Category Archives: Blog

If a Magistrate chooses to dismiss a complaint because of non-appearance of the complainant, he has to acquit the accused meaning thereby that acquittal of the accused is a necessary consequence of the dismissal of the complaint in default of appearance of the complainant as held by the High Court of J&K and Ladakh through learned bench of Justice Sanjay Dhar in the case of Manzoor Ahmad Mir Vs Nasir Ahmad Wasil [Crm(M) No.271/2019].

The brief facts in the instant case were that respondent had filed a complaint about offenses under Section 138 read with 142 of Negotiable Instruments Act against the petitioner before the Court of District Mobile Magistrate, Sopor. It seems that during the pendency of the said complaint, the complainant/respondent stopped appearing in the case and the same was dismissed for non-prosecution. The aforesaid order came to be challenged by the complainant/respondent before the Court of Additional Sessions Judge, Sopore by way of a revision petition. The learned Revisional Court, after making an elaborate discussion allowed the revision petition and set aside the order of trial Magistrate and asked the parties to appear before the trial Magistrate with a further direction to the said Magistrate to revive the complaint in question to its original number and to proceed with the same in accordance with law.

The only contention that has been raised by the learned counsel for the petitioner is that once an order of dismissal of a complaint is made by the Magistrate, the same amounts to acquittal. According to the learned senior counsel for the petitioner, an order of acquittal can be challenged only by way of an appeal after seeking leave to file the same and not by way of a revision petition. It has been vehemently contended by learned counsel for the respondent that in this case, the Magistrate had only dismissed the complaint and not recorded acquittal of the accused, as such; it is not an order of acquittal of the accused.

After hearing both sides, the Hon’ble High Court observed that the order of dismissal of complaint passed by the learned trial Magistrate simply records dismissal of the complaint but it does not record acquittal of the accused. Section 247 of the J&K Code of Criminal Procedure, which is applicable to the instant case, provides the consequences of non-appearance of the complainant and that the reasoning given by the learned counsel for the respondents is not correct as the dismissal of a complaint necessarily leads to the acquittal of the accused.

After a perusal of the facts and arguments, and relying on the judgments of Om Gayatri & Co. & Ors. V. State of Maharashtra, Sachin Sharma v. Pawan Gupta, 2019, and V. K. Bhat v. G. Ravi Kishore and another, the court concluded that “It is clear that the order of dismissal of complaint passed by learned Magistrate amounted to the acquittal of the petitioner herein and the said order could have been challenged only by way of an appeal and not by way of a revision petition. Therefore, the Revisional Court has exercised a jurisdiction that is not vested in it and, in fact, is barred in terms of sub-section (5) of Section 439 of J&K Cr. P. C. The impugned order of the Revisional Court is, therefore, without jurisdiction and calls for interference.”

Click here to read the Judgment

Judgment Reviewed by – Aryan Bajaj

Although Section 439 Cr. P. C gives concurrent jurisdiction to High Court and Sessions Court to consider a bail application of an accused yet, as a matter of ordinary practice, High Court does not entertain the application of a person under Section 439 Cr. P. C unless the said person has approached and exhausted the remedy before the Court’s first instance as held by the Hon’ble High Court of J&K and Ladakh through the learned bench of Justice Sanjay Dhar in the case of Khursheed Ahmad Kanna Vs UT of J&K[CrlM No.991/2021].

Briefly stated, the case of the prosecution is that a joint surprise check was conducted by officers/officials of Police Station, ACB, Baramulla, to ascertain the veracity of allegations that ARTO, Kupwara, had planted a person, to run the affairs of his office for minting money by illegal means. During the surprise check, the co-accused Bilal Ahmad Sheikh was found actively involved in conducting the driving tests with the officials of ARTO, Kupwara, which include the petitioner herein and Abdul Hamid Bhat. The alleged broker, Bilal Ahmad Sheikh, was found to be in possession of a list of applicants and he was occupying one of the chairs besides two Motor Vehicle Inspectors including the petitioner herein. During a search of the car of an alleged broker, 138 original driving licenses were recovered from it. It was found that broker Bilal Ahmad Sheikh, out of the money that he was collecting from applicants, used to pay Rs.1000/ each to ARTO and two Motor Vehicle Inspectors for LMV license and Rs.1500/ each for commercial vehicles. During the investigation of the case, a search of residential houses of co-accused Mohammad Mukhtar and Bilal Ahmad Sheikh was conducted and huge cash of Rs.16,35,500/ together with certain incriminating documents was recovered. Investigation revealed a complete nexus amongst the accused officials of RTO, Kupwara, including the petitioner herein with co-accused Bilal Ahmad Sheikh.

The Hon’ble High court, after a perusal of the facts, observed that the petitioner had approached this Court directly invoking the jurisdiction of this Court under Section 439 Cr. P. C and on 08.09.2021, interim bail had been granted to the petitioner subject to certain conditions which are still in force.

