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If the short-term sentence is allowed to run during the pending of the appeal, the appeal itself will become for all practical purposes, infructuous, so far as the appellant is concerned. Such an opinion was held by The Hon’ble High Court of Sikkim before The Hon’ble Mr. Justice Bhaskar Raj Pradhan in the matter of Pema Tshering Bhutia Vs. State of Sikkim [I.A. No. 1 of 2021 in Crl. Appeal No. 13 of 2021].

The facts of the case were associated with an application for suspension of sentence and grant of bail pending disposal of the appeal under section 389(1) of the Code of Criminal Procedure, 1973 (Cr.P.C.). The counsel representing the appellant stated that according to the order, the appellant was sentenced to one year each under sections 354 and 506 of the Indian Penal Code, 1860 (IPC). The PP for the state submitted that the appellant was convicted by the learned Trial Court and therefore the sentence must not be suspended. A previous case in Preet Pal Singh vs. State of Uttar Pradesh1 was referred wherein The Hon’ble Supreme Court held that assumption of innocence was a significant postulate of criminal jurisprudence, and courts may be liberal, depending on the facts and circumstances of the case, on the principle that bail was the rule and jail was an exception.

It was also stated that during post-conviction bail if guilt was found and the question of presumption of innocence did not rise, then suspension of operation of the sentence could be considered. It was also submitted that the court considered the prima-facie merits of the appeal with other factors. The Hon’ble Court opined that the Appellate Court must examine if there was an order of conviction that rendered the order of conviction prima facie being erroneous. 

Considering all the facts The Hon’ble Court ruled that “… Considering the rival submissions and examining the impugned judgment and order on sentence along with the depositions of the prosecution witnesses, this court is of the view that it is a fit case in which the appellant ought to be granted bail pending the final disposal of the appeal… The application for suspension of sentence and bail is accordingly allowed and disposed of. This order in addition to the regular mode shall also be communicated electronically to all concerned.”

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Judgment reviewed by Bipasha Kundu

This petition has been filed under Section 439(2) CrPC for cancellation of bail granted vide order dated 18.08.2021, and the same issue was held in the judgement passed by a single bench judge HON’BLE MR. JUSTICE SUBRAMONIUM PRASAD, in the matter BHAGYASHREE V. STATE OF N.C.T. OF DELHI & ANR dealt with an issue mentioned above.

The Petitioner was a 27-year-old woman wher Respondent No.2 was the student who was pursuing her BCom in Invertis University in the year 2015, later the Petitioner fell in love with Respondent No.2 and they both were in a relationship.

One day Petitioner reached Delhi at 3:30 PM, CRL.M.C. 2392/2021 the Respondent No.2 said to her that he was hungry and they should go to her room to have food, as well as to rest and talk. At about 4:30 PM, Respondent No.2 reached the Petitioner’s flat and, allegedly, at 5:00 PM, he started touching her. So the petitioner questioned the respondent for the action which took place

In return, Respondent No.2 stated that he loved the Petitioner, intended to marry her and that after the marriage they would be in such physical relations, Later it is alleged that Respondent No.2 forcefully had sexual intercourse with the Petitioner. When the Petitioner started crying and told Respondent No.2 that she would file a police complaint against him, Respondent No.2 threatened to kill her and her mother if she filed a complaint or if she informed anyone.

It was also mentioned that During the relationship between the Petitioner and Respondent No.2, it has been stated that Respondent No.2 visited her flat many times, and despite her refusal, he would have sexual intercourse with her, And also when Petitioner would bring up the prospect of marriage, Respondent No.2 would counter the same with some excuse or CRL.M.C. 2392/2021 the other.

On 13.02.2020, Respondent No.2 visited the flat of the Petitioner around 7:00 PM and had sexual intercourse with her against her wishes, and on 14.02.2020, Respondent No.2 left the flat informing the Petitioner that he would be going home to speak to his family about their marriage. On the said complaint, the instant FIR was registered against Respondent No.2 herein.

Mr Deepak Sharma, learned Counsel for the Petitioner, states that the learned Additional Sessions Judge has passed the impugned Order dated 18.08.2021 without considering all the essential facts and has also failed to peruse the detailed WhatsApp chats and conversations which have been filed by both the parties. Mr Sharma has submitted that the impugned Order passed by the learned Additional Sessions Judge is devoid of the version of the Petitioner and, therefore, is against the principle of natural justice and the Petitioner’s right to a fair trial.

