Extension of benefit of regularization incorrectly to any employee would not entitle the petitioner-appellant to the same benefit until and unless the petitioner-appellant is able to make out a case for regularization in terms of J&K Daily Rated Workers Employees (Regularization) Rules, 1994(SRO 64 of 1994) as held by the Hon’ble High Court of J&K through a learned bench of The Chief Justice and Justice Vinod Chatterji Koul in the case of Bashir Ahmad Dar Vs State of JK & Ors [LPAOW No. 123/2018].

The brief facts of the case were that the petitioner was allegedly appointed as a daily-wager in the Agriculture Department sometime in the year 1986. On completion of seven years of continuous service, he claimed regularization in terms of SRO 64 of 1994. Since his case was not considered for regularization, he preferred SWP No. 624/1995, but the said writ petition was disposed of with the direction to the respondent to consider the case of the petitioner. In pursuance to the above direction, the case of the petitioner was rejected vide order dated and petitioner challenged the above rejection order by filing SWP No. 297/2002 which came to be disposed of with the direction to the respondent to reconsider the case of the petitioner. Since as per the above direction, the case of the petitioner-appellant was not considered afresh, the petitioner initiated proceedings for contempt by filing a contempt and the contempt proceedings were closed on 12th March 2009 giving liberty to the petitioner to challenge the aforesaid consideration order. The respondent department reconsidered the matter and refused to regularize the services of the petitioner-appellant on the ground that he is not eligible for regularization under the aforesaid SRO 64 of 1994.

The submission of learned counsel for the petitioner-appellant is that the learned Single Judge manifestly erred in law in dismissing the writ petition when similar other petitions were allowed, the petitioner was entitled to the same benefit as was extended to other employees and, as such, the court erred in relegating the petitioner to file civil suit as the matter involves disputed questions of law.

After a perusal of the facts on the record, the Hon’ble High Court was of the view that “all findings of fact and the learned Single Judge is right in observing that the writ court cannot go into those fact-finding mission so as to verify their veracity or the genuineness by making a roving enquiry. The argument that few other employees have been extended the benefit of regularization is completely misconceived inasmuch as they may be similarly situated, but their regularization appears to have been ordered on being satisfied that they have completed seven years of continuous service which fact is lacking in the present case. The department upon verification of the aforesaid fact alone ordered for their regularization pursuant to the direction of the court. Moreover, extension of benefit of regularization incorrectly to any employee would not entitle the petitioner-appellant to the same benefit until and unless the petitioner-appellant is able to make out a case for regularization in terms of SRO 64 of 1994.”

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Judgment Reviewed by – Aryan Bajaj

No appeal lies under Section 260-A of the Income Tax Act against an order rejecting the application filed under Section 254(2) of the Income Tax Act. Therefore, in the absence of any statutory remedy against it, the writ petition is the only remedy, if any, available. This was held by the Hon’ble High Court of J&K, while relying on the Judgment in the case of Lachman Dass Bhatia vs. Assistant Commissioner of Income Tax & connected appeals (2011) 330 ITR 243 Del, through a learned bench of The Chief Justice and Justice Vinod Chatterji Koul in the case of M/s Kashmir Fabric Industries Vs Income Tax Appellate Tribunal & Anr [OWP No. 1127/2009].

The petitioner had preferred this petition under Article 226 of the Constitution of India so as to challenge the judgment and order of the Income Tax Appellate Tribunal dated 30.12.2008 in respect to the assessment year 2005-2006 and the subsequent order dated 24.04.2009 again passed by the Tribunal rejecting the application of the petitioner for rectifying the earlier order.

Brief facts of the case are that the assessing authority for the relevant year denied benefit under Section 80IB of the Income Tax Act as the petitioner could not produce evidence regarding consumption of electricity to establish actual production. The appeal against the said order was dismissed by the Commissioner of Income Tax and so was the further appeal by the tribunal by the impugned order. The petitioner filed application under Section 254(2) of the Income Tax Act for the rectification of the order of the tribunal on the ground that the tribunal has failed to consider the certificate of payment of electricity dues for the year 2004- 2005 to establish the electricity consumption to prove production. The said application was also rejected as the tribunal opining that in the garb of rectification.

