Himachal Pradesh High Court
Case BriefsHigh Courts

   

Himachal Pradesh High Court: Vivek Singh Thakur, J. dismissed the petition filed under Sec 482 Criminal Procedure Code (‘CrPC') for extension of parole as the right remedy is under Article 226 of Constitution of India.

The instant petition was filed under Section 482 CrPC seeking extension of term of parole granted to the petitioner on medical grounds.

The Court noted that grant of parole to a convict/prisoner is governed by provision of H.P. Good Conduct Prisoners (Temporary Release) Act, 1968 and Rules framed thereunder.

The Court observed that omission or commission on the part of concerned authority in granting or rejecting the claim of a prisoner under H.P. Good Conduct Prisoners (Temporary Release) Rules, 1968 is an administrative action, but not an action governed by provisions of Code of Criminal Procedure or any other Criminal Law and therefore instead of filing petition under Section 482 CrPC, a petition under Article 226 of Constitution of India shall be maintainable.

The Court thus dismissed the petition with liberty to file a fresh comprehensive petition and directed the Authority not to take any coercive action till 15-07-2022.

[Mohd. Margoob v. State of HP, Criminal Misc. Petition (Main) No. 470 of 2022, decided on 21-06-2022]


Advocates who appeared in this case :

Vinod Kumar, Advocate, for the Petitioner;

Hemant Vaid, Advocate, for the Respondent.


*Arunima Boase, Editorial Assistant has reported this brief.

Telangana High Court
Case BriefsHigh Courts

Telangana High Court: Lalitha Kanneganti, J., disposed of the petition with liberty to the petitioner to avail appropriate remedy.

The instant writ petition was filed questioning the action of the respondent 2 in forcing the petitioner to compromise the case with the accused on the file of Women Police Station, DD, Hyderabad, not taking the statements of the witnesses and further delaying in conducting of investigation and filing charge sheet as arbitrary, unjust and violation of the Articles 14, 15, 19 and 21 of the Constitution of India.

Counsel for the petitioner Ms Pratibha Bejjarram submitted that the petitioner has given a complaint to the police which was registered and instead of conducting investigation into the alleged crime, the police are forcing the petitioner to compromise the matter with the unofficial respondents and they are not conducting proper investigation and not filing the charge sheet, hence, she has come up before this Court.

Counsel for respondent Mr S. Rammohan Rao submitted that in the course of investigation, seven witnesses were examined and their detailed statements have been recorded. It was further stated the respondents are not pressurizing the petitioner to compromise the matter.

The Court observed that when a complaint is given and a cognizable offence is made out, police have to register a crime and conduct thorough investigation and file the charge sheet. However, any lapse on the part of the Investigating Officer cannot be a ground for the petitioner to approach this Court. The Court based on different documents produced before Court cannot decide the disputed questions of fact and it has no mechanism or the procedure to unravel the truth. The appropriate and efficacious remedy available to the petitioner, if she is aggrieved by the action / inaction of the Investigating Officer is to file a private complaint against the said officer before the competent Court. Day in and day out, several writ petitions are being filed stating that the police are not conducting proper investigation and not filing the charge sheet nor they are arresting the accused. By any stretch of imagination, those issues cannot be decided by this Court while exercise of jurisdiction under Article 226 of the Constitution.

The Court held “In the light of the above, the Writ Petition is disposed of with liberty to the petitioner to avail appropriate remedy. There shall be no order as to costs.”

[K. Savya v. Station House Officer, Writ Petition No. 20097 of 2022, decided on 21-04-2022]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Chhattisgarh High Court: A Division Bench of Arup Kumar Goswami CJ and N K Chandravanshi J. dismissed the petition and declined to issue a writ of habeas corpus.

The facts of the case are such that the petitioner’s daughter’s marriage was solemnized with respondent 7 in the year 2011 because of love affair between them. They were blessed with a female child, but after some time, respondent 7 and his family members started raising suspicion alleging that she is suffering from an evil soul and used to torture her physically and mentally. A complaint was filed in police thana and during counselling the husband and his family agreed to take Juhi with them since that day there is no information about the well being of Juhi Sahu. Thus instant writ in the nature of habeas corpus, was filed seeking directions to the respondents/authorities to produce her missing daughter, Juhi Sahu, before this Court.

The order mentions that statements of relatives of both sides of the missing person were recorded, but nothing substantive was found with regard to her whereabouts.

The Court observed that perusal of record would show that during the course of hearing, this Court issued various directions in respect of the investigation to trace out the missing person Juhi Sahu, and in compliance of various orders, respondents 1 to 6/ police officials have filed various status reports/affidavit in respect of investigation of the matter, in which, they have categorically stated that despite their all possible efforts, they were not able to trace out the missing Juhi Sahu

The writ of habeas corpus is an effective means of immediate release from the unlawful detention, whether in prison or in private custody. Physical confinement is not necessary to constitute detention. Control and custody are sufficient. For issuance of a writ of habeas corpus, the applicant must show a prima facie case of unlawful detention of the subject.

