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Convict not entitled to remission while undergoing sentence in default of payment of fine: Delhi HC

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Delhi HC

It has to be said before stating anything else that in a significant development with far reaching consequences affecting convicts, the Delhi High Court has just recently in a well-articulated, well-reasoned, well-analysed and well-substantiated judgment titled Virender vs State (GNCT of Delhi) that was reserved on April 12, 2021 and then finally delivered on July 6, 2021 in W.P.(CRL.) 798/2021 held that a convict is not entitled to remission of sentence while he is undergoing sentence in default of payment of fine under the scheme of Delhi Prison Rules. It must be mentioned here that a Single Judge Bench comprising of Ms Justice Mukta Gupta of Delhi High Court also made it clear that the grant of emergency parole for release of prisoners as per the Delhi Government’s notification, was in the nature of remission of sentence being undergone and not mere suspension of the sentence as in case of parole. This significant observation came while Ms Justice Mukta Gupta was dealing with a petition filed by a convict seeking release in view of completion of his substantive sentence and sentence in default of payment of fine.

To start with, the Single Judge Bench of Ms Justice Mukta Gupta of Delhi High Court first and foremost unfolds the purpose of petition stating in para 1 that, “By this petition, the petitioner seeks a writ of mandamus directing the respondent to release the petitioner forthwith in view of completion of his substantive sentence as well as sentence in default of payment of fine.”

While elaborating on the conviction of the petitioner, the Bench then puts forth in para 2 that, “The petitioner was convicted for offences punishable under Section 363 IPC and Section 4 of Protection of Children from Sexual Offences Act, 2012 (in short, ‘POCSO Act’) vide the judgment dated 24th October, 2019 and sentenced to undergo rigorous imprisonment for 7 years and a fine of ₹50,000/-, in default whereof, to undergo simple imprisonment for 2 months for offence punishable under Section 4 of the POCSO Act and rigorous imprisonment for a period of 1 year for offence punishable under Section 363 IPC vide order dated 25th October, 2019.”

While elaborating further in detail, the Bench then discloses in para 3 that, “The petitioner was in custody when due to Covid-19, the Delhi Government issued a notification dated 23rd March, 2020, constituting a High Powered Committee which decided to release prisoners on emergency parole and pursuant thereof, the petitioner was released on emergency parole for a period of eight weeks on 22nd August, 2020 which was continued from time to time. Vide the order of the Home Department, Govt. of NCT dated 8 th January, 2021, all convicts released on emergency parole were directed to surrender to custody as the emergency parole was not extended further. Thus the petitioner surrendered on 21st February, 2021. As per the petitioner, since the notification of the Govt. of NCT releasing the prisoners on emergency parole noted that the period of parole will be counted as period undergone, petitioner’s substantive sentence completed on 27th December, 2020 and since the petitioner was on emergency parole thereafter also, according to the petitioner, he was undergoing sentence in default of payment of fine and when the petitioner surrendered on 21st February, 2021, he had undergone substantial sentence in default of fine and he ought to have been released on 27th February, 2021 having undergone simple imprisonment for a period of 2 months in default of payment of fine as well. Since the Superintendent, Tihar Jail failed to release the petitioner on 28th February, 2021, the petitioner preferred the present petition which was got drafted on 10th March, 2021. However, the Superintendent Jail took his own time and kept the petition pending which was finally listed before this Court on 9th April, 2021 when this Court issued notice to the Director General (Prisons) and also sought his presence through video conferencing.”

While elaborating on the grievance of the petitioner, the Bench then lays bare in para 4 that, “Grievance of the petitioner in the present petition is two-fold. Firstly; that his petition challenging the inaction of the Superintendent Jail was not got listed and deliberately kept back by the Superintendent jail so as to frustrate the filing of the petition and Secondly; since the petitioner had undergone substantial sentence in default of payment of fine as well while on emergency parole, the petitioner ought to have been released on 28th February, 2021 immediately after his surrender. The petitioner also has a grievance that though every jail petition, as per the Rules, is required to be accompanied by the nominal roll, the present petition was not even accompanied by the nominal roll.”

To be sure, the Bench then reveals in para 5 that, “A reply affidavit has been filed by the Director General (Prisons), Tihar as also the nominal roll of the petitioner. At the outset, the Director General (Prisons) states that when the petition was filed by the petitioner claiming that he was entitled to be released, the Superintendent Jail looked into the petition and found that there was no application made in this regard to the Prison Department and before forwarding the petition to this Court, desired to look into the matter at his own level so that if there was any error, the same could be rectified and in this regard, also took legal opinion. After the legal opinion was received that the in default sentence cannot be said to have been undergone, the present petition was forwarded to this Court.”