Furthermore, when an order granting bail is passed by a lower court, the appellate court must be slow to interfere with such an order until and unless it is shown that the said order was passed without due application of judicial mind. In Mahipal v. Rajesh Kumar, 2020 (2) SCC 118.

This was a case of breach of promise to marry, thereby amounting to rape. To establish whether sexual intercourse was committed in the backdrop of a false promise of marriage, it has been held by the Supreme Court that the consent for sexual intercourse which is derived from the prosecutrix must be coerced or misguided or obtained through deceit.

Meanwhile, In the impugned Order dated 18.08.2021, the learned Additional Sessions Judge has set the following conditions while granting bail to the accused:

• The accused must furnish a personal bond in the sum of Rs. 50,000/- with one surety of the like amount to the satisfaction of the Learned MM/Link MM/Duty MM.
• The accused shall not make any attempt to contact the prosecutrix or any of the prosecution witnesses either directly or indirectly.
• The accused shall not threaten the witnesses or tamper with the evidence.

And few more conditions were stated by the Additional Sessions Judge.

The court perused the facts and argument’s presented, it believed that-  “In case of any violation of the conditions of bail set by the learned Additional Sessions Judge, this Court grants liberty to the Petitioner herein to approach the competent Court following the law to seek cancellation of the bail which has been granted to the Respondent No.2 The petition is dismissed with the above observations along with the pending application(s) if any”.

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Judgment Reweied by: Mandira BS

The Authorities of the State take decisions bearing upon the exigencies of service prevailing in each situation. Such an opinion was held by The Hon’ble High Court of Calcutta before The Hon’ble Mr. Justice Subrata Talukdar and The Hon’ble Mr. Justice Kesang Doma Bhutia in the matter of  Chandi Charan Roy & Ors. Vs. The State of West Bengal & Ors [MAT No. 407 of 2020 With IA No.C.A.N. 1 of 2020]. 

The facts of the case were associated with an appeal to dismiss the order dated 13.02.2020 passed by the Hon’ble Single Bench. It was reported that for the purpose of running Homeopathic Charitable Dispensaries in Rural West Bengal by virtue of Scheme introduced by the Department of Health and Family Welfare with the Department of Panchayats and Rural Development in 1978, the appellants were appointed as Part-Time Homeopathic Doctors, with no exit or entry age limit. Doctors were allowed beyond 65 years of age but they should be physically and mentally fit to perform the work. It was alleged that the notification of 2012 was violated whereas the appellants claimed that they were appointed before the said notification was issued. 

The previous single Judge dismissed the petition of 2017 resulting in one question that if the impugned notification of 2012 violated the rights of the writ petitioners as guaranteed under Articles 14 and 21 of the Constitution. It was found that the West Bengal government Department of Health and Family Welfare issued a memo dated 23.05.1988, in which the process to appoint such part-time Homeopathic Doctors was laid down. No age limit was mentioned. It appeared that the writ petitioner had challenged the new age policy for the exit of part-time homoeopathic doctors employed under the Scheme of 1978, by filing such a writ petition.

Considering all the submissions and facts, The Hon’ble High Court of Calcutta held that “ In the light of the above discussion this Court refrains itself from interfering with the findings of the Hon’ble Single Bench as this Court does not find any merit in the Present Appeal… MAT No. 407 of 2020 along with IA No.CAN 1 of 2020 stands dismissed.

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Judgment reviewed by Bipasha Kundu

The disputes existed between the developer and apartment owners in regard to issues related to parking areas. Such an opinion was held by The Hon’ble High Court of Karnataka before The Hon’ble Mr. Justice Sreenivas Harish Kumar in the matter of Praneth and Ors Vs. State of Karnataka and Anr [CP NO. 3970/2019]. 

The facts of the case were associated with a criminal petition filed under Section 482 of Cr.P.C to quash the proceedings on the file of A.C.J.M in Bengaluru Rural District. In connection to the offences punishable under Sections 341, 504 and 506 with Section 34 of IPC, the petitioners no 1 to 5 were accused and had to face trials. It was submitted by respondent no 2 that the petitioners abused and threatened him. It seemed that petitioner 1 was the developers and other petitioners were his workers.

It was complained by the petitioner that respondent 2 had removed the parking boards in cellar portions and when petitioner 2 questioned him, he was threatened to be killed by respondent 2. It was also reported that an injunction suit was also filed by petitioner 1 against some of the residents of the apartment. FIR was registered based on the complaints made by the petitioner 2. It was found that relating to the issue of parking area and payment of maintenance charges, the dispute between the developers and apartment owners rose.