The Court relied on judgment Kanu Sanyal v. District Magistrate, Darjeeling (1973) 2 SCC 674 and traced the history, nature and scope of the writ of habeas corpus. It was observed “it is a writ of immemorial antiquity whose first threads are woven deeply “within the seamless web of history and untraceable among countless incidents that constituted a total historical pattern of Anglo-Saxon jurisprudence”.

The Court observed that the constitutional Courts across the country predominantly held in catena of judgments that establishing a ground of “illegal detention” and a strong suspicion about any such “illegal detention” is a condition precedent for moving a Habeas Corpus petition and the Constitutional Courts shall not entertain a Habeas Corpus petition, where there is no allegation of “illegal detention” or suspicion about any such “illegal detention”. Cases of missing persons cannot be brought under the provision of the Habeas Corpus petition.

It was further observed that cases of missing persons are to be registered under the regular provisions of the Indian Penal Code and the Police officials concerned are bound to investigate the same in the manner prescribed under the Code of Criminal Procedure. Such cases are to be dealt as regular cases by the competent Court of Law and the extraordinary jurisdiction of the Constitutional Courts cannot be invoked for the purpose of dealing with such cases of missing persons.

The Court held it is not a fit case for issuance of a writ of habeas corpus. Therefore, we decline to exercise the jurisdiction for issuance of writ of habeas corpus, and dismiss the writ petition, leaving it open to the petitioner and respondents to proceed in accordance with law.

[Jaymati Sahu v. State of Chhattisgarh, 2022 SCC OnLine Chh 737, decided on 22-04-2022]


Appearances

For petitioner: Mr. Yogesh Chandra Sharma

For Respondents 1 to 6. : Mr. H.S. Ahluwalia


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: Chandra Dhari Singh, J., expressed that it is settled law that the power to issue writ has its own well-defined limitations imposed by the High Courts, one of which was the availability of alternative efficacious remedy.

A petition was filed under Articles 226 and 227 of the Constitution of India seeking issuance of writ of certiorari for immediate arrest of accused persons and taking appropriate action against the investigation officer for the delay in lodging FIR and helping accused persons.

Petitioner’s counsel submitted that the police was not investigating the matter as per the mandate of the judgments of the Supreme Court and High Court.

Analysis, Law and Decision

High Court referred to the various cases with regard to the exercise of the writ jurisdiction by the High Court.

Recently, the Supreme Court in Radha Krishan Industries v. State of H.P., (2021) 6 SCC 771, reiterated and summarized the principles governing the exercise of writ jurisdiction by the High Court in presence of an alternate remedy.

Hence,

“Extraordinary writ jurisdiction is to be exercised only in rare cases or certain contingencies in the interest of justice, including exceptional cases.”

Allahabad High Court’s decision in Waseem Haider v. State of U.P., Misc. Bench No. 24492 of 2020, held that the power to issue a writ of mandamus has its own well defined self-imposed limitations, one of which is the availability of alternative efficacious remedies. In the aforesaid judgment, the Division Bench has exhaustively dealt with the alternative remedies available to a person aggrieved by non-registration of FIR by the police.

Therefore, a writ to compel the police to conduct an investigation can be denied for not exhausting the alternative and efficacious remedy available under the provisions of the Code, unless the exceptions enumerated in the Supreme Court decision are satisfied.

In the instant case, it was noted that the petitioner was yet to exercise and exhaust his alternative remedies available under the provisions of the Code including approaching the Magistrate.

Bench expressed that it was the prerogative of the police/investigation agency to determine whether custodial interrogation was required.

Since the investigating agency was already investigating, the present stage was pre-mature for the writ petition to be entertained.

High Court opined that it should not ordinarily, as a matter of routine, exercise its extraordinary writ jurisdiction under Article 226 of the Constitution if an effective and efficacious alternate remedy is available.

In view of the above discussion, petition was dismissed. [Lalit Raj v. Union of India, 2022 SCC OnLine Del 799, decided on 16-3-2022]


Advocates before the Court:

For the Petitioner:

Mr. Shakti Narayan, Advocate

For the Respondents:

Ms. Monika Arora, Advocate for UOI

Mr. Rajesh Mahajan, ASC for State with Mr. Jyoti Babbar, Advocate with ACP Vijay Singh, P. S. Dwarka North

Case BriefsHigh Courts

Rajasthan High Court: Mahendar Kumar Goyal J. dismissed the petition being not maintainable against a private entity. 

The instant petition was filed seeking issuance of an appropriate Writ, to set aside the action of removal of videos of petitioner on his YouTube channel and subsequent termination of his YouTube channel by respondent No.2 and further direct respondent no.2 to restore the YouTube channel of petitioner which was maintained on YouTube portal with the name and style of “Gurudev Siyag Sidh Yoga Free” and allow him to operate the aid channel.

Counsel for petitioner Mr. Ashish Davessar submitted that his YouTube account has been terminated by the respondent 2 without issuing any show cause notice or affording any opportunity of hearing, thus, the writ petition deserves to be allowed.

The Court observed a perusal of the prayer clause reveals that entire relief has been claimed against the respondent 2, a limited liability company. Although, it has been submitted that it is amenable to the writ jurisdiction on account of the State having its deep and pervasive control over its affairs and also for the reason that it discharges the functions of public importance which are closely related to the Government functions; but, the writ petition is bereft of any such averment.

