Case BriefsHigh Courts

Uttaranchal High Court: Sharad Kumar Sharma, J. contemplated a criminal revision petition where the issue discussed was related to Section 311 CrPC, it was stated that the Section gave an exclusive power to the Court as defined under the CrPC that it may at ‘any stage’ of an inquiry, trial or other proceedings, and the Court may summon any person as a witness or examine any person in evidence though not summoned as a witness in the earlier set of proceedings.

The counsel for the petitioner challenged the order passed by the Special Judge, POCSO in another case State v. Anand Rana, where the court in trial, exercised its power under Section 311 CrPC for purpose of summoning of the witnesses. It was further alleged that, at the stage, when the proceedings were pending consideration before the court, the prosecution had moved an application, by invoking the provisions of Section 311 CrPC for summoning some of the witnesses at the stage when the trial was pending consideration before the Sessions Court, before it came to any logical conclusion with regard to the offences, which were levied against the accused revisionist.

On the contrary the respondent contended that by the application, preferred under Section 311 of CrPC gave an avenue and ample of powers to the Trial Court to exercise its domain at any stage of the proceedings, to call upon the witness, which the Court considers it to be necessary to be considered for the purposes of better elucidation of the controversy and for settling of the offences as against the present accused persons by their examination and considering their statements before drawing any logical conclusion.

The Court observed that the arguments of the petitioner was not sustainable because it ran contrary to the very spirit and purpose for which legislature had drafted Section 311, “it gave ample of power to the Trial Court to summon and examine the witness which were necessary for the purpose of determination of the issue involved before in the trial at any stage of the proceeding, which according to the Court, included the proceedings even after the closure of the prosecution witnesses or the stage of 313 CrPC.

Another argument raised by the petitioner was that to invoke an application under Section 311 there has had to be a reasonable ground which had to be expressed by the prosecution, to this the Court observed that, it was always a subjective matter for consideration, which depended upon the perception of each and every court as per the requirement of the case and, according to its own wisdom and the intellect which the Court possessed. The Court was of the view that irrespective of whatsoever the logical reasoning was assigned by the prosecution for the purposes of invoking Section 311 CrPC, the accused, who was apprehending the examination of additional witnesses for the purposes of establishment of the offence levied against him, it became inevitable for him to take a stand that the reason given in the application did not justify the invocation of the provisions contained under Section 311 CrPC.

The Court, further mentioned that it did not want to interfere in the challenge because the basic purpose and intention as per the language of Section 311 CrPC was to equip the Court with sufficient power to summon witnesses.

Lastly the argument raised by the petitioner was that the invocation of Section 311 CrPC by prosecution cannot be utilized to fill in the lacunae of the evidence which had already been adduced before the Trial Court by examination of additional witnesses by summoning them under Section 311 of the CrPC the Court to this particular contention stated that at the stage when the Court was under consideration of the application under Section 311 CrPC and considered the justification of summoning the witnesses at the stage when Court decided to summon a witness under Section 311 CrPC, it cannot be a stage where a petitioner had an argument that the prosecution intended to fill in lacunae of the trial, which was pending consideration before the Court. Hence, the revision was dismissed.[Kaushik Bisht v. State of Uttarakhand, 2019 SCC OnLine Utt 794, decided on 30-07-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: Vivek Rusia, J. refused to transfer the matrimonial dispute from Mandsaur to Gwalior.

The applicant/wife has filed the present petition under Section 24 of the CPC seeking transfer Matrimonial Case No.208/2017 from Family Court, Mandsaur to Family Court, Gwalior. The petition was filed by the respondent under Section 9 as well as under Section 13 of the Hindu Marriage Act, 1955 before the Family Court, Mandsaur. After receipt of summoning the petitioner has approached this Court by way of filing petition under Section 24 of the CPC seeking transfer mainly on the ground that being a lady it is not possible for her to travel all the way from Gwalior to Mandsaur and her parents and a two-year child is dependent on her.

