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Karnataka HC upholds that signing Jaya Bharata Jananiya Tanujate the State anthem in a particular tune will not infringe the fundamental right guaranteed under Art.19(1)(a) and (1)(g)

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Case title: Kikkeri Krishna Murthy and the State of Karnataka and Ors.

Case no: Writ petition No. 19801 of 2022

Dated on: 24th April, 2024

Quorum: The Hon’ble Mr. Justice Krishna S Dixit

Facts of the case:    petitioner is a well- known singer who has filed a complaint before the court by filing a writ petition against the State Govt of Karnataka order dated on 25.09.2022 whereby the State Government had directed the rendition of the State anthem ‘Jaya Bharata Jananiya Tanujate’ in a specific tune or raaga that was composed by Shri. Mysore Ananthaswamy .

Contentions of the appellant:

The impugned order constitutes an unreasonable restriction onto right to expression guaranteed under Article 19 (1) (a) of the constitution, asking citizens to sing a song in a particular tune or raaga is constitutionally impermissible unless it is authorized by law. There is no restrictions for citizens prescribed to sing any particular tune or raaga. Just because, a committee had recommended a particular tune or raaga in which the Naadageethe needs to be sung the impugned order does not get validated.

Contentions of the respondent:

Petitioner has not mentioned as to which right of his has been infringed by the impugned order. After, taking the unanimous report of the committee into consideration the State has prescribed a particular tune or raaga for rendering the naadageethe. In schools, Naadageethe has to be sung in a certain manner in order to maintain uniformity amongst the students; Similarly, in offices or Governmental bodies it’s made compulsory to sing in official occasions only. It is always open to citizens the said song in any tune or raaga of their choice. Under, the provisions of the Karnataka Education Act, 1983. The Govt has power to issue the impugned order which otherwise also has executive power that is vested under Article162 of the Indian Constitution.

Legal provisions:

Section 3(1) of Karnataka Education Act, 1983- generates general education, professional education, medical education, technical education at all levels in accordance with provisions of the act.

Article 19(1) (a) and 19 (1) (g)- guarantees its citizens the freedom of speech and expression. Also, grants its citizens the freedom to practice any profession or trade or business of his/her choice.

Article 162- extent of executive power of the state.

Issue:

Whether the action of the State Govt in prescribing a particular raaga or tune for the State anthem is arbitrary and unreasonable?

Court analysis and judgement:

The impugned order does not come in his way of singing the naadageethe in his tune or raaga . Despite the vehement submissions the petitioner isn’t in a position to demonstrate his right to sing in qualified spaces like schools, governmental bodies that is composed by other stalwarts in the variance once specified. Since, the impugned order does not infringe any right of the petitioner to sing naadageethe in any raaga anywhere anytime except in certain qualified places; he is not an “aggrieved person”. No school has come forward to challenge the order and the petitioner is not supporting cause of any school and hence the impugned order does not give a proper cause of action in maintaining the petition. Permission of singing the national anthem in any specified raaga is permissible under Article 162 of the constitution. In, Sahib Ram Jawaya Kapur V. State of Punjab (1955) 2 SCR 225 it was observed that when there is an residue of government function that remains after legislative and judicial function are taken away that is when the executive powers come into actions, and if such action effects rights of citizen the authority of law would be required. The contention of petitioner that his right to speech and expression under Art. 19(1)(a) and 19(1)(g) has been infringed by imposing unreasonable restrictions does not merit acceptance. The question of adjudging reasonable restrictions arises when the substantive right and curtailment is demonstrated. However, such demonstration lacks in the case. As, the petition is devoid of merit is liable to be dismissed.

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Mere membership of banned organizations is a sufficient ingredient to incriminate without there being an overt act :SC

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Case title: Jamsheed Zahoor Paul V. State of NCT of Delhi.

Case no: CRL.A. 51/2024.

Dated on: 24th April, 2024.

Quorum: Hon’ble Mr Justice Suresh Kumar Kait and Hon’ble Mr. Justice Manoj Jain.

