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“Land Dispute Tragedy: Orissa HC Convicted the Appellant for Spousal Murder with a Spade”

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Case Title: Jaga @ Jagabandhu Mohalik v. State of Orissa

Case No: JCRLA No. 58 of 2008

Decided on:4th January, 2024

CORAM: Hon’ble S K Sahoo, J. & S K Mishra, J.

 

Facts of the Case

In the case of Jaga @ Jagabandhu Mohalik, the appellant faced trial for an offence under Section 302 of the Indian Penal Code. According to the prosecution, the appellant and the deceased had been married for 19 years, residing in Saunpada for 6 to 7 months. On the night of 04/05/2005, the informant discovered the deceased with fatal head injuries caused by a nearby shovel. The appellant, alleged to have a history of attacking the deceased, was charged at Balasore Sadar police station. The investigating official followed proper procedures, conducted a post-mortem examination, and presented evidence, including the inquest report, shovel confiscation, blood-stained dirt, and witness testimonies, including the deceased’s brother and uncle who attested to prior attacks and threats. P.W. 5 claimed to have witnessed the appellant delivering fatal blows with a shovel. The appellant’s son supported the prosecution’s case under Section 164 of the Criminal Procedure Code. The trial court, following due process, convicted the appellant and sentenced him to life imprisonment.

Legal Provisions

The case involves the appellant, Jaga @ Jagabandhu Mohalik, who has been convicted under Section 302 of the Indian Penal Code for the murder of the deceased, resulting in a life sentence. The prosecution’s case alleges that the appellant abused the deceased, leading to her death, with critical evidence including spade injuries on her head. The legal proceedings encompass the filing of an FIR, police investigation, post-mortem examination, and presentation of evidence in the trial court, where witness testimonies, particularly from family members and those who witnessed the incident, play a crucial role. The case revolves around the application of criminal law, specifically Section 302 of the IPC, addressing murder, and involves procedural aspects such as inquest reports, seizure lists, and post-mortem examination reports to establish the prosecution’s case. The motive for the alleged murder is tied to a property dispute and threats made by the appellant, emphasizing both substantive criminal law and procedural elements in the legal framework.

Issues

The case of Jaga @ Jagabandhu Mohalik, who was convicted of murdering his wife under Section 302 of the Indian Penal Code, raises serious legal issues. One significant difficulty is proving the appellant’s guilt beyond a reasonable doubt, which is mostly based on witness testimony, including comments from the deceased’s brother and uncle. The reliance on witnesses raises questions regarding credibility and possible biases. Another issue is the quality of the police investigation, which was hampered by the difficulty to find the appellant, creating concerns about thoroughness. The seizure and forensic investigation of the crime shovel and blood-stained earth may raise concerns about evidence custody and forensic accuracy. The legal complexity involving evidence, witness reliability, and investigative methods may influence the final decision on the appellant’s guilt.

Courts analysis and decision

In the case, the appellant was tried and convicted under Section 302 of the Indian Penal Code, receiving a life sentence on January 15, 2008. The prosecution’s case, based on a first information report filed on May 5, 2005, alleged that the appellant had repeatedly abused his wife, resulting in her death on the night of May 4th/5th, 2005, through fatal injuries inflicted with a shovel. The court heard testimony from witnesses, including the deceased’s brother and uncle, detailing past attacks and threats by the appellant. The court underscored the thoroughness of the investigation, which included an inquest report, post-mortem examination, and the seizure of relevant materials. The court’s findings highlighted a history of violence in the appellant’s behavior toward the deceased, supported by compelling evidence, leading to the conclusion that the appellant was responsible for the death. The judgment emphasized the significance of witness statements and comprehensive investigative methods in establishing guilt in criminal proceedings.

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 Written by- Aastha Ganesh Tiwari

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“MSMEs vs. Banks: Bombay High Court Decision on NPA Classification and Applicability of SARFAESI Act”

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Case Title: Hemlata Vijaykumar Thakur vs Board Of Directors Of Kalyan Janta Co-Op

Case No: WRIT PETITION NO. 4620 OF 2022

Decided on:12th January, 2024

CORAM: Hon’ble B. P. Colabawalla J. & M.M. Sathaye, J.

