Category Archives: #patna High court

 

TITLE-Nirmal Kumar Vs The State of Bihar

DECIDED on-22/12/2023

+CWJC No.15555/2022

CORAM-HON’BLE JUSTICE HARISH KUMAR 

FACT

As per the facts of the case petitioner was appointed in the year 1988 as constable and after rendering more than 33 year of service he got promotion in the year 2022 in the post of Havildar,Ara Police Line,Bhojpur.In course of his service has also passed Hindi Noting and Drafting Examination in the year 2010 but the benifit was denied to him and all on a sudden vide Bhojpur District dated 27/09/2021 his salary has been revised w.e.f 01/01/2006 and alleged excess amount of Rs 5,71,203/- has been recovered from the gratuity amount in a most arbitrary manner.Where the learned counsel for petitioner states that action of recovery being illegal and wholly without jurisdiction.Whereas on the other hand learned Councel for state submits that the department came to know that wrong fixation of pay has been made, necessary action has been taken in accordance with law and direction has been issued to recover the excess amount.whilr directing the issues an emphasis has been made that at the time of fixation undertaking was given by the petitioner that any amount found excess to his entitlement,the same shall be recovered.

Law Involved/ Legal Provisions

As the present writ petition filed under Article 226 of the Constitution of India seeking a direction upon the respondent authorities to ensure payment of all his retiral dues as well as benefit of ACP and on the basis thereof to enhance the pension and further sought a direction not to recover Rs 5,71,203 from the gratuity amount of the petitioner.

Issue Raised

Whether the order directing for recovery if excess amount of RS 5,71,203 from the gratuity amount of the petitioner is sustainable.

The Court analysis and observations

As per the Hon’ble court after hearing both the parties observed and state that as per the stand of the state the petitioner has been allowed higher pay with effect from 01/01/2006 and the similar error gas occurred subsequently at the time of revision of pay scale which is said to have been detected in course of varification at the time of fubal fixation if his retrail benifits admissible dues in the year 2001.It is not the case of the respondents that the petitioner was responsible or instrumental to the decision of the alleged enhanced pay fixation and in fact the same was done by the Department itself.As the officer furnished an undertaking while opting for teg revised pay scale is bound by the undertaking would not be applicable in the facts of the present case since respondents have not come out with any such undertaking furnished by the petitioner while opting for the revised pay scale.The fixation of pay was done some time in the year 2009 and 2013 itself and the petitioner had never been placed on notice that any payment found to have been made in excess would be recovered.Now any such kind of notice or undertaking on or after the retirement of the employee would not come to rescue of the employer to superannuation of the employee.The court is in agreement with the aforenoted proposition of law.However the case in hand is quite distinguishable and thus the reliance of the state is wholly misconceived,Gone through the material and taking note of the settled legal proposition,this court finds that the case of the petitioner falls within the situation where the recovery if excess payment from the retired employee after such a long time us held ti be impermissible in law.The present application stands allowed.The impugned order directing for recovery of excess amount of RS 5,71,203 from the gratuity amount of teg petitioner held to be not sustainable and the respondent us directed to restore the amount.Respondents are further directed to ensure payment Of differential amount after revision and also accord the benefit of ACP and MACP in accordance with law.

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Title-Ramji Singh & ors Vs The State of Bihar

Decided on-19/12/2023

+CWJC No.13459/2021

CORAM-HON’BLE JUSTICE PRABHAT KUMAR SINGH

FACT

As per the fact the land in question was acquired by the land Acquisition Department, Government of Bihar under the land Acquisition Project -1974 but till now have not taken physical possession of the acquired land nor any compensation has been paid in lieu of acquired land to the petitioner and it is settled law that if physical possession has not been taken or the compensation is not paid them the acquisition proceeding is deemed to have lapsed.It is further submitted that action of respondents in construction of canal under Tirhut Gandak Project is illegal and hence end of justice the respondent are required to be restrained from the construction of the canal over the land of petitioners.The petitioners have further state that even assuming lands were acquired and possession was taken by the state Government/Water Resources Departments,Bihar and it shall be assumed that the state has waived their all rights as they admitted the title and possession of the petitioner by conducting operation of consolidation Act on the said land by accepting rent,issuing rent receipt,establishing the relationship of landlord and tenants between the state Government and the petitioner.Accordingly if the respondents still desire to have the said land acquired fresh Acquisition proceedings as mandated under section 24 of the New Act,should be intimidated.