To state the ostensible, the Bench then points out in para 6 that, “From the affidavit filed, it is evident that though there was no mala fide in not forwarding the petition to this Court immediately, however, there was certainly an error on the part of the Superintendent Jail who could not have kept the petition pending with him and ought to have filed the same as expeditiously as possible so that the petitioner’s grievance could be redressed. As regards the nominal roll is concerned, the Jail Superintendents are directed to be careful and will ensure that all petitions sent to this Court are duly accompanied by the copy of the nominal roll of the petitioner/applicant. Thus, the only issue which needs consideration in the present petition is whether the period spent by the petitioner on emergency parole outside can be counted not only towards the substantive sentence undergone but also towards the sentence undergone in default of payment of fine.”

On the one hand, the Bench mentions in para 8 that, “Learned counsel for the petitioner relies upon the decision in Santosh Manohar Deshmukh Vs. State of Maharashtra and Anr. Crl. Writ Petition Stamp No. 1690 of 2020 decided on 15th September, 2020, wherein, the Bombay High Court held that the imprisonment required to be undergone in default of payment of fine is a penalty incurred for non-payment of fine and cannot be said to be a sentence imposed under MCOCA. Considering the fact that the petitioner therein was unable to pay fine and his family was pushed to abject poverty during his incarceration; forcing his mother to do manual labour, the Court held that the petitioner has already undergone 14 years of substantive sentence and also almost 4 years 8 months’ imprisonment in default of payment of fine and thus, in the interest of justice, deemed it appropriate to issue directions to the respondents therein to consider releasing of the petitioner therein on Covid parole on filing of a formal application initially for a period of 45 days in terms of the decision of the High Powered Committee.”

On the other hand, the Bench then mentions in para 9 that, “Learned counsel for the respondent, however, relying upon the Proviso to Sub-Section 5 of Section 432 CrPC contends that no remission can be granted in case the prisoner is undergoing sentence in default of payment of fine and hence, the emergency parole granted to the petitioner being akin to a remission, the petitioner could have utilized the said period only to undergo the substantive sentence and not against the sentence in default of payment of fine. Reliance is also placed on Chapter XVIII of the Delhi Prison Rules, 2018 which came into force on 1st January, 2019 dealing with the Remissions and also on Explanations to Rules 730, 756, 1176 and 1185 of the Delhi Prison Rules, 2018. It is stated that since the petitioner was not entitled to any remission while undergoing the sentence in default of payment of fine, the period on emergency parole cannot be counted as undergoing the in default sentence.”

To put things in perspective, the Bench then enunciates in para 10 that, “Before proceeding further, it would be appropriate to note the notification of the Home Department, Govt. of NCT of Delhi dated 27th March, 2020 in F.No.18/191/2015/HG/1428-1438 pursuant whereto the petitioner was released on emergency parole as under:-

‘Whereas, Hon’ble Supreme Court of India, vide its order dated 16.03.2020 in SMWP(C) No. 1/2020, has observed that there is an imminent need to take steps on an urgent basis to prevent the contagion of COVID-19 in our prisons:

2. And Whereas, Government. of National Capital Territory of Delhi has initiated various measures including the notification of Delhi Epidemic Disease COVID-1 9 Regulations 2020 under the Epidemic Disease Act 1897 for prevention and containment of Corona Virus pandemic;

3. Now, therefore, the Government of National Capital Territory of Delhi, keeping in mind the emergent situation of threat of COVID-19 epidemic in Delhi Prisons and in exercise of powers conferred under Rule 1212 A (inserted in the main Rules ,Vide gazette Notification No F.18/191/2015/HG/ 1379-1392 dated 23.03.2020) of the Delhi Prisons Rules 1018. has decided to grant upto eight weeks emergency parole, which shall be counted towards the sentence of the prisoners.

