Experts CornerShardul Amarchand Mangaldas


The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI) was enacted with the objective to enable banks and financial institutions to realise long-term assets, to improve recovery of debts and reduce non-performing assets by taking possession and selling such assets, in the manner and as per the procedure as provided therein and read with the Security Interest (Enforcement) Rules, 2002 (Rules).


The SARFAESI read with the Rules, meticulously sets out the step-by-step procedure which is to be adhered to by the banks/financial institutions i.e. the secured creditors, for taking possession and ultimately effecting the transfer of a non-performing asset. Non-adherence to any single procedural step or even non-compliance of a time period stipulated therein by the secured creditor, has lead to a plethora of litigation.


A third-party purchaser, being interested in acquiring the secured asset must primarily ensure that the secured creditor has taken all the necessary steps and checked all the boxes as spelt out under the SARFAESI read with the Rules, prior to acquisition of the secured asset.


Sale on “As is where is basis”

The sale of secured assets under SARFAESI in most cases takes place on “as is where is basis” which means that the purchaser would be acquiring the asset with all its existing rights, obligations and liabilities. Auction notices which are issued by the secured creditors usually state that “the property is free from all encumbrances known to the secured creditor” and thereby shifting the onus onto the purchaser to make its own independent enquiry. However, the Bombay High Court, Nagpur Bench, in its recent judgment dated 18-2-2021 in Medineutrina (P) Ltd. v. District Industries Centre[1] held that, when a property is sold on “as is where is basis”, though it would be upon the purchaser to make reasonable enquiries about the encumbrances affecting the property, the mere mention of “as is where is basis” or any such phrase should not absolve the secured creditor of its obligation to make proper enquiries about other dues/encumbrances affecting the property, to obtain information about which the secured creditor has the means and which information should be disclosed in the auction notice so that the purchaser can make a conscious decision and not raise a plea of not having been informed. Insofar as encumbrances on account of statutory/government/municipal/ revenue dues are concerned, the responsibility of obtaining the details thereof is of the secured creditor. In spite of the aforesaid directions laid down in the judgment, the Court further held that an encumbrance affecting the secured asset, prior to the issuance of the auction notice, would be the liability of the purchaser in order to obtain a clear and marketable title to the property having purchased the same on “as is where is basis”.


Even though the aforesaid judgment directs secured creditors to make a disclosure of statutory encumbrances in the auction notice, it is still to be seen if the directions laid down therein will become a reality and will protect a third-party purchaser who is acquiring the secured asset on “as is where is basis”. It is prudent for the purchaser to make its own independent enquiry with respect to outstanding dues and encumbrances affecting the property, so as to factor in such cost as such additional cost will not form part of the consideration payable to the secured creditor for acquisition of the asset. As per Section 31-B of SARFAESI [as amended by the Enforcement of Security Interest and Recovery of Debts Laws and Miscellaneous Provisions (Amendment) Act, 2016], any debt due to a secured creditor by sale of assets over which security interest is created, shall take priority over any debt due to the Central Government, State Government or local authority. Accordingly, any other dues/encumbrances affecting the property, will have to be cleared in addition to the consideration payable to the secured creditor so as to enable the purchaser to obtain a clear and marketable title to the secured asset.


Borrowers right to foreclose and redeem the mortgage

As per Section 60 of the Transfer of Property Act, 1882, the mortgagor/borrower has a right to redeem the mortgage on payment of the entire mortgage money to the secured creditor. It has been the contention of borrowers that the right of redemption only stands extinguished on the date of registration of the sale certificate in favour of the purchaser. This point on redemption has been analysed by the Supreme Court of India in its judgment dated 20-8-2019 in Shakeena v. Bank of India[2] wherein it was held that the borrower has a right of redemption only before the time the mortgage is foreclosed or the estate is sold. It was further held that issuance of a sale certificate as per Rule 9(7) of the Rules is a complete and absolute sale for the purpose of SARFAESI and the sale certificate need not be registered, as Section 17(2)(xii) of the Registration Act, 1908 provides that a sale certificate issued by a Civil or Revenue Officer in respect of property sold in a public auction does not require registration. Accordingly, the right to redemption stands obliterated from the date of issuance of the sale certificate as registration of the sale certificate is not mandatory.


Borrowers right to prevent transfer of secured assets

In addition to what is stated hereinabove and as per the amended Section 13(8) of the SARFAESI which has come into force with effect from 1-9-2016,  which amended section states that, where the amount of dues of the secured creditor together with all costs, charges and expenses incurred by the secured creditor are tendered by the borrower to the secured creditor prior to the date of publication of notice for public auction or inviting quotations or tender from public or private treaty for transfer of the secured asset, the secured asset shall not be transferred by the secured creditor. The Supreme Court of India in its judgment dated 10-2-2014 in Mathew Varghese v. M. Amritha Kumar[3] held that by virtue of the provisions of Section 13(8) of the SARFAESI, any sale or transfer of a secured asset cannot take place without duly informing the borrower of the time and date of such sale or transfer in order to enable the borrower to tender the dues of the secured creditor and any such sale or transfer effected without complying with the said statutory requirement would be a constitutional violation and nullify the ultimate sale.



In light of what is stated hereinabove, acquisition of a secured asset under SARFAESI requires the purchaser to do thorough due diligence to ensure there are no outstanding dues and encumbrances affecting the property and to ensure strict compliance of the procedure along with the time periods as stipulated in SARFAESI read with the Rules. The thorough due diligence will enable the purchaser to obtain a clear and marketable title to the secured asset which is free from all encumbrances and by carrying out such due diligence, the purchaser will ultimately be saved from knocking on the doors of the court to enforce its right to the secured asset.


† Partner, Shardul Amarchand Mangaldas

†† Associate, Shardul Amarchand Mangaldas.

[1] 2021 SCC OnLine Bom 222.

[2] 2019 SCC OnLine SC 1059.

[3] (2014) 5 SCC 610.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: The Division Bench of K. Vinod Chandran and M.R.Anitha, JJ., acquitted a woman convicted for matricide and maternal filicide due to failure of investigating officer to examine sanity and mental soundness of the accused. The Bench remarked,

“The mindless killing of an old lady and two minor children that too the mother and daughters of the accused, ought to have cautioned the Investigating Officer and there should have been an enquiry held and the accused subjected to a psychiatric evaluation, immediately after the occurrence.”

Facts of the Case

The issue arose out of the conviction and sentence passed against the accused by the Sessions Court convicting her under Sections 302 and 309 of Penal code and sentencing her to undergo imprisonment for life. The accused had been convicted for intentionally causing death of her mother and two daughters aged 8 and 6 years, by slashing on their neck with knife. Further, she attempted to commit suicide by inflicting a deep cut injury on her neck but survived due to timely medical intervention.  The accused had denied all the incriminating facts and circumstances and stated in addition that she had been a mental patient at the time of incident; as also before and after.

The counsel for the accused had thrust upon the ground of infirmity in the investigation in not conducting an enquiry as to the mental state of the accused in spite of there being evidence to the factum of the accused having been subjected to treatment for mental problems. It was submitted that various aspects highlighted from the evidence gave rise to a reasonable doubt about the mental condition of the accused at the time of occurrence, which would entitle her for benefit of the exception and consequent acquittal.

