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Minor legal heir eligible for compassionate apportionment; but appointment upon attaining majority-Chennai High Court (Madurai Bench).

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Case title: State of Tamil Nadu v. C. Arnold

Case no: W.A(MD)No.479 of 2024 and C.M.P(MD)No.3875 of 2024

Dated on: 01st April 2024

Quorum: Hon’ble Mr. Justice R. Suresh Kumar and Hon’ble Mr. Justice G. Arul Murugan.

Facts of the case:

This Writ Appeal filed, under Clause 15 of Letters Patent, is to set aside the order dated 16.11.2023 made in W.P(MD)No.27247 of 2023 and W.M.P(MD)No.23395 of 2023 seeking Compassionate appointment. The Respondent/Writ Petitioner and father, working as a B.T Assistant in a Government High School, passed away on 03.01.2016, while in service. At the time of his father’s death, the Writ Petitioner was 15 years and 6 months old. On his behalf, his mother made an application dated 02.01.2018, before the Chief Educational Officer, seeking compassionate appointment which was rejected vide Order dated 31.05.2023 on the ground that on the date when the application was made, the respondent/writ petitioner was a minor. That rejection order was challenged before the High Court. The learned Judge, who heard the Writ Petition, took note of the fact that the Rule issued by the Tamil Nadu Government, in the Tamil Nadu Civil Services (Appointment on Compassionate Grounds) Rules, 2023 was notified on 08.03.2023 and at the time of consideration of the application submitted by the respondent/writ petitioner the said Rule was already in force and despite which it was rejected in May 2023 ie., by order, dated 31.05.2023. Hence, it was an erroneous approach on the part of the Appellant employer.

Issues:

Whether it was correct on the part of the Respondent to reject the Compassionate appointment on 31.05.2023 based on G.O.Ms.No.155 Labour and Employment (Ku1) Department, dated 10.12.2014 when Tamil Nadu Civil Services (Appointment on Compassionate Grounds) Rules, 2023 was already notified on 08.03.2023?

Legal provisions:

Writ Appeal filed, under Clause 15 of Letters Patent- lays down that any appeal can be made to the High Court provided it is not a sentence or order passed or made in the exercise of criminal jurisdiction.

Tamil Nadu Civil Services (Appointment on Compassionate Grounds) Rules, 2023- These rules govern the appointment of individuals on compassionate grounds within the Tamil Nadu Civil Services.  

Contentions of the appellant:

At the time of making the application seeking compassionate appointment, the respondent/writ petitioner, was only a minor who has completed only 15 years and 6 months. Therefore, at the time when he attained majority, three years period was over from the date of death of the employee ie., his father. Therefore, beyond three years period, compassionate appointment would not be considered. This rejection was based on Rule, dated 10.12.2014, of G.O.Ms.No.155, Labour and Employment Department and therefore, the said order of rejection ought not to have been interfered by the Writ Court.

Contentions of the respondent:

The Government of Tamil Nadu had framed rules for appointment on compassionate grounds under Tamil Nadu Civil Services (Appointment on Compassionate Grounds) Rules, 2023. The said rule was notified on 08.03.2023 and as per the said Rule 6, there is no minimum age limit for making an application. However, an appointment order could be issued only on completion of 18 years of age. These Rules were prevailing on the date of consideration of the application. Hence, the action of the 3 rd Respondent in relying upon G.O.Ms.No.155 Labour and Employment (Ku1) Department, dated 10.12.2014 was not right.  

Court analysis and judgement: 