4. The Government. has further decided to constitute a committee, to screen and recommend the cases of gram of emergency parole to the convicts. The committee consist of:-

1. DG(prisons) Chairman

2. Spl Secretary (Home) Member

3. DIG(prisons) Member

4. ADM (West) Member

5. Suptd Prison HQ Member

5. The following categories of convicts would be considered for grant of emergency parole by the above committee :-

(1) All convicts who are presently outside the prison either on furlough or an parole:-

Such convicts who are out of prison on furlough/parole would be granted eight weeks of emergency parole. The remaining portion of their on-going furlough/parole would be treated as suspended/lapsed on grant of emergency parole. The prisoners would now be required to report back to their respective jail on expiry of the emergency parole . Intimation to all such convicts in this regard would be ensured by the prison authorities.

(2) All convicts who have availed parole/furlough in the past :- Such convicts who have availed parole/ furlough in the past and have overall satisfactory conduct would be granted eight weeks of emergency parole on furnishing of personal bond.

(3) All convicts not falling under S No 1 or 2 above but otherwise eligible.

Such cases will also be considered by the Committee for appropriate orders.

TERMS AND CONDITIONS

1. All the convicts released on emergency parole will surrender themselves on expiry of the parole period as granted or on recall or any other condition as deemed fit.

2. All pending applications for grant of regular parole would be deemed to have been withdrawn in view of grant of emergency parole to the eligible convicts.

3. DG(Prisons) will cause to maintain a proper record of convicts released on emergency parole.

DELEGATION OF POWER

1. The powers to consider the cases for grant of emergency parole except those falling under Rule 1211 of the Delhi prison rules, 2018, on the recommendation of the committee constituted under para 4 is delegated to DG(prison) till 30.04.2020

CASES FALLING UNDER RULE 1211 OF DELHI PRISONS RULE

1. The cases of grant of emergency parole to the eligible convicts falling under Rule 1211, will be submitted to the Home Department, either individually or as a class, for appropriate orders.

Note : For the purposes of this order, it is hereby clarified that a ‘satisfactory conduct’ would mean that the convict has not indulged in any major misconduct during his incarceration in the last three years or during parole/ furlough in the past. Minor incidents of misconduct, if any, on the part of the convict may be ignored. However in exceptional cases, where the Superintendent feels that despite a major conduct on the part of the convict earlier, he has shown good signs of improvement and reformation in his behavior and his going out on emergency parole will not be detrimental to the interest of the society, he may recommend the name of such convict for grant of ‘Emergency Parole to the DG (Prison)’.”

As is quite palpable, the Bench then puts forth in para 11 that, “It is thus evident that the Govt. of NCT of Delhi vide order dated 27th March, 2020, considering the emergent situation caused due to Covid-19 and in exercise of the powers conferred under Rule 1212A of the Delhi Prison Rules decided to release certain categories of prisoners on emergency parole and that the period of emergency parole shall be counted towards the sentence of the prisoners. This period of emergency parole was extended from time to time and the order granting extensions, noted that the period of emergency parole shall be counted towards the sentence of the prisoners.”

Quite significantly, the Bench then while citing the relevant case law enunciates in para 12 that, “Supreme Court in the decision reported as 2017 (15) SCC 55 Ashfaq vs. State of Rajasthan brought out the distinction between ‘parole’ and ‘furlough’ as under:

“10. In the first instance, it would be necessary to understand the meaning and purpose of grant of parole. It would be better understood when considered in contrast with furlough. These terms have been legally defined and judicially explained by the Courts from time to time.

11. There is a subtle distinction between parole and furlough. A parole can be defined as conditional release of prisoners i.e. an early release of a prisoner, conditional on good behaviour and regular reporting to the authorities for a set period of time. It can also be defined as a form of conditional pardon by which the convict is released before the expiration of his term. Thus, the parole is granted for good behaviour on the condition that parolee regularly reports to a supervising officer for a specified period. Such a release of the prisoner on parole can also be temporarily on some basic grounds. In that eventuality, it is to be treated as mere suspension of the sentence for time being, keeping the quantum of sentence intact. Release on parole is designed to afford some relief to the prisoners in certain specified exigencies. Such paroles are normally granted in certain situations some of which may be as follows:

(i) a member of the prisoner’s family has died or is seriously ill or the prisoner himself is seriously ill; or

(ii) the marriage of the prisoner himself, his son, daughter, grandson, grand-daughter, brother, sister, sister’s son or daughter is to be celebrated; or

(iii) the temporary release of the prisoner is necessary for ploughing, sowing or harvesting or carrying on any other agricultural operation of his land or his father’s undivided land actually in possession of the prisoner; or

(iv) it is desirable to do so for any other sufficient cause;

(v) parole can be granted only after a portion of sentence is already served;

(vi) if conditions of parole are not abided by the parolee he may be returned to serve his sentence in prison, such conditions may be such as those of committing a new offence; and

(vii) parole may also be granted on the basis of aspects related to health of convict himself.

