Case BriefsHigh Courts

Chhattisgarh High Court: Narendra Kumar Vyas J. allowed the petition and quashed the FIR and the criminal proceedings against the petitioner.

The factual matrix of the case is such that the Government of Chhattisgarh enacted the Shakambhari (Nal-Jal) Scheme for benefit of agriculturists by granting subsidy. The major authorities along with respondent 5/complainant Kuleshwar Chandrakar and Roshan Chandrakar, Proprietor of Shri Ram Bore-wells have committed gross embezzlement at the time of granting subsidy to the concerned agriculturists, therefore, the petitioner made a complaint before the Collector, Dhamtari for registration of FIR against the corrupt employee/officers. But the respondent did not take any action against the corrupt persons including the respondent 5. Being aggrieved, the petitioner filed complaint under Section 156(3) Criminal procedure Code i.e. Cr.P.C before District and Sessions Court, Dhamtari for registration of offence under Prevention of Corruption Act. On 9-10-2015, the complainant Kuleshwar Chandrakar lodged FIR against the petitioner contending that the petitioner has demanded Rs 25, 00,000/- by way of extortion. Police has registered the FIR without conducting any preliminary enquiry. The petitioner, who is an Advocate by profession, filed the present writ petition (cr.) challenging the registration of First Information Report against him under Sections 384 and 388 of Penal Code, 1860 IPC on the basis of complaint filed by respondent 5 Kuleshwar Chandrakar.

The Court observed that on perusal of sections mentioned in the FIR it is amply clear that what is necessary for constituting an offence of ‘extortion’ is that the prosecution must prove that on account of being put in fear of injury; the victim was voluntarily delivered any particular property to the man putting him into fear. If there was no delivery of property, then the most important ingredient for constituting the offence of ‘extortion’ would not be available. Further, if a person voluntarily delivers any property without there being any fear of injury, an offence of ‘extortion’ cannot be said to have been committed.

The Court relied on judgment Sudha Tripathi v. State of Madhya Pradesh in MCRC No 1187 of 2019 decided on 2-5- 2019 and observed that it is apparent that the alleged offence under Section 384 of IPC has been quashed on the ground that no valuable assets have been delivered because of extortion, threaten, pressure created by the accused. In the present case also respondent 5 has not delivered any valuable assets to the petitioner, therefore, the judgment referred to by respondent No.5 also support the contention of the petitioner and in that case also Madhya Pradesh High Court held that offence under Section 384 of IPC is not made out.

The Court observed that when prima facie provisions of Section 383 of IPC is not made out, then the offence under Section 388 of IPC cannot be made out, because unless and until the ingredient of extortion is established, then only the alleged offence, prima facie, is said to have been committed by the petitioner. Since the ingredients of Sections 383 of IPC are not made out, the ingredient of Section 388 of IPC cannot be, prima facie, established; therefore, registration of FIR, prima facie, is nothing, but an abuse of process of law.

The Court thus held “from perusal of FIR, prima facie, no case is made out against the petitioner and criminal proceedings is manifestly attended against the petitioner with malafide, therefore, initiation of criminal proceeding is nothing, but an abuse of process of law.”

[Shatrughan Singh Sahu v. State of Chhattisgarh, WPCR No. 133 of 2017, decided on 27-074-2021]


Arunima Bose, Editorial Assistant has reported this brief.


 Appearances

For Petitioner: Mr. Roop Naik and Mr. Sanjeev Sahu,

For Respondents 1 to 4: Mr. Gurudev I Sharan

For Respondent 5: Mr. Manoj Paranjpe

Appointments & TransfersNews

Elevation of 1 Advocate and 1 Judicial Officer as Judges in Chhattisgarh HC


Supreme Court Collegium has approved the proposal for the elevation of the following persons as Judges in the Chhattisgarh High Court:

ADVOCATE:

1. Shri Sachin Singh Rajput, and

JUDICIAL OFFICER:

2. Shri Deepak Kumar Tiwari.


Collegium Resolution

[Statement dt. 1-09-2021]

Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K Agrawal, J., allowed the writ petition and remitted the matter to the appellate authority to consider the case of the petitioner for grant of full pay and allowances in light of sub-rule (2) of Rule 54 of the Fundamental Rules.

The petitioner herein being Jail Guard was terminated from service by the competent authority, after which he preferred an appeal before the appellate authority on 26-6-2000. which was thereby allowed and the petitioner was reinstated in service, but full pay and allowances from the date of termination till the date of reinstatement was not granted on the principle of ‘No Work No Pay’. This part of order related to not granting full pay and allowances from the date of termination till the date of reinstatement is under challenge in the instant petition.

Counsel for the petitioner that full pay and allowances from the date of termination till the date of reinstatement ought to have been granted to the petitioner in the light of Rule 54 (2) of the Fundamental Rules, whereas it has not been granted on the principle of ‘No Work No Pay’, as such, the principle of ‘No Work No Pay’ would not be applicable.

Counsel for the respondent submitted that the appellate authority has considered the facts and circumstances of the case and rightly held that the petitioner is not entitled to full pay and allowances on the principle of ‘No Work No Pay’.

The Court observed that the Fundamental Rules specially sub-rule (2) of Rule 54 clearly entitles the Government servant for full pay and allowances in case of full exoneration. The court further observed that the principle of ‘No Work No Pay’ is based upon a fundamental concept in a Law of Contact of Employment namely wages and salary are paid by the employer in consideration of work/service rendered by the employee. ‘No Work No Pay’ principle has been laid down keeping in view public interest that a Government servant who does not discharge his duty is not allowed pay and arrears at the cost of public exchequer.

The Court relied on judgment Commissioner, Karnataka Housing Board v. C. Muddaiah, (2007) 7 SCC 689 wherein it was observed that “principle of ‘No Work No Pay’ is not absolute in a given case, if it is that the person was willing to work but he was illegally and unlawfully not allowed to do so, the Court may in the circumstances, direct the authority to grant him all benefits considering “as if he had worked”. 

