Gauhati High Court
Case BriefsHigh Courts

   

Gauhati High Court: While deciding the instant appeal preferred by Ranjan Daimari and 9 others regarding their conviction and sentence of life imprisonment by the Special Court in relation to the horrific 2008 bomb blasts which rocked Assam; the Division Bench of Suman Shyam and Malasri Nandi, JJ., observed that the manner in which the bomb blasts took place, undoubtedly reveal the intention to challenge India’s sovereignty, unity, integrity and cause widespread terror. Observing that the prosecution had successfully established that the blasts were a result of a conspiracy hatched by the 10 appellants, therefore, the Bench, applying the principles laid down in Yakub Abdul Razak Memon v. State of Maharashtra, (2013) 13 SCC 1, held that the order of the Special Judge convicting the appellants does not require any interference from the High Court.

Facts and Legal Trajectory of the Case: On 30-10-2008, 9 powerful bombs exploded in various parts of Assam like Kamrup (Metro), Barpeta, Bongaigaon and Kokrajhar between 11:20 a.m. to 11:30 a.m. In these blasts 88 persons had lost their lives and around 540 persons were critically injured along with extensive damages to movable and immovable properties.

Subsequently FIRs under IPC, UAPA and Explosive Substances Act were lodged. Initially, the responsibility of carrying out investigation these cases was taken up by the CID and Assam Police. However, subsequently, with the consent of the Government of Assam, the investigation was transferred to the Central Bureau of Investigation (CBI). From the investigation conducted, it was revealed that the nine bomb explosions were carried out by the members of the proscribed terrorist organization – National Democratic Front of Bodoland (NDFB) which was formed on 03-12-1986 under the chairmanship of Ranjan Daimari. These bomb blasts were the result of a conspiracy hatched and carried out by the members of the banned NDFB.

Consequently, CBI prepared the charge-sheet against 19 accused persons for commission of offences punishable under Penal Code, 1860 read with provisions of the Explosive Substances Act, 1908 and the Unlawful Activities (Prevention) Act, 1967. The CBI recorded statements of approximately 871 witnesses.

The trial initially commenced in the Sessions Court, Kamrup(M), Guwahati but subsequently, was transferred to the Special Court constituted for the purpose of speedy disposal of the case. During the trial, the prosecution examined almost 650 witnesses. The remaining witnesses could not be examined as some of them were dead or went traceless. On conclusion of trial and after analyzing the evidence available on record, the Special Judge passed the impugned order dated 28-01-2019 convicting the accused/ appellants.

Contentions: The counsel for the appellants argued that there is no evidence available on record to prove that the serial bomb blasts were the outcome of a conspiracy involving the appellants and that the prosecution has failed to lead evidence so as to connect the appellants with the occurrence.

The appellants pointed out that there was an unusual delay in completing the investigation and the trial in this case, thereby leading to serious prejudice to the interest of the appellants. It was further argued that sufficient time was not given to the defense counsel at the trial stage to argue the case. The appellants also contended that the Special Court did not appreciate the evidence adduced by the prosecution correctly.

It was also argued that just because Ranjan Daimari had given unsatisfactory answers to the questions put to him during his examination under Section 313, CrPC, that does not indicate his guilt.

Per contra, the respondents argued that the conviction of the accused was based on the evidence adduced by the prosecution witnesses and not on the statements of the witnesses recorded under Section 164 CrPC as it has been alleged by the appellants’ counsel; those statements, however, had been referred only to corroborate the testimony of the witnesses.

Observations/ Findings: Perusing the facts and contentions of the case, the Division Bench made a detailed analysis of the evidence and witnesses’ statements against all the appellants and the other accused persons, the victims of the bomb blasts and experts. The Court made the following observations-

  • Concerning the argument of delay raised by the appellants, the Court observed that during trial, as many as 5 Public Prosecutors were engaged by the CBI but due to language issues, some of the Public Prosecutors had to be changed, which had also contributed to the delay in concluding the trial and the same was on account of factors that were apparently beyond the control of the prosecution.

  • Concerning NDFB, the Court observed that the organisation came into existence with the professed objective of liberation of Bodoland through the process of secession of the area from India. It was noted that the NDFB had been working in alliance with other armed secessionist organizations of the North East region so as to carry on with the struggle for national liberation of the Indo- Burma region in alliance with likeminded organizations of that region. Which is why the Central Government was of the opinion that the NDFB has continued to indulge in illegal and violent activities intended to disrupt the sovereignty and territorial integrity of India and also to align itself with other unlawful associations like United Liberation Front of Assam (ULFA). Hence, NDFB was declared as an Unlawful Association and the organisation was banned. Furthermore, relying on Section 57 of Evidence Act, 1872, stated that there are cogent materials to prove that at the time of the occurrence of the bomb blasts, NDFB was a banned terrorist organization and an unlawful association within the meaning of the UAPA, 1967.

  • Regarding prosecution/ respondents’ submission that one Anup Kumar Baro was made an approver in the case, the Court noted that there is no material on record to hold the same. The Court further noted that serious doubts arise as to the procedure followed and the circumstances under which the statement of Anup Kumar was recorded, thus, his statement under Section 164 CrPC, cannot be relied upon as his confessional statement.

  • The Court also noted the statements of other accused persons implicating Ranjan Daimari and others. Concerning the statement of Ajay Basumatary, the Court observed that his confessional statement of this accused person appeared to be truthful and voluntary and the procedure prescribed under Section 164 CrPC was also properly followed.

    “The confession of accused Ajay Basumatary not only appears to have a logical sequence but we find that the same was also spontaneous. The confession of this accused also finds due corroboration from the other evidence available on record and there is no non-corroborative factor on record. Therefore, we are of the opinion that there is no valid ground to discard the confessional statement of accused Ajay Basumatary merely because he had subsequently retracted his confession”.

