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Delhi High Court Dismissed the petition filed for Quashing of FIR under IPC & POCSO act

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Title: MOHD. AMAAN MALIK vs THE STATE GOVT NCT OF DELHI & ANR.

Reserved on:29.05.2023

Pronounced on:05.07.2023

+ CRL.M.C. 7121/2022 & CRL.M.A. 8829/2023

CORAM: HON’BLE MS. JUSTICE SWARANA KANTA SHARMA

Introduction

The Delhi High Court Dismissed a petition for the quashing of FIR No. 162/2021, has been filed on behalf of the petitioner under Section 482 of the Code of Criminal Procedure, 1973 (the “Cr.P.C.”) for acts punishable by Sections 363/366A/376/505 of the Indian Penal Code, 1860 (the “IPC”) and Section 6 of the Protection of Children from Sexual acts Act, 2012 (the “POCSO Act”).

Facts of the case

The present FIR was filed on 29.05.21 based out-off the statement of victim. Victim and her mother had shifted to wazirabad from daryaganj two months prior to the incident. She met the accused Mohd. Amaan Malik, a native of Daryaganj in Delhi, who was around 20 years old, while she was attending classes there while she lived there. They had become pals at the tutoring centre and had begun using mobile phones to communicate. The defendant had phoned her at Sabzi Mandi and driven her in his automobile to a guest home in Sarai Kale Khan. After that, he had provided her drink and engaged in sexual activity with her without her permission. The victim also claimed that the accused had started using her as leverage by threatening to post her inappropriate photos on social media. As a result, the victim claimed that the accused had repeatedly taken her to Sarai Kale Khan’s guest house where he had forcibly engaged in sexual activity with her.

She discovered she was pregnant on April 7, 2021, and told her mother about it. Her mother then phoned the accused and informed them of the pregnancy. Amaan, the suspect, then went to the victim’s home and threatened both the girl and her mother. At Turkman Gate on April 9, 2021, he married the victim by intimidating her mother. He then took the victim and her mother to sign the marriage licence. He then began sharing a rental home with the victim in Wazirabad, close to her mother’s home.

Accused threatened the woman, beat and molested her, and put pressure on her to get an abortion. She had requested that the accused take her to her marital house, and he had responded that he had merely conducted the marriage to get rid of her. The victim underwent a medical examination at LHMC Hospital as part of the inquiry, and a positive pregnancy test result was obtained. She had verified her statement, which was recorded under Section 164 of the Criminal Procedure Code. Her pregnancy was ended at LHMC Hospital and the foetus was saved after additional research. The suspect was detained on May 29, 2021. Blood samples from the victim, the victim’s foetus, and the accused were collected, and sent for DNA examination. The accused/petitioner was identified as the foetus’ biological father by DNA testing. It was discovered over the course of the inquiry that the victim was married. Her date of birth, which was discovered in her school records to be 12.05.2004, meant that she was 17 years old when she legally wed the accused.

Analysis of the court

Before arriving at the conclusion, the Delhi High court referred to the principles laid down in State of Haryana and Ors. v. Ch. Bhajan Lal and Ors.1992 SCC (Cri) 426 by the apex court, which is to be considered while quashing a FIRs and it also analysed the verdict of the apex court in the case of Neeharika Infrastructure v. State of Maharashtra 2021 SCC OnLine 315, and culled out the relevant principles that govern the law on quashing of FIRs under Section 482 of the Cr.P.C.

Based on the facts of the case the high court was of the opinion that on prima facie terms this was a case of sexual assault which had taken place in 2021 and due to societal stigma and pressure the victim was forced to marry the accused which got established from the date mentioned in Nikahnama, It was undisputed that the victim was a minor throughout this entire time. The Nikahnama dated 09.04.2021 further demonstrates that, considerably later than the alleged sexual assault of the victim, the victim was still a juvenile and had not yet reached the age of majority.

The Court also mentioned the controversy around the age of marriage in muslim personal law and applicability of POCSO act, it cited several judgements from various high courts as, In Aleem Pasha v. State of Karnataka 2022 SCC OnLine Kar 1588, the Hon. Karnataka High Court noted that Muslim personal law will be superseded by the POCSO Act, a unique piece of legislation designed to protect minors from sexual assaults. Earlier, in Rahul v. State of Karnataka 2021 SCC OnLine Kar 12728, the Hon’ble Karnataka High Court made a similar observation. The Hon’ble Kerala High Court recently ruled in Khaledur Rahman v. State of Kerala & Anr. 2022 SCC OnLine Ker 5833 that marriages between Muslims under personal law are not excluded from the POCSO Act’s purview and that if one of the parties to the marriage is a minor, offences under the Act still apply regardless of whether the marriage is valid or not. The Court, while referring to Section 42-A of the POCSO Act observed that the POCSO Act will prevail over personal laws and customary laws.