The Court held “the part of impugned order dated 31.8.2010 holding the petitioner to be not entitled for full pay and allowances from the date of termination till the date of reinstatement is hereby set aside.”

[Rajendra Sharma v. State of Chhattisgarh, Writ Petition (S) No.788 of 2012, decided on 23-08-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances

For Petitioner: Mr H.B. Agrawal and Ms Swati Agrawal

For Respondents/State: Mr Sunil Otwani.

Case BriefsHigh Courts

Chhattisgarh High Court: P. Sam Koshy, J. held that protection granted to the petitioner will not preclude the State Government from going in for filling up of the post by way of a regular appointment or by way of engaging contractual teachers under the rules for contractual employment. 

The instant petition was filed on the ground that the petitioner was working as a Guest Lecturer under Respondent 3 for the academic session 2020-21; therefore the Respondents should not be permitted to replace him with another contractual Guest Lecturer.

Counsel for petitioner Mr Aman Upadhyay submitted that the petitioner has undergone a due process of selection for being appointed as a Guest Lecturer and that his services also were satisfactory as there is no complaint whatsoever so far as his competency is concerned.

Counsel for respondent Mr Suyash Dhar submitted that it is a case where no cause of action has till date arisen, inasmuch as the Petitioner has filed the present Writ Petition only on apprehension and since there is no cause of action, the matter is premature and deserves to be dismissed.

The Court observed that the order of appointment specifically had a clause mentioning that the appointments so made are till an alternative arrangement is made by way of regular recruitment/contractual/transfer.

The Court relied on judgment “Manju Gupta v. State of Chhattisgarh”, WPS No. 4406/2016, decided on 27-02-2017 and observed as under

“8. True it is that the Petitioners’ status is that of a Guest Lecturer but that does not mean that they do not have any right. There is always a legitimate expectation of the Petitioners that since the filling up of the posts has not been initiated by way of a regular appointment or by contractual appointments; the Petitioners would be permitted to continue.

  1. The undisputed fact is that the Petitioners were given appointment only on undertaking given by them pursuant to an advertisement by the Respondents. In the undertaking which was made to be furnished by the Petitioners, they were made to undertake that their appointment would be till the posts are filled up by regular/contractual appointment. This by itself clearly gives an indication that unless the Respondents fill up the sanctioned vacant posts by either regular recruitment or by way of contractual appointment, the Petitioners would continue as Guest Lecturers.”

 The court thus held that the court is inclined to accept the same analogy in the present case also and accordingly it is ordered that “unless there is any complaint received against the performance of Petitioner, the Respondents are restrained from going in for any fresh recruitment of a Guest Lecturer under Respondent No.3 College for the subject against which the Petitioner was engaged.”

[Pratik Jain v. State of Chhattisgarh,  2021 SCC OnLine Chh 2418, decided on 12-08-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K Agrawal, J., dismissed the petition and sets aside the impugned order.

The petitioner in the instant petition challenges the legality and validity of the order dated 26.10.2009 passed by respondent 3 who have directed the petitioner to make a payment of Rs. 10,000/on account of professional negligence alleged to be committed by him.

Counsel for the petitioner Mr J.A.Lohani submitted that the impugned order is unsustainable and bad in law as the Human Rights Commission has no right and authority to make an order directing payment of compensation and it could have only made a recommendation to the competent authority.

The Court relied on N.C. Dhoundial v. Union of India, (2004) 2 SCC 579 wherein it was held

The Commission which is an “unique expert body” is, no doubt, entrusted with a very important function of protecting the human rights, but, it is needless to point out that the Commission has no unlimited jurisdiction nor does it exercise plenary powers in derogation of the statutory limitations. The Commission, which is the creature of statute, is bound by its provisions. Its duties and functions are defined and circumscribed by the Act. Of course, as any other statutory functionary, it undoubtedly has incidental or ancillary powers to effectively exercise its jurisdiction in respect of the powers confided to it but the Commission should necessarily act within the parameters prescribed by the Act creating it and the confines of jurisdiction vested in it by the Act. The Commission is one of the fora which can redress the grievances arising out of the violations of human rights. Even if it is not in a position to take up the enquiry and to afford redressal on account of certain statutory fetters or handicaps, the aggrieved persons are not without other remedies. The assumption underlying the observation in the concluding passage extracted above proceeds on an incorrect premise that the person wronged by violation of human rights would be left without remedy if the Commission does not take up the matter.”

The Court relied on judgment Chhattisgarh State Electricity Board, Raipur v. Chhattisgarh Human Rights Commission, 2017 SCC OnLine Chh 1415 and observed that it is quite vivid that the Human Rights Commission is a recommendatory body and it only makes a recommendation to the concerned authority or Government for enforcement of its recommendation. It has no jurisdiction to pass an order directing payment of compensation. Therefore, the impugned order is vulnerable to the extent of directing payment of compensation.

The Court held “the impugned order dated 26.10.2009 passed by respondent No.3/Chhattisgarh Human Rights Commission to the extent of directing payment of compensation to the extent of ₹10,000/to respondent No.5 is hereby setaside and said order will be only treated as recommendation of the Chhattisgarh Human Rights Commission.”[Dr. Giridhar Lal Chandrakar v. State of Chhattisgarh, WPS No.2970 of 2010, decided on 28-07-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For Petitioner: Mr. J. A. Lohani

For Res.No.1, 2 and 4: Mr. Ravi Bhagat

Case BriefsHigh Courts

Chhattisgarh High Court: Narendra Kumar Vyas J. allowed the petition and set aside the impugned order.

The facts of the case are such that the petitioner was found in possession of 145 strips of Spasmo Proxyvon Plus total of 1160 capsules and 90 strips total 720 capsules of Spasmo Proxyvon Plus which are prohibited psychotropic drugs. The seized quantity of the psychotropic drugs was higher than minimum quantity but less than commercial quantity.