The court further observed that there is not a whisper of averment in the entire writ petition as to the true nature of functions being discharged by the respondent 2 or the same being of public importance. In absence of any factual foundation to substantiate the submission that the respondent No.1 has deep and pervasive control over the affairs of the respondent No.2 or it discharges the public functions which are akin to the Government functions, this Court is not persuaded to accept the submission made by learned counsel for the petitioner.

The Court held, “Therefore, the writ petition is dismissed being not maintainable against a private entity.”[Dharmendar Kumar Sharma v. Union of India, 2022 SCC OnLine Raj 531, decided on 07-03-2022]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Madhya Pradesh High Court: The Division Bench of Ravi Malimath, CJ. and Dinesh Kumar Paliwal, J.dismissed a petition which was filed in public interest praying for a writ of mandamus to incorporate certain provisions in the law, namely, Section 14-A of the Madhya Pradesh Municipal Corporation Act, 1956 and Section 32-A of the Madhya Pradesh Municipalities Act, 1961.

The Court irrespective of the submissions being made stated that a writ for mandamus cannot lie to direct the State to enact a law.

The Court was of the view that such a petition for mandamus would not lie hence the petition was dismissed.[Nagrik Upbhokta Marg Darshak Manch v. State of Madhya Pradesh, 2022 SCC OnLine MP 397, decided on 28-02-2022]


For petitioners: Mr Dinesh Kumar Upadhyay

For respondents: Mr Brahmdatt Singh, Mr Siddharth Seth


Suchita Shukla, Editorial Assistant has reported this brief.

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: The Division Bench of S.K, Mishra ACJ. & N.S. Dhanik J., dismissed a petition filed against Claim Petition No. 05/NB/DB/2014. The petitioners prayed for quashing of the judgment and order dated 20-06-2018 passed by the Uttarakhand Public Services Tribunal and to issue a writ in the nature of certiorari to quash the Seniority List dated 01-04-2011 of the Assistant Engineer (Civil).

Seniority list dated 01-04-2011 of the Assistant Engineer (Civil) was promulgated after due promotion of the petitioners in the cadre of Executive Engineer. The petitioners alleged that they were shown juniors to the private respondents in the cadre of the Assistant Engineer (Civil) in alleged disregard of Rule 8(3)2(i) of the Uttarakhand Government Servant Seniority Rules, 2002. After long litigation before the High Court and the Supreme Court, respondent 2 to 12 were allocated the Uttarakhand cadre, vide allotment order dated 12-08-2010 and previous seniority list was revised. Now they have been placed above the petitioners in the seniority list, were also granted notional promotion to the post of Executive Engineer.

The Tribunal had earlier held that the promotion granted to respondents was not granted on the basis of their S.T. quota, but they were granted notational promotion on the basis of their seniority. However, the learned counsel on behalf of petitioner argued that notional promotion is illegal in view of the amendment of the Uttarakhand Government Servant Seniority Rules, 2002 in the year 2009.

The Court acknowledged that the private respondents were allocated the cadre of Junior Engineer (Civil) in the State of Uttarakhand by the Central Government  on condition that in case there is no vacancy in the Scheduled Caste and Scheduled Tribe category, they shall be absorbed in future vacancies. Thereafter the question before the Court was that

whether the Junior Engineers of the Uttar Pradesh cadre, who were transferred to the Uttarakhand cadre, will become senior to those persons, who are deemed to be their seniors in the State of Uttarakhand, as they were directly recruited to the cadre of Assistant Engineer.” The Court approved the observations made by the Tribunal. The Court was of the opinion that there was hardly any scope for interference in this case.

The Court while examining the jurisdictional issue held that

the High Court shall only examine the jurisdictional issue of the Tribunal, or the jurisdictional error committed by the Tribunal“.

Furthermore, it was held that

The Tribunal may decide a case wrongly, but that will not entitle the High Court to sit in appeal and re-appreciate the matter and pass an order.” A HC cannot treat itself a court of appeal while entertaining writ of certiorari as it is a settled principle of law. Hence, the Hon’ble HC dismissed the writ petition and expressed it opinion that “this is not a case, where the High Court should exercise the jurisdiction of writ of certiorari, or writ of supervision under Articles 226 and 227 respectively, of the Constitution of India.”

[Jagmohan Singh v.  State of Uttarakhand, 2021 SCC OnLine Utt 1450, decided on 24-12-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


Counsel for the petitioners. : Mr Shobhit Saharia

Counsel for the respondents. : Mr Pradeep Joshi, the Additional Chief Standing Counsel for the State of Uttarakhand.

Case BriefsHigh Courts

Madhya Pradesh High Court: Subodh Abhyankar, J., allowed a writ petition which was filed against the order of externment wherein the respondent had externed the petitioner from the limits of District Indore as also the adjoining Districts. The petitioner had averred that although the remedy of appeal was available to him, however, as the petitioner had been deprived of proper hearing by the respondent and principles of natural justice have been violated, the present petition has been directly filed before this Court.