While on the other hand the delhi high court also took of  the Hon’ble Punjab and Haryana High Court held in the case of Gulam Deen v. State of Punjab 2022 SCC OnLine P&H 1485 that a Muslim girl beyond the age of 15 is competent to engage into marriage and that Muslim personal law governs a Muslim girl’s marriage. The National Commission for the Protection of Child Rights (NCPCR) filed Special Leave Petition (Criminal) No. 26834/2022 in opposition to the aforementioned ruling, and the Hon’ble Apex Court decided to consider the issue of whether a young Muslim girl can marry after reaching puberty. The Hon. Punjab and Haryana High Court in Javed v. State of Haryana, CRWP-7426-2022(O&M), it was determined that Muslim women who were 15 years old or older might wed someone of any race. In accordance with Section 12 of the 2006 Prohibition of Child Marriage Act, such a marriage would not be invalid due to the girl’s free will and agreement. However, the Hon’ble Apex Court ruled on 13.01.2023 in Special Leave Petition (Criminal) No. 35376/2022 submitted by NCPCR that the ruling in the matter of Javed (above) should not be used as precedent in any subsequent cases. In a nutshell, as of now, the question of whether a female who reaches puberty and the age of majority after turning 15 is still considered a minor would be governed by the provisions of the POCSO Act/Child Marriage Restraint Act or not, is pending for consideration and adjudication before the hon’ble Apex Court. As a result, there are inconsistent rulings over whether the POCSO Act and the Child Marriage Restraint Act, or the personal law, will apply to a juvenile who is married under Muslim law. In any event, the claims of rape in this case are made before the couples’ marriage rather than after it, thus the court will not discuss the legitimacy of the marriage between the present petitioner and the victim.

In any case, in the current case, the minor victim expressly denies that any sexual relationships were established with her consent and describes the specifics of her initial sexual assault and subsequent sexual assaults under the threat of having her inappropriate photos made public. In these circumstances, the present case is not covered by the cases of Bhajan Lal (previous) or Neeharika Infrastructure (previous), and this Court cannot conclude from the merits of the case that the allegations against the petitioner are baseless or improbable or that the alleged offence could not have occurred.

However, this circumstance is frightening and serves as a harsh warning reminder. Occasionally, after a sexual attack, a troubling trend develops in which the accused marries the victim, In an apparent attempt to avoid being charged with a crime, they immediately desert the victim if the FIR is dismissed or bail is obtained.

This Court is not disposed to utilise its inherent authority under Section 482 Cr.P.C. for the purpose of quashing the disputed FIR in light of the overall facts and circumstances of the case. However, given that the charge arguments have not yet been heard, the issues brought before this Court can be raised before the competent Trial Court, where they will be resolved in accordance with the law. As a result, both the current petition and the awaiting application are dismissed.

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Delhi High Court granted compensation and set aside the order of the railway tribunal.

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Title: RAM PRATAP & ANR vs UNION OF INDIA (MINISTRY OF RAILWAY)

Reserved on: 15.03.2023

Pronounced on: 05.07.2023

FAO 172/2014

CORAM: HON’BLE MR. JUSTICE MANOJ KUMAR OHRI

Introduction

Delhi High court set aside the order passed by the Railway Claims Tribunal, Principal Bench, Delhi in OA(IIu)008/2013 and granted compensation to the appellants under section 23 of the railway claims tribunal act 1987.

Facts of the case

The appellants seek to challenge the decision made by the Railway Claims Tribunal, Principal Bench, Delhi in OA(IIu)008/2013, which dismissed the claim application they submitted. This appeal was filed in accordance with Section 23 of the Railway Claims Tribunal Act, 1987 (hereinafter referred to as the “Act”).

The appellants’ knowledgeable counsel argued that the Tribunal had rejected the appellants’ claim even though the two travel tickets (for the forward and return voyage) had been found on the deceased individual.

In contrast, the respondent’s learned CGSC argued that the Tribunal correctly rejected the assertions that the deceased was a bona fide passenger and that the event an untoward incident occurred while defending the disputed order.

Analysis of the court

A review of the file would also demonstrate that the tickets were confirmed and discovered to have been issued on June 5, 2012, at 12:18. Even though the trip was started on that day with considerable delay, The appellants claimed in their testimony that after buying the tickets, the deceased went home for some personal matters before returning to travel later that evening. In the deceased should not be denied the status of having been a genuine passenger just because there was a small window of time between the time the tickets were issued and the journey was actually taken, according to this Court’s FAO 172/2014 Page 3 of 4 opinion. In addition, the Tribunal’s assertion that the claim averments are implausible since neither the deceased’s fellow passengers nor the authorities were informed of the occurrence is false and should be rejected given the circumstances of the case.