The petitioners were charged with offence punishable under Section 22(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (i.e. NDPS Act). The petitioners were thereby arrested and a bail application was filed under Sections 167(2) Criminal Procedure Code i.e. Cr.PC seeking bail on the ground of non-filing of charge-sheet within 60 days from the date of police custody of accused. The Trial Court rejected the bail application. Assailing which present application was filed.

Issues

(i) Whether grant of bail as provided under Section 167(2) of the CrPC indefeasible right of the accused and prosecution can defeat the same by filing final report after expiry of maximum period prescribed under the provisions. ?

(ii) Whether the holidays will be accountable in computing the period of 60 days for granting benefit of bail and from which date the maximum period for filing of charge sheet is countable?

Issue 1

The Court relied on judgment M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence, (2021) 2 SCC 485 and observed that from perusal of Section 167(2) CrPC it is quite clear that if challan on the specified period is not submitted, accused is entitled to be enlarged on bail. As per the provisions of Section 167(2) of CrPC, default bail is the right of accused. The object of the provisions of Section 167(2) of CrPC is that State authority should not take any malafide belated action against accused persons.

Issue 2:

The Court relied on judgment Central Bureau of Investigation v. Nazir Ahmed Sheikh, (1996) 2 SCC 367 and observed that with regard to counting of holidays for counting 60 days when 10-04-2021 and 11-04-2021 were Government Holidays, it is submitted that holidays will be counted for calculating 60 days as provisions of Section 10 of General Clauses Act are not attracted. The Court in the instant case held that period for filing of charge sheet would begin to run and be counted from the next date of arrest of the accused. However, the date of accused being sent on remand would be excluded but the date on which charge-sheet was filed is to be included.

The court observed that it is crystal clear that charge-sheet was not filed within the maximum period of 60 days. As per the law laid down by the Supreme Court right of the accused to get default bail is accrued and it is indefeasible right of the accused which cannot be defeated by the prosecution after completion period as per provisions of Section 167(2) CrPC.

The Court held “the trial Court is not justified in dismissing the aforesaid application by saying that 10.04.2021 and 11.04.2021 were holidays, therefore, charge-sheet on 12.04.2021 is filed within 60 days and by subsequent filing of charge-sheet the right of the accused was forfeited.”

[Vinay Dubey v. State of Chhattisgarh, 2021 SCC OnLine Chh 1974, decided on 09-07-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For Petitioners: Mr. Shailendra Dubey

For State: Mr. Rakesh Sahu

Hot Off The PressNews

Chhattisgarh High Court relied on Supreme Court judgment In re: Expeditious Trial of Cases under Section 138 of Negotiable Instrument Act 1881, dated 16-04-2021, following directions are issued in compliance of the order. These are:

  1. The Magistrates having jurisdiction to try offences under the Negotiable Instruments At, 1881 shall record cogent and sufficient reasons before converting a complaint under Section 138 of the NI Act from summary trial to summons trial in exercise of power under the second proviso of Section 143 of NI Act. Due care and caution shall be exercised in this regard and the conversion of summary trial to summons trial shall not be in a mechanical manner.
  2. On receipt of such complaint under Section 138 of the NI Act wherever it is found that any accused is resident of the area beyond the territorial jurisdiction of the Magistrate to arrive at sufficient grounds to proceed against the accused as prescribed under Section 202 CrPC.
  3. While conducting any such inquiry under Section 202 CrPC, the evidence of witnesses on behalf of the complaint shall be permitted to be taken on affidavit. In suitable cases, the Magistrate may restrict the inquiry to examination of documents for satisfaction as to the sufficiency of grounds for proceeding under the said provision.
  4. Trial Court shall treat service of summons in one complaint under Section 138 NI Act forming part of a transaction, as deemed service in respect of all complaints filed before the same Court relating to dishonor of cheques issued as part of the same transaction.
  5. Trial Courts have no inherent power to review or recall the issue of summons in relation to complaint filed under Section 138 of the NI Act. However the same shall not affect the power of the Trial Court under Section 322 of CrPC to revisit the order of issue of process in case it is brought to the court’s notice that it lacks jurisdiction to try the complaint.
  6. Section 258 of CrPC has no applicability to complaints under Section 138 of the NI Act. The words “as far as may be” in Section 143 are used only in respect of applicability of Sections 262 to 265 of the Code and the summary procedure to be followed for trials under the said Code.
  7. The Appellate Courts before which appeals against the judgments in complaint under Section 138 of NI Act are pending are directed to make an effort to settle the dispute through mediation.

The Court directed that “these directions shall come into force with immediate effect.”

[Practice Directions, No. 6265/ Litigation/2021, dated 02-07-2021]


Arunima Bose, Editorial Assistant has reported this Circular.

Appointments & TransfersNews

President appoints Justice Vimla Singh Kapoor, Additional Judge of the Chhattisgarh High Court to be a Judge of the Chhattisgarh High Court, with effect from the date she assumes charge of her office.


Ministry of Law and Justice

[Notification dt. 28-04-2021]

Appointments & TransfersNews

Orders of Resignation

Justice Sharad Kumar Gupta tendered his resignation from the office of Judge, Chhattisgarh High Court with effect from 31-03-2021.


Ministry of Law and Justice

[Notification dt. 28-04-2021]

Case BriefsHigh Courts

Chhattisgarh High Court: Rajendra Singh Samant, J., dismissed the petition being devoid of merits.

The facts of the case are such that the applicant was charge-sheeted for trial in offence under Sections 13(1)(e) read with 13(2) of Prevention of Corruption Act which was challenged before this Court and was disposed off vide directions to receive the passbooks of the bank accounts, which were under seizure nut will not be able to operate the bank accounts, as there is no specific direction of the Special Court for operation of the accounts. The instant Criminal Revision was filed challenging the legality, propriety and correctness of this order by Special Judge (Prevention of Corruption Act), Raipur, by dismissing the prayer of the applicant to defreeze the bank account, which has been seized by the respondent.

