Category Archives: Blog

In the case of Umesh Kumar Sharma Vs State of Uttarakhand & Ors. [Transfer Petition Crl No. 534-536 of 2019] Supreme Court held that only when fair justice is in peril, a plea for transfer might be considered.

The present petitions were filed under Section 406 of the Code of Criminal Procedure, 1973 read with Order XXXIX of the Supreme Court Rules seeking transfer of three criminal cases pending before different courts in Dehradun to competent courts in Delhi or some other courts outside the State of Uttarakhand.

The petitioner submitted that he apprehends a threat to his life and will be prejudiced in conducting his defense in the courts at Dehradun. The basic premise for such apprehension was on account of his work as an investigative journalist against the Ruling dispensation, the State was targeting the petitioner for vindictive prosecution. It was pointed out that as a journalist the petitioner has conducted sting operations against the Chief Minister, his relatives, and associates in the State of Uttarakhand and therefore he was being targeted for malicious prosecution within the State.

The Respondent State submitted that the petitioner has failed to demonstrate how and in what manner, he will be prejudiced if the trials continue in the courts at Dehradun. According to the respondent, the effort of the petitioner was filed only to delay the proceedings. It was also pointed out that since the investigation in all three cases is concluded and the charge sheet has been filed, the apprehension of interference in the cases by the State administration as contended was wholly unfounded. The government advocate then submitted that the transfer of criminal cases should be rare and exception since it impacts the credibility of the Courts in Uttarakhand.

The court referred to the list of cases pending against the petitioner. Out of those cases, 17 cases were related to the State of Uttarakhand, 4 cases were from the State of Uttar Pradesh, 5 cases relate to the State of West Bengal, 2 cases were from Delhi out of which one is under investigation of the CBI, and another one at Ranchi, Jharkhand. Whether those cases are without merit or otherwise, can be determined only through trial. However, the numbers do suggest that the petitioner is not an ordinary person. It was also noted that the State had withdrawn prosecution in many cases filed against the petitioner.

The court relied on the case of Maneka Sanjay Gandhi vs. Rani Jethmalani (1979) 4 SCC 167, where the three-Judge Bench, had enunciated the law on transfer under Section 406 CrPC with the following observation – “Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances”.

The court observed that “The above legal enunciations made it amply clear that transfer power under section 406 of the Code was to be invoked sparingly. The court however will have to be fully satisfied that impartial trial is not possible. Equally important is to verify that the apprehension of not getting a level playing field, is based on some credible material and not just conjectures and surmises. While assurance of a fair trial needs to be respected, the plea for transfer of case should not be entertained on mere apprehension of a hyper sensitive person.”

Court further re-iterated that, “While considering a plea for transfer, the convenience of parties would be a relevant consideration. It can’t just be the convenience of the petitioner but also of the Complainant, the Witnesses, the Prosecution besides the larger issue of trial being conducted under the jurisdictional Court. When relative convenience and difficulties of all the parties involved in the process are taken into account, it is clear that the petitioner has failed to make out a credible case for transfer of trial to alternative venues outside the State.”

Finally, after hearing both the parties court held that, “When the nature of the three cases are examined, it is seen that two of the cases are property and Will related matters. One of this case is pending for last over a decade. Therefore, this court finds it difficult to accept that the cases are on account of journalistic activities of the petitioner. In view of the forgoing, these Transfer Petitions are dismissed.”

Click here to read the judgment

In the case of Satish Chander Ahuja v. Sneha Ahuja, (CIVIL APPEAL NO.2483 of 2020), the Supreme Court had held that in the matter of domestic violence cases, the wife is entitled to claim the right of residence which belongs to relatives of the husband. The judges, in this case, were Justice Ashok Bhushan, R. Subhash Reddy, and M.R. Shah.

The facts of the case initiate from the situation when the appeal has been filed by Satish Chander Ahuja, the plaintiff questioning the judgment of Delhi High Court dated 18.12.2019, which had set aside the decree granted in favor of the plaintiff dated 08.04.2019 under Order XII Rule 6 of Civil Procedure Code, decreeing the suit filed by the plaintiff for a mandatory and permanent injunction. The High Court after setting aside the decree of the Trial Court has remanded the matter back to the Trial Court for fresh adjudication in accordance with the directions given by the High Court. The plaintiff aggrieved by the judgment of the High Court has come up in this appeal to SC.

