and 202 CrPC.

Therefore, no illegality was committed by the trial court while passing the summoning order against the applicant. [Virender Kumar Sharma v. State of U.P., 2021 SCC OnLine All 874, decided on 8-12-2021]


Advocates before the Court:

Applicant’s Counsel: Manoj Kumar Rai, K.C. Tripathi

OP’s Counsel: Govt. Advocate

Case BriefsCOVID 19High Courts

Orissa High Court: A Division Bench of S Muralidhar, CJ and Savitri Ratho, J., directed State to file an affidavit addressing concerns raised in the instant PIL.

The instant Public Interest Litigation was filed concerning numerous issues related to COVID-19 care and treatment and urgent directions were sought regarding the availability of RTPCR testing facilities at the rural and block levels throughout the State of Odisha.

Counsel for petitioners submitted that the existing facilities for testing are inadequate and with the suspension of public transport, there is considerable delay in samples being collected at the block levels and being sent to the District Headquarters for testing and for the results to be obtained. He also points out that isolation centers and ambulance services are not available in rural areas for critical patients.

The Court directed the State-Opposite Parties to file, by the next date i.e. 20th July, an affidavit of the Additional Chief Secretary, Department of Health and Family Welfare, Government of Odisha addressing the specific issues highlighted in the writ petition.

The matter is next posted on 20-07-2021.[Sanjiv Joshi v. State of Odisha, WP (C) No.18607 of 2021, decided on 06-07-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For petitioner: Mr S. Pattjoshi and Mr S.K. Nanda

For respondent: Mr M.S. Sahoo

Case BriefsHigh Courts

Orissa High Court: S. K. Panigrahi, J., dismissed the bail application being found defective as the affidavit was sworn by the advocate’s clerk.

 The facts of the case are such that FIR was registered against two persons who were arrested in connection with the case alleged commission of offence punishable under Section 395 of the Penal Code, 1860. Previously bail applications moved was filed by the petitioner before the learned SDJM, Koraput as well as the learned Additional Sessions Judge, Koraput which was rejected on the ground that if the petitioner is enlarged on bail, it would hamper the investigation. Aggrieved by the above order, the petitioner filed the instant application under Section 439 of CrPC seeking bail.

The Court found that the affidavit accompanying the petition has been filed by one Tophan Pradhan who is the advocate’s clerk-in charge who has sworn that he is looking after the case on behalf of the petitioner.

The Court observed that advocate’s clerk swearing an affidavit claiming to be “looking after” a case before this Court is in gross violation of the Orissa High Court Rules. Chapter VI – General Rules. The Court noted that the Courts have always come down heavily on the practice by initiating contempt proceedings where they have discovered that an advocate’s clerk has falsely signed an affidavit.

What is an affidavit? 

The word “Affidavit” has its roots in a Latin word that literally means to “pledge one’s faith.” An affidavit is an affirmation of truth. It is a willing declaration made in writing, signed by a deponent and accompanied by an oath to prove the veracity of its contents. In India, the law on affidavits is governed by Order XIX of the Code of Civil Procedure, 1908.

It is observed that the very essence of an affidavit lies in the fact that the person deposing the same, affirms on oath that all the representations made in the affidavit are true and correct to the best of his knowledge and “courts have strongly deprecated the practice of affidavits being sworn by someone who has no knowledge of the facts or who has no means of achieving said knowledge”.

The Court observed that the Advocate-client relationship is quite clearly accepted as a fiduciary relationship and the communication is privileged and confidential. It is strictly between the client and the Advocate. Neither the brief nor is the permission to represent a party to be shared by the Advocate with his clerk. An advocate’s clerk signing an affidavit instead of the party himself or a person designated/authorised by the party or the Advocate holding the Vakalatnama is unacceptable and such attempts to subvert the law is impermissible.

