Case BriefsForeign Courts

Court of Appeal of the Democratic Socialist Republic of Sri Lanka: A Division Bench of K.K. Wickremasinghe and K. Priyantha Fernando, JJ., dismissed an appeal filed to set aside the judgment of the High Court.

The prosecutrix had testified that, the incidents had taken place about two years prior to testifying when she was in Grade 8 and the appellant had abused her for 5-6 times. The prosecutrix had narrated these incidents to her mother who took her to the police station and as per the prosecution evidence, the incident had taken place three months prior to making the police complaint. The JMO had testified that no injuries were found but the possibility of sexual abuse cannot be excluded as per the short history was given by the prosecutrix. The appellant had denied committing the offence and contended that he was being falsely implicated by his wife as he had caught her with her paramour. He further submitted that his wife lodged a complaint at the police station asking for the custody of the children and he had denied the same after which the wife had challenged him that she would send him to the prison and would take the custody of the children.

The counsel for the appellant AAL K. Kugaraja contended that the prosecution had failed to establish the date of offence to which the counsel for the respondent Sudarshana De Silva, submitted that the prosecutrix had clearly stated that the incident took place in the latter part of 2007. The accused-appellant had been indicted under three charges for committing Grave sexual abuse on his daughter, an offence punishable under Section 365B (2) (b) of the Penal Code, 1860 as amended. The Trial Court had convicted the accused-appellant and had sentenced him to 18 years of rigorous imprisonment along with fines aggrieved by which this appeal was filed.

The Court while dismissing the appeal explained that the Judgment of the High Court was well reasoned as when the victim is a small child and is abused by someone who is associated to him/her on a daily basis its nearly impossible to specify the exact same date of offence and also the evidence of the prosecution was corroborated by other witnesses as well and the High Court was satisfied with the trustworthiness of the evidence so there was no reason to disturb the findings of the trial court.[ Kurundukara Hakuruge Ariyadasa v. Attorney General, C.A. Case No: HCC-0384 of 2017, decided on 05-12-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Appellate Tribunal for Electricity (APTEL): A Coram of Justice Manjula Chellur (Chairperson) and S.D. Dubey, (Technical Member) allowed an appeal filed against an impugned order passed by the Central Electricity Regulatory Commission.

The counsel for the appellant Anand K. Ganesan, Swapna Seshadri,  Ashwin Ramanathan and Utkarsh Singh had submitted that in 2011 the transmission system in issue was not required for the Applicant/Appellant in view of the Appellant being unable to obtain the Consent for Establishment (CFE) from the Pollution Control Board. This non-issuance of the CFE was beyond the control of the Applicant/Appellant and therefore a force majeure under the Bulk Power Transmission Agreement was entered into between the parties and further a petition had been filed before the Central Commission seeking directions on the declaration of force majeure and also return on the bank guarantee retained by Powergrid. The Central commission had disposed of the petition holding that the Applicant/Appellant had acted bona fide aggrieved by which the Applicant/Appellant had preferred an appeal which was pending before this tribunal and they further submitted that the delay was not deliberate but on bona fide reasons. 

The Tribunal while allowing the appeal condoned the delay of 148 days and found that the reasoning assigned in the application explaining the delay in filing the Appeal was satisfactory. [PEL Power Ltd. v. CERC, IA No. 1763 of 2019, decided on 19-12-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench of L. Narayana Swamy, CJ and Jyotsna Rewal Dua, J., dismissed an application which was filed by the petitioners challenging an order dated 10-05-2016 given by the H.P. Administrative Tribunal, Shimla (Tribunal) whereby the T.A. was allowed and the termination against the respondent was quashed and set aside.

The respondent had been working as daily waged Chowkidar with the petitioners- Corporation and was posted at Sehral Depot of Forest Working Unit Kunihar under Forest Working Division, where theft of 229 of resin filled tins took place on the intervening night of 17th and 18th February, 1997 after which an enquiry was initiated against the respondent. The petitioners-Corporation had issued a show-cause notice to the respondent alleging that he had been willfully absent from duty on the intervening night of 17th and 18th February, 1997 following which the services of the respondent were dispensed. Being aggrieved by the order of termination the respondent had approached the Tribunal who had decided in favor of the respondent and thus the instant writ petition was filed by the petitioner.

The Court while dismissing the petition held that a person, who was working as a daily wager or on contract basis and if his services have been discontinued or terminated on the basis of any allegation of misconduct etc., the provisions of the Central Civil Services (Conduct) Rules, 1964 are not applicable to his case, however, even then the principles of natural justice are required to be followed and if an order was passed against a person without affording him an opportunity of hearing, it is in violation of natural justice. In addition, the petition needs to be dismissed on the ground of delay and laches because the writ was filed after three years of the order. [H.P. State Forest Development Corporation Ltd. v. Ishwar Dutt, 2019 SCC OnLine HP 2199, decided on 18-12-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Securities Appellate Tribunal (SAT): Coram of Justice Tarun Agarwala, (Presiding Officer), Justice M. T. Joshi (Judicial Member), and Dr C. K. G. Nair (Member) partly allowed an appeal filed by the appellant against an order of the Disciplinary Action Committee (DAC) of the National Stock Exchange of India Limited (NSE) whereby they rejected an application to review their earlier order dated 02-08-2018.

