Case BriefsHigh Courts

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

The facts of the case are such that the respondents were Malgujars of Malkharauda Jagirdari, who were holders of the land in question and the petitioners are the persons in possession of the land in question on the ground of grant or purchase or by sikhmi rights or by a registered sale deed. Proceeding was drawn against the respondents under the M.P. Ceiling of Agriculture Holdings Act, 1960 (i.e. “Act, 1960”). The petitioners filed their objections which came to be dismissed by the Sub-Divisional Officer (Revenue) vesting the disputed land with the State Government. Subsequent to that the petitioners and the various villagers made representation before the Sub-Divisional Officer, Sakti, for allotment of land from the government. The applications of some of the villagers were entertained and lease was granted in favour of some of the villagers, but the case of the petitioners was not considered. The petitioners then preferred an appeal before the Board of Revenue and Additional Tahsildar, Malkharauda submitted report making recommendations in favour of the petitioners for grant of government land on lease. The Board of Revenue has dismissed the appeal only on the ground of limitation. Being aggrieved by the said order instant petition was filed.

Counsel for the petitioners Mr Rajeev Shrivastava submitted that the order passed by the Board of Revenue is cryptic order, by taking technical approach, without considering that the petitioners have been prosecuted their claim since the very beginning by raising their objections. Hence, the order passed is erroneous without any justification.

Counsel for the respondents Mr Adil Minhaj submitted that the appeal was clearly delayed by two years, before it was filed in the Board of Revenue, regarding which, day to day explanation was required and there had been no such explanation given by the petitioners’ side. Hence, the impugned order has been correctly passed, which needs no interference.

The Court relied on Oriental Aroma Chemical Industries Ltd. v. Gujrat Industrial Development Corpn., (2010) 5 SCC 459 wherein it was held “law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties, but to ensure that they do not resort to dilatory tactics and seek remedy without delay, therefore, the expression sufficient cause must receive a liberal construction so as to advance substantial justice.”

The Court further relied on State of Karnataka v. Y. Moideen Kunhi (dead) by LRS., (2009) 13 SCC 192 wherein it was held that “the Court must not be pedantic in deciding delay condonation petition, which should not be dismissed on mere ground of longer delay, if the, explanation offered is bonafide.”

The Court observed that Section 44 of the Act, 1960 provides for limitation of 60 days from the order against which appeal or revision is to be preferred. It is further provided that the provisions of Section 4, 5, 12 and 14 of the Indian Limitation Act shall also apply to the filing of such appeal or application for revision. It was further observed that Section 5 of the Indian Limitation Act provides for extension of prescribed period, in certain cases, where in, the applicant satisfies the Court that he had sufficient cause for not preferring the appeal within the prescribed period.

It was further observed that that the petitioners have a claim for allotment of surplus land vested with the State in ceiling proceeding, in their favour on the basis of their entitlement and that despite there being recommendation in their favour, the same was not considered by the Sub-Divisional Officer and also the reasons for delay mentioned in their memo of appeal and application for condonation of delay, which appears to be bonafide.

The Court thus held that “learned Board of Revenue has failed to exercise the jurisdiction and dismissed the application for condonation of delay of the petitioners in mechanical and arbitrary manner.” 

In view of the above, petition was allowed.[Rajendra Kumar v. State of Chhattisgarh, 2021 SCC OnLine Chh 445, decided on 03-03-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Vipin Sanghi and Rajnish Bhatnagar, JJ., in regard to Triple Talaq observed that,

Prima facie it appears that the object of Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 is to discourage the age-old and traditional practice of pronouncement of talaq by a Muslim husband upon his wife by resort to talaq-e-biddat.

Issues in the instant petition have been pending for consideration before the Supreme Court in WP (C) No. 994 of 2019.

In view of the above, Bench stated that since the matter is pending before the Supreme Court, hence it would wait for the judgment of the Supreme Court.

Petitioners Counsel, Tarun Chandiok and Naseem Ahmed had moved the present application with the prayer that pending the consideration of the petition, all FIRs registered under Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 be stayed.

