Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Manoj Misra and Virendra Kumar Srivastava, JJ. clarified that no protection shall be given and the investigating agency shall be free to take all steps to bring the investigation to its logical conclusion if the victim is not produced by the date fixed.

This instant petition was sought for the quashing of the FIR registered under Sections 363, 366, 506 IPC. The allegation entailed in the FIR is that the victim (Petitioner 5), a sixteen-year-old girl was enticed away by the accused person.

Counsel for the Petitioner, Ram Sajivan submitted that the girl is an adult and that she had voluntarily married Kishan Kumar (Petitioner 1). Reliance was placed on the Aadhaar Card of petitioner 5 to prove the age. The date of birth as per Aadhaar is 01.01.2000.

Government Advocate for the Respondent submitted that the date of birth as per Aadhar Card has not been conferred any conclusive status by law and, therefore, it would be appropriate that this petition be disposed of by requiring the investigating agency to determine the age of the Petitioner 5 and record her statement and, thereafter, take appropriate action as per law.

After analyzing the submissions of the parties, the Court observed that there is no satisfactory documentary evidence to hold the victim to be an adult. The Court also provided certain directions to petitioner 1, that he shall produce petitioner 5 before the court of Chief Judicial Magistrate, Farrukhabad to ascertain whether any force has been used on her or she has been voluntarily in the company of the petitioner 1. In case the victim deposes before the Chief Judicial Magistrate that force has been used on her, the Chief Judicial Magistrate shall proceed to pass appropriate orders immediately in respect of the custody/protection of the victim. However, in case the victim deposes that she has been voluntarily in the company of the petitioner 1 or any other person and that no force has been used on her, CJM shall call upon the Investigating Officer of the case and fix a date for appearance of the informant or the parents or natural guardian of the victim for the purpose of determining the age of the victim. Though in the event the victim is found to be a minor, the police would be free to take the investigation to its logical conclusion and may affect the arrest of the accused. [Kishan Kumar v. State of U.P., 2019 SCC OnLine All 4337, decided on 22-11-2019]

Case BriefsHigh Courts

Madras High Court: The Division Bench of R. Subbhiah and T. Krishnavalli, JJ., dismissed a writ petition filed for issuance of a Writ of Certiorarified Mandamus.

The present writ petition was filed by a former Chief Judicial Magistrate calling for records relating to the proceedings of the first and second respondent and quashing the same by directing to reinstate him as Chief Judicial Magistrate, Tiruvannamalai.

Facts of the Case:

Petitioner was appointed as Civil Judge in Tamil Nadu State Judicial Service. During the course of service, the petitioner was transferred and posted at various places. While the petitioner was in Judicial Service, by a Memorandum by the second respondent he was informed that while recording the Annual Confidential Report as Judicial Magistrate No. III for the period from 02-05-2012 to 16-10-2012, High Court has recorded his reputation as to honesty, integrity and impartiality as ‘not satisfactory’ and under special remarks column, it was stated that “officer is to avoid close contact with Advocates”.

On receipt of the above-stated memorandum, the petitioner made a representation requesting the High Court to review and expunge the said adverse remarks. Later, the second respondent informed the petitioner that on consideration of his representation High Court had expunged the remarks.

Petitioner through the “Times of India report” came to know that he had been sent out of service at the age of 50 years for misconduct pursuant to a resolution passed by the Full Court.

On being aware of the same, the petitioner made another representation to the second respondent stating that he had worked as a Judicial Officer in several districts for more than 18 years without any allegations and he has also reached the norms by the High Court. Petitioner had enclosed his work statement along with the representation and requestedthe second respondent to permit him to continue in service.

Administrative Committee of the High Court resolved to continue the services of the Judicial Officer subject to the approval of the Full Court. Though, full-court unanimously resolved not to extend the service of the petitioner with direction to the Registry to address the State Government to issue necessary orders.

First respondent passed the order compulsorily retiring the petitioner from service in “public interest”.

Thus, the orders passed by the respondents are under challenge in the present writ petition.

Senior Counsel representing the petitioner submitted that there are various factors that contribute to a Judicial Officer not being able to achieve the norms for a certain period and that by itself is not a ground to compulsorily retire Judicial Officer. The impugned orders are passed based on total non-application of mind and there is an error of jurisdiction.

Sum and substance of the contentions urged by the learned Senior Counsel appearing for the petitioner are as follows:

  • The necessary ingredients under FR.56(2) for resorting to compulsory retirement are totally absent in the present case, since, in the Minutes of the Full Court meeting held on 19.03.2018, the words “compulsory retirement”, “is of the opinion” and “in public interest”, are not found.
  • Compulsory retirement passed against the petitioner is not based on the subjective satisfaction of the Full Court, since there are no records to show that the work done statements and ACRs of the petitioner were placed or there were any deliberations said to have been made. Moreover, there is no reference with regard to the Resolution of the Administrative Committee also.
  • Impugned order is based on no materials to support the ultimate conclusion.

High Court’s observation and conclusion

Court stated that the “work done statement” of the petitioner it was clear that the petitioner had not reached norms for a certain period. Therefore, it cannot be said that the decision taken by the Full Court is without any materials.

Another submission of the Senior Counsel for the petitioner that in the Minutes of the meeting of the Full Court, words “compulsory retirement” is of the opinion and “in public interest” were not found, which would show that the necessary ingredients for resorting to compulsory retirement are totally absent in the present case. In respect to this, Court was of the opinion that since such words were not mentioned in the impugned G.O. of the first respondent or the order passed by the second respondent, it will not ipso facto render the orders, which are impugned in this writ petition, vitiated.