  • After careful and detailed scrutiny of the evidence, the Court noted that the fact that the NDFB was a banned organization and an unlawful association, was cogently established from the testimonies of prosecution witnesses as well as the exhibits. The fact that NDFB was indulging in terrorist activities thus stands established from the evidence adduced by the prosecution.

  • Observing that 9 horrific bomb blasts which took place simultaneously within a span of 10 minutes causing large scale devastation to human lives and properties, has been cogently established from the evidence of the relatives of the victims, injured witnesses, persons who had suffered losses, evidence of the medical officers, ballistic experts etc.

    “The manner in which the serial blasts took off at different places in the State of Assam leaves no room for doubt that the same was the handiwork of some person(s) or organization. Unless there was a concerted effort on the part of a number of people, blasts of this intensity, in multiple locations would not be possible. As such, the fact that the bomb blasts were the outcome of a criminal conspiracy is self-evident and the prosecution has also adduced sufficient evidence to establish the said fact (…) there can be no element of doubt about the fact that the sole purpose behind the blasts was to cause terror and thereby challenge the sovereignty, unity and integrity of the country”.

Conclusion: With the afore-stated observations, the Court stated that the prosecution was able to establish each link in the chain of circumstances to prove that the 9-bomb blast that took place on 30-10-2008 was the outcome of the conspiracy hatched by the appellants. “The appellant/accused persons were in a conspiratorial relationship and have acted in a concerted manner to execute the nine bomb blasts leading to the carnage. There is trustworthy evidence available on record to establish all the links in the chain of circumstances to prove the charge brought against each of those appellant/ accused persons beyond reasonable doubt.

However, concerning some of the appellants namely Onsai Boro, Lokhra Basumatary, Indra Bhramha and Jayanti Brahma, the Court stated that the evidence on record is insufficient to conclude that the charges brought against them have also been proved beyond reasonable doubt.

The Court directed Raju Sarkar and Baisagi Basumatary, who are out on bail, to surrender before the Trial Court.

[Ranjan Daimari v. Central Bureau of Investigation, 2022 SCC OnLine Gau 1424, decided on 27-09-2022]


Advocates who appeared in this case:

Advocate for the Petitioner: A.K. Bhattacharya, Senior Counsel assisted by M. Saraniya and D.K. Bhattacharya, Counsels;

Respondents- S.C. Keyal, Special Public Prosecutor.


*Sucheta Sarkar, Editorial Assistant has prepared this brief.

National Consumer Disputes Redressal Commission
Case BriefsTribunals/Commissions/Regulatory Bodies

   

National Consumer Disputes Redressal Commission (NCDRC): While deciding the instant revision petition under Section 21(b) of Consumer Protection Act, 1986, the Bench of Dinesh Singh (Presiding Member) and Karuna Nand Bajpayee, J., (Member) observed that points of law regarding “limitation” and “consumer” have to be applied on the facts of the case, and the facts can only be determined by leading evidence before the forum of first instance (in rare cases by filing additional evidence before the forum of appellate jurisdiction) and should not be raised in revision just for the sake of prolonging the lis.

Facts and Legal Trajectory of the Case: The complainant (respondent in the instant petition) insured his truck with the insurance company for an assured sum of Rs 9,60,000 for the period from 04-10-2006 to 03-10-2007. During the subsistence of the policy, the truck met with an accident on 19-10-2006. The complainant claimed loss of Rs 6,25,020. The surveyor appointed by the insurance company assessed the loss at Rs 2,30,000 which was intimated to the complainant via a letter dated 28-04-2010. The letter stated that the insurance company will settle the claim at Rs 1,04,316 and sent therewith pre-receipted vouchers for discharge in full. Aggrieved with the quantum of the settlement, the complainant filed a complaint before the District Commission on 08-06-2010.

Upon perusal, the District Commission assessed the loss at Rs. 5,27,770 and ordered the insurance company to pay the said sum to the complainant along with compensation of Rs. 20,000. The insurance company appealed to the State Commission which made its own independent appraisal of the case and assessed the loss at Rs. 4,50,000. It ordered the insurance company to pay the said sum to the complainant along with compensation of Rs. 20,000/- as ordered by the District Commission within two months of receipt of its Order, failing which it would carry interest at the rate of 15% per annum till payment.

Aggrieved with the decision, the insurance company then approached the NCDRC.

Contentions: Counsels for the insurance company argued that the surveyor's report should not have been overruled by the State Commission. They also contended that the case was barred by limitation since the accident occurred on 19-10-2006 and the complaint was filed on 08-06-2010 which was beyond the two-year period stipulated under the Consumer Protection Act, 1986.

The counsel further contended that the vehicle was purchased under a hire-purchase agreement which shows that the same was being used for commercial activities and therefore the complainant was not a ‘consumer' under Section 2(1)(d) of the 1986 Act.

Per contra, the counsels for the complainant argued that the question of limitation was not raised by the insurance company either at the forum of original jurisdiction (District Commission) or at the forum of appellate jurisdiction (State Commission).

Observations: Perusing the trajectory of the dispute, the Bench made the following observations-

  • The District Commission had cogent reasons to overrule the surveyor's report. The Bench noted that the District Commission made its appraisal after examining the entire evidence which also included the vouchers relating to the repairs undertaken on the accident-hit vehicle. The State Commission then took due note of the surveyor's report as well as of the District Commission's appraisal and after considering the entire evidence made its own assessments.