The appellant by deed dated 12.01.1983 purchased property bearing No.D-1077, New Friends Colony, New Delhi. The son of the appellant, Raveen Ahuja was married to the respondent, Sneha Ahuja on 04.03.1995. After marriage, the respondent started living on the first floor of the house No.D-1077, Friends Colony, New Delhi along with her husband. There being marital discord between Raveen and Sneha, in July 2014, Raveen moved out of the first floor and started staying in the guest room of the ground floor.

A separate kitchen was started by the respondent, in the year 2004, on the first floor of the house. Raveen, the husband of the respondent filed a Divorce Petition under Section 13(1)(ia) and (iii) of Hindu Marriage Act, 1955 for a decree of divorce on the ground of cruelty against the respondent, Sneha Ahuja which is still believed to be pending. After filing of the Divorce Petition, the respondent also filed an application under Section 12 of Act, 2005 impleading Raveen Ahuja as respondent No.1, Shri Satish Ahuja, respondent No.2 and Dr. Prem Kanta Ahuja (mother-in-law of the respondent), respondent No.3. In the complaint, it was alleged that Sneha Ahuja has been subjected to severe emotional and mental abuse by the respondents. In the application respondent prayed for several orders under the Protection of Women from Domestic Violence Act Act, 2005. At the same time the appellant filed a suit, impleading the respondent as sole-defendant for mandatory and permanent injunction and also for recovery of damages/mesne profit. The plaintiff was a senior citizen of 76 years of age, and had undergone angioplasty twice and suffers from hypertension and high blood pressure. Thus the plaintiff pleads that the defendant had filed a false and a frivolous case against him and his wife, therefore he prays for the removal of the defendant suit property so as to live a peaceful life.

The judges in this held that :

“In the case of in S.R. Batra and Anr. Vs. Taruna Batra, (2007) 3 SCC 169, where two-Judge Bench of this Court held that the wife is entitled only to claim a right under Section 17(1) to residence in a shared household and a shared household would only mean the house belonging to or taken on rent by the husband or the house which belongs to the joint family of which the husband is a member.”

“It is submitted that the complaint under the Act, 2005 filed by the respondent was only a counter blast to the Divorce Petition dated 28.11.2014 filed by the husband of the respondent. It is submitted that Sections 17 and 19 of the Act, 2005 do not contemplate a proprietary or ownership right in the shared household for the aggrieved person. Shri Jauhar further submits that her claim for alternate accommodation can be made qua husband and not qua the father-in-law because her relationship in the household emanates pursuant to the marriage and father-in-law cannot be under a statutory obligation to provide for the residence and maintenance of daughter-in-law.”

Thus “from the submissions of the learned counsel for the parties following questions arise for determination in this appeal:

(1) Whether definition of shared household under Section 2(s) of the Protection of Women from Domestic Violence Act, 2005 has to be read to mean that shared household can only be that household which is household of joint family or in which husband of the aggrieved person has a share?

(2) Whether judgment of this Court in S.R. Batra and Anr. Vs. Taruna Batra, (2007) 3 SCC 169 has not correctly interpreted the provision of Section 2(s) of Protection of Women from Domestic Violence Act, 2005 and does not lay down a correct law?”

Thus the court had held “Both the above questions being inter-related are being taken together.  We may recapitulate the facts of the present case in reference to shared household.  The suit property was purchased by appellant in the year 1983 in his name.  The respondent got married to the son of appellant on 04.03.1995 and after marriage she was living in first floor of suit property. Till July 2004, the husband of respondent also lived in first floor where after due to marital discord, he shifted in the guest room on the ground floor.  In the suit filed by the appellant for mandatory and permanent injunction, appellant pleaded that he is the sole owner of the house and prayed for removal of respondent, his daughter-in-law from the first floor of the house.  The respondent had filed a written statement in the suit and claimed that the suit property is a shared household where the respondent had right to reside.”

The definition of “shared household given under Section 2(s) as noticed above beginning with expression “shared household means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes…………….”

Thus “From the above discussions, we arrive at following conclusions:

(i) The pendency of proceedings under Act, 2005 or any order interim or final passed under D.V. Act under Section 19 regarding right of residence is not an embargo for initiating or continuing any civil proceedings, which relate to the subject matter of order in terim or final passed in proceedings under D.V. Act, 2005. 