Counsel for the petitioners Mr Kishore Bhaduri and Sunny Agrawal submitted that the prohibitory order of the respondent regarding operation of the bank account is uncalled for in the present situation, hence, it is prayed that the revision petition may be allowed and the impugned order may be set aside and relief be granted to the applicant.

Counsel for the respondent Mr Adil Minhaj submitted that the amount in the bank accounts can be regarded as property under seizure has been acquired unlawfully, cannot be allowed to be disbursed or disposed when the charge sheet has been filed and the prosecution has not come to an end.

The Court relied on judgment State of Maharashtra v. Tapas D. Neogy, (1999) 7 SCC 685 wherein it was held as under

“Then again the time consumed by the Courts in concluding the trials is another factor which should be borne in mind in  interpreting the provisions of Section 102 of the Criminal Procedure Code and the underlying object engrafted therein, inasmuch as if there can be no order of seizure of the bank account of the accused then the entire money deposited in a bank which is ultimately held in the trial to be the outcome of the illegal gratification, could be withdrawn by the accused and the Courts would be powerless to get the said money which has any direct link with the commission of the offence committed by the accused as a public officer. We are, therefore, persuaded to take the view that the bank account of the accused or any of his relation is `property’ within the meaning of Section 102 of the Criminal Procedure Code and a police officer in course of investigation can seize or prohibit the operation of the said account if such assets have direct links with the commission of the offence for which the police officer is investigating into.”

The Court observed that the money in the bank account may be regarded as a property and the seizure of such property on suspicion that it is connected with commission of offence held as property within the meaning of Section 102 of Criminal Procedure Code i.e. Cr.PC and the police officer also has power to prohibit the operation of such account, if such assets have linkages with the commission of offence.

The Court thus held that there is a clear conclusion of the Investigation Agency against the applicant that he has amassed wealth, acquired assets, which are disproportionate to his income “…and the prosecution against the applicant is under contemplation by the respondent side, therefore, no order can be passed to defreeze the bank accounts, which have been seized from this applicant.”

In view of the above, the instant petition was dismissed and disposed off.[Ramesh Kumar Sharma v. State of Chhattisgarh, 2021 SCC OnLine Chh 902, decided on 12-04-2021]


Arunima Bose, Editorial Assistant has reported this brief.

COVID 19Hot Off The PressNews

District Collector, Bilaspur vide an Order dayed 18-04-2021 extended the lockdown in Bilaspur District where the High Court is situated, till 26-04-2021.

In light of the aforesaid order dated 18-04-2021 of the District Collector, Bilaspur and in compliance of Order No. 73(Mis)/II-14-1/2021, dated 12.04.2021 of this Registry, the limited functioning of the High Court of Chhattisgarh shall stand extended till 26-04-2021.

In view of the above, the cases already listed in the cause list for 22.04.2021 shall be taken up on 27.04.2021.

The cases which are extremely urgent in nature may be mentioned before the Registrar (Judicial)/ Additional Registrar (Judicial) as per the practice prevalent in the High Court during holidays.

Link to the NOTIFICATION.


Chhattisgarh High Court

Notification dt. 19-04-2021

Case BriefsHigh Courts

Chhattisgarh High Court: Rajendra Singh Samant J. allowed the appeal and directed to take up the proceeding for conciliation under Section 18 (2) of the Act, 2006.

The facts of the case are such that respondent 4 i.e. Core Fab Projects Pvt. Ltd. moved an application under Section 18 of the Micro, Small and Medium Enterprises Development Act, 2006 (in short ‘the Act, 2006’), before the Facilitation Council i.e. respondent 3 which was proceeded with and notice was issued to the petitioner for appearance in that proceeding. The instant petition was filed under Article 227 of the Constitution of India praying to quash the proceeding on application for reference before respondent 3 on grounds that the proceeding so initiated is against the provisions of Section 18 of the Act, 2006.

Counsel for the petitioners Mr Amit Soni submitted that the conciliation proceeding under Section 18 (2) of the Act, 2006 is a must, therefore, it is prayed that respondent 3 be directed to comply with Section 18 (2) of the Act, 2006, before proceeding to decide the reference.

Counsel for the respondents Mr B P Banjare and P R Patankar submitted that respondent 3 has followed the procedure as provided under the Act, 2006. Section 18 (5) of the Act, 2006 provides time within which the matter has to be decided and that time limit has already crossed.

The Court observed that the words in Section 18 (2) of the Act, 2006 give a mandate that the Council shall itself conduct conciliation in the matter or may seek assistance of any institution or center providing alternative dispute resolution services. The only word used in the provision is ‘conciliation’. Conciliation is procedure adopted for alternate dispute resolution in which neutral person proposes the parties in dispute to come to agreement for resolving the dispute between them, further there are specific provisions for conciliation in Arbitration and Conciliation Act, 1996. Therefore, the term ‘compromise’ has different meaning than term ‘conciliation’. In a compromise, both the parties in a dispute strictly negotiate with each other, whereas, in conciliation proceeding one neutral person is engaged in confidential manner to bring about the settlement of dispute between the parties and granted opportunity for compromise itself would not be sufficient.

The Court further observed that the parties were given opportunity to compromise and negotiate for terms and parties failed in that, subsequent to which, the proceeding under Section 18 (2) of the Act, 2006 has been closed and Facilitation Council has ordered for proceeding under Section 18 (3) of the Act. The Court further observed that the proceeding under Section 18 (2) of the Act, 2006 is still not over as the conciliation proceeding has not taken place, therefore, it is held that respondent 3 has failed to exercise its authority under Section 18 (2) of the Act, either by involving itself or by handing over the matter to any other institutions or centers providing alternate dispute resolution services.
The Court thus held “the order of the respondent 3 for proceeding under Section 18 (3) of the Act is erroneous and illegal regarding, in which interference is required for by this petition.”