The Hon’ble Court examining all the submissions stated that no offences under the said Sections were punishable according to the FIR. As no offences against the petitioners were forthcoming, then the proceedings against the petitioners can be quashed.

Thus, The Hon’ble Court ruled out that “The petition is allowed. Proceedings against C.C. No. 466/2019 pending on the file of the Additional Chief Judicial Magistrate, Bengaluru Rural District, Bengaluru, are hereby quashed, insofar as the petitioners are concerned.”

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Judgment reviewed by Bipasha Kundu

Pension is a hard-earned benefit accruing to an employee and has been held to be in the nature of property as upheld by the Hon’ble Supreme Court through the learned bench led by Justice Hrishikesh Roy in the case of Veena Pandey V. Union of India & Ors. (CIVIL APPEAL NO.6953 OF 2021)(Arising Out of SLP (C) No.15113 OF 2018).

The brief facts of the case are that the present appeal arises out of claims for pensionary benefits under the Coal Mines Pension Scheme, 1998. The appellant’s husband Ramashankar Pandey rendered service in the South Eastern Coal Fields Ltd., Bilaspur, after being transferred from Bharat Coking Coal Ltd in 1999. The employee retired on 31.05.2004 as Chief Personnel Manager at Bilaspur and later settled in Bhojpur, Bihar with his family. He opted for receiving 90% pension during his life time as provided under para 15 1(b) of the Pension Scheme, 1998 effective from 31.03.1998. Since the employee opted to receive 90% of the total admissible amount of the pension during his lifetime, on his death on 12.01.2011, the widow of the pensioner became entitled to receive in lump sum, an amount equal to 100 times his full monthly pension, in addition to family pension. The record shows that Rs.7091/- p.m. was sanctioned to the employee as Basic Pension under the Pension Scheme, 1998 w.e.f 01.06.2004 and 10% of his Basic Pension i.e. Rs. 788/- p.m. was deposited with the department. Following the employee’s death on 12.01.2011, as per the Pension Scheme, 1998 the widow of the pensioner made claim for a sum equivalent to 100 times the full monthly pension of her husband and vide letter dated 30.09.2012, she applied for payment of the lump sum amount in pursuance of para 15(1)(b) read with para 15(2) of the Pension Scheme, 1998. The appellant’s representation was however rejected. In the letter dated 22.01.2013 of the Regional Commissioner of the Coal Mines Provident Fund Organization it was stated that the pensioner had opted for payment of 90% pension under para 15 (1)(b) of the Pension Scheme, 1998, but the aforesaid provision was abolished w.e.f 21.02.2011. It was also intimated that the 10% surrendered amount had been refunded to all pensioners with interest under the order dated 30.01.2012 of the Coal Mines Provident Fund Commissioner. The appellant was refunded the surrendered amount of 10% with interest (Rs. 36,938/-) along with widow pension arrears (Rs.12,351/-), in total Rs. 49,289/-, whereas she claimed a higher sum under the now abolished provisions of the Pension Scheme. Aggrieved by the above stand of the employer, the appellant moved the High Court of Patna for disbursal of the pensionary benefits and also to quash the letter dated 22.01.2013 of the Regional Commissioner, CMPFO whereunder, it had been communicated that, no other payment is due to the appellant. Her C.W.J.C No.9837/2014 was however dismissed as not maintainable by the learned Single Judge on the ground that no cause of action arose within the territorial jurisdiction of the High Court of Patna. This order was affirmed by the Division Bench by dismissal of the appellant’s LPA No.701/2017 with similar observation that the services rendered by the pensioner were outside the territorial jurisdiction of the Patna High Court and hence the writ petition filed by the widow of the pensioner was not maintainable. These orders of the High Court are impugned in this Appeal.

The Hon’ble Court held, “In the above peculiar circumstances of this case, without commenting on the legality of the decision to discontinue the said provision in the pension scheme by the employer, as the pensioner was not alive on All India Reserve Bank Retired Officers’ Association & ors Vs. Union of India & ors, (1992) Supp 1 SCC 664 2(2013) 12 SCC 210 Page 6 of 7 the date of discontinuance, we consider it appropriate to pass necessary orders in her favour in this proceeding itself. Resultantly, the sum due and payable under the Pension scheme be computed and the same is ordered to be disbursed to the appellant. The amount earlier refunded to the appellant be adjusted suitably during the remittance process. The respondent/ employer should do the needful in terms of this order, within 8 weeks from today. The appeal is allowed with the above order.”

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Judgment reviewed by – Vandana Ragwani