In a significant development with far reaching consequences that cannot be dismissed lightly, the Aurangabad Bench of Bombay High Court in Madhav Sathe & Anr v State of Maharashtra & Anr in Criminal Application No. 1120 of 2021 has dismissed a plea filed by two politician-applicants seeking quashing of a conviction order on the ground that they had settled the dispute with the victim-complainant. It must be apprised here that the applicants named Madhav Sathe and Shivaji Sonkamble were convicted under Sections 332 and 353 of the Indian Penal Code for assaulting and obstructing duty of a public servant (the complainant) and were sentenced to 6 months of rigorous imprisonment and fine of Rs 2000 by a Magistrate Court in Mukhed in Maharashtra. They filed an application seeking acquittal on the ground that the applicants had arrived at an amicable settlement with the complainant but it was rejected by the Sessions Court on the ground that the offence under Section 332 was non-compoundable. So then they approached the High Court Bench at Aurangabad.
To start with, Justice VK Jadhav who has authored this brief, brilliant, balanced and bold judgment for himself and Justice SG Dige first and foremost sets the ball rolling by unfolding the purpose of the petition in para 2 wherein it is put forth that, “This pertains to quashing of the criminal proceeding postconviction for non-compoundable offence on settlement between the applicants-convicts and respondent no.2-informant.”
To put things in perspective, the Bench then envisages in para 3 that, “Brief facts giving rise to the present criminal application are as follows:
a. Respondent no.2-informant is a public servant. On 13.05.2011 at about 13.00 hrs. in the office of Minor Irrigation, Mukhed, respondent no.2-complainant was busy with his official work. The applicants made a phone call to respondent no.2- complainant, however, he did not receive their phone call. Consequently, both the applicants went to his office and extended beating to him in the office itself. The respondent-informant sustained bleeding injury on his nose. He was rescued by the office staff. The respondent-informant was taken to the hospital. On the basis of the complaint lodged by the respondent-informant, crime no. 76 of 2011 came to be registered in the concerned police station and after completion of the investigation, charge-sheet came to be submitted before the court which is numbered as R.C.C. No. 104 of 2011. Both the accused persons were tried vide R.C.C. No. 104 of 2011 for the offence punishable under Sections 353, 332, 504 and 506(i) read with Section 34 of Indian Penal Code.
b. Learned Judicial Magistrate, First Class, Mukhed, District Nanded, by judgment and order dated 26.06.2013 in R.C.C. No. 104 of 2011, has convicted both the accused persons for the offence punishable under Sections 332 and 353 r/w 34 of IPC and sentenced them under Section 332 r/w 34 of IPC to suffer Rigorous Imprisonment for six months and to pay fine of Rs.2,000/- (Rupees Two Thousand only) each, in default to suffer Simple Imprisonment for one month. No separate sentence has been passed for the offence punishable under Section 353 r/w 34 of IPC.
c. Being aggrieved by the same, the applicants have preferred Criminal Appeal No. 12 of 2013 before the Sessions Court, Mukhed. The said criminal appeal is still pending before the Additional Sessions Judge, Mukhed. The applicants and respondent no.2-informant filed an application on 05.12.2018 below Exhibit 26 before the Additional Sessions Judge, Mukhed praying therein that the parties have arrived at an amicable settlement out of the court and thus, the applicants may be acquitted in view of the compromise. By order dated 12.03.2019 passed below Exhibit 26, the learned Additional Sessions Judge, Mukhed has rejected the application with the observations that the offence punishable under Section 332 of IPC is non-compoundable and as such the parties cannot be permitted to compound the said offence.
d. The applicants-original accused have thus approached this Court by filing the present Criminal Application under Section 482 of Criminal Procedure Code for quashing the criminal proceeding post-conviction for non-compoundable offence on settlement between them and the informant-complainant.”
Needless to say, after hearing both the sides, the Bench then observes in para 10 that, “We have carefully considered the submissions advanced by the learned counsel for the respective parties and the learned APP for the respondent-State. With their able assistance, we have perused the grounds taken in the application, annexures thereto, the reply filed by respondent no.2-informant along with the compromise deed and the case law cited by the respective parties.”