  • The Bench pointed out that the counsels of the insurance company could not explain the reasons that when the surveyor had assessed the loss at Rs. 2,30,000 what caused the insurance company to settle the claim at only Rs. 1,04,316. The counsels also could not explain the reasons that when the accident occurred in 2006, what caused the inordinate delay of sending intimation of settlement in 2010 i.e., after over 3.5 years; and whether the delay was on the part of the insurance company or on the part of the complainant or both.

  • Vis-a-vis the contention regarding limitation, the Bench upon examining the material placed before itself, observed that the insurance company intimated the settlement of claim via letter dated 28-04-2010. The complainant filed his complaint on 08.06.2010 which was well within the limitation period of two years provided under Section 24-A (1) of Consumer Protection Act, 1986. “The argument of the counsel that the limitation should be counted from the date of the accident is patently irrational, there is a distinct distinction between the date on which the accident occurred and the date on which the cause of action arose”.

  • Regarding the contention that the complainant is not a consumer as per the concerned provisions of the 1986 Act, the Bench pointed out that Section 2(1)(d) precludes a person who hires or avails of any service for any “commercial purpose” but the explanation thereto makes it clear that “commercial purpose” does not include services availed exclusively for the purposes of earning livelihood by means of self-employment. The Bench also noted that this objection was neither raised before the District Commission nor in appeal before the State Commission. “In other words, it is patently clear that the opportunity to rebut the same was not duly provided to the complainant before the District Commission or even before the State Commission”.

  • It was further observed that in matters where it is necessarily to be seen whether the activity undertaken was for commercial purpose or whether it was exclusively for the purpose of earning a livelihood through self-employment; much depends upon the facts. Thus, adequate opportunity to both sides must be made available so that they may furnish out the relevant facts and evidence.In such cases if the plea is not raised at the appropriate stage when it ought to have been raised and where the opportunity to furnish an adequate rebuttal in that regard could have been availed by the other side, it becomes highly doubtful whether such a plea seeking ouster of the jurisdiction may be raised at a belated stage”.

Conclusion and Decision: With the afore-stated observations, the Bench concluded that there was no misappropriation of evidence on the part of the State Commission requiring a de novo re-appreciation in revision. Given the facts of the instant case, the award appears to be just and equitable. There is no jurisdictional error or legal principle ignored or erroneously ruled or miscarriage of justice in the impugned Order of the State Commission.

The Commission also termed the instant revision petition to be frivolous one, filed simply to prolong the case.

The Commission also directed that the amount (if any) deposited by the insurance company with the District Commission, along with interest (if any) accrued, shall be released by the District Commission to the complainant by way of ‘payee's account only' demand draft as per the procedure. The balance awarded amount shall be made good by the insurance company, failing which the District Commission shall undertake execution, for ‘enforcement' and for ‘penalty' as per the law.

[National Insurance Co. Ltd. v. Prabodh Kumar Swain, REVISION PETITION NO. 1782 OF 2013, decided on 14-07-2022]


Advocates who appeared in this case :

S. K. Ray, Advocate with Nikita Chaturvedi, Advocates, for the Petitioner;

Subesh Kumar Sahu, proxy counsel for Sanjib Kumar Mohanty, Advocates, for the Respondent;

None, for the Respondent No.2.


*Sucheta Sarkar, Editorial Assistant has prepared this brief.

Case BriefsSupreme Court

Supreme Court: In a trade mark infringement case where interlocutory injunction was sought during the pendency of the suit, the bench of L. Nageswara Rao and BR Gavai*, JJ, was faced with a strange situation where at first, an adjournment order of the single judge of Calcutta High Court was treated as a ‘judgment’ and appealed against and later on, in appeal, the division bench took in upon itself to dispose of the interlocutory application instead of relegating it to the court below for its disposal because it did not want to prolong the litigation.

Single Judge Bench’s order

The order was postponement of the question as to whether the respondent-plaintiff was entitled to grant of an ad-interim injunction or not, and that too, by merely three weeks.  The order was only giving an opportunity to the appellants-defendants to file their affidavit-in-opposition within a period of two weeks. The order clarified that no prayer for extension of time shall be entertained.

Was it a ‘judgment’?

There was no adjudication with regard to the rights of the respondent-plaintiff to get an ad-interim injunction during the pendency of the suit.  Though by postponement of the issue with regard to grant of ad-interim injunction, the order might have caused some inconvenience and may be, to some extent, prejudice to the respondent-plaintiff; the same could not be treated as a ‘judgment’ inasmuch as there was no conclusive finding as to whether the respondent-plaintiff was entitled for grant of ad-interim injunction or not.

“As such, the order passed by the learned Single Judge did not contain the traits and trappings of finality. If it is held otherwise, this will open a floodgate of appeals for parties who may even challenge the order of adjournment or grant of time to the other side to file affidavit-in-reply.”

Hence, the said order cannot be construed to be a ‘judgment’ within the meaning of Clause 15 of Letters Patent and as such, the appeal to the Division Bench of the High Court was not tenable.

Division Bench’s order

The Single Judge passed an order on 2nd  April 2019 and the appeal to the Division Bench was filed immediately thereafter in the month of April, though the exact date of filing of appeal is not known. The judgment and order impugned herein was passed after a gap of about 8-9 months from the date of the order passed by the Single Judge.

The perusal of the judgment and order impugned herein would clearly reveal that the counsel for the appellants-defendants had specifically submitted that the appeal was against an ad-interim order and therefore, the appellate court should not interfere by substituting its views but should instead direct a speedy hearing of the interim application of the respondent-plaintiff. The Division Bench of the High Court after recording the said submission, observed thus:

“Before entering into a discussion with regard to the merits of this case I say that all the facts and papers which were necessary for deciding the prima facie case of the parties were before us.  On these facts and evidence we were in a position to assess their respective   prima   facie   case   and   the   balance   of convenience. In those circumstances we propose to dispose of the interlocutory   application   ourselves   instead of entering a prima facie finding and relegating it to the court below for its disposal. That would be unnecessary prolongation of the litigation and utter wastage of time.”

