Case BriefsHigh Courts

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

A petition was filed for quashing an FIR under Section 25 of the Arms Act, 1959 registered at IGI Airport, Delhi.

Submission of petitioner’s counsel was that he was a Non-Resident Indian (NRI) and travelling from Delhi to Dubai when two live ammunitions were detected in his check-in-baggage. It was found that he had a valid licence.

Prosecution alleged that he was not in conscious possession of the cartridges.

Analysis, Law and Decision


High Court cited the decisions of this Court in Davinder Singh Dhindsa v. State (NCT of Delhi), 2019 SCC OnLine Del 7895, Jasbir Chahal v. State, 2018 SCC OnLine Del 8839 and Dhanwant Kaur v. State, 2016 SCC OnLine Del 5492, where 1 or 2 live cartridges have been found in the possession of the accused, have taken a view that mens rea or mala fide intention must be present supporting a “conscious possession plea” of the prosecution and in the absence of any such evidence, even prima facie, there would be no reason to deny the relief to the petitioner.

Bench found a valid arms licence in the possession of the petitioner and the bullets recovered were relatable to the licensed weapon.

No prima facie evidence was found that he had any mala fide intent in keeping the ammunition and the safety of the passengers was not threatened. The possession was not conscious.

In view of the above discussion, the petition was allowed and FIR under Section 25 of the Arms Act, 1959 along with other proceedings emanating therefrom was quashed. [Karamjit Singh v. State (NCT of Delhi), 2022 SCC OnLine Del 800, decided on 22-3-2022]


Advocates before the Court:

For the Petitioner: Ajay Pal Tushir, Advocate

For the Respondent: Avi Singh, ASC with Karan Dhalla and Mizba, Advocates for State with SI Ramesh Chand, PS IGI Airport

Case BriefsDistrict Court

Delhi Consumer Disputes Redressal Commission: The Division Bench of Justice Sangita Dhingra Sehgal (President) and Anil Srivastava (Member) addresses a builder-buyer dispute wherein refund in view of delayed possession along with incomplete internal development work was provided to the buyer.

Instant complaint was filed against Parasvnath Developer Ltd.

Crux of the Complaint

Whether the complainant is entitled to the refund of the amount deposited with interest?

Possession of the plot land booked by the complainant was not handed over within the time agreed to despite the complainant has made the payment to the extent sought from time to time.

Factual Matrix

OPs had promised that the internal development works of the colony will be completed within 24 months from the date of signing of the Agreement with a grace period of 6 months in case of force measure. Once the said work would be completed, OPs had assured to give the possession.

Complainants had opted for a Special Payment Plan floated by the OPs where 10% of the total sale consideration is payable at the time of booking of the Plot. The Complainant had also agreed to pay another 15% of the amount within 45 days from the date of booking and the last instalment would be payable by the Complainant at the time the possession is offered. Agreement to this effect was executed between the parties on 03-09-2013.

The plot possession was to be given by 3-09-2015. Further, it was stated that in case of delay in handing over the possession of the Plot beyond the agreed period of 24 months, the OPs would be under an obligation to pay the complainant’s compensation @Rs 10 per sq. Yard of the Plot area per month for the period of delay.

Further, it was submitted that OPs with malafide intentions not to pay the delay charges, issued possession letter to the complainants after a delay of 11 months of scheduled date of possession without completing the internal services as agreed to.

OPs vide the possession letter illegally demanded the balance consideration price.

Complainant made several attempts to settle the score, but all the attempts and efforts were futile due to which the complaint before this Commission had to be filed.

In view of the facts and circumstances of the case, Bench opined that possession of plot not having been handed over within the agreed time, ends of justice would be met if a direction was issued to the OPs to refund the principal amount with simple interest at the rate of 6%.[Alka Pundir v. Parasvnath Developers Ltd., Complaint No. 941 of 2017, decided on 15-07-2021]


Advocates before the Commission:

Ms Suman Tripathy, Counsel for the complainant

Mr Rakesh Bhardwaj, Counsel for the OPs

Case BriefsHigh Courts

Allahabad High Court: While deciding an application for quashing the charge sheet, Om Prakash-VII, J., disposed of the same finding it difficult to conclude that the offences levelled against the applicant are not made out.

The present application has been filed by the applicant pleading the Court for quashing the charge sheet as well as the entire proceedings in Case No.160 of 2020 in connection with the FIR registered for offence punishable under Section 380 of the Indian Penal Code (IPC) pending before the Addl. Chief Judicial Magistrate, Saidpur, Ghazipur. The applicant has also requested for a stay on any further proceedings in the aforesaid case.

