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The accused was arrested for brutally assaulting and hanging the informant’s son to death. In the case, there was a sole witness who confirmed the crime. In light of all facts and circumstances, the court denied the application for bail to the accused. The Hon’ble High Court of Patna before Justice Mr. Madhuresh Prasad in the matter of MD Raju v. The State of Bihar[Criminal Appeal (SJ) No 1703 of 2021].                       

The Facts of the case were that the appeal was filed under Section 14(A)(2) of Scheduled Castes and Scheduled Tribes Act, 1989 against the refusal of his prayer for regular bail passed by Additional Sessions Judge I in the case registered under Section 147, 148, 149, 341, 323, 302, 506 of Indian Penal Code. The informant’s son was brutally assaulted in his shop and killed by hanging when he asked to pay off the dues from the accused person.

The Appellant submitted that several persons have been implicated by the general and omnibus allegation. The appellant had no criminal antecedent. The informant’s version was not as an eyewitness. There were no other injuries in the post mortem report except strangulation. The independent witness had stated regarding witnessing the assault perpetrated by the accused.

Other petitioner in the same matter were not granted bail and their plea was dismissed by the Court. The Court was inclined to give the similar decision in the current matter as well. The Court relied on the sole witness and post mortem report, and in the light of the facts and circumstances presented by both the sides the Court decided the matter.

The Hon’ble High Court Of Patna held,”… in view of nature of accusation in the First Information Report, and submission of parties, a case for grant of regular bail is not made out. The impugned order dated 23.12.2020 does not require interference by this Court, which is, accordingly, affirmed. The impugned order dated 23.12.2020 passed by Additional Sessions Judge I-cum- Special Judge, SC/ST Act, Purnea in connection with Special (SC/ST) Case No 72 of 2020/CIS No 72 of 2020 arising out of K Hat PS Case No 261 of 2020 is affirmed.” The appeal was dismissed by the High Court and the prayer for bail of the appellant was rejected for the case.

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Judgement Reviewed By Nimisha Dublish

The Petitioner alleged to have grievously hurt the vendor granted bail by the High Court. The facts and circumstances showed that it was a trivial matter which was exaggerated by the informant. The Hon’ble High Court of Patna before Justice Mr. Ahsanuddin Amanullah in the matter of Awasar Dewan v. The State of Bihar[CRIMINAL MISCELLANEOUS No. 3363 Of 2021].

The facts of the case were that the petitioners apprehend arrest in connection with Majhaulia PS Case No. 377 of 2020 under Sections 341, 323, 324, 379, 307, and 504 of the Indian Penal Code, 1860. It was alleged that the petitioners and others are of assault on the informant and his brother and specifically against petitioner no. 1 that he had taken 1 kg. of apple from the cart of the informant and when he refused to pay, he had abused him. he had taken away Rs. 4,000/- cash from the cart of the informant whereas, against petitioner no. 4, there is the only general and omnibus allegation of assault without any specific overt act attributed to him.

It was submitted by the petitioners that the allegations and issues are trivial in nature and have been blown out of proportion with mala fide intention. It also doesn’t amount to an assault. It was submitted that there is no other criminal antecedent of the petitioners. Further, it was submitted that even the injury suffered by the informant, though attributed to other co-accused is simple in nature. Learned counsel submitted that though the allegation of assault on the informant is specifically against petitioner no. 2, who is no more a petitioner herein, the same has resulted in damage in the skull and the CT scan of the brain, grievous injuries have been seen and found.

The Hon’ble High Court of Patna held,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, in view of the nature of the allegations as also that the petitioners no. 1, 3 and 4 do not have any criminal antecedent, the Court is inclined to allow their prayer for pre-arrest bail.” The Court further added,” It shall also be open for the prosecution to bring any violation of the foregoing conditions by the said petitioners, to the notice of the Court concerned, which shall take immediate action on the same after giving opportunity of hearing to the concerned petitioners.” The petition was disposed of on the mentioned terms.