The petitioner was involved in various criminal activities since 1998, which has led to fear in the minds of public and the public at large was also afraid to lodge any report against the petitioner as per the report of the Superintendent of Police recommending to initiate externment proceedings against the petitioner.

A reply was filed by the petitioner against the show cause notice on the ground that he was a social worker and the 9 cases, which are said to be registered against him are minor in nature, which have been lodged only due to political vendetta and out of the 9 cases, six cases are under Sections 323, 294, 506, 34 of IPC, and one case is under Section 110 of Cr.P.C., whereas other two cases are under Sections 188, 147, 341 of IPC, which are prohibitory in nature. Out of these nine cases, in six cases he has already been acquitted and in other three cases two cases are still under investigation.

The Court was required to see if the remedy of appeal was available to the petitioner or he can also assail the impugned order by way of the present writ, invoking jurisdiction of this court under Art.226 of the Constitution. From the record, it was apparent that none of the offences were serious in nature. The Court also found that the District Magistrate has not recorded the statement of any person from the area, who could say that he was afraid to go to police station only on account of the terror or influence exercised by the petitioner. It further added that it was apparent that by not providing the petitioner sufficient time to produce the orders of acquittal in the cases in which he was already acquitted, the principles of natural justice have been clearly violated and in such peculiar circumstances, even if the petitioner had not availed the remedy of appeal, this Court was of the considered opinion that this petition under Article 226 of the Constitution of India was maintainable.

As far as the contention that the order of externment cannot be passed in respect of other adjoining district was concerned, this court was not required to dwell upon the same as the impugned order is liable to be quashed on the ground of violation of principles of natural justice.[Raju v. Collector, Writ Petition No.21686 of 2021, decided on 24-11-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


Shri R. S. Chhabra, Counsel for the petitioner.

Shri Siddharth Jain, Counsel for the respondents/State.

Case BriefsHigh Courts

Allahabad High Court: Dr Y.K. Srivastava, J., expressed that, in a matter of custody of a minor child, the paramount consideration is the “welfare of the minor” and not rights of the parents or relatives under a statute which are in force.

A claim for guardianship or custody, in a writ of habeas corpus, may not be held to be an absolute right, and would yield to what would appear to be in the interest of the child. In such cases, it is not a question of liberty but of nurture and care.

Instant habeas corpus petition was initially filed by the paternal grandparents seeking custody of the corpus a minor child stated to be of the age of 19 months at that point of time, who was said to be with her maternal grandfather.

It has been stated that despite various requests maternal grandfather was not handing over the custody of the corpus to the paternal grandparents and that the same amounted to illegal detention.

Factual Matrix 

Present habeas corpus petition principally seeks to raise claims with regard to guardianship and custody of the petitioner 1 (corpus) who is girl child stated to have been born on 04.06.2018 and presently aged about three years. It is not disputed that the mother of petitioner 1, upon being seriously ill was taken away by respondent 4 along with the minor child for medical treatment and she died on 31.07.2019 and since then the petitioner 1 is under the care and custody of the respondent 4, her maternal grand­father. The lodging of the FIR under Sections 498­A, 304­B IPC and Section 3/4 Dowry Prohibition Act, 1961, in which the petitioners 2, 3 and 4, are named as accused and the pendency of the criminal proceedings are reflected from the records.

Principal Issue

Whether from the facts of the case, it can be stated that the custody of the child is illegal?

Analysis, Law and Decision

Writ of habeas corpus is a prerogative writ and an extraordinary remedy. It is a writ of right and not a writ of course and may be granted only on reasonable ground or probable cause being shown as held in Mohammad Ikram Hussain v. State of U.P., AIR 1964 SC 1625 and Kanu Sanyal v. District Magistrate, (1973) 2 SCC 674.

Jurisdiction

The exercise of the extraordinary jurisdiction for issuance of a writ of habeas corpus would,  be seen to be dependent on the jurisdictional fact where the applicant establishes a prima facie case that the detention is unlawful.

Object and Scope of Writ of Habeas Corpus

In the case of Syed Saleemuddin v. Dr Rukhsana, (2001) 5 SCC 247, it was held that in a habeas corpus petition seeking transfer of custody of a child from one parent to the other, the principal consideration for the court would be to ascertain whether the custody of the child can be said to be unlawful or illegal and whether the welfare of the child requires that the present custody should be changed.

In the decision of Walker v. Walker & Harrison, 1981 New Ze Recent Law 257, the question as to what would be dominating factors while examining the welfare of a child was considered and it was observed that while material considerations have their place, they are secondary matters. More important are stability and security, loving and understanding care and guidance, and warm and compassionate relationships which are essential for the development of the child’s character, personality and talents.

Further, elaborating more it was noted that question of a claim raised by maternal grand­father for guardianship of a minor child whose mother had died after giving birth to the child was subject matter of consideration in Shyamrao Maroti Karwate v. Deepak Kisanrao Tekham, (2010) 10 SCC 314, and reiterating that in the matter of custody of a minor child, paramount consideration is welfare of minor and not rights of parents or relatives, it was held that the appointment of the maternal grand­father as guardian, was justified.