The Court observed that the rule is that the convenience of a wife is required to be seen in the case of transfer of matrimonial cases. However, in the present case, the applicant is not a housewife but she is holding a higher post than the husband. She is working as Sub Divisional Officer in the Public Health Engineering Department. Further, in a matrimonial case, the presence of parties are not required at every stage, they are required to be present in Court only at the time of conciliation or evidence. Therefore, the wife cannot pray for transfer of all the matters to the place where she is residing as per her own convenience. The Court, therefore, refused to transfer the petition to the Gwalior Family Court.[Monika Gautam v. Jitendra, 2019 SCC OnLine MP 1896, decided on 01-08-2019]

Case BriefsHigh Courts

Delhi High Court: Sunil Gaur, J. allowed a petition filed against the order of the trial court whereby it had passed summoning orders against the petitioners in a complaint filed for committing of an offence under Section 138 (dishonour of cheque) of the Negotiable Instruments Act, 1881.

The petitioners, represented by Senior Advocate N. Hariharan with Ashwani Kr. Dhatwalia, Iti Sharma and Kuljeet Rawal, Advocates, prayed for quashing the summoning orders as well as the complaint filed under Section 138. They relied on Indus Airways (P) Ltd. v. Magnum Aviation (P) Ltd.,(2014) 12 SCC 539 for submitting that the cheques in question were security cheques, they disputed that there was no existing debt or liability. Per contra, Ashish Pratap Singh and Deepa Sharma, Advocates appearing for the complainant submitted that the cheques in question were towards an existing liability and were not security cheques.

The High Court referred to Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749 quashed the complaint and the summoning order, as it was found that there were no averments in the complaint on the basis of which a complaint could be maintained. Further, in SMS Pharmaceuticals Ltd. v. Neeta Bhalla, (2005) 8 SCC 89 reiterated that in the case of Section 138, the essential averments are to be made in the complaint. Again, in Omniplast (P) Ltd. v. Standard Chartered Bank, (2015) 15 SCC 693, it was declared that in the absence of requisite pleadings in respect of the transaction concerned, quashing of the complaint of Section 138 NI Act is justified.

In the present matter, after perusing the record, the Court was of the opinion that the necessary ingredients to maintain the complaints in question were lacking, thereby rendering the impugned order unsustainable and so, the continuance of proceedings arising out of the complaints in question would be an exercise in futility. Resultantly, the impugned complaints and the summoning orders were quashed.[Shivom Minerals Ltd., v. State, 2019 SCC OnLine Del 9329, decided on 17-07-2019]

Case BriefsSupreme Court

Supreme Court: In a case where the Allahabad High Court passed orders from time to time to secure presence of the public officers, the bench of SK Kaul and Hemant Gupta, JJ held that the High Court was not justified in doing so as,

“The practice of summoning officers to court is not proper and does not serve the purpose of administration of justice in view of the separation of powers of the Executive and the Judiciary. If an order is not legal, the Courts have ample jurisdiction to set aside such order and to issue such directions as may be warranted in the facts of the case.”

The Court said that the officers of the State discharge public functions and duties and the orders are generally presumed to be passed in good faith unless proved otherwise. The officers pass orders as a custodian of public money. Therefore, merely because an order has been passed, it does not warrant their personal presence.

“The summoning of officers to the court to attend proceedings, impinges upon the functioning of the officers and eventually it is the public at large who suffer on account of their absence from the duties assigned to them.”

The Court was hearing the case where the Divisional Director, Social Forestry Division Agra had passed an order on 19.11.2008 that the respondent is not eligible for regularisation/equal pay. The said order was passed based on the Supreme Court ruling in State of U.P and Others. vs. Putti Lal, (2006) 9 SCC 337 where it was held that the daily wagers are entitled to minimum pay scale as is being received by their counter-parts in the Government and would not be entitled to any other allowances or increment so long as they continue as daily wagers. The respondent instead of challenging the abovementioned order declining the claim for regularisation and/or minimum of pay scale, filed a Contempt Application.

