Section 152 of The Code of Civil Procedure applies to clerical and arithmetical mistakes in judgments, decrees or orders or errors arising from any accidental slip or omission which may be corrected by the court any time after passing of the order either on its own motion or on the application of any of the parties who seeks such correction. The language of Section 152 is based on the presumption that the mistakes are of a clerical nature without touching upon the merits of the matter or being capable of altering the effect of the order by changing the liabilities or obligations of the parties before the court. In the Hon’ble High Court of Calcutta led through the single-bench by Justice Moushumi Bhattacharya in the matters of Square Four Assets Management & Reconstruction Co. P. Ltd & Ors. v. Orient Beverages Ltd. & Ors.[CS/144/2016]

The facts of the case are the plaintiff filed an application in the suit under Chapter XIIIA of the Original Side Rules of this Court for final judgment against defendant no.2 for eviction and recovery of vacant and khas possession of an area of 22,500 sq. ft., equivalent to 31,500 Sq. ft. of super built-up area on the 4th, 5th and 6th floors of the building on the demised premises. The plaintiffs also claimed for final judgment determining the occupational charges and mesne profits payable by defendant no.2 in respect of the said area.

The suit was, accordingly, decreed for Rs.4,67,99,250/- together with interest at the rate of 8% per annum simple interest from the date of the order till payment to the plaintiffs. The balance claim of the mesne profits was referred to the Special Referee appointed by the court for determination.

The prayer for correction of the order is resisted by Mr S. N. Mookherjee, Senior Counsel and Mr Joy Saha, Senior Counsel appearing for the plaintiffs who submit that the application is not only belated but that defendant no.2 has not challenged the decree dated 11th July 2017. According to counsel, this is not a case that falls under Section 152 of the CPC and that the Minutes of the meeting relied upon by defendant no.2 has been disputed by the said defendant itself on the lack of authority of the person representing the defendant no.2.

The court concluded “The alteration of the figure of the area is not in the nature of an accidental slip or omission by the court which can be corrected at any time after the pronouncement of the order. The salutary practice of a court becoming functus officio after a judgment has been delivered is for the benefit of litigants who rely upon the certainty of orders for an effective implementation thereof. There must also be closure of proceedings so that parties can take the next course of action. Litigants cannot remain in limbo as to the finality of orders and judgments. Samarendra Nath Sinha vs. Krishna Kumar Nag; AIR 1967 SC 1440, relied on behalf of the defendant no.2 involved an arithmetic error made by the court by reason whereof Section 151 of the CPC was relied upon and the court was of the view that errors arising from such omissions can be subsequently corrected even after a judgment has been pronounced and signed by the court.”

Though, the present case is not one where the so-called mistake in the judgment and order dated 11th July 2017 can be reduced to a mistake through inadvertence or oversight and hence capable of being corrected under Section 152 of The Code of Civil Procedure.

The High Court of Calcutta directed “By reason of the above, this court is not inclined to allow the relief claimed in G.A. No. 501 of 2018, including for appointment of a Surveyor for measuring the portion of the suit premises which was in occupation of the petitioner. The application is accordingly dismissed without any order as to costs.”

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Even if the Financial Commissioner came to conclude that reasons would not justify the grant of any interim relief to the petitioner revisionist ex parte, the law did require and oblige him to record reasons even if they be elementary in character as held by the Hon’ble High Court of Delhi through the learned bench led by Hon’ble Mr. Justice Yashwant Varma in the case of Smt. Kamlesh & Anr. v. Govt. Of NCT of Delhi & Ors. (W.P.(C) 11989/2021, CM APPL. 37033/2021)

The brief facts of the case are that this petition impugns the order dated 14th September, 2021 passed by the Financial Commissioner. By the aforesaid order while entertaining a revision petition, the Financial Commissioner issued notice to the respondents therein. The Authority, however, after having heard counsel for the revisionist refused to grant interim relief.  When the matter was entertained initially, this Court on 25th October, 2021 had noticed that the Financial Commissioner had failed to record even rudimentary reasons for refusing the prayer for interim stay. The Court had also taken notice of the submission of learned counsel for the petitioner who contended that since proceedings on remand pursuant to the order dated 26th July, 2021 were likely to commence and proceed, it was incumbent upon the Financial Commissioner to consider the application for stay on merits.

Mr. Naushad Ahmed Khan as well as Mr. Zahid, learned counsels, who have appeared for the State respondents, however, submitted that the Financial Commissioner has not refused or rejected the application for stay in toto. According to learned counsels, a careful reading of the impugned order would clearly establish that the Financial Commissioner has merely refused to grant stay ex-parte and in the absence of the respondents.

The Court is informed by learned counsel for the petitioner that although the private respondents have been placed on advance notice, none has chosen to appear on their behalf to oppose this writ petition.