Mr Z. A. Shah, counsel for the petitioner, submitted that the orders of the tribunal stands vitiated for non-consideration of the certificate of payment of electricity dues for the year 2004-2005. On the other hand Mr Kawoosa, counsel for the respondent, submitted that the writ petition is not maintainable as the petitioner has an alternative remedy of filing a statutory appeal under Section 260-A of the Act.

The Hon’ble High Court after hearing both the parties and a perusal of the facts on the record observed that an appeal is provided to the High Court from every order passed in appeal by the appellate tribunal on the substantial question of law. One of the orders challenged in this writ petition was the order dated 30th December 2008 passed by the tribunal in an appeal preferred by the petitioner against the order of the Commissioner, Income Tax (Appeals), and, as such, is an order passed in appeal which is certainly appealable. In conclusion, it was stated that “No appeal lies under Section 260-A of the Act against an order rejecting the application filed under Section 254(2) of the Act. Therefore, in the absence of any statutory remedy against it, the writ petition is the only remedy, if any, available. Accordingly, the petitioner has rightly invoked the writ jurisdiction of the court so as to challenge the order dated 24th April 2009 passed by the tribunal.”

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Judgment reviewed by – Aryan Bajaj

A plea seeking a direction to enable and make it lawful for the petitioner to perform Live Body Donation (Jeevit Deh Dan) of his human body and of all his living organs and tissues was dismissed by Allahabad High Court. The High Court presided over by J. S. Yadav and J. J Banerji dismissed the plea made in the case of Ranjan Srivastava vs. Union of India, [Public Interest Litigation No. 49 of 2021].

The facts of the case are that plea was filed by one Ranjan Srivastava to seek directions to enable and make it lawful for medical doctors/hospitals/institutions to perform the necessary medical procedures on him for his act of Live Body Donation. In his plea, he sought directions from the Court that living organs and tissues from the body of the petitioner could be transplanted into the bodies of the desperately suffering needy could be done.

The Petitioner pleaded that the fundamental right under Article 21 of the Constitution gave the petitioner a right to walk into an operation theatre of a suitable facility at a suitable time and for making multiple gifts of life to desperately suffering and dying individuals.

The Court, in this case, analysed the Transplantation of Human Organs and Tissues Act, 1994, which includes provisions for the regulation of removal, storage and transplantation of human organs and tissues for therapeutic purposes and for the prevention of commercial dealings in human organs and tissues and for matters connected therewith or incidental thereto. Further, Section 9 of the act includes restrictions on the removal and transplantation of human organs and tissues.

The Court, in this case, was of the opinion that, “If we accede to the relief sought for by the petitioner in the present writ petition, the same would contrary to the restrictions imposed u/s 9 of the Act of 1994. It is further noticed from the provisions of the Act of 1994 that detail procedure is laid down under Chapter II of the Act of 1994 which deals with the manner for the removal of human organs or tissues or both.”

The Court further held that “Since ample provisions have been made in the Act of 1994 as regard to removal, storage and transplantation of human organs and tissues for therapeutic purposes, we are not inclined to grant the relief as sought for by the petitioner in this petition being misconceived.”

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Judgement reviewed by-Sarita Kumari

In case an informant feels that proper or fair investigation is not being carried out by the investigating officer, the aggrieved can then approach a Magistrate for relief under Section 156(3) of the Code of Criminal Procedure (Crpc), instead of invoking writ jurisdiction of the High Court under Article 226 of the Constitution. The Allahabad High Court presided over by J. S.P. Kesarwani & J. S. Ahmed laid down this ratio in the case of Ajay Kumar & Ors. Vs. State of U.P. & Ors, [Criminal Miscellaneous Writ Petition No. 15692 of 2020].

The Court in this case has clubbed several petitions. The Petitions were filed under Article 226 of the Constitution with a prayer to direct the Police authorities to carry out the fair and proper investigation in various criminal cases. The Petitioner argued that they have a right to seek directions from the High Court under Article 226 of the Constitution if the investigating authority/agency is not functioning properly. They further, argued that there was no need to invoke Section 156(3) of the Crpc as the High Court has the power to pass such directions.