Respondent has, in its reply, submitted that the petitioner had also moved another bail application before the learned Special Judge but during the course of arguments, learned counsel for the petitioner had submitted that the said bail application had been withdrawn by the petitioner.

The Hon’ble High Court after hearing both the parties and relying on the judgments of Smt. Savitri Samso vs. the State of Karnataka, Smt. Manisha Neema vs. State of M. P, and Gopal Goyal vs. State of NCT of Delhi concluded by stating that “It is clear that though Section 439 of Cr. P. C confers concurrent jurisdiction on the High Court and the Sessions Court, an application should ordinarily be filed before the Sessions Court at the first instance and not directly before the High Court. For filing an application directly before the High Court, the applicant has to demonstrate and satisfy the High Court that there exist exceptional, rare and unusual reasons for the applicant to approach the High Court directly.”

Click here to read the Judgment

Judgment Reviewed by – Aryan Bajaj

The learned Single Judge ought not to   have   entertained   the   writ   petition on the ground of delay and laches alone as held by the Hon’ble Supreme Court through the learned bench of Justice M. R. Shah in the case of The State of Rajasthan & Ors. v. Surji Devi (CIVIL APPEAL NO.6205 OF 2021)

Brief facts of the case are that the late husband of the respondent herein late Shri Rameshwar   Lal   was   serving as Gram   Sevak.   He   was suspended from service vide order dated 08.01.1996 on the ground of willful absence from duty and not completing the audit.   The   administrative   committee   of   Panchayat   Samiti Nokha in its meting dated 26.02.1996 took a decision to remove him from service. That thereafter a public notice was published whereby Rameshwar Lal was directed to join his duties within a period of 15 days with explanation. Even after the completion of 15 days he did not join his duties. Thereafter the services of late husband of the respondent   were   terminated   vide   order   dated   16.12.1996 invoking the provisions of Section 91 (3) of the Rajasthan Panchayati Raj Act, 1994 and Rule 86 of Rajasthan Services Rules, 1951. The late husband of the respondent preferred an appeal against the order of termination before   the   District   Establishment Committee, Zila Parishad, Bikaner. During the pendency of the said appeal the employee – Rameshwar Lal passed away on   18.09.2009.  

Thereafter   the   respondent   herein preferred a writ petition before the High Court challenging   the dismissal/termination order dated 16.12.1996. By judgment and   order   dated   17.01.2017,   the   learned   Single   Judge allowed the said writ petition and quashed and set aside the order   of   termination   dated   16.12.1996   and   directed   the appellants   to   give   all   consequential   benefits   to   the respondent treating her husband to be superannuated on 16.12.1996. The judgment and order passed by the learned Single Judge has been confirmed by the Division Bench, by the impugned judgment and order. Hence the present appeal.

After hearing the learned counsels for the respective parties at length the Hon’ble Court noted that considering   the   aforesaid   facts   and circumstances, as such, the learned Single Judge ought not to   have   entertained   the   writ   petition   in   the   year   2012, challenging the order of termination passed on 16.12.1996, on the ground of delay and laches alone. The Court held that “The impugned judgment and order dated 01.03.2019 passed by the Division Bench of the High Court as well as the judgment and order dated 17.01.2017 passed by the learned Single Judge are hereby quashed and set aside. In the facts and circumstances of the case, there shall be no order as to costs.”

Click Here To Read The Judgment

Judgment reviewed by Vandana Ragwani

Cancellation of bail for breach of a condition imposed, at the time of granting bail, does not amount to review or modification of earlier order granting the bail. The single-judge bench consisting of J. Vivek Singh Thakur adjudged on the matters of breach of bail conditions and the power of Trial Court in the case of Virender Kumar v. State of H.P. &Anr. [Cr. Revision No. 161 of 2019].  

The Petitioner was accused and registered in Women Police Station Mandi under Section 498-A, 323, 506 and 34 of the Indian Penal Code. He later preferred an application under Section 438 Crpc wherein he was directed to be enlarged on bail on furnishing personal and surety bonds and was also directed to surrender his passport before the Investigating Officer. These orders were made absolute by the Sessions Judge and the Petitioner was not allowed to leave the country. His previous application for release of passport was dismissed by the trial court on the grounds that such a request should have been made to the Sessions Judge and the trial court now, did not have the power to dilute the conditions imposed at the time of granting bail.

The counsel for the petitioner argued that for earning a livelihood, the petitioner was required to go out of India frequently since he was in Merchant Navy. That his fundamental right to earn a livelihood (Article 21) had been affected and he should be given his passport as held in Gian Singh v. State of Rajasthan [(1999) 5 SCC 694].

The High Court held that based on various previous cases, such as Sunil K. Sinha v. State of Bihar [AIR 1999 SC 1533] and Hazari Lal Gupta v. Rameshwar Prasad and Anr. [AIR 1972 SC 494], the Court was empowered to impose such restrictions and the release of passport so surrendered depended upon the facts and circumstances of each case on its own merit by “balancing the individual interest of accused and the complainant and also the larger interest of the public to ensure the presence of an accused before the Court during the trial”. The HC observed that the 3^rd condition of bail enabled the petitioner to seek the permission of the Investigating Officer or Court to leave the country and the natural corollary thereof would be the entitlement of the petitioner to have his passport released.