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Judgment Reviewed By Nimisha Dublish

The civil courts may have the limited jurisdiction in service matters, but jurisdiction may not be available to Court to adjudicate on orders passed by disciplinary authority. as upheld by the Hon’ble Supreme Court through the learned bench lead by Justice Hrishikesh Roy in the case of Milkhi Ram v. Himachal Pradesh State Electricity Board (CIVIL APPEAL NO. 1346 OF 2010)

The brief facts of the case are that, the appellant was a daily wage employee under the Himachal Pradesh State Electricity Board. The service of the temporary employee was dispensed with by order dated 1.1.1985 issued by the Executive Engineer. This was challenged in the Civil Suit No. 100/1985. The plaintiff claimed to have rendered uninterrupted service for 2778 days and asserted the right to be regularized after completion of 240 days of continuous service. The defendant per-contra contended that the plaintiff never worked for a continuous period of 240 days and as such he is disentitled to claim regularization. The learned Judge referred to the provisions of Section 25B and 25F of the ID Act and noted that the plaintiff had rendered service for well above 240 days in one year and therefore his service could not have been terminated without complying with the statutory requirement.

The Board challenged the above decision before the District Judge, Dharamshala. The jurisdiction of civil court was again questioned but the appellate court observed that the question of jurisdiction is a mixed question of law and facts and since the litigation is continuing for long, it would not be proper to relegate the plaintiff to the labour court. The decree favouring the plaintiff was accordingly upheld by rejecting the jurisdictional objection raised by the Board. The Board made the offer to appoint the terminated daily wager to the post of LDC in the regular pay scale, responding to the appointment offer, the appellant gave a joining report but the joining report was not acted upon by the management.

The Board contended before the High Court that the civil court had no jurisdiction to adjudicate a claim arising out of the ID Act and relief for the aggrieved employee could have been granted, only by the industrial court. On the other hand, the decree holder pointed out that concurrent findings are recorded in favour of the plaintiff. the learned Judge referred to the judgments in Rajasthan SRTC & Ors. vs. Khadarmal, Rajasthan SRTC & Anr. vs. Ugma Ram Choudhry and opined that the civil court did not have jurisdiction to entertain a claim based on the ID Act and if any decree is passed by the court without jurisdiction, the same shall have no force of law.

 Mr. Ajit Singh Pundir, the learned counsel submits that the appellant has rendered service as a daily wager since 11.12.1976 and his service could not have been terminated without following the due process. Even when relief is claimed based on the provisions of the ID Act, the jurisdiction of the civil court is not entirely barred.

Mr. Naresh K. Sharma, the learned counsel for the respondent Board, in support of the impugned judgment, reiterates the contention made before the High Court and submits that when the civil court had no jurisdiction, the decree is nothing but a nullity and no relief on the basis of such void decree can be claimed by the plaintiff.

Having heard learned counsel for the respective parties at length, the Hon’ble Court held, “Although jurisdictional objection was raised and a specific issue was framed at the instance of the employer, the issue was answered against the defendant. This Court is unable to accept the view propounded by the courts below and is of the considered opinion that the civil court lacks jurisdiction to entertain a suit structured on the provisions of the ID Act. The decree favouring the plaintiff is a legal nullity and the finding of the High Court to this extent is upheld.”

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Judgment Reviewed by Vandana Ragwani

While dealing with the issue of condonation of delay in respect of matters pending at the appellate stage, the advocates usually inform the litigants who are to be in contact as upheld by the Supreme Court through the learned bench lead by Justice J.K Maheshwari in the case of Dr. Yashwantrao Bhaskarrao Deshmukh v. Raghunath Kisan Saindane [CIVIL APPEAL NO. 6315 OF 2021] (ARISING OUT OF SPECIAL LEAVE PETITION (C) NO. 27874 OF 2018)

Brief facts of the case are that a suit for specific performance of the contract was filed by the respondent against the appellant based on an agreement to sell dated 18.2.1998 with respect to agricultural land. The said suit was partly decreed ex­parte by judgment dated 9.12.2002 in Special Civil Suit No. 2 of 2001 by Civil Judge (Sr. Division), Amalen directing recovery of a sum of Rs. 61,000/­ along with interest @ 6% p.a. from the appellant (defendant therein). The respondent preferred the first appeal before the High Court. However, the said appeal stood transferred from the High Court to the District Court. The Ad­hoc District Judge I, Amalner granted the decree of specific performance in favor of the respondent (plaintiff therein).

Aggrieved by the judgment, the appellant filed a second appeal before the High Court of judicature of Bombay, Bench at Aurangabad on 18.9.2017, inter alia, contending that the judgment passed by the 1^st Appellate Court came to his knowledge only on 14.9.2017 while explaining the delay of 650 days in filing the appeal. By the impugned judgment passed by the High Court the application seeking condonation was rejected, observing that the plea of non-service of notice due to change of address was not acceptable. It was also observed that the appellant had himself been negligent and had not contacted his counsel, dismissing the second appeal, as time-barred.