The Court held that the grievance regarding regularization of the service on account of a break in service could not have been taken up in Contempt proceedings, when such issue has attained finality in the High Court. Allahabad High Court had passed an order in Visheshwar vs. Principal Secretary Forest Anubhag[1], wherein, it was held that artificial break in the case of regularization has to be ignored.

[N.K. Janu, Deputy Director Social Forestary Division, Agra v. Lakshmi Chandra, 2019 SCC OnLine SC 518, decided on 10.04.2019]


[1] Civil Misc. Writ Petition No. 47568 of 2002 decided on 29.11.2004

Case BriefsHigh Courts

Madras High Court: G.K. Ilanthiraiyan, J., refused to quash the summons issued against Nakkheeran Gopal, Editor, Publisher and Printer of Nakkheeran Publications that unraveled the recent Pollachi serial sex scandal case. The Court, however, modified the summons.

The summons was issued against him pursuant to 2 FIRs registered for various offences punishable under IPC, Information Technology Act, and T.N. Women Harassment Act. The summons was issued by Superintendent of Police, CB CID, South Zone, having his office at Egmore, Chennai. However, the petitioner was summoned for enquiry at Camp Office, Coimbatore.

P.T. Perumal, counsel for the petitioner, submitted that petitioner uploaded his speech on Nakheeran online magazine and its YouTube page in which he narrated the incident, the personalities involved, and the police coverup. The report was also made about the involvement of two sons of the T.N. Legislative Assembly Deputy Speaker. FIR was lodged by the Deputy Speaker and the summons was issued. The petitioner challenged the summons.

The High Court noted that the summons impugned in the petition only called the petitioner for an enquiry. Also, admittedly, that he was not called as an accused. Therefore, the Court was not inclined to quash the summons. However, it was held that the petitioner had valid apprehension by the politicians and police officials at Coimbatore, and there was a fair chance of an untoward incident. Therefore, the Court modified the summons and directed the petitioner to appear before the Superintendent of Police. CBCID, South Zone at his office in Egmore, Chennai. [Nakkheeran Gopal v. State, 2019 SCC OnLine Mad 892, Order dated 29-03-2019]

Case BriefsSupreme Court

Supreme Court: In case where a man tried to rope in other relatives of his wife in a criminal proceeding that he had initiated against his in-laws, the bench of Dr. DY Chandrachud and Hemant Gupta, JJ held that mere disclosing the names of the appellants cannot be said to be strong and cogent evidence to make them to stand trial for the offence under Section 319 of the Code.

Factual Background:

  • The complainant had alleged that his wife lived with her parents, despite several attempts on his part to bring her with him and that his mother-in-law, father-in-law and brother-in-law threatened that their daughter will not live with him and demanded Rs. 30 lakhs towards maintenance otherwise they will lodge a dowry case against him and his mother.
  • He filed the criminal case against his in-laws and other relatives of his wife after his in-laws, along with 47 other relatives, forcibly entered his house and threatened to kill him if he did not pay Rs. 30 lakhs. They also tried to attack him with sickles and sticks.
  • Though in the FIR, Complainant had mentioned that 15 women and 35 men came by vehicles but the names of 11 persons alone were disclosed in the FIR.
  • He then filed an application under Section 319 of the Code to summon the 20 accused persons named in the application as additional accused.

Ruling:

The Court noticed that the present case was basically a matrimonial dispute wherein, the husband who is the Complainant has levelled allegations against the wife and her other family members. In the statements recorded under Section 161 of the Code during the course of investigation, the Complainant and his witnesses have not disclosed any other name except the 11 persons named in the FIR. Thus, the Court said:

“the Complainant has sought to cast net wide so as to include numerous other persons while moving an application under Section 319 of the Code without there being primary evidence about their role in house trespass or of threatening the Complainant. Large number of people will not come to the house of the Complainant and would return without causing any injury as they were said to be armed with weapons like crowbar, knife and ripper etc.”