12. Many State Governments have formulated guidelines on parole in order to bring out objectivity in the decision making and to decide as to whether parole needs to be granted in a particular case or not. Such a decision in those cases is taken in accordance with the guidelines framed. Guidelines of some of the States stipulate two kinds of paroles, namely, custody parole and regular parole. ‘Custody parole’ is generally granted in emergent circumstances like:

(i) death of a family member;

(ii) marriage of a family member;

(iii) serious illness of a family member; or

(iv) any other emergent circumstances.

13. As far as ‘regular parole’ is concerned, it may be given in the following cases:

(i) serious illness of a family member;

(ii) critical conditions in the family on account of accident or death of a family member;

(iii) marriage of any member of the family of the convict;

(iv) delivery of a child by the wife of the convict if there is no other family member to take care of the spouse at home;

(v) serious damage to life or property of the family of the convict including damage caused by natural calamities;

(vi) to maintain family and social ties;

(vii) to pursue the filing of a special leave petition before this Court against a judgment delivered by the High Court convicting or upholding the conviction, as the case may be.

14. Furlough, on the other hand, is a brief release from the prison. It is conditional and is given in case of long term imprisonment. The period of sentence spent on furlough by the prisoners need not be undergone by him as is done in the case of parole. Furlough is granted as a good conduct remission.

15. A convict, literally speaking, must remain in jail for the period of sentence or for rest of his life in case he is a life convict. It is in this context that his release from jail for a short period has to be considered as an opportunity afforded to him not only to solve his personal and family problems but also to maintain his links with society. Convicts too must breathe fresh air for at least some time provided they maintain good conduct consistently during incarceration and show a tendency to reform themselves and become good citizens. Thus, redemption and rehabilitation of such prisoners for good of societies must receive due weightage while they are undergoing sentence of imprisonment.

16. This Court, through various pronouncements, has laid down the differences between parole and furlough, few of which are as under:

(i) Both parole and furlough are conditional release.

(ii) Parole can be granted in case of short term imprisonment whereas in furlough it is granted in case of long term imprisonment.

(iii) Duration of parole extends to one month whereas in the case of furlough it extends to fourteen days maximum.

(iv) Parole is granted by Divisional Commissioner and furlough is granted by the Deputy Inspector General of Prisons.

(v) For parole, specific reason is required, whereas furlough is meant for breaking the monotony of imprisonment.

(vi) The term of imprisonment is not included in the computation of the term of parole, whereas it is vice versa in furlough.

(vii) Parole can be granted number of times whereas there is limitation in the case of furlough.

(viii) Since furlough is not granted for any particular reason, it can be denied in the interest of the society.” (Emphasis supplied).”

Interestingly enough, the Bench then states in para 13 that, “Section 432 sub-section 5 Cr.P.C. reads as under:

“432 (5) The appropriate Government may, by general rules or special orders give directions as to the suspension of sentences and the conditions on which petitions should be presented and dealt with: Provided that in the case of any sentence (other than a sentence of fine) passed on a male person above the age of eighteen years, no such petition by the person sentenced or by any other person on his behalf shall be entertained, unless the person sentenced is in jail, and-

(a) where such petition is made by the person sentenced, it is presented through the officer in charge of the jail; or

(b) where such petition is made by any other person, it contains a declaration that the person sentenced is in jail.””

No less significant is what is then stated in para 14 that, “Relevant Rules of Delhi Prison Rules, 2018 read as under:

Rule 730. “The period of imprisonment to be undergone shall be reckoned from the date on which the sentence is passed, except in cases which fall under sections 31, 426 and 427 of the Code of Criminal Procedure, 1973, where the directions of the Court shall be followed. Explanation: In the case of a prisoner sentenced to imprisonment in default of fine, the period of imprisonment shall be reckoned from the day on which he was rearrested for failing to pay the fine imposed.”

Rule 756. Sentences awarded in default of payment of fine shall be calculated as follows:

(i) Sentences imposed in default of payment of fines cannot run concurrently.

Please read concluding on thedailyguardian.com

x x x x x x

(ix) A prisoner will not be given benefit of section 428 Cr.P.C. for the sentence in-lieu of fine. The sentence of fine shall not run concurrently with other sentences of fine.”