Matricide and Maternal Filicide

Opining that the records produced lead to an irresistible conclusion that injury sustained to the accused was one arising from a suicidal act, the Bench stated that the evidence adduced in the case eschew any chance of criminal trespass into the house by any other person for commission of the act. Hence, the finding of the Sessions Judge that the accused caused the death of her mother and children and she attempted to commit suicide was perfectly in order. It had been established beyond reasonable doubt that the incident occurred as had been narrated by the prosecution through their witnesses and the accused having committed the dastardly act of fatally injuring her own mother and children, also attempted to kill herself.

Insanity as a General Defense

On a close scrutiny of the evidence adduced, the Bench was of the view that the accused had not discharged the onus of proving the unsoundness of mind at the time of commission of the offence. The Senior Lecturer (ENT) to whom the accused was referred for emergency tracheostomy with neck exploration for repair of the neck injury, immediately after the incident, had advised psychiatric consultation. Evidence of Psychiatric Consultant, certificate and case sheet would prove that accused had undergone treatment for delusional disorder. Family history of psychosis of father, nephews, maternal sister was also brought out through the evidence. The discharge card of the accused would also prove that at the time of first admission diagnosis was schizophrenia. The Bench opined,

“The evidence brought out during trial would prove that she had undergone treatment for delusional disorder before four years of the incident and after one year of the incident she had undergone treatment for schizophrenia. But no evidence is forthcoming about the state of mind of the accused at the crucial point of time, i.e.: at the time of the incident.”

Reiterating that every person who is suffering from mental illness ipso facto is not exempted from criminal liability, the Bench stated, there is distinction between legal insanity and medical insanity and Courts are concerned with legal insanity and not medical insanity.

The nature of the acts also; the mindless killing of an old lady and two minor children that too the mother and daughters of the accused, ought to have cautioned the Investigating Officer and there should have been an enquiry held and the accused subjected to a psychiatric evaluation, immediately after the occurrence. In Devidas Loka Rathode v. State of Maharashtra, (2018) 7 SCC 718 the Supreme Court had set aside the concurrent findings of guilt against the accused under Ss. 302 and 324 of Penal Code, holding that in view of the previous history of insanity of the accused, it was the duty of an honest investigator to subject the accused to a medical examination immediately and place that evidence before the Court and if it is not done, it creates serious infirmity in the prosecution case and benefit of doubt has to be given to the accused. Therefore, the Bench stated,

“Investigation shall not be confined to the acts committed by a person. Depending on facts and circumstances of the case many other relevant facts also have to be investigated in the light of the provisions contained in ‘General Exceptions’. It is only then, an Investigating Officer will be able to confirm whether the act committed by a person is an offence or not as defined in IPC subject to what is contained in ‘General Exceptions’.”

Findings and Decision of the Court

Matricide and maternal filicide followed by an attempt to commit suicide were the offences proved to have been committed by the accused. The Bench opined that normally a lady will not be able to do such gruesome act solitary or at a stretch. The evidence of the doctor, who treated her, would prove that psychiatric consultation was given to her the details of which were not attempted to be brought out in evidence by the Investigating Officer. Proceedings of the Sessions Court would also show that even before framing charge, a memo was filed stating that accused was a mental patient and that she had undergone treatment at Mental Health Centre before trial. Hence, it was very clear that the investigating officer was aware of the psychiatric treatment undergone by the accused before the incident and the psychiatric consultation immediately after the incident while undergoing treatment for throat injuries. Therefore, if the Investigating Officer was fair enough and wanted to bring the true facts before the Court he would have made an enquiry into the aspect of the soundness of the mind of the accused.

“Peculiar nature of the offence of matricide and filicide of two small daughters coupled with the factors brought out during investigation ought to have been taken into account by the Investigating Officer to subject the accused to medical examination immediately after the incident to ascertain the soundness of mind of the accused at the crucial time of the incident.”

And failure to do the same had created serious infirmity in the prosecution case which would entitle the accused to benefit of doubt and consequent acquittal. In other words, the evidence adduced created a reasonable doubt in the mind of the Court about the mens rea of the accused that would enable the accused to benefit of doubt. Accordingly, the conviction and sentence of the accused was set aside. Noticing that the accused had been under confinement for the last ten years and eight months, the Bench directed that she be kept in safe custody as provided under Section 335(1)(a) CrPC r/w Section 103 of Mental Health Care Act, 2017 in a Mental Health Care Establishment. It was also left open to the State to direct the appellant to be delivered to any of her relatives or friends as per Section 339 CrPC or to release her as per Section 338 CrPC.[Lalitha v. State of Kerala, 2021 SCC OnLine Ker 2426, decided on 09-06-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance before the Court by:

For the Appellant: Adv. P.K.Varghese

For the State: Public Prosecutor

For Atrocities against Women & Children & Welfare Of W & C: Adv. Ambika Devi S

Case BriefsSupreme Court

Supreme Court: In a relief to Justice V. Eswaraiah, former judge of Andhra Pradesh High Court, the bench of Ashok Bhushan* and R. Subhash Reddy, JJ found no reason to allow the enquiry by Justice R.V. Raveendran as directed by the Andhra Pradesh High Court.

The case pertains to an alleged phone conversation of Justice Eswaraiah and S. Ramakrishna, a suspended District Munsif Magistrate of Andhra Pradesh, over the conspiracy to malign the reputation of the Andhra Pradesh High Court.

BC SC ST Minority Student Federation, a registered society under the provisions of Societies Registration Act, 1860 has filed a Public Interest Litigation praying for relief relating to following of COVID-19 protocol in the Andhra Pradesh High Court.

It was, however, pleaded by the High Court that the PIL was not a genuine PIL having substantial public interest. Further, it was pleaded that “after retirement Justice V. Eswaraiah had obtained a post retirement office and after achieving the said post retirement office, he wants to support the State Government under the cover of BC association maligning the High Court.”

Later, S. Ramakrishna intervened stating that “the incumbent Government has unleashed a vicious propaganda against the judiciary to cover up its shortcomings, in which some of the retired judges like Justice V. Eswaraiah had become pawns in the hands of the Government and at their instance, under the guise of some organisations some vested interests have been filing writ petitions to undermine the honesty, integrity and majesty of the judiciary.”

It was alleged that, on 20.07.2020, the Personal Secretary of Justice V. Eswaraiah called S. Ramakrishna on his mobile phone on 20.07.2020 and told him that Justice Eswaraiah wished to speak to him and gave his phone number. During the course of conversation, Justice Eswaraiah asked him whether he was aware of the letter submitted by All India Backward Classes Federation dated 29.06.2020. The transcript of the said conversation alongwith audio recording was filed alongwith affidavit for perusal of the Court.

The High Court by impugned judgment dated 13.08.2020 passed an order requesting Justice R.V. Raveendran, a Retired Judge of this Court to hold out an enquiry to find out the genuineness/authenticity of the conversation contained in the pen drive.

In the affidavit, Justice Eswaraiah admitted that S. Ramakrishna called him over the Whatsapp on 20.07.2020. He, however, stated that he cannot say that if the conversation contained in the pen drive is the exact conversation.

“I have provided a corrected transcript of the English translation of the audio tape contained in the pen drive supplied to me, in the SLP paper book as Annexure P16 at pages 134-154. I reiterate, this is the transcription of the audio version of the conversation which Mr. Ramakrishna has filed in the High Court…………..”

Taking note of this aspect, the Supreme Court noticed that the object and purpose of directing the enquiry was to find out the authenticity/genuineness of the conversation contained in the pen drive and the petitioner having filed affidavit and admitted the conversation dated 20.07.2020 and has also filed the corrected transcript of the English translation of the audio tape, which is admitted to him, there is no reason to allow to continue the enquiry by Justice R.V. Raveendran as directed by the High Court by the impugned judgment.