Through the impugned order, the appellant was fined with a monetary penalty of Rs 15 lakhs and with a suspension of trading membership of the appellant from all segments of NSE for 5 days. The NSE had conducted an inspection for the period from 1-01-2017 to 7-09-2017. They imposed a consolidated monetary penalty of Rs 50,000 for the minor violations and issued a show-cause notice asking as to why the penalty should not be imposed on them for the alleged violations. The stated violations were:-

  • Unexplained use of funds raised by pledging client securities with NBFCs and Banks to the tune of Rs 19.23 crores belonging to 515 clients.
  • Acceptance of deposits by offering fixed returns from more than 200 entities to the tune of Rs 21.56 crores and not reflecting such receipts of funds in the financial ledgers/ trial balance of the appellant.
  • Discrepancy in computation of net worth and misrepresentation of data submitted to the Exchange.

Because of the aforesaid violations, it was held that the appellant has failed to abide by the Code of Conduct for trading member prescribed under Regulation 4.5.1 and 4.5.2 of CM and F&O Segments relating to adherence to SEBI Code of Conduct and general principles of professionalism, adherence to trading principles, honesty and fairness.

Prakash Shah, Counsel for the appellant submitted that securities belonging to some clients were pledged with NBFCs, etc. because of margin shortfall from those clients. Appellant had enough liquid funds available with it to meet the full obligations. Allegation relating to accepting deposits from clients promising assured returns, too was not correct because it was short term unsecured loans taken from external sources to promote appellant’s proprietary arbitrage and ALGO trading business. Regarding the third allegation, it was submitted that a revised net worth certificate was produced which the DAC had noted in the impugned order and therefore no action should be taken. 

The counsel for the respondent, Nimay Dave, on the other hand, stated that the allegations against the appellant were serious as was clearly shown that funds to the tune of ` 19.23 crores were raised in excess of respective client’s obligation by pledging the securities belonging to those clients. More than 350 out of 515 clients did not have any obligation/ debit balance but still, their securities were pledged by the appellant. 

The Tribunal held that the magnitude of money involved was large in terms of acceptance of deposits to the tune of Rs 21.56 crores and non-settlement of funds belonging to 601 clients etc. However, since the appellant had complied with some of the directions issued by the DAC, the penalty imposed on the appellant was disproportionate with the facts and circumstances. However, the violations were not light enough to let off the appellants free as contended by them. They upheld the monetary penalty of Rs 15 lakh imposed on the appellant and modified the direction relating to suspension of the appellant from all segments of the exchange NSE for 5 days to that of a direction not to enroll or register any fresh clients for a period of one month. [KSBL Securities Ltd. v. National Stock Exchange of (India) Ltd., Appeal No. 471 of 2018, decided on 26-11-2019]

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A full bench of Priyantha Jayawardena, PC, Murdu N.B. Fernando, PC, and S. Thurairaja, PC, JJ., dismissed an appeal filed against an order of the High Court of Colombo, through his Power of Attorney holder, Wanigasuriyaarachige Don Sharan Mary Dolita to the Supreme Court.

The Accused-Appellant was employed as a General Cashier (Chief Cashier) at the Hilton Hotel, Colombo. Passengers who were departing through the Bandaranaike International Airport were supposed to pay an Embarkation Tax. The Hilton hotel pre-purchased the Embarkation Tax Tickets and provided them to their customers. The routine accounts verification found that, the cashier had not accounted for the said money of Rs 600,000 and when they investigated, it was found that the cashier had not reimbursed Rs 600,000   which was used to purchase the Embarkation Tax Tickets. The Hotel held an independent enquiry and found the Accused-Appellant guilty. The matter was referred to the Colombo Fraud Investigations Bureau; a case was filed against the Accused-Appellant, at the Colombo-Fort Magistrate’s Court on two counts under Section 391 of the Penal Code and two alternate counts under Section 386 of the Penal Code. The magistrate found him guilty on the first and third counts and sentenced him to one year imprisonment, aggrieved by which the Accused-Appellant had filed an appeal in the High Court and the High Court had affirmed the order of the Magistrate. Dissatisfied by which the instant appeal was made and the Supreme Court had asked to frame the grounds of appeal.

The Court while dismissing the appeal explained that the misappropriation of the Accused-Appellant has been proved beyond reasonable doubt and they do not find any in consideration of the grounds of appeal, hence there are no merits in the grounds of appeal. [Warnakulasuriya Michael Angelo Fernando v. Officer-in-Charge, SC Appeal 85 of 2014, decided on 13-11-2019]

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: L.T.B. Dehideniya, J., S. Thurairaja, PC, J. and E.A.G.R. Amarasekara, J., allowed an appeal concerning an order against the Provincial High Court of Balapitiya.

The Accused – Appellant was charged before the Magistrate Court on two counts punishable under Section 400 and 386 of the Penal Code respectively for committing the offences of cheating and misappropriation of the sum of Rs 80,000. The Magistrate found the Accused-Appellant guilty on first and second counts and imposed Rs 5000 fine in-default 2 months Rigorous Imprisonment and 2 years Rigorous Imprisonment for the first count and 2 years rigorous imprisonment for the second count. The High Court Judges hearing the arguments found that, the Accused-Appellant not guilty on the 2nd count and acquitted him. Being dissatisfied with the order of the High Court Judge the Accused- Appellant preferred this appeal to the Supreme Court.

The Court while allowing the appeal explained that it was mandatory for the Judge to analyse the entire evidence before the Court and to find whether the ingredients are proved beyond a reasonable doubt. But, in this case, neither the Magistrate nor the High Court Judge had followed the basic evaluation of facts and standard of proof. It is also noted that both the Magistrate and High Court Judge had not properly analyzed the dock statement, thus there was no case proved against the accused-appellant beyond reasonable doubt hence finding the sentence bad in law. [Meegastennage Prince Gunawardena v. Attorney General of the Democratic Socialist Republic of Sri Lanka, SC Appeal No. 42 of 2014, decided on 07-11-2019]

Case BriefsSupreme Court

Supreme Court: The bench of Deepak Gupta and Surya Kant, JJ has held that a State Legislature cannot enact a law providing an appeal directly to the Supreme Court of India excluding the supervisory jurisdiction of the High Court.

The Court was hearing the issue relating to the enactment of the Chhattisgarh Rent Control Act, 2011 by the State of Chhattisgarh. Section 13 of the said Act provides that from any order of the Rent Controller an appeal lies to the Rent Control Tribunal nand in terms of Section 13(2), an appeal lies as a matter of right to the Supreme Court. When an appeal filed under Section 13(2) of the Act, came up for admission before the Supreme Court, it issued notice to the State of Chhattisgarh and the Attorney General for India regarding the legislative competence of making such provision.

Holding that the State cannot enact a legislation providing an appeal directly to the Supreme Court. That would amount to entrenching upon the jurisdiction of the Union, which the State Legislature does not have, the Court said,

“The powers with regard to jurisdiction and power of the Supreme Court vest with the Union and Parliament alone can enact a legislation in this regard. The power of the Supreme Court under Article 136 is always there.”

Noticing that the men who drafted the Act did not even consider the hierarchy of Courts, the Court said,

“As pointed above, the Rent Control Tribunal is headed by a retired Judge of the High Court or District Judge in the Super Time Scale or above. What was the rationale of making such an order appealable directly to the Supreme Court? We see no reason why the supervisory jurisdiction of the High Court should be excluded.”

The Court, hence, held that Section 13(2) of the Act, in so far as it provides an appeal directly to the Supreme Court, is totally illegal, ultra vires the Constitution and beyond the scope of the powers of the State Legislature and is accordingly struck down.

[HS Yadav v. Shakuntala Devi Parakh, 2019 SCC OnLine SC 1341, decided on 15.10.2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Securities Appellate Tribunal (SAT): Justice Tarun Agarwala (Presiding Officer) and Dr C.K.G. Nair (Member) dismissed an appeal by the appellant as it was devoid of any merit

The appellant, a private company, was a minority shareholder in New Delhi Television Ltd. (NDTV). With regard to non-disclosure of a tax demand under Clause 36 of the Equity Listing Agreement prescribed by the Stock Exchange (Listing Agreement) by the Company, the appellant made a complaint to the stock exchange as well as to SEBI based on which adjudication proceedings were initiated by the Adjudicating Officer under Sections 23-A and 23-E of the SEBI Act, 1992 read with 23-I of the Securities Contracts (Regulation) Act, 1956 (SCRA). The Adjudicating Officer imposed a penalty of Rs 2 crores on NDTV. The appellant filed an appeal against the order contending that the penalty should have been imposed on the Key Managerial Personnel of the Company who took a conscious decision of not disclosing the event under Clause 36 of the Listing Agreement, and not the whole company. The Tribunal directed the appellant to make a fresh representation to SEBI.

Based on this, a representation was filed which was rejected by the Whole Time Member (WTM), as they found that out of the nine violations only two violations formed the cause of grievance which was mentioned in the appeal filed before the Tribunal. The remaining seven violations alleged were beyond the scope of the directions of the Tribunal. On the two violations which were part of the appeal, the WTM held that the complaint of the appellant was considered and appropriate orders of the penalty were passed against the Company.

The Tribunal was of the opinion that the contentions by the appellants were misconceived. They held there were parallel proceedings for the same offence culminating into an order passed by the Adjudicating Officer under Section 15-A(b) of the SEBI Act as well as under Sections 23-A(a) and 23-E of the SCRA. Thus, their grievance was set at rest. Another contention of the appellant that the remaining seven alleged violations should also be considered as they were part of the appeal that was filed before the Tribunal was also misconceived.

