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Bihar Deputy CM says will move Supreme Court against High Court stay on quota hike.

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The Bihar government will petition the Supreme Court to challenge the Patna High Court’s decision to set aside a 50% to 65% increase in reservation for deprived castes, Deputy Chief Minister Samrat Choudhary said on Thursday, even as opposition leader Tejashwi Yadav chastised the ruling National Democratic Alliance (NDA) for failing to include the quota law in the Constitution’s ninth schedule, which would have given it immunity from judicial review. In a setback for the Nitish Kumar government, the high court on Thursday struck down legislations passed by the state assembly in November last year to increase the reservation for scheduled castes, scheduled tribes, and backward classes in education and government jobs to 65%, exceeding the 50% ceiling set by the top court.

“After getting legal advice, the Bihar government plans to challenge the high court ruling before the Supreme Court. Backward communities, Dalits, and tribals must be given more reservation in Bihar,” Choudhary, who is also the state Bharatiya Janata Party (BJP) head, added. “We believe that the reservation laws in Bihar were amended in accordance with provisions of the Constitution states like Tamil Nadu, too, have 69% quotas.”

Madan Sahni, leader of the Janata Dal (United) and a state minister, has also stated that the administration will take appropriate measures. “Bihar was the first state to undertake a caste-based survey and boost quota based on its findings. We shall consider the top court’s verdict issued today.

In response to the high court’s decision, opposition leader Tejashwi Yadav accused the BJP-led NDA government at the Centre of obstructing the conduct of a caste survey and an increase in quota. “We are saddened, and we suspected that the BJP would try to halt the reservation. We had stated during the elections that the BJP is opposed to reservation… “I don’t understand why the Chief Minister is silent on this,” the RJD leader stated.

Shri Yadav stated that his party, which was part of the administration that implemented the higher quota, pushed on the inclusion of the updated reservation legislation in the Constitution’s ninth schedule. “The state and federal governments, however, did nothing. We demand that an all-party team meet with Prime Minister Narendra Modi to discuss the quota increase in the ninth schedule,” he said, adding that if the state government does not challenge the high court judgement, his party will. Kunal, the state secretary of CPI-ML (liberation), expressed unhappiness with the high court judgement and suggested that the state government approach the Supreme Court to “protect the interests of the backward and oppressed classes.”

WRITTEN BY: ABHISHEK SINGH

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Patna High Court Upholds Special Court’s Decision: No Jurisdiction to Release Seized Vehicles under Bihar Prohibition and Excise Act

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Patna High Court Upholds Special Court’s Decision: No Jurisdiction to Release Seized Vehicles under Bihar Prohibition and Excise Act

Case title: Kalam Ansari VS The State of Bihar

Case no.: CRIMINAL MISCELLANEOUS No.11188 of 2024

Dated on: 22nd May 2024

Quorum:  Hon’ble. MR JUSTICE JITENDRA KUMAR

FACTS OF THE CASE

The present petition has been filed under Section 482 Cr.P.C for quashing and setting aside the order dated 28.11.2023 passed by Ld. Special Judge (Excise), Court No.-II, Muzaffarpur in Excise P.S. Case No. 1777 of 2023 dated 11.09.2023 registered for the offences punishable under Sections 30(a), 32(2) and 48 of Bihar Prohibition and Excise Act, whereby Ld. Special Court has rejected the application filed on behalf of the Petitioner to release the seized Truck bearing Registration No. JH-10CR-7110, Chassis No. MC2ERHRC0PDB05988, Engine No. E446CDP063534 in favour of the Petitioner holding that the jurisdiction of the Special Court is barred under Section 60 of the Bihar Prohibition and Excise Act to release the vehicle seized under the Act. As per the materials on record, the vehicle in question was seized by the Police with 2847liter liquor and subsequently, Excise P.S. Case No. 1777 of 2023 dated 11.09.2023 was lodged against the owner, who is the Petitioner herein, and other two Accused persons for offence punishable under Sections 30(a), 32(2) and 48 of Bihar Prohibition and Excise (Amendment) Act.