Substantial Question of Law

Further, it added to its submissions that the minimum number of Judges who should sit for the purpose of deciding any case involving substantial question of law as to the interpretation of the constitution, or for the purpose of hearing any reference under Article 143 should be five.

Bench rejected the above-stated submission stating that there is no provision either in the Constitution or in any other law which required this Court to place the matter before a Larger Bench at this stage.

Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019

Bench noted that the present petition is not in the nature of a Public Interest Litigation. Hence Court denied invoking Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019.

Section 3 of the Muslim Women (Protection of Rights on Marriage) Act, 2019

Petitioner also submitted that Section 3 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 declares the practice of triple talaq as popularly known, to be void and illegal.

What does the said provision state:

“any pronouncement of talaq by a Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal”. Section 2(c) defines talaq to mean “talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband”.

Triple Talaq

Petitioner’s Counsel also added to its submissions that once triple talaq has been rendered void and illegal, there is no justification for criminalizing pronouncement of triple talaq, since such triple talaq would have no legal effect on the status of the Muslim Marriage.

Since it is of no consequence and does not end the marital status of the wife – who may be subjected to triple talaq, there is no purpose of penalising the said Act. Section 4 of the said Act provides “any Muslim husband who pronounces talaq referred to in Section 3 upon his wife shall be punished with imprisonment for a term which may extend to 3 years and shall also be liable to fine.”

Counsel relied on the decisions of the Supreme Court in Shayara Bano v. Union of India, (2017) 9 SCC 1 and Behram Khurshid Pesikaka v. State of Bombay, (1955) 1 SCR 613.

Bench held that,

“Legislation is presumed to be valid, unless it is declared to be invalid, or unconstitutional by a Competent Court, and is struck down.”

Court observed that the prima facie it appears that the object of Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 is to discourage the age-old and traditional practice of pronouncement of talaq by a Muslim husband upon his wife by resort to talaq-e-biddat i.e. triple talaq.

Purpose of Section 4 appears to provide a deterrent against such practice.

Merely because triple talaq has been declared to be void and illegal, it does not mean that the legislature could not have made the continuation of such practice an offence.

High Court in view of the above discussion, did not grant any interim relief. [Nadeem Khan v. Union of India, 2020 SCC OnLine Del 1336, decided on 13-10-2020]

Case BriefsHigh Courts

Kerala High Court: A Division Bench of S. Manikumar and Shaji P. Chaly, JJ., while deciding the Constitutional validity of the Kerala State Commission for the Scheduled Castes and the Scheduled Tribes Act, 2007, dismissed the writ petition making significant observations.

Brief Facts

Aggrieved by the inaction on the part of the respondents in honouring a claim made by the petitioner for reimbursement of travel allowances which he had to incur in connection with the hearings before the State Scheduled Castes/Scheduled Tribes Commission at Thiruvananthapuram, instant writ petition for the issuance of mandamus has been filed against the State Government, Kerala. Further, the petitioner seeks to issue a similar relief against the Subordinate Courts so to implement speedy trial provided under Section 14 of the Atrocities Act by taking up the Atrocity cases and related matters immediately after the custody and bail cases. Furthermore, the writ petition seeks to declare the Kerala State Commission for the Scheduled Castes and the Scheduled Tribes Act, 2007 and the rules framed thereunder as unconstitutional on the ground of inconsistency and repugnancy with the Central Act. 

Issue

  1. Whether the State Government can form rules departing from central rules and thereby, deny rights conferred by the Central Government?
  2. Whether the State Government can disobey the rules framed by the Central Government for the benefit of the Scheduled Castes and Scheduled Tribes and decline to make provisions in the budgets thereby causing hardship to the poor people?
  3. Whether the subordinate courts can violate the law to the disadvantage of the Scheduled Castes and Scheduled Tribes by denying speedy trial though provided in Section 14 of the Act?