CHAPTER-XVIII

REMISSION

Rule 1169. Without prejudice to the provisions of Article 72 of the Constitution of India and the Section 432 of the Code, remission can be earned under the provisions of the Delhi Prisons Act, 2000, on the prisoner fulfilling the conditions required hereinafter. However, Remission is a privilege to a prisoner cannot be claimed as a right.

Rule 1170. Remission is a concession, which can be granted by the Authorities as provided in these rules. The appropriate Government reserves the right to debar/ withdraw any prisoner, or category of prisoners from the concession of remission. The remissions may be withdrawn or forfeited if the prisoner commits specified Jail offences or conditions prescribed in the relevant order of remitting the sentence.

Purpose

Rule 1171. Remission should be granted on the basis of an inmate’s overall good behavior during the stay in the Jail, willingness to take work while in custody, cooperation and help to the prison administration in prison management and general response to various institutional activities.

Note:- If any statute or the court in its order of sentence has denied the remission to the prisoner and thereby not specified the kind of remission to be denied then all kinds of remission will be denied.

Rule 1172. In the context of this chapter: I. ‘Prisoner’ means a convict and/ or includes a person committed to prison in default of furnishing security for maintaining peace or good behavior and also includes persons convicted by a Military Court.

II. ‘Sentence’ means a sentence as finally fixed on appeal or revision or otherwise, and includes an aggregate of more sentences than one and an order of imprisonment in default of furnishing security for maintaining peace or good behavior.

Kinds of Remission

Rule 1173. Remission will be of the following types:

A) Ordinary Remission

B) Annual Good Conduct Remission

C) Special Remission

D) Remission by Government Ordinary Remission

x x x x x x

Rule 1176. Non-Eligibility: The following types of prisoners will not be eligible for ordinary remission:

I. x x x x x x

II. Prisoners sentenced in default of payment of fine only.”

As a corollary, the Bench then most significantly observes in para 15 that, “Thus from the notification issued by the Government granting emergency parole it is evident that release was in the nature of remission as the sentence was being undergone and not mere suspension of sentence as in the case of parole. The rules clearly prescribe that a convict is not entitled to remission while undergoing sentence in default of payment of fine. Thus the contention of learned counsel for the petitioner that the petitioner had undergone substantial sentence in default of payment of fine while on emergency parole cannot be accepted.”

Now coming to the concluding paras of this notable judgment. Para 16 holds that, “Petition is dismissed.” It is then held in the final para 17 that, “Order be uploaded on the website of this Court.”

In summary, the sum and substance of this brief, brilliant and balanced judgment is that convict is not entitled to remission while undergoing sentence in default of payment of fine. All the courts and all the judges must always bear this in mind while ruling in similar such cases. This is the real crux of the matter of this noteworthy judgment delivered by a Single Judge Bench of the Apex Court comprising of Ms Justice Mukta Gupta of Delhi High Court. Very rightly so!

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Legally Speaking

MP HIGH COURT SEEKS DGP’S REPLY: DOES POLICE’S FAILURE TO COMMUNICATE FULL CRIMINAL ANTECEDENTS OF ACCUSED AMOUNTS TO MISCONDUCT, INTERFERENCE WITH JUSTICE?

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The Madhya Pradesh High Court in the case Kuldeep Dohare Versus the State of Madhya Pradesh observed, recently the Gwalior bench directed the Director General of Police, State of Madhya Pradesh to file an affidavit explaining as to whether non-communication of criminal antecedents of an Applicant or Accused to the Court is a minor misconduct or if it amounts to interference with the criminal justice dispensation system. Before the next date of hearing, the affidavit is to be filled.

The bench comprising of Justice G.S. Ahluwalia observed and remarked that the court was frequently finding that the police authorities were not sending the complete criminal antecedents, in spite of the circular issued by Police Headquarters.

It was observed that the police authorities did not send the criminal antecedents of the applicant. Furthermore, it is clear that it is a clear attempt to facilitate the applicant to obtain bail by projecting that he has no criminal antecedents. The issue raised is weather the conduct of police officers can be said to be a minor negligence or it is an interference with the criminal justice dispensation system?

In the present case, the court was dealing with a bail application moved by the accused applicant for offences punishable under section 307, Section 149, section 148, section 147, section 506, section 294, section 201. On an earlier hearing, the court had observed that even though the case diary did not reflect any criminal antecedents on the part of the Applicant. The impugned order passed by the lower court rejecting his bail application mentioned otherwise.