The Court also noted that the allegations in the FIR were vague and could be used any time to include any person in the absence of description in the First Information Report to identify such person. Stating that the additional accused cannot be summoned under Section 319 of the Code in casual and cavalier manner in the absence of strong and cogent evidence, the Court said:

“Under Section 319 of the Code additional accused can be summoned only if there is more than prima facie case as is required at the time of framing of charge but which is less than the satisfaction required at the time of conclusion of the trial convicting the accused.”

[Periyasami v. S. Nallasamy, 2019 SCC OnLine SC 379, decided on 14.03.2019]

Case BriefsHigh Courts

Bombay High Court: S.J. Kathawalla, J. dealt with some ingenious arguments led by a battery of advocates representing both the sides, while sitting in a matter concerning the interpretation of Order 8 CPC (written statement, set off and counter-claim). 

It is pertinent to note at the very outset that the Proviso to Order 8 Rule 1 (written statement), as added by the Commercial Courts Act, 2015, bars the defendant in a commercial suit from filing the written statement (“WS”) beyond a period of 120 days from the date of service of summon. 

Several defendants in various commercial suits before the Commercial Division of the High Court failed to file their WS within the stipulated period of 120 days. Subsequently, these defendants took out various Notice(s) of Motion seeking condonation of delay in filing their respective WS. At the hearing of motions, the plaintiffs opposed taking on record any WS in view of the newly introduced Proviso to Order 8 Rule 1. 

Consequently, the Court published an open court notice framing a question of law in order to settle the controversy in all such matters: Whether in view of the amendment to CPC by Commercial Courts Act, 2015, the defendants can be allowed to file WS after 120 days from the date of service of the writ of summons in a commercial suit?

Extensive arguments were advanced by counsels appearing for both sides. After considering all the arguments; and referring to several decisions of the Supreme Court; and on a holistic reading of various provisions of CPC and the Commercial Courts Act, Justice Kathawalla reached the conclusion: “In Commercial Suits, a written statement by the defendant cannot be taken on record after the expiry of 120 days from the date of service of the writ of summons”. 

It is interesting to look at the manner in which the course of arguments on various points developed in the present matter. Equally important is to know how the Court dealt with the contentions raised by various counsels and the manner in which the question of law was decided along with the necessary clarifications. 

Commercial Courts Act, 2015

It is useful to note that the primary aim and object of the Commercial Courts Act was to provide speedy disposal of high-value commercial disputes in order to reduce the pendency of cases. The Act establishes Commercial Courts at the district level and Commercial Divisions in various High Courts (including those having ordinary original civil jurisdiction), to deal with commercial disputes of a “specified value“, as may be notified by the Central Government. 

Justice Kathawalla observed, “In so far as the Commercial Courts Act is concerned, there can be no manner of doubt that the paramount intent of the legislature was to reduce delay in commercial cases and improve our country’s image from the perspective of ease of doing business in India”.

SCG Contracts (India) (P) Ltd. v. K.S. Chamankar Infrastructure (P) Ltd.

During the intervening period that arguments concluded and the date of the order, the Supreme Court in SCG Contracts (India) (P) Ltd. v. K.S. Chamankar Infrastructure (P) Ltd., 2019 SCC OnLine SC 226 considered the subject provision of Order 8 Rule 1. 

Relying on SCG Contracts, Justice Kathawalla observed, The Apex Court’s pronouncement, in my opinion, concludes the interpretation of the newly introduced amendments to Order 5 Rule 1 and Order 8 Rules 1 and 10 in so far as they are applicable to commercial suits. The Apex Court, whilst reaffirming the view of the Delhi High Court has held that in commercial suits, a written statement cannot be taken on record after the expiry of 120 days from the date of service of the summons”. 