The High Court in this case had two questions before it that is whether the concerned Magistrate has the power to direct the police authorities to carry out fair and proper investigation. Secondly, whether the petitioners can directly approach the High Court under Article 226 of the Constitution without exhausting the remedy under Section 156(3) of the Crpc.

The Court in this case was of the opinion that every investigation has to be conducted in a fair manner and in accordance with the law. The Court further stated that “Fair and proper investigation is the primary duty of the investigating officer. In every civilized society, the police force is invested with powers of investigation of a crime to secure punishment for the criminal and it is in the interest of the society that the investigating agency must act honestly and fairly and not resort to fabricating false evidence or creating false clues only with a view to secure a conviction because such acts shake the confidence of the common man not only in the investigating agency but in the ultimate analysis in the system of dispensation of criminal justice. The proper result must be obtained by recourse to proper means, otherwise, it would be an invitation to anarchy.”

The Court emphasized the importance of fair investigation stated that “It is equally important that interested or influential persons are not able to misdirect or hijack the investigation, so as to throttle a fair investigation resulting in the offenders escaping a punitive course of law. These are important facets of the rule of law. Breach of rule of law amounts to negation of equality under Article 14 of the Constitution of India.”

The Court also stated that such fair trial and scope of Article 21 was of the opinion that “A fair trial includes fair investigation as reflected from Articles 20 and 21 of the Constitution of India. If the investigation is neither effective nor purposeful nor objective nor fair, the courts may if considered necessary, may order a fair investigation, further investigation or reinvestigation as the case may be to discover the truth so as to prevent miscarriage of justice.” The Court also relied upon landmark judgments of Maneka Gandhi Vs UOI and Subramanian Swamy vs. CBI.

The Court lastly stated that the proper remedy for proper and fair investigation of trials was under Section 156(3) of Crpc and not Article 226 of the Constitution. Reliance was placed on the landmark judgment of Vinubhai Haribhai Malviya v. State, where the Supreme Court was of the opinion that, “Magistrate’s power under Section 156(3) of the Crpc is very wide, for it is this judicial authority that must be satisfied that a proper investigation by the police takes place. To ensure that a ‘proper investigation takes place in the sense of a fair and just investigation by the police – which such Magistrate is to supervise – Article 21 of the Constitution of India mandates that all powers necessary, which may also be incidental or implied, are available to the Magistrate to ensure a proper investigation which, without doubt, would include the Ordering of further investigation.”

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Judgement reviewed by-Sarita Kumari

The petitioners were allowed to leave the jurisdiction of the Court for the purpose of medical treatment. The Hon’ble High Court of Meghalaya before The Hon’ble Mr. Justice W. Diengdoh held such an opinion in the matter of Shri. Tobias R. Marak & Anr. Vs. State of Meghalaya [Crl.Rev.P. No. 7 of 2021]. 

The facts of the case were related to the impugned order dated 11.10.2021, aggrieved the petitioners. It was stated that the modifications for the bail conditions were declined by the learned Special Judge. This lead him to file this instant petition. It was stated that the petitioners on pre-arrest bail were allowed to go on certain conditions which included not to leave the jurisdiction of the Court. It was stated that petitioner 2 pleaded for some modifications in the conditions since she was required to go to Apollo Hospital, Guwahati for medical treatment and petitioner 1, her husband was required to accompany her. However, the application plea was rejected by the Special Judge (POCSO) Shillong. 

The Hon’ble Court found out that the reason stated by the petitioner was genuine and the Public Prosecutor representing the State did not make any solid objection for the same. 

The Hon’ble Court regarding the matter stated that “In the exercise of inherent power under Section 482 Cr.P.C this Court is persuaded to allow the prayer of the petitioners. Accordingly, the said bail condition is hereby modified only to the extent that the petitioners are allowed to leave the jurisdiction of the Court for the purpose of medical treatment at Apollo Hospital, Guwahati and thereafter, on return to file a report indicating the same for which the original bail condition as cited above would then be restored.”

Therefore, the instant petition was disposed of. 

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Judgment reviewed by- Bipasha Kundu