In light of the foregoing reasoning, this Court believes that the Tribunal erred in denying the appellants’ claim application. As a result, the appeal is granted and the contested ruling is reversed.

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petition

Delhi High Court dismissed the petition challenging the orders passed by the tribunal.

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Title: DELHI TRANSPORT CORPORATION vs SUBHASH CHAND

Date of decision: July 5, 2023

+ W.P.(C) 8880/2023, CM APPLs. 33544/2023 & 33545/2023

CORAM: HON’BLE MR. JUSTICE V. KAMESWAR RAO

     HON’BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA

Introduction

Delhi High Court dismissed the petition challenging the orders passed by the tribunal upholding the decision of the Disciplinary Authority dated 16.12.14, who had imposed the punishment of stoppage of one increment with cumulative effect.

Facts of the case

The Disciplinary Authority issued an order on December 16, 2014, which the Respondent challenged before the Tribunal. The Disciplinary Authority had imposed a punishment of stoppage of one increment with cumulative effect. In response to the appeal, the Appellate Authority amended the penalty decision by declaring that it will be reduced by one increment without having any cumulative impact in an order dated March 12, 2015. It appears that the respondent sought an additional remedy before the higher authority, which issued a decision on July 3, 2015 denying the proposed remedy.

It should be noted that a chargesheet dated July 26, 2012, was used to launch a departmental investigation against the respondent. It is a given that the Inquiry Officer concluded that the accusations brought against the respondent had not been established in his final judgement. The defendant received a notification from the Disciplinary Authority dated August 14, 2014 asking him to justify why he should not receive the penalty of stoppage of two increments with cumulative effect. The investigation report was then sent to the respondent by correspondence dated February 26, 2014. On August 14, 2014, the responder responded to the same.

Analysis and Decision of the court

The court held that – The respondent must be placed in the same position or stage as if no penalty had been meted out to them after the tribunal overturned the orders of the Disciplinary Authority, Appellate Authority, and the Higher Authority.

In response to a particular question about whether the Disciplinary Authority had sent the respondent any disagreement notes prior to administering the punishment, the learned counsel for the petitioner responded in the negative. If that is the case, we concur with the Tribunal’s judgement in the contested order. We see no justification for interfering with the same. Thus the petition is dismissed.

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Delhi High Court dismissed the appeal filed against the judgement passed by the single judge bench upholding the candidature of respondents

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Title: MR KISHOR BANDEKAR AND ORS vs MR MAHESH CANDOLKAR AND ORS

Reserved on: 03rd July, 2023

Pronounced on: 06th July, 2023

+ LPA 504/2023 & CAV 312/2023, CM APPLs. 32400-32403/2023, 32711/2023

CORAM: HON’BLE THE CHIEF JUSTICE MR. SATISH CHANDRA SHARMA

HON’BLE MR. JUSTICE SANJEEV NARULA

Introduction

Delhi High Court dismissed the appeal filed against the judgement dated 02nd June, 2023 passed by the learned Single Judge in W.P.(C) 15097/2021, upholding the order dated 14th December, 2021 passed by Appellate Authority of All-India Chess Federation, New Delhi [“AICF”].

Facts of the Case

The Goa Chess Association [“GCA”] is a state-level sports organisation that is affiliated with both the AICF and the Sports Authority of Goa. It was established in accordance with the Societies Registration Act, 1860. The GCA’s Memorandum of Association (hence, “MoA”) and Rules and Regulations, all of which have been endorsed by the association’s General Body, serve as the framework for its governance.

A crucial adjustment to the GCA’s constitution was made by the General Body at its meeting on January 8th, 2017, raising the number of elected members of the Executive Committee from seven to twelve.

The GCA announced the elections for the Executive Committee on July 22, 2021. The list of accepted nomination forms was made public on August 5, 2021, and on August 10, 2021, the Presiding Officer (the “PO”) announced the names of the candidates elected to the North and South Goa Taluka Associations. The nomination forms of Respondents Nos. 1 through 4 were also ruled to be invalid, and a number of candidates from the talukas of Barder, Tiswadi, Ponda, and Salcete were found to have won their elections without opposition.