After perusal of the facts and arguments by the learned counsels, the Hon’ble Court held that, “ It was clearly incumbent upon the Financial Commissioner to accord due consideration to the submission of the revisionist that if the order of remand were permitted to operate, the proceedings itself may come to a conclusion during the pendency of the revision. The authority was obliged to consider whether the continued operation of the order impugned in the revision would result in prejudice and harm to the petitioner. In any case, the facts required the Financial Commissioner to consider at least prima facie whether the apprehension as expressed merited the impugned order being placed in abeyance during the pendency of the revision. In view of the above, the Court is of the considered opinion that the impugned order cannot be sustained and the matter would consequently merit being remanded to the Financial Commissioner for considering the application for stay afresh. Accordingly, the writ petition is allowed.”

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Judgment reviewed by Vandana Ragwani

The Hon’ble Supreme Court has reiterated the principle of bail as a general rule and keeping the person in jail is an exception, however, the Court has observed that bail should not be granted in every case and that the grant or refusal of bail is entirely within the discretion of the Judge hearing the matter and that discretion should be exercised judiciously as upheld by the High Court of Meghalaya through the learned bench led by Hon’ble Mr. Justice W. Diengdoh in the case of Pankaj Kumar Bhardwaj Vs. State of Meghalaya (BA No.13/2021).

The brief facts of the case are that it is an application under Section 439 Cr.P.C with a prayer for release of the petitioner herein on bail on any conditions as may deem fit and proper by this Court. According to the Petitioner, he was arrested in connection with the above mentioned case on the basis of an FIR dated 04.03.2021 lodged by one Shri. Bikash Goshwami who, on finding that his daughter aged about 14 years of age was found missing, had lodged the said FIR and the petitioner herein was named as the main suspect. Accordingly, the petitioner was arrested.

Mr. S. C. Chakraborty, learned counsel for the petitioner, has further submitted that the case has travelled beyond the stage of investigation and the I.O. has eventually filed the charge sheet in the ‘Final Form’ as required u/s 173 Cr.P.C. The thrust of the submission of the learned Sr. counsel is on the fact that the matter has been charge sheeted and according to his knowledge, charges have also been framed against the accused and therefore, at this stage, there is no question of tampering with the evidence or witnesses and under the circumstances, taking into account the fact that the petitioner is a young man of 23 years, therefore, prayer for grant of bail is made before this Court with any condition to be imposed for which the petitioner will abide with the same.

Mr. B. Bhattacharjee, learned AAG along with Mr. A. H. Kharwanlang, learned GA submitted that the reports reveals that the offences alleged against the petitioner herein are very serious in nature and the same involves a minor girl of about 14 years old. Perusal of the statement made by the alleged victim under Section 164 Cr.P.C, would also show that the accused has used force and deceit to compel the victim girl to run away with him on the said day. Another submission of the learned AAG was that the list of witnesses cited by the prosecution includes a number of persons who are known to the petitioner and as such, if enlarged on bail at this stage, the possibility of influencing the said witness cannot be ruled out, bail at this stage may not be granted.

After the perusal of the facts and arguments by the learned counsels, the Hon’ble Court held, “The Court is of the considered opinion that prima facie a case under the relevant sections and Law cited in the charge sheet have been made out against the petitioner herein. Be that as it may be, as submitted at the bar the charges have been framed against the accused, for which he is at liberty to argue before charge and to present his case accordingly. As far as the issue of discretion is concerned, the Hon’ble Supreme Court in the case of Dataram Singh Vs. State of Uttar Pradesh and Anr. (2018) 3 SCC 22 has reiterated the principle of bail as a general rule and keeping the person in jail is an exception. However, at paragraph 6 of the same, the Court has observed that bail should not be granted in every case and that the grant or refusal of bail is entirely within the discretion of the Judge hearing the matter and that discretion should be exercised judiciously. On the touch stone of the above cited principles, this Court is of the considered opinion that the case of the petitioner for grant of bail cannot be considered at this juncture.”

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Judgment reviewed by Vandana Ragwani

Unless there is material on record to justify the claims of price fixing by collusion, mere commonality of ownership does not indicate violation of the provisions of Section 3(3)(d) of the Competition Act. This was held by the CCI in the matter of In Re: Alleged Cartelization in Road Construction work in the State of Uttar Pradesh, [ Suo Motu Case No. 03 of 2018] before Hon’ble Chairperson Mr. Ashok Kumar Gupta, Hon’ble Members; Ms. Sangeeta Verma and Mr. Bhagwant Singh Bishnoi.

On the basis of a report from the Comptroller and Auditor General, the Commission acted on its own initiative upon becoming aware of the possibility of bid rigging by contractors engaged in road construction in the State of Uttar Pradesh. The Public Works Department (PWD) is in charge of the state’s road, building, bridge construction and maintenance. The CAG analysed 802 contract bonds undertaken by PWD in selected districts and found significant discrepancies from the criteria for technical evaluation of bids. The CAG noted a lack of competition in the tendering process, stating that 110 contract bonds were awarded on the basis of a single bid out of a total of 802 test-checked contract bonds implemented between 2011 and 2016. There was no re-tendering in any of these cases. As a result, only a small percentage of tenders received competitive bids.

