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All enforcement forces have high standards of requirements that are required to be met to become a part of the service, and the if tests conducted to check the eligibility are done properly, then there is no requirement for the court’s interference.  This was held in the judgment passed by a two- judge bench Hon’ble Mr. Justice Manmohan Hon’ble Mr. Justice Navin Chawla, in the matter of Devendra Singh V. Union Of India And Ors. [W.P.(C) 9559/2021 & CM APPL. 29584-85/2021], dealt with an issue where the petitioner filed a petition challenging the communication by which the petitioner was informed that the Senior Divisional Medical Officer (G&O), Eastern Railway, Asansol has declared the petitioner as unfit for recruitment as a Constable (Executive) in the Railway Protection Force.

The petitioner further challenged the communication by which the request of the petitioner for medical re- examination was not considered for the reason that the photograph of the candidate had not been attested by the doctor concerned on the medical certificate.

Counsel for the petitioner submitted that the petitioner had applied for the post of Constable (Group C Post) in the RPF. He was issued a letter mentioning his provisional selection and was called to present himself for the medical examination to be held on at the Office of the Inspector, RPF, Asansol. The petitioner duly presented himself for the medical examination, however, was declared unfit under BEE ONE (B-1) medical category due to ‘EGL 13mm defective’. The impugned communication itself advised the petitioner of the procedure to file an appeal for medical re-examination. The petitioner duly applied for the same, however, on a technical ground of the photograph of the petitioner not being attested by the concerned doctor, the request was rejected by the respondent vide impugned communication. The petitioner has thereafter undergone a medical test at IRMM at the Jaipur Calgary Eye Hospital and Research Centre Trust as well as the Raj Bahadur Memorial Rajkiye Chikitsalaya, who had declared him to be medically fit. The petitioner again applied for an Appeal Medical Board with the respondent, however, the said request has been rejected by the respondents vide impugned order without giving any reasons for the same.

After hearing both the parties The Hon’ble Delhi High Court dismissed the petition and held that Clause VI of the Instructions further states that a request for appeal must be submitted within one month from the date of receipt of the decision from the Personnel Department of being declared unfit. The petitioner was informed of him being declared medically unfit vide the impugned communication. The impugned communication further advised the petitioner that he may submit an appeal challenging this finding within one month of the date of the issue of the letter along with a medical certificate in the prescribed performa from a specialist doctor. It also held that the petitioner has been found unfit by a committee consisting of three Railway Doctors, therefore they find no merit in this case.

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Judgement reviewed by – Vaishnavi Raman

The petitioner was arrested under Section 8 Narcotic Drugs and Psychotropic Substances Act, 1985, “Prohibition of certain operations relating to narcotic drug or psychotropic substance”, Section 2, “definitions elaborated under IPC”, Section 20, “Punishment for contravention in relation to cannabis plant and cannabis”, Section 25, “Punishment for allowing premises, etc to be used for commission of an offence”, and Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, “Punishment for allowing premises, etc., to be used for commission of an offence.” The petition is in connection with NDPS Case [No. 18 of 2019] arising out of CIS [No. 47 of 2019] appertaining to NCB Case F No. [NCB/PZU/V/13] of 2019 dated 25.05.2019. This is a second attempt for bail which was earlier rejected by judgment and order dated 08.06.2020 passed in [Cr. Misc. No. 14276 of 2020].

In the High Court of Judicature at Patna, this judgement was given by Honorable Mr Justice Ahsanuddin Amanullah on the 15^th of September  2021 in the case of Sharma Yadav Union of India through Intelligence Officer, Patna Zonal Unit, Narcotics Control Bureau, [Criminal Miscellaneous No. 28836 of 2021] Mr Umesh Chandra Verma represented as the advocate for the petitioner, and Mr Radhika Raman, represented the union of India as the additional Public Prosecutor, the proceedings of the court were held via video conference.

The case arises from the fact wherein, the petitioner along with 12 others was accused of possessing a total of 240 kgs. ganja in 45 packets they were recovered from two vehicles in which the petitioners were travelling it was recovered and seized by the authorities.

The counsel representing the petitioner held that earlier bail was rejected because the Union of India held that If the petitioner was released that may hamper the trial process after many accused gets bailed where they tend to not corporate in the trial and he might keep lingering and because of the this the accused was held in custody for a long period of time. The counsel submitted that despite this being the reason for the rejection of bail, the same trial had neither been concluded nor there was substantive progress. Therefore, it would not be acceptable to hold the petitioner under custody when the trial process is currently stagnant.

