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hc patna

A Order Has To Be Set Aside If It Goes Against The Principle Of Natural Justice: Patna High Court

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Citation: CWJC No.4833 of 2020

Decided On: 16-10-2023

Coram: Honourable The Chief Justice And Honourable Mr. Justice Rajiv Roy

Introduction:

The petitioner is aggrieved with the proceedings taken by the Income Tax Officer, Ward 6(4), Patna. Notice dated 24.09.2018 is issued under Section 148 of the Income Tax Act, 1961, as against the assessee, who is assigned to the Income Tax Officer, Ward 2(3), Jamshedpur. Admittedly, the assessee is assigned to Income Tax Officer, Ward 2(3), Jamshedpur before which Officer, she also filed the Income Tax returns for the Assessment year 2016- 17, as is evident from. No further proceedings were taken by the Assessing Officer, who was the Income Tax Officer, Ward 2(3), Jamshedpur.

Facts:

The petitioner was then issued with notice dated 24.09.2018, in reply to which the petitioner specifically filed response dated 01.03.2019, along with supplementary counter affidavit. The petitioner questioned the jurisdiction and raised specific contentions against the allegations in the notice under Section 148. The petitioner specifically pointed out that there could be no proceedings taken by the Income Tax Officer, Ward 6(4) Patna.

The learned Standing Counsel for the Income Tax Department referred to Section 124(3) and also the consolidation of matters done by the Joint Commissioner of Income Tax, Range – 6, Patna, who has overall jurisdiction of State of Bihar and the State of Jharkhand. It is also specifically pointed out that the land, subject to a development agreement, based on which the notice was issued under Section 148 was located within the State of Bihar.

The Joint Commissioner seems to have transferred the file of the Assessee to the Income Tax Officer Ward 6(4) Patna, on the ground that the property in relation to which the addition is threatened, was located within the State of Bihar, that too inside the boundaries of Patna. Court, specifically noticed that Section 127 which clothes the Principal Director General, Director General, the Principal Chief Commissioner, Chief Commissioner or Commissioner to transfer any case from one or more Assessing Officers sub- ordinate to him, whether with or without concurrent jurisdiction to any other Assessing Officer or Assessing Officers also sub- ordinate to him. However, the specific mandate in Section 127 is that the Assessee should be given a reasonable opportunity of being heard in the matter wherever it is possible to do so.

Court’s Analysis and Judgement:

There is no circumstance brought on record which made the extension of such an opportunity, which is also the statutory mandate, to be impossible in the facts of the present case. Obviously, the transfer was done behind the back of the petitioner. Court found no reason to uphold the order of assessment, which was passed pursuant to a notice issued on the wrong premise of a transfer made by the Commissioner without following the principles of natural justice, which is specifically made a mandate in the provision enabling such transfer. Hence, the assessment order passed and find the notice was set aside.

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Written by- Sushant Kumar Sharma

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Court Has No Need To Interfere When A Fair Inquiry Took Place Before Taking The Decision: Patna High Court

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Citation: L.P.A No.534 of 2021

Decided on: 10-10-2023

Coram: Honourable The Chief Justice And Honourable Mr. Justice Rajiv Roy

Introduction:

The present appeal has been preferred for setting aside the order and judgment dated 06.08.2021 passed by Hon’ble Single Judge in CWJC No. 1192 of 2020 by which the writ petition preferred by the appellant was dismissed.

Facts:

The appellant-petitioner was a PDS dealer at village in Ward No. 11, village-Panapur in the District of East Champaran. Vide notice contained in memo no. 373 dated 04.10.2018 issued under the signature of respondent Sub Divisional Officer, Areraj, East Champaran, the appellant- petitioner was directed to file show cause within a period of three days with respect to the inspection report dated 04.10.18. On 8.10.2018, the appellant-petitioner submitted the representation with a prayer to exonerate him from all the charges. It has been indicated that due to illness, he could not maintain the up-to-date register. He enclosed medical prescription to support the case.