It was observed that a reply was sought by the court from the Superintendent of Police, District Bhind as to why the important information with regard to the criminal antecedents of the Applicant were withheld by the respective SHO. The SP informed the Court on the subsequent hearing that the SHO concerned as well as the Investigating Officer in the case were found guilty of misconduct and were fined with Rs. 2,000 and Rs. 5,000, respectively.

The Court observed that since the problem was stemming from different police stations. However, the DGP should file his reply regarding the prevailing situation-

Since in different police station, this situation is prevailing. Therefore, an affidavit is directed to be filled by the DGP, State of Madhya Pradesh as to whether non- communication of criminal antecedents of an applicant is a minor misconduct or it amounts to interfere with the criminal antecedents of justice dispensation system.

Accordingly, the affidavit needs to be filled within a period of 1 week, the matter would be heard next on 08.07.2022.

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Legally Speaking

HIGH COURT OF MADHYA PRADESH: SECTION 5 OF THE LIMITATION ACT APPLIES TO ARBITRATION REFERENCE UNDER NATIONAL HIGHWAY ACT, 1956

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The High Court of Madhya Pradesh in the case Ghanshyam Gupta v. State of Madhya Pradesh and Ors observed and stated that Section 5 of the Limitation Act would be applicable to reference to arbitration under the National Highways Act, 1956.

The Division Bench comprising of Justice Ravi Malimath and Justice Purushiandra Kumar Kaurav observed and reiterated that since no limitation is provided under Section 3G (5) of the National Highways Act. The bench stated that the provisions of Article 137 of the Schedule to the Limitation Act, 1963 would apply to such proceedings.

Therefore, the court held that the limitation period for filing an appeal against the decision of the competent authority before the arbitrator from the date of expiry of 90 days is three years from the decision of the competent authority.

FACTS OF THE CASE:

The petitioner, Mr. Ghanshyam Gupta was the landowner of the land which was acquired by the Respondent, Madhya Pradesh Road Development Corporation. Thereafter, the competent authority determined the quantum of compensation payable to the petitioner and passed an award to that effect on 30.07.2015.

The petitioner being dissatisfied with the quantum of compensation determined by the competent authority. On 04.12.2019, an appeal was filled by the petitioner before the arbitrator. The appeal was dismissed by the arbitrator as time-barred filed after the expiry of three years limitation period.

the petitioner filed a writ petition before the High Court, Aggrieved by the decision of the arbitrator.

Contentions Raised by the Parties:

It is stated that Section 5 of the Limitation Act is applicable to arbitration reference under Section 3G (5) of the National Highways Act, 1956.

It was observed that the petitioner was unaware of the availability of the remedy of appeal against the decision of the competent authority, the petitioner only after consulting his lawyer, that the petitioner came to know that he could seek enhancement. Further, there is a valid ground to condone the delay.

The submissions of the petitioner were countered by the Respondent on the following grounds:

Though, in the absence of a period of limitation for filing an appeal under Section 3G (5) of the Act of 1956, it was construed that the provisions of Article 137 of the Limitation Act would stand applicable.

It was stated that Article 137 provides for 3 years period, and the petitioner filed the appeal after a delay of 4 years.

COURT ANALYSIS:

The court observed and stated that since no limitation is provided under Section 3G (5) of the National Highways Act, the provisions of Article 137 of the Schedule to the Limitation Act would apply to such proceedings.

Therefore, the court held that the limitation period for filing an appeal against the decision of the competent authority before the arbitrator from the date of expiry of 90 days is three years from the decision of the competent authority.

The court observed that there is nothing in the National Highways Act that excludes the applicability of Section 5 of the Limitation Act. However, Section 5 of the Limitation Act would be applicable to reference to arbitration under the National Highways Act, 1956 and the arbitrator has the power to condone the delay against the award, in filing an appeal by the competent authority.

The court noted that the petitioner was not aware that an appeal could be filed against the decision of the Competent Authority and it is only after consulting his lawyer that the petitioner came aware of any such right, therefore, there is sufficient reason to condone the delay.

Accordingly, the application was allowed by the court and the court directed the arbitrator to decide the case of the petitioner on merit.

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KERALA HIGH COURT APPOINTS AMICUS CURIAE IN SARITHA NAIR’S PLEA; IS A STATEMENT RECORDED U/S 164 CRPC A PUBLIC DOCUMENT?