Upon the issue of the power of the Trial Court, the HC held that “condition No.3 may be taken as a condition empowering the trial Court to consider the case of the petitioner for permission to leave India, but, here also, it is not clear that ‘Court’ referred in the said condition means the Court granting the bail or also includes the trial Court. Therefore, the trial Court has rightly rejected the application filed by petitioner for alteration of condition imposed in order granting the bail to him”. The HC directed the petitioner to seek the Sessions Court for the release of passport and stated that “Cancellation of bail on re-appreciation of same facts by the same Court would amount to review of earlier order, but, cancellation of bail for breach of condition imposed, at the time of granting bail, does not amount to review or modification of earlier order granting the bail, rather it would be in consonance with and in continuation to the previous order wherein cancellation of bail on breach of condition is inherent, for the reason that bail is granted subject to certain condition(s), breach whereof would entail cancellation of the bail Similarly, modification of condition(s) imposed at the time of granting bail, after taking into consideration new, additional or other facts, not considered earlier, also does not amount to review of previous order, particularly when order itself contains the condition that conditions, so imposed, may be varied, modified and/or altered suitably as and when it would be deemed fit by the Court in the facts and circumstances of the case”. 

The petition has been disposed of.

Click here to read the judgement

 

Judgement reviewed by -Sarita Kumari

It is settled law that the rights arising out of a contract cannot be resolved through the discretionary jurisdiction of this Court under Article 226 of the Constitution of India; especially when disputed questions of facts are involved. This judgment was pronounced by the division bench of the Chhattisgarh High Court consisting of Hon’ble Chief Justice P.R. Ramachandra Menon and Justice Shri Parth Prateem Sahu in the matter of Niranjan Lal Agarwal v. Coal India Limited and others. [W.A 178/2020].

The petitioner in the present writ petition alleged that the Fixed Deposit Receipt (FDR) which was arranged by the appellant in favour of the respondent company towards ‘performance security’ was not released by the company even after issuing the work completion certificate. It was anyway brought up that, when steps were being taken to release the sum, a few directions were obtained from the specialists of the GST/Central Excise Department to retain the instalment including the security store, in light of the obligation to be cleared by the Writ Petitioner to the Government. It was in the said situation, that the instalments were not affected and the FDR was not caused to be returned/released.

The learned Single Judge observed that there were disputed questions of fact, which could not be resolved in a proceeding under Article 226 of the Constitution of India. It was also observed that the reasons for non-disbursement of the amount due to the Writ Petitioner was because of the instructions given from the part of the authorities of the Central Government. In the said circumstance, interference was declined and the writ petition was dismissed, which is put to challenge in this appeal.

The division bench of Chhattisgarh High Court upheld the observations made by the learned Single Judge and opined that “When the Appellant/Writ Petitioner contends that the work involved in the present tender is admittedly complete (as certified by the Respondent-Company) but the amount due has not been released, the Respondent-Company contends that another work order given to the Writ Petitioner came to be terminated ‘at the risk and cost’ to the Writ Petitioner, for the default committed by him and that a sum of about Rs.6 Crores is due to the Respondent-Company. In view of the 4 disputed questions of facts, the prayer sought with respect to the amounts payable under the final bill cannot be adjudicated by this Court and hence, interference is not possible. It is for the Writ Petitioner to avail appropriate remedy before another appropriate forum, in accordance with the law with respect to this head.

The pleadings filed by the Respondent-Company and the submissions made through the learned counsel do not reconcile with the deeds pursued. We record our displeasure as to the casual way in which the matter has been dealt with by the Respondent-Company by way of incorrect or inconsistent submissions as to the release of the FDR; at the same time, retaining the same at their hands. It may amount to Contempt of Court as well, where serious action may be necessary in view of the verdict rendered by the Apex Court in the case of Dhananjay Sharma v. State of Haryana and others reported in [AIR 1995 SC 1795]. The 4th Respondent is directed to disburse the amount due to the Appellant towards the FDR forthwith, at any rate within one week thereafter. If there is any failure on the part of the Respondent-Company in acting as above, it shall be for the 4^th Respondent-Bank to release the FDR to the account of the Appellant/Writ Petitioner, notwithstanding any such lapse on the part of the Respondent-Company and such payment will discharge the 4th Respondent from any liability to the Respondent-Company in connection with the FDR arranged towards the performance security. The verdict passed by the learned Single Judge stands modified to the above-limited extent.”

Finally, the course and conduct pursued by the Respondent-Company w.r.t. the release of the security amount covered by the FDR was deprecated and they disposed of the writ appeal with a cost of Rs.10, 000/- payable by the Respondent-Company to the Appellant/Writ Petitioner.

Click here to read the judgement

 

Judgement reviewed by-Sarita Kumari