Counsel for the applicant, Shashank Kumar has submitted that the applicant has been falsely implicated in the said case and that the charge sheet has been submitted on the basis of insufficient evidence. It is also contended that the present prosecution has been instituted with malafide intention.

Counsel for the respondent has vehemently objected to the present application and the relief sought.

Upon careful perusal of the facts, circumstances and arguments advanced by both the parties, the Court observed that all the submissions made by the applicant are directed towards the disputed questions of fact which cannot be adjudicated by the Court under section 482 of the Criminal Procedure Code, 1973.

With respect to the question of law, there is a well-settled position of law through a string of judgments delivered by the Supreme Court in the cases of R.P. Kapur v. State of Punjab, AIR 1960 SC 866, State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, State of Bihar v. P. P. Sharma, 1992 Supp (1) SCC 222 and Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq, (2005) 1 SCC 122. The materials on record are sufficient to help in arriving at the conclusion that it cannot be said that the offences levelled against the applicant are not made out.

Later counsel for the applicant prayed for expeditious disposal of the applicant’s bail application.

In view of the above, the Court disposed the application with the direction that in case applicant surrenders before the Court below and applies for bail within two months from the date of present order, the same shall be considered and decided in view of the settled law. For a period of two months, no coercive action shall be taken against the applicant.[Ram Milan Yadav v. State of U.P., Application u/s 482 No. 13647 of 2020, decided on 28-09-2020]


Yashvardhan Shrivastav, Editorial Assistant has put this story together

Himachal Pradesh High Court
Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench of Tarlok Singh Chauhan and Jyotsna Rewal Dua JJ. disposed off the petition directing the State Government to transfer all the stakeholders in the present case in order to deliver equitable justice.

The factual background of the case involves a transfer order issued by State Government to an English Lecturer in Government Senior Secondary School (GSSS), Sanjauli. Aggrieved by the same, she filed the instant petition to quash the said order.

Counsel for the petitioner Ram Murti Bisht submitted that the transfer is malafide as the same has been done to accommodate and adjust private Respondent 3 at her position who was transferred at GSSS Theog on her own written request made 6 months back and now demanded to be posted back at GSSS Sanjauli dislodging the petitioner.

Counsel Ashok Sharma, Ranjan, Vinod Thakur, Svaneel Jaswal and Vinod Chauhan represented the respondent’s side. They cited medical reasons for doing the same and submitted that the transfer is done on compassionate grounds.

The Court discussed the term “malafide” in detail citing various judgments important being B. Varadha Rao v. State of Karnataka, (1986) 4 SCC 131, Shilpi Bose v. State of Bihar 1991 Supp (2) SCC 659 and Rajendra Roy v. Union of India (1993) 1 SCC 148 and observed that the test for a malafide transfer is to check whether the transfer was done for real administrative exigency or not. The Court applying the test and the fact that no real proof of medical grounds being the reason for transfer has been shown and that the respondent has on its own asked for transfer to Theog and after a short stay of 6 months wants to be transferred back to Sanjauli. The act clearly shows no real administrative exigency but exercise of external influence to get transfer done.

The Court relied on a judgment titled New India Public School v. Huda, (1996) 5 SCC 510 and held that the concept of reasonableness and non-arbitrariness pervades the entire constitutional spectrum and is a golden thread which runs through the whole fabric of the Constitution. Thus, Article 14 read with Article 16(1) of the Constitution accords right to equality or an equal treatment consistent with principles of natural justice. Therefore, any law made or action taken by the employer, corporate statutory or instrumentality under Article 12 must act fairly and reasonably.

The Court further observed that the Central Government, State Governments and likewise all public sector undertakings are expected to function like a model employer’.

A ‘model employer’ is under an obligation to conduct itself with high probity and is duty-bound to treat its employees equally and in appropriate manner so that the employees are not condemned to feel totally subservient to the situation. A model employer should not exploit the employees and take advantage of their helpless and misery.

 The Court observed that both the petitioner and the third respondent hold a State Cadre Post, yet they have never been posted outside the district and has rather served in and around Shimla within a radius of 35 kms – 45 kms in their entire service career which is not possible without the active support of external influence.

The Court citing an age-old adage “Hard cases make bad law” held that the act of transfer is malafide as it has been made in order to adjust the third respondent with no reasonable basis but even found the case of petitioner to not be justified entirely and hence directed the State to transfer both outside of the home district.