An advocate’s clerk as defined in The Orissa Advocates’ Clerks Welfare Fund Act, 2008 is as under:

“2 – b) “Advocates’ clerk” means a clerk employed by an Advocate and recognized by such authority and in such manner as may be prescribed and who is a member of an Advocates’ Clerks’ Association;”

The Court observed that an advocate’s clerk cannot swear affidavits in a perfunctory manner for petitions/applications on behalf of a party before the court, especially those which include facts beyond his personal knowledge or where he cannot completely explain how he derived knowledge of the facts he has affirmed. 

The Court relied on judgment Amar Singh v. Union of India, (2011) 7 SCC 69 wherein it was observed

“64. …..perfunctory and slipshod affidavits which are not consistent either with Order 19 Rule 3 CPC or with Order 11 Rules 5 and 13 of the Supreme Court Rules should not be entertained by this Court. In fact three Constitution Bench judgments of this Court in Purushottam Jog Naik [AIR 1952 SC 317], Barium Chemicals Ltd.[AIR 1967 SC 295] and A.K.K. Nambiar [(1969) 3 SCC 864] and in several other judgments pointed out the importance of filing affidavits following the discipline of the provision in the Code and the said Rules.”

Whether an advocate’s clerk is empowered to swear an affidavit?

 The Court relied on judgment Tamizhaga Panchalai Thozhilalar Sangam v. Presiding Officer, 2012 SCC OnLine Mad 3105

“23. Though under the Vakalat, an Advocate is authorised to appear and defend the proceeding, has the duty to represent the proceedings, a Party to the lis cannot fix responsibility on the clerk. The brief is not in held in trust, by the advocate’s clerk. Neither the Civil Rules of Practice nor the rules framed by the High Court to regulate the registration of recognized clerk and communicated to the lower courts, enable the pleader’s clerk to file an affidavit on behalf of the litigant. Where the Advocate’s clerk, has committed a bona fide or inadvertent mistake or there is an accidental omission, or typographical error in a pleading by the typist engaged by the pleader in his office, it is the litigant or the pleader, to file an affidavit, explaining the reasons for the said mistake, on the basis of his personal knowledge, or information, as to the facts pleaded. There cannot be any extension of the vakalat given to an Advocate, to a Clerk or to a typist, to any other employee, in the Pleader’s office, to act on behalf of a party. Authorisation given under Vakalat cannot be extended to an Advocate Clerk for the purpose of swearing an affidavit.”

 It was further observed that an advocate’s clerk who has no personal knowledge of the facts of the case, nor is independently empowered to swear such an affidavit is not permitted in law to file a token and mechanical affidavit. When the Rules clearly lay out the form, content and degree of knowledge required to be included in an affidavit, to ensure the reliability and veracity of the same, any affidavit which is not in strict consonance with the same has to be discarded.

Exceptions and their scope

Rule 4(iii) of the Orissa High Court Rules contemplates that in cases where this court exercises appellate powers, as in cases involving civil or criminal revision as well as cases where the Court is exercising its power of Review, a specific exception has been made wherein the affidavit by the parties may be dispensed with and the accompanying affidavit can be filed by an advocate’s clerk. This specific exception was made, perhaps, keeping in mind that in certain cases, as aforementioned, the records of the case are already present in the records of the Court. In such a situation, the advocate’s clerk is not required to furnish any additional new information or put forth any original fact. That is the only extent to which such an exception may be made.

The Court held the question of an affidavit being filed by an advocate’s clerk is impermissible and perverse. When a rule provides for an exception, it has to be strictly construed and cannot be diluted.”

Rules of affidavits summarized:

  1. An affidavit must strictly be restricted to the facts that the deponent is able to prove are within his own knowledge
  2. In certain situations, i.e., in interlocutory applications, if the deponent chooses to rely on other sources on which he bases his belief, the details of such person, document, etc. must clearly be stated and it must be explained how the information was procured;
  3. An affidavit may be presented either by the petitioner, or the declarant or the Pairokar, or advocate or such person as duly appointed in writing only;
  4. If a petition is filed from the judgment or order of a Subordinate Court, where the facts are borne out by the records of the Court, an affidavit signed and dated by the Advocate’s Clerk may be accepted as per Rules; and
  5. Any affidavit not in complete compliance with the provisions shall not be relied upon or used.