Simply put, the Bench then states in para 11 that, “In the case of Kiran Tulshiram Ingale (supra), the Division Bench of this Court has dealt with the preliminary objection raised by the respondent State to the maintainability of the application under Section 482 of Cr.P.C. for the purposes of quashing of the criminal proceedings at a stage when the criminal proceedings have led to conviction of the accused. The Division Bench has given a finding in the affirmative and upheld the maintainability of such application with detailed reasons. The Division Bench has referred the observations made by the Apex Court in the case of B. S. Joshi v. State of Haryana (2003 Cri.L.J. 2028). The Division Bench has answered the question regarding maintainability of an application filed under Section 482 of Cr.P.C. even after conviction of the applicant, as in the affirmative.”
Quite significantly, it cannot be lost on us that the Bench then without mincing any words observes unequivocally in para 12 that, “When the Special Leave Petition in Gian Singh v. State of Punjab and another. (2000) 15 SCC 118 came up for hearing, the two-Judge Bench of the Supreme Court doubted the correctness of the decisions of the Supreme Court in B. S. Joshi and others v. State of Haryana and another [(2003) 4 SCC 675], Nikhil Merchant v. Central Bureau of Investigation and another [(2008) 9 SCC 677] and Manoj Sharma v. State and others [(2008) 16 SCC 1] and referred the matter to a larger Bench. Hence, the question before the larger Bench was with regard to the inherent power of the High Court under Section 482 of Cr.P.C. for quashing criminal proceedings against an offender who has settled the dispute with the victim of the crime but the crime in which he is allegedly involved is non-compoundable under Section 320 of Cr.P.C. The larger Bench thus, in Gian Singh v. State of Punjab and Others [(2012) 10 SCC 303], in para 61, summarised the position that emerged from the discussion. Para 61 is reproduced hereinbelow:
“61. … the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz. : (1) to secure the ends of justice, or (ii) to prevent abuse of the process of any court. In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim’s family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity, etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and pre-dominatingly civil flavour stand on a different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim.
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In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that the criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.”
In para 58 of the judgment, the larger Bench of the Supreme Court has made the following observations which may be useful in deciding the present criminal application.
“58. Where the High Court quashes a criminal proceeding having regard to the fact that the dispute between the offender and the victim has been settled although the offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor. No doubt, crimes are acts which have harmful effect on the public and consist in wrongdoing that seriously endangers and threatens the well-being of the society and it is not safe to leave the crime-doer only because he and the victim have settled the dispute amicably or that the victim has been paid compensation, yet certain crimes have been made compoundable in law, with or without the permission of the court. In respect of serious offences like murder, rape, dacoity, etc., or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between the offender and the victim can have no legal sanction at all. However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to the victim and the offender and the victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or FIR if it is satisfied that on the face of such settlement, there is hardly any likelihood of the offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated. The above list is illustrative and not exhaustive. Each case will depend on its own facts and no hard-and-fast category can be prescribed.””
No less significant is what is then stated in para 13 that, “In the case of Maya Sanjay Khandare (supra) a Full Bench was constituted to answer the following two questions:
(A) In a prosecution which has culminated in a conviction, whether the power u/s. 482 Cr.P.C. ought to be exercised for quashing the prosecution/ conviction altogether, (instead of maintaining it and considering the issue of modification of the sentence) upon a settlement between the convict and the victim/complainant?
(B) Whether the broader principles/parameters as set out in Gian Singh v. State of Punjab and another (2012) 10 SCC 303, Narinder Singh v. State of Punjab (2014) 6 SCC 466 and Parbatbhai Aahir and others v. State of Gujrat (2017) 9 SCC 641 have been correctly applied in deciding Udhav Kisanrao Ghodse, Ajmatkhan Rahematkhan and Shivaji Haribhau Jawanhal?
In para 33, while answering question (a), the Full Bench has made the following observations:
“33. While answering Question (A) we may observe in the light of the settled legal position as under:
At the conclusion of the criminal trial the Court on finding the evidence on record led by the prosecution to be sufficient to prove the guilt of the accused would proceed to convict the accused. The remedy of challenging the order of conviction is available to the accused by way of an appeal. Any compromise entered into post-conviction for an non-compoundable offence cannot by itself result in acquittal of the accused. Similarly the Court has no power to compound any offence that is non-compoundable and not permitted to be compounded under Section 320 of the Code. The compromise entered into therefore is just a mitigating factor that can be taken into account while hearing the appeal/revision challenging the conviction and which factor has to be taken into consideration while imposing appropriate punishment/sentence. It is not permissible to set aside the judgment of conviction at the appellate/revisional stage only on the ground that the parties have entered into a compromise. In a given case the appellate Court/revisional Court also has the option of not accepting the compromise. Thus if the judgment of conviction cannot be set aside in an appeal/revision only on the ground that the parties have entered into a compromise similar result cannot be obtained in a proceeding under Section 482 of the Code.””