The counsel representing the Union of India held that the trial process is ongoing and out of the five prosecution witnesses, three had already been examined. Furthermore, the counsel assured the court that the remaining two witnesses would also depose in such a case as and when the Court would fix the date for the same.

The Court ordered a report with regard to the status of the case and enquired about the time period by which the trial could be concluded. The learned District and Sessions Judge, West Champaran, Bettiah submitted a report dated 23.08.2021. The report stated that the Court would focus on concluding the trial within six months as the court had started the function from the lockdown period due to covid-19. The process will not take too long. The counsel for the Union of India held that all the prosecution witnesses have been examined and there would be a recording of the statement of the accused under Section 313 of the Code of Criminal Procedure, 1973.

The Honourable Court concluded that “The fact that all the witnesses from the prosecution side have been examined, the Court does not find any mitigating circumstances to consider the prayer for bail to the petitioner.  Accordingly, the petition stands dismissed. However, in view of the stage of the trial, as noted above, the Court below is directed to conclude the trial expeditiously, subject to co-operation by the petitioner. The Court would only observe that in view of the report of the Court below, the trial must be concluded as per the time frame indicated in the report of the learned District and Sessions Judge, West Champaran, Bettiah dated 23.08.2021.”

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Judgment reviewed by – A. Beryl Sugirtham 

 

 

The judgments of conviction and sentence impugned in the present appeal are vitiated by errors of law as well as fact and based upon an erroneous interpretation of the provisions of the POCSO Act as well as the IPC. Such an opinion was held by the Hon’ble High Court of Calcutta before the Hon’ble Justice Sabyasachi Bhattacharyya in the matter of  Ranjit Rajbanshi Vs. The State of West Bengal and others [C.R.A. No.458 of 2018, IA No: CRAN 2 of 2020].

The facts of the case are associated with the accused aging 22 years and the victim being 16 and half years. Such a case was appealed against a conviction under Section 376(1) of the Indian Penal Code, 1860 and Section 4 of the Protection of Children from Sexual Offences Act, 2012 and sentence awarded under Section 376(1) of the IPC. 

The learned advocate representing the appellant contended that no evidence was produced regarding hymen injury of the victim that connects the accused, which is sufficient to convict the appellant on either of the charges. It was further argued by the learned Advocate for the appellant that the two Doctors’ reports do not validate the prosecution case. In addition, no occurrence of rape was alleged by the victim during medical examinations and the pregnancy report was reported negative too. There were several inconsistencies in the submissions by the prosecution witnesses, argued by the appellant. 

During the cross-examination, the victim mentioned that she “shouted” during the incident. However, going through the place of occurrence the room was situated between two shops – a pharmacy and a sweet shop. A burial ground and a busy bus stand were nearby too. It was quite unlikely that none heard the cry of the victim. The victim mentioned that the time of occurrence to be 2 p.m. on August 12, 2017, whereas the FIR was lodged on August 16, 2017. 

The counsel of the state stated that the delay between the alleged incident and the complaint was justified since there was an attempt to give the victim in marriage to the accused, which is perfectly reasonable considering the present social structure of rural India. Learned counsel representing the State cites a judgment of the Hon’ble Supreme Court, reported at, AIR 2001 SC 2075 [State of Himachal Pradesh Vs. Gyanchand] and stated that all submissions involved in the present case had been covered in the said judgment. The prosecutor representing the state contended that all the submissions laid down in the cited judgment show that the accused was guilty of the offenses he was charged with. 

All the facts stated by both the parties and the facts obtained from the cross-examination of the victim indicate that there were several occasions of the consensual physical relationship between both parties. Therefore, the offense under Section 376(1), IPC, although a minor’s consent is of no significance. 

The Hon’ble High Court of Calcutta stated “… the victim girl was admittedly 16 ½ years old and studied in Class XII at the relevant point of time. She was not naïve enough not to know the implication of sexual intercourse; rather, the victim admittedly had a physical relationship with the accused, who was also of a very young age, on several occasions prior to the incident. Although the consent of a minor is not a good consent in law, and cannot be taken into account as ‘consent’ as such, the expression ‘penetration’ as envisaged in the POCSO Act has to be taken to mean a positive, unilateral act on the part of the accused. Consensual participatory intercourse, in view of the passion involved, need not always make penetration, by itself, an unilateral positive act of the accused but might also be a union between two persons out of their own volition …  The psyche of the parties and the maturity level of the victim are also relevant factors to be taken into consideration to decide whether the penetration was a unilateral and positive act on the part of the male.” 

It seemed that the prosecution failed to form the chain of events leading to the alleged offence, which would raise an assumption under Section 29 of the POCSO Act. Hence, simply taking advantage of the literal definition of the term ‘child’, the accused/appellant cannot be proved guilty of an offence under Section 3 of the POCSO Act or Section 376(1) of the IPC. 