What was wrong with the order?

The Supreme Court could not understand the anxiety on the part of the Division to itself dispose of   the interlocutory application instead of relegating it to the court below for its disposal when it itself took 8-9 months to decide the appeal.

“If the learned Judges of the Division Bench were so much concerned with the prolongation of litigation, they could have very well requested the learned Single Judge to decide the injunction application within a stipulated period. Instead of waiting for a period of 8-9 months, this could have been done by them at the very first instance when the appeal was listed. The hierarchy of the trial court and  the appellate  court  exists  so  that the  trial court exercises its discretion upon the settled principles of law.  An appellate court, after the findings of the trial court are recorded, has an advantage of appreciating the view taken by the trial judge and examining the correctness or otherwise thereof within the limited area available. If the appellate court itself decides the matters required to be decided by the trial court, there would be no necessity to have the hierarchy of courts”

Hence, having waited for 8¬9 months after the Single Judge had passed the order, all that ought to have been done by the Division Bench was to request the Single Judge to decide the application for ad-interim injunction, which in fact, the Single Judge had scheduled to do after three weeks from 2nd April 2019.  It was not even necessary for the Division Bench to have waited till 24th December 2019 and taken the pains of deciding the application at first instance.  It could have very well, in the month of April, 2019 itself, done the exercise of requesting the Single Judge to decide the application as scheduled.

In any event, though the Division Bench of the High Court observes that for deciding the question with regard to grant of interim injunction, it has to put itself in a position as if it was moved to pass an interim order in the suit, it even fails to take into consideration the principles which a court is required to take into consideration while deciding such an application.

Cost Imposed

The Court observed that it is high time that this Court should take note of frivolous appeals being filed against unappealable orders wasting precious judicial time. As it is, the courts in India are already over-burdened with huge pendency. Such unwarranted proceedings at the behest of the parties who can afford to bear the expenses of such litigations, must be discouraged.

Hence, the Court order the respondent-plaintiff to pay a token cost of Rs.5 lakhs to the Supreme Court Middle Income Group Legal Aid Society.

[Shyam Sel and Power Ltd. v. Shyan Steel Industries Ltd., 2022 SCC OnLine SC 313, decided on 14.03.2022]


*Judgment by: Justice BR Gavai


For Appellants: Senior Advocate Mukul Rohatgi

For Respondents: Senior Advocate Neeraj Kishan Kaul

Case BriefsSupreme Court

Supreme Court: In a case where the order was dictated in the court, but had not been signed, the 3-judge bench of Dr. BS Chauhan, J. Chelameswar and MY Eqbal, JJ refused to accept the argument that once the order had been dictated in open court, the order to review or recall is not permissible in view of the provisions of Section 362 Cr.P.C. and took the opportunity to explain what a judgment is.

The order came in the case where the petitioners were convicted under Section 222 IPC. They had then preferred an appeal before the Gujarat High Court and during the pendency of the appeal, the petitioners had been enlarged on bail in November 2006. 7 years later, in December 2013, the appeal was finally allowed, and the order was dictated in open court allowing the appeal on technical issue.

However, the order dictated in open court and acquitting the petitioners was recalled by the court suo moto vide order dated 27.12.2013 and directed the appeal to be reheard on the ground that the court wanted to examine the issue further as to whether in the facts and circumstances of the case where the accused had been police constables, the offence could not be attributed to have been committed under the commission of their duty where sanction under Section 197 Cr.P.C. would be attracted.

It was, hence, argued that once the order had been dictated in open court, the order to review or recall is not permissible.

The Court rejected the contention and explained that Section 362 Cr.P.C. puts an embargo to call, recall or review any judgment or order passed in criminal case once it has been pronounced and signed.

The Court heavily relied on the judgment in Surendra Singh v. State of U.P., AIR 1954 SC 194 wherein it was held,

“… it is frequently the practice to send a draft, sometimes a signed draft, to a brother Judge who also heard the case. This may be merely for his information, or for consideration and criticism. The mere signing of the draft does not necessarily indicate a closed mind. We feel it would be against public policy to leave the door open for an investigation whether a draft sent by a Judge was intended to embody his final and unalterable opinion or was only intended to be a tentative draft sent with an unwritten understanding that he is free to change his mind should fresh light drawn upon him before the delivery of judgment.”

Referring to several judgments, the Court observed,

“… unless the judgment is signed and sealed, it is not a judgment in strict legal sense and therefore, in exceptional circumstances, the order can be recalled and altered to a certain extent.”

[Kushalbhai Ratanbhai Rohit v. State of Gujarat, (2014) 9 SCC 124, decided on 06.05.2014]


Counsels

For petitioners: Senior Advocate Fakhruddin

For State: Advocate Anurag Ahluwalia

Case BriefsHigh Courts

Delhi High Court: While stating the well-settled law that even when an appellate Court affirms the order of the Court below, it has to adjudicate on the issues which arise in the appeal, Subramonium Prasad, J., emphasized why reasons laid down in a judgment are essential and in view of that referred to certain decisions of the Supreme Court.

Present matter was directed against the decision of Additional Sessions Judge arising out of the order passed by Metropolitan Magistrate.

The Metropolitan Magistrate had dismissed the petition filed under Section 12 of the Domestic Violence Act on the ground of non-prosecution. Further, the MM had also issued notice to the Deputy Director, Directorate General of All India Radio to furnish details of empanelment of the petitioner along with other details in order to determine the maintenance.

Additional Sessions Judge heard the appeal under Section 29 of the DV Act.