Respondents Nos. 1 to 4 contested the aforementioned PO disqualification of candidature before the AICF Ethics Commission in line with the AICF Code of Ethics. The Commission reversed PO’s decision through an order that was signed on October 19, 2021, and instructed that the voting procedure be completed within two weeks of the day that the order was received. The Appellants filed an appeal against this ruling with the AICF Appellate Authority, but it was denied on December 14 of that year, and the Ethics Commission’s judgement was upheld.

2.5. Invoking Article 226 of the Constitution of India, 1950, the appellants filed W.P.(C) 15097/2021 after being dissatisfied with the Appellate Authority’s ruling.

However, on June 2, 2023, the learned Single Judge dismissed the appeal and upheld Appellate Authority’s decision.

Analysis & Decision of the court

The Delhi high court held that The General Body meeting on January 8, 2017, when it was decided to expand the number of elected members of the GCA’s Executive Committee, is where the dispute’s origins may be found. This choice was made in order to permit additional committee members who might aid in the growth of chess in Goa and broaden the association’s operations. The MoA and GCA Rules and Regulations modifications were authorised by the resolution that came out of this meeting. Twelve elected members and one nominated member from each associated Taluka Chess Association will make up the Executive Committee of the GCA, according to the updated bye-laws and MoA.

 The challenged ruling exhibits a careful consideration of the provisions of the MoA and Rules and Regulations of GCA. The prerequisites for a candidate, the election process, the tenure of the Committee members, and the mechanism for filling any vacancies on the Executive Committee are all outlined in Rule 42(i)(a) (extracted above). Additionally, it describes the election process, including the criteria for nominations, the review of nominations, and the roles of the President, Secretary, and designated Presiding Officer. Contrary to what Mr. Nayyar has emphasised, this clause does not support his allegation. The aim to expand the number of delegates is mentioned in the minutes of the meeting, but it is not stated expressly that these representatives should be equally divided across all talukas. That would imply that it is possible for a taluka to have more than one representative on the Executive Committee.

This viewpoint is reinforced by the modified Clause 13 of the Memorandum of Agreement, which stipulates that one delegate from each associated taluka should be a member of the Executive Committee, however it leaves open the possibility of electing an unlimited number of office holders from each taluka. The number of office bearers who can be chosen from a particular taluka is not limited under Rule 42(i)(a) of the GCA’s Rules and Regulations. The language employed in Rule 42(ii)(a), which requires that candidates for the Executive Committee elections be delegates with voting rights of and sponsored by Taluka Associations, supports the learned Single Judge’s view. According to this regulation, eligibility is dependent on being a delegate and instead of the number of representatives per taluka, voting rights.

Rule 42(i)(a), which is instrumental in the formation of Executive Committee comprising of both elected and nominated representatives, does not impose any limitations as canvassed by the Appellants. There is no requirement to guarantee that each taluka is represented on the Executive Committee under Rule 42(i)(a). This interpretation conforms to the erudite Single Judge’s opinion, which we also agree with.

We see no justification for interfering with the challenged finding relating to the PO’s judgement since we do not think the Appellants’ objection to the interpretation of such regulations has any validity. Therefore, the learned Single Judge’s opinion is still unchallengeable with regard to this matter as well. In conclusion, the erudite Single Judge’s interpretation based on the explicit wording employed in the GCA’s Rules and Regulations as well as the General Body resolution, appears to be accurate. Instead than restricting the number of office bearers per taluka, it appears that the stated requirements’ main goal is to increase representation and guarantee that each taluka has at least one delegate on the Executive Committee.

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Delhi High Court allowed the writ petition filed and dismissed the order passed by the Container Corporation of India Ltd.

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Title: Loadstar Equipment Ltd. Vs Container Corporation of India Ltd.

Decision: 04.07.23

W.P.(C) 5040/2023 & CM APPL. 19721/2023

CORAM: HON’BLE THE CHIEF JUSTICE MR. SATISH CHANDRA SHARMA

 HON’BLE MR. JUSTICE SUBRAMONIUM PRASAD

Introduction

Delhi High Court allowed the writ petition filed and dismissed the order passed by the Container Corporation of India Ltd, disqualifying the petitioner from participating in the bidding of tender bearing reference no. CON/AREA1/TECH/FORKLIFT-20/2023, which was floated by Respondent No. 1 on their website vide NIT dated 08.02.2023.

Facts of the Case

The Respondent No. 1 invited applications on the government portal for bids from Original Equipment Manufacturers (OEMs)/authorized dealers through a two packet online open tendering system, at an estimated total cost of Rs. 38,11,40,000/-, for the design, manufacture, supply, and commissioning of 20 forklifts with a capacity of 35 tonnes at a specified terminal. This is the background to the current petition.

