Bombay High Court
Case BriefsHigh Courts

Bombay High Court: Sandeep K. Shinde, J., held that Special Court which is to try offences under the Insolvency and Bankruptcy Code, 2016 is the Special Court established under Section 436(2) (b) of the Companies Act, 2013 which consisted of Metropolitan Magistrate or Judicial Magistrate First Class.

The present petition was filed assailing the order “Issue Process” under Section 73(a) and Section 235A of the Insolvency and Bankruptcy Code, 2016 passed by the Additional Sessions Judge on a complaint filed by the Insolvency and Bankruptcy Board of India.

Challenge

The Additional Sessions Judge does not have jurisdiction to entertain the complaint filed by the respondents.

Analysis, Law and Decision

Section 236 of the Insolvency and Bankruptcy Code empowers the Central Government or Board to file a complaint against a person/s having contravened, one of the penal provisions of the I.B. Code constituted or established under the provisions of the Companies Act, 2013.

The Companies Act (17th amendment) sought to establish two different classes of a Special Court; (a) a Single Judge holding office as Session Judge or Additional Sessions Judge and (b) Metropolitan Magistrate or Judicial Magistrate First Class; who shall be appointed by the Central Government with concurrence of the Chief Justice of the High Court within whose jurisdiction, the Judge to be appointed is working.

Which of the above two classes is empowered to try the offences under the I.B. Code?

The plain reading of clause (a) of subsection (2) of Section 435 of the Companies Act in no uncertain terms implies or suggests that the Special Court consists of Judge holding office as a Sessions Judge is empowered to try the offences under Section under this Act”. (emphasized)

‘Under this Act’ the phrase would mean the offences committed under the Companies Act.

Hence, the Companies Act cannot be tried by the Special Court established under clause (a) of sub section 2 of Section 435.

High Court opined that the clear mandate of the legislature was that the “Special Court” comprising of a Sessions Judge or Additional Sessions Judge was only to try offences under the Companies Act, 2013 itself which carry a punishment of imprisonment of 2 years or more.

However, it is clear that “Special Court”, comprising of a Metropolitan Magistrate or Judicial Magistrate First Class is to try “other offences” and the other offences would be offences under the I.B. Code and offences under the CA 2013 but carrying punishment of imprisonment of less than 2 years.

Elaborating further, the Court expressed that Section 236(3) of the I.B. Code creates a deeming fiction that the Special Court trying offences under the I.B. Code shall be deemed to be Court of Sessions.

In view of the above discussion, the impugned proceedings instituted by the respondents in the Court of Additional Sessions Judge were not sustainable for want of jurisdiction. [Satyanarayan Bankatlal Malu v. IBBI, 2022 SCC OnLine Bom 310, decided on 14-2-2022]


Advocates before the Court:

Mr. Amir Arsiwala a/w. Mr. Piyush Deshpande a/w. Mr. Farzeen Pardiwala, Advocate for the Petitioners.

Mr. Pankaj Vijayan a/w. Mr. Mohammed Varawala, Advocate for Respondent no.1.

Mr. Y.M. Nakhawa, APP for State-Respondent no.2.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: V.G. Arun, J., allowed the instant petition whereby the petitioners had sought for the issuance of directions to the Sessions Judge for the release of their passports.

The Petitioners were accused of offences punishable under Sections 341, 324 and 308 r/w 34 of Penal Code, 1860. Regarding which the trial was pending before the Assistant Sessions Court. The petitioners were granted bail on the condition they should surrender their passports before the court. Accordingly, petitioners had surrendered their passports.

The grievance of the petitioners was that they were all ordinary workmen employed abroad and unless the passports were released and the petitioners permitted to go abroad for re-joining duty, they would be put to extreme prejudice and loss. It was submitted that though, initially, the petitioners had kept away during the committal proceedings; they had surrendered at a later stage.

The Bench noticed that the Magistrate had granted bail to the petitioners after going through the wound certificate of the de facto complainant, and finding the injuries to be minor. Contrary to which, the Assistant Sessions Judge referred to the nature of the offences and the behaviour of the accused as serious to deny the relief.