Court stated that considering the facts of the case in particular the allegations against the respondent and pendency of a criminal case for an offence punishable under Section 498­A IPC, it was observed in the decision in the case of Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413, that one of the matters which is required to be considered by a court of law is ‘character’ of the proposed guardian and that the same would be a relevant factor.

In an earlier decision in the case of Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker Joshi, (1992) 3 SCC 573,  where in almost similar circumstances the father was facing a charge under Section 498­A IPC, it was held that though the father being a natural guardian, has a preferential right to the custody of the children, but in the facts and circumstances of the case, it would not be in the interest of the children to hand over their custody to the father.

Therefore, in an application seeking a writ of habeas corpus for custody of a minor child, the principal consideration for the Court would be to ascertain whether the custody of the child can be said to be unlawful and illegal and whether the welfare of the child requires the present custody should be changed and the child should be handed over in the care and custody of somebody else other than in whose custody the child presently is.

Power of the High Court, in granting a writ, in child custody matters, may be invoked only in cases where the detention of a minor is by a person who is not entitled to his/her legal custody.

 High Court observed that,

A writ of habeas corpus, is employed in certain cases, to enable a party to enforce a ‘right to control’ – arising out of a domestic relationship, especially to enable a parent to get custody and control of a child, alleged to be detained by some other person.

 Guardianship v. Welfare of the Child

 Bench expressed that while examining the competing rights with regard to guardianship vis-à-vis welfare of the child, the predominant test for consideration would be – what would best serve the welfare and interest of the child.

The interest of the child would prevail over legal rights of the parties while deciding matters relating to custody.

In Court’s opinion, the custody of a minor child with her maternal grandfather was not in any manner illegal and improper detention.

Reasoning out the above opinion, Court stated that the child from her infancy, when she was of a tender age, appears to be living with her maternal grand­ father. This together with the fact that the father who is claiming custody is named as an accused in a criminal case relating to the death of the mother of the corpus, would also be a relevant factor.

“…in deciding questions relating to custody of a minor child, as in the present case, the paramount consideration would be welfare of the minor and not the competing rights with regard to guardianship agitated by the parties for which the proper remedy would be before the appropriate statutory forum.”

In view of the above petition was dismissed. [Reshu v. State of U.P., Habeas Corpus WP No. 9 of 2020, decided on 22-10-2021]


Advocates before the Court:

Counsel for Petitioner:­ Rajeev Sawhney, Rajiv Lochan Shukla, Ramanuj Yadav, Virendra Kumar Yadav

Counsel for Respondent:­ G.A., Abhinav Gaur, Ankur Verma, Manoj Kumar Rajvanshi, Prakash Chandra Yadav

Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K Agrawal, J., allowed the petition and granted compensation for infringement of right to a speedy trial under Article 21 of the Constitution of India.

Background

The facts of the case are such that the petitioner herein has filed the instant writ petition stating inter alia that he remained in jail for commission of offence under Sections 420/34 and 120B of Penal Code, 1860 i.e. IPC from 14.5.2012 till the date of delivery of judgment i.e. 08.11.2016 i.e. 4 years, 6 months and 7 days, whereas he has been awarded sentence only for three years for offence under Section 420/34 of the IPC and three years for offence under Section 120B of the IPC and sentences have been directed to run concurrently, as such, it is a clear case where his constitutional right of speedy trial enshrined in Article 21 of the Constitution of India has admittedly been violated and for which he is entitled to appropriate compensation jointly and severally from the respondents.

Submissions

Counsel for the petitioner Ms Reena Singh submitted that that “right to speedy trial” is his fundamental right and on account of non-conclusion of trial within a reasonable time, the petitioner remained in jail for a period more than he has been sentenced now at the conclusion of trial, which is violative of his fundamental right as guaranteed under Article 21 of the Constitution of India and for which, he is entitled for compensation of ₹ 30 lacks for his said illegal detention for about 1 year, 6 months and 8 days jointly and severally from the respondents.

Counsel for the respondents Mr Jitendra Pali submitted that detention of the petitioner was judicial custody in accordance with law and the procedure established by law, as such, the same cannot be termed as illegal detention and the petitioner. It was further submitted that the petitioner is not entitled for any compensation as his fundamental right of speedy trial has not been violated and he remained in judicial custody till the date of judgment for commission of offence which have been found proved by the trial Court.

Mr Prasoon Agrawal (Amicus Curiae) relied on judgment P. Ramchandra Rao v. State of Karnataka, (2002) 4 SCC 578 submitted that “right to speedy trial” is a fundamental right of an accused under Article 21 of the Constitution of India.

Observations

  1. The court relied on “Common Cause” v. Union of India, (1996) 4 SCC 33 and observed that it has clearly been established that the right to speedy trial in criminal case is valuable and important right of the accused therein and its violation would result in denial of justice and that would result in grave miscarriage of justice.
  2. The Court relied on judgment Nilabati Behera v. State of Orissa, (1993) 2 SCC 746 and wherein it was held ” Award of compensation in a proceeding under Article 32 by the Supreme Court or by the High Court under Article 226 is a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort. A claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection, of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is distinct from, and in addition to, the remedy in private law for damages for the tort resulting from the contravention of the fundamental right.”