In view of the above, petition stands disposed off.[Sheela Suryavanshi v. State of H.P., 2020 SCC OnLine HP 1295, decided on 26-08-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Sunil B. Shukre and Madhav J. Jamdar, JJ., dismissed the criminal application filed with regard to quashing of an FIR registered for an offence punishable under Section 376(2) (n) [Punishment for Rape] of Penal Code, 1860.

Background

Applicant had exclusively expressed his love for respondent 2 seduced her into having a sexual relationship with him and did have sexual intercourse on many occasions. The affair that was going clandestinely between applicant and respondent 2 got exposed when one Sheikh Biram who as described by respondent 2 is her servant saw what was going on between applicant and respondent 2. He later threatened to disclose the same to the mother of respondent 2, and when the same happened applicant gave an express promise of marriage to respondent 2 but did not fulfil the same.

Applicant’s counsel M. Badar, submitted that in such matters Court should take the allegations at their face value and without adding anything thereto or subtracting anything therefrom, should consider if the allegations disclose the commission of any offence by the accused. Further, he relied on the Supreme Court’s decision in Dhruvaram Murlidhar Sonar v. State of Maharashtra, 2018 SCC OnLine SC 3100.

Further, the Counsel adds that, there was no promise of marriage given by the applicant to the respondent at any point of time and hence no question of any breach of promise. He states that whatever happened was consensual in nature.

If allegations made by respondent 2 against the applicant are considered at their face value, a prima facie impression is created that respondent 2 agreed to have sexual relation with the applicant only upon her believing as love expressed by the applicant for respondent 2 to be genuine.

It is a case wherein the temptation to enter into such relationship was given by applicant to respondent 2 and respondent 2 was initially unwilling to fall prey to the advances made towards hereby the applicant. Misconception had been created not because of giving a false promise of marriage but because of giving false assurance to respondent 2 that applicant had his genuine and exclusive love and whenever time would come, would support her wholeheartedly.

In Supreme Court’s decision of Dhruvaram Murlidhar Sonar v. State of Maharashtra, 2018 SCC OnLine SC 3100, the distinction between rape and consensual sex was talked about,

“… Court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception.”

“…to have sexual intercourse on account of her love and passion for the accused and not solely on

account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently.”

“If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape.”

Thus, in the present case, prima facie, malafide intention and clandestine motive of the applicant could be seen by his attempt to seduce respondent 2 into having a sexual relationship with him when he, in spite of her reluctance expressed initially, gave such an assurance as was sufficient to misconceive it as genuine.

Supreme Court’s decision of Dhruvaram Murlidhar Sonar v. State of Maharashtra, 2018 SCC OnLine SC 3100 assists respondent 2 rightly in the present case.

Therefore, in view of the above Court found no merit in the application and dismissed the same. [Mohammed Aamir Ansari v. State of Maharashtra, 2020 SCC OnLine Bom 320, decided on 12-02-2020]

Case BriefsForeign Courts

Pakistan Supreme Court: A Full Bench of Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ. set aside an anticipatory bail order on the ground that pre-requisites for issuing such an order were not satisfied.

In the present case, the High Court of Lahore granted anticipatory bail to one Muhammad Akram who was required in a criminal case registered under Section 489-F of Pakistan Penal Code, 1860 upon failure of a bank cheque issued by him towards re-payment of loan. The learned judge confirmed ad-interim bail on the ground that respondent did not ‘misuse’ ad interim bail and that he was going to be released on post-arrest bail if at all, remitted into custody.

The Court opined that grant of pre-arrest bail is an extraordinary remedy in criminal jurisdiction; it is a diversion of the usual course of law, arrest in cognizable cases; protection to the innocent being hounded on trumped-up charges through abuse of process of law. Therefore, a person seeking judicial protection is required to reasonably demonstrate that intended arrest is calculated to humiliate him with taints of mala fide.

Reliance was placed on Hidayat Ullah Khan v. Crown, 1948 SCC OnLine Lah 20 wherein it was held that, anticipatory bail is granted to protect innocent beings from abuse of process of law, therefore a petitioner who sought anticipatory bail should have been able to demonstrate that intended arrest was with malafide intentions or abuse of process of law, wherein Court must not hesitate to rescue innocent. But in the case at hand, these situations were missing.

Thus, the impugned order was set aside as it was not in accordance with settled judicial principles and anticipatory bail granted to the private respondent was set aside.[Rana Abdul Khaliq v. State, 2019 SCC OnLine Pak SC 6, decided on 13-05-2019]