On finding the observation regarding the serious nature of the offence to be contrary to the findings injury report suffered by the de facto complainant, where injuries were reported of being minor in nature. Further, observing that the petitioners had surrendered before the jurisdictional Magistrate Court during the committal proceedings and had complied with the bail conditions. That the Assistant Sessions Court was yet to frame charge and that the petitioners were prepared to comply with any condition to be imposed by the court, the Bench stated, “The petitioners are labourers and their livelihood will be lost, if they fail to report back for duty.”

In the light of the above, the Bench ordered the Assistant Sessions Court to release all the passports surrendered by the petitioners for a period of one year, subject to the following conditions:

  • The petitioners should execute a bond for Rs.50,000, (Rupees fifty thousand only) each with two solvent sureties.
  • Should submit an affidavit undertaking to appear before the Trial Court as and when directed, which should contain the petitioners’ foreign address, mobile number, email address and other contact details.
  • Petitioners should engage Counsel to represent them in court, during their absence.

[Rahim P. v. State of Kerala, Crl.M.C.No.1775 of 2021, decided on 29-03-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court:

For the Petitioners: Adv. Ajai Babu and Adv. Rosin Joseph

For the Respondents: Sr. .PP. C.S. Hrithwik and ASG. P.Vijayakumar

Case BriefsDistrict Court

Court of Sessions Judge, Gondia: Suhas V. Mane, Sessions Judge, remanded the matter to Magistrate on noting no foundation in the Magistrate’s observation.

Factual Matrix

Applicant who was the husband of respondent 1 had filed a missing complaint stating that his wife was missing and he suspected that respondent 2 kidnapped her. But no cognizance for the same was taken by the Police, therefore complainant approached the Magistrate by filing the application under Sections 97 and 98 of the Code of Criminal Procedure for issuing search warrant.

It was alleged in the application that respondent 2 seduced respondent 1 and forced her to flee away with him. Further, it was also alleged that respondent 2 wrongfully confined respondent 1.

Magistrate rejected the application by observing that the applicant mentioned in the report that there was a love affair between respondent 1 and 2. Prima Facie it was revealed that respondent 1 voluntarily went with respondent 2.

Magistrate did not issue search warrant, though it was alleged that his wife was wrongfully confined.

“…provisions of section 97 and 98 of the Code of Criminal Procedure are identical with the provisions of Article 32 of the Constitution of India as there are concerns with life of person and liberty of the person.”

 Revision Petitioner submitted that rejection of application was not legal and proper, hence the request was made to set aside the order and allow the revision petition.

Bench laid down the following points for consideration:

1] Whether the impugned order passed by Judicial Magistrate First Class, Tiroda in Miscellaneous Criminal Case No. 58/2021 dated 02-03-2021relating to rejecting the application, is legal, valid and proper?

2] Whether any interference is required in the said order?

3] What order?

Bench noted that when it was alleged in the application that respondent 2 seduced and wrongfully confined respondent 1 in a secret place, then without recording the statement of respondent 1, how did the magistrate conclude that prima facie it reveals that respondent 1 voluntarily went with respondent 2.

The above observation of Magistrate had no foundation, he ought to have followed the procedure when it was pointed out to him that the applicant’s wife had been wrongfully confined by a particular person.

Hence, Magistrate erred and did not follow proper procedure, therefore interference was required.

Adding to the above Sessions Judge expressed that issuance of search warrant directing police to produce respondent 1 before the Magistrate is necessary and after that recording of respondent 1’s statement.

Conclusion

  • Revision Petition was allowed.
  • Order of the Magistrate was set aside.
  • Matter remanded to the Judicial Magistrate with direction that he shall issue a search warrant and after production of respondent 1 appropriate steps may be taken.

[Kavidas v. Varsha, Criminal Revision Application No. 9 of 2021, decided on 18-03-2021]


Advocates who appeared before the Court:

Advocate Shri. S. J. Chavhan, for Petitioner. Ld. APP Shri Khandelwal for Respondents.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: While deciding the instant petition challenging the appointment of a District and Sessions Judge, the Bench of P.V. Asha, J., placing reliance upon Dheeraj Mor v. High Court of Delhi, 2020 SCC OnLine SC 213; set aside the appointment as the appointee was not anadvocate’ as on the date of his appointment as per the requisite and was instead in Judicial Service as on the last date fixed for completing step 2 of the process of the recruitment.