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The Kerala High Court in the case Saritha S. Nair v. Union of India & Anr observed and appointed an amicus curia to assist the court to decide the legal question of whether a statement recorded under Section 164 of the CrPC is a public document.

The bench comprising of Justice Kauser Edappagath appointed the amicus curiae, in the petition filled by Saritha S. Nair, the prime accused in the infamous solar panel scam seeking a direction to provide her with copies of the Section 164 statement given by Swapna Suresh, the accused in the gold smuggling case.

The court appointed Advocate K.K. Dheerendrakrishnan, as the amicus curiae in the case.

In the present case, it was observed that Saritha Nair is accused of having duped several influential people to the tune of 70 lakhs, by offering to install solar power units for them or by making them business partners and by receiving advance payments for the same.

Moreover, Swapna Suresh is accused of smuggling 30 kilograms of gold through diplomatic cargo dispatched to UAE Consulate at Thiruvananthapuram.

It was observed that when the petition came up for hearing, the counsel appearing for the petitioner, Advocate B.A Aloor appearing that the statement given by Swapna was a public document and therefore the petitioner was entitled to get a copy.

Further, Nair approached the Court apprehending that certain allegation may have been brought on record against her in the statement given by Suresh. It was prayed by Nair, that the c court allow her plea, directing the production of certified copies of the said document to her, failing which she would sustain an irreparable injury, the hardship and as well as physical and mental agony.

It was observed that the Nair had had initially moved the Principal District and Sessions Court of Ernakulam, with the same request, but this was denied. The court noted and adjourned the matter to July 11, while on a petition filed by the accuse, Saritha S. Nair in the solar scam cases, for seeking a directive to provide a copy of the statement given by Swapna Suresh, accused in the diplomatic gold smuggling case before a subordinate court.

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Legally Speaking

Supreme Court issues notice in an SLP; can section 156 (3) CRPC be invoked after failing to get desired relief in a civil suit?

It was observed that before the Calcutta High Court, it was contended by the accused that the allegations made in the application under Section 156(3) CrPC fails to make out any offence against them. Further, it was submitted that a frustrated unsuccessful litigant before the Civil Court has approached the Criminal Court and the Criminal Investigation.

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The Supreme Court in the case Usha Chakraborty vs State of West Bengal observed and issued a notice in a Special Leave Petition filled, raising an issue whether in a dispute essentially in a dispute of civil nature that can a person, after having failed to get the desired relief from a civil suit, invoke Section 156(3) of the Code of Criminal Procedure?

In the present case, an FIR was registered against the accused under Sections 323, Section 384, Section 406, Section 423, Section 467, Section 468, Section 420 and Section 120B of the Indian Penal Code, 1860 following an order passed by the Magistrate under Section 156(3) CrPC.

It was observed that before the Calcutta High Court, it was contended by the accused that the allegations made in the application under Section 156(3) CrPC fails to make out any offence against them. Further, it was submitted that a frustrated unsuccessful litigant before the Civil Court has approached the Criminal Court and the Criminal Investigation, which has commenced, is for the purposes of throttling them. The petition was dismissed by the High Court observing that the materials which have already been collected by the Investigating Agency, prima facie, make out a case for investigation. The issue raised before the court was weather the same would make out an offence after the investigation is concluded is absolutely at the end of the investigation to be analysed.

Therefore, challenging this order, one of the accused approached the Apex Court. However, It was submitted that the dispute is essentially of civil nature, for which the applicant in Section 156(3) CrPC petition filed a civil suit but having failed to get the desired relief, he invoked Section 156(3) CrPC.

The bench comprising of Justice Surya Kant and the Justice JB Pardiwala, while issuing notice also stayed further proceedings in FIR lodged against the accused.

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Legally Speaking

GAUHATI HIGH COURT QUASHES NO-CONFIDENCE MOTION AGAINST GRAM PANCHAYAT PRESIDENT CITING PARTICIPATION OF MEMBER DISQUALIFIED FOR HAVING THREE CHILDREN

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The Gauhati High Court in the case Jugitawali Pawe v State of Assam and 15 ors observed and quashed a resolution expressing no-confidence in the petitioner – the President of a Gram Panchayat, as a result of which she as removed from office. It was stated that it is as per the citing no compliance with Assam Panchayat Act, 1994, reading with Rule 62 of the Assam Panchayat (Constitution) Rules, 1995.