The Court held that the High Court ought not to have embarked on any other enquiry in the matter except to the maintainability of the PIL.

[Justice V. Eswaraiah v. Union of India, 2021 SCC OnLine SC 310, decided on 12.04.2021]

*Judgment by Justice Ashok Bhushan 

For petitioner: Advocate Prashant Bhushan

For Union of India: Solicitor General Tushar Mehta

Case BriefsSupreme Court

Supreme Court of India: The Division Bench comprising of Dhananjaya Y. Chandrachud and M.R. Shah*, JJ., addressed the instant appeal challenging the validity of notice send to the appellant by Anti-corruption Bureau regarding pre-FIR open enquiry against him. The Bench stated,

“…(If) an enquiry is held and/or conducted after following the procedure as per Maharashtra State Anti-corruption & Prohibition Intelligence Bureau Manual, it cannot be said that the same is illegal and/or the police officer, Anti-corruption Bureau has no jurisdiction and/or authority and/or power at all to conduct such an enquiry at pre-registration of FIR stage.”


The background of the instant case relates to various allegations made against the appellant and his brothers with regard to accumulating the assets disproportionate to his known sources of income. Noticeably, the appellant was a Member and President of Municipal Council, Katol, Nagpur. In connection with the said complaint, the Police Inspector, Anti-corruption Bureau, had issued a notice, calling upon the appellant to personally remain present before the investigating officer of the Anti-corruption Bureau to give his statement in an ‘open enquiry’ in respect of the property owned by him along with the information on the points stated in the said notice and further, asking him to provide documents relating to his property, assets, bank statements, income tax returns.

The grievance of the petitioner was that the Police Inspector, Anti-Corruption Bureau, had no power to issue the said notice. It was also submitted that there is no statutory provision which would compel any body to give statement to the police. It was also submitted that there was no FIR against the appellant. Per contra, the respondent authority submitted that the said ‘open enquiry’ was ordered to find out if an offence under Section 13(e) of the Prevention of Corruption Act was disclosed.

Whether such an enquiry at pre-FIR stage would be legal and to what extent such an enquiry is permissible?

In Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 SCC 1, this Court had observed that it is mandatory to register an FIR on receipt of information disclosing a cognizable offence. However, this Court had also considered the situations/cases in which preliminary enquiry is permissible/desirable and certain illustrations were also  carved out in which the preliminary enquiry was held to be permissible/desirable before registering/lodging of an FIR. It was further observed that if the information received did not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary enquiry may be conducted to ascertain whether cognizable offence is disclosed or not. It had been clarified that the scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. Similarly, in P. Sirajuddin v. State of Madras, (1970) 1 SCC 595, this Court expressed the need for a preliminary enquiry before proceeding against public servants.

When a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of indulging into corrupt practice, it does incalculable harm not only to the officer in particular but to the department he belonged to in general. Thus, before lodging FIR against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer to ascertain whether cognizable offence is disclosed or not.

Observing that a fool proof safeguard and procedure is provided under the Maharashtra State Anti-corruption & Prohibition Intelligence Bureau Manual of Instructions 1968, before lodging an FIR/complaint before the Court against the public servant, the Bench disregarded any doubt of irregularity regarding the issuance of impugned notice. Further, the Bench observed that the information sought on the aforesaid points was having a direct connection with the allegations made against the appellant, namely, accumulating assets disproportionate to his known sources of income. Clarifying that such an ‘open enquiry’, should be restricted to facilitate the appellant to clarify regarding his assets and known sources of income, the Bench said the same could not be said to be a fishing or roving enquiry.


Clarifying that the statement of the appellant and the information so received during the course of discrete enquiry should be only for the purpose to satisfy and find out whether an offence under Section 13(1)(e) of the PC Act, 1988 was disclosed. Such a statement cannot be said to be confessional in character, and would be restricted only to ascertain whether a cognizable offence is disclosed or not. The Bench held that such an enquiry would be to safeguard the interest of appellant which may avoid further harassment to him. Hence, the Bench refused to interfere with the impugned judgment and order passed by the High Court of Bombay and dismissed the appeal with the above observations.

[Charansingh v. State of Maharashtra, 2021 SCC OnLine SC 251, decided on 24-03-2021]

Kamini Sharma, Editorial Assistant has put this report together 

*Judgment by: Justice M.R. Shah

Appearance before the Court by:

For the Appellant: Sr. Adv. Subodh Dharmadhikari,

For the Respondent/s: Sr. Adv. Raja Thakare

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: N.Nagaresh J., while allowing the present petition and directing consequential benefits, held, “…it is evident that the 2nd respondent has not made any serious attempt to honestly study the anthropological history of the petitioner. No enquiry worth mentioning was made to find out as to the year of migration of the petitioner’s grandparents from Tamil Nadu to Kerala.”


According to the petitioner, her paternal ancestors belonged to ‘‘Puthirai Vannan’’ community and migrated from Tamil Nadu to Kerala before 1930 and settled at Moongalar Estate, Idukki District. As per the Constitution Scheduled Castes Order, the community Puthirai Vannan is a Scheduled Caste in both the States of Tamil Nadu and Kerala. Document in support of the said averment was dutifully attached. The petitioner’s mother belonged to Nair Community. Father was employed in Harrison Company and was transferred to Wayanad. The family was residing in Wayanad District ever since. The petitioner’s father purchased the property in Wayanad District utilizing funds made available to members of the Scheduled Caste. For the sale deed, stamp duty was exempted since the petitioner’s father belonged to Scheduled Caste. The petitioner has been continuously enjoying the benefits available to the members of the Scheduled Castes since her birth. In the year 2018, the petitioner applied for the Medical Entrance Examination. The Screening Committee suspected veracity of community certificate issued to the petitioner by the Tahsildar and referred the issue to the Vigilance Cell of the Screening Committee. The Screening Committee as per Section 6 of Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996 rejected the Scheduled Caste claim of the petitioner. Invoking Section 6(2) of the Act, 1996, the Screening Committee rejected the application of the petitioner for admission to Professional Degree Courses, 2018. With subsequent petitions being rejected against the aforementioned order of the Screening Committee, the petitioner has approached the present Court.


Whether petitioner’s claim of belonging to a family bearing Scheduled Caste identity justified?

Court observed, “There are sufficient materials to show that the petitioner’s father was admitted in a school in the year 1974 showing that he belongs to Scheduled Caste community. For the last 46 years, the petitioner’s father, the petitioner and her siblings were treated as Scheduled Caste and were extended the benefits available to the community. When the petitioner has produced prima facie materials to show that she belongs to Scheduled Caste as her grandparents migrated to Kerala much before 1950, the respondents cannot brush aside the claim without a proper enquiry and study.”


While allowing the present petition, Court sets aside the impugned orders by the Screening Committee, in addition to granting of consequential benefits.[Anjana C. v. State of Kerala,  2021 SCC OnLine Ker 168, decided on 04-01-2021]

Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of G. Narendar and M.I. Arun JJ., allowing the present petition, discussed the meaning, scope and ambit of the word ‘enquiry’ and provisional application of Section 43-A of the Karnataka Panchayatraj Act, 1993.


A complaint was lodged against the petitioners before Lokayukta, on the ground of misconduct in the discharge of official duties (allowing alleged wrongful construction). The Upalokayukta (3rd Respondent) registered a case and conducted an investigation under Section 9 of the Karnataka Lokayukta Act, 1984. During investigation, the petitioners intimated that the Assistant Executive Engineer of the Public Works Department (PWD) had failed to respond to the panchayat letter dated 03-07-2014 and as it had neither rejected nor granted the NOC, for the proposed construction and as there was an unnecessary and unwarranted delay on the part of the PWD, the council passed a resolution granting the proposal unanimously. Following the said event, the Lokayukta submitted a report under Section 12(3) of the Lokayukta Act and further directed action under Section 48(4) of the Karnataka Panchayatraj Act, 1993. Thereafter, the 2nd respondent passed the impugned order, invoking Section 43-A of the aforementioned Act.


Whether there is compliance with the provisions of Section 43-A(1) of the Karnataka Panchayatraj Act, 1993 in the process of passing the impugned order, thereby removing the petitioners not only from their respective offices but also from the membership of the Gram Panchayath?

Relevant Provisions of the Karnataka Panchayatraj Act, 1993

  • Section 48 Resignation or removal of Adhyaksha and Upadhyaksha; ss.4: Every Adhyaksha and Upadhyaksha of Grama Panchayat shall, after an opportunity is afforded for hearing him, and if necessary after obtaining a report from the Taluk Panchayat and considering the same be removable from his office as Adhyaksha or Upadhyaksha by the Government for being persistently remiss or guilty of misconduct in the discharge of his duties and an Adhyaksha or Upadhyaksha so removed who does not cease to be a member under sub-section (2) shall not be eligible for re-election as Adhyaksha or Upadhyaksha during the remaining term of office as member of such Grama Panchayat.
  • Section 43A Removal of members for misconduct: The Government if it thinks fit, on the recommendation of the Grama Panchayat, or otherwise, may remove any member after giving him an opportunity of being heard and after such enquiry as it deems necessary if such member has been guilty of misconduct in the discharge of his duties or of any disgraceful conduct or has become incapable of performing his duties as a member.


The Court reproduced the relevant provision of the Karnataka Panchayatraj Act, 1993 and placed reliance on M.N. Dasanna v. State of Andhra Pradesh, (1973) 2 SCC 378, for understanding the meaning of the word ‘enquiry’.

Further, under Para 12, the Court cited the meaning of the word ‘Enquire’ and ‘Enquiry’ as defined in the book ‘The Law Lexicon with Maxims’ by Sumeet Malik,

Enquire – To enquire or inquire means to make investigation, i.e., to examine systematically in detail and it can never mean that conclusions of investigation would have any binding force or be conclusive,

Enquiry – Covers the hearing of the case, i.e., recording evidence, admitting documents and generally completing the record upon which a finding would be based. It is only after all the material has been placed on the record by both the sides that the stage of reporting a finding would arise.

The Court, continued to say, “It can be gainfully stated that the word ‘enquiry’ as occurring in the Section clearly implies an investigation by the Government and a concomitant to such an enquiry is furnishing of material upon the Government and an opportunity to rebut or test the veracity of the material put against or the persons acted against, and thereafter, the provision visualizes an opportunity of being heard which necessarily implies an opportunity of hearing to the parties to present their summation on the merits of the material relied upon and merits of the case. Further, the powers vested in the Government can be invoked only on proof of certain charge as enumerated under clause (i) to (v) of the Section 43-A of the Panchayatraj Act, 1993.” Enumerating the said charges briefly, in addition to considering the order directing removal, the Court observed, “The impugned order fails to state as to which ground has been proved enabling the competent authority to pass the order of removal and punishment under sub section (2) of Section 43-A of the Karnataka Panchayatraj Act.”

Dismissing the entire enquiry, the Court remarked that “(…) no enquiry worth its name has been conducted as the enquiry stood terminated on the first and only date of hearing itself. It does not reflect as to whether relied upon materials were furnished to the petitioners or as to whether the authors of statements were tendered for cross-examination to test the veracity of their statements.”


Allowing the present petition, the Court said, “When the law provides a thing to be done in a particular manner, the authorities shall perform the act in that manner only. The use of the word ‘enquiry’ is not superfluous. It has been used conjunctively with the phrase ‘opportunity of being heard’ … what is envisaged by the provision cannot be treated as a summary enquiry by the competent authority and an enquiry and opportunity of hearing are mandatory.”

[Bhavani v. State of Karnataka, 2020 SCC OnLine Kar 2011, decided on 08-12-2020]

Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Rajiv Sahai Endlaw and Asha Menon, JJ., observed that:

It is impossible not to notice all around us, how easily the “common woman” is put down by the “common man”. Less said the better of what happens to the Third Gender!

Appellant had filed the instant appeal on being aggrieved with the Single Judge’s decision.

Bench noted that the inquiry into the complaint of sexual harassment filed by the appellant against the respondent 3/O.P. Verma was conducted before the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

Petitioner was working as an Assistant Director with the ESI Hospital, Manesar, Gurgaon. Respondent 3 was posted as Deputy Director in the same hospital.

Appellant had complained that he was repeatedly subjecting her to sexual harassment by using inappropriate language with sexual overtones.

Further, the appellant submitted that she was distributing housekeeping material among the nursing staff at the ESI Hospital when respondent 3 told her to accompany him to male toilet using words that were indicative of sexual advances. Due to the said incident, the appellant felt deeply humiliated.

 Respondent 3 had commented on appellant’s dressing as well where he stated that if another button of her shirt were to open what would be the result that would follow.

On yet another occasion, when the appellant commented to other Staff that Saturdays should be a half-day as there was less work and during the rest of the time they were only playing hide and seek, the respondent 3/O.P.Verma remarked that neither had he caught the appellant nor had the appellant caught him.

The above incidents caused great anguish to the appellant.

In light of the above incident, a complaints committee was duly constituted. The Committee granted the benefit of doubt to respondent 3 and further recommended that both the officers, be relocated with immediate effect.

According to the appellant, this decision was not communicated to her and it was only on 3-07-2013 in response to an RTI query that she learnt of the decision. She filed an appeal but was also not again communicated the result of that appeal.

In the meanwhile, respondent 3/O.P. Verma retired. She, therefore, filed the writ petition challenging the recommendation of 20-01-2012.

Appellant had questioned the transfer by means of the writ petition filed by her and had also sought an independent internal departmental inquiry against the respondent 3/O.P.Verma as well as directions for criminal prosecution against him instead of the transfer. The question that presents itself is whether such relief could be granted or not.

Bench stated that since the respondent retired 5 years back it does not considers it expedient to grant such relief to the appellant of directing an independent departmental inquiry against him.

Court observed that with regard to the criminal prosecution, nothing prevented the appellant from initiating any such action against the respondent 3/O.P.Verma since the date of the incident or even since the date of the report of the Complaints Committee. Appellant did not seek such a relief from the Internal Complaints Committee even after the Act came into force in 2013.

Before parting with the instant order, the Court found it necessary to underline that:

Sexual Harassment is a serious issue that needs to be addressed at all work places urgently and sensitively.

Women are entitled to a congenial and dignified environment to live their life fully and attain their full potentiality.

With regard to Gender Conditioning, Court noted that

Gender conditioning where the man develops a superiority complex, while the woman doubts her own capacity, starts very early in life. It need not be in the form of a tutorial, but certainly as subtle data to the minds of young children, about their privileges or lack of it.

Every institution and organization must declare zero tolerance for Gender insensitivity.

In the instant case, the appellant did not know about the appropriate authority before whom to file her initial complaint.

When asked by it as to why she had lodged the complaint directly to the headquarters, she answered that she did not know the address of the ‘Woman Cell’ at the ESI Hospital and had made an enquiry from Manju Swaminathan and submitted her complaint to the Complaints Committee.

Bench also added to its observation that it cannot be overlooked that the Internal Complaints Committee is intended as a platform to provide an environment of confidence to the complainant.

Absence of eyewitnesses to the incident cannot detract from the credibility of the complainant as her statement is to be considered independently to determine whether it has a ring of truth or not.

Gender Sensitization

Gender sensitivity requires an understanding of what a woman feels when she is sexually harassed.

Though stereotyping is itself unwarranted, it has been noticed that just as in other sexual offences, a woman goes through a lot of soul-searching (again due to gender-conditioning), she tries to adopt measures of self-protection, by avoiding the perpetrator, may be even by taking leave!

Importance of Internal Complaints Committee

Internal Complaints Committee has to be set up in every workplace and every woman employee informed as to the person she can contact in the Internal Complaints Committee when faced with any unsavoury or unacceptable conduct by a male colleague.

The high standard of proof required in criminal trials is not called for during an inquiry by the Internal Complaints Committee under the Act.

There can be no insistence on production of witnesses by the complainant to corroborate her statement.

It is not enough to merely constitute Internal Complaints Committees, but it is also important that the purpose for having such a Committee and in fact for making such a law must always remain uppermost in the minds of all at the workplace.

Hence, Bench reiterated that all employers are required to sensitize all employers who work in the organization to deal with a woman, whether a colleague or a visitor or a beneficiary of services provided to the public, always remaining acutely aware of her dignity.

When a person speaks, the words have an impact and the speaker must be conscious of such impact when speaking to a woman whether from the public or a colleague.

Appeal in view of the above discussion was allowed.[X v. Union of India,  2020 SCC OnLine Del 1618, decided on 17-12-2020]

Advocates who appeared before the Court:

Advocate for the Appellant: Kamna Vohra

Advocates for the Respondents: Anil Dabas, Advocate for R-1. Yakesh Anand, Advocate for R-2,4 &5 ESIC

Case BriefsHigh Courts

Bombay High Court: A Full Bench of Dipankar Datta, CJ and R.K. Deshpande and Sunil B. Shukre, JJ., answered the question referred by the Division Bench of this Court with regard to, “Whether a convict who has challenged his conviction under Section 374 of the Code of Criminal Procedure, 1973 is entitled to the benefit of Section 436 A of the Code?”

Court answered in negative and held that the benefit under Section 436-A of the Code of Criminal Procedure is only for the undertrial prisoners.

Bench has been asked to answer a question referred by the Division Bench of this Court in a criminal application wherein applicant sought bail under Section 436-A of Code of Criminal Procedure.

Background of the Case

In 2016, the applicant was convicted for the offences punishable under Sections 506-II, 450, 326, 452, 354-A read with Sections 34, 149, 109 and 114 of the Penal Code, 1860 and also under Section 66E of the Information Technology Act, 2000.

The application was rejected by the Division Bench of this Court by its order passed on 18-11-2016.

On two occasions, the applicant failed to get any reprieve.

Now, the applicant has again renewed his effort to secure his release on bail during the pendency of the appeal, this time on a new ground he sees as available to him in Section 436-A of the Code.

Applicant relies upon Pradip v. State of Maharashtra, 2019 SCC Online Bom 9768 and Mudassir Hussain v. State, 2020 SCC Online J&K 381, and also a few more Judgments.

Question framed by the Division Bench is as under:

“Whether a convict who has challenged his conviction under Section 374 of the Code of Criminal Procedure, 1973 is entitled to the benefit of Section 436 A of the Code?”

Applicant’s Counsel, R.K. Tiwari submitted that the provision of Section 436-A of the Code is beneficial in nature and therefore it deserves liberal interpretation.

If the provision is liberally constructed, it would bring big relief to the convicts whose appeals filed under Section 374 of the Code are pending for final disposal for long years.

Additional Public Prosecutor, T.A. Mirza submitted that language of Section 436-A of the Code is clear and unequivocal admitting of no two interpretations and therefore the rule of liberal construction has no application here.

Decision and Analysis

The situation which went into the birth of Section 436-A was of undertrial prisoners, the primary concern being of their incarceration in jail for a long period of time pending investigation, inquiry or trial, even though the presumption of innocence till found guilty was operating in their favour.

By introducing Section 436-A to the Code, an endeavor was made to remedy the condition of torture and misery of accused persons as undertrial prisoners, relegated to dark corners within jails, away from the hustle and bustle of life activity without jails.

Liberal Construction

The benefit intended to be given by Section 436-A CrPC is for a person who has, during the period of investigation, inquiry or trial under the Code of an offence not being an offence for which capital punishment has been prescribed as one of the punishments, undergone detention for a period extending up to one half of the maximum period of imprisonment specified for that offence under that law.

Benefit under the section has been intended to be given only to the undertrial prisoners.

Sunil B. Shukre, J., answered in negative to the referred question, further stated,

“To be specific, we answer the question in terms that a convict who has challenged his conviction under Section 374 of the Code, is not entitled to the benefit of Section 436-A of the Code.”

R.K. Deshpande, J., while in agreement with the above-stated conclusion opined that there is no absolute right to get released, conferred upon the undertrial prisoner upon fulfillment of the conditions specified under Sectio 436-A CrPC.

An accused completing the period specified under Section 436-A on the date of filing of appeal may not apply under Section 389 of the Code for suspension of sentence and grant of bail, but he can claim the release from detention even without suspension of sentence.

Therefore, to agree with the contention that the accused remain an undertrial prisoner during the pendency of the appeal and the Appellate Court is competent to exercise the power under Section 436-A of the Code.

Dipankar Datta, C.J., while agreeing with the view of learned brothersDeshpande and Shukre, JJ. stated that,

Section 436-A refers to the maximum period of imprisonment specified for the offence in question, and not to the period of imprisonment actually imposed.

Chief Justice opined that Section 436-A CrPC is restricted in its operation to grant bail to an undertrial prisoner ‘during the period of investigation, inquiry or trial’ and does not, ex proprio vigore, apply at the appellate stage.

Thus, CJ concurred with the prima facie view of the Division Bench as well as the opinion of learned brother Deshpande and Shukre, JJ.

“Spirit of Section 436-A, CrPC could be considered by an appellate court while it is seized of an application under Section 389, CrPC and, drawing inspiration from the principle ingrained in the former, to suspend execution of the sentence bearing in mind all relevant factors including the time likely to be taken for disposal of the appeal.”

Therefore, Bench held that since the Division Bench has rejected the applicant’s prayer for suspension of execution of sentence for the third time, it is highly unlikely that any further prayer in the instant matter shall be considered favourably. [Maksud Sheikh Gaffur Sheikh v. State of Maharashtra, 2020 SCC OnLine Bom 878, decided on 28-08-2020]

Case BriefsHigh Courts

Andhra Pradesh High Court: A Division Bench of M. Satyanarayana Murthy and Lalitha Kanneganti, JJ., ordered an enquiry into a conversation contained in pen-drive disclosing some material about designing a plot against the Chief Justice of Andhra Pradesh and another sitting Judge of the Supreme Court.

Court stated that,

“Unfortunately, today it is an unpleasant or gloomy day in the history of High Court of Andhra Pradesh, because the High court itself has to ward-off the brazen onslaught from the third parties to demean the prestige of the pristine judicial institution in the eye of litigant public.”

Audio conversation contained in the pen drive disclosed that it was a serious conspiracy against the Chief Justice of Andhra Pradesh High Court by designing a plot and sent a petition by the person who had a conversation with a person named S. Ramakrishna allegedly, but signed by Secretary of BC/SC/ST Association.

The said person insisted on Sri S. Ramakrishna to collect material against another senior most sitting Judge of the Supreme Court to mar his future career.

Bench stated that since the plot is designed against the Chief Justice of Andhra Pradesh High Court with malafide intention unless the authenticity of the contents is established, Court cannot proceed against anyone.

Further, the Court observed that the way as to how the conversation between the two persons took place, would prima facie establish that there was a conspiracy against the Chief Justice of Andhra Pradesh and Senior-most Judge of Supreme Court, pernicious acts of the person who made such allegation to be discouraged. Otherwise, the public may lose faith in the Courts.

Conversation discloses use of intemperate language against two senior most sitting Judges of the Supreme Court and it is a matter of serious concern.

Such conversation will certinly crumble the confidence of the public on Courts and system itself.

Further, the Court added that in the judicial process, it is the solemn duty of the Court to unravel the truth. In the present matter, only way to unravel the truth is to order necessary enquiry.

Truth should be the Guiding Star in the entire judicial process.

Hence, Court found the present case to be appropriate for ordering enquiry to find out the authenticity of the conversation contained in the pen-drive.

Therefore, Justice Raveendran, retired Judge of the Supreme Court of India is requested to hold an enquiry to find out the authenticity of the conversation, with regard to the plot designed against the Chief Justice of Andhra Pradesh and being designed against senior most sitting Judges of the Supreme Court and undisclosed interest of the third parties.

Director of CBI and Director of Intelligence Bureau are directed to depute responsible officers of the department to collect information from the agencies pertaining to the conversation contained in the pen-drive and other material collected from the Registry and submit the same to Justice R.V. Raveendran, retired Judge of Supreme Court of India.

Matter to be listed in 4 weeks.[BC, SC, ST Minority Student Federation v. Union Of India, 2020 SCC OnLine AP 652, decided on 13-08-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Z.A. Haq and M.G. Giratkar, JJ., partly allowed a criminal writ petition filed against the alleged illegal and high-handed action by the Police Inspector and Police Constable (respondents).

The matter related to 2013-2014 when disputes arose about the trusteeship of Shri Mirannath Maharaj Deosthan, Deoli. There was a dispute about whether Petitioner 1 was the Secretary of the Executive Committee of the public trust. FIRs were filed against the petitioners. However, after enquiry, the police authorities found that no cognizable offences were made out against the petitioners. But surprisingly, on 5-2-2014, action under Section 151 (1) CrPC (arrest to prevent the commission of cognizable offences) was taken against the petitioners and they were detained at the police station. They were later released on the orders of the Executive Magistrate. The petitioners claimed to be reputed citizens. They alleged that their detention was totally illegal and a result of abuse of power by the Police Inspector and Constable.

On behalf of the Police Inspector and Constable, it was submitted that the said action became necessary under Section 151 (1) CrPC as FIRs had been lodged against the petitioners. The High Court was of the opinion that this justification was misleading and was an attempt to cover up the illegal act.

The Court observed: “The police officer may take action as per Section 151 (1) of the Code of Criminal Procedure against a person, only if he has knowledge of a design of commissioning of any cognizable offence, or if it appears to him that commission of cognizable offence cannot be prevented unless preventive action is taken against the person who may commit cognizable offence.”

It was further stated: “Knowledge to the police officer of a design to commit any cognizable offence and formation of opinion by the concerned police officer that commission of cognizable offence cannot be prevented unless preventive action is taken against the proposed offender is sine qua non for taking preventive action as per Section 151 (1) of the Code of Criminal Procedure. Depriving a person of his liberty guaranteed by Article 21 of the Constitution of India cannot be left to the whims and wishes of the police officer, and if it is permitted it would be conferring arbitrary and unbridled powers on the police officers/authorities.”

The High Court held that the petitioners had suffered due to the illegal and high handed actions of the Police Inspector and, therefore, ordered him to pay a compensation of Rs 1 lakh each to the two petitioners, in addition to the costs of Rs 10,000 each payable to the petitioners. However, petitioners’ prayer for directing the State to conduct enquiry against the Police Inspector and Constable was rejected. [Kishor v. State of Maharashtra, 2019 SCC OnLine Bom 6639, decided on 17-12-2019]

Case BriefsHigh Courts

Allahabad High Court: Dr Y.K. Srivastava, J. while dismissing the petition observed that the assertion made by the petitioner that the proceedings were without notice or opportunity to him is contrary to the material on record.

In the instant petition, it was sought to challenge an order of the Additional Collector (Land Revenue) in proceedings under Section 28 of the U.P. Land Revenue Act, 1901 and challenge the order of the Additional Commissioner (1st) whereby the revision was also rejected for the same.

Counsel for the petitioner, Rajesh Kushwaha submitted that powers under Section 28 of the 1901 Act are to be exercised by the Collector and that the impugned order was passed in violation of the principles of natural justice.

Counsel for the fourth respondent, R.N. Yadav and Standing Counsel, Prakash Singh pointed out that in terms of the provisions under the above-mentioned Act, the expression “Collector” would include “Additional Collector” also. It was further submitted that there was no violation of principles of natural justice as an enquiry report was sought from the Naib Tehsildar and thereafter notice was issued to the petitioner whereupon the petitioner duly filed his objections but did not appear later on.

In view of the above and to analyse the primary submission made by the petitioner, the Court observed that the provision with regard to appointment of Additional Collector was brought in by insertion of Section 14-A whereunder the State Government is empowered to appoint an Additional Collector in a district or in two or more districts combined who shall exercise such powers and discharge such duties of a Collector in such case or classes of cases as the Collector concerned may direct.

The Court also cited the Full Bench decision of this Court in the case of Brahm Singh v. Board of Revenue, 2008 SCC OnLine All 490, where it was held that the Additional Collector when he acts and discharges the duties and functions or exercises such powers of a Collector either under the 1901 Act or under any other Act for the time being in force, the powers would be deemed to have been exercised by him as Collector of the district under that Act. [Seetla v. State of U.P., 2019 SCC OnLine All 4784, decided on 05-12-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: G. S. Ahluwalia, J., allowed a petition and directed the respondents to not take any coercive step against the petitioner unless and until an enquiry is conducted under Section 89 of M.P. Panchayat Raj Awam Gram Swaraj, Adhiniyam, 1993.

 The petitioner has filed the instant petition under Article 226 of the Constitution of India has against the order passed under Section 92 of the M.P. Panchayat Raj Awam Gram Swaraj, Adhiniyam, 1993. The facts of the case are that a show-cause notice was issued to the petitioners under Section 92 of the Adhiniyam for recovery of Rs 2,70,000. The show-cause notice was duly replied by the petitioners, however, without conducting any enquiry, the impugned order was passed.

Counsel for the petitioner submitted that the respondents have already taken a final decision, which is bad because the provision of Section 92 of Adhiniyam, is merely an execution provision, and unless and until an enquiry is conducted under Section 89 of Adhiniyam, no action can be taken against the petitioners.

Counsel for the State stated that the impugned order is not a final order, but it is merely a show-cause notice and no action under Section 92 of Adhiniyam would be taken unless and until an enquiry is conducted under Section 89 of Adhiniyam.

In view of the above, the court relying upon the decision in Kadam Singh v. CEO, 2019(1) MPLJ 420, directed that the respondents shall not affect any recovery or shall not take any coercive step against the petitioners, unless and until an enquiry is conducted under Section 89 of Adhiniyam. Further, the Court has also directed the respondents to initiate an enquiry under Section 89 of Adhiniyam and decide the same within a period of six months in accordance with the law. [Kamla Yadav v. State of M.P., 2019 SCC OnLine MP 3090, decided on 22-10-2019]

Case BriefsHigh Courts

Rajasthan High Court: Arun Bhansali, J. dismissed a writ petition filed by the petitioners against an order passed by Rajasthan Non-Government Educational Institution Tribunal, Jaipur (the Tribunal).

In the instant case, during the pendency of a charge sheet leveling four charges against the respondent, the petitioners passed a resolution inter alia compulsorily retiring the respondent under the provisions of Section 16 (1) of the Rajasthan Non-Government Education Institutions Act, 1989. Aggrieved thereby, the respondent approached the Tribunal by filing an appeal which was allowed. In its impugned judgment, the Tribunal quashed the order of compulsory retirement passed by the petitioners holding it illegal. It also ordered for reinstatement of the respondent with all the consequential reliefs including salary and other benefits. Aggrieved thereby, the petitioners filed the instant writ petition assailing the order of the Tribunal.

The learned counsel for the petitioners, Dr Nupur Bhati and Abhishek Mehta, contended that the Tribunal was not justified in passing the impugned order as, “the burden was on the respondent to prove that he was unemployed from the date of his compulsory retirement till reinstatement, which was not proved.”

The Court observed that “the petitioners were bent upon relieving the respondent from service and, therefore, applied the procedure of compulsory retirement, which was not justified.”  Reliance was placed on the judgment in State of Gujarat v. Umedbhai M. Patel, (2001) 3 SCC 314, where certain principles regarding compulsory retirement were laid down. The Court observed that the petitioners acted contrary to those principles, and held that “from the material which came on record, it was apparent that the order of compulsory retirement was passed as a shortcut to avoid departmental enquiry which was already pending and the same was imposed as a punitive measure by the petitioners and in those circumstances the order was clearly contrary to principles (vi) & (viii) above, the findings of the Tribunal qua the wrongful exercise of power of compulsory retirement cannot be faulted.”

Regarding justification of consequential reliefs, it was held that “..during the intervening period as a temporary employee got engagement with some institution cannot be a reason for the petitioners to deny the payment of back salary and other benefits once it is found that their action was against the law and the order of compulsory retirement was passed only with an intention to ease out the respondent from employment during pendency of enquiry.”

In the view of the above, the Court dismissed the petition holding that the same was devoid of substance.[Chopasni Shiksha Samiti v. Gajendra Singh, 2019 SCC OnLine Raj 430, Order dated 09-05-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: This petition was filed before the Bench of Arun Monga, J.

A circular was issued, whereby the Disciplinary Authority was empowered to appoint any member of the CRPF below the rank of ‘Assistant Commandant’ as Presenting Officer to present the case on behalf of the Disciplinary Authority before the Inquiry Officer in the departmental proceedings. In this petition, the petitioner prayed that no Presenting Officer was appointed, at the relevant time, when the inquiry was conducted against him. Petitioner referred to a Supreme Court case Union of India v. Ram Lakhan Sharma, (2018) 7 SCC 670 and submitted that the inquiry conducted against petitioner was vitiated on account of the Inquiry Officer himself having assumed the role of Presenting Officer and, therefore, the inquiry report and subsequent proceedings pursuant thereto could not be judicially scrutinised. Whereas the respondent relied on the same case to submit that in the judgment relied upon, the Supreme Court had given liberty to respondents to proceed afresh.

High Court was of the view that in the instant matter the same liberty to proceed with enquiry afresh cannot be given as the petitioner had retired and thus benefit of the illegality committed by the respondents should be given to the employee. Therefore, this writ petition was allowed and inquiry report and orders passed by the disciplinary authority were set aside. [Bajinder Singh v. Union of India, 2019 SCC OnLine P&H 405, decided on 11-04-2019]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: The Division Bench of V. Chitambaresh and R. Narayana Pisharadi, JJ. dismissed an appeal filed against the order of District Judge refusing to entertain a petition challenging arbitral award.

Appellant was a guarantor to the loan availed of by a company named Anugraha Wood Products Limited from the respondent company. Upon non-payment of the loan by ‘Anugraha’, arbitration clause of the loan agreement was invoked and arbitrator passed an award regarding recovery of the loan amount from the appellant. The said award was challenged by the appellant in a District Court at Thiruvananthapuram under Section 34 of the Arbitration and Conciliation Act, 1996. Learned District Judge dismissed this petition on the ground of maintainability. Aggrieved thereby, the instant appeal was filed.

The contention of the appellant was that since he permanently resides at Thiruvananthapuram, therefore, the District Court at Thiruvananthapuram had territorial jurisdiction to entertain his petition.

The Court noted that the arbitration clause in the loan agreement was worded as: “The Arbitrator shall hold the enquiry at Udupi only. However, the Arbitrator may change the place of enquiry if he desires so.” Thus, it was evident that the seat of arbitration was at Udupi. Even the entire arbitration proceedings were conducted at Udupi.

Appellant’s contention was dismissed holding that once the seat of arbitration is designated, it is akin to an exclusive jurisdiction clause. Reliance in this regard was placed on the Apex Court’s decision in Indus Mobile Distribution (P) Ltd. v. Datawind Innovations (P) Ltd., (2017) 7 SCC 678. It was concluded that the Court concerned at Udupi alone had territorial jurisdiction to entertain the application filed by the appellant under Section 34 of the Act. [S. Balu v. ICDS Ltd., 2019 SCC OnLine Ker 502, Order dated 08-02-2019]

Case BriefsForeign Courts

High Court of South Africa, Western Cape Division:  This appeal was filed before a 2-Judge Bench comprising of J I Cloete and M K Parker, JJ., against the order of Magistrate where appellant was convicted and sentenced without following the relevant provision.

Facts of the case were that the appellant was charged for contravening Section 65(2) (a) read with Section 89 (1) and (2) of the NRTA for drinking and driving. It is pertinent to note that appellant was convicted in 2010 for similar offence but under Section 65(1) (a). Court then ordered the suspension of the order of imprisonment of 4 months till 4 years during which he ought not to be found guilty of the same offence. In terms of the agreement, the appellant pleaded guilty of the charges against him. Appellant had submitted mitigating factors such as his fixed job, sole breadwinner of the family, under debt and had been convicted for a similar offence. Magistrate enquired under Section 35 of the National Road Traffic Act, 1996 as a consequence of which his driving licence was suspended.

The issue before the Court was to see if an agreement formed according to Section 105-A of the Criminal Procedure Act, 1977 regarding the suspension of accused driving licence for a period of time without any enquiry by Court under Section 35 was required to be dispensed with.

Appellant contended that the magistrate was misdirected when he unilaterally altered the terms of plea and sentence agreement related to the period of suspension without informing the parties of proceedings of his intention to do the same based on the finding in the case of  State v. DJ, 2016 (1) SACR 377 (SCA).  The above contention led to the question of whether the magistrate could have done so.