It is worth noting that the Bench then observes in para 15 that, “Though the Hon’ble Supreme Court in Gian Singh v. State of Punjab and Others (supra) has discussed certain categories of cases, however, further held that the list is illustrative and not exhaustive. Each case will depend on its own facts and no hard and fast category can be prescribed.”
Damningly, the Bench then reveals in para 16 that, “In the facts of the instant case, respondent no.2-informant is a public servant. The applicants are politicians. Applicant no. 1 herein is a Member of the Zilla Parishad. Respondent no.2- informant is a public servant working in the office of Minor Irrigation, Mukhed. At the relevant date, time and place, respondent no.2-informant was busy in discharging his official work. The applicants went there and extended him beating in the office itself on the ground that he did not receive their phone call.”
More damningly, the Bench then also is at pains to point out in para 17 that, “We have carefully gone through the affidavit-in-reply of respondent no.2-informant filed in the present application. In para 3 of the affidavit-in-reply, it is stated that the applicants are politicians having good future in politics and respondent no.2- informant is also in service. Though in the compromise petition, it is stated that the applicants have tendered an apology and therefore, respondent no.2-informant is not interested in their conviction, however, in our considered opinion, the applicants herein have not shown repentance on their part and even they have not assured as not to repeat the mistake in future.”
Most damningly, the Bench then is quite forthright to point out in para 18 that, “We have noticed that nowadays there is a growing tendency to make assault on public servants discharging their official duties under various pretext. There are cases of assault on the public servants in connection with excavation of sand illegally from the river bed, assault on doctors and hospital staff and causing damage to the public property, assault on R.T.O. officials by the errant drivers, assault on the officials of M.S.E.D.C.L. and the drivers and conductors of M.S.R.T.C., assault on police staff enforcing the Covid norms at public places etc. This tendency needs to be discouraged by taking stringent view in such matters. We are aware that each case will depend on its own facts and no straight jacket formula can be prepared to deal with it.”
Finally and far most significantly, the Bench then holds in para 19 that, “In the facts of the instant case, the applicants-accused persons have settled the matter amicably with respondent no.2- complainant (informant) for their good future in politics. In our considered opinion, the ends of justice could not be secured by accepting such type of settlement. We are not inclined to set up an altogether new trend encouraging the politicians, as in the present case, to settle their dispute post-conviction to achieve better future political prospects. However, the appeal preferred by the applicants against the judgment and order of conviction against them bearing Criminal Appeal No. 12 of 2013 is still pending before the learned Additional Sessions Judge, Mukhed. Thus, without getting influenced by the observations made herein above, the learned Judge of the appellate court may consider the settlement arrived at between the parties as a mitigating circumstance to reduce the sentence. However, we are not inclined to quash the criminal proceedings. Hence, we proceed to pass the following order:
Criminal Application No. 1120 of 2021 is hereby dismissed.”
Of course, it has to be said after considering this case from all angles that Assistant Public Prosecutor MM Nerlikar has very rightly pointed out to the conviction order which recorded that the “conduct of the accused is unwarranted and if dealt with soft hands, a very bad message will go to the society”. It also cannot be lightly dismissed that the applicants did not show repentance on their part or assurance that such conduct will not be repeated in future. What also went against the applicants is that the Court held that the settlement arrived between the parties was not enough to secure the ends of justice in the present case. But we also need to bear in mind that the Aurangabad Bench of Bombay High Court left it to the Sessions Court to consider the settlement arrived at between parties would be a mitigating circumstance to reduce the sentence awarded to the applicants. The message sent out in this case is pretty loud and clear: Court does not want to encourage politicians to settle cases against them after conviction. The reason is quite ostensible: If this is allowed unhindered then the politicians will get away after doing anything by pressurizing the other party that is the complainant or offering him bribe and settle the case which is nothing but a mockery of law, justice and the “rule of due process of law”!
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GAUHATI HIGH COURT QUASHES NO-CONFIDENCE MOTION AGAINST GRAM PANCHAYAT PRESIDENT CITING PARTICIPATION OF MEMBER DISQUALIFIED FOR HAVING THREE CHILDREN
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.
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.
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.
TELANGANA HIGH COURT: PLACE OF RESIDENCE OF THE ARBITRATOR WOULD NOT BE THE SEAT OF ARBITRATION
The High Court of Telangana in the case M/s S. Square Infra v. Garneni Chalapathi Rao observed and held that the place of residence of the arbitrator would not determine the seat of arbitration.
The Single bench comprising of Justice P. Sree Sudha observed and held that merely because an arbitrator residing in Hyderabad has been appointed, it does not mean that only the Courts at Hyderabad would have the jurisdiction to decide all the matters arising out of arbitration agreement.
Facts of the Case:
In the present case, after the dispute arouse between the parties, the respondent sent a letter to the petitioner for nomination an arbitrator who is residing in Hyderabad. To its said notice, petitioner replied and declined the appointment of the arbitrator for the reason that there was no dispute which required the appointment of an arbitrator.
A suit was filled by the respondent before the VII Additional District Judge Sangareddy, seeking for relief of permanent injunction. An application was filled by the petitioner under Section 8 of the Arbitration & Conciliation Act and the parties referred to the arbitration.
An application was filled by the respondent under section 9 of the Arbitration & Conciliation Act before the Principal District Judge, Sangareddy, Subsequently, an application was filled by the petitioner for transferring the application from the Court at Sangareddy to Court at Hyderabad.
Contentions made by Parties:
On the following grounds, the petitioner sought the transfer of application.
An arbitrator residing in Hyderabad was nominated to respondent. However, only the courts in Hyderabad would have the jurisdiction to decide all the matters arising out of the arbitration.
It was stated that the nomination of an arbitrator residing in Hyderabad amounted to designating Hyderabad as the Seat of Arbitration.
On the following grounds, the respondent countered the submissions of the petitioner:
An application was filled by the petitioner under Section 8 of the A&C Act before the Court at Sangareddy. However, in terms of Section 42 of the A&C Act, only the court at Sangareddy would have the jurisdiction to decide all the matters arising out of arbitration.
The Court held that the seat of arbitration would not be decide by the place of residence of the arbitrator.
The argument of the petitioner was rejected by the court that since the respondent had initially nominated an arbitrator residing in Hyderabad, the Hyderabad Court would have the jurisdiction.
The court stated that merely because a party has nominated an arbitrator who resides in Hyderabad, the same would not designate Hyderabad as the Seat of arbitration in absence of any designation of the seat under the arbitration agreement.
It was further stated by the court that the application filled by the petitioner filled under Section 8 application before the Court at Sangareddy consequent to which the parties were referred to arbitration. Therefore, the Court would have the jurisdiction, in terms of Section 42 of the A&C Act.
The Transfer petition was dismissed by the Court.
DELHI HIGH COURT REMANDS IN THE MATTER BACK TO ASSESSING OFFICER AFTER SETTING ASIDE: JUST 3 DAYS’ TIME GRANTED TO RESPOND TO THE INCOME TAX NOTICE
The Delhi High Court in the case Shubham Thakral Vs ITO, the Delhi bench comprising of Justice Manmohan and Justice Manmeet Pritam Singh Arora observed and remanded the matter back to the assessing officer as just 3 days’ time was granted to respond to the income tax notice.
In the present case, the petitioner/assessee assailed the notice under Section 148A (b) of the Income Tax Act, 1961 and the order passed under Section 148A (d) for the Assessment Year 2018–19.
It was contended by the assessee that only three days’ time was granted to the assessee to respond, as against the mandatory statutory period of at least seven days. However, despite of the fact that the annexure attached to the notice gave the petitioner eight days to respond, the e-filing submission portal was closed earlier, in violation of Section 148A (b) of the Income Tax Act.
Furthermore, the petitioner relied on the decision of Delhi High Court, in the case of Shri Sai Co-operative Thrift and Credit Society Ltd versus ITO, the Delhi High Court in the case held that under Section 148A (b), a minimum time of seven days has to be granted to the assessee to file its reply to the show cause notice.
No objections were raised by the department/respondent to the matter being returned to the Assessing Officer for a fresh decision in accordance with the law. Accordingly, the court set aside the order passed under Section 148A (d) for the Assessment Year 2018-19. The Assessing officer was directed by the court to pass a fresh reasoned order in accordance with the law after considering the reply of the petitioner, which was directed to be filed within a week.
ALLAHABAD HIGH COURT: ADVOCATES SHOULDN’T ADVISE CLIENTS TO REAGITATE MATTERS IF THERE IS NO ERROR APPARENT ON FACE OF RECORD
The Allahabad High Court in the case Malhan and 17 Others Vs. State Of U.P. And Another observed and stated that an advocate should be given such a piece of advice when there is no error apparent on the face of the record nor was there any reason why the matter be re-agitated it was finally decided.
The bench comprising of Justice Dr. Kaushal Jayendra Thaker and Justice Vivek Varma observed while dealing with the civil review application wherein the bench observed the concerned advised his client to make a chance by filling the instant review application after a period of six year.
In the present case, a civil review petition was filled along with the application under section 5 of the Limitation Act, 1963., the application was filled for seeking condonation of delay in filling the application, the application was filled with a delay of six years i.e., 1900 days.
It was stated by the applicant that the review application could not be filled due to the blockage of public transportation on account of the COVID-19 guidelines.
Moreover, the court observed that the appeals were disposed of by the Apex Court in the year 2016 and only in 2020-2021, the pandemic struck India and furthermore, it cannot be said that due to the COVID guidelines the public transportation was blocked and however, the applicant could not come to Allahabad Court to file review.
Further, it was stated that the court asked the counsel for the review applicants to explain the delay in filling the review application, to which the council gave a strange reply that the counsel had advised the clients that they must take a chance by filling this review application after a period of six years.
Following this, the Court observed:
The court noted that an advocate should not give such an advice when there is no error apparent on the face of record nor was there any other reason that when the matter was finally decided, why the matter be re-agitated.
It was stated that the court has no reason to condone the delay of six years as the same was not explained as to why this review application is filed after such an inordinate delay.
The Court opined that the lapse in approaching the court within the time is understandable but a total inaction for long period of delay without any explanation whatsoever and that too in absence of showing any sincere attempt on the part of suiter, this would add to his negligence and the relevant factor going against him.
The court observed that careless and reckless is shown by the review applicant in approaching the court and due to the condemnation of delay in the application with a token cost of Rs.10,000/, the court dismissed the application.
SUPREME COURT CRITICISES HIGH COURT: POSTING ANTICIPATORY BAIL PLEA AFTER TWO MONTHS CAN’T BE APPRECIATED
The Supreme Court in the case Sanjay versus The State (NCT of Delhi) & ANR observed and stated that in the case where personal liberty is involved, the court is expected to pass orders at the earliest while taking into account the merits of the matter in one way or other. Further, the top court observed that posting of an application for anticipatory bail after a couple of months cannot be appreciated by the court.
The bench comprising of Justice C. T. Ravikumar and the Justice Sudhanshu Dhulia was hearing a June 2 SLP against the Delhi High Court in a petition filed under section 420, 467, 468, 471, 120-B, 34 of the Indian Penal Code, 1860 for seeking anticipatory bail in a 2022 FIR, a notice is issued. It was stated that the learned APP for the state is present and accepts the notice and seeks time to file status report. The High Court in the impugned order stated that Let the status report be filed by the state prior to the next date with an advance copy to the learned counsel for the petitioner. The matter is to be list on 31.08.2022.
It was noted by the bench comprising of Justice Ravikumar and the Justice Dhulia that in the captioned Special Leave Petition, the grievance of the petitioner is that the application for anticipatory bail moved by the petitioner, being Crl. M.A. No. 11480 of 2022 in Bail Application No. 1751 of 2022 without granting any interim protection, was posted to 31.08.2022. on 24.05.2022, the bail application was moved on.
However, the bench asserted that the bench is of the considered view that in a matter involving personal liberty, the Court is expected to to pass orders at the earliest while taking into account the merits of the matter in one way or other.
It was declared by the bench that at any rate posting an application for anticipatory bail after a couple of months cannot be appreciated by the court.
Further, the bench requested to the High Court to dispose off the application for anticipatory bail on its own merits and in accordance with law expeditiously, preferably within a period of three weeks after reopening of the Court. Adding to it, the bench stated that if the main application could not be disposed off, for any reason, within the stipulated time, relief sought for in the interlocutory and on and on its own merits, the application shall be considered.
While disposing of the SLP, the bench directed in its order that we grant interim protection from arrest to the petitioner herein, Till such time.
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