The earlier order of the Tribunal clearly rejected the contention of the appellant for making the representation on issues other than the issue mentioned. The Tribunal rejected the modification application holding that permitting the appellant to make a representation on issues which are not the subject matter of appeal would amount to enlarging the scope of the representation beyond the grievances set out in the memo of appeal. Also, the additional affidavit on which reliance was placed was filed much after the disposal of the appellant’s appeal. Any additional affidavit filed after the disposal of the appeal cannot form part of the memo of appeal.[Quantum Securities (P) Ltd. v. Securities & Exchange Board of India, 2019 SCC OnLine SAT 142, decided on 07-08-2019]

Case BriefsHigh Courts

Uttaranchal High Court: Sudhanshu Dhulia, J. dismissed the instant writ petition where the petitioner sought mandamus to command respondent not to demolish the construction of his residential house.

The disputed facts were that the constructed house of the petitioner was part of Gaon Sabha earlier. Subsequently, the land came under jurisdiction of Nagar Panchayat, and thereafter the petitioner received a notice under Section 4 of the U.P. Public Premises (Eviction of Unauthorized Occupants) Act, 1972, to which he replied and ultimately the Prescribed Authority found the petitioner to be in unauthorized occupation and passed an order for his eviction. The order was challenged by the petitioner in an appeal before the District Judge, Haridwar.

Therefore the appeal of the petitioner was allowed by District Judge merely on technical grounds such as that the notice which was given to the petitioner under Section 4 of the U.P. Public Premises (Eviction of Unauthorized Occupants), 1972 did not elaborate or disclose the land. The trial court also gave finding in favor of the petitioner that the Additional Sub Divisional Magistrate who had passed the eviction order was not the Prescribed Authority and all the proceedings were beyond his jurisdiction.

The Court observed that the order passed earlier was not on the merits of the case hence the rights were not determined. Hence the petitioner was eventually asked to vacate the land which was disputed, aggrieved by which he filed the writ.

Tapan Singh, counsel for the petitioner submitted that there was already a judicial determination in the favour of the petitioner, as to his rights on the land and the fresh notices for eviction and demolition were alleged to be illegal. They basically relied upon the judgment passed by the District Judge.

The Court in such circumstances observed that, in the earlier case, the appeal of the petitioner was allowed on a technicality, such as the validity of the notice and the jurisdiction of the authority. There was no determination on the merit of the case. Hence the new proceedings were therefore not barred. But further, it stated that relief sought by the petitioner was out of the purview of the Court by the way of writ and thus the petitioner was directed to apply to a competent Civil Court.[Mansab Ali v. Nagar Panchayat Landhaura, 2019 SCC OnLine Utt 588, decided on 05-07-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Appellate Tribunal for SAFEMA, FEMA, PMLA, NDPS & PBPT Act: Justice Manmohan Singh (Chairman), dismissed an appeal filed by a company challenging a show-cause notice for retention of its property, on the ground that no hardship was caused to the appellant-company by the impugned notice.

In the present case, FIR was registered by CBI against Videocon International Electronics Limited under Sections 120-B and 420 of Penal Code, 1860 and Sections 7 and 13(2) of Prevention of Corruption Act, 1988. It is pertinent to note that appellant’s name was not mentioned in the said FIR. An Enforcement Case Information Report (ECIR) was recorded, but appellant was not even supplied a copy of that report. Search was conducted by Enforcement Directorate (ED) at the appellant’s offices and various documents were seized without even mentioning what those files pertained to. An application was filed by the ED under Section 17(4) of the Prevention of Money Laundering Act, 2002 seeking retention of the seized property. The said application was allowed by the Adjudicating Authority, and appellant was served a show-cause notice under Section 8(1) PMLA seeking his reply as to sources of procurement of property seized. Aggrieved by the said order, the instant appeal was filed.

Learned counsels Vinit Virmani and  R.K. Gosain appearing on behalf of the appellant, submitted that the impugned notice was issued on the basis of reason to believe and there was non-application of mind because the Authority did not even peruse the report of records seized. Further, the details of seizure documents were not in the manner prescribed. Since a proper list of documents had not been supplied to the appellant, it was not even aware of the contents of seized documents. It was further contended that the name of the appellant was not even mentioned in the FIR. Lastly, the seizure memo prepared was contrary to Rule 3(3)(A) of PMLA (Restoration of Property) Rules read with Rule 5 of PMLA (Forms, Search & Seizure, Etc.) Rules, 2005.

Counsels for the respondent, Nitesh Rana and A.R. Aditya, submitted that the appeal filed was not maintainable. They argued that before issuing the notice, if there are certain mistakes and defects or omissions, the notice already issued cannot be declared invalid at this stage, under Section 68 of PMLA. It was contended that the Adjudicating Authority did not pass an order, but had merely issued a show-cause notice. An appeal can be filed under Section 26(1) PMLA before this Tribunal only against an order of the Adjudicating Authority which has been passed under Section 8(4) of PMLA. Further, if an appeal is allowed against every procedural act of the Adjudicating Authority, as is the case of appellant, it would lead to multiplicity of proceedings. Respondent’s counsels admitted that a thirty-day notice, as mandated under Section 8 PMLA, was not given prior to issuance of show-cause notice. But he submitted that it was a curable defect under Section 68 PMLA, and that appellant could still be given 30 days to file a reply to the notice.

The Tribunal placed reliance on Farida Begum Biswas v. UOI, 2015 SCC OnLine Del 11834 where it was held that “Any person aggrieved by an order made by the Adjudicating Authority under Section 8 of PMLA can avail the remedy of appeal under Section 26 of PMLA to the Appellate Tribunal” It was opined that an appeal under Section 26 PMLA may or may not be maintainable. An appeal before PMLA may be maintainable in exceptional circumstances such as great hardship being caused to a party, abuse of the law, injustice, irreparable loss and great prejudice to party concerned. Thus, maintainability as an issue could only be decided on the facts and circumstances of each case.

It was noted that in the present case, the respondent had merely seized two files containing papers, and the appellants were entitled to receive copies of the same under Section 21(2) PMLA at the appropriate time. Therefore, no hardship was being caused to the appellant if the objections raised by it would be decided by the Adjudicating Authority within a time-bound manner. Moreover, appellant always had the remedy to challenge the Authority’s order in appeal after the retention order under Section 17(4) PMLA is passed.

In view of the above, the present appeal was dismissed.[Pacific Capital Services (P) Ltd v. Deputy Director, Directorate of Enforcement, Mumbai, 2019 SCC OnLine ATPMLA 26, decided on 30-05-2019]

Hot Off The PressNews

As reported by TOI, London High Court allows tycoon Vijay Mallya to appeal against his extradition order as no prima facie case is made out against him.

Of the five arguments made by Mallya’s lawyer, judges accepted only one — that no prima facie case of fraud and money laundering was made out against the Vijay Mallya.

Background:

A Single Judge Bench comprising of Senior District Judge (the Chief Magistrate) Emma Arbuthnot accepted the Government of India’s (GoI) extradition request for tycoon Vijay Mallya to face trial on charges of fraud and money laundering.

The Court considered the vast evidence placed on record by GoI and relying on the case of Devani v. Republic of Kenya, [2015] EWHC 3535 opined that there was a prima facie case that the funds loaned by Indian banks to Mallya were misused. A number of email trails were relied on to rule that he had misrepresented his net worth to the banks.

It was further held that there was a prima facie case of a conspiracy to defraud which involved not just the Kingfisher Airlines executives but also some bankers. There was clear evidence of misapplication of loan funds and thus there was a prima facie case of conspiracy to launder money was found against Mallya. [Govt. of India v. Vijay Mallya, decided on 10-12-2018]

Also Read:

Sajid Javid the UK Home Secretary signed the extradition order of Vijay Mallya on 04-02-2019.


[Source: ToI]

Case BriefsHigh Courts

Punjab and Haryana High Court:  Arvind Singh Sangwan, J. allowed the application for the refund of the fees on the ground that the matter was resolved between the parties.

An appeal was filed by the appellant-plaintiff against the order passed by the Additional Civil Judge (Senior Division), Faridabad where the suit for specific performance filed by the appellant was dismissed.

Rakesh Kumar Sharma, counsel for the applicant/appellant submitted that the appellant does not wish to pursue the appeal which was filed for the specific performance as the dispute between the parties had been resolved amicably.The applicant/appellant further prayed for the refund of the court fee.  Reliance was placed upon the decision of Division Bench of the Karnataka High Court in the case of A. Sreeramaiah v. South Indian Bank Ltd., 2006 SCC Online Kar 563 in which it was held that the matter being resolved by the parties amicably, amongst themselves without the intervention of the court, the court fees should be refunded.

In the above-mentioned case, the court held that the object behind Section 89 of the Civil Procedure Code, 1908 is to encourage the parties to arrive at the settlement. It is not important that the parties are referred to the four methods but if parties themselves at the earliest stage before the court come to the settlement, it will be considered that the object of Section 89 is achieved. The court further held that “No party should be discriminated in the matter of refund of Court Fees mainly on the ground that they have settled the dispute at the earliest stage before the court without recourse to any of the methods mentioned under Section 89 of the Civil Procedure Code, 1908.” Thus, the court directed the refund of the court fees appended with the appeal to the appellant. [Suresh Kumar Gupta v. State of Punjab, 2019 SCC OnLine P&H 660, decided on 30-5-2019]

Case BriefsHigh Courts

Gauhati High Court: Rumi Kumari Phukan, J. dismissed an application seeking leave to appeal against an Assistant Sessions Judge’s order of acquittal, holding that the forum for preferring such an appeal would be the Court of Sessions Judge and not the High Court. 

The petitioner (herein) in the instant case alleged before the trial court that the accused persons had forcefully kidnapped his daughter while she was returning from college. She was also kept confined by them. As a result, the petitioner registered complaint under Section 366 read with Section 34 of Penal Code, 1860. Learned Assistant Sessions Judge acquitted all the accused persons. Aggrieved by this order of acquittal the petitioner preferred the present application under Section 378(3) of Code of Criminal Procedure, 1973 seeking leave to file an appeal against the acquittal order.

The counsel for the petitioner, A.T. Sarkar, placed reliance upon the decision rendered in Satyapal Singh v. State of Madhya Pradesh, (2015) 15 SCC 613, while preferring appeal under 378(3) of CrPC. He contended, “even though the victim has a right to prefer an appeal against the order of acquittal u/s 372 CrPC but same can be filed only after obtaining leave of the Court as required under sub-section 3 of Section 378 CrPC.” 

The Court after perusing the legal provisions and pronouncements observed, “it appears that there is a confusion in the mind of the petitioner that he has to seek for leave to prefer the appeal in view of the decision in Satypal Singh case.” It was further observed, “As the appeal sought to be preferred against the order of the learned Assistant Sessions Judge so the appeal will lie to the Court of learned Sessions Judge.” Thus, the Court taking into consideration the bona fide nature of application by quoting the provision under Section 378(3) of CrPC, opined that the petitioner was not debarred to prefer the appeal to which he was entitled under the statute. The Court held, “the petitioner herein being the informant has a right to prefer an appeal u/s 372 (proviso) CrPC and he being the informant in the GR Case he cannot be equated as complainant within the purview of Section 378 (3) of CrPC and no leave is required to prefer such appeal.”

In light of the above, the Court dismissed the instant appeal but granted him liberty to prefer an appeal in the Court of concerned Sessions Judge.[Akhtar Mirza v. State of Assam, 2019 SCC OnLine Gau 2295, decided on 14-05-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Securities Appellate Tribunal (SAT), Mumbai : The Bench of Tarun Agarwala, J. (Presiding Officer) and C.K.G. Nair (Member) and M.T. Joshi, J., (Judicial Member) allowed the appeal filed questioning the veracity and legality of the order passed by the Disciplinary Action Committee of the National Stock Exchange of India Limited by which the appellant who is a broker was expelled from the membership of the NSE.

The appellant filed a review application on 27-02-108, and the review application was rejected. Prakash Shah, the counsel for the appellant, had put forward Clause 17 of the NSE Rules which provides a provision for reconsideration/review of its orders. It states that “according to the provisions of the Securities Contracts (Regulation) Rules, 1957 the relevant authority may of its own motion or on appeal by the trading member concerned within 90 days from the date of communication of decision of the relevant authority to the member reconsider and may rescind, revoke or modify its resolution… In a like manner, the relevant authority may rescind, revoke or modify its resolution expelling or suspending any trading member.” The applicant further stated that two boxes were placed before the DAC. In one box it was written ‘Review Rejected’ and in the other box it was written ‘Review Accepted’. The DAC ticked the box which contained the message ‘Review Rejected’ without any application of mind.

The Tribunal held that review application was required to be dealt after giving an opportunity of hearing to the appellant which in the instant case was not done. It was also opined that a reasoned and speaking order should have been passed by the DAC. There was a total absence of expression or opinion giving reasons for rejecting the review application. The impugned order was, thus, violative of Article 14 of the Constitution of India and cannot be sustained. The Tribunal quashed the review order and remitted the matter again to the DAC to decide the review application afresh after giving an opportunity of hearing the applicant. The appeal was thus allowed. [CPR Capital Services Ltd. v. NSE Ltd., 2019 SCC OnLine SAT 27, decided on 09-05-2019]

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J. allowed a revision petition and set aside the order of the Appellate Court whereby it had dismissed the appeal filed by the petitioner (husband) on the ground that he failed to deposit the entire arrears of maintenance despite several opportunities.

The husband was directed by the trial court to pay a monthly maintenance amount of Rs 35,000 to his wife. He, however, failed to pay the amount and coercive steps were taken by the trial court. Challenging the said order, the husband filed an appeal before the Appellate Court which was dismissed by the impugned order.

Mani Mittal and Pratush Mittal, Advocates, appeared for the husband before the High Court. Per contra, the wife was represented by Bharti Sharma and S.K. Sharma, Advocates.

The High Court noted that the difference of opinions on the subject — as was evident from the decisions rendered by Single Judges in Rajeev Preenja v. Sarika, 2009 SCC OnLine Del 458 — attained finality by a decision of the Division Bench in Sabina Sahdev v. Vidur Sahdev, 2018 SCC OnLine Del 9747. In Sabina Sahdev Case, it was held that “appeal or revision cannot be dismissed solely on the ground of failure to pre-deposit the maintenance amount and the same would have been decided on merits.” Accordingly, the Court held in the present case that the Appellate Court took a contrary view which was not sustainable. Therefore, the impugned order was set aside and the appeal was restored to its original number. [Sourav Sharma v. Neetu Sharma, 2019 SCC OnLine Del 8480, decided on 14-05-2019]

Case BriefsForeign Courts

Supreme Court of the United Kingdom: A Bench of Lady Hale, President and Lord Reed, Deputy President and Lord Carnwath, Lord Llyoyd-Jones and Lady Arden allowed an appeal filed against the Judgment of Northern Ireland Court of Appeal concerning a stay granted on the proceedings for a claim of damages under Section 8 of the Human Rights Act, 1998.