The Court thus observed that this Court in the exercise of jurisdiction under Article 226 of the Constitution of India under public law, can consider and grant compensation to the victim(s) who has suffered an infringement of fundamental right i.e. right to life and personal liberty guaranteed under Article 21 of the Constitution of India.

  1. Right to life is a fundamental right guaranteed under Article 21 of the Constitution of India and for its breach or violation, the petitioner is entitled to monetary compensation from the respondents who are responsible for its breach.
  2. The Court relied on judgment Vijay Kumar Gupta v. State, 2008 SCC OnLine Pat 568 has held that detention of a prisoner in custody in excess of the period that he has been sentenced infringes upon his fundamental right to life and liberty and as such, he is entitled for monetary compensation and further held that both the prosecuting authority and Court remained oblivious of his continuous detention for more than a period, the sentence for any of the offence would have carried.

The Court observed that following the principles of law and reverting to the facts of the present case, it is quite vivid that the petitioner remained in jail as undertrial for a period of 4 years, 6 months and 7 days, whereas he has been awarded punishment of 3 years for offences under Section 420/34 and Section 120B of the IPC (separately) and both sentences to run concurrently, as such, he remained in jail in excess (one year and six months) for more than the sentence awarded by concerned trial Magistrate, on account of delay in conducting the trial, despite twice this Court while hearing bail applications on 22.4.2013 and 24.6.2014 directed the trial Magistrate to conclude the trial expeditiously, which was not taken cognizance of by the learned trial Magistrate by which the petitioner continued in jail for a period more than the actual sentence awarded violating the petitioner’s right to speedy trial guaranteed under Article 21 of the Constitution of India and for which he is entitled for monetary compensation.

Decision

The Court held the petitioner will be entitled for ₹10,400×18=1,87,200/along with 6% interest from today till the date of payment jointly and severally which respondents No.2 and 4 will deposit within a period of 30 days from today.”

 [Nitin Aryan v. State of Chhattisgarh, 2021 SCC OnLine Chh 1636, decided on 07-06-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Orissa High Court: A Division Bench of S. Muralidhar CJ. and B. P Routray J. dismissed the petition on grounds discussed below.

The facts of the case are such that the Food Corporation of India i.e. `FCI (Opposite 1 and 2) being the nodal organization of the Government of India, delivers food grains to different parts of the State of Odisha and for such purpose it uses the space available in different warehouses under OSWC for storing and facilitating movement of the food grains on contract basis. The Petitioner executed a contract with Odisha State Warehousing Corporation i.e. OSWC (Opposite Party 1 and 2) effective for a period of two years for Handling and Transportation (H & T) of foodgrains and other allied materials at OSWC as per the quoted rate of contract. The said contract was extendable for a further period of three months. The contract was extended twice before the expiration of their respective previous contracts as the tender issued for the purpose could not be materialized. Those two extensions were granted with the same rate of contract but on further extension, FCI expressed dissatisfaction and put a condition that, the rate applicable for the extended period would be the existing rate or the new rate, whichever is lower. The new agreement was executed and the rate of contract was much lesser than the earlier rate of contract fixed as per the original contract. Thus, for the bills raised by OSWC after 31st March 2017, FCI deducted the amount calculated on the differential rate between the rate of contract existed as per the 2013 agreement and 2017 agreement. As a result, OSWC realized the differential amount from the bill of the Petitioner and this is the subject matter of the dispute in the present petition.

Counsel for the petitioners Mr. P.K.Roy submitted that realization of differential amount from its bill with retrospective effect is grossly illegal and the same is violation of statutory rules as no opportunity of showing any cause or hearing has been granted. It is further contended that in the absence of any agreement after 31st October, 2015 till 31st March 2017, the rate applicable would be the existing rate as per the 2013 agreement.

Counsel for the respondents Mr. P.K. Rath, Mr. Bijay Kumar Dash and Mr. Debasish Nayak submitted that the Petitioner has not come with clean hands as the entire dispute has emanated from contractual obligations and, therefore, the writ petition under Article 226 would not be maintainable. It is further contended that the petitioner continued H & T work with OSWC having been aware of the stipulation of change in rate of contract, is estopped from raising the dispute at realization stage.

The Court observed that realization of the differential amount at a lower rate in absence of any existing contract is not contentious as it is clear that being fully aware of the lower rate, which may be stipulated in the new contract, the Petitioner continued with the work for the extended period.

The Court observed “Once the Petitioner has accepted the condition with a lower rate than the existing rate which may be effected for the period it continued with the work on extension, it hardly makes any difference whether a written contract on specific term is executed or not. Thus, the Petitioner now cannot claim that such a stipulation at the lower rate to realize the differential amount was without his knowledge.”

The Court relied on judgment Kerala State Electricity Board v. Kurien E. Kalathil (2000) 6 SCC 293 wherein it was held that

“11. A statute may expressly or impliedly confer power on a statutory body to enter into contracts in order to enable it to discharge its functions. Dispute arising out of the terms of such contracts or alleged breaches have to be settled by the ordinary principles of law of contract. The fact that one of the parties to the agreement is a statutory or public body will not by itself affect the principles to be applied. The disputes about the meaning of a covenant in a contract or its enforceability have to be determined according to the usual principles of the Contract Act.