Contentions

The counsel for the petitioners made a submission on the following grounds;

  1. That the Central Act and the rules framed thereunder are binding on the State Government and it is, therefore, obligatory for them to act in consonance of the same.
  2. That the rules framed by the State Government do not fall under Rule 11, 12 or 15 of the Scheduled Tribes (Prevention of Atrocities) Rules, 1995, as prescribed by the Central Government.
  3. That the State Government has failed to comply with the directive laid down under Rule 14, which mandates the State to allocate a certain sum in the Annual State budget for the SC/ST community.
  4. That the State is incompetent to make any law or enumerate any rule on the said subject, following which, the Kerala State SC/ST Commission Act, 2007 and the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 are liable to be declared as unconstitutional. The petitioners further cited, Barai v. Henry, (1983) 1 SCC 177 and Thirumuruga Hirupananda Variar v. State of Tamil Nadu, (1996) 3 SCC 15.
  5. That the District Magistrates and other similar officers callously neglected the duties prescribed for providing facilities and for making payments under the Schedule and the rules.
  6. That the lower courts do not implement speedy trials, as provided under Section 14 of the SC/ST (Prevention of Atrocities) Act, 1989, thereby causing hardship to the victims and witnesses, etc.

The counsel for the respondents submitted as follows;

  1. That the petitioner has filed complaints before the Kerala State SC/ST Commission seeking Travel Allowance(TA)/Dearance Allowance(DA) claims, including hotel bill, room rent, etc. for payment.
  2. That as per the Kerala State Commission for the Scheduled Castes and scheduled tribes Act, 2007 and the rules framed thereunder, there is no provision for paying TA or DA to the victims and witnesses who appear before the Commission, for the purpose of enquiry into the complaints. The Commission has no such fund to consider the claim.
  3. That the Commission is empowered to conduct an enquiry into cases where there are allegations of a miscarriage of justice during investigation and hence, the SC/ST complainants, who register complaints/petition before the State Commission, are not entitled to get TA/DA, when they appear before the Commission under any of the provisions of the Kerala State Commission for Scheduled Castes and Scheduled Tribes Act, 2007 and the rules framed thereunder.
  4. Cases under sections 3(1) and 3(2) of Prevention of Atrocities Act are registered in Police Stations and Special Cells are constituted for that purpose. Further, as mentioned in the SC/ST (Prevention of Atrocities) Rules, 1995, the District Magistrate, Sub Divisional Magistrate or other Executive Magistrate is the authority, liable for payment of such allowances to the victims of atrocity/dependent in the matter of investigation and trial.
  5. That even though the Kerala State Commission for Scheduled Castes and the Scheduled Tribes has the powers of a civil court, with regard to its function under Section 9, Rule 11 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995, is not applicable to the Commission.
  6. That Four Special Courts for the trial of offences under the SC/ST (POA) Act cases, have been established at Manjeri, Mananthavady (Kalpetta), Kottarakkara (Kollam) and Mannarkkad (Palakkad). The work turn-out in the four Special Courts for the trial of offences under SC/ST(POA) Act cases are being monitored on a monthly basis by the Judges holding the administrative charges of the respective districts and necessary directions and guidelines are being issued for the speedy trial and disposal of those cases.

Observations

The bench made significant observations with respect to State’s competency to legislate in presence of a central law on the same subject, separation of powers and mutual interaction between the three organs in a democratic setup and instances where the Commission is obligated to make reimbursements. It cited several case laws and observations with respect to the above enumerated hereby;

1. Bhim Singh v. Union of India, (2010) 5 SCC 538;

“While observing that the Constitution does not strictly prohibit overlapping of functions as this is inevitable in the modern parliamentary democracy, the Constitution prohibits exercise of functions of another branch which results in wresting away of the regime of constitutional accountability. Only when accountability is preserved, there will be no violation of principle of separation of powers. Constitution not only requires and mandates that there should be right decisions that govern us, but equal care has to be taken that the right decisions are made by the right body and the institution. This is what gives legitimacy, be it legislation, a policy decision or a court adjudication.”