[Thabir Sagar v. State of Odisha, 2021 SCC OnLine Ori 679, decided on 18-06-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For Petitioner: Ms. Niranjan Lenka , H.K. Mohanta, N. Lenka, P.K. Barik and K.K. Pattnaik,

Advocates For Opposite Party: Mr. S.S. Mohapatra

Case BriefsHigh Courts

Karnataka High Court: John Michael Cunha J., allowed the petition partly stating that Section 156(3) CrPC applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate.

The facts of the case are such that Respondent 2 presented a private complaint under Section 200 of Criminal Procedure Code i.e. CrPC seeking reference of the matter for investigation to the Lokayukta Police under Section 156(3) of CrPC, in the interest of justice. The Special Judge, Special Court under Prevention of Corruption Act, Bengaluru referred the complaint to the Superintendent of Police, Anti-Corruption Bureau, Bengaluru, for investigation and for filing the report before the Court vide order dated 06-10-2016. This order is impugned in this petition on the ground that the procedure followed by the learned Special Judge is contrary to the law laid down by the Supreme Court in Priyanka Srivastava v. State of U.P., (2015) 6 SCC 287.

Counsel for the petitioners submitted that in the absence of any averments made in the complaint to the effect that Respondent 2/Complainant has exhausted the remedy under Sections 154(1) and 154(3) CrPC and there being no affidavit as mandated, the learned Special Judge has committed an error in referring the complaint about investigation under Section 156(3) of CrPC.

Counsel for the respondents submitted that the complaint was filed in the year 2012 much earlier to the law laid down by the Supreme Court in the year 2015 and as such, the principles laid down in the said decision cannot be applied to the facts of the case. Further, he submitted that non-filing of the affidavit may amount to a curable irregularity and the same does not amount to illegality vitiating the impugned order and thus, sought to dismiss the petition.

Relevant paras from the judgment titled Priyaka Srivastava v. State of U.P., (2015) 6 SCC 287 is below

“30. In our considered opinion, a stage has come in this country where Section 156(3) CrPC applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of the said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.”

“31. We have already indicated that there has to be prior applications under Sections 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an application under Section 156(3) be supported by an affidavit is so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.”

 The Court observed that when a specific prayer is made by the complainant to refer the complaint about investigation under Section 156(3) of CrPC, the principle laid down in the relied judgment above comes into force. It is mandated that when an application is filed under Section 156(3) of CrPC, the same shall be supported by an affidavit, so that the learned Magistrate could verify the truth of the allegations made in the complaint and also to obviate false and irresponsible complaints being filed invoking the jurisdiction of the criminal courts. The direction is binding on all the courts under Article 141 of the Constitution of India.

The Court thus held that the instant complaint was filed in the year 2012, but the order of reference was made only in the year 2016 subsequent to the law laid down by the in Priyanka Srivastava’s case (supra). Hence, the impugned order of reference made by the learned Special Judge cannot be sustained.

In view of the above, petition was allowed partly.[C.T. Ravi v. State of Karnataka,  2020 SCC OnLine Kar 1746, decided on 22-10-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsCOVID 19High Courts

Madras High Court: A Division Bench of R. Subbiah and R. Pongiappan, JJ. issued notice to T.N. Government to reply on the plea for declaring special holidays for certain industrial establishments.

Present petition was filed with the aim to seek direction to respondents 1 and 2 to pass orders notifying the period of lockdown from 24-03-2020 to 14-04-2020 as special holidays for industrial establishments, excluding establishments which were allowed to function, in terms of powers vested under Section 3(2) of Tamil Nadu (National, Festival and Special Holidays) Act.

Notice for respondents with regard to the above was taken by Additional Advocate General, S.R. Rajagopal assisted by Government Pleader V. Jayaprakash Narayanan and Special Government Pleader, E. Balamurugan.