Again vide notice contained in memo no. 384 dated 13.10.2018 passed by Responden, he was asked to file reply. On 22.10.2018, the appellant-petitioner submitted reply reiterating his earlier version. hereafter, vide an order as contained in memo no. 03 dated 27.10.2018 issued by the respondent, the PDS license no. 01/2016 of the appellant-petitioner was cancelled. This followed CWJC No. 13921 of 2019 by the appellant-petitioner which was disposed of vide an order dated 15.7.2019 directing the respondent District Magistrate, East Champaran to dispose of the appeal within sixty days.

The case of the appellant-petitioner before the Writ Court was that no proper opportunity was given to him before the order for cancellation of PDS license was passed. The second submission was that no beneficiary ever complained against him. Further, the document submitted by him was not at all considered and in that background, the orders need interference.

Court’s analysis and decision:

In his show cause filed on 08.10.2018 and 22.10.2018, this non supply of enquiry report was never agitated and thus it was concluded that a false plea is being raised in the writ petition with mala fide intention of obtaining favourable order, which was also deprecated.

The Court has further taken note of the fact that the respondents gave opportunity to the appellant-petitioner before arriving at a conclusion for cancellation of the PDS license. Thus the court did not interfere with the orders dated 27.10.2018 and 29.11.2019 passed by the SDO, Areraj as well as the District Magistrate, East Champaran respectively.

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State government acceptance to Pay revision commission does not make it automatically applicable to the employees of BIADA : Patna HC

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Title:  Rameshwar Prasad Roy v State of Bihar and ors

Citation: CWJC No. 21787 of 2011

Coram:  Justice Rajiv Roy

Decided On: 09-10-2023

Introduction:

The appellant is aggrieved by the rejection of his contentions on the basis of the 6th Pay Revision Commission by the impugned judgment.

Facts:

It was claimed by the appellant that he was continuing as a Junior Selection Grade Typist/ Head Typist receiving a scale of pay of Rs. 1400-2600 which scale was revised to Rs 5000-8000 by the 6th Pay Revision Commission report. The petitioner claims that the revision was once granted but later withdrawn along with arrears on accordance with the same to be paid from the date of pay revision.

Court’s Analysis and Judgement:

The court found that the petitioner is not a Head Typist and the pay revisions in the State Government would not apply to the Bihar, Industrial Area Development Authority unless a decision is taken by the authority to implement the same. The pay revision as applicable to the employees of the BIADA was as per the post in which they were continuing. The mere fact that the State Government had accepted the 6th Pay Revision Commission report would not make it automatically applicable to the employees of the BIADA. As for the arrears, the revision petitions were dismissed.

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Is India Ready For Acceptance Of Same Sex Marriage 

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  1. The historical and cultural context of same-sex marriage in India:

 The historical and cultural context of same-sex marriage in India is vastly different from the western countries where it is widely accepted. India has a rich history of diverse religious and cultural practices that have shaped the institution of marriage. Traditional Indian society has long been rooted in the concept of arranged marriages between heterosexual couples, and any deviation from this norm is often seen as a threat to the societal fabric. Therefore, accepting same-sex marriage would require a significant shift in societal attitudes and a re-evaluation of deeply ingrained beliefs. However, in recent years, there has been a growing movement advocating for LGBTQ+ rights and recognition in India. [1]This has led to a more open and inclusive dialogue about same-sex relationships and marriage. Activists and allies have been working tirelessly to challenge the traditional notions of marriage and push for legal recognition of same-sex unions. While progress has been made, there is still a long way to go before same-sex marriage becomes widely accepted and legalized in India.

  1. Comparing the acceptance of same-sex marriage in other Western countries with the Indian perspective:

 In comparison to other Western countries, the acceptance of same-sex marriage in India is still relatively low. While countries like Canada, the United States, and several European nations have legalized same-sex marriage and have seen a significant shift in public opinion towards acceptance, India’s cultural and religious diversity present unique challenges. Traditional beliefs and conservative attitudes towards marriage and sexuality continue to hinder progress in achieving widespread acceptance of same-sex unions in the country. However, it is important to note that there are pockets of support and growing acceptance within certain communities and urban areas in India.

 One of the main reasons for the slow progress in India is the deep-rooted influence of religion and culture. Hinduism, which is the dominant religion in India, has traditionally held conservative views on homosexuality. Many religious leaders and conservative groups argue that same-sex relationships go against the teachings of Hindu scriptures and threaten the sanctity of traditional marriages. Additionally, India’s diverse cultural landscape, with its multitude of languages, customs, and traditions, further complicates the push for widespread acceptance of same-sex unions. Different regions and communities within India have varying levels of understanding and acceptance of LGBTQ+ individuals.