In addition to that, according to Justice Kathwalla, “even a literal reading of the amended provisions of Order 8 Rule 1 suggest that not only are penal consequences provided for upon the defendant failing to file its written statement; but the discretion of the Commercial Court/Commercial Division to take on record a written statement thereafter has also been taken away”. 

Application of the Mischief Rule

Nausher Kohli, Advocate for the plaintiff in one of the cases argued that for a true and correct interpretation of the Commercial Courts Act, the High Court ought to use the Mischief Rule of interpretation of a statute as laid down in the Heydon’s case (1584) 3 Co. Rep. 7a, p. 7b: 76 ER 637 decided in the year 1589, and thereby suppress the mischief of delay in filing of WS whilst advancing the remedy of expeditious disposal of commercial suits. Heydon’s case has acquired the status of a classic rule as recorded by the Supreme Court in Kanai Lal Sur v. Paramnidhi Sadhukhan, AIR 1957 SC 907. 

Considering the said argument, Justice Kathawalla was of the opinion, “Admittedly, the mischief prior to the Commercial Courts Act was belated filings of written statements on flimsy and frivolous grounds. It is for this reason that penal consequences have now been provided and the discretion of the court taken away”.

Amendments introduced in Order 8 Rule 1 are mandatory

Specifying the mandatory nature of the amendments, the Court after considering SCG Contracts and the Mischief Rule, stated, “the Proviso to Order 8 Rule 1 introduced by the Commercial Courts Act, is mandatory. In this respect, I am bound by the view of the Apex Court. I, therefore, reiterate that the amendments introduced by the Commercial Courts Act to Order 5 Rule 1 and Order 8 Rules 1 and 10 are mandatory in nature”.

Commercial Courts Act vis-a-vis Bombay High Court (Original Side) Rules

Senior Advocate J.P. Sen, Senior Advocate V. Anturkar and Zal Andhyarujina, Advocate representing different defendants argued that the High Court can still exercise its powers under the Bombay High Court (Original Side) Rules, 1980 notwithstanding the Commercial Courts Act, to condone the delay and take on record a WS in a commercial suit even after the expiry of 120 days. Per contra, Mr Kohli argued that this contention failed to stand scrutiny when read with the explicit provisions of the Commercial Court Act. Relying on Sections 16 and 21 of the Commercial Courts Act, he argued that the amendments brought forth by the Commercial Courts Act to CPC, ought to prevail over the Bombay High Court (Original Side) Rules in instances where the provisions of these Rules are in conflict with the provisions of CPC as amended by the Commercial Courts Act.

Holding that the provisions of the Commercial Courts Act have primacy over the Bombay High Court (Original Side) Rules, the Justice Kathawalla observed,  “I am concerned with a dispute between 2 special acts, viz. the Bombay High Court (Original Side) Rules and the Commercial Courts Act. … the Commercial Courts Act is a special act promulgated several decades after the Bombay High Court (Original Side) Rules and would trump the provisions of the former in the event of a conflict”. While concluding the discussion on this point, the Court held, “this Court cannot exercise its powers under the Bombay High Court (Original Side) Rules to condone the delay in filing of a written statement over and above the statutorily mandated period of 120 days”.

“Rule” versus “Rules”

Another argument of the defendants was that Section 16 of the Commercial Courts Act uses the phrase “Rule of the jurisdictional High Court”. According to them, the word Rule has not been defined under the Commercial Courts Act. In this situation, they relied on Section 2(2) of the Commercial Courts Act which provides that words used and not defined in the Commercial Courts Act but defined in CPC, shall have the same meaning as assigned to them in CPC. They then placed reliance on Section 2(18) CPC where rules has been defined. That section had been interpreted by the Supreme Court in Iridium (India) Telecom Ltd. v. Motorola Inc., (2005) 2 SCC 145 to exclude the rules of the High Court on its Original Side. They hence argued that the phrase “Rule of the jurisdictional High Court” in Section 16 of the Commercial Courts Act does not include the Bombay High Court (Original Side) Rules. 