The appellant’s son, Pearse Jordan, was shot and killed by a member of Royal Ulster Constabulary in November, 1992. His father, Hugh Jordan, made an application to the European Court of Human Rights complaining that the failure to carry out a prompt and effective investigation into his son’s death. He sought a declaration that the Coroner and Police Service of Northern  Ireland had been responsible for delay in the commencement of the inquest in violation of his rights under Article 2 of the European Convention on Human Rights together with awards of damages under Article 8 of the Human Rights Act. Subsequently, the proceedings were taken over by his wife, the appellant, following his deteriorating health.

The delays in the investigation into Pearse Jordan’s death, and the repeated litigation which has characterised that process, are a common feature of what has come to be known as “legacy” cases: that is to say, cases concerning deaths occurring in Northern Ireland during the “Troubles”. In his recent judgment, Hughes’ Application for Judicial Review, In re, [2018] NIQB 30, Sir Paul Girvan found that there was a systematic delay in these cases, arising from a lack of resources to fund inquests of the length, complexity and contentiousness involved.

The Court Appeal, after considering the provisions of the Human Rights Act, laid down a general rule that claims of the present kind could not be brought before the conclusion of an inquest, and that any claims which had been brought before that stage should be stayed until then. This was, however, clarified by the Court of Appeal in a subsequent decision in McCord’s Application for Judicial review, In re, unreported, 18-1-2019, which judgment appears to confine the general rule prescribed in the present case to those cases where the only outstanding issue is damages and where an inquest can be expected to begin within the near future, if not already underway.

The present appeal was brought against the Judgment of the Court of Appeal staying the proceedings brought by Hugh Jordan until the completion of inquest. The Supreme Court was of the view that the appeal ought to be allowed. It was discussed that a stay on proceedings can be ordered in appropriate circumstances even n cases brought by persons claiming a violation of their Convention rights, however, regard must be had to three important aspects of the Convention rights:

(a) Rights that are practical and effective: Convention rights must be applied in a way which renders them practical and effective, not theoretical and illusory. The effectiveness of the right under article 2 to have an investigation into a death begin promptly and proceed with reasonable expedition could be gravely weakened if there were a general practice of staying proceedings seeking to secure the prompt holding of an inquest, typically by obtaining a mandatory order or a declaration.

(b) Determination within a reasonable time: The staying of proceedings will be unlawful if it results in a breach of the “reasonable time” guarantee in Article 6 of the Convention. That would be a real possibility in some cases if stays until after the completion of an inquest were ordered as a general rule. That right under Article 6 is distinct from Article 2.

(c) Proportionality of restrictions on access to the Courts: Since a stay of proceedings prevents a claim from being pursued so long as it remains in place, it engages another aspect of Article 6 of the Convention, namely the guarantee of an effective right of access to a court. That exercise requires consideration of the circumstances of the individual case before the court.

The Supreme Court observed: “There is no doubt that there may be cases in which it is proportionate to impose a stay on a claim for damages in a legacy case, weighing the relevant factors for and against it. There is equally no doubt that there may be cases in which, weighing those factors, a stay is not proportionate. Since the relevant factors can differ in nature and weight from one case to another, it follows that courts should carry out the necessary balancing exercise in the individual case. A virtually automatic rule requiring all such claims to be stayed until after the inquest, regardless of their individual circumstances, would not comply with that requirement, and in addition, as previously explained, would result in breaches of the reasonable time requirement of Article 6.”

It was held that the decision of the Court of Appeal was not consistent with the foregoing principles. It did not involve an assessment of proportionality. It was also stated that it is uncertain whether the court would have ordered the stay if such an assessment had been conducted, particularly if Hugh Jordan’s ill health had been drawn to its attention. In such circumstances, the appeal was allowed. [Hugh Jordan’s Application for Judicial Review, In re, [2019] UKSC 9, dated 06-03-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: The Bench of Surya Kant, C.J. and Sandeep Sharma, J. disposed of a petition with a direction to Debts Recovery Tribunal (DRT-I) to supply a copy of the order so as to enable the petitioner to file an appeal before Debts Recovery Appellate Tribunal (DRAT).

In the present case the grievance of the petitioner was that the copy of the order dated 20-04-2019 by the Debts Recovery Tribunal-I, Chandigarh was not supplied to the petitioner where the same was appealable. But since the copy was not provided, therefore no appeal could be filed unless a copy of the order is supplied.

The Court considering the situation of the petitioner sympathetically allowed the petitioner to move an application before DRT-I within a day or a two with a prayer to order status quo ante for a period of ten days so as to enable him to file an appeal before DRAT meanwhile.[Shivalik Fibres (P) Ltd. v. Punjab National Bank, 2019 SCC OnLine HP 543, decided on 24-04-2019]

Case BriefsForeign Courts

Pakistan Supreme Court: The Bench of Gulzar Ahmed,  Faisal Arab and Ijaz UL Ahsan, JJ., dismissed the petition filed against a Judgment of the Lahore High Court through which the appeal filed by the petitioner regarding the termination of his services was dismissed.