In some parts of India, particularly in urban areas, there has been a growing acceptance and visibility of the LGBTQ+ community. Pride parades and LGBTQ+ organizations have emerged, providing safe spaces and support for individuals to express their sexual orientation or gender identity. However, in more conservative rural areas, LGBTQ+ individuals may still face discrimination, social stigma, and even violence. The struggle for equal rights and acceptance for the LGBTQ+ community in India is an ongoing battle, as societal attitudes and cultural norms continue to evolve.

  1. Analyzing the legal and constitutional implications of accepting same-sex marriage within the Indian framework:

Analyzing the legal and constitutional implications of accepting same-sex marriage within the Indian framework is a complex and contentious issue. While the decriminalization of homosexuality in 2018 was a significant step towards equality, the recognition of same-sex marriages is still a distant reality. The Indian legal system, rooted in traditional values and religious beliefs, presents numerous challenges when it comes to amending existing laws or enacting new ones to accommodate same-sex marriages. Additionally, the constitutional interpretation of marriage as a union between a man and a woman further complicates the path towards marriage equality.

 Despite these challenges, there has been a growing movement within India to advocate for the recognition of same-sex marriages. Activists, lawyers, and members of the LGBTQ+ community have been tirelessly working towards dismantling the barriers that prevent equal rights for all citizens. They argue that denying same-sex couples the right to marry not only violates their fundamental human rights, but also perpetuates discrimination and marginalization.

Furthermore, advocates for marriage equality in India argue that legalizing same-sex marriages would have numerous benefits for society as a whole. They contend that granting same-sex couples the right to marry would promote social inclusivity and acceptance, as well as provide legal protections and benefits for these couples and their families. Additionally, they assert that recognizing same-sex marriages would enhance India’s reputation as a progressive and inclusive nation on the global stage. By embracing marriage equality, India would send a powerful message of equality and respect for all its citizens, regardless of their sexual orientation.

  1. Examining public opinion and societal attitudes towards homosexuality in India, and how it may impact the acceptance of same-sex marriage:

Public opinion and societal attitudes towards homosexuality in India play a crucial role in determining the acceptance of same-sex marriage. While there has been progress in recent years, with the decriminalization of homosexuality in 2018, traditional beliefs and cultural norms still pose significant challenges. Many individuals and communities continue to hold conservative views, viewing homosexuality as immoral or unnatural. However, there is also a growing acceptance and support for the LGBTQ+ community, especially among the younger generation. This shift in attitudes is evident through the emergence of LGBTQ+ pride parades, support groups, and advocacy organizations across the country. [2]

Nonetheless, homophobia and discrimination still persist in various forms, including hate crimes, workplace discrimination, and social stigma. Despite progress in some areas, the fight for equality and acceptance for the LGBTQ+ community is far from over. It requires ongoing education, dialogue, and policy changes to dismantle the barriers that hinder full inclusivity and respect for individuals of all sexual orientations. Additionally, the intersectionality of LGBTQ+ identities with race, gender, and socioeconomic status adds another layer of complexity to the struggle for equality.

  1. Discussing potential challenges, debates, and controversies surrounding the westernization argument for same-sex marriage in India:

It is crucial to understanding the diverse perspectives within the LGBTQ+ community. While some argue that adopting a Western model of marriage equality may lead to cultural erosion and the loss of traditional values, others believe that it is a necessary step towards achieving equal rights and recognition for same-sex couples. This debate highlights the complexities of navigating LGBTQ+ rights within different cultural contexts and the need for nuanced discussions that take into account the unique challenges faced by each community.[3]

 One of the main concerns raised by those who argue against adopting a Western model of marriage equality is the potential erosion of cultural values. They believe that embracing same-sex marriage may lead to the loss of traditional practices and customs that have been deeply rooted within their communities for centuries. This fear stems from the belief that the LGBTQ+ movement is heavily influenced by Western ideologies and that adopting Western concepts of marriage may undermine the cultural identity of non-Western LGBTQ+ individuals.