ISSUES

  1. Whether the Special Court has the jurisdiction to order the release of the vehicle seized under the Bihar Prohibition and Excise Act, 2016.
  2. Whether the vehicle seized under the Bihar Prohibition and Excise Act, 2016 can be released by any court or if there are specific provisions under the Act and the Rules that provide a mechanism for the release of such vehicles.
  3. Whether the rejection of the petitioner’s application by the Special Court was in compliance with the statutory provisions under the Bihar Prohibition and Excise Act, 2016, and the Bihar Prohibition and Excise Rules, 2021.
  4. Whether the petitioner has any alternate remedies available under the Bihar Prohibition and Excise Act, 2016, and the Bihar Prohibition and Excise Rules, 2021, particularly concerning Rule 12A and Section 57B.
  5. Whether the petitioner can invoke the writ jurisdiction of the High Court under Article 226 of the Constitution of India in light of the bar on jurisdiction of the Special Court under Section 60 of the Bihar Prohibition and Excise Act, 2016.
  6. Whether there is any illegality, impropriety, or miscarriage of justice in the impugned order passed by the Special Judge (Excise) in rejecting the petitioner’s application for the release of the seized vehicle.

LEGAL PROVISIONS

Section 482 of the Code of Criminal Procedure (Cr.P.C.): This section grants inherent powers to the High Court to make such orders as may be necessary to prevent abuse of the process of any court or otherwise to secure the ends of justice.

The Bihar Prohibition and Excise Act, 2016:

Section 30(a): Deals with the penalties for manufacturing, transporting, possessing, or selling intoxicants without a license.

Section 32(2): Pertains to penalties related to the illegal possession of intoxicants.

Section 48: Addresses the offenses related to the abetment of the violations mentioned in the Act.

Section 56 of the Bihar Prohibition and Excise Act, 2016: This section deals with the confiscation of vehicles, vessels, or any other conveyances used for transporting intoxicants illegally.

Section 57B of the Bihar Prohibition and Excise Act, 2016 (inserted in 2022): Allows for the release of a vehicle seized under the Act by the Collector upon payment of a penalty as notified by the State Government.

Section 60 of the Bihar Prohibition and Excise Act, 2016: Explicitly bars any court from having jurisdiction to pass orders for the release of vehicles seized under this Act, indicating that only specified authorities (such as the Collector) can handle such matters.

Rule 12A of the Bihar Prohibition and Excise Rules, 2021 (as amended in 2022): Provides a mechanism for the release of seized vehicles upon payment of a stipulated penalty, detailing the procedural aspects to be followed for such release.

CONTENTIONS OF THE APPELLANT

Learned Counsel for the Petitioner submits that the petitioner possesses all valid documents relating to the vehicle showing that he is owner of the vehicle. He further submits that he has also valid documents regarding the liquor which was loaded in the Truck. He also claims that Ld. Special Court has jurisdiction to release the vehicle under the Bihar Prohibition and Excise Act.

 CONTENTIONS OF THE RESPONDENTS

Learned. APP for the State defends the impugned order submitting that under Section 60 of the Bihar Prohibition and Excise Act, 2016, jurisdiction of the Special Court is barred in regard to release of any vehicles seized under the Bihar Prohibition and Excise Act and hence, there is no illegality or impropriety in the impugned order. He further submits that the seized vehicle in question is liable to be confiscated under Section 56 of the Bihar Prohibition and Excise Act, 2016. However, under Rule 12A of the Bihar Prohibition and Excise Rules, 2021, as stands after amendment in 2022, read with Section 57B of the Act, 2016, the Petitioner is at liberty to get the vehicle released after payment of penalty as stipulated in the Rules.