Under Section 29 of the DV Act, an appeal is maintainable against an order passed by the Magistrate on both law and facts.

“…reasons are the live links between the mind of the decision taker to the controversies in decision and the decision or conclusion arrived at. An order sans reasons takes away a very valuable right of a litigant – to challenge that order.”

 Supreme Court’s decision in CCT v. Shukla & Bros., (2010) 4 SCC 785 was also referred wherein it was observed that,

“…Court has consistently taken the view that recording of reasons is an essential feature of dispensation of justice. A litigant who approaches the court with any grievance in accordance with law is entitled to know the reasons for grant or rejection of his prayer. Reasons are the soul of orders…” 

“…A judgment without reasons causes prejudice to the person against whom it is pronounced, as that litigant is unable to know the ground which weighed with the court in rejecting his claim and also causes impediments in his taking adequate and appropriate grounds before the higher court in the event of challenge to that judgment…”

Supreme Court’s decision in State of Orissa v. Dhaniram Luhar, (2004) 5 SCC 568 was also referred to.

Bench held that the impugned order was completely bereft of any reasons.

Duty of the Appellate Court is to see whether the Metropolitan Magistrate had considered the claim of the petitioner on merits and what are the reasons given by the Metropolitan Magistrate to reject the claim.

High Court while setting aside the order of the Additional Sessions Judge remanded the matter back to the ADJ for consideration. [BSR v. PSR, 2021 SCC OnLine Del 4789, decided on 21-10-2021]

Case BriefsTribunals/Commissions/Regulatory Bodies

Customs, Excise and Services Tax Appellate Tribunal (CESTAT): The Coram of Ashok Jindal (Judicial Member) and P.V. Subba Rao (Technical Member) dismissed an application which the Revenue had filed for rectification of mistake on the ground that while entertaining the appeal, this Tribunal had dismissed the appeal filed by the Revenue without considering the fact that the process of digitations of data was also a process of manufacture or not?

Authoritative representative submitted that the adjudicating authority had erred in holding that the process of digitations of data was also a process of manufacture on which this Tribunal had not given any finding.

Counsel for the respondent submitted that during the course of hearing AR was present in the Court and the order had been dictated by this Tribunal in the open court. There was no argument made by AR for the said issue, therefore, there is no merit in the application for rectification of mistake.

The Tribunal observed that the fact that order was dictated by this Tribunal in the open court and the issue with regard to the process of digitations of data was also a process of manufacture was not argued is not in dispute. The Tribunal further relied upon the judgment of the Tribunal in Hindustan Zinc Ltd., 2015 (318) ELT 614 (SC) and quoted,

“This appeal is preferred against the order dated 6th September, 2002 passed by Customs, Excise and Gold (Control) Appellate Tribunal (hereinafter referred to as

“CEGAT‟ for short) in the rectification application which was preferred by the Department. By the said order, the CEGAT has dismissed the application with the observations that the issue raised in the rectification application was not argued at the time of hearing of the main case. This aspect could not be disputed by the learned senior counsel appearing for the Department.

Having regard to the above, we do not find any error in the order dated 6th September, 2002 passed by CEGAT.”

The Tribunal finally dismissed the applications holding that the issue was not argued at the time of hearing and while dictating the order in the open court, thus there is no mistake apparent on record.[CCE & ST v. NIIT GIS Ltd., 2021 SCC OnLine CESTAT 2582, decided on 24-09-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Hot Off The PressNews

Bar Council of India passed a resolution on 22-12-2019 appealing the people of the country to maintain peace and harmony.

The Lawyers, the Bar Associations, State Bar Council, the students’ Associations of National Law Universities and all the Law Colleges should come forward, take active and positive steps to ensure that the Law and order is maintained throughout the country.

Resolution, asks the above-said to try convincing people and the common-man to enhance the feelings of brotherhood in the society.

People involved in violence should be brought to the notice of administration.

Bar requests the leaders of the Bar and young students to convince the people and the illiterate ignorant mass, who are being misled by some so-called leaders (for serving their own political ambitions) the matter with regard to Citizenship Amendment Act is under consideration of Supreme Court, therefore everyone should await the decision of Apex Court.

The damage to public or private properties, the attack on our Policeofficial/personnel or the defence personnel are very serious issues. The legal fraternity and their bodies cannot tolerate any attack on or humiliation of our forces.

Bar expressed solidarity with the police and Armed forces.


Bar Council of India

[Press Release dt. 22-12-2019]

Case BriefsHigh Courts

Allahabad High Court: A Division Bench of Pankaj Kumar Jaiswal and Jaspreet Singh, JJ. dismissed the special appeal as it had no merit after having heard the Counsel for the appellants, Prem Shanker Pandey and Q.H. Rizvi, Addl. Chief Standing Counsel for the Respondent.

In the instant case, three people Paramjeet Singh, Jagjeet Singh and Baj Singh took a loan from Union Bank of India, for purchase of a truck. The Bank authorities sanctioned the loan on the security of 2/3rd land given by Paramjeet Singh and Jagjeet Singh. Baj Singh had mortgaged 1/4th share of another piece of land. When they could not repay the loan, a recovery certificate was issued by the Bank and thereafter an auction was held by the Naib Tehsildar. The land was auctioned to Major Singh. The land was again going to be re-auctioned. Therefore, Major Singh challenged the aforesaid re-auction by filing a writ petition which was later dismissed.

The second auction took place and yet again Major Singh became the highest bidder and the land was confirmed in his favour. Thereafter, Paramjeet Singh and Jagjeet Singh filed a Writ Petition thereby an order of the Court was passed. The Court observed that if the writ petitioners deposit 25% of the outstanding amount within one month from the date of the order, their property would not be attached and put to auction and if auctioned, the same will not be confirmed and the same may be kept in abeyance. Further to this, a review was filed by Major Singh which was entertained and the aforesaid order was modified as the material facts that land in question was already sold or auctioned were concealed to get such an order at the first place.