In view of the above, petition was disposed off.[Sew Infrastructure Limited v. State of Chhattisgarh, 2021 SCC OnLine Chh 905, decided on 12-04-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Chhattisgarh High Court: Rajendra Chandra Singh Samant J. dismissed the revision petitions being devoid of merit.

The facts of the case are such that the petitioners are directors of a company named H.B.N. Dairy & Allied Limited whose business is to seek investment from investors in the business of the company and part of the profit was assured to the investors. Due to irregularities being found, SEBI directed to discontinue the services and to make repayments to the investors. The charges have been framed against the applicants for commission of the offence under Section 420, 409 of the Indian Penal Code and Section 3, 4 & 5 of the Prize Chits Money Circulation Schemes (Banning) Act, 1978 and Section 10 of Protection of Depositors Interest Act, 2005. An application under Section 239 of Criminal Procedure Code i.e. Cr.P.C. was filed seeking discharge from the charges which came to be dismissed. Assailing this order, instant revision petitions were filed.

Counsel for the petitioners Mr. Bhashkar Payashi, Vibhash Tiwari and Rohitashwa Singh submitted that the framing of charges against the applicants in all three cases is erroneous and illegal, as there had been no prima-facie case present against these applicants for framing of such charges. The company has acted in accordance with the direction of SEBI and repaid the amount to various investors in Chhattisgarh. Therefore, the applicants’ company did not have any dishonest intention. Because of the registration of FIR, the applicants’ company is now unable to dispose of its property, which has become hindrance in making repayment to the investors.

Counsel for the respondents Mr. Adil Minhaj submitted that material in the charge-sheet in all three cases contains evidence to show that the applicants had no intention to make any refund to the investors/depositors, therefore, intention of the applicants was fraudulent from the very beginning.

The Court observed that it has been found that the applicants are directors of that company, who have given inducement to numerous persons regarding their fraudulent schemes and taken deposits and none of them have been paid the refund. On this basis charge-sheets have been filed. The applicants have been unable to establish that by any reason present, the applicants’ company, which was Non-Banking Company, had any authority to take such collections of money from the public. The order of SEBI is also not in favour of the applicants’ company. Hence, the allegations present regarding dishonest intention of the applicants cannot be discarded unless and until these applicants establish in the trial that their intention were bonafide.

The Court thus held “it can be said that the activity of the applicants’ company appears to be covered under Section 2 (c) of the Act, 1978 and therefore, promotion of such scheme, which is banned under Section 3 of the Act, 1978 is punishable under Section 4 of the same Act, 1978, regarding which, there is sufficient evidence present for framing of charge against the applicants.”[Amandeep Singh Saran v. State of Chhattisgarh, 2021 SCC OnLine Chh 901, decided on 07-04-2021]


Arunima Bose, Editorial Assistant has reported this brief.

COVID 19Hot Off The PressNews

COVID-19 Surge

  • In view of the upsurge in the COVID-19 Cases, Chhattisgarh High Court has suspended the normal functioning of the High Court with minimum support staff to be deputed on a rotational basis to deal with extremely urgent cases as to be decided either by the Chief Justice or the Judge nominated by the Chief Justice.
  • No Filing of fresh cases will be allowed.
  • The above period will not be counted for the working out limitation period.
  • Officer/Officials of the High Court shall work from home during the above period.
  • Registrar General shall call for the staff as may be required for the skeletal functioning of the High Court.
  • The Offices/Officials will not leave the Headquarter and will report to duty without any lapse.
  • If Collector and District Magistrate extends lockdown in Bilaspur District beyond the aforesaid period then the present arrangements regarding the functioning of High Court will be continued.

Link to the notice.


 

Case BriefsHigh Courts

Chhattisgarh High Court: A Division Bench of P. R. Ramchandra Menon and Parth Prateem Sahu, JJ. sets aside the impugned order and allowed the appeal.

Background

The facts of the case are such that a combined notification (Geology and Mining Department and Panchayat & Rural Development Department and Public Works Department i.e. PWD) governed by 2008 Rules, 2011 Rules and 2016 Rules respectively was issued for filling up the posts of Draughtsman/Assistant Draughtsman (Civil) specifying the eligibility conditions and prescribed qualifications in terms of the relevant rules. The test was conducted, and a provisional list of successful candidates was declared when it was noticed that the selected candidates were not having the ‘prescribed qualifications’ under the Rules and the Advertisement, but were having much higher qualification of Degree or Diploma in Civil Engineering and such other subjects. A representation to the Board followed by a petition was filed but to no avail. It was held that the relevant Rules and Advertisement did not stipulate any higher qualifications of Diploma, Degree or Post Graduation in the subject concerned, but for stipulating ITI, it was decided that the persons with higher qualifications would not be considered and included in the list of eligible candidates. But nothing was mentioned as to why the same analogy was not applicable in the case of the PWD. The learned Single Judge held that the higher qualification of Degree/Post Graduate Degree in Civil Engineering would presuppose the lower qualification as per advertisement, in view of the law declared by the Apex Court in Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596. The answer given in the ‘positive’ by the learned Single Judge, dismissing the writ petition challenging the proceedings is put to challenge by the instant appeal.

Submissions

Counsel for the appellants Mr Prateek Sharma submitted that having directed the Government to give effect to the undertaking that they would modify the select list in respect of the Mining & Geology Department, by excluding the higher qualified candidates and confining it to the candidates having the specific qualifications as prescribed in the Rules and notified in the Advertisement, the learned Single Judge went wrong in not extending the said benefit in the case of the PWD involving exactly similar Rules and the similar qualifications as given in the advertisement, which in fact has resulted in differential treatment. This has resulted in patent arbitrariness and discrimination on the parts of the State, violating Article 14 of Constitution of India.