 

Facts of the Case

The case involves multiple petitions filed by Micro, Small, and Medium Enterprises (MSMEs) under Article 226 of the Indian Constitution, challenging the designation of their accounts as Non-Performing Assets (NPAs) by Respondent Banks or Non-Banking Financial Companies (NBFCs) under Section 13(2) of the SARFAESI Act, 2002. The MSMEs assert that the Respondent Banks/NBFCs failed to adhere to the procedural requirements outlined in a May 29, 2015 Notification under Section 9 of the MSMED Act, specifically concerning the restructuring process, before classifying them as NPAs. The petitioners argue that such non-compliance renders the categorization unlawful and challenges the applicability of the SARFAESI Act, 2002, given the comprehensive provisions of the MSMED Act for handling stressed MSME accounts. The lead petition seeks declarations, including a challenge to the constitutionality of a government notification, a request for account classification records, and an injunction to halt further proceedings by Respondent NBFCs under the SARFAESI Act, 2002. Legal counsel Mr. Nedumpara emphasizes the overarching argument across all petitions regarding alleged procedural irregularities and illegalities in the NPA classification process.

Legal Provisions

The legislative provisions in issue are the Micro, Small, and Medium Enterprises Development Act, 2006 (MSMED Act) and the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act, 2002). The challenge stems from a Notification dated May 29, 2015, issued under Section 9 of the MSMED Act. The petitioners, who are lawfully registered under the MSMED Act and have received loans or financial assistance from Respondent Banks or Non-Banking Financial Companies (NBFCs), challenge the designation of their accounts as Non-Performing Assets (NPAs) under Section 13(2) of the SARFAESI Act, 2002. The essence of their claim is that the Respondent Banks/NBFCs failed to follow the restructuring procedure stated in the 2015 Notification before being classified as NPAs.

Issues

The legal issue concerns the correct use of the mechanism created by the MSMED Act, namely the Notification of 2015, prior to designating MSMEs as NPAs under the SARFAESI Act, 2002. The petitioners argue that failing to follow this established method makes the categorization as NPAs and subsequent proceedings, such as notifications under Section 13(2) of the SARFAESI Act, 2002, unconstitutional. The central issue is whether the Respondent Banks/NBFCs breached the statutory provisions of the MSMED Act and the related notification, resulting in the illegality of the NPA classification and subsequent actions under the SARFAESI Act, 2002.

The petitioners seek a variety of declarations, including a challenge to the application of the SARFAESI Act, 2002, and the validity of certain notices, with the goal of establishing that the measures taken against them are unlawful ab initio owing to claimed violations of legal processes.

Courts analysis and decision

The court examined a collection of petitions contesting Respondent Banks’ and Non-Banking Financial Companies’ (NBFCs) acts based on a Notification dated May 29, 2015, issued under Section 9 of the Micro, Small, and Medium Enterprises Development Act, 2006 (MSMED Act). The petitioners, who were lawfully registered under the MSMED Act, protested their accounts’ designation as Non-Performing Assets (NPAs) under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act, 2002). The fundamental issue was that the Respondent Banks/NBFCs did not follow the restructuring procedure stated in the 2015 Notification before being designated as NPAs.

After reviewing the arguments, the court determined that the Banks/NBFCs were not required to commence the restructuring process without an application from the petitioners/MSMEs. The court dismissed the narrow argument under consideration, noting that the petitions lacked merit. However, it allowed the petitioners to address other problems in their petitions on a case-by-case basis utilising alternative remedies provided under the law. The court noted that it had not issued a view on the other problems. Furthermore, the judgement emphasised that where petitions for restructuring were ongoing, the involved Respondent Banks or Financial Institutions were free to make a decision and quickly notify the MSMEs. The court denied all interim motions and vacated any granted stays until extended by the Supreme Court within two weeks, as requested by the petitioners’ lawyers.

 

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Bail Triumph: Landmark Judgment in INDRA MOHAN BOHRA v. NATIONAL INVESTIGATION AGENCY—Constitutional Rights Prevail Over Statutory Restrictions.