(ii) The judgment or order of criminal court granting an interim or final relief under Section 19 of D.V. Act, 2005 are relevant within the meaning of Section 43 of the Evidence Act and can be referred to and looked into by the civil court.

(iii) A civil court is to determine the issues in civil proceedings on the basis of evidence, which has been led by the parties before the civil court.

(iv) In the facts of the present case, suit filed in civil court for mandatory and permanent injunction was fully maintainable and the issues raised by the appellant as well as by the defendant claiming a right under Section 19 were to be addressed and decided on the basis of evidence, which is led by the par ties in the suit.

 In view of the foregoing discussions, we are of the considered opinion that High Court has rightly set aside the decree of the Trial Court and remanded the matter for fresh adjudication. With the observations as above, the appeal is dismissed.  No Costs.”

Click here to read the judgment

In the case of State of UP Vs Sudhir Kumar Singh & Ors [Civil Appeal No. 3498 of 2020] Supreme Court held that natural justice is a flexible tool in the hands of the judiciary to reach out in fit cases to remedy injustice. The breach of the audi alteram partem rule cannot by itself, without more, lead to the conclusion that prejudice is thereby caused.

An e-tender notice was issued by the U.P. State Warehousing Corporation (Corporation) for unloading/loading of foodgrains/fertilizer bags from/into railway wagons, trucks etc., stacking the foodgrains/fertilizers in bags, bagging, weighment, standardisation, cleaning of foodgrains/fertilizers etc. and transporting of foodgrains/fertilizers etc. from Railway Station to Corporation godowns or vice versa or transporting them from any place to any other place for the Vindhyachal (Mirzapur) Region. Ten days later the said tender was cancelled by the Corporation due to administrative reasons. An e-tender was again published in the same terms, and so far as the region Vindhyachal (Mirzapur) is concerned, it was for the “appointment of Handling and Transport Contractor for food grain in FCI and alleged material etc.” Price bids of technically qualified bidders were then opened. Then the Managing Director of the Corporation cancelled the aforesaid tender apparently on the ground that it was ‘impractical’ to go ahead with such tender. The tender was reissued for the same workable capacity and estimated annual value of the contract.

Sudhir Kumar Singh, Respondent no 1 was declared as the successful bidder for the Bhawanipur centre. An agreement was entered into between the Corporation and Respondent for execution of the work under the tender, which began on and from that day, and continued for a period of over one year. Meanwhile, two complaints were made by one Shri Pramod Kumar Singh of the Purvanchal Trucker Owner’s Association to the Principal Secretary of the State of U.P. regarding financial irregularities that occurred in the issuance of the e-tender. As a result of this letter, the Managing Director of the Corporation held an ex parte enquiry into the matter, and insofar as Respondent No.1 was concerned, the Managing Director went into the cancellation of the previous tenderand into the comparative details of rates received for these four centres earlier, as compared to the rates of the same tendered quantity of the tender, and found the latter rates to be extremely high. Pursuant to this letter, the aforesaid tenders were then cancelled on and disciplinary proceedings were taken against certain employees of the Corporation.

Meanwhile, Respondent No.1 filed Writ Petition no. 25389 of 2019 in July 2019 before the High Court of Judicature at Allahabad, in which he challenged the ‘illegal and arbitrary’ termination of the contract with the Corporation after successful completion of over one year of a two-year term, and prayed for the setting aside of the Corporation’s cancellation order. The High Court concluded that since the entire proceedings were conducted behind the back of Respondent No.1, and considering that the tender notice had never been challenged by anybody in a court of law, an ex parte appraisal of the complaints received was done in a hurry by the Managing Director of the Corporation and the learned Commissioner, and was liable to be set aside on several grounds, the single most important one – insofar as Respondent No.1 is concerned – being the breach of natural justice.

Court observed that, “Whenever a plea of breach of natural justice is made against the State, the said plea, if found sustainable, sounds in constitutional law as arbitrary State action, which attracts the provisions of Article 14 of the Constitution of India. Judged by the touchstone of these tests, it is clear that Respondent No.1 has been completely in the dark so far as the cancellation of the award of tender in his favour is concerned, the audi alteram partem rule having been breached in its entirety. We, therefore, uphold the impugned judgment of the High Court on the ground that natural justice has indeed been breached in the facts of the present case, not being a case of admitted facts leading to the grant of a futile writ, and that prejudice has indeed been caused to Respondent No.1.”