 COURT’S ANALYSIS AND JUDGEMENT

After perusal of the aforesaid statutory provisions, it clearly transpires that jurisdiction of any Court is barred to pass any order in regard to seized vehicle or other items as mentioned in the Section 60 of the Act. It also clearly transpires that the seized material under the Act is liable to be confiscated as per the provisions of the Act and the Rules made thereunder. However, as per the Rule 12A of the Bihar Prohibition and Excise Rules, 2021, the Petitioner has liberty to move an application for releasing the vehicle on payment of penalty as decided by Excise Officials under the Rules. It is also pertinent to note that despite provisions for bar of jurisdiction of any Court in any statute, writ jurisdiction of High Court is not ousted. Here, it would be relevant to refer to Suresh Sah Vs. State of Bihar & Ors., 2020(1) BLJ 706, wherein Division Bench of this Court had occasion to consider the jurisdiction of Special Excise Court and High Court in view of Section 60 of Bihar Prohibition and Excise Act, 2016. Section 57B as inserted in 2022, by way of amendment, provides that any vehicle used for committing any offence punishable under the Prohibition and Excise Act and having been seized by any police officer or Excise Officer may be released by the Collector upon payment of such penalty as may be notified by the State Government. Here, it was clearly held that in the light of Section 60 of said Act, jurisdiction of Special Excise Court is barred, but such bar does not operate in the exercise of jurisdiction under Article 226 of the Constitution of India. The relevant paragraph of the Suresh Sah case (supra) reads as In Sunaina @ Suneina Vs. State of Bihar & Ors., (2024 SCC online Pat 851, AIR ONLINE 2024 PAT 73, 2024 (3) BLJ 163), Division Bench of this Court exercising writ jurisdiction, has further held that if the requisites for seizure or confiscation of vehicle are not fulfilled, the seizure or confiscation of any vehicle under the Excise Act, 2016 would be arbitrary and violative of Article 300A of the Constitution and the owner of the vehicle would be entitled not only to the release of the vehicle but even compensation on account of such seizure or confiscation. In view of the aforesaid facts and circumstances, it clearly emerges that Special Excise Court has no jurisdiction to pass any order in regard to the vehicle seized under the provisions of Bihar Prohibition and Excise Act, 2016. Hence, Ld. Special Excise Court has rightly rejected the application of the Petitioner. There is no illegality or impropriety in the impugned order, nor is any miscarriage of justice. Accordingly, the present petition is dismissed in limine upholding the impugned order. However, the Petitioner, if so advised, is at liberty to invoke writ jurisdiction of this Court, if he is of the view that his vehicle was not liable to be seized under the Excise Act. But if the Petitioner believes that he has violated the statutory provisions of the Bihar Prohibition and Excise Act, 2016 rendering his vehicle liable to be seized/confiscated, he may move appropriate application before the Executive Officials for releasing the vehicle on payment of penalty under the Act and the Rules made thereunder. Hence petition stands dismissed.

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Judgement Reviewed by – HARIRAGHAVA JP

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Husband cannot be allowed to shirk his responsibility of paying maintenance to his wife,minor child & parents by availing loans and paying EMIs-High Court Of Patna

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Title-Jyoti Raj Vs The State of Bihar

Decided on-22/12/2023

+CR.REV 22/2019

CORAM-HON’BLE JUSTICE RAJEEV RANJAN PRASAD

FACT

As per the facts of the case petitioner was married to opposite party no.2 on 29/11/2012 and after sometime the behaviour of the husband changed and he started committing atrocities upon petitioner. As her husband was not taking care during pregnancy period she went to her parents house and after the birth of the male child on 09/11/2013 the parents of the petitioner took her to Mumbai to live with her husband were her husband again started to assault her therefore ultimately she was compelled to leave the residence of her husband at Mumbai and in 04/06/2015 she returned to her parents house along with her male child.As the husband of the petitioner has a salary of Rs 70000 from his employment in a public sector and have income from house rent and other properties where total monthly income of Rs 150000.In the above background the petitioner filed an application under section 125 of the CRPC in the learned Family court for maintenance and the opposite party oppose the application seeking maintenance.Where the learned family court framed an issues as whether the petitioner is unable to maintain herself and opposite party who is having sufficient means us neglecting his wife.On perusal of the impunged Judgement it appears both parties have examined witnesses in support of their respective case.The marriage between the parties and birth of the son from the said wedlock are the admitted facts.on point of income the opposite party no.2 produced salary slip which shows that opposite party no.2 getting gross salary of 63,949 out of which sum of Rs 31,346 per month was being deducted against his loan and got only 32,603 as salary in his hand upon consideration of the pleadings and the evidence brought in record the learned court held that the respondent between the parties is admitted and there is an allegations that the petitioner had been ousted from the residential house of the husband without any justifiable cause and behaviour.It has also been taken note of that she is unable to maintain herself and is entitled to get maintenance.The learned Family Court took into account the salary income of the opposite party no 2 in between 60000 and 70000 Were been noticed that opposite party no.2 was Rs 10000 to the petitioner by order of this court in miscellaneous case.The Family Court has granted Rs 10000 per month maintenance i.e Re 5000 to the petitioner and Rs 5000 to her minor son.

Law Involved/Legal Provisions

The revision application has been preferred fir setting aside the order passed by the learned Pricipal Judge,Family Court Vaishali.By the impunged order the learned family court has been pleased to grant maintenance of a sum of Rs 10000 of Rs 10000 in total being Rs 5000 per month for maintenance of the petitioner and Rs 5000 per month for maintenance and education of her minor son.