Facts of the case:

Special Cell (New Delhi Range), Lodhi Colony received information that two persons i.e. Parvaiz Rashid Lone and Jamsheed Zahoor Paul (appellant herein) were radicalized youths of Jammu & Kashmir, having allegiance to banned terrorist organization ISIS/SI/DAESH. As per intelligence inputs, they had procured arms and ammunition from UP for their cadres for executing some terrorist act in Jammu & Kashmir and would come at Netaji Subhash Park, near Lal Quila (Red Fort), Delhi on 07.09.2018 to proceed to Kashmir. Both the aforesaid named suspects were found moving towards Lal Qila. Search of the appellant yielded recovery of one pistol, containing live cartridges. These were seized. During investigation, both the accused divulged that they were propagating ideology of terrorist outfit ISIS in India and were in touch with another ISIS militant, namely, Abdullah Basith. Though, initially, FIR had been registered for commission of offence under Section 25 Arms Act, after detailed investigation and on the basis of the incriminating material collected during investigation, both the accused were accordingly charge-sheeted for commission of offences under Section 25 Arms Act and for Sections 18 & 20 of UAPA. Appellant had earlier moved one application seeking bail which was dismissed, and it was withdrawn on 06.06.2019. He moved another bail application which, too, was dismissed on 01.05.2020, feeling aggrieved, he preferred Criminal Appeal 345/2021 which was, however, not pressed and resultantly, the same was dismissed by this court on 31.01.2022. It was thereafter only that the appellant moved another bail application which also did not find favor and was dismissed by the learned trial court vide impugned Order dated 16.11.2023. Such, Order is under challenge now.

Contentions of the appellant:

There is no material to show that appellant had indulged into any unlawful or terrorist act. The entire case of prosecution is dependent upon the disclosure statements of the accused persons and these statements have no evidentiary value, being inadmissible in law. There is nothing to indicate that any message or BBM chat retrieved from the electronic device of the appellant had any potential to indicate that he was in contact with any terrorist. Appellant could not be branded as “terrorist‟ or a “person involved in terrorist act” merely on the basis of the recovery of a pistol and, therefore, invocation of draconian provision of UAPA is totally mis-founded and unwarranted. There is nothing to indicate that the appellant was a member of ISIS or their purported fronts. Mere framing of charge does not create any embargo against grant of bail as the consideration for framing the charge is different from the one required for grant of bail. Appellant has undergone incarceration for more than five and half years and the trial are not likely to conclude any time soon and, therefore, his fundamental right as enshrined under Article 21 of the Constitution of India has been seriously jeopardized, entitling him to be released on bail on that count alone.

Contention of the respondent:

There are serious allegations against the appellant and the learned Trial Court has already come to a definite conclusion that there is a prima facie case against him for offences under Section 18 & 20 UAPA. According to the respondents, there are following clear-cut allegations and if all these allegations are read conjunctively, it would clearly reveal his complicity qua offences under Section 18 & 20 UAPA. One loaded pistol was recovered possession and the fact he had purchased the same from four juveniles was found to be correct. Appellant was found in possession of two electronic devices, and it was found that he was found using Black Berry Messenger for communicating with his associates. Appellant and his co-accused had procured illicit arms and had come to Delhi together and were to leave for Kashmir together in furtherance of their conspiracy.

Legal Provisions:

Section 18 & 20 of UAPA- Punishment for Organizing Terrorist Camps
Punishment for Being a Member of a Terrorist Gang or Organization
Section 43D(5) of UAPA- makes it virtually hard to grant a bail.
Section 10 of Evidence Act- pertains to the admissibility of evidence in cases involving conspiracy.



Issue:

  • Whether in view of the fact that charges have already been framed and such charges have not been challenged by the appellant, whether bail plea can be considered and whether the court can go on to opine that there are no reasonable grounds for believing the accusation to be prima facie true?

  • What should be the level of scrutiny for believing the same? Whether the appellant has been able to show that there is no prima facie case against him?
  • Whether despite such statutory bar being in place and when prima facie is found to be made out, bail can still be granted in order to safeguard his fundamental rights.