The Court observed that the petitioner is unable to point out the violation of any statutory rule in its favour. The rate on which work is to be performed, flows from the contract executed between the Petitioner and OSWC.

The Court thus held “….Therefore, adjudication of the dispute in the writ jurisdiction in the present form is neither appropriate nor feasible.”[Jayasingh Bhoi v. OSWC, 2021 SCC OnLine Ori 630, decided on 31-05-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: Sharad Kumar Sharma, J., disposed of a writ petition which was filed in order to issue a writ, order or direction in the nature of Mandamus directing the respondent 2 to consider the representation and recheck/re-evaluate the answer sheet of the science subject of high school examination-2020 conducted by the Board of School Education.

The petitioner was a student, who had taken his high-school examination of the year 2020, which was conducted by respondent 2. The result of the High School examination for the year 2020, was declared and consequently, after the declaration of the result on it was found that the petitioner had been awarded lesser marks in the Science subject, and as per the pleadings raised in the writ petition, it was total 29 marks, as against science subject, which was shown that the petitioner had obtained in the science paper, which he otherwise expected that according to his performance in the examination, he ought to have been provided with 54 marks. Consequently, he had submitted that mark sheet which was issued to him upon the declaration of the result was not reflecting the correct marks of the petitioner as per his attempted orders, and the said fact stood fortified by the petitioner when he obtained the answer sheet from the respondent and then only he could get the knowledge of the wrongful determination and computation of the marks made by the respondent. After the order of the coordinate Bench of this Court the Secretary, Uttarakhand School Education Board, had observed that the petitioner would be securing 20 marks extra in the science subject than what was actually shown in his mark sheet and consequently, the total determination of marks obtained by him would be 69 marks.

The Court observed that the grievance of the petitioner stood redressed but writ Courts, since being a constitutional Courts sitting in an equitable jurisdiction, the respondent authority cannot be permitted to act with slackness and particularly when it relates to career of a student, who is doing his studies, which may have a possibility of leading the students to have a recourse to socially unpleasant acts.

The Court disposed of the petition holding that respondent was irresponsible and had acted with absolute irresponsibility in the computation of marks and this correspondence itself will amount to be an admission of the fact. The Court further directed that on account of the irresponsible manner in which the office of respondent 2; has discharged his responsibility in evaluating the answer sheet of the students by assigning lesser marks than marks actually obtained, they were imposed with the cost of Rs 50,000 to be paid to the petitioner, for both mental, physical and social harassment, caused to him and his family.[Pulkit Shukla v. State of Uttarakhand, Writ Petition (M/S) No. 13 of 2021, decided on 11-01-2021]


Suchita Shukla, Editorial Assistant has put this story together

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: A Division Bench of Dr Ravi Ranjan, CJ. and Sujit Narayan Prasad, J. while dismissing the present appeal, relied on settled precedents upon power of judicial review against an Award passed by Tribunal or Lower Court.

 Background

Respondent had raised a demand for regularization in service but after a failed attempt at conciliation, reference was made through a notification dated 18-09-1997 to the Central Government Industrial Tribunal. The Tribunal, after considering the rival contention raised before it, passed an Award of regularization which was assailed before this Court by the writ petitioner-appellant by filing WP (L) No 4466 of 2016. However, the writ petition was dismissed. Assailing the order of such dismissal, the present intra-court appeal has been preferred.

 Observations

On power of judicial review/issuance of writ of Certiorari against an Award passed by the Tribunal or Lower Court

Court placed reliance on the case of;

Hari Vishnu v. Ahmad Ishaque, (1955) 1 SCR 1104, at paragraph 21, it was noted, “With regard to the character and scope of the writ of certiorari and the conditions under which it can be issued, the following propositions may be taken as established: (1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) Writ of certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject-matter has jurisdiction to decide wrong as well as right, and when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy, if a superior Court were to rehear the case on the evidence and substitute its own findings in certiorari.”

Syed Yakoob v. Radhakrishnan, (1964) 5 SCR 64, wherein the Supreme Court said, “In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the

inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court.”

General Manager, Electrical Rengali Hydro Electric Project, Orissa v. Giridhari Sahu, (2019) 10 SCC 695, the Supreme Court considered the issue about scope of issuance of writ of certiorari by the High Court and has laid down the proposition of law that if the finding recorded by the court is erroneous and based upon perversity, the order is fit to be quashed/set aside.

Court also acknowledged the findings in Sawarn Singh v. State of Punjab, (1976) 2 SCC 868, Heinz India Pvt. Ltd. v. State of UP, (2012) 5 SCC 443, Pepsico India Holding (P) Ltd. v. Krishna Kant Pandey, (2015) 4 SCC 270, Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, (1986) 4 SCC 447.  

With respect to the reliance placed on Uma Devi Case

It was argued by the counsel for the appellant that there cannot be any regularisation in the service after the judgment rendered by the Constitution Bench in the case of Secretary, State of Karnataka v. Uma Devi, (2006) 4 SCC 1, but the present Court does not concur with the same, as, “Before the Constitution Bench of the Hon’ble Apex Court, the applicability of Industrial Dispute Act 1947 was not an issue. Further, the workman has claimed regularisation, in view of the policy decision of the Management FCI dated 06-05-1987 and if the Tribunal has passed an Award after taking into consideration the policy decision of the Management FCI, the same cannot be said to be illegal.”