The Court rejected the recall application against the above order filed by the appellants. The sale was confirmed in favour of Major Singh on the basis of an order passed by this Court giving due consideration as to the fact that the appellants had obtained an order by concealing the material facts that land in question was already sold/auctioned.[Paramjeet Singh v. State of U.P., 2019 SCC OnLine All 3145, decided on 29-08-2019]

Case BriefsHigh Courts

Bombay High Court: V.M. Deshpande, J., quashed the trial court’s Judgment convicting the applicant herein for the offences punishable under Sections 279 (rash driving or riding on a public way) and 304-A (causing death by negligence) IPC. The order of the Ad-hoc Additional Sessions Judge was also set aside whereby he confirmed the trial court’s Judgment.

As per the prosecution, the applicant, a driver with Maharashtra State Road Transport Corporation, was driving the offending bus which knocked down a 6-year old girl. The incident was reported, and the applicant was tried and convicted as aforesaid. He challenged his conviction but the appeal was dismissed by the Ad-hoc Additional Sessions Judge. Aggrieved thereby, the applicant filed the present revision application. His defence throughout was that he was not driving the offending bus at the time of the incident.

The High Court stated: “It was open for the prosecution to obtain the relevant record from the depot to which the applicant was attached, to show that at the relevant time the applicant was driving the offending vehicle. Further, it was obligatory on the part of the prosecution to prove those documents. In the present case, that has not been done. On the contrary, the learned lower appellate Court, it appears that, dismissed the appeal on the basis of unproved documents.” In the Court’s opinion, the evidence available was not sufficient to conclusively prove that the applicant was driving the offending bus. He was found entitled to benefit of doubt. Resultantly, the Court quashed his conviction and also set aside the First Appellate Court’s order mentioned above. [Sudhir v. State of Maharashtra, 2019 SCC OnLine Bom 558, decided on 02-04-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): A Bench comprising of Divya Prakash Sinha, Information Commissioner allowed an appeal and directed the CPIO to adequately liaise with the officers to carry out his duties in the present matter.

In the pertinent case, the appellant has sought details of the sanctioned strength of SAS Grade, JAG, Senior-Scale Grade, Junior Scale Grade and Group-B in legal cadre of Indian Railways from the year 2000 to 2016. Details of the incumbents, names and details of the working place and revised list of the details against each grade issued in the light of orders of CAT were also sought for. The respondent submitted in return that since the seniority list of gazetted employees is made by Zonal Railways while list of non-gazetted employees is made by Railway Board, therefore consolidated information was not available.

The Court directed the CPIO to seek the assistance of the concerned holder of information and provide it directly to the appellant free of cost within 30 days from the date of receipt of this order. [Kasi Vishwanathan v. CPIO, 2019 SCC OnLine CIC 27, Order dated 06-02-2019]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Jayant Nath, J. allowed an appeal filed against the previous order whereby the right of defendants to file written statement was closed as 120 days prescribed in CPC for filing a written statement had expired.

Ms Sudeepti, Advocate appearing for the defendants submitted that a written statement was filed within 120 days but there was a delay in re-filing the same. She relied on the order of the Joint Registrar where it was noted that a written statement was filed but returned under office objection.

The High Court took note of the admitted fact that defendants have filed a written statement. Reference was made to Indian Statistical Institute v. Associate Builders, (1978) 1 SCC 483 and it was observed to be a settled legal position that delay in re-filing has to be considered on a different footing. Contention put forward by N. Prabhakar and Dhruv Sharma, Advocates for plaintiffs that re-filing tantamount to fresh filing did not find favour with the Court. Accordingly, the appeal was allowed. The written statement was directed to be taken on record if re-filed within one week. [Narender Kumar Sharma v. Maharana Pratap Educational Centre, 2018 SCC OnLine Del 13146, dated 13-12-2018]

Case BriefsHigh Courts

Madras High Court: Petitioner had approached this Court before a Single Judge Bench of Pushpa Sathyanarayana, J., with a prayer to block the link of all websites involved in online sale of Schedules H, H1 and Schedule X medicines which is in violation of Rules 65 and 97 of the Drugs and Cosmetics Rules, 1945 until they receive requisite license.

Respondent contended that petitioner had already filed a writ petition with the same prayer thus this petition not only is a multiplicity of proceedings but also petitioner is guilty of suppressio veri and suggestio falsi. This petition was filed without a new cause of action. Petitioner defended by stating that there is no res judicata and constructive res judicata, as there was no order of the Court which finalized the issue raised before it. Therefore, there was no res judicata. Sections 12 and 33 of the Act empowered the Central Government to make rules with respect to the import of drugs, cosmetics, and its manufacture, sale, and distribution of drugs and cosmetics. It is to be noted that draft rules though published in the Gazette, are not yet notified. Without these rules, it would become difficult to curb the sale of medicines online.

It may be noted that earlier on 31-10-2018, the Court had granted an interim injunction against the online sale of medicines without license after taking note of the seriousness of the issue and public cause.

High Court viewed that though the online sale has many benefits but it has many flaws too and there is a need to curb the online sale of medicines. Court directed respondents to notify the proposed Drugs and Cosmetics Amendment Rules, 2018 and ordered that unless the aforementioned rules are notified, the online traders should stall their online business in drugs and cosmetics.