Affidavit for the said to  be filed on 20-04-2020. [S. Ravindran v. Chief Secretary, Government of T.N.,  2020 SCC OnLine Mad 936, decided on 16-04-2020]

Hot Off The PressNews

Supreme Court: A bench headed by Justice Arun Mishra, JJ has reserved its order on the review petition filed by former Maharashtra chief minister, Devendra Fadnavis, seeking modification of it’s earlier order directing him to face the trial for allegedly not disclosing two pending criminal cases against him in his 2014 poll affidavit.

The court bench, headed by the then Chief Justice of India (CJI) Ranjan Gogoi, in its judgement in Satish Ukey v. Devendra Gangadharrao Fadnavis, 2019 SCC OnLine SC 1275, last year on October 1, had set aside the Bombay High Court order for Fadnavis’s alleged concealment of criminal cases against him in his 2014 election papers. It had said,

“we unhesitatingly arrive at the conclusion that the order of the learned trial Court upheld by the High Court by the impugned judgment and order dated 3rd May, 2018 is legally not tenable and the same deserves to be set aside which we hereby do. The complaint of the appellant will be considered afresh by the learned trial Court from the stage where it was interdicted by the order dated 30.5.2016.”

The Court, hence, held that the information to be furnished under Section 33-A of the Representation of the People Act, 1951 includes not only information mentioned in clauses (i) and (ii) of Section 33-A(1), but also information, that the candidate is required to furnish, under the Act or the Rules made thereunder and such information should be furnished in Form 26, which includes information concerning cases in which a competent Court has taken cognizance (Entry 5(ii) of Form 26). This is apart from and in addition to cases in which charges have been framed for an offence punishable with imprisonment for two years or more or cases in which conviction has been recorded and sentence of imprisonment for a period of one year or more has been imposed.

The Bombay High Court had earlier dismissed the plea filed by one Satish Ukey, seeking annulment of Fadanavis’s election to the Maharashtra assembly alleging non-disclosure of all pending criminal cases against him. Ukey had later approached the Top court challenging the Bombay High Court’s order.
In his appeal, Ukey had said that Fadnavis while submitting his nomination from South West assembly constituency in 2009 and 2014 had allegedly suppressed the information about two pending criminal cases against him.

(With inputs from ANI)

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab & Haryana High Court: Surinder Gupta, J. dismissed a petition dealing with the question whether accused under Negotiable Instruments Act, 1881 should be allowed to give his evidence in affidavit similar to that of a complainant.

The petitioner was facing trial in a complaint filed under the provisions of NI Act and sought permission from the trial court to submit his evidence through affidavit but the trial court refused to grant permission for the same while relying on observations in case of Mandvi Cooperative Bank Limited v. Nimesh B Thakore, (2010) 3 SCC 83.

Counsel for the petitioner, R.S. Rai argued that in the case of India Bank Association v. Union of India, (2014) 5 SCC 590 the accused was granted permission to submit his evidence on affidavit with the guideline that accused may submit his affidavit unless there is a justified ground to deny such permission. Further, the counsel argued that the order of trial court relying on observation of Mandvi Cooperative Bank Limited case was not sustainable.

While denying the petition and holding the order of trial court valid, the High Court stated the observation laid down by the Supreme Court in the case of Mandvi Cooperative Bank Limited that there is a basic difference in the nature of evidence of complainant and accused in a case of dishonoured cheque and it is wrong and unjustified to draw analogy between both, the Supreme Court opined that accused may not be able to provide any evidence and if any evidence is provided the nature of it may not be necessarily documentary and the defence will try to lead other kinds of evidences to rebut the presumption that the issuance of cheque was not in the discharge of any debt or liability. The Supreme Court discarded the observation laid down by High Court that Section 145(1) lays down the provision of filing an affidavit by the complainant so it can be assumed that accused can also file a similar affidavit.

Further, the Court opined that in case of Indian Bank Association the Supreme Court was dealing with the issue of setting guidelines/directions to be followed by the courts while trying complaints under Section 138 of the Negotiable Instrument Act that deals with dishonoured cheque and insufficiency in funds.