Based on the above, the Commission on 26^th June 2018, held that there was a contravention of Sections 3(3)(a) and 3(3)(d) read with Section 3(1) of the Act. Additionally, it also asked the Director General (DG) to conduct an investigation and submit its report. The DG observed the following, that the PWD replied to the findings of the CAG report saying that, proper tender promotion and publicity had been made, that no bid rigging arrangements had been made with bidders, and that the tendering process was unbiased. There were no restrictions on bidders participating in the bidding process if they were registered with the Department as autonomous units, even if two or more bidding enterprises shared partners or ownership. It was also pointed out that there was no clause in the tender conditions for rejecting a tender if only one bid was received.

The DG ascertained that identical bids in a tender and then during negotiation may indicate collusion between two bidders.  However, no proof to support or substantiate such suspicion was found.  When two bidders submit identical bids, the work is divided between them. This guaranteed that the quality of work was accomplished at a lower cost than was authorised, that the Department had not suffered any loss or litigation, and that the work was in accordance with previous practises.

The Commission with regards to the aforementioned and referring In Re: Ved Prakash Tripathi v. Director General Armed Forces Medical Services and Ors [ C.No. 10 of 2020] and In Re: Reprographics India v. Hitachi Systems Micro Clinic Pvt. Ltd. & Ors. [C.No. 41 of 2018] held that, “mere commonality of ownership of participating firms, in itself, is not sufficient to record any conclusion about bid rigging in the absence of any material indicating collusion amongst such bidders while participating in tenders. The Commission has consistently held that mere common ownership is not sufficient to record any findings of contravention of the provisions of Section 3 of the Act………that in the absence of any rule regarding a single bid, it would have been difficult for the Department to cancel a tender merely because there is only one responsive bid, much less to draw any inference of anti-competitive conduct in the absence of any material on record in this regard………the investigation has not brought out any material which warrants further inquiry into the matter. The material brought forth by the DG are not sufficient to record any finding of contravention of the provisions of Section 3(1) of the Act read with Section 3(3) thereof.”

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Judgement Reviewed by Vagisha Sagar

The Petitioner was caught in the act of concealing the controlled substances in one room of his residence, where the Police reached and also considering that the quantity seized is a commercial quantity viz. 64 packets of Spasmodon capsules; another 13 packets of Spasmodon capsules and 26 packets of Nitrosun-10 tablets. In the Hon’ble High Court of Sikkim led through the single-bench by Justice Meenakshi Madan Rai in the matters of Durga Gupta @Golu v. State Of Sikkim[BAIL APPLN./11/2021]

The facts of the case are the Applicant herein, aged about 38 years, was arrested under Sections 9 (1)(c) of the Sikkim Anti-Drugs Act, 2006 (SADA, 2006) and Sections 22(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act, 1985) read with Section 34 of the Indian Penal Code, 1860. Since then he has been in Judicial Custody.

The Petitioners submitted that, the Petitioner has been falsely implicated in the instant matter by his elder brother, one Krishna Gupta, in connivance with the Police party conducting the search and seizure due to the acrimonious relations that he has with his elder brother. That, in fact, the premises that the Petitioner is residing in is the Fifth Floor of the seven storeyed building, whereas the controlled substances were recovered from the Sixth Floor of the building which is the residential premises of his elder brother and his family. That, neither the FIR nor the Seizure Memo reflect the seizure as having been made from his residential premises. That, the elder brother of the Petitioner runs a Medical Store and has a Licence for procuring medicines and therefore collected the controlled substances and with the assistance of the Police and one Yesar Arfat, implicated him falsely in the instant matter. That, the Petitioner was also threatened by the Police at the Sadar Police Station that he would be incarcerated for a long time on account of the various Complaints lodged by his elder brother before the Police Station. Besides, he has no criminal antecedents and being the only bread winner of his family, his incarceration would adversely affect his family.

Learned Additional Public Prosecutor submits that the Petitioner has been taking advantage of his License to run a Medical Store and has been obtaining medicines that are not permitted by the Licence. That, the Petitioner is not only a consumer of the controlled substances but the investigation has led to the revelation that he is also a supplier and seller of such controlled substances. That, the Petitioner was caught in the act of concealing the controlled substances when the Police reached his residence for search and seizure, hence there is no doubt that the search and seizure were made from his residence, as against the submissions put forth by the Petitioners. Besides, the articles seized were in commercial quantity and hence the Petition for bail deserves to be rejected.

The court concludes “In view of the facts and circumstances placed before me today and in consideration of the fact that at this juncture it has been pointed out that the Petitioner was caught in the act of concealing the controlled substances in one room of his residence, where the Police reached and also considering that the quantity seized is a commercial quantity viz. 64 packets of Spasmodon capsules (total 6400 capsules); another 13 packets of Spasmodon capsules (total 1300 capsules) and 26 packets of Nitrosun-10 tablets (total 2600 tablets), the Petition for bail deserves to be and is accordingly rejected and disposed of.”

The petition is disposed of accordingly.

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