In so far as this submission is concerned, the Court noted that Section 16(3) in fact uses the word Rule as opposed to rules in Section 2(18) CPC. In fact, the term rule finds reference under Section 3(51) of the General Clauses Act, 1897 which reads: 

 (51) “rule” shall mean a rule made in exercise of a power conferred by any enactment, and shall include a Regulation made as a rule under any enactment;

Hence, Justice Kathawalla did not agree with the defendants that the word Rule as used in Section 16(3) is the same as defined under Section 2(18) CPC and does not, therefore, include the High Court’s Original Side Rules. On the contrary, given the scheme of the Commercial Courts Act and especially Section 16, it would appear that Section 16(3) in fact covers the Bombay High Court (Original Side) Rules.

In summation, the Court held, “only those rules of the Bombay High Court (Original Side) Rules which are in conflict with the provisions introduced by the Commercial Courts Act, will stand superseded by the introduction of the Commercial Courts Act. All other rules (which are not in conflict with the provisions introduced by the Commercial Courts Act) will continue to apply to commercial as well as non-commercial suits”.

Interplay of Order 8 Rule 1 with Order 8 Rule 9 

In addition to the aforesaid arguments, Rashmin Khandekar, Firdosh Pooniwala and Rohan Kelkar, Advocates argued that it is only the right of the defendant to file a WS that is forfeited under Order 8 Rule 1, whereas Order 8 Rules 9 and 10 do not circumscribe the power of the Court to take on record a belated WS despite the amendments introduced by the Commercial Courts Act. Thus, the argument flowed that the Court can exercise its discretion under Rule 9 to take on record a belated WS.

Mr Kohli submitted that the arguments put forth by the defendants would result in absurdity or an anomalous situation. He argued that such interpretation ought to be rejected. He further argued that if Order 8 was given the same wide and unbridled interpretation as was sought to be canvassed by the defendants, the distinction if any between a commercial suit and non-commercial suit would only lie in their respective cause titles. Taking on record a WS under Rule 9 despite the expiry of the stipulated period of 120 days under Rule 1, would effectively negate the scheme, object, intent and purpose of the Commercial Courts Act. 

“A” versus “The”

Mr Kelkar submitted that there is a difference in the WS envisaged under the amended Rule 1 and that under Rules 9 and 10. As per him, a written statement as envisaged under Rule 9 refers to a WS separate from the written statement under Rules 1 and 10 and thus, the bar under Rule 1, if mandatory, applies only to the written statement and not a written statement under Rule 9 and hence, the discretion of the Court to allow for WS is kept alive even after the right of the defendant is closed under Rules 1 and 0.

Rejecting this argument, Justice Kathawalla observed, “While an ingenious argument has been canvassed, if I were to allow it, I would find that my decision would be directly in the teeth of the legislative mandate of the Commercial Courts Act, its provisions and legislative intent. … what has been prohibited from being done directly, cannot be allowed to be done indirectly. If this Court has been expressly divested of its powers to take on record ‘the’ written statement after the expiry of 120 days, allowing the same to be taken on record in another way, i.e. under the cover of it being ‘a’ written statement would be a travesty of procedure as well as a mockery of the legislative mandate. It would be ridiculous to imagine that, what the legislature prohibited in one rule, would be allowed to be circumvented via another rule in the same order of CPC”.

Non-commercial suits

The Court was of the opinion that since the amendment to CPC as applicable to commercial suits has been brought about by a special act, a general rule under Rule 9 would have to yield to it. However, it was clarified that Rules 9 and 10 would continue to be discretionary powers in non-commercial suits to condone the delay in filing of a belated WS as the provisions introduced by the Commercial Courts Act will not apply to non-commercial suits.