2.  V.K. Naswa v. Home Secretary, Union of India, (2012) 11 SCC 42;

“It is outside the power of judicial review to issue directions to the legislature to enact a law in a particular manner, for the Constitution does not permit the courts to direct and advice the executive in matters of policy. Parliament, as the legislature, exercises this power to enact a law and no outside authority can issue a particular piece of legislation. It is only in exceptional cases where there is a vacuum and non-existing position that the judiciary, in exercise of its constitutional power, steps in and provides a solution till the legislature comes forward to perform its role.”  [Also refer; Manoj Narula v. UOI, (2014) 9 SCC 1 and Supreme Court Employee Welfare Assn. v. UOI, (1989) 4 SCC 187]

 3. Regina (Countryside Alliance) v. Attorney General, (2008) 1 AC 719;

 “…The democratic process is liable to be subverted if, on a question of moral and political judgment, opponents of the Act achieve through the courts what they could not achieve in Parliament.”

4.State of Himachal Pradesh v. Satpal Saini, (2017) 11 SCC 42;

“Reference was made to Supreme Court Employees’ Welfare Association, (1989) 4 SCC 187, that no writ of mandamus can be issued to the legislature to enact a particular legislation nor can such direction be issued to the executive which exercises the powers to make Rules in the nature of subordinate legislation.”

With respect to instances where the State Government is liable to reimburse the expenses incurred by the complainant, the Court highlighted the following points;

  1. Every victim of atrocity or his/her dependent and witnesses shall be paid expense from his place of residence to the place of investigation or trial of offence under the Act.
  2. The District Magistrate or any other Executive Magistrate shall make necessary arrangements for providing transport facilities or reimbursement of full payment to the victims of atrocity and witnesses for visiting the investigating officer, Superintendent of Police/Deputy Superintendent of Police, District Magistrate or any other Executive Magistrate.
  3. Every woman witness, the victim of atrocity or her dependent being a woman or a minor, a person more than sixty years of age and a person having 40 % or more disability shall be entitled to be accompanied by an attendant of her/his choice. The attendant shall also be paid traveling and maintenance expenses as applicable to the witness or the victim of atrocity when called upon during hearing, investigation and trial of an offence under the Act.
  4. The witness, the victim of atrocity or his/her dependent and the attendant shall be paid daily maintenance for the days he/she is away from the place of his/her residence or stay during investigation, hearing and trial of an offence, at such rates but not less than the minimum wages, as may be fixed by the State Government for the agricultural labourers.
  5. In addition to daily maintenance expenses, the witness, the victim of atrocity (or his/her dependent), and the attendant shall also be paid diet expenses at such rates, as may be fixed by the State Government from time to time.
  6. The payment of traveling allowance, daily allowance, maintenance expenses and reimbursement of transport facilities shall be made immediately or not later than three days by the District Magistrate or the Sub-Divisional Magistrate or any other Executive Magistrate to the victims, their dependents/attendant and witnesses for the days they visit the investigating officer or in-charge police station or hospital authorities or Superintendent of Police, Deputy Superintendent of Police or District Magistrate or any other officer concerned or the Special Court.
  7. When an offence has been committed under Section 3 of the Act, the District Magistrate or the Sub-Divisional Magistrate or any other Executive Magistrate shall reimburse the payment of medicines, special medical consultation, blood transfusion, replacement of essential clothing, meals and fruits provided to the victim of atrocity.

 Decision

While upholding the Constitutional validity of the State Act, the bench observed: “neither the Commission nor the State Government, is obligated to create a specific fund for reimbursement of the expenses, incurred by the complainant/witnesses for their appearance, in relation to inquiry and examination of a complaint by the Commission constituted under Section 3 of the Kerala State Commission for the Scheduled Castes and the Scheduled Tribes Act, 2007, and such fund is required to be created by the State Government, only in the case of investigation or trial.”

It was further said that, the submissions made by the petitioner are not sustainable and cannot be countenanced, as there is no derogation or inconsistency between the Central and the State Rules. [M.P. Chothy v. State of Kerala, 2020 SCC OnLine Ker 4254, decided on 29-09-2020]

Case BriefsHigh Courts

Delhi High Court: Jyoti Singh, J., while addressing the maintainability and legality of a petition filed under Section 482 of Criminal Procedure Code, 1973 held that, legislature in its wisdom has provided for Appeal under Section 29 of the Protection of Women from Domestic Violence Act, 2005 against all “orders” and has not made any exception to orders relating to custody.