Court analysis and Judgement:

The Hon’ble Supreme Court in Gurwinder Singh Vs. State of Punjab & Anr. 2024 SCC On-Line SC 109, the impact of Section 43D (5) of UAPA was delineated and it was observed that the conventional idea in bail jurisprudence – bail is the rule and jail is the exception – does not find any place in UAPA. It further observed that exercise of general power to grant bail under UAPA is severely restrictive in scope. In National Investigation Agency v. Zahoor Ahmad Shah Watali: 2019 SCC On-Line SC 461 elaborate guidelines was laid about the approach that the Courts must partake in, while considering bail application under UAPA. In context of the meaning attributable to “prima facie true‟, it observed that material collected by the investigating agency, on the face of it, must show the complicity of the accused in relation to the offence and must be good and sufficient to establish a given fact or chain of facts constituting the stated offence, unless rebutted or contradicted by other evidence. It also observed that at the stage of giving reasons for grant or rejection of bail, the elaborate examination or dissection of evidence was not required and the Court is merely expected to record a finding on the basis of broad probabilities. Thus, once charges are framed, it can be easily assumed that there is a very strong suspicion against the accused. Therefore, in such a situation, the task of any such accused becomes much more onerous and challenging as it is never going to be easy for anyone to satisfy that the same set of material, which compelled the court to frame charges on the basis of strong prima facie case, would persuade it to hold to the contrary, by declaring that such accusation was not prima facie true. Be that as it may, there can never be any restriction or embargo on moving application seeking bail. Such unfettered right remains available as long as the proceedings are alive.  As per allegations appearing on record and facts and circumstances placed before the court, the appellant was continuously in touch with his co-accused, travelling with him and arranging weapons. He was in touch with militants as well and met one of them in Delhi. Conspiracy has to be inferred by connecting dots from bunch of circumstances. Moreover, Section 10 of Evidence Act cannot be kept aside which visualizes such type of situation and makes the actions and the statements of co- conspirator to be relevant as against the others. Appellant does not seem to be in any position to wriggle out of the statutory bar contained in proviso of Section 43D (5) of UAPA as there are clear-cut allegations which go on to indicate that accusation against him is prima facie true.  The appellant was in touch with cadres of ISIS which is sufficient to give insight of his culpable mind. In Arup Bhuyan v. State of Assam, (2023) 8 SCC 745, it has been observed that mere membership of banned organization is also sufficient to incriminate, without there being any overt act. Learned counsel for the appellant has prayed that accused has already undergone incarceration for more than 5 ½ years and trial is not likely to conclude in near future. It is argued there is no likelihood of case getting disposed of in near future and, therefore, on the strength of Union of India v. K.A. Najeeb, (2021) 3 SCC 713, it is prayed that despite the aforesaid statutory bar, Constitution Court can always grant bail so that the right of speedy trial and that of life and liberty do not stand defeated.  However, in the case in hand, the maximum sentence provided under Section 18 & 20 UAPA is imprisonment for life and there is nothing which may indicate that prosecution is acting in a manner which is detrimental to his fundamental rights. The learned trial court has already observed that it, being already conscious about such fundamental right of the accused, was taking up the matter diligently by giving shortest possible dates. Therefore, there is no further requirement of passing any further direction in this regard. Resultantly, finding no substance in the appeal, we hereby dismiss the same.

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Delhi High Court’s Jurisdiction Limited to Cases of Perversity in Industrial Tribunal Decisions

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Case title: Director General, Delhi Doordharshan Kendra v. Mohd. Shahbaz Khan, Tej Pal Manohar Paswan, Danvir Hans Raj.

Case no: LPA 242/2024, LPA 243/2024, LPA 244/2024, LPA 245/2024, LPA 246/2024,

Dated on: 22nd March, 2024

Quorum: Hon’ble Justice Rekha Palli and Hon’ble DR. Justice Sudhir Kumar Jain.

Facts of the case:

Appeals filed under Clause X of the Letters Patent LPA 242/2024 & other connected appeals to assail five similar orders dated 12.12.2023 passed by the learned Single Judge in a batch of Writ Petitions. Vide the impugned order dated 12.12.2023, the learned Single Judge has rejected the Appellant’s challenge to the award dated 15.10.2007 passed by the learned Industrial Tribunal (Tribunal), wherein the learned tribunal after holding that the termination of the respondents’ service by the Appellant was illegal, has directed the Appellant to reinstate them with 25% back wage.