Court of Equity

In addition to the above, Mr Kelkar submitted that eventually, the Court is one of equity and that it cannot ignore emergent circumstances that a defendant may undergo due to which it would be unable to file its WS.

The Court noted that the Supreme Court in a catena of decisions has held that considerations of equity cannot be grounds/reasons/justifications to not follow the law as laid down by the legislature. It was of the opinion that no matter how harsh the result, if a statute stipulates that an act must be performed within a certain period of time and provides for no exceptions, then the Courts must not allow such an act to be performed after the expiry of the time mandated by the statute, directly or indirectly.

Plaintiff’s obligation

Considering another important aspect of the matter, the Court was of the view that the provisions of the Commercial Courts Act will be given full credence, only in the event strict timelines are imposed not only on defendants but also on plaintiffs invoking the Commercial Courts Act. It was observed, “If a defendant’s right to file its written statement stands forfeited after the expiry of 120 days, the plaintiff too ought to adhere to strict timelines. Hence, it is recommended that such provisions and rules are introduced so as to ensure that in a commercial suit filed before a Commercial Court/Commercial Division, the plaintiffs are directed to remove all office objections and have the commercial plaint numbered within the time limit so prescribed. … In the event the plaintiff and its advocates fail to adhere to these timelines, the commercial suits so filed and belatedly numbered/served ought to be dismissed without any further reference to the Commercial Court/Commercial Division”.

Parties’ consent cannot vest jurisdiction

Having answered the question of law as above, it was clarified that there may be instances wherein the plaintiff is ready and willing for a belated WS to be taken on record subject to payment of costs. However, it is important to note that parties cannot by consent, vest the court with discretion/jurisdiction/powers which it otherwise is barred from exercising under statute. Jurisdiction can be vested only by statute and not by consent and acquiescence. It is well settled that jurisdiction cannot be conferred on a court by consent, acquiescence or waiver where there is none, nor can it be ousted where there is.

Commencement of 120 days period

The Court thought it necessary to clarify when the aforesaid period of 120 days commences? 

It was stated, “the period of 120 days will commence from the date of service of the writ of summons and not the date a defendant first enters appearance. However, in order to ensure expeditious disposal of commercial suits and in order to save time of this Court as also the office of Prothonotary & Senior Master of this Court, in the event a defendant/its advocate enters appearance and by consent, agrees to waive service, the period of 120 days will commence from the date of such waiver”.

After having an in-depth discussion, the Court delivered the 158-pages long judgment covering the very many aspects on the subject. The matter was disposed of after deciding the question of law in the manner above. [Axis Bank Ltd. v. Mira Gehani, 2019 SCC OnLine Bom 358, dated 27-2-2019]  

Case BriefsHigh Courts

Delhi High Court: The Bench of R.K. Gauba, J. quashed the summoning order passed by Metropolitan Magistrate against the CEO of Swiggy observing that it does not pass the muster of a judicial order.

The incident 

The incident occurred at Delhi-19, a restaurant in Kalkaji, Delhi. The company “Swiggy” is a food aggregator which collects food and beverages from restaurants as per customer’s orders through delivery personnel described as PDP (pick-up and delivery partners). On 14-7-2018, there was a rush of PDPs at Delhi-19 as there was some delay in service by the restaurant. The situation got out of hand inasmuch as the Fleet Manager of Swiggy had to intervene. It was alleged that later some of the PDPs returned and ransacked Delhi-19. In such course, violence erupted and one Kanav Madnani suffered injuries. An FIR was registered on statement of the proprietor of Delhi-19 and after the filing of first charge-sheet was filed against arrested persons. Subsequently, a supplementary charge-sheet was filed on the basis of which CEO of Swiggy (petitioner) was summoned to appear before the Metropolitan Magistrate.