However, by a subsequent order the Division Bench comprising of M. Sathyanarayanan and P. Rajamanickam, JJ. have suspended the operation of the earlier stay order in following terms:

“It is brought to the notice of the Court that the learned Judge has suspended Paragraph No. 38 of the impugned order passed in the writ petition till 10.30 a.m. and since the Court has already entertained the writ appeals and on hearing the rival submissions, has reversed orders in the miscellaneous petitions for interim order, till it pronounces orders in the miscellaneous petitions, the order of suspension shall be continued. It is made clear that the continuance of the order, shall not create any equitable rights in favour of the appellants and it is subject to the result of the orders to be passed in the miscellaneous petitions for interim orders.”[Practo Technologies (P) Ltd. v. Tamil Nadu Chemists and Druggists Assn., 2018 SCC OnLine Mad 3577, Order dated 20-12-2018]

Case BriefsHigh Courts

Madras High Court: A Single Judge Bench comprising of N. Seshasayee, J., allowed an appeal on the ground that the respondent gave up his interest in the Order that he had obtained in his favour. 

The facts of this case are that respondent is the biological father of the child and the appellant is the maternal grand father of the child. Seeking custody of the minor child, the respondent filed a petition before the Additional District Court, and the same was ordered in his favour. Challenging the order of the lower Court, the appellant preferred the present appeal.

The counsel for petitioner, Advocate R.Shivakumar, argued that the respondent had gotten married and settled down and did not turn up to see his daughter. It was also reported that the child was 17 years and she does not remember to have seen her father.

The counsel for the respondent, Advocate N.U. Prasanna submitted that the respondent had no interest to take immediate custody of the child since the child was only few months to attain majority and that she had not been in his care through out the duration of this litigation.

This Court allowed the appeal on the ground that the respondent gave up his interest in the order that he had obtained in his favour. [R. Venkatesan v. J. Gunasekaran, 2017 SCC OnLine Mad 35492, Decided on 10-11-2017]

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: This appeal was preferred before a 2-Judge Bench of Rakesh Kumar and  Anupinder Singh, JJ., against the judgment and decree passed by the Additional District Judge by which petition filed under Sections 11 and 12 of the Hindu Marriage Act, 1955 by the respondent-husband for annulment of marriage with the appellant-wife was allowed.

During the pendency of this appeal, the appellant filed an application for maintenance pendente lite under Section 24 of the Act. The above application was allowed and thereby the respondent was supposed to pay Rs. 5,000 per month towards maintenance pendente lite. But since respondent failed to do so he was directed to pay entire arrears of maintenance pendente elite. The only contention made by respondent for non-payment of maintenance was that he did not have any money to give. High Court struck off respondent’s only defence leaving with the issue that if the respondent has no defence can the judgment and decree passed by the trial Court sustain or is to be set aside.

High Court struck off the defence of respondent on the ground of non-payment of maintenance, that he wanted annulment of marriage on the ground that appellant had already married twice and marriage with respondent was her third marriage with previous marriage subsisting. Thus, there remained no defence on record for annulment of marriage. Therefore, this appeal was allowed and judgment and decree passed by trial court was set aside. [Sonia v. Deepak, 2018 SCC OnLine P&H 2024, decided on 04-12-2018]

Case BriefsHigh Courts

Karnataka High Court: A Division Bench comprising of Dinesh Maheshwari CJ and S. Sujatha, J. declined to exercise PIL jurisdiction in petition filed by residents of Kottur Town Panchayath challenging approval for construction of town panchayath building on a land.

Mr N. Shankarayana Bhat, counsel on behalf of the petitioners, placed reliance on the Record of Rights (RTC) and submitted that the subject land was reserved for public purpose and specifically shown as ‘park and overhead water tank’ in revenue records. It was submitted that the order granting approval for construction of new panchayath building in that land was not as per procedure prescribed under Section 306 of the Karnataka Municipalities Act, 1964 and as such unsustainable in law.

Learned counsel Mr M.V. Hiremath, appearing on behalf of respondent, refuted the contentions of petitioner and submitted that the subject land was purchased by respondent for constructing town panchayath office and water tank, and RTC records clearly depicted the land to be for official buildings and water tank.

The Court noted that the subject land was purchased by respondent through a registered sale deed for constructing panchayath building and water tank. However, mistakenly, the RTC extracts reflected purpose of land as ‘park and water tank’. The said mistake was corrected on respondent’s representation and that order remained unchallenged. The said order, having attained finality, petitioner could not seek liberty to maintain a park in the subject land.

It was further held that Section 306 of the Act is applicable only if Deputy Commissioner is of the opinion that execution of any order or resolution of a town municipal council is unlawful, or is likely to cause injury/ annoyance to public, or lead to a breach of peace.

Since the proposal to use subject land for building panchayath office and water tank did not militate against public interest, the petition was dismissed.[K.S. Iswara Goud v. Town Panchayath, Kottur, 2018 SCC OnLine Kar 2705, decided on 10-12-2018]

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu & Kashmir High Court: A Single Judge Bench of Rashid Ali Dar, J., allowed a petition filed against the order of respondent authorities, whereby petitioner was taken into preventive custody and lodged in Central Jail, Kotebhalwal, Jammu.

The main issue that arose before the Court was whether an order of preventive detention can be passed while the accused is already in police custody.

The Court observed that as per the judgment of Sama Aruna v. State of Telangana, (2018) 12 SCC 150, it is a settled proposition of law that a person cannot be taken into preventive detention while he is already in police custody. In that case, the Supreme Court had held that an order of preventive detention cannot be passed against an accused while considering a stale incident which took place a long time ago. The Court further observed that it was incumbent on the part of the person, who did the exercise of handing over the documents and conveying the contents thereof to the detenu, to file an affidavit in order to attach a semblance of fairness to his actions.