As per the facts, the High Court of Kerala issued Notification dated 21-11-2017 inviting applications for appointment as District and Sessions Judges in the Kerala Higher Judicial Service by direct recruitment from the Bar. After the written examination and interview, the High Court published list of candidates who qualified in the examination. On 08-06-2019 the High Court issued notice that the candidates who were Judicial Officers on the date of publication of recruitment notification would not be considered for appointment as District and Sessions Judges.

However, the respondent was appointed as a Sessions Judge against the NCA vacancy of Ezhavas/ Thiyyas/ Billavas. Petitioner’s counsel S. Sreekumar argued that in the aforementioned Dheeraj Mor case the Supreme Court made it clear that the quota set apart for direct recruitment cannot be filled up by those in service and that a candidate submitting application shall continue to be a practising advocate as on the date of his appointment, therefore the petitioner should be appointed in the place of the respondent/ appointee. The respondent’s counsel S.P.Aravindakshan Pillai, contended that the eligibility of a candidate is determined as on the date of final submission of his application. It was stated that since he had already completed the process of submitting application. As per the respondent crucial date for determining eligibility was 27-12-2017 which was the last date for submitting application and that he was a practising Advocate till he joined as Munsiff-Magistrate,  and started discharging his duties on 12-02-2018. The respondent contended that the date and the requirement was that candidates should possess the qualifications with respect to age and 7 years of practice as advocate as on 01-01-2017.

Perusing the contentions, the Court observed that petitioner had all the qualifications as was required and mentioned by Kerala State Higher Judicial Service Rules i.e. age between 35-45; a practising Advocate having a standing of not less than 7 (seven) years of practice as on the first day of January 2017. The petitioner was inducted in Kerala Judicial Service as Munsiff-Magistrate only with effect from 12-02-2018 and hence continuing as an Advocate till the charge of the post was taken on 12-02-2018.

Therefore, even on extension of the date of closure of step II process from 11-01-2018 to 22-01-2018, the petitioner continued to be an Advocate. The Court further observed that the concerned paragraph in the Notification and Rules containing the clause “save as otherwise provided” cannot apply to eligibility regarding qualification. It can only be with respect to requirements for which no date or condition is provided. Therefore, it cannot be said that eligibility with respect to qualification is to be determined as on the date of closure of step II process. The Court also noted that in Dheeraj Mor case, the Supreme Court clarified the position stating that, “for direct recruitment as District Judge as against the quota fixed for the advocates/pleaders, incumbent has to be practicing advocate and must be in practice as on the cut-off date and at the time of appointment he must not be in judicial service or other services of the Union or State. For constituting experience of 7 years of practice as advocate, experience obtained in judicial service cannot be equated/ combined and advocate/pleader should be in practice in the immediate past for 7 years and must be in practice while applying on the cut-off date fixed under the rules and should be in practice as an advocate on the date of appointment.” After examining the concerned Rules and the Supreme Court decision, the Court deemed it fit to allow the petition and held that as the petitioner is entitled to be appointed in place of the respondent. [K. Deepa v. State of Kerala, 2020 SCC OnLine Ker 2769 , decided on 14-07-2020]    

Case BriefsHigh Courts

Bombay High Court: A Division Bench of S.S. Shinde and N.B. Suryawanshi, JJ., dismissed a petition whereby the petitioners sought their release by invoking the writ of Habeas Corpus on the ground that their judicial custody was authorised beyond a period of 15 days he designated court, which is contrary to the mandate of Section 309(2) CrPC.

The petitioners were accused in a criminal case registered under various provisions of IPC and the MPID Act, 1999. The main ground pressed in to service by Subhash Jha and Harekrishna Mishra, Advocates for the petitioners, was that the proviso to Section 309(2) CrPC provides for remand of the accused of a term not extending 15 days at a time. In the present case, from time to time, the judicial custody of the petitioners was extended beyond 15 days, which according to them was in violation of Article 21 of the Constitution. Per contra, M.M. Deshmukh, APP for the State, opposed the writ petition.

Perusing Section 309(2) along with its first proviso, the High Court noted that the proviso to Section 309(2) CrPC carves out the exception to the general provision thereby imposing restriction that no Magistrate shall remand the accused persons to custody under Section 309(2) CrPC for a term exceeding 15 days at a time.