Conclusion:

It is important to recognize that cultural values are not stagnant, but rather evolve and adapt over time. Embracing marriage equality does not necessarily mean abandoning cultural traditions, but rather finding a balance between honoring heritage and promoting inclusivity. It is possible for non-Western LGBTQ+ individuals to maintain their cultural identity while also advocating for equal rights within their communities. By fostering open dialogue and understanding, societies can navigate the complexities of cultural values and create a more inclusive and accepting environment for all individuals, regardless of their sexual orientation.

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Written By : Sushant Kumar Sharma

[1] Kelly Kollman, Same-sex unions : The Globalization of an idea, Vol.51, No.2, OXFORD UNIVERSITY PRESS, 329 (2007)

[2] Same sex marriage in India, DRISHTI IAS (Oct 17,2023), https://www.drishtiias.com/daily-updates/daily-news-analysis/same-sex-marriage-in-indiahttps://www.drishtiias.com/daily-updates/daily-news-analysis/same-sex-marriage-in-india

[3] US Same-Sex Marriage Ruling Likely to Impact Other Countries, VOA News (June 28, 2015, 10:19 AM) https://www.voanews.com/a/ap-us-same-sex-marriage-ruling-likely-to-impact-other-countries/2840511.html

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A Person Accused Of A Bailable Offence Is Entitled To Bail As A Matter Of Right : High Court of Himachal Pradesh

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Title: Sushil Kumar v State of Himachal Pradesh

Citation: Cr.MPM No. 2705 of 2023

Coram: Hon’ble Mr Justice Rakesh Kainthla

Decided On: 9th November, 2023

Introduction:

The petitioner has filed the present petition for seeking pre-arrest bail. It has been asserted that F.I.R. No. 146/2023, dated 27.08.2023, was registered for the commission of offences punishable under Sections 376, 506 of IPC, Sections 6 and 21 of the Protection of Children from Sexual Offences Act (POCSO Act) and Section 67 of the Information Technology Act in Police Station Bhoranj, District Hamirpur, H.P. The petitioner was not made accused initially in the F.I.R. but, subsequently, he was made an accused for the commission of an offence Punishable under Section 21 of the POCSO Act.

Facts:

It was asserted that the victim was studying in 10+2 standard. In September 2022, there was a tournament in the school where, the main accused administered some substance to the victim and took her to the hotel, where he prepared an indecent video and raped her. He threatened the victim to make her video viral in case of reporting the incident to any person. The main accused subsequently uploaded the Video on the Facebook. The police registered the F.I.R. and conducted the investigation. The victim was found to be a minor.

The main accused had raped the victim in September 2022, November 2022, December 2022, January 2023, and 15th February 2023, when he was a minor but he had attained the majority in April 2023 at the time of the commission of offence. The main accused was arrested. It was found during the investigation that the incident had taken place in Hotel River View. The victim had visited the hotel four times in school dress. The Manager and owner of the hotel knew that the victim was in school dress and she was a minor but they failed to report the matter to the police. Hence, the offence punishable under Section 21 of the POCSO Act was made out against the petitioner.

learned counsel for the petitioner submitted that the offence punishable under Section 21 of the POCSO Act is bailable and the petitioner is entitled to the bail as a matter of right. There is no evidence that the petitioner was aware of the commission of a crime and the offence punishable under Section 21 of the POCSO Act was not made out against him. Hence, he prayed that the present petition be allowed and the petitioner be released on pre-arrest bail.

Court’s Analysis and Judgement:

A perusal of the Section shows that it provides imprisonment of six months/one year or/and a fine. It does not mention whether the offence is bailable or not. Since the POCSO Act does not provide the nature of the offence; hence, it has to be determined with reference to the Code of Criminal Procedure. The classification of the offences under the Code of Criminal Procedure clearly shows that if the offences are punishable with imprisonment for less than three years, the offences are bailable and non-cognizable. Section 21 of the POCSO Act provides a punishable of six months/1 year; therefore, the same will be a bailable offence as per the Code of Criminal Procedure.

The reason is that a person accused of a bailable offence is entitled to bail as a matter of right. Therefore, the present petition is not maintainable and the same is dismissed by the court.

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