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Case Title: INDRA MOHAN BOHRA V. NATIONAL INVESTIGATION AGENCY REP. BY THE SPECIAL P.P, ASSAM

Case No: CRL.A./275/2023

Decided on:  11 January, 2024

CORAM: JUSTICE MICHAEL ZOTHANKHUMA, JUSTICE MALASRI NANDI

 

Facts of the Case

The case at hand involves an appeal filed by Indra Mohan Bora against the order dated 08.06.2023, issued by the learned Special Judge, NIA, Assam, Guwahati, rejecting the bail application submitted by the appellant. The background of the case stems from a grenade blast that occurred on 15.05.2019, allegedly thrown by the accused No. (A-1) Pappu Koch Bokoliyal. An FIR was filed, leading to the registration of Geetanagar Police Station Case No.210/2019 under various sections of the Indian Penal Code (IPC), Explosive Substance Act, and Unlawful Activities (Prevention) Act (UA (P) Act). Subsequently, the Ministry of Home Affairs directed the National Investigation Agency (NIA) to take over the investigation. The appellant, Indra Mohan Bora, is the accused no.(A-5) in the charge-sheet. The appeal challenges the denial of bail based on the impugned order, and the core contention revolves around the appellant’s alleged involvement in providing logistic support to Pappu Koch, a member of the terrorist organization ULFA ( I).

Legal Provisions          

Section 43D(5) of UA(P) Act: Governs bail provisions for offenses under UA(P) Act, restricting release on bail unless the Public Prosecutor is heard and the court finds no reasonable ground to believe the accusation is prima facie true. Article 21 of the Constitution: Guarantees the right to life and personal liberty, emphasizing the protection of fundamental rights even during legal proceedings. Supreme Court Decision in KA Najeeb Case: The judgment acknowledges the coexistence of statutory restrictions on bail and constitutional court powers, emphasizing the need to balance both.

Issues

Bail Rejection: The primary issue revolves around the rejection of bail by the learned Special Judge, NIA, Assam, and the grounds on which such denial was based. Accusations Against the Appellant: The case involves accusations against Indra Mohan Bora concerning his alleged association with Pappu Koch and his purported role in supporting the grenade blast incident. Legal Rights Violation: The appellant asserts a violation of his rights under Article 21 of the Constitution of India, contending that prolonged judicial custody without completing the trial infringes upon his constitutional rights. Comparison with Co-Accused: The appellant draws parallels with co-accused Amrit Ballav Goswami and Prakash Raj Konwar, highlighting their release on bail in similar circumstances.

Courts Analysis and Decision

The court analyzed the provisions of Section 43D (5) of the UA(P) Act, recognizing the restrictions on bail but asserting the constitutional court’s authority to grant bail based on Article 21. Referring to the KA Najeeb case, the court emphasized that the statutory restrictions should yield if there is a likelihood of the trial not being completed within a reasonable time, and the period of incarceration exceeds a substantial part of the prescribed sentence. In evaluating the charges against the appellant under Sections 18, 19, 38, and 39 of the UA (P) Act, the court acknowledged the framing of charges but highlighted the need to reevaluate whether the accusations are prima facie true. It noted the absence of evidence linking the appellant directly to the grenade blast and emphasized the inadmissibility of Section 161 Cr.P.C. statements as substantive evidence. The court drew comparisons with the cases of co-accused Amrit Ballav Goswami and Prakash Raj Konwar, both of whom were granted bail. The judgment stressed the lack of evidence indicating the appellant’s direct involvement in the blast and questioned the reliance on statements without evidentiary value. Ultimately, considering the appellant’s prolonged custody, the incomplete examination of witnesses, and the bail granted to similar co-accused, the court granted bail to Indra Mohan Bora. The decision included specific conditions to ensure his attendance at the trial and prevent any interference with witnesses.

 

 

 

 

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“Kerala HC Issues Groundbreaking Verdict: Halts Unlawful Quarrying, Safeguarding Environmental Norms and Protected Lands”

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Case Title: K.SEKHARAN V. STATE OF KERALA AND ORS..

Case No: WP © NO. 7203 OF 2023

Decided on:  15 JANUARY, 2024

CORAM: JUSTICE VIJU ABRAHAM

 

Facts of the Case

The matter pertains to two writ petitions, W.P (C) Nos.7203 of 2023 and 15771 of 2023, challenging quarrying activities conducted by the 11th respondent. In W.P (C) No.7203 of 2023, the petitioner, residing within 50 meters of the quarry operated by the 11th respondent, alleges illegal quarrying operations. The quarry purportedly operates based on various clearances and licenses, including Environmental Clearance (Ext.P1), Consent to Operate (Ext.P2), Explosive License (Ext.P3), D&O License (Ext.P4), and Quarrying Lease (Ext.P5).

The petitioner’s contentions are twofold: first, the quarry operates within 10 kilometers of the Neyyar Wildlife Sanctuary, violating Ext.P6 issued by the Wildlife Warden; second, the quarrying operations occur in lands assigned for special purposes, contrary to the decision in Raphy John v. State of Kerala.