Contentions of the appellant:

The learned Tribunal as also the learned Single Judge have failed to appreciate that the respondents were never employed with the Appellant but had in fact, been engaged by one M/S Navnidh Carriers who was engaged by the appellant on 31.07.1998, to provide manpower services as and when required. The learned Tribunal has not examined as to whether the Respondents had completed 240 days of continuous service in the year immediately preceding their termination, which aspect the learned Single Judge also over looked. Instead of placing the onus to prove the existence of an employer-employee relationship on the respondents, the learned Single Judge has wrongly shifted the said onus on the Appellant.

Contentions of the respondent:

The learned Tribunal has, as a matter of fact, found that the respondents had been working with the Appellant/Organization much prior to 31.07.1998, i.e; the date when the appellant had, with malafide intention, engaged M/S Navnidh Carriers for providing manpower services and therefore, it was evident that the respondents had initially been engaged by the appellant itself. The experience certificate dated 13.07.1999 issued by the appellant to one of the respondents wherein it has been categorically stated that he had been working with the appellant as a casual labourer since July 1997 and was an honest and hardworking worker. The appellant admittedly does not have any licence to engage workmen through a contractor as is mandated under the Contract Labour (Regulation and Abolition) Act, 1970 (the CLRA Act), it is evident that the respondents were to be treated as employees of the appellant itself. He, therefore, prays that the appeals be dismissed.

Legal provisions:

Contract Labour (Regulation and Abolition) Act, 1970 (the CLRA Act)- regulated the employment of contract labor in certain establishments and provides for its abolition in certain circumstances. Article 226 of the Constitution- gives the High court the power to issue orders, directions and writs to any person or the authority including the Govt for the enforcement of Fundamental rights.

Issue:

Whether Respondents were engaged by the Appellant and were illegally terminated? When can Writ Court interfere with the factual findings of fact of Labour/Industrial Tribunal?

Courts judgement and analysis:

The learned Tribunal as also the learned Single Judge, after taking into account the gate passes as also experience letter dated 13.07.1999 issued by the appellant to one of the respondents have come to a conclusion that the respondents were employed with the appellant/ organisation and had been illegally terminated. Both the learned Single Judge as also the learned Tribunal found upon appreciation of evidence that the purported contract by the appellant in favor of M/s Navnidh Carriers was sham and an attempt to conceal the engagement of the respondents with the appellant. The learned counsel for the appellant has not been able to give any explanation whatsoever for the issuance of the said experience certificate if the respondent namely Mohd. Shahbaz Khan was not their employee. The Appellant did not have any license, as mandated under the CLRA Act, 1970, to engage workmen through a contractor, hence it is evident that they were directly engaged by the appellant. In the light of these categoric factual findings by the learned Tribunal, which cannot, in any manner, said to be perverse or contrary to the evidence lead before the learned Tribunal, we are of the view that it was neither open for the learned Single Judge to interfere with these findings in exercise of its writ jurisdiction nor is it open for this Court to examine these questions of fact. In Dinesh Kumar v. Central Public Works Department, 2023 SCC On-Line Del 6518, wherein the co-ordinate Bench after examining various decisions of the Apex Court held that writ Court can interfere with the factual findings of fact recorded in the industrial award only if the same are perverse or are entirely unsupported by evidence. The jurisdiction of the High Court in such matters is quite limited. In Management of Madurantakam Coop. Sugar Mills Limited v. S. Viswanathan, (2005) 3 SCC 193, the Apex Court, held that the Labour Courts/Industrial Tribunals as the case be is the final court of facts, unless the same is perverse or not based on legal evidence, which is when the High Courts can go into the question of fact decided by the Labour Court or the Tribunal.  The Hon’ble Supreme Court in State of Haryana v. Devi Dutt, (2006) 13 SCC 32, has held that the writ Court can interfere with the factual findings of fact only if in case the Award is perverse; the Labour Court has applied wrong legal principles; the Labour Court has posed wrong questions; the Labour Court has not taken into consideration all the relevant facts; or the Labour Court has arrived at findings based upon irrelevant facts or on extraneous considerations. In the present case, the Labour Court has arrived at a conclusion based upon the evidence adduced by the parties and the learned Single Judge has affirmed the findings of fact again after minutely scanning the entire evidence, and therefore, the question of interference by this Court does not arise. In the light of the aforesaid, we find absolutely no reason to interfere with the concurrent findings of fact arrived at by the learned Tribunal and the learned Single Judge to hold that the respondents were engaged by the appellant and were illegally terminated. The appeals being meritless are, along with all pending applications, dismissed.