High Court agreed with the findings of the case of S v. Lourens, 2016 (2) SACR 624 (WCC) and accordingly observed that enquiry under Section 35 was an important part so as to determine the sentence. Magistrate erred in concluding above provision as a post-sentence procedure and he should have followed Section 105-A (9). Therefore, appellant’s conviction and sentence ought to be set aside and the matter was remitted back to District Court Mitchells Plain for trial de novo before another magistrate. [Micheal Muller v. State, 2018 SCC OnLine ZAWCHC 2, dated 16-11-2018]


Case BriefsForeign Courts

South Africa High Court, Western Cape Division: Two matters came for review before a 2-Judge Bench comprising of DM Thulare AJ; MJ Dolamo J, where the proceedings were held considering the accused as major but they were found to be minor.

One of the accused pleaded guilty and thereby he was convicted under Section 112(1)(a) of the Criminal Procedures Act, 1977. While mitigation of sentences were being held it was brought before the court that the accused was minor as a consequence of which he was released and the matter was postponed for the determination of the correct age of the accused.  The second accused was found guilty and accordingly sentenced where his age was not determined.

The High Court viewed that terminology used in Section 12, 13 and 14 in Part 3 of Chapter 2 of the Child Justice Act, 2008 were not interpreted and applied in the best interests of children. Court with respect to Section 12 observed that police officer after arrest should have treated a youngster as child unless there were other reasons to the contrary. Further, Section 14 states that where the age of accused is uncertain, it is for the presiding officer to hold enquiry to determine same.  It was found that the presiding officer before whom the accused first appeared failed to determine the age of accused. Finding the Magistrate to be correct who said that the wrong determination of date caused prejudice to the accused conviction was liable to be set aside. Therefore, Court ordered the conviction of first accused and sentence on second accused to be set aside and the matter was remitted back to the magistrate for sentencing under Chapter 10 of Child Justice Act, 2008. [State v. B O, 2018 SCC OnLine ZAWCHC 3, dated 02-11-2018]

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu & Kashmir High Court: A Single Judge Bench of Sanjeev Kumar, J., allowed a writ petition filed against the order of respondent authorities, whereby petitioner was placed under suspension without there being any misconduct on petitioner’s part.

The main issue that arose before the Court was whether the actions of respondents were justified with regard to the suspension of the petitioner.

The Court observed that the respondents communicated the order of suspension to the petitioner after a year of issuance of that order. The respondents had not initiated enquiry into the matter of petitioner, nor the petitioner had been charge-sheeted even after 2 years of his order of suspension was passed. The prolongation of suspension period beyond two years can only be viewed as punitive which is not sustainable in law. The Court referred to the judgment passed in the case of Ghulam Mohammad Mir v. State, 2017 (II) SLJ, 1996, wherein it was held that the suspension of an employee is resorted to only to facilitate unhindered and fair inquiry into alleged misconduct committed by such employee but if such suspension is unnecessarily prolonged and object for which it was resorted to, is not achieved and no inquiry into conduct of such employee is initiated with reasonable dispatch, the order of suspension would become punitive and susceptible to challenge, being violative of Article 14 and 16 of the Constitution of India.

The Court held that the as per the principles laid down in Ghulam Mohammad’s case, the actions of the respondent authorities cannot be held justified. The respondents ought to have initiated a proper inquiry into the matter within a reasonable time. Resultantly, the Court allowed the writ petition and quashed the order of respondents. [Babu Ram Sharma v. State,2018 SCC OnLine J&K 777, order dated 24-10-2018]

Case BriefsHigh Courts

Calcutta High Court: A Single Judge Bench comprising of Dr Sambuddha Chakrabarti, J. held an alleged contemnor guilty for not complying with its order.

The alleged contemnor was the erstwhile Pradhan of the village in which the subject land was located. A land dispute arose between the petitioners and the respondents. Pursuant to its adjudication of the matter, the High Court directed the alleged contemnor to cause an enquiry in the matter including physical inspection of the plots in question. The order was communicated to the respondent on 16 March 2016. However, the said order was not complied till date. Consequently, the instant contempt proceedings were undertaken.

The alleged contemnor submitted that due to some wrong understanding, he could not comply with the direction of the Court. The High Court observed that the order was passed in the simplest language possible. If the alleged contemnor had any difficulty in comprehending the contents of the order, he could have mentioned the matter for clarification. Furthermore, at Paragraph 6 of his affidavit, the alleged contemnor submitted that he was intimated by Panchayat Office that the parties have settled the matter amicably. The Court was of the view that when the Court directed the alleged contemnor to do a certain thing in a certain manner he was  required to act in terms of the said order and if he had any information that the dispute had been settled, even then he had no excuse for not complying with the Court’s direction. It was held that non-compliance of the Court’s order could not be allowed to go absolutely without any consequence. It appeared from the alleged contemnor’s reply that he did not take any serious effort to comply with the Court’s order for reasons best known to him. If the Court decided to be a bystander to the disobedience of its order without taking appropriate remedial steps, the majesty and dignity of the Court’s order shall very fast be lost relevance. Holding thus, the alleged contemnor was found guilty for contempt of Court and sentenced him undergo seven days simple imprisonment along with a fine of Rs 2000. [Haran Laskar v. Nikhil Baidya,2018 SCC OnLine Cal 7676, decided on 03-10-2018]

Patna High Court
Case BriefsHigh Courts

Patna High Court: A Division Bench comprising of Mukesh R. Shah, CJ. and Ashutosh Kumar, J. while hearing a petition seeking mandamus against State for implementing organic farming policy, observed that efforts on the same were underway and dismissed the petition holding that the nature of petitioner’s prayers were that of a roving enquiry.

The instant public interest petition had been filed seeking a mandamus directing the respondent to encourage farmers of the State to opt for organic farming in order to save productivity of the earth and environment. Further, the petitioner also sought the details of the expenditure incurred for encouraging organic farming in the State as well as of the allocated subsidy amount for organic farming disbursed in various financial years since 2007-08.

The court noted that the averments in writ petition admitted that the State Government had taken a policy decision of encouraging farmers for undertaking organic farming, and for the aforesaid purpose, budgetary limits had been fixed and subsidies had been offered. The petitioners had not raised any allegation of siphoning of funds or embezzlement of public money. Thus, the prayers made in the writ petition were more in the nature of fishing and roving enquiry from the respondents, which is impermissible in public interest litigation.

The respondent’s submission before the court was that even though organic farming, being a labour-intensive exercise, is much more expensive owing to production cost being higher and less yield being produced per hectare; but still the State was using budgetary allocation to make the farmers aware of the advantages of using/ manufacturing vermi-compost and green manure. Setting up of gobar gas units was being encouraged by providing subsidy to the entrepreneurs for the said purpose.

Further, the State also submitted list programmes which had been initiated and the budgetary allocation as well as expenses incurred on “Organic Corridor Scheme” project launched in the year 2017-18. As a part of first phase, organic corridors had been developed in villages adjoining National/State highways running by the side of Ganga river. The process for certification of fields after elimination of chemical residue was afoot. Lastly, the State submitted that it was planning to implement the scheme at a larger scale by 2022; and the entire process of converting agricultural operations to organic method being a long drawn process, it would take a while before the results are visible.

Having regard to the detailed submissions made by the State and vague prayers in the petition, the High Court observed that the State was making efforts to achieve the objective of organic farming by 2022 and expecting results in such a short time would be chimerical. On that observation, the writ petition was dismissed. [Bihar Rajya Kishan Sabha v State of Bihar,2018 SCC OnLine Pat 1808, decided on 09-10-2018]