Click to read judgement

In the case of Saravanan Vs State represented by the Inspector of Police [Arising from S.L.P. (Criminal) Nos.43864387/ 2020] Hon’ble Supreme Court held that the only requirement for getting the default bail/statutory bail under Section 167(2), Cr.P.C. is that the accused is in jail for more than 60 or 90 days.

The appellant was arrested and remanded to the judicial custody for the offences punishable under Section 420 of the IPC. The appellant filed an application before the learned Judicial Magistrate seeking bail under Section 437 Cr.P.C. The wife of the appellant filed an affidavit before the learned Magistrate and assured to pay Seven Lakhs of the alleged amount of Rupees Fifteen lakhs Sixty Seven thousand Three hundred thirty eight only. The learned Magistrate released the appellant on bail on the condition to deposit Rupees Seven Lakh in the court and after release pay the remaining amount.

Feeling aggrieved and dissatisfied with condition of the order passed by the learned Magistrate releasing the appellant on bail, the appellant approached the High Court. The High Court dismissed the said application with liberty to the appellant to approach the Magistrate Court for any modification and observed that if any modification is required, the same may be considered by the Magistrate. Thereafter, the appellant filed an application before the learned Sessions Court to release the appellant on default bail/statutory bail under Section 167(2), Cr.P.C. The appellant was arrested and remanded for more than 101 days and the investigation was not completed and the police had not filed the final report within the period provided under Section 167 Cr.P.C. The said application came to be dismissed by the learned Sessions Court on the ground that earlier when the appellant applied for regular bail and which was allowed on condition to deposit money in the Court and the same had not been complied with, and despite the liberty reserved by the High Court to approach the Magistrate Court for modification of the conditions, instead of doing so, the appellant had filed an application for default bail/statutory bail under Section 167(2), Cr.P.C., therefore, the learned Sessions Court dismissed the said application.

Feeling aggrieved, the appellant approached the High Court and prayed to release the appellant on default bail/statutory bail. It was the case on behalf of the appellant that non-deposit of any amount which was required to be deposited pursuant to the order passed by the learned Magistrate, imposed while releasing the appellant on regular bail under Section 437, Cr.P.C., shall not come in the way of the appellant in getting default bail/statutory bail under Section 167(2), Cr.P.C. High Court had imposed the condition that the appellant shall deposit a sum of Rs.8,00,000/before the learned Magistrate.

It was submitted by the appellant that as observed by this Court in catena of decisions, the scheme of Code of Criminal Procedure delineates that provisions of Section 167 Cr.P.C. give due regard to the personal liberty of a person. Without submission of charge sheet within 60 days or 90 days, as may be applicable, an accused cannot be detained by the Police. It was submitted that the conditions imposed by the High Court while releasing the appellant on default bail/statutory bail are against the scheme of Section 167, Cr. P.C.

Court observed that, “We are of the opinion that the High Court has committed a grave error in imposing condition that the appellant shall deposit a sum of Rs.8,00,000/while releasing the appellant on default bail/statutory bail. It appears that the High Court has imposed such a condition taking into consideration the fact that earlier at the time of hearing of the regular bail application, before the learned Magistrate, the wife of the appellant filed an affidavit agreeing to deposit Rs.7,00,000/.”

Court held that, “Therefore, the only requirement for getting the default bail/statutory bail under Section 167(2), Cr.P.C. is that the accused is in jail for more than 60 or 90 days, as the case may be, and within 60 or 90 days, as the case may be, the investigation is not completed and no charge-sheet is filed by 60th or 90th day and the accused applies for default bail and is prepared to furnish bail. No other condition of deposit of the alleged amount involved can be imposed.”

Click to read judgement

In the case of Mahasemam Trust v. Union of India & Ors.,(W.P.(MD)No.8037 of 2020 and W.M.P.(MD)Nos.7469 & 9960 of 2020), the Madras High Court had held that the  credit rating agencies cannot be considered as discharging public function or public duty. The judge in this case was Hon’ble Justice G.R.Swaminathan.