Learned counsel for the appellant has strenuously urged that the suit was filed for the specific performance of a contract. The trial court decreed the suit partly, for a refund of the earnest amount. The decree of specific performance is a discretionary relief, as specified under Section 16 of the Specific Relief Act. However, without giving an opportunity of hearing to contest the claim, the lower appellate court allowed the appeal of the respondent and passed an ex­parte judgment and decree of specific performance. In support of the contentions, reliance has been placed on a judgment of this Court in the cases of Perumon Bhagvathyu Devaswom Perinadu Village vs. Bhargavi Amma (dead) by LRS and Others, N. Mohan vs. R. Madhu and Rohin Thapa vs. Rohit Dora.

Learned counsel representing the respondent contends that a suit for specific performance of the contract was filed long back and the respondent is contesting the matter for the last 20 years. In the said suit in the trial court, the appellant remained ex­parte, the appeal filed before the High Court by the appellant was barred by a limitation of 650 days, which has not been explained showing bona fides. In such a case, interference by this Court is not warranted.

Having heard learned counsel for the respective parties at length, the Hon’ble Court noted that in such a situation without any inquiry and without arriving at a finding disbelieving the explanation of the appellant, the High Court was not justified in rejecting the application for condonation of delay. The Supreme Court held, “We request the High Court to take up the second appeal for admission as expeditiously as possible, preferably within one month, and if the second appeal is admitted, to decide and finally dispose of the same within a period of six months from the date of communication of this judgment and order.”

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Judgment Reviewed by – Vandana Ragwani

The expression “investigation” has different connotations than the expression “inquiry”. Section 4(h) of Cr. P. C defines “investigation” as proceedings under the Code or the collection of evidence conducted by a police officer or by any person other than a Magistrate who is authorized by a Magistrate in this behalf as observed by the Hon’ble High Court of J&K through the learned bench of Justice Sanjay Dhar in the case of Aasim Farooq Shah Vs Mohammad Yousuf Hakeem & Anr [CRMC No.51/2018]

Briefly stated, the facts emerging from the material on record are that a complaint came to be filed by respondent No.1 against the petitioner before the Chief Judicial Magistrate, Srinagar, wherein it was alleged that the petitioner had forged a document purportedly issued by Ethical Committee on Human/Animal Subjects Research SKIMS Hospital, Srinagar. According to respondent No.1, the complainant had obtained information under the Right to Information Act from the Department of Community Medicine, SKIMS, Srinagar, informing that the certificate of Ethical Committee had not been issued by the SKIMS (Trust) Hospital. Also, respondent No.1 had approached Police Station, Crime Branch, prior to the filing of the application before Chief Judicial Magistrate, Srinagar, but the Crime Branch, after obtaining a report from SKIMS, Srinagar, closed the complaint as no cognizable offense was found to have been made out against the petitioner herein.

The petitioner has challenged the impugned order dated 29.12.2017 passed by learned Chief Judicial Magistrate, Srinagar, on the grounds that once a complaint of respondent No.1 against the petitioner was closed, it was not open to the learned Magistrate to direct inquiry into the same; that from the contents of the complaint made by respondent No.1, no offense is made out against the petitioner; that the publication which is the subject matter of the complaint stands already retracted by the petitioner and that the same has not been used by the petitioner to get any benefit, as such, no offense is made out against the petitioner and that the impugned order has been passed by the learned Magistrate in a mechanical manner and without application of mind.

After hearing the learned counsels for the parties and perusing the facts on record, the High court observed that as per section 155(2) of Cr. P. C, it is clear that a police officer cannot investigate a non-cognizable offense without the order of a Magistrate of the first or second class having the power to try such a case. The Hon’ble High Court stated that “The expression “inquiry” is quite distinct from the expression “investigation”. The expression “inquiry” is defined in Section 4(g) of Cr. P. C as including every inquiry other than a trial conducted under the Code by a Magistrate or a Court, meaning thereby that “inquiry” includes only such type of proceedings which are sanctioned by any provision of the Code. Section 202 of Cr. P. C empowers a Magistrate either to inquire into the case himself, or direct an inquiry to be made by any Magistrate subordinate to him, or by a police officer, or by such other person as he thinks fit for the purpose of ascertaining the truth or falsehood of the complaint. Such an inquiry can be directed by a Magistrate only after taking cognizance of an offense on the basis of a complaint and after recording substance of examination of the complainant and his witnesses on oath.”

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Judgment Reviewed by – Aryan Bajaj