Petition was filed seeking setting aside of the Order passed in complaint under the Protection of Women from Domestic Violence Act, 2005 by the Metropolitan Magistrate.

Due to a rift in the relationship of the husband and wife, respondent took away the three children to live with him under a separate roof.

Protection Order & Custody Orders

By way of the present petition, petitioner sought reliefs such as Protection Order under Section 18 of the Protection of Women from Domestic Violence Act, 2005.

Wife sought a restraining order against the respondent from dispossessing the wife from the shared household and monetary reliefs such as medical expenses and rentals including household expenses.

In line of reliefs, Custody Order with respect to the three children were also sought under Section 21 of the Act. Application for various interim reliefs was also sought under Section 23 of the Act.

Unhindered Access to Mother

Court noted that for the sake of emotional quotient and robust psychological health, the mother should be provided unhindered access, if not physically then through video conferencing and the same was granted on 24th April, 2020.

Magistrates’ Decision

Custody of children was directed to be continued with the father as an interim measure visitation rights were granted the wife.

Petition not maintainable

Respondent’s counsel, Bobby Anand submitted that petitioner has a remedy of an appeal under Section 29 of the Act, hence the present petition is not maintainable under Section 482 CrPC.

Advocate Malvika Rajkotia, for the wife submitted that, a mother is best suited to look after the needs of growing daughters, particularly, the sensitivities of their emotional needs and biological requirements.

She also submits that youngest daughter is under 5 years of age and it is a mandate under Section 6 of the Hindu Minority and Guardianship Act, 1956 that the child should be in care and custody of the mother.

Present Petition is maintainable in this Court as mere availability of alternate remedy cannot be a ground to disentitle the relief under Section 482 CrPC.

Analysis and Decision

Maintainability

Supreme Court has time and again spelt out clear restraints on the use of extraordinary powers and observed that the High courts should not go beyond those wholesome inhibitions unless the extraordinary circumstances cry for immediate and timely judicial mandate.

In the present matter, Court is not persuaded in to entertain the petition in its extraordinary power under Section 482 CrPC given the fact that there is a clear remedy of Appeal under Section 29 of the Act available.

Hence, facts and circumstances in the present matter do not call for any urgent intervention to permit the petitioner in bypassing the remedy available in the form of Statutory Appeal.

in view of the above, petition was dismissed.[Srisha Dinav Bansal v. Rajiv Bansal, 2020 SCC OnLine Del 764, decided on 20-07-2020]

Case BriefsHigh Courts

Calcutta High Court: Sabyasachi Bhattacharya, J. directed a case concerning the arrest of a freelance journalist to be listed for hearing in January, 2020 and also directed the respondents to file their affidavit(s)-in-opposition withe thin a fortnight from date. It also directed the concerned government officials to preserve and secure the entire CCTV footage of the Khardah police station of the concerned date.

In the present case, the appellant a spokesperson for the opposition party is a journalist who runs two vernacular newspapers and YouTube channels. It is alleged by the petitioner that he was forcibly whisked away by the police on 17-10-2019. When asked, the police replied that he had been arrested for a cyber crime case in Purulia District Cyber Crime Police Station. The petitioner contended that due to his exposure to corruption in political quarters, he has earned the wrath of the ruling party and therefore his arrest is on baseless allegations.

The counsel appearing for the petitioner argued that under the sections he was booked the police cannot initiate an investigation on their own, until an order of a competent Magistrate. Placing reliance on the Arnesh Kumar v. State of Bihar(2014) 8 SCC 273 it was contended by the petitioner that in the said judgment it was remarked by the Supreme Court that a notice of appearance in terms of Section 41A of the Code of Criminal Procedure, 1973 has to be served on the accused within two weeks but he was not served the same. The counsel then contended that as an interim measure it should be stayed on.