Legal Provisions

Kerala Land Assignment Act, 1960: Governs the assignment of lands for special purposes and outlines the rules for such assignments. Environmental Clearance (Ext.P1): Issued by the District Environmental Impact Assessment Authority, indicating compliance with environmental norms. Consent to Operate (Ext.P2): Granted by the Pollution Control Board, signifying compliance with pollution control regulations. Explosive License (Ext.P3): Issued by the Addl. District Magistrate, permitting the use of explosives in quarrying activities. D&O License (Ext.P4): License issued by the local authority, authorizing quarrying operations. Quarrying Lease (Ext.P5): Issued by the Director, Mining and Geology, allowing the 11th respondent to conduct quarrying activities in specified lands       

Issues

Whether the quarrying activities conducted by the 11th respondent are illegal based on the alleged proximity to Neyyar Wildlife Sanctuary? Whether the lands on which quarrying operations take place were assigned for special purposes, rendering such operations impermissible as per Raphy John’s case? Whether the various clearances and licenses obtained by the 11th respondent are valid in light of the petitioner’s contentions?

Courts Analysis and Decision

The court deliberated on the contentions of both parties. The petitioner relied on Raphy John’s case, arguing that quarrying operations in assigned lands are impermissible. The 11th respondent countered, asserting that the lands were not assigned and presented certificates (Exts.R11(a) to R11(c)) from revenue officials to substantiate their claim. The court considered the statements filed by the 8th and 10th respondents, Tahsildar and concerned authorities respectively, which confirmed that the lands covered by the Quarrying Lease (Ext.P5) were originally assigned under the Kerala Land Assignment Act, 1960. Given the facts and circumstances and considering the potential prejudice to the petitioner and damage to the property covered by Ext.P5, the court granted an interim stay on quarrying operations by the 11th respondent in the specified lands. The court emphasized the precedent set in Raphy John’s case, highlighting that quarrying activities in assigned lands are impermissible. The court directed respondents 2 and 5 to 8 to ensure immediate compliance with the interim order. The stay remains in effect until the final disposal of the writ petitions. This order reflects the court’s commitment to protecting assigned lands from unauthorized quarrying activities, aligning with the principles established in relevant legal provisions and prior judgments.

 

 

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Supreme Court Directs Central Government to Develop a Policy for Phasing Out Heavy-Duty Diesel Vehicles and Transitioning to BS-VI Compliant Alternatives.

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Case Title: Container Corporation of India Ltd v. Ajay Khera and ors

Case No: Civil Appeal No. 3798 of 2019

Decided on:  11th January, 2024

CORAM: THE HON’BLE MR. JUSTICE ABHAY S. OKA AND HON’BLE MR. JUSTICE PANKAJ MITHAL

Facts of the Case

A former Executive Director of the Central Warehousing Corporation initiated legal action by filing an original application with the National Green Tribunal (NGT), addressing concerns about pollution caused by the Inland Container Depot (ICD) at Tughlakabad. The applicant argued that the ICD, primarily used by trucks/trailers not destined for Delhi, contributed significantly to air pollution in the Delhi National Capital Region (NCR). The applicant proposed diverting truck/trailer traffic to other ICDs around Delhi to alleviate pollution.

The Container Corporation of India Ltd. (the appellant) contested the application, asserting that the ICD was strategically located to cater to Delhi’s needs without impacting residential areas. They highlighted the potential increase in pollution if cargo movement shifted from railways to roads.

The NGT issued interim orders and, through a March 8, 2019, order, directed the appellant to gradually transition diesel vehicles at the ICD to electric, hybrid, or CNG vehicles. Alternatively, the NGT suggested limiting the entry of diesel vehicles to satellite terminals (ICDs) outside Delhi, such as Dadri, Rewari, Ballabhgarh, Khatuawas, within six months. The NGT set an outer limit of six months for compliance and ordered the submission of an action plan within one month.

Issues

  1. The practicality of transitioning to CNG/electric/hybrid vehicles, as stipulated by the NGT in the contested order;
  2. Addressing the challenge of limiting and decreasing the entry of diesel vehicles not bound for the specified ICD and exploring the possibility of redirecting such vehicles to neighbouring ICDs;
  3. Dealing with the issues arising from congestion and insufficient parking facilities at Inland Container Depots (ICDs).