The facts of the case are that the writ petitioner is a registered public trust. It basically focuses on activities like  micro-financing women Self Help Groups. It is a Non-Banking Finance Company (NBFC).   The petitioner is a client of the third respondent which is a credit rating agency.  The rating agency has downgraded the petitioner’s bank loans’ rating to ‘IND  BB+’ from ‘IND BBB-‘.  Various term loans are availed by the petitioners from various banks and had fixed ambitious targets for the  coming year. The petitioner’s track record of repayment is claimed to be very good. Following Covid-19 pandemic outbreak, the  Reserve Bank of India has announced moratorium for the period  upto 31st May, 2020 vide Circular dated 27.03.2020. Following the, the petitioner has also granted the benefit of moratorium  to all the joint liability Self Help Groups, in order to enable them  to tide over the economic fallout arising out of the pandemic  disruption. According to the petitioner, the third respondent has downgraded the petitioner’s rating disregarding the said Circular.  Since this will have direct impact or bearing on the capacity of the petitioner to raise loans from the banking institutions, this writ petition came  to be filed.  

The court had held that, “The learned Senior Counsel first took me through the  statutory scheme set out in the Securities and Exchange Board of  India(Credit Rating Agencies) Regulations, 1999. As per Clause 2(f) of the Regulations, the petitioner qualifies as a client since  their securities are rated by the third respondent/Credit Rating  Agency.  His core argument is that the Credit Rating Agencies  discharge public functions and therefore they are clearly  amenable to Writ jurisdiction. Though the dispute between the  parties may appear to be contractual in nature, in substance, it  throws up questions of public law. No ouster clause in the rating  agreement can resist the jurisdictional reach of this Court under  Article 226 of the Constitution of India.  The petitioner is based in  Madurai.   Substantial part of the cause of action arose within the  territorial jurisdiction of this Court.  This Court does have the  territorial jurisdiction to deal with the issue. The learned Senior Counsel also seriously faulted the stand taken by the learned  Standing counsel for the Reserve Bank of India as well as the  Securities and Exchange Board of India before this Court.  He took  me through the contents of the Circular dated 27.03.2020 issued  by the Reserve Bank of India and that of the Circular dated  30.03.2020 issued by the Securities and Exchange Board of India.”

“According to the learned Senior Counsel, even a bare textual reading of these two circulars can lead to only one conclusion,  namely, that the events that have taken place during the moratorium period cannot be factored into the rating process. The learned Senior Counsel placed reliance on quite a few case laws.”

“Rating is an exercise that is carried out by financial  analysts and professionals.  Writ Court should not assume  jurisdiction in matters which are better handled by experts.  It is  not as if the petitioner is without remedy.  There is provision for  in-house appeal.  It is certainly not akin to appealing from caesar  to caesar’s wife.   In any event, in view of clause 29(2)(c), the  petitioner can definitely complain before SEBI against the  impugned action of the third respondent.”

“Rating exercise is all about capturing the “as is  condition” of the signified. Rating is expressed through signs and symbols to the world at large.  Ironically the effect is far from symbolic.  It is real.  Semiotics is the academic discipline devoted to the study of symbols and signs and their meaning.   Ferdinand d Saussure wrote that one characteristic of the symbol is that it is  never wholly arbitrary.   Symbol should correctly signify.   There should be nothing misleading about it.  A symbol in order to carry abiding credibility and lasting value should satisfy the test of truth function.  It is like a Thermometer. The instrument should read the body temperature correctly.  If I am running a temperature of 101 degree Fahrenheit, the thermometer should indicate it exactly and not as 100.   Credit Rating indicates the fiscal health of the person or the institution concerned. It is one thing to say that notwithstanding the actual position, ameliorative relief must be provided. It is one thing to say that loans should be provided notwithstanding the downgrading. But it would be a completely different matter to say that rating should not reflect the actual state of affairs.  Any remedial treatment must be preceded by correct diagnosis. Proper diagnosis can be made only if the symptoms are read correctly.  If the patient is going to insist that the symptoms should be disregarded, then there can be no proper diagnosis, not to speak of the resulting treatment.”

“Since I have held that a) the third respondent is a  private body and not a “State” within the meaning of Article 12 of  the Constitution  b) by rating its clients, the third respondent is  not discharging any public function  c) the subject matter involves analysis by financial experts d) and the petitioner is having  effective alternative remedies,  I dismiss this writ petition as not  maintainable.    I make it clear that I have not gone into the merits of the matter.  The petitioner is at liberty to avail the in-house remedy available to them or move Securities and Exchange Board of India(SEBI) directly by filing a complaint against the third  respondent.  Whatever remedy that the petitioner may avail, the same shall be attended to with utmost expedition. All the other contentions and remedies of the petitioner are left open. No costs. Consequently, connected miscellaneous petitions are closed.”

Click to read judgement