Counsel for the respondents submitted that the qualification prescribed in the Advertisement is only the ‘minimum qualification’ and that there is no bar either in the Rules or in the Advertisement that the persons with higher qualifications will not be considered. It was further submitted that the Rules do not place any bar in selecting candidates with higher qualification and that it is sustainable in view of the law declared by the Supreme Court in Jyoti K.K. (supra) that possession of higher qualification pre-supposes lower qualification. It was also submitted that there is absolutely no merit in the appeal as all the candidates placed in the list are candidates who have proved their merit by virtue of their qualification and performance.

 Scope of the verdict in Jyoti K.K (supra)

The Supreme Court in Jyoti KK. (supra) held that if the candidate has acquired the higher qualification in the same faculty, such qualification can certainly be stated to presuppose acquisition of the lower qualification prescribed for the post.

The Court observed that the decision was rendered with reference to a statutory rule, particularly Rule 10(a) (ii) of the 1956 Rules which enabled reckoning of higher qualification which presupposes the acquisition of lower qualification prescribed for the post as sufficient for appointment to the said post.

The matter came up for consideration in Zahoor Ahmad Rather v. Sheikh Imtiyaz Ahmad, (2019) 2 SCC 404 wherein it was held that the verdict passed by the Apex Court in Jyoti K.K. (supra) was on the basis of a specific enabling rule i.e. Rule 10(a) (ii) of the 1956 Rules, where the higher qualification presupposed acquisition of lower qualification and in the absence of any statutory rule in this regard, such inference cannot be drawn.

Observations

The Court observed that no rule in the ‘2016 Rules’ can be referred enabling to reckon the ‘higher qualification’ as well, which presupposes the acquisition of lower qualification for appointment to the post of Assistant Draughtsman in the PWD. It was observed that because of the absence of any such enabling rule to reckon the higher qualification presupposing the lower qualification for recruitment in the Mining & Geology Department, the Government has already taken a decision to modify the list by excluding the candidates having higher qualifications and to confine the same only to the specific qualification as contained in the Rules/Notification. Despite the fact that the rule position is exactly same in the PWD (as in the case of Mining & Geology Department), such a course was not pursued by the Respondent/ Government which results in blatant differential treatment.

Decision

In the above facts and circumstances, we do not find any justification for the Respondents to have provided a differential treatment for recruitment to the post of Assistant Draughtsman in the ‘PWD’, unlike the course sought to be pursued in respect of the ‘Mining & Geology Department’, having exactly similar rules governing the eligibility conditions/qualifications as notified in the advertisement.

In view of the above, appeal was allowed and impugned decision was set aside.[Praveen Kumar Rajak v. State of Chhattisgarh,  2021 SCC OnLine Chh 648, decided on 18-03-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Appointments & TransfersNews

President appoints Naresh Kumar Chandravanshi and Narendra Kumar Vyas to be Additional Judges of the Chhattisgarh High Court, for a period of 2 years.


About:

Narendra Kumar Vyas, B.Sc., L.L.B. had enrolled as Advocate on 16.03.1996. He has over 23 years of experience. He has practiced in Labour Court, Industrial Court, District Court, Bilaspur, Raigarh, Janjgeer-Champa, EPF Tribunal, Central Government Industrial Tribunal cum Labour Court during period 1996 to 2002 and after that has been practicing in the Chhattisgarh High Court till date.

Naresh Kumar Chandravanshi, B.A., LL.B., joined the Judicial Service on 11.07.1990. As a Judicial Officer, he served as Additional District & Sessions Judge, Sakti, Additional Registrar, High Court of Chhattisgarh, District & Sessions Judge, Surguja, Ambikapur, Legal Advisor to Governor of Chhattisgarh and presently he is working as Principal Secretary, Law & Legislative Affairs Department, Govt. of Chhattisgarh, Raipur.


Ministry of Law and Justice

[Notification dt. 19-03-2021]

Case BriefsHigh Courts

Chhattisgarh High Court: Rajendra Chandra Singh Samant J., allowed the petition and quashed the impugned order.

The facts of the case are such that the marriage of petitioner 1 with petitioner 2 was solemnized on 17-02-2016. Because of differences between them, they started living separately on 10-01-2018. It was almost after two years; application under Section 13 (1B) of the Hindu Marriage Act, 1955 was filed on 28-01-2021. The learned Family Court directed for counselling of the parties, which failed, regarding pursuant to which the case was posted for after six months in accordance with Section 13B (2) of the Act, 1955 which provides for cooling period. The petitioners then filed an application for waiving off the cooling period, which was dismissed by the impugned order. The instant writ petition was filed under Article 227 of the Constitution of India, for quashing the impugned order.

Counsel for the petitioners submitted that application under Section 13 (1B) of the Act, 1955, praying for decree of divorce on mutual consent has been filed jointly. It was further submitted that the impugned order has been erroneously passed in light of the law laid down in Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746.

In Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746 it was laid down

“19. Applying the above to the present situation, we are of the view that where the Court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13B(2), it can do so after considering the following :

(i) the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself;

(ii) all efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;

(iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;

(iv) the waiting period will only prolong their agony.

The Court observed that the facts present in this case disclose that the petitioners have resided more than one year separately, therefore, the requirement under Section 13B (1) of the Act, 1955, has completed. Thereafter, the petition under Section 13 (1B) of the Act, 1955 has been filed on 28-01-2021, therefore, a further requirement of cooling period of six months under Section 13B(2) of the Act, 1955, has also been completed. Further, counselling procedure is also over, which has failed.

The Court thus held that, under these circumstances, and as per the guidelines laid down by the Supreme Court in Amardeep Singh (Supra), it was a fit case, in which, the petitioners should have been benefited with the relief as they had prayed for.

In view of the above, impugned order was set aside and petition was allowed.[Raju Kumar In re, 2021 SCC OnLine Chh 564, decided on 15-03-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K Agrawal J., allowed the petition and held that forfeiture of earned remission of a convict is violative of fundamental rights under Article 21 of the Constitution of India.