It was held that the law laid down in the Mandvi Cooperative Bank Limited case had not been dissented. Thus, the decision of the trial court was upheld and the petition was dismissed. [Rajni Dhingra v. Sanjeev Chugh, 2019 SCC OnLine P&H 2464, decided on 05-11-2019]

Case BriefsSupreme Court

Supreme Court: In a major blow to Maharashtra CM Devendra Fadnavis, the 3-judge bench of Ranjan Gogoi, CJ and Deepak Gupta and Aniruddha Bose, JJ has noticed that Fadnavis had knowledge of the two cases against him which had not been mentioned in the affidavit filed by the him along with his nomination papers. The Court, hence, held

“we unhesitatingly arrive at the conclusion that the order of the learned trial Court upheld by the High Court by the impugned judgment and order dated 3rd May, 2018 is legally not tenable and the same deserves to be set aside which we hereby do. The complaint of the appellant will be considered afresh by the learned trial Court from the stage where it was interdicted by the order dated 30.5.2016.”

According to the complainant Satish Ukey, in the affidavit in Form-26, prescribed by the Conduct of Election Rules, 1961 (hereinafter referred to as “the 1961 Rules”), which had accompanied the nomination papers of Fadnavis, details of two cases in which cognizance was taken, have not been mentioned.

Noticing that a contesting candidate is mandated to furnish information concerning the cases in which a Competent Court has taken cognizance along with the cases in which charges have been framed. The Court noticed that a bare perusal of Form-26 makes it abundantly clear that, for offences punishable with imprisonment for two years or more, while entry (5) (i) mandates disclosure of information by the contesting candidate regarding the case(s) that is/are pending against him in which charges have been framed by the Court; entry (5)(ii) mandates disclosure of information by the contesting candidate regarding cases that are pending against him in which cognizance has been taken by the Court. The Court, also said,

“subsequent to the substitution of Form 26 in 2012, the new Form 26 (as in vogue at the time of the elections in 2014), mandates the disclosure of information by the contesting candidate of not only case(s) in which charges have been framed but also case(s) in which cognizance has been taken by the Court”

The Court, hence, held that the information to be furnished under Section 33-A of the Representation of the People Act, 1951 includes not only information mentioned in clauses (i) and (ii) of Section 33-A(1), but also information, that the candidate is required to furnish, under the Act or the Rules made thereunder and such information should be furnished in Form 26, which includes information concerning cases in which a competent Court has taken cognizance (Entry 5(ii) of Form 26). This is apart from and in addition to cases in which charges have been framed for an offence punishable with imprisonment for two years or more or cases in which conviction has been recorded and sentence of imprisonment for a period of one year or more has been imposed.

[Satish Ukey v. Devendra Gangadharrao Fadnavis, 2019 SCC OnLine SC 1275, decided on 01.10.2019]

Patna High Court
Case BriefsHigh Courts

Patna High Court: The Division Bench of Amreshwar Pratap Sahi, CJ and Anjana Mishra, J. dismissed an appeal challenging election of a village mukhiya.

Appellant herein had filed an election petition assailing the election of Respondent 3 as mukhiya of a village on the ground of non-disclosure of his assets and liabilities as per the Bihar Panchayat Raj Act, 2006. This petition was dismissed and the writ petition challenging Election Commission’s order was also dismissed. Hence, the present appeal.

Counsel for the appellant contended that nomination paper of Respondent 3 was improperly accepted as he had not filled up details of his assets and liabilities. An affidavit was filed later declaring such assets and liabilities to supplement respondent’s nomination papers but the same was a manipulated document inasmuch as it had been manually stamped while other documents were stamped through a franking machine.

Learned counsel for the respondent objected to the maintainability of election petition for not being verified in accordance with Rule 108 of the Bihar Panchayat Raj Rules, 2006. Further, the sole ground raised in the petition was non-disclosure of assets; no challenge was raised in relation to the affidavit filed by the respondent. The subject affidavit was accepted with the nomination papers before the Assistant Returning Officer who scrutinized the same and thereafter declared Respondent 3’s nomination valid. The nomination could not have been declared to be valid in the absence of requisite declaration and therefore there was a valid presumption under the law regarding the existence of this fact.