Compassionate appointments are made to bail out the families of the employee, whose sudden demise would push the family to penury. Compassionate appointment is made depending upon the education and other qualifications of the dependent of the deceased employee and further no person can be employed in any organization, unless he attains majority ie., above 18 years. In most cases, when such an employee dies, the son or daughter or the dependents other than the spouse would be minor and therefore, it will take some years for them to reach the majority by which period the three years period from the date of death of the employee would be over. Under such circumstances, though the dependent or legal heirs would become eligible to seek for compassionate appointment but by then the period of three years would be over. These difficulties were considered by the State Government, and they bought Rule 6, the same is briefly mentioned herein. On the date of application for appointment. –  the spouse or medically invalidated Government servant or parent of the deceased servant, must have completed fifty years of age; and the son, daughter, brother or sister of the deceased or medically invalidated Government servant must not have completed forty years of age. There shall be no minimum age limit for the applicant on the date of application for appointment, provided appointment shall not be provided unless the applicant completes eighteen years of age.” Hence, under Rule 6, the maximum age has been prescribed, but minimum age limit was not prescribed. It was made clear that the appointment shall not be provided unless the applicant completes eighteen years of age Therefore, the intention of the Rule making authority is clear, that under no circumstances compassionate appointment should be denied to a family for want of attaining the majority of the legal heir/dependent of the deceased employee’s family. If compassionate appointment could not be given immediately, the employer can consider such application and grant/extend the benefit of compassionate appointment to the dependent/legal heir upon his attaining majority. When the intention of the Government was made very clear and as the Rule was effective from 08.03.2023, the Rule should have been applied by the employer. It is due to this reason that the learned Judge interfered with the said order and given direction for extending the benefit of compassionate appointment.  Writ Appeal is accordingly disposed with no costs. The appellants to consider the application, within a period of two months from the date of receipt of a copy of this order. When such consideration is made, if any similarly placed persons are there seniority is to be followed. In the name of following the seniority, the plea of the respondent/writ petitioner cannot be deferred or rejected and if in case there is no vacancy available, where he has sought, then as per the existing procedure, the request of the respondent/writ petitioner be forwarded, where similar vacancy is available and necessary orders to be passed. 


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Granting Pre-Arrest Bail for Accused Individuals Residing Abroad

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Abstract:

The article basically highlights on the aspects whether anticipatory bail should be given to the accused who are residing in abroad, especially is they are charged for non-bailable offences. An application for pre-arrest bail can be entertained even though the applicant is residing abroad since he has a fundamental right to travel abroad and also a fundamental right to access courts for determination of his rights.

Key words: interim bail, anticipatory bail, regular bail, bail and non-bailable offences.

Introduction:

Law is a dynamic field which consistently changes or more specifically, improvises itself and takes its shape as per the needs and requirements of common man. An offence under statutory meaning, it is an act or omission made punishable by any law for the time being in force. The term ‘offence’ is itself categorized into two groups i.e; bail and non-bailable offences. Bail is defined under CrPC 1973. But it could also be defined as interim release of an accused person accompanied by some sort of security with the belief that the person would appear before the court whenever and wherever called. However, in this Article the focus is on Pre arrest Bail i.e; Anticipatory Bail basically governed under Section 438 of the Code of Criminal Procedure. Section 438 is procedural provision which is concerned with the personal liberty of the individual. Section 438 has a clear nexus with the personal liberty which is protected from unfair, unjust and unreasonable deprivation by Art. 21 of the Constitution.

Remedies available to an Accused upon accusation of a Crime:

 Regular bail- A person who is arrested and in police custody can apply for a regular/daily bail. Bail provisions are given under Section 437 and 439 of the Code of Criminal Procedure. Under Section 437 Cr.pc courts other than High Court and Sessions grant bail, whereas under Section 439 Cr.pc High courts and Sessions Court grant bail.

 Interim bail- Interim bail is awarded by a direct order of the Court to temporarily release an accused for a short term. The Courts noticed that interim bails are being misused in many cases and have decreased the number of interim bails issued.   

 Anticipatory bail:

An anticipatory bail is defined under code of criminal procedure of 1973. However, Section 438 of the code deals with the anticipatory bail in India. ‘Anticipatory’ as the word suggests that when any person apprehends that he may be arrested on an accusation of having committed a non-bailable offence, he may approach the High Court/ Session Court for a direction that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail and by that it acts as a preventive measure for the accused. The guardians of the Law had to come with this legislation or bare minimum provisions that could deal with the issue of anticipatory bail. As, the so-called influential people tend to take advantage of this provision and detain their nemesis into false cases with the purpose to create nuisance in their lives and defame them by putting them behind the bars.

Necessities required for granting the Anticipatory Bail:

The High Court and the Sessions Court especially while granting an anticipatory bail have to keep certain conditions in the mind. These conditions are mentioned in the Section 438(2). The following are the conditions for an anticipatory bail:-

 The applicant must be present whenever and wherever called upon by the court for police investigation as required by the police officer.  The applicant shall not leave the country without the court’s consent. The applicant must submit his personal details like contact number, permanent address and a subsidiary address to the concerned police officer. The applicant shall not use any undue influence like use of threat, inducement or make any lucrative promise to any person of importance of the case. The charges framed against the applicant are vague and are generic in nature.

Can a person while residing outside India file for an anticipatory bail?
  