The facts of the case are such that the petitioner is a convicted prisoner undergoing sentence in Central Jail, Bilaspur for commission of offences under Sections 302, 307 and 149 of Penal Code, 1860. It was alleged that petitioner was found in possession of prohibited article, a prison offence under Section 45 of the Prisons Act, 1894, the Octagon Officer submitted his report to the Jailor, made a recommendation to the Jail Superintendent which was then simply approved by the Jail Superintendent on the same date and as such, the order of forfeiture of 10 days of petitioner’s earned remission was passed. The petitioner has assailed the said order on the ground that such forfeiture of his earned remission, without affording him an opportunity of hearing, is in violation of his fundamental right guaranteed under Article 21 of the Constitution of India.

Counsel for the petitioner submitted that remission forfeited by the Jail Superintendent on account of a prohibited article found in possession of the petitioner, which is a prison offence under Section 45(12) of the Prisons Act, 1894, is absolutely unjust and improper and is in violation of petitioner’s fundamental right under Article 21 of the Constitution of India as no enquiry was conducted by the Jail Superintendent as contemplated in Rule 734 of Chhattisgarh Prisons Rules, 1968 nor the petitioner was afforded an opportunity of hearing in that enquiry, as such, the impugned order passed by the Jail Superintendent deserves to be set aside.

Counsel for the respondents submitted that the impugned order and submit that the instant petition deserves to be dismissed.

Amicus curiae relied on judgment Anand Rao v. Inspector General of Prisons, 1982 MPLJ 73 (DB) and submitted that without following the due procedure as prescribed in Rule 734 of Chhattisgarh Prisons Rules, 1968, petitioner’s earned remission could not have been forfeited.

The Court relied on judgment Sunil Batra v. Delhi Admn., (1978) 4 SCC 494 and observed, it is quite vivid that in the instant case, the enquiry has only been made by the Octagon Officer and the report has been submitted to the Jailor, who has then recommended forfeiture of petitioner’s 10 days of earned remission to the Jail Superintendent, but without giving an opportunity to the petitioner to explain his conduct, penalty of forfeiture of earned remission has been imposed upon him by the Jail Superintendent as he agreed to the recommendation made by the Jailor for forfeiting 10 days of remission earned by the petitioner.

The Court thus held that no such opportunity has been granted to the petitioner to explain his conduct and even otherwise, no enquiry was conducted by the Jail Superintendent while forfeiting petitioner’s earned remission as pursuant to the recommendation made by the Jailor, petitioner’s 10 days’ earned remission has been forfeited, which is violative of petitioner’s fundamental right guaranteed under Article 21 of the Constitution of India.

In view of the above, petition was allowed.[Suraj Gupta v. State of Chhattisgarh, 2021 SCC OnLine Chh 448, decided on 26-02-2021]


Arunima Bose, Editorial Assistant has put this story together.

Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K Agrawal, J.,  allowed the appeal and set aside the impugned orders of the First Appellate Court being unreasonable.

The facts of the case are such that the suit accommodation was of one Abdul Wahid Khan who sold the property to plaintiffs vide sale deed and got themselves registered in the Municipal Corporation Assessment Register. The said accommodation was rented as a shop to defendant 1 who was supposed to pay the monthly rent to the plaintiff after the sale which he failed to do upon which notice for eviction was sent to him. Thereafter a suit was filed under Section 12(1) (a), (c), (f) and (g) of the Chhattisgarh Accommodation Control Act, 1961 by the plaintiffs opposing which defendant stated that the plaintiff has no right over the title of the property under Section 43 and Section 64 of the Wakf Act, 1995 as it is a wakf property and Abdul Rehman was only a muttawali. The trial court granted a decree for eviction in favour of the plaintiffs being aggrieved by which civil appeal was preferred against the plaintiffs. The first appellate Court allowed both the appeals and dismissed the suit of the plaintiffs holding that the suit property is wakf property; therefore, the jurisdiction of the Civil Court is barred by Section 85 of the Wakf Act. Assailing this order, present second appeal was filed.

Issue 1: Rules of Evidence vis a vis Waqf Deed

Counsel for the appellants submitted that the first appellate Court has clearly erred in holding that the suit property is wakf property by relying upon Exhibit D/10 which is the copy of the alleged wakf deed as it is not primary evidence, being a copy made from the copy of the original document, and no foundation was laid for leading secondary evidence and hence Section 90 of the Evidence Act would not be applicable as for its applicability, the foundation has to be laid to lead secondary evidence.

The Court relied on judgment Lakhi Baruah v. Padma Kanta Kalita, (1996) 8 SCC 357 wherein it was held that

“17. The position since the aforesaid Privy Council decisions being followed by later decisions of different High Courts, is that presumption under Section 90 does not apply to a copy or a certified copy even though thirty years old: but if a foundation is laid for the admission of secondary evidence under Section 63 of the Evidence Act, 1872 by proof of loss or destruction of the original and the copy which is thirty years old is produced from proper custody, then only the signature authenticating the copy may under Section 90 be presumed to be genuine.”

The Court observed that Section 65 of the Evidence Act permits secondary evidence to be given of the existence, condition or contents of documents under the seven exceptional cases in which secondary evidence is admissible. The conditions laid down in the said section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for n the section.

The Court thus held that the first appellate Court is absolutely unjustified in holding that the suit property is a wakf property, as such, the suit property has not been proved to be wakf property in absence of foundation for leading secondary evidence under Section 65 of the Evidence Act.

Issue 2: Jurisdiction of the Civil Court vis a vis Section 85 of the Waqf Act

It was further submitted that the instant suit was filed before the trial court on 06-10-1995 and the Wakf Act came into force w.e.f. 22-11-1995 and though defendant 2 was impleaded as a party/defendant in the suit vide order, since the suit had already been instituted prior to coming into force of the Wakf Act, 1995, therefore, by virtue of Section 7(5) of the Wakf Act, 1995, the suit is not barred by Section 85 of the Wakf Act.