The Court observed that the casual manner in which petition had been verified was a serious defect. Argument regarding the non-existence of affidavit could not have been appreciated without a petition being verified on the basis of records available. Further, once the defense of supplemental affidavit had been raised, then the burden lay on the election petitioner to dislodge the same by summoning the Assistant Returning Officer.  It was held that the acceptance of affidavit by the Returning Officer without any objection from the appellant or election petitioner provided a clear presumption of fact regarding the validity of nomination of Respondent 3. Lastly, since the issue regarding stamping of an affidavit was not pleaded or advanced either before the learned Single Judge or the Election Tribunal, therefore it could not be raised at this juncture.

In view of the above, the appeal was dismissed for being bereft of merits.[Ram Roop Devi v. State of Bihar, 2019 SCC OnLine Pat 44, Order dated 11-01-2019]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of CJ Ranjan Gogoi and U.U. Lalit and K.M. Joseph, JJ. while hearing petitions concerning the “Rafale Fighter Jets” asked the  Centre to submit the pricing details for the same within a period of 10 days.

The Bench stated that “strategic and confidential” information need not be shared. Further, the Court in response to Attorney General K.K. Venugopal’s submission regarding “reservations about disclosing the details of pricing of the jets which were not disclosed even in Parliament”, said that “if pricing is something exclusive and you are not sharing it with us, please file an affidavit and say so.”

Further, the bench also stated that “What has been questioned is bonafide of the decision making process and price/cost at which the same is to be procured.”

Therefore, in the present order the bench has stated that further details that could legitimately come in the public domain with regard to the induction of the Indian offset partner (if any) be also furnished to the learned counsels for the parties, as well as ,
the petitioners in person.

Background:
In its earlier order Manohar Lal Sharma v. Narendra Damodardas Modi, 2018 SCC OnLine SC 1920:

The Court stated in categorical terms that “information which was sought would not cover the issue of pricing or the question of technical suitability of the equipment for purposes of the requirements of the Indian Air Force.” The requisite information was directed to be placed before the Court in three separate sealed covers on or before 29 October 2018, to be filed with the Secretary General of the Court.

The matter is further listed for 14-11-2018. [Manohar Lal Sharma v. Narendra Damodardas Modi,2018 SCC OnLine SC 2278, Order dated 31-10-2018]

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu & Kashmir: A Single Judge bench comprising of Sanjay Kumar Gupta, J. dismissed a civil writ petition seeking quashing of trial court’s order directing filing of affidavits of witnesses.

Brief factual matrix is that the petitioner is one of the defendants in a suit for partition pending in the lower court wherein she has filed a list of witnesses. Principal District Judge, in the said suit, took cognizance of the said list of witnesses and directed her to file evidence by way of affidavit of the witnesses. This order was challenged by the petitioner contending that the said order is vitiated on account of not following the proper course of law because as a normal course, enforcement of appearance of the witnesses is through summons by the court unless the party citing witnesses can produce them on their own.

The High Court noted that despite a clear direction for conclusion of proceedings within a period of six months, the trial could not be completed because the defendants had failed to tender evidence and disregarded multiple orders passed to that effect by the trial court. It was also noted that the petitioner did not place the contention raised herein before the trial court on all such occasions when the interim orders were passed and as such the present writ petition was a mere dilatory tactic adopted to delay the course of trial.

Relying on the judgment in Rasiklal Manickchand Dhariwal v. M.S.S. Food Products, 2012 (2) SCC 196 it was held that the as per Order XVIII Rule 4 and 5 CPC, the examination-in-chief of a witness has to be tendered by way of affidavit in every case – whether appealable or non-appealable; and on that holding the writ petition was dismissed. [Manorma Sharma v Sahib Saran Khajuria, 2018 SCC OnLine J&K 640, Order dated 14-09-2018]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of Ranjan Gogoi, R. Banumathi and Navin Sinha JJ., expressed it’s wholly unsatisfactory view on the affidavit filed by Centre on 23-07-2018 in regard to appointment of Lokpal.