The Hon’ble Kerala High Court in Vijay Babu v. State of Kerala and Anr. (2022) held that a person can file for a pre-arrest bail if residing outside India. Section 438 of CRPC 1973, does not include a provision which specifically states that a person residing outside India can’t file for an application of Anticipatory bail. It is quite possible for a person to be apprehended even outside the country for an offence committed in India, due to advancements in tech & communication. In case, a person residing outside India, there is a possibility that he can be arrested under Sections 188 of CrPC and Sections 4 of IPC, the statute empowers such a person to seek protection from such kind of arrest. According, to the single bench of Judge bench of Hon’ble Justice Bechu Kurian Thomas, a bail application can be filed by a person residing outside India on the condition that “The applicant must be present in the country i.e., within the court’s Jurisdiction prior to the final hearing in order for the court to enforce proper conditions as per the statute.  

Judicial pronouncements:

In Anu Mathew v. State of Kerala- The Hon’ble Judge while considering the Anticipatory Bail has referred the case to Division Bench by discussing the various case laws which are as given below: “In Shafi Vs State of Kerala: A person sitting in another country cannot file an application under S.438 of the CrPC before the Court apprehending arrest. There are no averments in the Bail Application that there is an apprehension of arrest to the petitioner in the country w ere he is now residing based on the accusation in this case. Even in such a situation, an application under S.438 CrPC cannot be entertained by this court. A bail application under S.438 CrPC cannot be filed before this Court by the petitioner sitting in an armchair in a foreign country. He is not entitled an order under S.438 CrPC in such a situation. Jurisdiction of this Court under S.438 CrPC is discretionary” The Learned Judge has referred the following issues to Higher Bench, If a person who is an accused in a case absconded from India and went abroad after fully knowing about the registration of a non-bailable offence against him, and thereafter if he file bail application under Section 438 CrPC whether the bail court should entertain such a bail application? When an accused went abroad, after knowing that he is an accused in a nonbailable offence, and thereafter filing a bail application before this Court, whether he is entitled interim bail as per Section 438(1) CrPC? Whether the bail court has jurisdiction to pass orders restraining the Police in arresting accused without passing interim bail orders.

In Princy Nijoy v. UOI- While considering the bail application, the Honourable High Court has discussed the following case laws: “In Anu Mathew vs. State of Kerala [2023(3) KHC 151], a Division Bench of this Court has succinctly laid down the law that if an accused has absconded from India and gone abroad knowing fully well about the registration of a crime in respect of a non-bailable offence, though he may technically have a locus standi to maintain an application for pre-arrest bail, but, if the Court is convinced that the accused had absconded and fled away from the Law Enforcement Agencies, it would not be right and proper for the Court to exercise its jurisdiction under Section 438 of the Code. In Siddharam Satlingappa Mhetre v. State of Maharashtra [(2011) SCC 694] the Hon’ble Supreme Court has held as follows: “No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case. 
In Sibbia case [(1980) 2 SCC 565: 1980 SCC (Cri) 465] that the High Court or the Court of Session has to exercise their jurisdiction under Section 438 CrPC by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour. In Jai Prakash Singh v. State of Bihar and Anr.[(2012) 4 SCC 379] the Hon’ble Supreme Court has held that, an order of pre-arrest bail being an extra ordinary privilege, should be granted only in exceptional cases. The judicial discretion conferred upon the Courts has to be properly exercised, after proper application of mind, to decide whether it is a fit case to grant an order of pre-arrest bail. The court has to be prima facie satisfied that the applicant has been falsely enroped in the crime and his liberty is being misused. The Hon’ble Judge held that, on consideration of the facts, the materials placed on record, the rival submissions, the law referred, and on comprehending the nature, seriousness and gravity of the offences alleged against the petitioner, that the petitioner is abroad for the last more than two years, and further that the petitioner custodial interrogation is necessary and recovery is to be effected, I am not inclined to exercise the discretionary powers of this Court under Sec.438 of the Code and grant an order of pre- arrest bail in favor of the petitioner”. 

Conclusion:

Anticipatory bail, is a preventive measure for an individual who has an 
apprehension of arrest and to save him from police abuse and ill treatment by the system in general and also it acts as a safeguard from the powerful people, when they are involved in a case. The Hon’ble Supreme Court of India has emphasised on this point time and again through a catena of judgements. Anticipatory bail is a device to secure the individual’s liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusation, likely or unlikely. That being the case as far as an individual who flees the Country to escape from clutches of law and seek the relief of Section 438 from a foreign country needs to be adjudged on case to case basis with regard to nature of offences alleged and various other facts. Further, we may await for the Higher Bench ruling on the said fact for settlement of the issue.