The facts of the case were that the petitioner was appointed as an ECG Technician in District Headquarters Hospital, Rawalpindi in 2005 on a contract basis. In 2009, his services were terminated. He challenged his termination through a representation which was not decided. He, therefore, approached the High Court in its constitutional jurisdiction. The High Court directed the respondents to decide the petitioner’s representation. This was dismissed by the departmental authority. The petitioner challenged the said order which was allowed. The respondents, feeling aggrieved, challenged the said judgment through two separate Intra Court Appeals which were allowed; the above facts raised the current contention. The Counsel for the petitioner, Sardar Abdul Raziq Khan and Syed Rafaqat Hussain Shah submitted that the Division Bench of the High Court fell in error in reversing the findings of the Single Judge in a mechanical manner, ICA filed by the Rawalpindi Medical College , which was neither a party to the proceedings nor directly aggrieved of the order, was not competent and the ICA filed by the Government of Punjab was barred by time and the Division Bench erred in law in entertaining the appeals. The respondents defended this by raising the point of law that if two appeals against the same impugned judgment are filed, one of which is within time, the other appeal should also be entertained and decided on merit rather than being dismissed on technical grounds.

The Court held that the appeal filed by the RMC was within time and even if the appeal filed by the Government of Punjab was barred by time, the Division Bench had a legal basis and lawful justification to entertain and decide both appeals on merits. Further, the Court found that the order of petitioner’s appointment was void and no period of limitation runs against a void order. The second issue that was considered was that the dispute between the parties related to contract employment. The Court stated that it is settled law that a contract employee is debarred from approaching the High Court in its constitutional jurisdiction. The only remedy available to a contract employee is to file a suit for damages alleging breach of contract or failure to extend the contract. Therefore, it was held that the petitioner approached the wrong forum in the first place and the Single Judge had exceeded his jurisdiction by interfering in a purely contractual matter. The appeal was thus dismissed. [Qazi Munir Ahmed v. Rawalpindi Medical College and Allied Hospital, 2019 SCC OnLine Pak SC 3, Order dated 06-03-2019]

Case BriefsHigh Courts

Bombay High Court: V.M. Deshpande, J., quashed the trial court’s Judgment convicting the applicant herein for the offences punishable under Sections 279 (rash driving or riding on a public way) and 304-A (causing death by negligence) IPC. The order of the Ad-hoc Additional Sessions Judge was also set aside whereby he confirmed the trial court’s Judgment.

As per the prosecution, the applicant, a driver with Maharashtra State Road Transport Corporation, was driving the offending bus which knocked down a 6-year old girl. The incident was reported, and the applicant was tried and convicted as aforesaid. He challenged his conviction but the appeal was dismissed by the Ad-hoc Additional Sessions Judge. Aggrieved thereby, the applicant filed the present revision application. His defence throughout was that he was not driving the offending bus at the time of the incident.

The High Court stated: “It was open for the prosecution to obtain the relevant record from the depot to which the applicant was attached, to show that at the relevant time the applicant was driving the offending vehicle. Further, it was obligatory on the part of the prosecution to prove those documents. In the present case, that has not been done. On the contrary, the learned lower appellate Court, it appears that, dismissed the appeal on the basis of unproved documents.” In the Court’s opinion, the evidence available was not sufficient to conclusively prove that the applicant was driving the offending bus. He was found entitled to benefit of doubt. Resultantly, the Court quashed his conviction and also set aside the First Appellate Court’s order mentioned above. [Sudhir v. State of Maharashtra, 2019 SCC OnLine Bom 558, decided on 02-04-2019]

Case BriefsSupreme Court

Supreme Court: Reminding the Courts of the scope of their powers, the bench of Abhay Manohar Sapre and Dinesh Maheshwari, JJ has said:

“While considering the case of discharge sought immediately after the charge­sheet is filed, the Court cannot become an Appellate Court and start appreciating the evidence by finding out inconsistency in the statements of the witnesses.”

Background of the case:

  • An Inspector of Police and Sub-­inspector of Police were prosecuted for commission of the offences punishable under Section 7 read with Section 13(1)(d) of the Prevention of Corruption Act.
  • On charge­sheet being filed by the State Prosecuting Agency against the respondents after obtaining necessary sanction as required in law, both of them filed applications under Section 227 of the Cr.P.C. in the Court of Special Judge and Chief Judicial Magistrate.
  • The Chief Judicial Magistrate allowed the applications and discharged them from the case.
  • State approached the High Court and the High Court dismissed the revisions and affirmed the order of the Chief Judicial Magistrate, giving rise to filing of these appeals by the State by way of special leave in this Court.

When the matter reached Supreme Court, it had to decide whether the Courts below were   justified in allowing the discharge applications filed by the respondents under Section 227 of the Cr. P.C. Stating that the Court the High Court acted like an Appellate Court than as a Revisionary Court as if it was hearing the appeal against the final verdict of the Special Court, the Court said:

“consideration of the record for discharge purpose is one thing and the consideration of the record while deciding the appeal by the Appellate Court is another thing.”

The Court, hence, set aside the impugned order, dismissed the applications filed by the respondents under Section 227 of the Cr.P.C. and remanded the case to the Special Judge/CJM for its trial on merits in accordance with law.

[State v. J. Doraiswamy, 2019 SCC OnLine SC 338, decided on 07.03.2019]