Decision

Refusing to interfere with the Award, Court conclusively said, “It is settled that in the matter of issuance of writ of certiorari, the perversity of finding is to be looked into by the High Court in exercise of power under Article 226 and if the issue has not been raised before the Tribunal, the same cannot be proper to be looked by the High Court at the time of looking into the legality and propriety of the Award.”[Food Corporation of India v. Ganesh Jha, 2020 SCC OnLine Jhar 1078, decided on 17-12-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu & Kashmir High Court: Sanjay Kumar Gupta, J. dismissed a writ petition seeking a writ of mandamus against official respondents for restraining private persons from encroaching of the suit property of the petitioner.

The petitioner herein had filed a writ petition under Article 226 of the Constitution of India read with Article 103 of Constitution of Jammu & Kashmir, seeking mandamus commanding the official respondents to restrain certain private persons from interfering in the peaceful possession of petitioner’s suit property.

The Court noted that the petitioner was claiming relief for restraining the encroachment of his land by private persons. It was opined that this was not the function of official respondents, because they are executive functionaries of State. Since, the dispute involved the civil rights of the petitioner, it would be proper for him to seek a remedy before a civil court by filing a suit for injunction.

While determining the petition before it, the Court relied heavily on Roshina T v. Abdul Azeez, (2019) 2 SCC 329 where it was held that “a regular suit is an appropriate remedy for settlement of the disputes relating to property rights between the private persons. The remedy under Article 226 of the Constitution shall not be available except where violation of some statutory duty on the part of statutory authority is alleged.” In that case, the Supreme Court had held that a High Court cannot use its constitutional jurisdiction for deciding disputes, for which remedies under the general law, civil or criminal are available. The jurisdiction under Article 226 of the Constitution being special and extraordinary, it should not be exercised casually or lightly on mere asking by the litigant.

In view of the above, the petition was dismissed but liberty was granted to the petitioner to approach the civil court.[Paras Ram v. State of J&K, 2019 SCC OnLine J&K 479, decided on 24-05-2019]

Case BriefsForeign Courts

Supreme Court of Pakistan: The three-judge Bench of Mian Saqib Nisar, Ijaz Ul Ahsan and Sajjad Ali Shah, JJ. hearing a civil review petition was seized with the question as to whether Pakistan Olympic Association (POA) is a ‘person’ performing public functions in connection with the affairs of Federation of Pakistan under Article 199(1)(a) of the Constitution of Islamic Republic of Pakistan. 

POA is an autonomous society registered under the Societies Registration Act, 1860; affiliated under the Olympic Charter with the International Olympics Committee as the National Olympic Committee for Pakistan. It is not controlled by the Federal Government; isn’t a statutory body, and has no affiliation from the Pakistan Sports Board (PSB).

The Court relied on Abdul Wahab v. HBL, 2013 SCC OnLine Pak SC 84 where it was held that two important factors for ‘function test’ are: (i) the extent of financial interest of the State/Federation in an institution, and (ii) State’s dominance in controlling affairs thereof.

It was opined that none of the functions of POA involved exercise of sovereign power or public power. While the Federal Government did approve the selection of contingents and gave its consent to POA, such an act did not amount to executive control. Federal Government did not exercise decision-making authority even if PSB was involved in scrutinising and approving teams. Bulk of the activities carried out by POA were privately funded; only the activity of sending teams to Olympics was funded by the federal government; and while it was an expensive undertaking, it was only part of what POA did. Further, the State had no financial interest in the functions of POA.

In view of the above, it was held that POA did not satisfy the ‘function test’ and therefore, was not exercising public functions and was not a ‘person’ as per Article 199(5) of the Constitution. As such, no writ of quo warranto could lie against its office holders, nor could a writ lie against the Association in terms of Article 199(1)(a) of the Constitution.[Pakistan Olympic Association v. Nadeem Aftab Sindhu, CRP No. 412 of 2014, Order dated 01-01-2019]

Patna High Court
Case BriefsHigh Courts

Patna High Court: A Division Bench comprising of Ravi Ranjan and Madhuresh Prasad, JJ. while hearing a criminal writ petition filed by husband seeking habeas corpus for his wife, ruled that the writ could not be issued if the wife did not want to go back to her matrimonial home.

In the instant case, the petitioner-husband filed a writ seeking habeas corpus for his wife who had left him. On the date of hearing, the petitioner’s wife entered an appearance before the court along with her parents and submitted that the petitioner had assaulted due to which she had left her matrimonial home. She further submitted that she did not wish to go back to her matrimonial house along with the petitioner.

The Court noted the submissions of petitioner’s wife and held that since petitioner’s wife had already been produced before the Court, a writ of habeas corpus could not be issued to the petitioner. On that holding, the writ petition was dismissed.[Virat Arya v. State of Bihar,2018 SCC OnLine Pat 1987, decided on 01-11-2018]