The charge

In the supplementary charge-sheet, the CEO of Swiggy along with others was sought to be put on trial for the offence punishable under Section 109 read with Section 338 IPC. It was indicated that he was negligent in framing the policies with respect to the employment of delivery boys and failed to take preventive steps, thereby having intentionally aided by illegal omission, the commission of offence under the sections mentioned herein.

High Court’s decision

The High Court noted that the petitioner was stationed in Bangalore far away from the Delhi, the place of incident. The court was of the view that having regard to CEO’s role and responsibilities, the Magistrate was expected to subject the entire material presented before him to a closer scrutiny.  It was held that the summoning order did not pass the muster of a judicial order. There was no consideration of background facts or the connection between the offence and role of the CEO. In such circumstances, the summoning order was quashed and the matter was remitted back to MM for fresh consideration.[Sriharsha Majety v. State (NCT of Delhi), 2019 SCC OnLine Del 6730, dated 25-01-2019]

Case BriefsHigh Courts

Delhi High Court: The Bench of Sanjeev Sachdeva, J. without expressing any opinion on merits of the case, directed the trial court to relook at the evidence in order to ascertain whether any ground is made out under Section 319 CrPC to summon any person other than the accused.

Petitioner (accused) had filed an application under Section 319 which gives power to the trial court to proceed against any other person appearing to be guilty of offence. Application was for proceeding against one Ranbir Khatri, Suman, Sahab Singh and Balwan Singh. Petitioner was represented by K. Singhal and Shilpa Goel, Advocates who contended that there was sufficient evidence available on record to show that these persons had committed the offence in the present case. Several submissions were made to show that they were liable to be summoned in the case. Furthermore, it was submitted that the petitioner was innocent and had been falsely implicated. However, the trial court rejected petitioner’s application. Aggrieved thereby, he filed the present revision petition.

The High Court noted that the impugned order was very cryptic and did not advert to any of the allegations raised or submissions made by the petitioner. Notice was also taken of the fact that prosecution as well as defence evidence was over and matter was at final stage of hearing before the trial court. In High Court’s opinion there was need to relook at evidence by the trial court as mentioned above. Therefore, the impugned order was set aside and the matter was remitted back to the trial court. [Pardeep Kumar v. State, 2019 SCC OnLine Del 6497, dated 14-01-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: A Single Judge Bench comprising of Surinder Gupta, J. dismissed an appeal filed against order of the trial court whereby the application filed by the prosecution under Section 311 CrPC was allowed.

The petitioner was facing the trial under Section 18 Narcotic Drugs and Psychotropic Substances Act, 1985.  As per the prosecution, the contraband recovered from the petitioner was initially deposited with MHC Dharam Singh and was later on handed over to HC Kulwant Singh. As such, being a material witness, MHC Dharam Singh was required to be examined to complete the link evidence in the case. The petitioner argued that the prosecution had closed its evidence. Thereafter, statement of the petitioner under Section 313 was recorded. Arguments were partly heard in which the petitioner raised an issue that the link evidence was missing in the case. It was alleged that in order to fill in the lacunae, the application under Section 313 was filed by the prosecution which was allowed by the trial court vide the order impugned.

The High Court perused the facts of the case and noted that it was apparent that the trial court found MHC Dharam Singh as a material witness. The instant was not a case where the petitioner was taken by surprise as the prosecution witness (Investigating Officer) had already disclosed that the case property (contraband recovered) was deposited with MHC Dharam Singh. It was a mere lapse that he was not examined before the conclusion of the prosecution evidence. The Court was of the view that the mere fact that application was moved after arguments had been partly heard or at the stage of defence evidence, is no reason to decline such application or curtail powers of the court to summon material witness. No error was found in the order of the trial court impugned herein. Accordingly, the revision petition was dismissed holding it to be sans merit. [Satyawan v. Vikas,2018 SCC OnLine P&H 1220, dated 01-06-2018]