It was preferred by the petitioner to the materials available on record to argue that one of the members of the Gaon Panchayat, the respondent. The respondent voted against the petitioner and had given birth to her third child the previous year. Moreover, by virtue of Section 111(2)(a) of the Assam Panchayat Act, 1994, reading with Rule 62 of the Assam Panchayat (Constitution) Rules, 1995, the petitioner stood automatically disqualified on the date of voting. Following, which her vote was taken by passing No-confidence motion.

It was prayed by the petitioner in the plea for setting aside the impugned resolution and for issuance of a direction to restore his client back in the office. Thereafter, to initiate fresh proceedings, liberty should be granted to the respondent, following the due process.

It was agreed by the Counsel representing for the respondent that the said member of the panchayat had been disqualified but retained on the ground that the disqualification would have no bearing on the petitioner’s case, as the impugned resolution was passed before the declaration of petitioner disqualification.

In the present case, It was noticed by Justice Suman Shyam the member had voted against the petitioner and without her vote. The petitioner would not have been ousted from office. Justice Shyam also found no dispute about the fact that the member had incurred disqualification under the law prior the date of adoption of the impugned resolution. Justice Shyam found it unnecessary to delve into other aspects of the matter which includes the procedural formalities for declaring the member a disqualified candidate.

It is observed that the impugned resolution was declared to be vitiated and liable to be set aside. Further, the Court restored the petitioner to the office of the President of the Bongalmara Gaon Panchayat with immediate effect and it was stated by the court that the order will not stand in the way should the authorities or any member of the Gaon Panchayat propose a fresh motion of “no-confidence” against the petitioner and the due process of law needs to be followed.

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Halt DDA’s demolition action against jhuggis in Nizamuddin’s Gyaspur area, orders Delhi High Court

As per the JJ Rehabilitation and Relocation Policy 2015 and the Delhi Urban Shelter Improvement Board, the residents who can establish their residence prior to 01.01.2015 are eligible for rehabilitation under the JJ Rehabilitation and Relocation Policy 2015.

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plea in Delhi High Court seeking repatriation of 56 pregnant nurses

The Delhi High Court in the case Manoj Gupta & Ors. v. DDA & Ors observed and has ordered status quo on the Delhi Development Authority’s proposal to demolish jhuggi clusters in city’s Gyaspur area in Hazrat Nizamuddin. The vacation bench comprising of Justice Neena Bansal Krishna observed in the petition filled by the residents and the court granted an interim relief.

It was ordered by the court status quo till July 11, the next date of hearing.

The bench orally remarked that a ten-day delay in demolition won’t make a difference but if today it is demolished and later, we come to know that they were entitled, who’s going to… the bench will consider it on July 11, 2022 but in the Meanwhile, some protections are entitled them. Adding this, Status quo be maintained. If since 1995, they have been there, heavens won’t come down if for 10 more days they are protected.

In the plea the petitioner stated that the T-Huts settlement in the area, which was stated by the authorities to vacate. It has been in existence for almost two decades and compromise of 32 jhuggis or households.

In the plea it was alleged that the bulldozers have been parked around the camp and a DDA official has orally asked them to vacate the area and it is noted that till date no proper notice have been sent to them nor has DDA conducted any survey of the area.

Furthermore, the DDA did not provide any alternate arrangement for their rehabilitation which resulted in extreme distress among the residents.

Moreover, it was admitted by the petitioner that the land in question belongs to DDA and they may seek that status-quo to be maintained at the site. It was urged that the residents should not be physically dispose or evicted from the demolition site until the survey is conducted and rehabilitation is provided to the residents as per the DUSIB policy of 2015.

As per the JJ Rehabilitation and Relocation Policy 2015 and the Delhi Urban Shelter Improvement Board. The residents who can establish their residence prior to 01.01.2015 are eligible for rehabilitation under the JJ Rehabilitation and Relocation Policy 2015.

It is observed that in the case Ajay Maken v. Union of India, Reliance is placed on the Supreme Court decision and the High Court decision in the case Sudama Singh & Ors. v. Government of Delhi & Anr, it was held in the case that that removal of jhuggis without ensuring relocation would amount of gross violation of Fundamental Rights under Article 21 of the Constitution. Further, it was held that the agencies conducting the demolitions ought to conduct survey before undertaking any demolition.

It is submitted that these observations would apply across the board, in the entire NCT of Delhi.

Advocates Vrinda Bhandari, Shiyaz Razaq, Kaoliangpou Kamei, Jepi Y Chisho and Paul Kumar Kalai, represented the petitioner.

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