Respondent No.1/CONCOR subsequently issued a corrigendum in respect of the part of the NIT document which lays down qualification criterion for bidders. Accordingly, Clause 2.1(b) under Section II “General Instructions to Bidders” was added to the NIT document.

Upon examination of the bid documents in the technical stage, Respondent No.1 issued communications to the bidding parties on 23.03.2023 and again on 24.03.2023, calling upon them to submit additional documents to rectify discrepancies found in the documents, latest by 29.03.2023. and The Petitioner submitted their reply to the aforesaid communication and submitted documents to the Respondent vide emails dated 28.03.2023 and 29.03.2023

On a perusal of the documents submitted by the Petitioner, the Tender Evaluation Committee of Respondent No.1 found the Petitioner to be technically not qualified and rejected the bid of the Petitioner vide impugned communication dated 18.04.2023. The Petitioner thereafter addressed an email to the CMD of Respondent No. 1, stating that no reasons had been assigned for their disqualification, and requested the intervention of CMD of Respondent No. 1 to permit the Petitioner to give further clarifications. However, there was no response to this communication.

Being aggrieved by the decision of the Respondent No.1 dated 18.04.2023, disqualifying the Petitioner from the tender process, the Petitioner has filed the instant petition on 19.04.2023, challenging the impugned communication.

Analysis and Decision of the court

In accordance with Clause 2.1, a qualified bidder must have submitted at least one purchase order for a comparable good to at least one government department, CPSC, SPSC, public limited company, etc. during the previous three years and on or before the last day of the financial year immediately preceding the one for which the bid is being submitted. Additionally, it states that a bidder and an authorised dealer cannot submit separate bids for the same product or item in the same tender.

According to Clause 2.1, the manufacturer or an authorised dealer must demonstrate that they have successfully delivered or completed one purchase order in order to be taken into consideration for the tender. According to the certificate provided by APL Apollo Steel Pipes, M/s Excellent Engineering & Allied Service Private Limited provided the device produced by the petitioner.

The justification offered by Respondent No. 1 was that M/s Excellent Engineering & Allied Service Private Limited was the beneficiary of the certificate issued by APL Apollo Steel Pipes. This justification is inadmissible since the proof demonstrates that M/s Excellent Engineering & Allied Service Private Limited worked with Apollo Steel Pipes to complete the machine the petitioner built.

It is undeniably well established that judicial review of administrative acts, including those involving tenders, is severely constrained. However, judicial review may be used to stop arbitrary, unreasonable, and illogical behaviour.

The fundamental requirement of Article 14 of the Indian Constitution is now well established and has been upheld numerous times by the Apex Court. Non-arbitrariness in substance and essence is the lifeblood of fair play, and State actions are subject to judicial review to the extent that the State must act lawfully for a discernible reason and not arbitrarily. The Court must intervene in order to exercise its authority under Article 226 of the Indian Constitution if the State or an instrumentality of the State fails to behave reasonably or fairly in the awarding of contracts. Vice Chairman & Managing Director, City and Industrial Development Corporation of Maharashtra Ltd. and Others v. Shishir Realty Private Limited and Others, 2021 SCC OnLine SC 1141 a case decided by the Supreme Court, where it was held that “Fairness and the good faith standard ingrained in the contracts entered into by public authorities mandates such public authorities to conduct themselves in a non-arbitrary manner during the performance of their contractual obligations” and “The constitutional guarantee against arbitrariness as provided under Article 14, demands the State to act in a fair and reasonable manner unless public interest demands otherwise. However, the degree of compromise of any private legitimate interest must correspond proportionately to the public interest, so claimed”

Arbitrariness is the antithesis of Article 14 of the Indian Constitution, and the State must operate in a fair and reasonable manner, as has been well-established and stated by the Apex Court. As previously stated, the bidder who is a manufacturer only needed to demonstrate that it has experience supplying at least one single purchase order of government departments, CPSEs, SPSEs, Public Listed Companies, ICD, DCT, MMLP, Ports, CFS, CTOs for similar item during the previous three financial years and current financial year last day of month prior to the one in which tender is invited.

A thorough study of Clauses 2.1, 5.4, and Annexures 10 and 11 of the NIT reveals that the maker must merely demonstrate that it has provided a machine that has been installed satisfactorily. In a similar vein, Annexure-14 stipulates that the maker must also provide the certificate.

Since the Petitioner has demonstrated that it satisfies the qualifying requirements, their bid shouldn’t have been turned down.

The Respondent No. 1 was instructed to open the Petitioner’s financial bid during the hearing, and it turned out that the Petitioner was the lowest bidder.

 Given the foregoing, the writ petition and any pending applications, if any, are approved. It is mandated that the Respondents go forward in line with the law.

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