However, applying the settled principles of interpretation of statutes, the Court went on to observe: “In our considered opinion, the restrictions imposed on the Magistrate by this proviso are not applicable to the Court of Sessions.” It was further stated: “…on plain reading of section 309(2) of CrPC and its proviso, we are of the considered view that the said provision is clear and unambiguous and the distinction enshrined in provision cannot be read in the main provision of section 309(2) of CrPC to put limitation on the power of the trial Court while exercising the powers under section 309(2) of CrPC”

Also, relying on Saurabh Kumar v. Koneila Jail, (2014) 13 SCC 436 and State of Maharashtra v. Tasneem Rizwan Siddiquee, (2018) 9 SCC 745, the High Court reiterated that writ of Habeas Corpus is not maintainable against the judicial order remanding the accused into the custody and appropriate remedy is to seek bail.

The High Court, therefore, held that the petitioners were entitled to the writ of habeas corpus and their remedy lie elsewhere. Resultantly, the instant petition was dismissed. [Harshad Dinanath Bari v. State of Maharashtra, 2019 SCC OnLine Bom 5701, decided on 18-12-2019]

Case BriefsHigh Courts

Karnataka High Court: K.N. Phaneendra, J. while allowing the present appeal against the order of the II Additional District and Sessions Judge directed the Sessions Judge to refer the matter to the Juvenile Justice Board as the said order passed by the Sessions Judge is not sustainable either in law or on facts.

Background

In the present case, petitioner had been charge-sheeted for the offence punishable under Sections 36 6A and 376 of Penal Code, 1860 and also under Section 6 of the Prevention of Children from Sexual Offences Act (POCSO Act).

An application was filed during the pendency of the above-stated proceedings, wherein it was stated that the accused was not of 18 years as on the date of the alleged incident and he was a Juvenile. The alleged incident was that the accused had kidnapped and abducted the victim girl and committed sexual intercourse with her, for which Sessions Judge passed an order that the accused was below the age of 18 years and above the age of 16 years. Therefore, the application filed by the accused was rejected.

The said order of the Sessions Judge was challenged before this Court and this Court through an order had allowed the said appeal while directing the Sessions Court to enquire into the claim regarding the age of the accused as to whether the matter is triable by the Juvenile Justice Board or by this Court in view of Sections 14, 15 and 18 of the JJ Act.

Sessions Judge passed the impugned order after the remand, in the said order, the age of the boy was considered under the provision of Section 34 of JJ Act and after perusal of the Aadhaar Card and Birth Certificate. Thus, the trial court came to the conclusion that, the accused was a minor on the date of the alleged incident.

It has also been observed that though Sessions Judge came to the conclusion that the accused was a minor but without referring to the provisions of Sections 15 and 18 of the JJ Act.

Adding to the above stated, Sessions Judge also stated that the accused committed heinous offence and it is purely conferred on the Special Court to decide the age under Section 34 of the JJ Act and therefore, the Sessions Court has jurisdiction to proceed with the trial. Accordingly, the said application was dismissed and against the order present appeal was preferred.

Observation and Conclusion

Sessions Judge did enquire into the matter and came to the conclusion that the accused was above the age of 16 years and below 18 years, but without referring to the Sections 15 and 18 of the Act, the provisions have been mechanically mentioned in its’ order.  Only on the ground that the offence is heinous in nature, Sessions Judge got the power to proceed with the trial.

Now, noting the above-stated position, High Court meticulously looked at Section 15 and 18 of the JJ Act in order to consider whether the Sessions Judge has the power to pass such an order holding the offence heinous and that the accused can be tried by Sessions Court itself.

The Court thus stated that, if the Board is satisfied on preliminary assessment and arrived at a conclusion that the Board can on its own dispose of the case, then on such eventuality; board shall not send the Juvenile to Sessions Court for trial. Therefore, it is clear that such power is exclusively vested with the Board to pass such an order.

Therefore, Court held that Sessions Judge or the Special Judge or the Child-Friendly Court, presided over by the Sessions Judge have absolutely no power to pass any order under Section 15 of the Act. It is the statutory power vested with the Boards. [Puneet S. v. State of Karnataka, 2019 SCC OnLine Kar 1835, decided on 23-09-2019]


For further reading: