bribe

Case BriefsSupreme Court

   

Supreme Court: In a case wherein the appeal challenged the final judgment and order passed by the High Court of Madras (High Court) in writ petition, filed by the respondent seeking quashing of proceedings initiated against him under the provisions of Prevention of Money Laundering Act, 2002 (PML Act), the Division Bench of UU Lalit, CJ. and Bela M. Trivedi, J. held that the respondent was involved in the activity connected with proceeds of crime and hence, liable under the provisions of the PML Act.

Facts of the Case

Andasu (Appellant 1) was working as Additional Commissioner of Income Tax and on intelligence, the Central Bureau of Investigation (CBI) checked the car that was parked in front of the premises of the Andasu’s house and recovered Rs. 50,00,000 in cash. It was alleged that Andasu and Uttam (Appellant 3) were in that car at that time. During investigation, it was found that the sum of Rs. 50,00,000 was handed over to Andasu by Padmanabhan (Appellant 2/Respondent), whose income tax file was pending with Andasu for clearance and since Padmanabhan wanted certain benefits, he had paid Rs. 50,00,000 as bribe to Andasu.

CBI then registered an FIR and after the completion of the investigation, filed a charge sheet before the Special Court for the CBI Cases for the offences under Section 120-B of the Penal Code, 1860 (IPC) and Sections 7, 12 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (PC Act) against the appellants. Since the case registered by CBI disclosed the commission of a ‘schedule offence’ under the PML Act, the Enforcement Directorate registered a case and after completing the investigation, filed a complaint against Everonn Education Limited and three others including Padmanabhan for the offences under Sections 3 read with Section 4 of the PML Act.

The respondent contended that the amount in question, till it was in the hands of the respondent, cannot be said to be tainted money and it assumed such character only after it was received by the public servant and therefore, respondent cannot have said to related to proceeds of crime and cannot be proceeded against the provisions of the PML Act.

Questions for Consideration

1. Whether the respondent can be proceeded against under the provisions of the PML Act?

2. Whether the role played by respondent could come within the purview of Section 3 and 4 of the PML Act?

Analysis, Law and Decision

The High Court accepted the contention of the respondent with the following observations:

“For attracting the penal provisions of the PML Act, the accused should have projected the proceeds of a crime as untainted money. The sum of Rs. 50,00,000 became the proceeds of a crime only when Andasu accepted it as a bribe. Even before Andasu could project the sum of Rs. 50,00,000 as untainted money, the CBI intervened and seized the money in the car. Therefore, the prosecution of Padmanabhan under the PML Act, is misconceived.”

The High Court thus allowed the writ petition and quashed the proceedings in PML Act against Padmanabhan. This decision was under challenge before this Court.

The definition of proceeds of crime under Section 2(1)(u) of the PML Act is as follows:

“2. Definitions. — (1) In this Act, unless the context otherwise requires, —

xxx xxx xxx

(u) “proceeds of crime” means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property or where such property is taken or held outside the country, then the property equivalent in value held within the country or abroad;

Explanation. — For the removal of doubts, it is hereby clarified that “proceeds of crime” include property not only derived or obtained from the scheduled offence but also any property which may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence;”

Paragraph 8 of Part-A of the Schedule to the PML Act deals with offences under the PC Act. Sections 7, 12 and 13 of which are stated as follows:

“Section 7 – Offence relating to public servant being bribed.

Section 12 – Punishment for abetment of offences.

Section 13 – Criminal misconduct by a public servant.”

The definition of “proceeds of crime” in PML Act means any property derived or obtained by any person as a result of criminal activity relating to a scheduled offence. The offences punishable under Sections 7, 12 and 13 are scheduled offences, as is evident from paragraph 8 of part-A of the Schedule to the PML Act. Thus, any property derived as a result of criminal activity relating to the offence mentioned in said paragraph 8 of Part-A of the Schedule would certainly be “proceeds of crime”.

Further, Section 3 of the PML Act states that whoever knowingly assists or knowingly is a party or is actually involved in any process or activity connected with proceeds of crime including its concealment, possession, acquisition, or use shall be guilty of the offence of money laundering.

The Court opined that “It is true that so long as the amount is in the hands of a bribe giver and till it does not get impressed with the requisite intent and is actually handed over as a bribe, it would definitely be untainted money. If the money is handed over without such intent, it would be a mere entrustment. If it is thereafter appropriated by the public servant, the offence would be of misappropriation or species thereof but certainly not of bribe. The crucial part therefore is the requisite intent to hand over the amount as bribe and normally such intent must necessarily be antecedent or prior to the moment the amount is handed over. Thus, the requisite intent would always be at the core before the amount is handed over. Such intent having been entertained well before the amount is actually handed over, the person concerned would certainly be involved in the process or activity connected with “proceeds of crime” including inter alia the aspects of possession or acquisition thereof. By handing over money with the intent of giving bribe, such person will be assisting or will knowingly be a party to an activity connected with the proceeds of crime. Without such active participation on the part of the person concerned, the money would not assume the character of being proceeds of crime. The relevant expressions from Section 3 of the PML Act are thus wide enough to cover the role played by such person”.

Therefore, it was quite clear that the respondent was prima facie involved in the activity connected with the proceeds of crime and the view taken by the High Court that the respondent could not be held liable for the offence under the PML Act was completely incorrect. Thus, the Court allowed the appeal and set aside the judgment and order passed by the High Court.

[Directorate of Enforcement v. Padmanabhan Kishore, 2022 SCC OnLine SC 1490, decided on 31-10-2022]

Advocates who appeared in this case :

Balbir Singh, Additional Solicitor General, for the Appellant(s);

S. Nagamuthu, Senior Advocate, for the Respondent(s).

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: While dealing with a corruption case, Lisa Gill, J., allowed the bail petition preferred by the petitioner against the trial upon FIR dated 24-05-2022 and held that as the trial is not likely to conclude in the near future, no useful purpose would be served by keeping the petitioner incarcerated.

The FIR was registered under Sections 7 and 8 of the Prevention of Corruption Act, 1988 on the statement of one serving Superintendent Engineer of the Punjab Health System Corporation.

Facts:

The petitioner is a dentist by profession and also is an elected representative member of the Legislative Assembly in the State of Punjab. At the time of FIR, he was holding the portfolio of the Minister of the Department of Health. As per the FIR, the Officer on Special Duty (‘OSD’) with the petitioner called the complainant to set up a meeting with the petitioner. Due to some hurry, the petitioner left the meeting telling the complainant that whatsoever is told by the OSD be deemed to be said by the petitioner.

Arguments:

The counsel for the petitioner submits that due to this falsely implicated FIR, the image of the petitioner is tarnished, and his popularity is diminished. He submits that the allegations in the FIR do not constitute an offence. He also contends that the allegations are unsubstantiated by any evidence and the entire case is set up. He contends that the entire case is based on the telephonic conversation between a person who claims to be the OSD of the petitioner and the complainant. He also submits that the petitioner has been in custody since 24-05-2022. He points out that the complainant has never asked for recovery and neither has he sought it in this case. It was brought to the notice of the Court that the petitioner has no criminal history.

The respondent contended that the OSD, in the meeting, asked for a huge amount which the complainant refused to pay as he did not have that much money and agreed upon a sum that he could arrange to save himself from harassment. The complainant also stated that he was threatened to the extent that his career would be spoiled if he refused to pay the money. The complainant also mentioned that he is about to get retired, so not to spoil it and put such a person on deputation who agrees to pay the bribe amount. Hence, the complainant through this to take action against the petitioner and the OSD.

Observation and Analysis:

The Court observed that there is no reference to any evidence on record except for the said conversation. On the information given by the Advocate General, Punjab, the Court observed that the investigation is complete, and it is verified that the petitioner does not have any criminal record. Hence, the Court while allowing this petition held that the trial is not likely to conclude in the near future and no useful purpose would be served by keeping the petitioner incarcerated any longer.

[Vijay Singla v. State of Punjab, 2022 SCC OnLine P&H 1858, decided on 08-07-2022]

Advocates who appeared in this case :

For the Petitioners: Mr. Vinod Ghai, Senior Advocate, assisted by

Ms. Kanika Ahuja, Advocate

Ms. Kirti Ahuja, Advocate

Mr. Edward Augustine George, Advocate

Ms. Mahima Dogra, Advocate

For the Respondent: Dr. Anmol Rattan Singh, Advocate General, Punjab, assisted by

Mr. V.G. Jauhar, Senior DAG, Punjab

Mr. Pratham Sethi, Advocate.

Rouse Avenue
Case BriefsDistrict Court

Rouse Avenue Court, New Delhi: While granting bail to the applicant Pramond Kumar Bhasin, Ajay Gulati, J. observed that the charge sheet has not even mentioned the role of the applicant in demanding the alleged bribe from NGO GOREF even though the employee of an NGO Ganga Orthopedic Research and Educational Foundation ‘GOREF’ who is said to have paid the bribe to the applicant through a Hawala operator, was arrested and subjected to custodial interrogation.

Ajay Gulati J granted bail to Pramod Kumar Bhasin who is a public servant accused and arrested for allegedly extracting bribe from NGO’s / institutions/ missionaries whose applications for renewal of eligibility to receive foreign grants and funds were pending in the FCRA Division, Ministry of Home Affairs. The bail was granted observing various irregularities in the investigation and in light of other accused(s) been granted bail subject to certain conditions.

Facts and legal trajectory:

The applicant is a public servant who was arrested for demanding and accepting bribes from NGOs. Allegedly, as per the FIR, the applicant demanded a bribe of Rs. 2 lakhs for processing the file of an NGO named GOREF, and received Rs. 1.5 lakhs from GOREF via its employee Mr. E. Vageesh, through a Hawala Operator. Additionally, it was also alleged in the FIR that the applicant used to handle all of his ill-gotten money through Hawala operators. In fact, during the alleged handing over of an instalment of a bribe of Rs. 4 lakhs from an alleged Hawala operator named Gajanand Sharma., one of his henchmen, Robin Devdass, was arrested red-handed by the CBI. Further, as alleged in the FIR, the applicant is said to have demanded bribes from several other NGOs as well.

It was detailed in the charge-sheet that an investigation has been conducted regarding the role of the applicant in contacting alleged Hawala operators for the handling of his ill-gotten money and also in accepting an alleged bribe of Rs. 1 lakh from a representative of Srijan Foundation- Swapan Manna, which was delivered to another Hawala operator named Vimal Tawaniya. The alleged Hawala operator Pawan Kumar Sharma was in turn handed over the said bribe by Vimal Tawaniya who is also a listed accused in the FIR

Analysis and findings:

In the Court, the Public Prosecutor for CBI strongly opposed the bail application on the ground that the role of the applicant is very serious in nature, and he is suspected to be the king-pin of the entire conspiracy involving illegal renewals of various NGOs/missionaries to receive foreign funding, for illegal monetary gains under Foreign Contribution (Regulation) Act, 2010 ‘FCRA’

The Court noted that neither the alleged hawala operators, Gajanand Sharma and Vimal Tawaniya nor the representative of Srijan Foundation, Swapan Manna have been arrested although they have been mentioned in the charge sheet along with the present applicant. Further investigation has been kept pending, as per the charge sheet.

The Court observed that although in the FIR, the role of the applicant has been highlighted for demanding bribes from various NGOs and routing the alleged bribe received through Hawala operators, the charge sheet mentions only one such foundation which is Srijan Foundation. Additionally, the charge sheet has not even mentioned the role of the applicant in demanding the alleged bribe from NGO GOREF even though Mr. E. Vageesh, an employee of GOREF who is said to have paid the bribe to the applicant through a Hawala operator, was arrested and subjected to custodial interrogation. The court noted that the role of the applicant regarding the case of NGO GOREF seems to have been completely forgotten by the investigating officer. The court also noted that the applicant has been in custody for a period of over two months as of the day of this hearing.

On a specific query by the Court, the Public Prosecutor for the CBI submitted that he has seized the FCRA files of NGO GOREF and Srijan Foundation. However, the Court observed that there was no explanation provided as to why was the representative of Srijan Foundation and the alleged Hawala operator who was asked to handle the alleged bribe paid by Srijan Foundation, have not even been arrested despite being mentioned in the charge sheet. The Court reiterated the observation that was made while granting bail to E. Vageesh who allegedly paid the bribe to the applicant on behalf of NGO GOREF that the CBI has been adopting double standards in regard to the accused persons having same set of allegations appearing against them.

Thus, the Court concluded that the alleged Hawala operators Pawan Kumar Sharma and Ramanand Pareek who have handled the ill-gotten money of the applicant, and Mr. Anish Selvaraj (private person) who was allegedly working in close conspiracy with the applicant to contact the NGOs who were ready to pay bribes for getting their pending FCRA files expedited, have already been granted bail. Consequently, the bail application was allowed subject to some conditions.

[Pramod Kumar Bhasin v. CBI, 2022 SCC OnLine Dis Crt (Del) 28, decided on 21-07-2022]

Appearance by:  

For Accused: Sumer Singh Boparai, Abhishek Pati, Nikhil Pahwa & Sidhant Saraswat

Case BriefsSupreme Court

Supreme Court: In a highly controversial extortion case of about Rs. 200 crores in Delhi’s Tihar jail, the 3-judge Bench of Uday Umesh Lalit, S. Ravindra Bhat, and Sudhanshu Dhulia, JJ., has directed conman Sukash Chandra to reveal names of the persons involved in the alleged crime syndicate.

The petitioner, Sukash Chandra Shekhar-infamously known as Conman Sukash for extorting about Rs 200 crores while sitting in a cell of Delhi’s Tihar jail-had filed the instant petition under Article 32 of the Constitution alleging that he was subjected to threats and was a victim of extortion racket run by some of the officers of the prison where he is presently lodged. Asserting that his health and safety are in danger, he has prayed for various reliefs including his transfer from Tihar jail.

Earlier, by the order dated 17-06-2022, the Court had directed the authorities concerned to suggest the appropriate jail for transferring conman Sukash to which the respondents had suggested that Mandoli jail in Delhi, which is guarded by paramilitary forces, would be appropriate. However, the respondents had pressed that shifting of the petitioner from Tihar Jail is unwarranted. Similarly, the Enforcement Directorate had also approached the Court seeking vacation/recall of order dated 17-06-2022.

On the contrary, the Commissioner of Police, NCT of Delhi (Respondent 2) asserted that while being inside Tihar Jail, the petitioner was running a crime syndicate and was paying approximately Rs. 1.5 crores every month for getting certain facilities, including mobile phone, without any hindrance, to pass messages to the members of his syndicate. It was further alleged that some of the jail officials were on a monthly payroll of the petitioner.

Relying on the assertions made by Respondent 2, counsel for the petitioner, Senior Advocate R. Basant submitted that Respondent 2 itself had accepted that the jail officials were receiving certain money from and on behalf of the petitioner. It was further submitted that during the period between July, 2020 to August 2021, the amounts paid by the petitioner or on his behalf aggregated to about Rs. 12.5 crores, major part of which was in cash.

However, on being asked by the Court as to who were the persons who made payments on behalf the petitioner, the petitioner expressed his inability to respond to the query immediately, only to add later that the persons could be identified from the affidavit submitted in reply. The Court noted,

“If we go by the assertions made in the affidavit in response, while being in jail, the petitioner was able to garner support from outsiders who paid Rs. 12.5 crores on his behalf to the public servants or other interested persons.”

Opining that in order to come to the conclusion, whether the petitioner was subjected to extortion (as asserted in the petition) or he was running a crime syndicate and was bribing his way through (as asserted by the respondents), it would be necessary to understand the identity of the persons and the manner in which they made the payments on behalf of the petitioner, the Court directed the petitioner to submit a list of persons, giving all the details as to the payments made by any and every one of them and to whom the payments were made.

The matter is listed on 26-07-2022 for further hearing.

[Sukash Chandra Shekhar v. Union of India, 2022 SCC OnLine SC 894, decided on 13-07-2022]

Advocates who appeared in this case :

AOR Aftab Ali Khan, Senior Advocate R. Basant and Advocates Ashok K. Singh, Ankita Baluni, Sandeep Kumar Bhardwaj, Deepak Kumar, Akshay Sahay, Sonakshi Monga, Tanishq Mehta, Advocates, for the Petitioners;

SG Tushar Mehta, ASG S.V. Raju, ASG K.M. Nataraj, AOR Mukesh Kumar Maroria, AOR Gurmeet Singh Makker, Zoheb Hossain, Piyush Beriwal, Rajat Nair, Sairica Raju, Swati Ghildiyal, Anand Kirti, Advocates, for the Respondent(s).

Hot Off The PressNews

The IBBI Disciplinary Committee has issued an ex-parte interim order due to the urgency of the matter and suspended the registration of Mr Subrata Monindranath Maity as an Insolvency Professional.

Read the directions issued by IBBI, here: Interim Order

Background

The Central Bureau of Investigation had arrested Subrata Monindranath Maity regarding the demand for the undue advantage of Rs 20,00,000/-.

On perusal of the FIR against the Insolvency Professional, it was observed that the allegations were serious in nature leading to contravention of multiple provisions of the Code including Section 208(2)(a) of the Insolvency and Bankruptcy Code,2016 (the Code) read with regulations 7(2)(a), 7(2)(b), 7(2)(h) and 7(2)(i) of the IBBI (Insolvency Professionals) Regulations, 2016 and clauses 1, 2, 3, 5, 9, 12, 14, 17, 24 and 28 of the Code of Conduct specified thereunder.

The above-said raised serious questions about him being ‘fit and proper’ to continue as an IP.

His arrest is bound to hamper the ongoing processes being handled by him, and therefore would jeopardise the interest of concerned stakeholders.

Insolvency and Bankruptcy Code of India

[Notification No. IBBI/DC/95(Interim)/2022]

[Interm Order dt. 9-5-2022]

Case BriefsSupreme Court

Supreme Court: In an interesting case where the Division Bench of Sanjay Kishan Kaul* and M.M. Sundresh, JJ., was to answer whether pending criminal appeal, and with the sentence being suspended, could the DCRG be directed to be released on the construction of the applicable rules, the Bench resolved the issue against the employees and held there was not statutory mandate that DCRG should be released to the respondents pending consideration of the criminal appeal.

The moot question before the full Bench of the Kerala High Court was whether on conviction in a criminal case for violation of integrity norms in performance of official duties and an appeal pending before the High Court, is the employee still entitled to the release of his Death-cum-Retirement Gratuity (DCRG). The High Court, by the impugned judgment had ruled in favour of the employees and had held that the recovery under Rule 3 of Kerala Services Rules could only be against pension and not DCRG, and Rule 3A insofar as it permitted DCRG to be withheld was struck down.

The Rules in Question

The Rule 3 of Kerala Services Rules reads as:

“withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to government if in a departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement…”

Whereas, Rule 3A provides that:

“3-A. (a) Where any departmental or judicial proceedings is instituted under Rule 3 or where a departmental proceeding is continued under clause (a) of the proviso thereto, against an employee who has retired on attaining the age of compulsory retirement or otherwise he shall be paid during the period commencing from the date of his retirement to the date on which, upon conclusion of such proceeding final orders are passed, a provisional pension not exceeding the maximum pension which would have been admissible on the basis of his qualifying service up to the date of retirement, or if he was under suspension on the date of retirement up to the date immediately preceding the date on which he was placed under suspension, but no gratuity or death-cum-retirement gratuity shall be paid to him until the conclusion of such proceeding and the issue of final orders thereon.”

Noticeably, Rule 3 in the KSR deems continuation of service in the case of a delinquent servant even after superannuation if any departmental or judicial proceedings are initiated, for the limited purpose of their finalisation. In the event of an order of dismissal being passed, even after retirement, the Government servant would have to forfeit his pension and DCRG.

Impugned Judgment

The High Court read the Rule 3 of the KSR as empowering the Government to punish the delinquent employee by withholding, withdrawing or reducing, for a specified period or permanently, the pension payable or to order recovery for any  pecuniary loss, but again only from the pension. The Court opined that the same could not be done from the DCRG. While, Rule 3A of the KSR was opined to be only tailored towards the effective implementation of Rule 3 and could not have any separate or distinct consequences.

Noting that the Rule 3A has two parts, the Court observed that the first part dealt with certain conditions on the disbursal of pension in the cases of a continuing proceeding while the second part allowed DCRG or gratuity to be withheld until the conclusion of the proceedings. By the impugned judgment, the second part was held to have an unnecessary penalising effect on an employee while proceedings are pending and would have onerous consequences if the proceedings ended in exoneration since the provision did not contemplate any modality for re-compensation if the DCRG is paid after a long period of time.

Further, observing that Note 2 to Rule 3 provided that the word ‘pension’ did not include DCRG and, that that liabilities could be recovered from DCRG only after giving the employee a reasonable opportunity to explain, the Court held that the recovery under Rule 3 could only be against pension and not DCRG, and Rule 3A insofar as it permitted DCRG to be withheld was struck down.

Analysis and Interpretation by the Court

Noticeably, the State in its wisdom had preferred to await the outcome of criminal proceedings in the instant case and had not initiated any separate departmental proceedings. Rule 3 of the KSR provides that Government reserves to themselves the right to withhold or withdraw a pension or any part of it, whether permanently or for a specified period, and all its ramifications. Further, the word pension is clarified by Note 2, as it would not include DCRG. Thus, DCRG and pension have been dealt with as separate aspects.

However, on the further reading of Note 2, which provides that the liabilities fixed against an employee or a pensioner can be recovered from DCRG without the departmental/judicial proceedings but after giving an employee or pensioner concerned a reasonable opportunity to explain, the Bench opined,

“If any part of DCRG was not supposed to be available for recovery of amounts, there would be no reason of inclusion of this aspect of DCRG in Note 2 and a view to the contrary would make the latter part of Note 2 otiose.”

The Bench observed that Note 2 is further clarified by Ruling 3, which stipulates that Note 2 does not mean that the employee’s or pensioner’s consent should be obtained for recovering the liabilities from DCRG. What has been contemplated is only a communication of such liabilities to him so as to enable him to submit his explanation. Thus, this Ruling No.3 also deals with the DCRG. Therefore, the important aspect before the Bench was whether Rule 3A is to be construed in the context of Rule 3 or should be read independently of itself. The High Court had sought to take a view that Rule 3A is in a sense assisting Rule 3 and does not have any independent existence. The Bench stated,

“The High Court, in our view, has introduced a new legislation by undertaking the exercise of reading down. We do believe that there is absolutely no need to do so when the language of the rule is so clear conveying its intended meaning without any ambiguity.”

Holding that it was a very restrictive view to disburse DCRG on account of the proceedings against a pensioner coming to an end, even where a conviction had arisen, specially where the convicted person has availed of the remedy of appeal, the Bench reiterated that an appeal is a continuation of the proceedings in trial and would be, thus, a continuation of judicial proceedings.  Therefore, pendency of the appeal cannot disentitle the State from withholding the DCRG, considering that it is a hiatus period within which certain arrangements have to be made which would be dependent on the outcome of the appeal.

Conclusion

In the light of the above, the Bench concluded that Rule 3A could not be read in isolation nor the latter part of it struck down as done by the High Court. Rule 3, Note 2, Ruling 3, and Rule 3A have to be read in conjunction as they provide for the treatment of the DCRG in case of disciplinary or judicial proceedings pending at the stage of retirement.

Accordingly, the impugned judgment was set aside holding that it could not be opined that the DCRG would have to be released to the respondents pending consideration of the criminal appeal.

[Local Self Government Department v. K. Chandran, 2022 SCC OnLine SC 318, decided on 15-03-2022]

*Judgment by: Justice Sanjay Kishan Kaul

Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsSupreme Court

Supreme Court: In a case where the Karnataka High Court had reversed the judgment of Karnataka Administrative Tribunal directing compulsory retirement of a Government Servant after being found guilty of bribery, the bench of Dr. DY Chandrachud* and Surya Kant, JJ has held that acquittal of a person in the course of the criminal trial does not impinge upon the authority of the disciplinary authority or the finding of misconduct in the disciplinary proceeding.

Factual Background

  • The respondent, working as a Village Accountant at Revathagao in Indi Taluka of Bijapur District in Karnataka, was charged for demanding a bribe for deleting the name of a person from Column No. 11 of the RTC with regard to land bearing Survey No. 54, situated at Shirdona Village.
  • A criminal complaint was registered with the Lokayukta police against the respondent for the commission of an offence punishable under Sections 7 and 13(1) (d) read with Section 13 (2) of the Prevention of Corruption Act 1988.
  • After the investigation, a charge sheet was submitted against the respondent by the Lokayukta police in Special Case No. 20 of 2011 in the Court of Special Judge at Bijapur, who gave the benefit of doubt to the respondent and acquitted him of all charges.
  • A disciplinary enquiry was initiated under Section 7(2) of the Karnataka Lokayukta Act 1984 and the Lokayukta held that the charge against the respondent was proved and recommended the penalty of compulsory retirement from service.
  • The disciplinary authority held that the misconduct was proved and imposed a penalty of compulsory retirement.
  • Aggrieved by the penalty, the respondent moved the Karnataka Administrative Tribunal. The Tribunal upheld the order of compulsory retirement.
  • The Karnataka High Court set aside the judgment of the Tribunal.

Disciplinary enquiry vis-à-vis Criminal Trial

The principles which govern a disciplinary enquiry are distinct from those which apply to a criminal trial. In a prosecution for an offence punishable under the criminal law, the burden lies on the prosecution to establish the ingredients of the offence beyond reasonable doubt. The accused is entitled to a presumption of innocence. The purpose of a disciplinary proceeding by an employer is to enquire into an allegation of misconduct by an employee which results in a violation of the service rules governing the relationship of employment. Unlike a criminal prosecution where the charge has to be established beyond reasonable doubt, in a disciplinary proceeding, a charge of misconduct has to be established on a preponderance of probabilities. The rules of evidence which apply to a criminal trial are distinct from those which govern a disciplinary enquiry. The acquittal of the accused in a criminal case does not debar the employer from proceeding in the exercise of disciplinary jurisdiction.

Scope of Judicial Review

In the exercise of judicial review, the Court does not act as an appellate forum over the findings of the disciplinary authority. The court does not re-appreciate the evidence on the basis of which the finding of misconduct has been arrived at in the course of a disciplinary enquiry. The Court in the exercise of judicial review must restrict its review to determine whether:

  • the rules of natural justice have been complied with;
  • the finding of misconduct is based on some evidence;
  • the statutory rules governing the conduct of the disciplinary enquiry have been observed; and
  • whether the findings of the disciplinary authority suffer from perversity; and (vi) the penalty is disproportionate to the proven misconduct.

Ruling

The Court observed that none of the above tests for attracting the interference of the High Court were attracted in the present case. The Karnataka Administrative Tribunal having exercised the power of judicial review found no reason to interfere with the award of punishment of compulsory retirement. The Division Bench of the High Court exceeded its jurisdiction under Article 226 and trenched upon a domain which falls within the disciplinary jurisdiction of the employer. The enquiry was conducted in accordance with the principles of natural justice. The findings of the inquiry officer and the disciplinary authority were held to be sustainable with reference to the evidence which was adduced during the enquiry. Hence, the acquittal of the respondent in the course of the criminal trial did not impinge upon the authority of the disciplinary authority or the finding of misconduct in the disciplinary proceeding.

[State of Karnataka v. Umesh, 2022 SCC OnLine SC 345, decided on 22.03.2022]

*Judgment by: Justice Dr. DY Chandrachud

Counsels

For appellant: Advocate V N Raghupathy

For Respondent: Advocate Ashwin V Kotemath

High Court Round UpLegal RoundUp

112 significant Reports from 22 High Courts

 

Allahabad High Court

 Right to Reputation

People using cyberspace to vent out anger and frustration by travestying key-figures holding highest office in country, is abhorrent and violates right to reputation

Sanjay Kumar Singh, J., expressed that,

“The internet and social media has become an important tool through which individuals can exercise their right to freedom of expression but the right to freedom of expression comes with its own set of special responsibilities and duties.”

Read full report here…

Corruption

Corruption is a termite in every system; a root cause of all problems but has to be put to account

While expressing that medical and legal fields are more a service than a profession especially the stream of oncology which deals with life and death, Krishan Pahal, J., held that “Corruption is a termite in every system.”

Read full report here…

Andhra Pradesh High Court

Bail

”…being an educated man and Software Engineer, he is not justified in making such irresponsible comments against the Judiciary and the High Court”, Bail denied

Cheekathi Manavendranath Roy J. dismissed the criminal petition and granted bail to the accused advocates and denied bail to accused software engineer.

Read full report here…

Reckless Driving

In the case of reckless driving, injured party will have to always prove that either side was negligent?

The Division Bench of Dr Kaushal Jayendra Thaker and Ajai Tyagi, JJ., while addressing a case of negligent driving, expressed that,

“…if the injury rather death is caused by something owned or controlled by the negligent party then he is directly liable.”

Read full report here…

Evidence

Prosecution must stand on its own legs basing its findings on the evidence that has been led by it

Siddhartha Varma, J., held that it is the bounden duty of the enquiry officer to have seen whether the charges were proved on the basis of the evidence which was led by it.

Read full report here…

Bombay High Court

Nomination of a Councillor

Can a nominated Councillor be appointed as Leader of the House under Maharashtra Municipal Corporation Act, 1949? 

“The term ‘elected Councillor’ in Section 19-1A would necessarily have to be read as an exclusion and bar to any other Councillor i.e ‘nominated Councillor’ to become the Leader of the House.”

Read full report here…

Negligence

When a person suffers injury without any negligence on his part, but result of combined effect of negligence of two other persons: Is it a case of composite or contributory negligence?

Expressing that, Negligence does not always mean absolute carelessness, but want of such a degree of care as required in particular circumstances, Vinay Joshi, J., held that no absolute standard can be fixed as to what constitutes negligence differs from case to case.

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License

To operate in State of Maharashtra, Uber and other unlicensed aggregators to apply for license before 16th March 2022

The Division Bench of Dipankar Datta, CJ and Vinay Joshi, J., directed UBER and other transport aggregators who have not obtained a license as per Section 93(1) of the Motor Vehicles Act to apply for the license before 16th March 2022 otherwise they shall not be able to operate in the State of Maharashtra.

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State Quota

If an aspirant has not completed her 10th and 12th standard from State of Maharashtra, can she still be covered under State Quota of Maharashtra for M.B.B.S?

The Division Bench of S.V. Gangapurwala and S.G. Dige, JJ., addressed a matter wherein an aspirant of M.B.B.S Course approached the Court praying that the petitioner be considered in State Quota from NRI Quota.

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IBC

Can Additional Sessions Judge or Sessions Judge try offences under Insolvency and Bankruptcy Code, 2016?

Sandeep K. Shinde, J., held that Special Court which is to try offences under the Insolvency and Bankruptcy Code, 2016 is the Special Court established under Section 436(2) (b) of the Companies Act, 2013 which consisted of Metropolitan Magistrate or Judicial Magistrate First Class.

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Parent’s Property

When parents are alive, can a son claim his share in the property of his parents?

The Division Bench of G.S. Patel and Madhav J. Jamdar, JJ., held that Asif i.e. son has no rights in his father’s flats.

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Film ‘83’

No stay on OTT Release of film ‘83’: Bom HC | Netflix and Star India already have antecedent rights, both digital and satellite for 10 years

While refusing to restrain Star India and Netflix from streaming the film ‘83’ on their respective broadcasting portals, R.I. Chagla, J., observed that, prospective owner of copyright in a future work may also assign to any person the copyright in the future work.

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Child in Conflict

When a Child in Conflict with Law is to be tried as an adult, an assessment under S. 15 of the Juvenile Justice (Care and Protection of Children) Act, 2015 is required to be done?

M.G. Sewlikar, J., held that, in terms of Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2015, Juvenile Justice Board has to make assessment into heinous offences to determine whether CCL is to be tried as an adult.

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Currency Notes

Can Currency Notes in police custody pre-demonetisation, be replaced with current valid tender?

The Division Bench of G.S. Patel and Madhav J. Jamdar, JJ., addressed a matter concerning currency notes pre-demonetisation and their replacement with current valid tender.

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Karta

Daughters and widow of a deceased would inherit properties of deceased as tenants in common or joint tenants?

Mangesh S. Patil, J., expressed that, by virtue of Section 19 it has been explicitly made clear that if two and more heirs succeed together to the property and in the estate, they take the property as tenants in common and not as joint tenants.

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Calcutta High Court

Rape

Penetration even of the slightest degree is necessary to establish the offence of rape; Court modifies order after 8 years of imprisonment

“It is settled law penetration even of the slightest degree is necessary to establish the offence of rape.”

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Tax

No intention of any evasion of tax; Court directs refund of penalty and tax paid on protest

Md. Nizamuddin, J. decided on a petition which was filed challenging the impugned order of the appellate commissioner confirming the original order passed by the adjudicating authority under section 129 of the West Bengal Goods and Services Act, 2017 for detention of the goods in question on the grounds that the e-way bill relating to the consignment in question had expired one day before, i.e. in the midnight of September 8, 2019, and that the goods was detained in the morning of September 9, 2019 on the grounds that the e-way bill has expired which is even less than one day and extension could not be made and petitioner submits that delay of few hours even less than a day of expiry of the validity of the tenure of the e-way bill was not deliberate and willful and was due to break down of the vehicle in question and there was no intention of any evasion of tax on the part of the petitioner.

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Repealed Acts

Whether the orders passed under a repealed Act be executed? Court discusses

Rajasekhar Mantha, J. disposed of a petition observing that the Supreme Court is the only authority to clarify  whether the orders passed under a repealed Act can be executed or not

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Breach of Contract

Parties to agreement of sale consciously changing their relationship cannot seek relief on the basis of previously established relationship

The Division Bench of Soumen Sen and  Ajoy Kumar Mukherjee, JJ., dismissed an appeal concerned with a breach of contract. The appeal arose out of a judgment in a suit for recovery of possession and injunction. Trial Court had decreed the suit on contest and dismissed the counter claim filed by the defendant.

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Detention Order

Detention order quashed due to lack of opportunity of hearing in the matter of S. 129 of the West Bengal Goods and Service Tax Act, 2017

Md. Nizamuddin, J. disposed of a petition which was filed challenging the impugned order passed by the Deputy Commissioner of Revenue on the ground that the said impugned order was bad in law for the reasons that the petitioners being the owner of the goods in question, which had been detained without giving any opportunity of hearing to the petitioners under the relevant provision of Section 129 of the West Bengal Goods and Service Tax Act, 2017.

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GST Act

The interest of revenue has been safeguarded; Order of detention against the State upheld in matter of GST Act

The Division Bench of T. S. Sivagnanam and Hiranmay Bhattacharyya, JJ., dismissed an appeal and connected application which was filed by the State against the order of detention passed by the authority detaining two trucks containing consignment of steel and other products in WPA 17611 of 2021 dated: 07-12-2021 wherein petitioner was the wife of late Mohit Madhogoria, who was a registered dealer under the provisions of the W.B.V.A.T. Act presently under the GST Act.

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Chhattisgarh High Court

Compassionate Appointment

Illegitimate child’s right to be considered for Compassionate appointment

Sanjay K. Agarwal, J., held that an illegitimate son would be entitled to consideration on compassionate ground and cannot be denied consideration on the ground that he is the illegitimate son of the deceased Government servant.

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Rape

In view of changed definition of rape under S. 375 (b) of  IPC pari materia to S. 3(b) of POCSO Act, whether sexual intercourse is necessary to attract ingredients of offence of rape or penetrative sexual assault?

Addressing a case wherein a minor girl was subjected to sexual, Deepak Kumar Tiwari, J., held that,

In view of the changed definition of rape under Section 375 (b) of the IPC pari materia to Section 3(b) of the POCSO Act, sexual intercourse is not necessary to attract the ingredients of offence of rape or penetrative sexual assault.

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Delhi High Court

Dishonour of Cheque

To prove that cheque amount was larger than debt due, can defence of Issuer be looked at stage of issuing summons?

While addressing a matter revolving around Section 138 of the Negotiable Instruments Act, 1881, Subramonium Prasad, J., held that Courts should primarily proceed on the averments in the complaint, and the defence of the accused cannot be looked at the stage of issuing summons unless it can be shown on admitted documents which the Supreme Court described as “unimpeachable in nature and sterling in quality” to substantiate that there was no debt due and payable by the person who has issued the cheque or that the cheque amount is large than the debt due.

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If a cheque is not honoured by issuer and even after a legal notice he doesn’t pay, he is bound to face criminal trial

Rajnish Bhatnagar, J., dismissed a matter revolving around the dishonour of cheque under Section 138 of the Negotiable Instruments Act.

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Yes Bank Loan Fraud

Public money under garb of Term loan siphoned off, resulting in generation of ‘proceeds of crime’ as well as its layering and ultimate projection as untainted money: Del HC while denying bail to Gautam Thapar

While addressing a matter wherein bail of Gautam Thapar accused in Yes Bank Loan Fraud case, was sought, Manoj Kumar Ohri, J., expressed that it is well settled that, economic offences constitute a class apart and need to be visited with a different approach, given their severity and magnitude. Albeit these offences are likely to adversely impact the economic fabric of the country, bail shall not be denied to a person accused of an economic offence in a routine manner.

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Jurisdiction

Can partners in dispute of an LLP or any other business entity carrying out business in different parts of country, file suit in any place where business is carried out?

Amit Bansal, J., expressed that an LLP or any other business entity can carry out business in different parts of the country, but that would not mean that a suit with regard to disputes between the partners, could be filed in any place where the business of the firm/LLP is carried out.

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Ownership of YouTube Channel

Who ‘owns’ a YouTube channel?: Del HC passes interim directions in dispute over channel ‘Shabad Kirtan Gurbani – Divine Amrit Bani’

Asha Menon, J., considered a very interesting case where the dispute between the parties is regarding the ownership of a YouTube channel. The Court has found a prima facie case in favour of the plaintiff and issued certain directions.

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Bail

On pretext of removing evil spirit from body of a woman who was bipolar in nature, a man lured woman and committed sexual intercourse, but ADJ granted bail: Will HC cancel his bail? Del HC analyses

Mukta Gupta, J., cancelled the bail of an accused who lured a female on the pretext of removing an evil spirit from her body and further committing sexual intercourse with her.

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Theft

Daughter-in-law thrown out of matrimonial home and accused of removal of letters from possession of matrimonial home: Whether Del HC will find her guilty under S. 380 IPC or not?

Chandra Dhari Singh, J., noted that instant dispute has arisen out of matrimonial discord between two people which had also, led to the filing of more than 50 criminal and civil cases between not only the husband and the wife but also their family members. It was found that for the sole purpose of harassing the other party such cases were filed by persons with no just cause or reason and substantial ground for allegations.

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Right of Residence

Right of residence under DV Act is exclusive to and isolated from any right that may arise under S. 9 of Hindu Marriage Act, 1955

“The existence of the strained relationship between the Petitioner and the Respondent has been well established by the fact that there are more than about 60 criminal and civil cases pending between the parties.”

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Desertion and Cruelty

Wife leaves matrimonial home and never returns after several requests and legal notice under S. 9 of HMA, alleges husband of several cruelties without any evidence: Would it amount to desertion and cruelty by wife?

Noting the separation of 12 years between the husband and wife, the Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., found that the wife had subjected the husband to desertion and cruelty, hence decree of divorce be granted.

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Accusation of extra-marital relationship is a grave assault on character, status, reputation as well as health of spouse against whom such allegations are made: Would this come under ambit of cruelty?

While addressing a matter surrounding the issue of cruelty by wife, the Division Bench of Vipin Sanghi, ACJ and Dinesh Kumar Sharma, J., expressed that,

“It has repeatedly been held that accusations of unchastity or extra marital relationship is a grave assault on character, status, reputation as well as health of the spouse against whom such allegations were made.”

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Arbitration and Conciliation Act

Del HC dismisses appeal filed by Indiabulls Housing Finance in Zee Entertainment – Sony Pictures Scheme of Arrangement

Suresh Kumar Kait, J., addressed an appeal under Section 37(2)(b) of the Arbitration and Conciliation Act, 1996 against the interim order passed by Arbitrator was preferred.

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Mere use of the word ‘Arbitration’ in the heading of an Agreement would mean existence of an arbitration agreement?

Mukta Gupta, J., decided that mere use of word ‘Arbitration’ in the heading of an Agreement would not mean the existence of an arbitration agreement.

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Religious Structure

State obligated to remove unauthorized constructions from public land, but if it is a religious structure, can State still be obligated to do so?

Expressing that, the mere fact that certain encroachments represent religious structure cannot possibly detract State from its obligation, Yashwant Varma, J., held that, State remains duty-bound to remove all unauthorized constructions which may exist on public land.

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Extraordinary Writ Jurisdiction

Extraordinary writ jurisdiction is to be exercised only in rare cases or certain contingencies in the interest of justice, including exceptional cases

Chandra Dhari Singh, J., expressed that it is settled law that the power to issue writ has its own well-defined limitations imposed by the High Courts, one of which was the availability of alternative efficacious remedy.

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Power to Transfer Cases

Can Chairman of CAT on his own motion, without any notice, transfer any case pending before one Bench for disposal to another Bench?

The Division Bench of D.N. Patel, CJ and Jyoti Singh, J., held that the Chairman of Central Administrative Tribunal has been conferred the power to transfer a matter from one Bench to another, on his own motion, without any application from any party.

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Right to Speedy Trial

Incarcerated for 8 years for an offence punishable with minimum 10 years imprisonment: Violation of Right to Personal Liberty and Right to Speedy Trial

Subramonium Prasad, J., remarked that,

“…achievement of universal equality before the law requires the tenets of personal liberty to be applicable to all similarly circumstanced individuals and must not be restricted unless according to procedure established by law.”

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Arms License

If you are found in possession of live ammunition along with a valid arms licence, can an offence under S. 25 of Arms Act still be registered against you?

Deciding a matter of whether an NRI person in possession of two live ammunitions with a valid license can be registered under Section 25 of Arms Act or not, Asha Menon, J., held that, prima facie no malafide intent was found and the licence found was a valid arms licence.

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Right of Putative Father

Right of Putative Father to visit minor child upheld: Del HC

Upholding the rights of the putative father, V. Kameswar Rao, J., expressed that while determining and granting such rights, more so when the child is of less than 3 years of age, surely his well-being/welfare is of paramount importance

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Issuance of Notice

Section 292BB of Income Tax Act deals with failure of service of notice or failure to issue notice?

The Division Bench of Manmohan and Dinesh Kumar Sharma, JJ., addressed a matter wherein the decision of Income Tax Appellate Tribunal for the Assessment Year 2011-12 was challenged.

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RTI Act

Employees of a security establishment cannot be deprived of their fundamental and legal rights just because they work in an intelligence and security establishment

Expressing that, RTI Act is a tool that facilitates the employees and officers in airing their grievances systematically, the Division Bench of Manmohan and Sudhir Kumar Jain, JJ., remarked that,

“…both service and RTI laws ‘act like a safety valve in the society’.”

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Maternity Leave

Can maternity leave benefits extend beyond the period when contractual period of an ad hoc employee comes to an end?

In a claim of maternity benefit by a contractual employee, the Division Bench of Rajiv Shakdher and Talwant Singh, JJ., expressed that, The Maternity Benefit Act, 1961 Act is a social legislation that should be worked in a manner that progresses not only the best interest of the women-employee but also of the child, both at the pre-natal and post-natal stage.

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Unmarried Daughters

Can unmarried daughters claim expenses of marriage from their parents under the Hindu Adoptions and Maintenance Act, 1956?

While stating that, in Indian society, normally expenses are required to be incurred for pre-marriage and also at the time of marriage, the Division Bench of Goutam Bhaduri and Sanjay S. Agrawal, JJ., held that unmarried daughters have a right to claim expenses of marriage from their parents under the Hindu Adoptions & Maintenance Act, 1956.

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SC Collegium December Meeting

 

Newspaper reports are of no evidentiary value and Courts would be transgressing their well settled limitation if cognizance were to be taken of such unsubstantiated and unverified reports

In a matter wherein, details were sought with regard to Supreme Court Collegium meeting held on 12-12-2018, Yashwant Varma, J., expressed that, newspaper reports are of no evidentiary value and Courts would be clearly transgressing their well-settled limitation if cognizance were to be taken of such unsubstantiated and unverified reports.

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Gujarat High Court

Reasoning in Judgment

Providing reasoning is to give it a value of precedent which can help in reduction of frivolous litigation; Court emphasises on recording reasons in judgments

“It is trite that in a delay application, sufficient cause is the paramount consideration and if sufficient cause is shown, the Court should generally condone the delay. However, if the sufficient cause is imbibed with the laxity on the part of the delayer despite due knowledge, then Court should restrain itself from encouraging such practice and condone the delay.”

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GSTR-6 Return

Court allows writ furnishing the GSTR – 6 return for recording and distributing the ISD credit

“Credit was a tax paid by the registered person on input transactions and such tax already paid to the credit of the Central Government was a vested right of the person. Such vested right cannot be defeated on account of any irregularity in the system evolved by the Government.”

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NDPS

No Conscious possession; Court upholds acquittal under NDPS Act

The Division Bench of S.H. Vora and Sandeep N. Bhatt, JJ., dismissed an application for special leave to appeal which was filed feeling aggrieved and dissatisfied with the judgment and order in NDPS Case whereby the trial Court acquitted the respondent 2 herein-original accused 2 of the offences punishable under Sections 8(c), 20(b) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”).

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Detention Order

Simplicitor registration of FIR/s by itself cannot have any nexus with the breach of maintenance of public order; Detention order quashed

Rajendra M. Sareen, J. allowed a petition which was directed against the detention order passed by respondent–detaining authority in exercise of powers conferred under section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985 (“the Act”) by detaining the petitioner-detenue as defined under section 2(b) of the Act.

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Gauhati High Court

Sexual offences against minor cannot be compromised by parents; HC rejects application to enforce compromise

Arun Dev Choudhury, J., held that sexual offences against minor cannot be compromised by parents.

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Himachal Pradesh High Court

Rape

Minor girl students raped and subjected to penetrative sexual assault by their teacher: Sanctity of Teacher-Student relationship polluted

Polluting the sanctity of the relationship of the teacher and students, a teacher committed rape and penetrative sexual assault with minor students, the Division Bench of Sabina and Satyen Vaidya, JJ., noting the harrowing incidents expressed that the said is a sad reflection of the present-day society where a most platonic relationship was exploited.

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Jharkhand High Court

Execution of a Will

Testamentary disposition of property is deviation from natural line of inheritance in lesser or greater degree: Can it result in complete disposition in favour of one heir or exclusion of any other heir?

Expressing that the due execution of a Will is to be proved as per the provisions of law as laid down in Evidence Act as well as that if Indian Succession Act,  Gautam Kumar Choudhary, J., remarked that, a probate court being a Court of conscience, the intention of the testator is paramount and it is the bounden duty of the Court to ascertain the real WILL of the testator if any.

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Karnataka High Court

Domestic Violence Act

Whether the maintenance awarded under the Domestic Violence Act can be sought to be enhanced under the CrPC?

“The language employed in Section 127 of the Cr.P.C. is unequivocal as on a proof of change in the circumstances of any person receiving allowance under Section 125 of Cr.P.C. can maintain a petition under Section 127 of the Cr.P.C.”

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Criminal Proceedings

SC-ST Act is prospective or retrospective? Kar HC quashes criminal proceedings for offences committed in the year 1975

Krishna S Dixit J. quashes the criminal proceedings as the SC-ST act is not retrospective in nature.

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Hijab Ban

16 pointer report on why wearing of Hijab is not a part of essential religious practice in Islam

“Dismayed as to how all of a sudden that too in the middle of an academic term the issue of hijab is generated and blown out of proportion, Court remarked that some ‘unseen hands’ are at work to engineer social unrest and disharmony in the way ‘hijab imbroglio’ unfolded.”

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The uniform can exclude any other apparel like bhagwa or blue shawl that may have the visible religious overtones

“The Holy Quran does not mandate wearing of hijab or headgear for Muslim women rather it was traditionally worn as a measure of social security” 

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POCSO

Whether victim under POCSO Act can be permitted to be cross-examined once she turns hostile?

M Nagaprasanna J. allowed the petition and quashed the impugned order and remitted the matter back to Sessions Judge for cross-examination

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Marital Rape

“Wanton lust, vicious appetite, depravity of senses, loathsome beast of passion, unbridled unleashing of carnal desire of demonish perversion” Kar HC discusses protection provided to husband by the institution of marriage

A man is a man; an act is an act; rape is a rape, be it performed by a man the “husband” on the woman “wife”

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Kerala High Court

Cruelty

At odd hours, if wife continues making discreet phone calls with another man even after a warning by husband, would it constitute matrimonial cruelty?

The Division Bench of A. Muhamed Mustaque and Dr Justice Kauser Edappagath, JJ., held that, despite a warning by the husband, if the wife continues to make discreet calls with another man that too at odd hours, it would amount to matrimonial cruelty.

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Medical Negligence

Do District and State Consumer Disputes Redressal Commissions do not have jurisdiction to take cognizance of medical negligence complaints?

Nagaresh, J., decided whether medical service would fall within the ambit of Section 2(42) of the Consumer Protection Act, 2019 unless of course the service is free of charge or is under a contract of personal service.

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Breach

Compensation payable under Ss. 73, 74 and 75 are only for loss or damage caused by breach or inclusive of mere act of breach as well?

The Division Bench of P.B. Suresh Kumar and C.S. Sudha, JJ., expressed that,

“…compensation payable under Sections 73, 74 as also under Section 75 is only for loss or damage caused by the breach and not account of the mere act of breach. If in any case the breach has not resulted in or caused any loss or damage to a party, person concerned cannot claim compensation.”

The words ‘loss or damage’ in the Sections 73 and 74 would necessarily indicate that the party who complains of breach must have really suffered some loss or damage apart from being faced with the mere act of breach of contract. That is because every breach of every contract need not necessarily result in actual loss or damage.

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Internal Complaints Committee

In the film industry, would production units have to constitute Internal Complaints Committee to deal with harassment against women?

While expressing that, any organisations, establishments, private institutions are employing workers whether for wages or not in contemplation of the provisions of the Act, 2013 coming under the definition of employer, employee and workplace, they are duty bound to constitute an Internal Complaints Committee,  the Division Bench of S. Manikumar, CJ and Shaji P. Chaly, J., held that, a production unit of each film industry is an establishment employing Actor Artists and other workers and therefore, such production units have to maintain an Internal Complaints Committee if they are engaging more than 10 workers

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Moral Policing

Man taking a lady from another community in his car, attacked by violent mob: Act of mob moral policing?

Calling it to be ‘moral policing’ K. Haripal, J., addressed a matter wherein a man had taken a lady from another community in his car due to which a mob attacked him with deadly weapons.

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Pre-arrest Bail

Trespassed in house, committed rape, misappropriated money, threatened: Kerala HC denied pre-arrest bail in view of such allegations

Shircy V. J., dismissed a bail application wherein a man committed rape with a woman and misappropriated her money after putting her under threat.

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Strikes

Bar on Government servants to engage in strikes?

While expressing that, it is the duty of the welfare Government to protect not only the citizens, but to continue with, all the Government work as expected, the Division Bench of S. Manikumar, CJ and Shaji P. Chaly, J., directed that Government servants should be prevented from engaging in a strike.

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Madras High Court

Central Information Commission

High Court cannot act as a post office to collect and exchange information

While stating that Central Information Commission has only made recommendations, which cannot by any stretch of imagination be taken as a statute so as to give effect, the Division Bench of Munishwar Nath Bhandari, CJ and D. Bharatha Chakravarthy, J., dismissed the petition.

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Promotion

Can an employee claim promotion as a matter of right?

S.M. Subramaniam, J., expressed that employees cannot seek any direction to fill up the post or claim a promotional post.

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Bribe

Every Advocate is a Court officer and part & parcel of justice delivery system: Madras HC found a Govt. Advocate demanding bribes at the cost of justice

The Division Bench of K. Kalyanasundaram and R. Hemalatha, JJ., expressed that, the Government advocate being the representative of the Government has to act in an honest manner. If he/she goes around with the intention to make money at the cost of justice, only chaos will prevail.

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Manipur High Court

Appointment/Promotion of High School Teachers

All resolutions passed at the emergency meeting will be subject to confirmation or revision at the next ordinary meeting; Court allows petition

“Rule 14 (b) of the Rules of 1975 provides that all resolutions passed at the emergency meeting will be subject to confirmation or revision at the next ordinary meeting, none of the respondents, either the State or the respondent 3 to 10 has brought on record that the resolution passed in the emergency meeting held on 21-02-2015 was confirmed or revised in the next ordinary meeting.”

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Madhya Pradesh High Court

Writ of Mandamus

A writ for mandamus cannot lie to direct the State to enact a law; Petition dismissed

The Division Bench of Ravi Malimath, CJ. and Dinesh Kumar Paliwal, J.dismissed a petition which was filed in public interest praying for a writ of mandamus to incorporate certain provisions in the law, namely, Section 14-A of the Madhya Pradesh Municipal Corporation Act, 1956 and Section 32-A of the Madhya Pradesh Municipalities Act, 1961.

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Election Dispute

Registrar exercising power of the election tribunal cannot pass interim directions of any nature; Court allows appeal

“…Registrar who was trying the election dispute was exercising the power of the election tribunal. Therefore, he could not have passed orders even though it was in the interest of society.”

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Custody

Technical objections cannot come in way of custody; Court allows 16-year-old to choose to live with father

The Division Bench of Subodh Abhyankar and Satyendra Kumar Singh, JJ., dismissed an appeal which was filed being aggrieved of the order passed by Single Judge wherein he quashed the earlier impugned order passed by the Sub-Divisional Magistrate whereby custody of the children of the appellant was given to her husband (respondent 4). The Single Judge had only partly granted relief by not giving any express direction restoring the custody of the children in favour of the appellant.

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Appointment Order

Cancellation of candidature on the ground of typographical error arbitrary and grossly disproportionate; Court allows petition

Pranay Verma, J., allowed a petition which was filed praying for a direction to consider petitioner’s candidature for the post of Office Assistant (Multi purpose) and to issue appointment order in her favour in light of offer letter.

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Meghalaya High Court

Family Pension

Court decides on eligibility of family pension under Rule 48 of Meghalaya Civil Services Pension Rules of 1983

“Rule 48, provides that an unmarried/widowed/divorced daughter, would be entitled to family pension and that a person would be entitled for family pension, only after other eligible family members in the first category have ceased to be eligible to receive it.”

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Companies Act

If an advertisement for petition filed under S. 433 of Companies Act, 1956 is not published, will entire matter be transferred to NCLT?

Sanjib Banerjee, CJ, addressed a petition wherein a creditor’s winding-up petition was instituted under Section 433 of the Companies Act, 1956 and the same was not yet advertised.

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Testimony

Court affirms trial court’s conviction on the basis of victim’s testimony in POCSO matter

The Division Bench of  Sanjib Banerjee and W. Diengdoh, JJ., while hearing an appeal which challenged the judgment of conviction of December 21, 2018, which convicted the appellant under Section 3(a) R/W Section 4 of the Protection of Children from Sexual Offences Act, 2012, upheld the same and stated that there was no good reason to interfere with the judgement of the trial court.

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Compromise Deed

Lower Courts to deal with entire process expeditiously after receipt of the application under S. 151 read with Or. 20 R. 6-A CPC

H.S. Thangkhiew, J. while hearing a revision application allowed the same and directed the lower court to deal with the entire process expeditiously immediately on receipt of the application under Section 151 read with Order 20 Rule 6-A CPC.

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Inherent Power

fraus et jus nunquam cohabitant; Ori HC analyses how does prohibition under S. 362 CrPC operate viz-a- viz the inherent power of the High Court

It is the oft-repeated and a salutary principle of law that fraud and justice never dwell together (fraus et jus nunquam cohabitant)

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Rape

If a man rubs his organ on vagina over victim’s underpants, would that amount to rape?

The Division Bench of Sanjib Banerjee, CJ and W. Diengdoh, J., addressed that, if the victim’s underwear was not taken down and the man merely rubbed himself on the victim’s crotch while she still wore her underpants, would that amount to commission of rape.

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POCSO

FIR and proceedings in Special POCSO Case quashed; Minor ‘victim’ gave birth to child while living with accused as his wife

Diengdoh, J. allowed a petition which was filed praying to quash the criminal proceedings pending in the Court of the Special Judge (POCSO) under Section 5(j)(ii)/6 POCSO Act, 2012.

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Punjab and Haryana High Court

Live-in Relationship

In ever-evolving society, evolving law with it, time to shift perspective from didactics of orthodox society, shackled with strong strings of morality to one that values an individual’s life

While dealing with a matter regarding protection to live-in relationship, Anoop Chitkara, J., held that, every person in the territory of India has an inherent and indefeasible fundamental right to life flowing from Article 21 of the Constitution of India and the State is duty-bound to protect life.

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Laws governing ‘Live-in-relationships’ is need of the hour; Court directs State to file response on the social predicament

‘Live-in-relationships’ has always been a debatable issue because of the absence of any law on the said practice. The Legislation has not yet consolidated any Act in this regard; on the other hand the Judiciary, through several decisions has made a clear stand to protect the various rights of such couples. Supreme Court in Lata Singh v. State of U.P., (2006) 5 SCC 475, S. Khushbhoo v. Kanniammal, (2010) 5 SCC 600, and Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755, has upheld the status of live-in-relationships and issued certain direction to protect life and liberty of the individuals.

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MBBS Course

Whether Court can issue directions for filling up the vacant seat for the MBBS Course?

S. Thangkhiew, J. allowed a petition in which he had to consider whether this Court can direct the respondents to consider the petitioner for filling up the vacant seat for the MBBS Course.

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Recission of Contract

Application for rescission of contract ‘mandatory’ to avail the relief, as S. 28, Specific Relief Act, 1963 doesn’t confer indefeasible right

Sudhir Mittal, J. dismissed the revision petition filed by the petitioners (in this case the judgment-debtors) against the action of the Executing Court for refusing to recall the impugned order. According to the petitioners, the execution order was passed, ex parte hence, the fundamental principle of natural justice was violated.

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Carnal Intercourse

Use of phrase “carnal intercourse” considered as a conscious act of the legislature reflecting the clear intent to engraft an offence under S. 377 IPC, conviction upheld

Vinod S. Bhardwaj, J. contemplated the revision petition filed by the accused/ children in conflict with the law, challenging the dismissal of appeal by Additional District and Sessions Judge along with the order of conviction and sentence passed by the Juvenile Justice Board, for the commission of offence punishable under Section 377 of Penal Code, 1860 and Section 10 Protection of Children from Sexual Offences Act, 2012.

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Cooling Off Period

Cooling off period under S. 13-B (2) HMA directory and not mandatory, court must waive off statutory period where marriage is irreconcilable

Rajbir Sehrawat, J., allowed the instant revision petition, filed against the order of Family Court, where the joint application for waving off the statutory period of 6 months for cooling off, had been dismissed.

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CBSE

Schools succeeded in hoodwinking CBSE, however, no fault can be attributed to the students; direction for issuance of class 12th result

Sudhir Mittal, J. allowed the writ petitions filed against the action of the Central Board of Secondary Education (CBSE) declaring petitioners ineligible for evaluation of class 12th and to issue the final result.

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Fundamental Rights vis a vis Judicial Review

Answer to the question on ‘fundamental rights vis-a-vis judicial review’ considered as ‘National Confusion’ as different interpretation possible

Rajbir Sehrawat. J., contemplated and answered the interesting question asked in the recruitment test on which the dispute of the petitioner revolves around. Thorough interpretation of judgments starting from Sankari Prasad to I.R. Coelho was analysed by the Court to formulate the correct answer asked in the recruitment test.

“73. Which of the following schedule of the Constitution is immune from judicial review on the grounds of violation of fundamental rights?

  1. A) Seventh Schedule B) Ninth Schedule C) Tenth Schedule D) None of the above”

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Material Fact

Suppression of a ‘material fact’ of non-disclosure of pendency of bail application considered, subservient to the right of liberty granted to the petitioners; Guidelines issued

Three petitions are clubbed together where the petitioners intended to withdraw their bail applications as bail was already granted by the different trial courts. The main issue before Jasgurpreet Singh Puri, J. was effect of filing bail applications and passing of bail orders by the trial courts during the pendency of bail application before High Court by the same accused without disclosing such pendency and what safeguards should be adopted by the trial courts in this regard.

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Compensation

Entitlement to compensation on general principles for inordinate delay in receiving monies due; Interest on refund of excise duty granted

The Division Bench of Ajay Tewari and Pankaj Jain, JJ., contemplated the appeal where the interest on refund of excise duty was rejected by the authorities. The main question before the Court was whether the assessee was entitled to interest.

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Departmental Punishment

Departmental punishment of government servant is not a necessary and automatic consequence of conviction on a criminal charge

Jaishree Thakur, J. set aside and quashed the dismissal of the petitioner and remanded back the matter to the punishing authority for reconsideration. The Court directed that punishing authority to apply its mind and to form an opinion as to whether the conviction of the petitioner deserves the penalty of dismissal, removal or reduction in rank or any other lesser penalty.

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Patna High Court

Economic Offence

Entire community is aggrieved if economic offenders, who ruin economy of the State are not brought to book

Expressing that the entire community is aggrieved if the economic offenders, who ruin the economy of the State are not brought to book, Anjani Kumar Sharan, J., held that economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community.

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Rajasthan High Court

Whenever there is a conflict between substantial justice and hyper-technicality then substantial justice should be preferred to avoid defeat for the ends of justice: Raj HC observes in a case where candidature was rejected on a hyper-technical approach

A Division Bench of Anoop Kumar Dhand and Pankaj Bharadwaj, JJ., disposed of the petition and directed the Department to appoint the respondent.

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Cause Title

“..use of salutation and titles is prohibited in terms of Arts. 14 18 and 363A of the Constitution of India in public documents and public offices”; Raj HC observes in a case where hereditary title was mentioned in a cause title

“…any title awarded to the citizen of India by a Foreign State cannot be accepted nor used and no such title, other than the military or academic distinctions, can be conferred other than by the State. In terms of Article 363A of the Constitution of India, the heredity titles of nobility being in conflict with the principles of equality and contrary to Article 14 of the Constitution of India cannot be used as prefixes or suffixes.”

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Provisional Attachment

Order of provisional attachment cannot survive beyond a period of one year in terms of S. 83 (2) CGST Act; Provisional attachment order stayed

“Section 83 of the CGST Act pertains to provisional attachment to protect the revenue in certain cases. In sub-section (1) of Section 83 the commissioner is empowered to order provisional attachment of the property of the assessee including bank account where proceedings under Chapters XII, XIV and XV are pending and the commissioner is of the opinion that for the purpose of protecting the interest of government revenue it is necessary so to do.”

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Public Interest Litigation

“Citizen approaching Court in a public interest jurisdiction holds greater duty to make full research” PIL dismissed due to lack of necessary evidence presented

A Division Bench of Akil Kureshi, CJ and Rekha Borana, J. dismissed the petition and kept it open for the petitioners to file a fresh public interest petition.

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Private Entity

In absence of any factual foundation to show whether a particular entity is State or not, writ jurisdiction not maintainable

Mahendar Kumar Goyal J. dismissed the petition being not maintainable against a private entity. 

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Interim Maintenance

Raj HC dealt with whether husband can be absolved from his duty to pay interim maintenance if there is delay of 30+ years in filing application

“…an order under Section 125 of CrPC is in the nature of interim maintenance and husband, who admittedly earns Rs 40, 000/- per month cannot be absolved of his obligation to pay interim maintenance, merely because the respondent – wife has chosen to file the application after 36 years of marriage.”

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Transfer Petition

Transfer petition for trial of Salman Khan’s deer hunting case allowed; High Court to take charge

Pushpendra Singh Bhati, J., allowed a transfer petition in the infamous deer hunting case of actor Salman Khan.

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Bail

Economic offender should not be dealt as general offender because economic offenders run parallel economy; bail rejected

Narendra Singh Dhaddha rejected bail and dismissed the petition being devoid of merits.

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Sikkim High Court

Compromise

Handing out punishment is not the sole form of delivering justice; Court allows compromise

Bhaskar Raj Pradhan, J. allowed the compromise to bury the difference between parties and gives them their lives as good citizens.

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Tripura High Court

Disposal of Garbage

Court directs AMC to set up proper slaughterhouses and ensure garbage disposal in scientific manner

Court issued directions to the Corporation to prepare a long-term plan for not only setting up the abattoir/slaughter house but also for ensuring disposal of garbage in an appropriate scientific manner, rendering all authorities including the local police authorities for enforcing/assisting in carrying out its duties, considering application for licenses and disposing of at an early date so that people are not deprived of essential needs, maintaining hygienic conditions and carrying out inspection of all the license premises.

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Divorce

Unable to approve this kind of matrimonial conduct or filing a suit for divorce on such coloured narrative; Court dismisses appeal in matter of divorce

The Division Bench of S. Talapatra and S.G. Chattopadhyay, JJ. dismissed an appeal which was filed under Section 28 of the Hindu Marriage Act, 1955 from the judgment by the Additional District Judge declining to grant the divorce and consequently dismissing the suit. It was observed that case did not reflect any such situation which can demand the dissolution of marriage between the petitioner [the appellant and the respondent].

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Uttaranchal High Court

Personal Rights

Irrespective of the personal rights of a person or a community, it can under no set of circumstances, override the rights or need of the defence of the country; Petition dismissed

Sharad Kumar Sharma, J. dismissed a writ petition which involved the issue pertaining to regulating the frontier borders of the country, adjoining to the ‘Line of Actual Control’, which adjoins and shares the boundary lines of our neighbouring country, China, which is approximately about 20 to 25 Kms. only away from the land, in dispute, which is proposed to be acquired for the purposes of meeting out the defence need of the ITBPF, i.e. ITBP.

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Judgment of Acquittal

There have to be very substantial and compelling reasons for setting aside a judgment of acquittal; petition dismissed

The Division Bench of S.K. Mishra and A.K. Verma, JJ., dismissed the appeal for acquittal considering it to be devoid of substantial and compelling reasons.

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Hate Speech

Right to freedom, as granted under the Constitution is not an absolute right; Court rejects bail in Hate Speech matter

Ravindra Maithani, J., rejected a bail application which was filed by the applicant who was in judicial custody under Sections 153A, 298 Penal code, 1860.

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Public Service Commission

Public Service Commission directed to declare result of candidate who submitted late fees

The Division Bench of Sanjaya Kumar Mishra, CJ. and Ramesh Chandra Khulbe, J. allowed a petition which was filed by an aspirant seeking a direction to respondents to allow the petitioner to appear for the mains examination of the Assistant Conservator of Forest.

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Registration of Sikh Marriages

State directed to take steps to frame and notify Rules for Registration of Sikh Marriages

The Division Bench of Sanjaya Kumar Mishra, ACJ. and Ramesh Chandra Khulbe, J. took up a PIL filed by the petitioner commanding the respondent State to notify the Rules under Anand Marriage Act, 1909 and also to issue guidelines to register the marriage of people of Sikh Community under the Anand Marriage Act, 1909.

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Bail

Society has a vital interest in grant or refusal of bail because criminal offence is the offence against the society; Bail applications rejected in fraud case under Epidemic Diseases Act

Alok Kumar Verma, J. rejected three bail applications of the applicants who were in custody for the offence under Sections 188, 269, 270, 420, 467, 468, 471, 120B of IPC, Section 3 of the Epidemic Diseases Act, 1897 and Section 53 of the Disaster Management Act, 2005.

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Weekly Roundups from March

Stories of sexual assault of a minor, woman travelling in public transport experiencing inappropriate touch and how children below 12 years of age are ‘asexual’ | Read 7 Legal Stories of the week

9 Legal Stories of the Week | Unlicensed transport aggregators to Spanking back of a woman without her consent, read more such stories in this weekly roundup

From Hijab Ban to Bloomberg Privacy Case and more | 7 Legal Stories of the Week

Madras High Court
Case BriefsHigh Courts

Madras High Court: The Division Bench of K. Kalyanasundaram and R. Hemalatha, JJ., expressed that, the Government advocate being the representative of the Government has to act in an honest manner. If he/she goes around with the intention to make money at the cost of justice, only chaos will prevail.

Petitioner sought for quashing the impugned order in which her services as Special Public Prosecutor was terminated with immediate effect.

According to the petitioner, she was sincere and hardworking and out of 439 cases disposed, she was instrumental in ensuring conviction and severe punishments in 16 cases which was widely appreciated by the Police, Bench and Bar. However, according to her an anonymous complaint against her casting aspersions on her honesty and integrity was taken cognizance by the then-District Collector (2nd respondent).

On the report of the Superintendent of Police (3rd respondent) and the District Collectors’ findings, the State Government (1st respondent) terminated the services of petitioner, which according to the petitioner was unjust and unreasonable.

High Court’s Findings

Bench noted that there were allegations of corruption made against the petitioner which were true and that she had also misused her position by extracting menial work from the police constables on Court duty. Earlier, a ‘road roko’ agitation by the Advocates in order to remove the petitioner from her post also occurred.

It was further found that in a POCSO case, the petitioner had received illegal gratification from the accused and ensured their acquittal on flimsy grounds was referred to by the District Collector.

Amongst a few letters against the petitioner, in one of the letters, there was mention of the corrupt practices of the petitioner and how she had tried to convince the victim and their parents in the POCSO case to compromise with the accused by receiving compensation.

A famous quote is “truth is like the sun. You can shut it out for a time, but it ain’t going away.” 

High Court stated that,

Every Advocate is a Court officer and part and parcel of the justice delivery system. The public reposes great faith in the judiciary but the judges have to rely on their pillars, the advocates.

Bench found from the records that the petitioner had been demanding bribes and acted like an extra-constitutional authority attempting to fix up compromises in serious cases of offence and this caused a serious dent in the justice delivery system.

Lastly, the Court found no violation of natural justice nor any fundamental rights.

Therefore, in view of the above, a petition was dismissed. [Dhanalakshmi v. State, 2022 SCC OnLine Mad 1275, decided on 22-3-2022]

Advocates before the Court:

For Appellant: Mr P. Subba Reddy

For Respondents: Mrs V.Y amuna Devi Special Government Pleader

Case BriefsSupreme Court

Supreme Court: In an interesting case relating to corruption, the Division Bench of Ajay Rastogi and Abhay S. Oka*, JJ., acquitted a Commercial Tax Officer in spite of proved recovery of tainted currency notes from her. The Bench observed that though the recovery was proved in the absence of demand being conclusively proved conviction cannot be made under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act.

The prosecution case, in brief, was that the appellant, Commercial Tax Officer demanded a bribe of Rs.3,000 for issuing an assessment order of the Farmers’ Service Co-operative Society for the year 1996-97, where the complainant was acting as a supervisor. Though the complainant showed unwillingness to pay the amount, the demand was reiterated by the appellant for consecutive three days which was later scaled down to Rs. 2000. Consequently, a complaint was filed in the Anti-Corruption Bureau (ACB) and accordingly, a trap was laid.

The allegation of the prosecution was that when the complainant tendered the tainted currency notes of Rs.2,000 to the appellant, instead of taking the amount directly, she took out a diary from her table drawer and asked to keep the currency notes in the diary thereafter she locked the diary in the table drawer and kept the key in her handbag. After that, she called ACTO along with the record, signed on the last page of the ledger and cash book by putting the date as 26-02-2000.

Notably, when the trap party entered the office of the appellant, they found a wad of currency notes in the diary, numbers on which tallied with the serial numbers of currency notes described in pre-trap proceedings. The Special Court found that the demand of bribe and acceptance of bribe was proved by the prosecution and convicted the appellant under Sections 7 and 13 (1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. The High Court of Telangana had affirmed the said finding.

The appellant had challenged the concurrent findings of the Special Court and High Court contending that the recovery had not been proved and the complainant had deliberately kept the currency notes in the diary lying on her table when she went to the washroom before leaving her office.

Observing that the proof of demand of bribe by a public servant and its acceptance by him is sine quo non for establishing the offence under Section 7 of the PC Act, the Bench opined that as a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction thereunder.

The Bench noted following discrepancies in the evidences submitted by the prosecution:

  1. The society been served with a notice on 15-03-2002 that an exemption had been granted from payment of commercial tax and it was not liable to pay any tax for the year 1996-97 which made the issue of the final assessment order a mere procedural formality and demand of bribe on 23-03-2002 highly doubtful.
  2. The LW8, R.Hari Kishan, was to accompany the complainant at the time of offering the bribe. However, in spite of being instructed only complainant entered the chamber and LW8 waited outside. The prosecution offered no explanation why LW8 did not accompany the complainant inside the chamber of the appellant at the time of the trap.
  3. The complainant’s version was that on his own, he told the appellant that he had brought the amount; further he had himself admitted that his version regarding the demand on various dates was an improvement. There being no other evidence of the alleged demand, the appellant’s version was not reliable.
  4. On 22-03-2000, the appellant had served a memo on PW 4, ACTO pointing out the defaults committed by him in the discharge of his duties, which indicated high probability of him holding grudge against her.

Hence, the Bench concluded that the demand of illegal gratification by the appellant was not conclusively proved by the prosecution. Thus, the demand which is sine quo non for establishing the offence under Section 7 was not established.

Consequently, the appeal was allowed and the conviction of the appellant for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act was set aside and the appellant was acquitted of the charges framed against her.

[K. Shanthamma v. State of Telangana, 2022 SCC OnLine SC 213, decided on 21-02-2022]

*Judgment by: Justice Abhay S. Oka

Appearance by:

For the Appellant: V. Mohana, Senior Advocate

For the Respondent: Bina Madhavan, Advocate

Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsSupreme Court

Supreme Court: While dealing with a case of abetment and conspiracy for commission of criminal misconduct by public servant, the Division Bench of K.M. Joseph and S. Ravindra Bhat*, JJ., held that  Section 13 of Prevention of Corruption Act cannot be invoked against a non-public servant. Clarifying the standard of suspicion to make out a prima facie case for conspiracy, the Bench stated,

“The material to implicate someone as a conspirator acting in concert with a public servant, alleged to have committed misconduct, under the PCA, or amassed assets disproportionate to a public servant’s known sources of income, has to be on firm ground.”

The instant appeal was filed by CBI against the judgment of Madras High Court by which exercising jurisdiction under Section 397 and Section 401 of CrPC, the High Court had quashed the charge sheet against the respondent-Uttamchand Bohra framed under Sections 120B and Section 109 of Penal Code, 1860 and Section 13(2) r/w Section 13(1)(e) of the Prevention of Corruption Act, 1988.

Conspiracy and Abetment

The respondent was accused of abetting and/or conspiring with the principal accused (A-1), a senior official of the Central Government in the income tax department,, so as to permit him to accumulate assets disproportionate to his known sources of income. A-1 was alleged to have acquired the flat, through the company named M/s Raviteja Trading Co. Pvt. Ltd. Two other accused, who facilitated the acquisition, turned approver. The role attributed to the respondent was that he helped in the execution of the sale deed of the property, which was seized from his house. The respondent was also involved in another case wherein the CBI had seized Rs. 50 lakhs from his vehicle when he was transporting the bribe amount received by A-1 to a safe place.

Analysis and Findings

Noticing that Section 13 of PC Act deals with Criminal misconduct by a public servant, the Bench opined that since the respondent was not a public officer or public servant, he could not be charged with committing an offence under Section 13(1)(e) read with Section 13(2) of the PCA. Further, there was no allegation against the respondent that he received any monetary or other benefit, or that he held the property in his name for the benefit of A-1. The Bench observed,

“There is no evidence against the respondent linking him to the transaction relating to the execution of the sale deed, or alleging that he had an agreement with A-1 and others to commit an illegal act.”

Further, there was no allegation of a legal act being done in an illegal manner, therefore the alleged offence under Section 120-B IPC was also not made out from the charge-sheet. With regard to the allegation of offence u/s 109 of IPC, the Bench noticed that the prosecution had not suggested that the respondent abetted A-1 to acquire disproportionate assets in any manner.

Holding that CBI could not deny that the respondent’s name was included in the instant case, although the sale deed was seized during a search conducted in earlier case, and that the FIR in the instant case named only A-1 and A-2 as the accused, the Bench stated that when the sale deed had already been seized from respondent’s house before initiating of instant case the allegations against the respondent in earlier case could not be against him in the instant case, since the two cases were separate and the earlier case was irrelevant to the instant case. Noticeably,

“He did not directly or indirectly finance the transaction by which property was sold to M/s Raviteja Trading Co. Pvt. Ltd, which, according to the prosecution, was in fact by A-1. The respondent also is not alleged to have facilitated the flow of money to fund acquisition of the flat.”

In the light of the above, the Bench opined that the fact that sale deed was in the respondent’s possession could not satisfy the ingredient of any of the offences alleged against him. Furthermore, crucially, the money trail for the property bought under the sale deed did not show his involvement. Accordingly, the Bench held that there was no material to prima facie support an inference that the respondent was either a conspirator or had abetted the commission of the offences alleged against the accused A-1. Hence, the appeal was dismissed.

[CBI v. Uttamchand Bohra, 2021 SCC OnLine SC 1208, decided on 09-12-2021]

Kamini Sharma, Editorial Assistant has put this report together 

Appearance by:

For CBI: Vikramjit Banerjee, Additional Solicitor General

For the Respondent: R. Basant, Senior Counsel

*Judgment by: Justice S. Ravindra Bhat

Case BriefsHigh Courts

Bombay High Court: Sandeep K. Shinde, J., refused to discharge an Income Tax Officer from charges under the Prevention of Corruption Act. The applicant Income Tax Officer was accused of demanding a bribe.

Applicant while working as an income tax officer demanded a bribe of Rs 10 lakhs from the complainant to ignore all the disputed cash deposits and discrepancy noticed with regard to the sale consideration of a property in relation to the assessment proceedings of the complainant’s daughter. In the said assessment proceedings, the complainant’s daughter was represented by accused 2.

Accused 2 informed the complainant and his wife that applicant demanded Rs 10 lakhs to ignore the discrepancies and disputed cash deposits, and if not paid, he would impose additional tax and penalty, which could be around Rs 1 Crore and 81 lakhs.

Complainant stated that he explained the queries raised by the applicant/income tax officer. However, applicant emphasized that transactions reflected in the bank account would be taxable.

According to the complainant, during the meeting, applicant demanded Rs 10 lakhs to ignore all the queries, after which demand was scaled down to Rs 5 lakhs for ignoring the queries except the cash transactions.

The complainant recorded the conversation transcript of the recorded conversation, divulged tacit approval of the applicant to favour the complainant by ignoring certain queries. Transcript further divulged that applicant consented to accept the bribe money, which he demanded on 29-12-2016 through Chartered Accountant.  Every right from verification of the complaint till recording the conversation was noted in the panchanama.

Transcript of the recorded conversation revealed implicit approval of the applicant to show favour in assessment proceedings of complainant’s daughter against the reward of Rs 50,000 which was to be paid to accused on behalf of the applicant.

Prosecutor submitted that transcript of recorded conversation between the complainant and the C.A. clearly revealed demand of bribe money and its acceptance through the CA. Further, it was argued that the impugned order does not suffer any infirmity or material irregularity and/or illegality and thus this Court in its revisional jurisdiction may not appreciate the material on record and interfere in impugned order.

Law relating to the power of the Sessions Court to discharge the accused has been well settled in the decision of State of Maharashtra v. Priya Sharan Maharaj, (1997) 4 SCC 393; Niranjan Singh Punjabi v. Jitendra Bijaya, (1990) 4 SCC 76.

Law is:

‘at the stage of framing of the charge, the Court has to consider the material with a view to find out if there is ground for  presuming that the accused has committed offence or that there is not sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction.’

Analysis, Law and Decision

In the present matter, Court noted that the applicant was an income-tax officer and complainant’s daughter’s tax assessment proceedings were before him.

Crux of the complaint was the bribe money, demanded by the applicant to ignore cash credits.

In Court’s opinion, the primary evaluation of the transcript of the conversation, it was revealed that the demand of the money and tacit approval to its acceptance was demanded in presence of C.A.

The material of record also showed tainted currency notes which were recovered from the C.A. on the same day. Thus, transcript of the conversation confirmed the material allegations made in the complaint.

Hence, the material before the Court disclosed grave suspicion suggesting complicity of the applicant.

Court found no material on record to come to the conclusion that there is no sufficient ground to proceed against the applicant.

Application was dismissed in view of the above. [Naveen Kumar Aggarwal v. State of Maharashtra, 2021 SCC OnLine Bom 3442, decided on 14-10-2021]

Advocates before the Court:

Rajendra Shirodkar, Senior Advocate with Mihir Ghag i/by Archit Sakhalkar for the applicant.

Sharmila Kaushik, APP for the respondent1-State

Ameeta Kuttikrishnan, for respondent 2.

Case BriefsHigh Courts

Bombay High Court: K.R. Shriram, J., while explaining the concept of bribe under the Prevention of Corruption Act, 1988, upheld the decision of Sessions Court.

Present appeal was filed with respect to impugning an order and judgment passed by Special Judge under P.C. Act Pune acquitting respondent (referred as accused) of offence punishable under Section 7 (Public servant taking gratification other than legal remuneration in respect of an official act) and Sections 13(1) (d) read with Section 13(2) (Criminal misconduct by a public servant) of the Prevention of Corruption Act, 1988.

Prosecution’s Case

Sambhaji Namdeo Sakhare (PW 1) complainant and his family members were served with a notice from the office of Sub-Divisional Officer, Maval Sub-Division informing them about compensation to be paid to them against the acquisition of their property.

Rs 30,000 was towards compensation of the building in the acquired. When PW-1 went to the office of the Sub-Divisional Officer to collect the compensation amount, the accused demanded Rs 1,000 for preparing and giving the cheque of Rs 30,000 out of the total amount of compensation.

As PW-1 was not having Rs 1,000 at the said time, hence it was alleged that the accused asked him to bring the said amount on the next date and collect the said cheque of Rs 30,000.

PW-1 approached A.C.B and lodged a complaint. After formalities for pre trap panchanama were completed, the raiding party went to the office of accused.

Later, PW-1 and PW-2 went and met accused who told them to come again on a date informed to them. On 12-08-2003, the accused took the signature of the complainant on receipt of which revenue stamp was affixed and accused informed PW 1 that officer concerned was not available and therefore he should come back again on 14-08-2003.

On 14th August, 2003 raiding party went to the office of the accused, then again the complainant was told to come again at 4.00 P.M. At, 4.00 P.M. complainant and panch entered the office of the accused, cheque was given by accused to complainant and when complainant and panch started going out, accused went towards water cooler which was kept in the office. While drinking water, accused gestured by his hand to the complainant demanding money and then complainant handed over marked currency to accused who accepted those notes by his left hand and kept it in the left side pocket of his pant. Then complainant went out and gave the agreed signal to the raiding party.

Accused was immediately caught and the marked currency along with certain other amounts were found. The said currency was checked under an ultraviolet lamp. Thereafter, post trap panchanama was prepared, investigation commenced, and investigation papers were prepared.

Trial Court had concluded that accused required to be acquitted.

Bench noted a lot of inconsistencies in the evidence of the complainant.

High Court expressed that the law on the issue is well settled that demand of illegal gratification is sine quo non for constituting an offence under the Prevention of Corruption Act, 1988.

Bench elaborated on the concept of bribe and expressed that,

Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe.

Illegal Gratification

Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification.

Therefore, the burden lies upon the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of 1988 Act.

It is further stated that, while invoking the provisions of Section 20 of the Act, the Court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt.

In Court’s opinion, recovery of tainted currency is not sufficient to hold a person guilty. Demand has to be unequivocally proved.

Bench found that the evidence of complainant was fraught with a lot of inconsistencies and contradictions with the evidence of the prosecution witness.

Single Judge of this Court in Khushalchand Yashwant Gaikwad v. State of Maharashtra, 2018 SCC Online Bom 1073, held that it is well-settled law that mere possession and recovery of currency notes without proof of demand will not bring home the offence under Section 7 since the demand of illegal gratification is sine qua non to constitute the offence.

In view of the above discussion, High Court stated that there is an acquittal and therefore, there is double presumption in favour of the accused.