Court’s analysis and decision

The Supreme Court issued a directive instructing the Union of India to develop a comprehensive policy aimed at gradually discontinuing heavy-duty diesel vehicles and transitioning to vehicles compliant with Bharat Stage VI (BS VI) emissions standards. The Court set a deadline of six months for the formulation of this policy.

Additionally, the Court urged the Union to thoroughly assess the suggestions put forth by the Environment Pollution (Prevention and Control) Authority. This authority, established by the Court, is dedicated to enhancing the air quality in the Delhi-National Capital Region (NCR).

The Supreme Court, presided over by Justices Abhay S Oka and Pankaj Mithal, has mandated the ongoing exploration of alternative and more environmentally friendly sources for heavy-duty vehicles, such as Compressed Natural Gas (CNG), hybrid, and electric options. This directive emerged during the hearing of an appeal filed by the Container Corporation of India against the directives issued by the National Green Tribunal.

The case originated from concerns raised by a former executive at the Central Warehousing Corporation regarding pollution caused by heavy-duty diesel trailer trucks in and around Delhi. The National Green Tribunal had previously called for the implementation of an action plan to redirect such vehicles to depots in Dadri, Rewari, Ballabhgarh, or Khatuawas. In April 2019, the Supreme Court, while issuing a notice, directed that no coercive action be taken against depot operators and vehicle owners.

In its verdict, the Court expressed disagreement with the proposal put forth by the National Green Tribunal (NGT) suggesting the diversion of trucks destined for an Inland Container Depot (ICD) at Delhi’s Tughlakabad to ICDs located outside the National Capital Region (NCR).

Highlighting that the right to clean air is a universal entitlement and not exclusive to residents of Delhi, the bench stated:

“The NGT, among other observations, suggested the possibility of limiting the entry of diesel vehicles at the Tughlakabad ICD by rerouting them to ICDs at Dadri, Rewari, Ballabhgarh, Khatuawas, or any other ICD around Delhi to mitigate pollution in Delhi NCR. This suggestion seems to imply that only individuals residing in Delhi NCR have a claim to a pollution-free environment, neglecting the fact that citizens in other regions of the country also possess a fundamental right to an environment free from pollution, as safeguarded by Article 21 of the Constitution of India. Such a fundamental right is universally applicable and extends to all citizens, not confined solely to those residing in Delhi NCR.”

The Supreme Court further issued the following directives in the case:

Incorporating the Union Road Transport and Highways Ministry as a relevant party for requisite adherence, the Court emphasized the need to investigate alternative, less polluting options for heavy-duty vehicles. It also instructed the expeditious execution of recommendations provided by the consultancy firm KPMG concerning the parking of vehicles at container depots in the National Capital Region (NCR) within a period of six months.

Moreover, the Court mandated the development of a comprehensive plan for the efficient utilization of Inland Container Depots (ICDs) in the vicinity of Delhi, with a similar deadline of six months for its formulation and implementation.

The case remains active, and the Court will monitor the execution of its directives, scheduling the next hearing for July 31, 2024. The Union Road Transport and Highways Ministry have been specifically instructed to submit a compliance report by this date.

The directives issued by the Court are as follows:

  1. After reviewing recommendation 3.1 from the Environment Pollution (Prevention and Control) Authority (EPCA), the Union of India is directed to formulate a policy for the gradual phase-out of heavy-duty diesel vehicles, replacing them with Bharat Stage VI (BS-VI) vehicles. This policy should be developed within six months from the current date.
  2. Despite the Union of India being represented through the Ministry of Environment, Forest and Climate Change, the Ministry of Road Transport and Highways has not been formally included as a party. Consequently, the Court instructs the Registry to forward a copy of this order to the Secretary of the Ministry of Road Transport and Highways.
  3. The ongoing exploration of alternative, cleaner sources, including CNG/Hybrid/Electric, for heavy-duty vehicles is to continue.
  4. The appellant is directed to formulate a plan for the optimal utilization of Inland Container Depots (ICDs) around Delhi within six months, as per recommendation no. 3.2. Meanwhile, the appellant is tasked with coordinating with all relevant official agencies to facilitate the establishment of central laboratories near ICDs in the Delhi National Capital Region (NCR).
  5. The appellant is further directed to implement the recommendations put forth by consultancy firm KPMG in February 2021, aimed at improving the management of vehicle parking at the specified ICD. A grace period of six months is granted for the appellant to carry out the implementation of KPMG’s recommendations.

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