During the hearing, Attorney General K K Venugopal submitted an affidavit and stated that a meeting of the selection committee was held but the names for the search committee were not finalised.

Advocate Prashant Bhushan, appearing for petitioner NGO Common Cause, said the Centre has not specified the date of the next meeting and they were actually delaying the appointment of a Lokpal despite passage of a law nearly five years ago.

In view of the dissatisfaction shown by the Supreme Court in regard to the affidavit filed, the Attorney General for India asked the Court to indicate the nature of the detailed particulars that are to be considered necessary to be incorporated in the affidavit to be filed. The matter to be listed in 4 weeks. [Common Cause v. Ajay Mittal, 2018 SCC OnLine SC 737, dated 24-07-2018]

Hot Off The PressNews

Supreme Court: The Division Bench comprising of AK Sikri and Ashok Bhushan JJ., expressed its disappointment in regard to non-compliance of its order given in Disabled Rights Group v. Union of India, (2018) 2 SCC 397, decided on 15-12-2017, which talked about disabled-friendly public institutions.

The bench stated that “We have not said anything new in our judgment of 15-12-2017. It was your (Centre) law and we just asked you to comply with it. We are not running the government. It’s you who has to follow the law and order.”

The Apex Court had issued an 11-pointer directive that included making public institutions, transport and educational institutions disabled friendly.

Further, in a fresh petition, the Supreme Court issued notices to the registrar generals of all High Courts and the Secretary-General of the Supreme Court in regard to making judiciary disabled-friendly.

Therefore, the Supreme Court giving due regard to its earlier directions in the above-mentioned case asked Centre to file an affidavit within a period of 4 weeks giving details of the steps taken so far and the timeline for completing the work as had been stated in Disabled Rights Group v. Union of India, (2018) 2 SCC 397.

[Source: PTI]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of Anuja Prabhudessai, J., decided a writ petition, wherein it was held that Section 28 (2) of the Protection of Women from Domestic Violence Act, 2005 allows the court to permit evidence by way of an affidavit in an application under Section 12 of the Act.

A short question arose in the petition; whether in an application under Section 12 of the Act, the applicant could be permitted to file affidavit in evidence? The respondent-wife was married to the petitioner-husband. The matrimonial dispute resulted in filing of a divorce petition by the petitioner. The respondent also filed an application under Section 12 of the DV Act. In the course of proceedings, the petitioner contended that the proceedings under the Act were to be dealt with in the manner prescribed under Section 125 CrPC and therefore, the respondent could not be allowed to file affidavit in evidence. He sought a direction to call the respondent in the witness box to adduce evidence.

The High Court perused the Act as well as various decisions of High Courts and the Supreme Court and observed that a cumulative reading of Section 28(1) read with Rule 6(5) indicates that in deciding the application under Section 12, the Court has to follow the procedure prescribed under Section 126 of CrPC and thus, record evidence in presence of the parties. It is however to be noted that Section 28(2) clearly provides that “Nothing in sub-section (1) shall prevent the Court from laying down its own procedure for disposal of an application under Section 12 or under Section 23(2)”. The opening words of Section 28(2) viz. “Nothing in sub-section (1) shall prevent the Court” clearly indicate that notwithstanding the procedure prescribed in Section 28(1) read with Rule 6(5), the Court is empowered to lay down its own procedure in deciding the application under Section 12 or 23(2) of the DV Act. The DV Act is a beneficial piece of social welfare legislation aimed at providing to the victims of domestic violence speedy relief, which are civil in nature. Having regard to the object and scope of the Act, this provision cannot be given a narrow interpretation which will have an effect of rendering it redundant, surplus or otiose.

Holding that the court in its discretion can allow evidence on affidavit and permit cross-examination to test veracity of the evidence, the petition was dismissed. [Aniket Subhash Tupe v. Piyusha Aniket Tupe, 2018 SCC OnLine Bom 601, decided on 22.3.2018]