Adding to the above, Court held that firstly, the presumption of innocence available to the accused under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless they are proved guilty by a competent court of law.

Secondly, accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

Therefore, Sessions Court rightly observed that the prosecution failed to prove its case.

Appeal was dismissed in the above view.[State of Maharashtra v. Srirang Dagaduji Bale, 2021 SCC OnLine Bom 1123, decided on 30-06-2021]

Advocates before the Court:

Ms. M.M. Deshmukh, Addl. P.P. for State.

Mr. Satyavrat Joshi for Respondent.

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Bibek Chaudhari and Soumen Sen, JJ., addressed a matter wherein a reporter published a story on witnessing the police personnel bribing a truck driver and further driving negligent get hold of the truck resulting in the death of a person.

Petitioner a reporter of ETV Bharat made a news report stating, inter alia that some police personnel was collecting bribe from a truck loaded with sand and while chasing the truck, the vehicle owned by the police department was being driven in a rash and negligent manner.

The result of the rash and negligent driving caused the death of a person.

Above was the prima facie reason for lodging a complaint against the petitioner.

Bench on perusal of the materials on record stated that, it is a fundamental right of a press reporter to publish any news, which may not be palatable to the administration.

In order to stifle and muzzle the voice of the reporter this case has been registered against the petitioner.

Court also noted the fact that the police have taken cognizance of the report which prima facie discloses the offences committed by its own personnel.

Hence, in view of the above, Police Superintendent of the District concerned has been directed to initiate enquiry regarding registration of the FIR against the ETV reporter and to investigate about the collection of money by the police personnel, the incident of which has been published by the reporter and to take appropriate action against the offenders.

Therefore, the petitioner shall be released on bail. [Avishek Dutta Roy, In Re., 2020 SCC OnLine Cal 1319, decided on 30-07-2020]

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: Alok Kumar Verma, J., allowed a bail application filed for grant of regular bail in connection with the offences punishable under Sections 302 and 120B of the Penal Code, 1860.

FIR was lodged by the father of the deceased with the allegations that his daughter was married with co-accused Shadab. Her husband demanded dowry and used to beat her.

On 16-11-2018, when his daughter was at his house her husband had come, cooked food and brought sweet meat from market and afterward added the poison in the meal of his wife the next day she was found dead. The counsel for the applicant, M.C. Bhatt and Sachin, submitted that the applicant was an innocent person and she was the sister of the accused; was just above 18 years of age she had been in custody since 07-01-2019 and six witnesses had been examined and her name was not mentioned in prosecution’s witness list and co-accused in the FIR had been granted bail by this High Court.

The Court while allowing the bail relied on the judgment of Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 where it was held that the personal liberty is very precious fundamental right and it should be curtailed only when it becomes imperative according to the facts and circumstances of the case. [Amreen v. State of Uttarakhand, 2020 SCC OnLine Utt 129, decided on 04-03-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

Appellate Tribunal, Prevention of Money Laundering Act (New Delhi): A Coram of Manmohan Singh (Chairman), J. and G.C. Mishra (Member) allowed an appeal under Section 26 of the Prevention of Money Laundering Act, 2002 against an order passed by the Adjudicating Authority for attaching property.

In the instant case the CBI registered a criminal case under Section 120-B of Penal Code, 1860 read with Sections 7, 12, 13(2) and 13(1)(d) of Prevention of Corruption Act, 1988 against one Joint Director of Enforcement Directorate (ED) wherein it was alleged that he assisted the appellant (herein), indulging in corrupt practices in an investigation. It was also alleged that they had taken a huge amount of bribes as quid-pro-quo for acts of omission and commission during the said investigation. As a result, the appellant was arrested by CBI and a charge sheet was filed against him. On the basis of the registration of the case by CBI, a Prevention of Money Laundering Act, 2002 (PMLA) case was also recorded at New Delhi. The ED provisionally attached the immovable property of the appellant which was confirmed by the Adjudicating Authority.

The respondent’s counsel, Shilpi Satyapriya Satyam, contended that the aforesaid property was attached as a “value thereof” in accordance with provision made under Section 2(1)(u) read with Section 2(1)(v) of the PMLA. The counsel for the appellant, R.K. Handoo, drew the attention of the Tribunal to the provision in Section 8(3)(a) of PMLA, 2002 as amended by Act 13 of 2018 which reads as, “a) continue during [investigation for a period not exceeding ninety days or] the pendency of the proceedings relating to any [offence under this Act before a court or under the corresponding law of any other country, before the competent court of criminal jurisdiction outside India, as the case may be. On the basis of this the counsel contended that the confirmation order of attachment passed by the Adjudicating Authority did not survive. Also, no prosecution complaint was filed against the appeal, and hence the appeal be allowed.

The Tribunal found, “It is strange to note here that an immovable property of a person has been made part of a prosecution complaint for confiscation without making that person as a party and affording that person an opportunity to defend his case.” It was further noted, “Section 8(3)(a) of PMLA has been amended by the Act 13 of 2018, wherein a limitation period has been provided for continuation of attachment or retention of property or record post confirmation of attachment/retention and it is the intention of the legislature not to allow the Investigating Authority to get the property attached or retained the record/documents/items indefinitely in the name of investigation.”

Thus, the appeal was allowed. The Tribunal directed the appellant to move to the concerned Special Court for an appropriate remedy, wherein the Prosecution Complaint was pending and his property was made part and parcel of that complaint.[Sanjay Kumar v. Deputy Director Directorate of Enforcement, New Delhi, 2019 SCC OnLine ATPMLA 9, decided on 12-04-2019]

Case BriefsHigh Courts

Bombay High Court: B.P. Dharmadhikari, J. allowed a criminal appeal and acquitted the appellant who was convicted and sentenced by the trial court for commission of an offence punishable under Section 12 (punishment for abetment of offences) of the Prevention of Corruption Act, 1988.

The appellant was charged with aiding the main accused, an Assistant Sub-Inspector, in accepting a bribe from the complainant and thereby committing an offence under Section 12. The main accused died during the pendency of the trial and therefore the case against him abated. The appellant, however, was convicted by the trial court.

A.H. Jamal, Advocate, representing the appellant contended that any offence under Section 7 or Section 13 itself having not been established, there was no question of offence of abetment under Section 12. Per contra, N.R. Patil, Assistant Government Pleader, appearing for the State supported the trial court’s Judgment.

Relying on the decision of the Supreme Court in Sadashiv Mahadeo Yavaluje v. State of Maharashtra, (1990) 1 SCC 299 and CBI v. V.C. Shukla, (1988) 3 SCC 410, the High Court noted: “It was never the case of the prosecution that the appellant instigated complainant to pay bribe or then engaged himself and conspired to facilitate receipt of bribe. In fact, there is no charge of conspiracy at all. The only remaining part, therefore, is of aiding and, the provisions of Clause (iii) of Section 107 IPC (which defines abetment) show that aiding has to be with intention.” In Court’s view, the facts necessary to demonstrate that the appellant was dwelling under such intention were not brought on record. Prosecution only established the payment of Rs 1500 by the complainant to the appellant. However, its nature as a bribe could not be established. Therefore, it was held that the appellant’s conviction under Section 12 was unsustainable. the appeal was allowed and the appellant was acquitted. [Abdul Mannan Mohd. Yusuf v. State of Maharashtra, 2019 SCC OnLine Bom 824, decided on 16-05-2019]

Case BriefsSupreme Court

Supreme Court: A bench comprising of A.M. Sapre and Indu Malhotra, JJ. allowed an appeal filed against the judgment of Delhi High Court wherein it upheld the order of the trial court convicting the appellant under Sections 7,13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988.

The appellant was an employee of the Delhi Electricity Supply Undertaking, working on the post of Inspector at the time relevant. An FIR was filed against him and one Rajinder Kumar, another employee of DESU, wherein it was alleged that the appellant had demanded Rs 4000 for installation of electricity connection in complainant’s factory. On the basis of FIR, the CBI formed a raiding party and the whole procedure was followed. On the scene, the appellant asked the complainant to hand over the money to Rajinder Kumar. As soon as Rajinder Kumar accepted the money, the raiding party came in and the accused were caught. The trial court convicted the appellant as aforestated. However, Rajinder Kumar was acquitted from all the charges. It is pertinent to note that both the accused were acquitted of the charge under Section 120-B IPC (criminal conspiracy). The appellant filed an appeal to the High Court which was dismissed.

The Supreme Court, sitting in appeal, perused the record and noted that the case of the prosecution was that the appellant conspired with Rajinder Kumar to accept illegal gratification from the complainant. The Court was of the opinion that once Rajinder Kumar and the appellant stood acquitted of the charge of conspiracy and further, Rajinder Kumar was acquitted of the charges under PC Act, the charged against the appellant must also fall on the ground. Furthermore, in order to prove its case against the appellant, it was necessary for the prosecution to prove twin requirements of demand and acceptance of the bribe amount by the appellant. It was the case of the prosecution that the money was accepted by Rajinder Kumar and since the accused were acquitted of the charge of conspiracy, it could not be said that Rajinder Kumar accepted the money as illegal gratification for it on behalf of the appellant. In such circumstances, there was no evidence to prove that the appellant accepted the money from the complainant. Resultantly, the Court held that the judgment impugned requires interference which was accordingly set aside. The appeal was. allowed and the appellant was acquitted of all the charges. [Dashrath Singh Chauhan v. CBI, 2018 SCC OnLine SC 1841, decided on 09-10-2018]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of Ranjan Gogoi and R. Banumathi, JJ. reversed the decision of the Gujarat High Court which had acquitted the accused of the charges under Prevention of Corruption Act, 1988.

The accused were working in the Non-Agriculture Department. The complainant was a businessman who wanted to start a new firm. Permission for non-agricultural use of the land was sought from the Department. The accused were alleged to have demanded bribe for expediting the process. Rs 500 were paid to the Accused 1 through Accused 2, who was caught red-handed in the trap laid by the ACB. They were tried for the offences punishable under Sections 7 and 13(1)(d) of the Act. The trial court convicted the accused and sentenced them accordingly. However, on appeal, the High Court acquitted the accused holding that the case was not proved against the accused. Aggrieved by this decision, the State preferred the instant appeal.

At the outset, the Supreme Court observed that to prove the offence of bribe, the demand and acceptance of illegal gratification was sine qua non. On the facts of the case, the Court found that statements of PWs 1 and 2 along with the recovery of bribe amount after following proper procedure by the ACB, proved the case against the accused. Further, it was observed that the presumption against the accused under Section 20 is a rebuttable one and the degree of proof is the preponderance of probabilities. However, in the present case, the accused were not able to give any explanation to rebut that presumption. In such circumstances, the Supreme Court was of the opinion that the High Court ought not to interfere with the decision of the trial court that suffered from no infirmity. Hence, the impugned judgment of the Gujarat High Court was set aside and that of the trial court was reaffirmed. However, considering that the matter was almost 27 years old, the sentence of the accused was reduced from 2 years to 1 year. [State of Gujarat v. Navinbhai Chandrakant Joshi,2018 SCC OnLine SC 699, dated 17-07-2018]

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: A Single Judge Bench comprising of Amol Rattan Singh, J. quashed an FIR relating to ‘electoral offence’ in a criminal case which was pending since 20 years.

Petitioners were before the Court praying for quashing the FIR registered under Section 171-A IPC and the proceedings arising therefrom. In the year 1998, an FIR was registered against the petitioners under Section 171-A on the allegation of giving bribe to voters during Panchayat elections. It was brought to the notice of the Court that the complainant had died during the pendency of proceedings. Complainant’s son appeared on his behalf, and stated that he had entered into a compromise with the petitioners, wholly voluntarily and without any coercion or undue influence, for the betterment of both the parties.

The Court noted the above said facts and circumstances and observed that the alleged offence was committed in the year 1998; the complaint had remained pending without even proceeding from the investigation stage, for past 20 years. Even the report under Section 173 CrPC was not submitted to the competent court. The deceased complainant himself did not pursue the complaint in earnest during his lifetime; the matter was now finally settled by his son. In such circumstances, the Court did not find any reason to disallow the petition. Accordingly, the petition was allowed and the FIR was quashed along with all proceedings emanating therefrom. [Jagroop Singh v. State of Punjab,2018 SCC OnLine P&H 876, dated 01-05-2018]