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Accused presumed to be innocent unless proved to be guilty- burden lies on the prosecution: SC

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Case title: C. Bala Malleshwar Rao, G Chandrashekhar, Syed Anwar Hussain, G. Damodar, K.L. Rama
Rao, V. Satyanarayana.
Case No: Criminal appeal No.729 of 2007, Criminal Appeal No.737 OF 2007, Criminal Appeal No.793 OF
2007, Criminal Appeal No.828 OF 2007, Criminal Appeal No.850 OF 2007.
Dated on: 16th April,2024.
Quorum: Hon’ble Sri Justice K. Surender.
Facts of the case:
The Registrar of Osmania University addressed a letter dated 03.12.1993 in the form of complaint to the Director General, Anti -Corruption Bureau alleging that: there was large scale embezzlement in payment of over time allowances contrary to the financial rules and procedure; Printing material purchased by Director-A1 along with other employees resulted in misappropriation of funds; Purchase of press equipment by A1 along with other employees deliberately without usage to gain illegally. Accordingly, the case was registered on 01.01.1994 and investigation was taken up. During 1990-91 to 1992-93, A1 issued self-cheques amounting to Rs.28,99,343.43ps. The said cheques were encashed by A2 and A4. The said amount meant for overtime allowances to the employees were disbursed to an extent of Rs.11,13,339.59 ps and misappropriated the balance of Rs.17,86,003.84 ps punishable under Section 13(1) (c ) and 13(2) of Prevention of Corruption Act. A1, for the very same orders issued self-cheques and third-party cheques to an extent of Rs.54,71,964.18ps to A2, A3, A7 to A11, who have encashed the cheques. It was shown that printing material worth Rs.36,55,560/- was purchased. However, the remaining amount of Rs.18,16,404-18 ps was not accounted, punishable under Section 13(1)(c)and Section 34 of IPC. A1 has issued self-cheques amounting to Rs.5,08,502.50ps and A2, A5 and A6 encashed the said cheques. An amount of Rs.25,470/- was given for private orders and the remaining amount of Rs.4,83,032.50 ps was misappropriated, punishable under Section 13(1)(c) of Section 34 of IPC. A1, A3 to A5 and A7 to A11 have entered into criminal conspiracy while discharging their duties and misappropriated the amounts to an extent of Rs,17,86,003.84 PS, Rs.18,16,404.18 PS, Rs.1,18,10,000.26ps and Rs.4,83,032.50 PS for purchase of printing material, punishable under Section 409 A1, A3 to A5 and A7 to A11 have falsified accounts willfully with an intention to defraud the institution and caused wrongful loss to the printing press, Osmania University, Hyderabad to an extent of Rs,17,86,003.84 PS, Rs.18,16,404.18 PS, Rs.1,18,10,000.26ps and Rs.4,83,032.50 PS, punishable under Section 477-A 120-B The ACB, during the course of investigation, having collected documents and examining witnesses filed charge sheet for the offences under Sections 13(1)(c ) r/w 13(2) Section 13(1)(d)(1) & (ii) r/w 13 (2) of the Prevention of Corruption Act, under Section 409 r/w 120-B IPC and Section 477A r/w Section 120-B IPC. Learned Special Judge convicted A3 to A5 and A7 to A11 and sentenced to undergo rigorous imprisonment for a period of one year each under Sections 13(1) (c), 13(1)(d) (1) & (ii) r/w 13(2) of the Prevention of Corruption Act, 1988 r/w 34 IPC, Section 409 r/w 120-B IPC, Section 277-A r/w 120-B IPC. Aggrieved by the conviction recorded by the Principal Special Judge, City Civil Court at Hyderabad vide judgment in C.C.No.17 of 2000 dated 15.06.2007 for the offences punishable under Sections 13(1)(c ) r/w 13(2) Section 13(1)(d)(i) & (ii) r/w 13 (2) of the Prevention of Corruption Act, under Section 409 r/w 120-B IPC and Section 477A r/w Section 120-B IPC, these Criminal Appeals are filed.
Contentions of the appellant:
The learned Special Judge has relied heavily on the enquiry conducted by P.W.2 against A1, A3 and A4 and the enquiry report Exs.P15, 16 and 17 respectively. The findings in the enquiry report were made without examining the witnesses. The documents Exs.P1 to P14, P22 to P247 which are overtime bills, cash books, bank statements, cheques and registers were all marked through P.W.1, who was Assistant Registrar, Osmania University. Merely marking the said documents cannot form basis for the Court to rely upon the gist of all the documents. The prosecution ought to have exhibited before the Court as to how the misappropriation was done by the appellants herein. Enquiry was conducted only against A1 to A4 and there is no enquiry against any of the other accused. Merely on the basis of conclusions drawn in the enquiry, all the accused were convicted. It was A1 who had the cheque power, drawing and disbursing power and responsible for the accounts of the Osmania University press. It was A1 who had informed and acknowledged that the amounts received were in fact paid to the persons who had executed job work which are the outside agencies. Learned counsel for A5 and A7 submits that enquiry was not conducted against A5 and A7. That itself reflects that even the department did not have any doubt about the alleged involvement of A5 and A7. It was specifically stated by investigating officer that A3 to A11 were not concerned with purchase of printing material. Learned counsel appearing for A4 argued that A4 was not entrusted with any amounts and whatever amounts were asked to be disbursed by A1, was disbursed. The allegation that A4 was maintaining overtime allowance register and other record were not proved by the prosecution. The Learned Special Judge had relied on the alleged confession of A4 before the enquiry officer/P.W.2 that he had withdrawn amount and was also maintaining the records pertaining to overtime allowances, which formed basis for conviction, which is incorrect.
Contentions of the respondent:
It is not in dispute that amounts were entrusted to A1 as the Director for the purpose of disbursing overtime allowances and also purchase of stationery and other material. The amounts that were withdrawn by A1, who had the power to disburse amounts and make payments for purchase of stationery, has to account for the same. In the absence of giving details of payments made after withdrawing the amounts, would clearly reflect that A1 along with other accused have misappropriated the amounts that were entrusted to them. The entire documents that were collected during the course of investigation and examined by PWs.1
to 4 during enquiry that was conducted against A1 to A4 can be looked into by the criminal Court for the purpose of adjudicating upon the criminal acts committed by these public servants. In the said circumstances, learned Special Judge was right in convicting the accused.
Legal provisions:
Sections 13(1) (c) of the Prevention of Corruption Act: states that a public servant is guilty of an offence if he dishonestly converts property for his public use. Section 13(2) of the Prevention of Corruption Act: any public servant who commits a misconduct will be sent for a rigorous punishment for a year. Section 13(1)(d) (1) & (ii) of the Prevention of Corruption Act: obtaining pecuniary advantage by corrupt means. Section 409 IPC: criminal breach by a servant or the banker. Section 120-B IPC: being a part of a criminal offence with death penalty or imprisonment. Section 477A IPC: falsification of accounts. 
Issue:
Whether the statements that were prepared on the basis of the documents available in the department can form basis to infer misappropriation and falsification of accounts, without there being any independent witnesses examined to support the allegation of drawing or
disbursing amounts in the names of individuals and Firms, or that such persons have not received amounts; Whether such statements prepared on the basis of enormous documents that were examined by witnesses can form basis to conclude guilt in the absence of proving each and every document before the Court below; Whether the learned Special Judge was right in invoking Section 106 of Indian Evidence Act on the basis of statements prepared by P.Ws.1 to 7 to convict the accused on the ground that the accused failed to discharge burden shifted on to them.
Courts judgement and analysis:
Appellants have totally denied the allegations leveled against them regarding any kind of misappropriation. Not a single witness is examined by the investigating agency to show that amounts were drawn, or cheques issued in favor of an individual or a firm and such amounts were not paid. Learned Special Judge believed the version of the prosecution witnesses regarding statements that were prepared and concluded that under Section 106 of Indian Evidence Act, the burden is on the accused to explain regarding the amounts that were withdrawn as such withdrawals and usage was to the exclusive knowledge of the accused. It is not in dispute and admitted that. The entire basis of P.W.2 finding A1, A3 and A4 guilty of the charges of misappropriation are the statements that were prepared under Exs.P1 and P35. The Court and the Investigating 30 Officer/P. W 8 heavily relied on Exs.P15 to P19 enquiry reports of P.W.2. The accused denied execution of any of the documents that were placed by the prosecution to show entrustment of the funds to them by A1.
Departmental enquiry conducted by any enquiry officer, who is appointed will conduct enquiry on the basis of preponderance of probabilities and inferences or conclusions will be drawn on the basis of the evidence that is placed before him and/or collected. However, in criminal cases, the principle of proof is beyond reasonable doubt, contrary to the procedure followed in the departmental enquiry. The Hon’ble Supreme Court in the case of Balvir Singh v. State of Uttarakhand held that when the prosecution has offered evidence which can be believed by the Court and convincing regarding the accused guilt beyond reasonable doubt, then the burden shifts on to the accused to present evidence regarding the facts peculiarly which are within the knowledge of the accused. The approach of the learned Special Judge in shifting the burden on to the accused to explain the opinion and inferences drawn during departmental enquiry is incorrect and it does not fall within the purview of Section 106 of Indian Evidence Act to draw adverse inference against accused and convict the accused. In view of above discussion, in the absence of any proof and direct evidence against the accused apart from the inferences drawn by P.Ws.1 to 3 and P.W.38, on the basis of the record found in the office, there cannot be any conviction for the offences alleged. The factum of entrustment to the appellants herein are assumptions on the basis of the withdrawals from Banks and payments made by A1 through cheques. Admittedly, self cheques were drawn and signed by A1. Not a single bank
witness is examined to show that at any point of time, self-cheques or the cheques of others were encased in the bank by any of these appellants.
The prosecution ought to have produced witnesses from the Bank to prove that cheques signed by A1 were withdrawn by the appellants herein. In the absence of any such proof, the question of these appellants abetting A1 in committing alleged misappropriation of the funds entrusted to A1 would not arise. The Hon’ble Supreme Court in the case of R. Sai Bharathi v. J. Jayalalitha held that entrustment has to be proved for establishing an offence of criminal misappropriation. The case is one of circumstantial evidence. The burden is on the prosecution to prove the circumstances of the case by admissible and legal evidence. All such circumstances cumulatively should form a complete chain pointing unerringly towards the guilt of the accused. The Hon’ble Supreme Court in the case of State of Uttar Pradesh v.  Suhasi, Haricharan v. State of Rajasthan held that where if there are missing links in the chain of evidence adduced by the prosecution, benefit of doubt should go to the accused.
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Interim relief cannot be seeked for an International Arbitration Case: SC

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Case title: Ilwohnibrand Co. Ltd. V. Mahakali Food Pvt.Ltd and Ors.

Case no: Arbitration case No.of 2023

Dated on: 3rd April, 2024

Quorum: Hon’ble Justice Sushrut Arvind Dharmadikhari  and Hon’ble Shri Justice Devnarayan Mishra

Facts of the Case:

The petitioner had business relationship with the respondent no.1 to 3. A sale contract was entered into between the petitioner and the respondents on 18.09.2019 for supply of 2014 MT ‘ Full-Fat Soya Grits’. However, respondents committed a breach of contract wherein there was neither the quantity supplied according to the contract nor the quality. Even for the sub-standard material supplied by the respondent, the authorities conducted raid and sealed the premises of the petitioner. Petitioner notified the respondent about the breach. Respondent though admitted the supply of substandard quality under the contract and promised to compensate the petitioner but no such compensation was ever paid. Another contract was entered into between the petitioner and the respondent wherein respondent insisted for enhanced rate and issued proforma invoice and payment was duly made by the petitioner. However, respondent again committed breach of contract by not supplying the material as per the timeline mandated in the contract and in fact only supplied goods worth $1,42,500 despite receiving advance payment of $375,000 and thereafter respondent did not make any supply and stopped answering the calls. Again, with malicious intent, respondents communicated that it shall pay the balance amount to the petitioner, but no heed has been paid. Efforts to resolve the dispute failed since the respondent did not want to and stopped making communication with the petitioner. Since, the contract between parties provides for resolution of dispute by way of arbitration to be conducted in India, the petitioner filed petition under the Section 9 (1)(i) of the Conciliation Act of 1996 before the Commercial Court which was dismissed for want of jurisdiction with liberty to the petitioner to approach appropriate forum. Hence, the present petition had been filed. Shri Aniket Naik, appointed as Amicus Curiae submitted that petitioner has already approached the Commercial Court under Section 9 of the Act of 1996 seeking interim protection. However, learned Commercial Court dismissed the application filed by the petitioner holding the same as not maintainable for want of jurisdiction as the matter pertains to international commercial arbitration and not domestic arbitration.

Contentions of the Appellant:

Learned counsel for the petitioner submitted that evidence of breach committed by the respondent are available and, therefore, an order of interim protection securing the amount involved in the arbitration is required to be passed since despite sending several reminders, respondent kept making false promises, but neither exported the balance shipment nor compensate for the delivery of sub-standard quality of products thereby putting the petitioner to suffer irreparable loss. In terms of section 2(e) and (f) of the act of 1996, the petition can by heard by this court being the jurisdictional court and the present arbitration being an international commercial arbitration. In an identical situation the apex court , in S.D. Containers V. Mold Tek Packaging Ltd., had remanded the case to the court to be tried under its original civil jurisdiction where the court held that while invoking its powers under clause (9) of the letter patent read with rule 1(8) of chapter IV of the rules of the exercise its extra ordinary civil jurisdiction. Hence, the petition which is made under Section9 of the Act 1996 is exclusively triable by this court, therefore, the present petition to be deleted from the category of  the arbitration case and be listed under  the relevant category before appropriate single bench.

Contentions of the Amicus Curiae:

Petitioner has already approached the commercial court under Section 9 of the Act of 1996 seeking interim protection. But the court dismissed saying that the same is not maintainable as it pertains to international arbitration. Thereafter,

Petitioner has preferred the present application under section 9 (2)(1)(f) of the act of 1996 which is not maintainable in the view the fact that as per the Chapter 2 Rule 3 of Rules, 2008 an application under section 11 of the act of 1996 shall be registered as arbitration case which deals with the appointment of the arbitrator.  Court to sub-rule 8 Rule 10 Chapter 2, of the High Court rules 2008 which says that these cases can be considered as a  Miscellaneous Civil Case and also to be registered as a Miscellaneous Civil Case if they do not fall under the ambit of the first seven clauses which is not interlocutory to any proceedings. It is submitted that petitioner can very well file Miscellaneous Civil Case in terms of sub-rule 8 of Rule 10 of Chapter 2 of Rules of 2008, which can be entertained and appropriate orders can be passed.

Legal Provisions:

Section 9 of the Arbitration and Conciliation Act-  Seeking interim reliefs before, or during the arbitral proceedings, or at any time after the passing of the award but before it is enforced.

Section 11 of the Arbitration and Conciliation Act- Appointment of the arbitrator.

Sub-rule 8 of Rule 10 of Chapter 2 of the High Court of Madhya Pradesh rules of 2008- Filing miscellaneous civil cases.

Issues:

Whether the petitioner is entitled to seek interim measure of protection and securing the amount involved in the arbitration   under section 9 of Arbitration act 1996 and section 10 of the commercial courts act,2015?

Courts Judgement and Analysis:-

The present petition itself is not maintainable on twin grounds:

(i) Firstly , the petitioner resorting to the liberty granted by the Commercial Court has filed present petition under Section 9 r/W Section 2(1)(f) of the Act of 1996 seeking interim protection before this Court which cannot be entertained by this Court.

(ii) Secondly, as rightly pointed out by Amicus Curiae, in terms of Chapter 2 Rule 3 of the Rules of 2008, an application Section 11 of the Act of 1996 shall be registered as an arbitration case which deals with appointment of Arbitrator which is not the case herein.

In the considered opinion of this Court, looking to the nature of case and the relief as sought for by the petitioner, the same does not fall within the category of an Arbitration Case. Rather the same ought to have been filed as a Miscellaneous Civil case falling within the ambit and scope of any other application of civil nature, not falling under any of the specified categories in terms of sub-rule 8 of Rule 10 of Chapter 2 of Rules of 2008. In view of the above   discussion, its hereby rejected. Accordingly, the present petition is hereby dismissed with liberty to the petitioner to file miscellaneous civil case in terms of sub-rule 8 of Rules of 2008.

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Judgement Reviewed By- Parvathy P.V.

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