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delhi high court

Delhi High Court upholds EC Commissioner order for compensation to parents of deceased employee by upholding that the deceased person was an “Employee”

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Case title: M/S Madras Trading Co v. Ramjeet @ Ramjeet and Anr

Case no: FAO 119/2017 & CM APPL. 9580/2017, CM APPL. 28069/2018

Dated on: February 13th, 2024

Quorum: Hon’ble Mr. Justice Dharmesh Sharma

Facts of the case:

The appellant herein is a proprietorship concern run by Mr. Sukhpreet Singh, and it is engaged in a small business of sale of air conditioners and spare parts. The respondents were the claimants before the Employee Commissioner and are the legal heirs/parents of the deceased. The claimants filed Statement of Claims before the Commissioner on 27.07.2015, stating that that their deceased son Tata, was employed with the appellant as an AC Mechanic at a monthly wage of Rs. 15,000/-. On 30.04.2014, Sh. Tata was sent by the appellant to do AC repair work wherein the AC compressor burst resulting in fatal injuries and his death at the age of 25 years. An FIR was registered on 01.05.2014 at P.S. Kirti Nagar, on statement of coworker Sh. Sanjay Kumar who along with the deceased had gone to carry out work when the accident occurred. He stated that both of them were employed with the appellant firm and are entitled for compensation of Rs. 20,00,000/- along with penalty of 50% and interest @12% per annum, payable from the date of the incident till realization. The appellant on 09.12.2015 replied by denying the “employer-employee‟ relation and objected for non-enclosure of any documents/proofs to prove such employer- employee relationship. The learned Commissioner framed the following issues “(i) whether the employee – employer relationship exists between the parties? – (ii) Whether accident resulting into death of the deceased is caused out of and during the course of employment and if so, to what amount of death compensation, the dependents of the deceased are entitled to? (iii) Relief, if any? The learned Commissioner decided in favor of the claimants/respondents by holding that the claimant’s evidence was reliable and sufficient in proving the events. However, the respondent firm (appellant herein), failed to prove that there exists no employer- employee relationship. The learned Commissioner held that the claimants are entitled to compensation of Rs. 8,67,640/- along with simple interest @12% per annum w.e.f. 29.07.2015. Hence, this appeal.

Contentions of the appellant:

The learned Commissioner finding is perverse. The “employer-employee‟ relation between the deceased and the appellant firm, was decided solely on the FIR by completely ignoring the contradictions in the testimony of the claimants during cross-examination. An FIR is not a piece of substantive evidence as it requires corroboration through documentary, circumstantial or oral evidence. It is contended that apart from the “Control Test‟, “Integration Test‟ also needs to be considered such as the power to select and dismiss, to pay remuneration, deduct insurance contributions and the “mutual obligations‟ between the employer and the employee as well. The only evidence put forth by the respondents/claimants is a photocopy of the visiting card of the appellant. The testimony of respondent No.1 as well as of Sanjay Kumar was inconsistent. The appellant firm is not engaged in the business of AC repair but is a small proprietorship concern engaged in the sale of Air Conditioners and that they have not employed any persons.  

Contentions of the respondent:

The order passed by the learned Commissioner is well reasoned and has been passed after a thorough consideration of the pleadings of the parties and the materials placed on the record. The grounds taken by the appellant in the present appeal are misconceived and baseless. There is no substantial questions of law involved.

Issues:

Whether the Respondents are entitled to claim compensation under the EC Act?  

Legal provisions:

Compensation Claim under EC Act- Workers can file claims for compensation directly with the Commissioner or through a lawyer.  