The Court held that the respondents in the instant matter had placed the petitioner under preventive detention while he was already in police custody; this action on the part of respondents is unjustified. Further, the respondents did not even supply the material to the petitioner, which formed the basis of the order of preventive detention. Resultantly, the petition was allowed and the order of preventive detention was quashed.[Farooq Ahmad Bhat v. State of J&K,2018 SCC OnLine J&K 924, order dated 01-12-2018]

Patna High Court
Case BriefsHigh Courts

Patna High Court: A Single judge bench comprising of Ahsanuddin Amanullah, J. while hearing a civil writ petition ruled that lawful possession of a property cannot be interfered with by way of ouster or locking of the premises in the absence of a Court order to that effect.

Petitioners herein were the land owners and tenants of certain shops in Gaya and respondents were the buyers of these shops. The present petition was filed assailing the action of State authorities whereby petitioners’ shops were locked and the main entrance thereto was forcibly blocked by unloading sand and stone chips in front of the said shops. Petitioners submitted various documents and circumstances to indicate their lawful ownership/ tenancy of the land/ shops in question.

The primary question for consideration was as to whether the District administration or any private person can forcibly seal and put lock in the premises occupied by another person without following due process of law.

The Court noted that the report submitted by District administration showed that the petitioners were in lawful possession of the subject premises. Thus, without going into the question of title or otherwise, it was held that once the tenant petitioners were in possession of the shops in question, they could not have been dispossessed or their shops locked without the order of a civil court.

The petition was disposed of with a direction to the District Magistrate and Senior Superintendent of Police, Gaya to ensure that the possession of shops in question be handed over to the petitioners after taking due receipt of the materials inside the shop.[Bigan Mistry v. State of Bihar,2018 SCC OnLine Pat 2148, decided on 28-11-2018]

National Consumer Disputes Redressal Commission
Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): A Division Bench comprising of R.K. Agarwal, J., M. Shreesha, Member, allowed an appeal filed against the order of the Chandigarh State Commission, whereby the commission held that a settlement had arrived between the parties.

The main issue that arose before the Commission was whether the State Commission was justified in passing an order on the basis of an alleged settlement between the parties.

The Commission observed that the alleged settlement between the parties was not available in writing. The respondents clearly stated that the settlement was not in writing but the counsel for respondent had contended before the State Commission about a settlement having been entered into between the parties and the State Commission thereafter proceeded on this premise. The Commission further observed that the counsel for respondents sought time to produce the written agreement setting out terms and conditions of settlement, however, no such agreement was produced.

The Commission held that in the absence of a written agreement the State Commission could not have passed an order which was based on the existence of the alleged settlement between the parties. The order of the State Commission was set aside and the appeal was allowed. [Sumit Kumar v. Silver City Housing and Infrastructure Ltd., 2018 SCC OnLine NCDRC 414, order dated 26-10-2018]

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu & Kashmir High Court: A Single Judge Bench of Rashid Ali Dar, J., allowed a petition filed against the order of District Magistrate, Anantnag, under Section 8 of the J&K Public Safety Act, whereby the petitioner was placed under preventive detention.

The main issue that arose before the Court was whether the order passed by the detaining authority was good in law.

The Court observed that even though the petitioner was granted bail in the concerned criminal case, he was not released, rather he was taken into custody vide the impugned detention order. In the detention order there is no mention of bail which was granted to the petitioner and hence it can be fairly concluded that there was non-application of mind on the part of detaining authorities. The Court further observed that the materials which formed the basis of detention order were not supplied to the petitioner. The Court then referred to the Supreme Court judgment of Thahira Haris v. Government of Karnataka, (2009) 11 SCC 438, wherein it was held that in cases where documents forming ground for detention are not supplied to the detenue, the order of detention becomes illegal.

The Court held that the order of detention passed by the detaining authorities was illegal since there was non-application of mind while passing the order and the materials that formed the very basis of such an order were not supplied to the petitioner. Non-supply of materials rendered the petitioner helpless in filing an appropriate representation against such an order and it also violated the fundamental right of petitioner guaranteed to him under Article 22(5) and (6) of the Constitution of India. Resultantly, the order of detention was quashed and the petition was allowed. [Subeel Javid v. State of J&K,2018 SCC OnLine J&K 758, order dated 23-10-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

Securities and Exchange Board of India (SEBI): G. Mahalingam, whole time Member, in this order granted exemption from application of Section 3(2) of Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 2011.

An application was filed under Section 11(1) and Section 11(2)(h) of the SEBI Act read with Regulation 11(5) of the SAST Regulations, 2011 seeking exemption from application of Section 3(2) of the SAST Act on acquiring of shares and voting rights in the target company. The matter before the Board was that the promoters were willing to transfer by way of gift all the equity shares of the Target Company to the acquirer trusts. The transferor submitted the grounds on which they seek an exemption. Major grounds being the objective with which the transfer is proposed that is seamless intergenerational transfer of the trust fund in view of the fact that the beneficiaries are family members being non-commercial transaction. The other ground being that the ownership or control of the target company had not been affected. Also, pre and post-acquisition shareholding of promoter group would remain same. The acquirer/transferee confirmed that they have adhered to the Guidelines outlined in the Schedule to the SEBI Circular. Board noted all the grounds and ordered that the Target Company shall continue to be in compliance with the minimum public shareholding requirements under the Securities Contracts Regulation Rules, 1957 and the SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015.

Board was of the view that the exemption prayed by the applicants should be granted with certain conditions which the transferor and transferee needs to fulfill. Therefore, exemption from application of Section 3(2) was granted. [Proposed Acquisition of Shares and Voting Rights in Target Company FDC Ltd., In re,2018 SCC OnLine SEBI 156, order dated 21-08-2018]