The counsels for the respondent State argued that the investigation is still at a nascent stage and ought not to be stayed at this premature juncture. It was argued that there were several safeguards available to the petitioner under the CrPC, all of which provide sufficient relief to the petitioner even at the stage of further investigation.

The Court opined that it is not clear at all as to how the criticism of the State Government or a Member of Parliament could be deemed to be the publication of a statement likely to cause fear or alarm to the public at all. The court continued that the people always have a right to criticize the Government or the Executive and even the Judiciary and the Legislature are not exempt from fair criticism. That is what the freedom of speech and expression, as enshrined in the Constitution, is all about, the Court continued. 

In this regard, the Court also observed that “there is a common misconception of identifying the ‘State’ with the ‘Government’. This may be a fallout of the failure of the Indian polity to implement the Constitutional vision as to separation of powers between the three wings of the Government, in particular among the Legislature and the Executive.”

The Court remarked that these allegations were baseless on the face of it and were not even maintainable against the petitioner in the context of the petitioner’s actions, on the basis of which such offences were alleged. But since counsel for both sides advanced detailed arguments even on the prayer for interim protection, the court listed this case for the month of January, and directed that the said complaint and the FIR shall remain stayed till disposal of the writ petition. [Sanmay Banerjee v. State of West Bengal, 2019 SCC OnLine Cal 3941, decided on 03-12-2019]

Case BriefsHigh Courts

Madras High Court: A Division Bench of A.P. Sahi, CJ and Subramonium Prasad, J., while deciding a petition filed in regard to declaring Section 142(2) of the Negotiable Instruments Act, 1881 as ultra vires Article 14 of Constitution, held by placing reliance on certain cases that,

“Parliament is competent to bring out the amendment under the Negotiable Instruments Act. The said amendment cannot be said to be ultra vires in view of the provisions of the Act or Part III of the Constitution of India.”

In the present petition, the challenge was placed upon Section 142(2) of NI Act on the ground that the said amendment is contrary to the Supreme Court case in, Dashrath Rupsingh Rathod v. State of Maharashtra, (2014) 9 SCC 129.

Counsel for the petitioner, K. Govindarajan, submitted that the above-said amendment amounts to setting at naught a judgment of the Supreme Court which is not permissible in law. Relying on the Supreme Court case in Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, (1969) 2 SCC 283, it is well settled that,

“Legislation can take away the basis of a judgment.”

In Dashrath Rupsingh Rathod v. State of Maharashtra, (2014) 9 SCC 129, following was held with respect to the place of suing:

“…Once the cause of action accrues to the complainant, the jurisdiction of the Court to try the case will be determined by reference to the place where the cheque is dishonoured.

   (vii) The general rule stipulated under Section 177 of Cr.P.C applies to cases under Section 138 of the Negotiable Instruments Act. Prosecution in such cases can, therefore, be launched against the drawer of the cheque only before the Court within whose jurisdiction the dishonour takes place except in situations where the offence of dishonour of the cheque punishable under Section 138 is committed along with other offences in a single transaction within the meaning of Section 220(1) read with Section 184 of the Code of Criminal Procedure or is covered by the provisions of Section 182(1) read with Sections 184 and 220 thereof.”

Thus, the following was held in the above-said case by the Supreme Court,

a Complaint of dishonour of cheque can be filed only to the Court within whose local jurisdiction where the cheque is dishonoured by the bank on which it is drawn.

To resolve the concerns arising from the above-judgment, through the Negotiable Instruments (Amendment) Act, 2015, certain amendments in regard to challenged Section was made as follows:

“(2) The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction,—

(a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or

(b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated.

Explanation— For the purposes of clause (a), where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account.”

Further Section 142(a) was also inserted through the Amendment Act, which is as follows:

142A.(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any judgment, decree, order or direction of any court, all cases transferred to the court having jurisdiction under sub-section (2) of section 142, as amended by the Negotiable Instruments

(Amendment) Ordinance, 2015, shall be deemed to have been transferred under this Act, as if that subsection had been in force at all material times.