Courts analysis and Judgement:

An appeal under Section 30 of the EC Act lies to the High Court from the following orders of a Commissioner ie (a) an order awarding as compensation; (aa) an order awarding interest or penalty (b) an order refusing to allow redemption of a half- monthly payment; (c) an order providing for the distribution of compensation among the dependents of a deceased employee, or disallowing any claim of a person alleging himself to be such dependents; (d) an order allowing or disallowing any claim for the amount of an indemnity under Section 12 (2). It is further provided by way of a proviso that no appeal lies against any order unless a “substantial question of law‟ is involved in the appeal. In the case of North East Karnataka Road Transport Corporation vs. Sujatha, the Supreme Court considered the scope and ambit of Section 30 of the EC Act as to what would constitute “substantial question of law‟, the question such as “whether the employee met with an accident, whether the accident occurred during the course of employment, whether it arose out of an employment, how and in what manner the accident occurred, who was negligent in causing the accident, whether there existed any relationship of employee and employer, what was the age and monthly salary of the employee, how many are the dependants of the deceased employee the extent of disability caused to the employee due to injuries suffered in an accident, whether there was any insurance coverage obtained by the employer to cover the incident, etc. are some of the material issues which arise for the just decision of the Commissioner in a claim petition when an employee suffers any bodily injury or dies during the course of his employment and he/his LRs sue(s) his employer to claim compensation under the Act” The aforementioned questions are essentially the questions of fact and, therefore, to be proved with the aid of evidence. Once they are proved either way, the findings recorded thereon are regarded as the findings of fact.” The learned Commissioner has given a categorical finding that the deceased workman suffered fatal injuries during the course of his employment with the appellant. The reliance by the Commissioner on the contents of the FIR and statement of co-worker cannot be faulted. The proceedings under the EC Act are summary in nature and hence strict adherence to provisions the Indian Evidence Act, 1872 cannot be applied. There are grounds by which it can be presumed that the facts were truthfully revealed regarding the circumstances which resulted in the fatal accident and was correctly incorporated by the Investigating Officer. The claimants are from poor background who are illiterate and ignorant. The Visiting card in possession is sufficient to show the connection of the appellant as an employer with the Respondent’s deceased son. Once the Claimants had laid the basic foundation to the claim, the onus then shifted upon the appellant to disprove the fact that there existed no employer-employee relationship between the parties. The appellant could have even summoned and examined the co-worker Sanjay Kumar to disprove the relationship of employer and employee. The plea of respondent No.1 acknowledging that he did not know the proprietor of the appellant can be taken considering the background of the parents. There is no apparent reason for the Investigating Officer to have fabricated the FIR or for the co-worker Sanjay Kumar to have given a false statement soon after the accident. In view of the foregoing discussion, the impugned order does not suffer from any patent illegality, perversity or incorrect approach adopted in law. The present appeal is dismissed with exemplary costs of Rs. 25,000/- which be paid to the respondents No. 1 and 2 in equal share within one month from today, failing which they shall be entitled to claim the same with interest @ 9% per annum from the date of this order till realization. The pending applications also stand disposed of accordingly.  

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At the stage of considering bail, Court to exercise utmost diligence in evaluating the prima facie allegations against the accused- Delhi High Court

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Case title: Sunny Alias Ravi Kumar v. State of NCT of Delhi.

Case no: Bail Appln. 3580/2023

Dated on: 29th April, 2024

Quorum: Hon’ble Mr. Justice Amit Mahajan.

Facts of the case:

The present application is being filed under Section 439 of the Code of Criminal Procedure, 1973 (CrPC) seeking a grant for regular bail in FIR No.255/2023 on 10.03.2023 for offences under Sections 376/354D/506 the Indian Penal Code, 1860 (IPC). It is alleged that the applicant used to stalk the prosecutrix and claimed that he loved her. It was stated that after the prosecutrix rejected the applicant, the applicant had threatened her. It was declared that on 01.12.2021 the applicant had called the prosecutrix at GTB Nagar metro station, the applicant then had threatened the prosecutrix with suicide due to which the prosecutrix agreed to meet him and have regular conversations with him. In December 2021 the applicant took the prosecutrix to his friends house in Aadarsh Nagar, and forced her to have sexual relations with him for the first time. It was stated the applicant took the prosecutrix to a hotel named Welcome Hotel 5-6 times and forced her to have sexual relations with him. It is alleged that the applicant took the prosecutrix to Haridwar on April,2022 and allegedly married the prosecutrix there. Later on, the prosecutrix found out that the applicant was married and also had two children. It was also stated that the applicant would demand gifts from the prosecutrix leading her to give him nearly Rs. 1.5 lakhs in cash and many other items. On 07.03.2023, the applicant had called the prosecutrix when he was intoxicated and told her to meet him at Aadarsh Nagar Metro Station from there the applicant took her to the Welcome Hotel and forced her to have unnatural sex with him. A medical examination was conducted of the prosecutrix at BJRM hospital Delhi, and her statement was recorded under Section 164 of CrPC. Chargesheet was filed under Section 376/354D/506 of IPC.

Contentions of the prosecution:

It was alleged that the applicant used to stalk the prosecutrix and also claimed that he was in love with her. It is alleged that after the prosecutrix rejected the advances of the applicant, the applicant threatened her. It was stated that on 01.12.2021, the applicant called the prosecutrix at GTB Nagar Metro Station. When the prosecutrix reached to meet him, the applicant threatened her with suicide due to which the prosecutrix agreed to meet him and have regular conversations with him. It was alleged that in December, 2021, the applicant took the prosecutrix to one of his friend’s house in Aadarsh Nagar, and forcefully established sexual relations with the her for the first time. It is alleged that thereafter, the applicant took the prosecutrix to a Hotel, namely, Welcome Hotel, about 5-6 times, and forced her to have sexual relations with him there. It is alleged that the applicant also took the applicant to Haridwar in April, 2022 for three days and allegedly married the prosecutrix there. Later, found out that the applicant was married and had two children. It is alleged that the applicant used to demand gifts from the prosecutrix and she had allegedly given ₹1.5 lakhs in cash, two mobile phones, clothes and two silver rings to the applicant, and also resorted to violent means when she did not pay heed to his demands. on 07.03.2023, the applicant called the prosecutrix when he was intoxicated and forced her to meet him at the Adarsh Nagar Metro Station, the applicant thereafter took the prosecutrix to the Welcome Hotel and forced her to have unnatural sex and beat her when she refused. A medical examination of the prosecutrix was conducted at BJRM Hospital, Delhi and her statement was also recorded under Section 164 of CrPC. The chargesheet was filed under Section 376/354D/506 of IPC. The Public Prosecutor for the State opposes the present bail, saying that there is a high possibility that the applicant could extend the threats to the prosecutrix’s family, and therefore, the bail application to be dismissed.

Contentions of the applicant:

The case that was filed against the applicant is basically to humiliate, torture him and to harass him and he has been in judicial custody since 10.03.2023. It was stated that there are material differences in the FIR and the statement of the prosecutrix recorded under Section 164 of CrPC. It is also contended that as clear from the contents of FIR, the relationship between the applicant and the prosecutrix was consensual in nature and had continued for two years. It was further submitted that the custody of the applicant is not necessary for the investigation, as there are no chances of the applicant to abscond or flee from justice, and that the promise of marriage is completely absurd and untrue. Lastly, he says that there has been an unnecessary delay in the filing of an FIR which increases the suspicion about the allegations made by the prosecutrix.  

Issue:

Whether the Bail application filed by the Applicant is to be allowed?  

Legal provision: 

Section 376 of IPC- Rape the punishment is not for less than 10years, which may extend to life imprisonment and, a fine.

Section 354D of IPC- Stalking any man who repeatedly follows, contacts, or monitors a woman’s communication despite her clear disinterest will amount to imprisonment for three years.

Section 506 of IPC- Criminal intimidation.

Section 164 of CrPC- empowers a magistrate to record a person’s testimony or confession regardless of whether or not he has the jurisdiction.  

Courts analysis and judgement:

The Court, while considering the application for bail, has to consider the nature of the offence, severity of the punishment and prima facie involvement of the accused. The Court is now not required to enter into the detailed analysis of the evidence. The bail is not to determine the guilt but it’s only a safeguard to ensure the accused’s right to liberty, pending trial. The court needs to maintain balance between securing the complainant’s interest and safeguarding the accused’s right. In the present case, the allegations levelled is that the Applicant had established forceful physical relations with the prosecutrix on multiple occasions on the false pretext of marriage. It is not denied that the prosecutrix had known the applicant for a long time. The alleged incident, for the first time, is said to have taken place in the month of December, 2021, however no complaint was made at the time. Thereafter, the prosecutrix continued to have sex on several occasions and even then, no complaint was made by her. The prosecutrix got FIR registered on 10.03.2023, that is, almost after fifteen months from the first alleged incident The Hon’ble Supreme Court Apex Court, in Meharaj Singh (L/Nk.) v. State of U.P. (1994) 5 SCC 188, held that Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story…” The prosecutrix has not mentioned date or time of the alleged incidents. The prosecutrix was a major and hence the consent of the prosecutrix whether vitiated by a misconception of fact arising out of a promise to marry can be established only at the time of trial. The averment of the applicant that there are discrepancies between the FIR and Section 164 CrPC statement is also a matter of trial. At this stage, no evidence has been adduced to show that the applicant had made forceful relation with the prosecutrix or has issued any threats of making viral her photographs or has demanded money, mobile phones from the prosecutrix. It is apparent that the prosecutrix was meeting the applicant for quite some time before filing the complaint and wanted to continue their relationship despite knowing that the applicant is a married man. The decision to continue with the relationship points towards her consent. The actions at this stage, does not suggest passive acquiescence under psychological duress but implies towards her consent which is devoid of any kind of misconception. The Hon’ble Supreme Court in Pramod Suryabhan Pawar v. State of Maharashtra: (2019)SCC 608 has laid out as to when a “promise to marry” is a “false promise” or a “breach of promise”. The Supreme Court held that two propositions must be established to establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry ie the promise of marriage must have been a false, given in bad faith and with no intention of being adhered. The false promise must be of immediate relevance or bear direct nexus to the woman& 39 decision to engage in the sexual act. At the stage of considering bail, it is neither appropriate nor feasible for the court to draw conclusion, as to whether a promise of marriage made to the prosecutrix was false and in bad faith with no intention to adhere. This issue can be determined after an assessment and evaluation of evidence. It is imperative on the part of Court to exercise utmost diligence in evaluating the prima facie allegations on cases to case basis especially when there are contentious issues of consent and intent. Further, it is not in dispute that the antecedents of the applicant are clean. The applicant, is aged about 34 years and is in custody since 10.03.2023 and has a wife and two minor children to take care of. Keeping the applicant in jail will not serve any useful purpose. 
In view of the above, the applicant is directed to be released on bail on furnishing a personal bond for a sum of ₹25,000/- with two sureties of the like amount, subject to the following conditions: a. The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case or tamper with the evidence of the case; b. He shall not contact the complainant other witnesses; c. The applicant shall not travel out of the country without prior permission; d. The applicant shall not tamper with evidence nor indulge in any unlawful act or omission which would prejudice the trial. The applicant to appear before the learned Trial Court as and when directed. The applicant shall not visit the locality where the prosecutrixy resides. The applicant to provide the address where he would be residing and shall not change the address without informing the concerned IO/ SHO; h. The applicant to give his mobile number to the concerned IO/SHO and shall keep his mobile phone active and switched on at all times. In the event of any FIR/ DD entry/ complaint lodged against the applicant, State can seek redressal by filing an application for cancellation of bail. The observations made in the present order are for the purpose of deciding the only the present bail application and should have no bearing on the outcome of the Trial and shall not be taken as an expression of opinion on the merits of the case. The bail application is accordingly, allowed.  

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Supreme court upholds CESTAT view that the process of labeling/ re labeling, packing / re-packing amounts to “manufacturing”.

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Case title: Commissioner of central excise Belapur V. Jindal Drugs Ltd

Case no: Civil appeal No. 1121 of 2016 and 788-790 of 2022

Dated on: 30th April, 2024

Quorum: Justice Abhay S. Oka and Justice Ujjal Bhuyan

Facts of the case:

This is an Appeal against the Order dated 16.04.2015 passed by Customs Excise and Service Tax Appellate Tribunal (CESTAT) against Appeal No.E/86389/13-Mum.The Respondent is engaged in the business of exporting cocoa butter and cocoa powder. Its factory at Jammu manufactures cocoa butter and cocoa powder. Respondent has another unit located at Taloja. The Cocoa butter manufactured at Jammu are received by the Respondent’s unit at Taloja. In the Taloja unit, respondent affixed two labels on two sides of the packages of the goods received from its Jammu factory and had claimed rebate of the duty paid on the exported goods. Further, respondent availed cenvat credit of the duty paid on those two goods at the time of clearance from Jammu. Respondent also imported cocoa butter and cocoa powder from China and Malaysia which was received at Taloja.The factory of the respondent at Taloja was visited by the officials of the appellant and it was found that the respondent was not only putting labels on the good bought from the Jammu unit but also was putting labels on the imported goods. As the labels were already fixed on the boxes containing the two goods additional labels affixed did not amount to manufacture as the additional labels affixed would not enhance the marketability of the goods which were already marketable. The appellant then issued a show cause notice to the respondents on 09.10.2012 to show cause as to why activity of labelling undertaken by the respondent on the product received from the Jammu unit and also on the imported goods are not to be held as activity of manufacturing in the terms of Note 3 chapter 18 of the Central Excise Tariff Act. It was alleged that the respondent had wrongly availed cenvat credit amounting to Rs. 23,02,53,752/. from the period of June, 2008 to July 2012. It was also alleged that the rebate amounting to Rs. 13,22,30,368 from the period of June, 2008 to July, 2011 was erroneously sanctioned. Thereafter, hearing the respondent, appellant passed an order on 25.02.2013 that the cenvat credit availed was irregular and the rebate sanctioned was erroneous thereby, the respondent was made liable to refund the credit availed for Rs. 23,02,53,752/- and a rebate of Rs. 13,22,30,368/- along with interest and penalty of 23,02, 53,752/- However, the penalty could be reduced to 25%, if the assessee paid the duty within 30 days of order. The Respondent preferred appeal before CESTAT. After hearing the matter CESTAT passed an order dated 16.04.2015 by stating that activity undertaken by respondent is covered by Note 3 to chapter 18 which amounts to manufacture and that there was no suppression or misrepresentation of the material fact by the respondent. That being the position the cenvat credit and the refund availed by the respondent was right and hence no penalty could be imposed. Aggrieved by the same, the appellant has now preferred appeal.

Contentions of the appellant: 
The activity undertaken at the Taloja unit i.e; putting labels on both the sides of the cartons that were labelled at Jammu is not a manufacturing activity. Note 3 to chapter 18 Central Excise Tariff Act cannot be read in the manner that the activity of the labelling amounted to manufacture. The Technical Member of CESTAT had given a good reason to why such an activity cannot be considered as a manufacturing activity.

Contentions of the respondent: 
In Note 3 chapter 18 of the Central Excise Tariff Act, Parliament has consciously replaced the word ‘and’ by the word ‘or’, vide amendment dated 01.03.2008, thereby making it clear that the activity of labelling or re-labelling amounted to “manufacture”.

Legal provisions:

Section 11A (1) of the central excise act- deals with recovery of duties not levied or paid or short-levied or short-paid or erroneously refunded. 
Rule 14 of Cenvat credit rules 2004- credit has been taken wrongly or erroneously refunded. 
Rule 3 of cenvat credit rules- A manufacturer or producer of final products shall be allowed to take credit.   


Issues: 
Whether the activity of labelling amounts to manufacture?

Courts analysis and judgement:

Supreme court examined the definition of “manufacture” under Section 2(f)(ii) under Central excise Act “manufacture” includes any process, (i)incidental or ancillary to the completion of a manufactured product. 
(ii) which is specified in relation to any goods in the Section or Chapter notes of the First Schedule to the Central Excise Tariff Act (5 of 1986) as amounting to manufacture; or 
(iii) which, in relation to the goods specified in the Third Schedule, involves packing or repacking of such goods in a unit container or labelling or re-labelling of containers including the declaration or alteration of retail sale price on it or adoption of any other treatment on the goods to render the product marketable to the consumer, and the word “manufacturer” shall be construed accordingly and shall include not only a person who employs hired labour in the production or manufacture of excisable goods, but also any person who engages in their production or manufacture on his own account; Therefore, the word ‘manufacture’ includes any process which is incidental or ancillary to the completion of a manufactured product; any process specified in Section or chapter notes of the first schedule to the Central Excise Tariff Act or any process in relations to goods specified in 3rd schedule which involves packing or re-packing, labelling or re-labelling, declaration or alteration of retail sales price or adoption of any other treatment on the goods to render the product marketable. Further, post-amendment of 01.03.2008 to Note 3 to chapter 18 of the Central Excise and Tariff Act, “manufacture” contemplates any of the three processes. The three processes are- 
i) labelling or re-labelling of containers; or 
ii) repacking from bulk packs to retail packs; or 
iii) the adoption of any other treatment to render the product marketable to the consumer. 
If any one of the above three processes is satisfied, then the same would amount to “manufacture” under Section 2 (f) (ii) of the Central Excise Act. There is no dispute as to the activity carried out by the respondent at the Taloja unit. Whether the goods are brought from Jammu or are imported, those re-labelled on both the sides of the pack containing the goods at the Taloja unit and thereafter, introduced in the market or sent for exports, in terms of Note 3 to the chapter 18 this process of re-labelling amounts to “manufacture”. The view taken by the CESTAT is correct and no case for interference is made out. Accordingly, the civil appeal 788-790 of 2022 stands dismissed.

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