LAW INVOLVED/LEGAL PROVISIONS

As the present writ application has been filed by the petitioner for restraining the respondents from the construction work of canal over the land of petitioners in the light of Land Acquisition Project of 1974.

ISSUE RAISED 

Whether land acquired in the year 1974 and compensation duly paid but merely on the ground of petitioner are in possession of the land.

THE COURT ANALYSIS AND DECISION

As after hearing both the parties Hon’ble court observed and state that It is not in dispute that the land in question was acquired in the year 1974 and compensation was duly paid merely on the ground that petitioners are in possession of the land in question the construction of the canal which is of public and national importance,cannot be stopped by this Hon’ble court on frivolous grounds in the eye of law.As it is not proper on the part of the petitioners to challenge the acquisition proceeding or claim possession in the ground of adverse possession.Transfer of lands were taken from them in 1974 and after lapse of 50 years of acquisition, creating hurdles in an important project are not fit and proper Accordingly the writ application is dismissed.

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Title-Abhinandan Vs The State of Bihar

Decided on-20/12/2023

+CR.APP (DB)No.-554/2022

CORAM-HON’BLE JUSTICE SUNIL DUTTA MISHRA

FACT

As per the fact of the case The appellant is an accused as per the Prosecution case the informant age 17 years was a student if Intermediate and both of them have a love affair.Where on the pretext of marriage,The Appellant sexually exploited her.On 30/08/2019 Appellant called the informant and said her to flee away to marry in Temple.As Appellant sexually assaulted her were some villagers had seen them and tried to assault them on asking of the villager Appellant called his father and thereafter the appellant and his father forbade the informant from disclosing the occurrence to her guardian and assure her for solemnization of her marriage.Were the informant approach several times for marriage but the appellant refused to marry her then informant filed the written application before the police station.Where Investigation of the case carried out and after the investigation the police submitted charge sheet against the appellant under section 376 of the IPC and Section 4 of the POCSO Act.Then The case was committed to the court of sessions and charges framed under 376 of IPC and Section 4 of POCSO Act.After examine the witnesses from both the parties and the completion of oral and documentary evidence the statement of the accused was recorded under section 313 of the CRPC to which he denied the occurrence and claim to be innocent.At the conclusion of trial The Trial court convicted the accused/Appellant and sentenced him as aforesaid.Being aggrieved by the Judgement of conviction and order of sentence,the present appeal.

Law Involved/Legal Provisions

As the criminal appeal has been filed by the appellant against the judgement and sentenced passed by the learned Additional Sessions judge VI-Cum-Special were the appellant has been convicted under section 376 of the IPC and Section 4 of POCSO Act with fine.It has further been directed that the detention undergone by the appellant shall be set off against the sentence imposed and provision under section 42 of the POSCO Act,The Appellant is not liable to be punished or sentenced under Section 376 of IPC as he already been sentenced for the offence under section 4 of the POCSO Act.

Issue raised

Whether the order passed by the trial court is valid?

THE COURT ANALYSIS AND DECISION 

As per the Hon’ble court after hearing both the parties observed and state that as after witnessing Prosecution side in their cross examination on behalf of defence that no such occurrence took place and the case was filed for pressuring accused/Appellant for marriage with the informant.In cases concerning offences under POCSO Act the main argument made on behalf of the state is presumption that operates against the accused under section 29 of the POCSO Act.It connected with the learned APP for the state that the court has to presume that the accused had committed the offence for which he is charged under the POCSO Act.It is submitted that in the present case it was for the appellant to have proved to the contrary and burden was entirely upon him,which he failed to discharge and therefore conviction by the trail court not be disturbed.As it is necessary to examine the effect if presumption under section 29 of the POCSO Act.Under Section 29 of the POCSO Act,it cannot be said that presumption is absolute.It would come into operation only when the presumption is first able to establish facts that would form the foundation under section 29 of the POCSO Act to operate.In a case pertaining to the POCSO Act it needs no reiteration that it is imperative to establish the age of the victim and thereby her minority.Section 94 of Juvinile Justice 2015 provides determination of age of the child in conflict with law and child in need of care and protection.In the present case the Prosecution failed to bring the original or certified true copy of Matriculation Certificate of the victim in trial to prove the same and its contents.In the scheme of the said Rule 12(3) matriculation certificate of concerned child,is the highest rated option.The Prosecution has  failed to conduct necessary investigation and the learned trial court has been remiss in failing to take into consideration the provisions of Section 94 of the Juvenline Justice.The allegations of Sexual assault coupled with the proof of majority of the victim drags an accused to the regrious of POCSO Act,which mandates a reverse burden of proof.The aim of the court of facts is to come to a firm conclusion about the minority of the victim must necessarily be proved by cogent evidence needed in a criminal trial.The POCSO Act does not diminish it dilute the Indian Evidence Act.In the instant case the mobile of the victim was important link to show but the Prosecution failed to bring this evidence without any reason.It also appears that IO had not visited the place of occurrence where the alleged offence had not visited the place of occurrence where the alleged offence was committed by the appellant.He had not taken the statement of any independent witness available near the place of occurrence.As after witnessing and the medical evidence shows foundation facts as in the present to raise presumption under section 29 of the POCSO Act have not been established beyond reasonable doubt by the Prosecution.Under Such Backdrop it would be unsafe to hold that the prosecution has proved its case against the appellant under the provisions of POCSO Act and Section 376 of IPC.Thus Prosecution has failed to prove the charges levelled against the accused/Appellant beyond all reasonable doubt thereby entitled the accused/Appellant for acquittal.The appeal is allowed and the order passed by the trail court accordingly is set aside.

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Title-Ajay Kumar Vs The State of Bihar &ors.

Decided on-22/12/2023

+CWJC No.-1086/2021 

CORAM-HON’BLE JUSTICE HARISH KUMAR

FACTS

As per the facts of the case The petitioner being Successor-in-interest of the land donot late Mostt.Jaleshwari,who dedicated her own land measuring 3 kathas in favour of the deities-Sri Ram Chandra Jee& Sri Lakshman Jee& Sri Janki jee & Sri Hanuman jee through a deed of samarpan Nama is declared as shebait of the temple.All these deities are installed in an old temple,which is out and out a private & personal temple of the family of the donors ,neither the general public nor the board has got any concern with the management, worship and Bhog-Rag of the temple.As per the learned council for petitioner states that only the successor of her family could become the shebait of the deities hence neither the Board bir the Respondent no.6 had any claim over the property or right tu interfere in the peaceful management of the deities.He further submitted that respondent no.6 apart from stranger of the villagers is a fraud claiming himself to be a sanyasi and shebait of the temple but the fact is that he had no connection with the family of the said land donor.It is also states that father of the petitioner came to know about the impunged order challenged the same before the Board By filing a petition on 01/08/2013 but till now no orde has been passed and his father died in the meantime, waiting any response from the Board 

Law Involved/Legal Provisions

As the petitioner has filed the present writ petition under Article 226 of the Constitution of India seeking quashing of the letter dated issued by the respondent no 5 where the respondent no.6 has been appointed as Trustee of the temple without the procedure followed under the law.Tge petitioner further sought relief to hold and declare that neither the Bihar state Board of Religious Trust,Patna nor the Respondent no.6 has got any concern over the lands and properties of the deities as well as temple and also pray for restraining into the smooth functioning and management of the Rag-Bhog & other daily routine of the deities.

Issue raised

Whether the order passed by the president,Bihar State Board of Religious Trust is valid?

THE COURT ANALYSIS AND DECISION

As per the Hon’ble court after hearing both the parties and perused the material available on record observed and state that it is evident that for the purpose of Declaration of Religious Trust,not only express declaration rather it can be declared construction of temple.It is worth mentioning that donation and worship by the public cannot be treated as a public temple.It is also clear that before passing any order under 28(2)(u) has cautioned the Board to adhere to the principles of natural justice.It is manifested from the impunged order for appointment if trustee us passed without any enquiry or notice to the affected person.The challenge of the appointment of Respondent no.6 had also been made by the father of the petitioner but remained unanswered.The plea of delay and as such writ petition being barred by limitation is concerned well settled it is that any order which is wholly without jurisdiction,void and initio can be challenged at any point of time mere passage of time would not get it sanctified.It is needless to observe that no law of limitation applies in a writ jurisdiction and wherever and whenever the court exercising power if extraordinary jurisdiction under Article 226 of the Constitution can hold and declare any order unsustainable if found per se illegal without jurisdiction and in complete violation of the principles of natural justice.In aforesaid settled legal position the impunged order prima facie ut appears that the same has been passed on the application filed by Respondent no.6 after obtaining the recommendation without there being any enquiry or providing opportunity of hearing to the affected person.The plea is estoppel as raised in present writ petition on behalf of Bihar State Board of Religious Trusts does not inspire any force as there cannot be any estoppel against the law.In sofar the court find that the petitioner is able to make out good grounds to interfere in the impugned order and accordingly the impugned order to the writ petition under the signature of President,Bihar State Board of Religious Trust is hereby set aside and The Respondent Religious Trust Board shall carefully look into all the documentary evidence and also get local enquiry before passing the final order.The petitioner having come to know about the order of the Hon’ble court passed on being advised by hus lawyer filed L.P.A and the learned Division Bench having taken note of the dispute and pendency of the writ petition disposed of the LPA with a direction to the parties to agitate their cause in the present writ petition without making any observations on the merit of the case.

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Title- XX Vs The State Of Bihar

Decided on- 21/12/2023

+CR.APP(SJ)No.4143/2023

CORAM-HON’BLE JUSTICE CHANDRA SHEKAR JHA 

FACT

As per the facts of the case the appellant was about 16 years of age and name of the Accused-Appellant -CCL named in the FIR and is in observation home since 10/4/2023.As the allegation against the appellant is to commit rape/penetration sexual assault upon the informant who claims her age 17 years.Where the learned council on behalf of appellant that the false implications was made raised by the informant as the present implication is only with a view to create a pressure to solemnize the marriage and also state that the father of the Juvinile-appellant is ready to stand as surety and he will take care of the appellant and ensure that he would not fall in bad company and take possible care to connect him with the mainstream of the society.Whereas the learned council for App opposing the prayer for bail.

Law Involved/Legal Provisions

As the present appeal has been filed against the order passed by learned 1st Additional Sessions-Judge-cum-Special Judge in special case (Child) where the learned court has refused to enlarge the appellant on bail for the offences punishable under section 376,504/34 of IPC & Section 4 of the POCSO Act.

Issue raised

Whether the order passed by the trial court for punishable under section 376,504/34 of IPC and Section 4 of the POCso Act is valid? 

THE COURT ANALYSIS AND DECISION

As per the Hon’ble court after hearing both the parties states that the appellant has been Adjudged Juvenile aged about 16 year and 5 month and father is ready to stand as surety and undertaking that if Appellant is released on bail he will take care of the appellant and does not fall in bad company but if the appellant indulged in any unlawful act will inform it to the jurisdictional police station following the spirit of section 12 of the Juvinile justice.The Hon’ble court state that classification the offences under the bailable and non-bailable sections would not be relevant for the purpose of grant of bail to a Juvenile and the prayer for a bail may be rejected only under one of the three conditions.The court considered that the impunged order passed by the court below is not in consonance with the aims and objectives of the Act.Accordingly the order passed by the learned 1st Additional Sessions Judge-Cum-special Judge, case is hereby set aside and released on bail with two sureties.

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