Counsel for the respondents submitted that with regard to the question as to whether the suit property is a wakf property has to be decided only by the Wakf Tribunal after coming into force of the Wakf Act w.e.f. 22/11/1995, as such, the jurisdiction of the Civil Court is absolutely barred by virtue of Section 85 of the Wakf Act. It was further submitted that even if it is held that Section 85 of the Wakf Act, 1995 is not applicable, then also by virtue of Section 55C of the Wakf Act, 1954, the jurisdiction of the Civil Court is barred by virtue of Section 6A of the Madhya Pradesh Wakf (Amendment) Act, 1994.

The Court relied on judgment Taraknath v. Sushil Chandra Dey, (1996) 4 SCC 697, B.P. Pathak v. Dr Riyazuddin Haji Mohammad Ali, 1975 SCC OnLine MP 50, Sardarilal v. Narayanlal, 1979 SCC OnLine MP 25 and Sk. Sattar Sk. Mohd. Choudhari v. Gundappa Amabadas Bukate, (1996) 6 SCC 373 and observed that in the light of the provisions contained in Section 109 of the Transfer of Property Act i.e. TP Act and the principles of law laid down by their Lordships of the Supreme Court and the M.P. High Court in the aforecited judgments, it is quite vivid that Section 109 of the TP Act creates a statutory attornment and by virtue of the transfer of leased property, transferee ipso facto acquires all the rights of the lessor, and a new relationship is created between the transferee and the lessee.

Issue 3: Meaning of the term ‘if he is the owner thereof’

 The Court relied on judgments Apollo Zipper India Ltd. v. W. Newman and Company, (2018) 6 SCC 744 and observed the term ‘if he is the owner thereof’ used in Section 12(1) (f) of the Act of 1961 to in an eviction suit filed by the landlord against the tenant under the rent laws when the issue of title over the tenanted premises is raised, the landlord is not expected to prove his title like what he is required to prove in a title suit. It was further held that the burden of proving the ownership in an eviction suit is not the same like a title suit.

The Court thus held that

Reverting to the facts of the present case in the light of the aforesaid meaning and definition of the term ‘if he is the owner thereof’ used in Section 12(1)(f) of the Act of 1961 and the principles of law enunciated by the Supreme Court and the M.P. High Court in that behalf, it is quite vivid that in the instant case, the plaintiffs purchased the suit property from the erstwhile owner Abdul Wahid Khan vide Exhibits P1(c) and P3(c) and thereafter became the owner of the suit property and also the landlords of defendant No. 1. Plaintiffs have clearly stated that they have no other alternative suitable accommodation in the township of Bilaspur and the suit accommodation is required bonafidely for starting his business, though a lengthy cross-examination has been made but nothing has been brought out to demonstrate that either their need of the suit accommodation is not bona fide or they have any other alternative suit accommodation in the township of Bilaspur to fulfill their bona fide need. As such, the plaintiffs have successfully proved the fact that the suit accommodation has admittedly been let out by the erstwhile owner Abdul Wahid Khan for non residential purpose to the tenant/defendant No. 1 and plaintiffs needs the suit accommodation for starting their business and he has no other alternative accommodation for carrying out their business in the township of Bilaspur, therefore, the ground under Section 12(1) (f) of the Act of 1961 is established. However, I do not find any ground established under Section 12(1) (c) and (g) for evicting the defendant 1 from the suit accommodation.”

In view of the above, appeals were allowed and impugned judgment was set aside.[Jaipal Choudhary v. Chhattisgarh Waqf Board, 2020 SCC OnLine Chh 1179, decided on 14-12-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Chhattisgarh High Court: Gautam Chourdiya, J., upheld the decision of the trial court in a matter with regard to Section 379 Penal Code, 1860.

The present appeal was filed under Section 374(2) of Criminal Procedure Code, 1973 challenging the legality, validity and propriety of the Judgment passed by the Additional Sessions Judge, whereby the appellant stands convicted under Section 379 of the Penal Code, 1860.

Complainant was working as a Secretary at Gram Panchayat and on the same day after the meeting, he went to the bank and withdrew a sum of Rs 12, 250. Thereafter, while he was returning home, on the way accused and co-accused met him and all of them together went to have mutton and consumed liquor.

From there, they reached the place near nursery where they stopped the motorcycle and both the accused started quarrelling with the complainant and after threatening him of life, assaulted upon him by stone and committed marpeet with him, as a result of which sustained injuries on his body and became unconscious.

After the above incident, accused and co-accused looted the amount of Rs 12,250 from complainant’s possession and fled from there.

Complainant lodged FIR against the accused and co-accused. Accused was arrested and achrge sheet was filed against the accused persons under Sections 307, 394 read with 34 and 397 of IPC.

Trial Court acquitted the co-accused of the said offence and convicted and sentenced the accused.

Counsel for the appellant submitted that the appellant had been falsely implicated in the case. No witness had seen the incident. Complainant lodged the FIR after the delay of 2 days. Hence the impugned judgment of conviction and order of sentence deserves to be set aside and the appellant be acquitted of the charges.

Bench held that in the totality of facts and circumstances of the present case, it stands proved beyond all reasonable doubt that it is the accused who looted complainant’s money. No explanation was given by the accused regarding the seizure of money from him and he did not claim anywhere in his statement that the said amount belonged to him.

It is a well settled principle of law that statements of police officers cannot be discarded or looked with suspicion merely because they are involved in the investigation.

If their statements are found free from the suspicion of falsity and have a ring of truth, they can safely be relied upon.

In the instant case, defence did not allege that the investigating officer was in any way inimical to the accused or was having any ill-will against him.

With regard to the delay in lodging FIR, the same happened due to the complainant was admitted in the hospital in an unconscious condition.

In view of the above-stated, High Court opined that conviction of the appellant under Section 379 IPC awarded by the trial court was just and proper warranting not interference by the Court.

The appeal being without any substance was liable to be dismissed. [Raju v. State of Chhattisgarh, 2020 SCC OnLine Chh 433, decided on 19-10-2020]