The Hon’ble Court held “the judgments of conviction and sentence impugned in the present appeal are vitiated by errors of law as well as fact and based upon an erroneous interpretation of the provisions of the POCSO Act as well as the IPC, … The appellant is thus acquitted and discharged from any condition or bond furnished by him in connection with bail, if granted by any court. In the event the appellant is in custody, he shall be immediately released”. 

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Judgment reviewed by Bipasha Kundu

The illegalities committed by respondent No.7 in collusion with officials of the Supplies Department, this was held in the judgement passed by a single bench judge comprising HON’BLE JUSTICE SHARAD KUMAR SHARMA,  in the matter [WPMS No.1876 of 2021].

Respondent No.7, was a fair price shop licence holder of Village Kishanpur, Jamalpur, District Haridwar. The subject matter of an inquiry came into action because of the irregularities allegedly committed by respondent No.7. The petitioner contends that the proceedings, which are being contemplated against respondent No.7, are in contravention to the proceedings, as contemplated under the Government Order dated 14.08.2013.

The petitioner has filed this writ of mandamus, with the following reliefs:-

• Directing the respondents to conduct a fair and impartial inquiry regarding the illegalities and irregularities being committed by respondent No.7.
• Issue a writ order like mandamus commanding and directing the respondents to take suitable action on the complaint.

They also mentioned that, if the status of the petitioner is taken into consideration, it has been argued by the Counsel, that the petitioner is a resident of the Village, and is one of the poorest person, who can maintain a writ petition for a direction for holding a fair inquiry under the premonition as if the inquiry would not be concluded following the law.

The writ petition looks into the nature of relief, which has been preferred, would not fall within the ambit of the writs of mandamus, and the circumstances under which, it could be issued, because there is no apparent breach of fundamental rights of the petitioner nor there is any infringement of his right, In fact, the entire action, which has been taken against the respondent No.7, is qua against the other respondents of the writ petition.

The petitioner individually can be told that he has got no right as such to seek a writ of mandamus.

The Hon’ble Court perused the facts,-“It thought that that the inquiry contemplated against respondent No.7, would is expected to be conducted by the Competent Authority following the law. Subject to the above observation, the writ petition stands dismissed accordingly”.

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Judgment Reviewed by: Mandira B.S.

Justice (Retd.) A.K. Sikri was appointed as the sole arbitrator by Hon’ble Mr. Justice Suresh Kumar Kait in the case of Jakson Power Pvt. Ltd. Versus Vikram Solar Pvt. Ltd. [ARB.P. 693/2021].

The facts of the present case are such that the petitioner agreed with the present respondent to purchase the Solar Photo Voltaic modules under the Special Purchase Agreement dated 06.08.2012. According to the present agreement the respondent is required to sell, supply, and deliver SPV modules in Rajasthan of technical specification amounting to Rs.100.625 crores between September 2012 to January 2013. The agreement between the parties was to purchase Solar Photo Voltaic modules under the Special Purchase Agreement dated 06.08.2012.

According to the petitioner, the respondents were informed that the products are of sub-standard quality and not generating the minimum amount of power guaranteed. The petitioner engaged an independent firm named “PV Diagnostics” to check the specification of the products, the firm found that the products were defective themselves, the report by the firm confirmed that the modules of the respondent were defective, has partial cracks, snail trails and also has bus bar corrosion in several places, thus in such circumstances, petitioner was constrained to send legal notice dated 17.02.2020 to the respondent for breach of Article 10 of the Agreement. Whereas the respondent’s claim is such that according to the site inspections committed by the respondent, the low power being generated by the product is due to the mishandling and mismanagement at the hands of the petitioner.

Thereafter the petitioner invoked the arbitrator and nominated its arbitrator, as per Clause 14 of the Agreement, read with section 21 of the Arbitration and Conciliation Act, 1996, and nominated its Arbitrator, to which no response has been given by the respondent to date. The Parties had requested the present court to adjudicate the appointment of an arbitrator to adjudicate the dispute which is pending in front of the parties.

After the request of the parties, the present High Court is pressed to appoint an arbitrator to be appointed to settle the dispute between the parties. Accordingly Justice (Retd.) A.K. Sikri is appointed to adjudicate the present dispute. The fees of the present arbitrator shall be decided according to the fourth schedule of the arbitration and conciliation act, 1996, and in compliance with section 12 of the act. After this appointment, the present petition is dismissed by the High Court.

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Judgment Reviewed by: Ashwin Singh