 (2) Notwithstanding anything contained in sub-section (2) of section 142 or sub-section (1), where the payee or the holder in due course, as the case may be, has filed a complaint against the drawer of a cheque in the court having jurisdiction under sub-section (2) of section 142 or the case has been transferred to that court under sub-section (1) and such complaint is pending in that court, all subsequent complaints arising out of section 138 against the same drawer shall be filed before the same court irrespective of whether those cheques were delivered for collection or presented for payment within the territorial jurisdiction of that court.

 (3) If, on the date of the commencement of the Negotiable Instruments (Amendment) Act,

2015, more than one prosecution filed by the same payee or holder in due course, as the case may be, against the same drawer of cheques is pending before different courts, upon the said fact having been brought to the notice of the court, such court shall transfer the case to the court having jurisdiction under sub-section (2) of section 142, as amended by the Negotiable Instruments (Amendment) Ordinance, 2015, before which the first case was filed and is pending, as if that subsection had been in force at all material times.”

Through the above Amendment Act, entire basis of the Supreme Court case in, Dashrath Rupsingh Rathod v. State of Maharashtra, (2014) 9 SCC 129, was removed.

By placing reliance on certain Supreme Court cases such as, State of Karnataka v. Karnataka Pawn Brokers Assn., (2018) 6 SCC 363; State of Karnataka v. Pro Lab, (2015) 8 SCC 557, Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, (1969) 2 SCC 283, following was laid down:

 “Legislature can take away the basis of the judgment of a judicial pronouncement by either Validating Act or passing amendments to the parent Act.”

Thus, on perusal of the above, no infirmity was found by the Court in the amendment. Therefore, said amendment cannot be said to be ultra vires in view of the provisions of the Act or Part III of the Constitution of India.

In view of the above, the writ petition stands dismissed. [Refex Energy Ltd. v. Union of India, 2019 SCC OnLine Mad 9941, decided on 18-12-2019]


Additional Reading:

Case BriefsSupreme Court

Supreme Court: Stating that the High Courts cannot encroach upon the fields that are under the exclusive domain of legislature, the Court said that there cannot be general comments on the investigation or for that matter, issuance of host of directions for constituting separate specialized cadre managed by officials or to require an affidavit to be filed whether sanctioned strength of police is adequate or not to maintain law and order or involvement of judicial officers or directions in the like manner.

In the present case, a writ of mandamous commanding the competent authorities to take necessary action against the respondent was filed before the Allahabad High Court in relation to alleged fraud in opening bank account by forging signature for obtaining retail licence for liquor shop for which eligibility conditions is that licensee and his family members must possess good moral character and have no criminal background, the High Court had adverted to the methods of investigation and expressed the view that no attempt was made by the investigating officer to find out the genuineness of signature from the hand-writing expert and had further observed that it depicts a very sorry state of affairs of maintenance of law and order in the State and paints a grim picture in which State is functioning, ignoring one of the most important aspects of administration, i.e., public safety, security and maintenance of law and order.

The bench of Dipak Misra and Amitava Roy, JJ noted that the High Court has crossed the boundaries of the controversy that was before it. The courts are required to exercise the power of judicial review regard being had to the controversy before it. There may be a laudable object in the mind but it must flow from the facts before it or there has to be a specific litigation before it.  It was further explained that a Judge should not perceive a situation in a generalised manner. He ought not to wear a pair of spectacles so that he can see what he intends to see. There has to be a set of facts to express an opinion and that too, within the parameters of law. A court cannot take steps for framing a policy.

Hence, it was held that the directions issued by the High Court and the queries made by it related to various spheres which, we are constrained to think, the High Court should not have gone into. It had a very limited lis before it. The directions may definitely show some anxiety on the part of the learned Judges, but it is to be remembered that directions are not issued solely out of concern. They have to be founded on certain legally justifiable principles that have roots in the laws of the country. [State of Uttar Pradesh v. Subhash Chandra Jaiswal, 2016 SCC OnLine SC 1434, decided on 29.11.2016]