Issue framed

Whether the order passed by the learned family court is maintainable?

The Court Analysis And Decision

As per the Hon’ble court after hearing both the parties observed and state that this court find that the relationship between the parties is admitted.The opposite party no.2 has not challenged the impugned judgement on any ground.As per the Hon’ble court a husband cannot be allowed to shrik his responsibility of paying maintenance to his wife,minor child,and parents by availing loans and paying EMIs thereon,which would lead to a reduction of his carry home salary.This court has been informed that during the intervention period the Opposite party no.2 has been promoted and he is now Deputy Executive Engineer and his gross salary has been Rs 1,14,564 but in order to deprive his wife from getting an adequate amount of maintenance he has taken further loan and now total sum is Rs 80,405 is being deducted his salary Were opposite party no.2 Paying Rs 43,600 as EMI on account of MSEB Emp CCsoc Mumbai.This court finds from the impugned judgement and the materials on the record that the learned Family court did not have the benefit of the judgement of the Hon’ble apex court.As this court is of the considered opinion that for the reasons stated hereinabove the impugned judgement insofar as it fixes maintenance amount of Rs 10000 only cannot be sustain the test of law.Thus thus court sets aside the impugned order as regards quantum of maintenance and remand this matter to the learned Family Court to take a fresh view of the matter on the quantum.The Learned Principal Judge Family court shall fix the quantam of maintenance afresh upon consideration of the material available on the record after giving an opportunity to both the parties to file their respective affidavits.The entire exercise shall be carried out and Judgement fixing maintenance would be delivered by the learned Principal Judge family court within a period of four months from the date of receipt/production of a copy of this order.In meantime by virtue of the order of the Hon’ble court in the Miscellaneous case the opposite party no2 shall keep paying Rs 10000 per month to the petitioner.This application is allowed.

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High Court of Patna Set Aside The order Passed by the learned trial court under section 304-B of IPC as proper evidence to proof the offence

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TITLE-Rajan Sah Vs The State of Bihar

Decided on-21/12/2023

+CR.APP(DB)No.1439/2023

CORAM-HON’BLE JUSTICE ASHUTOSH KUMAR AND HON’BLE JUSTICE NANI TAGIA

FACT

As per the fact the appellant without there being any evidence of any demand of dowry and cruelty has been convicted for the offences under section 304-B of the IPC.As the FIR has been lodged by the father the deceased As Appellant married to the deceased in the year 2007 and have one child.However alleged in FIR later the Appellant started demanding money as part of dowry,the non fulfillment of which demand led to mental and physical torture of the deceased.The deceased had informed on telephone that she was being subjected to cruel treatment. Were she left all decisions on her father were he family members of the Appellant who assured that they will ensure that the appellant men’s his ways and practically there was no change and cruelty was continued.on one of the date she was thrown out of the house and was not even allowed to enter the house of her sister in law.Because of such cruel treatment the deceased set herself on fire and while treated for burn injuries and died in hospital on 06/01/2011 at 4:00 PM. It has further disclosed in the FIR that first taken to sadar Hospital and later bought deceased in an injured condition to katihar Medical College and Hospital where while her treatment she died.For which case was registered for investigation for the offence under section 304-B of the IPC.Where in trial court Appellant was punishable under the aforesaid section.

Law Involved/Legal Provisions

The appellant has been convicted for the offence punishable under section 304-B of the IPC passed by the learned Addl.District and Sessions Judge for which he has been sentenced to undergo imprisonment for life and to pay fine.

ISSUE RAISED

Whether the order passed by the trial court convicted under section 304-B is valid?

THE COURT ANALYSIS AND DECISION 

As per the Hon’ble court after hearing both the parties observed and state that the aforenoted statement of deceased is not on record.Neither the person who recorder FIR Not the investigator of this case have been examined.On question put to him by the court he has specifically answered that when he had gone to the hospital he had a talk with his daughter and the case which he had filed was on the basis of what his daughter had told him.After witnessing the father of the deceased make the Prosecution case highly suspicious.The opinion of the trial court that no pre judice has been caused because of non examination of the IO appears totally faulty.In it’s entirety the evidence adduced before the trial court do not prove the case against the appellant beyond all reasonable doubts.In fact the reason for the deceased having caught fire whether self propelled or at the instance of others remain unknown.The non-examination of the IO leaves the appellant highly prejudiced.The Court do not find any justification to ratify the Judgement of the trial court.The Court set aside the judgement of conviction and order of sentence referred to above and acquit the appellant of the charge levelled against him.The Appeal stands allowed.

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The High Court of Patna set aside the judgement and decree of the appellate court as it appears that the appellate court has failed to exercise it’s power and jurisdiction

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TITLE- Shree Kishun Rai & ors Vs Ram Dulari Devi & ors 

DECIDED on-22/12/2023

SA+402/2000

CORAM-HON’BLE JUSTICE KHATIM REZA 

FACT

As per the facts of the case one Lalit Bhagat Had five sons who was father of the Husband of the Original plaintiff who had acquired some lands from his own income.During the lifetime of Lalit Bhagat Rai,Deorah Rai died in the year 1958,leaving behind his widow namely Pan Kuer(plaintiff) and a sib Jugal Rai (defendant no.1).All the son got ⅕th share and had started residing separately.The Plaintiff is the widow if Deorah Rai and mother of Defendant no.1 ,2 and 3 are the alleged vendees of Defendant no.1.As further case of the plaintiffs is that Deorah Rai husband if the original plaintiff was in police service and died in the year 1959,leaving behind plaintiff and his minor son,Viz., Jugal Rai (defendant no.1) and after the death of husband the plaintiff became the Karta of her family and looked after her son and carried business in the name of her husband and constructed a pucca house.As Defendant no.1 joind army service in the year 1965, but never sent a single farthing to the plaintiff,during the course of the service.Further plaintiff state that she got marriage of his son solemnized with one lailawati Devi but her son become addict to ganja,bhang and wine etc and became a man of bad character and was not taking care of the plaintiff and was issuesless and due to his bad habits,his wife Lilawati deserted him and solemnized another marriage.While she was working in her field she was objected by Defendant no.2 and 3 because her son Jugal Rai had executed a sale deed in 30/12/1974 regarding a suit land in favour of the defendant no.2 and 3.Havind Knowledgeable about the same plaintiff inquired the matter from her son Jugal Rai who denied the same and on inquiry from Registry office she became aware that a sale deed was executed which was forged and fabricated one in the manner described in the plaint.The Defendants never came in possession over the suit land nor any title accured to them in the basis of the said sale deed.Lastly the plaintiff requested to the defendants on 28/02/1984 to which they did not agree hence the necessity of the suit. Where the plaintiff has prayed for setting aside the sale deed dated 30/12/1974 executed by Defendant no.1 in favour of Defendant no 2 and 3 and for confirmation/recovery of possession over the land in suit.On Summons, Defendant no.2 and Defendant no.3 have appeared and filed joint written statement.Apart from technical objection the factum of partition amongs the sons of Lalit Bhagat Rai and the plaintiff is the wife of Deoraj Raj have been admitted by these Defendants.These defendants have denied the facts.However it is pertinent to mention that despite the summons jugal Rau has not appeared in the suit nor filed any written statement.On analysing the evidence and materials on record the learned trial court plaintiff has got no valid cause of action of the suit.Therefore the plaintiff is not entitled to any relief in the suit.

Law Involved/Legal Provisions

As this is the second Appeal filed by the plaintiffs against the Judgement and Decree on 25/07/2000 passed by the learned 1st Additional District Judge,Saran in Title Appeal no.43/1988whereby learned lower appellate court has reversed the Judgement and decree dated 28/02/1988 title suit.

Issue framed

Whether the order passed by the learned trial court is valid ?

The Court analysis and decision

As Per the Hon’ble court after hearing both the parties observed and state that the appellant court has failed to exercise it’s power and jurisdiction.The Trail Court has rightly held that the plaintiff is not entitled to recovery of possession. So far findings with regard to the case of adverse possession is concerned, the appellate court by making out a third case neither any claim of adverse possession by the plaintiff nor by the defendant assumed that when the sale deed is void and illegal,The vendees possession automatically become adverse to the plaintiff.This Finding is completely erroneous and on wrong interpretation of law.Further the suit is also barred by law of limitation and the finding given by the learned Trial Court attracting Article 59 of the Limitation Act, in the instant matter, whereby the period of limitation is three years is correct and the finding of the trail court us affirmed whereas the finding on this score by the Learned appellate Court invoking Article 65 of the Limitation Act is erroneous and perverse and therefore the judgement and decree of the appellate court us set aside.The second appeal had got merit and accordingly it is allowed.

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