“It is well settled that the order of compulsory retirement is neither a punishment nor a stigma and the principles of natural justice have no role play in ordering compulsory retirement.”

High Court stated that,

The conclusion arrived at by the respondents to compulsorily retire the petitioner from service cannot be interfered with by this Court, unless such a conclusion is based on no evidence or irrelevant material.

Court relied on the High Court of Judicature at Bombay v. Udaysingh, (1997) 5 SCC 129, wherein the scope of the Court in regard to Judicial Review of cases was discussed.

Hence, the Court held that it has no power to interfere with the decision taken by the respondents and to substitute its own conclusion.

Court added to its conclusion that,

“There are evidences made available against the petitioner based on which the respondents have come to a conclusion to compulsory retire the petitioner from service in the form of service particulars of the petitioner like ACR, work done statement, vigilance enquiry report, leave particulars etc. While so, it cannot be again said that there are no material at all for the respondents to arrive at a conclusion to pass the order of compulsory retirement against the petitioner.”

Thus the Court dismissed the petition in view of the above reasons. [R. Naraja v. State of Tamil Nadu, 2019 SCC OnLine Mad 9120, decided on 05-11-2019]

Case BriefsSupreme Court

Supreme Court: The bench of AM Khanwilkar and Dinesh Maheshwari, JJ has held that the Chief Judicial Magistrate (CJM) is competent to process the request of the secured creditor to take possession of the secured asset under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The bench said,

“substitution of functionaries (CMM as CJM) qua the administrative and executive or so to say non­judicial functions  discharged by them in light of the provisions of Cr.P.C., would not be inconsistent with Section 14 of the 2002 Act; nay, it would be a permissible approach in the matter of interpretation thereof and would further the legislative intent having regard to the subject and object of the enactment. That would be a meaningful, purposive and contextual construction of Section 14 of the 2002 Act, to include CJM as being competent to assist the secured creditor to take possession of the secured asset.”

The Court further noticed that the expressions “CMM and CJM” are used interchangeably in Cr.P.C. and are considered as synonymous to each other. Section 14, even if read literally, in no manner denotes that allocation of jurisdictions and powers to CMM and CJM under the Code of Criminal Procedure are modified by the 2002 Act. Hence, Section 14 of the 2002 Act, stricto sensu, cannot be construed as being inconsistent with the provisions of the Code of Criminal Procedure or vice­versa in that regard. If so, the stipulation in Section 35 of the 2002 Act will have no impact on the expansive construction of Section 14 of the 2002 Act.

The bench, however, noted that Section 14 of the 2002 Act is not a provision dealing with the jurisdiction of the Court as such. It is a remedial measure available to the secured creditor, who intends to take assistance of the authorised officer for taking possession of the secured asset in furtherance of enforcement of security furnished by the borrower. The authorised officer essentially exercises administrative or executive functions, to provide assistance to the secured creditor in terms of State’s coercive power to effectuate the underlying legislative intent of speeding the recovery of the outstanding dues receivable by the secured creditor. At best, the exercise of power by the authorised officer may partake the colour of quasi­judicial function, which can be discharged even by the Executive Magistrate. The authorised officer is not expected to adjudicate the contentious issues raised by the concerned parties but only verify the compliances referred to in the first proviso of Section 14; and being satisfied in that behalf, proceed to pass an order to facilitate taking over possession of the secured assets.

The Court said that

“the provisions of the Section 14 of the 2002 Act are in no way inconsistent with the provisions of Code of Criminal Procedure, it must then follow that the provisions of the 2002 Act are in addition to, and not in derogation of the Code.”

[Authorised Officer, Indian Bank v. D. Visalakshi, 2019 SCC OnLine SC 1242, decided on 23. 09.2019]

Case BriefsHigh Courts

Kerala High Court: A Single Judge Bench comprising of Devan Ramachandran, J. dismissed a civil writ petition calling into question the statutory competence of a Chief Judicial Magistrate (CJM) to act under the provisions of Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002.

Learned Senior Counsel on behalf of the petitioner, Mr. K.P. Dandapani, submitted that Section 14 of SARFAESI Act vests jurisdiction to assist the secured creditor in taking possession of a secured asset, only with a Metropolitan Magistrate or a District Magistrate, within whose jurisdiction any such secured asset is situated or found. Since Ernakulam district was not a metropolitan area under the provisions of the Code of Criminal Procedure, 1973, therefore, the CJM would not have jurisdiction to act under Section 14 of SARFAESI Act.

The Court noted that the present issue was pending consideration of Supreme Court in a case titled P.M. Kelukutty v. Young Mens Christian Association numbered as SLP No. 4665 of 2016. However, relying on the judgments of Division Bench of this Court in Muhammed Ashraf v. Union of India, 2008 SCC OnLine Ker 201 and Radhakrishnan V.N. v. State of Kerala, ILR 2008 (4) Ker 863 it was held that a Chief Judicial Magistrate is also authorized by law to act under the provisions of Section 14 of the SARFAESI Act.

In view of the above, the petition was dismissed and petitioners were granted liberty to approach the competent statutory forum for invoking alternative remedies as per law.[Pouly v. Union of India,2018 SCC OnLine Ker 5415, decided on 15-11-2018]